Petition — HOOD v. UNITED STATES (Nos. 83-860, 83-858)
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83-860
Office - Supreme Court, U.S.
FILED
No. NOV 25 1983
IN THE LE DE = Ss EVAS,
Supreme Court of the Wnited-States ——
OcTOBER TERM, 1983
UNITED STATES OF AMERICA
Respondent,
Vs.
CLype Epwarpb Hoop, Jr.,
and James M. ALLEN,
Petitioners.
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
WILLIAM R. WILLIS, Jr.
ALFRED H. KNIGHT
Wituis & KNIGHT
215 Second Avenue, North
Nashville, Tennessee 37201
(615) 259-9600
Counsel for Petitioner
Clyde Edward Hood
Tyree B. Harris, Ill wt
Tyree B. Harris, 1V
Dopson, HARRIS, ROBINSON
and ADEN
315 Union Street, Suite 900
Nashville City Bank Building
Nashville, Tennessee 37201
(615) 244-6840
Counsel for Petitioner
James M. Allen
November 23, 1983
aS ————————————
St. Louis Law Printing Co., Inc., 411 No. Tenth Street 63101 314-231-4477
QUESTIONS PRESENTED
I.
In a criminal trial involving massive adverse pre-trial publici-
ty, does the trial court commit reversible error in its voir dire ex-
amination of prospective jurors:
1) If it refuses defense counsels’ repeated written and oral re-
quests that prospective jurors be asked whether, and to what ex-
tent, they have been exposed to pre-trial publicity about the
defendants and the case; what, if any, knowledge they have
about the defendants and case; and whether they hold opinions
concerning the guilt or innocence of the defendants; and
2) If it confines all voir dire questioning concerning prospec-
tive jurors’ exposure to adverse publicity, and knowledge and
opinions concerning the defendants and the case, to the follow-
ing statement, repeated en masse to prospective jurors:
[Will you be able to put from your mind whatever
you may have seen and heard, and any opinion
which you may have tentatively reached, and then
to decide this case solely on the facts as you deter-
mine them to be, on the sole basis of the evidence
which will be adduced in this trial, after application
of the appropriate law? (Accepting silence as as-
sent).
Whether this method of questioning deprives defendants of a
reasonable opportunity to secure a fair and impartial jury, in
that it permits prospective jurors to subjectively decide whether
they hold disqualifying biases, without providing the court or
counsel with any objective information with which to in-
dependently determine whether jurors actually hold such dis-
qualifying biases.
Ill.
Whether this method of questioning unreasonably impairs
the defendants’ exercise of their right of peremptory challenge,
by depriving them of information essential to the intelligent ex-
ercise of that right.
TABLE OF CONTENTS
Page
SEI. cwiavuneuce cba sebaeh ae ct we etn i
ET PP rr Oe Oe ere l
en gr eg i ren Lanercee I
Constitutional Provisions Involved .................. 2
eT ee GE hl etewew seine s ve eassekere's 2
1. Proceedings In The District Court For The
Middle District Of Tennessee.............0.000- 2
2. The Court of Appeals Panel Decision ....... 6
3. The Court of Appeals en banc Decision...... 7
Reasons For Granting The Petition.................. 10
1. Conflict With Supreme Court Holdings—
Disqualification For Cause .........cccccsccees 10
2. Conflict With The Holdings Of Other Circuits
—Disqualification For Cause .................. 12
3. Conflict With The Holdings Of Other Circuits
—Impairment Of The Right Of Peremptory
GC bits coh ba edcs eae ob eh lesa weerecets 1S
4. Impact Of The Decision Upon The Ad-
Rs HD Kc bes cbsarcrscusacevees. 15
A. It will unnecessarily impair the right to a
fair jury in highly publicized cases, by permit-
ting trial judges to discard, without justifica-
tion, the only effective means of insuring a
fair jury—intensive voir dire examination ... . 16
B. The holding is illogical and confusing,
because it authorizes the greatest restrictions
upon voir dire in those cases in which pre-trial
publicity has been the most prejudicial ...... 17
C. The decision unfairly imposes the
burden of proving prejudice upon the defen-
dant, while denying him the means of sustain-
RTS PR PES CT eee Ty 18
ED 5 cca Cavasaveseauodiacanearacs nes edvucun 19
Appendix:
Opinion of U.S. Court of Appeals .................. A-l
Cent SI OU PONE oo can cc ccteccccesccs A-65
Portion of Memorandum In Support Of Motion Of
Leonard Ray Blanton For Right Of His Counsel
To Participate In Voir Dire Examination......... A-66
Portion of the proposed voir dire questions submitted
Sr a ne SII 6 o.bce6c dee wccscccseer A-68
Motion of defendant Hood requesting voir dire ex-
amination of prospective jurors individually ...... A-71
Portion of the proposed voir dire questions submitted
er ee I ION sg oc ce tiacc ccvesadecncanes A-72
Counsels’ requests for direct questioning of jurors con-
cerning exposure to publicity ................... A-75
TABLE OF AUTHORITIES
Cases:
Brinlee v. Crisp, 608 F.2d 839 (10th Cir. 1976)......... 12
Calley v. Callaway, 519 F.2d 184 (Sth Cir. 1975) ....... 16
‘ +
Irvin v. Dowd, 366 U.S. 717, 6 L. Ed. 2d 1250 (1969)... 10,11
Marshall v. United States, 360 U.S. 310, 3 L. Ed. 2d
INL chon cites vous ad waiabaceeeneea uae’ 10,11
Nebraska Press Association v. Stuart, 427 U.S. 539,
a I os hci oe eka eS cova ee ead 16
Patriarca v. United States, 402 F.2d 314 (Ist Cir. 1968) . 12,14
People v. Manson, 61 Cal. App. 3d 102 (1976) ........ 16
Shepard v. Maxwell, 384 U.S. 333, 16 L. Ed. 2d 600
RAAT A al a Pe MRE RD Sno REN A ee ae 16
Silverthorne v. United States, 400 F.2d 627 (9th Cir.
EE er De lee age ees AS PLD, Sank 2 12,14
Swain v. Alabama, 80 U.S. 202, 13 L. Ed. 2d 759 (1965) 15
United States v. Blount, 479 F.2d 650 (6th Cir. 1973) ... 15
United States v. Caldwell, 543 F.2d 1333 (D.C. Cir.
EIEN EL nT Om wae He 12
United States v. Davis, 583 F.2d 190 (Sth Cir. 1978) .... 12
United States v. Dellinger, 472 F.2d 340 (7th Cir. 1972) 12,14,15
United States v. Denno, 313 F.2d 364 (2nd Cir. en banc
Se rs. de Ca be ka Adware beeen eee 12
United States v. Ehrlichman, 546 F.2d 910 (D.C. Cir.
Pda cavccenkatavedvsdvekewasnssneenen 16
United States v. Haldeman, 559 F.2d 31 (D.C. Cir.
SU Gt Lacs hones ca seus kai ameeeuewh ase 16
United States v. Hawkins, 658 F.2d 279 (Sth Cir. 1981) 12,13,14
United States v. Johnson, 584 F.2d 148 (6th Cir. 1978). . 15
United States v. Provenzano, 620 F.2d 985 (3rd Cir.
DN oN au de tia cds vewene pene bee netreun 12
vi
Statutes:
re 2
Constitutional Provisions:
Constitution of the United States, Sixth Amendment... 2,19
No.
IN THE
Supreme Court of the United States
OcToOBER TERM, 1983
,
UnitED STATES OF AMERICA
Respondent,
VS.
Ciype Epwarpb Hoop, Jr.,
and JamMes M. ALLEN,
Petitioners.
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
The Petitioners, Clyde Edward Hood, Jr. and James M.
Allen respectfully pray that a Writ of Certiorari issue to review
the en banc judgment and opinion of the United States Court of
Appeals for the Sixth Circuit, entered in this case on September
28, 1983.
OPINIONS BELOW
The panel opinion of the Court of Appeals, reversing the
defendants’ convictions, is reported at 700 F.2d, 298 (6th Cir.
1983). The en banc opinion of the Court of Appeals, affirming
the petitioners’ convictions upon rehearing, is not yet generally
reported, and is reprinted in the appendix.
JURISDICTION
The judgment of the Court of Appeals for the Sixth Circuit
was entered on September 28, 1983, and this Petition for Cer-
)
|
tiorari was filed within 60 days of that date. This Court’s
jurisdiction is invoked pursuant to 28 USC Sec. 1254 (1).
CONSTITUTIONAL PROVISION INVOLVED
The Sixth Amendment to the United States Constitution pro-
vides in pertinent part:
Rights of the accused—In all criminal prosecutions, the ac-
cused shall enjoy the right to a speedy and public trial, by an im-
partial jury of the State and District wherein the crime shall
have been committed. . .
STATEMENT OF THE CASE
1. Proceedings In The District Court For The Middle District
Of Tennessee.
The Defendants in this case were Leonard Ray Blanton,
Governor of Tennessee from January, 1975 to January, 1979;
James M. Allen, a special consultant to Blanton for the first six
months of his administration; and Clyde Edward Hood, a
special assistant to Blanton from January, 1975 to November,
1977. The defendants were charged, in an indictment returned
on October 29, 1980, with eight counts of mail fraud (18 USC
1341), one count of Hobbs Act violation (18 USC 1951) and one
count of conspiracy (18 USC 371). On March 12, 1981, a
superseding indictment was issued, adding an additional mail
fraud count. The indictments charged the defendants with
unlawful conduct in connection with the issuance of retail li-
quor licenses by the Tennessee Alcoholic Beverage Commission.
The pre-trial publicity concerning the defendants and the case
was massive and adverse to a degree probably unprecedented in
Tennessee judicial history. The publicity included: 1) Con-
tinuous negative publicity from 1975 to the date of the indict-
ment concerning a succession of alleged illegal, improper and
unpopular actions by Blanton and members of his administra-
a ee
tion, which culminated in the official censor of Blanton by the
Tennessee State Legislature, and his premature ouster from of-
fice by the swearing in of his successor several days early; 2) The
pre-trial publication of the details of the prosecution’s case in
Nashville’s newspapers, including verbatim publication of the
indictment (which was so detailed that it, in effect, pled the
Government’s evidence), and publication of the substance of
the testimony of the Government's principal witness, which was
taken in a supposedly closed pre-trial deposition; and 3)
Newspaper coverage of a series of criminal proceedings against
Blanton's brother and uncle, and former members of the Blan-
ton administration, which occurred contemporaneously with,
or within weeks of the commencement of, the trial of the pre-
sent defendants.
