Marcus Reymond Robinson v. MARVIN L. POLK, Warden, Central No. 05-1 Prison, Raleigh, North Carolina, …

PUBLISHED
Filed: April 7, 2006
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 MARCUS REYMOND ROBINSON,
Petitioner-Appellant,
v.
MARVIN L. POLK, Warden, Central No. 05-1
Prison, Raleigh, North Carolina,  (CA-00-127-5-F-HC)
Respondent-Appellee.
MICHAEL WILLIAM LENZ,
Amicus Supporting Appellant. 
ORDER
Appellant filed a petition for rehearing en banc, and appellee filed
a response in opposition to the petition.
A member of the Court requested a poll on the petition for rehear-
ing en banc. The poll failed to produce a majority of judges in active
service in favor of rehearing en banc. Judges Michael, Motz, King,
and Gregory voted to rehear the case en banc, and Chief Judge Wil-
kins and Judges Widener, Wilkinson, Niemeyer, Luttig, Williams,
Traxler, Shedd, and Duncan voted against rehearing en banc.
The Court denies the petition for rehearing en banc.
Judge Wilkinson wrote an opinion concurring in the denial of
rehearing en banc. Judge King wrote an opinion dissenting from the
denial of rehearing en banc.

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Entered at the direction of Judge Williams for the Court.
For the Court
/s/ Patricia S. Connor
Clerk
WILKINSON, Circuit Judge, concurring in the denial of rehearing en
banc:
I vote to deny rehearing en banc. I do so because to reverse this
case would require us both to ignore the constraints that AEDPA
places on our review of state court proceedings and to create a new
rule regarding juror Bible consultation in a capital sentencing deliber-
ation. Whatever our views might be on this difficult issue de novo,
we should not apply them retroactively.
This case divided the three-judge panel that heard it, and not sur-
prisingly — the issue of juror reliance upon the Bible during capital
sentencing deliberations is not a simple matter. It is a subject that
straddles the divide between two fundamental Sixth Amendment con-
cerns: the demand that the jury be free of prejudicial external influ-
ences, and the requirement that jurors be drawn from the community
as a whole.
The constitutional inquiry into Bible use during capital sentencing
must track these opposing interests. The constitutional line is crossed
where the Bible ceases to be used for personal sustenance and reflec-
tion, and is instead collectively relied upon to decide a capital defen-
dant’s fate. This danger is greatest when a Bible is present in the jury
room and becomes a focus of the jury’s life-or-death deliberations.
But where the Bible is present in the jury room as an article of devo-
tion for individual jurors, no constitutional line is crossed, as the law
cannot and should not probe into matters of personal conscience.
I would therefore distinguish between personal and deliberative use
of the biblical text. In my judgment, a clear instruction announcing
this line should be given when a Bible is in the jury room. Since
jurors are presumed to follow such instructions, see, e.g., Weeks v.
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Angelone, 528 U.S. 225, 234 (2000), this cautionary step should insu-
late the vast majority of verdicts and deliberations from any subse-
quent attack. Where, as here, no instruction was given, an evidentiary
hearing might be appropriate when there is reason to believe that the
Bible has been used as a deliberative aid. Because, however, the prin-
ciple that I would follow has not been clearly established in federal
law, I cannot fault state courts for failing to adhere to it, and I concur
in the order denying rehearing en banc.
I.
The Sixth Amendment jury-trial right "guarantees to the criminally
accused a fair trial by a panel of impartial, ‘indifferent’ jurors." Irvin
v. Dowd, 366 U.S. 717, 722 (1961). At its core, the right contemplates
that jurors will render their decision based on the law and the facts
presented. See Turner v. Louisiana, 379 U.S. 466, 472-73 (1965).
