[00:00:19] Speaker 02:
Good morning, Your Honours.

[00:00:19] Speaker 02:
May it please the Court.

[00:00:21] Speaker 02:
Vivian Field on behalf of Petitioner Appellant Larry Bishop, I would like to reserve two minutes for rebuttal and I will watch the clock.

[00:00:28] Speaker 02:
This claim arises from the denial of Mr. Bishop's federal habeas petition under EDPA.

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This case is unusual on two points.

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First,

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Juror number five admitted to intentionally hiding her employment in the LAPD gang and narcotics unit because she wanted to serve as a juror and because she believed correctly that she would be excused if she disclosed that information.

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And second, despite this extraordinary admission, which led the California Court of Appeal to assume misconduct and a presumption of prejudice, no evidentiary hearing was ever held and no juror, not even juror number five, was ever questioned after her actions came to light.

[00:01:04] Speaker 03:
Council, one thing I've been trying to figure out, I mean it seems clear to me reading the Supreme Court case law that there's a hearing requirement at some point along this way.

[00:01:12] Speaker 03:
But I'm trying to figure out exactly at what point in the analysis the hearing requirement is triggered.

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What is your view on that?

[00:01:21] Speaker 02:
Once the trial court was alerted of the intentional hiding of her employment, with the admitted motive of wanting to serve as a juror in this gang crimes case, and that she informed the rest of the jury about where she worked, coupled with her statements to the other jurors, once all of that was known, the trial court had a duty to investigate.

[00:01:44] Speaker 03:
So if I break it down based on the language in the cases, sort of step one is, do we have juror conduct that could possibly be prejudicial?

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And then if the answer is yes, your position is automatic hearing?

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No, no.

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Well, we recognize that a hearing is not required every time there's a claim of juror bias.

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But definitely, once a defendant has raised a colorable claim, the trial court has a duty to undertake it.

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What's the difference between possibly prejudicial and a colorable claim?

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Well, I think in this case, the claim is pretty strong.

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I think possibility leaves room for maybe it doesn't arise to the level where a hearing might be required.

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But I think in this case, where the state court actually found misconduct and a presumption of prejudice, I don't think there's any argument.

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The state court didn't find misconduct.

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It assumed misconduct.

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It assumed.

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But the analysis is based on its assumption.

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And it followed that assumption by deciding wasn't going to matter because there wasn't any prejudice.

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What would an evidentiary hearing have accomplished?

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Well, I think an evidentiary hearing, there's nothing in the record with respect to even the scope of her job, you know, what she did there, how closely she worked with gang officers.

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You know I mean the the the state focuses on the fact that you know she's a clerk But but she could be doing you know she could be transcribing.

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You know interviews with gang members I mean she could be Socially socializing with the the officers talking about their cases.

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There's no information on that and I think without that kind of factual

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development, it was unreasonable to not hold a hearing and to reject it.

[00:03:30] Speaker 01:
It's pretty clear that the court held some kind of a hearing.

[00:03:34] Speaker 02:
The court did hold a hearing on Mark.

[00:03:36] Speaker 01:
Your contention is that it was not an adequate form of hearing.

[00:03:39] Speaker 02:
Yes.

[00:03:40] Speaker 01:
Okay.

[00:03:41] Speaker 01:
Because this is EDPA, we have to look for clearly established

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Law as established by the Supreme Court not by this court What what case would tell us that the court was obligated to hold a different kind of hearing than the one that it held well?

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I would rely on Smith and Smith v. Phillips and the Bremer cases Williams v. Taylor McDonough, but I think for instance in Williams v. Taylor there was a juror who

[00:04:07] Speaker 02:
didn't reveal during voir dire that she was related to one of the witnesses because it was her ex-husband and They were divorced and so her her excuse was well.

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We weren't related but the the court still the Supreme Court remanded for an evidentiary hearing because it found that

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you know, her, at a hearing, the petitioner could have shown bias and more further factual development.

