Fields v. Brown

Volume 1 of 2

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

STEVIE LAMAR FIELDS, 

Petitioner-Appellant,

v. No. 00-99005

JILL BROWN,* Warden, of  D.C. No.

California State Prison at San CV-92-00465-DT

Quentin,

Respondent-Appellee.



STEVIE LAMAR FIELDS, 

Petitioner-Appellee,

No. 00-99006

v.

JILL BROWN,* Warden, of  D.C. No.

CV-92-00465-DT

California State Prison at San

OPINION

Quentin,

Respondent-Appellant.



Appeals from the United States District Court

for the Central District of California

Dickran M. Tevrizian, District Judge, Presiding

Argued and Submitted

December 13, 2006—San Francisco, California

Filed September 10, 2007

*Jill Brown is substituted for her predecessor, Jeanne S. Woodford, as

Warden of California State Prison at San Quentin. See Fed. R. App. P.

43(c)(2).

11943

11944 FIELDS v. BROWN

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

11948 FIELDS v. BROWN

COUNSEL

David S. Olson, Kulik, Gottesman, Mouton & Siegel, Sher-

man Oaks, California, for the petitioner-appellant/cross-

appellee.

Bill Lockyer, Attorney General; Robert R. Anderson, Chief

Assistant Attorney General; Pamela C. Hamanaka, Senior

Assistant Attorney General; Kristofer Jorstad, Deputy Attor-

ney General; and Keith H. Borjon, Supervising Deputy Attor-

ney General, Los Angeles, California, for the respondent-

appellee/cross-appellant.

OPINION

RYMER, Circuit Judge, with whom Chief Judge Schroeder

and Judges Kozinski, O’Scannlain, Silverman, Tallman, Clif-

ton, 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 con-

victed in 1979 for the robbery and murder of Rosemary

Cobbs, a student librarian at the University of Southern Cali-

fornia; 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 copu-

lation 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 constitu-

tional 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-

FIELDS v. BROWN 11949

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 Bibli-

cal 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 consti-

tutional error at the penalty phase, we reverse this part of the

district court’s judgment. The effect is to deny habeas relief,

thereby leaving Fields’s convictions and sentence in place.

I

Fields was paroled from prison on September 13, 1978,

after serving a sentence for manslaughter for bludgeoning

Albert Allen to death with a bar-bell. Fourteen days later, he

went on a three-week, “one-man crime wave.” People v.

Fields, 35 Cal. 3d 329, 336 (1983) (so describing Fields’s

spree).1

On September 27, 1978, Fields’s sister Gail saw him with

Rosemary Cobbs, a 26-year-old woman who worked as a stu-

dent 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”

1

We take this summary of facts from the opinion of the California

Supreme Court, People v. Fields, 35 Cal. 3d 329, 336-40 (1983), and our

prior opinion in Fields v. Woodford (Fields II), 309 F.3d, 1095, 1098-1100

(9th Cir. 2002), amended by 315 F.3d 1062.

11950 FIELDS v. BROWN

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 for-

mer 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 pun-

ished 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, Deb-

bie saw Fields, Gail, and Rosemary get into a car Gail bor-

rowed 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, 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 Rose-

mary’s purse, driver’s license, and a torn check from Rose-

mary to Gail for $185 were found in Fields’s residence.

On October 2, 1978, Clarence Gessendaner parked his Pon-

tiac 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

FIELDS v. BROWN 11951

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 vene-

real 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. Gwendo-

lyn passed out but when she awoke, she saw Blackwell hold-

ing 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 Col-

leen 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 with-

draw $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 resi-

dence without withdrawing the money because Fields thought

there were too many people around. Fields told Colleen he

would have to kill her because she had too many counts on

him; Colleen begged him not to. She tried to escape by throw-

11952 FIELDS v. BROWN

ing herself backwards through a closed window in the bed-

room, 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 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 premedi-

tated 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 pen-

alty phase, the parties stipulated that all evidence heard in the

guilt and sanity phases would carry forward and that Fields

had been convicted in 1976 of the voluntary manslaughter of

Albert Allen. The jury fixed the punishment at death under

the 1977 California death penalty law. After independently

reviewing the record, the trial court denied Fields’s motion for

new trial and for modification of the verdict.

The California Supreme Court affirmed Fields’s conviction

and sentence on December 29, 1983. 35 Cal. 3d at 336. Fields

filed a petition for habeas corpus in the state supreme court

claiming ineffective assistance of his trial counsel, Carl Jones,

which was denied after appointment of a referee who con-

ducted an evidentiary hearing. In re Fields, 51 Cal. 3d 1063

(1991).

Fields brought his first federal habeas corpus petition on

May 25, 1993. The district court stayed proceedings to allow

an opportunity to pursue unexhausted claims in state court.

Fields filed a second petition for collateral review in the Cali-

fornia Supreme Court, which was denied on October 14,

FIELDS v. BROWN 11953

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 (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 sen-

tenced 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 Antiterro-

rism 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 coun-

sel), 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 hear-

ing, the district court found that Juror Hilliard was not dishon-

est during voir dire, that he was not actually biased, and that

application of the implied bias doctrine in the absence of dis-

honesty would be a new rule barred by Teague v. Lane, 489

U.S. 288 (1989). It also found that the Hilliards had no discus-

sions during trial about the trial that affected juror Hilliard’s

ability to be fair and impartial.

Fields renewed appeal on these issues. The panel affirmed

denial of the writ on his claim of juror impartiality. Fields v.

Woodford (Fields III), 431 F.3d 1186 (9th Cir. 2005). Having

2

AEDPA does govern whether a petitioner may appeal after AEDPA’s

effective date. Slack v. McDaniel, 529 U.S. 473 (2000). Accordingly, we

treated Fields’s notice of appeal as a request for a Certificate of Appeala-

bility, and found that he made the requisite showing on each of the issues

raised. Fields II, 309 F.2d at 1101.

11954 FIELDS v. BROWN

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. Woodford, 465 F.3d

397 (9th Cir. 2006).

II

A

When responding on voir dire to one of the trial court’s

posted questions4 — whether the prospective juror had ever

been a crime victim or witness, arrested or charged with a

crime, or involved in criminal charges or litigation — Floyd

Hilliard stated that his “wife was assaulted and beaten,

robbed, two years ago Christmas” in Los Angeles. The judge

observed that some of the charges involved in the Fields case

were robberies and asked whether Hilliard thought “it is going

to make it difficult for you to be a fair, impartial juror in the

case now pending before this court as a result of the experi-

ence 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

3

Amicus briefs in support of Fields’s petition have been filed by the

California Attorneys for Criminal Justice and the California Council of

Churches. An amicus brief supporting the state’s petition was filed by

Wallbuilders, Inc.

4

The posted questions were written and included: (1) the prospective

juror’s business or occupation; (2) the prospective juror’s spouse’s busi-

ness or occupation; (3) the ages of the prospective juror’s children and

their occupations or where they attended school; (4) the general area

where the prospective juror lived; (5) the prospective juror’s previous jury

experience; (6) 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; (7) whether the prospective juror had any legal or

law enforcement background, training, or experience; (8) whether the pro-

spective juror had any friends or relatives who were in law or law enforce-

ment; and (9) whether the prospective juror knew of any reason that he or

she could not serve as a fair and impartial juror.

FIELDS v. BROWN 11955

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 ques-

tions 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

experience, and he was one of the jurors who initially

defended Fields in deliberations. Another juror’s 1995 decla-

ration 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 evi-

dentiary 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 testi-

mony the court credited, Hilliard explained that during voir

11956 FIELDS v. BROWN

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 evi-

dence presented. Hilliard, who like Fields is African-

American, testified that he did his best to be a fair juror, giv-

ing 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

FIELDS v. BROWN 11957

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 advised the

court about her case during jury selection.

Juror Henry testified that Hilliard talked about his wife

being the first black woman fire fighter, but nothing else.

Juror Warner testified that he became aware that Hilliard’s

wife had been robbed, beaten, and raped during voir dire, but

otherwise Hilliard didn’t talk about it.

Considering the entire record, including the 1993 and 1995

declarations, the district court found that juror Hilliard did not

intend to mislead the trial court when he stated that his wife

was “assaulted and beaten, robbed, two years ago Christmas.”

The court also found that Hilliard and his wife did not have

any discussions during the trial about its subject matter that

affected Hilliard’s ability to be fair and impartial.

B

Fields’s claim of juror bias puts three theories on the table:

so-called McDonough-style bias,5 which turns on the truthful-

5

McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548 (1984)

(plurality) (holding that to get a new trial based on a juror’s responses in

11958 FIELDS v. BROWN

ness of a juror’s responses on voir dire; actual bias, which

stems from a pre-set disposition not to decide an issue impar-

tially; 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 Hiliard 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 impar-

tiality. We discuss each in turn.

[1] The Sixth Amendment guarantees a criminal defendant

a fair trial. “One touchstone of a fair trial is an impartial trier

of fact — ‘a jury capable and willing to decide the case solely

on the evidence before it.’ ” McDonough, 464 U.S. at 554

(quoting Smith v. Phillips, 455 U.S. 209, 217 (1982)). As the

Supreme Court recognized in McDonough, “[v]oir dire exam-

ination serves to protect that right by exposing possible

biases, both known and unknown, on the part of potential

jurors.” Id. at 554.

[2] McDonough was a personal injury action in which a

prospective juror failed to respond affirmatively to a question

on voir dire seeking to elicit information about previous inju-

ries to members of the juror’s immediate family that resulted

in disability or prolonged pain. In fact, the juror’s son had

broken his leg as a result of an exploding tire, but the juror

voir dire, a party must demonstrate that the juror failed to answer honestly

and that a correct response would have provided a basis for a challenge

for cause).

