Fields v. Brown

503 F.3d 755, 2007 WL 2580788

Opinions

Opinion by Judge RYMER; Partial Concurrence and Partial Dissent by Judge GOULD; Dissent by Judge BERZON.

RYMER, Circuit Judge,

with whom Chief Judge SCHROEDER and Judges KOZINSKI, O’SCANNLAIN, SILVERMAN, TALLMAN, CLIFTON, 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 convicted in 1979 for the robbery and murder of Rosemary Cobbs, a student librarian at the University of Southern California; the robbery of Clarence Gessendaner at gunpoint; the kid-naping for robbery, robbery, rape, forced oral copulation, and assault with a deadly weapon on Gwendolyn Barnett; the kid-naping for robbery and forced oral copulation of Cynthia Smith; and the kidnaping, robbery, rape, and forced oral copulation 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 constitutional 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-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 Biblical 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 constitutional 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, 197 Cal.Rptr. 803, 673 P.2d 680 (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 student 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” 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 former 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 punished 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, Debbie saw Fields, Gail, and Rosemary get into a car Gail borrowed 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 Rosemary’s purse, driver’s license, and a torn check from Rosemary to Gail for $185 were found in Fields’s residence.

On October 2, 1978, Clarence Gessen-daner parked his Pontiac 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 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 venereal 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. Gwendolyn passed out but when she awoke, she saw Blackwell holding 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 Colleen 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 withdraw $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 residence 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 throwing herself backwards through a closed window in the bedroom, 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 premeditated 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 kid-naping, robbery, forcible oral copulation, and rape of Coates. In a separate phase, the jury determined that Fields was sane. At the penalty 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, 1988. 85 Cal.3d at 336, 197 Cal.Rptr. 803, 673 P.2d 680. 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 conducted an evidentiary hearing. In re Fields, 51 Cal.3d 1063, 275 Cal.Rptr. 384, 800 P.2d 862 (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 California Supreme Court, which was denied on October 14, 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, 118 S.Ct. 1826, 140 L.Ed.2d 962 (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 sentenced 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 Antiter-rorism 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 counsel), 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 hearing, the district court found that Juror Hilliard was not dishonest during voir dire, that he was not actually biased, and that application of the implied bias doctrine in the absence of dishonesty would be a new rule barred by Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). It also found that the Hilliards had no discussions 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 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. Brown, 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 experience 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 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 questions and Hilliard was empaneled without challenge.

The present dispute centers around a declaration from Diane Hilliard, Floyd Hil-liard’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 Hil-liard’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 Hilli-ard’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. Hilli-ard 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 declaration 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 evidentiary 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 testimony the court credited, Hilliard explained that during voir 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, Hilli-ard 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 evidence presented. Hilliard, who like Fields is African-American, testified that he did his best to be a fair juror, giving 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 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 truthfulness of a juror’s responses on voir dire; actual bias, which stems from a pre-set disposition not to decide an issue impartially; 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 Hilliard 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 impartiality. We discuss each in turn.

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, 104 S.Ct. 845 (quoting Smith v. Phillips, 455 U.S. 209, 217, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982)). As the Supreme Court recognized in McDonough, “[v]oir dire examination serves to protect that right by exposing possible biases, both known and unknown, on the part of potential jurors.” Id. at 554, 104 S.Ct. 845.

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 injuries 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 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 perfection 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 recreate the peremptory challenge process because counsel lacked an item of information which objectively he should have obtained from a juror on voir dire examination.

Id. at 555, 104 S.Ct. 845. 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, 104 S.Ct. 845.

After careful consideration of the entire record, the district 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. Calderon, 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 sexual 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.2003) (holding that juror’s misunderstanding of a legal term did not connote dishonesty); McDonough, 464 U.S. at 555, 104 S.Ct. 845 (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 judges”); see also Sanders v. Lamarque, 357 F.3d 943, 947-50 (9th Cir.2004) (holding that a juror was not dishonest in failing to disclose that twenty-five years previously she had lived in an area with gang activity); Dyer, 151 F.3d at 973 (observing that it follows from McDonough that “an honest yet mistaken 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.

