Cases by Issue - Voir Dire

Mu'min v. Virginia - Oral Argument

Fri, 09 Jan 2009 14:49:38 +0000

Case:

Mu'min v. Virginia

Media File:

90-5193_19910220-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of John H. Blume

Chief Justice Rehnquist: We'll hear next in case No. 90-5193, Dawud Majid Mu'Min v. Virginia.

Mr. Blume?

Let's move along, please, at the counsel table.

We have another case.

You may proceed, Mr. Blume.

Mr. Blume: Thank you, Mr. Chief Justice, and may it please the Court:

This case involves the question whether, in a capital case, involving pervasive, prejudicial pretrial publicity, which a majority of the potential jurors have been exposed to, may a trial judge prohibit any inquiry whatsoever regarding what the jurors know.

In answering that question, the pertinent facts in Mr. Mu'Min's case need to be briefly reviewed.

He was charged in the fall of 1988 with capital murder.

At that time he was serving a 48-year sentence for murder in the Virginia Department of Corrections.

The case drew substantial press attention due to the nature of the crime and its unusual historical context.

The articles, as the dissenting justices of the Virginia Supreme Court noted, were very negative in their tone and their content.

They included reports that Mr. Mu'Min had confessed to the murder; that a rape was involved in this crime; the details of his 1973 murder conviction, including the fact that the death penalty was not an available punishment due to this Court's decision in Furman; Mr. Mu'Min's juvenile, criminal, prison and parole records as well as a number of other bad acts.

Furthermore, this case became part of the then national debate about the laxity of the correction system.

There were articles which indicated that all public officials associated with this crime should be fired as well as stories comparing Mr. Mu'Min's offense to a crime committed by the then infamous Willy Horton, and other crimes committed by Virginia prisoners.

This case became caught up in the themes of the Bush/Dukakis presidential campaign.

Politicians, candidates, and public officials, including the prosecutor in this case, used it as an example of all that was wrong with the criminal justice system.

Then Governor Baliles suspended the work release program with great media fanfare as a result of this offense.

The then Virginia Department of Transportation Secretary, Vivian Watt, made a public apology to the victim's family and to the citizens of the county as a result of this crime.

As a result of this media coverage, counsel requested that certain voir dire questions be asked regarding the content of the information that the potential jurors had been exposed to.

The trial judge, however, refused to ask or permit any questions to this effect and only allowed several short questions regarding whether, in spite of the media accounts, the jurors could be impartial.

Unknown Speaker: He did allow questions as to whether they had seen media accounts?

Mr. Blume: Yes, he allowed one question which was, have you read anything about the case.

Then he allowed... then there were several follow-up questions asked which are specifically set forth in Rule 14(a) of the Virginia supreme court rules which were; would that information affect your impartiality, followed up by, do you believe that you can enter the jury box with an open mind and wait until the entire case is presented before reaching a fixed opinion as to Mr. Mu'Min's guilt or innocence, and then he essentially asked that question... the same question again.

And that was the sole thrust of the--

Unknown Speaker: And what you saw was to interrogate the jurors who said they had seen something about what it was they had seen?

Mr. Blume: --What counsel sought to ask were several questions regarding what the jurors had seen about the case, yes.

The trial judge adhered to this decision--

Unknown Speaker: Are there questions that... that counsel proposed to be asked in the record?

Mr. Blume: --Yes, they are--

Unknown Speaker: Well--

Mr. Blume: --in the joint appendix in the first few pages, beginning at page--

Unknown Speaker: --All right.

Mr. Blume: --2 are his proposed voir dire questions.

Unknown Speaker: Fine.

Mr. Blume: The trial judge adhered to this decision despite the fact that when the jury was attempting to be selected that 16 of the 20-some original panel called acknowledged that they had read about the case.

In fact, 8 of 12 jurors who ultimately convicted Mr. Mu'Min of murder and sentenced him to death had read stories in the press, although we have no idea what they had read.

Unknown Speaker: Was that disclosed by interviewing the jurors after the trial?

Mr. Blume: What... which ones had read about the case?

Unknown Speaker: Yes.

Mr. Blume: No, the judge said--

Unknown Speaker: This is just based on what was... what were the responses to the questions asked by the judge on voir dire?

Mr. Blume: --Yes, Justice Kennedy.

The judge said, has anyone acquired any information about the account... about the case to the news accounts?

The jurors raised their hand.

They noted who they were, and then he asked these several follow-up questions, so you had an idea of who it was based upon that.

It's in the transcript... the record.

It's also in the joint appendix.

Unknown Speaker: Was there a motion to change venue in this case?

Mr. Blume: Yes, Your Honor.

The motion was made several times.

It was made pretrial.

The judge said it's premature.

That was when a number of these articles were brought to his attention.

The judge denied the motion, said we'll wait and see what happens during the jury selection process.

However, he also made several remarks there which I think are factors that need to be considered.

He said that it's my opinion if you can get a fair and impartial jury in this county... I've heard it said, you know, that with approval, you can get an impartial jury here for anything if you want to.

And made several remarks like that.

Then there was... during the jury selection process... the jurors indicated that they had... these jurors indicated that they had read about the case.

Counsel moved to ask the questions.

That was denied.

He then asked that all the jurors who had read about the case be excused for cause.

That was denied.

He then renewed his motion for a change of venue.

Unknown Speaker: Do you think that... is part of your claim that the publicity was so pervasive that bias should automatically be presumed?

Mr. Blume: No.

Mr. Mu'Min does not contend that this is a Irvin v. Dowd presumed prejudice case.

I think the rule Mr. Mu'Min seeks is really more modest than that.

This Court has essentially gone further than needs to be gone here and has adopted a rule, as in Irvin, that under some circumstances a trial... a juror's assertions of impartiality can be, and in fact must be, disregarded.

Unknown Speaker: Well, there's not a whole lot left of Irvin after Murphy against Florida and Patton against Yount.

Mr. Blume: There... well, the significant thing about those cases I believe is... in Patton v. Yount I think supports Mr. Mu'Min's contention.

The presumption--

Unknown Speaker: Well, let's... let's talk about that precise point.

I thought that in Patton against Yount we said that the State trial court's finding of impartiality could only be overturned from manifest error.

Now, I take it the rule you want us to adopt is one that says anytime there's a lot of pretrial media coverage in a capital case, that absent content questions such as you proposed during voir dire that we're going to be able to presume that that's manifest error.

Mr. Blume: --No, Justice O'Connor, I don't really believe that's the rule that we seek.

Let me say this about Patton.

The Court gave the finding of impartiality... the presumption of correctness in Patton... and explicitly said this.

We do so because the trial judge allowed a searching voir dire which was specifically designed to elicit juror bias as a result of the publicity.

That simply did not happen here.

This Court has acknowledged in other cases that without an adequate voir dire, the judge's findings of impartiality cannot... should be afforded due deference.

Unknown Speaker: Well, of course, we have to distinguish, don't we, to some extent whether it is a proceeding arising in State court or one in Federal court.

Certainly, we can impose different requirements in Federal court than we would be required to impose by the due process clause for State court proceedings.

Mr. Blume: There is no question that this Court's supervisory power over Federal court proceedings is broader.

But nevertheless, the Sixth Amendment right to a fair and impartial jury applies in State court criminal proceedings.

And it must--

Unknown Speaker: Yes, but you have here a determination by the trial court judge that the jurors who were impanelled were fair and impartial.

And he made that determination based on their responses to these generalized inquiries.

Mr. Blume: --He essentially... I think that the fair reading of what happened is he took their silence on faith.

The jurors could have been found to be impartial here by totally remaining silent.

All they had to do was not respond to the questions about regarding whether you could be fair and impartial.

They didn't have to say a word.

Unknown Speaker: Well, well, and there wasn't... there wouldn't be anything you could do about it under... in a Federal court if they just stayed silent.

You wouldn't say, I insist on individual voir dire of every single member of the venire.

Mr. Blume: No, Mr. Mu'Min is not here seeking individual sequestered voir dire.

However, I think if the Sixth Amendment right to a fair and impartial jury is to mean anything, it must mean that when the publicity, taken as a whole, poses a constitutionally significant risk that the jurors may have been influenced by prejudicial, extraneous information, may have formed an opinion about the case, or be otherwise biased or partial as to guilt, or in a capital case, as to either guilt or the appropriate punishment, and one or more jurors have been exposed to that information, then some reasonable inquiry must be made.

I think more concretely in a case such as Mr. Mu'Min's where the publicity contains information which is inadmissible or inaccurate, which is material, and which is likely to mislead or inflame the jury as to guilt or punishment, some inquiry must be permitted as to what the jurors know.

Again, this is a more modest rule than what has already been adopted by this Court in Irvin, which is that sometimes jurors' assertions of impartiality must be disbelieved.

It involves a narrower... a narrower procedural rule than that adopted in Irvir but is nevertheless necessary to its implementation, because under some circumstances, as this Court has acknowledged, pretrial publicity can impinge upon a defendant's right to a fair and impartial jury.

This Court has also acknowledged that a defendant's protection against that infringement... his protection against the effects of negative pretrial publicity is his ability to demonstrate actual juror bias.

Without some fair opportunity of finding out in a case such as this what the jurors know, that right simply cannot be honored.

Unknown Speaker: Well, to follow that through, Mr. Blume.

What is... what is the goal of these further questions?

To exercise peremptories, to challenge for cause?

Mr. Blume: There's certainly no question that any defense lawyer would want to know this for peremptories, but that is not the thrust of the concern.

The concern is without this information, the trial judge simply cannot fairly evaluate the jurors' assertions of impartiality.

I think in--

Unknown Speaker: Well, so... but I mean, what specifically are you trying to develop?

Challenges for cause?

Mr. Blume: --I think it would be... there would be a number of things.

One, it would give the judge a basis to determine the jurors' assertions of impartiolity.

Unknown Speaker: But I mean... but from your... from the point of view of the defendant?

Mr. Blume: It would be whether the juror was qualified to serve... or if he would be excused for cause.

Unknown Speaker: Excused for cause.

Mr. Blume: I think several things could come out.

One, a judge would have something to evaluate it against.

It is... it seems to me the essence of a judge's duty to apply the law to the relevant facts.

Unknown Speaker: Can you... do you suggest at all of these 58 or more questions have anything to do with publicity?

Mr. Blume: No, I don't think Mr. Mu'Min's position here... it's actually only 4 or 5 that had to do with the media... depends on any one particular question.

Those questions or some reasonable substitutes needed to be asked.

They didn't need to be asked by counsel--

Unknown Speaker: I know, but the argument... how many of these questions have to do with the fundamental issue about whether or not a juror might be biased because of publicity?

Mr. Blume: --There were 3 or 4, I think, in the record that he sought to ask which were denied which had to do with that particular fact.

Unknown Speaker: Well, you... this list is headed up, petitioner's proposed voir dire questions.

Mr. Blume: Yes, that's the entire list that he submitted... that he submitted in the case.

It's only several, which I believe are on page 4 and 5.

There are several questions at the bottom of 4 and the top of 5 which are relevant to this.

Unknown Speaker: Mr. Blume, what I don't see about those questions... I mean, you know, what have you... the judge... it's on pages I guess about 47 and on... of 48 and on of the... of the appendix... joint appendix.

The judge spent a good deal of time making sure that the jurors understood that whatever they had heard, they were not to take into account, and asking them whether they could impartially decide the case despite that.

And one of the members of the venire was excused on that basis, because he--

Mr. Blume: One of the numbers was.

Unknown Speaker: --And he asked the question more than once.

He asked it several times, right?

Mr. Blume: He really only went into it one time.

There were a couple panels that were brought in where they weren't sure whether those people had been asked.

They weren't part of the original panel, so as new people were brought in, they were then asked the same question.

So it wasn't the same people being questioned over and over about it.

Unknown Speaker: Well, I see him as being rather persistent about it.

He says, I'll read it... I'll repeat it in a different fashion.

He goes into it several ways.

Now, explain to me how it would help being sure that they weren't just feigning about being able to be impartial.

How would it have helped to have asked the particular questions that you wanted asked such as, what have you seen, read, or heard about this case?

I mean they admit that they've seen, read, and heard stuff.

Why would it help to know what it is that they've seen?

Why would that help you to determine whether they could be impartial?

Mr. Blume: Well, Justice Scalia, let me give a few concrete examples--

Unknown Speaker: Now, that I'd like.

Mr. Blume: --of what I think would happen in a case.

Unknown Speaker: Okay.

Mr. Blume: A potential juror called, what have you seen about the case... what have you read about the case?

Well, I read that Mr. Mu'Min has a long prior record.

Would you be able to put that out of your mind?

No.

Well, that juror... no judge would agree to that juror's qualified.

Another example--

Unknown Speaker: Excuse me, why would he answer no to that question, but answer yes to the more general question, has anything that you've heard or read about the case so made up your mind that you couldn't put it out of your mind?

Mr. Blume: --Because I think that due to the nature of the prejudicial information, the way pretrial publicity prejudices someone... it's important to understand what they know.

A juror may or may not know, for example, that they're not supposed to consider an individual's prior criminal record.

The straight question, would this affect your decision?

Without knowing it, they don't know the legal standard.

This Court has recognized in numerous contexts that the juror cannot be the ultimate arbiter of their own impartiality.

They do not know the correct legal standard.

It's... the Court has also recognized and I think it's true that jurors... it's difficult to determine juror bias, because they may not want to reveal it or they've--

Unknown Speaker: Well, the kind of--

Mr. Blume: --also may not know it.

Unknown Speaker: --The kind of voir dire you're talking about with Justice Scalia, Mr. Blume, would have to be sequestered voir dire.

You don't want a juror standing up in front of the whole panel and saying, well, I read that he'd been such and such, and such and such, and thereby infecting every other member of the panel.

Mr. Blume: Justice Rehnquist, I think the term individual--

Unknown Speaker: I'm the Chief Justice.

Mr. Blume: --I'm sorry, Chief Justice Rehnquist.

I think the term individual sequestered voir dire suggests an elaborateness of procedure that is not necessary.

There are a number of ways you could have done this and of course that would be free to the States to determine how to implement the constitutional right.

Unknown Speaker: Well, you... you would... you would have had to sequestered the individual being interrogated... the venire person being interrogated... from the rest of the potential jurors, would you not?

Mr. Blume: I think there are a number of ways you can do it.

Unknown Speaker: Can you answer my question yes or no?

Mr. Blume: I... yes.

I don't know that you necessarily would.

Let me give you a way in which we do other things in criminal courts which might be relevant.

Often potential jurors are asked, have you ever been a victim of a crime.

Rather than take everyone out and individually sequester the juror, that person is asked to come to the bench and then the lawyers and the judge talk briefly at the bench and you find it out.

That's a procedure that could be used.

Questionnaires is possibly another way to elicit what they know.

The point is that this does not lead inevitably to individual sequestered voir dire.

The States, you know, some States may decide to go that way, as they done with Turner.

This Court's decision in Turner... they've developed different ways to try and implement that constitutional right.

The fact that they... that it may require some follow-up of it does not mean that the opposite conclusion should be drawn and that nothing should be allowed to be done.

Unknown Speaker: Suppose that the judge had granted these questions 32 through 41, have you heard anything... where did you get it?

Have you heard any opinions about the case and so on?

And your final... 41, you say, can you disregard anything that might have been said and try this case on the law and the evidence you hear in this courtroom?

Now... and the juror says, yes.

And I suppose you can say, in order to get him off, if you don't... you just have to say you don't believe him.

And you ask the judge not to believe him.

Mr. Blume: Well, that, you know, may or may not happen, depending on what an individual juror says.

But that's the kind of--

Unknown Speaker: Well, I know but... but to get him... unless you're going to challenge... unless you're going to... well, I suppose it is... be possible that after the juror is... is... answers these questions, he may say he... no, I am biased.

Mr. Blume: --That is another phenomenon which this Court has recognized and which is documented in the literature.

Unknown Speaker: But if he says... the juror says, no, I can try the case fairly--

Mr. Blume: Then the judge would one... he would have a number of facts against which to judge the juror's assertions of impartiality and, two, the juror may change their mind.

But if the judge heard all that, found the juror to be impartial, then that finding would be entitled to the presumption of correctness, that it would be made on the basis of an adequate voir dire.

Without it... with the procedures utilized in this case, essentially the judge had to accept what the jurors said about their own impartiality on faith.

But again, it is a fundamental principle that jurors cannot be the final ultimate arbiters of their own impartiality.

Unknown Speaker: --He's finally going to have to accept it one way or the other even at the end of this... of the series of questions you want to propose... the final question still is, in spite of what you've heard, can you be impartial?

The juror says, yes.

And the judge still makes a certain subjective assessment; is this juror tell the truth?

Mr. Blume: Yes, but then the judge has some facts, come... against which to apply the legal criteria.

I think the... an analogy might be a suppression hearing.

I don't think that anybody would reasonably say that all... a lawyer can ask a police officer at a suppression hearing is, was the confession that you took from my client free and voluntary?

You're entitled to get some information out.

That is the essence of a judge's duty, to apply law to facts.

Without that, there is no way to have any idea what the jurors know.

Unknown Speaker: Mr. Blume, one can presume facts.

Now, you're arguing this doesn't have to be done in all cases, but just when there's been a lot of pretrial publicity.

And I assume this judge knew of the pretrial publicity.

He'd been advised of it.

Why couldn't he say to himself, I will assume that all of these jurors know all of that pretrial publicity.

And even if each one came up and said to me, I read... you know, it's a small town... it's a local newspaper... I read every one of those articles.

Even if they knew all of it, I would still accept their word.

Now, why... couldn't you say that?

Mr. Blume: First, in this record we have affirmative evidence that the trial judge did not believe that.

He said affirmatively in the record, that I think the media believe their stories are more widely read than they in fact are.

So we know in this record that is not what the judge thought.

Unknown Speaker: Un-huh.

Mr. Blume: However, even then, assuming that the... you still would not have any way in which the juror talked about the information... that demeanor of evidence is relevant in this.

In fact, in this case on a less relevant issue, the judge excused a juror who said they were opposed to the Islamic faith, because he didn't like the way they said it.

That's the type of things judges do, but they do it by hearing at least a little bit about what the jurors know.

And in this context, in this type of prejudicial pretrial information, some idea of what the jurors know is necessary.

It's a--

Unknown Speaker: I don't understand your first point.

Why is it that the judge's assumption that the media think that more people read them than do... why does that preclude his having made this decision on the assumption that everybody read everything?

Mr. Blume: --No, I'm saying this particular judge said that, so we know that he didn't think--

Unknown Speaker: He didn't believe everybody in fact read everything, but he could have made his judgment as to whether he would believe their assertion of impartiality on the assumption that they had all read everything.

Could he make that assumption?

Mr. Blume: --Well, we know that he didn't do it here.

But assuming a judge did--

Unknown Speaker: Well, wait... why do we know he didn't do it here?

That's what I'm asking you.

Mr. Blume: --It seems to me he--

Unknown Speaker: Because he doesn't believe... because he thinks the media think that they are more widely read than they in fact are.

Mr. Blume: --And that he said--

Unknown Speaker: I'm saying that he assumed it, not... for purposes of his judgment... not that he believed it was true, but for purposes of whether he would believe the jury, he assumed that they had read all of the pretrial publicity.

Couldn't he do that?

Mr. Blume: --He might do that, but again then you still would not have any idea of what... how a particular juror reacted to that.

If you knew the jurors knew all that, for example, then it seems to me a defendant would still be entitled to know how they reacted to it.

Let's go to another example which would arise out of the type of publicity in this case.

The prosecutor in the 1973 case made statements to the press, which were reported, that Mr. Mu'Min got a 48-year sentence in '73 because the death penalty was not available.

Let's assume a juror knew that.

A fair question would seem to me to be, well, can you put that out of your mind when you're determining Mr. Mu'Min's punishment?

A juror may say, no, I feel... that would be tough for me.

I feel like he beat the death penalty on a legal technicality in '73 and should be sentenced to death now.

That would be possibly a logical follow-up to having some idea of what the jurors know.

This is a different type bias than race bias, than the race bias identified in Turner which is a more generic type bias which is easy to focus a juror's attention on.

The bias that results from pretrial publicity is necessarily more fact specific.

It depends on what the media accounts say.

And this Court has acknowledged that.

It said that the extent and the tone of publicity can affect a juror's ability to be impartial.

So you have to have some fair opportunity in a case with this pervasiveness of publicity to... to at least find out what the jurors know and then to find out how that might affect them.

Unknown Speaker: Mr. Blume, in Turner against Murray on which you place some reliance, where the concern was the refusal or failure by the trial court to ask some voir dire questions about racial bias, the court left in place the conviction, did it not?

Mr. Blume: Yes, ma'am.

Unknown Speaker: And yet you think that we have to overturn your client's conviction?

Mr. Blume: I think there are several reasons--

Unknown Speaker: How do you square that with what the Court did in Turner?

Mr. Blume: --I think there are several reasons, Justice O'Connor, that that's true.

First, I think what the Court said in Turner was that the nature of the racial bias of that case would not have affected the guilt/innocence determination.

