FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TARA SHENEVA WILLIAMS,
Petitioner-Appellant,
No. 07-56127
v.
JAVIER CAVAZOS, Acting Warden of D.C. No.
CV-03-02691-GW
the Central California Women’s
OPINION
Facility in Chowchilla, California,
Respondent-Appellee.
Appeal from the United States District Court
for the Central District of California
George H. Wu, District Judge, Presiding
Argued and Submitted
August 2, 2010—Pasadena, California
Filed May 23, 2011
Before: Alex Kozinski, Chief Judge, Stephen Reinhardt,
Circuit Judge, and Ronald M. Whyte,
Senior District Judge.*
Opinion by Judge Reinhardt
*The Honorable Ronald M. Whyte, United States District Judge for the
Northern District of California, sitting by designation.
6697
6700 WILLIAMS v. CAVAZOS
COUNSEL
Kurt David Hermansen, San Diego, California, for the
petitioner-appellant.
Stephanie C. Brenan, Deputy Attorney General, Los Angeles,
California, for the respondent-appellee.
WILLIAMS v. CAVAZOS 6701
OPINION
REINHARDT, Circuit Judge:
Consider two scenes:
Scene One
Juror #8: I just want to talk.
Juror #7: Well, what’s there to talk about? Eleven
men in here think he’s guilty. No one had
to think twice about it except you.
Juror #10: I want to ask you something: do you
believe his story?
Juror #8: I don’t know whether I believe it or not
— maybe I don’t.
Juror #7: So how come you vote not guilty?
Juror #8: Well, there were eleven votes for guilty.
It’s not easy to raise my hand and send
a boy off to die without talking about it
first. . . . We’re talking about some-
body’s life here. We can’t decide in five
minutes. Supposin’ we’re wrong.
Scene Two
Juror #6: I said . . . this is a very important case
and we should be very convinced that if
the defendant is found guilty that it is
beyond a reasonable doubt. . . .
Foreman: We have spent some time now trying to
understand the reasonable basis for his
6702 WILLIAMS v. CAVAZOS
doubt, and I personally did not yet
understand it . . . . I would say that two-
thirds of the jurors have tried to persuade
— have actively tried to persuade . . .
him that his current view is incorrect.
...
Juror #4: Well, I guess he believes from the evi-
dence that he’s seen that there hasn’t
been sufficient proof. . . .
Juror #5: I think the question may have been
raised: “Do you have a political agen-
da?” I think [it] might have been in the
heat of the argument, because it does get
heated back and forth from a bunch of
different people. It may have been said.
...
Juror #9: Well, he said this is a serious thing, and
I don’t really feel that there is enough
cause for — or something to that effect.
. . . What he said was, “I wouldn’t want
to take anyone’s freedom away, unless,”
you know, “I was sure that certain things
took place.” . . . .
The first passage above is dialogue from the classic Acad-
emy Award-winning 1957 film, Twelve Angry Men, in which
Henry Fonda plays a holdout juror who, over two tense hours,
convinces his eleven peers that the defendant in a murder trial
should be acquitted. The second excerpt comes from the tran-
script of proceedings during the petitioner’s murder trial, in
which each juror was examined and cross-examined, seriatim
and mid-deliberation, after it was reported that one juror was
taking a different view from the others. In the end, the trial
court dismissed that juror on the ground that he was “biased”
WILLIAMS v. CAVAZOS 6703
against the prosecution. With an alternate juror in place, the
jury returned a guilty verdict.
Twelve Angry Men made for great drama because it vio-
lated the sanctity of the jury’s secret deliberations by allowing
the audience into the jury room. It was, of course, a work of
fiction. We are presented here with a similar intrusion into
heated deliberations involving a holdout juror, except that this
one took place in open court, and it resulted in a woman being
convicted and sentenced to life imprisonment after the hold-
out was dismissed. Under the precedent that existed when
petitioner’s conviction became final (and exists today as
well), the trial court’s actions violated the petitioner’s Sixth
Amendment rights, as incorporated with respect to the states
under the Fourteenth Amendment. We therefore conclude that
petitioner is in custody in violation of the Constitution,
reverse the judgment of the district court, and remand with
instructions to grant the writ.
I. BACKGROUND
A. The Offense
One afternoon in October 1993, petitioner Tara Sheneva
Williams agreed to drive around two friends, Carde Taylor
and Schantel W., to case out stores for a potential robbery
later that night. The third or fourth store they visited was a
liquor store, which Taylor and Schantel entered while Wil-
liams waited in the car. The two emerged a few seconds later,
but then Taylor went back in, pointed a gun at the proprietor
and, in the course of emptying the cash register, shot and
killed him. After being arrested in 1998 and initially denying
knowledge of the crime, Taylor and Williams both admitted
to being present and that Taylor had killed the owner. Wil-
liams told the police that, while she knew Taylor was armed,
there had never been a plan to rob the store during daylight
hours.
6704 WILLIAMS v. CAVAZOS
Taylor and Williams were each charged with special cir-
cumstances murder and a firearm enhancement, and they were
tried separately. After a five-day jury trial, Williams was
found guilty of murder with special circumstances as charged
and the firearm enhancement. The jury found that a handgun
was used in the commission of the crime. She was later sen-
tenced to life imprisonment without the possibility of parole.1
B. The Jury Deliberations
Williams was convicted only after the trial court dismissed
a known holdout juror and replaced him with an alternate.
This dismissal, and the events leading up to it, form the basis
of her claim for habeas relief.
Two days after the jurors began deliberations, the jury fore-
man delivered two notes to the trial court. The first read:
Relative to jury instruction 17.[41].1,[2] I wish to
1
Taylor was convicted as well, and sentenced to a life term without the
possibility of parole, plus five years.
2
That instruction is California’s anti-jury nullification instruction, which
states:
The integrity of a trial requires that jurors, at all times during
their deliberations, conduct themselves as required by these
instructions. Accordingly, should it occur that any juror refuses
to deliberate or expresses an intention to disregard the law or to
decide the case based on [penalty or punishment, or] any [other]
improper basis, it is the obligation of the other jurors to immedi-
ately advise the Court of the situation.
California Jury Instructions — Criminal, CALJIC No. 17.41.1 (1998 New)
(6th ed. 1996) (brackets in original). The Supreme Court of California has
since barred the use of this instruction, “believ[ing] [it to] ha[ve] the
potential to intrude unnecessarily on the deliberative process and affect it
adversely — both with respect to the freedom of jurors to express their
differing views during deliberations, and the proper receptivity they
should accord the views of their fellow jurors.” People v. Engelman, 28
Cal. 4th 436, 440 (2002). The trial court’s use of this instruction is not at
issue here.
WILLIAMS v. CAVAZOS 6705
inform you that we have one juror who: 1) has
expressed an intention to disregard the law . . . and
2) has expressed concern relative to the severity of
the charge (1st degree murder).
The second asked:
Is it legally permissible for a juror to interpret page
32 of the jury instructions to mean that the conspir-
acy should involve a plan to commit a specific rob-
bery, rather than a general plan to commit robberies
in the future?
The trial court called the jury into the courtroom and informed
its members that the answer to the second question was “no.”
All the jurors except for the foreman were asked to leave, and
the court proceeded to question him regarding the first note.
1. Jury Foreman (Juror No. 8)
The foreman first confirmed that no juror had “expressed
any concern about punishment or the punishment that one
might expect to flow from a certain conviction,” which the
jury had been expressly instructed it could not do. When
asked what was meant by the phrase “has expressed concern
relative to the severity of the charge,” the foreman answered
that the juror in question “has probably ten or fifteen times in
our conversations so far expressed that . . . he doesn’t believe
that there’s sufficient evidence —.” At this point, the court
interrupted the foreman and informed him that he could not
speak to “how jurors view the evidence” but could only
express concern with whether there was “misconduct.” As an
example of misconduct, the court described a situation where
a juror “says something like, I can’t convict anybody of first
degree murder because of the punishment or something like
that, or I had a cousin in a similar situation, and I wouldn’t
want the person here to suffer what, you know, my cousin
went through, something like that.” The foreman then
6706 WILLIAMS v. CAVAZOS
responded: “I think it’s halfway to that, and so I think that
one’s a little iffy, and I think your answer to the first part may
be sufficient to resolve our concern at this time.”
Upon the People’s motion, and over Williams’s objection,
the court halted jury deliberations and questioned the foreman
again the next day. According to the foreman, on the first day
of deliberations, Juror No. 6 had brought up historical
instances “when juries have refused to follow the law,” such
as in pre-Civil War prosecutions for harboring fugitive slaves
and during the Vietnam War era for burning draft cards. The
foreman expressed his opinion that Juror No. 6 had “a belief
. . . that [there] is a civic responsibility to — there’s a name
for this — civil disobedience. There’s a responsibility to be
disobedient in that case.” However, the foreman testified that
when he had asked Juror No. 6 explicitly “if that’s what was
going on here,” the juror answered “no.”
The foreman testified that Juror No. 6 had expressed his
view that first degree murder was a severe charge which
affected the “way he interprets the evidence and the standard
he uses for doubt.” Juror No. 6, according to the foreman, had
made a “fairly clear statement . . . that connects the severity
of the charge with — explicitly of first degree murder with his
need for a higher standard.” The foreman conceded that Juror
No. 6 had not explicitly expressed an unwillingness to follow
the law or the jury instructions on the standard of proof. He
also agreed that the juror had attempted to explain “the basis
for his reasonable doubt” to the other jurors many times and
had actively engaged in “intellectual conversation with them,
listening to their questions, trying to answer them.”
2. Juror No. 6
The court called in Juror No. 6 for questioning. Juror No.
6 testified that no juror had indicated being motivated by the
issue of possible punishment in the case, and that no juror had
even used the word “punishment.” He denied using a higher
WILLIAMS v. CAVAZOS 6707
burden of proof based on the severity of the first degree mur-
der charge, and stated, “I think that the same burden of proof
should be used for any criminal offense, higher than a civil
trial, but all criminal trials should have — whether it’s first
degree murder or not should have the same burden of proof.”
He recalled the court’s instruction regarding what constituted
proof beyond a reasonable doubt, and testified that he agreed
to follow it as he understood it. He expressed his understand-
ing of the instruction as: “not proof — there’s always some
possible doubt in any human affair, but if you have a reason-
able doubt based on the evidence and only on the evidence
that was presented at trial, if you have a reasonable doubt
about a defendant’s guilt, under the law, you are required to
vote not guilty.”
The prosecutor asked, “Has anyone discussed the severity
of the charge?” Juror No. 6 responded, “No, not that I recall.”
The court then interjected, “Just to be clear, have you made
reference during deliberations to the severity of the charge?”
And Juror No. 6 replied, “No, I — Well, let me amend that.
I said I can remember saying this is a very important case and
we should be very convinced that if the defendant is found
guilty that it is beyond a reasonable doubt. Other than that, I
did not make a reference to the severity of the case — the
severity of the charge.”
The court asked Juror No. 6 about the difference between
proving a criminal charge under the standard of “beyond a
reasonable doubt” and proving the same charge under the
standard of “very convinced beyond a reasonable doubt.”
Juror No. 6 began to answer “No, they’re the same standards
as far as —” when the court cut him off, asking, “What does
‘very convinced’ add?” Juror No. 6 responded, “It just means
. . . it’s a good idea to pay particular attention to what evi-
dence was presented at the trial and make sure before we
decide on a verdict, that we are convinced — if the verdict is
guilty, that we are convinced beyond a reasonable doubt by
the evidence that was presented at the trial.” He then stated a
6708 WILLIAMS v. CAVAZOS
second time that “convinced beyond a reasonable doubt is the
standard, and I don’t think that there is a difference between
convinced beyond a reasonable doubt and very convinced
beyond a reasonable doubt. I think it’s the same thing.”
Juror No. 6 also expressed his view that “jurors should not
use juror nullification.” He stated, “They should base their
decisions on the evidence that was presented at a particular
trial and only on that evidence.” Juror No. 6 was later asked
again whether the jurors had discussed jury nullification. He
responded that another juror had “raised the question whether
juries always convict according to the law,” and that he had
responded, “sometimes they don’t,” and had shared his
knowledge of historical cases in which the law “was not
always enforced” and “became impossible to enforce, because
juries would not convict people who were clearly in violation
of it.”
After Juror No. 6 was excused, the prosecutor asked the
court to remove him. The court stated that it was “inclined to
rule that the juror has engaged in misconduct. He’s applying
a higher burden of proof than the law requires . . . and . . . he
isn’t lying, but intentionally withheld honest information.”
The court noted that Juror No. 6 had “contradicted himself,”
because he initially answered that no juror had discussed juror
nullification or the seriousness of the charge, but later admit-
ted that he had responded to a juror’s question about jurors
not following the law. But the court decided to first question
the other jurors about Juror No. 6, in order to develop a “fuller
record.”
3. The Other Ten Jurors
Over the next two hours, the trial judge, prosecutor, and
defense counsel questioned each of the remaining jurors, one
by one. Six jurors (Nos. 3, 5, 7, 10, 11, and 12) stated that,
in their opinion, Juror No. 6 was not following the law. When
questioned further, however, four of those six (Nos. 5, 7, 11,
WILLIAMS v. CAVAZOS 6709
and 12) acknowledged that Juror No. 6 had never said as
much, but two (Nos. 3 and 10) reported that Juror No. 6 had
said, “in essence,” that he would not follow the law. The other
four (Nos. 1, 2, 4, and 9) thought that Juror No. 6 was follow-
ing the law, and, in the words of Juror No. 2, was “being hon-
est.” Those jurors thought there was just a difference in
opinion over how the law applied to the facts of the case.
Juror No. 9, for example, explained that Juror No. 6 had tried
to explain his view, “but none of us really understood it the
way he did.” Only five jurors (Nos. 1, 2, 5, 7, and 11) men-
tioned jury nullification at all, of which just one (No. 2)
thought Juror No. 6 might actually be engaging in the prac-
tice. Additionally, two jurors (Nos. 2 and 5) made comments
to the effect that Juror No. 6 disapproved of the theory of
accomplice liability. Six jurors (Nos. 2, 3, 4, 9, 10, and 11)
explained that Juror No. 6 did not believe that the evidence
was sufficient to prove guilt of murder beyond a reasonable
doubt.
4. The Trial Court Decision
After the inquiry concluded, the court dismissed Juror No.
6 under California Penal Code section 1089, which provides
for the discharge of jurors for good cause.3 The court ruled
that its dismissal of Juror No. 6 was “not because he’s not
deliberating and not because he’s not following the law.”
3
In relevant part, the statute reads:
If at any time, whether before or after the final submission of the
case to the jury, a juror dies or becomes ill, or upon other good
cause shown to the court is found to be unable to perform his or
her duty, or if a juror requests a discharge and good cause
appears therefor, the court may order the juror to be discharged
and draw the name of an alternate, who shall then take a place
in the jury box, and be subject to the same rules and regulations
as though the alternate juror had been selected as one of the origi-
nal jurors.
Cal. Penal Code § 1089 (emphasis added).
6710 WILLIAMS v. CAVAZOS
Instead, “he is dismissed without any question in my mind as
a biased juror,” because “his mind is bent . . . against the pros-
ecution,” as evidenced by his statements concerning the gov-
ernment’s burden of proof, his disagreement with the felony-
murder rule, and his “dishonest[y]” in recounting whether
anyone had discussed the severity of the charge or juror nulli-
fication. The court then concluded that Juror No. 6 “was lying
in court” and “has no business being a juror in this matter,”
and so dismissed him.
C. Subsequent Proceedings
An alternate juror replaced Juror No. 6 immediately. The
following day, the jury returned a guilty verdict against Wil-
liams for first degree murder. Williams appealed, claiming
that the trial court had both abused its discretion in applying
section 1089 and violated her Sixth Amendment rights. The
California Court of Appeal affirmed her conviction on the
state-law ground, but did not address her Sixth Amendment
claim at all. The Supreme Court of California then granted
review, ordered the Court of Appeal decision vacated, and
remanded the case for reconsideration in light of its recent
decision, People v. Cleveland, 21 P.3d 1225 (Cal. 2001).
On remand, the Court of Appeal issued a slightly modified
version of its prior opinion and again affirmed Williams’s
conviction. The Court of Appeal reiterated that the trial court
“discharg[ed] Juror No. 6 because he had shown himself to be
biased, not because he was failing to deliberate or engaging
in juror nullification.” Again, the court did not address her
Sixth Amendment challenge. The Supreme Court of Califor-
nia denied Williams’s second petition for review without
comment, over Justice Kennard’s dissent. Her conviction
became final on July 9, 2002, when the time to petition the
United States Supreme Court for a writ of certiorari expired.
WILLIAMS v. CAVAZOS 6711
Williams then sought relief in federal court.4 The district
court denied the petition, and Williams timely appealed.
II. STANDARD OF REVIEW
Williams filed her federal habeas petition in 2003, so it is
subject to the provisions of the Antiterrorism and Effective
Death Penalty Act (AEDPA). Under AEDPA, federal courts
may grant habeas relief to a state prisoner “with respect to any
claim that was adjudicated on the merits in State court pro-
ceedings” only if that adjudication “(1) resulted in a decision
that was contrary to, or involved an unreasonable application
of, clearly established Federal law, as determined by the
Supreme Court of the United States; or (2) resulted in a deci-
sion that was based on an unreasonable determination of the
facts in light of the evidence presented in the State court pro-
ceeding.” 28 U.S.C. § 2254(d). To determine whether we
apply “AEDPA deference” here, we must consider which
state court “decision” we review, and whether that decision
actually “adjudicated” Williams’s Sixth Amendment claim on
the merits.
A
It has long been the practice of federal habeas courts to
“look through” summary denials of claims by state appellate
courts and review instead the last reasoned state-court deci-
sion. Ylst v. Nunnemaker, 501 U.S. 797, 806 (1991); see, e.g.,
Kennedy v. Lockyer, 379 F.3d 1041, 1052 (9th Cir. 2004).
Following the Supreme Court’s decision in Harrington v.
Richter, 131 S. Ct. 770 (2011), we continue to adhere to that
practice, at least with respect to cases in which state courts of
4
Williams’s initial pro se petition was stayed pending exhaustion of
state post-conviction remedies. Both the Court of Appeal and the Supreme
Court of California denied her state habeas petitions on the ground that her
claim concerning juror discharge had already been decided on direct
appeal.
6712 WILLIAMS v. CAVAZOS
last resort have exercised their discretionary authority to deny
petitions for review. In Richter, the Court held that summary
denials of original petitions for habeas corpus filed in the
Supreme Court of California should “be presumed” to be “ad-
judicated . . . on the merits.” Id. at 784-785. The question in
Richter arose because state habeas petitions in California are
presented to the state supreme court as original petitions,
rather than as requests for review of lower-court rulings deny-
ing relief; accordingly, the Supreme Court of California must
actually adjudicate each habeas petition. Noting that “the Cal-
ifornia Supreme Court disposes of . . . more than 3,400 origi-
nal habeas corpus petitioner” each year, the Richter Court
observed that “[t]he issuance of summary dispositions in
many collateral attack cases can enable a state judiciary to
concentrate its resources on the cases where opinions are most
needed.” Id. at 784. It thus determined that the summary
nature of the court’s disposition of its thousands of original
habeas petitions in no way undermines any presumption that
they are decisions on the merits. Id. at 784-785.
