Charles E. McDowell v. Arthur Calderon, Warden of the California State Prison at San Quentin

standard, 52(a) correctly holding as a Rule restate- Congress passed 391,6 government § was enacted bears the burden to show which of U.S.C. ment mere concerned with the “prevent matters harmlessness in a court’s error of admit- the formalities of trials and with etiquette ting prior under The felonies Old Chief.7 procedure touching from contrary minutiae of majority has cited cases to Her- nandez, a Bruno v. United merits of verdict.” any. and I been unable find L.Ed. event, any guided by court our must be (1939). Supreme Court distin- Court, the decisions of the which a free guishes right defendant’s clearly beneficiary dictate that of the being “[of] mere errors as technical error, government, trial court’s bears importance” than the very order different to show that the error was harmless. burden right privilege “to insist on defendant’s government has failed to meet its bur- id., him,” Congress given such as which reason, den, Harris’s conviction overly prejudicial right free of should stand. Rule of Evidence Federal evidence under attempts errant majority to defend its application of by distinguishing the standard present rule ease in the

the harmless-error claimed error is

from those in which the Sullivan v. nature. See

constitutional

Louisiana, (1993) (con- 124 L.Ed.2d McDOWELL, Charles E. Petitioner- government stitutional error is harmless Appellant, beyond doubt that the can show a reasonable challenged did not contribute to error Thalacker,

verdict); 101 F.3d Seiler CALDERON, of the Arthur Warden Cal- (8th Cir.1996) (“The heavy state ahas Quentin, Prison at ifornia State San proving er- [a constitutional] burden Respondent-Appellee. doubt.”) beyond a reasonable ror is harmless No. 96-99000. omitted). (citation the harm- er- for nonconstitutional less-error standard Appeals, Court of ones, that for constitutional rors differs from Ninth Circuit. is that claim of constitu- but the difference Argued En Banc and Submitted automatically harmless- tional error warrants Aug. review, party complaining error where a error to be must show a nonconstitutional 24, 1997. Decided Nov. merely than technical to receive such more case, however, party In either review.

receiving the error carries the benefit showing the error

burden

affect verdict. Hernandez,

In United States Cir.1997), the Ninth Circuit majority part: the Ninth Circuit’s provided, pertinent 7. The dismisses 6. Section 391 being holding “without cited Hernandez certiorari, hearing appeal, writ On the likely authority.” 3. The rea- Ante note error, trial, case, or motion a new sister of citations our son for the absence criminal, give judgment or shall civil principle that the well-established circuit entire be- after an examination of the record beneficiary bur- error bears the of a trial court's court, regard er- to technical fore without The line den to show the error was harmless. rors, defects, exceptions not affect neither precedents do alluded contrary rule Hernan- rights parties. long, nor to the substantial § 28 U.S.C. dez. Asaro, Rosen, Asaro, Andrea G. &Bien Francisco, California, San petitioner-ap- pellant. Katz, General, Deputy Attorney

Robert F. California, Angeles, respondent-ap- Los pellee. BROWNING, been HUG, agree that the members had ade- Judge,