That is necessarily different, I think, than the type of information that was involved in this case which contained a number of facts which are not admitted at the guilt or innocence phase of this trial.

And essentially what the Court said in Turner, as I understand it, was not that the error was harmless as to Mr. Turner's guilt, but that there was no Sixth Amendment violation as to his guilt.

I don't think you can draw that same conclusion from the type of publicity in this case.

But nevertheless, drawing upon Turner, the violation in this case certainly cannot be harmless, assuming harmless error applies at the sentencing phase.

Unknown Speaker: What is the general rule that you're proposing for our adoption... that in every case where there is the potential of prejudicial publicity, there must be a sufficient voir dire to enable attorneys to make a motion to excuse for cause?

Mr. Blume: The rule, as I tried to formulate it, was that if the publicity taken as a whole poses a constitutionally significant risk that the jurors may have been influenced by prejudicial, extraneous information, may have formed an opinion about the case, or may be otherwise biased or partial as to guilt, or in a capital case, as to guilt or punishment, and one or more jurors have read about the information, then some reasonable inquires must be permitted.

That's simply in--

Unknown Speaker: Some... wait a minute... some reasonable inquires must be permitted... by the judge?

Mr. Blume: --The judge would be fine.

Mr. Mu'Min was not seeking the counsel to ask the questions himself.

If the judge had asked these questions, that would have been fine.

Some States the judge does voir dire and some States the lawyers do it.

Unknown Speaker: And how do you assess reasonableness... by whether or not it would give a review in court or counsel in the case an adequate basis to determine whether or not there's cause for excusal?

Mr. Blume: I think first of whether it would give the judge a basis.

He again is the one who ultimately decide whether the juror is partial or not, and he has to have some facts.

I think certainly it would help for a review in court to have the information to know what the jurors knew and to be able to evaluate their assertions of impartiality against that standard.

It is, I admit, an area of line drawing, but nevertheless, as in many other areas, even in the race cases, Ristaino v. Ross, Rosales-Lopez v. The United States, the court has acknowledged that in cases involving interracial crimes, lines have to be drawn.

I think it would certainly be the same here.

But that doesn't mean that the opposite line should be drawn and say that we're never going to allow people to know what jurors know.

Unknown Speaker: Well, why is there... I don't understand this line drawing.

It's in... I thought from your brief all you asked for was to find out what the... what the jurors know.

Mr. Blume: Yes, that--

Unknown Speaker: It's a simple line.

I don't know why you even went with it through a case of massive publicity.

If a juror says he's heard about the case, your position is he ought to be able to find out what he's heard about it--

Mr. Blume: --I think--

Unknown Speaker: --whether his wife wrote a letter to the governor about it or whatever it was.

Isn't that your position?

You just want to know what the jurors know.

Mr. Blume: --Yes, I think under some circumstances if you can show that something about the information--

Unknown Speaker: Well, they said they knew something about it.

Mr. Blume: --Yes, I think if you can show, though, the points... I think that if you can show that there's something prejudicial about the information that the juror might know, you would need to know, you know, what that is.

Without it, the judge simply cannot determine whether a juror is impartial.

Unknown Speaker: And if... the U.S. Constitution requires that.

Mr. Blume: I think certainly this Court has recognized that, that the trial judge has an affirmative constitutional duty under the due process clause in the Sixth Amendment to ensure the right to a fair and impartial jury, and that under some circumstances that will require an adequate voir dire.

This Court has recognized that in numerous cases.

In a way I think this is the flip side of the freedom--

Unknown Speaker: You say under some circumstances or as Justice Stevens says, under all circumstances?

I thought you were agreeing with him.

Now he's saying under all circumstances... that you always have a right to know what all jurors know.

So in every case--

Mr. Blume: --I think there is a constitutional difference that can be drawn from this Court's decisions about the particular ways in which pervasive, prejudicial publicity can affect a juror's determination.

That is a distinction this Court has drawn and it seems to me to be a reasonable one... that jurors are likely to be influenced by what they read about the case.

In a way--

Unknown Speaker: --Well, suppose... suppose the court said that he's not going allow any inquiries as to whether or not jurors have relatives in law enforcement.

And you were very concerned because it was a small community and there was a danger there might be a connection with law enforcement.

Now, would you accept that as a reasonable ruling by the trial court?

Mr. Blume: --It... you know, you would need to know the facts of the case.

How it related to it, and it may make a difference.

But the point here I think is again this Court specifically recognized--

Unknown Speaker: Well, but the question is... the question is why should it just be limited to pretrial publicity?

There are any number of disqualifications... disqualifying reasons not to sit a juror.

Mr. Blume: --That's true, but I do think that from a constitutional vantage point, this Court has recognized in numerous decisions that pervasive, prejudicial publicity has a... can affect a juror's ability to serve in a unique way.

And--

Unknown Speaker: More so than by being related to a witness or to someone whose engaged in the prosecution of the case?

Mr. Blume: --Well, those... excuse me... those questions were permitted in this case.

Unknown Speaker: Well, I assuming that they weren't in order to test the standard that you're proposing for our adoption.

Mr. Blume: There may be other circumstances which entitle constitutionally a defendant to ask certain questions.

I mean it may be... and that may be one of them.

But I do think that a reasonable line which this Court has already drawn in numerous cases is that publicity may affect jurors in unique ways.

And that seems to me to be a reasonable one.

In a way, this is the flip side of the freedom of the press cases.

I mean this Court and numerous State and federal courts have over the last years recognized and... the right of the press to cover criminal cases.

And they've invalidated a number of measures which restrict press access to those cases.

The court has also noted the increasing frequency with which the press covers criminal cases.

However, if that's true, it seems to me to be also necessarily true that in order to protect a defendant's right, especially a capital defendant's right... someone whose life is at stake... his right to a fair and impartial jury... there are some circumstances such as the one in Mr. Mu'Min's case which you're entitled to have... find out what it is the jurors know.

Unknown Speaker: Well, that doesn't necessarily follow.

I mean the reason we may be concerned... might not the reason we're concerned be that excessive publicity will cause numerous people like Mr. Syphrett, in this case, to have to eliminate himself from the venire, who otherwise wouldn't be eliminated.

Isn't that a good explanation?

Mr. Blume: It is an explanation, Justice Scalia.

But I do think this Court's decisions also bring that principle into play, that due to the frequency with which the press reports things and the freedom that this Court has given in the coverage of criminal trials, and this Court has specifically recognized that in Gannett Company, Nebraska Press and numerous other decisions that a defendant has to have a right to find out... I mean to test the juror's ability to serve.

Unknown Speaker: Thank you, Mr. Blume.

Mr. McLees, we'll hear now from you.

This case was tried where... in Prince William County?

Argument of John H. McLees

Mr. McLees: Yes, it was, Your Honor.

Unknown Speaker: And what... the county seat is Manassas?

Mr. McLees: That's correct, Your Honor.

It was tried in Manassas.

Unknown Speaker: What's the... what's the approximate population of Prince William County?

A couple hundred thousand?

Mr. McLees: Your Honor, in 1988 at the time this case... or at the time this publicity occurred, the approximate population was 194,700, Your Honor.

That's not in the record, but it is in public records.

Mr. Chief Justice, may it please the Court:

Today, Dawud Mu'Min asks the Court to rule as a matter of constitutional law, as he argues in page 38 of his opening brief, that impartiality of a juror must be determined on the basis of information elicited by the court or counsel regarding the content of the publicity to which that juror has been exposed.

Unknown Speaker: Not only that, but if he's heard about it from any person.

Mr. McLees: Yes, Your Honor, I think that the logic of his rule extends to inquiries of that sort.

Unknown Speaker: Well, the question was asked, have you heard about it from any other persons?

Mr. McLees: Yes, details of sources as well as content.

We contend that the adoption of such an inflexible rule as a matter of constitutional law is unnecessary in order to ensure the defendant a fair trial--

Unknown Speaker: What do you think the rule ought to be?

Apparently we have indicated in Irvin against Dowd and Patton against Yount that pretrial publicity in some cases may create some presumption of prejudice.

What do you think the rule is?

What are those cases?

Mr. McLees: --I... Your Honor, I think the rule should be that first, content questioning of the sort we're discussing here is a tool like any other.

It is a tool which the trial court may find helpful in picking a jury, but it is a tool which the trial court in his or her discretion may choose to use or not use in order to ensure that the--

Unknown Speaker: I don't understand what rule you propose we adopt.

I'm... I maybe misunderstand, but I... what is it you're saying is our rule?

Mr. McLees: --That... the rule should be, Your Honor, that the use of content questioning is one of the many matters that is within the discretion of the trial court in conducting a voir dire, because there are a number of other objective factors which the court can consider.

Unknown Speaker: Well, what's the more general rule that you proceed from?

Do you acknowledge that every trial judge has a duty to make inquiry with respect to the juror's impartiality?

Mr. McLees: Yes, Your Honor.

The--

Unknown Speaker: All right, and I take it that inquiry should be of reasonable scope to disclose likely areas of partiality.

Mr. McLees: --Yes, Your Honor.

It--

Unknown Speaker: You would agree with that rule?

Mr. McLees: --Yes, I would.

It must be sufficient to ensure that the defendant receives a fair trial before a fair tribunal.

Unknown Speaker: All right, well, if that's true... if publicity is a particular problem in a particular case, then I assume that some questions must be directed toward publicity under your view?

Mr. McLees: I think that it is... yes.

I think that in a high publicity case, that questioning should be addressed toward publicity.

Unknown Speaker: So all that we're arguing about in this case is the reasonableness of the inquiry that was made?

Mr. McLees: Well, we're arguing, Your Honor... I think it's more than whether the trial court abused its discretion in this case.

I think we're arguing as... whether the court is required to include content questioning in that reasonable inquiry... whether the trial court has... without content questioning, whether the trial court can make a reliable determination as to whether the juror's statement of impartiality can be--

Unknown Speaker: Well, I'll assume petitioner's counselor will say content questions are just one tool.

He should have done something more than what he did, and I offer content questions.

If you have some alternative, maybe that's fine.

I suppose that's what he's going to tell us on rebuttal.

Mr. McLees: --Well, Your Honor, what he has maintained both in his brief and in oral argument is that the error of the trial court here is in not asking any content questions and that content questions are a sine qua non of a determination that a juror can be believed when they say, I will not be affected in my judgment by the pretrial publicity.

Unknown Speaker: Well, do you take the position that regardless of the pretrial publicity and the particular circumstances that the generalized questions asked by the trial judge here would always be sufficient?

Mr. McLees: No.

I don't think that we can... that we can make a broad statement to that effect.

I think that--

Unknown Speaker: So would you acknowledge that sometimes content questions must be asked?

Mr. McLees: --I don't necessarily acknowledge there is any particular circumstance where this Court can draw a bright-line rule and say, here, as a matter of constitutional law, content questions are required.

Unknown Speaker: Do you think in some cases they would be constitutionally required?

Mr. McLees: It would depend... yes, Justice O'Connor, yes.

It would depend--

Unknown Speaker: Yes.

And how do we draw that line?

How do we know when they have to be asked?

Mr. McLees: --By applying the objective factors that this Court laid down in Murphy v. Florida for determining when there is reason to question the veracity or the reliability of a juror's assurances that they can be impartial.

In this case, as Justice Scalia pointed out, the trial court could assume for the purpose of judgment, for the sake of argument, that every juror had read everything in the articles that were demonstrated in the record.

And--

Unknown Speaker: Yes, but... but that doesn't really cover every possible source of information that might have been available.

They might have attended a meeting of the American Legion which was formulating a resolution to send to the governor to improve correction practices.

And that might be where they heard about it.

Mr. McLees: --That's correct, Your Honor.

Unknown Speaker: Well, then that might put a little different cast on the thing or they might have seen a copy of the letter that the spouse wrote to the governor protesting this outrage.

There are a lot of ways of getting information other than just what's in the public press.

Mr. McLees: That's correct, Your Honor.

But the trial court--

Unknown Speaker: Let me just ask you this hypothetical.

Supposing during the trial a juror came to the judge and said, there was some material about the case in the jury room which we all read, but we're all satisfied we can still be impartial.

Do you think the judge would have any duty to say, what was the material?

Mr. McLees: --I think that... yes, he would.

And I think--

Unknown Speaker: A constitutional duty?

Mr. McLees: --Yes, Your Honor.

Unknown Speaker: And how is that case different from this?

Mr. McLees: It's different from this case because as... when... once the jury is impanelled and the jury is instructed, of course, that they are to decide the case based solely on the law and the evidence that comes in in the courtroom, then a breach of that instruction of the court... a breach of the juror's duty by receiving some other sort of information... is an exception.

Unknown Speaker: There is no other... it was there just lying on the table when they got there, and they couldn't help but see it.

Mr. McLees: Well, I'm not suggesting that it... it require that the juror be guilty of wrong doing, but that's an exception to the rule.

The rule is the juror doesn't receive any outside information.

The rule has been breached here because the juror saw this information lying on the table.

I think that... because that's the exception to the rule, that merits specific inquiry, and also it merits specific inquiry because it's so much more immediate and it's a fact in the very bosom of the court, in the jury room, the--

Unknown Speaker: Well, how do you know it's more immediate?

You could... it may be that at breakfast that very morning, the voir dire... the venire person had gotten all the information.

Mr. McLees: --Well--

Unknown Speaker: You don't even know that... you don't know whether it was a newspaper a month ago or in a conversation with a group of friends the very day.

Mr. McLees: --We... Justice Stevens, we never know necessarily everything that may affect a given individual who comes to court to sit on jury duty.

In any case, regardless of whether there's pretrial publicity or not, a juror may have ridden up in the courthouse elevator with someone who made a comment about the bad person who was on trial that day.

But we can't hope to ask everything specifically--

Unknown Speaker: Well, the general question... do you know anything about the defendant or the facts of the case would bring that out, and then you say what do you know.

It's a very routine way to do it.

Mr. McLees: --But that... bringing that out is not going to help the trial judge necessarily determine whether he believes the juror can set that aside as the juror responds--

Unknown Speaker: You don't think it would help the trial judge to know what they had read?

Mr. McLees: --I don't think that the trial judge needs to know that in every case.

Unknown Speaker: Maybe he doesn't need to, but you don't think it would help him at any... you don't think there's a distinction between the wide variety of ways in which people can get information about a case and the nature of the information?

Mr. McLees: It may help in some cases, Justice Stevens.

That's why I say in some cases a trial judge at his or her discretion may find it helpful to ask content questions.

I'm saying that it should not be required as an inflexible constitutional rule.

Unknown Speaker: Only sometimes... I... as a constitutional rule.

I was disappointed to hear your response to Justice O'Connor, because I had... I had thought that one of the advantages of your position... perhaps the only advantage... was that it doesn't get us into the very difficult line drawing questions that some of the colloquy with Mr. Blume was bringing out.

But now you tell me we're into that anyway.

Mr. McLees: I don't--

Unknown Speaker: Sometimes we're going to have to say the Constitution does require it.

Mr. McLees: --Well, I don't think that the Court can draw a line to say when content questioning is required and when it is not.

Unknown Speaker: But there is such a line?

There is one but we can't draw it.

Mr. McLees: It's in the nature of a discretionary ruling that each case must be decided on its own facts and circumstances.

Unknown Speaker: Then the Constitution never requires it.

It's always discretionary.

Mr. McLees: Well, I think that what the Court must do in order to... to determine whether there's reason to question a juror's statement that regardless of what I read or heard in the media or on the street, I can judge this case fairly and impartially, is evaluate the other factors this Court spelled out in Murphy v. Florida.

And specifically in Murphy, this Court said that the timing of the publicity should be considered.

In this case, the vast bulk of the publicity occurred more than 3 months before Mu'Min's trial commenced.

In--

Unknown Speaker: Well, counsel, before the... what about a question like this.

What do you know about this case and where did you get your information from, to each juror?

Mr. McLees: --Well, Your Honor, that... that is essentially what Mu'Min sought to ask in this case.

Unknown Speaker: Not... not those words.

Mr. McLees: Not in those words, but that's the essence of what he sought to ask and--

Unknown Speaker: I don't... I don't think so.

I think he said it had gone just a step further.

Mr. McLees: --Well, we submit that that is not constitutionally required.

Unknown Speaker: I mean suppose somebody told this juror that I am a member of the adriscatory process of the police department and I know that that sucker is guilty.

Shouldn't the judge know that?

And my question would get that.

Mr. McLees: Your Honor, the... if we... if we accept a rule that that question itself must be asked in order to uncover that... that specific item of bias that Your Honor referred to--

Unknown Speaker: Yes.

Mr. McLees: --rather than the general questions which this Court asked... and by the way in... with respect to the publicity, the trial judge rephrased the question five different ways as far as whether they could impartial.

Unknown Speaker: My point... would you object to that phrase?

Mr. McLees: Would I object to that question, Your Honor?

Unknown Speaker: Well, answer it the way I suggested it.

Mr. McLees: I would certainly object to it being constitutionally required.

I don't... I don't believe it's constitutionally required, because it assumes... to say that that is necessary in order to assess the jurors' veracity when they say they can be impartial.

It assumes that you can't... that a juror's statements are inherently suspect and that's one of the problems with Mu'Min's theory is that it runs counter to one of the basic assumptions that our system of trial by jury is founded on.

This Court rejected the idea that a jury's statements of impartiality are inherently suspect in Smith v. Phillips.

Even in the context of a postverdict hearing where a juror was accused of misconduct, in a sense, in developing a bias during the course of trial.

Unknown Speaker: Don't the... doesn't the court instruct the jury that you can't use anything except what you hear in this courtroom?

Mr. McLees: I'm sorry, Your Honor?

Unknown Speaker: Doesn't the judge instruct the jury that you cannot use any information except what you hear in this courtroom?

Mr. McLees: Yes, sir.

Unknown Speaker: Doesn't he do that every time?

Mr. McLees: Yes.

Yes.

Unknown Speaker: Well, what's the difference of what I asked?

I asked what did you learn about this case outside of this courtroom.

Mr. McLees: Well, the difference is that by requiring that the court or counsel ask the juror to recount what they've heard or read or learned outside the courtroom, you assume or you imply that the juror's statement that I haven't heard anything... I don't know anything about this case that I can't put aside and be fair and impartial.

The juror's statement when he comes into court, as a matter of fact, that I have no opinion about this case, which all the jurors in the panel in this case said, except juror Syphrett, hold--

Unknown Speaker: Yes, but that overlooks the possibility the juror may really believe that and they may have heard exactly as Justice Marshall posits that my neighbor is a... works for the police department and he told my wife this guy is definitely guilty.

I know enough not to pay any attention to that.

So... and this is his own thought process, and I'll say I can't.

But if you heard that as a judge you'd probably excuse that juror even though he sincerely says I think I can put it to one side.

Mr. McLees: --Well, I think that as a trial judge in dealing with that situation, the judge needs to consider the demeanor of the juror.

Unknown Speaker: Well, that's right.

Well, isn't the nature of bias and impartiality often the fact that the person does not recognize that he or she has the bias?

I mean, it's not just active animosity toward a party that we're interested in.

But it's... are those assumptions that the juror is not maybe even sure of... that he holds until he's examined about them or she's examined about them with some specificity.

Or am I wrong about that?

Mr. McLees: Well, of course, the jurors in this case were aware of what they had read or heard about the case.

It's not a situation where a juror needs to be confronted with some unknown item of information about the case which might engender or trigger a bias that they're not aware of with general question.

What they... the jurors in this case come into court aware of what they have read or heard and it's just a question of whether the court is going to be required to make them reveal that.

As far as--

Unknown Speaker: All that you've just said doesn't become true, however, any more if the publicity is more recent than 3 months.

Now, when else doesn't it become true?

Mr. McLees: --I didn't... I didn't mean--

Unknown Speaker: Well, I'm trying to find out what other... in what other cases Virginia has to individually question the jurors in isolation from the others.

You say if it's very recent publicity, the court would have had to do it.

Mr. McLees: --No, Your Honor.

I said--

Unknown Speaker: No?

I thought that's what you said.

--the recency of the publicity if one of many factors that the court should consider.

And must consider under the Constitution, right?

Mr. McLees: --In determining whether the court has reason to doubt a juror's assurances of impartiality.

Unknown Speaker: So we're just going to have to look at it case by case and decide whether the Constitution requires it or not?

Mr. McLees: Not the Supreme Court, Your Honor.

Trial courts will, and trial courts do, as a matter of fact, as a--

Unknown Speaker: And reviewing courts will review them on constitutional grounds.

What other factors?

How recent the publicity was.

What else is there?

Mr. McLees: --The nature of the publicity itself... what it reflected in the publicity.

In this case, the publicity is factual in nature to the extent that there was outrage expressed.

It was expressed at the Virginia Department of Corrections, and Mu'Min's counsel tried to turn that to his advantage in arguing in mitigation, putting the Department of Corrections on trial and taking the heat off his client.

Another factor that should be considered is the atmosphere of the community.

There was no demonstration in this case of a hostile community atmosphere.

This is a large, busy suburban community and they have other things on their mind besides this one very tragic case.

The Court should consider the trial atmosphere itself.

