STEVIE LAMAR FIELDS, Petitioner-Appellant, v. JILL BROWN, Warden, of California State Prison at San Quentin, Respondent-Appellee. STEVIE LAMAR FIELDS, Petitioner-Appellee, v. JILL BROWN, Warden, of California State Prison at San Quentin, Respondent-Appellant.
No. 00-99005
No. 00-99006
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
Filed September 10, 2007
Volume 1 of 2; FOR PUBLICATION; D.C. No. CV-92-00465-DT; Appeals from the United States District Court for the Central District of California, Dickran M. Tevrizian, District Judge, Presiding; Argued and Submitted December 13, 2006—San Francisco, California
Opinion by Judge Rymer;
Partial Concurrence and Partial Dissent by Judge Gould;
Dissent by Judge Berzon
David S. Olson, Kulik, Gottesman, Mouton & Siegel, Sherman Oaks, California, for the petitioner-appellant/cross-appellee.
Bill Lockyer, Attorney General; Robert R. Anderson, Chief Assistant Attorney General; Pamela C. Hamanaka, Senior Assistant Attorney General; Kristofer Jorstad, Deputy Attorney General; and Keith H. Borjon, Supervising Deputy Attorney General, Los Angeles, California, for the respondent-appellee/cross-appellant.
OPINION
RYMER, Circuit Judge, with whom Chief Judge Schroeder and Judges Kozinski, O‘Scannlain, Silverman, Tallman, Clifton, Callahan, and Bea join, and with whom Judges McKeown, Wardlaw, and Gould join in Parts I-III.
Stevie Lamar Fields, a California state prisoner, was convicted in 1979 for the robbery and murder of Rosemary Cobbs, a student librarian at the University of Southern California; the robbery of Clarence Gessendaner at gunpoint; the kidnaping for robbery, robbery, rape, forced oral copulation, and assault with a deadly weapon on Gwendolyn Barnett; the kidnaping for robbery and forced oral copulation of Cynthia Smith; and the kidnaping, robbery, rape, and forced oral copulation of Colleen Coates, also a young student at USC. He was sentenced to death. Both the convictions and sentence were upheld by the courts of California.
On the federal side, the district court found no constitutional error in Fields‘s conviction, but granted a writ of habeas corpus on Fields‘s claim that the jury considered extrinsic evidence during the penalty phase. Rehearing cross-
We conclude that the questioned juror‘s presence on the jury did not undermine its impartiality, so we affirm denial of the writ as to the conviction. As we see no prejudicial constitutional error at the penalty phase, we reverse this part of the district court‘s judgment. The effect is to deny habeas relief, thereby leaving Fields‘s convictions and sentence in place.
I
Fields was paroled from prison on September 13, 1978, after serving a sentence for manslaughter for bludgeoning Albert Allen to death with a bar-bell. Fourteen days later, he went on a three-week, “one-man crime wave.” People v. Fields, 35 Cal. 3d 329, 336 (1983) (so describing Fields‘s spree).1
On September 27, 1978, Fields‘s sister Gail saw him with Rosemary Cobbs, a 26-year-old woman who worked as a student librarian at USC, at the Fields residence. When Gail went into Fields‘s bedroom the next morning, Rosemary was naked on the bed and Fields was standing by the door. Fields handed Gail a check signed by Cobbs for $185 but, after looking at her checkbook, he called Rosemary a “bitch” and told her to write another check for $222. Fields then told Rosemary that he would “bump her off” because “she run a game on him”
On October 2, 1978, Clarence Gessendaner parked his Pontiac Trans Am outside a drug store. Armed with a gun, Fields approached him with another man and demanded his car keys. Fields also asked for money. Victims of subsequent crimes all saw Fields driving Gessendaner‘s Trans Am.
These included Gwendolyn Barnett and Cynthia Smith, both prostitutes. On the morning of October 5, Fields and a 17-year-old friend, William Blackwell, who had a gun, ordered the two women into the Trans Am. Fields drove to an
Within a few hours Fields and Blackwell approached Colleen Coates, an 18-year-old student, in a restaurant parking lot, ordered her at gunpoint into the Trans Am, and drove back to the Fields house. Fields ordered her into his bedroom, took about $12, and instructed Colleen to remove her clothes. He struck her for not doing so fast enough. He directed her to perform oral sex on him and to submit to intercourse. Fields demanded more money; Colleen said she could withdraw $2000 from a savings account, so she tore out a Crocker Bank page from the telephone book, and went with Fields to the local branch. However, they returned to the Fields residence without withdrawing the money because Fields thought there were too many people around. Fields told Colleen he would have to kill her because she had too many counts on him; Colleen begged him not to. She tried to escape by throw-
Fields was convicted of the robbery-murder of Cobbs, with the special circumstance of willful, deliberate, and premeditated murder during the commission of a robbery; the robbery of Gessendaner; the kidnaping for robbery and forced oral copulation of Smith; the kidnaping for robbery and robbery of Barnett, as well as her rape, forcible oral copulation, and assault with a deadly weapon; and the kidnaping, robbery, forcible oral copulation, and rape of Coates. In a separate phase, the jury determined that Fields was sane. At the penalty phase, the parties stipulated that all evidence heard in the guilt and sanity phases would carry forward and that Fields had been convicted in 1976 of the voluntary manslaughter of Albert Allen. The jury fixed the punishment at death under the 1977 California death penalty law. After independently reviewing the record, the trial court denied Fields‘s motion for new trial and for modification of the verdict.
The California Supreme Court affirmed Fields‘s conviction and sentence on December 29, 1983. 35 Cal. 3d at 336. Fields filed a petition for habeas corpus in the state supreme court claiming ineffective assistance of his trial counsel, Carl Jones, which was denied after appointment of a referee who conducted an evidentiary hearing. In re Fields, 51 Cal. 3d 1063 (1991).
Fields brought his first federal habeas corpus petition on May 25, 1993. The district court stayed proceedings to allow an opportunity to pursue unexhausted claims in state court. Fields filed a second petition for collateral review in the California Supreme Court, which was denied on October 14,
Fields and the state both appealed. As Fields‘s petition was filed before April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), AEDPA does not apply to the merits of the appeal.2 The panel affirmed on all guilt phase claims except for a claim of juror bias (and the related claim of ineffective assistance of counsel), on which it remanded for an evidentiary hearing. Fields v. Woodford (Fields II), 309 F.3d 1095, 1106 (9th Cir.), amended by 315 F.3d 1062 (9th Cir. 2002). Following a hearing, the district court found that Juror Hilliard was not dishonest during voir dire, that he was not actually biased, and that application of the implied bias doctrine in the absence of dishonesty would be a new rule barred by Teague v. Lane, 489 U.S. 288 (1989). It also found that the Hilliards had no discussions during trial about the trial that affected juror Hilliard‘s ability to be fair and impartial.
Fields renewed appeal on these issues. The panel affirmed denial of the writ on his claim of juror impartiality. Fields v. Woodford (Fields III), 431 F.3d 1186 (9th Cir. 2005). Having
II
A
When responding on voir dire to one of the trial court‘s posted questions4 — whether the prospective juror had ever been a crime victim or witness, arrested or charged with a crime, or involved in criminal charges or litigation — Floyd Hilliard stated that his “wife was assaulted and beaten, robbed, two years ago Christmas” in Los Angeles. The judge observed that some of the charges involved in the Fields case were robberies and asked whether Hilliard thought “it is going to make it difficult for you to be a fair, impartial juror in the case now pending before this court as a result of the experience your wife went through?” Hilliard replied: “I doubt it. I think I‘d base it strictly on the charges and the evidence that‘s presented.” When the judge asked: “And you would accept
The present dispute centers around a declaration from Diane Hilliard, Floyd Hilliard‘s wife, that Fields obtained in 1993. It indicated that she was confronted at gunpoint by a young African-American male in his early twenties, bound, blindfolded, driven to a secluded area, beaten, raped, and robbed. The attacker told Hilliard‘s wife that he knew where she lived and would be back to “finish you off.” He was never apprehended. These events were traumatic and had a radical effect on the Hilliards’ lives; they changed the locks on their house and Hilliard stood guard with a gun for several weeks. Diane Hilliard‘s declaration also indicated that during trial she began to suspect that Fields might be the person who accosted her. She asked her husband if she could go to the courtroom, but he said no; Mrs. Hilliard thought he was afraid that if they knew about her case, Fields would get off. Juror Hilliard‘s 1995 declaration, which he reaffirmed in 1999, averred that he never confused the events that occurred to his wife with the facts presented in the Fields case, he did not urge other jurors to follow any course of action because of his wife‘s experience, and he was one of the jurors who initially defended Fields in deliberations. Another juror‘s 1995 declaration stated that Hilliard often talked about his wife, but did not say what about; a second juror declared that he was aware that Hilliard‘s wife had been raped.
The panel was reluctant to resolve Fields‘s claim of juror bias on this record, and therefore remanded for an evidentiary hearing. Fields II, 309 F.3d at 1105-06. At the subsequent evidentiary hearing, the district court received testimony taken in March 2003 by videotape of Floyd Hilliard, Diane Hilliard, and the two other jurors whose 1993 declarations pertained to Hilliard. The district court found Hilliard credible. In testimony the court credited, Hilliard explained that during voir
Diane Hilliard testified that she knew little about Fields‘s case because her husband did not discuss it. She knew only that the case involved a young African-American man who had abducted and shot someone; she did not know if the case involved rape charges or if Fields was in his twenties. Diane did want to go to court to see if Fields was the man who had accosted her, but her husband refused to let her go. This did not upset her. She said her 1993 declaration (prepared by Fields‘s investigator) was untrue when it stated that she believed her husband was afraid that if they knew about her case, Fields would get off. Hilliard told her he advised the court about her case during jury selection.
Juror Henry testified that Hilliard talked about his wife being the first black woman fire fighter, but nothing else. Juror Warner testified that he became aware that Hilliard‘s wife had been robbed, beaten, and raped during voir dire, but otherwise Hilliard didn‘t talk about it.
Considering the entire record, including the 1993 and 1995 declarations, the district court found that juror Hilliard did not intend to mislead the trial court when he stated that his wife was “assaulted and beaten, robbed, two years ago Christmas.” The court also found that Hilliard and his wife did not have any discussions during the trial about its subject matter that affected Hilliard‘s ability to be fair and impartial.
B
Fields‘s claim of juror bias puts three theories on the table: so-called McDonough-style bias,5 which turns on the truthful-
[1] The Sixth Amendment guarantees a criminal defendant a fair trial. “One touchstone of a fair trial is an impartial trier of fact — ‘a jury capable and willing to decide the case solely on the evidence before it.‘” McDonough, 464 U.S. at 554 (quoting Smith v. Phillips, 455 U.S. 209, 217 (1982)). As the Supreme Court recognized in McDonough, “[v]oir dire examination serves to protect that right by exposing possible biases, both known and unknown, on the part of potential jurors.” Id. at 554.
[2] McDonough was a personal injury action in which a prospective juror failed to respond affirmatively to a question on voir dire seeking to elicit information about previous injuries to members of the juror‘s immediate family that resulted in disability or prolonged pain. In fact, the juror‘s son had broken his leg as a result of an exploding tire, but the juror
voir dire, a party must demonstrate that the juror failed to answer honestly and that a correct response would have provided a basis for a challenge for cause).
To invalidate the result of a three-week trial because of a juror‘s mistaken, though honest response to a question, is to insist on something closer to perfection than our judicial system can be expected to give. A trial represents an important investment of private and social resources, and it ill serves the important end of finality to wipe the slate clean simply to recreate the peremptory challenge process because counsel lacked an item of information which objectively he should have obtained from a juror on voir dire examination.
Id. at 555. Accordingly, the Court held that “to obtain a new trial in such a situation, a party must first demonstrate that a juror failed to answer honestly a material question on voir dire, and then further show that a correct response would have provided a valid basis for a challenge for cause.” Id. at 556.
[3] After careful consideration of the entire record, the district court found that Hilliard did not respond dishonestly on voir dire and did not intend to mislead the trial court, or hide the facts of the attack on his wife, by using the word “assault” instead of “rape” and “kidnap” to describe what happened. Whether a juror is dishonest is a question of fact, Dyer v. Calderon, 151 F.3d 970, 973 (9th Cir. 1998) (en banc), and we are not firmly convinced that the district court‘s findings are wrong. See Riley v. Payne, 352 F.3d 1313, 1317 (9th Cir. 2003) (noting that a district court‘s factual findings are reviewed for clear error). Hilliard testified that he thought everyone would understand that using “assault” in the context of a beating and robbery of his wife would encompass a sexual assault. To the extent that he may have been mistaken in assuming this, it was an honest mistake for a layperson to make. See Dennis v. Mitchell, 354 F.3d 511, 521 (6th Cir.
