FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

STEVIE LAMAR FIELDS, 

Petitioner-Appellant,

v. No. 00-99005  D.C. No. JILL BROWN,* Warden, of

California State Prison at San CV-92-00465-DT

Quentin,

Respondent-Appellee. 

STEVIE LAMAR FIELDS, 

Petitioner-Appellee, No. 00-99006

v. D.C. No.

JILL BROWN,* Warden, of  CV-92-00465-DT

California State Prison at San OPINION Quentin,

Respondent-Appellant. 

Appeals from the United States District Court

for the Central District of California

Dickran M. Tevrizian, District Judge, Presiding

Argued and Submitted

June 21, 2005—San Francisco, California

Filed December 8, 2005

*Jill Brown is substituted for her predecessor, Jeanne S. Woodford, as

Warden of California State Prison at San Quentin. See Fed. R. App. P.

43(c)(2). 

15961
Before: Alex Kozinski, Pamela Ann Rymer, and

Barry G. Silverman, Circuit Judges.

Opinion by Judge Rymer

15962 FIELDS v. BROWN
COUNSEL

David S. Olson, Kulik, Gottesman, Mouton & Siegel, Sherman Oaks, California, for the petitioner-appellant/crossappellee. 

FIELDS v. BROWN 15965
Bill Lockyer, Attorney General; Robert R. Anderson, Chief

Assistant Attorney General; Pamela C. Hamanaka, Senior

Assistant Attorney General; Kristofer Jorstad, Deputy Attorney General; and Keith H. Borjon, Supervising Deputy Attorney General, Los Angeles, California, for the respondentappellee/cross-appellant.

OPINION

RYMER, Circuit Judge: 

This case returns to us after remand for an evidentiary hearing to determine whether a juror dishonestly responded to

questions on voir dire and was impartial in light of conversations that the juror had with his wife during the course of the

trial of Stevie Lamar Fields. Fields v. Woodford, 309 F.3d

1095, 1106 (9th Cir.), amended by 315 F.3d 1062 (9th Cir.

2002). The district court found that the juror did not intentionally mislead the trial court on voir dire, and that the juror had

no discussions with his wife during the trial about its subject

matter that affected his ability to be fair and impartial. As

these findings are not clearly erroneous, and largely control

Fields’s claim of ineffective assistance of counsel during the

guilt phase as well, we affirm denial of the writ as to the conviction. This requires us now to resolve penalty phase issues

on which we reserved decision. The district court granted a

writ on account of extrinsic material received by the jury, but

we conclude that Fields has failed to show prejudicial constitutional error in this respect or with regard to his counsel’s

performance. Accordingly, we reverse this part of the judgment. 

I

The details of Fields’s “one-man crime wave,” which

began fourteen days after he was paroled from prison after

15966 FIELDS v. BROWN
serving a sentence for manslaughter, are described in the

opinion of the California Supreme Court on direct appeal,

People v. Fields, 35 Cal. 3d 329, 336-40, 673 P.2d 680, 683-

86 (1983), and our own prior opinion, 309 F.3d at 1098-1100.

Suffice it to say here that in September 1978 Fields went on

a three-week spree during which he robbed and murdered

Rosemary Cobbs, a 26-year-old student librarian at the University of Southern California; robbed Clarence Gessendaner

at gun point and took his car and money; kidnaped, robbed,

raped, forced the oral copulation of, and assaulted Gwendolyn

Barnett; kidnaped and forced the oral copulation of Cynthia

Smith; and finally, kidnaped, robbed, raped, and forced the

oral copulation of Colleen Coates, an 18-year-old USC student. 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 kidnaping, robbery,

forcible oral copulation, and rape of Coates. 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 state

introduced evidence that Fields bludgeoned Allen with a dumbell weight when Allen made homosexual advances. The

defense presented no further evidence. The jury fixed the punishment at death under the 1977 death penalty law. 

The California Supreme Court affirmed Fields’s conviction

and sentence on December 29, 1983. Fields, 35 Cal. 3d at

336, 673 P.2d at 683. After Fields filed a petition for habeas

corpus in the state supreme court claiming ineffective assistance of his trial counsel, Carl Jones, the court appointed a

referee to take evidence and make findings of fact on whether

Jones was ineffective in failing to conduct an adequate investigation at the guilt and penalty phases. Fields submitted a

FIELDS v. BROWN 15967
number of declarations with his petition, and one of the

declarants, Alice Christopher, his maternal aunt, testified at

the hearing. He also presented expert testimony by Dr. James

Missett, a psychiatrist, and by two attorneys, Gerald Chaleff

and Leslie Abramson. The referee found that counsel’s guilt

phase investigation was adequate, but that his preparation for

the penalty phase was not. Applying Strickland v. Washington, 466 U.S. 668, 694 (1984), the California Supreme Court

concluded that the additional evidence adduced at the hearing

did not show a reasonable probability that a more complete

penalty investigation and defense would have resulted in a

different verdict. It therefore denied the petition. In re Fields,

51 Cal. 3d 1063, 800 P.2d 862 (1990). 

Fields filed a 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 in part on the merits and

in part on the procedural ground of untimeliness. When he

filed a second amended habeas petition in district court on

March 31, 1995, the district court dismissed those claims as

procedurally barred. After we reversed, Fields v. Calderon,

125 F.3d 757, 759 (9th Cir. 1997), cert. denied, 523 U.S.

1132 (1998), the parties filed cross-motions for summary

judgment on all claims. The district court upheld Fields’s conviction, but granted the petition as to Fields’s death sentence.

The court ordered the sentence 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. We affirmed on all guilt

phase claims except for the claim of juror bias (and the related

claim of ineffective assistance of counsel), on which we

remanded for an evidentiary hearing. The juror, Floyd Hilliard, and his wife, Diane Hilliard, testified by way of videotaped deposition, as did two other jurors. The district court

found that Hilliard was not dishonest during voir dire, that he

15968 FIELDS v. BROWN
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 (1989). It also

found that the Hilliards had no discussions during trial about

the trial that affected his ability to be fair and impartial. 

Fields renews his appeal on these issues. 

