# Petition — Lukefahr v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0881%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1980 - **Citation:** 444 U.S. 1012 ## Text ; ‘EILED | 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 SfOY4 TUS ty 1NOI4O sus_DOG U] poBupuy, VL yom SO1200g [NZ INDeg sO; @Pj40j4 ‘Asi Owousg 8U01}420§ ents seBog o¢ - $640) CL O214g , 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 4yBnosg yu] sepsny ejyoyyus nig persunouuy s4sng LLGL'SL 46q05909 acca an < - : = S == Gallahassee Democrat “ Td Year No 42 Floride'e Cagnes Newapapes Saturday, February 11,1978 = 16 Convicts lived it up here — while they could ies [tat ane icy! fe gua ty a el i a Ht es Hit eat dade Ba tiees alr at Hot i ey ly Wea Het iy it A-E-2 A-E-1 Ta ‘tl ' Lai i at EL i i Sefiie a Tt Hie anon in es [Ga O4) 1eH) qnogSnosq) peullel2 ae ynoqa eBpn{ o hq tytn 8} Geoq 29400 pry oy pres 308. poe wed be Acer g 9108 juewus0A08 jo eeneved feinbow peysenibes Aewsowe’ * Aepeeupen jude 1y8j09N7 UEAeIg ‘PASC S}UBPLS;EQ of EE Sseey mat atanmedbanee. ae yeprus om) 8 Curses peyrese!) SMOU |8907} sjuawnse jeu -A08 og] Go qIETIE EY JO sem 203 107 2[1Gse S890) 40} SuOTINI}eU) PUT JLVOMIEF JassvyLyep + 0101 ‘Cz Aseruqes ‘Aspemu, ~~ > 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0881%3A1. Public record. Not legal advice.