MURPHY v. FLORIDA

Print this transcript Transcript: 

Argument of Harvey S. Swickle

Chief Justice Warren E. Burger: We'll hear argument next in 74-56 -- 5116, Murphy against Florida.

Mr. Swickle, you may proceed I think whenever you're ready.

Mr. Harvey S. Swickle: Mr. Chief Justice, may it please the Court.

There are two issues that are presented here for this Court's consideration today, both dealing with pretrial publicity in a criminal matter.

First question that is presented is whether the jury's knowledge to the news media of a defendant's prior convictions is so inherently prejudicial that the jury should be excused for cause or a change of venue granted, notwithstanding those juror's assurances of impartiality.

The second question which this Court has to deal with is whether the totality of circumstances in this particular case warranted a change of venue on behalf of the defendant in the state court.

The pertinent facts with regards to this issue are as follows.

On January 8, 1968 the defendant was arrested for the commission of an armed robbery in Dade County, Miami Beach, Florida.

During the pretrial proceedings of that case he filed a motion for change of venue as well as a plea of not guilty and plea of not guilty by reason of insanity.

While this particular case was pending in that case number and that first case was 68530, the defendant was indicted in the Broward County which is a northern county directly north of Dade County and charged with a crime of first degree murder.

Those cases gained notoriety in the news in Dade and Broward County and known as the Whiskey Creek murder cases.

After that case, he was also indicted in a federal court with regards to transportation of stolen securities arising out of the Whiskey Creek murder case.

So at one time or another, there were three prosecutions pending against Mr. Murphy.

In Dade County, Judge Steadman, after a lengthy hearing found the defendant incompetent to stand trial.

The defendant was then committed to South Florida State Hospital.

Mr. Gerstein, the state attorney then now pros that case.

I think its important to point out here that at the time of the insanity ruling there was a tremendous outcry all the way up to the Governor’s mansion and Governor Clark ordered an investigation into the insanity ruling that Mr. Sherman who was a state senator at the time and who is now the Attorney General in the State of Florida, initiated an investigation of Judge Steadman with regards to this particular incident, all while legal proceedings were still pending.

In March 1, 1969, the defendant was found guilty of the murder case subsequent to the now prosing of the Dade County case, Mr. Murphy was transferred to Broward County, there were legal proceedings for almost a year and on March 1, he was found guilty of first degree murder.

Justice William H. Rehnquist: At Fort Lauderdale?

Mr. Harvey S. Swickle: That would be Fort Lauderdale, yes sir.

Justice William H. Rehnquist: Is Fort Lauderdale -- does Fort Lauderdale have a large newspaper of its own or does it tend to rely on the Miami newspaper?

Mr. Harvey S. Swickle: There is several newspapers in Fort Lauderdale.

The Fort Lauderdale News would be the biggest.

The substantial amount of publicity however was from the Miami Herald and the Fort Lauderdale News.

The record in this case will show articles from both of those newspapers as well as from the lesser newspapers.

However, the Miami Herald is a prevalent newspaper in Fort Lauderdale and Broward County and in throughout the state in some instances.

Justice William H. Rehnquist: Does it -- does it had state wide circulation?

Mr. Harvey S. Swickle: Yes sir, to a degree -- to a lesser degree than in the Southern Counties.

Five months after the defendant was convicted on the first degree case, Mr. Gerstein reinstituted the Wofford robbery case under a new case Number 69-7464.

In December 1969 prior to the trial which was almost a year prior to the trial of the Wofford case, Mr. Murphy then entered a plea in the Federal case before Judge Eaton in Miami.

Prior to the trial in the Wofford -- the second Wofford robbery information, the defendant --

Justice Potter Stewart: The same robbery?

Mr. Harvey S. Swickle: Same robbery case, new information.

Justice Potter Stewart: And he'd been earlier held to be incompetent to defend?

Mr. Harvey S. Swickle: That is correct sir.

Justice Potter Stewart: And then the -- did that ruling get reversed somewhere along the line?

Mr. Harvey S. Swickle: Somewhere along the way.

What had happen was, when we got down to the trial proceedings, the record will show that the judge went into the jury selection, selected the jury panel, but did not impanel the jury.

Then held a hearing dealing with the competency of the defendant, and then found the defendant competent to stand trial, then impaneled the jury and then proceeded with the trial.

Justice Potter Stewart: And this was a different judge from the judge who'd earlier found him incompetent?

Mr. Harvey S. Swickle: No sir.

Justice Potter Stewart: Same judge?

Mr. Harvey S. Swickle: This is the same judge, Judge Colin Steadman was the same judge throughout that period of time.

The judge reserved his ruling on the motion to change of venue until he had an opportunity to examine each of the jurors.