Before: Chief PREGERSON, on the relevant law and FLETCHER, quately instructed BRUNETTI, KOZINSKI, them, REINHARDT, they had written instructions with TROTT, THOMPSON, note KLEINFELD and sent a to the trial THOMAS, Judges. stated: We, action, the in the above entitled TROTT, Judge: request following: McDowell, 20, 1982, E. May Charles On Direction. We have an 11 to 1 vote this Jr., Following Rodriguez. killed Paula juror empathically one [sic] death. The homicide, him of vari- convicted grisly feels her circumstances are crimes, including committed with murder ous equal to aggravating circumstances. burglary of and special circumstances do not all to death. After rape, and sentenced him juror[’]s mitigating the one circum- court, in state exhausting his claims for relief being testimony stances as all either or corpus of habeas petition filed a a writ he evidence that should be considered. court, which was denied. in federal district following which Please circum- advise panel appealed, three-judge He and divided mitigating cir- stances can be considered affirmed the district court. of this court cumstances. recite facts opinions, fully panel’s psychiat- 1. Inadequate insufficient case, procedural background this and the ric help. (9th Cir.1997), reported at 107 are F.3d superseded part F.3d amended and relationship 2. with fa- Love/hate (9th Cir.1997). ther/mother. judges, matter By a of our active vote Daily physical 3. extreme mental and en We now vacate has been reheard banc. father, daily abuse also witness to panel’s opinion designated as part of the siblings. abuse mother and Introduction,” Supplemental id. at “C. Religious 4. extremes confused defen- parts affirming leaving intact those McDo- dant. deciding other issues. well’s convictions (in- Confusing 5. sexual mores home remaining have issues We decided cest), condoning or with mother aware misunderstanding alleged of incest/abuse. regarding whether could consider certain favorite 6. Accused of death of sister. phase mitigating penalty evidence amounted (1) to fatal constitutional error. believe family. 7. of divorce from Stress aspect of its a critical misunderstood Rejection during of mother’s love (2) task, misunderstanding had a years. teen injurious influence substantial and effect and you. Thank death, effect which in all on its verdict of added). reasonable likelihood survived (Emphasis Thus, attempt to cure court’s ineffective it. presence hearing In a outside the vacate McDowell’s death and we jury, the state trial said: the district court with instructions remand to light say anything I I feel cannot trial in grant the writ to order new way they indicates which sentence which penalty phase of this case. state court on say I voting, anything are be particular time will coercive. I alleged error we examine occurred interpret They asking me the evi- during day are the third deliberations dence; something cannot do. penalty phase.1 Although parties both opinion panel. Judge Thompson, in his for the With we borrow issue thanks to heavily presentation his excellent position Eighth against Counsel for McDowell took the stand Amendment scruti answered; ny, “suitably question that “the be must discretion circumstances, so the cir- directed and limited as to minimize —or named, arbitrary wholly capricious are circum- risk of ac cumstances 420, 427, Godfrey Georgia, tion.” stances.” responded The state trial court Georgia, (quoting Gregg v. jury’s question: me, essence, asking You’re to decide the (1976)) Stewart, (opinion of Powell and Ste you. ease for You been instructed as JJ.). vens, you to the law and I hate to throw out like if a This means that State wishes to autho- this. capital punishment rize it has a constitu- you But if go back and read the instruc- responsibility apply tional its tailor and tions, you particular in have one instruc- arbitrary in that law a manner avoids the mitigating tion in aggrava- which the and capricious penal- infliction of the death ting factors are listed. ty. Part responsibility of a State’s in this instruction, you Then have another regard is to the crimes for define concluding instruction which reads fol- as may way death in be the sentence a that lows: obviates [sentencing] “standardless discre- mitigating may “One circumstance out- tion.” It channel the must sentencer’s dis- weigh aggravating several circumstances by objective cretion “clear and standards” aggravating may or one circumstance out- provide “specific that guid- detailed ” weigh mitigating several circumstances. rationally ance “make and that reviewa- give weight You shall each to which process imposing ble the a sentence you find it to be entitled.” death.” As made clear in a Gregg, Those are the two instructions that I think “system penalty death could have stan- back, really apply. you go I would ask they vague dards so would fail ade- instructions____ reread those quately to the sentencing channel decision patterns juries the result added). (Emphasis pattern arbitrary capricious sen- After a brief conference at the bench be- tencing found in like that unconstitutional counsel, tween court and the court asked the Georgia, Furman [v. S.Ct. foreman, your question “Does that answer 2726, 33 ] could occur.” answered, ‘Tes, for now?” The foreman Godfrey, 446 U.S. at 100 S.Ct. at 1764- sir.” (citations omitted) (empha- and footnotes jury Friday resumed deliberations on added). sis The Court reiterated this mes- and, break, afternoon after weekend re- Arizona, sage in Walton turned a verdict of death. (1990), L.Ed.2d 511 sentencer, saying, jury “When a is the final II is essential properly be juryA cannot fulfill its central regarding role structed all facets of the sentenc- justice system our criminal if it ing process.” does not follow unguided the law. It is not an missile Gregg’s requirement that a according free own to its muse to do as “suitably directed limited so as to mini pleases. accomplish constitutionally- To its wholly arbitrary mize the risk capri purpose, properly mandated must be surely cious action” does not end the moment instructed as to the relevant law and as to its jury, instructs but continues fact-finding process, function in the and it until a verdict is reached and As returned. assiduously must follow these instructions. verdict, work towards must stay has made it by Court abundant- charted for channel them state clear, ly end, in a going they may series of eases back law. ongoing To this need 1976, that guidance. for a determination death