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 existence of a state of mind that leads to an inference that the person 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) (internal 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 discretion, Gonzalez, 214 F.3d at 1112. We are satisfied that there was no manifest error in the district court’s finding that Hilliard 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 impartial. He did not lie to conceal bias. While his wife speculated that Fields might be the person who accosted her, Hilliard 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.

This leaves Fields’s argument that Hilliard was, nevertheless, impliedly or presumptively biased. As the panel recognized 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 McDonough seem to embrace it, see McDonough, 464 U.S. at 556-57, 104 S.Ct. 845 (Blackmun, Stevens, and O’Connor, JJ., concurring);⁶ id. at 558, 104 S.Ct. 845 (Brennan and Marshall, JJ., concurring in the judgment),⁷ 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 employees 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 members of your immediate families [have] ever been personally inter ested in the defense of a criminal case or a witness for the defense in a criminal case[J” 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.

In Tinsley v. Borg, 895 F.2d 520 (9th Cir.1990), in contrast, 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 528. The juror stated during 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 experience 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 presents 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 average 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 neither 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 information 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 relatives 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 concluded that the juror plainly lied, and that her lies gave rise to an inference that she chose to conceal important facts in order to serve as a juror and pass judgment on Dyer’s sentence. 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 “pattern 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 equivocally when asked three times whether she could put her personal 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.

In sum, we have implied bias 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 average person could remain impartial in his deliberations 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 material 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 maintains that all the indicia for implied bias are present as Hilliard and his wife went through a personal experience 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 conversations with her during the trial present the potential for substantial 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 reasonable 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 retroactive application by a federal court of a new rule of constitutional 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, 114 S.Ct. 948, 127 L.Ed.2d 236 (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 a presumption of bias in the absence of a finding of juror dishonesty. 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, 104 S.Ct. 845; 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 conversations that Hilliard had with his wife during trial are not Teague-barred because extrinsic information has long implicated the constitutional right to a fair trial. See, e.g., Remmer v. United States, 347 U.S. 227, 229, 74 S.Ct. 450, 98 L.Ed. 654 (1954). He also argues that implied bias based on deficient responses to voir dire questions has been firmly established at least since McDonough 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, 104 S.Ct. 845 (Blackmun, Stevens and O’Connor, JJ., concurring); id. at 558, 104 S.Ct. 845 (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 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, 70 S.Ct. 519, 94 L.Ed. 734 (1950), the court considered the problem, but refused to find that government employees were impliedly biased and thus automatically disqualified from serving on a jury where the government is a party. Id. at 172, 70 S.Ct. 519. 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. *, 102 S.Ct. 940 (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, 102 S.Ct. 940 (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, 104 S.Ct. 845. 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, 104 S.Ct. 845 (Blackmun, Stevens, and O’Connor, JJ., concurring); id. at 558-59, 104 S.Ct. 845 (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 predicate 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.”).

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 concurrence in Phillips that presuming bias despite an honest disclosure 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).

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

“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, 104 S.Ct. 2885, 81 L.Ed.2d 847 (1984)). 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 examination 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 warrant challenge for cause may assist parties in exercising 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, 104 S.Ct. 845 (citation omitted) (quoting Phillips, 455 U.S. at 217, 102 S.Ct. 940).¹⁰ Accordingly, when the issue of bias arises after trial (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, 104 S.Ct. 845.

