Petition for Writ of Certiorari — Mark Anthony Gonzalez, Petitioner v. Texas

No. _________

IN THE

Supreme Court of the United States

________________________________

MARK ANTHONY GONZALEZ,

Petitioner,

v.

STATE OF TEXAS,

Respondent.

________________________________

On Petition for a Writ of Certiorari to the

Court of Criminal Appeals of Texas

________________________________

PETITION FOR A WRIT OF CERTIORARI

________________________________

Mridula S. Raman

Counsel of Record

Ty Alper

Elisabeth A. Semel

DEATH PENALTY CLINIC

UNIVERSITY OF CALIFORNIA, BERKELEY

SCHOOL OF LAW

Berkeley, CA 94720

(510) 642-5748

mraman@berkeley.edu

Counsel for Petitioner

CAPITAL CASE

QUESTIONS PRESENTED

Petitioner Mark Gonzalez’s penalty-phase jury was charged with deciding two issues

that together would dictate his sentence. The jury had reached a verdict on the first

of the two issues and was arguing over the second when one juror became so

distressed by the discord and hostility pervading the jury room that he suffered a

debilitating anxiety attack. The trial court then replaced the impaired juror with an

alternate but refused defense counsel’s request that the newly constituted jury be

instructed to begin its penalty-phase deliberations anew.

The following questions are presented:

(1) Whether, after the substitution of a juror midway

through deliberations, a trial court’s failure to instruct the

reconstituted jury to deliberate anew violates the

defendant’s Sixth Amendment jury-trial right to a

unanimous verdict after collective deliberations; and

(2) Whether such a profound Sixth Amendment violation

constitutes structural error.

i

LIST OF RELATED PROCEEDINGS

Gonzalez v. State, 616 S.W.3d 585 (Tex. Crim. App. 2020) (published part of opinion)

Gonzalez v. State, No. AP-77,066 (Tex. Crim. App. Nov. 4, 2020) (full opinion)

Ex parte Gonzalez, No. WR-86,567-01 (Bexar Cnty. Dist. Ct.) (ongoing statecollateral proceedings)

ii

TABLE OF CONTENTS

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

LIST OF RELATED PROCEEDINGS ........................................................................... ii

TABLE OF AUTHORITIES ........................................................................................... v

PETITION FOR A WRIT OF CERTIORARI ................................................................ 1

OPINIONS AND ORDERS BELOW ............................................................................. 1

JURISDICTION.............................................................................................................. 1

CONSTITUTIONAL PROVISIONS INVOLVED ......................................................... 1

INTRODUCTION ........................................................................................................... 2

STATEMENT OF THE CASE ....................................................................................... 4

I.

Proceedings in the Trial Court ............................................................................ 4

II.

The CCA’s Decision .............................................................................................. 7

REASONS FOR GRANTING THE PETITION ............................................................ 8

I.

Failing to Instruct a Reconstituted Jury to Deliberate Anew Strikes at the

Core of the Sixth Amendment Jury-Trial Guarantee. ....................................... 8

II.

This Court Should Resolve the Widespread Uncertainty About When the

Failure to Instruct a Reconstituted Jury to Deliberate Anew Requires

Appellate Relief. ................................................................................................. 14

III. A Trial Court’s Failure to Direct a Newly Constituted Jury to Restart

Deliberations Is Structural Error. .................................................................... 16

A.

This Court Has Identified a Class of Errors in Criminal Proceedings

That Demand Automatic Reversal. .......................................................... 16

B.

The Omission Challenged Here Fits Comfortably Within the Category

of Structural Error. .................................................................................... 18

IV. This Case Is a Strong Vehicle for This Court to Address the Questions

Presented. ........................................................................................................... 22

iii

CONCLUSION.............................................................................................................. 23

PETITION APPENDIX

Gonzalez v. State, No. AP-77,066 (Tex. Crim. App. Nov. 4, 2020) ........................... 1a

Order Denying Motion for Rehearing, Gonzalez v. State, No. AP-77,066

(Tex. Crim. App. Mar. 3, 2021) ....................................................................... 130a

iv

TABLE OF AUTHORITIES

Cases

Allen v. United States, 164 U.S. 492 (1896) ................................................................ 10

Arizona v. Fulminante, 499 U.S. 279 (1991) ......................................................... 16, 17

Blakely v. Washington, 542 U.S. 296 (2004)............................................................ 9, 21

Burch v. Louisiana, 441 U.S. 130 (1979) ..................................................................... 18

Claudio v. Snyder, 68 F.3d 1573 (3d Cir. 1995) .................................................... 15, 16

Delaware v. Van Arsdall, 475 U.S. 673 (1986) ............................................................ 16

Draughon v. State, 831 S.W.2d 331 (Tex. Crim. App. 1992) ........................................ 4

Duncan v. Louisiana, 391 U.S. 145 (1968) .............................................................. 9, 20

Henderson v. Lane, 613 F.2d 175 (7th Cir. 1980)........................................................ 15

Jenkins v. United States, 380 U.S. 445 (1965) ...................................................... 10, 21

Johnson v. State, 53 So. 3d 1003 (Fla. 2010) ............................................................... 20

Jones v. United States, 527 U.S. 373 (1999) ................................................................ 10

Martinorellan v. State, 343 P.3d 590 (Nev. 2015) ....................................................... 14

Neder v. United States, 527 U.S. 1 (1999) ............................................................... 9, 19

Osborne v. Ohio, 495 U.S. 103 (1990) .......................................................................... 23

Peek v. Kemp, 784 F.2d 1479 (11th Cir. 1986) ............................................................ 15

People v. Burnette, 775 P.2d 583 (Colo. 1989) ................................................. 11–12, 15

People v. Collins, 552 P.2d 742 (Cal. 1976) ................................................................. 11

People v. Roberts, 824 N.E.2d 250 (Ill. 2005) .............................................................. 12

People v. Ryan, 224 N.E.2d 710 (N.Y. 1966)................................................................ 12

v

Proenza v. State, 541 S.W.3d 786 (Tex. Crim. App. 2017) .................................... 22–23

Ramos v. Louisiana, 140 S. Ct. 1390 (2020) ........................................................ passim

