Petitioner was tried in an Indiana State Court, convicted of
murder, and sentenced to death. Six murders had been committed in
the vicinity of Evansville, Ind., and they were extensively covered
by news media in the locality, which aroused great excitement and
indignation throughout Vanderburgh County, where Evansville is
located, and adjoining Gibson County. Shortly after petitioner was
arrested, the Prosecutor of Vanderburgh County and Evansville
police officials issued press releases, which were intensively
publicized, stating that petitioner had confessed to the six
murders. When petitioner was indicted in Vanderburgh County,
counsel appointed to defend him immediately sought a change of
venue, which was granted, but to adjoining Gibson County. Alleging
that the widespread and inflammatory publicity had also highly
prejudiced the inhabitants of Gibson County against petitioner, his
counsel sought a change of venue from that County to a county
sufficiently removed from the Evansville locality to permit an
unprejudiced and fair trial; but this was denied. At the trial, the
jury panel consisted of 430 persons; 268 of these were excused for
cause as having fixed opinions as to the guilt of petitioner, and 8
of the 12 who finally served on the jury admitted that they thought
petitioner was guilty, but each indicated that, notwithstanding his
opinion, he could render an impartial verdict. After petitioner's
conviction had been sustained by the State Supreme Court, he
applied to a Federal District Court for a writ of habeas corpus,
which was denied.
Held: Petitioner was not accorded a fair and impartial
trial, to which he was entitled under the Due Process Clause of the
Fourteenth Amendment; his conviction is void; the judgment denying
habeas corpus is vacated, and the case is remanded to the District
Court for further proceedings affording the State a reasonable time
to retry petitioner. Pp.
366 U. S.
718-729.
(a) Since the State Supreme Court has held that, where an
attempt has been made to secure an impartial jury by a change in
venue, but it appears that such a jury could not be obtained in
the
Page 366 U. S. 718
county to which the venue was changed, it is the duty of the
court to grant a second change of venue in order to afford the
accused a trial by an impartial jury, a state statute purporting to
permit only one change of venue is not, on its face, subject to
attack on due process grounds. Pp.
366 U. S.
720-721.
(b) Failure of a State to accord a fair hearing to one accused
of a crime violates the Due Process Clause of the Fourteenth
Amendment, and a trial by jury is not fair unless the jury is
impartial. Pp.
366 U. S.
721-722.
(c) In the circumstances of this case, it was the duty of the
Federal Court of Appeals to evaluate independently the
voir
dire testimony of the impaneled jurors. Pp.
366 U. S.
722-723.
(d) On the record in this case, it cannot be said that
petitioner was accorded a fair trial by an impartial jury. Pp.
366 U. S.
723-728.
(e) Petitioner is entitled to be freed from detention and
sentence of death pursuant to the void judgment; but he is still
subject to custody under the indictment; he may be retried under
this or another indictment, and the District Court should allow the
State a reasonable time in which to retry him. Pp.
366 U. S.
728-729.
271 F.2d 552, judgment vacated and cause remanded.
MR. JUSTICE CLARK delivered the opinion of the Court.
This is a habeas corpus proceeding, brought to test the validity
of petitioner's conviction of murder and sentence of death in the
Circuit Court of Gibson County, Indiana. The Indiana Supreme Court
affirmed the conviction in
Irvin v. State, 236 Ind. 384,
139 N.E.2d
898, and we denied direct review by certiorari "without
prejudice to filing for federal habeas corpus after exhausting
state remedies." 353 U.S. 948. Petitioner immediately
Page 366 U. S. 719
sought a writ of habeas corpus, under 28 U.S.C. § 2241,
[
Footnote 1] in the District
Court for the Northern District of Indiana claiming that his
conviction had been obtained in violation of the Fourteenth
Amendment in that he did not receive a fair trial. That court
dismissed the proceeding on the ground that petitioner had failed
to exhaust his state remedies.
153 F.
Supp. 531. On appeal, the Court of Appeals for the Seventh
Circuit affirmed the dismissal. 251 F.2d 548. We granted
certiorari, 356 U.S. 948, and remanded to the Court of Appeals for
decision on the merits or remand to the District Court for
reconsideration.
