In the
United States Court of Appeals
For the Seventh Circuit

No. 00-1096

KATHLEEN A. BRAUN,

Petitioner-Appellee,

v.

BARBARA POWELL,

Respondent-Appellant.



Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 97 C 423--Lynn Adelman, Judge.


Argued June 7, 2000--Decided September 18, 2000



  Before POSNER, COFFEY and RIPPLE, Circuit Judges.

  RIPPLE, Circuit Judge. Kathleen Braun was
convicted of murder in 1976. While her motion for
a new trial was pending, she escaped from prison.
After her return to custody in 1984, she filed a
motion in Wisconsin state court to vacate the
judgment of conviction. The Wisconsin circuit
court denied her motion. The Court of Appeals of
Wisconsin affirmed; the Supreme Court of
Wisconsin then granted review and affirmed. Ms.
Braun later filed a petition for federal habeas
corpus relief; the district court granted the
petition. For the reasons set forth in the
following opinion, we reverse the judgment of the
district court.

I
BACKGROUND

  Kathleen Braun was arrested in 1975 and charged
with the murder of William Weber. The primary
witness against Ms. Braun was Earl Jeffrey
Seymour. Seymour also had been arrested for
Weber’s murder; he testified against Ms. Braun
pursuant to a plea agreement. A jury convicted
Ms. Braun in December 1976 after a six-week
trial, and she was sentenced to life
imprisonment.

  During the trial, the trial judge excluded from
the courtroom a man named Mr. Mane. Mane had been
a member of the jury venire panel but had been
excused because he had said that he was friendly
to the defense. After he had been excused, he
returned to the courtroom to watch the trial. The
trial court then excluded Mane from the
courtroom, stating that it had a policy of
excluding all former members of the venire panel
from remaining in the courtroom during the trial.

  In August 1977, Ms. Braun filed a post-
conviction motion under Wisconsin Statutes sec.
974.02./1 In December, before the trial court
could rule on the sec. 974.02 motion, Ms. Braun
escaped from prison. In May 1978, the trial court
dismissed Ms. Braun’s motion on the ground that
she had escaped from prison.

  Ms. Braun was involuntarily returned to custody
in 1984. In 1988, she filed a Motion to Vacate
Judgment pursuant to Wisconsin Statutes sec.
974.06./2 Ms. Braun argued that the trial court
had violated her Sixth Amendment right to a
public trial by excluding Mane. She also
contended that the prosecutor had committed
misconduct by not disclosing fully the terms of
the plea agreement under which Seymour testified
and, further, that the failure to disclose the
full terms of the plea agreement infringed on her
constitutional right to cross-examine witnesses.

  The trial court denied her motion. The Court of
Appeals of Wisconsin affirmed. See State v.
Braun, 504 N.W.2d 118 (Wis. Ct. App. 1993). The
Supreme Court of Wisconsin granted review in the
case and also affirmed. See State v. Braun, 516
N.W.2d 740 (Wis. 1994). The Supreme Court of
Wisconsin did not reach the merits of Ms. Braun’s
Sixth Amendment and prosecutorial misconduct
claims. Instead, it held that she was precluded
from bringing a motion under sec. 974.06 because,
by her escape, she had "forfeited all claims she
either raised or could have raised" in the
earlier post-conviction motion under sec. 974.02.
Id. at 745.

  Subsequently, Ms. Braun brought a petition for
habeas corpus in the district court. The court
granted the petition. See Braun v. Powell, 77 F.
Supp.2d 973 (E.D. Wis. 1999). The court first
held that Ms. Braun’s escape had not caused an
abandonment of her constitutional claims.
Addressing the merits of those claims, the court
held that the exclusion of Mane had violated Ms.
Braun’s right to a public trial and that such a
violation required the issuance of the writ of
habeas corpus. The court also determined that
prosecutorial misconduct had occurred in
violation of the Constitution, but that the
violation was harmless; similarly, it found
harmless any unconstitutional restriction on Ms.
Braun’s ability to cross-examine witnesses.

II
DISCUSSION
A. Procedural Default

  We review de novo the district court’s holding
that Ms. Braun did not commit procedural default
during the state court proceedings. See Franklin
v. Gilmore, 188 F.3d 877, 882 (7th Cir. 1999),
cert. denied, 120 S. Ct. 1535 (2000); Fields v.
Calderon, 125 F.3d 757, 759-60 (9th Cir. 1997);
Couch v. Jabe, 951 F.2d 94, 96 (6th Cir. 1991)
(per curiam). In a federal habeas corpus
proceeding, we look to state law to determine
whether a claim has been defaulted. See Thomas v.
McCaughtry, 201 F.3d 995, 1000 (7th Cir. 2000);
Turentine v. Miller, 80 F.3d 222, 224 (7th Cir.
1996). If the state court declined to reach the
merits of the petitioner’s claim because of a
procedural default, that default must constitute
an independent and adequate state-law ground in
order to be a bar to federal habeas relief. See
Coleman v. Thompson, 501 U.S. 722, 729-30 (1991);
Schaff v. Snyder, 190 F.3d 513, 524 (7th Cir.
1999).

1.

  To conclude that the procedural default
constitutes an independent basis for the state
court’s ruling, we must be convinced that the
last state court to consider the question
actually relied on procedural default as the
basis for its decision. See Willis v. Aiken, 8
F.3d 556, 561 (7th Cir. 1993); Prihoda v.
McCaughtry, 910 F.2d 1379, 1382 (7th Cir. 1990).
The state court therefore must have "clearly and
expressly" relied on procedural default as the
basis of its ruling. Harris v. Reed, 489 U.S.
255, 263 (1989) (quotation marks omitted);
Jenkins v. Nelson, 157 F.3d 485, 491 (7th Cir.
1998), cert. denied, 119 S. Ct. 2402 (1999); Rose
v. Lane, 910 F.2d 400, 402 (7th Cir. 1990). The
independence of the ground of procedural default
is not at issue in this case. The Supreme Court
of Wisconsin unambiguously based its holding on
its view that Ms. Braun’s escape constituted an
abandonment of her right to bring an appeal. Ms.
Braun does not argue that procedural default was
not an independent basis for the state court’s
ruling.

