United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
July 20, 2005
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 04-70023
CARL L. BROOKS,
Petitioner-Appellant,
versus
DOUG DRETKE, Director, Texas Department of Criminal Justice,
Correctional Institutions Division,
Respondent-Appellee.
Appeal from the United States District Court
For the Western District of Texas, San Antonio
Before HIGGINBOTHAM, DAVIS, and PRADO, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
On the first day of the sentencing phase of his capital trial,
a member of the jury that had convicted Carl L. Brooks was arrested
for the misdemeanor offense of unlawfully carrying a weapon and
faced prosecution by the district attorney’s office then
prosecuting Brooks. A loaded pistol was found in his briefcase in
the routine screening of a security checkpoint in the courthouse.
Whether this jury misconduct tainted the jury’s sentencing decision
of death is the only issue remaining in this case today. We are
persuaded that while the conviction of capital murder must stand
the sentence of death must be vacated.
I
Carl L. Brooks was convicted by a Texas jury of the capital
murder of Frank Johnson in the course of a robbery and sentenced to
death. The Texas Court of Criminal Appeals affirmed1 and the
Supreme Court denied certiorari.2 Brooks filed a writ of habeas
corpus in state court. Judge Pat Priest, sitting by assignment in
the 175th District Court in Bexar County, Texas, presided at the
trial and conducted evidentiary hearings on Brooks’s petition for
post-conviction relief under Article 11.071 of the Texas Code of
Criminal Procedure:
On the evening of April 21, 1997, applicant was
convicted by the jury of the offense of Capital Murder as
charged in the indictment. After reaching a verdict on
the issue of guilt, the jury retired for the evening. At
the onset of the punishment phase, counsel for applicant
moved for a mistrial on the grounds that one of the
jurors (juror Garcia) had been arrested that morning for
entering the courthouse with a handgun. This court found
that the juror had been “booked and released on P.R.
bond” and as a result was “available for jury service”.
That motion for mistrial was denied. The applicant then
requested that this Court remove the juror on the grounds
that he was disabled. That request was also denied. At
the request of the applicant, this Court made an inquiry
of the juror. During questioning by the court, it was
established that the juror had not informed other members
of the jury of his arrest. The juror also informed the
court that his arrest would in no way impede his ability
to be fair to the applicant during the remainder of the
trial. No further relief was requested by the applicant.
1
Brooks v. State, 990 S.W.2d 278 (Tex. Crim. App. 1999).
2
Brooks v. Texas, 528 U.S. 956 (1999).
2
The trial continued with Juror Garcia.
. . .
This claim for relief was a subject of the
evidentiary hearing conducted at the applicant’s request.
The juror in question testified at the evidentiary
hearing, along with the members of the District
Attorney’s Office involved in the subsequent prosecution
of juror Garcia.
Garcia was arrested while passing through the
security checkpoint on the first floor of the Bexar
County Criminal Justice Center on April 22, 1997. The
arrest was based upon the fact that Garcia carried a .25
caliber pistol in his briefcase upon entering the Justice
Center. At the time of his arrest, Garcia explained to
the arresting officer that he was carrying the pistol
because he was planning to take it to the gunsmith for
repairs.
Garcia related that he was not carrying the pistol
because he feared for his personal safety at the time of
the trial. Moreover, his arrest did not influence him in
his deliberations regarding applicant’s punishment.
Garcia’s fellow jurors were unaware of his arrest
throughout the remainder of the proceedings. The event
was not a subject of discussion during jury
deliberations. At no point did Garcia have any off-the-
record conversations with members of the District
Attorney’s Office regarding the disposition of his case.
Garcia did not vote at the punishment phase in a fashion
designed to ingratiate himself with the District
Attorney’s Office in hopes of obtaining some species of
leniency in the future.
Garcia related that his vote to assess the death
penalty upon the applicant, was based solely upon the
evidence presented during the course of the trial and was
wholly unrelated to the charge pending against him.
Garcia had no contact with any members of law enforcement
regarding his charge, with the exception of the arresting
officer.3
3
Ex Parte Brooks, No. 96CR0292-W1, at 3-5 (175th Dist. Ct., Bexar County,
Tex. May 5, 2000) (unpublished) (findings of fact and conclusions of law)
(citations omitted).