359 U. S. 394. The
Court of Appeals retained jurisdiction, and decided the claim
adversely to petitioner. 271 F.2d 552. We granted certiorari, 361
U.S. 959.
As stated in the former opinion, 359 U.S. at
359 U. S.
396-397:
"The constitutional claim arises in this way. Six murders were
committed in the vicinity of Evansville, Indiana, two in December,
1954, and four in March, 1955. The crimes, extensively covered by
news media in the locality, aroused great excitement and
indignation throughout Vanderburgh County, where Evansville is
located, and adjoining Gibson County, a rural county of
approximately 30,000 inhabitants. The petitioner was arrested on
April 8, 1955. Shortly thereafter, the Prosecutor of Vanderburgh
County and Evansville police officials issued press releases
Page 366 U. S. 720
which were intensively publicized, stating that the petitioner
had confessed to the six murders. The Vanderburgh County Grand Jury
soon indicted the petitioner for the murder which resulted in his
conviction. This was the murder of Whitney Wesley Kerr allegedly
committed in Vanderburgh County on December 23, 1954. Counsel
appointed to defend petitioner immediately sought a change of venue
from Vanderburgh County, which was granted, but to adjoining Gibson
County. Alleging that the widespread and inflammatory publicity had
also highly prejudiced the inhabitants of Gibson County against the
petitioner, counsel, on October 29, 1955, sought another change of
venue, from Gibson County to a county sufficiently removed from the
Evansville locality that a fair trial would not be prejudiced. The
motion was denied, apparently because the pertinent Indiana statute
allows only a single change of venue."
During the course of the
voir dire examination, which
lasted some four weeks, petitioner filed two more motions for a
change of venue and eight motions for continuances. All were
denied.
At the outset, we are met with the Indiana statute providing
that only one change of venue shall be granted "from the county"
wherein the offense was committed. [
Footnote 2] Since petitioner had already been afforded one
change of venue, and had been denied further changes solely on the
basis of the statute, he attacked its constitutionality. The
Page 366 U. S. 721
Court of Appeals upheld its validity. However, in the light of
Gannon v. Porter Circuit Court, 239 Ind. 637,
159 N.E.2d
713, we do not believe that argument poses a serious problem.
There, the Indiana Supreme Court held that, if it was
"made to appear after attempt has actually been made to secure
an impartial jury that such jury could not be obtained in the
county of present venue . . . , it becomes the duty of the
judiciary to provide to every accused a public trial by an
impartial jury, even though, to do so, the court must grant a
second change of venue, and thus contravene [the statute]. . .
."
239 Ind. at 642, 159 N.E.2d at 715. The prosecution attempts to
distinguish that case on the ground that the District Attorney
there conceded that a fair trial could not be had in La Porte
County, and that the court, therefore, properly ordered a second
change of venue despite the language of the statute. Inasmuch as
the statute says nothing of concessions, we do not believe that the
Indiana Supreme Court conditions the duty of the judiciary to
transfer a case to another county solely upon the representation by
the prosecutor -- regardless of the trial court's own estimate of
local conditions -- that an impartial jury may not be impaneled. As
we read
Gannon, it stands for the proposition that the
necessity for transfer will depend upon the totality of the
surrounding facts. Under this construction, the statute is not, on
its face, subject to attack on due process grounds.
England, from whom the Western World has largely taken its
concepts of individual liberty and of the dignity and worth of
every man, has bequeathed to us safeguards for their preservation,
the most priceless of which is that of trial by jury. This right
has become as much American as it was once the most English.
Although this Court has said that the Fourteenth Amendment does not
demand the use of jury trials in a State's criminal procedure,
Fay v. New York, 332 U. S. 261;
Palko v. Connecticut, 302 U. S. 319,
every State has constitutionally provided trial by
Page 366 U. S. 722
jury.
See Columbia University Legislative Drafting
Research Fund, Index Digest of State Constitutions, 578-579 (1959).
In essence, the right to jury trial guarantees to the criminally
accused a fair trial by a panel of impartial, "indifferent" jurors.
The failure to accord an accused a fair hearing violates even the
minimal standards of due process.