The jurors were examined individually as opposed to collectively.

Of a total of approximately 78 jurors, the record will show that 20 of these jurors were excused for cause.

The defendant exhausted his preemptory challenges and had requested of the Court additional peremptory challenges which were denied.

In each instance the defendant moved to excuse each juror individually and that motion -- many of those motions were denied with the particular reference to the six jurors and the two alternates which eventually did serve.

To summarize very briefly, the knowledge of these jurors, all of the jurors either knew of the defendant’s conviction for first degree murder in Broward County or for his somewhat infamous theft of the Star of India, The Long Ruby in New York several years prior.

Justice Potter Stewart: Now, the theft or the alleged theft of the Star of India jewel from New York had occurred good many years before the --

Mr. Harvey S. Swickle: I believe either four or five years prior to the trial.

Justice Potter Stewart: Back in 1964 maybe?

Mr. Harvey S. Swickle: That is correct.

Justice Potter Stewart: And the murder conviction had occurred how long before the --

Mr. Harvey S. Swickle: 17 months prior to the trial of this case.

Justice Potter Stewart: 17 months earlier?

Mr. Harvey S. Swickle: He was convicted, yes sir.

Justice Potter Stewart: 17 months.

Mr. Harvey S. Swickle: That's correct.

Justice William H. Rehnquist: Mr. Swickle, I notice in Judge Atkins opinion, the district judge in denying habeas corpus at page 40 of the appendix said, “prior to his involvement of the crime which is the subject of this petition, Murphy had focused nationwide attention on himself for his role in the 1964 theft at the Star of India Sapphire.”

Do you think it makes any difference in a case like this whether the publicity coming to a defendant about a prior conviction is involuntary on his part or whether he's generated it himself?

Mr. Harvey S. Swickle: I think it would make a difference.

Now, when we say that Mr. Murphy brought it upon himself, he brought on himself not that he went out and spoke to reporters.

What Judge Atkins meant there was that he was arrested, he was convicted and it was a result of publicity arising out of that case.

He didn't go out and seek the publicity just as he didn't go out and seek the publicity in the murder case.

It accompanied him because of the fact that he had been arrested and because of the nature of the theft.

Justice William H. Rehnquist: That one -- one reading you can give to Judge Atkins’ finding, it certainly isn't the only --

Mr. Harvey S. Swickle: Well, except that there is nothing in the record, if Your Honor please, to support any other determination.

There is nothing in the record to show that in any of the proceedings, Mr. Murphy went out and solicited advertisements or solicited news articles about himself.

There is nothing in the record to support that position.

There is evidence in the record to support the position that we take that the news followed the crime and was done as a matter of news reporting as opposed to Mr. Murphy going out and soliciting magazines and type of thing.

There --

Justice Thurgood Marshall: He did get the name Murph the Surf from himself, didn't he?

Mr. Harvey S. Swickle: The name Murph the Surf originally came from the fact that he was to Surfer on Miami beach and did shows.

Justice Thurgood Marshall: He liked that name, didn't he?

Mr. Harvey S. Swickle: Oh!

Yes sir, he likes the name.

Justice Thurgood Marshall: Well, that's the name that got him with the Star of India?

Mr. Harvey S. Swickle: Yes sir.

Justice Thurgood Marshall: So he had a little bit to do with it himself?

Mr. Harvey S. Swickle: Well, this is the name that was attributed to him, he didn't publish his name as Murph the Surf.

Justice Thurgood Marshall: I suppose that he enjoyed it?

Mr. Harvey S. Swickle: Oh, I won't dispute the fact that there was recognition to some degree.

Justice Thurgood Marshall: [Voice Overlap]

Mr. Harvey S. Swickle: But I don't feel that with regards to that recognition, it's something he went out and solicited with regards to the Star of India.

I point out to the Court that this question came up in the trial court with regards to whether Mr. Murphy could get a fair trial in any other county in the State of Florida and was pointed out to the judge that three months prior to the trial of this case, the co-defendants who were set for trial before Judge Eaton in the federal -- in the state transportation of stolen securities case, Judge Eaton entered an order of removal.

They went up to Pensacola, selected a jury in one day and concluded the case and I believe in a day-and-a-half.

Now we brought this to the attention of the court, indicating that although the publicity was extremely extensive in Dade County and in Broward County, you could go to other counties in the state and obtain a fair trial as was done in the federal case.

Justice William H. Rehnquist: In spite of the statewide circulation of the Miami Herald?

Mr. Harvey S. Swickle: Yes sir, yes sir.

Jury selection in the federal cases as was pointed out at the time of the trial, took less than a day and the case was concluded in I think two or three days, the actual trial.

Justice William J. Brennan: May I ask you this question?