A state court’s decision to deny discretionary review is
entirely different. On direct appeal of a decision by a state
court of appeal in a non-capital case, the Supreme Court of
California has the authority to choose whether or not to grant
review. See Cal. R. Ct. 8.500. As when the United States
Supreme Court denies a petition for certiorari, the California
high court’s decision to deny a petition for review is not a
decision on the merits, but rather means no more than that the
court has decided not to consider the case on the merits. See,
e.g., Campers v. Workers’ Comp. Appeals Bd., 836 P.2d 888,
894 n.8 (Cal. 1992) (“[W]e reiterate the well-established rule
in this state that a denial of a petition for review is not an
expression of opinion of the Supreme Court on the merits of
the case.”); see also People v. Davis, 81 P. 718 (Cal. 1905)
(“The significance of such refusal [by the Supreme Court to
accept a case for review] is no greater than this — that this
court does not consider that the interests of justice, or the pur-
poses for which the power [to transfer cases for review] was
WILLIAMS v. CAVAZOS 6713
given, require its exercise in the particular case.”). That is,
under California law, the state supreme court’s discretionary
denial of a petition for review is decidedly not a decision on
the merits. Cf. Richter, 131 S. Ct. at 785. Accordingly, in this
case, the Supreme Court of California’s denial of Williams’s
second petition for review — seeking review of the California
Court of Appeal opinion issued on remand from the Supreme
Court of California — was not a decision on the merits. We
therefore continue to “look through” the state supreme court’s
denial of discretionary review to the last reasoned state court
decision, which here is the second California Court of Appeal
opinion on Williams’s direct appeal.
B
We must next consider whether the Court of Appeal adjudi-
cated Williams’s Sixth Amendment claim on the merits. We
conclude that it did not.
Most of the time, any claim a federal habeas court is able
to consider on the merits will first have been “adjudicated on
the merits in State court proceedings,” and thus the strictures
of § 2254(d) apply. That is so because the most common rea-
son a claim would not have been adjudicated on the merits —
it was never raised in state court — is itself a bar to federal
habeas review. See 28 U.S.C. § 2254(b)(1)(A) (requiring
exhaustion). Occasionally, however, a federal habeas peti-
tioner brings a claim that was raised in state court but was not
decided on its merits — because, for example, the claim was
dismissed on a procedural ground that itself is inadequate to
bar federal review, there was no need to address the claim in
light of a precursor holding, or, as here, the court simply
failed to decide the claim without explanation.5 In such cases,
5
That no decision on the merits was issued is, of course, no indication
itself of a failure to exhaust; “[i]t is too obvious to merit extended discus-
sion that whether the exhaustion requirement of 28 U.S.C. § 2254(b) has
been satisfied cannot turn upon whether a state appellate court chooses to
ignore in its opinion a federal constitutional claim squarely raised in peti-
tioner’s brief in the state court.” Smith v. Digmon, 434 U.S. 332, 333
(1978) (per curiam).
6714 WILLIAMS v. CAVAZOS
when it is clear that the “[state] courts did not reach the merits
of [the petitioner’s constitutional] claim, federal habeas
review is not subject to the deferential standard that applies
under AEDPA to ‘any claim that was adjudicated on the mer-
its in State court proceedings’ ”; “[i]nstead, the claim is
reviewed de novo.” Cone v. Bell, 129 S. Ct. 1769, 1784
(2009) (quoting 28 U.S.C. § 2254(d)).6
6
See also Rompilla v. Beard, 545 U.S. 374, 390 (2005) (because state
court never reached “prejudice” prong of ineffective assistance of counsel
claim, that issue was reviewed de novo); Wiggins v. Smith, 539 U.S. 510,
534 (2005) (same); Nulph v. Cook, 333 F.3d 1052, 1056-1057 (9th Cir.
2003) (state court dismissed state habeas petition for failing to state a
claim under Oregon habeas law, so “AEDPA’s deferential standard . . .
does not apply in this case because the state court did not reach the merits
of Nulph’s due process claim”); Taylor v. Bowersox, 329 F.3d 963, 968
(8th Cir. 2003) (de novo review because claim was not decided on the
merits by the state court, which had dismissed the claim as having been
previously litigated); Pirtle v. Morgan, 313 F.3d 1160, 1165, 1167 (9th
Cir. 2002) (state court declined to adjudicate claim on state post-
conviction review under its “relitigation rule,” although the issue had not
actually been raised on direct review, so federal habeas court reviewed
claim de novo); Norde v. Keane, 294 F.3d 401, 410 (2d Cir. 2002) (“Here,
the Appellate Division’s opinion on direct review addressed only Norde’s
arguments that the evidence relating to the physical injury was insuffi-
cient, that the prosecutor was improperly allowed to make prejudicial
remarks during summation, and that the prosecutor’s inquiry into Norde’s
prior convictions was prejudicial. The court did not mention Norde’s Sixth
Amendment claims, and the opinion does not contain any language, gen-
eral or specific, indicating that those claims were considered and denied
on the merits. . . . Because the Appellate Division never indicated in any
way that it had considered Norde’s Sixth Amendment claims, we find that
those claims were not adjudicated on the merits, and therefore that the
AEDPA’s new, more deferential standard of review does not apply.”
(internal citation omitted)); Appel v. Horn, 250 F.3d 203, 210-211 (3d Cir.
2001) (de novo review after state supreme court had wrongly “recharacter-
ized” petitioner’s constructive-denial-of-counsel claim as an ineffective-
assistance-of-counsel claim, and as a result “failed to adjudicate [the]
denial of counsel claim on the merits”); Weeks v. Angelone, 176 F.3d 249,
262-263 (4th Cir. 1999) (de novo review when state supreme court “failed
to address” a properly raised claim); Fisher v. Texas, 169 F.3d 295,
300-302 (5th Cir. 1999) (de novo review when state court had dismissed
claim on procedural grounds, not merits, and state then failed to assert the
WILLIAMS v. CAVAZOS 6715
De novo review in these infrequent circumstances is consis-
tent with “the basic structure of federal habeas jurisdiction,”
which is “designed to confirm that state courts are the princi-
pal forum for asserting constitutional challenges to state con-
victions.” Richter, 131 S. Ct. at 787. When those “principal
forum[s]” are provided the opportunity to adjudicate constitu-
tional challenges but fail to do so, whether intentionally or
inadvertently, the only remaining forum — the federal courts
— must do so in the first instance. Habeas review under such
circumstances neither “frustrates . . . [the States’] good-faith
attempts to honor constitutional rights” — for the State has
made no attempt to do so — nor “disturbs the State’s signifi-
cant interest in repose for concluded litigation” — since an
issue in the litigation was left unconcluded. Id. (internal quo-
tation marks omitted).
This is one of those rare cases in which a claim was prop-
erly raised and yet was not decided by the state court.7 Before
procedural default in federal habeas litigation); Moore v. Parke, 148 F.3d
705, 708-710 (7th Cir. 1998) (de novo review when state decision was
based on procedural error that was not an “adequate” state ground for the
decision).
7
Counsel for the State acknowledged at oral argument that nothing in
the Court of Appeal decision suggests that the court considered the Sixth
Amendment argument. Audio recording of oral argument at 27:21 to
29:30:
Reinhardt, J: Where in its decision did the Court of Appeal decide the
question of whether there was a Sixth Amendment viola-
tion?
Deputy A.G.: What we’re looking at is they were applying what was
California law. The 1089, I believe, of the Penal Code,
and saying that California state court properly applied
that. I think that, specifically they didn’t get into a Sixth
Amendment question, but if you look at, for our purposes,
what we have are really no U.S. Supreme Court authority
that would govern this particular type of situation . . . .
Kozinski, C.J.: That was a very long answer. . . . It wasn’t a good
answer; it was just a long answer. I take it the answer is
6716 WILLIAMS v. CAVAZOS
the Court of Appeal, Williams made two arguments relevant
to the issue now before us. First, citing numerous state court
decisions construing section 1089, she argued that the trial
court abused the discretion accorded to it by that statute to
dismiss jurors for cause. Pet’r Cal. Ct. App. Br. 7-8. Second,
she presented her constitutional claim by arguing that the “re-
mov[al] and replace[ment]” of a holdout juror from “a jury
which had previously been deadlocked” violated her rights
under the Sixth Amendment. Pet’r Cal. Ct. App. Br. 9; see
also id. at 41-42.8
“no” to Judge Reinhardt’s question. The Court of Appeal
did not discuss the Sixth Amendment. . . . Is there any-
thing more than “no” by way of an answer to the ques-
tion Judge Reinhardt asked?
Deputy A.G.: “No” would answer it.
Kozinski, C.J.: It is not discussed. The Court of Appeal does not discuss
the Sixth Amendment.
Deputy A.G.: The Court of Appeal does not discuss the Sixth Amend-
ment. Correct.
8
Specifically, Williams relied upon Perez v. Marshall, 119 F.3d 1422
(9th Cir. 1997), which recognized that the “Sixth Amendment right to a
jury trial” could be offended by “the dismissal and replacement of . . .
jurors” under section 1089 in some circumstances, although there was no
violation on the facts of that case. Pet’r Cal. Ct. App. Br. 41-42 (citing id.
at 1426). The substance of Williams’s federal claim was just that: Because
“Juror No. 6 was a holdout juror for acquittal” who “questioned the suffi-
ciency of the People’s evidence to prove appellant’s guilt beyond a rea-
sonable doubt,” the court “denied [Williams] her Sixth Amendment right”
by dismissing him. Pet’r Cal. Ct. App. Br. 41. Moreover, citing federal
cases, Williams argued that in this case the “questioning [of all jurors] was
a severe intrusion onto the secrecy of the jury’s deliberations to the extent
it elicited their subjective thought processes during those deliberations,”
which violates an “essential” constitutional feature of the “proper func-
tioning of juries.” Pet’r Cal. Ct. App. Br. 14-15 & n.12. Williams also
asserted that Juror No. 6’s discharge violated her right to a unanimous jury
verdict. Pet’r Cal. Ct. App. Br. 9; see also id. at 41-42. Although there is
no federal right to jury unanimity in state court, see Apocada v. Oregon,
406 U.S. 404, 412 (1972), California does provide such a right, see People
v. Feagley, 14 Cal. 3d 338, 350 n.10 (1975), and Williams’s argument was
WILLIAMS v. CAVAZOS 6717
The Court of Appeal proceeded to adjudicate only her sec-
tion 1089 claim, but not her constitutional claim. It held that
the trial court did not abuse its discretion under section 1089,
because sufficient evidence supported the trial court’s finding
that Juror No. 6 met the definition of “actual bias” under the
statute. It did not consider, however, whether the removal of
the known holdout juror violated the Sixth Amendment.9
To be sure, a state court may adjudicate the merits of a con-
stitutional claim without citing federal precedent, and such a
decision would be entitled to AEDPA deference. See, e.g.,
Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam). And under
Richter, even “when a state court’s order is unaccompanied
by an opinion explaining the reasons relief has been denied,”
we must “presume[ ] that the state court adjudicated the claim
on the merits in the absence of any indication or state-law
procedural principles to the contrary.” 131 S. Ct. at 784-785.