In this case, the trial atmosphere was impeccable.

The Court should consider the number of jurors in the voir dire process who express some kind of negative opinion about the defendant or about the case.

In this case, the only juror who expressed a negative opinion was juror Syphrett and he was excused for cause by the trial court without even giving the Commonwealth the opportunity to try to rehabilitate him.

Unknown Speaker: I agree that the judge who's conducting the trial should consider all those things in his discretion, but as I understand your argument, a reviewing court should consider all those things in deciding whether the Constitution has been violated by not conducting individual interrogation.

Mr. McLees: Well, I think--

Unknown Speaker: That's the position you want us to enunciate.

Mr. McLees: --Not exactly, Your Honor.

Our position is that an abuse of discretion may, in some conceivable cases, amount to a constitutional violation, but that in the normal... in the normal case that is not the case.

The other factors that are involved are the demeanor of the jurors during voir dire.

In this case, the trial judge was sensitive to the demeanor of the jurors.

That's demonstrated by the voir dire of juror Haines, who gave all the right answers in black and white on the record, but the trial judge detected something in her demeanor that suggested she wasn't being as candid as she might be and excused her for cause.

Unknown Speaker: Which indicates that some specific questions are helpful to the fact finder.

Mr. McLees: That's correct, Your Honor.

And many specific questions were asked in this case on factors where the trial judge in his discretion found that they were appropriate.

The trial court asked two questions addressing the racial aspects of the case.

They asked a question addressing the aspect of the case as a sexual crime.

They asked a question about jurors' attitudes toward people of the Islamic faith.

And the jurors were candid and open.

They didn't feel reticent in responding to these.

We've got two jurors speaking up and saying they didn't approve of the Islamic faith.

We've got Mr. Syphrett saying straight out that he can't be fair.

We've got Ms. Deiotte saying that she thinks she can be fair, but you never really know until you test it.

And she was excused for cause, which does not appear in the joint appendix, but on page 329 of the appendix from the supreme court of Virginia, it shows that she was excused for cause.

Unknown Speaker: Could you answer a few brief questions about Virginia procedure?

Is it either the practice or permitted by statute to inquire of the jurors after the trial was over as to sources of bias?

Were the jurors in this case questioned by counsel?

Mr. McLees: They... on the record, they were not.

I have--

Unknown Speaker: Was anything offered in postconviction proceedings to show that they had been questioned?

Mr. McLees: --This is direct appeal, Your Honor.

There's been no--

Unknown Speaker: There have been no... there have been no postconvictions?

Mr. McLees: --No, no, sir.

There has been nothing.

Unknown Speaker: And the other question I have is... does the trial court always ask the questions?

Mr. McLees: No.

The trial court always asks questions, but the trial court is required by law to permit counsel to ask questions also, and in fact, this case the trial court permitted counsel to ask extensive questions.

Unknown Speaker: To ask the questions directly... not just to submit the questions?

Mr. McLees: Exactly.

Yes, sir.

Unknown Speaker: Thank you.

Mr. McLees: In this case, the defense counsel asked many questions in panels of four and three and--

Unknown Speaker: I know, but he wouldn't let them to inquire specifically what they had read or seen?

Mr. McLees: --No, Your Honor.

No, that's the... that's the controversy.

Unknown Speaker: He cut that off.

Mr. McLees: Yes, sir.

Now, although when the trial court found it necessary and--

Unknown Speaker: Especially, he didn't want... he didn't want anybody asking what the... what the juror had heard from his or her spouse.

Mr. McLees: --Well, he didn't find it necessary to go into that in order to determine that he believed those jurors when they said they could be fair.

He... when the trial court found it helpful or necessary to go into content questioning, in this case he did so.

With juror Walters... now each of these jurors in panels of four was questioned by defense counsel about whether they had discussed the case with anyone... so they addressed not just, what have you read in the newspaper, but they knew who had or had not discussed the case which of course involved... would involve information that wasn't in the--

Unknown Speaker: How far do you allow him to go in that... when they said, yes, we have discussed it with somebody?

Mr. McLees: --In one panel, several gentlemen indicated they discussed it with their wives when they'd read about it in the newspaper and the trial judge said, we don't need to go into the content of that.

In another panel, Ms. Walters indicated... was the only one in another panel who indicated that she'd discussed it with someone.

She was a school crossing guard employed by the Prince William County police and she said she had discussed it with her lieutenant, who was her supervisor in her job.

And in that case, the trial court and defense counsel both inquired into the content of the conversation she'd had with her supervisor and at the conclusion of that examination, Mu'Min elected not to challenge Ms. Walters for cause and didn't use any peremptory challenge against her either.

And in fact, Ms. Walters did sit and try this case.

In other panels, where... in one panel a juror indicated that he had discussed the case just casually and the judge didn't feel it necessary in that situation to go into the content of his discussions.

In another panel, a woman said that she had discussed the case with several people and she was excused for cause for a different reason.

And in a final panel, juror Deiotte indicated that she had discussed the case with certain people.

Ms. Deiotte was employed in the news media and eventually she was excused for cause, because she... she said that she knew one of the witnesses in the case and she really felt that that might influence her impartiality.

Unknown Speaker: Is she the one who had a paper to get out?

Mr. McLees: Yes, sir.

At the conclusion of the small panel voir dire, Mu'Min did not renew his motion for change of venue, and we submit that this may be indicative that in his mind at that point, having concluded the entire voir dire, concerns about the impartiality of the jury were not uttermost in his mind.

Now, the assumption that is involved in Mu'Min's position that you can't trust what a juror says... if a juror says, I have no opinion about a case... is disproven by the kind of candor he shares--

Unknown Speaker: Well, I don't think it's his position that you necessarily can never distrust... that you can never trust... a thing inherently distrustful.

His position is that you can't assess it in fact, without knowing more than you... than this judge was willing to inquiry into.

Mr. McLees: --Your Honor, our position is that jurors... I think the law is well established... is that jurors are presumed to be impartial and it is incumbent upon the defense to demonstrate partiality.

And in order to do that, one of the things that they must do is demonstrate some reason to... why the trial court should distrust a juror's statement about whether or not they have an opinion in the case, and that simply was not done in this case.

The amicus brief suggests that jurors come into court eager to please the trial judge and eager to give the right answer and seem to be fair.

We suggest that jurors are real life people with real life problems of their own.

And they're called into court at cubstantial inconvenience and with... to hear a grisly murder case for a week with the ultimate wrenching prospect of deciding whether an individual should live or die.

They don't have a particular incentive to sit on jury duty.

Their practical incentives far counterbalance any kind of inclination they have to give some answer that theoretically the trial judge suggests; and in fact, the record in this case shows the trial judge didn't suggest that he wanted the jurors to say they could be impartial.

In five different ways he gave them the opportunity.

He rephrased the question and gave them the opportunity to say that they could judge the case fairly... they could not judge the case fairly.

And as soon as one or more of them did, he excused them for cause.

We submit that the adoption of this rule would go farther than this Court gone in requiring voir dire questions in the past.

In Turner v. Murray, in Ham v. South Carolina, where this Court has required specific types of voir dire questions, what the court has required is that the juror be confronted with a possible source of bias and asked to search their conscience and state whether they would be subject to that bias or not.

The question mandated by the court in Turner was the defendant, Willy Lloyd Turner, as a member of the Negro race.

The victim, Jack Smith, was a white Caucasian.

Will these facts prejudice you against Willy Lloyd Turner or affect your ability to render a fair and impartial verdict based solely on the evidence?

And the question mandaeed... the questions mandated in Ham v. South Carolina were similar.

What Mu'Min wants to do here is far more intrusive.

What he wants to do is search the juror's memory for facts and then dispute the juror's statements about the juror's reaction to those facts.

That kind of intrusive inquiry has never been required by this Court and we submit that it should not be.

The effects if it were would be undesirable on the American jury trial system.

It would require individual voir dire in one method or another in every case to prevent other jurors from being exposed to this information that one juror may have that supposedly would be contaminatory.

There would be no principled way to restrict the inquiry to simply cases of pretrial publicity as Justice Stevens' question I think brought out and as Mu'Min conceded at trial, the same logic would apply in other situations.

In death penalty qualification, if a prosecutor wants to probe a juror's assurances that they can follow the law and consider imposing the death penalty--

Unknown Speaker: Do you think it would make any difference if the juror had been in the store and seen it, but didn't think that would affect his prejudice... seen what happened?

Mr. McLees: --It may be something that the trial court would want to consider--

Unknown Speaker: Whether or not the juror was actually a witness.

Mr. McLees: --in deciding whether content questioning would be desireable or would be helpful in the case.

Unknown Speaker: But not... you don't have to... you're not required to find out whether he saw the crime committed.

Mr. McLees: Well--

Unknown Speaker: That might be the source of one of these juror's information for all we know.

Might have been in the store and watched the whole thing take place, but I can be fair because I know what happened.

Mr. McLees: --Certainly the trial court in this case asked the jurors if they received information about the case from the news media or--

Unknown Speaker: They'd say yes, they did, but I can--

Mr. McLees: --The trial court asked if the juror had an opinion about the case.

And that is a crucial... I think that is a crucial aspect of voir dire... is determining if a juror has an opinion.

None of the jurors in this case indicated they even had an opinion about the case, much less an opinion that they could set aside... that they could not set aside and judge the case on law and the evidence, except for juror Syphrett who said he couldn't be fair and he was excused.

So a crucial question is whether the juror has formed an opinion about the case.

If Mu'Min's rule is adopted, it will apply to death penalty qualification.

The prosecutor will be able to explore the content of a juror's religious beliefs about capital punishment in order to assess their veracity.

A defense attorney in examining a juror whose been a victim of a crime may be able to probe the juror... the content of the juror's memories of the pain and fear and humiliation of their own crime in order to assess their ability to be fair.

In these and many other--

Unknown Speaker: --Thank you, Mr. McLees.

Mr. McLees: --Thank you, Your Honor.

Chief Justice Rehnquist: Your time has expired.

The case is submitted.

Unknown Speaker: The honorable court is now adjourned until Monday next at ten o'clock.

Attribution:

The OYEZ Project

Featured:

Holland v. Illinois - Oral Argument

Fri, 09 Jan 2009 14:49:19 +0000

Case:

Holland v. Illinois

Media File:

88-5050_19891011-argument.mp3

Related Transcript:

1989_88_5050_argument.xml

Transcript:

Argument of Donald S. Honchell

Chief Justice Rehnquist: We'll hear argument next in No. 88-5050, Daniel Holland v. Illinois.

Mr. Honchell, you may proceed whenever you're ready.

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

Daniel Holland in this cause faced criminal charges in the Circuit Court of Cook County, Illinois, and he elected trial by a jury, as assured by the Sixth Amendment to the United States Constitution.

However, in the process used to select that jury, the state used its peremptory challenges to exclude both of the eligible blacks from service on the jury.

This case, therefore, involves the need to provide white defendants with a remedy to challenge such a process.

A process in which black prospective jurors are removed by a peremptory challenge on the unjustified false assumption that as blacks they are unqualified to serve, endangers recognized essential values of jury trial, as contemplated by this Court under the Sixth Amendment.

This Court now prohibits the unfair selection of the venire based on the false assumption as to disqualifications of blacks due to group membership, and the Petitioner simply asks that this court equally prohibit the unfair process in the voir dire selection.

This Court has barred the state from interfering with the fair possibility that the cross-section reaches the petit jury at the outset of the jury selection process in the formulation of the jury roles and the jury rosters.

This Court has assumed that with the random selection the fair possibility will reach the venire from which the petit jury will be selected.

And this Court simply cannot allow the Prosecutor to do in a single trial what the government is barred from doing on the basis of the decisions of this Court.

Unknown Speaker: Well, would you say a prosecutor could challenge two black jurors out of six black jurors?

Say there is a 12-man... 12-person jury and six of the... six of the jurors drawn from the... six of the petit jurors drawn are black, could the prosecutor strike two of them as long as the resulting jury represented a cross... a fair cross-section?

Mr. Honchell: The issue in the case is protecting the process of selecting the jury, and in that situation, where individuals are removed by peremptory challenge on the basis of their race on the false assumption that they are unqualified, that is injury to the process and--

Unknown Speaker: No.

That's not a fair cross-section argument.

That's an equal protection argument of some kind, isn't it?

Mr. Honchell: --The fair cross-section argument has to be understood in a... in a very broad perspective.

Unknown Speaker: But what if the prosecutor says, I'm interested in having a fair cross-section jury?

All the... all the... suppose just by chance the jury turned out to be all black?

I want a fair cross-section jury.

Could he do that or not?

I guess not, on your thesis.

Mr. Honchell: Yes.

He would be barred from using peremptory challenges to remove otherwise qualified jurors, black jurors, on the false assumption that because of their race they're not qualified to serve.

Unknown Speaker: Well, how does that give you a fair cross-section jury if... if... Justice White's hypothesis is that out of 12 there are 12 blacks?

Mr. Honchell: If the... if the prosecutor is allowed to use his peremptory challenges simply on the basis of his false assumptions and his biases, it is a severe injury to the selection process.

And that is the key to--

Unknown Speaker: But the selection process need not result in a fair cross-section in your view?

Mr. Honchell: --Well, that is... that is true.

Yes.

The... the... issue is the prohibition against misusing peremptory challenges to remove the fair possibility of a cross-section on the jury.

Now, a defendant would have the obligation to demonstrate that the prosecutor's removal was based on the membership and therefore was based on the prohibited false assumptions.

And it may... in possible situations he would be unable to make that demonstration from all the facts and circumstances that the challenges were based on race.

Unknown Speaker: You're not making a claim here, I take it, that there is some systematic exclusion of black jurors throughout the county?

Mr. Honchell: That... that... that's correct.

There is no evidence in... in the record on this... on this... in this case.

The--

Unknown Speaker: That claim would be open to you under existing precedence, presumably, if the facts warranted it?

Mr. Honchell: --Yes.

The--

Unknown Speaker: With respect to the venire.

Mr. Honchell: --Yes.

The issue in this case is the process of... of choosing from the venire those jurors who are going to serve as the truly representative voice of the community.

And it's an essential, given this Court's emphasis on what a jury must do, the function that a jury serves, and the process of selecting that jury.

Unknown Speaker: Does this objection apply only to racial distinctions?

Mr. Honchell: The... the issue of... of what groups it... it... it... it would apply to is... is an open question.

It's... it's... it's difficult, as this Court recognized in Lockhart v. McCree, to specify what groups qualify for examination.

And we think that it's a... it's... it's an analysis that has to be limited.

Unknown Speaker: Of course, one way... one easy way of limiting it is to... automatically is to say that only blacks--

Mr. Honchell: Yes.

Unknown Speaker: --can object to the elimination of blacks.

That... that... that you know--

Mr. Honchell: Well, yes, that's been done, and... and--

Unknown Speaker: --That eliminates a lot of problems, doesn't it?

But you're saying anybody can object to the elimination of any group, right?

Mr. Honchell: --We're saying in this case that whites have the authority to object to blacks.

Unknown Speaker: Right.

And I suppose rich people could object to the exclusion of rich people.

Not only the... I mean, could object... not only to the exclusion of rich people, but even to the exclusion of poor people.

Mr. Honchell: If rich people and poor people are... are distinctive groups for purposes of determining damage to the system from its removal on the basis of that characteristic, and whether there is a showing that they were removed on the basis of that characteristic.

So the quest is really twofold.

First of all, are we dealing with the distinctive group whose removal should be of concern, and, secondly, is there a demonstration that the removal was based on that membership?

Unknown Speaker: How do we go about deciding the first question?

Mr. Honchell: I'd... I would refer the Court to Lockhart which is a... which is an indication that it's difficult because this Court never said in Lockhart what groups or what distinctive--

Unknown Speaker: Well, there's also rather strong in Lockhart, isn't there, that the fair cross-section applies only to the venire and not to the panel?

Mr. Honchell: --Yes.

Yes.

That is a... there is a discussion there, but we would argue that that has... has misconstrued what we contend is a fair cross-section requirement because that seems to suggest that there is a mandatory affirmative duty to include, which is unworkable and unsound to apply to the petit jury.

And we're certainly not asking that that concept be used.

What we propose as a fair cross-section requirement is that assuming that there is the affirmative obligation at the outset, that there remain the fair possibility thereafter that what this Court has considered worthy of inclusion last throughout the system and actually sits on the jury.

So, we would argue that the fair cross-section requirement is prohibitory, that the prosecutors are prohibited from removing cognizable groups or distinctive groups on false assumptions because it minimizes the fair possibility of serving on the... on the jury.

But going to the assumption that there is such a fair cross-section argument, the Court in Lockhart did decide, attempted to decide and define what a distinctive group was.

The Court--

Unknown Speaker: Excuse me.

What are... what are false assumptions?

You say false assumptions.

When you're talking about a venire, I... I suppose you can say there are false assumptions when you're talking about any group.

You... the only basis for excluding is you think that they're... they're too biased or too stupid or something else, to be jurors at all.

But when you're down to a particular case, what is wrong with a prosecutor striking a particular people because they're rich?

I mean, the prosecutor says, these are rich defendants; I think I'd stand a better chance of getting a... getting a conviction if I excluded rich people, if I had a poor-person jury.

The prosecutors make judgments like that all the time.

Mr. Honchell: --Yes, but the... the false assumption is--

Unknown Speaker: So it's not a false assumption then.

Mr. Honchell: --There is a false assumption that all rich people are necessarily biased and will be biased in this case and, therefore, I may... I may exclude a person simply because he--

Unknown Speaker: He doesn't exclude that at all... that isn't his assumption at all.

His assumption is the chances are better than even.

It's not at all... the chances are better than even that a... that a rich person will be more sympathetic to a rich defendant and he therefore wants to strike the person.

Isn't that exactly what... what peremptory challenges are all about?

Mr. Honchell: --That's... that's... that's correct, but the question becomes is that a constitutional peremptory challenge as this Court has come to define it most especially in the Batson case.

The assumption in Batson was, well, the black defendant is unqualified to serve; he'll... he'll be more partial to a black defendant.

Therefore, I can properly use a peremptory to strike a black.

And this Court has said, no, we... we cannot allow prosecutors to make generalizations and generalities simply on this distinctive qualification.

Unknown Speaker: If you're really... if you're really honest about your principle, peremptory challenges in general... the whole notion of a peremptory challenge is contrary to having a fair cross-section, isn't it, because the whole purpose of it is to eliminate a fair cross-section and somehow load the jury in such a way that it's more likely to be in your favor.

Isn't that exactly what a peremptory challenge is for?

Mr. Honchell: The... the proper use of peremptory challenge is... is to supplement challenges for cause in order to remove those who are for particular reasons that the prosecutor simply cannot articulate, or, more importantly, cannot convince the judge... renders this person unqualified to serve.

Unknown Speaker: But those reasons are very often generalizations about... you... you... you can't know the person individually so you make generalizations, often on the basis of race, religion, appearance, you know, manner of dress, job.

And, you know, it may be a false assumption, but the whole system is built on generalization.

Mr. Honchell: Yes, and this is the tension between peremptory challenges and the fair selection of the jury.

And this Court must integrate those two opposing concerns.

There is a recognition from this Court when the peremptories are used against blacks that the defendant is entitled to demonstrate that the decision to exclude was based on a false assumption that just because the person was black... and for no other reason... nothing having to do with his income, which his status, with his marital state... with absolutely no other evaluations whatsoever you decided that this person cannot serve on the jury because he's black.

This Court said, well, that's not a constitutional peremptory challenge because there are limitations that are presented by this use of the peremptory challenge.

There are dangers, there are limitations and frustrations that are introduced which this court must correct.

And under that analysis and under that assumption this Court simply should not allow peremptory challenges to overrule, to override the commitment of this Court to a selection process which is designed to assure the fair possibility that the cross-section will actually serve on the jury.

Unknown Speaker: Incidentally, in your hypothetical I noticed you used martial status and wealth as being permitted grounds for disqualification.

Mr. Honchell: Something beyond... I certainly didn't mean those to be decisive or necessarily--

Unknown Speaker: It certainly could be argued that those are cognizable groups that come within the rule that you seek--

Mr. Honchell: --Yes.

Unknown Speaker: --to have the Court adopt--

Mr. Honchell: Yes.

Unknown Speaker: --is it not?

Mr. Honchell: Yes.

And the... this Court need only decide the cognizable group of blacks.

But I simply meant to illustrate that in order to use the peremptory--

Unknown Speaker: Well, how can we do that?

What principle could you recommend to us or propose that allows us to say that only blacks are protected by the fair cross-section requirement?

Mr. Honchell: --It would be based on this Court's recognition that the removal of blacks by peremptory challenge suggests that prosecutors are misusing the challenges to remove on grounds of race.

There has been--

Unknown Speaker: Well, that gets back to Justice White's original question, that this isn't the fair cross-section argument you're making at all.

It's simply an equal protection argument.

Mr. Honchell: --The argument has elements of equal protection analysis to it because there is the concern for the excluded jurors.

But there's also concerns beyond the equal protection analysis that benefits the jurors.