II

A

When responding on voir dire to a question whether he had

ever been a crime victim or witness, arrested or charged with

a crime, or involved in criminal charges or litigation, Hilliard

stated that his “wife was assaulted and beaten, robbed, two

years ago Christmas” in Los Angeles. The judge noted 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.” Counsel asked no questions and Hilliard was empaneled without challenge. 

As it turns out, Hilliard’s wife had been accosted at gunpoint by a young African-American male in his early twenties, bound, blindfolded, driven to a secluded area, beaten,

raped and robbed. It was a traumatic experience for the Hilliards; the person who attacked her threatened to finish her

off, which caused the Hilliards to change the locks on their

house and Hilliard to stand guard with a gun for several

weeks. Her assailant was not apprehended. 

Fields argues that Hilliard’s failure to disclose the crimes

of rape and kidnap against his wife and to reveal his misgivings about serving as a juror, gives rise to McDonough-style

FIELDS v. BROWN 15969
bias1

 on the basis of his untruthfulness in voir dire. Further,

he submits that Hilliard was actually biased and that the hearing on remand shows that Hilliard was impliedly or presumptively biased as well. 

[1] The Sixth Amendment guarantees a criminal defendant

a fair trial, which means, in a case tried to a jury, “a jury capable and willing to decide the case solely on the evidence

before it.” McDonough, 464 U.S. at 554 (quoting Smith v.

Phillips, 455 U.S. 209, 217 (1982)) (internal quotation marks

omitted). A defendant is denied the right to an impartial jury

if only one juror is biased or prejudiced. Dyer v. Calderon,

151 F.3d 970, 973 (9th Cir. 1998) (en banc).2 To obtain a new

trial on account of a juror’s failure to disclose information

during voir dire, “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.” McDonough, 464 U.S.

at 556. As we explained in Dyer, 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.” Dyer, 151 F.3d at

973 (citing McDonough, 464 U.S. at 555-56). Therefore, our

task is to determine whether Hilliard’s answers were dishonest and whether Hilliard’s presence on the jury undermined

the jury’s impartiality. See id. For this purpose we remanded

to the district court for an evidentiary hearing. 

Having held the hearing that we ordered, the district court

found that Hilliard did not respond dishonestly. Considering

the entire record, including declarations that Hilliard had

signed in 1993 and 1995, as well as his demeanor on the vid1McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 554

(1984). 

2

In this circuit, “the presence of a biased juror introduces a structural

defect not subject to harmless error analysis.” Id. at 973 n.2. 

15970 FIELDS v. BROWN
eotape, the district court found that he did not intend to mislead the trial court when he stated that his wife was “assaulted

and beaten, robbed, two years ago Christmas.” Whether a

juror is dishonest is a question of fact, see Dyer, 151 F.3d at

973, and we are not firmly convinced that these findings are

clearly erroneous, see Riley v. Payne, 352 F.3d 1313, 1317

(9th Cir. 2003). 

[2] In testimony credited by the district court, 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, Hilliard would also have said with respect

to the charges involving sexual assault that he could be fair

and impartial and that he doubted that the attack on his wife

would have influenced him. He said he “doubt[ed]” he would

have difficulty being fair and impartial only “because you can

never be sure what’s in the back of your mind.” Hilliard stated

that he told the truth when he told the judge that he would

base his decision strictly on the evidence presented. Hilliard,

who like Fields is African-American, did his best to be a fair

juror, giving Fields the benefit of the doubt when others were

against him, and 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. To the extent Hilliard may have been mistaken

in assuming that being “assaulted” and “beaten,” in the conFIELDS v. BROWN 15971
text of an assault perpetrated on his wife, would be understood as including a sexual assault, 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 denote dishonesty); see also Sanders v.

Lamarque, 357 F.3d 943, 947-48 (9th Cir. 2004) (holding that

a juror was not dishonest for failing to disclose that 25 years

previously she had lived in an area with gang activity). 

[3] In these circumstances, paraphrasing McDonough, to

invalidate the result of a weeks-long trial in state court

because of a juror’s 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. 

464 U.S. at 555. Hilliard was not dishonest in voir dire, and

did not fail to give details for any reason that affected his

impartiality. Accordingly, we see no basis upon which to

invalidate Fields’s conviction on account of McDonough-style

bias. 

We have analyzed juror bias under two theories, actual bias

and implied bias. Actual bias is “ “ ‘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)). The

determination of whether a juror is actually biased is a question of fact, Dyer, 151 F.3d at 973, and we are satisfied that

Hilliard was not actually biased in light of the district court’s

15972 FIELDS v. BROWN
findings. He put aside what happened to his wife and did not

confuse it with what he had to decide about Fields. He truthfully represented that he was impartial. And he did not lie to

conceal bias. The complete record reveals that Hilliard was a

straight-shooter who was in fact a fair and impartial juror. 

[4] This leaves Fields’s claim that Hilliard was, nevertheless, impliedly or presumptively biased. Fields points out that

the standard for implied bias is objective, and that a juror may

be found biased even though the juror himself believes or

states that he can be impartial. See, e.g., Gonzalez, 214 F.3d

at 1111-12. Our review is de novo because implied bias is a

mixed question of law and fact. Id. at 1112. As our last opinion in this case notes, we have previously held that bias may

be implied 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.” 309 F.3d at 1105 (quoting Tinsley v. Borg, 895 F.2d

520, 527 (1990) (quoting Person v. Miller, 854 F.2d 656, 664

(4th Cir. 1988))) (internal quotation marks omitted); United

States v. Allsup, 566 F.2d 68, 71 (9th Cir. 1977) (stating that

bias can be implied from the “potential for substantial emotional involvement, adversely affecting impartiality” inherent

in certain relationships — there, employment by victim bank).

Fields maintains that all the indicia for implied bias are present here because 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 his circumstances (whose wife was

the victim of a recent unsolved crime by a person whom the

defendant resembles and whom the wife suspects could be her

attacker) could be impartial; the incident pertaining to Diane

Hilliard and Hilliard’s subsequent conversations with her during 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. 

FIELDS v. BROWN 15973
Before going there, however, we must first consider the

state’s position that Fields’s claim of implied bias is barred by

the Teague rule against retroactive application by a federal

court of a new rule of constitutional law. In the state’s view,

a reasonable interpretation of precedent when Fields’s conviction was final would not allow a presumption of bias in the

absence of a finding of juror dishonesty. It submits that all but

one case in the universe of implied-bias cases that existed as

of the date Fields’s conviction became final3 involved dishonesty. See McDonough, 464 U.S. at 556; United States v.

