# Appendix — Calderon v. Dyer

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1998
- **Citation:** 525 U.S. 1033

## Text

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IN THE SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1997

ARTHUR CALDERON, Warden, California State Prison at San
Quentin, Petitioner,

Vv.

ALFRED P. DYER, Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

APPENDIX TO PETITION FOR WRIT OF CERTIORARI

DANIEL E. LUNGREN
Attorney General
GEORGE WILLIAMSON
Chief Assistant Attorney General
RONALD A. BASS
Senior Assistant Attorney General
PEGGY S. RUFFRA
Supervising Deputy Attorney General
DANE R. GILLETTE
Senior Assistant Attorney General
Counsel of Record
50 Fremont St., Room 300
San Francisco, CA 94105
Telephone: (415) 356-6202

Counsel for Petitioner \

En banc opinion of the United States Court of
Appeals for the Ninth Circuit, filed August 6,
1998 1

Amended panel opinion of the United States
Court of Appeals for the Ninth Circuit, filed
August 19, 1997 58

Order of the United States District Court for
the Northern District of California, filed
September 23, 1992 146

Order of the United States District Court for
the Northern District of California, filed
December 12, 1994 261

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

ALFRED R. DYER,
Petitioner-Appellant,

V.

ARTHUR CALDERON, Warden,
California State Prison at
San Quentin,
Respondent-Appellee.

No. 95-99002
D.C. No. CV-89-03454-VRW

OPINION

APPEAL FROM THE UNITED STATES DISTRICT
COURT FOR THE NORTHERN DISTRICT OF
CALIFORNIA

Argued and Submitted
December 18, 1997—San Francisco, California

Filed August 6, 1998

Before: Procter Hug, Jr., Chief Judge, and James R.
Browning, Betty B. Fletcher, Harry Pregerson, Stephen
Reinhardt, Melvin Brunetti, Alex Kozinski, David R.
Thompson, Diarmuid F. O’Scannlain, Thomas G. Nelson
and Andrew J. Kleinfeld, Circuit Judges

at Eg MEAS Netty Rg isp al
4 ee é a

Opinion by Judge Kozinski; Dissent by Judge Brunetti;
Dissent by Judge O’Scannlain

COUNSEL

Jon B. Streeter, Orrick, Herrington & Sutcliffe, San
Francisco, California, for the petitioner-appellant.

Dane R. Gillette, Deputy Attorney General, San
Francisco, California, for the respondent-appellee.

OPINION
KOZINSKI, Circuit Judge:

Petitioner was convicted of murder and sentenced to
death. We consider whether he was denied a fair trial
because one of the jurors obtained her seat by lying
during voir dire.

I

In 1980 Alfred Dyer and two friends took four
hostages and drove them into the remote hills overlooking
Oakland, California. They ordered the hostages out of the
car and instructed them to lie down alongside the road.
Dyer and an accomplice then shot all four; amazingly, two
survived. Dyer admitted participating in the shootings but
argued diminished capacity.

During voir dire the jurors had been asked the usual
questions, including:

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13. Have you or any of your relatives or close
friends ever been the victim of any type of
crime? ...

15. Have you or any of your relatives or close
friends ever been accused of any offense other
than traffic cases?

Jessica Freeland, the last prospective juror to be
questioned, answered "no" to both questions. She was
named as an alternate and eventually was seated as a
juror and helped decide Dyer’s fate.

After the guilt-phase verdict, the defense learned that
Freeland’s brother Richard had been shot and killed some
six years earlier. When questioned by the trial judge,
Freeland explained that she had answered "no" to question
13 because she thought the shooting was an accident, not
a crime. The trial judge accepted her explanation. The
prosecutor-who had also prosecuted Richard Freeland’s
killer-had just turned over to the court the file in that
case. A quick review of the file would have disclosed that
the killing had none of the earmarks of an accident:
Richard, who was just seventeen, was pistol-whipped four
times and then shot in the back of the head. The
prosecutor said nothing, the judge did not examine the file
and therefore remained unaware of the facts which
undermined Freeland’s explanation. Freeland remained on
the jury, which then sentenced Dyer to death. The
California Supreme Court affirmed. See People v. Dyer, 45
Cal.3d 26, 246 Cal.Rptr. 209, 753 P.2d 1 (1988).

On federal habeas, Dyer’s lawyers conducted an
investigation of Jessica Freeland and discovered further
evidence casting doubt on her veracity. The district court
held an evidentiary hearing on the issue of juror bias but
concluded that it was bound by the state court’s finding of

impartiality and denied relief. A divided panel of this
court affirmed. See Dyer v. Calderon, 122 F.3d 720 (9th
Cir.1997). A majority of active judges subsequently voted
to accept Dyer’s suggestion for rehearing en banc.

Il

A. The Sixth Amendment guarantees criminal
defendants a verdict by impartial, indifferent jurors. The
bias or prejudice of even a single juror would violate
Dyer’s right to a fair trial. See, eg., United States v.
Hendrix, 549 F.2d 1225, 1227 (9th Cir.1977). One
important mechanism for ensuring impartiality is voir dire,
which enables the parties to probe potential jurors for
prejudice. For voir dire to function, jurors must answer
questions truthfully. Nevertheless, we must be tolerant, as
jurors may forget incidents long buried in their minds,
misunderstand a question or bend the truth a bit to avoid
embarrassment. The Supreme Court has held that an
honest yet mistaken answer to a voir dire question rarely
amounts to a constitutional violation; even an intentionally
dishonest answer is not fatal, so long as the falsehood
does not bespeak a lack of impartiality. See McDonough
Power Equip. v. Greenwood, 464 U.S. 548, 555-56, 104
S.Ct. 845, 78 L.Ed.2d 663 (1984).” Accordingly, we must
determine whether Freeland’s answers were dishonest and,
if so, whether this undermined the impartiality of Dyer’s

jury.”

1. We do not condone any lying by jurors; perjury is perjury. We
are concerned here, however, with the rights of the defendant, not
with whether the juror may be prosecuted for a deliberate lie during
voir dire. See, e.g., Clark v. United States, 289 U.S. 1, 11, 53 S.Ct. 465,
77 L.Ed. 993 (1933).

2. The presence of a biased juror cannot be harmless; the error
requires a new trial without a showing of actual prejudice. See United
States v. Allsup, 566 F.2d 68, 71 (9th Cir.1977). Like a judge who is

The state trial judge here held a brief hearing in
chambers and found that Freeland was candid and
impartial. The state clings to this finding, reminding us
that juror impartiality is a question of historical fact. See
Patton v. Yount, 467 U.S. 1025, 1038, 104 S.Ct. 2885, 81
L.Ed.2d 847 (1984). Moreover, state court fact findings
are presumed to be correct; we may set them aside only
in limited circumstances specified by statute. See 28 U.S.C.
§ 2254(d)(1)-(d)(8) (1994). Dyer argues that one of
these circumstances applies to him, namely that "the
material facts were not adequately developed" by the state
courts. 28 U.S.C. $ 2254(d)(3) (1994).

B. Freeland’s candor first came into question after
the jury found Dyer guilty of murder but before the start
of the penalty phase. Freeland’s estranged husband,
Melvin Provost, had been arrested for rape earlier that
month. Although the details are murky, it seems that Dyer
and Provost crossed paths in the courthouse jail and
Provost told Dyer that Freeland’s brother had been shot
and killed some years earlier. According to Dyer’s lawyer,
Provost said that Freeland “had expressed strong views
about that event and the circumstances surrounding it."
The court turned down defense counsel’s request that
Provost be called as a witness but encouraged counsel to
investigate.

The next morning, just before the start of the penalty
phase, the court returned to the question of Freeland’s

biased, see Tumey v. Ohio, 273 U.S. 510, 535, 47 S.Ct. 437, 71 L.Ed.
749 (1927), the presence of a biased juror introduces a structural
defect not subject to harmless error analysis. See generally Arizona v.
Fulminante, 499 U.S. 279, 307-10, 111 S.Ct. 1246, 113 L.Ed.2d 302
(1991).

3. The AEDPA does not apply retroactively to Dyer’s appeal. See
Lindh v. Murphy, --- U.S. ----, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997).

bias. The prosecutor, Jerry Curtis, explained that he was
familiar with the Richard Freeland homicide:

I remember the case of Richard Freeland as a
homicide victim, I had the case myself, and it was a
plea bargain case to a manslaughter. And it was a
case where there was some kind of an argument in a
block in front of some apartments and someone was
killed.

Curtis then handed the file over to the judge, who called
Freeland into chambers.

The judge asked Freeland if anyone in her family had
been the victim of a homicide, and this time she answered
yes. He then asked whether she was aware of any legal
action taken, civil, criminal or otherwise. Freeland
answered: "It was an accident. They didn’t let us know
when the trial was going on so we don’t know what
happened to the man that accidentally shot him." This, she
felt, justified her voir dire answer: "Well, if it was an
accident I don’t think that’s really a crime, is it?" Freeland
then explained why she thought the shooting was
accidental:

The guy is not some, you know, maniac or anything
like that. As a matter of fact, I saw him once or twice
and he didn’t look like he did this to my brother on
purpose. He was the manager of an apartment that
my brother happened to be at. It was a party going
on and he was just trying to clear everybody out of
the party because there was a fight or something, and
what supposedly happened is that the gun went off
and it happened to shoot my brother. So you can’t
hate somebody or accuse him for doing it on purpose,
or something like that. That was his-you know, that’s
what he said and, you know, we had no choice but to

believe him. He didn’t even know my brother, so he
had no reason to just shoot him for nothing. So it was
just an accident.

(Emphasis added.)

Dyer’s lawyer asked Freeland if she had spoken to
the police or to the District Attorney about the case, and
she answered no. He then asked: "And no one from your
family ever testified in court at all?" Freeland responded,
"Oh, no." The trial judge did not ask Freeland about her
husband’s statement that she had "expressed strong views"
about the shooting. Nor did he question Freeland about
the fact that her husband was then in jail, which seemed
to conflict with her answer to voir dire question 15.
Provost himself was never questioned.

On the basis of this hearing, which seems to have
lasted less than five minutes, the judge retained Freeland
on the jury: "She has explained her answer [to the voir
dire questions], and I would not characterize anything she
did or did not do as demonstrating any lack of candor, as
far as I’m concerned." Was it plausible that Freeland
could be so confused about the circumstances of her
brother’s death? Yes, the judge explained:

There’s no foundation establishing how well she
knew the brother. We have brothers and we
have brothers. We’re making a whole series of
assumptions. I don’t know, you may not know,
where the homicide occurred, how much
information she had about it, except for her
answers, and the record speaks for itself.

(Emphasis added.) Why the judge thought he could not
verify the details of the crime-even where it

occurred-when he had the casefile in his hands, is a
mystery. |

C. A court confronted witha colorable claim of juror
bias must undertake an investigation of the relevant facts
and circumstances. See 28 U.S.C. § 2254(d)(3) (1994);
Remmer v. United States, 350 U.S. 377, 379, 76 S.Ct. 425,
100 L.Ed. 435 (1956); Remmer v. United States, 347 U.S.
227, 230, 74 S.Ct. 450, 98 L.Ed. 654 (1954). An informal
in camera hearing may be adequate for this purpose; due
process requires only that all parties be represented, and
that the investigation be reasonably calculated to resolve
the doubts raised about the juror’s impartiality. See Smith
v. Phillips, 455 U.S. 209, 217, 102 S.Ct. 940, 71 L.Ed.2d 78
(1982); United States v. Boylan, 898 F.2d 230, 258 (ist
Cir.1990). So long as the fact-finding process is objective
and reasonably explores the issues presented, the state
trial judge’s findings based on that investigation are
entitled to a presumption of correctness. See Tinsley v.
Borg, 895 F.2d 520, 526 (9th Cir.1990).

As a predicate for his ultimate finding that Freeland
was not biased, the state judge found that Freeland did
not "demonstrate[ ] any lack of candor" in response to voir
dire questions 13 and 15. The judge did not explain his
reasoning fully, but his comments suggest the following
chain of logic:

1. Freeland claims she did not mention her
brother’s murder in response to voir dire
question 13 because she thought it was an
accident.

2. She would not have been aware of the
circumstances of her brother’s death if they were
not very close. ("We have brothers and we have
brothers.")

3. There is no evidence that Freeland and her
brother were close. ("There’s no foundation
establishing how well she knew the brother... I
don’t know ... where the homicide occurred, how
much information she had about it.")

Freeland’s relationship with her brother thus was the
fulcrum of the judge’s finding that Freeland was candid. If
Jessica and Richard were siblings in name only-if they
were separated at birth and lived in distant
cities-Freeland’s claim that she didn’t know exactly how
her brother died would be plausible.“ But Jessica and
Richard were not estranged; in fact, they lived under the
same roof, with their mother. As one would expect,
Freeland attended her brother’s funeral. Their mother,
moreover, testified at the preliminary hearing (there was
no trial) of Richard’s killer. At the time of the testimony,
Jessica and her mother were still living together. Other
readily available facts also suggest that the judge was
wrong to infer that Jessica and her brother weren't close.
The criminal casefile noted that Freeland was a plaintiff
in a civil suit against Richard’s killer. As a plaintiff in a
wrongful death action, Freeland claimed she had suffered
because of the death of her brother; this too suggests they
were close enough for her to know that the killer was
charged with a crime.