[00:04:38] Speaker 01:
Was there some kind of a hearing held in Williams?

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It was remanded.

[00:04:42] Speaker 01:
Okay, well, but did they, we have a hearing here.

[00:04:46] Speaker 01:
You're asking us to send this back because it was an inadequate hearing.

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Does Williams tell us what kind of a hearing we have to have or simply that we must have some kind of a hearing?

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Yes, I see your point your honor.

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I think it's basically Smith v. Phillips States that you know there's some sort of some some factual development has to be had I

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Our position is that in in this case the factual development There was no factual develop basically because so there was no there was a hearing on the motion for a new trial There was a hearing on the motion for a new trial evidence present no evidence was presented no jurors testified and I think without that the Petitioner mr. Bishop did not have the opportunity to show buys because there's there's no way without some kind of factual development There's no way that he could show that

[00:05:36] Speaker 02:
You know for instance she socialized with you know a fellow officer.

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She knew about the cases You know she said in her questionnaire that that she had no friends in law law enforcement And she'd work to just two separate jobs for the LAPD all of those things you know should have been explored and I think most importantly she gave this excuse of well, I just wanted to be on the juror and that's on the jury and that's why I

[00:06:00] Speaker 02:
I didn't reveal this, but that has to be tested.

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She was never questioned about that.

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If that were the case, anyone who lied about could say, oh, well, I just wanted to be on the jury, and that's why I lied.

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And if that was enough, I don't think that's constitutionally adequate under Smith, under Remmer, under Williams v. Taylor, under McDonough.

[00:06:29] Speaker 01:
I mean, the problem from our perspective, and unfortunately it's your problem as well, is that some kind of a hearing was held.

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If it's an inadequate hearing, I mean, we can't even go to something like, you know, Matthews versus Eldridge to say, this is the kind of hearing that should have been held.

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That would be direct review.

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But on EDPA, we've got to be able to point to something in the Supreme Court that would say, gee, had the California Court of Appeals read this case or read the case more carefully, they would have understood why this case had to go back.

[00:07:01] Speaker 01:
And that's the case that I'm asking for.

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Yeah.

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I think I would have to go back to also how I understood that Supreme Court cases are what?

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everyone is looking at, but how this court has interpreted Supreme Court cases with respect to... Well, that's relevant.

[00:07:24] Speaker 01:
I'll take a decision of our court saying this is what the Supreme Court has held.

[00:07:29] Speaker 02:
Well, Heaven Ryan has said that basically once a defendant has raised a colorable claim of bias, the trial court has a duty to undertake an investigation of relevant facts and circumstances.

[00:07:40] Speaker 02:
Dyer, Dyer v. Calderon, has made similar... Were those at the cases?

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Dyer was not.

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Headlin, I believe, was.

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U.S.

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Angelo, which also is not at Pub, but has made similar statements.

[00:07:58] Speaker 03:
Why doesn't Smith say this?

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This is the statement from Smith.

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This court has long held that the remedy for allegations of juror partiality is a hearing in which the defendant has the opportunity to prove actual bias.

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Opportunity to prove something means enough like how are you going to do that without evidence?

[00:08:13] Speaker 03:
Yes, that's that's Appellant on which is why my question is at what point along the test does the hearing?

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Obligation get triggered Okay, well, I think that I guess I could argue that the the

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The trial court in talking about the hearing basically characterized it as a preliminary hearing.

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So it said, and this is in the transcripts, it said, OK, we all agreed we're going to have this hearing on March 17th, but it's a preliminary hearing to decide whether we're going to have a hearing.

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So it wasn't really a hearing, I guess would be one argument.

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And it was a preliminary hearing about whether to have a hearing with the jurors.

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All right, do you want to save some time for questions?

[00:09:03] Speaker 02:
Yes, I do.

[00:09:04] Speaker 02:
Thank you.

