Transcript

IN THE SUPREME COURT OF THE UNITED STATES

HUMBERTO ROSALES-LOPEZ, Petitioner, v. UNITED STATES, Respondent

No. 79-6624

January 12, 1981

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 11:10 o'clock a. m.

APPEARANCES:

JOHN J. CLEARY, ESQ., Federal Defenders of San Deigo, Inc., 225 Broadway, Suite 855, San Diego, California, 92101; on behalf of the Petitioner

GEORGE W. JONES, ESQ., Office of the Solicitor General, Department of Justice, Washington, D.C.; on behalf of the Respondent.

PROCEEDINGS

MR. CHIEF JUSTICE BURGER: We will hear arguments next in Lopez against the United States.

I think you may proceed whenever you are ready, Mr. Cleary.

ORAL ARGUMENT OF JOHN J. CLEARY, ESQ., ON BEHALF OF THE PETITIONER

MR. CLEARY: Mr. Chief Justice and may it please the Court:

There may have been some doubt about the standing of the previous case before the Court, but I can assure you that the case now before you is certainly worthy of your consideration; it has been a long time coming.

In federal criminal cases, voir dire is seriously sick if unfettered judicial discretion may preclude any inquiry as to racial prejudice. Before this Court is both a constitutional question, we would contend, under the Amendment, the right to an impartial jury in the language of course, of Ham and Ristaino. But more importantly is the supervisory power -- and I'm directing your attention, of course, to the opinion of Chief Justice Hughes in the Aldridge case.

Unfortunately, in federal courts there has been caught up this sense of expeditious resolve of voir dire. It has become sometimes perfunctory, some have called it -- commentators, even those working for the federal judicial center, calling it "routinized ritual". It is unfortunate, because it has strayed a long way from its original beginning. And of course, some of that must be laid to rest at the feet of counsel. The old days, and I think in this Court's opinion in Swain, there was reference to protracted voir dire that might exist in the state court system, but certainly not in the federal courts. My district, voir dire sometimes is 10 or 15 minutes; in the instant case it was 6. The role of counsel, even in submitting written questions, is squelched. The role of counsel as an advocate, even implementing the Sixth Amendment, effective assistance of counsel is a mere nullity.

And what counsel has seen, and I must admit, as a trial lawyer that there has been, unfortunately, didactic, argumentative, repetitive voir dire by attorneys so as to bring in the judge to direct and control the inquiry as to voir dire. We feel that Rule 24 clearly permits counsel, as an advocate, to participate. Rule 24, when designed, was -- permitted the defendant to inquire as to peers, as to any serious prejudice. And when you have a question as to racial prejudice and permit not one question on that issue, what is the impartial jury? Where did our American system go, about having one free of prejudice, the impartial jury.

I'd like to talk about first, the facts of this case. It's a little case but it's got a big issue, concerning federal criminal practice -- little case, is an individual by the name of Humberto Rosales-Lopez, who's charged with alien smuggling, one of about six or seven, unfortunately he exercised his right to trial by jury and had that right accorded to him and was sentenced to 18 months confinement followed by a 30-year suspended sentence.

QUESTION: You lost me there a minute, Mr. Cleary. You say, unfortunately he elected to trial by jury?

MR. CLEARY: Yes, Your Honor, because in this case, if you look at the disposition of the other defendants, particularly Virginia Bowling, who copped out and became the government witness against him, who owned and operated the drop house in southern California, she was given a misdemeanor with a recommended probation. And the other defendants in the case split up, the worst one did 90 days time, of all people, they didn't exercise the right to trial by jury. And I'm not saying, I'm not laying any blame anywhere, I'm just saying that those who didn't go to trial, no matter what their role in the enterprise was, max'd 90 days. A person who goes to trial by jury, 18 months followed by a 30 year suspended sentence. If there's a difference to be drawn there, I feel there is, others may not, but that's not the issue before the Court. The issue, though, is when a person asks for the trial by jury, what type of justice does he get? And I think, in this case, it was a Mexican who was charged with an offense involving aliens. The critical government witness was a Virginia Bowling, whose 19-year-old daughter, an admitted junkie or heroin addict, by her mother's definition, potentially involved in the same transaction involving this alien smuggling venture, was mentioned throughout in the trial.

Now the Petitioner, defendant in lower court, was her lover, quasi-husband, whatever; living with this woman. This woman was clearly Caucasian, and counsel, sensitive to this issue, wanted the question asked about voir dire. What was important in this case was the effort one has to go to get a question asked about racial prejudice. Now this Court is very sensitive --

QUESTION: Do I gather the practice in that Court is the Judge often asks all the questions of the panel?

MR. CLEARY: That is correct. But in this case, Your Honor, it's even worse; it's a question of how far you'd even have to go to ask questions --

QUESTION: No, but I mean -- counsel have to submit questions to the Judge, and he either agrees or --

MR. CLEARY: That is --

QUESTION: -- refuses to ask them?

MR. CLEARY: That is correct, Your Honor. That is the procedure under Rule 24. And as the Court knows, it is done in over 75 percent of the jurisdictions, probably more at the present time. The feeling is that the role of the lawyer is completely excluded on any type of voir dire, and I'm not here to suggest that you introduce them without limits, but I am suggesting that this Court today, in this case, do set some type of flexible guidelines to deal with federal criminal practice. And I can only emphasize that I'm not talking about state criminal practice.

