                                                      Volume 1 of 2

                     FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

STEVIE LAMAR FIELDS,                       
               Petitioner-Appellant,
                 v.                               No. 00-99005
JILL BROWN,* Warden, of                            D.C. No.
California State Prison at San                   CV-92-00465-DT
Quentin,
              Respondent-Appellee.
                                           

STEVIE LAMAR FIELDS,                       
                Petitioner-Appellee,
                                                  No. 00-99006
                 v.
JILL BROWN,* Warden, of                            D.C. No.
                                                 CV-92-00465-DT
California State Prison at San
                                                    OPINION
Quentin,
             Respondent-Appellant.
                                           
       Appeals from the United States District Court
            for the Central District of California
       Dickran M. Tevrizian, District Judge, Presiding

                 Argued and Submitted
       December 13, 2006—San Francisco, California

                    Filed September 10, 2007

  *Jill Brown is substituted for her predecessor, Jeanne S. Woodford, as
Warden of California State Prison at San Quentin. See Fed. R. App. P.
43(c)(2).

                                11943
11944                 FIELDS v. BROWN
       Before: Mary M. Schroeder, Chief Judge, and
Stephen Reinhardt, Alex Kozinski, Diarmuid F. O’Scannlain,
Pamela Ann Rymer, Sidney R. Thomas, Barry G. Silverman,
      M. Margaret McKeown, Kim McLane Wardlaw,
 Ronald M. Gould, Marsha S. Berzon, Richard C. Tallman,
      Richard R. Clifton, Consuelo M. Callahan, and
               Carlos T. Bea, Circuit Judges.

                 Opinion by Judge Rymer;
  Partial Concurrence and Partial Dissent by Judge Gould;
                  Dissent by Judge Berzon
11948                  FIELDS v. BROWN
                         COUNSEL

David S. Olson, Kulik, Gottesman, Mouton & Siegel, Sher-
man Oaks, California, for the petitioner-appellant/cross-
appellee.

Bill Lockyer, Attorney General; Robert R. Anderson, Chief
Assistant Attorney General; Pamela C. Hamanaka, Senior
Assistant Attorney General; Kristofer Jorstad, Deputy Attor-
ney General; and Keith H. Borjon, Supervising Deputy Attor-
ney General, Los Angeles, California, for the respondent-
appellee/cross-appellant.


                         OPINION

RYMER, Circuit Judge, with whom Chief Judge Schroeder
and Judges Kozinski, O’Scannlain, Silverman, Tallman, Clif-
ton, Callahan, and Bea join, and with whom Judges
McKeown, Wardlaw, and Gould join in Parts I-III.

   Stevie Lamar Fields, a California state prisoner, was con-
victed in 1979 for the robbery and murder of Rosemary
Cobbs, a student librarian at the University of Southern Cali-
fornia; the robbery of Clarence Gessendaner at gunpoint; the
kidnaping for robbery, robbery, rape, forced oral copulation,
and assault with a deadly weapon on Gwendolyn Barnett; the
kidnaping for robbery and forced oral copulation of Cynthia
Smith; and the kidnaping, robbery, rape, and forced oral copu-
lation of Colleen Coates, also a young student at USC. He
was sentenced to death. Both the convictions and sentence
were upheld by the courts of California.

   On the federal side, the district court found no constitu-
tional error in Fields’s conviction, but granted a writ of
habeas corpus on Fields’s claim that the jury considered
extrinsic evidence during the penalty phase. Rehearing cross-
                           FIELDS v. BROWN                         11949
appeals from these rulings en banc, we consider whether
Fields was denied a fair trial on account of juror bias, on
which the district court held an evidentiary hearing at our
request, and whether his sentence should be set aside because
of the jury’s consideration of the foreperson’s notes about the
“pros” and “cons” of capital punishment that included Bibli-
cal references.

   We conclude that the questioned juror’s presence on the
jury did not undermine its impartiality, so we affirm denial of
the writ as to the conviction. As we see no prejudicial consti-
tutional error at the penalty phase, we reverse this part of the
district court’s judgment. The effect is to deny habeas relief,
thereby leaving Fields’s convictions and sentence in place.

                                    I

   Fields was paroled from prison on September 13, 1978,
after serving a sentence for manslaughter for bludgeoning
Albert Allen to death with a bar-bell. Fourteen days later, he
went on a three-week, “one-man crime wave.” People v.
Fields, 35 Cal. 3d 329, 336 (1983) (so describing Fields’s
spree).1

   On September 27, 1978, Fields’s sister Gail saw him with
Rosemary Cobbs, a 26-year-old woman who worked as a stu-
dent librarian at USC, at the Fields residence. When Gail went
into Fields’s bedroom the next morning, Rosemary was naked
on the bed and Fields was standing by the door. Fields handed
Gail a check signed by Cobbs for $185 but, after looking at
her checkbook, he called Rosemary a “bitch” and told her to
write another check for $222. Fields then told Rosemary that
he would “bump her off” because “she run a game on him”
  1
   We take this summary of facts from the opinion of the California
Supreme Court, People v. Fields, 35 Cal. 3d 329, 336-40 (1983), and our
prior opinion in Fields v. Woodford (Fields II), 309 F.3d, 1095, 1098-1100
(9th Cir. 2002), amended by 315 F.3d 1062.
11950                  FIELDS v. BROWN
by writing a check for less than the balance of her account.
Later on the 28th, Debbie, a 16 year-old girl who was the for-
mer girlfriend of Fields’s brother, went to Fields’s residence
and saw Rosemary and Fields go into his bedroom. Fields
came out and asked Debbie if she wanted to see how he pun-
ished his girlfriends. Debbie said “no,” but Fields pushed her
to the door where she saw Rosemary naked and tied to the
bed. Then Fields went into the bedroom with a gun and told
Rosemary that he would kill her if she did not give him
money, and that he was going to take her on a long trip “and
she wasn’t never going to come back.” That afternoon, Deb-
bie saw Fields, Gail, and Rosemary get into a car Gail bor-
rowed from her godfather and drive away. Fields and
Rosemary were in the back seat. As Gail was driving toward
the Santa Monica Freeway, she heard a gunshot and heard
Rosemary cry out: “Oh, God.” Fields told Gail to keep on
driving, and fired four more shots. Still, Fields said Rosemary
was not dead and he needed to be sure she was, so he hit her
in the head with a blunt object. Then Gail drove to an alley
near the Fields residence where Fields left Rosemary’s body.
Debbie saw Fields and Gail return without Rosemary; she
asked about her, and Fields replied, “She was going on a long
trip and was never coming back.” The car that was returned
to Gail’s godfather had two bullet holes in it; a bank official
verified the $222 check from Rosemary to Gail; and Rose-
mary’s purse, driver’s license, and a torn check from Rose-
mary to Gail for $185 were found in Fields’s residence.

   On October 2, 1978, Clarence Gessendaner parked his Pon-
tiac Trans Am outside a drug store. Armed with a gun, Fields
approached him with another man and demanded his car keys.
Fields also asked for money. Victims of subsequent crimes all
saw Fields driving Gessendaner’s Trans Am.

  These included Gwendolyn Barnett and Cynthia Smith,
both prostitutes. On the morning of October 5, Fields and a
17-year-old friend, William Blackwell, who had a gun,
ordered the two women into the Trans Am. Fields drove to an
                       FIELDS v. BROWN                  11951
alley near his residence, took the gun from Blackwell, and
directed Barnett and Smith into the house and to the upstairs
bedroom. Fields ordered Barnett to remove her clothes and
took $50 hidden in her stockings. He inspected her for vene-
real disease and told her to do whatever Blackwell wanted;
Blackwell raped her. Meanwhile, Fields took Smith into
another room, compelled her to disrobe, and took about $100
from her. The group then assembled in the same room and
smoked marijuana. Fields told Barnett to have oral sex with
Smith, which she did, then ordered her to perform anal sex,
which she refused. For this, Fields struck Cynthia with the
gun, breaking her jaw as well as the handle of the gun. Fields
raped Gwendolyn, while Blackwell raped Cynthia. Gwendo-
lyn passed out but when she awoke, she saw Blackwell hold-
ing a knife and heard Fields tell him, “Man, go and cut the
bitch up. You can’t just leave her laying there.” Fields told
Cynthia to clean up the blood from Gwendolyn’s injury. After
Fields ordered the women to go with him and Blackwell to
find more prostitutes to rob, and they did, he released them.
The police found Gwendolyn’s wig and blouse and Cynthia’s
identification card, as well as extensive blood stains on the
mattress where Gwendolyn had lain.

   Within a few hours Fields and Blackwell approached Col-
leen Coates, an 18-year-old student, in a restaurant parking
lot, ordered her at gunpoint into the Trans Am, and drove
back to the Fields house. Fields ordered her into his bedroom,
took about $12, and instructed Colleen to remove her clothes.
He struck her for not doing so fast enough. He directed her
to perform oral sex on him and to submit to intercourse.
Fields demanded more money; Colleen said she could with-
draw $2000 from a savings account, so she tore out a Crocker
Bank page from the telephone book, and went with Fields to
the local branch. However, they returned to the Fields resi-
dence without withdrawing the money because Fields thought
there were too many people around. Fields told Colleen he
would have to kill her because she had too many counts on
him; Colleen begged him not to. She tried to escape by throw-
11952                   FIELDS v. BROWN
ing herself backwards through a closed window in the bed-
room, but Fields pulled her back in. The next morning Fields
told Colleen he would let her go if she would buy marijuana
for him, which she did. The torn page from the telephone
book was found in the Trans Am, and the book with that page
missing was found in Fields’s residence. Fields’s mother wore
Colleen’s blouse to a preliminary hearing.

   Fields was convicted of the robbery-murder of Cobbs, with
the special circumstance of willful, deliberate, and premedi-
tated murder during the commission of a robbery; the robbery
of Gessendaner; the kidnaping for robbery and forced oral
copulation of Smith; the kidnaping for robbery and robbery of
Barnett, as well as her rape, forcible oral copulation, and
assault with a deadly weapon; and the kidnaping, robbery,
forcible oral copulation, and rape of Coates. In a separate
phase, the jury determined that Fields was sane. At the pen-
alty phase, the parties stipulated that all evidence heard in the
guilt and sanity phases would carry forward and that Fields
had been convicted in 1976 of the voluntary manslaughter of
Albert Allen. The jury fixed the punishment at death under
the 1977 California death penalty law. After independently
reviewing the record, the trial court denied Fields’s motion for
new trial and for modification of the verdict.

   The California Supreme Court affirmed Fields’s conviction
and sentence on December 29, 1983. 35 Cal. 3d at 336. Fields
filed a petition for habeas corpus in the state supreme court
claiming ineffective assistance of his trial counsel, Carl Jones,
which was denied after appointment of a referee who con-
ducted an evidentiary hearing. In re Fields, 51 Cal. 3d 1063
(1991).

   Fields brought his first federal habeas corpus petition on
May 25, 1993. The district court stayed proceedings to allow
an opportunity to pursue unexhausted claims in state court.
Fields filed a second petition for collateral review in the Cali-
fornia Supreme Court, which was denied on October 14,
                            FIELDS v. BROWN                          11953
1994, in part on the merits and in part on the procedural
ground of untimeliness. He filed a second amended habeas
petition in district court on March 31, 1995, raising a number
of claims which the district court held were procedurally
barred. We reversed, Fields v. Calderon (Fields I), 125 F.3d
757, 759 (9th Cir. 1997), cert. denied, 523 U.S. 1132 (1998),
and the parties filed cross-motions for summary judgment on
all claims. The district court upheld the conviction, but
ordered that the sentence be vacated and that Fields be sen-
tenced to life in prison without the possibility of parole unless
a new penalty trial were held within 60 days.

   Fields and the state both appealed. As Fields’s petition was
filed before April 24, 1996, the effective date of the Antiterro-
rism and Effective Death Penalty Act of 1996 (AEDPA),
AEDPA does not apply to the merits of the appeal.2 The panel
affirmed on all guilt phase claims except for a claim of juror
bias (and the related claim of ineffective assistance of coun-
sel), on which it remanded for an evidentiary hearing. Fields
v. Woodford (Fields II), 309 F.3d 1095, 1106 (9th Cir.),
amended by 315 F.3d 1062 (9th Cir. 2002). Following a hear-
ing, the district court found that Juror Hilliard was not dishon-
est during voir dire, that he was not actually biased, and that
application of the implied bias doctrine in the absence of dis-
honesty would be a new rule barred by Teague v. Lane, 489
U.S. 288 (1989). It also found that the Hilliards had no discus-
sions during trial about the trial that affected juror Hilliard’s
ability to be fair and impartial.

  Fields renewed appeal on these issues. The panel affirmed
denial of the writ on his claim of juror impartiality. Fields v.
Woodford (Fields III), 431 F.3d 1186 (9th Cir. 2005). Having
  2
    AEDPA does govern whether a petitioner may appeal after AEDPA’s
effective date. Slack v. McDaniel, 529 U.S. 473 (2000). Accordingly, we
treated Fields’s notice of appeal as a request for a Certificate of Appeala-
bility, and found that he made the requisite showing on each of the issues
raised. Fields II, 309 F.2d at 1101.
11954                       FIELDS v. BROWN
reserved sentencing issues until the conviction was settled, the
panel concluded that Fields had failed to show prejudicial
constitutional error and so reversed this part of the judgment.
We granted rehearing en banc.3 Fields v. Woodford, 465 F.3d
397 (9th Cir. 2006).

                                    II

                                    A

   When responding on voir dire to one of the trial court’s
posted questions4 — whether the prospective juror had ever
been a crime victim or witness, arrested or charged with a
crime, or involved in criminal charges or litigation — Floyd
Hilliard stated that his “wife was assaulted and beaten,
robbed, two years ago Christmas” in Los Angeles. The judge
observed that some of the charges involved in the Fields case
were robberies and asked whether Hilliard thought “it is going
to make it difficult for you to be a fair, impartial juror in the
case now pending before this court as a result of the experi-
ence your wife went through?” Hilliard replied: “I doubt it. I
think I’d base it strictly on the charges and the evidence that’s
presented.” When the judge asked: “And you would accept
  3
     Amicus briefs in support of Fields’s petition have been filed by the
California Attorneys for Criminal Justice and the California Council of
Churches. An amicus brief supporting the state’s petition was filed by
Wallbuilders, Inc.
   4
     The posted questions were written and included: (1) the prospective
juror’s business or occupation; (2) the prospective juror’s spouse’s busi-
ness or occupation; (3) the ages of the prospective juror’s children and
their occupations or where they attended school; (4) the general area
where the prospective juror lived; (5) the prospective juror’s previous jury
experience; (6) whether the prospective juror had ever been a crime victim
or witness, arrested or charged with a crime, or involved in criminal
charges or litigation; (7) whether the prospective juror had any legal or
law enforcement background, training, or experience; (8) whether the pro-
spective juror had any friends or relatives who were in law or law enforce-
ment; and (9) whether the prospective juror knew of any reason that he or
she could not serve as a fair and impartial juror.
                        FIELDS v. BROWN                    11955
and follow the law given to you by the court and apply it, to
the best of your ability, to the facts as you determine them to
be?,” Hilliard responded “Definitely.” Counsel asked no ques-
tions and Hilliard was empaneled without challenge.

   The present dispute centers around a declaration from
Diane Hilliard, Floyd Hilliard’s wife, that Fields obtained in
1993. It indicated that she was confronted at gunpoint by a
young African-American male in his early twenties, bound,
blindfolded, driven to a secluded area, beaten, raped, and
robbed. The attacker told Hilliard’s wife that he knew where
she lived and would be back to “finish you off.” He was never
apprehended. These events were traumatic and had a radical
effect on the Hilliards’ lives; they changed the locks on their
house and Hilliard stood guard with a gun for several weeks.
Diane Hilliard’s declaration also indicated that during trial she
began to suspect that Fields might be the person who accosted
her. She asked her husband if she could go to the courtroom,
but he said no; Mrs. Hilliard thought he was afraid that if they
knew about her case, Fields would get off. Juror Hilliard’s
1995 declaration, which he reaffirmed in 1999, averred that
he never confused the events that occurred to his wife with
the facts presented in the Fields case, he did not urge other
jurors to follow any course of action because of his wife’s
experience, and he was one of the jurors who initially
defended Fields in deliberations. Another juror’s 1995 decla-
ration stated that Hilliard often talked about his wife, but did
not say what about; a second juror declared that he was aware
that Hilliard’s wife had been raped.

   The panel was reluctant to resolve Fields’s claim of juror
bias on this record, and therefore remanded for an evidentiary
hearing. Fields II, 309 F.3d at 1105-06. At the subsequent evi-
dentiary hearing, the district court received testimony taken in
March 2003 by videotape of Floyd Hilliard, Diane Hilliard,
and the two other jurors whose 1993 declarations pertained to
Hilliard. The district court found Hilliard credible. In testi-
mony the court credited, Hilliard explained that during voir
11956                   FIELDS v. BROWN
dire he volunteered that his wife had been assaulted and
beaten, intending for people in the courtroom to understand
that she had been sexually abused without his having to be
explicit about the details. He noted that twenty-five years ago
people were not as free and open in talking about sexual
assaults as they are today. He did not intend to hide the fact
that his wife had been sexually assaulted and if anyone had
asked for specifics, Hilliard would have told them. He was
mildly surprised when no one sought to strike him, and it
would have been fine with him if the judge and attorneys did
not want him on the jury. However, Hilliard was prepared to
do his duty and serve if selected. If asked, Hilliard would also
have said with respect to the charges involving sexual assault
that he could be fair and impartial and that he doubted that the
attack on his wife would have influenced him. He said he
“doubt[ed]” he would have difficulty being fair and impartial
only “because you can never be sure what’s in the back of
your mind.” Hilliard stated that he told the truth when he told
the judge that he would base his decision strictly on the evi-
dence presented. Hilliard, who like Fields is African-
American, testified that he did his best to be a fair juror, giv-
ing Fields the benefit of the doubt when others were against
him; he did not think that the nature of his wife’s case, the
fact that no arrest had been made, and that her attacker (like
Fields) was a young African-American male had any impact
on him. He did not confuse Fields with his wife’s attacker and
did not mention the crimes against his wife to other jurors.
When Mrs. Hilliard asked her husband about the case, he
responded that he was not at liberty to discuss it. Hilliard did
not tell his wife about the crimes charged, though he might
have told her what Fields’s race was afterwards. When Mrs.
Hilliard told him she thought Fields might be the man who
assaulted her, he told her he doubted it and thought she was
a little paranoid. Hilliard testified that it never crossed his
mind that Fields was the person who assaulted his wife. He
also testified that Mrs. Hilliard’s 1993 assumption that he was
afraid Fields would get off was incorrect. He refused Diane’s
                            FIELDS v. BROWN                          11957
requests to come to the trial because he did not want her to
compromise him as a juror and was concerned that she would
be traumatized by the testimony, which would affect their
home life.

   Diane Hilliard testified that she knew little about Fields’s
case because her husband did not discuss it. She knew only
that the case involved a young African-American man who
had abducted and shot someone; she did not know if the case
involved rape charges or if Fields was in his twenties. Diane
did want to go to court to see if Fields was the man who had
accosted her, but her husband refused to let her go. This did
not upset her. She said her 1993 declaration (prepared by
Fields’s investigator) was untrue when it stated that she
believed her husband was afraid that if they knew about her
case, Fields would get off. Hilliard told her he advised the
court about her case during jury selection.

  Juror Henry testified that Hilliard talked about his wife
being the first black woman fire fighter, but nothing else.
Juror Warner testified that he became aware that Hilliard’s
wife had been robbed, beaten, and raped during voir dire, but
otherwise Hilliard didn’t talk about it.

   Considering the entire record, including the 1993 and 1995
declarations, the district court found that juror Hilliard did not
intend to mislead the trial court when he stated that his wife
was “assaulted and beaten, robbed, two years ago Christmas.”
The court also found that Hilliard and his wife did not have
any discussions during the trial about its subject matter that
affected Hilliard’s ability to be fair and impartial.

                                    B

  Fields’s claim of juror bias puts three theories on the table:
so-called McDonough-style bias,5 which turns on the truthful-
  5
   McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548 (1984)
(plurality) (holding that to get a new trial based on a juror’s responses in
11958                       FIELDS v. BROWN
ness of a juror’s responses on voir dire; actual bias, which
stems from a pre-set disposition not to decide an issue impar-
tially; and implied (or presumptive) bias, which may exist in
exceptional circumstances where, for example, a prospective
juror has a relationship to the crime itself or to someone
involved in a trial, or has repeatedly lied about a material fact
to get on the jury. In short, Fields posits that Hilliard’s failure
to disclose his wife’s rape and kidnaping, and to reveal his
misgivings about serving as a juror, was untruthful. Actual
bias can be inferred from this, together with the fact that the
evidence at trial triggered memories of the attack on his wife
and the fact that Hiliard talked with her about her suspicions
during the trial. And Hilliard was impliedly biased as his
wife’s similar experience created the potential for his own
substantial emotional involvement adversely affecting impar-
tiality. We discuss each in turn.

   [1] The Sixth Amendment guarantees a criminal defendant
a fair trial. “One touchstone of a fair trial is an impartial trier
of fact — ‘a jury capable and willing to decide the case solely
on the evidence before it.’ ” McDonough, 464 U.S. at 554
(quoting Smith v. Phillips, 455 U.S. 209, 217 (1982)). As the
Supreme Court recognized in McDonough, “[v]oir dire exam-
ination serves to protect that right by exposing possible
biases, both known and unknown, on the part of potential
jurors.” Id. at 554.