The concern for the defendant's right to have his guilt or innocence judged by a common sense interplay of all the values and perspectives of groups in the community, the value of the system in having it operate in a... in a manner which enhances its dignity.

The concern of other members of society that they are able to look at this process of jury selection and have confidence in the system, give it support, allow it to function with the full community backing.

So, there are these factors which... in addition to the concerns for the feelings and attitudes of the excluded jurors.

Unknown Speaker: I suppose you would apply this same approach to civil trials in the federal courts?

Mr. Honchell: If this Court could determine that the Sixth Amendment applied in the civil context, that in fact the Sixth Amendment was applicable to civil--

Unknown Speaker: How about the Seventh Amendment?

Mr. Honchell: --The Seventh Amendment demonstrates that there is a--

Unknown Speaker: Certainly there is a right to a jury trial.

Mr. Honchell: --a right to a jury trial, yes.

Unknown Speaker: In the federal courts.

Mr. Honchell: The difficulty... the difficulty, unfortunately, is that the Sixth Amendment... or not so unfortunately... but the difficulty is that the violation under the Sixth Amendment comes from the governmental interference, whereas under the Seventh Amendment there would be interference by a second private counsel or an opposing litigant as--

Unknown Speaker: Well, I know.

But your rationale would surely apply.

Nobody should be able to take a person off the jury on some... just because he figures any member of this group is incompetent.

Mr. Honchell: --The argument we present is that certainly the government is not entitled to do so.

And there is certainly a value to applying this to the civil... civil branch.

It's certainly not an issue that's been developed in this case and it may need to await analysis and argument in civil courts.

Unknown Speaker: Counsel, what do you do with Negroes who are passing for white?

How do you get to them?

Mr. Honchell: It puts the burden on the defendant to demonstrate that this is a member of the... of the Black race.

And, in addition, he's being excluded on grounds of membership in that race.

If the defendant can't demonstrate that these individuals are members of what he argues to be and persuades the court to be a distinctive group, then there's no analysis on their removal.

So, it would depend on the local judges who are able to determine from all the facts and circumstances whether these are members of the congnizable group or the distinctive group.

Unknown Speaker: It's a fast way to get an all-white jury, isn't it?

Mr. Honchell: The concern is not what kind of jury is gotten.

The concern is the process in getting the jury itself.

And we're advocating that this Court simply protect the process of selecting the petit jury from a venire which is already protected by this Court's decisions selected from the jury roles, which is also protected by this Court's decision.

So we've certainly discovered the weak link in this process of jury selection, because this Court has insisted that the system function to assure an eventual jury which will protect the defendant as a hedge against the prosecutors and the government, against arbitrary power by ensuring the common-sense views of the community, by assuring that the system functions and does so with respect.

And yet, the prosecutor, despite this Court's commitment to that kind of a jury selection system, can simply use a peremptory challenge and thereby evade at the petit jury at the voir dire stage what this Court has demanded as a ban at earlier stages of the jury process.

Unknown Speaker: That stretches what we've said so far.

I mean, it certainly would be a rational system to say that you have to have a fair cross-section for the venire simply to make sure that both sides enter into this lottery that is peremptory challenges on a fair basis, a level playing field.

You start off with a venire that is a fair cross-section.

After that, each side gets its peremptories.

We're not insisting that a fair cross-section come out of the thing.

That's very unlikely with only 12 people on the jury anyway.

Mr. Honchell: Yes.

Unknown Speaker: But you've got to start off with a venire of a fair cross section and then each side can then use its peremptories the way peremptories are always used on generalized group bases.

I mean, that's how peremptories are used.

Why isn't that a perfectly rational system?

I mean, it doesn't logically follow that just because we say the venire has to be a fair cross-section the jury has to be.

Mr. Honchell: The Court should conclude that the purpose of putting them on the venire is not simply for the symbolic value of saying that now they've reached the... that stage in the case and, therefore, we're free to remove them thereafter.

Unknown Speaker: No.

The purpose is to make sure that both sides start off on a level playing field.

Mr. Honchell: Yes.

Unknown Speaker: After which they can both take their peremptories--

Mr. Honchell: Yes.

Unknown Speaker: --anyway they want.

Mr. Honchell: Then the question becomes how peremptories can be constitutionally used.

If they can be used, or if they are used, or if the argument is that they are being used to remove blacks in this case simply on the grounds of race, this Court should conclude that that is an unconstitutional use of the peremptory challenge in the trial of a white defendant, just as it's an unconstitutional use of a peremptory challenge in the trial of a black defendant because it defeats the possibility that the fair cross-section which is sitting on the venire waiting to serve actually reaches the petit jury where it will have value.

There is more than symbolic value to having members of mixed races on the petit jury.

It's a significant benefit to the defendant in protecting himself against the prosecutors and the arbitrary judges.

But, moreover, the process of selecting that jury has a value that must be protected.

It's a way to enhance the jury system so that it functions in the community so that the community has confidence in the government for which it must... with which it must live.

Unknown Speaker: What do you think the theory in Batson is that permits the black defendant to challenge the use of peremptories against blacks?

Is that an equal protection argument?

Mr. Honchell: Yes, your Honor.

Because of the happenstance of that case with a black defendant and a black juror, this Court determined that that was a valid--

Unknown Speaker: The denial of equal protection to the defendant?

Mr. Honchell: --Yes, by... well, no, the Court focused in on the equal protection of the black juror, which the defendant was given standing because he was a member of the same race, to raise as an argument to overturn the conviction.

And, therefore, it--

Unknown Speaker: Well, why shouldn't... why shouldn't a... why shouldn't a white defendant have that same privilege and without even getting to the fair cross-section argument?

Mr. Honchell: --The difficulty, of course, is that he lacks the traditional standing aspect because he's not a member of the same race.

Unknown Speaker: Well, I know, but he's... he's a defendant and that's all you're really saying about the black, is that he's a defendant and you're giving him standing to remedy this denial of equal protection to the juror.

Mr. Honchell: Yes.

Unknown Speaker: If that's your... that's your theory?

Mr. Honchell: That's... that's one possible outcome.

But this Court would have to overlook the standing element or find that nevertheless, despite the standing--

Unknown Speaker: It sounds to me that that might be an easier argument than the--

Mr. Honchell: --Undoubtedly.

Unknown Speaker: --You're driving uphill in this case.

Mr. Honchell: Well, we're certainly not precluding the equal protection argument as being persuasive in this case because in effect there's that argument and there's more, because there are Sixth Amendment--

Unknown Speaker: Was your case tried after Batson came down?

Mr. Honchell: --No.

No.

The trial did not apply to Batson, although the case was on direct appeal at the time of Batson.

And the issue that was raised in the lower court was the denial of Sixth Amendment on the basis of Taylor versus Louisiana.

Unknown Speaker: Well, was a Batson claim raised in the lower courts?

Mr. Honchell: No.

No.

The issue was Sixth Amendment.

Because, of course, the defendant relied on Commonwealth versus Soares and People versus Wheeler, the local state cases that had utilized a Sixth Amendment claim because they couldn't rely on Fourteenth Amendment under Swain.

So, it was presented as Sixth Amendment.

And it's... it's an appropriate Sixth Amendment case because it presents all of the harm that the equal protection cases condemn, plus additional harm that the Sixth Amendment cases protect.

Therefore, this... this Court can utilize the Sixth Amendment to demonstrate that white defendants are entitled to complain if they have evidence that they offer that members of the black community, the distinctive group of blacks, are being removed on the grounds of race.

And, again, if the defendant is unable to succeed in either of those points, then he would not prevail.

So this is simply giving the defendant the remedy to deal with an issue that he is now powerless to raise.

In the Lockhart case, the Court assumed that the defendant was able to point to a particular group, that the particular group had certain immutable characteristics of race, of gender, of ethnic background.

It cited blacks, women and Mexican-Americans.

So, those are indications of the types of groups that this Court would protect.

Unknown Speaker: Well, didn't the Illinois Supreme Court in this case say that Batson did not apply in this situation?

Mr. Honchell: Yes, because the defendant was white.

Unknown Speaker: Yes.

So, the Batson issue was raised and decided in the Illinois Supreme Court.

Mr. Honchell: In the Illinois Supreme Court.

It was not raised in the trial court.

Unknown Speaker: Well, I know, but it's raised--

Mr. Honchell: Yes.

Unknown Speaker: --and it was decided.

Mr. Honchell: Yes.

Unknown Speaker: Are you relying on it here?

Mr. Honchell: No.

We didn't pursue the Batson argument because we... we have concluded that we lacked the standing.

But that shouldn't prevail... that hopefully will not dissuade the Court if it prefers to use an equal protection result.

Unknown Speaker: We very rarely do that if the lawyer is unwilling even to say he relies on it.

Mr. Honchell: Well, we didn't--

Unknown Speaker: You haven't argued it yet.

Mr. Honchell: --We haven't argued it.

No.

But the... but we've argued that the essence of the objection, or of the problem in the case is an equal protection.

But we've put it in the context of a Sixth Amendment right.

So, the issue of a denial of equal protection has been presented because blacks are being removed on grounds of race.

But we've presented as a remedy, a Sixth Amendment contention because that harms the jury selection system which the defendant does have standing to raise.

So, the difficulty also, of course, is that this Court decided Batson--

Unknown Speaker: The standing issue is really quite interesting because, as Justice White points out, Batson wasn't a member of the class that was at issue in the case.

He happened to be of the same race, but the class was prospective jurors.

Mr. Honchell: --Yes.

Unknown Speaker: And I don't know whether you're assuming that he had standing because he was of the same race or because he was a defendant who objected to the adverse consequences upon him of a violation of the Equal Protection Clause against others.

Mr. Honchell: Well, the impact on the defendant of a violation of the Equal Protection Clause would be a Sixth Amendment violation because he has an interest in his jury serving as the conscience of the community which is denied if the fair possibility of the cross-section is frustrated.

And the equal protection argument would concentrate on the interests of the juror, which being of the same race, he had the authority to... to contend or to challenge.

So, this is a broader issue because there are broader interests at stake of a defendant to have his jury chosen and serve in a fair system.

So, because of the emphasis that this Court has put on the process of choosing the jurors, that this Court must have equal concern with the process of choosing the petit jurors.

That if this Court means to make meaningful its emphasis on the fair selection process, it must do as well on the petit jury because that's the only jury that counts as far as the defendant is concerned.

So we do ask your Honors then to recognize the right whenever a defendant, whatever his race, demonstrates that members of the black community are being removed on grounds of their membership on the false assumption that because they're black they're unqualified to serve in a case, that he be able to make an objection, attain a hearing, and prevail on his grounds.

I would request the rest of my time be reserved for rebuttal, but we do ask your Honors for the relief sought.

Argument of Inge Fryklund

Chief Justice Rehnquist: Thank you, Mr. Honchell.

Ms. Fryklund, we'll hear from you now.

Mr. Fryklund: Mr. Chief Justice, and may it please the Court, the question presented today is whether the Sixth Amendment regulates the use of peremptory challenges during voir dire.

Our position is that it does not.

The Sixth Amendment guarantees the right to trial by jury, which as this Court has said in numerous decisions, the fundamental purpose of trial by jury is to prevent oppression by the government.

And, furthermore, we're guaranteed not only this trial by jury, but trial specifically by an impartial jury.

So, I believe the focus of the Sixth Amendment is on this end result of an impartial jury.

Counsel suggested in the course of his argument today that the outcome of the composition of the jury is somehow less important than the process and that this Court should be focusing primarily on process.

I think that that is absolutely incorrect.

We must always be looking at the touchstone of the Sixth Amendment, which is the impartial jury.

The Sixth Amendment purposes of achieving an impartial jury are achieved in practice by a sequence of stages that begins with the broadly-based jury pool which must be drawn from a cross-section of the community.

And the process ends sometime later in an individual courtroom in which a prosecutor and an individual defendant and his attorney... two adversaries... are mutually engaged in the process of picking an impartial jury of six, or, as in Illinois, 12 jurors.

And the choices at all stages of the process are, of course, constrained by the Equal Protection Clause.

Now, the broad... we believe that the very broad mix of all the distinctive groups on the jury pool is directly and casually related to the overriding purpose of preventing oppression by the government.

Given that it's the government which by definition is a party to every criminal case, which is solely in control of all the mechanisms of jury summoning and recruitment, it is vital that the government not be able to manipulate or gerrymander the jury pool.

Thus, at the time the government is making its decision to indict, which usually comes some weeks or even months ahead of the actual trial date, the government is constrained in making its charging decision by the knowledge that it has no control over who is going to be able to appear on the venire, and potentially any member of the community could appear to try the case.

I think this is why even if the particular defendant ultimately opts for a bench trial this broadly-based jury pool has served a very vital function for keeping the government honest.

As Justice Scalia pointed out earlier, if the jury pool is broadly-based with nobody in particular eliminated, at the time the two parties reach the final stage of voir dire, they're both on a level playing field.

Neither has been able to bias the direction of the venire.

Then, when the trial date for an individual case arrives and the two individual parties enter the courtroom, the government is no longer in control of the process.

The government has switched hats.

Now the government is one party in a particular case.

And at this stage the judge exercises... or, removes jurors for cause, and the two parties... and in Illinois the two parties have the same number of peremptory challenges, it's now seven... the two parties jointly act to pick a jury.

And they do this by each side acts to remove the individual people whom it suspects are going to be least favorable to consideration of its own side.

It is our position that at this stage, in the midst of voir dire, that the demographic composition of the jury which is ultimately chosen, or the composition of the array of people who have been excused, is absolutely irrelevant to any purpose which is protected by the Sixth Amendment.

Therefore, whether petitioner is talking about having a quota of some representatives of the community on his petit jury or, as he spoke in his brief, about a fair possibility that some particular distribution would obtain, or whether, as he emphasized in argument today, that we have to look to someone's motivation for particular choices... however it is he phrases, we believe that under the Sixth Amendment his claim fails at the very threshold because the group membership of individual impartial people is absolutely irrelevant to anything and should not be the basis for a cognizable claim.

In fact, since this goal of impartiality is logically independent of the race, socioeconomic class, ethnic origin, or any other personal characteristic of the individual jurors, any sort of rule of selection or any prohibition on what the government can do in selection that's based on anything other than impartiality is bound to go counter to the expressed values of the Sixth Amendment which is the goal of impartiality.

So, our position is the only time at which a defendant is entitled to a fair cross-section of the community is the point at which the names go into the box for selecting the venires.

That's the end of it.

Now, coming back to this overriding purpose of achieving impartiality.

Petitioner Holland here has never contended that there was anything wrong about the way the Cook County jury pool was selected, and he has never contended that there was anything impartial about the jury of 12 that actually convicted him.

In fact, in this case, given that he had five peremptory challenges left over at the time his jury was sworn, we know with certainty that he was perfectly satisfied with the impartiality of his jury.

What he is telling us now is that he wants not just impartiality, but impartiality plus.

Now, plus race, ethnic origin, whatever.

And I submit that there is nothing in the Sixth Amendment that entitles him to impartiality--

Unknown Speaker: Well, he's not really saying that.

He's saying plus the inclusion of all those races that he wants included.

He's not been willing to extend this principle to the defendant, or at least leaves that an open question.

He just wants us to hold that the prosecutor can't exclude certain groups on the basis of their group characteristics although the defendant still can, as far as his case goes.

Mr. Fryklund: --Well, he's certainly saying that he wants to restrict this to defendants.

I mean... sorry... just to the prosecutors.

But, as Justice White's questions earlier pointed out, logically if this can apply in a civil case in which both sides are private citizens, that same rationale should certainly apply to the defendant here.

In fact, it would be rather strange to have a procedure which constrained the government in a way which was on some basis other than impartiality and yet did not in a comparable way constrain the defense.

Almost by definition we would end up with something which was less impartial than before.

And it seems very inconsistent for this Court to require something that's guaranteed to reduce impartiality.

Unknown Speaker: Supposing you had a state... that's probably very improbable, but just to get a point across... in which... a trial court in which the judge followed a practice of always excluding black jurors from an otherwise, you know, cross-section panel and the resulting jury was nevertheless composed of 12 people who were found to be impartial, would the defendant have any basis for... constitutional basis for objecting to such a procedure?

A white defendant?

Mr. Fryklund: That sounds like Virginia versus... ex parte Virginia from back in 1879 when in that case a particular district judge refused to call any black jurors for the jury pool.

I think the same rationale would hold here.

If--

Unknown Speaker: But I'm assuming they're in the jury pool.

Now, they're in the jury pool and in the venire and you say that's... if your position is that that's the end of the ball game, I take it there would be no remedy if a judge did it at the... during the selection of the petit jury... just refused to seat any blacks.

Mr. Fryklund: --No, because the Equal Protection Clause applies at all stages and a trial judge--

Unknown Speaker: But could a white... could a white defendant object to that?

Mr. Fryklund: --I think a white defendant would not be able to object to that.

Unknown Speaker: So that such a practice would be permissible in all cases where the defendant is not black?

Mr. Fryklund: This would not be the means for attacking the problem.

Unknown Speaker: Then what would--

Mr. Fryklund: The remedy would not be found--

Unknown Speaker: --What would be... the means would be by passing a law to get them to stop?

Mr. Fryklund: --Well, that would be in violation of federal and probably state law right now.

The excluded jurors, as a class, could easily bring a suit.

Unknown Speaker: Well, I suppose it might be a due process violation if the judge did such an aberrational thing.

Clearly not authorized under state or federal law for the judge to do that.

Mr. Fryklund: I think there certainly would be a cause of action that the excluded class of black jurors, which, by hypothesis, there must be a large number--

Unknown Speaker: My question is whether a white defendant could object.

Mr. Fryklund: --I do not think... the Sixth Amendment would not reach it, and I do not think that a white defendant in a particular trial, if he was getting an impartial jury, would have standing... he would not have equal protection standing.

Unknown Speaker: Why, then, would a black defendant have standing because he would also not be a member of the class?

Mr. Fryklund: Well, in the previous decisions of this Court, class has always referred to race, and the defendant in Batson did have the same race standing.

He was the same race as the excluded jurors, which is a fairly traditional basis for third party standing... that he is not only similar and can stand in the shoes of the excluded jurors, but he also suffers, I think, some injury in fact to himself as he, a black defendant, is standing there watching members of his race being shown the door.

That also provides a signal to the impanelled white jurors that this person... people like the excused jurors, black people, are not terribly important in the eyes of the legal system.

So, he has an injury which is personal to him as well as third party standing.

A white defendant has no such interest.

So, our position here is that Petitioner Holland got exactly what the Sixth Amendment promises him.

This is why we think that even though he has denominated this claim as a Sixth Amendment claim, he really is not making a Sixth Amendment claim at all, as Justice White suggested earlier.

What Petitioner Holland appears to be doing is attacking by the back door the standing requirement of the Equal Protection Clause.

In fact, as he specifically asks at page 6 of his brief,--

Unknown Speaker: Supposing he is and suppose we accept that... even this back door approach, then what's your answer to the argument that the white defendant should have standing to attack the discriminatory exclusion of the black juror just on the ground that blacks are incompetent?

Mr. Fryklund: --If nothing else, if petitioner were to approach the problem through the Equal Protection Clause, jurisprudentially it's cleaner than what he is trying under the Sixth Amendment.

I think the reason it should fail on the merits is because that would amount to saying everybody has standing to complain about everything, and that is going to involve overturning an awful lot of standing jurisprudence of this court.

Other contexts such as--

Unknown Speaker: It might even go farther than the Sixth Amendment approach.

Mr. Fryklund: --Well, consider the Fourth Amendment, search and seizure, that it's always been held that a criminal defendant who wants to have something suppressed is going to have to assert an interest in either the thing that's been seized or the premises that were searched.

If we--

Unknown Speaker: What do you think the theory of Batson was?

Is it the... is it that the defendant has been denied equal protection?

Mr. Fryklund: --I think that's what the theory was.

That there was some--

Unknown Speaker: Namely that... that... that blacks were excluded and that's going to hurt him because blacks might favor him, or what?

Mr. Fryklund: --Whether he might have thought that blacks were going to favor him or not, I mean, I think that thus far has not been an interest this court has been willing to protect.

I think it's more the stigma of the system telling black jurors that they don't quality and telling--

Unknown Speaker: Well, what difference does it make what... what defendant raises that issue?

Mr. Fryklund: --Because in the situation involving a black defendant there is not only third-party standing on behalf of the excluded people but he has his own injury.

And in general--

Unknown Speaker: Which is... which is what?

What is his own injury?

Mr. Fryklund: --The... I think the injury is the signal to him that the... that the system does not value him too highly if it removes all members of his raise, and the possibility of conveying the idea to the impanelled jurors that maybe they shouldn't take this black defendant too seriously.

Thought it should be noted that in the Batson case I think there was also no claim that the actual jury that tried him was not impartial.

So, the Equal Protection Clause is dealing with something other than impartiality.

Unless petitioner would urge this court to go the equal protecting... the equal protection standing route, what he has left us with under a Sixth Amendment analysis is something which would be extremely difficult to put into practice, as well as totally unnecessary.

