Petitioner, who was convicted in state court of robbery,
contends in this habeas corpus proceeding that he was denied a fair
trial because jurors had learned from news accounts of prior felony
convictions or certain facts about the robbery charge. In the
course of jury selection 78 members of the panel were questioned,
70 being excused (30 for personal reasons, 20 peremptorily, and 20
by the court as having prejudged petitioner), and eight being
selected (including two alternates). The District Court and the
Court of Appeals denied relief.
Held:
1. Juror exposure to information about a state defendant's prior
convictions or to news accounts of the crime with which he is
charged do not alone presumptively deprive the defendant of due
process.
Irvin v. Dowd, 366 U. S. 717;
Rideau v. Louisiana, 373 U. S. 723;
Estes v. Texas, 381 U. S. 532;
Sheppard v. Maxwell, 384 U. S. 333,
distinguished. Pp.
421 U. S.
797-799.
2. The
voir dire in this case indicates no such juror
hostility to petitioner as to suggest a partiality that could not
be laid aside. Though some jurors vaguely recalled the robbery and
each had some knowledge of petitioner's past crimes, none betrayed
any belief in the relevance to the robbery case of petitioner's
past, and there was no indication from the circumstances
surrounding petitioner's trial or from the number of the panel
excused for prejudgment of petitioner, of inflamed community
sentiment to counter the indicia of impartiality disclosed by the
voir dire transcript. Thus, in the totality of the
circumstances, petitioner failed to show inherent prejudice in the
trial setting or actual prejudice from the jury selection process.
Pp.
421 U. S.
799-803.
495 F.2d 553, affirmed.
MARSHALL, J., delivered the opinion of the Court, in which
DOUGLAS, STEWART, WHITE, BLACKMUN, POWELL, and REHNQUIST, JJ.,
joined. BURGER, C.J., filed an opinion concurring in the judgment,
post, p.
421 U. S. 803.
BRENNAN, J., filed a dissenting opinion,
post, p.
421 U. S.
804.
Page 421 U. S. 795
MR. JUSTICE MARSHALL delivered the opinion of the Court.
The question presented by this case is whether the petitioner
was denied a fair trial because members of the jury had learned
from news accounts about a prior felony conviction or certain facts
about the crime with which he was charged. Under the circumstances
of this case, we find that petitioner has not been denied due
process, and we therefore affirm the judgment below.
I
Petitioner was convicted in the Dade County, Fla., Criminal
Court in 1970 of breaking and entering a home, while armed, with
intent to commit robbery, and of assault with intent to commit
robbery. The charges stemmed from the January, 1968, robbery of a
Miami Beach home and petitioner's apprehension, with three others,
while fleeing from the scene.
The robbery and petitioner's arrest received extensive press
coverage because petitioner had been much in the news before. He
had first made himself notorious for his part in the 1964 theft of
the Star of India sapphire from a museum in New York. His
flamboyant lifestyle made him a continuing subject of press
interest; he was generally referred to -- at least in the media --
as "Murph the Surf."
Before the date set for petitioner's trial on the instant
charges, he was indicted on two counts of murder in
Page 421 U. S. 796
Broward County, Fla. Thereafter, the Dade County court declared
petitioner mentally incompetent to stand trial; he was committed to
a hospital, and the prosecutor
nolle prossed the robbery
indictment. In August, 1968, he was indicted by a federal grand
jury for conspiring to transport stolen securities in interstate
commerce. After petitioner was adjudged competent for trial, he was
convicted on one count of murder in Broward County (March, 1969)
and pleaded guilty to one count of the federal indictment involving
stolen securities (December, 1969). The indictment for robbery was
refiled in August, 1969, and came to trial one year later.
The events of 1968 and 1969 drew extensive press coverage. Each
new case against petitioner was considered newsworthy not only in
Dade County, but elsewhere as well. [
Footnote 1] The record in this case contains scores of
articles reporting on petitioner's trials and tribulations during
this period; many purportedly relate statements that petitioner or
his attorney made to reporters.