4. We say this only because we give very wide berth to the state
trial judge’s findings. For our part, we find it hard to believe that a
sister would be aware that her brother was killed by gunfire yet be so
unmindful of the details as to believe it was an accident. This is
especially so since Richard’s mother was alive and no doubt discussed -
the details of the killing as part of the normal bereavement process.
See Eric Schlosser, A Grief Like No Other, Atlantic Monthly,
September 1997, at 52.

10

In any event, Freeland never claimed she was
estranged from her brother or that she was unaware of
how he died. Rather, she stated several times that she
knew the details of the shooting and had reason to believe
it was an accident. See supra at 8579-80. Whether her
explanation was plausible-not whether she and her brother
were close-was the key to determining if Freeland had lied
during voir dire. The actual facts of the crime were
remarkably different from Freeland’s description: Richard
was pistol-whipped four times and shot in the back of the
head, much like Dyer’s own victims. It is inconceivable
that Freeland, living under the same roof as Richard, their
mother and two other siblings, could have been so
confused.

Are these facts the state trial judge should have
uncovered? We think so. If the judge thought that the
plausibility of Freeland’s expianation turned on how well
she knew Richard, he could have asked her. Or he could
have asked Curtis, the prosecutor. Or he could have
examined the casefile, which showed that Freeland’s
mother had testified at the preliminary hearing in the
criminal proceeding, that Freeland herself was a plaintiff
in the civil suit and that the shooter was charged with
murder.” Or he could have ordered Provost brought in
to testify as to what he knew about Freeland’s relationship
with her brother. Indeed, Provost had been reported as
saying that Freeland had expressed strong feelings about
her brother’s killing-which was not only inconsistent with

5. As the case ended in a plea bargain, the file was not very big,
so it would not have taken very long for the judge to examine it.
Nevertheless, if the judge did not wish to postpone the sentencing
hearing to make such an examination, he could have taken the matter _
under advisement and examined the file over the course of the next
day or two.

11

the nonchalance she displayed when questioned about it,
but also bespoke bias on her part.*

The judge did none of these things, leaving the matter
in doubt: "We’re making a whole series of assumptions,"
he said. But a judge investigating juror bias must find
facts, not make assumptions, and here the key facts were
easily discernible. A few questions to Jessica about her
relationship with her brother; an examination of the
casefile; a request for confirmation from the prosecutor;
an order to bring Provost into court-any or all of these
would have disclosed that Freeland knew a lot more about
her brother’s death than she was letting on. Perhaps the
judge was lulled into a false sense of security by the
prosecutor’s assurance that he was familiar with the
Richard Freeland homicide; the judge might have
understood the prosecutor’s silence as confirming that
Jessica’s explanation was p.ausible” In these
circunistances, "it was the [trial] court’s obligation to
develop the relevant facts on the record, not merely
presume them." United States v. Gaston-Brito, 64 F.3d 11,
13 (1st Cir.1995). The judge’s lack of verve in pursuing the
matter casts doubt on his findings.

6. The judge was thus wrong when he said that "the record
speaks for itself" as to Freeland’s lack of bias. Provost’s statement, as
reported by Dyer’s lawyer, was also part of the record and flatly
contradicted Freeland. While Provost’s statement, as reported, was
multiple-level hearsay, it could have been made much more definite
if Provost had been questioned about it at the bias hearing.

7. The prosecutor had an ethical obligation to bring to the
judge’s attention evidence that would cast light on the question on
which the judge focused-namely whether Jessica was in a position to
know how her brother was killed. Had this incident occurred in
federal court, we might have considered whether the prosecutor's
silence amounted to misconduct. See, e.g., United States v. Kojayan, 8
F.3d 1315 (9th Cir.1993).

12

To- warrant setting aside the presumption of.
correctness, facts left undeveloped by the state court must
be "material," see 28 U.S.C. § 2254(d)(3), not trivial or
tangential to the issue presented. Indeed, something more
than the usual meaning of "material" seems to be
required: The missing facts must be "crucial," "vital" or
“indispensable to a fair, rounded, development of the
material facts." Townsend v. Sain, 372 U.S. 293, 321-22, 83
S.Ct. 745, 9 L.Ed.2d 770 (1963); see also Thomas v. Zant,
697 F.2d 977, 986 (11th Cir.1983). What this means is that
the evidence not discovered (that an adequate hearing
would have discovered) must be so significant that a
reasonable fact-finder could have decided the bias
question differently if armed with this knowledge. In other
words, there must be a material possibility that the judge
would have made a different decision if he had been
aware of the facts in question.

Is there a material possibility the state trial judge
would have found that Freeland was not impartial had he
considered all the facts readily available to him? We
believe there is. Had he questioned Freeland about her
relationship with her brother, the judge would have
discovered that the siblings were, in fact, very close; he
would have learned that they lived in the same household
and that she attended his funeral. And, had the judge just
cracked open the casefile, he would have learned that
Freeland’s mother testified in the criminal proceeding and
that Freeland herself was a plaintiff in the wrongful death
action. All this would have cast considerable doubt on
Freeland’s explanation that she thought the killing was an
accident and could well have shaken the judge’s
confidence in Freeland’s veracity. And, once the trial
judge determined that Freeland lied about her brother’s
death, he might well have developed doubts about her
impartiality.

13

The bias hearing was deficient in other ways as well.
The trial judge left untouched Freeland’s negative answer
to voir dire question 15: "Have ... any of your relatives or
close friends ever been accused of any offense other than
traffic cases?" The judge’s failure to question Freeland
about her husband’s criminal history is remarkable
because the issue of Freeland’s potential bias arose when
Dyer and Provost met in a jail cell during the trial.
Situations where a juror’s husband lands in the same jail
cell as the defendant are sufficiently rare and troublesome
to merit a close look by the trial judge.* There may have
been a legitimate explanation for Freeland’s failure to
disclose that her husband was in jail, but the trial judge
never put her to the test. Ten years later, in her
deposition, Freeland claimed a fuzzy memory: "When I
found out [Provost] was in trouble either the case was
already over or we were already past voir dire." But
Provost had been arrested a full month before the trial,
and Freeland paid him a visit. Had she been asked about
this at the time, the date of her visit could have been
confirmed by consulting prison visitation records. Maybe
Freeland knew of her husband’s arrest during voir dire,
maybe she didn’t. The trial judge passed up the
opportunity to find out.

The trial judge’s most serious blunder was his failure
to pursue Provost’s statement that Freeland "expressed
strong views" about the circumstances of her brother's
killing. One potential juror had been excused for cause
because she admitted to having "strong ... feelings that
people who are involved in drugs or have anything to do
with drugs I just don’t care for them.” If Freeland had

8. For one thing, one would have to wonder whether Provost told
Freeland anything about Dyer’s statements and conduct that might
bear on her evaluation of his guilt or innocence.

9. We express no view as to whether such a juror would have to

14

strong views about her brother’s death-entirely plausible
given Freeland’s later admission that she was very close to
her brother-this might have undermined her ability to
render an impartial verdict; it certainly would have cast a
sinister light on her failure to mention the killing in her
response to question 13.

Dyer’s lawyer, John Burris, went to the heart of the
matter when he asked the court to bring Provost in for
questioning. The trial judge refused because at that point
defense counsel had no evidence to support the allegation;
the whole thing might have been ginned up by Dyer to
throw sand into the machinery of the trial. The judge thus
reasonably directed Burris to gather basic information
about "whether in fact there was a death and whether it
was a death that occurred in such an instance, because we
want to know the preliminary fact whether she has a
brother by that name, and all-of these things that have to
be looked at." The judge held open the possibility of
calling Provost later: "I don’t know about subpoenaing
somebody at this stage. It may be necessary to do that. It
could become necessary, let me put it that way."

Yet, the next morning, when the prosecutor produced
a casefile confirming Dyer’s account of what Provost had
told him, the judge did not call Provost. Richard’s death
was no invention; everything Dyer had reported that could
be verified turned out to be true. The trial judge thus had
no basis for shrugging off Provost’s further statement that
Freeland had expressed strong views about the shooting.
Had Provost been called as a witness, he could have
elaborated on his statement and reported any bias
Freeland might have exhibited as a result of that traumatic

be excused as a matter of due process. We note this only as an
authoritative determination of how the state law would operate in
these circumstances.

15

experience. He most certainly could have shed light on
whether Freeland was telling the truth when she claimed
that she thought her brother was killed by accident. Since
Provost was in jail, there would have been no delay in
trying to locate and subpoena him. Had the judge ordered
him to appear, he would have been brought in post-haste.

The California Supreme Court laid the blame for the
inadequate factual development at the bias hearing on the
shoulders of defense counsel. See People v. Dyer, 45 Cal.3d
26, 59, 246 Cal.Rptr. 209, 753 P.2d 1 (1988). See generally
Keeney v. Tamayo-Reyes, 504 U.S. 1, 11-12, 112 S.Ct. 1715,
118 L.Ed.2d 318 (1992) (applying cause-and-prejudice
standard to inadequate factual development attributable
to attorney error). Specifically, the court refused to take
judicial notice that Freeland was a plaintiff in the civil
action and that an opinion in the criminal case against
Richard’s killer stated that the attacker "struck the victim
on the head four times with a pisto! and then shot him in
the back of the head." Dyer, 45 Cal.3d at 59, 246 Cal.Rptr.
209, 753 P.2d 1. It did so because "[e]ach of the facts of
which defendant now requests us to take judicial notice
could have been presented to the trial court." Jd.

The California Supreme Court overlooked the fact
that this evidence was before the trial court at the time of
the hearing; it was all contained in the criminal casefile of
Richard’s killer. The court also did not take account of the
fact that Curtis, the prosecutor, was very familiar with the
case and had an obligation to share his information with
the court and opposing counsel. And, of course, Freeland
herself and Provost were available to be questioned on
these points. This was not a case where defense counsel
failed to discover relevant evidence or knowledgable
witnesses.

16

Where Burris might have been more aggressive is in
questioning Freeland and pointing out the conflict
between her claim that she thought Richard’s killing was
an accident and the information available in the casefile.
Burris, however, was seriously handicapped in preparing
for the hearing. He could not contact Freeland and
question her, so he had no clue as to how she would
respond when confronted with her brother’s murder. Even
if Burris had access to the casefile before the
hearing-which we assume though it’s nowhere disclosed in
the record- he could not have examined the file with an
eye towards rebutting Freeland’s as yet untold story. By
the time Freeland testified, the file was with the judge.
Nor could Burris be too aggressive in questioning
Freeland, who would soon have his client’s life in her
hands. Freeland might well have taken umbrage at
counsel’s suggestion that she was lying, especially as it
exposed her to charges of perjury. Burris recognized as
much when he said, "[MJaybe I’m not in a position to
really get a candid answer." Counsel also had his hands
full preparing for the penalty phase, which began just
minutes after the bias hearing.

Given the extremely delicate situation when a juror is
suspected of prejudice or misconduct, the trial judge must
assume the "primary obligation ... to fashion a responsible
procedure for ascertaining whether misconduct actually
occurred and if so, whether it was prejudicial." United
States v. Boylan, 898 F.2d 230, 258 (1st Cir.1990). While a
trial is ongoing, lawyers may not conduct the kind of
aggressive investigation of jurors they would of other
witnesses. In such circumstances the trial judge fulfills his
duty only if he "erects, and employs, a suitable framework
for investigating the allegation [of bias] and gauging its
effects[.]" Jd. Where juror misconduct or bias is credibly
alleged, the trial judge cannot wait for defense counsel to
spoon feed him every bit of information which would

17

make out a case of juror bias; rather, the judge has an
independent responsibility to satisfy himself that the
allegation of bias is unfounded.

Here, Burris did quite a bit, given the constraints of
time and circumstance. He promptly advised the court
that one of the jurors may have failed to disclose highly
relevant information during voir dire. At the trial judge’s
direction, he obtained corroboration for the information
from the prosecutor, including the casefile. He requested
that Provost be brought in for questioning, and when that
request was denied, he had co-counsel interview Provost
in jail and then reported what he said to the court. At the
hearing, Burris asked Freeland the right questions and
timely objected when the court ruled against him. And
immediately following the hearing he drew the court’s
attention to the key fact contained in the file, namely that
"the blue card from the prosecution ... certainly suggests
that her brother was shot in the back of the head and died
in somewhat of a violent manner." Given the delicate
circumstances and the fact that the penalty phase of the
trial was moments away, it’s hard to fault Burris for not
doing more. It seems to us that counsel did enough to
alert the trial court to the problem; it was then up to the
judge to give the matter the attention it obviously
deserved.

We are not unmindful that the trial judge too was in
a difficult position. Through no fault of his own, the
verdict in a five week murder trial was suddenly in
jeopardy. Freeland was the last alternate juror; removing
her would have required the court to set aside the guilty
verdict, empanel a new jury and start from scratch.”

10. Because the verdict was in, the trial judge would probably not
have been free to reopen jury deliberations, even if another alternate
had been available.

18

Had Freeland’s omissions been discovered during voir
dire, another juror could have been selected. With five
weeks of trial completed and a verdict in hand, the
problem had no comfortable solution. No judge would be
eager to discover bias in these circumstances, and we
attribute the trial judge’s complacency to an ostrich-like
desire to avoid learning anything that would jeopardize the
verdict.

Whatever the reason, the judge did not avail himself
of evidence that was, almost literally, right under his nose.
Instead, he made a finding that Freeland told the truth-a
finding that is nearly inexplicable given what he knew, and
positively irrational given what he could easily have
learned. If what happened here is an adequate
investigation into juror bias, we are at a loss to say what
is not.