This case, the aggravation exists in the record throughout. First, it was a written request for voir dire by counsel, and counsel, as a humble supplicant, said I don't want open-ended voir dire, I know how federal judges feel about voir dire. This is a federal case, move it up, move it out. And I just said, can I have 15 to 30 minutes, voir dire, just to kind of get in there one minute per juror -- denied. Written request. Would you ask the question, would you consider the race or Mexican descent of Humberto Rosales-Lopez in your evaluation of the case, how would it affect you? Not asked. You'd ask the judge, before voir dire, since this is a jury trial in federal court, we don't want to give them the feeling that it's supermarket justice, could you give a preliminary instruction about what their role is, what the jurors are going to do in their case? Denied. At side bar, after the judge asks, have you got any further questions, you step up to the side bar and the request is made. The trouble is, well I think the Court missed some; I asked for six questions and the question I said, in this case, I feel that inquiry should be made as to racial prejudice. I think the Court is compelled, this is my language, under Aldridge, a decision of this Court by Chief Justice Hughes, to ask the question.

QUESTION: Why? What does race have to do with this trial?

MR. CLEARY: Race have to do with this trial?

QUESTION: Yes sir.

MR. CLEARY: Your Honor, in this case, I think we have the defendant, who is Mexican, I think by his appearance it would be obvious. And that further, that the jurors in this case, would have before them, someone that they could have a bias. And that --

QUESTION: Half of the jurors were Mexican, weren't they?

MR. CLEARY: No, none of the jurors were Mexican or Mexican-American.

QUESTION: Are you sure?

MR. CLEARY: Positive.

QUESTION: How are you sure?

MR. CLEARY: Well because I included in my brief, their surnames of -- well, they might have had a -- on the non-named side, that is, --

QUESTION: I know a Mexican named McCarthy.

MR. CLEARY: Right. They might have been Mexican.

QUESTION: Oh sure.

MR. CLEARY: Your Honor is correct.

QUESTION: Sure. Why do you have to have race in this case?

MR. CLEARY: Your Honor, I can only state first, that when any defendant might be the object of racial prejudice -- the defendant himself, in a federal criminal case -- the issue may be asked. In a federal bank robbery case, -- I was representing a Caucasian defendant charged with bank robbery, and I asked the judge would you ask as to any racial prejudice or antagonism, it's my client. The judge looked down over his glasses --

QUESTION: What's that got to do with this case?

MR. CLEARY: Your Honor --

QUESTION: What's that got to do with this case?

MR. CLEARY: In this case, the defendant was Mexican. The jurors, who was his triers of fact, the ultimate arbiters of the facts, could have had a bias, they could have been bigoted against him in this particular case. Under this Court's analysis in Aldridge, there was a black defendant charged with the murder of a white policeman.

QUESTION: There you see race right there. One race murdered another race. But this Mexican, who did he -- what did he do to anybody else?

MR. CLEARY: Okay. His relationship was unfortunately with the woman, a Caucasian, who was using her White-Anglo status to transport the Latin-appearing individuals in the trunk of her vehicle. As the record indicates, she used that appearance, or she could escape detection by going through the San Clemente checkpoint. That status and that person was a critical witness in this case. Her credibility was an issue.

QUESTION: Did you argue that to the judge?

MR. CLEARY: I, in fact, at this time, I didn't know whether or not --

QUESTION: Did you argue that to the judge?

MR. CLEARY: I only said that -- I just --

QUESTION: What did you tell the judge was the reason that you wanted this charge?

MR. CLEARY: I felt that the Court, under federal law, should permit a question as to racial prejudice when it's raised by counsel.

QUESTION: Pro se, pro se?

MR. CLEARY: That is correct, Your Honor. And I cited all --

QUESTION: But you have nothing beyond that?

MR. CLEARY: Well Your Honor, the Court notes -- the Court didn't even permit me, the trial Court, to even finish the six questions that I had asked for and that -- my limited role, it is very difficult. Second of all, it's difficult for counsel to project all of the evidence in the case to the trial judge who might not be familiar with it. And I think that one of the concerns here, it's a very serious concern, is there are trial court judges might not be privvy to all the facts, terms or directions in which a case might go.

QUESTION: And it's your duty to see that he is acquainted with the facts, that's a part of your job.

MR. CLEARY: Yes, Your Honor. Your Honor is correct.

QUESTION: And here you didn't. You didn't give him all the facts.

MR. CLEARY: Your Honor, there are some times even trial lawyers know that you can't anticipate every move at trial. In this case --

QUESTION: One of these days I'm going to write an encyclopedia of 116 foot shelf of things that lawyers could have done that they thought of on their way home, after the hearing. You'll help me on that, won't you?

MR. CLEARY: Yes, Your Honor, I think I could probably --

QUESTION: That doesn't help me here, though, does it?

MR. CLEARY: No, I don't think it was it was pertinent here because the reason it wasn't, was that the daughter, Kim -- there was some question as to whether or not we were going to call her to testify. And as the record reflects in this case, I had subpoenaed Kim, the daughter, and that relationship of the daughter vis a vis my client, would be an issue. Further, I think that it was pertinent in this case that she didn't ultimately testify because the government then subpoenaed her, and it was a question of who was going to use who for what purpose.

I think, further, that when you have a Mexican defendant charged in an alien smuggling case, in a community in the proximity of the border, that those facts alone justify under Aldridge, an inquiry.

QUESTION: May I ask, Mr. Cleary, have we ever addressed the question whether discrimination against a Mexican is racial discrimination?

MR. CLEARY: Yes, Your Honor. It would be my feeling that the Courts decisions in, I believe it's the Texas case, the most recent one is Castaneda v. Partida, where the Court held that Mexican-Americans were a minority type of group.

QUESTION: Well minority, all right, but is the discrimination racial, that's what I mean, technically racial?