[4] Likewise, we see no basis upon which to invalidate Fields‘s conviction on account of actual bias. We have defined actual bias as, in essence, “‘bias in fact’ — the existence of a state of mind that leads to an inference that the person will not act with entire impartiality.” United States v. Gonzalez, 214 F.3d 1109, 1112 (9th Cir. 2000) (quoting United States v. Torres, 128 F.3d 38, 43 (2d Cir. 1997) (internal quotation marks omitted). Actual bias is typically found when a prospective juror states that he can not be impartial, or expresses a view adverse to one party‘s position and responds equivocally as to whether he could be fair and impartial despite that view. The determination of whether a juror is actually biased is a question of fact, Dyer, 151 F.3d at 973, that we review for “manifest error” or abuse of discretion, Gonzalez, 214 F.3d at 1112. We are satisfied that there was no manifest error in the district court‘s finding that Hilliard was not actually biased. He put aside what happened to his wife and did not confuse those events with what he had to decide about Fields. He truthfully represented that he was
[5] This leaves Fields‘s argument that Hilliard was, nevertheless, impliedly or presumptively biased. As the panel recognized in remanding for development of a factual record, this is the most serious of Fields‘s challenges. The similarity of Diane Hilliard‘s experience to the charges against Fields clearly implicates our law on implied bias. Although the Supreme Court has not explicitly adopted (or rejected) the doctrine of implied bias, both concurring opinions in McDonough seem to embrace it, see McDonough, 464 U.S. at 556-57 (Blackmun, Stevens, and O‘Connor, JJ., concurring);6 id. at 558 (Brennan and Marshall, JJ., concurring in the judgment),7
In Dyer, the juror on voir dire in a murder prosecution answered “no” to queries about whether she or any of her relatives had ever been the victim of any type of crime, and whether she or any of her relatives had ever been accused of any offense other than traffic cases. 151 F.3d at 972. The truth was that the juror‘s brother had been shot and killed six years earlier, and her husband was in jail. Id. at 972-73. We concluded that the juror plainly lied, and that her lies gave rise
Like Eubanks, Gonzalez was a drug conspiracy case where prospective jurors were asked whether they or anyone close to them had any experience with illegal drugs. 214 F.3d at 1110. A juror answered affirmatively that her ex-husband had used and dealt cocaine, which was one of the reasons for their divorce four years previously, but the juror responded equivocally when asked three times whether she could put her personal experience aside and serve impartially. Id. at 1110-11. We held that denial of a cause challenge on either an express or implied bias theory required reversal given the juror‘s responses to the court‘s questions and the similarity between her experience and the defendant‘s alleged conduct. Id. at 1114.
[6] In sum, we have implied bias in those extreme situations “where the relationship between a prospective juror and some aspect of the litigation is such that it is highly unlikely that the average person could remain impartial in his deliberations under the circumstances,” id. at 1112 (quoting Tinsley, 895 F.2d at 527) (internal quotation marks omitted), or where repeated lies in voir dire imply that the juror concealed material facts in order to secure a spot on the particular jury, Dyer, 151 F.3d at 982. The standard is “essentially an objective one,” Gonzalez, 214 F.3d at 1113, under which a juror may be presumed biased even though the juror himself believes or states that he can be impartial. Dyer, 151 F.3d at 982. Review is de novo, because implied bias is a mixed question of law and fact. Gonzalez, 214 F.3d at 1112.
The state disagrees that the relationship is of the sort that we have previously found so extreme as to presume bias, which leads it also to invoke the Teague rule against retroactive application by a federal court of a new rule of constitutional law.8 We must decide whether this is so before reaching the merits of Fields‘s claim. Caspari v. Bohlen, 510 U.S. 383, 389 (1994) (instructing that if a state argues that the district court granted a habeas petition on the basis of a new rule of constitutional law that is Teague-barred, a court must address the Teague issue first); Leavitt v. Arave, 383 F.3d 809, 816 (9th Cir. 2004) (per curiam) (same).
In the state‘s view, a reasonable interpretation of precedent from when Fields‘s conviction became final9 would not allow
Fields counters that Hilliard‘s bias may be implied on account of more than just the similarity of the crimes against his wife. For example, extraneous matters such as the conversations that Hilliard had with his wife during trial are not Teague-barred because extrinsic information has long implicated the constitutional right to a fair trial. See, e.g., Remmer v. United States, 347 U.S. 227, 229 (1954). He also argues that implied bias based on deficient responses to voir dire questions has been firmly established at least since McDonough came down on January 18, 1984. In addition, Fields points out that the concurring opinions in McDonough, and our opinion in Allsup, embraced a standard for implied bias that does not depend solely on dishonesty. See McDonough, 464 U.S. at 556-57 (Blackmun, Stevens and O‘Connor, JJ., concurring); id. at 558 (Brennan and Marshall, JJ., concurring in the judgment); Allsup, 566 F.2d at 71-72 (finding implied bias even though juror disclosed she worked at a branch of the bank that was robbed).
We agree with Fields that the implied bias doctrine existed before 1984; we so held in Dyer. 151 F.3d at 984-85. But this
On the one hand, the Supreme Court has never held that a juror was impliedly biased in the absence of juror dishonesty. In Dennis v. United States, 339 U.S. 162 (1950), the court considered the problem, but refused to find that government employees were impliedly biased and thus automatically disqualified from serving on a jury where the government is a party. Id. at 172. Moreover, Justice O‘Connor expressed the view that implied bias should only be presumed in “extreme” or “extraordinary” cases. Phillips, 455 U.S. at 222-23 & n.* (O‘Connor, J., concurring); see also Tinsley, 895 F.2d at 527 (quoting same). Examples she gave of what might count as an “extreme” or “extraordinary” case were “a revelation that the juror is an actual employee of the prosecuting agency, that the juror is a close relative of one of the participants in the trial or the criminal transaction, or that the juror was a witness or somehow involved in the criminal transaction.” Phillips, 455 U.S. at 222 (O‘Connor, J., concurring). McDonough, of course, held that a party must demonstrate that a juror failed honestly to answer a voir dire question that is material to impartiality before a trial result could be invalidated. Id. at 556. However, the concurring opinions indicated that they did not understand the opinion to foreclose implied bias in the absence of juror dishonesty on voir dire. Id. at 556-57 (Blackmun, Stevens, and O‘Connor, JJ., concurring); id. at 558-59 (Brennan and Marshall, JJ., concurring in the judgment). In light of these cases we have previously observed that it is an unresolved question whether dishonesty is a necessary predicate to a finding of juror bias. See Dyer, 151 F.3d at 979 n.12 (noting it was unnecessary to decide the issue because the juror there had lied during voir dire); see also Fields II, 309 F.3d at 1105 (“Beyond what these cases indicate, it is an open question whether dishonesty is required before bias may be found.“).
The state also argues for the narrower proposition that no precedent at the time dictated that an honest juror is impliedly biased simply by virtue of his wife‘s victim status. While we agree that this is so, we do not require the existence of a case for Teague purposes “involving identical facts, circumstances, and legal issues.” Keating v. Hood, 191 F.3d 1053, 1061 n.11 (9th Cir. 1999), overruled on other grounds by Payton v. Woodford, 346 F.3d 1204, 1217 n.18 (9th Cir. 2003) (en banc).
[7] Teague aside, it is well accepted that bias may be presumed only in “extreme” or “extraordinary” cases. We said in Tinsley, and reiterate now, that “[p]rudence dictates that courts answering this question should hesitate before formulating categories of relationships which bar jurors from serving in certain types of trials.” Id. at 527.
[8] “Instead of formal categorization, the Supreme Court has emphasized the existence of safeguards against actual bias.” Id. at 527-28. The prime safeguard is voir dire. “In most situations, voir dire, ‘the method we have relied on since the beginning,’ should suffice to identify juror bias.” Id. at 528 (quoting Patton v. Yount, 467 U.S. 1025, 1038 (1984)).
One touchstone of a fair trial is an impartial trier of fact — “a jury capable and willing to decide the case solely on the evidence before it.” Voir dire examination serves to protect that right by exposing possible biases, both known and unknown, on the part of potential jurors. Demonstrated bias in the responses to questions on voir dire may result in a juror being excused for cause; hints of bias not sufficient to warrant challenge for cause may assist parties in exercising their peremptory challenges. The necessity of truthful answers by prospective jurors if this process is to serve its purpose is obvious.
464 U.S. at 554 (citation omitted) (quoting Phillips, 455 U.S. at 217).10 Accordingly, when the issue of bias arises after trial
(as it did in McDonough and Tinsley) or, as here, on collateral review of a conviction in state court, dishonesty in voir dire is the critical factor. As McDonough explains, “it ill serves the important end of finality to wipe the slate clean” when the potentially disqualifying relationship is disclosed on voir dire examination. 464 U.S. at 555.
[9] Hilliard honestly disclosed that his wife had been a victim of crimes that were quite similar to some of the crimes of which Fields was accused. Although we found implied bias in Eubanks based on similarities between the experience of a juror‘s relatives and the events giving rise to the trial, the juror had not been honest in voir dire about his sons’ involvement with heroin. Cf. Green v. White, 232 F.3d 671, 676-78 (9th Cir. 2000) (presuming bias based on pattern of lies); Dyer, 151 F.3d at 983 (presuming bias from juror‘s lies); Gonzalez, 214 F.3d at 1114 (holding that cause challenge should have been granted when juror equivocated on voir dire about ability to set aside emotional experience).
The implied bias that we found in Allsup was based on the jurors’ direct relationship with the victim and their own vulnerability to the same type of conduct for which the accused bank robbers were on trial. Hilliard had no personal connection of this sort. He was not related to a participant, victim, or witness. The similarity of experiences was on account of his wife‘s experience, not his own. Although we have recognized that bias may be implied where close relatives of a juror “have been personally involved in a situation involving a similar fact pattern,” Tinsley, 895 F.2d at 528; Eubanks, 591 F.2d at 517; Dyer, 151 F.3d at 982, we have never done so when the juror was honest on voir dire.
We decline to do so here. Hilliard‘s honest disclosure on voir dire about what happened to his wife was more than sufficient for follow-up that would have fleshed out whether the relationship between his wife‘s experience and some of the crimes charged was such that “it is highly unlikely that the average person could remain impartial in his deliberations . . . .” Tinsley, 895 F.2d at 527 (quoting Person v. Miller, 854 F.2d 656, 664 (4th Cir. 1988)). Fields had a remedy at that point — a challenge for cause, which lies for implied as well as actual bias — that would have resulted in Hilliard‘s being excused, if well taken, or in a new trial (as in Allsup) if improperly denied.
To the extent that events or information bearing on Hilliard‘s honesty in voir dire or impartiality as a juror came after he was empaneled, the evidentiary hearing held by the district court afforded Fields an opportunity to show that Hilliard was not a fair and impartial juror. He failed to do so. The opportunity to show actual bias is a sufficient remedy and “‘a guarantee of a defendant‘s right to an impartial jury.‘” Phillips, 455 U.S. at 216 (quoting Dennis, 339 U.S. at 171-72); see also id. at 215 (observing that “[t]his Court has long held that the remedy for allegations of juror partiality is a hearing in which the defendant has the opportunity to prove actual bias“); Williams v. Taylor, 529 U.S. 420, 442-44 (2000) (quoting Phillips on the point and reiterating that the defendant may establish at an evidentiary hearing that a prospective juror who arguably failed to tell the truth on voir dire was not impartial).
[10] Knowing what we now know as a result of the evidentiary hearing, we see no basis for implying bias as a matter of law solely because Hilliard was the spouse of a rape victim. As a practical matter, many prospective jurors have close family members or friends who have suffered similar encounters. It is the role of voir dire to ferret out such relationships,
C
[11] Our conclusion that Hilliard was an impartial juror remains the same whether conversations with his wife during trial are considered together with his voir dire responses, or separately from them. However, the conversations occurred after the jury was sworn and so are analytically distinct from his responses on voir dire.14 These conversations obviously
could not have been disclosed or discovered during voir dire as they took place afterwards. Nevertheless, discussions between Hilliard and his wife could bear on Hilliard‘s impartiality, or they could amount to an impermissible private communication between a juror and a third person that, under Mattox v. United States, 146 U.S. 140, 150 (1892), and Remmer v. United States, 347 U.S. 227, 229 (1954), would invalidate the verdict unless the communications were deemed harmless.
