Ninth Circuit Finds Jurors’ Use of Bible to Give the Death Penalty to the Defendant Was Not Reversible Error
The Mattox–Remmer framework set forth by the Supreme Court governs juror misconduct claims involving consideration of extraneous evidence during deliberations:
At step one, the court asks whether the contact was “possibly prejudicial,” meaning it had a “tendency” to be “injurious to the defendant.” If so, the contact is “deemed presumptively prejudicial” and the court proceeds to step two, where the “burden rests heavily upon the [state] to establish” the contact was, in fact, “harmless.” Kipp v. Davis, 971 F.3d 866 (9th Cir. 2020).
So, if a juror brings the Bible into the jury deliberation room and cited passages, are the first and/or second factors of the Mattox–Remmer framework satisfied?
In Kipp, Martin Kipp was convicted of first-degree murder and related charges. After he was sentenced to death, a juror submitted a declaration that. stated, inter alia,
I recall that during penalty phase deliberations a female juror with dark, shoulder-length hair brought in a Bible and read it to us. She talked about several verses in the Bible, which she told us would help us in making a decision. The jurors talked about standing in judgment of another human being. There was also discussion of the verses which state, ‘an eye for an eye’ and ‘judge not lest ye be judged.’ A little over half of the jurors had a religious background and strong religious beliefs.
According to the Ninth Circuit, under the first step of the framework,
Whether the introduction of the Bible is an impermissible contact-the first step of the Mattox-Remmer framework-is still an open question, at least in our circuit. And circuits that have addressed this question are split. Compare Oliver v. Quarterman, 541 F.3d 329, 339-40 (5th Cir. 2008) (citing the Eleventh, First, and Sixth Circuits as support that “[m]ost circuits have *882 ruled that when a Bible itself enters the jury room, the jury has been exposed to an external influence”) with Robinson v. Polk, 438 F.3d 350, 363-64 (4th Cir. 2006) (holding that the Bible is distinguishable from other types of external influences because “reading the Bible is analogous to the situation where a juror quotes the Bible from memory, which assuredly would not be considered an improper influence”). Our circuit has previously opted to resolve juror misconduct claims involving use of the Bible on prejudice grounds. See, e.g., Fields v. Brown, 503 F.3d 755, 781 (9th Cir. 2007) (en bancCrittenden v. Ayers, 624 F.3d 943, 973 (9th Cir. 2010). Here, we again find it unnecessary to decide the question of whether use of Bible verses during deliberation constitutes misconduct because the state court could have reasonably concluded that any error did not prejudice the jury’s verdict.
And then, under the second step, the Ninth Circuit held that
To prevail on his claim in federal habeas review, Kipp acknowledges that any juror misconduct must have had a “substantial and injurious effect on the verdict.” See Fields, 503 F.3d at 781; Sassounian v. Roe, 230 F.3d 1097, 1108 (9th Cir. 2000). Applying this standard, we have previously found harmless error in other cases with even more troubling use of Bible passages. In Crittenden, the court rejected a misconduct claim based on a juror’s introduction of the passage “[w]ho so sheddeth man’s blood by man shall his blood be shed.” 624 F.3d at 973. In Fields, the juror cited the same passage, as well as “He that smiteth a man, so that he dies, shall surely be put to death.” 503 F.3d at 777, n.15. The Fields court found no prejudice, in part, because there were Biblical verses in support as well as against imposition of the death penalty. Id. at 781. Here, the same logic applies: the verses mentioned in Rivers’s declaration included both “an eye for an eye” and “judge not lest ye be judged,” verses tending to support opposing views. And, in Fields, “[m]ore importantly, the jury was instructed to base its decision on the facts and the law as stated by the judge, regardless of whether a juror agreed with it. We presume that jurors follow the instructions.” Fields, 503 F.3d at 781-82. The jury received similar instructions here.
-CM