MR. CLEARY: Well the question is as to --

QUESTION: Of course, with Orientals, you have a different color than Caucasian, so are blacks. But are Mexicans?

MR. CLEARY: Well if I --

QUESTION: A different race?

MR. CLEARY: Well I think that even if a person were, say, a Mexican-American --

QUESTION: I don't suggest there may not--nevertheless, be the kind of discrimination you are arguing for, but is it a racial discrimination?

MR. CLEARY: Status as a Mexican is not. And for example, I could be a Mexican citizen. And whether or not a jury is prejudiced against me because of my Mexican status, is irrelevant, because whether the person is a citizen -- could it be a Mexican-American, sitting in the courtroom --

QUESTION: Well there might be discrimination against the discreet minority of Mexicans --my brother Marshall has been suggesting -- is that necessarily a racial discrimination? And I don't know that it is.

MR. CLEARY: Well I think that in the context of this case there was inquiry as to alienage and to an alien problem. But I think that that doesn't direct itself specifically to the point we're concerned with in this case, which is this antagonism.

To me, racism is an irrational belief in the superiority of one's own racial or ethnic classification so that, many times it will determine or turn on who the particular object -- for example, a member of a minority group could be prejudiced against a minority group under this definition, and shouldn't you be allowed to probe that in a federal criminal case. In the context of this case, where we had some glancing questions as to alienage, think of what could happen in the penumbra of such an inquiry? First, that could be directed towards the offense itself. We have the response of one juror, when asked about aliens, what did that bring up to her mind when asked about aliens. Well there's -- that's the name they used about persons who transport prisoners -- I mean, persons who transport the aliens. That concept right there, itself, tells us a little bit about what that meant. To that person it meant something to do with people who move human flesh, which is an odious concern. That was not the nature of my inquiry. The nature of my inquiry was as to his racial descent, or racial background, or descent. And in my voir dire question to avoid the problem raised by both Mr. Justice Marshall and Mr. Justice Brennan, I asked as to Mexican race or descent because of the possible ambiguity in this area.

QUESTION: Mr. Cleary, I suppose it's an unspoken premise of your entire argument that when you put a question about ethnic or other prejudice that the person to whom the question is addressed will immediately answer in good faith and fully and honestly?

MR. CLEARY: Yes, Your Honor. In fact, I believe that that is --

QUESTION: Do many people in the ordinary course of human experiences admit prejudices when they have them?

MR. CLEARY: My experience, it has been yes. And in the case of --

QUESTION: Yours is contrary to the human experience reported in all the authorities who have undertaken to write on the subject.

MR. CLEARY: Well Your Honor, the one difficulty with that area is that there is -- if you put it as a rhetorical, you know, would you be raising prejudice against the defendant sitting here? The answer of course, no one would say no. And as I pointed out in one of the social science studies that I presented with my brief, that you sometimes have to approach it very indirectly. In this case, I tried to phrase it, would you consider it in the evaluation of your case? And I think that when jurors are sworn, and what is voir dire, to speak the truth; that if, someone asks me, I might have to think a bit about the question, and then would respond. The question might come as to school integration, which might trigger a racial basis and what we're concerned with here is, what type of probing is necessary. And to me, to think that the courts would permit no question to be asked because the fear is that the person wouldn't be truthful, would undermine our whole judicial system.

QUESTION: Mr. Cleary, let me call your attention to the Appendix at page 18. You've referred to a couple of questions, that whereas by the district court, as glancing, and I take it, one of them is the Court's question towards the top of that page, -- let me again ask the general question, do any of you have any particular feelings one way or the other about aliens or could you sit as a fair and impartial juror if you are called upon to do so, in the back row. And then Juror Skelly responds, Christine Skelly, and I have mixed feelings about it. I don't think I could be impartial. I have a tendency to feel my own feelings, I don't think I could be a fair juror. And then the judge goes ahead and excuses her.

Don't you think the judge did enough here to alert the jurors to the type of case and to the problems that they might face along the line that you've outlined?

MR. CLEARY: I don't think so, Justice Rehnquist, and I think in this case if you look at -- what the question was asked to measure the response, it could have been aliens or the alien problems, it could have been the feeling about the immigration laws, how a person feels about it. It could be a feeling about the poor, about the poor looking for a better way of life when she says, my feelings which are undefined by the very nature of the question.

Third, I think that there's a question as to how do you feel about this individual sitting in this courtroom, specificity. Because rather than dealing with an abstraction there should have been some concrete direction or alerting of the jurors as to this possible bias.

QUESTION: Well didn't he have the defendant stand up?

MR. CLEARY: Yes, he did, he did have to stand. And I think that would only trigger the fact that his presence as being a Latin, or one of the -- could have been subject of racial bigotry, was even just presented in that fashion and I think further, what's really critical about this case, is that the perfunctory nature of the question and further, after the voir dire, where counsel specifically requests that the inquiry -- that it had to be made.

I think also to --

QUESTION: Of course your trial judge here, unfortunately, was from the District of Columbia, wasn't he?

MR. CLEARY: That is correct, Your Honor.

QUESTION: Are you making any point, however, that he did other than apply the current Ninth Circuit law?

MR. CLEARY: I think that, under the Ninth Circuit law, he could have followed it. However, I think that this Court's decision in Aldridge and the language in Ristaino v. Ross clearly set a different standard that would -- have, by my interpretation of it, set aside the Ninth Circuit precedent. And I think that the question that Your Honor raises as to alienage as distinguished from race or nationality, this Court and Mr. Justice Marshall, in Espinoza v. Farah Manufacturing, held that an employer who discriminated on the basis of alienage, that is to say, Mexicans, was not treading on the ground that I was trying to touch upon, that is, to say as to race or nationality, that there was a clear cut delineation in that area and that's what I was trying to assert here.

