Jeffries v. Wood, 95-99003

• Decision Date: 24 January 1996
• Docket Number: No. 95-99003,95-99003
• Citation: 75 F.3d 491
• Parties: 96 Cal. Daily Op. Serv. 484, 96 Daily Journal D.A.R. 800 Patrick James JEFFRIES, Petitioner-Appellee, v. Tana WOOD, Superintendent, Respondent-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 491

75 F.3d 491

96 Cal. Daily Op. Serv. 484, 96 Daily Journal

D.A.R. 800

Patrick James JEFFRIES, Petitioner-Appellee, v. Tana WOOD, Superintendent, Respondent-Appellant.

No. 95-99003.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Nov. 28, 1995.

Decided Jan. 24, 1996.

Robert Mahler, MacDonald, Hoague & Bayless, Seattle, Washington, for petitioner-appellee.

Paul D. Weisser, Assistant Attorney General, Olympia, Washington, for respondent-appellant.

Appeal from the United States District Court for the Western District of Washington.

Before: GOODWIN, FARRIS and FERNANDEZ, Circuit Judges.

OPINION

GOODWIN, Circuit Judge:

The State of Washington, in the name of its chief prison official, appeals the judgment which, after a remand from this court, granted Patrick James Jeffries' petition for a writ of habeas corpus. In 1983, Jeffries was convicted in Clallam County Superior Court and sentenced to death on two counts of aggravated first-degree murder.

The Washington Supreme Court affirmed Jeffries' conviction and sentence on direct appeal. State v. Jeffries, 105 Wash.2d 398, 717 P.2d 722), cert. denied, 479 U.S. 922, 107 S.Ct. 328, 93 L.Ed.2d 301 (1986). Jeffries filed three personal restraint petitions in state court, all of which the Washington Supreme Court denied. In re Jeffries, 722 P.2d 99 (1986); In re Jeffries, 110 Wash.2d 326, 752 P.2d 1338, cert. denied, 488 U.S. 948, 109 S.Ct. 379, 102 L.Ed.2d 368 (1988); In re Jeffries, 114 Wash.2d 485, 789 P.2d 731 (1990).

Two years after Jeffries was sentenced, two jurors filed affidavits, describing a juror's misconduct. (A juror, during a recess while the trial was in progress, had, indeed, told one or more fellow jurors that Jeffries was an ex-convict, on parole, for a prior robbery, at the time he was accused of robbing and murdering the victims).

The federal habeas corpus proceedings began in 1990, alleging, inter alia, the juror misconduct. See Jeffries v. Blodgett, 771 F.Supp. 1520 (W.D.Wash.1991). In assessing whether the alleged juror misconduct deprived Jeffries of a fair trial, the district court conscientiously followed the teaching of Bayramoglu v. Estelle, 806 F.2d 880, 887 (9th Cir.1986). The district court concluded that even if the alleged juror misconduct had occurred, it did not affect the verdict. Jeffries, 771 F.Supp. at 1538-39.

We affirmed the district court's resolution of all of the issues on the first appeal to this court, including the juror misconduct question. See Jeffries v. Blodgett, 974 F.2d 1179 (9th Cir.1992). However, on Jeffries' petition for rehearing, we withdrew the opinion reported at 974 F.2d 1179, vacated the judgment which had denied the writ, and remanded for a decision on the question of fact whether juror misconduct as discussed in the opinion had actually occurred. See order and opinion in Jeffries v. Blodgett, 988 F.2d 923 (9th Cir.1993), and Dissent by Judge Fernandez, id. at 941. That opinion was then amended by Jeffries v. Blodgett, 5 F.3d 1180 (9th Cir.1993), Judge Fernandez concurring and dissenting, Id. at 1198, after denial of a petition for rehearing and rejection of rehearing en banc.

During our consideration of the petitions for rehearing, we became aware of a possible conflict between our September 9, 1992, opinion and Dickson v. Sullivan, 849 F.2d 403 (9th Cir.1988), which did not appear to have been briefed or argued in this case before the district court. Nor was Dickson mentioned in our first opinion affirming the denial of the writ. However, Dickson came to dominate our consideration of the Jeffries petition for rehearing, and later, of the state's petition for rehearing.

Dickson is, obviously, an important case on jury verdicts tainted by improper communications with a jury by officers of the court. Dickson, coincidentally, is a direct descendant of Parker v. Gladden, 385 U.S. 363, 87 S.Ct. 468, 17 L.Ed.2d 420, (1966), which reversed the Oregon Supreme Court (opinion reported at 245 Or. 426, 407 P.2d 246 (1965)), which had treated the statements of a garrulous bailiff to one or more jurors as harmless error. Dickson, having originated in Oregon and sharing some facts with Parker v. Gladden, supra, with reference to jury contamination by officers of the court (deputy sheriffs) communicating with jurors, was taken very seriously by the panel considering Jeffries' petition for rehearing. The author of this opinion had participated in the state court decision in Parker v. Gladden, and was once again being taken to task for treating as harmless error jury contamination by information external to the testimonial record.

For whatever reason, intensive advocacy, judicial speed reading, or an older appellate judge reacting to scholarly criticism long after the Parker reversal when he was younger, or all of the above, the author of our opinion affirming the denial of the writ proceeded to argue to his colleagues that perhaps we had been wrong, and that we should grant Jeffries' petition for rehearing. See Jeffries, 5 F.3d at 1191 (obscuring the difference between the Dickson contamination by officers of the court, and internal contamination within the jury itself by the misconduct of a juror).

On remand, the district court, in a carefully considered review of the record and juror affidavits, restated its earlier finding that the juror misconduct had been harmless on the whole record of the case. The juror's breach of the general instruction to consider only the evidence presented in the trial did not announce any information that had not been common knowledge in the venue. All the jurors had promised to put out of their minds any information they had learned from the news media or from friends and neighbors, and to decide the case only on the evidence. One juror broke the rule. The district court treated this inherent weakness in the jury system as harmless in this case, but held, however, under the compulsion of our dictum in the opinion remanding the case ¹, that the writ was to be granted.

The state, as noted, now has appealed, asserting that our remand decision was based upon an incorrect application of the law, and to the extent it compelled the district court to grant the writ, it was wrong. The appeal urges this court now to correct its error, and to vacate the judgment granting the writ. Jeffries argues that we were right when we granted his petition for rehearing and remanded the case, and that the doctrine of the law of the case precludes reexamination of the juror misconduct issue on the state's appeal from the district court's granting of the writ under compulsion of our opinion in Jeffries v. Blodgett, 5 F.3d 1180, supra.

The Law of the Case

When a court changes its mind during trial, appeal, or consideration of a petition for rehearing, the more common proceedings in which a court may change the course of the litigation, the question of "law of the case" immediately comes to mind. This salutary doctrine guides, but does not necessarily handcuff, judicial discretion. As Justice Holmes noted in Messinger v. Anderson, 225 U.S. 436, 444, 32 S.Ct. 739, 740, 56 L.Ed. 1152 (1912), "[I]n the absence of statute the phrase, 'law of the case', as applied to the effect of previous orders on the later action of the court rendering them in the same case, merely expresses the practice of courts generally to refuse to reopen what has been decided, not a limit to their power."

"Thus the court may reconsider previously decided questions in cases in which there has been an intervening change of controlling authority, new evidence has surfaced, or the previous disposition was clearly erroneous and would work a manifest injustice." Leslie Salt Co. v. United States, 55 F.3d 1388, 1393 (9th Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 407, 133 L.Ed.2d 325 (1995); see also Hegler v. Borg, 50 F.3d 1472, 1475 (9th Cir.), cert. denied...