The essence of the argument really that Marshall ought to be considered as a constitutional ruling applicable to the states which I gather the Court of Appeals in disagreement with the Third Circuit said it would not.

Mr. Harvey S. Swickle: Yes sir, it is.

Justice William J. Brennan: Is that what the whole case is all about?

Mr. Harvey S. Swickle: That's the crux of the case, yes sir.

My position on this is simply if one -- when you look at the case law, Marshall actually was the first case that departed from the old ruling both in the federal and the state courts --

Justice William J. Brennan: The question Marshall is previous supervisor?

Mr. Harvey S. Swickle: That's correct.

Justice William J. Brennan: It said so in --

Mr. Harvey S. Swickle: Yes sir, yes sir and it's been ruled upon it.

There seems to be some conflict between the Circuits, the Third Circuit and the Ninth.

Justice William J. Brennan: Is that the same conflict because of -- that's the one Sheppard and --

Mr. Harvey S. Swickle: That's right.

Because of the --

Justice William J. Brennan: Irvin and Dowd?

Mr. Harvey S. Swickle: -- interpretation of Sheppard and Irvin versus Dowd.

Justice William J. Brennan: That we had made it, Marshall constitution?

Mr. Harvey S. Swickle: That's correct, that's correct.

Justice William J. Brennan: [Inaudible]

Mr. Harvey S. Swickle: That's correct and I would point out additionally that and -- we did argue this in the brief with regards to the Duncan versus Louisiana.

That case which was just -- was prior to Murphy was a ruling where in this Court held that the Sixth Amendment of the United States Constitution entitles each and every individual in the state court actions to jury trials in certain cases.

This would be one of those cases.

My argument there would that Murphy is a subsequent to Duncan and that we feel that the Sixth Amendment on the Duncan now being applicable to the state, the decisions under the Sixth Amendment which Marshall was, Marshall ruled in a supervisory capacity that the defendant in that federal case was denied as Sixth Amendment right.

Justice William J. Brennan: Supervisors are very, very difficult in the constitution?

Mr. Harvey S. Swickle: Yes sir, I'm aware of that.

Justice William J. Brennan: But Marshall was not a Sixth Amendment case?

Mr. Harvey S. Swickle: Well, Marshall ruled --

Justice William J. Brennan: Marshall ruled under supervisor --

Mr. Harvey S. Swickle: That's correct, and ruled that the defendant's right to a fair trial as guaranteed to a federal prisoner under the Sixth Amendment was violated because of what came before the Court.

Now, I'm not saying that that decision made it applicable to the states, it didn't.

But when you read Duncan and you read Sheppard and you read all of the other cases that have come down, this is what has been inferred and this is what I what I feel.

There can be nothing of a collateral nature more prejudicial to a defendant other than the facts of the particular case he's involved in.

There can be nothing of a more collateral nature which would be prejudicial to him --

Justice William J. Brennan: So I gather that you now argue is we should accept the Third Circuit's analysis in Duncan?

Mr. Harvey S. Swickle: That's correct, that is correct.

I think it's substantiated by the subsequent decisions -- the prior decisions of the Court.

I would to like, if it please the Court, to argue some of the points that counsel has raised in his brief at this point since we heard the crux of the matter so to speak.

Counsel of course takes the contrary position with regards to state -- the decision cited in his brief with regards to the Ninth Circuit case saying that the Marshall was not applicable because of its supervisory power.

But I think what we have to do is notwithstanding that, we still have to look to what was these juries have before them.

To determine even if we don't hold Marshall to be a constitutional question, we still have to look and see if the totally of circumstances in this case require a reversal and I think when you look at what was said by counsel with regard --

Chief Justice Warren E. Burger: You mean constitutional reversal?

Mr. Harvey S. Swickle: Yes sir.

Chief Justice Warren E. Burger: By a totality?

Mr. Harvey S. Swickle: Totality of circumstances, yes sir.

A separate and apart from the Marshall ruling itself.

This is what we're talking about, we're talking about point two.

Now, counsel went to a great lengths in his brief to review of the jurors statements.

He went to a great extent to say how the jurors notwithstanding their knowledge of Murphy's conviction and notwithstanding their knowledge of the murder and notwithstanding what they had read in the paper over the period of time that they still have these impartial -- could form an impartial verdict in this particular case.

But I think you have to look to the statements of the jurors and just very briefly, the first two jurors who were selected in this particular case, Mrs. Asher and Mr. Collins.

Now, I'm going to the motive and I'm going to the nature of the testimony.

Each of them assured the Court that they could rule on this matter in an impartial manner and that the statements were true and correct because they were under oath, but I would point out just very briefly that four perspective jurors who came before and who came after these particular jurors had statements somewhat contrary to what these jurors had stated.