QUESTION: That was a statutory case, was it not?

MR. CLEARY: It was, but it was dealing with the terms we're dealing with here, and the bias of prejudice. The Congress gave protection as to bias as to race or nationality. It did not give protection as to alienage, and as to-- what I was trying to probe at was the protected area, that is to say, discrimination against race or ethnic or nationality classification.

QUESTION: Well, Mr. Cleary, was the basis of your concern that there exists in your community a bias against Mexicans, or is it a bias against Mexicans engaged in bringing in illegal aliens?

MR. CLEARY: No, my concern is not as to the offense, at all. My concern is do any of these prospective jurors have any type of bias against my client because of his Mexican race or descent?

QUESTION: Well that's what -- is there any -- are you suggesting that in the community generally there is a bias against Mexicans, that they are looked down upon as a minority, or something?

MR. CLEARY: I think the history and tradition of California is overwhelming in that respect, starting back from the California days to studies now in California history teachers -- they get a period of -- of rebuke --of the Mexicans within the culture, originally California was a part of Mexico.

QUESTION: It doesn't matter that the offense was importing the illegal aliens, it could have been any offense?

MR. CLEARY: It could have been any offense, but I think that it brings out the racial characteristic, because you're going to have other individuals involved in it, and again, the fact, the exploitation of people who themselves might be Mexicans, might be another aggravating factor that would be considered.

I would like to point out that the relief sought here is no more than a simple standard that Aldridge be complied with, that there the thought that -- and again, the language of Chief Justice Hughes that someone who might have a bias beyond the jury, the trier of fact, cannot allow this Court to stand. Further, in Peters v. Kiff, you have a long line of the cases where a white defendant was allowed to assert the fact that members of the -- blacks were not included in a prospective panel.

The Court held that --

QUESTION: Mr. Cleary, would your rule apply to a Mexican-American charged with murdering a Mexican-American?

MR. CLEARY: Yes, Your Honor, it would.

QUESTION: I thought so.

QUESTION: I thought your primary or first argument, is that a trial judge is obligated to ask this question of a prospective juror whenever defense counsel requests that he ask the question?

MR. CLEARY: Right. That was my --

QUESTION: Regardless of what may be a court as a Sunday morning quarterback would see as a possibility of racial prejudice in a particular case, either by the reason of the charge in the case or the race of the defendant. I mean possibly the defendant might be a Caucasian. And the offense might be a bank robbery, of a white owned and operated bank. Nonetheless, if you have -- I thought your initial submission was that if defense counsel asks that this question be asked to the jury that it must be asked?

MR. CLEARY: That is my submission. Your Honor, and the point I --

QUESTION: Provided the defendant is a Mexican?

QUESTION: No, no.

MR. CLEARY: No. No, what I'm trying to say, Justice Stewart, you hit the nail on the head. My position, basically, is that race can go any direction, not just against minorities --

QUESTION: By a whole Negro jury, who are just prejudiced against Whiteys?

MR. CLEARY: Precisely. And the answer is --

QUESTION: And the all Negro jury opposed against Negroes?

MR. CLEARY: There --

QUESTION: You could have that.

MR. CLEARY: Well I think that a person --

QUESTION: Is there any way -- is there any end to this?

QUESTION: No, no. No end at all.

MR. CLEARY: Your Honor, I think that when you deal with racial prejudice, we're dealing with such a touchy and very sensitive area, that if counsel who hopefully are not incompetent, seriously want the inquiry made, for the Court to deny it, I think, would be improper.

QUESTION: Well what about religion?

MR. CLEARY: That's not before the Court. The religious issue might be -- either way, is how the Court would construe Connors, it didn't allow political inquiry. Religion may, in the terms of the particular case, be appropriate, but what I'm suggesting basically, is the race.

I would like to reserve --

QUESTION: Mr. Cleary, before you sit down, let me be sure I understand -- I may not have caught the full thrust of your argument. Suppose this trial was in Alaska or Maine, and there aren't any -- haven't been any Mexicans in the state for 100 years, and the crime has nothing to do with Mexicans, you mean to say the trial judge had the duty to ask a question about prejudice against Mexicans?

QUESTION: If requested by the defendant?

MR. CLEARY: There is no --

QUESTION: Suppose he has to ask A) Mexicans, b) Negroes, c) Catholics, d) what -- made a list of 100. Would he have to ask them all?

MR. CLEARY: No, in fact, I think what is the purpose is, one, it shouldn't be sua sponte. Two, it must be upon the request of counsel --

QUESTION: I understand. But I'm having counsel ask, he doesn't know, maybe the -- man has a great uncle who was French, he wants to know is there any prejudice for or against French?

MR. CLEARY: I think it has to be in the context of the particular case.

QUESTION: It has to be one of the defendants.

QUESTION: But that's different now.

MR. CLEARY: No, I'm saying only as to the defendant, but as to any particular case. Meaning, I'm not saying, if he comes in and asks prejudice about blacks, whatever, I think that as to anything, any hostility of the prospective jurors towards the racial or ethnic classification of any particular defendant, any particular defendant, not just Mexican defendants.

QUESTION: Well I understand, but need not -- you're not even arguing that the defendant in the case in which the request is made has to be of the racial or national origin to which the question pertains?

MR. CLEARY: No. No, I think you have to ask -- I could not ask if -- in my case, are you prejudiced against blacks, because my client was Mexican.

