Amicus Curiae Brief — Rickey Leon Scott, Petitioner v. Eric Arnold, Warden

No. 20-958

IN THE

Supreme Court of the United States

_________

RICKEY LEON SCOTT,

Petitioner,

v.

ERIC ARNOLD, warden

_________

Respondent.

On Petition for a Writ of Certiorari to the United

States Court of Appeals for the Ninth Circuit

_________

BRIEF OF THE DUE PROCESS INSTITUTE, THE

CATO INSTITUTE, AND THE NATIONAL

ASSOCIATION FOR PUBLIC DEFENSE AS AMICI

CURIAE IN SUPPORT OF PETITIONER

_________

L. BARRETT BOSS

Counsel of Record

KARA L. KAPP

CATHERINE C. YUN

SAMUEL M. DEAU

COZEN O’CONNOR

1200 19th St., NW

Washington, DC 20034

bboss@cozen.com

(202) 912-4818

SHANA TARA O’TOOLE

DUE PROCESS INSTITUTE

700 Pennsylvania Ave., SE

Suite 560

Washington, D.C. 20003

shana@idueprocess.org

(202) 558-6683

Counsel for Amici Curiae Due Process Institute, the

Cato Institute, and the National Association for

Public Defense

1

EMILY A. HUGHES

CLARK M. NEILY III

NATIONAL ASSOCIATION CATO INSTITUTE

1000 Mass. Ave., NW

FOR PUBLIC DEFENSE

Professor of Law

Washington, D.C. 20001

College of Law

cneily@cato.org

University of Iowa

(202) 216-1461

290 Boyd Law Building

Iowa City, IA 52242

Emily-hughes@uiowa.edu

i

QUESTIONS PRESENTED

When a Justice contributes the necessary fifth vote

to a majority opinion but also writes a concurrence

interpreting that opinion, should lower courts

disregard the concurrence and rely exclusively on the

majority opinion to discern the holding in the case?

And should the concurrence be granted precedential

weight only if it is “narrower” than the majority

opinion, per the rule in Marks v. United States, 430

U.S. 188, 193 (1977)?

For purposes of applying the Antiterrorism and

Effective Death Penalty Act of 1996, 28 U.S.C.

§ 2254(d)(1), did this Court’s decision in McDonough

Power Equipment, Inc. v. Greenwood, 464 U.S. 548

(1984)—when read in light of the concurrence by

Justice Blackmun, who also provided the fifth vote for

the majority opinion—“clearly establish” that a

defendant must be granted a new trial when a juror’s

dishonest voir dire responses concealed information

that would have given the defendant a valid basis to

challenge that juror for implied bias?

ii

TABLE OF CONTENTS

QUESTIONS PRESENTED ....................................... i

TABLE OF CONTENTS ............................................ ii

TABLE OF AUTHORITIES ...................................... iii

INTEREST OF AMICI ................................................1

SUMMARY OF ARGUMENT .....................................2

REASONS FOR GRANTING THE WRIT ..................4

I.

The

Ninth

Circuit

unreasonably

misapplied McDonough in reversing the

District Court’s well-reasoned grant of

habeas

relief

under

the

Sixth

Amendment. ...................................................4

A. The Court’s holding in McDonough

was clear and unmistakable. ..................4

B. The California Court of Appeal’s

holding was contrary to the clear

reach of McDonough, and the Ninth

Circuit wrongly disregarded that

unreasonable error. ...............................11

1. The California Court of Appeal

and the Ninth Circuit erred by

not applying McDonough to

implied bias. ....................................11

2. Implied bias is every bit as

pernicious as actual bias. ...............16

II. The Ninth Circuit created a troubling new

rule that threatens to indelibly stain the

right to a jury trial and undermine faith

in this critical institution.............................20

iii

TABLE OF AUTHORITIES

PAGE(S)

CASES

Brown v. Louisiana,

447 U.S. 323 (1980) ........................................... 21

Burton v. Johnson,

948 F.2d 1150 (10th Cir. 1991) ................... 12, 18

Duncan v. Louisiana,

391 U.S. 145 (1968) ........................................... 21

Dyer v. Calderon,

151 F.3d 970 (9th Cir. 1998) ........................... 6, 7

English v. Berghuis, 900 F.3d 804 (6th Cir.

2018) .................................................................. 12

Linkletter v. Walker,

381 U.S. 334 (1980) ........................................... 21

McDonough Power

Greenwood,

Equipment,

Inc.

v.

464 U.S. 548 (1984) ....................................passim

Miller v. Webb,

385 F.3d 666 (6th Cir. 2004) ....................... 14, 15

Mitchell v. Wisconsin,

139 S. Ct. 2525 (2019) ......................................... 1

Pena-Rodriguez v. Colorado,

iv

137 S. Ct. 855 (2017) ............................. 15, 18, 22

People v. Scott,

Pet. App. C .................................................... 9, 12

Scott v. Arnold,

962 F.3d 1128 (9th Cir. 2020) ................. 3, 11, 20

Timbs v. Indiana,

139 S. Ct. 682 (2019) ........................................... 1

United States v. Benally,

546 F.3d 1230 (10th Cir. 2008) ......................... 15

United States v. Burr,

25 F. Cas. 49 (C.C.D. Va. 1807) .................... 9, 21

United States v. Eubanks, 591 F.2d 513 (9th

Cir. 1979) .......................................................... 13

United States v. Haymond,

139 S. Ct. 2369 (2019) ......................................... 1

United States v. Hazelwood,

979 F.3d 398 (6th Cir. 2020) ............................. 17

United States v. Heller,

785 F.2d 1524 (11th Cir. 1986) ................... 15, 23

United States v. Sampson,

820 F. Supp. 2d 151 (D. Mass. 2011) .......... 13, 18

United States v. Scott, 854 F.2d 697 (5th Cir.