Eubanks, 591 F.2d 513, 516 (9th Cir. 1979); Tinsley, 895 F.2d

at 527. The one case that did not turn on dishonesty, Allsup,

566 F.2d at 71, involved two jurors who were related by

employment to the defendant 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 clearly are

not Teague-barred because extrinsic information has long

since implicated the constitutional right to a fair trial. See,

e.g., Remmer v. United States, 347 U.S. 227, 229 (1954). He

also argues that implied bias based on deficient responses to

voir dire questions had been firmly established since no later

than McDonough, which came down ten years before the California Supreme Court denied his juror bias claim. In addition,

Fields points out that the concurring opinions in McDonough,

and our opinion in Allsup, had embraced a standard for

implied bias that does not depend solely on dishonesty. See

464 U.S. at 556-57 (Blackmun, Stevens and O’Connor, JJ.,

concurring); id. at 558 (Brennan and Marshall, JJ., concurring

3This date, for Teague purposes, is October 9, 1984, the date the U.S.

Supreme Court denied certiorari on Fields’s direct appeal. See Fields v.

California, 469 U.S. 892 (1984); see also Snook v. Wood, 89 F.3d 605,

612 (9th Cir. 1996) (explaining when a conviction becomes final for

Teague purposes). 

15974 FIELDS v. BROWN
in the judgment);4 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). 

Teague requires us to survey the legal landscape as of the

time the petitioner’s conviction became final to see whether

the rule that he advocates was dictated or compelled by exist4

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 (Blackmun, J., concurring). Justice Blackmun cited to

Justice O’Connor’s concurring opinion in Smith v. Phillips, 455 U.S. 209

(1982), where she suggested that bias may be presumed when, for 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

(O’Connor, J., concurring). 

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 (Brennan, J., concurring in the judgment). He would also have recognized that bias may be

actual or implied (conclusively presumed as a matter of law), and accordingly, disagreed with the Court “that a new trial is not warranted whenever

a prospective juror provides an honest answer to the question posed.” Id.

at 558-59. 

FIELDS v. BROWN 15975
ing precedent. Leavitt v. Arave, 383 F.3d 809, 816 (9th Cir.

2004) (per curiam). 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 (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. Moreover, Justice O’Connor has expressed

the view that implied bias should only be presumed in “extreme” or “extraordinary” cases. See Phillips, 455 U.S. at

222-23 & n.* (O’Connor, J., concurring); see also Tinsley,

895 F.3d at 527 (quoting same). Examples she gave were of

“a revelation that the juror is an actual employee of the prosecuting agency, that the juror is a close relative of one of the

participants in the trial or the criminal transaction, or that the

juror was a witness or somehow involved in the criminal

transaction.” Phillips, 455 U.S. at 222 (O’Connor, J., concurring). McDonough, of course, held that a party must demonstrate that a juror failed honestly to answer a voir dire

question that is material to impartiality before a trial result

could be invalidated. 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.

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, 309

F.3d at 1105 (“Beyond what these cases indicate, it is an open

15976 FIELDS v. BROWN
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. There, two prospective jurors were employed by a different branch of the

same bank that the defendant was accused of robbing. We

held, on direct appeal, that the defendant’s motion to excuse

the jurors for cause should have been granted because the bias

of those who work for the bank should be presumed. The

jurors had honestly disclosed their employment and stated that

they could try the case fairly, but we nevertheless presumed

bias on account of their employment relationship with the

robbed bank and their “reasonable apprehension of violence”

from bank robbers. 566 F.2d at 71-72. Given Allsup, it is difficult to conclude that it would have been a new rule of constitutional law in 1984 to presume bias despite an honest

disclosure of a potentially disqualifying relationship in voir

dire. 

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), abrogated on other grounds by Mancuso v.

Olivarez, 292 F.3d 939 (9th Cir. 2002). 

Teague aside, it is well accepted that bias may be presumed

only in “extreme” or “extraordinary” cases. As we emphasized in Tinsley, “[p]rudence 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. And, as we also explained, “[i]nstead

of formal categorization, the Supreme Court has emphasized

the existence of safeguards against actual bias.” Id. at 527-28.

FIELDS v. BROWN 15977
“In most situations, voir dire, ‘the method we have relied

on since the beginning,’ should suffice to identify juror bias.”

Id. at 528 (quoting Patton v. Yount, 467 U.S. 1025, 1038

(1984)). This is because truthful disclosure of information

during voir dire sets up a challenge for cause (or in less clearcut 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.5 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 a critical factor. As McDonough indicates, “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. 

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 juror’s experiences

and the events giving rise to the trial, the juror had not been

5As the Supreme Court elaborated in McDonough, voir dire serves to

protect the right to an impartial trier of fact — “ ‘a jury capable and willing to decide the case solely on the evidence before it,’ ” — “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’s 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 (quoting Phillips,

455 U.S. at 217). 

15978 FIELDS v. BROWN
forthcoming 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, 241

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 a 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 person,” Tinsley, 895 F.2d at 528, we have never actually presumed bias

from any such relationship when the juror was forthcoming

on voir dire. 

[5] We need not reach whether dishonesty is required for

an implied bias claim because we can 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 a close family member or friend with similar

experiences. 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 after trial, the remedy is a post-trial hearing. Here, that

hearing showed no actual effect on Hilliard’s ability to be fair

and impartial. 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.6 It cannot be said that everyone

6

See United States v. Powell, 226 F.3d 1181, 1189 (10th Cir. 2002)

(holding that juror whose daughter had been raped was not impliedly

FIELDS v. BROWN 15979
in Hilliard’s position would necessarily be prejudiced whether

he acknowledged it or not. 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, how the individual handles

it, and so forth. Given Hilliard’s honest 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. 

B

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. 

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 husbiased 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 v. United States, 339

U.S. 162, 171 (1950)). 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); Torres v. United States, 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). 