   [2] McDonough was a personal injury action in which a
prospective juror failed to respond affirmatively to a question
on voir dire seeking to elicit information about previous inju-
ries to members of the juror’s immediate family that resulted
in disability or prolonged pain. In fact, the juror’s son had
broken his leg as a result of an exploding tire, but the juror

voir dire, a party must demonstrate that the juror failed to answer honestly
and that a correct response would have provided a basis for a challenge
for cause).
                        FIELDS v. BROWN                    11959
evidently did not believe this injury was relevant to the
inquiry. After judgment for McDonough, Greenwood sought
a new trial on the basis of juror bias. The Court observed:

    To invalidate the result of a three-week trial because
    of a juror’s mistaken, though honest response to a
    question, is to insist on something closer to perfec-
    tion than our judicial system can be expected to give.
    A trial represents an important investment of private
    and social resources, and it ill serves the important
    end of finality to wipe the slate clean simply to rec-
    reate the peremptory challenge process because
    counsel lacked an item of information which objec-
    tively he should have obtained from a juror on voir
    dire examination.

Id. at 555. Accordingly, the Court held that “to obtain a new
trial in such a situation, 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.” Id. at 556.

   [3] After careful consideration of the entire record, the dis-
trict court found that Hilliard did not respond dishonestly on
voir dire and did not intend to mislead the trial court, or hide
the facts of the attack on his wife, by using the word “assault”
instead of “rape” and “kidnap” to describe what happened.
Whether a juror is dishonest is a question of fact, Dyer v. Cal-
deron, 151 F.3d 970, 973 (9th Cir. 1998) (en banc), and we
are not firmly convinced that the district court’s findings are
wrong. See Riley v. Payne, 352 F.3d 1313, 1317 (9th Cir.
2003) (noting that a district court’s factual findings are
reviewed for clear error). Hilliard testified that he thought
everyone would understand that using “assault” in the context
of a beating and robbery of his wife would encompass a sex-
ual assault. To the extent that he may have been mistaken in
assuming this, it was an honest mistake for a layperson to
make. See Dennis v. Mitchell, 354 F.3d 511, 521 (6th Cir.
11960                   FIELDS v. BROWN
2003) (holding that juror’s misunderstanding of a legal term
did not connote dishonesty); McDonough, 464 U.S. at 555
(observing that “jurors are not necessarily experts in English
usage” and “may be uncertain as to the meaning of terms
which are relatively easily understood by lawyers and judg-
es”); see also Sanders v. Lamarque, 357 F.3d 943, 947-50
(9th Cir. 2004) (holding that a juror was not dishonest in fail-
ing to disclose that twenty-five years previously she had lived
in an area with gang activity); Dyer, 151 F.3d at 973 (observ-
ing that it follows from McDonough that “an honest yet mis-
taken 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”). Hilliard did not fail to volunteer
details for any reason that implicated impartiality; he would
have furnished them, if asked. But he wasn’t asked, and in
these circumstances we heed McDonough’s admonition not to
invalidate the result of a trial.

   [4] Likewise, we see no basis upon which to invalidate
Fields’s conviction on account of actual bias. We have
defined actual bias as, in essence, “ ‘bias in fact’ — the exis-
tence of a state of mind that leads to an inference that the per-
son will not act with entire impartiality.” United States v.
Gonzalez, 214 F.3d 1109, 1112 (9th Cir. 2000) (quoting
United States v. Torres, 128 F.3d 38, 43 (2d Cir. 1997) (inter-
nal quotation marks omitted). Actual bias is typically found
when a prospective juror states that he can not be impartial,
or expresses a view adverse to one party’s position and
responds equivocally as to whether he could be fair and
impartial despite that view. The determination of whether a
juror is actually biased is a question of fact, Dyer, 151 F.3d
at 973, that we review for “manifest error” or abuse of discre-
tion, Gonzalez, 214 F.3d at 1112. We are satisfied that there
was no manifest error in the district court’s finding that Hil-
liard was not actually biased. He put aside what happened to
his wife and did not confuse those events with what he had
to decide about Fields. He truthfully represented that he was
                               FIELDS v. BROWN                           11961
impartial. He did not lie to conceal bias. While his wife spec-
ulated that Fields might be the person who accosted her, Hil-
liard himself did not. And the couple had no discussions
during the trial about its subject matter because Hilliard
understood that he was not at liberty to do so.

   [5] This leaves Fields’s argument that Hilliard was, never-
theless, impliedly or presumptively biased. As the panel rec-
ognized in remanding for development of a factual record,
this is the most serious of Fields’s challenges. The similarity
of Diane Hilliard’s experience to the charges against Fields
clearly implicates our law on implied bias. Although the
Supreme Court has not explicitly adopted (or rejected) the
doctrine of implied bias, both concurring opinions in McDo-
nough seem to embrace it, see McDonough, 464 U.S. at 556-
57 (Blackmun, Stevens, and O’Connor, JJ., concurring);6 id.
at 558 (Brennan and Marshall, JJ., concurring in the judgment),7
  6
  Justice Blackmun’s concurrence for Justice Stevens and Justice
O’Connor agrees with the Court that
      the proper inquiry in this case is whether the plaintiffs had the
      benefit of an impartial trier of fact. I also agree that, in most
      cases, the honesty or dishonesty of a juror’s response is the best
      initial indicator of whether the juror in fact was impartial. I there-
      fore join the Court’s opinion, but I write separately to state that
      I understand the Court’s holding not to foreclose the normal ave-
      nue of relief available to a party who is asserting that he did not
      have the benefit of an impartial jury. Thus, regardless of whether
      a juror’s answer is honest or dishonest, it remains within a trial
      court’s option, in determining whether a jury was biased, to order
      a post-trial hearing at which the movant has the opportunity to
      demonstrate actual bias or, in exceptional circumstances, that the
      facts are such that bias is to be inferred.
464 U.S. at 556-57 (Blackmun, J., concurring). Justice Blackmun cited to
Justice O’Connor’s concurring opinion in Smith v. Phillips, 455 U.S. 209
(1982), where she suggested that bias may be presumed when, for exam-
ple, there is “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.” Id. at 222
(O’Connor, J., concurring).
   7
     Justice Brennan’s concurrence, in which Justice Marshall joined,
agreed with the Court that less-than-complete information during voir dire
11962                      FIELDS v. BROWN
and our court has inferred or presumed bias on rare occasions.
See, e.g., United States v. Allsup, 566 F.2d 68, 71-72 (9th Cir.
1977); United States v. Eubanks, 591 F.2d 513, 517 (9th Cir.
1979); Dyer, 151 F.3d at 979; Gonzalez, 214 F.3d at 1112-14.

   In Allsup, two jurors in a bank robbery trial were employ-
ees of a different branch of the bank that was robbed. 566
F.2d at 71. On direct appeal, we held that their relationship to
the subject of the trial was too close for them to be impartial,
therefore the trial court erred by failing to excuse the jurors
for cause. Id. at 71-72.

   Eubanks was a heroin conspiracy case. 591 F.2d at 516. We
presumed bias on direct appeal from denial of a motion for
new trial because the juror failed to disclose that two of his
children were in prison for heroin-related crimes. Id. at 517.
On a juror qualification form, the juror had indicated that he
was married but had no children, and the juror did not respond
to a question by the judge on voir dire whether “you or mem-
bers of your immediate families [have] ever been personally
interested in the defense of a criminal case or a witness for the
defense in a criminal case[.]” Id. at 516. Had he answered
truthfully, the trial court would have excused him. Id. at 517.
In these circumstances, we concluded that the juror’s sons’
involvement with heroin barred the inference that he served
impartially. Id.

does not by itself require a new trial, and would hold that “to be awarded
a new trial, a litigant should be required to demonstrate that the juror
incorrectly responded to a material question on voir dire, and that, under
the facts and circumstances surrounding the particular case, the juror was
biased against the moving litigant.” McDonough, 464 U.S. at 557-58
(Brennan, J., concurring in the judgment). He would also have recognized
that bias may be actual or implied (conclusively presumed as a matter of
law), and accordingly, disagreed with the Court “that a new trial is not
warranted whenever a prospective juror provides an honest answer to the
question posed.” Id. at 558-59.
                         FIELDS v. BROWN                    11963
   In Tinsley v. Borg, 895 F.2d 520 (9th Cir. 1990), in con-
trast, a state prisoner who was convicted of rape contended in
his 28 U.S.C. § 2254 petition that he was denied a fair trial
because one juror was biased. Id. at 523. The juror stated dur-
ing voir dire that she was a psychiatric social worker who was
trained to deal with rape victims, but notwithstanding the
nature of the charges involved in Tinsley’s case, would be
able to be a fair juror. Id. at 524. She also said that she did
not recall counseling any rape victims; however, it turned out
that she had testified once on behalf of a rape victim, an expe-
rience she found anxiety provoking. Id. At a hearing on Tins-
ley’s motion for a new trial, the juror testified that she had
been fair as a juror and had no recollection of thinking about
the prior counseling episode during deliberations. Id. We
acknowledged that bias may be implied when the case pres-
ents a relationship in which the “ ‘potential for substantial
emotional involvement, adversely affecting impartiality,’ ” is
inherent, id. at 527 (quoting Allsup, 566 F.2d at 71), or as the
Fourth Circuit had put it, in “ ‘those extreme situations where
the relationship between a prospective juror and some aspect
of the litigation is such that it is highly unlikely that the aver-
age person could remain impartial in his deliberations under
the circumstances.’ ” Id. (quoting Person v. Miller, 854 F.2d
656, 664 (4th Cir. 1988)). However, we concluded that the
circumstances did not warrant a presumption of bias as nei-
ther the juror nor a close relative had been a rape victim or
rapist, there was no personal connection between the juror and
the defendant or victim, and the juror had no prejudicial infor-
mation about the defendant himself. Id. at 529.

   In Dyer, the juror on voir dire in a murder prosecution
answered “no” to queries about whether she or any of her rel-
atives had ever been the victim of any type of crime, and
whether she or any of her relatives had ever been accused of
any offense other than traffic cases. 151 F.3d at 972. The truth
was that the juror’s brother had been shot and killed six years
earlier, and her husband was in jail. Id. at 972-73. We con-
cluded that the juror plainly lied, and that her lies gave rise
11964                   FIELDS v. BROWN
to an inference that she chose to conceal important facts in
order to serve as a juror and pass judgment on Dyer’s sen-
tence. Id. at 982; see also Green v. White, 232 F.3d 671, 676
(9th Cir. 2000) (presuming bias when the jury foreperson in
a murder trial lied about his own prior felony conviction on
a written jury questionnaire and in voir dire because the “pat-
tern of lies, inappropriate behavior, and attempts to cover up
his behavior introduced ‘destructive uncertainties’ into the
fact-finding process” (quoting Dyer, 151 F.3d at 983)).

   Like Eubanks, Gonzalez was a drug conspiracy case where
prospective jurors were asked whether they or anyone close
to them had any experience with illegal drugs. 214 F.3d at
1110. A juror answered affirmatively that her ex-husband had
used and dealt cocaine, which was one of the reasons for their
divorce four years previously, but the juror responded equivo-
cally when asked three times whether she could put her per-
sonal experience aside and serve impartially. Id. at 1110-11.
We held that denial of a cause challenge on either an express
or implied bias theory required reversal given the juror’s
responses to the court’s questions and the similarity between
her experience and the defendant’s alleged conduct. Id. at
1114.

   [6] In sum, we have implied bias in those extreme situa-
tions “where the relationship between a prospective juror and
some aspect of the litigation is such that it is highly unlikely
that the average person could remain impartial in his delibera-
tions under the circumstances,” id. at 1112 (quoting Tinsley,
895 F.2d at 527) (internal quotation marks omitted), or where
repeated lies in voir dire imply that the juror concealed mate-
rial facts in order to secure a spot on the particular jury, Dyer,
151 F.3d at 982. The standard is “essentially an objective
one,” Gonzalez, 214 F.3d at 1113, under which a juror may
be presumed biased even though the juror himself believes or
states that he can be impartial. Dyer, 151 F.3d at 982. Review
is de novo, because implied bias is a mixed question of law
and fact. Gonzalez, 214 F.3d at 1112.
                            FIELDS v. BROWN                          11965
   Fields maintains that all the indicia for implied bias are
present as Hilliard and his wife went through a personal expe-
rience that is similar to the fact pattern at trial; it is unlikely
that a person in Hilliard’s circumstances — whose wife was
the victim of a recent unsolved crime by a person whom the
defendant resembles and whom the wife suspects might be the
one who attacked her — could be impartial; the incident
involving Diane Hilliard and Hilliard’s subsequent conversa-
tions with her during the trial present the potential for sub-
stantial emotional involvement adversely affecting his
impartiality; and Hilliard was not honest during the voir dire
process regarding the attack on his wife. Specifically, Fields
contends that the same kind of emotional involvement exists
in this case as in Eubanks and Dyer because Hilliard’s wife
had been affected by crimes similar to the ones of which he
was accused; and that, as in Allsup, Hilliard also had a reason-
able fear of violence as a result of crimes similar to the ones
of which Fields was accused.

   The state disagrees that the relationship is of the sort that
we have previously found so extreme as to presume bias,
which leads it also to invoke the Teague rule against retroac-
tive application by a federal court of a new rule of constitu-
tional law.8 We must decide whether this is so before reaching
the merits of Fields’s claim. Caspari v. Bohlen, 510 U.S. 383,
389 (1994) (instructing that if a state argues that the district
court granted a habeas petition on the basis of a new rule of
constitutional law that is Teague-barred, a court must address
the Teague issue first); Leavitt v. Arave, 383 F.3d 809, 816
(9th Cir. 2004) (per curiam) (same).

   In the state’s view, a reasonable interpretation of precedent
from when Fields’s conviction became final9 would not allow
   8
     Teague v. Lane, 489 U.S. 288, 310 (1989) (holding, with exceptions,
that a decision announcing a constitutional rule of criminal procedure that
was not dictated by precedent existing at the time the defendant’s convic-
tion became final may not be applied on collateral review).
   9
     This date, for Teague purposes, is October 9, 1984, the date the United
States Supreme Court denied certiorari on Fields’s direct appeal, Fields v.
11966                       FIELDS v. BROWN
a presumption of bias in the absence of a finding of juror dis-
honesty. The state submits that all but one case in the universe
of implied-bias cases existing as of then involved dishonesty,
see McDonough, 464 U.S. at 556; Eubanks, 591 F.2d at 516,
and that the one case that did not, Allsup, 566 F.2d at 71,
involved two jurors who were related by employment to the
victim — a relationship which falls squarely within long-
accepted standards for disqualification.

   Fields counters that Hilliard’s bias may be implied on
account of more than just the similarity of the crimes against
his wife. For example, extraneous matters such as the conver-
sations that Hilliard had with his wife during trial are not
Teague-barred because extrinsic information has long impli-
cated the constitutional right to a fair trial. See, e.g., Remmer
v. United States, 347 U.S. 227, 229 (1954). He also argues
that implied bias based on deficient responses to voir dire
questions has been firmly established at least since McDo-
nough came down on January 18, 1984. In addition, Fields
points out that the concurring opinions in McDonough, and
our opinion in Allsup, embraced a standard for implied bias
that does not depend solely on dishonesty. See McDonough,
464 U.S. at 556-57 (Blackmun, Stevens and O’Connor, JJ.,
concurring); id. at 558 (Brennan and Marshall, JJ., concurring
in the judgment); Allsup, 566 F.2d at 71-72 (finding implied
bias even though juror disclosed she worked at a branch of the
bank that was robbed).

  We agree with Fields that the implied bias doctrine existed
before 1984; we so held in Dyer. 151 F.3d at 984-85. But this

California, 469 U.S. 892 (1984). See Snook v. Wood, 89 F.3d 605, 612
(9th Cir. 1996) (explaining when a conviction becomes final for Teague
purposes). However, Fields assumes — and the state does not dispute —
that the relevant date is October 14, 1994, when the California Supreme
Court denied his exhaustion petition that raised the issue of juror bias for
the first time. There is no need for us to decide which is correct because
the result is the same either way.
                        FIELDS v. BROWN                    11967
does not answer the more discrete issue raised by the state:
whether the implied bias doctrine as it existed when Fields’s
conviction became final would have required a new trial in
the absence of dishonesty during voir dire.

   On the one hand, the Supreme Court has never held that a
juror was impliedly biased in the absence of juror dishonesty.
In Dennis v. United States, 339 U.S. 162 (1950), the court
considered the problem, but refused to find that government
employees were impliedly biased and thus automatically dis-
qualified from serving on a jury where the government is a
party. Id. at 172. Moreover, Justice O’Connor expressed the
view that implied bias should only be presumed in “extreme”
or “extraordinary” cases. Phillips, 455 U.S. at 222-23 & n.*
(O’Connor, J., concurring); see also Tinsley, 895 F.2d at 527
(quoting same). Examples she gave of what might count as an
“extreme” or “extraordinary” case were “a revelation that the
juror is an actual employee of the prosecuting agency, 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.” Phillips, 455
U.S. at 222 (O’Connor, J., concurring). McDonough, of
course, held that a party must demonstrate that a juror failed
honestly to answer a voir dire question that is material to
impartiality before a trial result could be invalidated. 464 U.S.
at 556. However, the concurring opinions indicated that they
did not understand the opinion to foreclose implied bias in the
absence of juror dishonesty on voir dire. Id. at 556-57 (Black-
mun, Stevens, and O’Connor, JJ., concurring); id. at 558-59
(Brennan and Marshall, JJ., concurring in the judgment). In
light of these cases we have previously observed that it is an
unresolved question whether dishonesty is a necessary predi-
cate to a finding of juror bias. See Dyer, 151 F.3d at 979 n.12
(noting it was unnecessary to decide the issue because the
juror there had lied during voir dire); see also Fields II, 309
F.3d at 1105 (“Beyond what these cases indicate, it is an open
question whether dishonesty is required before bias may be
found.”).
11968                    FIELDS v. BROWN
   On the other hand, we decided in Allsup that bias could be
implied in the absence of juror dishonesty. The prospective
jurors who worked for the victim bank had honestly disclosed
their employment and stated that they could try the case
fairly, but we nevertheless presumed bias on account of the
fact that they worked for the bank that had been robbed and
would have a “reasonable apprehension of violence” from
bank robbers. 566 F.2d at 71-72. Although the nature of the
relationship was different from Hilliard’s in that the jurors in
Allsup were directly interested in the victim, still it is difficult
to conclude in light of Allsup and Justice O’Connor’s concur-
rence in Phillips that presuming bias despite an honest disclo-
sure of a potentially disqualifying relationship would have
been a new rule of constitutional law in 1984.

   The state also argues for the narrower proposition that no
precedent at the time dictated that an honest juror is impliedly
biased simply by virtue of his wife’s victim status. While we
agree that this is so, we do not require the existence of a case
for Teague purposes “involving identical facts, circumstances,
and legal issues.” Keating v. Hood, 191 F.3d 1053, 1061 n.11
(9th Cir. 1999), overruled on other grounds by Payton v.
Woodford, 346 F.3d 1204, 1217 n.18 (9th Cir. 2003) (en
banc).

   [7] Teague aside, it is well accepted that bias may be pre-
sumed only in “extreme” or “extraordinary” cases. We said in
Tinsley, and reiterate now, that “[p]rudence dictates that
courts answering this question should hesitate before formu-
lating categories of relationships which bar jurors from serv-
ing in certain types of trials.” 895 F.2d at 527.

   [8] “Instead of formal categorization, the Supreme Court
has emphasized the existence of safeguards against actual
bias.” Id. at 527-28. The prime safeguard is voir dire. “In
most situations, voir dire, ‘the method we have relied on since
the beginning,’ should suffice to identify juror bias.” Id. at
528 (quoting Patton v. Yount, 467 U.S. 1025, 1038 (1984)).
                             FIELDS v. BROWN                          11969
This is because truthful disclosure of information during voir
dire sets up a challenge for cause (or in less clear-cut cases,
a peremptory challenge) that can be exercised before
resources are devoted to trying the case to verdict. Cause
challenges lie for implied (or presumed) bias as well as for
actual bias. See Gonzalez, 214 F.3d at 1111. Honesty is the
heart of the jury-selection process in an adversarial system;
indeed, “voir dire” means “to speak the truth.” The whole
point of the voir dire process is to elicit information from the
venire that may shed light on bias, prejudice, interest in the
outcome, competence, and the like so that counsel and the
parties may exercise their judgment about whom to seat and
whom to challenge. As the Supreme Court elaborated in
McDonough:

     One touchstone of a fair trial is an impartial trier of
     fact — “a jury capable and willing to decide the case
     solely on the evidence before it.” Voir dire examina-
     tion serves to protect that right by exposing possible
     biases, both known and unknown, on the part of
     potential jurors. Demonstrated bias in the responses
     to questions on voir dire may result in a juror being
     excused for cause; hints of bias not sufficient to war-
     rant challenge for cause may assist parties in exercis-
     ing their peremptory challenges. The necessity of
     truthful answers by prospective jurors if this process
     is to serve its purpose is obvious.

464 U.S. at 554 (citation omitted) (quoting Phillips, 455 U.S.
at 217).10 Accordingly, when the issue of bias arises after trial
   10
      Judge Berzon’s assertion that “dishonesty during voir dire has little to
do in general with the concerns underlying the implied bias doctrine,” Ber-
zon dissenting op. at 12041, is beguiling because of course it is true that
those concerns have nothing to do with honesty or dishonesty in voir dire;
concerns animating the implied bias doctrine are values in and of them-
selves. But it is not true that voir dire has nothing to do with protecting
those core values. That’s the whole point of voir dire: to elicit, through
11970                        FIELDS v. BROWN
(as it did in McDonough and Tinsley) or, as here, on collateral
review of a conviction in state court, dishonesty in voir dire
is the critical factor. As McDonough explains, “it ill serves the
important end of finality to wipe the slate clean” when the
potentially disqualifying relationship is disclosed on voir dire
examination. 464 U.S. at 555.