In re Oliver,
333 U. S. 257;
Tumey v. Ohio, 273 U. S. 510. "A
fair trial in a fair tribunal is a basic requirement of due
process."
In re Murchison, 349 U.
S. 133,
349 U. S. 136.
In the ultimate analysis, only the jury can strip a man of his
liberty or his life. In the language of Lord Coke, a juror must be
as "indifferent as he stands unsworne." Co.Litt. 155b. His verdict
must be based upon the evidence developed at the trial.
Cf.
Thompson v. City of Louisville, 362 U.
S. 199. This is true regardless of the heinousness of
the crime charged, the apparent guilt of the offender, or the
station in life which he occupies. It was so written into our law
as early as 1807 by Chief Justice Marshall in 1 Burr's Trial 416
(1807). [
Footnote 3] "The
theory of the law is that a juror who has formed an opinion cannot
be impartial."
Reynolds v. United States, 98 U. S.
145,
98 U. S.
155.
It is not required, however, that the jurors be totally ignorant
of the facts and issues involved. In these days of swift,
widespread and diverse methods of communication, an important case
can be expected to arouse the interest of the public in the
vicinity, and scarcely any of those best qualified to serve as
jurors will not have formed some impression or opinion as to the
merits of the case.
Page 366 U. S. 723
This is particularly true in criminal cases. To hold that the
mere existence of any preconceived notion as to the guilt or
innocence of an accused, without more, is sufficient to rebut the
presumption of a prospective juror's impartiality would be to
establish an impossible standard. It is sufficient if the juror can
lay aside his impression or opinion and render a verdict based on
the evidence presented in court.
Spies v. Illinois,
123 U. S. 131;
Holt v. United States, 218 U. S. 245;
Reynolds v. United States, supra.
The adoption of such a rule, however,
"cannot foreclose inquiry as to whether, in a given case, the
application of that rule works a deprivation of the prisoner's life
or liberty without due process of law."
Lisenba v. California, 314 U.
S. 219,
314 U. S. 236.
As stated in
Reynolds, the test is
"whether the nature and strength of the opinion formed are such
as in law necessarily . . . raise the presumption of partiality.
The question thus presented is one of mixed law and fact. . .
."
At p.
98 U. S.
156.
"The affirmative of the issue is upon the challenger. Unless he
shows the actual existence of such an opinion in the mind of the
juror as will raise the presumption of partiality, the juror need
not necessarily be set aside. . . . If a positive and decided
opinion had been formed, he would have been incompetent even though
it had not been expressed."
At p.
98 U. S. 157.
As was stated in
Brown v. Allen, 344 U.
S. 443,
344 U. S. 507,
the
"so-called mixed questions or the application of constitutional
principles to the facts as found leave the duty of adjudication
with the federal judge."
It was, therefore, the duty of the Court of Appeals to
independently evaluate the
voir dire testimony of the
impaneled jurors.
The rule was established in
Reynolds that
"[t]he finding of the trial court upon that issue [the force of
a prospective juror's opinion] ought not be set aside by a
reviewing court unless the error is manifest."
98 U.S. at
Page 366 U. S. 724
98 U. S. 156.
In later cases this Court revisited
Reynolds, citing it in
each instance for the proposition that findings of impartiality
should be set aside only where prejudice is "manifest."
Holt v.
United States, supra; Spies v. Illinois, supra; Hopt v. Utah,
120 U. S. 430.
Indiana agrees that a trial by jurors having a fixed, preconceived
opinion of the accused's guilt would be a denial of due process,
but points out that the
voir dire examination discloses
that each juror qualified under the applicable Indiana statute.
[
Footnote 4] It is true that
the presiding judge personally examined those members of the jury
panel whom petitioner, having no more peremptory challenges,
insisted should be excused for cause, and that each indicated that,
notwithstanding his opinion, he could render an impartial verdict.
But, as Chief Justice Hughes observed in
United States v.
Wood, 299 U. S. 123,
299 U. S.
145-146:
"Impartiality is not a technical conception. It is a state of
mind. For the ascertainment of this mental attitude of appropriate
indifference, the Constitution lays down no particular tests
and
Page 366 U. S. 725
procedure is not chained to any ancient and artificial
formula."
