Rushen v. Spain, 464 U.S. 114

Rushen v. Spain

464 U.S. 114

SCOTUS

1983

Check Treatment

RUSHEN, DIRECTOR, CALIFORNIA DEPARTMENT OF CORRECTIONS, ET AL. v. SPAIN

No. 82-2083

Supreme Court of the United States

Decided December 12, 1983

464 U.S. 114

PER CURIAM.

Respondent was one of six inmates involved in a 1971 San Quentin Prison escape that resulted in the death of three prisoners and three corrections officers. The State of California jointly tried respondent and five other prisoners on numerous charges, including murder, conspiracy, and assault. The prosecution attempted to show that the Black Panther Party had organized the escape attempt and to link respondent to the conspiracy through his membership in that Party. Respondent‘s defense was that state police had organized the breakout and ambushed the escapees to eliminate an important faction of the Black Panther Party.

During voir dire, the court admonished prospective jurors to reveal their associations, if any, with crimes of violence and their attitudes toward radical groups, including the Black Panthers. Patricia Fagan, who became a juror, testified at voir dire that she had no personal knowledge of violent crimes as a witness, victim, or otherwise—and that she did not associate the Black Panther Party with any form of violence. However, in the course of the 17-month-long trial, evidence was introduced of a crime, unrelated to those at issue in respondent‘s trial, of which juror Fagan had some knowledge. A defense witness identified a Black Panther named Pratt as a police informant involved in the alleged police plot. The prosecution sought to impeach this witness by introducing evidence that Pratt was in custody for the 1968 murder of a Santa Monica woman during the entire period at issue. This evidence triggered juror Fagan‘s recollection of the murder of a childhood friend, who was the woman Pratt had been convicted of killing.

Upon hearing the evidence about Pratt, juror Fagan twice went to the trial judge‘s chambers to tell him of her personal acquaintance with Pratt‘s 1968 murder victim. She told him that she feared that she might cry if the 1968 murder were explored further at trial. The judge asked her on each occasion whether her disposition of the case would be affected. She assured him that it would not. The judge told her not to be concerned and that the matter probably would not be mentioned again. He made no record of either conversation, and he did not inform the defendants or their counsel about them.

At the close of trial, the jury found respondent guilty of two counts of murder and of conspiracy to escape, and acquitted him of the remaining charges. The jury also convicted two other defendants of assault, and found insufficient evidence to support the numerous remaining charges. Respondent was sentenced to life imprisonment.

Counsel for respondent subsequently learned of the ex parte communications between judge and juror and moved for a new trial. At a hearing on the motion, juror Fagan testified that she had not remembered her friend‘s death during voir dire and that her subsequent recollection did not affect her ability impartially to judge respondent‘s innocence or guilt. She admitted telling other jurors that she personally knew Pratt‘s 1968 murder victim, but denied making any disparaging remarks about the Black Panther Party. The trial judge concluded that the ex parte communications “lacked any significance” and that respondent suffered no prejudice therefrom. See App. C to Pet. for Cert. 22. Accordingly, he denied the motion for new trial.

The California Court of Appeal affirmed the conviction. It found the ex parte communication to be federal constitutional error that was harmless “beyond a reasonable doubt” because the jury‘s deliberations, as a whole, were unbiased. Id., at 28-35. The California Supreme Court denied review.

Respondent then petitioned for a writ of habeas corpus in Federal District Court. The District Court issued the writ, ruling that the ex parte communications between judge and juror violated both respondent‘s right to be present during all critical stages of the proceedings and his right to be represented by counsel.

543 F. Supp. 757 (ND Cal. 1982). Furthermore, the District Court held that automatic reversal was necessary because the absence of a contemporaneous record made intelligent application of the harmless-error standard impossible. Alternatively, it concluded that a post-trial hearing could not establish that the constitutional error was harmless beyond a reasonable doubt. Thus, it found that respondent‘s conviction had to be vacated because of the state court‘s failure to hold a contemporaneous hearing about, or to make a contemporaneous record of, the ex parte communication. The Court of Appeals for the Ninth Circuit affirmed on the basis that an unrecorded ex parte communication between trial judge and juror can never be harmless error.¹ Judgment order reported at .