2.

  To be an adequate ground of decision, the
state’s procedural rule must be both "firmly
established and regularly followed." Ford v.
Georgia, 498 U.S. 411, 423-24 (1991) (quoting
James v. Kentucky, 466 U.S. 341, 348 (1984));
Franklin, 188 F.3d at 882; Rosa v. Peters, 36
F.3d 625, 633 (7th Cir. 1993). A procedural
ground is not adequate, however, unless it is
applied in a "consistent and principled way"; it
cannot be employed "infrequently, unexpectedly,
or freakishly." Thomas, 201 F.3d at 1000; Bobo v.
Kolb, 969 F.2d 391, 399 (7th Cir. 1992)
(quotation marks omitted); Prihoda, 910 F.2d at
1383. A state procedural rule is not an adequate
ground for finding default if the prisoner "could
not fairly be deemed to have been apprised of its
existence" at the time she acted. NAACP v.
Alabama ex rel. Patterson, 357 U.S. 449, 457
(1958); Moore, 148 F.3d at 709 (quoting NAACP).

  We must now consider whether procedural default
was an adequate basis for the state court’s
ruling in this case. This task is complicated
significantly by changes in the jurisprudence of
Wisconsin. The earlier precedent of this court
also must guide our inquiry.

  After her conviction, Ms. Braun moved for post-
conviction relief under sec. 974.02, but the
trial court dismissed the motion because of her
escape while the motion was pending. She did not
appeal that dismissal. We must consider the
effect of Ms. Braun’s failure to appeal under
Wisconsin law as it existed at the time of Ms.
Braun’s escape. Specifically, we must determine
whether her failure to appeal that dismissal
automatically foreclosed a later collateral
attack under sec. 974.06 raising her
constitutional claims. As we shall discuss more
fully in the paragraphs that follow, we must
conclude that the ruling of the Supreme Court of
Wisconsin is not an adequate ground upon which to
preclude federal habeas review.

a.

  Initially, we examine the procedure that a
prisoner normally would have followed, at the
time of Ms. Braun’s conviction, in order to
challenge her conviction in the Wisconsin state
courts. After conviction, the prisoner’s first
challenge would have been a motion under sec.
974.02. The sec. 974.02 motion would have been
considered by the state trial court. If the trial
court denied the motion, the prisoner could have
appealed to the Court of Appeals of Wisconsin
and, if necessary, to the Supreme Court of
Wisconsin. These appeals would have constituted
the prisoner’s direct appeal. After the
completion of the direct appeal, the prisoner
then could have filed a collateral challenge
under sec. 974.06. The prisoner first would have
filed a sec. 974.06 motion in the trial court. If
relief was denied in that court, the prisoner
would, once again, have the opportunity to appeal
to the Court of Appeals of Wisconsin and then the
Supreme Court of Wisconsin.

  Ms. Braun, because of her escape, did not follow
this procedure. She escaped while her sec. 974.02
motion was pending in the state trial court. When
that motion was dismissed, Ms. Braun, still an
escapee, did not appeal to the Court of Appeals.
Following her recapture, she filed a sec. 974.06
motion with the trial court. After that sec.
974.06 motion was denied, she appealed to the
Court of Appeals of Wisconsin and then to the
Supreme Court of Wisconsin. As we have noted, the
Supreme Court of Wisconsin held that Ms. Braun
could not bring these post-conviction claims
because her escape from prison and subsequent
fugitive status had constituted a forfeiture of
relief. When those challenges were unsuccessful,
she filed her habeas petition in federal court.

  We first consider in detail the implications of
Ms. Braun’s failure to take an appeal from the
dismissal of her sec. 974.02 motion for a new
trial. Because Ms. Braun failed to take an appeal
from that dismissal, she never presented her
arguments to the Court of Appeals of Wisconsin or
to the Supreme Court of Wisconsin.

  Putting aside for the moment her escape while
the motion was pending in the state trial court,
it is quite clear that, at that time, the failure
to raise issues of constitutional magnitude on
direct appeal did not prevent those issues from
being raised in a later collateral attack. In
Bergenthal v. State, 242 N.W.2d 199 (Wis. 1976),
the Supreme Court of Wisconsin considered the
merits of a prisoner’s constitutional claim under
sec. 974.06. The prisoner had taken a direct
appeal to the Supreme Court but, in that direct
appeal, had not raised one of the issues
addressed in his sec. 974.06 motion: a claim that
the government unconstitutionally had suppressed
evidence. See Brady v. Maryland, 373 U.S. 83
(1963). Later, the prisoner brought an action
under sec. 974.06, raised the Brady issue, and,
in due course, brought it to the Supreme Court of
Wisconsin. The Supreme Court of Wisconsin held
that "[e]ven though the issue might properly have
been raised on appeal, it presents an issue of
significant constitutional proportions and,
therefore, must be considered in this motion for
postconviction relief." Bergenthal, 242 N.W.2d at
203. Thus, after Bergenthal, a constitutional
claim not raised on direct appeal could be raised
in a collateral attack under sec. 974.06.