FIELDS v. BROWN 11959

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 perfec-

tion 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 rec-

reate the peremptory challenge process because

counsel lacked an item of information which objec-

tively he should have obtained from a juror on voir

dire examination.

Id. at 555. Accordingly, the Court held that “to obtain a new

trial in such a situation, a party must first demonstrate that a

juror failed to answer honestly a material question on voir

dire, and then further show that a correct response would have

provided a valid basis for a challenge for cause.” Id. at 556.

[3] After careful consideration of the entire record, the dis-

trict 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. Cal-

deron, 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 sex-

ual 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.

11960 FIELDS v. BROWN

2003) (holding that juror’s misunderstanding of a legal term

did not connote dishonesty); McDonough, 464 U.S. at 555

(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 judg-

es”); see also Sanders v. Lamarque, 357 F.3d 943, 947-50

(9th Cir. 2004) (holding that a juror was not dishonest in fail-

ing to disclose that twenty-five years previously she had lived

in an area with gang activity); Dyer, 151 F.3d at 973 (observ-

ing that it follows from McDonough that “an honest yet mis-

taken 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.

[4] Likewise, we see no basis upon which to invalidate

Fields’s conviction on account of actual bias. We have

defined actual bias as, in essence, “ ‘bias in fact’ — the exis-

tence of a state of mind that leads to an inference that the per-

son 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) (inter-

nal 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 discre-

tion, Gonzalez, 214 F.3d at 1112. We are satisfied that there

was no manifest error in the district court’s finding that Hil-

liard 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

FIELDS v. BROWN 11961

impartial. He did not lie to conceal bias. While his wife spec-

ulated that Fields might be the person who accosted her, Hil-

liard himself did not. And the couple had no discussions

during the trial about its subject matter because Hilliard

understood that he was not at liberty to do so.

[5] This leaves Fields’s argument that Hilliard was, never-

theless, impliedly or presumptively biased. As the panel rec-

ognized 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 McDo-

nough seem to embrace it, see McDonough, 464 U.S. at 556-

57 (Blackmun, Stevens, and O’Connor, JJ., concurring);6 id.

at 558 (Brennan and Marshall, JJ., concurring in the judgment),7

6

Justice Blackmun’s concurrence for Justice Stevens and Justice

O’Connor agrees with the Court that

the proper inquiry in this case is whether the plaintiffs had the

benefit of an impartial trier of fact. I also agree that, in most

cases, the honesty or dishonesty of a juror’s response is the best

initial indicator of whether the juror in fact was impartial. I there-

fore join the Court’s opinion, but I write separately to state that

I understand the Court’s holding not to foreclose the normal ave-

nue of relief available to a party who is asserting that he did not

have the benefit of an impartial jury. Thus, regardless of whether

a juror’s answer is honest or dishonest, it remains within a trial

court’s option, in determining whether a jury was biased, to order

a post-trial hearing at which the movant has the opportunity to

demonstrate actual bias or, in exceptional circumstances, that the

facts are such that bias is to be inferred.

464 U.S. at 556-57 (Blackmun, J., concurring). Justice Blackmun cited to

Justice O’Connor’s concurring opinion in Smith v. Phillips, 455 U.S. 209

(1982), where she suggested that bias may be presumed when, for exam-

ple, there is “a revelation . . . that the juror is a close relative of one of

the participants in the trial or the criminal transaction, or that the juror was

a witness or somehow involved in the criminal transaction.” Id. at 222

(O’Connor, J., concurring).

7

Justice Brennan’s concurrence, in which Justice Marshall joined,

agreed with the Court that less-than-complete information during voir dire

11962 FIELDS v. BROWN

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 employ-

ees 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 mem-

bers of your immediate families [have] ever been personally

interested in the defense of a criminal case or a witness for the

defense in a criminal case[.]” Id. at 516. Had he answered

truthfully, the trial court would have excused him. Id. at 517.

In these circumstances, we concluded that the juror’s sons’

involvement with heroin barred the inference that he served

impartially. Id.

does not by itself require a new trial, and would hold that “to be awarded

a new trial, a litigant should be required to demonstrate that the juror

incorrectly responded to a material question on voir dire, and that, under

the facts and circumstances surrounding the particular case, the juror was

biased against the moving litigant.” McDonough, 464 U.S. at 557-58

(Brennan, J., concurring in the judgment). He would also have recognized

that bias may be actual or implied (conclusively presumed as a matter of

law), and accordingly, disagreed with the Court “that a new trial is not

warranted whenever a prospective juror provides an honest answer to the

question posed.” Id. at 558-59.

FIELDS v. BROWN 11963

In Tinsley v. Borg, 895 F.2d 520 (9th Cir. 1990), in con-

trast, 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 dur-

ing 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 expe-

rience she found anxiety provoking. Id. At a hearing on Tins-

ley’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 pres-

ents 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 aver-

age 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 nei-

ther 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 infor-

mation 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 rel-

atives 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 con-

cluded that the juror plainly lied, and that her lies gave rise

11964 FIELDS v. BROWN

to an inference that she chose to conceal important facts in

order to serve as a juror and pass judgment on Dyer’s sen-

tence. 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 “pat-

tern 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 equivo-

cally when asked three times whether she could put her per-

sonal experience aside and serve impartially. Id. at 1110-11.

We held that denial of a cause challenge on either an express

or implied bias theory required reversal given the juror’s

responses to the court’s questions and the similarity between

her experience and the defendant’s alleged conduct. Id. at

1114.

[6] In sum, we have implied bias in those extreme situa-

tions “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 delibera-

tions 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 mate-

rial 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 v. BROWN 11965

Fields maintains that all the indicia for implied bias are

present as Hilliard and his wife went through a personal expe-

rience 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 conversa-

tions with her during the trial present the potential for sub-

stantial 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 reason-

able 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 retroac-

tive application by a federal court of a new rule of constitu-

tional law.8 We must decide whether this is so before reaching

the merits of Fields’s claim. Caspari v. Bohlen, 510 U.S. 383,

389 (1994) (instructing that if a state argues that the district

court granted a habeas petition on the basis of a new rule of

constitutional law that is Teague-barred, a court must address

the Teague issue first); Leavitt v. Arave, 383 F.3d 809, 816

(9th Cir. 2004) (per curiam) (same).

In the state’s view, a reasonable interpretation of precedent

from when Fields’s conviction became final9 would not allow

8

Teague v. Lane, 489 U.S. 288, 310 (1989) (holding, with exceptions,

that a decision announcing a constitutional rule of criminal procedure that

was not dictated by precedent existing at the time the defendant’s convic-

tion became final may not be applied on collateral review).

9

This date, for Teague purposes, is October 9, 1984, the date the United

States Supreme Court denied certiorari on Fields’s direct appeal, Fields v.

11966 FIELDS v. BROWN

a presumption of bias in the absence of a finding of juror dis-

honesty. 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; Eubanks, 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 conver-

sations that Hilliard had with his wife during trial are not

Teague-barred because extrinsic information has long impli-

cated the constitutional right to a fair trial. See, e.g., Remmer

v. United States, 347 U.S. 227, 229 (1954). He also argues

that implied bias based on deficient responses to voir dire

questions has been firmly established at least since McDo-

nough came down on January 18, 1984. In addition, Fields

points out that the concurring opinions in McDonough, and

our opinion in Allsup, embraced a standard for implied bias

that does not depend solely on dishonesty. See McDonough,

464 U.S. at 556-57 (Blackmun, Stevens and O’Connor, JJ.,

concurring); id. at 558 (Brennan and Marshall, JJ., concurring

in the judgment); Allsup, 566 F.2d at 71-72 (finding implied

bias even though juror disclosed she worked at a branch of the

bank that was robbed).

We agree with Fields that the implied bias doctrine existed

before 1984; we so held in Dyer. 151 F.3d at 984-85. But this

California, 469 U.S. 892 (1984). See Snook v. Wood, 89 F.3d 605, 612

(9th Cir. 1996) (explaining when a conviction becomes final for Teague

purposes). However, Fields assumes — and the state does not dispute —

that the relevant date is October 14, 1994, when the California Supreme

Court denied his exhaustion petition that raised the issue of juror bias for

the first time. There is no need for us to decide which is correct because

the result is the same either way.

FIELDS v. BROWN 11967

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 (1950), the court

considered the problem, but refused to find that government

employees were impliedly biased and thus automatically dis-

qualified from serving on a jury where the government is a

party. Id. at 172. Moreover, Justice O’Connor expressed the

view that implied bias should only be presumed in “extreme”

or “extraordinary” cases. Phillips, 455 U.S. at 222-23 & n.*

(O’Connor, J., concurring); see also Tinsley, 895 F.2d at 527

(quoting same). Examples she gave of what might count as an

“extreme” or “extraordinary” case were “a revelation that the

juror is an actual employee of the prosecuting agency, that the

juror is a close relative of one of the participants in the trial

or the criminal transaction, or that the juror was a witness or

somehow involved in the criminal transaction.” Phillips, 455

U.S. at 222 (O’Connor, J., concurring). McDonough, of

course, held that a party must demonstrate that a juror failed

honestly to answer a voir dire question that is material to

impartiality before a trial result could be invalidated. 464 U.S.

at 556. However, the concurring opinions indicated that they

did not understand the opinion to foreclose implied bias in the

absence of juror dishonesty on voir dire. Id. at 556-57 (Black-

mun, Stevens, and O’Connor, JJ., concurring); id. at 558-59

(Brennan and Marshall, JJ., concurring in the judgment). In

light of these cases we have previously observed that it is an

unresolved question whether dishonesty is a necessary predi-

cate 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.”).

