Divine intervention? The threat of religious discussion in the context of capital sentencing deliberations: Fields v. Brown, 503 F.3D 755 (9th Cir. 2007) (en banc)

University of Cincinnati Law Review

Volumn 76, Issue 4, 2008, Pages 1401-1430

  Shively, Nicholas G ^a  

^a UNIVERSITY OF CINCINNATI   (United States)

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EID: 52449096741     PISSN: 00096881     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (221)

1. See, e.g., Witherspoon v. Illinois, 391 U.S. 510, 519 (1968) ("[A capital jury] express[es] the conscience of the community on the ultimate question of life or death.").
2. See, e.g., Gary P. Simson & Stephen P. Garvey, Knockin' on Heaven's Door: Rethinking the Role of Religion in Death Penalty Cases, 86 CORNELL L. REV. 1090, 1120 (2001).
3. See, e.g., Gregg v. Georgia, 428 U.S. 153, 188 (1976) (plurality opinion) (recognizing "that the penalty of death is different in kind from any other punishment imposed under our system of criminal justice").
4. 503 F.3d 755 (9th Cir. 2007) (en bane).
5. Id. at 761.
6. Id.
7. Id. at 761-63.
8. People v. Fields, 673 P.2d 680 (Cal 1984).
9. Id. at 708-09.
10. Fields, 503 F.3d at 777.
11. Id. at 777-78.
12. Id. at 778-79.
13. Id. at 777-78. See Exodus 21:23-27.
14. Romans 13:1-5 (emphasis added), quoted in Fields, 503 F.3d at 777 n.15. The Biblical passages quoted in favor of the death penalty included the following: "Whoso sheddeth man's blood by man shall his blood be shed, for in the image of God made He man." Genesis 9:6, quoted in Fields, 503 F.3d at 777 n.15. The side notes in favor of the death penalty included the following: "placate gods," "eye for eye," "deterrence," "Fitting punishment to crime," "Rights of victim," "Duty of the state to protect citizens." Fields, 503 F.3d at 777 n.15.
15. Fields, 503 F.3d at 778. The "against" side notes contained five entries, including the following: "No real deterrent value," "Discriminatory selection," "Rehabilitation," and "Popular feelings." Id. at 777 n.15.
16. Id. at 800.
17. Id.at 755.
18. See Fields v. Brown, 431 F.3d 1186 (9th Cir. 2005).
19. Fields, 503 F.3d at 783.
20. See U.S. CONST, amend. VI ("In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury .. .").
21. Patrick E. Higginbotham, Juries and the Death Penalty, 41 CASE W. RES. L. REV. 1047, 1047, 1052 (1991). Section 2 of Article III of the U.S. Constitution states that "the Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed.... " U.S. CONST, art. III, § 2, cl. 3. The Sixth Amendment states that "the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed .. .." U.S. CONST, amend. VI.
22. See, e.g., Gregg v. Georgia, 428 U.S. 153, 181 (1976) (declaring that the jury serves as a "significant and reliable objective index of contemporary values"); Lowenfield v. Phelps, 484 U.S. 231, 238 (1988) (declaring that the government has a strong interest in having the jury "express the conscience of the community on the ultimate question of life or death" (quoting Witherspoon v. Illinois, 391 U.S. 510, 519(1968))).
23. See, e.g., Furman v. Georgia, 408 U.S. 238, 293 (1972) (Brennan, J., concurring) (comparing the institution of capital punishment to a game of chance, stating, "When the punishment of death is inflicted in a trivial number of the cases in which it is legally available, the conclusion is virtually inescapable that it is being inflicted arbitrarily. Indeed, it smacks of little more than a lottery system.").
24. See People v. Marshall, 790 P.2d 676, 699-700 (Cal. 1990) ("The jury system is an institution that is legally fundamental but also fundamentally human. Jurors bring to their deliberations knowledge and beliefs about general matters of law and fact that find their source in everyday life and experience. That they do so is one of the strengths of the jury system. It is also one of its weaknesses: it has the potential to undermine determinations that should be made exclusively on the evidence introduced by the parties and the instructions given by the court."). See also Dean Sanderford, The Sixth Amendment, Rule 606(b), and the Intrusion into Jury Deliberations of Religious Principles of Decision, TENN. L. REV. 167, 173 (2007).