QUESTION: Exactly.

MR. CLEARY: My question was, precisely only antagonisms as towards Mexicans.

QUESTION: Well all right. But then, I didn't understand your answer I guess.

QUESTION: Well but what about witnesses? I mean, if you have a white client but plan to call a Mexican witness and a black witness, or -- and an Armenian witness and a Swedish witness and a Finnish witness, presumably you virtually need a textbook on anthropology in order to conduct voir dire.

MR. CLEARY: The witness would not be on trial.

QUESTION: Well, the witness may not be on trial, but the fact that the jury were prejudiced against the testimony of the witness might seriously impair the fairness of the trial.

MR. CLEARY: That is a possible thing, but we're dealing with the unfettered --

QUESTION: Mr. Cleary, suppose the defendant is a blond, blue-eyed Mexican or Negro. Would you have to give it then?

MR. CLEARY: I think in that particular case you'd have to give both, the --

QUESTION: You'd have to --

MR. CLEARY: The antagonism towards -- three, Mexican, black or a group of a group of --

QUESTION: Bear in mind now, I'm going to -- well, I wanted to warn you that I was going to ask you why.

MR. CLEARY: The answer, I think, in that case is that I think a person who might have those exhibits might trigger off some hostility, which it could be -- sensitively inquiry --

QUESTION: Trigger hostility, they wouldn't even know he was a Negro.

MR. CLEARY: Well, I think that counsel has to make an informed judgment; if he thought the individual might be acceptable and the --

QUESTION: So counsel is going to run the government?

MR. CLEARY: No, I --

QUESTION: Whenever counsel makes up his mind that-- this is your position, is it not -- that whenever counsel makes up his mind, that that charge is necessary, the judge must give it. Isn't that where you end up?

MR. CLEARY: In the inquiry as to racial prejudice that is correct, Your Honor.

QUESTION: I have one other question, if I may. Now, this is -- how, this follows up with what Justice Brennan asked you, how significant is -- in your argument, is the factor of race? Supposing you had a student who was shown to be an Iranian, and -- an Iranian citizen, would you, under your argument, be entitled to ask the jury if -- could they give a fair trial to an Iranian student?

MR. CLEARY: Excuse me. The question as to student status might not be pertinent, but to being Iranian, I think that that would be correct.

QUESTION: So that the racial aspect is not critical Rather, it's some characteristic of the defendant that you think might give rise to some prejudicial reaction?

MR. CLEARY: Race is a difficult term to define, but it usually includes not only physical characteristics, but certain ethnic delineations that have certain physical characteristics with it. And so, it has the physical characteristics -- in my case, brown skin, a certain appearance, dark hair -- that then, the inquiry must be made.

But I think maybe between certain European stock, as to whether such -- that might depend upon the circumstances. I think --

QUESTION: Why would that be different? I mean, if you have neighborhoods in big cities where there are prejudices -- the German neighborhood right across the street from a neighborhood of -- say, a Polish neighborhood, why wouldn't you have the same right there?

MR. CLEARY: Because I think, and again, I'm not trying to get into anthropology, I think the classifications would not define all of those -- I don't think you could call -- say, Germans, and French different races.

QUESTION: Well but what difference does it make whether -- why is race significant to your argument at all? I think the -- I thought the touchstone would be potential prejudice?

MR. CLEARY: Well I think --

QUESTION: If you've got a group of people who may be the object of prejudice within a community, why does it make any difference whether they are black or Iranian, I just don't understand?

MR. CLEARY: Mr. Justice Stevens, you are correct. However, given the context of this case, I would like to reach that position. But as a minimum fall-back position, I'll stick with race. I think you're absolutely correct. I think --

QUESTION: See, you're suggesting an irrational distinction. Race and other kinds of prejudice.

MR. CLEARY: Well, no, I'm trying to say that this Court has ruled in the area of racial prejudice, that I have asked for in this case. I think that voir dire has to probe for any serious prejudice; in this case, it didn't probe for any serious prejudice at all, and are not before the Court on any issue other than as to racial prejudice.

QUESTION: How about people with beards? Supposing a defendant had a beard, and it's a middle class, all white, jury, with clean-shaven faces?

MR. CLEARY: Well, I don't want to get into the dissent of the majority in Ham v. South Carolina, my feeling is as to the beards, if it would be a serious prejudice in the case. And my position would be that, on voir dire, that should clearly be explored, if counsel would give some feeling that these individuals might represent some threat to the jurors that should be explored by the judge. However, the position I'm saying is that what constitutes a serious prejudice has to be defined by cases. In that case, we're reviewing a state criminal proceedings, you have before you a federal criminal proceeding and to me, minimum due process fairness requires exploration as to any serious prejudice or --

QUESTION: Well, suppose we disagree with you on your -- what I'll call a per se approach, that any time counsel asks the question must be -- do you lose this case, then?

MR. CLEARY: No, Your Honor, I don't.

QUESTION: You think there are special circumstances that -- in any event, in this case the question should have been asked?

MR. CLEARY: Right. In this case, I think that the relationship of the defendant to the --

QUESTION: But you've lost on that in every other Court?

MR. CLEARY: Because the feeling on that one as to the issue was that they didn't really think the question had to be asked in the first instance. If this Court held that the question had to be asked, then we won't reach harmless error. In this particular case where the racial polarization, the white, Caucasian, and the defendant going with a 19-year-old daughter who may be in the alien smuggling venture, who may be a junkie, who the jury -- could figure that this defendant corrupted this young flower, this woman who is a witness for the government, in the case where the issue turns solely on credibility. There's no overwhelming --

QUESTION: But you argued to the -- this is from the Ninth Circuit, is it?