When he talks about, as he does in his brief, about how he would settle for merely a fair possibility of a fair cross-section actually appearing on his petit jury, the question is how to operationalize that so that any attorney... whether defense attorney or prosecutor... and the trial judge will know when a fair possibility has been violated or hasn't.

At the level of the jury pool, we know that by definition there is a fair possibility if in fact no distinctive group has been excluded.

And we test that by looking over some period of time to see if the composition of the jury pools matches the composition of the community.

But petitioner is apparently looking for something in addition that would be enforceable right on the petit jury.

Now, I would think the... perhaps the logical way to approach that would be to look at the composition of petit juries over time.

That, over a period of six months, looking to see if the jurors who actually serve somehow match the demographic distribution in the county... that is something that would be possible to do.

In effect, that's recreating the Swain rule, but under the Sixth Amendment.

But it does have the advantage of the certain logic that it's a way of testing what he says he's looking for.

If he doesn't go to some such long-term Swain type rule or switch to a Batson type rule where he substitutes the invidious intent of the Equal Protection Clause for disparity in numbers, we end up with something which is unintelligible and unenforceable.

In this particular case there were two black jurors excused.

That's all we can say looking at it.

There is... there is no theoretical content to that.

Cook County, which is approximately 26 percent black on the voter lists... this should mean that in a Cook County jury the ideal would be three black people on it.

And suppose in a particular voir dire the state excused two blacks, as in this case, and impanelled two, how would we ever know which of those two choices was wrongful?

What would the the trial judge do in order to manage voir dire?

So, anything which does not require actual impaling of a full cross-section on the petit jury is left in complete limbo.

Nobody knows whether the choice has violated the Sixth Amendment or it doesn't.

The prosecutor can go home every night wondering if he has violated the Sixth Amendment.

An additional problem with the analysis that petitioner is suggesting here is that I assume that this would be in effect at the same time the Batson rule is in effect.

Batson can be claimed by a black defendant.

The Sixth Amendment claim must be one which could be claimed by anybody, and I can foresee a lot of times when there would be a tension between what the Equal Protection Clause, as effectuated by the Batson rule, requires, and what a Sixth Amendment rule would require.

For example, in this case it would be possible for the trial judge to conclude, even if this was a black defendant here, that there was no violation of the Equal Protection Clause, that there were some race-neutral reasons.

But, at the same time, this petition kept urging back in 1981 at the time of his trial that these were the... quote... "only two available black people".

So, an argument could be made that we would have to impanel these two.

There is also a very different standard under the Equal Protection Clause in the Sixth Amendment.

The Equal Protection--

Unknown Speaker: I must confess I'm a little puzzled by that argument.

Who is making... you only have one defendant who is objecting to the... to what the prosecutor does.

Mr. Fryklund: --Uh-huh.

Unknown Speaker: He can't both insist that they seat these two people and object to their seating.

Mr. Fryklund: If he were a--

Unknown Speaker: Whatever he is.

Mr. Fryklund: --black defendant, he could ask the particular people not be excused under Batson.

Unknown Speaker: Yes.

As he objects to the prosecutor's use of the peremptories.

But he couldn't also then turn around and say, I'd like to have them seated.

Mr. Fryklund: Or maybe he could plead in the alternative.

[Laughter]

Or do we allow a defendant to--

Unknown Speaker: I really don't think that's a very realistic problem.

I think either he's going to object or he isn't going to object.

Mr. Fryklund: --Or another possibility is if, suppose it happens to be a venire which is predominantly black, as sometimes happens by the luck of the draw in Cook County.

We could end up with six black people on the venire.

The prosecutor who then excused three of them in an effort to obtain a distribution that more closely approximated Cook County, would be excusing people specifically on the basis of race which presumably would violate Batson.

But it might be absolutely necessary to avoid too many of some... too few of some other category.

And it might be required under the Sixth Amendment.

I think there are a number of situations in which there would be attention between the two.

Unknown Speaker: Well, I take it the argument is not that there is an obligation to excuse in order to get a fair cross-section.

It's simply that the state violates the Sixth Amendment because it, by its racially-based challenges, destroys the possibility that the laws of probability are going to work to... to produce a fair cross-section.

That's all the petitioner is saying here.

Mr. Fryklund: Well, unless--

Unknown Speaker: The petitioner is not saying that there is an obligation in every case to use peremptory challenges to secure a fair cross-section, simply that the state cannot by interference prevent the laws of probability from... from operating.

Mr. Fryklund: --Well, unless what petitioner is making is a heads I win, tails you lose, sort of argument that if there are six black potential jurors who appear, if there are that many, we are obligated to keep them, we can't reduce the number.

But if we are thinking seriously about a fair cross-section in which every distinctive group in the community has... should have a fair possibility of being there, I think that a prosecutor under a Sixth Amendment constraint would be entitled to try to produce something the closest to the community that he could.

And it seems that when petitioner is just talking about how we can't... perhaps what he's saying is simply that we can't alter whatever it is that comes in the door.

For that proposition, I see no support in either the Equal Protection Clause or the Sixth Amendment.

In fact, that would be saying that whatever distribution by the luck of the draw is sent from the jury room today... those 40 people... I can't use a choice which is going to alter that distribution, whatever it happens to be.

Unknown Speaker: Well, you... that isn't right.

Surely there would be some case-related reasons that could be used in exercising your peremptories without any challenge to them.

It's just you couldn't alter the luck of the draw by striking people for unacceptable reasons like race or like gender or something like that.

Mr. Fryklund: Again, those are equal protection ideas.

If what we're talking about is a consistent Sixth Amendment position in which we have whatever comes in the door, if we are exercising peremptory challenges for proper reasons to--

Unknown Speaker: Yeah, but all you get... all you're entitled to under the Sixth Amendment is a chance of the draw and... so the draw comes out.

Here it is.

It may not even remotely resemble a fair cross-section.

But that's the luck of the draw and you're stuck with it except to the extent that you can exercise your peremptories for decent reasons.

Mr. Fryklund: --Well, we think--

Unknown Speaker: That's a Sixth Amendment argument.

Mr. Fryklund: --We think the Sixth Amendment cross-sectional principle is fully satisfied at the time the jury pool is fairly drawn and the venire is fairly dispatched--

Unknown Speaker: Right.

Mr. Fryklund: --from the jury room.

And that that's the end of it.

Beyond that--

Unknown Speaker: Well, let me... I'm sorry.

Did you finish your answer?

I didn't--

Mr. Fryklund: --Beyond that, peremptory challenges should be exercised and I think constrained only by the Equal Protection Clause by the two adversary partier doing their best to impanel a jury that's going to give favorable consideration to their position.

Unknown Speaker: --Let me give you another example.

In Illinois you pick your juries by panels of four, if I remember correctly, that come in in sequence.

Mr. Fryklund: Usually we do it that way, yes.

Unknown Speaker: And usually the ones who get in earliest have the greatest likelihood of being selected.

Supposing they had a system where all the men went first and then the women went later?

Would that raise any Sixth Amendment concerns?

You have a fair venire but then you have this procedure between venire and petit jury that the men go first.

Mr. Fryklund: I think that would probably raise a due process concern.

Unknown Speaker: You don't think it would raise an equal protection... I mean, a Sixth Amendment concern?

Mr. Fryklund: I don't think so.

No.

Unknown Speaker: Just a fair trial--

Mr. Fryklund: A fair trial--

Unknown Speaker: --if all the men were on the jury or all--

Mr. Fryklund: --What defendant is entitled to and what Petitioner Holland got here is a fair trial.

Unknown Speaker: --Yeah.

Mr. Fryklund: That is everything that he is entitled to.

While petitioner is asking for an elaborate remedy which has some base and some combination of the Equal Protection Clause and the Sixth Amendment, we believe there is no necessity of this at all.

And given that this Court cannot impose new procedures or constraints on the states unless we're in violation of the Federal Constitution, and petitioner here has failed to demonstrate how the Sixth Amendment is violated by this, the State of Illinois asks that this Court affirm the judgment of the Supreme Court of the State of Illinois.

Rebuttal of Donald S. Honchell

Chief Justice Rehnquist: Thank you, Ms. Fryklund.

Mr. Honchell, you have two minutes remaining.

Mr. Honchell: Thank you, your Honor.

I believe the right of the defendant, or the expectation of the defendant has been well-expressed during respondent's argument, but this Court must assure that whatever the luck of the draw, the defendant has the right to a fair process which permits the fair cross-section as much as humanly and legally possible to reach the issue... to reach the jury.

This Court has never focused merely on the end result.

It has looked to the process involved because that's valuable.

This Court has never merely assumed the Sixth Amendment is satisfied by an impartial jury or a fair trial because that doesn't assure that there's a fair system involved.

All we're asking is a system that, as with blacks, allows white defendants to complain of the arbitrary exclusion of blacks on grounds of race.

It's a very simple system, it's been used in Batson.

The courts are familiar with it.

It can be used throughout the system.

And, in fact, if there is both a black defendant and a white defendant, it solves the nagging question of how the prosecutors can proceed in that case.

So, it does permit the... the last possibility of any prosecutor being in control of the system.

And the state seems to think that as long as all the members of the community are placed at the outset, then the government is no longer in control of the system.

In fact, they do remain in control over the system because they have that unconstitutional peremptory challenge.

That wild card that they can use to totally frustrate the rights of the defendant which he has standing to object to under the Sixth Amendment, and the will of this court that the processes assure the fair possibility that the cross-section will reach the petit jury.

Many of the concerns of the state that they admit today exist in trials of black defendants.

Well, here is a demonstration that a black is unfit to serve, and this has impact on blacks, and it has impact on whites.

Chief Justice Rehnquist: Thank you, Mr. Honchell.

Your time has expired.

Mr. Honchell: Thank you, your Honor.

Chief Justice Rehnquist: The case is submitted.

Unknown Speaker: The honorable court is now adjourned until monday next at ten o'clock.

Attribution:

The OYEZ Project

Featured:

Turner v. Murray - Oral Argument

Fri, 09 Jan 2009 14:48:37 +0000

Case:

Turner v. Murray

Media File:

84-6646_19851212-argument.mp3

Related Transcript:

1985_84_6646_argument.xml

Transcript:

ORAL ARGUMENT OF J. LLOYD SNOOK, III, ESQ., APPOINTED BY THIS COURT, ON BEHALF OF THE PETITIONER

Chief Justice Burger: We will hear arguments next in Turner against the Director of the Virginia Department of Corrections.

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

Mr. Snook: Mr. Chief Justice, and may it please the Court, this case presents the question of whether Willie Turner was denied his right to be tried by an impartial jury in his capital murder case where the trial judge refused to allow voir dire about whether the fact that Turner is black and his victim was white would cause prospective jurors to be prejudiced against him.

In this case, Turner's trial counsel asked the judge at trial, before trial to tell the jury that Turner was black, that his victim was white, and to ask them whether these facts would prejudice you against Willie Lloyd Turner.

The trial court refused, saying simply Question 10, which is the question that we are talking about here, has been ruled on by the Supreme Court.

I am not going to ask that.

Now, it is important to note that counsel had just immediately before this discussion of voir dire finished discussing with the court the claim that the death penalty was discriminatorily applied against blacks, and particularly against blacks who have killed whites.

The court had refused any evidence or any hearing, but evidence had been proffered to that effect, and I think it is safe to say that the court had that evidence and that contention firmly in mind at the time.

This Court has held in Ristaino versus Ross that these kinds of claims are to be adjudicated essentially on a case by case analysis in which the question is whether there are special circumstances about the crime that cause one to believe that there is a need for such voir dire.

One of our points is that the special circumstances need not be the facts of the case, the facts of the crime or the murder as much as they may also include the facts surrounding the prosecutions, such as in this case, since the facts of the capital murder statute, the nature of the statute under which the prosecution is being conducted, and therefore we have argued that capital murder, the fact of a capital murder prosecution itself is one of those special circumstances that this Court ought to find requires such voir dire.

We have addressed all of these issues fully in our briefs, which we incorporate into this argument by reference, but I would like to address one thing in particular in this argument that we have not really focused on before.

That is exactly the scope of a rule that we would suggest that this Court could or should make in such a case.

Now, there is in this Court's jurisprudence on voir dire issues a tension between the virtue of clarity on the one hand that comes with per se rules and on the other hand the flexibility that comes with the discretionary approach or leaving it all to the discretion of the trial court.

This Court need not decide whether a state must apply a bright line rule in such a case.

Some states have.

Georgia has, for example, in capital murder cases.

Rhode Island, Massachusetts, Pennsylvania have in other kinds of cases.

You could continue to rely on Ristaino versus Ross's discretion-based analysis provided that you make clear that the discretion must be exercised in a capital case with due regard for the special circumstances of a capital case.

For example, due regard for the greater discretion that the jury is given in a capital case than was given in Ristaino versus Ross or Rosales-Lopez versus United States or the other cases in which this Court has considered this issue.

The discretion given to a jury in Virginia to impose the death sentence is basically unlimited once an aggravating circumstance has been found.

The Virginia statute is essentially identical to the Georgia statue in this regard, so that the degree of discretion that you found and noted in Zant versus Stevens applies absolutely in this case as well.

And the second thing that is important about capital cases is the possibility that racial prejudice will manifest itself in the death and life decision, and for that we have suggested that the history of racial discrimination and the history of the discriminatory application in this country is evidence if not necessarily evidence high enough to allow us to argue to you that the entire statutory scheme should be invalidated, at least high enough to suggest that in the words of Justice White in Rosales-Lopez, that there is a substantial... a more substantial indication of a likelihood of racial prejudice in this kind of case.

Unidentified Justice: Suppose the defendant, Mr. Snook, is Puerto Rican.

Mr. Snook: Well, Your Honor, I--

Unidentified Justice: You would ask the same question then?

Mr. Snook: --Your Honor, I would argue in this particular case all that we are presenting you with is the black on white situation, and we have--

Unidentified Justice: I am asking you a hypothetical question.

Mr. Snook: --I understanding.

Unidentified Justice: Because the question you are putting may answer the other question.

Mr. Snook: I understand.

My position is that you could draw a very narrow rule recognizing the problem of black and white relationships in this country.

Unidentified Justice: How about Hispanics then?

And, of course, Puerto Rican may be categorized as Hispanic under some circumstances.

Mr. Snook: Well, I think that there you could again fall back on the case by case sort of analysis, and I don't think it is necessarily wrong to say that in a case where... for example, let us suppose that we are in a place in Texas in which there is a greater history of discrimination against people with Spanish surnames.

If we are in a place like that, where there is some history of discrimination, that may be more of a problem.

I tend to look at it from the Virginia perspective, where at least in Charlottesville there are very few indeed Hispanics, and so we don't perceive there being a problem of discrimination against Hispanics.

In a different community, in a different fact situation, there may well be enough of a problem so that this Court and lower courts would have to find that such voir dire would be appropriate.

Unidentified Justice: Mr. Snook, in your submission a moment ago you said that in your view the Court could retain, I thought you said, the basic outline of Ristaino against Ross, which leaves it largely to the discretion of the trial court informed by the facts of the particular case.

But you are not suggesting under your rule that a trial judge in Virginia in this case could have exercised his discretion as this particular trial judge did, could you?

Mr. Snook: Your Honor, if you choose to apply that, the narrowest possible ground on which we have urged relief in this particular case with simply the decision that the trial judge must consider, at the very least, must consider the unique characteristics of the death penalty statute and the unique characteristics of the death penalty decision, and you add in this particular case the fact that not just the trial and the jury was being move to a different location, but the judge who was conducting the voir dire and counsel also were going to a jurisdiction with which they were not familiar in this instance.

One of the reasons this Court has traditionally given that degree of discretion to the trial judge is that that discretion is informed by familiarity with the local ethos, the local citizenry, which in this case the trial judge did not have.

Unidentified Justice: Where was this case tried, what county?

Mr. Snook: This case was tried in Northhampton County, which is on the eastern shore of Virginia, and Southampton County was where the crime occurred, and is the area from which the judge comes and where the judge sits.

In Virginia the judges sit in narrowly circumscribed circuits, and it would be an extraordinary instance in which they would go elsewhere.

Unidentified Justice: Southampton County is a good ways from Northhampton County?

Mr. Snook: Yes, they are not contiguous.

You go from Northhampton County south through the cities of Virginia Beach and Norfolk and Suffolk, and then over to Southampton County, and I believe the respondent has said it is about 80 miles.

I believe that is essentially accurate.

Certainly there is a significant differences, and the judges of one area do not sit in the other area.

Unidentified Justice: And what was the reason for the change?

Mr. Snook: The change of venue was basically because of pretrial publicity.

Now, we are not arguing--

Unidentified Justice: On the motion of the defense?

Mr. Snook: --Yes.

Now, we are not arguing that there was any abuse in the discretion to have moved it to Northhampton County.

In fact, as respondents have noted, one of the things that was perhaps good about this particular move was that both Southampton and Northhampton County had essentially the same racial mix, 46.4 percent black in both counties.

Unidentified Justice: So your submission is on your narrowest ground that although the judge had resided in Northhampton County, he could have declined to voir dire; since he came from another county, he couldn't have.

Mr. Snook: At least in a case in which the judge sits there and actively thinks about the unique aspects of the capital statute.

It is important to remember that in this case we do not have the instance of the judge sitting there and saying, well, I am going to weigh the following factors pro and the following factors con and say no.

All he said was, that case has already... that question has already been decided by the Supreme Court.

I am not going to ask that question.

In other words, if he is going to exercise discretion, it has to be a discretion that at least contemplates the possibility that there would be some cases that would allow for such a question.

Unidentified Justice: Yes, but you wouldn't be satisfied if we just said that.

You want us to say that the discretion could not have been exercised in these circumstances to refuse the question.

Mr. Snook: In this particular case, Your Honor--

Unidentified Justice: Yes.

Mr. Snook: --I am obviously here asking you to hold that in this case the judge abused his discretion.

Unidentified Justice: What would you do?

Would you insist that the jurors be individually questioned, or just a general question?

Mr. Snook: Your Honor, I don't suggest that the Constitution requires in this case or as a general matter individual voir dire, or that any particular form of voir dire--

Unidentified Justice: So what would you expect?

Would this be... this would be to the entire panel?

Mr. Snook: --At the very least, yes.

Unidentified Justice: Well, at the very least.

Would that satisfy you?

Mr. Snook: I think that that is the minimum that the Constitution requires, yes.

Unidentified Justice: So the answer is yes?

Mr. Snook: Yes.

As a constitutional basis, yes.

Unidentified Justice: And you would expect that that really would do some good, that some people would raise their hand and say, yes, I am racially prejudiced?

Mr. Snook: Well, I am prepared to assume, as this Court has in the past, that jurors will answer truthfully.

Unidentified Justice: And you thank that the... you must think that the chance of there being racial prejudice among the jurors is sufficient to try to weed these people out.

Mr. Snook: That's right.

Unidentified Justice: Let me get back to the geography.

You said there were about 80 miles between Northhampton and Southampton Counties.

Mr. Snook: Yes sir.

Unidentified Justice: How many counties are in between?

Mr. Snook: It is complicated a little bit by the fact that there are cities in between, and in Virginia cities and counties are separate jurisdictions, but I think--

Unidentified Justice: How many counties in between?

In fact the Chesapeake Bay is in between.

Mr. Snook: --That's right, the Chesapeake Bay is the bigger problem, because we are... you have to go across the Chesapeake Bay, I think it is really safe to say that the eastern shore is considerably isolated from the rest of the state, and Justice Powell, I am sure, is familiar with the geographical problems that we have in this state in integrating the eastern shore into the rest of the state.

While it has some--

Unidentified Justice: Or vice versa.

Mr. Snook: --Or vice versa.

That's correct.

Unidentified Justice: Then your 80 miles is as the crow flies.

Mr. Snook: That may well be.

Unidentified Justice: Don't you know?

Mr. Snook: I don't know offhand how the crow flies, because you are going at sort of an angle.

Unidentified Justice: Well, you are from Virginia.

I would think you would know your geography.

Mr. Snook: Your Honor, I know that it is about 20 miles or 30 miles from the county seat of Northhampton County down to Norfolk, at which point one heads west about 50 miles.

I think that is the basis for the 80-mile submission.

Exactly how the crow flies in this instance I couldn't tell you, but I suppose if one figured out the hypotenuse it might give you the answer.

Unidentified Justice: The crow likes to follow the shoreline.

Mr. Snook: If you follow the shoreline, you are in real trouble.

So, in this case all that we are saying is that there may be a continuim, a spectrum, if you will, of justifiable and supportable constitutional rules going from the... still adhering to the case by case analysis in Ristaino versus Ross all the way over to a bright line rule that says in every single capital case in every state in the union there must be such voir dire.

Now, I don't think you have to decide where on that spectrum necessarily to fall.

What you could do is to say all that is necessary is that one way or another, either the state courts adopt a per se rule or they adopt a discretionary rule that takes these other factors into consideration, but the problem is that at no time in this case did we ever get up to that level, because the court never considered any circumstances surrounding the proper voir dire in this case.

Now, as I said, you could adopt a number of different per se rules.

One would be every capital case.