Rose v. Clark, 478 U.S. 570 (1986) ......................................................................... 17, 21

Sanchez v. State, 182 S.W.3d 34 (Tex. App. 2005) ...................................................... 23

State v. Corsaro, 526 A.2d 1046 (N.J. 1987) .......................................................... 10, 12

State v. Guytan, 968 P.2d 587 (Ariz. Ct. App. 1998) ................................................... 11

State v. Lamar, 327 P.3d 46 (Wash. 2014) ............................................................ 10, 12

State v. Lehman, 321 N.W.2d 212 (Wis. 1982) ............................................................ 13

State v. Poindexter, 545 S.E.2d 414 (N.C. 2001) ......................................................... 20

State v. Sanchez, 6 P.3d 486 (N.M. 2000) .................................................................... 15

State v. Sullivan, 949 A.2d 140 (N.H. 2008) ............................................................... 15

State v. Trent, 398 A.2d 1271 (N.J. 1979) .................................................................... 11

State v. Wideman, 739 P.2d 931 (Haw. 1987) ............................................................. 14

Sullivan v. Louisiana, 508 U.S. 275 (1993) ..................................................... 17, 18, 19

Tanner v. United States, 483 U.S. 107 (1987) ............................................................. 19

United States v. Acevedo, 141 F.3d 1421 (11th Cir. 1998) .......................................... 20

United States v. Ballard, 663 F.2d 534 (5th Cir. Unit B Dec. 1981) .......................... 18

United States v. Barone, 83 F.R.D. 565 (S.D. Fla. 1979) ............................................ 13

United States v. Brown, 784 F.3d 1301 (9th Cir. 2015) .............................................. 14

United States v. Cencer, 90 F.3d 1103 (6th Cir. 1996) ................................................ 14

United States v. Curbelo, 343 F.3d 273 (4th Cir. 2003) .................................. 18, 20, 21

United States v. Evans, 635 F.2d 1124 (4th Cir. 1980) ............................................... 15

vi

United States v. Fattah, 914 F.3d 112 (3d Cir. 2019) ................................................. 10

United States v. Gambino, 788 F.2d 938 (3d Cir. 1986) ............................................. 13

United States v. Gomez, 219 F. App’x 703 (9th Cir. 2007).......................................... 15

United States v. Gonzalez-Lopez, 548 U.S. 140 (2006) ......................................... 16, 20

United States v. Hillard, 701 F.2d 1052 (2d Cir. 1983) .................................. 12–13, 15

United States v. Lamb, 529 F.2d 1153 (9th Cir. 1975) ............................................... 12

United States v. Lapier, 796 F.3d 1090 (9th Cir. 2015) .............................................. 21

United States v. Neal, 101 F.3d 993 (4th Cir. 1996) ................................................... 23

United States v. Olano, 507 U.S. 725 (1993) ......................................................... 13, 22

United States v. Phillips, 664 F.2d 971 (5th Cir. Unit B Dec. 1981) ......................... 13

United States v. Ullah, 976 F.2d 509 (9th Cir. 1992) ................................................. 18

United States v. Virgen-Moreno, 265 F.3d 276 (5th Cir. 2001) .................................. 14

United States v. Webster, 162 F.3d 308 (5th Cir. 1998) .............................................. 11

Vasquez v. Hillery, 474 U.S. 254 (1986)....................................................................... 20

Washington v. Recuenco, 548 U.S. 212 (2006) ............................................................. 14

Weaver v. Massachusetts, 137 S. Ct. 1899 (2017) ................................................ passim

Williams v. Florida, 399 U.S. 78 (1970) .............................................................. 2, 9, 10

Constitutional Provisions

U.S. Const. amend. VI .......................................................................................... passim

U.S. Const. art. III, § 2 ................................................................................................... 9

vii

Statutes

28 U.S.C. § 1257 .............................................................................................................. 1

Tex. Code Crim. Proc. Ann. art. 37.071, § 2 .................................................................. 4

Rules

Ariz. R. Crim. P. 24.1 .................................................................................................... 10

Fed. R. Crim. P. 24 ....................................................................................................... 13

Haw. R. Penal P. 24 ...................................................................................................... 14

Idaho Crim. R. 24 .......................................................................................................... 13

Sup. Ct. R. 13 .................................................................................................................. 1

Sup. Ct. R. 30 .................................................................................................................. 1

Other Authorities

50A C.J.S. Juries § 532 (2021) ..................................................................................... 13

Op. of the Justs. (Alternate Jurors), 623 A.2d 1334 (N.H. 1993) .......................... 11, 13

S. Rep. No. 93-1277 (1974) ........................................................................................... 19

viii

PETITION FOR A WRIT OF CERTIORARI

Petitioner Mark Gonzalez respectfully petitions this Court for a writ of

certiorari to review the judgment of the Court of Criminal Appeals of Texas (CCA) in

his case.

OPINIONS AND ORDERS BELOW

The CCA’s decision affirming Gonzalez’s conviction and death sentence on

direct appeal is reported in part at 616 S.W.3d 585 and is reprinted in full in the

Petition Appendix at 1a–129a. Its decision denying rehearing is unpublished and is

reprinted in the Petition Appendix at 130a.

JURISDICTION

This Court has jurisdiction under 28 U.S.C. § 1257(a). The CCA entered its

judgment on November 4, 2020, and denied a timely motion for rehearing on March

3, 2021. This petition is timely pursuant to Supreme Court Rules 13.3 and 30.1 and

this Court’s order dated July 19, 2021.

CONSTITUTIONAL PROVISIONS INVOLVED

The Sixth Amendment to the United States Constitution provides, in relevant

part, that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy

and public trial, by an impartial jury . . . .” U.S. Const. amend. VI.

1

INTRODUCTION

This case presents significant and recurring questions of federal law that

urgently require this Court’s review, especially in light of its recent decision in Ramos

v. Louisiana, 140 S. Ct. 1390 (2020): (1) whether, after a trial court substitutes a juror

in the middle of deliberations, the court’s failure to instruct the jury to restart its

deliberations violates the Sixth Amendment; and (2) whether such a violation is

structural error that necessitates automatic reversal.