The trial record contains 240 articles and editorials reflecting
this adverse publicity. All of the judges who reviewed the record
recognized that the publicity was massive, and potentially pre-
judicial. '
Prior to the trial, each of the defendants submitted written
questions to be asked prospective jurors during voir dire. In-
cluded were detailed questions concerning prospective jurors’
exposure to publicity about the defendants and the case, concern-
ing their knowledge about the facts of the case, and concerning
the existence, nature and substance of any opinions they held
' The District Judge stated: ‘‘! am shatteringly aware, through the
exhibits and otherwise, of the publicity that has already occurred,"’
and conceded that it created a ‘‘serious problem."' The majority en
banc opinion stated that ‘‘there was an extraordinary amount of pre-
trial publicity concerning this case and other cases involving officials
of the Blanton administration and some of Blanton's relatives."’ Judge
Engel’ s dissenting opinion characterized the pre-trial publicity as
y accusatory’’ and ‘ Sovenipenp- " Appendix, pp.
A-7, A-39, A-40.
ds dies
about the defendants or the case.’ Each of the defendants re-
quested that, to the extent necessary, prospective jurors be ques-
tioned individually, and out of the presence of other prospective
jurors.’
The trial court‘ refused to ask or permit the asking of the re-
quested questions, or of any comparable questions. He neither
asked nor permitted questions concerning veniremen’s exposure
to pretrial publicity, or their knowledge concerning the defen-
dants or the case. He neither asked nor permitted questions con-
cerning the existence or nature of opinions which veniremen
held about the defendants or the case. Instead, he merely asked ©
the veniremen to subjectively decide whether they held biases so
strong as to, in their opinion, disqualify them from fairly trying
the case. The form of this questioning, which was addressed en
masse to groups of veniremen throughout the voir dire process,
was as follows:
? Appendix, pp. A-60, 68-70, 72-74.
In her opinion concurring with the en banc majority, Judge Ken-
nedy indicates that the defendants waived their right to individual
questioning of jurors. As Judge Engel's dissenting opinion indicates,
this is simply a misreading of the record. In fact, counsel for all three
defendants made timely and specific requests that prospective jurors
be questioned individually. See, App., pp. A-37, 67, 71.
* The trial judge was John W. Peck, Senior Judge of the Sixth Cir-
cuit Court of Appeals, who was designated to sit after the local district
court judges recused themselves.
| am sure all of you have at some time read something
about this case in the newspapers, have heard something
concerning it on the radio at sometime, or have seen or
heard reference to it on television at some time.
ce
Similarly, it is entirely likely some of you may have formed
some tentative opinion concerning the probable guilt or in-
nocence of some of the persons involved, including these
defendants. However, the test to be applied in determining
your qualifications to sit as jurors is not whether you have
heard something about the case from the news media or
whether you have formed any kind of a tentative opinion
based on such reports, rather—and I put this in the form
of a question—the test is, will you be able to put from your
minds whatever you may have seen and heard, and any
opinion which you may have tentatively reached, and then
to decide this case solely on the facts as you determine
them to be, on the sole basis of the evidence which will be
adduced in this trial after application of the appropriate
law?’’ App., p. A-65.
Thirteen prospective jurors responded by stating that they
held opinions which they considered to be disqualifying. The
others made no response. The court accepted their silence as
meaning that they had subjectively decided that they had no in-
formation, and held no opinions, which would disqualify them
from sitting as jurors. Despite repeated, urgent requests by all
defense counsel’, which were joined in by the United States at-
torney*, no direct questioning was permitted concerning
veniremen’s exposure to publicity, or the existence or nature of
any adverse opinions they held.’
‘ App., pp. A-75-76.
* Assistant United States Attorney Aleta Arthur stated: ‘*{We]
would join in Mr. Willis’ [counsel for the defendant Hood] motion as
far as additional voir dire on publicity . . . The government would
urge Your Honor to do some more voir dire on publicity.’’ Appendix,
pp. A-75-76.
FI aan sense instructed veniremen not to reveal opinions
and reprimanded those who inadvertently did so. App., pp. A-37, 65.
—_
The entire voir dire process took one and one half days. Im-
mediately after the jury was impaneled, the defendant Hood
moved for a mistrial on the basis of the inadequacy of the voir
dire. The motion asserted that the questioning was insufficient
to determine whether the impaneled jurors had information or
held opinions that disqualified them to sit as jurors, and that it
impaired the defendants’ right of peremptory challenge, in that
it deprived them of information necessary for the intelligent ex-
ercise of that right. The trial court denied the motion.
On June 9, 1981, the jury returned verdicts finding Blanton
guilty on all counts of the indictment, Allen guilty on all counts
other than those which had previously been dismissed by the
Court (six mail fraud counts and one conspiracy count), and
Hood guilty on six mail fraud counts and the conspiracy count,
and not guilty on three counts of mail fraud and the Hobbs Act
Count. Blanton was subsequently sentenced to three years im-
prisonment and fined $11,000; Allen was sentenced to *wo years
imprisonment and fined $14,000; Hood was sentenced to eigh-
teen months imprisonment and fined $14,000.
2. The Court of Appeals Panel Decision.
The defendants appealed their convictions, asserting that the
conduct of the voir dire was an abuse of the trial court's discre-
tion, and that it had deprived them of their right to a pro-
cedurally fair trial. On February 11, 1983, a three-judge panel
of the Sixth Circuit Court of Appeals held that the trial judge
had committed error in his conduct of the voir dire, and revers-
ed the defendants’ convictions, remanding the case for retrial.
700 F. 2d 298 (6th Cir. 1983). The panel held that the trial court
did not make a sufficient inquiry of prospective jurors to deter-
mine whether they should be excused for cause because of pre-
judicial information or opinions, and did not permit defense
counsel to obtain sufficient information to intelligently exercise
their right of peremptory challenge. The pane! concluded that
the method of questioning, which permitted prospective jurors
to subjectively assess their own qualifications to serve without
mis, Sas
Stating the factual basis for that assessment, was in conflict with
the holdings of every Circuit Court which had reviewed factual-
ly similar questioning:
It appears that the Second, Fifth, Ninth and Eleventh Cir-
cuits would reverse in a case like the one at bar. Dicta from
the First and District of Columbia Circuits indicate they
would reverse. The Third, Seventh and Tenth Circuits have
expressed suspicion of jurors’ assurances of impartiality,
but the facts in the cases from those circuits differ too
much from the instant case to determine how those courts
would ultimately rule. No court has approved of question-
ing as limited as the questioning in this case, where there
was substantial pre-trial publicity. 700 F. 2d at 307.
3. The Court of Appeals en banc Decision.
The United States Attorney subsequently filed a petition fora
rehearing, with a suggestion for rehearing en banc. The petition
was granted, and a rehearing en banc was held on June 19, 1983.
In an opinion filed on September 28, 1983, a majority of the
Court held that the voir dire questioning was sufficient, and af-
firmed the convictions of all three defendants. The opinion by
Chief Judge George Edwards was joined in by six members of
the Court. The other four members dissented, in opinions filed
by Judges Albert Engel and Damon Keith. Judge Floyd Gibson,
the author of the panel opinion, participated in the panel deci-
sion by designation as a senior judge of the Eighth Circuit Court
of Appeals, and therefore did not participate in the en banc
decision.
The majority opinion states that the trial court *‘probably’’
did not employ the best available method of voir dire question-
ing, and that the author of the opinion, Judge Edwards, hadin- -
itially believed that the questioning was legally inadequate. It
cites several reasons for Judge Edwards’ change of opinion, but
the primary reason appears to have been the same tactor which
the defendants contended made the voir dire questioning inade-
ay ee
quate: The extraordinarily massive and adverse nature of the
pre-trial publicity. The opinion states that the nature and extent
of the publicity justified /imiting the voir dire questioning, on
the ground that more extensive questioning of veniremen having
adverse information or opinions might have contaminated other
veniremen. It states that the trial judge ‘‘obviously’’ did not feel
that this problem could be solved by individual questioning of
prospective jurors, apparently because such individual question-
ing might have been covered in the press, and read by other pro-
spective jurors. App., pp. A-12, A-13.
The majority opinion concludes that limited voir dire ques-
tioning such as occurred in this case is justifiable only ‘‘under
similarly extreme circumstances, which include 1) charges
generating great public concern, 2) statewide media saturation
both before and during trial, and 3) then, only if the voir dire is
conducted by a trial judge as experienced in, and as sensitive to,
the competing legitimate interests of the individual defendants
and the State, as proved to be true in this case.’’ App., p. A-13.
In short, the principle adopted by the Court appears to be: the
greater the publicity, the more limited and uninformative the
voir dire questioning may be.
Judge Engel’s dissenting opinion summarizes the position of
the dissenting judges as follows:
The en banc opinion today establishes a new rule of law
governing jury selection in federal trials involving
widespread pre-trial publicity.
That new rule is that where inflammatory pre-trial publici-
ty is pervasive, inquiry into an individual juror’s
knowledge and predisposition is superfluous. The only
necessary inquiry, according to the majority, is whether
the juror believes in his own mind that he can lay aside
such knowledge and preconceived notions, and decide the
case only upon the evidence presented. The en banc opi-
as
nion further imposes upon the defense the burden of prov-
ing prejudice, although the trial court effectively precluded
any meaningful inquiry needed to establish it. These pro-
positions overrule established precedent. App., p. A-35.
The dissenting opinion challenges the basic premise of the
majority opinion, to the effect that detailed questioning was
properly avoided because it might have produced answers so
negative that other veniremen might have been ‘‘contaminated”’
by hearing them, or reading about them in the press. The dissent
responds by asking:
If the dreaded answer would contaminate the entire venire,
why would it not also contaminate the juror who entertain-
ed such notions .. .? App., p. A-43.
The dissent asserts that the possible existence of such negative
Opinions does not justify ‘‘evading the issue’’ by permitting
jurors who may hold them to pass through the voir dire pro-
cedure unquestioned, but, on the contrary, requires that such
opinions be exposed and eliminated from the jury panel by in-
tensive voir dire questioning. App., pp. A-S0-51.
The dissenting opinion also concludes that the trial court’s
refusal to permit more extensive questioning concerning
veniremen’s knowledge and opinions ‘‘completely frustrated
the right to exercise peremptory challenges, by preventing the
defense from acquiring the information it needed to effectively
utilize its peremptories.’’ App. p. A-45.