11968 FIELDS v. BROWN

On the other hand, we decided in Allsup that bias could be

implied in the absence of 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 concur-

rence in Phillips that presuming bias despite an honest disclo-

sure 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).

[7] Teague aside, it is well accepted that bias may be pre-

sumed 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 formu-

lating categories of relationships which bar jurors from serv-

ing in certain types of trials.” 895 F.2d at 527.

[8] “Instead of formal categorization, the Supreme Court

has emphasized the existence of safeguards against actual

bias.” Id. at 527-28. The prime safeguard is voir dire. “In

most situations, voir dire, ‘the method we have relied on since

the beginning,’ should suffice to identify juror bias.” Id. at

528 (quoting Patton v. Yount, 467 U.S. 1025, 1038 (1984)).

FIELDS v. BROWN 11969

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 examina-

tion 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 war-

rant challenge for cause may assist parties in exercis-

ing their peremptory challenges. The necessity of

truthful answers by prospective jurors if this process

is to serve its purpose is obvious.

464 U.S. at 554 (citation omitted) (quoting Phillips, 455 U.S.

at 217).10 Accordingly, when the issue of bias arises after trial

10

Judge Berzon’s assertion that “dishonesty during voir dire has little to

do in general with the concerns underlying the implied bias doctrine,” Ber-

zon dissenting op. at 12041, is beguiling because of course it is true that

those concerns have nothing to do with honesty or dishonesty in voir dire;

concerns animating the implied bias doctrine are values in and of them-

selves. But it is not true that voir dire has nothing to do with protecting

those core values. That’s the whole point of voir dire: to elicit, through

11970 FIELDS v. BROWN

(as it did in McDonough and Tinsley) or, as here, on collateral

review of a conviction in state court, dishonesty in voir dire

is the critical factor. As McDonough explains, “it ill serves the

important end of finality to wipe the slate clean” when the

potentially disqualifying relationship is disclosed on voir dire

examination. 464 U.S. at 555.

[9] Hilliard honestly disclosed that his wife had been a vic-

tim 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’ involve-

ment 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 vul-

nerability to the same type of conduct for which the accused

bank robbers were on trial. Hilliard had no personal connec-

tion 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 recog-

nized that bias may be implied where close relatives of a juror

“have been personally involved in a situation involving a sim-

ilar fact pattern,” Tinsley, 895 F.2d at 528; Eubanks, 591 F.2d

careful inquiry, indicators of bias — actual, implied, or merely imagined

— in order to empanel a fair and impartial jury. If a prospective juror

responds honestly, then the markers for implied, or actual bias appear. It

is then up to the parties to pursue a challenge. When facts not dishonestly

concealed come to light after the trial is over, and there has been a full evi-

dentiary inquiry into whether the juror was really biased, there is no longer

any need to “imply” anything. We know the actual facts.

FIELDS v. BROWN 11971

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 suf-

ficient 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 a 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 Hil-

liard’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 Hil-

liard 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.’ ” Phil-

lips, 455 U.S. at 216 (quoting Dennis, 339 U.S. at 171-72);

see also id. at 215 (observing that “[t]his Court has long held

that the remedy for allegations of juror partiality is a hearing

in which the defendant has the opportunity to prove actual

bias”); Williams v. Taylor, 529 U.S. 420, 442-44 (2000)

(quoting Phillips on the point and reiterating that the defen-

dant may establish at an evidentiary hearing that a prospective

juror who arguably failed to tell the truth on voir dire was not

impartial).

[10] Knowing what we now know as a result of the eviden-

tiary 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 encoun-

ters. It is the role of voir dire to ferret out such relationships,

11972 FIELDS v. BROWN

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” sit-

uation 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

11

We note that this determination may depend upon testimony of the

juror in question. See, e.g., Phillips, 455 U.S. at 217 (rejecting argument

that a court cannot possibly ascertain the impartiality of a juror by relying

solely upon the juror’s testimony but must instead impute bias to jurors in

the questioned juror’s position); Dennis, 339 U.S. at 171 (observing that

“[o]ne may not know or altogether understand the imponderables which

cause one to think what he thinks, but surely one who is trying as an hon-

est man to live up to the sanctity of the oath is well qualified to say

whether he has an unbiased mind in a certain matter”).

12

See United States v. Powell, 226 F.3d 1181, 1189 (10th Cir. 2000)

(holding that juror whose daughter had been raped was not impliedly

biased in trial concerning kidnaping for sexual gratification and assault);

cf. Gonzales v. Thomas, 99 F.3d 978, 989-90 (10th Cir. 1996) (declining

to hold that a rape victim can never be an impartial juror in a rape trial as

it would “insult not only all rape victims but also our entire jury system,

which is built upon the assumption that jurors will honestly try ‘to live up

to the sanctity of [their] oath’ ”) (quoting Dennis, 339 U.S. at 171). See

also Jones v. Cooper, 311 F.3d 306, 312-13 (4th Cir. 2002) (refusing to

presume bias from the fact that juror’s relatives had been arrested and

tried); United States v. Torres, 128 F.3d 38, 46 (2d Cir. 1997) (declining

to hold that bias must be implied where juror has engaged in conduct simi-

lar to that of the defendant at trial). But see Hunley v. Godinez, 975 F.2d

316, 320 (7th Cir. 1992) (holding that burglary of sequestered jurors that

occurred during their deliberations concerning a similar burglary charge

was an extreme situation justifying presumption of bias).

FIELDS v. BROWN 11973

not.13 Rather, the effect of the spouse’s 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 contin-

uing 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

[11] Our conclusion that Hilliard was an impartial juror

remains the same whether conversations with his wife during

trial are considered together with his voir dire responses, or

separately from them. However, the conversations occurred

after the jury was sworn and so are analytically distinct from

his responses on voir dire.14 These conversations obviously

13

Relying on Tinsley, Judge Berzon’s dissent says that this observation

“is quite beside the point,” and that in fact the “struggle during the trial

over whether Diane Hilliard could attend” is “critical in assessing the

implied bias issue in this case.” Berzon dissenting op. at 12036. But Tins-

ley made the inherent nature of the relationship precisely the point for pur-

poses of the implied bias doctrine — not, as the dissent would have it,

whether some kind of “struggle” actually took place while the trial was

ongoing. 895 F.2d at 527 (focusing on the relationship). Whether some

kind of “struggle” took place is an individualized, subjective inquiry

appropriate to the question of whether prejudicial ex parte communica-

tions or extrinsic information infected the partiality of the jury, but it is not

germane to whether bias inheres in a particular relationship between the

juror and the litigation such that bias must be presumed (which is an

objective inquiry). Regardless, even if a struggle during trial were some-

how “critical,” there was no struggle that juror Hilliard participated in.

The evidentiary hearing resolved that issue.

14

Judge Berzon’s conclusion to the contrary collapses the distinct con-

cepts of implied bias — which arises intrinsically from an “extreme” and

“extraordinary” relationship between a juror and an aspect of the litigation

11974 FIELDS v. BROWN

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 impar-

tiality, or they could amount to an impermissible private com-

munication between a juror and a third person that, under

Mattox v. United States, 146 U.S. 140, 150 (1892), and Rem-

mer v. United States, 347 U.S. 227, 229 (1954), would invali-

date the verdict unless the communications were deemed

harmless.

Fields argues that the fact that Hilliard knew his wife seri-

ously 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 Hil-

liard 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

— and ex parte communication with, or extrinsic influence on, a juror.

Berzon, J., dissenting op. at 12036. To do so creates a novel, hybrid cate-

gory of implied bias that goes well beyond anything heretofore recog-

nized. While Teague is not implicated by the doctrine of implied bias of

the sort noted by Justice O’Connor’s concurrence in Phillips, 455 U.S. at

222-23 & n.*, Teague may be implicated by a new concept of bias cob-

bled out of a relationship plus alleged ex parte communications. Beyond

this, Judge Berzon’s approach fails to recognize that the remedy for alle-

gations of juror partiality stemming from events such as ex parte commu-

nications and extraneous information is an evidentiary hearing at which

the defendant has the opportunity to prove actual bias. See, e.g., Remmer

v. United States, 347 U.S. 227 (1954); Phillips, 455 U.S. at 216; Dennis,

339 U.S. at 171-72; Williams, 529 U.S. at 442-44; United States v.

Madrid, 842 F.2d 1090, 1094 (9th Cir. 1988) (citing these authorities and

reiterating the point in connection with alleged ex parte contact during

deliberations). Fields had such an opportunity, but failed to show actual

bias or prejudice.

FIELDS v. BROWN 11975

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 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 hus-

band was a juror on a case involving a young, African-

American male who had abducted and shot someone. She did

not know if Fields’s case involved rape charges. The district

court found that Hilliard never confused the crimes against his

wife with those that Fields committed, and he obeyed the trial

judge’s instruction not to discuss the case until it was over.

Further, Hilliard truthfully told the judge he would decide the

case on the evidence and the law given at trial, and nothing

else, and absolutely did so. Finally, the district court found

that the discussions did not delve deeply, if at all, into the

facts of Fields’s case and that Hilliard’s discussions with his

wife did not affect his ability to be fair and impartial.

[12] It is Hilliard’s impartiality that matters, not his wife’s.

As found by the district court, the two had no discussions dur-

ing 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 inef-

fective in failing to question Hilliard during voir dire about

the attack on his wife or about his ability to serve impartially.

