Turney v. PughTurney v. Pugh
Argued and Submitted February 17, 2005—Seattle, Washington
Filed March 15, 2005
*Honorable Samuel P. King, Senior United States District Judge for the District of Hawaii, sitting by designation.
Mary C. Geddes, Assistant Federal Public Defender, Anchorage, Alaska, for the petitioner.
Douglas H. Kossler, Assistant Attorney General, Anchorage, Alaska, for the respondent.
OPINION
B. FLETCHER, Circuit Judge:
This case raises the perennially difficult issue of the proper balance between two of our society‘s most treasured guarantees: the fair administration of justice (including, most importantly, a defendant‘s right to a fair trial) and the right to freedom of expression. In this appeal from the denial of his petition for a writ of habeas corpus, petitioner Frank Turney alleges that the Alaska jury tampering statute under which he
I. BACKGROUND
In July 1994, prior to the commencement of jury selection in the Alaska criminal case State v. Hall in Fairbanks, jury-nullification proponent Frank Turney approached three members of the venire in the courthouse and told them to call the toll-free number of the Fully Informed Jury Association. Some of the individuals Turney lobbied were wearing badges that identified them as jurors. At the time, a person calling the number Turney publicized, 1-800-TEL-JURY, would have heard the following message:
Thank you for calling the Fully Informed Jury Association. FIJA is a nonprofit educational association that wants all Americans to know their rights as jurors to judge the law itself as well as the facts regardless of the instructions from the judge because jurors cannot be punished for their verdict. They are the final check and balance on our government, with more power than the President, Congress, or the Supreme Court. To talk to a live person, call 406-793-5550 or we will mail you more free information on jury veto power, if you tell us how you heard of us. Then name and spell your name, address, and zip code. Here‘s the tone. [TONE]
Juror Ellis, one of the individuals Turney approached, was selected for the petit jury in State v. Hall. At one point during
Turney was subsequently indicted for three counts of jury tampering and charged by information with two counts of criminal trespass in the first degree. Alaska‘s jury tampering statute provides:
A person commits the crime of jury tampering if the person directly or indirectly communicates with a juror other than as permitted by the rules governing the official proceeding with intent to
(1) influence the juror‘s vote, opinion, decision, or other action as a juror; or
(2) otherwise affect the outcome of the official proceeding.
The superior court denied Turney‘s motion to dismiss the charges. The Alaska Supreme Court permitted an interlocutory appeal and affirmed the denial of Turney‘s motion to dismiss. Turney v. State, 936 P.2d 533, 545 (Alaska 1997). Holding that the jury tampering statute “proscribes only speech intended to influence a juror in his or her capacity as a juror in a particular case,” and that such speech is unprotected, the court rejected Turney‘s overbreadth challenge to the law. Id. at 541.1
In 2001, Turney petitioned the federal district court in Alaska for a writ of habeas corpus, which the court denied. According to the court, the Alaska Supreme Court‘s overbreadth decision was fully in accord with United States Supreme Court jurisprudence, which makes clear that attempts to interfere with the administration of justice by improperly influencing jurors are not entitled to First Amendment protection. The court also rejected Turney‘s vagueness challenge and his argument that his Sixth Amendment rights were violated because the jury was not presented with every element of the crime of jury tampering. The district court denied a certificate of appealability, but we granted one with respect to the question of whether Alaska‘s jury tampering statute is overbroad. We therefore have jurisdiction under
II. ANALYSIS
A district court‘s denial of habeas relief is reviewed de novo. Beardslee v. Woodford, 358 F.3d 560, 568 (9th Cir. 2004). A habeas petitioner under
the adjudication of the claim (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
A state court decision is “contrary to” clearly established Supreme Court precedent where the court “applies a rule that contradicts the governing law set forth in [the Supreme Court‘s] cases,” or “confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [that] precedent.” Williams v. Taylor, 529 U.S. 362, 405-06 (2000). A state court decision is an “unreasonable application of” clearly established Supreme Court precedent where the court “identifies the correct governing legal principle from [the Supreme] Court‘s decisions but unreasonably applies that principle to the facts of the prisoner‘s case.” Id. at 413.
