holding peremptory challenges violates the equal protection rights of that the trial court did not commit manifest error by finding both the defendant and the challenged juror. In Batson v. the jurors to be impartial, even though eight jurors admitted Kentucky, 476 U.S. 79, 89 (1986), the Supreme Court held that, due to pretrial publicity, “at some time [prior to trial] that “the Equal Protection Clause forbids the prosecutor to they had formed an opinion as to [defendant’s guilt]”
How later courts described this case
- holding peremptory challenges violates the equal protection rights of that the trial court did not commit manifest error by finding both the defendant and the challenged juror. In Batson v. the jurors to be impartial, even though eight jurors admitted Kentucky, 476 U.S. 79, 89 (1986), the Supreme Court held that, due to pretrial publicity, “at some time [prior to trial] that “the Equal Protection Clause forbids the prosecutor to they had formed an opinion as to [defendant’s guilt]”
- holding that the trial court did not err in finding that the jury was impartial, even though “77% [of the venire] admitted they would carry an opinion in to the jury box,” because the “relevant question is not whether the community remembered the case, but whether the jurors . . . had such fixed opinions that they could not judge impartially”
- explaining that with either a direct appeal or habeas petition, challenges of juror bias involve a "determination . . . essentially . . . of credibility, and therefore largely one of demeanor," thus, as the Supreme Court has consistently held, "the trial court's resolution of such questions is entitled . . . to special deference."
- explaining that a trial court’s ruling on a challenge for cause receives “special deference” because “the determination has been made only after an often extended voir dire proceeding designed specifically to identity biased veniremen” and “the determination is essentially one of credibility, and therefore largely one of demeanor”
Written by the judges who cited it.
The opinion
Justice Stevens,
with whom Justice Brennan joins,
dissenting.
On page 1 of its opinion the Court carefully states certain facts that give the reader a strong feeling about how this case should be decided. In 1966, Jon Yount confessed that he was responsible for the brutal killing of an 18-year-old high school student. At his first trial in 1966 he testified that he had been temporarily insane at the time, but the jury did not believe him. He was found guilty of rape, as well as murder. These facts were not admissible in evidence at his second trial. What impact, if any, did these inadmissible facts have upon 12 jurors, the 2 alternate jurors, and indeed the trial judge, who listened to the evidence at Yount’s second trial in 1970? The Court is satisfied that “community sentiment had *1041 softened,” ante, at 1032, and that the trial judge “did not commit manifest error in finding that the jury as a whole was impartial,” ibid., because of the passage of time between 1966 and 1970, and because we all know that “time soothes and erases,” ante, at 1034.
In order to explain why I disagree with the Court’s assessment of the case, it is necessary to enlarge upon its summary of the news coverage of the crime and its aftermath, to supplement its discussion of the examination of the jurors, and to explain why the Court of Appeals properly rejected the trial judge’s conclusion that the jury as a whole was impartial. Next, I will discuss my disagreement with the Court’s conclusion regarding juror Hrin. Finally, I shall add a word about the more profound issue that a case of this kind raises.
HH
Because the Court places such great emphasis on the fact that “this lapse in time had a profound effect on the community and, more important, on the jury, in softening or effacing opinion,” ante, at 1033, it is important to note that there were, in effect, three chapters in the relevant news coverage: the stories about the crime itself and the first trial in 1966; the stories and events surrounding the State Supreme Court’s reversal of the first conviction in 1969; and the stories that were published in 1970 immediately before the second trial began and while the jury was being selected.
The relevant events all occurred in Clearfield County, Pa., where both Yount and the victim lived. It is a rural county, with a population of about 70,000, served by two newspapers with a combined circulation of about 25,000. Not surprisingly, both newspapers gave front-page coverage to the homicide, the pretrial proceedings, and the trial itself. In numerous editions of the DuBois Courier Express, the newspaper carried banner headlines on the front page, news stories and feature articles. App. 520a-641a; Record, Ex. P-l-a, P-l-b, P-l-d, P-l-f to P-l-t. The Clearfield Progress evaluated the trial as the “Top News Story of *1042 1966.” Record, Ex. P-2, p. 2. Both papers reported that public interest in the proceedings was “unprecedented.” 710 F. 2d 956, 962 (CA3 1983). Moreover, the case also received radio and television coverage, see, e. g., Tr. (Nov. 4, 1970) 64 (juror number 1), 142, 220, 277, and, according to the Court of Appeals, was publicized in out-of-state and national publications. 710 F. 2d, at 962, n. 6 .