   [9] Hilliard honestly disclosed that his wife had been a vic-
tim of crimes that were quite similar to some of the crimes of
which Fields was accused. Although we found implied bias in
Eubanks based on similarities between the experience of a
juror’s relatives and the events giving rise to the trial, the
juror had not been honest in voir dire about his sons’ involve-
ment with heroin. Cf. Green v. White, 232 F.3d 671, 676-78
(9th Cir. 2000) (presuming bias biased on pattern of lies);
Dyer, 151 F.3d at 983 (presuming bias from juror’s lies);
Gonzalez, 214 F.3d at 1114 (holding that cause challenge
should have been granted when juror equivocated on voir dire
about ability to set aside emotional experience).

   The implied bias that we found in Allsup was based on the
jurors’ direct relationship with the victim and their own vul-
nerability to the same type of conduct for which the accused
bank robbers were on trial. Hilliard had no personal connec-
tion of this sort. He was not related to a participant, victim,
or witness. The similarity of experiences was on account of
his wife’s experience, not his own. Although we have recog-
nized that bias may be implied where close relatives of a juror
“have been personally involved in a situation involving a sim-
ilar fact pattern,” Tinsley, 895 F.2d at 528; Eubanks, 591 F.2d

careful inquiry, indicators of bias — actual, implied, or merely imagined
— in order to empanel a fair and impartial jury. If a prospective juror
responds honestly, then the markers for implied, or actual bias appear. It
is then up to the parties to pursue a challenge. When facts not dishonestly
concealed come to light after the trial is over, and there has been a full evi-
dentiary inquiry into whether the juror was really biased, there is no longer
any need to “imply” anything. We know the actual facts.
                         FIELDS v. BROWN                    11971
at 517; Dyer, 151 F.3d at 982, we have never done so when
the juror was honest on voir dire.

   We decline to do so here. Hilliard’s honest disclosure on
voir dire about what happened to his wife was more than suf-
ficient for follow-up that would have fleshed out whether the
relationship between his wife’s experience and some of the
crimes charged was such that “it is highly unlikely that the
average person could remain impartial in his deliberations
. . . .” Tinsley, 895 F.2d a 527 (quoting Person, 854 F.2d at
664). Fields had a remedy at that point — a challenge for
cause, which lies for implied as well as actual bias — that
would have resulted in Hilliard’s being excused, if well taken,
or in a new trial (as in Allsup) if improperly denied.

   To the extent that events or information bearing on Hil-
liard’s honesty in voir dire or impartiality as a juror came
after he was empaneled, the evidentiary hearing held by the
district court afforded Fields an opportunity to show that Hil-
liard was not a fair and impartial juror. He failed to do so. The
opportunity to show actual bias is a sufficient remedy and “ ‘a
guarantee of a defendant’s right to an impartial jury.’ ” Phil-
lips, 455 U.S. at 216 (quoting Dennis, 339 U.S. at 171-72);
see also id. at 215 (observing that “[t]his 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”); Williams v. Taylor, 529 U.S. 420, 442-44 (2000)
(quoting Phillips on the point and reiterating that the defen-
dant may establish at an evidentiary hearing that a prospective
juror who arguably failed to tell the truth on voir dire was not
impartial).

   [10] Knowing what we now know as a result of the eviden-
tiary hearing, we see no basis for implying bias as a matter of
law solely because Hilliard was the spouse of a rape victim.
As a practical matter, many prospective jurors have close
family members or friends who have suffered similar encoun-
ters. It is the role of voir dire to ferret out such relationships,
11972                       FIELDS v. BROWN
and to develop the extent to which the juror’s ability to be
impartial in the particular case is actually, or presumptively,
affected. For those revelations that occur during voir dire, the
remedy is a cause challenge; for those that occur during trial,
the remedy is a contemporaneous proceeding during which
the trial court can preserve the integrity of the jury; for those
that occur after trial, the remedy is a post-trial hearing. Here,
the evidentiary hearing showed no actual effect of his wife’s
experience, or of their conversations, on Hilliard’s ability to
be fair and impartial.11 Being the spouse of a rape victim is
not, in and of itself, such an “extreme” or “extraordinary” sit-
uation that it should automatically disqualify one from serving
on a jury in a case that involves rape.12 It cannot be said that
the average person in Hilliard’s position would be highly
unlikely to remain impartial whether he acknowledged it or
  11
      We note that this determination may depend upon testimony of the
juror in question. See, e.g., Phillips, 455 U.S. at 217 (rejecting argument
that a court cannot possibly ascertain the impartiality of a juror by relying
solely upon the juror’s testimony but must instead impute bias to jurors in
the questioned juror’s position); Dennis, 339 U.S. at 171 (observing that
“[o]ne may not know or altogether understand the imponderables which
cause one to think what he thinks, but surely one who is trying as an hon-
est man to live up to the sanctity of the oath is well qualified to say
whether he has an unbiased mind in a certain matter”).
   12
      See United States v. Powell, 226 F.3d 1181, 1189 (10th Cir. 2000)
(holding that juror whose daughter had been raped was not impliedly
biased in trial concerning kidnaping for sexual gratification and assault);
cf. Gonzales v. Thomas, 99 F.3d 978, 989-90 (10th Cir. 1996) (declining
to hold that a rape victim can never be an impartial juror in a rape trial as
it would “insult not only all rape victims but also our entire jury system,
which is built upon the assumption that jurors will honestly try ‘to live up
to the sanctity of [their] oath’ ”) (quoting Dennis, 339 U.S. at 171). See
also Jones v. Cooper, 311 F.3d 306, 312-13 (4th Cir. 2002) (refusing to
presume bias from the fact that juror’s relatives had been arrested and
tried); United States v. Torres, 128 F.3d 38, 46 (2d Cir. 1997) (declining
to hold that bias must be implied where juror has engaged in conduct simi-
lar to that of the defendant at trial). But see Hunley v. Godinez, 975 F.2d
316, 320 (7th Cir. 1992) (holding that burglary of sequestered jurors that
occurred during their deliberations concerning a similar burglary charge
was an extreme situation justifying presumption of bias).
                              FIELDS v. BROWN                            11973
not.13 Rather, the effect of the spouse’s experience on the
juror’s impartiality depends on purely personal considerations
that can vary from case to case, including, for example, the
similarity of the spouse’s experience to the facts of the case,
the nature of the experience, its contemporaneous and contin-
uing impact, the couple’s relationship, how the individual
handles it, and so forth. Given Hilliard’s honest response on
voir dire that revealed a potentially disqualifying relationship,
but not an extreme or extraordinary one, and the results of the
evidentiary hearing which disclosed no actual bias, we see no
basis for inferring bias now as a matter of law.

                                       C

   [11] Our conclusion that Hilliard was an impartial juror
remains the same whether conversations with his wife during
trial are considered together with his voir dire responses, or
separately from them. However, the conversations occurred
after the jury was sworn and so are analytically distinct from
his responses on voir dire.14 These conversations obviously
  13
      Relying on Tinsley, Judge Berzon’s dissent says that this observation
“is quite beside the point,” and that in fact the “struggle during the trial
over whether Diane Hilliard could attend” is “critical in assessing the
implied bias issue in this case.” Berzon dissenting op. at 12036. But Tins-
ley made the inherent nature of the relationship precisely the point for pur-
poses of the implied bias doctrine — not, as the dissent would have it,
whether some kind of “struggle” actually took place while the trial was
ongoing. 895 F.2d at 527 (focusing on the relationship). Whether some
kind of “struggle” took place is an individualized, subjective inquiry
appropriate to the question of whether prejudicial ex parte communica-
tions or extrinsic information infected the partiality of the jury, but it is not
germane to whether bias inheres in a particular relationship between the
juror and the litigation such that bias must be presumed (which is an
objective inquiry). Regardless, even if a struggle during trial were some-
how “critical,” there was no struggle that juror Hilliard participated in.
The evidentiary hearing resolved that issue.
   14
      Judge Berzon’s conclusion to the contrary collapses the distinct con-
cepts of implied bias — which arises intrinsically from an “extreme” and
“extraordinary” relationship between a juror and an aspect of the litigation
11974                       FIELDS v. BROWN
could not have been disclosed or discovered during voir dire
as they took place afterwards. Nevertheless, discussions
between Hilliard and his wife could bear on Hilliard’s impar-
tiality, or they could amount to an impermissible private com-
munication between a juror and a third person that, under
Mattox v. United States, 146 U.S. 140, 150 (1892), and Rem-
mer v. United States, 347 U.S. 227, 229 (1954), would invali-
date the verdict unless the communications were deemed
harmless.

   Fields argues that the fact that Hilliard knew his wife seri-
ously entertained the notion that Fields might have been her
assailant (regardless of his own views of the matter) made it
impossible for him to exercise independent judgment. Thus,
in Fields’s view, the conversations gave rise to a presumption
of prejudice that was not rebutted. Fields also urges that Hil-
liard evinced an “excess of zeal” to stay on the jury, thereby
manifesting a lack of impartiality. However, these arguments
fail in light of the district court’s findings. The court found
Hilliard credible, which means that he did not discuss the
Fields trial with his wife beyond saying what kind of case it

— and ex parte communication with, or extrinsic influence on, a juror.
Berzon, J., dissenting op. at 12036. To do so creates a novel, hybrid cate-
gory of implied bias that goes well beyond anything heretofore recog-
nized. While Teague is not implicated by the doctrine of implied bias of
the sort noted by Justice O’Connor’s concurrence in Phillips, 455 U.S. at
222-23 & n.*, Teague may be implicated by a new concept of bias cob-
bled out of a relationship plus alleged ex parte communications. Beyond
this, Judge Berzon’s approach fails to recognize that the remedy for alle-
gations of juror partiality stemming from events such as ex parte commu-
nications and extraneous information is an evidentiary hearing at which
the defendant has the opportunity to prove actual bias. See, e.g., Remmer
v. United States, 347 U.S. 227 (1954); Phillips, 455 U.S. at 216; Dennis,
339 U.S. at 171-72; Williams, 529 U.S. at 442-44; United States v.
Madrid, 842 F.2d 1090, 1094 (9th Cir. 1988) (citing these authorities and
reiterating the point in connection with alleged ex parte contact during
deliberations). Fields had such an opportunity, but failed to show actual
bias or prejudice.
                         FIELDS v. BROWN                    11975
was, he did not buy his wife’s speculation about Fields’s
being her assailant, he did not confuse the Fields case with the
crimes against his wife, and he discussed nothing with his
wife that affected his ability to be fair and impartial.

   Also as shown by the evidentiary hearing on remand, when
Diane Hilliard asked her husband about the case, he told her
he was not at liberty to discuss it. She knew only that her hus-
band was a juror on a case involving a young, African-
American male who had abducted and shot someone. She did
not know if Fields’s case involved rape charges. The district
court found that Hilliard never confused the crimes against his
wife with those that Fields committed, and he obeyed the trial
judge’s instruction not to discuss the case until it was over.
Further, Hilliard truthfully told the judge he would decide the
case on the evidence and the law given at trial, and nothing
else, and absolutely did so. Finally, the district court found
that the discussions did not delve deeply, if at all, into the
facts of Fields’s case and that Hilliard’s discussions with his
wife did not affect his ability to be fair and impartial.

  [12] It is Hilliard’s impartiality that matters, not his wife’s.
As found by the district court, the two had no discussions dur-
ing trial about its subject matter that affected Hilliard’s ability
to be fair and impartial. Thus, the communications were
harmless.

                                III

   In a related claim, Fields alleges that his counsel was inef-
fective in failing to question Hilliard during voir dire about
the attack on his wife or about his ability to serve impartially.
To prevail under Strickland v. Washington, 466 U.S. 668
(1984), Fields must show that his “counsel’s performance was
deficient” and “that the deficient performance prejudiced the
defense.” Id. at 687. As the panel observed in Fields II, “it is
tough to imagine why [Fields’s counsel] did not pursue what
kind of assault Hilliard’s wife suffered, given that the non-
11976                   FIELDS v. BROWN
capital charges against Fields included rape.” 309 F.3d at
1108. The state hypothesizes tactical reasons why Jones
would have wanted Hilliard on the jury, but whether counsel
had a strategic reason is immaterial, for Fields was not preju-
diced. Strickland, 466 U.S. at 697 (observing that a court may
determine prejudice without first deciding deficiency). Preju-
dice exists if “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding
would have been different.” Id. at 694. Here there is no such
reasonable probability, because Hilliard was not biased. The
impartiality of the jury was not undermined by his being
seated as a juror. Replacement of one unbiased juror with
another unbiased juror should not alter the outcome.

   [13] As other claims having to do with the guilt phase have
been resolved and are not before us, and we now resolve the
juror bias issues in favor of the state, we affirm the judgment
denying habeas relief on all claims related to Fields’s convic-
tion.

                               IV

   The state cross-appeals the district court’s grant of the writ
on Fields’s claim of misconduct based on the jury’s use of
Biblical quotations and dictionary definitions in the penalty
phase. It presses four reasons for error: the claim is not timely
under Rule 9(a) of the Rules Governing Section 2254 Cases
in the United States District Courts; the claim is Teague-
barred; the district court’s finding was based on juror declara-
tions that are inadmissible under Federal Rule of Evidence
606(b); and the jury’s consideration of the Biblical passages
and dictionary definitions did not violate the Constitution or
have a substantial and injurious effect on the verdict. Fields
responds that his rights to cross-examination, confrontation,
and the assistance of counsel were violated by use of Juror
White’s notes because he had no chance to take a position on
them. He submits that there is a material difference between
a juror’s commenting on the evidence from general knowl-
                                FIELDS v. BROWN                       11977
edge that other jurors can easily rebut, and a jury’s consider-
ing written notes of religious mandates and appeals to a
higher authority. And he contends that the Biblical verses
were “strong medicine” that supported imposition of the death
penalty when the jurors were split in favor of life without the
possibility of parole, thus were prejudicial.

   The penalty phase of Fields’s trial commenced on July 16,
1979, lasted less than a day, and the jury deliberated from 2
p.m. until 4 p.m. without reaching a verdict. That evening,
Rodney White, the foreperson of the jury, checked the Bible
and other reference texts and made notes “for” and “against”
imposition of the death penalty which he brought to the delib-
erations the next day.15 White also consulted a dictionary for
  15
    The “for” side notes:
       •   “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. There-
             fore, he who resists the authority, resists the ordinance of
             God; and they that resist bring on themselves condemna-
             tion
11978                          FIELDS v. BROWN
definitions of the words “extenuation,” “vindication,” and
“mitigate,” and brought these notes to the jury room as well.16

             ‘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 the 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.”
The “against” side notes:
       •   “No real deterrent value—mostly because murderers not nor-
           mal”
       •   “Question of ‘Just’—There is no simple, ‘just,’ penalty”
       •   “Discriminatory selection”
       •   “Human fallibility—Perhaps wrong chap convicted.”
       •   “Rehabilitation”
    • “ ‘Popular’ feelings”
  16
    The notes were:
       Extenuation — to thin out — palliation, softening, whitewash,
       gloss over, varnish, loophole, make allowance for
       Vindication — justifiable, excusable, inculpable, blameless, legit-
       imate not blameworthy . . . vindicable/extenuating
       “The proper object of extenuate in its sense of making excuses
       for is a word expressing something bad in itself, as guilt, coward-
       ice, cruelty — not a neutral word such as conduct or behavior —
       circumstances [sic]
       “The meaning of excuse should not attach to extenuate, the
       word.” VA [sic] Fowler
                            FIELDS v. BROWN                          11979
The notes were shared or the information was received by at
least some jurors when deliberations resumed at 9:30 a.m. on
July 17th. By 3 p.m. that afternoon, the jury had reached a
verdict.

   Fields presented a number of juror declarations in support
of his claim of juror misconduct. Juror testimony about con-
sideration of extrinsic evidence may be considered by a
reviewing court, but juror testimony about the subjective
effect of evidence on the particular juror or about the delibera-
tive process may not. See, e.g., Sassounian v. Roe, 230 F.3d
1097, 1108-09 (9th Cir. 2000) (relying on a long line of pre-
cedent drawing this distinction). On the state’s motion, the
district court struck the declarations to the extent that the
information contained in them was inadmissible under Rule
606(b).17 However, based on what was left, the court found
that the religious material in White’s notes was actually
received by the jury, was available to it on the second day of
deliberations, was discussed by some jurors, was presented at

     Mitigate — soft, smooth, gentle, mild. abate, lessen, allay, atten-
     uate, weaken, reduce, render or cause to be less, less harsh[,]
     decrease, diminish, decrease, curtail quality, limit, narrow,
     assuage.
  17
     Rule 606(b) provides:
    Upon an inquiry into the validity of a verdict or indictment, a
    juror may not testify as to any matter or statement occurring dur-
    ing the course of the jury’s deliberations or to the effect of any-
    thing 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 connec-
    tion therewith. But a juror may testify about (1) whether extrane-
    ous 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 mis-
    take in entering the verdict onto the verdict form. A juror’s affi-
    davit or evidence of any statement by the juror may not be
    received on a matter about which the juror would be precluded
    from testifying.
11980                   FIELDS v. BROWN
an early stage of deliberations before a verdict was reached,
and directly related to a material aspect of the case because
the references indicated that the death penalty should be
imposed in any case involving murder. The district court con-
cluded that the jury’s consideration of Biblical references
offended the principle that religion may not play a role in the
sentencing process, and that it had the potential to be highly
prejudicial.

   [14] Before turning to the merits, we must first decide
whether this claim is Teague-barred. See Caspari, 510 U.S. at
389; Leavitt, 383 F.3d at 816. The state’s position is that as
of the time Fields’s sentence became final, law binding on
state courts allowed the jury to exercise “ ‘unbridled discre-
tion in determining whether the death penalty should be
imposed after it has found that the defendant is a member of
the class made eligible for that penalty [under the state stat-
ute].’ ” Tuilaepa v. California, 512 U.S. 967, 979-80 (1994)
(quoting Zant v. Stephens, 462 U.S. 862, 875 (1983)). The
state also points out that as of that date, it was established law
that a capital jury “express[es] the conscience of the commu-
nity on the ultimate question of life or death.” Witherspoon v.
Illinois, 391 U.S. 510, 519 (1968). While these propositions
are undoubtedly so, and there is no Supreme Court authority
on Biblical references in the jury room, it is also true that as
of 1984 it was well established “in capital cases that the jury
should pass upon the case free from external causes tending
to disturb the exercise of deliberate and unbiased judgment.”
Mattox v. United States, 146 U.S. 140, 149 (1892). The dis-
trict court’s ruling cannot be Teague-barred at this level of
generality.

   In addition, we have been unwilling for Teague purposes to
require a case “involving identical facts, circumstances, and
legal issues.” Keating, 191 F.3d at 1061 n.11. The Sixth
Amendment inquiry in the context of outside influence on a
jury is fact-specific. Among other things, it requires a review-
ing court to determine whether the particular materials that a
                               FIELDS v. BROWN                          11981
juror brought into the jury room are extraneous materials, or
are merely “the kind of common knowledge which most
jurors are presumed to possess.” Rodriguez v. Marshall, 125
F.3d 739, 745 (9th Cir. 1997), overruled on other grounds by
Payton v. Woodford, 299 F.3d 815, 828-29 & n.11 (9th Cir.
2002) (en banc); see also Grotemeyer v. Hickman, 393 F.3d
871, 878-79 (9th Cir. 2004) (stating that a juror’s sharing her
own experience as a physician with the jury is not extrinsic
evidence); United States v. Bagnariol, 665 F.2d 877, 888 (9th
Cir. 1981) (discounting claim of prejudice where extraneous
information was something “any reasonable juror already
knew”). We also apply a multi-factor test,18 which makes it
  18
    Factors we have identified for courts to consider in determining
whether jury exposure to facts not in evidence deprives a defendant of his
Sixth Amendment rights to confrontation, cross-examination and assis-
tance of counsel include:
       (1) whether the extrinsic material was actually received, and if so,
       how; (2) the length of time it was available to the jury; (3) the
       extent to which the jury discussed and considered it; (4) whether
       the material was introduced before a verdict was reached, and if
       so, at what point in the deliberations it was introduced; and (5)
       any other matters which may bear on the issue of . . . whether the
       introduction of extrinsic material [substantially and injuriously]
       affected the verdict.
Lawson v. Borg, 60 F.3d 608, 612 (9th Cir. 1995) (alterations in original)
(quoting Bayramoglu v. Estelle, 806 F.2d 880, 887 (9th Cir. 1986)). Judge
Berzon’s dissent truncates prong five so as to suggest that there is no
harmless error standard — and implies that the truncated version has been
our court’s test for “more than two decades.” Berzon, J., dissenting op. at
12020. In fact, the dissent’s quotation of the five-factor test is taken from
Bayramoglu, prong five of which was corrected in Lawson to take account
of Brecht v. Abramson, 507 U.S. 619 (1993). Thus, the truncated quote in
the dissent reads: “(5) any other matters which may bear on the issue . . . .”
whereas the true version of prong five states: “any other matters which
may bear on the issue of . . . whether the introduction of extrinsic material
[substantially and injuriously] affected the verdict.” Lawson, 60 F.3d at
612 (alterations and ellipses in original).
   Other facts we have considered that might suggest the potential preju-
dice of extrinsic information is diminished in a particular case include:
11982                      FIELDS v. BROWN
particularly difficult to conclude that the law applicable to a
discrete set of circumstances was dictated by precedent.

