Ninth Upholds Death Penalty Despite Jury’s Reference to Bible during Penalty Phase Deliberations

Stevie Lamar Fields was convicted in California state court of heinous crimes, including murder, which he committed in the course of a three-week spree that he started just two weeks after completing a prison stretch for manslaughter.  During the penalty phase of his trial, the jury foreman consulted a Bible, a dictionary, and other reference texts, made notes of points for and against the death penalty, then shared those notes with the jury.  The foreman’s notes in favor of the death penalty included Biblical passages.  Fields was sentenced to death.

The District Court denied habeas relief on the conviction but granted it as to the death penalty. The Ninth Circuit’s en banc reversal of habeas relief for the death sentence in Fields v. Brown, case no. 00-99005 (9th Cir. Sept. 10, 2007) is generating law blog buzz. 

The Ninth summarized Fields’ arguments regarding the Biblical references as follows:

[Fields] 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.
   

Applying an objective test for undue influence, the court opines that a jury would not be unduly influenced by the notes:

Whether or not [the foreman] should have brought his notes to the jury room and shared them, 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.  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. 
   

Ultimately, however, the court appears to rely on the presence of aggravating factors in support of the death penalty as a counterweight to the notes.  The aggravating evidence was so substantial, the court finds, that jury misconduct had no “substantial and injurious effect or influence in determining the jury’s verdict.” Given this substantial aggravation, the court saw “no prejudicial constitutional error on account of the juror’s notes that requires issuance of the writ.”

By my read, the majority (the case generates three opinions covering 99 pages) leaves open the possibility that where aggravating factors are not so prevalent, or evidence of them not so great, the influence of Biblical materials in the jury deliberations might well be found to have an injurious influence on the jury.

Other law blog coverage can be found at Decision of the Day, Capital Defense Weekly (which calls the decision “cert. bait”), Deliberations (very detailed), and Sentencing Law and Policy (providing links to prior posts on circuit splits on this issue).

How Appealing has this round-up of press coverage.

Expansive Congressional Authorization for Government Appeals in Criminal Cases

In U.S. v. Stanton, case. no. 06-10519 (9th Cir. August 31, 2007), Stanton was convicted by a U. S. Magistrate Judge in a bench trial.  He appealed to the District Court, which reversed his conviction.

The government appealed from the District Court order.  Stanton makes a two-pronged challenge to the government’s right to appeal.

First, he contends that jurisdiction is lacking because the government may appeal only where authorized by Congress and the Criminal Appeals Act, 18 USC §3731, does not explicitly authorize the government to appeal from a district court order reversing a conviction entered by a magistrate and ordering an entry of acquittal.  Right on both counts, says the court, but immaterial.  Section 3731 is expansive, not restrictive, and essentially authorizes appeal by the government so long as it does not violate the Double Jeopardy Clause.  Since reversing the district court here would reinstate Stanton’s conviction without the need for a retrial, the Double Jeopardy Clause is not violated.
More statistics: https://chamberslegal.com.au/what-we-do/criminal-lawyers-perth

Second, Stanton contends that Section 3731 does not authorize an appeal in his case because it only authorizes appeals from the dismissal of an indictment or information, and he was charged by way of criminal complaint.  Once again, the liberal construction of Section 3731 comes to the government’s rescue.  Section 3731 itself provides that “[t]he provisions of this section shall be liberally construed to effectuate its purposes.”  Since the Supreme Court has identified the section’s purpose as “avoiding the creation of nonconstitutional barriers to appeal,” and Stanton identifies no constitutional reason why Section 3731 should not apply in cases where the defendant is charged by criminal complaint, the distinction does not prevent appeal.

Jurisdiction over Church Property Issues

When does a Southern Baptist church cease to be a Southern Baptist church?  I know that sounds like a set-up, but there’s no punchline here.  It’s a serious question, and it was at the heart of a dispute decided by the a Monterey County Superior Court.

In Central Coast Baptist Assn. v. First Baptist Church of Los Lomas, case no. H029958 (6th Dist. August 23, 2007), a reversionary clause in First Baptist’s constitution provided that its assets would pass to Central Coast, a voluntary association of Baptist churches, in the event of a “dissolution or winding up” of First Baptist or if it should “cease to be a Southern Baptist Church.”  Central Coast brought suit to enforce the reversionary clause, contending it was triggered by the attempted takeover of First Baptist by New Life Community Church and its Pastor.  After a bench trial ordered enforcement of the reversionary clause based on its findings that FIrst Baptist had “ceased to function as a Southern Baptist Church” and had “de facto dissolved.”

