After a jury trial in a Pennsylvania state court in 1966,
respondent was convicted of first-degree murder and rape, and was
sentenced to life imprisonment. However, on direct appeal, the
Pennsylvania Supreme Court held that the police had violated
respondent's constitutional rights in securing confessions that had
been admitted in evidence, and remanded the case for a new trial.
Before and during an extensive
voir dire examination of
potential jurors at the second trial in 1970, respondent moved for
a change of venue, arguing that publicity concerning the case had
resulted in dissemination of prejudicial information that could not
be eradicated from the potential jurors' minds. The trial court
denied the motions, and respondent was convicted again of
first-degree murder. He was resentenced to life imprisonment, and
the trial court denied a motion for a new trial, finding that
practically no publicity had been given to the case between the two
trials, that little public interest was shown during the second
trial, and that the jury was without bias. The Pennsylvania Supreme
Court affirmed the conviction and the trial court's findings.
Respondent then sought habeas corpus relief in Federal District
Court, claiming that his conviction had been obtained in violation
of his right under the Sixth and Fourteenth Amendments to a fair
trial by an impartial jury. Upholding the state trial court's view
that the jury was impartial, the District Court denied relief, but
the Court of Appeals reversed. Relying primarily on
Irvin v.
Dowd, 366 U. S. 717, the
court found that pretrial publicity had made a fair trial
impossible in the county.
Held:
1. The
voir dire testimony and the record of publicity
do not reveal the kind of "wave of public passion" that would have
made a fair trial unlikely by the empaneled jury as a whole.
Although
Irvin v. Dowd, supra, held that adverse publicity
can create such a presumption of prejudice in a community that the
jurors' claims that they can be impartial should not be believed,
it also recognized that the trial court's findings of impartiality
may be overturned only for "manifest error." In this case, the
extensive adverse publicity and the community's sense of outrage
were at their height prior to respondent's first trial. The record
shows that prejudicial publicity was greatly diminished and
community sentiment
Page 467 U. S. 1026
ment had softened when the jury for the second trial was
selected four years later. Thus the trial court did not commit
manifest error in finding that the jury as a whole was impartial.
Potential jurors who had retained fixed opinions as to respondent's
guilt were disqualified, and the fact that the great majority of
veniremen "remembered the case," without more, is essentially
irrelevant. The relevant question is whether the jurors at
respondent's second trial had such fixed opinions that they could
not judge impartially respondent's guilt. The passage of time
between the first and second trials clearly rebutted any
presumption of partiality or prejudice that existed at the time of
the initial trial. Pp.
467 U. S.
1031-1035.
2. There is no merit in respondent's argument that one of the
selected jurors, as well as the two alternates, had been
erroneously seated over his challenges for cause. The ambiguity in
the testimony of the cited jurors was insufficient to overcome the
presumption of correctness, under 28 U.S.C. § 2254(d), owed to the
trial court's findings. The question of an individual juror's
partiality is plainly one of historical fact, and there is fair
support in the record for the state courts' conclusion that the
jurors here would be impartial. Pp.
467 U. S.
1036-1040.
710 F.2d 956, reversed.
POWELL, J., delivered the opinion of the Court, in which BURGER,
C.J., and WHITE, BLACKMUN, REHNQUIST, and O'CONNOR, JJ., joined.
STEVENS, J., filed a dissenting opinion, in which BRENNAN, J.,
joined,
post, p.
467 U. S.
1040. MARSHALL, J., took no part in the decision of the
case.
JUSTICE POWELL delivered the opinion of the Court.
This case brings before us a claim that pretrial publicity so
infected a state criminal trial as to deny the defendant his Sixth
Amendment right to an "impartial jury."
I
On April 28, 1966, the body of Pamela Rimer, an 18-year-old high
school student, was found in a wooded area near her home in
Luthersburg, Clearfield County, Pa. There were
Page 467 U. S. 1027
numerous wounds about her head and cuts on her throat and neck.
An autopsy revealed that she died of strangulation when blood from
her wounds was drawn into her lungs. The autopsy showed no
indication that she had been sexually assaulted.
At about 5:45 the following morning, respondent Yount appeared
at the State Police Substation in nearby DuBois. Yount, who had
been the victim's high school mathematics teacher, proceeded to
give the police oral and written confessions to the murder. The
police refused to release the confession to the press, and it was
not published until after it was read at Yount's arraignment three
days later. Record, Ex. P-1-a, P-1-d. At his trial in 1966, the
confessions were admitted into evidence. Yount took the stand and
claimed temporary insanity. The jury convicted him of first-degree
murder and rape, and he was sentenced to life imprisonment. On
direct appeal, the Pennsylvania Supreme Court determined that,
under
Miranda v. Arizona, 384 U.
S. 436 (1966), police had given Yount inadequate notice
of his right to an attorney prior to his confession. The court
remanded for a new trial.
Commonwealth v. Yount, 435 Pa.
276, 256 A.2d 464 (1969),
cert. denied, 397 U.S. 925
(1970).
Prior to the second trial in 1970, the trial court ordered
suppression of Yount's written confessions and that portion of the
oral confession that was obtained after he was legally in custody.
The prosecution dismissed the rape charge. There followed an
extensive
voir dire that is now at the heart of this case.
Jury selection began on November 4, 1970, and took 10 days, 7 jury
panels, 292 veniremen, and 1,186 pages of testimony. Yount moved
for a change of venue before, and several times during, the
voir dire. He argued that the widespread dissemination of
prejudicial information could not be eradicated from the minds of
potential jurors, and cited in support the difficulty of the
voir dire and numerous newspaper and other articles about
the case. The motions were denied. The trial court noted that the
articles merely reported
Page 467 U. S. 1028
events without editorial comment; that the length of the
voir dire resulted in part from the court's leniency in
allowing examinations and challenges of the jurors; that "almost
all, if not all," the jurors seated had "no prior or present fixed
opinion"; and that there had been "little, if any, talk in public"
between the two trials. The court also observed that the
voir
dire of the second trial had been sparsely attended.
Ultimately, 12 jurors and 2 alternates were seated. At the
second trial, Yount did not take the stand and did not claim
temporary insanity. Instead he relied upon cross-examination and
character witnesses in an attempt to undermine the State's proof of
his intent. The jury convicted him again of first-degree murder,
and he was resentenced to life imprisonment. The trial court denied
a motion for a new trial, finding that practically no publicity had
been given to the case between the two trials, and that little
public interest was shown during the second trial. App. 268a. In
addition, the court concluded that the jury was without bias. The
Pennsylvania Supreme Court affirmed the conviction and the trial
court's findings.
Commonwealth v. Yount, 455 Pa. 303,
311-314, 314 A.2d 242, 247-248 (1974).
In January 1981, Yount filed a petition for a writ of habeas
corpus in United States District Court. He claimed,
inter
alia, that his conviction had been obtained in violation of
his Sixth and Fourteenth Amendment right to a fair trial by an
impartial jury. The case was assigned to a Magistrate, who
conducted a hearing and recommended that the petition be granted.
The District Court rejected the Magistrate's recommendation.