   [15] The core principle is well-settled: evidence developed
against a defendant must come from the witness stand. In
Mattox, the bailiff remarked to jurors while they were deliber-
ating that the defendant had killed someone else, and a news-
paper article injurious to the defendant was brought to the jury
room and read. In this context, the Court articulated the now-
familiar rule that “[p]rivate communications, possibly prejudi-
cial, between jurors and third persons, or witnesses, or the
officer in charge, are absolutely forbidden, and invalidate the
verdict, at least unless their harmlessness is made to appear.”
Mattox, 146 U.S. at 150. Remmer applied the rule to allega-
tions of bribery. See 347 U.S. at 228-30. In Turner v. Louisi-
ana, 379 U.S. 466, 473-74 (1965), jurors had continuous and
intimate contact with two key government witnesses. The
Court also held in Parker v. Gladden, 385 U.S. 363, 363-64
(1966), that the defendant’s Sixth Amendment rights were
violated where the bailiff told a juror the defendant was a
“wicked fellow” and that if there were anything wrong in
finding the defendant guilty, the Supreme Court would fix it.

   We have found improper influence in similar circum-
stances, for example, when a juror received a threatening tele-
phone call at home, United States v. Armstrong, 654 F.2d

    [1] whether the prejudicial statement was ambiguously phrased;
    [2] whether the extraneous information was otherwise admissible
    or merely cumulative of other evidence adduced at trial; [3]
    whether a curative instruction was given or some other step taken
    to ameliorate the prejudice; [4] the trial context; and [5] whether
    the statement was insufficiently prejudicial given the issues and
    evidence in the case.
Sassounian, 230 F.3d at 1109 (alterations in original) (internal quotation
marks omitted) (quoting Jeffries v. Wood, 114 F.3d 1484, 1491-92 (9th
Cir. 1997)).
                       FIELDS v. BROWN                    11983
1328, 1331-33 (9th Cir. 1981); when the jury learned that the
defendant had committed a prior armed robbery, Jeffries v.
Blodgett, 5 F.3d 1180, 1191 (9th Cir. 1993); when a juror told
others about the defendant’s reputation for violence, Lawson,
60 F.3d at 612-13; when the jury discussed an extra-record
telephone call that directly related to the defendant’s motive,
Sassounian, 230 F.3d at 1108-10; and when a detective who
provided crucial testimony had a twenty-minute conversation,
factually unrelated to the trial, with three jurors during a
recess, Caliendo v. Warden of Cal. Men’s Colony, 365 F.3d
691, 696, 698 (9th Cir. 2004).

   White’s notes are not like these examples. They are a mix
of ideas “for” and “against” capital punishment. Both the Bib-
lical 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.” Sawyer v. Whitley, 505 U.S. 333, 370 (1992) (Ste-
vens, J., concurring in the 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 opposi-
tion — “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. See McDowell
v. Calderon, 107 F.3d 1351, 1367 (9th Cir. 1997) (noting that
“ ‘[t]he type of after-acquired information that potentially
taints a jury verdict should be carefully distinguished from the
general knowledge, opinions, feelings and bias that every
juror carries into the jury room’ ” (quoting Hard v. Burlington
11984                     FIELDS v. BROWN
N. R.R. Co., 870 F.2d 1454, 1461 (9th Cir. 1989))); Burling-
ton, 870 F.2d at 1462 (denying new trial where one juror used
personal knowledge of x-ray interpretation to sway others
because “[i]t is expected that jurors will bring their life expe-
riences to bear on the facts of a case”); see also Raley v. Ylst,
470 F.3d 792, 803 (9th Cir. 2006) (noting that the jury’s dis-
cussion of the practical effect of imposing a sentence of life
without parole does not constitute reversible error, and hold-
ing that considering the sentences’ comparative costs doesn’t
either). It is difficult to see how sharing notes can be constitu-
tionally infirm if sharing memory isn’t.

   Fields correctly points out that we have held it is improper
and prejudicial for the prosecution to invoke God or to para-
phrase a Biblical passage in closing argument in the penalty
phase of a capital case. See Sandoval v. Calderon, 241 F.3d
765, 776-77 (9th Cir. 2000). However, the prosecutor is con-
strained in ways that a juror is not. In Sandoval, as we
explained, the prosecutor’s argument frustrated the purpose of
the closing argument, which is to review the evidence pres-
ented at trial that is relevant to the jury’s decision as defined
by the instructions given by the court. Id. Also, the prosecu-
tion’s invocation of “higher law” or extra-judicial authority
violated the Eighth Amendment principle of narrowly chan-
neled sentencing discretion. Id. Further, we noted that argu-
ment involving religious authority undercuts the jury’s own
sense of responsibility for imposing the death penalty. Id. at
777. 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.

   [16] That said, we do not need to decide whether there was
juror misconduct because even assuming there was, we are
persuaded that White’s notes had no substantial and injurious
effect or influence in determining the jury’s verdict. Sas-
sounian, 230 F.3d at 1108 (applying Brecht19 standard on
  19
    Brecht, 507 U.S. at 623 (adopting standard for determining whether
error was harmless).
                             FIELDS v. BROWN                          11985
habeas review of claim that jury considered extrinsic evi-
dence).20 Whether or not White should have brought his notes
to the jury room and shared them,21 we cannot say that the
Biblical part of the “for” part of the notes had a substantial
and injurious effect on the verdict. His own notes had an
“against” part as well. So far as we can tell, the communica-
tion occurred early on in deliberations. Jurors could take as
much time as they needed to sort through the evidence and
  20
      Judge Berzon’s dissent posits that under Lawson, “the relevant consti-
tutional question” is whether “ ‘even a single juror’s’ vote was ‘improp-
erly influenced.’ ” Berzon, J., dissenting op. at 12020. While it is certainly
correct that the Sixth Amendment right to an impartial jury is violated by
the presence of a single improperly influenced juror, Lawson, 60 F.3d at
613, Fields must nevertheless show that the extrajudicial information had
a substantial and injurious effect on the verdict under Brecht.
   21
      The arguments on both sides of the issue are well set out in the major-
ity and dissenting opinions in the Fourth Circuit’s decision in Robinson v.
Polk, 438 F.3d 350 (4th Cir. 2006) (holding that state court did not act
unreasonably in determining that the jury’s reading of Bible passages dur-
ing sentencing deliberations in a capital case did not violate the petition-
er’s Sixth Amendment rights), together with a concurrence in the denial
of rehearing en banc by Judge Wilkinson reported at 444 F.3d 225 (4th
Cir. 2006) (suggesting that juries be instructed to avoid discussing the
Bible as a source of authority for decision making). We also acknowledge
the California Supreme Court’s recent opinion in People v. Williams, 40
Cal. 4th 287, 305-09 (2006), which held that reading several verses from
the Bible, including Romans, Chapter 13, 1-4, although misconduct, was
not inherently and substantially likely to have influenced the jury under
California law.
   Judge Berzon’s dissent claims that “federal and state appellate courts
generally agree when engaging in de novo review, that a jury engages in
the unconstitutional consultation of extrinsic material by introducing the
Bible into deliberations during a capital trial.” Berzon, J., dissenting op.
at 12011. For this proposition the lead (and only federal) citation is
McNair v. Campbell, 416 F.3d 1291, 1308 (11th Cir. 2005) (recognizing
“it is undisputed that jurors . . . considered extrinsic evidence during their
deliberations” when the jury foreperson read aloud from a Bible), cert.
denied, 126 S. Ct. 1828 (2006). However, the court in McNair held that
the issue was procedurally defaulted, stated that even if it weren’t there
was no prejudice, and made the remark quoted in the parenthetical as a
statement of fact.
11986                        FIELDS v. BROWN
reflect on whether the ultimate penalty was the right penalty.22
More 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. Kansas v. Marsh, 126 S. Ct. 2516, 2528
(2006); Richardson v. Marsh, 481 U.S. 200, 206 (1987)
(applying “the almost invariable assumption of the law that
jurors follow their instructions”).

  [17] The aggravating evidence is powerful, as all judges
who have reviewed the record have remarked. In Justice
Broussard’s summary for the California Supreme Court,
  22
     Judge Gould’s dissent speculates that “White’s Bible quotations and
passages were a catalyst in convincing the jury to vote for a death sen-
tence,” Gould, J., dissenting op. at 11998, however this trenches into terri-
tory precluded by Rule 606(b). A long line of authority makes clear that
a court may not consider whether an outside influence caused a juror to
change his vote; the question of prejudice from extrinsic information is an
objective one, not a subjective one. See, e.g., Sassounian, 230 F.3d at
1108-09 (citing cases); Dickson v. Sullivan, 849 F.2d 403, 406 (9th Cir.
1988) (“the question of prejudice is an objective, rather than a subjective,
one”); United States v. Bagnariol, 665 F.2d 877, 884-85 (9th Cir. 1981)
(“Jurors may testify regarding extraneous prejudicial information or
improper outside influences. They may not be questioned about the delib-
erative process or subjective effects of extraneous information, nor can
such information be considered by the trial or appellate courts.”); Rushen
v. Spain, 464 U.S. 114, 121 n.5 (1983). Judge Berzon’s dissent similarly
relies upon the district court’s statement that “a majority of the jurors
favored a verdict of life without the possibility of parole until the jury dis-
cussed the Biblical references.” Berzon, J., dissenting op. at 12016. How-
ever, the only support for this statement is the Declaration of Delores
Henry, which — even assuming it may properly be considered — states
only that “there were several jurors, including herself, who favored an
LWOP sentence.” Nowhere does she say (again, even if it could properly
be considered, which it cannot be) that she changed her mind on account
of White’s notes. What the record shows is that White shared his notes
with at least some jurors around 9:30 in the morning and that the jury
reached a unanimous verdict around 3:00 p.m. Of course that means that
the verdict was reached “after” White shared his notes, but there is no
basis for surmising a causal link between the two.
                          FIELDS v. BROWN                       11987
assessing prejudice under Strickland and concluding there
was no possibility of it:

       [A]side from cases of multiple murder, this was one
       of the more aggravated cases to come before this
       court. Defendant had previously been convicted of
       manslaughter. He embarked on his “one man crime
       wave” immediately after being released from prison.
       He kidnapped the murder victim and took her to his
       house where witnesses saw her, naked and bound, in
       defendant’s bedroom. He forced her to write a check
       for the balance of her bank account. He later shot
       and killed her, apparently because she had written a
       check for less than the full balance. Defendant and
       a companion then stole a car at gunpoint, kidnapped
       two prostitutes, raped them both, and severely beat
       one of them. They then kidnapped another woman,
       stole her car, and took her to defendant’s house,
       where defendant raped her and attempted to get
       money from her bank account. Thus the jury heard
       evidence not only of a murder, but also of a pattern
       of criminal behavior which, within the short period
       of three weeks, included at least three kidnappings,
       rapes, and robberies. We recognize, as habeas corpus
       counsel points out, that murders with special circum-
       stances are generally horrifying crimes, but that
       juries nevertheless return verdicts of life imprison-
       ment without possibility of parole in more than half
       the cases. But we think that even within this limited
       sphere of reference, this case is among the most
       aggravated.

In re Fields, 51 Cal. 3d 1063, 1079-80 (1991) (internal cita-
tion omitted). Given this, we see no prejudicial constitutional
error on account of the juror’s notes that requires issuance of
the writ.23
  23
    For this reason we do not reach the state’s remaining arguments for
reversal.
11988                     FIELDS v. BROWN
   [18] Dictionary definitions for terms used in the instruc-
tions directly implicate the law given by the court by which
the jury’s decision must be determined. If a jury needs help
with the instructions, the proper thing to do is ask the judge.
Misconduct though it was to research these definitions, and
for the jury to review them, we cannot say that the jury’s con-
sideration of the definitions on White’s notes had a substantial
and injurious effect or influence in determining the verdict in
this case. Fields has shown no influence whatsoever, and none
is apparent to us. Accordingly, the misconduct is harmless.24

                                  V

   We hold that Fields was not deprived of an impartial jury
and therefore the district court’s judgment on his conviction
is affirmed. We also conclude that juror misconduct, assum-
ing it occurred during the penalty phase, had no substantial or
injurious effect on the sentence. To this extent, the district
court’s judgment is reversed.

  AFFIRMED IN PART; REVERSED IN PART.




  24
    Fields also raised a number of issues having to do with the penalty
phase, but we abide the panel’s disposition as to them. Accordingly, we
reinstate Parts IV and V of Fields III, 431 F.3d at 1199-1206.
FIELDS v. BROWN           11989
                  Volume 2 of 2
11990                   FIELDS v. BROWN



GOULD, Circuit Judge, with whom MCKEOWN and
WARDLAW, Circuit Judges, join, concurring in part and dis-
senting in part:

   I concur in Sections I, II, and III of Judge Rymer’s majority
opinion insofar as it rejects the bias claims urged by Fields as
grounds for habeas relief from his conviction. I respectfully
dissent, however, from the majority’s analysis in Section IV
of the challenged introduction by the jury foreman of written
biblical quotations and notes “for” and “against” capital pun-
ishment. I disagree with the majority’s decision not to decide
if this extraordinary appeal of the jury foreman to “higher
law” of the Bible constituted jury misconduct. I also disagree
with the majority’s conclusion that the use of written Bible
quotations and notes in this manner during jury deliberations
did not have any substantial injurious effect on the jury delib-
erations and death sentence.

                               I

   It is error here to sidestep the issue of jury misconduct. It
is well-settled that religion may not play a role in the sentenc-
ing process. See e.g., Bennet v. Angelone, 92 F.3d 1336, 1346
(4th Cir. 1996); Coe v. Bell, 161 F.3d 320, 351 (6th Cir.
                        FIELDS v. BROWN                    11991
1998); United States v. Giry, 818 F.2d 120 (1st Cir. 1987),
cert. denied, 484 U.S. 855 (1987). Appealing to the wisdom
of the Bible, as admirable as it is in other contexts, is beyond
doubt jury misconduct when the jury is given by the foreman
written and selected quotations from the Bible, which were
not introduced into evidence through a witness or subjected to
cross-examination, to aid in and influence jury deliberations.

   The Sixth Amendment’s guarantees of a trial by an impar-
tial jury and the right of confrontation require that the jury
base its verdict on the evidence presented at trial. Turner v.
Louisiana, 379 U.S. 466, 472-73 (1965). “It is vital in capital
cases that the jury should pass upon the case free from exter-
nal causes tending to disturb the exercise of deliberate and
unbiased judgment.” Mattox v. United States, 146 U.S. 140,
149 (1892). These rights apply equally to sentencing proceed-
ings tried to a jury, as they do to guilt deliberations. See Mor-
gan v. Illinois, 504 U.S. 719, 727-28 (1992).

   In declining to decide if the introduction of biblical quota-
tions and notes is juror misconduct, the majority argues that
Bible verses are not similar to extrinsic materials that we and
the Supreme Court have previously found prejudicial because
they are “notions of general currency that inform the moral
judgment” of capital-case jurors. See supra Section IV at
11983. This argument is unpersuasive.

   To begin, the majority postulates that White’s researched
Bible verses and notes were “a mix of ideas ‘for’ and
‘against’ capital punishment.” See supra Section IV at 11983.
One need not be a biblical scholar to see that the list provided
by the foreperson was slanted by his personal judgments and
inclinations, and was intended to spur deliberations towards a
sentence of death rather than life imprisonment. On shear
numbers alone, White’s Bible references in favor of the death
penalty had at least thirteen separate entries, with over thirty-
one lines of writing and several lengthy direct quotations from
the Bible, including one quotation of thirteen lines of verse.
11992                   FIELDS v. BROWN
See supra Section IV at 11977-78 n.15. Conversely, the “con”
side had no Bible quotations and a mere six entries on six
written lines. Additionally, the “con” list was comprised of
piecemeal ideas and thoughts, whereas the “pro” death pen-
alty list contains numerous references to higher law from the
Bible such as an “eye for eye” and “ ‘[l]et everyone be subject
to the higher authorities, for there exists no authority except
from God.’ ” See id. Missing from the “con” list are biblical
quotes that might have been marshaled against the death pen-
alty. 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 peace-
ably 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.”; Deut. 21:18-21; Exod.
31:14-15. The extreme lopsided nature of the pro and con lists
simply underscores the emphasis White placed on Biblical
justification of the death penalty.

   Moreover, I think it fanciful for the majority to say that the
Bible quotations are merely “notions of general currency that
inform the moral judgment that capital-case jurors are called
upon to make.” The majority claims that White’s Bible quota-
tions were all “well-known themes,” and that he “marshaled
general, commonly known points in favor of the death penal-
ty.” See supra Section IV at 11983. The majority does not say
what percentage of the general public is familiar with each of
these quotations, even if that were assumed to be valid. If
these biblical verses are well known as “notions of general
currency,” why did White have to conduct research to pro-
duce them? It is one thing to say something is common
knowledge when a person recites it from memory, but it is
quite a different thing altogether to argue that a Bible verse
is common knowledge when a person has to research the
Bible, and write down text to remember it.

  Certainly, the majority is not claiming that each and every
word of the entire Bible is common knowledge? In this case,
                       FIELDS v. BROWN                    11993
White conducted independent research of the Bible and dic-
tionary. He wrote down his results to present during jury
deliberations the following day. Furthermore, White didn’t
simply jot down a few biblical catch-phrases, but instead he
wrote down over seventeen lines of quoted text. Putting aside
biblical scholars and persons capable of extraordinary mem-
ory feats, it is unlikely that for many persons seventeen lines
of biblical text, and indeed thirteen consecutive lines from one
quote, can be viewed as a “notion of general currency.”

   Moreover, even if these can be characterized sensibly as
“notions of general currency,” then are they notions that some
jurors might view as divinely commanded or inspired? If
these quotes from the Bible are “notions of general currency,”
then would the majority say that the same is true if the
foreperson had brought in written quotations from other reli-
gious texts, whether those of Bhuddism, Hinduism, or Islam,
or even of other religions that command smaller groups of
adherents? As Judge Wilkinson of the Fourth Circuit empha-
sized in his concurring opinion in Robinson v. Polk (Polk II):

    Though many of its teachings are universal, the
    Bible nonetheless remains a sectarian text that serves
    as the theological foundation for certain religions
    and not others. If it could be brought into the jury
    room as a basis for discussion and debate upon the
    ultimate punishment the state may impose, it would
    be only a short while before jurors of different faiths
    brought their own holy texts into the conversation.
    The jury room is not the place to debate the respec-
    tive merits of the Bible, the Koran, the Torah, or any
    other religious scripture that Americans revere, nor
    is it the proper forum for a clash between belief and
    non-belief. These discussions would likely be divi-
    sive, and might range far afield from the appropriate
    legal and factual inquiry. In a pluralistic America,
    the jury room must remain a place of common
11994                       FIELDS v. BROWN
      ground firmly rooted in law, irrespective of deeply
      and sincerely held religious differences.

444 F.3d 225, 227 (4th Cir. 2006).

   If the majority’s rule applies only to the introduction of
quotes from the Judaeo-Christian Bible, then this introduces
something akin to an Establishment Clause violation into the
heart of the jury room.1 If quotes from the Bible are okay,
what if the foreman had brought in quotes from the Koran, or
from a particular fatwa, indicating that some terrorist act of
murder was okay under a different religious text. Surely it
cannot be our law that jury forepersons may urge action by a
jury in accord with written quotes provided from the Bible,
external to the evidence developed in the trial, but that jurors
cannot submit written statements from other religions to like
effect.

   The idea of “notions of general currency” is one that the
majority does not even try to corral, and this is an idea that
will likely prove unworkable in practice when courts try to
delimit the scope of the majority’s doctrine. Is it solely ethical
principles from the familiar Bible? Does it also include ethical
principles from other religions? Does it include ethical princi-
ples from philosophers?2 Does it include street-corner wisdom
  1
     See Polk II, 444 F.3d at 227 (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.”); Shelly v. Kramer, 334 U.S. 1, 20
(1948) (“The judicial action in each case bears the clear and unmistakable
imprimatur of the State.”); see also Paul G. Kauper, Civil Liberties and
the Constitution, 141-52 (1st ed. paperback, The University of Michigan
Press 1966) (1962); Gary J. Simson & Stephen P. Garvey, Knockin’ on
Heaven’s Door: Rethinking the Role of Religion in Death Penalty Cases,
86 Cornell L. Rev. 1090, 1121 (2001); Terrence T. Egland, Prejudiced by
the Presence of God: Keeping Religious Material out of Death Penalty
Deliberations, 16 Cap. Def. J. 337, 356-66 (2004).
   2
     In 1974, the late Professor Black from Yale University Law School
wrote Capital Punishment: The Inevitability of Caprice and Mistake, a
                            FIELDS v. BROWN                          11995
such as might be found in popular novels of any number of
current authors whose books line the supermarket shelves?3

   This is not merely a case presenting juror misconduct in
introducing extrinsic evidence. It is worse because the evi-
dence White introduced was that of a “higher law” from the
Bible. The United States Supreme Court has labored for dec-
ades to set applicable rules for death penalty cases that con-
strain the exercise of discretion by jurors and that help ensure
that when the death penalty is implemented it is based on law.
That means that it is based on secular law, not on the law of
God or of any particular juror’s view of that law.

