Petition — Lukefahr v. United States
Supreme Court brief1980
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SEP 7 1979
IN THE SUPREME cou Reowyre. 9085, JR, CLERK
OF THE .
UNITED STATES.
OCTOBER TERM, 1979
No. #9-4 - 3 YU]
DAVID LEE LUKEFAHR,
STEPHEN DALE LUKEFAHR,
THOMAS P. LUKEFAHR
a/k/a THOMAS JAMES DAVISON,
Petitioners,
Wee
UNITED STATES OF AMERICA,
Respondent.
PETITION FOR
WRIT OF CERTIORARI
TO THE UNITED STATES
COURT OF APPEALS
FOR THE FIFTH CIRCUIT
EDWIN MARGER
DIANE E. MARGER
Law Offices of Edwin Marger
Suite 320, 6666 Powers Ferry Road
Atlanta, Georgia 30339
(404) 955-1010
ATTORNEYS FOR PETITIONERS
IN THE SUPREME COURT
OF THE
UNITED STATES
OCTOBER TERM, 1979
NO. 79-
DAVID LEE LUKEFAHR,
STEPHEN DALE LUKEFAHR,
THOMAS P. LUKEFAHR
a/k/a THOMAS JAMES DAVISON,
Petitioners,
Vv.
UNITED STATES OF AMERICA,
Respondent.
PETITION FOR
WRIT OF CERTIORARI
TO THE UNITED STATES
COURT OF APPEALS
FOR THE FIFTH CIRCUIT
EDWIN MARGER
DIANE E. MARGER
Law Offices of Edwin Marger
Suite 320, 6666 Powers Ferry Road
Atlanta, Georgia 30339
(404) 955-1010
ATTORNEYS FOR PETITIONERS
INDEX
Citation to Opinion Below.........eeeeeees
TE RS
Constitutional and Statutory
PEI, MUU WUEWO ccc ccccccvcccccccece
LE
a
Reasons for Granting the Writ:
I.
The decision of the Court of Appeals
for the Fifth Circuit is in direct
conflict with holdings of the Courts
of Appeals in other Circuits which
require that the Court of Appeals
use the "probability of prejudice"
standard for granting change of
WUE UEURERESSEOG sc ¥ 506s ccccce Saves
A.
The decision below raises an
important issue with respect
to the supervisory powers of
the Appellate Court in review-
ing the decisions of Federal
District Courts which deny a
change of venue or other
procedural remedies in the
face of massive, inherently
prejudicial pre-trial publicity...
-ji-
13
26
Il,
Ill.
B. The decision of the Court of
Appeals for the Fifth Circuit
and those of other Circuits fail
to delineate articuable standards
for determining whether the
probability of prejudice "is so
great from prejudicial pre-trial
publicity that a change of
venue should be granted prior
to VOir dire™..cccccccccccccces ce So
C. The decision of the Court of
Appeals for the Fifth Circuit
conflicts with findings of other
Circuit and District Courts that
refuse to accept juror assurances
of impartiality where prejudicial
contamination of the jury has
been SHOWN...cecccccccees coccee 44
The decision of the Court of Appeals
for the Fifth Circuit holding that the
Trial Court's general voir dire of the
jury regarding their exposure to
inherently prejudicial mid-trial
publicity, when combined with the
Court's instructions, conflicts with
decisions of other Circuit Courts..... 59
The decision of the Court of Appeals
for the Fifth Circuit holding that
comments on Petitioners’ post-arrest
silence were not violative of their
right to remain silent when read
in the context of the argument
in its entirety conflicts with case
precedent of this Court and other
Circuit Courts... ccccccccccccccccees 77
SOGOU POTTS TTT TeT ECT CEO re TTC rT Te 82
Appendix
Appendix
Appendix
Appendix
Appendix
Appendix
Appendix
Appendix
Appendix
s ae
Appendeces
Prospective juror responses
during voir dire
Empanelled juror responses
during voir dire
Newspaper excerpts linking
Federal marijuana smuggling
charges with State murder
charges
Newspaper excerpts regarding
alleged criminal activities or
convictions of Petitioners
Copies of newspaper articles
published during trial
Juror subscriptions to
Tallahassee Democrat
Pictures shown during
television newscasts linking murder case
with Federal marijuana case
Dissenting opinion in United
States v. Haldeman, 559 F.2d 31 (5th C
1976)
Conversion of Record to
Transcript Citations
Opinion in United States v.
Capo, 595 F.2d 1086 (5th Cir. 1979)
-iii-
TABLE OF CASES CITED
Supreme Court
.
Adams v. United States ex rel.
McCann, 317 U.S. 269 (1942)....eee.
Barker ve Wingo,
407 U.S. 524 C2902bec00n5s ee is
Doyle v. Ohio,
426 0.8. 610 (1976).A.cs5ene eee
Estes ve Texas,
381 U.S. 532 (290GS)ciwnscesebeeeeees
Fay v. New York,
332 U.S. 532 , rehearing denied,
319 U.S. 706 (1967 i ccscccunseeees vee
Frank v. Mangum,
Griffin v. California,
380 U.S. 609 (1965), rehearing
denied, 381 U.S. 957 (1965)....eee. .
Groppi ve Wisconsin,
400 U.S. S65 CU9TE) cveaeeeeeee bacuws
Irvin v. Dowd,
366 U.S. 717 (3960)..0555ee caer
Marshall v. United States,
~ $00 U.S. 340 Cleeeiaceeeee Apert ne
McNabb v. United States,
318 U.S. 332, rehearing denied,
319 U.S. 764 (298s }icscccsucuvues ven
Murphy v. Florida,
421 0.5. 7 C1976). ;
Page
47, 49
26
80
18, 22, 23,
24, 47, 59,
74
26, 27
67, 68
80, 81
48, 49
23, ef, 41,
48, 57
ci, 28, 61,
18, 22, 23,
24, 28, 29,
Table of Cases, Cont'd.
Nebraska Press Ass'n, et al. v. Stuart,
oe Se ee) ee epee
Rideau v. Louisiana,
Soe LS Sa, Bel.) ee
Sheppard v. Maxwell,
Ee eS ote oe awcewes
Sinclair v. United States,
a vce v ace
Spies v. People of Illinois,
ee ee eweneeee
Tumey v. Ohio,
as WO CISC E) vce sce vicueeteas
Turner v. Louisiana,
SSh .8 SSS 8 Serre
United States v. Hale,
eae, SUE CET O) cok boas vbacwes cee
Wilson v. United States,
Other Federal
Coppedge v. United States,
575 F.2d 504 (D.C. Cir. 1959)
cert. denied, 368 U.S. 855 (1961)...
Delaney v. United States,
199 F.20 107 (ist Cir. 1952)...ceee.
Henslee v. United States,
~ 246 F.2d 193 (5th Cir. 1957).....06.
Mares v. United States,
383 F.2d 805 (10th Cir. 1967)
cert. denied, 394 U.S. 963 (1967)...
eyo
ee ee dene ee wine
47,
23
68
80
81
32
70
72
23,
33,
48
2c,
25,
49,
76
49
i 4
Table of Cases, Cont'd.
Pamplin v. Mason,
3e8 Pca Lt Cotte Clr. 1966) bi. cveicvccs
Silverthorne v. United States,
400 F.2d 627 (9th Cir. 1968)........
United States v. Agueci,
310 F.2d Sif in = is >. eee
United States v. Akin,
562 F.2d 459 (7th Cir. 1977)........
United States ex rel. Bloeth v. Denno,
313 F.2d 364 (2nd Cir. 1963)
cert. denied, 372 U.S. 978 (1963)...
United States v. Brady,
579 F.2d 1121 (9th Cir. 1978).......
United States v. Capo,
595 F.2d 1086 (5th Cir. 1979).......
United States v. Concepcion Cueto,
515 F.2d 1600 (list Cir. 1975).......8.
United States v. Gullion,
575 F.2d 26 (1st Cir. 1978).......0.
United States aldeman,
ve H
BOo £18 Fh Cc tey ahs 2B9T6) wks
United States v. Hall,
536 F.2d 313 (10th Cir. 1976)....
United States v. Hankish,
Ce eo By a ee OS) ee
United States v. Herring,
~~ 568 F.2d 3 1099 Cth oo ae, |: ee
United States v. Largo,
346 F.2d 253 (7th Cir. 1965)
cert. denied, 382 U.S. 904 (1965)...
-Vvi-
Page
22, 23
) ey ee
té, 4, 3
76
71
46, 32, 33,
48, 49, 50,
52, 54, 56
Ta, 3
36, 60, 61,
71, 74
Table of Cases, Cont'd.
United States v. Lord,
565 F.2d 831 (2nd Cir. 1977)....ee0-
United States v. Perrotta,
553 F.od 247 (lst Cir. 1977). .cceees
United States v. Polizzi,
500 F.2d 856 (9th Cir. 1974)
cert. denied, 419 U.S. 1120 (1975)..
United States v. Schrimsher,
493 F.ed 848 (5th Cir. 1974)......-.
United States v. Titsworth,
422 F.Supp. 587 (D.C. Neb. 1976)..
United States v. White,
——“F40 F.2d 1274 (5th Cir. 1971)
cert. denied, 344 U.S. 949 (1971)...
United States v. Williams,
523 F.2d 1203 (5th Cir. 1975).......
United States v. Williams,
568 F.cd 464 (5th Cir. 1971).....06.
State Cases
Commonwealth v. Casper,
375 A.cd 737 (Pa. Sup. 1977)....ee0.
People v. Martin,
43 N.Y.S.2d 209 (1973). .ccceeeees
State v. Rogers,
241 La. 841, 132 So.2d 819 (1961)...
STATUTES AND CONSTITUTIONAL
61, 65, 66
72
72
72
67
81
20
21, 36,. 5!
4, 37, 3
31, 32
43
PROVISIONS
YU. 8S. CONST. AgnemGs Vecccsscecvctusess
U. S. CONST. Amend. VI..ceeeeeeeeeeees
-vii-
Statutes, Cont'd.
FED.R.CRIM.P. 21(a).cceeeeesssreesecees
21 U.S.C.A. $841... ccceeees cccccccccens
21 U.S.C. Ax $846. .ccccccccccscccccsscees
2B U.S.C.A. $1254(1). cccssccvvcccsecsecs
TREATISES AND OTHER
AUTHORITIES
ABA STANDARDS FOR FAIR TRIAL AND
FREE PRESS, §3.2(b) (1968)... ..ccceeees
ABA STANDARDS FOR FAIR TRIAL AND
FREE PRESS, §3.4(a) (1968)..........6.
ABA STANDARDS FOR FAIR TRIAL AND
FREE PRESS, §3.4(b) (1968). ...seseees
ABA STANDARDS FOR FAIR TRIAL AND
FREE PRESS, §3.5(f).cccccccscccccccses
BROEDER, VOIR DIRE EXAMINATIONS:
AN EMPIRICAL STUDY, 38 SO.CAL.L.
REV. 503 (1969). ..cccvees SOrererere eri
R. FLESCH, THE ART OF CLEAR
THINKING (1969). .cccccccccccccvevevens
-viii-
18
6, 31, 46,
48, 51, 52
t¢ S472
43, 44, 54,
58
54
IN THE SUPREME COURT
OF THE
UNITED STATES
OCTOBER TERM, 1979
NO. 79-
DAVID LEE LUKEFARHR,
STEPHEN DALE LUKEFAHR,
THOMAS P. LUKEFAHR
a/k/a THOMAS JAMES DAVISON,
Petitioners,
Vv.
UNITED STATES OF AMERICA,
Respondent.
PETITION FOR
WRIT OF CERTIORARI
TO THE UNITED STATES
COURT OF APPEALS
FOR THE FIFTH CIRCUIT
The Petitioners, DAVID LEE LUKEFAHR,
STEPHEN DALE LUKEFAHR, and THOMAS
LUKEFAHR a/k/a THOMAS JAMES DAVISON,
respectfully pray that a Writ of Certiorari issue
to review the judgment of the United States
Court of Appeals for the Fifth Circuit in this
case.
OPINION BELOW
The Court of Appeals for the Fifth Circuit
filed an opinion on May 24, 1979. That opinion
and the denial of the Petitioners' Petition for
Rehearing En Banc appear in the Appendix
hereto (Appendix J). The appellate decision is
officially recorded as United States v. Capo,
595 F.2d 1086 (5th Cir. 1979).
JURISDICTION
The judgment of the Court of Appeals for
the Fifth Circuit was entered on May 24, 1979.
Thereafter, these Petitioners timely filed their
Petition for Rehearing En Banc, which was
denied on July 10, 1979. On July 31, 1979, an
order extending time to file Petition for Writ of
Certiorari was entered extending Petitioners'
time for filing by thirty (30) days. This
Petition for Writ of Certiorari has been filed
within thirty (30) days of the entry of that
order. The jurisdiction of the United States
Supreme Court is conferred by 28 U.S.C.
§1254(1).
ee ee
QUESTIONS PRESENTED
1. Whether the Fifth Circuit Court of
Appeals failed to meet its Federal supervisory
obligations by affirming Petitioners' convictions
in a Federal criminal trial under a "mockery of
justice" standard rather than the "probability of
prejudice" standard mandated by this Court,
where there has been a showing that inherently
prejudicial pre-trial publicity inundated the
community in which the trial was held.
2. Whether briefly questioning the jury as
a group concerning a highly inflammatory,
prejudicial article published during the trial was
adequate to vindicate Petitioners' rights to a
f..r trial where the Trial Court was on notice
that most of the unsequestered jurors sub-
scribed to the publication in question, that
these jurors had failed on previous occasions to
follow the Court's instructions, and that the
jurors had not responded truthfully or candidly
during the pre-trial general voir dire con-
cerning their exposure to prejudicial publicity.
3. Whether comments on Petitioners’
post-arrest silence can be cleansed of the taint
x
of unconstitutional infringement on this Fifth
Amendment right by reading and interpreting
the remarks in the context of the argument in
its entirety.
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
This case involves the Fifth and Sixth
Amendments to the Constitution of the United
States, and the following Federal statutes and
rules:
21 U.S.C.A. §841(a).
Prohibited acts A - Unlawful acts
(a) Except as authorized by this
subchapter, it shall be unlawful
for any person’ knowingly or
intentionally-
(1) to manufacture, distri-
bute, or dispense, or possess with
intent to manufacture, distribute
or dispense, a controlled sub-
stance; or
(2) 10 create, distribute, or
or dispense, or possess with intent
to distribute or dispense, a coun-
terfeit substance.
21 U.S.C. §846
Attempt and Conspiracy
Any person who attempts or
conspires to commit any offense
defined in this subchapter is
punishable by imprisonment or fine
or both which may not exceed the
maximum punishment prescribed for
the offense, the commission of
which was the object of the
attempt or conspiracy.
FED.R.CRIM.P. 21
Transfer from the District
for Trial
(a) For Prejudice in the
District. The Court, upon motion
of the Defendant, shall transfer
the proceeding as to him to
another district whether or not
such district is specified in the
Defendant's motion if the Court is
satisfied that there exists in the
district where the prosecution is
pending so great a= prejudice
against the Defendant that he
cannot obtain a fair and impartial
trial at any place fixed by law for
holding Court in that district.
This case also involves the fol-
lowing quasi-statutory materials:
ABA STANDARDS FOR FAIR
TRIAL AND FREE PRESS $3.4
Selecting the jury.
(a) Method of examination.
Whenever there is believed to
be a_ significant possibility that
individual talesmen will be in-
eligible to serve because of
exposure to potentially prejudicial
material, the examination of each
juror with respect to his 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
and how his exposure has affected
his attitude towards the trial, not
to convince him that he would be
derelict in his duty if he could not
cast aside any preconceptions he
might have.
(b) Standard of acceptability.
Both the degree of exposure
and the prospective juror's test-
imony as to his state of mind are
relevant to the determination of
acceptability. A prospective juror
who states that he will be unable
to overcome his preconceptions
shall be subject to challenge for
cause no matter how slight his
exposure. If he has seen or
heard and remembers information
that will be developed in the
course of the trial, or that may be
inadmissible but is not so pre-
judicial as to create a substantial
risk that his judgment will be
affected, his acceptability shall
turn on whether his testimony as
to impartiality is believed. If he
admits to having formed ~= an
opinion, he _ shall be subject to
challenge for cause unless. the
examination shows unequivocally
that he can be impartial. A pro-
spective juror who has_ been
exposed to and remembers reports
of highly significant information,
such as the existence or contents
of a confession, or other incrim-
inating matters that may be in-
admissible in evidence, or sub-
stantial amounts of inflammatory
material, shall be subject’ to
challenge for cause without regard
to his testimony as to his state of
‘
ABA STANDARDS FOR FAIR
TRIAL AND FREE PRESS §3.5
Petitioners LUKEFAHR,
(f) Questioning jurors about
exposure to potentially prejudicial
material in the course of the trial;
standard for excusing a juror.
If it is determined that mat-
erial disseminated during the trial
raises serious questions of possible
prejudice, the court may on its
own motion or shall on motion of
either party question each juror,
out of the presence of the others,
about his exposure to. that
material. The method of exam-
ination shall be the same as that
recommended in_ section 3.4(a)
above. The standard for excusing
a juror who is challenged on the
basis of such exposure shall be
the same as the standard of ac-
ceptability recommended in section
3.4(b) above, except that a juror
who has seen or heard reports of
potentially prejudicial material shall
be excused if the material in
question would furnish grounds for
a mistrial if referred to in the trial
itself.
STATEMENT OF FACTS
This case arose from an alleged drug
smuggling conspiracy, which resulted
Indictment in the Northern District of Florida of
along with David Capo
abn and others. The events which gave rise to the
Federal Indictment also resulted in a State of
Florida murder charge against each of these
~ =
individuals. Your Petitioners LUKEFAHR were
given full immunity from the State charges.
The State and Federal cases were the subject of
massive local news coverage in Tallahassee,
Florida, where the trial took place. The case
became known as the "Sandy Creek Smuggling
Case" and the "Sinkhole Murder Case". (R.
Vol. 2, p. 263).
The magnitude of the pre-trial publicity
immediately prior to the trial of this case is set
out in the Fifth Circuit opinion. (United States
v. Capo, 595 F.2d 1089, n.2 [in three months
preceding trial, twenty-one news stories in
Tallahassee Democrat; one television. station
had run 120 different news reports connecting
murders and drug offenses]). As a result,
Petitioners filed a Motion for Change of Venue
pursuant to FED.R.CRIM.P. 2l(a). At the
initial hearing on the Motion, Petitioners
tendered into evidence numerous newspaper
articles relating to these Petitioners and the
alleged crimes, both State and Federal. (See,
R.Vol. 5, pp. 49, 56; Defendants' LUKEFAHR
Composite Exhibits 2, 3 [copies of the news-
-8-
paper articles published in locality]). The
Trial Court preliminarily denied that Motion.
(R.Vol. 5, p. 57; S.R. Vol. 3, p. 5).
Defense counsel then requested that each
prospective juror be presented for voir dire in
camera and on an individual basis. (S.R.Vol.
