# Fields v. Brown

> Court of Appeals for the Ninth Circuit · September 10, 2007 · 503 F.3d 755

URL: https://www.frixlaw.com/law-library/cases/1218506

## Case

- **Full name:** 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
- **Court:** Court of Appeals for the Ninth Circuit
- **Decided:** September 10, 2007
- **Citations:** 503 F.3d 755; 2007 WL 2580788
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Schroeder, Reinhardt, Kozinski, O'Scannlain, Rymer, Thomas, Silverman, McKeown, Wardlaw, Gould, Berzon, Tallman, Clifton, Callahan, Bea
- **Cited by:** 140 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/1218506

## How later opinions describe it (automated extraction)

- holding that an individual’s consultation of the Bible, which he used to create a list of reasons “for” and “against” the death penalty that he'shared with his fellow jurors during the penalty phase deliberations, did not have a substantial and injurious influence in determini…
- holding, in a case involving allegations of robbery, rape and murder, in which the juror answered questions honestly at voir dire, that bias should not be implied where a juror’s wife had been beaten, raped and robbed two years prior to voir dire
- holding, in a case involving allegations of robbery, rape and murder, where the juror answered questions honestly at voir dire, that bias should not be implied because juror’s wife had been raped and robbed two years prior to voir dire
- stating that the prohibition from Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), of creating a “new rule” on habeas review does not preclude an argument that the Bible is an external influence
- explaining 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 rape case

## Opinion text

503 F.3d 755 (2007)
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.
Nos. 00-99005, 00-99006.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted December 13, 2006.
Filed September 10, 2007.
*756 *757 *758 *759 *760 David S. Olson, Kulik, Gottesman, Mouton & Siegel, Sherman Oaks, CA, 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, CA, for the respondent-appellee/cross-appellant.
Before: MARY M. SCHROEDER, Chief Judge, and STEPHEN REINHARDT, ALEX KOZINSKI, DIARMUID F. O'SCANNLAIN, PAMELA ANN RYMER, SIDNEY R. THOMAS, BARRY G. SILVERMAN, M. MARGARET McKEOWN, KIM McLANE WARDLAW, RONALD M. GOULD, MARSHA S. BERZON, RICHARD C. TALLMAN, RICHARD R. CLIFTON, CONSUELO M. CALLAHAN, and CARLOS T. BEA, Circuit Judges.
Opinion by Judge RYMER; Partial Concurrence and Partial Dissent by Judge GOULD; Dissent by Judge BERZON.
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 *761 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-appeals from these rulings en banc, we consider whether Fields was denied a fair trial on account of juror bias, on which the district court held an evidentiary hearing at our request, and whether his sentence should be set aside because of the jury's consideration of the foreperson's notes about the "pros" and "cons" of capital punishment that included Biblical references.
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 , 197 Cal.Rptr. 803 , 673 P.2d 680 (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" by writing a check for less than the balance of her account. Later on the 28th, Debbie, a 16 year-old girl who was the former girlfriend of Fields's brother, went to Fields's residence and saw Rosemary and Fields go into his bedroom. Fields came out and asked Debbie if she wanted to see how he punished his girlfriends. Debbie said "no," but Fields pushed her to the door where she saw Rosemary naked and tied to the bed. Then Fields went into the bedroom with a gun and told Rosemary that he would kill her if she did not give him money, and that he was going to take her on a long trip "and she wasn't never going to come back." That afternoon, Debbie saw Fields, Gail, and Rosemary get into a car Gail borrowed from her godfather and drive away. Fields and Rosemary were in the back seat. As Gail was driving toward the Santa Monica Freeway, she heard a gunshot and heard Rosemary cry out: "Oh, God." Fields told Gail to keep on driving, *762 and fired four more shots. Still, Fields said Rosemary was not dead and he needed to be sure she was, so he hit her in the head with a blunt object. Then Gail drove to an alley near the Fields residence where Fields left Rosemary's body. Debbie saw Fields and Gail return without Rosemary; she asked about her, and Fields replied, "She was going on a long trip and was never coming back." The car that was returned to Gail's godfather had two bullet holes in it; a bank official verified the $222 check from Rosemary to Gail; and Rosemary's purse, driver's license, and a torn check from Rosemary to Gail for $185 were found in Fields's residence.
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 alley near his residence, took the gun from Blackwell, and directed Barnett and Smith into the house and to the upstairs bedroom. Fields ordered Barnett to remove her clothes and took $50 hidden in her stockings. He inspected her for venereal disease and told her to do whatever Blackwell wanted; Blackwell raped her. Meanwhile, Fields took Smith into another room, compelled her to disrobe, and took about $100 from her. The group then assembled in the same room and smoked marijuana. Fields told Barnett to have oral sex with Smith, which she did, then ordered her to perform anal sex, which she refused. For this, Fields struck Cynthia with the gun, breaking her jaw as well as the handle of the gun. Fields raped Gwendolyn, while Blackwell raped Cynthia. Gwendolyn passed out but when she awoke, she saw Blackwell holding a knife and heard Fields tell him, "Man, go and cut the bitch up. You can't just leave her laying there." Fields told Cynthia to clean up the blood from Gwendolyn's injury. After Fields ordered the women to go with him and Blackwell to find more prostitutes to rob, and they did, he released them. The police found Gwendolyn's wig and blouse and Cynthia's identification card, as well as extensive blood stains on the mattress where Gwendolyn had lain.