  The Supreme Court of Wisconsin’s holding in
Bergenthal remained the governing rule in
Wisconsin until 1994. In that year, however, the
Supreme Court of Wisconsin explicitly overruled
Bergenthal, and held that an issue must be raised
on direct appeal in order to be considered on a
motion under sec. 974.06. See State v. Escalona-
Naranjo, 517 N.W.2d 157, 162 (Wis. 1994) ("We now
overrule the holding in Bergenthal which stated
that although a defendant fails to raise a
constitutional issue on appeal, the issue still
must be considered when raised in a subsequent
sec. 974.06 motion."). Escalona-Naranjo was a
companion case to Ms. Braun’s sec. 974.06 case;
the two cases were decided by the Supreme Court
on the same day. Notably, the Justices relied on
Escalona-Naranjo in deciding Ms. Braun’s case.
See Braun, 516 N.W.2d at 745 (citing Escalona-
Naranjo).

  At the time Ms. Braun abandoned her direct
appeal, Bergenthal was the governing rule in
Wisconsin. Therefore, Ms. Braun was entitled to
conclude that a constitutional issue not raised
on direct appeal could be brought later through a
motion under sec. 974.06. Consequently, as this
court already has made explicit, the rule of
Escalona-Naranjo cannot be the ground of a
procedural default for purposes of barring
federal habeas review when the state post-trial
motion was filed after Bergenthal but before
Escalona-Naranjo. See Liegakos v. Cooke, 106 F.3d
1381, 1385 (7th Cir. 1997) ("[T]he doctrine of
Escalona-Naranjo is not an ’adequate’ state
ground for appeals briefed before its
announcement."); see also Liegakos v. Cooke, 108
F.3d 144, 145 (7th Cir. 1997) (on petition for
rehearing) (per curiam) ("Our opinion holds that
prisoners whose direct appeals came after
Bergenthal v. State, but before Escalona-Naranjo,
are entitled to raise constitutional arguments in
federal court under 28 U.S.C. sec. 2254 without
justifying their omission from the briefs on
direct appeal." (citation omitted)). Thus, the
rule of Escalona-Naranjo does not render Ms.
Braun in procedural default.

  The State points out that, after the trial court
rejected her sec. 974.02 motion, Ms. Braun not
only failed to raise these arguments to the Court
of Appeals of Wisconsin and to the Supreme Court
of Wisconsin, but she failed to take any direct
appeal on any issue to those tribunals. We do not
believe, however, that this distinction is a
significant one. Prior to Bergenthal, the Supreme
Court of Wisconsin had held that "[m]erely
because a direct appeal was not taken does not
mean that a 974.06 motion cannot be made later."
State v. Loop, 222 N.W.2d 694, 696 (Wis. 1974).
The court made clear, however, that the only
issues that could be raised under sec. 974.06
after being abandoned on direct appeal were those
of constitutional magnitude. Indeed, Loop
specifically held that exhaustion on direct
appeal was not required before bringing a
constitutional claim under sec. 974.06./3 Thus,
under the rationale in Loop, Ms. Braun’s failure
to take any appeal does not, by itself, operate
as a procedural bar to her later claims.

   The State also contends that Ms. Braun’s motion
under sec. 974.06 must be regarded as an improper
attempt to relitigate claims already decided. It
submits that, because the state trial court ruled
against Ms. Braun in its disposition of the
motion under sec. 974.02, that her claims have
been decided on the merits, and therefore could
not be relitigated in any subsequent proceeding
under sec. 974.06.

  The State is correct that, at the time of Ms.
Braun’s escape, issues actually raised in a
direct appeal could not be relitigated on a sec.
974.06 motion. The Supreme Court of Wisconsin had
held that "[t]he motion [under sec. 974.06] must
not be used to raise issues disposed of by a
previous appeal." Peterson, 195 N.W.2d at 845;
see also Smith v. State, 217 N.W.2d 257, 258 n.6
(Wis. 1974) (quoting Peterson)./4 It appears,
however, that the Supreme Court of Wisconsin
applied this rule only when the issues had been
presented to the appellate courts. The result in
Bergenthal demonstrates that the Peterson bar
applied only when the denial of the post-trial
motion for a new trial was actually appealed. In
Bergenthal, the trial court reached the merits of
the petitioner’s Brady claim in adjudicating the
post-trial motion for a new trial. See
Bergenthal, 242 N.W.2d at 202 (describing trial
court’s resolution of post-trial motion).
Nonetheless, the petitioner was able to bring his
constitutional claim on a later sec. 974.06
motion; the Supreme Court of Wisconsin did not
consider Peterson a bar to its review. We must
conclude that, at the time of Ms. Braun’s escape,
Wisconsin would permit constitutional claims
raised in a motion under sec. 974.02 to be
relitigated on a sec. 974.06 motion when the
earlier sec. 974.02 motion had not been
scrutinized by the appellate courts. Because Ms.
Braun did not bring a direct appeal, but instead
abandoned her appeal after the trial court denied
her motion for a new trial, the Peterson bar
would not have applied to her constitutional
claim. Her sec. 974.06 motion therefore cannot be
characterized as an improper attempt to
relitigate claims already decided./5

  In summary, Ms. Braun’s failure to raise her
constitutional claims in a direct appeal does
not, standing alone, foreclose the opportunity to
raise those claims in a later motion under sec.
974.06. Her sec. 974.06 motion was not an
improper attempt to relitigate matters already
decided.

b.

  Although, in the usual situation at the time of
Ms. Braun’s escape, the failure to perfect a
direct appeal did not foreclose a later
collateral attack, we also must consider whether
the nature of Ms. Braun’s failure to appeal--her
escape from prison--affects her ability to bring
a later motion under sec. 974.06. In many
American jurisdictions, "[d]isposition by
dismissal of pending appeals of escaped prisoners
is a longstanding and established principle of
American law." Estelle v. Dorrough, 420 U.S. 534,
537 (1975). This "fugitive disentitlement"
doctrine, when clearly applied by a state, may be
an independent and adequate state procedural
ground for finding default. See Wood v. Hall, 130
F.3d 373, 377-78 (9th Cir. 1997); Schleeper v.
Groose, 36 F.3d 735, 736-37 (8th Cir. 1994);
Feigley v. Fulcomer, 833 F.2d 29, 30 (3d Cir.
1987). Although Wisconsin appears to have adopted
a broader version of this doctrine in its review
of Ms. Braun’s case, our task, in determining
whether there has been a procedural default that
bars federal habeas review, is to determine
whether Wisconsin had a clear fugitive
disentitlement doctrine at the time of Ms.
Braun’s escape. Specifically, we must determine
whether it was clear in December 1977 that a
prisoner escaping during the pendency of her
motion under sec. 974.02 would recognize that she
had abandoned her right to later bring a
collateral attack under sec. 974.06.

  The critical case in our inquiry is State v.
John, 211 N.W.2d 463 (Wis. 1973). The parties
agree that John was the Supreme Court of
Wisconsin’s only discussion of the fugitive
disentitlement doctrine prior to Ms. Braun’s
escape. The appeal in John arose in a slightly
different procedural posture than Ms. Braun’s. In
that case, John had pleaded guilty to aggravated
battery, but then filed a motion for
postconviction relief under sec. 974.06. The
trial court scheduled a hearing on that motion,
but at the time of the hearing, was informed that
John had escaped. Even though he was not in the
custody of the State of Wisconsin, John brought
an appeal.

  The Supreme Court of Wisconsin, in deciding
John, acknowledged that the American courts
applying the fugitive disentitlement doctrine had
relied upon several different rationales to
justify its invocation. It noted that some courts
had grounded the doctrine on a waiver theory;
others had relied on a mootness theory; some on
an abandonment theory. Having surveyed these
approaches, the Supreme Court of Wisconsin then
wrote that its use of the doctrine in John would
rest on "a narrower ground and perhaps a stronger
one." 211 N.W.2d at 465. Summarizing its holding,
it wrote:

When a convict escapes and puts himself in a
position where he cannot aid the court which
needs his testimony in the determination of his
petition, he has frustrated the administration of
justice, made it impossible for the court to
consider his petition, and has abandoned his
application for relief on the merits.

211 N.W.2d at 466.

  The decision of the Supreme Court of Wisconsin
to ground the fugitive disentitlement doctrine on
such a narrow ground, especially when it
specifically acknowledged that broader bases
existed, renders the doctrine an ineffective
foundation for use as an adequate state ground to
bar federal habeas relief in a case such as this
one. A prisoner escaping from Wisconsin custody
in 1977 was not on notice that failure to
prosecute a motion for relief under sec. 974.02
would result in the loss of the right to later
bring a motion for relief under sec. 974.06. The
prisoner would be on notice that Wisconsin had
limited its fugitive disentitlement doctrine to
apply only in cases where the absence of the
prisoner prevented the court from receiving from
that prisoner information necessary to the
adjudication of the matter before the court. Ms.
Braun therefore would not have been given notice,
as required by our case law, that her escape
would preclude her later filing a sec. 974.06
motion.

B.   Merits

  Because we have concluded that the State may not
rely upon an adequate and independent state
ground, we, like our colleague in the district
court, must address the merits of the habeas
petition. The petition in this case was filed
after the effective date of the Antiterrorism and
Effective Death Penalty Act of 1996 ("AEDPA").
Therefore the standard of review contained in
that Act governs Ms. Braun’s claims. See Lindh v.
Murphy, 521 U.S. 320, 322-23, 335, 336 (1997). As
amended by AEDPA, the federal habeas statute now
allows federal courts to grant habeas relief only
if the state courts’ denial of relief "was
contrary to, or involved an unreasonable
application of, clearly established Federal law,
as determined by the Supreme Court of the United
States" or "was based on an unreasonable
determination of the facts in light of the
evidence presented." 28 U.S.C. sec. 2254(d). This
standard only applies, however, to a "claim that
was adjudicated on the merits in State court
proceedings." 28 U.S.C. sec. 2254(d). In this
case, the Supreme Court of Wisconsin disposed of
Ms. Braun’s claims without having reached the
merits. Therefore, we cannot characterize these
claims as having been adjudicated on the merits
by the state court. Accordingly, we shall not
employ the standard of review set forth in AEDPA
but, rather, must rely upon the general standard
as set forth in 28 U.S.C. sec. 2243. See Moore v.
Parke, 148 F.3d 705, 708 (7th Cir. 1998). This
standard requires us to "dispose of the matter as
law and justice require." 28 U.S.C. sec. 2243.

1.

  Ms. Braun contends that her right to a public
trial, as guaranteed by the Sixth Amendment and
made applicable to the states through the
Fourteenth Amendment, see Gannett Co. v.
DePasquale, 443 U.S. 368, 379 (1979), was
violated by the state trial judge’s exclusion of
Mane from the courtroom. This individual had been
a member of the jury venire and, after he was not
chosen to sit as a juror, he sought to remain in
the courtroom to watch the proceedings. The trial
judge excluded him from the courtroom on the
ground that the judge had a policy of not
permitting persons who had served on the venire
from remaining in the courtroom.