1988) .................................................................. 12

v

United States v. Torres,

125 F.3d 38 (2d Cir. 1997) ................................ 14

United States v. Villar,

586 F.3d 76 (1st Cir. 2009) ............................... 14

United States v. Wood,

299 U.S. 123 (1936) ..................................... 6, 7, 8

Warger v. Shauers,

574 U.S. 40 (2014) ........................................... 5, 6

CONSTITUTIONAL PROVISIONS

U.S. CONST. Amendment VI .................................. 5

U.S. CONST. Amendment VII ................................. 5

OTHER AUTHORITIES

Cal. Code Civ. Proc. § 229 .................................. 9, 10

Cal. Code Civ. Proc. § 225 ...................................... 10

Mark W. Bennett, Unraveling the Gordian

Knot of Implicit Bias in Jury Selection: The

Problem of Judge Dominated Voir Dire, the

Failed Promise of Batson, and Proposed

Solutions, 4 Harv. L. & Pol’y Rev. 149 (2010)

........................................................................... 16

vi

Faye Crosby, Stephanie Bromley & Leonard

Saxe, Recent Unobtrusive Studies of Black

and White Discrimination and Prejudice: A

Literature Review, 87 Psychol. Bull 546

(1980) ................................................................. 17

Anthony G. Greenwald & Linda Hamilton

Symposium

on

Behavioral

Krieger,

Realism:

Implicit

Bias:

Scientific

Foundations, 94 Cal. L. Rev. 945 (2006) .......... 14

Valerie P. Hans, The Illusions and Realities of

Jurors’ Treatment of Corporate Defendants,

48 DePaul L. Rev. 327 (1998) ........................... 19

Sheri Lynn Johnson, Unconscious Racism and

the Criminal Law, 73 Cornell L. Rev. 1016

(1988) ................................................................. 17

Jerry Kang, et al., Implicit Bias in the

Courtroom, 59 UCLA L. Rev. 1124 (2012)

..................................................................... 14, 17

Justin D. Levinson et al., Guilty by Implicit

Racial Bias: The Guilty/Not Guilty Implicit

Association Test, 8 Ohio St. J. Crim. Law

187 (2010) .......................................................... 23

Justin D. Levinson & Robert J. Smith, Systemic

Implicit Bias, 126 Yale L.J. F. 406 (2017)........ 16

vii

Justin D. Levinson & Danielle Young, Different

Shades of Bias: Skin Tone, Implicit Racial

Bias, and Judgments of Ambiguous

Evidence, 112 W. Va. L. Rev. 307 (2010)

........................................................................... 23

Tara L. Mitchell, et al., Racial Bias in Mock

Juror Decision-Making: A Meta-Analytic

Review of Defendant Treatment, 29 Law &

Hum. Behav. 621 (2005) ................................... 22

Laurie A. Rudman, et al., Measuring the

Automatic Components of prejudice:

Flexibility and Generality of the Implicit

Association Test, 17 Soc. Cognition 437

(1999) ................................................................. 17

Mark Warr, Public Perceptions and Reactions

to Violent Offending and Victimization, in

UNDERSTANDING AND PREVENTING

VIOLENCE:

CONSEQUENCES

AND

CONTROL (1994).............................................. 18

Jessica L. West, 12 Racist Men: Post-Verdict

Evidence of Juror Bias, 27 Harv. J. Racial &

Ethnic Just. 165 (2011) ............................... 14, 20

1

INTEREST OF AMICI1

Due Process Institute is a non-profit, bipartisan,

public-interest organization that works to honor,

preserve, and restore principles of fairness in the

criminal justice system. Formed in 2018, the Institute

has participated as an amicus curiae before this Court

in cases presenting important criminal justice issues,

including Timbs v. Indiana, 139 S. Ct. 682 (2019);

Mitchell v. Wisconsin, 139 S. Ct. 2525 (2019); and

United States v. Haymond, 139 S. Ct. 2369 (2019).

The Cato Institute is a non-partisan public-policy

research foundation dedicated to advancing the

principles of individual liberty, free markets, and

limited government. The Cato Institute’s Project on

Criminal Justice focuses on, inter alia, the protection

of constitutional safeguards for criminal suspects and

defendants and citizen participation in the criminal

justice system.

The National Association for Public Defense

(NAPD) is an association of more than 14,000

professionals who deliver the right to counsel

throughout the U.S. states. NAPD’s members are

1 Pursuant to Rule 37.3(a), all parties received timely notice of

the intent to file this brief and have consented to the filing of this

brief. Letters showing such consent have been filed with the

Clerk of the Court. In accordance with Rule 37.6, Amici note that

no counsel for any party authored this brief in whole or in part,

and no counsel or party made a monetary contribution intended

to fund the preparation or submission of this brief. No one other

than Amici or their counsel made a monetary contribution to the

preparation and submission of this brief.

2

advocates in jails, in courtrooms, and in communities

and are experts in not only theoretical best practices,

but also in the practical, day-to-day delivery of legal

services.

This case presents an important issue—whether

the California Court of Appeal and the Ninth Circuit

wrongly denied Scott his fundamental right to trial by

an impartial jury. Amici harbor deep concern that the

decisions below—and their indifference to this obvious

Sixth Amendment violation—must be corrected to

guard and preserve the fundamental fairness of the

Sixth Amendment jury trial right.