Here, however, the Court of Appeal’s decision was not “unac-
companied by an opinion explaining the reasons relief has
been denied,” id. at 784; rather the court provided a lengthy,
reasoned explanation for its denial of Williams’s appeal, but
none of those reasons addressed her Sixth Amendment claim
in any fashion, even indirectly.10
that the Sixth Amendment does not allow a juror whose vote is essential
to the verdict to be removed because he is known to be in favor of the
defendant, whatever the vote required to convict. In California, which
requires jury unanimity, the removal of even a lone holdout juror violates
that right to a fair trial by jury.
9
In reviewing the trial court’s exercise of discretion under section 1089,
the court did quote a California Supreme Court case’s discussion of the
federal constitutional principle of impartiality. The section 1089 issue was
distinct from Williams’s constitutional claim: that the removal of Juror
No. 6 violated her right to a fair trial by jury.
10
In contrast, in Murdoch v. Castro, 609 F.3d 983 (9th Cir. 2010) (en
banc), a plurality of the en banc court determined that the California Court
of Appeal had “discuss[ed] and quote[d] from the section of [the petition-
er’s] brief in which he raised” his federal constitutional claim and had
6718 WILLIAMS v. CAVAZOS
It is obvious, not “theoretical” or “speculat[ive],” that Wil-
liams’s constitutional claim was not adjudicated at all, and so
the Richter presumption is overcome. Id. at 785. Specifically,
the portion of the court’s opinion concerning the discharge of
Juror No. 6 reveals that the court upheld his dismissal on the
sole basis that the trial court had not abused its discretion in
applying section 1089. That the court engaged in an extended
discussion of Williams’s statutory claim, but made no men-
tion whatsoever of her more fundamental constitutional claim,
is a compelling “indication” that the court either overlooked
or disregarded her Sixth Amendment claim entirely, rather
than that it adjudicated the claim but offered no explanation
at all for its decision. Cf. id. at 785. Put differently, when a
court simply says “claims denied,” and nothing more, we pre-
sume the denial is on the merits and as to all claims, see id.
at 784-785, but when a court devotes many pages to explain-
ing its reason for denying one claim, and then says absolutely
nothing that even acknowledges the existence of a second
claim, “there is reason to think” that it “is more likely” that
the court simply neglected the issue and failed to adjudicate
the claim.11
cited a state case that discussed the federal constitutional right. It therefore
stated that the state court had adjudicated the petitioner’s constitutional
claim on the merits, even though it “addressed [the] argument only
obliquely.” Id. at 990 n.6 (plurality opinion). Unlike in Murdoch, here the
state court did not address Williams’s claim, obliquely or otherwise, and
there is not a scintilla of evidence that the Court of Appeal decided the
constitutional claim, in addition to a separate claim that it discussed at
length. The Murdoch court found an “indication” that the state court had
adjudicated the constitutional claim on the merits; here, the total disparity
between the court’s treatment in the opinion of Williams’s statutory claim
(reasoned in detail) and her constitutional claim (not mentioned at all) pro-
vides a strong “indication” that the claim was never adjudicated on the
merits.
11
Our “reason to think some other explanation for the state court’s deci-
sion is more likely” comes in part from common sense and our own expe-
rience as sometimes-fallible judges. Id. When we write thorough 29-page
decisions as the state court did here, yet completely fail to address a partic-
WILLIAMS v. CAVAZOS 6719
Even then, the Court of Appeal’s decision might be entitled
to deference if adjudicating the section 1089 claim necessarily
entailed adjudicating the Sixth Amendment claim. That would
be the case if, for example, California had ever defined the
limit of “discretion” to discharge a juror to be at, or short of,
the Sixth Amendment boundary. Were that so, a Court of
Appeal finding that the trial court had not abused its discre-
tion under section 1089 might implicitly be a determination
that the Sixth Amendment had not been violated, and we
might be required to consider that Williams’s Sixth Amend-
ment claim had been adjudicated on the merits. Cf. Baker v.
Blaine, 221 F.3d 1108, 1112 (9th Cir. 2000) (“The state court
decisions to which the district court gave deference either
cited directly to opinions of the Supreme Court of the United
States or to cases which themselves rested on Supreme Court
precedent, and the state court holdings were consistent with
the reasoning of the cited cases,” so AEDPA deference should
apply).
California does not appear to have considered, however,
how the federal constitution constrains a trial court’s discre-
tion to discharge a juror from deliberations, so the Baker
approach to recognizing indirect state determinations of fed-
eral constitutional claims does not apply.12 Cleveland was not
ular issue, even in an oblique, tangential, or summary manner, it is most
often because we so focused on the remainder of the opinion that we over-
looked the issue we did not mention directly or indirectly. Just as we occa-
sionally make mistakes and overlook an argument raised on appeal, so too
do our state-court peers. It is most unlikely that the state court methodi-
cally analyzed each issue presented on appeal except one, a substantial
claim of the violation of a federal constitutional right, which it chose to
deny on the merits without saying a word.
12
By contrast, California has considered constitutional limitations in
restricting a trial court’s discretion to instruct a jury once an alternate juror
has been added to the group. Citing constitutional concerns, People v. Col-
lins, 552 P.2d 742 (Cal. 1976), held that a trial court must direct the jury
to disregard past deliberations and begin anew when an alternate juror
joins. Id. at 745-747.
6720 WILLIAMS v. CAVAZOS
a constitutional decision; rather, the California Supreme Court
defined the limits of a trial court’s discretion to conduct evi-
dentiary hearings into juror misconduct, and to dismiss jurors
for good cause under section 1089, based on various “policy
considerations” and its precedent interpreting section 1089.13
21 P.3d at 1231. In so doing, the court expressly rejected the
juror-discharge standard adopted by the Second, Ninth, and
D.C. Circuits. See 21 P.3d at 1236-1237 (declining to adopt,
among others, United States v. Symington, 195 F.3d 1080 (9th
Cir. 1999), in favor of a more permissive standard). So it is
entirely possible that a juror discharge under section 1089 that
is permissible under Cleveland could nonetheless violate the
Sixth Amendment. Indeed, Justice Werdegar wrote separately
in Cleveland to raise the concern that a trial court might not
abuse its discretion but nonetheless “trench upon a defen-
dant’s right to trial by jury” — a concern that the majority did
not meet with any response. Cleveland, 21 P.3d at 1239
(Werdegar, J., concurring) (internal quotation marks omitted).
The Court of Appeal’s determination that the trial court did
not abuse its discretion under section 1089 thus did not
resolve Williams’s Sixth Amendment claim, even indirectly.
Instead, we are presented with a case more like the one
considered by the Third Circuit in Hameen v. Delaware, 212
F.3d 226 (3d Cir. 2000). The petitioner in that case alleged
that the “double counting” of an aggravating circumstance in
the penalty phase of his capital murder trial resulted in an
Eighth Amendment violation. Id. at 246-247. In its opinion,
the Delaware Supreme Court decided that the challenged
aggravating factor did not constitute impermissible double-
counting under Delaware’s death penalty statute, but it did not
13
In this respect, Cleveland was a California equivalent of Brasfield v.
United States, 272 U.S. 448 (1926) or Jenkins v. United States, 380 U.S.
445 (1965) (per curiam), cases in which the Supreme Court set limits on
district courts’ interference with jury deliberations pursuant to its supervi-
sory power, rather than the Constitution. See Lowenfield v. Phelps, 484
U.S. 231, 239-240 & n.2 (1988).
WILLIAMS v. CAVAZOS 6721
decide his Eighth Amendment claim, apparently believing its
death penalty statute to be facially constitutional. Ferguson v.
State, 642 A.2d 772, 781-783 (Del. 1994); see Hameen, 212
F.3d at 247. Reviewing that decision, the Third Circuit deter-
mined that the Delaware Supreme Court “did not pass on Fer-
guson’s Eighth Amendment constitutional duplicative
aggravating circumstances argument, even though it had the
opportunity to do so.” Hameen, 212 F.3d at 248. Accordingly,
with no state decision on the merits to which to apply AEDPA
deference, it reviewed de novo. Id. Other courts have faced
similar situations. See, e.g., Lyell v. Renico, 470 F.3d 1177,
1182 (6th Cir. 2006); Canaan v. McBride, 395 F.3d 376,
382-383 (7th Cir. 2005); Norde, 294 F.3d at 410; Weeks, 176
F.3d at 262-263.
As in Hameen, the Court of Appeal here conducted a
purely statutory analysis of whether the trial court had prop-
erly exercised its discretion under section 1089, a statute that
was known to be facially constitutional. See Miller v. Stagner,
757 F.2d 988 (9th Cir.), amended on other grounds, 768 F.2d
1090 (9th Cir. 1985). But a determination that the trial court
did not apply section 1089 erroneously as a matter of state
law did not resolve Williams’s federal claim: that section
1089 as applied in her case violated the Sixth Amendment, a
claim that the State acknowledges the Court of Appeal did not
decide. See supra at 6715-16 n.7. Absent a state court adjudi-
cation of that claim on the merits, we must review the claim
de novo here.