25. See Sanderford, supra note 24.
26. FED. R. EVID. 606(b) ("Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon that or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith. But a juror may testify about (1) whether extraneous prejudicial information was improperly brought to the jury's attention, (2) whether any outside influence was improperly brought to bear upon any juror, or (3) whether there was a mistake in entering the verdict onto the verdict form. A juror's affidavit or evidence of any statement by the juror may not be received on a matter about which the juror would be precluded from testifying.").
27. See, e.g., Tanner v. United States, 483 U.S. 107, 121 (1987) ("Federal Rule of Evidence 606(b) is grounded in the common-law rule against admission of jury testimony to impeach a verdict and the exception for juror testimony relating to extraneous influences."); Martinez v. Food City, Inc., 658 F.2d 369, 373 (5th Cir. 1981) (recognizing that Rule 606(b) largely codified the common law as developed by the Supreme Court); United States v. Hoick, 398 F. Supp. 2d 338, 364 (E.D. Pa. 2005) (same).
28. See FED. R. EVID. 606(b).
29. See Sanderford, supra note 24.
30. See McDonald v. Pless, 238 U.S. 264, 267 (1915).
31. See James W. Diehm, Impeachment of Jury Verdicts: Tanner v. United States and Beyond, 65 ST. JOHN'S L. REV. 389, 397 (1991).
32. See McDonald, 238 U.S. at 267-68 ("[T]he result would be to make what was intended to be a private deliberation, the constant subject of public investigation; to the destruction of all frankness and freedom of discussion and conference.").
33. See id.
34. See id.
35. See Diehm, supra note 31.
36. See, e.g., In re Beverly Hills Fire Litig., 695 F.2d 207, 213 (6th Cir. 1982) (observing that the rule against juror impeachment of a verdict "guarantees that jurors cannot manipulate the system when their views are in the minority by repudiating an earlier verdict and obtaining a mistrial").
37. 347 U.S. 227(1954).
38. Id. at 229.
39. 379 U.S. 466, 473-74(1965).
40. 385 U.S. 363, 363-64 (1966) (per curiam).
41. Id. (quoting Patterson v. Colorado, 205 U.S. 454, 462 (1907)).
42. See FED. R. EVID. 606(b).
43. See Sanderford, supra note 24, at 182.
44. See id. at 183.
45. See id.
46. See, e.g., United States ex rel. Owen v. McMann, 435 F.2d 813, 818 (2d Cir. 1970) (quoting United States v. McKinney, 429 F.2d 1019, 1022-23 (5th Cir. 1970)).
47. Sanderford, supra note 24, at 183. See also People v. Marshall, 790 P.2d 676, 699-700 (Cal. 1990) ("The jury system is an institution that is legally fundamental but also fundamentally human. Jurors bring to their deliberations knowledge and beliefs about general matters of law and fact that find their source in everyday life and experience. That they do so is one of the strengths of the jury system. It is also one of its weaknesses: It has the potential to undermine determinations that should be made exclusively on the evidence introduced by the parties and the instructions given by the court.").
48. 109 P.3d 616, 618-20 (Colo. 2005) (en banc).
49. Id. at 619-20.
50. Id. at 620.
51. Id. at 622.
52. Id.
53. Id. (quoting Leviticus 24:20-21; Romans 13:1).
54. Id.
55. Id.
56. See id.
57. Id. at 625, 629.
58. Id. at 629.
59. Id.
60. Id.
61. Id.
62. Id. at 632.
63. Id.
64. Id.
65. Id. at 638 (Rice, J., dissenting).
66. Id. at 632 (majority opinion).
67. 706 F. Supp. 1534, 1558 (N.D. Ga. 1989).
68. Id.
69. Id.
70. Id. at 1560. The court noted that it does not suggest that jurors are prohibited from relying on their personal faith when facing the "awesome decision" of whether to impose the sentence of death. Id.
71. 82 P.3d 1249, 1268 (Cal. 2004).