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 throwing herself backwards through a closed window in the bedroom, but Fields pulled her back in. The next morning Fields told Colleen he would let her go if she would buy marijuana for him, which she did. The torn page from the telephone book was found in the Trans Am, and the book with that page missing was found in Fields's residence. Fields's *763 mother wore Colleen's blouse to a preliminary hearing.
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 , 197 Cal.Rptr. 803 , 673 P.2d 680 . 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 , 275 Cal.Rptr. 384 , 800 P.2d 862 (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, 1994, in part on the merits and in part on the procedural ground of untimeliness. He filed a second amended habeas petition in district court on March 31, 1995, raising a number of claims which the district court held were procedurally barred. We reversed, Fields v. Calderon (Fields I), 125 F.3d 757, 759 (9th Cir.1997), cert. denied, 523 U.S. 1132 , 118 S.Ct. 1826 , 140 L.Ed.2d 962 (1998), and the parties filed cross-motions for summary judgment on all claims. The district court upheld the conviction, but ordered that the sentence be vacated and that Fields be sentenced to life in prison without the possibility of parole unless a new penalty trial were held within 60 days.
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 , 109 S.Ct. 1060 , 103 L.Ed.2d 334 (1989). It also found that the Hilliards had no discussions during trial about the *764 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 reserved sentencing issues until the conviction was settled, the panel concluded that Fields had failed to show prejudicial constitutional error and so reversed this part of the judgment. We granted rehearing en banc. [3] Fields v. Brown, 465 F.3d 397 (9th Cir.2006).
II
A
When responding on voir dire to one of the trial court's posted questions [4] — 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 and follow the law given to you by the court and apply it, to the best of your ability, to the facts as you determine them to be?," Hilliard responded "Definitely." Counsel asked no questions and Hilliard was empaneled without challenge.
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 *765 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 dire he volunteered that his wife had been assaulted and beaten, intending for people in the courtroom to understand that she had been sexually abused without his having to be explicit about the details. He noted that twenty-five years ago people were not as free and open in talking about sexual assaults as they are today. He did not intend to hide the fact that his wife had been sexually assaulted and if anyone had asked for specifics, Hilliard would have told them. He was mildly surprised when no one sought to strike him, and it would have been fine with him if the judge and attorneys did not want him on the jury. However, Hilliard was prepared to do his duty and serve if selected. If asked, Hilliard would also have said with respect to the charges involving sexual assault that he could be fair and impartial and that he doubted that the attack on his wife would have influenced him. He said he "doubt[ed]" he would have difficulty being fair and impartial only "because you can never be sure what's in the back of your mind." Hilliard stated that he told the truth when he told the judge that he would base his decision strictly on the evidence presented. Hilliard, who like Fields is African-American, testified that he did his best to be a fair juror, giving Fields the benefit of the doubt when others were against him; he did not think that the nature of his wife's case, the fact that no arrest had been made, and that her attacker (like Fields) was a young African-American male had any impact on him. He did not confuse Fields with his wife's attacker and did not mention the crimes against his wife to other jurors. When Mrs. Hilliard asked her husband about the case, he responded that he was not at liberty to discuss it. Hilliard did not tell his wife about the crimes charged, though he might have told her what Fields's race was afterwards. When Mrs. Hilliard told him she thought Fields might be the man who assaulted her, he told her he doubted it and thought she was a little paranoid. Hilliard testified that it never crossed his mind that Fields was the person who assaulted his wife. He also testified that Mrs. Hilliard's 1993 assumption that he was afraid Fields would get off was incorrect. He refused Diane's requests to come to the trial because he did not want her to compromise him as a juror and was concerned that she would be traumatized by the testimony, which would affect their home life.
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 *766 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 truthfulness of a juror's responses on voir dire; actual bias, which stems from a pre-set disposition not to decide an issue impartially; and implied (or presumptive) bias, which may exist in exceptional circumstances where, for example, a prospective juror has a relationship to the crime itself or to someone involved in a trial, or has repeatedly lied about a material fact to get on the jury. In short, Fields posits that Hilliard's failure to disclose his wife's rape and kidnaping, and to reveal his misgivings about serving as a juror, was untruthful. Actual bias can be inferred from this, together with the fact that the evidence at trial triggered memories of the attack on his wife and the fact that Hilliard talked with her about her suspicions during the trial. And Hilliard was impliedly biased as his wife's similar experience created the potential for his own substantial emotional involvement adversely affecting impartiality. We discuss each in turn.
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, 104 S.Ct. 845 (quoting Smith v. Phillips, 455 U.S. 209, 217 , 102 S.Ct. 940 , 71 L.Ed.2d 78 (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, 104 S.Ct. 845 .
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 evidently did not believe this injury was relevant to the inquiry. After judgment for McDonough, Greenwood sought a new trial on the basis of juror bias. The Court observed:
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 *767 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, 104 S.Ct. 845 . 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, 104 S.Ct. 845 .
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.2003) (holding that juror's misunderstanding of a legal term did not connote dishonesty); McDonough, 464 U.S. at 555 , 104 S.Ct. 845 (observing that "jurors are not necessarily experts in English usage" and "may be uncertain as to the meaning of terms which are relatively easily understood by lawyers and judges"); see also Sanders v. Lamarque, 357 F.3d 943, 947-50 (9th Cir.2004) (holding that a juror was not dishonest in failing to disclose that twenty-five years previously she had lived in an area with gang activity); Dyer, 151 F.3d at 973 (observing that it follows from McDonough that "an honest yet mistaken answer to a voir dire question rarely amounts to a constitutional violation; even an intentionally dishonest answer is not fatal, so long as the falsehood does not bespeak a lack of impartiality"). Hilliard did not fail to volunteer details for any reason that implicated impartiality; he would have furnished them, if asked. But he wasn't asked, and in these circumstances we heed McDonough 's admonition not to invalidate the result of a trial.
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 impartial. He did not lie to conceal bias. While his wife speculated that Fields might be the person who accosted her, Hilliard himself did not. And the couple had no discussions during *768 the trial about its subject matter because Hilliard understood that he was not at liberty to do so.
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 , 104 S.Ct. 845 (Blackmun, Stevens, and O'Connor, JJ., concurring); [6] id. at 558, 104 S.Ct. 845 (Brennan and Marshall, JJ., concurring in the judgment), [7] and our court has inferred or presumed bias on rare occasions. See, e.g., United States v. Allsup, 566 F.2d 68, 71-72 (9th Cir.1977); United States v. Eubanks, 591 F.2d 513, 517 (9th Cir.1979); Dyer, 151 F.3d at 979 ; Gonzalez, 214 F.3d at 1112-14 .
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 *769 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.
In Tinsley v. Borg, 895 F.2d 520 (9th Cir.1990), in contrast, a state prisoner who was convicted of rape contended in his 28 U.S.C. § 2254 petition that he was denied a fair trial because one juror was biased. Id. at 523. The juror stated during voir dire that she was a psychiatric social worker who was trained to deal with rape victims, but notwithstanding the nature of the charges involved in Tinsley's case, would be able to be a fair juror. Id. at 524. She also said that she did not recall counseling any rape victims; however, it turned out that she had testified once on behalf of a rape victim, an experience she found anxiety provoking. Id. At a hearing on Tinsley's motion for a new trial, the juror testified that she had been fair as a juror and had no recollection of thinking about the prior counseling episode during deliberations. Id. We acknowledged that bias may be implied when the case presents a relationship in which the "`potential for substantial emotional involvement, adversely affecting impartiality,'" is inherent, id. at 527 (quoting Allsup, 566 F.2d at 71 ), or as the Fourth Circuit had put it, 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. (quoting Person v. Miller, 854 F.2d 656, 664 (4th Cir.1988)). However, we concluded that the circumstances did not warrant a presumption of bias as neither the juror nor a close relative had been a rape victim or rapist, there was no personal connection between the juror and the defendant or victim, and the juror had no prejudicial information about the defendant himself. Id. at 529.
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 to an inference that she chose to conceal important facts in order to serve as a juror and pass judgment on Dyer's sentence. Id. at 982 ; see also Green v. White, 232 F.3d 671, 676 (9th Cir.2000) (presuming bias when the jury foreperson in a murder trial lied about his own prior felony conviction on a written jury questionnaire and in voir dire because the "pattern of lies, inappropriate behavior, and attempts to cover up his behavior introduced `destructive uncertainties' into the fact-finding process" (quoting Dyer, 151 F.3d at 983 )).
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 .
*770 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 .
Fields maintains that all the indicia for implied bias are present as Hilliard and his wife went through a personal experience that is similar to the fact pattern at trial; it is unlikely that a person in Hilliard's circumstances — whose wife was the victim of a recent unsolved crime by a person whom the defendant resembles and whom the wife suspects might be the one who attacked her — could be impartial; the incident involving Diane Hilliard and Hilliard's subsequent conversations with her during the trial present the potential for substantial emotional involvement adversely affecting his impartiality; and Hilliard was not honest during the voir dire process regarding the attack on his wife. Specifically, Fields contends that the same kind of emotional involvement exists in this case as in Eubanks and Dyer because Hilliard's wife had been affected by crimes similar to the ones of which he was accused; and that, as in Allsup , Hilliard also had a reasonable fear of violence as a result of crimes similar to the ones of which Fields was accused.
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 , 114 S.Ct. 948 , 127 L.Ed.2d 236 (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 final [9] would not allow a presumption of bias in the absence of a finding of juror dishonesty. The state submits that all but one case in the universe of implied-bias cases existing as of then involved dishonesty, see McDonough, 464 U.S. at 556 , 104 S.Ct. 845 ; Eubanks, *771 591 F.2d at 516 , and that the one case that did not, Allsup, 566 F.2d at 71 , involved two jurors who were related by employment to the victim — a relationship which falls squarely within long-accepted standards for disqualification.
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 , 74 S.Ct. 450 , 98 L.Ed. 654 (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 , 104 S.Ct. 845 (Blackmun, Stevens and O'Connor, JJ., concurring); id. at 558, 104 S.Ct. 845 (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 does not answer the more discrete issue raised by the state: whether the implied bias doctrine as it existed when Fields's conviction became final would have required a new trial in the absence of dishonesty during voir dire.
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 , 70 S.Ct. 519 , 94 L.Ed. 734 (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, 70 S.Ct. 519 . 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. *, 102 S.Ct. 940 (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 , 102 S.Ct. 940 (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. 464 U.S. at 556 , 104 S.Ct. 845 . 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, 104 S.Ct. 845 (Blackmun, Stevens, and O'Connor, JJ., concurring); id. at 558-59, 104 S.Ct. 845 (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.").
On the other hand, we decided in Allsup that bias could be implied in the absence of *772 juror dishonesty. The prospective jurors who worked for the victim bank had honestly disclosed their employment and stated that they could try the case fairly, but we nevertheless presumed bias on account of the fact that they worked for the bank that had been robbed and would have a "reasonable apprehension of violence" from bank robbers. 566 F.2d at 71-72 . Although the nature of the relationship was different from Hilliard's in that the jurors in Allsup were directly interested in the victim, still it is difficult to conclude in light of Allsup and Justice O'Connor's concurrence in Phillips that presuming bias despite an honest disclosure of a potentially disqualifying relationship would have been a new rule of constitutional law in 1984.
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).
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." 895 F.2d at 527 .
"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 , 104 S.Ct. 2885 , 81 L.Ed.2d 847 (1984)). This is because truthful disclosure of information during voir dire sets up a challenge for cause (or in less clear-cut cases, a peremptory challenge) that can be exercised before resources are devoted to trying the case to verdict. Cause challenges lie for implied (or presumed) bias as well as for actual bias. See Gonzalez, 214 F.3d at 1111 . Honesty is the heart of the jury-selection process in an adversarial system; indeed, "voir dire" means "to speak the truth." The whole point of the voir dire process is to elicit information from the venire that may shed light on bias, prejudice, interest in the outcome, competence, and the like so that counsel and the parties may exercise their judgment about whom to seat and whom to challenge. As the Supreme Court elaborated in McDonough :
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 , 104 S.Ct. 845 (citation omitted) (quoting Phillips, 455 U.S. at 217 , 102 S.Ct. 940 ). [10] Accordingly, when the *773 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 , 104 S.Ct. 845 .
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 biased 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, 854 F.2d at 664 ). 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 , 102 S.Ct. 940 (quoting Dennis, 339 U.S. at 171-72 , 70 S.Ct. 519 ); see also id. at 215 , 102 S.Ct. *774 940 (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 , 120 S.Ct. 1479 , 146 L.Ed.2d 435 (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).
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, and to develop the extent to which the juror's ability to be impartial in the particular case is actually, or presumptively, affected. For those revelations that occur during voir dire, the remedy is a cause challenge; for those that occur during trial, the remedy is a contemporaneous proceeding during which the trial court can preserve the integrity of the jury; for those that occur after trial, the remedy is a post-trial hearing. Here, the evidentiary hearing showed no actual effect of his wife's experience, or of their conversations, on Hilliard's ability to be fair and impartial. [11] Being 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. [12] It cannot be said that the average person in Hilliard's position would be highly unlikely to remain impartial whether he acknowledged it or not. [13] Rather, the effect of the spouse's *775 experience on the juror's impartiality depends on purely personal considerations that can vary from case to case, including, for example, the similarity of the spouse's experience to the facts of the case, the nature of the experience, its contemporaneous and continuing impact, the couple's relationship, how the individual handles it, and so forth. Given 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, we see no basis for inferring bias now as a matter of law.
C
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 , 13 S.Ct. 50 , 36 L.Ed. 917 (1892), and Remmer v. United States, 347 U.S. 227, 229 , 74 S.Ct. 450 , 98 L.Ed. 654 (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 was, he did not buy his wife's speculation about Fields's being her assailant, he did not confuse the Fields case with the crimes *776 against his wife, and he discussed nothing with his wife that affected his ability to be fair and impartial.
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.
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 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984), Fields must show that his "counsel's performance was deficient" and "that the deficient performance prejudiced the defense." Id. at 687 , 104 S.Ct. 2052 . 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 charges against Fields included rape." 309 F.3d at 1108 . The state hypothesizes tactical reasons why Jones would have wanted Hilliard on the jury, but whether counsel had a strategic reason is immaterial, for Fields was not prejudiced. Strickland, 466 U.S. at 697 , 104 S.Ct. 2052 (observing that a court may determine prejudice without first deciding deficiency). Prejudice exists if "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694 , 104 S.Ct. 2052 . Here there is no such reasonable probability, because Hilliard was not biased. The impartiality of the jury was not undermined by his being seated as a juror. Replacement of one unbiased juror with another unbiased juror should not alter the outcome.
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 Rule 9(a) of the Rules Governing Section 2254 Cases in the United States District Courts; the claim is Teague -barred; the district court's finding was based on juror declarations that are inadmissible under Federal Rule of Evidence 606(b); and the jury's consideration of the Biblical passages and dictionary definitions did not violate the Constitution or have a substantial and injurious effect on the verdict. Fields responds that his rights to cross-examination, confrontation, and the *777 assistance of counsel were violated by use of Juror White's notes because he had no chance to take a position on them. He submits that there is a material difference between a juror's commenting on the evidence from general knowledge that other jurors can easily rebut, and a jury's considering written notes of religious mandates and appeals to a higher authority. And he contends that the Biblical verses were "strong medicine" that supported imposition of the death penalty when the jurors were split in favor of life without the possibility of parole, thus were prejudicial.
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 definitions of the words "extenuation," "vindication," and "mitigate," and brought these notes to the jury room as well. [16] The notes were shared or the information was received by at least some *778 jurors when deliberations resumed at 9:30 a.m. on July 17th. By 3 p.m. that afternoon, the jury had reached a verdict.