Courts have always recognized that jurors’ personal convictions,
including religious ones, may impede the dutiful performance of their
momentous responsibility. Jurors in capital cases can, for example, be
dismissed for cause on the basis of religious opposition to the death
penalty. See generally Wainwright v. Witt, 469 U.S. 412, 423-24
(1985). As this practice acknowledges, certain deeply held religious
beliefs may have particular resonance with the demanding moral
issues surrounding capital punishment. And the First Amendment
plainly illustrates that religion poses unique concerns within our legal
system. The Constitution does not, therefore, allow religious consid-
erations to replace legal ones.
The simple presence of a Bible in the jury room would not broach
constitutional norms. The matter is one of degree. There is a differ-
ence between a juror bringing a Bible into the jury room for personal
strength and support and the jury as a whole reading and debating the
biblical text as the basis for a life and death decision. Such a debate
is constitutionally problematic. For the Bible is not only a work of
enormous literary and historical significance. It is a sacred and
authoritative expression of the Judeo-Christian tradition and of the
Jewish and Christian faiths. Its very place as a canon of scriptural
authority is so powerful that it threatens to supplant the individualized
sentencing inquiry into the nature and consequences of the crime and
the particular aggravating and mitigating circumstances brought for-
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ward in the evidence. It thus bespeaks no disrespect of divinely
inspired teaching to say that a jury’s capital sentencing determination
must rest in the end on the requirements of law. If the presence of a
Bible in the jury room drives the collective discussion, and renders a
capital sentence the result of religious command, then in my view, an
important line has been crossed.
The readily apparent dangers of holding otherwise reinforce the
propriety of this rule. Our country is increasingly pluralistic, not only
in terms of racial and ethnic diversity, but in religious beliefs as well.
This brings real benefits to our communities, but so too does it create
the potential for greater religious conflict. Though many of its teach-
ings are universal, the Bible nonetheless remains a sectarian text that
serves as the theological foundation for certain religions and not oth-
ers. If it could be brought into the jury room as a basis for discussion
and debate upon the ultimate punishment the state may impose, it
would be only a short while before jurors of different faiths brought
their own holy texts into the conversation. The jury room is not the
place to debate the respective merits of the Bible, the Koran, the
Torah, or any other religious scripture that Americans revere, nor is
it the proper forum for a clash between belief and non-belief. These
discussions would likely be divisive, and might range far afield from
the appropriate legal and factual inquiry. In a pluralistic America, the
jury room must remain a place of common ground firmly rooted in
law, irrespective of deeply and sincerely held religious differences.
A jury’s reliance on the Bible during capital sentencing delibera-
tions also has serious implications for the public perception of our
criminal justice system. A defendant must never suspect that he was
sentenced to death on the basis of religious dictate, especially if the
jury’s religious beliefs are not his own. Nor should the families and
friends of murder victims believe a capital verdict of whatever sort
was driven by biblical readings and discussions. Juries have legiti-
macy in a democracy because, despite the variety of jurors’ beliefs,
they are united in the common endeavor of legal judgment. Any con-
trary perception threatens the most basic premise of the rule of law.
II.
While the Bible must not become a catalyst for transforming juror
deliberations into religious debate, its mere presence in the jury room
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does not contravene constitutional values. "Our system of criminal
justice rests in large measure upon a confidence in conscientious juror
deliberations and juror attentiveness." Stockton v. Virginia, 852 F.2d
740, 744 (4th Cir. 1988). The law therefore forbids parties from dis-
rupting the sanctity and privacy of the jury by conducting post-verdict
inquiries into matters internal to jurors or their deliberations. See, e.g.,
Tanner v. United States, 483 U.S. 107, 117-18 (1987); Hyde v. United
States, 225 U.S. 347, 383-84 (1912).
A juror’s possession of a Bible in the jury room represents just
such a matter. As discussed above, collective examination of the
Bible during capital sentencing deliberations carries a genuine threat
of harm. But quite the opposite is true when the Bible is an object of
private, rather than public, contemplation. When present in the jury
room, the Bible can serve important purposes for individual jurors
that bear no relation to the imposition of divine law or the elevation
of religious over legal judgment.