III the evidence.” Id. at S.Ct. at 876 (emphasis original). reversing In us, we confront matter before death, judgment of the Court offered this jury mistake and confusion. of serious a case reasoning: jury’s request plain language eleven demonstrates guidance may pre- Just as the State not statute erroneously the law and confused about clude considering the sentencer from eight as consider believed factor, mitigating neither the sentenc- background mitigat as pects of McDowell’s law, er refuse to consider as a matter of ing evidence. relevant evidence. In this instance, as it was Eighth Amendment rules Given the disregard mitigat- instructed a Furman, mandated ing Eddings proffered evidence on his be- offspring, Gregg, and their half. of constitutional concern. disorientation rules, a must According to these consid (second Id. at put by a defendant er the evidence forward added). emphasis night day It follows culpable mitigation of his behavior. Such although appro determines the imperative. ais constitutional consideration priate weight given to be plurality the Court said Lockett v. As a evidence, jury “may weight it no Ohio, by excluding such evidence their consid (1978), years five before 115, 102 erations.” Id. at S.Ct. at 877. trial: McDowell’s jury’s The in mistake and confusion the procedure perfect deciding for There instant to the in its judge case communicated governmental authority in which cases squarely teaching note fit within the of Lock- impose be to death. But a should used jurors Eddings. Although ett and the had prevents in the sentencer all statute instructed, properly understanding been the capital giving independent miti- cases from Eddings-was of “as eleven them-shades aspects gating weight to of the defendant’s judge if the trial instructed to [them] had and record and to circumstances character disregard mitigating the evidence [McDo- proffered mitigation in cre- of the offense proffered repeat on his Id. well] behalf.” We penalty the the will ates risk that death jury’s part: the in note relevant imposed spite of factors which call an 11 to 1 vote for death. The penalty. the for a less severe When choice juror feels miti- empathically one her [sic] death, is between life and that risk is equal ag- are the gating circumstances unacceptable incompatible with the and ju- gravating The other 11 circumstances. Eighth commands of the and Fourteenth agree juror[’]s rors not all with the one do Amendments. mitigating being as either circumstances repeated A this Court testimony or evidence that should be con- Oklahoma, 455 message Eddings v. U.S. following Please sidered. advise (1982), five mitigat- circumstances can be considered murder months before the for which McDo ing circumstances. in Eddings issue well stands convicted. The added). (Emphasis factors listed constitutionality limiting the then was not Lockett, undeniably Lockett sentencing qualify the note under as but of a statute mitigating “in as evidence. See that he fol judge’s conclusion Carolina, 4-5, Skipper fact of v. South lowing the law ... consider the this 1670-71, 90 L.Ed.2d 1 background.” Id. at 106 S.Ct. man’s violent (internal omitted). (evidence mitigating “might if it serve ‘as quotations at 102 S.Ct. ”) (quot than death’ interpreted basis for a sentence less The Court this statement Lockett, at ing 98 S.Ct. judge not evaluate mean that “the trial did 2963). appeal. concedes on mitigation wanting find it The State so the evidence in the fact; prosecutor counsel and a Both McDowell’s a matter of rather he found as as judge. prosecutor so advised the law he was unable even consider matter of said, “Well, First, forthrightly don’t delivery know it is as of the moment of the note, taking jurors by sides but eleven were outside of the [factors those listed by channel established state law jurors] as are factors to consider.” by Eighth Fourteenth Amendments. requested jurors McDowell’scounsel that the The risk created derailment be told that the matters to which the note impose penalty would “in death referred could be considered spite [might] of factors which ... call for Thus, everyone factors. the courtroom Lockett, penalty.” less severe 438 U.S. understood that defendant’s 98 S.Ct. at 2965. The Court evidence must jury; be considered “unacceptable identified this risk as one is, everyone, except ofthejurors- eleven incompatible with the commands of important the most participants stage at that Eighth and Fourteenth Amendments.” Id. of the proceedings. jury’s It up follows that deliberations question, then, is whether this funda- point help asked for mental error injuri- “substantial constitutionally flawed. ous effect or on the influence” Second, identify did not death, Abrahamson, Brecht v. 507 U.S. problem confounding exact jurors. the eleven 619, 637, 113 S.Ct. simply He original referred (1993) (quoting L.Ed.2d 353 Kotteakos v. defining mitigating circum- United stances. The had these instructions (1946)). L.Ed. To answer along. with them all Both agree sides question, specific guidance we look technically They instructions were flawless. Boyde California, were, however, same instructions that Boyde, some L.Ed.2d 316 unknown eleven reason correctly confronted claim that understand the first place. circumstances,