Here, the build-up of prejudice is clear and convincing. An
examination of the then-current community pattern of thought as
indicated by the popular news media is singularly revealing. For
example, petitioner's first motion for a change of venue from
Gibson County alleged that the awaited trial of petitioner had
become the
cause celebre of this small community -- so
much so that curbstone opinions, not only as to petitioner's guilt
but even as to what punishment he should receive, were solicited
and recorded on the public streets by a roving reporter, and later
were broadcast over the local stations. A reading of the 46
exhibits which petitioner attached to his motion indicates that a
barrage of newspaper headlines, articles, cartoons and pictures was
unleashed against him during the six or seven months preceding his
trial. The motion further alleged that the newspapers in which the
stories appeared were delivered regularly to approximately 95% of
the dwellings in Gibson County, and that, in addition, the
Evansville radio and TV stations, which likewise blanketed that
county, also carried extensive newscasts covering the same
incidents. These stories revealed the details of his background,
including a reference to crimes committed when a juvenile, his
convictions for arson almost 20 years previously, for burglary, and
by a court-martial on AWOL charges during the war. He was accused
of being a parole violator. The headlines announced his police
line-up identification, that he faced a lie detector test, had been
placed at the scene of the crime, and that the six murders were
solved, but petitioner refused to confess. Finally, they announced
his confession to the six murders and the fact of his indictment
for four of them in Indiana. They reported petitioner's offer to
plead guilty if promised a
Page 366 U. S. 726
99-year sentence, but also the determination, on the other hand,
of the prosecutor to secure the death penalty, and that petitioner
had confessed to 24 burglaries (the
modus operandi of
these robberies was compared to that of the murders and the
similarity noted). One story dramatically relayed the promise of a
sheriff to devote his life to securing petitioner's execution by
the State of Kentucky, where petitioner is alleged to have
committed one of the six murders, if Indiana failed to do so.
Another characterized petitioner as remorseless and without
conscience, but also as having been found sane by a court-appointed
panel of doctors. In many of the stories, petitioner was described
as the "confessed slayer of six," a parole violator and fraudulent
check artist. Petitioner's court-appointed counsel was quoted as
having received "much criticism over being Irvin's counsel," and it
was pointed out, by way of excusing the attorney, that he would be
subject to disbarment should he refuse to represent Irvin. On the
day before the trial, the newspapers carried the story that Irvin
had orally admitted the murder of Kerr (the victim in this case),
as well as
"the robbery-murder of Mrs. Mary Holland; the murder of Mrs.
Wilhelmina Sailer in Posey County, and the slaughter of three
members of the Duncan family in Henderson County, Ky."
It cannot be gainsaid that the force of this continued adverse
publicity caused a sustained excitement and fostered a strong
prejudice among the people of Gibson County. In fact, on the second
day devoted to the selection of the jury, the newspapers reported
that "strong feelings, often bitter and angry, rumbled to the
surface," and that
"the extent to which the multiple murders -- three in one family
-- have aroused feelings throughout the area was emphasized Friday
when 27 of the 35 prospective jurors questioned were excused for
holding biased pretrial opinions. . . ."
A few days later, the feeling was
Page 366 U. S. 727
described as "a pattern of deep and bitter prejudice against the
former pipefitter." Spectator comments, as printed by the
newspapers, were "my mind is made up"; "I think he is guilty", and
"he should be hanged."
Finally, and with remarkable understatement, the headlines
reported that "impartial jurors are hard to find." The panel
consisted of 430 persons. The court itself excused 268 of those on
challenges for cause as having fixed opinions as to the guilt of
petitioner; 103 were excused because of conscientious objection to
the imposition of the death penalty; 20, the maximum allowed, were
peremptorily challenged by petitioner, and 10 by the State; 12
persons and two alternates were selected as jurors, and the rest
were excused on personal grounds,
e.g., deafness, doctor's
orders, etc. An examination of the 2,783-page
voir dire
record shows that 370 prospective jurors, or almost 90% of those
examined on the point (10 members of the panel were never asked
whether or not they had any opinion) entertained some opinion as to
guilt -- ranging in intensity from mere suspicion to absolute
certainty. A number admitted that, if they were in the accused's
place in the dock and he in theirs on the jury with their opinions,
they would not want him on a jury.