Il

Because the facts were not properly developed by the
state court, its finding that Freeland was unbiased is not
entitled to a presumption of correctness.“ Under such
circumstances, the federal courts must address the
question de novo, considering not only the evidence
developed in state court, but also other evidence which
comes to light afterward. See Rhoden v. Rowland, 10 F.3d

11. State appellate court findings are normally entitled to a
presumption of correctness as well. See Sumner v. Mata, 449 U.S.
539, 546, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981). But the California
Supreme Court here did not cure the inadequacy of the trial court’s
hearing. It explicitly refused to consider any of the circumstances
surrounding Richard’s shooting. See People v. Dyer, 45 Cal.3d 26, 59,
246 Cal.Rptr. 209, 753 P.2d 1 (1988). Because the California Supreme
Court’s findings were grounded in the same incomplete record as the
trial court’s, its findings are no more entitled to a presumption of
correctness.

19

1457, 1460 (9th Cir.1993). While the district court made
no findings, it nevertheless held an evidentiary hearing.
We can therefore consider the question of whether
Freeland was biased with the benefit of a fully developed
record. This record conclusively answers our two key
questions: First, Freeland plainly lied when she answered
"no" to voir dire questions 13 and 15; no rational trier of
fact could find otherwise. And she lied again when she
was questioned by the state judge in chambers-presumably
to cover her earlier lie and remain on the jury. Second,
Freeland’s lies give rise to an inference of implied bias on
her part. Because implied bias is a mixed question of law
and fact reviewable de novo, see Burton v. Johnson, 948
F.2d 1150, 1158 (10th Cir.1991), there is no need to
remand to the district court for consideration of this issue
in the first instance.”

A. The circumstances of Richard’s killing were such
that Freeland could not possibly have confused it with an
accident. Freeland’s account of what happened made it
sound like the shooter was waving his gun around, and the
gun happened to go off in the direction of her brother.
But the California Court of Appeal reviewing the
indictment of Richard’s killer described the event as "an
angry confrontation between [the shooter] and the
victim[.]" The court concluded that "the fact that [the

12. Because we conclude that Freeland lied, we need not decide
whether dishonesty is a necessary predicate to a finding of juror bias.
Compare McDonough, 464 U.S. at 556, with id. at 556-57 (Blackmun,
Stevens and O’Connor, JJ., concurring); id. at 558 (Brennan and
Marshall, JJ., concurring in the judgment); Zerka v. Green, 49 F.3d
1181, 1186 n. 7 (6th Cir.1995); Amirault v. Fair, 968 F.2d 1404,
1405-06 (1st Cir.1992); Cannon v. Lockhart, 850 F.2d 437, 440 (8th
Cir.1988).

13. That anyone would think such a reckless killing is not a crime
itself stretches credulity.

20

shooter] struck the victim on the head four times with a
pistol and then shot him in the back of the head suggests
an inference of malice." This paints quite a different
picture from Freeland’s account of the incident and
explains why Curtis charged the shooter with murder.

Did Freeland know what really happened? No doubt.
In her deposition, Freeland acknowledged that she and
Richard were "very close." It is inconceivable that the
brutal circumstances of Richard’s killing would not have
been discussed within the Freeland household; indeed,
Freeland’s father testified that no one in the family had
ever spoken of the killing as an accident. Nor is it
believable that Freeland would have been unaware that
her mother testified at the killer’s preliminary hearing,
which happened within ten weeks of the shooting.

Freeland’s account of Richard’s death was just the tip
of Pinocchio’s nose. Freeland also lied when she said she
had never been a victim of crime. When she was a child,
at a time when her parents were separated, Freeland’s
father kidnapped her and her siblings. Freeland explained
that "the police finally caught up with us and he was
arrested." When Freeland was a teenager she was attacked
by her cousin, Buddy, who broke into her house in the
dark, showed a knife and pulled her underwear off before
she fought him off. Freeland’s father called the police.
Freeland downplayed the incident in her deposition, but
admitted that it "scared the hell out of me."“

Freeland also failed to mention the many burglaries
to which she had fallen prey. Her cars had been broken

14. No doubt these events were embarrassing to Freeland, and
she-may not have wanted to air her family’s dirty linen in public. Yet
she could have asked that she talk about the events in chambers, as
other potential jurors had done during voir dire.

21

into so many times she lost count. One car had been
stolen outright. Her home had been burglarized on at
least three occasions. During her deposition Freeland
vividly recalled walking in on one robbery and watching as
the burglar fled through the back door with a sack of loot
thrown over his shoulder "like Santa Claus’ bag." Several
potential jurors had disclosed burglaries during voir dire;
Freeland watched as most of them were picked off by
peremptory challenge.” Being the last to be seated,
Freeland was not taken by surprise; the trial judge had
instructed the potential jurors to "[mJake sure that while
this process is going on that you hear every question that
is asked and every answer that is given[.]" Lest the point
be lost, the judge continued, "[A]s I’ve indicated to you
before, you have a right to hear, and a duty to hear. So
make sure that you do." Freeland sat through the
questioning of 74 potential jurors over the course of five
days and had time to consider how she would answer the
same questions when her turn came. When her turn did
come, Freeland answered "no" to voir dire questions 13
and 15, even though her incidents were far more serious,
both in number and magnitude, than those disclosed by
others who had preceded her.

Equally inexplicable was Freeland’s negative response
when she was asked if any "relative" had been "accused of
any offense other than traffic cases." Freeland’s husband
had been arrested on rape charges just a month before

15. Courtney Coleman stated that "I've had my house-when I was
living in Union City when I was married I had my house broken into
several times. I also had my wife’s car stolen twice." Barbara
Covarrubias stated, "My house was broken into three times in one
year.” Dale Gritton stated, "My brother has had his apartment broken
into several times." John Braucht stated that a burglar, "I guess
supposedly under the influence of drugs, broke into my parents’ home
while they were there[.]"

22

trial. In her deposition, Freeland explained that she did
not consider her husband to be a relative, but other
prospective jurors had offered information about in-laws
and former spouses. Freeland and Provost were still
legally married, and Freeland went to visit him shortly
after his arrest.

Even if her nondisclosure about Provost could
somehow be explained, the arrest record of other relatives
cannot. Freeland’s father was arrested for the kidnapping
already mentioned. Freeland’s uncle, Jason Caldwell, who
iived with the Freelands from time to time, had been
arrested for murder in Louisiana in 1970. Caldwell was
arrested again in 1978 in connection with an armed
robbery and pled guilty to being an accessory after the
fact. Caldweil was paroled to Oakland a few years later.
In 1980 Freeland’s brother Billy had been convicted of
possessing brass knuckles. And less than a month before
the voir dire, Billy was arrested for possession of LSD and
marijuana.

Freeland’s family had a long history with the law, and
not every event might have come to mind as Freeland sat
in the jury box during voir dire. But her failure to mention
that any of her relatives had been accused of crime defies
an innocent explanation. Nearly every close relative of
hers had been arrested: Her husband for rape; her father
for kidnapping; her uncle Jason for murder, and again for
armed robbery; her brother Billy for possession of brass
knuckles, and again for drug possession; her cousin Buddy
for attempted rape of Freeland herself. Freeland
overlooked too many incidents for us to attribute her
responses to mere forgetfulness.

23

_ Indeed, in her deposition Freeland did not claim to
be forgetful.“ Rather, she steadfastly maintained that
she-not the court, not the defense, not the prosecutor-was
the best and only judge of what information was relevant.
As to the countless burglaries of her cars and homes, she
explained that she thought that these events had no
bearing on her impartiality:

| didn’t have time to rack my brain to remember
every time my car or house had been burglarized
and it didn’t have a bearing on the case to me
because if you live in Oakland, I don’t know of
anyone who lives in Oakland who has never
been burglarized.

(Emphasis added.) Freeland even shrugged off the
suggestion that burglary could be considered a crime: "It’s
just a way of life and it’s just the way things go. It was not
a traumatic event that caused me to be so bitter that I
would irrationally try to pay back someone like Alfred
Dyer who has evidently done burglaries or robberies." Jd.
Freeland even belittled the significance of her uncle’s
arrest for murder: "Am I to reveal everything, the little
information I know about other relatives? That's
ridiculous. If that’s what they wanted and you feel I have
been unfair by not saying a distant relative has done
something, then let Alfred Dyer get a new trial." Later,
Freeland stated forthrightly, "I dislike giving information,

16. The district court did not hear Freeland testify because she
evaded twenty-one separate attempts by the petitioner to subpoena
her. Because the district court deferred to the trial court under
section 2254, we do not have the benefit of an independent finding of
impartiality to review. The district court did, however, review
Freeland’s deposition testimony, and was not convinced that Dyer had
shown enough to overcome the presumption of correctness. This, of
course, is not the same as an independent finding of lack of bias.

24

period. Information that to me is not relevant... [E]ven if
my brother was the victim of a violent crime, how can you
take that little information and say, "Here she was unfair
to Alfred Dyer.’ "

B. Because the record conclusively establishes that
Freeland lied, and lied repeatedly, we proceed to consider
whether her lack of candor reflects an "{inJability to
render an impartial verdict." Smith, 455 U.S. at 220.

Whether Freeland was actually biased-i.e., whether
she was disposed to cast a vote against Dyer-is difficult to
figure out eighteen years later. Freeland acknowledged
that she was very close to her brother, and added that the
period following his death was painful. It’s certainly
possible that anger about her brother’s killing drove
Freeland to finagle a seat on the jury so she could lobby
for a conviction and death sentence. Freeland herself was
a victim of many crimes, and she may have wanted to use
her jury service to send a message of deterrence. On the
other hand, the fact that many of her relatives had been
arrested suggests she could have harbored some empathy
for criminal defendants. However, we need not resolve the
actual bias question, which would first require factual
findings by the district court, because the implied bias
issue is dispositive here. Thus, we need not speculate
further about what motivated Freeland to lie.

In extraordinary cases, courts may presume bias
based on the circumstances. See McDonough, 464 U.S. at
556-57 (Blackmun, Stevens and O’Connor, JJ., concurring)
(accepting doctrine of implied bias in exceptional
circumstances); id. at 558 (Brennan and Marshall, JJ.,
concurring in the judgment) (same); Zerka v. Green, 49
F.3d 1181, 1186 n. 7 (6th Cir.1995); Amirault v. Fair, 968
F.2d 1404, 1405-06 (1st Cir.1992); Tinsley v. Borg, 895 F.2d
520, 527 (9th Cir.1990); Cannon v. Lockhart, 850 F.2d 437,

25

440 (8th Cir.1988); United States v. Eubanks, 591 F.2d 513,
517 (9th Cir.1979); United States v. Allsup, 566 F.2d 68,
71-72 (9th Cir.1977).

What kind of circumstances give rise to a finding of
implied bias? In Smith v. Phillips, Justice O’Connor gave
some examples of situations where bias may be presumed:
"a revelation that the juror is a close relative of one of the
participants in the trial or the criminal transaction, or that
the juror was a witness or somehow involved in the
criminal transaction." 455 U.S. at 222 (concurring opinion).
Of course, a juror could be a witness or even a victim of
the crime, perhaps a relative of one of the lawyers or the
judge, and still be perfectly fair and objective. Yet we
would be quite troubled if one of the jurors turned out to
be the prosecutor’s brother becaute it is highly unlikely
that an individual will remain impartial and objective when
a blood relative has a stake in the outcome. Even if the
putative juror swears up and down that it will not affect
his judgment, we presume conclusively that he will not
leave his kinship at the jury room door. The effect of this
factor would be impossible to predict: Would the juror
yield to his sympathies, or fight them and lean the other
way? There is no way to know, but permitting such a juror
to serve would introduce into the jury room an extraneous
influence that could materially color the deliberations. The
juror in question would be lacking the quality of
indifference which, along with impartiality, is the hallmark
of an unbiased juror.

Jessica Freeland was not involved in the crime which
was the subject of the case, nor did she have a personal
relationship with any of the trial participants. But there is
every indication that she was not indifferent to service on
the jury. After watching a number of potential jurors
disclose relatively minor crimes and get dismissed, she
chose to conceal a very major crime-the killing of her

26

brother in a way that she knew was very similar to the way
Dyer was accused of killing his victims.” She also failed
to disclose many other facts that would have jeopardized
her chances of serving on Dyer’s jury. Later on, when she
was questioned about her brother’s death, she lied once
again by pretending she thought it was an accident, and by
telling the judge that no one in her family had testified
about the killing. The inference we draw from all this is
that Freeland lied in order to preserve her status as a
juror and to secure the right to pass on Dyer’s sentence.

We don’t know why Jessica Freeland so cherished her
seat on Dyer’s jury.“ Jury service is a civic duty that
citizens are expected to perform willingly when called
upon to do so. But there is a fine line between being
willing to serve and being anxious, bet veen accepting the
grave responsibility for passing judgment on a human life
and being so eager to serve that you court perjury to
avoid being struck. The individual who lies in order to
improve his chances of serving has too much of a stake in
the matter to be considered indifferent. Whether the
desire to serve is motivated by an overactive sense of civic
duty, by a desire to avenge past wrongs, by the hope of

17. At the time of voir dire the judge had already informed the
venire that Dyer was on trial for murder an4 attempted murder, with
a handgun, and that the state had asked for the death penalty.

18. In yet another bizarre twist, after Dyer’s trial Freeland
became an Officer with the California Department of Corrections and
served as a guard on death row in San Quentin, where Dyer is held
awaiting execution. Freeland later became a parole agent, and on at
least two occasions-in violation of prison regulations-she reviewed and
photocopied portions of Dyer’s confidential Department of
Corrections Central File to check up on the status of his appeal.
While it is hard to know what to make of these facts-they are too few
in number to prove that Freeland was on a vendetta or had a
particular interest in seeing Alfred Dyer executed-they certainly are
not consistent with the picture of a model indifferent juror.

