Petition — Patton v. Yount

Office -

R 9 e 9 & Pitan U.S.

JUN 29 1993

No. ALEXANDER L. stevas.

— es

in the Supreme Court of the

UnjtedD States

Term,

ERNEST S. PATTON, Superintendent, SCI—

CAMP HILL, and HARVEY BARTLE, III,

Attorney General of the Commonwealth of

Pennsylvania,

Petitioners

v.

JON E. YOUNT,

Respondent

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

THOMAS F. MorRGAN,

District Attorney of Clearfield

County

F. CORTEZ BELL, III,

Assistant District Attorney of

Clearfield County

P. O. Box 887

Clearfield, PA 16830

(814) 765-9669

Counsel for Petitioners

Murrelle Printing Co., Box 100, Sayre, Pa. 18840—(717) 888-2244

QUESTIONS PRESENTED FOR REVIEW

1. Whether pre-trial publicity of Respondent's

retrial infringed on his ability to select and impanel a

fair and impartial jury in light of the provisions of the

Sixth Amendment to the Constitution of the United

States.

2. Whether a federal court in reviewing a state

court conviction by way of a habeas corpus petition

may disregard the sworn testimony of jurors to remain

impartial and find that the defendant was denied a

fair trial on the basis that the jurors were biased by

pre-trial publicity.

3. Whether the federal court of appeals im-

properly applied the standards set forth in Marshall v.

United States, 360 U.S. 310 (1959), as to juror prej-

udice to a state court conviction thereby violating the

holding set forth in Murphy v. Florida, 421 U.S. 794

(1975).

TABLE OF CONTENTS

fae 2 PAGE

Questions Presented for Review............... i

I cd cits cc ect c cee des iii

Citations to Opinions Below ................. ]

Statement of Jurisdiction .................... 2

Constitutional Provision Involved ............. 3

I cece cer esvec nse 4

Reasons for Allowance of the Writ of Certiorari 8

EO 12

APPENDIX:

Opinion of the United States Court of Ap-

peals for the Third Circuit............. la

Opinion of the United States District Court

for the Western District of Pennsylvania. 54a

Order of the United States District Court

for the Western District of Pennsylvania. §8la

Opinion of the Supreme Court of Pennsyl-

SS 82a

Judgment of the United States Court of Ap-

peals for the Third Circuit............. 100a

Order of the United States Court of Ap-

peals for the Third Circuit Staying Is-

suance of Certified Judgment Until June

CEs So 5 pave sidp cli.cserrsecs 102a

TABLE OF AUTHORITIES

PAGE

FEDERAL:

Dobbert v. Florida, 432 U.S. 282 (1977)....... 9

Irvin v. Dowd, 366 U.S. 717 (1961).......... 8, 9, 10

Marshall v. United States, 360 U.S. 310 (1959) .11, 12

Martin v. Warden, 653 F.2d 799 (3d Cir., 1981),

cert. denied, 454 U.S. 1151 (1982)...... 9, 10, ll

Miranda v. State of Arizona, 384 U.S. 436

Se ei ke eres tune haku ae te 4

Murphy v. Florida, 421 U.S. 794 (1975) ....... 8, 9

10, 11, 12

Sumner v. Mata, 449 U.S. 539 (1981) ......... 10

United States v. Provenzano, 620 F.2d 985 (3d

Cir., 1980), cert. denied, 449 U.S. 899

ROM Pre ee Fig emer re rey ey 10

Yount v. Patton, 537 F. Supp. 873 (1982),

vacated F.2d UNE jr hh a bids 9, 10, 11

STATE:

Commonwealth v. Yount, 435 Pa. 276, 256

A.2d 464 (1969), cert. denied, 397 U.S. 925

GREED oa u's Sh'chu'n Gide Kae bee tien wassies 5

Commonwealth v. Yount, 455 Pa. 303, 314

Pi aa b onk b6 Oks abe Rel 5, 6, 8, 9

STATUTE:

ee ee I Sx 64 tes 6 n'a a's x eee ees 6, 10

Citations to Opinions Below 1

CITATIONS TO OPINIONS BELOW

The opinion of the United States Court of Appeals

for the Third Circuit has not yet been reported. It is,

however, set forth in the Appendix at la.

The opinion of the United States District Court

for the Western District of Pennsylvania is reported at

537 F. Supp. 873 (W.D. Pa., 1982), and is set forth in

the Appendix at 54a.

The opinion of the Supreme Court of Pennsylva-

nia is reported at 455 Pa. 303, 314 A.2d 242 (1974),

and is set forth in the Appendix at 82a.

2 Statement of Jurisdiction

STATEMENT OF JURISDICTION

On April 22, 1982, the United States District

Court for the Western District of Pennsylvania denied

Respondent’s petition for a writ of habeas corpus with

prejudice. Respondent appealed this order to the

United States Court of Appeals for the Third Circuit

which on May 10, 1983 vacated the judgment of the

District Court and directed that the writ of habeas

corpus should be granted unless the Commonwealth

affords Yount with a new trial within a reasonable

period of time. From such an order granting a new

trial, the Petitioners now file a petition for writ of cer-

tiorari with this Court.

On May 25, 1983, pursuant to motion of the Peti-

tioners herein and Rule 41(b) of the Federal Rules of

Appellate Procedure, the United States Court of Ap-

peals for the Third Circuit entered an order staying is-

suance of the certified judgment to June 30, 1983. It

was further stated that if during the period of the stay

it received notification from the Clerk of the Supreme

Court that a petition for writ of certiorari had been

filed, the stay would continue until final disposition by

the Supreme Court.

The jurisdiction of the Supreme Court to review

the decision of the United States Court of Appeals for

the Third Circuit is invoked under 28 U.S.C. §1254.

Constitutional Provision Involved 3

CONSTITUTIONAL PROVISION INVOLVED

The Constitutional provision which is involved in

the instant matter being the Sixth Amendment to the

United States Constitution which provides:

Amendment VI

In all criminal prosecutions, the accused shall

enjoy the right to a speedy and public trial, by an

impartial jury of the State and district wherein

the crime shall have been committed, which

district shall have been previously ascertained by

law, and to be informed of the nature and cause

of the accusation; to be confronted with the

witnesses against him; to have compulsory process

for obtaining witnesses in his favor, and to have

the Assistance of Counsel for his defence.

4 Statement of the Case

STATEMENT OF THE CASE

On April 28, 1966, the body of Pamela Sue

Rimer, a senior a Dubois Area High School who resid-

ed near Luthersburg, Pennsylvania was found in a

wooded area adjoining a red-dog road leading from

her school bus stop to her rural home. The autopsy

revealed that the cause of death was due to shock, loss

of blood and strangulation due to an excess of blood in

her lungs. Examination revealed numerous wounds

about the girl’s head caused by a blunt weapon, three

slashes across her throat and cuts of the fingers on her

left hand, caused by a sharp instrument. When found,

the girl’s body was not fully clothed, in that one stock-

ing and one shoe had been removed and the stocking

tied about her neck.

Respondent, Jon E. Yount, was arrested April 29,

1966, on charges of murder and rape filed to No. 2

May Sessions 1966 in the Court of Quarter Sessions of

Clearfield County, Pennsylvania. The case proceeded

to trial on September 28, 1966, and on October 7,

1966, the Respondent was pronounced guilty by jury

verdict of murder of the first degree and rape. The

jury further pronounced sentence as life imprisonment.

Following the denial of post-trial motions, Respondent

appealed from the judgment of sentence to the

Supreme Court of Pennsylvania. The Supreme Court

of Pennsylvania reversed the conviction and ordered a

new trial on the basis of Miranda v. State of Arizona,

384 U.S. 436 (1966), which had been decided in the

Statement of the Case 5

period of time between the date of Respondent’s arrest

and the date of trial. Commonwealth v. Yount, 435

Pa. 276, 256 A.2d 464 (1969). The Commonwealth

appealed the ruling of the Pennsylvania Supreme

Court with certiorari having been denied at 397 U.S.

925 (1970).

Prior to retrial, hearings were held on or about

June 4, 1970, July 29, 1970 and August 17, 1970 with

regard to Respondent’s pre-trial motions as to change

of venue on the basis of inability to select a fair and

impartial jury and suppression of confessions and

evidence obtained therefrom. The Court by memoran-

dum and order filed September 21, 1970 denied the

change of venue request and indicated that it would

be bound by the guidelines as to suppression of

evidence as set forth by the Supreme Court of Pennsy]-

vania in its opinion rendered in the instant case found

at Commonwealth v. Yount, 435 Pa. 276, 256 A.2d

464 (1969), cert. denied, 397 U.S. 925 (1970).

Jury selection for the retrial commenced on

November 4, 1970, with the actual trial beginning on

November 17, 1970. A second petition for change of

venue was filed on November 13, 1970, during jury

selection for the instant case, but was denied by

memorandum and order of the Court dated November

14, 1970. On November 20, 1970 the jury returned a

verdict of guilty of murder of the first degree. The

rape charge was not tried by the Commonwealth at

retrial. After denial of post-trial motions, the Respon-

dent was formally sentenced on March 26, 1973. The

judgment of sentence was appealed to the Supreme

Court of Pennsylvania. That Court by opinion found

at Commonwealth v. Yount, 455 Pa. 303, 314 A.2d

6 Statement of the Case

242 (1974), affirmed the judgment of sentence finding

that Respondent had not been denied his right to a

fair and impartial jury.

The Respondent, pursuant to 28 U.S.C. §2254,

filed a petition for writ of habeas corpus pro se with

the United States District Court for the Western

District of Pennsylvania on or about January 5, 1981.

One issue within the habeas corpus petition dealt with

whether Respondent had been able to select a fair and

impartial jury. After counsel had been appointed to

represent the Respondent and an answer had been

filed, evidentiary hearings were held before the

Honorable Robert C. Mitchell, United States

Magistrate on November 3, 1981 and December 28,

1981 at which time both parties placed testimony on

record with regard to the merits of the petition.

On February 12, 1982, the Honorable Robert C.

Mitchell recommended that a writ of habeas corpus

issue on the basis that the respondent, herein, could

not have received a fair and impartial jury trial within

Clearfield County. The Petitioners herein, filed objec-

tions to the magistrate’s report and recommendations

on February 19, 1982. After oral argument before the

Honorable Donald E. Ziegler, United States District

Judge, the petition for writ of habeas corpus was

denied with prejudice by opinion and order dated

April 22, 1982. The District Court expressly found

that Yount had not been denied his right to select and

impanel a fair and impartial jury within Clearfield

County. On May 10, 1983, following the filing of an

appeal and the presentation of oral argument, the

United States Court of Appeals for the Third Circuit

vacated the judgment of the District court and held

Statement of the Case 7

that a writ of habeas corpus should issue unless the

Commonwealth affords Yount a new trial within a

reasonable period of time. The reason for such being

that Yount had been denied his right to a fair trial by

an impartial jury. The Petitioners now file this peti-

tion for writ of certiorari seeking review of the deci-

sion of the United States Court of Appeals for the

Third Circuit.

8 Reasons for Allowance of the

Writ of Certiorari

REASONS FOR ALLOWANCE OF THE WRIT OF

CERTIORARI

The instant case presents to this Court a matter in

which the United States Court of Appeals for the

Third Circuit has rendered a decision on a federal

question in conflict with that reached by the Supreme

Court of Pennsylvania. Further, the Court of Appeals

decision appears to be in conflict with the holding of

this Court in Murphy v. Florida, 421 U.S. 794 (1975).

The Respondent herein, Jon E. Yount, was con-

victed in 1970, after retrial in the Court of Common

Pleas of Clearfield County, Pennsylvania of the offense

of murder of the first degree. Within his post-trial mo-

tions and appeal to the Supreme Court of Pennsylva-

nia, Yount raised the issue that his Sixth Amendment

right to select a fair and impartial jury had been in-

fringed upon by the pre-trial publicity to which the

venire had been exposed. The Supreme Court of Penn-

sylvania in applying the test established by this Court

in Irvin v. Dowd, 366 U.S. 717 (1961), found that:

“These findings (no excessive pre-trial publicity) fully

supported by the record, do not sustain appellant’s

claim, and the Court properly denied appellant’s mo-

tion for a change of venue predicated on this theory.”

Commonwealth v. Yount, 455 Pa. 303, 314 A.2d 242,

247 (1974). The Court further stated, quoting Irvin v.

Dowd, that: “Neither does the voir dire, as appellant

argues, reveal a ‘clear and convincing’ build-up of

Reasons for Allowance of the 9

Writ of Certiorari

prejudice or a “pattern of deep and bitter prejudice”

shown ... throughout the community’ which would re-

quire a change of venue. Irvin v. Dowd, 366 U.S.

717, 725, 727, 81 S.Ct. 1639, 1644, 1645 [6 L.Ed. 2d

751] (1961).” Commonwealth v. Yount, 455 Pa. 303,

314 A.2d 242, 247 (1974).

In 1981, some ten (10) years after his conviction,

the Respondent began the instant writ of habeas cor-

pus action seeking to challenge his conviction and the

decision made by the Supreme Court of Pennsylvania.

When reviewing on assertion as to pre-trial publicity

and change of venue in a habeas corpus proceeding

from a state conviction, the federal court’s review nar-

rows considerably. “A state court conviction may be

overturned in a habeas proceeding only where the de-

fendant shows that the publicity had been so extreme

as to cause actual prejudice to a degree rendering a

fair trial impossible or that the press coverage has ‘ut-

terly corrupted’ the trial. (Emphasis added.) Murphy

v. Florida, 421 U.S. 794, 798, 95 S.Ct. 2031, 2035, 44

L.Ed. 2d 589 (1974). See also Dobbert v. Florida, 432

U.S. 282, 303, 97 S.Ct. 2290, 2303, 53 L.Ed. 2d 344

(1977).” Martin v. Warden, 653 F.2d 799, 805 (3d

Cir. 1981), cert. denied, 454 U.S. 1151 (1982).

The United States District Court for the Western

District of Pennsylvania after oral argument and

review of the record of both the trial court and the

federal magistrate found that Yount had failed to

establish “publicity so extreme as to cause actual prej-

udice rendering a fair trial impossible in Clearfield

County, or that the coverage utterly corrupted the

judicial process.” Yount v. Patton, 537 F. Supp. 873,

10 Reasons for Allowance of the

Writ of Certiorari

877 (1982). The District Court further noted that

under the teaching of Sumner v. Mata, 449 U.S. 539

(1981), the findings of a state court judge as to the im-

pact of pre-trial publicity are to be held presumptively

correct. See 2'so 28 U.S.C. §2254(d).

The law seems well settled that, “Pre-trial publici-

ty exposure will not automatically taint a juror.”

United States v. Provenzano, 620 F.2d 985, 995 (3d

Cir., 1980), cert. denied, 449 U.S. 899 (1980). Martin

v. Warden, 653 F.2d 799, 804 (3d Cir., 1981), cert.

denied, 454 U.S. 1151 (1982). “Even if a juror has

heard about a case and has read allegations of a de-

fendant’s guilt, the juror nonetheless may serve if he or

she is capable of laying aside prior impressions and

rendering a fair verdict based on the evidence

presented at trial.” United States v. Provenzano, 620

F.2d 985, 995 (3d Cir., 1980), cert. denied, 449 U.S.

899 (1980). See also Irvin v. Dowd, 366 U.S. 717, 723

(1961), Murphy v. Florida, 421 U.S. 794, 800 (1975).

With regard to the instant case, the record of voir

dire at the second trial indicates that of the twelve

(12) jurors who actually served on the panel, which

heard Yount’s case, nine (9) were accepted for che jury

by both the Commonwealth and the defense withewt

challenges of any form being made. Each one of these

nine persons indicated that they had no opinion as to

Yount’s guilt or innocence. Of the three (3) persons

who were challenged, two (2) indicated they had no

opinion whatsoever and the remaining one (1),

although stating he had an opinion, indicated he

would enter the jury box with an open mind and that

his verdict would be based on the evidence presented

Reasons for Allowance of the 1]

Writ of Certiorari

at trial. The voir dire fails to demonstrate the actual

existence of such an opinion in the minds of any one

of the jurors such as would evidence or bring about

the partiality of the panel.

Regardless of the sworn testimony during voir

dire, the United States Court of Appeals for the Third

Circuit in finding contrary to the Supreme Court of

Pennsylvania and the United States District Court for

the Western District of Pennsylvania held that “

despite their assurances of impartiality, the jurors

could not set aside their opinions and render a verdict

based solely on the evidence presented in court. Peti-

tioner has shown that the pretrial publicity caused ac-

tual prejudice to a degree rendering a fair trial im-

possible in Clearfield County.” Yount v. Patton, Ap-

pendix at page 32a. The Court of Appeals, by its

holding, is applying the standards originally set forth

in Marshall v. United States, 360 U.S. 310 (1959). The

Marshall standard clearly allows for a federal court to

find that when persons learn from news sources infor-

mation with a high potential for prejudice such per-

sons may be presumed to be prejudiced despite their

assurance that they could remain impartial. Under the

federal system, the representations of the jury

members at Yount’s trial, even though under oath,

may be set aside.

The Marshall standard, however, is wholly inap-

plicable to a state court proceeding. Murphy v.

Florida, 421 U.S. 794, 798 (1975). Martin v. Warden,

653 F.2d 799, 804-805 (3d Cir., 1981), cert. denied,

454 U.S. 1151 (1982). Justice Marshall in Murphy

stated: “In the face of so clear a statement, it cannot

12 Reasons for Allowance of the

Writ of Certiorari

be maintained that Marshall was a constitutional rul-

ing now applicable, through the Fourteenth Amend-

ment, to the States.... We cannot agree that Marshall

has any application beyond the federal courts.” Mur-

phy v. Florida, 421 U.S. 794, 799 (1975).

The decision rendered by the United States Court

of Appeals for the Third Circuit is therefore not only

contrary to that previously reached by the Supreme

Court of Pennsylvania and the United States District

Court for the Western District of Pennsylvania but

further is contrary to the holding of this Court in

Murphy v. Florida, 421 U.S. 794 (1975). The evidence

presented as to publicity about the instant case,

although indicating that the case was indeed publi-

cized, does not evidence that the publicity was so ex-

treme as to cause actual prejudice or that the publicity

utterly corrupted the judicial process such that a fair

and impartial jury could not be impaneled. The sworn

testimony of the jurors may not be disregarded.