15980 FIELDS v. BROWN
band was a juror on a case involving a young, AfricanAmerican male who had abducted and shot someone. She did

not know if Fields’s case involved rape charges. From what

she knew Mrs. Hilliard thought it was a possibility that Fields

might be the man who assaulted her; she told her husband

this, and said that she would like to go to court to see if he

were. Hilliard thought his wife was a little paranoid, told her

he doubted Fields was the man who attacked her (Hilliard testified that it never crossed his mind that Fields was the person

who assaulted his wife), and refused to let her come to the

trial because he did not want her to compromise the trial or

him as a juror, and did not want her to go through any psychological problems or trauma as a result of seeing the trial. 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. Accordingly, it concluded that Fields’s claim under

Remmer v. United States, lacked merit. See Remmer, 347 U.S.

229. 

We agree. 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 his 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, which

are supported in the record. The court found Hilliard credible,

which means that he did not discuss the Fields trial beyond

saying what kind of case it was, he did not buy his wife’s

FIELDS v. BROWN 15981
speculation about Fields’s being her assailant, he did not confuse the Fields case with the crimes against his wife, and

nothing discussed with his wife affected his ability to be fair

and impartial. 

It is Hilliard’s impartiality that matters, not his wife’s. We

agree with the district court’s conclusion that to the extent the

Hilliards had discussions relating to the case, they were harmless, as the conversations did not affect Mr. Hilliard’s ability

to be fair and impartial. 

III

In a related claim, Fields maintains 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 (1984), Fields must show that his “counsel’s performance was deficient” and “that the deficient performance

prejudiced the defense.” Id. at 687. As we observed in our

prior opinion, “it is tough to imagine why [Jones] did not pursue what kind of assault Hilliard’s wife suffered, given that

the non-capital charges against Fields included rape.” Fields,

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 or not is immaterial, for Fields

was not prejudiced. Strickland, 466 U.S. at 697 (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. 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 an unbiased

juror with another unbiased juror should not alter the outcome. 

[6] As we have previously addressed all other claims having to do with the guilt phase, and we now resolve the juror

15982 FIELDS v. BROWN
bias issues in favor of the state, we affirm the judgment

entered on Fields’s conviction. 

IV

Fields contends that his counsel also rendered ineffective

assistance at the penalty phase in two respects: first, because

he failed to investigate, obtain, and present mitigating evidence, especially about Fields’s background that was marked

by domestic violence, abuse, and poverty; and second,

because he failed to investigate and present potential psychiatric evidence based on the adverse conditions of Fields’s childhood and possible organic brain impairment. On account of

this failure, Fields submits that the court-appointed psychiatrists did not have a complete picture of his emotional and

mental deficits when evaluating him. 

A

The facts are fully set out in the California Supreme

Court’s opinion on Fields’s habeas petition, In re Fields, 51

Cal. 3d at 1071-74, 1076, 800 P.2d at 866-70, but in summary: 

Carl Jones was appointed to represent Fields. Although

Jones was an experienced criminal defense attorney, this was

his first capital case. Prior to trial, the court appointed two

psychiatrists, Drs. Franklin Drucker and Ronald Markman, to

examine Fields. Drucker was unable to complete his examination as Fields refused to be interviewed; Markman submitted

an expert report in which he opined that Fields had an “antisocial personality,” was unable to conform his conduct to legal

requirements, and was therefore legally insane. Fields’s counsel also obtained the psychiatric evaluation prepared by Dr.

Tommy Bolger for the California Adult Authority at the time

Fields was convicted of manslaughter. 

FIELDS v. BROWN 15983
After counsel added a plea of not guilty by reason of insanity, the court appointed two additional psychiatrists to evaluate Fields. Drs. Donald Trockman and Saul Faerstein agreed

with Dr. Markman’s diagnosis of antisocial personality disorder, but concluded that Fields was not insane because he was

capable of conforming his behavior to legal requirements. At

the sanity phase, Markman opined that Fields suffered from

antisocial personality disorder and that he lacked substantial

capacity either to appreciate the criminality of his conduct or

to conform his conduct to the requirements of law. This met

the definition of insanity under the American Law Institute

test then in use in California. However, Markman testified on

cross-examination that if “mental disease or defect” under a

subsection of the ALI test does not include an abnormality

manifested only by repeated antisocial conduct, Fields would

not be insane. Faerstein and Trockman both said that Fields

had an antisocial personality disorder but was capable of conforming to legal requirements. The jury found that Fields was

sane.7

The penalty phase began a few days later. The parties stipulated that Fields was previously convicted of the voluntary

manslaughter of Albert Allen. The prosecutor’s opening statement consisted of four sentences advising the jury about

Fields’s prior manslaughter conviction and of his release from

prison 15 days before the Cobb murder; Fields’s counsel

made no opening statement. The prosecution called one witness, Joseph Freia, who was the investigating officer in the

Allen manslaughter case. Freia testified that Fields admitted

to killing Allen by striking him in the head with a dumbbell

weight numerous times after Allen made a homosexual

advance. Freia also identified a photograph of Allen’s body

taken shortly after the killing as well as a dumbbell that he

7The California Supreme Court approved the trial judge’s instruction

that mental disease or defect does not include antisocial conduct, and

upheld the jury’s finding on appeal. Fields, 35 Cal. 3d at 368-72, 673 P.2d

at 705-08. 

15984 FIELDS v. BROWN
testified was similar in size and shape to the one Fields used

on Allen. The defense put on no witnesses. 

The prosecutor gave a brief closing argument that reviewed

the evidence on aggravating factors, and maintained that the

jury should not accept a defense plea for mercy as no other

circumstances extenuated the gravity of Fields’s ruthlessly

smashing Barnett’s head, putting Smith through a night of terror, driving Coates to jump out of a second-story window to

escape his wrath, bashing Albert Allen’s head, and taking

Cobb’s life while she was crying out for God. Jones’s closing

argument focused on the theme that Fields had no supportive

family or friends. He argued that there was lingering doubt

about the Cobb murder; that Fields was a young man who

used PCP when he was released from prison and was under

its influence; that Dr. Markman was of the opinion Fields was

insane and suffering from a psychiatric disorder; that Fields

was a man who the testimony of various doctors indicated had

never known his father, that his mother was never there, and

that his sister struck a deal to testify against him; and that

revenge, which is what the prosecutor wants, can be had by

life without the possibility of parole instead of by killing

Fields. The jury returned a verdict of death. 

