Petition — Rushen v. Spain
Supreme Court brief1983
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In the Supreme Copit®*"=5°"“s
OF THE
United States
OctToBEer TERM, 1982
Rutu Rusuey, Director, California Department of
Corrections; Jess Marquez, Superintendent,
California Medical Facility,
Vacaville, California,
Petitioners,
Vs.
JoHNNY SPaIN,
Respondent.
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JoHN K. Van DE Kamp
Attorney General
WiuraM D. Stern
Assistant Attorney General
Rona.p E. NIver
COUNSEL OF RECORD
Deputy Attorney General
6000 State Building
San Francisco, CA 94102
Telephone: (415) 557-2653
Attorneys for Petitioners
QUESTION PRESENTED
Whether the ex parte communication
between a juror and the trial court
about a matter unrelated to any fact in
issue in respondent's state trial
requires reversal without a showing of
prejudice?
TABLE OF CONTENT
OPINIONS BELOW
JURISDICTION
CONSTITUTIONAL PROVISIONS INVOLVED
STATEMENT OF THE CASE
STATEMENT OF FACTS
REASONS FOR GRANTING THE WRIT
ARGUMENT
THE EX PARTE COMMUNICATION
BETWEEN JUDGE AND JUROR DID
NOT PREJUDICE RESPONDENT AND
THEREFORE WAS HARMLESS BEYOND
A REASONABLE DOUBT.
CONCLUSION
18
21
56
ii.
TABLE OF AUTHORITIES
Bacino v. United States
316 F.2d 11 (10th Cir. 1963)
Badger v. Cardwell
587 F.2¢ 968 (9th Cir. 1978)
Chapman v. California
386 U.S. 18 (1967)
Coleman v. Alabama
(1970) 339 U.S. l
Dennis v. United States
339 U.S. 162 (1950)
Engle v. Isaac
456 U.S. 107 (1983)
Faretta v. California
422 U.S. 806 (1979)
Gideon v. Wainwright
372 U.S. 335 (1963)
Gilbert v. California
388 U.S. 263 (1967)
Henderson v. United States
419 F.2d 1277 (Sth Cir. 1970)
Holmes v. United States
(4th Cir. 1960) 284 F.2d 716
Mata v. Sumner
6l1l P.2d 754 (9th Cir. 1979)
Mata v. Sumner
649 F.2d 713 (9th Cir. 1981)
Page
32
30
22
32
47
52
30
33
33
32
38
52
52
1ii.
TABLE OF AUTHORITIES CONTINUED
Page
Moore yv. Illinois
(1978) 434 U.S. 220 33
Morris v. Slappy
m2 .
51 U.S.L.W. 4399 (1983) 55
Parker v. Gladden
385 U.S. 363 (1966) 37
Remmer v. United States
347 U.S. 227 (1954) 47
Rice v. United States
(8th Cir. 1966) 356 F.2d 709 38
Rogers v. United States
422 U.S. 35 (1975) 32
Rose v. Lundy
455 u.S. 509 (1982) 52
Schneckloth v. Bustamonte
412 U.S. 218 (1973) 52
Shields v. United States
273 U.S. 583 (1927) 38
Smith v. Phillips
455 U.S. 209 (1982) 45
Stone v. Powell
428 U.S. 465 (1976) 52
Sumner v. Mata
449 U.S. 538 (1981) 52
Sumner v. Mata
455 U.S. 591 (1982) 23
lV.
:
:
TABLE OF AUTHORITIES CONTINUED
Page
Turner v. Louvisian
379 U.S. 466 (1965) 37
United States v. Arr
451 F.2d 487 (4 - 1972) 32
qd Cir. 1978) 31
United States v. Burke
496 F.2d 373 (5th Cir. 1974) 40
United States v. Cassasa
588 F.2d 282 (9th Cir. 1973) 31
United States v. Doe
513 F.2d 709 (lst Cir. 1975) 31
United States v. Glick
463 F.2d 491 (2d Cir. 1972) 38
United States v
- Larki
417 P.2d 617 (lst Cir. 1963) 32
United States v. Marken
457 F.2d 186 (9th Cir. 1972) 37s on
United States v. McCoy
429 P.2d 739 (D.C. Cir. 1970) 30
United States v. Morrison
449 U.S. 361 (1981) 32
United States v. Nef
475 P.2d 861 (3d Cc
er. 1973) 31, 32
TABLE OF AUTHORITIES CONTINUED
United States v. Parker
549 F.2d $998 (Sth Cir. 1977)
United States v. Reynolds
489 F.2d i (6th Cir. 1973)
United States v. Rodriguez
545 F.2d 829 (2d Cir. 1976)
United States v. Taylor
562 F.2d 1345 (2d Cir.)
cert. denied, 432 U.S. 909 (1977)
United States v. Treatman
§24 F.2d 320 (8th Cir. 1975)
United States v. Wade
388 U.S. 218 (1976)
Wade v. Jones
192 F.Supp. 333 (W.D. Ky. 1961)
Wainwright v. Sykes
433 U.S. 72 (1977)
STATUTES
28 U.S.C. § 2254(d)
Fed. Rules of Evid. Rules 606(b)
California Evidence Code § 1150
Page
31
31
31
30
37
33
45
52
No.
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IN THE SUPREME COURT
OF THE
UNITED STATES
OCTOBER TERM, 1982
RUTH RUSHEN, Director, California
Department of Corrections; JESS MARQUEZ,
Superintendent, California Medical
Facility, Vacaville, California,
Petitioners,
Vv.
JOHNNY SPAIN,
Respondent.
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
The petitioner respectfully prays
that a writ of certiorari issue to
review the judgment and opinion of the
United States Court of Appeals for the
Ninth Circuit entered in this proceeding
on January 24, 1983.
2.
OPINIONS BELOW
The opinion of the Court of Appeals
is unreported. A copy of the opinion is
attached to this petition as Appendix A.
The opinion of the District Court for the
Northern District of California is
reported at 543 F.Supp. 757. A copy of
the opinion is attached to this petition
as Appendix B.
JURISDICTION
The judament of the Court of Appeals
for the Ninth Circuit was entered on
January 24, 1983. Rehearing was denied
On March 17, 1983. This petition for
writ of certiorari was filed within 90
Gays of the latter date. 28 U.S.C. sec-
tion 2102(c); Supreme Court Rule 20.2,
29.4. This Court's jurisdiction is
invoked under 28 U.S.C section 1254(1).
3.
CONSTITUTIONAL PROVISIONS INVOLVED
United States Constitution, Amend-
ment VI, provides in part:
"In all criminal prosecu-
tions, the accused shall enjoy
the right ... to have the
assistance of counsel for his
defense."
Amendment XIV, section l, provides
in part:
"{NJor shall any State deprive
any person of life, liberty, or
property, without due process
of law. *. - ."
4.
STATEMENT OF THE CASE
A. State Proceedings:
On October 1, 1971, the Marin County
Grand Jury filed an indictment charging
petitioner-appellee Johnny Spain with
five counts of murder, in violation of
California Penal Code section 187; one
count of conspiracy (§ 182) to escape
(§ 4530(a)), to possess a firearm
(§ 4574), and to kidnap (§ 207); and one
count of assault with a deadly weapon by
a life prisoner upon a non-inmate
(§ 4500) (sct 1-8).2/ Six other persons
(Stephen M. Bingham, David Johnson, Hugo
A. Pinell, Fleeta Drumgo, Luis N.
Talamantez, and Willie Tate) were charged
with these and other offenses in the
indictment.
1. "SCT" designates the Clerk's
Trancript of the proceedings in state
court.
uy
During the next three and one-half
years, the six defendants+/ filed nearly
200 written motions. Trial finally
began on March 25, 1975 (SCT 2721). On
August 12, 1976, the 226th day of trial,
after 24 days of deliberation, the jury
found respondent guilty of two counts of
murder, and of conspiracy to escape. He
was found not guilty on all other counts
(SCT 5300-5306).
+
On October l, L976, respondent's
motion for a new trial was denied and he
was sentenced to state prison for life
(SCT 5505-5506; 5507-5508).
On July 24, 1980, the California
Court of Appeal, First Appellate
District, affirmed the judgments of con-
viction of respondent and two ether con-
victed defendants (Pinell and Jobnson) in
People vy. Spain, Pinell, and Johnson,
Ze Bingham was never apprehended.
6.
No. 1/Crim. 16126, in the files of that
court (CR 1) .2/ The California Supreme
Court denied a hearing on October 15, 1980
(CR 1; Exh. B).
B. Federal Proceedings:
Respondent filed for petition for
writ of habeas corpus in federal district
court on June 29, 1981 in Spain v. Rushen,
C-81-2735 TEH. After ordering the filing
of a response, and holding oral argument,
the district court dismissed the petition
On November 24, 1981, for failure to
exhaust state remedies as to the second
(shackling) issve (CR 11:10).
On December 31. 1981, after exhaust-
ing state remedies, respondent filed a
3. "CR" refers to the District Court
Clerk's Record, followed by the docket
number and page number. "CR 1" designates
respondent's petition for writ of habeas
corpus in federal district court. A copy
of the above-referenced opinion is
attached to this petition as Appendix C.
Te
second petition for writ of habeas corpus
(CR 1). On January 6, 1982, an order to
show cause was issued (CT 3).
Petitioners filed a return to the order
to show cause on February 1, 1982 (CT 5).
On June 29, 1982, the district court
granted the petition for writ of habeas
corpus, ordering the State of California
to retry respondent within 90 days or
release him from custody with respect to
the convictions at issue (CT 11-12).
Petitioners filed a notice of appeal
on July 2, 1982 (CR 13).
On January 24, 1983, the Court of
Appeals for the Ninth Circuit affirmed
the order of the district court in a
brief memorandum opinion. On March 1l7,
1983, the Court of Appeals denied a peti-
tion for rehearing and rejected the
suggestion for rehearing en banc.
Appendix D.
8.
STATEMENT OF FACTS
The opinion of the California Court
of Appeal adequately summarizes the facts
of the offenses. We set forth the court
of appeal's summary:
"Johnny Larry Spain was
found guilty of the first
degree murders (Pen. Code, §
187) of two of the three cor-
rectional officers who were
killed, and conspiracy to
escape by force or violence
(Pen. Code, §§ 182, 4530, subd.
(a)). There was no substantial
evidence that Spain personally
committed the murders; instead,
the evidence pointed to George
Jackson as the killer. Spain's
guilt of the murders was the
probable consequence of his and
Jackson's conspiracy to escape.
9.
His acquittals of the murders
of the third correctional offi-
cer and of the prisoners were
consistent with this theory,
the evidence indicating that it
was someone other than Spain or
Jackson who killed the third
officer and the prisoners.
"Because of the manner in
which the indictment was
framed, 4/ it was necessary
4. "'The Grand Jury of the
County of Marin .. . accuses
Stephen Mitchell Bingham, ...
John L. Spain [et al.J], of a
felony, to wit: conspiracy
-— + in that (a) Stephen
Mitchell Bingham and George
Lester Jackson, now deceased,
did prior to, and continuing on
Or about August 21, 1971 .. .
conspire ... together and
with other persons whose. names
are unknown to the Grand Jury
to ... commit felonies, to
wits (1) The escape by force
Or violence ... of George
Lester Jackson and others ...
fetc. (describing other
(Footnote 4 continued on next page)
19.
(and the trial court so ruled
and instructed the jury) for
the prosecution to prove that
before August 21, there was a
conspiracy between Jackson and
one Stephen Bingham to effect
Jackson's escape and that on
August 21, Spain joined that
conspiracy. In other words, if
there were no conspiracy for
Spain to join, he was not
guilty of conspiracy and,
therefore, not legally account-
able for the murders.
(Footnote 4 continued)
felonies)]. (6) On or about
August él, conspiracy of
Stephen Mitchell Bingham and
George Lester Jackson and other
persons ... ang Gig «.e «
conspire “= Ge with Stephen
Mitchell Bingham and George
Lester Jackson, and among them-
selves, for the purpose of
- e« « cCommitfing]) the felonies
above described... ‘'"
"The evidence that Jackson
had planned, and with the
assistance of a person or per-
sons outside the prison pre-
pared to escape, was clear.
There was evidence that Spain
was privy to these plans and
assisted these preparations.
But as to the central fact
necessary to be proven, that
Jackson and Bingham conspired,
the evidence, while sufficient,
is less compelling.
"The prison authorities
were aware long before August
21 by virtue of a letter in
Jackson's hand which had fallen
into theirs, that he had
encouraged others (not includ-
ing Bingham) to smuggle weapons
into the prison and to him and
12.
otherwise to assist him to
escape. After Jackson's death,
another letter in his hand was
found in the Adjustment Center;
some references in the letter
suggest it was written in or
about early August 1971. The
letter reveals that Jackson and
‘the party' were planning an
imminent escape and a variety
of violent escapades, that some
prisoners had ‘thrown water' on
the plans and, most signifi-
cantly, that Jackson was
already stockpiling weapons and
5/
had a gun.=
5. The letter stated: "They know
that so it's a question of them facing
the pigs guns they think or facing mine.
They're trying for a shakedown so that
T°ll lose mine. ....”"
14.
that they carried no arms,
closely searched before Jackson
and Bingham's visit. Neverthe-
less, Jackson emerged from the
visit with a bullet clip in his
hair (actually an '‘Afro' wig)
and an automatic pistol under-
neath it. The prosecution's
theory was that Bingham brought
Jackson the gun in the tape
recorder.
"The security arrangements
relative to the interview were
such that Jackson could have
removed an object from the tape
recorder without Bingham's
active cooperation, but it is
difficult to see how that act
could have been performed with-
out Bingham's knowledge. That
knowledge would not be suffi-
Cient to make Bingham a party
15.
to a conspiracy but it would be
sufficient to explain his dis-
appearance upon leaving the
prison.
"When Jackson returned to
the Adjustment center from the
interview, the bullet clip was
detected; whereupon, he remcved
the gun from under his wig and
forced one of the four correc-
tional officers, who were pre-
sent to open the cells of other
prisoners, many of whom emerged
and some of whom--including,
admittedly, Spain and Pinell,
and, as shown by sufficient
evidence, Johnson--played an
active role in binding the
officers and placing them in
cells where they were
assaulted. During the turmoil,
16.
two other officers were
admitted to the Adjustment
Center and subjected to similar
treatment. An officer accom-
panying the last to be admitted
raised an alarm. Jackson and
Spain then fled from the
Adjustment Center. Jackson was
shot and died instantly. Spain
was located in some shrubbery
in which he had taken cover.
Order was restored in the
Adjustment Center. One officer
had bled to death from a neck
wound; two had been shot to
death; three others had their
throats cut but survived; two
prisoners died from similar
wounds. A number of knives and
improvised knives were found in
various locations. No firearms
were discovered except
Jackson's pistol.
"Spain is a black and was
in August 1971 a member of the
Black Panther Party. Jackson
was also a member of the party,
and it is reasonably probable
that ‘the party’ of which he
spoke in the letter which
referred to his gun and his
plan to escape was the Black
Panther Party.
"The district attorney
argued to the jury that the
Black Panther Party had helped
to smuggle weapons or ammuni-
tion to Jackson and implied
that Spain's party membership
was evidence that he, too, was
‘involved in' the escape plan
and ‘working with' Jackson."
18.
REASONS FOR GRANTING THE WRIT
Twelve years ago six persons died
during an attempted escape at San
Quentin Penitentiary. Respondent was
convicted for the murders of two of
those persons. During the trial one of
the jurors approached the trial judge
with the information that a4 person
mentioned in passing by a defense wit-
ness might have killed a friend. The
judge assured the juror that the person
mentioned would not testify, as indeed
he did not. After the trial the court
held a hearing with all defendants and
counsel present. The court ruled that
the information possessed by the juror
did not affect her ability to be fair
and impartial. The state appellate
courts concluded that the trial court's
ruling was correct.
Eleven years after the murders, a
district court rejected the conclusion
19.
of the state courts, holding that the
absence of an attorney when the juror
approached the trial court required the
granting of a writ of habeas corpus
without a showing of prejudice. The
Ninth Circuit Court of Appeals affirmed,
ruling that the absence of a record made
it impossible to determine the impact of
the error.
Petitioner submits that the rulings
of the lower federal courts have deviated
from this Court's opinion in Smith v.
Phillips, 455 U.S. 209 (1982). As in
Smith, the trial court determined that
the juroc was fair and impartial. As in
Smith, that factual finding by the state
court, after a full and fair hearing,
should have ended the matter.
This case is appropriate for this
Court's plenary review because the
disregard by this Circuit of federal-
State relations, as defined by this
20.
Court, is not an isolated instance. The
refusal of the Ninth Circuit to accord
due deference to factual findings by
the state courts, together with impor-
tance of this case in terms of its age
and the number of victims, makes a grant
of certiorari by this Court imperative.
21.
ARGUMENT
THE EX PARTE COMMUNICATION
BETWEEN JUDGE AND JUROR DID
NOT PREJUDICE RESPONDENT AND
THEREFORE WAS HARMLESS BEYOND
A REASONABLE DCUBT.
The district court held that a com-
munication between the trial court and a
jury during the course of the trial
violated the right of the respondent to
be present during the proceedings, and
his right to be represented by an attor-
ney. The court further held that the
deprivation of the right to an attorney
during a critical stage of the proceed-
ings required uutomatic reversal; but
even if it did not, the record did not
establish that the error was harmless
beyond a reasonable doubt.
The holding of the Ninth Circuit
Court of Appeals is contained in the
following paragraph:
"The state court made no
contemporary record of the
22.
ex-parte communication between
judge and juror or even of the
fact that it took place. In
this case the district court
correctly concluded that the
condition of the record made it
impossible to apply intelli-
gently the harmless error test.
Chapman v. California, 386 U.S.
18, 22 (1967). The court's
explanation of its decision to
Grant the habeas writ referred
to the inadequacy of the
State's record and the need for
extensive speculation in deter-
mining the extent of the error.
See Sumner v. Mata, 449 U.S. at
551. The harmless effect of
conceded constitutional error
Cannot be established by specu-
lation from a silent record.”