Fields argues that the fact that Hilliard knew his wife seriously entertained the notion that Fields might have been her assailant (regardless of his own views of the matter) made it impossible for him to exercise independent judgment. Thus, in Fields‘s view, the conversations gave rise to a presumption of prejudice that was not rebutted. Fields also urges that Hilliard evinced an “excess of zeal” to stay on the jury, thereby manifesting a lack of impartiality. However, these arguments fail in light of the district court‘s findings. The court found Hilliard credible, which means that he did not discuss the Fields trial with his wife beyond saying what kind of case it
Also as shown by the evidentiary hearing on remand, when Diane Hilliard asked her husband about the case, he told her he was not at liberty to discuss it. She knew only that her husband was a juror on a case involving a young, African-American male who had abducted and shot someone. She did not know if Fields‘s case involved rape charges. The district court found that Hilliard never confused the crimes against his wife with those that Fields committed, and he obeyed the trial judge‘s instruction not to discuss the case until it was over. Further, Hilliard truthfully told the judge he would decide the case on the evidence and the law given at trial, and nothing else, and absolutely did so. Finally, the district court found that the discussions did not delve deeply, if at all, into the facts of Fields‘s case and that Hilliard‘s discussions with his wife did not affect his ability to be fair and impartial.
[12] It is Hilliard‘s impartiality that matters, not his wife‘s. As found by the district court, the two had no discussions during trial about its subject matter that affected Hilliard‘s ability to be fair and impartial. Thus, the communications were harmless.
III
In a related claim, Fields alleges that his counsel was ineffective in failing to question Hilliard during voir dire about the attack on his wife or about his ability to serve impartially. To prevail under Strickland v. Washington, 466 U.S. 668 (1984), Fields must show that his “counsel‘s performance was deficient” and “that the deficient performance prejudiced the defense.” Id. at 687. As the panel observed in Fields II, “it is tough to imagine why [Fields‘s counsel] did not pursue what kind of assault Hilliard‘s wife suffered, given that the non-capital
[13] As other claims having to do with the guilt phase have been resolved and are not before us, and we now resolve the juror bias issues in favor of the state, we affirm the judgment denying habeas relief on all claims related to Fields‘s conviction.
IV
The state cross-appeals the district court‘s grant of the writ on Fields‘s claim of misconduct based on the jury‘s use of Biblical quotations and dictionary definitions in the penalty phase. It presses four reasons for error: the claim is not timely under
The penalty phase of Fields‘s trial commenced on July 16, 1979, lasted less than a day, and the jury deliberated from 2 p.m. until 4 p.m. without reaching a verdict. That evening, Rodney White, the foreperson of the jury, checked the Bible and other reference texts and made notes “for” and “against” imposition of the death penalty which he brought to the deliberations the next day.15 White also consulted a dictionary for
‘For rulers are a terror not to the good work but to the evil. Dost thou wish, then, not to fear the authority?
‘Do what is good and thou will have praise from it. For it is God[‘s] minister to thee for good. But if thou dost what is evil, fear, for not without reason does it carry the sword. For it is God‘s minister, an avenger to execute wrath on him who does evil. Wherefore you must needs be subject, not only because of the wrath, but also for conscience‘s sake.’ ”
- “Luther, Calvin, Aquinas felt this to be supportive of capital punishment” and
- “Per Paul‘s letter to Romans: State has power for two reasons — 1. Satisfy demand‘s [sic] of God‘s service [and] 2. Protect society by deterring future crime.”
The “against” side notes:
- “No real deterrent value — mostly because murderers not normal”
- “Question of ‘Just’ — There is no simple, ‘just,’ penalty”
- “Discriminatory selection”
- “Human fallibility — Perhaps wrong chap convicted.”
- “Rehabilitation”
- ” ‘Popular’ feelings”
Fields presented a number of juror declarations in support of his claim of juror misconduct. Juror testimony about consideration of extrinsic evidence may be considered by a reviewing court, but juror testimony about the subjective effect of evidence on the particular juror or about the deliberative process may not. See, e.g., Sassounian v. Roe, 230 F.3d 1097, 1108-09 (9th Cir. 2000) (relying on a long line of precedent drawing this distinction). On the state‘s motion, the district court struck the declarations to the extent that the information contained in them was inadmissible under
Mitigate — soft, smooth, gentle, mild. abate, lessen, allay, attenuate, weaken, reduce, render or cause to be less, less harsh[,] decrease, diminish, decrease, curtail quality, limit, narrow, assuage.
[14] Before turning to the merits, we must first decide whether this claim is Teague-barred. See Caspari, 510 U.S. at 389; Leavitt, 383 F.3d at 816. The state‘s position is that as of the time Fields‘s sentence became final, law binding on state courts allowed the jury to exercise “‘unbridled discretion in determining whether the death penalty should be imposed after it has found that the defendant is a member of the class made eligible for that penalty [under the state statute].‘” Tuilaepa v. California, 512 U.S. 967, 979-80 (1994) (quoting Zant v. Stephens, 462 U.S. 862, 875 (1983)). The state also points out that as of that date, it was established law that a capital jury “express[es] the conscience of the community on the ultimate question of life or death.” Witherspoon v. Illinois, 391 U.S. 510, 519 (1968). While these propositions are undoubtedly so, and there is no Supreme Court authority on Biblical references in the jury room, it is also true that as of 1984 it was well established “in capital cases that the jury should pass upon the case free from external causes tending to disturb the exercise of deliberate and unbiased judgment.” Mattox v. United States, 146 U.S. 140, 149 (1892). The district court‘s ruling cannot be Teague-barred at this level of generality.
In addition, we have been unwilling for Teague purposes to require a case “involving identical facts, circumstances, and legal issues.” Keating, 191 F.3d at 1061 n.11. The Sixth Amendment inquiry in the context of outside influence on a jury is fact-specific. Among other things, it requires a reviewing court to determine whether the particular materials that a
[15] The core principle is well-settled: evidence developed against a defendant must come from the witness stand. In Mattox, the bailiff remarked to jurors while they were deliberating that the defendant had killed someone else, and a newspaper article injurious to the defendant was brought to the jury room and read. In this context, the Court articulated the now familiar rule that “[p]rivate communications, possibly prejudicial, between jurors and third persons, or witnesses, or the officer in charge, are absolutely forbidden, and invalidate the verdict, at least unless their harmlessness is made to appear.” Mattox, 146 U.S. at 150. Remmer applied the rule to allegations of bribery. See id. at 228-30. In Turner v. Louisiana, 379 U.S. 466, 473-74 (1965), jurors had continuous and intimate contact with two key government witnesses. The Court also held in Parker v. Gladden, 385 U.S. 363, 363-64 (1966), that the defendant‘s Sixth Amendment rights were violated where the bailiff told a juror the defendant was a “wicked fellow” and that if there were anything wrong in finding the defendant guilty, the Supreme Court would fix it.
We have found improper influence in similar circumstances, for example, when a juror received a threatening telephone call at home, United States v. Armstrong, 654 F.2d
- [1] whether the prejudicial statement was ambiguously phrased;
- [2] whether the extraneous information was otherwise admissible or merely cumulative of other evidence adduced at trial; [3] whether a curative instruction was given or some other step taken to ameliorate the prejudice; [4] the trial context; and [5] whether the statement was insufficiently prejudicial given the issues and evidence in the case.
Sassounian, 230 F.3d at 1109 (alterations in original) (internal quotation marks omitted) (quoting Jeffries v. Wood, 114 F.3d 1484, 1491-92 (9th Cir. 1997)).
White‘s notes are not like these examples. They are a mix of ideas “for” and “against” capital punishment. Both the Biblical verses and the other concepts contained in the notes are notions of general currency that inform the moral judgment that capital-case jurors are called upon to make. As Justice Stevens put it, “[w]hile the question of innocence or guilt of the offense is essentially a question of fact, the choice between life imprisonment and capital punishment is both a question of underlying fact and a matter of reasoned moral judgment.” Sawyer v. Whitley, 505 U.S. 333, 370 (1992) (Stevens, J., concurring in the judgment). White‘s “for” notes all exposit well-known themes. So do his “against” notes. In effect he marshaled general, commonly known points in favor of the death penalty — “eye for eye,” “deterrence,” “fitting punishment to crime,” “rights of victim,” and the Bible says so — along with general, commonly known points in opposition — “no real deterrent value,” “there is no simple, ‘just,’ penalty,” “discriminatory selection,” “rehabilitation,” and “perhaps wrong chap convicted.” Fields nowhere suggests that White was not free to recite these points, including those from the Bible, or to resort to their reasoning. See McDowell v. Calderon, 107 F.3d 1351, 1367 (9th Cir. 1997) (noting that “‘[t]he type of after-acquired information that potentially taints a jury verdict should be carefully distinguished from the general knowledge, opinions, feelings and bias that every juror carries into the jury room’ “) (quoting Hard v. Burlington N. R.R. Co., 870 F.2d 1454, 1461 (9th Cir. 1989)); id. at 1462 (denying new trial where one juror used personal knowledge of x-ray interpretation to sway others because “[i]t is expected that jurors will bring their life experiences to bear on the facts of a case“); see also Raley v. Ylst, 470 F.3d 792, 803 (9th Cir. 2006) (noting that the jury‘s discussion of the practical effect of imposing a sentence of life without parole does not constitute reversible error, and holding that considering the sentences’ comparative costs doesn‘t either). It is difficult to see how sharing notes can be constitutionally infirm if sharing memory isn‘t.
Fields correctly points out that we have held it is improper and prejudicial for the prosecution to invoke God or to paraphrase a Biblical passage in closing argument in the penalty phase of a capital case. See Sandoval v. Calderon, 241 F.3d 765, 776-77 (9th Cir. 2000). However, the prosecutor is constrained in ways that a juror is not. In Sandoval, as we explained, the prosecutor‘s argument frustrated the purpose of the closing argument, which is to review the evidence presented at trial that is relevant to the jury‘s decision as defined by the instructions given by the court. Id. Also, the prosecution‘s invocation of “higher law” or extra-judicial authority violated the Eighth Amendment principle of narrowly channeled sentencing discretion. Id. Further, we noted that argument involving religious authority undercuts the jury‘s own sense of responsibility for imposing the death penalty. Id. at 777. None of these considerations applies in similar fashion to a juror; what may be improper or prejudicial when said by a prosecutor may not be so when said by a juror.
[16] That said, we do not need to decide whether there was juror misconduct because even assuming there was, we are persuaded that White‘s notes had no substantial and injurious effect or influence in determining the jury‘s verdict. Sassounian, 230 F.3d at 1108 (applying Brecht19 standard on
[17] The aggravating evidence is powerful, as all judges who have reviewed the record have remarked. In Justice Broussard‘s summary for the California Supreme Court,
[A]side from cases of multiple murder, this was one of the more aggravated cases to come before this court. Defendant had previously been convicted of manslaughter. He embarked on his “one man crime wave” immediately after being released from prison. He kidnapped the murder victim and took her to his house where witnesses saw her, naked and bound, in defendant‘s bedroom. He forced her to write a check for the balance of her bank account. He later shot and killed her, apparently because she had written a check for less than the full balance. Defendant and a companion then stole a car at gunpoint, kidnapped two prostitutes, raped them both, and severely beat one of them. They then kidnapped another woman, stole her car, and took her to defendant‘s house, where defendant raped her and attempted to get money from her bank account. Thus the jury heard evidence not only of a murder, but also of a pattern of criminal behavior which, within the short period of three weeks, included at least three kidnappings, rapes, and robberies. We recognize, as habeas corpus counsel points out, that murders with special circumstances are generally horrifying crimes, but that juries nevertheless return verdicts of life imprisonment without possibility of parole in more than half the cases. But we think that even within this limited sphere of reference, this case is among the most aggravated.
In re Fields, 51 Cal. 3d 1063, 1079-80 (1991) (internal citation omitted). Given this, we see no prejudicial constitutional error on account of the juror‘s notes that requires issuance of the writ.23
V
We hold that Fields was not deprived of an impartial jury and therefore the district court‘s judgment on his conviction is affirmed. We also conclude that juror misconduct, assuming it occurred during the penalty phase, had no substantial or injurious effect on the sentence. To this extent, the district court‘s judgment is reversed.
AFFIRMED IN PART; REVERSED IN PART.
I concur in Sections I, II, and III of Judge Rymer‘s majority opinion insofar as it rejects the bias claims urged by Fields as grounds for habeas relief from his conviction. I respectfully dissent, however, from the majority‘s analysis in Section IV of the challenged introduction by the jury foreman of written biblical quotations and notes “for” and “against” capital punishment. I disagree with the majority‘s decision not to decide if this extraordinary appeal of the jury foreman to “higher law” of the Bible constituted jury misconduct. I also disagree with the majority‘s conclusion that the use of written Bible quotations and notes in this manner during jury deliberations did not have any substantial injurious effect on the jury deliberations and death sentence.