Here, the "pattern of deep and bitter prejudice" shown to be
present throughout the community,
cf. Stroble v.
California, 343 U. S. 181, was
clearly reflected in the sum total of the
voir dire
examination of a majority of the jurors finally placed in the jury
box. Eight out of the 12 thought petitioner was guilty. With such
an opinion permeating their minds, it would be difficult to say
that each could exclude this preconception of guilt from his
deliberations. The influence that lurks in an opinion once formed
is so persistent that it unconsciously fights detachment from the
mental processes of the average man.
See Delaney v. United
States, 199 F.2d 107. Where one's life is at stake -- and
accounting for the frailties
Page 366 U. S. 728
of human nature -- we can only say that, in the light of the
circumstances here, the finding of impartiality does not meet
constitutional standards. Two-thirds of the jurors had an opinion
that petitioner was guilty, and were familiar with the material
facts and circumstances involved, including the fact that other
murders were attributed to him, some going so far as to say that it
would take evidence to overcome their belief. One said that he
"could not . . . give the defendant the benefit of the doubt that
he is innocent." Another stated that he had a "somewhat" certain
fixed opinion as to petitioner's guilt. No doubt, each juror was
sincere when he said that he would be fair and impartial to
petitioner, but the psychological impact requiring such a
declaration before one's fellows is often its father. Where so
many, so many times, admitted prejudice, such a statement of
impartiality can be given little weight. As one of the jurors put
it, "You can't forget what you hear and see." With his life at
stake, it is not requiring too much that petitioner be tried in an
atmosphere undisturbed by so huge a wave of public passion and by a
jury other than one in which two-thirds of the members admit,
before hearing any testimony, to possessing a belief in his guilt.
Stroble v. California, 343 U. S. 181;
Shepherd v. Florida, 341 U. S. 50
(concurring opinion);
Moore v. Dempsey, 261 U. S.
86.
Petitioner's detention and sentence of death pursuant to the
void judgment is in violation of the Constitution of the United
States, and he is therefore entitled to be freed therefrom. The
judgments of the Court of Appeals and the District Court are
vacated, and the case remanded to the latter. However, petitioner
is still subject to custody under the indictment filed by the State
of Indiana in the Circuit Court of Gibson County charging him with
murder in the first degree, and may be tried on this or another
indictment. The District Court has power, in a habeas corpus
proceeding, to "dispose of the
Page 366 U. S. 729
matter as law and justice require." 28 U.S.C. § 2243. Under the
predecessors of this section,
"this Court has often delayed the discharge of the petitioner
for such reasonable time as may be necessary to have him taken
before the court where the judgment was rendered, that defects
which render discharge necessary may be corrected."
Mahler v. Eby, 264 U. S. 32,
264 U. S. 46.
Therefore, on remand, the District Court should enter such orders
as are appropriate and consistent with this opinion,
cf.
Grandsinger v. Bovey, 153 F.
Supp. 201, 240, which allow the State a reasonable time in
which to retry petitioner.
Cf. Chessman v. Teets,
354 U. S. 156;
Dowd v. Cook, 340 U. S. 206;
Tod v. Waldman, 266 U. S. 113.
Vacated and remanded.
[
Footnote 1]
Section 2241 provides in pertinent part:
"(a) Writs of habeas corpus may be granted by the . . . district
courts . . . within their respective jurisdictions. . . ."
"
* * * *"
"(c) The writ of habeas corpus shall not be extended to a
prisoner unless . . ."
"
* * * *"
"(3) He is in custody in violation of the Constitution or laws
or treaties of the United States. . . ."
[
Footnote 2]
Burns' Ind.Stat.Ann., 1956 Replacement Vol., § 9-1305, provides
in pertinent part:
"When affidavits for a change of venue are founded upon
excitement or prejudice in the county against the defendant, the
court, in all cases not punishable by death, may, in its
discretion, and in all cases punishable by death, shall grant a
change of venue to the most convenient county. . . . Provided,
however, That only one [1] change of venue from the judge and only
one [1] change from the county shall be granted."
