Fields v. Brown

,V. Conclusion Jurisdiction Federal B. important several Mayer has raised manufactured proving The bar for clarify require us to questions similarly high. jurisdiction

federal We have existing law of surveillance. v. Arch States case United the benchmark investigation and conclude that done so (2d Cir.1973), the court of er, the bounds established was within here where, a the indictment dismissed appeals hold we decline to cases. Because our phone call single made agent federal the defendant’s conduct here violated in order Jersey to New York New from rights, the district court’s constitutional court The jurisdiction. federal generate the indict- to dismiss denial of the motion “manufac had been jurisdiction found that isment precise by the Government tured AFFIRMED. ... offense transforming local purpose 681; see also Id. at crime.”

into federal Coates, 104, 106 v. States United g Cir.1991) (4th (dismissin indictment con interstate element where . pur the sole government trived jurisdiction). creating federal pose country, where Here, traveling to another FIELDS, Petitioner- Lamar Stevie easier, was boys would young access Appellant, inception to execu plan part of integral travel was Interstate tion. v. itself, not contrived the crime

part of BROWN,* Warden, of California Jill jurisdiction. federal simply guarantee Quentin, Prison San State

Respondent-Appellee. Relationship Improper C. Fields, Petitioner- Lamar Stevie awith relationship An agent’s Appellee, constitutes before arrest defendant v. degree implies if it some

misconduct Warden, Brown,* of California case law impropriety the Jill of coercion Quentin, States, Prison at San State v. United See Sherman prohibits. Respondent-Appellant. 2 L.Ed.2d (1958). an enticement of sex Use as 00-99005, 00-99006. Nos. See United States per se coercive. Appeals, Court of United States Cir.1987). F.2d 1462 Simpson, Ninth Circuit. Agent Ham- of endearment terms lan to be a common seemed er’s e-mails 13, 2006. Dec. Argued and Submitted agent and the community, guage this 10, 2007. Sept. Filed appealed a vacation simply offered in the There is evidence no the defendant. relationship exist any coercive

record that Mayer and Hamer. ed between * Quentin. R.App. See Fed. San State Prison at predecessor, her is substituted for Jill Brown 43(c)(2). Woodford, P. of California Warden S. Jeanne Olson, Kulik, Gottesman,

David S. Mou- Oaks, CA, Siegel, ton & Sherman for the petitioner-appellant/cross-appellee. Lockyer, General; Bill Attorney Robert Anderson, R. Attorney Chief Assistant Hamanaka, General; Pamela C. Senior As- General; Attorney sistant Kristofer Jor- stad, Deputy Attorney General; and Keith Borjon, H. Supervising Deputy Attorney General, CA, Angeles, respon- Los for the dent-appellee/cross-appellant. SCHROEDER, Before: MARY M. Judge, Chief and STEPHEN REINHARDT, KOZINSKI, ALEX O’SCANNLAIN, DIARMUID F. RYMER, PAMELA R. ANN SIDNEY THOMAS, SILVERMAN, BARRY G. M. McKEOWN, MARGARET KIM WARDLAW, McLANE RONALD M. GOULD, BERZON, MARSHA S. TALLMAN, RICHARD C. RICHARD R. CLIFTON, CONSUELO M. CALLAHAN, BEA, and CARLOS T. Judges. Circuit RYMER; Opinion by Judge Partial Concurrence by Judge and Partial Dissent GOULD; by Judge Dissent BERZON. RYMER, Judge, Circuit with whom Judge Judges Chief SCHROEDER and KOZINSKI, O’SCANNLAIN, SILVERMAN, TALLMAN, CLIFTON, CALLAHAN, join, BEA and with McKEOWN, Judges WARDLAW, whom join GOULD Parts I—III. Fields, Stevie Lamar a California state prisoner, was convicted 1979 for the Cobbs, with a bar-bell. Fourteen Rosemary a Allen to death robbery and murder three-week, later, University he went on a “one- days librarian at student Fields, California; robbery People of Clar- crime wave.” man Southern 329, 336, gunpoint; Cal.Rptr. at the kid- Cal.3d ence Gessendaner (1983) (so robbery, forced robbery, rape, describing P.2d Fields’s naping deadly and assault with copulation, spree).1 oral Barnett; Gwendolyn the kid- on

weapon Fields’s sister September On copula- robbery and forced oral naping for Cobbs, Rosemary him with a 26- Gail saw Smith; kidnaping, and the Cynthia tion year-old woman who worked as a student copulation and forced oral robbery, rape, USC, at the Fields residence. librarian Coates, young student at also of Colleen Gail went into Fields’s bedroom the When Both He sentenced to death. USC. morning, Rosemary next was naked on the upheld were the convictions and sentence standing bed and Fields was the door. by the courts California. signed Fields handed Gail check side, court the federal the district On but, looking Cobbs for after her $185 error in Fields’s found no constitutional checkbook, Rosemary a he called “bitch” conviction, of habeas granted but writ another check for and told her to write claim that the con- corpus on Fields’s Rosemary that he Fields then told $222. pen- extrinsic evidence sidered “bump would her off’ “she run a cross-appeals from alty phase. Rehearing game by writing him” on check less banc, rulings these en we consider than the balance of her account. Later on a fair trial on account of Fields was denied 28th, Debbie, year-old girl a 16 who bias, which the district court held broth girlfriend was the former of Fields’s request, and evidentiary hearing at our er, went to Fields’s residence and saw aside whether his sentence should set Rosemary go and Fields into his bedroom. jury’s because of the consideration and asked Debbie if she Fields came out “pros” and foreperson’s notes about the girl punished wanted to see how he his that included capital punishment “cons” of “no,” said but Fields friends. Debbie references. Biblical pushed her to the door where she saw Rosemary to the bed. naked tied juror’s questioned conclude that the We into the bedroom with Then Fields went on the did not undermine its presence kill Rosemary that he would gun and told affirm of the writ impartiality, we denial so. money, him and that give her if she did not no prejudi- as to the conviction. As we see long trip going to take her on a penalty he was cial constitutional error going to come the district “and she wasn’t never phase, part we reverse this afternoon, Fields, deny effect is to back.” That Debbie saw judgment. court’s relief, Gail, thereby leaving Rosemary get Fields’s con- into a car Gail habeas place. her and drive godfather victions and sentence borrowed from Rosemary in the away. were Fields I driving toward the back seat. As Gail Freeway, gun heard a Santa Monica she prison Sep- from on paroled Fields was “Oh, Rosemary cry out: 13, 1978, shot and heard serving after a sentence tember keep driving, on Fields told Gail to manslaughter bludgeoning for Albert God.” (Fields II), summary opinion of facts from the in Fields 1. We take this Woodford Court, F.3d, (9th Cir.2002), opinion Supreme of the California Peo amend 1098-1100 Fields, 329, 336-40, ple v. 35 Cal.3d 197 Cal. byed 315 F.3d 1062. (1983), Rptr. prior 673 P.2d 680 and our Still, gun. raped Gwendolyn, four more shots. Fields Fields while and fired Rosemary Cynthia. was not dead and he need- raped Gwendolyn said Blackwell was, so he hit her awoke, ed to be sure she passed out but when she she saw object. Then drove a blunt Gail head with holding Blackwell a knife and heard Fields Fields where alley to an near the residence him, “Man, go up. tell and cut the bitch Rosemary’s body. Debbie saw Fields left just laying You can’t leave her there.” Rosemary; without return Fields Gail Cynthia up Fields told to clean the blood her, replied, and Fields about she asked Gwendolyn’s injury. from After Fields or- long trip and was going “She him go dered the women to The car that was coming never back.” rob, prostitutes Blackwell to find more had two bullet godfather returned to Gail’s did, they po- he released them. The it; verified the holes in a bank official $222 Gwendolyn’swig lice found and blouse and Gail; Rosemary to and Rose- check from card, Cynthia’s identification as well as license, and a torn mary’s purse, driver’s extensive blood stains on the mattress Rosemary to check from Gail for $185 Gwendolyn where had lain. residence. were found Fields’s Within a few hours Fields and Blackwell 2, 1978, Clarence Gessen- October On Coates, approached 18-year- Colleen Am out- parked his Pontiac Trans daner student, lot, parking old in a restaurant gun, Armed with a drug side a store. gunpoint ordered her at into the Trans man approached him with another Fields Am, and drove back to the Fields house. keys. car Fields also and demanded his bedroom, Fields ordered her into his took subsequent money. Victims asked $12, about and instructed Colleen to re- driving all Fields Gessendan- crimes saw move her clothes. He struck her for not Trans Am. er’s doing enough. so fast He directed her to Gwendolyn Barnett and These included him perform oral sex on and to submit to Smith, Cynthia prostitutes. both On the intercourse. Fields demanded more mon- a 17- morning of October Fields and ey; Colleen said she could withdraw $2000 Blackwell, friend, year-old William who account, savings from a so she tore out a gun, had a ordered the two women into page telephone Bank from the Crocker alley Am. Fields drove to an near Trans book, the local and went with Fields to Blackwell, residence, gun his took the However, they branch. returned to into the and directed Barnett and Smith withdrawing Fields without residence Fields upstairs house and to the bedroom. money thought because Fields there were to remove her clothes and ordered Barnett many people around. Fields told too Col- stockings. He in- hidden in her took $50 leen he would have to kill her she and told spected her for venereal disease him; many had too counts on Colleen wanted; her do whatever Blackwell begged escape by him not to. She tried to Meanwhile, raped her. Fields Blackwell throwing through herself backwards a room, compelled into another took Smith bedroom, in the but Fields closed window disrobe, her to and took about $100 pulled morning her back in. The next in the group her. The then assembled go Fields told Colleen he would let her if marijuana. Fields same room and smoked him, buy marijuana for which she would Smith, oral sex with told Barnett to have page torn from the tele- she did. The did, perform her to which she then ordered Am, book was found in the Trans this, phone sex, For anal which she refused. page missing and the book with that was Cynthia gun, break- Fields struck with of the found in Fields’s residence. Fields’s ing jaw her as well as the handle

763 review in the Califor for collateral prelimi- petition a blouse to Colleen’s mother wore Court, which denied on Supreme nia nary hearing. 14, 1994, in part on the merits and October robbery- of the convicted Fields un procedural ground of part in on the circum- Cobbs, special with the of murder filed a second amended timeliness. He deliberate, willful, premedi- and stance of in court on 'petition habeas district March of a during the commission murder tated 31, 1995, raising a number of claims which Gessendaner; robbery; robbery of procedurally district court held were cop- oral robbery and forced for kidnaping reversed, Smith; rob- Fields v. Calderon kidnaping barred. We of ulation (9th Barnett, (Fields Cir.1997), I), 757, as well as robbery of F.3d 759 bery and 125 and as- copulation, 1132, 1826, oral rape, denied, her forcible 523 cert. U.S. weapon; the kid- deadly sault (1998), parties and the 140 L.Ed.2d 962 copulation, oral robbery, forcible naping, summary judgment filed cross-motions separate phase, In a of rape Coates. upheld all The district court on claims. was sane. that Fields determined conviction, that the but ordered sen parties stipu- penalty phase, At the vacated and that Fields be tence be sen guilt all evidence heard in lated that possi in without the prison tenced to life carry sanity phases would forward penalty bility parole of unless new trial convicted 1976 had been Fields days. 60 were held within Al- of Albert voluntary manslaughter appealed. and the state both Fields punishment jury fixed len. The April was filed before petition As Fields’s pen- death under the 1977 California death 24, 1996, the effective date of the Antiter- reviewing independently alty After law. Penalty Death Act rorism and Effective record, Fields’s the trial court denied (AEDPA), apply AEDPA does not 1996 trial and for modification motion for new panel af appeal.2 merits of the The the verdict. except for guilt phase firmed on all claims affirmed California’Supreme Court (and the related claim a claim of bias on De and sentence conviction .Fields’s counsel), on assistance of ineffective 336, 29, 1988. 85 Cal.3d cember evidentiary hear for an which remanded 803, filed a 673 P.2d 680. Fields Cal.Rptr. (Fields II), 309 Fields v. ing. in the state corpus for habeas petition Woodford (9th Cir.), by 315 amended assis supreme claiming court ineffective Cir.2002). Jones, counsel, Following F.3d 1062 Carl tance of his appointment after court found Juror hearing, which was denied district evidentiary dire, an referee who conducted voir was not dishonest Hilliard Fields, hearing. In re Cal.3d biased, actually that he was not (1991). P.2d 862 Cal.Rptr. bias doctrine implied application dishonesty would be a new absence of federal habeas brought his first Fields Lane, by Teague rule barred May 1993. The corpus petition L.Ed.2d 334 to allow stayed proceedings court district (1989). the Hilliards It found also pursue unexhausted opportunity during trial about had no discussions court. Fields second state filed claims Appealability, and petitioner quest a Certificate of govern for does 2. AEDPA requisite showing date. may appeal after AEDPA’s made the effective found that he McDaniel, II, Fields Slack the issues raised. each of (2000). Accordingly, 146 L.Ed.2d 542 at 1101. appeal as we Fields’s notice of treated a.re- juror ability accept Hilliard’s to would given trial that affected and follow the law impartial. it, you by apply be fair and the court and to the best your ability, you to the facts as deter- appeal on issues. Fields renewed these be?,” mine them to Hilliard responded affirmed denial of the writ on panel The “Definitely.” questions Counsel asked no juror impartiality. Fields v. his claim of empaneled and Hilliard was without chal- (Fields III), 431 F.3d 1186 Woodford lenge. Cir.2005). Having sentencing reserved is- settled, sues until the conviction was present dispute The centers around a panel concluded that Fields had failed to Hilliard, Floyd declaration from Diane Hil- error and prejudicial show constitutional wife, liard’s in Fields obtained part judgment. reversed this of the so We It indicated that she was confronted rehearing granted en banc.3 Fields v. gunpoint by young African-American (9th Cir.2006). Brown, 465 F.3d 397 twenties, bound, early male in his blind- folded, area, beaten, driven to a secluded II raped, and robbed. The attacker Hil- told liard’s wife that he knew where she lived A you and would be back to “finish off.” He responding When on voir dire to one of apprehended. was never These events posted questions4 the trial court’s —wheth- were traumatic and had a radical effect on juror prospective er the had ever been a lives; they the Hilliards’ changed the locks witness, crime victim or arrested or on their house and Hilliard guard stood crime, charged with a or involved in crimi- gun with a weeks. Hilli- several Diane charges litigation Floyd nal or Hilliard — ard’s declaration also indicated that during stated his “wife was assaulted and began suspect she that Fields beaten, robbed, years ago two Christmas” might person be the who accosted her. in Angeles. judge Los observed She asked her if go husband she could charges of the in the some involved Fields courtroom, no; but he said Mrs. Hilli- case were robberies and asked whether thought ard he was afraid that if they going Hilliard “it to make it thought case, knew about her Fields get would off. fair, you juror difficult for to be a impartial declaration, Juror Hilliard’s 1995 which he pending the case now before this court reaffirmed in averred that he never your experience as result of the wife confused the events that “I occurred to his through?” replied: went Hilliard doubt strictly presented it. I wife with the facts think I’d base it on the the Fields case, charges present- urge and the evidence that’s he did not other to follow ed.” judge you any When the asked: “And course of action because of his wife’s lived; (5) support petition 3. Amicus briefs in prospective juror’s previ- Fields’s (6) Attorneys jury experience; have been filed the California prospec- ous whether the Criminal Justice and the California Council of tive had ever been a crime victim or witness, crime, supporting charged Churches. An amicus brief arrested or with a or Wallbuilders, petition (7) state’s charges litigation; filed Inc. involved in criminal or prospective juror any legal whether the had background, training, lawor enforcement posted questions 4. The were or written and in- (8) (1) experience; prospective juror prospective juror's whether the cluded: business or (2) any occupation; prospective juror's had friends or relatives who were law enforcement; (3) (9) spouse’s occupation; ages pro- or law and whether the business spective juror prospective juror's children and their knew of reason that he or school; occupations they impartial or where attended she could serve fair and (4) general prospective juror. area where the African-American, that he did his testified jurors he was one and experience, juror, giving fair Fields in delibera- best to be a Fields initially defended who declaration others were juror’s 1995 of the doubt when Another benefit tions. about his him; talked think that Hilliard often he did not against that stated about; a second wife, say case, not what but did the fact that no nature of his wife’s was aware that he juror declared made, that her been and attack- arrest had raped. had been Hilliard’s wife (like Fields) African- young was a er any impact on him. American male had to resolve reluctant panel was his wife’s confuse Fields with He did not record, this juror bias on claim of Fields’s not mention the crimes attacker and did evidentiary remanded and therefore jurors. When II, his wife to other against 1105-06. 309 F.3d at hearing. Fields hearing, Hilliard asked her husband about evidentiary Mrs. subsequent At the taken in testimony case, that he was not responded court received he district Hilliard, videotape Floyd by it. not tell liberty March 2003 to discuss Hilliard did Hilliard, the two other Diane charged, though about the crimes his wife to Hilli pertained 1993 declarations whose have told her what Fields’s might he race Hilliard court found The district ard. Mrs. Hilliard told was afterwards. When credited, testimony the court credible. might be the man thought him she Fields dire he voir explained Hilliard her, he doubted he told her who assaulted had been assault that his wife volunteered paranoid. was a little thought it and she beaten, in the intending people ed and it crossed his Hilliard testified that never that she had to understand courtroom as- person was the who mind that Fields having to sexually without his abused been also testified that his wife. He saulted He noted about the details. explicit that he assumption Hilliard’s 1993 Mrs. were not years ago people twenty-five incor- get off was was afraid Fields would talking about sexual open as free requests to come He refused Diane’s rect. did not they today. are He assaults want her to he did not to the had that his wife to hide the fact intend juror and was con- him as a compromise had anyone and if sexually assaulted been traumatized that she would be cerned have specifics, Hilliard would asked for affect their testimony, would which when mildly surprised told them. He home life. him, it would sought no one to strike knew that she Diane Hilliard testified judge him if the fine with have been hus- because her little Fields’s case about jury. him on the not want attorneys did it. She knew not discuss band did to do his However, prepared Hilliard was young African- case involved asked, If Hilli- if selected. duty and serve and shot man had abducted American who respect said with would also have ard if case someone; not know the she-did involving' sexual assault charges if Fields was rape charges or involved and that he impartial he could be fair go want Diane did his twenties. would on his wife that the attack doubted had man who if Fields was the court to see he influenced He said him. have her, refused but her husband accosted difficulty being have he would “doubt[ed]” her. She upset go. This did let her can you impartial only “because fair and (prepared declaration said her 1993 your what’s the back never be sure untrue when investigator) was Fields’s told the that he mind.” Hilliard stated her husband that she believed stated he would judge that truth he told the when case, her they if knew about afraid that on the evidence strictly decision base his her he Hilliard told get off. Fields would Hilliard, Fields is who like presented. during advised the court about her case trial. And impliedly Hilliard was biased as jury selection. experience his wife’s similar created the potential for his own substantial emotional Henry