The separate dissenting opinion of Judge Damon Keith
adopts the reasoning of the Engel dissent, and concludes as
follows:
I am, frankly, at a loss to explain why the en banc court
has approved this voir dire. There are no cases on point
which approve questioning so limited as what was permit-
ted in this case. The majority opinion establishes an unwise
and dangerous precedent which tampers with basic rights.
App. p. A-64.
REASONS FOR GRANTING THE PETITION
1. Conflict with Supreme Court Holdings—Disqualification
for Cause.
The Sixth Circuit Court of Appeals has held in this case that,
in a trial involving massive pre-trial publicity, voir dire inquiry
into the existence of disqualifying biases may be limited to ask-
ing prospective jurors to subjectively determine whether they
hold such biases; and that defense counsels’ requests that in-
quiry be made into the factual basis of possible bias—such as
exposure to publicity, knowledge of the case, and the existence
of opinions which the juror does not consider disqualify-
ing—may properly be refused. The result of this unprecedented
holding is that the prospective jurors become the arbiters of
their own qualifications to serve.
This holding is in direct conflict with repeated holdings of this
Court, that a juror’s assessment of his own qualifications to
serve cannot be determinative. The test of a juror’s ability to
serve is—as the trial judge stated—whether he can lay aside any
prejudice or predisposition, and try the case on the evidence.
This Court has repeatedly held, however, that this test is to be
applied by the court, not the juror, and that the juror’s
assurances in that regard are not conclusive:
It is sufficient if the juror can lay aside his impression or
opinion and render a verdict based on the evidence
presented in court...
At the same time, the juror’s assurance that he is equal to
this task cannot be dispositive of the accused’s rights, and
it remains open to the defendant to demonstrate ‘‘the ac-
tual existence of such an opinion in the mind of the juror
as will raise the presumption of partiality.’’ Murphy v.
Florida, 421 U.S. 794, 800, 44 L. Ed. 2d 589, 595 (1975).
(See, also Irvin v. Dowd, 366 U.S. 717, 6 L. Ed. 2d 1250
(1969); Marshall v. United States, 360 U.S. 310, 3 L. Ed.
2d 1250 (1969); and Reynolds v. United States, 98 U.S.
145, 155, 25 L. Ed. 244, 246 (1878).)
This Court has held, on at least two occasions, that juries
were in fact disqualified by bias, despite their assurances to the
contrary, and have reversed convictions because the trial courts
improperly accepted the jurors’ assurances that they could try
the case fairly. /rvin v. Dowd, supra.; Marshall v. United
States, supra. In the /rvin case, veniremen were not only asked
whether they could set aside their knowledge and opinions, and
try the case fairly, but were asked direct questions concerning
their knowledge and opinions—the kinds of questions which
were not permitted in the present case. It was this latter ques-
tioning which the Supreme Court reviewed on appeal, and
which led the Court to reject the jurors’ contentions that they
could try the case fairly:
No doubt each juror was sincere when he said that he
would be fair and impartial to petitioner, but the
psychological impact requiring such a declaration before
one’s fellows is often its father. Where so many, so many
times, admitted prejudice, such statements of impartiality
can be given little weight. As one of the jurors put it,
**Your can’t forget what you hear and see.’’ 366 U.S. 717,
728 6 L. Ed. 2d, 751, 759.
The questioning approved in the instant case, which pro-
hibited veniremen from disclosing their knowledge of the case,
and their opinions to the extent they considered them not to be
disqualifying, deprived the trial and appellate courts of the in-
formation necessary to make an /rvin type analysis of the
veniremens’ assurances thai they could give the defendants a
fair trial. Had the trial court in /rvin employed the type of voir
dire used in the instant case, the Supreme Court would not have
had the information necessary to determine that the jury was in
fact disqualified, despite their assurances to the contrary. By the
same token, because we have in the present case only the jurors’
ee
assurances (by silence) that they could be impartial, it is possible
that the Blanton jury was in fact as prejudiced as was the /rvin
jury. The rule of law adopted by the Sixth Circuit in this case is
in irreconcilable conflict with the doctrine of /rvin, and the
other Supreme Court cases cited above.
2. Conflict with the Holdings of other Circuits—Disqualifica-
tion for Cause.
The Sixth Circuit’s holding in the present case is in conflict
with the holding of every other Circuit Court case in point.
Every other Circuit that has considerd the issue has stated that a
venireman’s assurance that he will give the defendant a fair trial
is not dispositive of his qualification to serve. Patriarca v.
United States, 402 F.2d 314, 318 (1st Cir. 1968); United States v.
Denno, 313 F.2d 364, 372 (2nd Cir. en banc 1963); United States
v. Provenzano, 620 F.2d 985, 995 (3rd Cir. 1980); United States
v. Davis, 583 F.2d 190, 197 (Sth Cir. 1978); United States v.
Dellinger, 472 F.2d 340, 375 (7th Cir. 1972); Silverthorne v.
United States, 400 F.2d 627, 639 (9h Cir. 1968); Brinlee v.
Crisp, 608 F.2d 839, 845, 846 (10th Cir. 1976); and United
States v. Caldwell, 543 F.2d 1333, 1345 (D.C. Cir. 1974). No
circuit has approved voir dire questioning in a publicized case
which was limited to asking jurors to determine their own
qualifications to serve. Every other Circuit which has decided a
case similar on its facts would hold the voir dire questioning in
the present case inadequate, and reversible error. Eg., United
States v. Davis, 583 F.2d 190 (Sth Cir. 1978); United States v.
Dellinger, 472 F.2d 340 (7th Cir. 1972); and Silverthorne v.
United States, 400 F.2d 627 (9th Cir. 1968). See also, Patriarca
v. United States, 402 F.2d 314 (1st Cir. 1968); and United States
ex. rel. Bloeth vy. Denno, 313 F.2d 364 (2nd Cir. en banc, 1963).
United States v. Hawkins, 658 F. 2d 279 (Sth Cir. 1981) is in
direct conflict with the holding in the present case. In Hawkins,
the trial court began the voir dire by asking the veniremen en
masse if they had heard, read or talked to anybody about the
—: a
case, whether they had formed opinions about the case, and, if
so, whether such opinions would affect them as jurors. The
veniremen collectively made no response. Counsel was then per-
mitted to question them, and learned that 48 out of 56 of them
had in some way heard about the case. Counsel moved that
these 48 be questioned individually so that a more intensive in-
quiry could be made concerning their exposure to publicity, and
its effect upon their ability to try the case. The court denied the
motion, stating that the only issue was whether the publicity had
adversely affected the prospective jurors, and that this issue had
been resolved by their failure to respond to the court’s questions
as to whether it had.
On appeal, the Fifth Circuit held that the voir dire inquiry
was so inadequate as to constitute reversible error, because it
was not calculated to give ‘‘reasonable assurance that prejudice
would be discovered if present.’” Having determined that some
jurors had been exposed to pre-trial publicity, the Court held
that the trial judge ‘‘should have determined for itself whether
any juror’s impartiality had been destroyed.’ (emphasis
added). The Court held that the veniremens’ acknowledgment
by silence that they could fairly try the case was no substitute for
an independent judicial determination >of their capacity to do
so:
The juror is poorly placed to make a determination as to
his own impartiality. Instead, the trial court should make
this determination. 658 F.2d at 285.
In comparing Hawkins to the present case, several points may
be noted: 1) Considerably more voir dire inquiry was permitted
at the trial level in Hawkins than in the present case. Jurors who
had heard about the case and had formed some opinion were at
least identified, and the inquiry was halted only when counsel
wished to question the veniremen individually about the
substance of their knowledge and opinions. No such
preliminary identification was permitted in the present case; 2)
ae yee
The pre-trial publicity in Hawkins was much less intensive and
massive than in the present case. 3) Hawkins illustrates the inef-
fectiveness of en masse questioning and assent by silence, such
as occurred in the present case. Questioned en masse, none of
the Hawkins veniremen responded. Questioned individually, 48
out of 56 stated that they had heard about the case.
The Ninth Circuit held questioning comparable to the
Hawkins questioning inadequate, and an abuse of discretion, in
Silverthorne v. United States, 400 F.2d 627 (9th Cir. 1968), and
‘the Seventh Circuit held questioning comparable to the ques-
tioning in the instant case inadequate, and an abuse of discre-
tion, in United States v. Dellinger, 472 F.2d 340 (7th Cir. 1972).
In Patriarca v. United States, 402 F.2d 314 (lst Cir. 1968), the
First Circuit affirmed the defendant’s conviction, because
defense counsel had expressly waived further voir dire, but the
Court established a mandatory voir dire procedure for future
cases that is in direct conflict with the holding in the instant
case:
In cases where there is, in the opinion of the court, a
significant possibility that jurors have been exposed to
potentially prejudical material, and on request of counsel,
we think that the court should proceed to examine each
prospective juror apart from other jurors and prospective
jurors, with a view to illiciting the kind and degree of his
exposure to the case or parties, the effect of such exposure
on his present state of mind, and the extent to which such
state of mind is immutable or subject to change from
evidence. 402 F.2d at 318.
On the issue of disqualification for cause, therefore, the Sixth
Circuit decision conflicts with the rule of law adopted by eight
other Circuits, and is in direct conflict with holdings of at least
the Fifth, Seventh and Ninth Circuits.
a:
3. Conflict With The Holdings Of Other Circuits—Impair-
ment Of The Right Of Peremptory Challenge.
This Court has held that the right of peremptory challenge is
‘tone of the most important rights secured to an individual”’
and that ‘“‘the denial or impairment of this right is reversible er-
ror, without a showing of prejudice.’’ Swain v. Alabama, 80
U.S. 202, 219, 13 L. Ed. 2d 759, 772 (1965). Several Circuit
Court decisions—including some from the Sixth Circuit—have
held that the right of peremptory challenge is impaired when
counsel is deprived of information essential to its intelligent ex-
ercise. Eg. United States v. Blount, 479 F.2d 650 (6th Cir. 1973);
United States vy. Johnson, 584 F.2d 148 (6th Cir. 1978); United
States v. Dellinger, 472 F.2d 340 (7th Cir. 1972). The Seventh
Circuit has held that it is an impairment of the right of peremp-
tory challenge, and reversible error, to deny defendants infor-
mation concerning veniremens’ exposure to pre-trial publicity
and knowledge of the case, even though the information would
not justify disqualifying them for cause. United States v. Dell-
inger, 472 F.2d 340 (7th Cir. 1972). Indeed, prior to the decision
in the instant case, the law in the Sixth Circuit was that defense
counsel were entitled to inquire into the ‘‘source and intensity”’
of prospective jurors’ exposure to pre-trial publicity, as an
essential part of the right of peremptory challenge. United
States v. Johnson, $84 F.2d 148 (6th Cir. 1978). The present
case apparently stands alone in holding that the denial of all
such information to a defendant in a highly publicized case is
not an impairment of the right of peremptory challenge.