The California Supreme Court affirmed on direct appeal

and after the United States Supreme Court denied Fields’s

petition for certiorari, he filed a petition for habeas corpus

with the California Supreme Court raising both ineffective

assistance claims. The petition appended declarations by several family members and friends of the family indicating that

Fields’s father was an alcoholic who beat him when he was

a child; that Fields had a terrible skin rash when he was

young; that Fields’s mother paid no attention to him; that

Fields was always picked on as a child until he started fighting for himself; and that Fields was molested by an uncle

when he and his brother were staying with the uncle in Texas.

The California Supreme Court appointed the Honorable

George Dell, retired judge of the Los Angeles Superior Court,

FIELDS v. BROWN 15985
as referee to take evidence and make findings of fact on the

question: “Was defendant’s conviction or death sentence

unconstitutionally obtained in that defendant was deprived of

his right to effective assistance of counsel by counsel’s failure

to conduct an investigation adequate to permit the selection,

preparation and presentation of evidence at the guilt and penalty trials?” In re Fields, 51 Cal. 3d at 1068, 800 P.2d at 864.

At the hearing (held in June 1987), Dr. James Missett, a

psychiatrist, testified that Fields’s medical records, psychiatric

evaluations, statements by significant persons in his life, and

school records warranted further investigation and provided a

factual basis for a “monumentally different” image of Fields

from that presented by the prosecution. He noted that interviews of family members suggested the possibility that Fields

had experienced a seizure at the age of nine when he lost consciousness after his father, who had been known to beat him

in the past, struck him in the head. Missett also believed that

blood loss and head trauma from a stabbing incident may

have aggravated a pre-existing brain disorder. According to

Missett, establishing organic brain impairment would significantly mitigate the special circumstance of robbery-murder

and explain why Fields acted in a manner that appeared to be

cold, callous, and calculating. 

In rebuttal, Dr. Faerstein testified that it remained his opinion that Fields had no significant organic brain disorder even

after reviewing the Markman, Missett, and Trockman reports;

Dr. Missett’s oral testimony; Fields’s school records; and a

Buffalo social worker’s family assessment report. 

Fields’s aunt, Alice Christopher, testified at the hearing.

She lived with the Fields family for six months in Buffalo,

New York, when Fields was two, and in the neighborhood

until he moved to California in 1973 at the age of 15. She said

that the Fields family was characterized by verbal abuse,

domestic violence, emotional neglect and intoxication. Christopher testified that Fields suffered from a severe body rash

15986 FIELDS v. BROWN
that caused him to bleed and cry out in pain from the ages of

two to six; that he was a slow learner who was subjected to

ridicule; and that he was a sensitive child who loved and protected his mother but had a difficult childhood. At age nine he

began to steal to please his mother, and both parents accepted

the proceeds. Christopher also indicated that Fields had psychological treatment around the age of twelve, and had been

in a boy’s home for stealing. 

Gerald Chaleff, a criminal law specialist, expressed the

opinion that Jones had failed adequately to investigate

Fields’s personal and psychological history. Leslie Abramson,

also experienced in the defense of capital cases, likewise

described the kind of investigation that she believed should

have been undertaken, but was not. In her view, this would

have included interviewing Fields’s family and friends in Buffalo; investigating his psychiatric history in Buffalo, prior

juvenile convictions, drug use, and possible organic brain

damage which would have described Fields more sympathetically than “antisocial personality”; contacting a social worker

about the negative effect that Fields’s parents had on him;

developing the theme that Fields’s parents exploited and

physically abused him; investigating positive aspects of

Fields’s personality as a small child, and the rash; obtaining

his school records to show sluggish development; and investigating Fields’s sexual victimization by a male relative. 

Jones testified that he had interviewed Fields’s mother and

some family members in Los Angeles. The interviews related

primarily to issues of guilt. He decided not to call Fields’s

mother or sister in the penalty phase because both had

accepted money or property from Fields that they knew he

had stolen, and his mother had shown up at his preliminary

hearing wearing a blouse belonging to one of the victims.

Other members of Fields’s immediate family were also implicated in his criminal activities. Jones considered calling

Fields’s father, but Fields told him that they had had no contact since early childhood. Although in hindsight he would

FIELDS v. BROWN 15987
have gone to Buffalo and interviewed family and friends who

knew Fields as a child, Jones testified that he would nevertheless not have used information thereby adduced for the habeas

petition, or called the declarants at trial, because it would have

been ineffective and would have defeated the point he was

trying to make — that Fields didn’t have anybody to guide or

support him — which he believed was the best argument

available. 

The referee found that counsel’s investigation into Fields’s

mental health, while not as extensive as it might have been,

was adequate to meet minimum standards because the psychiatric experts were in agreement that Fields suffered from an

antisocial personality. The California Supreme Court agreed

that counsel’s actions in this respect constituted a reasonable

and consistent trial strategy. However, the referee found that

Fields did establish that the procedures used to investigate

penalty phase evidence in mitigation fell below minimum

standards. This latter finding was based on Jones’s failure to

interview relatives who were not involved in Fields’s criminal

activities, to conduct any investigation in Buffalo, and to put

on any witnesses during the penalty phase. The referee made

findings only on the deficiency prong, not on the prejudice

prong, although evidence was received on this point at the

hearing. Based on that evidence, which was substantially

undisputed, the California Supreme Court concluded that it

was not necessary to determine whether Jones’s failure to

investigate further was a reasonable tactical choice, because

Fields failed to prove prejudice under the Strickland standard.