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 Rule 606(b). [17] However, based on what was left, the court found that the religious material in White's notes was actually received by the jury, was available to it on the second day of deliberations, was discussed by some jurors, was presented at an early stage of deliberations before a verdict was reached, and directly related to a material aspect of the case because the references indicated that the death penalty should be imposed in any case involving murder. The district court concluded that the jury's consideration of Biblical references offended the principle that religion may not play a role in the sentencing process, and that it had the potential to be highly prejudicial.
Before turning to the merits, we must first decide whether this claim is Teague -barred. See Caspari, 510 U.S. at 389 , 114 S.Ct. 948 ; 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 , 114 S.Ct. 2630 , 129 L.Ed.2d 750 (1994) (quoting Zant v. Stephens, 462 U.S. 862, 875 , 103 S.Ct. 2733 , 77 L.Ed.2d 235 (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 , 88 S.Ct. 1770 , 20 L.Ed.2d 776 (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 , 13 S.Ct. 50 , 36 L.Ed. 917 (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 *779 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 juror brought into the jury room are extraneous materials, or are merely "the kind of common knowledge which most jurors are presumed to possess." Rodriguez v. Marshall, 125 F.3d 739, 745 (9th Cir.1997), overruled on other grounds by Payton v. Woodford, 299 F.3d 815 , 828-29 & n. 11 (9th Cir.2002) (en banc); see also Grotemeyer v. Hickman, 393 F.3d 871, 878-79 (9th Cir.2004) (stating that a juror's sharing her own experience as a physician with the jury is not extrinsic evidence); United States v. Bagnariol, 665 F.2d 877, 888 (9th Cir.1981) (discounting claim of prejudice where extraneous information was something "any reasonable juror already knew"). We also apply a multi-factor test, [18] which makes it particularly difficult to conclude that the law applicable to a discrete set of circumstances was dictated by precedent.
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 , 13 S.Ct. 50 . Remmer applied the rule to allegations of bribery. See 347 U.S. at *780 228-30, 74 S.Ct. 450 . In Turner v. Louisiana, 379 U.S. 466, 473-74 , 85 S.Ct. 546 , 13 L.Ed.2d 424 (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 , 87 S.Ct. 468 , 17 L.Ed.2d 420 (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 1328, 1331-33 (9th Cir.1981); when the jury learned that the defendant had committed a prior armed robbery, Jeffries v. Blodgett, 5 F.3d 1180, 1191 (9th Cir. 1993); when a juror told others about the defendant's reputation for violence, Lawson, 60 F.3d at 612-13; when the jury discussed an extra-record telephone call that directly related to the defendant's motive, Sassounian, 230 F.3d at 1108-10 ; and when a detective who provided crucial testimony had a twenty-minute conversation, factually unrelated to the trial, with three jurors during a recess, Caliendo v. Warden of Cal. Men's Colony, 365 F.3d 691, 696, 698 (9th Cir.2004).
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 , 112 S.Ct. 2514 , 120 L.Ed.2d 269 (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))); Burlington, 870 F.2d 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 , *781 776-77 (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.
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 Brecht [19] standard on habeas review of claim that jury considered extrinsic evidence). [20] Whether or not White should have brought his notes to the jury room and shared them, [21] we cannot say that the Biblical part of the "for" part of the notes had a substantial and injurious effect on the verdict. His own notes had an "against" part as well. So far as we can tell, the communication occurred early on in deliberations. Jurors could take as much time as they needed to sort through the evidence and reflect on whether the ultimate penalty was the right penalty. [22] More importantly, *782 the jury was instructed to base its decision on the facts and the law as stated by the judge, regardless of whether a juror agreed with it. We presume that jurors follow the instructions. Kansas v. Marsh, ___ U.S. ___, 126 S.Ct. 2516, 2528 , 165 L.Ed.2d 429 (2006); Richardson v. Marsh, 481 U.S. 200, 206 , 107 S.Ct. 1702 , 95 L.Ed.2d 176 (1987) (applying "the almost invariable assumption of the law that jurors follow their instructions").
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, assessing prejudice under Strickland and concluding there was no possibility of it:
[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 , 275 Cal.Rptr. 384 , 800 P.2d 862 (1991) (internal citation omitted). Given this, we see no *783 prejudicial constitutional error on account of the juror's notes that requires issuance of the writ. [23]
Dictionary definitions for terms used in the instructions directly implicate the law given by the court by which the jury's decision must be determined. If a jury needs help with the instructions, the proper thing to do is ask the judge. Misconduct though it was to research these definitions, and for the jury to review them, we cannot say that the jury's consideration of the definitions on White's notes had a substantial and injurious effect or influence in determining the verdict in this case. Fields has shown no influence whatsoever, and none is apparent to us. Accordingly, the misconduct is harmless. [24]
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.
GOULD, Circuit Judge, with whom McKEOWN and WARDLAW, Circuit Judges, join, concurring in part and dissenting 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., Bennett 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 , 108 S.Ct. 162 , 98 L.Ed.2d 116 (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 Sixth Amendment's guarantees of a trial by an impartial jury and the right of confrontation require that the jury base its verdict on the evidence presented at trial. Turner v. Louisiana, 379 U.S. 466, 472-73 , 85 S.Ct. 546 , 13 L.Ed.2d 424 (1965). "It is vital 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 , 13 *784 S.Ct. 50, 36 L.Ed. 917 (1892). These rights apply equally to sentencing proceedings tried to a jury, as they do to guilt deliberations. See Morgan v. Illinois, 504 U.S. 719, 727-28 , 112 S.Ct. 2222 , 119 L.Ed.2d 492 (1992).
