Fields v. Brown

GOULD, Circuit Judge,

with whom McKEOWN and WARDLAW, Circuit Judges, join,

concurring in part and dissenting in part:

I concur in Sections I, II, and III of Judge Rymer’s majority opinion insofar as it rejects the bias claims urged by Fields as grounds for habeas relief from his conviction. I respectfully dissent, however, from the majority’s analysis in Section IV of the challenged introduction by the jury foreman of written biblical quotations and notes “for” and “against” capital punishment. I disagree with the majority’s decision not to decide if this extraordinary appeal of the jury foreman to “higher law” of the Bible constituted jury misconduct. I also disagree with the majority’s conclusion that the use of written Bible quotations and notes in this manner during jury deliberations did not have any substantial injurious effect on the jury deliberations and death sentence.

I

It is error here to sidestep the issue of jury misconduct. It is well-settled that religion may not play a role in the sentencing process. See e.g., Bennett v. Angelone, 92 F.3d 1336, 1346 (4th Cir.1996); Coe v. Bell, 161 F.3d 320, 351 (6th Cir.1998); United States v. Giry, 818 F.2d 120 (1st Cir.1987), cert. denied, 484 U.S. 855 , 108 S.Ct. 162 , 98 L.Ed.2d 116 (1987). Appealing to the wisdom of the Bible, as admirable as it is in other contexts, is beyond doubt jury misconduct when the jury is given by the foreman written and selected quotations from the Bible, which were not introduced into evidence through a witness or subjected to cross-examination, to aid in and influence jury deliberations.

The Sixth Amendment’s guarantees of a trial by an impartial jury and the right of confrontation require that the jury base its verdict on the evidence presented at trial. Turner v. Louisiana, 379 U.S. 466, 472-73 , 85 S.Ct. 546 , 13 L.Ed.2d 424 (1965). “It is vital in capital cases that the jury should pass upon the case free from external causes tending to disturb the exercise of deliberate and unbiased judgment.” Mattox v. United States, 146 U.S. 140, 149 , 13 *784 S.Ct. 50 , 36 L.Ed. 917 (1892). These rights apply equally to sentencing proceedings tried to a jury, as they do to guilt deliberations. See Morgan v. Illinois, 504 U.S. 719, 727-28 , 112 S.Ct. 2222 , 119 L.Ed.2d 492 (1992).

In declining to decide if the introduction of biblical quotations and notes is juror misconduct, the majority argues that Bible verses are not similar to extrinsic materials that we and the Supreme Court have previously found prejudicial because they are “notions of general currency that inform the moral judgment” of capital-case jurors. See supra Section IV at 780. This argument is unpersuasive.

To begin, the majority postulates that White’s researched Bible verses and notes were “a mix of ideas ‘for’ and ‘against’ capital punishment.” See supra Section IV at 780. One need not be a biblical scholar to see that the list provided by the foreperson was slanted by his personal judgments and inclinations, and was intended to spur deliberations towards a sentence of death rather than life imprisonment. On sheer numbers alone, White’s Bible references in favor of the death penalty had at least thirteen separate entries, with over thirty one lines of writing and several lengthy direct quotations from the Bible, including one quotation of thirteen lines of verse. See supra Section IV at 777 n. 15. Conversely, the “con” side had no Bible quotations and a mere six entries on six written lines. Additionally, the “con” list was comprised of piecemeal ideas and thoughts, whereas the “pro” death penalty list contains numerous references to higher law from the Bible such as an “eye for eye” and “‘[l]et everyone be subject to the higher authorities, for there exists no authority except from God.’ ” See id. Missing from the “con” list are biblical quotes that might have been marshaled against the death penalty. See e.g., Romans 12:17-19 (King James): “Recompense to no man evil for evil. Provide things honest in the sight of all men. If it be possible, as much as lieth in you, live peaceably with all men. Dearly beloved, avenge not yourselves, but rather give place unto wrath: for it is written, Vengeance is mine; I will repay, saith the Lord.”; Deut. 21:18-21; Exod. 31:14-15. The extreme lopsided nature of the pro and con lists simply underscores the emphasis White placed on Biblical justification of the death penalty.

Moreover, I think it fanciful for the majority to say that the Bible quotations are merely “notions of general currency that inform the moral judgment that capital-case jurors are called upon to make.” The majority claims that White’s Bible quotations were all “well-known themes,” and that he “marshaled general, commonly known points in favor of the death penalty.” See supra Section IV at 780. The majority does not say what percentage of the general public is familiar with each of these quotations, even if that were assumed to be valid. If these biblical verses are well known as “notions of general currency,” why did White have to conduct research to produce them? It is one thing to say something is common knowledge when a person recites it from memory, but it is quite a different thing altogether to argue that a Bible verse is common knowledge when a person has to research the Bible, and write down text to remember it.