The “highly deferential standard for evaluating state-court rulings” reflects a respect for state courts as “part of a coequal judiciary” and as “competent interpreters of federal law.” Clark v. Murphy, 331 F.3d 1062, 1067 (9th Cir. 2003) (citations and internal quotation marks omitted). Though we review the district court‘s decision de novo, we “cannot grant relief . . . by conducting our own independent inquiry into whether the state court was correct as a de novo matter.” Yar-borough v. Alvarado, 124 S. Ct. 2140, 2150 (2004). Accordingly, for federal habeas relief to be granted, it is not enough that our independent review indicate that the state court decision was incorrect or clearly erroneous; the state court‘s application of clearly established Supreme Court precedent must be “objectively unreasonable.” Lockyer, 538 U.S. at 75-76.
In applying the standards of
[1] Under the doctrine of First Amendment overbreadth, a litigant may mount a facial attack on a statute that restricts protected speech even if the litigant‘s own speech is unprotected. Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973). The overbreadth must be substantial in order for the statute to be invalidated on its face; the fact that a court may conceive of a single impermissible application is insufficient to justify striking down the law. City of Houston v. Hill, 482 U.S. 451, 458 (1987).
When examining a law for overbreadth, a court‘s first task is to determine “whether the enactment reaches a substantial amount of constitutionally protected conduct.” Id. (citation and internal quotation marks omitted). Where a state statute challenged for overbreadth has been construed by the state‘s highest court, the scope of the statute is to be assessed in light of the construction that court has given. See Osborne v. Ohio, 495 U.S. 103, 113 (1990).
The Alaska Supreme Court‘s decision in Turney‘s case provides a detailed analysis of the state‘s jury tampering statute.
[2] In light of the Alaska Supreme Court‘s opinion, the scope of the jury tampering statute can be described as follows: the law criminalizes knowingly communicating with a juror, directly or indirectly, with the intent to influence the outcome of a specific case, unless such communication is permitted by the rules of the proceeding. We must now determine whether this prohibition sweeps in a substantial amount of speech that is constitutionally protected.
The Supreme Court has developed robust protections for speech concerning judicial proceedings. In a line of cases beginning with Bridges v. California, 314 U.S. 252 (1941), the Court reversed a series of contempt convictions for disseminating editorials and other public commentary about
[3] In these cases, the Court applied various versions of the then-evolving “clear and present danger” test to evaluate restrictions on speech concerning judicial proceedings. See id. at 271 (assessing “to what extent the substantive evil of unfair administration of justice was a likely consequence” of publication of the articles in question, and “whether the degree of likelihood was sufficient to justify summary punishment“); Pennekamp, 328 U.S. at 348 (assessing whether publications created “a clear and present danger to the fair administration of justice“); Harney, 331 U.S. at 378 (assessing whether publications created “an imminent and serious threat to the ability of the court to give fair consideration” to pending matters); Wood, 370 U.S. at 384-85 (following Bridges, Pennekamp, and Craig). In light of the subsequent evolution of the clear and present danger test, it can be extrapolated that, as a gen-
[4] However, speech to jurors about pending cases presents a special problem because of its grave implications for defendants’ right to a fair trial and the public‘s interest in fair and impartial justice. In Remmer v. United States, 347 U.S. 227 (1954), for example, the Supreme Court vacated the conviction of a defendant whose jury foreman was told by an unnamed person that he could profit by ensuring an acquittal. Id. at 228, 230. The Court set forth this broad rule: “In a criminal case, any private communication, contact, or tampering directly or indirectly, with a juror during a trial about the matter pending before the jury is, for obvious reasons, deemed presumptively prejudicial” unless made pursuant to court rules or other instructions. Id. at 229 (emphasis added). In Sheppard v. Maxwell, 384 U.S. 333 (1966), the Supreme Court found that habeas relief was warranted for a defendant tried and convicted in a “carnival atmosphere,” id. at 358, created by “inherently prejudicial publicity which saturated the community,” id. at 363. The Court explained: “The theory of our system is that the conclusions to be reached in a case will be induced only by evidence and argument in open court, and not by any outside influence . . . .” Id. at 351 (citation and internal quotation marks omitted). In fact, “[d]ue process requires that the accused receive a trial by an impartial jury free from outside influences.” Id. at 362 (emphasis added).