CONCLUSION

For the foregoing reasons, a writ of certiorari

should issue to review the judgment and opinion of the

United States Court of Appeals for the Third Circuit.

Respectfully submitted,

Thomas F. Morgan,

District Attorney of

Clearfield County

Counsel for Petitioners

Opinion, Court of Appeals la

APPENDIX

UNITED STATES COURT OF APPEALS

For the Third Circuit

No, 82-5372

JON E. YOUNT, Appellant

v

ERNEST S. PATTON, SUPERINTENDENT, SCI—CAMP

HILL, and HARVEY BARTLE III, ATTORNEY

GENERAL OF THE COMMONWEALTH OF PENN.-

SYLVANIA, Appellees

Appeal From the United States District Court for the

Western District of Pennsylvania — Pittsburgh

D.C. Civil No, 81-234

Argued December 17, 1982

Before: Hunter, GartuH, Circuit Judges and Srern,*

District Judge

Opinion filed May 10, 1983°**

George E. Schumacher (Argued)

Federal Public Defender

590 Centre City Tower

650 Smithfield Street

Pittsburgh, PA 15222

Attorney for Appellant

* Honorable Herbert J. Stern, United States District Judge

for the District of New Jersey, sitting by designation.

** Due to illness, Judge Garth separately filed his opinion

concurring in the judgment on June 10, 1983.

2a Opinion, Court of Appeals

F. Cortez Bell, III (Argued)

Assistant District Attorney

Thomas F. Morgan

District Attorney

Office of the District Attorney

P.O. Box 887

Clearfield, PA 16830

Attorneys for Appellees

OPINION OF THE COURT

HUNTER, Circuit Judge:

1. Petitioner Jon E. Yount was convicted in 1966 of

first degree murder and rape in the Court of Oyer and

Terminer and General Jail Delivery of Clearfield County,

Pennsylvania. On direct appeal the Pennsylvania Su-

preme Court determined that petitioner had not received

adequate warnings against self-incrimination. It re-

versed the judgment of sentence and granted a new

trial. Commonwealth v. Yount, 435 Pa. 276, 256 A.2d

464 (1969), cert. denied, 397 U.S. 925 (1970) (“Yount

I"). After a retrial before the same court, petitioner was

convicted of first degree murder and was again sen-

tenced to life imprisonment. The Pennsylvania Supreme

Court on direct appeal affirmed the judgment of sen-

tence. Commonwealth v. Yount, 455 Pa. 303, 314 A.2d

242 (1974) (“Yount II").

2. In 1981 petitioner filed a petition for a writ of ha-

beas corpus in United States District Court.' Petitioner

alleged, inter alia, that his conviction had been obtained

in violation of his fifth and fourteenth amendment privi-

lege against self-incrimination and his sixth and four-

1. The petition was initially filed in the Middle District of

Pennsylvania, but was transferred to the Western District of Penn-

svivania pursuant to 28 U.S.C. §2241(d) (1976).

Opinion, Court of Appeals 3a

teenth amendment right to a fair trial by an impartial

jury.’ The federal magistrate concluded that petitioner's

privilege against self-incrimination had not been violat-

ed, but recommended that the petition be granted be-

cause petitioner had been denied a fair and impartial

jury. App. at 124a-41a. The district court agreed on the

former issue, rejected the magistrate's recommendation

on the latter issue, and denied the petition. Yount v.

Patton, 537 F. Supp. 873 (W.D. Pa. 1982).

3. We agree with the district court that petitioner's

privilege against self-incrimination was not infringed.

We conclude, however, that the petitioner's right to trial

by a fair and impartial jury was violated. We will there-

fore remand that portion of the case to the district court.

I. SELF-INCRIMINATION

A. Facts®

4. During the early evening of April 28, 1966, the

body of Pamela Rimer, an 18-year old high school stu-

dent, was found in a wooded area near her home in

2. None of petitioner's other allegations are before us. Petition-

er does not appeal the district court's rejection of his challenges to

the trial court's instructions on the degrees of homicide and on the

murder weapon. See Yount v. Patton, 537 F. Supp. 873, 875 (W.D.

Pa. 1982); app. at 134a. All other claims by petitioner, including his

attack on the use of character evidence at trial, his allegation of a

prejudicial charge by the court, and his claim of ineffective assis-

tance of counsel, were deleted on petitioner's motion after the dis-

trict court determined that the claims had not been presented to the

courts of Pennsylvania for their initial consideration. See 537 F.

Supp. at 874-75; see app. at 126a-27a, 154a.

3. The federal magistrate adopted the statement of the facts

given in the opinion of the Pennsylvania Supreme Court in Yount

11, 455 Pa. at 306-08, 314 A.2d at 244-45. App. at 128a. We too adopt

that statement. In addition we on occasion cite directly to the record

for certain details omitted in the supreme court's summary. Unless

otherwise noted, those details are undisputed.

da Opinion, Court of Appeals

Luthersburg, Clearfield County. There were numerous

wounds about her head, apparently caused by a blunt in-

strument. There were also cuts caused by a sharp instru-

ment on her throat and neck. One of her stockings was

knotted and tied around her neck. An autopsy showed

that she had died of strangulation when blood from the

throat and neck wounds was drawn into the lungs. Ex-

cept for her stocking and shoe she remained fully

clothed. The autopsy revealed no indication that she had

been sexually assaulted.

5. Neighbors gave state police a description of a sta-

tion wagon which they had seen at approximately the

time and place at which the body was found. E.g., Testi-

mony of Trial beginning November 17, 1970, at 143-48

(“T.T."). Sometime after two o'clock on the morning of

April 29, 1966, state policemen learned that petitioner,

the victim's high school mathematics teacher, had on

prior occasions been seen in a station wagon fitting that

description. T.T. at 290-93; Transcript of Proceedings —

August 17, 1970, at 17-18, 20-21 (“T.P.").

6. At approximately 5:45 that morning, petitioner

voluntarily appeared at the State Police Substation in

DuBois, Clearfield County. The occupants of the substa-

tion had participated in the investigation of the Rimer

homicide, T.T. at 198-201, 203-05, 255-56, but had gone

to sleep unaware of any link between the homicide and

petitioner or his vehicle. T.T. at 275, 277; T.P. at 13, 20.*

4. Petitioner asserts that before he came to the substation, the

state policemen there knew that he and his vehicle had been linked

to the scene of the crime. Appellant's Brief at 33. The trial court

found, however, that when petitioner appeared at the substation

“there was no knowledge on the part of the Police [at the substation]

that he ‘was the one they were looking for.'" App. at 754a The

Pennsylvania Supreme Court stated that the state policemen who

had discovered that petitioner's automobile fit the neighbors’ de-

scription had been working entirely separately and in a different lo-

cation. Yount /1, 455 Pa. at 309-10, 314, 314 A.2d at 246, 248.

Opinion, Court of Appeals 5a

Petitioner rang the doorbell. A trooper awoke, opened

the door and asked whether he could be of assistance.

Petitioner stated, “I am the man you are looking for.”

The trooper asked petitioner to repeat what he had said,

app. at lla; T.T. at 250-51, and then asked whether peti-

tioner was referring to “the incident in Luthersburg.”

Petitioner said yes. The trooper then asked petitioner to

come in and be seated.

7. Leaving petitioner unattended, the trooper went

to a back bedroom and roused a detective and a second

trooper. The first trooper informed them that “there was

a man in the front that said we are looking for him” in

connection with the Luthersburg incident. See TT. at

276; T.P. at 6. The first trooper then returned to the

front office where petitioner had removed his coat, hat

and gloves. The trooper asked petitioner for his identifi-

cation. Petitioner gave the trooper his wallet, which the

trooper returned after removing petitioner's automobile

operator's license. T.T. at 252.

8. Shortly thereafter, the detective and the second

trooper entered the front office. The detective was hand-

ed petitioner's license and learned that petitioner was

Jon Yount. App. at 12a; T.T. at 259, 262-63, 271. The

detective requested that petitioner be seated inside a

smaller adjacent office, and gave petitioner something to

eat. See Yount I, 435 Pa. at 278, 256 A.2d at 465; T.P. at

15. The detective asked, “Why are we looking for you?”

Petitioner replied, “I killed that girl.” Upon hearing that

answer, the detective inquired, “What girl?”, and peti-

tioner responded, “Pamela Rimer.”

9. The detective then asked, “How did you kill this

girl?” Petitioner answered, “I struck her with a wrench

and I choked her.” At that time the detective undertook

to advise petitioner of his rights. The detective, however,

failed to tell petitioner of his right to court-appointed

counsel if he could not afford his own attorney. The de-

tective then conducted an interrogation regarding the

6a Opinion, Court of Appeals

details of the crime. At some point the second trooper

searched petitioner and confiscated his penknife. T.T. at

265-66, 267-68, 272-73.° Petitioner gave his first writteri

confession to the detective. Later the district attorney,

after giving similarly inadequate warnings, questioned

petitioner and obtained another written confession.

B. State Proceedings and Proceedings Below

10. Before the first trial petitioner moved to sup-

press his statements and confessions as violative of

Miranda v. Arizona, 384 U.S. 436 (1966). After a hear-

ing the motion was denied. The petitioner's statements

anc confessions were admitted in the first trial over peti-

tioner’s objections.

11. The Pennsylvania Supreme Court held that the

warnings given by the detective and district attorney

were inadequate under Miranda. Yount I, 435 Pa. at

279, 256 A.2d at 465 (Roberts, J., plurality opinion). The

court rejected the Commonwealth's argument that the

confessions were volunteered. “After indicating a will-

ingness to talk, [petitioner] was interrogated about de-

tails of the crime, and his formal confession followed.”

435 Pa. at 279-80, 256 A.2d at 465 (emphasis in origi-

nal); see 435 Pa. at 281, 256 A.2d at 468 (Jones, C.]J.,

concurring). The court found the confessions invalid

and granted a new trial. 435 Pa. at 281, 256 A.2d at 466.

12. Prior to the second trial petitioner requested

that his oral and written statements be suppressed. The

trial court on the authority of Yount I suppressed the

written confessions, as well as the question “How did

5. Petitioner argues that the state police searched him and

confiscated his penknife before the detective asked, “Why are we

looking for you?” Appellant's Brief at 32. Although there have been

no explicit factual findings as to when the search occurred, petition-

er's assertion has been implicitly rejected in the factual findings and

holding of the state trial court and the district court, and is not fairly

supported by the record

Opinion, Court of Appeals 7a

you kill this girl?” and its answer. The trial court ruled,

however, that petitioner’s statement “I killed that girl”

and his identification of “that girl” as “Pamela Rimer”

were admissible under Yount I. App. at 748a, 755a. It

concluded that petitioner’s statements were made before

petitioner was in custody. App. at 755a.

13. On appeal the Pennsylvania Supreme Court did

not determine whether petitioner was in “custody” when

he made the statements to the detective. Yount II, 455

Pa. at 311 n.4, 314 A.2d at 247 n.4. Instead it ruled that

the statements were volunteered and not the product of

interrogation. The court said that the detective’s first

question, “Why are we looking for you?”, was simply an

extemporaneous response “of neutral character.” 455

Pa. at 310, 314 A.2d at 246. In the court's view the detec-

tive’s question “What girl?” after petitioner had respond-

ed, “I killed that girl,” was merely “a clarifying inquiry.”

Id. The supreme court therefore concluded that the

questions were not calculated, expected or likely to elicit

an incriminating response. 455 Pa. at 309, 314 A.2d at

246.

14. In his petition for a writ of habeas corpus, peti-

tioner again argued that his fifth and fourteenth amend-

ment privilege against self-incrimination had been vio-

lated by the admission of his responses to the detective’s

questions. The magistrate ruled that the responses were

properly admitted because only after those responses,

when “the police recognized that petitioner was present

to confess his participation in a crime, did his presence

become custodial.” App. at 132a. The magistrate did not

consider whether the questions constituted interroga-

tion. The district court adopted the magistrate’s find-

ings. 537 F. Supp. at 875.

C. Discussion

15. Miranda held that unless the government has

advised a defendant of his rights, it cannot put into evi-

8a Opinion, Court of Appeals

dence statements stemming from the “custodial interro-

gation” of the defendant. 384 U.S. at 444. The Supreme

Court defined “custodial interrogation” to mean

questioning initiated by law enforcement officers

after a person has been taken into custody or other-

wise deprived of his freedom of action in any signifi-

cant way.

Id. (note omitted).

16. Petitioner argues on appeai that his statements

“| killed that girl” and “Pamela Rimer” must be excluded

as the products of custodial interrogation. He contends

that the detective’s questions constituted “interroga-

tion,” and asserts that the state policemen would not

have allowed him to leave the substation when the ques-

tions were posed. We need not consider whether the

questions “Why are we looking for you?” and “What

girl?” constituted interrogation under Miranda because

we conclude that petitioner was not in “custody” until

after he had answered those questions. See Beckwith v.

United States, 425 U.S. 341, 345-46 (1976); United

States v. Mesa, 638 F.2d 582, 588 (3d Cir. 1980) (opin-

ion of Seitz, C.J.).

17. To determine whether an individual is in custo-

dy, we use the “objective test of whether the ‘govern-

ment has in some meaningful way imposed restraints on

[a person's] freedom of action.’ Steigler v. Anderson,

496 F.2d 793, 798 (3d Cir.) (quoting United States v.

Jaskiewicz, 433 F.2d 415, 419 (3d Cir. 1970), cert. de-

nied, 400 U.S. 1021 (1971)), cert. denied, 419 U.S. 1002

(1974). Where, as here, the individual has not been

openly arrested when the statements are made,

something must be said or done by the authorities,

either in their manner of approach or in the tone or

extent of their questioning, which indicates that

they would not have heeded a request to depart.

Id. at 799 (quoting United States v. Hall, 421 F.2d 540,

545 (2d Cir. 1969), cert. denied, 397 U.S. 990 (1970));

Opinion, Court of Appeals 9a

accord Oregon v. Mathiason, 429 U.S. 492, 495 (1977)

(per curiam); see Mesa, 638 F.2d at 587 n.4 (opinion of

Seitz, C.J.). When the questioning occurs in a police sta-

tion we must scrutinize the circumstances surrounding

the statements with extreme care for any taint of psy-

chological compulsion or intimidation. Steigler, 496 F.2d

at 799.

18. In making our determination, we are mindful of

the Supreme Court's caution that “custody” must not be

read too broadly:

[Pjolice officers are not required tc administer

Miranda warnings to everyone whom they ques-

tion. Nor is the requirement of warnings to be im-

posed simply because the questioning takes place in

the station house, or because the questioned person

is one whom the police suspect.

Mathiason, 429 U.S. at 495; accord Steigler, 496 F.2d at

799. In particular we note the Court's statement in

Miranda:

There is no requirement that police stop a person

who enters a police station and states that he wishes

to confess to a crime, or a person who calls the po-

lice to offer a confession or any other statements he

desires to make. Volunteered statements of any kind

are not barred by the Fifth Amendment and their

admissibility is not affected by our holding today.

384 U.S. at 478 (note omitted).

19. Petitioner came voluntarily and on his own ini-

tiative to the substation. The state police did not know

why he was there. The first trooper left petitioner

unattended while petitioner on his own accord removed

his outer clothing. The detective testified that before he

posed the questions he would have returned petitioner's

operator's license and allowed him to leave had petition-

er so requested. T.P. at 15-16. On this record we have no

difficulty in concluding that petitioner was not in custo-

dv when the detective asked, “Why are we looking for

10a Opinion, Court of Appeals

you?” Sullivan v. Alabama, 666 F.2d 478, 482 (11th Cir.

1982); see Mathiason, 429 U.S. at 495; Orozco v. Texas,

394 U.S. 324, 325 (1969); Barfield v. Alabama, 552 F.2d

1114, 1118 (Sth Cir. 1977). The admission of petitioner's

respons? to that question therefore did not violate his

fifth and fourteenth amendment privilege against

self-incrimination.

20. Petitioner's response, “I killed that girl,” was

obviously highly incriminating. Although such an in-

criminating response undoubtedly heightened the de-

tective’s suspicion, it is police compulsion, and not the

strength of police suspicions, which places a suspect in

custody. See Beckwith, 425 U.S. at 346-47.

The more cause for believing the suspect commit-

ted the crime, the greater the tendency to bear

down in interrogation and to create the kind of at-

mosphere of significant restraint that triggers

Miranda .... But this is simply one circum-

stance, to be weighed with all the others.

Steigler, 496 F.2d at 799-800 (quoting Hall, 421 F.2d at

545).

21. The detective testified that petitioner remained

free to leave the substation when the detective asked,

“What girl?” T.P. at 5. The detective explained that only

after petitioner gave the name of the girl and how he had

killed her could the detective determine that the peti-

tioner was not merely seeking personal aggrandizement

by confessing to a sensational crime in which he had no

part. T.P. at 3-4. Petitioner, on the other hand, does not

allege that the state police did “anything different” after

he had stated, “I killed that girl.” See Brief for Petitioner

on Petition for Writ of Habeas Corpus at 19-20, 22-23

(“Brief for Petitioner”). Instead petitioner takes the posi-

tion that he was in custody from the moment he identi-

fied himself, and that “either all the statements were vol-

untary or all were involuntary.” Id. at 19; see Appellant's

Brief at 33. In addition, we can find no evidence that the

Opinion, Court of Appeals lla

detective at that juncture used any additional “force or

intimidation, physical or psychological, actual or im-

plied,” Government of Virgin Islands v. Berne, 412 F.2d

1055, 1060 (3d Cir.), cert. denied, 396 U.S. 837 (1969).

22. Both the state trial court and the federal magis-

trate concluded that petitioner was not in custody until

he responded, “Pamela Rimer.” The district court

agreed. After examining the peculiar factual circum-

stances of this case we cannot conclude that the district

court erred. We therefore hold that petitioner's privilege

against self-incrimination was not violated by the admis-

sion of his statements “I killed that girl” and “Pamela

Rimer.”