Jury selection in the present case began in August, 1970.
Seventy-eight jurors were questioned. Of these, 30 were excused for
miscellaneous personal reasons; 20 were excused peremptorily by the
defense or prosecution; 20 were excused by the court as having
prejudged petitioner; and the remaining eight served as the jury
and two alternates. Petitioner's motions to dismiss the chosen
jurors, on the ground that they were aware that he had previously
been convicted of either the 1964 Star of India theft or the
Broward County murder, were denied, as was his renewed motion for a
change of venue based on allegedly prejudicial pretrial
publicity.
Page 421 U. S. 797
At trial, petitioner did not testify or put in any evidence;
assertedly in protest of the selected jury, he did not
cross-examine any of the State's witnesses. He was convicted on
both counts, and, after an unsuccessful appeal, he sought habeas
corpus relief in the District Court for the Southern District of
Florida.
The District Court denied petitioner relief,
363 F.
Supp. 1224 (1973), and the Court of Appeals for the Fifth
Circuit affirmed. 495 F.2d 553 (1974). We granted certiorari, 419
U.S. 1088 (1974), in order to resolve the apparent conflict between
the decision below and that of the Third Circuit in
United
States ex rel. Doggett v. Yeager, 472 F.2d 229 (1973), over
the applicability of
Marshall v. United States,
360 U. S. 310
(1959), to state criminal proceedings.
II
The defendant in
Marshall was convicted of dispensing
certain drugs without a prescription. In the course of the trial,
seven of the jurors were exposed to various news accounts relating
that Marshall had previously been convicted of forgery, that he and
his wife had been arrested for other narcotics offenses, and that
he had for some time practiced medicine without a license. After
interviewing the jurors, however, the trial judge denied a motion
for a mistrial, relying on the jurors' assurances that they could
maintain impartiality in spite of the news articles.
Noting that the jurors had been exposed to information with a
high potential for prejudice, this Court reversed the conviction.
It did so, however, expressly "[i]n the exercise of [its]
supervisory power to formulate and apply proper standards for
enforcement of the criminal law in the federal courts," and not as
a matter of constitutional compulsion.
Id. at 313.
Page 421 U. S. 798
In the face of so clear a statement, it cannot be maintained
that
Marshall was a constitutional ruling now applicable,
through the Fourteenth Amendment, to the States. Petitioner argues,
nonetheless, that more recent decisions of this Court have applied
to state cases the principle underlying the
Marshall
decision: [
Footnote 2] that
persons who have learned from news sources of a defendant's prior
criminal record are presumed to be prejudiced. We cannot agree that
Marshall has any application beyond the federal
courts.
Petitioner relies principally upon
Irvin v. Dowd,
366 U. S. 717
(1961),
Rideau v. Louisiana, 373 U.
S. 723 (1963),
Estes v. Texas, 381 U.
S. 532 (1965), and
Sheppard v. Maxwell,
384 U. S. 333
(1966). In each of these cases, this Court overturned a state court
conviction obtained in a trial atmosphere that had been utterly
corrupted by press coverage.
In
Irvin v. Dowd, the rural community in which the
trial was held had been subjected to a barrage of inflammatory
publicity immediately prior to trial, including information on the
defendant's prior convictions, his confession to 24 burglaries and
six murders including the one for which he was tried, and his
unaccepted offer to plead guilty in order to avoid the death
sentence. As a result, eight of the 12 jurors had formed an opinion
that the defendant was guilty before the trial began; some went "so
far as to say that it would take evidence to overcome their belief"
in his guilt. 366 U.S. at
366 U. S. 728.
In these circumstances, the Court readily found actual prejudice
against the petitioner to a degree that rendered a fair trial
impossible.