A second might be... a more limited one would be to say every capital case in which the jury does the sentencing, and of course there are about seven states in which the death sentence is imposed where it is really a judge sentencing state, Alabama being one, Florida being another, Arizona.

Those are states in which this same rule might not apply.

Or down to the case of every capital case in a state where the jury has essentially unfettered discretion, as in Georgia, as in Virginia.

You can also consider simply the fact of every jury sentencing case, which would be a broader rule that would apply obviously not only to capital cases, but would apply to non-capital cases in those seven states that still have jury sentencing.

But again, you don't have to adopt any one of those per se rules.

What you might well do is simply decide that the states must as a matter of constitutional law either adopt a per se rule that considers these facts or must adopt a discretion based rule that considers these facts, but that in either event you must consider the unique characteristics of the capital sentence.

Unidentified Justice: What are the guidelines for the exercise of that discretion?

Mr. Snook: The exercise of the judge's discretion is what... well, Your Honor--

Unidentified Justice: Must he take a look at the ethnic and racial composition of the particular jurisdiction, that is to say that it is one-third Hispanic or one-third something else or--

Mr. Snook: --I would think so, yes.

Unidentified Justice: --one-third Austrians?

Mr. Snook: I would think so, and in fact that would be part of the local knowledge that a local judge would have that would make that decision and that exercise of discretion better informed.

There are a number of factors like that which... obviously, in Ham versus South Carolina this Court recognized that a familiarity with the local ethos there, familiarity with the racial prejudice that was a problem in that case was one of the reasons... was one of the factors to take into account, and therefore that the judge, having failed to take those factors into account, abused his discretion in not having asked those questions.

But all we are saying is that at a bare minimum, the bare mandatory minimum that this Court should require is that the trial judge consider the unique needs of a capital case.

Unidentified Justice: Well, would you require him to put something on the record reciting that he had considered them?

Mr. Snook: I think that would certainly be helpful in this particular case--

Unidentified Justice: Would you require it as a matter of federal constitutional law?

Mr. Snook: --I think that if it is to be considered as an exercise of discretion, that yes, it would have to be... either he would have to say, yes, I have considered these factors, or would have to give some other indication some place that he is not simply ruling out of his hip pocket.

Unidentified Justice: What part of the constitution would he be relying on?

Mr. Snook: Only the part of the constitution... Your Honor, this is still a Sixth Amendment claim, and while the Sixth Amendment may not spell out specifically that he has to put in writing every reason for what he is doing, and I understand of course in Witt versus Wainwright that this Court held that a judge does not have to give written findings of fact every time he decides that somebody should not sit as a juror, but that is not what we are talking about.

All we are talking about here is that there be some evidence from the record, however he wants to put that evidence into the record, that those factors were considered.

It doesn't have to be in writing, it doesn't have to follow any particular form, but the record must show in some way that this issue has been considered and the unique aspects of the case have been considered.

Unidentified Justice: Mr. Snook, your argument strikes me, frankly, as asking for almost a cosmetic change which would have the effect of overturning a conviction for failure to meet it.

The judge did ask of the panel if there was any reason whatever why the jurors could not serve properly in this case, and presumably the panel didn't indicate or no one indicated they could not, and you would be satisfied with a single additional question posed to the entire panel, are any of you racially biased?

Mr. Snook: As a bare minimum, yes.

Unidentified Justice: Well, I mean, when you look at it from that standpoint, how much do we gain by that kind of a limited inquiry?

That is what troubles me, I think, about your argument.

Mr. Snook: Okay.

What we gain, first of all, is the fact that at the very least if there are honest jurors on the panel, as we assume that there are, that those jurors will say yes.

Unidentified Justice: If there are honest jurors on the panel who felt they were racially biased, they should have said yes in response to the more general question, shouldn't they?

Mr. Snook: I don't think so, Your Honor, because the more general question does not call their attention to the fact that the victim was white.

Now, we all know that as a practical matter, what often happens in capital cases is that the jury considers in some way or another the relative worth of the life of the defendant against the relative worth of the life of the man he killed, and it is unfortunately the case that all too often people, blacks, when the blacks are the victims, for whatever reason, the death penalty does not get applied.

I have to assume on the basis of all the research that has been done that that is based in large part on the notion that the jurors do take that into account.

Now, I have to assume again that asking the question would have some utility, first of all, because I assume that they are honest jurors, second, because at the very least they would begin to think about the possibility of their own prejudice.

If they did not even know that the race of the victim... that the victim was white, there is no way that they can answer a question that has not been asked, and I don't think it is reasonable to expect as the respondent would have us do that someone hearing the question, do you know of any reason why you could not be fair in this case, would say, if it turns out that the victim is white, I am going to vote to execute him.

And that is basically what they are suggesting.

Now, I have asked to be allowed to reserve some time for rebuttal here, and I would simply like to note that as this Court has noted in Gardner and in Beck, that it is important in this case, as in all capital cases, both... it is important both to the defendant and to the community that any decision to impose the death sentence be and appear to be based on reason rather than emotion.

All that we are asking in this case is that black capital defendants have the right to be sure that inadmissible influences such as race not be allowed to decide who lives and who dies.

Unidentified Justice: What about a white capital defendant in a community that may be predominantly Negro?

Mr. Snook: If you had the same history of racial discrimination in that community, I think that would be a valid concern.

I think the Court ought to require voir dire in that case.

Unidentified Justice: How does the history... how do you measure that history?

Who decides what that history is?

Mr. Snook: Obviously.

Your Honor, that is a discretionary matter.

I recognize that my model of judicial decision-making still retains a great deal of discretion for the trial court as to those other additional factors.

I have suggested a couple of ways that that discretion might be guided, a couple of per se rules that this Court may follow.

As to the additional cases, the cases not presented on the basis of this factual record or on the basis of the issues presented here, all I can say is that I would hope that this Court would give the judges some guidance in those decisions they would have to make in the future.

Unidentified Justice: What if the judge then says, well, I have been sitting in this jurisdiction for 20 years, and I reject the idea, the notion that there has been any discriminatory administration of justice, and I would regard the question that you propose as an offensive question to be put to an American citizen?

Is he going to be reversed for abuse of discretion, or where do we go from there?

Mr. Snook: At least in that instance the judge would have considered those things.

He would have said that I am familiar with the local citizenry, and he would have made these specific statements, and we would know that he had in fact carried out his duty.

We don't know that in this case.

Whether he would be reversed on that factual record, I suppose the Court would again have to fall back to the abuse of discretion standard.

Has he abused his discretion?

We couldn't really tell until we saw the facts of that case.

I would like to reserve the balance of my time for rebuttal.

Thank you.

Chief Justice Burger: Very well, Mr. Snook.

Mr. Kulp.

ORAL ARGUMENT OF JAMES E. KULP, ESQ., ON BEHALF OF THE RESPONDENT

Mr. Kulp: Mr. Chief Justice, members of the Supreme Court, may it please the Court, one of the questions that was asked earlier about the difference between Southampton County, the place in which this crime occurred, and Northampton County, the place in which the trial occurred, in his opening statement to the jury counsel for petitioner, in speaking to the jurors in Northampton County, indicated that the area and the people were basically the same.

You find this on the transcript of trial, December the 4th, Page 116.

I think that the question that counsel for petitioner is asking is, since the judge was not from this county, therefore he had a special duty to determine whether racial prejudice existed in this particular instance.

This Court has said on many occasions that the trial judge has great discretion, broad discretion to determine the voir dire in a case, and it seems that this Court has indicated that in order for the judge to exercise his discretion, that counsel need to inform him or bring to his attention those matters in which they believe that, particularly in this instance, where they are requesting a specific question, the matters which they think they should call to the judge's attention to require such a question.

Now, the situation in this case is that prior to trial over in Northampton County the petitioner's attorneys did make a motion to strike the indictment because of the fact under their position that the statutes in Virginia were unconstitutional.

They did mention to the judge at that time a study from Northeastern University, but the record makes clear they did not introduce the study at that time.

The study was not actually introduced into the record until the post-sentencing hearing several months after the conviction and sentencing by the jury in this case.

Several things occurred in between the time that the mention of this study and the question about voir dire occurred.

Prior to trial, the judge had requested counsel to supply him with questions which they would ask that he ask the jury.

They did so.

One of the questions was, as Mr. Snook has indicated, a question specifically related to a question towards possible racial bias.

During the trial, when the judge was taking up the questions, the prosecutor brought to the judge's attention, said that this was not a racial case, it did not involve any racial issues, and that the only thing you had here was a crime where the victim was white and the defendant was black.

At that time the petitioner's attorney made no proffer to the court of any reasons why the question should be asked.

They did not again bring to the judge's attention the Northeastern study or their basis that the question should be asked because in their view the study shows that white victims... defendants who kill white victims are more frequently subject to the death penalty.

They didn't tell him anything about, Judge, you are not familiar with this county so therefore you need to give specific attention to whether you know anything about the county.

They didn't bring to his attention the things that they had mentioned in their brief.

They set forth a number of factors.

Unidentified Justice: Mr. Kulp, the Supreme Court of Virginia's opinion when it is dealing with the question of whether or not the trial judge should have asked this question does have a footnote, as I recall, saying that the defendant had introduced into evidence this study.

It doesn't say when it was introduced.

Mr. Kulp: Yes, sir, Justice Rehnquist, they do, and it seems that the Supreme Court of Virginia has given credit that the study was introduced on this particular point.

I suggest to the Court, however, that a careful reading of the record would indicate that it was not, and then if the Court would look at the post-sentencing bearing when the study actually was introduced into evidence in February of 1980, at that point the attorneys for the defendant again said, we want to now make a part of the record the study from Northeastern as it pertains to our claim of discrimination application of the statute.

They didn't really say again that it was for this point, but even if you give credit, as the Supreme Court of Virginia has apparently done, to the defendant for introducing this study on the basis of showing that white victims, defendants who kill white victims are more frequently executed, we submit that the study is insufficient.

First of all, the Bowers and Pierce study that was introduced at trial bore no relationship to how the death penalty is being imposed in the state of Virginia.

It was based on some statistics in five other states.

Now, we submit that at the time this Court decided Furman, all states were basically operating the same.

But since this Court handed down the decisions in Gregg, Jurek, and Proffitt, states do not have the same type of statutes any longer, and Virginia, we submit, has one of the more stringent statutes in the country, because not only has Virginia seen fit to narrow the categories on crimes for which a death penalty may be imposed, and it is related to all of the capital murder crimes, had to be wilful, premeditated, and deliberate murders.

In Virginia, unlike Texas and Florida and Georgia, Virginia cannot use a felony murder rule in capital cases.

In addition to having to show the premeditation and wilful, deliberate murder, it has to be in connection with some other aggravating circumstance such as during the commission of rape or in this case during the commission of armed robbery.

But not only does the Commonwealth bear the burden of showing those stringent circumstances.

A person is not eligible to be subject to the death penalty in the Commonwealth of Virginia unless the Commonwealth proved beyond a reasonable doubt one of two additional aggravating circumstances.

So, we submit that the statute in Virginia is much more stringent than the statutes in other states, and that Virginia should be viewed upon how it is imposing capital murder, not perhaps what they are doing in Georgia or some other place.

The studies, as we have indicated in our brief, are clearly fundamentally flawed.

Each of the studies, the Bowers and Pierce study, which was introduced at the time of trial, and the study by Gross and Morrow which was introduced, I think, during the Federal District Court proceeding on a motion to alter or amend, those studies take all homicides committed in a state and try to compare those with cases in which the death sentence was actually imposed.

Under Virginia law, for example, they are comparing or would try to be comparing in Gross and Morrow's study, they would be trying to compare capital murder cases with manslaughter cases, with second degree murder cases, with first degree murder cases, all of those of which the defendant is never subject to capital punishment.

Unidentified Justice: Let me ask you for a minute, Mr. Kulp, is the first study you referred to the Northeastern study?

Mr. Kulp: Yes, sir, that is Bowers and Pierce.

Unidentified Justice: Bowers and Pierce.

That was offered in the trial court.

Mr. Kulp: Yes, sir.

Unidentified Justice: Were Bowers and Pierce, either of them present?

Mr. Kulp: No, sir.

Unidentified Justice: Did the state object to the admission?

Mr. Kulp: No, sir, the commonwealth's attorney did not object.

Unidentified Justice: And the trial judge received it?

Mr. Kulp: Yes, sir.

I wanted to point out that they mentioned the study to the judge at that time.

They did not in fact introduce the study until after the trial in the post-sentencing conviction or proceeding.

Unidentified Justice: Post-sentencing proceeding?

Mr. Kulp: Proceeding.

Unidentified Justice: And then how about the Morrow study?

You say that was introduced for the first time in the federal habeas proceeding?

Mr. Kulp: Yes, sir.

Unidentified Justice: And what was the state's position when that was offered?

Mr. Kulp: I think the position, and I didn't try the case, but I believe the position was that it does not accurately reflect how capital punishment is raised or is being imposed in the Commonwealth of Virginia, and the District Court found that as a matter of law, the statistics were not acceptable.

We would suggest to the court that this case is guided by the principles enunciated by the Court in Ristaino versus Ross.

In that case, this Court said that simply having a black defendant and a white victim is not a special circumstance to warrant the specific inquiry into possible racial prejudice.

And we submit that in this case, the judge did what he is constitutionally required to do.

At a time when all the veniremen were present, the defendant, who is black, stood at the time the indictment was read and requested trial by jury, so when all of the veniremen knew the race of the defendant, the judge then asked two questions.

Do any of you know any reason whatsoever why you cannot render a fair and impartial verdict in these cases either for the defendant or for the Commonwealth of Virginia?

The second question the judge asked the veniremen, do any of you know why you cannot render an impartial verdict in this case?

Now, we submit that those questions, absent the special circumstance as noted by this Court in Ham versus South Carolina, is all that is mandated under constitutional law.

Unidentified Justice: General Kulp... oh, excuse me.

Well, counsel, Mr. Snook responds to that by saying there was no way the jurors could have known at that time that it was a white victim.

And presumably they could see that it was a black defendant, but not that it was a white victim, and he also says, this is a capital case in which the jury will have broad discretion in sentencing, so perhaps you ought to address yourself to those aspects of the argument.

Mr. Kulp: Justice O'Connor, it is true that in this case the jury when they were asked these questions did not know the race of the defendant... or the victim, and as a matter of fact, all during the case neither the prosecutor nor the defendant ever made anything of race either of the defendant or the victim, and it wasn't until about the second or third day of trial when the prosecutor introduced a photograph of the body that the jurors virtually became aware that he was white.

So, there was never any issue made to the jury by the prosecutor or even in the defendant's case that he was white.

Now, it seems that in Ristaino, when the general question was asked, one of the jurors was excused because he admitted to racial bias, and we submit that this is certainly a clear indication that when they know the race of the defendant, that is where the bias, if any there is, would come into play, and since in Ristaino one of the jurors admitted to racial bias, we think that the general question then would draw out from a juror who is going to be honest, and we submit that the asking of the additional question... there is nothing to indicate that a juror, if they were harboring racial bias and they were asked the normal questions and they didn't answer in the affirmative, there is nothing to really indicate that they would answer any more truthfully to a more pointed question.

Now, the fact that it is a capital case, of course, in Virginia, as I have indicated, the jury must find beyond a reasonable doubt one of two aggravating circumstances.

This is, it appears to me, much like in the trial itself.

In other words, there are certain factual issues that a jury must focus upon in order to find that a person is subject to capital punishment.

Now, this Court in the past, while it has recognized the qualitative different nature of death sentences, has never gone and taken the step of carving out a separate and distinct series of laws to apply to capital cases.

For example, in Barefoot versus Estelle, this Court said that there is no reason not to apply the normal rules of evidence as to using an expert.

The Court applies the same standard in capital and noncapital cases in Strickland versus Washington, when you deal with ineffective assistance of counsel, and in Wainwright versus Witt the Court said that the excusing for causing of jurors is the same, that you apply the same standard whether you are talking about a capital case or a noncapital case.

And we submit that there have been no persuasive reasons presented to this Court which would justify a step as saying that simply because it is a capital case, that therefore you should ask different questions.

Unidentified Justice: Do you concede that on the record of this case it is apparent that the judge did not exercise discretion in making this determination--

Mr. Kulp: No, Your Honor.

Unidentified Justice: --whether to ask the question?

Mr. Kulp: No, Your Honor.

We would say that he did in fact on the record exercise his discretion.

When the question was presented to him, the prosecutor said, Your Honor, this is not a racial case, there is nothing racially involved, and the record will show that the petitioner has conceded that there was nothing in the circumstances of this case that would indicate any racial animosity.

And so the prosecutor said, Your Honor, this is not a racial case.

All we have is a black defendant and a white victim.

Now, the defendant, his attorneys did not offer anything to the judge to the contrary, and the judge indicated, well, the Supreme Court has already ruled on that.

Unidentified Justice: What if the defendants had offered all the things that they have offered here in this court to the trial judge.

Do you think the trial judge under those circumstances could have declined to ask a question about racial violence?

Mr. Kulp: Yes, Your Honor, I think he could have.

If we take the things that they have presented, first they said that because you have different races.

Well, this Court has already said in Ristaino that is not a special circumstance.

They indicated that there is a past history of racial discrimination, and we submit that there is no indication in this case, there is no indication that under the new capital punishment laws in Virginia that there is any racial discrimination in the imposition of capital punishment in Virginia.

They talk about there are only four peremptory strikes.

Unidentified Justice: Well, they have produced a number of studies now that presumably could support their position, and you think if all of those things had been available to the trial judge, it would have been appropriate for the judge to refuse to ask a single question about racial bias?

Mr. Kulp: Yes, Your Honor, because even though they have introduced--

Unidentified Justice: If it had been in a federal court, he would have had... the judge would have to ask.

Mr. Kulp: --Yes, ma'am.

That's correct, Your Honor, but the court has recognized in Rosales that under its supervisory authority, that the court has closer supervision in the federal courts.

Unidentified Justice: Yes, but in Rosales, although it was a supervisory case, the reason the rule was imposed was because when there is a... where the victim and the defendant are of different races, there is a reasonable possibility of prejudice.

That is what the Court said.

Right or wrong, that is what it said, and it is a violent crime.

A violent crime plus victim and defendant of different races, that raises a reasonable possibility of prejudice.

Now, if you accept that, I would think that at least that is this Court's opinion that in those circumstances there is a reasonable possibility.

What would you think if you accepted that in your case?

Do you think the question should be asked if there is a reasonable possibility of prejudice?

Mr. Kulp: Well, Justice White, I think to answer your question if you have a special circumstance, as was--

Unidentified Justice: Well, the special circumstance in Rosales was identified specifically.

That is one of the special circumstances where as a supervisory matter the question must be asked, but only because that raises a reasonable possibility of prejudice, just those special circumstances.

Mr. Kulp: --I think, Justice White, that the Court did not find that that was a reasonable possibility apparently in all circumstances, because in Ristaino you had a violent crime, blacks on white, and the Court said that does not call for a per se rule, and so it seems to me that what the Court has done in Rosales is applied its supervisory authority, but they said--

Unidentified Justice: Well, there is no doubt about that, but the predicate for its rule was that... at least the rule that it applied and found to have been satisfied here in Rosales was this rule I just stated to you.

Mr. Kulp: --Yes, sir.

Unidentified Justice: That must be inconsistent with Ristaino.

Mr. Kulp: It is.

It could not stand, Ristaino could not stand on that basis because it was... in that case it was--

Unidentified Justice: Which came first?

Mr. Kulp: --Ristaino came first.

Rosales made clear, Justice White, that the Court was not overturning Ristaino, but was simply using its authority in a supervisory role.

And in this case, the facts of the case clearly show that there was no contest as to the guilt in this case.

The defendant's attorneys when they were arguing to the jury clearly told the jury this case has never been about guilt or innocence.

In fact, there is overwhelming evidence of his guilt.

One looks at the circumstances and aggravation, the Supreme Court of Virginia said that his past record is perhaps the worst they had seen up until that time.

It had a prior murder conviction, and within a period of four years he had three other malicious wounding cases, and so the Court, even, Justice White, in Rosales, the Court said that even if the judge failed to honor the defendant's request, it will not be reversible error where the circumstances of the case indicate that there is a reasonable possibility that racial prejudice might have influenced the jury, in other words, if there is no possibility that it influenced the jury.

Unidentified Justice: Did you understand that the attack in this case is on the conviction or the death sentence or both?

Mr. Kulp: Well, I think the petitioner's relief asked for in both his petition or in his initial brief and the reply brief talks in terms of both, either send it back for a retrial entirely or send it back for sentencing.

It certainly seems to me that in this case there is absolutely no question about the guilt.

The case... the defendant was found in the store.

We had four eye witnesses.

There has never been any question as to his guilt.

And his counsel so admitted to the jurors at the sentencing phase.

So, I am not sure what he is asking for, Justice White, but he has seemed to ask in both terms.

So we would ask this Court not to overrule Ristaino.

In fact, petitioner is not asking the Court to do that.

And we believe that if significant studies were produced which in fact judged how capital punishment were being imposed in Virginia, and they showed some discriminatory effect, then we believe that certainly would be taken into consideration by the trial judge as a special circumstance.