The articles were extremely detailed. 1 As the Court of Appeals noted, they “related in full [Yount’s] detailed written confessions as well as his testimony at trial retelling the homicide. They also detailed [Yount’s] defense of temporary insanity, the charge and evidence of rape, and finally [Yount’s] conviction on October 7, 1966, of both rape and first-degree murder.” Id., at 963 ; see, e. g., App. 538a-540a, 603a-606a. As this Court notes, “the extensive adverse publicity and the community’s sense of outrage were at their height prior to Yount’s first trial in 1966,” ante, at 1032.
In 1969, a divided Supreme Court of Pennsylvania reversed Yount’s conviction and ordered a new trial. Commonwealth v. Yount, 435 Pa. 276 , 256 A. 2d 464 (1969), cert. denied, 397 U. S. 925 (1970). This event did not pass unnoticed in Clearfield County. To the contrary, banner headlines announced the reversal. App. 642a; Record, Ex. P-l-v. The local press reprinted the entire dissenting opinion. App. 644a; Record, Ex. P-l-x. And, as the Court of Appeals stated, “a local radio program became a forum in *1043 which callers expressed their hostility to [Yount].” 710 F. 2d, at 963 . This evidence contradicts the easy assumption that “community sentiment had softened,” ante, at 1032.
In 1970, Yount was returned to Clearfield County for a retrial in the same courtroom before the same judge who had presided at the first trial — the judge whose erroneous rulings had made the second trial necessary. Yount moved for a change of venue on the ground that the continuing discussion of the case among local residents made it impossible for him to receive a fair trial in Clearfield County. In response the prosecutor argued that a change of venue would be pointless because the case had been so widely publicized throughout the State. The trial court denied the motion, explaining that the recent newspaper items had consisted of purely factual reporting “without editorial comment of any kin[d].” App. 260a. This venue ruling generated a front-page article. Id., at 654a; Record, Ex. P-l-gg. Additionally, during the subsequent voir dire, the selection of jurors merited numerous articles and sometimes merited a profile on the juror selected. App. 658a-659a, 661a-663a, 664a-671a; Record, Ex. P-1-11, P-l-nn to P-l-vv; P-2.
The voir dire testimony of one prospective juror, the wife of a minister, sheds a revelatory light on the character of local sentiment on the eve of the second trial. After acknowledging that she had heard many opinions about the case, she was asked:
“Q. Would your presence in serving as a juror create a difficulty in your parish?
“A. Why yes — when people heard my name on for this — countless people of the church have come to me and said they hoped I would take — the stand I would take in case I was called. I have had a prejudice built up from the people in the church.
“Q. Is this prejudice, has it been adverse to Mr. Yount?
*1044 “A. Yes it was. They all say he had a fair trial and he got a fair sentence. He’s lucky he didn’t get the chair.
“[T]he church people — I haven’t asked for any of this but they discuss it in every group — but they say now since you are chosen and you will be there we expect you to follow through.
“Q. Notwithstanding what the Court would tell you, you feel you would be subject to the retributions or retaliation of these people—
“A. I think I would hear about it.” App. 25a-27a.
The minister’s wife was excused. Her testimony, as well as that of other veniremen who were excused, not only repudiates the notion that the community had all but forgotten the Yount case, but also suggests that some veniremen might have been tempted to understate their recollection of the case because they felt they had a duty to their neighbors “to follow through.” 2 In all events, the record clearly establishes that the case was still a “cause célebre” in Clearfield County in 1970.
II
Even if all the voir dire testimony is accepted at face value, it is difficult to understand how a neutral observer could conclude that the jury as a whole was impartial. Before referring to the 12 jurors and 2 alternates who were selected, it is useful to describe the attitude that pervaded the entire venire.