  It has long been established that the Sixth
Amendment right to a public trial is for the
protection of the accused. See Waller v. Georgia,
467 U.S. 39, 46 (1984); Estes v. State of Texas,
381 U.S. 532, 538 (1965). Determining with any
precision the contours of this right is a
difficult task. Existing case law, although
setting the outer boundaries, gives comparatively
little guidance with respect to "gray areas."
Precedents reversing convictions on the ground
that the public trial right was violated
generally deal with more substantial exclusions
than the one at bar. Typically, when habeas
relief was granted or a new trial required, the
courtroom was totally closed to the general
public at some critical juncture in the
proceedings; or, in other cases, the court
excluded a friend or relative of the defendant,
in contravention of the Supreme Court’s
requirement, announced in In re Oliver, 333 U.S.
257, 271-72 (1948), that such individuals be
allowed in the courtroom./6
  In determining the contours of the right to a
public trial, our colleagues in the other
circuits also have recognized that there are
certain instances in which the exclusion cannot
be characterized properly as implicating the
constitutional guarantee. Several cases have held
that the exclusion of spectators from a trial
simply did not rise to the level of a
constitutional violation. See Gonzalez v.
Quinones, 211 F.3d 735, 737 (2d Cir. 2000) (court
officer locked courtroom doors, without knowledge
of the trial judge, during the testimony of two
witnesses); United States v. Al-Smadi, 15 F.3d
153, 154-55 (10th Cir. 1994) (defendant’s wife
and child unable to enter courtroom when trial
continued 20 minutes past the closing of the
federal building in which the courtroom was
located); Snyder v. Coiner, 510 F.2d 224, 230
(4th Cir. 1975) (courtroom locked for a short
time without knowledge of trial judge during
arguments of counsel before the jury). Judge
Calabresi, writing for the Second Circuit, has
explained succinctly how identifying those cases
in which the circumstances do not implicate the
constitutional guarantee differs from a harmless
error analysis:

A triviality standard, properly understood, does
not dismiss a defendant’s claim on the grounds
that the defendant was guilty anyway or that he
did not suffer "prejudice" or "specific injury."
It is, in other words, very different from a
harmless error inquiry. It looks, rather, to
whether the actions of the court and the effect
that they had on the conduct of the trial
deprived the defendant--whether otherwise
innocent or guilty--of the protections conferred
by the Sixth Amendment.

Peterson v. Williams, 85 F.3d 39, 42 (2d Cir.
1996).

  Given the many factual circumstances that a
court must analyze in assessing whether the
closure at issue in a particular case is one that
implicates the constitutional guarantee of a
public trial, the methodology employed by the
trial court must be the focal point of appellate
review. Here, Peterson suggests a thoughtful and
helpful approach. The court distilled from the
Supreme Court’s decision in Waller four reasons
that animate the right to a public trial:

1) to ensure a fair trial; 2) to remind the
prosecutor and judge of their responsibility to
the accused and the importance of their
functions; 3) to encourage witnesses to come
forward; and 4) to discourage perjury.

Id. at 43.

  As the Second Circuit acknowledged, the case
before it was an easy one for disposition in
light of these factors, and the court had little
difficulty in determining that no violation of
the right to a public trial had occurred. The
court acknowledged that some minimal exclusions
had taken place, but noted that the closure of
the courtroom was "1) extremely short, 2)
followed by a helpful summation, and 3) entirely
inadvertent." Id. at 44. Our case involves a
closer situation. The exclusion was permanent, at
least as to the one individual involved, and it
was intentional on the part of the trial judge.
On the other hand, the fact that the exclusion
applied only to one person, not a relative or
friend/7 of the defendant’s, is not without
significance in assessing the values protected by
the right to a public trial.

  When we turn to those values articulated in
Peterson, we must conclude that we do not believe
that they are implicated in any substantial way
by the exclusion of Mane. There is no reason to
believe that Ms. Braun’s trial was any less fair,
or that the court officers or witnesses took
their roles any less seriously, because of the
exclusion of this one spectator. Indeed, the
exclusion was implemented, albeit mistakenly from
what appears in this record, by the trial court
to avoid any prejudice to the defendant.
Moreover, although the record gives no
justification for such action on the part of the
trial judge, it is difficult to see any basis for
attributing any significant detriment to the
integrity of the trial proceedings to it. Mane’s
presence or absence from the trial does not
appear to have had any effect on encouraging
witnesses to come forward or on discouraging
perjury. His sole connection with this case was
that he had been a member of the jury venire and
had driven the defense counsel on one occasion in
his taxi cab.

  In this six-week trial, this exclusion of a sole
individual without any significant connection to
the case or to the parties and on the apparently
mistaken belief that such an exclusion would
enhance, not detract, from the integrity of the
proceedings, does not implicate the policy
concerns that inform the Sixth Amendment’s right
to an open trial./8

  We caution that the exclusion of any spectator
runs the risk of violating the Sixth Amendment
and, accordingly, of requiring a new trial.
However, on the narrow facts presented here, we
are convinced that any effect on Ms. Braun’s
trial did not rise to the level of a Sixth
Amendment violation./9

2.

  The district court decided that the prosecutor
committed misconduct by failing to inform the
jury of the terms of the State’s plea agreement
with Seymour, the cooperating witness. As a
consequence, the district court continued, the
prosecutor misled the jury with respect to the
circumstances under which Seymour was testifying.
The prosecutor did not tell the jury that Seymour
had been informed that the prosecutor would,
after hearing Seymour’s testimony, reevaluate its
sentencing recommendation for Seymour. The terms
of Seymour’s plea agreement properly could have
been used for impeachment purposes./10 Because
the terms of the plea agreement were favorable to
the defense in the sense that they could have
been used for impeachment, the prosecutor had a
duty to disclose those terms to Ms. Braun. See
Strickler v. Greene, 527 U.S. 263, 280 (1999)
(stating that the Government’s duty to disclose
favorable evidence "encompasses impeachment
evidence as well as exculpatory evidence");
Giglio, 405 U.S. at 153-54. The prosecutor should
have disclosed to the defense that Seymour knew
the State would be evaluating his testimony and
thereafter recommending a sentence based, in
part, on how effectively he testified against Ms.
Braun. Moreover, in addressing the jury and in
offering Seymour as its witness, the prosecution,
by not disclosing the agreed-upon reevaluation,
created a misimpression of the terms of plea
agreement.