Unidentified Justice: Counsel, wouldn't you be in a better position, you, if the judge had at least looked at the report?

Mr. Kulp: Justice Marshall--

Unidentified Justice: Wouldn't the judge close his mind and say the Supreme Court has said that is unimportant, so I am not interested in it?

Mr. Kulp: --Justice Marshall, I don't think he closed his mind.

I don't think that counsel ever presented the--

Unidentified Justice: Didn't he say that?

He didn't say close his mind, but didn't he say the Supreme Court has ruled on this and that is it?

Mr. Kulp: --He said that, yes, sir, but the attorneys did not--

Unidentified Justice: Well, wouldn't you have been better off if he had looked at it?

Well, it wasn't here.

Mr. Kulp: --It was not there.

Unidentified Justice: Wouldn't you have been better off if he had asked for it?

Mr. Kulp: Well, I assume, but I think that the judge is like anyone else.

He has to exercise his discretion, and the duty on counsel is to bring these things to his attention.

They did not bring these matters that they are now relying on to his attention, and we submit that there was nothing in this case over which the judge abused his discretion.

He was simply following what I believe was the law which was set down by this Court in Ristaino only three years before he ruled in this case.

And we would ask the Court in this... for example, the death penalty in Virginia has only been under the new statute since 1977, and between 1977 and 1985, June of 1985, there have only been 212 people charged with capital murder in the State of Virginia.

The petitioner indicates in his petition that there are 32 people on death row in Virginia, which would leave us then 180 people who have been charged with capital murder who have had some disposition other than the death sentence.

So, if we take half of those and consider that half of those 180 are black and half of those 180--

Unidentified Justice: Is there any discretion in the prosecutor as to... for a particular crime whether to charge capital murder or something else?

Mr. Kulp: --Yes, Justice White, there is, but these were 212 people actually indicated for capital murder.

Unidentified Justice: And the prosecutor then was urging the death penalty?

Mr. Kulp: Well, I think at least certainly initially, Justice White, but we obviously know some people were convicted of lesser offenses.

Unidentified Justice: Well, I know.

Yes.

Mr. Kulp: So he at least charged him.

In other words, these were not the situation where he had already exercised his discretion in order to bring the charge, but we are not talking about people where the prosecutor did not ever exercise discretion or assume to begin with that he would not make the charge.

So I am simply suggesting that--

Unidentified Justice: Am I correct, we don't know how many of these 180 people actually were eligible for the death penalty in the sense that the jury had an opportunity to impose it?

Mr. Kulp: --Justice Stevens, we know by a survey that we did that more blacks who killed whites who were convicted of capital murder received life imprisonment than they did the death sentence.

And that is all we are--

Unidentified Justice: Yes, but that is a comparison within the universe of blacks who killed whites.

It doesn't compare blacks who killed whites with blacks who killed blacks or whites who killed whites.

Mr. Kulp: --Well, we know, again, by just a survey that we did that more people who were actually convicted of capital murder, whether they be black on white, white on white, whatever it is, more people received life sentences than they did the death sentence.

Unidentified Justice: Is that in the record?

Mr. Kulp: No, sir.

The point I am trying to say is that the studies which we think are fundamentally flawed because the raw materials or the raw data that they use do not reflect how capital punishment is being imposed in Virginia, and so we just ran a survey of all the prosecutors to just find out, and so we are confident that if they compared capital cases or persons who were charged with capital murder, that these studies would not indicate, as Gross and Morrow tried to suggest, that the likelihood of receiving a death sentence is greater if a black kills a white.

Those facts simply would not stand up if they used correct information.

Unidentified Justice: Has Virginia ever imposed a death penalty on a black who killed a black?

Mr. Kulp: Yes, sir, Your Honor, and one has been executed within the last year.

Unidentified Justice: May I ask in your study of the Ristaino case which involves a black defendant and a white prison guard as I remember it, does the record tell us whether the jurors knew that the victim was white at the time of the voir dire?

Do you happen to know?

Mr. Kulp: No, sir, I don't think it does.

Justice Stevens, the record indicates that at least one of the jurors knew the defendant was black, but it doesn't go on to show even if all the others did, and there is no indication as I can see in the opinion that they knew that the guard was white.

Unidentified Justice: And that one excused himself without really knowing the race of the victim.

Mr. Kulp: Yes, sir.

We can't tell from the record.

Unidentified Justice: Don't you have the defendant in court during the voir dire?

Mr. Kulp: I say, in our case, all of the jurors were aware of the defendant's race when they were asked, but in Ristaino the record is not clear.

Unidentified Justice: Were there blacks on the jury that convicted this man?

Mr. Kulp: In this case the jury, the makeup of the jury was four blacks and eight whites.

Unidentified Justice: Who was the foreman?

Mr. Kulp: The foreman was black, Mr. Warsling.

And so we submit that when the judge has all these things before him, in other words, when the veniremen came before the judge, he was well aware that the venire consisted of a good portion of blacks, and I think that this is a thing that the judge could take into consideration as to whether he thought it was going to be necessary to ask a specific question as proposed by the defendant.

We would ask this Court to retain the rule in Ristaino because we believe it is a workable rule.

We think it worked in this case, and we would ask the Court to affirm not only the judgment of guilt but also the sentence.

Chief Justice Burger: Do you have anything further, Mr. Snook?

ORAL ARGUMENT OF J. CLOYD SNOOK, III, ESQ., APPOINTED BY THIS COURT, ON BEHALF OF THE PETITIONER -- REBUTTAL

Mr. Snook: Yes, Your Honor, I do.

Unidentified Justice: What do you ask, Mr. Snook?

Do you attack the conviction?

Mr. Snook: Your Honor, what we have--

Unidentified Justice: Just yes or no.

Mr. Snook: --The problem is that, if I may, Your Honor, the issue is a bit more complicated than that, and I don't want to concede something--

Unidentified Justice: Well, you are bound to come out with a conclusion.

Tell me what it is first.

Mr. Snook: --Ultimately, I would suspect that if he were retried on guilt, he would be convicted anyway, and what we really most want is to keep him out of the electric chair.

Unidentified Justice: Well, normally when only a sentence is under attack, we just vacate the sentence and leave the conviction intact.

Mr. Snook: That's right.

Unidentified Justice: If this hadn't been... if the same crime had been charged except it wasn't charged as a capital crime, would you be here?

Mr. Snook: Well, obviously, we are predicating our whole approach on the fact that it is capital--

Unidentified Justice: Well, so you can just answer no, you wouldn't be here, would you?

Mr. Snook: --No, we would not be.

Not in that sense, no.

If I might--

Unidentified Justice: Not in that sense?

You wouldn't be here.

Mr. Snook: --Justice White, if I might, let me say that the problem that I have is that under this Court's decisions such as Toomey versus Ohio and cases of that nature that have dealt with the abridgement of the right to an impartial finder of fact, an impartial trier, this Court has never attempted to get into harmless error analyses.

Because we have mounted an attack on the impartiality of the finder of fact, then I don't feel that I can properly concede to you that we should not go back for a new trial on guilt or innocence as well.

Unidentified Justice: Then why do you hinge your whole case on it being a death case?

You should say in any violent case, any case of a murder where the victim is white and the defendant is black, this question must be asked.

Mr. Snook: I may be being excessively cautious, Your Honor, in not trying to concede something that may have ramifications or implications that I don't want.

As I say, my concern... before the Fourth Circuit, after I was being asked essentially the same question, I acknowledged that there really wasn't much question about guilt.

Unidentified Justice: Let me just ask you then, do you ask us to set aside the conviction as well as the death sentence?

Yes or no?

Mr. Snook: Yes.

I also recognize that this Court could probably properly set aside only the death sentence.

Unidentified Justice: You qualified your answer to Justice White by saying there isn't much doubt of his guilt.

There is none whatever, is there?

Mr. Snook: I don't think there really is.

No, Your Honor.

Not as to whether he committed the murder and that kind of... I mean, I think there are some other issues one might get into, but to be perfectly candid--

Unidentified Justice: The fact of guilt doesn't necessarily answer your constitutional question, but--

Mr. Snook: --No, but--

Unidentified Justice: --And you client also tried to kill another person at the same time.

Mr. Snook: --I don't believe he did, Your Honor.

Unidentified Justice: He shot one person who didn't die.

Mr. Snook: No, he did not.

Unidentified Justice: Are you sure of that?

You know the record better than I do.

Mr. Snook: I am pretty sure, Your Honor, there was only one person shot at, and that was Jack Smith.

He was disarmed immediately after that by the guard... by the police officer, but the problem is that this Court has held, and the reason I am trying not to concede more than I have to is that this Court has held in Irvin versus Dowd among other places that you don't try to apply a harmless error analysis in a case where it has been found that there is a violation of the right to an impartial factfinder, and that is applied in Irvin versus Dowd irrespective, as this Court said, irrespective of the guilt, irrespective of the heinousness of the crime, irrespective of the station of the offender.

Now, let me talk just a second about how this study that we were talking about earlier came to get into the record.

In the appendix, at Page 12 and 13, Mr. Woodard says,

"The statement that I made regarding the disproportionate application of the death penalty is based on a study which again I would state that we would like to submit subsequently. "

Unidentified Justice: Who did Mr. Woodard represent?

Mr. Snook: Woodard is the counsel for petitioner, counsel for defendant.

Unidentified Justice: And when was this?

Mr. Snook: This was... in the preliminary goings on before the calling of the jury, before the voir dire, when he was making his objection to the constitutionality of the statute.

He said,

"We would like Mr. Grizzard to see it. "

obviously implying that he had it there, and then later on the judge says,

"Well, gentlemen of course, our Supreme Court has ruled on this question in practically every case that has gone up. "

"I so rule at this time. "

"I note your exception in the record. "

"Your Honor, may we preserve the right to submit that study. "

and the court then says,

"You can submit any study you desire and I will file it as part of the record. "

but I think the implication is clear that had they been allowed to go forward, they would have gone forward.

Now, the other--

Unidentified Justice: What does that mean, to say they would have gone forward?

Forward to what?

Mr. Snook: --In addressing the concern that this Court may be having as to whether the judge had the issue and the facts in front of him on which to base the motion or the argument we are now making, he would have had them there, would have had the facts in front of him in the form of that study sufficient to allow an open-minded judge to look at them, read them, and understand them, but he obviously had closed his mind before he got to that point.

Unidentified Justice: He closed his mind, as you put it, on the basis of the decision of the Supreme Court of the United States.

He is supposed to follow decisions of this Court, is he not?

Mr. Snook: Well, yes, he is, except that this Court had not in 1979 and still has not to this day ruled in anything that is precedential, that has any precedential value as opposed to denials of cert that the Virginia death penalty statute is being fairly applied.

This is that first time that a Virginia death case has come to this Court, so in a very strict sense the judge was incorrect in saying that this particular issue had been resolved.

Unidentified Justice: I wasn't addressing the correctness of his statement.

I was addressing what he said.

Mr. Snook: He may well have perceived it wrong, but that was his perception, and yes, he should follow the dictates of this Court.

Unidentified Justice: Or else perhaps he was referring to the Supreme Court of Virginia.

Mr. Snook: That is also possible.

He was not clean on that.

Unidentified Justice: If it is important, if it turns out to have any relevance to this case, is there any question about what the composition of the jury was?

It isn't any secret, is it?

What was the composition?

Mr. Snook: It isn't any secret now.

I will be perfectly honest with you.

I did not know the composition of the jury until... because it had not come up at any point in the proceedings of record.

I didn't know the composition until I saw the addendum to the respondent's brief.

This is the reason we filed the motion that we did to strike that affidavit.

I have no reason to doubt it, quite frankly, and in fact what information I have from trial counsel confirms it.

It also confirms--

Unidentified Justice: That is all I need to know.

Mr. Snook: --It also confirms that the commonwealth struck virtually all blacks, and the defendant struck all whites, and that they perceived that there was a real racial problem there.

Anyway, a couple of other issues that I want to touch on that have been raised in your questions to Mr. Kulp--

Chief Justice Burger: Your time has expired, Mr. Snook.

Mr. Snook: --but I see I don't have any more time.

Thank you, Your Honor.

Chief Justice Burger: Thank you, gentlemen.

The case is submitted.

Attribution:

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Featured:

Rosales-Lopez v. United States - Oral Argument

Wed, 18 Feb 2009 06:13:05 +0000

Case:

Rosales-Lopez v. United States

Media File:

79-6624_19810112-argument.mp3

Related Transcript:

79-6624_19810112-argument_transcript.xml

Transcript:

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

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.

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.

Unidentified Justice: 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--

Unidentified Justice: 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--

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

Mr. Cleary: --That is--

Unidentified Justice: --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.

Unidentified Justice: Why?

What does race have to do with this trial?

Mr. Cleary: Race have to do with this trial?

Unidentified Justice: 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--

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

Mr. Cleary: --No, none of the jurors were Mexican or Mexican-American.

Unidentified Justice: Are you sure?

Mr. Cleary: Positive.

Unidentified Justice: 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,--

Unidentified Justice: I know a Mexican named McCarthy.

Mr. Cleary: --Right.

They might have been Mexican.

Unidentified Justice: Oh sure.

Mr. Cleary: Your Honor is correct.

Unidentified Justice: 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--

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

Mr. Cleary: --Your Honor--

Unidentified Justice: 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.

Unidentified Justice: 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.

Unidentified Justice: Did you argue that to the judge?

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

Unidentified Justice: Did you argue that to the judge?

Mr. Cleary: --I only said that... I just--

Unidentified Justice: 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.

Unidentified Justice: Pro se, pro se?

Mr. Cleary: That is correct, Your Honor.

And I cited all--

Unidentified Justice: 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.

Unidentified Justice: 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.

Unidentified Justice: 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--

Unidentified Justice: 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--

Unidentified Justice: 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.

Unidentified Justice: 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.

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

Mr. Cleary: Well the question is as to--

Unidentified Justice: Of course, with Orientals, you have a different color than Caucasian, so are blacks.

But are Mexicans?

Mr. Cleary: --Well if I--

Unidentified Justice: A different race?

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

Unidentified Justice: 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--

Unidentified Justice: 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.

Unidentified Justice: 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--

Unidentified Justice: 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--

Unidentified Justice: 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.

Unidentified Justice: 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.

Unidentified Justice: 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--

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

Mr. Cleary: --That is correct, Your Honor.

Unidentified Justice: 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.

Unidentified Justice: 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.

Unidentified Justice: 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?

Unidentified Justice: 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.

Unidentified Justice: 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--

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

Mr. Cleary: --Yes, Your Honor, it would.

Unidentified Justice: I thought so.

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--

Unidentified Justice: 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--

Unidentified Justice: Provided the defendant is a Mexican?

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--

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

Mr. Cleary: --Precisely.

And the answer is--

Unidentified Justice: And the all Negro jury opposed against Negroes?

Mr. Cleary: --There--

Unidentified Justice: You could have that.

Mr. Cleary: --Well I think that a person--

Unidentified Justice: Is there any way... is there any end to this?

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.

Unidentified Justice: 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--

Unidentified Justice: 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?

If requested by the defendant?

Mr. Cleary: --There is no--

Unidentified Justice: 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--

Unidentified Justice: 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.

Unidentified Justice: It has to be one of the defendants.

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.

Unidentified Justice: 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.

Unidentified Justice: Exactly.

Mr. Cleary: My question was, precisely only antagonisms as towards Mexicans.

Unidentified Justice: Well all right.

But then, I didn't understand your answer I guess.

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.

Unidentified Justice: 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--

Unidentified Justice: 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--

Unidentified Justice: You'd have to--

Mr. Cleary: --The antagonism towards... three, Mexican, black or a group of a group of--

Unidentified Justice: --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--

Unidentified Justice: 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--

Unidentified Justice: So counsel is going to run the government?

Mr. Cleary: --No, I--

Unidentified Justice: 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.

Unidentified Justice: 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.

Unidentified Justice: 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--

Unidentified Justice: 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.

Unidentified Justice: 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--

Unidentified Justice: 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--

Unidentified Justice: 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.

Unidentified Justice: 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--

Unidentified Justice: 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.

Unidentified Justice: 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--

Unidentified Justice: 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--

Unidentified Justice: But you argued to the... this is from the Ninth Circuit, is it?

Mr. Cleary: --That's correct, Your Honor.

Unidentified Justice: 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--

Unidentified Justice: 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--

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.

Unidentified Justice: 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--

Unidentified Justice: I know.

But what if he hadn't asked about aliens?

Mr. Jones: --The question was about illegal aliens.

Unidentified Justice: 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.

Unidentified Justice: 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--

Unidentified Justice: 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.

Unidentified Justice: 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.

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

Mr. Jones: Well, there's no discretion in some other circuits.

Unidentified Justice: That's what I... so it's not, you would even get to the discretion problem?

Mr. Jones: That's right.

Unidentified Justice: 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--

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

Mr. Jones: --That's right.

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

Mr. Jones: That's right.

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

Mr. Jones: As Petitioner also points out--

Unidentified Justice: 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.

Unidentified Justice: Right.

Every case it says may.

Mr. Jones: Right.

Except that, it says shall permit counsel to submit supplemental questions.

Unidentified Justice: 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.

Unidentified Justice: 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.

Unidentified Justice: Well why?

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

Unidentified Justice: Fact that he's Japanese.

Mr. Jones: --somewhat offensive, or at least be very sensitive.

Unidentified Justice: You're really moving out, now.

What about the Germans?

Mr. Jones: Excuse me?

Unidentified Justice: 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.

Unidentified Justice: 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.

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

Mr. Jones: No.

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

Mr. Jones: Excuse me?

Unidentified Justice: 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--

Unidentified Justice: Well he's arguing for either alternative.

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--

Unidentified Justice: 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--

Unidentified Justice: 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--

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

That's right.

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

Mr. Jones: --I think that's... I am inclined to agree with your interpretation.

Unidentified Justice: 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.

Unidentified Justice: 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.

Unidentified Justice: 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.

Unidentified Justice: 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--

Unidentified Justice: 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--

Unidentified Justice: --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--

Unidentified Justice: 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--

Unidentified Justice: 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--

Unidentified Justice: 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.

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

Mr. Jones: That's right.

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

Mr. Jones: Right.

And the trial took place in San Diego.

Unidentified Justice: 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--

Unidentified Justice: 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.

Chief Justice Burger: We'll reflect further on that during the noon hour and we will resume at one o'clock.

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.

Chief Justice Burger: Thank you gentlemen, the case is submitted.

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Ristaino v. Ross - Oral Argument, Part 1

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Ristaino v. Ross - Oral Argument

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Argument of Michael G. West

Chief Justice Warren E. Burger: We will resume arguments in Ristaino against Ross, Mr. West?

Mr. Michael G. West: Mr. Chief Justice and May I please the Court, Good morning.

Just prior to yesterday’s recess, I was discussing this Court’s decision in Daniels versus Louisiana.

which held Taylor versus Louisiana not retroactive and in particular, that part of the Daniels case dealing with the effect upon the criminal justice system.

If Taylor were held to be retroactive.

Ross’s contention is that the retroactive application of Ham, no doubt will some effect on the criminal justice system within the Commonwealth of Massachusetts.

But not the calamitous effect, urged on this Court by the Commonwealth.

We also suggest that the decision of the First Circuit in Ross does not have the wide ramification suggested by the Commonwealth.

Yesterday, I mentioned the couple of those limitations, but one that I would like to mention now and what triggers the Ross Doctrine in asking questions as to racial prejudice is that the Defense Counsel must submit questions to the Trial Judge to ask the perspective Jurors.

Failure to do that and failure of the Trial Judge to refuse those questions, or similar questions to the same effect, will not bring the Doctrine in Ham or Ross into existence.

Also, as a practical matter, in order to challenge one’s conviction based upon the Ham case, a criminal Defendant probably would still have to be in jail.

There has been -- 36 months have pass since the Ham decision.

Presumably, all States except Massachusetts has followed the Ham decision and even in Massachusetts, in the second Ross decision, the Supreme Judicial Court although affirming Ross’s conviction said that in future cases, it is good policy to ask these questions as to racial prejudice, although not constitutionally required.

And in addition, the legislature of Massachusetts has twice, since the second Ross decision in May of 1973 revise the statute upon which this suit is predicated to for now provide that the Trial Judge must ask or shall ask, questions as to racial prejudice to the perspective jurors.

Unknown Speaker: Mr. West what is that, the new statute and would any defendant ask for it?

Mr. Michael G. West: Yes.

Unknown Speaker: No matter what the situation?

Mr. Michael G. West: Yes.

In addition, it appears that the statute says and it is on page 42 of my brief.

Unknown Speaker: And whether or not there are any witnesses, you do no have to suggest --

Mr. Michael G. West: No.

Unknown Speaker: The witnesses are going to be?

Mr. Michael G. West: No.

Only if the Court believes that this possible pre-conceived opinions towards the credibility of certain classes of persons, they do not limit it to racial prejudice.

Unknown Speaker: What do you think the scope of the Constitutional, a rule should be?

Mr. Michael G. West: Well, I think that it is at least --

Unknown Speaker: Our constitutionally entitled to the question?