The jury selection took 10 days. Id., at 745a; 710 F. 2d, at 963, 975 . Out of an original total of 292 veniremen, the court dismissed 129 because they had been chosen improperly, Tr. 685-686, or had a valid reason for not serving. Id., at 117-118, 492, 1039, 1060-1061. Of the remaining 163 who *1045 were questioned, all but 2 had read or heard about the case, id., at 127a-128a, 370a-371a (juror number 4); all but 42 were dismissed for cause. 710 F. 2d, at 963 . Of the 121 dismissed for cause, 96 testified that they had firm opinions that could not be changed regardless of what evidence might be presented. Twenty-one others testified that they could only change their opinion if Yount could convince them to do so. In addition, there were nine veniremen who were unsuccessfully challenged for cause who also testified that they had opinions that they could change only if Yount could convince them to do so. 3 Id., at 963-964 . Thus, as Judge Hunter summarized for the Court of Appeals:
“When we combine those nine with the 117 veniremen dismissed for cause, we find that a total of 126 out of the 163 veniremen questioned on the case were willing to admit on voir dire that they would carry their opinion[s] into the jury box.” 4 Id., at 964 .
Turning to the jurors who were actually selected, Judge Hunter accurately noted that “the publicity had reached all but one of the twelve jurors and two alternates finally empanelled.” Ibid, (footnote omitted); App. 32a, 43a, 71a, 83a, 98a, 120a, 149a, 163a, 176a, 193a, 210a, 235a, 250a. Juror number 1 noted that “it was pretty hard to be here in Clearfield County and not read something in the paper” about the case; that she had read newspaper stories and lis *1046 tened to radio and television stories about the case; and that she had heard the case being discussed by other people. Id., at 32a. Juror number 2 testified that he had read about the case in the newspapers; that “[y]ou could hardly miss it on [radio and television] news”; and that he had formed an opinion about the case. Id., at 43a-44a. The person seated as juror number 3 5 stated that he had read about the case in the newspapers years before the voir dire but that he had not formed an opinion. Id., at 210a-211a. Juror number 4, a newcomer to the area, had never heard of the case. Id., at 57a-58a. Juror number 5 “remembered that they had said he was guilty before” and wondered why they were having another trial. Id., at 73a. James F. Hrin, juror number 6, testified that he had an opinion about the case and that he would require the presentation of evidence to change it. Id., at 83a, 85a. He noted that “[i]t’s rather difficult to live in DuBois and get the paper and find out what people are talking about — at least the local. . . people without having some opinion or at least reserving some opinion.” Id., at 88a. Juror number 7 stated that he had read about the case; that he had formed an opinion; and that he was not sure whether he still had an opinion. Id., at 98a-99a. Juror number 8 testified that she had heard others express opinions concerning the case and she only had an opinion “on just what he said himself — that he was guilty.” Id., at 120a, 125a. - Juror number 9 stated that she had felt that petitioner was guilty but that presently she would have to hear both sides before forming an opinion. Id., at 150a. Juror number 10 had heard people express their opinions and had on occasion expressed his own opinion about the case. He also stated that he would listen to both sides before forming a present opinion. Id., at 164a-165a. Juror number 11 testified that he had read newspaper accounts of the case but that he had *1047 formed no opinion. Id., at 177a. Juror number 12 had read about the case but she had formed no opinion. Id., at 193a-194a. Two alternates were seated over Yount’s challenges for cause. Alternate number 1 stated that he had heard people express opinions and ideas about the case; that he had expressed an opinion; that he still had a firm and fixed opinion based on what he read in the newspapers; and that he would require evidence to be presented before he could put his opinion out of his mind. Id., at 235a-240a. Alternate number 2 stated that she had formed a definite opinion and that she would require the production of evidence to change her mind. Id., at 251a-252a.
The totality of these circumstances convinces me that the trial judge committed manifest error in determining that the jury as a whole was impartial. The trial judge’s comment that there was little talk in public about the second trial, id., at 264a, is plainly inconsistent with the evidence adduced during the voir dire. Similarly, the trial court’s statement that “there was practically no publicity given to this matter through the news media . . . except to report that a new trial had been granted by the Supreme Court,” id., at 268a, simply ignores at least 55 front-page articles that are in the record. Record, Ex. P-1, P-2. Further, the trial judge’s statement that “almost all, if not all, [of the first 12] jurors . . . had no prior or present fixed opinion,” App. 264a, is manifestly erroneous; a review of the record reveals that 5 of the 12 had acknowledged either a prior or a present opinion. Id., at 43a-44a, 83a, 98a-99a, 150a, 164a-165a. The trial judge’s “practically no publicity” statement also ignores the first-trial details within the news stories. These included Yount’s confessions, testimony, and conviction of rape — all of which were outside of the evidence presented at the second trial. See id., at 643a-644a, 650a, 655a; Record, Ex. P-l-w, P-l-x, P-l-z, P-l-cc, P-l-hh. Under these circumstances, I do not believe that the jury was capable of deciding the case solely on the evidence before it. Smith v. Phillips, 455
*1048 U. S. 209, 217 (1982) (“Due process means a jury capable and willing to decide the case solely on the evidence before it”).
