Opposition Brief — Samuel Fields, Petitioner v. Laura Plappert, Warden

Supreme Court briefMay 6, 2024

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No. 23-6912

In the Supreme Court of the United States

SAMUEL FIELDS,

Petitioner,

LAURA PLAPPERT, Warden,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Sixth Circuit

***CAPITAL CASE***

BRIEF IN OPPOSITION

Office of the Kentucky

Attorney General

700 Capital Avenue

Suite 118

Frankfort, KY 40601

(502) 696-5300

Matt.Kuhn@ky.gov

*Counsel of Record

May 6, 2024

MATTHEW F. KUHN*

Solicitor General

ELIZABETH HEDGES

Assistant Solicitor General

QUESTION PRESENTED

Whether the en banc Sixth Circuit erred by holding that the Kentucky Supreme Court did not act contrary to or unreasonably apply clearly established federal

law when it rejected petitioner Samuel Fields’s claim that an experiment his jury

conducted during deliberations violated his constitutional rights, where this Court

has never addressed the constitutionality of jury experiments and the record shows

the experiment did not prejudice Fields.

TABLE OF CONTENTS

QUESTION PRESENTED ............................................................................................. i

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

INTRODUCTION .......................................................................................................... 1

STATEMENT OF THE CASE ....................................................................................... 2

ARGUMENT .................................................................................................................. 6

The Sixth Circuit correctly held that the Kentucky Supreme Court’s

decision is not contrary to or an unreasonable application of clearly

established law. ................................................................................................... 7

II.

The circuits are not split regarding the constitutionality of jury

experiments. ...................................................................................................... 17

III.

This case is a poor vehicle for the question presented because Fields was

not prejudiced by the jury experiment. ............................................................ 25

CONCLUSION............................................................................................................. 30

iii

TABLE OF AUTHORITIES

Cases

Abdul-Kabir v. Quarterman,

550 U.S. 233 (2007) .................................................................................................. 14

Banghart v. Origoverken, A.B.,

49 F.3d 1302 (8th Cir. 1995) .............................................................................. 21, 22

Bebo v. Medeiros,

906 F.3d 129 (1st Cir. 2018)............................................................................... 19, 20

Black v. Workman,

682 F.3d 880 (10th Cir. 2012) .................................................................................. 18

Brecht v. Abrahamson,

507 U.S. 619 (1993) ...................................................................................... 25, 26, 30

Brown v. Davenport,

596 U.S. 118 (2022) ................................................................................................ 8, 9

Carey v. Musladin,

549 U.S. 70 (2006) .............................................................................................. 15, 16

Carter v. State,

753 S.W.2d 432 (Tex. App. 1988) ............................................................................. 22

Davis v. Ayala,

576 U.S. 257 (2015) .................................................................................................. 25

Doan v. Brigano,

237 F.3d 722 (6th Cir. 2001) .................................................................................... 23

Fletcher v. McKee,

355 F. App’x 935 (6th Cir. 2009) ........................................................................ 23, 24

Glebe v. Frost,

574 U.S. 21 (2014) .................................................................................................... 17

Gonzales v. Adams,

370 F. App’x 867 (9th Cir. 2010) .............................................................................. 21

Harrington v. Richter,

562 U.S. 86 (2011) ............................................................................................ 2, 6, 24

Hurst v. Joyner,

757 F.3d 389 (4th Cir. 2014) .................................................................................... 19

Irvin v. Dowd,

366 U.S. 717 (1961) .......................................................................................... 8, 9, 18

Loliscio v. Goord,

263 F.3d 178 (2d Cir. 2001)................................................................................ 17, 18

Lopez v. Smith,

574 U.S. 1 (2014) ........................................................................................ 7, 9, 10, 11

Marshall v. Rodgers,

569 U.S. 58 (2013) .................................................................................................... 14

Nevada v. Jackson,

569 U.S. 505 (2013) .................................................................................................. 11

Oliver v. Quarterman,

541 F.3d 329 (5th Cir. 2008) .................................................................................... 19

Owens v. Duncan,

781 F.3d 360 (7th Cir. 2015) .................................................................................... 20

Panetti v. Quarterman,

551 U.S. 930 (2007) ............................................................................................ 14, 15

Parker v. Gladden,

385 U.S. 363 (1966) ................................................................................................ 8, 9

Patterson v. Colorado,

205 U.S. 454 (1907) .................................................................................................... 9

People v. Gonzales,

No. B156607, 2003 WL 551090 (Cal. Ct. App. Feb. 27, 2003) ................................ 21

Remmer v. United States,

347 U.S. 227 (1954) .................................................................................................. 19

Shinn v. Ramirez,

596 U.S. 366 (2022) .................................................................................................... 6

Smith v. Commonwealth,

645 S.W.2d 707 (Ky. 1983) ....................................................................................... 22

Turner v. Louisiana,

379 U.S. 466 (1965) .......................................................................................... 8, 9, 21

United States v. Avery,

717 F.2d 1020 (6th Cir. 1983) .................................................................................. 24

United States v. Castello,

526 F. Supp. 847 (W.D. Tex. 1981) .......................................................................... 22

United States v. Navarro-Garcia,

926 F.2d 818 (9th Cir. 1991) .................................................................................... 22

White v. Wheeler,

577 U.S. 73 (2015) ...................................................................................................... 7

White v. Woodall,

572 U.S. 415 (2014) ........................................................................................ 7, 10, 14

Williams v. Taylor,

529 U.S. 362 (2000) .................................................................................................. 14

Wood v. Sec’y, Dep’t of Corr.,

793 F. App’x 813 (11th Cir. 2019) ............................................................................ 18

Yarborough v. Alvarado,

541 U.S. 652 (2004) .................................................................................................. 16

Constitutional Provisions

U.S. Const. amend. VI ............................................................................................. 7, 17

U.S. Const. amend. XIV ................................................................................................. 7

Statutes

28 U.S.C. § 2254(d)(1) ................................................................................................ 1, 6

Rules

Sup. Ct. R. 10 ............................................................................................................... 29

Other Authorities

6th Cir. Pattern Jury Instructions 1.05(1) (Mar. 1, 2023) ......................................... 12

INTRODUCTION

This Court has never determined whether (and if so, to what extent) a jury

experiment violates the Constitution. Samuel Fields asks the Court to take up this

novel issue for the first time in one of the most deferential postures in federal law:

review of a state-court decision under the Antiterrorism and Effective Death Penalty

Act (AEDPA). But because this Court has no existing jurisprudence on the issue,

Fields cannot show that the Kentucky Supreme Court’s rejection of his jury-experiment claim was “was contrary to, or involved an unreasonable application of, clearly

established Federal law.” 28 U.S.C. § 2254(d)(1). It follows that the Sixth Circuit’s

decision denying relief under AEDPA was correct. The Court should therefore deny

review.