72. Id. at 1271, 1281.
73. See id. at 1275-1278.
74. Id.
75. Id. at 1288-89 (Moreno, J., concurring and dissenting).
76. Id.
77. Id. at 1268-71 (majority opinion).
78. Id. at 1269 (alteration omitted).
79. See id. at 1281-85 (Kennard, J., concurring and dissenting).
80. Id. at 1284.
81. Id.
82. See id. at 1285-94 (Moreno, J., concurring and dissenting).
83. Id. at 1286.
84. See id. at 1286-87.
85. Id.
86. 503 F.3d 755, 783 (9th Cir. 2007) (en banc).
87. See id. at 783-803 (Could & Berzon, J.J., dissenting).
88. Id. at 779 (majority opinion).
89. Id. (alteration omitted).
90. See id.
91. See id.
92. See id. at 780-83.
93. Id. at 778-79 (quoting Rodriguez v. Marshall, 125 F.3d 739, 745 (9th Cir. 1997)).
94. See id.
95. See id.
96. See id. at 779-80. The majority cited the following cases where the Ninth Circuit has found improper extraneous influence: United States v. Armstrong, 654 F.2d 1328, 1331-32 (9th Cir. 1981) (a juror received a threatening telephone call at home); Jeffries v, Blodgett, 5 F.3d 1180, 1191 (9th Cir. 1993) (a jury learned that the defendant had committed a prior armed robbery); Lawson v. Borg, 60 F.3d 608, 612 (9th Cir. 1995) (a juror told others about the defendant's reputation for violence); Caliendo v. Warden of Cal. Men's Colony, 365 F.3d 691, 698 (9th Cir. 2004) (three jurors, during a recess, had a twenty-minute conversation, factually unrelated to the trial, with a detective who provided crucial testimony).
97. 125 F.3d 739, 745 (9th Cir. 1997).
98. 870 F.2d 1454, 1462 (9th Cir. 1989).
99. Id.
100. Fields, 503 F.3d at 780.
101. Id.
102. See id.
103. Id. at 781.
104. See id.
105. Id.
106. Id. at 782. Before beginning penalty-phase deliberations, the jury was instructed that "[a]fter having considered all of the evidence in this case and having taken into account all of the applicable factors upon which you have been instructed, you shall determine whether the penalty to be imposed on defendant shall be death or confinement... for life without the possibility of parole." Id. at 792-93 (alteration in original) (footnote omitted).
107. Id. at 781 n.22.
108. Id.
109. Id. at 784 (Gould, J., dissenting).
110. Id.
111. Id.
112. Id. at 786.
113. See id.
114. See id.
115. Id.
116. Id. at 788.
117. Id. at 787.
118. The jury had access to the foreperson' s notes for approximately 70% of the total time the jury deliberated. Id. at 787.
119. Id. at 788 (emphasis added). The majority contended that such a statement is precluded by Federal Rule of Evidence 606(b). In response, Judge Gould stressed that his observation-that a majority of jurors, before seeing the written Bible quotations, were favoring a life sentence-was not a subjective discussion on whether the Biblical quotations caused the jurors to change their votes. Rather, it was the starting point in conducting an objective analysis. Id.
120. Id. at 797 (Berzon, J., dissenting).
121. Id. at 793 (quoting United States v. Madrid, 842 F.2d 1090, 1093 (9th Cir. 1988)).
122. Id.
123. Id.
124. Id. at 795.
125. Id.
126. Id.
127. Id. See infra note 143 and accompanying text.
128. Fields, 503 F.3d at 796 (Berzon, J., dissenting).
129. Id.
130. Id. See also Robinson v. Polk, 438 F.3d 350, 374 (4th Cir. 2006) (King, J., dissenting).
131. Fields, 503 F.3d at 796 (Berzon, J., dissenting).
132. Id.
133. Id.
134. Id. at 803.
135. Id. at 799.
136. Id. at 798. Judge Berzon reasoned that the foreperson presumably thought that reviewing the Biblical passages at home had affected his perception of deliberations and that it might have a similar impact on others if brought into the jury room; otherwise, "[w]hy would he spend the time hand copying the material if the jury was close to a decision, in which case his work was likely to be for naught?" Id. See also Gibson v. Clanon, 633 F.2d 851, 854 (9th Cir. 1980) ("[T]He fact that at least two jurors believed that it was necessary to obtain more evidence is, by itself, an indication that there may have been a need to resolve some lingering hesitation or uncertainty.").