3, p. 51). The Trial Court granted that
request. (S.R.Vol. 3, p. 128). After one day
of voir dire, it became apparent tnat the large
majority of prospective jurors had knowledge of
the murders, evidence of which was inadmissible
in the Federal trial. See, e.g., R.Vol. 6, p.
164,
After the first day of voir dire,
Petitioners renewed their Motion for Change of
Venue. (S.R.Vol. 4, p. 314). —
At that hearing, the Petitioners presented
evidence in addition to the newspaper articles
which had previously been submitted. They
tendered a survey taken in the local area which
indicated substantial community exposure to
publicity concerning the State and Federal
crimes. (R.Vol. 6, pp. 33-95). Defense
counsel also called to the witness stand a local
a.
television newscaster. (R.Vol. 6, pp. 20-22).
The newscaster testified about his television
station's news broadcasts surrounding the State
and Federal charges. The station broadcast
approximately 120 segments relating to these
Petitioners. (R.Vol. 6, p. 20). Each time
facts about the Federal case were broadcast,
the word "Murder" surrounded by a red patch
to symbolize blood was displayed on _ the
television screen. (R.Vol. 6, pp. 19, 22 [a
copy of picture displayed for Court], App. G).
In further support of this Motion,
Petitioners offered the testimony of Dr. Patrick
Cook, a psychologist who had been present
during the first day of voir dire. (R.Vol. 6,
p- 96). This expert testified that when
evidence about the Federal case was presented
during trial, the jurors exposed to _ these
newscasts would be_- susceptible to recall
knowledge about the alleged murders because of
the phenomenon of "paired learning" or "paired
association". Dr. Cook also indicated that a
primacy "effect of the use of the murder
information might tend to influence the jurors'
=}@=
.
7
judgment and reaction." (R.Vol. 6, p. 108).
The Trial Court again denied Petitioners' Motion
for Change of Venue, and voir dire commenced
in the same fashion. (R.Vol. 7, p. 34).
Eventually, at least ninety percent (90%)
of the jurors acknowledged some connection in
their minds between the slayings and the drug
offenses allegedly committed by Petitioners.
See, App. A [excerpts of jurors' responses on
voir dire relating to pre-trial publicity]. Many
prospective members of the jury remembered
highly significant and inflammatory information
in great detail. (App. A [52 prospective jurors
described details; six had very little or no
knowledge]}).
During the trial, Petitioners brought to
the Court's attention an inherently prejudicial
newspaper banner headline article which was
published in the newspaper subscribed to by
most jurors. See, App. E. Petitioners re-
quested that an individual voir dire of the jury
be conducted by the Court to determine the
jurors' exposure to the article. The Court
denied the request and asked the jury as a
alle
group whether they had been exposed to the
pre-trial publicity. (R.Vol. 16, p. 8).
Accepting their assurances and expressing his
faith in the jurors' ability to follow his
instructions, the Court denied Petitioners'
request for individual voir dire and proceeded
with the trial. (R.Vol. 16. p. 9).
Finally, during his closing argument, the
prosecutor commented to the jury that the
Petitioners had failed to take the stand in their
own defense. (S.R.Vol. ERs p. 196).
Immediately thereafter, defense counsel
requested a mistrial, which was denied by the
Court.
On the 24th of February, 1978, the jury
returned a guilty verdict against Petitioners
LUKEFAHR pursuant to 21 U.S.C. §841 and 21
U.S.C. §846. The jury also returned a guilty
verdict against the Defendant, David Capo.
The remaining Defendants were acquitted.
Following the jury verdict in the Federal
case, the Trial Court sentenced each of the
LUKEFAHRS to the maximum penalties allowable
under law - five (5) years' confinement and
wt2e
$15,000.00 fine on each Count, with these
sentences to run consecutively. (R.Vol. 4, pp.
561-563). The LUKEFAHRS moved for a new
trial. The Trial Court denied that Motion.
Thereafter, Petitioners LUKEFAHR timely filed
their Notice of Appeal to the Fifth Circuit Court
of Appeals. Oral argument was granted in that
case, and on May 24, 1979, the Fifth Circuit
Court of Appeals affirmed the convictions of
these Petitioners. United States v. Capo, 595
F.2d 1086 (5th Cir. 1979). Petitioners filed
their Petition for Rehearing En Banc, which was
denied on July 10, 1979.
This Petition for Certiorari follows the
denial of the Fifth Circuit Court of Appeals to
rehear this case en banc.
SUMMARY OF ARGUMEN7
I. Prior to the trial of the case, massive
amounts of publicity inundated Tallahassee,
Florida, where the trial was held. Most of the
publicity was inherently prejudicial in nature.
The Trial Court voir dired the jury initially as
a group and later individually. Although
during the voir dire as a group only one pro-
-]3-
spective juror indicated that he had been
exposed to publicity about the case or these
Petitioners, during individual voir dire more
than ninety percent (90%) of the prospective
jurors had knowledge of prejudicial information.
The Judge denied motions for change of venue,
additional peremptory challenges and challenges
for cause. The Fifth Circuit affirmed the Trial
Court's action regarding this pre-trial publicity
by finding that the Trial had not been reduced
by this publicity to a "mockery of justice".
In so doing, the Fifth Circuit failed to
fulfill its Federal supervisory obligation to
insure that, in a completely Federal trial such
as this, even the "probability of prejudice" or
"unfairness" is avoided. By reviewing the
entire trial in retrospect rather than analyzing
the pre-trial publicity and juror exposure in
the pre-trial setting without regard for the
ultimate result, the Fifth Circuit failed to
adequately insure a fair trial. The change of
venue should have been granted prior to voir
dire based on an adequate showing by the
defense of community prejudice. Failing to do
-]4-
this, the Trial Court should have granted the
motion following voir dire where the Court was
put on notice that the publicity had indeed
inundated the community as evidenced by the
exposure of the vast majority of these jurors.
Instead, the Trial Court’ relied on _ the
assurances of neutrality by the jurors despite
evidence and reason indicating that these
protestations of impartiality were unreliable.
While State Courts are held to the Due
Process standard of fair trials, this Court has
long demanded that in Federal trials, the
Court's protection should exceed that standard
when dealing with prejudicial pre-trial
publicity. Because uniform application of the
supervisory standard is non-existent within the
various jurisdictions, a definite standard for
Federal Courts must be set to guide District
Courts in evaluating the prejudicial nature of
pre-trial publicity.
II. Where an inherently prejudicial article
is published in a local paper during the trial,
the Trial Court must take appropriate in-depth
measures to insure that jurors have not been
=i 9-
exposed to the article. In this case, the
Petitioners proved that a majority of un-
sequestered jurors regularly subscribed to the
newspaper in which this article was published,
and that the article was prominently displayed
as the banner headline article.
Because the Trial Court was aware that
this jury failed to respond candidly when
questioned as a group, the Court's brief
questioning of the jurors concerning the article
did not protect these Petitioners' Sixth
Amendment rights.
III. The prosecutor, during his closing
argument, commented on Petitioners' failure to
testify at trial or after their arrest. The Fifth
Circuit Court of Appeals recognized that,
viewed by itself, the prosecutor's statement,
when combined with his gesture toward these
Petitioners, "appeared perhaps to be a remark
on Defendants' failure to take the stand."
However, the Court then approves of the
remarks, stating that when viewed in the
context of the entire argument, the remarks
only rebutted the entrapment defense. The
joke
novel interpretation of the remarks by the Fifth
Circuit differs from both the Government's and
that of the Petitioners. Moreover, these Pet-
itioners did not allege entrapment as a defense.
Where the jury could have interpreted the
remark as a comment on these Petitioners’
failure to testify, it must be Constitutional
error regardless of the context of the
argument.
REASONS FOR GRANTING THE WRIT
I. The decision of the Court of
Appeals for the Fifth Circuit
is in direct conflict with hold-
ings of the Courts of Appeals
in other Circuits which re-
quire that the Court of
Appeals use the "probability
of prejudice" standard for
granting change of venue.
Prior to the trial of this case, the
Petitioners LUKEFAHR, pursuant to their Motion
for Change of Venue, proffered evidence of
pervasive community prejudice in the form of
highly inflammatory publicity and intensive
media coverage. Petitioners argued that in this
circumstance, prejudice must be presumed, and
that they had no duty to show actual jury bias.
~~, =
See, Murphy v. Florida, 421 U.S. 794, 798-99
(1975); Sheppard v. Maxwell, 384 U.S. 333,
362 (1966); Estes v. Texas, 381 U.S. 532,
542-43 (1965).
The Petitioners contended further at the
Trial Court and Appellate Court levels that the
proper standard for determining whether there
was a "probability of prejudice" is set forth in
numerous Supreme Court cases and codified by
the American Bar Association in its Standards
on Fair Trial and Free Press. Sheppard v.
Maxwell, 384 U.S. 333 (1966); Estes v. Texas,
381 U.S. 532 (1965); Rideau v. Louisiana, 373
U.S. 723 (1963); ABA STANDARDS, Fair Trial
and Free Press §3.2(b) (1968). The ABA
Standards state that proof of prejudice
sufficient to require a change of venue may be
made by "qualified public opinion surveys...as
well as other materials having probative value."
ABA STANDARDS, Fair Trial and Free Press,
§3.2(b) (1968); cited in United States v.
Chapin, 515 F.2d 1274 (D.C. Cir. 1975). In
United States v. Chapin, the Court of Appeals
for the Second Circuit stated that where commu-
al§~
nity passions are high, or publicity both
localized and virulent, the Court’ should
carefully consider whether the Defendants
should even be required to prepare for a trial
before a predictably hostile jury, and that a
ruling on a Motion for Change of Venue should
not automatically be postponed until voir dire.
Id. at n.7.
The Petitioners proffered evidence prior to
the voir dire of the jury indicating that there
was massive, inherently prejudicial publicity in
Tallahassee, Florida. The Fifth Circuit itself
stated in its opinion, U.S. v. Capo, 595 F.2d
1089, n.2, that there was substantial evidence
before the Trial Court to find that: (1) there
was massive inundation of the community from
which the prospective jurors were selected, and
(2) that the contents of this publicity was in-
herently prejudicial to these Petitioners.
Despite these conclusions, the Fifth Circuit
failed to find reversible error in the Trial
Court's denial of Defendants' Motion for Change
of Venue or Request for Additional Peremptory
Challenges. The Court did not explicitly set
=] 9-
forth what the Petitioners would have had to
show for the Court to find the "probability of
prejudice".
However, in an earlier case, the Fifth
Circuit's analysis of the probability of prejudice
standard was as follows:
"(t]he test is no longer wheth-
er the prejudice found its
way into the jury box at the
trial...as we read the Su-
preme Court's case, the test
is: where outside influences
affecting the community's
climate of opinion as to a
Defendant are inherently
suspect, the resulting pro-
bability of unfairness requires
suitable procedural safeguards
such as a change of venue to
insure a fair and _ impartial
trial." United States v.
Williams, 523 F.2d 1203, 1208
(5th Cir. 1975).
The contents of news articles concerning
these Petitioners were inherently prejudicial.
Both the Trial Court and the Fifth Circuit
Court of Appeals recognized that the contents
of these articles included statements of these
Defendants' prior convictions, guilty pleas on
similar charges and a connection between the
drug smuggling case and the murders of four
people. (App. C [linking Defendants in Fed-
~2Oe
eral case with State of Florida murder charges];
App. D [Defendants' prior criminal records].)
(See, U.S. v. Capo at 1089, n.2, 1091, n.5).
Such material has been held by this Supreme
Court to be inherently prejudicial. See,
Marshall v. United States, 360 U.S. 310 (1959)
[subjective and editorial in nature]; United
States v. Williams, 568 F.2d 464 (5th Cir.
1971).
Recognizing the _ inherently prejudicial
nature of the publicity and instead of utilizing
the probability of prejudice standard
enumerated by the Supreme Court, the Fifth
Circuit Court of Appeals stated that:
"We do not believe that Appel-
lants were subjected to pre-
judicial publicity of such a
magnitude that it dominated
the proceedings and reduced
the trial to a mockery of
justice..." Id. at 109],
avoiding the appropriate standard of whether or
not there was any probability of prejudice.
The Supreme Court’ standards, which
should have been applied in the instant case,
are as follows:
a2 le
"When a Defendant proffers
evidence of pervasive commu-
nity prejudice in the form of
highly inflammatory publicity
or intensive media coverage,
prejudice is presumed and
there is no further duty to
establish actual prejudice."
Murphy v. Florida, 421 U.S.
794, 798-99 (1975); Sheppard
v. Maxwell, 384 U.S. 333, 362
(1966); Estes v. Texas, 381
U.S. 532, 542-43 (1965);
Pamplin v. Mason, 364 F.2d
1, 4-5 (5th Cir. 1966).
This standard implicitly requires that the
Court make this determination prior to voir dire
of the jury. Where the Defendant offers other
evidence of community prejudice, such as that
recommended by the American Bar Association,
the Court should not voir dire the jury. The
types of information presented at the trial below
by Petitioners was exactly the variety sug-
gested by the ABA, including: public opinion
surveys, examples of inherently prejudicial
publicity in massive amounts, and other ob-
jective evidence of the probability of community
prejudice. As set forth in the _ preceding
Supreme Court cases, a showing of actual bias
is not required: a Judge should make his
independent determination without regard to
o2D~
voir dire of the jury. (Murphy v. Florida,
Supra at 798-99; Sheppard v. Maxwell, Supra
at 362; Estes v. Texas, Supra at 542-43).
However, the Fifth Circuit holds, in
United States v. Capo, that the probability of
prejudice standard requires that the Defendant
must show:
"Publicity of such a magnitude
that it dominated the proceed-
ings and reduced the trial to
a mockery of justice."
Opinion at p. 1091, United
States v. Capo, at 1091-1092.
This standard conflicts with those set down by
the United States Supreme Court and _ those
established and followed by other Circuits.
Irvin v. Dowd, 366 U.S. 717 (1961); Rideau
v. Louisiana, 373 U.S. 723 (1963); Tumey v.
State of Ohio, 273 U.S. 510, 543 (1927);
Sheppard v. Maxwell, 384 U.S. 333 (1966).
See, Pamplin v. Mason, 364 F.2d 1 (5th Cir.
1966).
Moreover, the "mockery of justice"
standard espoused by the Fifth Circuit is
inherently unworkable where pre-trial publicity
is at issue. In essence, this standard is an
«2%
evasion of the Court's obligation to determine
prior to trial whether a "probability of
unfairness" exists in the jurisdiction. See,
Murphy v. Florida, 421 U.S. 794 (1975);
Sheppard v. Maxwell, 384 U.S. 333 (1966);
Estes v. Texas, 381 U.S. 532 (1965). The
standard set forth by the Fifth Circuit cannot
be applied prior to trial. Nor does the Court
imply that this is necessary. The Fifth Circuit
merely concluded that the publicity in this case
did not dominate the trial or reduce the trial to
a mockery of justice. In so doing, the Fifth
Circuit completely fails to give proper consid-
eration to the effect of pre-trial publicity in
and of itself. The effect of pre-trial publicity
under the Court's Federal supervisory standard
must be considered as an independent fact.
This determination of whether the "probability
of prejudice" or "unfairness" exists in the
community must be made prior to trial.
Therefore, the standard of "mockery of justice"
is completely inapplicable to the required
determination.
«2Ge
The "mockery of justice" standard as
applied in the pre-trial publicity setting con-
flicts with the "probability of unfairness"
standard. As one Court has stated:
"Where community passions are
high or publicity both local-
ized and virulent, it might
well be that a Court would
carefully consider whether the
Defendant should even be
required to prepare for a
trial before a_ predictably
hostile jury and not auto-
matically hold off ruling on
the motion until voir dire..."
United States v. Chapin, 515
F.2d 1274, 1286, n.7 (D.C.
Cir. 1975).
As this Court reiterated in Nebraska Press
Ass'n., et al. v. Stuart, 427 U.S. 539 (1976),
citing Sheppard v. Maxwell, 384 U.S. 333, 362
(1966):
"Given the pervasiveness of
modern communication and the
difficulty of effacing pre-
judicial publicity from the
minds of the jurors, the Trial
Courts must take strong
measures to insure that the
balance is never’ weighed
against the accused..."
The Fifth Circuit has failed to apply this
principle by establishing its mockery of justice
standard.
A. The decision below raises an
important issue with respect
to the supervisory powers of
the Appellate Court in review-
ing the decisions of Federal
District Courts which deny a
change of venue or other
procedural remedies in the
face of massive, inherently
prejudicial pre-trial publicity.
This is a _ strictly Federal criminal case,
arising from Indictments delivered by _ the
Federal Grand Jury and tried in the United
States District Court for the Northern District
of Florida. Therefore, the Fifth Circuit should
have determined the case, exercising its Federal
Supervisory powers.
This Court has recognized the supervisory
power of the Federal Appeal Courts, see,
Barker v. Wingo, 407 U.S. 514, 530 n. 29
(1972), as well as its own supervisory power.
See, e.g., Fay v. New York, 332 U.S. 26l,
287, rehearing denied, 332 U.S. 784 (1947).
The power of the Court to determine cases
based upon the supervisory power is long
established. Moreover, in the exercise of this
power, the Federal Courts may establish stand-
aZte
ards for their proceedings in addition to or
more stringent than those required by due
process. As this Court stated:
"Over Federal proceedings, we
may exert a supervisory
power with greater freedom to
reflect our notions of good
policy than we may _ consti-
tutionally exert over pro-
ceedings in State Courts, and
these expressions of policy
are not necessarily embodied
in the concept of due pro-
cess." Fay v. New York,
Id. See also, McNabb v.
U.S., 318 U.S. 332, rehear-
in denied 319 U.S. 784
T1843)
In the area of pre-trial publicity, this
Court, in the exercise of its supervisory
powers, has established a standard for re-
viewing claims of prejudicial pre-trial publicity.
This standard, the probability of unfairness
standard, is more stringent than the historic
due process analysis. See, Irvin v. Dowd, 366
U.S. at 717 (1961) (concurring opinion of Chief
Justice Berger); Rideau v. Louisiana, 373
U.S. 723 (1963) (dissenting opinion, Justice
Clark).
Recognizing that a Federal supervisory
standard has been established by the Supreme
a2'Te
Court, the issue is whether the Appellate
Courts have a duty to impose the supervisory
standards over criminal cases in which pre-
judicial publicity has been shown in lieu of
applying the less vigorous due process re-
quirements.
A well-reasoned and thorough analysis of
the distinction between the Federal supervisory
standard and the due process requirement in
reference to pre-trial publicity is set out in the
dissenting opinion of Circuit Judge MacKinnon
in United States v. Haldeman, 559 F.2d 31,
145-161 (D.C. Cir. 1976) (App. H). In his
dissent, Circuit Judge MacKinnon delineates the
rules of presumptive prejudice versus’ the
requirement of the showing of actual prejudice.
Id. at 145. See also, Marshall v. United
States, 360 U.S. 310 (1959); Murphy v.
Florida, 421 U.S. 794 (1975).
This Court’ specifically set forth in
Marshall that it would reverse the conviction
based upon the exercise of its supervisory
power to formulate and apply proper standards
for enforcement of the criminal law in the
-28-
Federal Courts, and not as a matter of Con-
stitutional compulsion. Id. at 313.