In 2003, Fields was convicted and sentenced to death for brutally murdering

84-year-old Bess Horton. Fields’s conviction was supported by, among other evidence,

his multiple confessions and two witnesses who found him standing by Ms. Horton’s

mutilated body. During deliberations, members of the jury decided to test a prosecution theory about Fields’s means of entry into Ms. Horton’s house. They did so by

using a blunt-tipped knife, which had been admitted into evidence, to unscrew screws

from a cabinet in the jury room.

Both the Kentucky and federal courts have considered Fields’s argument that

the jury experiment violated his constitutional rights. And both the Kentucky and

federal courts have rejected it. As this sequence makes clear, this case comes to the

Court for consideration under AEDPA. Under that statute’s deferential standard, a

federal court can grant relief only if the relevant state-court decision was “so lacking

in justification” as to be “beyond any possibility for fairminded disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011).

Fields does not get close to meeting this strict standard. Because this Court

has not addressed a constitutional challenge to jury experiments, the principle of law

on which Fields relies is far too abstract to justify federal habeas relief. Moreover,

Fields was not prejudiced by the jury’s experiment. For these reasons and as further

discussed below, the Court should deny the petition for a writ of certiorari.

STATEMENT OF THE CASE

1. Samuel Fields murdered Bess Horton in the early morning hours of August

19, 1993—more than 30 years ago. Pet. App. 233a. Fields had spent the afternoon

before “drinking heavily and consuming ‘horse tranquilizers’” with his girlfriend,

Minnie Burton.1 Id. at 234a.2 At some point in the evening, the two began arguing,

with Fields “throwing furniture, knives, and other objects.” Id. Burton left and went

home. Id.

1 “Horse tranquilizers” refers to PCP, a hallucinogen. Pet. App. 5a.

2 Throughout, internal citations are omitted from appendix quotations, unless otherwise indicated.

Ms. Horton owned the duplex in which Burton lived. At the time, Ms. Horton

“was in the process of evicting Burton.” Id. When Burton arrived at the duplex, she

“was unable to gain entry” and “sat on the front porch.” Id. at 235a. Sometime later,

Fields showed up. He “was making a loud commotion” and was carrying a knife. Id.

He “took Burton’s keys and told her that he would get into the duplex, implying that

he might break in.” Id. A neighbor heard the commotion and called the police. Id.

Two officers responded. Id. at 76a. Ms. Horton lived close by, and the officers

eventually found Fields in her bedroom. One of the officers saw Ms. Horton lying on

the bed. Id. at 78a. “Her ‘throat was slashed,’ and a knife was jammed all the way

through her skull: the knife was ‘buried to the hilt in her right temple’ and ‘the point

of the blade protruded from her left.’” Id. at 73a. When the police found Ms. Horton,

her “hands were literally inside her throat.” Id. at 78a.

One officer asked Fields, “What’s going on? What are you doing?” Id. Fields

responded: “I stabbed her, and I’m into it big time this time . . . . I’m going to prison

for the rest of my life.” Id. The officers arrested Fields. Id. at 79a. After receiving

Miranda warnings, Fields said, “Kill me. Shoot me. I’m into it deep. I killed her.” Id.

The officers discovered several knives and razor blades on his person. Id. At trial, the

parties referred to one of those knives—a butter knife with the tip missing—as the

“twisty knife.” Id. The Commonwealth argued that Fields used the twisty knife to

remove screws on a storm window on Ms. Horton’s house to break in. Id. at 234a.

After arresting Fields, officers took him to a hospital, where an emergency

medical technician examined him. Id. at 79a. The EMT asked Fields “where the blood

was coming from.” Id. Fields responded “in no uncertain terms” that “if [the EMT]

had killed some lady that [he] would have blood on [him] as well.” Id.

2. The trial began on September 8, 2003, and lasted roughly four weeks.3 Trial

Vol. 1, R.30-1, PageID#3973. As the district court explained, “the prosecution emphasized three themes.” Pet. App. 80a. The first theme was that two officers caught Fields

in Ms. Horton’s home. Id. The second theme hinged on timing—“there wasn’t any

opportunity for anyone else to have done this.” Id. And the third theme was that the

physical evidence “pointed to Fields—in particular that Fields’s blood had been found

at the crime scene and that the ‘twisty knife’ had white paint on the end of it, as did

the screws used to attach the window to the house.” Id. The prosecution “also reminded the jury repeatedly that Fields had confessed ‘three different times.’” Id. In

his closing arguments, the prosecutor urged the jury to “[b]elieve [Fields] when he

told [Officer] Lindeman that he did it.” Id. at 81a.

While the jurors deliberated, one juror asked whether Fields could have used

the twisty knife to remove screws from the storm window. Post-Conviction Record

(PCR), R.89-3, PageID#13521. Another juror responded that it “wouldn’t be that

3 This was the second trial. In the first prosecution, the Commonwealth charged Fields with burglary

and murder, and the jury convicted him on both counts before sentencing him to death. See Pet. App.

292a–293a. But the Kentucky Supreme Court reversed that conviction on direct appeal. Id. at 293a.

That first conviction is unrelated to the current appeal.

hard” and used the twisty knife to remove screws from a cabinet in the jury room. Id.

at PageID#13521–22. The juror who raised the issue later stated that the experiment

“wasn’t what, you know, said that [Fields] was guilty or not guilty.” Id. at

PageID#13522.