137. Fields, 503 F.3d at 798-99 (Berzon, J., dissenting).
138. 241 F.3d 765, 775, 779 (9th Cir. 2000), quoted in Fields, 503 F.3d at 798-99.
139. Fields, 503 F.3d at 799 (Berzon, J., dissenting). See also Gibson, 633 F.2d at 854 ("[W]hen a jury considers facts that have not been introduced in evidence .... the violation may be more serious than where these rights are denied at some other stage of the proceedings because the defendant may have no idea what new evidence has been considered. It is impossible to offer evidence to rebut it, to offer a curative instruction, to discuss its significance in argument to the jury, or to take other tactical steps that might ameliorate its impact."), quoted in Fields, 503 F.3d at 799.
140. PEW RESEARCH CENTER, AMONG WEALTHY NATIONS-U.S. STANDS ALONE IN ITS EMBRACE OF RELIGION (2002), available at http://pewglobal.org/reports/display.php?ReportID=167. According to a 2002 study by the Pew Research Center, the United States was the only developed nation in the survey where a majority of citizens reported that religion played a "very important" role in their lives, an attitude similar to that found in its neighbors in Latin America. Id.
141. Currently, about 14% of the population does not identify itself as a member of any religion. U.S. CENSUS BUREAU, STATISTICAL ABSTRACT OF THE UNITED STATES: 2004-2005, at 55-56, available at http://www.census.gov/prod/2004pubs/ 04statab/pop.pdf.
142. Robinson v. Polk, 444 F.3d 225, 228-29 (4th Cir. 2006) (Wilkinson, J., concurring) (quoting Taylor v. Louisiana, 419 U.S. 522, 527 (1975)).
143. See, e.g., Romans 12:17-19 (King James) ("Recompense to no man evil for evil. Provide things honest in the sight of all men. If it be possible, as much as lieth in you, live peaceably with all men. Dearly beloved, avenge not yourselves, but rather give place unto wrath: for it is written, Vengeance is mine; I will repay, saith the Lord.").
144. See Sanderford, supra note 24, at 173-75.
145. See id. at 175.
146. See id. at 175.
147. See id.
148. See Terrence T. Egland, Comment, Prejudiced by the Presence of God: Keeping Religious Material Out of Death Penalty Deliberations, 16 CAP. DEF. J. 337, 340 (2004).
149. See Field v. Brown, 503 F.3d 755, 796 (9th Cir. 2007) (Berzon, J., dissenting).
150. See Robinson v. Polk, 444 F.3d 225, 227 (4th Cir. 2006) (Wilkinson, J., concurring).
151. See Egland, supra note 148.
152. Of course, religious text may be interpreted differently over time, or even rewritten altogether.
153. See Egland, supra note 148, at 342.
154. See id.
155. See Sanderford, supra note 24, at 185.
156. See, e.g., Parker v. Gladden, 385 U.S. 363, 363-64 (1966) (per curiam) (finding outside influence when bailiff made disparaging remarks about the defendant). See also Sanderford, supra note 24, at 181.
157. Sanderford, supra note 24, at 184.
158. See supra notes 96-102 and accompanying text.
159. Sanderford, supra note 24, at 182.
160. See id. at 183.
161. See id.
162. See People v. Harlan, 109 P.3d 616, 629 (Colo. 2005), cert, denied, 546 U.S. 928 (2005). See supra notes 48-61 and accompanying text.
163. See Harlan, 109 P.3d at 632.
164. Id. at 638 (Rice, J., dissenting).
165. Id. at 632 (majority opinion).
166. See Sanderford, supra note 24, at 192.
167. See id.
168. See id.
169. See Fields v. Brown, 503 F.3d 755, 780 (9th Cir. 2007).
170. See Sanderford, supra note 24, at 186. See also Hard v. Burlington N. R.R. Co., 870 F.2d 1454, 1462 (9th Cir. 1989) ("It is expected that jurors will bring their life experiences to bear on the facts of a case.").