SUMMARY OF ARGUMENT

The Court should grant the writ of certiorari in

this case for multiple reasons. First, the Ninth Circuit

decided an “important federal question in a way that

conflicts with relevant decisions of this Court.” Sup.

Ct. Rule 10(c). The Ninth Circuit plainly misapplied

the Antiterrorism and Effective Death Penalty Act of

1996 (AEDPA) in denying relief where the Sixth

Amendment clearly required it. The Ninth Circuit’s

ruling was clearly contrary to the constitutional

framework established by this Court in McDonough

Power Equipment, Inc. v. Greenwood, 464 U.S. 548,

556 (1984).

In McDonough, this Court held that a new trial is

required whenever a party “demonstrate[s] that a

juror failed to answer honestly a material question on

voir dire, and then further show[s] that a correct

response would have provided a valid basis for a

3

challenge for cause.” Id. The Court made clear that

this rule was designed to reach dishonesty about

“possible biases, both known and unknown, on the

part of potential jurors.” Id. at 554 (emphasis added).

In reversing the District Court’s meticulously

reasoned grant of habeas relief, the Ninth Circuit

ignored McDonough’s plain text and its unmistakable

reach to both “known” (actual) bias and “unknown”

(implied) bias. It did so by holding that proof of a

dishonest juror’s implied bias does not require a new

trial if the juror denies that bias, thus defeating a

showing of actual bias. Scott v. Arnold, 962 F.3d 1128,

1130-31 (9th Cir. 2020); see also Pet. App. A, at 4-5.

Of course, a dishonest juror’s self-serving denial of

actual bias does not and should not defeat a showing

of implied bias. In endorsing this new standard, the

Ninth Circuit contorted this Court’s holding and

violated its plain terms.

Second, the Ninth Circuit created a troubling new

rule that threatens to indelibly stain the right to an

impartial jury trial and undermine faith in this

foundational institution. The Ninth Circuit wrongly

held that McDonough does not require a new trial

upon proof of juror dishonesty about a question giving

rise to a for-cause challenge if that juror denies

harboring a bias. In so ruling, the Ninth Circuit all

but eviscerated McDonough and created a dangerous

new precedent that must not be allowed to stand.

Protecting the sanctity of impartial juries enshrined

in the Sixth Amendment is of paramount importance.

Accordingly, the grant of certiorari is manifestly

warranted.

4

REASONS FOR GRANTING THE WRIT

I. The

Ninth

Circuit unreasonably misapplied

McDonough in reversing the District Court’s wellreasoned grant of habeas relief under the Sixth

Amendment.

The writ should be granted because the Ninth

Circuit’s Sixth Amendment determination was

contrary to the clear and unmistakable holding of

McDonough, 464 U.S. 548.

A. The Court’s holding in McDonough was clear

and unmistakable.

Under AEDPA, habeas relief is authorized where

the state court’s ruling upholding a conviction was

“contrary to, or involved an unreasonable application

of, clearly established Federal law, as determined by

the Supreme Court of the United States[.]” 28 U.S.C.

§ 2254(d)(1). In this case, there is no dispute that this

Court’s holding in McDonough sets forth the relevant

rule. The only question is whether the relevant

holding of McDonough is clearly established. There

can be no doubt that in authoring the majority

opinion, then-Justice Rehnquist laid out as clear a

two-part test as this Court has ever issued.

In then-Justice Rehnquist’s majority opinion in

McDonough, the Court drew an unequivocal line

reflecting what the constitutional right to an

impartial jury requires. The Sixth Amendment

expressly requires that “[i]n all criminal prosecutions,

the accused shall enjoy the right to a speedy and

5

public trial, by an impartial jury[.]” U.S. Const.,

Amend. VI. The Seventh Amendment likewise

enshrines “the right of trial by jury” in civil cases. U.S.

Const., Amend. VII. This Court has recognized that

under both amendments, “[o]ne touchstone of a fair

trial” in a jury system is the impaneling of “an

impartial trier of fact[.]” McDonough, 464 U.S. at 554.

To

ensure

these

fundamental

rights,

the

McDonough Court established a clear and sensible

test—that a new trial is required whenever a party

“[1] demonstrate[s] that a juror failed to answer

honestly a material question on voir dire, and then [2]

further show[s] that a correct response would have

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

556. By distinguishing the facts before it, which

involved a challenge only to “a juror’s mistaken,

though honest, response to a question[,]” the Court

clarified that the required “fail[ure] to answer

honestly” a material question must involve a lie,

rather than a mere misstatement. Id. It thus made

plain that a new trial would be manifestly warranted

where a juror gave an intentionally false response by

“concealing information” requested by counsel, and

that lie provided a valid basis for a for-cause

challenge. Id.

The Court reaffirmed this clear and unmistakable

reading in Warger v. Shauers, where it summarized

McDonough’s two-part holding as this: “a party may

‘obtain a new trial’ if he ‘demonstrate[s] that a juror

failed to answer honestly a material question on voir

dire, and . . . that a correct response would have

provided a valid basis for a challenge for cause.’” 574

6

U.S. 40, 43 (2014) (quoting McDonough, 464 U.S. at

556). This Court then reiterated McDonough’s plain

two-part holding and mandate: “If a juror was

dishonest during voir dire and an honest response

would have provided a valid basis to challenge that

juror for cause, the verdict must be invalidated[.]” Id.

at 45.

Moreover, the McDonough Court plainly

encompassed both actual and implied biases within

the scope of this two-part test by expressing concern

for eliminating biases both “known and unknown”.