   Nonetheless, like the district court, we cannot
say that, on this record, the evidence was
material. In cases where the prosecutor withholds
exculpatory evidence, such as a plea agreement,
the Supreme Court of the United States has
instructed that "[s]uch evidence is material ’if
there is a reasonable probability that, had the
evidence been disclosed to the defense, the
result of the proceeding would have been different.’"
Strickler, 527 U.S. at 280 (quoting United States
v. Bagley, 473 U.S. 667, 682 (1985)); see also
Schaff, 190 F.3d at 527 n.13 (quoting Strickler).
However, when the prosecutor knowingly relies on
false testimony, the conviction must be set aside
"if there is any reasonable likelihood that the
false testimony could have affected the judgment
of the jury." United States v. Agurs, 427 U.S.
97, 103 (1976); see also Schaff, 190 F.3d at 530
(quoting Agurs). The Agurs standard is different
from that in Bagley and sets a lower threshold
for determining materiality./11

  Here, under either standard, we do not think
that the Government’s failure to take the proper
action can reasonably be viewed as having
affected the jury. Therefore, under either
standard for materiality, the error was not
fatal. First, it is apparent that the information
withheld by the prosecutor was heard by the jury.
Although the prosecutor failed to inform the jury
of Seymour’s plea agreement, Seymour himself
testified about the nature of the agreement. As
the district court wrote:

The prosecutor’s lack of candor was mitigated by
the fact that Seymour, during his testimony, made
two statements to the jury suggesting that the
incarceration recommendation was not cast in
stone. On direct examination he testified that
the "District Attorney’s office said that they
would take into consideration everything that I
have done since the murder to the time of
sentencing and make whatever recommendation they
feel appropriate at that sentencing." (Tr. at
1432.) And on cross-examination he again
testified that at the sentencing the district
attorney was free to make "whatever
recommendation he felt was proper." (Tr. at
1632.)

R.34 at 53. Thus, the jury was aware that Seymour
had a specific incentive to testify favorably in
the hope of further reducing his sentence.
Further, as the district court found, cross-
examination of Seymour drew out "other evidence
regarding Seymour’s self-interest in testifying
against [Ms. Braun]." Id. at 55. Seymour was
cross-examined for approximately a week, and the
jury heard extensive evidence demonstrating his
lack of credibility.

  In short, we do not believe that the
prosecution’s conduct had a substantial and
injurious effect or influence in determining the
jury’s verdict. See Brecht v. Abrahamson, 507
U.S. 619, 637 (1993).

Conclusion

  For the foregoing reasons, the judgment of the
district court is reversed.

REVERSED



/1 The text of sec. 974.02 provides:

  (1) A motion for postconviction relief other
than under s. 974.06 by the defendant in a
criminal case shall be made in the time and
manner provided in ss. 809.30 and 809.40. An
appeal by the defendant in a criminal case from a
judgment of conviction or from an order denying a
postconviction motion or from both shall be taken
in the time and manner provided in ss. 808.04(3),
809.30 and 809.40. An appeal of an order or
judgment on habeas corpus remanding to custody a
prisoner committed for trial under s. 970.03
shall be taken under ss. 808.03(2) and 809.50,
with notice to the attorney general and the
district attorney and opportunity for them to be
heard.

  (2) An appellant is not required to file a
postconviction motion in the trial court prior to
an appeal if the grounds are sufficiency of the
evidence or issues previously raised.
Wis. Stat. Ann. sec. 974.02.

/2 The text of sec. 974.06 provides:

  (1) After the time for appeal or postconviction
remedy provided in s. 974.02 has expired, a
prisoner in custody under sentence of a court or
a person convicted and placed with a volunteers
in probation program under s. 973.11 claiming the
right to be released upon the ground that the
sentence was imposed in violation of the U.S.
constitution or the constitution or laws of this
state, that the court was without jurisdiction to
impose such sentence, or that the sentence was in
excess of the maximum authorized by law or is
otherwise subject to collateral attack, may move
the court which imposed the sentence to vacate,
set aside or correct the sentence.

  (2) A motion for such relief is a part of the
original criminal action, is not a separate
proceeding and may be made at any time. The
supreme court may prescribe the form of the
motion.

  (3) Unless the motion and the files and records
of the action conclusively show that the person
is entitled to no relief, the court shall:

  (a) Cause a copy of the notice to be served
upon the district attorney who shall file a
written response within the time prescribed by
the court.

  (b) If it appears that counsel is necessary and
if the defendant claims or appears to be
indigent, refer the person to the state public
defender for an indigency determination and
appointment of counsel under ch. 977.

  (c)   Grant a prompt hearing.

  (d) Determine the issues and make findings of
fact and conclusions of law. If the court finds
that the judgment was rendered without
jurisdiction, or that the sentence imposed was
not authorized by law or is otherwise open to
collateral attack, or that there has been such a
denial or infringement of the constitutional
rights of the person as to render the judgment
vulnerable to collateral attack, the court shall
vacate and set the judgment aside and shall
discharge the person or resentence him or her or
grant a new trial or correct the sentence as may
appear appropriate.