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 780. 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 780. 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 sheer 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. See supra Section IV at 777 n. 15. Conversely, the "con" side had no Bible quotations and a mere six entries on six written lines. Additionally, the "con" list was comprised of piecemeal ideas and thoughts, whereas the "pro" death penalty list contains numerous references to higher law from the Bible such as an "eye for eye" and "`[l]et everyone be subject to the higher authorities, for there exists no authority except from God.'" See id. Missing from the "con" list are biblical quotes that might have been marshaled against the death penalty. See e.g., Romans 12:17-19 (King James): "Recompense to no man evil for evil. Provide things honest in the sight of all men. If it be possible, as much as lieth in you, live peaceably with all men. Dearly beloved, avenge not yourselves, but rather give place unto wrath: for it is written, Vengeance is mine; I will repay, saith the Lord."; Deut. 21:18-21; Exod. 31:14-15. The extreme lopsided nature of the pro and con lists simply underscores the emphasis White placed on Biblical justification of the death penalty.
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 780. 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, White conducted independent research of the Bible and dictionary. He wrote down his results to present during jury deliberations the following day. Furthermore, White didn't simply jot down a few biblical catch-phrases, but instead he wrote down over seventeen lines of quoted text. Putting aside biblical scholars and persons capable of extraordinary memory feats, it *785 is unlikely that for many persons seventeen lines of biblical text, and indeed thirteen consecutive lines from one quote, can be viewed as a "notion of general currency."
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 Bhuddism, 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 Establishment Clause violation into the heart of the jury room. [1] If quotes from the Bible are okay, what if the foreman had brought in quotes from the Koran, or from a particular fatwa, indicating that some terrorist act of murder was okay under a different religious text. Surely it cannot be our law that jury fore-persons may urge action by a jury in accord with written quotes provided from the Bible, external to the evidence developed in the trial, but that jurors cannot submit written statements from other religions to like effect.
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 *786 street-corner wisdom such as might be found in popular novels of any number of current authors whose books line the supermarket shelves? [3]
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 Eighth Amendment's requirement that any decision to impose death must be the result of discretion which is carefully and narrowly channeled and circumscribed by the secular law of the jurisdiction." Jones v. Kemp, 706 F.Supp. 1534, 1559 (N.D.Ga.1989). California's death penalty statute provides specific factors the jury is to consider to distinguish "the few cases in which [the death penalty] is imposed from the many in which it is not." Godfrey v. Georgia, 446 U.S. 420, 427 , 100 S.Ct. 1759 , 64 L.Ed.2d 398 (1980) (internal quotation marks omitted). Here, White introduced to the jury deliberations only Bible quotations that were pro death penalty, and left out Bible quotations that spoke to mercy. Moreover, the passages from which White quoted "explicitly reject[ ] the drawing of distinctions in murder cases," Jones, 706 F.Supp. at 1559-60 , and directed the jury to impose death in any case involving murder. These Bible passages, commanding death, inserted "higher law" into the jury deliberations and unconstitutionally relieved the jury from their individual responsibility to determine whether to commit Fields to death or sentence him to life imprisonment. See Polk II, 444 F.3d at 227 (Wilkinson, J., concurring) (reasoning that the Bible's "place as a canon of scriptural authority is so powerful that it threatens to supplant the individualized sentencing inquiry into the nature and consequences of the crime and the particular aggravating and mitigating circumstances"); People v. Harlan, 109 P.3d 616, 631 (Colo.2005) (reasoning that the Bible, as higher law, is very persuasive to a typical juror as it relieves "the juror from his or her individual responsibility to determine whether to commit a person to death because God commands that result").
Here, White introduced Biblical quotations and passages into the jury deliberations. The Bible quotations were circulated to, and discussed by, the jury *787 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 influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 623 , 113 S.Ct. 1710 , 123 L.Ed.2d 353 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776 , 66 S.Ct. 1239 , 90 L.Ed. 1557 (1946)).
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 781-82.
As a general rule, we presume that jurors follow the trial court's instructions. See Kansas v. Marsh, ___ U.S. ___, 126 S.Ct. 2516, 2528 , 165 L.Ed.2d 429 (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 California Penal Code § 190.3. The jury was not to consider external materials, including the dictionary or the Bible, during its penalty phase deliberations. But that is precisely what they did.
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 783. 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 782. 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 instructions. Because of this, we should recognize that the jury disregarded the trial court's instructions and based their death sentence not only on the facts and law as stated by the judge, but also on the insight and independently researched support garnered from the Bible and dictionary.
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 *788 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 deliberations had a "substantial and injurious" influence on the jury's verdict. Brecht, 507 U.S. at 623 , 113 S.Ct. 1710 .
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 specificity of the notes and the lopsided pro and con chart persuade me that the notes had a substantial and injurious influence in determining the verdict. I respectfully dissent.
*789 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 , 112 S.Ct. 2222 , 119 L.Ed.2d 492 (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 resemblance between the unsolved kidnapping and rape of his wife not long before the trial and the crime with which Fields was charged. It does so even though the resemblance was so marked that the juror's wife became convinced that Fields could have been her assailant and tried repeatedly during the trial to convince her husband to let her attend the trial so she could tell whether he was. [1]
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)).