537 F.
Supp. 873 (WD Pa.1982). It held that the pretrial publicity was
not vicious, excessive, nor officially sponsored, and that the
jurors were able to set aside any preconceived notions of guilt. It
noted that the percentage of jurors excused for cause was "not
remarkable to anyone familiar with the difficulty in selecting a
homicide jury in Pennsylvania."
Id. at 882. In addition,
the court reviewed
Page 467 U. S. 1029
the instances in which the state trial court had denied a
challenge for cause, and upheld the trial court's view that the
jury was impartial.
The Court of Appeals for the Third Circuit reversed. 710 F.2d
956 (1983). The court relied primarily on the analysis set out in
Irvin v. Dowd, 366 U. S. 717
(1961), and found that pretrial publicity had made a fair trial
impossible in Clearfield County. It independently examined the
nature of the publicity surrounding the second trial, the testimony
at
voir dire of the venire as a whole, and the
voir
dire testimony of the jurors eventually seated. The publicity
revealed Yount's prior conviction for murder, his confession, and
his prior plea of temporary insanity, information not admitted into
evidence at trial. [
Footnote 1]
The
voir dire showed that all but 2 of 163 veniremen
questioned about the case [
Footnote
2] had heard of it, and that, 126, or 77%, admitted they would
carry an opinion into the jury box. This was a higher percentage
than in
Irvin, where 62% of the 430 veniremen were
dismissed for cause because they had fixed opinions concerning the
petitioner's guilt. Finally, the Court of Appeals found that 8 of
the 14 jurors and alternates actually seated admitted that, at
Page 467 U. S. 1030
some time, they had formed an opinion as to Yount's guilt.
[
Footnote 3] The court thought
that many of the jurors had given equivocal responses when asked
whether they could set aside these opinions, and that one juror, a
Mr. Hrin, and both alternates would have required evidence to
overcome their beliefs. The court concluded that, "despite their
assurances of impartiality, the jurors could not set aside their
opinions and render a verdict based solely on the evidence
presented." 710 F.2d at 972. [
Footnote 4]
Judge Garth concurred in the judgment. He declined to join the
court's view that actual prejudice on the part of the jury might be
inferred from pretrial publicity and the answers at
voir
dire of veniremen not selected for the jury. He wrote that
"[a] thorough and skillfully conducted
voir dire should
be adequate to identify juror bias, even in a community saturated
with publicity adverse to the defendant."
Id. at 979. [
Footnote
5] Judge Garth nevertheless concurred because, in his view,
juror Hrin stated at
voir dire that he would have required
evidence to change his mind about Yount's
Page 467 U. S. 1031
guilt. This stripped the defendant of the presumption of
innocence. [
Footnote 6]
We granted certiorari, 464 U.S. 913 (1983), to consider, in the
context of this case, the problem of pervasive media publicity that
now arises so frequently in the trial of sensational criminal
cases. We reverse the judgment of the Court of Appeals.
II
As noted, the Court of Appeals rested its decision that the jury
was not impartial on this Court's decision in
Irvin v. Dowd,
supra. That decision, a leading one at the time, held that
adverse pretrial publicity can create such a presumption of
prejudice in a community that the jurors' claims that they can be
impartial should not be believed. The Court in
Irvin
reviewed a number of factors in determining whether the totality of
the circumstances raised such a presumption. The Court noted,
however, that the trial court's findings of impartiality might be
overturned only for "manifest error." 366 U.S. at
366 U. S. 723.
The Court of Appeals in this case did not address this aspect of
the
Irvin decision. [
Footnote 7] Moreover, the
Page 467 U. S. 1032
court below, in concentrating on the factors discussed at length
in
Irvin, failed to give adequate weight to other
significant circumstances in this case. In
Irvin, the
Court observed that it was during the six or seven months
immediately preceding trial that "a barrage of newspaper headlines,
articles, cartoons and pictures was unleashed against [the
defendant]."
Id. at 725. In this case, the extensive
adverse publicity and the community's sense of outrage were at
their height prior to Yount's first trial in 1966. The jury
selection for Yount's second trial, at issue here, did not occur
until four years later, at a time when prejudicial publicity was
greatly diminished and community sentiment had softened. In these
circumstances, we hold that the trial court did not commit manifest
error in finding that the jury as a whole was impartial.
The record reveals that, in the year and a half from the
reversal of the first conviction to the start of the second
voir dire, each of the two Clearfield County daily
newspapers published an average of less than one article per month.
App. 642a-657a; Record, Ex. P-1-v to P-1-kk, P-2. More important,
many of these were extremely brief announcements of the trial dates
and scheduling such as are common in rural newspapers.
E.g., App. 653a-656a; Record, Ex. P-1-ff, P-1-ii, P-1jj.
The transcript of the
voir dire contains numerous
references to the sparse publicity and minimal public interest
prior to the second trial.
E.g., App. 43a, 98a, 100a; Tr.
(Nov. 4, 1970) 27-28, 90, 191, 384, 771, 829, 1142. It is true
that, during the
voir dire, the newspapers published
articles on an almost daily basis, but these too were purely
factual articles generally discussing not the crime or prior
prosecution, but the prolonged process of jury selection. App.
658a-671a. In short, the record of publicity in the
Page 467 U. S. 1033
months preceding, and at the time of, the second trial does not
reveal the "barrage of inflammatory publicity immediately prior to
trial,"
Murphy v. Florida, 421 U.
S. 794,
421 U. S. 798
(1975), amounting to a "huge . . . wave of public passion,"
Irvin, 366 U.S. at
366 U. S. 728,
that the Court found in
Irvin.
The
voir dire testimony revealed that this lapse in
time had a profound effect on the community and, more important, on
the jury, in softening or effacing opinion. Many veniremen, of
course, simply had let the details of the case slip from their
minds.
E.g., App.194a; Tr. 33, 284, 541-544, 991. In
addition, while it is true that a number of jurors and veniremen
testified that, at one time, they had held opinions, for many, time
had weakened or eliminated any conviction they had had.
See,
e.g., App. 98a-100a (juror number 7), 128a (juror number 8);
Tr. 384-385, 398-399, 831, 897 (
semble), 1075-1076, 1144;
see also App. 164a-166a (juror number 10). [
Footnote 8]
Page 467 U. S. 1034
The same is true of the testimony of the jurors and veniremen
who were seated late in the process, and therefore were subjected
to some of the articles and broadcasts disseminated daily during
the
voir dire: [
Footnote
9] the record suggests that their passions had not been
inflamed, nor their thoughts biased by the publicity.
E.g.,
id. at 176a-177a, 150a-151a; Tr. 771, 959, 1027.
That time soothes and erases is a perfectly natural phenomenon,
familiar to all.
See Irvin v. Dowd, 271 F.2d 552, 561 (CA7
1959) (Duffy, J., dissenting) (A continuance should have been
granted because "[t]he passage of time is a great healer," and
public prejudice might have "subsid[ed]"),
rev'd,
366 U. S. 717
(1961);
see also Murphy, supra, at 802;
Beck v.
Washington, 369 U. S. 541,
369 U. S. 556
(1962). Not all members of the venire had put aside earlier
prejudice, as the
voir dire disclosed. They retained their
fixed opinions, and were disqualified. But the testimony suggests
that the
voir dire resulted in selecting those who had
forgotten or would need to be persuaded again. [
Footnote 10]
Page 467 U. S. 1035
The Court of Appeals below thought that the fact that the great
majority of veniremen "remembered the case" showed that time had
not served "to erase highly unfavorable publicity from the memory
of [the] community." 710 F.2d at 969. This conclusion, without
more, is essentially irrelevant. The relevant question is not
whether the community remembered the case, but whether the jurors
at Yount's trial had such fixed opinions that they could not judge
impartially the guilt of the defendant.
Irvin, 366 U.S. at
366 U. S. 723.
It is not unusual that one's recollection of the fact that a
notorious crime was committed lingers long after the feelings of
revulsion that create prejudice have passed. It would be fruitless
to attempt to identify any particular lapse of time that, in
itself, would distinguish the situation that existed in
Irvin. [
Footnote
11] But it is clear that the passage of time between a first
and a second trial can be a highly relevant fact. In the
circumstances of this case, we hold that it clearly rebuts any
presumption of partiality or prejudice that existed at the time of
the initial trial. There was fair, even abundant, support for the
trial court's findings that, between the two trials of this case,
there had been "practically no publicity given to this matter
through the news media," and that there had not been "any great
effect created by any publicity." App. 268a, 265a.
Page 467 U. S. 1036
III
Yount briefly argues here that juror Hrin, as well as the two
alternates, were erroneously seated over his challenges for cause.
Brief for Respondent 32. There is substantial doubt whether Yount
properly raised in his petition for habeas corpus the claim that
the trial court erroneously denied his challenge for cause to juror
Hrin.
Compare 710 F.2d at 966, n. 18,
with id. at
977, and n. 4 (Garth, J., concurring). And there is no evidence
that the alternate jurors, who did not sit in judgment, actually
talked with the other jurors during the 4-day trial. But Judge
Garth in the court below based his concurrence on the view that
Hrin would have required Yount to produce evidence to overcome his
inclination to think the accused was guilty, and the majority of
the panel thought that the 4-day association between the alternates
and the other jurors "operate[d] to subvert the requirement that
the jury's verdict be based on evidence developed from the witness
stand,"
id. at 971, n. 25. Therefore, we will consider
briefly the claims as to all three jurors.
It was the view of all three Court of Appeals judges that the
question whether jurors have opinions that disqualify them is a
mixed question of law and fact.
See id. at 968, n. 20,
981. Thus, they concluded that the presumption of correctness due a
state court's factual findings under 28 U.S.C. § 2254(d) does not
apply. The opinions below relied for this proposition on
Irvin
v. Dowd, 366 U.S. at
366 U. S. 723.
Irvin addressed the partiality of the trial jury as a
whole, a question we discuss in
467 U. S.
supra. We do not think its analysis can be extended to a
federal habeas corpus case in which the partiality of an individual
juror is placed in issue. That question is not one of mixed law and
fact. Rather, it is plainly one of historical fact: did a juror
swear that he could set aside any opinion he might hold and decide
the case on the evidence, and should the juror's protestation of
impartiality have been believed.
Cf. Rushen v. Spain,
464 U. S. 114,
Page 467 U. S. 1037
464 U. S. 120
(1983) (state court determination that juror's deliberations were
not biased by
ex parte communications is a finding of
fact). [
Footnote 12]
Page 467 U. S. 1038
There are good reasons to apply the statutory presumption of
correctness to the trial court's resolution of these questions.
First, the determination has been made only after an often extended
voir dire proceeding designed specifically to identify
biased veniremen. It is fair to assume that the method we have
relied on since the beginning,
e.g., United States v.
Burr, 25 F. Cas. 49, 51 (No. 15,692g) (CC Va. 1807) (Marshall,
C.J.), usually identifies bias. [
Footnote 13] Second, the determination is essentially one
of credibility, and therefore largely one of demeanor. As we have
said on numerous occasions, the trial court's resolution of such
questions is entitled, even on direct appeal, to "special
deference."
E.g., 466 U. S.
Consumers Union of U.S., Inc., 466 U.
S. 485,
466 U. S. 500
(1984). The respect paid such findings in a habeas proceeding
certainly should be no less.
See Marshall v. Lonberger,
459 U. S. 422,
459 U. S.
434-435 (1983). [
Footnote 14]
Thus, the question is whether there is fair support in the
record for the state courts' conclusion that the jurors here would
be impartial.
See 28 U.S.C. § 2254(d)(8). The
testimony
Page 467 U. S. 1039
of each of the three challenged jurors is ambiguous, and at
times contradictory. This is not unusual on
voir dire
examination, particularly in a highly publicized criminal case. It
is well to remember that the lay persons on the panel may never
have been subjected to the type of leading questions and
cross-examination tactics that frequently are employed, and that
were evident in this case. Prospective jurors represent a
cross-section of the community, and their education and experience
vary widely. Also, unlike witnesses, prospective jurors have had no
briefing by lawyers prior to taking the stand. Jurors thus cannot
be expected invariably to express themselves carefully or even
consistently. Every trial judge understands this, and, under our
system, it is that judge who is best situated to determine
competency to serve impartially. The trial judge properly may
choose to believe those statements that were the most fully
articulated or that appeared to have been least influenced by
leading.
The
voir dire examination of juror Hrin was carefully
scrutinized by the state courts and the Federal District Court, as
he was challenged for cause and was a member of the jury that
convicted the defendant. We think that the trial judge's decision
to seat Hrin, despite early ambiguity in his testimony, was
confirmed after he initially denied the challenge. Defense counsel
sought and obtained permission to resume cross-examination. In
response to a question whether Hrin could set his opinion aside
before entering the jury box or would need evidence to change his
mind, the juror clearly and forthrightly stated:
"I think I could enter it [the jury box] with a very open mind.
I think I could . . . very easily. To say this is a requirement for
some of the things you have to do every day."
App. 89a. After this categorical answer, defense counsel did not
renew their challenge for cause. Similarly, in the case of
alternate juror Pyott, we cannot fault the trial judge for
crediting her earliest testimony, in which she said that she could
put her opinion aside "[i]f [she] had to," rather than the later
testimony in
Page 467 U. S. 1040
which defense counsel persuaded her that, logically, she would
need evidence to discard any opinion she might have.
Id.
at 246a, 250a-252a. Alternate juror Chincharick's testimony is the
most ambiguous, as he appears simply to have answered "yes" to
almost any question put to him. It is here that the federal court's
deference must operate, for while the cold record arouses some
concern, only the trial judge could tell which of these answers was
said with the greatest comprehension and certainty.
IV
We conclude that the
voir dire testimony and the record
of publicity do not reveal the kind of "wave of public passion"
that would have made a fair trial unlikely by the jury that was
empaneled as a whole. We also conclude that the ambiguity in the
testimony of the cited jurors who were challenged for cause is
insufficient to overcome the presumption of correctness owed to the
trial court's findings. We therefore reverse.
It is so ordered.
JUSTICE MARSHALL took no part in the decision of this case.
[
Footnote 1]
The Court of Appeals rejected, as without fair support in the
record, the trial court's conclusion that there was practically no
publicity given to the case between the first and second trials.
See 710 F.2d 956, 969, n. 21 (1983). The federal court
suggested that the record on habeas of the publicity after the
first trial and during the second was more complete than the record
considered by the trial court.
Ibid.
The Court of Appeals also suggested that the trial court's view
that there was little talk in public concerning the second trial
was undermined by the
voir dire testimony that there had
been public discussion of the case, particularly in the last weeks
before retrial.
Id. at 969, n. 22. The court discounted,
as of limited significance, the trial court's point that few
spectators had attended the trial, since Yount did not allege
prejudice arising from the "
circus atmosphere'" in the
courtroom. Ibid.
[
Footnote 2]
One hundred twenty-five of the original 292 veniremen were
excused because they had not been chosen properly. Four others were
dismissed for cause before they were questioned on the case.
[
Footnote 3]
The Court of Appeals noted that, in
Irvin, 8 of 12
jurors had formed opinions of guilt.
[
Footnote 4]
Judge Stern wrote a separate concurring opinion in which he
suggested that the "constitutional standard which for 175 years has
guided the lower courts" in this area be rejected. 710 F.2d at 972.
Rather than hinge disqualification of a juror on whether he has a
fixed opinion of guilt that he cannot lay aside, Judge Stern would
bar any juror who admitted any opinion as to guilt. Moreover, no
jury could be empaneled where more than 25% of the veniremen state
that they held an opinion concerning the defendant's guilt. This
would raise such doubts as to the sincerity of those who claimed no
opinion as to suggest concealed bias, Judge Stern wrote.
[
Footnote 5]
Judge Garth thought
Irvin was distinguishable, because
there "the trial court (which itself questioned the jurors
challenged for cause) did not engage in a searching and thorough
voir dire." 710 F.2d at 979. Rather, it merely credited
the jurors' subjective opinions that each could render an impartial
verdict notwithstanding his or her opinion. Judge Garth also noted
that Yount challenged for cause only three of the actual jurors. In
Irvin, the defendant challenged each of his 12 jurors for
cause.
Irvin v. Dowd, 359 U. S. 394,
359 U. S. 398
(1959).
[
Footnote 6]
Judge Garth stated that whether juror Hrin was
unconstitutionally biased was a mixed question of law and fact
under
Irvin. 710 F.2d at 981. He therefore did not apply
the presumption of correctness that is applicable to the factual
findings of a state court in a federal habeas corpus proceeding, 28
U.S.C. § 2254(d).
[
Footnote 7]
The Court of Appeals appears to have thought that two statements
in
Irvin -- that a federal court must "independently
evaluate" the
voir dire testimony and that the question of
juror partiality is a mixed question of law and fact, 366 U.S. at
366 U. S. 723
-- meant that there is no presumption of correctness owed to the
trial court's finding that a jury as a whole is impartial. We note
that
Irvin was decided five years before Congress added to
the habeas corpus statute an explicit presumption of correctness
for state court factual findings,
see Pub.L. 89-711, 80
Stat. 1105-1106, and two years before this Court's opinion in
Townsend v. Sain, 372 U. S. 293
(1963) provided the guidelines that were later codified. It may be
that there is little practical difference between the
Irvin "manifest error" standard and the "fairly supported
by the record" standard of the amended habeas statute.
See
28 U.S.C. § 2254(d). In any case, we do not think the habeas
standard is any less stringent. Since we uphold the state court's
findings in this case under
Irvin's "manifest error"
standard, we do not need to determine whether the subsequent
development of the law of habeas corpus might have required a
different analysis or result in that case.
[
Footnote 8]
The testimony of juror number 7, Martin Karetski, during
examination by defense counsel is illustrative:
"Q. You have heard the matter discussed over the years?"
"A. In the past few years, I haven't heard too much about
it."
"Q. In 1966, when the matter came up before, you knew about it
then?"
"A. Yes sir."
"Q. And just recently, when this matter was coming up again, I
presume?"
"A. What I have read in the paper again."
"Q. And you have heard other people discuss it?"
"A. Not too many so far."
"Q. You have heard other people express opinions about it?"
"A. Not too many of those so far too."
"Q. Back around '66, did you?"
"A. Yes in '66."
"Q. . . . I assume you had an opinion as to [Mr. Yount's] guilt
or innocence [in 1966]?"
"A. I had an opinion, yes."
"Q. Do you have a opinion today as to his guilt or
innocence?"
"A. It's been a long time ago, and I'm not sure now. It was in
the paper he plead [
sic] not guilty."
"
* * * *"
"Q. Let me ask you this then. In case you do have an opinion,
could you wipe it out of your mind -- erase it out of your mind
before you would take a seat in the jury box and hear whatever
evidence you might hear?"
"A. As it is right now, I have no opinion now -- four or five
years ago, I probably did, but right now I don't."
"Q. What happened, Mr. Karetski, between then and now to
eliminate that opinion, if you can tell me?"
"A. Well, as far as I'm concerned, there wasn't much in the
paper about it, and it sort of slipped away from thought."
App. 98a-100a.
[
Footnote 9]
Jurors were sequestered as they were chosen.
[
Footnote 10]
As noted, the
voir dire in this case was particularly
extensive. It took 10 days to pick 14 jurors from 292 veniremen. In
Irvin, it took 8 days to pick 14 jurors from 430
veniremen.
Contrary to Judge Garth's surmise, 710 F.2d at 979, however, the
voir dire interviews quoted in the petitioner's brief in
Irvin do not appear to be significantly less probing than
those here.
See Brief for Petitioner in
Irvin v.
Dowd, O.T. 1960, No. 41, pp. 18-59. It should also be noted
that the
voir dire in
Irvin, like that here, was
conducted largely by counsel for each side, rather than the judge.
The only significant difference in the procedures followed here and
in
Irvin is that the veniremen here were brought into the
courtroom alone for questioning, while it appears that those in
Irvin were questioned in front of all those remaining in
the panel. This is not an insubstantial distinction, as the Court
suggested in
Irvin, 366 U.S. at
366 U. S. 728,
but we do not find it controlling.
[
Footnote 11]
In
Murphy v. Florida, 421 U. S. 794
(1975), the defendant -- widely known as "Murph the Surf" -- relied
heavily on
Irvin. The record of damaging publicity
preceding his trial was at least as extreme as that in this case.
Nevertheless, we found the record there distinguishable from
Irvin. We noted that the extensive publication of news
articles about Murphy largely had ceased some seven months before
the jury was selected. 421 U.S. at
421 U. S. 802.
Murphy involved a lapse in publicity prior to the
defendant's first trial; there was no second trial in that
case.
[
Footnote 12]
There are, of course, factual and legal questions to be
considered in deciding whether a juror is qualified. The
constitutional standard that a juror is impartial only if he can
lay aside his opinion and render a verdict based on the evidence
presented in court is a question of federal law,
see
Irvin, 366 U.S. at
366 U. S. 723;
whether a juror can in fact do that is a determination to which
habeas courts owe special deference,
see Rushen, 464 U.S.
at
464 U. S. 120.
Cf. Marshall v. Lonberger, 459 U.
S. 422,
459 U. S.
431-432 (1983) (similar analysis as to whether a guilty
plea was voluntary).
See also Reynolds v. United States,
98 U. S. 145,
98 U. S. 156
(1879) (whether a juror should be disqualified is a question
involving both a legal standard and findings of fact; the latter
may be set aside only for manifest error).
The dissent misreads the Court's opinion in
Reynolds v.
United States. Post at
467 U. S.
1050-1052, and nn. 6 and 7.
Reynolds was
decided some 87 years before the presumption of correctness for
factual findings was added to 28 U.S.C. § 2254. The Court clearly
did not attach the same significance to the phrase "a question of
mixed law and fact" that we do today under modern habeas law. It
recognized that juror disqualification questions may raise both a
question of law -- whether the correct standard was applied -- and
a question of fact. Whether an opinion expressed by a juror was
such as to meet the legal standard for disqualification was viewed
as a question of fact as to which deference was due to the trial
court's determination. This is apparent from the language quoted by
the dissent, which notes that, while the question is one of "mixed
law and fact," it is "to be tried, as far as the facts are
concerned, like any other issue of that character, upon the
evidence. The finding of the trial court upon that issue ought not
to be set aside by a reviewing court, unless the error is
manifest." 98 U.S. at
98 U. S. 156.
Plainly, factual findings were to be considered separately from the
legal standard applied, and deference was due to those findings.
This is also apparent from the following passage:
"[T]he manner of the juror while testifying is oftentimes more
indicative of the real character of his opinion than his words.
That is seen below, but cannot always be spread upon the record.
Care should, therefore, be taken in the reviewing court not to
reverse the ruling below upon such a
question of fact,
except in a clear case."
Id. at
98 U. S.
156-157 (emphasis added). Taken together, these passages
plainly show that the "character of [a juror's] opinion" was
considered a question of fact. Contrary to the suggestion of the
dissent,
post at
467 U. S.
1050, n. 6, the factual question was not limited to
whether the juror was telling the truth, but included discovering
the "real character" of any opinion held. Deference was due to the
trial court's conclusions on that question.
[
Footnote 13]
Accord, In re Application of National Broadcasting Co.,
209 U.S.App.D.C. 354, 362, 653 F.2d 609, 617 (1981) ("
[V]oir
dire has long been recognized as an effective method of
rooting out such bias, especially when conducted in a careful and
thoroughgoing manner");
United States v. Duncan, 598 F.2d
839, 965 (CA4),
cert. denied, 444 U.S. 871 (1979);
Calley v. Callaway, 519 F.2d 184, 209, n. 45 (CA5 1975)
(en banc) (citing cases),
cert. denied sub nom Calley v.
Hoffman, 425 U.S. 911 (1976).
But cf. Smith v.
Phillips, 455 U. S. 209,
405 U. S. 222,
and n. (1982) (O'CONNOR, J., concurring) (describing situations in
which state procedures are inadequate to uncover bias);
Rideau
v. Louisiana, 373 U. S. 723
(1963) (same).
[
Footnote 14]
Demeanor plays a fundamental role not only in determining juror
credibility, but also in simply understanding what a potential
juror is saying. Any complicated
voir dire calls upon lay
persons to think and express themselves in unfamiliar terms, as a
reading of any transcript of such a proceeding will reveal.
Demeanor, inflection, the flow of the questions and answers can
make confused and conflicting utterances comprehensible.
JUSTICE STEVENS, with whom JUSTICE BRENNAN joins,
dissenting.
On page 1 of its opinion, the Court carefully states certain
facts that give the reader a strong feeling about how this case
should be decided. In 1966, Jon Yount confessed that he was
responsible for the brutal killing of an 18-year-old high school
student. At his first trial in 1966, he testified that he had been
temporarily insane at the time, but the jury did not believe him.
He was found guilty of rape, as well as murder. These facts were
not admissible in evidence at his second trial. What impact, if
any, did these inadmissible facts have upon 12 jurors, the 2
alternate jurors, and indeed the trial judge, who listened to the
evidence at Yount's second trial in 1970? The Court is satisfied
that "community sentiment had
Page 467 U. S. 1041
softened,"
ante at
467 U. S.
1032, and that the trial judge "did not commit manifest
error in finding that the jury as a whole was impartial,"
ibid., because of the passage of time between 1966 and
1970, and because we all know that "time soothes and erases,"
ante at
467 U. S.
1034.
In order to explain why I disagree with the Court's assessment
of the case, it is necessary to enlarge upon its summary of the
news coverage of the crime and its aftermath, to supplement its
discussion of the examination of the jurors, and to explain why the
Court of Appeals properly rejected the trial judge's conclusion
that the jury as a whole was impartial. Next, I will discuss my
disagreement with the Court's conclusion regarding juror Hrin.
Finally, I shall add a word about the more profound issue that a
case of this kind raises.
I
Because the Court places such great emphasis on the fact that
"this lapse in time had a profound effect on the community and,
more important, on the jury, in softening or effacing opinion,"
ante at
467 U. S.
1033, it is important to note that there were, in
effect, three chapters in the relevant news coverage: the stories
about the crime itself and the first trial in 1966; the stories and
events surrounding the State Supreme Court's reversal of the first
conviction in 1969; and the stories that were published in 1970
immediately before the second trial began and while the jury was
being selected.
The relevant events all occurred in Clearfield County, Pa.,
where both Yount and the victim lived. It is a rural county, with a
population of about 70,000, served by two newspapers with a
combined circulation of about 25,000. Not surprisingly, both
newspapers gave front-page coverage to the homicide, the pretrial
proceedings, and the trial itself. In numerous editions of the
DuBois Courier Express, the newspaper carried banner headlines on
the front page, news stories and feature articles. App. 520a-641a;
Record, Ex. P-1-a, P-1-b, P-1-d, P-1-f to P-1-t. The Clearfield
Progress evaluated the trial as the "Top News Story of
Page 467 U. S. 1042
1966." Record, Ex. P-2, p. 2. Both papers reported that public
interest in the proceedings was "unprecedented." 710 F.2d 956, 962
(CA3 1983). Moreover, the case also received radio and television
coverage,
see, e.g., Tr. (Nov. 4, 1970) 64 (juror number
1), 142, 220, 277, and, according to the Court of Appeals, was
publicized in out-of-state and national publications. 710 F.2d at
962, n. 6.
The articles were extremely detailed. [
Footnote 2/1] As the Court of Appeals noted, they
"related in full [Yount's] detailed written confessions, as well
as his testimony at trial retelling the homicide. They also
detailed [Yount's] defense of temporary insanity, the charge and
evidence of rape, and finally [Yount's] conviction on October 7,
1966, of both rape and first-degree murder."
Id. at 963;
see, e.g., App. 538a-540a,
603a-606a. As this Court notes, "the extensive adverse publicity
and the community's sense of outrage were at their height prior to
Yount's first trial in 1966,"
ante at
467 U. S.
1032.
In 1969, a divided Supreme Court of Pennsylvania reversed
Yount's conviction and ordered a new trial.
Commonwealth v.
Yount, 435 Pa. 276, 256 A.2d 464 (1969),
cert.
denied, 397 U.S. 925 (1970). This event did not pass unnoticed
in Clearfield County. To the contrary, banner headlines announced
the reversal. App. 642a; Record, Ex. P-1-v. The local press
reprinted the entire dissenting opinion. App. 644a; Record, Ex.
P-1-x. And, as the Court of Appeals stated, "a local radio program
became a forum in
Page 467 U. S. 1043
which callers expressed their hostility to [Yount]." 710 F.2d at
963. This evidence contradicts the easy assumption that "community
sentiment had softened,"
ante at
467 U. S.
1032.
In 1970, Yount was returned to Clearfield County for a retrial
in the same courtroom before the same judge who had presided at the
first trial -- the judge whose erroneous rulings had made the
second trial necessary. Yount moved for a change of venue on the
ground that the continuing discussion of the case among local
residents made it impossible for him to receive a fair trial in
Clearfield County. In response, the prosecutor argued that a change
of venue would be pointless, because the case had been so widely
publicized throughout the State. The trial court denied the motion,
explaining that the recent newspaper items had consisted of purely
factual reporting "without editorial comment of any kin[d]." App.
260a. This venue ruling generated a front-page article.
Id. at 654a; Record, Ex. P-1-gg. Additionally, during the
subsequent
voir dire, the selection of jurors merited
numerous articles, and sometimes merited a profile on the juror
selected. App. 658a-659a, 661a-663a, 664a-671a; Record, Ex. P-1-1l,
P-1-nn to P-1-vv; P-2.
The
voir dire testimony of one prospective juror, the
wife of a minister, sheds a revelatory light on the character of
local sentiment on the eve of the second trial. After acknowledging
that she had heard many opinions about the case, she was asked:
"Q. Would your presence in serving as a juror create a
difficulty in your parish?"
"A. Why yes -- when people heard my name on for this --
countless people of the church have come to me and said they hoped
I would take -- the stand I would take in case I was called. I have
had a prejudice built up from the people in the church."
"Q. Is this prejudice, has it been adverse to Mr. Yount?
Page 467 U. S. 1044
"
"A. Yes it was. They all say he had a fair trial and he got a
fair sentence. He's lucky he didn't get the chair."
"
* * * *"
"[T]he church people -- I haven't asked for any of this, but
they discuss it in every group -- but they say now, since you are
chosen and you will be there, we expect you to follow through."
"Q. Notwithstanding what the Court would tell you, you feel you
would be subject to the retributions or retaliation of these people
--"
"A. I think I would hear about it."
App. 25a-27a.
The minister's wife was excused. Her testimony, as well as that
of other veniremen who were excused, not only repudiates the notion
that the community had all but forgotten the Yount case, but also
suggests that some veniremen might have been tempted to understate
their recollection of the case because they felt they had a duty to
their neighbors "to follow through." [
Footnote 2/2] In all events, the record clearly
establishes that the case was still a "
cause celebre" in
Clearfield County in 1970.
II
Even if all the
voir dire testimony is accepted at face
value, it is difficult to understand how a neutral observer could
conclude that the jury as a whole was impartial. Before referring
to the 12 jurors and 2 alternates who were selected, it is useful
to describe the attitude that pervaded the entire venire.
The jury selection took 10 days.
Id. at 745a; 710 F.2d
at 963, 975. Out of an original total of 292 veniremen, the court
dismissed 129 because they had been chosen improperly, Tr. 685-686,
or had a valid reason for not serving.
Id. at 117-118,
492, 1039, 1060-1061. Of the remaining 163 who
Page 467 U. S. 1045
were questioned, all but 2 had read or heard about the case,
id. at 127a-128a, 370a-371a (juror number 4); all but 42
were dismissed for cause. 710 F.2d at 963. Of the 121 dismissed for
cause, 96 testified that they had firm opinions that could not be
changed regardless of what evidence might be presented. Twenty-one
others testified that they could only change their opinion if Yount
could convince them to do so. In addition, there were nine
veniremen who were unsuccessfully challenged for cause who also
testified that they had opinions that they could change only if
Yount could convince them to do so. [
Footnote 2/3]
Id. at 963-964. Thus, as Judge
Hunter summarized for the Court of Appeals:
"When we combine those nine with the 117 veniremen dismissed for
cause, we find that a total of 126 out of the 163 veniremen
questioned on the case were willing to admit on
voir dire
that they would carry their opinion[s] into the jury box. [
Footnote 2/4]"
Id. at 964.
Turning to the jurors who were actually selected, Judge Hunter
accurately noted that "the publicity had reached all but one of the
twelve jurors and two alternates finally empaneled."
Ibid.
(footnote omitted); App. 32a, 43a, 71a, 83a, 98a, 120a, 149a, 163a,
176a, 193a, 210a, 235a, 250a. Juror number 1 noted that "it was
pretty hard to be here in Clearfield County and not read something
in the paper" about the case; that she had read newspaper stories
and listened
Page 467 U. S. 1046
to radio and television stories about the case; and that she had
heard the case being discussed by other people.
Id. at
32a. Juror number 2 testified that he had read about the case in
the newspapers; that "[y]ou could hardly miss it on [radio and
television] news"; and that he had formed an opinion about the
case.
Id. at 43a-44a. The person seated as juror number 3
[
Footnote 2/5] stated that he had
read about the case in the newspapers years before the
voir
dire, but that he had not formed an opinion.
Id. at
210a-211a. Juror number 4, a newcomer to the area, had never heard
of the case.
Id. at 57a-58a. Juror number 5 "remembered
that they had said he was guilty before," and wondered why they
were having another trial.
Id. at 73a. James F. Hrin,
juror number 6, testified that he had an opinion about the case,
and that he would require the presentation of evidence to change
it.
Id. at 83a, 85a. He noted that
"[i]t's rather difficult to live in DuBois and get the paper and
find out what people are talking about -- at least the local . . .
people -- without having some opinion or at least reserving some
opinion."
Id. at 88a. Juror number 7 stated that he had read
about the case; that he had formed an opinion; and that he was not
sure whether he still had an opinion.
Id. at 98a-99a.
Juror number 8 testified that she had heard others express opinions
concerning the case, and she only had an opinion "on just what he
said himself -- that he was guilty."
Id. at 120a, 125a.
Juror number 9 stated that she had felt that petitioner was guilty,
but that presently she would have to hear both sides before forming
an opinion.
Id. at 150a. Juror number 10 had heard people
express their opinions and had on occasion expressed his own
opinion about the case. He also stated that he would listen to both
sides before forming a present opinion.
Id. at 164a-165a.
Juror number 11 testified that he had read newspaper accounts of
the case, but that he had
Page 467 U. S. 1047
formed no opinion.
Id. at 177a. Juror number 12 had
read about the case, but she had formed no opinion.
Id. at
193a-194a. Two alternates were seated over Yount's challenges for
cause. Alternate number 1 stated that he had heard people express
opinions and ideas about the case; that he had expressed an
opinion; that he still had a firm and fixed opinion based on what
he read in the newspapers; and that he would require evidence to be
presented before he could put his opinion out of his mind.
Id. at 235a-240a. Alternate number 2 stated that she had
formed a definite opinion and that she would require the production
of evidence to change her mind.
Id. at 251a-252a.
The totality of these circumstances convinces me that the trial
judge committed manifest error in determining that the jury as a
whole was impartial. The trial judge's comment that there was
little talk in public about the second trial,
id. at 264a,
is plainly inconsistent with the evidence adduced during the
voir dire. Similarly, the trial court's statement that
"there was practically no publicity given to this matter through
the news media . . . except to report that a new trial had been
granted by the Supreme Court,"
id. at 268a, simply ignores at least 55 front-page
articles that are in the record. Record, Ex. P-1, P-2. Further, the
trial judge's statement that "almost all, if not all, [of the first
12] jurors . . . had no prior or present fixed opinion," App. 264a,
is manifestly erroneous; a review of the record reveals that 5 of
the 12 had acknowledged either a prior or a present opinion.
Id. at 43a-44a, 83a, 98a-99a, 150a, 164a-165a. The trial
judge's "practically no publicity" statement also ignores the
first-trial details within the news stories. These included Yount's
confessions, testimony, and conviction of rape -- all of which were
outside of the evidence presented at the second trial.
See
id. at 643a-644a, 650a, 655a; Record, Ex. P-1-w, P-1-x, P-1-z,
P-1-cc, P-1-hh. Under these circumstances, I do not believe that
the jury was capable of deciding the case solely on the evidence
before it.
Smith v.
Phillips, 455
Page 467 U. S. 1048
U.S. 209,
455 U. S. 217
(1982) ("Due process means a jury capable and willing to decide the
case solely on the evidence before it").
III
The Court today also rejects Yount's claim that juror Hrin was
erroneously seated over his challenge for cause. Before explaining
why I disagree with this conclusion, it is necessary to set forth a
more complete version of Hrin's
voir dire testimony than
is set forth by the Court.
Hrin, in response to the prosecution's questioning, gave the
following testimony:
"Q. Have you formed any opinion as to the guilt or innocence of
Mr. Yount?"
"A. To the degree that it was written up in the papers,
yes."
"Q. Is this a fixed opinion on your part?"
"A. This is sort of difficult to answer. Fixed?"
"Q. Let me ask -- if you were to be selected as a juror in this
case and take the jury box, could you erase or remove the opinion
you now hold and render a verdict based solely on the evidence and
law produced at this trial?"
"A. It is very possible. I wouldn't say for sure."
"Q. Do you think you could?"
"A. I think I possibly could."
"Q. Then the opinion you hold is not necessarily a fixed and
immobile opinion?"
"A. I would say not, because I work at a job where I have to
change my mind constantly."
"Q. Would you be able to change your mind regarding your opinion
before becoming a juror in this case. That's the way I must have
you answer the question."
"A. If the facts were so presented, I definitely could change my
mind."
"Q. Would you say you could enter the jury box presuming him to
be innocent?
Page 467 U. S. 1049
"
"A. It would be rather difficult for me to answer."
"Q. Can you enter the jury box with an open mind prepared to
find your verdict on the evidence as presented at trial and the law
. . . presented by the Judge?"
"A. That I could do."
App. 8a-84a. Yount's counsel elicited further testimony through
cross-examination:
"Q. Did I understand Mr. Hrin you would require some -- you
would . . . require evidence or something before you could change
your opinion you now have?"
"A. Definitely. If the facts show a difference from what I had
originally -- had been led to believe, I would definitely change my
mind."
"Q. But until you're shown those facts, you would not change
your mind -- is that your position?"
"A. Well -- I have nothing else to go on."
"Q. I understand. Then the answer is yes -- you would not change
your mind until you were presented facts?"
"A. Right, but I would enter it with an open mind."
"Q. In other words, you're saying that, while facts were
presented, you would keep an open mind, and after that, you would
feel free to change your mind?"
"A. Definitely."
"Q. But you would not change your mind until the facts were
presented?"
"A. Right."
Id. at 85a-86a. Yount's counsel subsequently challenged
for cause; the court denied the challenge because Hrin "said he
could go in with an open mind."
Id. at 86a.
First, even if we regard the relevant rulings as findings of
fact, Hrin's testimony clearly is sufficient to overcome the
presumption of correctness due a state court's factual findings
under 28 U.S.C. § 2254(d). The state court's determination is not
fairly supported by the record. Hrin not only
Page 467 U. S. 1050
indicated that he had a previous opinion as to Yount's guilt or
innocence, but also that he required evidence produced at trial to
dispel that opinion. Further, he stated -- pursuant to the
prosecution's questioning -- that "[i]t would be rather difficult .
. . to answer" whether he could enter the jury box presuming
Yount's innocence. Under these circumstances, I am convinced that
the trial court improperly empaneled Hrin.
More important, however, I believe the Court's analysis
regarding whether a juror has a disqualifying opinion is flawed.
The Court begins by stating that such a question is one of
historical fact,
ante at
467 U. S.
1036. It then concludes, simply, that this factual
finding is entitled to 28 U.S.C. § 2254(d)'s presumption of
correctness. Finally, it acknowledges that "[t]here are, of course,
factual and legal questions to be considered in deciding whether a
juror is qualified,"
ante at
467 U.S. 1037, n. 12, and cites as one
authority
Reynolds v. United States, 98 U. S.
145 (1879). [
Footnote
2/6]
Page 467 U. S. 1051
Contrary to the Court, I believe that whether a juror has a
disqualifying opinion is a mixed question of law and fact. The
proper starting point of analysis is
Reynolds v. United States,
supra. In that case, the defendant excepted to the trial
court's decision to reject several challenges for cause that were
based on juror testimony during
voir dire.
Id. at
98 U. S.
146-147. This Court upheld the trial court's decision.
Id. at
98 U. S. 157.
Before reaching its ultimate conclusion, the Court stated:
"The theory of law is that a juror who has formed an opinion
cannot be impartial. Every opinion which he may entertain need not
necessarily have this effect. In these days of newspaper enterprise
and universal education, every case of public interest is almost,
as a matter of necessity, brought to the attention of all the
intelligent people in the vicinity, and scarcely anyone can be
found among the best fitted for jurors who has not read or heard of
it, and who has not some impression or some opinion in respect to
its merits. It is clear, therefore, that, upon the trial of the
issue of fact raised by a challenge for such cause, the court will
practically be called upon to determine whether the nature and
strength of the opinion formed are such as in law necessarily to
raise the presumption of partiality. The question thus presented is
one of mixed law and fact, and to be tried, as far as the facts are
concerned, like any other issue of that
Page 467 U. S. 1052
character, upon the evidence. The finding of the trial court
upon that issue ought not to be set aside by a reviewing court,
unless the error is manifest."
Id. at
98 U. S.
155-156.
Irvin v. Dowd, 366 U. S. 717
(1961), extended
Reynolds to habeas corpus proceedings.
Initially,
Irvin noted that a presumption of a prospective
juror's impartiality is not rebutted "if the juror can lay aside
his impression or opinion and render a verdict based on the
evidence presented in court." 366 U.S. at
366 U. S. 723.
Next, the Court affirmed that a proper inquiry may demonstrate
"
whether the nature and strength of the opinion formed are such
as in law necessarily . . . raise the presumption of partiality,'"
ibid. (quoting Reynolds v. United States, supra,
at 98 U. S. 156),
and that this inquiry is "`one of mixed law and fact.'" 366 U.S. at
366 U. S.
723.
Thus,
Reynolds and
Irvin teach that the
question whether a juror has an opinion that disqualifies is a
mixed one of law and fact. Therefore, one cannot apply the
presumption of correctness found in 28 U.S.C. § 2254(d), because
the statutory language, by definition, applies only to the factual
determinations of state courts. Applying the proper analytical
framework, I believe that Hrin's testimony clearly raised a
presumption of partiality. Therefore, the trial judge committed
manifest error by improperly empaneling Hrin. [
Footnote 2/7]
There is a special reason to require independent review in a
case that arouses the passions of the local community in which an
elected judge is required to preside. Unlike an appointed federal
judge with life tenure, an elected judge has reason to be concerned
about the community's reaction to his
Page 467 U. S. 1053
disposition of highly publicized cases. Even in the federal
judiciary, some Circuits have determined that it is sound practice
to have the retrial of a case assigned to a different judge than
the one whose erroneous ruling made another trial necessary; for
though the risk that a judge will subconsciously strive to
vindicate the result reached at the first trial may be remote, as
long as human beings preside at trials, that possibility cannot be
ignored entirely.
IV
Two additional and somewhat disturbing questions merit comment:
(1) why did this Court exercise its discretionary jurisdiction to
review this case; and (2) even if the Court of Appeals' analysis of
the case is entirely correct, why should those federal judges order
the great writ of habeas corpus to issue for the benefit of a
prisoner like Yount, who, it would seem, is guilty of a heinous
offense?
The answer to the question why the Court grants certiorari in
any given case usually involves considerations of both fact and
law. It appears that the facts motivated the Court to select this
case for plenary review. The facts that had such a motivating
impact on this Court -- that the conviction of a confessed murderer
of a high school student had been set aside by an appellate court
-- also, I believe, must have had an emotional and unforgettable
impact on the residents of Clearfield County. The desire to "follow
through" -- to do something about such an apparent miscarriage of
justice -- is difficult for judges as well as laymen to resist.
[
Footnote 2/8]
It should not be forgotten that Yount has already been
incarcerated for 18 years. If, as the Court of Appeals held, he
Page 467 U. S. 1054
has not yet been found guilty beyond a reasonable doubt in a
fair trial, the possibility remains that he has already received a
greater punishment than is warranted. Of much greater importance is
our dedication to the principle that guilt or innocence of a
criminal offense in our society is not to be decided by executive
fiat or by popular vote. This is a principle that affords
protection for every citizen in the United States. Justice
Frankfurter stated this point in his concurrence in
Irvin v.
Dowd:
"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."
366 U.S. at
366 U. S.
729.
I would affirm the judgment of the Court of Appeals.
[
Footnote 2/1]
The "details" of the articles prompted two citizens to write
letters to the Courier Express. One letter complained that the
paper had "fanned the already poisoned atmosphere of malicious
gossip" by putting a picture of the corpse on the front page and by
the "repetitive use of gory details." The author added that he
thought he "was looking at the National Enquirer." The second
letter noted:
"Emotional editorializing most certainly has it's [
sic]
place in reporting, but I strenuously object to such when it
appears in headline stories. . . . [D]escriptive words that do much
to sell newspapers and stir emotions discredit headline reporting
and tend to prejudice the suspect regardless of degree of
guilt."
Record, Ex. P-1-e.
[
Footnote 2/2]
As the Court of Appeals pointed out, another prospective juror
testified that his opinion had been erased by the passage of time,
but his daughter-in-law testified that he had left for jury duty
voicing great animosity toward Yount. 710 F.2d at 964;App.
766a.
[
Footnote 2/3]
The Court of Appeals added:
"Petitioner peremptorily challenged six of those nine veniremen,
one was seated as a juror, and the remaining two were seated as
alternates after petitioner had exhausted his peremptory
challenges."
710 F.2d at 964, n. 13.
[
Footnote 2/4]
At this point, the Court of Appeals added the following
footnote:
"In addition, we note that twelve other veniremen stated that
they had had an opinion at one time, but claimed they would not
carry it into the jury box. One of the twelve veniremen was
dismissed for cause, six were peremptorily challenged by
petitioner, and five were seated as jurors."
Id. at 964, n. 14.
[
Footnote 2/5]
The person initially selected as juror number 3 was not able to
sit because of personal reasons. Tr. 1060-1061.
[
Footnote 2/6]
The Court attempts to justify its treatment of
Reynolds
by quoting from a passage in that case that begins with: "[T]he
manner of the juror while testifying is oftentimes more indicative
of the real character of his opinion than his words."
Ante
at
467 U.S. 1037, n. 12
(quoting 98 U.S. at
98 U. S.
156-157). The excerpt from
Reynolds quoted by
the Court dealt with the question whether a juror's testimony was
truthful -- specifically whether a prospective juror was falsely
seeking to disqualify himself. In this case, the question is
whether Hrin's testimony, including his acknowledged opinion about
Yount's guilt, raised a presumption of partiality. Whether the
testimony of a witness is true or false is a question of fact;
whether his statement raises a presumption of partiality is a mixed
question of law and fact. The fully quoted relevant passage of
Reynolds demonstrates the former point:
"The reading of the evidence leaves the impression that the
juror had some hypothetical opinion about the case, but it falls
far short of raising a manifest presumption of partiality. In
considering such questions in a reviewing court, we ought not to be
unmindful of the fact we have so often observed in our experience,
that jurors not infrequently seek to excuse themselves on the
ground of having formed an opinion, when on examination, it turns
out that no real disqualification exists.
In such cases,
the manner of the juror while testifying is oftentimes more
indicative of the real character of his opinion than his words.
That is seen below, but cannot always be spread upon the record.
Care should, therefore, be taken in the reviewing court not to
reverse the ruling below upon such a question of fact except in a
clear case."
Id. at
98 U. S.
156-157 (emphasis added).
The Court also cites as authority
Rushen v. Spain,
464 U. S. 114
(1983) (per curiam), and
Marshall v. Lonberger,
459 U. S. 422
(1983). Neither of those cases was correctly decided. Moreover, the
latter case is plainly inapplicable, because it involved the
voluntariness of guilty pleas, not juror partiality. The former
involved an allegation of juror partiality that arose after the
trial began.
[
Footnote 2/7]
The Court states that it
"do[es] not think [
Irvin's] analysis can be extended to
a federal habeas corpus case in which the partiality of an
individual juror is placed in issue."
Ante at
467 U. S.
1036. The validity of
Irvin (habeas corpus
case) and of
Reynolds (individual jurors), and the
inapplicability of 28 U.S.C. § 2254(d), dispose of any meaningful
reason not to "extend" these cases to federal habeas corpus cases
in which the partiality of individual jurors is placed in
issue.
[
Footnote 2/8]
I recently noted, in 19 consecutive cases in which the Court
exercised its discretion to decide a criminal case summarily, the
Court made sure that an apparently guilty defendant was not given
too much protection by the law.
See Florida v. Meyers,
466 U. S. 380,
466 U. S.
385-387, and n. 3 (1984). The string of consecutive
summary victories for the prosecution now stands at 20.
See
Massachusetts v. Upton, 466 U. S. 727
(1984) (per curiam).