Under this standard applicable to the
Federal Courts, a change of venue should be
granted prior to voir dire of the jury where
substantial prejudicial pre-trial publicity is
shown.
In applying the standard to the instant
case, substantial publicity containing inherently
prejudicial information was widely disseminated
in the community. As required by the above-
cited case law, Petitioners met their burden by
a thorough showing that this information was
published, was prejudicial, and was circulated
in the community from which these jurors were
selected. See, Murphy v. Florida, 421 U.S.
794 (1975); Defendants' LUKEFAHR Composite
Exhibits 2, 3, 14; R.Vol. 6, p. 20. App.
A-D. See also, R.Vol. 2, pp. 258-262 [Motion
for Change of Venue and Brief in Support
thereof]. See, e.g., R.Vol. 5, pp. 34-57; Vol.
ll, p. 395; S.R.Vol. 3, p. 53; S.R.Vol. 4, p.
298.
-29-
It is important to note that neither the
Fifth Circuit Court of Appeals nor the Federal
District Court trying this case. specifically
distinguished between the Federal supervisory
and the Constitutional standards. In fact, the
Fifth Circuit states in retrospect:
"We note initially, at least,
one Circuit has refused to
invoke its supervisory powers
to adopt a pre-trial publicity
standard. United States v.
Haldeman, 181 U.S. App.
D.C. 254, 559 F.2d 31, 62-63
(1976). We likewise are hesi-
tant to do so in this case...
This Court questions whether
a supervisory standard based
on minimal exposure is es-
sential to preserving an
accused's right under Irvin to
an impartial jury." United
States v. Capo, 595 F.2d
1092, n.6.
The Fifth Circuit appears to be looking for
guidance as to which standard should be
applied. It appears that the Federal Appellate
Courts can apply either the supervisory
standards, which require a more. stringent
application of the concept of "probability of
prejudice", or the Constitutional due process
standard, which would require actual prejudice,
or possibly the "mockery of justice" standard
=_y
actually applied in the instant case. There are
no articuable means of discerning which
standard an Appellate Court should apply in
any given case. The Petitioners urge this
Court to articulate the proper application of the
supervisory standard holding that it should be
applied in every instance in which the case is
strictly "Federal".
In utilizing its supervisory power, the
Federal Court must be guided in knowing first,
whether the standard must be applied uniformly
to all appellate review of District Courts’ find-
ings in reference to pre-trial publicity; and
secondly, some standard must be enumerated as
guidance for the Appellate Courts in deter-
mining whether a Judge has abused his dis-
cretion in finding that despite massive,
inherently prejudicial pre-trial publicity the
Defendants could receive a fair trial. The ABA
Standards surrounding this decision are
instructive and helpful. See, ABA
STANDARDS, §3.4(b), Supra.
In its commentary, the ABA authors write:
"As shown by such cases as People v. Martin,
-3]-
243 N.Y.S.2d 343 (lst Dept. 1963); Delaney v.
United States, 199 F.2d 107 (lst Cir. 1952);
and Rideau v. Louisiana, 373 U.S. 723 (1963),
there are occasions when the inherently pre-
judicial nature of the material, coupled with
knowledge of its wide dissemination in the
commutity, requires the granting of relief
without elaborate soundings of community
sentiment. In such instances, change of venue
may be particularly appropriate when it can be
shown that the news coverage has been far less
pervasive in some other location within the
jurisdiction."
Therefore, according to some _inter-
pretations of the Federal supervisory standard:
"In light of Murphy = and
Marshall, the law is now that
presumptive prejudice is a
factor that must be examined
in venue decisions...if the
Federal standard for pre-
sumptive prejudice exists at
all, it requires the Trial
Court to recognize the
possibility of presumptive
prejudice." United States v.
Haldeman, 559 F.2d 31 at 149
(5th Cir. 1976) (dissenting
opinion).
a$2e
While Supreme Court cases in the past
appear to mandate that the Federal Appellate
Courts and District Courts apply a standard for
reviewing prejudicial publicity, some Districts
have held that it is inappropriate to attempt to
formulate a supervisory power standard for
concluding that a fair jury could not be
selected. United States v. Haldeman, Id. at
62. See also, United States v. Capo, at 1097,
n.6; Rideau v. Louisiana, 373 U.S. 723 (1963)
(dissenting opinion of Justices Clark and
Harlan).
At the same time, many Courts have
explicitly recognized that the Supreme Court,
by exercising its supervisory power over the
Federal Courts, could establish specific stand-
ards to be applied in all Federal cases. See,
e.g., United States v. Gullion, 575 F.2d 26
(lst Cir. 1978). This power does not extend to
State Court proceedings.
The Federal Courts have failed to expand
protection to a criminal Defendant from
prejudicial pre-trial publicity. In fact, some
State Supreme Courts have outpaced the Federal
-33-
Courts in deciding which elements must be
considered in determining whether a change of
venue should be granted under their
supervisory powers. See, €.g-» Commonwealth
v. Casper, 375 A.2d 737 (Pa. Sup. 1977).
Whether these States have adopted this clearer
standard because of due process or other
reasons, the Federal Courts should lead the
way in this crucial area.
Under the facts and circumstances of the
instant case, the Court of Appeals should have
utilized its supervisory powers in reviewing the
decision of the Federal District Court. By so
doing, it would have been compelled to find
that it was harmful error for the Trial Court to
fail to grant the Petitioners' Motions for Change
of Venue or other procedural remedies re-
quested in the face of the massive prejudicial
pre-trial publicity.
This Court, by establishing a policy for
applying the Court's supervisory standard,
should find that the Fifth Circuit erred by
failing to exercise that power. Moreover, the
standard set by the Fifth Circuit's failing to
-34-
a
comply with the Federal standard was
erroneous. Under the proper analysis, the
Trial Court below erred by failing to evaluate,
prior to the trial, whether the publicity
published _ before the trial created the
probability of unfairness or prejudice.
B. The decision of the Court of
Appeals for the Fifth Circuit
and those of other Circuits
fail to delineate articuable
standards for determining
whether the probability of
prejudice "is so great from
prejudicial pre-trial publicity
that a change of venue should
be granted prior to voir
dire".
Once this Court has recognized a Federal
Supervisory standard, the Court must further
specify some standard for reviewing the Trial
Court's determination. Failure of the Courts to
articulate guidelines permits an arbitrary
application of the Supervisory power. Uniform
application would lend more guidance to our
Trial Court Judges. At present, two District
Courts, even within the same jurisdiction, when
presented with cases similar in the quantity and
quality of prejudicial pre-trial publicity, may
reach different results. This may result from
the application of the supervisory standard in
one case and the due process standard in the
other. See, e.g., United States v. Capo, 595
F.2d 1086 (5th Cir. 1979), compare with United
States v. Herring, 568 F.2d 1099 (Sth Cir.
1978); United States v. Williams, 568 F.2d 464
(5th Cir. 1971).
The discrepancy in application is apparent
even within the Fifth Circuit. As stated above,
the Fifth Circuit panel in the instant case failed
to apply the Federal supervisory standard of
avoiding even the possibility of prejudice.
United States v. Capo, Supra. In an earlier
case, the Fifth Circuit stated:
"It is plain that the Marshall
rule is considerably broader
than the Constitutional stand-
ard and provides more pro-
tection against prejudice...
",..This Court, in cases
involving Federal Trials, has
not clearly distinguished
between the Marshall rule and
the Constitutional standard."
United States v. Williams, 568
F.2d at 469.
a36-
The Williams decision was not referred to by the
Court in the instant case.
Articuable standards which are clear and
specific are possible. The standards set forth
by the State of Pennsylvania are illustrative.
In the case of Commonwealth ve Casper,
375 A.2d 737 (Pa. Sup. 1977), the highest
Court in the State of Pennsylvania set forth the
following elements to be considered in deciding
whether a criminal Defendant is entitled to a
change of venue:
"1. The extent of the pre-
trial publicity.
2. The nature of the pre-
trial publicity.
36 The nature of the
community which was subject
to the pre-trial publicity, and
where the trial was scheduled
to take place.
4. The source or sources of
the pre-trial publicity,
including the possibility of
prosecutorial misconduct, in
creating an atmosphere of
hostility towards the accused;
and
-F The familiarity of the
accused's name with the local
populace prior to the time
when charges were brought
37a
against him for which he is
being tried."
Id., at 743.
That Court continued, in applying
these elements:
",,.We hold that the above
elements must be considered
by the Trial Court in each
such case. It is not neces~-
sary that all of the above
elements be present before
change of venue is mandated
in order to insure fair trial.
Any element set forth above,
or any combination of the
above elements, may be suf-
ficient to make a change of
venue in order to insure that
the Defendant receives a fair
trial.
"If a review of these elements
indicates that the pre-trial
publicity is of such magnitude
so as to make it impossible
for the Defendant to receive a
fair trial in a _ particular
community, then a change of
venue must be_— granted,
irrespective of what is
revealed during the voir dire
of the jurors. Rideau v.
Louisiana; Commonwealth v.
Pierce, 451 Pa. 190, 303 =
209 (1973)." naseet at 74
[emphasis supplied}.
The Pennsylvania guidelines as set forth
above direct the Trial Courts in that State as
to what will or will not be tolerated in terms of
pre-trial publicity. The failure of the Federal
Appellate Court to delineate standards for
reviewing Trial Court determinations allows the
lower Federal Courts broad latitude in deter-
mining whether the publicity creates a
"probability of prejudice." The arbitrary use
of this discretion, lacking adequate guidelines,
deprives a Defendant in a criminal case of the
probability of receiving a fair trial. Aside from
these substantive problems, the lack of
certainty and the ambiguity which necessarily
results from this. situation impose additional
unwarranted and unnecessary burdens on the
attorneys and Courts alike.
The instant case is a clear example of the
situation where the Federal supervisory power
should have been invoked. The facts demanded
that the Trial Court find, prior to the voir dire
of the jury, or at any time during the voir dire
of the jury, that there was a probability of pre-
judice. This conclusion is warranted by the
showing made by the Petitioners prior to trial
as to: (1) the substance and quantity of
prejudicial pre-trial publicity; (2) the opinion
=39e
survey taken in the community; (3) testimony
of the psychologist indicating that the jurors
were potentially prejudiced; and (4) the nature
of the circumstances of this case, which in-
volved publicity concerning these Petitioners in
connection with a State murder charge as well
as the Federal smuggling charges, which could
not be separated in the minds of the jurors.
As the Court of Appeals set forth in its
opinion:
"In the three months preceding
trial, approximately 21 stories
concerning the offenses were
published in the Tallahassee
Democrat, the city's largest
paper...moreover, it was
shown that since the occur-
rence of the offenses, a local
television station had run 120
different news reports linking
the murders and the drug
offen’. During those
newscasts, the word 'murder'
surrounded by a red patch
symbolizing blood was flashed
on the screen. It was esti-
mated that each newscast
reached over 200,000 people."
See, App. C and D; (App.
G); United States v. Capo,
Supra at 1089, n.2,
The publicity of this case was highly
localized in Tallahassee, even though the
murders took place in Panama City, Florida
-40-
(some 100 miles west of Tallahassee). The
publicity was disseminated almost entirely from
Tallahassee. The Tallahassee Democrat, the
largest circulating newspaper, was _ published
there as were all local news broadcasts. On
numerous occasions, Petitioners demonstrated to
the Trial Court that publicity concerning this
case was limited to the northern region of
Florida. No national broadcasts about this case
appeared, nor did the Government present
evidence to the contrary. Therefore, a change
of venue would have readily solved the probable
prejudice incurred by the massive prejudicial
pre-trial publicity.
In the event that the Trial Court is not
persuaded prior to voir dire that the pro-
bability of prejudice exists, the Court should
still be responsible for insuring that the pro-
bability of prejudice does not exist prior to
conducting voir dire of the jury venire.
Sheppard v. Maxwell, 384 U.S. 333 at 361
(1966); Rideau v. Louisiana, 373 U.S. 723
(1963); Irvin v. Dowd, 366 U.S. 717 (1961).
Even the Government appears to have expressed
afileq
a belief prior to completion of the voir dire that
a fair trial was less than probable. Following
the first. day of voir dire in the instant case,
the Assistant United States Attorney expressed
his doubts that an impartial jury could be
selected in this locality. (R.Vol. 6, p. 164).
He expressed that belief in a newspaper inter-
niewe while jury selection was underway.
(R./Vol. 6, p. 164). While the impropriety of
the prosecutor's remarks’ should not _ be
overlooked, the fact remains that substantial
evidence showed pervasive community prejudice.
The resulting probability of unfairness in this
case required suitable procedural safeguards.
The Trial Court should not have continued to
conduct voir dire examinations where Petitioners
had proved this probability of prejudice. See,
App. A, B; Sheppard v. Maxwell, 384 U.S. 333
(1961); Rideau v. Louisiana, 373 U.S. 723
(1963).
Where specific standards are not set for
reviewing a District Court's denial of Defend-
ants' change of venue motion, Appellate Courts
are free to set standards which are onerous.
-42-
See generally, Broeder, Voir Dire Examinations:
An Empirical Study, 38 SO.CAL.L.REV. 503
(1969) at 619, citing State v. Rogers, 241 La.
841, 132 So.2d 819 (1961) [publicity included
Defendant's prior record and confession, most
jurors were friends of deceased and coroner
had been quoted as saying that if there was
going to be any "necktie party", he'd like to be
in it].
In actuality, although this Court has
indicated that only a probability of prejudice
need be shown, Petitioners here are forced to
show actual jury prejudice through voir dire
before the Fifth Circuit and other Circuits will
reverse the discretionary decision of a Trial
Court.
",..[A]ppellate review concen-
trates on the nature and
effect of the pre-trial pub-
licity as revealed during voir
dire. Without some showing on
the record of actual prejudice
from the publicity, most
Appellate Courts refuse to
overrule the decisions of the
Trial Judge. See, e.@2.,
United States v. Agueci, 310
F.2d 817 (2nd Cir. 1962)
[jurors' exposure to reports
of murdered prosecution
witnesses held not to
demonstrate prejudice] ;
~
Sargent v. People, 497 P.2d
983 (1972) [insufficient expo-
sure to prosecution's release
of grisly details}; State v.
Thomas, 94 Idaho 430, 489
P.2d 1310 (1971) [no abuse of
discretion despite extensive
exposure to reports of murder
of popular local policeman]."
38 SO.CAL.L.REV. 503 at
619.
This violates the principles set forth by this
Court.
C. The decision of the Court of
Appeals for the Fifth Circuit
conflicts with findings of
other Circuit and _ District
Courts that refuse to accept
juror assurances of impart-
iality where prejudicial con-
tamination of the jury has
been shown.
ate
In the instant case, Petitioners presented
to the Court substantial evidence of massive
pre-trial publicity. (See, R.Vol. 5, pp. 49,
56; App. C and D [copies of newspaper
articles published in locality]; R.Vol. 6, pp.
33-95; R.Vol. 6, pp. 20-22; App. G [copy of
picture from local newscasts]. The Court
denied Petitioners' Motion for Change of Venue
and proceeded to voir dire the jury as a group.
During that general examination, the Court
-44-
inquired as to whether any juror had been
exposed to pre-trial publicity. Of all the
prospective jurors, only one indicated that he
had some exposure. Petitioners then requested
an individual voir dire of the jury, which was
granted by the Trial Court. During that
examination, the voir dire revealed:
"As a result of media coverage
of the smuggling operation
and the Sinkhole Murders, a
significant percentage of the
prospective jurors, estimated
at ninety (90%) percent by
Appellants, possessed at least
minimal knowledge of the
murders, evidence of which
was obviously inadmissible in
the Federal trial, and the
connection between the slay-
ings and the drug offenses al-
legedly committed by Appel-
lants." United States v.
Capo, 595 F.2d at 1089; App.
A [excerpts from voir dire of
prospective jurors]; App. B
[excerpts and _ citations to
remarks made by _ jurors
eventually empanelled. ]
Moreover, in reviewing this case, the Fifth
Circuit recognized that each juror empanelled
had some actual knowledge of the Sinkhole
Murders, but stated that each had repeatedly
pledged his or her impartiality during the voir
afin
dire examination. As the Circuit Court stated in
its opinion:
"Most of the potential jurors
who were cognizant of the
murders repeatedly professed
to impartiality in that they
had no fixed impression or
opinion as to. guilt or
innocence." United States v.
Capo, 595 F.2d at 1091.
Petitioners, in their Brief to the Fifth Circuit
Court of Appeals, specifically enumerated as
error the Trial Court's reliance on jurors'
assurances of their own ability to remain neutral,
despite the finding that the jurors had in fact
been exposed to prejudicial pre-trial publicity.
(See, Defendants-Appellants LUKEFAHRS' Brief,
pp. 14-18). During oral argument, Petitioners
specifically requested that the Fifth Circuit
adopt the ABA Standards for Fair Trial and
Free Press, §3.4(b). Under that Standard, the
Court should have upheld the Petitioners'
objections for cause to jurors who had
knowledge of highly inflammatory or significant
information without regard to the testimony as
to each juror's state of mind. See, Appellants
LUKEFAHRS! Brief, p. 14.
The Fifth Circuit, in this case, appears to
revert back to older Supreme Court cases which
express great faith in a juror's ability to gauge
his own impartiality. Adams v. United States
ex rel. McCann, 317 U.S. 269, 281 (1942);
Spies v. People of Illinois, 123 U.S. 131.
However, more recent decisions of this Supreme
Court, recognizing the pervasiveness and power
of today's mass communications, conclude that
despite a juror's best good faith efforts to
remain unbiased, it is highly probable that
publicity will have a substantial conscious or
subconscious affect on a juror's judgment and
verdict. Estes v. Texas, 381 U.S. 532, 544
(1965). As pointed out by defense counsel and
documented by expert testimony, the subcon-
scious pairing by jurors of the pre-trial
publicity concerning murder with the crime of
smuggling did in fact bias the jurors despite
their protestations of impartiality.
While it may be beneficial to provide a
method of jury qualification that will promote
the exclusion of prospective jurors infected with
prejudices of the community from which they
~~
come, this protection, as Irwin v.
Dowd, 366
U.S. 717 (1961) shows, is not always adequate
to effectuate the Constitutional guarantee of an
impartial jury. Groppi v. Wisconsin, 400 U.S.
505, 510 (1971). In the case of Rideau ve.
Louisiana, 373 U.S. 723 (1963), this Court held
that only a change of venue was
Constitutionally sufficient to assure the kind of
impartial jury that is guaranteed by the Sixth
Amendment.
Nonetheless, some Circuit Courts of
Appeals continue to affirm Trial Court decisions
where it is clear from the voir dire transcript
that jurors had been exposed to highly pre-
judicial materials through the news media where
those jurors assured the Court that they would
retain their impartiality. See, e.g., United
States v. Hall, 536 F.2d 313, 326 (10th Cir.
1976); United States v. Haldeman, 559 F.2d 31
(D.C. Cir. 1976). See also, ABA STANDARD
RELATING TO FAIR TRIAL AND FREE PRESS,
Commentary, Supra, p. 21 at 126.