[
Footnote 3]
"[L]ight impressions which may fairly be supposed to yield to
the testimony that may be offered, which may leave the mind open to
a fair consideration of that testimony, constitute no sufficient
objection to a juror, but that those strong and deep impressions
which will close the mind against the testimony that may be offered
in opposition to them, which will combat that testimony and resist
its force, do constitute a sufficient objection to him."
[
Footnote 4]
"Challenges for cause. -- The following shall be good causes for
challenge to any person called as a juror in any criminal
trial:"
"
* * * *"
"Second. That he has formed or expressed an opinion as to the
guilt or innocence of the defendant. But if a person called as a
juror states that he has formed or expressed an opinion as to the
guilt or innocence of the defendant, the court or the parties shall
thereupon proceed to examine such juror on oath as to the ground of
such opinion, and if it appears to have been founded upon reading
newspaper statements, communications, comments or reports, or upon
rumors or hearsay, and not upon conversation with witnesses of the
transaction, or reading reports of their testimony, or hearing them
testify, and the juror states on oath that he feels able,
notwithstanding such opinion, to render an impartial verdict upon
the law and evidence, the court, if satisfied that he is impartial
and will render such verdict, may, in its discretion, admit him as
competent to serve in such case."
Burns' Ind.Stat.Ann., 1956 Replacement Vol., § 9-1504
MR. JUSTICE FRANKFURTER, concurring.
Of course, I agree with the Court's opinion. But this is,
unfortunately, not an isolated case that happened in Evansville,
Indiana, nor an atypical miscarriage of justice due to anticipatory
trial by newspapers, instead of trial in court before a jury.
More than one student of society has expressed the view that not
the least significant test of the quality of a civilization is its
treatment of those charged with crime, particularly with offenses
which arouse the passions of a community. One of the rightful
boasts of Western civilization is that the State has the burden of
establishing guilt solely on the basis of evidence produced in
court and under circumstances assuring an accused all the
safeguards of a fair procedure. These rudimentary conditions for
determining guilt are inevitably wanting if the jury which is to
sit in judgment on a fellow human being comes to its task with its
mind ineradicably poisoned against him. How can fallible men and
women reach a disinterested verdict based exclusively on what they
heard in court when, before they entered the jury box, their
Page 366 U. S. 730
minds were saturated by press and radio for months preceding by
matter designed to establish the guilt of the accused. A conviction
so secured obviously constitutes a denial of due process of law in
its most rudimentary conception.
Not a Term passes without this Court's being importuned to
review convictions, had in States throughout the country, in which
substantial claims are made that a jury trial has been distorted
because of inflammatory newspaper accounts -- too often, as in this
case, with the prosecutor's collaboration -- exerting pressures
upon potential jurors before trial and even during the course of
trial, thereby making it extremely difficult, if not impossible, to
secure a jury capable of taking in, free of prepossessions,
evidence submitted in open court. Indeed, such extraneous
influences, in violation of the decencies guaranteed by our
Constitution, are sometimes so powerful that an accused is forced,
as a practical matter, to forego trial by jury.
See Maryland v.
Baltimore Radio Show, 338 U. S. 912,
338 U. S. 915.
For one reason or another, this Court does not undertake to review
all such envenomed state prosecutions. But, again and again, such
disregard of fundamental fairness is so flagrant that the Court is
compelled, as it was only a week ago, to reverse a conviction in
which prejudicial newspaper intrusion has poisoned the outcome.
Janko v. United States, ante, p. 716;
see, e.g.,
Marshall v. United States, 360 U. S. 310.
See also Stroble v. California, 343 U.
S. 181,
343 U. S. 198
(dissenting opinion);
Shepherd v. Florida, 341 U. S.
50 (concurring opinion). This Court has not yet decided
that the fair administration of criminal justice must be
subordinated to another safeguard of our constitutional system --
freedom of the press, properly conceived. The Court has not yet
decided that, while convictions must be reversed and miscarriages
of justice result because the minds of jurors or potential jurors
were poisoned, the poisoner is constitutionally protected in plying
his trade.