II. FAIR AND IMPARTIAL JURY

A. Facts and State Proceedings

23. Clearfield County is a rural county with a popu-

lation of approximately seventy thousand served by two

newspapers with a total circulation of approximately

twenty-five thousand. On April 29, 1966, each of the

newspapers devoted its front page to the Rimer homicide

and to petitioner’s appearance at the substation. Both

newspapers gave front-page coverage to the pre-trial

proceedings, the voir dire of 104 veniremen, and the

nine-day trial. In the Dubois Courier Express the public-

ity culminated in seventeen consecutive editions each

bearing banner headlines and carrying at least two fea-

ture articles. The Clearfield Progress gave the case

similarly intense coverage. As the papers related, public

interest in the proceedings was unprecedented; The

Progress later adjudged petitioner's trial the top news

item of 1966.°

24. The coverage was as detailed as it was exten-

sive, see app. at 135a, 136a. The newspapers related in

6. The case also received publicity in radio and television

broadcasts, as well as in out-of-state and national publications

12a Opinion, Court of Appeals

full petitioner's detailed written confessions as well as

his testimony at trial retelling the homicide. They also

detailed petitioner's defense of temporary insanity, the

charge and evidence of rape, and finally petitioner's con-

viction on October 7, 1966, of both rape and first-degree

murder.

25. Petitioner's cause continued to receive

front-page coverage at every step of his appeal. Banner

headlines announced the reversal of the conviction in

Yount I. The dissent was reprinted in full, and a local ra-

dio program became a forum in which callers expressed

their hostility to petitioner. As the second trial ap-

proached, newspaper coverage increased. The selection

of each juror merited an article and often a profile. By

the close of voir dire the two newspapers had printed

sixty-six front-page articles on the appeal and retrial.’

26. Petitioner was returned to Clearfield for retrial

before the same judge. On May 5, 1970, petitioner re-

quested a change of venue. He claimed that the public-

ity which had saturated the county since the murder,

and the continuing discussion of the case among resi-

dents, made a fair trial in Clearfield County impossible.

In particular, petitioner alleged that the dissemination of

prejudicial information outside of evidence was so wide-

spread that it could not be eradicated from the minds of

potential jurors. The prosecution argued in response

that the case had received so much publicity across the

state that it would be useless to change the venue. The

trial court found that after the initiation of the appeal the

newspapers had merely publicized the actions of the

courts “without editorial comment of any kind.” App. at

7 Petitioner's second trial and his subsequent efforts to gain

retrial or parole also received front-page coverage. Those efforts

have provoked substantial community protest In Clearfield County.

App. at 137a & n.16. The magistrate found that even “at this late

date, fifteen years after the crime, there is considerable public feel-

ing in Clearfield County in opposition to the petitioner.” App. at

136a-37a.

Opinion, Court of Appeals 13a

748a-49a. It denied the petition for change of venue on

September 12, 1970.

27. Jury selection began on November 4, 1970, and

took ten days, seven jury panels, 292 veniremen und

1186 pages of testimony. One hundred and twenty-five

of the 292 veniremen were excused because they had

not been chosen properly. Four others were dismissed

for cause before they were questioned on the case. Of

the 163 remaining veniremen who were questioned, all

but two had read of the case in the newspapers, had

heard about it on radio or television, or were otherwise

familiar with it. See app. at 135a, 137a. When asked

whether they had discussed the case, had heard it dis-

cussed, or had heard others express their opinion as to

petitioner's guilt or innocence, over ninety percent said

that they had. See app. at 135a, 137a.°

28. Of the 163 veniremen questioned on the case,

121 were dismissed for cause.’ Ninety-six of those 121

veniremen were successfully challenged after they testi-

fied that they had firm and fixed opinions’ which could

not be changed regardless of what evidence was pre-

sented. See app. at 135a & n.13.'' An additional 21 of the

121 veniremen were dismissed for cause after they said

that they had an opinion which they could change only if

8. Ninety-six veniremen were asked, and 88 responded

affirmatively

9. Petitioner made 114 successful challenges, the prosecution

seven.

10. After objection by respondent, petitioner was not permitted

to ask each venireman what his opinion was. See Transcript of Trial

— Voir Dire at 86; Brief for Appellee at 13; Brief for Petitioner at

27-28. Many veniremen nonetheless volunteered that they thought

petitioner was guilty because he had confessed to the crime or be-

cause he had been convicted in the first trial. Other veniremen re-

membered hearing members of the public express the opinion that

petitioner was guilty No venireman said he thought petitioner was

not guilty

11. Petitioner challenged 90 of those 96 veniremen. The pros-

ecution challenged the remaining six.

l4a Opinion, Court of Appeals

the petitioner could convince them to do so. See app. at

135a-36a & nn. 14, 15." Thus 117 out of the 163

veniremen questioned were successfully challenged for

cause after they said they could not set their opinion

aside before entering the jury box.

29. There were also nine other veniremen, unsuc-

cessfully challenged for cause by petitioner, who indicat-

ed that they had an opinion which they could change

only if the petitioner could convince them to do so."

When we combine those nine with the 117 veniremen

dismissed for cause, we find that a total of 126 out of the

163 veniremen questioned on the case were willing to

admit on voir dire that they would carry their opinion

into the jury box."

30. Voir dire gave other indications of the depth of

community sentiment. One venireman, the wife of a

minister, testified that she had heard too many opinions

to be sure of her own. She was then asked:

Q. Would your presence in serving as a juror

create a difficulty in your parish?

A. Why yes — when people heard my name

was on for this — countless people of the church

have come to me and said they hoped I would take

— the stand I would take in case I was called. I have

had a prejudice built up from the people in the

church.

12. Petitioner successfully challenged all 21 veniremen.

13. Petitioner peremptorily challenged six of those nine

veniremen, one was seated as a juror, and the remaining two were

seated as alternates after petitioner had exhausted his peremptory

challenges.

14. In addition, we note that twelve other veniremen stated

that they had had an opinion at one time but claimed they would not

carry it into the jury box. One of the twelve veniremen was dis-

missed for cause, six were peremptorily challenged by petitioner,

and five were seated as jurors.

Opinion, Court of Appeals 15a

Q. Is this prejudice, has it been adverse to Mr.

Yount?

A. Yes it was. They all say he had a fair trial

and he got a fair sentence. He's lucky he didn't get

the chair.

[T]he church people — I haven't asked for any

of this but they discuss it in every group — but they

say now since you are chosen and you will be there

we expect you to follow through.

Q. Notwithstanding what the court would tell

you, you feel you would be subject to the retribu-

tions or retaliation of these people —

A. I think I would hear about it.

App. at 410a, 412a. Another prospective juror said that

his opinion had been erased by the passage of time, but

his daughter-in-law later testified that he had left for

jury duty voicing great animosity toward petitioner. App.

at 430a, 527a-28a.

31. After the first jury panel was exhausted, peti-

tioner again moved for a change of venue. Although

more than three quarters of the veniremen already ques-

tioned had admitted that they would carry an opinion

into the jury box, the court orally denied the motion. On

November 14, 1970, the trial court rejected petitioner's

written motion for a change of venue. In its memoran-

dum opinion, the trial court explained that the

still-incomplete voir dire had taken so much time and

covered so many veniremen because the court had been

lenient in permitting extended examination of prospec-

tive jurors and in granting challenges for cause. App. at

194a-95a. It said that “almost all, if not all, jurors seated

had no prior or present fixed opinions.” App. at 196a.

The court noted

that it has been 4 years since the first trial of

this cause, and so far as this Court can recall, there

16a Opinion, Court of Appeals

has been little, if any, talk in public concerning the

trial from that time to the time when it was an-

nounced that a trial date had been fixed.

Id. The trial judge found the publicity was not un-

fair to the petitioner. App. at 197a. He added that few

spectators had attended voir dire, which he took as some

indication “particularly in a community as small as ours”

that the publicity had not had a great effect. Id.

32. In fact the publicity had reached all but one of

the twelve jurors and two alternates finally empanelled."®

Juror No. 1 said that he had read about the case and

heard others express their opinions, but had never come

to a “true” opinion. App. at 202a-04a, 207a. Juror No. 2

testified that he had recently discussed the case with

others and had formed an opinion which was not firm

and fixed and could be set aside. App. at 212a-15a,

218a-19a. The next of the jurors to be selected, Juror

No. 4,'° had recently moved into Clearfield County and

had never heard about the case. App. at 246a-52a. Juror

No. 5 said that she “remembered that they had said he

was guilty before” and wondered why petitioner was get-

ting a new trial, but had no opinion and would try to for-

get what she knew. App. at 259a-63a.

33. Juror No. 6, James F. Hrin, testified that he had

an opinion. He was then asked:

Q. Would you be able to change your mind re-

garding your opinion before becoming a juror in this

15. Juror No. 1 stated that “it was pretty hard to be here in

Clearfield County and not read something in the paper.” App. at

202a. Juror No. 2 said that “|y|ou could hardly miss it” on the radio

and television news. App. at 212a. Juror No. 6 volunteered that

“[i}t's rather difficult to live in DuBois and get the paper and find out

what the people are talking about — at least the local people without

having some opinion or at least reserving some opinion.” App. at

275a-76a. Several potential jurors gave similar appraisals of the

publicity's effect.

16. The venireman initially selected as Juror No. 3 was later

excused for personal reasons.

Opinion, Court of Appeals 17a

case. That's the way I must have you answer the

question.

A. If the facts were so presented | definitely

could change my mind.

Q. Would you say you could enter the jury box

presuming him to be innocent?

A. It would be rather difficult for me to answer.

Q. Can you enter the jury box with an open

mind prepared to find your verdict on the evidence

as presented at trial and the !aw presented by the

Judge?

A. That I could do.

Q. Did I understand Mr. Hrin you would re-

quire some — you would require evidencé or some-

thing before you could change your opinion you

now have?

A. Definitely. If the facts show a difference

from what I had originally had been led to believe, |

would definitely change my mind.

Q. But until you're shown those facts, you

would not change your mind — is that your

position?

A. Well — I have nothing else to go on.

App. at 271la-73a. After repeatedly reiterating that he

would need evidence to change his opinion, Juror Hrin

said, “I don't know if that’s the answer you want.” App.

at 275a. Finally when asked yet again whether he could

set his opinion aside, he replied, “I have to.” App. at

276a. The court denied petitioner's challenge for cause,

app. at 274a-75a, and petitioner did not exercise a pe-

remptory challenge.

18a Opinion, Court of Appeals

34. Juror No. 7 said that he had formed an opinion

but added that he was not sure that he still had an opin-

ion or that he could forget what he knew. App. at

285a-88a, 298a-99a. Juror No. 8 had heard others

discussing the case and had had an opinion. App. at

304a-05a. She testified that she had none at present ex-

cept “what he said himself — that he was guilty.” App. at

309a-10a. She then said that she did not think she would

consider in deliberations what she already knew. App. at

312a-13a. Juror No. 9 said that she had thought petition-

er was guilty and wondered why a new trial was neces-

sary, but added that now she would have to hear both

sides before she could decide. App. at 322a-24a. Juror

No. 10 had heard the opinions of others and had ex-

pressed his own. He admitted that it would be difficult to

strike what he'd heard before, but stated that he felt peti-

tioner should “have every opportunity to prove his inno-

cence.” App. at 336a, 338a-39a. Juror No. 11 testified

that he had read about the case but had not formed an

opinion. App. at 347a, 349a, 357a."’

35. After petitioner had exhausted his peremptory

challenges, two jurors and two alternates were seated

over his challenges for cause. Both Juror No. 12 and re-

placement Juror No. 3 testified that they had heard

about the case but had no opinion. App. at 362a-65a,

224a-28a. Alternate No. | stated that he had expressed

an opinion which remained firm and fixed and which he

would not put out of his mind until evidence was pre-

sented. App. at 380a-85a. Alternate No. 2 said that she

had a definite opinion which she could not dismiss and

which only evidence could change. App. at 395a-97a.

17. Petitioner did not challenge Jurors Nos. 1, 2, 4, 5, and 7-11.

At the hearing on the habeas petition, petitioner explained that, be-

cause he had believed that a change of venue would not be granted

and that a fair and impartial jury was impossible in Clearfield Coun-

ty, he had felt the jurors were “probably about as good as we are

going to get.” App. at 557a-58a; see Appellant's Brief ai 16-17

Opinion, Court of Appeals 19a

Both alternates were sequestered with the jury; the

jurors were told that they were free to discuss the case

with other jurors when sequestered.

36. The trial lasted for four days. The prosecution

presented quite a different case than it had at the first

trial. Because of the Pennsylvania Supreme Court's

holding in Yount I, the Commonwealth was unable to

put into evidence petitioner's detailed written confes-

sions. As a result, it chose not to retry petitioner on the

rape charge. See 537 F. Supp. at 877.

37. The change in the defense was even more

marked. Petitioner did not take the stand to retell and ex-

plain the events revealed in the now-excluded confes-

sions. He did not renew his claim of temporary insanity.

Instead petitioner relied solely upon cross-examination

and character witnesses.

38. After he was again sentenced to lite imprison-

ment, petitioner filed a post-conviction motion for a new

trial on November 27, 1970. He claimed, inter alia, that

the trial court erred in rejecting several of his challenges

for cause and in denying his petitions for a change of

venue. The trial court rejected those arguments and dis-

missed the motion on January 15, 1973. It stated that

there had been “practically no publicity” during the four

years between trial and retrial, and “practically no public

interest” shown at the second trial as few had attended

on some days. App. at 75la. Voir dire had taken such a

long time, it explained, because petitioner “raised so

many questions and the court exercised its discretion to

assure that there could be no complaint about the final

jury empanelled.” Id.

39. The Pennsylvania Supreme Court adopted the

trial court’s post-conviction findings and affirmed the

judgment of sentence on January 24, 1974. Yount II,

455 Pa. at 311-12, 314 A.2d at 247. It ruled that the peti-

tions for a change of venue were directed to the sound

discretion of the trial court, and found no abuse of that

20a Opinion, Court of Appeals

discretion because “the record fails to disclose undue

community prejudice.” /d., 455 Pa. at 312-14, 314 A 2d

at 247-48.

B. Proceedings Below

40. In his petition for a writ of habeas corpus, peti-

tioner claimed that his conviction was obtained in viola-

tion of his right to a fair, impartial, and “indifferent”

jury. In particular, he alleged that the trial court erred by

refusing his motions for a change of venue."*

41. After two davs of evidentiary hearings, the

United States Magistrate recommended that the petition

be granted. He noted that the case involved a sensational

homicide in a small rural community and that extensive

publicity had surrounded both trials. App. at 136a, 14 1a.

He found “a strong community hostility toward the peti-

tioner” as well as “pervasive community knowledge of

the facts of the case.” Id. at 141a. He characterized this

case as one where

the public has been fully informed of the fact that

the charged defendant had confessed to the crime,

and that he had been previously tried and convicted

of both rape and murder, and where on retrial the

confession is suppressed but the public remains

very much aware of the circumstances surrounding

18. Brief for Petitioner at 25-34. Petitioner also assigned error

to the denial of the challenges for cause he made to Juror No. 3,

Juror No. 12, and four potenual jurors. App. at 16a; Brief for Peti-

uoner at 34-39. The distnct court found no constitutional infirmity.

537 F. Supp. at 882-83. Petitioner does not raise those challenges

on appeal.

Petitioner does argue on appeal that the tnal court erred in

denying his challenges for cause to Juror Hrin and both alternate

jurors. Appellant's Bnef at 25 Our disposition of this appeal makes

it unnecessary to consider whether those arguments are properly

before us.

Opinion, Court of Appeals 2la

the case and has formed definite opinions as to the

guilt or innocence of the defendant.

Id. The magistrate calculated that over 70 percent of

the veniremen and several of the jurors had testified that

they had a fixed opinion, and stated that “a certain pall is

cast upon those in the minority who testified that they

had not formed a fixed opinion and could judge the case

on its merits.” Id. at 140a-4la. In his view, the

empanelled jury was incapable of deciding the case sole-

ly on the evidence before it “but rather at best required

the petitioner to prove his innocence or at least overcome

strong preconceived notions as to his guilt.” Id. at 141a.

The magistrate concluded that petitioner could not have

received a fair trial by an impartial jury in Clearfield

County.

42. The district court rejected the recommendation

of the magistrate. Although the court recognized the

community's “substantial knowledge” of the case, it de-

cided after an independent review of the record that the

publicity had not been vicious or excessive. 537 F. Supp.

at 877. It noted that the trial court had granted extensive

latitude in the voir dire and stated that the exhaustion of

the first panel of veniremen was not remarkable. Id. at

877, 882. The district court in its independent review

also determined that all the jurors at some point said

they could set aside their opinions. Id. at 877-82.

Throughout it emphasized that the factual findings of

the state court judge were presumptively correct under

28 U.S.C. §2254(d) (1976). The district court concluded

that petitioner had failed to carry his burden of establish-

ing that actual prejudice had rendered a fair trial

impossible.

C. Discussion

43. Petitioner argues on appeal that the exposure of

the venire to prejudicial pretrial publicity, and the refus-

22a Opinion, Court of Appeals

al to grant a change of venue, violated his sixth amend-

ment rights." The sixth amendment guarantees to the

accused the right to be tried “by an impartial jury.” U.S.

Const. amend. VI. Under the due process clause of the

fourteenth amendment, the states are required to effec-

tuate that right by giving “a fair trial to the accused by a

panel of impartial, ‘indifferent’ jurors,” Irvin v. Dowd,

366 U.S. 717, 722 (1961); accord Murphy v. Florida,

421 U.S. 794, 799 (1975), “capable and willing to decide

the case solely on the evidence before it." Smith v. Phil-

lips, 455 U.S. 209, 217 (1982); see Sheppard v. Maxwell,

384 U.S. 333, 351 (1966).

44. To satisfy that constitutional standard the ju-

rors need not be totally ignorant of the facts of a case.

Murphy, 421 U.S. at 799-800. A juror who has read

about the case, even one who has conceived some notion

as to the guilt or innocence of the accused, may none-

theless serve “if the juror can lay aside his impression or

opinion and render a verdict based on the evidence pre-

sented in court.” Id. at 799 (quoting Irvin, 366 U.S. at

723); see Martin v. Warden, 653 F.2d 799, 804, 806 (3d

Cir. 1981), cert. denied, 454 U.S. 1151 (1982). At the

same time, a juror’s assurance that he can enter the jury

19. Petitioner in his bnef separates his challenge based on

pretrial publicity from his challenge based on the refusal to change

venue. We consider the arguments to be inseparable. See Martin v.