We emphatically disagree. Our cases recognize that the right to personal presence at all critical stages of the trial and the right to counsel are fundamental rights of each criminal defendant.² “At the same time and without detracting from

the fundamental importance of [these rights], we have implicitly recognized the necessity for preserving society‘s interest in the administration of criminal justice. Cases involving [such constitutional] deprivations are [therefore] subject to the general rule that remedies should be tailored to the injury suffered and should not unnecessarily infringe on competing interests.”

United States v. Morrison, 449 U. S. 361, 364 (1981); see also . In this spirit, we have previously noted that the Constitution “does not require a new trial every time a juror has been placed in a potentially compromising situation . . . [because] it is virtually impossible to shield jurors from every contact or influence that might theoretically affect their vote.” . There is scarcely a lengthy trial in which one or more jurors do not have occasion to speak to the trial judge about something, whether it relates to a matter of personal comfort or to some aspect of the trial. The lower federal courts’ conclusion that an unrecorded ex parte communication between trial judge and juror can never be harmless error ignores these day-to-day realities of courtroom life and undermines society‘s interest in the administration of criminal justice.³

This is not to say that ex parte communications between judge and juror are never of serious concern or that a federal court on habeas may never overturn a conviction for prejudice resulting from such communications. When an ex parte communication relates to some aspect of the trial, the trial judge generally should disclose the communication to counsel for all parties.⁴ The prejudicial effect of a failure to do so, however, can normally be determined by a post-trial hearing. The adequacy of any remedy is determined solely by its abil-ity to mitigate constitutional error, if any, that has occurred. See, e. g.,

United States v. Morrison, supra, at 365; . Post-trial hearings are adequately tailored to this task. See, e. g., ; .

The final decision whether the alleged constitutional error was harmless is one of federal law.

Chapman v. California, 386 U. S. 18, 20-21 (1967). Nevertheless, the factual findings arising out of the state courts’ post-trial hearings are entitled to a presumption of correctness. See 28 U. S. C. § 2254(d); . The substance of the ex parte communications and their effect on juror impartiality are questions of historical fact entitled to this presumption. Thus, they must be determined, in the first instance, by state courts and deferred to, in the absence of “convincing evidence” to the contrary, by the federal courts. See . Here, both the State‘s trial and appellate courts concluded that the jury‘s deliberations, as a whole, were not biased. This finding of “fact“—on a question the state courts were in a far better position than the federal courts to answer—deserves a “high measure of deference,” , and may be set aside only if it “lack[s] even ‘fair support’ in the record.” . The absence of a contemporaneous recording will rarely deprive the finding of “even fai[r] suppor[t] in the record.” See ibid.

The post-trial hearing in this case created more than adequate support for the conclusion that juror Fagan‘s presence on the jury did not prejudice respondent. The 1968 murder was not related to the crimes at issue in the trial. Pratt was not connected to any of the offenses for which respondent was convicted, and he did not testify at the trial. Juror Fagan never willfully concealed her association with the Santa Monica crime, and she repeatedly testified that, upon recollection, the incident did not affect her impartiality.⁵ She turned to the most natural source of information—the trial judge—to disclose the information she should have recalled but failed to recall during voir dire. Their ex parte communication was innocuous. They did not discuss any fact in controversy or any law applicable to the case. The judge simply assured her that there was no cause for concern. Thus, the state courts had convincing evidence that the jury‘s deliberations, as a whole, were not biased by the undisclosed communication of juror Fagan‘s recollection. The lower federal courts should have deferred to this presumptively correct state-court finding and therefore should have found the alleged constitutional error harmless beyond a reasonable doubt.⁶

Accordingly, we grant the motion of respondent for leave to proceed in forma pauperis and the petition for certiorari, vacate the judgment of the Court of Appeals, and remand the case for further proceedings consistent with this opinion.

It is so ordered.

JUSTICE BRENNAN dissents from this summary disposition. He would grant the petition for certiorari and set the case for oral argument.