Prejudice was presumed in the circumstances under which the
trials in
Rideau, Estes, and
Sheppard were
Page 421 U. S. 799
held. In those cases, the influence of the news media, either in
the community at large or in the courtroom itself, pervaded the
proceedings. In
Rideau, the defendant had "confessed" to
the murder of which he stood convicted. A 20-minute film of his
confession was broadcast three times by a television station in the
community where the crime and the trial took place. In reversing,
the Court did not examine the
voir dire for evidence of
actual prejudice because it considered the trial under review "but
a hollow formality" -- the real trial had occurred when tens of
thousands of people, in a community of 150,000, had seen and heard
the defendant admit his guilt before the cameras.
The trial in
Estes had been conducted in a circus
atmosphere, due in large part to the intrusions of the press, which
was allowed to sit within the bar of the court and to overrun it
with television equipment. Similarly,
Sheppard arose from
a trial infected not only by a background of extremely inflammatory
publicity, but also by a courthouse given over to accommodate the
public appetite for carnival. The proceedings in these cases were
entirely lacking in the solemnity and sobriety to which a defendant
is entitled in a system that subscribes to any notion of fairness
and rejects the verdict of a mob. They cannot be made to stand for
the proposition that juror exposure to information about a state
defendant's prior convictions or to news accounts of the crime with
which he is charged alone presumptively deprives the defendant of
due process. To resolve this case, we must turn, therefore, to any
indications in the totality of circumstances that petitioner's
trial was not fundamentally fair.
III
The constitutional standard of fairness requires that a
defendant have "a panel of impartial,
indifferent' jurors."
Irvin v. Dowd, 366 U.S. at 366 U. S. 722.
Qualified
Page 421 U. S. 800
jurors need not, however, be totally ignorant of the facts and
issues involved.
"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."
Id. at
366 U. S. 723.
At the same time, the juror's assurances that he is equal to this
task cannot be dispositive of the accused's rights, and it remains
open to the defendant to demonstrate "the actual existence of such
an opinion in the mind of the juror as will raise the presumption
of partiality."
Ibid.
The
voir dire in this case indicates no such hostility
to petitioner by the jurors who served in his trial as to suggest a
partiality that could not be laid aside. Some of the jurors had a
vague recollection of the robbery with which petitioner was
charged, and each had some knowledge of petitioner's past crimes,
[
Footnote 3] but none betrayed
any belief in the relevance of petitioner's past to the present
case. [
Footnote 4] Indeed, four
of the six jurors volunteered their
Page 421 U. S. 801
views of its irrelevance, and one suggested that people who have
been in trouble before are too often singled out for suspicion of
each new crime -- a predisposition that could only operate in
petitioner's favor.
In the entire
voir dire transcript furnished to us,
there is only one colloquy on which petitioner can base even a
colorable claim of partiality by a juror. In response to a leading
and hypothetical question, presupposing a two- or three-week
presentation of evidence against petitioner and his failure to put
on any defense, one juror conceded that his prior impression of
petitioner would dispose him to convict. [
Footnote 5] We cannot attach great significance
Page 421 U. S. 802
to this statement, however, in light of the leading nature of
counsel's questions and the juror's other testimony indicating that
he had no deep impression of petitioner at all.
The juror testified that he did not keep up with current events
and, in fact, had never heard of petitioner until he arrived in the
room for prospective jurors where some veniremen were discussing
him. He did not know that petitioner was "a convicted jewel thief"
even then; it was petitioner's counsel who informed him of this
fact. And he volunteered that petitioner's murder conviction, of
which he had just heard, would not be relevant to his guilt or
innocence in the present case, since "[w]e are not trying him for
murder."
Even these indicia of impartiality might be disregarded in a
case where the general atmosphere in the community or courtroom is
sufficiently inflammatory, but the circumstances surrounding
petitioner's trial are not at all of that variety. Petitioner
attempts to portray them as inflammatory by reference to the
publicity to which the community was exposed. The District Court
found. however, that the news articles concerning petitioner had
appeared almost entirely during the period between December, 1967,
and January, 1969, the latter date being seven months before the
jury in this case was selected. 363 F. Supp. at 1228. They were,
moreover, largely factual in nature.