Any other view is unrealistic. "We are a religious people whose
institutions presuppose a Supreme Being," Zorach v. Clauson, 343
U.S. 306, 313 (1952), and the Bible has always occupied a solemniz-
ing place in public life. It has, for example, been used since the very
birth of our nation in administering the oath of office to public offi-
cials. See Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 26-27
(2004) (Rehnquist, C.J., concurring in the judgment) (describing
George Washington swearing upon and kissing the Bible during his
first inauguration). A Bible likewise commonly accompanies court-
room oaths. See, e.g., N.C. Gen. Stat. § 11-2 (2003) ("Judges and
other persons who may be empowered to administer oaths, shall [with
certain exceptions] require the party to be sworn to lay his hand upon
the Holy Scriptures.").
Just as a trial participant may solemnize his oath with a Bible, a
juror may retain a Bible in the jury room to remind him of the impor-
tance of the duty he has sworn to perform. This is no more objection-
able than the President keeping a Bible in the Oval Office or a judge
having one in chambers. In none of these cases would it be appropri-
ate to presume that the Bible is a replacement for, rather than a
reminder of, the individual’s oath to uphold and apply the law.
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Beyond emphasizing the serious nature of jury deliberations, a
Bible can also provide a juror with the sustenance of faith at a diffi-
cult or even anguished time. For some jurors, daily Bible affirmation,
or simply having a Bible nearby, constitutes a crucial aspect of per-
sonal identity. And even someone who does not frequently consult the
Bible may desire one when faced with the heavy burden of selecting
between a lifetime of incarceration or a sentence of death. The law
need not deny the implements of faith to people when they need them
the most. For those who find refuge in its teachings, the Bible can
provide the strength to impose whatever punishment the law compels.
Our legal system would do a disservice to Americans of faith by
presupposing that the consolation they find in the Bible would affect
their impartiality as jurors. Jury service is not antithetical to religious
belief, and jurors need not check the objects of their faith at the court-
house door. We would not, for example, require removal of rosary
beads or a yarmulke or a nun’s habit as an incident of jury service.
Such accouterments bespeak devotion, not prejudgment. To ask that
jurors become fundamentally different people when they enter the
jury room is at odds with the idea that the jury be "drawn from a fair
cross section of the community," Taylor v. Louisiana, 419 U.S. 522,
527 (1975). Beyond the disservice to individual jurors, denial of
Bibles for personal sustenance risks making jury duty less palatable
to communities of faith. The Sixth Amendment does not require a rule
that would actively discourage a broad section of our population from
productive jury service.
III.
It will fall to trial courts to navigate the tensions in these cases.
Those courts need not bar all Bibles from the jury room, but they
must endeavor through instructions and voir dire to ensure that their
presence does not become a constitutionally problematic influence on
jury deliberations. When exercising its discretion to grant a juror’s
request for a Bible, a trial court should issue a clear instruction that
jurors use it only for personal sustenance and devotion, and avoid dis-
cussing it or referencing it as a source of authority for decisionmak-
ing. A similar instruction should also be given on request of counsel,
or if the court were to otherwise become informed that a juror had a
Bible in his possession.
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I am aware that court instructions can seem to some jurors to drone
on and on, but an instruction on the appropriate and inappropriate
usages of religious texts is well within the jury’s understanding and
likely to command its attention. A specific instruction of this type
would help to prevent the dictates of religion from becoming a focal
point of collective discussion and go a long way toward protecting the
integrity of the jury’s ultimate sentencing determination. It would
therefore rebut any presumption of prejudice. See Remmer v. United
States, 347 U.S. 227, 229 (1954). The meticulous use of the tradi-
tional tools involved in juror voir dire and instructions should obviate
the need for evidentiary inquiries that disrupt the lives of jurors and
that seek to fathom the dynamics and interplay that legitimately form
part of every jury verdict.