The court finds that the trial court lacked jurisdiction to inquire into the first condition for triggering the clause — whether First Baptist had ceased to be a Southern Baptist Church — because the question required resolution of disputes over church doctrine.  Such an inquiry violates the First Amendment.

However, the First Amendment does not bar inquiry into the existence of the second condition — dissolution or winding up — because the issue can be resolved by application of neutral legal principles to the governing church bylaws and constitution.  The court finds plenty of evidence — not the least of which were resolutions, properly adopted according to the procedures in the bylaws, to dissolve the church and turn the assets over to Central Coast — to support the trial court’s finding that First Baptist had “de facto dissolved.”

The Reasonableness of Airport Screening: Consent, 9/11, and Terrorism

Here’s an interesting Fourth Amendment case from the Ninth Circuit today.  In United States v. Aukai, case no. 04-10226 (August 10, 2007), an en banc panel of the Ninth holds that the administrative search at airport screening, including enhanced secondary screening, is reasonable with or without consent once the person attempts to access the secure area of the airport, even if he says he no longer wishes to board a plane.

Aukai, after passing through the metal detector and having his personal effects screened without event as part of his entry to the secure area of the airport, was subjected to secondary screening because he had no ID.  This screening eventually turned up a glass pipe for smoking methamphetamine. He was arrested, and the search incident to arrest turned up several bags of meth.

The wrinkle: during the secondary screening, Aukai told the Transportation Security Administration officers that he no longer wished to board a plane, but the search continued.

The court finds the search is a constitutional administrative search even tough it continued past the time Aukai said he no longer wished to board the plane.  The court finds that passengers subject themselves to search as soon as they try to access the secure area of the airport.

The majority opinion invokes 9/11 and the terrorism threat to argue that if passengers could force cessation of the search, terrorists could probe for security weaknesses by revoking their consent just before discovery or have multiple opportunities to get through security.

Three judges write a concurring opinion saying that the majority should not have relied specifically on the terrorist threat.  They argue that the terrorism discussion is irrelevant and will only provide ammunition for future defendants to challenge the continuing validity of the “solid” holding once the terror threat subsides.

At California Appellate Report, Professor Martin explains why he thinks the case “is worth reading wholly apart from the merits. ”

Decision of the Day’s coverage is written from the perspective of someone who also blogged the original panel decision and the decision to hear the case en banc.  Rather interesting to read the posts in sequence.  The last includes an interesting observation about the authorship of the panel and en banc opinions.

Ninth Circuit Blog  writes, “and so the Constitution keeps on turning.”

More on U.S. v. Larson

A few days ago, I blogged about the odd reasoning behind the en banc Ninth Circuit’s purported resolution in United States v. Larson of a 3-way intra-circuit split over the applicable standard of review in Confrontation Clause cases. Here’s some other blog coverage.

While my post concentrated on the intra-circuit split, Split Circuits gives you coverage of the split among the federal circuits on the same issue.

California Appellate Report comments on the odd 4-4-7 split vote of the en banc panel that results in one of the 4-judge opinions being the opinion of the court.

Larson is Ninth Circuit Blog’s Case o’ the Week, where the federal defenders’ blog digs into the substantive aspects of the case and notes that despite the intent of en banc review to clarify important issues, this case will be “all things to all people” and the poster, Steve Kalar, also responds to my comment.

 UPDATE (8/3/07): University of Michigan Law School Professor Richard Friedman addresses the standard of review issue in depth, along with some of the substance.  It’s the most comprehensive post about the case that I’ve run across.

Processing Irony in a Ninth Circuit Equal Protection Case

Circuit Judge Berzon hooked me with this opening paragraph of U.S. v. Trimble, case no. 06-30298 (May 30, 2007):

The Bill of Rights was ratified in 1791. The United States produced its first automobile in 1877, and the first traffic ticket issued in 1904.

This appeal to the Ninth Circuit was over a traffic ticket. Specifically, the penalty imposed for the violations as a result of the form of ticket used. Notwithstanding the minor nature of the offenses, the case implicates a major constitutional doctrine — equal protection.