Warden, 653 F.2d 799, 802-06 (3d Cir. 1981), cert. denied, 454 U.S.

1151 (1982). The pretrial publicity and its effects were the basis for

petitioner's motions for a change of venue. Our inquiry in this habe-

as corpus proceeding is restricted to whether the refusal to change

venue amounted to a violation of petitioner's constitutional rights.

Id. at 804; see Rideau v. Louisiana, 373 U.S. 723, 726 (1963).

There could be no constitutional violation unless petitioner was de-

rued his constitutional right to an impartial jury because of pretrial

publicity. Beck v. Washington, 369 U.S. 541, 556 (1962).

Opinion, Court of Appeals 23a

box without an opinion is not dispositive if the accused

can demonstrate “the actual existence of such an opin-

ion in the mind of the juror as will raise the presumption

of partiality.” Murphy, 421 U.S. at 800 (quoting Irvin,

366 U.S. at 723); see United States v. Provenzano, 620

F.2d 985, 995 (3d Cir.), cert. denied, 449 U.S. 899

(1980). '

45. The petitioner challenging his state court con-

viction in a habeas corpus proceeding must shoulder a

particularly heavy burden. Unlike a defendant seeking

review of his federal conviction, the petitioner cannot ar-

gue that simply because his jury has read of extra-record

facts with a high potential for prejudice, a federal court

must presume that the jury was prejudiced. Cf. Mar-

shall v. United States, 360 U.S. 310, 313 (1959) (per

curiam) (federal conviction reversed under supervisory

power). A federal court reviewing a state conviction on

habeas corpus may presume prejudice only in extraordi-

nary cases where “the influence of the news media, ei-

ther in the community at large or in the courtroom itself,

pervaded the proceedings.” Murphy, 421 U.S. at 798-99:

see, e.g., Sheppard, 384 U.S. 333 (extremely inflamma-

tory publicity and a courthouse given over to carnival);

Estes v. Texas, 381 U.S. 532 (1965) (trial in circus at-

mosphere); Rideau v. Louisiana, 373 U.S. 723 (1963)

(twenty-minute confession repeatedly broadcast on tele-

vision). The publicity in this case. though it had a high

potential for prejudice, did not utterly corrupt the trial

atmosphere in that fashion. See Murphy, 421 U.S. at

798; Martin, 653 F.2d at 805. Petitioner must therefore

show “that the publicity has been so extreme as to cause

actual prejudice to a degree rendering a fair trial impos-

sible.” Martin, 653 F.2d at 805 ( emphasis added); see

Murphy, 421 U.S. at 797-799: Estes, 381 U.S. at 542-44:

Martin, 653 F.2d at 804-06: United States ex rel. Greene

24a Opinion, Court of Appeals

uv. New Jersey, 519 F.2d 1356, 1357 (3d Cir. 1975) (per

curiam ).””

46. To determine whether actual prejudice has

been shown, we must examine the “totality of circum-

stances” for any indication that petitioner's trial was not

fundamentally fair. Dobbert v. Florida, 432 U.S. 282,

303 (1977); see Sheppard, 384 U.S. at 352. In Irvin v.

Dowd, 36 U.S. 712 (1961), the Supreme Court estab-

lished the method by which such examinations are con-

ducted. See, e.g., Murphy, 421 U.S. at 800-03; Beck v.

Washington, 369 U.S. 541, 556-57 (1962); see also

Dobbert, 432 U.S. at 302-03. First, the Court in Irvin

considered the extent and content of the publicity be-

cause it was indicative of “the then current community

pattern of thought.” Irvin, 365 U.S. at 725-27. The

Court then reviewed the voir dire. In the opinions

expressed by potential jurors and the difficulty encoun-

tered in finding veniremen who could at least claim

impartiality, the Court discovered evidence of a pattern

of prejudice in the community. Id. at 727. Finally the

Court looked to see whether that pattern of prejudice

was reflected in the testimony of the jurors ultimately

seated in the jury box. Id. at 727-28. Considering all

these factors, the Court then concluded that the jurors’

20. In addition. because petitioner is challenging a state con-

vicuon on a petition for a writ of habeas corpus, the factual findings

of the state courts are presumed to be correct unless petitioner can

establish by convincing evidence that the factual findings were er-

roneous. 28 U.S.C. §2254(d) (1976); see Sumner v. Mata, 449 U.S.

539 (1981). At the same time, we have a duty as a federal appellate

court “to make an independent evaluation of the circumstances.”

Sheppard, 384 US. at 362. In particular, because the nature and

strength of a venireman’'s opinion is a mixed question of law and

fact. Iruin, 366 U.S at 723, we must “independently evaluate the

vou dire testimony of the impaneled jurors” and the potential jurors.

Id_; Martin, 653 F 2d at 807, see Cuyler v. Sullivan, 446 U.S 335,

341-42 (1980)

Opinion, Court of Appeals 25a

assurances of impartiality had to be discounted. Id. at.

728.

1. The Publicity

47. The publicity preceding petitioner's trial was

extensive and had great potential for prejudice. As in

Irvin, petitioner's case was a “cause celebre” in a rural

community which had been subjected to a barrage of

publicity concerning a seasational murder. Irvin, 366

U.S. at 725; see Murphy, 421 U.S. at 798. That publicity,

although accurate, factual in nature, and without edito-

rial comment, see Murphy, 421 U.S. at 800 n.4, 802:

Beck, 369 U.S. at 556, revealed prejudicial information

“never heard from the witness stand” in the second trial.

See Sheppard, 384 U.S. at 356.

48. First, the publicity disclosed that the jury in the

first trial had convicted petitioner of the murder. Few

revelations could be so damning to an accused. United

States v. Williams, 568 F.2d 464, 471 (Sth Cir. 1978).

Possibly even more prejudicial was the disclosure of pe-

titioner’s written confessions and his testimony at the

first trial. See Rideau, 373 U.S. 723; United States v.

Haldeman, 559 F.2d 31, 61 (D.C. Cir. 1976) (in banc)

(per curiam), cert. denied, 431 U.S. 933 (1977); see also

United States ex rel. Doggett v. Yeager, 472 F.2d 229,

231 (3d Cir. 1971). The confessions and testimony de-

tailed in a highly unfavorable light petitioner's actions

and thoughts at the time of the homicide. They were

sworn revelations of information which petitioner's prop-

erly admitted oral statements simply did not convey. Cf.

Stroble v. California, 343 U.S. 181, 195 (1952) (confes-

sion printed in newspaper was introduced into evi-

dence); see also United States v D'Andrea. 495 F.2d

1170, 1172-73 (3d Cir.) (per curiam). cert. denied, 419

U.S. 855 (1974). Finally, the publicity revealed that peti-

tioner at the first trial had pled temporary insanity and

had been convicted of rape. Such highly inflammatory

26a Opinion, Court of Appeals

facts carried too great a risk of prejudice to be directly

offered as evidence. See Marshall, 360 U.S. at 312-13;

United States ex rel. Greene v. New Jersey, 519 F.2d

1356 (3d Cir. 1975) (per curiam). “The exclusion of

such evidence in court is meaningless when the news

media makes it available to the public.” Sheppard, 384

U.S. at 360; see Murphy, 421 U.S. at 802.

49. The publicity was understandably most exten-

sive and most potentially prejudicial before and during

petitioner's first trial, which was four years before his

second trial. The passage of time may work to erase

highly unfavorable publicity from the memory of a com-

munity. See, e.g.. Murphy, 421 U.S. at 802; Beck, 369

U.S. at 556. In this case, however, voir dire revealed that

more than 98 percent of the veniremen questioned re-

membered the case. In part this was due to the repeated

community exposure provided by newspaper coverage of

the appeal and retrial’ which helped keep fresh the im-

print of the case in the minds of the public.” More im-

21. The state trial court, though the record contained at least

17 front-page articles, said that between trial and retrial “there was

practically no publicity given to this matter through the news media

_ except to report that a new trial had been granted by the Su-

preme Court.” App. at 75la. We believe, however, that petitioner

has established by convincing evidence that the state court's char-

acterization of the coverage was erroneous. 28 U.S.C. §2254(d)

(1976). The record on this petition indicates that 66 front-page arti-

cles were published covering the appeal and second trial. Cf. Sum-

ner v. Mata, 449 at 547 (federal and state court had identical rec-

ord). We agree with the magistrate who after two days of evidentiary

hearings found that the second trial “was surrounded with public-

ity, but not to the same degree” as the first trial. App. at 136a.

22. The trial court stated that “as far as this Court can recall”

there was little talk in public concerning the second trial. App. at

196a. Veniremen during voir dire indicated, however. that there had

been public discussion of the case. particularly in last weeks before

retrial. Such discussion appa: ently did not reach the attention of the

trial court.

Opinion, Court of Appeals 27a

portant, the publicity attending the homicide and first

trial had been so extensive and intensive that the case

was firmly implanted in the memories of Clearfield

County residents.

50. Petitioner has established that the publicity be-

fore his second trial had revealed prejudicial information

from his first trial, information which was not officially

in evidence against him. The widespread dissemination

of such extra-record information, while not rendering

the jury presumptively prejudiced, poisoned the “gener-

al atmosphere of the community” in which petitioner

was retried. See Murphy, 421 U.S. at 802. If petitioner

can show that that atmosphere caused actual prejudice

in the jurors, their assurances of impartiality can be

disregarded. Id.

2. The Voir Dire

51. The difficulty of voir dire may provide crucial

evidence that the sentiments of the community were so

poisoned against an accused as to impeach the asserted

indifference of his jurors. Murphy, 421 U.S. at 803.

“The length to which the trial court must go in order to

select jurors who appear to be impartial” reveals a great

deal about those jurors’ assurances of impartiality:

In acommunity where most veniremen will ad-

mit to a disqualifying prejudice, the reliability of the

others’ protestations may be drawn into question;

for it is then more probable that they are part of a

community deeply hostile to the accused. and more

likely that they may unwittingly have been influ-

enced by it.

The tnal court also noted that few spectators had attended tnal

on some days. particularly dung voir dire. Because petitioner al-

leges prejudice not from a “circus atmosphere” in the courtroom.

see Murphy, 421 U.S. at 798: Martin. 653 F.2d at 805. but from

public knowledge of extra-record facts. occasional low attendence is

a factor of limited significance

28a Opinion, Court of Appeals

Id. at 802-03.

52. In this case, as in /rvin, “impartial jurors were

hard to-find.” Irvin, 366 U.S. at 727. In the long and dif-

ficult voir dire?’ 163 veniremen were questioned on the

case. Our independent examination of the voir dire testi-

mony shows that 126 prospective jurors, or 77 percent of

the 163 veniremen questioned, admitted that they would

Carry an opinion into the jury box. The trial court itself

excused on challenges for cause 117 of those

veniremen, or 72 percent of the 163, after they stated

that they could not set aside their opinion.** Only when

petitioner had exhausted his peremptory challenges

could enough jurors be found to fill the jury box. Cf.

Dobbert, 432 U.S. at 302 (peremptory challenges not ex-

hausted); United States v. Gorel, 622 F.2d 100, 103-04

(Sth Cir.) (same), cert. denied, 445 U.S. 943 (1980).

53. In Irvin the trial court dismissed for cause 268

of 430 veniremen, or 62 percent, because they had fixed

opinions concerning the petitioner’s guilt. Almost 90

percent of those examined entertained some opinion as

to guilt. 366 U.S. at 727. In those circumstances the Su-

preme Court “readily found actual prejudice against the

23. The tnal court explained that the voir dire was lengthy be-

Cause petitioner was permitted to ask so many questions. App. at

194a-95a, 75la. The court did indeed extend great leniency to peti-

uoner in his questioning of the veniremen. Such leniency was com-

mendable. It was also necessary under the circumstances, and does

not explain away the difficulty of the voir dire as a real factor in our

consideration.

24. The trial court stated that the difficulty in selecting a jury

was due in part to his leniency in granting challenges for cause.

App. at 195a, 75la. In our independent evaluation. each of the 117

veniremen dismissed for cause by the tral court had expressed a

disqualifying prejudice which required dismissal. In fact. as we

have noted, the tnal court refused to dismiss several veniremen who

had expressed a disqualifving prejudice. and permitted some of

them to sit as jurors

Opinion, Court of Appeals 29a

petitioner to a degree that rendered a fair trial impossi-

ble." Murphy, 421 U.S. at 798; accord United States ex

rel. Bloeth v. Denno, 313 F.2d 364, 368-69 (2d Cir. 1962)

(in banc) (31 of 38 veniremen questioned had formed

opinion ), cert. denied, 372 U.S. 978 (1963). By contrast,

in Murphy the Court found no basis to cast doubt on the

juror’s assurances of impartiality where only 20 of 78

veniremen questioned, or 26 percent, were excused be-

cause they disclosed an opinion as to guilt. Id. at 803;

accord Beck, 369 U.S. at 556 (14 of 56 veniremen might

have had opinions); Martin, 653 F.2d at 806 : 23 of 81

veniremen questioned had opinions); Brinlee v. Crisp,

608 F.2d 839, 845 (10th Cir 1979) (19 of 47 veniremen

questioned had opinions), cert. denied, 444 U.S. 1047

(1980); Haldeman, 559 F.2d at 70 & n.56 (29-36

percent of veniremen arguably had opinions). cert. de-

nied, 431 U.S. 933 (1977); Mastrian v. McManus, 554

F.2d 813, 818 (8th Cir. ) (41 of 92 veniremen questioned

had opinions), cert. denied, 433 U.S. 913 (1977).

54. In the instant case voir dire revealed other indi-

cations of a deep and bitter prejudice present in the com-

munity. One venireman apparently veiled his strong

feelings when testifying. Another said that her fellow

parishoners tried to influence her to vote guilty. Many

veniremen volunteered opinions of guilt. and over 90

percent of those asked said they had discussed the case

or heard others express their opinions.

55. We believe that the voir dire in this case more

strongly resembles that of Irvin than that of Murphy. See

Martin, 653 F.2d at 806. Three-quarters of the

veniremen admitted to an opinion of guilt which they

could not set aside. “Where so many. so many times, ad-

mitted prejudice, |a juror’s| statement of impartiality can

be given little weight.” Irvin, 366 US. at 728: Martin.

653 F.2d at 806.

30a Opinion, Court of Appeals

3. The Jurors Selected

56. The prejudice permeating the voir dire and the

community was reflected in the voir dire testimony of

the majority of the twelve jurors and two alternates ulti-

mately placed in the jury box.” All but one of the jurors

were familiar with the case, and several explicitly re-

called petitioner’s conviction or confessions. Eight out of

fourteen jurors would admit that, before hearing any tes-

timony, they had formed an opinion as to petitioner's

guilt or innocence. Cf. Irvin, 366 U.S. at 727 (8 of 12

had formed opinions); Denno, 313 F.2d at 367-68 (8 of

16 had formed opinions ).”

With such an opinion permeating their minds, it

would be difficult to say that each could exclude

this preconception of guilt from his deliberations.

The influence that lurks in an opinion once formed

is so persistant that it unconciously fights detach-

25. The alternate jurors were dismissed and did not participate

in the jury's deliberations. An alternate who did not deliberate does

not contaminate a jury unless there is reason to believe that the jury

had been exposed to the alternate’s prejudicial information or opin-

ion. See United States v. Vento, 533 F.2d 838, 860-70 (3d Cir.

1976). In this case the jurors were told they could discuss the case

among themselves when sequestered. For four days the two alter-

nate jurors were seated and sequestered with the regular jurors.

Even though there is no evidence that the prejudiced alternates

talked to the regular jurors, such a sustained condition of “continu-

ous and intimate association” operates to subvert the requirement

that the jury's verdict be based on evidence developed from the wit-

ness stand. See Turner v. Louisiana, 379 U.S. 466, 472-73 (1965)

(jurors guarded by deputy sheriffs who were witnesses); see also

United States ex rel. Qwen v. McMann, 435 F.2d 813 (2d Cir.

1970). cert. denied, 402 U.S. 906 (1971).

26. As a result of our independent evaluation. we must there-

fore reject the trial court's conclusion that “almost all, if not all. (of

the first twelve] jurors had no prior or present fixed opinions.”

App. at 196a.

Opinion, Court of Appeals 3la

ment from the mental processes of the average

man.

Irvin, 366 U.S. at 727 (citation omitted). Indeed, when

asked whether they could set their opinions aside and

forget what they had heard, many of the jurors gave un-

certain and ambiguous answers. Even such equivocal

assurances of impartiality were preferable to the open

admissions of prejudice made by Juror Hrin and the two

alternates, who went “so far as to say that it would take

evidence to overcome their belief.” Jd. at 728; Murphy,

421 U.S. at 798.”

57. It is hardly surprising that the assurances of

impartiality given by petitioner’s jurors were equivocal

or negative. It is more surprising that some could indeed

give blanket assurances of impartiality. Petitioner's ju-

rors were members of a community barraged by public-

ity and alive with discussion, a community where three

quarters of those called would admit to a disqualifying

prejudice. Those jurors were then asked to forget that

petitioner had been convicted of the murder, and rape, of

Pamela Rimer. They were asked to forget how petitioner

twice in writing and once on the stand had retold in

detail that he had killed her, and how he had offered no

27. Petitioner did not challenge nine jurors. Because Pennsy]-

vania at the time of retrial required that objection be made before

the jury retired to deliberate, Pa. R. Crim. P. 1106(d) (1975), peti-

tioner's failure to challenge a juror for cause waived objection to

that particular juror, Provenzano, 620 F.2d at 996 n.15, unless peti-

tioner can show cause for failing to object and prejudice therefrom.

Rogers v. McMullen, 673 F.2d 1185, 1188 (11th Cir. 1982); Graham

v. Mabry, 645 F.2d 603, 606 (8th Cir. 1981); see Engle v. Isaac, 456

U.S. 107, 130 (1982); Wainwright v. Sykes, 433 U.S. 72 (1977).