Juror testified that Hilliard adversely affecting involvement impartiali- being wife talked about his first black ty. discuss each in We turn. fighter, nothing woman fire but else. Ju- that ror Warner testified he became aware guaran Sixth Amendment robbed, that wife had been Hilliard’s beat- tees a criminal defendant a fair trial. en, dire, raped during voir but other- “One touchstone of a impar fair trial is an talk it. wise Hilliard didn’t about tial trier of fact—‘a capable and will record, Considering including the entire ing to solely decide the case on the evi ” declarations, the 1993 and 1995 the district dence before it.’ McDonough, 464 juror court Hilliard found did not 554, 104 S.Ct. 845 (quoting Smith v. Phil intend to mislead the trial court when he 209, 217, lips, 455 U.S. stated that wife his was “assaulted and (1982)). L.Ed.2d 78 As Supreme beaten, robbed, years ago two Christmas.” recognized Court in McDonough, “[v]oir The court also found Hilliard and his dire protect examination serves to wife did not have discussions right by biases, exposing possible both subject the trial about its matter that af- unknown, known part on the poten ability fected Hilliard’s to be fair and im- jurors.” tial Id. at 104 S.Ct. 845. partial. McDonough personal injury was a ac- tion in which prospective juror a failed to B respond affirmatively question to a on voir juror puts Fields’s claim of bias three dire seeking to elicit information about theories on the table: so-called McDon previous injuries juror’s to members of the bias,5 ough-style which turns on the truth family immediate in disability resulted juror’s dire; of a responses fulness on voir prolonged pain. fact, In juror’s son bias, actual which from pre-set stems a leg had broken his as a explod- result of an disposition not to decide an issue impar tire, ing juror but evidently did not (or tially; bias, implied presumptive) injury believe this was relevant to the which in exceptional exist circum inquiry. After judgment McDonough, for where, example, prospective stances Greenwood sought a new trial on the basis juror relationship has to the crime itself bias. The Court observed: trial, or to someone involved or has To invalidate the result aof three-week repeatedly lied about a material fact get mistaken, trial juror’s because of a jury. short, on the posits Fields though response question, honest to a Hilliard’s failure to rape disclose his wife’s to insist on something perfec- closer and kidnaping, misgivings and to reveal his judicial system tion than our can be juror, serving about as a untruthful. expected give. represents A trial this, Actual bias can be inferred from to important gether private investment of with the fact that the and so- evidence at resources, cial ill triggered memories of the attack and it serves im- his wife and fact that portant finality Hilliard talked end of wipe the slate suspicions during her about her simply clean peremptory to recreate the dire, McDonough Equip., Power party Inc. v. Green- voir must demonstrate that the wood, honestly S.Ct failed to answer and that a (1984) (plurality) L.Ed.2d (holding response provided that to correct would have a basis get cause). juror’s responses a new trial challenge based on for a activity); gang in an area with lived counsel had process challenge (observing that which ob- F.3d at Dyer, information 151 973 item of lacked from a obtained that “an honest McDonough have jectively he should follows dire examination. ques- on voir a dire to voir mistaken answer yet vio- to a constitutional rarely amounts 555, Accordingly, tion 845. at 104 S.Ct. Id. in an- lation; intentionally trial dishonest a new even an that “to obtain held Court situation, fatal, first demon- party long a must as the falsehood a not so such swer honest- answer a failed to that impartiality”). strate a lack of bespeak not does dire, and voir question on ly a material volunteer details not fail to did Hilliard response that a correct show then further impartiality; he implicated that any reason for a basis provided valid have would them, But if asked. have furnished would 556, at cause.” Id. challenge for asked, in circum- these wasn’t he 845. McDonough’s admonition we heed stances of the After careful consideration of a trial. the result to invalidate not that record, found the district court entire Likewise, upon see no basis we dishonestly on respond did not Hilliard conviction invalidate to Fields’s which to mislead and did not intend voir dire have defined actual bias. We account of attack court, hide the facts trial or “ essence, as, in fact’— in ‘bias actual bias wife, word “assault” by using the on his that leads a state of mind existence of “kidnap” to describe “rape” and instead not that the will act person an inference to juror is dis Whether happened. what v. United States impartiality.” entire fact, v. Cal Dyer question is a honest Cir.1998) (en (9th (9th 1109, Gonzalez, 1112 214 Cir. deron, F.3d 151 F.3d 973 Torres, firmly 2000) convinced banc), are not 128 and we States v. (quoting United wrong. are findings Cir.1997) (internal (2d court’s that the district quota F.3d 1313, 1317 F.3d Payne, v. Riley See omitted)). Actual bias is typi marks tion (9th Cir.2003) court’s a district (noting that juror states prospective when a cally found er for clear findings are reviewed factual expresses or impartial, not be that he can ror). thought that he Hilliard testified party’s position a view adverse one using that “as understand everyone would he as to whether equivocally responds beating in context of sault” despite that impartial be fair could encompass a robbery of his wife would a ju of whether The determination view. that he To the extent assault. sexual fact, question actually is a ror is biased this, it assuming in have been mistaken review for at that we 151 F.3d Dyer, layperson honest mistake for was an discretion, abuse error” or “manifest Mitchell, F.3d Dennis v. See make. are satis Gonzalez, 1112. We 214 F.3d at Cir.2003) (6th juror’s (holding in manifest error was no that there fied not legal term did misunderstanding of finding Hilliard court’s the district dishonesty); McDonough, connote put aside actually biased. He (observing that 104 S.Ct. 845 and did not to his wife happened what En necessarily experts “jurors are not what he had events with those confuse uncertain as “may be usage” and glish truthfully repre He about Fields. decide relatively are meaning of terms which He did not impartial. he was sented judges”); by lawyers understood easily spec his wife bias. While lie to conceal F.3d Lamarque, 357 see also Sanders person might be that Fields ulated Cir.2004) (holding that a 943, 947-50 her, did not. Hilliard who accosted himself failing to dis juror was not dishonest couple had no discussions And the she years previously twenty-five close subject Eubanks, the trial about its matter because United States v. (9th Cir.1979); Dyer, 979;

Hilliard understood he was not at 151 F.3d at Gonzalez, liberty to so. do F.3d at 1112-14. argument Allsup,

This leaves Fields’s that Hilli two in a robbery bank nevertheless, was, employees were of a impliedly pre ard different branch of the bank that was sumptively panel biased. As the robbed. 566 recog appeal, On direct we remanding development of a held that their nized record, relationship subject to the of the trial factual this is the most serious of was too close for them impartial, to be there- challenges. similarity Fields’s The Di of fore the trial court failing erred experience ane Hilliard’s charges to the excuse the for cause. Id. at 71-72. against clearly implicates Fields our law implied Although bias. the Supreme conspiracy Eubanks was a heroin case. (or explicitly adopted reject Court has not presumed 591 F.2d at 516. We bias on ed) bias, the implied doctrine of both con appeal direct from denial of a motion for curring opinions in McDonough seem to juror new trial because the failed to dis- it, McDonough, embrace see 464 at close that two of pris- his children were in 556-57, (Blackmun, Stevens, 104 S.Ct. 845 on for heroin-related crimes. Id. at 517. O’Connor, JJ., and concurring);6 id. at juror form, qualification On a juror the had (Brennan Marshall, 104 S.Ct. 845 and indicated that he was married but had no JJ., concurring judgment),7 in the and our children, juror and the respond did not presumed court inferred or has bias on question by judge the on voir dire wheth- See, e.g., rare occasions. United States v. “you er or your members of immediate (9th Allsup, Cir.1977); 71-72 families ever personally [have] been inter- when, 6. Justice Blackmun’s may presumed concurrence for Justice that bias be for exam- agrees Stevens and Justice ple, O'Connor with the there "a juror is revelation ... that the Court that participants close relative of one of the in transaction, the trial or the criminal or that proper inquiry in this case is whether juror was a witness or somehow involved plaintiffs impartial had the benefit of an in the criminal transaction.” Id. at that, agree trier of fact. I also in most J., (O'Connor, concurring). cases, honesty dishonesty juror's or of a response best initial indicator of concurrence, 7. Justice Brennan’s in which juror impartial. whether the in fact was I joined, agreed Justice Marshall with the Court join opinion, therefore the Court’s but I less-than-complete during information separately write to state that I understand trial, require voir dire does not itself a new holding the Court’s not to foreclose the and would hold that "to be awarded a new party normal avenue of relief available to a trial, litigant required should be to demon- asserting who is that he did not have the juror incorrectly strate that the responded Thus, impartial jury. regard- benefit of an dire, that, question a material on voir juror's less whether a answer is honest or dishonest, under the facts circumstances surround- it remains within a trial court’s case, ing particular option, determining was biased in whether a biased, against moving litigant.” post-trial McDonough, hearing to order a at 557-58, (Brennan, 464 U.S. at opportunity which the movant S.Ct. 845 has the J., or, concurring judgment). in the exceptional actual bias He would demonstrate in circumstances, recognized also have that the facts are that bias such that actual implied (conclusively presumed bias or is to be inferred. as a matter 556-57, (Blackmun, law), accordingly, disagreed U.S. at 104 S.Ct. 845 with the J., concurring). Justice Blackmun cited to Court "that a new trial is not warranted concurring opinion prospective juror Justice O’Connor's provides whenever a Phillips, Smith v. question posed.” honest answer to the Id. at (1982), 558-59, suggested L.Ed.2d 78 where she 104 S.Ct. 845. prejudicial had no victim, or a criminal case of a defense in the ested himself. about defendant in a criminal information defense witness answered he 516. Had at Id. Id. case[J” have ex trial court would

truthfully, in a juror on voir dire Dyer, In In these circum at 517. him. Id. cused “no” to answered prosecution murder juror’s sons’ stances, concluded we her any she or about queries the infer heroin barred involvement any victim of had ever been relatives Id. impartially. served that he ence any crime, whether she type of F.2d 520 Borg, 895 Tinsley v. accused of had ever been relatives her contrast, who prisoner a state Cir.1990), in cases. than traffic other offense his rape contended was convicted juror’s truth was at 972. The he was denied petition § 2254 U.S.C. years killed six shot and had been brother juror was biased. one a fair trial jail. Id. earlier, and her husband voir juror stated Id. at 528. juror that the We concluded 972-73. work- social psychiatric a dire she gave rise to lied, her lies and that plainly vic- rape with to deal trained er who was im- conceal chose to that she an inference of the the nature tims, notwithstanding but juror a in to serve as facts order portant case, would Tinsley’s in charges involved sentence. Dyer’s judgment pass and She juror. Id. at 524. a fair be able be White, 232 982; see also Green Id. at counseling recall did not said that she also Cir.2000) (9th (presuming F.3d however, out victims; it turned any rape in a murder jury foreperson the when bias of a on behalf testified once she had felony convic- prior his own lied about found victim, she anxi- experience an rape and in jury questionnaire a written tion on hearing on Tins- Id. At a ety provoking. lies, inap- “pattern of the voir dire because trial, juror a for new ley’s motion behavior, to cover attempts juror propriate fair as had been that she testified un- ‘destructive thinking about introduced up his behavior had recollection no fact-finding process” counseling episode delib- into prior certainties’ 983)). that bias acknowledged We erations. Id. at Dyer, 151 F.3d (quoting presents case when the may be implied Eubanks, drug awas Gonzalez Like “ ‘potential relationship which prospective where conspiracy case involvement, ad- emotional substantial anyone close they or were asked ” is inher- affecting impartiality,’ versely illegal any experience had to them F.2d at Allsup, 566 ent, (quoting id. at 527 juror an- 1110. A 214 F.3d at drugs. it, in put 71), had Fourth Circuit or as the affirmatively her ex-husband swered “ the rela- where situations ‘those extreme cocaine, was one which and dealt had used juror and prospective tionship between years four divorce reasons their of the is such that litigation of the aspect some equiv- juror responded previously, but person average unlikely that the highly she times whether ocally when asked three his deliberations impartial in could remain ” aside experience personal put her could (quoting Id. circumstances.’ under 1110-11, Id. at impartially. and serve Miller, F.2d Person v. challenge on of a cause that denial We held Cir.1988)). However, concluded we theory implied bias express or either an a pre- warrant did not the circumstances juror’s re- given required reversal juror nor as neither sumption of bias questions the court’s sponses to or rape victim had been relative close and the experience her similarity between personal no connection rapist, there at 1114. alleged conduct. Id. defendant’s defendant juror and the between sum, implied we have bias in regarding the attack on Specifi- his wife. those extreme situations “where the rela cally, Fields contends same kind tionship prospective juror between a of emotional involvement exists this case aspect some litigation is such that it as in Dyer Eubanks and because Hilliard’s highly unlikely that the person average wife been had affected crimes similar to impartial could remain in his deliberations accused; ones of which he was circumstances,” under id. at 1112 that, in Allsup, Hilliard also had a 527) (internal (quoting Tinsley, 895 F.2d at reasonable fear of violence as a result of quotation omitted), marks or where re crimes similar to the of which ones Fields peated lies voir dire imply juror that the was accused. concealed material facts in order to secure disagrees state that the relationship a spot on particular jury, Dyer, is of the sort that we have previously at F.3d “essentially The standard is found so bias, extreme as presume objective one,” Gonzalez, which leads it also to invoke Teague under which a pre rule against application retroactive by a sumed though biased even him federal court of a new rule of constitutional self believes or states that he can be im law.8 We must decide whether this is so partial. Dyer, 982. Review is before reaching the merits of Fields’s novo, de implied bias is a mixed Bohlen, claim. Caspari v. question Gonzalez, fact. law and (1994) 127 L.Ed.2d 236 F.3d at 1112. (instructing that if a argues state that the Fields maintains that all the indicia for district court granted a petition habeas on implied present bias as are Hilliard and his of a basis new rule of constitutional wife went through personal a experience law Teague-barred, that is a court must that trial; is similar to pattern the fact at Teague first); address the issue Leavitt v. unlikely is person that a in Hilliard’s Arave, (9th 809, Cir.2004) 383 F.3d 816 circumstances —whose wife was victim curiam) (same). (per of a recent unsolved crime person In view, the state’s a reasonable inter- whom the defendant resembles and whom pretation precedent from when Fields’s suspects wife might be the one who conviction became final9 not attacked would allow a impartial; her—could be the inci- presumption dent of bias in involving Diane Hilliard absence of a and Hilliard’s finding juror subsequent dishonesty. conversations with The state during her the trial that all present potential submits but for one case in substan- the uni- tial emotional verse adversely implied-bias involvement af- existing cases as of fecting impartiality; his then Hilliard was involved dishonesty, McDonough, see not honest process voir dire 556, 464 845; at Eubanks, U.S. 104 S.Ct. Lane, 288, 310, Teague 8. 267, v. 489 U.S. 109 S.Ct. (1984). 83 L.Ed.2d 204 See Snook 1060, (1989) (holding, 103 334 Wood, L.Ed.2d 605, with v. Cir.1996) 612 exceptions, announcing a decision that a con- (explaining when conviction becomes final stitutional procedure rule of criminal that was Teague However, purposes). for Fields as- not by precedent existing dictated at the time sumes—and the dispute state does not —that the defendant’s may conviction became final 14, 1994, the relevant date is October when applied review). not be collateral on Supreme California Court denied his ex- petition haustion that juror raised the issue of date, 9, 9. Teaguepurposes, This for is October bias the first for time. is There no need for us 1984, the Supreme date the United States to decide which is correct because the result Court denied ap- certiorari on Fields's direct way. is the same either peal, 892, California, Fields v. 469 U.S. 105 but refused problem, considered 516, the one case F.2d at were im- employees government find that 71, at involved not, Allsup, 566 did automatically dis- thus pliedly biased by employ- related who were two where serving on qualified relationship which victim—a to the ment at 70 S.Ct. party. ais Id. government stan- long-accepted within squarely falls Moreover, ex- Justice O’Connor 519. disqualification. dards bias should view that implied pressed Hilliard’s bias counters that Fields or “ex- in “extreme” presumed be just than of more on implied account at Phillips, 455 U.S. cases. traordinary” his against crimes similarity of the (O’Connor, J., *,n. 102 S.Ct. 940 222-23 & matters example, extraneous For wife. at Tinsley, 895 F.2d concurring); see also had that Hilliard the conversations such same). gave of Examples she (quoting Teague- are not during his wife or “ex- an “extreme” count as might what has information extrinsic barred “a revelation traordinary” case were to a right constitutional long implicated employee of the an actual juror See, Remmer United e.g., trial. fair agency, prosecuting States, 74 S.Ct. U.S. participants one of the close relative (1954). argues He also L.Ed. 654 transaction, or or the criminal the trial responses on deficient bias based implied or somehow a witness that the firmly es- questions has been dire to voir transaction.” in the criminal involved came McDonough least at since tablished at Phillips, addition, January down McDonough, (O’Connor, J., concurring). opin- concurring points out that Fields course, party must demon- held that opinion and our McDonough, ions honestly to an- juror failed that a strate implied a standard embraced Allsup, material that is question dire a voir swer solely on dishon- depend that does bias result a trial could impartiality before 556-57, McDonough, 464 U.S. esty. See 556, 104 S.Ct. be invalidated. (Blackmun, Stevens S.Ct. 845 in- However, concurring opinions the 845. 558, JJ., at 104 O’Connor, concurring); id. the understand they did not dicated Marshall, JJ., (Brennan con- 845 S.Ct. in bias the implied to foreclose opinion 566 F.2d Allsup, judgment); in the curring dishonesty on voir dire. juror of absence though even implied bias (finding 71-72 at (Blackmun, 556-57, 845 104 S.Ct. Id. at of at a branch she worked juror disclosed JJ., O’Connor, concurring); Stevens, and robbed). that was bank (Brennan and 558-59, 104 S.Ct. 845 id. implied judgment). agree Marshall, JJ., concurring with Fields in the We 1984; sowe previously existed before have doctrine cases we light bias of these In But this question at 984-85. Dyer. 151 F.3d an unresolved in that it is held observed necessary predi- issue dishonesty more discrete is a answer the not whether does implied Dyer, bias. See finding juror whether by the state: cate to a raised unnec- (noting Fields’s it was when n. 12 existed at 979 as it bias doctrine F.3d re- issue because decide the essary final would have became conviction dire); see voir lied had juror trial the absence dishon- there a new in quired (“Beyond II, 309 F.3d at Fields voir dire. also esty during indicate, open it is cases these what hand, Supreme Court one the On dishonesty required is question juror impliedly never held that has found.”). may be bias before dishonesty. in the absence biased Allsup hand, in we 162, other decided States, On the Dennis v. United in the absence implied could be (1950), that bias court 94 L.Ed. juror dishonesty. prospective jurors bias.” Id. at 527-28. The prime safe- who worked for the victim bank had guard hon- is voir dire. “In situations, most estly disclosed their employment dire, and stat- voir ‘the method we have relied on they ed that try could fairly, case but since the beginning,’ should suffice to iden- we presumed nevertheless bias on account tify juror bias.” Id. at (quoting Patton they fact Yount, worked bank that had been robbed and would have a (1984)). 81 L.Ed.2d 847 This is be- apprehension “reasonable of violence” cause truthful disclosure of information from bank robbers. 566 F.2d at 71-72. during voir dire sets up a challenge for Although the (or nature of the relationship cause cases, less clear-cut a peremp- was different from Hilliard’s in that tory challenge) that can be exercised be- jurors in Allsup directly were interested in fore resources are devoted to trying victim, still it is difficult to conclude in case to verdict. Cause challenges lie for light of Allsup and Justice (or O’Connor’s con- implied presumed) bias as well as for currence in Phillips that presuming bias actual Gonzalez, bias. See 214 F.3d at despite an honest of a potential- disclosure 1111. Honesty is heart jury- ly disqualifying relationship would have process selection in an system; adversarial been a new rule of indeed, constitutional law “voir speak dire” means “to truth.” The point whole of the voir dire process is to elicit information from the The state argues also for the venire that may light bias, shed preju- narrower proposition precedent that no dice, interest in outcome, competence, the time dictated that an honest and the like so that counsel and the parties impliedly simply by biased virtue of his may exercise judgment their about whom wife’s victim agree status. we While to seat and whom to challenge. As the so, this is we do require the existence Supreme Court elaborated in McDonough: of a case for Teague purposes “involving One touchstone of a fair an im facts, circumstances, identical and legal is partial trier of fact-“a capable and Hood, sues.” Keating v. willing to decide the case solely on the (9th Cir.1999), n. 11 overruled on evidence before it.” Voir dire examina grounds other by Payton v. Woodford, 346 tion serves to protect that right by ex Cir.2003) (en 1217 n. 18 posing possible biases, both known and banc). unknown, on part of potential jurors. Teague aside, it is well accepted Demonstrated bias the responses to may presumed bias in “ex questions on voir may dire result in a treme” or “extraordinary” cases. We said juror being cause; excused for hints of in now, Tinsley, and reiterate that “[p]ru- bias not sufficient to warrant challenge dence dictates that courts answering this for cause parties assist in exercis question should hesitate before formulat ing their peremptory challenges. The ing categories of relationships which bar necessity of truthful by pro answers serving in certain of types spective jurors process if this is to serve trials.” 895 F.2d at 527. purpose its is obvious.

