United States v. Leonard Ray Blanton (81-5644), Clyde Edward Hood, Jr. (81-5645), James M. Allen (81-5643)

ENGEL, Circuit Judge,

dissenting.

The en banc opinion today establishes a new rule of law governing jury selection in federal trials involving widespread pretrial publicity.

That new rule is that where inflammatory pretrial publicity is pervasive, inquiry into an individual juror’s knowledge and predisposition is superfluous. The only necessary inquiry, according to the majority, is whether the juror believes in his own mind that he can lay aside such knowledge and preconceived notions and decide the case only upon the evidence presented. The en banc opinion further imposes upon the defense the burden of proving prejudice although the trial court effectively precluded any meaningful inquiry needed to establish it. These propositions overrule established precedent. I therefore respectfully dissent.

I remain completely satisfied with the careful analysis and scholarship of Judge Gibson in the original panel decision, United States v. Blanton, 700 F.2d 298 (6th Cir. 1983). 1 That opinion fully discusses the law and policies concerning the adequacy of voir dire in cases of widespread pretrial publicity. These additional comments supplement Judge Gibson’s fine opinion, addressing additional concerns and, occasionally, misconceptions which I believe have developed during the course of the en banc proceedings.

*834 I.

The en banc opinion is unprecedented in the scope of the limitations it permits upon jury voir dire in trials involving widespread, inflammatory publicity. Not one question was permitted to be put to the prospective jurors, either individually or as a group, concerning the sources of publicity they had been exposed to or the content of such sources they might have remembered.

Judge Gibson’s opinion makes clear that although habeas corpus review of jury selection is judged solely on a constitutional standard, see United States ex rel. Darcy v. Handy, 351 U.S. 454, 462 , 76 S.Ct. 965, 970 , 100 L.Ed. 1331 (1956) (defendant must show bias not as a matter of speculation, but as a demonstrable reality), review of federal prosecutions also rests on the reviewing court’s supervisory power. See Marshall v. United States, 360 U.S. 310 , 79 S.Ct. 1171 , 3 L.Ed.2d 1250 (1959) (per curiam); Murphy v. Florida, 421 U.S. 794 , 95 S.Ct. 2031 , 44 L.Ed.2d 589 (1975). Thus, in federal cases involving “pervasive” pretrial publicity, prejudice is presumed. Murphy, 421 U.S. at 798-99 , 95 S.Ct. at 2035 ; see also, Irvin v. Dowd, 366 U.S. 717, 723 , 81 S.Ct. 1639, 1642 , 6 L.Ed.2d 751 (1961); Goins v. McKeen, 605 F.2d 947 , 951 nn. 7 & 8 (6th Cir.1979). Once prejudice is so established, it is the trial judge’s duty to assess each potential juror’s impartiality — i.e., his ability to lay aside his impression or opinion and render a verdict based on the evidence. Reynolds v. United States, 98 U.S. 145, 155 , 25 L.Ed. 244 (1878). Finally, it is “the duty of the Court of Appeals to independently evaluate the voir dire testimony of the impaneled jurors.” Irvin, 366 U.S. at 723 , 81 S.Ct. at 1642 (emphasis added).

The heart of the issue in this appeal is how much information the voir dire must elicit concerning the source and content of a venireman’s knowledge of the case in order that the trial court and, on review, the court of appeals may assess jury impartiality effectively. Judge Gibson’s opinion relies on the established principle that “[t]he juror’s assurances that he is equal to this task [of laying aside preconceptions] cannot be dispositive of the accused’s rights .... ” Murphy v. Florida, 421 U.S. 794, 800 , 95 S.Ct. 2031, 2036 , 44 L.Ed.2d 589 (1975). That same principle has guided our circuit in United States v. Giacalone, 588 F.2d 1158, 1163 (6th Cir.1978), cert. denied, 441 U.S. 944 , 99 S.Ct. 2162 , 60 L.Ed.2d 1045 (1979), and Goins v. McKeen, 605 F.2d 947, 952-53 (6th Cir.1979).

To my knowledge, no court of appeals has ever before affirmed a conviction in a case of widespread and inflammatory pretrial publicity when the entire voir dire concerning publicity consisted of a single question eliciting only a juror assurance (through silence) of impartiality:

[T]he test is, will you be able to put from your minds whatever you may have seen and heard, and any opinion which you may have tentatively reached, and then to decide this case solely on the facts as you determine them to be, on the sole basis of the evidence which will be adduced in this trial after application of the appropriate law?

App. 1487.

As both the en banc opinion and Judge ■Gibson’s panel opinion make clear, the above question was preceded by frequent admonitions specifically cautioning the jurors to refrain from disclosing any further information bearing on possible bias, either as to source or as to content:

And I urge you to be extremely careful in answering any question that may be put to you. Answer only the precise question asked. Do not volunteer anything beyond the scope of the question itself. And again, I ask that you listen carefully to the question and then limit your answer precisely to answering the question, without volunteering any additional information or any additional opinion, anything of that nature.

(emphasis added). App. 1468-69. Similar precautions were repeated throughout the entire voir dire. See, e.g., 1479-80, 1506-07. In addition the trial judge on several occasions chided (albeit gently) jurors whose answers or comments threatened to *835 disclose any specific knowledge or opinion. See, e.g., App. 1550, 1578, 1579.