arguably Under these ambiguous we instruction “re- Justice Broussard Su- California impermissibly jury’s a stricted] consider- preme point Court: “There is no in reiterat- ation phase] of relevant [penalty evidence. ing language has enlighten which failed to claim, ...”2 To a evaluate such the Court McDowell, jury.” People the v. 46 Cal.3d yardstick reviewing fashioned a which we 530, Cal.Rptr. 250 763 1269 P.2d find appropriate “The proper inquiry here: J., (Broussard, dissenting part.) in such a case is whether there ais reason- able Third, likelihood that the has the presuming jurors even that the read challenged in way prevents instruction the returning that instructions after from their attempt guidance court, constitutionally consideration of to obtain relevant evi- from the 380, the gives dence.” Id. at record 110 S.Ct. at If us assurance whatsoever the they that then “yes,” answer is understood the law. All we necessarily the error satis- jurors know for sure the is that eleven who fies the Brecht injuri- test for substantial and initially did not understand that the law re- ous Accordingly, error. the ultimate result quired them mitigat- to consider McDowell’s depends here on judge’s whether the trial ing eventually evidence they voted as had response to jury’s adequately the note cor- while under the influence of their er- initial jurors’ rected the eleven misunderstanding ror. dispelled and their confusion. We conclude facts, circumstances, on these in these Judge Thompson’s argues dissent light the controlling authority that the complicated “there is about the error injure did substantially and influence struction to which were referred.” jury’s the verdict. soWe conclude for correct, three Even if this characterization is is it main reasons. irrelevant. is that The fact not did 10, challenged 309, 2. The Cal.Rptr. instruction was an earlier ver- 878 n. 196 671 P.2d 813 (k)” (1983). Instructions, sion of the Jury "factor instruction used in McDo- See California Crimi- 8.85(k) ed.1988) well’s (5th trial. That earlier version was found nal lack- for a later refinement of ing instruction; guidance 2, in sufficient the Boyde, the 494 U.S. at 374 110 n. Easley, People California in v. 34 Cal.3d S.Ct. at 1194-95 n. circumstances, jury’s a verdict. The the towards it. these comprehend Under usually unexpected revelation stood presume-as we folly to would be for death created a need caution. Never- they got right in the end do-that theless, response to given question the their affirmative the law. The foreman’s followed away jurors’ adequately about not clear the parting inquiry did to the response place the difficulty right them on track. question their he had answered whether realize the manner which response perfunctory. little. The proves clarifying rest of task must be done is within with the without conversation It came court, discretion of the trial sound jurors and before Appeal approved study federal Courts of the instruction further opportunity (which brings federal cases referred. some State the court had to which attention), simply re- practice to our regard uncorrected confusion Jurors’ reading referring to the instruc- reached law lead verdicts ing However, already of those tions read. none Godfrey required by of the channel outside in their are on cases facts and circumstances This risk was Eighth Amendment. and the case. In par with instant United States pre The unremarkable Lockett. identified (9th Collom, Cir.1979), F.2d “[wjhen is for such confusion scription example, jury’s question not re- a trial explicit makes its difficulties matter late to a of constitutional concern away them with concrete judge should clear meaning merely note was “un- States, 326 accuracy.” v. United Bollenbach Consequently, we found no abuse of clear.” L.Ed. judge’s response, in the which trial discretion said, As the Seventh instructions and was to reread the relevant duty “a places on the Bollenbach questions invite further “should the confu- jury’s request suffi respond to the Collom, Therefore, persist.” Id. at 631. sion prob clarify jury’s specificity to cient case, easily penalty was not death Greer, F.2d Davis lem.” distinguishable from our case. Cir.1982). exists, duty among “ ..., reasons, akin to by jury McDowell’scase is a trial ‘[i]n because (9th Cir.1993) Warren, moderator, but is F.2d a mere we held that purpose for the of as wherein governor of determining and of suring its conduct responding inquiry [the [i]n ” Bollenbach, questions law.’ case] of that “it [was] circumstances Quercia (quoting v. Unit rely more for the court sufficient 698, States, 466, 469, 289 ed U.S. 53 prior charge.” in its general statements (1933)). Moreover, 1321 77 L.Ed. Nunez, 1564, v. 889 F.2d are in requirements when constitutional Cir.1989). (6th jury Referring the 1568 volved, duty is a of this execution would not original to the instruction back process law as insuring due matter impression at least apparent correct the by the Fourteenth Amendment. guaranteed intent “to hurt” rather some McGuire, Estelle v. Cf. convict might “to kill” be sufficient to than 475, (jury instruction 116 L.Ed.2d 385 degree of first murder. Warren Due Process Clause it affects violates supplemen- provided a should have right). identifiable constitutional up tal instruction sufficient clear jury brought to uncertainty fully wor- understand the coerce the Court’s attention.3 saying anything might ry about Bolden, (D.C.Cir. Gordon, 514 1308-09 v. 844 F.2d v. F.2d 3. See also United States 1975); (trial Cir.1988) (error rereading (9th rely statute and stan court 1401-02 jury where jury expressed confu- dard instruction was insufficient original where instruction Petersen, confusion); counts); 513 United States v. regarding conspiracy States showed United sion Cir.1975) Cir.1978) (trial (9th cursory Walker, (giving F.2d jury confu supplemental in face of response jury a con- instruction confusion about court’s States, insufficient); Powell United legal principle it trolling was insufficient because sion (9th Cir.1965) (responding confusion); F.2d States to eliminate that United failed There is no response one-size-fits-all Judge do of the sort. Thomp- While disorientation, and the sizes that fit son’s dissent is speculating comfortable confusion, facts and circumstances do not fit this out sorted their we are ease. many As the Court has not-espeeially said awhen life is at stake. times, penalty qualitatively “the of death is respectfully reject We also Judge Thomp- any different from other sentence. We are holding son’s notion that our “forces state satisfied that qualitative difference be- accepted, courts to deviate from correct tween penalties death and other calls for a problems instructions.” We find two with greater degree reliability when the death First, this assertion. entirely misses the Lockett, imposed.” sentence is 438 U.S. at defining aspect of this case: it was the (internal 604, 98 S.Ct. at 2964 quotations and who had deviated from the Ex- instructions. omitted). citations To echo here what the pecting judges jurors straight to set with Maryland, Court said in Mills respect imperative to a constitutional can 367, 383-84, hardly regarded-as dissenting our col- (1988), “[n]o one on this leagues immersing do-as them in a “sea was member of the that sen- Second, fraught peril.” with Judge Thomp- tenced say [Charles We cannot McDowell]. metaphor son’s dramatic overlooks and mis- any degree of confidence which inter- apprehends very nature of pretation [of the instructions McDowell’s] Jury only tions. judge-made instructions are jury adopted meeting [after with the trial attempts to recast the words of statutes and judge]---- possibility petitioner’s the elements of crimes into words and terms improperly conducted its task certainly comprehensible layperson. The texts great enough is to require resentencing.” of “standard” instructions are not debat- Moreover, Mills observed that “[i]n review- ed and by legislators, hammered out but sentences, ing death the Court has demanded lawyers ad hoc committees of judges. greater certainty even that the conclu- Jury instructions do not come down from sions proper grounds.” rested on Id. at up mountain or rise sea. Their Lockett, (citing precise wording, although extremely useful, 2965). 605, 98 S.Ct. at The Mills Court also any special not blessed with precedential quoted from Andres v. United binding authority. description does 92 L.Ed. denigrate value, their simply places (1948): them the niche where belong. That might reasonable men derive a mean- By way illustration, ing from given the instructions other than used in this case came Jury from “California proper meaning of [the statute] Criminal,” Instructions highly regarded probable. In death cases doubts such as work known as CALJIC. CALJIC is the presented those here should be resolved product of the long-standing Committee on favor of the accused. Jury Instructions, Criminal, Standard Id. at 108 S.Ct. at 1866. As Justice Superior Angeles, Court of Los California. O’Connor said in opinion her concurring are, As excellent and as useful Eddings, ], “Woodson North [v. Carolina only CALJIC’s instructions are recommenda- 280, 2978, 49 L.Ed.2d 944 tions carry and do not the force of law. See (1976) and Lockett require us to remove CALJIC, (West ed.1996) Introduction 6th legitimate finding basis for ambiguity con- (quoting Section of5 the California Judicial cerning the actually by factor considered [the Council’s Standard of Judicial Administra- sentencing body in imposing judgment a tion). fact, emphasizes CALJIC that “[a] Eddings, death].” 455 U.S. at 102 trial in considering instructions to the at 879. shall no less consideration to those respectfully reject dissenting our by col- attorneys submitted respective for the leagues’ suggestion regard that we parties than to those in contained the latest ignorant” as “too to understand the law. We edition of ... Id. Ml trial [CALJIC].” jury's inquiry by to a merely rereading facially may a inadequate). correct instruction be issue, prosecutors, attorneys defense in doubt” this critical judges, means “petitioner value of that both CALJIC must win.” O’Neal v. California understand McAninch, recommendations, their limitations. 994-95, 130 (1995). L.Ed.2d 947 Manual of