As this Court made clear in Ramos, the Sixth Amendment’s guarantee of a

trial by an impartial jury is no hollow pledge—“the promise of a jury trial surely

mean[s] something.” Id. at 1395. This Court had little trouble, following centuries of

common law, founding-era practices, and constitutional tradition, concluding that the

Sixth Amendment’s promise of a jury trial demands unanimity. Id. at 1395–97. Along

with the collective decision-making that is the “essential feature of a jury,” Williams

v. Florida, 399 U.S. 78, 100 (1970), the unanimity requirement gives the jury-trial

right its meaning, see Ramos, 140 S. Ct. at 1395–97.

This essence of the jury-trial guarantee comes under threat when a juror is

replaced during deliberations. If the trial court does not instruct the new jury to

restart deliberations, then the substitute juror is simply tossed into the fray, with no

power to alter decisions that the original jury already reached and little hope of

playing a real role in resolving the outstanding issues. Indeed, the outsider may well

face coercion if the other jurors substantially agree on the issues that are outstanding.

2

A decision by such a jury does not reflect the collective deliberations or the

meaningful unanimity demanded by the Sixth Amendment.

That is precisely what happened here. After Gonzalez’s jury had deliberated

extensively and reached a verdict on the first of two sentencing issues, the court

substituted an alternate juror into deliberations. However, the court declined to

instruct the new jury to restart deliberations and instead left the substitute juror

powerless to affect the predetermined verdict, likely unable to influence ongoing

discussions about the remaining issue, and vulnerable to coercion. By denying the

requested instruction, the court deprived Gonzalez of his Sixth Amendment right to

a unanimous verdict following collective deliberations and undermined the integrity

of the penalty phase in a manner not susceptible to harmless-error analysis.

The questions presented warrant this Court’s attention. Whether such an

omission undercuts the Sixth Amendment’s jury-trial protection is a matter of

overriding constitutional importance across jurisdictions, particularly in the wake of

Ramos. Moreover, whether such an omission requires reversal is a question on which

lower courts need guidance, as they have adopted different approaches to assess when

altering the composition of a jury during deliberations necessitates relief. Finally,

this case is a strong vehicle for this Court to resolve the questions presented: It

arrives at the Court on direct appeal; the CCA analyzed the Sixth Amendment issue

and squarely decided the structural-error question below; the issue is outcomedeterminative; and the state court’s procedural ruling does not foreclose review.

Accordingly, this Court should grant certiorari to assess whether this error—one that

3

undermines the essence of the jury-trial guarantee—is a Sixth Amendment violation

that is structural in nature.

STATEMENT OF THE CASE

I.

Proceedings in the Trial Court

Following a grueling and contentious guilt phase, a jury convicted Gonzalez of

the capital murder of Bexar County Sheriff’s Deputy Sergeant Kenneth Vann. The

case proceeded within days to a sentencing trial before the same jury.

After the close of penalty-phase evidence, the trial court charged the jury with

answering two sentencing “Special Issues,” which would determine the sentence. 52

RR 41–44.1 Special Issue 1 asked whether the State had proven beyond a reasonable

doubt that Gonzalez “constitute[d] a continuing threat to society.” Id. at 42. If at least

ten jurors answered “no,” then deliberations would cease, and the court would impose

a life sentence. Id. If all twelve jurors unanimously answered “yes,” then, and “only

then,” could the jury proceed to Special Issue 2. Id. Special Issue 2 asked whether

sufficient mitigation existed to warrant a sentence of life in prison. Id. at 43. If all

twelve jurors answered “no,” then the court would impose death. If at least ten

answered “yes,” then it would impose life imprisonment without the possibility of

parole. Id. at 43–44.2 The court further instructed the two alternate jurors that they

1 Trial transcripts in the Reporter’s Record are cited with the volume number, “RR,” and the page

number(s). Documents in the Clerk’s Record are cited with the volume number, “CR,” and the page

number(s).

2 Under Texas law, a defendant is sentenced to death only if the jury unanimously answers “yes” to

Special Issue 1 and “no” to Special Issue 2. See Tex. Code Crim. Proc. Ann. art. 37.071, § 2(b)–(g). To

encourage vigorous debate, Texas law requires that at least ten jurors answer either “no” to Special

Issue 1 or “yes” to Special Issue 2 to reach a life verdict. See id.; Draughon v. State, 831 S.W.2d 331,

337 (Tex. Crim. App. 1992). If the jurors cannot agree to a verdict on either question, then the court

imposes a life sentence. See Tex. Code Crim. Proc. Ann. art. 37.071, § 2(g).

4

were to retire to the jury room with the twelve-person jury, but that they should “not

participate in any deliberations or in any voting.” Id. at 40.

The jury began deliberating after closing arguments and continued into the

early hours of the next morning. Cf. 5 CR 2024 (jury note stamped October 20, 2015

at 1:34 a.m.). During those lengthy discussions, the jurors submitted notes to the

court seeking clarity about the meaning of Special Issue 2, the mitigation charge. See

id. at 2023–24. By that time, then, the twelve jurors had already unanimously

reached a verdict of “yes” to Special Issue 1. See 52 RR 42 (“only” if jurors returned a

“yes” verdict on Special Issue 1 could they proceed to Special Issue 2).

The jury paused deliberations only when the hostility in the jury room

escalated so greatly that one juror began experiencing a crippling anxiety attack and

had to be excused. See id. at 111; 53 RR 4–10. As Juror R.P. recounted to the court

the following morning, “tensions got really high” in the jury room, with “everybody

screaming at each other.” 53 RR 6–7. Under such strain, Juror R.P. began sweating

and shaking uncontrollably. Id. at 5. He decided that he could not continue

deliberating, and, over the defense’s objection, the court released him from further

service. Id. at 8–10.3

At that point, in the middle of deliberations and again over the defense’s

objection, the court replaced Juror R.P. with an alternate juror, S.F. Id. at 10–11, 21.

The court instructed Juror S.F. only that she would now be able to participate in

3 In a later colloquy before the court, a different juror who favored a life sentence similarly described

tensions in the jury room. See id. at 54–67.

5

deliberations and to vote. Id. at 10–11. The court said nothing at all to the remainder

of the newly constituted jury. See id.

The court then denied defense counsel’s request that, at minimum, the court

instruct the jury to restart its penalty-phase deliberations. Id. at 21–22.