It is singularly curious that the reason the trial judge apparently felt that more specific questioning was unnecessary was that he assumed that the entire venire had been exposed to the pretrial publicity which even the en banc majority admits was “massive.” En banc Op. at 818, ante, quoting 700 F.2d at 302 . From this undeniable fact, the trial judge and the en banc majority were led to the totally erroneous conclusion that it was therefore unnecessary to inquire into the particular knowledge of any individual juror or the source from which that knowledge was derived. This conclusion directly conflicts with our circuit’s holding in Goins v. McKeen, 605 F.2d at 952-53 .

In Goins v. McKeen, our court indicated that juror exposure to inflammatory publicity — such as that so plainly spread upon this record — “render[s] the circumstances inherently prejudicial and ... a violation of petitioner’s constitutional right to trial by an impartial jury may be presumed.” Id. at 954 . In contrast, the trial court here assumed that assurances gained from silence were sufficient to overcome that presumption. The en banc opinion thrusts the burden upon the defense to prove prejudice even though it has been presumptively established under the law. Compare En banc Op. at 832, ante, with e.g., Murphy, 421 U.S. at 798-99 , 95 S.Ct. at 2035 .

II.

The en banc decision is completely inconsistent with Judge Celebrezze’s opinion in United States v. Johnson, 584 F.2d 148 (6th Cir.1978), cert. denied, 440 U.S. 918 , 99 S.Ct. 1239 , 59 L.Ed.2d 469 (1979). In Johnson , we set out the proper voir dire procedure concerning pretrial publicity. Although trial judges have broad discretion in conducting voir dire, we recognized that “this discretion is limited by the ‘essential demands of fairness.’ ” Johnson, 584 F.2d at 155 , citing, Aldridge v. United States, 283 U.S. 308, 310 , 51 S.Ct. 470, 471 , 75 L.Ed. 1054 (1931). Fairness requires that the veniremen not only be questioned about their ability to disregard pretrial publicity but also that they be questioned concerning “the sources and intensity of [their] exposure” to the pretrial publicity. Johnson, 584 F.2d at 155 .

In Johnson , our court also addressed the circumstances in which the use of “content” questions is appropriate. “Content” questions request the prospective juror to “recite everything he remembers about the topic of inquiry.” Id. at 156 n. 17. In the context of pretrial publicity, a “content” question would be asked to determine what a prospective juror remembered about a specific article. Although “the better practice is for the court to ask content questions of any juror who has been exposed to pretrial publicity which the court knows to be of clear prejudicial potential,” id. at 156 n. 19, we need not consider the issue of content questioning since defendants were never given an opportunity to discover the sources of what the prospective jurors had read or seen. The trial judge thus violated the fundamental rule that veniremen must be questioned concerning “the sources and intensity of [their] exposure” to pretrial publicity. Id. at 155 . “Content” questions need be asked only where “the nature of juror exposure to ... prejudicial material is not apparent from responses to ... more general [e.g., source] questions,” id. at 156 , but questions concerning the sources of exposure are never dispensable.

As the en banc opinion acknowledges, the pretrial publicity was massive. It would in fact be difficult to find a criminal case in which the extent of publicity was so carefully chronicled and the objections to an abbreviated voir dire so clearly and fully preserved. The Appendix includes 610 pages of detailed newspaper accounts of the events leading to the trial of these defendants. The en banc opinion is simply not faithful to the record in suggesting that some articles containing favorable material somehow neutralized the adverse publicity. It was devastating. The publicity concerning Governor Blanton and the other defendants in this appeal was not confined to the matters involved in the trial. The articles *836 covered not only the entire range of the defendants’ alleged activity but also implicated the defendants in the alleged criminal activities of other well-known citizens of Tennessee, including other members of Blanton’s family. An objective examination of the compiled record of newspaper publicity reveals that it was overwhelmingly accusatory. For example, an article in the Nashville Tennessean appearing April 7, 1981 (two weeks before the jury selection commenced) was entitled: “JAKE BLANTON ADMITS TAKING BID-RIG PAYOFF.” App. 264. The opening paragraphs of the article state:

James C. (Jake) Blanton admitted in federal court yesterday he told a meeting of bid riggers here in 1978 he wanted a $41,000 payoff to buy his girlfriend a house.

Blanton, 59, of Tupelo, Miss., also implicated his nephew, Gene Blanton, former Gov. Ray Blanton’s brother, in several schemes to rig state highway paving contracts, as Gene looked on impassively.

App. 264. The record reveals in-depth media exploration of charges that Governor Blanton and others were involved in selling pardons during the closing days of his administration. On April 15, 1981, less than one week before the jury selection began, the Tennessean in an article headlined “TAYLOR ON TAPE LINKS RAY BLANTON TO CLEMENCY DEALS” described the testimony of Arthur Wayne Baldwin 2 concerning Governor Blanton’s involvement in a “clemency-peddling scheme” to sell clemency and commutations to hardened state criminals at amounts said to range from $3,000 to $100,000. App. 427. A follow-up article the next day linked Blanton to 30 commutations, App. 425, while elsewhere in the same edition of the Tennessean another article highlighted the ongoing trial of Gene Blanton in Memphis for tax fraud. App. 426. A review of earlier articles included in the record reveals the derogatory nature of the clemency-sale stories, particularly those pertaining to the proposed pardon of an allegedly psychotic double murderer. See, e.g., App. 290-92, 293-94, 299, 302-03. The allegations of “influence-peddling,” mail fraud, the extortion involving Governor Blanton and co-defendants Hood and Allen, which formed the basis of the instant litigation, are exhaustively chronicled in articles from the Nashville Tennessean and Nashville Banner as well as other publications.