To prevail under Strickland v. Washington, 466 U.S. 668

(1984), Fields must show that his “counsel’s performance was

deficient” and “that the deficient performance prejudiced the

defense.” Id. at 687. As the panel observed in Fields II, “it is

tough to imagine why [Fields’s counsel] did not pursue what

kind of assault Hilliard’s wife suffered, given that the non-

11976 FIELDS v. BROWN

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 preju-

diced. Strickland, 466 U.S. at 697 (observing that a court may

determine prejudice without first deciding deficiency). Preju-

dice 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. 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.

[13] As other claims having to do with the guilt phase have

been resolved and are not before us, and we now resolve the

juror bias issues in favor of the state, we affirm the judgment

denying habeas relief on all claims related to Fields’s convic-

tion.

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 declara-

tions 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 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 knowl-

FIELDS v. BROWN 11977

edge that other jurors can easily rebut, and a jury’s consider-

ing 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 delib-

erations the next day.15 White also consulted a dictionary for

15

The “for” side notes:

• “placate gods”

• “eye for eye”

• “deterrence”

• “Fitting punishment to crime”

• “Rights of victim”

• “Duty of the state to protect citizens”

• “Biblical”

“Genesis 9:6 ‘Whoso sheddeth man’s blood by man shall

his blood be shed, for in the image of God made He man’ ”

“Exodus 21:12 ‘He that smiteth a man, so that he dies,

shall surely be put to death’ ”

• “Possibility of Repeated offenses”

• “Murder = a rejection of the values of society”

• “New Test”

“Romans 13:1-5 ‘Let everyone be subject to the higher

authorities, for there exists no authority except from God,

and those who exist have been appointed by God. There-

fore, he who resists the authority, resists the ordinance of

God; and they that resist bring on themselves condemna-

tion

11978 FIELDS v. BROWN

definitions of the words “extenuation,” “vindication,” and

“mitigate,” and brought these notes to the jury room as well.16

‘For rulers are a terror not to the good work but to the evil.

Dost thou wish, then, not to fear the authority?

‘Do what is good and thou will have praise from it. For it

is God[’s] minister to thee for good. But if thou dost what

is evil, fear, for not without reason does it carry the sword.

For it is God’s minister, an avenger to execute wrath on

him who does evil. Wherefore you must needs be subject,

not only because of the wrath, but also for conscience’s

sake.’ ”

• “Luther, Calvin, Aquinas felt this to be supportive of capital

punishment” and

• “Per Paul’s letter to Romans: State has power for two reasons

— 1. Satisfy demand’s [sic] of God’s service [and] 2. Protect

society by deterring future crime.”

The “against” side notes:

• “No real deterrent value—mostly because murderers not nor-

mal”

• “Question of ‘Just’—There is no simple, ‘just,’ penalty”

• “Discriminatory selection”

• “Human fallibility—Perhaps wrong chap convicted.”

• “Rehabilitation”

• “ ‘Popular’ feelings”

16

The notes were:

Extenuation — to thin out — palliation, softening, whitewash,

gloss over, varnish, loophole, make allowance for

Vindication — justifiable, excusable, inculpable, blameless, legit-

imate not blameworthy . . . vindicable/extenuating

“The proper object of extenuate in its sense of making excuses

for is a word expressing something bad in itself, as guilt, coward-

ice, cruelty — not a neutral word such as conduct or behavior —

circumstances [sic]

“The meaning of excuse should not attach to extenuate, the

word.” VA [sic] Fowler

FIELDS v. BROWN 11979

The notes were shared or the information was received by at

least some 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 con-

sideration 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 delibera-

tive process may not. See, e.g., Sassounian v. Roe, 230 F.3d

1097, 1108-09 (9th Cir. 2000) (relying on a long line of pre-

cedent 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

Mitigate — soft, smooth, gentle, mild. abate, lessen, allay, atten-

uate, weaken, reduce, render or cause to be less, less harsh[,]

decrease, diminish, decrease, curtail quality, limit, narrow,

assuage.

17

Rule 606(b) provides:

Upon an inquiry into the validity of a verdict or indictment, a

juror may not testify as to any matter or statement occurring dur-

ing the course of the jury’s deliberations or to the effect of any-

thing upon that or any other juror’s mind or emotions as

influencing the juror to assent to or dissent from the verdict or

indictment or concerning the juror’s mental processes in connec-

tion therewith. But a juror may testify about (1) whether extrane-

ous prejudicial information was improperly brought to the jury’s

attention, (2) whether any outside influence was improperly

brought to bear upon any juror, or (3) whether there was a mis-

take in entering the verdict onto the verdict form. A juror’s affi-

davit or evidence of any statement by the juror may not be

received on a matter about which the juror would be precluded

from testifying.

11980 FIELDS v. BROWN

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 con-

cluded 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.

[14] Before turning to the merits, we must first decide

whether this claim is Teague-barred. See Caspari, 510 U.S. at

389; Leavitt, 383 F.3d at 816. The state’s position is that as

of the time Fields’s sentence became final, law binding on

state courts allowed the jury to exercise “ ‘unbridled discre-

tion 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 stat-

ute].’ ” Tuilaepa v. California, 512 U.S. 967, 979-80 (1994)

(quoting Zant v. Stephens, 462 U.S. 862, 875 (1983)). The

state also points out that as of that date, it was established law

that a capital jury “express[es] the conscience of the commu-

nity on the ultimate question of life or death.” Witherspoon v.

Illinois, 391 U.S. 510, 519 (1968). While these propositions

are undoubtedly so, and there is no Supreme Court authority

on Biblical references in the jury room, it is also true that as

of 1984 it was well established “in capital cases that the jury

should pass upon the case free from external causes tending

to disturb the exercise of deliberate and unbiased judgment.”

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

trict court’s ruling cannot be Teague-barred at this level of

generality.

In addition, we have been unwilling for Teague purposes to

require a case “involving identical facts, circumstances, and

legal issues.” Keating, 191 F.3d at 1061 n.11. The Sixth

Amendment inquiry in the context of outside influence on a

jury is fact-specific. Among other things, it requires a review-

ing court to determine whether the particular materials that a

FIELDS v. BROWN 11981

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

18

Factors we have identified for courts to consider in determining

whether jury exposure to facts not in evidence deprives a defendant of his

Sixth Amendment rights to confrontation, cross-examination and assis-

tance of counsel include:

(1) whether the extrinsic material was actually received, and if so,

how; (2) the length of time it was available to the jury; (3) the

extent to which the jury discussed and considered it; (4) whether

the material was introduced before a verdict was reached, and if

so, at what point in the deliberations it was introduced; and (5)

any other matters which may bear on the issue of . . . whether the

introduction of extrinsic material [substantially and injuriously]

affected the verdict.

Lawson v. Borg, 60 F.3d 608, 612 (9th Cir. 1995) (alterations in original)

(quoting Bayramoglu v. Estelle, 806 F.2d 880, 887 (9th Cir. 1986)). Judge

Berzon’s dissent truncates prong five so as to suggest that there is no

harmless error standard — and implies that the truncated version has been

our court’s test for “more than two decades.” Berzon, J., dissenting op. at

12020. In fact, the dissent’s quotation of the five-factor test is taken from

Bayramoglu, prong five of which was corrected in Lawson to take account

of Brecht v. Abramson, 507 U.S. 619 (1993). Thus, the truncated quote in

the dissent reads: “(5) any other matters which may bear on the issue . . . .”

whereas the true version of prong five states: “any other matters which

may bear on the issue of . . . whether the introduction of extrinsic material

[substantially and injuriously] affected the verdict.” Lawson, 60 F.3d at

612 (alterations and ellipses in original).

Other facts we have considered that might suggest the potential preju-

dice of extrinsic information is diminished in a particular case include:

11982 FIELDS v. BROWN

particularly difficult to conclude that the law applicable to a

discrete set of circumstances was dictated by precedent.

[15] The core principle is well-settled: evidence developed

against a defendant must come from the witness stand. In

Mattox, the bailiff remarked to jurors while they were deliber-

ating that the defendant had killed someone else, and a news-

paper 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 prejudi-

cial, between jurors and third persons, or witnesses, or the

officer in charge, are absolutely forbidden, and invalidate the

verdict, at least unless their harmlessness is made to appear.”

Mattox, 146 U.S. at 150. Remmer applied the rule to allega-

tions of bribery. See 347 U.S. at 228-30. In Turner v. Louisi-

ana, 379 U.S. 466, 473-74 (1965), jurors had continuous and

intimate contact with two key government witnesses. The

Court also held in Parker v. Gladden, 385 U.S. 363, 363-64

(1966), that the defendant’s Sixth Amendment rights were

violated where the bailiff told a juror the defendant was a

“wicked fellow” and that if there were anything wrong in

finding the defendant guilty, the Supreme Court would fix it.

We have found improper influence in similar circum-

stances, for example, when a juror received a threatening tele-

phone call at home, United States v. Armstrong, 654 F.2d

[1] whether the prejudicial statement was ambiguously phrased;

[2] whether the extraneous information was otherwise admissible

or merely cumulative of other evidence adduced at trial; [3]

whether a curative instruction was given or some other step taken

to ameliorate the prejudice; [4] the trial context; and [5] whether

the statement was insufficiently prejudicial given the issues and

evidence in the case.

Sassounian, 230 F.3d at 1109 (alterations in original) (internal quotation

marks omitted) (quoting Jeffries v. Wood, 114 F.3d 1484, 1491-92 (9th

Cir. 1997)).