I
It is error here to sidestep the issue of jury misconduct. It is well-settled that religion may not play a role in the sentencing process. See e.g., Bennet v. Angelone, 92 F.3d 1336, 1346 (4th Cir. 1996); Coe v. Bell, 161 F.3d 320, 351 (6th Cir. 1998); United States v. Giry, 818 F.2d 120 (1st Cir. 1987), cert. denied, 484 U.S. 855 (1987). Appealing to the wisdom of the Bible, as admirable as it is in other contexts, is beyond doubt jury misconduct when the jury is given by the foreman written and selected quotations from the Bible, which were not introduced into evidence through a witness or subjected to cross-examination, to aid in and influence jury deliberations.
The
In declining to decide if the introduction of biblical quotations and notes is juror misconduct, the majority argues that Bible verses are not similar to extrinsic materials that we and the Supreme Court have previously found prejudicial because they are “notions of general currency that inform the moral judgment” of capital-case jurors. See supra Section IV at 11983. This argument is unpersuasive.
To begin, the majority postulates that White‘s researched Bible verses and notes were “a mix of ideas ‘for’ and ‘against’ capital punishment.” See supra Section IV at 11983. One need not be a biblical scholar to see that the list provided by the foreperson was slanted by his personal judgments and inclinations, and was intended to spur deliberations towards a sentence of death rather than life imprisonment. On shear numbers alone, White‘s Bible references in favor of the death penalty had at least thirteen separate entries, with over thirty-one lines of writing and several lengthy direct quotations from the Bible, including one quotation of thirteen lines of verse.
Moreover, I think it fanciful for the majority to say that the Bible quotations are merely “notions of general currency that inform the moral judgment that capital-case jurors are called upon to make.” The majority claims that White‘s Bible quotations were all “well-known themes,” and that he “marshaled general, commonly known points in favor of the death penalty.” See supra Section IV at 11983. The majority does not say what percentage of the general public is familiar with each of these quotations, even if that were assumed to be valid. If these biblical verses are well known as “notions of general currency,” why did White have to conduct research to produce them? It is one thing to say something is common knowledge when a person recites it from memory, but it is quite a different thing altogether to argue that a Bible verse is common knowledge when a person has to research the Bible, and write down text to remember it.
Certainly, the majority is not claiming that each and every word of the entire Bible is common knowledge? In this case,
Moreover, even if these can be characterized sensibly as “notions of general currency,” then are they notions that some jurors might view as divinely commanded or inspired? If these quotes from the Bible are “notions of general currency,” then would the majority say that the same is true if the foreperson had brought in written quotations from other religious texts, whether those of Buddhism, Hinduism, or Islam, or even of other religions that command smaller groups of adherents? As Judge Wilkinson of the Fourth Circuit emphasized in his concurring opinion in Robinson v. Polk (Polk II):
Though many of its teachings are universal, the Bible nonetheless remains a sectarian text that serves as the theological foundation for certain religions and not others. If it could be brought into the jury room as a basis for discussion and debate upon the ultimate punishment the state may impose, it would be only a short while before jurors of different faiths brought their own holy texts into the conversation. The jury room is not the place to debate the respective merits of the Bible, the Koran, the Torah, or any other religious scripture that Americans revere, nor is it the proper forum for a clash between belief and non-belief. These discussions would likely be divisive, and might range far afield from the appropriate legal and factual inquiry. In a pluralistic America, the jury room must remain a place of common
ground firmly rooted in law, irrespective of deeply and sincerely held religious differences.
444 F.3d 225, 227 (4th Cir. 2006).
If the majority‘s rule applies only to the introduction of quotes from the Judaeo-Christian Bible, then this introduces something akin to an
The idea of “notions of general currency” is one that the majority does not even try to corral, and this is an idea that will likely prove unworkable in practice when courts try to delimit the scope of the majority‘s doctrine. Is it solely ethical principles from the familiar Bible? Does it also include ethical principles from other religions? Does it include ethical principles from philosophers?2 Does it include street-corner wisdom
This is not merely a case presenting juror misconduct in introducing extrinsic evidence. It is worse because the evidence White introduced was that of a “higher law” from the Bible. The United States Supreme Court has labored for decades to set applicable rules for death penalty cases that constrain the exercise of discretion by jurors and that help ensure that when the death penalty is implemented it is based on law. That means that it is based on secular law, not on the law of God or of any particular juror‘s view of that law.
The “use by deliberating jurors of an extrajudicial code (not already embodied in their own characters) cannot be reconciled with the
Here, White introduced Biblical quotations and passages into the jury deliberations. The Bible quotations were circulated to, and discussed by, the jury collectively during its deliberations. White‘s introduction of extrinsic information, especially extrinsic religious precepts from the Bible, was juror misconduct. The Bible‘s presence in the jury room as a focus of deliberations, if I may borrow a phrase from Judge Wilkinson, crossed “the constitutional line.” See Polk II, 444 F.3d at 226 27 (Wilkinson, J., concurring).
II
White‘s sentence should be vacated if it is shown that the juror misconduct error “had substantial and injurious effect or
The majority concludes White‘s introduction of Bible quotations and passages, and dictionary research was not prejudicial primarily because: (1) it presumed that the jury followed the trial court‘s instructions to base its sentence verdict on the facts and instructed law; and (2) Fields did not show influence on the jury, nor was it apparent to the majority opinion in light of Fields‘s heinous crimes. See supra Section IV at 11984-85.
As a general rule, we presume that jurors follow the trial court‘s instructions. See Kansas v. Marsh, 126 S. Ct. 2516, 2528 (2006). But here the conclusion is inescapable that the jury did not follow the trial court‘s instructions. The trial court charged the jury with determining whether to sentence Fields to death or life imprisonment, and instructed the jury to consider only the evidence presented at trial and the factors enumerated in
The majority admits that it was misconduct for the jury to disregard the trial court‘s instructions and research definitions in a dictionary. See supra Section IV at 11988. Yet, the majority presumes that the jury followed the trial court‘s instructions in reaching its penalty verdict after consulting and discussing the Bible quotations. See supra Section IV at 11986. What basis is there to presume, as the majority does, that after consulting both the dictionary and the Bible for aid in deliberations, that the jury members disregarded the secular and divine insights gleaned from these sources and based the sentencing decision on the facts and the law as stated by the trial judge. Indeed, just the opposite is likely. This jury proved it did not follow the trial court‘s specific and explicit instruc-
The majority‘s prejudice analysis is wishful thinking. White‘s written researched Bible quotations and passages in favor of the death penalty were introduced to the jury at the start of the second day of deliberations. According to the district court, White‘s written Bible quotations were discussed, or made available to the jury, for about 70% of the total time the jury deliberated. The jury on an initial vote, before seeing these written Bible quotations, was more inclined to a life sentence than to death.4 Given the authority of the Bible‘s “higher law,” and the time White was able to advocate for the death sentence using these quotations, it is not a stretch to say objectively that White‘s Bible quotations and passages were a catalyst in convincing the jury to vote for a death sentence.
We have good reason to suspect that here the change in the jury‘s views probably were related to the misconduct. Considering that if only one juror had declined to sentence Fields to death the trial court would have been obligated to impose a life sentence, it is more probable than not that White‘s introduction of written researched Bible quotations into jury delib-
One may only hope that the Ninth Circuit will eventually come to recognize that the majority opinion here errs by blinking over the serious jury misconduct that occurred in the penalty phase. The last thing that this country needs, and a thing inconsistent with our constitutional traditions and the paramount role of the jury in our criminal justice system, is to have a theocratic jury room in which a jury foreman can present the jury with notes compiled from the Bible with a selected “pro and con” on the death penalty in light of scripture. The majority fails to realize that a written appeal to “higher law” of the Bible in the jury room by tendering notes to the jurors that were not admitted in evidence or tested by cross-examination is inconsistent with the carefully wrought scheme by which the Supreme Court has held that the ultimate penalty of death can be meted out by a jury when the rules are followed. Fields‘s crimes are horrific, and it is not difficult to see that a jury might have decided that death was warranted. But the rules were not followed in the jury room in the penalty phase. Evidence or extrinsic material that was not admitted was summoned up by the jury foreman. This situation was made worse by the evidence or extrinsic material being of a religious nature that would unduly influence jurors. The majority‘s conclusion that any error was harmless is entirely speculative, for it seems probable that an absence of the marshaled biblical lore favoring death might have tilted at least one juror from seeking the retribution of a death penalty to embracing the mercy of life imprisonment.5 The timing, the source of the external evidence or extrinsic material, the spec-
BERZON, Circuit Judge, with whom REINHARDT and THOMAS, Circuit Judges, join, dissenting:
Stevie Lamar Fields was charged with capital murder. He had the constitutional right to have twelve impartial jurors decide under California law whether he had committed the grave crime with which he was charged and, if so, whether he should lose his life as a result. Instead, he was sentenced to death by a jury whose foreperson brought into the jury room, and placed before his colleagues for consideration, lengthy Biblical quotations that clashed with the judge‘s instructions, with California death penalty law, and with constitutional precepts governing sentencing in a death penalty case. And he was convicted and sentenced to death by a jury containing one juror whose personal circumstances, objectively speaking and assuming an entirely good faith effort on his part to disregard those circumstances, made it highly unlikely that he could be the “impartial and indifferent” decisionmaker that “due process alone has long demanded.” Morgan v. Illinois, 504 U.S. 719, 727 (1992).
The federal district court held that Fields could not be condemned to death by a jury encouraged to rely on religious texts rather than the judge‘s instructions as the basis for its fateful decision. The majority of this en banc court, however — after an exegesis that almost, but not quite, sanctions the jury‘s collective recourse to lengthy quotations from the Bible — somehow divines that Fields would have been convicted and sentenced to death even if the jury had not consulted the Bible‘s absolutist standards for imposing the death penalty. The majority also concludes that we must accept as dispositive a juror‘s assertions that he was able to disregard the close
Following the order in which the district court addressed Fields‘s claims, I first examine the jury‘s use of extrinsic materials — principally, passages from the Bible — during penalty phase deliberations. I explain why the district court correctly determined that this action violated Fields‘s constitutional rights, and why the majority‘s lack-of-prejudice analysis disregards the unusual problems that inhere in making a prejudice determination with regard to the impact of external influences on jury deliberations. I then address why, in the unique circumstances of this case — which go far beyond the fact that a juror‘s wife was a rape victim and that Fields stood accused of rape — the challenged juror‘s “potential for substantial emotional involvement, adversely affecting impartiality” is palpable. Tinsley v. Borg, 895 F.2d 520, 527 (9th Cir. 1990) (quoting United States v. Allsup, 566 F.2d 68, 71 (9th Cir. 1977)) (internal quotation marks omitted). This is therefore “one of ‘those extreme situations where the relationship between a . . . juror and some aspect of the litigation is such that it is highly unlikely that the average person could remain impartial in his deliberations under the circumstances.’ ” Id. (quoting Person v. Miller, 854 F.2d 656, 664 (4th Cir. 1988)).
I.
Before proceeding to either discussion, however, I begin with some reflections about the complex vision of the role of
But the “black box” theory of jury virtue is, quite obviously, far from the whole story. As the stress we place on obtaining a jury that represents a fair cross-section of a defendant‘s peers indicates, see, e.g., Taylor v. Louisiana, 419 U.S. 522, 530-31 (1975), we also recognize, and value, the diverse perspectives jurors of different professions, racial backgrounds, economic circumstances, residential areas, and political and religious views bring to the determination of guilt and innocence and even, as in this case, life and death. Jurors all cut from the same mold, we have come to believe, are less likely to engage in useful collective deliberations, in which the whole is greater than its parts. Put another way, if all unbiased jurors of average intelligence were likely to think the same way with the same input, if jury deliberations were like arithmetic or algebra, then we could do with one juror rather than many. But we don‘t, and we don‘t want to. See Ballew v. Georgia, 435 U.S. 223, 230-39 (1978) (holding that the Constitution requires criminal juries to comprise at least six members in part because a smaller size “leads to inaccurate fact-finding and incorrect application of the common sense of
Other considerations as well temper in our jurisprudence the “black box” approach to jury deliberations. Among the most important is the emphasis we place on the importance of the privacy of jury deliberations. Jurors who expect that their deliberative processes will be open for exposure and interrogation after the verdict is in are likely to pull punches — to say less than they mean, to keep their reasons to themselves and only pronounce bottom-line conclusions, and to fail to respond to points made by fellow jurors. See McDonald v. Pless, 238 U.S. 264, 267-68 (1915) (“But let it once be established that verdicts solemnly made and publicly returned into court can be attacked and set aside on the testimony of those who took part in their publication and all verdicts could be, and many would be, followed by an inquiry in the hope of discovering something which might invalidate the finding. . . . If evidence thus secured could be thus used, the result would be to make what was intended to be a private deliberation, the constant subject of public investigation; to the destruction of all frankness and freedom of discussion and conference.“).