[DEFENSE]: I need to object to the seating of the alternate

juror. . . . And I think it’s appropriate to ask that they go

back to guilt/innocence with this new 12, re-deliberate that,

and certainly for them to re-deliberate the entirety of

punishment, presuming that my objection to seating this

alternate juror is denied.

THE COURT: That is denied.

Id. (emphasis added).

Defense counsel elaborated that Juror S.F. did not have an opportunity to vote

on the already-decided first Special Issue: “The thing about it is, now we have a

different 12th juror. . . . She could change the answer to [Special Issue] Number 1. . . .

[W]e have a new juror which could change the answer to [Special Issue] Number 1.”

Id. at 23–24.4 The State, understanding the crux of the defense’s request, interjected

that “[t]he jury may have voted on [Special Issue] Number 1 before [Juror S.F.] was

on the jury . . . so she may not have voted on the first special issue.” Id. at 25. The

court rejected the notion that penalty-phase deliberations should restart, declaring,

“What has been decided should remain, period. I don’t see how you can go back and

change something. She wasn’t on the jury at that time.” Id. (emphasis added). The

court asked, “[W]hat are we supposed to do, go back and re-litigate the first

The ensuing discussion on the defense’s request to restart deliberations was interspersed with

comments from the parties, the court, and the court’s staff regarding a jury question. Id. at 22–28.

4

6

[guilt/innocence] phase of the trial?” Id. at 26. The defense again clarified, “No, no.

Not the first phase, Special Issue Number 1.” Id. The court was unmoved: “And the

same issue with what has happened already. I mean, how can you go back and change

the vote or change anything?” Id. Once more, the State intervened: “It’s been decided

by the jury as it was comprised at that time.” Id. The State wanted to focus on the

pending jury question “and not speculate as to what the effect of the new juror is.” Id.

at 27. The court agreed with the State, id., and, having thereby denied the defense’s

request to restart penalty-phase deliberations, turned to the jury’s note, id. at 28.

Thus, the new jury received no instruction to restart its penalty-phase

deliberations.

That same day, the newly constituted jury concluded deliberations. Id. at 72.

In addition to the pre-substitution finding that Gonzalez would pose a continuing

threat, the jury found the mitigation insufficient to warrant leniency, and the court

polled the jury. Id. at 73–75. In accordance with the jury’s verdicts, Gonzalez was

sentenced to death. 64 RR 7.

II.

The CCA’s Decision

The CCA affirmed. Despite disclaiming any “magic words” requirement, it held

that Gonzalez had not adequately preserved at trial his Sixth Amendment claim that

the court should have instructed the reconstituted jury to deliberate anew. Pet. App.

11a–12a. Even so, recognizing that the claim presented an important issue of first

impression, the court proceeded to consider it on the merits. Id. at 2a, 12a–17a.5

5 The CCA published its opinion on the juror-substitution matter at issue here, rendering the opinion

precedential, but left the remainder of its decision unpublished.

7

The CCA surveyed federal decisions on whether the Sixth Amendment

requires an instruction to deliberate anew after a mid-deliberations juror

substitution. The court identified a split in the federal case law. It described the

Second, Third, Fifth, and Ninth Circuits as having “generally concluded that an

instruction to deliberate anew is a vital procedural safeguard to preserve the

‘essential feature’ of the Sixth Amendment right to trial by jury.” Id. at 13a–14a. In

contrast, the CCA read the Fourth, Sixth, Seventh, and Eleventh Circuits as placing

less emphasis on how the jury was instructed, and more on “whether the

reconstituted jury was actively prevented from deliberating anew.” Id. at 14a.

Despite acknowledging that “[a]n instruction to deliberate anew can operate

as a valuable procedural safeguard to ensure that a re-formed jury deliberates with

the new member,” the CCA held that the failure to give such an instruction is not

structural error that undermines the framework of a trial and demands reversal. Id.

at 15a. Instead, relying on the alternates’ presence during deliberations, the length

of the deliberations, and the post-verdict polling, the CCA found any error harmless.

Id. at 15a–17a.

Gonzalez’s timely motion for rehearing was denied, id. at 130a, and this

petition follows.

REASONS FOR GRANTING THE PETITION

I.

Failing to Instruct a Reconstituted Jury to Deliberate Anew Strikes at

the Core of the Sixth Amendment Jury-Trial Guarantee.

This Court should grant certiorari because of the importance of the Sixth

Amendment right at stake, especially given the Court’s renewed focus on jury

8

unanimity. The jury-trial right in criminal cases is among the most jealously guarded

of constitutional rights, and its essence—group deliberations leading to a shared,

unanimous decision—is gravely at risk when one juror replaces another during

deliberations. Ramos settled that the Sixth Amendment unanimity requirement

applies against the States. This Court should now take the next logical step and

address how altering the jury’s composition mid-deliberations without an instruction

to deliberate anew implicates that unanimity requirement.

The jury-trial right—the sole right guaranteed in both the text of the

Constitution and the Bill of Rights—is “fundamental to the American scheme of

justice.” Duncan v. Louisiana, 391 U.S. 145, 149 (1968); see U.S. Const. art. III, § 2;

U.S. Const. amend. VI. The right aims to protect the defendant’s interest in a fair

trial by providing a bulwark against tyranny, as well as to further the societal interest

in public participation in criminal proceedings. Duncan, 391 U.S. at 156; Blakely v.

Washington, 542 U.S. 296, 306 (2004) (“Just as suffrage ensures the people’s ultimate

control in the legislative and executive branches, jury trial is meant to ensure their

control in the judiciary.”). Any intrusion upon this right “operat[es] upon the spinal

column of American democracy.” Neder v. United States, 527 U.S. 1, 30 (1999) (Scalia,

J., concurring in part and dissenting in part).