FIELDS v. BROWN 11983

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 Bib-

lical verses and the other concepts contained in the notes are

notions of general currency that inform the moral judgment

that capital-case jurors are called upon to make. As Justice

Stevens put it, “[w]hile the question of innocence or guilt of

the offense is essentially a question of fact, the choice

between life imprisonment and capital punishment is both a

question of underlying fact and a matter of reasoned moral

judgment.” Sawyer v. Whitley, 505 U.S. 333, 370 (1992) (Ste-

vens, 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 opposi-

tion — “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

11984 FIELDS v. BROWN

N. R.R. Co., 870 F.2d 1454, 1461 (9th Cir. 1989))); Burling-

ton, 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 expe-

riences 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 dis-

cussion of the practical effect of imposing a sentence of life

without parole does not constitute reversible error, and hold-

ing that considering the sentences’ comparative costs doesn’t

either). It is difficult to see how sharing notes can be constitu-

tionally 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 para-

phrase a Biblical passage in closing argument in the penalty

phase of a capital case. See Sandoval v. Calderon, 241 F.3d

765, 776-77 (9th Cir. 2000). However, the prosecutor is con-

strained 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 pres-

ented at trial that is relevant to the jury’s decision as defined

by the instructions given by the court. Id. Also, the prosecu-

tion’s invocation of “higher law” or extra-judicial authority

violated the Eighth Amendment principle of narrowly chan-

neled sentencing discretion. Id. Further, we noted that argu-

ment involving religious authority undercuts the jury’s own

sense of responsibility for imposing the death penalty. Id. at

777. None of these considerations applies in similar fashion

to a juror; what may be improper or prejudicial when said by

a prosecutor may not be so when said by a juror.

[16] That said, we do not need to decide whether there was

juror misconduct because even assuming there was, we are

persuaded that White’s notes had no substantial and injurious

effect or influence in determining the jury’s verdict. Sas-

sounian, 230 F.3d at 1108 (applying Brecht19 standard on

19

Brecht, 507 U.S. at 623 (adopting standard for determining whether

error was harmless).

FIELDS v. BROWN 11985

habeas review of claim that jury considered extrinsic evi-

dence).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 communica-

tion occurred early on in deliberations. Jurors could take as

much time as they needed to sort through the evidence and

20

Judge Berzon’s dissent posits that under Lawson, “the relevant consti-

tutional question” is whether “ ‘even a single juror’s’ vote was ‘improp-

erly influenced.’ ” Berzon, J., dissenting op. at 12020. While it is certainly

correct that the Sixth Amendment right to an impartial jury is violated by

the presence of a single improperly influenced juror, Lawson, 60 F.3d at

613, Fields must nevertheless show that the extrajudicial information had

a substantial and injurious effect on the verdict under Brecht.

21

The arguments on both sides of the issue are well set out in the major-

ity and dissenting opinions in the Fourth Circuit’s decision in Robinson v.

Polk, 438 F.3d 350 (4th Cir. 2006) (holding that state court did not act

unreasonably in determining that the jury’s reading of Bible passages dur-

ing sentencing deliberations in a capital case did not violate the petition-

er’s Sixth Amendment rights), together with a concurrence in the denial

of rehearing en banc by Judge Wilkinson reported at 444 F.3d 225 (4th

Cir. 2006) (suggesting that juries be instructed to avoid discussing the

Bible as a source of authority for decision making). We also acknowledge

the California Supreme Court’s recent opinion in People v. Williams, 40

Cal. 4th 287, 305-09 (2006), which held that reading several verses from

the Bible, including Romans, Chapter 13, 1-4, although misconduct, was

not inherently and substantially likely to have influenced the jury under

California law.

Judge Berzon’s dissent claims that “federal and state appellate courts

generally agree when engaging in de novo review, that a jury engages in

the unconstitutional consultation of extrinsic material by introducing the

Bible into deliberations during a capital trial.” Berzon, J., dissenting op.

at 12011. For this proposition the lead (and only federal) citation is

McNair v. Campbell, 416 F.3d 1291, 1308 (11th Cir. 2005) (recognizing

“it is undisputed that jurors . . . considered extrinsic evidence during their

deliberations” when the jury foreperson read aloud from a Bible), cert.

denied, 126 S. Ct. 1828 (2006). However, the court in McNair held that

the issue was procedurally defaulted, stated that even if it weren’t there

was no prejudice, and made the remark quoted in the parenthetical as a

statement of fact.

11986 FIELDS v. BROWN

reflect on whether the ultimate penalty was the right penalty.22

More importantly, 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, 126 S. Ct. 2516, 2528

(2006); Richardson v. Marsh, 481 U.S. 200, 206 (1987)

(applying “the almost invariable assumption of the law that

jurors follow their instructions”).

[17] The aggravating evidence is powerful, as all judges

who have reviewed the record have remarked. In Justice

Broussard’s summary for the California Supreme Court,

22

Judge Gould’s dissent speculates that “White’s Bible quotations and

passages were a catalyst in convincing the jury to vote for a death sen-

tence,” Gould, J., dissenting op. at 11998, however this trenches into terri-

tory precluded by Rule 606(b). A long line of authority makes clear that

a court may not consider whether an outside influence caused a juror to

change his vote; the question of prejudice from extrinsic information is an

objective one, not a subjective one. See, e.g., Sassounian, 230 F.3d at

1108-09 (citing cases); Dickson v. Sullivan, 849 F.2d 403, 406 (9th Cir.

1988) (“the question of prejudice is an objective, rather than a subjective,

one”); United States v. Bagnariol, 665 F.2d 877, 884-85 (9th Cir. 1981)

(“Jurors may testify regarding extraneous prejudicial information or

improper outside influences. They may not be questioned about the delib-

erative process or subjective effects of extraneous information, nor can

such information be considered by the trial or appellate courts.”); Rushen

v. Spain, 464 U.S. 114, 121 n.5 (1983). Judge Berzon’s dissent similarly

relies upon the district court’s statement that “a majority of the jurors

favored a verdict of life without the possibility of parole until the jury dis-

cussed the Biblical references.” Berzon, J., dissenting op. at 12016. How-

ever, the only support for this statement is the Declaration of Delores

Henry, which — even assuming it may properly be considered — states

only that “there were several jurors, including herself, who favored an

LWOP sentence.” Nowhere does she say (again, even if it could properly

be considered, which it cannot be) that she changed her mind on account

of White’s notes. What the record shows is that White shared his notes

with at least some jurors around 9:30 in the morning and that the jury

reached a unanimous verdict around 3:00 p.m. Of course that means that

the verdict was reached “after” White shared his notes, but there is no

basis for surmising a causal link between the two.

FIELDS v. BROWN 11987

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 circum-

stances are generally horrifying crimes, but that

juries nevertheless return verdicts of life imprison-

ment without possibility of parole in more than half

the cases. But we think that even within this limited

sphere of reference, this case is among the most

aggravated.

In re Fields, 51 Cal. 3d 1063, 1079-80 (1991) (internal cita-

tion omitted). Given this, we see no prejudicial constitutional

error on account of the juror’s notes that requires issuance of

the writ.23

23

For this reason we do not reach the state’s remaining arguments for

reversal.

11988 FIELDS v. BROWN

[18] Dictionary definitions for terms used in the instruc-

tions 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 con-

sideration 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, assum-

ing 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.

24

Fields also raised a number of issues having to do with the penalty

phase, but we abide the panel’s disposition as to them. Accordingly, we

reinstate Parts IV and V of Fields III, 431 F.3d at 1199-1206.

FIELDS v. BROWN 11989

Volume 2 of 2

11990 FIELDS v. BROWN

GOULD, Circuit Judge, with whom MCKEOWN and

WARDLAW, Circuit Judges, join, concurring in part and dis-

senting 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 pun-

ishment. 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 delib-

erations 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 sentenc-

ing process. See e.g., Bennet v. Angelone, 92 F.3d 1336, 1346

(4th Cir. 1996); Coe v. Bell, 161 F.3d 320, 351 (6th Cir.

FIELDS v. BROWN 11991

1998); United States v. Giry, 818 F.2d 120 (1st Cir. 1987),

cert. denied, 484 U.S. 855 (1987). Appealing to the wisdom

of the Bible, as admirable as it is in other contexts, is beyond

doubt jury misconduct when the jury is given by the foreman

written and selected quotations from the Bible, which were

not introduced into evidence through a witness or subjected to

cross-examination, to aid in and influence jury deliberations.

The Sixth Amendment’s guarantees of a trial by an impar-

tial 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 (1965). “It is vital in capital

cases that the jury should pass upon the case free from exter-

nal causes tending to disturb the exercise of deliberate and

unbiased judgment.” Mattox v. United States, 146 U.S. 140,

149 (1892). These rights apply equally to sentencing proceed-

ings tried to a jury, as they do to guilt deliberations. See Mor-

gan v. Illinois, 504 U.S. 719, 727-28 (1992).

In declining to decide if the introduction of biblical quota-

tions and notes is juror misconduct, the majority argues that

Bible verses are not similar to extrinsic materials that we and

the Supreme Court have previously found prejudicial because

they are “notions of general currency that inform the moral

judgment” of capital-case jurors. See supra Section IV at

11983. This argument is unpersuasive.

To begin, the majority postulates that White’s researched

Bible verses and notes were “a mix of ideas ‘for’ and

‘against’ capital punishment.” See supra Section IV at 11983.

One need not be a biblical scholar to see that the list provided

by the foreperson was slanted by his personal judgments and

inclinations, and was intended to spur deliberations towards a

sentence of death rather than life imprisonment. On shear

numbers alone, White’s Bible references in favor of the death

penalty had at least thirteen separate entries, with over thirty-

one lines of writing and several lengthy direct quotations from

the Bible, including one quotation of thirteen lines of verse.