Even in the strongly speech-protective decisions of the Bridges-Wood line, the Court was careful to distinguish the publications it deemed protected under the First Amendment from speech aimed at improperly influencing jurors. As the Court observed in Bridges: “The very word ‘trial’ connotes
[5] Reading all of these cases together leads us to conclude that the First Amendment, while generally quite protective of speech concerning judicial proceedings, does not shield the narrow but significant category of communications to jurors made outside of the auspices of the official proceeding and aimed at improperly influencing the outcome of a particular case. What Alaska‘s jury tampering statute covers in the main, then, is speech that is not protected by the First Amendment.
Turney urges us to apply Brandenburg and hold that the State may not proscribe speech to jurors unless it is likely imminently to undermine the administration of justice. But the Supreme Court has never applied any version of the clear and present danger test to communications made knowingly to jurors with the intent to influence the outcome of a specific case. On the contrary, as we have observed, the Court has expressly distinguished such communications from the speech it has protected under the First Amendment and as a general matter has demonstrated little tolerance for improper communications with jurors. Thus the fact that the Alaska Supreme Court declined to apply Brandenburg to the jury tampering
[6] Despite its primary focus on unprotected speech, the Alaska statute is nonetheless overbroad if it covers a substantial amount of protected speech. “[T]he possible harm to society in permitting some unprotected speech to go unpunished is outweighed by the possibility that protected speech of others may be muted . . . .” Broadrick, 413 U.S. at 612. In his dissent from the affirmance of Turney‘s conviction on direct appeal, Alaska Court of Appeals Judge Mannheimer argued that, in spite of the state supreme court‘s limiting construction, the statute would still criminalize two substantial categories of protected speech: innocent advice to jurors and political demonstrations outside a courthouse.
With respect to the first example, it is doubtful that the statute as construed by the Alaska Supreme Court sweeps as broadly as Judge Mannheimer fears. In his dissent, Judge Mannheimer posited a detailed hypothetical in which a juror is told by her daughter to avoid reading the newspaper so she does not encounter publicity about the case on which she is serving as a juror, the juror‘s husband advises her to contact the police after she receives a threatening phone call, and a police officer instructs the juror to notify the trial judge of the phone call. Judge Mannheimer contended that all three of these contacts would be criminal under Alaska‘s jury tampering statute because all three speakers communicated with the juror, knowing she was a juror, with the intent to influence her actions as a juror in a particular case.
We disagree with Judge Mannheimer‘s analysis of this hypothetical, because one element of the statute (as construed) is not met: the intent to influence the outcome of a particular case. None of the three innocent jury communications posited by Judge Mannheimer is “intended to affect how the jury decides a specific case.” Turney, 936 P.2d at 540 (emphasis added); see also id. (“[I]t is the intent to influence
Judge Mannheimer‘s second example — political demonstrators, situated immediately outside a courthouse, shouting to everyone approaching the courthouse fervent opinions about the guilt or innocence of the defendant being tried inside — raises challenging questions about the proper balance between due process and freedom of expression. But we need not engage in the difficult task of balancing fundamental rights with respect to courthouse demonstrations, because the Supreme Court already has.