(Slip Op. at 3.)
aoe
Petitioner contends that the doc-
trine of harmless error was applicable
to the identified error and that the
record in the state courts, to which the
district court erroneously failed “to
accord a presumption of correctness
(28 U.S.C. § 2254(d); Sumner v. Mata,
455 U.S. 591 [1982]), established that
the error was harmless beyond doubt.
Before delineating these arguments at
length, petitioner reviews the operative
facts.
A. The Facts
At a hearing on a motion for a new
trial held on September 30, 1976, Juror
Patricia Fagan testified that she had
been born and raised in Los Angeles,
leaving that area to come to Concord in
1968 (SRT 23946-23951).2’ While growing
Te *“SRT" refers to the Reporter's
Transcript of the proceedings in state
court.
24.
up in Los Angeles, Fagan knew Carolyn
Olson, whom she termed a "good friend but
not a close one" (SRT 23949). Pagan
Stated that, although she cared for
Olson's little girl while Olson attended
U.C.L.A., they did not see each other
socially as adults (SRT 23948-23949).
In 1968, while in Concord, Fagan
learned that her childhood friend had
been slain (SRT 23951-23952). A cousin
subsequently advised her that Olson had
been killed by members of the Black
Panther Party (SRT 23954).
During voir dire of potential jurors
On June 12, 1975, Fagan was asked: "i.
How about crimes of violence? Any know-
ledge of that at all? A. No. a) .lCU GN
Witness, victim, otherwise? A. No."
(Ct.App. Opinion at 9.) Later appellant
Spain's attorney queried: "Q. Have you
heard of the Black Panther Party? A.
Yes. [9] Do you associate the Black
25.
Panther Party with any form of violence
in your own mind? A. No." Ct.App.
Opinion at 9.
Louis Albert Tackwood testified in
behalf of petitioner Spain in April of
1976 (SRT 18224-18792). Several times he
Stated that Elmer "Geronimo" Pratt was a
police informant who was assigned to help
George Jackson to escape from custody on
August 23, 1971. Tackwood claimed that
Pratt, the members of his “hit squad,"
and Jackson would have been assassinated
by police (SRT 18334-18337, 18352).
Pratt was later identified as a.leader in
the Los Angeles branch of the Black
Panther Party (SRT 18305).
During the course of his cross-
examination, the prosecutor asked
Tackwood whether he was aware that Pratt
had been “wanted for the robbery and
murder of a woman in Santa Monica" (SRT
18640). As a result of the question,
26.
juror Fagan went to the chambers of the
trial judge at the close of that day's
proceedings to inform him that she
believed that it was her friend whom
Pratt had killed (SRT 23957). She had
never before heard Pratt's name (SRT
23954), but since Carolyn Olson had been
killed in Santa Monica by a_ Black’
Panther, she thought that it might have
been more than a coincidence (SRT 23956-
23957). Fagan told the judge that she
might cry if the death of her friend was
explored further in court (SRT 5481; SRT
23977). She later explained that she
feared that she might break down in
court because she was "a very emotional
person" (SRT 23977). The judge advised
her “that I do not consider that a
matter of significance, and told her that
she should simply forget about it. I
didn't think the matter would be gone
into at all" (SRT 23919).
~
27.
That evening Patricia Fagan learned
from her mother that Elmer Pratt had been
convicted of murdering Carolyn Olson (SRT
23972). She did not otherwise discuss
the trial with her mother, confining her
questions to the identity of the slayer
of her childhood friend (SRT 23973). The
following morning Fagan informed the
judge that in fact Pratt had killed her
friend. She again warned that she might
lose composure if the death of her friend
was the subject of testimony at trial
(SRT 23820; SCT 5481). When the judge
reassured her that Pratt probably would
not be discussed further, Fagan told the
judge “that the information regarding
Pratt and my friend would have no adverse
effect on me, and played no part in my
evaluation of this case” (SCT 5481-5482).
She did inform other jurors that Pratt
had killed a friend (SRT 23972), “but no
comments derogatory of the Black Panther
28.
Party were made by me or anyone else in
my presence" (SCT 5482).
Fagan later averred that her state-
ments during voir dire were truthful.
"I have not been a victim of, or witness
to such crimes [of violence], and at the
time I answered the question, the death
of my friend in Santa Monica was not in
my mind” (SCT 5482).
With regard to the Black Panther
Party, her knowledge "was primarily
limited to a breakfast program for
school children conducted by that orga-
nization in the Los Angeles. area.
Therefore, I associate the Black Panther
Party with worthwhile activities”
(SCT 5482).
The trial court denied the motion
for a new trial (SRT 24014). The court
ruled that Pratt's conviction for the
murder of Fagan's friend lacked eviden-
tiary significance because Pratt did not
aa
29.
testify at trial (SRT 23985). The court
also found that Fagan did not inten-
tionally conceal the death of her friend
during voir dire (SRT 24013).
B. The Error and the Applicability of
the Harmless Error Doctrine.
Taken together, the opinions of the
district court and Court of Appeals hold:
(1) the ex parte communication between
judge and juror violated respondent's
right to be present with counsel; (2)
there was no adequate record of the con-
tents of those communications; (3) there-
fore, the error was reversible without an
attempt by the courts to assess preju-
dice. Petitioner submits that the record
was adequate and established beyond doubt
that the error was harmless. Chapman v.
California, 386 U.S. 18, 24 (1967).
The district court found that the ex
parte communication between judge and
juror violated respondent's right to be
30.
present with counsel. Dist. Ct. Opinion
11-16. Petitioner always has acknow-
ledged that the better practice would
have been for the trial court to have
held a hearing immediately, with respon-
dent and counsel present, when the juror
approached him. See, e.g., Faretta v.
California, saa: aie 806, 819 n.15
(1975) (right to be present); Badger v.
Cardwell, 587 F.2d 968, 970 (9th Cir.
1978) (same); United States v. McCoy,
429 ¥.24 739, 742 (D.C. Cis. 1976)
(right to counsel). The district court
correctly held that the violation of the
right to be present is to be judged
under the harmless error standard.
Dist. Ct. Opinion at n.9; United States
v. Taylor, 562 F.2d 1345, 1365 (2d Cir.),
cert. denied, 432 U.S. 909 (1977).
However, the district court also
held that the deprivation of the
right to counsel “dictates the automatic
31.
reversal of Spain's conviction." Dist.
Ct. Opinion at 17. Petitioner emphati-
cally disagrees.
The district court's ruling totally
disregarded decisional law. Courts have
held to be harmless the absence of the
accused or his attorney, or both, during
a communication between the trial court
and a juror. See United States v.
Cassasa, 588 F.2d 282, 285 (9th Cir.
1973); United States v. Boscia, 573 F.2d
827, 831-832 (3rd Cir. 1978); United
States v. Parker, 549 F.2d 998, 1000
(Sth Cir. 1977); United States Vv.
Rodriguez, 545 F.2d 829 (2d Cir. 1976);
United States v. Jones, 542 F.2d 186, 213
(4th Cir. 1976); United States v. Jones,
542 F.2d 196, 213 (4th Cir. 1976); United
States v. Doe, 513 F.2d 709, 711
(lst Cir. 1975); United States Vv.
Reynolds, 489 F.2d 4, 7-8 (6th Cir.
1973); United States v. Neff, 475 F.2d
32.
861 (3d Cir. 1973); United States v.
Arrigada, 451 F.2d 487, 489 (4th Cir.
1971); Henderson v. United States, 419
F.2d 1277 (Sth Cir. 1970); United States
v. Larkin, 417 F.2d 617 (lst Cir. 1963);
Bacino v. United States, 316 F.2d ll,
13-14 (10th Cir. 1963); see also Rogers
vy. United States, 422 U.S. 35, 40 (1975)
(dictum).
This Court has recognized that cer-
tain violations of the right to counsel
may be disregarded as harmless error.
United States v. Morrison, 449 U.S. 361,
365 (1981). For example, Coleman v.
Alabama (1970) 339 U.S. 1, held that an
accused had the right to an attorney at
a preliminary hearing, but recognized
that error could be harmless if evidence
developed at the hearing was not used at
trial. Id. at 10-11 & n.5. © A post-
indictment lineup is a critical stage
requiring the presence of counsel.
33.
United States v. Wade (1967) 388 U.S.
218; Gilbert v. California (1967) 388
U.S. 263. Yet denial of counsel can be
harmless if the state can prove convinc-
ingly that the in-court identification
was not the product of the lineup (United
States v. Wade, supra, at 240) and if
evidence of the lineup itself is excluded
(Gilbert Vv. California, supra, at
272-74). Indeed, even if such evidence
is introduced, it can be harmless. Id.;
see also Moore v. Illinois 1978) 434
U.S. 220, 232.
Thus, deprivation of counsel can be
harmless if the resulting taint infected
only one stage of the proceedings rather
than the entire prosecution as in Gideon
v. Wainwright (1963) 372 U.S. 335. The
harmless error doctrine is then available
to determine whether the localized taint
had affected the jury's deliberations and
34.
decision. As this Court said in
Morrison:
"Our approach has thus
been to identify and then
neutralize the taint by tailor-
ing relief appropriate in the
Circumstances to assure the
defendant the effective assis-
tance of counsel and a fair
trial. The premise of our
prior cases is that the consti-
tutional infringement iden-
tified has had or threatens
some adverse effect upon the
effectiveness of counsel's rep-
resentation or has _ produced
some other prejudice to the
defense. Absent such impact on
the criminal proceeding, how-
ever, there is no basis for
imposing a remedy in that pro-
ceeding, which can go forward
35.
with full recognition of the
defendant's right to counsel
and to a fair trial." 449 U.S.
at 365.
Applying this principle to the present
case, we submit that respondent is enti-
tled to no relief if it can be demonstra-
ted that the absence of counsel during
the communication between judge and juror
was harmless error. We submit that the
record of the state trial affirmatively
establishes that the error was harmless
beyond a reasonable doubt. Proof of the
total lack of prejudice suffered by
respondent comes from the sufficiency of
the hearing on the communication held
after the trial. The post-trial hearing
established what would have been proven
if the hearing had been held immediately:
(1) the information of which juror Fagan
was aware was irrelevant to any issue
developed during trial; (2) the juror was
36.
shown to be fair and impartial. We now
turn to a consideration of these issues.
C. Communications Between Judce and
Jury Did Not Prejudice Respondent.
The state court record establishes
beyond doubt that respondent was not
prejudiced by the communications between
the trial judge and the juror. The
issue of prejudice must be ap
'0
n"
O
Ay)
0
ey
@
QO.
from two different directions. First,
the content of the communication must be
assessed to determine whether it related
to some fact in controversy which arose
in the trial. See, e@.c., Rogers vy.
United States, supra, 422 U.S. at 40.
Second, the communication and the con-
tacts between judge and juror must be
evaluated for their relevance to the
question of the juror's fitness to
serve. Petitioner submits that the
information possessed by the juror was
irrelevant to any issue developed at
37.
trial and had no impact on the juror's
ability to be fair and impartial.
1. The Contents of the Statement
We believe that Parker v. Gladden
(1966) 385 U.S. 363, identifies the
interests of the accused which are sought
to be protected by the rule against ex
arte communications with jurors.
Quoting from Turner v. Louisiana (1965)
379 U.S. 466, 472-73, this Court stated
that "the ‘evidence developed’ against a
defendant shall come from the witness
stand in a public courtroom where there
is full judicial protection of the
defendant's right of confrontation, of
cross-examination, and of counsel.” 385
U.S. at 364. Thus, the danger of ex
parte communications is that the juror
may receive incorrect information about
either the facts or the law of the case
(cf. United States v. Treatman [8th Cir.
1975] 524 F.2d 320, 323; United States v.
38.
Marken [9th Cir. 1972) 457 F.2d 186,
188; Holmes v. United States [4th Cir.
1960] 284 F.2d 716, 718-19, or may be
influenced by the attitude or instruc-
tions of the court. Cf£. Shields vy.
United States (1927) 273 U.S. 583,
587-88; United States v. Glick (2d Cir.
1972) 463 F.2d 491, 494; Rice v. United
States (8th Cir. 1966) 356 F.2d 709,
715-17. It is to prevent such misinfor-
Mation or undue influence that the
rights to counsel and confrontation are
applicable to exchanges between judges
and juries. See, e.g., United States v.
Taylor, supra, 563 F.2d at 1365.
It follows, then, that the accused
has not been prejudiced by the imper-
missible communication if the record
Clearly demonstrates that the juror has
not received information pertinent to
the case and has not been influenced on
Pei
39.
the ultimate issue of guilt or inno-
cence.
The record in this case shows that
Fagan received no information from the
trial judge at all. Rather, it was she
who advised the judge what she remembered
about Geronimo Pratt. If she had
remained silent about the incident of her
friend's death, this issue never would
have arisen. Indeed, even if she had
used the irrelevant fact in deciding to
convict respondent, he would not be
entitled to relief. As he has repeatedly
pointed out, a verdict may not be
impeached with evidence of the mental
process of a juror. Cal. Evid. Code
§ 1150; Fed. Rules of Evid. Rule 606(b).
This issue has emerged only because
juror Fagan forthrightly advised the
trial judge that a name mentioned during
the proceedings evoked distant memozies.
40.
Her decision to come forth was commend-
able and cuts against any claim of pre-
judice on her part. Viewed in this
context, the issue of the ex parte com-
munication really is no issue at all.
Fagan learned nothing from the judge
which she did not previously know.
The record in this case thus conclu-
Sively demonstrates a total lack of pre-
judice to respondent. The subject of
the conversation between Fagan and the
trial court was unrelated to any fact in
controversy. C£. United States v.
Boscia, 573 F.2d 827, 831 (36 -©ae-
1978); United States v. Burke (5th Cir.
1974) 496 F.2d 373, 377. The fact that
Elmer Pratt murdered Carolyn Olson in
Santa Monica in 1968 was totally irrele-
vant to the prosecution of the crimes
committed in San Quentin on August 21,
1971. The murder committed by Pratt had
nothing to do with the introduction of a
4l.
gun into San Quentin by Stephen M.
Bingham. It had nothing to do with the
transfer of the weapon to George L.
Jackson. It had nothing to do with the
concealment of the weapon under a wig on
Jackson's head. It had nothing to do
with the introduction of the gun into the
Adjustment Center, to the amazement of
startled guards who were told by Jackson
that the "dragon had come."
Olson's death was not related to the
ensuing slaughter in the Adjustment
Center. Her death was not related to the
deaths of Paul Krasenes, Frank DeLeon,
Jere Graham, Ronald Kane, and Johnny
Lynn. Her death was not related to
Jackson's desperate bid for freedom and
subsequent death.
Pratt's murder of Olson did not
affect the defense of respondent; who
Claimed diminished capacity and "counter
conspiracy". Since Pratt was not called
42.
as a witness, his commission of a murder
in 1968 did not impeach his credibility.
Regarding his credibility, it is worth
noting that there was substantial evi-
dence adduced at trial that Pratt was an
Outlaw (SRT 18065, 18096, 18597, 18617,
18641).
Pratt's slaying of Olson had no
relevance to the credibility of
Tackwood. He was impeached by the self-
contradictory and incredible nature of
his testimony. References to Elmer
Pratt are a minuscule part of the fabric
woven by the fantastic quality of his
Claims at trial. Even if his testimony
had been believed, it would have made no
difference. Respondent's convictions of
murder and conspiracy are based on a
conspiracy between Jackson and Bingham.
There is no connection between Pratt and
Bingham in the record, and none was ever
asserted. No evidence even remotely
43.
suggested that Bingham was a state agent
who lured Jackson into the escape
attempt. At most, Fagan had second-hand
knowledge about a crime committed seven
years earlier by a shadowy figure who
Played no part in the offenses of which
appellee was convicted.
Finally, returning to a considera-
tion of the policies behind the prohibi-
tion of ex parte communications, we note
that the trial court gave no information
to Fagan regarding to the facts or the
law (cf&. United States v. Reynolds [6th
Cir. 1973] 489 F.2d 4, 7-8); nor did the
court attempt to influence the juror.
Rather, the court sought only to reassure
Fagan that the mention in court of the
name of a man who might have killed her
childhood friend was no cause for con-
cern. Cf. United States v. Neff (3d Cir.
1973) 475 F.2d 861.
44. =
We therefore submit that the contact
between judge and juror was not of the
species which the prohibition against ex
parte communications seeks to prevent.
Juror Pagan came away from her meeting
with the trial court with no new informa-
tion or bias. Beyond doubt the communi-
cation did not prejudice respondent.
2. Juror Bias.
The courts below held that the com-
munication between the judge and j
raised a question regarding the latter's
fitness to serve, a question which was
not resolved during the trial. Peti-
tioner submits that the question of
Fagan's impartiality was fully and
fairly litigated in the state courts.
She stated during voir dire that she
could be fair and unbiased. During the
motion for rew trial she testified that
she was not biased toward petitioner or
the Black Panthers. Both the trial
45.
court and court of appeal determined,
after a full and fair hearing with the
revelation of all pertinent facts, that
Fagan was a fair and impartial juror. We
believe that the state courts' finding is
entitled to a presumption of correctness
which was not rebutted by respondent. 28
U.S.C. § 2254(d); Wade v. Jones, 192
F.Supp. 333 (W.D. Ky. 1961). The error
in the opinions of the lower courts is in
their premise that a record should have
been made at the time of the ex parte
communication and that any record made
afterward was inadequate. Petitioner
contends that the post-trial record was
adequate to establish juror Fagan's fit-
ness to serve.
Smith v. Phillips, 455 U.S. 209
(1982), provides persuasive support for
our position. In Smith, one of the
jurors during trial submitted an applica-
tion to the district attorney's office
=
46.
for employment as an investigator. The
prosecuting attorneys were advised of
this application during the trial but
did not disclose this information to the
trial court or defense counsel. When
the matter was brought to light after
the verdicts, the trial court held a
hearing at which the juror testified.
The trial court found that the juror had
not reached a premature conclusion about
the defendant's guilt or was otherwis2
prejudiced against him. 455 u.S. at
213-214.
