# Petition — Rushen v. Spain > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_1178%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1983 - **Citation:** 464 U.S. 114 ## Text 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. | | 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 Panth [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_1178%3A1. Public record. Not legal advice.