Juries rely all the time on their personal experience and knowledge -- but they're not allowed to rely on authority or evidence beyond what they hear in trial. A Ninth Circuit opinion today shows that sometimes the line between the two means life itself.
For and against
It's the sentencing phase of Stevie Fields's 1979 death penalty murder trial in California. The jury foreman's name is Rodney White. After the first day of deliberations, White goes home, pulls out his Bible, and starts making notes. The next day, he shares with other jurors the handwritten"For" and "Against" list he has made. "For" death, that is, and against death. His notes list these pros:
- “placate gods”
- “eye for eye”
- “deterrence”
- “Fitting punishment to crime”
- “Rights of victim”
- “Duty of the state to protect citizens”
- “Biblical”
- “Genesis 9:6 ‘Whoso sheddeth man’s blood by man shall his blood be shed, for in the image of God made He man’ ”
- “Exodus 21:12 ‘He that smiteth a man, so that he dies, shall surely be put to death’ ”
- “Possibility of Repeated offenses”
- “Murder = a rejection of the values of society”
- “New Test”
- “Romans 13:1-5 ‘Let everyone be subject to the higher authorities, for there exists no authority except from God, and those who exist have been appointed by God. Therefore, he who resists the authority, resists the ordinance of God; and they that resist bring on themselves condemnation
- ‘For rulers are a terror not to the good work but to the evil. Dost thou wish, then, not to fear the authority?
- ‘Do what is good and thou will have praise from it. For it is God[’s] minister to thee for good. But if thou dost what is evil, fear, for not without reason does it carry he sword. For it is God’s minister, an avenger to execute wrath on him who does evil. Wherefore you must needs be subject, not only because of the wrath, but also for conscience’s sake.’ ”
- “Luther, Calvin, Aquinas felt this to be supportive of capital punishment” and
- “Per Paul’s letter to Romans: State has power for two reasons — 1. Satisfy demand’s [sic] of God’s service [and] 2. Protect society by deterring future crime.”
And these cons:
- “No real deterrent value—mostly because murderers not normal”
- “Question of ‘Just’—There is no simple, ‘just,’ penalty”
- “Discriminatory selection”
- “Human fallibility—Perhaps wrong chap convicted.”
- “Rehabilitation”
- “ ‘Popular’ feelings”
The jury sentenced Fields to die. Eighteen years later, the en banc Ninth Circuit Court of Appeals says that was okay. The opinion is Fields v. Brown, decided today.
Majority: it's just like memory
The court's majority, in an opinion by Judge Pamela Rymer, didn't directly decide the question, since they found that "the foreman's notes had no substantial and injurious effect or influence in determining the jury’s verdict." But they were clearly untroubled by the pro-and-con list:
White’s notes are not like these examples [of impermissible extrinsic evidence]. They are a mix of ideas “for” and “against” capital punishment. Both the Biblical verses and the other concepts contained in the notes are notions of general currency that inform the moral judgment that capital-case jurors are called upon to make. As Justice Stevens put it, “[w]hile the question of innocence or guilt of the offense is essentially a question of fact, the choice between life imprisonment and capital punishment is both a question of underlying fact and a matter of reasoned moral judgment.” White’s “for” notes all exposit well-known themes. So do his “against” notes. In effect he marshaled general, commonly known points in favor of the death penalty — “eye for eye,” “deterrence,” “fitting punishment to crime,” “rights of victim,” and the Bible says so — along with general, commonly known points in opposition “no real deterrent value,” “there is no simple, ‘just,’ penalty,” “discriminatory selection,” “rehabilitation,” and “perhaps wrong chap convicted.” Fields nowhere suggests that White was not free to recite these points, including those from the Bible, or to resort to their reasoning. It is difficult to see how sharing notes can be constitutionally infirm if sharing memory isn’t.
(Citations are omitted in all these excerpts; somehow they seem to make blog posts unreadable.) It's not, the majority went on, as though the prosecutor had invoked the Bible:
Fields correctly points out that we have held it is improper and prejudicial for the prosecution to invoke God or to paraphrase a Biblical passage in closing argument in the penalty phase of a capital case. However, the prosecutor is constrained in ways that a juror is not. In Sandoval [the court's 2000 opinion on this topic], as we explained, the prosecutor’s argument frustrated the purpose of the closing argument, which is to review the evidence presented at trial that is relevant to the jury’s decision as defined by the instructions given by the court. Also, the prosecution’s invocation of “higher law” or extra-judicial authority violated the Eighth Amendment principle of narrowly channeled sentencing discretion. Further, we noted that argument involving religious authority undercuts the jury’s own sense of responsibility for imposing the death penalty. None of these considerations applies in similar fashion to a juror; what may be improper or prejudicial when said by a prosecutor may not be so when said by a juror.