An additional consideration is, of course, the recognition that jurors are simply human beings and human beings are not perfect, whether in their recollection, their understanding of language, or their ability fully to understand their own motivations and reasoning processes. See McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 555 (1984) (“The varied responses to respondents’ question on voir dire testify to the fact that jurors are not necessarily experts in English usage. Called as they are from all walks of life, many may be
This constellation of ideals, competing values, and practical considerations has led to a nuanced set of procedures and standards designed to assure an “impartial and indifferent” jury without losing sight of the value of diversity of backgrounds, the need for insulating the jury‘s deliberative process in large degree from later inquiry, and the reality that human perfection is not likely any time in the near future. Those procedures include voir dire, designed to ferret out without unduly intrusive inquiry those individuals who have a connection to the particular case — to its parties, its facts, its legal standards — such that, consciously or not, that connection is simply too likely to be a barrier to a fair — not pristine but fair — consideration of the evidence, argument, and legal standards presented. They also include instructions to the jury forbidding them to discuss the case with anyone other than fellow jurors once seated and not to discuss the case with even fellow jurors before the instructions are given and the jury retires to deliberate. See
All three of these sets of procedures could be much more absolute if our commitment to the “black box” jury were rigid — which, as I have said, it decidedly is not. Yet, they all posit a limit beyond which an extreme departure from the ideal is unacceptable and will lead to reversal of a verdict. That limit is reached, in the most general of terms, when the circumstances of either one or more jurors or of the nature of the jury deliberations are such that we simply lose confidence that the verdict was reached on the basis of the facts, argument, and legal standards presented in the courtroom.
The majority places a great deal of its emphasis upon the considerable barriers we have erected, for very good reason as I have said, upon post-hoc inquiry into jury verdicts, and upon our encouragement of interchange among jurors based on their life experiences. In doing so, however, it loses sight of the fact that we have not let go of the conviction that there are circumstances in which the connection of a juror to the
The distinctions drawn may appear fine, but they are established and they are the result of considered compromises reached over time between the competing considerations that govern jury deliberations, some of which I have suggested. To resolve this case on the basis of slogans — for example, the assertion that jurors bring their moral precepts to the jury room, or that we must believe jurors who say they can overcome any emotional relationship they have to the particular facts — is simply to disregard the careful balances struck in our case law, so to allow the all-important jury system to serve its critical purposes.
II.
A.
Before beginning penalty-phase deliberations, the jury was instructed that “[a]fter having considered all of the evidence in this case and having taken into account all of the applicable factors upon which you have been instructed,2] you shall
We have consistently recognized that the
Here, there is no question that the Biblical passages copied by White pertained to the key legal question before the jury at the penalty phase — whether death was the appropriate sentence for Fields‘s acts. As the district court correctly observed, several of the passages expressed an absolute command to execute murderers:
The Biblical passages cited by Juror White were not general passages dealing with morality or the commonplace principle that capital punishment is permissible in the abstract in the Judeo-Christian ethical and religious tradition. The references directed the jury that the death penalty should be imposed in any case involving murder.
There is also no question that in their absolute nature, the Biblical passages contained in White‘s notes clashed with standards California law provided for making such decisions. The jurors were instructed to make their decision based on California‘s 1977 death penalty statute that detailed an individualized process for determining whether a defendant should be executed:
After having heard and received all of the evidence, the trier of fact shall consider, take into account and be guided by the aggravating and mitigating circumstances referred to in this section,3] and shall determine whether the penalty shall be death or life imprisonment without the possibility of parole.
By introducing the absolutist Biblical commands into deliberations, White effectively suggested that the jury ignore the individualized sentencing process provided by state law and demanded by the federal Constitution. As we said in Sandoval v. Calderon:
[I]nvocation of higher law or extra-judicial authority violates the Eighth Amendment principle that the death penalty may be constitutionally imposed only when the jury makes findings under a sentencing scheme that carefully focuses the jury on the specific factors it is to consider in reaching a verdict. The Biblical concepts of vengeance . . . do not recognize such a refined approach. Argument involving religious authority also undercuts the jury‘s own sense of responsibility for imposing the death penalty.
241 F.3d 765, 776-77 (9th Cir. 2001) (citations omitted);4 see also Robinson v. Polk, 444 F.3d 225, 232 (4th Cir. 2006) (King, J., dissenting from the denial of rehearing en banc) (“In effect, this juror requested that his fellow jurors throw the individualized consideration required by the Constitution to the wind, for while the Constitution requires that the death penalty be imposed through structured discretion on only a narrow class of the worst murderers, the principle of ‘an eye for an eye’ licenses death as a punishment for any murder, a position rejected by the Supreme Court as contrary to the Constitution.“).5 Substantively, then, there is no doubt that the Bibli
As to the procedural propriety of consulting the Bible during deliberations, federal and state appellate courts generally agree when engaging in de novo review, that a jury engages in the unconstitutional consultation of extrinsic material by introducing the Bible into deliberations during a capital trial. McNair v. Campbell, 416 F.3d 1291, 1308 (11th Cir. 2005) (recognizing “it is undisputed that jurors . . . considered extrinsic evidence during their deliberations” when the jury foreperson read aloud from a Bible), cert. denied, 126 S. Ct. 1828 (2006);6 Jones v. Kemp, 706 F. Supp. 1534, 1559 (N.D. Ga. 1989) (holding the use of a Bible by the jury constituted an impermissible “search for the command of extra-judicial ‘law’ from [a] source other than the trial judge“); McNair v. State, 706 So. 2d 828, 837 (Ala. Crim. App. 1997) (analyzing a jury‘s use of the Bible during deliberations according to the “well settled principle of law . . . [that] is fundamental to a fair trial . . . that jurors should consider only the evidence presented at trial” (quoting Ex parte Troha, 462 So. 2d 953, 954 (Ala. 1984)) (internal quotation mark omitted)); People v. Danks, 32 Cal. 4th 269, 308 (2004) (holding a juror engaged in misconduct by “bringing a copy of the [Biblical] passage into the jury room, and passing it around to the other jurors“); People v. Harlan, 109 P.3d 616, 629 (Colo. 2005) (holding the use of written Biblical materials in the jury room was improper under state law that prohibited “[e]xposure of a jury to information or influences outside of the trial process itself“); State v. Harrington, 627 S.W.2d 345, 350 (Tenn. 1981) (holding error occurred when “the jury foreman buttressed his argument for imposition of the death penalty by reading to the jury selected biblical passages“); Lenz v. Warden of the Sussex I State Prison, 593 S.E.2d 292, 298-99 (Va. 2004) (analyzing defendant‘s claim that a Bible was present in the jury room pursuant to the Supreme Court‘s test for improper extraneous jury contacts).7 Although several of these cases involve the presence of a complete copy of the Bible in the jury room, making only certain portions available exacerbates, rather than ameliorates, the problem presented by the introduction of Biblical writings during jury deliberations. Here, for example, the selection leaves out Biblical passages that can be read as condemning the death penalty or as condoning mercy in some instances. See Dissent of Gould, J. at 11994-95 n.2.
Unable to rely on case law, the majority suggests that White‘s conduct was not misconduct because the notes “are notions of general currency that inform the moral judgment that capital-case jurors are called upon to make.” Maj. op. at 11983. Initially, I note that the majority‘s observation would likely be challenged by tens of millions of Americans who view the Bible not as a collection of “notions” about moral principles, but as a repository of hard-and-fast imperatives that must direct daily life. See Robinson v. Polk, 438 F.3d 350, 374 (4th Cir.) (King, J., dissenting) (“[T]he majority ignores the fact that the Bible is an authoritative code of morality — and even law — to a sizable segment of our population.“), cert. denied, 127 S. Ct. 514 (2006). White‘s notes were therefore significant for their factual representation that the Bible contained such statements, apart from the moral philosophy that the statements themselves expressed.
The majority also suggests that all the courts that have held consulting the Bible to be impermissible reliance on extrinsic material are wrong because the Biblical quotations White looked up, copied, and brought into the jury room were simply “general, commonly known points in favor of the death penalty,” and “[i]t is difficult to see how sharing notes can be constitutionally infirm if sharing memory isn‘t.” Maj. op. at 11983-84. But this suggested equivalence disregards the careful balance between the various precepts regarding jury deliberations I discussed at the outset. In fact, as Morgan makes clear, a juror who voted for the death penalty on the basis of the absolutist position sanctioned by the Biblical quotations White placed before his fellow jurors would violate his oath to follow California law. For quite separate reasons — princi
There is a second reason why this case is not similar to ones involving a juror introducing an argument into deliberations based on his personal knowledge. In such cases, we have held that no misconduct occurred. See Rodriguez v. Marshall, 125 F.3d 739, 745 (9th Cir. 1997) (juror discussed difficulty he had “discerning and recalling objects while driving at freeway speeds“); McDowell v. Calderon, 107 F.3d 1351, 1367 (9th Cir.) (juror argued during deliberations that “a sentence of life without parole . . . wouldn‘t mean ‘without parole’ “), vacated en banc in other parts, 130 F.3d 833 (9th Cir. 1997); Hard v. Burlington N. R.R. Co., 870 F.2d 1454, 1462 (9th Cir. 1989) (juror made arguments during deliberations based on his prior military experience interpreting x-rays). But these cases are based on the proposition that “the general knowledge, opinions, feelings, and bias that every juror carries into the jury room” are properly considered during deliberations. Hard, 870 F.2d at 1461 (emphasis added); see also United States v. Navarro-Garcia, 926 F.2d 818, 821 (9th Cir. 1991) (“[A] juror‘s past personal experiences may be an appropriate part of the jury‘s deliberations.” (emphasis added)). As I have noted, the success of the jury system rests in large part on the coming together of these variations in background, perception, and point of view.
In this case, however, it is undisputed that White‘s notes were the product of overnight Biblical research, rather than of familiarity with the Bible that White already had at the outset of deliberations. The case law proscribing importation of external information places its all on the proposition that this distinction matters: After we choose jurors, we want the decision made on the basis of what went on in the courtroom, fil
B.
Ultimately, however, the majority equivocates about whether White engaged in misconduct, but holds that his actions did not prejudice Fields. In so doing, the majority ignores the indications deemed relevant by our established case law, and fails to appreciate the unique issues involved in examining an extrinsic information claim in the context of an attack on a jury verdict.
1. The district court determined that White‘s misconduct did prejudice Fields. Before so concluding, the court made critical factual findings concerning the introduction of the Biblical material into the jury room: The district court found that the introduction came at a time when the jury was divided on the proper sentence.
[T]he jurors considered and discussed the Biblical references in their deliberations. Juror Henry stated that,
Juror Hilliard stated that, “[t]he jury foreman presented to us, and we discussed, information which he had brought from home, including excerpts from the Bible and definitions. It was after these discussions that we were able to reach a unanimous verdict in favor of recommending the imposition of the death penalty.” Juror White stated that he “brought the notes to the penalty phase jury deliberations and the contents of these notes were discussed during our deliberations.”
Respondent has submitted declarations from several jurors in which they stated that they did not recall any discussion of the Bible or dictionary definitions. However, the declarations submitted by respondent confirm the Court‘s finding that Biblical references were provided by Juror White and discussed by the jury.
. . .
. . . [I]n this case, there is evidence that a majority of the jurors favored a verdict of life without the possibility of parole until the jury discussed the Biblical references.
Fields v. Calderon, slip op. at 13-14, 16-17 (second alteration in original) (citations omitted).
Moreover, that White thought it necessary to bring the Biblical material into the jury room after an initial session of deliberations strongly suggests that the material could have had an impact on the jury. Presumably, White felt that reviewing the material at home had affected his analysis and thought it might have a similar impact on others if brought into the jury room. Why would he spend the time hand copying the material if the jury was close to a decision, in which case his work was likely to be for naught? See Gibson, 633 F.2d at 855 (“[T]he fact that at least two jurors believed that it was necessary to obtain more evidence is, by itself, an indication that
Also, quite aside from the time and manner in which this extrinsic information was introduced, its content had a clear potential to affect deliberations. We have previously observed that one of the Bible passage reprinted verbatim in White‘s notes — Romans 13:1-5 — is “commonly understood as providing justification for the imposition of the death penalty,” and its invocation during the sentencing phase of a capital trial “cloak[s] the State with God‘s authority.” Sandoval, 241 F.3d at 775, 779. We held in Sandoval that a prosecutor‘s allusion to that passage, in concert with other religious references, prejudiced a defendant‘s right to be sentenced according to the statutory scheme for imposing the death penalty. Id. at 778-80. Sandoval explicitly noted that the record did not disclose whether the jury actually considered the prosecutor‘s Biblical argument, but it nonetheless held that “we cannot assume that the prosecutor‘s religious argument did not persuade at least one of the jurors to change a vote for life to death.” Id. at 779.