C
One other potential bar to considering Williams’s Sixth
Amendment claim merits only brief discussion. The pre-
AEDPA standards that govern this case include the Supreme
Court’s decision in Teague v. Lane, 489 U.S. 288 (1989),
which limits the constitutional claims that may be presented
to a federal court sitting in habeas to exclude those “new rule-
[s]” that were announced after the defendant’s conviction
6722 WILLIAMS v. CAVAZOS
became final, with certain exceptions. Id. at 301 (plurality
opinion). Because “the AEDPA and Teague inquiries are dis-
tinct,” the Supreme Court has directed that “in addition to per-
forming any analysis required by AEDPA, a federal court
considering a habeas petition must conduct a threshold
Teague analysis when the issue is properly raised by the
state.” Horn v. Banks, 536 U.S. 266, 272 (2002) (per curiam).
A Teague claim may be waived by the State, however, and so
we need not consider Teague where, as here, the state does
not raise it. See Caspari v. Bohlen, 510 U.S. 383, 389 (1994).
We note, in any event, that Williams does not seek retroactive
application of a “new rule” of constitutional law, but rather
relies upon cases that were decided years before her convic-
tion became final in 2002, namely United States v. Symington,
195 F.3d 1080 (9th Cir. 1999), and United States v. Brown,
823 F.2d 591 (D.C. Cir. 1987).14 Thus, even if a Teague issue
were properly raised, it would not affect our review.
14
Because AEDPA’s deferential standard of review does not apply, Wil-
liams is not limited to presenting violations of federal law that was
“clearly established . . . as determined by the Supreme Court of the United
States” at the time her conviction became final. 28 U.S.C. § 2254(d)(1).
Rather, under Teague she may also rely upon law that had been estab-
lished by the federal courts of appeals when her conviction became final.
See Bell v. Hill, 190 F.3d 1089, 1091-1092 (9th Cir. 1999) (finding no
Teague problem “despite the fact that Bell bases his Sixth Amendment
claim specifically on Ninth Circuit precedent rather than Supreme Court
precedent”); see also Terry Williams v. Taylor, 529 U.S. 362, 412 (2000)
(O’Connor, J., for the Court) (“With one caveat, whatever would qualify
as an old rule under our Teague jurisprudence will constitute ‘clearly
established Federal law, as determined by the Supreme Court of the
United States’ under § 2254(d)(1). The one caveat, as the statutory lan-
guage makes clear, is that § 2254(d)(1) restricts the source of clearly
established law to this Court’s jurisprudence.”) (citations omitted); id. at
381 (Stevens, J., joined by Souter, Ginsburg, and Breyer, JJ.) (“[Section
2254(d)(1)] extends the principle of Teague by limiting the source of doc-
trine on which a federal court may rely in addressing the application for
a writ.”) (internal quotation marks omitted). Of course, where Teague is
not raised the courts are free simply to apply the Constitution de novo.
WILLIAMS v. CAVAZOS 6723
III. THE MERITS
We turn, at last, to the merits of Williams’s claim. Williams
argues that the trial court violated her Sixth Amendment right
to a fair trial by dismissing a juror who was known to be the
lone holdout for acquittal. Reviewing her claim de novo, we
agree, for two reasons: (1) there was a reasonable possibility
that the request for the juror’s discharge stemmed from his
views of the merits of the case, and (2) the grounds on which
the court relied did not amount to “good cause” to remove a
known holdout juror, and thus violated the Sixth Amendment.
Accordingly, we reverse.
A
As a general matter, the Sixth Amendment does not pro-
hibit the mid-deliberation dismissal of jurors who are unable
to serve or who engage in misconduct. In Miller, for example,
we found no constitutional violation in the dismissal of two
jurors after deliberations had begun: one of whom was sick
with the flu, and another who had been intoxicated the previ-
ous morning and had fallen asleep during the rereading of tes-
timony. 757 F.2d at 995. To the contrary, we held that the
“California substitution procedure followed by the trial court”
— Penal Code section 1089 — was constitutional because it
“preserved the ‘essential feature’ of the jury required by the
Sixth and Fourteenth Amendments.” Id. (quoting Williams v.
Florida, 399 U.S. 78, 100 (1970)). It appears that every court
to have considered the question agrees that some mid-
deliberation substitutions are permissible under the federal Con-
stitution.15
15
See, e.g., Claudio v. Snyder, 68 F.3d 1573, 1577 (3d Cir. 1995) (juror
illness); Peek v. Kemp, 784 F.2d 1479, 1483-1484 (11th Cir. 1986) (en
banc) (emotional distress and physical illness); United States v. Hillard,
701 F.2d 1052, 1057 (2d Cir. 1983) (illness); United States v. Phillips, 664
F.2d 971, 992-993 (5th Cir. Unit B 1981) (heart attack); Henderson v.
Lane, 613 F.2d 175, 178-179 (7th Cir. 1980) (heart attack); see also Com-
6724 WILLIAMS v. CAVAZOS
[1] It is just as clear, however, that the Sixth Amendment
does not allow a trial judge to discharge a juror on account of
his views of the merits of the case. In Duncan v. Louisiana,
391 U.S. 145 (1968), which incorporated the Sixth Amend-
ment with respect to the states, the Supreme Court explained,
Those who wrote our constitutions knew from his-
tory and experience that it was necessary to protect
against unfounded criminal charges brought to elimi-
nate enemies and against judges too responsive to
the voice of higher authority. The framers of the con-
stitutions strove to create an independent judiciary
but insisted upon further protection against arbitrary
action. Providing an accused with the right to be
tried by a jury of his peers gave him an inestimable
safeguard against the corrupt or overzealous prose-
cutor and against the compliant, biased, or eccentric
judge. If the defendant preferred the common-sense
monwealth v. Carnes, 933 N.E.2d 598, 614-615 (Mass. 2010) (upon dis-
covering juror’s material misrepresentations on juror questionnaire). Such
unanimity is perhaps surprising given that this rule is in derogation of the
jury practice at common law, which was “to discharge the entire panel and
begin de novo by forming a new jury” when “a juror has become incapaci-
tated by illness or death after the jury is impaneled and sworn in chief.”
People v. Peete, 202 P. 51, 65 (Cal. Ct. App. 1921); see also West v. State,
28 So. 430, 431 (Fla. 1900); State v. Hasledahl, 52 N.W. 315, 316 (N.D.
1892).
Some states, however, prohibit juror substitutions after the case has
been submitted to the jury under state law. See, e.g., Claudio v. State, 585
A.2d 1278, 1301 (Del. 1991) (state constitution); Crossland v. Common-
wealth, 291 S.W.3d 223, 230 (Ky. 2009) (by rule); Hayes v. State, 735
A.2d 1109, 1120 (Md. 1999) (by rule); State v. Dushame, 616 A.2d 469,
472 (N.H. 1992) (by statute); State v. Sanchez, 6 P.3d 486, 494 (N.M.
2000) (by rule); People v. Ortiz, 705 N.E.2d 1199, 1199 (N.Y. 1998) (by
rule, forbidding substitutions except upon the defendant’s in-court, written
consent); State v. Bobo, 814 S.W.2d 353, 356 (Tenn. 1991) (state constitu-
tion). California, of course, is not among them. See Cal. Penal Code
§ 1089.
WILLIAMS v. CAVAZOS 6725
judgment of a jury to the more tutored but perhaps
less sympathetic reaction of the single judge, he was
to have it. Beyond this, the jury trial provisions in
the Federal and State Constitutions reflect a funda-
mental decision about the exercise of official power
—a reluctance to entrust plenary powers over the life
and liberty of the citizen to one judge or to a group
of judges.
Id. at 156 (emphasis added).
The Court later elaborated, “the essential feature of a jury
obviously lies in the interposition between the accused and his
accuser of the commonsense judgment of a group of laymen,
and in the community participation and shared responsibility
that results from that group’s determination of guilt or inno-
cence.” Williams, 399 U.S. at 100 (emphasis added). The jury
is the only actor permitted to determine guilt — not the judge.
It is well-established, of course, that “a judge may not direct
a verdict of guilty no matter how conclusive the evidence” in
a criminal case. United Bhd. of Carpenters & Joinders of Am.
v. United States, 330 U.S. 395, 408 (1947). It would similarly
vitiate the “essential” role of a jury to act as a “safeguard”
against both the power of the state and the court for a judge
to selectively dismiss jurors based on the views of the merits
of the case they express during deliberations. Such dismissals
are thus prohibited as well, because a court cannot “do indi-
rectly that which it has no power to do directly.” Sparf v.
United States, 156 U.S. 51, 106 (1895).
[2] Indeed, no one, including the judge, is even supposed
to be aware of the views of individual jurors during delibera-
tions, because a jury’s independence is best guaranteed by
secret deliberations, such that jurors may “return a verdict
freely according to their conscience” and their “conduct in the
jury room [may be] untrammeled by the fear of embarrassing
publicity.” Clark v. United States, 289 U.S. 1, 16 (1933). As
Justice Cardozo wrote, “Freedom of debate might be stifled
6726 WILLIAMS v. CAVAZOS
and independence of thought checked if jurors were made to
feel that their arguments and ballots were to be freely pub-
lished to the world.” Id. at 13. To be sure, maintaining the
secrecy of deliberations might limit a court’s ability to inves-
tigate alleged misconduct. Nevertheless, as the Second Circuit
has explained,
Where the duty and authority to prevent defiant dis-
regard of the law or evidence comes into conflict
with the principle of secret jury deliberations, we are
compelled to err in favor of the lesser of two evils
— protecting the secrecy of jury deliberations at the
expense of possibly allowing irresponsible juror
activity. Achieving a more perfect system for moni-
toring the conduct of jurors in the intense environ-
ment of a jury deliberation room entails an
unacceptable breach of the secrecy that is essential
to the work of juries in the American system of jus-
tice. To open the door to the deliberation room any
more widely and provide opportunities for broad-
ranging judicial inquisitions into the thought pro-
cesses of jurors would, in our view, destroy the jury
system itself.