   The “use by deliberating jurors of an extrajudicial code (not
already embodied in their own characters) cannot be recon-
ciled 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.” Jones v. Kemp, 706 F.
Supp. 1534, 1559 (N.D. Ga. 1989). California’s death penalty

piece urging the end of the death penalty and rehearsing arguments pro
and con in it. Consider also, Mohandas K. Gandhi, My Faith in Non-
Violence, in SOCIAL AND POLITICAL PHILOSOPHY 542 (John Sommerville &
Ronald E. Santoni eds., Doubleday 1963) (“[W]herever you are con-
fronted with an opponent, conquer him with love.”). Could a jury foreper-
son or other juror bring written quotes from Professor Black’s book pro
and con on the death penalty? Perhaps Ghandi’s teachings would be
allowed? Introduction of these works, and others like them, would trans-
form jury deliberations into a discussion of the merits of the death penalty.
Yet, that debate, at least for United States legal purposes, has been put to
rest, by the Supreme Court decision in Gregg v. Georgia, 428 U.S. 153
(1976).
   3
     There is no shortage of popular authors who write on crime-related
subjects, among these consider the many novels of Scott Turow, Dean
Koontz, and others. Under the majority’s rule, might the foreperson have
summarized what Turow thinks, or what his fictional characters think,
about the death penalty? Certainly some would say these authors press and
post views of general currency in the world, and that is why they are best-
selling authors.
11996                   FIELDS v. BROWN
statute provides specific factors the jury is to consider to dis-
tinguish “the few cases in which [the death penalty] is
imposed from the many in which it is not.” Godfrey v. Geor-
gia, 446 U.S. 420, 427 (1980) (internal quotation marks omit-
ted). 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,” Jones, 706 F. Supp. at 1559-60,
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 deter-
mine whether to commit Fields to death or sentence him to
life imprisonment. See Polk II, 444 F.3d at 227 (Wilkinson,
J., concurring) (reasoning that the Bible’s “place as a canon
of scriptural authority is so powerful that it threatens to sup-
plant the individualized sentencing inquiry into the nature and
consequences of the crime and the particular aggravating and
mitigating circumstances”); People v. Harlan, 109 P.3d 616,
631 (Colo. 2005) (reasoning that the Bible, as higher law, is
very persuasive to a typical juror as it relieves “the juror from
his or her individual responsibility to determine whether to
commit a person to death because God commands that
result”).

   Here, White introduced Biblical quotations and passages
into the jury deliberations. The Bible quotations were circu-
lated to, and discussed by, the jury collectively during its
deliberations. White’s introduction of extrinsic information,
especially extrinsic religious precepts from the Bible, was
juror misconduct. 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.” See Polk II, 444
F.3d at 226 27 (Wilkinson, J., concurring).

                               II

   White’s sentence should be vacated if it is shown that the
juror misconduct error “had substantial and injurious effect or
                        FIELDS v. BROWN                    11997
influence in determining the jury’s verdict.” Brecht v.
Abrahamson, 507 U.S. 619, 623 (1993) (quoting Kotteakos v.
United States, 328 U.S. 750, 776 (1946)).

   The majority concludes White’s introduction of Bible quo-
tations and passages, and dictionary research was not prejudi-
cial primarily because: (1) it presumed that the jury followed
the trial court’s instructions to base its sentence verdict on the
facts and instructed law; and (2) Fields did not show influence
on the jury, nor was it apparent to the majority opinion in
light of Fields’s heinous crimes. See supra Section IV at
11984-85.

   As a general rule, we presume that jurors follow the trial
court’s instructions. See Kansas v. Marsh, 126 S. Ct. 2516,
2528 (2006). But here the conclusion is inescapable that the
jury did not follow the trial court’s instructions. The trial
court charged the jury with determining whether to sentence
Fields to death or life imprisonment, and instructed the jury
to consider only the evidence presented at trial and the factors
enumerated in California Penal Code § 190.3. The 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.

   The majority admits that it was misconduct for the jury to
disregard the trial court’s instructions and research definitions
in a dictionary. See supra Section IV at 11988. Yet, the
majority presumes that the jury followed the trial court’s
instructions in reaching its penalty verdict after consulting and
discussing the Bible quotations. See supra Section IV at
11986. What basis is there to presume, as the majority does,
that after consulting both the dictionary and the Bible for aid
in deliberations, that the jury members disregarded the secular
and divine insights gleaned from these sources and based the
sentencing decision on the facts and the law as stated by the
trial judge. Indeed, just the opposite is likely. This jury proved
it did not follow the trial court’s specific and explicit instruc-
11998                       FIELDS v. BROWN
tions. Because of this, we should recognize that the jury disre-
garded the trial court’s instructions and based their death
sentence not only on the facts and law as stated by the judge,
but also on the insight and independently researched support
garnered from the Bible and dictionary.

   The majority’s prejudice analysis is wishful thinking.
White’s written researched Bible quotations and passages in
favor of the death penalty were introduced to the jury at the
start of the second day of deliberations. According to the dis-
trict court, White’s written Bible quotations were discussed,
or made available to the jury, for about 70% of the total time
the jury deliberated. The jury on an initial vote, before seeing
these written Bible quotations, was more inclined to a life
sentence than to death.4 Given the authority of the Bible’s
“higher law,” and the time White was able to advocate for the
death sentence using these quotations, it is not a stretch to say
objectively that White’s Bible quotations and passages were
a catalyst in convincing the jury to vote for a death sentence.

   We have good reason to suspect that here the change in the
jury’s views probably were related to the misconduct. Consid-
ering that if only one juror had declined to sentence Fields to
death the trial court would have been obligated to impose a
life sentence, it is more probable than not that White’s intro-
duction of written researched Bible quotations into jury delib-
  4
    The majority opinion correctly points out that under Federal Rule of
Evidence 606(b) and our precedent we “may not consider whether an out-
side influence caused a juror to change his vote; the question of prejudice
from extrinsic information is an objective one.” See supra Section IV at
11986 n.22. Yet, my observation that a majority of jurors before seeing the
written Bible quotations were favoring a life sentence without parole is not
a subjective discussion on whether White’s Bible quotations and extrinsic
notes caused the jurors to change their votes. Rather, the court should rec-
ognize this fact as a starting point, similar to noting when White intro-
duced his outside written research into the deliberations. These facts
inform an objective analysis to determine if the introduction of White’s
improper Bible written quotations had a substantial and injurious effect or
influence in determining the jury’s verdict.
                            FIELDS v. BROWN                          11999
erations had a “substantial and injurious” influence on the
jury’s verdict. Brecht, 507 U.S. at 623.

   One may only hope that the Ninth Circuit will eventually
come to recognize that the majority opinion here errs by
blinking over the serious jury misconduct that occurred in the
penalty phase. The last thing that this country needs, and a
thing inconsistent with our constitutional traditions and the
paramount role of the jury in our criminal justice system, is
to have a theocratic jury room in which a jury foreman can
present the jury with notes compiled from the Bible with a
selected “pro and con” on the death penalty in light of scrip-
ture. The majority fails to realize that a written appeal to
“higher law” of the Bible in the jury room by tendering notes
to the jurors that were not admitted in evidence or tested by
cross-examination is inconsistent with the carefully wrought
scheme by which the Supreme Court has held that the ulti-
mate penalty of death can be meted out by a jury when the
rules are followed. Fields’s crimes are horrific, and it is not
difficult to see that a jury might have decided that death was
warranted. But the rules were not followed in the jury room
in the penalty phase. Evidence or extrinsic material that was
not admitted was summoned up by the jury foreman. This sit-
uation was made worse by the evidence or extrinsic material
being of a religious nature that would unduly influence jurors.
The majority’s conclusion that any error was harmless is
entirely speculative, for it seems probable that an absence of
the marshaled biblical lore favoring death might have tilted at
least one juror from seeking the retribution of a death penalty
to embracing the mercy of life imprisonment.5 The timing, the
source of the external evidence or extrinsic material, the spec-
  5
   I have observed in another context: “As Shakespeare reminded us:
‘The quality of mercy is not strain’d, It droppeth as the gentle rain from
heaven Upon the place beneath.’ So too, in our analysis of prejudice, we
must remind ourselves that the possibility of mercy, like the possibility of
gentle rain, is not predictable with certainty.” Mayfield v. Woodford, 270
F.3d 915, 938 (9th Cir. 2001) (Gould, J., concurring) (in part quoting Wil-
liam Shakespeare, The Merchant of Venice, act IV, sc. 1.).
12000                   FIELDS v. BROWN
ificity of the notes and the lopsided pro and con chart per-
suade me that the notes had a substantial and injurious
influence in determining the verdict. I respectfully dissent.



BERZON, Circuit Judge, with whom REINHARDT and
THOMAS, Circuit Judges, join, dissenting:

   Stevie Lamar Fields was charged with capital murder. He
had the constitutional right to have twelve impartial jurors
decide under California law whether he had committed the
grave crime with which he was charged and, if so, whether he
should lose his life as a result. Instead, he was sentenced to
death by a jury whose foreperson brought into the jury room,
and placed before his colleagues for consideration, lengthy
Biblical quotations that clashed with the judge’s instructions,
with California death penalty law, and with constitutional pre-
cepts governing sentencing in a death penalty case. And he
was convicted and sentenced to death by a jury containing one
juror whose personal circumstances, objectively speaking and
assuming an entirely good faith effort on his part to disregard
those circumstances, made it highly unlikely that he could be
the “impartial and indifferent” decisionmaker that “due pro-
cess alone has long demanded.” Morgan v. Illinois, 504 U.S.
719, 727 (1992).

   The federal district court held that Fields could not be con-
demned to death by a jury encouraged to rely on religious
texts rather than the judge’s instructions as the basis for its
fateful decision. The majority of this en banc court, however
— after an exegesis that almost, but not quite, sanctions the
jury’s collective recourse to lengthy quotations from the Bible
— somehow divines that Fields would have been convicted
and sentenced to death even if the jury had not consulted the
Bible’s absolutist standards for imposing the death penalty.
The majority also concludes that we must accept as disposi-
tive a juror’s assertions that he was able to disregard the close
                           FIELDS v. BROWN                         12001
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.1

   Following the order in which the district court addressed
Fields’s claims, I first examine the jury’s use of extrinsic
materials — principally, passages from the Bible — during
penalty phase deliberations. I explain why the district court
correctly determined that this action violated Fields’s consti-
tutional rights, and why the majority’s lack-of-prejudice anal-
ysis disregards the unusual problems that inhere in making a
prejudice determination with regard to the impact of external
influences on jury deliberations. I then address why, in the
unique circumstances of this case — which go far beyond the
fact that a juror’s wife was a rape victim and that Fields stood
accused of rape — the challenged juror’s “potential for sub-
stantial emotional involvement, adversely affecting impartiali-
ty” is palpable. Tinsley v. Borg, 895 F.2d 520, 527 (9th Cir.
1990) (quoting United States v. Allsup, 566 F.2d 68, 71 (9th
Cir. 1977)) (internal quotation marks omitted). This is there-
fore “one of ‘those extreme situations where the relationship
between a . . . juror and some aspect of the litigation is such
that it is highly unlikely that the average person could remain
impartial in his deliberations under the circumstances.’ ” Id.
(quoting Person v. Miller, 854 F.2d 656, 664 (4th Cir. 1988)).

                                    I.

  Before proceeding to either discussion, however, I begin
with some reflections about the complex vision of the role of
  1
    I agree with the majority that Fields’s jury misconduct and jury bias
claims do not seek the retroactive application of law foreclosed by Teague
v. Lane, 489 U.S. 288 (1989).
12002                   FIELDS v. BROWN
the jury in our legal system that underlies both sets of legal
principles here applicable — those dealing with the sealing
off of jurors from external influences once they are seated,
and those dealing with juror bias or predisposition. Quite evi-
dently, both sets of principles are grounded to some degree in
a “black box” theory of the ideal jury: The perfect juror, on
this posit, is a person who comes into court with all his or her
reasoning processes intact, and no bias, predisposition, or pre-
judgment that would be an obstacle to fair decisionmaking.
The perfect juror is then exposed only to that testimony, evi-
dence, and argument the parties present and that the judge
deems proper under the law, and is later told by the judge, and
the judge alone, which legal principles to apply. Our paragon
juror then limits his or her decision to that which was pres-
ented, that which was argued, and that which was instructed,
generating a verdict pristinely insulated from all extraneous
influences, internal and external.

   But the “black box” theory of jury virtue is, quite obvi-
ously, far from the whole story. As the stress we place on
obtaining a jury that represents a fair cross-section of a defen-
dant’s peers indicates, see, e.g., Taylor v. Louisiana, 419 U.S.
522, 530-31 (1975), we also recognize, and value, the diverse
perspectives jurors of different professions, racial back-
grounds, economic circumstances, residential areas, and polit-
ical and religious views bring to the determination of guilt and
innocence and even, as in this case, life and death. Jurors all
cut from the same mold, we have come to believe, are less
likely to engage in useful collective deliberations, in which
the whole is greater than its parts. Put another way, if all unbi-
ased jurors of average intelligence were likely to think the
same way with the same input, if jury deliberations were like
arithmetic or algebra, then we could do with one juror rather
than many. But we don’t, and we don’t want to. See Ballew
v. Georgia, 435 U.S. 223, 230-39 (1978) (holding that the
Constitution requires criminal juries to comprise at least six
members in part because a smaller size “leads to inaccurate
fact-finding and incorrect application of the common sense of
                       FIELDS v. BROWN                   12003
the community to the facts,” and because “the opportunity for
meaningful and appropriate representation [of minority
groups] does decrease with the size of the panels”); see also
Tinsley, 895 F.2d at 528 (noting the foolishness of a doctrine
that would categorically disqualify jurors from serving in
cases in which their group affiliations might suggest a ten-
dency toward a particular outcome (citing United States v.
Salamone, 800 F.2d 1216, 1225 (3d Cir. 1986)).

   Other considerations as well temper in our jurisprudence
the “black box” approach to jury deliberations. Among the
most important is the emphasis we place on the importance of
the privacy of jury deliberations. Jurors who expect that their
deliberative processes will be open for exposure and interro-
gation after the verdict is in are likely to pull punches — to
say less than they mean, to keep their reasons to themselves
and only pronounce bottom-line conclusions, and to fail to
respond to points made by fellow jurors. See McDonald v.
Pless, 238 U.S. 264, 267-68 (1915) (“But let it once be estab-
lished that verdicts solemnly made and publicly returned into
court can be attacked and set aside on the testimony of those
who took part in their publication and all verdicts could be,
and many would be, followed by an inquiry in the hope of
discovering something which might invalidate the finding. . . .
If evidence thus secured could be thus used, the 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.”).

   An additional consideration is, of course, the recognition
that jurors are simply human beings and human beings are not
perfect, whether in their recollection, their understanding of
language, or their ability fully to understand their own moti-
vations and reasoning processes. See McDonough Power
Equip., Inc. v. Greenwood, 464 U.S. 548, 555 (1984) (“The
varied responses to respondents’ question on voir dire testify
to the fact that jurors are not necessarily experts in English
usage. Called as they are from all walks of life, many may be
12004                   FIELDS v. BROWN
uncertain as to the meaning of terms which are relatively eas-
ily understood by lawyers and judges.”). Legal processes do
have to come to an end, and litigants, while assuredly entitled
to a fair trial, are not entitled to a perfect one. See id. (“To
invalidate the result of a three-week trial because of a juror’s
mistaken, though honest response to a question, is to insist on
something closer to perfection than our judicial system can be
expected to give.”).

   This constellation of ideals, competing values, and practical
considerations has led to a nuanced set of procedures and
standards designed to assure an “impartial and indifferent”
jury without losing sight of the value of diversity of back-
grounds, the need for insulating the jury’s deliberative process
in large degree from later inquiry, and the reality that human
perfection is not likely any time in the near future. Those pro-
cedures include voir dire, designed to ferret out without
unduly intrusive inquiry those individuals who have a connec-
tion to the particular case — to its parties, its facts, its legal
standards — such that, consciously or not, that connection is
simply too likely to be a barrier to a fair — not pristine but
fair — consideration of the evidence, argument, and legal
standards presented. They also include instructions to the jury
forbidding them to discuss the case with anyone other than
fellow jurors once seated and not to discuss the case with
even fellow jurors before the instructions are given and the
jury retires to deliberate. See CAL. JURY INSTR. CRIM. 0.50
(“You must not converse among yourselves, or with anyone
else, including but not limited to, spouses, spiritual leaders or
advisers, or therapists, on any subject connected with the trial,
except when all the following conditions exist: (a) The case
has been submitted to you for your decision by the court, fol-
lowing arguments by counsel and jury instructions; (b) You
are discussing the case with a fellow juror; and (c) All twelve
jurors [and no other persons] are present in the jury deliberat-
ing room.” (brackets in original)). At the same time, only
rarely do we insist that jurors must be cloistered altogether
during trial, rather than going home to their communities —
                         FIELDS v. BROWN                     12005
and to the real possibility of exposure to media, to the opin-
ions of friends and family, and to the opportunity to conduct
investigations or legal inquiries beyond those available in the
courtroom. And the accommodating jury procedures also
include evidentiary limitations on inquiry into the jury’s ver-
dict once it issues — limitations that are not absolute, but
which are designed to allow inquiry only into objective, exter-
nal factors that may have interfered with the jury’s function-
ing. See FED. R. EVID. 606(b) (“Upon an inquiry into the
validity of a verdict . . . , a juror may not testify as to any mat-
ter 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 concerning the
juror’s mental processes in connection therewith. But a juror
may testify about (1) whether extraneous prejudicial informa-
tion was improperly brought to the jury’s attention, [and] (2)
whether any outside influence was improperly brought to bear
upon any juror . . . .”).

   All three of these sets of procedures could be much more
absolute if our commitment to the “black box” jury were rigid
— which, as I have said, it decidedly is not. Yet, they all posit
a limit beyond which an extreme departure from the ideal is
unacceptable and will lead to reversal of a verdict. That limit
is reached, in the most general of terms, when the circum-
stances of either one or more jurors or of the nature of the jury
deliberations are such that we simply lose confidence that the
verdict was reached on the basis of the facts, argument, and
legal standards presented in the courtroom.

   The majority places a great deal of its emphasis upon the
considerable barriers we have erected, for very good reason
as I have said, upon post-hoc inquiry into jury verdicts, and
upon our encouragement of interchange among jurors based
on their life experiences. In doing so, however, it loses sight
of the fact that we have not let go of the conviction that there
are circumstances in which the connection of a juror to the
12006                        FIELDS v. BROWN
particulars of a case is so great that an emotional rather than
rational verdict is likely — and is likely whether the juror so
recognizes or not — because, as the very juror in question in
this case said, “you can never be sure what’s in the back of
your mind.” And it also loses sight of the impermeable line
we have set between drawing on one’s life experience and
active research of outside sources, with regard to the facts or
to the legal standards that are to govern the case.

   The distinctions drawn may appear fine, but they are estab-
lished and they are the result of considered compromises
reached over time between the competing considerations that
govern jury deliberations, some of which I have suggested. To
resolve this case on the basis of slogans — for example, the
assertion that jurors bring their moral precepts to the jury
room, or that we must believe jurors who say they can over-
come any emotional relationship they have to the particular
facts — is simply to disregard the careful balances struck in
our case law, so to allow the all-important jury system to
serve its critical purposes.

                                    II.

                                     A.

   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,[2] you shall
  2
   Those factors were:
      (a) The circumstances of the crime of which the defendant was
      convicted in the present proceeding and the existence of any spe-
      cial circumstances found to be true . . . .
      (b) The presence or absence of criminal activity by the defendant
      which involved the use or attempted use of force or violence or
      the express or implied threat to use force or violence.
                           FIELDS v. BROWN                         12007
determine whether the penalty to be imposed on defendant
shall be death or confinement in the State Prison for life with-
out the possibility of parole.” Nonetheless, after the first day
of penalty-phase deliberations in Fields’s trial, the jury
foreperson, Rodney White, went home; consulted the Bible
and a dictionary; wrote out three pages of notes — including
verbatim copies of three Bible passages, Genesis 9:6, Exodus
21:12, and Romans 13:1-5, widely understood to advocate
capital punishment; brought those notes into the jury room the
next morning; and shared them with his fellow jurors.

  We have consistently recognized that the Sixth Amendment
prohibits jurors from introducing matters into deliberations
not presented during the trial. See Gibson v. Clanon, 633 F.2d

    (c) Whether or not the offense was committed while the defen-
    dant was under the influence of extreme mental or emotional dis-
    turbance.
    (d) Whether or not the victim was a participant in the defendant’s
    homicidal conduct or consented to the homicidal act.
    (e) Whether or not the offense was committed under circum-
    stances which the defendant reasonably believed to be a moral
    justification or extenuation for his conduct.
    (f) Whether or not the defendant acted under extreme duress or
    under the substantial domination of another person.
    (g) Whether or not at the time of the offense the capacity of the
    defendant to appreciate the criminality of his conduct or to con-
    form his conduct to the requirements of law was impaired as a
    result of mental disease or the affects [sic] of intoxication.
    (h) The age of the defendant at the time of the crime.
    (i) Whether or not the defendant was an accomplice to the
    offense and his participation in the commission of the offense
    was relatively minor.
    (j) Any other circumstance which extenuates the gravity of the
    crime even though it is not a legal excuse for the crime.
CAL. PENAL CODE § 190.3 (1977).
12008                  FIELDS v. BROWN
851, 854 (9th Cir. 1980) (explaining that a jury’s consider-
ation of extrinsic material is a constitutional violation).
Although our case law often refers to such misconduct as the
jury’s consultation of “extrinsic evidence” or “extraneous
facts,” we have explained that “[e]xtraneous-evidence cases
involve not only the introduction of ‘evidence’ per se but the
‘submission of “extraneous information” (e.g., a file or dictio-
nary) to the jury.’ ” United States v. Rosenthal, 454 F.3d 943,
949 (9th Cir. 2006) (quoting United States v. Madrid, 842
F.2d 1090, 1093 (9th Cir. 1988)); see also Marino v. Vasquez,
812 F.2d 499, 502-03, 505 (9th Cir. 1987) (holding that con-
sulting a dictionary definition for the meaning of “malice”
constituted the consideration of extrinsic information).
Instead, analysis of an extrinsic information claim depends on
whether the outside information “pertain[s] to ‘any fact in
controversy or any law applicable to the case.’ ” Madrid, 842
F.2d at 1093 (emphasis added) (quoting Rushen v. Spain, 464
U.S. 114, 121 (1983) (per curiam)); see also Thompson v.
Borg, 74 F.3d 1571, 1574 (9th Cir. 1996) (“Juror misconduct
typically occurs when a member of the jury has introduced
into its deliberations matter which was not in evidence or in
the instructions.” (emphasis added)).