MR. CLEARY: That's correct, Your Honor.

QUESTION: Did you argue this -- that even if there isn't a general rule about it, at least in the circumstances of this case the question should have been asked?

MR. CLEARY: Your Honor, in the brief, I think I presented almost all the points. I don't -- I can't give you exactly the wording --

QUESTION: Well, you presented it and it was rejected that's a sort of a factual inquiry.

MR. CLEARY: I felt, my feeling was even under the factual circumstances of the case, should have been heard -- there should have been inquiry as to --

MR. CHIEF JUSTICE BURGER: Mr. Jones.

ORAL ARGUMENT OF GEORGE W. JONES, ESQ., ON BEHALF OF THE RESPONDENT

MR. JONES: Mr. Chief Justice, and may it please the Court:

After explaining that the defendant in this case was charged with smuggling illegal aliens into the United States, and that the purpose of voir dire was to uncover any underlying prejudices, the trial court specifically asked the jurors whether any of them had any feelings about aliens, or the illegal alien problem. It seems to us highly unlikely that any of the jurors in this case assumed that the trial court's questions excluded Mexican aliens, or any strong feelings they might have had about the Mexican illegal alien problem, particularly in light of what Petitioner refers to as his obvious Mexican appearance.

QUESTION: Are we to assume that you -- that the United States thinks the, if the question about aliens hadn't been asked there would have been error here?

MR. JONES: We don't believe that circumstances of this case provide any substantial basis for asking any more than what the trial court --

QUESTION: I know. But what if he hadn't asked about aliens?

MR. JONES: The question was about illegal aliens.

QUESTION: Was there enough -- was this the kind of a case where some kind of a question about alienage or Mexican Americans should have been asked?

MR. JONES: Well if the trial court hadn't asked either the question about aliens or illegal immigration, it would be a much closer case. But since the trial court did ask those questions, the issue in this case is essentially whether petitioner's proposed question would have been significantly more effective in uncovering bias against Mexicans than the question the trial court did ask.

This Court's cases don't suggest that questions about racial bias or racial prejudice, need to be put in any particular form, in Ham this Court specifically disclaimed any intention -- to impose such a requirement. The Court's questions in this case were more than adequate to satisfy both the constitutional rule and the federal common law rule.

A panel of jurors drawn from the Southern District of California could hardly have failed to understand the trial judge's questions to include bias against Mexican aliens and any strong feelings they might have had about the illegal alien problem, illegal Mexican alien problems. The only bias that wasn't covered by the questions the trial court asked, only conceivable bias that wasn't covered is bias against Americans with Mexican ancestry. Petitioner of course, was not an American, and there's no reason at all to assume that the jurors in this case would have been biased against Mexican Americans but not Mexican aliens.

Throughout the proceedings in the Courts below, the Petitioner -- and in fact, in this Court as well -- Petitioner argues that the trial court was obliged to ask this additional question only because this Court's decisions required it. Neither Ham nor Aldridge nor any other decision of this Court purported to establish a per se rule to be applied without regard to the facts of the case. Ristaino, of course, makes it plain that the constitutional rule is -- the constitutional rule is triggered only if race or racial bias is inextricably bound up with the issues at trial, that simply wasn't the case here. The federal common law rule announced in Aldridge requires the questions specifically directed to racial bias or at least something more than a general question only when the nature of the offense or the facts of the case suggest that there is a strong or substantial likelihood that racial bias will affect the jury's deliberations. The decision in Aldridge does not rest on the assumption that only a question specifically mentioning race is sufficient to uncover racial bias. nor does it rest on the assumption that a question that does not mention race is necessarily insufficient.

QUESTION: Mr. Jones, can I interrupt for a preliminary question? In the procedure that was followed by the trial judge here, was the government given an opportunity to object to the questions proposed by defense counsel to be asked by the Court? And if so, did the government object to this particular question?

MR. JONES: The questions were submitted in writing prior to trial, and therefore the government of course had an opportunity to object. There's no indication that the government did object, however. Immediately prior to --

QUESTION: So you wouldn't know -- the government doesn't take the position that there would have been anything wrong with the judge asking the question, it's just that it wasn't necessary to do so?

MR. JONES: Right. And there was particularly nothing wrong with asking the question in light of the questions that were asked, but in addition to that, the federal common law rule that Petitioner relies on does not at all suggest that the question should be asked whenever the Defendant requests it, but only when the likelihood that racial bias will affect the jury's deliberations is substantial. In Ristaino, this Court made it fairly clear that something more than a general question was required, but the rule is only required because the facts indicate a need for it. And the additional protection provided by asking more specific questions was thought necessary. The facts of both Ristaino and Aldridge underscore the point.

QUESTION: Mr. Jones, let me ask one other question. Supposing this had been a black defendant and the request had been framed in terms of racial prejudice specifically. Would you say that -- and the crime had actually nothing to do with a black/white problem -- would you say that the judge would have had a duty to ask the questions?

MR. JONES: Certainly not. As I said, the federal common law rule adopted in Aldridge, or announced in Aldridge, only requires a question more specific than a general question when the facts or the circumstances surrounding the case suggest there is some particularly substantial likelihood that racial bias will be a factor in the case or influence the jury's deliberations. There's simply -- in both Ristaino and Aldridge, black defendants were charged with crimes of violence directed at white law enforcement officers. In Aldridge the defendant was charged with murder, and in Ristaino, assault with intent to murder. In cases involving crimes of interracial violence, the danger that racial prejudice will affect the deliberations of the jury, is particularly substantial for some of the jurors are likely to identify with the victim and view the case as us against them, and of course, crimes of violence are inherently more likely to evoke strong emotional reactions in jurors than most nonviolent crimes.