Mrs. Asher stated at page 101 of the appendix that she heard some persons discussing this case in the jury room and that’s another point I would like to bring out.

This is the first case that I have been able to find in all of the cases that I have read where the judge took absolutely no precautions during the jury selection.

News articles were permitted into the jury room.

News articles which branded the defendant as a hoodlum, as a convicted felon, as a convicted murderer.

Each of the jurors testified that they were permitted to read these articles, that they were permitted to discuss this case amongst themselves and we see some of the comments of some of the jurors who said, “what was the consensus of the opinion of the jury?”

The consensus of opinion was hang him he's no good.

Now, this is discussion --

Justice William H. Rehnquist: Did you -- did you raise this point in your Florida proceedings?

Mr. Harvey S. Swickle: Yes sir.

Justice William H. Rehnquist: And in your request for habeas corpus?

Mr. Harvey S. Swickle: Yes sir.

All of these points were raised in the trial court and in the habeas petition and before the Fifth Circuit Court of Appeals.

We have Judge Steadman who back in July of 1968 entered an order transferring the co-defendants, a removal, a change of venue on the co-defendants because the judge citing Sheppard said, “I did not take the necessary precautions to protect the interests of these defendants.

He comes to 1971, these two -- when Mr. Murphy goes on trial and Mr. Murphy now has assumed a substantial portion of the publicity and he does -- he continues to do nothing to protect this defendant.

He allows the jury to which is I have yet to find a case, allows this jury to openly discuss this case and each juror was asked, were you given any cautionary instructions not to discuss this case?

Were you reading news article in the jury room?

Yes we were and in fact counsel attempts to distinguish the Marshall case by saying, “in Marshall, the news articles came before the jury, when the case was in progress.

In this case, if -- when you check the appendix and you check the jurors' questioning, three of the jurors, as amazing as it may sound, but three of the jurors actually did not know that Mr. Murphy was a convicted felon until they got into the jury room.

When they got into the jury room and they discussed the case with the other jurors and had read the news articles, then they become aware that Mr. Murphy was a convicted felon for the first time and those witnesses I might add, two of which actually sat on the case in chief in this particular matter.

Now, getting back to the point of the juror's actual --

Justice William H. Rehnquist: Well they can -- have been dismissed for a cause those three I take it since they didn't -- the time they were challenged for cause they didn't know?

Mr. Harvey S. Swickle: No, at the time they were challenged of cause they didn't know.

While they were waiting in the jury room to come out to be questioned --

Justice William H. Rehnquist: Well, you're not -- you're not talking about the deliberation, you're talking about the place where the jury waits to be chosen?

Mr. Harvey S. Swickle: Yes.

There's a room where the jurors wait.

There was a 100, 110 jurors in that room, in a small room and they were openly discussing this case, and Mr. Murphy's convictions.

Justice William J. Brennan: Well, isn't known to you we haven't said, we first learned about this --

Mr. Harvey S. Swickle: Yap.

Justice William J. Brennan: -- to the other members of the panel --

Mr. Harvey S. Swickle: Yes Your Honor.

Justice William J. Brennan: -- is that it?

Mr. Harvey S. Swickle: That is correct.

It is in the record.

Justice William J. Brennan: And were they challenged for cause?

Mr. Harvey S. Swickle: All the jurors were challenged for cause, each and every juror.

Justice Potter Stewart: Mr. Swickle, would you tell me which of the names appearing in the index and whose voir dire and colloquy appears in the appendix, which of those actually served, there were six regular jurors and --

Mr. Harvey S. Swickle: Yes, if Your Honor please, the jurors --

Justice Potter Stewart: -- and two alternates?

Mr. Harvey S. Swickle: The jurors that actually served, I'll give you the names and their page numbers.

Justice William J. Brennan: Page roman two.

Justice Potter Stewart: Yes, page roman two of the index.

Mr. Harvey S. Swickle: Patricia Asher whose testimony appears on page 100.

Justice Potter Stewart: She -- she served?

Mr. Harvey S. Swickle: She was the first juror.

The second juror was James Collins, he appears on page 118 of the appendix.

The third juror was David Edvabsky, --

Justice Potter Stewart: What page?

Mr. Harvey S. Swickle: He appears on page 137.

Justice Potter Stewart: David Edvabsky, yes.

Mr. Harvey S. Swickle: William Essert, page 142.

Louis Scagans, page 146.

Daniel Ferguson, page 158.

The alternates were --

Justice Potter Stewart: Those are the six regulars?

Mr. Harvey S. Swickle: Those are the six regulars.

Justice Potter Stewart: Right.

Mr. Harvey S. Swickle: The two alternates were Mary Jay Kane, 175, and Jack Etridge, page 183.