The essence of this attitude towards the
jury has long precedent in the United States.
-48-
Adams v. United States ex rel. McCann, 317
U.S. 269, 281 (1942); Spies v. People of State
of Illinois, 123 U.S. 131. Nonetheless, numerous
Courts have taken a more realistic approach to
the problem of juror assurances.
Other Courts have held that whether a
juror can render a verdict based solely on the
evidence adduced in the Courtroom should not
be adjudged on that juror's own assessment
without something more. United States v.
Largo, 346 F.2d 253, 257 (7th Cir. 1965)
(dissenting opinion), cert. den'd. 382 U.S. 904
(1965); and compare Sheppard v. Maxwell,
346 F.2d 707, 751 (6th Cir. 1965) (dissenting
opinion), rev'd. 384 U.S. 333 (1966); Groppi
v. Wisconsin, 400 U.S. 505 (1971).
Once a Trial Court has accepted the jurors'
assurances of their ability to remain impartial,
an undue hardship is placed on a criminal
Defendant. This is particularly true where the
Trial Court failed to affirmatively determine
whether or not the "probability of prejudice"
existed. As the D.C. Circuit Court stated in
United States ve Haldeman, 559 F.2d 31 (D.C.
Cir. 1976):
"Irvin established a ‘common
sense standard' of juror
qualification. United States
v. Caldwell, 543 F.2d 1333,
T346 (D.C. Cir. 1974), cert.
den'd. 23 U.S. 1087 (1976).
In keeping with that approach,
a Defendant who claims he
was denied a fair _ trial
because the jury was _ not
sufficiently '‘indifferent'
generally must sustain that
claim 'not as a matter of
speculation but as a demon-
strable reality.’ U.S. ox ree
Darcy v. Handy, oD
454, 462 (1956). This demon-
stration can be made only by
reference to the voir dire.
In ‘extreme’ circumstances',
however, prejudice to the
Defendant's rights may be
presumed." (Citations omit-
ted). United States ve
Haldeman at 60.
Under Haldeman, once a jury is voir dired
by a Trial Court, the "probability of prejudice"
standard no longer applies. Therefore,
Haldeman indicated that once a jury has been
qualified under the discretion of the Trial Court
Judge, the Defendant must show actual pre-
judice to the jury before he can reverse the
conviction. The D.C. Circuit does make an
exception to this general rule requiring actual
jury prejudice in such instances by saying that
"in extreme cases", prejudice may be presumed.
-50-
The D.C. Circuit does not go on to enumerate
or give an example of what an extreme circum-
Stance might be, and indicates that the pre-
Sumption is not mandatory, but may in fact
once again be discretionary.
The standard of the D.C. Circuit re-
quiring a showing of actual prejudice is in
direct conflict with the principles enumerated
by the Fifth Circuit, as well as those indicated
by the Ninth Circuit. See, United States ve
Williams, 568 F.2d 464 (5th Cir. 1971);
Silverthorne v. United States, 400 F.2d 627
(9th Cir. 1968). Independent appraisals of the
value of voir dire to discover jury prejudice
indicate that as a whole, the process produces
unreliable information. Several of these
evaluations suggest that Appellate Courts
should place less faith in voir dire. As the
authors of the American Bar Association
Standards for Fair Trial and Free Press state:
"It has in many jurisdictions
been common practice for
denial of such a [change of
venue] motion to be sustained
if a jury meeting prevailing
standards could be obtained.
There are...difficulties with
the approach...many existing
-5l-
In
statements of
THE COURT: Uh-huh. Do you recall any-
bodies,
from,
standards of acceptability
tolerate construable knowledge
of the case, and even an
opinion of the merits on the
part of the prospective juror.
And even under a= more
restrictive standard, there
will remain the problem of
obtaining accurate answers on
voir dire - is the juror con-
sciously or subconsciously
harboring prejudice against
the accused resulting from
widespread news coverage in
the community? Thus, if
change of venue and con-
tinuance are to be of value
they should not turn on the
results of the voir _ dire;
rather, they should constitute
independent remedies de-
when news ___ coverage as
raised substantial doubts
about the effectiveness of the
voir dire standin alone.”
ABA STANDARDS, ss ra, p.
21 at 126 (emphasis added).
Cited in United States v.
Haldeman, 559 F.2d 31 (D.C.
Cir. 1976) (dissenting opinion).
highly significant , inflammatory material.
dire are illustrative:
thing about the
where they were
whether they were --
this case, many jurors remembered
The
juror Mary Mercer during voir
MS. MERCER: It was two sisters there.
One was sixteen.
other one I believe
aS Pe
The
was
THE COURT: .
MS. MERCER:
about fourteen. And there
were two young men
involved. One, I believe,
was a married man. They
were from the _ general
Panama City area, some-
where between Tallahassee
and Panama City. And
then recently, the truck
that was apparently owned
by one of those was pulled
up and there was a section,
the camper section, or
something, missing from the
truck. And allegedly, this
is the vehicle that was in-
volved. And I think what I
ot from that was the
Speculation that those
persons may have _ been
witnesses to the unloadin
of the marijuana, and that
the In fact, ma have
been led ae na reson ot
this. And the speculation
1s that there may be some
more things to be un-
covered in the _ future.
Uh-huh. But you relate
that to this case?
I do. And _ I've _ been
Silent ieee d
trying to sort out what the
rect relationship was, 1
there is one, and it seems
that if there was a more
thorough EEE after
~~aiter the odies were
brought up. And _ there
was some kind of link.”
(Emphasis supplied. )
R.Vol. 11, pp. 68-69.
Ms. Mercer was the foreman of the jury which
convicted the Petitioners.
<5 3e
Even where the jurors fail to remember
particulars from pre-trial publicity, they may
form lasting, general opinions and impressions.
One study described at length by Rudolph
Flesch, in his book, The Art of Clear Thinking
(Collier-McMillan), 165-166 (1969), indicated
that while those studied forgot the details of
the film shown to them, its message and the
opinion they had formed increased. Therefore,
as the dissent in United States v. Haldeman,
concluded:
"Thus, the circumstance that
prospective jurors stated they
could not recall particulars
did not negate the strong
possibility that they had
formed and_ retained some
general opinions about what
they had seen and heard."
Id., at 155.
All of this assumed that jurors on voir
dire are attempting in good faith to honestly
report their own impartiality. Despite the
history of this assumption in American juris-
prudence, it has been documented in numerous
situations that "veniremen freqently deceive,
many times consciously." Broeder, Voir Dire
Examinations: An Empirical Study, 38 SO.CAL.
-5 4-
L.REV. 503, 513. From the voir dire here, the
Trial Court in this instance was on notice that
these jurors were hesitant to respond fully and
accurately to the Court when questions were
propounded to the group. See, R.Vol. 16, p.
9.
Moreover, here, after the first day of voir
dire, the Trial Court propounded questions to
the prospective jurors which were calculated to
evoke, or had the effect of evoking, responses
demonstrating impartiality on the part of the
jurors. See, e.g., R.Vol. 9, pp. 71-75; Vol.
ll, pp. 70-71. The Court's questions became
leading and highly suggestive. Moreover, the
Court frequently suggested the answer to the
juror prior to asking the question. One example
is the following exchange during voir dire:
THE COURT: If someone were to ask
you that you believed the
crimes charged here in this
indictment have now been
committed, your answer
would be what?
MS.
OVERSTREET: I really don't know.
THE COURT: Your answer would be no?
MS.
OVERSTREET: No, they haven't.
THE COURT: Yes, it maybe was not a
fair question.
MS.
OVERSTREET: Yeah.
THE COURT: Because the burden is on
the government to. prove
that the crimes were com-
mitted and these defendants
committed them.
MS.
OVERSTREET: Right.
THE COURT: All right. All right.
MS.
OVERSTREET: Uh-huh.
THE COURT: Any problem?
MS.
OVERSTREET: No.
(R.Vol. 9, pp. 75-76).
As was set forth in the dissenting opinion
in Haldeman, a juror's natural inclination would
be to deny opinions after the Court has sug-
gested that those opinions are contrary to those
of the Court or contrary to the law. The
Court, in asking certain questions, appeared to
be "merely going through the form of obtaining
jurors' assurances of impartiality", and this is
"insufficient [to test that impartiality]." United
oBie
States ex rel. Bloeth v. Denno, 313 F.2d 364,
372 (2nd Cir. 1963), cert. denied 372 U.S. 978
(1963).
The facts in the instant case are analagous
to the facts set forth in the leading case of
Silverthorne v. United States, 400 F.2d 627
(9th Cir. 1968). In that case, each and every
juror had heard something about the Appellant's
case. Despite jurors' assurances of impart-
iality, the Court quoted from Irvin v. Dowd in
reversing the lower Court decision:
"No doubt each juror’ was
sincere when he said that he
would be fair and impar-
tial...but the psychological
impact requiring such a
declaration before one's
fellows is often its father."
Silverthorne v. United States,
400 F.2d 627 (9th Cir. 1968).
While our system of justice is based on the
integrity of the jurors, it would be reckless to
disregard the realities cf present day media
contamination of prospective jurors. Despite
the integrity of individual jurors, and their own
belief and confidence in their ability to be im-
partial, substantial evidence exists which points
to the undeniable conclusion that jurors are
afte
frequently subconsciously or consciously pre-
judiced by pre-trial publicity. Broeder, Voir
Dire Examinations: An Empirical Study, 38 SO.
CAL.L.REV. 503 (1969). In addition, many
jurors exposed to pre-trial publicity consciously
desire to remain on jury panels despite their
possible prejudice, due to their interest in the
case as excited by pre-trial publicity. A
juror's enthusiasm for fulfilling his obligations
as a citizen in serving on a jury is certainly
commendable; however, where the juror is
motivated by factors which may very well impair
his ability to remain impartial, the Court must
insure that such a biased juror not impinge on
a Defendant's right to an impartial trial.
Some limitations must be placed on the
discretion of the Trial Court to accept the
assurances of prospective jurors of their own
impartiality. Not in all cases or under all
circumstances, but this duty must extend at
least to those situations in which there has
been a showing of pervasive pre-trial publicity.
-58-
Despite all good intentions, a juror is not
always the best judge of himself. Estes v.
Texas, 381 U.S. 532, 544 (1965).
II. The decision of the Court of
Appeals for the Fifth Circuit
holding that the Trial Court's
general voir dire of the jury
regarding their exposure to
inherently prejudicial mid-trial
publicity, when combined with
the Court's instructions,
conflicts with decisions of
other Circuit Courts.
During the course of the trial, the
Tallahassee Democrat, the largest circulation
newspaper in the Tallahassee area, featured a
front page headline reading, "CONVICTS LIVED
IT UP HERE - = WHILE THEY COULD", with
the sub-headline, "Witness Recounts Threat on
Life". (App. E). Defense counsel offered a
copy of this article in open Court, out of the
hearing of the jury, and requested that the
Judge conduct a voir dire of each juror indi-
vidually in reference to their exposure to the
article and headline. (R.Vol. 16, pp. 5, 9).
In making his request, counsel described the
contents of the article, which were inherently
-59-
prejudicial. (R.Vol. 16, p. 9; App. E). The
Court refused to individually voir dire the
jurors, and merely conducted a_ general
questioning of the jury as a group. (R.Vol.
16, p. 8).
On appeal, the Defendants, citing among
other cases United States v. Herring, argued
for the adoption of American Bar Association
Standards for Fair Trial and Free Press §3.5(f)
(1968). United States v. Herring, 568 F.2d
1099 (5th Cir. 1978); Defendants LUKEFAHRS'
Brief, pp. 27-32. The Fifth Circuit Court of
Appeals, in Herring, Supra, had approved the
procedure recommended by the American Bar
Association for dealing with publicity which
occurs during the trial. As the Court of
Appeals recognized in this case,
"Where material disseminated
during the trial 'goes beyond
the record' of the trial and
'raises serious questions of
possible prejudice', the Trial
Court is to inquire of each
juror about his or her pos-
sible exposure to the material
out of the presence of other
jurors." Herring, 568 F.2d at
1104; cited in United States
v. Capo, 595 F.2d 1086, 1093
i975)
-60-
In the Herring decision, and under the
ABA Standard, a two-step determination must
be made by the Court prior to individual exam-
ination of the jurors. The Court must first
decide whether the matter goes beyond the
record and is seriously prejudicial in content.
Second, the Trial Judge is to determine the
likelihood that the material reached the jury.
Both Courts below recognized that the
publicity went beyond the record and was
inherently prejudicial in content. United States
v. Capo, 595 F.2d at 1089. See also, United
States v. Lord, 565 F.2d 831, n.7 (2nd Cir.
1977); Marshall v. United States, 360 U.S. 310
(1959); Murphy v. Florida, 421 U.S. 794, 798
(1975).
However, in reviewing the Trial Court's
determination of the second step of the ABA
test, whether or not it was likely that the jury
was exposed to the prejudicial material, the
Fifth Circuit Court of Appeals erred. The
Court was aware of the prominence of the
headline in the Tallahassee Democrat, and of
the inherently prejudicial nature of the article.
Moreover, the Court recognized that at least six
jurors had daily subscriptions to the newspaper
and four other members purchased it on a
regular basis. United States v. Capo, at 5195,
n.2; App. F. The jurors were not
sequestered, and because most received copies
of the Tallahassee Democrat in their homes, and
since the above-referenced article was a
front-page story, it can only be assumed that
the Court rested its entire determination as to
the second phase of the test on the Trial
Court's instructions to the jury. The Fifth
Circuit states, in United States ve Capo, at
1093:
",,.the Trial Judge reasoned
that he had instructed the
jury not to read anything
about the trial, they had
followed these’ instructions
and if they had read the
article, a collective inquiry
would reveal it. This mani-
fested the Court's belief that
the material had not been dis-
seminated to the jury, a
conviction that was confirmed
by the jurors' negative
responses to the Court's
questions."
abte
Neen eee erence eee ee ee
By so concluding, the Fifth Circuit has
deviated from other Circuits in several ways.
First, the Fifth Circuit ignores the reality,
which has been accepted by other Circuits, that
jurors frequently breach Courts' instructions.
Second, where the Trial Court has been pre-
viously put on notice that jurors had failed to
respond properly or completely truthfully to
questioning as a group, the Court continues to
affirm this type of generalized inquiry.
Finally, the Fifth Circuit has accepted nothing
more than a general questioning of the jury,
where this manner of questioning has been held
inadequate by other Circuit Courts.
While the Fifth Circuit affirms in this case
on the grounds that the Trial Court acted
properly in basing its failure to individually
voir dire the jury on its belief that the jurors
would follow directions, such idealism was un-
warranted in this case. It is obvious from the
record of the case that jurors had failed to
observe the Court's instructions. For example,
during voir dire, several prospective jurors
a
admitted breaches of the Trial Court's in-
structions that they not read, or discuss this
case, and that they not listen to discussions of
the case outside the Court. (R. Vol. ll, p.
68; Vol. 10, p. 365.) On another occasion, one
juror described a prohibited conversation with
another juror, and _ stated in explanation,
"people do talk no matter what you tell them to
do." (R. Vol. 10, p. 46.) Moreover, even if
these jurors had attempted to follow the Court's
instructions not to read, hear or discuss "this
case", the jurors could have misinterpreted the
instruction, concluding that it limited only their
reading in regard to the Federal smuggling case
while continuing to view publicity concerning
the State murder case. This continued to
prejudice the Petitioners where prejudicial
materials about them were broadcast on either
the State or Federal cases. See, Defendants
LUKEFAHRS' Brief, pp. 33-36 [analysis of
various interpretations of Court's instructions].
Moreover, other Circuits have taken the
more realistic approach that Courts cannot close
their eyes to the realities that jurors may be
abte
tempted by prominently displayed prejudicial
publicity. Petitioners do not argue that all
jurors in all Federal cases must be sequestered;
the relief they seek is much more limited. It is
most important that this Court set guidelines to
be followed by Federal District Courts when
confronted with the problem of actual publica-
tion or broadcast of prejudicial information
concerning an on-going criminal trial. See,
United States v. Lord, 565 F.2d 831, 838 (2nd
Cir. 1977), citing, ABA Project on Minimum
Standards for Criminal Justice, Fair Trial and
Free Press §3.5(f).
The conflict between Circuits willing to
recognize the realities of mass news media and
juror disobedience of instructions, and those
which maintain the concept of jurors' ability to
recognize and then totally disregard prejudicial
publicity, are apparent in several cases. For
example, the Second Circuit, taking the more
realistic approach, is illustrative:
"In our view, the _ District
Court erred in relying solely
on repetitive admonitions to
the members of the jury to
avoid news coverage of the
ah Sea
trial...the widespread avail-
ability of newspapers as well
as the prominent position
occupied by the article
created a_ strong possibility
that some jurors might have
been exposed to the irrele-
vant and prejudicial matter in
the publicity.
"Under such circumstances, it
is not enough to assume that
jurors will faithfully observe
general cautionary in-
structions, in view of some
experience to the contrary.
See, e.g., Silverthorne v.
United States, 400 F.2d 627
(9th Cir. 1968) [juror ignored
instructions and kept col-
lection of newspaper clippings
pertaining to trial]." United
States v. Lord, 565 F.2d 831,
838-9 (2nd Cir. 1977).
However, other Circuits have implicitly
recognized that jurors fail to follow the Courts'
instructions. See, e.g., United States v.
Concepcion Cueto, 515 F.2d 160 (1st Cir. 1975)
[jurors deliberating on case were exposed to
publicity, despite Trial Court's instructions that
they not read about the case. Court of Ap-
peals notes that even in camera individual voir
dire was conflicting. |] United States v.
Titsworth, 422 F.Supp. 587 (D.C. Neb. 1976)
[some jurors admitted hearing newscasts, or
being told of newscasts].
Despite our long-held belief that jurors
In direct contrast to this, was a statement ;
will follow Courts' instructions, the temptation
made recently by the Ninth Circuit Court of é ae
of viewing massive mid-trial publicity may be
Appeals. Therein, the Ninth Circuit stated:
"The Supreme Court has said
that our whole jury system is
based upon the recognizability
of the juror’ to _ follow
instructions. Opper ve
United States, 348 U.S. 84,
95, 75 §.Ct. 158 (1954).
Moreover, we are required to
assume that the jury followed
instructions. United States
v. Strand, 574 F.2d 993, 996
(th Cir. 1978)." (Further
citations omitted.) United
States v. Brady, 579 F.2d
1121, 1127 (9th Cir. 1978).
too great for many jurors. "The jury is an
essential instrumentality - an appendage - of
the Court, the body ordained to pass upon
guilt or innocence." Sinclair v. United States,
279 U.S. 749, 765. Nonetheless, as Mr. Justice
Holmes stated,
"Any Judge who has sat with
juries knows that, in spite of
forms they are extremely
likely to be impregnated by
the environmenting atmo-
sphere." Frank v. Mangum,
nh Jo
237 U.S. 309, 349 (dissenting
opinion). See, Turner v.
Louisiana, 379 U.S. 466,
471-72 (1965).
