Ninth Circuit OKs jury's use of the Bible in death penalty deliberations.

The U.S. Court of Appeals for the Ninth Circuit has rejected a California death row inmate's claims that the jury's consideration of biblical passages about capital punishment during sentencing deliberations violated his Sixth Amendment rights. (Fields v. Brown, 2007 WL 2580788 (9th Cir. Sept. 10, 2007).)

"It is wrong to consider [the Bible] at trial, let alone in a death penalty case," said David Olson, the Los Angeles attorney who argued the inmate's habeas appeal before the court.

Stevie Lamar Fields has been on California's death row for 28 years, since a jury convicted him in 1979 for the robbery and murder of a student librarian and for crimes against four others, including robbery at gunpoint, kidnapping for robbery, assault with a deadly weapon, and rape. Fields committed these crimes during a three-week spree shortly after his release from prison on a prior manslaughter conviction.

At the end of the jury's first day of sentencing deliberations, the jury foreman went home, took out his Bible, and searched for passages about the death penalty. He made notes of passages supporting it, including "eye for an eye," "fitting punishment to crime," "Whoso sheddeth man's blood by man shall his blood be shed, for in the image of God made He man," and "He that smiteth a man, so that he dies, shall surely be put to death."

The foreman also made general notes of points against imposing the death penalty, including "no real deterrent value--mostly because murderers not normal," and "human fallibility--perhaps wrong chap convicted." He also listed definitions of several words, including "extenuation," "vindication," and "mitigate."

The next morning, the foreman shared the notes with the other jurors, and that afternoon, the jury sentenced Fields to die. The California Supreme Court affirmed both the convictions and the sentence.

Fields sought a federal writ of habeas corpus, claiming that the jury's consideration of the foreman's notes during its sentencing deliberations violated his constitutional rights to cross-examination, confrontation, and the assistance of counsel. The district court granted the writ, finding that the jury's use of the Bible notes offended the principle that religion may not play a role in the sentencing process. On appeal, in a rehearing en banc, the Ninth Circuit reversed that finding and affirmed the death sentence.

Writing for the majority, Judge Pamela Ann Rymer said there was no need for the court to decide whether juror misconduct had occurred because the foreman's notes "had no substantial and injurious effect or influence in determining the jury's verdict." Rather, "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."

The foreman had, in effect, "marshaled general, commonly known points in favor of the death penalty ... along with general, commonly known points in opposition," Rymer wrote.

In her dissent, Judge Marsha Berzon pointed out that the foreman's notes were the result of his research of outside material and "were therefore significant for their factual representation that the Bible contained such statements, apart from the moral philosophy that the statements themselves expressed."

She wrote: "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."

Olson echoed the dissent, noting that there is no empirical support for the majority's premise that the biblical references are general knowledge.

"One of the big problems with the use of these passages is that it is completely contrary to the notion that a case is supposed to be tried on the evidence presented at trial," Olson said. It's misconduct when a prosecutor uses biblical references, he said, but "it's much worse when the jury does it on its own, because we don't know what's going on, the judge cannot give any curative instructions, and the defense has no opportunity to respond."

Anne Reed, an attorney and jury consultant in Milwaukee, noted that jurors bring personal experiences and beliefs into the jury room, "and the law says that's OK." However, by referring to the Bible, "a juror is trying to impose a moral code other than that of the state of California," she said.

Olson, who has represented Fields in his habeas proceedings since 1992, is seeking review by the U.S. Supreme Court. Although he concedes that the odds are against it, he is cautiously optimistic that the Court will hear the case because the issue of religion-based juror misconduct transcends criminal law and has been cropping up more frequently in civil cases.