Our own Ninth Circuit Model Jury footing. stands on a similar Instructions “strong policy We are mindful of the begins It this caveat: with against years retrials after the first emphasized

“It should be where the error amounts to no claimed more Manual are models and are tions in this speculation.” Boyde, than at pattern instructions. not intended to be conclude, 1198. We without They carefully before must be reviewed reasonably likely speculating, that it is They in case. not a particular use a are application in their erred this research and substitute for the individual Therefore, critical we instruction. adhere to required particu- a drafting equally “strong policy in favor of accu- case, lar nor are intended to discour- appropriate rate determinations of the sen- age using from their own forms and judges capital in a tence case....” Id. Parentheti- juries.” instructing techniques cally, Boyde Court had to possible presume confusion from an ambigu- Instr., Jury 9th Cir. Man. of Model Introduc- Here, ous we know (West added). instruction. Id. 1996) (emphasis tion proceeding of the eleven on an instructing If the task of routine premise. Accordingly, erroneous we reverse parties with the views of attention to the district court on this discrete issue. We fraught navigating per- involves a “sea injurious conclude that the demonstrable ef- il,” navigation it is recommended and encour- fect and mistake influence of taint- by aged us and mandated California. It is ed its verdict. circuit, navigation judges this federal, successfully complete both state and