Trimble was ticketed on a military base. The officer who wrote Trimble’s ticket did so on a brand new form that imposed a $25 processing fee in addition to any fine. Because of a shortage of the new forms, other officers at the exact same time were still writing tickets on the old form of ticket, which made no mention of a processing fee. At her court appearance, the fine imposed on Trimble included the processing fee on three violations (for a total of $75). She appealed, claiming that the imposition of the processing fee based solely on the form of ticket written violated the equal protection clause. The court agrees.

The irony? The $25 processing charge was instituted, according to the court, “to offset the costs of managing petty offense cases in the federal courts.” Yet Trimble invoked the appellate jurisdiction of the Ninth Circuit, and successfully avoids the fee that was intended to offset the costs of routine federal court management.

On the equal protection issue, the court finds no rational basis for allowing different penalties despite its “excursion into imaginative recreation of possible justifications.”

Professor Shaun Martin isn’t sure the court exhausted the possibilities and is taken aback at the resources poured into an appeal over $75. His post at California Appellate Report ends (emphasis in original):

But let me add one more thing. Seventy five dollars. For that we appoint a public defender and have a U.S. attorney and the P.D. brief and argue an entire appeal? We can’t just save some money by confessing error and refunding the piddly seventy-five bucks?

Perhaps in the long run it will turn out to be money well spent. Professor Berman at Sentencing Law and Policy thinks the case may have broader implications:

Based on a quick read, I am not entirely sure whether the Trimble holding might provide a basis for questioning other sorts of criminal justice “injuries large and small.” Any readers have any suggestions or creative litigation thoughts?

Anyone who wants to respond to Professor Berman should go to his post.

Howard Bashman at How Appealing suggests that “the Administrative Office of the U.S. Courts might wish to adjust its revenue projections to reflect that it won’t be receiving a $25 processing fee” for tickets issued at the base.

Small stakes, big issue, interesting case.

UPDATE: (5/31/07): A short post on this case at the Volokh Conspracy gathers some interesting comments. Decision of the Day also wrote up this one, and follows up with a post today that suggests the first circuit isn’t so solicitous of small cases.

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Legal Blogosphere Reacts as Ninth Circuit Puts the Brakes on CDA Immunity for Online Services

Yesterday’s Ninth Circuit decision in Fair Housing Council v. Roommates.com, LLC, case no. 04-56916 (May 15, 2007) has the digital legal world abuzz . . . as one should expect of the latest decision on the scope of immunity afforded to online services by the Communications Decency Act (“CDA”), 47 U.S.C. § 230(c).

In this case, two municipal fair housing councils sued Roommates.com, an online clearinghouse for those seeking to obtain roommates or move in as one. They alleged that the website published discriminatory roommate preferences in violation of the Fair Housing Act and various state laws. The district court found Roommates immune under the CDA and granted summary judgment on the FHA claim.

Judge Kozinski’s majority opinion succinctly summarized the bounds of immunity under the CDA:

In other words, if Roommate passively publishes information provided by others, the CDA protects it from liability that would otherwise attach under state or federal law as a result of such publication. But if it is responsible, in whole or in part, for creating or developing the information, it becomes a content provider and is not entitled to CDA immunity. (Footnote omitted.)

The majority opinion then finds that Roommates lacks immunity under the CDA for publishing and e-mailing member profiles containing members’ gender, sexuality, and children information and preferences, which it collects from its members via an interactive, drop-down menu registration process. But it finds that Roommates is immune from liability for publishing the free-form comments submitted by its members. Concurring and dissenting, Judge Reinhardt would also find immunity lacking for the latter publication.

Some bloggers suggest a possible relationship to anti-blogging sentiment recently expressed by Judge Kozinski. Howard Bashman at How Appealing says this “decision screwing-up the protection from liability for online postings” might have been foreshadowed by “Judge Kozinski’s recent expression of anti-blogger sentiment,” to which he links. David Lat at Above the Law headlines his post about the case: “Does Judge Kozinski Hate Blogs?” University of San Diego School of Law Professor Shaun Martin, blogging at California Appellate Report, spies a “tangential slam on bloggers” in footnote 1 of the opinion, but doesn’t seriously tie the decision to anti-blogging bias.