3
The Texas Court of Criminal Appeals adopted the findings of
fact and conclusions of law of the state trial court and denied
Brooks’s state application for a writ of habeas corpus.4 Brooks
then filed his application for a federal writ under 28 U.S.C.
§ 2254 on April 4, 2003. The federal district court judge denied
all relief on June 2, 2004,5 and denied a certificate of
appealability two weeks later. We then granted a certificate of
appealability,6 only upon the claim that the verdict of the jury in
the sentencing phase of the trial was tainted by the arrest of the
juror.7
II
Brooks urges that the trial judge should have granted his
motion for mistrial, which he filed upon learning of Garcia’s
arrest and arraignment. The contention is that the same district
attorney’s office prosecuting Brooks for capital murder was
prosecuting a member of the jury deciding his fate. This
circumstance, however innocent on the part of the juror and however
pure the motive of the prosecution in the filing of the initial
charge, created an intolerable inherent risk of abuse. The
4
Ex Parte Brooks, No. 45,631-01 (Tex. Crim. App. Sept. 13, 2000)
(unpublished).
5
Brooks v. Dretke, No. SA-00-CA-1050-FB (W.D. Tex. Jun. 2, 2004)
(unpublished).
6
See Brooks v. Dretke, 404 F.3d 924 (5th Cir. 2005).
7
This claim was briefed as three issues. See id. at 925-26 (issues 2-4).
4
argument is that throughout the sentencing phase of the trial and
deliberations over the sentence, Garcia faced the reality that his
own fate would be decided by a prosecutor exercising virtually
unreviewable discretion over his offense--an offense that could
have been charged up to a third degree felony.
The State argues that the state proceedings have demonstrated
that there was no actual bias; that Brooks must rely on what, in
the State’s view, is an unsettled doctrine: implied bias. It next
replies that the arresting officer charged Brooks unlawfully
carrying a weapon, a misdemeanor,8 not the felony offense of going
with a firearm into a courthouse;9 that Garcia was in fact never
charged with a felony and pled to the possession charge. Moreover,
the State urges that it could not have sustained a felony
prosecution on these facts in that the statute at the time required
entry into a courtroom, although it was later amended to reach
entry onto the premises of a courthouse.10
8
See TEX. PENAL CODE ANN. § 46.02(a) (Vernon 1994) (“A person commits an
offense if he intentionally, knowingly, or recklessly carries on or about his
person a handgun . . . .”); TEX. PENAL CODE ANN. § 46.02(e) (Vernon 1994) (offense
is class A misdemeanor).
9
See TEX. PENAL CODE ANN. § 46.03(a)(3) (Vernon Supp. 1996) (“A person
commits an offense if, with a firearm, . . . he intentionally, knowingly, or
recklessly possesses or goes . . . in any government court or offices utilized
by the court, unless pursuant to written regulations or written authorization of
the court.”); TEX. PENAL CODE ANN. § 46.03(g) (Vernon Supp. 1996) (offense is third
degree felony).
10
In 2003, § 46.03(a)(3) was amended to make it an offense to
intentionally, knowingly or recklessly possess a firearm “on the premises” of--
rather than just “in”--any government court or offices utilized by the court.
See Act of June 20, 2003, 78th Leg., R.S., ch. 1178, § 3, 2003 Tex. Sess. Law
Serv. 3364 (Vernon).
5
A
This is not a case of jury tampering or outside information
finding its way to a juror. Nor is it a case of misconduct by a
juror while performing his duties, although he was headed into the
courthouse to resume work as a juror. Rather, this case involves
a juror, Garcia, who found himself in a position of potential
conflict between his duty and his self-interest. Further, this is
not a case where the trial judge failed to respond properly. To
the contrary, on learning of Garcia’s arrest, the trial judge
questioned Garcia out of the presence of the other jurors and in
the presence of all counsel, insuring that others had not and would
not learn of what had happened. He also accepted the assurances of
Garcia that this would have no effect on his deliberations. In
short, there can be no claim of deficiency in the procedural
response to the arrest of the juror. The trial judge did all that
he could do, short of seating a new jury.11
We cannot know whether Garcia’s assurances of fairness were
realized even if we accept as we do the trial court’s finding of
his credibility. In general, we have responded to this reality in
two ways. In one small set of circumstances, we have been
unwilling to accept a juror’s claims of fairness; rather, we have
11
We do not speculate on other choices that the state trial judge may have
had such as seating an alternate. The record sheds no light on this question.