Certainly, the majority is not claiming that each and every word of the entire Bible is common knowledge? In this case, White conducted independent research of the Bible and dictionary. He wrote down his results to present during jury deliberations the following day. Furthermore, White didn’t simply jot down a few biblical catch-phrases, but instead he wrote down over seventeen lines of quoted text. Putting aside biblical scholars and persons capable of extraordinary memory feats, it *785 is unlikely that for many persons seventeen lines of biblical text, and indeed thirteen consecutive lines from one quote, can be viewed as a “notion of general currency.”

Moreover, even if these can be characterized sensibly as “notions of general currency,” then are they notions that some jurors might view as divinely commanded or inspired? If these quotes from the Bible are “notions of general currency,” then would the majority say that the same is true if the foreperson had brought in written quotations from other religious texts, whether those of Bhuddism, Hinduism, or Islam, or even of other religions that command smaller groups of adherents? As Judge Wilkinson of the Fourth Circuit emphasized in his concurring opinion in Robinson v. Polk (Polk II):

Though many of its teachings are universal, the Bible nonetheless remains a sectarian text that serves as the theological foundation for certain religions and not others. If it could be brought into the jury room as a basis for discussion and debate upon the ultimate punishment the state may impose, it would be only a short while before jurors of different faiths brought their own holy texts into the conversation. The jury room is not the place to debate the respective merits of the Bible, the Koran, the Torah, or any other religious scripture that Americans revere, nor is it the proper forum for a clash between belief and non-belief. These discussions would likely be divisive, and might range far afield from the appropriate legal and factual inquiry. In a pluralistic America, the jury room must remain a place of common ground firmly rooted in law, irrespective of deeply and sincerely held religious differences.

444 F.3d 225, 227 (4th Cir.2006).

If the majority’s rule applies only to the introduction of quotes from the Judaeo-Christian Bible, then this introduces something akin to an Establishment Clause violation into the heart of the jury room. 1 If quotes from the Bible are okay, what if the foreman had brought in quotes from the Koran, or from a particular fatwa, indicating that some terrorist act of murder was okay under a different religious text. Surely it cannot be our law that jury 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 principles from philosophers? 2 Does it include *786 street-corner wisdom such as might be found in popular novels of any number of current authors whose books line the supermarket shelves? 3

This is not merely a case presenting juror misconduct in introducing extrinsic evidence. It is worse because the evidence White introduced was that of a “higher law” from the Bible. The United Stales Supreme Court has labored for decades to set applicable rules for death penalty cases that constrain the exercise of discretion by jurors and that help ensure that when the death penalty is implemented it is based on law. That means that it is based on secular law, not on the law of God or of any particular juror’s view of that law.

The “use by deliberating jurors of an extrajudicial code (not already embodied in their own characters) cannot be reconciled with the Eighth Amendment’s requirement that any decision to impose death must be the result of discretion which is carefully and narrowly channeled and circumscribed by the secular law of the jurisdiction.” Jones v. Kemp, 706 F.Supp. 1534, 1559 (N.D.Ga.1989). California’s death penalty statute provides specific factors the jury is to consider to distinguish “the few cases in which [the death penalty] is imposed from the many in which it is not.” Godfrey v. Georgia, 446 U.S. 420, 427 , 100 S.Ct. 1759 , 64 L.Ed.2d 398 (1980) (internal quotation marks omitted). Here, White introduced to the jury deliberations only Bible quotations that were pro death penalty, and left out Bible quotations that spoke to mercy. Moreover, the passages from which White quoted “explicitly reject[ ] the drawing of distinctions in murder cases,” Jones, 706 F.Supp. at 1559-60 , and directed the jury to impose death in any case involving murder. These Bible passages, commanding death, inserted “higher law” into the jury deliberations and unconstitutionally relieved the jury from their individual responsibility to determine whether to commit Fields to death or sentence him to life imprisonment. See Polk II, 444 F.3d at 227 (Wilkinson, J., concurring) (reasoning that the Bible’s “place as a canon of scriptural authority is so powerful that it threatens to supplant the individualized sentencing inquiry into the nature and consequences of the crime and the particular aggravating and mitigating circumstances”); People v. Harlan, 109 P.3d 616, 631 (Colo.2005) (reasoning that the Bible, as higher law, is very persuasive to a typical juror as it relieves “the juror from his or her individual responsibility to determine whether to commit a person to death because God commands that result”).

Here, White introduced Biblical quotations and passages into the jury deliberations. The Bible quotations were circulated to, and discussed by, the jury *787 collectively during its deliberations. White’s introduction of extrinsic information, especially extrinsic religious precepts from the Bible, was juror misconduct. The Bible’s presence in the jury room as a focus of deliberations, if I may borrow a phrase from Judge Wilkinson, crossed “the constitutional line.” See Polk II, 444 F.3d at 226-27 (Wilkinson, J., concurring).

II

White’s sentence should be vacated if it is shown that the juror misconduct error “had substantial and injurious' effect or influence in determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 623 , 113 S.Ct. 1710 , 123 L.Ed.2d 353 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776 , 66 S.Ct. 1239 , 90 L.Ed. 1557 (1946)).