Unknown Speaker: [Inaudible]

Mr. Harvey S. Swickle: Now, I'm just giving -- I'm just giving to the Court question.

Justice Potter Stewart: Mary Jay Kane and Jack Etridge were the alternates?

Mr. Harvey S. Swickle: That's correct.

Justice Potter Stewart: They did not in fact serve --

Mr. Harvey S. Swickle: They did not sit.

In fact the last juror, I think probably summed up the total circumstances in the jury room, the last juror who was selected, I mean the last regular juror was Mr. Ferguson, that's correct, when he said, when Mr. Naigley was asking the questions about discussion in the jury room and he said it made him sick to his stomach as to what he had heard in the jury room.

That the jurors were saying hang him he is guilty.

Now, this is Mr. Etridge who is the last regular juror who notwithstanding hearing all this was able to say on an impartial basis that he could render affair and impartial verdict in this case.

Justice Byron R. White: You wouldn't suggest this decision is erroneous under Irvin and Dowd?

Mr. Harvey S. Swickle: I am sorry judge?

Justice Byron R. White: Would you suggest that this decision is erroneous under Irvin against Dowd?

Mr. Harvey S. Swickle: I believe -- yes it is.

It is because --

Justice Byron R. White: Do you mean you don't need Marshall at all?

Mr. Harvey S. Swickle: I don't need Marshall on the totality issue because I feel that what occurred in the jury room with -- and with what the jurors knew of the defendant, I don't feel that the defendant has to show actual prejudice.I think that is inherent prejudicial here.

Justice Byron R. White: But if you have Marshall to help you out --

Mr. Harvey S. Swickle: If we have Marshall, we never have to reach the second question.

If Your Honor please, I've reserved 10 minutes of my time so at this time I will conclude my argument.

Thank you.

Chief Justice Warren E. Burger: Mr. Rogers.

Argument of William L. Rogers

Mr. William L. Rogers: Mr. Chief Justice and may it please the Court.

The issue presented by this case as has been stated by counsel for the petitioner is essentially whether a state defendant's trial by a jury is rendered essentially unfair and therefore violative of due process when members of that jury have some knowledge of the defendant's prior criminal background and knowledge of some the facts of this case.

And the petitioner asserts this error at the level of constitutional violation on the basis that there was failure to excuse these jurors of cause and in the alternative that his motions for a change in venue were denied.

We submit that these issues were properly decided by the two federal courts below and that their reasoning should be dispositive of this case.

I would submit that the reasons therefore are rather extensive and there is no precedent that either of the lower federal courts had for requiring disqualification of a state juror because he had knowledge of the defendant's criminal past.

It would require the elevation of this Court's holding in Marshall, not only to Sixth Amendment standards, but also require that that be then enforced against the state as an aspect of due process.

No Court has expressly gone so far.

Secondly, we would submit that on the question of a change in venue, the petitioner did in fact receive a fundamentally fair trial in the venue in which the crime occurred and that was Dade County, Florida.

Now the jurors who actually served, the six who counsel mentioned just a few moments ago, met the Court’s -- this Court’s standards for determining the viability of these jurors in Irvin versus Dowd.

The standard is even set forth in Florida as a statute, Florida Statute 913 03, which requires that the Irvin v. Dowd standard be carried out in Florida trial courts.

Secondly, I would point out that the publicity to which the defendant was subjected was not the kind of publicity which the cases on which he relies in the point two were actually decided.

There is quite a disparity between the degree of prejudice which was found in those or I should say the type of facts on which those cases were based from which a determination that prejudice was inherent and the facts in this case.

Justice Thurgood Marshall: But have we ever had a change where the jurors while waiting for the trial all together had a trial all of their own?

Mr. William L. Rogers: Your Honor, I believe that that is not the case that this record shows.

Justice Thurgood Marshall: Well, he said that every -- every juror testified that they'd heard discussions in that room?

Mr. William L. Rogers: Your Honor, I would respectfully assert that there are qualifications to that and that it was not that every juror who is in the jury room was exposed to that.

In fact, as our brief points out that there was quite a discrepancy between the jurors who were examined which indicates that they were not all discussing the case.

Some of them flatly denied it.

Justice Thurgood Marshall: Right now, should you give me the name of one with -- one juror who didn't?

Mr. William L. Rogers: Yes Your Honor, Mrs. Essie Shawd (ph) was one juror who disagreed and Mrs. Patricia Asher also I would --

Justice Thurgood Marshall: That's two.

Mr. William L. Rogers: Mrs. Essie Shawd is at page 124 of the appendix.

Justice Thurgood Marshall: That's two.

Mr. William L. Rogers: Well, there was a discrepancy between them.

Not all of the jurors -- not all of the other jurors said they have been discussing the case.