every day judges, of the week. To trial IV settling ju- answering instructions and requires us to conclusion address questions rors’ about them is common task- argument improp the State’s that McDowell easy, not treacherous In- but either. erly asks us the retroactive benefit deed, the California itself law, new rule constitutional contraven affirming observed in McDowell’s sentence Lane, Teague tion of “properly that the trial court could have ex- We re 103 L.Ed.2d plained jury that it was free to consid- Furman, Gregg, ject argument. any aspect background er of defendant’s Godfrey predate Rodriguez’s all Ms. death. offered a miti- character which defendant Eddings preceded crime five McDowell’s some, all, circumstance, gating and that if not months, preceded by over his trial two factors, reasonably of the could fall listed that we years. argument The State’s McDowell, People category.” within to a never before Bollenbach consti elevated Cal.Rptr. 763 P.2d Cal.3d target. level Bollenbach is not tutional is off view, only 1269. In our case; driving Eddings The core is. con this, “could” but after he have done arises not stitutional issue here appropriate steps to take response from the judge, but material preserve right to a McDowell’s deci- misunderstanding jurors. jury grounded sion Constitu- response inadequate well-intentioned but Lacking tion. such concrete instruction to it did not ame germane, only but insofar as jury, Boyde using guide, test as a injurious threatening liorate the condition we “there is a reasonable likelihood conclude deprive his constitutional the defendant of jury challenged that the the jury consider his right to the prevent[ed] way struction in a the con- evidence. constitutionally evi- sideration of relevant ground,” holding new at 1198. neither “breaks dence.” 494 U.S. least, departs precedent. bespeaks “grave nor Graham Col- At the record lins, 892, 897-98, for a less than 113 S.Ct. fers as basis (1993) (quoting Teague, death. 1070). represents It U.S. at question There is this instruction application of well law to the a routine settled accurately Boyde set forth the law. See facts of this case. Bollenbach itself did not California, 494 U.S. rule, merely establish a new reasserted the 1190, 1198-99, 108 L.Ed.2d 316 The long-standing axiom that the American directly responsive to instruction also is law-giver is the neutral criminal cases. jury’s question because the instruction clear- States, See Todd v. United 15 ly jurors they anything tells the can consider (1895); Quercia 39 L.Ed. 982 background mitigating in McDowell’s as evi- 289 U.S. at 53 S.Ct. at United dence. As Frankfurter said in Bol 698-99. Justice majority jury assumes the remained lenbach, “Discharge jury’s responsibili being after confused directed to. ty drawing appropriate conclusions from us, assumption requires tion. Such as testimony depend[s] discharge court, speculate federal the state responsibility jury jurors court either did not read the instruc- required guidance by a statement lucid referred, they they tion to which or if were legal relevant criteria.” 326 U.S. at they ignorant read it were too to understand S.Ct. at 405. only usurps it. This not the function of the Thus, death, judgment as we jury, denigrates process, state reverse the district court and remand the plainly wrong. it is matter to the district court with instructions presumed Jurors are to follow the instruc- grant the writ as to McDowell’s sentence Span, tions. See United States v. of death. (9th Cir.1996). There is REVERSED and REMANDED. complicated about the instruction to which they jurors quite It referred. tells the THOMPSON, Judge, dissenting, simply they only can consider not BRUNETTI, Judges with whom instruction, specifically matters in the listed KOZINSKI, join. and KLEINFELD “any aspect but other of the defendant’s question before us is: can we assume personal history character or that the defen- remained confused after the state dant offers as a basis for a sentence less than trial court directed them to an instruction death.” What could be clearer than that? which, terms, they no uncertain stated “any” either concludes doesn’t could consider the factors listed their “any,” majority simply mean or the erases question mitigating evidence.1 I remain part of the instruction from the record. assump- convinced that we cannot make this speculate It is no answer to that the admit- tion. tedly jury. correct instruction confused response In question, experience How often in human have we state trial court referred the to an in- proved true the admonition: all “When else struction which listed the factors the fails, hasn’t, read the instructions!” Who “shall” consider. One of these factors re- task, stymied by when finally some read or quired to consider: reread the instructions and then understood Any other circumstance which extenuates what ap- to do? This bit of common sense gravity though plies of the crime even it is here. We know the state trial crime, not a excuse for the read the instructions to the before aspect of the defendant’s character retired deliberate. We know the personal history that the defendant of- room. We don’t questionable 1. It is whether the were con- force to extenuate the defendant’s question easily grisly sexually assaulting stabbing fused at all. Their can be read as crimes of indicating disagreement Rodriguez. response, one about whether the to death Ms. listed, "rejection correctly matters such as of moth- told the he could not de- during teenage years,” er’s love were of sufficient cide this for them. reasons, approved we have whether, For sound however, the time the know, jury practice referring original to an question, with their to court jurors returned respon- when that instruction is to which instruction on the instruction they focused correctly in- jury’s question and know that sive to the them. We do referred the court applicable on the law. See structs the them to this instruc- referred after the court Collom, it, 614 F.2d go back and read told them tion and Cir.1979). (9th thereafter, This is what the state trial with a not they to court returned not err when ver- court did this case and did a unanimous but with question, further it did so. penalty. calling for the death dict facts, majority en- all of these