Compare Beck v.
Washington, 369 U. S. 541
(1962),
with Sheppard v. Maxwell, supra.
The length to which the trial court must go in order
Page 421 U. S. 803
to select jurors who appear to be impartial is another factor
relevant in evaluating those jurors' assurances of impartiality. In
a community where most veniremen will admit to a disqualifying
prejudice, the reliability of the others' protestations may be
drawn into question, for it is then more probable that they are
part of a community deeply hostile to the accused, and more likely
that they may unwittingly have been influenced by it. In
Irvin
v. Dowd, for example, the Court noted that 90% of those
examined on the point were inclined to believe in the accused's
guilt, and the court had excused for this cause 268 of the 430
veniremen. In the present case, by contrast, 20 of the 78 persons
questioned were excused because they indicated an opinion as to
petitioner's guilt. [
Footnote
6] This may indeed be 20 more than would occur in the trial of
a totally obscure person, but it by no means suggests a community
with sentiment so poisoned against petitioner as to impeach the
indifference of jurors who displayed no animus of their own.
In sum, we are unable to conclude, in the circumstances
presented in this case, that petitioner did not receive a fair
trial. Petitioner has failed to show that the setting of the trial
was inherently prejudicial or that the jury selection process of
which he complains permits an inference of actual prejudice. The
judgment of the Court of Appeals must therefore be
Affirmed.
[
Footnote 1]
See, e.g., New York Times, May 9, 1968, p. 51
(surrender on murder indictment); July 3, 1968, p. 70 (held
incompetent to stand trial); Aug. 15, 1968, p. 44 (indicted in
securities case); Feb. 18, 1969, p. 31 (murder trial scheduled);
Mar. 2, 1969, p. 63 (convicted of murder).
[
Footnote 2]
This was the theory adopted by the Third Circuit in
United
States ex rel. Doggett v. Yeager, 472 F.2d 229 (1973).
[
Footnote 3]
One juror who did not know that petitioner had been previously
convicted for the theft of the Star of India sapphire, one who did
not know of the murder conviction, and one who had never heard
about the securities case were informed about them by petitioner's
counsel, who then asked whether that knowledge would not prejudice
them against petitioner. We will not readily discount the
assurances of a juror insofar as his exposure to a defendant's past
crimes comes from the defendant or counsel. We note also, and
disapprove, counsel's habitual references to his client, at
voir dire, as "Murph the Surf", rather than by his
name.
[
Footnote 4]
We must distinguish between mere familiarity with petitioner or
his past and an actual predisposition against him, just as we have
in the past distinguished largely factual publicity from that which
is invidious or inflammatory.
E.g., Beck v. Washington,
369 U. S. 541,
369 U. S. 556
(1962). To ignore these real differences in the potential for
prejudice would not advance the cause of fundamental fairness, but
only make impossible the timely prosecution of persons who are well
known in the community, whether they be notorious or merely
prominent.
[
Footnote 5]
The entire exchange appears at App. 139:
"Q. Now, when you go into that jury room and you decide upon
Murphy's guilt or innocence, you are going to take into account
that fact that he is a convicted murderer; aren't you?"
"A. Not if we are listening to the case, I wouldn't."
"Q. But you know about it?"
"A. How can you not know about it?"
"Q. Fine, thank you."
"When you go into the jury room, the fact that he is a convicted
murderer, that is going to influence your verdict; is it not?"
"A. We are not trying him for murder."
"Q. The fact that he is a convicted murderer and jewel thief,
that would influence your verdict?"
"A. I didn't know he was a convicted jewel thief."
"Q. Oh, I see."
"I am sorry I put words in your mouth."
