Barnes v. Thomas

• Decision Date: 18 December 2019
• Docket Number: No. 18-5,18-5
• Citation: 984 F.3d 276 (Mem)
• Parties: William Leroy BARNES, Petitioner - Appellant v. Edward THOMAS, Warden, Central Prison, Raleigh, North Carolina, Respondent - Appellee
• Court: U.S. Court of Appeals — Fourth Circuit

984 F.3d 276 (Mem)

William Leroy BARNES, Petitioner - Appellant

v.Edward THOMAS, Warden, Central Prison, Raleigh, North Carolina, Respondent - Appellee

No. 18-5

United States Court of Appeals, Fourth Circuit.

FILED: December 18, 2019

ORDER

The court denies the petition for rehearing and rehearing en banc.

A requested poll of the court failed to produce a majority of judges in regular active service and not disqualified who voted in favor of rehearing en banc. Chief Judge Gregory, Judge Motz, Judge King, Judge Keenan, Judge Wynn, Judge Diaz, Judge Floyd, Judge Thacker, and Judge Harris voted to deny rehearing en banc. Judge Wilkinson, Judge Niemeyer, Judge Agee, Judge Richardson, Judge Quattlebaum, and Judge Rushing voted to grant rehearing en banc.

Judge Wynn submitted a statement concurring in the denial of rehearing en banc. Judge Agee and Judge Wilkinson each submitted statements dissenting from the denial of rehearing. These statements are attached to this order.

Entered at the direction of Judge Floyd.

WYNN, Circuit Judge, concurring in the denial of rehearing en banc:

The question in this case is whether juror misconduct—seeking the religious advice of a pastor about the death penalty during jury deliberations and then relaying that communication to fellow jurors—had a substantial and injurious effect or influence on the jury's decision to impose the death penalty on Petitioner Barnes. The question is not what legal standard applies. See Brecht v. Abrahamson , 507 U.S. 619, 638, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) ("[W]e hold that the Kotteakos [v. United States , 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946) ] harmless-error standard applies in determining whether habeas relief must be granted because of constitutional error of the trial type."). And the question is not whether this Court's previous decision in Barnes’ favor was incorrect. Barnes v. Joyner , 751 F.3d 229 (4th Cir. 2014) (hereinafter Barnes I ). And the question is not whether, systemically, federal courts grant too much habeas relief. Habeas relief does not operate on a quota system.

Again, to be absolutely clear: The question in this case is whether juror misconduct—seeking the religious advice of a pastor about the death penalty during jury deliberations and then relaying that communication to fellow jurors—had a substantial and injurious effect or influence on the jury's decision to impose the death penalty on Petitioner Barnes.

The facts show that it did.

The panel majority opinion presented a compelling account of what transpired. In a North Carolina court, a jury found Petitioner Barnes guilty of first-degree murder.

Barnes v. Thomas , 938 F.3d 526, 529 (4th Cir. 2019) (hereinafter Barnes II ). At closing arguments in the sentencing phase, an attorney representing a co-defendant argued that the jury, if it imposed the death penalty, would be judged by God for violating one of the ten commandments, specifically, "Thou shalt not kill." Id. (quoting J.A. 1532). One of the jurors, Hollie Jordan, was offended by the argument and saw that another juror looked upset. Id. at 530. After the first day of deliberations, before the jury had reached a decision, Juror Jordan discussed the case—including a discussion of pictures of the crime scene—with her pastor and asked if the jurors would "burn in hell" if they imposed a death sentence. Id. at 531 (quoting J.A. 2269). She asked this question despite allegedly having already decided to vote for the death sentence.¹ Id. at 532. The pastor replied that the jurors would not burn in hell, gave her Bible verses to support his opinion, and told Juror Jordan that the jurors "had to live by the laws of the land." Id. at 531-32 (quoting J.A. 2271).

The very next day, Juror Jordan spoke with her fellow jurors about her conversation with the pastor. Id. at 532. She relayed to them that they would not "burn in hell," and she read the Bible verses her pastor had suggested. J.A. 2274. Another juror testified that she thought Juror Jordan "was trying to convince someone to -- it was okay to give him the death penalty."² J.A. 2295. The jury subsequently voted to impose the death penalty.

The unmistakable import of these facts is that Juror Jordan sought out her pastor's opinions about the death penalty and then presented those opinions to her fellow jurors for the purpose of influencing another juror's vote. She solicited an authoritative outside opinion about sentencing, and the pastor gave her one. The prejudice is clear and meets the standard of "grave doubt" and "virtual equipoise." Barnes II , 938 F.3d at 534, 536 (quoting Lawlor v. Zook , 909 F.3d 614, 634 (4th Cir. 2018) ).