JUSTICE STEVENS, concurring in the judgment.

Respondent was convicted of several serious offenses in a state trial during which the trial judge learned of a basis for challenging the impartiality of a juror from ex parte, unrecorded conversations with the juror; the judge did not sua sponte inform the parties of the occurrence or the substance of the conversations. Respondent contended, and the courts below held, that he was thereby deprived of liberty without due process of law and entitled to a writ of habeas corpus. Assuming that the respondent was deprived of his right to be present during a critical stage of his trial and his right to

port in the record” but on its own evaluation of the credibility of the witnesses, see, e. g., post, at 145, n. 29, and a concern about the potential for prejudice in the underlying circumstances.

Such an approach plainly fails to adhere to the commands of the applicable statute. Title 28 U. S. C. § 2254(d) provides that the state courts’ determinations about witness credibility and inferences to be drawn from the testimony were binding on the District Court and are binding on us. See

Marshall v. Lonberger, 459 U. S. 422, 434 (1983). Title 28 U. S. C. § 2254(d) requires that a federal habeas court more than simply disagree with the state court before rejecting its factual determinations. It must conclude that the findings “lac[k] even ‘fair support’ in the record.” . That statutory test is satisfied by the existence of probative evidence underlying the California Court of Appeal‘s conclusion that the jury‘s impartiality was unimpaired “beyond a reasonable doubt.” Ibid. Thus, our holding necessarily follows from the state courts’ findings of fact and from the presumption of correctness accorded to those findings.

effective assistance of counsel, the Court vacates on the ground that the state court‘s conclusion that the juror was impartial has fair support in the record and hence the constitutional deprivations were harmless beyond a reasonable doubt.

Most of my colleagues “emphatically disagree”¹ with the suggestion that a simple test can be used to determine whether an ex parte communication between a trial judge and a juror makes a subsequent jury verdict constitutionally infirm. Nevertheless, I believe both the majority and the dissents gloss over the serious legal issues presented by this case.

The majority concludes that the lower federal courts had a duty to find the alleged constitutional error harmless beyond a doubt because of the state-court conclusion that the jury was impartial. Ante, at 121. JUSTICE MARSHALL has persuasively shown, however, that there is a reasonable doubt concerning juror Fagan‘s impartiality. That doubt forecloses reliance on the harmless error standard enunciated in

Chapman v. California, 386 U. S. 18 (1967),² but that doubt does not require that this petition for a writ of habeas corpus be granted.

In order to evaluate the significance of an alleged constitutional deprivation, it is essential that it first be correctly

identified.³ The alleged deprivation in this case has been characterized in three ways: (1) a denial of the defendant‘s right to be present at every critical stage of a criminal trial, (2) a denial of the right to effective assistance of counsel at trial, (3) a denial of the right to be tried by an impartial jury.⁴

If respondent had established any of these deprivations, he would have sustained his burden of showing essential unfairness and would be entitled to the issuance of a writ of habeas corpus.

The question whether respondent was deprived of his right to be tried by an impartial jury is not before us, for respondent did not raise this claim in his habeas petition, choosing not to contend that juror Fagan was biased, either as a matter of law or as a matter of fact.

543 F. Supp. 757, 765 (ND Cal. 1982). The majority, however, passes on this question in concluding that the assumed deprivations of the fundamental constitutional rights to counsel and presence at trial were harmless error.

I think it quite clear that the mere occurrence of an ex parte conversation between a trial judge and a juror does not constitute a deprivation of any constitutional right. The defense has no constitutional right to be present at every inter-

Notes

Respondent also argued that his due process right to be presumed innocent was violated when he was forced to stand trial shackled and chained. Neither the District Court nor the Court of Appeals reached this issue. Given our disposition of the case, this issue only remains to be resolved on remand. Compare: Fagan‘s subsequent descriptions of the intimacy of her relationship with Olson varied somewhat. The California Court of Appeal resolved those discrepancies as follows: “Patricia Fagan had from the age of six or seven been a ‘good,’ ‘close,’ but not ‘best’ friend of Carolyn Olson. . . . Fagan cared for Olson‘s daughter on a daily basis while Olson was attending U. C. L. A. in about 1962. At this time, the two women rarely visited socially. Fagan knew Olson‘s husband.” , reprinted in App. C to Pet. for Cert. 14-15 (hereinafter App. C). In the absence of “convincing evidence” to the contrary, the foregoing findings—as well as all other findings by the state trial court and state appellate court that pertain to matters of historical fact—were binding on the District Court and are binding on us. ; (per curiam).