There may well be examples in each and
every Circuit of jurors who fail to observe the
Court's instructions not to read, listen or in
any way be subject to the influence of pre-
judicial publicity during the trial. Where
publicity, as in this case, is inherently preju-
dicial, and evidence such as that presented by
the Petitioners that jurors may well have been
exposed to it, the Federal supervisory re-
quirements that District Courts avoid even "the
probability of prejudice" requires an in-depth,
individual voir dire of the jurors to determine
their exposure to the publicity.
Petitioners allege that only an individual
voir dire of the jurors out of each other's
presence can adequately preserve an accused's
right to a fair and impartial jury. As stated
by these Petitioners in the Trial Court below,
this jury had failed to respond truthfully
during pre-trial voir dire when inquired as a
group concerning their exposure to prejudicial
pre-trial publicity.
See, Appellants' Brief, pp. 27-28; R. Vol. 16,
p. 9, App. B.
During the trial, Petitioners requested
questioning of the jury regarding the prejudi-
cial publicity. Despite counsel's request for
individual voir dire, the jurors, as a group,
were first reminded of the instructions given to
them by the Court on the preceding Friday to
avoid reading, listening or hearing anything
about this trial. (R.Vol. 16, p. 15.) The
Trial Court then asked the jurors collectively
whether they had read anything about the trial,
or seen any headlines about it. (R. Vol. 16,
pp. 15-16.) The Court's initial admonition put
the jurors on notice that if they stated that
they had read anything, they had also violated
the Court's instructions. Not surprisingly,
then, no juror stated that he had read the
article or headline. The Court obviously
viewed the failure of any juror to affirmatively
state that he had been subjected to the article
a negative response. Nonetheless, other Courts
have found that:
-69-
"The fact that they [jurors]
did not respond to the
Court's general inquiries did
not establish that the pub-
licity ‘could not have pre-
judiced any member of the
jury’." Henslee v. United
States, 246 F.2d at 193 (5th
Cir. 1957), cited in
Silverthorne v. United States,
400 F.2d 627, 640 (1968).
Many jurisdictions recognize that preju-
dicial during-trial publicity can be far more
harmful to the rights of fair trial of a criminal
defendant than is prejudicial pre-trial publicity.
See, e.g., Sheppard v. Maxwell, 384 U.S. 333
(1966); Marshall v. United States, 360 U.S.
310 (1959); United States v. Chapin, 515 F.2d
at 1287, n.12. Thus, where the harm to the
criminal Defendant exists from the potentiality
of prejudicial mid-trial publicity, stringent
standards must be set by this Court, either
through the exercise of its supervisory powers
or in determining the minimum _ standards
required under due process, to insure that
jurors have not been exposed to this type of
publicity.
Some Circuits, such as the Fifth Circuit in
deciding this case, have held that a general
=70~
questioning of the jury is sufficient to meet due
process requirements. See, United States v.
Capo, 595 F.2d 1086 (5th Cir. 1979). However,
even within the Fifth Circuit, the procedural
requirements have not been uniform. For
example, the Fifth Circuit recently reversed the
conviction in United States v. Herring, 568
F.2d 1099 (5th Cir. 1978) because the Trial
Court had failed to individually and out of the
presence of each other voir dire the jury.
In United States v. Akin, 562 F.2d 459
(7th Cir. 1977), the Seventh Circuit suggested
that the Circuits are divided as to the pro-
cedure to be followed when possible prejudice
from publicity arises during the course of a
trial. United States v. Akin, at 468. As that
Court held:
"Our Circuit has consistently required
the following procedure as set forth in
Margolis v. United States, 407 F.2d
727, 735 (7th Cir. 1969), cert. den'd.
396 U.S. 833, 90 S.Ct. 69:
'Thus, the procedure re-
quired by this Circuit where
prejudicial publicity is
brought to the Court's at-
tention during the trial is
that the Court must ascer-
tain if any jurors who had
been exposed to such pub-
licity had read or heard the
same. Such jurors who res-~-
pond affirmatively must then
be examined, individually
and outside the presence of
other jurors to determine the
effect of the publicity.
However, if no juror indi-
cates, upon inquiry made to
the jury collectively, that he
has read or heard any of the
publicity in question, the
Judge is not required to
proceed further.'"
The Seventh Circuit Court suggests that
the same approach has been adopted by the
First Circuit in United States ve Perrotta, 553
F.2d 247 (lst Cir. 1977), and by the Fourth
Circuit in United States v. Hankish, 502 F.2d
71 (4th Cir. 1974). Other Courts have con-
cluded that each juror should be questioned
separately out of the presence of the other
jurors. United States v. Polizzi, 500 F.2d 856
(9th Cir. 1974), cert. denied, 419 U.S. 1120
(1975); Silverthorne v. United States, 400
F.2d 627 (9th Cir. 1968), cert. denied, 400
U.S. 1022 (1971); United States v. Schrimsher,
493 F.2d 848 (5th Cir. 1974); Mares v.
United States, 383 F.2d 805 (10th Cir. 1967),
=F2~
cert. denied, 394 U.S. 963 (1969); Coppedge
v. United States, 272 F.2d 504 (D.C. Cir.
1959), cert. denied, 368 U.S. 855 (1961).
This approach has found additional support
and recognition by the American Bar Association
in its Standards, Fair Trial and Free Press
§3.5(f), which provides:
"(f) Questioning jurors about
exposure to potentially pre-
judicial material in the course
of a trial; standard for
excusing a juror.
"If it is determined that the
material disseminated during
the trial goes beyond the
record on which the case is
to be submitted to the jury
and raises serious questions
of possible prejudice, the
Court may on its own motion
or shall on motion of either
party question each juror,
out of the presence of the
others, about his exposure to
that material. The exami-
nation shall take place in the
presence of counsel, and an
accurate record of examination
shall be kept."
Although some Circuit Courts have con-
cluded that this standard is too restrictive
(see, United States v. Hankish, 502 F.2d at
77), it has been adopted by other Circuits.
at 2e
See, e.g., United States v. Herring 568 F.2d
1099 (5th Cir. 1978); cf., United States v.
Capo, supra.
A leading case concerning prejudicial
mid-trial publicity is Silverthorne v. United
States, 400 F.2d 627 (9th Cir. 1968). In that
case, an extremely prejudicial article was pub-
lished during the trial. The Trial Judge, in
referring to the article and the possible expo-
sure of the jurors to its contents, summarized
the attitude of numerous District Court Judges:
"Well, how are you ever going
to prevent those things, in
any event, I don't justify
them at all. I think it is
outrageous, but in a sense, it
is outrageous even if there
was no trial...how would you
ever, in any jury, avoid that
kind of thing [prejudicial
mid-trial publicity] ?"
The Ninth Circuit held that the Judge should
have questioned the jury, in camera, as re-
quested by defense counsel. Moreover, the
Court found that the "probability of prejudice"
arose and was not eliminated by the Trial
Court. Citing, Sheppard v. Maxwell, 384 U.S.
at 357 (1966), and Estes v. Texas, 381 U.S.
532 (1965).
A Trial Judge should not be allowed to
evade his responsibility and obligation to insure
that every criminal Defendant receives a fair
trial because of the perceived or presumed
inevitability of prejudicial publicity. As the
Ninth Circuit stated in Silverthorne v. United
States, 400 F.2d 627 (9th Cir. 1968):
"Despite the inability of the
trial Judge to prevent news-
papers or other news media
from being brought to the
attention of a non-sequestered
jury alleging evidence of
_ misconduct. of the Defendant
not offered against him at the
trial, the Trial Court cannot
assume that all is well, or
that there is nothing he can
do. He is required to as-
sume, until he has established
otherwise by voir dire exam-
ination, ‘that some of this
material reached the members
of the jury.' Sheppard v.
Maxwell, supra, eS. “at
357, 86 S.Ct. at 1519, citing
Commonwealth v. Crehan, 345
Mass. 609, 188 N.E.2d 923
(1963)." Id. at 644.
The decision of the Fifth Circuit requiring
that Petitioners show more than: (1) the in-
herently prejudicial nature of a prominently
displayed news article; (2) the availability of
those materials to the jury; and (3) the un-
reliability of juror responses when voir dired as
a group, has created a burden of proof or. a
criminal Defendant that is both procedurally
wrong and virtually impossible to meet. The
requirement that Petitioners prove actual jury
prejudice by mid-trial publicity contradicts the
holding of the United States Supreme Court in
Sheppard v. Maxwell, 384 U.S. 333 (1966).
The holding in that case emphasizes that the
Courts must assure and protect Defendants from
jurors exposed to _ prejudicial during-trial
publicity. See contra, United States v.
Agueci, 310 F.2d 817 (2nd Cir. 1962).
Because of the substantial threat of pre-
judice to a criminal Defendant, this Court
should direct the District Courts as to what
procedure they must follow once Defendants
have shown that substantially prejudicial mid-
trial publicity has been published, and that an
unsequestered jury may have been exposed to
it. See, Appendix E, F. The Circuit Courts
have not agreed on a standard, nor is there
consistency within the Fifth Circuit as to the
standard which must be followed by a Trial
-76-
/
:
’
.
OL aaa... i=
Court. The Supreme Court, either under its
Supervisory powers or under due process
analysis, should, therefore, establish standards
governing the procedure for the Trial Courts to
follow when faced with the dilemma of pre-
judicial mid-trial publicity.
III. The decision of the Court of
Appeals for the Fifth Circuit
holding that comments’ on
Petitioners' post-arrest silence
were not violatative of their
right to remain silent when
read in the context of the
argument in its entirety con-
flicts with case precedent of
this Court and other Circuit
Courts.
In Petitioners' Brief to the Fifth Circuit, it
was argued that the prosecutor's closing argu-
ment contained prohibited and prejudicial com-
ments on the failure of some of the Defendants
to testify. See, LUKEFAHRS' Brief, pp. 42-45.
The Court, in rejecting this contention, opined
that the objectionable argument did not refer to
the Petitioners' "silence at trial, nor that the
Jury construed the remarks to have this
meaning." (emphasis supplied by the Court's
>
italics). United States v. Capo, 595 F.2d 1086
at 1095 (5th Cir. 1979). The Court further
stated that the prosecutor's comments yvere
intended to be a reference to the refusal! of the
Petitioners to cooperate with law enforcement
officials rather than a comment on their failure
to testify:
"A reading of the closing
argument in its entirety,
however, reveals that the
statement was merely part of
the prosecutor's rebuttal
argument that the defendants
had the opportunity to co-
operate with law enforcement
officials after their arrest,
but declined to do_ so."
(emphasis supplied) United
States v. Capo, Id. at 1094.
This interpretation of the facts differed
not only with the Petitioners', but also with
that of the Government. The Government
argued in its Brief that the comments were
made to show that none of the Petitioners
declined to participate in the crime "...during
the period in which they were supposedly being
entrapped...." (Government's Brief, p. 32.)
These Petitioners never alleged an entrapment
defense. See, e.g., S.R.Vol. 3, p. 14.
Thus, there have been three different
interpretations of the prosecutor's argument:
The Petitioners', the Government's, and the
Fifth Circuit's.
Both the Petitioners and the Court of
Appeals concur that the remark of the prose-
cutor, which was coupled with a gesture toward
the Defendants-Petitioners, referred to their
failure to take the stand or facilitate law en-
forcement. As the Court stated:
"Viewed in its naked form
apart from the remainder of
the closing argument, the
prosecutor's statement, when
combined with his gesture,
appears perhaps to be a
remark on defendants! failure
to take the stand." United
States v. Capo, 595 F.2d at
1094,
While rejecting the Petitioners' contention,
the Fifth Circuit demonstrated that the argu-
ment of the prosecutor was improper and consti-
tutes reversible error, in a manner not contem-
plated by the Petitioners or the Government.
Under either theory, this Court should find
reversible error.
If the comments were, as the Fifth Circuit
Court has ruled, a reference to the failure of
the Petitioners to cooperate with the law en-
forcement officials after their arrest, then the
judgment and sentence should be reversed. A
comment on the failure of the accused to co-
operate following his arrest is tantamount to a
comment on this post-arrest silence, which is
forbidden. Doyle v. Ohio, 426 U.S. 610
(1976).
In Doyle v. Ohio, 426 U.S. 610 (1976), a
State prosecutor used the Defendant's pretrial
silence to impeach his trial testimony, the
Government's contention being that if the
Defendant's trial testimony were true, he surely
would have explained his innocence to the police
at the time of his arrest. The Supreme Court
ruled that the Defendant's silence could not be
used for impeachment purposes. This ruling in
Doyle was an expansion of the Court's previous
holdings thaf the post~arrest silence of the
accused could neither be commented upon by
the prosecutor, mor the - subject of a
presumptive instruction by the Court. See,
-80-
Griffin v. California, 380 U.S. 609 (1965),
rehearing denied, 381 U.S. 957 (1965); United
States v. Hale, 422 U.S. 171 (1975).
The decision of the Fifth Circuit that the
prosecutor's statement was a comment on the
post-arrest silence of the Petitioners raises an
issue of Constitutional importance. The Peti-
tioners continue to argue that where the remark
is susceptible to interpretation by the jury as a
comment on Petitioners' failure to testify, it
must be reversible error. Griffin v. California,
380 U.S. 609 (1965); Wilson v. United States,
149 U.S. 60 (1893); United States v. White,
444 F.2d 1274 (5th Cir. 1971), cert. denied,
344 U.S. 949 (1971).
Therefore, the Fifth Circuit holding that
the prosecutor's comment does not infringe on
the Petitioners' Fifth Amendment rights is
error. Whether read in light of the entire
closing argument or aS a separate unit, a
remark concerning Petitioners' failure to testify
at trial, or one that suggests their refusal to
help law enforcement officers, is a violation of
Petitioners' rights to remain silent. The Fifth
-8]-
Circuit analysis provides dangerous precedent
and creates an erosion of Fifth Amendment
rights.
CONCLUSION
Petitioners pray that the Petition for Writ
of Certiorari be granted to review the judgment
and opinion of the Fifth Circuit Court of
Appeals.
Respectfully submitted,
LAW OFFICES OF ED
By: raw F- eo
~ Diane E. Marger
-82-
APPENDIX A
The following is the list of pros-
pective jurors in this case with excerpts
from and citations to their remarks dur-
ing voir dire concerning their knowledge
of publicity surrounding this case and/or
the State murder case involving these
Defendants:
PROSPECTIVE JURORS
Sapp: Knew a little, S.R. Vol. 3,
>. i337
Three people died because of
it, GR. Vol. 2p Be aoe
Tallahassee Democrat (heard
opinions), S.R. Vol. 3, p. 139
Revel: Read in Democrat - Sandy Creek
S.R. Vol. 3, p. 163
Sinkhole lead to murders, S.R.
Vol. 3, pe 263
Suggested voir dire, truck
lifted out of sinkhole, S.R.
Vol. 3, p. 163
Kling: Read concerning sinkhole
murders and pot smuggling in
Democrat - sinkhole trigger?
SR. Ved. 2. BD. 279
Jackson: Sinkhole, them recovering
bodies, S.R. Vol. 3, p. 216
A-A-1
Thurmond:
Mack:
Cato:
Barrow:
Young:
Judge asked for connection;
response is no, S.R. Vol. 3,
217
Sandy Creek - murders, S.R.
Vol. 4, Bp. 27
Read newSpaper accounts, S.R.
Vol. 4, Be. 247
Deaths in Sandy Creek, S.R.
Vol. 4, pe ae
Points out influence of
Judge's wording, S.R. Vol. 4,
p. 40
Know...just that it happened,
S.R. Vol. 4, p. 43
Trigger connection between
ciarge and read? Yes. S.R.
You. 4, Os. 47
Some bodies were found - sink-
hole, S.R. Vol. 4, p. 49
Knows they're from Panama City,
S.R. Vol. 4, p. 64
Men and women, S.R. Vol. 4,
p. 65
Just said it was going to be
the sinkhole, that's the murder
one, isn't it? S.R. Vol. 4,
p. 74
Contact with area law enforce-
ment, S.R. Vol. 4, p. 82
Feels crime has been committed,
S.R. Vol. 4, p. 86
When you read the charge,
A-A-2
Bass:
Bradwell:
associated it with something
I had read, I guess, really, I
probably did, I think we all
read something, S.R. Vol. 4,
p. 95
Sandy Creek, S.R. Vol. 4, p.
97
Says he thoroughly reads paper,
S.R. Vol. 4, p. 102
There must have been a crime
somewhere committed, S.R. Vol.
S$, w. iG2
Mention of Bobby Vines re-
minded of press, S.R. Vol. 4,
p. ilz
Drug charges related to
murders, S.R. Vol. 4, p. 112
Crime has been committed, S.R.
Vol. 4, p. i115
But on crime, see S.R. Vol. 4,
op. iLi?, 130
Any testimony must carry far
greater weight, S.R. Vol. 4,
Dp. £32
Possibly read about it, S.R.
Voi. 4, p. 14]
Vines, S.R. Vol. 4, p. 142
Sandy Creek - murder, S.R. Vol.
4, p. 144
Associates murders and charges,
S.R. Vol. 4, p. 145
Holifield:Had read a little about it in
paper, S.R. Vol. 4, p. 170
A-A-3
Crowley:
Rivers:
Kasten:
Sinkhole murder case, S.R.
VOL.) 4, Be AER, 177
Something on T.V., S.R. Vol.
Walborsky:
4, p. 173
Juror next to me said there
have been newspaper accounts,
S.R. Vol. 4, p. 194
Sinkholes - smuggling and
murder, S.R. Vol. 4, p. 198
Speculate it might be same
case, S.R. Vol. 4, p. 198
"Assuming" sinkhole/murders
are this case, S.R. Vol. 4,
o.- 2i7
ne Hodges:
Assume it is the same case -
Sink deal, bodies were - Bobby
Vines, S.R. Vol. 4, p. 225
One dead was 14 - close to age
of daughter, S.R. Vol. 4, p.
229
I'm sure the crime has been
committed, S.R. Vol. 4, p. 242
Some evidence or no indictment,
S.R. Vol. 4, p. 242 Wilson:
Sinkhole incident, truck being
pulled out, S.R. Vol. 4, p. 264 \
Relates to the Perry Murders,
S.R. Vol. 4, p. 267
Subscribes to Tallahassee
Democrat, S.R. Vol. 4, p. 273
Sees Perry murders every time
Channel 6 goes on, S.R. Vol. 4,
Dp. 276
A-A-4
Sandy Creek - in connection
with murder, sinkhole bust,
S.R. Vol. 4, p. 286
Do names Sandy Creek/sink-
holes invoke any response?
I think of murder. R. Vol. 7,
D>. Sa
Would trigger response again,
R. Vel. Fe Be Se
Conjectured the connection
between sinkhole and this
case and bases this on news-
paper, R. Vol. 7, p. 77
It might affect his judgment,
RnR. Voi. 7, pi 78
You mentioned marijuana, I
don't know if murder is
connected R. Vol. 7, p. 100
Sinkhole, R. Vol. 7, p. 101
Sandy Creek means pot smuggling
- the girls, R. Vol. 7, p. 101
Unless I just believe every-
thing like, in the papers,
R.. Vela Fe Be ee
Accounts in newspaper of sink-
hole incident (no prior mention
of sinkhole by Judge) R. Vol.