Two interrelated features of the jury form the sine qua non of the jury-trial

right: the jury’s collective decision-making process, and the resultant unanimity of

its verdict. See Williams, 399 U.S. at 100; Ramos, 140 S. Ct. at 1395–97. The jury’s

“essential feature . . . lies in the interposition between the accused and his accuser of

9

the commonsense judgment of a group of laymen, and in the community participation

and shared responsibility that results from that group’s determination of guilt or

innocence.” Williams, 399 U.S. at 100.6 That “essential feature” of fulsome group

deliberations is inextricably linked with the jury-unanimity requirement that this

Court hailed as historic and fundamental in Ramos. See Jones v. United States, 527

U.S. 373, 382 (1999) (“[W]e have long been of the view that ‘[t]he very object of the

jury system is to secure unanimity by a comparison of views, and by arguments

among the jurors themselves.’” (second alteration in original) (quoting Allen v. United

States, 164 U.S. 492, 501 (1896))); see also Ramos, 140 S. Ct. at 1395–97. For example,

twelve jurors may vote for the same outcome, but the verdict is not meaningfully

unanimous if the jurors voted at random and just happened to agree. “[A] unanimous

jury vote does not necessarily mean that unanimity in the constitutional sense has

been attained. Rather, it is a consensus reached after each juror examines the

evidence and the parties’ arguments . . . and all of the jurors exchange their

individual perceptions, experiences, and assessments.” State v. Lamar, 327 P.3d 46,

51 (Wash. 2014).

A trial court causes a particularly grave injury to the jury-trial guarantee—

both its “essential feature” of collective deliberations and the concomitant unanimity

6 Because of the constitutional primacy of the jury’s collective decision-making in reaching unanimity,

this Court and others have endeavored to protect the ability of jurors to debate freely and

meaningfully. See, e.g., State v. Corsaro, 526 A.2d 1046, 1052 (N.J. 1987) (declaring it “necessary to

structure a process and create an environment so that the mutual or collective nature of the jury’s

deliberations . . . remains intact until a final determination is reached”); Jenkins v. United States, 380

U.S. 445, 446 (1965) (per curiam) (remanding for a new trial after the trial judge gave a coercive

instruction); see also, e.g., United States v. Fattah, 914 F.3d 112, 149–51 (3d Cir. 2019) (affirming the

dismissal of a juror who refused to deliberate); Ariz. R. Crim. P. 24.1(c) (permitting a new trial if jurors

voted by lot or received bribes for their votes).

10

requirement—when it replaces a juror during deliberations. In an oft-cited passage,

the California Supreme Court explained,

The requirement that 12 persons reach a unanimous

verdict is not met unless those 12 reach their consensus

through deliberations which are the common experience of

all of them. . . . Deliberations provide the jury with the

opportunity to review the evidence in light of the

perception and memory of each member. Equally

important in shaping a member’s viewpoint are the

personal reactions and interactions as any individual juror

attempts to persuade others to accept his or her viewpoint.

The result is a balance easily upset [if] a new juror enters

the decision-making process after the 11 others have

commenced deliberations.

People v. Collins, 552 P.2d 742, 746 (Cal. 1976); see also, e.g., Op. of the Justs.

(Alternate Jurors), 623 A.2d 1334, 1337 (N.H. 1993) (quoting Collins); State v. Trent,

398 A.2d 1271, 1273–74 (N.J. 1979) (adopting Collins’s reasoning).

A mid-deliberations substitution undercuts the jury-trial pillars of unanimity

and collective decision-making in multiple ways. With respect to matters the original

jury has already decided, “the resulting verdict . . . will reflect only the views of the

original jurors, thereby depriving the defendant of his right to unanimity from the

requisite number of jurors.” State v. Guytan, 968 P.2d 587, 594 (Ariz. Ct. App. 1998);

see also, e.g., United States v. Webster, 162 F.3d 308, 346 (5th Cir. 1998) (same). Such

verdicts are not the product of collective deliberations by the twelve jurors ultimately

charged to reach a decision and thus subvert the jury’s “essential feature.” With

respect to as-yet-undecided matters, the replacement juror is an outsider to the

decision-making dynamic that has already developed, leaving him less likely to be

able to influence or meaningfully participate in the discussion. See People v. Burnette,

11

775 P.2d 583, 588 (Colo. 1989); People v. Ryan, 224 N.E.2d 710, 712–13 (N.Y. 1966).

The new juror thus often lacks “a fair opportunity” to share his “views and to persuade

others.” Corsaro, 526 A.2d at 1054; Lamar, 327 P.3d at 52 (expressing concern that

the substitute “had no opportunity to offer his views or try to convince his fellow

jurors”). Moreover, the newcomer is susceptible to coercion by the eleven-juror unit.

See, e.g., United States v. Lamb, 529 F.2d 1153, 1156 (9th Cir. 1975) (en banc)

(recognizing that the “inherent coercive effect upon an alternate juror who joins a

jury . . . is substantial”); see also, e.g., People v. Roberts, 824 N.E.2d 250, 261 (Ill. 2005)

(same). As a result, the new juror cannot fully participate in deliberations and there

can be no meaningful unanimity, vitiating the Sixth Amendment jury-trial right.

These constitutional trespasses are particularly dangerous because the need

to substitute a juror during deliberations arises at volatile moments. When

deliberations get heated and acrimonious—when a holdout faces intimidation or

pressure from the other jurors and, for example, experiences debilitating panic

attacks—then the court must consider replacing the distressed juror. See, e.g., Lamb,

529 F.2d at 1156 (recognizing that “[a] lone juror who could not in good conscience

vote for conviction could be under great pressure to feign illness or other incapacity”);

United States v. Hillard, 701 F.2d 1052, 1057 (2d Cir. 1983) (noting the fear that the

jurors “might bring such influence on a dissenter as to disable him and then require

12

an alternate”).7 The need to substitute a juror thus typically arises when the jurytrial protections, and the fairness of the trial itself, already face serious risk.