Notwithstanding the majority‘s attempt to frame a prosecutor‘s invocation of the Bible as more damaging than its actual entry into the jury room, Maj. op. at 11984, our case law and common sense dictate the opposite conclusion: A fellow juror‘s introduction of such material into the jury room has an even greater potential for a prejudicial effect, because the defendant is unable to mitigate the jury‘s consideration of the Bible as he can when the prosecutor brings it into the trial — for example, by tailoring his closing argument to account for the religious arguments or by insuring that the judge instructs the jury to consider only the relevant statutory factors. See Gibson, 633 F.2d at 854 (“[W]hen a jury considers facts that have not been introduced in evidence . . . the violation may be more serious than where these rights are denied at some other stage of the proceedings because the defendant may have no idea what new evidence has been considered. It is
Other courts have also recognized the specially prejudicial nature of a jury‘s consideration of Biblical material. One federal district court has held that a jury‘s consultation of a Bible during penalty phase deliberations “may be highly prejudicial to the defendant” because it represents “a source which ‘would likely carry weight with laymen and influence their decision.’ ” Jones, 706 F. Supp. at 1560 (quoting Wilson v. Kemp, 777 F.2d 621, 626 (11th Cir. 1985)). Likewise, Colorado‘s Supreme Court has found prejudice from the introduction of the Bible into deliberations: “[A]t least one juror in this case could have been influenced by these authoritative passages to vote for the death penalty when he or she may otherwise have voted for a life sentence” because “[t]he Bible and other religious documents are considered codes of law by many in the contemporary communities from which . . . jurors are drawn.” Harlan, 109 P.3d at 630-31.
2. Given the nature of the extrinsic information involved in this case and the manner in which it was received by the jury, the majority‘s reversal of the district court on no-prejudice grounds is inexplicable. In so ruling, the majority determines that the notes had “no substantial and injurious effect or influence in determining the jury‘s verdict” and holds this lack of impact precludes habeas relief pursuant to Brecht v. Abrahamson, 507 U.S. 619 (1993). Maj. op. at 11984.
If, when all is said and done, the [court‘s] conviction is sure that the error did not influence the jury, or had but very slight effect, the verdict and the judgment should stand . . . . But if one cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected. The inquiry cannot be merely whether there was enough to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand.
328 U.S. at 764-65; see also Payton v. Woodford, 346 F.3d 1204, 1218 (9th Cir. 2003) (en banc) (explaining that our Brecht inquiry must reflect the “greater need for reliability” in the death penalty context (quoting Coleman v. Calderon, 210 F.3d 1047, 1050 (9th Cir. 2000)) (internal quotation marks omitted)), rev‘d on other grounds sub nom. Brown v. Payton, 544 U.S. 133 (2005). Where the contention is that the jury improperly considered extrinsic information, this Brecht inquiry must focus upon the extrinsic material‘s impact on any juror, because “even a single juror‘s improperly influenced vote deprives the defendant of an unprejudiced, unanimous verdict.” Lawson v. Borg, 60 F.3d 608, 613 (9th Cir. 1995); see also Sassounian, 230 F.3d at 1110.
This circuit for more than two decades has relied on a five-factor test to determine in the habeas context whether extrin
(1) whether the material was actually received, and if so, how; (2) the length of time it was available to the jury; (3) the extent to which the jury discussed and considered it; (4) whether the extrinsic material was introduced before a verdict was reached, and if so, at what point in the deliberations it was introduced; and (5) any other matters which may bear on the issue . . . .
Bayramoglu v. Estelle, 806 F.2d 880, 887 (9th Cir. 1986) (citing Paz v. United States, 462 F.2d 740, 746 (5th Cir. 1972)). I, like the district court, would hold that all of these factors point toward the prejudicial nature of White‘s notes.
First, there is no dispute that the material was actually received by the jury when its foreperson brought the notes into deliberations. Second, the notes entered the jury room at the start of the second day of deliberations, which meant the jury considered the Biblical material during the majority of the time it considered Fields‘s sentence — four-and-one-half of the six-and-one-half hours of deliberations. Third, the notes were available to all members of the jury, and several members of the jury submitted affidavits attesting to their presence in the jury room. Fourth, the material entered the jury room during the pivotal period when the sentence was far from settled. Fifth, “the extrinsic information directly related to a material issue in the case” — the proper sentence. Lawson, 60 F.3d at 612; see also Marino, 812 F.2d at 506 (“Reversible error commonly occurs where there is a direct and rational connection between the extrinsic material and a prejudicial jury conclusion, and where the misconduct relates directly to a material aspect of the case.“).
Moreover, only one of the factors we identified in Jeffries v. Wood, 114 F.3d 1484 (9th Cir. 1997) (en banc), as poten
whether the prejudicial statement was ambiguously phrased; whether the extraneous information was otherwise admissible or merely cumulative of other evidence adduced at trial; whether a curative instruction was given or some other step taken to ameliorate the prejudice; the trial context; and whether the statement was insufficiently prejudicial given the issues and evidence in the case.
Id. at 1491-92 (footnotes omitted).
The majority, in determining that the extrinsic material here does not meet the Brecht prejudice standard, judges the prejudicial nature of White‘s misconduct based on a set of factors it creates largely from thin air: the fact that White‘s notes also contained material helpful to Fields; the fact that the extrinsic material was introduced early in the deliberations; the fact that the jury was instructed to base its determinations on the law; and the fact that the aggravating evidence against Fields was powerful. Maj. op. at 11984-85. These reasons, with one exception, have no basis in our case law and are, moreover, not pertinent to the prejudice inquiry.
Far from providing “fair assurance” about the harmlessness of the jury misconduct, the majority‘s first three factors provide no reason to doubt that the Biblical material affected deliberations. The majority‘s first factor, the balance of White‘s notes, ignores the record: As the district court found, “all of the Biblical references supported the imposition of the ultimate penalty” and “did not include . . . Biblical references supporting the concepts of forgiveness and mercy.” Fields v. Calderon, slip op. at 16. So the effect of the Biblical material was exclusively in favor of capital punishment. White‘s “against” notes were much shorter, were not quotations at all
The majority‘s second factor, the early introduction of the Biblical materials into deliberations, actually made the misconduct worse, because the jury engaged in very little deliberation unaffected by the religious considerations. See Lawson, 60 F.3d at 613 (finding “the early stage at which the extrinsic information was introduced” was one factor dictating that “the juror misconduct substantially and injuriously influenced the verdict“). The majority‘s third factor, our normal presumption that jurors follow instructions, is inapposite when the jury‘s very decision to consider the extrinsic evidence conclusively demonstrates that it did not follow the instruction to rely only on the law as stated by the judge. Also, this factor would render all jury misconduct concerning extrinsic material harmless, because jurors are uniformly instructed to rely on the facts and on legally proper considerations.
Ultimately, the only potentially relevant factor cited by the majority for its prejudice analysis is the presence of powerful aggravating evidence in this case. Certainly, the murder charged in this case was extremely brutal and was alleged to have occurred during the course of an extensive violent crime spree. Based on such evidence, I have no doubt that a jury could have determined death was the proper punishment for Fields after properly applying California‘s prescribed weighing system.
Under Brecht, however, “[t]he inquiry cannot be merely whether there was enough to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence.” Kotteakos, 328 U.S. at 765. The manner in which the jury considered the extrinsic Biblical material in this case, as well as its inherently prejudicial nature, demonstrates that the error did substantially influence this jury and that Fields has a right to be resentenced by a jury not so influenced. The California Supreme Court‘s
3. Not only is the majority‘s Brecht analysis flawed as applied to this specific case, but it ignores the special nature of claims involving jury misconduct. On direct review of federal criminal cases, after a defendant has demonstrated that the jury considered extrinsic evidence, we readily find prejudice absent specific evidence that there was no prejudice. See Rosenthal, 454 F.3d at 949 (“Extraneous- information cases . . . call for more searching review; we grant a new trial if ‘there is a reasonable possibility that the material could have affected the verdict.’ . . . [W]e generally place the burden ‘on the party opposing a new trial to demonstrate the absence of prejudice.’ ” (emphasis omitted) (quoting Sea Hawk Seafoods, Inc. v. Alyeska Pipeline Serv. Co., 206 F.3d 900, 906 (9th Cir. 2000))). This view of prejudice arises from the Supreme Court‘s presumption of prejudice in Mattox and in Remmer v. United States, 347 U.S. 227 (1954), when jurors communicate with third parties. See United States v. Martinez, 14 F.3d 543, 550 (11th Cir. 1994) (citing Remmer, 347 U.S. at 229; Mattox, 146 U.S. at 150).9
Because Rule 606(b) precludes the district court from investigating the subjective effects of any extrinsic material on the jurors, whether such effects might be shown to affirm or negate the conclusion of actual prejudice, a presumption of prejudice is created and the burden is on the government to prove harmlessness.
United States v. Bassler, 651 F.2d 600, 603 (8th Cir. 1981).
The test we adopted in Bayramoglu for determining whether the jury‘s consideration of extrinsic information is prejudicial has effectively served as our means of mediating
* * *
In sum, I have no doubt that White engaged in unconstitutional misconduct by injecting his overnight Biblical research into the deliberations, and I am convinced, taking into account the manner in which the material came before the jury, its nature, and our usual test for determining prejudice arising from extrinsic material, that this conduct substantially influ
III.
Fields was not only denied his right to an impartial jury applying the correct law, as the district court found. In addition, the presence of an individual on the jury who, objectively speaking, was not “impartial and indifferent,” violated Fields‘s constitutional rights even before the jury considered the Biblical material during its penalty-phase deliberations. See Morgan, 504 U.S. at 727.
The wife of juror Floyd Hilliard had been the victim of an unsolved crime, with details quite similar to the allegations against Fields. The extreme distress generated by the attack — stoked by the fear that the unknown perpetrator would return — was still affecting the family at the time of the trial. Moreover, during the trial Floyd Hilliard was faced with repeated suggestions from his wife that Fields was her rapist, and had to respond nightly to her requests to attend the trial to confirm her suspicions.
Any of these circumstances, independently, would likely place unusual and unpredictable strains on Floyd Hilliard‘s objectivity. Their combination presents the “extraordinary case[ ], [in which] courts may presume bias based on the cir
A.
Two-and-one-half years before Floyd Hilliard was called for jury duty, his wife Diane Hilliard, driving home from a Christmas party, had been abducted at gunpoint by a man who rammed her car while it was idling at a traffic light. The assailant forced Diane Hilliard into his car, drove her to a remote location, and pistol-whipped, robbed, and raped her. He then told her, “well, bitch, I‘m going to have to shoot you now.” His plan, however, was interrupted by a local resident who noticed the suspicious car and came out to investigate. Diane Hilliard recounted that the attacker “threatened to come back to finish me off” before fleeing — a quite plausible threat because he had stolen her purse that contained her home address. When Floyd Hilliard arrived at the hospital after the attack, he found his wife disheveled and in a state of shock, nursing a broken nose, head lacerations, and a black eye. According to his wife, Floyd Hilliard was “shaken,” “upset,” “shocked,” and “angry” upon seeing her injured state. More than twenty-five years later, Diane Hilliard had no hesitation in calling the attack “the most horrifying experience in my life.”
According to Diane Hilliard, the crime “radically changed” both her and her husband‘s life, in part because the perpetrator was never caught. In a 2003 deposition, she confirmed that “[f]or a long time after the attack[,] I lived in terror that he was out there” and feared “that he would come to make good on his threat.” Floyd Hilliard also confirmed in a 2003 deposition that the attack was “a very, very upsetting event.” Following the attack, Diane Hilliard began carrying a handgun in her purse, and continued to do so during the time of Fields‘s
The allegations against Fields included many of the same crimes — rape, kidnapping, robbery, assault — as those suffered by Diane Hilliard at the hands of a perpetrator still on the loose. Moreover, the details and modus operandi of those crimes had substantial similarities. Diane Hilliard was attacked by a slender African American male in his twenties, which matched the physical description of Fields. She was abducted while driving through a neighborhood only ten minutes away from Fields‘s house and the area where his crimes occurred. Adding to the similarities, Fields was charged with forcing his victims to enter his car at gunpoint, which was similar to the actions of the person who abducted Diane Hilliard. This court recognized that “Hilliard‘s wife was the victim of a crime that was quite similar to the charges against Fields” when previously remanding this case for an evidentiary hearing. 309 F.3d 1095, 1105 (9th Cir. 2002).