III
The Court today also rejects Yount’s claim that juror Hrin was erroneously seated over his challenge for cause. Before explaining why I disagree with this conclusion, it is necessary to set forth a more complete version of Hrin’s voir dire testimony than is set forth by the Court.
Hrin, in response to the prosecution’s questioning, gave the following testimony:
“Q. Have you formed any opinion as to the guilt or innocence of Mr. Yount?
“A. To the degree that it was written up in the papers, yes.
“Q. Is this a fixed opinion on your part?
“A. This is sort of difficult to answer. Fixed?
“Q. Let me ask — if you were to be selected as a juror in this case and take the jury box, could you erase or remove the opinion you now hold and render a verdict based solely on the evidence and law produced at this trial?
“A. It is very possible. I wouldn’t say for sure.
“Q. Do you think you could?
“A. I think I possibly could.
“Q. Then the opinion you hold is not necessarily a fixed and immobile opinion?
“A. I would say not, because I work at a job where I have to change my mind constantly.
“Q. Would you be able to change your mind regarding your opinion before becoming a juror in this case. That’s the way I must have you answer the question.
“A. If the facts were so presented I definitely could change my mind.
“Q. Would you say you could enter the jury box presuming him to be innocent?
*1049 “A. It would be rather difficult for me to answer.
“Q. Can you enter the jury box with an open mind prepared to find your verdict on the evidence as presented at trial and the law . . . presented by the Judge?
“A. That I could do.” App. 83a-84a.
Yount’s counsel elicited further testimony through cross-examination:
“Q. Did I understand Mr. Hrin you would require some — you would . . . require evidence or something before you could change your opinion you now have?
“A. Definitely. If the facts show a difference from what I had originally — had been led to believe, I would definitely change my mind.
“Q. But until you’re shown those facts, you would not change your mind — is that your position?
“A. Well — I have nothing else to go on.
“Q. I understand. Then the answer is yes — you would not change your mind until you were presented facts?
“A. Right, but I would enter it with an open mind.
“Q. In other words, you’re saying that while facts were presented you would keep an open mind and after that you would feel free to change your mind?
“A. Definitely.
“Q. But you would not change your mind until the facts were presented?
“A. Right.” Id., at 85a-86a.
Yount’s counsel subsequently challenged for cause; the court denied the challenge because Hrin “said he could go in with an open mind.” Id., at 86a.
First, even if we regard the relevant rulings as findings of fact, Hrin’s testimony clearly is sufficient to overcome the presumption of correctness due a state court’s factual findings under 28 U. S. C. § 2254 (d). The state court’s determination is not fairly supported by the record. Hrin not only *1050 indicated that he had a previous opinion as to Yount’s guilt or innocence, but also that he required evidence produced at trial to dispel that opinion. Further, he stated — pursuant to the prosecution’s questioning — that “[i]t would be rather difficult ... to answer” whether he could enter the jury box presuming Yount’s innocence. Under these circumstances, I am convinced that the trial court improperly empaneled Hrin.