  (4) All grounds for relief available to a
person under this section must be raised in his
or her original, supplemental or amended motion.
Any ground finally adjudicated or not so raised,
or knowingly, voluntarily and intelligently
waived in the proceeding that resulted in the
conviction or sentence or in any other proceeding
the person has taken to secure relief may not be
the basis for a subsequent motion, unless the
court finds a ground for relief asserted which
for sufficient reason was not asserted or was
inadequately raised in the original, supplemental
or amended motion.

  (5) A court may entertain and determine such
motion without requiring the production of the
prisoner at the hearing. The motion may be heard
under s. 807.13.

  (6) Proceedings under this section shall be
considered civil in nature, and the burden of
proof shall be upon the person.

  (7) An appeal may be taken from the order
entered on the motion as from a final judgment.

  (8) A petition for a writ of habeas corpus or
an action seeking that remedy in behalf of a
person who is authorized to apply for relief by
motion under this section shall not be
entertained if it appears that the applicant has
failed to apply for relief, by motion, to the
court which sentenced the person, or that the
court has denied the person relief, unless it
also appears that the remedy by motion is
inadequate or ineffective to test the legality of
his or her detention.

Wis. Stat. Ann. sec. 974.06.

/3 Prior to Loop, in Peterson v. State, 195 N.W.2d
837 (Wis. 1972), the Supreme Court of Wisconsin
had held that exhaustion normally would be
required before a sec. 974.06 motion could be
brought:

The postconviction motion under sec. 974.06,
Stats., is not a substitute for a motion for a
new trial. A sec. 974.06 motion can be made only
after the defendant has exhausted his direct
remedies which consist of a motion for a new
trial and appeal.

Id. at 845; see also State v. Smith, 198 N.W.2d
630, 631-32 (Wis. 1972) (quoting Peterson).
However, this exhaustion requirement did not
apply to constitutional claims. In Loop, the
Supreme Court of Wisconsin clarified that
Peterson did not preclude a defendant from
raising in a sec. 974.06 motion a constitutional
issue that could have been raised on direct
appeal.

/4 We note that the cases cited by the State for the
proposition that claims may not be relitigated
under sec. 974.06 are cases that postdate Ms.
Braun’s escape. Thus, their holdings could not
operate to put Ms. Braun in default because she
could not be aware of them at the time of her
escape. See Beamon v. State, 286 N.W.2d 592, 595
(Wis. 1980); see also State v. Brown, 291 N.W.2d
528, 531 (Wis. 1980) (quoting Beamon).

/5 The parties dispute whether the prosecutorial
misconduct claim raised here by Ms. Braun was
raised in her initial motion under sec. 974.02 in
the state trial court. The State argues that the
prosecutorial misconduct claim here is identical
to that earlier claim and, thus, that Ms. Braun
is improperly attempting to relitigate it. We
have shown that, even if it is the same claim,
the fact that it was identical to the earlier
claim would not preclude its inclusion in the
later sec. 974.06 motion.

/6 See Bell v. Jarvis, 198 F.3d 432, 437-42 (4th
Cir. 2000) (habeas relief necessary when
courtroom was closed to all but "family members
and friends of the prosecutrix" during
"empaneling of the jury, the court’s introductory
statements to the jury, the attorneys’ opening
statements, and the testimony of the
prosecutrix"); Brown v. Andrews, 180 F.3d 403,
404-09 (2d Cir. 1999) (granting habeas relief
because trial court closed courtroom for
testimony of police officer); Guzman v. Scully,
80 F.3d 772, 773-77 (2d Cir. 1996) (habeas relief
necessary when court excluded four spectators
from cross-examination of prosecution witness,
including two women either relatives or friends
of the defendant); Vidal v. Williams, 31 F.3d 67,
69 (2d Cir. 1993) (writ granted after court
excluded defendant’s parents from testimony of
police officer); Davis v. Reynolds, 890 F.2d
1105, 1108-11 (10th Cir. 1989) (granting habeas
relief when court had "cleared the courtroom"
during a preliminary hearing); Rovinsky v.
McKaskle, 722 F.2d 197, 198-202 (5th Cir. 1984)
(habeas appropriate when state trial court held
motion hearing in camera); United States ex rel.
Bennett v. Rundle, 419 F.2d 599, 603 (3d Cir.
1969) (exclusion of "all persons other than [the
defendant], the attorneys, the witnesses and
court officials"); Lewis v. Peyton, 352 F.2d 791,
791-92 (4th Cir. 1965) (writ granted when
testimony of prosecutrix was taken at her home
without entry of court order); United States v.
Kobli, 172 F.2d 919, 922-24 (3d Cir. 1949)
(reversing for new trial because of "the general
indiscriminate exclusion of the public from the
trial"); Davis v. United States, 247 F. 394, 394
(8th Cir. 1917) (courtroom "cleared of all
spectators except relatives of the defendants,
members of the bar, and newspaper reporters, and
a bailiff at the door was instructed to admit
none but those of the excepted classes"); Kelly
v. Meachum, 950 F. Supp. 461, 467-68 (D. Conn.
1996) (granting habeas relief when witness’
cross-examination was closed to public); Ip v.
Henderson, 710 F. Supp. 915, 916-20 (S.D.N.Y.)
(when "trial judge closed the courtroom during
the testimony of a government witness," habeas
relief necessary), aff’d, 888 F.2d 1376 (2d Cir.
1989); Santos v. Brown, 596 F. Supp. 214, 215-19
(D.R.I. 1984) (writ granted when, "[d]uring the
testimony of the complaining witness, the trial
judge excluded spectators from the courtroom over
the objection of the defense attorney and without
an evidentiary hearing"); Sirratt v. State, 398
S.W.2d 63, 63-67 (Ark. 1966) (reversing
conviction when courtroom was "cleared of all
spectators"); Thompson v. People, 399 P.2d 776
(Colo. 1965) (en banc) (requiring new trial when
district court excluded all but relatives,
officials, and attorneys); State v. Ortiz, 981
P.2d 1127, 1138-39 (Haw. 1999) (new trial
necessary when trial was closed "to all of
Ortiz’s family members"); State v. Lawrence, 167
N.W.2d 912, 913-19 (Iowa 1969) (reversing
conviction when the public was entirely excluded
during the reading of jury instructions);
Commonwealth v. Marshall, 253 N.E.2d 333, 335
(Mass. 1969) (court excluded "defendant’s
relatives and friend"); State v. Schmit, 139
N.W.2d 800, 807 (Minn. 1966) (court allowed only
"members of the bar and press" to watch trial);
State v. Klem, 438 N.W.2d 798, 799-803 (N.D.
1989) (remanding for new trial when, during one
witness’ testimony, court was cleared of "all
persons except court personnel, parties,
attorneys, jurors, and a ’representative of the
public media’"); People v. Kan, 574 N.E.2d 1042,
1043-45 (N.Y. 1991) (new trial necessary when
courtroom was closed "to all spectators,"
including defendant’s family, "during the
testimony of the cooperating accomplice and of
the two undercover police officers"); Addy v.
State, 849 S.W.2d 425, 429 (Tex. Ct. App. 1993)
(exclusion of "appellant’s friends"); State ex
rel. Stevens v. Circuit Court, 414 N.W.2d 832,
837 (Wis. 1987) (court "only allow[ed] news media
attendance").