“Instead of formal categoriza 464 (citation U.S. at 104 S.Ct. 845 tion, the Supreme omitted) Court has emphasized (quoting Phillips, 455 at U.S. the existence of safeguards against 940).10 actual 102 S.Ct. Accordingly, when the Judge 10. Berzon’s assertion that "dishonesty with the underlying concerns implied bias dire voir has little to do in general

773 juror “have of a relatives close (as where plied it did in after trial arises bias of issue in- a situation in involved here, personally on or, been as Tinsley) McDonough Tinsley, pattern,” fact a similar volving in state aof conviction review collateral Eubanks, at F.2d 528; critical F.2d at dire is the voir court, dishonesty in never at we have “it ill 151 F.3d explains, 517; Dyer, McDonough As factor. on honest voir wipe was finality juror to of so when end done important serves dis potentially when dire. clean” the slate voir on relationship is disclosed

qualifying Hilli- here. do so decline We 555, 104 at examination. dire about dire on voir disclosure ard’s honest than was more to his wife happened what his wife honestly disclosed Hilliard have would follow-up that sufficient were of crimes victim had been relationship be out fleshed crimes to some similar quite and some experience wife’s his tween we Although accused. was Fields which “it is such that was charged crimes on based in Eubanks bias implied found person average unlikely that highly of a experience between similarities his deliberations impartial remain could rise giving the events relatives and juror’s ” (quoting at F.2d Tinsley, .... honest had been trial, not to the 664). Fields had Person, F.2d at sons’ his about dire involvement in voir challenge for point&emdash;a remedy at White, Green heroin. Cf. well as implied lies for cause, which Cir.2000) bias (presuming 671, 676-78 bias&emdash;that have resulted would actual lies); 151 F.3d Dyer, pattern on biased taken, or excused, if well being Hilliard’s lies); juror’s bias from (presuming at 983 (as improperly if Allsup) new trial in a (holding that Gonzalez, at 1114 denied. granted been have challenge should cause or information that events the extent To about voir dire on equivocated when dire honesty in voir Hilliard’s bearing on experience). aside emotional ability set after he juror came as a impartiality Allsup found in that we bias implied The hearing evidentiary empaneled, was relation- direct jurors’ on the based Fields afforded court district by the held vulnera- own and their victim ship with Hilliard to show opportunity of conduct type same to the bility failed juror. He impartial fair not a were robbers bank the accused which actual to show opportunity so. The do personal connection had no Hilliard trial. “ guaran- ‘a remedy and sufficient ais bias to a related was not He sort. of this impartial to an right of a defendant’s tee simi- victim, or witness. participant, ” 216, 102 S.Ct. at Phillips, 455 jury.’ of his account was on experiences larity 171-72, Dennis, U.S. at (quoting Although his own. experience, wife’s 215, 102 S.Ct. 519); also id. see may be im- that bias recognized have we ined&emdash;in impar fair and empanel a order op. doctrine," dissenting Berzon responds juror prospective a jury. If tial true that it is course of beguiling because implied, or markers honestly, then the nothing do with hon to have concerns those par up to the It is then appear. dire; actual bias ani concerns dishonesty voir esty in or facts not challenge. When pursue to values ties in doctrine are implied bias mating the light after the to come dishonestly concealed that voir not true itBut and of themselves. over, eviden- a full been has and there trial protecting those nothing do with to has dire really was juror the tiary inquiry into whether of voir point whole the That's core values. to “im biased, longer need is no there elicit, inquiry, indica through careful dire: actual facts. know anything. We ply” imag bias&emdash;actual, merely implied, or of tors 940 (observing that “[t]his Court has long develop the extent to which juror’s held that the remedy ability for allegations impartial of be in particular juror case is partiality actually, or is a hearing presumptively, in which the affected. For those revelations that occur during defendant has the opportunity to prove dire, voir remedy is a cause challenge; bias”); actual v. Taylor, Williams for those that occur during trial, the reme- 420, 442-44, 1479, 120 S.Ct. 146 L.Ed.2d dy is a contemporaneous proceeding dur- (2000) (quoting Phillips on point ing which the trial court can preserve the and reiterating that may defendant integrity of the jury; for that those occur at an evidentiary establish hearing that a trial, after remedy is post-trial hear- prospective juror who arguably failed to ing. Here, the evidentiary hearing showed tell the truth on voir dire was not impar- no actual effect of his wife’s experience, or tial). of their conversations, ability Hilliard’s to be fair impartial.11 Being the Knowing what we now know aas spouse of a rape not, victim is of result the evidentiary of hearing, we see itself, such an “extreme” or “extraordi- no basis for implying bias as a matter of nary” situation that it should automatically solely law because Hilliard was spouse disqualify one from serving on a jury in a a rape of practical victim. As matter, case that rape.12 involves It cannot be many prospective jurors have close family said that the average person in Hilliard’s or members friends who have suffered position would be highly unlikely to remain similar encounters. It is the role of voir impartial whether he acknowledged dire to ferret out such relationships, and to Rather, not.13 the effect of spouse’s 11. We note that this determination de- bias from the fact juror’s relatives had pend upon testimony juror question. of the tried); been arrested and United v. States Tor See, e.g., Phillips, 217, res, 455 U.S. at 38, 102 S.Ct. (2d 128 F.3d Cir.1997) (declining 940 (rejecting argument that a court cannot to hold that bias implied must be juror where possibly impartiality ascertain the juror of a engaged has in conduct similar to that of the by relying solely upon juror’s testimony trial). defendant at Hunley But see v. Godi but impute must instead jurors nez, bias to in the (7th 975 F.2d Cir.1992) (holding questioned juror's position); Dennis, 339 U.S. burglary sequestered jurors that oc 70 S.Ct 519 (observing that "[o]ne during curred their deliberations concerning may not altogether know or understand the burglary similar charge was an extreme imponderables which cause one to think what justifying situation presumption bias). thinks, he surely but trying one who is as an 13.Relying on Tinsley, Judge Berzon’s honest dissent up man to live sanctity to the of the says that this quite observation "is beside oath qualified is well say whether he an has point,” and that in fact "struggle matter”). unbiased mind in a certain the trial over whether Diane Hilliard could Powell, 12. See United States v. 226 F.3d attend” is "critical in assessing implied (10th Cir.2000) (holding bias issue this case.” dissenting Berzon daughter whose raped had been op. not im- at 808-09. Tinsley But made the inherent pliedly biased concerning in trial kidnaping nature relationship precisely point gratification assault); sexual doctrine&emdash; Gon- for purposes implied cf. bias Thomas, zales not, 99 F.3d 989-90 as the it, dissent would have whether Cir.1996) (declining to rape hold victim some "struggle” kind of actually place took can impartial never rape ain while the trial ongoing. 895 F.2d at 527 as it would “insult not rape all victims (focusing ). on the relationship Whether some but also our entire system, which is built kind of "struggle” place took is an individual upon the assumption ized, honestly will subjective inquiry appropriate to the try up 'to live sanctity ”) question [their] oath’ prejudicial parte ex com m Dennis, (quoting 339 U.S. at unications or extrinsic information infected 519). See also Cooper, Jones v. the partiality jury, it germane but is not (4th Cir.2002) 312-13 (refusing presume to to whether bias particular inheres ain rela-

775 im- Hilliard’s bear on could his wife and de- impartiality juror’s the on experience im- to an amount they could or partiality, considerations personal purely on pends be- communication private permissible case, including, to vary from case can that that, person a third juror and a tween spouse’s similarity of the example, the States, v. United Mattox under case, the the of the facts experience (1892), 917 50, 36 L.Ed. 150, 13 S.Ct. contempora- its experience, the of nature States, U.S. 347 v. United Remmer and couple’s the impact, continuing neous (1954), 654 450, L.Ed. 98 227, 229, 74 S.Ct. it, handles individual the relationship, how the unless the verdict invalidate would re- honest Hilliard’s Given forth. so harmless. were deemed communications poten- a that revealed dire voir sponse Hilliard fact that the an argues not relationship, but Fields disqualifying tially the seriously entertained one, re- his wife extraordinary knew or extreme her been have might dis- that Fields hearing which notion evidentiary of sults of views own of his (regardless no basis assailant bias, we see actual closed no for him matter) impossible it made of law. a matter as now inferring bias Thus, in judgment. independent exercise C rise gave view, conversations Fields’s not prejudice of Hilliard was presumption ato conclusion Our Hilliard urges same Fields also remains rebutted. impartial an stay on during of zeal” “excess an his wife evinced with conversations impar- of manifesting a lack thereby his jury, voir with together considered are trial fail However, arguments these tiality. them. from separately or responses, dire findings. court’s district light after occurred However, the conversations credible, means which Hilliard court found analytically are and so was sworn with trial Fields discuss the not did that he dire.14 on voir responses his from distinct case kind of saying what beyond not his wife obviously could conversations These speculation buy his wife’s not was, did he during or discovered disclosed been have assailant, did he being her Fields’s about afterwards. place they took dire voir crimes with Fields case not confuse Hilliard between Nevertheless, discussions *, Teague S.Ct. 102 & n. at 222-23 litigation juror and the tionship between the cob- concept bias new implicated be (which anis presumed must bias such alleged ex relationship plus out of bled if a even Regardless, inquiry). objective this, Judge Beyond parte communications. "criti- somehow during were struggle recognize that fails to approach Berzon’s juror Hilliard struggle that was no there cal/' partiality allegations of remedy for hearing re- evidentiary in. The participated parte com- as ex such stemming events from that issue. solved is an information and extraneous munications defendant at which evidentiary hearing contrary to the Judge conclusion Berzon’s See, bias. prove actual opportunity has the implied concepts of distinct collapses States, 74 U.S. 347 v. United e.g.,Remmer bias&emdash;which "ex- intrinsically an arises (1954); Phillips, 455 L.Ed. S.Ct. relationship be- "extraordinary” treme” Dennis, 940; U.S. S.Ct. U.S. at litigation&emdash; aspect of juror and an tween Williams, 519; U.S. 171-72, with, or extrin- parte communication and ex 1479; States 442-44, United J., Berzon, on, dissent- juror. influence sic Cir.1988) Madrid, novel, creates do so ing op. at 808. To reiterating authorities (citing these goes well implied bias that category hybrid parte con- alleged ex point in connection recognized. heretofore anything beyond deliberations). such had Fields tact doctrine implicated Teague is While bias actual to show failed but opportunity, by Justice noted the sort implied bias prejudice. Phillips, 455 concurrence O’Connor’s wife, against his and he discussed fered, nothing given that the non-capital charges with his wife that affected his ability to against Fields rape.” included 309 F.3d at fair impartial. 1108. The hypothesizes state tactical rea why sons Jones would Also as shown have wanted Hilli evidentiary hear- ard on jury, but remand, on ing when counsel had a Diane Hilliard asked strategic reason is immaterial, her case, husband about the he Fields told her he prejudiced. not Strickland, was not at liberty to discuss it. She knew at S.Ct. that her juror (observing husband awas on court may case involving prejudice determine young, without African-American first deciding male who had deficiency). abducted Prejudice and shot exists someone. if “there She did not know if reasonable probability that, Fields’s case involved but rape for counsel’s charges. The unprofessional district errors, court found Hilliard result the proceeding never confused the would crimes have been against his different.” wife with Id. at those that Fields S.Ct. 2052. committed, Here obeyed he there is no such trial judge’s probabili reasonable ty, instruction not to discuss Hilliard case until it was not biased. The Further, over. impartiality Hilliard of the truthfully told was not under judge he would decide the mined his being case seated as a juror. evidence and Replacement the law given trial, of one juror unbiased nothing else, and absolutely did another juror so. Final- unbiased not should alter the ly, the district court found that outcome. the discus- sions did not delve deeply, all, if into the As other claims having to do with the facts of Fields’s case and that Hilliard’s guilt phase have been resolved and are not discussions with his wife did not affect his us, before and we now resolve ability to be fair and impartial. bias issues in favor state, we affirm It is Hilliard’s impartiality matters, the judgment denying habeas relief on all not his wife’s. As found by the district claims related to Fields’s conviction. court, the two had no discussions during subject about its IV matter that affected ability Hilliard’s to be fair and impartial. The state cross-appeals the district Thus, the communications were harmless. grant court’s of the writ on Fields’s claim of misconduct based on the jury’s use of

Ill Biblical quotations and dictionary defini- In a claim, related Fields al tions in the penalty phase. presses It four leges that his counsel was ineffective in reasons for error: the claim is not timely failing question Hilliard during voir 9(a) dire under Rule of the Rules Governing about the attack on his wife or about his Section 2254 Cases in the United States ability to serve impartially. To prevail District Courts; the claim is Teague- under Strickland v. Washington, 466 barred; the district court’s finding was 668, 104 (1984), L.Ed.2d 674 based on declarations that are inad- Fields must show that his per “counsel’s missible under Federal Rule of Evidence formance was deficient” “that the defi 606(b); and jury’s consideration of the performance cient prejudiced the defense.” Biblical passages and dictionary definitions Id. at 104 S.Ct. 2052. As panel did not violate the Constitution or have a observed in II, Fields “it is tough imag substantial injurious effect on the ver- why ine [Fields’s counsel] did pursue dict. Fields responds that his rights to what kind of assault Hilliard’s wife suf- cross-examination, confrontation, and the com- of Fields’s phase penalty The by use violated were counsel of assistance a than less lasted July on menced had no he notes because White’s of Juror p.m. from jury deliberated day, and the He on them. position a to take chance a verdict. reaching p.m. without until difference a material there is submits White, fore- Rodney evening, That the evi- on commenting a juror’s between and the Bible jury, checked of the person other knowledge that general from dence “for” notes and made texts reference other con- rebut, jury’s a and easily can jurors pen- the death of imposition “against” man- religious of notes sidering written to the deliberations brought alty which he authority. higher a to appeals dates also consulted day.15 next White verses Biblical contends he And “ex- words of the dictionary definitions for im- supported “strong medicine” were “mitigate,” “vindication,” and tenuation,” when the penalty of death position jury room notes to these brought life without of favor split in were or the shared were notes The as well.16 prejudi- were thus parole, of possibility some by at least was received information cial. Calvin, "Luther, to be Aquinas felt this (cid:127) side notes: "for” 15. The punishment” capital supportive of (cid:127) gods” "placate has to (cid:127) State Romans: Paul’s letter "Per (cid:127) eye” “eye for Satisfy de- reasons —1. two power for (cid:127) "deterrence” 2. Pro- [and] service (cid:127) to crime” of God’s "Fitting punishment mand’s [sic] (cid:127) deterring future crime." "Rights of victim” society tect protect citizens” (cid:127) "Duty of state notes: "against” side The (cid:127) "Biblical” mostly because (cid:127) real deterrent "No value— man's sheddeth ‘Whoso 9:6 “Genesis normal” not murderers shed, for be his blood by man shall blood "Question simple, is no (cid:127) of 'Just' —There ”man' made He image of God in the penalty” ‘just,’ man, so ‘He that smiteth 21:12 “Exodus (cid:127) "Discriminatory selection” dies, surely put shall that he wrong chap fallibility Perhaps (cid:127) "Human " — death' convicted.” Repeated offenses” (cid:127) "Possibility of (cid:127) "Rehabilitation” = values rejection (cid:127) "Murder “ feelings” (cid:127) ‘Popular’ society” (cid:127) Test" “New were: binding on state courts allowed the to presented Fields a ju number of “ exercise ‘unbridled discretion in deter ror support declarations in of his claim of mining whether the penalty death should juror misconduct. Juror testimony about be imposed it after has found that the consideration of extrinsic may evidence be defendant is a member of the class made by considered a court, reviewing juror but eligible for penalty [under the state testimony about subjective the effect of ” Tuilaepa statute].’ v. California, 512 U.S. evidence on the particular juror or about 967, 979-80, 114 2630, S.Ct. 129 L.Ed.2d the process deliberative may See, not. (1994) 750 (quoting v. Stephens, Zant 462 e.g., Roe, Sassounian v. 1097, 862, 875, U.S. 2733, 103 S.Ct. 77 L.Ed.2d (9th Cir.2000) 1108-09 (relying a long (1983)). The points state also out that line of precedent distinction). drawing this date, it was established law that On motion, the state’s the district court a capital jury “expresses] the conscience struck the declarations the to extent that of the community on the question ultimate the information contained in them was in or life death.” Witherspoon Illinois, v. 606(b).17 admissible under Rule However, U.S. based left, on what was the court found (1968). L.Ed.2d 776 While proposi these religious material in White’s notes tions are undoubtedly so, and there is no actually was received by jury, was Supreme authority Court on Biblical available refer to it on the day second of deliber ences in jury room, ations, it is was also true that discussed jurors, some was as of 1984 it was well presented at an established “in early capi stage of delibera tal cases that the tions before should pass a verdict reached, upon was the case free directly from related external a causes tending to material aspect of the to case disturb exercise of references deliberate indicated that the death unbiased penalty judgment.” should be Mattox v. United imposed any States, case involving murder. The district (1892).

court concluded that L.Ed. 917 the jury’s The district consider court’s rul ation of ing Biblical cannot references be Teague-barred offended the at this level principle that religion may generality. not play a role in the sentencing process, and it had addition, In we have been un potential to highly prejudicial. willing Teague purposes require to Before turning merits, to the case we “involving facts, identical circum

must first decide whether this stances, claim is and legal issues.” Keating, 191 Teague-barred. Caspari, See 510 U.S. at F.3d at 1061 n. 11. The Sixth Amendment 606(b) provides: Rule whether prejudicial extraneous information Upon an inquiry validity into the of a improperly ver- brought to jury's atten- indictment, dict juror or may tion, testify (2) any whether outside influence was any as to matter or occurring statement improperly brought upon bear any juror, to during the jury’s course of the deliberations (3) or whether there was a mistake in enter- or to the effect anything upon any that or ing the verdict onto the verdict form. A juror's other mind or emotions as influenc- juror’s affidavit or evidence of state- ing juror to assent to or dissent from the juror ment may not be received on a verdict or indictment or concerning ju- matter juror about which pre- would be processes ror’s mental in connection there- cluded from testifying. with. But a (1) testify about applicable law that the conclude difficult influence of'outside context in the inquiry dic- of circumstances set discrete to a Among other fact-specific. aon by precedent. reviewing court tated requires things, materi particular determine is well-settled: principle core jury room into brought als defendant against developed evidence merely materials, are extraneous are stand. witness come must knowledge which of common Mnd “the jurors Mattox, remarked bailiff possess.” presumed are most de deliberating that they were while 739, 745 Marshall, Rodriguez else, a and someone killed had fendant grounds other on overruled Cir.1997), (9th defen the injurious to article newspaper 815, 828- F.3d Woodford, 299 v. Payton and room the to brought was dant see (en banc); Cir.2002) (9th n. 11 &29 articulat context, Court the this read. Hickman, F.3d 393 v. Grotemeyer also “[pjrivate rule that now-familiar the ed Cir.2004) (stating that (9th 871, 878-79 be prejudicial, communications, possibly aas experience her sharing own juror’s or wit persons, and third jurors tween extrinsic not is the with physician abso are charge, in nesses, officer the or 665 Bagnariol, v. States United evidence); verdict, the forbidden, invalidate and lutely Cir.1981) (discounting (9th 877, 888 F.2d made is harmlessness their unless at least infor extraneous where prejudice of claim 150, 13 Mattox, at U.S. 146 appear.” to ju reasonable “any something mation was to rule the applied Remmer S.Ct. mul knew”). apply alsoWe already ror at See 347 U.S. bribery. of allegations particularly it test,18 makes which ti-factor 18. Factors consider sure dant frontation, of counsel Lawson Cir. ramoglu prong five harmless truncated Bayramoglu, tation senting op. 1995) “more (1) ally introduced extent sidered whether ters rial 1986)). was to facts time of his whether verdict. received, if [substantially and (alterations which of the five-factor than v. so, to which in introduced; v. error it was include: version it; (4) the introduction we cross-examination Borg, 60 F.3d so as at 800. In Sixth at what determining whether Estelle, Judge two decades.” prong five before have identified standard&emdash;and and if available extrinsic has Amendment whether evidence Berzon’s bear point in suggest that a verdict been our so, original) fact, of which injuriously] F.2d how; (2) test discussed (5) 608, material the material deprives defen- the dissent’s the issue dissent the deliberations Berzon, J., any other and implies extrinsic rights to 880, court’s (quoting was 612 jury; was correct there is taken assistance courts was truncates (9th 887 reached, affected test (3) length expo- mate- actu- mat- con- Bay con- quo was (9th Cir. dis ... to no Abrahamson, ed in Lawson whereas quote in matters trinsic issue 123 L.Ed.2d information affected "any suggest (alterations include: Sassounian, original) (quoting 1491-92 Other was the extraneous ^[1] dice; evidence admissible curative other dicial er case, other of ... material whether ambiguously which facts the true ^[4] given step taken the (internal quotation marks Jeffries statement instruction verdict.” matters adduced the trial 353 whether potential 507 Cir.1997)). dissent we have diminished the issues to take may bear [substantially and ellipses (1993). merely cumulative version information v. which context; Wood, reads: phrased; Lawson, prejudicial prejudice at 1109 considered account 619, ameliorate trial; of Thus, and evidence introduction insufficiently ain original). on the may bear prong five 113 given or "(5) any other particular 60 F.3d was otherwise ^[3] the truncated (alterations in of ^[2] S.Ct. injuriously] issue...." ^[5] Brecht statement extrinsic of other whether omitted) on states: wheth- of ex might 1710, preju- in the preju- some 1484, case 612 v. 228-30, 74 S.Ct. 450. In Turner Louisi- S.Ct. 120 L.Ed.2d 269 ana, 466, 473-74, 379 U.S. (1992) (Stevens, J., concurring in judg- (1965), L.Ed.2d ment). had continuous White’s “for” notes all exposit and intimate contact key with two govern- well-known themes. So do his “against” ment witnesses. The Court also held in notes. In effect he general, marshaled Gladden, Parker v. 363-64, commonly points known in favor of the (1966), L.Ed.2d 420 death penalty' “eye for eye,” “deter- — the defendant’s Sixth Amendment rights rence,” “fitting punishment crime,” were violated where the bailiff told a “rights victim,” and the says Bible so— the defendant awas “wicked fellow” and along general, commonly known if there anything were wrong in find- points in opposition real deterrent —“no ing the guilty, defendant Supreme value,” “there is no simple, ‘just,’ penalty,” Court would fix it. “discriminatory selection,” “rehabilitation,”