Hilliard honestly disclosed that his wife had been a victim 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’ involvement 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 vulnerability to the same type of conduct for which the accused bank robbers were on trial. Hilliard had no personal connection 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 recognized that bias may be implied where close relatives of a juror “have been personally involved in a situation involving a similar fact pattern,” Tinsley, 895 F.2d at 528; Eubanks, 591 F.2d 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. Hilli-ard’s honest disclosure on voir dire about what happened to his wife was more than sufficient 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 at 527 (quoting Person, 854 F.2d at 664). Fields had a remedy at that point&emdash;a challenge for cause, which lies for implied as well as actual bias&emdash;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 Hilliard’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 Hilliard 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.’ ” Phillips, 455 U.S. at 216, 102 S.Ct. 940 (quoting Dennis, 339 U.S. at 171-72, 70 S.Ct. 519); see also id. at 215, 102 S.Ct. (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, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000) (quoting Phillips on the point and reiterating that the defendant may establish at an evidentiary hearing that a prospective juror who arguably failed to tell the truth on voir dire was not impartial).

Knowing what we now know as a result of the evidentiary 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 encounters. It is the role of voir dire to ferret out such relationships, 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” situation 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 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 continuing 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

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 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 impartiality, or they could amount to an impermissible private communication between a juror and a third person that, under Mattox v. United States, 146 U.S. 140, 150, 13 S.Ct. 50, 36 L.Ed. 917 (1892), and Remmer v. United States, 347 U.S. 227, 229, 74 S.Ct. 450, 98 L.Ed. 654 (1954), would invalidate the verdict unless the communications were deemed harmless.

Fields argues that the fact that Hilliard knew his wife seriously 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 Hilliard 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 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 husband 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.

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

Ill

In a related claim, Fields alleges that his counsel was ineffective 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, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), Fields must show that his “counsel’s performance was deficient” and “that the deficient performance prejudiced the defense.” Id. at 687, 104 S.Ct. 2052. 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-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 prejudiced. Strickland, 466 U.S. at 697, 104 S.Ct. 2052 (observing that a court may determine prejudice without first deciding deficiency). Prejudice 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, 104 S.Ct. 2052. 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.

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 conviction.

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 declarations 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 knowledge that other jurors can easily rebut, and a jury’s considering 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 deliberations the next day.¹⁵ White also consulted a dictionary for definitions of the words “extenuation,” “vindication,” and “mitigate,” and brought these notes to the jury room as well.¹⁶ 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 consideration 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 deliberative process may not. See, e.g., Sassounian v. Roe, 230 F.3d 1097, 1108-09 (9th Cir.2000) (relying on a long line of precedent 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 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 concluded 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.

Before turning to the merits, we must first decide whether this claim is Teague-barred. See Caspari, 510 U.S. at 389, 114 S.Ct. 948; 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 discretion 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 statute].’ ” Tuilaepa v. California, 512 U.S. 967, 979-80, 114 S.Ct. 2630, 129 L.Ed.2d 750 (1994) (quoting Zant v. Stephens, 462 U.S. 862, 875, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983)). The state also points out that as of that date, it was established law that a capital jury “expresses] the conscience of the community on the ultimate question of life or death.” Witherspoon v. Illinois, 391 U.S. 510, 519, 88 S.Ct. 1770, 20 L.Ed.2d 776 (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, 13 S.Ct. 50, 36 L.Ed. 917 (1892). The district 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 reviewing court to determine whether the particular materials that a juror brought into the jury room are extraneous materials, or are merely “the Mnd 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 particularly difficult to conclude that the law applicable to a discrete set of circumstances was dictated by precedent.