   Here, there is no question that the Biblical passages copied
by White pertained to the key legal question before the jury
at the penalty phase — whether death was the appropriate
sentence for Fields’s acts. As the district court correctly
observed, several of the passages expressed an absolute com-
mand to execute murderers:

    The Biblical passages cited by Juror White were not
    general passages dealing with morality or the com-
    monplace principle that capital punishment is per-
    missible in the abstract in the Judeo-Christian ethical
    and religious tradition. The references directed the
    jury that the death penalty should be imposed in any
    case involving murder.
                         FIELDS v. BROWN                    12009
Fields v. Calderon, No. CV 92-0465 DT, slip op. at 15 (C.D.
Cal. Jan. 18, 2000) (emphasis added) (citation and internal
quotation marks omitted).

   There is also no question that in their absolute nature, the
Biblical passages contained in White’s notes clashed with
standards California law provided for making such decisions.
The jurors were instructed to make their decision based on
California’s 1977 death penalty statute that detailed an indi-
vidualized process for determining whether a defendant
should be executed:

      After having heard and received all of the evidence,
      the trier of fact shall consider, take into account and
      be guided by the aggravating and mitigating circum-
      stances referred to in this section,[3] and shall deter-
      mine whether the penalty shall be death or life
      imprisonment without the possibility of parole.

CAL. PENAL CODE § 190.3 (1977). The California Supreme
Court has held this statute “require[d] the jury to concentrate
upon the circumstances surrounding both the offense and the
offender.” People v. Jackson, 28 Cal. 3d 264, 316 (1980),
overruled on other grounds by People v. Cromer, 24 Cal. 4th
889 (2001). Accordingly, “religious doctrine, commandments
or biblical passages” are “factors outside section 190.3.” Peo-
ple v. Sandoval, 4 Cal. 4th 155, 193-94 (1992), aff’d on other
grounds, 511 U.S. 1 (1994).

   By introducing the absolutist Biblical commands into delib-
erations, White effectively suggested that the jury ignore the
individualized sentencing process provided by state law and
demanded by the federal Constitution. As we said in Sandoval
v. Calderon:
  3
   See supra note 2.
12010                        FIELDS v. BROWN
     [I]nvocation of higher law or extra-judicial authority
     violates the Eighth Amendment principle that the
     death penalty may be constitutionally imposed only
     when the jury makes findings under a sentencing
     scheme that carefully focuses the jury on the specific
     factors it is to consider in reaching a verdict. The
     Biblical concepts of vengeance . . . do not recognize
     such a refined approach. Argument involving reli-
     gious authority also undercuts the jury’s own sense
     of responsibility for imposing the death penalty.

241 F.3d 765, 776-77 (9th Cir. 2001) (citations omitted);4 see
also Robinson v. Polk, 444 F.3d 225, 232 (4th Cir. 2006)
(King, J., dissenting from the denial of rehearing en banc)
(“In effect, this juror requested that his fellow jurors throw the
individualized consideration required by the Constitution to
the wind, for while the Constitution requires that the death
penalty be imposed through structured discretion on only a
narrow class of the worst murderers, the principle of ‘an eye
for an eye’ licenses death as a punishment for any murder, a
position rejected by the Supreme Court as contrary to the Consti-
tution.”).5 Substantively, then, there is no doubt that the Bibli-
   4
     I fail to understand the majority’s claim that the jury’s own decision
to deliberate based upon the Bible is less violative of the constitutional
requirement of narrowly channeled sentencing discretion or prohibition on
undercutting the jury’s sense of responsibility for imposing death than a
prosecutor urging the same effect. Maj. op. at 11984. The ultimate sub-
stantive concern is how the jury actually deliberates, not who caused them
to deliberate in an unconstitutional manner.
   5
     In a closely related context, the Supreme Court has been emphatic that
the Sixth Amendment guarantee to “the impartiality of any jury that will
undertake capital sentencing” includes the guarantee that jurors will not
simply vote to impose the death penalty for any murder. Morgan, 504 U.S.
at 728. As a result, a death sentence is unconstitutional if the jury includes
“even one” juror who “will fail in good faith to consider the evidence of
aggravating and mitigating circumstances as the instructions require him
to do.” Id. at 729 (emphasis added); see also Wainwright v. Witt, 469 U.S.
412, 422 (1985) (allowing a potential juror to be removed for cause when
his voir dire answers suggest that “he refuses to follow the statutory
scheme” and instead “might vote for death under certain personal stan-
dards” (emphases omitted)).
                            FIELDS v. BROWN                          12011
cal quotations introduced a set of standards that contradicted
the ones the jury was supposed to apply in deciding whether
Fields was to live or die.

   As to the procedural propriety of consulting the Bible dur-
ing deliberations, federal and state appellate courts generally
agree when engaging in de novo review, that a jury engages
in the unconstitutional consultation of extrinsic material by
introducing the Bible into deliberations during a capital trial.
McNair v. Campbell, 416 F.3d 1291, 1308 (11th Cir. 2005)
(recognizing “it is undisputed that jurors . . . considered
extrinsic evidence during their deliberations” when the jury
foreperson read aloud from a Bible), cert. denied, 126 S. Ct.
1828 (2006);6 Jones v. Kemp, 706 F. Supp. 1534, 1559 (N.D.
Ga. 1989) (holding the use of a Bible by the jury constituted
an impermissible “search for the command of extra-judicial
‘law’ from [a] source other than the trial judge”); McNair v.
State, 706 So. 2d 828, 837 (Ala. Crim. App. 1997) (analyzing
a jury’s use of the Bible during deliberations according to the
“well settled principle of law . . . [that] is fundamental to a
fair trial . . . that jurors should consider only the evidence
presented at trial” (quoting Ex parte Troha, 462 So. 2d 953,
954 (Ala. 1984)) (internal quotation mark omitted)); People v.
Danks, 32 Cal. 4th 269, 308 (2004) (holding a juror engaged
in misconduct by “bringing a copy of the [Biblical] passage
into the jury room, and passing it around to the other jurors”);
People v. Harlan, 109 P.3d 616, 629 (Colo. 2005) (holding
the use of written Biblical materials in the jury room was
improper under state law that prohibited “[e]xposure of a jury
to information or influences outside of the trial process
itself”); State v. Harrington, 627 S.W.2d 345, 350 (Tenn.
  6
    The majority says that McNair referred to the Bible extracts as “extrin-
sic evidence” only “as a statement of fact.” Maj Op. at 11986 n.22. The
Eleventh Circuit so stated in a section called the “Merits,” and after a
lengthy paragraph setting out the standards applicable to assessing the
impact of extrinsic evidence. See McNair, 416 F.3d at 1307-08. In context
the “undisputed” comment is not simply a statement of the parties’ posi-
tions but an indication that the point is so obvious as to be indisputable.
12012                       FIELDS v. BROWN
1981) (holding error occurred when “the jury foreman but-
tressed his argument for imposition of the death penalty by
reading to the jury selected biblical passages”); Lenz v. War-
den of the Sussex I State Prison, 593 S.E.2d 292, 298-99 (Va.
2004) (analyzing defendant’s claim that a Bible was present
in the jury room pursuant to the Supreme Court’s test for
improper extraneous jury contacts).7 Although several of these
cases involve the presence of a complete copy of the Bible in
the jury room, making only certain portions available exacer-
bates, rather than ameliorates, the problem presented by the
introduction of Biblical writings during jury deliberations.
Here, for example, the selection leaves out Biblical passages
that can be read as condemning the death penalty or as con-
doning mercy in some instances. See Dissent of Gould, J. at
11994-95 n.2.

   Unable to rely on case law, the majority suggests that
White’s conduct was not misconduct because the notes “are
notions of general currency that inform the moral judgment
that capital-case jurors are called upon to make.” Maj. op. at
11983. Initially, I note that the majority’s observation would
likely be challenged by tens of millions of Americans who
view the Bible not as a collection of “notions” about moral
principles, but as a repository of hard-and-fast imperatives
that must direct daily life. See Robinson v. Polk, 438 F.3d
350, 374 (4th Cir.) (King, J., dissenting) (“[T]he majority
ignores the fact that the Bible is an authoritative code of
morality — and even law — to a sizable segment of our popu-
lation.”), cert. denied 127 S. Ct. 514 (2006). White’s notes
were therefore significant for their factual representation that
the Bible contained such statements, apart from the moral phi-
losophy that the statements themselves expressed.
  7
    The Fourth Circuit has held that a state trial court did not contravene
clearly established Supreme Court case law by refusing to consider a
claim that jurors engaged in misconduct by reading from a Bible during
deliberations. Robinson v. Polk, 438 F.3d 350, 363-64 (4th Cir.), cert.
denied, 127 S. Ct. 514 (2006). The court noted, however, that “our answer
could possibly be different on de novo review.” Id. at 363.
                        FIELDS v. BROWN                    12013
   In any case, I fail to understand why a distinction between
extrinsic statements of general moral currency and other
extrinsic materials has a legal bearing on this case. Although
the majority suggests that the distinction is significant in this
case because the jury in a capital trial is assigned the task of
making a moral judgment, as I have explained, the absolute
nature of Biblical materials introduced by White contravened
the permitted role of moral considerations and instead vio-
lated the principle that capital sentencing must be individual-
ized. Moreover, the moral nature of death penalty judgments
does not allow religious considerations to be a proper matter
for deliberations, rather than a factor jurors can privately con-
template in the course of undertaking their awesome responsi-
bility. See Robinson, 444 F.3d at 227 (Wilkinson, J.,
concurring in the denial of rehearing en banc) (“There is a dif-
ference between a juror bringing a Bible into the jury room
for personal strength and support and the jury as a whole
reading and debating the biblical text as the basis for a life
and death decision. Such a debate is constitutionally problem-
atic. . . . If the presence of a Bible in the jury room drives the
collective discussion, and renders a capital sentence the result
of religious command, then in my view, an important line has
been crossed.”).

   The majority also suggests that all the courts that have held
consulting the Bible to be impermissible reliance on extrinsic
material are wrong because the Biblical quotations White
looked up, copied, and brought into the jury room were sim-
ply “general, commonly known points in favor of the death
penalty,” and “[i]t is difficult to see how sharing notes can be
constitutionally infirm if sharing memory isn’t.” Maj. op. at
11983-84. But this suggested equivalence disregards the care-
ful balance between the various precepts regarding jury delib-
erations I discussed at the outset. In fact, as Morgan makes
clear, a juror who voted for the death penalty on the basis of
the absolutist position sanctioned by the Biblical quotations
White placed before his fellow jurors would violate his oath
to follow California law. For quite separate reasons — princi-
12014                  FIELDS v. BROWN
pally, preservation of the privacy of jury deliberations and of
the finality of jury verdicts — we would not allow inquiry
into why any individual juror voted for the death penalty, or
into statements made to others regarding why they should do
the same. But that forbearance serves an independent interest;
it does not sanction the disregard of the instructions.

   There is a second reason why this case is not similar to
ones involving a juror introducing an argument into delibera-
tions based on his personal knowledge. In such cases, we have
held that no misconduct occurred. See Rodriguez v. Marshall,
125 F.3d 739, 745 (9th Cir. 1997) (juror discussed difficulty
he had “discerning and recalling objects while driving at free-
way speeds”); McDowell v. Calderon, 107 F.3d 1351, 1367
(9th Cir.) (juror argued during deliberations that “a sentence
of life without parole . . . wouldn’t mean ‘without parole’ ”),
vacated en banc in other parts, 130 F.3d 833 (9th Cir. 1997);
Hard v. Burlington N. R.R. Co., 870 F.2d 1454, 1462 (9th Cir.
1989) (juror made arguments during deliberations based on
his prior military experience interpreting x-rays). But these
cases are based on the proposition that “the general knowl-
edge, opinions, feelings, and bias that every juror carries into
the jury room” are properly considered during deliberations.
Hard, 870 F.2d at 1461 (emphasis added); see also United
States v. Navarro-Garcia, 926 F.2d 818, 821 (9th Cir. 1991)
(“[A] juror’s past personal experiences may be an appropriate
part of the jury’s deliberations.” (emphasis added)). As I have
noted, the success of the jury system rests in large part on the
coming together of these variations in background, percep-
tion, and point of view.

   In this case, however, it 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 deci-
sion made on the basis of what went on in the courtroom, fil-
                       FIELDS v. BROWN                   12015
tered 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 author-
ity quite different from a paraphrase or one line quotations
spoken from memory, not least because they could be con-
sulted repeatedly and outside of White’s immediate presence.
The written, lengthy quotations introduced tangibly an exter-
nal 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 simi-
lar to “sharing memory,” and this case does not raise the ques-
tion of whether jurors act impermissibly by referring to their
faith during deliberations. See Maj. op. at 11983-84.

                              B.

   Ultimately, however, the majority equivocates about
whether White engaged in misconduct, but holds that his
actions did not prejudice Fields. In so doing, the majority
ignores the indications deemed relevant by our established
case law, and fails to appreciate the unique issues involved in
examining an extrinsic information claim in the context of an
attack on a jury verdict.

   1. The district court determined that White’s misconduct
did prejudice Fields. Before so concluding, the court made
critical factual findings concerning the introduction of the
Biblical material into the jury room: The district court found
that the introduction came at a time when the jury was divided
on the proper sentence.

    [T]he jurors considered and discussed the Biblical
    references in their deliberations. Juror Henry stated
    that,
12016                   FIELDS v. BROWN
          the foreman brought to the deliberations
          pages of notes of citations from the Bible
          and other religious sources which he felt
          supported capital punishment. These notes
          were passed around to and discussed by the
          jury. It was only after we reviewed and dis-
          cussed the notes that an unanimous decision
          in favor of death was reached.

    Juror Hilliard stated that, “[t]he jury foreman pres-
    ented to us, and we discussed, information which he
    had brought from home, including excerpts from the
    Bible and definitions. It was after these discussions
    that we were able to reach a unanimous verdict in
    favor of recommending the imposition of the death
    penalty.” Juror White stated that he “brought the
    notes to the penalty phase jury deliberations and the
    contents of these notes were discussed during our
    deliberations.”

       Respondent has submitted declarations from sev-
    eral jurors in which they stated that they did not
    recall any discussion of the Bible or dictionary defi-
    nitions. However, the declarations submitted by
    respondent confirm the Court’s finding that Biblical
    references were provided by Juror White and dis-
    cussed by the jury.

    ...

       . . . [I]n this case, there is evidence that a majority
    of the jurors favored a verdict of life without the pos-
    sibility of parole until the jury discussed the Biblical
    references.

Fields v. Calderon, slip op. at 13-14, 16-17 (second alteration
in original) (citations omitted).
                            FIELDS v. BROWN                          12017
   The district court quite properly considered the jurors’
statements that the jury was undecided at the time the Biblical
material was brought into the jury room and that unanimity
came only after that point. Under Rule 606(b) of the Federal
Rules of Evidence, federal courts can consider “juror testi-
mony about the consideration of extrinsic evidence” but can-
not consider testimony “about the subjective effect of
evidence on the particular juror.” Sassounian v. Roe, 230 F.3d
1097, 1108 (9th Cir. 2000). Here, the district court did not
find that the discussion of the Biblical material was the reason
that jurors changed their vote, but merely that vote changes
occurred, and when. We have previously found it proper to
consider the timing of shifts in jury votes relative to the intro-
duction of extrinsic evidence. See id. at 1110; Marino, 812
F.2d at 505 & n.8; see also Mattox v. United States, 146 U.S.
140, 147-51 (1892) (holding, after examining the common
law restrictions against impeaching verdicts through juror tes-
timony, that the defendant should receive a new trial based on
jury misconduct because admissible evidence demonstrated
that “[t]he jury in the case before us retired to consider of
their verdict on the 7th of October, and had not agreed on the
morning of the 8th, when the newspaper article was read to
them”).8

   Moreover, that White thought it necessary to bring the Bib-
lical material into the jury room after an initial session of
deliberations strongly suggests that the material could have
had an impact on the jury. Presumably, White felt that review-
ing the material at home had affected his analysis and thought
it might have a similar impact on others if brought into the
jury room. Why 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? See Gibson, 633 F.2d at 855
(“[T]he fact that at least two jurors believed that it was neces-
sary to obtain more evidence is, by itself, an indication that
  8
   The majority finds no fault with the district court’s application of Rule
606(b). See Maj. op. at 11979.
12018                  FIELDS v. BROWN
there may have been a need to resolve some lingering hesita-
tion or uncertainty.”).

   Also, quite aside from the time and manner in which this
extrinsic information was introduced, its content had a clear
potential to affect deliberations. We have previously observed
that one of the Bible passage reprinted verbatim in White’s
notes — Romans 13:1-5 — is “commonly understood as pro-
viding justification for the imposition of the death penalty,”
and its invocation during the sentencing phase of a capital
trial “cloak[s] the State with God’s authority.” Sandoval, 241
F.3d at 775, 779. We held in Sandoval that a prosecutor’s
allusion to that passage, in concert with other religious refer-
ences, prejudiced a defendant’s right to be sentenced accord-
ing to the statutory scheme for imposing the death penalty. Id.
at 778-80. Sandoval explicitly noted that the record did not
disclose whether the jury actually considered the prosecutor’s
Biblical argument, but it nonetheless held that “we cannot
assume that the prosecutor’s religious argument did not per-
suade at least one of the jurors to change a vote for life to
death.” Id. at 779.

   Notwithstanding the majority’s attempt to frame a prosecu-
tor’s invocation of the Bible as more damaging than its actual
entry into the jury room, Maj. op. at 11984, our case law and
common sense dictate the opposite conclusion: A fellow
juror’s introduction of such material into the jury room has an
even greater potential for a prejudicial effect, because the
defendant is unable to mitigate the jury’s consideration of the
Bible as he can when the prosecutor brings it into the trial —
for example, by tailoring his closing argument to account for
the religious arguments or by insuring that the judge instructs
the jury to consider only the relevant statutory factors. See
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
                        FIELDS v. BROWN                    12019
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.”). Moreover, we do not know whether any juror in
Sandoval paid any attention to the prosecutor’s Biblical refer-
ences. But we do know that at least one juror in this case —
White — was sufficiently concerned about what the Bible
said about the death penalty to spend time copying out
lengthy quotations and that other jurors reviewed the pas-
sages. So we have here direct evidence of an impact on the
jury deliberations that was lacking in Sandoval.

   Other courts have also recognized the specially prejudicial
nature of a jury’s consideration of Biblical material. One fed-
eral district court has held that a jury’s consultation of a Bible
during penalty phase deliberations “may be highly prejudicial
to the defendant” because it represents “a source which
‘would likely carry weight with laymen and influence their
decision.’ ” Jones, 706 F. Supp. at 1560 (quoting Wilson v.
Kemp, 777 F.2d 621, 626 (11th Cir. 1985)). Likewise, Colora-
do’s Supreme Court has found prejudice from the introduction
of the Bible into deliberations: “[A]t least one juror in this
case could have been influenced by these authoritative pas-
sages to vote for the death penalty when he or she may other-
wise have voted for a life sentence” because “[t]he Bible and
other religious documents are considered codes of law by
many in the contemporary communities from which . . . jurors
are drawn.” Harlan, 109 P.3d at 630-31.

   2. Given the nature of the extrinsic information involved
in this case and the manner in which it was received by the
jury, the majority’s reversal of the district court on no-
prejudice grounds is inexplicable. In so ruling, the majority
determines that the notes had “no substantial and injurious
effect or influence in determining the jury’s verdict” and
holds this lack of impact precludes habeas relief pursuant to
Brecht v. Abrahamson, 507 U.S. 619 (1993). Maj. op. at
11984.
12020                  FIELDS v. BROWN
   The Supreme Court’s requirement in Brecht that habeas
relief be granted only when an error has a “substantial and
injurious effect” was derived from the harmless-error standard
enunciated in Kotteakos v. United States, 328 U.S. 750
(1946). 507 U.S. at 623. Kotteakos explains our task in con-
ducting this variety of harmless-error review:

    If, when all is said and done, the [court’s] conviction
    is sure that the error did not influence the jury, or
    had but very slight effect, the verdict and the judg-
    ment should stand . . . . But if one cannot say, with
    fair assurance, after pondering all that happened
    without stripping the erroneous action from the
    whole, that the judgment was not substantially
    swayed by the error, it is impossible to conclude that
    substantial rights were not affected. The inquiry can-
    not be merely whether there was enough to support
    the result, apart from the phase affected by the error.
    It is rather, even so, whether the error itself had sub-
    stantial influence. If so, or if one is left in grave
    doubt, the conviction cannot stand.

328 U.S. at 764-65; see also Payton v. Woodford, 346 F.3d
1204, 1218 (9th Cir. 2003) (en banc) (explaining that our
Brecht inquiry must reflect the “greater need for reliability”
in the death penalty context (quoting Coleman v. Calderon,
210 F.3d 1047, 1050 (9th Cir. 2000)) (internal quotation
marks omitted)), rev’d on other grounds sub nom. Brown v.
Payton, 544 U.S. 133 (2005). Where the contention is that the
jury improperly considered extrinsic information, this Brecht
inquiry must focus upon the extrinsic material’s impact on
any juror, because “even a single juror’s improperly influ-
enced vote deprives the defendant of an unprejudiced, unani-
mous verdict.” Lawson v. Borg, 60 F.3d 608, 613 (9th Cir.
1995); see also Sassounian, 230 F.3d at 1110.