4. Impact Of The Decision Upon The Administration Of
Justice.
Because it involves a procedure which occurs in every jury
case, the practical impact of this decision will be very great. This
is particularly true because the facts of the case are so extreme.
The potential for jury prejudice could hardly have been greater,
and the voir dire questioning which was approved could hardly
——
have been more limited. The decision would appear to justly
almost any limitation of voir dire questioning concerning
jurors’ knowledge and attitudes other than asking them to sub-
jectively assess their own qualifications to serve. Nor is the im-
pact of the decision limited to cases involving adverse pre-trial
publicity. The principle adopted appears to be equally ap-
plicable to voir dire questioning concerning racial prejudices,
prejudices arising from past relationships, and prejudices aris-
ing from general social and political attitudes.
The decision will have a severely negative impact upon the
existing law, in the following respects;
A. It will unnecessarily impair the right to a fair jury in highly
publicized cases, by permitting trial judges to discard, without
justification, the only effective means of insuring a fair
jury—intensive voir dice examination.
This Court has repeatedly held that use of criminal trial pro-
cedures such as voir dire, change of venue and jury sequestra-
tion are the appropriate means of reconciling the otherwise ir-
reconcilable demands of free press and fair trial. Eg. Shepard v.
Maxwell, 384 U.S. 333, 16 L. Ed. 2d 600 (1966); Nebraska Press
Association v. Stuart, 427 U.S. 539, 49 L. Ed. 2d 683 (especially
the concurring opinion of Justice Brennan). Recent history
demonstrates that these holdings are sound—that defendants
who have been subjected to intensive adverse publicity can ob-
tain apparently fair juries, if trial courts take the time and effort
to conduct adequate voir dire questioning. See, United States v.
Haldeman, 559 F.2d 31 (D.C. Cir. 1976); Calley v. Callaway,
519 F.2d 184 (Sth Cir. 1975); United States v. Ehrlichman, 546
F.2d 910 (D.C. Cir. 1976); People v. Manson, 61 Cal. App. 3d
102 (1976).
The instant decision rejects this constitutional philosophy. It
holds that intensive voir dire may be abandoned as counter-
productive if the publicity surrounding a case is great enough. It
holds that the trial judge in this case need not have done all that
wn. OT ox
he could have done to eliminate prejudice ‘rom the jury,
because he was entitled to conclude that the cure created a
greater risk than the disease. The necessary conclusion is that in-
fection of the trial process may be considered inevitable, and
therefore necessarily tolerable, in cases of great publicity. This
conclusion represents a significant defeat for the right to a fair
jury within the Sixth Circuit, which is as unjustified by ex-
perience as it is unfortunate in result.
B. The holding is illogical and confusing, because it
authorizes the greatest restrictions upon voir dire in those cases
in which pre-trial publicity has been the most prejudicial.
The instant decision holds that inquiry into prospective
jurors’ states of mind may be eliminated precisely in those cases
in which pre-trial publicity has been the greatest (and therefore
the probability of prejudice is the highest). This formulation is
illogical on its face, and will necessarily create great confusion
at the trial level. Even assuming the soundness of the Court’s as-
tounding premise—that it is better to seat a juror who holds pre-
judicial thoughts than to risk infecting other jurors by permit-
ting him to voice those thoughts—the holding will be extremely
difficult to apply in a logical fashion.
At what point, for example, is publicity great enough to re-
quire detailed voir dire, but not great enough to justify
eliminating it? More fundamentally, if detailed inquiry may be
eliminated in a case in which the probability of prejudice is as
high as in the Blanton case, may it not—by a similar balancing
of competing interests—be eliminated in all cases? What was
previously a logical principle (the greater the probability of pre-
judice, the greater the need for effective voir dire) has been con-
verted into an illogical and confusing one, which no one can in-
terpret with confidence, and which many will construe as licens-
ing trial judges to conduct voir dire however they choose.
—
C. The decision unfairly imposes the burden of proving pre-
judice upon the defendant, while denying him the means of sus-
taining that burden.
The facts of this case clearly illustrate the unfairness of this
aspect of the Court's decision. The voir dire produced no infor-
mation that would assist defense counsel in challenging prospec-
tive jurors for cause. Jurors either excused themselves on the
basis that they could not fairly try the case, or, pursuant to the
court's instruction, they made no statements concerning their
knowledge or opinions. After the trial was over, there was a
post-trial hearing in which one juror was questioned concerning
alleged anti-Blanton sentiments he had expressed. He was ques-
tioned in the manner in which counsel had asked that all
veniremen be questioned during voir dire. His responses in-
dicated some bias against the defendants, considerable
evasiveness, and were such as to possibly justify challenge for
cause, and certainly the exercise of a peremptory challenge.
The en banc opinion states that this testimony was the only
evidence relevant to jury bias, that it was ‘‘quite inconclusive’,
and that the Court had ‘‘searched this record for any other such
evidence pertaining to periods before, during or post-trial and
[had] found none.’’ App. p. A-33. The Court neglects to state
that the above testimony represented the only instance in which
questioning into jurors’ states of mind was permitted. The
Court need not have searched the record for further evidence of
bias; it need only have referred to the trial court's admonition to
veniremen not to reveal their knowledge or opinions, but simply
to decide-for themselves whether they were qualified to fairly try
the case.
The Court has made it clear that defendants in the Sixth Cir-
cuit will henceforth have the burden of proving juror prejudice,
and will be required to do so by eliciting admissions from pro-
spective jurors, even though they are barred from eliciting such
admissions by the rule permitting jurors to silently determine
ee
their own qualifications. To say the least, such a procedure af-
fords unprecedentedly inadequate protection for the Sixth
Amendment right to a fair and impartial jury.
CONCLUSION
For the above reasons, a Writ of Certiorari should issue to
review the judgment and opinion of the Sixth Circuit Court of
Appeals.
Respectfully submitted,
WILLIS & KNIGHT
BY William R. Willis, Jr.
BY Alfred H. Knight
215 Second Avenue, North
Nashville, Tennessee 37201
(615) 259-9600
Attorneys for Petitioner
Clyde Edward Hood
DODSON, HARRIS, ROBINSON
& ADEN
BY Tyree B. Harris, Ill
BY Tyree B. Harris, IV
Suite 900, 315 Union Street
Nashville City Bank Building
Nashville, Tennessee 37201
(615) 244-6840
Attorneys for Petitioner
James M. Allen
APPENDIX
No. 81-5643
No. 81-5644
No. 81-5645
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UnNrTEeD STATES OF AMERICA,
Plaintiff-Appellee, |
APPEAL from the
| United States District
LEONARD Ray BLAnTon, (81-5644) Court for the Middle
CriypeE Epwarp Hoon, Jr., (81-5645) District of Tennessee.
James M. ALLEN, (81-5643)
Defendants-Appellants.
Vv.
Decided and Filed September 28, 1983
EN BANC
Before: Epwarps, Chief Circuit Judge, Livery, Encen,
KerrH, KENNEDY, MARTIN, JoNEs, ConTiE, KRUPANSKY and
WELLForD, Circuit Judges. °
Epwarps, Chief Circuit Judge, delivered the opinion of the
court in which LiveLy, Contre, KrupaNnsky and WELLForD,
Circuit Judges joined. Kennepy, Circuit Judge, concurred in
the majority opinion and filed a special concurring opinion
(p. 34). Encex, Circuit Judge, filed a dissenting opinion in
which Martin and Jones, Circuit Judges concurred (pp.
* Honorable Gilbert S. Merritt disqualified himself from the en banc
hearing of this case.
ey. ee
2 United States v. Blanton, et al. Nos. 81-5643-45
35-60). Kerru, Circuit Judge, concurred with Judge Engel’s
dissent and filed a separate dissenting opinion (pp. 61-64).
Epwakrps, Chief Circuit Judge. In this case this circuit is re-
quired to review en banc the claims of the former Governor of
Tennessee and two associates that they have been deprived of
a fair jury trial. Their principal claim is that inadequate pro-
tective measures were employed by the trial judge in the
jury selection process to guard them against the prejudicial
effect of massive adverse pretrial media publicity.
We believe that we can and should accept much of the able
work accomplished by the panel’ which first heard this case.
We shall therefore deal afresh and in detail only with the
principal claim stated above upon which the original panel
agreed with appellants and ordered a new trial.
This claim we now subdivide into three questions and pro-
vide our answers:
1) Did the District Judge employ the best procedure possible
in his voir dire examination of the prospective jurors in
this case?
Probably not.
2) Did the trial judge abuse the broad discretion vested in
him by the rulings of the Supreme Court of the United
States in his impaneling of this jury?
No.
3) Did the voir dire examination of jurors suffice to produce
an impartial jury and fundamentally fair trial?
Yes.
We accept the original panel's statement of facts:
The three defendants are Blanton, who served as gov-
' The original panel consisted of Circuit Judges Albert J. el
and Damon J. Keith of this Court, and Chief ‘Tae Emeritus Fla
Gibson (now Senior Judge of the Eighth Circuit) who wrote
panel opinion.
Ns alae
Nos. 81-5643-45 United States v. Blanton, et al. 3
ernor of Tennessee from January, 1975 to January, 1979,
James M. Allen, who was a special consultant to the
governor for the first six months of the Blanton adminis-
tration and had served as Blanton’s campaign manager,
and Clyde Edward Hood, who was a special assistant to
the governor from January, 1975 to November, 1977.
Defendants were charged on October 29, 1980, in a
twelve-count indictment with eight counts of mail fraud,
(18 U.S.C. §§ 2, 1341 (1976)), one count of violating
the Hobbs Act (18 U.S.C. §§ 2, 1951 (1976)), and one
count of conspiracy (18 U.S.C. § 371 (1976) ). Blanton
alone was charged with two counts of tax evasion and
filing a false tax return. (26 U.S.C. §§ 7201, 7206(1)
(1976) ). On March 12, 1981, a superseding indictment
was issued adding one mail fraud count. The tax counts
against Blanton were severed. The essence of the charges
was that defendants used their positions to see that
friends of Blanton would receive retail liquor licenses
from the Tennessee Alcoholic Beverage Commission
(ABC) and that one person paid Blanton for receipt of
his license.