Te Be 134
Mostly heard about murder as-
pect of it, R. Vol. 7, p. 134
Sandy Creek would elicit
response, R. Vol. 7, p. 147,
148
A-A-5
Kinch:
Golden:
Tavlor:
Christie:
Myers:
McNeil:
Lucas:
Question - would that informa-
tion make you unfair or partial?
R. Vol. 7, p. 150
Murders at sinkhole, R. Vol. 7,
p. 180
Water hole - something like
some bodies found in it or
something, R. Vol. 8, p. 34
I had read about case in papers,
well I read about finding the
bodies down there, R. Vol. 8,
p. 74
Sandy Creek - some smuggling
operation, R. Vol. 8, p. 79
Water hole, ship's hold, etc.,
R. Vol. 8, p. 82
Bodies found there, 2 men, 2
women, R. Vol. 8, p. 81
Did you know about case? Not
at first. R. Vol. 8, p. 95
Read about when they found the
people and got truck, R. Vol.
8, p. 109
Specific ‘facts, R. Vol. 8, p.
109
No knowledge, R. Vol. 8, p. 126
Worries a lot about her drug
biases, R. Vol. 8, p. 123-125
Bias versus pot, R. Vol. 8, p.
167
Subscribes to Tallahassee Demo-
crat, R. Vol. 8, p. 157
A-A-6
Alagood:
Didn't hear of case, R. Vol. 8,
Ss hee
Sinkhole - bodies out of there,
R. Vol. 8, p. 180
Relates sinkhole and Sandy
Creek, R. Vol. 8, p. 181
Caused from drug operation,
R. VOl.-8, Bs L8i
Casisseaux: Sinkhole down in Sandy Creek,
West:
Brim:
Miller:
R. Vol. 8, p. 218
Only related it to truck, R.
Vol. 8, p. 220
Names - I connected that imme-
diately, then, with the
publicity, R. Vol. 8, p. 229
Bodies started showing up in
Sinkhole, R. Vol. 8, p. 230
Cultural bias, I'm afraid, R.
Wel. 8, @. 233
Followed "story" regularly, R.
Vol. 8, p. 244
Thinks crime was committed, R.
VOL.’ Be Bi 2a
Knew "Billy's" father very
well, R. Vol. 8, p. 251
Guessed case, from paper, R.
Voi. Fe DO. 45.5
Sinkhole/four bodies, R. Vol.
3, po. 6
This part tried here, the other
part in Pensacola, R. Vol.
a. pe. 6
A-A-7
Johnson:
Two men/two women, one young -
on murders, R. Vol. 9, p. 16
Connection from paper, R. Vol.
9, p. 18
Had idea of case - from paper,
R. Vol. 9s Bs 37
I've heard about case in news-
paper, R. Vol. 9, p. 38
Sandy Creek/sinkhole - rings a
bell, yes - marijuana smuggling
from Sandy Creek and sinkhole
murders, R. Vol. 9, p. 39
Believes crimes have been
committed, R. Vol. 9, p. 54
(later changes - see argument,
p. 62)
Overstreet:Drug case/tied in with those
Parramore:
Sinkhole murders, R. Vol. 9,
p>. va
Longer I have been here, the
more I'm convinced, R. Vol. 9,
S. 2
On crime been committed - yes.
I should say no. R. Vol. 9,
p. 87-88
Young girls, boys, R. Vol. 9,
p. 89
Sinkhole case/murders - Ques-
tions asked by people I work
with, R. Wod. 3895 OF
Two men/two women, young and
from Bay area, R. Vol. 10, p.
11
A-A-8
Newhall:
Woods:
Woody:
Johnson:
Fontana:
Tells story from papers, R.
Vol. 10, p. 27-28
People found in sinkhole, pot
- I heard more out there
Waiting than ever before, R.
Vol. 10, p. 37
Listened to accounts of sink-
hole murders, but didn't know
it was separate from the pot
case R. Vol. 10, p. 78, 82
Camper truck, R. Vol. 10, p.
98-102
Know nothing about case -
doesn't really read (unable
op ma wens. 20, p. 155, 156
You know, what's been on the
news, R. Vol. 10, p. 177
Sinkhole - finding bodies -
just what was in the paper,
ms Woa. 10, p. 182
Girls and ages and pick-up, R.
Vol. 20, p. i183
Knew case before Court, R. Vol.
i0,; p. 208
Read prior articles, R. Vol.
10, p. 209
Doesn't relate sinkhole to this
case, R. Vol. 10, p. 214
Hillensbeck:Knew of case from paper, R.
Yo... 10, p. 254
Sandy Creek rings a bell -
that's where it happened -
title where people were
A-A-9
sesadl deter Hensen:
Four people, R. Vol. 10, p.
272
Chason: You think case relates to paper?
Yes, sinkhole murders, R. Vol.
LO, ps 220
Group of pictures - Doesn't
know how she made connection,
just did, R. Vol. 10, p. 113
Association with Bobby Vines
and something she read, R. Vol. t
10, p. 116 S2om:
Sandy Creek rings bell from
reading newSpapers, R. Vol. 10,
S. idg2
Two men/two women, R. Vol. 10,
p>. 123
Probably walked upon some dope
smuggling operation - Assume
people they walked upon killed a
them, R. Vol. 10, p. 123 —"
Tinkler: Did you know case you'd be on?
Naturally, yes. R. Vol. 10,
p. 144
Read all articles in paper, R.
Vol. 10, p. 147
Hillensbeck:My age, R. Vol. 10, p. 273 Pinta
murdered, R. Vol. 10, p. 261
Stumbled upon the drugs, R.
Vol. 10, p. 262
Truck found in water, R. Vol.
Just know about truck, R. Vol.
iG, Bi. are
A-A-10
Husband's been keeping up with
at, BR. Vol. 10, ps 274
People were killed, came upon
smuggler, R. Vol. 10, p. 276
Did recognize the incident on
marijuana, R. Vol. 10, p. 298
Recognized Bobby Vines, R. Vol.
10, Pp. 299
Heard of Sandy Creek on TV,
R. Voli. 10; BD. 298
Questioned about anything else
- answer: missing people, two
men/two women, R. Vol. 10, p.
312-313
Talking about the sinkhole
incident (no prior mention of
sinkhole from Judge), R. Vol.
10, p. 328
Relates Sandy Creek with sink-
hole - killed when arrived at
scene, R. Vol. 10, p. 332
Description of murders, R. Vol.
10: Bs 329
Relation of Sandy Creek - pot -
Sinkhole, R. Vol. 10, p. 361
Brought up bodies - stemmed from
a marijuana deal, R. Vol. 10,
O« 263
Listened to wife despite instruc-
tions, BR. Vol. 10, p. 373
Recognized Vines from papers,
R. VOl. ll, ps 7
A-A-1ll
Ferguson:
Mercer:
Alexander:
Bishop:
Goodson:
Perry case & sinkhole - bodies
R. VOL. dig Be 2S
Boat sunk with marijuana in
sinkhole - some connection,
R. Vol. 13,-9. 82
Two men/two women, R. Vol. ll,
oS. Be
Marijuana case, R. Vol. ll, p.
37
Sinkhole, R. Vol. 1l, p. 40
No relationship between sink-
hole and this case, but...,
R. Vol. ll, p. 41
.-.-Saw request for venue change,
R. Vol. lig Be Be
Not sure she could lay ideas
aside, R. Vol. ll, p. 61
Recalls details, R. Vol. ll,
p. 67-68
Relates this to this case, R.
Vol. ll,-p. 6&8
Has ideas, R. Vol. 1l, p. 68
Doesn't know anything about
pre-trial publicity R. Vol. ll,
Dp. SAS
Doesn't remember anything
lately, R. Vol. 1l, p. 120
Knows others talking - four
killed and drugs, R. Vol. ll,
p. 140
Sandy Creek reaction, R. Vol.
ll, p. 168, 169
A-A-12
Watts:
Brown:
' Blanton:
Neal:
Williams:
Womble:
Relates knowledge of drugs,
murders, car links, R. Vol.
ii, Pp. i689
Girls/men, R. Vol. 1l, p. 189
Sandy Creek, heard about people
being found R. Vol. 1l, p. 210
Bodies and pick-up out of sink-
hole - heard folks talking,
R. Vol. ii, p. 228
Sandy Creek - drug smuggling
or something, R. Vol. ll, p-
249
Sinkhole - murders, R. Vol. 1l,
Db. £31
Killed by group unloading ship,
R. Vol. ll, p. 254
Remembers case, involved pot,
R. Voi. ik, B. 269
Connection with another case
trying to be connected with
this case, R. Vol. 1l, p. 271
Sandy Creek case - the murder
case, R. VOl. il, p. 272
Two men/two women, R. Vol. ll,
Dp. £72
Marijuana people with murders,
mR. VOL. ik, gp. 273
Has something to do with
smuggling, R. Vol. 1l, p. 292
Saw words in paper, R. Vol. 11,
p. 308
A-A-13
Brown:
Russ:
McAfee:
Moulton:
Truck/young girls, R. Vol. ll,
p. 309-310
But I'm not positive how my
mind will work right at that
moment, that I'm going to try
caates VOL« 21, @. 343
Sinkhole - connecting drugs
and sinkhole, R. Vol. ll, p.
324
Heard something on T.V., R.
Vol. ll, p. 348
Assumed it was about the Sandy
Creek incident, R. Vol. ll,
p. 367
Things all tied up together,
RB... Vel. -t4, Be 372
I've heard about it before,
RR. VOL. 23; 8. 382
Sandy Creek relates to bodies,
Rs Vel. “Ei, Bs 283
Anything involving drugs, nods
negative, R. Vol. ll, p. 385
A-A-14
APPENDIX B
The following is the list of jurors
impanelled in this case with excerpts
from and citations to their remarks
during voir dire concerning their knowl-
edge of publicity surrounding this case
and/or the State murder case involving
these Defendants:
c
JURORS IMPANELLED
Thurmond: Case about marijuana bust,
S.R., Vol. 4, p. 16
Sandy Creek--murder of four
people, S.R., Vol. 4, p. 17
Cato: Indictment triggered con-
nection, S.R., Vol. 4,
pp. 46-47
Sinkhole in Taylor Co.,
some bodies were found,
SR, VOL. 45 Be 39
Knew young people, S.R.,
Vol. &, Bp. 36
With drugs, S.R., Vol.
4, p. 56
Panama City, S.R., Vol.
4, p. 64
Some men/women, S.R.,
Vol 4, p. 65
Bass: The mention of Mr. Vines
brought to mind recent
press reports and every-
thing, &.R.,. Vol. 4, p. ii2
Some of drug smuggling
A-B-1l
Bradwell:
Golden:
charges related to some
murders, S.R., Vol 4,
o>. 449
The Sandy Creek murders,
S.R., Vol 4,5 Be 448
Made connection through
Vines name, S.R., Vol.
S. Bs 259
Regularly subscribes to
Tallahassee Democrat,
S.R., VOl. 4, p. 114
The only evidence I have
up to now, quote, is from
press accounts, S.R., Vol.
4, BD. i29
Q: Anything in indictment
that you've read about
A: Possibiy . «+ . im
Tallahassee Democrat,
S.R.¢ VOL. So ps 242
Sandy Creek--sinkhole
murder case, S.R., Vol.
4, p. 144
Q: Do you connect Sandy
Creek murder with these
Defendants?
A: Yeu, O60. @.sRse VOSe
4, p. 145
R., VOL. 8, Pe 3
Something like some bodies
or something was found in
it. R.¢ VOl. 8, p. 23
They found some--a girl or
A-B-2
Christie:
Newhall:
something, R., Vol. 8,
D>. 30
Ris VOLs By Bs Ba
Q: Does Sandy Creek mean
anything to you, R.,
Vol. 8, p. 99
A: Well, I've read the
papers before
Regularly gets Talla-
hassee Democrat, R.,
Vol. 8, pp. 99-100
Read when they found
the people and got the
truck out, white, 2
males and 2 females
a couple of them were
real young and acouple
of them older. R.,
Vol. 8, p. i109
(Remembers details of pub-
LACity, Bi, Vee. 20;
pp. 45-46.)
People do talk, no matter
what you tell them to do.
Rise VOhw 205 Be OS
And apparently some people
out there put some things
together, R., Vol. 10,
p. 47
Just people recognizing
either names or locales
Or something like that,
R., Vol. 10, p. 49
Q: Sandy Creek or Sinkhole
A-B-3
Overstreet:
Woods:
you haven't told us?
A: Unidentified bodies
Somebody said, oh, this
must be about the Sinkhole
murders. And that phrase
was used. R., Vol. 10,
p. 61
R., Vol. o, Bp.
Was drug ring or something
like that. And it made me
think that it tied in with
those Sinkhole murders or
that they were trying to
tie it up. R., Vol. 3,
p. 72. (Specific details
recalled), R., Vol. 9,
pp. 89-90.
R.. VEl..10. 8.
QO: .«. » « OF anything at
all about this case?
A: Well, of course,
. What is it?-- Sink-
hole murders, but I
hadn't--didn't know it
was a separate charge
from that case v. the
Marijuana case, R.,
Vol. 10, p. .78.
Sandy Creek murders, R.,
Vol. 10, p. 82
Truck pulled out of Sink-
hole, R., Vol. 10, p. 98
Other details, R., Vol. 10,
pp. 100-102.)
A-B-4
Fontana:
Mercer:
R., Vol., 10, p. 202
Q: Before you came here,
did you know what case
you would be juror on?
A: Yes. Article in Sun-
day's newSpaper, R.,
Vol. 10, p. 208
When you read the indict-
ment, I realized what case
it was, because I had read
in the newspaper about it
prior to that, R., Vol.
10, p. 210
Q: Do you, in any way,
relate that (murders)
to this case?
BR: Be. - Ba Ve. 28,
op. 214
(Recalls details of mur-
ders, R., Vol 10, p. 218.)
Had some idea (of what case
was), R., Vol ll, p. 59
Q: Do you relate this
case to something that
you read in the paper?
A: I recall very vaguely
. . There was a ship
boats sank somewhere
that was an attempt to
unload some marijuana
- I don't recall
whether or not this
happened before the
incident of bodies
being found in the Sink-
bole, R., Vol. 42 » Be. 67
A-B-5
Neal:
Alexander:
(Recalls details), R.,
Vol. ll, p. 68
And I think what I got Bishop:
from that was the specu-
lation that these persons
may have witnessed the
unloading of the marijuana
and that they, in fact,
may have been killed as
a result of this. R.,
Vol. li, p. 68
Don't know if it had to
do with guns that were Goodson:
used, R., Vol. ii, p. Sl.
[Also remarks on R., Vol.
sd, De 88.)
R., Vol. 10, p. 351
Q: Do you think you've
heard about this case
at anytime? Blanton:
A: Yes, .. . Sandy Creek
and Sinkhole, R.,
Vol. 10, p. 360
They brought up some bodies
Or something .. . And it
all stemmed from a mari-
juana deal. R., Vol. 10,
p. 363.
My wife said paper said .
. . there could be at least
six more people killed
« « R., VOL. 10, p. 364
ALTERNATE JURORS
R., Vol. 23, p. 103
A-B-6
No knowledge.
R., VOl. ii, p. 133
Sandy Creek rings bell.
R., Vol. 11, p. 140
Four people killed and
they think drugs have to
do with something connected
with the case ... R.,
Vol. ll, p. 140
R., Vol. ll, p. 158
Q: Sandy Creek, R., Vol.
il, pe 268
A: Some people were found
down there. Some bodies
was found. R., Vol.
il, p. 169
R., Vol. ii, p. 220
Sinkhole--They got four
bodies out of, R., Vol.
il, Ppp. 227-226.
APPENDIX C
The following are excerpts from
articles which appeared in the
Tallahassee Democrat since August 8,
in which links are made between Sandy
Creek pot smuggling operation and the
Sinkhole Murders.
l.
December 20, 1977
q3 ". . . pot=-smuggling led to
murder
December 10, 1977
q3 ". . . Sandy Creek pot-
smuggling led to slayings of
four
December 9, 1977
ql". . . marijuana operation
four killings
December 8, 1977
q1 ". . . Sinkhole murders
pot-smuggling operation
A-C-1l
1977,
10.
December 2, 1977
q2 ". . . Sinkhole murders and
related pot operation..."
December 1, 1977
WW14 and 5 "“pot-smuggling
oor. . =« emOe COiGeath ..."
November 30, 1977
ql oo". . . pot-smuggling .
Taylor County sinkhole murders
November 30, 1977
Seon ses Bashing . .. pot-
smuggling . Sandy Creek..."
November 16, 1977
q3 ", . .« pot-smuggliing related
murders ..."
November 15, 1977
q3 "se » « eandy Creek .. . the
night the victims were slain..."
A-C=-2
ll.
13.
14.
15.
November 10, 1977
48 m6 four killings linked to
Sandy Creek Smuggler
November 8, 1977 16.
" . . the boat lawmen believe was
used in a pot smuggling operation in
which four persons were murdered
November 6, 1977
". . . radio stations carrying a
North Florida pot and murder story 17.
into the flat rows of wood-framed
houses
November 6, 1977
". . . financier of a pot smuggling 18.
operation that resulted in four
murders . .
November 5, 1977 19.
". . . authorities theorize that
four Panama City area people whose
bodies were found in a sinkhole near
A-C-3
Perry this summer were murdered
when they stumbled onto the
Marijuana unloading operation. .."
November 1, 1977
5 arrested two weeks ago for
Marijuana conspiracy and third
degree murder in the deaths of
four Panama City people whose
bodies were found in Watering Hole
Sink near Perry this summer..."
November 9, 1977
3 st ~-killing of four who
stumbled. -onto pot-smuggling
Operation near Panama City..."
November 9, 1977
44 ne -Marijuana. .-Sandy Creek
SOUr Riiiinge ... «*
October 30, 1977
{9 ". . .sometime after midnight
- «they stumbled on a pot-smuggling
Operation and were killed because
A-C-4
20.
él.
22.
23.
they recognized some of the men
involved.
October 29, 1977
2 a -Six of the men charged
with smuggling 20 tons of pot into
Sandy Creek plead innocent to.
murders.
October 24, 1977
", . .~helping local authorities with
the Taylor County sinkhole murder
case. -shrimpboat. .carried load
of pot. -the night sinknole
victims disappeared.
October 19, 1977
{1 "Eight men were charged today
with four. .-Murders. . lawmen
linked the killings to a pot-
smuggling operation that went awry
near Panama City.
October 14, 1977
ql ". . .Seven. -arrested in the
A-C-5
24.
26.
27.
Sandy Creek drug importation.
possible link with the sinkhole
murders. ..”"
October 10, 1977
} ae -may help unravel the sink-
hole murders. . .who bought the 14
foot boats used in a marijuana
Operation the night the four sink-
hole victims disappeared. .."
September 7, 1977
{2 "Bobby Vines. -about a marij-
uana deal near Panama City. . .
Police believe he can provide in-
formation about murders. .."