Where as here a fair trial was impossible not because of a particular

juror but regardless of the parucular jurors. challenge of any indi-

vidual juror for cause is not required. Failure to challenge any of the

jurors selected, however, is “strong evidence” that the accused

thought the jurors were not biased. Beck, 369 US. at 557-58.

32a Opinion, Court of Appeals

defense except for temporary insanity. Those jurors

were asked to forget all they knew and put their impres-

sions and opinions aside. Such a request took insuffi-

cient account of “the frailties of human nature.” Irvin,

366 U.S. at 728.

58. “Impartiality is not a technical conception. It is

a state of mind.” Id. at 724 (quoting United States v.

Wood, 299 U.S. 123, 145 (1936)). We must view the ju-

rors’ assurances of impartiality in light of the pretrial

publicity, the difficulty of voir dire, and the testimony of

the jurors selected. We conclude that despite their as-

surances of impartiality, the jurors could not set aside

their opinions and render a verdict based solely on the

evidence presented in court. Petitioner has shown that

the pretrial publicity caused actual prejudice to a degree

rendering a fair trial impossible in Clearfield County.

After examining the totality of circumstances, we hold

that petitioner's retrial was not fundamentally fair.

Ill. CONCLUSION

59. We will affirm that part of the district court's or-

der holding that petitioner's constitutional right against

self-incrimination was not violated by the admission into

evidence of his oral statements. We will vacate that part

of its order holding that retrial in Clearfield County did

not infringe petitioner's right to a fair trial by an impar-

tial jury.

60. Petitioner's detention and sentence of life im-

prisonment are in violation of the Constitution of the

United States. He is therefore entitled to be freed from

that detention and sentence. Petitioner is still subject to

custody under the indictment, however, and he may be

retried on this or another indictment. Irvin, 366 US. at

728.

G1 We will remand the case to the district court

with the direction that a writ of habeas corpus shall issue

unless within a reasonable time the Commonwealth

shall afford petitioner a new trial.

Opinion, Court of Appeals 33a

STERN, District Judge, concurring.

Under any test reflecting even the most minimal re-

spect for the values embodied in the sixth amendment,

we would be compelled to invalidate this conviction. My

concern, however, is with the particular constitutional

standard which for 175 years has guided the lower

courts, which we are obligated to apply today, and which

renders constitutional trials taking place under circum-

stances only slightly less shocking than those presented

in this case.

In Irvin v. Dowd, 366 U.S. 717 (1961), the Supreme

court, crystalizing earlier language from United States

v. Burr, 25 F. Cas. 49, 50-51 (C.C.D. Va. 1807) (No.

14,692g) (Marshall, C.J.); Reynolds v. United States, 98

U.S. 145, 155-156 (1878); Spies v. Illinois, 123 U.S.

131, 179-80 (1887). and Holt v. United States, 218 U.S.

245, 248 (1910), established that it is permissible to

empanel a jury composed of 12 persons, all of whom

have a preconceived opinion that the defendant is guilty,

as long as each promises to “lay aside his impression or

opinion and render a verdict based on the evidence pre-

sented in court.” Irvin, 366 U.S. at 723. Accord Murphy

vu. Florida, 421 U.S. 794 (1975); Martin v. Warden, 653

F.2d 799 (3d Cir. 1981), cert. denied, 454 U.S. 1151

(1982).

According to the Irvin Court: “[T]o hold that the

mere existence of any preconceived notion as to the guilt

or innocence of an accused, without more, is sufficient

to rebut the presumption of a prospective juror’s impar-

tiality would be to establish an impossible standard.”

Irvin, 366 U.S. at 723. I cannot see why it is “impossi-

ble” to obtain jurors who do not begin with a bias. The

test I suggest would not disqualify a juror merely be-

cause he has been exposed to pretrial publicity: rather.

only those who represent that they have formed an opin-

ion — irrespective of the degree of its fixation — must be

excluded automatically from jury participation.

34a Opinion, Court of Appeals

There can be but two possible explanations for the

Irvin standard. The first is that it presumes to be mean-

ingful: that a promise to lay aside an opinion, for exam-

ple, that an accused high school teacher brutally killed

one of his own students is either believeable or enforce-

able. Definitive refutation of this precept as a psychologi-

cal matter is, of course, beyond my capabilities, but I

would venture that no one of us would want to gamble

our freedom on the ability of a person to erase a

preformed opinion as to guilt.’ Moreover, even if such

self-imposed amnesia is possible as a cognitive event,

surely its prediction is not reliable — that is, we cannot

expect a person to know with any degree of accuracy at

the time of voir dire whether or not he will be able to lay

aside an opinion, however desirous he is of achieving

that end. I see no reason to subject our jury system to

the hazards of guesswork, particularly where the alter-

native is so easily achieved. Thus, I reject the Irvin

standard as a means to insure impartial jurors.*

1. Commentators with psychological training have come to the

same conclusion. See, e.g., Comment, Fair Tnal » Free Press: The

Psychological Effect of Pre-Trial Publicity on the Juror’s Ability to

be Impartial; A Plea for Reform, 38 S. Cal. L. Rev. 672, 682 & nn.53.,

54 (1965); see also Stanga. Jr., Judicial Protection of the Cnminal

Defendant Against Adverse Press Coverage. 13 Wm. & Marv L.

Rev. |. 5 & n.23 (1971).

2. The voir dire at the celebrated tnal of “Boss” Tweed over 100

vears ago provides a wonderful example of the strain imposed upon

any notion of “impartiality” by the “laying aside” standard. Vanous

veniremen, all of whom indicated a preformed opinion of some de-

gree, revealed a variety of strategies by which thev felt they could

rid themselves of their initial partiality. In listening to their voices.

we must decide if it makes sense to continue the same dialogues

today.

One venirman suggests that he is able to lav aside his opinion

as a matter of duty

Q. If vou were to go into that jury box, would vou require any

evidence whatever to remove the impression that vou now

have?

Opinion, Court of Appeals 35a

The second conceivable rationale for the Irvin test

is that it is a practical necessity, without which the

empanelling of juries would be impossible. I simply

refuse to believe that in a land as populous as ours,

where potential jurors abound, the only way to assemble

a group of 12 impartial persons is to allow those with ad-

vance opinions to sit as long as they give a proper incan-

tation of their ability to lay aside those opinions. If a jury

cannot be selected without resort to persons with

preformed views of a defendant’s guilt, it should be a

simple matter to transfer the case to another county.

There is simply no societal interest advanced by seating

a juror who has openly stated that he has a view con-

cerning the defendant's guilt, notwithstanding that it

can be “laid aside.”

A. Not as a juryman; no, sir.

Q. Your belief as a juryman is a different thing from your belief

as a man?

A. If any one should come up in the street and tell me Mr.

Tweed was an innocent man, I should not at once believe it

unless he gave me some proof to the contrary; but in the

jury-box I go in there free from any prejudice as a juryman.

I think that is the duty of the juryman, that it ought not to

require any evidence at al] to remove any impression. That

is what I intended to convey in my answer to the judge.

Record of People v. Tweed, 50 How. Pr. 262 (N.Y. Sup. Ct. 1876) at

104. Another admits that the process is unpredictable:

Q. If you were to go into the trial as a juror would you not carry

that same [preformed] impression into the jury-box?

A. I think if I was called upon to serve as a juror I could free my

mind from all prejudice or impressions and act impartially;

that is my belief.

Q. Have you ever tested that belief in a like case?

A. Never, sir.

Q. It would be an experiment on your part?

36a Opinion, Court of Appeals

The vulnerability of the Irvin “laying aside’ stand-

ard is only heightened where attempts to temper its po-

tentially devasting consequences for a criminal defend-

ant are examined. The Murphy Court pointed out that,

[T)he juror's assurances that he is equal to this task

{laying aside prior opinion] cannot be dispositive of

the accused's rights, and it remains open to the de-

fendant to demonstrate “the actual existence of

such an opinion in the mind of the juror as will raise

the presumption of partiality.”

Murphy, 421 US. at 800 (quoting Irvin, 366 US. at

723). I am at a loss to understand how a defendant

would ever be able to demonstrate that despite a

venireman’s assurance that he is able to lay aside a pre-

conception of defendant's guilt, there actually exists in

the potential juror’s mind a “fixed” opinion which can-

not be extinguished.

NOTE — (Continued)

A. Certainly it would

Id. at 142-43. Another views the process as one of degrees of belief

The Court — I would like to have vou give in vour own way

and in your own language the condition of your mind in regard

to Mr. Tweed or his dealings with the city

The Witness — My view is this: I read the newspaper like

everybody else; | have heard the proceedings, and of the

charges against Mr Tweed like everybody else. | have certain

superficial information, on that superficial information | have

formed an opinion, that is all | have had to do. and all | have

seen the necessity of doing; | have never looked into the case

with any degree of particularity, | have never examined the evi-

dence as a lawyer would have examined it. | have formed an

opinion; | do not consider that | have formed what | call a de-

cided opinion, because | have not looked into it so thoroughly as

to entitle me to have that opinion, but I have given it this gener-

al superficial examination | am now here and am called upon

this struck jury, and if | am to serve as jurvman. | believe that I

Opinion, Court of Appeals 37a

My view of the proper standard by which to meas-

ure the propriety of seating a particular juror does away

with the distinction between opinions that are “fixed”

and those that are something less so, as a spectral analy-

sis empty of meaning. A person with any opinion going

to the issue of a defendant's guilt is simply unfit to serve

on a jury. It is incredible to me that anyone would want

to take the contrary view. Further, in a highly publicized

case, I would discredit the denial of preconceived opin-

ions where a significant percentage of those polled state

that they hold opinions concerning the defendant. While

the Court has recognized that veniremen prejudice may

be presumed in the face of protestations to the contrary

where most of the other prospective jurors admit to a dis-

qualifying bias, compare Irvin, 366 U.S. at 727 (nearly

can act conscientiously and fairly for Tweed end fairly for the

County. | have been asked the question whether | would prefer

that Tweed should succeed or the County, and I have answered

that I should prefer that the County should succeed. I do not

mean that | would have any bias which would make me decide

against Tweed, for the County or against the County for

Tweed; I would be prepared to decide according to the

evidence

Id. at 94-95. Another describes the process as a function of will:

Q. But could you, no matter what form of oath were put to you,

enter upon the trial without having the impression upon

your mind that Mr. Tweed has been guilty of those frauds?

I should try.

Could you succeed?

I think so.

You think that vou could forget what you now believe?

I think | could dismiss it from my mind; forget it, no.

Id. at 204

All of these venirmen were seated as competent jurors.

> O> O >

38a Opinion, Court of Appeals

90 percent of venirmen have some opinion regarding de-

fendant's guilt; prejudice in remainder presumed), with

Murphy, 421 U.S. at 802 (roughly 26 percent of

veniremen have an opinion; no presumption regarding

remainder), I would not allow any jury to be empanelled

where more than 25 percent of the veniremen state that

they hold an opinion concerning the defendant's guilt.

Where over one quarter of those polled indicate such

bias, I have grave doubts as to the sincerity of represen-

tations of impartiality by others in the community.

It has long been the foundation of our legal system

that, “[N]o man’s life, liberty or property be forfeited as

criminal punishment for violation of that law until there

ha{s] been a charge fairly made and fairly tried in a pub-

lic tribunal free of prejudice, passion, excitement, and

tyrannical power.” Chambers v. Florida, 309 U.S. 227,

236-37 (1940). I do not see how we can live by this ideal

while continuing to apply the /rvin test. I would adopt a

different standard, originating at the confluence of sense

and simplicity, which would prevent any person from

entering the jury box and becomming a judge of the

facts if he has any preconceived view of the merits of the

case.

GARTH, Circuit Judge, concurring in the judgment.

In this case Juror James F. Hrin, who sat in judg-

ment of the petitioner, Jon Yount, admitted during his

voir dire that until he was shown facts establishing

Yount’s innocence, he would find it difficult to change

his opinion about Yount’s guilt. Because I conclude that

Hrin, by so testifying during the voir dire, demonstrated

“the actual existence of such an opinion in the mind of

jone of Yount’s] juror|s) as will raise the presumption of

partiality,” Murphy v. Florida, 421 U.S. 794, 800 (1975);

Irvin v. Dowd 366 U.S. 717, 723 (1961), I concur in the

judgment of the court that a new trial is required.

Opinion, Court of Appeals 39a

My concurrence, however, is limited to the issue

raised by Yount’s charge that Juror Hrin had been im-

properly impaneled. Thus, while I agree with Judge

Hunter that Yount’s fifth amendment rights were not

violated when his inculpatory sta ements were admitted

at his second trial, I do not agree with Judge Hunter that

pre-trial publicity required a change of venue. As I read

the record, it was the failure of the trial judge to apply

the principles of Irvin, supra, in excusing jurors for

cause that resulted in an unfair trial. Thus, I restrict my

vote for a remand and new trial solely to the issue of Ju-

ror Hrin's impaneling as a juror, and do not agree with

Judge Hunter's thesis that the district court erred in

denying a change of venue.

As the majority notes, Yount had been convicted of

murder and rape in 1966. After the Pennsylvania Su-

preme Court set aside both of these convictions in 1969,

Yount was tried a second time for murder in November

of 1970. The voir dire in this second trial exhausted ten

days and 167 veniremen', 121 of whom were dismissed

for cause.

Among the twelve jurors and two alternates select-

ed to try Yount, six testified that they had formed no

opinions as to Yount’s guilt. Five jurors stated that they

had formed opinions about the case, but that they could

lay those opinions aside and keep an open mind. Finally,

1. Two hundred ninety-two persons were selected as talesmen

for Yount's second trial, 125 of whom the court dismissed as im-

properly chosen after learning that the Clearfield County sheriff had

selected friends and acquantances of his own in order to obtain a

full complement of jurors. The court dismissed an additional four

jurors for cause before questioning. Although the Magistrate's re-

port lists 168 jurors who were questioned, | agree with Judge Hunt-

er that the record reveals only 167.

40a Opinion, Court of Appeals

three jurors — both of the alternates and Juror James F.

Hrin — testified that they had opinions of Yount’s culpa-

bility but could change these opinions if the proper evi-

dence were presented.’

Juror Hrin’s voir dire examination by the prosecu-

tion disclosed that Hrin was uncertain whether he could

render a verdict based solely on the evidence adduced at

trial. Responding to two questions by the prosecutor,

Hrin asserted that he “wouldn't say for sure” whether he

could “erase or remove the opinion” he held, but stated a

second time that he could do so. Hrin’s answers were

punctuated with suggestions that he thought he “possi-

bly could” render a fair verdict, and that “[i]t would be

rather difficult for me to answer” whether he “could en-

ter the jury box presuming [Yount] to be innocent.”

2. Neither alternate juror participated in the jury's delibera-

uons. Their impartiality is not challenged before us.

3. Hnn’'s voir dire examination by the prosecutor was 2s

follows

Q. Have you formed any opinion as to the guilt or inno-

cence of Mr. Yount?

A. To the degree that it was written up in the papers, yes.

Q. Is this a fixed opinion on your part?

A. This is sort of difficult to answer.

Q. Let me ask — if you were to be selected as a juror in

this case and take the jury box, could you erase or remove the

opinion you now hold and render a verdict based solely on the

evidence and law produced at this trial.

A. It is very possible. | wouldn't say for sure.

Q. Do you think you could?

A. I think I possibly could.

Q. Then the opinion you hold is not necessarily a fixed

and immobile opinion?

A. | would say not, because I work at a job where I have to

change my mind constantly.

Q. Would you be able to change your mind regarding your

opinion before become a juror in this case? That's the way I

must have vou answer the question. :

Opinion, Court of Appeals 4la

Under cross examination by counsel for the defend-

ant Yount, Hrin asserted that he would require the pro-

duction of evidence before he would abandon any opin-

ion of Yount’s guilt. Hrin stated as follows:

Q. Did I understand Mr. Hrin you would re-

quire some — you would require evidence or some-

thing before you could change tees opinion you

now have?

A. Definitely. If the facts show a difference

from what I had originally had been led to believe, I

would definitely change my mind.

Q. But until you’re shown those facts, you

would not change your mind — is that your

position?

A. Well — I have nothing else to go on.

Q. I understand. Then the answer is yes — you

would not change your mind until you were pre-

sented facts?

A. Right, but I would enter it with an open

mind.

Q. In other words, you're saying that while

facts were presented you would keep an open mind

and after that you would feel free to change your

mind?

A. Definitely.

A. If the facts were so presented | definitely could change

my mind

Q_ Would you say you could enter the jury box presuming

him to be innocent?

A. It would be rather difficult for me to answer

Q Can you enter the jury box With an open mind pre-

pared to find your verdict on the evidence as presented at trial

and the law presented by the Judge’

A. That | could do.

42a Opinion, Court of Appeals

Q. But you would not change your mind until

the facts were presented?

A. Right....

Yount promptly challenged Juror Hrin for cause, a

challenge the trial court denied because “he declared he

could go in there with an open mind.” The trial court

reasoned as follows:

I deny the challenge for cause because he declared

he could go in there with an open mind; and Com-

monwealth against Bentley [287 Pa. 539, 135 A. 310

(1926)] sets forth that — any juror is incompetent

who has a fixed and definite opinion which cannot

be erased by hearing and evidence — and he said

he could disregard it and be guided by the law and

evidence, and I believe he stated he could go in with

an open mind. I would accept that as being suffi-

cient to overcome the conviction that you proposed

that he has a fixed opinion that he could not put

aside and I think his answers were unequivical [sic]

enough as to any fixation as to opinion as he de-

clared although he had a solid opinion it is not quite

as solid as it used to be which indicates that it is not

solid. His expression is such that there is not now a

fixed opinion and therefore I so accept it.

On appeal, the Perinsylvania Supreme Court concluded

summarily that “{t]he record shows that none of the ju-

rors had a fixed opinion as to appellant's guilt or inno-

cence, or was otherwise legally unable to serve.” Com-

monwealth v. Yount, 455 Pa. 303, 314, 314 A.2d 242,

in part that “two [jurors] stated that they would require

Petitioner to prove his innocence.” In light of the record

in this case, it is patent that one of the jurors referred to

Opinion, Court of Appeals 43a

in paragraph 12-B is Juror Hrin.‘ The district court re-

viewed pertinent portions of each of the jurors’ voir dire

testimony, including Hrin's, but did not concentrate on

Hrin’s testimony in particular, and made no findings re-

specting it. See Yount v. Patton, 537 F. Supp. 873, 880

(W.D. Pa. 1982). Yount argues before us on appeal that

Hrin had abandoned the presumption of innocence, and

that Yount could not constitutionally be convicted by a

panel containing such a juror.

