Mica Martinez is a Native American steeped in Comanche culture. Mr. Martinez's defense counsel at trial warned the prosecution of putting on a "wild card" ex-girlfriend, fearing she would try to harpoon Mr. Martinez's case. The prosecutor did so anyway and kept emphasizing an irrelevant part of the ex-girlfriend's story: the race of the two men Mr. Martinez allegedly fought. But it was fatal to any chance of a fundamentally fair sentencing hearing when the ex-girlfriend claimed that after the fight Mr. Martinez told her, "'Those two n [*] s said they were going to rape you.'" Applicable here, "[s]ome toxins can be deadly in small doses." Buck v. Davis, 580 U.S. 100, 121-22 (2017).

A mistrial should have been declared, and a new sentencing proceeding held. This is so even without knowing there were two Black jurors on the panel, one of them was "one of the holdouts," and she only came around to a death sentence after "discussions" with other jurors. No mistrial was granted, and Oklahoma treated the issue as evidentiary error "cured" by the instruction to disregard racial statements made after denial of the motion for mistrial.

The Tenth Circuit knew there were two Black people on the jury but left that out of its 28 U.S.C. § 2254(d)(1) analysis disposing of Martinez's fair trial claim. It included and emphasized the judge's futile jury instruction. These questions arise:

1) May evidence be so unduly prejudicial to "one juror" in a capital sentencing proceeding that it renders it fundamentally unfair, particularly in jurisdictions requiring juror unanimity?

2) Should courts discard the fiction a curative instruction can unring a bell when it comes to "especially pernicious" racial bias in capital sentencing?

May evidence be so unduly prejudicial to 'one juror' in a capital sentencing proceeding that it renders it fundamentally unfair, particularly in jurisdictions requiring juror unanimity?