27

writing a memoir or by some other unknown motive, this
excess of zeal introduces the kind of unpredictable factor
into the jury room that the doctrine of implied bias is
meant to keep out.”

A juror, like Freeland, who lies materially and
repeatedly in response to legitimate inquiries about her
background introduces destructive uncertainties into the
process. There is, of course, the possibility that she did so
because of some personal bias against the defendant
which she managed to hide from the court. But a perjured
juror is unfit to serve even in the absence of such
vindictive bias. If a juror treats with contempt the court’s
admonition to answer voir dire questions truthfully, she
can be expected to treat her responsibilities as a juror-to
listen to the evidence, not to consider extrinsic facts, to
follow the judge’s instructions-with equal scorn. Moreover,
a juror who tells major lies creates a serious conundrum
for the fact-finding process. How can someone who herself
does not comply with the duty to tell the truth stand in
judgment of other people’s veracity? Having committed
perjury, she may believe that the witnesses also feel no
obligation to tell the truth and decide the case based on
her prejudices rather than the testimony.

Writing for a unanimous Court, Justice Cardozo
concluded that a juror who lies his way into the jury room

19. For example, a juror who lies his way on because he secretly
plans to write a memoir of the experience might then vote differently
to provide drama, or he might inject personal prejudice into the jury
room in an attempt to jazz up the deliberative process. Similarly, a
juror who lies because he disputes the importance of following the
judge’s instructions may also walk to his own beat when considering
the meaning of reasonable doubt. See Jeffrey Rosen, One Angry
Woman, New Yorker, Feb. 24-Mar. 3, 1997, at 54-64 (noting erosion
of public confidence in unanimous jury sysiem caused by irrational
holdout jurors).

28

is not really a juror at all: "The judge who examines on
the voir dire is engaged in the process of organizing the
court. If the answers to the questions are wilfully evasive
or knowingly untrue, the talesman, when accepted, is a
juror in name only." Clark v. United States, 289 U.S. 1, 11,
53 S.Ct. 465, 77 L.Ed. 993 (1933). Clark held that a juror
who obtains that position by committing fraud on the
court is no more entitled to the privileges of that position
than a stranger who sneaks into the jury room: "His
relation to the court and to the parties is tainted in its
origin; it is a mere pretense and sham." Jd.

’ Were we to follow Clark to the letter, we would have
to conclude that Dyer was not convicted by a jury of
twelve, but by eleven jurors and one intermeddler. We
need not go quite so far, because we can resolve the case
on narrower grounds. Clark is nevertheless instructive
because Justice Cardozo there equates a juror who lies his
way onto the jury to a juror who is related to a litigant: "If
a kinsman of one of the litigants had gone into the jury
room disguised as the complaisant juror, the effect would
have been no different." Jd. Just as we would presume bias
if the brother of the prosecutor were on a jury, we
presume bias where a juror lies in order to secure a seat
on the jury.

20. The question in Clark was whether the juror’s statements in
the jury room could be considered in convicting her of having lied
during voir dire. In holding that the statements could be considered,
the Court had to overcome the privilege then accorded to
communications between jurors during deliberations. The Court held
that the privilege does not apply because a juror who obtains his
position by fraud is not in fact a juror. While this statement was made
in a context very different from ours, it is clearly a holding and not
dicta.

21. Having committed perjury, a juror in Freeland’s position
might realize that the likelihood of being prosecuted diminishes

29

More is at stake here than the rights of petitioner;
"justice must satisfy the appearance of justice." Offutt v.
United States, 348 U.S. 11, 14, 75 S.Ct. 11, 99 L.Ed. 11
(1954). An irregularity in the selection of those who will
sit in judgment "casts a very long shadow." Cruz v. Abbate,
812 F.2d 571, 574 (9th Cir.1987). A perjured juror is as
incompatible with our truth-seeking process as a judge
who accepts bribes. Cf. Bracy v. Gramley, 520 U.S. 899,
117 S.Ct. 1793, 1797, 138 L.Ed.2d 97 (1997). In this
regard we agree with Chief Judge Winter:

[C]ourts cannot administer justice in
circumstances in which a juror can commit a
federal crime in order to serve as a juror in a
criminal case and do so with no fear of sanction
so long as a conviction results. The government's
brief exhibits no concern over the possible
criminality of the juror’s conduct and asks us to
affirm without further inquiry.... [WJhether the
government chooses to prosecute such cases is
not for us to decide. We need not reduce its
incentives to take such conduct seriously,
however, by giving the government cause to
believe that overlooking juror misconduct will
preserve tainted convictions.

United States v. Colombo, 869 F.2d 149, 152 (2d Cir.1989)
(internal citations omitted).

significantly if she votes to convict. Compare Clark, 289 U.S. at 9, with
United States v. Colombo, 869 F.2d 149, 152 (2d Cir.1989).

22. The doctrine of implied bias has a counterpart in the canons
of judicial ethics which require judges to disqualify themselves if they
have even the smallest stake in the proceedings, or if they believe that
their impartiality might reasonably be questioned. See Bracy, 117 S.Ct.
at 1797; ABA Code of Judicial Conduct, Canon 3E (1990). Both rules
safeguard both the existence and the appearance of justice.

30

Not all jurors may walk a perfectly straight line. A
distracted juror might fail to mention a magazine he
subscribes to. An embarrassed juror might exaggerate the
importance of his job. Few voir dires are impeccable, and
most irregularities can be shrugged off as immaterial to
the fairness of the trial. But the magnitude of Freeland’s
lies and her remarkable display of insouciance- her
expressed feeling that only she would decide what
matters-fatally undermine our confidence in her ability to
fairly decide Dyer’s fate. The facts here add up to that
rare case where we must présume juror bias See
Burton v. Johnson, 948 F.2d 1150 (10th Cir.1991).

IV

Presumed bias dates back in this country at least to
Aaron Burr’s trial for treason, where Chief Justice
Marshall, riding circuit, noted that an individual under the
influence of personal prejudice "is presumed to have a bias
on his mind which will prevent an impartial decision of the
case, according to the testimony." Marshall explained, "He
may declare that notwithstanding these prejudices he is
determined to listen to the evidence, and be governed by
it; but the law will not trust him." United States v. Burr, 25
F. Cas. 49, 50 (D.Va.1807) (emphasis added). In the
common law, implied bias can be traced all the way back
to Sir Edward Coke’s dictum in Bonham’s Case that no
man shall be judge in his own cause. See Dr. Bonham’s
Case, 77 Eng. Rep. 646, 652 (C.P.1610). This pedigree

23. We appear to be unanimous that if Freeland knew the
circumstances of her brother’s death, we must presume bias. See
Brunetti dissent, infra, at 8609 ("In order for Freeland to have the
necessary relationship to create the emotional involvement she would
have had to know and understand the circumstances and facts of her
brother’s death to be a brutal murder."), We part company only as to
whether such knowledge can be imputed to Freeland.

31

neatly disposes of the state’s argument that implied bias
would be a “new rule" barred by Teague v. Lane, 489 U.S.
288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). Implied bias
may indeed be the single oldest rule in the history of
judicial review, as Bonham’s Case is often identified as the
first case in which a court struck down a duly enacted
legislative act. See, e.g., Suzanna Sherry, The Founders’
Unwritten Constitution, 54 U. Chi. L.Rev. 1127, 1130
(1987).

Judge O’Scannlain nevertheless argues that implied
bias is not an established rule of constitutional procedure
because we can point to no Supreme Court case
announcing it. But a rule needs to be announced for
purposes of Teague only if it’s new. What we have here is
the antithesis of Teague-a rule so deeply embedded in the
fabric of due process that everyone takes it for granted.
This is precisely what the Supreme Court did in Clark v.
United States, 289 U.S. at 11. Offering an obvious example
of someone who would not be qualified to serve as a
juror, it mentioned a relative of one of the parties: “If a
kinsman of one of the litigants had gone into the jury
room disguised as the complaisant juror, the effect would
have been no different." Jd. Such a juror, the Court said,
would be a juror "in name only." Jd. The Court there
understood-as every court that has dealt with the question
has understood-that prejudice must sometimes be inferred
from the juror’s relationships, conduct or life experiences,
without a finding of actual bias.

In Tumey v. Ohio, 273 U.S. 510, 532, 47 S.Ct. 437, 71
L.Ed. 749 (1927), the Court made it clear that bias must
sometimes be presumed, even though the decision maker
may be completely unbiased. In Tumey, a man in a small
Ohio town was tried for unlawful possession of liquor. The
Mayor also served as judge. In addition to his salary as
Mayor, he received a small cut of each fine he imposed as

32

a judge. The Supreme Court- unanimously held that a
conviction so imposed violates due process. The Court
first acknowledged that some fact- finders would not
actually be prejudiced by a personal stake in the outcome:
"There are doubtless mayors who would not allow such a
consideration as $12 costs in each case to affect their
judgment in it[.]" Jd. But, the Court held, subjective state
of mind is not dispositive when the circumstances create
an inference of bias. "[T]he requirement of due process of
law in judicial procedure is not satisfied by the argument
that men of the highest honor and the greatest
self-sacrifice could carry it on without danger of injustice."
Id, Rather, the Court held, we must look to the fairness of
the procedure and whether bias should be presumed from
the circumstances: "Every procedure which would offer a
possible temptation to the average man as a judge to
forget the burden of proof required to convict the
defendant, or which might lead him not to hold the
balance nice, clear and true between the State and the
accused, denies the latter due process of law." Jd> As in
Clark, the Court in Tumey never stopped to question
whether bias can be presumed from circumstances.
Rather, it accepted the doctrine of implied bias as a given
and applied it to the facts of the case.

Nothing in Smith v. Phillips, 455 U.S. 209, 102 S.Ct.
940, 71 L.Ed.2d 78 (1982) or McDonough Power Equip.,
Inc. v. Greenwood, 464 U.S. 548, 104 S.Ct. 845, 78 L.Ed.2d
663 (1984) is to the contrary. In Smith, Justice Marshall
dissented, worrying that the majority was doing away with
the doctrine of implied bias. Justice O’Connor joined the
opinion on the understanding that it did not abolish the
doctrine, see id. at 221, and the majority said nothing to
the contrary. Smith has no bearing on our case unless we
assume the majority tacitly did what Justice Marshall
accused it of doing. That it did not is confirmed by
Greenwood, where the Court held that the bias could not

33

be implied on the facts of that case, but assumed that the
doctrine does, in fact, exist. See Greenwood, 464 US. at
556-57 (Blackmun, J., concurring, joined by Stevens and
O’Connor, JJ.) (fifth, sixth and seventh votes of majority).
Accord Leonard v. United States, 378 U.S. 544, 84 S.Ct.
1696, 12 L.Ed.2d 1028 (1964); Tumey, 273 U.S. at 532.

No opinion in the two centuries of the
Republic-except the dissent in our case-has suggested that
a criminal defendant might lawfully be convicted by a jury
tainted by implied bias.“ Under the dissent’s logic,
reasonable jurists could hold that Dyer would have been
accorded due process even if he had been convicted by a
jury comprised of the following twelve individuals: (1) the
mother of Jerry Curtis, the prosecutor, (2) Curtis’s former
law partner, (3) Oakland’s Chief of Police, (4) the Grand
Dragon of the Bay Area KKK, (5) the sister of Floyd
Murray, who died in the shooting, (6) Floyd Murray’s
mother, (7) the victim of Dyer’s prior robbery, (8) Dyer’s
ex-wife, (9) the District Attorney, (10) an Oakland
councilman running for re-election on a "tough-on-crime"
platform, (11) Melvin Provost, Dyer’s cellmate, and (12)
Provost’s wife, Jessica Freeland-so long as they had all
sworn they would be fair. We, on the other hand, believe
that no reasonable jurist would take that position. Rather,
jurists of reason would all agree that each of these
individuals, had they made their way onto the jury, should

24. The dissent cites United States v. Malloy, 758 F.2d 979 (4th
Cir.1985), for the proposition that “the federal courts of appeals were
split on the issue of implied bias." O’Scannlain dissent at 8622. Malloy
does nothing more than refuse to find implied bias on a particular set
of facts. See Malloy, 758 F.2d at 981 ("Malloy urges us to adopt a per
se rule [of implied bias] in joint service cases. We decline the
invitation."). Courts disagree (e.g. Smith) about when the doctrine
applies, not whether it exists.

34

have been struck without stopping to inquire into their
subjective state of mind..

The panel opinion is VACATED, the district court is
REVERSED and the case is REMANDED for further

proceedings.

Brunetti, Circuit Judge, dissenting, with Judges Thompson,
O’Scanniain, and Kleinfeld, joining.

Today’s opinion sets forth a new rule of law that is a
substantial departure from our precedent and deals a
serious blow to the power of the trial court. Our system of
law mandates deference to the trial court on certain issues
regarding facts and credibility of witnesses. Today, that
deference is pushed aside so that the appellate court may
not only review the applicable laws, but also decide the
facts. Our position has never been to sit as a finder of fact
and I cannot support the extension of our power to do so.
For the reasons that follow, I respectfully dissent.