As the district court‘s findings on remand demonstrate, Floyd Hilliard and his wife were far from oblivious to the similarity of the crimes at the time of Fields‘s trial. When informed of the charges involved in the case at the beginning of jury selection, Floyd Hilliard doubted that he would be selected as a juror because of his wife‘s parallel experience. In response to voir dire questioning about whether any close family members had been victims of a crime, Floyd Hilliard disclosed that his wife was “assaulted and beaten, robbed, two years ago.” The district court found that “he did not mention in voir dire that his wife had been raped or kidnaped” because he “did not want to be more explicit in open court than he was
After Floyd Hilliard was selected as a juror, his wife repeatedly suggested to him that Fields might be her rapist. In her deposition, Diane Hilliard recounted thinking that “there was a pretty good possibility” that Fields was responsible for her attack. Accordingly, she “begged” each night for his permission to attend the trial in order to see if Fields was her rapist. Floyd Hilliard, however, refused these repeated requests. He did, however, himself think during the trial about how the testimony “sound[ed] like what happened to my wife.”
The district court found that although Floyd Hilliard did not believe Fields was his wife‘s abductor because Fields‘s modus operandi had some differences from the details of her attack, he did not want her “to come to the trial because he did not want her to compromise him as a juror and he did not want the psychological trauma to affect their home life. . . . Mr. Hilliard was concerned his wife would be traumatized by the testimony and that it would create family problems.” Id. at 31. In his deposition, Floyd Hilliard also explained that he refused his wife‘s request because “suppose indeed, in fact, she did ID him as the perpetrator . . . then that would invalidate me as a objective juror.” He recognized such a development would have required him to disqualify himself as a juror and would have compromised the ongoing trial.
Most jury bias claims — “actual bias” — must be founded on evidence that a juror “was disposed to cast a vote against” the defendant. Dyer, 151 F.3d at 981. But “[i]n extraordinary cases, courts may presume bias based on the circumstances.” Id. In such cases, the doctrine of “implied bias”11 disqualifies the affected individual from serving on the jury, and dictates that any defendant whose fate was decided by such a juror has been denied his constitutional right to a fair trial by a panel of “impartial and indifferent” jurors. Morgan, 504 U.S. at 727.
The doctrine of implied bias is premised largely on the understanding that certain circumstances create too great a risk of affecting a juror‘s decisionmaking process, even if the juror is not, consciously, fully aware of the impact. The Supreme Court focused on this rationale in explaining why implied bias has traditionally disqualified individuals who had employment relationships with the parties from jury service:
Bias or prejudice is such an elusive condition of the mind that it is most difficult, if not impossible, to always recognize its existence, and it might exist in the mind of one (on account of his relations with one of the parties) who was quite positive that he had no bias, and said that he was perfectly able to decide the question wholly uninfluenced by anything but the evidence. The law therefore most wisely says that with regard to some of the relations which may exist between the juror and one of the parties, bias is
implied, and evidence of its actual existence need not be given.
Crawford v. United States, 212 U.S. 183, 196 (1909); see also Smith v. Phillips, 455 U.S. 209, 221-22 (1982) (O‘Connor, J., concurring) (“Determining whether a juror is biased or has prejudged a case is difficult, partly because the juror may have an interest in concealing his own bias and partly because the juror may be unaware of it.” (emphasis added)). In this respect, the implied bias doctrine applied to jurors parallels conflict-of-interest rules that apply to lawyers and judges. See Dyer, 151 F.3d at 983 n.22. Those rules “ban[ ] lawyers and judges from taking on cases in certain conflict situations even if they are certain that the objective conflict will have no influence on them and are prepared to take every precaution to preclude such influence,” because “[h]uman self-perception regarding one‘s own motives for particular actions in difficult circumstances is too faulty to be relied upon, even if the individual reporting is telling the truth as he perceives it.” United States v. Shwayder, 312 F.3d 1109, 1119 (9th Cir. 2002). Floyd Hilliard‘s own deposition attests to the wisdom of applying a similar rule to jurors: In explaining why he responded only “I doubt it,” rather than more definitively, to a voir dire question about whether it would be difficult for him to be an impartial juror, he noted “you can never be sure what‘s in the back of your mind.”
Accordingly, the implied bias doctrine applies in circumstances where a juror “introduces . . . [an] unpredictable factor into the jury room” or “introduces destructive uncertainties into the [factfinding] process.” Dyer, 151 F.3d at 982-83. In such cases, we do not consider the actual bias question of “whether [the juror] was disposed to cast a vote against [the defendant].” Id. at 981. It would not matter if the juror is found to have no actual bias against the defendant, because his “substantial emotional involvement” with some aspect of the case creates too great a risk of altering the jury‘s deliberations despite the juror‘s conviction that it will (or did) not. See
Of course, a juror could be a witness or even a victim of the crime, perhaps a relative of one of the lawyers or the judge, and still be perfectly fair and objective. Yet we would be quite troubled if one of the jurors turned out to be the prosecutor‘s brother because it is highly unlikely that an individual will remain impartial and objective when a blood relative has a stake in the outcome. Even if the putative juror swears up and down that it will not affect his judgment, we presume conclusively that he will not leave his kinship at the jury room door. The effect of this factor would be impossible to predict: Would the juror yield to his sympathies, or fight them and lean the other way? There is no way to know, but permitting such a juror to serve would introduce into the jury room an extraneous influence that could materially color the deliberations.
Dyer, 151 F.3d at 982. In other words, the implied bias doctrine exists principally to disqualify jurors who have an excess probability of being influenced in their deliberations by an extraneous consideration, despite their good faith belief that they can avoid doing so. It is not directed primarily at uncovering jurors hiding their conscious bias, although in some cases of implied bias that may be so.12
In conducting this specifically tailored analysis, we must determine the effect on “an average person in the position of the juror in controversy,” because “the implied bias standard is essentially an objective one.” United States v. Gonzalez, 214 F.3d 1109, 1112-13 (9th Cir. 2000) (emphases omitted) (quoting United States v. Cerrato-Reyes, 176 F.3d 1253, 1260-61 (10th Cir. 1999)).13 So, in evaluating whether the implied bias doctrine applies, we disregard a juror‘s claims that he was not affected by his connection to the case. Id. at 1113. We do so because an underpinning of the implied bias doctrine is the recognition that the juror will often be unable to see for himself the effects of the connection. As Dyer observed, “[a juror] may declare that notwithstanding these prejudices he is determined to listen to the evidence, and be governed by it; but the law will not trust him.” 151 F.3d at 984 (quoting United States v. Burr, 25 F. Cas. 49, 50 (C.C.D. Va. 1807) (No. 14,692g) (Marshall, J.)) (internal quotation marks omitted). This lack of trust, I emphasize once more, is not an unrebuttable presumption of dishonesty — or of lack of good faith — but, instead, a practical recognition of the complexities of human mental processes.
Indeed, there is direct evidence that Floyd Hilliard‘s emotional involvement did influence his thought process to some degree during the trial: Floyd Hilliard stated during his 2003 deposition, it was “only a natural response” for him to recognize during the course of the trial that the testimony “sounds like what happened to my wife,” and the trial did “trigger a memory that . . . my wife had a similar thing.” And Floyd Hilliard was concerned during the trial that the link between the facts developed during Fields‘s trial and those of the crime against his wife were so close that it could be traumatic for his spouse to attend the trial. As Floyd Hilliard was far from indifferent during Fields‘s trial to the similarities with the crime against his wife, it would have been an equally “natural response” for the similarities to affect his final deliberative process, without him being quite aware of the impact. Cf. Allsup, 566 F.2d at 71-72 (observing implied bias arose in part because the juror had a “reasonable apprehension of violence” from those who committed the crime on trial).
In short, permitting the average juror in Floyd Hilliard‘s very unusual position to serve as a juror “would introduce into the jury room an extraneous influence that could materially color the deliberations. The juror in question would be lacking
Given these close, emotionally charged, and ongoing links between Fields‘s trial and the rape of Diane Hilliard in the same area a couple of years earlier by a rapist who was still at large, the majority‘s observation that “[b]eing the spouse of a rape victim is not, in and of itself, such an ‘extreme’ or ‘extraordinary’ situation that it should automatically disqualify one from serving on a jury in a case that involves rape” is quite beside the point. Maj. op. at 11972 (emphasis added). Our case law indicates that we should not inquire at such a general level about the effect of a relationship with the trial. See Tinsley, 895 F.2d at 527. That admonition applies in spades in this case. For, although the majority tries to segregate out and minimize the impact of the Hilliards’ struggle during the trial over whether Diane Hilliard could attend, in fact that struggle is critical in assessing the implied bias issue in this case.14 The daily discussions between Floyd Hilliard and his wife plainly had emotional content of their own and brought back to Floyd Hilliard on a daily basis the emotional impact of the connection between the brutal facts proved at trial and the brutal attack on his wife. No other case of which I am aware concerning implied bias arising from similarities between the offense being tried and the experiences of a juror‘s close relative has this exceptional feature — that the
C.
The majority, nonetheless, concludes that it “see[s] no basis for inferring bias now as a matter of law,” “[g]iven Hilliard‘s honest response on voir dire that revealed a potentially disqualifying relationship, but not an extreme or extraordinary one, and the results of the evidentiary hearing which disclosed no actual bias.” Maj. op. at 11973 (emphasis added). But neither Floyd Hilliard‘s honest response nor his lack of actual bias answer the dispositive implied bias question — whether this case‘s facts present an extraordinary situation to which implied bias applies.
1. In rejecting Fields‘s implied bias claim, the majority
As a general matter, the implied bias question is analytically distinct from the question of whether a juror was honest during voir dire: The former determines whether a juror was categorically unfit to serve as an impartial, indifferent juror; the latter determines whether a juror shortchanged the defendant‘s right to learn about jurors’ proclivities through voir dire.16 The separate opinions by the Supreme Court in McDonough Power Equipment, Inc. v. Greenwood establish this distinction. Focusing on the harm that the appellant alleged
This interpretation of McDonough has been adopted by four other circuits. See Gonzales v. Thomas, 99 F.3d 978, 985-86 (10th Cir. 1996) (holding a defendant who fails to show a juror dishonestly answered a question during voir dire, pursuant to McDonough‘s principal opinion, still has “the normal avenue of relief available to a party who is asserting that he did not have the benefit of an impartial jury,” including the use of implied bias (quoting McDonough, 464 U.S. at 556 (Blackmun, J., concurring)) (internal quotation marks omitted)); accord Zerka v. Green, 49 F.3d 1181, 1186 n.7 (6th Cir. 1995); Amirault v. Fair, 968 F.2d 1404, 1405-06 (1st Cir. 1992)
Moreover, logic dictates that a juror‘s honesty in voir dire cannot affect a determination that his ties to the case present an “exceptional circumstance” making him categorically unfit to deliberate. Whether such a juror tells the truth or lies during voir dire does not change the likelihood that his deliberative process will be unconsciously affected by his emotional involvement in the case. To borrow from Judge Kozinski‘s analysis in Dyer,
[u]nder the [majority‘s] logic, reasonable jurists could hold that [Fields] would have been accorded due process even if he had been convicted by a jury comprised of the following twelve individuals: (1) the mother of . . . the prosecutor, (2) [the prosecutor‘s] former law partner, (3) [Los Angeles‘s] Chief
of Police, (4) the Grand Dragon of the [Los Angeles] KKK, (5) the sister of [the victim] who died in the shooting, (6) [the murder victim‘s] mother, (7) the victim of [Fields‘s] prior [rape], (8) [Fields‘s] ex-wife, (9) the District Attorney, (10) a[ ] [Los Angeles] councilman running for re-election on a “tough-on-crime” platform, (11) [Fields‘s] cellmate, and (12) [Hilliard‘s] wife . . . — so long as they had all sworn they [were] fair.
151 F.3d at 985. Like the Dyer majority, I believe the presence of any of these individuals on Fields‘s jury would have deprived him of a fair trial. And that would be the case equally whether they lied during voir dire about their disqualifying characteristic or were fully truthful. Dishonesty is central to a McDonough-style claim, and is of relevance to an actual bias contention because lying on voir dire can suggest an attempt to avoid disqualification and thereby to act on one‘s bias. But dishonesty during voir dire has little to do in general with the concerns underlying the implied bias doctrine.
Moreover, Floyd Hilliard‘s honesty during voir dire is, if anything, doubly irrelevant to the implied bias inquiry because critical factors supporting a implied bias finding in this case — perhaps the most important — arose after voir dire. No amount of voir dire questioning could have uncovered the fact that Diane Hilliard suggested repeatedly during trial that Fields might be her attacker and begged Floyd Hilliard to allow her to attend the trial, and that Floyd Hilliard refused to accede, in part because of fear of traumatizing his wife. Although the majority fails to consider whether these emotionally charged interactions after voir dire created implied bias, see Maj. op. at 11971-72, 11974-75 (rejecting Fields‘s claims that developments after voir dire rendered Floyd Hilliard a biased juror, because the district court found Floyd Hilliard had no actual bias and did not believe his wife‘s speculation), such bias can arise from, or be reinforced
In short, Floyd Hilliard‘s honesty in voir dire is entirely besides the point in applying the implied bias doctrine to the unique circumstances before us.