"Now, sir, after two or three weeks of being locked up in a
downtown hotel, as the Court determines, and after hearing the
State's case, and after hearing no case on behalf of Murphy, and
hearing no testimony from Murphy saying, 'I am innocent, Mr.
[juror's name],' -- when you go into the jury room, sir, all these
facts are going to influence your verdict?"
"A. I imagine it would be."
"Q. And in fact, you are saying if Murphy didn't testify, and if
he doesn't offer evidence, 'My experience of him is such that right
now I would find him guilty.'"
"A. I believe so."
[
Footnote 6]
If persons who were excused for other reasons also exhibited a
disqualifying opinion as to guilt, petitioner has not so
claimed.
MR. CHIEF JUSTICE BURGER, concurring in the judgment.
I agree with MR. JUSTICE BRENNAN that the trial judge was
woefully remiss in failing to insulate prospective jurors from the
bizarre media coverage of this case
Page 421 U. S. 804
and in not taking steps to prevent pretrial discussion of the
case among them. Although I would not hesitate to reverse
petitioner's conviction in the exercise of our supervisory powers
were this a federal case, I agree with the Court that the
circumstances of petitioner's trial did not rise to the level of a
violation of the Due Process Clause of the Fourteenth
Amendment.
MR. JUSTICE BRENNAN, dissenting.
I dissent.
Irvin v. Dowd, 366 U.
S. 717 (1961), requires reversal of this conviction. As
in that case, petitioner here was denied a fair trial. The risk
that taint of widespread publicity regarding his criminal
background, known to all members of the jury, infected the jury's
deliberations is apparent, the trial court made no attempt to
prevent discussion of the case or petitioner's previous criminal
exploits among the prospective jurors, and one juror freely
admitted that he was predisposed to convict petitioner.
During
voir dire, petitioner's counsel had the
following colloquy with that juror:
"Q. Now, when you go into that jury room and you decide upon
Murphy's guilt or innocence, you are going to take into account
that fact that he is a convicted murderer; aren't you?"
"A. Not if we are listening to the case, I wouldn't."
"Q. But you know about it?"
"A. How can you not know about it?"
"Q. Fine, thank you."
"When you go into the jury room, the fact that he is a convicted
murderer, that is going to influence your verdict; is it not?"
"A. We are not trying him for murder."
"Q. The fact that he is a convicted murderer and jewel thief,
that would influence your verdict? "
Page 421 U. S. 805
"A. I didn't know he was a convicted jewel thief."
"Q. Oh, I see."
"I am sorry I put words in your mouth."
"Now, sir, after two or three weeks of being locked up in a
downtown hotel, as the Court determines, and after hearing the
State's case, and after hearing no case on behalf of Murphy, and
hearing no testimony from Murphy saying, 'I am innocent, Mr.
[Juror]' -- when you go into the jury room, sir, all these facts
are going to influence your verdict?"
"A. I imagine it would be."
"Q. And in fact, you are saying if Murphy didn't testify, and if
he doesn't offer evidence, 'My experience of him is such that,
right now, I would find him guilty.'"
"A. I believe so."
I cannot agree with the Court that the obvious bias of this
juror may be overlooked simply because the juror's response was
occasioned by a "leading and hypothetical question,"
ante
at
421 U. S. 801.
Indeed, the hypothetical became reality when petitioner chose not
to take the stand and offered no evidence. Thus, petitioner was
tried by a juror predisposed, because of his knowledge of
petitioner's previous crimes, to find him guilty of this one.
Others who ultimately served as jurors revealed similar
prejudice toward petitioner on
voir dire. One juror
conceded that it would be difficult, during deliberations, to put
out of his mind that petitioner was a convicted criminal. He also
admitted that he did not "hold a convicted felon in the same regard
as another person who has never been convicted of a felony," and
admitted further that he had termed petitioner a "menace."