The only way to preserve the jury-trial right is for the trial court to instruct

the new jury to restart deliberations. See, e.g., Op. of the Justs., 623 A.2d at 1337

(deeming such an instruction “essential to satisfying the defendant’s constitutional

right to a fair and impartial jury”); State v. Lehman, 321 N.W.2d 212, 224 (Wis. 1982)

(“If the jury is instructed to begin anew with its entire process of deliberation and if

the substituted alternate participates fully in those deliberations, the fundamental

right of the defendant to a unanimous verdict . . . is preserved inviolate.” (quoting

United States v. Barone, 83 F.R.D. 565, 573 (S.D. Fla. 1979))); see also, e.g., United

States v. Olano, 507 U.S. 725, 740–41 (1993) (commending the prophylactic value of

careful instructions in ensuring that deliberations satisfy the Sixth Amendment).8

Charging the new jury to restart deliberations serves several constitutional ends: (1)

ensuring that the original eleven jurors put aside any already-settled findings; (2)

directing the original jurors to disregard the now-extraneous views of the discharged

juror; and (3) safeguarding against coercion by empowering the newcomer to

7 Concerns about precisely this sort of pressure in the jury room prompted the drafters of Federal Rules

of Criminal Procedure (Rules) 23 and 24, which govern juror procedures in federal criminal trials, to

reject altogether a proposal to allow for mid-deliberations juror substitutions. See United States v.

Phillips, 664 F.2d 971, 993 (5th Cir. Unit B Dec. 1981); see also United States v. Gambino, 788 F.2d

938, 948–49 (3d Cir. 1986) (explaining that the Rules committee rejected the same proposal in the

1980s, heeding warnings that any such substitution procedure would face “strong constitutional

objection”). When the committee later amended Rule 24 to grant trial courts the discretion to

substitute jurors post-submission, the committee specified that the trial court must instruct the

reconstituted jury to start deliberations afresh. See Fed. R. Crim. P. 24(c)(3).

8 For these reasons, numerous jurisdictions require the deliberate-anew instruction by statute or

judicial construction. See, e.g., Fed. R. Crim. P. 24(c)(3); Idaho Crim. R. 24(e)(3); see also 50A C.J.S.

Juries § 532 n.51 (2021) (collecting examples).

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participate fully in deliberations. And, absent such an instruction, the substitution

violates the Sixth Amendment. See, e.g., Martinorellan v. State, 343 P.3d 590, 592–

93 (Nev. 2015) (holding that such error is “of constitutional dimension because it

impairs the right to a trial by an impartial jury”).

II.

This Court Should Resolve the Widespread Uncertainty About When

the Failure to Instruct a Reconstituted Jury to Deliberate Anew

Requires Appellate Relief.

This Court should also grant certiorari because lower courts have adopted

inconsistent positions on when a mid-deliberations juror substitution, particularly in

the absence of an instruction to deliberate anew, requires relief. As such substitutions

become more common,9 this Court’s guidance on the appropriate test for relief is

increasingly necessary to secure uniform treatment across jurisdictions. Cf.

Washington v. Recuenco, 548 U.S. 212, 216–18 (2006) (resolving the federal question

whether a Sixth Amendment sentencing error in a state prosecution was structural).

Like the CCA, five circuit courts assign no particular value to the deliberateanew instruction when determining whether a mid-deliberations substitution

warrants relief. See United States v. Virgen-Moreno, 265 F.3d 276, 289–90 (5th Cir.

2001) (rejecting the claim that it was “fatal error” when the trial court “did not

expressly instruct the jurors to begin their deliberations anew” and denying relief);

see also, e.g., United States v. Cencer, 90 F.3d 1103, 1109–10 (6th Cir. 1996) (same);

9 Acknowledging the costs of mistrials, more jurisdictions have begun permitting juror substitutions

during deliberations. Compare Haw. R. Penal P. 24(c) (permitting post-submission substitutions), with

State v. Wideman, 739 P.2d 931, 932 (Haw. 1987) (discussing a prior version of the rule that disallowed

such substitutions); see also, e.g., United States v. Brown, 784 F.3d 1301, 1303–04 (9th Cir. 2015)

(discussing the evolution of the Federal Rules of Criminal Procedure to permit such substitutions).

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Peek v. Kemp, 784 F.2d 1479, 1484–85 (11th Cir. 1986) (en banc) (same); United States

v. Evans, 635 F.2d 1124, 1127–28 (4th Cir. 1980) (same); Henderson v. Lane, 613 F.2d

175, 176–79 (7th Cir. 1980) (same).

In contrast, three circuit courts and several state high courts emphasize the

importance of the instruction when addressing the propriety of relief. The Third

Circuit has concluded that substituting a juror mid-deliberations comports with the

Sixth Amendment only so long as the trial court gives the functional equivalent of an

instruction that the reconstituted jury must start deliberations afresh. See Claudio

v. Snyder, 68 F.3d 1573, 1575–77 (3d Cir. 1995) (noting that the absence of such a

charge “compromise[s] the ‘essential feature’ of a trial by jury”). The Second and

Ninth Circuits have reached similar conclusions, as have multiple state high courts.

See United States v. Gomez, 219 F. App’x 703, 704–05 (9th Cir. 2007) (reversing when

the trial court did not instruct the reconstituted jury to restart deliberations);

Hillard, 701 F.2d at 1056–57 (acknowledging that a substitution undermines

collective deliberations and identifying careful instructions, including the instruction

to deliberate anew, as critical to preserving the jury function); see also, e.g., State v.

Sullivan, 949 A.2d 140, 142–43 (N.H. 2008) (relying on the state analogue to the

federal jury-trial right to reverse when the trial court did not adequately ensure that

the reconstituted jury could restart deliberations); State v. Sanchez, 6 P.3d 486, 495

(N.M. 2000) (presuming prejudice in the absence of the deliberate-anew instruction);

Burnette, 775 P.2d at 589–90 (same).

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This case thus presents this Court with an opportunity to introduce

consistency across courts in the treatment of mid-deliberations substitutions. This

Court should intervene to ensure that lower courts uniformly recognize the

significance of the deliberate-anew instruction for both the collective essence of the

jury-trial right and jury unanimity.10 Without this Court’s guidance, the fault lines

in lower courts’ consideration of these jury-right matters will persist and grow.

III.

A Trial Court’s Failure to Direct a Newly Constituted Jury to Restart

Deliberations Is Structural Error.

A.

This Court Has Identified a Class of Errors in Criminal

Proceedings That Demand Automatic Reversal.