[00:09:15] Speaker 04:
May it please the court, Jonathan Klein, Deputy Attorney General for Respondent.

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At the outset, Respondent does not condone juror number five's deliberate omission of information that she knew the parties would find relevant.

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The issue in this case is whether juror number five was biased.

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And on that score, the California Court of Appeal reasonably determined that she was not.

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It appears that counsel has not argued actual bias.

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She's only argued that the fact-finding process used by the state was deficient.

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So I will go directly to that.

[00:09:51] Speaker 03:
Can I ask you a question at the outset?

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It seems like one of our more recent and clear cases in terms of how we could do this analysis is our UNC decision in Godoy.

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Do you agree that that applies?

[00:10:02] Speaker 04:
No, Your Honor, I don't.

[00:10:04] Speaker 04:
Godoy was a case that involved third-party contact with a juror.

[00:10:10] Speaker 04:
And that goes along the lines of Remmer.

[00:10:13] Speaker 04:
And Remmer and another United States Supreme Court case, Maddox, did establish

[00:10:20] Speaker 04:
clear federal law that a hearing is required in those situations where there is contact with the juror.

[00:10:27] Speaker 03:
So you're going to just draw a distinction between maybe what we would call evidence tampering or juror tampering versus, I guess it's juror tampering versus juror bias.

[00:10:39] Speaker 04:
Yes, Your Honor.

[00:10:39] Speaker 03:
What in the Supreme Court case law, other than the fact that they address different fact patterns, tells us that there's a distinction between those two things?

[00:10:49] Speaker 04:
Well, there is authority saying that, and let me see if I can find it.

[00:10:54] Speaker 04:
You know, this court has said in Tracy v. Palmatier, 341 F3, 11037,

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Remmers, this is a quote, Remmers command that hearings are warranted in every case is unique to the tampering context where the potential effect on the jury is severe.

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So I think that's pretty clear.

[00:11:16] Speaker 04:
This court has already held that tampering context is unique.

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And that's not what we have here.

[00:11:24] Speaker 03:
I guess I don't know what to make of that when the Supreme Court has also said that juror bias is basically a structural error.

[00:11:31] Speaker 03:
It's a fundamental violation of the Constitution if even one juror is biased.

[00:11:35] Speaker 03:
So why would we hold a lesser standard in that context?

[00:11:39] Speaker 04:
Well, the issue is whether the juror was actually biased, and specifically whether the California state court's process for resolving that claim was adequate.

[00:11:51] Speaker 04:
And I believe to answer your earlier question, the... I guess I'm not understanding.

[00:11:57] Speaker 03:
So you were saying, you know, you have a more robust hearing requirement for juror tampering context than for juror bias context.

[00:12:04] Speaker 04:
Yes.

[00:12:05] Speaker 03:
And I don't understand the answer that you just gave when I'm saying, why would that be true when we take so seriously the possibility of one juror being biased?

[00:12:15] Speaker 04:
Well, Your Honor, the

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Because jury tampering, it has been considered more severe.

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And in lesser cases, I believe the applicable standard was what was set forth by this court in Hiddler v. Beneditti, where it said, a state court's decision to not hold an evidentiary hearing does not render its fact-finding process unreasonable, so long as the state court could have reasonably concluded that the evidence already adduced was sufficient to resolve the factual question.

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And so the issue here is what the state court is sufficient to resolve the factual question.

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And I would say the answer to that is yes.

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Before it, the court had juror number five's declaration in which she gave a case neutral reason for omitting the information, and it was an understandable one that she'd always wanted to serve as a juror, and she felt reasonably that if she revealed the information, she would be dismissed.

[00:13:16] Speaker 04:
But more importantly than that,

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We have her actions here.

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She showed that she evaluated the prosecution's evidence conscientiously and skeptically.

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Darcy B was a critical prosecution witness.

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She was the one that identified Bishop as the driver of the car from which the shots were fired.

