“The United States Supreme Court has not established any per se rule which it requires trial judges to follow in the voir dire of a jury venire.... These opinions [of the Supreme Court] emphasize the necessity of the exercise of trial judge discretion concerning the problems actually confronting him.”
How later courts described this case
- “The United States Supreme Court has not established any per se rule which it requires trial judges to follow in the voir dire of a jury venire.... These opinions [of the Supreme Court] emphasize the necessity of the exercise of trial judge discretion concerning the problems actually confronting him.”
- juror self-evaluations during voir dire concerning whether pretrial publicity had resulted in opinions about guilt or innocence that could not be set aside
- detailing adverse pretrial publicity
- former Tennessee governor received fair trial despite 240 adverse articles in local newspapers
Written by the judges who cited it.
The opinion
KEITH, Circuit Judge,
dissenting.
I am delighted to join in Judge Engel’s excellent, thorough and comprehensive opinion. I am, however, compelled to write separately, because as a member of the original panel in this case, I am totally convinced that we were correct in reaching the conclusion that the defendants were denied a fair and impartial trial, as guaranteed them by the Sixth Amendment of the United States Constitution. This denial, in my judgment, was based on the inadequate voir dire examination.
This case is a direct appeal from a federal criminal trial. We have a duty as an appellate court to exercise supervisory authority over the conduct of such trials. If this case involved habeas corpus review of a state court conviction, we could only overturn the conviction if the error rose to the level of constitutional dimensions. However, in this case, our scope of review is not so limited. It is broad, it should be broad. We have an obligation and indeed a duty to ensure that federal criminal trials are fairly conducted. Judge Gibson’s 1 superb opinion for the panel was faithful to this duty.
*846 Words fail to do justice to the amount of publicity this case has received — pre- and post-judgment. At issue in this case is the alleged conduct of a former governor, the governor’s campaign manager and a former special assistant to the governor. A federal indictment of a former governor is by itself an extraordinarily newsworthy item. This is particularly true because the alleged federal criminal violations occurred during the governorship. Moreover, defendant Leonard Ray Blanton was no ordinary governor. His successor, Governor Lamar Alexander, was sworn in several days ahead of schedule, allegedly to prevent Governor Blanton from pardoning or commuting the sentences of numerous state prisoners. The alleged corruption of the Blanton administration has been and will be the subject of books, articles and historical research, and perhaps a movie.
We have no control over the verdict of public opinion or the verdict of history. This case, however, concerns something that is more important and fundamental — a man’s liberty and his right to a fair trial. Under our system of justice, everyone, including an allegedly corrupt ex-governor, is entitled to a fair trial before a fair and impartial jury of his peers — no more and no less. The record in this case as to voir dire, contains none of the assurances which would guarantee that the jury was fair and impartial. The trial judge did not ask the prospective jury panel what they had heard about the case, the defendants or the source of such information. The judge did not ask the venireman whether they had formed an opinion about the case nor did he probe the nature and extent of that opinion. The trial judge simply asked the prospective jurors whether they could put aside any opinion or prejudice they may have, and decide the case on the evidence before them. This was woefully inadequate considering that the case concerned: (1) an allegedly notorious former governor; (2) a trial which was located in the state capital and the subject of massive media coverage; and (3) alleged offenses that occurred while the ex-governor was in office.
In my experience, many jurors, consciously or subconsciously, tend to believe that a defendant, if indicted, is guilty. After all, they say, the government would not bother investing the time, energy and effort to investigate and indict a person unless there was good reason to believe that person was guilty. In the ordinary case, this belief is corrected by argument of the attorneys and instructions from the judge. A man is presumed innocent in our society, under our laws, until he is proven guilty beyond a reasonable doubt. In a case such as this, however, there has been a drum beat of intensive publicity for two years prior to trial. Indeed, the publicity continues. These extraordinary circumstances, at a minimum, required careful, even individual questioning of prospective jurors. No literate resident in Nashville, or for that matter, in the entire State of Tennessee, could fail to have at least an impression about former Governor Blanton. Therefore, only the most careful, indeed, individual questioning could ensure the selection of an impartial jury.
In the federal system, a trial judge has broad authority over voir dire. A federal trial judge can either conduct voir dire himself, or allow the attorneys to question the jurors, or in the alternative they can both share the conducting of the voir dire. In practice, most federal trial judges conduct voir dire themselves. It is rare that attorneys are permitted to question the jurors. This is in contrast to some state systems where attorneys routinely conduct the voir dire of the jury.
In this case, the trial judge followed the federal custom — he conducted the voir dire entirely himself. The Judge exercised his discretion and did not permit the attorneys to question the jury panel. Because the trial judge assumed the duty of conducting voir dire, it was particularly important that he carefully probe any possible source of bias. It is distressing that a majority of the en banc court has approved the bare-bones questions that occurred in this highly publicized case.
*847 I find particularly distressing the majority’s statement concerning publicity. This statement intimates that the defendants created some of the publicity by running for public office or associating with a man in high public office. The majority suggests that the defendants deserved what they got, or that this in some way, justified the inadequate voir dire. Such a suggestion is indeed, incredible. Does the majority actually believe that a man stands before the bar of justice in a lesser light because he was an elected public official? The reason why a case is highly publicized should be irrelevant. What matters are the steps taken to ensure a defendant has a fair trial — regardless of the source of reasons for publicity. Whether a man ran for high public office should have no effect on his basic constitutional rights or on this Court’s review of his conviction.
I am, frankly, at a loss to explain why the en banc court has approved this voir dire. There are no cases on point which approve questioning so limited as what was permitted in this case. The majority opinion establishes an unwise and dangerous precedent which tampers with basic rights. More importantly, we have no way of knowing, based on the record of the voir dire in this case whether the defendant’s convictions may well have been influenced and procured not by what took place at trial or during the course of the trial, but by outside influences. We should not tolerate such a shotgun and cavalier result. The defendants are entitled to a new trial. I respectfully dissent from the majority’s insistence on not giving them that new trial.
. Judge Gibson was formerly a U.S. District Judge and also Chief Judge of the Eighth Circuit.