We and “perhaps have found improper wrong chap influence in convicted.” circumstances, similar Fields nowhere suggests for example, when White was juror received not free to threatening a telephone recite these points, call including home, at those Bible, United States v. the from Armstrong, or to 654 resort to their 1328, (9th F.2d reasoning. 1331-33 Cir.1981); See Calderon, McDowell v. when the jury (9th 1351, learned that F.3d Cir.1997) the defendant had (noting that committed prior robbery, type “‘[t]he armed of after-acquired information Jeffries (9th v. Blodgett, 5 F.3d that potentially Cir. taints a verdict should 1993); juror when a told be carefully others about distinguished the general the defendant’s reputation violence, knowledge, opinions, Law feelings and bias that ” son, 60 612-13; F.3d at every when juror the jury carries into the room’ discussed an extra-record telephone (quoting call Hard v. Burlington Co., N.R.R. that directly related to (9th the defendant’s mo Cir.1989))); Bur- tive, Sassounian, 230 F.3d 1108-10; lington, at 870 F.2d at 1462 (denying new and when a provided detective who trial where juror crucial one personal used knowl- testimony had a twenty-minute edge of x-ray interpretation conversa to sway others tion, factually to trial, unrelated because the expected “[i]t is jurors will three recess, bring v. their life experiences Caliendo to bear on the Warden Cal. Men’s case”); facts of a Colony, 365 F.3d see Ylst, also Raley of (9th Cir.2004). (9th 470 F.3d Cir.2006) (noting that the jury’s of discussion practical the White’s notes are not like these exam- effect of imposing a sentence of life with- ples. They are a mix of ideas “for” and out parole does not constitute reversible “against” capital punishment. Both the error, and holding that considering the Biblical verses and the other concepts con- sentences’ comparative costs doesn’t ei- tained in the notes are general notions of ther). It is difficult to see how sharing currency that inform the judgment moral notes can be constitutionally infirm if shar- that capital-ease jurors are upon called ing memory isn’t. make. As “[wjhile Justice put it, Stevens question of innocence or of guilt Fields correctly points out that we have offense essentially is a question fact, of held it is improper prejudicial for the choice between life imprisonment capi- prosecution to invoke God para- or to punishment tal both question is of phrase under- a Biblical passage in closing argu- lying fact and a matter of reasoned moral ment in the penalty phase of a capital case. judgment.” Sawyer v. Whitley, 505 U.S. See Calderon, Sandoval v. need said, do not we That However, pros- Cir.2000).

776-77 misconduct there whether decide that a ways constrained is ecutor was, we are assuming there even Sandoval, explained, we as not. no sub had notes that White’s persuaded pur- frustrated argument prosecutor’s or influence effect injurious stantial is to which closing argument, of the pose Sassouni jury’s verdict. determining presented evidence review Brecht19 (applying at 1108 an, 230 F.3d as defined decision jury’s relevant claim of review on habeas standard Id. the court. given instructions by the evidence).20 extrinsic considered “high- invocation Also, prosecution’s brought should have not White or Whether violated authority extra-judicial law” or er shared room and his notes nar- principle Amendment Eighth Biblical say that them,21 cannot we Id. sentencing discretion. channeled rowly had the notes part “for” part involving argument Further, noted we ver on the injurious effect substantial jury’s authority undercuts religious part an “against” had People opinion in recent Court's Supreme 623, nia 1710 Brecht, 113 U.S. at 507 19. 305-09, 287, Cal. Williams, 52 40 Cal.4th v. determining whether for (adopting standard (2006), held 268, which P.3d 47 Rptr.3d harmless). was error Bible, from reading verses several that 1-4, 13, although Romans, Chapter including under that posits dissent Judge Berzon’s 20. inherently misconduct, and substan not was ques- constitutional Lawson, "the relevant " jury under influenced likely to have tially vote juror's’ single a 'even whether is tion” ” J., law. Berzon, California dis- 'improperly influenced.' certainly cor- it is While senting op. at that "federal 800. claims dissent Judge Berzon’s right to an agree generally Amendment the Sixth courts appellate rect that state review, of a by presence jury violated that a impartial de novo engaging in when Lawson, juror, consultation improperly influenced single unconstitutional engages 613, show nevertheless introducing the Bible Fields must by 60 F.3d material of extrinsic a sub- had extrajudicial capital trial.” during information a that the deliberations into verdict injurious effect For this J., Berzon, dissenting op. at 795. stantial federal) cita (and only Brecht. under the lead proposition 1291, Campbell, 416 v. is McNair tion issue Cir.2005) sides (recognizing on both "it undis arguments (11th The dissenting majority and evi in the extrinsic out well set ... considered jurors are puted that decision in Circuit’s when Fourth in the opinions during deliberations” their dence Cir.2006) (4th Polk, Bible), cert. 438 F.3d v. aloud foreperson Robinson read act unreason- did not denied, court that state 126 S.Ct. (holding U.S. reading of However, jury’s court determining (2006). that ably in L.Ed.2d sentencing delibera- procedurally passages Bible issue held McNair violate the there did it weren't capital defaulted, case even if tions in stated togeth- rights), quot remark Amendment Sixth made petitioner’s prejudice, was no rehear- fact. in the denial a statement with a concurrence parenthetical er ined reported Judge Wilkinson ing en banc speculates dissent 22.Judge Gould’s Cir.2006) (suggesting that were passages quotations Bible discussing "White's avoid instructed juries be for jury to vote convincing the catalyst in authority decision a source Bible as J., Gould,1 dissenting op. at sentence,” death Califor- acknowledge the We also making). ly, was instructed to base its for the balance of bank her account. He decision on the facts and the law as stated later shot her, and killed apparently be- judge, regardless of ju- cause she had written a check for less ror agreed with it. We presume ju- than the full balance. Defendant and a rors follow the instructions. Kansas v. companion then stole a car at gunpoint, — Marsh, -, 126 S.Ct. kidnapped prostitutes, two raped them (2006); 165 L.Ed.2d 429 Richardson both, and severely beat one of them. Marsh, 200, 206, They then kidnapped woman, another (1987) 95 L.Ed.2d 176 (applying “the car, stole her and took her to defen- almost assumption invariable of the law house, dant’s where defendant raped her instructions”). follow their and attempted get money from her bank account. Thus the aggravating evidence is heard evi- powerful, as dence not only all murder, of a judges who have but also reviewed the of a record pattern of have criminal which, remarked. behavior Justice with- Broussard’s in the summary period short weeks, of three California in- Supreme Court, cluded at least assessing prejudice three kidnappings, rapes, under Strick- land and robberies. concluding there We recognize, was no possibili- as habeas ty corpus it: out, counsel points that murders special circumstances

[A]side from cases of are multiple generally murder, horrifying crimes, juries but that this was one never- aggravated more theless return cases to verdicts of imprison- come before life this court. Defen- ment dant without previously possibility had of parole been convicted of more than half the manslaughter. He cases. But we embarked on think his that even man within “one crime wave” this limited sphere of immediately after reference, this being released case is among from prison. the most kid- He aggravated. napped the murder victim and her took to his house where her, witnesses Fields, saw In re 51 Cal.3d 1079-80, 275 bound, naked and in 384, defendant’s bed- Cal.Rptr. (1991) (internal 800 P.2d 862 room. He her forced to write a omitted). check citation this, Given we see no 788, however this trenches territory pre into upon lies the district court’s that “a statement 606(b). by cluded Rule longA line of majority authori jurors of the favored verdict of life ty makes clear that may a court not consider without the possibility parole jury of until the whether an outside influence caused a Berzon, discussed the Biblical references.” vote; change his question J., the prejudice of However, dissenting op. at 798. only the one, from extrinsic objective information is an support for this statement is the Declaration subjective See, Sassounian, not a e.g., one. Henry, of Delores assuming which —even it cases); F.3d at (citing 1108-09 may v. Dickson properly be considered—states that Sullivan, (9th Cir.1988) 849 F.2d "there were jurors, herself, several including ("the question prejudice of objective, is an who favored an LWOP sentence.” Nowhere one”); subjective, rather than a United States say (again, does she even if it properly could Bagnariol, v. (9th F.2d considered, 884-85 Cir. be) be which it cannot that she 1981) ("Jurors may testify regarding changed extrane her mind on account of White's prejudicial ous improper or information out notes. What the record shows is that White They side may influences. questioned not be shared his notes with at least some about the process deliberative or subjective around 9:30 in morning and jury information, effects of extraneous nor can reached a unanimous verdict around 3:00 such by information considered the trial or p.m. Of course that means that the verdict courts.”); appellate Spain, Rushen v. 464 U.S. notes, reached "after” White shared his 121 n. 78 L.Ed.2d 267 but there is no surmising basis for a causal (1983). Judge Berzon's similarly dissent re- link between the two. and quotations biblical of written foreman account on error constitutional prejudicial punish- capital “against” and “for” notes issuance requires notes that juror’s of majority’s deci- disagree I with ment. writ.23 of extraordinary if this to decide not sion for terms Dictionary definitions law” “higher jury foreman appeal implicate directly the instructions used jury misconduct. constituted Bible of the which by court by the given the law conclu- majority’s with disagree I also If a determined. must be jury’s decision quota- Bible written use sion instructions, the with help jury needs jury manner in this and notes tions Mis judge. ask to do is thing proper any substantial have did not deliberations these to research it though was conduct jury deliberations on the injurious effect review jury definitions, sentence. and death consid jury’s say them, we cannot and concurring in its part jury base join, that the Judges, require confrontation at trial. part: in dissenting presented evidence on the verdict 472-73, Louisiana, 379 U.S. v. Turner I, II, III of and Sections I concur (1965). “It is 13 L.Ed.2d insofar as majority opinion Rymer’s Judge should that the capital cases vital urged by Fields claims bias rejects it from external free the case upon pass con- his from relief habeas grounds as of the exercise to disturb tending however, dissent, causes respectfully I viction. Mat judgment.” unbiased and deliberate IV in Section analysis majority’s 140, 149, 13 States, 146 U.S. v. United tox by the introduction challenged Accord- as to them. disposition panel's the state’s reach do not this we reason 23. For of Fields and V Parts IV we reinstate ingly, for reversal. remaining arguments III, at 1199-1206. hav- of issues number raised also 24. Fields we abide phase, but penalty ing do with (1892). S.Ct. 36 L.Ed. 917 These pense to no man evil for evil. Provide rights apply equally to sentencing proceed- things honest the sight of all men. If it ings jury, tried to a they do guilt possible, as much as you, lieth in live deliberations. Morgan Illinois, See 504 peaceably all men. Dearly beloved, 719, 727-28, 119 avenge yourselves, but give rather (1992). L.Ed.2d 492 place unto wrath: written, for it is Ven- geance mine; I repay, will saith declining to decide if the introduction Lord.”; 21:18-21; Deut. Exod. 31:14-15. biblical quotations and notes is lopsided extreme nature of misconduct, pro majority argues that Bible and con simply lists verses underscores em- are not similar to extrinsic materi- phasis placed White justifica- Biblical als that we Supreme Court have tion of the death penalty. previously prejudicial found they are “notions general currency that in- Moreover, I think it fanciful for the ma- form the moral judgment” of capital-case jority say that the quotations Bible are jurors. supra See Section IV at 780. This merely “notions general currency that argument is unpersuasive. inform the moral judgment that capital- case are called upon to make.” The To begin, majority postulates majority claims that White’s quota- Bible White’s researched Bible verses and notes tions were all themes,” “well-known were “a mix of ideas ‘for’ and ‘against’ that he “marshaled general, commonly capital punishment.” supra See Section points known in favor of the penal- death IV at 780. One need not be a biblical ty.” See supra Section IV at 780. The scholar to see that the provided list by the majority say does not what percentage of foreperson was slanted personal his general public is familiar with each of judgments inclinations, in- these quotations, even if that were as- spur tended to deliberations towards a sumed to be valid. If these biblical verses sentence of death rather than life impris- are well known as “notions of general cur- onment. On alone, sheer numbers White’s rency,” why did White have to conduct Bible references in favor of the pen- death research to produce them? It is thing one alty had at least thirteen separate entries, to say something is common knowledge with over one thirty lines of writing and when a person recites from memory, but lengthy several quotations direct from the it is quite a different thing Bible, altogether to including quotation one of thirteen argue that a Bible verse is common knowl- lines of verse. supra See Section IV edge when person has to research the 777 n. 15. Conversely, “con” side had Bible, and write down text to remember it. no quotations Bible and a mere six entries on six written lines. Additionally, Certainly, the majority is not claiming “con” list was comprised piecemeal each every word the entire ideas and thoughts, whereas “pro” Bible common knowledge? case, In this death penalty list contains numerous refer- White conducted independent research of ences to higher law from the Bible such as the Bible and dictionary. He wrote down an for “eye eye” and everyone “‘[l]et be present his results to during jury delibera- subject higher to the authorities, for there tions the following day. Furthermore, ” authority exists no except from God.’ See White didn’t simply jot down a few biblical id. Missing from the “con” list are biblical catch-phrases, but he instead wrote down quotes that might have been marshaled over seventeen lines quoted of text. Put- against the penalty. death See e.g., Ro- ting aside biblical scholars and persons James): mans 12:17-19 (King “Recom- capable of extraordinary memory feats, it

785 discussions These and non-belief. belief seven- many persons for unlikely that is divisive, range might be likely would text, thir- indeed of biblical teen lines legal and appropriate the afield from far can one quote, from lines consecutive teen Amer- pluralistic aIn inquiry. factual curren- general of a “notion as be viewed place room must remain ica, the cy.” law, in firmly rooted ground common of charac can if be Moreover, these even sincerely held deeply of irrespective cur general of sensibly as “notions terized religious differences. some that they notions rency,” then are Cir.2006). 225, 227 divinely commanded as might view only to the applies majority’s rule the If from the quotes these If inspired? or from the Judaeo- quotes of currency,” introduction of general “notions Bible are some- Bible, this then introduces Christian the same say that majority the then would vio- Clause akin to Establishment thing in brought had foreperson if the true is If jury room.1 heart of into the lation religious other from quotations written what if okay, are Bible from Bhuddism, quotes Hin those of texts, whether from quotes in brought had foreman religions Islam, of other or even duism, or fatwa, indicat- Koran, particular or from adher of groups smaller that command murder was act of terrorist ing some that Fourth of the Judge Wilkinson As ents? religious text. under different okay concurring opin his in emphasized Circuit jury fore- law that be our Surely it cannot II): (Polk Polk v. ion in Robinson in aby may urge action persons teachings are uni- of its Though many from provided quotes written accord remains versal, the Bible nonetheless devel- Bible, the evidence external theolog- as the serves text sectarian jurors cannot trial, but in the oped religions certain ical foundation reli- from other statements written submit brought into could be If it not others. like effect. gions for discussion a basis room curren- general of punish- “notions ultimate idea upon the The and debate even not majority does would one that may impose, cy” it the state ment will corral, is an idea dif- and this jurors of try to while before only a short practice when holy unworkable likely prove their own brought faiths ferent ma- of the scope try to delimit The courts conversation. into the texts solely princi- Is it ethical doctrine. jority’s to debate place room is it also Does Bible? familiar Bible, the Ko- from ples of the merits respective reli- other from principles ethical religious include Torah, any other ran, principles ethical it include revere, Does gions? nor Americans scripture include Does philosophers?2 from a clash between forum proper it the 1966) (1962); Gary J. Simson J., Michigan (Wilkinson, Press II, F.3d at 1. See Polk Heaven’s Garvey, Knockin’ Stephen P. & ("And First Amendment concurring) Religion Rethinking Role Door: unique poses religion plainly illustrates Cases, Cornell L.Rev. Penalty Death Con- legal system. The within our concerns Prejudiced Egland, (2001); T. Terrence therefore, not, religious allow does stitution Religious Keeping Presence God: ones.”); Shel- legal replace considerations Deliberations, Penalty Death out Material 1, 20, Kraemer, ley (2004). 337, 356-66 Cap. Def. J. (“The (1948) judicial action L.Ed. 1161 and unmistakable the clear each case bears Yale Black late Professor State.”); G. also Paul see imprimatur Capital Punish- wrote University Law School Constitution, and the Liberties Kauper, Civil Caprice and Mis- Inevitability ment: University of (1st The paperback, take, ed. the death urging end of 141-52 piece street-corner wisdom such as might to jury deliberations quota- Bible found in popular novels of any number of tions that pro were death penalty, and left current authors whose books line the su- out quotations Bible spoke to mercy. permarket shelves? Moreover, the passages from which White quoted “explicitly reject[ ] the drawing of merely

This is not a case presenting distinctions in cases,” Jones, murder juror misconduct in introducing extrinsic F.Supp. 1559-60, and directed jury evidence. It is worse because the evidence to impose any death in case involving mur- White introduced was that of a “higher der. These Bible passages, law” commanding from the Bible. The United Stales death, inserted “higher law” Supreme into the jury Court has labored for decades to deliberations and applicable unconstitutionally set rules for re- death penalty cases lieved from their constrain the individual exercise of re- discretion by sponsibility to determine help and that ensure to com- that when the mit death Fields to death penalty implemented is or sentence him it to life is based imprisonment. on II, law. That See Polk means that it is 444 F.3d at based on 227 (Wilkinson, J., law, secular concurring) on the law (reasoning of God or of particular juror’s “place Bible’s as a view canon of of that law. scrip- tural authority powerful is so “use deliberating jurors of an supplant threatens the individualized (not extrajudicial code already embodied sentencing inquiry into the nature and con- characters) their own cannot be reconciled sequences of the crime and particular Eighth requirement Amendment’s aggravating and mitigating circum- that any decision impose death must be stances”); Harlan, People v. 109 P.3d the result of discretion which is carefully (Colo.2005) (reasoning Bible, that the and narrowly channeled and circumscribed higher law, very is persuasive to a by the secular jurisdiction.” law of the typical juror as it relieves “the from Jones Kemp, v. 706 F.Supp. his or her individual responsibility to de- (N.D.Ga.1989). California’s penalty death termine whether to commit person provides statute specific the jury factors is death because God commands that re- to consider to distinguish “the few cases in sult”). which [the death penalty] imposed the many in which it is not.” Here, Godfrey v. White introduced Biblical quota- Georgia, 420, 427, 446 U.S. tions passages and into deliber- (1980) (internal 64 L.Ed.2d 398 quotation ations. The quotations Bible were cir- omitted). Here, marks White to, introduced culated by, discussed penally rehearsing arguments pro and poses, rest, put has been Supreme also, con in it. Consider Mohandas K. Gan Court Gregg decision in Georgia, dhi, Non-Violence, My Faith in in Social and (1976). 49 L.Ed.2d 859 (John Philosophy Sommerville & Political eds., E. 1963) Ronald Doubleday Santoni 3. There shortage is no popular authors who ("[W]herever you are op confronted with an write subjects, on crime-related among these ponent, conquer love.”). him with Could a many Turow, consider the novels of Scott