A third juror testified that she knew from several
Page 421 U. S. 806
sources that petitioner was a convicted murderer, [
Footnote 2/1] and was aware that the
community regarded petitioner as a criminal who "should be put
away." She disclaimed having a fixed opinion about the result she
would reach, but acknowledged that the fact that petitioner was a
convicted criminal would probably influence her verdict:
"Q. Now, if you go into that jury room and deliberate with your
fellow jurors, in your deliberations, will you consider the fact
that Murphy is a convicted murderer and jewel thief?"
"A. Well, he has been convicted of murder. So, I guess that is
what I would -- "
"Q. You would consider that, in your verdict, right?"
"A. Right."
"Q. And that would influence your verdict; would it not?"
"A. If that is what you say, I guess it would."
"Q. I am not concerned about what I say, because if I said it,
they wouldn't print it. It would influence your verdict?"
"A. It probably would."
"Q. When you go into that jury room, you cannot forget the fact
that it is Murph the Surf; that he is a convicted murderer, and a
jewel thief -- you can't put that out of your mind, no matter what
they tell you; can you, ma'am? "
Page 421 U. S. 807
"A. Probably not."
"Q. And it would influence your verdict; right?"
"A. Probably."
Still another juror testified that the comments of venire
members in discussing the case had made him "sick to [his]
stomach." He testified that one venireman had said that petitioner
was "thoroughly rotten," and that another had said: "Hang him, he's
guilty." [
Footnote 2/2]
Moreover, the Court ignores the crucial significance of the fact
that at no time before or during this daily buildup of prejudice
against Murphy did the trial judge instruct the prospective jurors
not to discuss the case among themselves. Indeed, the trial judge
took no steps to insulate the jurors from media coverage of the
case or from the many news articles that discussed petitioner's
last criminal exploits.
It is of no moment that several jurors ultimately testified that
they would try to exclude from their deliberations their knowledge
of petitioner's past misdeeds and of his community reputation.
Irvin held in like circumstances that little weight could
be attached to such self-serving protestations:
"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.'"
366 U.S. at
366 U. S.
728.
On the record of this
voir dire, therefore, the
conclusion is to me inescapable that the attitude of the entire
venire toward Murphy reflected the "then current community pattern
of thought as indicated by the popular news media,"
id. at
366 U. S. 725,
and was infected with the taint of the view that he was a
"criminal" guilty of notorious offenses, including that for which
he was on trial. It is a plain case, from a review of the entire
voir dire, where
"the extent and nature of the publicity has caused such a build
up of prejudice that excluding the preconception of guilt from the
deliberations would be too difficult for the jury to be honestly
found impartial."
United States ex rel. Bloeth v. Denno, 313 F.2d 364,
372 (CA2 1963). In my view, the denial of a change of venue was
therefore prejudicial error, and I would reverse the
conviction.
[
Footnote 2/1]
The juror stated that she acquired a portion of her knowledge of
petitioner's criminal background from an article in that week's
Miami Herald entitled "Defense Exhausts Jury Challenges in Murphy
Trial," which included the sentence:
"Jury selection will continue today in the trial of beach boy
hoodlum serving a life sentence for murder in connection with the
Whisky Creek slaying of two secretaries in 1968."
[
Footnote 2/2]
A juror chosen as an alternate testified that she did not know
whether she "would give the same fair and impartial treatment to a
convicted killer as [she] would to another person." She added that
she did not know whether she could be fair and impartial in her
deliberations in the case:
"Q. The question is, would you compromise your verdict; could
you go there -- and say the State proved his guilt and the defense
proved that he was insane, but, 'I'm not going to let that guy walk
the streets, so I'm going to find him guilty, period?'"
"Would you do that?"
"A. I don't know at this point."
"Q. Right."
"So in fact, ma'am, at this point, you cannot tell us whether
you can give a fair and impartial deliberation about Murphy, number
one, because of the lack of evidence, and number two, because of
what you know about Murphy; isn't that a fact?"
"A. Yes."