I. Actual Bias Standard

The Sixth Amendment "guarantees to the criminally
accused a fair trial by a panel of impartial, ’indifferent’
jurors." Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 6
L.Ed.2d 751 (1961). The Constitution "does not require a
new trial every time a juror has been placed in a
potentially compromising situation." Smith v. Phillips, 455
US. 209, 217, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982). As the
majority points out, due process requires only that the
defendant be tried by a "jury capable and willing to decide
the case solely on the evidence before it, and a trial judge
ever watchful to prevent prejudicial occurrences and to
determine the effect of such occurrences when they
happen." Jd. For Dyer to be entitled to a new trial, he
would have to "first demonstrate that a juror failed to

35

answer honestly a material question on voir dire, and then
turther show that a correct response would have provided
a valid basis for a challenge for cause." McDonough Power
Equipment v. Greenwood, 464 U'S. 548, 556, 104 S.Ct. 845,
78 L.Ed.2d 663 (1984).

In reviewing a petition for habeas, we presume the
correctness of state court findings of "basic, primary, or
historical facts" unless one of the eight statutory
exceptions applies. Thompson v. Koehane, 516 US.
99,109-10 (1995). Because resolution depends heavily on
the trial court’s appraisal of witness credibility and
demeanor, juror impartiality is a factual issue that falls
within the statutory presumption of correctness. Jd. The
majority contends that the trial court was so lax in its
investigation of Freeland that its determination that
Freeland was impartial is not entitled to the presumption
of correctness. I disagree.

The state trial court made findings that Freeland’s
answers on voir dire were not dishonest or intentionally
misleading. At the in camera hearing, the trial court had
an adequate opportunity to witness Freeland’s demeanor
and questioned her about her understanding of the
circumstances surrounding her brother’s death and
whether she believed it would affect her partiality. The
trial court refused to "characterize anything [Freeland] did
or did not do as demonstrating any lack of candor." Also,
the trial court found that Freeland’s allegedly false
answers to the two voir dire questions at issue were
"inadvertent" and were given in "good faith."

Absent application of a statutory exception, we must
give presumptive weight to the finding of Freeland’s
impartiality. The majority refuses to apply the
presumption because, they believe, (1) material facts were
not developed, and (2) clear and convincing evidence

36

demonstrates that the state court’s determination as to
Freeland’s honesty was erroneous. I disagree.

The majority concludes that material facts about
Richard’s death were not developed adequately at the trial
court proceeding. However, the trial court found Freeland
honestly believed that her brother’s death was an accident,
and therefore was not a crime. This finding is not
inconsistent with Freeland and Richard being close, the
fact that the family was seriously affected by his death, or
even institution of a wrongful death suit and eventual
recovery. Similarly, that Freeland’s mother testified in the
criminal proceedings is of no import since it was not
shown that Freeland knew about this testimony.
Therefore, like the majority of the original Ninth Circuit
panel, I would not disrupt the state courts’ determination
that Freeland answered honestly based on evidence
unknown to the state trial judge that is wholly consistent
with such a finding.

The majority assumes that Freeland obviously lied by
failing to reveal that she was attacked by her cousin, that
her father had been arrested for kidnapping, that her
uncle had been arrested for murder, that her brother had
been arrested on drug charges, that Freeland’s cars and
home had been burglarized, and that her former husband
had been arrested for rape. However, as to each of these
additional facts, Freeland has explained why she originally
failed to disclose them. The district court explicitly
credited Freeland’s testimony and found that the new
evidence did not detract from the state courts’ findings
about Freeland’s credibility. »

The procedural history of this case illustrates that
Freeland’s credibility was thoroughly scrutinized on
multiple occasions. First, the state trial court held an in
camera hearing between the guilt and penalty phases and

37

concluded that Freeland was not biased. A motion for
mistrial was then denied. Second, the state trial court held
a hearing on this issue in response to Dyer’s motion for a
new trial. The trial court found that the voir dire questions
were ambiguous and that Freeland’s responses were
inadvertent. Third, on direct appeal, the California
Supreme Court agreed that the questions were ambiguous
and found no evidence that Freeland was lying when she
said that no member of her family had been a crime
victim. Fourth, on federal habeas, the district court
conducted an evidentiary hearing accepting new evidence
and still affirmed the tria! court’s finding that Freeland
had answered honestly, refusing to presume bias.

Accordingly, we have before us not just the state
courts’ findings of impartiality, but also the district court's
findings that are based on the additional facts that Dyer
had since proffered and on which the majority now
focuses its attention. As the district court found, none of
these additional facts provides any reason to disturb the
state courts’ finding that Freeland was honest in her
responses. See Nix v. Williams, 467 U.S. 431, 449-50, 104
S.Ct. 2501, 81 L.Ed.2d 377 (1984) (newly discovered
evidence failed to demonstrate that facts were not
adequately developed in state court). None of the district
court’s findings as to Freeland’s credibility were clearly
erroneous. Although the number of crimes committed by
members of her family seems high, and the number of
incidents in which she or members of her family were
victims of crimes also seems high, these facts do not
establish that Freeland was dishonest. Freeland is from a
crime-ridden community--a fact which plausibly both
affects her understanding of what qualifies as a crime and
influenced her answers to Questions 13 and 15. The trial
court and the state supreme court both found the voir dire
questions ambiguous and that Freeland’s answers in
camera and in deposition were honest. The record as a

38

whole, including Freeland’s deposition testimony and her
responses at the in camera hearing, is adequate to support
the findings that she was not being dishonest during voir
dire. Therefore, the additional facts do not destroy the
presumption that the state courts’ findings of fact are
correct.

The majority rejects the state courts’ factual findings
and instead concludes that Freeland’s responses were
patently implausible. To reach this conclusion they
continually recite their assumption that "Freeland lied and
lied repeatedly." Essentially, the majority is re-finding the
facts and, through speculation and assumption regarding
these newly-found facts, concluding that Freeland’s
explanations defy common sense. That is not our proper
function. The trial court saw Freeland testify and simply
did not believe that she lied. Our judicial system relies
heavily on the trial judge to make this very sort of
determination. Trial judges, viewing the testimony first
hand and, using all their senses, are in the best position to
determine credibility. For this reason, appellate judges
properly defer to the trial judge’s factual findings of
credibility under our laws. See Knaubert v. Goldsmith, 791
F.2d 722, 727 (9th Cir.1986) (stating that "[w]e can think
of no sort of factual finding that is more appropriate for
deferential treatment than is a state court’s credibility
determination."). As the majority of the prior three judge
panel concluded, “[s]imply put, while there are substantial
questions raised as to her credibility, the findings by the
state trial court, added to by the findings of the district
judge, have not been demonstrated by Dyer to be clearly
erroneous--given the special credibility deference we are
required to apply: she believed what she said was truc at
that time." Dyer v. Calderon, 122 F.3d 720, 730 (9th
Cir.1997). Actual bias is the issue here; not whether she
lied on the juror questionnaire or voir dire. See
McDonough, 464 U.S. at 556.

39

; Il. Implied Bias

Not only does the majority find actual bias, based on
the assumed lie, but they also find implied bias based on
the circumstances. The Supreme Court has never explicitly
held that we may infer or presume bias based on the
totality of the circumstances. We should not do so now.

The majority relies on case law where we have said
that "bias could be implied or presumed from the
potential for substantial emotional involvement, adversely
affecting impartiality,’ inherent in certain relationships."
Tinsley v. Borg, 895 F.2d 520, 527 (9th Cir.1990) quoting
United States v. Allsup, 566 F.2d 68, 71 (9th Cir.1977).
However, these cases are inapplicable to today’s case. In
those cases the court found that the relationship of a juror
to the subject of the trial was too close. In Allsup, we held
that two jurors in a bank robbery trial were partial despite
the district court’s finding of impartiality because the
jurors were employees of a different branch of a bank that
was robbed. Allsup, 566 F.2d at 71. Similarly, in United
States v. Eubanks, 591 F.2d 513 (9th Cir.1979), a heroin
conspiracy trial, we presumed bias where a juror did not
disclose that two of his children were in prison for
heroin-related crimes. Jd. at 516-17. In this case, there is
no such relationship. In order for Freeland to have the
necessary relationship to create the emotional involvement
she would have had to know and understand the
circumstances and facts of her brother’s death to be a
brutal murder. To the contrary, Freeland believed her
brother’s death was an accident. Accordingly, she would
have no impermissible substantial emotional involvement
to Dyer’s case.

The majority contends that this is such an extreme
and extraordinary case that we must presume bias. They
claim that Freeland must be presumed partial because

i chat

40

Freeland’s brother was shot several times in the head, just
as the victims in this case. It is true that on rare occasions,
‘[clourts have been willing to presume bias where a juror
or his close relatives have been personally involved in a
situation involving a similar fact pattern." Tinsley, 895 F.2d
at 528 (citing cases). However, as stated in our discussion
of actual bias, we accept the trial court’s finding that
Freeland honestly believed that her brother had been
killed accidentally. That said, the remaining
similarity--death by gunshot--does not render this case
extraordinary or extreme.

While at first glance it may appear extraordinary that
Freeland has experienced such tragedy and so much
crime, considering the alleged rate of crime in Freeland’s
neighborhood, her circumstances, though lamentable, are
not surprising or extraordinary. Indeed, Freeland has
experienced crime not only as a victim but also as the
family member of criminals. Thus, it would be pure
speculation to say that there was an inherent “potential for
substantial emotional involvement, adversely affecting
impartiality." Jd. at 527 (internal quotation omitted).

The majority would go further, however. N Ow, sixteen
years after the trial, they would conduct in the appellate
court an inquiry similar to a perjury trial to impeach the
former juror Freeland when in fact the state trial court
conducted a face-to-face hearing at the time that the issue
of Freeland’s bias was raised.

Finally the majority’s holding requiring this "perjury
inquiry" to sustain an implied bias finding is clearly a new
rule barred by Teague, and I join and concur in Judge
O’Scanniain’s dissent which ably sets forth the Teague
application in this case.

41

I would affirm the district court’s denial of the writ of
habeas corpus.

O’Scannlain, Circuit Judge, with whom _ Brunetti,
Thompson, and Kleinfeld, Circuit Judges, join, dissenting.

I respectfully dissent from the majority’s holding that
we are not foreclosed by Teague v. Lane, 489 U.S. 288,
109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), from declaring
that the entire hierarchy of California courts committed
constitutional error by not implying juror bias.”

State court judges are our co-equal partners in the
protection of federal constitutional rights.” Although
Congress has granted us the authority to grant habeas
corpus relief to state prisoners, due consideration of our
circumscribed role in the federal system counsels prudent
restraint in exercising that extraordinary power to
second-guess state courts. Lest we forget, in Teague, the
Supreme Court instructed us not to impose constitutional
rules on our state court brethren that were not compelled
by existing precedent when a habeas petitioner finished
raising his claims on direct review. As the Court explained
in Gilmore v. Taylor, 508 U.S. 333, 113 S.Ct. 2112, 124
L.Ed.2d 306 (1993), Teague "validates reasonable,
good-faith interpretations of existing precedents made by

1. For the reasons expressed in Judge Brunetti’s dissent, I would
also accord the presumption of correctness to the factual findings
made by the state trial court, and conclude that Juror Freeland was
not shown to be actually biased. I would, therefore, affirm Judge
Walker’s denial of the petition for writ of habeas corpus.

2. See Robb v. Connolly, 111 U.S. 624, 637, 4 S.Ct. 544, 28 L.Ed.
542 (1884) ("Upon the state courts, equally with the courts of the
Union, rests the obligation to guard, enforce, and protect every right
granted or secured by the constitution of the United States....").

42

State courts,’ and thus effectuates the States’ interest in

the finality of criminal convictions and fosters comity

between federal and state courts." Jd. at 340 (quoting
Butler v. McKellar, 494 U.S. 407, 414, 110 S.Ct. 1212, 108
L.Ed.2d 347 (1990)) (internal citation omitted).

Under Teague, the reviewing federal court must
inquire whether "a state court considering [the
petitioner’s] claim at the time his conviction became final
would have felt compelled by existing precedent to conclude
that the ruleThe] seeks was required by the Constitution.”"
Lambrix v. Singletary, 520 U.S. 518, 117 S.Ct. 1517, 1524,
137 L.Ed.2d 771 (1997) (quoting Saffle v. Parks, 494 U.S.
484, 488, 110 S.Ct. 1257, 108 L.Ed.2d 415 (1990))
(emphasis added). That is to say, in order to conclude that
application of a rule is not barred by Teague, the federal
court must determine not only that the rule was "a
reasonable interpretation of prior law," or even the "most
reasonable" interpretation, but also that "no other
interpretation was reasonable." Id. at 1530. Because state
courts would not have felt compelled by precedent
(existing on the date Dyer’s conviction became final) to
conclude that the "implied-bias rule" developed by the
majority was required by the Constitution, application of
that rule is barred by Téague.

|

In Teague, the Supreme Court held, "[s}ubject to two
narrow exceptions," Gilmore v. Taylor, 508 U.S. 333, 339,
113 S.Ct. 2112, 124 L.Ed.2d 306 (1993), that "new
constitutional rules of criminal procedure will not be
applicable to those cases which have become final before
the new rules are announced." Teague, 489 U.S. at 310.
The federal court’s inquiry under Teague must be
conducted in three steps. Firsi, the federal court must
determine the date on which the petitioner’s conviction

43

became final. See Caspari v. Bohlen, 510 U.S. 383, 390, 114
S.Ct. 948, 127 L.Ed.2d 236 (1994). Second, it must
"(survey the legal landscape as it then existed," Graham
v. Collins, 506 U.S. 461, 468, 113 S.Ct. 892, 122 L.Ed.2d
260 (1993), to "determine whether a state court
considering [the petitioner’s] claim at the time his
conviction became final would have felt compelled by
existing precedent to conclude that the rule [he] seeks was
required by the Constitution." Saffle, 494 U.S. at 488.
Finally, "if the court determines that the habeas petitioner
seeks the benefit of a new rule, the court must consider
whether the relief sought falls within one of the two
narrow exceptions to nonretroactivity."* Lambrix, 117
S.Ct. at 1524-25.

