Webster v. United States, No. 09-2308 (7th Cir. 2011)

In 1995 a jury convicted petitioner of cocaine­ trafficking and tax-fraud. Direct appeals were unsuccessful. He later discovered that a member of the jury had called in sick one day in the middle of deliberations. The government maintained that the rest of the jury was sent home and did not deliberate that day. After the district judge sent an investigator to interview the jurors, the court denied a habeas corpus petition, holding that petitioner procedurally defaulted his claim by failing to raise it in direct appeal. The court also found insufficient proof of improper deliberations. The Seventh Circuit affirmed, first holding that the 12-person jury claim was not defaulted. Petitioner was not aware of the situation during direct appeal and adequately raised it in his habeas petition. The investigator's testimony about interviews with jurors, who gave inconsistent information, was inadmissible, but the court's finding was based on normal judicial procedures and was not clearly erroneous. The court pointed out that the temporary absence of a juror, who returned before the verdict, might be subject to harmless error review.