495 U.S. 911 (1990)

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U.S. Supreme Court

SWINDLER v. LOCKHART , 495 U.S. 911 (1990)

495 U.S. 911

John Edward SWINDLER, petitioner,
A.L. LOCKHART, Director, Arkansas Department of Correction. No. 89-6679.

Supreme Court of the United States

April 23, 1990

Petition for writ of certiorari to the United States Court of Appeals for the Eighth Circuit.


Justice MARSHALL, with whom Justice BRENNAN joins, dissenting.

A defendant's interest in a fundamentally fair trial outweighs the State's interest in trying the defendant in a particular venue. See, e.g., Lee v. Georgia, 488 U.S. 879 (1988) ( MARSHALL, J., dissenting from denial of certiorari). Accordingly, state laws that restrict a court's ability to protect a defendant from the possibility of juror exposure to prejudicial publicity unconstitutionally infringe on a defendant's right to a fair and impartial jury. Relying in part on its interpretation of Arkansas law, see Ark.Code Ann. 16-88-207 ( 1987) ("In no case shall a second removal of the same cause be allowed"), the trial court in this capital case refused to allow petitioner a second change of venue. I would grant the petition for certiorari to provide much needed guidance regarding the minimal due process requirements for state change of venue rules. When, as here, a State frames its venue rule in absolute terms and fails to permit the trial court to consider a particular defendant's right to a jury free from preconceptions regarding his guilt, such a rule violates due process. See Sheppard v. Maxwell, 384 U.S. 333, 352, 1516 (1966) (" 'It is true that in most cases involving claims of due process deprivations we require a showing of identifiable prejudice to the accused. Nevertheless, at times a

Page 495 U.S. 911 , 912

procedure employed by the State involves such a probability that prejudice will result that it is deemed inherently lacking in due process' ") ( quoting Estes v. Texas, 381 U.S. 532, 542-543, 1632-1633 (1965)). Even if I did not believe that this case merited plenary review, I would grant the petition for writ of certiorari and vacate the death penalty, because I continue to believe that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U.S. 153, 231- 241, 2973-2977 (1976) (MARSHALL, J., dissenting).

Petitioner was convicted of murdering a police officer and sentenced to death. His conviction was reversed by the Arkansas Supreme Court because of the trial court's failure to grant a change of venue from Sebastian County, where the killing occurred. Swindler v. State, 264 Ark. 107, 113, 569 S.W.2d 120, 123 (1978). Petitioner was thereafter retried in Scott County, a small rural county adjacent to Sebastian. Waldron, the seat of Scott County, is only 45 miles south of Fort Smith, the location of both the crime and the first trial.

During voir dire, a majority of the 120 venirepersons indicated that they were aware that petitioner had previously been found guilty of the crime and that he was wanted in another State for allegedly murdering two teenagers. More importantly, an overwhelming majority of the venire-98 out of 120-either tentatively or firmly believed that petitioner was guilty. The strong local feelings regarding petitioner's guilt are reflected in the comments of venireperson Thomas Bricksey:

    "Q. [H]ave you discussed this case with anybody?
    "A. Oh, yes, sir.
    "Q. All right, and have these people expressed an opinion to you about this case?
    "A. Yes, sir.
    "Q. Could you tell me what those opinions were? Did they think the defendant was guilty?
    "A. I am afraid it was almost unanimous.
    "Q. Did you ever hear anybody state that they thought he was not guilty?
    "A. No sir." Tr. 1299.

Similar prejudicial attitudes surfaced in the voir dire of three other jurors whom petitioner challenged for cause but who, unlike [495 U.S. 911 , 913]

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