Dyer’s conviction became final on October 31, 1988,
the date on which the United States Supreme Court
declined to review the California Supreme Court's
decision affirming Dyer’s conviction on direct review. See
People v. Dyer, 45 Cal.3d 26, 246 Cal.Rptr. 209, 753 P.2d
1, cert. denied, 488 U.S. 934, 109 S.Ct. 330, 102 L.Ed.2d
347 (Oct. 31, 1988).

3. The first "limited" exception to Teague applies to new rules *
‘forbidding criminal punishment of certain primary conduct [and]
rules prohibiting a certain category of punishment for a class of
defendants because_of their status or offense.’ " O'Dell v. Netherland,
--- US. ----, ----, 117 S.Ct. 1969, 1973, 138 L-Ed.2d 351 (1997)
(quoting Penry v. Lynaugh, 492 U.S. 302, 330, 109 S.Ct. 2934, 106
L.Ed.2d 256 (1989)). The second, "even more circumscribed,"
exception applies to " ‘watershed rules of criminal procedure
implicating the fundamental fairness and accuracy of the criminal
proceeding.’ " Id. (quoting Graham, 506 U.S. at 478). As the Supreme
Court observed in Graham, "[w]hatever the precise scope of this
[second] exception, it is clearly meant to apply only to a small core
of rules requiring observance of those procedures that ... are implicit
in the concept of ordered liberty." Graham, 506 U.S. at 478. The
majority does not suggest that either of these exceptions applies here.

44

- In surveying the legal landscape as it existed on that
date, it is necessary to determing whether "precedent"
would have "compelled" a state court to conclude that the
Constitution "required" the implied-bias rule applied by
the majority. Saffle, 494 U.S. at 488. The majority purports
to rely on three sources of precedent in support of its
conclusion that juror bias may be implied: (1) decisions of
the United States Supreme Court; (2) decisions of the
lower federal courts; and (3) the common law.

II

Our survey of the decisions of the Supreme Court
begins with Smith v. Phillips, 455 U.S. 209, 102 S.Ct. 940,
71 L.Ed.2d 78 (1982). In Smith, the Court examined
whether a habeas petitioner’s right to an impartial jury
had been violated because a juror submitted an
application for employment as an investigator in the
District Attorney’s Office during the petitioner’s trial. See
id. at 212. The petitioner argued that "[g]iven the human
propensity for self-justification ... the law must impute bias
to jurors in [such a] position." Jd. at 215. The Supreme
Court “disagree[d]," explaining that it had “long held that
the remedy for allegations of juror partiality is a hearing
in which the defendant has an opportunity to prove actual
bias." Id.; see also id. at 215-17 (discussing Chandler v.
Florida, 449 U.S. 560, 101 S.Ct. 802, 66 L.Ed.2d 740
(1981), Remmer v. United States, 347 U.S. 227, 74 S.Ct.
450, 98 L.Ed. 654 (1954), and Dennis v. United States, 339
US. 162, 70 S.Ct. 519, 94 L.Ed. 734 (1950)).

Justice O’Connor concurred in the Court’s opinion in
Smith. Justices Marshall, Brennan, and Stevens dissented.
The concurring and dissenting Justices disagreed as to
whether the Smith majority had in fact precluded the
possibility that an implied-bias rule is required by the
Constitution. In her concurring opinion, Justice O’Connor

a eee a

45

wrote "to express [her] view that the [majority] opinion
does not foreclose the use of ’implied bias’ in appropriate
circumstances." Id. at 221 (O’Connor, J., concurring).
However, Justice Marshall, joined by Justices Brennan and
-~ Stevens, expressed a different view of the majority
opinion: "According to the majority, the Constitution
requires only that the defendant be given an opportunity to
prove actual bias." Id. at 228 (Marshall, J., joined by
Brennan and Stevens, JJ., dissenting) (emphasis added).

For Teague purposes, it matters little whether Justice
O’Connor or the dissenting Justices in Smith arrived at the
correct interpretation of the majority opinion; what does
matter, quite simply, is that reasonable jurists could
disagree. I posit what should be considered a most
unremarkable point: Justices Marshall, Brennan, and
Stevens are reasonable jurists. Because they could read a
majority opinion of the United States Supreme Court as
precluding the possibility of a constitutional insplied-bias
rule, I cannot conclude, unlike my majority colleagues,
that all reasonable jurists would be compelled to locate
such a rule in the Constitution“

Would reasonable jurists have been compelled to
change their minds between 1982, when Smith was
decided, and October 31, 1988, when Dyer’s conviction

4. I strongly disagree with the majority’s contention that “Smith
has no bearing on our case unless we assume the majority tacitly did
what Justice Marshall accused it of doing." Maj. Op. at 8602. Rather,
Smith “has no bearing on our case" only if Justice Marshall’s position
was unreasonable. That it was not unreasonable is demonstrated by
the fact that many other reasonable jurists have since joined Justice
Marshall in reading Smith to hold that the Constitution requires only
that defendants be given an opportunity to prove actual bias. See, ¢.g.,
United States v. Malloy, 758 F.24 979, 981-82 (4th Cir.1985); Jrons v.
Lockhart, 741 F.2d 207, 208 (8th Cir.1984); Rogers v. McMullen, 673
F.2d 1185, 1189 (11th Cir.1982).

46

became final? To answer this question, we first look to the
Supreme Court’s decision in McDonough Power Equip.,
Inc. v. Greenwood, 464 U.S. 548, 104 S.Ct. 845, 78 L.Ed.2d
663 (1984). In McDonough, a four-Justice plurality stated
that, in order to obtain a new trial on account of juror
bias, "a party must first demonstrate that a juror failed to
answer honestly a material question on voir dire, and then
further show that a correct response would have provided
a valid basis for a challenge for cause." /d. at 556. In a
concurring opinion, Justice Blackmun, joined by Justices
Stevens and O’Connor, observed that the plurality opinion
did not "foreclose" the possibility that bias may be implied.
Id. at 556 (Blackmun, J., joined by Stevens and O’Connor,
JJ., concurring). In yet another concurring opinion, Justice
Brennan, joined by Justice Marshall, expressed
disagreement with the plurality’s analysis, arguing that
courts may consider whether there are "any facts in the
case suggesting that bias should be conclusively
presumed." Jd. at 558 (Brennan, J., joined by Marshall, J.,
concurring).

State courts would not have felt compelled by these
concurring opinions to conclude that bias may be implied
as a matter of federal law. The McDonough Court
reversed the Tenth Circuit’s holding that a new trial was
required on account of juror bias, see McDonough, 464
US. at 549; therefore, the statements in both concurring
opinions regarding implied bias were dicta not necessary
to the holding. See United States v. Boatwright, 822 F.2d
862, 864 (9th Cir.1987) (Kennedy, J.) ("The requirement
[in United States v. Echegoyen, 799 F.2d 1271 (9th
Cir.1986) ], that two independent searches be in progress
[for the challenged evidence to be admitted] is dictum, as
the case admits the challenged evidence."); Hutchinson v.
Amateur Elec. Supply, 42 F.3d 1037, 1047 (7th Cir.1994)
("Any authority for denying prejudgment interest in
[Donnelly v. Yellow Freight Sys., Inc., 874 F.2d 402 (7th

47

Cir.1989) ] thus.is dicta, since the Donnelly court reversed
the district court’s denial of interest."); United States v.
Helmsley, 985 F.2d 1202, 1207 (2d Cir.1993) ("The
statement in [Mills v. Scully, 826 F.2d 1192 (2d Cir.1987),
regarding potential deprivations of due process] was
dictum since Mills reversed the grant of a writ of a habeas
corpus."). Dicta in Supreme Court opinions are not
binding, see McDaniel v. Sanchez, 452 U.S. 130, 141, 101
S.Ct. 2224, 68 L.Ed.2d 724 (1981); Ayala v. United States,
550 F.2d 1196, 1200 (9th Cir.1977), and are certainly
- insufficient to compel state courts to conclude that a rule
is required by the Constitution under Teague. See Lambrix,
117 S.Ct. at 1525 (authority that supports point "in dictum"
does not " ’control{ }’ or ’dictate[ ]’ the result" for Teague

purposes).

Between its decision in McDonough and 1988, the
Supreme Court did not directly address the issue of
implied bias. Thus, the decisions of the Supreme Court
could not have "compelled" state courts to conclude that
the Constitution requires the majority’s implied-bias
rule.%

Ill

5. This conclusion is not affected by the Supreme Court's
statment in Stringer v. Black, 503 U.S. 222, 112 S.Ct. 1130, 117
L.F'd.2d 367 (1992), that the application of a rule is not barred by
Teague when it emerges not "from any single case ... but from [a] long
line of [Supreme Court] authority..." /d. at 232. No such "long line"
of Supreme Court authority compelled jurists to recognize the
majority’s implied-bias rule at the time Dyer’s conviction became
final. Id. If such a “long line" ever existed (it did not exist, see Smith,
455 U.S. at 215-17 (collecting cases)), it certainly was severed by
Smith. See Saffle, 494 U.S. at 488 (Teague asks whether state court
would have felt compelled by “existing precedent.") (emphasis added).

48

The majority would apparently hold that, irrespective
of whether there is a "Supreme Court case announcing" a

constitutional rule of criminal procedure, the rule is not
barred by Teague if it is "so deeply embedded in the fabric
of due process that everyone takes it for granted." Maj.
Op. at 8601. I am unable to agree. A rule is "new" under
Teague unless "a state court considering [the petitioner’s]
claim at the time his conviction became final would have
felt compelled by existing precedent to conclude that the
rule [the petitioner] seeks was required by the
Constitution." O'Dell, --- U.S. at ----, 117 S.Ct. at 1973
(holding that rule is not "new" only if this standard is met);
Lambrix, 117 S.Ct. at 1524 (using same language to
describe standard); Caspari, 510 U.S. at 390 (same); Saffie,
494 U.S. at 488 (same). As the Supreme Court’s repeated
formulation of the Teague inquiry has made clear, Teague
asks not only (1) whether a rule is required by (or deeply
embedded in)* the Constitution, but aiso (2) whether
existing precedent compelled that conclusion at the tine
the petitioner’s conviction became final.

By "existing precedent," the Court could not have
meant the Constitution itself. Otherwise, the Teague
- inquiry would not only be rendered circular (that is,
Teague would ask whether "the Constitution compelled the
conclusion that the rule the petitioner seeks is required by
the Constitution"), but also toothless. Even if a rule was
not compelled by Supreme Court decisions, a federal
court would always be able io circumvent Teague sin jly
by concluding that the rule had always been “deeply
embedded in the fabric" of the Constitution. (Indeed, it is

6. It is unclear whether the majority would create a separate
Teague inquiry for rules that are “deeply embedded in" the
Constitution, as opposed to those that are merely “required by" the
Constitution. Such a distinction is entirely without support in the
Supreme Court’s Teague jurisprudence.

4.

nai iecine tbtie BAS Mtl

49

the rare case in which a federal court applies a
constitutional rule of criminal procedure that the court
does not believe to be "deeply embedded in the fabric" of
some constitutional provision, or combination thereof.) If
the Supreme Court had intended the result reached by the
majority, it would simply have omitted the words "by
existing precedent" from the Teague inquiry, and would
have stated thaf®a rule is not barred by Teague if state
courts would "have felt compelled [ ] to conclude that the
rule the petitioner seeks was required by the
Constitution." But see Saffle, 494 U.S. at 488 (Teague
asks whether state courts would “have felt compelled by
existing precedent.to cOnclude that the rule [the
petitioner] seeks was ‘required by the Constitution.")
(emphasis added).

Even if there were a "déeplembedded-in-the-fabric"
exception to Teague, the Supreme Court’s summary of its
juror-bias decisions in Smith v. Phillips makes it clear that

7. The majority's argument that no reasonabie jurist would fail
to impute bias auicmatically to the majority's parade of horrible
jurors (the mother of one of the ictims, Dyer’s ex-wife, the District
Attorney, etc.), see Maj. Op. at Sis flawed for two reasons. First,
irrespective of whether they had all “sy-orn to be faiz," id., these
hypothetical jurors (unlike Juror Freeland) ciearly would not have
survived application of Cali ’s ows juror bias laws. See Weathers
v. Kaiser Found. Hosp., ¥ B, 110 & n. 5, 95 Cal.Rptr. 516, 485
P.2d 1132 (1971) (intentional concealment on voir dire constitutes
grounds for new trial). Lest we forget, we sit as a federal court in
habeas review of the California courts, which found no bias (as a
matter of either state or federal law) in this case.

Even in the unlikely event that, as the majority suggests, the
federal Constitution itself requires courts to impute bias to jurors (in
the absence of a showing Of intentional concealment), we are
nonetheless barred by Teague. from applying an implied-bias rule

existing precedent compelled that rule at the time Dyer’s
n became final. The majority simply fails to point to any

. sych compelling precedent.

50

it would not apply here. The Smith Court stated, in
pertinent part:

In argument before this Court, respondent ...
contends that a court ¢.not possibly ascertain
the impartiality of a juror by relying solely upon
the testimony of the juror in question. Given the
human propensity for self- justification,
respondent argues, the jaw must impute bias to
jurors in Smith’s position. We disagree.