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 deliberating that the defendant had killed someone else, and a newspaper article injurious to the defendant was brought to the jury room and read. In this context, the Court articulated the now-familiar rule that “[pjrivate communications, possibly prejudicial, 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, 13 S.Ct. 50. Remmer applied the rule to allegations of bribery. See 347 U.S. at , 74 S.Ct. 450. In Turner v. Louisiana, 379 U.S. 466, 473-74, 85 S.Ct. 546, 13 L.Ed.2d 424 (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, 87 S.Ct. 468, 17 L.Ed.2d 420 (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 circumstances, for example, when a juror received a threatening telephone call at home, United States v. Armstrong, 654 F.2d 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 Biblical verses and the other concepts contained in the notes are notions of general currency that inform the moral judgment that capital-ease jurors are called upon to make. As Justice Stevens put it, “[wjhile 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, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992) (Stevens, 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 opposition — “no real deterrent value,” “there is no simple, ‘just,’ penalty,” “discriminatory selection,” “rehabilitation,” and “perhaps wrong chap convicted.” Fields nowhere suggests that White was not free to recite these points, including those from the Bible, or to resort to their reasoning. 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 N.R.R. Co., 870 F.2d 1454, 1461 (9th Cir.1989))); Burlington, 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 experiences 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 discussion of the practical effect of imposing a sentence of life without parole does not constitute reversible error, and holding that considering the sentences’ comparative costs doesn’t either). It is difficult to see how sharing notes can be constitutionally 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 paraphrase a Biblical passage in closing argument in the penalty phase of a capital case. See Sandoval v. Calderon, 241 F.3d 765, (9th Cir.2000). However, the prosecutor is constrained 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 presented at trial that is relevant to the jury’s decision as defined by the instructions given by the court. Id. Also, the prosecution’s invocation of “higher law” or extra-judicial authority violated the Eighth Amendment principle of narrowly channeled sentencing discretion. Id. Further, we noted that argument 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.

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. Sassounian, 230 F.3d at 1108 (applying Brecht¹⁹ standard on habeas review of claim that jury considered extrinsic evidence).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 communication occurred early on in deliberations. Jurors could take as much time as they needed to sort through the evidence and reflect on whether the ultimate penalty was the right penalty.²² More important ly, 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, — U.S. -, 126 S.Ct. 2516, 2528, 165 L.Ed.2d 429 (2006); Richardson v. Marsh, 481 U.S. 200, 206, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987) (applying “the almost invariable assumption of the law that jurors follow their instructions”).

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, 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 circumstances are generally horrifying crimes, but that juries nevertheless return verdicts of life imprisonment 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, 275 Cal.Rptr. 384, 800 P.2d 862 (1991) (internal citation omitted). Given this, we see no prejudicial constitutional error on account of the juror’s notes that requires issuance of the writ.²³

Dictionary definitions for terms used in the instructions 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 consideration 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

Y

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, assuming 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.

Footnotes

1

. We take this summary of facts from the opinion of the California Supreme Court, People v. Fields, 35 Cal.3d 329, 336-40, 197 Cal.Rptr. 803, 673 P.2d 680 (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.

2

. AEDPA does govern whether a petitioner may appeal after AEDPA’s effective date. Slack v. McDaniel, 529 U.S. 473, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Accordingly, we treated Fields’s notice of appeal as a.request for a Certificate of Appealability, and found that he made the requisite showing on each of the issues raised. Fields II, 309 F.3d at 1101.

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 business 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 prospective juror had any friends or relatives who were in law or law enforcement; and (9) whether the prospective juror knew of any reason that he or she could not serve as a fair and impartial juror.

5

. McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 104 S.Ct 845, 78 L.Ed.2d 663 (1984) (plurality) (holding that to get a new trial based on a juror’s responses in 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).

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 therefore join the Court’s opinion, but I write separately to state that I understand the Court’s holding not to foreclose the normal avenue 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, 104 S.Ct. 845 (Blackmun, J., concurring). Justice Blackmun cited to Justice O’Connor's concurring opinion in Smith v. Phillips, 455 U.S. 209, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982), where she suggested that bias may be presumed when, for example, 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, 102 S.Ct. 940 (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 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, 104 S.Ct. 845 (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, 104 S.Ct. 845.

8

. Teague v. Lane, 489 U.S. 288, 310, 109 S.Ct. 1060, 103 L.Ed.2d 334 (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 conviction 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. California, 469 U.S. 892, 105 S.Ct. 267, 83 L.Ed.2d 204 (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.

10

. Judge Berzon’s assertion that "dishonesty during voir dire has little to do in general with the concerns underlying the implied bias doctrine," Berzon dissenting op. at 811, 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 themselves. 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 careful inquiry, indicators of bias&emdash;actual, implied, or merely imagined&emdash;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 eviden-tiary inquiry into whether the juror was really biased, there is no longer any need to “imply” anything. We know the actual facts.