jury foreperson bring other Koontz, written Dean majori- others. Under the quotes from pro Professor Black’s rule, book ty’s might foreperson have summa- con penalty? death Perhaps thinks, Ghandi's rized what Turow or what his fictional teachings would be allowed? think, Introduction of characters about the penalty? death works, these them, and others like would Certainly say some would press these authors transform deliberations into a post discussion general views of currency in the Yet, merits of penalty. world, the death why and that they are bestselling debate, at least for United legal pur- States authors. ex not to consider jury was The § 190.3. deliberations. during its collectively dictionary materials, the including ternal informa- of extrinsic introduction White’s de phase Bible, penalty its or the religious pre- tion, extrinsic especially what precisely is But that liberations. miscon- Bible, from the cepts they did. jury in the presence Bible’s The duct. deliberations, I miscon- if it was that majority admits a focus The room as trial the disregard Judge jury Wil- from the phrase duct for may borrow defini- and research line.” instructions “the constitutional court’s kinson, crossed (Wil- supra Section dictionary. See in a tions II, at 226-27 Polk See Yet, majority presumes the at IV concurring). kinson, J., in- court’s the trial jury the followed that II verdict penalty reaching its in structions discussing the Bible consulting and it after vacated if should be sentence White’s at 782. Section IV supra See quotations. error juror misconduct the is shown as the presume, is What basis there or injurious' effect and “had substantial does, consulting both after majority jury’s determining the ver- influence for aid dictionary the Bible and the Abrahamson, 507 U.S. v. Brecht dict.” disre- deliberations, jury the members L.Ed.2d 353 619, 623, 113 S.Ct. insights and divine the secular garded States, v. (1993) Kotteakos United (quoting and based sources from gleaned these 90 L.Ed. and the the facts on sentencing decision (1946)). Indeed, judge. by the trial law stated intro- majority White’s The concludes jury This likely. is just opposite passages, and quotations Bible duction trial court’s follow the it did not proved prejudicial was not dictionary research Because instructions. explicit specific (1) presumed it because: primarily jury that the this, recognize should we instruc- trial court’s jury followed instructions the trial court’s disregarded on verdict sentence its to base tions on sentence their and based death (2) law; Fields instructed facts and judge, as stated and law the facts nor jury, on influence not show did independently insight but also in light majority opinion to the apparent the Bi- from garnered support researched supra Sec- crimes. See heinous of Fields’s dictionary. ble and at 781-82. tion TV analysis is majority’s prejudice The ju rule, presume we general As a re- written White’s thinking. wishful instructions. the trial court’s rors follow passages Bible quotations searched — U.S. —, Marsh, See Kansas introduced penalty death were favor of the (2006). L.Ed.2d day second start jury to the inescapable that conclusion the district But here According of deliberations. court’s follow- the quotations did not Bible written court, White’s charged the to the discussed, trial court made available The instructions. were time to sentence the total determining whether about 70% jury, for on an initial imprisonment, and jury or life deliberated. to death Fields Bible these written vote, seeing only the to consider before instructed life sen- to a was more inclined quotations, trial and factors presented evidence authority Given than death.4 tence Penal in California enumerated Code juror to influence caused an outside correctly points out majority opinion 4. The vote; prejudice question of 606(b) change his Rule of Evidence Federal that under objective information extrinsic “may not consider precedent we and our law,” “higher Bible’s and the scripture. time The majority fails to realize was to White able advocate for the death that a written appeal to “higher law” of the sentence using these quotations, it is not a Bible in the jury room by tendering notes stretch say to objectively that White’s Bi- to jurors the that were not in admitted quotations ble and passages were cata- evidence or by tested cross-examination is in lyst convincing jury the to vote for a inconsistent with the carefully wrought death sentence. by scheme which the Supreme Court has held that the ultimate penalty of death can We good have reason suspect that by meted out jury when the are rules the change here in jury’s the proba views followed. Fields’s horrific, crimes are and bly were related to the misconduct. Con it is not difficult to see jury that a might sidering that if one had declined have decided that death was warranted. to sentence Fields to death the trial court But the rules were not followed in jury the would have been obligated to impose a life room in the penalty phase. .Evidence or sentence, it is probable more than not that extrinsic material was admitted White’s introduction of written researched was up by summoned jury foreman. quotations Bible jury into deliberations This situation was made worse the evi- had injurious” “substantial and influence dence or extrinsic material being of reli- Brecht, jury’s on the verdict. 507 U.S. at gious nature that would unduly influence 623, 113 S.Ct. 1710. jurors. The majority’s conclusion One error only hope that the Ninth harmless is entirely Cir- speculative, cuit will eventually for it come to recognize probable seems an absence of opinion majority here errs marshaled blinking biblical lore favoring death over serious might misconduct that have oc- tilted least one curred the penalty phase. seeking the The last retribution of a death penalty thing that needs, this country and a embracing thing mercy of imprison- life inconsistent with our ment.5 constitutional tradi- The timing, the source of the ex- paramount tions role of ternal evidence material, or extrinsic justice our criminal system, is to specificity have a of the notes and lopsided theocratic room in which a jury pro fore- eon persuade chart me that the present man can with notes com- notes had a substantial injurious influ- piled from the Bible with a “pro selected ence in determining the verdict. I re- and con” on the penalty death light of spectfully dissent. supra Yet, one.” See IV at Section 782 n.22. I have observed in another context: “As my observation majority that a jurors of be- Shakespeare reminded quality us: ‘The seeing fore quotations written Bible were strain'd, mercy is not It droppeth gen as the favoring a parole life sentence without is not tle rain from Upon place heaven beneath.’ subjective discussion on whether White’s too, So analysis in our prejudice, we must quotations Bible and extrinsic notes caused remind ourselves that possibility mercy, change Rather, their votes. rain, like the possibility gentle pre is not court recognize should this fact starting aas certainty.” dictable with Mayfield v. Wood point, noting similar to when White intro- ford, (9th Cir.2001) (Gould, duced his outside written research into the J., (in concurring) part quoting William deliberations. These objective facts inform an Shakespeare, Venice, IV, analysis Merchant act to determine if the introduction of 1.). sc.

White's improper Bible quotations written had a injurious substantial and effect or influ- ence in determining jury’s verdict. disregard able he assertions with whom BERZON, Judge, Circuit un- between the THOMAS, resemblance Circuit the close REINHARDT wife not rape of his dissenting: kidnapping join, solved Judges, with and the crime the long before charged with Fields was Lamar Stevie It so even does charged. was which Fields had the constitutional He capital murder. so marked was the resemblance though de- jurors impartial have twelve right to that convinced wife became juror’s he had that the law California cide under he her and with which been assailant crime could have Fields grave the committed so, should and, he to if whether the trial con- during charged repeatedly tried Instead, he was a result. life as attend the her lose his to let her husband vince fore- whose jury by a to death sentenced he was.1 tell whether trial so she could room, and jury into the brought person the district in which order Following the consider- colleagues his before placed claims, I first ex Fields’s court addressed that quotations Biblical ation, lengthy materi of extrinsic use jury’s instructions, amine with judge’s with the clashed the Bible— from passages law, principally, con- and with penalty death California als— I ex deliberations. sentencing phase penalty .governing precepts stitutional correctly he was And de court case. district penalty why plain in a death by a jury to death Fields’s sentenced action violated convicted this that termined cir- personal whose juror containing majori one why the rights, and constitutional and as- cumstances, speaking objectively disregards analysis lack-of-prejudice ty’s his on faith effort entirely good suming an mak that inhere problems the unusual circumstances, those disregard to part regard determination with ing prejudice a could be he unlikely that highly made it jury on influences external impact of to the decision- indifferent” “impartial why, in the address I then deliberations. has long alone process that “due maker of this case—which circumstances unique Illinois, 504 U.S. v. Morgan demanded.” juror’s wife fact that beyond go far 2222, 119 L.Ed.2d 112 S.Ct. stood that Fields rape victim (1992). juror’s challenged rape accused —the court held district The federal in emotional for substantial “potential death to condemned could not Fields impartiali affecting volvement, adversely texts religious encouraged rely Borg, 895 Tinsley v. ty” palpable. as instructions judge’s than rather Cir.1990) (9th United (quoting 520, 527 majority The decision. its fateful basis for (9th 68, 71 Cir. 566 F.2d Allsup, v. States court, however—after this en banc omitted). marks (internal 1977)) quotation almost, quite, sanc- not but exegesis extreme “one of Those is therefore This recourse collective jury’s tions relationship between where situations Bible—some- from the quotations lengthy litiga aspect of some juror ... been would have Fields how divines unlikely that highly tion is such that if even to death and sentenced convicted impartial could remain average person ab- the Bible’s consulted had circum under deliberations his death imposing standards solutist ” Miller, Person (quoting Id. stances.’ concludes majority also penalty. Cir.1988)). 656, 664 juror’s dispositive accept we must Lane, Teague v. majority that Fields's agree with I (1989). L.Ed.2d not seek claims do jury bias misconduct foreclosed of law application retroactive I. jurors unbiased of average intelligence likely were to think the same way with the proceeding Before discussion, either same input, if deliberations were like however, I begin with some reflections arithmetic or algebra, then we could do about complex vision of the role of the with one rather than many. But we jury in legal system our that underlies don’t, and we don’t want to. See both Ballew v. sets of legal principles here applica- Georgia, 230-39, 98 S.Ct. dealing ble—those with the sealing off of (1978) 55 L.Ed.2d 234 (holding external influences once they the Constitution requires seated, juries are criminal and those dealing comprise at least six bias members in part or be- predisposition. Quite evidently, cause a smaller size both “leads sets of to principles inaccurate grounded are to fact-finding and incorrect degree application some a “black of the theory box” of the common sense of ideal the jury: perfect juror, community The to posit, on the this facts,” and is a because “the person who opportunity comes into court with all meaningful and appropriate his or her reasoning processes intact, representation and bias, minority [of groups] no does predisposition, or prejudgment decrease with panels”); size of the would be an obstacle to fair see also Tinsley, decision- making. F.2d at perfect juror 528 (noting the exposed is then foolishness of a testimony, to that doctrine that evidence, would categorically argu- and disqualify jurors parties present ment from serving and that in cases in which their judge group deems proper law, under affiliations might suggest and is a tenden- cy later told by the judge, particular and toward a the judge outcome (citing alone, which legal principles Salamone, United apply. to States v. Our (3d Cir.1986))). paragon then limits his or her deci- sion to that presented, which was Other considerations as well temper in argued, which was and that which was our jurisprudence the “black ap- box” instructed, generating a verdict pristinely proach to deliberations. Among the insulated from all extraneous influences, most important is emphasis place we internal and external. on importance of the privacy

But the “black theory box” deliberations. Jurors who expect virtue is, quite far their obviously, from processes the whole deliberative sto- will be open ry. As the place exposure stress we obtaining and interrogation after the jury that represents a fair verdict cross-section are likely pull to punches —to peers indicates, see, say defendant’s less they mean, than e.g., keep to then- Louisiana, Taylor v. reasons 530-31, to and only pronounce themselves S.Ct. (1975), conclusions, L.Ed.2d 690 bottom-line we and to fail to re- value, also recognize, spond points and per- diverse jurors. made fellow spectives jurors of Pless, different See professions, McDonald v. 267- racial backgrounds, (1915) economic circum- S.Ct. 59 L.Ed. 1300 stances, (“But areas, residential let it political and once be and established that ver- religious views bring to dicts solemnly made publicly determination and returned guilt even, and innocence and as in into can court this attacked and set aside on case, life and death. Jurors all cut the testimony of those who took part mold, the same we have believe, publication come to their and be, all verdicts could are likely to engage less in useful be, many collective would followed inquiry deliberations, in which the greater whole is in the hope of discovering something which than parts. its Put way, another if might all invalidate the finding.... If evi- to a a barrier likely to be used, simply too thus could be fair— thus secured dence but pristine not intend- what be to make would fair —consideration result legal standards evidence, argument, deliberation, the con- private to be ed include instructions They also presented. investigation; public subject of stant to discuss forbidding them freedom of all frankness destruction fellow anyone other than case with conference.”). discussion the case discuss seated and once course, is, of consideration An additional the instruc jurors before even fellow simply hu- jurors are recognition jury retires to given and are tions beings are not and human beings man 0.50 See Cal. deliberate. JüRY InstR. Crim. recollection, their in their perfect, among your (“You converse must not ability or their language, understanding of else, including but selves, anyone or with motivations their own fully to understand to, leaders or spiritual spouses, not limited McDonough See processes. reasoning subject con advisers, therapists, on Greenwood, 464 U.S. Inc. v. Equip., Power trial, except when all nected with 845, 78 L.Ed.2d 668 548, 555, (a) has The case exist: following conditions respon- (“The to (1984) responses varied decision you your to been submitted testify to the dire on voir question dents’ by counsel court, following arguments necessarily experts are not jurors fact (b) instructions; are You discuss jury and from they are as usage. Called English in (c) All and juror; a fellow case with ing the as life, many may be uncertain all walks of are persons] no other jurors [and twelve rela- are which meaning of terms to the deliberating room.” jury in the present lawyers and easily understood tively time, (brackets the same At original)). have do to Legal processes judges.”). must jurors insist that rarely do only we end, litigants, while as- come to an trial, during rath altogether cloistered be trial, not are a fair to suredly entitled their communities— to going home er than (“To id. perfect one. See entitled to to exposure of possibility the real and to of a three-week the result invalidate fami media, of friends opinions to the mistaken, though hon- juror’s aof inves conduct to opportunity ly, to to insist on is question, to a response est beyond those inquiries legal or tigations than our perfection closer to something And ac in the courtroom. available give.”). to expected can system judicial also include jury procedures commodating ideals, competing of This constellation into inquiry evidentiary limitations has led values, practical considerations it verdict issues—limitations jury’s once and stan procedures set of de absolute, a nuanced are to but which not that are “impartial and objective, an into designed assure inquiry dards allow signed to of sight losing may have interfered without indifferent” factors external R. the need backgrounds, functioning. See diversity jury’s Fed. value with the 606(b) pro inquiry into jury’s (“Upon deliberative insulating Evid. ..., may not inquiry, from a verdict degree validity later large cess oc any is matter statement or reality perfection testify human as and the jury’s of the future. the course curring in the near likely time anything dire, to the effect de or voir include deliberations procedures Those or juror’s mind any other intru or unduly upon out without to ferret signed juror to assent influencing the have as who emotions individuals inquiry those sive con or the verdict ..., to or dissent ease—to its particular connection processes juror’s mental cerning facts, legal standards —such its its parties, may aBut therewith. not, connection that connection that, consciously or (1) testify about whether preju extraneous recognizes because, very not— dicial improperly information was brought juror in question said, in this case “you can (2) attention, jury’s to the [and] never be sure what’s in the your back of any outside influence was mind.” it improperly And also sight loses of the im- ”). brought permeable upon any juror.... to bear line we have set between draw- ing on one’s life experience and active All three of these sets of procedures sources, research of outside with regard to could be much more absolute if our com- the facts or to the legal standards that are mitment to the “black box” rig- were govern the case. which, said, as I decidedly have id— The fine, distinctions drawn Yet, appear not. they posit all beyond limit but they are they established and are the which an departure extreme from the ideal result of compromises considered reached is unacceptable and will lead to reversal of over time between the competing consider- reached, verdict. That limit is in the govern ations that jury deliberations, some terms, general most when the circum- of which I have suggested. To resolve this jurors stances of either one or more or of case on the basis of slogans example, the nature —for deliberations are jurors the assertion that bring their moral such that simply we lose confidence that precepts room, to the or that we must the verdict was reached on the basis of the believe say they who can overcome facts, argument, legal pre- standards any emotional relationship they have to the sented in the courtroom. particular simply facts—is to disregard majority places a great deal of its the careful law, balances struck in our case emphasis upon the considerable barriers so to allow the all-important jury system erected, we have very good reason as I to serve its purposes. critical said, upon have post-hoc inquiry jury into verdicts, upon our encouragement of II. interchange among jurors based on their A. experiences. so, life doing however, sight loses of the fact that we have not let Before beginning penalty-phase deliber- go of the conviction that there are circum- ations, jury was instructed that “[a]fter stances in which the connection of a having considered all of the evidence in particulars to the of a great case is so this having case and taken into account all an emotional rather than rational verdict is of the applicable upon factors you which likely likely whether the instructed,[2] so have been you shall deter- —and 2. Those (d) factors were: Whether or partici- not the victim was a pant in the defendant's homicidal conduct (a) The circumstances of crime of or consented to the homicidal act. which the defendant was convicted in the (e) Whether or not the offense was commit- present proceeding and any the existence of ted under circumstances which the defen- special circumstances found to be true.... reasonably dant jus- believed to be a moral (b) presence or absence of criminal tification or extenuation for his conduct. activity by the defendant which involved the (f) Whether or not the defendant acted un- attempted use or use of force or violence or der extreme duress or under the substantial express implied threat to use force or person. domination of another violence. (g) Whether or not at the time of the of- (c) Whether or not the offense was commit- capacity fense the ap- of the defendant ted preciate while the defendant was under the in- criminality of his conduct or to fluence of extreme mental conform requirements or emotional his conduct to the dis- impaired law was turbance. result of mental disease or the affects [sic] intoxication. ” (em- Madrid, the case.’ imposed to be penalty whether the mine added) death or confinement shall be v. phasis (quoting Spain, on defendant Rushen for life without the Prison in the State 114, 121, Nonetheless, after parole.” possibility (1983) curiam)); (per L.Ed.2d 267 see also deliberations day penalty-phase the first (9th Borg, 74 F.3d Thompson v. trial, jury foreperson, Rod- Fields’s Cir.1996) (“Juror typically oc- misconduct White, home; consulted the Bi- ney went curs when a member of the has intro- dictionary; wrote out three ble and into its deliberations matter which duced copies including verbatim pages of notes— was not in evidence or in the instruc- 9:6, Exo- passages, three Bible Genesis added)). (emphasis tions.” 13:1-5, 21:12, widely un- and Romans dus Here, question there is no that the Bibli- capital punishment; to advocate derstood passages pertained cal copied those notes into the room the White brought shared them with his morning; key next legal question before jurors. fellow penalty phase death was the —-whether appropriate sentence for Fields’s acts. As consistently recognized that have We observed, correctly the district court sev- prohibits jurors the Sixth Amendment passages expressed eral of the an absolute matters into delibera introducing during the trial. command to execute murderers: presented tions not See Clanon, Gibson passages The Biblical cited Juror Cir.1980) jury’s that a consid (explaining general passages dealing White were not material is a constitu eration of extrinsic morality commonplace prin- or the violation). Although our case law tional ciple capital punishment permis- misconduct as the often refers such in the in the sible abstract Judeo-Chris- evidence” jury’s consultation of “extrinsic religious tian tradition. The ethical facts,” explained have or “extraneous we references directed “[ejxtraneous-evidence involve cases penalty imposed death should be per the introduction of ‘evidence’ involving case murder. in but the ‘submission of “extraneous se dictionary) or to the (e.g., formation” file Calderon, DT, Fields v. No. CV 92-0465 ” Rosenthal, 454 jury.’ United States (C.D.Cal. 2000) (em- 18, slip op. at 15 Jan. Cir.2006) (9th 943, (quoting F.3d 949 Unit added) (citation quota- internal phasis Madrid, 1090, ed States v. 842 F.2d 1093 omitted). tion marks (9th Cir.1988)); see also Marino v. Vas that in their question There is also no 499, 502-03, 505 Cir. quez, 812 nature, con- passages absolute the Biblical 1987) consulting dictionary (holding that notes clashed with stan- tained White’s meaning of “malice” con definition for the making for provided dards California law of extrinsic in stituted the consideration jurors instruct- such decisions. The were formation). Instead, analysis of an extrin decision based Cali- ed to make their on depends on whether sic information claim penalty 1977 death statute that fornia’s “pertainfs] ‘any the outside information for de- process detailed an individualized controversy any applicable fact in law (h) (j)Any circumstance which extenu- age of the defendant at the time of other though the crime. gravity of the crime even ates the (i) defendant was an Whether or not the legal is not a excuse for the crime. accomplice partic- to the offense his 190.3 (1977). § Cal. Penal Code ipation commission offense relatively minor. 794 a defendant

termining whether should be Constitution. As we said in Sandoval v. executed: Calderon: having

