# Fields v. Brown

> Court of Appeals for the Ninth Circuit · September 10, 2007

URL: https://www.frixlaw.com/law-library/cases/3050054

## Case

- **Court:** Court of Appeals for the Ninth Circuit
- **Decided:** September 10, 2007
- **Precedential status:** Published
- **Opinion:** Opinion
- **Nature of suit:** Habeas
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3050054

## How later opinions describe it (automated extraction)

- holding that implied bias applied to two bank tellers in a trial concerning the robbery of another branch of the bank for which they worked
- describing implied bias as “a bias attributable in law to the prospective juror regardless of actual partiality”

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3050054. Public record. Not legal advice.