The most important evidence against defendants was
the videotaped deposition of Jack Ham. Ham was an
immunized witness who was the recipient of a liquor
license during Blanton’s tenure and who allegedly agreed
to give Blanton a cut of the profits in violation of state
law. Ham had contributed $1,000 to the Blanton cam-
paign.
Blanton’s role in the scheme allege lly was that he di-
rected that liquor licenses be awarded to political friends
or persons like Ham who offered a cut of the profits. He
allegedly accomplished this by appointing two of the
three commissioners of the ABC, including the chairman,
S. J. King, and the commission was therefore able to
appoint Blanton allies as director and assistant director of
the ABC. Blanton allegedly agreed to an illegal twenty
percent cut of the profits of Ham’s liquor store, with the
payment coming in the form of Ham’s purchase of
4
— =
United States v. Blanton, et al. Nos. 81-5643-45
allegedly worthless oil stock from Blanton for $23,000."
(This method of payment resulted in tax savings to
Ham.) Blanton also allegedly approved a transfer of
Ham’s liquor license to a more lucrative location.
Allen was alleged to have been in charge of determin-
ing the awarding of liquor licenses even though he had
no position at the ABC. He allegedly helped set up an
illegal ownership of a liquor store involving the ABC
chairman and he attempted to acquire a concealed in-
terest in a liquor store under the guise of a lucrative con-
sulting contract (only one payment was made under the
contract). He allegedly was responsible for hiring a new
ABC assistant director to help control the ABC even
though Allen was not even a state employee at the time,
and he instructed the assistant director to recommend
the transfer of Ham's license to a better location and
recommended against the transfer of other persons’ li-
censes to that area.
Hood allegedly planned to acquire an interest in two
liquor stores in contravention of various state laws and
he received a share of the profits of some of the newly
licensed liquor stores. He allegedly told the director of
the ABC who Blanton’s friends were so that the director
would recommend to the ABC that those persons receive
licenses. He allegedly helped accomplish the transfer of
Ham's license by talking to ABC chairman King and
by suggesting a particular person as the assistant director
who would persuade the other Blanton appointee on the
commission. Finally, he allegedly suggested that Ham
pay Blanton's share of the profits by buying the worthless
oil stock (although he later advised against the pur-
chase ).
The scheme violated Tennessee's laws against an ABC
‘A total of $38,000 was allegedly paid for the oil stock. In
addition to the $23,000 for Blanton’s cut of the liquor store
profits, Ham and his nephew, Bert Ham, paid another $15,000 as
a finder’s fee for Blanton's help in getting a loan on a housing
project they were building.
ee
Nos. 81-5643-45 United States v. Blanton, et al. 5
commissioner having an interest in a liquor store,? public
officials having an interest in a liquor store,? undisclosed
interest in liquor stores,* and bribing of public officials.’
The federal charge was that the acts (1) constituted a
conspiracy to defraud the United States by use of the
mails in furtherance of defendants’ scheme to violate
Tennessee law (18 U.S.C. § 371), (2) when coupled
with mailings, constituted mail fraud by defrauding the
citizens of Tennessee of the honest services of their gov-
ernment officials (18 U.S.C §§ 2. 1341), and (3) violated
2 Tenn. Code Ann. § 57-1-108(a) (1980) provides: “[NJo per-
son shall be ee in any capacity by the commission, if
such person shall have any interest...in any... retail dealer
licensed as such in the state of Tennessee.”
3Tenn. Code Ann. § 57-3-210(b)(1) (1980) provides:
No wholesaler’s or retailer’s license shall be issued to a
person who is a holder of a public office... . It shall be
unlawful for any such person to have any interest in
such wholesale or retail business, directly or indirectly,
either proprietary or by means of any loan, mortgage, or
lien, or to participate in the profits of any such business[.]
4Tenn. Code Ann. § 57-3-210(f) (1980) provides: “It shall
be unlawful for any person to have ownership in, or participate,
either directly or indirectly, in the profits of any wholesale or
retail business licensed under this chapter, unless his interest
in said business and the nature, extent and character thereof
shall appear on the application... .”
5 Tenn. Code Ann. § 39-081 (1975) provides:
Any person who corruptly offers, promises, or gives to
any executive... officer... any gifts, gratuity, or thing
of value, with intent to influence his act, vote, opinion,
decision, or judgment, on any matter, cause, or proceed-
ing which may then pending, or which may be by law
brought before him in his official capacity, shall, on con-
viction, be imprisoned in the penitentiary ....
Tenn. Code Ann. § 39-802 (1975) provides:
Any executive . . . officer who corruptly , or
agrees to accept, any gift or gratuity, or ng of value
.. . under an agreement or with an understanding that
his vote, opinion, or judgment is to be given in any
particular manner, or upon any particular side of any
question or proceeding which is, or may by law be
brought, before him in his official capacity, or that, in
such capacity, he is to make any particular appointment,
shall, on conviction, be punished by imprisonment in the
6
ay tee
United States v. Blanton, et al. Nos. 81-5643-45
the Hobbs Act (interference with commerce by threats
or violence) (18 U.S.C. §§ 2, 1951).
The testimony of the chief prosecution witness, Jack
Ham, was videotaped pursuant to Fed. R. Crim. P. 15(a)
because of Ham’s poor health. The videotape was edited
and played for the jury at the trial. The government ob-
tained Ham’s testimony offering him immunity from fed-
eral prosecution and civil tax liability, and the state
agreed not to prosecute Ham. The ABC agreed that it
would not revoke Ham’s lucrative liquor license on the
basis of truthful statements he made in judicial proceed-
ings. \
The trial was preceded by massive publicity about the
case in Nashville, Tennessee, and throughout the state,
as one would expect in the trial of a former governor.
The record contains over 240 articles from Nashville
newspapers adverse to defendants. There are approxi-
mately 160 articles which appeared in the six months
preceding the trial about the instant prosecution, the pro-
secution of Blanton’s brother, and the prosecution of
former Blanton aides.¢ There are more than seventy-five
6 Most of the very negative publicity came shortly after the
indictment: “Blanton Faces 12 Counts.” Oct. 30, 1980; “Enlist
Blanton’s Aid in Obtaining Licenses for Future Profits,” Oct.
30, 1980; “Allen’s Influence Had Wide Impact,” Oct. 30, 1980;
“Hood’s Success, Woes Laid To Misdirected Talent,” Oct. 30,
1980; “Blanton-Era Investigations Span 5 years,” Oct. 30, 1980;
“Blanton Faces Two Federal Court Trials,” Nov. 21, 1980. Not
all of the articles were negative: “Blanton’s Defense Said
Good,” Nov. 6, 1980; “Friends Eye Legal Fund for Blanton,”
Nov. 1, 1980. Two months before trial there were articles on
the criminal activities of Blanton aides: “Former ABC Head
Enters Guilty Plea,” Feb. 23, 1981; “Ex-Blanton Aide Enters
Guilty Plea,” Feb. 25, 1981; “ABC Probing Blanton Associate’s
License After Kickback Admission,” Feb. 26, 1981. The month
before the trial —— the superseding indictment was issued,
prompting more publicity: “Blanton, 2 Aides Indicted Again,”
Mar. 12, 1981. As late as four days before trial articles linked
Blanton to improper pardons of state inmates: “Tapes Link
Blanton to 30 Commutations,” Apr. 16, 1981; “Taylor on Tape
Links Ray Blanton To Clemency Deals,” Apr. 15, 1981. Blan-
ton’s brother Gene was also in the news shortly before trial
because of alleged improprieties: “Gene Blanton To Be Accused
of Not Telling $72,000 Income.” Mar. 24, 1981; “Gene Blanton
Pay, pen
Nos. 81-5643-45 United States v. Blanton, et al. 7
other articles which appeared while Blanton was gov-
ernor concerning his administration.’ There are another
twenty-two articles on the deposition of Jack Ham, the
last of which appeared four months before the beginning
of the trial. A large part of the original indictment was
published verbatim in the Nashville newspapers. There
was also an offer of proof concerning the testimony of
news directors of three Nashville television stations about
the pretrial publicity. There can be no doubt that there
was an extraordinary amount of pretrial publicity con-
cerning this case and other cases involving officials of
the Blanton administration and some of Blanton’s rela-
tives.
Jury selection began on April 20, 1981. Testimony in
the case began on April 22, 1981, and was concluded on
May 29, 1981. Closing arguments and jury instructions
were completed on June 2, 1981. The court dismissed
three mail fraud counts and the Hobbs Act count as to
Allen. The jury deliberated until June 9, 1981, and found
Blanton guilty on all eleven counts. It found Allen guilty
on all the counts the court had not dismissed (six mail
fraud counts and one conspiracy count). It found Hood
guilty on six mail fraud counts and the conspiracy count,
but it found him not guilty on the other three mail fraud
counts and the Hobbs Act count. Blanton was sentenced
to three years and fined $11,000. Allen was sentenced to
two years and fined $14,000. Hood was sentenced to
eighteen months and fined $14,000.
Bought Autos With Business Funds, Says Frensley,” Apr. 16,
1981. Most of the other articles dealt with procedural aspects
of pretrial proceedings.
7 Most of these articles dealt with patronage in the Blanton
administration and the pardon of prisoners, including the pardon
- commuting of sentences of 52 prisoners, 23 of them mur-
erers.
& Some of the articles were entitled: “Ham Details Meetings
With Blanton.” Dec. 6, 1980; “Ham States Hood was ‘Silent
side ee " Dec. 16, 1980; “Ham Admits Riches, Refutes
Testimony On Pay to Blanton,” Dec. 18, 1980.
ay
8 United States v. Blanton, et al. Nos. 81-5643-45
QUESTION Il.
Did the trial judge employ the best procedure possible
in his voir dire examination of the prospective jurors in
this case?
Probably not.
The only way this question can fairly be answered is to
read the entire content of the juror voir dire, which fills 289
pages of this trial record. We believe that every judge on the
en banc court has performed this task — although obviously
differences of interpretation remain. We cannot reprint the
entire voir dire, but we can reprint the panel's statement of
facts concerning it:
The trial court conducted the voir dire en masse. It
seated a group of veniremen it: the jury box and directed
questions at that group, but instructed the rest of the
veniremen in the courtroom to listen to and pay atten-
tion to the questions as the questions would apply equally
to all those selected. During the course of the voir dire
the trial court pointed out that the case had been the
subject of considerable media attention. It commented
that it was sure that all the veniremen had heard about
the case, and that some of them may have formed a ten-
tative opinion concerning the probable guilt or innocence
of the defendants: The court then said to the veniremen:
[T]he test is, will you be able to put from your
minds whatever you may have seen and heard, and
any opinion which you may have tentatively reached,
and then to decide this case solely on the facts as
you determine them to be, on the sole basis of the
evidence which will be adduced in this trial after ap-
plication of the appropriate law?