September 3, 1977
{17 "Agents are continuing to
trace. eSOUS« «
-to link them with
a Marijuana smuggling operation that
went awry in Sandy Creek. . ."
August 21, 1977
qi3 ". . .an apparent link between
A-C-6
28.
29.
30.
31.
32.
the victims and a huge marijuana $3.
deal near Springfield.
August 18, 1977
.four
oe: .drug-smuggling.
»- « eresidents murdered. 34.
August 14, 1977
44 ra -killings. connected
. .drug-smuggling.
35.
August 13, 1977
, | ae .same night. .Watering
Hole Sink. »pot-smuggling
operation."
36.
August ll, 1977
oT -the four sometimes
visited Sandy Creek. -a Marijuana
deal. .Sandy Creek about the time
the four disappeared.
January 31, 1978
Page lb "Sandy Creek operation.
where they were bound, shot and dumped
-in sinkhole.
January 29, 1978
Page lc "Sandy Creek smuggling trial
Monday" - »« «pot smuggling ring
that led to four murders..."
January 28, 1978
Page lb "During the operation four
residents. . .were shot. . .and
dumped in the Sinkhole. . ."
January 24, 1978
Page 2b “The four stumbled on Sandy
Creek marijuana smuggling operations
by accident and were killed. .."
January 31, 1978
Page lb ". . .recovered from
another nearby sinkhole pick-up
truck they believe was used to trans-
port victims from site of aborted
marijuana smuggling operation at
Sandy Creek. . .15 men included 7
murder defendants go on trial in
Tallahassee Monday on federal mari-
jJuana smuggling charges. . ."
A-C-8
37.
January 20, 1978
"Truck found in Taylor Sinkhole"
". , .were killed when they appar-
ently stumbled onto a marijuana
unloading operation at Sandy Creek
.15 men including seven of
murder suspects go on trial in
Tallahassee January 30 on mari-
juana smuggling charges.
A-C-9
APPENDIX D
The following are excerpts from
newspaper articles published between
October 15, 1977 and December 20, 1977
which described alleged criminal activi-
ties or convictions of the Defendants.
1.
December 20, 1977 (News-Herald)
q20 ". . . is serving time for
smuggling in a Louisiana
prison.”
November 16, 1977 (Tallahassee
Democrat)
q5 ". . . must face similar charges
in Louisiana. is currently
serving a jail sentence for
smuggling 18 tons of marijuana
last February."
November 9, 1977 (Tallahassee
Democrat )
(#31 ". . . is stiil in the Living-
ston Parrish jail serving time
for his part in the smuggling of
A-D-1
18 tons of. . .marijuana into
Louisiana last February...
released on bonds $60,000 each
must also face charges stemming
from the Louisiana operation
October 20, 1977 (News-Herald)
q7 ". . . is currently serving a
10-year marijuana smuggling
sentence. . ."
October 15, 1977 (St. Petersburg
Times)
q5 ". . . is serving a 10-year
sentence on drug smuggling
charges involving 18 tons of
marijuana."
October 15, 1977 (News-Herald)
a8 ". . . where he was serving a 10-
year sentence for a similar con-
viction on drug smuggling charges
involving 18 tons of pot."
October 20, 1977
Lu
sentence a!
La. pertah jail
Al least seven of Unose now
i= custody were charged last
—Saet_with_posseasion and
A-D-3
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sus_DOG U] poBupuy, VL
yom
SO1200g [NZ INDeg sO;
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8U01}420§ ents
seBog o¢
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,
seodnodsmen [njy240KM 5,OP]s0]4 sSOmMYLION
special agent for the FDCLE
undoeding 18 to 3 tons of
marijuana. according to
Up anc Laken to the sinkhole
i
ait
it
ih
HH
FDCLE officials said it
Seven man inctading two trem Paname City, have been ar
Charges tei may be limied to
cre Pena the Drug Eatorcecsem Aches
tien, and Majer of the Department of Netural
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Td Year No 42 Floride'e Cagnes Newapapes Saturday, February 11,1978 = 16
Convicts lived it up here — while they could
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Trial
. (Ceatineed from page 1D)
He said such events as the Sandy
Creek operation in Bay County on
Jan. 23, 1977, were staged by govern-
ment agencies to enlarge budgets and
gain more agents and more power.
Government involvement in mari-
juana operation, through the FBI on
the part of agent Donald Baldwin and
his informant Bobby Vines, Marger
Claimed, “is wrong, outrageous, im-
moral, unpatriotic and unconstitu-
tional.”
~ Earlier Wednesday Marger at-
tempted to persuade Stafford to rule
that prosecutor Donald Modesitt, an
aplntent U.S. attorney, could not
yea his clients about their con-
ions on marijuana charges in
uisiana if they took the witness
. After the judge ruled against
Marger rested his case without
ting any witnesses for ques-
= Dering rebatta) testimony. Modes-
itt brought Vines back as a prosecu-
tion witness. Vines earlier had
testified as a witness for the defense.
Modesitt asked Vines whether he
was involved in another marijuana
deal in Texas when he was arrested
in September 1977. Vines refused to
answer the question, claiming his
constitutional right against self-in-
crimination.
Attorney Michae] Mann, defending
David and Christopher Goodwin of
Panama City, moved for a mistrial
because Vines’ Fifth Amendment
claim prejudiced the case against his
clients. Stafford ruled against Mann’s
motion.
Before the judge dismissed the
jury Wednesday he asked them to
come prepared to spend tonight away
from home. He said as soon as he
imetructed the jury, they would have
te stay together until a verdict in the
Case was reached.
A-E-4
| Judge Rejects Pies
For Pot Mistrial |
| Federal Judge William Staf- |
' ford Friday rejected claims that
} the government coached a wit-_
ness who incriminated most of |
the nine defendants being tried
in Tallahassee on charges of
| conspiracy and possession of
' marijuana for sale purposes in
connection with a _ bungled
smuggling operation at Sandy
Creek near Panama City in Jan-
uary 1977.
Stafford refused to declare a
mistrial or order the jury not to |
consider testimony by William
Epperson, who pleaded guilty to
' one count of conspirac, and |
turned state's evidence. |
Epperson testified he consid-
ered withdrawing his guilty plea |
' because of street talk that he |
might be killed if he tesified at |
' the trial.
Then he detailed the marijua- |
na unloading and then identified |
most of the defendants as hav-
ing been involved. He said he
never knew the other members —
of the ring by their real names, |
adding that most of thém had |
beards and long hair, so they
looked a lot different than they
do now. |
|
15 ae
re
.
ww se”
Stafford recessed the trial
until 9 a.m. Monday after sever-
al witnesses discussed how
Bobby Vines, granted immunity |
to testify for the prosecution. |
and others purchased boats and
rafts in advance of the operation |
and checked into Tallahassee |
and Panama City motets. |
I.
So
APPENDIX F
JURORS WITH DAILY SUBSCRIPTIONS T
TALLAHASSEE DEMOCRAT -
Christie R. Vol. 8 p. 99
Bass S.R. Vol. 2 p. 114
Woods R. Vol. 10 >. G3
Fontana R. Vol. 10 p. 208
Mercer R. Voi. di p. 60
Neal R Vol. 10 p. 362
JURORS PURCHASING TALLAHASSEE
DEMOCRAT ON GENERALLY REGULAR BASIS
Cato S.R. Vol. 2 p. 46
Bradwell S.R. Vol. 2 p. 141
Overstreet R. Vol. 9 oS. Fi
Newhall R. Vol. 10 BS. 83
III. JURORS NOT SUBSCRIBING OR
av.
REGULARLY READING TALLAHAS
DEMOCRAT ane
Thurmond S.R. Vol. 2
Golden R. ¥Yoi. § ae
p. 15
ALTERNATE JURORS
A. Subscribing: Goodson, R.Vol. ll,
p. 166
B. Regular Purchaser: Alexander,
R.Vol. 11, p. 109
Cc. Not purchasing/subscribing:
Bishop R.Vol. ll, p. 139
Blanton R.VOl. 11, p. 226
APPENDIX G
These pictures are similar to the
one admitted at trial (R.Vol. 6, p.
19). Because there was only one copy
of the picture admitted into evidence,
these similar ones are submitted in
this Appendix form.
Dissenting opinion in United States
Vv.
APPENDIX H
Haldeman,
559 F.2d 3l
(1976)
UNITED STATES v. HALDEMAN 145
Cie os 688 F.3d 3) (1076)
The unrefuted evidence of singularly
heavier coverage in Washington, D.C. and
of substantially heavier impact of the cov-
erage in Washington (pretrial) bias) could
only impel a decision by the District Court
Judge to move the jury selection and trial
to another location in the United States,
with either the same or another judge. No
other area could have been as biased as
Washington, D.C., and many areas could
have been substantially less biased and have
left no doubt about the fairness of the trial
from the standpoint of venue.
This result was especially favored be-
cause of the conclusion that fairly leaps
from the survey results in the Sindlinger
Affidavit: much of the entire country a/-
ready thought the appellants guilty. At
the very Jeast a court would be expected to
remove the tria! from a locale where 61% of
the populace had concluded guilt to a locale
where only 43% or less had so concluded;
there must have been many such locales,
since the national average was 43% (Appen-
dix A at 6). In Richmond, Virginia, only
S7'4% considered that defendants were
guilty. (75% of 50%, id.) This was not a
situation where many had not heard of the
case, or where many had no conclusion one
way or the other. Here, on the face of an
unrefuted and apparently accurate poll,
most people in Washington, D.C., some 61%,
in their own minds had already completed
the tria] and returned a verdict of guilty,
while only some 2% of the city had formed
an opinion of innocence. (Jd. at 6). The
appellants’ plea was not to go where most
residents had not heard of the indictments
or had not formed some opinion, for their
evidence disclosed no such place. The plea
was to go to a place where where less than
one-half the potentia] jurors had formed an
Opinion that they were gui/ty, with the rest
withholding judgment.
It was possible for the Judge to travel
with this case; any conviction he may have
had as to the necessity that he preside need
not have been violated.
IV. THE LEGAL STANDARDS
In weighing the foregoing evidence on
pretria] publicity, the District Court and
this court are required to apply the law that
governs the change of venue question. The
law on the matter is established in four
categories. First, there is the law applica-
ble to federal cases, as set by the Supreme
Court and the Circuit Courts of Appeals
under their supervisory power over the Dis-
trict Courts, and, in the case of the Su-
preme Court, over the Circuit Courts of
Appeals as well. Second, there is the law
applicable to al) courts, state or federal,
under the Constitution Within each of
these two categories there is a division be-
tween two types of venue-change decisions
for pretria! publicity. One is the category
in which prejudice to the defendant is
found to exist presumptively, because of
extraordinary circumstances of coverage
The second is the category in which, al-
though prejudice cannot be declared pre-
sumptively, the voir dire of prospective jur-
ors discloses sufficient prejudice to warrant
changed venue. This produces the four cat-
egories of analysis: (1) federa! and (2) con-
stitutional, and (3) presumptive and (4) ac-
tual.
The case law establishing these categories
is clear-cut. There is a federa! supervisory
standard, in addition to a constitutional
standard, in these cases, which would assure
fair trials by an application of the rule of
presumptive prejudice or through identifi-
cation of actua! prejudice This is made
clear in Marshal! v L'n’ted States, 360 U.S
$10, 79 S.Ct. 1171, 3 L.Ed.2d 1250 (1959),
and reiterated in Murphy v. Florida, 421
U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 5a9
(1975), where the Court wrote, discussing
Marsha!!:
The defendant in Marsha!) was convict-
ed of dispensing certain drugs without a
prescription. In the course of the tria!
seven of the jurors were exposed to vari-
ous news accounts relating that Mershal!
had previously been convicted of forgery,
that he and his wife had been arrested
for other narcotics offenses, and that he
A-H-2
146 $6@ FEDERAL REPORTER, 24 SERIES
had for some time practiced medicine
without a license. After interviewing the
jurors, however, the trial judge denied a
motion for a mistrial, relying on the jur-
ors’ assurances that they could maintain
impartiality in spite of the news articles.
Noting that the jurors had been ex-
posed to information with a high poten-
tial for prejudice, this Court reversed the
conviction. It did so, however, expressly
“{iJn the exercise of [its] supervisory pow-
er to formulate and apply proper stan-
dards for enforcement of the criminal! law
in the federa] courts,” and not as a mat-
ter of constitutiona! compulsion. Id., at
313 [79 S.Ct. at 1173).
421 U.S. at 797, 95 S.Ct. at 2035 (footnote
omitted) (emphasis added).
The Court in Murphy was addressing it-
self to the constitutional standard applica-
ble to state trials. The Court went on to
survey the scope of the constitutional stan-
dard, as opposed to the federal supervisory
standard:
Petitioner relies principally upon Jrvin
v. Dowd, 366 U.S. 717, [81 S.Ct. 1689, 6
L.Ed.2d 751) (1961), Rideau v. Louisiana,
873 U.S. 728, (88 S.Ct. 1417, 10 L.Ed.2d
663) (1963), Estes v. Texas, 381 U.S. 532,
(85 S.Ct. 1628, 14 L.Ed.2d 543) (1965), and
Sheppard v. Maxwell, 384 U.S. 333, [86
S.Ct. 1507, 16 L.Ed.2d 600) (1966). In
each of these cases, this Court overturned
a state court conviction obtained in a trial
atmosphere that had been utterly cor-
rupted by press coverage.
In Irvin v. Dowd the Court
readily found actua! prejudice against the
petitioner to a degree that rendered a
fair trial] impossible.
Prejudice was presumed in the circum-
stances under which the trials in Rideau,
Estes, and Sheppard were held.
In Rideau the defendant had “confessed”
under police interrogation to the murder
of which he stood convicted. A 20-min-
ute film of his confession was broadcast
three times by a television station in the
community where the crime and the trial
took place. In reversing, the Court did
not examine the voir dire for evidence of
A-H-3
actual prejudice because it considered the
trial under review “but a hollow formali-
ty"—the real tral had occurred when
tens of thousands of people, in a commu-
nity of 150,000, had seen and heard the
defendant admit his guilt before the cam-
eras.
Id. (emphasis added).
The federal! supervisory standard pro-
vides broader protection against prejudice
than the constitutional standard. Concur-
ring in Murphy, supra, Mr. Chief Justice
Burger wrote:
I agree with Mr. Justice BRENNAN
(dissenting) that the tria) judge was woe-
fully remiss in failing to insulate prospec-
tive jurors from the bizarre media cover-
age of this case and in not taking steps to
prevent pretrial discussion of the case
among them. Although I would not hesi-
tate to reverse petitioner's conviction in
the exercise of our supervisory powers,
were this a federa! case, | agree with the
Court that the circumstances of petition-
er's trial did not rise to the level of a
violation of the Due Process Clause of the
Fourteenth Amendment.
421 U.S. at 808-04, 95 S.Ct. at 2088 (empha-
sis added). And in Rideau, supra, Mr. Jus-
tice Clark wrote, dissenting:
if this case arose in a federal
court, over which we exercise supervisory
powers, | would vote to reverse the judg-
ment before us.
378 U.S. at 728, 88 S.Ct. at 1420.
Recently, an opinion by Judge Bazelon
emphasized that federal appellate courts
have the duty to impose supervisory stan-
dards over criminal cases, L’nited States v.
Pinkney, 179 U.S.App.D.C. 282, 551 F.2d
1241 (1976) n.50, but, for some unexplained
reason, the majority does not conform to
that exhortation in this case, where the
supervisory standard has been promulgated
by the Supreme Court.
The foregoing makes three unequivocal
points. First, there is a category of pre-
sumptive prejudice to which a federal su-
pervisory standard applies. Second, that
standard assures a defendant more protec-
tion against prejudicial pretrial publicity
UNITED STATES v. HALDEMAN 147
Cite as 550 F.3d 3) (1976)
than the constitutional standard Finally,
one example of the presumptive federal!
standard is found in Marshal], supra, under
which
_ persons who have learned from
pews sources of a defendant's prior crimi-
nal record are presumed to be prejudiced
Murphy v. Florida, 421 U.S. at 798, 95 S.Ct.
at 2035.
V. APPLICATION OF THE
STANDARDS
A. The District Court
The District Court disposed of the ques-
tion of presumptive prejudice at the June
12, 1974, motions hearing. In doing so it
did not distinguish between a federal and a
constitutiona! standard, and it did not ex-
amine or attempt to apply the law of pre-
sumptive prejudice.
THE COURT: Now you are talking
about change of venue, where would you
suggest the case be sent to for trial? Do
you know of any place in the country’
MR. BOYER [Mr. Spencer Boyer, for
Mr. Ehrlichman]: Any place other than
the District of Columbia, Your Honor.
THE COURT: What do you mean by
anyplace other than the District of Co
jumbia? Ajexandria—across the river’
MR. BOYER: No, Your Honor.
THE COURT: Where’
MR. BOYER. What we are asking for
is of course that would depend on severa!
things. That would of course be deter-
mined by this Court. That would also
depend upon the calendar of the other
districts. We would be willing to assist
the Court in any manner to find out any
district which would be out of the imme-
diate environs of the District of Columbia
to see whether or not their calendar could
accommodate a trial] of this length, com-
plexity, and scope.
THE COURT: Now let's talk about
some highly publicized cases that have
been tried in the country. Let's go back
many years, probably before your time,
the tria] of Richard Hauptman, involving
the kidnap of the Charles Lindberg baby
in New Jersey. I remember the trial
very well, highly publicized Of course in
those days we didn't have radios to the
efficiency we have now, or television
We had newspapers, frontpage stor)
everyday all over the country
Senator Kennedy was killed out in Cali-
fornia, a highly publicized case. The
Manson tnal. Recently | had two mur-
der trmals here that I presided over, high-
ly publicized for weeks—the Ammidown
case, one of the most bruta! murder-rape
cases ever tried in the histor, of our
court, or probably any court in the coun-
try; and the Lee case, a companion case
Now the test is going to be whether or
not after voir dire examination by the
Court you can obtain, you can empane! a
jury say under oath not only having read
or heard or listened to matters concern-
ing the case that they could decide this
case on the evidence and the law of the
case. It comes down wo that.
Tr. June 12, 1974 (Docket No. 180) at 431
33 (emphasis added). The fina! sentences
reveal that the Distmct Court intended no
examination at al] to determine if the
amount and nature of the presumptive pre)-
udice violated the supervisory standard ap-
plicable in federa) courts. And in fact it
did not indulge in any such examination
Later in the hearing the Distnet Judge
showed again that presumptive prejudice
was not a consideration
We have 800,000 people approximate)
living in the District of Columbia. And if
we can get a jury—and this is going to be
the test in my opinion—{which] can
truthfully say they have heard some
parts of those hearings but have not
formed an opinion from what they heard
or read, or heard commentators talk
about, they can truthfully say they can
sit on this case even though it may be a
protracted case and coui’ render a ver-
dict after al] the evidence is in, based on
the evidence and law of the case, render a
verdict based solely upon the evidence
and law of the case. Until we try that
out how is a judge going to determine on
the arguments that have been made. the
Court's knowledge of prior sensational
A-H-4
148 $40 FEDERAL REPORTER, 24 SERIES
cases that have been ted in the country,
protracted cases there and here, we have
had many of them mgbt in this district,
how are you going to know whether you
can get s jury unless you tred first’
Now, if you try as | have indicated and
you can't get them, that is one thing. if
we are able to empane! an unbiased jury
that is another thing. How are you go
ing to know unless you try’ I would like
to hear you on that.