Dissent: it's an "extrajudicial code"
The two dissenting opinions focus on the Bible's role as a code of law, not a source of common sayings. Judge Ronald Gould wrote:
The “use by deliberating jurors of an extrajudicial code (not already embodied in their own characters) cannot be reconciled with the Eighth Amendment’s requirement that any decision to impose death must be the result of discretion which is carefully and narrowly channeled and circumscribed by the secular law of the jurisdiction.” California’s death penalty statute provides specific factors the jury is to consider to distinguish “the few cases in which [the death penalty] is imposed from the many in which it is not.” Here, White introduced to the jury deliberations only Bible quotations that were pro death penalty, and left out Bible quotations that spoke to mercy. Moreover, the passages from which White quoted “explicitly reject[ ] the drawing of distinctions in murder cases,” and directed the jury to impose death in any case involving murder. These Bible passages, commanding death, inserted “higher law” into the jury deliberations and unconstitutionally relieved the jury from their individual responsibility to determine whether to commit Fields to death or sentence him to life imprisonment. . . . The Bible’s presence in the jury room as a focus of deliberations, if I may borrow a phrase from Judge Wilkinson, crossed “the constitutional line.”
Judge Marsha Berzon listed cases from other jurisdictions which treat the Bible as extrinsic reference material, and pointed out that the Biblical references were hardly just like memory for White, since he had to look them up:
[I]t is undisputed that White’s notes were the product of overnight Biblical research, rather than of familiarity with the Bible that White already had at the outset of deliberations. The case law proscribing importation of external information places its all on the proposition that this distinction matters: After we choose jurors, we want the decision made on the basis of what went on in the courtroom, filtered through the personalities, background information, and reasoning ability the jurors brought with them to court. But we do not approve of, and regard as misconduct, affirmatively gathering outside information. Further, the lengthy quotations, written down and passed around, conveyed a sense of authority quite different from a paraphrase or one line quotations spoken from memory, not least because they could be consulted repeatedly and outside of White’s immediate presence. The written, lengthy quotations introduced tangibly an external exhortation, that God, or the authors of God’s book — not just juror White — encouraged jurors to disregard the judge’s instructions and vote for the death penalty no matter what. The majority, therefore, is wrong to portray this case as similar to “sharing memory,” and this case does not raise the question of whether jurors act impermissibly by referring to their faith during deliberations.
Death at random
The case looks Supreme-Court-bound, then, on this issue of the line between inner morals and outer authority. But even if the high court were able to draw that line unmistakably -- and it won't be able to -- Fields's case would cast a disturbing shadow.
The problem isn't just that smart judges can differ on whether jurors can cite the Bible. The problem is the random way we found out what this jury did. In the end, it's only coincidence that White wrote his notes down, that he showed the written notes to other jurors instead of simply talking to them about his findings, and that defense counsel somehow found out about it. In another case, a juror might easily consult the Bible (or any other source), invoke its authority to other jurors, and no one would know. Fields may live, and someone else may die, because these coincidences fall one way in one trial and a different way in another. Of all the reasons to leave the death penalty behind, these meaningless variations seem among the most meaningful.
_______________
Notes:
1. This opinion is 99 pages long and I've left out a lot -- like an entirely different issue, even more startling. Judge Berzon summarized it this way, and it's really what happened:
The majority also concludes that we must accept as dispositive a juror’s assertions that he was able to disregard the close resemblance between the unsolved kidnapping and rape of his wife not long before the trial and the crime with which Fields was charged. It does so even though the resemblance was so marked that the juror’s wife became convinced that Fields could have been her assailant and tried repeatedly during the trial to convince her husband to let her attend the trial so she could tell whether he was.
2. Robert Loblaw again covered this case almost instantly in Decision of the Day. (How does he do that?)
(Photo by Dave Bullock at http://www.flickr.com/photos/archangel11/659176288/; license details there.)