This Court upheld the convictions,
holding that the hearing was
legally adequate to determine the
juror's fitness to serve. "Due process
means a jury capable and willing to
decide the case solely on the evidence
before it, and a trial judge ‘ever watch-
ful to prevent prejudicial occurrences
and to determine the effect of such
47.
occurrences when they happen. Such
determinations may properly be made at a
hearing like that ... held in this
case." Id. at 217. This Court noted
that the determination of the juror's
bias vel non will frequently turn upon
the testimony of the juror in question,
but nevertheless held that it was
admissible. Quoting from Dennis v.
United States, 339 U.S. 162, 171 (1950),
this Court noted that "“'[o]ne may not
know or altogether understand the impon-
derables which cause one to think what he
thinks, but surely one who is trying to
live up to the sanctity of his oath is
well qualified to say whether he has an
unbiased mind in a certain matter.'* 455
U.S. at 217 n.7; sew also Remmer v.
United States, 347 U.S. 227, 230 (1954).
The defendant argued that, had the
prosecutors disclosed the application for
employment during the trial, the trial
48.
court could have replaced the juror with
an alternate. This Court rejected this
position: "This argument proves too
much. If the hearing and determination
to replace a juror during trial would
have adequately protected [the defen-
dant's) right to due process of law, and
would not have been rendered impossible
by necessary reliance on the juror's own
testimony, we see no reason why a post-
trial hearing and determination would be
any less protective or possible." 455
U.S. at 218 n.8.
In the present case, after a post-
trial hearing at which Fagan testified,
the trial court determined that there
was no juror bias which deprived appellee
of due process of law. Under Smith v.
Phillips, supra, the finding that
Fagan was not biased was a factual
Getermination which the district court
49.
should have accepted and this Court must
now accept.
The Ninth Circuit Court of Appeals
based its affirmance of the district
court's grant of habeas corpus upon the
fact that a hearing was not held
immediately after the relevations by the
juror to the judge. But this Court said
that it did not matter whether the
hearing was held during or after trial.
455 U.S. at 218 n.8. In Remmer v.
United States, supra, for example, the
FBI investigated during trial the
attempted bribery of a juror and sub-
mitted a report to the judge and prose-
cutor without disclosure to defense
counsel. Rather than require a new
trial, this Court instructed the trial
judge to “determine the circumstances,
the impact thereof upon the juror, and
whether or not [they were] prejudiced,
in a hearing with all interested parties
50.
permitted to participate.” 347 U.S. at
230. Thus, a post-trial hearing can be
constitutionally adequate to reveal
whether a mid-trial irregularity is pre-
judicial.
C. The Importance of This Case.
It should be clear from all of the
above that respondent was accorded a fair
trial in California Superior Court. a
hearing established that the juror who
approached the judge during the trial had
received no ex parte information bearing
upon the issues raised at trial and was
able to discharge her duties with fair-
ness and impartiality. There remains
only the question of why this Court
should accept this case for plenary con-
sideration.
We are well aware that this Court,
which must devise rules for, and give
legal guidance to, every judicial forum
in this land cannot accept a case for
Sl.
review simply because it was incorrectly
decided. But more, much more, is at
stake here. It is not merely that the
trial lasted 18 months and cost the
People of the State of California over
$1 million. Nor is it that the crimes
involved, which left five people dead,
occurred almost twelve years ago and may
be difficult to prove upon retrial.
Rather, this case is a singular example
of the failure, if not outright refusal,
of some federal courts to accept this
Court's leadership in the area of
federal-state relations.
This Court's decisions have articu-
lated a clear policy of protecting the
Constitutional rights of those charged
with crimes in state courts while
respecting the interest of the states in
the finality of their criminal trials
and minimizing friction between the
federal and state systems of justice.
ares
52.
See Schneckloth v. Bustamonte, 412 U.S.
218, 259 (1973) (Powell, J., concurring).
This balancing of interests is largely
maintained by requiring that the state's
fact-finding process be reliable. Tf
that process admits reliable evidence
and provides a method for the correction
or elimination of error, then judgments
produced by that process will not be
disturbed. See, e.g., Engle vy. Isaac,
456 U.S. 107 (1983); Rose v. Lundy, 455
U.S. 509 (1982); Smith v. Phillips, 455
U.S. 209 (1982); Wainwright v. Sykes,
433 U.S. 72 (1977); Stone v. Powell, 428
U.S. 465 (1976). The courts in the Ninth
Circuit do not seem to have comprehended
this policy. See, e.g., Sumner v. Mata,
455 u.S. 591 (1982), rev'g. Mata v.
Sumner, 649 F.2d 713 (9th Cir. 1981);
Sumner v. Mata 449 U.S. 539 (1981),
rev'g. Mata v. Sumner, 611 F.2d 754 (9th
Cir. 1979).
53.
This case cries out for the correc-
tive process which only this Court can
now provide. Once again, the courts of
the Ninth Circuit have ignored the
reliability of the fact-finding process
of California courts and the use of that
process in this case to determine the
fairness and impartiality of the juror.
Finally, we respectfully remind this
Court of its recent comments about the
ordeal imposed upon victims of crimes by
a subsequent trial:
"Of course, inconvenience and
embarrassment to witnesses can-
not justify failing to enforce
constitutional rights cf an
accused: when prejudicial
error is made that clearly
impairs a defendant's constitu-
tional rights, the burden of a
new trial must be borne by the
prosecution, the courts, and
54.
the witnesses; the Constitution
permits nothing less. But in
the administration of criminal
justice, courts may not ignore
the concerns of victims. Apart
from all other factors, such a
course would hardly encourage
victims to report violations to
the proper authorities; this is
especially so when the crime is
one calling for public testi-
mony about a humiliating and
degrading experience such as
was involved here. Precisely
what weight should be given to
the ordeal of reliving such an
experience for the third time
need not be decided now; but
that. factor is not to be
ignored by the courts. The
spectacle of repeated trials to
establish the truth about a
55.
single criminal episode inevit-
ably places burdens on the
system in terms of witnesses,
records, and fading memories,
to say nothing of misusing
judicial resources." Morris v.
aoe, - 8.8. .... g 34
U.S.L.W. 4399, 4403 (1983).
Is it fair to ask victims of violent
Crimes to testify again about events 12
years old when a full and fair hearing in
state court established the impartiality
of the first jury? We think not, and
respectfully request this Court to
reverse the decision of the Ninth Circuit
Court of Appeals.
*
ye
56.
CONCLUSION
For the foregoing reasons, we
respectfully submit that the petition for
writ of certiorari should be granted.
DATED: June 3, 1983
JOHN K. VAN DE KAMP,
Attorney General of the
State of California
WILLIAM D. STEIN
Assistant Attorney General
RONALD E. NIVER
Deputy Attorney General
Attorneys for Petitioner
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHNNY SPAIN,
No. 82-4358
Appellee,
D.C. No. Cv-81-4858
-
ve
RUTH RUSHEN,
Directcr,
California
)
)
)
)
)
)
)
)
) MEMORANDUM
Department of )
)
)
)
)
)
)
)
)
)
Corrections,
JESS MARQUEZ,
Superintendent,
California Medical
Facility,
Vacaville,
California,
Appellants.
Appeal from the United States
District Court for the Northern
District of California
Honorable Thelton E. Henderson,
District Judge, Presiding
Argued and submitted January 10, 1983
BEFORE: GOODWIN and SNEED, Circuit
Judges, and JAMESON, District
Judge*
California appeals the district
court's grant of Spain's petition for a
* The Honorable William J. Jameson,
Senior United States District Judge,
District of Montana, sitting by
designation.
x
ee
yo
writ of habeas corpus under 28 U.S.C,
§ 2254. We affirm.
Spain was one of six prison inmates
involved in a 1971 escape attempt appar-
ently planned by prisoner George Jackson,
Jackson, three corrections officers, and
two other prisoners were killed in the
attempt.
Spain and five other inmates were
trieec on charges including assault,
conspiracy and murder. During voir dire,
Gefense counsel asked lengthy questions
about prospective jurors' knowledce of
Crimes of violence and their perceptions
of the "Black Panther Party." Spain was
the only defendant who was a "Black
Panther."
Spain was convicted of conspiracy to
escape anc murder of two of the three
corrections officers. He was found not
guilty of assault and of other counts in
the indictment.
3.
Late in the year-long trial the
judge met twice in chambers with juror
Patricia Fagan. Facan first expressed
concerns about her emotiona] responses
if a defense witness gave testimony that
linked a Black Panther who was unrelated
to the trial to the murder of one of her
friends several years earlier in Santa
Monica. The trial judce did not inform
the parties or counsel about these con-
cerns of the juror Fagan, nor did the
trial juége tell counsel about a second
visit by the juror who admitted to the
judge that she had told some other
jurors about her frienc's ceath at the
hanés of a Black Panther. Counsel thus
had no opportunity at the time to ques-
tion Facan about bias, or to inguire
whether other jurors might have been
biased by Fagan's disclosures. The
trial judge made no record of his
conversations with Fegan.
4.
California concedes that the ex-
parte communication between the trial
judge and juror viclateé Spain's Sixth
and Fourteenth Amendment rights to pres-
ence ané assistance cf ccunsel
Cal stages of tne proceedings. But the
state contencs that the errors were
harmless beyond a reasonable doubt.
In habeas proceecing a Gistrict
court is to presume correct the findings
of fact of state courts. Sumner v. Mata,
U.S. _ , 102 §.Ct. 1303, 1306-7
(1982). The state court's findings must
be fairly supportec by the record.
Sumner v. Mata, 449 U.S. 539, 550 (1980).
In order to determine whether constitu-
tional error is harmless, its scope must
be readily identifiable on review.
Holloway v. Arkansas, 435 U.S. 475, 490
(1978).
The state court made no contemporary
recoré of the ex-parte communication
5.
between judge and juror or even cf the
fact that it took place. In this case
the district court correctly concluded
that the condition of the record made it
impossible to apply intelligently the
harmless error test. Chapman v.
California, 386 U.S. 18, 22 (1966). The
court's explanation of its decision to
Grant the habeas writ referres to the
inadequacy of the state's record and the
need for extensive speculation in deter-
mining the extent of the error. ge
Sumner, 449 U.S. at 551. The harmless
effect of conceded constitutional error
Cannot be established by speculation
from a silent record.
We need not reach Spain's second
point: that he was denied a fair trial
because He was shackled during all his
appearances in state court following his
indictment.
Affirmed.
APPENDIX B
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
JOENNY SPAIN Civil Action File No.
C 81-4858 TEH
vs.
JUDGMENT
RUTE RUSEEN et al.
This action came on for hearing
before the Court, Honorable Thelton E.
Henderson, United States District Judge,
presiding, and the issues having been
Guly heard and a decision having been
Guly rendered,
It is Ordered and Adjudged that the
petition for writ of habeas corpus is
granted.
Dated at P
, this day
of , 49 .
“€lerk of the Court
By
THELTON E. HENDERSON
UNITED STATES DISTRICT JUDGE
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHNNY SPAIN,
Petitioner,
NO. © 81-4858 TEH
)
)
)
)
)
)
)
RUTH RUSHEN, )
Director, )
California )
Department of )
Corrections, )
JESS MARQUEZ, )
Superintendent, )
California Medical)
Facility, )
Vacaville, )
California, )
)
)
)
Respondents.
OPINION AND ORDER
This case is before the Court on
Spain's petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254.
The Petitioner claims that he is in
custody pursuant to a judgment of con-
viction that is constitutionally defec-
tive as a result of events that occurred
at his trial. First, Spain contends
that ex parte communications that took
2.
place during his trial between a juror
and the trial judge deprived him of his
constitutional rights to assistance of
counsel and toc be present at a critical
stage of his trial. Second, the Peti-
tioner asserts that his Due Process right
to be presumed innocent at trial was
violated when he was forced to stand
trial while shackled and chained. For
the reasons set forth below, this Court
is compelled to issue the writ.
I. FACTS
The petition for writ of habeas cor-
Pus arises out of Spain's trial as one of
a group of defendants popularly known as
"The San Quentin Six." The trial, which
began in 1975, concerned August, 1971
events at San Quentin Prison’ that
resulted in the death of George Jackson
and five others. At the time these
events occurred, Petitioner Spain was
3.
incarcerated on a first degree murder
conviction.
The indictment on which the defen-
dants were tried contained twelve
counts' including conspiracy to escape
Ey force or violence, assault, ance
murder in the deaths of two prisoners
and three correctional officers. All of
the defendants were charged and tried on
the conspiracy and murder counts. The
trial began on March 25, 1975 and ended
on August 12, 1976 after twenty-four
(24) days of jury CGeliberation. Three
of the six defendants were acquitted on
all counts. One was convicted of one
count of assault, and another of two
counts of assault. The remaining defen-
Gant was Johnny Spain.
Spain, the only defendant who was a
member of the Black Panther Party, was
the only defendant convicted of con-
spiracy and/or murder. On @ theory of
vicarious liability arising out of the
conspiracy conviction, Spain was con-
victed of murder in the deaths of two of
the three correctional officers who died
in the escape attempt allegedly led by
Georce Jackson. People V. Spain,
Pinell, and Johnson, No. 1/Crim. 16126 at
2 (California Ct. App., July 24, 1980)
{hereinafter cited as Ct. App. Opinion].
Consistent with the vicarious liability
theory, Spain was acquitted of murder in
the deaths of the third correctional
officer and the two prisoners. Id.
The relevant portions of the record
at trial and on appeal have been lodged
with the Court+/ and thorouchly reviewed.
he The records referred to were
lodged with the Court in connection with
the case of Spain v. Rushen, et al.,
C 81-2738 TEH, which was dismissed
without prejudice by this Court on
November 24, 1981. See discussion of
Procedural Background, this Opinion,
infra, at pages 9-10. The earlier case
(Footnote continued on next page.)
The facts bearing on the petition are
not in dispute and are set out in detail
in the parties' able briefs and in the
unpublished opinion of the California
Court of Appeal affirmine the convic-
tions of Spain and the other two con-
victed defendants, People v. Spain,
Pinell, and Johnson, No. 1/Crim. 16126
(July 24, 1980). To the extent that
factual findings pertinent to the issues
raised here were made by the California
Court of Appeal, those findings are pre-
sumed to be correct. Sumner v. Mata,
U.S. , 102 S.Ct. 1303, 1306-07
(1982) (per curiam), 28 U.S.C. § 2254
(d).
Footnote 1 continued:
is related to the instant action within
the meaning of Local Rule 205=-2(b), and
judicial notice is hereby taken of the
entire record in C 81-2738 TEH. Fed. R.
Evid. 201.
6.
With respect to the ex parte commun-
ications between judge and juror, the
facts are as follows. Jury selection
took thirty-nine trial days. The sensa-
tional nature of the 1971 events and the
Black Panther membership of Georse
Jackson anc Petitioner Spain prompted
voir dire concerning both violence and
perceptions of the Black Panther Party.
The California Court cf Appeal cCescribed
the pre-trial voir dire as follows:
Fagan [the juror who had x
Parte communications with t
trial judge], during the voi
Gire of the venire, was shown a
vicdeotape of the trial judge's
acmonishing prospective jurors
of the importance of revealing
any association with crimes of
violence and attitudes toward
radical groups, specifically
the Black Panther Party. Fagan
was asked:
"QO. How about crimes of
violence? Any knowledge of
that at all?
«=
"0. Witness, victim otherwise?
_ —
>
Ba
"©. Have you heard of the
Black Panther Party?
"A. Yes.
"©. Do you associate the Black
Panther Party with any
form of violence in your
own mind?
"A. Bo."
Ct. App. Opinion at 9.
During the defense case at trial, a
witness for Spain testified that the
1971 events for which Spain and the
other defendants were on trial resulted
from a police plot to eiiminate a group
of Black Panthers bS5y setting up a
Panther “rescue” of George Jackson and
then ambushing the entire group. The
witness identified a Black Panther named
Pratt as a police informant involved in
the plot as leacéer of the “rescue”
group. Pratt, however, had been in
custody for the 1968 murder of a Santa
Monica woman during the entire period of
the alleged rescue plot. This informa-
tion about Pratt's whereabouts and the
reasons therefor was used to impeach the
Gefense witness on cross-examination.
T™d. at 9-10; see also Examination of
Juror Fagan at Post-trial hearing, Trial
Court Transcript 23957: 2-8 [hereinafter
cited as C.T.].
During a recess on the day of this
cross-examination, Juror Patricia Fagan
went to the chambers of trial Judge Henry
J. Broderick and told him that she sus-
pected that the murder referred to in
cross-examination was the murder of her
friend, Carolyn Olson, by a Black Panther
Party member. Record on Appeal, 5480:28
- 5481:13 {hereinafter cited as R.App.];
C.T. 23919:7-11; Ct. App. Opinion at 10.
Ms. Fagan told the judge that, if the
matter were gone into further, she might
Start to cry in the courtroom. R.App.
5481:13-14; Ct. App. Opinion at 10.
Judge Broderick indicated that it was
unlikely that the 1968 murder referred
9.
to was that of her friend anc told Ms.
Fagan not to concern herself with it.
R. App. 5481:14-17; C.T. 23919:25-28;
Ct. App. Opinion at 10. The judge also
asked Ms. Fagan whether Pratt's asso-
Ciation with her friend's murder would
affect her €isposition of the case. Ms.
Fagan responded in the negative. C.T.
23919:20-24, Ct. App. Opinion at 10. No
record was made of the conversation and
neither the parties nor their counsel
were informed of its occurrence at the
time it took place. Ct. App. Opinion at
ll.
That evening, Ms. Fagan asked her
mother the name of the person who killed
her friend Olson, and her mother
informed her that it was Pratt. R.App.
5§481:18-20; Ct. App. Opinion at 10.
The next day, Ms. Fagan went to see
Judge Broderick again to inform him that
she had confirmed that the testimony
10.
given on the previous day related to the
Geath of her friend. R.App. 5481:21-23;
C.T. 23920:1-4; Ct. App. Cpinion at 10-
ll. Ms. Fagan reiterated the effect that
renewed discussion of the 1968 murder
might have on her composure. R.App.
§481:23-25; C.T. 23920:4-101 Ct. App.
Opinion at ll. The judge advised Ms.