In Cox v. Louisiana, 379 U.S. 559 (1965), the Supreme Court considered the case of a man prosecuted for his involvement in a demonstration in front of a courthouse to protest the arrest of a group of students the previous day. Id. at 564-65. Though the Court reversed the defendant‘s conviction on due process grounds, see id. at 568-71, it refused to invalidate the statute under which he was convicted. The statute read:
Whoever, with the intent of interfering with, obstructing, or impeding the administration of justice, or with the intent of influencing any judge, juror, witness, or court officer, in the discharge of his duty pickets or parades in or near a building housing a court of the State of Louisiana shall be fined not more than five thousand dollars or imprisoned not more than one year, or both.
Id. at 560 (citation, internal quotation marks, and ellipsis omitted). Finding the statute to be “narrowly drawn to punish specific conduct that infringes a substantial state interest in
[7] While Alaska‘s statute is directed at a different set of communications than the Louisiana statute at issue in Cox, the former is no broader in its applicability to courthouse demonstrations than the latter. In fact, the Alaska statute‘s applicability to courthouse demonstrations is more limited than that of the Louisiana statute, as the Alaska law reaches only communications made to a juror with the intent to influence the outcome of a particular case, as opposed to all communications made “with the intent of interfering with, obstructing, or impeding the administration of justice, or with the intent of influencing any judge, juror, witness, or court officer, in the discharge of his duty.” Id. at 560 (citation and internal quotation marks omitted). Since the impact of the Louisiana statute on courthouse demonstrations did not render it facially unconstitutional, the Alaska statute‘s narrower impact on this class of speech probably does not render the Alaska statute facially unconstitutional either. The Alaska Supreme Court‘s rejection of Turney‘s overbreadth challenge was therefore not an objectively unreasonable application of Cox.
[8] A third area in which Alaska‘s statute could intrude into the realm of protected expression is the mass publication of political ideas. For example, the terms of the statute could be construed to apply to a person who takes out a newspaper or television advertisement supporting a particular outcome in a pending case (e.g., “OJ Was Framed!“). The ad is an indirect communication with the newspaper‘s or television station‘s entire audience. If that audience includes a juror in the case, the purchaser of the ad has communicated with a juror, other than as permitted by the rules of the proceeding, with the intent of influencing the outcome of a specific case.
[9] The Alaska Supreme Court has specifically addressed our concerns on this score. The court observed that the statute‘s implied scienter requirement would prevent application
[10] It is possible that Alaska‘s jury tampering statute may cover one or two instances of constitutionally protected speech to jurors. But a law may not be held invalid on its face “merely because it is possible to conceive of a single impermissible application.” Hill, 482 U.S. at 458 (citation and internal quotation marks omitted). The parties and state opinions in this case have identified only one swath of protected speech that the statute (as construed by the Alaska Supreme Court) could reach — political demonstrations at a courthouse about trials occurring therein — and the U.S. Supreme Court in Cox rejected a facial challenge to a statute that impinged upon such speech to a broader degree. We have not been able to identify any other applications of the Alaska statute that would reach a substantial amount of constitutionally protected speech. We must therefore conclude that it was not objectively unreasonable for the Alaska Supreme Court to hold that the jury tampering statute, as construed, is not overbroad in violation of the First Amendment.
III. CONCLUSION
When government restricts the expression of ideas, alarm bells should sound for all of us. The freedom of speech — including both a speaker‘s freedom to convey an idea, and a listener‘s freedom to receive it — is at the heart of the protections that our Constitution guarantees so that our society may remain a free one. The fact that judicial proceedings can be sensitive and controversial does not diminish the importance of vigorous national debate on matters concerning the administration of justice.
[11] The Alaska Supreme Court has carefully narrowed the state‘s jury tampering statute so that it operates in service of the latter constitutional command without substantially impinging on the former. Given this construction, the Alaska Supreme Court‘s conclusion that the jury tampering statute is not overbroad in violation of the First Amendment was not “a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.”
AFFIRMED.