As the Supreme Court in Nebraska Press Associ-

ation v. Stuart stated, “pretrial publicity — even perva-

sive, adverse publicity — does not inevitably lead to an

unfair trial.” 427 U.S. 539, 554 (1976). In order to ex-

plain fully why I do not believe the district court erred in

denying a change in venue due to alleged prejudicial

publicity, it is useful to review those circumstances in

which jury exposure to adverse publicity does require a

new trial.

First, the accused may demonstrate the actual ex-

istence of prejudice attributable to pretrial publicity on

the part of one or more members of the jury. See Irvin v.

Dowd, 366 U.S. 717, 723 (1961). Such prejudice must

be shown “not as a matter of speculation but as a demon-

strable reality,” United States ex rel. Darcy v. Handy,

351 U.S. 454, 462 (1956), and is usually established by

4. There is therefore no question that the issue of Hrin's par-

tiality is before us on appeal See United States ex rei Hickey \

44a Opinion, Court of Appeals

reliance on the jurors’ voir dire responses. See United

States v. Chagra, 669 F.2d 241, 250 (5th Cir.), cert. de-

nied, 103 S. Ct. 102 (1982).

Second, in extreme cases of highly inflammatory

pretrial publicity which saturates the community from

which the jury is drawn, the accused may rely on a pre-

sumption of partiality, and need not prove actual bias.

See Rideau v. Louisiana, 373 U.S. 723, 726-27 (1963);

cf. Murphy v. Florida, 421 U.S. 794, 802-03 (1975);

Mayola v. Alabama, 623 F.2d 992, 997 (5th Cir. 1980),

cert. denied, 451 U.S. 913 (1981). This presumption is

rebuttable, however, and the prosecution may demon-

strate the impartiality of the jury by reliance on the voir

dire testimony. See United States v. Chagra, supra, 669

F.2d at 250, 252-54; United States v. Johnson, 584 F.2d

148, 154 (6th Cir. 1978), cert. denied, 440 U.S. 918

(1979); United States v. Gullian, 575 F.2d 26, 29-30

(1st Cir. 1978).

Third, the accused can demonstrate “a significant

possibility of prejudice,” United States v. Davis, 583

F.2d 190, 196 (5th Cir. 1978), and that the voir dire pro-

cedure was inadequate to permit its discovery. See Unit-

ed States v. Blanton, 700 F.2d 298, 307-08 (6th Cir.

1983); United States v. Dellinger, 472 F.2d 340, 374-75 .

(7th Cir. 1972), cert. denied, 410 U.S. 970 (1973);

Silverthorne v. United States, 400 F.2d 627, 639 (9th

Cir. 1968); cf. United States v. Capo, 595 F.2d 1086,

1092 n.6 (Sth Cir. 1979), cert. denied, 444 U.S. 1012

(1980); United States v. Haldeman, 559 F.2d 31, 64-71

(D.C. Cir. 1976), cert. denied, 431 U.S. 933 (1977);

United States v. Addonizio, 451 F.2d 49, 65-67 (3d Cir.

1971), cert. denied, 405 U.S. 1048 (1972).

In addition, in two classes of cases the accused may

assert that events transpiring during the course of trial

rendered the trial unfair. /n monger v. Maxwell, 384

U.S. 333 (1966), and Estes v. Texas, 381 U.S. 532

Opinion, Court of Appeals 45a

(1965), the Supreme Court condemned the conduct of

trials “utterly corrupted by press coverage.” See Dobbert

v. Florida, 432 U.S. 282, 303 (1975). In these cases, the

presence of the press during trial rendered the conduct

of a fair trial impossible.° A similar intrusion into the trial

process occurs when members of the jury are exposed to

publicity during the trial. See Marshall v. United States,

360 U.S. 310, 311 (1959); Goins v. McKeen, 605 F.2d

947, 952-54 (6th Cir. 1979); United States v. Williams,

568 F.2d 464, 468 (Sth Cir. 1978); United States v.

Jones, 542 F.2d 186, 194-97 (4th Cir. ), cert. denied, 426

U.S. 922 (1976).

In this case, no juror was exposed to adverse public-

ity during trial, and the record reflecting the publicity

preceding Yount’s second trial, in my opinion, was not so

inflammatory as to give rise to a presumption of partial-

ity. In addition, it is conceded that the trial court “ex-

tend|ed} great leniency to [Yount] in his questioning of

the veniremen,” Maj. op., typescript at 33 n.23, and no

argument is raised that the voir dire was less than ample

to expose the prejudices of potential jurors. Therefore,

the only basis for upsetting Yount’s conviction is the ex-

istence of the “actual prejudice” of one or more mem-

bers of the jury.

An accused may demonstrate “actual prejudice” on

the part of the jury in two ways. First, the defendant may

5. Although Rideau v. Louisiana, Sheppard v. Maxwell, and Estes v.

Texas are frequently discussed as a unit, see, ¢.9., United States v. Dozier,

672 F.2d 531, 545-46 (Sth Cir.), cert. denied, 103 S. Ct. 256 (1982),

Sheppard and Estes should be recognized as analytically distinct from

Rideau. Rideau represents the only instance in which the Supreme Court

has reversed a conviction solely on the basis of the extent and nature of

pretrial publicity without a showing of actual prejudice. See Mayola v. Ala-

bama, supra, 623 F 2d at 997. Sheppard and Estes. in contrast, represented

intrusions into the tnal process which undermined the integnty of the trial.

See United States v. Chagra, supra, 669 F 2d at 249 n.10; United States v.

Haldeman, supra, 559 F 2d at 61 n.32

46a Opinion, Court of Appeals

establish, by means of the voir dire testimony, that one

or more jurors had a preconceived opinion of the defen-

dant’s guilt which could not be set aside ir order to “ren-

der a verdict based on the evidence presented in court.”

Irvin v. Dowd, supra, 366 U.S. at 723. In such a case,

the trial court would err by not granting a challenge to

this juror for cause. A change of venue, however, would

not be required if the challenge for cause were granted.

Second, in extremely rare circumstances the ac-

cused may establish “actual prejudice” by inference. See

Murphy v. Florida, 421 U.S. 794, 803 (1975). In such a

case the defendant must demonstrate “a community

with sentiment so poisoned against petitioner as to im-

peach the indifference of jurors who displayed no ani-

mus of their own.” Id. In the only Supreme Court case to

rely on this ground, Irvin v. Dowd, ninety percent of

those examined on the point had a preconceived notion

of the defendant's guilt, and eight persons who actually

sat in judgment of the defendant thought the defendant

guilty. 366 U.S. at 727. Indeed, just recently this court

refused to apply the Irvin principle to reverse a convic-

tion in which only 23 of 71 persons known to be exposed

to pretrial publicity had fixed opinions of the defendant's

guilt. Martin v. Warden, 653 F.2d 799, 806 (3d Cir.

1981), cert. denied, 454 U.S. 1151 (1982). Thus while I

agree that if the defendant establishes the existence of a

community “so poisoned against the [defendant] as to

impeach the indifference of jurors who displayed no ani-

mus,” then a change of venue is required, I do not agree

that merely because a number of prospective jurors har-

bor opinions of guilt, that the voir dire, fairly conducted,

cannot screen the biased from the fair-minded.

A showing of actual prejudice by this method is not

to be lightly accomplished. As the Fifth Circuit stated in

United States v. Dozier, 672 F.2d 531, 546 (5th Cir.),

cert. denied, 103 S. Ct. 256 (1982), “detection of actual

prejudice is not accomplished through juggling statis-

Opinion, Court of Appeals 47a

tics.” Irvin does not establish a bright-line rule that a ve-

nire containing a percentage of biased talesmen above a

certain level is presumptively bad. Rather, the court

must examine the totality of the circumstances, includ-

ing the adequacy of the voir dire in ferreting out biased

jurors, in order to establish whether a change of venue is

constitutionally required.

A thorough and skillfully conducted voir dire

should be adequate to identify juror bias, even in a com-

munity saturated with publicity adverse to the defend-

ant. As the District of Columbia Court of Appeals noted,

“voir dire has long been recognized as an effective meth-

od of rooting out such bias, especially when conducted

in a careful and thoroughgoing manner.” In re Applica-

tion of National Broadcasting Co., 653 F.2d 609, 617

(D.C. Cir. 1981) (footnotes omitted). For this reason the

courts of appeals have repeatedly expressed “confidence

in the effectiveness of a skillful voir dire to counteract

the the threat of pretrial publicity.” United States v.

Duncan, 598 F.2d 839, 865-66 (4th Cir.), cert. denied,

444 U.S. 871 (1979). Reviewing the conviction of Lieu-

tenant William Calley for the killing of civilians at Mv

Lai, a trial that generated considerably more pretrial

publicity than Yount’s second trial in 1970, the Fifth Cir-

cuit observed that “[t]here has been a greater willing-

ness to uphold a trial court’s determination that jurors

were capable of rendering an impartial verdict where

that conclusion was reached after deliberate, searching,

and thorough voir dire.” Calley v. Callaway, 519 F.2d

184, 209 n.45 (Sth Cir. 1975), cert. denied, 425 U.S. 911

(1976). See also Graham v. Mabry, 645 F.2d 603, 611

(8th Cir. 1981); United States v. Capo, 595 F.2d 1086,

1091-92 (Sth Cir. 1979), cert. denied, 444 U.S. 1012

(1980); Margoles v. United States, 407 F.2d 727, 729-31

(7th Cir.), cert. denied, 396 U.S. 833 (1969).

As Irvin makes plain, a juror’s subjective affirma-

tion of impartiality is not dispositive of the question of ju-

48a Opinion, Court of Appeals

ror bias. It has always been clear that “merely going

through the form of obtaining jurors’ assurances of im-

partiality is insufficient.” United States ex rel. Bloeth v.

Denno, 313 F.2d 364, 372 (2d Cir.), cert. denied, 372

U.S. 978 (1963). Instead, the trial court must determine

independently and objectively whether the jurors’ assur-

ances are credible. See United States v. Blanton, 700

F.2d 298, 307-08 (6th Cir. 1983); United States v. Ger-

ald, 624 F.2d 1291, 1296-97 (5th Cir. 1980), cert. de-

nied, 450 U.S. 920 (1981). The American Bar Associ-

ation’s Standards for Criminal Justice provide that the

voir dire “shall be conducted for the purpose of deter-

mining what the prospective juror has read and heard

about the case and how any exposure has affected that

person’s attitude toward the trial.” ABA Standards for

Criminal Justice §8-3.5 (2d ed. 1978). The objective

evaluation of this information, however, rests with the

trial court. In Irvin, the trial court (which itself ques-

tioned the jurors challenged for cause) did not engage in

a searching and thorough voir dire. Instead, the court

erroneously credited the jurors’ subjective opinions that

each could render an impartial verdict notwithstanding

his or her opinion. Irvin v. Dowd, supra, 366 U.S. at 724.

Yount’s case, however, differs significantly from

Irvin v. Dowd. First, counsel themselves conducted the

voir dire in Yount’s trial and, as Judge Hunter concedes,

were afforded great leniency in the questioning of

veniremen. Second, Yount challenged only three jurors

for cause, and two of those jurors, according to the dis-

trict court’s findings, “indicated that they harbored no

fixed opinion.” Yount v. Patton, supra, 537 F. Supp. at

878. Third, the trial court permitted questioning on the

exposure of each juror to publicity and the degree of fix-

ation of each juror’s opinion. Six of the jurors testified

that they had no preconceived opinion of Yount’s guilt at

all. Among the remaining six jurors, Yount challenged

only one — Juror James F. Hrin, whom I discuss below

Opinion, Court of Appeals 49a

— for cause. The scope and depth of the voir dire, and

the absence of challenges for cause to each juror except

Hrin, was adequate to support an independent and ob-

jective determination that, with the exception of Hrin,

the jurors could “lay aside [their] impression[s] or opin-

ion{s] and render a verdict based on the evidence pre-

sented in court.” Irvin v. Dowd, supra, 366 U.S. at 723.

Judge Hunter, however, discounts the extensive

vair dire conducted in Yount’s 1970 trial and the ab-

sence of challenges for cause to each juror except Hrin.

Rather, Judge Hunter’s opinion places great weight on

the finding that “77 percent of the 163 veniremen ques-

tioned admitted that they would carry an opinion into

the jury box.” Maj. op., typescript at 33. To my mind,

this reliance on statistics, without regard to the scope of

the voir dire or the absence of challenges for cause, ele-

vates to talismanic significance the percentage of

veniremen as a whole with opinions about a defendant’s

guilt. I do not believe Irvin v. Dowd was ever intended to

be read in this fashion. If the scope of the voir dire is ample

— as it concededly is in this case — the fact that a large

percentage of persons who are not on the jury have prej-

udices should carry little weight.

There are undoubtedly many communities in which

large percentages of the veniremen have been exposed

to pretrial publicity and have a notion of the defendant's

guilt. The well-publicized trials of the Watergate defen-

dants, see’ United States v. Haldeman, supra, and of

Lieutenant William Calley, see Calley v. Callaway,

supra, are undoubtedly of this character. But, the very

function of the voir dire is to root out such persons with

preconceived prejudices and identify only those who

can, by the trial court's independent determination, lay

aside any prejudices and render a verdict based solely on

the evidence adduced during trial. Thus, given a voir

dire which is concededly adequate and which functions

to achieve its designed purpose, a venue change is not

50a Opinion, Court of Appeals

constitutionally required simply because many of the

persons who will not serve on the defendant's jury may

harbor prejudices as to the defendant's guilt.

For these reasons, I do not join Judge Hunter's

holding that a change of venue in Yount’s case was con-

stitutionally required. Nevertheless, I concur in the

judgment of the court because I conclude, for the rea-

sons that follow, that Juror James F. Hrin should not

have been impaneled in this case.

II.

In Irvin v. Dowd, 366 U.S. 717, (1961), the Su-

preme Court held that the mere existence of any precon-

ceived notion as to the guilt or innocence of an accused

is not, without more, sufficient to rebut the presumption

of a prospective juror’s impartiality. Jd. at 723. As the

Court observed, however, the adoption of such a rule

does not “ ‘foreclose inquiry as to whether, in a given

case, the application of that rule works a deprivation of

the prisoner's life or liberty without due process of law.’ ”

Id., quoting Lisenba v. California, 314 U.S. 219, 236

(1941).

The test of a prospective juror’s impartiality, articu-

lated in Reynolds v. United States, 98 U.S. 145 (1878),

and reiterated in Dowd, supra, is whether

“the nature and strength of the opinion formed are

such as in law necessarily. . . raise the presump-

tion of partiality... . The affirmative of the issue is

upon the challenger. Unless he shows the actual ex-

istence of such an opinion in the mind of the juror as

So ee the juror need

be set aside.” [Reynolds v. United

Sesene, 98 U.S. 145, 156-57 (1878). |

Irvin v. Dowd, supra, 366 U.S. at 723. See Murphy v.

Florida, 421 U.S. 794, 800 (1975).

Opinion, Court of Appeals 5la

Hrin’s voir dire testimony, taken as a whole, demon-

strates the “actual existence of such an opinion in the

mind of the juror as will raise the presumption of partial-

ity.” Even the testimony adduced by the prosecution

raised serious doubts whether Hrin entered the jury box

with an open mind. The record reveals that Hrin assert-

ed simultaneously that he could keep an open mind and

that he could not “say for sure” whether he could do so.

In response to the question whether Hrin “could enter

the jury box presuming [Yount] to be innocent,” Hrin

conceded that “[i]jt would be rather difficult for me to

answer.”

Testimony adduced by the defense further revealed

that Hrin would require Yount to produce evidence be-

fore Hrin would abandon his preconceived opinion of

Yount’s guilt. Hrin affirmed that he “would not change

(his] mind until [he] was presented [with] facts.’” Having

so stated, Hrin abandoned the presumption of inno-

cence. While the law permits a juror to affirm that he or

she will enter the jury box with an open mind, a juror

cannot require that the defendant produce evidence to

wipe clean a prior perception or opinion. The jurors

must be impartial when sworn. They cannot agree to be

impartial only if the defendant convinces them to be so.

. In this case, a juror, by his own admission, required

the production of evidence to change his preconceived

opinion of the defendant's guilt, and agreed to keep an

open mind about this evidence if and when he heard it.

As a matter of law, this admission raises a presumption

of partiality. A defendant cannot constitutionally be con-

victed by a jury containing one such juror. Irvin v.

Dowd, supra, 366 U.S. at 723; id. at 728 (“some (jurors

went] so far as to say that it would take evidence to over-

come their belief”).

52a Opinion, Court of Appeals

IV,

In concluding as a matter of law that Juror Hrin’s

testimony raises a presumption of impartiality under

Irvin v. Dowd, supra, I am fully cognizant that in a fed-

eral habeas corpus proceeding, the findings of a state

court “shall be presumed to be correct, unless the appli-

cant shall establish or it shall otherwise appear... ." 28

U.S.C. §2254(d) (1976); see Sumner v. Mata, 449 U.S.

539, 551 (1981). Under Irvin v. Dowd, however, an

opinion of a prospective juror raises a presumption of

partiality by operation of law, and therefore poses a

mixed question of law and fact. As the Court in Dowd

stated,

the test is ‘whether the nature and strength of the

opinion formed are such as in law necessarily .. .

raise the presumption of partiality. The question

thus presented is one of mixed law and fact... . As

was stated in Brown v. Allen, 344 U.S. 443, 507, the

“so-called mixed questions or the application of con-

stitutional principles to the facts as found leave the

duty of adjudication with the federal judge.” It was,

therefore, the duty of the Court of Appeals to inde-

pendently evaluate the voir dire testimony of the

impaneled jurors.

Irvin v. Dowd, supra, 366 U.S. at 723.