We assume that the choices were to do as he did or to empanel a new jury for the
sentencing phase of the trial.
6
implied bias and ordered new trials.12 While we recently
summarized the law in this circuit and need not march that ground
again,13 it bears emphasis that while we are persuaded that the
principle of implied bias is settled federal law, its application
has been confined to a narrow range of cases. As Justice O’Connor
once opined:
While each case must turn on its own facts,
there are some extreme situations that would
justify a finding of implied bias. Some
examples might include 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.14
In a second set of cases, we have refused to imply bias and
held that post-verdict hearings to determine bias is an adequate
response, guided in our path by Supreme Court precedent.15 In
Remmer v. United States,16 the Court found presumptive prejudice in
an unsuccessful effort to bribe a juror; but rather than order a
new trial, instructed the trial judge to conduct a hearing into the
12
See, e.g., United States v. Scott, 854 F.2d 697, 700 (5th Cir. 1988);
see also Smith v. Phillips, 455 U.S. 209, 222-23 (1982) (O’Connor, J.,
concurring); cf. Leonard v. United States, 378 U.S. 544 (1964).
13
Solis v. Cockrell, 342 F.3rd 392 (5th Cir. 2003).
14
Phillips, 455 U.S. at 222 (O’Connor, J., concurring) (emphasis added),
quoted in Scott, 854 F.2d at 699.
15
See, e.g., Solis v. Cockrell, 342 F.3d 392, 399-400 (5th Cir. 2003);
United States v. Sylvester, 143 F.3d 923 (5th Cir. 1998); see also Smith v.
Phillips, 455 U.S. 216 (1982); Remmer v. United States, 347 U.S. 227 (1954).
16
347 U.S. 227 (1954).
7
circumstances to determine prejudice.17 Then, in Smith v.
Phillips,18 the Court declined to imply bias where a juror in a
murder trial applied for a job in the district attorney’s office,
a fact not disclosed until after the conviction. Reviewing
caselaw, the Court summed up: “These cases demonstrate that due
process does not require a new trial every time a juror has been
placed in a potentially compromising situation.”19 The Court
continued:
Due process means a jury capable and willing
to decide the case solely on the evidence
before it, and a trial judge ever watchful to
prevent prejudicial occurrences and to
determine the effect of such occurrences when
they happen. Such determinations may properly
be made at a hearing like that ordered in
Remmer and held in this case.20
Justice O’Connor concurred, making clear that in certain narrow
circumstances where implied bias is found, “a hearing may be
inadequate for uncovering a juror’s biases.”21 We, in turn, made
clear in United States v. Scott that the law in this Circuit tracks
Justice O’Connor’s view.22
Lower courts have divided over whether Remmer’s presumption of
17
Id. at 230.
18
455 U.S. 216 (1982).
19
Id. at 217.
20
Id.
21
Phillips, 455 U.S at 222 (O’Connor, J., concurring).
22
854 F.2d at 699.
8
prejudice survived Phillips as well as the later decision of the
Court in United States v. Olano.23 While a panel of this court
concluded in United States v. Sylvester24 that Remmer and Phillips
had ended the “presumption of prejudice,” it did not address
implied bias, seeing the issue in Sylvester to be where the burden
of proof properly lay. It held that the government had no burden to
prove the absence of prejudice until the court on inquiry
determines that prejudice is likely. The determination of implied
bias is an objective legal judgment made as a matter of law and is
not controlled by sincere and credible assurances by the juror that
he can be fair.25 By definition then, rules for hearings into
actual bias such as shifting burdens of proof are not in play in
the narrow range of cases in which it is implied.