Fagan that the lawyers probably would not
go into the matter further, and asked
again whether Ms. Fagan's disposition
towaré the case would be affected by the
information in her possession. Id. Ms.
Fagan responded that she would be very
unsettled if Pratt were called to tes-
tify. Id. No record of this second con-
versation was made and none of the par-
ties was informed of its occurrence. Ct.
App. Opinion at ll.
Juror Fagan's second conversation
with Judge Broderick took place on
Friday. Evidence was presented the
ll.
following Monday, the next trial day,
that Pratt was a leader of the Black
Panther Party in Los Angeles. Ié. at
12.
Despite the cross-examination cques-
tion posed by the prosecutor concerning
Pratt's incarceration for murder, no
admissible evidence was introduced that
Pratt in fact had killed or teen con-
victed of killing Carolyn Olson. Ic. at
ll. Juror Fagan, however, told other
jurors that Pratt had been convicted cf
muréering a friend of hers. R.App.
5482:2-3; Ct. App. Opinion at ll; see
also Examination of Juror Fagan at post-
trial hearing’ C.T. 23971:24 = 23972:1,
23978:27 - 23979:1.2/ Ms. Pagan, in an
affidavit submitted in opposition to
2. The record is unclear as to
when, precisely, Ms. Fagan conveyed this
information to other jurors, though it
was clearly before the verdicts were
reached.
7 5 = oes ieee ae te
y *
Spain's motion for a new trial, denied
that she made any derogatory comments
about the Black Panther Party in her con-
versations with other jurors concerning
the death of her friend. R.App.
§482:2-7; Ct. App. Opinion at ll.
Following the testimony pertaining to
Pratt, Spain presented evidence of his
Black Panther Party membership. Ct. App.
Opinion at 12. In his closing statement,
the prosecutor argued to the jury that
the Black Panther Party helped to smuggle
weapons or ammunition to Jackson "and
implied that Spain's party membership was
evidence that he, too, was ‘involved in'
the escape plan and ‘working with'
[George] Jackson." Id. at 5-6.
Counsel for Spain learned of the con-
versations between Juror Fagan and Judse
Broderick after the jury returned its
verdict. A motion for new trial based on
these conversations was promptly filed.
P.App. 5437 et seq. Ms. Fagan's affida-
vit was submitted as part of the record
at the hearing on the new trial motion,
at which Ms. Fagan testified. In her
affidavit, Ms. Fagan stated that she
associated the Black Panther Party with
worthwhile activities and that at the
time of pre-trial voir dire the dceath of
her friend was not in her mind. R.App.
5482:7-18. No other jurors testified at
the hearing on the motion for a new
trial, at which Judge Broderick pre-
sided. The motion was denied in
October, 1976. C.T. 24013:12-24014:7.
The pertinent facts with respect to
the shackling of the Petitioner at trial
are as follows: Spain was indicted in
October, 197). From the time of his
indictment through his conviction in
1976, the Petitioner was shackled during
his appearances in state court. Prior
to leaving his cell each morning, Spain,
14.
like the other incarceratec defendants,
was placed in leg irons and belly chains,
and his hands were bound to his waist
chain through the use of additional
chains and handcuffs. Once in the court-
room, Spain's waist chain was shacklec to
his chair, which was bolted to the floor.
Beyond these restraints applied to the
individual defendants, an elaborate
system of courtroom security was
employed, including guards armed with
machine guns, a bullet proof barrier'
body frisks, and metal detectors.
During the pre-trial period, defen-
Gants, including Spain, filed several
motions requesting that they be unshack-
led, all of which were denied. See,
e.g., C.T. 1161, 1165-66. A motion to
reconsider the question of shackling at
trial was. filed on March 7, 1975 and
denied on March 14, 1975. The jury trial
commenced on March 25, 1975 with the
15.
Gefendants shackled in the manner
Gescribed above.
During the course of trial, Judge
Broderick made no express finding as to
why Petitioner Spain was shackled. On
October 1, 1976, just prior to sentenc-
ing, the trial judge orally addressed
the subject of the restraints imposed
Guring trial. C.T. 23994-24003. Peti-
tioner Spain's attorney objected to the
judge's statements on the ground that
the court should not be permitted to
state self-serving reasons for its
actions at such a late date, having
refused to holé a hearing on the
questior of restraints during trial.
Judge Broderick, however, expressed con-
cern that the appellate court be able to
review the decision to maintain the phy-
sical restraints during trial. Judge
Broderick therefore introduced into evi-
dence two court exhibits documenting the
Me
16.
reasons for his decision with respect to
shackling. Court Exhibit 17 is a bound
volume entitled "Composite Behavior
Report,” consisting of security incident
reports submitted to Judge Broderick
during the trial. Exhibit 18 is a set of
videotapes of misconduct by the defen-
Gants during the trial.2/
Exhibits 17 and 18 reveal that, while the
trial was in progress, Petitioner Spain
engagec in the following misconduct:
l. Throwing a file toward the jury
as jurors were being sworn.
June 12, 1975.
3. The existence of Exhibits 17 and
18 came to the attention of this Court
after the March 15, 1982 hearing on the
Order to Show Cause. The Court promptly
contacted the Deputy Attorney General
handling this case on behalf of the State
of California. As the result of the
State's diligent efforts, a copy of
Exhibit 17 and the original of Exhibit 18
were obtained anc lodged with the Court
on May 21, 1982.
Oo
et
J
"
@
yy
t
to a correc-
Generalize
tional officer while at San
Quentin. ("What goes around
comes around.") June 12, 1975.
rubbing chains
across chair arm during reading
cof the indictment. July 28,
1975.
Urinating on courtroom floor
while waiting to be returned to
San Quentin after close of the
day's proceedings. January 30,
1976.
10.
ll.
12.
Throwing "unknown instrument"
at opening in cell door at San
Quentin, striking the hand of a
officer was walking by.
February 2
Intentionally bumping defendant
Talamantez while in transit
from San Quentin to court.
February 27, 1976.
Throwing water at six security
officers who were restraining a
codefendant during court
recess. April 12, 1976.
Indecent anc unacceptable ver-
bal responses to questions from
correctional officers at San
Quentin, resulting in security
incident report on May 13,
1976.
Illegal possession of medica-
tion at San Quentin. June 21,
1976.
& F Yelling threat and obscenities
at correctional officers at San
Quentin. July 12, 1976.
14. Verbal belligerence with
security officers during court
The initial decision to shackle
Petitioner Spain was made at his indict-
ment, before any of Petitioner's disrup-
tive acts occurred. The decision to
keep Spain in shackles throughout the
trial was presumably based on Spain's
conduct in the courtroom and on the out-
of-court behavior reported to Judge
Broderick by the security team at San
Quenton, all of which is itemized in
chronological order in the foregoing
list.
II. PROCEDURAL BACKGROUND
Petitioner Spain filed a notice of
appeal to the California Court of Appeal
on October 1, 1976, the same day that
20.
the judgment of conviction was entered
against him. R.App. 5507-5508, 5512.
Nearly four years later, Spain's convic-
tion was affirmed by the Court of Appeal,
which considered both of the issues
raised by the instant petition. With
respect to the ex parte communications
between Juror Fagan and the trial judge,
the state appellate court found that
though federal constitutional error was
committed, that error was shown by the
State to be harmless beyond a reasonable
Goubt. Ct. App. Opinion at 13-19. As to
the shackling of the defendants at trial,
the Court of Appeal ruled that even if
the shackling were assumed to constitute
a due process violation, the resulting
error was not prejudicial to the defen-
Gants. Ic. at 19-20.
The California Court of Appeal opin-
ion was filed on July 24, 1980. A Peti-
tion for Hearing before the California
Supreme Court was served on September 2,
1980. The California Supreme Court
denied a hearing, issuing an order to
that effect on October 15, 1980.
—
November 2, 1981 hearing on that peti-
tion, counsel were alerted to the
Court's concerns regarding exhaustion of
state remedies or the shacklin issue.
Spain promptly filed, on November 5,
1981, a petition for writ of habeas cor-
pus raising the shackling issue in the
California Supreme Court.
On November 24, 1981, this Court
Gismissed without prejudice Spain's
petition in C 81-2738 TEH for failure to
exhaust state remedies on the shackling
22.
issue. 4/
On December 23, 1981, the California
Supreme Court denied without a hearing
Spain's petition for writ of habeas cor-
pus. In re Johnny Spain,-Crim. No. 22325
celia Sep. Ct. Dee. 23, 2968) On
December 31, 1981, Spain filed the peti-
tion that is now before the Court. a
hearing in this case was held on March
15, 1982. With this procedural and
4, The Ninth Circuit's “total ex-
haustion” rule, which this Court viewed
as mandating dismissal of Spain's
earlier-filed petition, has since been
adopted by ee United States Supreme
Court. Rose v. Lund U.S. ___, 102
S.Ct. tise frse-T1382), The Court notes,
however, that the interpretation of
California Supreme Court Rules which gave
rise to the exhaustion concern resulting
in dismissal in C 81-2738 TEH is under-
mined, if not rejected, by the Ninth
Circuit's opinion in Maxwell v. Sumner,
673 F.2d 1031, 1034 n. 1 (9th Cir. 1982),
a case decided before Rose v. Lundy. See
enerally re exhaustion, Lynn and Bolz,
Federal Habeas Corpus Review of State
Criminal Cases, in Appeals and Writs in
Criminal Cases, §§ 4.25-4.42 (California
Continuing Education of the Bar 1982).
7 Se : eae
23.
factual background established, we now
turn to a discussion of the merits of
Petitioner Spain's claims.
III. DISCUSSION
A. Communications between juror and
judge.
1. Constitutional error.
Consistent with the Califoria Court
of Appeal decision in this case, the
Respondents here do not dispute that, as
a result of the ex parte communications
that took place during trial between
Juror Fagan and Judge Brocerick,
Petitioner Spain was denied his federal
constitutional rights to be present at a
critical stage of his trial and to be
represented by counsel. Absent a viola-
tion of the United States Constitution,
it would be error for this Court to
issue a writ of habeas corpus. Smith v.
Phi llips, U.S. , 102 De Ct. 940,
24.
948 (1982). The Court of Appeal decision
and the Respondents' concession notwith-
standing, to the extent that finding a
constitutional violation requires the
application of legal standards to histor-
ical facts, the existence of such a
violation must be independently deter-
minecé by this Court. Sumner v. Mata,
supra, 102 S. Ct. at 1306-07; Pierre v.
Thompson, 666 F.2d 424, 427 (9th Cir.
1982); see also Cuvler v. Sullivan, 446
U.S. 335, 342 (1980). Furthermore, a
determination of the fact and nature of
the constitutional error here is neces-
Sary to a full understanding of the
dispute between the parties concerning
the standard of review to be applied in
this case.
The California Court of Appeal,
reviewing this aspect of the case, per-
ceived the issue before it as
I ee ae ne
25.
aris{ing] at the confluence of
three streams of constitutional
doctrine, flowing from the
right of defendants in criminal
proceedings to trial by an
impartial jury, their right to
be personally present during
the proceedings, anc their
right to be represented by an
attorney.
Ct. App. Opinion at 12. Only the latter
two aspects of constitutional doctrine
are raised by Spain before this Court.
We note, however, extencing the
California Court's metaphor, that the
right to be tried by an impartial jury
is an ever-present undercurrent in the
right to be present and the right to
counsel Claims made here by the
Petitioner.
Focusing first on the right of a
Criminal defendant to be physically pre-
sent at a critical stage of the trial,
we note at the outset that this right is
not one enumerated in the United States
Constitution. Nonetheless, the Supreme
Court has recognized the constitutional
26.
stature of rights essential to due pro-
cess of law in a fair adversary pro-
ceeding, and has identified as one such
right that of the accused in a criminal
proceeding "to be present at all stages
of the trial where his absence might
frustrate the fairness of the proceed-
ings." Faretta v. California, 422 U.S.
806, 819 n.15 (1975). See also Badger v.
Cardwell, 587 F.2d 968, 970 (9th Cir.
1978).
The constitutional right to be pre-
sent thus extends to conferences between
judge and juror, at least where the
defendant's absence could, under some set
of circumstances, be harmful. United
States v. Walls, 577 F.2d 690, 697-98
(9th Cir.), cert. denied, 439 U.S. 893
(1978), The circumstances of this case
leave no doubt that Petitioner Spain's
absence during the conversations between
Juror Fagan and Judge Broderick might
a7.
have frustrated the fairness of the
trial and that the Petitioner's absence
therefore violated his constitutional
The right to jury trial in criminal
Cases, guaranteed in state proceecings
by force of the Fourteenth Amendment,
Duncan v. State of Touisiana, 391 U.S.
145 (1968), encompasses the right to
trial by an impartial jury. U.S. Const.
amend. VI, § 2 (emphasis supplied).
Stressing this impartiality requirement
at note 10 of its opinion in Turner v.
-¥ As the definition of the right
indicates, a finding that the right to
be present has been violated does not
necessarily mean that the proceedings
were per se unfair. Rather, a deter-
mination that the constititional right
was violated means only that the
Gefendant's absence occurred under cir-
cumstances that might give rise to a
deprivation of fundamental fairness. As
to ~the separate auvestion of whether a
violation of the right requires issuance
of the writ sought here, see discussion
of Standard of Review, this Opinion,
infra, at pages 16, 21-33.
28.
State of Louisiana, the Supreme Court
observed that
The requirement that a jury's
verdict "must be based upon the
evidence developed at trial”
raewsn VV. Dowd, 366 U.8.. 77,
722 (1961)] goes to the fun-
damental integrity of all that
is embraced in the constitu-
tional concept of trial by jury.
10/ "The jury is an essential
instrumentality--an appendage--
of the court, the body ordained
to pass upon guilt or innocence.
Exercise of calm and_ informed
judgment by its members is
essential to prover enforcement
of law." Sinclair v. United
States, 279 U.S. 749, 765
faeerl . . «
co) ao 466, 472 (1965) (emphasis
supplied). The content as well as the
fact cf the conversations between Juror
Fagan and Judge Broderick indicate that
the “fundamental intecrity of all that is
embraced in the constitutional concept of
trial by jury, was in oquestion during
those discussions.
During her second conversation with
the trial judge, Ms. Pagan let it be known
23.
that she had somehow confirmed what,
Guring their first conversation, she had
only suspected--that the Pratt about
whom testimony was being given had
murdered her friend. Ms. Fagan thus
conveyed to Judge Brocerick that she hae
et her disposal information not intro-
Guced at trial, either as evidence or
otherwise. &/
Furthermore, that the information
she possessed was extremely distrubing
to Ms. Fagan is revealed not only by
what Ms. Fagan told Judge Broderick
about her emotional state, but also bv
— )
6. Based on the post-trial hearin.
the trial court found that Ms. Pagan's
failure to reveal this information at
the pre-trial voir dire was not willful.
C.T. 24013:18-28. Petitioner Spain does
not challenge that finding, and we pre-
sume it to be correct. 25. U.05C;
§ 2254(¢e).
The Respondent's arcument that the
information in Ms. Fagan's possession
@id not relate to a fact in controversy
at trial is discussed, infra, at pages
24-26 of this Opinion.
30.
the fact that the conversations with him
occurred at all. Juror Fagan told the
judge, not once but twice, that continued
discussion at trial of her friend's death
might be so emotionally disturbing as te
cause her to cry. The truth of Ms.
Fagan's statements about her emotional
condition is apparent from the fact that,
in order to approach Judce Broderick, Ms.
Fagan had to overcome an explicit admoni-
tion from the judge himself not to
Giscuss the case with anyone. Cat.
23971:24-26. An issue so troubling that
it provokes an apparently conscientious
juror2/ to breach a clear instruction
from the court at least raises concerns
about the person's ability to continue to
7. At the time that these conversa-
tions with Judge Broderick occurred, Ms.
Fagan had been sitting on the jury, evi-
Gently without incident, for over eight
months. See Ct. App. Opinion at 13.
31.
be an impartial juror, concerns rein-
forced by the obvious emotional impact
that the testimony triggering the con-
versSations with the judge had on the
juror.
During each of the two discussions
he had with Ms. Fagan, Judge Broderick
inquired whether Ms. Fagan felt that she
could dispose of the case fairly despite
the information in her possession. This
fact confirms that the content and
mature of the conversations posed for
the trial judge, as for this Court,
Guestions about Ms. Fagan's fitness to
continue to serve as a juror. When
these ex parte communications occurred,
questions thus arose as to whether the
essential elements of trial by an impar-
tial jury, as articulated by the Supreme
Court in Turner v. State of Louisiana,
supra, continued to be satisfied.
32.
Petitioner Spain's absence from conver-
sations implicating a juror's ability to
judge impartially the case against him
presented the same possibility for frus-
ioe > ghee =
trating the fairness of the proceedings
| KG ; Semm intiseiat ome
as would his absence from initial voir
ie
dire. See United States v. Crutcher,
denied, 394 U.S. 908 (1968). See also
3 s 7 po %A > 5 ‘ 5 3
Alessandrello, 637 F.2d i3l, 138 3rd
al - 3 3 Ag rr «ec AO
Cir. 1980), cert. deniec€. 451 U.S. 949
\ iin r ~ Aas
(1981) Fed. R. Crim. P. 43 encompasses
pre-trial voir dire of jury). we are
compelled to conclude, therefore, that
the failure to provide for Spain's pres-
ence during the conversations between
uror Fagan deprived
a,
Cy
c
Judge Broderick an
him of his constitutional right to be
present at a critical stage of his trial.
33.
We turn next to the Petitioner's
Claim that the ex parte communications
between Ms. Fagan and the trial judge
deprived him of his right to counsel as
guaranteed by the Sixth and Fourteenth
Amendments to the Constitution. Gideon
vy. Wainwricht, uh Se Oe 335 (1963).
Although the right to counsel is not
absolute, it is fundamental to our
system of justice in that it is meant to
assure fairness in the adversary crimi-
mal process. United States v. Morrison,
449 U.S. 361, 364 (1981). Consistent
with this purpose,
the right to the assistance
of counsel has been under-
stood to mean that there can
be no restrictions upon the
function of counsel in
defending a criminal prosecu-
tion in accord with the tra-
ditions of the adversary
fact-finding process that has
been constitutionalized in
the Sixth and Fourteenth
Amendments.