Mr. Michael G. West: Certainly, Defendants of racial minority are clearly covered in my opinion.

Also, I would take the position of the dissent in the Ham case and that is that questions that arises to a serious nature of prejudices should also be included such as the beard in the Ham case.

Such as someone’s religious preference.

Unknown Speaker: But what if the defendant is not a member of the minority group?

Mr. Michael G. West: Well, it depends on the case your Honor.

For example, if the case involved capital punishment?

I think that it would be constitutionally required to ask.

Unknown Speaker: I am talking about racial.

Mr. Michael G. West: Yes.

Unknown Speaker: What kind of -- suppose the defendant is not a member of the minority he asks for that the jury be interrogated about racial prejudice?

Mr. Michael G. West: I think in that case, it is up to the Trial Judge to find out if there is any possible racial prejudice in that case.

For example.

Unknown Speaker: So, you are saying --

Mr. Michael G. West: The victims or the defendant, or the witness --

Unknown Speaker: So, you really, so you say it is not limited to where the defendant is a member of the minority group?

Mr. Michael G. West: That is correct, and I think I answered it yesterday for Mr. Justice Rehnquist.

Unknown Speaker: Now where does it stop.

Any Defendant at any time, I take it then could be constitutionally entitled to have the Jury interrogated about racial prejudice, if he ask for it.

Mr. Michael G. West: If he asks for it and if the nature of the case, at all suggests that the question of black and white is part of that case.

Either if the defendant or the victim or a witness is of another racial minority.

I think in those cases, it is constitutionally required.

Unknown Speaker: Well, I gather then the Judge has to be acquainted, because what may develop during the trial as to the identity of the witnesses?

Mr. Michael G. West: Yes.

Unknown Speaker: You say they might be maybe a white accused but to maybe, you have a black witness?

Mr. Michael G. West: That is right.

Unknown Speaker: But the Judge and Defense Counsel has first to tell the Judge, listen and then the Judge has to make a preliminary determination, as I understand your brief.

That questions jurors who may have prejudices?

Mr. Michael G. West: That is right.

Unknown Speaker: But the Defense Counsel has a burden?

Mr. Michael G. West: That is right and if failure of the Defense Counsel to submit any questions, automatically does not trigger either the Ham doctrine apparently, or the Ross doctrine of the First Circuit.

Unknown Speaker: But why do you limit the right to a member of the minority?

I suppose you would say any Defendant, white or black.

Mr. Michael G. West: That is right.

Unknown Speaker: Could have the instruction, but how about the prosecution?

Mr. Michael G. West: Yes, I believe so.

Unknown Speaker: But the defense can not get it by asking for it because I understand what you brief says you do not quote the full statute.

But the Judge has to be satisfied that some Jurors may have prejudices?

Mr. Michael G. West: That is right, and that is exactly the Ross case because there were not only one question submitted by Ross but Co-counsel or Co-Defendants Counsel submitted approximately 30 questions.

Unknown Speaker: Now, what I am getting at it is I understand that statute.

There is a burden on the defense.

Persuade the Judge that this is a situation and this trial will involve situations where Jurors may have prejudices.

Mr. Michael G. West: That is right.

Unknown Speaker: And, until he persuades him of that, the Judge has no duties.

I understand it to permit these questions.

Mr. Michael G. West: That is right.

Unknown Speaker: Is that right?

Mr. Michael G. West: Yes, and in fact I think there is a further burden, not only to submit that and to convince the Judge that there is a possibility of prejudice, but in Ross case, I think the Judge was sort of convinced of that, that they maybe some prejudice except he felt that asking these questions would not be helpful.

Unknown Speaker: But all of you would say -- to persuade the Judge, you would say you would not have to show any more other than the witness, as black?

Mr. Michael G. West: Yes.

Unknown Speaker: That is all you have to show.

Mr. Michael G. West: I would think so your honor and I think the—

Unknown Speaker: If you have to show anymore, I take it you question the constitutionality the statute.

Mr. Michael G. West: That is right and that is exactly what we are doing here because these—

Unknown Speaker: Well, that is almost a per se rule then?

As I understand you, all you have to say, the Judges, the defense is going to have a black witness and then he must permit the questions

Mr. Michael G. West: Yes.

Unknown Speaker: When they ask of the.

On that basis you says, I do not know what you would not say that as long as the Jury is mixed, you must ask the Jury this question because witnesses are either going to be white or black.

Mr. Michael G. West: Yes.

I think those questions are constitutionally required particularly however in cases of violent crimes.

At the moment, I am prepared to limit the -- my per se rule to violent crime because those apparently are crimes in which racial prejudice most stands out.

Unknown Speaker: (Inaudible)

Mr. Michael G. West: I do not believe so and I do not think it is in the appendix either.

Unknown Speaker: Why do you limit it to violent crime?

Mr. Michael G. West: Well, first of all, the First Circuit limited to violent crimes.

Unknown Speaker: But, you are taking the position here that it should be limited to violent crime.

Mr. Michael G. West: Yes.

My personal preference would be for all crimes.

But, for purposes of this argument, I think I would limit to violent crimes because those have the most potential for racial prejudice.

Unknown Speaker: Well, how about demonstrations convictions for disturbing the peace to those who have no violent overtones and yet certainly during the 60’s, there were occasional racial implications of those cases.

Mr. Michael G. West: Yes.

As I said, my personal preference would be to have it for all crimes such as the Ham case was certainly not a violent crime.

Unknown Speaker: No.

Mr. Michael G. West: Possession of marijuana.

Unknown Speaker: (Inaudible) satisfy as your personal preferences.

Mr. Michael G. West: Which statute Your Honor?

Unknown Speaker: This new statute.

Apparently the new statute is not limited to a cases of prosecutions from violent crime, is not it?

Mr. Michael G. West: Well, it is not.

It does not satisfy me however because in reading the new statute, it has to be triggered by the Judge, meaning the Judge has to be persuaded that there are some factors.

And, I would like to take that discretion from the Judge and trigger this question.

Unknown Speaker: I also understand that as you told us earlier that it is a per se rule.

Once you say we have a black witness or you suggest it to Justice White, if you have a mixed jury, black and white, are then, automatically the Judge has to ask the question.

He has not discretion.

Mr. Michael G. West: No, he has to ask the question if Defense Counsel requests it.

Unknown Speaker: Or you would want him to ask him without a request from Defense Counsel?

Mr. Michael G. West: No, no, no.

I would limit that to only when Defense Counsel asked those questions.

I think that is the strategy decision of Defense Counsel whether to inject that issue into the trial.

Unknown Speaker: (Inaudible)

Mr. Michael G. West: Yes, in my opinion it would.

Justice Thurgood Marshall: If it was just a purely technical, suppose the witness was the ballistics expert.

Mr. Michael G. West: I think those technical witnesses have severe impacts on Juries, and I would certainly include that type of a witness in my discussion.

Justice Thurgood Marshall: (Inaudible)brought in the Birth Certificate?

Mr. Michael G. West: Well, I think certainly—I would even do it in that case because the birth certificate may well be a crucial issue in the case.

Justice Thurgood Marshall: What, would you demand that brings it have nothing to do with the certificate?

Mr. Michael G. West: Yes.

I understand that.

Justice Thurgood Marshall: I guess one if you want to paint with a pretty broad brush.

Mr. Michael G. West: I think I am and I think that in issues of racial prejudice when must paint with a broad brush because of the Fourteenth Amendment, and the purpose behind the Fourteenth Amendment, to stop invidious discrimination, and I think that when you give Judge's discretion in this area, you wind up with cases like the Ross case, limited to special circumstances or when one is the special target for racial prejudice.

And, I think that I would rather air on the side of the being broader in this area, than being limited and restricted as I think the Supreme Judicial Court was.

Justice Thurgood Marshall: (Inaudible) but you are not sure we can figure at this time?

Mr. Michael G. West: Well, I cannot be sure.

Unknown Speaker: Mr. West, you continue to talk in terms of racial prejudice there can be all sorts of prejudice, disassociated with Reyes, it was not down any years ago that a Republican in Mississippi but not the most popular fellow, or today, a member of the Irish Republican Army might find himself unwelcome in some communities, would you extend the constitutional rule to any situation in which arguably there might be prejudice against particular Defendant or a particular witness in the case?

Mr. Michael G. West: Yes, I would.

And, the decision of yours in Ham approves those State cases upon which all which relied.

And, some of the State cases deal with of—I remember one of them dealt with a Political Party, the no-nothing-party.

I think it was people versus Reyes.

Although, I am not sure of the name of the case and that case was approved by this Court, which included that that one must ask questions as to prejudice against.

Justice William H. Rehnquist: Mr. West, I wrote Ham and we did not approve those cases.

We sighted them and we made it quite clear in Ham that the principle was based on Equal Protection clause and the racial implications of the Fourteenth Amendment.

Mr. Michael G. West: Although as I recall in your decision Mr. Justice Rehnquist, you said that you relied on Ham, and all those State cases upon which Ham relied.

And, I took that as you approved the ore reaffirm Aldrich and you also reaffirmed those State cases upon which Aldrich relied.

Justice William H. Rehnquist: Well, how then would you explain our rejection of the voir dire request with respect to Beers?

Mr. Michael G. West: Well, I think that what you were saying was that the Beer Controversy did not rise to a serious level.

That did not rise to a constitutional right.

Although, certainly the one has to raise it but very careful to limit it to because of the purpose of the Fourteenth Amendment.

Justice William H. Rehnquist: Well, then so limiting, I do not see how you can say that the case itself stands for anything more than that?

Mr. Michael G. West: Well, it was just from your language Mr. Justice Rehnquist that I assumed that you were affirming those State cases.

In fact, I am trying to find that --

Justice William H. Rehnquist: There is the language it says that referring to all and read it, it says the Courts opinion relied upon a number of State Court holdings throughout the Country, to the same effect.

But, it was not expressed and grounded upon any constitutional requirement.

Now, I take it at some of the State cases were grounded in a constitutional requirement?

Mr. Michael G. West: Yes, the Sixth Amendment.

Justice William H. Rehnquist: Well, so Aldrich could not possibly have itself have approved those cases because it did not rest on the constitutional ground.

Mr. Michael G. West: Yes, except the language that I have quoted in some papers in front of me.

It says that the Aldrich conviction relied on -- the Ham conviction was relying on the firmly established precedented Aldrich, and the numerous State cases upon which it rely.

And, I took that to mean that—

Unknown Speaker: Where did you get that one?

Mr. Michael G. West: It was from the Ham case itself.

If I can have a moment later on, if you would like, I could find the exact language, Your Honor.

If I can continue?

The point I was trying to make is that this Court does not have to reach the issue of the impact on the criminal justice system to Massachusetts or the good faith reliance on prior precedent because the issue in Ham goes precisely to the truth finding function of the Jury and errand the suspect, Ross’s conviction and therefore according to the William’s case, would invoke the retrospective application of Ham, without regard to good faith reliance and effect on the criminal justice system.

We are here dealing not with an exclusion of evidence case or an illegal search and seizure case, which this Court has generally not held to be retroactive.

But, we are dealing with the case which shows the possibility, the probability, the likelihood that the Ross jury acted in arbitrary way, not based upon the evidence and but rather based upon the race of Mr. Ross, and the conviction resulted there from.

The purpose of applying Ham retroactively would be to guarantee an accused a totally fair and impartial tribunal, and, to protect the integrity and dignity of the judicial process, from any hint of bias or prejudice.

Ross was not afforded either of these protections.

The duty that the Court’s of the Commonwealth to Massachusetts owes the James Ross Jr. requires no less.

If I can move on to the issue of the applicability of Ham to Ross, Ham as you know, was a case involving the possession of Marijuana.

The Trial Judge was asked two question to ask the perspective Jurors two questions, he refused to do so.

And, ask only those general questions provided in the South Carolina statute.

This Court said that the missing element in the Ham decision was that the Court did not focus the attention of the perspective Jurors as to any racial prejudice they might entertain.

And, I would suggest to this Court that that is also the missing element in the Ross case.

The Ham case and the Ross case are most similar.

Each involved the black defendant.

In each the principal witness was a Police Officer or Quasi Police Official.

In the Ross case, he was a Security Officer, dressed in the Boston Patrolman’s uniform, patrolling Boston University.

In order to be found guilty, both Ham and Ross needed the unanimous verdict.

Each final Jury was composed of 10 whites and 2 blacks.

The statutes upon which each State operates is almost identical, asking the same questions.

The procedure in each State is the same.

So, even wide discretion to the Trial Judge.

And in each case, two Jurors were excused because of racial prejudice, in the Ham case and the Ross case.

And finally, each question that was presented to this Court for decision in the cert petitions filed by Ross and Ham were almost identical.

Aldrich was a case whose facts are strikingly similar to Ross.

The Ham case relied I think heavily on Aldrich and affirmed Aldrich, and I think the significance of the Ham case was that it reaffirmed Aldrich and gave it explicit constitutional underpinnings.

Ross asserts that the trial judge failure to ask specific questions as to racial prejudice is not only constitutional error, but requires reversal without the need to show actual prejudice.

It is twistic logic as the Commonwealth asserts that on the one hand, Ross was not entitled to have these questions asked.

But on the other hand, he must show actual prejudice.

One wonders how a criminal defendant can show actual prejudice without being able to ask questions of perspective jurors.

Unknown Speaker: You said reversal or you meant affirmance?

Mr. Michael G. West: I meant the reversal of this conviction and affirmance of the Court of Appeals decision.

Can the Commonwealth assure James Ross, that any error here was harmless beyond the reasonable doubt?

Can the Commonwealth assure this Court that not one of the jurors chosen, harbored any prejudice against Ross because of his race?

We can not, especially because of the conclusions, reached by the Kerner Commission and the recent events concerning racial segregation and integration in Boston, even if one the 12 jurors were prejudiced against Ross, his right to a fair trial was impaired.

Seemingly in recognition of the difficulty of criminal defendants to show actual prejudice, this Court on several occasions has dispensed with this requirement.

In Aldrich, and in Ham, in Peter versus Kiff, the Court said more over, if there is no showing of actual bias in the tribunal, this Court has held, Due Process is denied by circumstances that create the likelihood or the appearance of bias.

Same result in Taylor versus Louisiana, the defendant there did not allege that the failure to have woman on the jury was actually prejudicial.

In conclusion and summary, although Massachusetts abolished slavery in 1783, racism is still part of American life.

So much so that the Kerner Commission report stated 1968 that race prejudice has shaped our history decisively in the past, and now threatens to do so again.

One cannot doubt the validity of that part of the Kerner Commission report.

Certainly, this Court in both Aldrich and Ham have recognized that problem and Ross asked that you do so again.

Failure to afford James Ross, a new trial after struggling for over 5 years, and 7 appellate hearings is as stated so eloquently by Mr. Justice Marshall to see this Court’s decision in Ham versus South Carolina still born, and to write an epitaph for those essential demands of fairness, recognized by this Court over 40 years ago in Aldrich.

Thank you.

Chief Justice Warren E. Burger: Do you have any further Mrs. Smith?

Argument of Barbara A. H. Smith

Ms Barbara A. H. Smith: Yes, Your Honor.

I would just like to address the Court on the new statute to which is Mr. West is referred too.

That statute requires that the trial judge make a determination, whether the circumstances of the case require that the questions be posed.

Unknown Speaker: (Inaudible)

Ms Barbara A. H. Smith: Pardon me?

Unknown Speaker: Has a procedure been developed for the Administration of the statute at trial?

Ms Barbara A. H. Smith: Not to my knowledge.

Not to my knowledge, Your Honor.

Unknown Speaker: You, I think in an answer to this question, we were told that the statute itself is not here in the papers, but is it paraphrased anywhere or described—

Ms Barbara A. H. Smith: Mr. West I believe, has referred to it in his brief.

Rebuttal of Michael G. West

Mr. Michael G. West: On page 42.

Unknown Speaker: Page 42 of --

Chief Justice Warren E. Burger: (Inaudible)

Mr. Michael G. West: No, it is only the recent Amendment Your Honor.

Rebuttal of Barbara A. H. Smith

Ms Barbara A. H. Smith: I would be very happy to send the copy, I will and give that to you now if you like.

That was the only further comment.

Chief Justice Warren E. Burger: Very well, thank you.

The case is submitted.

Attribution:

The OYEZ Project

Featured:

Ham v. South Carolina - Oral Argument

Thu, 23 Aug 2012 18:22:51 +0000

Case:

Ham v. South Carolina

Media File:

71-5139_19721106-argument.mp3

Related Transcript:

71-5139_19721106-argument

Transcript:

Argument of Jonathan Shapiro

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Instead, he posed three questions to the perspective jurors.

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

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

It was hurried, formalistic and routine.

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

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

No further examination was gone into in any case.

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

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

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

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

Mr. Jonathan Shapiro: Yes.

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

Mr. Jonathan Shapiro: That’s correct.

Justice Potter Stewart: TWL?

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

Justice Potter Stewart: Right.

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

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

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

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

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

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

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

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

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

I’m not going to do it.

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

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

Mr. Jonathan Shapiro: Exactly.

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

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

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

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

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

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

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

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

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

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

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

Mr. Jonathan Shapiro: There are five judges.

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

Mr. Jonathan Shapiro: That’s correct.

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

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

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

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

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

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

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

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

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

Mr. Jonathan Shapiro: No.

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

Mr. Jonathan Shapiro: I would think certainly not.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Mr. Jonathan Shapiro: We think that it was.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The judge went from one to the other asking each.

Justice William J. Brennan: And repeated the question.

Mr. Jonathan Shapiro: That’s correct.

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

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

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

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

Mr. Quinn.

Argument of Timothy G. Quinn

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

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

It basically appeared to be two issues involved.

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

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

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

In this case, there was no such showing.

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

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

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

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

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

Mr. Timothy G. Quinn: Page 12.

Chief Justice Warren E. Burger: Thank you.

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

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

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

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

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

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

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

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

The petitioner was present in the courtroom.

He was within view of the jury.

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

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

The State contends, not.

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

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

Justice Thurgood Marshall: Which juror.

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

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

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

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

Mr. Timothy G. Quinn: Yes.

Justice Thurgood Marshall: Do you?

Mr. Timothy G. Quinn: Yes, sir.

Justice Thurgood Marshall: Or juror?

Mr. Timothy G. Quinn: Yes, sir.

Justice Thurgood Marshall: For what reason?

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

Justice Thurgood Marshall: They ought it?

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

Justice Thurgood Marshall: (Inaudible).

Mr. Timothy G. Quinn: Yes, sir.

I apologize.

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

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

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

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

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

Justice Thurgood Marshall: Same questions?

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

Justice Thurgood Marshall: Have you read Witherspoon against Illinois?

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

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

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

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

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

Clearly there was no such showing in the instant case.

Was the petitioner denied the opportunity to make such showing?

Did it have any grounds to suspect bias or prejudice?

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

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

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

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

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

I think that was within his discretion to do so.

But I personally do not think anything has been lost.

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

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

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

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

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

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

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

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

That’s correct.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Justice Potter Stewart: Which is not a constitutional decision?

Mr. Timothy G. Quinn: That’s correct.

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

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

Justice Potter Stewart: That’s a different issue.

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

Justice Potter Stewart: That’s Powell against Alabama.

Mr. Timothy G. Quinn: Yes.

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

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

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

Justice Thurgood Marshall: But you could have a bias?

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

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

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

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

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

I don’t think that anyone can.

I don’t think that any --

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

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

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

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

Justice Thurgood Marshall: Thank you.

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

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

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

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

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

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

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

It must be some compromise.

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

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

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

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

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

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

Mr. Shapiro you got a few minutes left.

Rebuttal of Jonathan Shapiro

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Mr. Jonathan Shapiro: No.

We think that --

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

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

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

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

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

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

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

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

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

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

Justice Potter Stewart: But where are those cases cited?

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

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

Thank you.

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

I know your red light is on.

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

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

The Court certainly did not explicitly refer the Constitution.

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

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

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

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

Mr. Jonathan Shapiro: Right.

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

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

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

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

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

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

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

As --

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

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

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

Now in the case where there --

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

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

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

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

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

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

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

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

Or did I miss something.

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

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

Mr. Jonathan Shapiro: And the question --

Justice Thurgood Marshall: Okay.

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

Justice Thurgood Marshall: 36?

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

Justice Thurgood Marshall: Where is that now?

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

Justice Thurgood Marshall: Where do we start in that?

Mr. Jonathan Shapiro: Proposed question number 4.

Justice Thurgood Marshall: That’s proposed question.

Mr. Jonathan Shapiro: That’s correct.

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

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

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

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

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

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

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

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

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

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

Justice Thurgood Marshall: Well where is that?

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

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

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

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

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

Mr. Jonathan Shapiro: No.

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

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

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

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

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

Justice Thurgood Marshall: Where is that in the record?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The other three had nothing whatsoever to do at pretrial.

Mr. Jonathan Shapiro: That’s right.

The fourth question which of course --

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

Mr. Jonathan Shapiro: That is correct.

Justice Potter Stewart: Right.

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

Thank you Mr. Quinn.

The case is submitted.

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