More important, however, I believe the Court’s analysis regarding whether a juror has a disqualifying opinion is flawed. The Court begins by stating that such a question is one of historical fact, ante, at 1036. It then concludes, simply, that this factual finding is entitled to 28 U. S. C. § 2254 (d)’s presumption of correctness. Finally, it acknowledges that “[t]here are, of course, factual and legal questions to be considered in deciding whether a juror is qualified,” ante, at 1037, n. 12, and cites as one authority Reynolds v. United States, 98 U. S. 145 (1879). 6
*1051 Contrary to the Court, I believe that whether a juror has a disqualifying opinion is a mixed question of law and fact. The proper starting point of analysis is Reynolds v. United States, supra. In that case, the defendant excepted to the trial court’s decision to reject several challenges for cause that were based on juror testimony during voir dire. Id., at 146-147 . This Court upheld the trial court’s decision. Id., at 157 . Before reaching its ultimate conclusion, the Court stated:
“The theory of law is that a juror who has formed an opinion cannot be impartial. Every opinion which he may entertain need not necessarily have this effect. In these days of newspaper enterprise and universal education, every case of public interest is almost, as a matter of necessity, brought to the attention of all the intelligent people in the vicinity, and scarcely any one can be found among the best fitted for jurors who has not read or heard of it, and who has not some impression or some opinion in respect to its merits. It is clear, therefore, that upon the trial of the issue of fact raised by a challenge for such cause the court will practically be called upon to determine whether the nature and strength of the opinion formed are such as in law necessarily to raise the presumption of partiality. The question thus presented is one of mixed law and fact, and to be tried, as far as the facts are concerned, like any other issue of that *1052 character, upon the evidence. The finding of the trial court upon that issue ought not to be set aside by a reviewing court, unless the error is manifest.” Id., at 155-156 .
Irvin v. Dowd, 366 U. S. 717 (1961), extended Reynolds to habeas corpus proceedings. Initially, Irvin noted that a presumption of a prospective juror’s impartiality is not rebutted “if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.” 366 U. S., at 723 . Next, the Court affirmed that a proper inquiry may demonstrate "'whether the nature and strength of the opinion formed are such as in law necessarily . . . raise the presumption of partiality,’” ibid, (quoting Reynolds v. United States, supra, at 156 ), and that this inquiry is “ ‘one of mixed law and fact.’” 366 U. S., at 723 .
Thus, Reynolds and Irvin teach that the question whether a juror has an opinion that disqualifies is a mixed one of law and fact. Therefore, one cannot apply the presumption of correctness found in 28 U. S. C. § 2254 (d) because the statutory language by definition applies only to the factual determinations of state courts. Applying the proper analytical framework, I believe that Hrin’s testimony clearly raised a presumption of partiality. Therefore, the trial judge committed manifest error by improperly empaneling Hr in. 7
There is a special reason to require independent review in a case that arouses the passions of the local community in which an elected judge is required to preside. Unlike an appointed federal judge with life tenure, an elected judge has reason to be concerned about the community’s reaction to his *1053 disposition of highly publicized cases. Even in the federal judiciary, some Circuits have determined that it is sound practice to have the retrial of a case assigned to a different judge than the one whose erroneous ruling made another trial necessary; for though the risk that a judge will subconsciously strive to vindicate the result reached at the first trial may be remote, as long as human beings preside at trials, that possibility cannot be ignored entirely.
IV
Two additional and somewhat disturbing questions merit comment: (1) why did this Court exercise its discretionary jurisdiction to review this case; and (2) even if the Court of Appeals’ analysis of the case is entirely correct, why should those federal judges order the great writ of habeas corpus to issue for the benefit of a prisoner like Yount, who, it would seem, is guilty of a heinous offense?
The answer to the question why the Court grants certio-rari in any given case usually involves considerations of both fact and law. It appears that the facts motivated the Court to select this case for plenary review. The facts that had such a motivating impact on this Court — that the conviction of a confessed murderer of a high school student had been set aside by an appellate court — also, I believe, must have had an emotional and unforgettable impact on the residents of Clearfield County. The desire to “follow through” — to do something about such an apparent miscarriage of justice — is difficult for judges as well as laymen to resist. 8
It should not be forgotten that Yount has already been incarcerated for 18 years. If, as the Court of Appeals held, he *1054 has not yet been found guilty beyond a reasonable doubt in a fair trial, the possibility remains that he has already received a greater punishment than is warranted. Of much greater importance is our dedication to the principle that guilt or innocence of a criminal offense in our society is not to be decided by executive fiat or by popular vote. This is a principle that affords protection for every citizen in the United States. Justice Frankfurter stated this point in his concurrence in Irvin v. Dowd :
“More than one student of society has expressed the view that not the least significant test of the quality of a civilization is its treatment of those charged with crime, particularly with offenses which arouse the passions of a community. One of the rightful boasts of Western civilization is that the State has the burden of establishing guilt solely on the basis of evidence produced in court and under circumstances assuring an accused all the safeguards of a fair procedure. These rudimentary conditions for determining guilt are inevitably wanting if the jury which is to sit in judgment on a fellow human being comes to its task with its mind ineradicably poisoned against him.” 366 U. S., at 729 .