*790 I.
Before proceeding to either discussion, however, I begin with some reflections about the complex vision of the role of the jury in our legal system that underlies both sets of legal principles here applicable — those dealing with the sealing off of jurors from external influences once they are seated, and those dealing with juror bias or predisposition. Quite evidently, both sets of principles are grounded to some degree in a "black box" theory of the ideal jury: The perfect juror, on this posit, is a person who comes into court with all his or her reasoning processes intact, and no bias, predisposition, or prejudgment that would be an obstacle to fair decision-making. The perfect juror is then exposed only to that testimony, evidence, and argument the parties present and that the judge deems proper under the law, and is later told by the judge, and the judge alone, which legal principles to apply. Our paragon juror then limits his or her decision to that which was presented, that which was argued, and that which was instructed, generating a verdict pristinely insulated from all extraneous influences, internal and external.
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 , 95 S.Ct. 692 , 42 L.Ed.2d 690 (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 , 98 S.Ct. 1029 , 55 L.Ed.2d 234 (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 the community to the facts," and because "the opportunity for meaningful and appropriate representation [of minority groups] does decrease with the size of the panels"); see also Tinsley, 895 F.2d at 528 (noting the foolishness of a doctrine that would categorically disqualify jurors from serving in cases in which their group affiliations might suggest a tendency toward a particular outcome (citing United States v. Salamone, 800 F.2d 1216, 1225 (3d Cir.1986))).
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 , 35 S.Ct. 783 , 59 L.Ed. 1300 (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 *791 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 , 104 S.Ct. 845 , 78 L.Ed.2d 663 (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 uncertain as to the meaning of terms which are relatively easily understood by lawyers and judges."). Legal processes do have to come to an end, and litigants, while assuredly entitled to a fair trial, are not entitled to a perfect one. See id. ("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.").
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 CAL. JURY INSTR. CRIM. 0.50 ("You must not converse among yourselves, or with anyone else, including but not limited to, spouses, spiritual leaders or advisers, or therapists, on any subject connected with the trial, except when all the following conditions exist: (a) The case has been submitted to you for your decision by the court, following arguments by counsel and jury instructions; (b) You are discussing the case with a fellow juror; and (c) All twelve jurors [and no other persons] are present in the jury deliberating room." (brackets in original)). At the same time, only rarely do we insist that jurors must be cloistered altogether during trial, rather than going home to their communities — and to the real possibility of exposure to media, to the opinions of friends and family, and to the opportunity to conduct investigations or legal inquiries beyond those available in the courtroom. And the accommodating jury procedures also include evidentiary limitations on inquiry into the jury's verdict once it issues — limitations that are not absolute, but which are designed to allow inquiry only into objective, external factors that may have interfered with the jury's functioning. See FED. R. EVID. 606(b) ("Upon an inquiry into the validity of a verdict . . ., 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 concerning the juror's mental processes in connection therewith. But a juror may *792 testify about (1) whether extraneous prejudicial information was improperly brought to the jury's attention,[and] (2) whether any outside influence was improperly brought to bear upon any juror. . . . ").
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 particulars of a case is so great that an emotional rather than rational verdict is likely — and is likely whether the juror so recognizes or not — because, as the very juror in question in this case said, "you can never be sure what's in the back of your mind." And it also loses sight of the impermeable line we have set between drawing on one's life experience and active research of outside sources, with regard to the facts or to the legal standards that are to govern the case.
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 determine *793 whether the penalty to be imposed on defendant shall be death or confinement in the State Prison for life without the possibility of parole." Nonetheless, after the first day of penalty-phase deliberations in Fields's trial, the jury foreperson, Rodney White, went home; consulted the Bible and a dictionary; wrote out three pages of notes — including verbatim copies of three Bible passages, Genesis 9:6, Exodus 21:12, and Romans 13:1-5, widely understood to advocate capital punishment; brought those notes into the jury room the next morning; and shared them with his fellow jurors.
We have consistently recognized that the Sixth Amendment prohibits jurors from introducing matters into deliberations not presented during the trial. See Gibson v. Clanon, 633 F.2d 851, 854 (9th Cir.1980) (explaining that a jury's consideration of extrinsic material is a constitutional violation). Although our case law often refers to such misconduct as the jury's consultation of "extrinsic evidence" or "extraneous facts," we have explained that "[e]xtraneous-evidence cases involve not only the introduction of `evidence' per se but the `submission of "extraneous information" (e.g., a file or dictionary) to the jury.'" United States v. Rosenthal, 454 F.3d 943, 949 (9th Cir.2006) (quoting United States v. Madrid, 842 F.2d 1090, 1093 (9th Cir.1988)); see also Marino v. Vasquez, 812 F.2d 499, 502-03, 505 (9th Cir. 1987) (holding that consulting a dictionary definition for the meaning of "malice" constituted the consideration of extrinsic information). Instead, analysis of an extrinsic information claim depends on whether the outside information "pertain[s] to `any fact in controversy or any law applicable to the case.'" Madrid, 842 F.2d at 1093 (emphasis added) (quoting Rushen v. Spain, 464 U.S. 114, 121 , 104 S.Ct. 453 , 78 L.Ed.2d 267 (1983) (per curiam)); see also Thompson v. Borg, 74 F.3d 1571, 1574 (9th Cir.1996) ("Juror misconduct typically occurs when a member of the jury has introduced into its deliberations matter which was not in evidence or in the instructions. " (emphasis added)).