Petitioners have apparently conceded, in both federal and state court, that the undisclosed ex parte communications established federal constitutional error. See Pet. for Cert. 29-31. We acknowledge that the trial judge promptly should have notified counsel for all parties after the juror approached him. Whether the error was of constitutional dimension in this case is not before us. Because we find that no actual prejudice was shown, we assume, without deciding, that respondent‘s constitutional rights to presence and counsel were implicated in the circumstances of this case. JUSTICE STEVENS suggests that the only constitutional right implicated in this case is a possible due process right to a midtrial hearing on the subject of the juror‘s impartiality. See post, at 126 (STEVENS, J., concurring in judgment). Had the State raised the underlying constitutional right as an issue in the courts below and in the petition for certiorari, this approach might merit consideration. But the case came to us alleging harmless violations of the right to be present during all critical stages of the proceedings and the right to be represented by counsel, and we therefore analyze only that challenge. These rights, as with most constitutional rights, are subject to harmless-error analysis, see, e. g., (right to counsel); (right to presence), unless the deprivation, by its very nature, cannot be harmless. See, e. g., . As the Court has often stated, “before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.” . “The circumstances of the killing, as known to [Fagan], were that Olson and her husband were playing tennis when two people demanded their money, ordered them to lie down, and shot them.” ; see also Tr. of Postconviction Hearing 23958 (Tr.).

Thus, we have refused, on facts more troublesome than these, to find inherent bias in a verdict when a state trial court determined “beyond a reasonable doubt” that a juror‘s out-of-court action did not influence the verdict. In , a criminal defendant contended that he had been denied due process because, during his state-court trial, one of the jurors applied to the prosecutor‘s office for a job as an investigator. The application was not brought to the parties’ attention until sometime after the verdict was rendered. The state court held a post-trial hearing and, relying on the juror‘s own testimony, found “beyond a reasonable doubt” that the juror‘s action had not influenced the verdict. We concluded that, in the circumstances of that case, it would not be proper to impute bias in the verdict or to find a post-trial hearing inadequate as a remedy for the alleged due process violation. Id., at 219. The facts here involve no inference of juror misconduct or third-party influence, and therefore are of far less concern than the conduct at issue in Smith. See infra, at 120-121. Thus, a post-trial hearing is adequate to discover whether respondent was prejudiced by the undisclosed communications about juror Fagan‘s recollection. As I have previously explained, claims of constitutional error are not fungible. Neither the judge‘s preliminary account of this first meeting, nor Fagan‘s first postconviction description of the encounter indicated that Fagan‘s ability to remain impartial had been discussed. In their subsequent accounts, however, both parties maintained that the judge had questioned Fagan on this point and Fagan had indicated that her deliberations would be unaffected. The state appellate court credited Fagan‘s and the judge‘s later testimony, see , and the District Court was bound by the state court‘s assessment of the conflicting evidence, see n. 1, supra.

See, e. g., (although violation of Federal Rule of Criminal Procedure 43 may be harmless error, additional instructions from judge to jury, without notification to defendant or his counsel, is not); (undisclosed instructions from judge to jury violate nonconstitutionally based rules of orderly trial procedure); (same). The California Court of Appeal, the first court to confront respondent‘s claim that he had been deprived of liberty without due proces of law, stated that the issue before it arose “at the confluence of three streams of constitutional doctrine, flowing from the right of defendants in criminal proceedings to trial by an impartial jury, their right to be personally present during the proceedings, and their right to be represented by an attorney.” App. C to Pet. for Cert. 22-23. Instead of analyzing the serious questions the case presents, however, the court merely assumed that “there was fed- Tr. 23920.