Specifically, the Court wrote that “[v]oir dire

examination serves to protect th[e] right [to a fair

trial] by exposing possible biases, both known and

unknown, on the part of potential jurors.”

McDonough, 464 U.S. at 554 (emphasis added). If

these words—“both known and unknown”—are to

have any meaning at all, they naturally and

necessarily must include both biases that are

explicitly “known” and those that remain “unknown”

but are established as implied. As Petitioner explains,

actual bias turns on proof that makes “known” that a

juror was subjectively biased, or “disposed to cast a

vote against” the defendant. Dyer v. Calderon, 151

F.3d 970, 981 (9th Cir. 1998) (en banc). As this Court

has stated, simply put, “actual” bias is “bias in fact[.]”

United States v. Wood, 299 U.S. 123, 133 (1936). This

is just one of the biases the McDonough Court

identified within its panorama of concerns.

In addition, the Court identified “unknown” biases

as a second pernicious concern. That concern is

captured through implied bias for-cause challenges.

7

Indeed, implied bias encompasses precisely those

situations where it remains “unknown” whether the

juror harbors a concrete subjective bias, but where

objective circumstances create an unacceptable risk

that the juror may be infected with such bias, thus

giving rise to a for-cause challenge. Dyer, 151 F.3d at

981. As this Court explained in Wood, “implied” bias

encompasses those “bias[es] conclusively presumed as

matter of law” even though not established in fact.

Wood, 299 U.S. at 133. This Court further made clear

that implied bias is distinct from actual bias, writing

that implied bias is “a bias attributable in law to the

prospective juror regardless of actual partiality.” Id.

at 134 (emphasis added). It thus follows rationally

and ineluctably from the Court’s express inclusion of

both “known” and “unknown” biases within the scope

of targeted ills that its holding reaches both actual

and implied bias.

Justice Blackmun’s concurrence adds additional

context that crystallizes the correctness of this

reading. As he wrote: “I agree 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 therefore

join the Court’s opinion[.]” McDonough, 464 U.S. at

556. Justice Blackmun’s revealing concurrence

captures the very essence of why proof of the juror’s

honesty or dishonesty in making the inaccurate

statement is the critical test. As he wrote, and as the

Court expressly recognized, a juror’s act of

8

concealment provides a telling indicator that the juror

suffers from pernicious bias.

In crafting a test that would serve as a reliable

bulwark against the perils of jury bias, it is no

surprise that the McDonough Court included both

actual and implied biases within the scope of biases

that would give rise to a new trial. Indeed, this Court

had already recognized implied bias as a basis for a

new trial in Wood, 299 U.S. at 133. In Wood, in

interpreting the Sixth Amendment right to a trial “by

an impartial jury,” the Court specifically recognized

that “[t]he bias of a prospective juror may be actual or

implied; that is, it may be bias in fact or bias

conclusively presumed as a matter of law.” Id.; see

also id. at 136 (holding that the proposed form of

presumed bias—a juror’s government service—was

not of the type giving rise to a for-cause challenge).

The Court in Wood further recognized that state

“legislatures enjoy a reasonable freedom” in

safeguarding this right by defining what type of

implied biases should categorically give rise to a forcause challenge. Id. at 145-46. The California

legislature exercised precisely that discretion here, as

it is undisputed that the state legislature has

expressly provided that “[a] challenge for implied bias

may be taken for one or more of the following causes .

. . [including] having stood within one year previous

to the filing of the complaint in the action in the

relation of attorney and client with . . . the attorney

for either party.” Cal. Code Civ. Proc. § 229(b). Nor is

there any question that the California Court of Appeal

9

found this circumstance satisfied here. People v. Scott,

Pet. App. C, at 15-16.

Indeed, even as far back as in the Founding era,

Chief Justice Marshall recognized the deleterious

effects of certain implied bias, and that our

Constitution, by design, prohibits jurors exhibiting

such implied biases from serving on juries. United

States v. Burr, 25 F. Cas. 49, 51 (C.C.D. Va. 1807). In

Burr, Chief Justice Marshall was guided by a single

polestar—“[t]he great value of the trial by jury

certainly consists in its fairness and impartiality.” Id.

at 50. In applying this foundational principle, he

recognized that a situation may arise where a juror

“may declare that he feels no prejudice in the case[.]”

Id. at 51. In addressing this scenario, Chief Justice

Marshall wrote that despite the absence of proof of

actual bias, “the law cautiously incapacitates him

from serving on the jury because it suspects prejudice,

[where] in general persons in a similar situation

would feel prejudice.” Id.

There is no dispute that the challenged juror here

acted to conceal critical information from the defense

and gave a blatantly dishonest answer during voir

dire. This is precisely the pernicious conduct that the

McDonough test expressly aims to prevent, as

reflected both in the majority opinion and Justice

Blackmun’s concurrence. Moreover, the juror’s

conduct here qualified as statutorily recognized

implied bias, which constitutes a “valid basis for a

challenge for cause” under McDonough. Indeed, the

California implied-bias statute explicitly provides

that the juror’s conduct in just this scenario qualifies

10

as the type of implied bias that gives rise to a for-cause

challenge to disqualify a juror—without requiring any

evidence that the juror harbors a “known” actual bias.