11

. We note that this determination may depend upon testimony of the juror in question. See, e.g., Phillips, 455 U.S. at 217, 102 S.Ct. 940 (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, 70 S.Ct 519 (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 honest 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, 70 S.Ct. 519). 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 similar 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).

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 808-09. But Tinsley made the inherent nature of the relationship precisely the point for purposes of the implied bias doctrine&emdash; 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 communications or extrinsic information infected the partiality of the jury, but it is not germane to whether bias inheres in a particular rela tionship 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 somehow "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 concepts of implied bias&emdash;which arises intrinsically from an "extreme” and "extraordinary” relationship between a juror and an aspect of the litigation&emdash; and ex parte communication with, or extrinsic influence on, a juror. Berzon, J., dissenting op. at 808. To do so creates a novel, hybrid category of implied bias that goes well beyond anything heretofore recognized. 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. *, 102 S.Ct. 940, Teague may be implicated by a new concept of bias cobbled out of a relationship plus alleged ex parte communications. Beyond this, Judge Berzon’s approach fails to recognize that the remedy for allegations of juror partiality stemming from events such as ex parte communications 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, 74 S.Ct. 450, 98 L.Ed. 654 (1954); Phillips, 455 U.S. at 216, 102 S.Ct. 940; Dennis, 339 U.S. at 171-72, 70 S.Ct. 519; Williams, 529 U.S. at 442-44, 120 S.Ct. 1479; 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.

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. Therefore, he who resists the authority, resists the ordinance of God; and they that resist bring on themselves condemnation

‘For rulers are a terror not to the good work but to the evil. Dost thou wish, then, not to fear the authority?

'Do what is good and thou will have praise from it. For it is God['s] minister to thee for good. But if thou dost what is evil, fear, for not without reason does it carry 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 normal”

• "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, legitimate 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, cowardice, 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 Mitigate — soft, smooth, gentle, mild, abate, lessen, allay, attenuate, weaken, reduce, render or cause to be less, less harsh[,] decrease, dimmish, 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 during the course of the jury’s deliberations or to the effect of anything upon that or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror’s mental processes in connection therewith. But a juror may testify about (1) whether extraneous prejudicial information was improperly brought to the jury's attention, (2) whether any outside influence was improperly brought to bear upon any juror, or (3) whether there was a mistake in entering the verdict onto the verdict form. A juror’s affidavit or evidence of any statement by the juror may not be received on a matter about which the juror would be precluded from testifying.

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 assistance 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&emdash;and implies that the truncated version has been our court’s test for “more than two decades.” Berzon, J., dissenting op. at 800. 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. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (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 prejudice of extrinsic information is diminished in a particular case include:

[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)).

19

. Brecht, 507 U.S. at 623, 113 S.Ct. 1710 (adopting standard for determining whether error was harmless).

20

. Judge Berzon’s dissent posits that under Lawson, "the relevant constitutional question” is whether " 'even a single juror's’ vote was 'improperly influenced.' ” Berzon, J., dissenting op. at 800. 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 majority 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 during sentencing deliberations in a capital case did not violate the petitioner’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, 52 Cal.Rptr.3d 268, 148 P.3d 47 (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 795. 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, 547 U.S. 1073, 126 S.Ct. 1828, 164 L.Ed.2d 522 (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.

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 sentence,” Gould,¹ J., dissenting op. at 788, however this trenches into territory 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 deliberative 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, 104 S.Ct. 453, 78 L.Ed.2d 267 (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 discussed the Biblical references.” Berzon, J., dissenting op. at 798. However, 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.

23

. For this reason we do not reach the state’s remaining arguments for reversal.

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.

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.”); Shelley v. Kraemer, 334 U.S. 1, 20, 68 S.Ct. 836, 92 L.Ed. 1161 (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).