face of respectfully dissent. speculations order in a series of gages of death. KOZINSKI, set aside defendant’s Judge, dissenting. know, is, so far as I the first ease This More- wrong. majority’s conclusion The jurisprudence to hold that a Anglo-American over, courts to deviate state trial it forces gave he instruc judge erred because accepted, correct instructions. from percent correct. tion that is 100 Whatever courts to em- compels state forced deviation this rule —and I with the merits of fraught peril. unfamiliar seas upon bark Thompson that there is not much— Judge this. majority opinion illustrates The extraordinary departure from estab such an responding majority states that may not be on collateral lished law judge should jury’s question, the trial Lane, Teague v. review. See it was free to “the have instructed 1060, 103L.Ed.2d 334 back- any aspect of a defendant’s consider always has been that a trial court Our rule which defendant offered ground or character jury by inquiry to an from the “respond some, circumstance, and that aas properly rereading relevant instructions all, listed factors [in applicable law to the case.” United state the reasonably could fall within question], 827, 843 Cir. Papia, States added). This won’t (Emphasis category.” 1977). majority somehow concludes— do. princi ”—that based on “shades reliability capital sentencing re ples of majority’s suggested part of the The first new, supplemental course, more detailed instruction, quired precisely maj. op. at case. instruction See trial court referred the state tion to which “survey us to Teague But directs they consid- it told them could when a state landscape ... whether and determine char- “any aspect of the defendant’s er claim at considering the defendant’s history that the defendant personal acter or became final would time his conviction less than for a sentence offers as a basis existing precedent to compelled by have felt majority’s suggested The rest of the death.” the rule he seeks was instruction, however, problem conclude that illustrates the Bohlen, Caspari v. cor- the Constitution.” deviating applicable law. U.S. rectly on the instruct (citations (1994) quotation and internal instruction would majority’s suggested omitted).1 conviction be McDowell’s marks jury to wonder which “some” caused the McDowell v. final in 1989. See they came list could consider factors on their Califor nia, or could not consider and whether for cer- (denying petition wisely L.Ed.2d 441 The trial all of the factors. glimpse at the Instead, appeal). A on direct he tiorari an instruction. give such that never before legal landscape reveals jurors to the correct instruction referred must a new that a court held factor could consider that told them refer rather than supplemental instruction by the defendant. offered Teague. argues tions lo nor the 1. Neither McDowell excep- either of the two here falls within the rule 844 relevant, legally legally in- follow correct instructions —is correct by 1989; trumped presumption abiding a new already given. Not in not structions stupidity. today. may This fact alone not be