Cal. Code Civ. Proc. § 229(b).2

Thus, the only question to be answered is whether

McDonough’s clear directive means what it says in

holding that our Constitution will not turn a blind eye

to the seating of jurors who have lied about matters

that speak to relevant biases. This case provides the

Court with a clean vehicle to address this singular

question—whether the clear holding of McDonough

encompasses all dishonest answers to material

questions that give rise to a for-cause challenge, or

only captures a narrow subset of such dishonest

answers—where there is also proof of the juror’s

“known” (i.e. actual) bias.

ee also Cal. Code Civ. Proc. § 225 (providing that a juror may

be challenged for cause based on either “[i]mplied bias—as, when

the existence of the facts as ascertained, in judgment of law

disqualifies the juror” (as enumerated in Section 229) or “[a]ctual

bias”, shown by proof of the juror’s “state of mind”).

2 S

11

B. The California Court of Appeal’s holding was

contrary to the clear reach of McDonough, and

the Ninth Circuit wrongly disregarded that

unreasonable error.

1.

The California Court of Appeal

and the Ninth Circuit erred by not

applying McDonough to implied

bias.

In affirming the conviction in this case, the

California Court of Appeal wrongly held that

McDonough does not require a new trial “whenever a

juror has concealed a material fact during voir dire

and a correct response would have provided grounds

for a challenge for cause under state law.” Pet. App.

C, at 17. That holding is clearly wrong. See Part I.A,

above. It erroneously held that even where a juror’s

implied bias under state law is unequivocally

established, if the court accepts the dishonest juror’s

denial of actual bias, no new trial is warranted. Pet.

App. C, at 12-13, 15, 20. The court’s announced rule

both makes no sense and is clearly contrary to the

dictates of McDonough.

The Ninth Circuit further compounded this error

by concluding that the state court could reasonably

have read McDonough as not requiring a new trial

upon proof of (1) juror dishonesty (2) as to a matter

that provided grounds for a for-cause challenge, as

long as the juror caught in a lie subsequently denies

actual prejudice. Scott, 962 F.3d at 1131. This

erroneous and constitutionally harmful holding

ignores the unambiguous dictates of McDonough.

12

Justice Rehnquist announced a clear standard in

McDonough—that a new trial is required whenever a

party “demonstrate[s] that a juror failed to answer

honestly a material question on voir dire, and then

further show[s] that a correct response would have

provided a valid basis for a challenge for cause.” 464

U.S. at 556; see also Part I.A. There are thus two

critical elements giving rise to this constitutional

relief—(1) a juror’s dishonesty in voir dire (2) as to a

matter that would have provided a valid basis for a

for-cause challenge.

Reading McDonough as only addressing actual

bias—as the California Court of Appeal and Ninth

Circuit did—is manifestly unreasonable and contrary

to the clear reach of McDonough. Indeed, in limiting

the reach of McDonough to only proof of actual bias,

these courts’ reading would render largely

meaningless this Court’s inclusion of biases “both

known and unknown” within the scope of its holding.

Such a reading cannot be permitted to stand.

This Court crafted its test around proof of

deception as a fair proxy for both “known and

unknown” biases. Implied bias may manifest through

a juror’s intentional “conceal[ment] [of] information”

just as readily as actual bias.3 Thus, the lower courts’

See, e.g., English v. Berghuis, 900 F.3d 804, 817-18 (6th Cir.

2018) (juror’s concealment of history of sexual abuse in a sexual

assault case gave rise to “inference of bias” though proof of actual

bias was absent); Burton v. Johnson, 948 F.2d 1150, 1159 (10th

Cir. 1991) (juror who lied in voir dire about matter giving rise to

for-cause challenge was impliedly biased); United States v. Scott,

854 F.2d 697, 698-700 (5th Cir. 1988) (in marijuana importation

3

13

exclusion of an entire category of biases that fall

within the clear scope of McDonough is unreasonable.

In this case, the defense indisputably established

that a juror gave a dishonest answer about a material

question that would have given rise to a for-cause

challenge under state law based on implied bias. That

should end the matter.

It is plainly unreasonable for a court applying

McDonough, as here, to limit the Court’s test and

retrial mandate to some but not all lies in voir dire

that would give rise to a for-cause challenge under

state law. Nothing in the Court’s opinion invites such

an arbitrary limitation. And it is particularly

unreasonable to have selected a subset that captures

only the most egregious manifestations of forbidden

biases. The lower courts wrongly concluded that

McDonough’s terms only apply to actual bias. But

proof that a juror manifested actual bias is in no sense

a close or meaningful proxy for whether a juror’s

misstatement in voir dire was dishonest, rather than

the result of an honest mistake. Indeed, proof of actual

conspiracy, juror found impliedly biased who was the brother of

deputy sheriff in the case, even though juror denied actual bias);

United States v. Eubanks, 591 F.2d 513, 516, 517 (9th Cir. 1979)

(in heroin distribution conspiracy case, juror who lied about

having family members incarcerated for heroin-related crimes

was found impliedly biased); United States v. Sampson, 820 F.

Supp. 2d 151, 197 (D. Mass. 2011) (applying McDonough to juror

dishonesty where no actual bias shown, but bias could be

inferred).

14

bias only covers a much smaller subset of conduct4—

where the taint of a juror’s bias is so encompassing

that the juror simply cannot, or cannot be bothered to,

conceal it from the court. A bias can only be “known”

or proven as actual where the juror has made it

explicit by expressly endorsing or admitting to that

bias. See Anthony G. Greenwald & Linda Hamilton

Krieger,

SYMPOSIUM

ON

BEHAVIORAL

REALISM: Implicit Bias: Scientific Foundations, 94

Cal. L. Rev. 945, 946 (2006).