As an examination of the massive record reveals, a reader of the Tennessean or the Banner was faced with a highly complex and inflammatory story of allegedly illicit, unethical and criminal activities which either directly involved the defendants or linked them by name and association to others who were responsible. All of this was bound to lead to a substantial probability that prospective jurors, particularly those who read the two Nashville daily newspapers, would be exposed to news of many crimes and activities beyond those directly involved in the trial. A very real possibility existed that jurors would confuse the activities of Governor Ray Blanton with others in Blanton’s family who were also being charged or implicated in a wide variety of illicit conduct.

It was the absence of such a record in United States v. Johnson, supra, which led Judge Celebrezze to uphold the relatively limited voir dire there:

In this case, the requests by defense counsel at trial for further questioning of veniremen related to pretrial publicity generally and not to whether jurors recalled any specific matters. The record of the voir dire contains neither newspaper articles nor any description of other publicity relating to the case. In the absence of a clear foundation for inquiring into juror recollection of particular prejudicial matter, the trial judge was justified in refusing to ask content questions. See [U.S. v.] Robinson, supra, 154 U.S.App.D.C. at 270, 475 F.2d [376] at *837 381. Cf. Ham v. South Carolina, 409 U.S. 524 , 528 n. 4, 93 S.Ct. 848 [851 n. 4], 35 L.Ed.2d 46 (1974); United States v. Giacalone, 574 F.2d 328, 334-35 (6th Cir. 1978).

Id. 584 F.2d at 156 . Even in Johnson , however, inquiry was permitted to determine whether jurors had actually read certain particularly inflammatory articles. The reviewing court therefore observed that “knowledge of juror exposure to them would provide defense counsel with sufficient information to intelligently exercise peremptory challenges, without additional questioning as to what jurors remembered about the reports.” Id. at 156 .

III.

The jury voir dire in this case was altogether inadequate to uncover possible bias in the jurors. The precautions taken by the trial judge were simply not responsive to the dangers posed by the selection technique employed. As noted in section I, supra, the technique of voir dire examination actually encouraged nondisclosure of juror bias and was inherently intimidating, although clearly not intended to be.

It does not take extensive acquaintance with jury trials to reach the conclusion that most jurors perceive themselves as fair-minded, objective individuals. Indeed, most are. It is also a fair observation that many, if not most jurors prefer to remain as inconspicuous as possible during voir dire. This is only natural. Jurors find themselves in a strange environment. Even the best efforts of trial judges and attorneys cannot quite dispel the courtroom atmosphere of forbidding formality which naturally inhibits volunteered speech. The voir dire here presents a classic case of such reticence on the part of jurors during questioning concerning their personal acquaintance with parties and anticipated witnesses. On a number of occasions there was no response when questions concerning familiarity with witnesses were put to the venire en masse and yet when an attorney had knowledge that a particular juror was familiar with a given witness that juror readily admitted such knowledge. Although some jurors did not respond sooner because the juror did not connect the name given with the person he or she knew, or didn’t hear the question when it was originally asked, the failure to respond more often reflected the completely natural reticence of a juror to say anything at all unless directly questioned. Volunteering answers to questions put only generally to the venire en masse comes hard for most jurors.

The majority opinion stresses that the trial judge was particularly generous in allowing additional peremptory challenges. This was indeed a salutary precaution given the nature of the case. However, I respectfully submit that the problem was not so much the number of peremptory challenges allowed (and they were not all used) as it was the absence of any meaningful information which might have enabled the defense counsel to exercise those challenges intelligently.

Likewise the extensive questioning of jurors concerning their acquaintance with parties, or witnesses, or law enforcement personnel, or persons in state government fell far short of curing the need for the most important information of all: what did a juror know about the case coming before him? What accurate or inaccurate preconceived notions did he have concerning it? The en banc opinion appears to conclude that if one but asks enough other questions, the inherent risk in not asking the most relevant questions is somehow dissipated. One need only ask why it seemed important to the trial judge that no juror disclose any specific knowledge or preconceived opinion to understand the prejudice of this method. Why should a juror not volunteer information? Obviously the court feared that in so disclosing, the rest of the venire might somehow be contaminated. I respectfully suggest that if that fear was justified, the answer was not to suppress the information altogether. If the dreaded answer would contaminate the entire venire, why would it not also contaminate the juror who entertained such notions irrespective of whether he or she subjectively believed it would?

*838 IV.

The trial judge’s refusal to allow the defense to discover what the veniremen had read or heard concerning Blanton not only adversely prejudiced the ability of the court and counsel to weigh challenges for cause, it also had a profoundly debilitating effect upon the intelligent use of peremptory challenges. Even counsel for the government joined the defense in requesting a more explicit voir dire on publicity. See section V, infra, quoting App. 1531-32.