After heard received all of of higher extra-judi [I]nvocation law or evidence, the trier of fact shall con- authority cial violates the Eighth sider, guided take into account and be principle Amendment the death by aggravating cir- mitigating penalty may be constitutionally imposed section,[3] cumstances referred to in this only when un findings makes penalty and shall determine whether the a sentencing der scheme carefully imprisonment shall be death or life with- specific focuses the on the factors it possibility parole. out the is to in reaching consider a verdict. The concepts Biblical of vengeance ... do (1977). § 190.3 The Cali Cal. Penal Code recognize not such a refined approach. Supreme fornia has Court held this statute Argument involving religious authority “require[d] upon concentrate jury’s also undercuts the sense of own surrounding the circumstances both the responsibility imposing for the death People and the offender.” offense v. Jack penalty. son, 264, 316, 603, Cal.Rptr. 28 Cal.3d 168 (1980), 618 P.2d 149 overruled on other 765, (9th Cir.2001) (cita- 241 F.3d 776-77 Cromer, grounds by People v. 24 Cal.4th omitted);4 Polk, tions see also Robinson v. (2001). 23, Cal.Rptr.2d P.3d 243 (4th Cir.2006) J., (King, “religious doctrine, Accordingly, command dissenting from the denial of rehearing en passages” ments or biblical are “factors banc) (“In effect, this requested People outside section 190.3.” v. Sando jurors his fellow throw the individualized val, 155, 193-94, Cal.Rptr.2d Cal.4th required consideration the Constitution (1992), P.2d on other aff'd wind, to the for while the Constitution

grounds, 127 requires penalty that the death imposed (1994). L.Ed.2d 583 through structured discretion By introducing murderers, the absolutist Biblical narrow class of the worst deliberations, into principle eye commands White effec- of ‘an eye’ for an licenses tively that the suggested ignore punishment murder, death as a any sentencing process provided position rejected by individualized Supreme Court as Constitution.”).5 by state contrary law demanded the federal to the Substan- supra ing” guarantee 3. See note 2. includes the will simply impose penalty vote to the death majority's I fail understand claim that Morgan, murder. 504 U.S. at jury's own decision to deliberate based result, 112 S.Ct. 2222. As a a death sentence upon the Bible is less violative of the constitu- jury is unconstitutional if includes “even requirement narrowly tional of channeled good one” who "will fail in faith to sentencing prohibition discretion or on under- aggravating consider the evidence of and mit- cutting jury’s responsibility sense of for igating circumstances as the instructions re- imposing prosecutor urging a death than 729, quire him to do." Id. at 112 S.Ct. 2222 Maj. op. same effect. at 781. The ultimate added); (emphasis Wainwright see also v. jury actually substantive concern is how the Witt, 412, 422, 844, 469 U.S. 105 S.Ct. 83 deliberates, not who them caused to deliber- (1985) (allowing potential juror L.Ed.2d 841 a ate in an unconstitutional manner. to be removed for cause when his voir dire context, suggest closely answers that "he refuses to follow the Supreme 5. In a related statutory emphatic "might been scheme” and instead Court has that the Sixth vote for (em- guarantee personal impartiality Amendment to "the death under certain of standards” omitted)). any jury capital phases that will undertake sentenc-

795 room, it around to the jury passing that then, no doubt there is tively, Harlan, jurors”); People a of v. 109 P.3d introduced set other quotations Biblical (Colo.2005) the ones the 616, (holding contradicted the use that 629 of standards deciding apply to jury supposed jury was materials in the room written Biblical or die. was to live Fields prohib improper under state law “[e]xposure jury of a to information or ited of con propriety procedural As to the deliberations, process of the trial it fed influences outside during Bible sulting the generally self’); Harrington, courts 627 S.W.2d appellate State v. eral and state review, (Tenn.1981) in de novo engaging 345, (holding error oc agree 350 when in the engages unconstitutional jury that a jury curred when “the foreman buttressed material intro extrinsic consultation of imposition of the death argument his during Bible into deliberations ducing jury by reading to the selected penalty v. 416 Campbell, trial. McNair capital a passages”); Lenz v. Warden biblical Cir.2005) 1291, (recogniz 1308 Prison, 318, I 267 Va. Sussex State jurors ... con undisputed that ing “it is (2004) 292, (analyzing defen S.E.2d 298-99 during their de evidence extrinsic sidered present a dant’s claim that Bible jury foreperson read when the liberations” Supreme pursuant room denied, Bible), cert. aloud a extraneous improper test for Court’s 1828, 1073, 164 L.Ed.2d contacts).7 Although several these (2006);6 F.Supp. Kemp, v. Jones complete of a presence involve the cases (N.D.Ga.1989) (holding the use of a room, making in the copy of Bible impermis constituted Bible exacerbates, only portions certain available of extra for the command sible “search ameliorates, pre problem rather than than the from source other judicial [a] ‘law’ by the introduction of Biblical writ sented State, v. So.2d judge”); McNair Here, jury deliberations. ings during a (Ala.Crim.App.1997) (analyzing Biblical the selection leaves out example, of the Bible deliberations jury’s use condemning that can read as passages principle the “well settled according to mercy condoning penalty the death fair trial fundamental to law ... [that] Gould, in some instances. See Dissent only consider jurors ... should at 785-86 n.2. J. (quoting at trial” Ex presented evidence law, majority rely on case Unable (Ala.1984)) Troha, 462 So.2d parte conduct was not mis suggests White’s (internal omitted)); People mark quotation “are notions because the notes conduct Banks, 8 Cal. 32 Cal.4th inform the moral (2004) currency that general (holding Rptr.3d 82 P.3d are judgment capital-case by “bringing juror engaged misconduct Maj. at 780. op. make.” upon into the called passage copy [Biblical] that a state trial The Fourth has held says Circuit majority that McNair referred 6. The clearly extracts as "extrinsic evidence” the Bible established did not contravene court Maj Op. at 782 of fact.” "as statement by refusing to con law Supreme Court case in a sec- The Eleventh Circuit so stated n.22. jurors engaged in miscon sider a claim "Merits,” lengthy tion after called by reading a delibera duct from Bible applica- setting paragraph out standards Polk, 350, 363- v. 438 F.3d tions. Robinson assessing impact evi- of extrinsic ble to - U.S. -, denied, (4th Cir.), cert. McNair, In 416 F.3d 1307-08. dence. See (2006). The 166 L.Ed.2d 383 court “undisputed” comment is not sim- context the noted, however, possi could that "our answer parties' positions but an ply a of the statement bly Id. at de novo review." be different point as to be that the is so obvious indication indisputable. majority’s Initially, command, I that the obser tence religious note the result of likely challenged by vation would tens view, my then in an important line has of Americans who view the millions crossed.”). been Bible as a collection of “notions” about majority suggests also that all the a principles, repository moral but as courts that consulting have held the Bible imperatives hard-and-fast direct must impermissible to be reliance on extrinsic Polk, daily life. See Robinson v. 438 F.3d (4th Cir.) material J., wrong are because the (King, Biblical dissenting) (“[T]he majority fact ignores quotations that the up, copied, White looked is an morality— Bible authoritative code of brought jury into the room were simply and even law—to a segment sizable of our “general, commonly points known favor — -, cert. population.”), denied penalty,” death is difficult “[i]t (2006). 166 L.Ed.2d 383 sharing see how notes can be constitu- significant White’s notes were therefore tionally infirm sharing memory if isn’t.” representation for their factual the Maj. op. at suggested equiv- 780. But this statements, Bible contained apart such disregards alence the careful balance be- from the moral philosophy that the state tween the precepts regarding jury various expressed. ments themselves deliberations I discussed at the outset. In ease, In I why to understand fail fact, clear, as Morgan juror makes who distinction between extrinsic statements of penalty voted for the death on the basis of general currency moral and other extrinsic position absolutist sanctioned by the legal bearing materials has a on this case. quotations Biblical placed White before his Although the majority suggests that jurors fellow would violate his oath to significant distinction is in this case be- follow California quite separate law. For jury capital assigned cause the in a trial is principally, preservation of the reasons — making judgment, the task of a moral Ias privacy jury deliberations and of the explained, have the absolute nature of Bib- finality verdicts —we would not al- lical materials introduced White contra- inquiry why any low into individual vened permitted role of moral consid- voted for the penalty, death or into state- erations and instead violated the principle regarding why they ments made to others that capital sentencing must be individual- should do the same. But that forbearance Moreover, ized. the moral nature of death interest; serves an independent it does not penalty judgments does not religious allow disregard sanction the of the instructions. a proper considerations to be matter for deliberations, rather than a factor There is a why second reason this case can privately contemplate in the course of is not involving similar to ones undertaking their awesome responsibility. introducing argument into deliberations Robinson, (Wilkinson, See 444 F.3d at 227 personal based on his knowledge. such J., concurring in rehearing the denial of en cases, we have held that no misconduct banc) (“There ais difference between a Marshall, occurred. Rodriguez See juror bringing a Bible into the room (9th Cir.1997) (juror dis- personal strength and support and the difficulty cussed he “discerning had reading as a whole debating recalling objects driving freeway while biblical text as the basis for life and Calderon, speeds”); McDowell v. death decision. Such debate is constitu- Cir.) (juror tionally argued during problematic.... If presence a Bible in deliberations that “a room drives the collec- sentence of life with- discussion, tive a capital parole renders sen- out ... wouldn’t pa- mean ‘without therefore, majority, no what. The ”), parts, in other matter vacated en banc role’ (9th Cir.1997); Burling- Hard v. wrong portray F.3d 833 this case as similar to (9th Co., 1454, 1462 N. R.R. ton memory,” “sharing and this case does not Cir.1989) (juror arguments made question jurors of whether act raise military prior based on his deliberations impermissibly by referring to their faith x-rays). But these experience interpreting Maj. op. at during deliberations. See proposition cases are based on opinions, feelings, general knowledge, “the B. into the every bias that carries ” however, Ultimately, majority equiv- considered dur- jury properly room are Hard, 870 F.2d at 1461 ing engaged deliberations. in ocates about whether White added); States (emphasis see also United misconduct, but that his actions did holds Navarro-Garcia, prejudice doing, Fields. so Cir.1991) (“[A] juror’s past personal expe- majority ignores indications deemed part an of the appropriate riences law, relevant our established case added)). (emphasis jury’s deliberations.” in- appreciate unique fails to issues noted, As I have the success examining volved in an extrinsic informa- coming in on the system large part rests tion claim in the context of an attack on a in background, of these variations together jury verdict. of view. perception, point 1. The district court determined that however, case, undisputed In this prejudice did Fields. White’s misconduct product were the that White’s notes criti- concluding, Before so the court made research, than of overnight Biblical rather concerning the intro- findings cal factual familiarity the Bible that al- with White into the duction of the Biblical material of deliberations. ready had at the outset court room: The district found proscribing importation The case law came at a time when the introduction places external information its all on proper divided on the sentence. was this distinction matters: proposition jurors, we the deci- considered and discussed we choose want [T]he After made on the basis of what went on sion references in their delib- the Biblical courtroom, per- through filtered that, Henry erations. Juror stated sonalities, information, and background brought to the delibera- the foreman reasoning ability jurors brought of citations from pages Marino, recommending 1110; of imposition

favor of dence. See id. at penalty.” 8; the death Juror White stated at 505 & n. see also Mattox v. United “brought penal- that he the notes to the States, 140, 147-51, jury ty phase deliberations and the con- (1892) (holding, 36 L.Ed. 917 after examin- notes were discussed dur- tents these ing the against common law restrictions ing our deliberations.” impeaching through verdicts testi- has declara-

Respondent submitted mony, that the defendant should receive a jurors in they tions from several which jury new trial based on misconduct be- they did not recall stated dis- cause admissible evidence demonstrated dictionary cussion of the Bible or defini- jury in “[t]he the case before us re- However, tions. the declarations sub- tired to consider of their verdict on the 7th by respondent mitted confirm the October, agreed had not on the finding that references Court’s Biblical 8th, morning newspaper of the when the provided by were Juror White dis- them”).8 article was read to jury. cussed Moreover, that thought White it neces- sary bring the Biblical material into the case, ... this there is evidence [I]n jury room after an initial session of delib- jurors majority that a favored a strongly erations suggests that the materi- possibility verdict of life without the al could impact jury. have had an on the jury parole until the discussed the Bibli- Presumably, White felt that reviewing the cal references. material at analysis home had affected his Calderon, 13-14, slip op. Fields v. 16-17 thought might have a impact similar (second (citations in original) alteration on if brought jury others into the room. omitted). Why spend would he copy- the time hand quite properly The district court consid- ing the if material was close to a jurors’ ered the statements decision, in which case his work likely was undecided at the time the Biblical Gibson, for naught? See 633 F.2d at brought material was into the room (“[T]he fact that at least two unanimity and that came after that necessary believed that it was to obtain 606(b) point. Rule Under the Federal is, itself, more evidence an indication Evidence, Rules of federal courts can con- that there have been need to resolve “juror testimony sider about the consider- lingering some hesitation or uncertainty.”). ation of extrinsic evidence” but cannot Also, quite aside from the time and man subjective testimony consider “about the ner which this extrinsic information was juror.” effect of particular evidence introduced, its poten content had a clear Roe, Sassounian v. tial to previ affect deliberations. haveWe (9th Cir.2000). Here, the district court ously pas observed that one of the Bible did not find that the discussion of the sage reprinted verbatim White’s notes — ju- Biblical material was the reason that Romans “commonly 13:1-5—is understood vote, rors changed merely their but providing justification imposition for the occurred, vote changes and when. We penalty,” of the death and its invocation previously proper have found it to consid- timing sentencing phase er the of a capital shifts votes rela- tive to the introduction of extrinsic evi- “cloak[s] State with God’sauthori- majority op. finds no fault with the district at 778. 606(b). application Maj. of Rule court's See Sandoval, 775, about the penal- 241 at 779. We what the Bible said death ty.” prosecutor’s that a allu- ty spend copying lengthy quo- held in Sandoval to time out in concert with other passage, to that jurors sion tations and that other reviewed the references, a defen- religious prejudiced have direct passages. So we here evi- according to right to be sentenced dant’s impact jury dence of an on the delibera- imposing the statutory scheme in lacking tions that was Sandoval. at Sandoval penalty. Id. 778-80. death recognized courts have also Other the record did not explicitly noted specially prejudicial jury’s nature of a con- jury actually consid- disclose whether the of Biblical material. sideration One feder- argument, Biblical prosecutor’s ered the jury’s al court has held that a district that “we cannot but it nonetheless held during penalty consultation of a Bible religious ar- prosecutor’s that the assume phase “may highly preju- deliberations be persuade did not at least one of gument repre- dicial to the defendant” because change to a vote for life to likely “a carry sents source which ‘would at 779. death.” Id. weight laymen and influence their majority’s attempt Notwithstanding the ” Jones, F.Supp. decision.’ 706 at 1560 of the prosecutor’s to frame a invocation Kemp, 777 F.2d (quoting Wilson than actual damaging Bible as more its (11th Cir.1985)). Likewise, Colorado’s room, Maj. at entry op. into the 780- Supreme prejudice has found Court 81, our case law and common sense dictate the introduction of the Bible into delibera- juror’s conclusion: A fellow opposite juror in tions: least one this case “[A]t into introduction of such material could have been influenced these au- greater potential an even for a room has passages thoritative to vote for the death effect, is prejudicial because the defendant penalty may when he or she otherwise mitigate jury’s unable to consideration have voted for a life sentence” because prosecutor he of the Bible as can when religious Bible and other documents “[t]he brings example, by it into the trial —for in by many are considered codes of law closing to account tailoring argument his ... contemporary communities from which by insuring or religious arguments for the Harlan, jurors are drawn.” 109 P.3d judge that the instructs the to consid- only statutory er the relevant factors. See 630-31. (“[W]hen Gibson, the nature of the extrinsic Given intro- considers facts that have not been in information involved this case and the may in ... the violation duced evidence in it was received manner which rights than these are more serious where jury, majority’s, reversal of district stage proceed- denied at some other no-prejudice grounds inexplica- court on ings the defendant have no majority ruling, ble. In so determines what has been consid- idea new evidence had “no the notes substantial It to offer evidence to impossible ered. injurious determining effect influence in it, instruction, a curative rebut to offer lack jury’s verdict” and holds this significance argument discuss its precludes pursuant habeas relief impact

jury, steps or to take other tactical Abrahamson, Brecht v. Moreover, might impact.”). ameliorate its (1993). Maj. 123 L.Ed.2d 353 S.Ct. any juror know we do not whether op. at 781. paid prose- attention Sandoval Supreme requirement Court’s But do cutor’s Biblical references. we granted relief be Brecht habeas juror in know that at least one this case— inju- an error has a “substantial sufficiently concerned about when White —was effect” was derived from the harm mine in nous the habeas context whether extrin- enunciated in less-error standard Kotte sic prejudicial. information is That test States, akosv. United S.Ct. requires us to consider: (1946). L.Ed. 1557 507 U.S. at (1) actually the material was explains 1710. Kotteakos our (2) received, so, how; and if length variety conducting task in this of harmless- (3) of time it jury; was available to the error review: jury the extent to which the discussed If, done, all is said and when (4) it; and considered whether the ex- conviction is sure that the error [court’s] trinsic material was introduced before a jury, did not influence the or had but reached, so, verdict was and if at what effect, very slight the verdict and the point in the deliberations it was intro- judgment should stand.... But if one (5) duced; other matters which assurance, say, cannot with fair after may bear on the issue.... happened all pondering without stripping the erroneous action from the Estelle, Bayramoglu v. 806 F.2d 887 whole, judgment that the was not sub- (9th Cir.1986) States, (citing Paz v. United stantially by error, swayed it is im- (5th Cir.1972)). I, 462 F.2d 746 like possible to conclude that substantial court, the district would hold that all of rights inquiry were not affected. The point prejudicial these factors toward the merely cannot be whether there was nature of White’s notes. result, enough support apart phase by affected the error. It is First, dispute there is no that the mate rather, so, even whether the error itself actually rial was jury received when so, had substantial influence. If or if foreperson brought its the notes into delib doubt, grave one is left in the conviction Second, erations. the notes entered the cannot stand. jury room at the start of day the second 764-65, 1239; at 66 U.S. see also deliberations, jury which meant the consid Payton Woodford, v. 346 F.3d 1218 ered during the Biblical material the ma (9th Cir.2003) (en banc) (explaining that jority of the time considered Fields’s inquiry our reflect “great- Brecht must sentence —four-and-one-half of the six-and- reliability” penalty er need for in the death Third, one-half hours of deliberations. Calderon, (quoting context Coleman v. notes were all available to members of the (9th Cir.2000)) (internal 1047, 1050 F.3d jury, and several members of the omitted)), quotation marks rev’d on other submitted attesting pres affidavits to their grounds Payton, nom. Brown v. sub Fourth, ence in the room. the mate 161 L.Ed.2d 334 rial entered the piv room (2005). Where contention is that the period otal when the sentence was far jury improperly considered extrinsic infor- Fifth, from settled. “the extrinsic infor mation, inquiry Brecht this must focus directly mation related to a material issue upon the impact extrinsic material’s in the case”—the proper sentence. Law any juror, juror’s a single because “even son, 612; Marino, at improperly vote see also deprives influenced (“[R]eversible unprejudiced, defendant of an unanimous F.2d at 506 commonly error Borg, verdict.” Lawson v. 60 F.3d occurs where there is a direct and rational (9th Cir.1995); Sassounian, see also connection between the extrinsic material 230 F.3d at 1110. prejudicial jury conclusion, and a directly circuit where the misconduct relates