The majority concludes White’s introduction of Bible quotations and passages, and dictionary research was not prejudicial primarily because: (1) it presumed that the jury followed the trial court’s instructions to base its sentence verdict on the facts and instructed law; and (2) Fields did not show influence on the jury, nor was it apparent to the majority opinion in light of Fields’s heinous crimes. See supra Section TV at 781-82.

As a general rule, we presume that jurors follow the trial court’s instructions. See Kansas v. Marsh, — U.S. —, 126 S.Ct. 2516, 2528 , 165 L.Ed.2d 429 (2006). But here the conclusion is inescapable that the jury did not follow- the trial court’s instructions. The trial court charged the jury with determining whether to sentence Fields to death or life imprisonment, and instructed the jury to consider only the evidence presented at trial and the factors enumerated in California Penal Code § 190.3. The jury was not to consider external materials, including the dictionary or the Bible, during its penalty phase deliberations. But that is precisely what they did.

The majority admits that it was misconduct for the jury to disregard the trial court’s instructions and research definitions in a dictionary. See supra Section IV at 783. Yet, the majority presumes that the jury followed the trial court’s instructions in reaching its penalty verdict after consulting and discussing the Bible quotations. See supra Section IV at 782. What basis is there to presume, as the majority does, that after consulting both the dictionary and the Bible for aid in deliberations, that the jury members disregarded the secular and divine insights gleaned from these sources and based the sentencing decision on the facts and the law as stated by the trial judge. Indeed, just the opposite is likely. This jury proved it did not follow the trial court’s specific and explicit instructions. Because of this, we should recognize that the jury disregarded the trial court’s instructions and based their death sentence not only on the facts and law as stated by the judge, but also on the insight and independently researched support garnered from the Bible and dictionary.

The majority’s prejudice analysis is wishful thinking. White’s written researched Bible quotations and passages in favor of the death penalty were introduced to the jury at the start of the second day of deliberations. According to the district court, White’s written Bible quotations were discussed, or made available to the jury, for about 70% of the total time the jury deliberated. The jury on an initial vote, before seeing these written Bible quotations, was more inclined to a life sentence than to death. 4 Given the authority *788 of the Bible’s “higher law,” and the time White was able to advocate for the death sentence using these quotations, it is not a stretch to say objectively that White’s Bible quotations and passages were a catalyst in convincing the jury to vote for a death sentence.

We have good reason to suspect that here the change in the jury’s views probably were related to the misconduct. Considering that if only one juror had declined to sentence Fields to death the trial court would have been obligated to impose a life sentence, it is more probable than not that White’s introduction of written researched Bible quotations into jury deliberations had a “substantial and injurious” influence on the jury’s verdict. Brecht, 507 U.S. at 623 , 113 S.Ct. 1710 .

One may only hope that the Ninth Circuit will eventually come to recognize that the majority opinion here errs by blinking over the serious jury misconduct that occurred in the penalty phase. The last thing that this country needs, and a thing inconsistent with our constitutional traditions and the paramount role of the jury in our criminal justice system, is to have a theocratic jury room in which a jury foreman can present the jury with notes compiled from the Bible with a selected “pro and con” on the death penalty in light of scripture. The majority fails to realize that a written appeal to “higher law” of the Bible in the jury room by tendering notes to the jurors that were not admitted in evidence or tested by cross-examination is inconsistent with the carefully wrought scheme by which the Supreme Court has held that the ultimate penalty of death can be meted out by a jury when the rules are followed. Fields’s crimes are horrific, and it is not difficult to see that a jury might have decided that death was warranted. But the rules were not followed in the jury room in the penalty phase. .Evidence or extrinsic material that was not admitted was summoned up by the jury foreman. This situation was made worse by the evidence or extrinsic material being of a religious nature that would unduly influence jurors. The majority’s conclusion that any error was harmless is entirely speculative, for it seems probable that an absence of the marshaled biblical lore favoring death might have tilted at least one juror from seeking the retribution of a death penalty to embracing the mercy of life imprisonment. 5 The timing, the source of the external evidence or extrinsic material, the specificity of the notes and the lopsided pro and eon chart persuade me that the notes had a substantial and injurious influence in determining the verdict. I respectfully dissent.

. In 1974, the late Professor Black from Yale University Law School wrote Capital Punishment: The Inevitability of Caprice and Mistake, a piece urging the end of the death *786 penally 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 confronted with an opponent, conquer him with love.”). Could a jury foreperson 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 transform 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 , 96 S.Ct. 2909 , 49 L.Ed.2d 859 (1976).

. 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 bestselling authors.

. The majority opinion correctly points out that under Federal Rule of Evidence 606(b) and our precedent we “may not consider whether an outside influence caused a juror to change his vote; the question of prejudice from extrinsic information is an objective *788 one.” See supra Section IV at 782 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 recognize this fact as a starting point, similar to noting when White introduced 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.

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