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But juror number five openly questioned Darcy B's credibility and urged other jurors to reject her testimony

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arguing that she could not have seen what she said she saw.

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And then she voted to acquit Bishop on three counts.

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And she found the gang special circumstance allegation not true to him, not true as to him.

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So such actions are entirely inconsistent with a juror who is actually biased against the defendants.

[00:14:13] Speaker 04:
I would also point out that

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At the time of the new trial hearing, there really wasn't much of a dispute as to the facts.

[00:14:23] Speaker 04:
An evidentiary hearing is used to resolve factual disputes, but there really was only one statement that was disputed and for purposes of resolving the juror bias question

[00:14:35] Speaker 04:
The court found that to be true that juror number five had said that so there really wasn't a whole lot of purpose for a full-blown evidentiary hearing and I would further add that There was the state court finding by the trial judge that juror number five was credible when she said she could be fair a finding that the appellate court was required to defer to under California law and

[00:15:02] Speaker 04:
And counsel has cited a few cases that I think are inapplicable.

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One is Williams v. Taylor.

[00:15:10] Speaker 04:
In that case, the claim did not even come up in state court.

[00:15:21] Speaker 04:
Yeah, the petitioner did not even bring up the juror bias claim in state court.

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So the issue that the court was deciding was whether an evidentiary hearing

[00:15:30] Speaker 04:
was mandated under 2254E2, which is not relevant and not before this court at all, since we are operating under 2254D.

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And also, the Dyer case was mentioned, and it was acknowledged that that was a pre-AEDPA case.

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And furthermore, the holding in that case was for implied bias.

[00:16:01] Speaker 04:
But there is no clearly established federal law regarding the issue of implied bias.

[00:16:06] Speaker 04:
The Supreme Court has never explicitly adopted or rejected the doctrine of implied bias.

[00:16:14] Speaker 04:
That's what this Court has said.

[00:16:16] Speaker 04:
So Dyer is also unhelpful.

[00:16:21] Speaker 04:
So for these reasons, Your Honor, we are asking that the District Court's judgment be affirmed.

[00:16:32] Speaker 04:
Unless the Court has any questions, I'm prepared to submit.

[00:16:37] Speaker 03:
Thank you.

[00:16:38] Speaker 02:
Thank you.

[00:16:48] Speaker 02:
I just want to address quickly with respect to what opposing counsel said about Darcy B. That was an additional instance of misconduct that juror number five did.

[00:17:00] Speaker 02:
So I don't think it's reasonable to

[00:17:03] Speaker 02:
to pick additional misconduct that she did.

[00:17:05] Speaker 02:
I mean, this juror was clearly, did not respect the trial court's instructions and, you know, created, just did whatever she felt like.

[00:17:17] Speaker 02:
And with respect to the credibility determination, that was made during voir dire, or it was a statement that was made during voir dire before any of this misconduct came to light.

[00:17:27] Speaker 02:
So that was an unreasonable determination of the facts to the extent that

[00:17:30] Speaker 02:
The appellate court was relying on that as a credibility determination That's not if that were the case there would never be a need for an evidentiary hearing because at one year You know everyone answers the question.

[00:17:41] Speaker 02:
Yes, I can be impartial I just want to also bring up this there's one unpublished case guards of e Tilton two to three federal appendix six eight eight where that's on federal habeas where this court

[00:17:54] Speaker 02:
found that the California court bore responsibility for under development of the record regarding a juror who might have been dishonest on voir dire and remanded to the district court for an evidentiary hearing and after that hearing the district court found that the juror lied and granted relief based on implied bias.

[00:18:13] Speaker 02:
And I think I'm over.

[00:18:14] Speaker 02:
Thank you.

[00:18:15] Speaker 03:
All right.

[00:18:16] Speaker 03:
I thank counsel for the helpful argument.

[00:18:17] Speaker 03:
The matter of Bishop versus Robertson is submitted.