Justice Thurgood Marshall: They've heard it?

Mr. William L. Rogers: No Your Honor, the jurors did not all -- were not all asked the same questions and therefore they did not all say that they had been discussing the case in the jury room.

Some of them said that they had heard discussions of the case.

One man who heard discussion to the --

Justice Thurgood Marshall: That's not normal in Florida, is it I hope?

Mr. William L. Rogers: That the jurors discussed the case before hand?

Justice Thurgood Marshall: Yeah.

Mr. William L. Rogers: No Your Honor.

This is because this was such an extensive voir dire that the jurors has so much idle time.

I would point out that these jurors were examined in camera.

They were examined individually rather than as a panel which is a normal procedure.

The reason --

Justice William J. Brennan: Did it come to -- you don't mean that all of the panel was not in Court?

You mean that each was called in --

Mr. William L. Rogers: Called in individually.

The jurors were called in one by one and they were examined separately on voir dire, which is the reason that there were so many jurors who are waiting and why the procedure took so much time.

Justice Potter Stewart: And not in public?

Mr. William L. Rogers: No, it was -- this was in a camera proceeding.

Justice Potter Stewart: In the Judge's chambers?

Mr. William L. Rogers: Ah, excuse me, as to the -- where the members of the public -- this was not a sealed proceeding but the judge did make sure that the perspective jurors did not have the opportunity to hear the answers of the jurors who went before them.

Justice Potter Stewart: But it was in the courtroom?

Mr. William L. Rogers: Yes Your Honor.

Justice Potter Stewart: And there were least spectators?

Mr. William L. Rogers: Yes Your Honor that's correct and I would point out that the procedure which the trial judge then used was to examine these jurors, and allow counsel to examine the jurors and then upon counsel reaching a tentative agreement as to whether a juror would be selected to serve, each tentative juror was personally instructed by the trial judge at length as to what his conduct should be while awaiting trial, as to what he should avoid reading, as to what influences he should avoid exposing himself to.

This was repeated for each juror and representative.

Examples of these instructions appear at page 928 of the original transcript, page 866 of the original transcript and can be found in fact after each of these jurors appeared and were selected as a tentative juror.

I would also point out that the publicity since this is deemed to be a totality of the circumstances issue on the second point that the publicity had been in effect at its hype year-and-a-half to three years prior to the trial.

In the period of six months proceeding, the trial of the cause that the publicity was found to be diminishing and that in fact there were very few articles which surrounded this trial, the lower court so found.

So as far as a totality of the circumstances test, there was no infection of the community as has been found to violate the requirements of this Court in Irvin versus Dowd, in Rideau versus Louisiana.

There was no inherent prejudice in the community thereby leaving no question whether prejudice must have infected the panel.

The Court exercised its voir dire ability to exclude those jurors from the panel who had any actual prejudice.

Justice Thurgood Marshall: [Inaudible]

Mr. William L. Rogers: The defendants used all the peremptories, yes Your Honor there’s no question about that.

Now, that is not to say that the trial judge refused challenges for cause but the standard which the judge used was the standard that this Court laid down in Irvin versus Dowd, a juror who could reasonably apply himself to the law and the facts and exclude any extraneous influences.

Justice Thurgood Marshall: The juror that said what I heard about this case made me vomit?

Mr. William L. Rogers: The full quotation is enlightening Your Honor, I don't have the passage before me.

Justice Thurgood Marshall: Oh sure.

Mr. William L. Rogers: But the reason that he said it was because he said that he had such a strong adherence to constitutional safeguards that this concept made him sick and it was on this basis that we submit that he had a very reasonable assurance that he gave to the trial judge that he would be in fact a qualified juror and would not consider any extraneous influences.

Regarding Edvabsky, I believe is his name Your Honor, I'll attempt that to summarize our position in this issue there are few more details which I would to go into if I may return to the first point.

And that is that it's most significant that the trial in this case involved a defendant who had drawn not only statewide, but nationwide attention to himself with some of his previous exploits, among these, the highly publicized star of India jewel theft from the New York Museum of Natural History.

After his release on this and prior to the rubbery in the instant case, there were two other highly significant crimes which he committed also in the state of Florida and each of this crimes drew intensive publicity at that time, but of course they were long prior to this trial.

The Miami Herald which was -- it is presented most broadly in the appendix to this case is the leading paper statewide.

In addition to other papers which appear in various regional parts of Florida, the Miami Herald does have a statewide circulation.

Now it would have been extremely difficult to find the panel of jurors anywhere within the state who as the result of the Star of India and publicity on the subsequent crimes would not have had some concept that this events had transpired.

In addition, the district on habeas corpus had no constitutional precedent by which he could decide that Marshall should be the test which should have been applied in the state courts.