The en banc decision seeks to excuse the trial judge’s error by noting that defendants had access to information supplied by each venireman on an official questionnaire, that defendants were given thirty peremptory challenges, and that guilty verdicts must be unanimous.

A glance at the “official questionnaire” reveals that it could provide no information regarding exposure to pretrial publicity other than whether the juror could read, write, and understand English. 3

As is earlier observed, unlimited peremptory challenges could have been granted, but with no factual basis on which to exercise them intelligently, this additional protection would be futile.

The en banc opinion also indicates that the requirement of a unanimous jury verdict' is an antidote for inadequate voir dire. However, no single requirement for a fair trial can relieve the court of the responsibility to observe all of the procedures which the cumulative wisdom of the years has found so necessary to a fair trial. The effective use of peremptory challenges has always been considered an essential, independent requirement in Anglo-Saxon jurisprudence.

Peremptory challenges were solidly established in early English law. Blackstone hailed the peremptory challenge as “a provision full of that tenderness and humanity to prisoners, for which our English laws are justly famous.” 4 Blackstone’s Commentaries 352 (1822). In Swain v. Alabama, 380 U.S. 202, 219 , 85 S.Ct. 824, 835 , 13 L.Ed.2d 759 (1965), 4 the Supreme Court noted that “the persistence of peremptories and their extensive use demonstrate the long and widely held belief that peremptory challenge is a necessary part of trial by jury.” Although the Constitution does not require Congress to grant peremptory challenges, the Supreme Court has recognized that the challenge is “ ‘one of the most important of the rights secured to the accused.’ ” Swain, 380 U.S. at 219 , 85 S.Ct. at 835 , citing, Pointer v. United States, 151 U.S. 396, 408 , 14 S.Ct. 410, 414 , 38 L.Ed. 208 (1894). “[T]he denial or impairment of the right is reversible error without a showing of prejudice.” Swain, 380 U.S. at 219 , 85 S.Ct. at 835 (citations omitted); see also United States v. Johnson, 584 F.2d at 155 .

In Johnson , Judge Celebrezze observed that “[w]here veniremen have been exposed to prejudicial publicity, the nature and degree of that exposure is certainly a matter of legitimate concern to a defense attorney ... deciding on peremptory challenges.” 584 F.2d at 155 . Here, the trial judge completely frustrated the right to exercise peremptory challenges by preventing the defense from acquiring the information it needed to effectively utilize its peremptories. Under Swain and Johnson , the trial court committed reversible error.

There remains another serious prejudice not addressed by the en banc opinion. Both Governor Blanton and defendant Allen timely moved the court for a change of *839 venue. The trial judge sensibly deferred ruling upon this motion until he was able to determine whether an impartial jury could be selected in Nashville. Once the jury was picked, the trial judge denied the motion to change venue, ostensibly because experience had shown that impartial jurors could be found in Nashville. The only difficulty in this procedure was that the method of voir dire effectively precluded both counsel and the trial judge from determining whether the jurors were in fact unbiased. The method also effectively deprived our court of any record by which that decision could be reviewed.

V.

The en banc opinion and Judge Kennedy’s concurrence seem to infer that the defendants’ difficulties in obtaining adequate voir dire were of their own making. I respectfully disagree.

The defendants made known their objections to the proposed manner of voir dire early and often. Extensive written requests for voir dire relating to pretrial publicity were submitted by Blanton, Hood, and Allen. Relevant excerpts from those requests are appended hereto as Attachments A, B & C. The observation in the concurrence that the defendants did not ask for individualized voir dire before impanelling the first group of jurors, is in my opinion, inaccurate.

Voir dire commenced on April 20, 1981. On April 14, 1981, Blanton filed a “motion for Right of Counsel to Participate in Voir Dire Examination.” That motion requested “that counsel be permitted to participate in the voir dire examination outside the presence of other jurors.” App. 235 (emphasis added). On April 20, 1981, Hood also “move[d] the court to voir dire each prospective juror individually.” App. 615. Allen moved for individualized voir dire of those jurors who stated an opinion. 5

The en banc opinion and the concurrence do not consider that a broader question than individualized voir dire is at issue here. Counsel strenuously objected to the fact that no questions about media exposure were asked of the venire, before the first group of jurors was chosen. Counsel stated:

MR. WILLIS: Secondly, let me raise this question with the Court. And I think, for the record, I should move the Court orally at this time to ask the Defendant Hood’s questions number 39 through 58 previously submitted to the Court, all of which deal with pretrial publicity, on the theory that the information that has been developed from the Jury at this point is inadequate to permit us to intelligently exercise a peremptory challenge.

MR. MCLELLAN, JR.: We would ask, Your Honor, that you ask the Jury— which you have done in general terms— but specifically, if their judgment has been affected by reading articles with the name Blanton in it, members of his family-

App. 1531. Even counsel for the Government requested a more comprehensive voir dire on the subject of publicity:

MS. ARTHUR: I was just going to say that we would join in Mr. Willis’ motion as far as additional voir dire on publicity. Your Honor may or may not know about the publicity that took place at the very end of Mr. Blanton’s term in office. And I think Mr. Willis pointed that out. We are not just talking about pretrial publicity involving the case. The Government would urge Your Honor to do some more voir dire on publicity.

