# Willis Smith v. United States > Court of Appeals for the Fifth Circuit · June 15, 1959 · 265 F.2d 14 URL: https://www.frixlaw.com/law-library/cases/9446697 ## Case - **Full name:** Willis SMITH, Appellant, v. UNITED STATES of America, Appellee - **Court:** Court of Appeals for the Fifth Circuit - **Decided:** June 15, 1959 - **Citations:** 265 F.2d 14 - **Precedential status:** Published - **Opinion:** Dissent by Rives - **Judges:** Rives, Tuttle, Simpson - **Cited by:** 17 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9446697 ## Opinion text RIVES, Circuit Judge (dissenting). This appellant is serving a five-year penitentiary sentence imposed as the result of a jury verdict. Five members of the jury have sworn that they heard the trial judge reply to the motion of appellant’s counsel for a list of the Government’s witnesses, that, if furnished, “some of them would probably disappear during the trial. * * * That (ways of punishing) doesn’t bring back a fellow that might disappear some night. There are plenty of people in this court that would be glad to interfere with witnesses.” The record shows that the judge made those statements. There has been no hearing to ascertain whether all or others of the jurors also heard them, but from the size of the courtroom, approximately 20 feet by 47 feet, the inference is clear that they did. In any event, if five jurors or a single juror was prejudiced by the statements, a new trial is called for. In the small courtroom there must have been few, if any, besides the appellant and his friends and witnesses who would, according to the judge’s statement, be glad to interfere with the Government witnesses or to cause their disappearance overnight. The majority says, “there is still no assertion that any juror realized that the court’s statement in any way related to the case they were later to try,” probably implying that the jurors’ affidavits do not affirmatively show that they were prejudiced by the judge’s statements. Again, there has been no hearing to develop the facts. The record of the original trial, however, shows that, just before the prejudicial statements were made, the court had called for trial the case of “United States vs. Willis Smith,” and that the statements themselves were specifically directed to this appellant’s case; for example, “Some of them (Government witnesses) would probably disappear during the trial. * * * Here we have a narcotic case. * * * There are plenty of people in this court that would be glad to interfere seriously with witnesses.” (Emphasis supplied.) One indulges not merely in wishful thinking but in utter futility, when he imagines that the jurors did not understand that the judge was referring to appellant’s case. If there had ever been any validity to the notion that jurors hear only what is intended for their ears, it was dissipated in this in *19 stance by the affidavits of the five jurors that more than a year after the trial they still remembered the statements. Moreover, the proceedings at that point must have attracted the interest of everyone for the exchange had become spirited, and was almost immediately followed by a threat to punish Mr. O’Quin, appellant's attorney, for contempt. Unless the affidavits of the five jurors and of the appellant and his wife are contradicted, I would think that a hearing is not necessary to prove prejudice on the part of the jurors. Jurors, like judges, should be free both from actual prejudice and from reasonable suspicion of prejudice. A hearing would likely be as unsatisfactory as was the examination of the jurors on voir dire. A juror is not usually so expert in psychology as to appreciate the effect which the judge’s statements might have upon him. It is a common human trait for a man to fail to recognize his own prejudices, and practically every one of us considers himself, of all people, to be free from prejudice. A juror cannot be expected now, any more than upon voir dire, to admit that statements which the trial judge thought, albeit mistakenly, were fit to make in his presence had the effect of poisoning his mind. 1 Nevertheless, we hold the appellant’s liberty cheap indeed when we underestimate the prejudicial effect on prospective jurors of such statements by a highly respected trial judge. If there be any doubt, at least the appellant should be afforded the opportunity of a hearing. The majority says that the objection to the jury has been waived because not made forthwith before entering upon the trial. Without question that would have been the better practice. The record reveals, however, that within minutes after the prejudicial statements had been made by the trial judge, Mr. O’Quin, the attorney whom the appellant had employed, ceased to take any part in the trial. The only evidence in this record as to the circumstances under which Mr. O’Quin left the case is contained in the uncontested affidavits of the appellant and his wife to the following effect: “Many prospective jurors were seated in and about the Courtroom and the jury box held twelve (12) prospective jurors. Upon the call by the Court of my case, Mr. O’Quin made a motion for a continuance of this case on the ground that he was not prepared to go to trial for several reasons, one of the reasons being that he had been denied a list of the witnesses intended to be used by the Government at this trial. Mr. O’Quin engaged in a heated