MR. BOYER: Your Hooor, as I indi-
cated earlier, that severa] of the cases
and several! of the imperca! [sic] studies,
for example, the Broader Study on Voir
Dire Examinations and Imperica! (sic)
Study, and in fact the ABA standards
which I quoted earlier, recommend that
the Court strongly protect the defendant
before the trial, not to place too much
emphasis on the whole concept of voir
dire, especially where there has been the
pervasive publicity as that as has been
engendered by this particular case.
The problem with voir dire is that it is
going to be very difficult, especially here
in the District of Columbia, to determine
whether the juror is consciously or sub-
consciously harboring prejudice against
the defendants because of the widespread
media.
The Court earlier asked me a series of
questions as to what was the distinction
between some of the more celebrated
cases where there was not a change of
venue and this particular case. So ] may
submit to the Court that the circumstanc-
es Mr. Green has indicated, that this is an
unprecedented case, these are as Your
Honor earlier indicated, the personal
fmends and aides of the President, and
this has been an on-going saga of more
than two years whereas in many of the
cases that you referred to there were but
in a moment—in the Ammidown case and
the Lee case, even though they were cele-
brated cases here in the District of Co
jumbia—nowhere and by no stretch of
the imagination—
THE COURT: —how about the case |
tried which took me ten months to try?
The longest case ever tried in the history
of this court since 1801. It got quite a lot
of publicity, incidentally. It was a civil
antitrust suit against al] the major rail-
roads in the country and was publicized
pretty well. It was not a murder case.
We got a jury in that case and the jury
sat eight months
MR. BOYER: May ! submit to the
Court we are dealing with apples and
oranges.
THE COURT. Wait a minute. Let me
ask you s question. Do you suppose ev-
erybody that listens to radio and televi-
sion commentators pro and con, every-
body, or the majority of the people, have
made up their mind that President Nixon
is wrong in this whole matter or anyone
of these defendants are al] wrong and
that they are guilty of things? Don’t you
think there are millions of people in this
country now at this moment think the
President has done nothing wrong and
done everything according to his duties?
And vice versa many other people might
think otherwise. And about any of these
defendants that have been highly publi-
cized. Don’t you think there are millions
of people that do not believe they done
anything wrong?
MR. BOYER: Your Honor, those mil-
lions of people don't live here in the Dis-
trict of Columbia.
Id. at 435-37 (emphasis added). The Sind-
linger Affidavit demonstrates the truth of
the last observation.
The “ABA standards” referred to in the
foregoing exchange are at ABA Standards
Relating to Fair Trial and Free Press 119-
28 (Approved Draft) (1966). The commen-
tary therein reviews the pre-Murphy-Ri-
deau cases and succinctly states the error of
the District Judge's approach in this case.
The judicia] attitude has taken the form
of great deference to the discretion of the
trial judge, even when there is evident
dissatisfaction with his decision, of equat-
ing the ability to impanel a jury with the
absence of any need for other relief, and
of insisting that the defendant establish
actual prejudice on the part of virtually
the entire community.
A-H-5
UNITED STATES +. HALDEMAN 149
Ce as 558 F263) (1976)
Id. at 121-22 (emphasis added). The ABA
Standards were printed in 1966. They illu-
minate the issues here. The pertinent stan-
dard is:
A motion for change of venue or con-
tinuance shall be granted whenever it is
determined that because of the dissemi-
nation of potentially prejudicia] material,
there is a reasonable likelihood that in
the absence of such relief, a fair trial
cannot be had. This determination may
be basec on such evidence as qualified
public opinion surveys or opinion testimo-
ny offered by individuals, or on the
court's own evaluation of the nature, fre-
quency, and timing of the materia! in-
volved. A showing of actual prejudice
shal] not be required
Id at 119 (emphasis added). In commen-
tary, the ABA authors wrote:
As shown by such cases as People v
Martin (19 App.Div.2d 804, 243 N.Y.S.2d
343 (1st Dep't 1963)], Delaney v. United
States [199 F.2d 107 (1st Cir 1952))}, and
Rideau v. Louisiana [373 U.S. 723, 88
S.Ct. 1417, 10 L.Ed.2d 663 (1963)], there
are occasions when the inherently preju-
dicia! nature of the material, coupled
with knowledge of its wide dissemination
in the community, requires the granting
of relief without elaborate soundings of
community sentiment. In such instances.
change of venue may be particularly ap-
propriate when it can be shown that the
news coverage has been far less pervasive
in some other locality within the jurisdic-
tion.
Id. at 126 (footnotes omitted).
As to the opinion poll, the District Judge
says simply, “You know polls can be wrong
too. We remember the famous election
when Governor Dewey ran against Presi-
dent Truman. I have great faith
in the jury system” (Docket No. 180 at
487) (emphasis added). But this statement
reflects categorica] rejection without con-
sideration of the Supreme Court rule on
presumptive prejudice. In light of Murphy
and Marsha!! the law is now that presump-
tive prejudice is a factor that must be ex-
amined in venue decisions. The District
Court therefore committed reversible error
in declining even to consider the factor If
the federa! standard for presumptive preju-
dice exists at all, it requires the tria! court
to recognize the possibility of presumptive
prejudice. Further, on the facts of this
case, the presumptive prejudice existing in
the District of Columbia, which is demon-
strated by Appendix A and the newspaper
clippings, mandated a change of venue to a
more favorable venue.
B. The Majority Opinion
The majority opinion states
We believe, however, that it is inappro-
priate to attempt to formulate a supervi-
sory power standard for concluding that
a fair jury cannot be selected
Majority opinion at —— of 18] U.S.App
D.C., at 62 of 559 F.2d. The Supreme
Court, however, has formulated a superv)-
sory standard in venue matters. The
present Chief Justice and Mr. Justice Mar-
shal! and Mr. Justice Clark have so written
421 U.S. at 798, 804, 95 S.Ct. 2081; 373 U.S
at 728, 83 S.Ct. 1417. The majority should
acknowledge that it exists and apply it
The reasoning of the majority opinion
turns on the notions that identifying and
applying such a standard would be hard to
do (Majority opinion at —— - —— of 18]
U.S.App.D.C., at 62-63 of 559 F.2d), the
trial would not be fairer (id. at —— - ——
of 181 U.S.App.D.C., at 68 of 559 F2d),
and that, after all, i! tma! courts are per-
mitted to deny changes of venue for pre-
sumptive prejudice and to go on to the voir
dire, more information on prejudice would
be available (id. at —— - —— of 181 US.
App.D.C., at 63 of 559 F.2d).
It is true that voir dire is potentially a
valuable tool for discovery of prejudice, but
that observation is irrelevant to the issue of
whether a supervisory or constitutiona!
standard is to apply in weighing the infor-
mation on prejudice. Also, as held in Mar-
shall, supra, there are cases in which voir
dire is pointless. Further, the trial could
not help but tend to be more fair if the
venue were laid where only 374% of the
A-H-6
150 559 FEDERAL REPORTER, 2d SERIES
people (as in Richmond) already thought
the defendants guilty, instead of some 6]%
(as in the District of Columbia), and there is
no doubt that many communities could have
been found where the presumptive preju-
dice was substantially less.
As to the standard, the court here is
simply walking away from its duty. The
majority thus whisks the law away at
whim.
The appellants here are criminal defend-
ants in federal court. They have a right to
be judged by federa] standards—the same
as al] other federa! defendants. Federal!
judges have a sworn duty to apply federal
standards, as denominated by the Supreme
Court, to the facts of this case. The federal
judges here have not done so. No consider-
ation whatscever has been given to the
existence of potential prejudice above the
bare minimum constitutional obligation.
VI. THE LAW APPLIED TO THE MAY
1, 1974 MOTION
The task of this court is to apply the
federal supervisory standard for presump-
tive prejudice to the facts of this case.
A. The Remedy
The first step in analysis is to clarify the
precise remedy and to identify its costs.
The remedy was not delay. It was not a
continuance. It did not entail additional
national agony in delaying the tria! and its
resolution. The remedy was simply for the
trial to be held in practically any place
other than Washington, D.C. Moreover,
the District Judge was not barred from
himself travelling with the case and trying
it. The interests of the country in a prompt
trial and supervision of a fine judge were
simply not at stake. To say that they were
is to completely evade the law as to change
of venue. The fact is that had such change
of venue been made, the issue of the fair-
ness of the trial, on the venue point, would
have been completely obliterated from the
case. Why the Government and the trial
court would want to hazard a criminal trial
in which the evidence of guilt was as strong
as it was here by insisting on trial in a
jurisdiction where presumptive prejudice
existed to the extent that it did here, defies
reason. Delay and the selection of the
judge were not issues, and the issue of
possible additional trial costs in the new
venue was not raised (Docket Nos. 142, 180).
The Government had absolutely nothing
to lose by trying the case in a community
where presumptive prejudice was at a mini-
mum, and to say that it did have something
to lose is to admit that the case should have
been transferred.
A factor that compelled use of the simple
venue safeguard in this case was that the
United States Senate had expressly chosen
to televise its hearings in spite of the
Watergate Specia! Prosecutor's request, out
of concern for defendants’ fair trial rights,
that there be no television coverage. The
Senate reported:
The committee's interest in televised
hearings was not to obtain publicity for
publicity’s sake. The facts which the
committee produced dealt with the very
integrity of the electora] process; they
were facts, the committee believed, the
public had a right to know. Most citizens
are not able personally to attend the
working sessions of their Government.
Although thousands of people spent short
periods in the Caucus Room during the
hearings, these visitors represented only a
smal! percentage of the electorate. Thus,
‘t was desirable that every citizen be able
to view the hearings, if not in the Caucus
Room, then in his home or place of busi-
ness. The ability to read about the hear-
ings in the printed media was not suffi-
cient. The full import cf the hearings
could only be achieved by observing the
witnesses and hearing their testimony.
It was for this reason that the commit-
tee opposed the efforts in Federa! court
of Special Prosecutor Cox to proscribe
television and radio coverage of the testi-
mony of Magruder and Dean. The Spe-
cial Prosecutor's expressed concern was
that public hearings might prejudice fu-
ture criminal trials. It was the commit-
tee'’s position that they would not, but,
even if they did, it was more important in
A-H-7
UNITED STATES v. HALDEMAN 151
Cie as 650 F263) (1976)
this period of crisis and national] concern
that the ful] facts be promptly made
known. The public should not have to
wait a year or more until the Watergate
trials were over to know the scope of the
corruption in its Government.
S.Rep. No. 93-981, 93d Cong., 2d Sess.
XXXI-XXXIJ (1974) (emphasis added).
This statement speaks for itself and indi-
cates that the Senate hearings were uncon-
cerned with the prejudice they might cause
to future criminal trials. Given this deci-
sion, and the nationally televised and pnnt-
ed coverage it created, simple fairness com-
manded that the trial be located in some
community where there lay a minimum pre-
judgment of guilt.
One other element of cost should be ex-
plicitly stated. It is the cost now, in 1976,
of reversing the convictions for a retria) of
these cases where the Government's evi-
dence is massive. The cost includes re-
opening old wounds. The cost may also
include public exasperation and disillusion-
ment. The cost certainly would include the
dollar outlays for a new trial. But the
existence of the federa! supervisory rule
requires such disposition and the only court
in this land that can alter the existing rule
is the Supreme Court of the United States.
The law is otherwise clear, and this court is
bound to apply it. Our constitutional guar-
antee of a fair trial includes the absolute
right to an open-minded jury and, as the
Supreme Court held in Stirone v. United
States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d
252 (1960), with respect to the right to be
tried only on felonies charged in an indict-
ment by a grand jury, the denia! of such
right cannot be treated as harmless error.
B. The Supervisory Standard and the
Publicity in this Case
We know that the proposition in
Marshal), a federa) case, is that
.. . persons who have learned from
pews sources of a defendant's prior crimi-
na] record are presumed to be prejudiced.
4 See, eg. Doonesbury comic strip in The
Washington Post, Aug. 13, 1974, § Bat 10, id.
Aug 12, 1974, § B at 8, id, July 27, 1974, § E
42) U.S. at 798, 95 S.Ct. at 2035 In this
case, as stated supra, the defendants were
the subjects of a massive wave of media
coverage which is without paralle) in lega!
history, which was extraordinarily heavy in
Washington, D.C., and which, on the unre-
futed record, led some 6]% of Washington,
D.C. area residents to conclude that the
defendants were guilt), before trial, with
only some 2% believing them innocent and
the rest withholding judgment. On the
same record, to a leve! of statistica! near-
certainty, this was not the case in such
other locales as Delaware, Southern Indiana,
and Richmond, Virginia
The Washington press commentar) in-
cluded substantial, unending vituperative
statements, of which these were typical
Honesty and following those
orders (from Haldeman and Ehrlichman)
were inconsistent.
He [Haldeman] stayed behind
the scenes, using loya! aides to do the
dirty work
See p. —— of 181 U.S.App.D.C., p. 142 of
559 F.2d, supra. The newspapers were sat-
urated with adverse comments, politica! sat-
ire and cartoons, and even a comic strip
attacked the defendants‘
This was not a case in which the defend-
ants were asking to go somewhere where
the jury pool would represent a clean or
neutral slate: it is a case in which they
sought simply to go someplace where the
smallest possible portion of the jury pool
had concluded in advance that they were
guilty.
Additional high dollar costs, delay, and
change of judge were not involved
In determining the proper applicability of
the supervisory standard declared in Mar-
shal], that case cannot be distinguished
from this case on the basis that the jurors
had improperly learned of a prior conviction
of the defendant, instead of some other
adverse information, because Rideau, which
was & constitutional case, was reversed
at 50, id. July 25, 1974. § F at 16. and Her
block cartoons in id. Aug 11, 1974, § C at 6
July 28. 1974, § C at 6
A-H-8
152 589 FEDERAL REPORTER, 24 SERIES
where the publicity did not involve any
conviction. The federa] supervisory stan-
dard is broader than the constitutional stan-
dard and can be violated by the possibility
of prejudice in any form. Jury prejudice is
not limited to publicity of a conviction or a
confession
The disclosure in Rideau involved a con-
feasion on television before some 106,000
viewers in three separate showings in a
population of some 150,000, or nearly two
thirds of the populace, assuming some sma!!
allowance for overlap in the audience
among the three showings. 378 U.S. at 724,
83 S.Ct. 1417. In this case the principal
defendants were dismissed from high office
in a wave of publicity that led nearly two
thirds of the population of Washington,
D.C. to believe they were guilty before tri-
al Moreover, eight of the twelve ultimate
jurors actually viewed portions of the tele-
vision hearings from which the Senate per-
jury counts were brought (Tr. 634, 842, 987,
1181-82, 1355, 1427, 1680, 1911). There was
therefore the obvious possibility that these
jurors in the case were actual witnesses to
the charged crime, a frequent cause for
disqualification as a juror. The adversary
nature of those hearings may have created
fixed impressions in the viewers and turned
them into partial partisans for one side or
another. They may have tended to side
with Senator Ervin as many did. The per-
centage of nearly two thirds is the same in
both Rideau and this case. In Rideau, the
Supreme Court said that for the people
exposed to the publicity, the publicity was
the tnal. 373 US. at 726, 83 S.Ct. 1417.
The same might be said of the Senate Hear-
ings as presented on television. And Ri-
deau was @ state court trial and therefore, a
constitutional case. If percentages are to
govern there, then it is even clearer that
they should govern in a federa/ case, where
a broader standard than the constitutional
standard applies.
C. The Evidence from the Voir Dire
The majority opinion explores the voir
dire that was actually held subsequent to
the denia] of the change of venue motion.
The voir dire confirms the conclusion
from the evidence that the venue should
have been changed at the beginning of the
case, on the basis of presumptive prejudice.
The voir dire began with preliminary
questions directed to groups of members of
the venire, in order to explore such matters
as reading the indictment, determining if
any person on the venire knew participants
in the trial or if they might tend to disbe-
lieve a witness because the witness had
pleaded guilty in another case, and to in-
quire into scheduling or medical difficulties
that would prevent those on the venire
from serving. Tr. 1-541.
The court then asked a standard set of
questions of members individually. This in-
dividua! questioning produced the panel of
twelve that was ultimately charged with
the case. Because of the importance of the
context and sequence of this individua!
questioning, and as a typical example for
ease of reference, the individual! voir dire of
one of the twelve jurors, John Hoffar (Tr.
928-49), is set out as Appendix B to this
opinion. (Hereafter Hoffar Voir Dire. The
other eleven ;:rors were Gladys Carter (Tr
607-19), Roy Carter (Tr. 619-34), Ruth
Gould (Tr. 832-51), Anita King (Tr. 1075-
97), Marjorie M. Milbourn (Tr. 1172-1216),
Vanetta M. Metoyer (Tr. 1216-29), Dock
Reid (Tr. 1350-61), Jane M. Ryon (Tr. 1420-
42), Thelma L. Wells (Tr. 1673-96), Sandra
Y. Young (Tr. 1876-1901), and Helen D
Pratt (Tr. 1901-17).
1. The Role of Voir Dire and the Facts of
Rideau
The first and singular aspect of the voir
dire is that it confirms the pervasiveness of
the coverage of this case in Washington,
D.C. The trial judge says flatly:
Think of it. The publicity that break-
in got. I said, this is incredible.
Tr. 487 (emphasis added). And:
If anybody gets on the stand and tells
me they never heard of this case or read
about it, I will exercise a challenge for
cause. That is how | feel about it.
Id. (emphasis added).
The heart of the problem thus created is
encapsulated by the authors of the ABA
A-H-9
UNITED STATES v. HALDEMAN 153
Cie as 680 F.2d 31 (1976)
Standards Relating to Fair Tria! and Free
Press:
It has in many jurisdictions been common
practice for denial of such a [change of
venue] motion to be sustained if a jury
meeting prevailing standards could be
obtained. There are difficul-
ties with the approach many
existing standards of acceptability toler-
ate considerable knowledge of the case
and even an opinion on the merits on the
part of the prospective juror. And even
under a more restrictive standard, there
wil] remain the problem of obtaining ac-
curate answers on voir dire—is the juror
conscious!y or subconsciously harboring
prejudice against the accused resulting
from widespread news coverage in the
community’? Thus if change of venue
and continuance are to be of value, they
should not turn on the results of the voir
dire; rather they should constitute inde-
pendent remedies designed to assure fair
tria] when news coverage has raised sub-
stantia] doubts about the effectiveness of
the voir dire standing alone.
ABA Standards, supra p. 21, at 126 (empha-
sis added).
The indisputable fact in the majority's
own analysis of the voir dire is that the
exposure of the venire and fina) jurors to
prejudicia] pretrial publicity in this case
was at least as heavy as the exposure of the
venire and final jury in Rideau. We al-
ready know, from the unrefuted record,
that not only had well over two third
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