Berrinc v. New York, 422 U.S. 853, 857
(1975).
Among the “traditions of the adver-
sary fact-finding process” constitutiona-
J¢ 7 -* ce -* =A = nw, me
lized in che Sixth anc Fourteenth
r , re seek i
_ — - - = . -r rs rr eS - = - -~r, me on
Amendments is the right to Be tried bBy a:
_ wes 4 - = T?7 ¢<¢ CAA - — | wr
impartial jury. U.S. Const. amend. VI
accord with the right to a trial by an
impartial jury. That th ight to be so
tried was put in issue by the conver-
Sations between Juror Fagan and Judce
Broderick is clear from the foregoing
discussion of Petitioner Spain's right te
be present during those conversations.
The absence of Spair's counsel from those
Same conversations prevented the attorney
from protecting the fundamental integrity
dl
r re
35.
of his client*s trial by jury and thus
violated Spain's Sixth Amendment right
to counsel.
In circumstances such as those pre-
sented here, the lawyer's function in
protecting a client's right to trial by
an impartial jury has several facets.
When there are mid-trial indications
that a juror may be unfit to continue to
serve on the jury, defense counsel's
first objective would be to determine,
by either direct or indirect parti-
eT
cipation in voir dire of that juror,
whether the person in fact remains
Gualified to sit on the jury. If, as a
result of that voir dire, the juror is
found to be biased or otherwise unfit to
serve, counsel would seek to have that
juror removed and replaced by an alter-
nate if possible. Even if the juror
were found fit to continue to serve,
however, a competent lawyer would have
36.
the remaining objective of preventing the
voir dire of the juror thereby “contami-
nated” from coming to the attention of
Other jurors in a way that might be pre-
judicial to the defendant. Counsel would
thus seek to have the court instruct the
voir dired juror so as to severely limit
if not eliminate conversations with ocher
jurors about the nature and conetnt of
the mid-trial voir dire, thereby mini-
mizing the possibility that other jurors
would be tained by either the fact or tre
substance of that voir dire.
In this case' because the trial judge
never informed the parties of his conver-
Sations with Ms. Fagan, Spain's lawyer
never had the opportunity to accomplish
these goais.2/
8. Thus, though the right to coun-
sel protected by the Sixth Amendment is
subject to waiver, Johnson v. Zerbst, 304
U.S. 458 (1938), no suggestion has been
(Footnote continued on next page.)
37.
In licht of the nature of the informa-
tion revealed to Judge Broderick by Ms.
Fagan, the words of Mr. Justice
Sutherland in Powell v. Alabama seem
particularly germane to this case.
Footnote 8 continued:
Or could be made that the right was
waived in this case. It is appropriate
to note in this context that Supreme
Court cases
have consistently recognized
the importart role the trial
judge plays in the federal
system of criminal justice.
"The judge is not a mere
moderator, but is the governor
of the trial for the purpose of
assuring its proper conduct
nn
Geders v. United States, 425 U.S. 80, 86
(1976). Though the cases establishing
this principle generally invoive federal
court trials, the role of the state
court judge in assuring the proper con-
duct of the trial by protecting the
defendant's federal constitutional
rights is no less important. Fulfill-
ment of this role is essential to mini-
mize federal intrusion into state
criminal 2s Siaaapeara See Engle vy.
Isaac, , 102 8. Ce. i506s
1571-72 1382). We note also the
(Footnote continued on next page.)
38.
The right to be heard would be,
in many cases, of little avail
if it did not comprehend the
right to be heard by counsel.
Even the intelligent and edu-
cated layman has small anéd
sometimes no- skill in the
egienee @t iaw . «es (eee
without the aic of counsel he
may be put on trial without a
proper charce, and convicted
upon incompetent evidence, or
evicence irrelevant to the
issue or otherwise inacmissible.
sa He requires tne guiding
hand of counsel at every step
of the proceedings against him.
er 45, 68-€9 (1932) (emphasis
supplied).
2. Standard of review.
Constitutional error having thus
Footnote 8 continued:
Supreme Court's observation, in a case
involving collateral attack on a state
Criminal conviction, that "[d]ue process
means a jury capable and willing to
decide the case solely on the evidence
before it, and a trial judge ever watch-
ful to prevent prejudicial occurrences
and to determine the effect of such
occurrences when thev happen.” Smith
v. Phillips, supra, 102 S. Ct. at 946.
39.
between Ms. Fagan and Judge Broderick,
we now must scrutinize the effect of
that error on Petitioner Spain's convic-
tion and thus the appropriateness of
nation involves the two-step process of
gGetermining the standard of review
applicable to the constitutional viola-
tion at issue and of applying that stan-
Garé to the facts before us.
S
4
ry)
—
1
1)
As the foregoing discussion
Clear, the right to presence and the
right to counsel violations that
occurred are closely related. The
interests protected by Spain's presence
would have been protected and furthered
had Spain's counsel alone participated
in a mid-trial voir dire of Ms. Fagan.
See Powell v. Alabama, supra, 287 U.S.
at 68-69, and this Opinion, supra, at
page 15. This congruence of the rights
at issue permits us to focus on the stan-
dard of review governing the right to
counsel violation that cccurred here. An
examination of the standard of review
applicable to the right to presence
violation would add nothing to the
analysis.=
9. Viola n ht to pres-
ence creates a presumption of prejudice.
United States v. Tavlor, 562 F.2d 1345,
1365 (2d Cir.), cert. denied, 432 U.S.
909 (1977). Petitioner Spain suggests
that this presumption compels automatic
reversal of any conviction obtainec under
circumstances where the right was
violated. Petitioner's Memorandum in
ition for Writ of Habeas
Support of Pe
Corpus, 17:1 , Spain fails to note,
however, tha he cases cited in support
of this contention--Lewis v. United
States, 146 U.S. 370 (1892) and Hopt v.
People, 110 U.S. 574 (1884)--involved the
absence of the defendant from the initial
jury selection process. Where, as here,
the right to be present was violated by a
mid-trial communication between judge and
juror, the test applied is not automatic
reversal, but harmless error. United
States v. Taylor, supra, 562 F.20 at
1365; — also Unitec States v. Walls,
supra, 577 F.2a at 6968.
For a discussion of the application
of the harmless error test to the facts
of this case, see this Opinion, infra, at
pages 21-33.
41.
The State takes the position that
the California Court of Appeal was
correct in apolying the harmless error
test to the violation of Spain's right
to counsel. Spain argues that the
mature of the violation here recuires
automatic reversal of his conviction.
The principles that govern resolution of
this dispute between the parties are
enunciated and analyzed in depth by the
Ninth Circuit sitting en banc in Cooper
Vv. Pitzharris, 586 F.26 1325, 1331-33
(9th Cir. 1978), ert. denied, 440 U.S.
974 (1979), and were recently summarized
in Slappy v. Morris, 649 F.2d 718, 722-
23 (9th Cir. 1981), cert. granted,
Ties, - 308 OSes. 2748 - 288
Proper application of those principles
to the right to counsel deprivation
that occurred in this case dictates
the automatic reversal of Spain's
42.
conviction.+2/
As described by the Ninth Circuit in
Cooper, right to counsel cases are
separable into two groups: one group in
which the harmless error test applies,
and a second group in which violation of
the right results in automatic reversal
of the conviction. By examining the cir-
cumstances surrounding th right to
counsel violation in each of these
groups, the Court of Appeals identified
the factors that are critical te deter-
mining into which group a given case
_
falls.
10. Unlike state court factual
determinations, state court findings of
law are not entitled to deference in a
federal court consicering a petition for
writ of habeas corpus. Sumner v. Mata,
supra, 102 S. Ct. at 1306-07; Townsené
v. Sain, 372 U.S. 293, 318 (1963). Thus
the decision by the California Court of
Appeal that the harmless error test
applied to the right to counsel violation
here in no way binds this Court, which is
obligated to apolyv the controlling
federal law to the facts before it.
43.
In the group of cases to which the
harmless error test applies, the consti-
tutional error occurs under circum-
stances that permit a reviewing court to
determine from the record whether depri-
vation of the right to counsel was
harmless beyond a reasonable doubt.
This group of cases thus involves those
where
"the error occurs at trial and
its scope is readily iden-
tifiable. Accordingly, the
reviewing court can undertake
with some confidence its rela-
tively narrcw task of assessing
the likelihooc that the error
materially affected the delib-
erations of the jury.”
[Holloway v. Arkansas, 435 U.S.
at 4 at 490, 98 S.Ct. [1173]
at 1182 ((1978)).
Cooper v. Fitzharris, supra, 586 F.2d at
4332.
By contrast, in cases requiring
automatic reversal, the trial court
record is such that a reviewing court
seeking to discern the harmlessness of
44.
the right to counsel "iolation would be
forced to engage in "unguided specula-
tion.” Id.
When no counsel is provided or
counsel is prevented from
Gischarging his normal func-
tions, the evil lies in what
the attorney does not do, and
is either not readily apparent
on the record, or occurs at a
time when no record is made.
Id.; accord, Slappy v. Morris, supra, 649
F.2d at 723. Under such circumstances,
the harmless error standard, which is
predicated on review of a record that
reflects that the defendant was preju-
Giced in some specific fashion, is not
"susceptible to intelligent, evenhanded
application." Cooper v. Fitzharris,
supra, 586 F.2d at 1332, quoting Holloway
v. Arkansas, 435 U.S. at 490. A review-
ing court confronted with a deprivation
of the constitutional right to counsel
must reverse where the state of the
record precludes intelligent, evenhanded
application of the standard of review
>
wn
.
/
Ir
that would otherwise control.
A comparison of the facts in Cooper
v. FPitzharris. supra, and Slappy v.
Morris, supra, 22/ is instructive for
Lie A federal di
reviewing a state conviction
text of a petition for writ o
corpus is authorized to expand the trial
court record if necessary to determine
the appropriateness of issuance of the
writ. Harris v. Nelson, 394 U.S. 286
(1969); Rule 7, Rules Governing Section
2254 Cases, 28 U.S.C. foll. § 2254. As
Giscussed, infra, at pages 26-30[,] of
this Opinion, however, this Court's
ability to expand the state court record
is severely limited by the factual cir-
cumstances of the case before it.
i2. As noted above, the Supreme
Court has granted certiorari in Slappy
v. Morris, U.S. , 102 & Ct. 1746
(1982). The nature of the constitu-
tional violation at issue in Slapoyv is
markedly different from the violation at
issue here. Slappy concerns the circum-
stances under which failure of appointed
counsel to appear at trial will be
treated as a deprivation of the consti-
tutional right to counsel even though
the defendant was represented by subdsti-
tute counsel. With respect to the ex
parte communications between the judge
anc juror in Petitioner Spain's case, no
counsel appeared, either substitute or
otherwise. Thus the Slanpy case is used
(Footnote continued on next page.)
comprehending the distinction between
these two groups of cases and for
assessing the instant case in terms of
that distinction.
In Cooper, the petitioner alleged
resulting from errors and omissions com-
mitted by his attorney at trial. Alleged
as the trial lawyer's defaults were the
failure to object to the admission into
evidence of fruits of a warrantless
search, the failure to move to suppress
*
Statements made by the petitioner to the
police, the failure to object to testi-
mony concerning the identification of the
petitioner at a pre-incictment lineup,
and the failure to inform the petitioner
Footnote 12 continued:
here only to illustrate tke principles
Gictating automatic reversal of a convic-
tion and is not relied upon to establish
the existence of 3 constitutional
violation.
a4
47.
of his right to appeal. 586 F.2d at
1328. Distinguishing Cooper's case from
those in which reversale was automatic
once deprivation of the right to counsel
was shown, the Ninth Circuit observed
that
fiJn this case, appellant does
not assert that he was denied
counsel at trial, or that coun-
sei, though present, was
prevented from performing a
critical function or otherwise
impeced in the advocacy of
appellant's cause. Rather,
appellant contends that
although he had an attorney
present and acting freely on
his behalf, he did not have
effective assistance of counsel
because his attorney erred in
specific respects in the course
Of trial. ..-s- ([Tjhese cnis-
sions were not forced on
defense counsel. Their impact
appears on the face of the
trial record. Their prejudi-
cial effect can be evaluated
from that record with reaso-
nable certainty. In such a
case there is no reason to
reverse a conviction if it
appears that the defense was
not prejudiced by the alleged
inadequacies of counsel's
performance.
48.
Ié. at 1332. By applying these prin-
ciples, the court was able to ascertain
with "reasonable certainty” that the spe-
cific errors allecsedly committed by trial
counsel either were not errors under the
State of the law as it existed at the
time of trial or were not prejudicial.
See ic. at 1333-34.
In Slappy, the Ninth Circuit found
that the petitioner was denied his right
to counsel when the tiral judge, without
making any inquiry as to when the public
Gefender cricginally appointed to repre-
sent the defencant micht be available,
refused to grant a continuance of the
trial to enable that lawyer to be pre-
sent. 649 F.2d at 721-22. By arbi-
trarily depriving the petitioner of his
right to a “meaningful attorney-client
relationship,” the trial court infringed
on Slappy's Sixth Amendment right to
counsel. Given the nature of the
49,
constitutional violation, the competency
of the public defender appointed as sub-
stitute counsel was irrelevant. Id. at
723. The injury inflicted on Slappy
arose from interference with his rela-
tionship with his first lawyer, and
because the impact of that harm on the
defense could not be assessed by exa-
mining the trial record established by a
second lawyer, automatic reversal was
required.
When the facts of Petitioner Spain's
right to counsel violation are viewed in
light of the distinction thus drawn
between cases scrutinized under the
harmless error test and those subject to
automatic reversal, it is clear that
reversal is automatic here. The state
of the record, viewed in light of the
mature of the violation, precludes
intelligent application of the harmless
error standard. Counsel for Spain was
50.
barred from discharging the critical
function of protecting Spain's right to
trial by an impartial jury when the trial
judge failed to inform him of the ex
parte communications from Juror Fagan.
See Cooper v. Fitzharris, supra, 586 F.2¢e
at 1332. Spain's counsel was not only
prohibited from determining Ms. Fagan's
continuing fitness to serve on the jury,
but also was prevented from making
efforts to minimize the impact on other
jurors of Ms. Fagan's information ane
emotional state. See Gibson v. Clanon,
633 F.2d 851, 854 (9th Cir. 1980), cert.
Genied, 450 U.S. 1035 (1981); see also
Section TIII., A., 1. of this Opinion,
Supra. No record was made of the conver-
Sations between judge and juror at the
time they occurred, and the private
mature of those discussions prevented the
resultant interference with the normal
functions of Spain's lawyer from being
-
"readily apparent on the record."
Cooper v. Fitzharris, supra, 586 F.2d at
1332; Slappy v. Morris, supra, 649 F.2d
at 723. Reversal of Spain's conviction
is thus compelled because there is no
recoré that permits this Court to under-
take with confidence an assessment of
the “likelihood that the error materi-
ally affected the deliberations of the
jury." Holloway v. Arkansas, 435 U.S.
475, 490 (1978).
What is known from the record of the
trial is that Ms. Fagan had at her dis-
posal informaticn, not introduced as
evidence, connecting a leader of the
Black Panther Party to the violent death
of her friend, that the murder of her
friend was an extemely emotional issue
for Ms. Fagan; and that other jurors
were told by Juror Fagan of the murder
of her friend by a Black Panther Party
leader. The inability of Spain's lawyer
52.
to establish a record with respect both
to Ms. Fagan's possible bias and to
efforts to limit the contamination of
other jurors prevents this Court from
engaging in anything but "uncuidced
speculation" as to the impact of these
matters on the jury's deliberations.
Cooper v. Fitzharris, supra, 586 F.2d at
cr
ct
O
1332. The violation of Spain's righ
counsel under these circumstances there-
fore compels reversal of the conviction
and issuance of the writ without further
inquiry into the harmlessness vel non of
. 13
the constitutional error.s=/
13. Responcents cite two cases in
which the absence of counsel déurin
judge-jury communications was tested
under the harmless error standard,
United States v. Cassasa, 588 F.2d 282,
(9th Cir. 1978), cert. denied, 441
U.S. 909 (1979) and United States v.
Reynolds, 489 F.2d 4, 7-8 (6th Cir.
Tsyth cert. denied, 416 U.S. 988 (1974),
on which the Cassasa court relied. Both
of these cases. involved communications
between the judge and jury during final
(Footnote continued on next page.)
$3.
The Respondents point to the post-
trial hearing on Spain's motion for a
new trial, contending that the record
Footnote 13 continued: .
jury deliberations rather than in th
midst of trial, and both are distin-
guishable from this case for two further
reasons. First and most important is
that in both cases a record existed of
all of the communications and the cir-
cumstances under which they occurred.
This is in stark contrast to the instant
case in which, though the record may
permit us to reconstruct the content and
Context of Ms. Fagan's conversations
with Judge Broderick, there is nothing
from which to discern exactly what other
jurors were told and the circumstances
under which they obtained information
from Ms. Fagan. Thus, unlike Cassasa
and Reynolds, the record here does not
enable this Court to determine whether
the constitutional error was harmless.
Second, neither case posed a question of
a violation of the defendant's constitu-
tional right to counsel. Both cases
were decided under Fed. R. Crim. P.
43(a), a Rule not implicated here
because Petitioner Spain was tried in
state, not federal, court. With respect
to this distinction, we note thet Rule
43(a), violation of which triggers the
harmless error standard adopted in Fed.
R. Crim. P. 52(a), concerns the absence
of a defendant at every trial stage, and
makes no reference to the right of a
federal criminal defendant to have
counsel present.
54.
adduced there concerning the ex _ parte
communications between judge and juror
permits this Court to make the assessment
required under the harmless error test
and thus obviates the need to automati-
Cally reverse Spain's conviction. The
defect in this contention is apparent
from the fact that reversal would be
required even if the harmless error stan-
Gard, rather than automati reversal,
were applicable to the right to counsel
violation in this case. We therefore
turn to application of the harmless error
test to demonstrate the weakness of
Responcents' contention, thereby also
illustrating the analysis by which this
Case would be decided if the deprivation
of Spain's right to be present were the
only constitutional error at issue here.