B
Our question is whether Garcia’s conduct is of the genre of
cases Justice O’Connor pointed to in her concurring opinion in
Phillips: juror conduct not salvageable by post event hearings. We
think that the answer to this question is yes. Garcia was married
with two young children. As he listened to the evidence in the
sentencing phase and participated in the jury’s decision of the
23
507 U.S. 725 (1993); see Parker v. Head, 244 F.3d 831, 839 n.6 (11th
Cir. 2001) (collecting cases).
24
143 F.3d 923 (5th Cir. 1998).
25
See United States v. Wood, 299 U.S. 123, 133 (1936) (“The bias of a
prospective juror may be actual or implied; that is, it may be bias in fact or
bias conclusively presumed as matter of law.”), quoted in Solis, 342 F.3d at 395.
9
State’s contention that Brooks should be put to death he was facing
a stunning turn of events in his own life. He could have been
sentenced to a year in jail; worse yet, he could have faced a
felony prosecution, notwithstanding the State’s interpretation in
this case of the older version of the Texas gun possession statute.
True enough he was not an employee of the district attorney’s
office, but in practical ways his future was even more in its
hands. Garcia testified that the sentencing hearing “was one
entire week of hell” and he suffered “unrelenting embarrassment.”
He thought the matter of his arrest was to be held in confidence,
but his “name and this case [was] the head story at twelve, five,
six and ten o’clock for four straight days.”
We do not suggest that being charged with unlawfully carrying
a weapon alone disqualified Garcia for jury service under state law
or that any outstanding misdemeanor charge should support a finding
of implied bias. It is rather the sum of all factual circumstances
surrounding this juror--in particular, the power of the District
Attorney, and the timing and sequence of events--that compels this
conclusion.26 As Lord Coke put it, a juror must be as “indifferent
as he stands unsworne.”27 That there is no evidence that the
District Attorney did anything to exploit his power over juror
Garcia is of no moment. That the power presents an intolerable
26
Precedent to and implicit in our finding of implied bias is the judgment
that reasonable jurists could not disagree with our legal conclusion.
27
Co. Litt. 155b, quoted in Turner v. Louisiana, 379 U.S. 466, 472 (1965).
10
risk of working its will without the raising of a hand or a nod is
the vice here.
III
The State further argues that Teague v. Lane28 bars application
of the implied bias doctrine in this case. The State’s argument is
not without weight, as the Supreme Court has never explicitly
required a new trial based on implied bias.29 However, the Court
has long acknowledged the principle,30 and has implicitly applied
it to require a new trial.31 That is, it is a settled principle of
law that there is a set of cases in which misconduct by a juror
cannot be ameliorated by a hearing. While the Supreme Court has
oft-rejected application of the implied bias principle, in cases
such as Remmer and Phillips, it has never rejected the principle
itself. Where, as here, we are merely undertaking the case-by-case
application of a settled principle, Teague is not implicated.32
28
489 U.S. 288 (1989).
29
See Phillips, 455 U.S. at 222 (O’Connor, J., concurring); also id. at
216-17 (noting that the Court had addressed and rejected claims of implied juror
bias in Dennis v. United States, 339 U.S. 162 (1950) and Chandler v. Florida, 449
U.S. 560 (1981)).
30
See, e.g., Wood, 299 U.S. at 133.
31
See Phillips, 455 U.S. at 223 (O’Connor, J., concurring) (“[T]his Court
[in Leonard v. United States, 378 U.S. 544 (1964)] has used implied bias to
reverse a conviction.”).
32
See Burdine v. Johnson, 262 F.3d 336, 350-57 (5th cir. 2001)
(Higginbotham, J., concurring); id. at 352 (noting that the “distinction between
cases presenting new rules and cases presenting new facts is central to the
functioning of Teague” and that “Teague does not bar a federal court from
reviewing the application of an old rule to new facts in state court”).
11
IV
The judgment of the District Court denying federal habeas is
reversed. This case is remanded to the district court for entry of
an order directing the State of Texas to either conduct a new
sentencing hearing or impose a sentence of other than death as
provided by applicable state law.
REVERSED and REMANDED with instructions.
12