171. See Sanderford, supra note 24, at 186.
172. See id.
173. 393 F.3d 871, 878-79 (9th Cir. 2004).
174. Id. See Fields, 503 F.3d at 779.
175. Fields, 503 F.3d at 779.
176. 125 F.3d 739 (9th Cir. 1997).
177. 870 F.2d 1454 (9th Cir. 1989).
178. See supra notes 96-102 and accompanying text.
179. Rodriguez, 125 F.3d at 739.
180. Hard, 870 F.2d at 1454.
181. See id.
182. See Sanderford, supra note 24, at 187.
183. See id.
184. See CAL. PENAL CODE § 190.3 (West 1977).
185. See Fields v. Brown, 503 F.3d 755, 785-86 (Gould, J., dissenting).
186. See id.
187. See id.
188. See id. See also Robinson v. Polk, 444 F.3d 225, 227 (4th Cir. 2006) (Wilkinson, J., concurring) ("And the First Amendment plainly illustrates that religion poses unique concerns within our legal system. The Constitution does not, therefore, allow religious considerations to replace legal ones.").
189. See Fields, 503 F.3d at 779 (majority opinion).
190. Id.
191. Id. at 800 (Berzon, J., dissenting).
192. Id.
193. Id.
194. See id. at 781 (majority opinion).
195. Id. at 780 (contending that the foreperson's notes were "a mix of ideas 'for' and 'against' capital punishment").
196. See id. See also id. at 801 (Berzon, J., dissenting) ("[T]he effect of the Biblical material was exclusively in favor of capital punishment. [The foreperson's] 'against' notes... were not quotations at all - let alone lengthy Biblical quotations - and reflected no external research.").
197. Id. at 781 (majority opinion).
198. Id. at 801 (Berzon, J., dissenting).
199. See id. at 787 (Gould, J., dissenting) ("[H]ere the conclusion is inescapable that the jury did not follow the trial court's instructions.... [T]he jury was not to consider external materials, including the dictionary or the Bible, during its penalty phase deliberations. But that is precisely what they did.").
200. See People v. Danks, 82 P.3d 1249, 1272 (Cal. 2004).
201. Id.
202. See, e.g., United States v. Bassler, 651 F.2d 600, 603 (8th Cir. 1981) (reasoning that, because Rule 606(b) precludes courts from probing into the subjective effects of extrinsic material on jurors, "whether such effects might be shown to affirm or negate the conclusion of actual prejudice, a presumption of prejudice is created and the burden is on the government to prove harmlessness").
203. Fields, 503 F.3d at 802 (Berzon, J., dissenting).
204. See supra Part III.A.
205. Fields, 503 F.3d at 780 (majority opinion).
206. 241 F.3d 765 (9th Cir. 2001). See supra notes 137-39 and accompanying text.
207. Fields, 503 F.3d at 781.
208. See supra Part IV.C.2.
209. See Fields, 503 F.3d at 800 (Berzon, J., dissenting).
210. Id.
211. Id.
212. Id.
213. Id.
214. Id. 215. See id. at 786 (Gould, J., dissenting).
215. Id. at 801 (Berzon, J., dissenting) (quoting Brecht v. Abrahamson, 507 U.S. 619, 642 n.2 (1993); Kotteakos v. United States, 328 U.S. 750, 765 (1946)).
216. Id. at 802. See also United States v. Rosenthal, 454 F.3d 943, 949 (9th Cir. 2006) ("Extraneous-information cases... call for more searching review; we grant a new trial if 'there is a reasonable possibility that the material could have affected the verdict.'... [W]e generally place the burden 'on the party opposing a new trial to demonstrate the absence of prejudice.'" (emphasis omitted) (citation omitted) (quoting Sea Hawk Seafoods, Inc. v. Alyeska Pipeline Serv. Co., 206 F.3d 900, 906 (9th Cir. 2000))).
217. See supra notes 21, 22, 142 and accompanying text.
218. See supra notes 153-54 and accompanying text.
219. See Sanderford, note 24, at 193.
220. See id. at 193.
221. See, e.g., People v. Harlan, 109 P.3d 616, 630 (Colo. 2005) (en banc). See supra notes 62-65 and accompanying text.