A juror may testify concerning any mental bias in matters unrelated to the specific issues that the juror was called upon to decide and whether extraneous prejudicial information was improperly brought to the juror‘s attention. See Fed. Rule Evid. 606(b); . But a juror generally cannot testify about the mental process by which the verdict was arrived. See . Thus, the California Court of Appeal refused to consider certain testimony in arriving at its decision that respondent had not suffered prejudice “beyond a reasonable doubt.” App. C. to Pet. for Cert. 33. The District Court improperly refused to defer to the California Court of Appeal‘s sensitive review of this evidence. See . Indeed, the case would not be very different if defense counsel had learned of the potential bias in the course of the trial, and the trial judge denied a motion for a midtrial hearing on the question, but held a post-trial hearing. Affidavit of Patricia Fagan, Sept. 27, 1976, District Court Record 5481-5482 (R.); see also .

Although JUSTICE MARSHALL‘s dissent purportedly agrees that the District Court was obliged to defer to the California Court of Appeal‘s finding that the jury‘s deliberations were not biased if that finding had “even ‘fair support’ in the record,” post, at 143, its critique of the circumstances underlying that finding proves otherwise. The dissent concedes, albeit grudgingly, that each circumstance the California Court of Appeal relied on in concluding “beyond a reasonable doubt” that the jury‘s impartiality was not impaired was probative. See post, at 143-148. But the dissent, like the District Court below, argues that each circumstance is defective either because it depends on the juror‘s own statements concerning her impartiality or because “the potential for impairment of the jury‘s impartiality [in each] was considerable.” See post, at 148. Thus, the dissent, like the District Court, bases its conclusion not on a “lack of even fair sup- If respondent had a fundamental due process right to notice of the substance of the communication between the judge and the juror and an opportunity for a hearing on the matter during midtrial, the reason for recognizing such a right would stem from the fact that juror bias questions are inherently speculative and that the meaningful time for a hearing on such questions is at a point in time when doubts about impartiality can be easily remedied by replacing the juror with an alternate. A deprivation of a right with such a rationale could not be held to be harmless error. See, e. g., (“[P]articular types of error have an effect which is so devastating or inherently indeterminate that as a matter of law they cannot reasonably be found harmless“) (Harlan, J., dissenting). This, in substance, is what the lower courts held. R. 5482; see also .

; id., at 42-44 (Stewart, J., concurring in result); id., at 52, and n. 7 (Harlan, J., dissenting); , at 10.

Whether application of this analysis is appropriate with respect to the purported right-to-presence violation is largely a question of semantics. The right to be present at trial is rooted in the Confrontation Clause. . If a defendant were denied ac- Respondent‘s conviction on the two counts of murder was based upon a theory of vicarious liability. It was not alleged that respondent himself killed anyone; rather, the prosecution argued that respondent had joined a conspiracy between Jackson and one Bingham to escape and that the murders were probable consequences of that conspiracy. All of respondent‘s convictions thus turned upon the strength of his association with Jackson, and it was that association that the prosecutor sought to establish by stressing respondent‘s and Jackson‘s common membership in the Black Panther Party.

The majority uses the phrase the jury‘s deliberations “as a whole” were not biased. Ante, at 120, 121. Unless one can say beyond a reasonable doubt that juror Fagan‘s deliberations were not improperly influenced by her knowledge of the murder of her friend at the hands of a Black Panther, I fail to see how one can conclude that the jury‘s deliberations “as a whole” were not biased. Hence, I fail to see the point in not focusing on Fagan in this analysis. Respondent has never made any serious effort at establishing that the other jurors’ knowledge of the murder of Fagan‘s friend directly influenced their thoughts about the case. I cannot believe that the majority means to imply that an additional showing of prejudice is required after one of the jurors is established to be prejudiced. Surely, a defendant has a right to impartiality on the part of all of the jurors, and a violation of that right is plainly not susceptible to a harmless error analysis. See . Tr. 23944.

, at 23944-23945.

, at 23945.