One juror was excused because she indicated she could
not be impartial. As new veniremen entered the jury box
to replace the ones who were excused for whatever rea-
son, the trial court would ask them essentially the same
ae yo
Nos. 81-5643-45 United States v. Blanton, et al. g
question on pretrial publicity. It usually said it wanted
to “particularly emphasize” the point. Out of ninety-two
veniremen examined, a total of thirteen were excused
because they indicated they had an opinion or prejudice
they could not put aside. Of these thirteen, four linked
their prejudice to pretrial publicity. Seven of these thir-
teen were excused when they said they had an opinion,
without the court inquiring into the nature or strength
of the opinion or whether it could be put aside. Twenty-
nine other veniremen were excused for cause for other
reasons and the parties excused twenty-eight others with
their peremptory challenges.
If we total the disqualifications which resulted from mea-
sures taken by the trial judge to secure an impartial jury, we
find that 70 out of a total of 92 veniremen were excused.
Accepting as we do appellant’s contentions that they ‘had
been the subject of massive publicity — much of it negative —
we believe the initial trial judge in this case had a more
serious problem than my colleagues in dissent tend to recog-
nize, that he recognized the problem to a greater extent than
they credit to him, and that he took some very significant
measures to deal with it, to which they fail to give sufficient
weight.
Governor Blanton ran for and was elected to the highest
office in Tennessee state government. This fact guaranteed
that for the term of office to which he was elected, he would
be constantly in the limelight and every act and word would
be subject to comment. The other two defendants accepted
positions in state government in close proximity to its head.
Under the First Amendment, neither the defendants nor any
court in the United States could (or should) have prevented
the public media comment which ensued. One of the trial
judge’s major problems was how to choose a jury without
having all potential jurors repeatedly exposed or reexposed to
adverse media opinion before the trial ever started. As we
— A-10 —
10 United States v. Blanton, et al. Nos. 81-5643-45
read this record, he decided deliberately to avoid such re-
exposure and reemphasis.
He did repeatedly ask the following question, addressed
specifically to the nine jurors then seated in the jury box and
phrased to fit specific circumstances of the lengthy voir dire
examination:
[T]he test is, will you be able to put from your minds
whatever you may have seen and heard, and any opinion
which you may have tentatively reached, and then to
decide this case solely on the facts as you determine
them to be, on the sole basis of the evidence which will
be adduced in this trial after application of the appropri-
ate law?
In varying language he repeated this question 18 additional
times. The voir dire record, we believe, indicates that he was
sensitive to every suggestion of prejudice which came either
from jurors’ answers or defense counsel suggestion, and in most
instances responded with free use of his power to excuse a
juror for cause. He exercised that power 42 times.
The trial judge acted on the assumption that all potential
jurors in this case had been subjected to some portion of the
massive media coverage concerning the defendants in this
case. He apparently assumed that media coverage inevitably
would have had some prejudicial impact and that the best he
could do would be to persuade the individual members of the
venire to disclose any biases derived therefrom along with
any associations which might have a prejudicial effect. The
critical question in this case is whether this approach, when
considered together with the added precautionary measures
taken by the judge, was within his judicial discretion and was
so exercised as to produce an impartial jury.
The author of this opinion was initially persuaded by Judge
Gibson’s opinion for the panel that reversible error had been
committed by denial of either judicial or defense examination
— A-ll —
Nos. $1-5643-45 United States v. Blanton, et al. ll
of individual jurors concerning specific instances of possibly
prejudicial media influence. The factors which changed that
opinion and which account for affirmance by a majority of the
en banc court were: 1) careful reading of this record, 2)
appreciation of the difficulty of preventing prejudicial error
resulting from repetition during jury selection of media com-
ment about defendants or from possible prejudicial statements
from members of the venire as they were questioned about
such comment, 3) appreciation of the sensitivity of the trial
judge to any hint of bias and his free use of his power to
excuse members of the venire from jury service in the interest
of securing an unbiased jury, 4) the availability of the ques-
tionnaires to the defense as an important tool available to the
defense for investigation of the venire, 5) the substantial in-
crease in number of peremptory challenges which the trial
judge approved and finally, 6) the fact that the trial judge
found specifically (and with substantial record support) that
the result achieved in this jury selection process was a fair
and impartial jury.
A major aspect of appellants’ claim of prejudice in the voir
dire examination concerned pretrial publicity which pertained
to other prosecutions of aids or relatives of Governor Blanton.
In particular, some of these charges were to the effect that
the Governor's aids were selling pardons to convicted criminals
in the last days of the Blanton administration. At one point,
the U.S. Attorney joined in a request for additional voir dire
presumably related to this specific problem. While the trial
judge denied the motions at that time, shortly thereafter, he
addressed the prospective jurors as follows:
THE COURT: Ladies and gentlemen, I have talked a
lot about pretrial publicity that has occurred in connec-
tion with this case, the fact that you probably have read,
heard things about the case. I have not discussed with
you the possibility that you may have been familiar
with some of the publicity that surrounded Mr. Blanton
at the end of his term of office as governor. It seems
12 United States v. Blanton, et al. Nos. 81-5643-45
probable if you were in this State and area at this time
that you read and saw and heard something about the
circumstances.
Do any of you have recollection of any facts or cir-
cumstances which would cause you either to be inclined
to hold that against Mr. Blanton, or on the other hand,
to feel that he had been unfairly dealt with and should
have been vindicated? We are going back a fair period
of time.
But I ask you carefully to search your memories and
your consciences on that point. And I ask you as a
follow-up to that, does any of you remember anything
concerning the circumstance under which Mr. Blanton
left the governor's office which would in any way affect
your judgment in this case or render you incapable of
being completely fair and impartial concerning him and
his part in this case?
While in this statement the trial judge avoided repeating
the dramatic headlines which appeared above some of the
news stories concerning the pardon sale charges, it seems
obvious to us that the members of the venire both understood
and responded to his concern. We believe this response is doc-
umented in the voir dire examinations recorded in Appendix
pp. 1537-1728. All of these pages merit careful attention of
any reviewing authority.
Why, then, have we indicated that his handling of the voir
dire may not have been wholly adequate? The answer is that
we do not wish to imply disapproval in this Circuit of all
requests for individual questioning of jurors out of the pres-
ence of the entire venire, whether accomplished in chambers
or at the bench. In many trials a limited number of defense
questions, preferably submitted through the court with waiv-
er by the questioner of any prejudicial effect of the answer,
could be appropriate. We recognize that such a procedure in
itself would invite immediate problems and attendant risks
— A-13 —
’
Nos. 81-5643-45 United States v. Blanton, et al. 13
as a result of the presence of the media. But we would not
rule out the possibility that adequate warnings could be given
to jurors not to expose themselves to the news media during
the course of the trial and deliberations. This might be ac-
companied by warnings to the press of possible hazards of
mistrial due to some printing or broadcasting of voir dire pro-
ceedings at a time preceding the announcement of the jury
verdict. In many — indeed, most — cases, such measures could
be effective. The trial judge obviously did not think they
would be here.
As the dissenting opinion points out, the strategy employed
by the trial judge in this case is unique. We do not recom-
mend it for emulation unless under similarly extreme circum-
stances. These would include at least 1) charges generating
great public concern, 2) statewide media saturation both
before and during trial, and 3) then only if the voir dire is
conducted by a trial judge as experienced in and as sensitive
to the competing legitimate interests of the individual de-
fendants and the state as proved to be true in this case.
Every criminal trial is, of course, at least to some degree
unique. We do not seek to undertake the impossible task of
specifying exactly how this trial judge (or any future one)
should have employed his judicial discretion.
QUESTION 2
Did the trial judge abuse the broad discretion vested in
him by the rulings of the Supreme Court of the United
States in his impaneling of this jury?
We answer this question with a definite “No.”
The United States Supreme Court has not established any
per se rule which it requires trial judges to follow in the voir
dire of a jury venire. See Rosales-Lopez v. United States, 451
U.S. 182 (1981); Murphy v. Florida, 421 U.S. 794 (1975);
Beck y. Washington, 369 U.S. 541 (1962); Irvin v. Dowd, 366
— <)
14 United States v. Blanton, et al. Nos. 81-5643-45
U.S. 717 (1960). These opinions emphasize the necessity of
the exercise of trial judge discretion concerning the problems
actually confronting him. In only one of these cases, Irvin v.
Dowd, supra, did the United States Supreme Court reverse a
conviction due to an unfair trial resulting from massive media
pretrial publicity.
As noted above the trial judge in this case was faced with a
problem. There was certain to be extraordinary publicity cov-
erage of the jury selection process, with the potential of prej-
udicial error creeping into the trial itself either in the court-
room or in media coverage. The repeated reading to the en-
tire venire of the most dramatic newspaper headlines (those
accusing the Blanton administration of selling pardons for
example) could have had an arguably serious prejudicial
effect. Even if he had (as suggested above) waited until
the very end of the selection process and then put the ques-
tions concerning prior media contact to each juror individual-
ly, he could not be certain that some juror or jurors would not
read or hear about on television the very questioning from
which they had been screened and about which they had
been admonished. Abuse of judicial discretion simply does
not fit this trial judge’s handling of this difficult trial. See
dialogue below:
Selected examples of the trial judge's handling of the
voir dire
I have been designated to come down and participate
in this trial because all of the federal judges in Tennessee
have recused themselves from participating. They asked
to be excused from participating in this trial because each
2 Actually all of the U.S. District Judges in the Middle District
of Tennessee had disqualified themselves. After completion of the
emeeten, < De dary, ae Sees Wiel Indes tn tie sss was forced to
the s illness and subsequent death
a US. Circuit Ju from the West-
ern District of Tennessee who completed the trial.
— A-15 —
Nos. 81-5643-45 United States v. Blanton, et al. 15
of them felt that there might be some reason that either
he could not be completely fair and impartial, or that
the public, and perhaps the parties themselves, the at-
torneys or other people, might feel that they could not
be completely fair.
The only reason I mention that to you now is to in-
dicate that if judges very freely and frankly remove
themselves from the participation in a trial, if in the
course of this inquiry any reason occurs to you why
perhaps you could not be fair, you should have no re-
luctance whatever in indicating that fact to the Court.