IV.
The panel majority expressly declined to address the proper resolu-
tion of this case if it were before us de novo. There is no suggestion
that an instruction of the type I have just described was given here.
While under such circumstances I would draw the constitutional line
between personal and deliberative use of the Bible, I do not think we
as judges have authority under AEDPA to fashion such a rule, much
less to accord it retroactive effect.
A state court has already determined that the jury’s use of the Bible
during these deliberations did not violate the Sixth Amendment, and
petitioner now seeks federal habeas relief. The scope of our review
is therefore circumscribed by the strictures of 28 U.S.C. § 2254
(2000). We can only overturn the state decision if it was "contrary to,
or involved an unreasonable application of, clearly established Fed-
eral law, as determined by the Supreme Court of the United States."
Id. § 2254(d)(1). The state decision is unreasonable if it "applies [the
Supreme] Court’s precedents to the facts in an objectively unreason-
able manner." Brown v. Payton, 125 S. Ct. 1432, 1439 (2005).
Applying this deferential standard, there is no fair basis to conclude
that the state decision in this case was an unreasonable application of
clearly established federal law. The Supreme Court has not had occa-
sion to consider whether the use of a Bible in jury deliberations could
create a bias of constitutional proportions. Its holdings have instead
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been limited to situations far different from that presented here. See,
e.g., Parker v. Gladden, 385 U.S. 363, 363-64 (1966) (per curiam)
(improper influence where bailiff, inter alia, told juror that defendant
was a "wicked fellow" who was guilty); Turner, 379 U.S. at 473-74
(improper influence where jury had "continuous and intimate associa-
tion" with two key government witnesses); Remmer, 347 U.S. at 228-
30 (improper influence from allegation that juror was bribed); Mattox
v. United States, 146 U.S. 140, 150-51 (1892) (improper influence
where jurors read damaging newspaper article about defendant). It
was therefore not unreasonable for the state court to conclude that
these precedents did not control the constitutional considerations sur-
rounding the presence of a Bible in the jury room during capital sen-
tencing deliberations.
My distinguished brother in dissent purports to find a clearly estab-
lished Supreme Court rule governing this situation. In this respect, he
possesses more clairvoyance than either the state courts, the district
court, or a substantial majority of this court. Whether the presence of
a Bible is an external influence upon the jury or simply a part of the
jury’s internal processes is a question the Supreme Court has not even
broached, much less settled. Whether biblical passages are common
knowledge, see Fields v. Brown, 431 F.3d 1186, 1208-09 (9th Cir.
2005), or whether they should be deemed to relate to the particular
circumstances of a case, is likewise far from clear. To crystallize a
constitutional rule from such uncertain circumstances is the very exer-
cise that AEDPA forbids. In taking a very general principle involving
"external influences" and extending it to difficult and problematic cir-
cumstances far removed from the context in which the principle has
been applied, my fine colleague erodes those constraints that AEDPA
imposes on our review.
Both AEDPA and Teague v. Lane, 489 U.S. 288 (1989), express
the sound proposition that state courts should not be penalized for
judgments that are reasonable at the time but may (or may not) at
some future point prove incorrect. It is the solemn duty of judges no
less than jurors to respect the rule of law, of which the standard of
review set by Congress is an integral component.
V.
For the foregoing reasons, I concur in the denial of rehearing en
banc.
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KING, Circuit Judge, dissenting from the denial of rehearing en banc:
The Sixth Amendment right to an impartial jury has been long rec-
ognized as "fundamental to our system of justice." Duncan v. Louisi-
ana, 391 U.S. 145, 153 (1968). Described as "inherent and
invaluable" by the First Congress of the American Colonies, and as
a "great and inestimable privilege" by the First Continental Congress,
the right to an impartial jury stands among those fundamental rights
most revered by the founding generation. Id. at 152; see also The
Declaration of Independence para. 20 (listing among the grievances
against George III that he "den[ied] us in many cases, of the benefit
of Trial by Jury."). Given their distrust of governmental power, the
veneration in which our forebears held the jury trial right is not sur-
prising, for "[t]he primary purpose of the jury in our legal system is
to stand between the accused and the powers of the State." Lewis v.