ever until different, dispositive: Every case is and ev- Eddings really proposi- Does stand for this judges patiently peruse ery requires case anywhere opin- tion? can’t find it that right the relevant case law and distill judge Eddings, ion. trial who was sentencer, existing precedent compels If answer. also the that he not ruled could youth spelled single in a the defendant’s troubled as a result —even if it’s not out consider 109, mitigating Eddings, factor. at 455 U.S. apply it. But the case—the state court must 102 at 873-74. The S.Ct. crystal state court need not consult a ball to reversed and held that the sentencer in a figure out what rabbit the federal courts are “any capital aspect case must consider of a going pull next out of a hat. defendant’s character or record and judge The trial here have set out on the circumstances of the offense that quest through library an stacks eternal proffers for a defendant as basis discovering grail without which the ma- 874, less than death.” Id. at S.Ct. at jority following heralds. The line of cases Ohio, 586, 604, quoting Lockett v. 98 States, 607, Bollenbach v. United S.Ct. 612, 402, 405, (1946), 90 L.Ed. 350 The Court noted misunder leads to unremarkable conclusion: When standing of the law was tantamount to a responds jury’s trial question, to a it legally incorrect “In in- instruction: give misleading, cannot an answer that is stance, judge was it as had nonresponsive legally or incorrect.2 This disregard mitigating structed a tells us about a case the court where Eddings proffered evidence on his behalf.” gives 114, an instruction that is correct The Eddings Id. at 102 at 877. is prohibiting majority Eddings mitigating must therefore about consideration of invoke v. evidence, juror Oklahoma, 104, curing confusion.3 869, 455 102 71 (1982), 1 which it does: “Bollenbach When McDowell’s returned a note case; driving Eddings Maj. is not is.” expressing confusion about fac- op. argument at 841. The seems to be tors, may position have been the same different, assump- because death is the usual judge A Eddings. reading fair read, suggests may tion —that will understand and of the note not have Bollenbach, tion, key passage light 326 U.S. at when viewed in first 405, Bolden, began by stating question, 66 S.Ct. at confusing!.]”); 514 F.2d at explicit obvious: "When a makes its difficul- (holding rereading 1308 instruction was judge away ties a trial should clear them nonresponsive problems by because "the raised accuracy.” holding, concrete Bollenbach's how- question one were not resolved the court’s ever, was not so abstract. The that it Court held Petersen, charge”); further 513 F.2d at 1135 was error to a new instruction that was (holding supplemental instruction was "er event, therefore, legally incorrect: "In roneous, Powell, misleading contradictory”); judge 'quite cursory’ had no business to he (holding question 347 F.2d at 157-58 that where in the circumstances in which the here possible meanings, supplemental has two in supplemental asked for But instruction. he was responsive meaning struction which is to one but 'cursorily’ simply not even accurate. He was error). misleading as to the other is The last Bollenbach, wrong.” 326 U.S. at relies, majority case on which the United States v. Warren, (9th 1993), 984 F.2d Cir. decided after McDowell’s conviction became fi Gordon, The instructions in United States v. Teagueanalysis. nal and cannot enter the (9th 1988), 844 F.2d Cir. Walker, (9th 1978), F.2d 213-14 Cir. 3. The Court's later treatment of the Bolden, United States v. 514 F.2d 1308-09 my colleagues case confirms that (D.C.Cir.1975), are over- Petersen, United States v. reaching. Teague purposes, For (9th Cir.1975) the Court has F.2d 1135-36 Powell explained, Eddings simple: the rule of A state United 347 F.2d Cir. 1965) may "impose! prohibition ] an absolute misleading nonrespon- were all either Gordon, against consideration of (holding sive. See certain evi- at 1401 Smith, supplemental Sawyer respond jurors’ dence instruction must sentencer.” Walker, ("The question); prob F.2d 111 L.Ed.2d simply supplemental lem is (applying Teague). that the first all that cause the trial mitigating evidence the considering the been do, the trial court him to the rule the proffered. Did defendant as the mistake the same announces is new and not be make effectively [the] “instruct Eddings? Did habeas. mitigating evidence disregard the

jury to proffered on his behalf?” defendant]

[the trial court assiduous- opposite. The

Just the by referring the Eddings

ly applied mitigating ev- instructions about

the relevant that these in- majority agrees

idence. technically flawless: The were

structions to consider directed

structions which extenuates “[a]ny other circumstance HOSPITAL, ANAHEIM MEMORIAL though it is not the crime even gravity Plaintiff-Appellant, for the crime excuse per- character or aspect of the defendant’s offers as a history that the defendant sonal SHALALA, Secretary, Donna E. than death.” Com- for a sentence less basis Defendant-Appellee. at Eddings, 455 at pare instructions abso- only Not were the 874. HOSPITAL, correct, precise ANAHEIM they incorporated the MEMORIAL

lutely Plaintiff-Appellant, Eddings. holding of all about whether Eddings said at juror can cure legally correct SHALALA, Secretary, E. My Donna mitigating evidence. about

confusion Defendant-Appellee. majority implicitly acknowl- colleagues in the rule they summon their new edge this when 96-55724, 96-55796. Nos. Teague Eddings.”4 But “shades of white, shades, pen- works black Appeals, United States Court umbras, As the Su- nuances or emanations. Ninth Circuit. Sawyer: “Even explained preme Court petitioner’s assertion we to 7, 1997. Argued and Submitted Oct. in Lockett and that our decisions 26, 1997. Decided Nov. analy- inform, govern, the or even control or claim, follow that it does not sis of his petitioner seeks.”

compel the rule Smith, 227, 236, 110

Sawyer v. (1990) (in- 111 L.Ed.2d omitted). Here, as quotation marks ternal “considering the Sawyer, state court his conviction claim at the time

defendant’s compelled by have felt

became final would that the rule precedent to conclude

existing the Constitution.”

he seeks Bohlen,

Caspari v. 127 L.Ed.2d omitted). added) (citation Be- (emphasis view, princi- sought] was dictated Eddings applied [the rule notes that reliability capital principles capital sentencing. sen- ple reliability But confirmed principles dictate tencing these and holds meaningless applied at this level would be test maj. op. 837- See the result McDowell seeks. Smith, Sawyer generality.” squarely reject- But the Teague inquiry framing approach ed this petitioner’s high of abstraction: “In such a level

Case Details

Case Name: Charles E. McDowell v. Arthur Calderon, Warden of the California State Prison at San Quentin

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Nov 24, 1997

Citation: 130 F.3d 833

Docket Number: 96-99000

Court Abbreviation: 9th Cir.