App. 1531-32. Counsel continued to object to the procedure after the first group of jurors was chosen, stating:

MR. WILLIS: Your Honor, I don’t want to wear my welcome out with Your Honor. But I feel compelled once again to raise the question of a more specific in-depth inquiry into what these jurors *840 have seen and read and heard. And in that context, I cite Your Honor the decision of the Sixth Circuit in the United States versus Dellinger, 472 Fed.2d 340, which Your Honor is probably already well familiar with. We believe that we need to have more of an inquiry than what reveals the basis for a challenge of cause. We believe that we need to have a sufficient in-depth inquiry so that we may intelligently exercise our peremptory challenges.

App. 1574. See also App. 1565. Defendants by no means waived their rights to challenge the adequacy of the voir dire.

VI.

In stating that the Supreme Court has not established a per se rule regarding jury voir dire, the en banc opinion implies that the original panel has done so. I respectfully suggest that a careful reader of Judge Gibson’s opinion will search in vain for any expression of a per se rule. In fact, Judge Gibson emphasized the trial judge’s broad discretion. See 700 F.2d at 303, 309 .

The panel opinion contains no invariable mandate to compel either private or individualized interrogation of jurors or to adopt the “ABA standards,” however salutary they may be. 6 Neither does the panel opinion compel the trial judge to yield the voir dire, or any part of it, to the trial attorneys.

There are probably as many ways of handling voir dire as there are judges and trial attorneys. The original panel did not attempt to legislate any one rule and I, for one, would not attempt to, given the chance. Local practices vary with local history and mores. Beyond that, individual circumstances vary with the particular judge and attorneys involved. It is true, on one hand, that trial counsel may be best able to probe and uncover hidden motives which may affect the objectivity of a juror. On the other hand, there always remains the very real risk that the conduct of voir dire by counsel, especially in a highly publicized trial, may lead more to harassment than to enlightenment. Most observers would, I believe, admit that in such a trial the judge must exercise particularly close control to avoid potential abuse. The panel opinion never sought to spell out exactly how the trial judge must exercise that control, however:

[W]e agree with the implication in Johnson that the voir dire should provide some surface information so the parties can use their peremptory challenges in an intelligent or purposeful manner.

In the instant case, where there was substantial, even massive pretrial publicity, the voir dire should have been extensive enough to allow defendants to learn which veniremen were most exposed to publicity, from what sources that exposure came, and who held opinions. That information would have helped defendants detect suspected biases and use their peremptory challenges accordingly, helping to insure an impartial jury. The defendants had no information which would cause them to suspect biases which either were not strong enough for disqualification for cause or were not evident enough for the court to believe disqualification was in order. The lack of such information was an impairment of the peremptory challenge right, and would of itself require reversal.

*841 We are not unmindful of the trial court’s finding that the “jury selected is as fair and impartial a jury as could be obtained” and that a trial judge must be accorded considerable latitude and allowed a range of flexibility in impaneling a petit jury. Also we note that an appellate court will not interfere with the jury selection process absent an abuse of discretion. [U.S. v.] Blount, 479 F.2d [650] at 651; United States v. Owens, 415 F.2d 1308, 1315 (6th Cir.1969), cert. denied, 397 U.S. 997 , 90 S.Ct. 1138 , 25 L.Ed.2d 406 (1970); Silverthorne [v. U.S.], 400 F.2d [627] at 638. Although the trial court’s finding might be correct, there is no way on this record to probe that finding since the record is silent on the extent of the veniremen’s exposure to the pretrial publicity and the depth and extent of their personal reactions to the massive publicity. We conclude as a matter of fairness that the court should have probed into the effect of the publicity upon the prospective jurors, both for challenges for cause and for the exercise of peremptory challenges.

700 F.2d at 309-10 . In sum, Judge Gibson’s opinion left available to the trial court on remand the widest possible range of choices consistent with its responsibility to insure the defendants a fair and impartial jury.

The en banc opinion rightly observes that it is a “major problem” to choose a jury without exposing or reexposing potential jurors to prejudicial information. The opinion indicates, however, that the solution to the problem is “deliberately to avoid” such exposure. En banc opinion at 820-821, ante. As a practical matter, the opinion implies that the only solution is to avoid the issue altogether, perhaps in hope that the problem will go away. Alternatively, it assumes that a trial judge is powerless to protect the defendant from prejudicial publicity where the judge “comes on the scene after the media exposure.” Id. (emphasis in original).

There are alternatives to the excessive and unnecessary limitations imposed upon the voir dire below. Trial judges in their discretion have used several voir dire methods' to protect the rights of highly publicized defendants such as Governor Blanton. The most obvious method is individualized voir dire outside the presence of other jurors, as advised by section 3.5 the ABA Standards. See note 6, supra. This method was used in the trial of Watergate defendants H.R. Haldeman, John Erlichman and John Mitchell. United States v. Haldeman, 559 F.2d 31 (D.C.Cir.1976), cert. denied, 431 U.S. 933 , 97 S.Ct. 2641 , 53 L.Ed.2d 250 (1977). Following general questioning of the veniremen in groups, the trial judge there questioned each juror individually.