   This circuit for more than two decades has relied on a five-
factor test to determine in the habeas context whether extrin-
                        FIELDS v. BROWN                    12021
sic information is prejudicial. That test requires us to con-
sider:

    (1) whether the material was actually received, and
    if so, how; (2) the length of time it was available to
    the jury; (3) the extent to which the jury discussed
    and considered it; (4) whether the extrinsic material
    was introduced before a verdict was reached, and if
    so, at what point in the deliberations it was intro-
    duced; and (5) any other matters which may bear on
    the issue . . . .

Bayramoglu v. Estelle, 806 F.2d 880, 887 (9th Cir. 1986) (cit-
ing Paz v. United States, 462 F.2d 740, 746 (5th Cir. 1972)).
I, like the district court, would hold that all of these factors
point toward the prejudicial nature of White’s notes.

   First, there is no dispute that the material was actually
received by the jury when its foreperson brought the notes
into deliberations. Second, the notes entered the jury room at
the start of the second day of deliberations, which meant the
jury considered the Biblical material during the majority of
the time it considered Fields’s sentence — four-and-one-half
of the six-and-one-half hours of deliberations. Third, the notes
were available to all members of the jury, and several mem-
bers of the jury submitted affidavits attesting to their presence
in the jury room. Fourth, the material entered the jury room
during the pivotal period when the sentence was far from set-
tled. Fifth, “the extrinsic information directly related to a
material issue in the case” — the proper sentence. Lawson, 60
F.3d at 612; see also Marino, 812 F.2d at 506 (“[R]eversible
error commonly occurs where there is a direct and rational
connection between the extrinsic material and a prejudicial
jury conclusion, and where the misconduct relates directly to
a material aspect of the case.”).

   Moreover, only one of the factors we identified in Jeffries
v. Wood, 114 F.3d 1484 (9th Cir. 1997) (en banc), as poten-
12022                   FIELDS v. BROWN
tially diminishing the prejudice created by the jury’s consider-
ation of extrinsic information is even arguably present in this
case. Those factors are

    whether the prejudicial statement was ambiguously
    phrased; whether the extraneous information was
    otherwise admissible or merely cumulative of other
    evidence adduced at trial; whether a curative instruc-
    tion was given or some other step taken to amelio-
    rate the prejudice; the trial context; and whether the
    statement was insufficiently prejudicial given the
    issues and evidence in the case.

Id. at 1491-92 (footnotes omitted).

   The majority, in determining that the extrinsic material here
does not meet the Brecht prejudice standard, judges the preju-
dicial nature of White’s misconduct based on a set of factors
it creates largely from thin air: the fact that White’s notes also
contained material helpful to Fields; the fact that the extrinsic
material was introduced early in the deliberations; the fact
that the jury was instructed to base its determinations on the
law; and the fact that the aggravating evidence against Fields
was powerful. Maj. op. at 11984-85. These reasons, with one
exception, have no basis in our case law and are, moreover,
not pertinent to the prejudice inquiry.

   Far from providing “fair assurance” about the harmlessness
of the jury misconduct, the majority’s first three factors pro-
vide no reason to doubt that the Biblical material affected
deliberations. The majority’s first factor, the balance of
White’s notes, ignores the record: As the district court found,
“all of the Biblical references supported the imposition of the
ultimate penalty” and “did not include . . . Biblical references
supporting the concepts of forgiveness and mercy.” Fields v.
Calderon, slip op. at 16. So the effect of the Biblical material
was exclusively in favor of capital punishment. White’s
“against” notes were much shorter, were not quotations at all
                        FIELDS v. BROWN                    12023
— let alone lengthy Biblical quotations — and reflected no
external research.

   The majority’s second factor, the early introduction of the
Biblical materials into deliberations, actually made the mis-
conduct worse, because the jury engaged in very little deliber-
ation unaffected by the religious considerations. See Lawson,
60 F.3d at 613 (finding “the early stage at which the extrinsic
information was introduced” was one factor dictating that “the
juror misconduct substantially and injuriously influenced the
verdict”). The majority’s third factor, our normal presumption
that jurors follow instructions, is inapposite when the jury’s
very decision to consider the extrinsic evidence conclusively
demonstrates that it did not follow the instruction to rely only
on the law as stated by the judge. Also, this factor would ren-
der all jury misconduct concerning extrinsic material harm-
less, because jurors are uniformly instructed to rely on the
facts and on legally proper considerations.

  Ultimately, the only potentially relevant factor cited by the
majority for its prejudice analysis is the presence of powerful
aggravating evidence in this case. Certainly, the murder
charged in this case was extremely brutal and was alleged to
have occurred during the course of an extensive violent crime
spree. Based on such evidence, I have no doubt that a jury
could have determined death was the proper punishment for
Fields after properly applying California’s prescribed weigh-
ing system.

   Under Brecht, however, “[t]he inquiry cannot be merely
whether there was enough to support the result, apart from the
phase affected by the error. It is rather, even so, whether the
error itself had substantial influence.” Kotteakos, 328 U.S. at
765. The manner in which the jury considered the extrinsic
Biblical material in this case, as well as its inherently prejudi-
cial nature, demonstrates that the error did substantially influ-
ence this jury and that Fields has a right to be resentenced by
a jury not so influenced. The California Supreme Court’s
12024                       FIELDS v. BROWN
analysis of how a hypothetical jury would have responded to
alternate defense strategies, the basis for the prejudice analy-
sis that the majority opinion quotes at length, is not instruc-
tive.

   3. Not only is the majority’s Brecht analysis flawed as
applied to this specific case, but it ignores the special nature
of claims involving jury misconduct. On direct review of fed-
eral criminal cases, after a defendant has demonstrated that
the jury considered extrinsic evidence, we readily find preju-
dice absent specific evidence that there was no prejudice. See
Rosenthal, 454 F.3d at 949 (“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) (quoting Sea Hawk Seafoods,
Inc. v. Alyeska Pipeline Serv. Co., 206 F.3d 900, 906 (9th Cir.
2000))). This view of prejudice arises from the Supreme
Court’s presumption of prejudice in Mattox and in Remmer v.
United States, 347 U.S. 227 (1954), when jurors communicate
with third parties. See United States v. Martinez, 14 F.3d 543,
550 (11th Cir. 1994) (citing Remmer, 347 U.S. at 229; Mat-
tox, 146 U.S. at 150).9
   9
     This court has previously refused to apply a “strong[ ] presumption” of
prejudice to an extrinsic information claim presented in a habeas case and
instead specified that the standard Brecht analysis applies. Thompson, 74
F.3d at 1575 & n.1; see also Pyles v. Johnson, 136 F.3d 986, 992-93 (5th
Cir. 1998) (rejecting that Mattox/Remmer, rather than Brecht, provides the
correct standard to judge the prejudice of an extrinsic information claim
on habeas review); Bibbins v. Dalsheim, 21 F.3d 13, 16 (2d Cir. 1994) (per
curiam) (same). I believe, however, that a presumption of prejudice may
properly apply to an extrinsic information claim even under Brecht. See
Thompson, 74 F.3d at 1577-82 (Reinhardt, J., dissenting); see also
McNair, 416 F.3d at 1307 (applying the presumption to an extrinsic infor-
mation claim presented in a habeas case: “the State bears the burden of
rebutting the presumption by showing that the jurors’ consideration of the
extrinsic evidence was harmless to the defendant”). Moreover, Thompson
                            FIELDS v. BROWN                         12025
   Even without applying a legal presumption, finding preju-
dice in cases where a defendant has proved that the jury
received extrinsic information somewhat more readily than
one might in other instances is quite sensible, both on direct
review and in habeas. Rule 606(b) of the Federal Rules of
Evidence makes it uniquely difficult to prove that extrinsic
evidence had an actual effect on jurors. That rule prohibits
jurors from testifying “about the subjective effect of [extrin-
sic] evidence on the particular juror.” Sassounian, 230 F.3d at
1108. So a court will never have admissible evidence directly
linking extrinsic materials with a juror’s final vote, see United
States v. Rutherford, 371 F.3d 634, 644 (9th Cir. 2004)
(explaining that under Rule 606(b) “a juror cannot testify to
whether an outside influence caused him to change his vote
from innocent to guilty”). As the Eighth Circuit has observed
in explaining the Mattox/Remmer presumption:

     Because Rule 606(b) precludes the district court
     from investigating the subjective effects of any
     extrinsic material on the jurors, whether such effects
     might be shown to affirm or negate the conclusion of
     actual prejudice, a presumption of prejudice is cre-
     ated and the burden is on the government to prove
     harmlessness.

United States v. Bassler, 651 F.2d 600, 603 (8th Cir. 1981).

  The test we adopted in Bayramoglu for determining
whether the jury’s consideration of extrinsic information is
prejudicial has effectively served as our means of mediating

is in some tension with our application of the Mattox presumption, by
requiring the government to “show[ ] that there was no reasonable possi-
bility that the [error] influenced the verdict,” in a habeas case involving
communication between a juror and a third party. Caliendo v. Warden of
Cal. Men’s Colony, 365 F.3d 691, 698 (9th Cir. 2004). Nevertheless, I will
assume that the Mattox/Remmer presumption does not apply on habeas
review of extrinsic information claims.
12026                  FIELDS v. BROWN
between the right to secrecy and finality under Rule 606(b)
and a habeas petitioner’s constitutional right to a jury
untainted by extrinsic evidence. See Sassounian, 230 F.3d at
1109 (noting Rule 606(b) requires the court “to ignore the
most direct evidence of prejudice . . . lend[ing] an ‘Alice in
Wonderland quality to the discussion of whether [the defen-
dant] was actually prejudiced by the admitted jury miscon-
duct,’ ” but holding that the Bayramoglu factors led to a
determination that the defendant’s rights were violated not-
withstanding the Rule 606(b) limitation (quoting People v.
Sassounian, 182 Cal. App. 3d 361, 419 (1986) (Johnson, J.,
dissenting))); United States v. Castello, 526 F. Supp. 847,
849-50 (W.D. Tex. 1981) (“The rule is well established that
a jury may not impeach its own verdict. The Court is not at
liberty to investigate ‘the subjective effects of any breach on
any jurors, whether such effects might be shown to affirm or
negate the conclusion of actual prejudice.’ Instead, the Court
must conduct an inquiry into the prejudicial potential of extra-
neous material on the average juror. Objective facts, there-
fore, become the focus of the inquiry.” (quoting Simon v.
Kuhlman, 488 F. Supp. 59, 68 (S.D.N.Y. 1979)) (citations
omitted)), cited in Bayramoglu, 806 F.2d at 887. The majori-
ty’s decision not to apply this test in conducting its Brecht
analysis upsets our settled balance for determining whether
“even a single juror’s” vote was “improperly influenced” —
the relevant constitutional question, Lawson, 60 F.3d at 613
— when courts are prohibited from directly finding out from
jurors the effect of extrinsic information on their deliberative
process.

                        *      *     *

   In sum, I have no doubt that White engaged in unconstitu-
tional misconduct by injecting his overnight Biblical research
into the deliberations, and I am convinced, taking into account
the manner in which the material came before the jury, its
nature, and our usual test for determining prejudice arising
from extrinsic material, that this conduct substantially influ-
                            FIELDS v. BROWN                          12027
enced the jury’s penalty phase deliberations. Fields was
deprived of his right to have his fate decided by jurors who
applied only the applicable legal standards, rather than con-
flicting standards derived from scripture.10

                                    III.

   Fields was not only denied his right to an impartial jury
applying the correct law, as the district court found. In addi-
tion, the presence of an individual on the jury who, objec-
tively speaking, was not “impartial and indifferent,” violated
Fields’s constitutional rights even before the jury considered
the Biblical material during its penalty-phase deliberations.
See Morgan, 504 U.S. at 727.

   The wife of juror Floyd Hilliard had been the victim of an
unsolved crime, with details quite similar to the allegations
against Fields. The extreme distress generated by the attack
— stoked by the fear that the unknown perpetrator would
return — was still affecting the family at the time of the trial.
Moreover, during the trial Floyd Hilliard was faced with
repeated suggestions from his wife that Fields was her rapist,
and had to respond nightly to her requests to attend the trial
to confirm her suspicions.

   Any of these circumstances, independently, would likely
place unusual and unpredictable strains on Floyd Hilliard’s
objectivity. Their combination presents the “extraordinary
case[ ], [in which] courts may presume bias based on the cir-
  10
     Because the jury misconduct renders Fields’s death sentence unconsti-
tutional, it is unnecessary to consider whether he received ineffective
assistance of counsel during the penalty phase of the trial. I note, however,
that his lawyer’s blatant deficiencies in investigating his life history and
in preparing a mitigation case for the penalty phase of the trial — which
“fell below minimum standards” according to the evidentiary referee
appointed by the California Supreme Court, 51 Cal. 3d 1063, 1068 (1990)
(internal quotation marks omitted) — make the majority’s reliance on the
weight of the aggravating evidence quite troubling.
12028                   FIELDS v. BROWN
cumstances.” Dyer v. Calderon, 151 F.3d 970, 981 (9th Cir.
1998) (en banc). Because the strain from the combination of
these facts was far too likely to affect Floyd Hilliard’s deliber-
ative process whether he so recognized or not, his presence on
the jury violated Fields’s constitutional rights.

                               A.

   Two-and-one-half years before Floyd Hilliard was called
for jury duty, his wife Diane Hilliard, driving home from a
Christmas party, had been abducted at gunpoint by a man who
rammed her car while it was idling at a traffic light. The
assailant forced Diane Hilliard into his car, drove her to a
remote location, and pistol-whipped, robbed, and raped her.
He then told her, “well, bitch, I’m going to have to shoot you
now.” His plan, however, was interrupted by a local resident
who noticed the suspicious car and came out to investigate.
Diane Hilliard recounted that the attacker “threatened to come
back to finish me off” before fleeing — a quite plausible
threat because he had stolen her purse that contained her
home address. When Floyd Hilliard arrived at the hospital
after the attack, he found his wife disheveled and in a state of
shock, nursing a broken nose, head lacerations, and a black
eye. According to his wife, Floyd Hilliard was “shaken,”
“upset,” “shocked,” and “angry” upon seeing her injured
state. More than twenty-five years later, Diane Hilliard had no
hesitation in calling the attack “the most horrifying experience
in my life.”

   According to Diane Hilliard, the crime “radically changed”
both her and her husband’s life, in part because the perpetra-
tor was never caught. In a 2003 deposition, she confirmed that
“[f]or a long time after the attack[,] I lived in terror that he
was out there” and feared “that he would come to make good
on his threat.” Floyd Hilliard also confirmed in a 2003 deposi-
tion that the attack was “a very, very upsetting event.” Fol-
lowing the attack, Diane Hilliard began carrying a handgun in
her purse, and continued to do so during the time of Fields’s
                        FIELDS v. BROWN                    12029
trial. And, mirroring his wife’s fear, Floyd Hilliard for the
first couple of weeks after the attack frequently sat by the
window of his house with a shotgun, watching for the rapist’s
return. Floyd Hilliard testified that if the attacked “had come
back, I had something for him. . . . If he made unauthorized
entry, enter at your own risk.” Diane Hilliard testified that her
fear began to subside only when the family moved to a new
home, several years after Fields’s trial.

   The allegations against Fields included many of the same
crimes — rape, kidnapping, robbery, assault — as those suf-
fered by Diane Hilliard at the hands of a perpetrator still on
the loose. Moreover, the details and modus operandi of those
crimes had substantial similarities. Diane Hilliard was
attacked by a slender African American male in his twenties,
which matched the physical description of Fields. She was
abducted while driving through a neighborhood only ten min-
utes away from Fields’s house and the area where his crimes
occurred. Adding to the similarities, Fields was charged with
forcing his victims to enter his car at gunpoint, which was
similar to the actions of the person who abducted Diane Hil-
liard. This court recognized that “Hilliard’s wife was the vic-
tim of a crime that was quite similar to the charges against
Fields” when previously remanding this case for an evidenti-
ary hearing. 309 F.3d 1095, 1105 (9th Cir. 2002).

   As the district court’s findings on remand demonstrate,
Floyd Hilliard and his wife were far from oblivious to the
similarity of the crimes at the time of Fields’s trial. When
informed of the charges involved in the case at the beginning
of jury selection, Floyd Hilliard doubted that he would be
selected as a juror because of his wife’s parallel experience.
In response to voir dire questioning about whether any close
family members had been victims of a crime, Floyd Hilliard
disclosed that his wife was “assaulted and beaten, robbed, two
years ago.” The district court found that “he did not mention
in voir dire that his wife had been raped or kidnaped” because
he “did not want to be more explicit in open court than he was
12030                   FIELDS v. BROWN
about what happened to his wife” and “thought the court and
parties would understand that his use of the word ‘assault’ in
the context he did would encompass a sexual assault.” Fields
v. Woodford, No. CV 92-0465 DT, slip op. at 44 (C.D. Cal.
July 30, 2003). In other words, while the district court found
Floyd Hilliard was not dishonest in his answer to the voir dire
question, the emotional nature of the crime did consciously
influence his answers, making him less forthcoming than he
might otherwise have been.

   After Floyd Hilliard was selected as a juror, his wife
repeatedly suggested to him that Fields might be her rapist. In
her deposition, Diane Hilliard recounted thinking that “there
was a pretty good possibility” that Fields was responsible for
her attack. Accordingly, she “begged” each night for his per-
mission to attend the trial in order to see if Fields was her rap-
ist. Floyd Hilliard, however, refused these repeated requests.
He did, however, himself think during the trial about how the
testimony “sound[ed] like what happened to my wife.”

   The district court found that although Floyd Hilliard did not
believe Fields was his wife’s abductor because Fields’s
modus operandi had some differences from the details of her
attack, he did not want her “to come to the trial because he
did not want her to compromise him as a juror and he did not
want the psychological trauma to affect their home life. . . .
Mr. Hilliard was concerned his wife would be traumatized by
the testimony and that it would create family problems.” Id.
at 31. In his deposition, Floyd Hilliard also explained that he
refused his wife’s request because “suppose indeed, in fact,
she did ID him as the perpetrator . . . then that would invali-
date me as a objective juror.” He recognized such a develop-
ment would have required him to disqualify himself as a juror
and would have compromised the ongoing trial.
                            FIELDS v. BROWN                          12031
                                    B.

   Most jury bias claims — “actual bias” — must be founded
on evidence that a juror “was disposed to cast a vote against”
the defendant. Dyer, 151 F.3d at 981. But “[i]n extraordinary
cases, courts may presume bias based on the circumstances.”
Id. In such cases, the doctrine of “implied bias”11 disqualifies
the affected individual from serving on the jury, and dictates
that any defendant whose fate was decided by such a juror has
been denied his constitutional right to a fair trial by a panel
of “impartial and indifferent” jurors. Morgan, 504 U.S. at
727.

   The doctrine of implied bias is premised largely on the
understanding that certain circumstances create too great a
risk of affecting a juror’s decisionmaking process, even if the
juror is not, consciously, fully aware of the impact. The
Supreme Court focused on this rationale in explaining why
implied bias has traditionally disqualified individuals who had
employment relationships with the parties from jury service:

       Bias or prejudice is such an elusive condition of the
       mind that it is most difficult, if not impossible, to
       always recognize its existence, and it might exist in
       the mind of one (on account of his relations with one
       of the parties) who was quite positive that he had no
       bias, and said that he was perfectly able to decide the
       question wholly uninfluenced by anything but the
       evidence. The law therefore most wisely says that
       with regard to some of the relations which may exist
       between the juror and one of the parties, bias is
  11
     I use the “implied bias” nomenclature because it is the term used in
the applicable case law. I note, however, that the term somewhat mislead-
ingly suggests that the doctrine rests on the implication of “actual bias” —
that is, conscious prejudice or prejudgment — as a matter of law from cer-
tain facts. As I explain below, the doctrine actually focuses on a different
kind of effect on the deliberative process.
12032                    FIELDS v. BROWN
    implied, and evidence of its actual existence need
    not be given.

Crawford v. United States, 212 U.S. 183, 196 (1909); see also
Smith v. Phillips, 455 U.S. 209, 221-22 (1982) (O’Connor, J.,
concurring) (“Determining whether a juror is biased or has
prejudged a case is difficult, partly because the juror may
have an interest in concealing his own bias and partly because
the juror may be unaware of it.” (emphasis added)). In this
respect, the implied bias doctrine applied to jurors parallels
conflict-of-interest rules that apply to lawyers and judges. See
Dyer, 151 F.3d at 983 n.22. Those rules “ban[ ] lawyers and
judges from taking on cases in certain conflict situations even
if they are certain that the objective conflict will have no
influence on them and are prepared to take every precaution
to preclude such influence,” because “[h]uman self-perception
regarding one’s own motives for particular actions in difficult
circumstances is too faulty to be relied upon, even if the indi-
vidual reporting is telling the truth as he perceives it.” United
States v. Shwayder, 312 F.3d 1109, 1119 (9th Cir. 2002).
Floyd Hilliard’s own deposition attests to the wisdom of
applying a similar rule to jurors: In explaining why he
responded only “I doubt it,” rather than more definitively, to
a voir dire question about whether it would be difficult for
him to be an impartial juror, he noted “you can never be sure
what’s in the back of your mind.”