Section 1150(a) provides:

“Upon an inquiry as to the validity of a verdict, any otherwise admissible evidence may be received as to statements made, or conduct, conditions, or events occurring, either within or without the jury room, of such a character as is likely to have influenced the verdict improperly. No evidence is admissible to show the effect of such statement, conduct, condition, or event upon a juror either in influencing him to assent to or dissent from the verdict or concerning the mental processes by which it was determined.”

The distinction drawn by the California rules between evidence of facts bearing upon the existence of any extraneous influence on the jury‘s deliberations and evidence of the mental processes by which the jury reached a result is consistent with that drawn in most other jurisdictions. See, e. g.,

Mattox v. United States, 146 U. S. 140, 149 (1892).

The majority states that, at the postconviction hearing, “Fagan testified that . . . her subsequent recollection [of her friend‘s death] did not affect her ability impartially to judge respondent‘s innocence or guilt.” Ante, at 116. Later, the majority makes much of the fact that Fagan “repeatedly testified that, upon recollection, the incident did not affect her impartiality.” Ante, at 120-121. No such testimony can be found in the transcript of the postconviction hearing. The prosecutor and trial judge took care to prevent Fagan from answering any questions that pertained to the reasoning or motivations that induced her to conclude that respondent was guilty. See, e. g., Tr. 23965-23971. Indeed, Fagan did not even testify as to what she had told the judge during their ex parte meetings concerning the effect of her recollection upon her disposition toward the case. The only testimony at the hearing that pertained to their discussion of her impartiality was provided by the trial judge. His account of their conversations indicated (at most) that Fagan had assured him that she would remain impartial when it came time to render a verdict. See id., at 23919-23920. The judge‘s description of what Fagan said during the meetings is corroborated by the affidavit that Fagan submitted to the trial court, see supra, at 133-134, and n. 5. But nothing in the record indicates whether Fagan was able to keep her promise that she would remain unbiased.

The District Court accurately characterized the state trial judge‘s finding as an “implicit” conclusion that any error was harmless. See , affirmance order, .

The Court of Appeal‘s opinion is somewhat ambiguous on this issue. At one point the court suggested that it was simply assuming for the sake of argument that respondent had demonstrated federal constitutional error. See . At other points, the court seemed to vouch for the proposition that constitutional error had been shown. See id., at 23, n. 4, and 26-27. In any event, the District Court was obliged to determine this issue de novo.

, reprinted in App. A to Pet. for Cert. 5. The majority characterizes the holding of the Court of Appeals as a ruling that “an unrecorded ex parte communication between trial judge and juror can never be harmless error.” Ante, at 117. Though the Court of Appeals’ decision is not altogether clear on this point, its reference to “this case” strongly suggests that it intended to rule only that, on the facts of the controversy before it, the potential for harm to respondent entailed by the secret meetings between Fagan and the trial judge was so great that something more than a postconviction hearing five months after the incidents in question was necessary to establish that the constitutional error was harmless. If the majority is truly concerned lest the Court of Appeals’ memorandum opinion be read more broadly, the proper disposition of the case would be to remand it with instructions to the Court of Appeals to clarify the basis of its decision, not summarily to vacate the decision on the ground that “[t]he lower federal courts should have . . . found the alleged constitutional error harmless beyond a reasonable doubt.” Ante, at 121.

The majority relies upon an assumption that “[t]here is scarcely a lengthy trial in which one or more jurors do not have occasion to speak to the trial judge about something, whether it relates to a matter of personal comfort or to some aspect of the trial.” Ante, at 118. Whatever one thinks of the accuracy of the majority‘s generalization regarding the frequency of contacts between judges and jurors, it has little to do with this case. At issue here is a pair of ex parte meetings between a trial judge and a juror in which the juror revealed to the judge facts that impinged significantly upon the juror‘s impartiality—i. e., that bore upon the juror‘s ability fairly to assess the defendant‘s guilt or innocence. The question whether the judge had a constitutional obligation to tell the defendant or his lawyer what the juror had told him should not depend upon how often jurors approach judges to talk about matters of “personal comfort.” To the extent that the majority means to imply that judges and jurors may freely engage in ex parte discussions of “aspect[s] of the trial,” I emphatically disagree.