11992 FIELDS v. BROWN

See supra Section IV at 11977-78 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 pen-

alty 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 pen-

alty. 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 peace-

ably 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 quota-

tions were all “well-known themes,” and that he “marshaled

general, commonly known points in favor of the death penal-

ty.” See supra Section IV at 11983. The majority does not say

what percentage of the general public is familiar with each of

these quotations, even if that were assumed to be valid. If

these biblical verses are well known as “notions of general

currency,” why did White have to conduct research to pro-

duce 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,

FIELDS v. BROWN 11993

White conducted independent research of the Bible and dic-

tionary. 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 mem-

ory feats, it 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 reli-

gious 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 empha-

sized 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 respec-

tive 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 divi-

sive, 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

11994 FIELDS v. BROWN

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 forepersons 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 princi-

ples from philosophers?2 Does it include street-corner wisdom

1

See Polk II, 444 F.3d at 227 (Wilkinson, J., concurring) (“And the First

Amendment plainly illustrates that religion poses unique concerns within

our legal system. The Constitution does not, therefore, allow religious

considerations to replace legal ones.”); Shelly v. Kramer, 334 U.S. 1, 20

(1948) (“The judicial action in each case bears the clear and unmistakable

imprimatur of the State.”); see also Paul G. Kauper, Civil Liberties and

the Constitution, 141-52 (1st ed. paperback, The University of Michigan

Press 1966) (1962); Gary J. Simson & Stephen P. Garvey, Knockin’ on

Heaven’s Door: Rethinking the Role of Religion in Death Penalty Cases,

86 Cornell L. Rev. 1090, 1121 (2001); Terrence T. Egland, Prejudiced by

the Presence of God: Keeping Religious Material out of Death Penalty

Deliberations, 16 Cap. Def. J. 337, 356-66 (2004).

2

In 1974, the late Professor Black from Yale University Law School

wrote Capital Punishment: The Inevitability of Caprice and Mistake, a

FIELDS v. BROWN 11995

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 evi-

dence White introduced was that of a “higher law” from the

Bible. The United States Supreme Court has labored for dec-

ades to set applicable rules for death penalty cases that con-

strain 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 recon-

ciled 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

piece urging the end of the death penalty and rehearsing arguments pro

and con in it. Consider also, Mohandas K. Gandhi, My Faith in Non-

Violence, in SOCIAL AND POLITICAL PHILOSOPHY 542 (John Sommerville &

Ronald E. Santoni eds., Doubleday 1963) (“[W]herever you are con-

fronted with an opponent, conquer him with love.”). Could a jury foreper-

son or other juror bring written quotes from Professor Black’s book pro

and con on the death penalty? Perhaps Ghandi’s teachings would be

allowed? Introduction of these works, and others like them, would trans-

form jury deliberations into a discussion of the merits of the death penalty.

Yet, that debate, at least for United States legal purposes, has been put to

rest, by the Supreme Court decision in Gregg v. Georgia, 428 U.S. 153

(1976).

3

There is no shortage of popular authors who write on crime-related

subjects, among these consider the many novels of Scott Turow, Dean

Koontz, and others. Under the majority’s rule, might the foreperson have

summarized what Turow thinks, or what his fictional characters think,

about the death penalty? Certainly some would say these authors press and

post views of general currency in the world, and that is why they are best-

selling authors.

11996 FIELDS v. BROWN

statute provides specific factors the jury is to consider to dis-

tinguish “the few cases in which [the death penalty] is

imposed from the many in which it is not.” Godfrey v. Geor-

gia, 446 U.S. 420, 427 (1980) (internal quotation marks omit-

ted). 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 deter-

mine 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 sup-

plant 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 circu-

lated to, and discussed by, the jury collectively during its

deliberations. White’s introduction of extrinsic information,

especially extrinsic religious precepts from the Bible, was

juror misconduct. The Bible’s presence in the jury room as a

focus of deliberations, if I may borrow a phrase from Judge

Wilkinson, crossed “the constitutional line.” See Polk II, 444

F.3d at 226 27 (Wilkinson, J., concurring).

II

White’s sentence should be vacated if it is shown that the

juror misconduct error “had substantial and injurious effect or

FIELDS v. BROWN 11997

influence in determining the jury’s verdict.” Brecht v.

Abrahamson, 507 U.S. 619, 623 (1993) (quoting Kotteakos v.

United States, 328 U.S. 750, 776 (1946)).

The majority concludes White’s introduction of Bible quo-

tations and passages, and dictionary research was not prejudi-

cial primarily because: (1) it presumed that the jury followed

the trial court’s instructions to base its sentence verdict on the

facts and instructed law; and (2) Fields did not show influence

on the jury, nor was it apparent to the majority opinion in

light of Fields’s heinous crimes. See supra Section IV at

11984-85.

As a general rule, we presume that jurors follow the trial

court’s instructions. See Kansas v. Marsh, 126 S. Ct. 2516,

2528 (2006). But here the conclusion is inescapable that the

jury did not follow the trial court’s instructions. The trial

court charged the jury with determining whether to sentence

Fields to death or life imprisonment, and instructed the jury

to consider only the evidence presented at trial and the factors

enumerated in 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 11988. Yet, the

majority presumes that the jury followed the trial court’s

instructions in reaching its penalty verdict after consulting and

discussing the Bible quotations. See supra Section IV at

11986. What basis is there to presume, as the majority does,

that after consulting both the dictionary and the Bible for aid

in deliberations, that the jury members disregarded the secular

and divine insights gleaned from these sources and based the

sentencing decision on the facts and the law as stated by the

trial judge. Indeed, just the opposite is likely. This jury proved

it did not follow the trial court’s specific and explicit instruc-

11998 FIELDS v. BROWN

tions. Because of this, we should recognize that the jury disre-

garded 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 dis-

trict court, White’s written Bible quotations were discussed,

or made available to the jury, for about 70% of the total time

the jury deliberated. The jury on an initial vote, before seeing

these written Bible quotations, was more inclined to a life

sentence than to death.4 Given the authority of the Bible’s

“higher law,” and the time White was able to advocate for the

death sentence using these quotations, it is not a stretch to say

objectively that White’s Bible quotations and passages were

a catalyst in convincing the jury to vote for a death sentence.

We have good reason to suspect that here the change in the

jury’s views probably were related to the misconduct. Consid-

ering 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 intro-

duction of written researched Bible quotations into jury delib-

4

The majority opinion correctly points out that under Federal Rule of

Evidence 606(b) and our precedent we “may not consider whether an out-

side influence caused a juror to change his vote; the question of prejudice

from extrinsic information is an objective one.” See supra Section IV at

11986 n.22. Yet, my observation that a majority of jurors before seeing the

written Bible quotations were favoring a life sentence without parole is not

a subjective discussion on whether White’s Bible quotations and extrinsic

notes caused the jurors to change their votes. Rather, the court should rec-

ognize this fact as a starting point, similar to noting when White intro-

duced his outside written research into the deliberations. These facts

inform an objective analysis to determine if the introduction of White’s

improper Bible written quotations had a substantial and injurious effect or

influence in determining the jury’s verdict.

FIELDS v. BROWN 11999

erations had a “substantial and injurious” influence on the

jury’s verdict. Brecht, 507 U.S. at 623.

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 scrip-

ture. 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 ulti-

mate 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 sit-

uation was made worse by the evidence or extrinsic material

being of a religious nature that would unduly influence jurors.

The majority’s conclusion that any error was harmless is

entirely speculative, for it seems probable that an absence of

the marshaled biblical lore favoring death might have tilted at

least one juror from seeking the retribution of a death penalty

to embracing the mercy of life imprisonment.5 The timing, the

source of the external evidence or extrinsic material, the spec-

5

I have observed in another context: “As Shakespeare reminded us:

‘The quality of mercy is not strain’d, It droppeth as the gentle rain from

heaven Upon the place beneath.’ So too, in our analysis of prejudice, we

must remind ourselves that the possibility of mercy, like the possibility of

gentle rain, is not predictable with certainty.” Mayfield v. Woodford, 270

F.3d 915, 938 (9th Cir. 2001) (Gould, J., concurring) (in part quoting Wil-

liam Shakespeare, The Merchant of Venice, act IV, sc. 1.).

12000 FIELDS v. BROWN

ificity of the notes and the lopsided pro and con chart per-

suade me that the notes had a substantial and injurious

influence in determining the verdict. I respectfully dissent.

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 pre-

cepts 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 pro-

cess alone has long demanded.” Morgan v. Illinois, 504 U.S.

719, 727 (1992).

The federal district court held that Fields could not be con-

demned 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 disposi-

tive a juror’s assertions that he was able to disregard the close

FIELDS v. BROWN 12001

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 consti-

tutional rights, and why the majority’s lack-of-prejudice anal-

ysis 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 sub-

stantial emotional involvement, adversely affecting impartiali-

ty” 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 there-

fore “one of ‘those extreme situations where the relationship

between a . . . juror and some aspect of the litigation is such

that it is highly unlikely that the average person could remain

impartial in his deliberations under the circumstances.’ ” Id.

(quoting Person v. Miller, 854 F.2d 656, 664 (4th Cir. 1988)).

I.

Before proceeding to either discussion, however, I begin

with some reflections about the complex vision of the role of

1

I agree with the majority that Fields’s jury misconduct and jury bias

claims do not seek the retroactive application of law foreclosed by Teague

v. Lane, 489 U.S. 288 (1989).

12002 FIELDS v. BROWN

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 evi-

dently, 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 pre-

judgment that would be an obstacle to fair decisionmaking.