This for more than two decades to a case.”). has relied on a five-factor test to deter- material aspect of the Calderon, mercy.” Fields v. giveness and we Moreover, only one of the factors at the effect of the Biblical Wood, slip op. 16. So identified Jeffries capital exclusively favor of (en material was Cir.1997) banc), potential- were “against” Lawson, or some given was instruction See religious curative considerations. preju- to ameliorate the at step (finding early taken at “the stage other context; the dice; information was intro- the which the extrinsic insufficiently prejudicial was that “the dictating statement was factor duced” one in the injuri- given substantially the issues evidence juror misconduct verdict”). major- case. the The ously influenced factor, presumption our normal ity’s third omitted). (footnotes at Id. 1491-92 instructions, jurors inappo- is that follow determining that the majority, jury’s very decision to con- site when the does not the here meet extrinsic material conclusively the evidence sider extrinsic standard, judges the prejudice Brecht the that it did not demonstrates follow misconduct nature of White’s prejudicial only on the law as stat- rely instruction to largely it of factors creates based on set Also, this factor by judge. the would ed cases, rect review of federal criminal after Federal Rules of Evidence makes a defendant has demonstrated that the uniquely prove difficult to that extrinsic evidence, jury considered extrinsic we evidence had an jurors. actual effect on readily prejudice find absent evi- specific That prohibits jurors rule testifying from prejudice. dence that there was no See subjective “about the effect of [extrinsic] (“Extraneous Rosenthal, at 949 454 F.3d evidence particular juror.” on the Sassou cases ... call for information more search- nian, 230 F.3d at 1108. So a court will review; ing grant we new trial if ‘there never directly have admissible evidence possibility is a reasonable that the material linking juror’s extrinsic materials with a ... could have affected verdict.’ [W]e vote, final see Rutherford, United States v. generally place the burden party ‘on the (9th Cir.2004) 371 F.3d 644 opposing (explain .a new trial to demonstrate the ” omitted) 606(b) prejudice.’ (emphasis absence of ing that under Rule “a cannot previously apply 9. This court has refused to presented to an extrinsic information claim in "strong[] . presumption” prejudice to an a habeas case: "the State bears the burden of presented extrinsic information claim in a rebutting presumption by showing specified habeas case and instead jurors' consideration of the extrinsic evi analysis applies. Thompson, standard Brecht defendant”). dence was harmless to the 1; Pyles at 1575 & n. see also v. Moreover, Thompson is in some tension with Johnson, (5th Cir.1998) 136 F.3d 992-93 application presumption, by our of the Mattox Mattox/Remmer, (rejecting rather than thaf requiring government to tha "show[] Brecht, provides judge the correct standard to t possibility there no reasonable that the prejudice of an extrinsic information verdict,” [error] influenced the ain habeas review); claim on habeas Bibbins v. Dal involving ju case communication between a sheim, (2d Cir.1994) (per 21 F.3d cu party. ror and a third Caliendo v. Warden of riam) believe, however, (same). pre I that a (9th Colony, Cal. Men’s 365 F.3d sumption prejudice may properly apply to Cir.2004). Nevertheless, I will assume that an extrinsic information claim even under presumption ap does not Mattox/Remmer Thompson, Brecht. See 74 F.3d at 1577-82 ply on habeas review of extrinsic information (Reinhardt, J., McNair, dissenting); see also claims. (applying presumption 416 F.3d at 1307 liberty The Court is not to influence verdict. an outside testify to whether from inno change subjective his vote ‘the effects of investigate him to caused has Eighth As the Circuit guilty”). any jurors, cent on whether such effects breach explaining observed Mattox/Rem negate shown to affirm or might be presumption: mer Instead, prejudice.’ of actual conclusion 606(b) the dis- precludes Rule Because inquiry into the the Court must conduct subjec- investigating from trict court material potential of extraneous prejudicial on any extrinsic material tive effects of facts, Objective average juror. might effects jurors, whether such therefore, inqui- the focus of the become negate the conclu- to affirm be shown Kuhlman, ry.” (quoting Simon v. prejudice, presumption actual sion of (S.D.N.Y.1979)) (citations 59, 68 F.Supp. and the burden is is created prejudice omitted)), 806 F.2d Bayramoglu, cited in prove harmless- government on the majority’s not to at 887. The decision ness. apply conducting this test its Brecht Bassler, States v. United analysis upsets our settled balance for de- Cir.1981). juror’s” termining single whether “even Bayramoglu adopted The test we “improperly influenced”—the rel- vote jury’s consider determining whether Lawson, question, evant constitutional prejudicial of extrinsic information ation prohibited courts are F.3d at 613—when effectively served as our means of has from directly finding out right secrecy mediating between the on their deli- effect of extrinsic information 606(b) a habe finality under Rule process. berative right constitutional petitioner’s untainted extrinsic evidence. See Sas * * * sounian, (noting F.3d at 1109 Rule sum, I have no doubt White 606(b) ignore “to requires the court by in unconstitutional misconduct engaged ... prejudice most direct evidence Biblical research injecting overnight his quality an ‘Alice in lending] Wonderland convinced, deliberations, I am into the defen whether[the the discussion of to in which account the manner taking into ad actually prejudiced by the was dant] jury, ” its na- the material came before the misconduct,’ holding but mitted ture, determining and our usual test factors led to a determi Bayramoglu, the material, arising from extrinsic prejudice rights defendant’s were nation that the . substantially conduct influenced this 606(b) notwithstanding the Rule violated jury’s penalty phase the deliberations. Sassounian, People v. (quoting limitation right to have his deprived Fields was of his 361, 419, Cal.Rptr. 880 Cal.App.3d only by jurors applied who fate decided (1986) (Johnson, J., dissenting))); United standards, legal rather than applicable the Castello, F.Supp. v. 849-50 States scrip- (“The conflicting standards derived (W.D.Tex.1981) rule is well estab ture.10 jury may impeach that a its own lished trial —which "fell below minimum standards” the misconduct renders

10. Because unconstitutional, evidentiary appointed it is according Fields’s death sentence referee Court, unnecessary whether he received to consider Supreme by 51 Cal.3d the California during the assistance of counsel 1063, 1068, ineffective Cal.Rptr. 800 P.2d 862 note, however, phase penalty of the trial. I omitted)— (1990) (internal quotation marks lawyer's in inves- that his blatant deficiencies weight majority’s make the reliance on history preparing a tigating his life and in troubling. quite aggravating evidence mitigation penalty phase case for the III. robbed, whipped, and raped her. He then her, “well, bitch, told I’m going have to was not denied right Fields his you however, shoot now.” His plan, was jury applying law, an impartial the correct interrupted by a local resident who noticed addition, court found. district suspicious car and came out to investi- presence of an individual on gate. Diane Hilliard recounted that who, objectively speaking, not “impar attacker “threatened to come back to fin- indifferent,” tial and violated Fields’s con ish me off’ before fleeing quite plausi- rights stitutional even before the con —a ble threat because he had stolen her purse sidered material during the Biblical its that contained her home address. .When penalty-phase Morgan, deliberations. See Floyd Hilliard arrived at the hospital after 727, 112 S.Ct. 2222. attack, he found his wife disheveled Floyd wife of Hilliard had shock, a state of nursing a broken crime, been the victim of unsolved nose, lacerations, head eye. and a black details quite allegations similar to the wife, According to Floyd his Hilliard was against gen- Fields. The extreme distress “shaken,” “upset,” “shocked,” “angry” erated attack —stoked the fear upon seeing injured her state. More than perpetrator unknown would re- twenty-five years later, Diane Hilliard had turn —was affecting family still at the no hesitation in calling the attack “the Moreover, time of the trial. during the horrifying experience most in my life.” trial Floyd Hilliard was faced with re- According Hilliard, to Diane the crime peated suggestions from his wife that “radically changed” both her and her hus rapist, Fields was her respond had to life, part band’s perpetrator because the nightly requests to her to attend the trial caught. was never In a deposition, suspicions. to confirm her she confirmed long “[f]or time after Any circumstances, indepen- of these attack[,] I lived in terror that he was dently, likely place would unusual and un- out there” and “that feared he would come predictable Floyd strains on Hilliard’s ob- good make on his Floyd threat.” Hilli jectivity. presents Their combination ard also deposition confirmed a 2003 case[], “extraordinary [in which] courts very, that the attack “a very upsetting may presume bias based on the circum- Following attack, event.” Diane Hilli- Calderon, Dyer stances.” began ard carrying handgun in her (9th Cir.1998) (en banc). Because the purse, and continued to do so strain from the combination these facts And, time of trial. mirroring Fields’s his likely Floyd was far too to affect Hilliard’s fear, Floyd wife’s Hilliard for the first process recog- deliberative whether he so couple of weeks after the attack frequently not, presence nized or his on the sat the window of his house with a violated rights. Fields’s constitutional shotgun, watching for the rapist’s return. Floyd Hilliard testified that if the attacked A. back, “had come I something had years Floyd Two-and-one-half before him.... If he made entry, unauthorized jury duty, Hilliard was called for his wife your enter at own risk.” Diane Hilliard Hilliard, Diane driving home from a testified that her fear began to subside party, Christmas had been abducted at family when the moved to a new gunpoint by a man who rammed her car home, years several Fields’s trial. after while it idling light. was a traffic The car, assailant forced allegations Diane Hilliard into his against Fields included location, drove pistol- her to a remote many of the rape, kidnap- same crimes— question, dire emo- to voir suffered answer those robbery, assault —as ping, consciously did nature of the crime perpe of a tional at the hands Hilliard by Diane answers, Moreover, making him his less loose. influence on the trator still crimes have might of those than he otherwise operandi forthcoming modus details Diane Hilli- similarities. substantial been. had African slender by a attacked ard was was selected as Floyd After Hilliard twenties, which in his male

American suggested to him juror, repeatedly his wife of Fields. description physical matched rapist. her In might Fields her through a driving while abducted She was Hilliard recounted think- Diane deposition, away from only ten minutes neighborhood good possibili- a pretty that “there was ing his the area where house and Fields’s responsible for ty” that Fields was her Adding similari occurred. crimes Accordingly, “begged” she each attack. forcing his ties, charged with was Fields the trial permission for his to attend night gunpoint, car at which to enter his victims rapist. her to see if Fields was in order person actions of to the was similar Hilliard, however, these refused re- Floyd court This Diane Hilliard. who abducted did, however, himself requests. He peated wife was that “Hilliard’s recognized during the trial about how testi- think quite crime that similar of a victim happened what mony like “sound[ed] previous Fields” when charges against my wife.” evidentiary case for remanding this ly although The district court found Cir. hearing. not Fields Floyd Hilliard did believe 2002). abductor Fields’s modus his wife’s because findings on re- court’s As the district from the operandi had some differences demonstrate, his Floyd Hilliard and mand attack, he did not want her of her details to the similar- far from oblivious wife were he did come to the because not “to time of Fields’s crimes at the ity of the juror him as a compromise her to want in- charges informed trial. When psychological he did not want the trau beginning at the the case volved life.... Mr. Hilli to affect their home ma selection, doubted he Floyd Hilliard wife would be trau was concerned his ard his because of be selected as would and that it would testimony matized response parallel experience. wife’s at 31. In his family problems.” Id. create questioning voir about dire explained also Floyd Hilliard deposition, victims of family members had been close request his because he refused wife’s crime, that his Floyd Hilliard disclosed fact, indeed, did ID him she “suppose beaten, robbed, “assaulted wife was that would invali ... perpetrator then found ago.” The court years two district He objective juror.” recog me as date in voir dire that not mention that “he did would have re development such nized kidnapped” raped had been his wife himself as a disqualify him to quired more ex- to be he “did want ongoing compromised would have was about what open court than he plicit in trial. “thought to his wife” and happened would understand parties court and B. in the context the word 'assault’ his use bias”— jury bias Most claims-—“actual assault.” encompass sexual would a he did juror that a evidence be founded on must DT, 92-0465 Woodford, No. CV Fields against” a vote 2003). disposed to “was cast (C.D.Cal. 30, In July 44at slip op. at F.3d 981. But Dyer, 151 words, court found defendant. other while district eases, may pre- extraordinary courts “[i]n in his Hilliard not dishonest Floyd 806 based on bias and partly juror

sume bias circumstances.” because the may be cases, “implied added)). the doctrine of Id. such unaware it.” (emphasis In this disqualifies affected individual respect, bias”11 the implied bias doctrine applied jury, serving from on dictates that to parallels conflict-of-interest rules whose fate was decided defendant that apply lawyers and judges. See juror has been denied his constitu such Dyer, 151 F.3d at n. 22. 983 Those rules panel to a fair trial right tional lawyers and judges taking “ban[ ] from jurors. and indifferent” “impartial Mor cases in certain conflict situations even if 727, 112 gan, S.Ct. 2222. 504 U.S. they objective are certain that the conflict will have no influence on them and are implied premised The doctrine of bias is prepared to every precaution pre- take largely understanding on the that certain “[hjuman influence,” clude such great circumstances create too a risk of self-perception regarding one’s own mo- juror’s affecting decisionmaking process, tives for particular actions in difficult cir- not, juror consciously, fully even if the is faulty cumstances is too upon, be relied impact. Supreme aware of the Court even if the individual reporting telling is why focused on this rationale in explaining truth perceives as he it.” United implied traditionally disqualified bias has Shwayder, States v. employment had individuals who relation- (9th Cir.2002). Floyd own depo- Hilliard’s ships parties with the service: sition attests to the wisdom of applying a prejudice Bias or is such an elusive con- jurors: similar rule to In explaining why dition of the mind that it is most diffi- it,” responded only he “I doubt rather than cult, impossible, always if not recog- definitively, more question to a voir dire existence, might nize and it its exist about whether it would be difficult him (on the mind one account of his rela- impartial juror, to be an “you he noted can parties) tions with one of the who was never be sure your what’s back quite bias, positive he had no mind.” perfectly that he was said able to decide wholly question by any- uninfluenced Accordingly, the implied bias doctrine

thing the evidence. but The law there- applies juror circumstances where “in- wisely says regard fore most that with troduces ... unpredictable [an] factor into may to some of the relations which exist room” or “introduces destructive juror and one of par- between uncertainties into the [factfinding] pro- ties, implied, bias evidence of its Dyer, cess.” 982-83. In such given. actual existence need not be cases, we do not consider the actual bias States, question of juror] “whether [the v. United was dis- Crawford 196, (1909); posed to cast a against L.Ed. vote [the S.Ct. see defen- Id. at 981. It Phillips, dant].” also Smith v. 221- would not matter if (1982) juror is found to L.Ed.2d 78 have no actual bias (O’Connor, J., against defendant, concurring) (“Determining because his “sub- whether a or stantial prejudged biased has emotional involvement” with some difficult, partly aspect case is because the of the case too great creates a risk concealing have an interest in altering jury’s his own of deliberations despite is, "implied 11. I use the bias” prejudice nomenclature be- bias”—that pre- conscious applicable cause it judgment is the term used in the a matter of law from certain —as note, however, below, case law. I explain the term facts. As I the doctrine actual- misleadingly suggests ly somewhat that the doc- focuses on a different kind of effect on the implication trine process. rests on the of "actual deliberative

807 did) (or an jurors who have excess disqualify that it will conviction juror’s (holding being influenced in their probability F.2d 71 Allsup, 566 not. See tell to two bank implied applied by bias an extraneous consider- deliberations concerning robbery ation, in a trial good ers their faith belief that despite they the bank for which another branch of It is not directed they doing can avoid so. Wood, worked); States v. see also United jurors uncovering hiding their primarily 177, 123, 134, L.Ed. 78 57 S.Ct. bias, although in some cases of conscious (1936) “a (describing implied bias as bias so.12 implied bias that be juror prospective in law to attributable “general identified certain fact We have Judge As partiality”). of actual regardless might presumed bias be situations where on behalf of an cogently observed Kozinski Ass’n, Coughlin v. Tailhook implied.” or en banc court: (9th Cir.1997). 112 F.3d One course, a witness or juror a could be Of juror situations is “where or his those crime, perhaps a victim of the even in- personally relatives have been close lawyers of the or relative of one involving in a a similar volved situation perfectly fair and judge, and still be Tinsley, fact 895 F.2d at 528 pattern.” quite be trou- objective. Yet we would added). however, inquiry, (emphasis Our jurors if of the turned out to bled one specifically must be tailored to facts because it is prosecutor’s brother bias, alleged implied to create because we an will unlikely that individual highly formulating catego- “hesitate before must objective impartial and when remain jurors relationships which bar ries of a stake in the out- blood relative has Id. at 527. serving.” juror swears putative come. Even if the conducting specifically this tailored his and down that it will not affect up analysis, we must determine the effect on conclusively that judgment, presume we person position in the average “an kinship at the he will not leave his controversy,” implied “the this factor in door. The effect of room essentially objective predict: Would standard is impossible would be bias Gonzalez, juror yield sympathies, to his v. F.3d one.” United States Cir.2000) (9th way? the other fight (emphases them and lean 1112-13 know, permitting omitted) way There is no but v. Cerra- (quoting United States (10th introduce to serve would such 1260-61 to-Reyes, 176 F.3d influ- jury room an extraneous Cir.1999)).13 into the So, evaluating whether the materially color the de- ence could applies, disregard we implied bias doctrine liberations. that he was not affected juror’s claims at 1113. words, to the case. Id. his connection In other Dyer, 151 F.3d at 982. underpinning of the do so because an principally exists We implied bias doctrine Circuit’s decision jurors In addition to Tenth may be who do have 12. There also holding Cerrato-Reyes, upon which our thoughts during deliberations reflect relies, three other circuits have Gonzalez specified gives relationship the case that to the facts of analysis implied bias is con- bias, memory implied suppress the but rise objective of the fact with the effect cerned process sufficiently of their actual deliberative person.” “average Johnson v. on an situation that, trial, they up after the swear and down— Cir.2005), Luoma, cert. was no bias and believe—that there actual - -, denied, implied bias doctrine ferrets whatever. The Torres, (2006); United States L.Ed.2d 54 phe- psychological affected out Person, Cir.1997); (2d as well. nomenon F.2d at 664. recognition doctrine is the implied bias the trial that link between the facts juror will often be unable to developed during see Fields’s trial and those the effects of the connection. of against himself the crime his wife were so close observed, juror] may Dyer “[a As declare that it could be traumatic for his spouse to notwithstanding prejudices these he is attend trial. Floyd As Hilliard was far evidence, to the determined to listen and from during indifferent trial Fields’s to the it; governed by but the law will wife, similarities with against the crime his at (quoting trust him.” 151 F.3d it would have been an equally “natural Burr, 25 F. Cas. response” United States for the similarities to affect his (No. (C.C.D.Va.1807) 14,692g) (Marshall, final process, deliberative without him be- J.)) (internal omitted). quotation marks ing quite aware of impact. Allsup, Cf. trust, more, I emphasize This lack of once 566 F.2d at 71-72 (observing implied bias presumption is not an unrebuttable of dis in part juror arose because the had a honesty good but, lack of of apprehension “reasonable of violence” —or faith — instead, practical recognition a of the com from those who committed the crime on trial). processes. human mental plexities of engaging objective in inquiry short,