The severity of the risk that Fagan would be unable impartially to assess the evidence presented to her—a risk that should have been apparent to the trial judge even at midtrial—distinguishes this case from

Smith v. Phillips, 455 U. S. 209 (1982). Contrary to the suggestion of the majority, ante, at 119, n. 3, the facts of this case are significantly more “troublesome” than those of . In , the defendant and his counsel learned at voir dire that the juror in question hoped to pursue a career in law enforcement; defense counsel was nevertheless able to satisfy himself that the juror was unbiased and should be seated. At no point did the juror act in a way suggesting that his emotional outlook on the case was different from the outlook with which he began. Moreover, there was no direct link in between the nature of the bias to which the juror was vulnerable and the substance of the contested issues in the case. By contrast, in the instant case, Fagan‘s revived memories were flatly inconsistent with her testimony at voir dire, Fagan clearly indicated to the judge the degree to which she was “unsettled” by her recollections, and the nature of the potential prejudice to which she was exposed bore directly upon one of the principal disputed issues in the trial—namely, the existence and scope of a conspiracy among various members of the Black Panther Party inside and outside the prison to engineer Jackson‘s escape.

Smith is readily distinguishable on other grounds as well: In contrast to this case, the trial judge in did not learn of the circumstances that threatened the impartiality of the juror until after the defendant had been convicted. Again in contrast to this case, the defendant and his counsel in were not denied access to any meetings between the trial judge and a juror. Thus, two of the constitutional rights implicated in this case—the right to the assistance of counsel and the right to be present at critical stages of the trial, see supra, at 138-140—were not at issue in . For an additional distinction between the two cases, see n. 23, infra.

There are good reasons to doubt the premise of the majority‘s opinion—namely, that a determination, based solely on inferences drawn from objective circumstances, that a juror was not biased is no different from any other factual determination for the purpose of applying the standard of review embodied in 28 U. S. C. § 2254(d). As the California Court of Appeal acknowledged when it phrased its finding as a ruling that, “beyond a reasonable doubt,” Fagan was not prejudiced, the determination of this question is tantamount to a determination of the ultimate question whether the constitutional error was harmless, which is pre-eminently a matter of federal law, see . If federal courts are obliged to defer to state-court findings of this order, the capacity of the federal courts through habeas proceedings to remedy deprivations of constitutional rights in state criminal trials will be substantially undercut. Sensitivity to these problems perhaps explains the majority‘s decision to place in quotation marks its description of a determination of jury bias as a question of “fact.” Ante, at 120; see also , and n. (O‘CONNOR, J., concurring) (In certain “exceptional situations,” in which objective circumstances cast considerable doubt on the impartiality of a juror, the federal courts may be obliged to apply a doctrine of “implied bias” and, in so doing, “need not be deterred by 28 U. S. C. § 2254(d)“). The status under § 2254(d) of a state court‘s ruling regarding a juror‘s impartiality is precisely the kind of complex and important federal question that merits plenary consideration by this Court. Insofar as that question is critical to the outcome of this case, it is irresponsible in my view for the majority to attempt to resolve the issue without even the benefit of briefing by the parties.

As the majority notes, the facts of this case bear some resemblance to those of , and the majority relies upon the result reached in to buttress its ruling that the District Court in the instant case should not have issued the writ of habeas corpus. Ante, at 118-119, and n. 3. I remain persuaded that the decision in was incorrect. See (MARSHALL, J., dissenting). It should be emphasized, however, that for two reasons does not control this case. First, as indicated above, the potential impact in this case of events occurring in midtrial upon the impartiality of the jury is substantially greater than was true in . See n. 20, supra. Second, the posture in which the question of jury bias arose in is fundamentally different from the posture in which that issue is presented in this case. In , the existence of a constitutional violation turned upon proof of actual impairment of the impartiality of the jury. The Court ruled that only if the defendant were able affirmatively to prove bias on the part of a juror could he establish a violation of due process. Concluding that the state court‘s determination that the defendant had not proved bias was supported by the record and therefore was not vulnerable to review by the District Court, the majority in held that no “constitutional violation” had been established and that the writ should not have issued. . In this case, by contrast, a constitutional violation occurred when the trial judge failed to inform respondent, defense counsel, or the prosecutor of what had transpired during the judge‘s ex parte meetings with Fagan. See supra, at 138-141. Thus, the District Court was obliged to issue the writ unless the State could prove, beyond a reasonable doubt, that respondent had suffered no injury as a result of the judge‘s constitutional error. The language used by the Court in to define the burden a criminal defendant must sustain in order to prove an abridgment of his constitutional right to an impartial jury thus has no relevance to this case.