Examples of jurors expressing explicit (actual) bias

during voir dire are therefore exceptional

occurrences.5 Actual bias is often suppressed during

voir dire and an expression of actual bias manifests

only later, when jurors are in more private settings.6

For example, in United States v. Villar, 586 F.3d 76,

82 (1st Cir. 2009), shortly after a defendant’s verdict

was announced, one impaneled juror sent an email to

defense counsel reporting that another juror had

stated, during deliberations, with reference to the

Latino defendant, “I guess we’re profiling but they

cause all the trouble.”

Implicit Bias in the Courtroom, 59 UCLA L.

Rev. 1124, 1126 (2012).

5 See, e.g., Miller v. Webb, 385 F.3d 666, 674, 675 (6th Cir. 2004)

(finding actual bias where juror unequivocally stated she would

be partial to key government witness, who was the victim in the

case); United States v. Torres, 128 F.3d 38, 43-44 (2d Cir. 1997)

(finding actually biased juror who stated he could never believe

the testimony of a drug dealer).

6 See Jessica L. West, 12 Racist Men: Post-Verdict Evidence of

Juror Bias, 27 Harv. J. Racial & Ethnic Just. 165, 170 (2011).

4 Jerry Kang et al,

15

Likewise, in United States v. Benally, jurors’ lies

in voir dire about their experiences with Native

Americans in a case involving a Native American

defendant were only discovered after the verdict was

announced. 546 F.3d 1230, 1232 (10th Cir. 2008)

(denying hearing under Rule 606(b)), overruled by

Pena-Rodriguez v. Colorado, 137 S. Ct. 855, 865, 869

(2017). The disclosing juror revealed that during

deliberations, the foreman had insisted that “‘[w]hen

Indians get alcohol, they all get drunk’ and that when

they get drunk, they get violent.” Id. at 1321. Other

jurors apparently likewise, in private only, discussed

the need to “send a message back to the reservation.”

Id. at 1232. The district court found that two jurors

had lied about their experiences with Native

Americans, based on these unfiltered comments only

made in a private setting. Id.7

These instances, of course, cover only the most

extreme examples of juror dishonesty, and thus

cannot be understood to fairly capture the problem the

Court quite pointedly aimed to address. As the Sixth

Circuit explains, “[a]lthough bias can be revealed

through a prospective juror’s express admission, more

frequently, jurors are reluctant to admit actual bias

and the trial court must discover their biased

attitudes through circumstantial evidence.” Miller v.

Webb, 385 F.3d 666, 673-74 (6th Cir. 2004).

See also United States v. Heller, 785 F.2d 1524, 1526 (11th Cir.

1986) (reversing jury verdict based on false voir dire statements

of jurors discovered after jury deliberations, during which the

jurors made anti-Semitic comments).

7

16

2.

Implied bias is every bit as

pernicious as actual bias.

Implied bias is much more pervasive, but just as

insidious, as actual bias. One form of implied bias is

implicit bias, which is “the plethora of fears, feelings,

perceptions, and stereotypes that lie deep within our

subconscious, without our conscious permission or

acknowledgement. Mark W. Bennett, Unraveling the

Gordian Knot of Implicit Bias in Jury Selection: The

Problems of Judge-Dominated Voir Dire, the Failed

Promise of Batson, and Proposed Solutions, 4 Harv. L.

& Pol’y Rev. 149, 149 (2010). Both case law and

scholarship reflect the pervasiveness of implicit bias.

As Judge Bennett explains, after seven years of

testing, a study of implicit bias run by several

universities concluded that “[i]mplicit biases are

pervasive [and] appear as statistically ‘large’ effects

that are often shown by majorities of samples of

Americans[.]” Id. at 153. Judge Bennett adds that

these “[i]mplicit biases predict behavior . . . . [T]hose

who are higher in implicit bias have been shown to

display greater discrimination[.]” Id. Judge Bennett

further notes that “empirical evidence from other

social science studies [likewise] show that implicit

bias is pervasive in our society.” Id. at 154; see also

Justin D. Levinson & Robert J. Smith, Systemic

Implicit Bias, 126 Yale L.J. F. 406, 408-10 (2017).

Actual biases manifest overtly less frequently than

implied bias because people harboring the most

pernicious biases—including religious and racial

17

biases—do not typically announce their biases loudly.8

This behavior is entirely predictable, as members of

society are acutely aware of the moral opprobrium

that awaits should they explicitly endorse or admit to

harboring a bias that is condemned by society.9

See, e.g., Laurie A. Rudman et al., Measuring the Automatic

Components of Prejudice: Flexibility and Generality of the

Implicit Association Test, 17 Soc. Cognition 437, 460 (1999)

8

(finding “strong evidence for implicit prejudice” based on religion

(Jewish vs. Christian), age (young vs. old), and nationality

(American vs. Soviet), and the effect size of implicit prejudice was

larger than for self-reported measures of prejudice). Biases are

still held, but “[people] inhibit expression of this prejudice when

the possibility of negative consequences is great.” Crosby,

Bromley & Saxe, Recent Unobtrusive Studies of Black and White

Discrimination and Prejudice: A Literature Review, 87

Psychological Bull. 546, 549 (1980) (positing that prejudicial

beliefs remain prominent, but are less likely to be outwardly

expressed); see also Sheri Lynn Johnson, Unconscious Racism

and the Criminal Law, 73 Cornell L. Rev. 1016, 1027-28 (1988)

(observing that racial biases have not disappeared even though

they have largely been condemned in modern society. Instead,

individuals now are more likely to express their prejudice

“indirectly, covertly, and often unconsciously”). Cf. United States

v. Hazelwood, 979 F.3d 398, 411 (6th Cir. 2020) (finding that

indisputably racist remarks made by CEO at a private company

retreat were never expected to become public and were not

anticipated by CEO to put the company’s reputation at risk).