Marshall would serve indeed as poor precedent in a case such as the one at bar.

The requirement that the states should be controlled by Marshall would impose a severe hardship in a situation of the notorious defendant who were then not be able to find, with the status I should say, would not be able to find a defendant for such a case probably anywhere in the state who had not known of a conviction for one of these prior crimes.

The extent of publicity have reached the point, let me point out here that there was even a movie made of some of these exploits so the district judge who was quite justified in finding that this was a notorious defendant --

Justice Harry A. Blackmun: Mr. Rogers, do you tie that in to the change of venue for the other co-defendants?

Mr. William L. Rogers: Yes Your Honor, I would point out two factors regarding that change of venue on a separate federal crime that is that one, the declaration that by this defendant that he was guilty and was a co defendant with the others would necessitate that the federal judge change the venue for that particular crime.

And secondly, the ease with which the co-defendants obtained the jury in Pensacola, a remote part of Florida, is easily explained by the fact that the co-defendants did not have anything like the notoriety that this defendant had.

So once we removed Mr. Murphy from the four defendants, then the other three defendants can quite easily get a jury as they have virtually no notoriety in further fame or reputation.

Mr. Murphy's name would not enter into a jury's consideration whether he could give any of the three co-defendant's a fair trial.

The requirement that the states be bound by the Marshall doctrine would place the state in a position quite different from the federal trial courts in that any federal trial court does have a jurisdiction over a federal crime and under rule 21, a federal defendant who is so put upon could succeed in getting his caused transferred to the most remote federal district court in this country.

The states would be hard pressed to have the same flexibility and indeed a defendant who would be known statewide for particular crimes within that state could very well find himself without a jury and there will be no possibility of affording the man a trial at all.

That is probably the strongest reason which we can assert that the more flexible Irvin v. Dowd standard is the one that is properly applied to the states, whereas, the Marshall requirement can continue as a viable standard for the federal judiciary.

It is just such a situation as this which prompts the distinctions between federal and state practice and the distinctions indeed which have been approved in Spencer versus Texas of there being -- the possibility of variations in practice between the state and federal courts.

If I may address the second point with my remaining time, we did not have the situation in Dade County which would qualify under any of the tests or any of the factual patterns in Rideau versus Louisiana, Estes versus Texas, or Irvin versus Dowd in which it was clear from the nature of the case, the size of the community, the intensity and the viciousness of the publicity which infected those small communities that it was clear that we could have presumed that any defendant brought -- that these defendants brought before any jury in that selected from a venire from that community could not receive a fair trial.

The concept that too many jurors, too many times had announced their prejudice in Irvin versus Dowd, would not find any parallel in the transcript in the instant case.

The jurors who actually served, gave quite viable and quite rational explanations of their impartiality and the passage of time was not the least of this.

Clearly although they had some knowledge prior to the time they entered the courtroom of the defendant’s background and the defendant's prior crimes, there's no doubt that the passage of time does dim these recollections.

What made matters worst as to some of these jurors was that the manner of examination on voir dire refreshed all of their recollections and indeed led some of the jurors into saying that I did not know that that was the fact until counsel mentioned it during voir dire.

So the passage of time certainly had been the recollection of these facts as far as many of these jurors were concerned. The size of the community in Dade County also removes it from the inherent prejudice category and places this judge as very reasonably having denied a motion of change of venue.

He did this after he observed the demeanor of all the witnesses on the stand.

He deferred ruling on this motion at the time it was made and declared that he would not rule on it until he had observed the panel.

So indeed, he did have every opportunity for filtering out any prejudice that may have been likened in the community and presents a record before this Court which represents a reasonable basis on which to say that the courts below are quite correct.

Now, we submit that affirmance is warranted on this cases because the petitioner was afforded a full measure of due process as that has been defined by this Court in Irvin versus Dowd.

Indeed, the Irvin versus Dowd standard has been adopted by at least 12 states which have had occasion to pass on the issue.

It would be quite surprising to most of the state courts if the Marshall standard were now deemed to be super imposed and required after what appear to have been settled precedent in the area.

Thank you.

Chief Justice Warren E. Burger: Do you have anything further Mr. Swickle?

Rebuttal of Harvey S. Swickle

Mr. Harvey S. Swickle: Yes Your Honor, just very briefly.

Mr. Justice Marshall, your concern with regards to the jurors who said that they had discussed this or heard discussions in the jury room was not I would say all the jurors, this was the point I was trying to bring out.

I would say 70 or 60% of the jurors who were actually questioned indicated that there were discussions.

What I wanted to point out is that it seemed that the jurors who sat on the jury panel were the ones who didn't hear any discussions and the ones that were excused for various reasons either for cause or for medical reasons or excused by the state or excused by the defendant, those jurors seem to have a different view of what transpired.