In a subsequent post, Bashman links to an article about the case that will appear in Wednesday’s New York Times.

UCLA law professor Eugene Volokh at The Volokh Conspiracy has two posts about the case. The first is a detailed analysis of the decision. His second is a commentary on the (un)constitutionality of limiting free speech and free intimate association rights to advertise for and select a roommate of one’s choice.

Professor Eric Goldman of the Santa Clara University School of Law, blogging at Technology and Marketing Law Blog headlines his take “Ninth Circuit Screws Up 47 USC 230.” He sees a “180” being pulled by the court:

Just a couple months ago, in Perfect 10 v. CCBill, the Ninth Circuit issued an incredibly expansive 230 ruling. Today, in a highly fractured opinion, they go in the completely opposite direction, creating a significant exception to 230’s coverage that’s bound to spur plenty of new unmeritorious and ill-advised lawsuits from plaintiffs. Why the 180? Such is life in the Ninth Circuit.

The Decision of the Day blog provides analysis supporting its opinion that the “decision suggests that § 230 may be a lot narrower than some websites would like.

Bashman’s and Goldman’s posts suggest ramifications for pending suits against DontDateHimGirl.com and the insanely popular Craig’s List.

Thanks to the bloggers mentioned above for providing many of the links.

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California Joins Jurisdictions Holding that Injunction Against Speech Already Proven at Trial to be Defamatory is Constitutional

In a rather comprehensive analysis of the constitutional doctrine of prior restraint, the California Supreme Court holds in Balboa Island Village Inn, Inc. v. Lemen, case no. S127904 (April 26, 2007), that speech already proven at trial to be defamatory may be enjoined without running afoul of the First Amendment. Reaching back more than half a millennium to Blackstone’s commentaries as well as evaluating present-day commentaries and U. S. Supreme Court cases, the Balboa Island majority offers a primer on its view of the prior restraint doctrine. The majority draws the line between speech already adjudicated to be unprotected by the First Amendment and that which has not: “In determining whether an injunction restraining defamation may be issued, therefore, it is crucial to distinguish requests for preventive relief prior to trial and post-trial remedies to prevent repetition of statements judicially determined to be defamatory.”

The majority concludes from U. S. Supreme Court decisions upholding injunctions against speech adjudicated to be obscene or in violation of gender discrimination laws that these decisions were consistent in holding that “an injunctive order prohibiting the repetition of expression that had been judicially determined to be unlawful did not constitute a prohibited prior restraint of speech.” Finally, noting that the Sixth Circuit Court of Appeals and the supreme courts of Ohio, Georgia and Minnesota had upheld injunctions against speech already proven to be defamatory, the majority holds that “following a trial at which it is determined that the plaintiff defamed the defendant, the court may issue an injunction prohibiting the defendant from repeating the statements determined to be defamatory.”

The Court nonetheless upholds the Court of Appeal’s decision striking down the injunction, but only because the majority found the injunction too broad. It remanded the case to allow the injunction to be tailored more narrowly and consistent with its opinion.

Justices Kennard and Werdegar, in two solo “concur and dissent” opinions, agree that the injunction should be struck down, but would not remand to allow a more narrowly tailored injunction to replace it. Neither would allow any prior restraint in the absence of a compelling state interest or public policy in tension with free speech rights, and neither found such a competing consideration in this case.

California Anti-SLAPP Statute Does Not Protect Acts in Furtherance of Free Exercise of Religion

When defendants were sued by their neighbors for nuisance arising from smoke and ash entering the neighbors’ properties from fires defendants regularly lit as part of religious rituals in their backyard, they filed a motion to dismiss under the anti-SLAPP statute (Code of Civil Procedure section 425.16). The Court of Appeal affirmed the trial court’s denial of the motion, rejecting the defendant’s contention that section 425.16 was intended to protect acts associated with the free exercise of religion. Section 425.16 “did not import wholesale the protections of the First Amendment.” The statute mentions only two of the rights enumerated in the First Amendment — freedom of speech and the right to petition — and extending the statute to cover religious acts such as the ritual fires would run counter to the legislative intent. The California Supreme Court has issued seven anti-SLAPP decisions since the beginning of last year. Might this eventually be another? The case is Castillo v. Pacheco, 2nd Dist. Ct. of App. case no. B188991 (April 25, 2007).