United States v. Thomas, 116 F.3d 606, 623 (2d Cir. 1997).
Accordingly, in deciding whether to discharge a juror mid-
deliberation, the critical Sixth Amendment questions are
whether, after an appropriately limited inquiry, it can be said
that there is no reasonable possibility that the juror’s dis-
charge stems from his views of the merits, and whether the
grounds on which the trial court relied are valid and constitu-
tional. If the answer to either question is no, the removal of
the juror violates the Sixth Amendment. We will discuss the
two questions separately.
B
In cases such as Miller involving juror illness or intoxica-
tion, it is obvious that the basis for discharge is independent
WILLIAMS v. CAVAZOS 6727
of the juror’s views of the merits. Indeed, in Miller, the views
of the dismissed jurors were not even known. 757 F.2d at 995.
Other cases have presented more uncertain circumstances. In
Perez v. Marshall, 119 F.3d 1422 (9th Cir. 1997), a habeas
petitioner claimed a violation of his Sixth Amendment rights
when a known holdout juror was dismissed for good cause
under section 1089. At an in camera hearing, the juror, a
twenty-year-old woman, “told the judge that she was dis-
tressed and that she did not want the responsibility of deciding
whether Perez was guilty,” and requested to be dismissed. Id.
at 1424. Over the prosecution’s objection, the court denied the
request and encouraged her to continue deliberating. Shortly
after deliberations resumed, the foreperson reported “difficul-
ties in the jury room,” and the court suspended deliberations
again. Id. The juror said she was not “emotionally able to con-
tinue deliberations,” id. at 1428, and the jury foreperson con-
firmed that “it started to be a very emotional thing with the
jurors where basically no one could try to make an intelligent
decision when you’re dealing with somebody that’s basically
in pieces,” id. at 1425. The next morning, the court dismissed
the juror on the basis that “she is just emotionally out of con-
trol.” Id. Deferring to the “trial court’s findings regarding
juror fitness,” we found no Sixth Amendment violation in the
replacement of that juror after her repeated requests to be dis-
missed. Id. at 1426. Because “the record shows that the [trial]
court was forced to act, not because of [the juror]’s status as
a holdout juror, but because of [her] emotional inability to
continue performing the essential function of a juror — delib-
eration,” we accepted the state court’s decision. Id. at 1427
(emphasis added); accord id. at 1428 (“[B]ecause there is no
evidence to suggest that the trial court’s decision was moti-
vated by [the juror]’s views on the merits of the government’s
case, we affirm the . . . denial of habeas relief.” (emphasis
added)).
In United States v. Brown, 823 F.2d 591 (D.C. Cir. 1987),
by contrast, the D.C. Circuit held unconstitutional the dis-
missal of a juror who requested to be discharged after five
6728 WILLIAMS v. CAVAZOS
weeks of deliberations. The juror told the court that “the prob-
lem” he had was “the way the R.I.C.O. conspiracy act reads.
. . . If I had known at the beginning of this trial what the act
said, I would have not said I could be impartial.” Id. at 594.
He acknowledged that he “disagree[d] with the law,” but did
not say he would refuse to follow it. Rather, he stated, “If the
evidence was presented in a fashion in which the law is writ-
ten, then, maybe, I would be able to discharge my duties.” Id.
Reviewing this episode, the D.C. Circuit held that “a court
may not dismiss a juror during deliberations if the request for
discharge stems from doubts the juror harbors about the suffi-
ciency of the government’s evidence.” Id. at 596. “A dis-
charge of this kind,” the court explained, “would enable the
government to obtain a conviction even though a member of
the jury that began deliberations thought that the government
had failed to prove its case. Such a result is unacceptable
under the Constitution.” Id. Recognizing that “the reasons
underlying a request for a dismissal will often be unclear,”
and that “a court may not delve deeply into a juror’s motiva-
tions because it may not intrude on the secrecy of the jury’s
deliberations,” the court held that “if the record evidence dis-
closes any possibility that the request to discharge stems from
the juror’s view of the sufficiency of the government’s evi-
dence, the court must deny the request.” Id. Because there
was a “substantial possibility that [the juror] requested to be
discharged because he believed that the evidence offered at
trial was inadequate to support a conviction,” the court deter-
mined that the defendant’s Sixth Amendment rights had been
violated. Id.
We adopted Brown in 1999, in a case involving the prose-
cution of Arizona Governor Fife Symington III. During delib-
erations, the jury sent the court two notes requesting
guidance, because “[o]ne juror has stated their [sic] final opin-
ion prior to review of all counts,” and the jury felt “that the
juror in question cannot properly participate in the discussion
with us” because she was unable to maintain focus on the top-
ics of discussion and she refused to discuss her views with the
WILLIAMS v. CAVAZOS 6729
other jurors. Symington, 195 F.3d at 1083. While being ques-
tioned individually, each juror confirmed the concerns raised
in the notes, although “some jurors indicated that their frustra-
tion with [the juror] may have derived more from their dis-
agreement with her on the merits of the case, or at least from
their dissatisfaction with her defense of her views.” Id. at
1084. The juror testified that she simply disagreed with the
majority and she was willing to discuss the case with the other
jurors, but that she had “bec[o]me intimidated” by the
demands of the other jurors to justify her views. Id. The court
dismissed the juror, on the ground that she was “either unwill-
ing or unable to deliberate with her colleagues.” Id.
[3] On appeal, we determined that “[w]hile there may have
been some reason to doubt [the juror]’s abilities as a juror,
there was also considerable evidence to suggest that the other
jurors’ frustrations with her derived primarily from the fact
that she held a position opposite to theirs on the merits of the
case.” Id. at 1088. We therefore reversed, reasoning that “if
the record evidence discloses any reasonable possibility that
the impetus for a juror’s dismissal stems from the juror’s
views on the merits of the case, the court must not dismiss the
juror.” Id. at 1087 (emphasis omitted). We reached that con-
clusion because to allow dismissal under the circumstances
presented would permit a court “[t]o remove a juror because
he is unpersuaded by the Government’s case,” which would
violate a defendant’s rights.16 Id. at 1085 (internal quotation
16
A later AEDPA case, Brewer v. Hall, 378 F.3d 952 (9th Cir. 2004),
which was decided long after Williams’s conviction became final, charac-
terized Symington as a decision under Federal Rule of Criminal Procedure
23(b), not the Sixth Amendment. Although we would not have reached the
same conclusion as the Brewer court — Symington plainly adjudicated a
Sixth Amendment challenge, see 195 F.3d at 1085 & n.2 — we are now
bound by and therefore accept its description of Symington. Because we
review the Sixth Amendment question presented here de novo, we may
nevertheless treat Symington as instructive on the question of when it is
constitutionally permissible to dismiss a juror mid-deliberations for rea-
sons that could be merits-related. Brewer did not actually decide what the
6730 WILLIAMS v. CAVAZOS
marks omitted). We also acknowledged that a detailed inquiry
into the jurors’ thinking and motivations would “compromise
the secrecy of jury deliberations” and “jeopardize the integrity
of the deliberative process.” Id. at 1086. We thus recognized
that while a trial court’s inability to resolve any ambiguity
concerning alleged misconduct would result in the juror
remaining empaneled, to do otherwise would, in the words of
the Second Circuit, “destroy the jury system itself.” Thomas,
116 F.3d at 623.
[4] Following Brown’s holding and Symington’s reasoning,
we hold that the discharge of Juror No. 6 violated Williams’s
Sixth Amendment rights.17 Even if we presume all the facts
found by the state court to be correct, 28 U.S.C. § 2254(e)(1),
Sixth Amendment does require in cases of mid-deliberation juror dis-
charge, since that case did not concern juror discharge, so the question
remains open for us to answer even if Symington did not already answer
it. See 378 F.3d at 955-956. Given that the D.C. Circuit’s decision in
Brown, upon which Symington relied and we rely, was indisputably a con-
stitutional decision, we see no reason why the Sixth Amendment standard
should be any different from the one announced in Symington for Rule 23.
We therefore hold that, to comply with the Sixth Amendment, “if the
record evidence discloses any reasonable possibility that the impetus for
a juror’s dismissal stems from the juror’s views on the merits of the case,
the court must not dismiss the juror.” Symington, 195 F.3d at 1087
(emphasis omitted).
17
The Sixth Amendment protection required by Brown and foreshad-
owed by Symington is against improper interference with jury delibera-
tions. Freedom to deliberate without coercion is a necessary component of
“the interposition between the accused and his accuser of the common-
sense judgment of a group of laymen,” which is “the essential feature of
a jury.” Williams, 399 U.S. at 100. This component of the Sixth Amend-
ment is thus incorporated with respect to the states through the Due Pro-
cess Clause of the Fourteenth Amendment. In Weaver v. Thompson, 197
F.3d 359 (9th Cir. 1999), for example, we held that improper coercion had
broken a jury deadlock to produce the ten-to-two vote needed to convict
under Oregon law, and granted habeas as a result. Similarly, the deadlock-
breaking dismissal of a holdout juror on an improper basis is an unconsti-
tutional form of interference with deliberations.
WILLIAMS v. CAVAZOS 6731
we conclude that the record discloses a “reasonable possibility
that the impetus for [Juror No. 6’s] dismissal stems from the
juror’s views on the merits of the case.” 195 F.3d at 1087. At
least seven jurors expressed the view that Juror No. 6 did not
believe that the evidence was sufficient to prove guilt of mur-
der beyond a reasonable doubt, thereby making a total of two-
thirds of the panel. The jury foreman testified that Juror No.