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.
Fields v. Calderon , No. CV 92-0465 DT, slip op. at 15 (C.D.Cal. Jan. 18, 2000) (emphasis added) (citation and internal quotation marks omitted).
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 *794 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.
CAL. PENAL CODE § 190.3 (1977). The California Supreme Court has held this statute "require[d] the jury to concentrate upon the circumstances surrounding both the offense and the offender." People v. Jackson, 28 Cal.3d 264, 316 , 168 Cal.Rptr. 603 , 618 P.2d 149 (1980), overruled on other grounds by People v. Cromer, 24 Cal.4th 889 , 103 Cal.Rptr.2d 23 , 15 P.3d 243 (2001). Accordingly, "religious doctrine, commandments or biblical passages" are "factors outside section 190.3." People v. Sandoval, 4 Cal.4th 155, 193-94 , 14 Cal.Rptr.2d 342 , 841 P.2d 862 (1992), aff'd on other grounds, 511 U.S. 1 , 114 S.Ct. 1239 , 127 L.Ed.2d 583 (1994).
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, *795 then, there is no doubt that the Biblical quotations introduced a set of standards that contradicted the ones the jury was supposed to apply in deciding whether Fields was to live or die.
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, 547 U.S. 1073 , 126 S.Ct. 1828 , 164 L.Ed.2d 522 (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 , 8 Cal. Rptr.3d 767 , 82 P.3d 1249 (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, 267 Va. 318 , 593 S.E.2d 292, 298-99 (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 785-86 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 780. *796 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 ___ U.S. ___, 127 S.Ct. 514 , 166 L.Ed.2d 383 (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.
In any case, I fail to understand why a distinction between extrinsic statements of general moral currency and other extrinsic materials has a legal bearing on this case. Although the majority suggests that the distinction is significant in this case because the jury in a capital trial is assigned the task of making a moral judgment, as I have explained, the absolute nature of Biblical materials introduced by White contravened the permitted role of moral considerations and instead violated the principle that capital sentencing must be individualized. Moreover, the moral nature of death penalty judgments does not allow religious considerations to be a proper matter for deliberations, rather than a factor jurors can privately contemplate in the course of undertaking their awesome responsibility. See Robinson, 444 F.3d at 227 (Wilkinson, J., concurring in the denial of rehearing en banc) ("There is a difference between a juror bringing a Bible into the jury room for personal strength and support and the jury as a whole reading and debating the biblical text as the basis for a life and death decision. Such a debate is constitutionally problematic. . . . If the presence of a Bible in the jury room drives the collective discussion, and renders a capital sentence the result of religious command, then in my view, an important line has been crossed.").
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 780. 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 — principally, preservation of the privacy of jury deliberations and of the finality of jury verdicts — we would not allow inquiry into why any individual juror voted for the death penalty, or into statements made to others regarding why they should do the same. But that forbearance serves an independent interest; it does not sanction the disregard of the instructions.
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'"), *797 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, filtered through the personalities, background information, and reasoning ability the jurors brought with them to court. But we do not approve of, and regard as misconduct, affirmatively gathering outside information. Further, the lengthy quotations, written down and passed around, conveyed a sense of authority quite different from a paraphrase or one line quotations spoken from memory, not least because they could be consulted repeatedly and outside of White's immediate presence. The written, lengthy quotations introduced tangibly an external exhortation, that God, or the authors of God's book — not just juror White — encouraged jurors to disregard the judge's instructions and vote for the death penalty no matter what. The majority, therefore, is wrong to portray this case as similar to "sharing memory," and this case does not raise the question of whether jurors act impermissibly by referring to their faith during deliberations. See Maj. op. at 780.
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,
the foreman brought to the deliberations pages of notes of citations from the Bible and other religious sources which he felt supported capital punishment. These notes were passed around to and discussed by the jury. It was only after we reviewed and discussed the notes that an unanimous decision in favor of death was reached.
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 *798 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).
The district court quite properly considered the jurors' statements that the jury was undecided at the time the Biblical material was brought into the jury room and that unanimity came only after that point. Under Rule 606(b) of the Federal Rules of Evidence, federal courts can consider "juror testimony about the consideration of extrinsic evidence" but cannot consider testimony "about the subjective effect of evidence on the particular juror." Sassounian v. Roe, 230 F.3d 1097, 1108 (9th Cir.2000). Here, the district court did not find that the discussion of the Biblical material was the reason that jurors changed their vote, but merely that vote changes occurred, and when. We have previously found it proper to consider the timing of shifts in jury votes relative to the introduction of extrinsic evidence. See id. at 1110 ; Marino, 812 F.2d at 505 & n. 8; see also Mattox v. United States, 146 U.S. 140, 147-51 , 13 S.Ct. 50 , 36 L.Ed. 917 (1892) (holding, after examining the common law restrictions against impeaching verdicts through juror testimony, that the defendant should receive a new trial based on jury misconduct because admissible evidence demonstrated that "[t]he jury in the case before us retired to consider of their verdict on the 7th of October, and had not agreed on the morning of the 8th, when the newspaper article was read to them"). [8]
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 there may have been a need to resolve some lingering hesitation or uncertainty.").
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." *799 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 780-81, 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 evid

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/1218506. Public record. Not legal advice.