The jury convicted Fields of murder and burglary, and he was sentenced to

death. Pet. App. 233a. After the Kentucky Supreme Court rejected Fields’s claim regarding the jury’s experiment, id. at 199a–204a, Fields sought relief under AEDPA.

Then-District Judge Thapar denied Fields’s jury-experiment claim. Id. at 89a–93a.

3. A panel of the Sixth Circuit reversed by a divided vote. Id. at 55a–71a. On

rehearing en banc, however, the full Sixth Circuit affirmed the denial of relief. Id. at

4a. The en banc court noted that this Court “has not identified any principles to distinguish proper from improper jury experiments”; therefore, Fields could not “show

that the experiment in his case violated ‘clearly established’ law from the Supreme

Court.” Id. Indeed, Fields “failed to get past AEDPA’s first step by identifying ‘clearly

established’ law on this topic.” Id. at 13a. The court reasoned that none of the cases

Fields cited “‘clearly’ appl[ied] to the jury experiment in his case.” Id. at 17a. Furthermore, the court held, Fields’s argument that the jury experiment violated his right to

be convicted based on the evidence at trial rested on too “abstract” a proposition. Id.

at 18a.

ARGUMENT

The Sixth Circuit’s decision denying habeas relief does not warrant this Court’s

review. No decision of this Court clearly establishes that the jury experiment conducted in Fields’s trial is unconstitutional. In fact, this Court has not addressed the

constitutionality of jury experiments at all. Fields is thus left to analogize the facts

here to a highly generalized rule applied in other distinct contexts. But this Court

has repeatedly admonished federal courts against doing exactly that. And even if

Fields could show a violation of clearly established law, it would not warrant this

Court’s intervention because he has not demonstrated that the jury experiment actually prejudiced him.

A few background principles govern this case. A writ of habeas corpus is an

“extraordinary remedy” that guards against “extreme malfunctions in the state criminal justice system[].” Shinn v. Ramirez, 596 U.S. 366, 377 (2022) (citation omitted).

Under AEDPA, a federal court may upset a state-court judgment only in very narrow

circumstances: as relevant here, if the state decision “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). Under this demanding

standard, federal courts do not undertake ordinary error correction or anything close

to it. Relief can be granted only if the state court’s decision was “so lacking in justification” as to be “beyond any possibility for fairminded disagreement.” Harrington,

562 U.S. at 103. That the death penalty is at stake does not make AEDPA’s standard

any less strict. White v. Wheeler, 577 U.S. 73, 81 (2015) (per curiam).

The Sixth Circuit correctly held that the Kentucky Supreme Court’s

decision is not contrary to or an unreasonable application of clearly

established law.

1. The Warden and Fields agree on one thing: this Court has not addressed the

constitutionality of jury experiments. As the Sixth Circuit noted, that “lack of precedent makes it difficult for Fields even to pinpoint the specific constitutional right that

the experiment implicates.” Pet. App. 13a; see Pet. 1–2 (citing both the Sixth Amendment and the Due Process Clause of the Fourteenth Amendment). It also resolves

this case. The absence of any on-point precedent from this Court “alone suffices to

establish that the Kentucky Supreme Court’s conclusion was not ‘objectively unreasonable.’” White v. Woodall, 572 U.S. 415, 423 (2014) (citation omitted). Therefore,

the Sixth Circuit’s decision denying relief was demonstrably correct.

2. Without an applicable decision from this Court, Fields retreats to several

cases—only some of which involved a jury—to cobble together the abstract rule that

“a verdict must be based on the evidence developed at trial.” Pet. 18. But that rule

frames matters at an extremely “high level of generality.” Lopez v. Smith, 574 U.S. 1,

6 (2014) (per curiam) (citation omitted). Under AEDPA, such “abstract” propositions

do not “establish clearly the specific rule [a prisoner] needs.” Id. As this Court has

“repeatedly explained,” “the more general the federal rule, the more leeway state

courts have in reaching outcomes in case-by-case determinations before their decisions can be fairly labeled unreasonable.” Brown v. Davenport, 596 U.S. 118, 144

(2022) (cleaned up) (citation omitted).

An examination of Fields’s favored cases shows that he reasons from the most

general of legal propositions. For example, he cites Turner v. Louisiana, 379 U.S. 466

(1965). The issue there was whether it was permissible for the officers who stayed

with the jury during sequestration to serve as the principal prosecution witnesses.

Id. at 467–68. In that unique context, Turner said that the “‘evidence developed’

against a defendant shall come from the witness stand in a public courtroom.” Id. at

472–73. The officers’ interactions with the jury transgressed that principle because

their credibility was critical to the case. See id. at 473. Merely describing Turner’s

facts shows how different it is from this case. The same is true of Irvin v. Dowd, 366

U.S. 717 (1961). In that case, this Court found that “[e]ight out of the 12” jurors who

convicted the petitioner “thought [he] was guilty” based on public reporting before

they heard any evidence; on that basis, the Court vacated the petitioner’s conviction.

Id. at 727. Again, that fact-specific holding does not clearly establish a rule for this

case.

Fields’s remaining cites to this Court’s decisions also implicate distinct principles that do not apply to the situation here. For example, he cites Parker v. Gladden,

385 U.S. 363 (1966) (per curiam). Parker had nothing to do with jury experiments. It

involved a bailiff making disparaging comments about the defendant to the jury. Id.

at 363–64. Fields cites Parker for the “undeviating rule” that the “rights of confrontation and cross-examination are among the fundamental requirements of a constitutionally fair trial.” Id. at 364–65 (citation omitted). The Warden has no quarrel with

this general statement of law, but it does not clearly establish that the jury experiment here was unconstitutional.

Another case on which Fields relies, Patterson v. Colorado, did not even involve

a jury trial. 205 U.S. 454 (1907). Instead, it concerned imposing contempt for publishing articles and a cartoon “intended to embarrass the court in the impartial administration of justice.” Id. at 458–59. As Fields notes, Patterson said that “conclusions

to be reached in a case will be induced only by evidence and argument in open court,

and not by any outside influence, whether of private talk or public print.” Id. at 462.