   Accordingly, the implied bias doctrine applies in circum-
stances where a juror “introduces . . . [an] unpredictable factor
into the jury room” or “introduces destructive uncertainties
into the [factfinding] process.” Dyer, 151 F.3d at 982-83. In
such cases, we do not consider the actual bias question of
“whether [the juror] was disposed to cast a vote against [the
defendant].” Id. at 981. It would not matter if the juror is
found to have no actual bias against the defendant, because
his “substantial emotional involvement” with some aspect of
the case creates too great a risk of altering the jury’s delibera-
tions despite the juror’s conviction that it will (or did) not. See
                           FIELDS v. BROWN                         12033
Allsup, 566 F.2d at 71 (holding that implied bias applied to
two bank tellers in a trial concerning the robbery of another
branch of the bank for which they worked); see also United
States v. Wood, 299 U.S. 123, 134 (1936) (describing implied
bias as “a bias attributable in law to the prospective juror
regardless of actual partiality”). As Judge Kozinski cogently
observed on behalf of an en banc court:

       Of course, a juror could be a witness or even a vic-
       tim of the crime, perhaps a relative of one of the law-
       yers 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
       because 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 judg-
       ment, 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 permit-
       ting such a juror to serve would introduce into the
       jury room an extraneous influence that could materi-
       ally color the deliberations.

Dyer, 151 F.3d at 982. In other words, the implied bias doc-
trine exists principally to disqualify jurors who have an excess
probability of being influenced in their deliberations by an
extraneous consideration, despite their good faith belief that
they can avoid doing so. It is not directed primarily at uncov-
ering jurors hiding their conscious bias, although in some
cases of implied bias that may be so.12
  12
    There also may be jurors who do have thoughts during deliberations
that reflect the relationship to the facts of the case that gives rise to
implied bias, but suppress the memory of their actual deliberative process
sufficiently that, after the trial, they swear up and down — and believe —
that there was no actual bias whatever. The implied bias doctrine ferrets
out jurors affected by that psychological phenomenon as well.
12034                       FIELDS v. BROWN
   We have identified certain “general fact situations where
bias might be presumed or implied.” Coughlin v. Tailhook
Ass’n, 112 F.3d 1052, 1062 (9th Cir. 1997). One of those situ-
ations is “where a juror or his close relatives have been per-
sonally involved in a situation involving a similar fact
pattern.” Tinsley, 895 F.2d at 528 (emphasis added). Our
inquiry, however, must be specifically tailored to the facts
alleged to create implied bias, because we must “hesitate
before formulating categories of relationships which bar
jurors from serving.” Id. at 527.

   In conducting this specifically tailored analysis, we must
determine the effect on “an average person in the position of
the juror in controversy,” because “the implied bias standard
is essentially an objective one.” United States v. Gonzalez,
214 F.3d 1109, 1112-13 (9th Cir. 2000) (emphases omitted)
(quoting United States v. Cerrato-Reyes, 176 F.3d 1253,
1260-61 (10th Cir. 1999)).13 So, in evaluating whether the
implied bias doctrine applies, we disregard a juror’s claims
that he was not affected by his connection to the case. Id. at
1113. We do so because an underpinning of the implied bias
doctrine is the recognition that the juror will often be unable
to see for himself the effects of the connection. As Dyer
observed, “[a juror] 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.” 151 F.3d at
984 (quoting United States v. Burr, 25 F. Cas. 49, 50 (C.C.D.
Va. 1807) (No. 14,692g) (Marshall, J.)) (internal quotation
marks omitted). This lack of trust, I emphasize once more, is
not an unrebuttable presumption of dishonesty — or of lack
of good faith — but, instead, a practical recognition of the
complexities of human mental processes.
  13
     In addition to the Tenth Circuit’s decision in Cerrato-Reyes, upon
which our holding in Gonzalez relies, three other circuits have specified
that implied bias analysis is concerned with the objective effect of the fact
situation on an “average person.” Johnson v. Luoma, 425 F.3d 318, 326
(6th Cir. 2005), cert. denied, 127 S. Ct. 58 (2006); United States v. Torres,
128 F.3d 38, 45 (2d Cir. 1997); Person, 854 F.2d at 664.
                       FIELDS v. BROWN                   12035
   After engaging in the objective inquiry dictated by our pre-
cedents, I can only conclude that the deliberative process is
likely to be affected for an average person who has both (1)
feared for the safety of a spouse previously victimized by a
quite similar, highly violent, terribly upsetting crime commit-
ted by a perpetrator still at large, and (2) been confronted
with his spouse’s repeated speculations about a link between
the defendant and her rapist every day of the trial, including
requests to attend the trial in light of such speculation. The
average person in such a situation undoubtedly will feel “sub-
stantial emotional involvement” with the crimes charged
against the defendant, which we have noted is an indicia of
implied bias. Tinsley, 895 F.2d at 527 (quoting Allsup, 566
F.2d at 71).

   Indeed, there is direct evidence that Floyd Hilliard’s emo-
tional involvement did influence his thought process to some
degree during the trial: Floyd Hilliard stated during his 2003
deposition, it was “only a natural response” for him to recog-
nize during the course of the trial that the testimony “sounds
like what happened to my wife,” and the trial did “trigger a
memory that . . . my wife had a similar thing.” And Floyd Hil-
liard was concerned during the trial that the link between the
facts developed during Fields’s trial and those of the crime
against his wife were so close that it could be traumatic for
his spouse to attend the trial. As Floyd Hilliard was far from
indifferent during Fields’s trial to the similarities with the
crime against his wife, it would have been an equally “natural
response” for the similarities to affect his final deliberative
process, without him being quite aware of the impact. Cf.
Allsup, 566 F.2d at 71-72 (observing implied bias arose in
part because the juror had a “reasonable apprehension of vio-
lence” from those who committed the crime on trial).

   In short, permitting the average juror in Floyd Hilliard’s
very unusual position to serve as a juror “would introduce into
the jury room an extraneous influence that could materially
color the deliberations. The juror in question would be lacking
12036                       FIELDS v. BROWN
the quality of indifference which, along with impartiality, is
the hallmark of an unbiased juror.” Dyer, 151 F.3d at 982.
Accordingly, Fields’s constitutional right to a fair trial by a
panel of “impartial and indifferent” jurors was violated by
Floyd Hilliard’s presence in deliberations. See Morgan, 504
U.S. at 727.

   Given these close, emotionally charged, and ongoing links
between Fields’s trial and the rape of Diane Hilliard in the
same area a couple of years earlier by a rapist who was still
at large, the majority’s observation that “[b]eing the spouse of
a rape victim is not, in and of itself, such an ‘extreme’ or
‘extraordinary’ situation that it should automatically disqual-
ify one from serving on a jury in a case that involves rape”
is quite beside the point. Maj. op. at 11972 (emphasis added).
Our case law indicates that we should not inquire at such a
general level about the effect of a relationship with the trial.
See Tinsley, 895 F.2d at 527. That admonition applies in
spades in this case. For, although the majority tries to segre-
gate out and minimize the impact of the Hilliards’ struggle
during the trial over whether Diane Hilliard could attend, in
fact that struggle is critical in assessing the implied bias issue
in this case.14 The daily discussions between Floyd Hilliard
and his wife plainly had emotional content of their own and
brought back to Floyd Hilliard on a daily basis the emotional
impact of the connection between the brutal facts proved at
trial and the brutal attack on his wife. No other case of which
I am aware concerning implied bias arising from similarities
between the offense being tried and the experiences of a
juror’s close relative has this exceptional feature — that the
  14
    The majority maintains, Maj. Op. at 11973 n.13, that a consideration
of the discussions between Hilliard and his wife during trial would trans-
form the implied bias inquiry from an objective analysis of the relation-
ship between a juror and the trial into a subjective one. This is not so. Our
analysis is still based on objectively observable facts that make it possible
to infer bias as a matter of law with regard to any reasonable juror who
finds himself in the same circumstances. Here, those circumstances
include the mid-trial interactions between Hilliard and his wife.
                             FIELDS v. BROWN                          12037
juror could not put the link fully behind him during the trial,
because it kept arising, daily, at home. And, as the jury delib-
erations took place at the end of the trial, not the beginning,
the impact of the mid-trial discussion is not a side issue, as the
majority supposes, but is all-important.15

                                     C.

   The majority, nonetheless, concludes that it “see[s] no basis
for inferring bias now as a matter of law,” “[g]iven Hilliard’s
honest response on voir dire that revealed a potentially dis-
qualifying relationship, but not an extreme or extraordinary
one, and the results of the evidentiary hearing which disclosed
no actual bias.” Maj. op. at 11973 (emphasis added). But nei-
ther Floyd Hilliard’s honest response nor his lack of actual
bias answer the dispositive implied bias question — whether
this case’s facts present an extraordinary situation to which
implied bias applies.

   1.   In rejecting Fields’s implied bias claim, the majority
  15
     The majority suggests that an implied bias analysis does not allow
consideration of circumstances that arose after voir dire, and that such cir-
cumstances can only be analyzed as “extrinsic influence” or “ex parte
communications.” See Maj. Op. at 11973-74 n.14. True, many circum-
stances that arise after voir dire and that are relevant to implied bias will
also involve inappropriate ex parte communications or extrinsic influence
— for example, if a family or business relationship were to develop
between a juror and the prosecutor or defendant after the trial had begun.
But the fact that a circumstance also involves ex parte communication
does not prevent a holding of implied bias where an “extraordinary” rela-
tionship between the juror and the case arises only after the trial begins.
So, for example, if after voir dire but during trial a juror were the victim
of a crime similar to the one being tried, the appropriate inquiry would still
be for implied bias. Such an event would be entirely collateral to the trial,
involving no one connected to it nor any of the facts before the jury, yet
could influence an average person’s impartiality. Moreover, my analysis
is simply an application of the existing case law on implied bias to the
unusual facts in this case, and not a new rule subject to the constraints of
Teague as the majority suggests. Maj. Op. at 11974 n.14.
12038                       FIELDS v. BROWN
stresses the district court’s finding that Floyd Hilliard was not
dishonest during voir dire. See Maj. op. at 11970
(“[D]ishonesty in voir dire is the critical factor.”); id. at 11970
(“Although we have recognized that bias may be implied
where close relatives of a juror ‘have been personally
involved in a situation involving a similar fact pattern,’ we
have never actually done so when the juror was honest on voir
dire. We decline to do so here.” (citations omitted)). In my
view, given (1) the close similarities between the accusations
against Fields and the crime against Diane Hilliard combined
with (2) the strong, fully understandable emotional reaction of
the Hilliards to the crime and (3) the fact that Floyd Hilliard
had to deal with his wife’s repeated suggestions during the
trial that Fields was her assailant, Floyd Hilliard’s honesty or
lack thereof matters little to the implied bias analysis.

   As a general matter, the implied bias question is analyti-
cally distinct from the question of whether a juror was honest
during voir dire: The former determines whether a juror was
categorically unfit to serve as an impartial, indifferent juror;
the latter determines whether a juror shortchanged the defen-
dant’s right to learn about jurors’ proclivities through voir dire.16

   The separate opinions by the Supreme Court in McDo-
nough Power Equipment, Inc. v. Greenwood establish this
distinction. Focusing on the harm that the appellant alleged
   16
      Of course, if an honest voir dire answer causes the defendant to
become fully aware of the facts creating the implied bias, and he fails to
request that the judge excuse the juror for cause, then he cannot ask for
his conviction to be reversed on the jury bias ground. See United States
v. Bolinger, 837 F.2d 436, 439 (11th Cir. 1988) (per curiam) (“Thus,
where the defendant or defense counsel knows of juror misconduct or bias
before the verdict is returned but fails to share this knowledge with the
court until after the verdict is announced, the misconduct may not be
raised as a ground for a new trial.”). Because Floyd Hilliard’s voir dire
answers did not — and could not, because many of the relevant facts arose
only after jury selection — reveal all of the relevant facts, waiver does not
apply in this case.
                       FIELDS v. BROWN                    12039
arose “because counsel lacked an item of information which
objectively he should have obtained from a juror on voir dire
examination,” the principal opinion held that an appellant
“must first demonstrate that a juror failed to answer honestly
a material question on voir dire” to receive a new trial on that
basis. McDonough, 464 U.S. at 555-56. Five Justices, how-
ever, made clear that a juror could still be substantively
biased, and unsuitable for jury service, regardless of whether
his or her lies undermined the appellant’s procedural voir dire
right. See id. at 556-57 (Blackmun, J., joined by Stevens and
O’Connor, JJ., concurring) (“[R]egardless of whether a juror’s
answer is honest or dishonest, it remains within a trial court’s
option, in determining whether a jury was biased, to order a
post-trial hearing at which the movant has the opportunity to
demonstrate . . . in exceptional circumstances, that the facts
are such that bias is to be inferred.); id. at 558 (Brennan, J.,
joined by Marshall, J., concurring in judgment) (“[F]or a court
to determine properly whether bias exists, it must consider at
least two questions: are there any facts in the case suggesting
that bias should be conclusively presumed; and, if not, is it
more probable than not that the juror was actually biased
against the litigant. Whether the juror answered a particular
question on voir dire honestly or dishonestly, or whether an
inaccurate answer was inadvertent or intention, are simply
factors to be considered in this latter determination of actual
bias.” (emphasis added)).

   This interpretation of McDonough has been adopted by
four other circuits. See Gonzales v. Thomas, 99 F.3d 978,
985-86 (10th Cir. 1996) (holding a defendant who fails to
show a juror dishonestly answered a question during voir dire,
pursuant to McDonough’s principal opinion, still has “the nor-
mal avenue of relief available to a party who is asserting that
he did not have the benefit of an impartial jury,” including the
use of implied bias (quoting McDonough, 464 U.S. at 556
(Blackmun, J., concurring)) (internal quotation marks omit-
ted)); accord Zerka v. Green, 49 F.3d 1181, 1186 n.7 (6th Cir.
1995); Amirault v. Fair, 968 F.2d 1404, 1405-06 (1st Cir.
12040                       FIELDS v. BROWN
1992) (per curiam); Cannon v. Lockhart, 850 F.2d 437, 440
(8th Cir. 1988). The majority’s opinion initially recognizes
this interpretation of McDonough by explaining there are
three theories of juror bias — McDonough-style bias, actual
bias, and implied bias — but later collapses these theories
through its singular focus on whether Floyd Hilliard told the
truth during voir dire. Compare Maj. op. at 11957-58, with id.
at 11968-74. See also id. at 11968 (noting “the existence of
safeguards against actual bias” and describing voir dire as
“[t]he prime safeguard” (emphasis added) (quoting Tinsley,
895 F.2d at 527-28) (internal quotation mark omitted)).17

   Moreover, logic dictates that a juror’s honesty in voir dire
cannot affect a determination that his ties to the case present
an “exceptional circumstance” making him categorically unfit
to deliberate. Whether such a juror tells the truth or lies during
voir dire does not change the likelihood that his deliberative
process will be unconsciously affected by his emotional
involvement in the case. To borrow from Judge Konziski’s
analysis in Dyer,

     [u]nder the [majority’s] logic, reasonable jurists
     could hold that [Fields] 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 . . . the prosecutor, (2) [the prosecu-
     tor’s] former law partner, (3) [Los Angeles’s] Chief
   17
      I accept the majority’s implicit suggestion that implied bias operates
to exclude a broader category of individuals when raised as a for-cause
challenge during voir dire than when raised for the first time on appeal.
See Maj. op. at 11971 (suggesting follow-up questioning of Floyd Hilliard
could have established implied bias mandating his excusal for cause); cf.
Torres, 128 F.3d at 46-47 (noting the category of “inferable bias,” which
unlike “implied bias” does not absolutely disqualify a juror but allows a
trial judge to sustain a for-cause challenge without a showing of actual
bias). I note, however, that the Supreme Court’s explanations of implied
bias have come in cases — McDonough and Phillips — in which the juror
bias claim was raised for the first time on appeal.
                       FIELDS v. BROWN                    12041
    of Police, (4) the Grand Dragon of the [Los Angeles]
    KKK, (5) the sister of [the victim] who died in the
    shooting, (6) [the murder victim’s] mother, (7) the
    victim of [Fields’s] prior [rape], (8) [Fields’s] ex-
    wife, (9) the District Attorney, (10) a[ ] [Los Ange-
    les] councilman running for re-election on a “tough-
    on-crime” platform, (11) [Fields’s] cellmate, and
    (12) [Hilliard’s] wife . . . — so long as they had all
    sworn they [were] fair.

151 F.3d at 985. Like the Dyer majority, I believe the pres-
ence of any of these individuals on Fields’s jury would have
deprived him of a fair trial. And that would be the case
equally whether they lied during voir dire about their disquali-
fying characteristic or were fully truthful. Dishonesty is cen-
tral to a McDonough-style claim, and is of relevance to an
actual bias contention because lying on voir dire can suggest
an attempt to avoid disqualification and thereby to act on
one’s bias. But dishonesty during voir dire has little to do in
general with the concerns underlying the implied bias doc-
trine.

   Moreover, Floyd Hilliard’s honesty during voir dire is, if
anything, doubly irrelevant to the implied bias inquiry
because critical factors supporting a implied bias finding in
this case — perhaps the most important — arose after voir
dire. No amount of voir dire questioning could have uncov-
ered the fact that Diane Hilliard suggested repeatedly during
trial that Fields might be her attacker and begged Floyd Hil-
liard to allow her to attend the trial, and that Floyd Hilliard
refused to accede, in part because of fear of traumatizing his
wife. Although the majority fails to consider whether these
emotionally charged interactions after voir dire created
implied bias, see Maj. op. at 11971-72, 11974-75 (rejecting
Fields’s claims that developments after voir dire rendered
Floyd Hilliard a biased juror, because the district court found
Floyd Hilliard had no actual bias and did not believe his
wife’s speculation), such bias can arise from, or be reinforced
12042                  FIELDS v. BROWN
by, events that occur during the course of the trial, see Brooks
v. Dretke, 418 F.3d 430, 431, 434-35 (5th Cir. 2005) (finding
implied bias when a juror was arrested during trial); Hunley
v. Godinez, 975 F.2d 316, 320 (7th Cir. 1992) (holding that
implied bias arose when jurors were robbed during delibera-
tions, and noting that a juror’s exposure to the biasing factor
occurs after voir dire “may present an even more compelling
reason for applying the presumption of bias”).

  In short, Floyd Hilliard’s honesty in voir dire is entirely
besides the point in applying the implied bias doctrine to the
unique circumstances before us.

   2. Based on the district court’s finding that Floyd Hilliard
was not biased in fact, and our deferential standard of review
in reviewing such findings, the majority quickly dismisses
Fields’s actual bias claim. Maj. op. at 11961. I agree that the
district court’s findings dictate such a result. That conclusion
should end the discussion of whether Floyd Hilliard was actu-
ally biased against Fields. See Dyer, 151 F.3d at 981 (explain-
ing the distinction of the actual bias and implied bias
questions).

   The majority, however, regularly refers to the district
court’s finding of no actual bias throughout the following
nineteen pages purportedly devoted to the implied bias ques-
tion. See, e.g., Maj. op. at 11972 (“Here, the evidentiary hear-
ing showed no actual effect of his wife’s experience, or of
their conversation, on Hilliard’s ability to be fair and impar-
tial.”). Moreover, the majority entirely dismisses any claim of
implied bias arising from facts occurring after voir dire on the
basis that “the district court afforded Fields an opportunity to
show that Hilliard was not a fair and impartial juror” — the
test for actual bias — and “[h]e failed to do so.” Maj. op. at
11971. But these findings concerning Floyd Hilliard’s actual
bias are irrelevant to implied bias. See Gonzales, 214 F.3d at
1113 (“[A] court will, where the objective facts require a
determination of such bias, hold that a juror must be recused
                        FIELDS v. BROWN                    12043
even where the juror affirmatively asserts (or even believes)
that he or she can and will be impartial.”); Dyer, 151 F.3d at
984 (“[A juror] may declare that notwithstanding these
[implied] prejudices he is determined to listen to the evidence,
and be governed by it; but the law will not trust him.” (quot-
ing Burr, 25 F. Cas. at 50) (internal quotation marks omit-
ted)). The majority’s attempt to side step the true issue in this
case does nothing to change my determination that this case
presents an “exceptional circumstance” in which implied bias
exists.

                         *     *      *

   Because of the many similarities between the rape of Diane
Hilliard — a crime that greatly affected both Floyd Hilliard
and his wife — and the crime that Fields was on trial for com-
mitting, combined with Diane Hilliard’s suggestions that
Fields might be her rapist and her repeated requests to attend
the trial that raised concerns about her emotional well-being,
the required objective inquiry should lead us to hold that
Floyd Hilliard “introduce[d] . . . [an] unpredictable factor into
the jury room” and “introduce[d] destructive uncertainties
into the [factfinding] process.” Dyer, 151 F.3d at 982-83.
Floyd Hilliard may “swear[ ] up and down that it [did] not
affect his judgment, [but] we presume conclusively that he
will not leave [these influences] at the jury room door.” Id. at
982. As in Dyer, “[m]ore is at stake here than the rights of
petitioner; ‘justice must satisfy the appearance of justice.’ ”
Id. at 983 (quoting Offutt v. United States, 348 U.S. 11, 14
(1954)); see also id. at 981 (noting the possibility that the
impliedly biased juror “could have harbored some empathy
for criminal defendants” (emphasis added)). Such an appear-
ance was lacking regardless of Floyd Hilliard’s claims of con-
scious fairness — and even if in fact Floyd Hilliard was, as
far as he was aware, not influenced by the confluence of cir-
cumstances giving rise to implied bias.
12044                  FIELDS v. BROWN
                              IV.

   The State of California accused Stevie Lamar Fields of
committing a series of heinous crimes and maintains he
should be executed. The Constitution entitled Fields to have
a set of impartial jurors make such a determination in accor-
dance with the state’s penal statutes. Because the record raises
substantial doubts whether Fields’s fate was decided by such
a jury, the state may not execute him absent a retrial. I there-
fore dissent.