The state supreme court found that Fields was not prejudiced for three basic reasons. First, this was one of the most

aggravated murder-with-special- circumstance cases to come

before the court. In re Fields, 51 Cal. 3d at 1079, 800 P.2d at

872. Fields had already been convicted of one killing before

he embarked on his “one-man crime wave” immediately after

being released from prison. He kidnaped the murder victim

and took her to his house where witnesses saw her, naked and

15988 FIELDS v. BROWN
bound, in Fields’s bedroom. He forced her to write a check

for the balance in her checkbook then shot and killed her. He

stole a car at gunpoint, kidnaped two prostitutes, raped both

of them and severely beat one of them, breaking her jaw with

the handle of a gun in the process. Fields then kidnaped

another woman, stole her car, took her to his house, raped her,

and tried to get money from her checking account. Thus, the

evidence showed a pattern of criminal behavior that included

a murder and at least three kidnapings, rapes, and robberies

within a three-week period of time. Second, Fields’s proof at

the reference hearing was limited to Christopher’s testimony

and experts who relied on out-of-court declarations that were

untested by cross-examination and were of questionable truthfulness. The declarations themselves were not offered into

evidence. Hence, the showing of what the penalty phase

would have been like with adequate investigation was not

strong enough to overcome the aggravating evidence. And

third, evidence of Fields’s history, background and mental

condition came in at the sanity phase and so the jury already

knew much of the information that would normally not be

introduced until the penalty phase. As it was, the evidence

showed a mentally disturbed person who used drugs, lacked

parental support and guidance, and whose mother and sister

were both implicated in his crimes. The additional evidence

would have shored up this picture, but in light of the evidence

that was actually before the jury, the state supreme court reasonably did not find that the additional evidence that might

have been discovered would have altered the outcome. 

The district court presumed the state supreme court’s findings of fact after the evidentiary hearing to be correct pursuant

to 28 U.S.C. § 2254(d) (1966).8 It noted that the aggravating

8Another series of declarations were filed after the reference hearing.

The declarations were made between April 1993 and January 1994; they

were appended to Fields’s second (exhaustion) petition filed in the California Supreme Court. They provide substantially the same information as

the declarations submitted in connection with Fields’s original habeas

FIELDS v. BROWN 15989
evidence was extensive and powerful, whereas the mitigating

evidence presented by Fields at the state evidentiary hearing

was not particularly compelling in light of the aggravating

evidence. The district court agreed with the California

Supreme Court’s holding and itself found no reasonable probability that the jury would have concluded that the balance of

the aggravating and mitigating evidence did not warrant the

death penalty if Jones had presented the evidence that Fields

contends should have been presented. It also agreed with the

supreme court that Jones’s representation was not constitutionally infirm because he made reasonable strategic decisions

about mental health evidence in light of the law at the time;

the district court additionally held that Fields failed to establish prejudice because even if an expert could have been

found to testify that Fields suffered from organic brain damage, the evidence presented at the hearing was not persuasive

and would have been rebutted by the three experts who actually testified. 

B

Fields faults both the California Supreme Court and the district court for “dodging” the issue of counsel’s deficient performance, but both quite properly determined the issue of

prejudice first. As Strickland instructs, “a court need not

determine whether counsel’s performance was deficient

before examining the . . . result of the alleged deficiencies. . . .

If it is easier to dispose of an ineffectiveness claim on the

ground of lack of sufficient prejudice, which we expect will

often be so, that course should be followed.” 466 U.S. at 697.

Beyond this, he contends that prejudice was patent because no

petition in the supreme court, albeit in somewhat greater detail and from

additional sources. Like the initial series, the 1993/1994 declarations were

not part of the record at the state evidentiary hearing. See Keeney v.

Tamayo-Reyes, 504 U.S. 1, 7-10 (1992). Fields has never argued that any

of the circumstances set out in 28 U.S.C. § 2254(d)(1)-(8) (1966) are present. 

15990 FIELDS v. BROWN
mitigating evidence was proffered, which left the jury with no

choice but to impose the death penalty; it enabled the prosecutor to argue that “[p]lain and simple, there are [no mitigating

factors]”;9 and specific mitigation evidence has a substantial

impact on jurors. 

[7] We are not persuaded that the trial which Fields supposes should have occurred would have produced a different

outcome. In short, we agree with the analysis of the California

Supreme Court and the district court. While Fields’s childhood as described by Christopher was undoubtedly grim, the

jury already knew something of his background, what his

mother and sister were like, and that he had psychological and

emotional difficulties. It is not reasonably probable that Christopher’s description of the skin rash that Fields suffered from

age two until he was six, or his father’s alcoholism and verbal

abuse against the children, the domestic violence Fields witnessed, the filthy house in which he grew up, his poverty, or

parental neglect — deplorable though all are — would outweigh one of the most aggravated crime sprees in the memory

of the California Supreme Court.10 Cf. Stankewitz v. Wood9The prosecutor stated: 

Finally, any other circumstance which extenuates the gravity of

the crime, even though it is not a legal excuse for the crime?

Plain and simple, there are none. When the defendant comes up

here through his counsel and asks you for mercy, think of the

mercy that he gave to Gwendolyn Barnett, whose head he so

ruthlessly smashed; and Cynthia Smith, who he put through a

night of terror; Colleen Coates, who was willing to jump out of

a second-story window to escape the defendant’s wrath; to Albert

Allen, whose head was brutally smashed and bashed by the

defendant; and, yes, to Rosemary Cobb, who, in crying out for

her God, defendant took the life, shooting her numerous times at

contact range and beating her head, who lived for ten to fifteen

minutes after that. 

10Christopher’s testimony would not have been entirely sympathetic, as

she also testified that Fields had been in juvenile court once or twice, was

put into a boys’ home for stealing at the age of 11 or 12, had robbed a tavern when he was 15 and was involved in at least one fight, when he was

16, during which he was stabbed in the neck. 

FIELDS v. BROWN 15991
ford, 365 F.3d 706, 718, 723 (9th Cir. 2004) (holding deficiency was prejudicial when evidence would have shown that

Stankewitz was severely beaten by his mother as a child, was

sexually molested while under the care of the state, was

unable to use eating utensils or engage in rudimentary social

graces, and would wet his bed and smear feces on the wall of

his bedroom upon leaving the state’s care as a child, and suffered organic brain damage); Mayfield v. Woodford, 270 F.3d

915, 929-32 (9th Cir. 2001) (en banc) (holding deficient performance was prejudicial in light of testimony at evidentiary

hearing indicating witnesses would have testified at trial

regarding Mayfield’s childhood diabetes and associated hardships, diagnoses of childhood depression, drug use and exacerbation drugs would have had on existing psychological

ailments, and positive things Mayfield did in his life). 