; see also id., at 35.

, at 30-31.

, at 31-32.

It is worth noting that Fagan had powerful reasons for wanting to believe that she would be able to remain impartial. Her sudden recollection of the circumstances surrounding her friend‘s murder occurred 13 months into the trial. Fagan was aware that her revived memory rendered untrue her responses at voir dire concerning her lack of personal knowledge of violence and her impression of the Black Panther Party. Most likely, she felt guilty that she had not recalled earlier the fact that Olson had been murdered by a Black Panther, and feared that the result of her lapse would be the declaration of a mistrial and the loss of 13 months of work. Under such conditions, it would have required extraordinary self-knowledge and courage for Fagan to tell the trial judge that she would not be able to examine impartially the evidence presented to her.

Those statements pertained to Fagan‘s beliefs concerning such matters as the likelihood that a person who grew up in the Watts area would “black out” when confronted with violent crime and the probability that a criminal defendant who relies upon psychiatric testimony is guilty of the crime for which he is charged. See, e. g., Tr. 23966, 23968.

See Tr. 23957, 23977-23978. At one point in its discussion, the Court of Appeal argued that, “at the motion for a new trial where all appellants and their counsel were present, she testified that she associated the Black Panther Party with ‘worthwhile activities’ such as a breakfast program for school children carried on by the party.”

People v. Spain, App. C, at 32. The court provides no citation for this statement, and no such statement appears in the transcript of Fagan‘s examination at the hearing. In the affidavit she submitted to the trial court after the verdict, Fagan did make the following remark, to which the Court of Appeal may have been referring:

“My answers to [respondent‘s counsel‘s] questions [at voir dire] regarding the Black Panther Party . . . were and still are true and correct. My knowledge of the Black Panther Party was primarily limited to a breakfast program for school children conducted by that organization in the Los Angeles Area. Therefore, I associate the Black Panther Party with worthwhile activities.” R. 5482.

It is clear from the context that the foregoing statement pertained principally to Fagan‘s honesty at voir dire (and was designed to protect her from criminal prosecution for violation of her oath of office). At most, the statement bears only tangentially on the issue of whether Fagan‘s recollection of her friend‘s murder affected her determination that respondent had joined with other members of the Black Panther Party in plotting the escape attempt.

, at 33-35.

From this perspective, the trial judge‘s failure to tell defense counsel of the ex parte meetings with Fagan is analogous to an order by a trial judge that defense counsel may not conduct a survey of the community from which the venire is drawn to determine the prevailing attitudes of the residents to certain controversial issues that may arise during the trial. Surely such an order would be deemed prejudicial error.

JUSTICE STEVENS suggests that the constitutional error here was mischaracterized as a deprivation of the right to counsel and to be present at critical stages of the trial, rather than as a denial of the right to be tried by an impartial jury. Even assuming that he is correct, the fact is, as the Court notes, see ante, at 117-118, n. 2, that petitioners have conceded and the courts below have assumed that respondent‘s constitutional rights to counsel and to be present at critical stages of the trial were violated. On the basis of that assumption, the dispute has centered on whether respondent was harmed by that error, in particular whether respondent was harmed by juror bias. In light of the framework in which the analysis has been cast, JUSTICE STEVENS’ view that the question whether juror Fagan was biased has not been raised appears to me to be unnecessarily narrow.