Now, I would just like to give you a quick rundown.

Patricia Asher who was the first juror who said she had heard one person discussing the case and then one person had formed an opinion.

The immediate two jurors after her, Frank Kell and Art Fleming, Mr. Kell said the majority of the perspective jurors had formed an opinion that the defendant was guilty, that's at page 108.

Mr. Fleming who came immediately after Mr. Kell said, the juror discussing the case stated put him away, throw away the key, there was a consensus of -- that was the consensus of the opinions.

The next juror who sat was Mr. Collins.

Mr. Collins who was able to sit and then impartially listen to this case said, “no one in the jury room had formed an opinion of this case.”

However, the jurors both before him and after him are referring to again Mr. Fleming and Mr. Pererro, Mr. Pererro says, “discussions about Murphy, there were discussions about his prior convictions and the jurors had formed an opinion of guilt.

Chief Justice Warren E. Burger: Do you -- are you suggesting that that's just to -- those concepts are not compatible?

Mr. Harvey S. Swickle: No, I am suggesting on the talking about motive and the jurors testimony, we seem to have a situation where the jurors, some of the jurors who sat in this case, who sat in the jury room for three days came out and said they heard no discussion of this case.

Chief Justice Warren E. Burger: Oh, it's a big room you say --

Mr. Harvey S. Swickle: No sir.

Chief Justice Warren E. Burger: A hundred people in it so it's got to be a fairly big room.

Mr. Harvey S. Swickle: The discussions of the -- from all of these jurors with anybody sitting in that room would have heard discussions regarding this case judge -- Your Honor and I say that -- I say that because unfortunately I was there so I know.

Now I would --

Chief Justice Warren E. Burger: Is it to show the size of the room since --

Mr. Harvey S. Swickle: No sir it doesn't, but the record --

Chief Justice Warren E. Burger: It can't be a very small room if it held a hundred jurors waiting to be called in?

Mr. Harvey S. Swickle: Well, it also point out that the record --

Justice William J. Brennan: Were you in that jury room?

Mr. Harvey S. Swickle: I -- no sir, I was there at the trial, now, I wasn't in the jury room.

I'd also point out judge -- if Your Honors please that --

Justice William J. Brennan: Incidentally, Murph the Surf's reputation was wide open?

Mr. Harvey S. Swickle: I'm sorry?

Justice William J. Brennan: Murph the Surf's reputation was was what, a glamor figure or --

Mr. Harvey S. Swickle: Originally, he was a surfer and he gained notoriety as a surfer, as a concert violinist and then the first criminal activity which the notoriety was gained was -- excuse me, the Star of India.

Justice William J. Brennan: Well, isn't that the one that became a motion picture or something?

Mr. Harvey S. Swickle: Eventually, yes.

Not until long after this, these proceedings were over.

Justice Byron R. White: One of the actual jurors [Inaudible]

Mr. Harvey S. Swickle: There were some jurors who said if you look at the --

Justice Byron R. White: Where's other people say [Inaudible]

Mr. Harvey S. Swickle: There were jurors who --

Justice Byron R. White: [Inaudible]

Mr. Harvey S. Swickle: If Your Honor please, the jurors when you and if you -- I'm sure Your Honors have read the appendix would indicate that some of these jurors when asked questions by Mr. Negle said, they would have trouble reaching a verdict in this without considering his prior convictions.

Yet, when questioned by the state and questioned by the Court --

Justice Byron R. White: [Inaudible] on this particular charge?

Mr. Harvey S. Swickle: On this particular charge, the only one who indicated something to that effect with Mrs. Scogens at page 149 and 150.

She said she would be influenced in her verdict by all the publicity but she had no fixed opinion.

Justice William J. Brennan: Well, they don't know what --

Mr. Harvey S. Swickle: No one said they had a fixed opinion.

Justice William J. Brennan: Well, none of those who actually sat on the jury included the one who you pointed out to us said hang him?

Mr. Harvey S. Swickle: Had a fixed opinion, none of them did.

None of them said they had a fixed opinion.

Justice William J. Brennan: Well now, is any of the -- one of the jurors who actually sat --

Mr. Harvey S. Swickle: Yes.

Justice William J. Brennan: -- and convicted him --

Mr. Harvey S. Swickle: Yes.

Justice William J. Brennan: -- include the person who said hang him before the trial?

Mr. Harvey S. Swickle: He is the one who said that the jurors had been discussing --

Justice William J. Brennan: Alright.

Mr. Harvey S. Swickle: -- and the discussion said --

Justice William J. Brennan: He didn't say it?

Mr. Harvey S. Swickle: No, he didn't say it.

That was the consensus of opinion of the jurors.

Thank you.

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.