United States, 518 U.S. 322, 335 (1996) (Kennedy, J., concurring in
the judgment). A trial jury, of course, can only serve this purpose if
it is impartial. Thus, where a trial jury’s deliberations have been con-
taminated by an improper external influence that threatens its impar-
tiality, its tainted verdict must not be enforced. See Remmer v. United
States, 347 U.S. 227, 229-30 (1954).
According to Robinson’s allegations, a trial juror, during
sentencing-phase deliberations on whether he should be punished by
execution, requested and received a Bible from the court bailiff with-
out authorization by the court. The juror then read aloud to the delib-
erating jury a passage concerning the Biblical mandate of "an eye for
an eye," in an effort to persuade fellow jurors to recommend the death
sentence that Robinson ultimately received. The state court deter-
mined that these allegations failed to constitute an improper and
unconstitutional external influence under the applicable Supreme
Court precedents. As explained in my opinion dissenting from the
panel majority’s opinion, see Robinson v. Polk, 438 F.3d 350, 368-76
(4th Cir. 2006) (King, J., dissenting in part), the state court’s decision
plainly "involved an unreasonable application of[ ] clearly established
Federal law, as determined by the Supreme Court of the United
States," under the Antiterrorism and Effective Death Penalty Act of
1996 ("AEDPA"). 28 U.S.C. § 2254(d)(1). I write again to supple-
ment and emphasize the view I earlier expressed.
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In a series of decisions, the Supreme Court has recognized and held
that the contamination of a jury’s deliberations by an improper exter-
nal influence contravenes a defendant’s right to an impartial jury. See
Parker v. Gladden, 385 U.S. 363 (1966); Turner v. Louisiana, 379
U.S. 466 (1965); Remmer v. United States, 347 U.S. 227 (1954). The
external influences recognized by the Court in those decisions are fac-
tually diverse, but they share a single, constitutionally significant
characteristic: they are external to the evidence and law in the case,
and carry the potential to bias the jury against the defendant. This
legal principle unifies the bailiff’s remarks disparaging the defendant
in Parker, the relationship of confidence between the jury and key
prosecution witnesses in Turner, and the effort to bribe a juror in
Remmer. And it plainly applies to the circumstances here.
The Supreme Court has struggled for decades to structure the law
of capital sentencing so as to assure that a defendant facing a possible
death sentence receives the individualized consideration that the Con-
stitution mandates. Such individualized consideration is essential
because the Constitution does not abide death as a punishment for all
those convicted of murder; it reserves the ultimate penalty for "those
offenders who commit a narrow category of the most serious crimes
and whose extreme culpability makes them the most deserving of exe-
cution." Roper v. Simmons, 543 U.S. 551, 568 (2005) (internal quota-
tion marks omitted). In order to minimize the risk that an individual
defendant who falls outside of that "narrow category" may be sen-
tenced to death, a deliberating jury must first find the existence of at
least one precisely defined aggravating circumstance that applies only
to a subclass of defendants convicted of murder. See Tuilaepa v. Cali-
fornia, 512 U.S. 967, 971-72 (1994). If it finds the presence of such
an aggravating circumstance, the jury must then make "an individual-
ized determination on the basis of the character of the individual and
the circumstances of the crime," considering all relevant mitigating
evidence that the defendant has mustered in support of his plea for
mercy. See Zant v. Stephens, 462 U.S. 862, 879 (1983).