Before the publicity was mentioned the venireman was asked if he believed that any defendant was probably guilty. He was then asked if he had heard of the case and, if so, whether anything he had heard or read about the case stood out in his mind. The next questions asked whether the venireman had seen the defendants or their lawyers in the newspapers or on television and whether he remembered anything in particular about them. Subsequently the court determined which newspapers and magazines the venireman read and with what degree of regularity; which television news programs he watched; whether he had followed the legislative inquiries related to Watergate or read any of the books or other lengthy pieces concerning Watergate, including the presidential tape transcripts; whether he had followed Watergate closely or casually; and whether (and how recently) he had discussed the case.

After determining the venireman’s degree of interest in and exposure to the case, the court inquired whether he had formed or expressed an opinion of the guilt or innocence of any defendant.

559 F.2d at 65-66 .

The trial judge used a similar method in the trial of Lieutenant William Calley on murder charges following the “My Lai massacre.” The Fifth Circuit described the questioning:

*842 The second reason to credit the court members’ statements is that they were the product of searching and sensitivity conducted voir dire. The military judge conducted the voir dire in accordance with the recommendations of the American Bar Association Project on Standards for Criminal Justice, Standards Relating to Fair Trial and Free Press 3.4(a) (Approved Draft, 1968). The examination of each court member was held out of the presence of other prospective jurors. Judge Kennedy, the military judge, himself inquired into the prospective court members’ exposure to publicity and ability to render a fair and impartial verdict. But more importantly, both defense counsel and the prosecution were allowed almost unlimited freedom to inquire into the court members’ attitudes, perceptions, backgrounds and the nature and extent of their exposure to pretrial publicity.

Calley v. Callaway, 519 F.2d 184, 208-09 (5th Cir.1975), cert. denied, 425 U.S. 911 , 96 S.Ct. 1505 , 47 L.Ed.2d 760 (1976). See also United States v. Ehrlichman, 546 F.2d 910 (D.C.Cir.), cert. denied, 429 U.S. 1120 , 97 S.Ct. 1155 , 51 L.Ed.2d 570 (1977) (burglary of psychiatrist's files regarding Daniel Ells-berg, who released the “Pentagon Papers”); People v. Manson, 61 Cal.App.3d 102 , 132 Cal.Rptr. 265 (1976), cert. denied, 430 U.S. 986 , 97 S.Ct. 1686 , 52 L.Ed.2d 382 (1977) (“Manson family” Tate and LaBianca murder trial); People v. Collins, 43 Mich.App. 259 , 204 N.W.2d 290 (1973), lv. to appeal denied, 391 Mich. 798 , cert. denied, 419 U.S. 866 , 95 S.Ct. 121 , 42 L.Ed.2d 103 (1974) (John Norman Collins convicted of one of several “Ann Arbor” murders).

Most observers would agree that use of ABA Standards would more likely produce error-free trials. I sense in my colleagues, however, a countervailing fear that at best the panel opinion would both hog-tie the trial judge and unduly protract the jury selection process and subject the jurors to embarrassment and harassment.

It is for just such reasons that Rule 24 grants the district courts such wide latitude in these matters. It leaves to their sound discretion the duty to forge a reasonable accommodation between the interests in obtaining an unbiased jury, and in doing so as expeditiously as possible.

United States v. Dansker, 537 F.2d 40, 56 (3d Cir.1976), cert. denied, 429 U.S. 1038 , 97 S.Ct. 732 , 50 L.Ed.2d 748 (1977).

In striking a balance between these competing concerns, trial judges have used several methods of voir dire. There is no mandate to interrogate each potential juror privately. For example, when Gordon Liddy was tried for his role in the Watergate incident, the D.C. Circuit accepted a voir dire procedure whereby the judge asked general questions of the entire jury and individually questioned only those who had an opinion about the case, or who recalled details of the case. Only the eight jurors who acknowledged they were exposed to publicity were individually questioned. United States v. Liddy, 509 F.2d 428, 436-37 (D.C.Cir.1974), cert. denied, 420 U.S. 911 , 95 S.Ct. 833 , 42 L.Ed.2d 842 (1975). 7 Accord, United States v. Bryant, 471 F.2d 1040 (D.C.Cir.1972), cert. denied, 409 U.S. 1112 , 93 S.Ct. 923 , 34 L.Ed.2d 693 (1973); United States v. Mazzei, 390 F.Supp. 1098 (W.D. Pa.), mod. on other grounds, 521 F.2d 639 (3d Cir.), cert. denied, 423 U.S. 1014 , 96 S.Ct. 446 , 46 L.Ed.2d 385 (1975).

United States v. Addonizio, 451 F.2d 49 (3d Cir.1972), cert. denied sub nom. Biancone v. United States, 405 U.S. 936 , 92 S.Ct. 949 , 30 L.Ed.2d 812 (1972), illustrates that a judge in his discretion may conceive of several means of questioning the jury that protect the rights of the defendant while serving the interests of efficiency. In Addonizio , several city officials were prosecuted for their roles in a “kickback” scheme on city projects. The trial judge did not conduct individualized voir dire.