/7 The Supreme Court has held that defendants have a
right to the presence of their friends in court.
See Oliver, 333 U.S. at 271-72 ("[W]ithout
exception all courts have held that an accused is
at the very least entitled to have his friends,
relatives and counsel present, no matter with
what offense he may be charged."). However, at
Ms. Braun’s trial, her counsel specifically
disavowed any relationship between the defense
and Mane:

THE COURT: . . . I do remember particularly the
State putting something on the record with
respect to Mr. Mane.

MR. LOWE [Assistant District Attorney]:   Yes, we
did.

THE COURT: And with respect to [Mane’s]
friendship with counsel for the defense and later
in meeting the people--the defendant and others.

MR. SHELLOW [counsel for Ms. Braun]: One moment,
friendship with counsel for the defense? He
apparently conveyed me in his taxicab on one
occasion.

THE COURT:   Well, he said he was a friend of
yours.

MR. SHELLOW:   I don’t think he was.

THE COURT: He said he knew you and anyone that
knows you is a friend of yours.

Tr. 48 at 1111-12.

/8 We also note the analysis of the Court of Appeals
for the Fifth Circuit, in a case where the trial
court excluded some members of the general
public:

In this case, some members of the public were
admitted; the courtroom was at least three-
fourths full; the transcript of the trial became
public record. Particularly important is the fact
that the news media were admitted. The published
reports of the trial were lengthy and complete.
The defendant’s relatives and clergymen were
present to provide moral support and comfort to
the accused. In sum, we find none of the secrecy
of the proceedings which are condemned by the
Sixth Amendment and In re Oliver, 333 U.S. 257
(1948) . . . . We conclude that the denial of
one’s right to a public trial is not at issue
where "[t]here was no in camera or secret trial.
[The trial] was held in a public courtroom with
attorneys, court reporters, court attendants and
at least some outsiders present." . . .
"Certainly under modern conditions, when friends
of the accused, the representatives of the press,
and those necessary to the proper conduct of the
trial are present, the defendant receives every
safeguard insured by a trial open to the general
public."

Aaron v. Capps, 507 F.2d 685, 687-88 (5th Cir.
1975) (citations omitted).

/9 Because we hold that there was no violation of
Ms. Braun’s right to a public trial, we need not
determine whether, consistent with Teague v.
Lane, 489 U.S. 288 (1989), the "no harmless
error" rule of Waller may be applied
retroactively in a federal habeas proceeding.

/10 See, e.g., Giglio v. United States, 405 U.S. 150,
155 (1972) (holding that key witness’ credibility
was "an important issue in the case, and evidence
of any understanding or agreement as to a future
prosecution would be relevant to his credibility
and the jury was entitled to know of it"); United
States v. Scroggins, 939 F.2d 416, 421 (7th Cir.
1991) (describing the terms of a prosecution
witness’ plea agreement as "obvious impeachment
material").

/11 Other circuits have also explained the difference
between the Bagley standard and the Agurs
standard. See United States v. Gambino, 59 F.3d
353, 364-65 (2d Cir. 1995) (finding that although
a Brady violation occurred, the prosecutor did
not rely on perjury, and thus "the lower standard
of materiality is not triggered"); Gilday v.
Callahan, 59 F.3d 257, 268 (1st Cir. 1995)
(explaining that "in the non-perjury setting, all
that is required or appropriate is the one-step
Bagley inquiry into reasonable probability," but
that "a prosecutor’s knowing use of false
testimony presents a different analytical
situation"); United States v. Duke, 50 F.3d 571,
577 (8th Cir. 1995) (describing the difference in
standards); United States v. Alzate, 47 F.3d
1103, 1109-10 (11th Cir. 1995) (noting the Bagley
standard and explaining that "[a] different and
more defense-friendly standard of materiality
applies where the prosecutor knowingly used
perjured testimony"); Fitzpatrick v. Whitley, 992
F.2d 491, 497 (5th Cir. 1993) (observing that
"different standards of materiality apply to
Brady claims and claims that the prosecution has
knowingly used perjured testimony or false
evidence" and describing the standard for the
latter as "considerably less onerous"); United
States v. O’Dell, 805 F.2d 637, 641 (6th Cir.
1986) (acknowledging the difference in the
standards).