This court has long held that the remedy for
allegations of juror partiality is a hearing in
which the defendant has the opportunity to
prove actual bias. For example....

Smith, 455 U.S. at 215 (emphasis added). Significantly, the
Smith Court then proceeded to support this view by
summarizing the Court’s juror-bias jurisprudence,
including its decisions in Dennis v. United States, 339 U.S.
162, 70 S.Ct. 519, 94 L.Ed. 734 (1950), Remmer v. United
States, 347 U.S. 227, 74 S.Ct. 450, 98 L.Ed. 654 (1954),
and Chandler v. Florida, 449 U.S. 560, 101 S.Ct. 802, 66
L.Ed.2d 740 (1981). Even if the majority’s historical
sketch of juror-bias cases were somehow more accurate
than that provided by the Smith Court (I respectfully
submit that it is not), reasonable state judges sitting in
1988 were entitled to rely on the Smith maijority’s
interpretation of precedent for the proposition that
implied bias is not constitutionally required. Such state
judges certainly could not have been expected to foresee

8. As its discussion of these juror-bias cases demonstrates, the
Smith Court’s statement that it had “long held that the remedy for
allegations of juror partiality is [an actual bias hearing]," id. at 215,
was not limited to any particular factual situation.

51

our own interpretation of that precedent, decreed a
decade later in 1998!

The majority’s contention that "[n]o opinion in the
two centuries of the Republic-except the dissent in our
case-has suggested that a criminal defendant might
lawfully be convicted by a jury tainted by implied bias,"
Maj. Op. at 8603, is beside the point for three reasons.
First, even assuming that the Supreme Court had not said
that "the Constitution does not require an implied- bias
rule," it certainly does not follow that the Court has said
that "the Constitution does require an implied-bias rule";
only the second proposition is important under Teague.
Second, while no court has uttered the precise words used
by the majority, many reasonable jurists have concluded,
in light of existing precedent, that defendants must
demonstrate actual bias to obtain a new trial. See, e.g.,
Irons v. Lockhart, 741 F.2d 207, 208 (8th Cir.1984) ( “In
Smith v. Phillips .. the Supreme Court held that a
petitioner who seeks habeas corpus relief based on an
allegation of juror bias must prove actual bias, either in a
state court or federal court hearing, and that a court
cannot impute bias based on the petitiorer’s bare
allegations."); Rogers v. McMullen, 673 F.2d 1185, 1189
(11th Cir.1982) ("The Supreme Court [in Smith v. Phillips]
rejected the implied bias argument and held that due
process requires only that a defendant have the
opportunity at a post-trial hearing to prove actual bias.");
United States v. Whiting, 538 F.2d 220, 223 (8th Cir.1976)
("Where an attack is made upon the integrity of the trial
by reason of alleged misconduct on the part of a juror in
failing to disclose information pertinent to the issue of
prejudice, the defendant’s burden of proof must be
sustained not as a matter of speculation, but as a
demonstrable reality. No demonstration of intentional or
knowing withholding of information by [the juror] is made
here."). Finally, contrary to what the majority suggests,

52

nowhere does this dissent take a position on whether the
Constitution actually requires an implied-bias rule; rather,
it simply observes that reasonable jurists could conclude
that such a rule was not required at the time Dyer’s
conviction became final.

Buried beneath the majority’s "fabric of due process"
lies one relevant enduring fact. That is, Supreme Court
precedent did not compel the conclusion that an
implied-bias rule was required by the Constitution at the
time Dyer’s conviction became final. Cf. Tinsley v. Borg,
895 F.2d 520, 527 (9th Cir.1990) ("The Supreme Court has
never explicitly adopted or rejected the doctrine of
implied bias.").

IV

We next examine whether, as of the date Dyer’s
conviction became final, the decisions of the lower federal
courts would have compelled state courts to conclude that
an implied-bias rule was constitutionally required. Because
a state court could reasonably have concluded--and
perhaps should have concluded--that it was not bound by
any lower federal court’s interpretation of the United
States Constitution on any matter, it follows a fortiori that
lower federal court decisions would not have bound that
state court with respect to the specific question of implied
bias.

As of 1988,” at least three federal courts of appeals

9. We must determine whether a state court would have felt
bound by lower federal court decisions based upon a reasonable
interpretation of existing precedent at the time Dyer’s conviction
became final. To hold a decade after the fact that state courts were
bound by precedent that reasonable jurists would not have viewed as
binding would be to turn Teague on its head. As the Supreme Court

53

had concluded that, with respect to the interpretation of
federal law, state courts are bound only by the decisions
of the United States Supreme Court, and not by the
decisions of the lower federal courts.“ See Bromley v.
Crisp, 561 F.2d 1351, 1354 (10th Cir.1977) ("[T]he
Oklahoma Courts may express their differing views on the
retroactivity problem or similar federal questions until we
are all guided by a binding decision of the Supreme
Court."); United States ex rel. Lawrence v. Woods, 432 F.2d
1072, 1074 (1972) ("The federal Circuit Courts of Appeals
and, in respect to federal law, the state courts of last
resort, are subject to the supervisory jurisdiction of the
Supreme Court of the United States. They are, however,
as to the laws of the United States, co-ordinate courts.")
(quoting Iowa Nat'l Bank v. Stewart, 214 Iowa 1229, 232
N.W. 445, 454 (1930)); Owsley v. Peyton, 352 F.2d 804, 805

stated in O’Dell v. Netherland, --- U.S. ----, 117 S.Ct. 1969, 138
L.Ed.2d 351 (1997), "[a]t bottom, ... the Teague doctrine ‘validates
reasonable, good-faith interpretations of existing precedents made by
state courts even though they are shown to be contrary to later
decisions.’ " Jd. at 1973 (quoting Butler v. McKellar, 494 U.S. 407, 414,
110 S.Ct. 1212, 108 L.Ed.2d 347 (1990)). It follows that Teague
"validates reasonable, good- faith interpretations of existing
precedents" concerning the binding effect of “existing precedents."
Butler, 494 US. at 414.

10. In Yniquez v. Arizona, 939 F.2d 727 (9th Cir.1991), decided
three years after Dyer’s conviction became final, we stated in dicta
that "[dJespite the authorities that take the view that the state courts
are free to ignore decisions of the lower federal courts on federal
questions, we have serious doubts as to the wisdom of this view." Jd.
at 736. However, in vacating our later decision in that case, the
Supreme Court characterized our discussion of the binding effect of
lower federal court decisions on state courts as “remarkable.”
Arizonans for Official English v. Arizona, 520 U.S. 43, 117 S.Ct. 1055,
1064 n. 11, 137 L.Ed.2d 170 (1997) (citing Lockhart v. Fretwell, 506
USS. 364, 375-76, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993) (Thomas, J.,
concurring) (Supremacy Clause does not require state courts to follow
rulings of federal courts of appeals on questions of federal law)).

54

(4th Cir.1965) ("Though state courts may for policy
reasons follow the decisions of the Court of Appeals
whose circuit includes their state, they are not obliged to
do so.") (internal citation omitted). Although the Supreme
Court had, as of 1988, neither adopted nor rejected this
position, several individual Justices had expressed a similar
view. See Steffel v. Thompson, 415 U.S. 452, 482 n. 3, 94
S.Ct. 1209, 39 L.Ed.2d 505 (1974) (Rehnquist, J., joined by
Burger, C.J., concurring); Perez v. Ledesma, 401 U.S. 82,
125, 91 S.Ct. 674, 27 L.Ed.2d 701 (1971) (Brennan, J.,
joined by White and Marshall, JJ., dissenting).

Further, a substantial majority of the state courts that
had addressed this issue, including California’s, had
concluded that they were not bound by the decisions of
the lower federal courts on federal questions. Compare,
e.g., Cowan v. Myers, 187 Cal.App.3d 968, 985, 232
Cal.Rptr. 299 (1986) ("[T]he decisions of the lower federal
courts, even on federal questions, are not binding on this
court."); State v. Webster, 114 Wis.2d 418, 426 n. 4, 338
N.W.2d 474 (1983); State v. Glover, 60 Ohio App.2d 283,
287, 396 N.E.2d 1064 (1978); Greene v. State, 11 Md.App.
106, 110, 273 A.2d 830 (1971), with Handy v. Goodyear
Tire & Rubber Co., 230 Ala. 211, 160 So. 530 (1935);
Kuchenmeister v. Los Angeles & S.L.R., 52 Utah 116, 172
P. 725 (1918). In light of this line of authority, a state
court could reasonably have concluded that it was not
bound by the decisions of any lower federal court on any
federal constitutional issue. Accordingly, such lower
federal court decisions could not "compel" state courts
within the meaning of Teague. Compare Clemmons v.
Delo, 124 F.3d 944, 955 n. 11 (8th Cir.1997) (assuming
without deciding that “when the [Supreme] Court says
firmly dictated by precedent,’ it means Supreme Court
precedent"); Glock v. Singletary, 65 F.3d 878, 885 (11th
Cir.1995) (en banc) (courts of appeals do not "dictate"
particular rule to state courts for Teague purposes), with

55

Jiminez v. Myers, 40 F.3d 976, 979-81 (9th Cir.1994) (using
Ninth Circuit decisions to support conclusion that "totality
of the circumstances" rule was not "new" under Teague).
For this reason, the majority errs in relying upon United
States v. Burr, 25 F. Cas. 49, 50 (D.Va.1807), a federal
district court opinion, for the proposition that Teague is
inapplicable.

Indeed, even assuming that all reasonable state court
judges would have concluded, contrary to the weight of
the authority, that they were bound to follow lower federal
court precedent, Teague would still dictate that such
judges were not compelled to recognize an implied-bias
rule. At the time Dyer’s conviction became final, the
federal courts of appeals were split on the issue of implied
bias. Compare United States v. Eubanks, 591 F.2d 513, 517
(9th Cir.1979) (holding that bias could be implied as a
matter of law), with United States v. Malloy, 758 F.2d 979,
982 n. 6 (4th Cir.1985) (rejecting implied-bias theory and
collecting cases in which other lower federal courts had
done so); see also Debtor Reorganizers, Inc. v. State Bad. of
Equalization, 58 Cal.App.3d 691, 696, 130 Cal.Rptr. 64
(1976) ("As between the decisions of the Ninth Circuit and
[those] of the Fifth Circuit [on federal law], no primacy
inheres in the former, so the persuasiveness of the
conflicting views must depend upon the validity of the
arguments made therein."). A state court judge sitting in
1988 could reasonably have followed those lower federal
courts that had held that a defendant must establish actual
bias to obtain a new trial; perforce, state court judges
were not compelled to adopt the implied-bias rule. See
Lambrix, 117 S.Ct. at 1530 ("[Teague asks] whether no
other interpretation [of existing precedent] was
reasonable.").

V

56

As of the time Dyer’s conviction became final, the
conclusion that an implied- bias rule was required by the
Constitution was not compelled by either: (1) the decisions
of the Supreme Court; or (2) the decisions of the lower
federal courts.

Today the court holds that there is a third source of
compelling authority: Sir Edward Coke’s dictum in Dr.
Bonham’s Case, 77 Eng. Rep. 646, 652 (C.P.1610).”
See Maj. Op. at 8601. Not likely! Our own Supreme Court
has stated that “authority that supports the point in
dictum" does not " ’control[ }’ or ‘dictate[ ]’ the result"
under Teague. See Lambrix, 117 S.Ct. at 1525. The Court
could hardly have intended an exception to this Teague-
based rule, which applies even to the Court’s own

11. The majority opinion states:

In the common law, implied bias can be traced all the way back
to Sir Edward Coke’s dictum in Bonham’s Case that no man
shall be judge in his own cause. See Dr. Bonham’s Case, 77 Eng.
Rep. 646, 652 (C.P.1610). This pedigree neatly disposes of the
state’s argument that implied bias would be a "new rule" barred
by Teague v. Lane, 489 U.S. 288, 109 S.Ct, 1060, 103 L.Ed.2d
334 (1989). Implied bias may indeed be the single oldest rule in
the history of judicial review, as Bonham’s Case is often
identified as the first case in which a court struck down a duly
enacted legislative act. See, e.g., Suzanna Sherry, The Founders’
Unwritten Constitution, 54 U. Chi. L.Rev. 1127, 1130 (1987).

Maj. Op. at 8601. No matter how “old{ ]" such a “rule,” id., state
courts could not have been compelled by precedent to conclude that
it was required by the Constitution. See Lambrix, 117 S.Ct. at 1524.
The list of “old rules" whose application by state courts is not
compelled by precedent (holding that such rules are constitutionally
required) may be limitless, e.g.: The Ten Commandments, see Exodus
20:7-17; “If a man destroy the eye of another man, they shall destroy
his eye," Hammurabi’s Code § 196 (c. 1700 B.C.); and "Do unto
others as you would have them do unto you," Matthew 7:12.

57

opinions, for the dictum of a seventeenth-century English
common-law judge.

I respectfully dissent.

58

Volume 1 of 2

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALFRED R. DYER,
Petitioner-Appellant,

Vv.

ARTHUR CALDERON, Warden,
Respondent-Appellee.