But a holding at such “a high level of generality” simply “cannot supply a ground for

relief” under AEDPA. See Brown, 596 U.S. at 136. In sum, as the Sixth Circuit put it,

“by framing Parker, Turner, Irvin, and Patterson at a sky ‘high level of generality,’

Fields overlooks what matters: their holdings.” Pet. App. 18a (quoting Lopez, 574 U.S.

at 6). Those holdings are much too narrow and fact-specific to provide a basis for

habeas relief here.

3. With no jury-experiment caselaw, Fields is left with only a highly generalized principle about the jury considering the evidence presented to it. But that rule

is much too abstract to supply a ground for AEDPA relief here. This Court’s Woodall

decision illustrates the point. The issue there was whether the Constitution requires

a no-adverse-inference instruction when a defendant chooses not to testify during the

penalty phase. Woodall, 572 U.S. at 418–19. This Court had already addressed a similar question during the guilt phase and had said that, generally speaking, “the privilege against self-incrimination applies to the penalty phase.” Id. at 420–21. But no

prior decision of this Court squarely addressed the question presented. Id. So the

prisoner was left to argue that Supreme Court precedent, taken “together,” left only

one reasonable conclusion. See id. at 420 (citation omitted). That was not good

enough. Under AEDPA, federal courts cannot extend Supreme Court precedent even

when doing so may be the “logical next step.” Id. at 426–27. “‘[I]f a habeas court must

extend a rationale before it can apply to the facts at hand,’ then by definition the

rationale was not ‘clearly established at the time of the state-court decision.’” Id. at

426 (citation omitted).

Woodall is far from the only decision to so hold. For example, in Lopez, the

prisoner sought AEDPA relief on the theory that he did not receive constitutionally

adequate notice of the charges against him because of “a prosecutorial decision to

focus on another theory of liability at trial.” 574 U.S. at 5. The lower court, however,

could not identify a Supreme Court decision “holding as much.” Id. Instead, the lower

court relied on “three older cases that stand for nothing more than the general proposition that a defendant must have adequate notice of the charges against him.” Id.

at 5–6. Such a general proposition, this Court explained, “is far too abstract to establish clearly the specific rule [the prisoner] needs.” Id. at 6. The Court underscored

that “[n]one of our decisions . . . addresses, even remotely, the specific question presented by this case.” Id.

The Court applied this principle yet again in Nevada v. Jackson, 569 U.S. 505

(2013) (per curiam). There, the Court reversed the Ninth Circuit’s grant of habeas

relief to a defendant convicted of rape, who argued that the state court improperly

excluded “evidence of prior sexual assault complaints” that he wished to use to impugn the victim’s credibility. Id. at 510. The Court held that by purporting to apply

“Supreme Court decisions holding that various restrictions on a defendant’s ability to

cross-examine witnesses violate the Confrontation Clause,” the appeals court had improperly “elided the distinction between cross-examination and extrinsic evidence by

characterizing the cases as recognizing a broad right to present evidence bearing on

a witness’s credibility.” Id. at 511–12 (cleaned up) (citation omitted). That expansive

approach ran afoul of AEDPA. Viewing precedents so broadly, the Court observed,

“could transform even the most imaginative extension of existing case law into

‘clearly established Federal law, as determined by the Supreme Court.’” Id. at 512

(citation omitted).

So too here. Fields requests AEDPA relief under the general rule, developed

outside the jury-experiment context, that juries must base their decisions on record

evidence. As Fields tells it, the jury’s experiment here involved extrinsic evidence—

the screws from the filing cabinet. But for Fields to prevail, the Court would have to

extend its precedent in at least two ways. The Court would first have to extend

Fields’s abstract rule to jury experiments. Then, the Court would have to extend that

precedent to hold that the jury experiment here was impermissible.

Fields’s request that the Court do so here requires drawing jurisprudential

lines that may not be drawn on AEDPA review. For example, jurors are routinely told

to rely on their common sense and life experience to evaluate witness credibility and

other evidence. See, e.g., 6th Cir. Pattern Jury Instructions 1.05(1) (Mar. 1, 2023). Yet

a juror’s common sense and life experience are not subject to cross-examination. For

instance, say that instead of conducting the experiment with the twisty knife, a juror

who was a handyman told the jury that in his experience the twisty knife could have

easily removed the screws from the storm window. Would that conduct violate

Fields’s general rule that “jurors must decide a case based on the evidence at trial”?

If not, what case from this Court says that a juror’s reliance on his common sense and

life experience is permissible but that the jury experiment here is not? The bottom

line is that Fields’s general rule has not been extended to jury experiments, and there

are a host of details that need to be clarified before AEDPA relief could be appropriate

here.

The Sixth Circuit pinpointed this problem perfectly in discussing whether the

jury’s experiment here violates Fields’s abstract rule:

[T]his general idea does little to help answer the specific question that

matters here: Do jurors “decide guilt based on something other than ‘the

evidence presented’ when they conduct an experiment using the evidence presented”? Stated differently, when does a jury experiment

change from a (valid) “examination of proper evidence” into a (perhaps

impermissible) “production of new evidence”?

Pet. App. 19a. As Judge Thapar further illustrated when denying Fields’s claim:

[T]he jurors did in some sense rely on “the evidence presented”—they

simply examined the twisty knife, which was in fact in evidence. And

thus one might say that the jurors simply examined the evidence—albeit

in an unusual way—but ultimately “based” their verdict on the evidence

itself. Meanwhile, we actively encourage juries to use their “common

sense” and we at least tolerate them using their own “life experiences”—

both of which are not formally admitted as evidentiary exhibits during

the course of a trial. . . . [O]nce we start quibbling with the reasoning

process that jurors use during deliberation, it is hard to know where to

stop.

Id. at 93a. Wrestling with the proper boundaries of the “evidence presented” is not an

exercise suitable for AEDPA review.