The Petitioner's attempt in this Court and in his brief to rely on the relationship with Bowling's daughter, is -- well, comes about three years too late. In the District Court, Petitioner said nothing, absolutely nothing to the District judge about the possibility that this relationship with Bowling's daughter would be mentioned at trial. And as Justice Marshall pointed out, it's the duty of counsel to point out the facts which will support a request for a specific question. Having failed to do that, he should not be allowed to rely on it now. But even if Petitioner had raised the point in the District Court, refusal to ask the question in this case would not have constituted an abuse of discretion.

QUESTION: Well it would have in some other circuits, wouldn't it?

MR. JONES: Well, there's no discretion in some other circuits.

QUESTION: That's what I -- so it's not, you would even get to the discretion problem?

MR. JONES: That's right.

QUESTION: So you would be losing this case in other circuits?

MR. JONES: That's right. And on the facts of this case we might be petitioning this case. But --

QUESTION: You would have lost this case before now in other circuits?

MR. JONES: That's right.

QUESTION: But as the Petitioner points out, every defendant belongs to one race or another, and --

MR. JONES: That's right.

QUESTION: -- and potentially at least, there can be racial prejudice against any race?

MR. JONES: As Petitioner also points out --

QUESTION: And his claim is, as you know, that whenever defense counsel asks about -- asks the jury -- requests that the jury be asked about racial prejudice, every potential juror -- that it's the judge's obligation to ask these questions.

MR. JONES: Rules 24 suggests the contrary, Your Honor. The Rule provides that the Court may allow counsel to conduct voir dire, may itself conduct voir dire, if the Court conducts voir dire it should allow counsel to ask supplemental questions or submit supplemental questions that it deems proper.

QUESTION: Right. Every case it says may.

MR. JONES: Right. Except that, it says shall permit counsel to submit supplemental questions.

QUESTION: And there was no denial of that?

MR. JONES: That's right. And in each case, the trial judge as Rule 24 suggests, should be allowed to look at the circumstances of the case and determine whether there's any particular need for the kinds of questions or whether as the trial judge did in this case, questions other than specific questions posed by counsel were sufficient.

QUESTION: Mr. Jones, supposing you had an ordinary burglary trial, had no racial overtones, and about a week after the Pearl Harbor bombing, and the defendant was a Japanese. Would he have had a right to have this kind of question asked about potential prejudice against Japanese?

MR. JONES: Certainly.

QUESTION: Well why?

MR. JONES: Because under the circumstances, it would be very likely that jurors would find his -- his status as Japanese --

QUESTION: Fact that he's Japanese.

MR. JONES: -- somewhat offensive, or at least be very sensitive.

QUESTION: You're really moving out, now. What about the Germans?

MR. JONES: Excuse me?

QUESTION: What about Germans and Italians?

MR. JONES: At that point, it seems to me that these two questions underscore the need to allow the trial judge and the district courts to look at the circumstances of the case and determine whether a specific question is necessary or not.

QUESTION: Well then, Mr. Jones, you are saying no more, I take it, than that it might be an abuse of discretion to decline to ask the question Justice Stevens suggested to you, not a constitutional per se rule?

MR. JONES: That's right.

QUESTION: You weren't suggesting that there should be a constitutional rule on this?

MR. JONES: No.

QUESTION: Well, of course, nobody's arguing the constitutional rule.

MR. JONES: Excuse me?

QUESTION: Nobody's arguing the constitutional rule. It's a question of supervisory power.

MR. JONES: I'm not entirely sure that Petitioner isn't arguing for constitutional --

QUESTION: Well he's arguing for either alternative.

QUESTION: My question was in the disjunctive constitutional or per se rule. Per se rule, under supervisory power. That isn't what you were conceding?

MR. JONES: No. It seems to us that --

QUESTION: Well excuse me, finish with the Chief Justice.

MR. JONES: The per se rule is, under the circumstances, unnecessary in this area. And it would cause as many problems as it would resolve, since you have questions like --

QUESTION: Well Mr. Jones, you may understand what I'm talking about, whether it's a constitutional rule or a supervisory rule, it would end up in being a per se rule? Is that what they're arguing for?

MR. JONES: I think they are arguing that there is a per se rule, at least as to supervisory power, and that --

QUESTION: So there is no difference; they just want a per se rule either way?

QUESTION: That's right.

QUESTION: That's the way I -- am I right, Mr. Jones?

MR. JONES: I think that's -- I am inclined to agree with your interpretation.

QUESTION: Would you think that would be equally applicable as to the need, now, the need from the defendant's point of view, if the defendant has a substantial criminal record but may want to take the stand? Would such a rule that we're talking about that's being advocated, indicate that the question would be required, would you as a juror be biased against a person if it developed that he had four criminal convictions?

MR. JONES: Well there are constitutional implications to that question that I am not prepared to deal with at present. But it seems to me that too is a case where there is no need for a per se rule, and a per se rule would be completely unnecessary, or inappropriate. The trial judge, looking at the case -- the defendant says well, I may or may not want to testify. The trial judge may have reservations about asking questions but if the defendant can have his conviction reversed because the trial court refused to ask the question under those circumstances, it seems to us that the rule is charged with causing more problems than it is eliminating.

QUESTION: Well what do you suggest, Mr. Jones, should be the standard by which, if it's not a per se rule, the trial judge should decide whether they will or won't ask the question that the defense counsel requests?