6 “has probably ten or fifteen times in our conversation so far
expressed that . . . he doesn’t believe that there’s sufficient
evidence.” Juror No. 2 said, “He didn’t believe that whatever
was in evidence was enough evidence for him.” Juror No. 3
affirmed that Juror No. 6 “didn’t believe that the evidence that
was shown in trial was sufficient to prove the severe charge
of murder.” Juror No. 4 said, “Well, I guess he believes from
the evidence that he’s seen that there hasn’t been sufficient
proof.” Juror No. 9 stated, “he didn’t feel that there was
enough proof of it [first degree murder].” Juror No. 10 said,
“He didn’t believe the evidence showed first degree murder
should be the charge.” And Juror No. 11 testified, “he said it
[the evidence] wasn’t proof beyond a reasonable doubt.” The
juror’s views regarding the insufficiency of the evidence were
thus made known to the prosecution as the result of a rigorous
inquiry into the thought process and reasoning of Juror No. 6.
Neither the trial court nor the Court of Appeal, however, even
mentioned this clear evidence regarding the juror’s views as
to the merits, or acknowledged the strong possibility that
Juror No. 6 was a holdout juror for legitimate reasons.
[5] As in Brown, “[g]iven the [reasonable] possibility” that
the request to discharge the juror “stemmed from his belief
that the evidence was inadequate to support a conviction, we
must find that his dismissal violated” the defendant’s Sixth
Amendment right. 823 F.2d at 597. A comparison to the facts
of Symington makes this violation all the more clear. In
Symington, the evidence of juror misconduct was far greater
than it was in the case before us, but even then we held that
the juror’s dismissal was improper given the “considerable
evidence to suggest that the other jurors’ frustrations with her
6732 WILLIAMS v. CAVAZOS
derived primarily from the fact that she held a position oppo-
site to theirs on the merits of the case.” Symington, 195 F.3d
at 1088. The other jurors in that case were unanimous in their
view that the discharged juror, a woman in her mid-70s, was
both unable to participate in deliberations and unwilling to
discuss her views. Id. at 1083. Here, the other jurors’ views
as to Juror No. 6’s willingness to follow the law were mixed
and the trial court ultimately did not find that he was unwill-
ing to do so when deciding to discharge the juror; also, most
of the jurors recalled Juror No. 6’s many attempts to explain
his views during deliberations, and none of the jurors
expressed the view that Juror No. 6 was biased. There was,
however, considerable frustration on the part of those other
jurors that Juror No. 6 did not agree with them on the suffi-
ciency of the evidence.
[6] As in Symington, notwithstanding the cause that the
trial court believed it possessed to discharge the juror whom
it knew to be the one vote for acquittal, it was not justified in
acting upon that cause because there was a “reasonable possi-
bility” that the request for removal was directly connected to
the juror’s views on the merits. Following Brown and Syming-
ton, we could reverse on this basis alone.
C
Although the reason offered above is sufficient to require
granting the writ on the ground that Juror No. 6’s discharge
violated the Sixth Amendment, the trial court’s lack of “good
cause” for removing the known holdout juror provides an
independent reason for reaching the same conclusion. See
Perez, 119 F.3d at 1426. We therefore hold that, in addition
to the Symington violation, the trial court’s dismissal of Juror
No. 6 was unconstitutional on its own terms.
[7] Although refusing to follow the law or refusing to
deliberate would be “good cause” for discharging a juror, the
trial court expressly disclaimed any finding that Juror No. 6
WILLIAMS v. CAVAZOS 6733
was guilty of either, and the Court of Appeal affirmed that deter-
mination.18 The only good cause relied upon for dismissal of
Juror No. 6 was “actual bias.” The court did not find, how-
ever, that Juror No. 6 was “biased” in any traditional sense of
the term, as would have been the case if, for example, he had
stated that he could not be impartial or had accepted a bribe
related to the case. Nor did it find that he had “implied bias,”
such as might have resulted from Juror No. 6 having a con-
nection to one of the parties, or being related to someone who
had either committed or been a victim of some similar crime.
Cf. Smith v. Phillips, 455 U.S. 209, 222 (1982) (O’Connor, J.,
concurring) (discussing possible instances of implied bias);
Dyer v. Calderon, 151 F.3d 970 (9th Cir. 1998) (en banc)
(holding that a juror who was a victim of multiple crimes and
whose husband had been a cellmate of the defendant should
have been dismissed as biased).
Rather, the court found that the juror was “biased” for five
overlapping reasons: (1) “the fact that he added his own
words to the court’s instructions as to what the law is,” which
“indicates where his mind is bent towards and that is biased
against the prosecution in the matter”; (2) “his repeating of
the severity of the charge in conjunction with his bringing up
the subject of juror nullification,” which “establishes his state
of mind that he’s bent in that regard, that he’s concerned
about the severity of the charge, which means the severity of
the punishment”; (3) when the judge “asked him what burden
of proof he was relying on, he said it was a [sic] very, very
18
Specifically, the trial court said, “I’m going to dismiss the juror, but
not because he’s not deliberating and not because he’s not following the
law. . . . [I]t’s fairly debatable whether he was deliberating or not, so I’m
not taking that into account. That is not a basis for dismissal. Not follow-
ing the law is not a basis for his dismissal either, since there was a request
by him to have the law clarified. It was clarified for him.” Rejecting Wil-
liams’s argument that the standard for good-cause dismissals set forth in
Cleveland had been violated, the Court of Appeal explained that Juror No.
6 was discharged “because he had shown himself to be biased, not because
he was failing to deliberate or engaging in juror nullification.”
6734 WILLIAMS v. CAVAZOS
convinced beyond a reasonable doubt,” which the judge
believed to mean “higher than beyond a reasonable doubt
because the charge is murder”; (4) the fact that “[h]e also dis-
agrees with the felony murder rule”; and (5) the fact that
“[h]e’s dishonest to me in stating that no juror including him-
self had discussed the severity of the charge, had not dis-
cussed juror nullification.”
Whether that determination amounted to “bias” under the
California standard for “actual bias” is neither a question that
is before us nor a ground for federal habeas relief. What we
must decide instead is whether the bases for discharge relied
upon by the trial judge constitute, under the circumstances of
this case, “good cause” for removing a known holdout juror.
We conclude that they do not, for several reasons. Absent
good cause, removal of the juror violated the Sixth Amend-
ment.
1
[8] We begin with the trial court’s determination that Juror
No. 6 disagreed with the felony murder rule. Such “disagree-
ment” with the type of crime charged is not the type of bias
that can justify removing a juror for good cause mid-
deliberations. There is no requirement that jurors agree with
the law that they are asked to apply, so long as they agree to
apply it impartially — which Juror No. 6 did here, according
to the trial court. “The defendant’s entitlement to jurors
impartial on the question of whether he committed the crimes
charged is entirely distinct from the question of whether the
crime itself is one which arouses their moral passions”; a juror
need not be “impartial to the underlying crime itself.” United
States v. Johnson, 990 F.2d 1129, 1133 (9th Cir. 1993).
Indeed, even in the capital-punishment context, in which
jurors must be specifically qualified for their task, impartiality
requires only that “jurors . . . follow the court’s instructions
and obey their oaths, regardless of their feelings about the
death penalty”; as a result, dismissing jurors who merely har-
WILLIAMS v. CAVAZOS 6735
bor doubts about the death penalty is unconstitutional. Adams
v. Texas, 448 U.S. 38, 45, 50 (1980).
We therefore hold that any disagreement with the law
expressed by Juror No. 6, even if it constituted “bias” under
California law, was not “good cause” for removing a deliber-
ating juror, absent a finding that he was unwilling to follow
the law due to his concerns about it. Indeed, it would be
anomalous, as well as contrary to law, to hold that a juror was
“biased” by his general feelings about a law if, as the trial
court found here, he was neither unwilling nor unable to fol-
low the law as required.
2
[9] Next, certain of the other trial court findings related to
Juror No. 6’s “concern” with the “severity of the charge,”
which the trial court erroneously took to mean that the juror
was applying a higher-than-allowed burden of proof. But mis-
stating the law during a mid-deliberation voir dire that should
never have taken place cannot provide good cause to dismiss
a juror, and the record does not support the finding that Juror
No. 6 misstated the law in any event.
Juror No. 6 testified, when questioned by the court, “I can
remember saying [during the jury deliberations] this is a very
important case and we should be very convinced that if the
defendant is found guilty that it is beyond a reasonable
doubt.” That sentiment is not “good cause” for the dismissal
of a deliberating juror. First, the juror’s statement should
never have left the jury room. The court subjected Juror No.
6 to an improper and “broad-ranging judicial inquisition[ ]
into [his] thought processes.” Thomas, 116 F.3d at 623. The
court asked, for example, “In your own personal mind, do you
believe you are using a burden of proof that is based on a
charge of first degree murder that is higher than one that
would be used for some charge that is less serious than first
degree murder?” and then presented Juror No. 6 with a string
6736 WILLIAMS v. CAVAZOS
of questions concerning jury deliberations in other, hypotheti-
cal prosecutions for other crimes. (Emphasis added). This per-
vasive inquiry violated the “imperative[ ] of preserving jury
secrecy.” Symington, 195 F.3d at 1087.
Second, the court clearly misstated what Juror No. 6 had
testified to during the court’s inquiry. The juror did not say
“very, very convinced beyond a reasonable doubt” ”when [the
court] asked him what burden of proof he was relying on.”
His words were actually: “[W]e should be very convinced that
if the defendant is found guilty that it is beyond a reasonable
doubt.” That is, as Juror No. 6 explained when pressed by the
court, “very convinced” as used in his sentence — detached
from the actual standard “beyond a reasonable doubt” — sim-
ply “means it’s a good . . . idea to pay particular attention to
what evidence was presented at the trial and make sure before
we decide on a verdict, that . . . if the verdict is guilty, that
we are convinced beyond a reasonable doubt by the evidence
that was presented at the trial.” The trial court’s misstatement
of the record made its conclusion unreasonable; Juror No. 6
did not “add[ ] his own words” to create a higher burden of
proof when he answered the court’s question. See Taylor v.