9 See Jerry Kang et al, Implicit Bias in the Courtroom, 59 UCLA

L. Rev. 1124, 1132 (2012) (“If no social norm against [a] bias[]

exists within a given context, a person will freely broadcast them

to others. But if such a norm exists, then explicit biases can be

concealed to manage the impressions that others have of us. . . .

An explicit instrument asks the respondent for a direct selfreport with no attempt by researchers to disguise the mental

construct that they are measuring. An example is a

straightforward survey question. . . . [O]ne can often easily

conceal one’s explicit bias as measured through an explicit

18

Indeed, as to one such morally condemned bias, racial

bias, this Court has recognized that “[t]he stigma that

attends racial bias may make it difficult for a juror to

report inappropriate statements during the course of

juror deliberations.” Pena-Rodriguez, 137 S. Ct. at

869.

For these reasons, implied bias is as likely as

actual bias, if not more likely, to manifest through

dishonesty. See, e.g., cases cited in note 3, supra; see

also Burton, 948 F.2d at 1158 (holding that a juror’s

“dishonesty, itself” was evidence of implied bias);

Sampson, 820 F. Supp. 2d at 165 (“[D]ishonest

answers are a factor that can contribute to a finding

of implied bias.”).

One example of the perniciousness of implied

biases is evident in gender bias by some jurors against

male defendants in criminal prosecutions. For

example, in his book, Professor of Sociology Mark

Warr documented the bias held by some individuals

surveyed at the time of publication that males are

more dangerous than females. Mark Warr, Public

Perceptions and Reactions to Violent Offending and

Victimization, in 4 Understanding and Preventing

Violence: Consequences and Control 13, 20-21 (1994).

For example, Professor Warr documents how among

instrument. In this way, an explicit instrument can poorly

measure an explicit bias, as the test subject may choose not to be

candid about the beliefs or attitudes at issue.”); see also, e.g.,

Pena-Rodriguez, 137 S. Ct. at 869 (“The stigma that attends

racial bias may make it difficult for a juror to report

inappropriate statements during the course of juror

deliberations.”).

19

those surveyed, a predominant personal attribute

identified by those surveyed as corresponding to the

image of a dangerous person was being male. Id. at 18.

Professor Warr further reports findings that among

the subjects surveyed, females tended to fear criminal

victimization more than men, despite the fact that

men were at higher risk of victimization than females.

Id. at 11-12. Likewise, Warr reports that a study of

60,000 individuals showed that certain violent crimes

committed by men were perceived to be more

dangerous than the same crimes committed by

women. Id. at 47.

Likewise by way of example, jurors in civil trials

may harbor anti-corporate sentiments, which they

may be reluctant to admit during voir dire. For

example, in a mock jury verdict analysis, jurors

tended to treat corporate defendants worse than

individual defendants. Valerie P. Hans, The Illusions

and Realities of Jurors’ Treatment of Corporate

Defendants, 48 DePaul L. Rev. 327, 343-44 (1998). In

one mock jury experiment, participants “were

significantly more likely to hold the [corporate]

defendant morally and legally responsible” for the

injuries alleged than the individual defendant. Id. at

344. In a second experiment, mock jurors were more

likely to attribute more fault to the corporate

defendant than to the individual defendant. Id. at 345.

Further, the studies found “a statistically significant

relationship between attitudes toward business and

judgments of negligence and awards[.]” Id. at 346. Of

course, “virtually no jurors [interviewed] stated that

20

their own biases against business led them to treat a

business corporation differently.” Id. at 351.

Thus, the inclusion of implied bias must be

understood as an indispensable pillar to the Court’s

opinion in McDonough. Indeed, any other reading of

McDonough would leave courts powerless to uncover

these and other pernicious biases overtly denied by

jurors, which can indelibly taint criminal trials and

undermine their integrity. See Jessica L. West, 12

Racist Men: Post-Verdict Evidence of Juror Bias, 27

Harv. J. Racial & Ethnic Just. 165, 166 (2011)

(observing that “[w]hen information comes to light

that a juror has expressed racial, ethnic, religious, or

gender bias during deliberations, a pall is cast not

only on the verdict, but on these underlying precepts”

of a fair trial by an impartial jury).

II. The Ninth Circuit created a troubling new rule

that threatens to indelibly stain the right to a jury

trial and undermine faith in this critical

institution.

The Ninth Circuit held that proof of a juror’s

implied bias does not require a new trial if the juror

denies that bias, thus defeating proof of actual bias.

Scott v. Arnold, 962 F.3d 1128, 1130-31 (9th Cir.

2020). Of course, a juror’s denial of bias does not and

cannot defeat evidence of implied bias, as discussed

above. See Part I.B. In unreasonably cabining

McDonough to only requiring retrial upon proof of

actual bias, the Ninth Circuit announced a dangerous

new rule that puts in peril the integrity of the right to

trial by an impartial jury.

21

This rule would allow lower courts to freely ignore

implied biases and uphold jury verdicts despite proof

that a juror harbored even a morally reprehensible

bias, as long as the juror denied being biased. Such a

rule threatens to indelibly stain the hallowed Sixth

Amendment right to a jury trial and thus cannot be

permitted to stand.

The “fairness of the trial—the very integrity of the

fact-finding process”—is foundational to the scheme of

American justice. Brown v. Louisiana, 447 U.S. 323,

334 (1980) (quoting Linkletter v. Walker, 381 U.S.