To be clear, the Warden is not arguing that all jury experiments are permissible. There might be reasons for drawing some lines and not others when jurors con-

sider extrinsic information during their deliberations. But this Court has never articulated a rule stating under what circumstances—or even whether—a jury experiment

in the jury room is unconstitutional. On AEDPA review, that ends the matter.

4. Fields argues that the Sixth Circuit improperly declined to find a clearly

established rule on the basis that “this Court has not considered a factually identical

case involving a jury experiment.” Pet. 23. And he cites several decisions for the notion that “the lack of a Supreme Court decision on nearly identical facts does not by

itself mean that there is no clearly established federal law.” Pet. 27 (quoting Marshall

v. Rodgers, 569 U.S. 58, 62 (2013)); see id. at 27–28 (citing Woodall, 572 U.S. at 427;

Abdul-Kabir v. Quarterman, 550 U.S. 233, 246–64 (2007); Williams v. Taylor, 529

U.S. 362, 391 (2000)). Of course, lower courts need not wait for a “nearly identical

factual pattern” before granting AEDPA relief. Panetti v. Quarterman, 551 U.S. 930,

953 (2007) (citation omitted). But that rule has no purchase here. This Court has yet

to consider as a matter of law whether and to what extent jury experiments are impermissible. Only if this Court had taken those threshold steps could Fields’s factbased criticism have merit.

The caselaw Fields relies on demonstrates as much. In Panetti, the defendant

argued that he had been denied “certain procedures” required by one of this Court’s

earlier decisions. Id. at 948. That prior decision arose in the same context as Panetti—

a prisoner claiming incompetency. And the earlier decision specifically “identifie[d]

the measures a State must provide when a prisoner alleges incompetency to be executed.” Id. No such preexisting jurisprudential framework exists here.

Fields also argues that the Sixth Circuit improperly relied on the lower courts’

“divergence” on the subject of jury experiments. Pet. 30. However, he misunderstands

both the court’s decision and the applicable law. In the first place, the Sixth Circuit

discussed the lower-court cases after it had already thoroughly examined this Court’s

precedents and concluded that they supplied no clearly established law on jury experiments. Pet. App. 13a–19a. The differences in opinion among the lower courts did

not drive the decision. Instead, that divergence further demonstrated the lack of onpoint caselaw from this Court.

Moreover, Fields does not help his cause when he asserts that Carey v. Musladin treated lower-court disagreements as an indication of a reasonable application

of law rather than an absence of clearly established law. Pet. 30 (citing 549 U.S. 70,

77 (2006)). Either way, Carey supports the Sixth Circuit’s decision. In that case, the

Court addressed a state court’s finding that the petitioner was not prejudiced by the

victim’s relatives’ wearing buttons with the victim’s picture. Carey, 549 U.S. at 72.

The Court noted it had “never addressed a claim that such private-actor courtroom

conduct was so inherently prejudicial that it deprived a defendant of a fair trial.” Id.

at 76. After citing numerous lower-court decisions going both ways on the question,

the Court concluded: “Given the lack of holdings from this Court regarding the potentially prejudicial effect of spectators’ courtroom conduct of the kind involved here, it

cannot be said that the state court unreasonably applied clearly established Federal

law.” Id. at 77 (cleaned up) (citation omitted).

That holding maps onto this case. Indeed, Carey indicates that a divergence

among lower courts shows both the lack of a clearly established rule and the reasonableness of differing interpretations of the Court’s precedents. The landscape is just

as varied here as it was in Carey. See Pet. App. 20a–21a (citing “[c]ountless” decisions

that “found no federal or state error when jurors conducted experiments using ‘extrinsic evidence’ from the jury room” as well as “some decisions that may support

[Fields’s] rule (at least as a matter of state law)”). There is simply no basis in this

Court’s precedents for finding the Kentucky court’s decision unreasonable or the

Sixth Circuit’s decision incorrect.

Nor is this case the proper vehicle for the Court to address jury experiments in

the first instance. Doing so in an AEDPA posture would make little sense given this

Court’s precedents emphasizing that “clearly established law” consists of “the holdings, as opposed to the dicta, of this Court’s decisions as of the time of the relevant

state-court decision.” Yarborough v. Alvarado, 541 U.S. 652, 660–61 (2004) (emphasis

added) (citation omitted). Even if this Court determined for the first time that such

experiments implicate a constitutional guarantee, that would not change the correctness of the Sixth Circuit’s decision here.

II.

The circuits are not split regarding the constitutionality of jury experiments.

1. With no Supreme Court precedent about jury experiments, Fields retreats

to a number of decisions from lower courts to argue that petitioners “potentially may

obtain habeas relief due to the jury’s consideration of extrinsic evidence.” Pet. 19. But

lower-court decisions cannot supply clearly established law to fill the gap in this

Court’s precedents. See Glebe v. Frost, 574 U.S. 21, 24 (2014) (per curiam). Moreover,

the decisions Fields cites involved facts so different that they do not set up a clear

split of authority. Even assuming a rule could be divined from this Court’s precedents

on the propriety of jury experiments, the lower-court decisions cited by Fields simply

do not disagree over that rule.

Take Loliscio v. Goord, for example. 263 F.3d 178 (2d Cir. 2001). Fields cites it

for the notion that a “defendant’s Sixth Amendment rights are implicated when a

jury considers incriminating evidence that was not admitted at trial.” Pet. 19 (quoting

Loliscio, 263 F.3d at 185). But that case involved “the jury’s consideration of . . . rumors concerning [a prisoner’s] prior bad acts.” Loliscio, 263 F.3d at 185. Specifically,

two jurors had heard information outside the record containing “unsubstantiated rumors” about the petitioner and the victim. Id. at 182. That is a far cry from what

happened in this case—a jury experiment during deliberations involving admitted

evidence. Moreover, the Second Circuit ultimately rejected the petitioner’s habeas

claim, finding “that the jury did not consider the rumors in any meaningful way.” Id.

at 190–91.