The questions to be asked may indicate to the Court
or to counsel some reason that any one of you might
have difficulty in being fair in this case. And perhaps
even more importantly, this inquiry may indicate to you
yourself some reason why you might have difficulty being
fair and impartial. It may be perhaps very likely some-
thing you have never thought about yourself. But there
may be a suggestion contained in a question that will
cause you to say, “Perhaps I would have difficulty being
fair.” And in fairness and honesty to the parties, indicate
that fact to the Court. And of course, you will be ex-
cused from any further duties in the matter.
Ladies and gentlemen of the venire, while the ques-
tions at this particular stage of the procedure are di-
rected primarily to the 12 persons seated in the jury box,
I also ask that each of you listen carefully to all of the
questions that are asked so that if at some later stage of
the proceeding you are asked to occupy a seat in the
jury box, it will not be necessary to repeat all of the
questions which will be asked.
In that regard and for that purpose, I ask whether all
of you can hear me. The ladies and gentlemen there in
the back of the courtroom, are you having any difficulty
hearing at all? I take it that the public address system
is making it possible for you to follow the proceedings.
— A-16 —
16 United States v. Blanton, et al. Nos. 81-5643-45
Ladies and gentlemen, if you have an affirmative
answer to a question, if there is some suggestion made
in a question that you know a person or you have a
feeling about a given matter, raise your hand and in-
dicate that circumstance to the Court. We will then
probably follow up on that question.
And I urge you to be extremely careful in answering
any question that may be put to you. Answer only the
precise question asked. Do not volunteer anything be-
yond the scope of the question itself. And again, I ask
that you listen carefully to the question and then limit
your answer precisely to answering the question, without
volunteering any additional information or any additional
opinion, anything of that nature.
For instance, if you are asked if you know a given
witness and you say, “Yes.” And you are asked if the
fact that you know that person would make you more
apt to believe him or disbelieve him, answer that ques-
tion simply yes or no. Do not say, “I would never believe
him because I know him to be a liar.”
Put it in that form. You may consider that a little
strong, but prospective jurors have made statements like
that. And the remedies that are required after a state-
ment like that is made in the courtroom are strenuous
ones. So please don’t volunteer any additional informa-
tion, and particularly, express any opinions that you
have not been asked to express.
Obviously, ladies and gentlemen, it would be difficult
for you to be fair and impartial if you knew any of the
parties well. And I therefore introduce them to you in
the order that they are named in the indictment.
At this point the trial judge identified the defendants and
those associated with the prosecution and the defense as
counsel.
In the same general context, ladies and gentlemen, I
— A-17 —
Nos. 81-5643-45 United States v. Blanton, et al. 17
recognize that partially because of the fact that these
defendants held such offices, this entire matter has
been the subject of attention of the news media. I am
sure that all of you have at some time read something
about this case in the newspapers, have heard something
concerning it on the radio at some time, or have even
seen or hearc: reference to it on television at some time.
Similarly, it is entirely likely that some of you may have
formed some tentative opinion concerning the probable
guilt or innocence of some of the persons involved, in-
cluding these defendants. However, the test to be ap-
plied in determining vour qualifications to sit as jurors
is not whether you have heard something about the case
from the news media or whether you have formed any
kind of a tentative opinion based on such reports. Rather
— and I put this in the form of a question — the test is,
will you be able to put from your minds whatever you
may have seen and heard, and any opinion which
you may have tentatively reached, and then to decide
this case solely on the facts as you determine them to be,
on the sole basis of the evidence which will be adduced
in this trial after application of the appropriate law?
I take it from your silence that none of you feel that
he or she has been prejudiced by what you may have
heard or seen.
Yes, ma’am?
JUROR NO. 1 (SHEILA GIBSON): _ I have been
sitting here listening to you. And I am not sure that I
would be impartial. I do have somewhat of an idea,
from the things [ have read and heard.
THE COURT: Thank you very much. You may be
excused.
— A-18 —
18 United States v. Blanton, et al. Nos. 81-5643-45
QUESTION 3
Did the voir dire examination of jurors suffice to produce
an impartial jury and a fundamentally fair trial?
The answer to this question is “Yes.”
The trial judge elected to deal with the problem by 1) ex-
tensive questioning concerning prior media impact and juror
associations, coupled with many dismissals based on even
hints of possible prejudice, 2) very substantial increases in the
number of peremptory challenges available to each defen-
dant (30 in all), and 3) reliance on defendants’ use of detailed
questionnaires concerning al] potential jurors coupled with
sensitive responses by the court to any of defendants’ chal-
lenges arising from such use.
What follows are selected illustrations or results of each of
these techniques as the trial judge employed them:
1) Media impact and juror associations.
What follows are excerpts from the 289 page voir dire ex-
amination of jurors:
[THE COURT:]} Is there anything in that fact, the
fact that you are a state employee, that would make this
a difficult case for you to participate in?
[POTENTIAL JUROR:] MS. YATES: No, not that
I know of, because nothing has been discussed since I
have been in the Mental Health Department over at
Central State. It has never been mentioned between the
two of us in the office.
THE COURT: Do you hold a civil service position?
MS. YATES: No.
THE COURT: I am not familiar enough with Ten-
nessee structure to perhaps intelligently approach this.
But are you a provisional employee, or what is your
status?
MS. YATES: I am the clerk ordering in the Mainten-
ance Department. I order all the supplies.
— A-19 —
Nos. 81-5643-45 United States v. Blanton, et al. 19
THE COURT: But you have no assured tenure in
that position?
MS. YATES: (Shakes head. )
THE COURT: And you are, to put it most bluntly,
you would be subject to discharge without cause; it
that correct?
MS. YATES: No, I am pretty well situated.
THE COURT: But in any event, you do not hold
your position on the basis of any kind of civil service
or any protection?
MS. YATES: No, sir, I am not.
THE COURT: So it is at least conceivable that if
there are any political ramifications that might be at-
tributed to your vote in this case, you might suffer some
consequences, at least theoretically?
MS. YATES: I don’t know about that.
THE COURT: Well, I doubt very seriously if any of
these things would happen, Ms. Yates. But discretion is
the better part of valor. And you will be excused.
What is your name, sir?
JUROR NO. 10 (LARRY G. WILLIAMS): Williams.
THE COURT: Have you heard all the questions that
have been asked here this morning and afternoon?
MR. WILLIAMS: Yes, sir.
THE COURT: Has anything that’s been asked or said
indicate to you any reason why you should not sit as a
juror here?
MR. WILLIAMS: Yes, sir. You mentioned the media.
And the newspaper. That.
THE COURT: You mean you have read them, and
you have formed a conclusion?
MR. WILLIAMS: Yes, sir.
THE COURT: Very well, we appreciate your frank-
ness. You may be excused. (Tr. 145-46)
[THE COURT:] I'll ask all of you, has anything that
has been said, or any question that’s been asked, sug-
gested to any one of you any reason why there might be
20
— A-20 —
United States v. Blanton, et al. Nos. 81-5643-45
a problem concerning your participation as a fair and
impartial juror? Yes, sir?
ALTERNATE NO. 4 (WOODROW LESTER) Due
to the nature of the trial— I'm a trustee at Temple Baptist
Church in Murfreesboro. And my wife is a bookkeeper
there. And I’m — due to the nature of the trial, I may
not be able to make a just judgment concerning my —
concerning the nature of the trial. And it may cause
undue ridicule or embarrassment as far as the church
work goes.
THE COURT: I really don’t particularly understand
why.
MR. LESTER: Well, if— They may give me a, you
know — may give me a hard time about it if some — if
Mr. Blanton and the others were acquitted.
THE COURT: Is this essentially a religious organiza-
tion by which you are employed?
MR. LESTER: Yes, sir. Temple Baptist Church.
THE COURT: Are you suggesting that there is a
religious organization that is not willing to have its em-
ployees participate fully in civic affairs?
MR. LESTER: I'm sure they wouldn't mind me par-
ticipating in it in as far as the trial and jury goes. But
I don’t know about this particular case.
THE COURT: You mean solely on the basis of the
duration of it?
MR: LESTER: No, sir. On the subject matter. Con-
cerning the alcoholic beverages. It’s in our church cove-
nant that we don’t—
THE COURT: I misunderstood what you were say-
ing, Mr. Lester. You may be excused. Thank you for your
frankness. (Tr. 251-52)
THE COURT: Mr. Bell, would your answer to any
question that has been asked here today be any different
than the answers of the other five persons seated tenta-
tively as alternate jurors here this morning?
MR. BELL: Yes, it would.
— A-21 —
Nos. 81-5643-45 United States v. Blanton, et al. 21
THE COURT: There would be a difference?
MR. BELL: Yes, sir.
THE COURT: What is the difference, sir?
MR. BELL: I have already formed my opinion?
THE COURT: You do have an opinion concerning
the ultimate issues in the case?
MR. BELL: Yes, sir.
THE COURT: Thank you, Mr. Bell. You may be
excused.
Good morning, Mr. Pigg. I'll amend that. Good aft-
ernoon.
Have you been able to hear everything that’s happened
here today?
ALTERNATE NO. 2 (JOE H. PIGG) Yes, I have,
Your Honor.
THE COURT: Has anything that’s been said or ques-
tions that have been asked indicated to you any reason
why you could not serve as a fair juror in this case?
MR. PIGG: Your Honor, I would like to be excused
for the reason I've already formed an opinion.
THE COURT: You may be excused.
I'm having a little trouble, reading your name.
ALTERNATE NO. 2 (MARGARET L. KEMNETZ)
Kemnetz.
THE COURT: Kemnetz, thank you. Is the third
letter an “M”?
MS. KEMNETZ: Yes.
THE COURT: All right. Ms. Kemnetz, while you
were seated in the back of the jury room (sic.), were you
able to hear all the statements and questions of the
Court?
MS. KEMNETZ: Yes, sir.
THE COURT: Did anything that’s been said or asked
suggest to you any reason why you could not be a fair
juror in this case?
MS. KEMNETZ: Yes, sir. I’m acquainted with Bernie
Weinstein. And I already have formed an opinion.
THE COURT: Will the reporter repeat that answer
to the Court?
22
— A-22 —
United States v. Blanton, et al. Nos. 81-5643-45
MS. KEMNETZ: I'm acquainted—
THE COURT: No, I don’t want you to—
THE REPORTER: “I’m acquainted with Bernie
Weinstein. And I already have formed an opinion.”