I would affirm the judgment of the Court of Appeals.
The “details” of the articles prompted two citizens to write letters to the Courier Express. One letter complained that the paper had “fanned the already poisoned atmosphere of malicious gossip” by putting a picture of the corpse on the front page and by the “repetitive use of gory details.” The author added that he thought he “was looking at the National Enquirer.” The second letter noted: “Emotional editorializing most certainly has it’s [sic] place in reporting, but I strenuously object to such when it appears in headline stories. . . . [Descriptive words that do much to sell newspapers and stir emotions discredit headline reporting and tend to prejudice the suspect regardless of degree of guilt.” Record, Ex. P-l-e.
As the Court of Appeals pointed out, another prospective juror testified that his opinion had been erased by the passage of time, but his daughter-in-law testified that he had left for jury duty voicing great animosity toward Yount. 710 F. 2d, at 964 ; App. 766a.
The Court of Appeals added:
“Petitioner peremptorily challenged six of those nine veniremen, one was seated as a juror, and the remaining two were seated as alternates after petitioner had exhausted his peremptory challenges.” 710 F. 2d, at 964, n. 13 .
At this point, the Court of Appeals added the following footnote:
“In addition, we note that twelve other veniremen stated that they had had an opinion at one time but claimed they would not carry it into the jury box. One of the twelve veniremen was dismissed for cause, six were peremptorily challenged by petitioner, and five were seated as jurors.” Id., at 964, n. 14 .
The person initially selected as juror number 3 was not able to sit because of personal reasons. Tr. 1060-1061.
The Court attempts to justify its treatment of Reynolds by quoting from a passage in that case that begins with: “[T]he manner of the juror while testifying is oftentimes more indicative of the real character of his opinion than his words.” Ante, at 1037, n. 12 (quoting 98 U. S., at 156-157 ). The excerpt from Reynolds quoted by the Court dealt with the question whether a juror’s testimony was truthful — specifically whether a prospective juror was falsely seeking to disqualify himself. In this case the question is whether Hrin’s testimony, including his acknowledged opinion about Yount’s guilt, raised a presumption of partiality. Whether the testimony of a witness is true or false is a question of fact; whether his statement raises a presumption of partiality is a mixed question of law and fact. The fully quoted relevant passage of Reynolds demonstrates the former point:
“The reading of the evidence leaves the impression that the juror had some hypothetical opinion about the case, but it falls far short of raising a manifest presumption of partiality. In considering such questions in a reviewing court, we ought not to be unmindful of the fact we have so often observed in our experience, that jurors not unfrequently seek to excuse themselves on the ground of having formed an opinion, when on examination, it turns out that no real disqualification exists. In such cases the manner of the juror while testifying is oftentimes more indicative of the *1051 real character of his opinion than his words. That is seen below, but cannot always be spread upon the record. Care should, therefore, be taken in the reviewing court not to reverse the ruling below upon such a question of fact except in a clear case.” Id., at 156-157 (emphasis added).
The Court also cites as authority Rushen v. Spain, 464 U. S. 114 (1983) (per curiam), and Marshall v. Lonberger, 459 U. S. 422 (1983). Neither of those cases was correctly decided. Moreover, the latter case is plainly inapplicable because it involved the voluntariness of guilty pleas, not juror partiality. The former involved an allegation of juror partiality that arose after the trial began.
The Court states that it “doles] not think [Irvin’s] analysis can be extended to a federal habeas corpus case in which the partiality of an individual juror is placed in issue.” Ante, at 1036. The validity of Irvin (habeas corpus case) and of Reynolds (individual jurors), and the inapplicability of 28 U. S. C. § 2254 (d), dispose of any meaningful reason not to “extend” these cases to federal habeas corpus cases in which the partiality of individual jurors is placed in issue.
As I recently noted, in 19 consecutive cases in which the Court exercised its discretion to decide a criminal case summarily, the Court made sure that an apparently guilty defendant was not given too much protection by the law. See Florida v. Meyers, 466 U. S. 380, 385-387 , and n. 3 (1984). The string of consecutive summary victories for the prosecution now stands at 20. See Massachusetts v. Upton, 466 U. S. 727 (1984) (per curiam).