Maddox, 366 F.3d 992, 1001 (9th Cir. 2004) (applying the
more stringent AEDPA standard and explaining that “[a state
court’s] misapprehension [of the record] can fatally under-
mine the fact-finding process, rendering the resulting factual
finding unreasonable”).
Third, the court was wrong to derive meaning from the pre-
cise words used by the juror to define the government’s bur-
den of proof. The beyond-a-reasonable-doubt “standard is an
ancient and honored aspect of our criminal justice system,”
but “it defies easy explication.” Victor v. Nebraska, 511 U.S.
1, 5 (1994). In the context of evaluating jury instructions, the
Court has emphasized that “[a]ttempts to explain the term
‘reasonable doubt’ do not usually result in making it any
clearer to the minds of the jury,” Holland v. United States,
348 U.S. 121, 140 (1954) (internal quotation marks omitted),
WILLIAMS v. CAVAZOS 6737
and that “[t]he rule may be, and often is, rendered obscure by
attempts at definition, which serve to create doubts instead of
removing them,” Hopt v. Utah, 120 U.S. 430, 440-441 (1887).
Similarly, the trial court’s Socratic questioning of the juror
regarding his understanding of the standard was unlikely to
produce a clear and perfect response or reflect a precise unan-
imous understanding of the meaning of the words. Juror No.
6’s statement was fully consistent with the jury instructions he
had received. Moreover, despite the inquisition as to what
standard the juror would actually apply, neither the trial court
nor the Court of Appeal concluded that Juror No. 6 would not
follow the law. In short, any purported deviation in Juror No.
6’s understanding of those instructions did not give rise to
good cause sufficient to justify removing a holdout juror.
Finally, it is hardly “bias” to acknowledge the relative “im-
portan[ce]” of a murder trial and to “pay particular attention”
to whether the evidence satisfies the required burden of proof.
Rather, it is a realistic description of what all dedicated citi-
zens who perform the public duty of serving on juries do:
deliberate more intensively and consider the facts and law
more thoroughly in the most serious of cases. Indeed, in
Adams the Supreme Court expressly disapproved a voir dire
inquiry that “exclude[d] jurors who stated that they would be
‘affected’ by the possibility of the death penalty, but who
apparently meant only that the potentially lethal consequences
of their decision would invest their deliberations with greater
seriousness and gravity or would involve them emotionally.”
448 U.S. at 49. So long as the jury actually applies the requi-
site burden of proof — which is the same for all crimes — in
the end, it has acted appropriately, even if it undertook its task
more deliberately and devoted more time to its deliberations
before reaching its decision.
What resulted from the court’s intrusive inquiry into the
juror’s reasoning was a suggestion that Juror No. 6 was pay-
ing “particular attention to what evidence was presented at the
trial,” was taking more time than others, and was not yet sure
6738 WILLIAMS v. CAVAZOS
whether the government had satisfied its burden of proof.
That he was not convinced was not something that showed his
bias, but rather a reflection of his current thinking regarding
the issues in the case, a thought process to which the trial
court should not even have been exposed.
3
[10] The remainder of the court’s second determination —
that Juror No. 6 was concerned with the severity of the pun-
ishment, as opposed to the seriousness of the offense charged
— was contrary to the record and thus failed to amount to
good cause for his dismissal. California courts, like the fed-
eral courts, prohibit juries from “discuss[ing] or consider[ing]
the subject of penalty or punishment” in cases in which they
have no sentencing responsibility, because the penalty that
might result from a guilty verdict does not bear on the factual
question of the defendant’s guilt. CALJIC 17.42; see Shannon
v. United States, 512 U.S. 573, 579 (1994). A juror’s disre-
gard for such an instruction may in some instances provide
good cause to discharge him. But it is plain from the record
that Juror No. 6 did not disregard the instruction here, and
thus no good cause for his removal existed. Cf. Taylor, 366
F.3d at 1001.
According to the jury foreman, when he prepared his note
to the trial court to report a juror who had “expressed concern
relative to the severity of the charge,” he originally wrote “se-
verity of the punishment.” He then erased “punishment” and
replaced it with “charge,” when “there seemed to be a consen-
sus that that word [“punishment”] should be removed.”
Although the foreman “believe[d] that punishment is part of
the issue in this other juror’s mind,” he did not say that Juror
No. 6 had ever mentioned “punishment” and did not other-
wise provide a basis for his belief. Indeed, only one juror,
Juror No. 5, was even “pretty sure” he recalled the word “pen-
alty” ever being used. When asked directly, none of the other
jurors remembered the question of punishment or penalty
WILLIAMS v. CAVAZOS 6739
being raised. To the contrary, a number of them expressly
denied that it had, distinguishing between the “charge” and
the “penalty” or the “consequences,” and explained that only
the former had been mentioned.
Faced with this clear “consensus” among the jury and near
unanimity, there could not have been good cause to dismiss
Juror No. 6 for being “concerned about the severity of the
charge, which means the severity of the punishment,” because
“they really are interchangeable.” Rather, it is clear that the
jurors understood the two to be distinct. As noted above, for
a juror to say to his peers during deliberations that the case
before them is an important one, involving serious charges,
and that they should apply the beyond a reasonable doubt
standard most carefully and deliberately, is not good cause for
removal by any means.
4
[11] Finally, the trial court’s determination that Juror No.
6 was “lying in court” about what had been discussed during
deliberations is directly contradicted by the record. The tran-
script of Juror No. 6’s testimony reveals that he never
“stat[ed] that no juror including himself had discussed the
severity of the charge,” as the trial court found. (Emphasis
added). To the contrary, when the trial judge recognized the
ambiguity of the prosecutor’s question, “Has anyone dis-
cussed the severity of the charge?” to which Juror No. 6
responded, “No, not that I recall,” he then asked, “Just to be
clear, have you made reference during deliberations to the
severity of the charge?” (Emphasis added). Juror No. 6 then
answered that, yes, he had talked about the importance of the
case. Similarly, Juror No. 6 never “stat[ed] that no juror
including himself had discussed . . . juror nullification.”
Again to the contrary, when asked by the prosecutor whether
there was “any discussion about what the judge described as
jury nullification,” Juror No. 6 responded, “Yes, someone . . .
raised the question whether juries always convict according to
6740 WILLIAMS v. CAVAZOS
the law, and I can remember I said sometimes they don’t,”
and he then mentioned the historical examples of which he
was aware. (Emphasis added).
The court’s determination is contradicted not only by the
record, but also by the court’s earlier finding made immedi-
ately after Juror No. 6 testified. At that time, the court
acknowledged that “actually, he sort of admitted that he had
discussed [the severity of the charge],” and then concluded,
“he isn’t lying, but intentionally withheld honest informa-
tion.” (Emphasis added). Nothing in the record, however,
indicated that Juror No. 6 had withheld anything, and the
court offered no indication of what it thought the juror might
have withheld.
We therefore conclude that the court’s finding that Juror
No. 6 was lying when he responded to the judicial inquiry in
court was manifestly erroneous as well, and thus cannot pro-
vide good cause for his removal. In so holding, we recognize
that credibility determinations fall largely within the purview
of the factfinder and can rarely be reversed on direct appellate
review, let alone on habeas. Nevertheless, this is not a case in
which a credibility determination was based on intangible fac-
tors, such as demeanor, or on statements that are not inher-
ently believable, or that conflict with other evidence. Rather,
the trial court relied solely upon its recollection of statements
made in court by the juror, which statements the juror in fact
never made, as the transcript reveals. As “the state courts
plainly . . . misstate[d] the record in making their findings,”
Williams is able to overcome the presumption of correctness
bestowed upon them. Taylor, 366 F.3d at 1001.
D
[12] For the reasons stated above, none of the elements of
the trial court’s determinations, individually or collectively,
regarding Juror No. 6 serve to establish the “good cause”
required by the Sixth Amendment to remove a deliberating
WILLIAMS v. CAVAZOS 6741
juror, particularly one who was neither refusing to follow the
law nor unwilling to deliberate. This is a separate reason,
independent of the Symington violation, to hold that the dis-
missal of a known holdout juror was unconstitutional. What
we are left with, then, are the conclusions (1) that at least a
reasonable possibility existed that Juror No. 6’s discharge
stemmed from his disagreement with his peers over their
views of the merits of the case, and (2) that there was no good
cause to justify the juror’s discharge.
Either conclusion standing alone would warrant reversal.
Together, the constitutional violation is well beyond doubt. At
most, the trial court inartfully identified some inchoate unease
it felt about the juror, who was the only one not yet ready to
vote to convict. Such unease, however, did not allow the court
to discharge Juror No. 6, especially in light of the earlier dis-
closure of his views of the sufficiency of the evidence. The
trial court’s action deprived Williams of her constitutional
right to a fair trial by jury.
IV. CONCLUSION
A hung jury is never a desirable outcome in a criminal trial.
When a mistrial results, the interest shared by the State, the
defendant, the court, and the public in the efficient adminis-
tration of justice is diminished. The sacrifice of efficiency for
the preservation of liberty is central, however, to the safe-
guards the Constitution affords criminal defendants. If “[m]en
must turn square corners when they deal with the Govern-
ment,” it is even more true that the government, including the
courts, may not cut corners when dealing with man’s free-
dom. Rock Island, Ark. & La. R.R. v. United States, 254 U.S.
141, 143 (1920). Unfortunately, the trial court cut some cor-
ners here. In view of the reasonable possibility that Juror No.
6’s discharge was directly or indirectly the result of his posi-
tion on the merits of the case, and in view of the lack of good
cause to justify his dismissal, we hold that the removal of
Juror No. 6 deprived Williams of her right to a fair trial by
6742 WILLIAMS v. CAVAZOS
jury. We therefore reverse the judgment of the district court
and remand with instructions to grant the writ.
REVERSED and REMANDED.