Published on: Wednesday, November 8, 2023

Someone breaks into an elderly woman's apartment and murders her. A man who confessed to the crime that night—while extremely intoxicated and possibly high on PCP—is prosecuted as the killer. The prosecution's key theory is that he used a "twisty knife" to unscrew a porch window and enter the home. Man: I was way too intoxicated to unscrew the window as described and I'm not the only person to confess to the murder. During deliberation, the jury asks for the knife and then uses it to take apart a cabinet door in the jury room. Yikes! Satisfied by this experiment they sentence the man to death. En banc Sixth Circuit: The Supreme Court has never weighed in on jury experiments specifically, so habeas relief is denied because it didn't violate “clearly” established law. Dissent: Wait, what? The Court has been extremely clear that juries can't rely on extrinsic evidence, and the cabinet the jury experimented on—which was very different from the window—was not admitted evidence. And it is a clearly established right to have a conviction and sentence be based solely on evidence in the record. This wasn't.

The case is Fields v. Jordan, No. 17-5065 (6th Cir. Nov. 3, 2023).