In this case the Pennsylvania Supreme Court con-

cluded that “none of the jurors had a fixed opinion as to

[Yount’'s] guilt or innocence.” Commonwealth v. Yount,

supra, 455 Pa. at 314, 314 A.2d at 248. Nevertheless, the

trial court found that Hrin had a “solid opinion [al-

though] not quite as solid as it used to be.” Neither the

trial court nor the Pennsylvania Supreme Court, however.

:

:

f

This latter requirement raises a presurmption of

a matter of law, and therefore does not impli-

|

Opinion, Court of Appeals 53a

cate 28 U.S.C. §2254(d). Cf. Smith v. Phillips, 455 U.S.

209, 218 (1982) (in which no such presumption by op-

eration of law applied); see id. at 222 n.* (O'Connor, J.,

concurring).

V.

The sixth amendment guarantees to each defend-

ant a fair and impartial trial by a jury of his or her peers.

The right to trial by impartial jury, old as the Magna

Carta, is fundamental to our system of justice. See Dun-

can v. Louisiana, 391 U.S. 145, 151-56 (1968). Consist-

ency with this constitutional provision requires that

each juror lay aside a prior perception or opinion and

“render a verdict based on the evidence presented in

court.” Irvin v. Dowd, supra, 366 U.S. at 723. Conse-

quently, no juror may enter the jury box with an opinion

that can be changed oniy upon the presentation of evi-

dence by the defense. Juror Hrin admitted to requiring

such evidence, and therefore could not constitutionally

sit in judgment of Yount. Accordingly, while I dissent

from the view expressed in Judge Hunter’s opinion that

a change of venue was constitutionally required, I con-

cur in the judgment of the court, which directs that the

writ of habeas corpus be issued unless Yount is retried

within a reasonable time. I do so, however, only for the

reason that Juror Hrin was improperly seated.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

54a Opinion, U.S. District Court

Jon E. YOUNT, Petitioner,

Vv.

Ernest S. PATTON, Superintendent SCI—Camp Hill,

and Harvey Bartle III, Attorney General of the Com-

monwealth of Pennsylvania, Respondents.

Civ. A. No. 81-234.

UNITED STATES DISTRICT COURT,

W. D. Pennsylvania.

April 22, 1982.

[537 F. Supp. 873 (1982)]

OPINION

Ziec.en, District Judge.

Presently before the court is the petition of Jon E.

Yount for a writ of habeas corpus alleging that his

state court conviction of first degree murder is con-

stitutionally infirm. We hold that Yount

establish a violation of the Due Process Clause of

Fourteenth Amendment and therefore relief will

Opinion, U.S. District Court 55a

I. History of Case

Petitioner was indicted for the crimes of murder

and rape at No. 2 May Sessions 1966 in the Court of

Common Pleas of Clearfield County, Pennsylvania.

On October 7, 1966, he was convicted by a jury of

first degree murder and rape and an appeal was taken

from the judgment of sentence. The Supreme Court of

Pennsylvania reversed and granted a new trial. Com-

monwealth v. Yount, 435 Pa. 276, 256 A.2d 464

(1969), cert. denied, 397 U.S. 925, 90 S.Ct. 918, 25

L.Ed. 2d 104 (1970). The prosecutor dismissed the

rape charge prior to re-trial and, following selection of

a jury, Yount was again convicted of first degree

murder. A life sentence was imposed. An appeal was

taken.

The Supreme Court of Pennsylvania unanimously

affirmed the judgment in Commonwealth o. Yount,

455 Pa. 303, 314 A.2d 242 (1974), and petitioner filed

the instant pro se action, pursuant to 28 U.S.C. §2254,

advancing three issues. Counsel was

filed an amendment to the petition with additional

contentions. On March 2, 1982, the Supreme Court of

the United States announced its decision in Rose ov.

Lundy, U.S. , 102 S.Ct. 1198, 71 L.Ed. 2d

379 (1982). Counsel for petitioner then filed a motion

to amend the original and amended petitions to com-

ply with the teachings of Rose. There the Supreme

Court explained “that a district court must dismiss

EB

:

i

i

2

i

5

56a Opinion, U.S. District Court

On March 31, 1982, this court granted Yount’s

motion to delete from the original petition paragraphs

12-C(a), 12-C(b), 12-C(c), 12-C(d), 12-C(e), 12-C(f)

and 12 D, as well as subparagraphs 1, 2, 3 and 4(a)

through (f) of the amended petition. Thus we are re-

quired to decide the three issues raised by Yount at

paragraphs 12-A, 12-B and 12 C of the original peti-

tion, since it is clear that he has exhausted the

remedies available to him in the courts of Pennsylva-

nia. See, Brown v. Cuyler, 669 F.2d 155 (3d Cir.

1982),

This court is limited to those issues because as

Rose and Brown make clear we may consider only

claims that have been exhausted in state court. In

Yount II Justice Roberts, speaking for the Court,

specifically addressed the issues raised in paragraphs

12-A, 12-B and 12-C of the original petition. We need

not decide, of course, whether Yount may be preclud-

ed by Habeas Corpus Rule 9(b), 28 U.S.C, §2254,

from pursuing subsequent federal petitions by seeking

speedy federal review of the exhausted claims. But see,

Rose v. Lundy, U.S. at - , 102 S.Ct. at

1203-1205. In sum, we hold that petitioner has ex-

hausted his state court remedies as required by 28

U.S.C. §2254 (1976) with respect to the three

challenges set forth in the original petition for habeas

relief.

II. Discussion

Yount’s original petition was referred to a

magistrate of this court for consideration of the follow-

ing allegations:

Opinion, U.S. District Court 57a

12-A. Petitioner’s conviction was obtained

by a violation of his privilege against self-

incrimination through the use of oral statements

elicited without required Miranda warnings.

12-B. Petitioner’s conviction was obtained in

violation of his constitutional right to select and

empanel a fair, impartial and “indifferent” petit

jury.

12-C. Petitioner’s conviction was obtained

in violation of his constitutional right to a fair and

impartial trial as a result of trial court prejudicial

charge to the jury and included erroneous instruc-

tions.

The magistrate issued a report and recommenda-

tion in which he found no constitutional transgression

with respect to contentions 12-A and 12-C. We agree

with those findings and therefore we will adopt and

incorporate as the opinion of the court the firdings of

the magistrate as to those allegations of the original

petition. We reject, however, the recommendation of

the magistrate that a writ be granted and Jon Yount

discharged from custody unless, within 60 days, a new

trial is granted, predicated on a violation of the Due

Process Clause of the Fourteenth Amendment, because

petitioner was allegedly denied a fair and impartial

jury.

Our starting point must be the recent pronounce-

ment of the Supreme Court concerning the ambit of

our authority to reverse this state court judgment.

A federally issued writ of habeas corpus, of

course, reaches only convictions obtained in viola-

tion of some provision of the United States Con-

58a Opinion, U.S. District Court

stitution. As we said in Cupp v. Naughten, 414

U.S. 141, 146 [94 S.Ct. 396, 400, 38 L.Ed. 2d

368] (1973): ‘Before a federal court may overturn

a conviction resulting from a state trial ... it must

be established not merely that the [State’s action]

is undesirable, erroneous, or even ‘universally con-

demned,’ but that it violated some right which

was guaranteed to the defendant by the Four-

teenth Amendment.’

Absent such a constitutional violation, it was error

for the lower courts in this case to order a new

trial.... Federal courts hold no_ supervisory

authority over state judicial proceedings and may

intervene orily to correct wrongs of constitutional

dimension. Chandler v. Florida, 449 U.S. [560] at

570, 582-583 [101 S.Ct. 802 at 807, 813-814, 66

L.Ed. 2d 140]; Cupp wv. Naughten, supra, [414

U.S.] at 146 [94 S.Ct. at 400]. No such wrongs

occurred here.

Smith v. Phillips, U.S. , , 102 S.Ct. 940,

946, 71 L.Ed. 2d 78 (1982). In performing our

jurisprudential function, we have been cautioned by

the Supreme Court that the findings of a state court

judge are presumptively correct under 28 U.S.C.

§2254(d), and the presumption can only be overcome

by convincing evidence to the contrary. Id. at :

102 S.Ct. at 946; Summer v. Matter, 449 U.S. 539,

551, 101 S.Ct. 764, 771, 66 L.Ed. 2d 722 (1981).

Petitioner’s constitutional challenge of the decision

of the trial judge to deny timely motions for a change

of venue involves three discrete arguments. First, ex-

cessive and biased pretrial publicity prevented a fair

trial; second, substantial community bias required a

Opinion, U.S. District Court 59a

change of venue; and third, the trial court erred in de-

nying several challenges for cause. Petitioner bears the

burden of proving all facts entitling him to discharge,

Brown v. Cuyler, supra, at 158, and since he has

raised the issue of pretrial publicity, federal law re-

quires that Yount’s conviction may be overturned only

upon a showing that the publicity was so extreme as

to cause actual prejudice to a degree rendering a fair

trial impossible or that the press coverage has “utterly

corrupted” the trial. Murphy v. Florida, 421 U.S. 794

at 798, 95 S.Ct. 2031 at 2035, 44 L.Ed. 2d 589

(1974).

A.

The record in the instant case contains two

memoranda and one opinion by the trial judge re-

lating to his decision to deny a change of venue. Pre-

trial publicity is discussed in each. The first was filed

on September 21, 1970, prior to selection of the jury.

The court found:

[T]he evidence was limited to the fact that

without editorial! comment of any kinds the news-

papers in the County reported the decision of the

Supreme Court of Pennsylvania; but it is to be

noted that they not only referred to the dissenting

opinion and quoted it, but also to the majority

opinion and quoted it. We do not believe that the

mandates of the cases extend so far as to say that

the news media cannot publicize, without

editorial comment, the decisions of our Courts....

Brief of respondents at 20-21. The second memoran-

dum is dated November 14, 1970, after 156 jurors had

been interrogated during an 8-day period. The judge

found:

Opinion, U.S. District Court

The Court would also note that it has been 4

years since the first trial of this cause, and so far

as this Court can recall, there has been little, if

any, talk in public concerning the trial from that

time to the time when it was announced that a

trial date had been fixed....

Nor do we find any unfair inferences or prej-

udicial effects as to or against the defendant

resulting in any of the newspaper items which

have been the subject of the affidavit filed in this

regard on November 13, 1970. With all of the

publicity to which they refer, this Court is cogni-

zant that at no time since the commencement of

this case on November 4, 1970, have there been

any more than 4 spectators in the Court Room,

and at most times, 2 of these were ‘Court House

hangers on.’ This is some indication of the fact

that particularly in a community as small as ours,

there has not been any great effect created by any

publicity....

Brief of respondents at 24-25. The final factual finding

is found in the post-trial opinion of January 15, 1973.

The first of the trials occurred in 1966, and is

pointed out herein, the second one occurred in

1970. As the record will indicate there was prac-

tically no publicity given to this matter through

the news media in the meanwhile except to report

that a new trial had been granted by the Supreme

Court. It is to be noted also that throughout the

second trial there was practically no public in-

terest shown in the trial; one thing to be noted is

that on some days there being practically no per-

sons present even to listen to it....

Opinion, U.S. District Court 6la

The foregoing represent findings by a state court

judge that are presumptively correct under the teach-

ings of Summer, supra. The pretrial publicity in

Clearfield County prior to trial was found to be bal-

anced and accurate, and we cannot conclude from our

independent review of the record that there is convinc-

ing evidence to the contrary.

The journalistic reports that Yount was to be

retried for the crimes for which he was indicted were

not inflammatory so as to preclude a fair trial. To ac-

cept petitioner’s argument would require a change of

venue in all prominent criminal cases that are retried

merely because they are reported by the press. There

is no constitutional precedent for such an assertion.

The news reports concerning the exhaustion of various

jury panels and the progress of voir dire are to the

same effect. Finally, we find the record barren of

evidence to support petitioner’s content'»n that the

journalists of Clearfield County intentionally failed to

report the good faith decision of the prosecutor to

dismiss the rape charge prior to trial. The decision to

dismiss was based on a lack of admissible evidence at

the second trial and we find that the press accurately

reported the status of the case when the information

became public knowledge. See, Exs. P 1-11, mm, ss,

tt, uu, vv and yy.

Most importantly there is no evidence of record of

official misconduct either in dismissing the rape charge

prior to trial, or in influencing the publicity given the

case as in Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct.

1417, 10 L.Ed. 2d 663 (1963) or Sheppard v. Max-

well, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed. 2d 600

(1966). Nor does the pretrial publicity reveal the

62a Opinion, U.S. District Court

viciousness evidenced in Rideau, Sheppard or Irvin v.

Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed. 2d 751

(1961). Finally, the publicity in quantity does not ap-

proach the mischief detected in Sheppard. We are

presented, at best, with substantial knowledge in a

County of 78,000 citizens that a new trial had been

granted in a case involving a significant crime. We

find that petitioner has failed in his burden of

establishing publicity so extreme as to cause actual

prejudice rendering a fair trial impossible in Clearfield

County, or that the coverage utterly corrupted the

judicial process. Martin v. Warden, 653 F.2d 799, 805

(3d Cir. 1981).

B.

Yount next contends that the trial court’s decision

to deny a change of venue in the face of alleged

substantial community bias prevented the selection of

an impartial jury and thus denied him a fair trial in

contravention of the Sixth and Fourteenth Amend-

ments. Citing statistics that support a finding of

general knowledge of the pending cause, Brief of peti-

tioner at 7-8, 26-27, and that many of the prospective

jurors expressed fixed opinions as to guilt, Brief of

petitioner at 27, Yount would have us hold that the

trial judge committed error of constitutional

tagnitude when he denied a change of venue. We

disagree. The extensive latitude granted by the trial

judge during voir dire, as well as the responses of the

twelve jurors who were sworn to try this case satisfy

the constitutional standard of due process under the

Fourteenth Amendment.

Opinion, U.S. District Court 63a

Again we must look to the factual findings of the

trial court. In its opinion denying post-trial motions,

the court found:

The mere fact that it took such a long time

to select a jury was simply that defendant raised

so many questions and the Court exercised its

discretion to assure that there could be no com-

plaint about the final jury empanelled. Certainly

because it takes a lengthy time to select a jury is

not a sufficient basis for declaring that there is

any prejudice or bias whatever involved. In fact,

as already indicated this Court perceived no bias

or prejudice resulting in any manner.

Brief of respondents at 28. The court also made

reference to this contention in its second memorandum

dated November 14, 1970, after 121 jurors had been

excused for cause. Twelve jurors had been seated. The

court observed:

It is to be considered also that fair trial is not

precluded in this case; when one recognizes that

almost all, if not all, jurors already seated had no

prior or present fixed opinion, and this was

established by a very searching examination and

cross-examination by counsel for defendant.

This ambiguous statement by the trial court and

our duty of independent review requires us to examine

the voir dire proceedings to determine whether there is

evidence of community passion so pervasive that the

accused was denied a fair trial before a “panel of im-

partial, indifferent jurors.” Irvin v. Dowd, 366 U.S.

717, 722, 81 S.Ct. 1639, 1642, 6 L.Ed. 2d 751 (1961).

We find there is none.

64a Opinion, U.S. District Court

Jurors Blair Hoover, Clair Clapsaddle, John

Yorke, Mary Jane Waple, Martin Karetski, Julia C.

Hummell, Mrs. Jessie M. Parks, Albert I. Undercoffer,

and Robert P. Murphy were seated without challenge

or objection from Yount. Thus a strong argument can

be made that petitioner has failed to preserve any

argument with respect to these jurors, since he was

represented throughout the trial by able, experienced

and prominent counsel. More importantly, however,

these jurors expressed no fixed opinion concerning

guilt. Jurors Irene Kurtz, John T. Harchak and James

J. Hrin were challenged for cause but Kurtz and Har-

chak indicated that they harbored no fixed opinion,

and Hrin stated that, although he had an opinion, he

would keep an open mind and would base his decision

on the evidence presented at trial.

Yount continues to urge that these jurors main-

tained a fixed opinion concerning his guilt following

lengthy interrogation. But our reading of the record is

to the contrary. It is true, of course, that several jurors

expressed an opinion on the ultimate issue at the

outset. But this does not disqualify a citizen from par-

ticipation in the judicial process if the juror is able to

set aside any preconceived notion and render a verdict

based on the evidence presented in court. Martin v.

Warden, 653 F.2d 799, 806 (3d Cir. 1981); United

States v. Provenzano, 620 F.2d 985, 995 (3d Cir.

1980), cert. denied, 449 U.S. 899, 101 S.Ct. 267, 66

L.Ed. 2d 129 (1980).

Due to petitioner’s allegation that community bias

prevented the selection of a fair and impartial jury,

we will review the critical responses of each juror dur-

ing voir dire.

Opinion, U.S. District Court 65a

JUROR NO. 1—Blair Hoover

Q. Do you have any kind of fixed opinion

as to his guilt or innocence?

A. On this question I would have to hear

both sides—the facts—before I feel that I could

express a true opinion.

Q. The question was, Mr. Hoover, whether

or not you have an opinion now, at this time?

A. No.

Q. No opinion at all?

A. No.

Q. And back at the time you heard these

things and read these things, did you have an

opinion?

A. Let’s see. I would say that you’d come to

some opinion, as far as just opinion on what you

heard or what you may have read, but to me, as

the way I’ve seen things in papers, in many

papers, not to discredit any one paper, this don’t

say this is fact. So as far as forming a true opin-

ion, I couldn’t just do it by what I read. You’d

read one thing and then another and somebody

else would say something else. There was a lot of

different opinions and I heard opinions both ways

on it, in many different ways. Does that answer

your question?

Q. It makes me think of a couple more.

A. Let me say this. If this would help you

any, as I say, I heard as far as hearing—it wasn’t

Opinion, U.S. District Court

one sided. I heard both ways so until you would

know the true facts you couldn’t—no one could

come to a true opinion.

Transcript at 64-65.

Q. Notwithstanding what you have read

and heard concerning Mr. Yount, you are able to

presume Mr. Yount innocent of any offense at this

time?

A. Well, I feel any man or woman is inno-

cent until proven guilty.

Q. My question is, do you feel that way

concerning Mr. Yount at this time?

A. That would cover Mr. Yount too. I said

any man or woman.

Q. You definitely have that feeling about

Mr. Yount at this time—that he is innocent?

A. He would have to be innocent until

proven guilty.