Several of Fields’s other decisions that arose outside the context of a jury experiment likewise denied relief for claims based on an extra-record influence on the

trial. In Black v. Workman, a juror made a statement about “his personal knowledge

of the roadway.” 682 F.3d 880, 906 (10th Cir. 2012). Although acknowledging this

Court’s statement “that a ‘verdict must be based upon the evidence developed at the

trial,’” the Tenth Circuit held that the state court did not unreasonably apply this

Court’s precedents in finding an “absence of evidence that the jury considered the

information and the fact that the information duplicated trial testimony.” Id. at 906–

07 (quoting Irvin, 366 U.S. at 722). And in Wood v. Secretary, Department of Corrections, the petitioner alleged “that two jurors watched news coverage during his trial”

and “obtained extrinsic evidence about his case.” 793 F. App’x 813, 819 (11th Cir.

2019). However, the Eleventh Circuit applied AEDPA deference and upheld the state

court’s decision denying relief, noting that “[t]he state court could have decided that”

the alleged extrinsic evidence “did not sufficiently establish the presumption of prejudice under [circuit precedent]” or that it “was harmless.” Id. at 820. These decisions

have nothing to say about clearly established law vis-à-vis the jury experiment in this

case.

Hurst v. Joyner, a Fourth Circuit case on which Fields relies, also did not involve jury experiments. 757 F.3d 389 (4th Cir. 2014). Instead, a juror asked for, and

received, advice from her father about finding guidance in the Bible for making a

penalty decision. Id. at 392. The Fourth Circuit remanded for an evidentiary hearing,

applying a “presumption of prejudice . . . when the defendant presents a credible allegation of communications or contact between a third party and a juror concerning

the matter pending before the jury,” based on this Court’s decision in Remmer v.

United States, 347 U.S. 227 (1954). Id. at 397 (citation omitted). Here, of course, no

third-party contact occurred. Oliver v. Quarterman was another case about jurors

consulting a Bible. 541 F.3d 329, 340 (5th Cir. 2008). Again, nothing of the sort happened in Fields’s case.

Indeed, some of Fields’s cases simply underline the impropriety of his attempts

to define a clearly established principle based on broad statements in lower-court decisions. In Bebo v. Medeiros, the court found it “cause for concern” that a book by a

legally educated author containing “commentary about defense attorneys lying and

murderers disclaiming responsibility for stabbings they committed” was in the jury’s

deliberation room. 906 F.3d 129, 136 (1st Cir. 2018). However, the court denied relief

because the state court’s “decision that the book did not qualify as ‘extraneous’ material was not objectively unreasonable.” Id. at 138. The court reasoned that this Court’s

relevant caselaw “involved either communications relating to the specific case sub

judice or contacts between the jurors and individuals or entities involved in that particular trial.” Id. at 138 (citations omitted). Without those factors, AEDPA did not

permit relief.

One of Fields’s favored cases did not involve a jury at all. In Owens v. Duncan,

the petitioner was convicted in a bench trial by a judge who based his verdict on a

factual finding about motive that “had no basis in the record.” 781 F.3d 360, 364 (7th

Cir. 2015) (emphasis added). The Seventh Circuit found that, given “the scantiness

of the actual evidence of [the prisoner’s] guilt,” the trial judge’s finding prejudiced the

verdict and violated “the right to have one’s guilt or innocence adjudicated on the

basis of evidence introduced at trial.” Id. at 365. Thus, the petitioner’s due-process

rights had been violated. Although Fields quotes the opinion, he ignores the court’s

explanation that “[t]he Supreme Court has made clear . . . that a judge or a jury may

not convict a person on the basis of a belief that has no evidentiary basis whatsoever.”

Id. Nothing of the kind occurred in this case. Fields was convicted based on a large

amount of evidence, including eyewitness testimony placing him at the scene of the

murder as well as his three confessions. Owens has no bearing here.4

4 Fields describes Owens’s subsequent consideration and dismissal by this Court as an additional rea-

son the Court should grant review here. Pet. 22–24. However, the Court’s decision to dismiss as improvidently granted an entirely different case more than eight years ago has no bearing on the present

case. Contrary to Fields’s argument, this case does not present the question this Court “was unable to

resolve in Owens.” Id. at 24.

2. Of the lower-court cases Fields cites that did involve jury-experiment claims,

none even suggests a clearly established principle that would support granting relief

here. For example, in Gonzales v. Adams, the Ninth Circuit denied habeas relief

where the jury “test[ed] the sharpness of [a] knife.” 370 F. App’x 867, 868 (9th Cir.

2010). More specifically, “one of the jurors took a cardboard box of Triscuit crackers,

which had been brought into the jury room as a snack, and stabbed the Triscuit box

in order to illustrate that the knife could pierce the box only when given a ‘heavy

thrust.’” People v. Gonzales, No. B156607, 2003 WL 551090, at *3 (Cal. Ct. App. Feb.

27, 2003). In considering whether this Court’s decision in Turner justified AEDPA

relief, the Ninth Circuit explained that Turner “does not bar jurors from manipulating an object in evidence during deliberations to test its properties.” Gonzales, 370 F.

App’x at 868.

Fields also relies on Banghart v. Origoverken, A.B., a products-liability action.

49 F.3d 1302, 1303 (8th Cir. 1995). In that case, there was a question about how items

would burn in a stove, and the stove was admitted into evidence. Id. at 1306. The

jurors first used toothpicks and then matches “to duplicate a portion of the testing”

an expert had done. Id. The toothpicks and the matches were not admitted into evidence. See id. at 1306 & n.7. The Eighth Circuit found that “neither the wooden

matches and toothpicks used in the experiment, nor the experiment itself were extrinsic evidence.” Id. at 1307. In reasoning similar to the Kentucky Supreme Court’s

reasoning as to Fields, the Eighth Circuit explained that “[t]he matches and toothpicks used in the testing were not evidence considered by the jurors in reaching their

decision, but merely objects used in scrutinizing the physical piece of evidence upon

which the case turned.” Id. at 1306; see Pet. App. 203a.

Fields also cites Smith v. Commonwealth, a direct-appeal decision from the

Kentucky Supreme Court about a jury experiment. 645 S.W.2d 707, 708, 710 (Ky.