After permitting juror average in by precedents, our I can only Floyd dictated very position Hilliard’s unusual process conclude the deliberative is serve as a “would introduce into the likely average person to be affected for an jury room an extraneous influence that (1) who the safety materially has both a could color the deliberations. feared for spouse previously by quite victimized a in question The lacking would be similar, violent, highly terribly which, upsetting quality of along indifference by perpetrator crime committed impartiality, still at is the hallmark of an unbiased (2) large, juror.” been confronted with Dyer, his 151 F.3d at 982. Accord spouse’s repeated speculations about a link ingly, Fields’s right constitutional to a fair rapist between the defendant her ev- trial a panel “impartial and indiffer trial, ery day including requests to ent” by Floyd was violated Hilli light trial in speculation. presence attend the such ard’s in deliberations. See Mor average in person gan, 727, 112 such situation 504 U.S. at undoubtedly will feel “substantial emotion- close, emotionally Given these charged, al charged involvement” with the crimes ongoing links between Fields’s trial defendant, against which we have not- rape and the of Diane in Hilliard the same implied ed Tinsley, indicia of bias. area couple years rapist earlier (quoting 895 F.2d at 527 Allsup, 566 F.2d large, majority’s who was still at obser- 71). at “[b]eing vation that the spouse rape of a Indeed, not, there is direct evidence that victim is itself, such an Floyd Hilliard’s emotional involvement did ‘extreme’ or ‘extraordinary’ situation that thought process influence his to some it automatically disqualify de- should one from gree during Floyd the trial: serving Hilliard stat- on a in a case that involves during deposition, “only ed his 2003 rape” quite point. Maj. op. beside the added). a natural for him response” recognize 774 (emphasis Our case law indi- during the course of the trial cates that inquire we should not such testimony “sounds like what happened general level about the effect of a relation- wife,” my “trigger and the did a mem- ship with the trial. Tinsley, See ory ... my wife had a similar thing.” at 527. That applies spades admonition Floyd For, And Hilliard was concerned case. although majority this law,” “[gjiven a matter of Hilliard’s now as and minimize segregate out tries to during struggle response Hilliards’ on voir dire revealed of the honest impact Hilliard could relationship, trial over whether Diane but disqualifying a potentially attend, struggle is critical in fact that one, extraordinary not an extreme or in this bias issue assessing implied evidentiary hearing of the the results daily discussions between case.14 The Maj. op. no actual bias.” which disclosed plainly his wife had Floyd Hilliard and added). But neither (emphasis at 775 their own emotional content response nor his Floyd Hilliard’s honest daily Floyd Hilliard on a brought back to dispositive lack of actual bias answer impact of the connec- the emotional basis question this case’s implied bias —whether at proved the brutal facts tion between extraordinary an situation to present facts No attack on his wife. trial and the brutal applies. bias implied which concerning I am aware other case which rejecting implied 1. In Fields’s bias arising from similarities be- implied bias claim, majority stresses district being tried and the ex- the offense tween finding Floyd Hilliard was not court’s has this juror’s of a close relative periences Maj. during op. voir dire. See dishonest juror could exceptional feature —that the criti (“[D]ishonesty voir dire is during him fully link behind put factor.”); (“Although we have cal id. at 773 trial, kept arising, daily, implied that bias be where recognized And, took as the deliberations home. juror per relatives of a ‘have been close trial, begin- of the not the place at the end involving sonally a situation involved mid-trial impact of the discussion ning, actual pattern,’ fact we have never similar issue, majority suppos- as the is not a side juror on ly done so when the was honest es, all-important.15 but is dire. We decline to do so here.” voir C. (citations omitted)). (1) view, my given the accusa the close similarities between nonetheless, concludes majority, The against crime against Fields and the inferring no basis for bias tions that it “see[s] maintains, parte Maj. inappropriate ex communica- majority Op. at 774- involve 14. The n.13, example, if a tions extrinsic influence—for of the discus- consideration relationship devel- during family were to and his wife or business sions between Hilliard juror prosecutor or implied inquiry op and the bias between trial would transform relationship begun. But the objective analysis after the trial had an of the defendant parte subjective involves ex juror into a fact that a circumstance also between a and the trial holding analysis prevent a not so. Our is still does not one. This is communication objectively "extraordinary” implied on observable facts where an rela- based bias possible juror as a matter of tionship make it to infer bias and the case arises between So, regard any example, who begins. reasonable if only law the trial after himself in the same circumstances. finds trial a were after voir dire but Here, being the mid- those circumstances include of a crime similar to the one the victim tried, Hilliard and his interactions between appropriate inquiry would still be wife. implied an event would be bias. Such trial, involving entirely to the no collateral it nor of the facts before one connected to majority suggests implied bias that an average per- jury, yet an could influence analysis of cir- does not allow consideration Moreover, dire, my analysis impartiality. and that son’s cumstances that arose after voir existing case law analyzed simply application can such circumstances implied facts in this parte bias to unusual or “ex communi- "extrinsic influence" case, True, subject to the con- Maj. Op. and not new rule at 775 n.14. cations." See suggests. Teague majority as the many after voir dire straints of circumstances that arise Maj. implied Op. at 775 n.14. relevant to bias will also and that are (2) O’Connor, JJ., Diane Hilliard combined with concurring) (“[Rjegardless strong, fully juror’s understandable emotional re- answer is honest or (3) dishonest, Hilliards to the crime action of the it remains within a trial court’s Floyd fact that Hilliard had to deal option, in determining whether a was repeated suggestions during biased, with his wife’s post-trial to order a hearing at assailant, the trial that Fields her was which the movant has the opportunity to Floyd honesty or lack Hilliard’s thereof ... exceptional demonstrate circum implied analysis. matters little to the bias stances, that the facts are such that bias is inferred.”); 558, to be id. 104 S.Ct. 845 matter, a general implied As bias (Brennan, J., Marshall, J., joined by con question analytically distinct from the (“[F]or curring in judgment) a court to juror question of whether a was honest properly exists, determine whether bias during voir dire: The former determines must consider at questions: least two are juror categorically unfit to there facts in suggesting the case impartial, juror; serve as an indifferent bias should be conclusively presumed; juror the latter determines whether a and, not, if probable is it more than not shortchanged right the defendant’s juror actually that the against biased jurors’ proclivities learn through about the litigant. juror Whether the answered voir dire.16 particular question on voir dire honestly opinions by The separate Supreme dishonestly, or whether an inaccurate McDonough Court in Power Equipment, intention, answer was inadvertent or are Inc. v. Greenwood establish this distinc simply factors to be considered in this Focusing tion. on the harm that the ap (em latter determination actual bias.” pellant alleged arose “because counsel added)). phasis objec lacked an item of information which tively juror interpretation he should have from a This of McDonough obtained has examination,” principal adopted by on voir dire been four other circuits. See Thomas, opinion appellant held that an “must first Gonzales v. 99 F.3d 985-86 (10th Cir.1996) juror demonstrate that a failed to answer (holding a defendant who ” honestly a question juror material on voir dire dishonestly fails to show a answered dire, receive a new trial on that basis. Mc a question during voir pursuant 555-56, Donough, 464 McDonough’s U.S. at principal opinion, still has Justices, however, 845. Five made clear “the normal avenue-of relief available to a juror that a substantively party could still be who asserting that he did not have biased, service, and unsuitable for the benefit of an impartial jury,” including regardless of whether his or her lies un implied the use of bias (quoting McDon appellant’s procedural dermined the ough, voir 464 U.S. at 104 S.Ct. 845 556-57, (Blackmun, (internal dire right. J., See id. at 104 S.Ct. 845 concurring)) quo (Blackmun, J., joined by omitted)); Stevens and tation marks accord Zerka v. course, an,honest 16. Of if voir dire answer verdict is returned but fails to share this fully causes the defendant to become aware of knowledge with the court until after the ver- bias, creating implied the facts and he announced, dict is the misconduct not be request judge juror fails to that the excuse the trial.”). ground raised aas for a new Be- cause, then he cannot ask for his convic- Floyd cause Hilliard’s voir dire answers did ground. tion to on the be reversed bias not, many not—and could of the rele- Bolinger, See United States v. 837 F.2d vant facts arose after selection— (11th Cir.1988) curiam) (“Thus, (per facts, reveal all of the relevant waiver does where the defendant or defense counsel apply in this case. knows of misconduct or bias before the (5) KKK, (6th [the the sister Angeles] Cir. Green, n. 49 F.3d (6) shooting, [the died Fair, victim] who 1995); Amirault v. (7) mother, victim Cir.1992) curiam); victimas] murder (1st Can (per 1405-06 (8)[Fields’s] [rape], ex- prior Lockhart, [Fields’s] non v. (10) (9) wife, Attorney, the District Cir.1988). initially opinion majority’s running for Angeles] councilman a[ ][Los of McDon interpretation this recognizes “tough-on-crime” plat re-election on theories are three ough by explaining there (12) (11) cellmate, form, bias, [Fields’s] actu McDonough-style bias— long they .. wife . —so collaps bias, [Hilliard’s] later implied bias—but al fair. they all [were] focus had sworn singular its through these theories es truth told the Floyd Hilliard whether majority, Dyer at F.3d 985. Like Maj. at op. Compare dire. during voir these any of of presence believe the I id. at 772 at See also id. 771-75. have jury would on Fields’s individuals safeguards (noting “the existence trial. And that him of a fair deprived ” describing voir actual bias against they the case whether equally be would (emphasis safeguard” prime “[t]he dire disqualify- their during voir dire about lied added) at 527- F.2d (quoting Tinsley, 895 fully or were ing characteristic truthful. omitted)).17 28) (internal mark quotation McDonough- to a Dishonesty is central claim, relevance to an actual style and is of juror’s that a

Moreover, logic dictates lying on voir dire contention because bias a affect deter- honesty in voir dire cannot disqualifi- to avoid suggest attempt an can present to the case that his ties mination thereby act on one’s bias. to cation making him “exceptional circumstance” voir dire has little dishonesty during But Whether unfit to deliberate. categorically underly- with the concerns general do during or lies juror tells the truth a such implied bias ing the doctrine. change the likelihood not voir dire does Moreover, honesty will be uncon- dur- process Floyd Hilliard’s his deliberative that is, doubly involve- irrele- anything, affected his emotional if sciously ing voir dire Judge inquiry To because implied ment in the ease. borrow to the bias vant implied a bias analysis supporting Dyer, factors Konziski’s critical most im- perhaps the finding in this reasonable [majority’s] logic, [u]nder case— amount voir dire. No after would portant hold jurists [Fields] could —arose have uncov- could questioning if of voir dire process even accorded have been due suggested Hilliard fact that Diane com ered the a had he been convicted might that Fields during trial repeatedly individu following twelve of the prised Hilliard begged Floyd her attacker and (1) prosecu ... be the mother als: trial, her to (2)[the law allow attend tor, former prosecutor’s] accede, in (3) part Hilliard refused to Floyd Chief of Po Angeles’s] partner, [Los his wife. traumatizing (4) of fear lice, Dragon [Los the Grand bias,” unlike category which suggestion of "inferable majority’s implicit accept the I 17. absolutely disqualify "implied bias” does not implied operates to exclude a broad- bias judge to sustain a juror but allows when raised as a category of individuals er showing ac challenge without challenge during dire than for-cause voir for-cause however, note, bias). Supreme that the I appeal. tual time on See for the first when raised implied have explanations of bias ques- (suggesting follow-up Court’s Maj. op. at 773 Phillips McDonough and come in Floyd could have estab- tioning of Hilliard —in cases — juror raised for bias mandating which claim implied his excusal for bias lished Torres, appeal. cause); (noting time on 46-47 first cf. Although majority fails to fair impartial.”). Moreover, consider emotionally charged these inter- majority entirely dismisses claim of bias, implied voir dire created actions implied bias arising from facts occurring after 773-74, Maj. op. at 775-76 see (rejecting after dire voir on the basis that dis “the that developments Fields’s claims after trict court opportunity afforded Fields an Floyd dire rendered Hilliard a voir biased show Hilliard was a fair juror, because the district court found impartial juror” test for actual bias— —the Floyd Hilliard had no actual bias and did and Maj. failed to do op. “[h]e so.” speculation), not believe his wife’s such But these findings concerning Floyd Hilli from, by, can arise or be bias reinforced ard’s actual bias are irrelevant implied events that occur the course of the Gonzalez, (“[A] bias. See 214 F.3d at 1113 trial, Dretke, see Brooks v. 418 F.3d will, objective court where re facts (5th Cir.2005) (finding implied 434-35 quire bias, determination such hold when a bias arrested during must be recused even where trial); Godinez, Hunley v. (or juror affirmatively asserts even (7th Cir.1992) (holding that implied believes) that he or she can and will be arose when bias were robbed during (“[A impartial.”); Dyer, at deliberations, noting juror’s that a ex- juror] may declare that notwithstanding to the posure factor biasing occurs after [implied] prejudices these he is determined “may dire present voir an even more com- evidence, to listen to the governed reason for pelling applying presump- it; but the law will not trust him.” bias”). tion of Burr, 50) (internal (quoting F. Cas. at short, Floyd honesty in Hilliard’s voir omitted)). quotation majority’s marks The entirely point apply- dire besides the attempt step to side the true issue in this ing implied unique bias to the doctrine case change my does nothing determi circumstances before us. presents nation this case an “excep tional circumstance” in implied which

2. Based on the bias district court’s finding exists. Floyd fact, Hilliard was biased and our deferential of standard review in

reviewing findings, such the majority

quickly many dismisses Fields’s actual Because of the similarities be- bias Maj. op. claim. at I agree rape tween the of Diane Hilliard —a crime district court’s dictate findings such re- that greatly affected Floyd both Hilliard That should sult. conclusion end the dis- and his wife—and crime that Fields of Floyd cussion whether ac- Hilliard was was on trial for committing, combined with tually against Dyer, biased Fields. See Diane suggestions Hilliard’s that Fields (explaining 151 F.3d at 981 the distinction might be repeated her and her rapist re- the actual implied ques- bias and bias quests to attend the trial that raised con- tions). cerns about her well-being, emotional required objective inquiry should lead us majority, however, regularly refers to, to hold that Floyd Hilliard “introduee[d] the district finding court’s of no actual unpredictable ... [an] factor into throughout bias following nineteen room” purportedly pages implied “introduce[d] to the destructive uncer- devoted See, question. e.g., Maj. bias tainties into op. [factfinding] process.” (“Here, the evidentiary hearing Dyer, Floyd showed 151 F.3d at 982-83. no Hilliard actual effect of his experience, wife’s or of “swear and down that it up [ ] [did] conversation, their ability on Hilliard’s not affect his judgment, presume we [but] Koyle, Klundt; Belinda rold Steven [these not leave he will conclusively that Ray Main; Darnell Livingston; Id. at door.” jury room at the influences] here Miller; Virginia is at stake March; Mor- Dyer, “[m]ore David 982. As must ‘justice petitioner; rights Pederson; than the an; Morgan; Rick Faron ” justice.’ Id. appearance satisfy the Polston; Anthony Pierce; Shawn States, 348 v. United (quoting Ramage; Ramage; John Offutt Aaron L.Ed. 11, 14, Reece-Sivertson; Willis Theresa (noting the at 981 (1954)); also id. see Schriver; Ross; Rhea; William Gene biased impliedly that the possibility Smith; Budd Terry Shipley; Joe empathy harbored some have “could Staehnke; Stephens; Arnold John ” added)). (emphasis criminal defendants Waldo; Trent; Strand; Darrell Tim lacking regard- appearance Such Watson; Waudby; Ber- Dean Michael conscious claims of Floyd Hilliard’s less of Weyers; Wehri; Sam nard Samuel Floyd if in fact Hilliard even fairness —and Zimmerman, Yetley; Jimmy and all aware, not influenced was, far as he situated; similarly Robert persons giving of circumstances by the confluence Keller; Jr.; Tracy Michael A. Smith, bias. implied rise to Rang; McFar- Morgan; Craig Paul Plaintiffs-Ap- land; Lebaugh, Shawn IV. pellants, accused Stevie The State of California committing a series

Lamar Fields he should be and maintains crimes heinous INC., LAYERS, LINE NORTHERN Fields entitled The Constitution executed. Quanta corporation; Ser- Delaware such make impartial a set of to have corporation, vices, Inc., a Delaware accordance a determination Defendants-Appellees. the record Because penal statutes. state’s Fields’s doubts raises substantial No. 05-36012. jury, state by such

fate was decided Appeals, States Court United I him absent retrial. not execute Ninth Circuit. therefore dissent. Aug. 2007.

Argued and Submitted Sept. Filed Timothy Beard; Pat BADER; Mike Bradley; Blake; Alise

Biggins; Jim Clark; Chamberlain; Arthur L. Mark Cullins; Jerry Clements; Kathy Dolan; Do Emmett Robert James J. Dubbs; Dolman; Kelly L. lan; Cal Durfee; Dumond; Stephen An James Ray Jay Garrick; Espinoza; drew Hayes; Grubb; Green; Chris Frank Henderson; Lee Holl William Brad Husser; Hut ingsworth; Bruce Allan Jimison; Jimison; son; Jimmie Chris Keller; Ha- Jungert; David Jennifer notes subject everyone be 'Let 13:1-5 "Romans authorities, exists for there higher to the soft- palliation, thin Extenuation —to out— God, and those except authority varnish, from over, loop- no whitewash, gloss ening, appointed God. been have who exist hole, for allowance make authority, Therefore, he who resists excusable, inculpa- justifiable, Vindication— ble, God; they the ordinance resists blameworthy blameless, legitimate not condem- bring on themselves that resist vindicable/extenuating ... nation its sense object of extenuate proper "The good to the are terror ‘For rulers expressing word is for making excuses wish, thou Dost evil. to the work but cowardice, itself, guilt, something bad authority? then, not to fear as con- word such cruelty a neutral —not will have thou good and is 'Do what [sic] duct behavior' —circumstances minister God['s] For it praise it. attach should not meaning excuse "The what thou But dost good. if for to thee extenuate, Fowler [sic] VA word.” fear, it evil, does reason not without mild, abate, smooth, gentle, Mitigate soft, minister, — For is God's carry the sword. reduce, weaken, attenuate, lessen, allay, who him wrath on avenger execute harsh[,] less, less to be cause render or needs be you must Wherefore evil. does decrease, dimmish, quali- decrease, curtail wrath, subject, not ” narrow, limit, assuage. ty, sake.’ conscience’s but also jurors when deliberations resumed at 948; 9:30 Leavitt, a.m. July By p.m. 17th. that after- 816. The position state’s is that as of the noon, had reached a verdict. time Fields’s final, sentence became law

Notes

notes His dict. own imposing responsibility tell, commu sense own we can far as well. So as 777. None early Id. in deliberations. penalty. on the death occurred nication they similar as time applies much take could considerations Jurors these the evidence improper through bemay to sort what juror; needed to a fashion penalty the ultimate prosecutor reflect said when prejudicial important- More penalty.22 right juror. by a said so when not be

notes on White’s definitions eration I or effect injurious substantial had a the issue of sidestep here to It is error in this verdict determining the influence It is well-settled misconduct. what no influence has shown Fields case. the sentenc role in play not religion Ac to us. apparent is soever, none Angelone, v. Bennett e.g., See ing process. harmless.24 is misconduct cordingly, the Cir.1996); Coe v. 1336, 1346 F.3d (6th Cir.1998); 320, 351 Bell, Y (1st Giry, 818 States United deprived that Fields holdWe denied, Cir.1987), cert. the district therefore jury and impartial an (1987). Appeal 162, 98 L.Ed.2d af- is his conviction judgment court’s Bible, admira ing wisdom juror mis- conclude alsoWe firmed. contexts, beyond is in other it ble as during the assuming occurred conduct, when the misconduct doubt injuri- or no substantial had phase, penalty and selected written the foreman given extent, To this sentence. on the ous effect Bible, were not which quotations is reversed. judgment court’s the district a witness through into evidence introduced PART; REVERSED IN AFFIRMED cross-examination, to aid subjected to IN PART. jury deliberations. influence of a whom GOULD, Judge, guarantees Amendment’s Circuit The Sixth WARDLAW, right Circuit and the impartial McKEOWN

tions notes of, court. But we do not approve them to religious and other sources the Bible misconduct, affirmatively regard capital pun- felt supported which he Further, outside information. gathering passed were ishment. These notes lengthy quotations, written down jury. around to and discussed around, conveyed a sense of au- passed It after we reviewed and thority quite paraphrase different from an discussed the notes that unanimous from memo- quotations spoken or one line was reached. decision favor of death they ry, not least because could be consult- that, Hilliard stated “[t]he Juror im- repeatedly ed and outside White’s us, presented to and we dis- foreman written, presence. lengthy mediate cussed, information which he had tangibly quotations introduced external home, brought including excerpts God, exhortation, or the authors of It from the Bible and definitions. just juror God’s book—not White —encour- that we were after these discussions in- aged jurors disregard judge’s verdict to reach a unanimous penalty structions and vote for the death able

White’s notes punishment. by the created diminishing prejudice ly all— shorter, quotations much were informa- of extrinsic consideration jury’s quotations-and Biblical lengthy let alone case. present in this arguably tion is even no external research. reflected are Those factors statement prejudicial factor, early whether majority’s second ex- whether the ambiguously phrased; materials into introduction the Biblical otherwise ad- deliberations, information was actually traneous made the miscon- worse, cumulative of other merely engaged missible duct trial; adduced very evidence little unaffected deliberation

notes thin air: the fact White’s from concerning ex- jury all misconduct render Fields; helpful material to also contained harmless, jurors trinsic material material was fact the extrinsic rely to on the are instructed uniformly deliberations; early in the introduced proper considerations. legally facts and on jury instructed to base fact that the was only potentially law; Ultimately, fact relevant on the its determinations majority preju- its cited against factor aggravating evidence presence powerful Maj. analysis dice op. 780-81. powerful. Fields was at case. Cer- evidence in this reasons, aggravating have no exception, with one These moreover, in this are, tainly, charged case the murder case law and basis our have alleged and was extremely brutal inquiry. prejudice not to the pertinent during the course of extensive occurred “fair assurance” providing Far from evi- Based on such spree. violent crime jury miscon- the harmlessness of the about dence, jury that a could I no doubt have duct, pro- majority’s first three factors proper was the have determined death Biblical no reason to doubt vide ap- properly Fields after punishment for The ma- deliberations. material affected prescribed weighing plying California’s factor, jority’s the balance of White’s first system. notes, record: As district ignores the however, Brecht, inquiry found, “[t]he Under “all of the Biblical court references merely whether there cannot be of the ultimate imposition supported result, apart from support enough ... “did not include Biblical penalty” and error. It by the concepts phase of for- affected supporting the references so, rather, even whether the error itself (quoting Sea Seafoods, Hawk Inc. v. Alyes Kotteakos, had substantial influence.” Co., ka Pipeline 900, Serv. 206 F.3d 66 S.Ct. The manner in (9th Cir.2000))). prejudice view of This jury which the considered the extrinsic Supreme arises Court’s presump case, material in this Biblical as well as its prejudice tion of in Mattox and in Remmer nature, inherently prejudicial demon States, v. United substantially strates that the error did in (1954), 98 L.Ed. 654 when com fluence this and that Fields has municate with third parties. See United right resentenced not so Martinez, States v. influenced. The California Supreme Cir.1994) Remmer, (citing 347 U.S. at analysis hypothetical jury Court’s of how a Mattox, 450; S.Ct. 146 U.S. at responded to would have alternate defense 50).9 strategies, prejudice the basis for the anal Even without applying legal presump ysis majority opinion quotes tion, finding prejudice in cases where a length, is instructive. proved defendant has that' the re majority’s 3. Not is the Brecht ceived extrinsic information somewhat analysis applied flawed as specific this readily more than might one in other case, ignores special but nature of sensible, quite stances is both on direct involving claims misconduct. On di- 606(b) review and in habeas. Rule

Case Details

Case Name: Fields v. Brown

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Sep 10, 2007

Citation: 503 F.3d 755

Docket Number: 00-99005, 00-99006

Court Abbreviation: 9th Cir.