See Section III., A., 2. of this Opinion,
Supra, at 16, n. 9.
ihe
rial
the California
Petitioner Spain's
re
trial, implicitly
motion
court,
found the constitutional errors at issue
here to be harmless. c.T 24013:12-
24014:7. The California Court of Appeal
expressly reached the same conclusion.
Ct. App. Opinion at 14-17 As pointed
out above, a state court's fincines of
fact are entitled to a presumption of
correctness in a federal habeas corpus
proceeding. 28 U.S.C. § 2554(d)3; see
Rines v. Enomoto, 658 F.2d 667, 675 (9th
Cir. 1981). A state court's application
of the legal standard to those facts,
however, is not entitled to deference.
See Sumner v. Mata, pera, i002 $.Ct. et
1306-07; see also Imbler v. State of
California, 424 F.2d 631, 632 (9th Cir.)
(per curiam), cert. denied, 400 U.S.
w
a
presents
WwW)
Vv.
=
Chapman
©
“4
tt
oa |
©O
a
“a4
a
~
Present or
tions
at Spain's trial was harmless beyond a
reasonable doubt, the Respondents stress
the right to be tried by an impartial
jury that underlies each of these viola-
With respect to the content of the
conversations between Judge Broderick
and Juror Fagan, the Respondents empha~
size what they perceive as the reasons
that ex parte communications between
judge and juror are prohibited. As
Respondents see it, the prohibition is a
function of the dancer that a juror may
58.
receive incorrect information about the
facts or law of the case, or that a juror
may be influenced by the court's attitude
as conveyed through such communications.
Because the conversations between Ms.
Fagan ané Judge Broderick did not present
either of these dangers, the Respondents
argue that petitioner Spain was not pre-
judicedbby them. Not only was the sub-
ject matter of the discussions -- the
Geath of someone at the hands of an indi-
vidual who was neither a party nor a wit-
ness at Spain's trial -- unrelated to any
fact in controversy, but the trial court
@id not communicate facts or legal prin-
Ciples to Ms. Fagan, nor attempt in any
way to influence her. Thus, in
Respondents’ view, the content of the
conversations did not harm the Petitioner
because none of the dangers sought to be
prevented by the prohibition of ex parte
judge-juror communications was present.
Bi
Aes
59.
Respondents nonetheless acknowledge
that the defense may have been harmed by
the fact that, at the time of the con-
versations, Spain's lawyer was unable to
determine whether Ms. Fagan was biased
by the infermation about her friend's
death. At the hearing on Spain's motion
for a new trial, however, Ms. Fagan
testified that she was not biased
against Petitioner Spain, and, on the
basis of her testimony, the trial court
as well as the California Court of
Appeal founc Ms. Fagan to have been a
fair and impartial juror. The
Respondents point to the record of the
post-trial hearing as enabling this
Court to make the recuisite determina-
tion under the harmless error standard
and as showing that, in fact, the error
that occurred was harmless beyond a
reasonable doubt. As to the other
jurors, Respondents contend first that,
60.
as with the conversations between Ms.
Fagan and the judge, the content of the
information conveyed to them by Ms. Facan
was completely unrelated to matters that
the jury was called upon to cecide, ane
thus there is no reason to coubt their
impartiality. Furthermore, Respondents
argue that Petitioner Spain's failure to
Call the other jurors to testify at the
post-trial hearing constitutes a waiver
of any challenge to the conviction based
on juror contamination.
By focusing on the juror partiality
implications of Ms. Fagan's conversations
with the trial judge, Respondents ignore
Significant interests sought to be pro-
tected by the right to presence anc the
right to counsel, interests that cannot
be adequately safeguarded by a post-trial
hearing. The weaknesses in the Respon-
dents' argument are examined below.
61.
Respondents contend that because
Judge Broderick neither communicated
information to Ms. Fagan nor attempted
to influence her, Petitioner Spain could
not have been harmed by the substance of
what was said during the ex parte con-
versations. By concentrating on what
was said tc Ms. Fagan, the Respondents
overlook that Juror Fagan was telling
the trial judge that she had information
that was not introduced as evidence at
trial. This fact apparently escaped the
attention of the trial judge, but
nothing in the trial record permits us
to determine whether it would also have
gone unnoticed by Petitioner Spain and/
or his lawyer if they either had been
present at, or notified of the occur-
rence and content of, the conversations
between Ms. Fagan and Judge Broderick.
Spain was thus deprived of the oppor-
tunity to explore what Ms. Fagan knew,
62.
how she came to know it, the effect of
her knowledge on her state of mind with
respect to affording the Petitioner a
fair hearing, and ways of preventing the
1
information from coming to the attention
Possibly recognizing this weakness
in their argument, the Respondents stress
that Petitioner Spain could not have been
harmed by what was revealed during the
conversations between the juror and the
judge because the subject matter uncer
discussion was unrelated to anything in
controversy at trial. Though it is true
that Carolyn Olson's death and Elmer
Pratt's role in it were not directiy at
issue in Petitioner Spain's trial, it
does not follow, as Respondents contend,
that the subject uncer discussion between
Ms. Fagan and Judge Broderick was
“totally irrelevant" to the trial.
63.
Respondents' Memorandum of Points and
Authorities, 21:5-8. Respondents take
far too narrow a view of the trial.
As the pre-trial jury voir dire
reveals, Spain's counsel was concerned
from the outset that those who sat in
judgment on his client not have personal
experience with violence or associate
the Black Panther Party with violence.
The trial court acknowledged the vali-
City of this concern when it permitted
pre-trial voir dire on these subjects.
See this Opinion, supra, at page 3. Its
legitimacy is reflected in the violent
mature of the crimes charged, the
Gefense testimony about Spain's Black
Panther Party membership, and the
prosecution's suggestion in closing
argument that Spain's criminal liability
should be inferred from his association
with the Black Panther Party. When Ms.
Fagan talked to the judge about Carolyn
64.
Olson's death, she revealed that, her
voir dire testimony notwithstanding, com-
pare Smith v. Phillips, supra, 102 §.Ct.
at 943-44 n. 4, she had personal know-
ledge of violent crime. Carolyn Olson
was a good friend who had been brutally
murdered, That Ms. Fagan had personal
Oo
t--
wm
po |
ct
experience with vi crime, however,
was not the only information that came to
light during the juror's conversation
with the trial judge. Petitioner Spain
and his defense counsel might well have
been even more concerned, had they Known,
that Ms. Fagan believed that her good
friend had been killed by a leader of the
Black Panther Party.
Respondents Giscount this informa-
tion about the identity and political
affiliation of Carolyn Olson's killer
with the observation that Pratt was
neither a witness nor a party at trial.
This statement, though true, misses the
65.
point. From Petitioner Spain's perspec-
tive, the combination of Ms. Fagan's
knowledge, its emotional impact on her,
and the trial testimony concerning Elmer
Pratt's leadership role in the Black
Panther Party had potentially devastat-
ing implications. In @ case concerning
a violent series of events in which the
Black Panther Party plaved a key role,
see Ct. App. Opinion at 3-6, the defen-
Gant, though he e¢didc not know it, was
being judced by a juror greatly d¢is-
tressec by memories of the violent death
of her good friend at the hands of a
person she knew to be a Black Panther
Party member -=- a person shown by trial
testimony to be a leader of that party.
Extraordinary insight is not required to
perceive the potential harm to Peti-
tioner Spain if Ms. Fagan's personal
experience, rather than the evidence at
trial, were permitted to determine
jurors' assessment of the defendant’
wn
guilt or innocence. Té Spain or his
lawyer had been made aware of the content
of the communications between Juror Fagan
an opportunity to explore anc attempt to
.
limit this potential harm.
‘ ,
Apparently concecing that Ms.
~ - _ = =) _ nA “ne = _- ~ 9 Ar
Petitioner Spain, Responcents acknowlecce
- -h = —- = ei An ty 1A
tnat tne better course crf action woulc
= = = = - iA +s? ;
lave ceen co concucte a@ migcgetriaz vOolr
Aie- of We Yr _— “A [— _ Ars -*rAs rar ore
cire — ~e* raga! -~ expiore _ ~ YY.
Sations with Judge Broderick. Respon-
Gents' Memorancum of Points ane
the Respondents, however, failure tc
follow the concededly preferable course
was harmless because Ms. Fagan testified
post-trial that she was no
cv
Oo
~
ity)
“
mo
a,
uo
<
er
oy
@
67.
information she possessec or its effect
upon her.
Respondents correctly observe that a
juror is permitted to testify at a post-
<
trial hearing convened to determine
whether juror partiality played an
impermissible role in the outcome of a
juror may not testify post-trial about
the mental process by which she arrived
at a verdict. Mattox v. United States,
146 U.S. 140, 149 (1892); Fed. R. Evid.
606(b); People vy. Fall, supra, 108
Cal.App.3d at 378-80; Cal. Evid. Code
§ 1150(a). When Ms. Fagan's post-trial
testimony is examined in light of this
rule restricting juror impeachment of a
verdict, it is clear that, even relying
a
Fe)
reasonable doubt
a
«
beyond
prove
-
cannot
errors that
5 |
~
constitutiona
ne
t
that
juror
U0
RFandbook on
ne sance-
-*
-
ion
-
—
Gistine
@
-*
ws
.
ale
os
‘
concerns a
testimony in
juror
-
a
7
-
connection
articulated
That distinction,
69.
Mattox,24/ is embodied in modern eviden-
tiary rules. Rule 606(5) of the Federal
Rules of Evidence provides that
Upon inguiry into the valid:
i
4
c
"
O
"
of a verdict ...
may not testify as to any
matter or statement occurring
14. The Supreme Cou
Grew the distinction betw
anc inadmissible juro
follows:
[T]he evidence of jurors as to
the motives and influences
which affected their delibera-
tions, is inadmissible either
to impeach or to support th
verdict. But a juryman may
testify to any facts bearing
upon the guestion of the
existence of any extraneous
influence, although not as to
how far that influence operated
upon his mind.
Ié. at 149. Compare Fed. R. Evid.
: see also Cal. Evid. Code
juror's mind or emotions as
influencing him to assent to or
dissent from the verdict ...
Or concerning his mental pro-
attention or whether outside
brought to bear upon any juror.
See United States v. Moten, 582 F.26 654,
664-65 [s. Cis. 19786). California
Evidence Code Section 1150(a) similarly
distinguishes between independently
ascertainable events and the deliberative
process of the jury in cetermining the
admissibility of evidence offered to test
/
/
eo eee ne
71.
in
, ' 5 |
the validity of a verdict. +2/
The fact end content of Ms. Pagan's
conversations with Judge Broderick
Clearly fall into the category of mat-
i 2
Gity of a verdic
wise acmissible e
or conduct, conditions, or
events occurring, either within
or without the jury room, of
such a character as is likely
to have influenced the verdict
imoroperly. No evidence is
admissible to show the effect
of such statement, conduct,
condition, or event upon a
juror either in influencing him
to assent to or dissent from
the verdict or concerning the
mental process by which it was
determined.
See People v. Hall, supra, 108 Cal.App.
at 376-360.
72.
marginally relevant to the trial, see
C.T. 24013:12-17, 24014:1-7; Ct. App.
Opinion at 13-14 and 18-19, the potential
prejudice to Petitioner Spain did not
arise from Elmer Pratt's connection to
*he 1971 events at San Quentin but from
Ms. Fagan's knowledge of and reaction tec
matters not in evidence at trial. See
Giscussion, supra, at pages 25-26 of this
Opinion. The dancer that the verdict
might have been improperly influenced by
what Ms. Fagan knew, how it affected her,
and what the other jurors knew about the
death of Ms. Fagan's friend certainly
brings these matters within the scope of
those that may be the subject of post-
trial juror testimony in either
California state or federal court.
In neither state nor federal court,
however, could Ms. Fagan or any other
juror testify about how or whether the
circumstances of Carolyn Olsen's death
73.
influenced the decision to assent to the
verdict. Cal. Evid. Code § 1150(a);
Fed. R. Evid. 606(b). See also Cs.
App. Opinion at 17 (some of Ms. Fagan's
testimony at the motion for a new trial
insofar as it relates to her mental
attitude in arriving at the verdicts may
well have been inadmissible). Once it
is determined that prejudicial informa-
tion was improperly brought to the
jury's attention, the reviewing court
must decide whether the impropriety was
harmless in its effects on the jury's
Geliberations. That decision must he
made without reference to testimony from
jurors about what influenced their
verdict.
The Respondents' observation that a
juror may testify at a post-trial
hearing concerning juror partiality is
accurate but inapposite. Matters within
a juror's personal experience that
74,
relate to issues generally raised by all
Criminal trials are far different from
specific information implicating the
merits of a particular case but not
introduced in evidence. Thus, that a
juror may testify at a post-trial hearing
at which a court seeks to determine
whether juror partiality played an imper-
Missible role in the outcome of a trial,
. 2 : —— "Aw
Smith v. Phillips, supra, 102 S.Ct. at
944046, does not mean that a juror may
testify as to whether pre
mation concerning the merits of a case
and improperly brought to the attention
of the jury influenced the outcome of th
jury's deliberations.+2/
| ie
16. Smith v. Phillips, supra, 102
S. Ct. 940 (1582) provides a useful
contrast to the instant case. In Smith,
a criminal defendant contended that he
had been denied Due Process because,
during his state court trial, one of the
jurors in his case applied to the
prosecutor's office for a job as an
investigator. Though the juror's
(Footnote continued on next pace.)
This limitation on matters to which
@ juror may testify post-trial com-
pletely undermines the Respondents’
contention that Petitioner Spain waived
Footnote 16 continued:
interest in a federal law enforcement
Career was revealed and thoroughly exam-
ined by defense counsel during initial
voir dire, ic. at 943-44 n. 4, the fact
of the application was not brought to
the trial court's attention until some-
time after the verdict was rendered.
The trial court held ae post-trial
hearing on a motion to set aside the
verdict at which the errant juror
testified. The trial judge CGenied the
motion to set aside the verdict, finding
that the juror's action did not reflect
an inability to consider the guilt or
innocence of the defendant solely on the
evidence. The federal district court
issued a writ of habeas corpus, imputing
juror bias from the circumstances,
though unable to find sufficient evi-
dence of actual bias on the juror's
part.
Rejecting the use of implied juror
bias as grounds for requiring a new
trial, the Supreme Court reversed. The
Court observed that neither the federal
Gistrict nor the federal circuit court
took issue with the trial court's
findings, and stated that
(Footnote 16 continued on next page.)
76.
any challenge he might have had basec on
juror contamination by failing to call
Footnote 16 continued:
Due process means a jury cap-
able and willing to decide the
case solely on the evidence
before it, and a trial judce
ever watchful to prevent prej-
udicial occurrences and to
Getermine the effect of such
occurrences when they happen
- e« « [A] hearing suc!
=
conducted [by the t court]
here is sufficient to decide
allegations of juror par-
tiality. ..
102 S. Ct. at 946.
The contrast to Peti
case is striking. As poin :
text, the matter to be resolved at
post-trial hearing was quite different in
Smith from that in the instant case. The
Only issue in Smith was that of juror
partiality based on juror conduct unre-
lated to the merits of the case against
the Gefendant. Furthermore, the sequence
of events in Smith gave rise to a very
Gifferent constitutional claim from those
involved here. In Smith, as soon as the
information about Possible juror bias
came to light, a hearing was conducted
with the defendant and his counsel pre-
sent and participating. The only issue
at that hearing was juror partiality and
its Due Process implications, and the
(Footnote continued on next page.)
any challenge he might have had based on
juror contamination by failing to call
other jurors to testify at the post-
trial hearing. It is clear from the
record of the post-trial hearing that
Ms. Fagan communicated the fact of her
friend's death at the hands of lmer
Pratt to other jurors. F.App. 5482:2-<3;
C.T. 23971:28-23972:1. These other
Footnote 16 continued:
mature of the initial voir ire con-
cerning the juror's interest in a law
enforcement career mace _ th juror's
post-trial testimony virtually cumula-
tive. There was thus no ex parte com-
munication in Smith on which a claim cf
deprivation of the right to presence or
the right to counsel could be based, and
no revelation of significant information
concerning the merits of the case that
was not disclosed at the initial voir
dire. The harmlessness of the juror's
conduct in Smith could be determined
post-trial, and no harm independent of
that conduct was alleged. In the case
before this Court, the failure to the
trial judge to conduct a mid-trial voir
dire of Ms. Fagan gave rise to constitu-
tional violations not subject to cure by
a post-trial hearing.
ee
78. &
jurors, if called, could not have testi-
fied whether or to what extent this
information influenced their respective
Gecisions to assent to the merdicts.
Cal. Evid. Code § 1150(a); Fed. R. Evid.
606(5). Petitioner Spain raisec the
question of juror contamination both at
the trial court and the state appellate
court levels. C.T. 23985:11-15; Ct. App.
tions on juror postetrial testimony,
more to preserve his claim of juror
contamination.
To the extent that the constitu-
tional errors that occurred here impli-
cate the Due Process right to be tried by
a panel cf twelve impartial jurors, this
Court's consideration of that issue thus
is limited by the restrictions imposed on
juror testimony about the deliberative
process. These restrictions require the
roe a |
79.
application of an Djective test to
evaluate the effect that the prejudicial
information brought to the jury's atten-
tion by Ms. Fagan had on the outcome of
the trial. See United States Vv.
Armstronc, 654 F.26 1328, 1333 n. 2 (9th
Cir. 1981) and Miller v. United States,
403 F.2d 77, 83-84 n. 11.=——’ Uncer the
objective test, this Court must assess
for itself the likelihooe that the
information known and conveyec by Ms.
Fagan would affect a typical juror. Id.
Were this a case involving a
straightforward Due process Claim,
Getermination of the harmlessness vel
non of the error would be dictated by
Eve Though these cases involved
federal court trials at which jury con-
tamination occurred, the objective test
therein applied derives from the Federal
Rules of Evidence which are also
controlling in federal habeas corpus
cases. See Smith v. Cupp, 457 F.2d
1098, 1100 (9th Cir.), cert. denied, 409
U.S. 880 (1972); see also Fed. R. Evid,
110l(a) and (e).