1983). Although Smith could perhaps have been relevant when Fields was before

Kentucky’s high court, it has no bearing on whether this Court has clearly established

a rule applicable here.5 In any event, Smith involved an experiment on an item that

“ostensibly” came from the crime scene, even though no evidence established that it

actually had. Id. at 710. Here, no one disputes that the twisty knife was properly

admitted into evidence, and the jurors of course were not confused about whether the

cabinet in the jury room was actually the storm window from Ms. Horton’s home. See

PCR, R.89-3, PageID#13522 (“I mean, it was a cabinet. There wasn’t a storm window

in there.”).

5 The same goes for the cases cited in Fields’s footnote 11. That a state court or lower federal court has

found a jury experiment impermissible is not, without more, relevant to whether such an experiment

warrants AEDPA relief. Indeed, only three of the cases in Fields’s footnote cite this Court’s decisions

as support for their jury-experiment conclusions. See United States v. Navarro-Garcia, 926 F.2d 818,

821–23 (9th Cir. 1991); United States v. Castello, 526 F. Supp. 847, 849 (W.D. Tex. 1981); Carter v.

State, 753 S.W.2d 432, 435 (Tex. App. 1988). These three cases are all pre-AEDPA and do not contribute to Fields’s purported split of authority.

Fields also argues that cases cited by the Kentucky Supreme Court in its opinion “recognized that a jury experiment involving extrinsic evidence may be improper.”

Pet. 32. But those cases only underscore the lack of clearly established law on this

subject. In Fletcher v. McKee, the jurors conducted an experiment “to determine

where the gun would have fallen if [the defendant’s wife] had accidentally shot herself

as the defense had claimed.” 355 F. App’x 935, 935–36 (6th Cir. 2009). More specifically, “one juror, holding the gun and pretending to be [the defendant’s wife], would

fall off a table as [the defendant’s wife] supposedly would have fallen off the bed if

she had shot herself as the defense argued had occurred.” Id. at 936. The other jurors

would “watch[] to see where the gun fell.” Id.

The Sixth Circuit held that habeas relief was not justified.6 It reasoned that

“not all jury experiments result in extraneous influence.” Id. at 937. In finding the

experiment permissible, the court emphasized that “[t]he reenactments were conducted in the jury room, in the presence of all the jurors.” Id. at 938. Fletcher distinguished cases “with experiments conducted outside the jury room by individual jurors

who reported the results to the entire jury.” Id.

The jury experiment here is analogous to that in Fletcher. In both cases, the

jury experimented with admitted evidence in the jury room. And in both cases, the

6 The panel first determined, following an earlier Sixth Circuit decision that the Fields en banc court

has now overruled, that jury experiments implicated “constitutional concerns.” Fletcher, 355 F. App’x

at 939 (citing Doan v. Brigano, 237 F.3d 722 (6th Cir. 2001)); see Pet. App. 22a (holding that Doan

“conflicts with” this Court’s decisions on the scope of “clearly established” law under AEDPA).

experiment involved an object in the jury room that had not been admitted into evidence—the table in Fletcher and the screws here. Because Fletcher recognized that

AEDPA relief was not appropriate there, it follows that the Kentucky Supreme

Court’s similar conclusion here was not “beyond any possibility for fairminded disagreement.” See Harrington, 562 U.S. at 103. Indeed, the Sixth Circuit held that

“Fletcher is on all fours with Fields’s case.” Pet. App. 20a.

Fields also cites United States v. Avery, where the Sixth Circuit permitted a

jury experiment on direct review. 717 F.2d 1020 (6th Cir. 1983). The prosecutor there

urged the jury to experiment with several pieces of admitted evidence to test whether

it was possible for the defendant to have moved the items into a crawl space within

three minutes—a key fact dispute. Id. at 1025–26. On direct appeal, the court found

no error. Id. at 1026. The defense had “put into issue the question of how long it would

take to place the materials into the crawl space,” and the jury did not act improperly

by “recreat[ing] the defendant’s actions.” Id. Similar to this case, the experiment in

Avery occurred in the jury room and involved an object that Fields would view as

extrinsic (a person other than the defendant lifting and moving the items). By allowing jury experiments very similar to the one here, Fletcher and Avery confirm that

there is far more than a “possibility for fairminded disagreement.” See Harrington,

562 U.S. at 103.

In sum, none of Fields’s favored cases from other courts provide any reason for

this Court to grant review. What matters is what this Court has said about jury experiments, and the Court has said nothing. In any event, the lower-court decisions

Fields cites unmistakably show the lack of a clearly established rule from this Court.

III.

This case is a poor vehicle for the question presented because Fields

was not prejudiced by the jury experiment.

Regardless of whether the Sixth Circuit’s decision on the jury-experiment

claim was correct, this Court should not grant review because Fields cannot show the

“actual prejudice” necessary on collateral review. See Brecht v. Abrahamson, 507 U.S.

619, 637 (1993) (citation omitted). That alternative basis for the denial of Fields’s

petition, which the Sixth Circuit did not have occasion to resolve, makes this case a

poor vehicle.

A prisoner challenging a state-court conviction under AEDPA must show, at a

minimum, actual prejudice. Id. That means the prisoner must show that the constitutional error had a “substantial and injurious effect or influence in determining the

jury’s verdict.” Id. (citation omitted). This is a high standard. It requires the Court to

have “grave doubt about whether a trial error of federal law” substantially influenced

the outcome. Davis v. Ayala, 576 U.S. 257, 267–68 (2015) (citation omitted). Put

simply, a “State is not to be put to th[e] arduous task [of retrying a defendant] based

on mere speculation that the defendant was prejudiced by trial error.” Id. at 268 (alterations in original) (citation omitted).

Fields cannot meet Brecht’s “actual prejudice” standard. First, he overstates

the evidence that the jury experiment influenced the verdict. Two jurors made statements about the experiment. The first, Ronda Garten, testified that one of the jurors

“used the knife to unscrew the screws in the cabinet to see if it was possible.” PCR,

R.89-3, PageID#13515. She did not explain why the jury conducted the experiment

except “just to see if you could do it.” Id. at PageID#13516. After all, as Kentucky’s

high court recognized, because “there is no dispute that [Fields] entered the home,”

“it is extraneous to debate how he managed to get in [Ms.] Horton’s residence.” Pet.