618, 639 (1965)); Duncan v. Louisiana, 391 U.S. 145,

149 (1968). Indeed, the Court in McDonough observed

that a core “touchstone of a fair trial is an impartial

trier of fact[.]” 464 U.S. at 554. Chief Justice

Marshall’s words at the time of the Founding mark

the importance of jealously safeguarding this right,

and they bear repeating: “Those who most prize the

institution [of trial by jury], prize it because it

furnishes a tribunal which may be expected to be

uninfluenced by an undue bias of the mind.” Burr, 25

F. Cas. at 50.

Protecting the integrity of the right to an

impartial jury is thus paramount to protecting our

system of justice. As this Court has recently

recognized:

[t]he jury is a central foundation of our justice

system and our democracy. Whatever its

imperfections in a particular case, the jury is a

necessary check on governmental power. The

jury, over the centuries, has been an inspired,

22

trusted, and effective instrument for resolving

factual disputes and determining ultimate

questions of guilt or innocence in criminal

cases. Over the long course its judgments find

acceptance in the community, an acceptance

essential to respect for the rule of law. The jury

is a tangible implementation of the principle

that the law comes from the people.

Pena-Rodriguez, 137 S. Ct. at 860.

Importantly, voir dire is critical to protecting this

foundational institution’s integrity—it is the very

mechanism by which we weed out bias from juries. As

the McDonough court wrote, “Voir dire examination

serves to protect th[e] right [to a fair trial] by exposing

possible biases, both known and unknown, on the part

of potential jurors.” McDonough, 464 U.S. at 554. The

Court thus identified voir dire as a core pillar erected

to weed out “biases, both known and unknown” and

expel jurors tainted by bias. Id. The Court went on to

stress that “[t]he necessity of truthful answers by

prospective jurors if this [voir dire] process is to serve

its purpose is obvious.” Id.

Pernicious implied biases, such as racial or

religious bias, can have devastating impacts on

outcomes in criminal cases, if they are not properly

filtered out in voir dire.10 Verdicts marred by such

See Tara L. Mitchell et al., Racial Bias in Mock Juror DecisionMaking: A Meta-Analytic Review of Defendant Treatment, 29

10

Law & Hum. Behav. 621, 627 (2005) (finding that “participants

were more likely to render guilt judgments for other-race

defendants than for defendants of their own race”); see also Kang

23

biases can cause ordinary citizens to question the

integrity of the jury system as a whole. The strength

and resilience of the core institutions erected by our

Constitution, including the jury trial, are fed and

fortified by the strength of faith that our fellow

citizens retain in the fairness and reliability of these

institutions. When courts are allowed to neglect their

critical role as vigilant gatekeepers guarding the

impartiality of our juries, the integrity of our jury

verdicts are marred, and the people’s faith in this

institution begins to slowly crumble. Cf. Heller, 785

F.2d at 1527 (holding that because the “religious

prejudice displayed by the jurors . . . [was] so shocking

to the conscience and potentially so damaging to

public confidence in the equity of our system of justice,

that we must act decisively to correct any possible

harmful effects”).

Were this Court to deny certiorari, and thus allow

the lower courts here to ignore the plain dictates of

McDonough, it risks signaling to other courts that

they are welcome to do the same. Such a result would

et al, supra n.9, at 1143-44 (concluding that Mitchell study’s

“findings are more consistent with an implicit bias than a

concealed explicit bias explanation”); Justin D. Levinson &

Danielle Young, Different Shades of Bias: Skin Tone, Implicit

Racial Bias, and Judgments of Ambiguous Evidence, 112 W. Va.

L. Rev. 307, 309 (2010) (finding that “jurors automatically and

unintentionally evaluate[d] ambiguous trial evidence in racially

biased ways”); Justin D. Levinson et al, Guilty by Implicit Racial

Bias: The Guilty/Not Guilty Implicit Association Test, 8 Ohio St.

J. Crim. Law 187, 190, 204, 206 (2010) (finding that people

implicitly associate Black and Guilty compared to White and

Guilty, and these associations predicted how mock jurors

evaluated ambiguous trial evidence).

24

leave lower courts free to blatantly and dangerously

ignore implied bias, which, if left unchecked, would

insidiously weaken the institution of impartial jury

trials from the inside out.

This Court plays a pivotal role in protecting the

integrity of the jury trial right, and with it, the

strength of this critical institution in our criminal

justice system. This case presents the Court with a

clean and important opportunity to reinforce the clear

holding of McDonough, and in so doing, strengthen

the integrity of this fundamental right at a time when

renewed faith in our institutions is needed more than

ever.

CONCLUSION

For the foregoing reasons this Court should grant

the petition for a writ of certiorari.

L. BARRETT BOSS

Counsel of Record

KARA L. KAPP

CATHERINE C. YUN

SAMUEL M. DEAU

COZEN O’CONNOR

1200 19th St., NW

Washington, DC 20034

bboss@cozen.com

(202) 912-4818

CLARK M. NEILY III

CATO INSTITUTE

1000 Mass. Ave., NW

SHANA TARA O’TOOLE

DUE PROCESS INSTITUTE

700 Pennsylvania Ave., SE

Suite 560

Washington, D.C. 20003

shana@idueprocess.org

(202) 558-6683

EMILY A. HUGHES

NATIONAL ASSOCIATION

FOR PUBLIC DEFENSE

Professor of Law

College of Law

University of Iowa

25

Washington, D.C. 20001 290 Boyd Law Building

cneily@cato.org

Iowa City, IA 52242

(202) 216-1461

Emily-hughes@uiowa.edu

Counsel for Amici Curiae Due Process Institute, the

Cato Institute, and the National Association for

Public Defense