[8] Fields’s position in a nutshell is that the fact “that the

aggravating evidence was ‘extensive and powerful’ . . . only

demonstrates that counsel’s failures were so prejudicial.” We

understand his point, that powerful aggravating evidence calls

for powerful mitigating evidence, but this simply restates the

deficiency inquiry. It begs the prejudice question of whether

the evidence that could have been adduced with proper investigation (that is, if counsel had not been deficient) would, if

presented at trial, have been persuasive enough to outweigh

the aggravating evidence. When, as here, the aggravating evidence is powerful, the mitigating evidence that would have

been produced at trial following a proper investigation must

be sufficiently compelling to undermine confidence in the

outcome. See Boyde v. Brown, 404 F.3d 1159, 1179 (9th Cir.)

(“Our prejudice inquiry must focus on whether the result

would have been different in light of the evidence that would

have been presented to the jury had [the petitioner’s] counsel

not been deficient.”), amended by 421 F.3d 1154 (9th Cir.

2005). It was to determine what the new mix would look like

that the evidentiary hearing was ordered by the California

Supreme Court.11 Based on the record that was produced in

11As the state supreme court explained: 

In a habeas corpus petition alleging incompetent investigation or

15992 FIELDS v. BROWN
that hearing, the state supreme court concluded that Fields

failed to establish prejudice on account of counsel’s failure to

investigate his childhood adequately. We cannot conclude

otherwise. 

[9] Nor can we disagree with the state supreme court’s

determination that counsel’s performance was not deficient

with respect to investigating Fields’s mental condition. Three

psychiatrists agreed that he had an antisocial personality disorder. Fields’s experts were well-qualified, and neither suggested to counsel that further examination or expert

consultation was necessary. Cf. Hendricks v. Calderon, 70

F.3d 1032, 1038 (9th Cir. 1995) (“In general, an attorney is

entitled to rely on the opinions of mental health experts in

deciding whether to pursue an insanity or diminished capacity

defense.”). Fields’s argument that adequate investigation

would have yielded more accurate information is well taken

in the abstract, but again, falls short in light of the facts reliably found in the evidentiary hearing. While Chaleff and Dr.

Missett testified at the evidentiary hearing that interviews

Jones failed to conduct raised the possibility of a “passive

dependent” personality and some organic brain impairment,

the state supreme court found that this would have been dispresentation of evidence by trial counsel, a petitioner generally

cannot expect to establish a case for relief solely by relying on

testimony, expert or otherwise, describing what evidence might

have been discovered and produced by competent counsel.

Instead, he must generally produce that evidence so the credibility of the witnesses can be tested by cross-examination. (If the

prosecution claims it could have refuted that testimony by rebuttal evidence, it may also have to produce the witnesses to prove

its claim.) In effect, the petitioner must show us what the trial

would have been like, had he been competently represented, so

we can compare that with the trial that actually occurred and

determine whether it is reasonably probable that the result would

have been different. 

In re Fields, 51 Cal. 3d at 1071, 800 P.2d at 866. 

FIELDS v. BROWN 15993
puted by experts relying on Fields’s criminal record to support a diagnosis of antisocial personality. Further, Dr.

Trockman conducted a Bender-Gestalt test for organic brain

disease before trial and informed Jones that the test did not

demonstrate the existence of any such disease. Although Missett opined that the test should be redone, Jones cannot be

faulted for accepting Trockman’s opinion. Harris v. Vasquez,

949 F.2d 1497, 1525 (9th Cir. 1990) (“It is certainly within

the ‘wide range of professionally competent assistance’ for an

attorney to rely on properly selected experts.”); see also Williams v. Woodford, 384 F.3d 567, 611 (9th Cir. 2004) (holding counsel’s decision not to investigate mental defense

further was reasonable in light of conclusions of mental health

experts). Finally, Dr. Faerstein testified at the hearing that he

saw no reason to change his opinion, expressed at trial, that

Fields did not suffer from organic brain damage. That he and

Dr. Missett disagree does not mean that trial counsel was deficient. 

V

Finally, Fields claims prosecutorial misconduct arising

from the prosecutor’s statement during the penalty phase closing argument that the jury should think of the mercy Fields

showed his victims, and that the death penalty was appropriate in light of the Allen homicide. We disagree. Attorneys are

given wide latitude during closing arguments. See United

States v. Vaccaro, 816 F.2d 443, 451 (9th Cir. 1987), abrogated on other grounds by Huddleston v. United States, 485

U.S. 681 (1988)). The prosecutor’s argument was based on

evidence the jury could properly consider as aggravating

under California law and the instructions. See Cal. Penal Code

§ 190.3(a) (instructing that jurors should consider “[t]he circumstances of the crime of which the defendant was convicted in the present proceeding”); id. § 190.3(b) (instructing

jurors to consider prior violent criminal acts committed by the

defendant). 

15994 FIELDS v. BROWN
VI

The state cross-appeals the district court’s decision to grant

relief on Fields’s claim of juror misconduct based on the

jury’s use of Biblical quotations and dictionary definitions. 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; it 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. 

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.12 White also consulted a dictionary for

12The “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” 

FIELDS v. BROWN 15995
definitions of the words “extenuation,” “vindication,” and

“mitigate,” and brought these notes to the jury room as well.13

• “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” 

13The 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 

15996 FIELDS v. BROWN
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 its

verdict. 

Fields first raised the issue of juror misconduct in his federal petition. He presented a number of juror declarations that

the district court ultimately struck to the extent that the information contained in them was inadmissible under Rule 606(b).14

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). However,

“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, diminish, decrease, curtail quality, limit, narrow,

assuage. 

14Rule 606(b) provides: 

Upon an inquiry into the validity of a verdict or indictment, a

juror may not testify as to any matter of 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, except that a juror may testify on the question

whether extraneous prejudicial information was improperly

brought to the jury’s attention or whether any outside influence

was improperly brought to bear upon any juror. Nor may a juror’s

affidavit or evidence of any statement by the juror concerning a

matter about which the juror would be precluded from testifying

be received for these purposes. 

FIELDS v. BROWN 15997
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, and directly related to a material aspect of the

case. See Lawson v. Borg, 60 F.3d 608, 612 (9th Cir. 1995)

(identifying the factors to consider in determining whether

jury exposure to facts not in evidence deprives a defendant of

his Sixth Amendment rights to confrontation, crossexamination and assistance of counsel as “(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” (alterations in original)

(quoting Bayramoglu v. Estelle, 806 F.2d 880, 887 (9th Cir.

1986))).15 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. 