MR. JONES: The standard should be and I think, is, that only when the facts of the case or the nature of the charge suggest that there is some substantial likelihood that racial bias will intrude on the deliberations of the jury.

QUESTION: Well counsel here had suggested to the judge, one of the reasons I'd like that question asked in this case is that it's likely to come out during the trial a relationship between this young lady and the defendant in that circumstance, had he done so and the judge still refused to ask the question, would you have thought that was the question?

MR. JONES: A closer question, Your Honor. But still a question of judgment, and one that the district court who has seen the answers of all the jurors to the questions asked before, is in a much better position to answer than I am.

QUESTION: Well isn't it true, counsel, that in a case such as this involving illegal smuggling of aliens, people of entirely Caucasian background might have quite different feelings; some might be very sympathetic to someone who is smuggling illegal aliens because they could use them for labor on -- in agri-business, and that sort of thing, whereas others might feel that, you know, we just don't want any people like that in this state. I mean the prejudice can extend in any direction.

MR. JONES: That's absolutely true, Your Honor. It seems to us that it makes absolutely no sense to assume that all people of one race have identical feelings about any particular question and --

QUESTION: Mr. Jones, you're not -- when you conduct voir dire, you're not assuming that everybody has -- you're trying to find that one rare person who may have the prejudice and you want to get him off the jury. And you -- I doubt if you would suggest that it's totally fantastic to assume that without regard to what the facts of the case might have been, there probably are some people in San Diego or Los Angeles who are prejudiced against Mexicans and --

MR. JONES: And they would have been --

QUESTION: -- what's wrong with trying to find out who they are?

MR. JONES: Okay. And they would have been identified by the questions that were asked and --

QUESTION: There's no question about Mexicans were asked. Questions about illegal smuggling and all that, I suppose everybody's against illegal smuggling.

MR. JONES: Illegal -- whether the jurors had any feelings about illegal alien problems, that would prevent them from serving --

QUESTION: But some of these people, I'm hypothesizing, may actually be out there, are people who are not concerned about illegal aliens but they just don't like Mexicans, period; legal, illegal, citizen, whatever they are. There are such people, you know, who are prejudiced.

MR. JONES: Your Honor -- for sure, I have no doubt that there are, Your Honor, but --

QUESTION: And what's wrong with trying to find out who they are before you let them sit on the jury?

MR. JONES: They could have found out who they were by asking the questions about aliens. Since, virtually anybody in California, or in southern California, especially in San Diego County which borders Mexico -- 170 miles of border between Mexico -- and as this Court pointed out, a few years back, the government had estimated that 85 percent of the illegal aliens in the country were Mexicans. And it seems to me highly unlikely that anybody living, particularly in San Diego County could conceivably have thought that this question about illegal aliens doesn't really reach my bias against Mexicans.

QUESTION: Mrs. Bowling lived in Imperial Beach, did she not?

MR. JONES: That's right.

QUESTION: Which is about what, 8-10 miles from the border?

MR. JONES: Right. And the trial took place in San Diego.

QUESTION: What you're saying is that no juror -- intellectually qualified to sit on the jury would have thought they were talking about Finlanders or Swedes or South Africans, but only about illegal Mexicans?

MR. JONES: Or, not even only about illegal Mexicans, but at least including illegal Mexicans. As the Petitioner again -- to return to the Petitioner's reliance on the relationship with Bowling's daughter -- it seems that the trial court's questions were at least, at least as effective in identifying the jurors, prospective jurors who might have found the relationship objectionable as the question about whether or not the jurors would have --

QUESTION: Mr. Jones, just to emphasize one point, the government's position would be precisely the same as far as the bottom line is concerned if none of these other questions had been asked about illegal smuggling, as I understand you? You just don't have to ask a question that is merely related to the race or national origin of the person even though the community might harbor prejudice against that particular race or minority. That's your bottom line, as I understand it, Mr. Jones?

MR. JONES: Our position would be the same in the sense that the legal analysis would be the same. We might say that in a particular case it was error for failure to ask some other questions, but not that there's some different legal standard to be applied.

MR. CHIEF JUSTICE BURGER: We'll reflect further on that during the noon hour and we will resume at one o'clock.

(lunch recess)

MR. CHIEF JUSTICE BURGER: Mr. Jones, we've used about five minutes of your time but we won't charge it to you; you have ten minutes remaining.

MR. JONES: Thank you. Mr. Chief Justice and may it please the Court:

In further response to Mr. Justice Stevens' question at the close of the last session, the government doesn't believe that there is any harm in asking a question or two concerning potential racial bias, provided that the questioning is not interminable. But under Rule 24(a), Federal Rules of Criminal Procedure, whether a particular question should be asked in light of all of the surrounding circumstances and if so, in what form, is left to the trial court's discretion subject to appellate review for abuse of discretion. Petitioner's suggestion that this Court in the exercise of its supervisory power ought to restructure the federal voir dire system is flatly contrary to Rule 24(a). Similar suggestions were made and implicitly rejected at the time Rule 24 was initially considered. If the rule is to be amended it should be amended by the rulemaking or rule amending procedures set up for that purpose.

In conclusion, a jury verdict based on virtually overwhelming evidence should not be reversed solely because the trial court failed to mention the obvious. The questions asked by the trial court were sufficiently specific to uncover any racial bias or any bias against Petitioner because of his Mexican ancestry, and there is no reason to believe that the proposed question could have been any more effective to that end. The judgment of the Court of Appeals should be affirmed.

MR. CHIEF JUSTICE BURGER: Thank you gentlemen, the case is submitted.

(Whereupon the case in the above matter was submitted at 1:07 o'clock p.m.)