80.
"the nature of what [was] infiltrated and
the probability of prejudice.” United
States v. Love, 535 F.2d 1152, 1156 (9th
Cir.), cert. denied, 429 U.S. 847 (1976).
The nature of the information infiltrated
and the possibility of pre
posed have already been cdiscussecd at
lenath and need not be reiterated. Con-
sidered alone they would be sufficient to
raise a reasonable possibility
error materially affected the verdict anc
thus to compel issuance of the writ
sought here. Hinman v. McCarthy, supra,
676 F.2d at 349-50. Though tne
California Court of Appeal concluded that
the fact that Petitioner Spain was
acquitted on some counts shows that the
jury was not biased, Ct. App. Opinion at
17-18, that very fact is subject to pre-
Cisely the opposite inference. Spain was
the only defendant who was a member of
the Black Panther Party and the only
defendant convicted of conspir#¢y and
murder. The only counts on which Spain
was convicted were those with which he
was connected, not by any direct par-
ticipation in the acts of violence at
San Quentin, but by his association and
alleged conspiracy with George Jackson,
@lso a Black Panther. All of the other
Cefendants were acquitted of the con-
spiracy counts and the related substan-
tive crimes. This pattern of convic-
tions and accuittals, viewed from the
perspective of the dangers posed by Ms.
Fagan's personal exposure and reaction
to events linking the Black Panther
Party to other violent crime, certainly
raises a reasonable possibility that the
information knowm by Ms. Fagan and com-
municated to other jurors influenced the
verdicts.
This case, however, goes far beyond
a straight-forward Due Process claim
oo
to
.
based on extra-judicial influences on the
jury. The nature and circumstances of
these right to presence and right to
counsel viclations prevent this Court
from concluding beyond a reasonable doubt
influenced the
"
oO
rh
ct
r
om
om
"
|
oO
"
“”
that neithe
verdict rencerec against Petitioner
Spain. Chapman v. State of California,
Supra, 386 U.S. at 24.
trial hearing conducted in this case.
Even putting aside the limitations on
post-trial juror testimony already
aces 26-29 of this
Giscussed, supra, at
'O
Opinion, the function that was served by
Spain and his counsel at the hearing on
the motion for a new trial was far dif-
ferent from the one they would have per-
formed at a mid-trial voir dire of Ms.
Fagan. At the time the conversations
83.
occurred, Judge Broderick perceived no
connection between what Ms. Fagan told
him and the issues in the case being
tried. C.T. 23920:11-17; t. App.
Opinion at ll. Accordingly, the trial
juege's questions to Ms. Fagan went no
further than to inquire of the juror
whether the testimony about her friend
would affect her disposition toward the
case. If Petitioner Spain and his coun-
sel had been informed of the fact and
general content of the communications
between Ms. Fagan and the trial judge,
they would have been able to question
her in depth about the relationship
between her personal experience and her
attitude about the case on which she was
sitting. It is not unreasonable to
assume that such questions, posed at a
time when the emotional state prompting
Ms. Fagan's contacts with the judge was
still evident, might have elicited from
84.
Ms. Fagan different responses from those
given at the post-trial hearing.
Even if a mid-trial conference with
Spain and his counsel participating had
not resulted in removal of Ms. Fagan from
the jury, the defense team would have had
an opportunity to reassess the evidence
they wished to present in light of what
they learned about Ms. Fagan's exposure
to the Black Panther Party. This oppor-
tunity, once lost, could net be regained
by a post-trial hearing. Similarly, the
chance to keep Ms. Fagan's information
from reaching other jurors was a fleeting
one not susceptible to recapture after
the trial.
These irretrievable opportunities,
if exercised by the Petitioner, certainly
had the potential to influence the out-
come of the trial. If mid-trial voir
dire by Spain and his counsel had uncov-
ered bias requiring replacement of
4 Saw
85.
-
Ms. Fagan by an lternate juror
untainted by personal exposure to Black
Panther Party violence, it cannot be
concluded beyond a reasonable doubt that
the outcome of the trial with respect to
Petitioner Spain would have been the
same as it was with Juror Fagan sitting
on the jury. If, despite a mid-trial
voir dire, Ms. Fagan had remained on the
jury, but, based on what was learned of
Ms. Pagan's reaction to the death of her
friend, the Petitioner and his counsel
had decided not to introduce evidence
stressing Spain's membership in the
Black Panther Party, it cannot be said
with confidence that the pattern of ver-
Gicts and acquittals would have been the
same. It also cannot be concluded that
the verdicts on the charges against
Petitioner Spain would have been the
same had other jurors not been informed
that a Black Panther member had killed
86.
a good friend of one of their fellow
jurors, a fellow juror with whom they
were in almost constant contact for over
a year. Thus, the post-trial record not-
withstanding, a reasonable possibility
certainly exists that the failure to pro-
vide for the presence of Spain, or at
least his counsel, at a mid-trial voir
Gire of Ms. Fagan affected the outcome of
the case against the Petitioner.
As the foregoing alanysis reveals,
the very circumstances that require auto-
Matice reversal in this case, see this
Opinion, supra, at pages 19-21[,] would
require reversal if harmless error were
the applicable standard of review. The
violation of Petitioner Ssain'’s right to
be present anc right to counsel leave
this Court with no choice but to issue
the writ of habeas corpus sought by the
Petitioner.
87.
B. Shackling of Petitioner Spain.
Because the violation of Petitioner
Spain's Sixth Amendment right compels
issuance of the writ, we need not reach
the constitutional issue raised by
Spain's shackling claim. See New York
City Transit Authority v. Beazer, 440
U.S. 568, S582 (1979). Nor are we
required to decide whether that claim,
standing alone, mandates issuance of the
writ. We observe, however, that the
shackling of Petitioner Spain in the
extreme manner used in the trial court
appears to violate the right to a fair
trial that is a fundamental liberty
secured by the Fourteenth Amendment.
Drope v. Missouri, 420 U.S. 162, 172
(1975).
Shackling a Gefendant in the
courtroom is widely recognized as preju-
Gicial because it infringes on the
accused's richt to the presumption of
88.
innocence. Kennecy v. Caréwell, 487
F.2d 101 (6th Cir. 1973), cert. denied,
416 vu.S. 959 (1974); United States v.
U.S. 869 (1968).22/ See also Illinois
v. Allen, 397 U.S. 337, 344 (1970). The
presumption of innocence, though net
articulated in the Constitution, is a
basic component of a fair trial under
our system of criminal justice.
Estelle v. Williams, 425 U.S. 501, 503
(1976).
The right to the presumption of
innocence at trial is not, however, an
18. Thouch several of these cases
were decided under the supervisory power
of the federal appellate courts in
federal criminal cases, the principles
relied upon are equally applicable in
the constitutional context presented
here.
89.
absolute right. Under certain circum-
stances, it must give way to the court's
concern for the safety of other court-
room participants, United States v.
Samuel, supra, 431 F.2d at 615, or to
the neec for an orderly trial, see
Kennecy v. Cardwell, supra, 487 F.2d at
107. The question is whether, under the
circumstances of the instant case, the
Spain were justified.
From the moment f his indictment,
every state court appearance made 5b
Spain was made under the security
arrangements described in Part I. of
this Opinion. See above at page 6.
Based on Court Exhibits 17 and 18, as
well as Judge Broderick's statements
prior to sentencing, we must infer that
the decision to shackle the defendants
throughout the trial was based on the
nature of the offenses charged, the acts
Re a
90.
of the defendants during pre-trial and
trial proceedings, and the security inci-
Gent reports concerning the behavior of
the defendants at San Quentin, compiled
in Court Exhibit 17.
_ : . < \ ee ¢ WwW
The seriousness of the offenses w
~~“
not be underestimated. The events
leading to the indictment involved a
violent escape attempt in which five
people cied. Those events, however,
cccurrecd almost four years before the
trial commenced. In the interim,
tion in such misconduct appears to have
been limited to one altercation resulting
in his removal from the courtroom. C.T.
899, 900.
With respect to the trial itself,
Court Exhibits 17 and 18 provide this
Court with a unique opportunity to view
both the scope of the security measures
in use and the conduct of the Petitioner
and his co-defendants. The security
measures, including the physical
restraints placed on the defendants,
urtroor
were visible toc
re)
4
'o
0)
"
ct
te
e)
| ood
ze)
©
=]
ct
“”
See Court Exhibit 18 ané C.T. 24005:2-9.
4
he trial occupied 203 court days, not
including twenty-four Ga
deliberations, and took place over a
seventeen month period. During this
period, Petitioner Spain engaged in the
fourteen incidents of misconduct listed
in Part I. of this Opinion at pages 7-9.
Only seven of those fourteen incidents
occurred in the courtroom and only three
occurred while the jury was present.
It is obviously impossible to
Giscern whether and to what extent
_ ea
Petitioner Spain's misconécuct was
prompted by or contributed to by the
physical restraints under which he was
placed. Throughout the pre-trial ane
trial proceedings, however, Spain, as
well as other defendants, repeatedly
requested the opportunity to appear
unshackled. In lisht of the other
security measures in use at trial, the
failure to provide such an oppertunity is
of grave concern. See Illinois v. Allen,
Supra, 3297 U.S. at 346.
Because the shackling of riminal
Gefendants is regardec as a last resort,
id. at 344, the use of such a procedure
is justified only where no less drastic
alternative will suffice. Kennedy v.
Cardwell, supra, 487 F.2d at lll;
United States v. Escuer, 45° F.2d 431,
433 (7th Cir. 1972), cert. denied, 414
U.S. 1006 (1973); United States ex rel,
Boothe v. Superintencent, 506 F. Supp.
93.
1337, 1341 (E.D.N.Y.), rev'd on other
grounds, 656 F.2d 27 (2d Cir. 1981).
This case involves the uninterrupted
use of maximum plysical restraints on a
Gefendant whose disruptive conduct can
best be characterized as minor. When
viewed in light of the other security
precautions in place throughout the
trial, the failure to use a less drastic
alternative means of restraint might
well mandate reversal were this Court
recuired to resolve the shcakling issue.
III. CONCLUSION
Only with the greatest reluctance
will this Court or any other federal
court intrude upon e2 state criminal pro-
ceeding. See Engle v. Isaac, supra, 102
S$. Ct. at 1570-72. However, the protec-
tion and vindication of federal consti-
tutional rights requires that considera-
tions of comity give way to the writ
that stands as "a bulwark against
94.
convictions that violate ‘'funcamental
fairness.'" Id. at 1570. Petitioner
Spain's conviction, obtained in violation
of his Sixth Amendment rights to presence
and counséi, violates fundamental
fairness.
The petition for writ of habeas
corpus is granted. California shall com-
mence retrial of the petitioner within
ninety (90) days or he shall be released
from custody with respect to the convic-
tion at issue. The Court is aware that
the Petitioner may face continued incar-
Cceration stemming from another conviction.
SO ORDERED.
DATED: June 29, 1982
TEELTON £. HENDERSON
UNITED STATES DISTRICT JUDGE
IN THE COURT OF APPEAL OF THE
STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT,
DIVISION THREE
PEOFLE OF THE
STATE OF CALIFORNIA,
1 Crim. 16126
Plaintifé and
Respondent, (Sup.Ct. No. 4094
vs.
JOHNNY LARRY SPAIN,
HUGO A. PINELL
and DAVID JOHNSON,
Defendants and
Appellants.
ee ee eee ee ee ee
Appellants Spain, Pinell, and
Johnson, three other state prisoners,
and an attorney (who remains a fugitive
from justice) were charged by a multi-
count indictment with offenses arising
from a disturbance at San Quentin Prison
on August 21, 1971. The disturbance was
triggered by prisoner George Jackson who
was killed while fleeing from the
prison's "Adjustment Center." Also
killed were three correctional officers
ot ‘ bs z.
a m2 ag
_ A et oe
a ‘ —~ ay > 5. ee * i ees Se
o2=
and two other prisoners.
Lengthy and various pre
ceedings were followed by a trial by jury
which, after three months of
tion, began with the
dence in July 1975, and conclude
final arguments in July 1976.
Geliberated for 24 days befor
appellants guilty as set forth
acquitting their codefendants.
Appellants Pinell and Spain
tenced to life imprisonment
already serving an indeterminate sent
of a term of years to life and Spain a
life term). Appellant Johnson, who had
Spent more time in custody awaiting trial
than the determinate sentence for the
crime of which he was
granted probation.
Spain
Johnny Larry Spain was found guilty
of the first degree murders (Pen. Code,
o3-
187) of two of the three correctional
officers who were killed, and conspiracy
to escape by force or violence (Pen.
Code, §§ 182, 4530, subd. (a).) There
was no substantial evidence that Spain
personally committed the murders;
instead, the evidence pointed to George
Jackson as the killer. Spain's guilt of
the murders was based on a theory of
vicarious liability: that the murders
were the probable consequence of his and
Jackson's conspiracy to escape. His
acquittals of the murders of the third
correctional officer and of the priso-
mers were consistent with this theory,
the evidence indicating that it was
someone other than Spain or Jackson who
killed the third officer and the priso-
ners.
Because of the manner in which the
-4-
i/
indictment was framed, it was necessary
(and the trial court so reled and
instructed the jury) for the prosecution
to prove that before August 21, there was
a conspiracy between Jackson and one
Stephen Bingham to effect Jackson's
escape and that on August 21, Spain
joined that conspiracy. In other words,
if there were no conspiracy between
Jackson and Bingham, then there was no
conspiracy for Spain to join, he was not
guilty of conspiracy and, therefore,
1. “The Grand Jury of the County of
Marin . . . accuses Stephen Mitchell
Bingham, . . . John L. Spain fet al.],
of a felony, to wit: conspiracy ... in
that (a) Stephen Mitchell Bingham and
George Lester Jackson, now deceased, did
prior to, and continuing on or about
apeest 21, i972 . - -« Conspirce . «'s
together and with other persons whose
mames are unknown to the Grand Jury to.
- « commit felonies, to wit: (1) The
escape by force or violence ... of
George Lester Jackson and others...
{etc. (describing other felonies)}. (b)
On oc about August 21, 1971, . «
defendant ... John L. Spain... did
(Footnote 1 continued on next page).
not legally accountable for the murders.
The evidence that Jackson had
planned, and with the assistance of a
person or persons outside the prison
prepared .to escape, was clear. There
was evidence that Spain was privy to
these plans and assisted these prepara-
tions. But as to the central fact
necessary to be proven, that Jackson and
Bingham conspired, the evidence, while
sufficient, is less compelling.
The prison authorities were
aware long before August 21, by virtue
of a letter in Jackson's hand which had
fallen into’ theirs, that he had
encouraged others (not including
Footnote 1 continues.
join the conspiracy of Stephen Mitchell
Bingham and George Lester Jackson and
ether persons ... and did . « s«
conspire . . . with Stephen Mitchell
Bingham and George Lester Jackson, and
among themselves, for the purpose of ..
° commit[ing] the felonies above
described... .”"
=6<
Bingham) to smuggle weapons into the pri-
son and to him and otherwise to assist
him to escape. After Jackson's death,
another letter in his hand was found in
the Adjustment Center; some references in
the letter suggest it was written in or
about early August 1971. The letter
reveals that Jackson and “the party” were
planning an imminent escape and a variety
of violent escapades, that some prisoners
had “thrown water” on the plans and, most
Significantly, that Jackson was already
Stockpiling weapons and had a gun.
On August 21, Jackson had _ two
intended visitors, Bingham and a "legal
investigator," Vanita Anderson. The
latter brought into the prison a small
tape secorder. She was frustrated in her
2. The letter stated: "They know
et so it's a questicn of them facing
pigs guns they think or facing mine.
they re — — a shakedown so that
mine . > . .
-Jo
attempt to see Jackson but, under cir-
cumstances which are ambiguous as to
whether there was a prearrangement bet-
ween ena gave the recorder to
Bingham just Sefore his visit. Jackson,
his hair, Bingham, Anderson, and her
tape recorder were, according to the
persons responsible for ensuring that
they carried no arms, closely searched
before Jackson and Bingham's visit.
Nevertheless, Jackson emerged from the
visit with a bullet clip in his hair
(acutally an "Afro" wig) and an automa-
tic pistol underneath it The
prosecution's theory was that Bingham
brought Jackson the gun in the tape
recorder.
3. The officer in charge of the
waiting room, who was aware that
Anderson had a tape recorder, asked
Bingham if he intended to use it “and he
said no, and .. . Vanita Anderson...
asked him if he wanted to use hers, and
he indicated that he did.”
The security arrangements relative
to the interview were such that Jackson
could have removed an object from the
tape recorder without Bingham's active
cooperation, but it is difficult to see
how that act could have been performed
without Bingham's knowledge. That
knowledge would not be sufficient to make
Bingham a party to a conspiracy but it
would be sufficient to explain his disap-
pearance upon leaving the prison.
When Jackson returned to the
Adjustment Center from the interview, the
bullet clip was detected; whereupon, he
removed the gun from under his wig and
forced one of the four correctional offi-
cers, who were present to open the cells
of other prisoners, many of whom emerged
and some of whom -- including, admit-
tedly, Spain and Pinell, and, as shown by
sufficient evidence, Johnson -- played an
active role in binding the officers and
-9-
placing them in cells where they were
assaulted. During the turmoil, two
other officers were admitted to the
Adjustment Center and subjected to simi-
lar treatment. An officer acccmpanying
the last to be admitted raised an alarm.
Jackson and Spain then fled from the
Adjustment Center. Jackson was shot and
died instantly. Spain was located in
some shrubbery in which he had taken
cover. Order was restored in the
Adjustment Center. One officer had bled
to death from a neck wound; two had been
shot to death; three others had their
throats cut but survived; two prisoners
Gied from similar wounds. A number of
knives and improvised knives were found
in various locations. No firearms were
discovered except Jackson's pistol.
Spain is a black and was in August
1971 a member of the Black Panther
Party. Jackson was also a member of the
|
|
ra |
«10-
party, and it is reasonably probable that
"the party” of which he spoke in the
letter which referred to his gun and his
plan to escape was the Black Panther
Party.