No. 95-99002
D.C. No. CV-89-03454-VRW
ORDER AND OPINION

APPEAL FROM THE UNITED STATES DISTRICT
COURT FOR THE NORTHERN DISTRICT OF
CALIFORNIA

Argued and Submitted
December 14, 1995——Pasadena, California

Filed May 5, 1997
Amended August 19, 1997

59

Before: J. Clifford Wallace, Betty B. Fletcher, and Melvin
Brunetti, Circuit Judges

Opinion by Judge Wallace
Dissent by Judge Fletcher

COUNSEL

Jon B. Streeter, Orrick, Herrington & Sutcliffe, San
Francisco, California, for the petitioner-appellant.

Dane R. Gillette, Deputy Attorney General, San
Francisco, California, for the respondent-appellee.

OPINION
WALLACE, Circuit Judge:

Dyer, a California state prisoner under sentence of
death, appeals from the district court’s denial of his
petition for writ of habeas corpus relief under 28 U.S.C.
§ 2254. We have jurisdiction over this timely appeal
pursuant to 28 U.S.C. §§ 1291 and 2253. We affirm.

I

On November 8, 1980, Dyer (armed with a .38 caliber
handgun), Michael Jackson (Dyer’s stepbrother), and
Cleveland Ario (armed with a .45 caliber semiautomatic
pistol) drove to the home of their friend, Belinda Murray.
She lived in a two-level apartment in Oakland, California,
along with her brother Floyd, her friend Nora Fluker, and
Fluker’s four children. Dyer, Jackson, and Ario brought
cocaine and a bottle of wine, which they drank.

60

Some time later, Belinda Murray’s friend, Bennie
Warren, arrived. Warren had never met Dyer before, but
found him to be "stable-minded," "intelligent," and entirely
in control of himself. Later, Belinda Murray, Dyer,
Jackson, and Ario went upstairs to Belinda’s bedroom.
Warren was told to stay downstairs. Once upstairs, Ario
injected Belinda Murray, Dyer, and himself with a
"speedball"--a mixture of heroin and cocaine. Jackson and
Fluker also used the drugs. Dyer appeared to have
received a small dose, which had no apparent effect on
him.

Dyer, Jackson, and Ario then left Belinda Murray’s
apartment. Belinda and Warren also left, returning later
with gum, cigarettes, and a bottle of wine. At that time,
Floyd Murray was upstairs with Fluker’s sleeping children.
Dyer, Jackson, and Ario returned approximately midnight.
The three went upstairs with Belinda Murray and Warren
to Belinda’s bedroom, where Dyer, Jackson, and Ario
again injected themselves with drugs. Dyer then laid down
on Belinda’s bed, covered his eyes with his arm, and
rested. Ario gave his .45 caliber gun to Belinda Murray,
and she placed it in the closet. Warren left the apartment
soon thereafter, and Jackson and Ario followed.

Dyer arose after about five minutes and appeared
startled. He noticed that his rings were missing and asked
Belinda Murray if his stepbrother Jackson had removed
them from his fingers. Belinda told Dyer that she did not
know, but said that Warren had been nearby when he fell
asleep. Dyer concluded that Warren must have taken his
rings. Dyer told Belinda to give him Ario’s gun, which he
stvcx inside his pants along with his own .38 caliber pistol.
Dyer then asked Belinda to accompany him through the
housing project in search of Warren so he could locate his
missing rings.

geen 4 Tes oe

61

Dyer conversed with Belinda Murray as they walked.
He appeared angry, but not intoxicated. He told her that
he was going to kill Warren if he found him that evening
and if not, he was going to "whip his ass" once he did.

When Belinda Murray and Dyer returned, Belinda
went upstairs while Dyer sat downstairs on the couch.
Belinda heard a knock on the door and, looking out her
bathroom window, saw Warren standing at the front door.
Belinda rushed downstairs and found Dyer pistol-whipping
Warren on the head with both guns. Warren’s face was
bloody and he was almost unconscious. Dyer demanded
that Warren return his rings. Warren denied having them
and Dyer told him, "You better pray my brother has my
rings." At all times during the beating, Dyer appeared
angered, but in control of himself.

Within minutes, Jackson and Ario arrived. Jackson
asked Dyer what was the matter. Dyer, with a gun in
each hand, pushed Jackson away. Jackson, upset by
Dyer’s act, left the apartment. Belinda Murray and Fluker
followed Jackson outside and quieted him down. When
Jackson came back inside, Dyer gave him one of the guns
and Jackson immediately became violent. He pushed
both Belinda Murray and Fluker and told them not to
move. Upon Dyer’s command, Ario searched Warren, but
did not find Dyer’s rings. During the search, Dyer kept
his gun pointed at Warren and told him he was "a dead
man."

Upon hearing Dyer’s threat, Ario told Dyer that if he
killed one of them he would have to kill the others as
well. Dyer replied, "Man, I’m not killing no babies." Ario
then went upstairs to get Floyd Murray. Jackson marched
at gunpoint the four captives--Fluker, Warren, Belinda,
and Floyd Murray--into the back seat of a car. Dyer
joined Jackson and Ario in the front seat.

62

The four hostages urged whomever took the rings to
return them. No one, however, admitted to having the
rings. Jackson finally turned around, gun in hand, and
ordered them to "shut up." Ario said that they should "kill
that bitch first," referring to Belinda Murray. During the
ride, Floyd Murray asked Dyer several times, "Why do you
want to take me out?" Dyer told him to "shut up" and
stuck his gun in Floyd’s face.

After about ten minutes, the car stopped and Dyer
said, "Get out." Dyer pointed the .45 caliber weapon at
the four hostages and instructed them to walk straight
ahead. Jackson ordered them to lie face down on the
ground. Before lying down, Belinda Murray saw that Dyer
still had a gun.

After she lay down, Belinda looked up and could see
"the fire coming" as the first shot was fired. She threw her
arms up over her head and passed out.

Although ordered to lie face down, Floyd Murray
remained on his knees. Warren (who had been a member
of the National Rifle Association since age 13 and was
very familiar with guns) then heard three shots from the
38 caliber revolver come from his left, where Belinda
Murray was lying. He then heard scuffling noises, as if
someone was being beaten. Someone said, "This bitch
ain’t dead yet.". Warren heard a few more shots and
heard someone say, "If she’s not dead now, she’ll be dead
by morning." Warren thought the additional shots also
came from the .38 revolver.

Warren next heard shots from the .45 caliber gun,
{ullowed by more scuffling. He heard someone walk
toward him, looked up, and saw Dyer holding the .45
about a foot away from Fluker. Dyer fired three shots;

63

each time a bullet entered Fluker’s body, Warren "could
feel her fluttering and jumping."

Dyer then stepped in front of Warren, who got up on
his knees. He pointed the gun at Warren’s head and
fired. Warren flipped over backwards and, before losing
consciousness, heard someone say, "If they’re not dead
now, they'll be dead by morning," and someone else say,
"check their pulse."

When Belinda Murray regained consciousness, she
felt someone taking her pulse and heard him say, "The
bitch is not dead." A gun was placed against her head and
Belinda heard three clicks, but the gun did not fire. She
“played dead" until Jackson, Dyer, and Ario left. None of
them appeared intoxicated at any time during the evening.

Eventually, Belinda Murray managed to get up, locate
a phone, and contact an ambulance and the police.
Warren also managed to flag down a police car and was
taken to a hospital.

An autopsy of Floyd Murtay’s body revealed four
gunshot wounds to the head and shoulder, at least two of
which were caused by .38 caliber bullets. An autopsy of
Fluker’s body disclosed three gunshot wounds to the head
and shoulder blade, at least one of which was from a .45
caliber gun and at least one from a .38 caliber gun.

A.

Dyer’s theory of defense was diminished capacity.
Dyer did not deny or attempt to justify his actions.
Instead, he claimed that his own mental faculties were
impaired by his consumption of drugs and alcohol. Dyer
testified that he snorted cocaine and drank wine and
brandy with Jackson and Ario before they went to Belinda

64

Murray’s apartment. At the house, Ario injected him with
a combination of cocaine and heroin.

Dyer testified that when he left Belinda’s apartment
with Jackson and Ario, they went to the home of Delphine
"Dee" Dismuke, where Dyer smoked marijuana, snorted
cocaine, and drank gin. According to Dyer, the three men
then returned to Belinda’s house where Ario injected him
again. Dyer testified that he fell asleep, and after he
woke up, noticed that everyone had left and that his rings,
money, and .38 caliber gun were missing. Dyer said he
asked Belinda Murray what happened to his gun and
whether his brother had his rings. She told him that she
had put his gun in the closet with Ario’s and that she did
not know whether Jackson had his rings. Dyer asked her
who was standing over him when he fell asleep and she
told him that it was Warren. After retrieving both guns,
Dyer testified that he and Belinda Murray walked through
the housing project looking for Warren, and soon returned
when their search was fruitless.

Dyer testified that when Warren arrived at the
Murray house, Belinda Murray opened the door and let
him in. Dyer said that he asked Warren for his rings, they
began arguing, and that Dyer began hitting Warren with
the guns. Dyer admitted pistol-whipping Warren but
testified that he was "confused ... hurt [and] mad" and that
he "didn’t know ... what was actually going on." Dyer
remembered pointing the gun at Jackson and Ario and
pushing them away when they walked in.

The next thing that Dyer said he recalled was sitting
in Jackson’s car with his head down, crying. He said that
Jackson put his arms around Dyer and told him that it
would "be cool." Dyer remembered the car stopping,
exiting the car, and hearing gun shots. He did not
remember whether he fired any of the shots, but did not

65

deny shooting anyone. When asked at trial if he killed
anyone, Dyer said, "It’s possible. I had a gun. I don’t
know."

Dyer recalled being at a friend’s house the following
morning, but could not remember the interim period very
well. Dyer testified that he took some more cocaine at his
friend’s house and then called his mother. She told him
that Fluker and Floyd Murray were dead and that the
police were looking for him. Over four months after the
shootings, Dyer surrendered to the police.

Dyer’s primary witness at trial, Kate B. Yago, M.D.,
was certified as an expert in the area of drugs that
adversely affect the brain. She opined that Dyer had been
suffering from a drug overload at the time of the killings.
Dr. Yago conceded that Dyer should have recalled certain
events in light of his recollection of other events.
Responding to a hypothetical question, Dr. Yago testified
that a person such as Dyer "would have [had] to [have]
be[en] clearheaded" to have acted the way he did. She
was unable to name any drug- induced conditions that
could account for Dyer’s selective memory loss, but
indicated that the drugs Dyer ingested, in isolation, often
cause loss of memory. When asked if she could think of
any medical explanation for a hypothetical situation based
on Dyer’s testimonial account of his mental state on the
night of the killings, Dr. Yago testified, "If I am to believe
your hypothetical, then I can’t."

B.

The State presented no penalty-phase evidence, other
than proof of Dyer’s prior robbery and burglary
convictions. Dyer called co-workers, his mother, and a
psychologist, Dr. Thomas Hilliard, to testify at the penalty
phase.

66

Dr. Hilliard interviewed Dyer three times. He found
Dyer to be a polite, low- keyed, soft-spoken, and a
cooperative man who was not evasive or malingering.
Dyer was coherent, alert, and well-oriented, except for his
"spotty, incomplete and confused" memory of the night of
the shootings. Hilliard testified that he detected signs of
"depression, anxiety and tension." Several times during
the interviews, Dyer broke down and sobbed for a while
before regaining his composure. Dr. Hilliard told the jury
about Dyer’s personal history, from infancy to the time of
the killings.

Two of Dyer’s co-workers testified about Dyer’s
dependable work habits as a bus driver and about his
ability to work well with children. Dyer’s mother testified
about his childhood and character.

We review de novo the denial of Dyer’s petition for
writ of habeas corpus. Bonin v. Calderon, 59 F.3d 815,
823 (9th Cir.) (Bonin), cert. denied, 516 U.S. 1051, 116
S.Ct. 718, 133 L.Ed.2d 671 (1996). However, findings of
fact made by the district court underlying its denial of
Dyer’s petition are reviewed for clear error. Id.

During the pendency of Dyer’s appeal, Congress
enacted the Antiterrorism and Effective Death Penalty
Act of 1996 (Act), 142 Cong.Rec. H3305-01 (1996) (to be
codified at 28 U.S.C. § 2261). The Act does not
retroactively apply to Dyer’s appeal. Jeffries v. Wood, 103
F.3d 827 (9th Cir.1996) (en banc).

II

Dyer contends that the presence of Jessica Freeland
on the jury deprived him of his constitutional right to an
impartial jury. He argues that Freeland was dishonest
during voir dire, intentionally failing to disclose certain

67

relevant information. Alternatively, Dyer argues that even
if Freeland’s false answers were given in good faith, we
should presume Freeland was biased.

A.

Prior to jury selection for Dyer’s trial, each
prospective juror was given written questions about
employment, residence, family, experience with criminal
proceedings, prior jury service, and prior contact with law
enforcement personnel. When asked orally during voir
dire, Freeland answered, "No" to the following questions:

13. Have you or any of your relatives or close
friends ever been the victim of any type of
crime?

*x* * *

15. Have you or any of your relatives or close
friends ever been accused of any offense other
than traffic cases?

After the jury returned its guilt-phase verdict, Dyer
learned that Freeland’s brother Richard had been killed
five to ten years earlier. The trial court called Freeland
into chambers with counsel and conducted a hearing in
absence of the jury. Freeland admitted that her brother
had been shot and killed approximately five years earlier.
She said she did not know whether any legal proceedings
were instituted against "the man that accidentally shot
him." Freeland explained that she answered "no" to
Question 13 because she believed her brother’s death was
an accident and not a crime. She stated that she c

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_1614%3A2. Public record. Not legal advice.