The voir dire examination of prospective jurors was conducted exclusively by the trial judge. Counsel were not per *843 mitted to participate, although they submitted proposed questions, many of which were asked by the court. The preponderance of the voir dire was devoted to determining the extent of each prospective juror’s exposure to pretrial publicity and the effect of that exposure upon his ability to judge the defendants impartiality. Invariably, any prospective juror who indicated he knew something about the case was questioned further as to the nature and extent of his exposure, while at the same time being admonished not to go into the substance of what he had read. Typically the inquiry centered around the particular newspapers in which the prospective juror had seen case-related stories and whether he had read entire articles or only portions thereof (or, in some instances, merely headlines). Prospective jurors were then questioned at some length as to whether they had formed any opinion as to the guilt or innocence of the defendants and whether they could judge the defendants impartially despite some exposure to pretrial publicity.

* * * * * *

Prospective jurors who had formed an opinion as to guilt or innocence of any of the defendants were excused sua sponte by the court. Prospective jurors who had discussed the case were similarly excused, regardless of the nature or extent of the discussion or their own expression of impartiality. The court dismissed on its own motion each prospective juror who indicated extensive exposure to pretrial publicity, without regard to protestations of impartiality.

451 F.2d at 65-67 (emphasis in original).

Another alternative was available here. Blanton submitted a written questionnaire to be completed by the potential jurors. This process could serve as an effective way to screen jurors and to determine which should be questioned further without asking any questions before the entire venire.

In conclusion, there are many alternatives. Judge Gibson’s opinion does not embrace a per se rule.

CONCLUSION

The en banc opinion makes the following observations concerning these defendants:

Governor Blanton ran for and was elected to the highest office in Tennessee state government. This fact guaranteed that for the term of office to which he was elected, he would be constantly in the limelight and every act and word would be subject to comment. The other two defendants accepted positions in state government in close proximity to its head. Under the First Amendment, neither the defendants nor any court in the United States could (or should) have prevented the public media comment which ensued.

En banc op. at 820. 8

The issue here is not whether a famous or notorious person is entitled to a greater measure of deference due to his exalted station in life; he is not. However, a greater degree of care may nonetheless be necessary to assure the same fairness that is ordinarily enjoyed by any private citizen.

I respectfully suggest that my colleagues in the majority may not fully appreciate the impact which their opinion is bound to have upon the jury selection process. In a very real sense, the majority has reverted to a system of which Blackstone reports the English had become “heartily tired” by the time of Queen Anne. 3 Blackstone’s Commentaries 360 (1822). 9 Jurists from Chief *844 Justice John Marshall, to District Judge John J. Sirica, who have struggled with the problem of pretrial publicity would be surprised to learn that the law no longer requires courts to pursue the often tedious task of determining which prospective jurors may entertain “light impressions which may be fairly supposed to yield to the testimony that may be offered,” and which jurors entertain “those strong and deep impressions which will close the mind against the testimony which may be offered in opposition to them, which will combat the testimony, and resist its force .... ” United States v. Burr, 25 Fed.Cas. 49, 50 (No. 14,692g) (C.C.Va.1807). Now, even in the most notorious cases, the parties and the court alike will be left to assess juror bias solely upon the basis of silence in the face of general questions, generally put, entirely without regard to the source or nature of the pretrial publicity or to the extent of individual exposure or reaction to it. Such a procedure no doubt will speed up trials, as it did here. The price, however, in terms of traditional American notions of fairness, is too high.

ATTACHMENT A

Defendant Blanton’s requested voir dire questionaire contained the following inquiries relating to pretrial publicity:

40a. Do you read The Nashville Tennessean? ( ) Yes ( )No

40b. Do you subscribe? ( ) Yes ( ) No ( ) Sunday subscription only

40c. How often do you read it? ( ) Once a week ( ) 2-3 times a week ( ) 4 or more times a week ( ) Every day ( ) Only when something special is reported ( ) Sunday only

41a. Do you read The Nashville Banner? ( ) Yes ( )No

41b. Do you subscribe? ( ) Yes ( ) No ( ) Sunday subscription only

41c. How often do you read it? ( ) Once a week ( ) 2-3 times a week ( ) 4 or more times a week ( ) Every day ( ) Only when something special is reported ( ) Sunday only

42. What other Local/State Newspapers do you read?

43. What Out-of-Town Newspapers do you read?

44. What are your 3 favorite General TV Programs?

1.............„.......................

2.....................................

3....................................

45a. What TV News Programs do you watch?......

45b. How many times a week do you watch TV News?

46. What is your favorite Radio Station?..............

47. Please list what Magazines and Periodicals you read:

67. Have you heard the name Blanton? ( ) Yes ( ) No

68. Have you heard the name Blanton in connection with State Government?

( ) Yes ( ) No

69. Have you read anything in the newspapers or heard anything on the radio or television about Ray Blanton?

( ) Yes{ ) No

70. Was what you heard: Good ( ) Bad ( )

71. Do you feel that Ray Blanton is Corrupt?

( ) Yes ( ) No

72. Since Ray Blanton has been accused of a crime, do you believe that he is guilty?

( } Yes( ) No

73. Has the publicity which Ray Blanton has received and the resulting public notoriety affected your opinion of Governor Ray Blanton?

( ) Yes ( ) No

74. Can you separate Governor Ray Blanton from his co-defendants Mr. Hood and Mr. Allen or from other people about whom you may have read who were employed by Governor Blanton during his administration?

( ) Yes ( ) No

App. 241-42, 243. None of the above questions was asked.

