Godoy v. Spearman, No. 13-56024 (8-25-16)(O'Scannlain w/Bybee; dissent by Fisher). First the opening of the dissent:
"When a sitting juror is alleged to have continuously texted a judge friend about the trial and relayed the judge’s information to the jury, the majority concludes the trial court need not investigate further – and the jury verdict would not violate due process. I disagree"
Having set the stage, we go back to the majority, which holds that under AEDPA deference, the state court was not unreasonable in denying a hearing or in characterizing the texts, allegedly between juror and her "judge friend," as merely procedural (what comes next in the trial) rather than substantive. A juror's substantive communication would require reversal, or at least a hearing on the issue; these texts were taken to be mere what happens next in the murder trial. Oh yes, the majority also believes that the 9th's recent Tarango decision, which creates a presumption of prejudice, was wrongly decided, but no matter -- the state met the presumption here. The affidavits produced by defense counsel still do not make the decision unreasonable.
The dissent rightfully argues in measured tones that in failing to even have a hearing, the majority misreads precedent, invents a flexible rule, undermines protections, and erodes due process.
The decision is here: