HAM v. SOUTH CAROLINA

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Argument of Jonathan Shapiro

Chief Justice Warren E. Burger: We’ll hear arguments next in 71-5139, Ham against South Carolina.

Mr. Shapiro you may proceed whenever you’re ready.

Mr. Jonathan Shapiro: Mr. Chief Justice and may it please the Court.

This case is here on certiorari to a decision of the South Carolina Supreme Court affirming petitioner’s conviction and sentenced to one-and-a-half years of hard labor for the possession of marijuana.

The certiorari grant was limited to the issue of whether a black criminal defendant is constitutionally entitled to any opportunity to examine prospective jurors on voir dire with respect to whether they are prejudice against him because of his race or because of certain pretrial publicity in the case.

Thus, this case raises for the first time in this Court as a question of the right of a criminal defendant to examine and to challenge for cause a jurors who are called to decide his case.

We think that that right is a part of the constitutional right to a jury trial and that in this case it was violated.

The petitioner is a black civil rights worker who has been active in the County of Florence in South Carolina as a representative of SCLC, as well as at the time a member of the Bi-Racial Commission of the City of Florence.

He was indicted on June 1, 1970 for the crime of possession of marijuana.

His defense in the case into trial of the case at which he testified was that the charge against him was a result of complicity by the local police authorities to frame him because of his civil rights activities.

Over his objection, the trial was commenced on the day after indictment that is on June 2nd.

Although petitioner, his counsel sought to make motions for a change of venue and for a continuance on the basis of pretrial publicity and possible prejudice on the part of the prospective jurors, he was unable to do so in sworn affidavits as required under South Carolina Law and rather was forced to make the request orally to the court which overruled both motions summarily.

He made similarly an oral motion to quash the trial venire on the grounds that blacks had been systematically excluded and after a hearing on the June 2nd, the Court denied that motion.

On the next day, prior to the selection of the jury, a petitioner requested the trial judge to voir dire the prospective jurors with respect to several matters relating to whether they were prejudiced against him because he was black and because of certain pretrial publicity in extrajudicial statements in the case.

Specifically, he requested that each prospective juror be asked whether he or she was prejudiced against Negroes, whether the fact that the defendant was black would affect his or her ability to render an impartial judgment and verdict in the case.

Whether the fact that the petitioner was bearded would make any difference in the way they decided the case.

In addition, he specifically requested that the trial judge asked the jurors about certain publicity which he claimed had poisoned the minds of -- or possibly poisoned the minds of persons in that county with respect to persons charged with the crime which the petitioner was charged with, and also with respect to whether any of them had heard a television program several days before the trial at which the State’s chief prosecution witness had appeared and had talked extensively in connection with drug crimes.

The trial judge refused to ask any of the proposed questions on the grounds that they were irrelevant.

Instead, he posed three questions to the perspective jurors.

He asked them whether any of them had formed or expressed an opinion as to guilt or innocence of the petitioner whether any of them was sensible of any bias or prejudice for or against him and whether each of them could give the State and the defendant a fair trial.

The entire examination of the prospective jurors in this case took a total of 12 pages of the record.

It was hurried, formalistic and routine.

Each juror as he was called and sworn was put, the exact same question by the trial judge.

Each juror with two exceptions answered the questions, the first two question no and the third question yes.

No further examination was gone into in any case.

The only two exceptions was one juror who answered the first two questions no, but in response to the third question said that she was rather not cert.

One juror said that she had a formed or expressed in opinion as to guilt or innocence.

But beyond that, no jurors in anything more than no, no, yes to the entire board to your proceeding.

Justice Potter Stewart: Mr. Shapiro, do you have your brief at hand there?

Mr. Jonathan Shapiro: Yes.

Justice Potter Stewart: On page four, the -- right after the quote at the bottom of the page where it says that jurors were excused that should be two jurors should it?

Mr. Jonathan Shapiro: That’s correct.

Justice Potter Stewart: TWL?

Mr. Jonathan Shapiro: Yes, its two jurors, that’s a typographical error.

Justice Potter Stewart: Right.

Justice William H. Rehnquist: Mr. Shapiro, under South Carolina practice, after the judge has put the questions that he wants to put on voir dire.

Are counsel permitted to conduct any voir dire of their own?

Mr. Jonathan Shapiro: The South Carolina practice would permit counsel to question the juror at the judges discretion, that is -- it’s permissible for the judge to allow counsel although the usual practice is for the judge to conduct the entire voir dire examination and the more usual practice is for the judge to ask questions proposed by counsel as was done in this case.

Justice William H. Rehnquist: Did the counsel for petitioner here seek to interrogate the jury on his own after the judge had declined to put the questions himself?

Mr. Jonathan Shapiro: No, the counsel submitted written proposed voir dire questions to the judge prior to the selection of the jurors and when they were refused, he sought no further attempt to question the jurors.

Chief Justice Warren E. Burger: Then we have to construe that record as meaning that a request on the part of the counsel would have been fruitless, is that correct?

Mr. Jonathan Shapiro: I think that’s the necessary conclusion since the preferred practice in the South Carolina is for the judge to put all questions to the jury and when counsel did request that he do so and that request was denied.

I think that it’s certainly reasonable to infer that any further request would have been fruitful.

Justice Thurgood Marshall: Wasn’t it all said along page 35, the court said this is all irrelevant.

I’m not going to do it.

Mr. Jonathan Shapiro: I think that that certainly indicates the way the judge would have ruled with respect to the --

Justice Thurgood Marshall: That’s the way it did rule.

Mr. Jonathan Shapiro: Exactly.

Justice Thurgood Marshall: Well isn’t that what it says on page 35 of the writ?

Mr. Jonathan Shapiro: Yes it does, he ruled that the questions were irrelevant and would not put it in way --

Justice William J. Brennan: Mr. Shapiro, three questions to which Mr. Justice Stewart referred to you at page four of your brief.

Do I understand that those three questions are required by South Carolina statute?

Mr. Jonathan Shapiro: The South Carolina statute which is set out in the footnote 3 on page 5 of the brief states that the court shall on motion of either party in this suit examined on oath, any person who is called to know whether he is related to either party, has any interest in the cause, has expressed or formed any opinion or a sensible of any bias or prejudice therein.

And the South Carolina Supreme Court has interpreted that statute to be satisfied when questions, general questions has a nature put to the jurors by the trial judge are asked.

Justice William J. Brennan: So these three questions were asked five of trial judge in obedience to that statute was that it?

Mr. Jonathan Shapiro: That’s correct, that’s correct, although it should be noted that the judge did not even fully comply with the – all of the requirements to that statute of the three questions, the South Carolina Supreme Court held on appeal constituted sufficient compliance under South Carolina Law.

The refusal of the trial judge to voir dire the jurors with respect to the issues posed was raised on appeal on the South Carolina Supreme Court which affirmed the conviction holding that it was within the discretion of the trial judge to refuse the questions and that there was no abuse of that discretion shown in this case.

Two judges of the South Carolina Supreme Court has dissented on the ground that this Court’s decision in Aldridge versus United States was binding on the South Carolina courts and that the questions with respect to racial prejudice as this Court held in Aldridge should have been that.

Justice William J. Brennan: How many judges are on that?

Mr. Jonathan Shapiro: There are five judges.

Justice William J. Brennan: And this was three to two?

Mr. Jonathan Shapiro: That’s correct.

We don’t understand the State in this case to question the general proposition that a criminal defendant has a constitutional right to challenge for cause, jurors who are prejudice against him because of race or because of pretrial publicity.

The right of challenge is a right which we think is a necessary component of two independent constitutional rights, the right to a jury trial and the right to a trial before an impartial tribunal.

The right to a jury trial has included the right challenge as long as there have been jury trials.

It’s a right which developed at the time the right to a jury trial developed in the first instance and has never been deviated from the either before or after the adoption of the United States Constitution.

What Mr. Justice Powell said with respect to unanimity requirement in the Apodaca case, we think is equally if not more true about the right of challenge and that is that, although the history of the Sixth Amendment is ambiguous in the sense that we don’t have the record of the framers, the history of the right of challenge at common law has been unambiguous and we think that it has been related to the right to jury trial for a time in more.

We think also that the right of challenge is essential to the very function which the jury is intended to serve and that is to provide an impartial barrier between the State and the defendant.

If there’s any one element of the right to jury trial which is essential, we think it’s the impartiality of that body and we think that the right of challenge is the only means of successfully guarantying that impartiality.

We think also that the right of challenge is implicit in the right to jury trial in this Court’s decision in Apodaca where the rationale for eliminating the unanimity requirement is premised on the defendant’s ability to secure an impartial, responsible panel of jurors who will decide his case.

Chief Justice Warren E. Burger: How far would you carry the specific questions, for example which, if the request had been made do you have any prejudice against people who wear pink shirts?

Mr. Jonathan Shapiro: No.

Chief Justice Warren E. Burger: And the defendant was wearing a pink shirt or his counsel was wearing a pink shirt, do you think that inquiry must be made?

Mr. Jonathan Shapiro: I would think certainly not.

I think that most of the questions and the extent of a voir dire examination must necessarily rest in the discretion of the trial judge for the most part.

Here however, we’re confronted with the question of whether any examination at all with respect to an issue which was crucial not only to this particular case but is crucial to any case where there is a black criminal defendant on trial before an overwhelmingly white jury and where there has been a certain amount of pretrial publicity in extrajudicial statements connected with the case.

Chief Justice Warren E. Burger: What was the final composition of the trial jury?

Mr. Jonathan Shapiro: The jury was 10 white and two black as finally in panel --

Chief Justice Warren E. Burger: And does the State require a unanimous verdict in a criminal case there?

Mr. Jonathan Shapiro: It does, in South Carolina it does require a unanimous verdict.

Chief Justice Warren E. Burger: So that the, either one, any one juror could have prevented the verdict?

Mr. Jonathan Shapiro: Yes, that’s correct.

Chief Justice Warren E. Burger: Well, I am to take that the answer or your response to that other question Mr. Shapiro that you’re really concentrating on -- you’re really concerned about the questions on a racial prejudice.

Essentially, aren’t you not wearing a pair of your own --

Mr. Jonathan Shapiro: I think that this case involved two areas which this Court on numerous occasions has recognized or perhaps the most fundamental areas in dealing with impartiality on juries and that’s racial prejudice and pretrial publicity.

We think these areas, certainly are areas which are essential that the trial judge examined jurors with respect to.

There may be other questions which in other cases are essential to selecting the impartial jury in the case of Morford versus United States, this Court held that a trial judge was required to examine prospective jurors with respect to whether a loyalty order would affect their ability as government employees to give the defendant who in that case was a communist who had refused to testify before the Un-American Activities Committee that that inquiry in the circumstances of that case was crucial.

Justice William H. Rehnquist: Was that a constitutional holding?

Mr. Jonathan Shapiro: We think that it was.

The court -- it’s a brief per curiam order but in that decision, the Court did cite and refer to Dennis versus United States where the Court held that preservation of the opportunity to prove actual bias is essential to the selection of an impartial jury and we think that that implicit in that and reliance of the (Inaudible) court on that is that it was at least with respect to that federal case a part of the right to an impartial jury under the Sixth Amendment.

Chief Justice Warren E. Burger: Are you saying in effect Mr. Shapiro that the statutory questions that are required there might be entirely satisfactory for an ordinary routine case but that when special factors emerged, the Constitution requires that the judge exercise discretion to cover a broader range of inquiry of the jury?

Mr. Jonathan Shapiro: I think that’s a fair statement of our position which is at in any, in a given case, the irrelevance of the area of inquiry, proposed questions to issues and the circumstances of the case are what must be considered and that when dealing with something as fundamental as the issues in this case, racial prejudice and pretrial publicity that the judge cannot refuse to inquiring to these areas.

Chief Justice Warren E. Burger: Well now on the Aldridge case back 49 years ago, had the trial judge there ask any questions at all or had he just refused to make any inquiry?

Mr. Jonathan Shapiro: There was a voir dire examination in the Aldridge case which is set out at 283 U.S. 309 and that examination did relate to the facts of that particular case bias or prejudice of the juries with respect to certain kind of evidence and certainly even that examination was a lot more extensive than the examination in this case.

The judge in that case did refuse a specific question with regard to racial prejudice and this Court held that that refusal violated the essential demands of fairness under the circumstances of the case.

In addition to the right of challenge resting on the Sixth Amendment right to a jury trial as applied for the States.

We think it also is directly related to the right to a trial before an impartial body.

We think that the right of challenge is crucial to selecting jurors who will not be influence by passion or prejudice or extrajudicial matters.

We think it’s more essential even than the right which this Court recognize in Groppi versus Wisconsin to obtain of change of venue in certain cases and indeed is more basic to than the right to a cross-section of the community.

Because this right is one which can only be satisfied, the right to an impartial jury, one can only determine the partiality of jurors by questioning them specifically and exercising the right of challenge.

The only position the State takes basically in this case is that the general questions that the judge did put to the jury and satisfied whatever constitutional requirements there are.

However, to conclude that we think would make the constitutional requirement hollow indeed.

Because the questions which were asked did not relate in any way and did not direct the juries attention in any way to the crucial questions which counsel sought to put to the jury.

There was no question at all which can even be construed as asking the jurors whether they had heard or had been prejudice by any of the extrajudicial statements or the pretrial publicity which had related to the case.

The only question which came -- comes near that is the question as to whether they had formed or expressed any opinion with respect to the case but it must be recognized that at that time when that question was asked, the jurors knew nothing whatsoever about the case.

All they knew was that the defendant’s name was Gene Ham.

They didn’t know what the nature of the case was.

They didn’t know what the crime he was charged with was.

And they had no idea of who was going to testify in the case and as I pointed out before, the chief prosecution witness was the person who had appeared on local television several days before discussing drug crimes.

In that sense, the case is very close to Turner versus Louisiana where this Court held that the contact between the jurors and prosecution witnesses even without a showing of actual bias or prejudice was enough to deny the defendant a right to an impartial jury.

The other questions with respect to general bias or prejudice for or against, we don’t think can satisfy the requirements of probing racial prejudice.

But we think that this Court’s decision in Aldridge, in Dennis, in Morford indicate the specific inquiries are indeed essential to securing an impartial jury.

We think it’s clear that when jurors are put formal hurried questions in open court where an immediate response is expected, they won’t volunteer thing such as whether or not they are prejudice because of race.

Justice William J. Brennan: Incidentally, with this seriatim kind of proceeding where each prospective venireman was asked -- each venireman was asked these three questions?

Mr. Jonathan Shapiro: Correct, each juror was called to the -- they were all in the box.

The judge went from one to the other asking each.

Justice William J. Brennan: And repeated the question.

Mr. Jonathan Shapiro: That’s correct.

So that we think that the general question as put would reduce the right of challenge and the right of examination to a hollow guarantee.

This Court has recognized that the jury is fundamental to American scheme of justice but the jury will only be able to serve its high function if the procedures are designed to ensure impartialities to the greatest extent of passing.

Because petitioner was deprived of the opportunity to secure the impartiality in this case, we think his right to an impartial jury was denied and that is conviction should be reversed.

Chief Justice Warren E. Burger: Thank you, very well, Mr. Shapiro.

Mr. Quinn.

Argument of Timothy G. Quinn

Mr. Timothy G. Quinn: Mr. Chief Justice, may it please the Court.

The facts of this case having been presented in the appendix, I will not reiterate them with the permission of the Court.

It basically appeared to be two issues involved.

First, did the trial judges refusal a prejudicial pretrial publicity or questioning as to prejudicial pretrial publicity on the examination of the jurors through the voir dire, violate their ability to render a fair verdict?

There’s no question to that pretrial publicity is a proper subject for questioning on voir dire.

If there is a showing that pretrial publicity did exist that the pretrial publicity did refer to the petitioner that the pretrial publicity was prejudicial.

In this case, there was no such showing.

There was no pretrial publicity which referred directly to the petitioner.

There was no pretrial publicity which is prejudicial nor was any pretrial publicity other than general publicity regarding the drug problem in the State of South Carolina, County of Florence which we contend there is no -- I mean in newspaper in the state today that you cannot pick up with that finding, some allegations as to drug use or drug abuse.

The facts in this case reveal that the pretrial publicity alleged to be prejudicial consisted of three articles in the same newspaper published on the same date.

None of which referred to the petitioner and all were dealing only generally with the drug problem.

Chief Justice Warren E. Burger: Where do we find them in the record?

Mr. Timothy G. Quinn: Page 12.

Chief Justice Warren E. Burger: Thank you.

Mr. Timothy G. Quinn: At the top of this page it states the clippings, appearing in Florence, morning news.

Under these circumstances we contend that there was no abuse and discretion on the part of the trial judge in refusing to ask these specific questions in sought.

Perhaps at some basis or even conjecture and that’s specific prejudicial items might have reached the venire.

We contended it was wiser for the trial judge to phrase before the examination and the general terms that he did.

With no showing of pretrial publicity, that was prejudicial, the chief question of this appeal becomes whether the refusal of the trial judge to ask the specific questions sought on voir dire pertaining to the defendant’s race and the fact that he wears a beard.

The trial judge ruled that this proffered questions were irrelevant and he asked general questions instead and the general questions being have he formed or expressed any opinion as to the guilt or innocence of the defendant, Gene Ham?

Are you conscious of any bias or prejudice for or against him?

Can you give the State and the defendant a fair and impartial trial?

The petitioner was present in the courtroom.

He was within view of the jury.

It was obvious that he was Negro, that he was black and that he wore beard.

Is it necessary that the trial judge asks, are you aware of any bias or prejudice for or against this defendant who is a Negro, black and wears a beard when these facts are so obvious?

The State contends, not.

Did not, the general questioning presented encompasses specific inquiries sought by the petitioner, we think that it did.

And we think the effectiveness of this general questioning was proved by the facts when two jurors stated in response to the general questions that they could not fairly serve and they were excused by the trial court.

Justice Thurgood Marshall: Which juror.

Mr. Timothy G. Quinn: I’m not aware of -- you mean which -- what was the race have to do?

Justice Thurgood Marshall: The one you mentioned on 47, I don’t agree with it (Inaudible).

Mr. Timothy G. Quinn: I don’t understand your question, Your Honor.

Justice Thurgood Marshall: You said there were two witnesses that were excused?

Mr. Timothy G. Quinn: Yes.

Justice Thurgood Marshall: Do you?

Mr. Timothy G. Quinn: Yes, sir.

Justice Thurgood Marshall: Or juror?

Mr. Timothy G. Quinn: Yes, sir.

Justice Thurgood Marshall: For what reason?

Mr. Timothy G. Quinn: When they stated that they could not give the State or the defendant a fair and impartial trial.

Justice Thurgood Marshall: They ought it?

Mr. Timothy G. Quinn: Or that they rather not serve.

Justice Thurgood Marshall: (Inaudible).

Mr. Timothy G. Quinn: Yes, sir.

I apologize.

The two jurors were excused in response to the general question in voir dire, and that was excused by the court.

Were these not more effectively than any line of questioning cause of the remaining veniremen to be unnoticed that they cannot serve with an impartial attitude?

And would that not just cause the remaining veniremen to fairly search their souls for any prejudice or impartiality which would prevent their rendering a fair and impartial trial and a fair and impartial verdict based upon the facts and the evidence presented?

Justice Thurgood Marshall: In South Carolina, do you use the same questions on a capital offense?

Mr. Timothy G. Quinn: Yes, Your Honor.

Justice Thurgood Marshall: Same questions?

Mr. Timothy G. Quinn: Yes, Your Honor.

Justice Thurgood Marshall: Have you read Witherspoon against Illinois?

Mr. Timothy G. Quinn: I beg your pardon?

Justice Thurgood Marshall: Have you ever read Witherspoon against Illinois?

Mr. Timothy G. Quinn: Yes, I had Your Honor.

Sixth Amendment United States Constitution guarantees the right to trial by an impartial jury has been held that this includes the right to challenge the cause how about, neither way of any holding that it says a right to preempt for a challenge is included therein.

The right to challenge the cause must be accompanied by some showing of bias or prejudice which would affect the juror’s ability to render a fair and impartial trial.

Clearly there was no such showing in the instant case.

Was the petitioner denied the opportunity to make such showing?

Did it have any grounds to suspect bias or prejudice?

Did it present any grounds to the trial judge justifying his suspicion? None of these things were done.

Justice Harry A. Blackmun: Mr. Quinn, what would have been lost however, had the Court asked the requested questions?

Mr. Timothy G. Quinn: In this particular instance, I don’t anything will be of loss, Your Honor.

I think that the trial judge was concerned with future cases coming before it.

These were a short number of questions and he did rule that they were irrelevant.

I think that was within his discretion to do so.

But I personally do not think anything has been lost.

Justice Harry A. Blackmun: Well, I suppose his irrelevancy conclusion must have been based in the thought that the statutorily prescribed questions covered the ground?

Mr. Timothy G. Quinn: I would assume so Your Honor.

Justice Harry A. Blackmun: Because otherwise they certainly were relevant.

Mr. Timothy G. Quinn: Yes, Your Honor.

Chief Justice Warren E. Burger: Returning Mr. Quinn to those references at page 12 to the newspaper clippings.

Were those newspaper clippings put in evidence and are they in the record of the case?

They are not in this appendix as far as I can find.

Mr. Timothy G. Quinn: They were in the records of the -- in the case that was appealed to the States Supreme Court but they are not in the appendix.

That’s correct.

Chief Justice Warren E. Burger: Well are they up here do you know?

Mr. Timothy G. Quinn: I do not think so.

The law was that petitioner apparently contends would be that the Sixth Amendment to United States Constitution guarantees the right to conduct fishing expeditions and this we contend cannot be so.

If this were the law, then the law would reduce the function of the trial judge and the question of voir dire of jurors to that of apparent thought to repeat each questions submitted to him for it submitted that there’s no question no matter how innocuous that might lead to some bias or prejudice.

For example, I expect that a Christian might have somewhat bias attitude towards an atheist.

I expect that this might be somewhat bias toward the member of the military establishment, and as the Chief Justice stated, I expect that someone who has a version to pink shirts might have somewhat bias attitude to someone who wore one.

But I do not think and I do not contend that this existing bias or prejudice would prevent this juror from rendering a fair and impartial trial upon giving his oath, affirmation to do so.

I submit that the Sixth Amendment of the United States Constitution does not guarantee the right to trial by jury from a jury free of all biases, all prejudices and all impartiality.

Justice William H. Rehnquist: Of course Mr. Quinn even if the conclusion of the answering of these questions by the jurors, the trial judge were to say I don’t find the -- I don’t find the juror to be disqualified.

It might be that the petitioner’s counsel would have obtained some information that would have helped him exercise his preempted challenges.

Mr. Timothy G. Quinn: Your Honor, I think this is a crucial issue of the cases whether the Sixth Amendment of the United States Constitution guarantees the right to prove into the prospective jurors as to whether -- as to the propriety of exercise and the preempt for a chance.

And I think this is what I’m referring to as a fishing expedition which I don’t think comes within the confines of the Sixth Amendment.

Justice William H. Rehnquist: You said under the no form of voir dire is incorporated into the notion of a jury trial as the Sixth Amendment.

Mr. Timothy G. Quinn: No, Your Honor.

I’m stating that absent some showing, some basis for supporting the question on voir dire then the unsupported questions can be properly excluded.

Justice Potter Stewart: Was this issue raised as a constitutional issue in the Supreme Court of your state?

I noticed on the opinion of the Court at least as it in affirmative.

It appears on page 102, there is just a brief paragraph discussing this and it’s all in the terms of alleged errors in the matter of state law.

Nothing about the United States Constitution, nothing about either the Sixth or the Fourteenth Amendment in your Supreme Court’s opinion discussing it and while the dissent talks about a Supreme Court case which it says in which decision is binding upon this Court.

I think that’s you would agree, that’s probably an erroneous statement because the O’Brien case was not a constitutional case.

It just was a matter of errors, a matter of administration of federal criminal law.

Was this issue ever raise, just a constitutional issue or not?

It doesn’t seem to have been decided as such by Your Supreme Court.

Mr. Timothy G. Quinn: I think the issue was brought to the attention of the Supreme Court into arguments of the defendant at the Supreme Court level.

In the sense that they alleged and alluded to the fact that he was denied the fair trial, I don’t think there were any specific constitutional issues involved particularly that brought forth.

Justice Potter Stewart: Well, do you place any reliance on that?

Generally speaking, we don’t consider questions here that haven’t been raised in a timely way and up through the trial in appeal of a case in the state courts.

And if there is no federal question properly raised in this Court we have no jurisdiction to this case.

Mr. Timothy G. Quinn: Your Honor, in our brief on certiorari, we did raised this issue and supported in that brief on certiorari and our brief in our position of certiorari and we have worked the contention at that time that no federal question was presented in the State Supreme Court and we would adhere to this decision on our opinion today.

Justice Harry A. Blackmun: But at least for what it’s worth, the dissenters in your State Supreme Court referred to Aldridge.

Mr. Timothy G. Quinn: Yes, Your Honor.

Justice Potter Stewart: Which is not a constitutional decision?

Mr. Timothy G. Quinn: That’s correct.

Justice William H. Rehnquist: Of course, if you turn to page 101 of the record at the very bottom there and majority made by Judge Littlejohn.

Mr. Timothy G. Quinn: No, I guess that was the continuance -- I am sorry, I withdraw it.

Justice Potter Stewart: That’s a different issue.

Mr. Timothy G. Quinn: That was a continuance.

Justice Potter Stewart: That’s Powell against Alabama.

Mr. Timothy G. Quinn: Yes.

The State submits that the Sixth Amendment requires not that jurors be free of all partiality whether such partiality does not interfere with there duty to render a fair and impartial trial.

Justice Thurgood Marshall: What’s your definition of the word “impartial?”

Mr. Timothy G. Quinn: A situation in a way such partiality if it does exist is not interfered with the rendering of a trial based upon the facts and evidences as presented with no outside influencing factors, Your Honor.

Justice Thurgood Marshall: But you could have a bias?

Mr. Timothy G. Quinn: I think everyone possesses some bias of some type no matter how slight or how --

Justice Thurgood Marshall: Do you think the juror has a bias against a particular group of people and could give an impartial trial?

Mr. Timothy G. Quinn: I think that would be an undue assumption, Your Honor.

Justice Thurgood Marshall: But you can’t ask it, can you?

Mr. Timothy G. Quinn: I can’t state that what bias exist in anyone.

I don’t think that anyone can.

I don’t think that any --

Justice Thurgood Marshall: And you don’t think anybody is entitled to try to find out?

Mr. Timothy G. Quinn: I think that they are entitled to find out, Your Honor.

Justice Thurgood Marshall: How could you find out without questions?

Mr. Timothy G. Quinn: There is no way you could find out that way.

Justice Thurgood Marshall: Thank you.

Mr. Timothy G. Quinn: However, there must be some ground where I believe about the prior to the submitting of the questions to the jurors.

Chief Justice Warren E. Burger: I take it that your position is that the questions that were asked in this case were sufficient to flush out any part of prejudice, you pointed out that several jurors did respond that they could not be fair, they were then excused.

Mr. Timothy G. Quinn: That’s correct Your Honor, I think that the general questions asked did encompass specific question sought absent some showing that the specific questions might elicit some bias or prejudice and the suspicion that somebody’s prejudice must have some grounds for that.

I submit that the Sixth Amendment requires not that the juror be free of all partiality but such a perfect jury does not exist.

A voir dire examination designed to uncover all existing biases of prejudice or partiality could lead to the circumstances recognized by one of our State Supreme Court and I state in their opinion that I quote “The records of the cases appeal to this Court in which rulings made while impaneling a jury have been involved, indicate that there is an increasing tendency to prolong the proceedings inordinately by allowing counsel on either side to indulge of tedious examination of jurors apparently with no definite purpose or object in view but with a hope of eliciting something indicating the advisability of rendering, a preempt for a challenge and that is supposed privilege of doing so has been greatly abused.”

This opinion was rendered in 1912 and I think this is even more appropriate today, the congested court docket, and the congested system of judicial administration.

These go into the conclusion that an unlimited voir dire examination cannot coexist with efficient administration of justice.

It must be some compromise.

We contend that this compromise is a laying of the groundwork for the admission of the particular question sought.

Absent of this ground, we think that there is no basis for these questions.

We contended there was no abuse of discretion in the instant case particularly when the judges -- trial judges voir dire examination encompass the specific inquiry sought and was effective to produce a jury which could render a fair and impartial trial that verdict be based upon the facts.

Rather, we state that is more effective if the question -- this general question is proved to supply this necessary jury.

For these reasons, we respectively -- respectfully submit in conclusion that decision in South Carolina State Supreme Court be affirmed.

Chief Justice Warren E. Burger: Thank you Mr. Quinn.

Mr. Shapiro you got a few minutes left.

Rebuttal of Jonathan Shapiro

Mr. Jonathan Shapiro: I would like to first address myself to the point derived by Mr. Justice Stewart with respect to whether the issue was properly presented below.

In the briefs in the South Carolina Supreme Court, the petitioner made the following statements.

“The question is a Constitutional one of due process of law as for whether a jury is prejudice or partial in the sense of one of the parties has denied a fair and impartial trial.

It is not a procedural one to determine by statutory construction but one of vital substance of law under the Constitution.”

That petitioner was referring to United States Constitution is made clear in the following paragraphs where he continues and quotes Irvin versus Dowd, Sheppard versus Maxwell and Irideau versus Louisiana for the proposition that the refusal to ask the question designed to insure the right to an impartial trial is included in this Court so pronouncement in those cases.

He further continued and cited the Strauder, Georgia versus --

Justice William J. Brennan: What I gather Mr. Shapiro, in the Supreme Court of South Carolina that you first -- that constitutional question was first raised, is it?

Mr. Jonathan Shapiro: That it was explicitly raised in this fashion, yes that’s correct.

We think however under South Carolina practice that it was appropriate with the race in the way it was and the assignments in there and in the South Carolina Supreme Court, and that the fact that the South Carolina Supreme Court didn’t explicitly refer to the Constitution in its opinion does not indicate that it wasn’t presented.

In fact, there were a several constitutional issues that were presented as clearly as this one which the South Carolina Supreme Court equally neglected to, refer to in its opinion.

Justice Potter Stewart: As Justice Rehnquist implicitly pointed out in dealing with the motion for a continuance, the South Carolina Supreme Court explicitly did deal with it as a constitutional question citing Powell against Alabama and so on.

But with this issue, the only issue now before us, one could never know from reading the opinion of the South Carolina Supreme Court that that court understood that it was faced with the federal constitutional issue.

Mr. Jonathan Shapiro: Frankly, I think it’s without rhyme and reason, the issues which the South Carolina Supreme Court shows to refer to in federal constitutional term.

Petitioner also argued that denial of his right to a change of venue expressed, he violated his right to a fair impartial trial under the Sixth and Fourteenth Amendment yet the South Carolina Supreme Court makes no reference at all to the federal constitution in disposing of that issue.

So we think that that cannot be taken to mean that they didn’t consider.

We think the issue is whether it was properly presented and we think that under South Carolina law and it would.

Justice William H. Rehnquist: Mr. Shapiro I think under our cases, in order to successfully raise something in the State Supreme Court that hasn’t been raised in the trial court if the ordinary state rule is that you must first raise it in the State Trial Court, don’t you have to show that the Supreme Court of the State passed on the question even though it didn’t have to and then you can bring it here?

Mr. Jonathan Shapiro: We think that under South Carolina law, the issue was presented sufficiently in this case to present the constitutional issue in the South Carolina Supreme Court.

Justice William H. Rehnquist: You mean South Carolina doesn’t have any rule of say practice that one must make a constitutional objection at ones earliest opportunity?

Mr. Jonathan Shapiro: No.

We think that --

Justice William H. Rehnquist: What you rely on for that?

Mr. Jonathan Shapiro: Well, only the South Carolina decisions which we have cited again in our reply brief on certiorari cases such as State versus Brown 240 South Carolina 357 126 Southeast 2d. Several other cases dealing with voir dire question.

We think indicate that under South Carolina law and this was adequately raised and were appointed to no decision to the contrary.

Justice William H. Rehnquist: Adequately raised as a matter of constitutional --

Mr. Jonathan Shapiro: As a matter of state law and as a matter of Constitution.

I think that when this Court looks to a State Supreme Court decision if an issue is properly raised under state law with respect to the federal issue that on this Court has jurisdiction to consider it regardless of whether the State Supreme Court consider it.

Justice William H. Rehnquist: But it’s true but one could raise a voir dire question in the South Carolina courts either as a matter of state law or as a matter of constitutional law.

Now, I take it in order to get it here as a matter of constitutional or you must show that was properly raised in the appropriate time of the South Carolina proceedings or that if it wasn’t, the Supreme Court occurs.

South Carolina even though it didn’t have to pass and it did pass on.

Mr. Jonathan Shapiro: We think that the cases are mentioned to the Court indicate that under South Carolina law, a request that certain questions be asked in order to insure an impartial jury raises the question as far as South Carolina is concerned under both state and federal terms and no additional statement is necessary.

Justice Potter Stewart: But where are those cases cited?

Mr. Jonathan Shapiro: They are cited in our reply brief on the cert petition.

Justice Potter Stewart: Well I don’t seem to have that both if you file it, we can find it.

Thank you.

Justice William J. Brennan: Mr. Shapiro, may I ask you.

I know your red light is on.

What’s your view of whether Aldridge is constitutional is it?

Mr. Jonathan Shapiro: Well, we think that it certainly has constitutional dimension.

The Court certainly did not explicitly refer the Constitution.

It did however deal with the issue in terms of the “essential demands of fairness.”

Justice William J. Brennan: Except that it dealt with the District of Columbia statute.

Mr. Jonathan Shapiro: It dealt with a case coming up under that.

Justice William J. Brennan: That Justice McReynolds dissent was addressed only to the --

Mr. Jonathan Shapiro: Right.

But I don’t think that the issue was a statutory one.

I think the statute dealt with the mode by which this Court could review the decision but as far as the issue of whether the particular question should have been asked was --

Justice William J. Brennan: Well, I suppose your argument is anyway -- I told you it’s not a constitutional decision. Something like it and it will now be the constitutional rule.

Mr. Jonathan Shapiro: I think so, and I think that this Court indicated it as much in Swain versus Alabama where the Court stated that the fairness of trial by jury requires that the influence of race on jurors be explored.

Chief Justice Warren E. Burger: Mr. Shapiro, if you are pressing as I assume you are the pretrial publicity issue, I’m a little surprised that you didn’t put in your appendix, what these newspaper articles contain.

The reference at page 12 doesn’t really tell us anything, does it?

Mr. Jonathan Shapiro: The newspaper articles as far as I know are not in the trial record.

As --

Chief Justice Warren E. Burger: Shouldn’t they be if we are going to put the situation in context and determine whether these questions were necessary?

Mr. Jonathan Shapiro: I think that the issue which we’re not posing is not -- that we’re posing is not whether or not there was such a pretrial publicity as to deny a fair trial.

We’re rather suggesting that where there has been pretrial publicity that the duty of the trial judge is at least to inquire whether jurors have been prejudice.

Now in the case where there --

Chief Justice Warren E. Burger: Well doesn’t the content of that publicity, the substance of it govern the answer to that?

Mr. Jonathan Shapiro: Not necessarily, we think that for example a juror might be prejudice by publicity which didn’t rise to the -- to such as would -- under to this Court’s decision that deprived him of a fair trial if that juror has said.

The fact of the matter is if the juror was exposed, he might have been prejudice.

Justice Thurgood Marshall: Well all I see from this record is that there was a newspaper articles about something.

Mr. Jonathan Shapiro: The newspaper articles as counsel pointed out into the trial judge dealt extensively with the problems relating to drug crimes --

Justice Thurgood Marshall: But where do I get that information from?

Mr. Jonathan Shapiro: Well only from counsel statement that --

Justice Thurgood Marshall: Well that didn’t give me anything except that they were -- the names at the newspaper.

Or did I miss something.

Mr. Jonathan Shapiro: Well I think counsel only referred to the fact that --

Justice Thurgood Marshall: I didn’t hear from another clipping which refers to a recent television program and an editor.

Mr. Jonathan Shapiro: And the question --

Justice Thurgood Marshall: Okay.

Mr. Jonathan Shapiro: The question on page 36 --

Justice Thurgood Marshall: 36?

Mr. Jonathan Shapiro: Have you -- that he requested that the judge asked stated, have you heard or read about recent newspaper articles to the effect that the local drug problem --

Justice Thurgood Marshall: Where is that now?

Mr. Jonathan Shapiro: It’s on page 36 of the appendix in --

Justice Thurgood Marshall: Where do we start in that?

Mr. Jonathan Shapiro: Proposed question number 4.

Justice Thurgood Marshall: That’s proposed question.

Mr. Jonathan Shapiro: That’s correct.

Justice Thurgood Marshall: But I mean, where is the recent newspaper article that’s mentioned there?

Mr. Jonathan Shapiro: They’re not in the record.

Justice Thurgood Marshall: Well, what good as it does if it’s not in the record?

Mr. Jonathan Shapiro: Well, I don’t think that it’s any good at this point.

Justice Thurgood Marshall: Well what -- how can you sustain that point, that they should be asked this question?

Mr. Jonathan Shapiro: Because our position is not that there was such prejudicial publicity as to deny him a fair trial but rather in view of the showing --

Justice Thurgood Marshall: But is there anything in this record that shows that there was any publicity on this case?

Mr. Jonathan Shapiro: There is nothing in the record that shows that there was any publicity about this specific case.

Justice Thurgood Marshall: Is there anything in this record that show to any publicity about anything?

Mr. Jonathan Shapiro: I think that page 12 indicates that the clippings that the counsel handed to the judge dealt with drug crimes in Florence County.

Justice Thurgood Marshall: Well where is that?

I assume clipping was our light to get into the Court showing just the kind of publicity that has taken place.

I have a clip here from the Florence Morning News of May 29, 1970.

Another clip from the Florence Morning News and which referred the recent telegram program which in the editor -- all you got are the names of the newspaper.

Mr. Jonathan Shapiro: I think that if you read the proposed question on page 36 in light of that submission of the question, it indicates that the newspaper articles related to the fact that the local drug problem is bagged in the words of counsel.

Justice Thurgood Marshall: Well do you suggest that I go down and read those newspapers?

Mr. Jonathan Shapiro: No.

Justice Thurgood Marshall: Because I’m telling you I’m not going to do it.

Mr. Jonathan Shapiro: We’re suggesting that this was a sufficient showing to at least require the judge to ask whether the juror might have been prejudice because of this.

Justice Thurgood Marshall: Well wouldn’t the judge first have to ask the question as to whether there were papers with articles which the juror could have read.

Mr. Jonathan Shapiro: I think that he had been presented with articles which the jurors could have read.

But we think even more significant on the extrajudicial publicity is the fact that the chief prosecution witness had testified extensively on a local television program several days before the trial.

Justice Thurgood Marshall: Where is that in the record?

Mr. Jonathan Shapiro: Well this is again on page 36 proposed question number 4 which --

Justice Thurgood Marshall: That proposed question has proved that this man tells to appeal on the program?

Mr. Jonathan Shapiro: We think that that sufficient showing that there was in fact such a television program and that the chief witness did in fact testify.

Of courts, the judge refused to ask the question without any determination as to whether in fact there had been such a television program or not.

And we think that the way you -- in case comes up it’s implicit that he assumed that there was a program and in fact he said that the question was irrelevant.

Chief Justice Warren E. Burger: Maybe he thought it was irrelevant because after reading the newspaper articles he thought they were so innocuous so vague that that rendered the whole inquiry irrelevant.

Mr. Jonathan Shapiro: Well, of course the newspaper articles didn’t relate to this television program and we think again that it must be remembered that this motion was -- and his questions were posed the day after petitioner was indicted.

Counsel had no opportunity to prepare a form of motion to collect the newspaper clippings to make a full presentation as to the extent of possible publicity.

He was forced to go to trial over his objection on the very next day after the indictment was returned and we think especially in light of that unseemly haste that it was more than necessary to have the jurors examine with respect to the issues he raised.

Chief Justice Warren E. Burger: Well I understand that the page 12 that he did hand the judge clippings, the clippings he was referring to.

Mr. Jonathan Shapiro: I think it’s -- it can be assumed that --

Chief Justice Warren E. Burger: They just aren’t here though.

Mr. Jonathan Shapiro: They are not here and I think that they were not the only clippings.

Well, of course I can’t state that as a fact.

The fact to the matter is counsel wasn’t prepared to go to trial in the day after indictment.

He hadn’t been able to prepare a motion which could have set forth.

All of the clippings, all of the parameters of the publicity and especially in light of that, we think that it was more than usually necessary to explore the potential for prejudice on the members of the jury.

Justice Potter Stewart: Of course Mr. Shapiro, of the four questions that the judge refused to ask, only one of them had to deal with pretrial publicity.

The other three had nothing whatsoever to do at pretrial.

Mr. Jonathan Shapiro: That’s right.

The fourth question which of course --

Justice Potter Stewart: So that if you are right about the first three, another pretrial publicity doesn’t really -- isn’t dispositive at all in this case.

Mr. Jonathan Shapiro: That is correct.

Justice Potter Stewart: Right.

Chief Justice Warren E. Burger: Thank you Mr. Shapiro.

Thank you Mr. Quinn.

The case is submitted.