argument with the Court, all of which took place before the prospective jurors in the jury box and could be clearly heard throughout the small Courtroom. The discussion became so heated that the Judge made a comment to Mr. O’Quin concerning, and having to do with, possible contempt of Court by Mr. O’Quin and very shortly the Judge declared a recess of the proceedings and left the Courtroom. “After the recess had concluded and the Judge returned to the Courtroom, Mr. O’Quin, the attorney retained by my wife to represent me, did not return, and in his stead *20 * * * the young man whom I had seen earlier, undertook to represent me.” In my opinion, those circumstances do not show any considered and intelligent waiver of the valid objections to this jury panel. Further, in my opinion, the judge’s prejudicial statements in the presence of the jurors constituted such a plain error or defect affecting substantial rights that they should be “noticed although they were not brought to the attention of the court.” Rule 52(b), Federal Rules of Criminal Procedure. Indeed, the judge himself made the prejudicial statements when he could see that the jurors were present. Without objection or further ado, it then became his positive duty to see that the appellant was not tried before jurors who had overheard those statements. The Fifth Amendment protects the appellant against a deprivation of his liberty without due process of law. The Sixth Amendment guarantees his right to trial “by an impartial jury.” 2 Those constitutional rights have been purchased with too dear a price for them to be sacrificed upon such a record as this. The majority says that the appellant lost his rights because his counsel failed to secure the affidavits of the jurors in time to support his motion for new trial. It seems to me that appellant’s counsel had no reason to anticipate that the affidavits were needed in a hearing before a trial judge who knew the facts as well as, if not better than, anyone else. Indeed, since the facts have been disclosed by the affidavits of the jurors, and because the trial judge is himself a witness, I think that, in the event of a hearing, this trial judge should hold himself disqualified. See In re Murchison, 1955, 349 U.S. 133, 138, 139 , 75 S.Ct. 623 , 99 L.Ed. 942 ; United States v. Halley, 2d Cir. 1957, 240 F.2d 418, 419 . As already stated, however, I do not think a hearing is necessary to prove that the appellant should not be deprived of his liberty upon the verdict of jurors who heard the trial judge state that if the defendant were furnished with a list of the Government witnesses, “Some of them would probably disappear during the trial. * * * Here we have a narcotic case. * * * (Punishment) doesn’t bring back a fellow that might disappear some night. There are plenty of people in this court that would be glad to interfere seriously with witnesses.” This record, I think, establishes that appellant has not had a fair trial “by an impartial jury,” and that he is being deprived of .his liberty without due process of law. I therefore respectfully dissent. . I subscribe to the views expressed fairly recently by two of the Justices who, despite their frequent differences, think alike on this score: Mr. Justice Black: “The test of bias sufficient to exclude a juror for cause is not what the particular juror believes he could do. Long ago Chief Justice Marshall ruled that a person ‘may declare that he feels no prejudice in the case, and yet the law cautiously incapacitates him from serving on the jury because it suspects prejudice, because in general, persons in a similar situation would feel prejudice.’ 1 Burr’s Trial 414 , 415 [United States v. Burr,] 25 Fed.Cas. 14,692g, [49] at page 50.” Dennis v. United States, 1950, 339 U.S. 162, 176 , 70 S.Ct. 519, 527 , 94 L.Ed. 734 . Mr. Justice Frankfurter: “Questions ought not to be put to prospective jurors that offer no fair choice for answer.” Dennis v. United States, supra, 339 U.S. at page 182 , 70 S.Ct. at page 526 . . “The Sixth Amendment requires that ‘in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.’ The Amendment prescribes no specific tests. The bias of a prospective juror may be actual or implied; that is, it may be bias in fact or bias conclusively presumed as matter of law. There is no ground for a contention — and we do not find that such a contention is made— that Congress has undertaken to preclude the ascertainment of actual bias. All persons otherwise qualified for jury service are subject to examination as to actual bias. All the resources of appropriate judicial inquiry remain available in this instance as in others to ascertain whether a prospective juror, although not exempted from service, has any bias in fact which would prevent his serving as an impartial juror.” United States v. Wood, 1936, 299 U.S. 123, 133, 134 , 57 S.Ct. 177, 179 , 81 L.Ed. 78 . “Impartiality is not a technical conception. It is a state of mind. For the ascertainment of this mental attitude of appropriate indifference, the Constitution lays down no particular tests and procedure is not chained to any ancient and artificial formula.” United States v. Wood, supra, 299 U.S. at page 145, 146 , 57 S.Ct. at page 185 . See also, Dennis v. United States, 1950, 339 U.S. 162, 172 , 70 S.Ct. 519 , 94 L.Ed. 734 . --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9446697. Public record. Not legal advice.