2. Based on the district court‘s finding that Floyd Hilliard was not biased in fact, and our deferential standard of review in reviewing such findings, the majority quickly dismisses Fields‘s actual bias claim. Maj. op. at 11961. I agree that the district court‘s findings dictate such a result. That conclusion should end the discussion of whether Floyd Hilliard was actually biased against Fields. See Dyer, 151 F.3d at 981 (explaining the distinction of the actual bias and implied bias questions).
The majority, however, regularly refers to the district court‘s finding of no actual bias throughout the following nineteen pages purportedly devoted to the implied bias question. See, e.g., Maj. op. at 11972 (“Here, the evidentiary hearing showed no actual effect of his wife‘s experience, or of their conversation, on Hilliard‘s ability to be fair and impartial.“). Moreover, the majority entirely dismisses any claim of implied bias arising from facts occurring after voir dire on the basis that “the district court afforded Fields an opportunity to show that Hilliard was not a fair and impartial juror” — the test for actual bias — and “[h]e failed to do so.” Maj. op. at 11971. But these findings concerning Floyd Hilliard‘s actual bias are irrelevant to implied bias. See Gonzalez, 214 F.3d at 1113 (“[A] court will, where the objective facts require a determination of such bias, hold that a juror must be recused
* * *
Because of the many similarities between the rape of Diane Hilliard — a crime that greatly affected both Floyd Hilliard and his wife — and the crime that Fields was on trial for committing, combined with Diane Hilliard‘s suggestions that Fields might be her rapist and her repeated requests to attend the trial that raised concerns about her emotional well-being, the required objective inquiry should lead us to hold that Floyd Hilliard “introduce[d] . . . [an] unpredictable factor into the jury room” and “introduce[d] destructive uncertainties into the [factfinding] process.” Dyer, 151 F.3d at 982-83. Floyd Hilliard may “swear[ ] up and down that it [did] not affect his judgment, [but] we presume conclusively that he will not leave [these influences] at the jury room door.” Id. at 982. As in Dyer, “[m]ore is at stake here than the rights of petitioner; ‘justice must satisfy the appearance of justice.’ ” Id. at 983 (quoting Offutt v. United States, 348 U.S. 11, 14 (1954)); see also id. at 981 (noting the possibility that the impliedly biased juror “could have harbored some empathy for criminal defendants” (emphasis added)). Such an appearance was lacking regardless of Floyd Hilliard‘s claims of conscious fairness — and even if in fact Floyd Hilliard was, as far as he was aware, not influenced by the confluence of circumstances giving rise to implied bias.
The State of California accused Stevie Lamar Fields of committing a series of heinous crimes and maintains he should be executed. The Constitution entitled Fields to have a set of impartial jurors make such a determination in accordance with the state‘s penal statutes. Because the record raises substantial doubts whether Fields‘s fate was decided by such a jury, the state may not execute him absent a retrial. I therefore dissent.
Notes
(a) The circumstances of the crime of which the defendant was convicted in the present proceeding and the existence of any special circumstances found to be true . . . .
(b) The presence or absence of criminal activity by the defendant which involved the use or attempted use of force or violence or the express or implied threat to use force or violence.
(c) Whether or not the offense was committed while the defendant was under the influence of extreme mental or emotional disturbance.
(d) Whether or not the victim was a participant in the defendant‘s homicidal conduct or consented to the homicidal act.
(e) Whether or not the offense was committed under circumstances which the defendant reasonably believed to be a moral justification or extenuation for his conduct.
(f) Whether or not the defendant acted under extreme duress or under the substantial domination of another person.
(g) Whether or not at the time of the offense the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was impaired as a result of mental disease or the affects [sic] of intoxication.
(h) The age of the defendant at the time of the crime.
(i) Whether or not the defendant was an accomplice to the offense and his participation in the commission of the offense was relatively minor.
(j) Any other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime.
464 U.S. at 556-57 (Blackmun, J., concurring). Justice Blackmun cited to Justice O‘Connor‘s concurring opinion in Smith v. Phillips, 455 U.S. 209 (1982), where she suggested that bias may be presumed when, for example, there is “a revelation . . . that the juror is a close relative of one of the participants in the trial or the criminal transaction, or that the juror was a witness or somehow involved in the criminal transaction.” Id. at 222 (O‘Connor, J., concurring). The majority says that McNair referred to the Bible extracts as “extrinsic evidence” only “as a statement of fact.” Maj Op. at 11986 n.22. The Eleventh Circuit so stated in a section called the “Merits,” and after a lengthy paragraph setting out the standards applicable to assessing the impact of extrinsic evidence. See McNair, 416 F.3d at 1307-08. In context the “undisputed” comment is not simply a statement of the parties’ positions but an indication that the point is so obvious as to be indisputable.the proper inquiry in this case is whether the plaintiffs had the benefit of an impartial trier of fact. I also agree that, in most cases, the honesty or dishonesty of a juror‘s response is the best initial indicator of whether the juror in fact was impartial. I therefore join the Court‘s opinion, but I write separately to state that I understand the Court‘s holding not to foreclose the normal avenue of relief available to a party who is asserting that he did not have the benefit of an impartial jury. Thus, regardless of whether a juror‘s answer is honest or dishonest, it remains within a trial court‘s option, in determining whether a jury was biased, to order a post-trial hearing at which the movant has the opportunity to demonstrate actual bias or, in exceptional circumstances, that the facts are such that bias is to be inferred.
In Allsup, two jurors in a bank robbery trial were employees of a different branch of the bank that was robbed. 566 F.2d at 71. On direct appeal, we held that their relationship to the subject of the trial was too close for them to be impartial, therefore the trial court erred by failing to excuse the jurors for cause. Id. at 71-72.
Eubanks was a heroin conspiracy case. 591 F.2d at 516. We presumed bias on direct appeal from denial of a motion for new trial because the juror failed to disclose that two of his children were in prison for heroin-related crimes. Id. at 517. On a juror qualification form, the juror had indicated that he was married but had no children, and the juror did not respond to a question by the judge on voir dire whether “you or members of your immediate families [have] ever been personally interested in the defense of a criminal case or a witness for the defense in a criminal case[.]” Id. at 516. Had he answered truthfully, the trial court would have excused him. Id. at 517. In these circumstances, we concluded that the juror‘s sons’ involvement with heroin barred the inference that he served impartially. Id.
does not by itself require a new trial, and would hold that “to be awarded a new trial, a litigant should be required to demonstrate that the juror incorrectly responded to a material question on voir dire, and that, under the facts and circumstances surrounding the particular case, the juror was biased against the moving litigant.” McDonough, 464 U.S. at 557-58 (Brennan, J., concurring in the judgment). He would also have recognized that bias may be actual or implied (conclusively presumed as a matter of law), and accordingly, disagreed with the Court “that a new trial is not warranted whenever a prospective juror provides an honest answer to the question posed.” Id. at 558-59.
The Fourth Circuit has held that a state trial court did not contravene clearly established Supreme Court case law by refusing to consider a claim that jurors engaged in misconduct by reading from a Bible during deliberations. Robinson v. Polk, 438 F.3d 350, 363-64 (4th Cir.), cert. denied, 127 S. Ct. 514 (2006). The court noted, however, that “our answer could possibly be different on de novo review.” Id. at 363.- “placate gods”
- “eye for eye”
- “deterrence”
- “Fitting punishment to crime”
- “Rights of victim”
- “Duty of the state to protect citizens”
- “Biblical”
“Genesis 9:6 ‘Whoso sheddeth man‘s blood by man shall his blood be shed, for in the image of God made He man’ ”
“Exodus 21:12 ‘He that smiteth a man, so that he dies, shall surely be put to death’ ”
- “Possibility of Repeated offenses”
- “Murder = a rejection of the values of society”
- “New Test”
“Romans 13:1-5 ‘Let everyone be subject to the higher authorities, for there exists no authority except from God, and those who exist have been appointed by God. Therefore, he who resists the authority, resists the ordinance of God; and they that resist bring on themselves condemnation’ ”
Extenuation — to thin out — palliation, softening, whitewash, gloss over, varnish, loophole, make allowance for
Vindication — justifiable, excusable, inculpable, blameless, legitimate not blameworthy . . . vindicable/extenuating
“The proper object of extenuate in its sense of making excuses for is a word expressing something bad in itself, as guilt, cowardice, cruelty — not a neutral word such as conduct or behavior — circumstances [sic]
“The meaning of excuse should not attach to extenuate, the word.” VA [sic] Fowler
Of course, if an honest voir dire answer causes the defendant to become fully aware of the facts creating the implied bias, and he fails to request that the judge excuse the juror for cause, then he cannot ask for his conviction to be reversed on the jury bias ground. See United States v. Bolinger, 837 F.2d 436, 439 (11th Cir. 1988) (per curiam) (“Thus, where the defendant or defense counsel knows of juror misconduct or bias before the verdict is returned but fails to share this knowledge with the court until after the verdict is announced, the misconduct may not be raised as a ground for a new trial.“). Because Floyd Hilliard‘s voir dire answers did not — and could not, because many of the relevant facts arose only after jury selection — reveal all of the relevant facts, waiver does not apply in this case.Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury‘s deliberations or to the effect of anything upon that or any other juror‘s mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror‘s mental processes in connection therewith. But a juror may testify about (1) whether extraneous prejudicial information was improperly brought to the jury‘s attention, (2) whether any outside influence was improperly brought to bear upon any juror, or (3) whether there was a mistake in entering the verdict onto the verdict form. A juror‘s affidavit or evidence of any statement by the juror may not be received on a matter about which the juror would be precluded from testifying.
I accept the majority‘s implicit suggestion that implied bias operates to exclude a broader category of individuals when raised as a for-cause challenge during voir dire than when raised for the first time on appeal. See Maj. op. at 11971 (suggesting follow-up questioning of Floyd Hilliard could have established implied bias mandating his excusal for cause); cf. Torres, 128 F.3d at 46-47 (noting the category of “inferable bias,” which unlike “implied bias” does not absolutely disqualify a juror but allows a trial judge to sustain a for-cause challenge without a showing of actual bias). I note, however, that the Supreme Court‘s explanations of implied bias have come in cases — McDonough and Phillips — in which the juror bias claim was raised for the first time on appeal.(1) whether the extrinsic material was actually received, and if so, how; (2) the length of time it was available to the jury; (3) the extent to which the jury discussed and considered it; (4) whether the material was introduced before a verdict was reached, and if so, at what point in the deliberations it was introduced; and (5) any other matters which may bear on the issue of . . . whether the introduction of extrinsic material [substantially and injuriously] affected the verdict.
Lawson v. Borg, 60 F.3d 608, 612 (9th Cir. 1995) (alterations in original) (quoting Bayramoglu v. Estelle, 806 F.2d 880, 887 (9th Cir. 1986)). Judge Berzon‘s dissent truncates prong five so as to suggest that there is no harmless error standard — and implies that the truncated version has been our court‘s test for “more than two decades.” Berzon, J., dissenting op. at 12020. In fact, the dissent‘s quotation of the five-factor test is taken from Bayramoglu, prong five of which was corrected in Lawson to take account of Brecht v. Abrahamson, 507 U.S. 619 (1993). Thus, the truncated quote in the dissent reads: “(5) any other matters which may bear on the issue . . . .” whereas the true version of prong five states: “any other matters which may bear on the issue of . . . whether the introduction of extrinsic material [substantially and injuriously] affected the verdict.” Lawson, 60 F.3d at 612 (alterations and ellipses in original).
Other facts we have considered that might suggest the potential prejudice of extrinsic information is diminished in a particular case include:
Judge Berzon‘s dissent claims that “federal and state appellate courts generally agree when engaging in de novo review, that a jury engages in the unconstitutional consultation of extrinsic material by introducing the Bible into deliberations during a capital trial.” Berzon, J., dissenting op. at 12011. For this proposition the lead (and only federal) citation is McNair v. Campbell, 416 F.3d 1291, 1308 (11th Cir. 2005) (recognizing “it is undisputed that jurors . . . considered extrinsic evidence during their deliberations” when the jury foreperson read aloud from a Bible), cert. denied, 126 S. Ct. 1828 (2006). However, the court in McNair held that the issue was procedurally defaulted, stated that even if it weren‘t there was no prejudice, and made the remark quoted in the parenthetical as a statement of fact.