Transcript at 69.

JUROR NO. 2—Clair Clapsaddle

Q. You have formed some opinion?

A. Well, yes.

Q. Now, is that opinion rather firm and

fixed in your mind?

A. Well, I couldn’t say it would be, no.

Q. Are you aware of a principle of law we

have in Pennsylvania that says an individual who

Opinion, U.S. District Court 67a

is accused of a crime is presumed innocent until

proven guilty—are you aware of that?

A. Yes sir.

Q. Would your present opinion be such that

you could accept that general rule that Mr. Yount

is presently presumed innocent until proven guil-

ty?

A. That’s the way it’s suppose to be and.

Q. Assuming it is supposed to be one way—

my question is, will you accept it?

A. Yes.

Q. Would you?

A. Yes.

Transcript at 206-207.

Q. Is there anything you know of at this

time which would influence your judgment in this

case if you were a juror other than the evidence

which would come forth in this case at this time?

A. No.

Q. Mr. Clapsaddle, at one point you did in-

dicate you had had some opinion?

A. Yes.

Q. Are you able to erase that opinion from

your mind now and afford the defendant the

presumption of innocence?

A. Yes I could, yes.

68a

Opinion, U.S, District Court

Q. Having been informed again, let me just

say this once more—having been informed now

that the defendant is entitled to this presumption

of innocence that I mentioned to you, have you

erased your opinion and are you now affording

the defendant that presumption?

A. That he is innocent?

Q. Yes, until proven guilty?

A. ‘is.

Transcript at 210-211.

JUROR NO. 3—John Yorke

Q. Mr. Yorke, do you know of the matter

involving Jon Young?

A. No.

Q. Have you read anything about Mr.

Yount?

A. No.

Q. You don’t know anything about the

reason why you're here—or why you were called

to come here as a prospective juror?

A. No I don’t know.

Q. Have you read anything in the news- ?

paper about it?

A. No.

Q. Have you heard any discussions or heard

any radio broadcasts about it?

A. No.

Transcript at 370.

Opinion, U.S. District Court 69a

Q. Mr. Yorke, do you have any opinion as

to this case that we're talking about. Do you

know what case we're talking about now?

A. Yes, it’s a Mr. Yon you say.

Q. Jon E. Yount?

A. Yes, Jon Yount.

Q. Do you have any reason—strike that —

do you have any opinion as to his guilt or in-

nocence?

A. No I have no opinion?

Q. You have no opinion at all?

A. No.

Transcript at 376.

JUROR NO. 4—Mary Jane Waple

Q. Do you Mrs. Waple, presently at this

time, have an opinion about Mr. Yount’s guilt or

innocence?

A. No.

Q. You don’t have any opinion at all?

A. I don’t know anything about the man or

about this case, only what I have read years ago

and hardly remember that.

Q. Well you do remember something based

upon what you read and heard several years ago

—is that true?

A. Yes.

70a

Opinion, U.S. District Court

Q. Does that cause you to have an opinion

at this time about him — without telling what -your

opinion is?

A. I don’t have an opinion.

Q. You don’t have any opinion?

A. No. I just don’t know.

Q. You don’t know what?

A. I don’t know if he’s innocent or guilty.

Q. I'm not asking you that.

A. I don’t have an opinion. I’m not judging

Transcript at 412.

JUROR NO. 5—James F. Hrin

Q. Let me ask—if you were to be selected

as a juror in this case and take the jury box, could

you erase or remove the opinion you now hold

and render a verdict based solely on the evidence

and law produced at this trial?

A. It is very possible. I wouldn’t say for

sure.

Q. Do you think you could?

A. I think I possibly could.

Q. Then the opinion you hold is not

necessarily a fixed and immobile opinion?

A. I would say not, because I work at a job

where I have to change my mind constantly.

Q. Can you enter the jury box with an

open mind prepared to find your verdict on the

Opinion, U.S. District Court 7la

evidence as presented at trial and the law

presented by the Judge?

A. That I could do.

Q. Did I understand Mr. Hrin you would

require some—you would require evidence or

something before you could change your opinion

you now have?

A. Definitely. If the facts show a difference

from what I had originally—had been led to

believe, I would definitely change my mind.

Q. But until you’re shown those facts, you

would not change your mind—is that your posi-

tion?

A. Well—I have nothing else to go on.

Q. I understand. Then the answer is yes—

you would not change your mind until you were

presented facts?

A. Right, but I would enter it with an open

mind.

Transcript at 441-442.

JUROR NO. 6—Martin Karetski

Q. Do you have an opinion today as to his

guilt or innocence?

A. It’s been a long time ago and I’m not too

sure now. It was in the paper he plead not guilty.

Q. What you just read the other day--

A. I think about Tuesday or Wednesday's

paper.

72a

Opinion, U.S. District Court

Q. So based upon what you read about it a

long time ago as well as what you read about it

within the last few days, do you have an opinion

as to his guilt or innocence?

A. Honestly, I couldn’t say now.

Q. Are you saying you don’t have an opin-

ion or don’t know if you have an opinion?

A. I probably don’t know if I have an opin-

ion.

Q. Let me ask you this then. In case you do

have an opinion, could you wipe it out of your

mind —erase it out of your mind before you would

take a seat in the jury box and hear whatever

evidence you might hear?

A. As it is right now I have no opinion now

—four or five years ago I probably did but right

now I don’t.

Transcript at 561-562.

JUROR NO. 7—Julia C. Hummel

Q. Then you do have an opinion regardless

of what it was based on—do you have an opinion

right now?

A. I really don’t know what to say. I don’t

know what would be the truth, whether to say

yes or no.

Q. You mean you can’t tell which would be

the truth and which would not be the truth?

A. I can’t say that he was guilty or that he

wasn't.

Opinion, U.S. District Court 73a

Q. I'm not asking you that. I’m asking

whether or not you have an opinion as to which it

is, without telling me which opinion you have.

Do you have an opinion as of right now?

A. No.

Transcript at 792-793.

JUROR NO. 8—Mrs. Jessie M. Parks

Q. During the process of thinking about it

and before you went through the process of think-

ing less and less about it, did you form any opin-

ion as to the guilt or innocence of Mr. Yount?

A. Well, truthfully I can say this. I felt this

way about it. You know they say there’s two sides

to every story. Like they say, our Courts are here

until the man is proved guilty or innocent and |

felt this way—and in a lot of ways it didn’t jibe

with me and in a lot of ways it did. I can’t say

he’s guilty or I can’t sa¥ he isn’t guilty and that’s

what my opinion is. I’m not saying yes or no. But

I felt that I wouldn’t want to be on the jury but

then I felt—if it was my duty and I would be

called I would do the best of my ability but here

is Judge Cherry this morning—his summation of

it. I can’t exactly say in his words—either you

have to prove whether he is guilty or whether he

isn’t. If you can remember what you said when

you talked—I’m sorry—what I mean—you can

say well he is, but when you get to thinking

74a

Opinion, U.S. District Court

and — but so—that’s the way I feel about it. Now

as far as my opinion which you want, well, I

would definitely have to hear it before I could say

one way or other. If I’m selected that’s okay and

if you don’t think I’m qualified that’s okay too.

Transcript at 814.

JUROR NO. 9—Albert I. Undercoffer

Q. Well, taking all of these factors into con-

sideration as you have Mr. Undercoffer, would

you give it a little bit of thought now and tell me

whether or not you have an opinion as of right

now, just based upon what you know and have

heard and thought about. Do you have an opinion

as of right now as to his guilt or innocence?

A. No. I think I would have to hear the

testimony of both sides and I think I would form

my opinion after I hear the testimony of both

sides.

* * . . . .

A. It’s a little bit like the Court, if

somebody makes a statement in Court, the Judge

would say, strike that from the record. The jury

would be supposed to forget about that. It would

be a very difficult thing to do.

Q. It sure is. We have been trying to battle

that one for years.

A. I believe for myself—I believe that I

could. I would be capable of rendering a fair

decision on what I had heard here. I have faith

enough in myself.

Transcript at 857-858.

Opinion, U.S. District Court 75a

JUROR NO. 10—Robert P. Murphy

Q. Have you formed an opinion as to the

guilt or innocence of this defendant?

A. Nol have not.

Q. May I assume then Mr. Murphy, if you

were selected as a juror you could go into the jury

box and base your verdict solely on the testimony

and evidence along with the instructions that the

Judge would give you?

A. That’s true.

Q. And that you would carry no opinion

with you into the jury box?

A. No.

Transcript at 922.

JUROR NO. 11—Irene Kurtz

Q. Have you formed an opinion as to the

innocence or guilt of this defendant?

A. No.

Q. If you were selected to sit as a juror,

would you be able to base your verdict solely —

only on the testimony and evidence you would

hear and the instructions the Judge would give

youP

A. Yes.

Q. And that no prior information or idea

you may have would enter into your deliberation?

A. No.

Transcript at 988.

76a Opinion, U.S. District Court

JUROR NO. 12—John T. Harchak

Q. Have you formed an opinion as to the

guilt or innocence of this defendant?

A. No I haven't.

Q. Mr. Harchak, if you were selected as a

juror in this case, would you be able to enter the

jury box and base your verdict of guilty or inno-

cent only on the evidence and testimony that you

would hear along with the instructions that the

Judge would give you?

A. Yes.

Q. And you would have no other influenc-

ing factors in arriving at your verdict?

A. No, other than the testimony I would

hear in this Court Room.

Transcript at 1119.

These responses not only meet the test of Murphy

and Martin but refute petitioner’s assertion that he

failed to obtain a fair and “indifferent” jury in Clear-

field County. Moreover, his assertion of substantial

community bias and presumptive prejudice is belied by

the record. The state court initially summoned

seventy-three prospective jurors The trial judge ex-

cused fifty-six for cause and Yount exercised nine

peremptory challenges. The Commonwealth exercised

one peremptory challenge and four jurors were seated,

after one seated juror was excused due to a death of a

family member. These percentages are not remarkable

to anyone familiar with the difficulty in selecting a

Opinion, U.S. District Court 77a

homicide jury in Pennsylvania! and we find neither an

abuse of discretion nor a constitutional violation when

the trial judge determined to summon additional

jurors while denying Yount’s motions to change venue.

The trial court anc counsel interrogated an addi-

tional sixty-eight citizens, or one hundred forty-one in

total, before a jury was selected. Twenty-three

peremptory challenges had been exercised. Extensive

latitude was granted during voir dire to ascertain the

“Mental attitude of appropriate indifference.” Irvin v.

Dowd, 366 U.S. at 724-25, 81 S.Ct. at 1643-1644, and

we find nothing in the pretrial publicity, or the

responses Of the citizens who were excused for cause,

or the number of such recusals, or the attitudes of the

jurors who were seated, that leads to the conclusion

that the venire was presumptively prejudiced so as to

require a change of venue. We hold that petitioner has

failed to sustain his burden of proving that the trial

court committed constitutional error when it denied

the motions to change venue. Petitioner has failed to

establish that community bias prevented the selection

of an impartial jury in Clearfield County in con-

travention of the Fourteenth Amendment. P

C.

Petitioner’s final argument relates to the trial

court’s decision to deny certain challenges for cause

thereby requiring the accused to exercise peremptory

' As was done here, Pennsylvania law requires individual

voir dire beyond the presence of other jurors; under oath; record-

ed; and with the participation of the court and counsel.

Pa.R.Crim.P. 1106.

78a Opinion, U.S. District Court

challenges. We find no constitutional infirmity in this

regard.

Irene Kurtz and John T. Harchak were seated as

jurors after Yount had exhausted his discretionary

challenges. But as we have noted, a challenge for

cause with respect to both jurors was not constitu-

tionally required. Kurtz stated that she maintained no

opinion as to guilt, and further that she was able to

decide the case solely upon the evidence presented.

Transcript at 988. The testimony, of Harchak is to the

same effect. Transcript at 1119. The decision of the

trial judge was a discretionary function and did not

implicate the Fourteenth Amendment.

Petitioner also urges that a challenge for cause

was constitutionally required with regard to potential

_jurors Marcia Polkinghorn, James F. Decker, Marie E.

Richardson and Ruth I. Hudson. None of these persons

were seated as jurors but Yount claims that he was re-

quired to utilize discretionary challenges due to the

trial court’s erroneous rulings.

Marcia Polkinghorn testified that she had an opin-

ion of guilt following publication of the prior ad-

judication. Transcript at 755-56. Further that she

would “try” to defer her opinion in deference to the

law and facts presented in court. Transcript at 764.

James Decker indicated that he was of the mind that

Jon Yount was guilty. Transcript at 898, 900. But he

also testified that he would “try the case solely on the

evidence and law.” Transcript at 901. Marie Richard-

son observed that she had no opinion as to guilt,

Transcript at 957, but she preferred not to serve due

to anxiety as well as a recent death in the family.

Transcript at 964. Finally, Ruth Hudson responded

Opinion, U.S. District Court 79a

that she had a fixed opinion of guilt, Transcript at

1113, but she also testified that she was willing and

able to set aside her opinion and base a verdict solely

upon the evidence. Transcript at 1113-1114. Yount’s

challenges for cause were denied in each instance.

None of these citizens sat in judgment of the facts

because the accused exercised one of the twenty

peremptory challenges provided by Pennsylvania law.

In addition, no authority is required for the precept

that the grant or denial of a challenge for cause is a

discretionary function of the trial judge. Only when

an accused is denied a fair and impartial tribunal is

the Fourteenth Amendment implicated. We find no

such violation here.

The decision of the judge to deny a cause

challenge to Marie Richardson was proper. Physical

capacity to serve is a judicial decision and not one to

be left to the judgment of an individual juror. The

trial judge found that Richardson was capable of serv-

ing on a sequestered jury and we perceive no constitu-

tional error in that ruling.

The denial of petitioner’s challenges for cause as

to Polkinghorn, Decker and Hudson did not violate

the Fourteenth Amendment even if we may disagree

with those rulings. First, the trial judge granted

challenges for cause prior to and following the inter-

rogation of these prospective jurors. See Transcript at

1161. Second, Yount retained additional peremptory

challenges following the no cause rulings concerning

all three prospective jurors. Third, petitioner exercised

a peremptory challenge to Margaret Rokosky,

Transcript at 1138, after he exercised a similar

challenge as to Ruth Hudson. And fourth, the jurors

80a Opinion, U.S. District Court

and alternates who were seated after petitioner had

exhausted his peremptory challenges met the test of

Murphy v. Florida, 421 U.S. 794, 799-803, 95 S.Ct.

2031, 2035-2037, 44 L.Ed. 2d 652 (1974) and Martin

v. Warden, 653 F.2d 799 (3d Cir. 1981). We hold

that petitioner has failed to sustain his burden of prov-

ing the substantive elements of his claim.

In sum, we hold the petitioner, Jon Yount, has

failed to establish that: (1) excessive and biased

pretrial publicity prevented a fair trial; (2) substantial

and undue community bias required a change of

venue; and (3) the trial court erred when it denied

several challenges for cause. Petitioner’s exhausted

state claims assail, in part, the factual findings of an

experienced trial judge and an appellate jurist of

renown. We find an absence of convincing evidence to

contradict their findings and we further hold, based

on an independent review of the record, that peti-

tioner has failed to establish that-this state court judg-

ment is violative of the Due Process Clause of >the

Fourteenth Amendment.

A written order will follow denying the petition

for habeas relief with prejudice.

Order, U.S. District Court 8la

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVA-

NIA

Civil Action 81-234

JON E. YOUNT,

Petitioner,

vs.

EARNEST S. PATTON, Superintendent, SCI—Camp

Hill, and HARVEY BARTLE III, ATTORNEY

GENERAL OF THE COMMONWEALTH OF PENN-

SYLVANIA,

Respondents.

ORDER OF COURT

AND NOW, this 22nd day of April, 1982,

IT IS ORDERED that the petition of Jon E.

Yount for writ of habeas corpus be and hereby is

denied with prejudice.

(s) Donald E. Ziegler

Donald E. Ziegler

United States District Judge

82a Opinion, Supreme Court of Pa.

COMMONWEALTH of Pennsylvania,

Appellee,

v.

Jon E. YOUNT, Appellant.

SUPREME COURT OF PENNSYLVANIA.

Jan. 24, 1974.

[455 Pa. 303, 314 A.2d 242]

Before Jones, C. J. and Eacen, O'BRIEN,

Rosperts, Pomeroy, Nix and MANDERINO, JJ.

OPINION OF THE COURT

Rosenrts, Justice.

In October of 1966, a jury found appellant guilty

of the crimes of murder in the first degree and rape. A

sentence of life imprisonment was imposed. On ap-

peal, this Court reversed the judgment of sentence and

granted a new trial because appellant’s rights, as man-

dated by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct.

1602, 16 L.Ed. 2d 694 (1966), were violated. Com-

monwealth v. Yount, 435 Pa. 276, 256 A.2d 464

(1969) cert. denied, 397 U.S. 925, 90 S.Ct. 918, 25

L.Ed. 2d 104 (1970).

Opinion, Supreme Court of Pa. 83a

On retrial in November, 1970, a jury again found

appellant guilty of murder in the first degree,' and the

penalty was again fixed at life imprisonment. Post-trial

motions were denied and this direct appeal followed.?

We now affirm.

On April 28, 1966, the body of Pamela Sue

Rimer, an eighteen year-old high school student, was

discovered in a wooded area near her home in

Luthersburg, Pennsylvania. One of her stockings was

knotted and tied around her neck. An autopsy re-

vealed that death was caused by strangulation. Fur-

ther examination disclosed three slashes across the vic-

tim’s throat and cuts of the fingers of her left hand,

inflicted by a sharp instrument, and numerous wounds

about her head, caused by a blunt instrument.

At approximately 5:45 a. m. on the morning of

April 29, 1966, appellant, a teacher at the school the

deceased had attended, voluntarily appeared at the

state police substation in DuBois, Pennsylvania, and

rang the doorbell. An officer opened the door and

asked whether he could be of assistance. Appellant

stated, “I am the man you are looking for.” The of-

ficer asked whether he was referring to the “incident

in Luthersburg,” and appellant responded in the affir-

mative.

The officer then asked appellant to come into the

police station and be seated. Leaving appellant unat-

1 Appell

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