This Court has divided constitutional errors in criminal cases into two

categories: trial errors and structural errors. Trial errors are discrete, isolated events

whose effects can be ascertained, and they entitle a defendant to relief only upon a

showing of specific prejudice. United States v. Gonzalez-Lopez, 548 U.S. 140, 148

(2006) (noting that trial errors “‘occur[] during [the] presentation of the case to the

jury’ and [that] their effect may ‘be quantitatively assessed in the context of other

evidence presented’” (quoting Arizona v. Fulminante, 499 U.S. 279, 307–08 (1991)));

see also, e.g., Delaware v. Van Arsdall, 475 U.S. 673, 674 (1986) (deeming an improper

restriction of the defendant’s right to cross-examine a witness a trial error). The

structural-error doctrine, by contrast, focuses not on measurable effect on the verdict

but on ensuring that “certain basic, constitutional guarantees . . . define the

10 Even those federal courts that have appreciated the Sixth Amendment import of the instruction to

deliberate anew have focused on its effect on the collective nature of jury deliberations and have largely

overlooked its implications for the right to jury unanimity. See, e.g., Claudio, 68 F.3d at 1575–77.

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framework of any criminal trial.” Weaver v. Massachusetts, 137 S. Ct. 1899, 1907

(2017). Structural errors “affect[] the framework within which the trial proceeds,” id.

(quoting Fulminante, 499 U.S. at 310), and “vitiate[] all the jury’s findings,” Sullivan

v. Louisiana, 508 U.S. 275, 281 (1993). Consequently, structural errors require

reversal without a case-specific prejudice inquiry. See Weaver, 137 S. Ct. at 1907–08.

This Court has thus far identified three rationales for deeming errors

structural. Id. at 1908. Errors are structural when their effects “are simply too hard

to measure,” i.e., when there is little point in asking a party to prove harm (or

harmlessness). Id. For example, this Court has deemed the use of an unconstitutional

reasonable-doubt instruction structural error. Sullivan, 508 U.S. at 278–82. Justice

Scalia, writing for the entire Court, explained that the unconstitutional instruction

meant that there was no jury verdict within the meaning of the Sixth Amendment

and that it therefore made no sense to attempt to gauge the error’s effect on the

verdict. Id. at 278–80; see also id. at 281 (describing the impact of the error as

“unmeasurable”). This Court has also categorized errors as structural when they

necessarily implicate fundamental fairness. Weaver, 137 S. Ct. at 1908; see also, e.g.,

Rose v. Clark, 478 U.S. 570, 578 (1986) (reiterating that the denial of a jury trial

necessitates reversal, even where the evidence of guilt is overwhelming). Without

these safeguards, “a criminal trial cannot reliably serve its function” of determining

guilt, “and no criminal punishment may be regarded as fundamentally fair.” Clark,

478 U.S. at 577–78. Lastly, this Court has found structural error when a right is

denied that protects some vital interest beyond avoiding wrongful convictions.

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Weaver, 137 S. Ct. at 1908. Because violating such a right subverts a value unrelated

to the reliability of the trial, the effect on the verdict is irrelevant. Id.

This Court and others have treated the violation of the jury-unanimity

requirement as structural error. See Ramos, 140 S. Ct. at 1408 (reversing a statecourt decision upholding a non-unanimous guilty verdict and noting that “[n]o one . . .

suggests that the error was harmless”); Burch v. Louisiana, 441 U.S. 130, 137–39

(1979) (same); see also, e.g., United States v. Curbelo, 343 F.3d 273, 280–81 (4th Cir.

2003) (holding that the denial of a unanimous jury is structural error); United States

v. Ballard, 663 F.2d 534, 544 (5th Cir. Unit B Dec. 1981) (requiring reversal when it

was “impossible to determine” whether the jury’s verdict was unanimous), modified,

680 F.2d 352 (5th Cir. 1982). A non-unanimous jury verdict, like one not found beyond

a reasonable doubt, is no verdict at all for Sixth Amendment purposes. Cf. Sullivan,

508 U.S. at 278–80. Further, the effect of a non-unanimous verdict is unascertainable.

Curbelo, 343 F.3d at 281 (“We simply cannot know what [e]ffect a twelfth juror might

have had on jury deliberations.”). Finally, the denial of such a consequential right

necessarily implicates fundamental fairness. See, e.g., United States v. Ullah, 976

F.2d 509, 514 (9th Cir. 1992) (reversing convictions based on a non-unanimous verdict

“to prevent a miscarriage of justice”).

B.

The Omission Challenged Here Fits Comfortably Within the

Category of Structural Error.

Contrary to the CCA’s view, after Ramos it should be evident that the Sixth

Amendment violation in Gonzalez’s case is not subject to harmless-error review. This

conclusion follows for several reasons: (1) the infringement upon the jury-trial

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guarantee means that there was no verdict for Sixth Amendment purposes; (2) a

harmless-error analysis is impossible given the black box of jury deliberations;

(3) such error undercuts the fundamental fairness of the trial; and (4) the jury-trial

right protects rights in addition to a trial’s fairness. Everything about the denial of a

deliberate-anew instruction is comparable to other jury-right deprivations that have

been treated as structural error. This error, too, requires automatic reversal.

First, the failure to so direct the jury is structural error because of the illogic

of a harmless-error inquiry. The challenged instructional error strikes at the marrow

of the jury-trial right, leaving no jury verdict within the meaning of the Sixth

Amendment upon which harmless-error review can operate. Accordingly, there can

be no review of whether, absent the error, the verdict would have been the same. See

Sullivan, 508 U.S. at 278–81; see also Neder, 527 U.S. at 31–34 (Scalia, J., concurring

in part and dissenting in part) (explaining that conducting harmless-error review

without a jury verdict that satisfies the Sixth Amendment amounts to courts

usurping the jury function).

Second, the error is structural because of the futility of a harmless-error

inquiry. See Weaver, 137 S. Ct. at 1908. This Court has shielded jury deliberations

from scrutiny to preserve the “absolute privacy” needed for jurors “to engage in the

full and free debate necessary to the attainment of just verdicts.” Tanner v. United

States, 483 U.S. 107, 124 (1987) (quoting S. Rep. No. 93-1277, at 13–14 (1974)).