15Other facts we have considered that might suggest that 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) (quoting Jeffries v.

Wood, 114 F.3d 1484, 1491-92 (9th Cir. 1997) (footnotes omitted)) (internal quotation marks omitted). 

15998 FIELDS v. BROWN
Before considering anything else, we must first decide the

Teague issue. Caspari v. Bohlen, 510 U.S. 383, 389 (1994)

(instructing that if a state argues that the district court granted

a habeas petition on the basis of a new rule of constitutional

law that is Teague-barred, a court must address the Teague

issue first); Leavitt, 383 F.3d at 816 (same). The state’s position is that as of the time Fields’s sentence became final, law

binding on state courts allowed jurors 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 (1994)

(quoting Zant v. Stephens, 462 U.S. 862, 875 (1983)). The

state also points out that as of then, it was established law that

a capital jury “express[es] the conscience of the community

on the ultimate question of life or death.” Witherspoon v. Illinois, 391 US. 510, 519 (1968). While these propositions are

no doubt so, 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.” See Mattox v. United

States, 146 U.S. 140, 149 (1892). The district court’s ruling

cannot be Teague-barred at this level of generality. 

[10] In addition, the Sixth Amendment inquiry is factspecific. 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 kind of common

knowledge which most jurors are presumed to possess.”

Rodriguez v. Marshall, 125 F.3d 739, 745 (9th Cir. 1997),

overruled on other grounds, Payton v. Woodford, 299 F.3d

815, 828-29 & n.11 (9th Cir. 2002) (en banc); 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”). Although the

state maintains that Fields must cite authority binding on California courts at the time his sentence became final which held

that it was a constitutional violation to bring Bible quotations

FIELDS v. BROWN 15999
and dictionary definitions into the jury room during penaltyphase deliberations, 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. 

[11] Turning, then, to the merits, we disagree with the district court’s assumption that the Biblical references are extrinsic, factual material. It did not explicitly decide whether the

Bible verses in White’s notes were common knowledge or

extrinsic facts. Certainly Biblical verses are not the sort of

material that should have been made part of the record. But

Bible verses nevertheless are common knowledge in the sense

that they are part of the pool of information that many people

possess. While some verses may be more familiar than others,

White’s “for” references all expound on the well-known

themes of “an eye for an eye” and “he who lives by the sword,

shall die by the sword.” Fields nowhere suggests that White

was not free to recite these verses or resort to their reasoning

in support of whatever position he took. See McDowell v. Calderon, 107 F.3d 1351, 1367 (9th Cir. 1997) (holding juror

declaration about the conduct of deliberations inadmissible

under Rule 606(b) and noting that “[t]he type of afteracquired 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 the case”). Sharing notes is not constitutionally

infirm if sharing memory isn’t. Jurors may be screened for

bias but otherwise should not be expected to leave their life

experiences and general knowledge behind. 

[12] To the extent that White’s notes are extrinsic or

improper, however, cases where we have found that extrinsic

material had a substantial and injurious effect on a verdict are

16000 FIELDS v. BROWN
of a different order of magnitude.16 We have found prejudice

when, for example, the jury discussed an extra-record telephone call that directly related to the defendant’s motive, Sassounian, 230 F.3d at 1110; when a juror told others about the

defendant’s reputation for violence, Lawson, 60 F.3d at 612-

13; and when the jury learned that the defendant had committed a prior armed robbery, Jeffries v. Blodgett, 5 F.3d 1180,

1191 (9th Cir. 1993). White’s Bible verses are not of this sort;

they are not, in fact, facts at all. As Justice Stevens put it,

“While the question of innocence or guilt of the offense is

essentially a question of fact, the choice between life imprisonment and capital punishment is both a question of underlying fact and a matter of reasoned moral judgment.” Sawyer v.

Whitley, 505 U.S. 333, 370 (1992) (Stevens, J., concurring in

the judgment). 

[13] At the same time, as Fields correctly points out, we

have held that 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. Sandoval

v. Calderon, 241 F.3d 765, 776 (9th Cir. 2000). However, the

prosecutor is constrained in ways that a juror is not. As we

explained in Sandoval, there 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 extrajudicial 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 prejudi16See Sassounian, 230 F.3d at 1108 (adopting the standard of review for

harmless error of Brecht v. Abrahamson, 507 U.S. 619, 623 (1993), for

unconstitutional juror misconduct). 

FIELDS v. BROWN 16001
cial when said by a prosecutor may not be so when said by

a juror. 

[14] Whether or not White 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. There was plenty of time for jurors

to sort through the evidence and to reflect on whether the ultimate penalty was the right penalty. The aggravating evidence

is powerful, as all judges to review it have remarked.

Although closing argument for the defense might have been

more persuasive if backed up by more details in the evidence,

it nevertheless made a forceful case for mitigation on account

of Fields’s youth, lack of familial support and guidance,

insanity, drug use, and lingering doubt. Nothing in the record

indicates that the jurors did not follow the instructions on the

law as given by the trial judge. Accordingly, we see no constitutional error that requires the writ to be granted on account

of the juror’s references to scripture.17

[15] 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.

However, whether or not it was misconduct 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. 

17For this reason we do not reach the state’s remaining arguments for

reversal. 

16002 FIELDS v. BROWN
VII

We hold that Fields was not deprived of an impartial jury

and therefore the district court’s judgment on his conviction

is affirmed. Even assuming that trial counsel was deficient in

preparing for the penalty phase by not interviewing friends

and family in Fields’s hometown, Fields was nevertheless not

deprived of the effective assistance of counsel in violation of

the Sixth Amendment because there is no reasonable likelihood that the mitigating evidence that could have been produced at trial would have outweighed the aggravating

evidence of a crime spree involving three kidnapings, three

rapes, four robberies, and one murder within a couple of

weeks of release from prison for another homicide. Counsel

was not deficient and neither was Fields prejudiced by the

investigation into his mental condition. To this extent we also

affirm the district court’s judgment. However, we conclude

that juror misconduct, if it occurred, had no substantial or

injurious effect on the verdict. To this extent, the district

court’s judgment is reversed. In sum, we see no prejudicial

error, nor any cumulative error, requiring the writ to issue. 

AFFIRMED IN PART; REVERSED IN PART. 

FIELDS v. BROWN 16003