Nevertheless, the dissent contends that "the record here shows only a conversation that did not touch upon Barnes’ guilt or the appropriate sentence." Dissent of Agee, J., infra at 281. The argument is that the pastor's communication was "of such a neutral and tangential nature to the issue before the jury that it could not have had an ‘injurious effect or influence’ on the jury's sentencing decision." Barnes II , 938 F.3d at 540 (Agee, J., dissenting) (quoting Brecht , 507 U.S. at 627, 113 S.Ct. 1710 ). This requires accepting that the conversation about burning in hell for imposing the death penalty was not about the death penalty. See Dissent of Agee, J., infra at 282 ("Nor is there any evidence that the pastor opined about the morality of the death penalty generally .... [T]he conversation was limited to whether serving on a jury faced with the decision between life imprisonment and the death penalty may result in the juror ‘burn[ing] in hell.’ " (quoting J.A. 2273)).

Put simply, this part of the dissenting opinion's analysis divorces answer from question. The question of going to hell for imposing a sentence was not neutral and tangential to sentencing. It was a question about sentencing. Thus, the pastor's answer was about sentencing.

The dissenting opinion diverts attention from the natural reading of the pastor's answer by shifting focus to the pastor's advice to "live by the laws of the land." Barnes II , 938 F.3d at 541 (Agee, J., dissenting) ("Instead, the pastor noted the Bible instructed Christians to ‘live by the laws of the land.’ " (quoting J.A. 2273)). The dissenting opinion suggests this is comparable to a judge reiterating jury instructions, id. at 542-43 (citing Crease v. McKune , 189 F.3d 1188, 1190, 1192-94 (10th Cir. 1999) ), or to "a casual, time-of-the-day greeting," id. at 543 (quoting United States v. Day , 830 F.2d 1099, 1104 (10th Cir. 1987) ). But an instruction of a pastor to follow the law is not the same as the instruction of a judge to follow the law. A judge who explains the felony murder rule to a juror, Crease , 189 F.3d at 1190, is a secular legal authority speaking on secular legal matter. A pastor opining to a juror on the death penalty as it relates to God, the Bible, hell, and the "law of the land" is a religious authority speaking on a mixed religious-secular legal matter. These are not equivalent.

Moreover, it is unclear on the record what the pastor meant by "live by the laws of the land." Juror Jordan testified that the pastor's verses from the Bible "explained everything." J.A. 2271. Thus, to fully understand "live by the laws of the land," we need to know what else the pastor said. However, as the dissenting opinion rightly points out, the evidence does not pincite which Bible verses the pastor used to clarify his meaning. Barnes II , 938 F.3d at 541 n.5 (Agee, J., dissenting). But we do have information about their substance.

One juror recalled that one of the Bible passages that Juror Jordan read to the jury concerned "eye for an eye and tooth for a tooth." J.A. 2281. While we may not know whether the verse came from the Old Testament or the New Testament, Barnes II , 938 F.3d at 541 n.5 (Agee, J., dissenting), we do know that over twenty years later, the impact of the pastor's curated verses was such that the part this juror remembered was "eye for an eye and tooth for a tooth." J.A. 2281. This statement suggests that equivalent retribution is the measure of an appropriate sentence. Artificially isolating the phrase "live by the laws of the land" to claim it impartially endorses North Carolina law ignores both the context of the question asked and the limited evidence we have about the rest of the pastor's answer. No evidence in the record supports the dissenting opinion's characterization that the pastor's views merely matched the laws of North Carolina and the jury instructions (which Juror Jordan violated by speaking with him); we know that different religious authorities interpret the same Biblical passages in different ways. "Live by the laws of the land," like the rest of the pastor's comments, expresses an opinion—one incompletely explained in the record but connected to "[an] eye for an eye"—about how the jurors should sentence the defendants.

Viewing the dissenting opinion as a whole—the way it splits the answer from the question, the way it treats a pastor like a judge, the way it purports to interpret "live by the laws of the land" without considering the accompanying gloss—the dissenting opinion treats the opinions of the pastor as legal authority rather than religious opinion. This approach might be understandable if prejudice could only be found on a material alteration of the facts or law by which the jurors determine an issue. See Barnes II , 938 F.3d at 544 (Agee, J., dissenting). Misconduct involving an officer of the court likely affects such matters. But this approach is unsound—as illustrated by this case—because, as the panel majority opinion correctly states, "a prejudicial influence need not take the form of a third party directly telling jurors how they should vote or introducing new facts or law for their consideration." Id. at 536 (citing Turner v. Louisiana , 379 U.S. 466, 473-74, 85 S.Ct. 546, 13 L.Ed.2d 424 (1965) ). By making assumptions on this...