The district attorney argued to the
jury that the Black Panther Party had
helped to smuggle weapons or ammunition
to Jackson and implied that Spain's party
membership was evidence “hat he, too, was
"involved in” the escape plan and
"working with" Jackson.
Pinell
Hugo A. Pinell, nicknamed “Yogi,”
was found guilty of two counts of assault
with a deadly weapon on nonprisoners,
Namely, correctional officers,
Breckenridge and Rubiaco, by a life pri-
soner. (Pen. Code, § 4500.)
The evidence showed that while
Officer Rubiaco was opening cells,
Pinell, armed with a small knife, forced
a
Officer Breckenridge into a tier and
ordered three prisoners to take him to a
cell. Jackson and Spain forced Officer
Rubiaco to join him. Both officers were
bound, and for a certain period to time,
Placed face down on a bunk or made to
wear a pillowcase so that their vision
was interfered with. Rubiaco's neck was
cut twice by an unknown person and a
third time by Pinell. The last wound
was caused not by a knife but by an
object like a razor blade embedded in a
toothbrush, which was later found in the
cell.
Breckenridge saw Rubiaco's throat
being cut but could not tell by whom.
At the time or shortly before, he could
hear Pinell's voice, and said to him:
"There is no need for this, Yogi. Don't
ge. it Yegi.* A voice which he
recognized as Pinell's replied: *You
don't know who this is." Within seconds
-12-
of the infliction of the third wound on
Rubiaco, Breckenridge was stabbed twice
in the neck. Later, he was stabbed a
third time by an unidentified assailant.
Johnson
David Johnson was identified by
Office Breckenridce as one of the three
prisoners who was ordered by Pinell to
take him to the cell.
Breckenridge testified that Johnson
and a codefendant (who was acquitted)
bound him. Some time after Breckenridge
was stabbed twice, he heard the codefen-
Gant say, "These pigs aren't dead yet,"
and a voice, which he believed was
Pinell's say, “Go in and strangle them.”
Johnson applied a ligature to his neck
for a few seconds but released it when
Breckenridge pretended to expire. Por
this action Johnson was found guilty of
assault by means of force likely to pro-
Guce great bodily injury. (Pen. Code, §
4501.)
Although Breckenridge testified
that the third stab wound to his neck
(which occurred after Johnson strangled
him) caused blood to obscure his vision
and a state of shock to ensue, there was
medical evidence that it was one of the
first two wounds. Experts called by the
codefendant testified that the con-
sequences of the wound would include an
impairment of Breckenridge's perception
and mental functioning (and therefore
his ability to recognize Johnson). The
reliability of Breckenridge's iden-
tification of Johnson was also
challenged on the grounds of _ the
officer's limited prior association with
the prisoner and a suggestive pho-
tographic identification process.
Johnson and the codefendant offered, but
were not allowed, to prove by the testi-
mony of an expert in “eye witness
@14<
identification," a psychology professor,
that the reliability of such iden-
tification is adversely affected by such
factors as a difference in race between
the witness and the person to be iden-
tified.
Johnson was not a member of the Black
Panther Party.
I. Juror Fagan's Meetings
With the Judce
The following facts form the basis of
appellant's contention that violation of
their constitutional rights at trial by
an in camera meeting between the judge
and a juror requires reversal of their
convictions.
Patricia Fagan had from the age of
Six or seven been a "good," “close,” but
not “best” friend of Carolyn Olson.
Pagan's and Olson's mothers were "very
good" friends. Pagan cared for Olson's
Gaughter on a daily basis while Olson ~as
~1, $=
attending U.C.L.A. in about 1962. At
this time, the two women rarely visited
socially. Fagan knew Olson's husband.
In 1968, in Santa Monica, Olson was
killeé and her husband wounded. At the
time, Fagan was living in Concord. She
learned of Olson's death a couple of
weeks later. The circumstances of the
killing, as known to her, were that
Olson and her husband were playing ten-
nis when two people damanded their
money, ordered them to lie down, and
shot them. In 1970, Elmer "Geronimo"
Pratt was arrested for the murder and as
a member of the “L.A. 18," a group of
Black Panther Party members wanted in
connection with a shoot-out with the Los
Angeles Police. A month or two after
Pratt's apprehension, Fagan heard that
Olson had been killed by two persons,
members of the Black Panther Party, one
of them a leader.
-16<
Fagan, during the voir dire of the
venire, was shown a videotape of the
trial judge's admonishing prospective
jurors of the importance of revealing any
association with crimes of violence and
attitudes toward radical groups, specifi-
cally the Black Panther Party. Fagan was
asked:
"Q. How about crimes violence? Any
Knowledge of that at all?
"A. No.
"Q. Witness, victim, otherwise?
"A. No.
"Q. Have you heard of the
Black Panther Party?
"A. Yes.
"Q. Do you associate the
Black Panther Party with
any form of violence in
your own mind?
"A. Be.*
ake
During the course of the trial,
Spain called as a witness Louis Tackwood
who testified to a suprosed plot on the
part of various law enforcement officers
to encourage an attempt by George
Jackson to escape and by a group fo
Panthers to rescue him, whereupon all
would be ambushed by officers. Tackwood
mamed one Pratt as the leader of the
purported rescue group and identified
him as a police informant.
On cross-examination, Tackwood was
impeached by being asked whether he knew
that Pratt had been arrested in 1970 for
the murder of a Santa Monica woman, had
been convicted of the charged in 1972,
and had been in custody continuously
during the time when he was supposedly
involved in the rescue plot.
During the afternoon recess on the.
Gay of the above cross-examination,
according to Pagan, she “went to the
os
«Ifa
chambers of Judge Broderick and told him
a friend of mine had been murdered in
Santa Monica by a Black Panther Party
member, but that I did not know for cer-
tain that the two incidents were the same
and that if the matter were gone into
further, I might start to cry in the
courtroom. The judge indicated that it
was unlikely that the two incidents were
identical and said something to the
effect that I should not concern myself
with it. I then left his chambers."
The judge's recollection of the inci-
Gent was “in substantial agreement with
Mrs. Fagan's.' He “got the impression
that ["if . . . Pratt's killing of her
friend was gone into in the evidence of
the case"] the emotional drain on her
would be very high.” He attached "little
Significane, if any" to her association
of Pratt with Olson's murder, and told
her so and “that she should simply forget
~19<
about it." He asked her if it would
affect her disposition toward the case,
and she said that it would not.
Fagan returned home in the evening
and asked her mother, who "was up here
watching the proceedings,” but had not
attended that day, the name of the per-
son who had killed Olson. Her mother
informed her that it was Pratt.
The next day, Fagan went to see the
judge again and told him that she had
confirmed that Pratt was the killer of
her friend. She told him that if the
subject should come up again, “it would
cause me some concern for my emotional
composure in the courtroom," i.e., “if
the attorneys were going to go into it
much more thoroughly or much more deeply
e « « I was liable to start crying
° © « «” Her recollection was that "the
judge said the lawyers probably were not
going to go into that matter further and
-20-
I said something to the effect, 'O.K., no
problem, then’ ... -” The judge
recalled that he told her he didn't see
how the connection between Pratt and
Olson was "“significant™ but asked Fagan
if she felt that "it would have any
affect on her disposition towards the
case." According to the judge, "She said
that .. . she felt that if Mr. Pratt
were called to testify, that she would be
very unsettled by that.”
The judge did not hold a hearing with
regard to Fagan's communications, nor
inform the parties or their attorneys
thereof. His explanation for not doing
SO was that he didn't see how Fagan's
knowledge of Pratt's crime would have any
relation to the evidence in the case. He
admitted that the implications of
Pratt's knowledge as to her attitude
toward violence and her response to
questions on voir dire designed to elicit
——————
o2i-
expressions of that attitude “didn't
doawn on me."
No evidence was introduced that
Pratt had killed or had been convicted
of killing Olson.
Fagan, however, told other jurors
that Pratt had been convicted of mur-
dering a friend. She denied making any
Gerogatory comments about the Black
Panther Party in that connection.
The cross-examination of Tackwood
about Pratt's murder of a Santa Monica
woman and Fagan's first visit to the
judge occurred on a Thursday; her second
visit on a Friday. On Monday a witness
identified Pratt as “the leader of the
Panther in Los Angeles.”
Spain subsequently presented evi-
dence of his Black Panther Party menm-
bership and called as witnesses leaders
of the Black Panther Party, one of whom
testified briefly as to her experience
~23<
as a Panther and another as to her asso-
ciation with Spain.
Fagan's relation to Pratt and her
visits with the judge came to light after
the trial. Appellants moved for a new
trial on related grounds in the course of
which Fagan testified. In denying the
motion, the court . found that the
guestions put to Fagan on voir dire did
not call upon her to express her nowledge
of the kil.ing of Olson and of the Black
Panther Party's association with it and
that, even if they did, she did not
wilfully conceal such knowledge. With
regard to the juror's communications to
the judge, the court ruled that "the
event lacked any significance” and “had
no evidentiary qualifications” and was
handled correctly.
The issue on appeal arises at the
confluence of 4three streams of constitu-
tional doctrine, flowing from the right
en es
oF eile
ok” tot 2a ¥
@23<
of defendants in criminal proceedings to
trial by an impartial jury, their right
to be personally present during the pro-
ceedings, and their right to be repre-
sented by an attorney.
For our purposes, we assume, as all
appellants contend, that there was
federal constitutional error committed
as a consequence of the in camera con-
versations between Fagan and the trial
judge in that neither appellants nor
their counse) were seesent”
However, the matter must be put in
context and viewed from the perspective
4. The dissent seems to say that
the trial court by not including counsel
during the in-chambers discussion with
juror Fagan acted contrary to the
requirements of Penal Code section 1120.
Let us so assume. But because we agreed
that there was constitutional error,
obviously a matter of greater moment in
terms of the magnitude of the error and
the nature of the review as to rever-
sibility, we fail to perceive the rele-
vance of discussing the error in terms
of Penal Code section 1120.
@24<
of the entire case.
The incident arose more than eight
months into the trial, some three months
after the prosecution had rested and the
defense had begun the presentation of
evidence.
Tackwood's testimony, in the course
of which Pratt's name surfaced, consumed
a few days in a case that took a year of
actual trial time. |
Pratt figures, at most, tangentially
in the case. According to Tackwood, the
police and "others" plotted to induce
Jackson to escape. Pratt, a police
informant and a leader of a Southern
California Black Panther group, was to
mount a rescue operation from the outside
to aid Jackson in his escape. The final
scene of this plot would see the pclice
lying in wait, massacre Pratt, his rescue
group, and Jackson in the course of the
attempted escape. Pratt was not present
o25<
at the breakout; he was in jail and had
been there long before the breakout.
Pratt did not appear at the trial.
Neither was there any “rescue group"
present tc aid Jackson in his attempted
escape, nor did any member of that
5
alleged group appear at the sstai
5. The dissent asserts that juror
Fagan's knowledge that Pratt had been
convicted of the murder of her friend
"filled an ‘evidentiary gap' in the
prosecution's case." (At p. il.)
Unfortunately, we are not enlightened
further as to what the "“'‘evidentiary
gap'" was, before it got filled, par-
ticularly in view of the fact that the
testimony as to Pratt came in as a part
of the defense presentation. The
dissent thus seems to suggest that
unlike our characterization of Pratt as
"at most, tangentially,” relevant to the
case, Pratt and the fact of his convic-
tion were important. But, then, we are
confounded by the dissent stating that
"If Pratt's status was not relevant to
the jury's deliberations, in my view,
the potential for prejudice or bliss
looms even greater." (At Pa: Bada}
Again, unfortunately, the dessent expli-
cates no further. We return to the
dissent's “'evidentiary gap.'”
(Footnote 5 continued on next page).
As we see it, the error was
committed by the trial court in denying
appellants and their counsel the right to
be present at the conversations between
Pagan and the trial judge in order to
Footnote 5 continues.
It is an understatement to say that
Tackwood's testimony, on direct examian-
tion, strained the bounds of credibility,
but let us assume that the jury would
have believed the testimony but for juror
Fagan's knowledge of Pratt's conviction
and,d consequently, disbelieved him
because of that knowledge. What
""evidentiary gap'" was closed thereby?
Spain's convictions of murder and
conspiracy are based on a conspiracy bet-
ween Jackson and Bingham. There is no
conncection between Pratt and Bingham in
the record; none is asserted. There
is no evidence to suggest that Bingham is
an agent provocateur who lured Jackson
into the escape attempt. As to the
assault convictions, what does the Pratt
episode, from an evidentiary standpoint,
have to do with the substantive issue of
whether Johnson and Pinell committed the
assaults of which they were convicted.
The short answer is--absolutely nothing.
Thus, if there were some “'‘evidentiary
gap‘ in the prosecution's case," for cer-
tain, it was not "filled in" by juror
Fagan's knowledge, gained outside the
record, of Pratt's conviction.
* > .
ee. ee o Aes ew . ~*~ oe
-2J<
ascertain whether, as a result of the
Pratt murder of Fagan's friend, Fagan
would be prejudiced or biased against
eebetlents.©|
The bias or prejudice might have
arisen because Pratt was allegedly a
membr of the Black Panthers = and
appellant Spain was a Black Panther.
Appellants Johnson and Pinell, while not
members of the Black Panthers, were
blacks. Appellants, of course, were
entitled to 12 impartial persons, not
ll, in the determination of their guilt
6. The dissent tells us that if
the defendants and their counsel had
been present during the Fagan
questioning by the trial ocurt, “she
would have been disqualified." (At p.
5.) Further, if cross-examination of
Fagan had occurred, our brother White
States that he “would expect that she
{Fagan} would have been excused by
stipulation." (At p. 9.) We envy our
colleague's ability to predict that
which would have happened, but we
suggest it is irrelevant. The issue is
whether we reverse because of the error
that did happen.
-28=-
vel_ non. (People v. Pierce (1979) 24
Cal.3d 199, 208.)
The burden, therefore, was upon the
People to show, beyond a reasonable
doubt, that the error complained cf did
not contribute to the verdict (Chapman v.
California (1967) 386 U.S. 18), in other
words, that Fagan was not biased or
7
prejudices.”
7. There may -.well be situations
where the failure to accord a defendant
the constitutional rights involved here
sO permeate a trial as to constitute
reversible error per se. We do not per-
ceive that to be the case here.
The dissenting opinion cites two
cases of this court, People v. Locklar
(1978) 84 Cal.Apo.3d 224 (pp. 12-13) and
People v. McNeal (1979) 90 Cal.App.3d 830
(pp. 13-14), implying that we have in
this" case departed from the views
expressed in those cases.
In Locklar, as the dissent points
out, for apparently good and sufficient
reason, the attorney appearing for the
Gefendant refused to participate in any
way in the selection of the jury;
nevertheless, the trial judge proceeded
to impanel the jury. We held that to be
(Footnote 7 continued on next page).
-29-
We believe tht burden has been met. We
reason as follows:
Footnote 7 continues.
reversible error per se. We perceive a
substantial G@ifference between what
occurred in Locklar and what occurred
here. Apparently, the dissent does not.
In McNeal, while the jury was deli-
berating, it came to the attention of
the trial court that a juror had per-
sonal knowledge as to some aspect of the
case which hada “bearing on the way she
will vote.” (90 Cal.App.3d at p. 835.)
Unlike the case at bar, the trial
judge in McNeal advised counsel thereof.
The judge discussed the matter with
counsel and stated that he would not go
into the facts. The juror was brought
into chambers and counsel were present.
The judge told the juror that "we don't
want to go. into factual matters” (id.,
at p. 836) and asked several times
whether she could be fair and impartial.
Ultimately, she said "yes." The prose-
cutor suggested that the juror had evi-
Gence outside the record. The judge
then asked the juror, "'Do you feel you
could set that aside and judge the case
on the evidence?'" (Id., at p. 836.) The
juror answered that she could.
The error in McNeal was not the
absence of counsel but the failure to
find out what “facts” the juror had
knowledge of that were not in the
(Pootnote 7 continued on next page).
-30-
At the voir dire, Fagan testified
that she did not associate the
Footnote 7 continues.
record. Because of that failure, we did
not know, nor could it be known, from
the record whether the juror had
knowledge of facts aliunde the record of
a prejudicial nature. Under these cir-
cumstances, we held that it could not be
said that the error was harmless beyond
a reasonable doubt.
The dissent overlooks the crucial
Gistinction, in this aspect, between
McNeal and the case at bench, namely,
that in McNeal the record did not
Gisclose, whereas here the record does
disclose, the outside information of the
juror. The dissent states we paid "'lip
service’ to Chapman error" (at p. 14) in
McNeal because we found "no occasion to
examine and weigh the evidence in terms
of "“‘harmless error'”™ (at p. 14). It
would seem anomalous for a justice to
characterize his own opinion (White,
P.J. concurred in McNeal) as giving “'‘'lip
service'“ to a legal principle. More
important, the dissent fails to
understand that since the question in
McNeal was juror bias based on knowledge
of matters out-side the record, it did
not matter what the weight of the
inculpatory evidence in the record was
and, hence, there was no point in exa-
mining it. If it could nto be shown
beyond a reasonable doubt that the juror
was not so biased, then the judgment had
(Footnote 7 continued on next page).
=4hn
the Black Panther Party with “any form
of violence." During her conversation
with the trial judge regarding Pratt,
the court asked her if the Pratt killing
of her friend would affect her disposi-
tion toward the case and she replied
Footnote 7 continues.
to be reversed. As we pointed out in
McNeal and as we have noted above, it
Could not be shown for we did not know,
nor could we know, in McNeal, because of
the trial judge's actions, what that
knowledge was that precipitated the
problem.
People v. Sarazzawski (1945) 27
Cal.2d 7, cited in the dissent (pp.
5-6), supports our position. There, the
trial judge in impanelling a jury, told
them, in effect, that if they became the
jury and during the trial remembered
something they had forgotten during
their voir dire examination or realized
that some of their answers thereon had
been erroneous, "'it is your secret.
Don't say anything more about it.'”"
(Id., at p. 18.) The court held that
the judge's admonition was reversible
error per se, because, by the very
Mature of the admonition, “any disquali-
fication disco
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