App. 203a–204a.

The second juror, Lou Ellen Hall, gave a little more explanation, but her testimony undercuts Fields’s claim of actual prejudice. According to Ms. Hall, she probably prompted the jury experiment because she asked whether Fields “could . . . have

unscrewed those screws.” PCR, R.89-3, PageID#13521. In response, another juror

said it “wouldn’t be that hard” and then removed the screws from the cabinet with

the twisty knife. Id. at PageID#13521–22. Even though Ms. Hall is the juror who

testified that she raised the issue, she stated that whether Fields could unscrew the

storm window “wasn’t what, you know, said that he was guilty or not guilty.” Id. at

PageID#13522. Thus, the jury did not determine Fields’s guilt based on the jury experiment.7

On the other side of the ledger, evidence of Fields’s guilt was substantial. There

is no question that Fields gained entry into Ms. Horton’s home on the night she was

murdered. After all, the two officers who first arrived at the scene testified to finding

Fields in Ms. Horton’s bedroom with her dead body. Trial Vol. 13, R.30-13,

PageID#5944–46; Trial Vol. 14, R.30-14, PageID#6046. So a jury experiment about

whether Fields could have removed the screws from the storm window was largely

academic.

Shortly after being found in Ms. Horton’s bedroom, Fields confessed three

times to killing her. He confessed to the first officer who entered the house. Fields

said: “I stabbed her, and I’m into it big time this time.” Pet. App. 78a. Fields also said,

“I just did it. Kill me. I’m going to prison for the rest of my life.” Id. Then, after a

second officer arrived, Fields said, “Kill me. Shoot me. I’m into it deep. I killed her.”

Id. at 79a. “He was calm” while making this second confession. Id. After the officers

7 Fields cites an affidavit signed by Ms. Hall in which she characterized the experiment as having

“helped prove that Mr. Fields could have committed the crime.” Pet. 10 (quoting Juror 55 Aff., R.33-1,

PageID#8928). The affidavit was drafted by someone employed in Fields’s counsel’s office. PCR, R.893, PageID#13526–27. Ms. Hall’s testimony made clear, however, that she did not view the experiment

as showing that he did commit the crime. There was no dispute that Fields entered Ms. Horton’s home;

how he did so was not critical.

arrested Fields, he was taken to a local hospital. Id. There, Fields told the EMT examining him that “if [the EMT] had killed some lady that [he] would have blood on

[him] as well.”8 Id.

Fields implies that his girlfriend Minnie Burton murdered Ms. Horton. Pet. 8–

10. However, Ms. Burton testified at trial about what happened that night, including

about Fields’s erratic and violent behavior, and she was subject to cross-examination

by Fields’s attorney. Trial Vol. 18, R.30-18, PageID#6670–792; Trial Vol. 19, R.30-19,

PageID#6797–809. She specifically denied murdering Ms. Horton and denied admitting to doing so. Trial Vol. 18, R.30-18, PageID#6723–24, 6730, 6787–88. And Ms.

Burton had an alibi for much of the evening in question. Trial Vol. 17, R.30-17,

PageID#6572–73, 6582–83; Trial Vol. 18, R.30-18, PageID#6633, 6639, 6641; Trial

Vol. 19, R.30-19, PageID#6815, 6818–19; Trial Vol. 20, R.30-20, PageID#6976–77,

6995, 7001. She also testified to being afraid of Fields that night, Trial Vol. 18, R.3018, PageID#6685, 6699, because he had thrown a knife in her presence and “reached”

another knife toward her, id. at PageID#6686, 6692, 6712–13.

Fields also points out that none of Ms. Horton’s blood was found on him. Pet.

4. But the medical examiner testified that blood transfer “is not inevitable” even with

8 Fields minimizes his third confession because the EMT did not report it to law enforcement until a

year later. Pet. 5 n.2. In fact, however, one of the officers with Fields at the hospital testified that he

overheard the statement, and the EMT “came out [of the exam room] and said, ‘Did you hear that?’”

to the officer. Trial Vol. 15, R.30-15, PageID#6206; see also id. at PageID#6164.

such a gruesome crime.9 Trial Vol. 21, R.30-21, PageID#7096. He explained that depending on “the relative position of the person wielding the offending instrument and

the victim . . . it’s possible that . . . minimal or no blood [was] transferred from the

victim to [the offender].” Trial Vol. 20, R.30-20, PageID#7056. Finally, to the extent

Fields suggests the absence of Ms. Horton’s blood on him undermines his confession,

Pet. 5 n.2, he is wrong. Whether or not Fields actually had her blood on him, he confessed to having killed her. In any event, the lower courts found that Fields confessed

three times. See, e.g., Pet. App. 8a. Any dispute Fields has with those findings counsels against certiorari. See Sup. Ct. R. 10 (stating that “[a] petition for a writ of certiorari is rarely granted when the asserted error consists of erroneous factual findings

or the misapplication of a properly stated rule of law”).

All in all, the evidence of Fields’s guilt was substantial. He was found standing

near Ms. Horton’s dead body, and he promptly confessed three times to murdering

her. And the jury experiment, which concerned only how Fields entered the home,

could not have been essential to the jury’s finding of guilt because Fields was found

in Ms. Horton’s bedroom with her body. Fields’s characterization that the jury experiment “went to the central issue” is counterfactual. Pet. 25. For these reasons, Fields

9 The lab found that Fields’s “t-shirt did contain human blood on which no enzyme activity was found.

In other words, [the lab technician] attempted to determine the enzyme type; but, for whatever reason

unknown to [the lab technician], [he] could not type it.” Trial Vol. 16, R.30-16, PageID#6423; see also

id. at PageID#6330.

has not shown that any error as to the jury experiment had a “substantial and injurious effect or influence” on the jury’s verdict. See Brecht, 507 U.S. at 637 (citation

omitted).

CONCLUSION

The Court should deny the petition for a writ of certiorari.

Respectfully submitted,

s/ Matthew F. Kuhn