The perfect juror is then exposed only to that testimony, evi-

dence, 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 pres-

ented, 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 obvi-

ously, far from the whole story. As the stress we place on

obtaining a jury that represents a fair cross-section of a defen-

dant’s peers indicates, see, e.g., Taylor v. Louisiana, 419 U.S.

522, 530-31 (1975), we also recognize, and value, the diverse

perspectives jurors of different professions, racial back-

grounds, economic circumstances, residential areas, and polit-

ical 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 unbi-

ased jurors of average intelligence were likely to think the

same way with the same input, if jury deliberations were like

arithmetic or algebra, then we could do with one juror rather

than many. But we don’t, and we don’t want to. See Ballew

v. Georgia, 435 U.S. 223, 230-39 (1978) (holding that the

Constitution requires criminal juries to comprise at least six

members in part because a smaller size “leads to inaccurate

fact-finding and incorrect application of the common sense of

FIELDS v. BROWN 12003

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 ten-

dency 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 interro-

gation after the verdict is in are likely to pull punches — to

say less than they mean, to keep their reasons to themselves

and only pronounce bottom-line conclusions, and to fail to

respond to points made by fellow jurors. See McDonald v.

Pless, 238 U.S. 264, 267-68 (1915) (“But let it once be estab-

lished that verdicts solemnly made and publicly returned into

court can be attacked and set aside on the testimony of those

who took part in their publication and all verdicts could be,

and many would be, followed by an inquiry in the hope of

discovering something which might invalidate the finding. . . .

If evidence thus secured could be thus used, the result would

be to make what was intended to be a private deliberation, the

constant subject of public investigation; to the destruction of

all frankness and freedom of discussion and conference.”).

An additional consideration is, of course, the recognition

that jurors are simply human beings and human beings are not

perfect, whether in their recollection, their understanding of

language, or their ability fully to understand their own moti-

vations and reasoning processes. See McDonough Power

Equip., Inc. v. Greenwood, 464 U.S. 548, 555 (1984) (“The

varied responses to respondents’ question on voir dire testify

to the fact that jurors are not necessarily experts in English

usage. Called as they are from all walks of life, many may be

12004 FIELDS v. BROWN

uncertain as to the meaning of terms which are relatively eas-

ily 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 back-

grounds, 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 pro-

cedures include voir dire, designed to ferret out without

unduly intrusive inquiry those individuals who have a connec-

tion 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, fol-

lowing 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 deliberat-

ing 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 —

FIELDS v. BROWN 12005

and to the real possibility of exposure to media, to the opin-

ions 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 ver-

dict once it issues — limitations that are not absolute, but

which are designed to allow inquiry only into objective, exter-

nal factors that may have interfered with the jury’s function-

ing. See FED. R. EVID. 606(b) (“Upon an inquiry into the

validity of a verdict . . . , a juror may not testify as to any mat-

ter 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 testify about (1) whether extraneous prejudicial informa-

tion 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 circum-

stances 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

12006 FIELDS v. BROWN

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 estab-

lished 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 over-

come 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

2

Those factors were:

(a) The circumstances of the crime of which the defendant was

convicted in the present proceeding and the existence of any spe-

cial circumstances found to be true . . . .

(b) The presence or absence of criminal activity by the defendant

which involved the use or attempted use of force or violence or

the express or implied threat to use force or violence.

FIELDS v. BROWN 12007

determine whether the penalty to be imposed on defendant

shall be death or confinement in the State Prison for life with-

out 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

(c) Whether or not the offense was committed while the defen-

dant was under the influence of extreme mental or emotional dis-

turbance.

(d) Whether or not the victim was a participant in the defendant’s

homicidal conduct or consented to the homicidal act.

(e) Whether or not the offense was committed under circum-

stances which the defendant reasonably believed to be a moral

justification or extenuation for his conduct.

(f) Whether or not the defendant acted under extreme duress or

under the substantial domination of another person.

(g) Whether or not at the time of the offense the capacity of the

defendant to appreciate the criminality of his conduct or to con-

form his conduct to the requirements of law was impaired as a

result of mental disease or the affects [sic] of intoxication.

(h) The age of the defendant at the time of the crime.

(i) Whether or not the defendant was an accomplice to the

offense and his participation in the commission of the offense

was relatively minor.

(j) Any other circumstance which extenuates the gravity of the

crime even though it is not a legal excuse for the crime.

CAL. PENAL CODE § 190.3 (1977).

12008 FIELDS v. BROWN

851, 854 (9th Cir. 1980) (explaining that a jury’s consider-

ation 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 dictio-

nary) 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 con-

sulting 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 (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 com-

mand to execute murderers:

The Biblical passages cited by Juror White were not

general passages dealing with morality or the com-

monplace principle that capital punishment is per-

missible 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. BROWN 12009

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 indi-

vidualized process for determining whether a defendant

should be executed:

After having heard and received all of the evidence,

the trier of fact shall consider, take into account and

be guided by the aggravating and mitigating circum-

stances referred to in this section,[3] and shall deter-

mine 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 (1980),

overruled on other grounds by People v. Cromer, 24 Cal. 4th

889 (2001). Accordingly, “religious doctrine, commandments

or biblical passages” are “factors outside section 190.3.” Peo-

ple v. Sandoval, 4 Cal. 4th 155, 193-94 (1992), aff’d on other

grounds, 511 U.S. 1 (1994).

By introducing the absolutist Biblical commands into delib-

erations, 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:

3

See supra note 2.

12010 FIELDS v. BROWN

[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 reli-

gious 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 Consti-

tution.”).5 Substantively, then, there is no doubt that the Bibli-

4

I fail to understand the majority’s claim that the jury’s own decision

to deliberate based upon the Bible is less violative of the constitutional

requirement of narrowly channeled sentencing discretion or prohibition on

undercutting the jury’s sense of responsibility for imposing death than a

prosecutor urging the same effect. Maj. op. at 11984. The ultimate sub-

stantive concern is how the jury actually deliberates, not who caused them

to deliberate in an unconstitutional manner.

5

In a closely related context, the Supreme Court has been emphatic that

the Sixth Amendment guarantee to “the impartiality of any jury that will

undertake capital sentencing” includes the guarantee that jurors will not

simply vote to impose the death penalty for any murder. Morgan, 504 U.S.

at 728. As a result, a death sentence is unconstitutional if the jury includes

“even one” juror who “will fail in good faith to consider the evidence of

aggravating and mitigating circumstances as the instructions require him

to do.” Id. at 729 (emphasis added); see also Wainwright v. Witt, 469 U.S.

412, 422 (1985) (allowing a potential juror to be removed for cause when

his voir dire answers suggest that “he refuses to follow the statutory

scheme” and instead “might vote for death under certain personal stan-

dards” (emphases omitted)).

FIELDS v. BROWN 12011

cal 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 dur-

ing deliberations, federal and state appellate courts generally

agree when engaging in de novo review, that a jury engages

in the unconstitutional consultation of extrinsic material by

introducing the Bible into deliberations during a capital trial.

McNair v. Campbell, 416 F.3d 1291, 1308 (11th Cir. 2005)

(recognizing “it is undisputed that jurors . . . considered

extrinsic evidence during their deliberations” when the jury

foreperson read aloud from a Bible), cert. denied, 126 S. Ct.

1828 (2006);6 Jones v. Kemp, 706 F. Supp. 1534, 1559 (N.D.

Ga. 1989) (holding the use of a Bible by the jury constituted

an impermissible “search for the command of extra-judicial

‘law’ from [a] source other than the trial judge”); McNair v.

State, 706 So. 2d 828, 837 (Ala. Crim. App. 1997) (analyzing

a jury’s use of the Bible during deliberations according to the

“well settled principle of law . . . [that] is fundamental to a

fair trial . . . that jurors should consider only the evidence

presented at trial” (quoting Ex parte Troha, 462 So. 2d 953,

954 (Ala. 1984)) (internal quotation mark omitted)); People v.

Danks, 32 Cal. 4th 269, 308 (2004) (holding a juror engaged

in misconduct by “bringing a copy of the [Biblical] passage

into the jury room, and passing it around to the other jurors”);

People v. Harlan, 109 P.3d 616, 629 (Colo. 2005) (holding

the use of written Biblical materials in the jury room was

improper under state law that prohibited “[e]xposure of a jury

to information or influences outside of the trial process

itself”); State v. Harrington, 627 S.W.2d 345, 350 (Tenn.

6

The majority says that McNair referred to the Bible extracts as “extrin-

sic evidence” only “as a statement of fact.” Maj Op. at 11986 n.22. The

Eleventh Circuit so stated in a section called the “Merits,” and after a

lengthy paragraph setting out the standards applicable to assessing the

impact of extrinsic evidence. See McNair, 416 F.3d at 1307-08. In context

the “undisputed” comment is not simply a statement of the parties’ posi-

tions but an indication that the point is so obvious as to be indisputable.

12012 FIELDS v. BROWN

1981) (holding error occurred when “the jury foreman but-

tressed his argument for imposition of the death penalty by

reading to the jury selected biblical passages”); Lenz v. War-

den of the Sussex I State Prison, 593 S.E.2d 292, 298-99 (Va.

2004) (analyzing defendant’s claim that a Bible was present

in the jury room pursuant to the Supreme Court’s test for

improper extraneous jury contacts).7 Although several of these

cases involve the presence of a complete copy of the Bible in

the jury room, making only certain portions available exacer-

bates, 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 con-

doning mercy in some instances. See Dissent of Gould, J. at

11994-95 n.2.

Unable to rely on case law, the majority suggests that

White’s conduct was not misconduct because the notes “are

notions of general currency that inform the moral judgment

that capital-case jurors are called upon to make.” Maj. op. at

11983. Initially, I note that the majority’s observation would

likely be challenged by tens of millions of Americans who

view the Bible not as a collection of “notions” about moral

principles, but as a repository of hard-and-fast imperatives

that must direct daily life. See Robinson v. Polk, 438 F.3d

350, 374 (4th Cir.) (King, J., dissenting) (“[T]he majority

ignores the fact that the Bible is an authoritative code of

morality — and even law — to a sizable segment of our popu-

lation.”), cert. denied 127 S. Ct. 514 (2006). White’s notes

were therefore significant for their factual representation that

the Bible contained such statements, apart from the moral phi-

losophy that the statements themselves expressed.

7

The Fourth Circuit has held that a state trial court did not contravene

clearly established Supreme Court case law by refusing to consider a

claim that jurors engaged in misconduct by reading from a Bible during

deliberations. Robinson v. Polk, 438 F.3d 350, 363-64 (4th Cir.), cert.

denied, 127 S. Ct. 514 (2006). The court noted, however, that “our answer

could possibly be different on de novo review.” Id. at 363.

FIELDS v. BROWN 12013

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 vio-

lated the principle that capital sentencing must be individual-

ized. 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 con-

template in the course of undertaking their awesome responsi-

bility. See Robinson, 444 F.3d at 227 (Wilkinson, J.,

concurring in the denial of rehearing en banc) (“There is a dif-

ference 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 problem-

atic. . . . 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 sim-

ply “general, commonly known points in favor of the death

penalty,” and “[i]t is difficult to see how sharing notes can be

constitutionally infirm if sharing memory isn’t.” Maj. op. at

11983-84. But this suggested equivalence disregards the care-

ful balance between the various precepts regarding jury delib-

erations I discussed at the outset. In fact, as Morgan makes

clear, a juror who voted for the death penalty on the basis of

the absolutist position sanctioned by the Biblical quotations

White placed before his fellow jurors would violate his oath

to follow California law. For quite separate reasons — princi-

12014 FIELDS v. BROWN

pally, 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 delibera-

tions 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 free-

way speeds”); McDowell v. Calderon, 107 F.3d 1351, 1367

(9th Cir.) (juror argued during deliberations that “a sentence

of life without parole . . . wouldn’t mean ‘without parole’ ”),

vacated en banc in other parts, 130 F.3d 833 (9th Cir. 1997);

Hard v. Burlington N. R.R. Co., 870 F.2d 1454, 1462 (9th Cir.

1989) (juror made arguments during deliberations based on

his prior military experience interpreting x-rays). But these

cases are based on the proposition that “the general knowl-

edge, 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, percep-

tion, 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 deci-

sion made on the basis of what went on in the courtroom, fil-

FIELDS v. BROWN 12015

tered 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 author-

ity quite different from a paraphrase or one line quotations

spoken from memory, not least because they could be con-

sulted repeatedly and outside of White’s immediate presence.

The written, lengthy quotations introduced tangibly an exter-

nal 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 simi-

lar to “sharing memory,” and this case does not raise the ques-

tion of whether jurors act impermissibly by referring to their

faith during deliberations. See Maj. op. at 11983-84.

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,

12016 FIELDS v. BROWN

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 dis-

cussed the notes that an unanimous decision

in favor of death was reached.

Juror Hilliard stated that, “[t]he jury foreman pres-

ented to us, and we discussed, information which he

had brought from home, including excerpts from the

Bible and definitions. It was after these discussions

that we were able to reach a unanimous verdict in

favor of recommending the imposition of the death

penalty.” Juror White stated that he “brought the

notes to the penalty phase jury deliberations and the

contents of these notes were discussed during our

deliberations.”

Respondent has submitted declarations from sev-

eral jurors in which they stated that they did not

recall any discussion of the Bible or dictionary defi-

nitions. However, the declarations submitted by

respondent confirm the Court’s finding that Biblical

references were provided by Juror White and dis-

cussed by the jury.

...

. . . [I]n this case, there is evidence that a majority

of the jurors favored a verdict of life without the pos-

sibility 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).

FIELDS v. BROWN 12017

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 testi-

mony about the consideration of extrinsic evidence” but can-

not 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 intro-

duction 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 (1892) (holding, after examining the common

law restrictions against impeaching verdicts through juror tes-

timony, 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 Bib-

lical 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 review-

ing 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 neces-

sary to obtain more evidence is, by itself, an indication that

8

The majority finds no fault with the district court’s application of Rule

606(b). See Maj. op. at 11979.

12018 FIELDS v. BROWN

there may have been a need to resolve some lingering hesita-

tion 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 pro-

viding justification for the imposition of the death penalty,”

and its invocation during the sentencing phase of a capital

trial “cloak[s] the State with God’s authority.” Sandoval, 241

F.3d at 775, 779. We held in Sandoval that a prosecutor’s

allusion to that passage, in concert with other religious refer-

ences, prejudiced a defendant’s right to be sentenced accord-

ing 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 per-

suade 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 prosecu-

tor’s invocation of the Bible as more damaging than its actual

entry into the jury room, Maj. op. at 11984, our case law and

common sense dictate the opposite conclusion: A fellow

juror’s introduction of such material into the jury room has an

even greater potential for a prejudicial effect, because the

defendant is unable to mitigate the jury’s consideration of the

Bible as he can when the prosecutor brings it into the trial —

for example, by tailoring his closing argument to account for

the religious arguments or by insuring that the judge instructs

the jury to consider only the relevant statutory factors. See

Gibson, 633 F.2d at 854 (“[W]hen a jury considers facts that

have not been introduced in evidence . . . the violation may

be more serious than where these rights are denied at some

other stage of the proceedings because the defendant may

have no idea what new evidence has been considered. It is

FIELDS v. BROWN 12019

impossible to offer evidence to rebut it, to offer a curative

instruction, to discuss its significance in argument to the jury,

or to take other tactical steps that might ameliorate its

impact.”). Moreover, we do not know whether any juror in

Sandoval paid any attention to the prosecutor’s Biblical refer-

ences. But we do know that at least one juror in this case —

White — was sufficiently concerned about what the Bible

said about the death penalty to spend time copying out

lengthy quotations and that other jurors reviewed the pas-

sages. So we have here direct evidence of an impact on the

jury deliberations that was lacking in Sandoval.

Other courts have also recognized the specially prejudicial

nature of a jury’s consideration of Biblical material. One fed-

eral district court has held that a jury’s consultation of a Bible

during penalty phase deliberations “may be highly prejudicial

to the defendant” because it represents “a source which

‘would likely carry weight with laymen and influence their

decision.’ ” Jones, 706 F. Supp. at 1560 (quoting Wilson v.

Kemp, 777 F.2d 621, 626 (11th Cir. 1985)). Likewise, Colora-

do’s Supreme Court has found prejudice from the introduction

of the Bible into deliberations: “[A]t least one juror in this

case could have been influenced by these authoritative pas-

sages to vote for the death penalty when he or she may other-

wise have voted for a life sentence” because “[t]he Bible and

other religious documents are considered codes of law by

many in the contemporary communities from which . . . jurors

are drawn.” Harlan, 109 P.3d at 630-31.

2. Given the nature of the extrinsic information involved

in this case and the manner in which it was received by the

jury, the majority’s reversal of the district court on no-

prejudice grounds is inexplicable. In so ruling, the majority

determines that the notes had “no substantial and injurious

effect or influence in determining the jury’s verdict” and

holds this lack of impact precludes habeas relief pursuant to

Brecht v. Abrahamson, 507 U.S. 619 (1993). Maj. op. at

11984.

12020 FIELDS v. BROWN

The Supreme Court’s requirement in Brecht that habeas

relief be granted only when an error has a “substantial and

injurious effect” was derived from the harmless-error standard

enunciated in Kotteakos v. United States, 328 U.S. 750

(1946). 507 U.S. at 623. Kotteakos explains our task in con-

ducting this variety of harmless-error review:

If, when all is said and done, the [court’s] conviction

is sure that the error did not influence the jury, or

had but very slight effect, the verdict and the judg-

ment should stand . . . . But if one cannot say, with

fair assurance, after pondering all that happened

without stripping the erroneous action from the

whole, that the judgment was not substantially

swayed by the error, it is impossible to conclude that

substantial rights were not affected. The inquiry can-

not be merely whether there was enough to support

the result, apart from the phase affected by the error.

It is rather, even so, whether the error itself had sub-

stantial influence. If so, or if one is left in grave

doubt, the conviction cannot stand.

328 U.S. at 764-65; see also Payton v. Woodford, 346 F.3d

1204, 1218 (9th Cir. 2003) (en banc) (explaining that our

Brecht inquiry must reflect the “greater need for reliability”

in the death penalty context (quoting Coleman v. Calderon,

210 F.3d 1047, 1050 (9th Cir. 2000)) (internal quotation

marks omitted)), rev’d on other grounds sub nom. Brown v.

Payton, 544 U.S. 133 (2005). Where the contention is that the

jury improperly considered extrinsic information, this Brecht

inquiry must focus upon the extrinsic material’s impact on

any juror, because “even a single juror’s improperly influ-

enced vote deprives the defendant of an unprejudiced, unani-

mous verdict.” Lawson v. Borg, 60 F.3d 608, 613 (9th Cir.

1995); see also Sassounian, 230 F.3d at 1110.

This circuit for more than two decades has relied on a five-

factor test to determine in the habeas context whether extrin-

FIELDS v. BROWN 12021

sic information is prejudicial. That test requires us to con-

sider:

(1) whether the material was actually received, and

if so, how; (2) the length of time it was available to

the jury; (3) the extent to which the jury discussed

and considered it; (4) whether the extrinsic material

wa

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