If Robinson’s allegations are true, one of his jurors, employing a
Bible provided by the court’s bailiff without court authorization,
exhorted his fellow jurors to supplant the capital sentencing law pre-
scribed by the Supreme Court with the divine command expressed in
the Bible’s mandate of "an eye for an eye." In effect, this juror
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requested that his fellow jurors throw the individualized consideration
required by the Constitution to the wind, for while the Constitution
requires that the death penalty be imposed through structured discre-
tion on only a narrow class of the worst murderers, the principle of
"an eye for an eye" licenses death as a punishment for any murder,
a position rejected by the Supreme Court as contrary to the Constitu-
tion. See Woodson v. North Carolina, 428 U.S. 280, 303 (1976)
(opinion of Stewart, Powell, and Stevens, JJ.). Simply put, the trial
juror, by appealing to a text introduced into the jury room without
court authorization, sought to persuade the jury to decide Robinson’s
fate by reference to a dictate that is contrary to what our Constitution
mandates, and that derives from what many consider to be a divinely
inspired source of law.
My good friend Judge Wilkinson has written — with characteristic
eloquence — in support of the denial of en banc consideration here,
and he suggests that the state-court determination at issue was not
unreasonable because the Supreme Court has not specifically consid-
ered "whether the use of a Bible in jury deliberations could create a
bias of constitutional proportions." Ante at 7. The scope of our review
for unreasonableness under AEDPA, however, is defined not simply
by the factual similarity between the relevant Court precedents and
the case on review, but by whether the legal principle embodied in
those precedents reasonably must control in the factual context of the
case on review. See Williams (Terry) v. Taylor, 529 U.S. 362, 407
(2000) (observing that a state court decision involves an unreasonable
application of Supreme Court precedent when it "unreasonably
refuses to extend [a legal] principle to a new context where it should
apply"). A legal principle, by definition, applies to diverse factual sce-
narios. And those factual scenarios can differ in innumerable ways,
so long as they are analogous on the point to which the legal principle
applies. See Wiggins v. Smith, 539 U.S. 510, 520 (2003) (observing
that "a federal court may grant relief when a state court has misap-
plied a governing legal principle to a set of facts different from those
of the case in which the principle was announced" (internal quotation
marks omitted)).*
*Indeed, to require strict factual parity under the "unreasonable appli-
cation" clause of § 2254(d)(1) would conflate the "unreasonable applica-
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In these circumstances, the governing legal principle — the prohi-
bition against improper external influences on a jury’s deliberations
— applies to any set of facts that shares a common characteristic: an
intrusion on the jury’s deliberations that is external to the evidence
and law in the case, and that carries the potential to bias the jury
against the defendant. That single principle unites the divergent facts
in Parker, Turner, and Remmer. And it was plainly unreasonable for
the North Carolina state court to decline to apply it here, where a trial
juror received an unauthorized text from the court bailiff and invoked
from it what many consider to be divine commands, in order to con-
vince his fellow jurors to apply a principle that is not only inconsis-
tent with the law the jury was charged to apply, but that the Supreme
Court has deemed unconstitutional.
If the Supreme Court principle prohibiting an external influence on
a jury’s deliberations does not apply in this case, it is difficult to
imagine any state habeas corpus proceeding, absent one with facts
identical to the pertinent Court cases, in which the principle would
apply. While I entirely agree that our review under AEDPA must be
deferential, to read and apply AEDPA’s provisions so narrowly is
essentially to abdicate our responsibility to utilize the Great Writ
when a state court has unreasonably applied clearly established fed-
eral law as determined by the Supreme Court.
I dissent from the denial of rehearing en banc.
tion" clause with the "contrary to" clause. See Williams, 529 U.S. at 406
(observing that state-court decision is contrary to Supreme Court prece-
dent "if the state court confronts a set of facts that are materially indistin-
guishable from a decision of th[e] Court and nevertheless arrives at a
result different from [Supreme Court] precedent"). Such a requirement
would read the "unreasonable application" clause out of § 2254 and
would be inconsistent with the Court’s admonition that the two clauses
must be accorded "independent meaning." Id. at 405.
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