*845 ATTACHMENT B

Defendant Hood submitted the following proposed questions for voir dire concerning pretrial publicity:

40. Have you talked with anyone who claimed to know any of the facts supposedly involved in this case?

41. Do you regularly read The Tennessean?

42. Do you regularly read The Nashville Banner?

43. Do you regularly read The Columbia Herald?

44. Do you regularly read The Clarksville Leaf Chronicle?

45. Do you regularly watch the daily news on Nashville television stations?

46. Which station do you watch with the greatest frequency?

47. Do you regularly listen to radio newscasts?

48. Have you read any newspaper articles that referred to Clyde Edward Hood, Jr.?

49. In what newspaper did you read these articles?

50. Did these articles purport to give facts that you now believe to be related to the matter currently going to trial?

51. Do you remember any of the details of these articles?

52. Have you seen any television newscasts that referred to Clyde Edward Hood, Jr.?

53. Did these newscasts purport to give details that you now believe to be related to the matter currently going to trial?

54. Do you now remember what those details were?

55. Have you heard any radio newscasts that referred to Clyde Edward Hood, Jr.?

56. Did these newscasts purport to give details that you now believe to be related to the matter currently going to trial?

App. 641-42. None of the above questions was asked.

ATTACHMENT C

Defendant Allen submitted the following proposed questions for voir dire concerning pretrial publicity:

14. Have you received any knowledge or information about the case by way of the newspapers, radio, television, talking with acquaintances, or otherwise?

15. Have you received any knowledge or information about any other criminal case involving State officials, employees, or members of the family of any defendant, by way of newspapers, radio, television, talking with acquaintances, or otherwise?

Neither of the above questions was asked.

. The published opinion lists Bailey Brown as trial judge. 700 F.2d at 298 . The jury selection process under scrutiny, however, took place before another judge of this circuit. Judge Brown took over after jury selection, when the original judge, through circumstances completely beyond his control, was unable to continue. Both were Circuit Judges, and each was successively designated by the Chief Judge of this Circuit to sit as trial judge due to the self-disqualification of all the district judges in the Middle District of Tennessee.

. Baldwin’s conviction in Memphis of four counts of a federal indictment charging him with arson and unlawful use of explosives was upheld by a panel of this court in United States v. Baldwin, 709 F.2d 1509 (6th Cir.1983).

. See En banc Op. at 829, ante.

. In Swain v. Alabama, 380 U.S. 202, 218 , 85 S.Ct. 824, 834 , 13 L.Ed.2d 759 (1965), the Supreme Court noted that peremptory challenges and challenges for cause have “fallen into disuse” in England. One explanation for this is the “greater control” which English courts exercise over pretrial publicity. Swain, 380 U.S. at 218 n. 24, 85 S.Ct. at 835 n. 24. I fully agree with the majority’s concern for the right of the press to report ongoing criminal investigation and trials, especially those involving affairs of public importance. However, concepts of fair trial and free press are not necessarily mutually exclusive. If a more sensitive voir dire is necessary to accommodate both interests, in my opinion, the effort is fully justified by the values implicated.

. See Motion Concerning Voir Dire or in the Alternative Change of Venue or Severance, docketed April 20, 1981.

. The Standard provides:

The following standards govern the selection of a jury in those criminal cases in which questions of possible prejudice are raised.

(a) If there is a substantial possibility that individual jurors will be ineligible to serve because of exposure to potentially prejudicial material, the examination of each juror with respect to exposure shall take place outside the presence of other chosen and prospective jurors. An accurate record of this examination shall be kept by court reporter or tape recording whenever possible. The questioning shall be conducted for the purpose of determining what the prospective juror has read and heard about the case and how any exposure has affected that person’s attitude toward the trial, not to convince the prospective juror that an inability to cast aside any preconceptions would be a dereliction of duty.

ABA Standards for a Fair Trial and Free Press, section 3.5 (final draft 1974).

. Although the court found that such voir dire is consistent with the ABA Standard, it is not. The ABA Standard requires individualized voir dire of all potential jurors. See note 6, supra.

. See note 4, supra, for comment on First Amendment values.

. Blackstone reports that under “ancient law, the jury was to come de vicineto, from the neighbourhood of the vill or place where the cause of action was laid in the declaration.” 3 Blackstone’s Commentaries 359 (1822). The rationale for this selection system was that jurors from the parties’ neighborhood would “know beforehand the characters of the parties and witnesses, and therefore they better knew what credit to give to the facts alleged in evidence.” Id. Even in Blackstone’s time, however, it was apparent that jurors with prior knowledge of the parties often could not set aside their prejudices:

*844 But this convenience [i.e., prior knowledge] was overbalanced by another very natural and almost unavoidable inconvenience; that jurors, coming out of the immediate neighbourhood, would be apt to intermix their prejudices and partialities in the trial of right. And this our law was so sensible of, that it for a long time has been gradually relinquishing the practice.

Id. at 359-60 . In the reign of George II, the de vicineto system was completely abolished, in favor of the de corpore comitatus system, by which jurors were selected “from the body of the county at large.” Id. Thus, we have come almost full circle from a system preferring jurors with prior knowledge, to a system seeking to exclude such persons, to the present system under which the defense is barred from determining whether prospective jurors have prior knowledge or not.