Deliberations are ideally a black box, wholly confidential and insulated from later

review. See id. at 120–21. Given these strict constraints, the questions relevant to

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specific prejudice—whether the original jurors arrived at any decisions or

substantially agreed on outstanding issues before the substitution; whether those

jurors revisited their decisions afterward and gave the new juror a meaningful

opportunity to influence them—are unanswerable. See, e.g., United States v. Acevedo,

141 F.3d 1421, 1426 n.9 (11th Cir. 1998) (calling it “impossible” to ascertain postverdict “the actual extent of the . . . prejudicial influence” in the jury room); Johnson

v. State, 53 So. 3d 1003, 1008 (Fla. 2010) (per curiam) (recognizing that a middeliberations substitution is structural error because harmless-error analysis “is

nearly impossible to perform” and is “itself fraught with potential to contaminate the

jury process”). Indeed, any attempt to assess harm would be mere conjecture. See

Curbelo, 343 F.3d at 281; cf. Gonzalez-Lopez, 548 U.S. at 150 (rejecting harmlesserror analysis when the inquiry would require pure speculation).

Third, the error is structural because it undercuts the fundamental fairness of

the trial. See Weaver, 137 S. Ct. at 1908. The error impinges upon one of the most

crucial protections of the accused, see Duncan, 391 U.S. at 155–56, and indeed

compromises “the structural integrity of the criminal tribunal itself,” see Vasquez v.

Hillery, 474 U.S. 254, 263–64 (1986); cf. State v. Poindexter, 545 S.E.2d 414, 416 (N.C.

2001) (finding state-law error per se when the defendant was convicted by an elevenperson jury because “[a] trial by a jury that is improperly constituted is so

fundamentally flawed that the verdict cannot stand”). When there can be no certainty

that the jury deliberated properly or that the new jury reached a unanimous verdict

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on every matter confided to its judgment, then no verdict of guilt is reliable, and no

punishment is fundamentally fair. See Clark, 478 U.S. at 577–78.

Finally, the error is structural because the jury-trial right protects not only the

defendant’s interest in a fair trial, but also a broader societal interest in public

involvement in the criminal process. See Blakely, 542 U.S. at 306. Accordingly, the

question of impact on the verdict is immaterial. See Weaver, 137 S. Ct. at 1908.

That other constitutional errors striking at the same or closely related

interests warrant automatic reversal confirms that the error here is structural. As

discussed previously, depriving a defendant of a unanimous verdict by the requisite

number of jurors demands reversal. See Curbelo, 343 F.3d at 280–81; cf. Ramos, 140

S. Ct. at 1408. Whether that deprivation is due to instructional error or some other

cause is immaterial. Cf. United States v. Lapier, 796 F.3d 1090, 1098 (9th Cir. 2015)

(rejecting harmless-error analysis when there was a genuine possibility that

instructional error led to a non-unanimous verdict). Relatedly, this Court has treated

the violation of the jury’s ability to deliberate freely as structural error. See Jenkins,

380 U.S. at 445–46 (remanding for a new trial without considering prejudice after the

trial judge gave a coercive jury instruction). Because the impact of a failure to instruct

a reconstituted jury to start anew mimics the impact of other errors that are

structural, this error must likewise be structural.

The error here is not simply the improper exclusion of evidence or some

unlawful comment by an attorney, but the trial court’s failure to safeguard Gonzalez’s

Sixth Amendment right to a unanimous jury verdict following open and free group

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deliberations. A newly constituted jury instructed to restart its deliberations can be

presumed to have done so. See Olano, 507 U.S. at 740–41. In such circumstances, the

jury-trial guarantee may well withstand the mid-deliberations substitution. But the

trial court in this case never informed the jurors that they had to begin again. In so

erring, the court transformed the nature of the error, depriving Gonzalez of his Sixth

Amendment jury-trial right. Such error necessarily demands reversal, and this Court

should grant certiorari because the CCA was wrong to conclude otherwise.

IV.

This Case Is a Strong Vehicle for This Court to Address the Questions

Presented.

This case provides an excellent vehicle for this Court to resolve the questions

presented. Despite having to substitute a juror into lengthy, heated deliberations, the

trial court plainly refused to instruct the reconstituted jury to deliberate anew. The

Sixth Amendment issue was squarely presented below and analyzed by the CCA.

Then, after surveying in depth the federal precedent, the CCA resolved the

structural-error question on the merits. And as this case comes to the Court on direct

appeal, it does not present the problems that encumber cases on post-conviction

review, such as questions about retroactivity.

Moreover, the questions presented are outcome-determinative. Even an

unpreserved error is still subject to “fundamental error” review under Texas law. See

Proenza v. State, 541 S.W.3d 786, 794 (Tex. Crim. App. 2017) (recognizing that even

unpreserved claims are reviewable on appeal either when they “are of such a

‘fundamental’ nature that they are worth reaching on appeal whether they were

preserved at trial or not” or “when the harm resulting from the error is sufficiently

22

‘fundamentally’ egregious”). Should this Court conclude that the failure to instruct

the new jury to restart deliberations is a Sixth Amendment violation that constitutes

structural error, then the error should qualify as fundamental under Texas law. See

Sanchez v. State, 182 S.W.3d 34, 62–64 (Tex. App. 2005) (holding that the possibility

of a non-unanimous verdict—and the absence of jury instructions to avoid such a

verdict—was fundamental error and remanding for a new trial); cf. United States v.

Neal, 101 F.3d 993, 999 (4th Cir. 1996) (noting that “[e]rrors that are not susceptible

to harmless error review . . . necessarily affect substantial rights”).

Finally, the CCA’s ruling on preservation presents no impediment to this

Court’s review. The ruling is neither independent of federal law, nor adequate to bar

federal review, especially as the trial court understood and rejected defense counsel’s

request for an instruction to deliberate anew. See Osborne v. Ohio, 495 U.S. 103, 123–

24 (1990) (rejecting the adequacy of a procedural bar when the defendant made his

objection known and the trial court understood the objection). This Court therefore

has jurisdiction over Gonzalez’s Sixth Amendment claim.

CONCLUSION

For the foregoing reasons, the petition for a writ of certiorari should be granted.

Respectfully submitted,

Mridula S. Raman

Counsel of Record

DEATH PENALTY CLINIC

UNIVERSITY OF CALIFORNIA, BERKELEY

SCHOOL OF LAW

Berkeley, CA 94720

(510) 642-5748

mraman@berkeley.edu

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