THE COURT: All right. Thank you very much. You
may be excused. (Tr. 279-81)
THE COURT: In addressing myself to the newly
seated alternates, again we ask whether you have been
able to hear everything that’s been said here this morn-
ing. Have you heard all the statements of the Court and
all the questions that have been asked?
On the basis of what you have heard, do you now feel
— do you know of any reason why you perhaps could not
be a fair and impartial juror in this case?
Mr. Hibbett?
ALTERNATE NO. 1 (EUGENE HIBBETT) Yes,
sir. I don’t think I would be a good candidate for either
side. I know many—
THE COURT: Don’t express any opinions. Do you
know persons who are involved in the case?
MR HIBBETT: Yes.
THE COURT: You indicated for either side.
MR. HIBBETT: That's right.
THE COURT: But in any event, your own personal
feeling, Mr. Hibbett, is that you — it would be difficult
for you to be fair and impartial if you were asked to
serve, on the basis of your knowledge of some of the
people involved?
MR. HIBBETT: Yes.
THE COURT: Thank you very much, sir. You may
be excused.
THE COURT: Ms. Meehan?
ALTERNATE NO. 1 (NANCY L. MEEHAN) Yes,
sir.
THE COURT: Have you heard everything that’s
been said?
MS. MEEHAN: Yes, I have.
Nos. 81-5643-45 United States v. Blanton, et al. 23
THE COURT: Is there anything that suggested to
you any reason you could not be a fair and impartial juror
in this case?
MS. MEEHAN: Two reasons. One, I'm waiting ap-
proval on my application to the police department. Two,
I've already formed an opinion.
THE COURT: What was the second one?
MS. MEEHAN: I've already formed an opinion on
the outcome.
THE COURT: Very well. Thank you, Ms. Meehan.
You may be excused.
THE COURT: Good morning, Mr. Hicks. Have you
heard everything that’s happened here this morning?
ALTERNATE NO. 1 (WILLIAM M. HICKS) Yes,
sir.
THE COURT: Has any of it suggested any reason
why you couldn’t serve fairly and impartially in this
case?
MR. HICKS: I'm a long-time friend of one of the
witnesses, Mayor Richard Fulton. He and I were raised
up practically together.
THE COURT: You grew up with Mr. Fulton?
MR. HICKS: Yes, sir.
THE COURT: Do you have a continuing contact
with him?
MR. HICKS: Yes. We went all the way through
school together. Known him since childhood.
THE COURT: Do you think the fact that you know
him and continue to be a close friend of his, would that
make it difficult for you to participate in this case?
MR. HICKS: I'm afraid, Your Honor, it would.
THE COURT: Very well. You may be excused.
Mr. Alexander, have you heard everything that’s hap-
pened today?
ALTERNATE NO. 1 (JAMES H. ALEXANDER)
Yes, sir.
THE COURT: Have any of the statements of the
Court or questions indicated to you any reason why
if you were seated as an alternate, and then were re-
24
— A-4—
United States v. Blanton, et al. Nos. 81-5643-45
quired to serve as a member of the Jury itself, that you
could not be fair?
MR. ALEXANDER: Well, yes, sir, Your Honor.
THE COURT: I don’t understand. You mean, yes,
there is a reason? Or you—
MR. ALEXANDER: Yes, sir.
THE COURT: What is that reason?
MR. ALEXANDER: Well—
THE COURT: Don’t state an opinion, sir. Do you
know somebody, or—
MR. ALEXANDER: I'm acquainted with Bob Fren-
sley.
THE COURT: And because of that acquaintanceship
or friendship, whatever it is, —
MR. ALEXANDER: Friendship.
THE COURT: — you feel it would be embarrassing
or difficult for you to participate in this case? It that
what you're saying to the Court?
MR. ALEXANDER: Well, not necessarily embarras-
sing. But I have respect for him. And I take his word on
anything he says.
THE COURT: So that you would be inclined to give
greater weight to his testimony than perhaps to some
other person who testifies whom you do not know?
MR. ALEXANDER: Yes, sir.
THE COURT: Thank you, Mr. Alexander. You may
be ‘excused.
Good morning, Mr. Miller. Have you been able to hear
all the questions and statements?
ALTERNATE NO. 1 (WALTER KENNETH MIL-
LER) Yes.
THE COURT: Has anything suggested to you any
reason that you would have trouble being fair if selected
as a juror?
MR. MILLER: Due to the extent of the coverage
of the press, I have already formed an opinion. I feel
like I would be an affected witness.
THE COURT: Very well, you may be excused.
(Tr. 263-67 )
— A-25 —
Nos. $1-5643-45 United States v. Blanton, et al. 25
Judge Engel’s dissent criticizes the voir dire as consisting
of “a single question eliciting only a juror assurance (through
silence ) of impartiality.” [dissent at p.3] As can be seen from
excerpts of the transcript, however, the voir dire was much
more extensive than indicated by the dissent. We believe that
the trial judge did succeed in securing the cooperation of the
jurors in disclosing possible bias. We also believe that he
reacted quickly and effectively to protect defendants from any
such bias.
2) Peremptory Challenges
Under the applicable rule, Federal Rules of Criminal Pro-
cedure 24(b), the government was entitled to six peremptory
challenges and the three defendants were entitled to ten. The
defendants sought an additional twenty challenges, ten for
each defendant, and the government objected. The trial judge
granted defendants’ request. Only one of the defendants used
all peremptory challenges.
While we recognize that appellants contend in this case
that their use of peremptory challenges was hampered by their
inability to explore each juror’s contact with media expres-
sions prior to trial, we also are profoundly aware that the most
searching cross-examination personally conducted by a lawyer
for a defendant might not suffice to bring into the trial record
a secretly held bias on the part of a juror against a particular
defendant. It is, of course, in part for that reason that twelve
jurors are chosen and the verdict of guilt must be unanimous.
The trial judge’s grant of so many additional peremptory chal-
lenges, coupled with the information supplied as to each
prospective juror in the official questionnaire, contributes sub-
stantially to our conclusion that in sum total the jury voir
dire as conducted was within the discretion of the trial judge.
3) The Questionnaires
As indicated above, each juror in the entire venire was asked
to and did furnish answers to the official questionnaire, which
is produced on the following page.
— A-27 —
Nos. 81-5643-45 United States v. Blanton, et al. 27
THE LAW OF THIS CASE
The fundamental standard of review of a trial judge's con-
duct of a voir dire examination is set forth in the most dra-
matic case where the Supreme Court has dealt with the
central question of this case.
In Irvin v. Dowd, 366 U.S. 717, 722-24 (1960), the Supreme
Court, with Justice Tom Clark writing for the Court, said as
follows:
In essence, the right to jury trial guarantees to the
criminally accused a fair trial by a panel of impartial,
“indifferent” jurors. The failure to accord an accused a
fair hearing violates even the minimal standards of due
process. In re Oliver, 333 U.S. 257; Tumey v. Ohio, 273
U. §. 510. “A fair trial in a fair tribunal is a basic re-
quirement of due process.” In re Murchison, 349 U. S.
133, 136. In the ultimate analysis, only the jury can
strip a man of his liberty or his life. In the language of
Lord Coke, a juror must be as “indifferent as he stands
unsworne.” Co. Litt. 155b. His verdict must be based
upon the evidence developed at the trial. Cf. Thompson
v. City of Louisville, 362 U. S. 199. This is true, regard-
less of the heinousness of the crime charged, the appar-
ent guilt of the offender or the station in life which he
occupies. Jt was so written into our law as early as 1807
by Chief Justice Marshall in 1 Burr's Trial 416 (1807).
“The theory of the law is that a juror who has formed
an opinion cannot be impartial.” Reynolds v. United
States, 98 U.S. 145, 155.
It is not required, however, that the jurors be totally
ignorant of the facts and issues involved. In these days
3“(L)ight impressions which may fairly be supposed to yield
to the testimony that may be offered; which may leave the
mind open to a fair consideration of that testimony, constitute
no sufficient objection to a juror; but that those strong
deep impressions. which will close the mind against the testi-
mony that may be offered in opposition to them: which will
combat that testimony and resist its force, do constitute a
sufficient objection to him.”
28
— A-28 —
United States v. Blanton, et al. Nos. 81-5643-45
of swift, widespread and diverse methods of communica-
tion, an important case can be expected to arouse the
interest of the public in the vicinity, and scarcely any of
those best qualified to serve as jurors will not have
formed some impression or opinion as to the merits of
the case. This is particularly true in criminal cases. To
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 impartiality would be to establish an impossible
standard. It is sufficient if the juror can lay aside his
impression or opinion and render a verdict based on the
evidence presented in court. Spies v. Illinois, 123 U. S.
131; Holt v. United States, 218 U. S. 245; Reynolds v.
United States, supra.
The adoption of such a rule, however, “cannot 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.” Lisenba v. California,
314 U. S. 219, 236. As stated in Reynolds, 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... .” At p. 156. “The affirmative of
the issue is upon the challenger. Unless he shows the
actual existence of such an opinion in the mind of the
juror as will raise the presumption of partiality, the juror
need not necessarily be set aside .... If a positive and
decided opinion had been formed, he would have been
incompetent even though it had not been expressed.” At
p. 157. As was stated in Brown v. Allen, 344 U. S. 443,
507, the “so-called mixed questions or the application of
constitutional principles to the facts as found leave the
duty of adjudication with the federal judge” It was,
therefore, the dutv of the Court of Appeals to independ-
ently evaluate the votr dire testimony of the impaneled
jurors.
The rule was established in Reynolds that “[t]he finding
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— 9-v —
— A-29 —
Nos. 81-5643-45 United States v. Blanton, et al. 29
of the trial court upon that issue [the force of a prospec-
tive juror’s opinion] ought not be set aside by a reviewing
court, unless the error is manifest.” 98 U. S., at 156.
We find no “manifest” error in the trial judge’s ruling on the
impartiality of this jury. Indeed the contrast between Irvin
v. Dowd, supra and our instant case is very great. In the Irvin
case, Justice Clark pointed out:
Here the “pattern of deep and bitter prejudice” shown to
be present throughout the community, cf. Stroble v. Cali-
fornia, 343 U.S. 181, was clearly reflected in the sum total
of the voir dire examination of a majority of the jurors
finally placed in the jury box. Eight out of the 12 thought
petitioner was guilty. With such an opinion permeating
their minds, it would be difficult to say that each could
exclude this preconception of guilt from his deliberations.
In our present case no juror who helped determine the case
expressed a pretrial conviction of appellants’ guilt.
Infinitely closer to our present case are the facts and law
in a case written for the U.S. Supreme Court by Justice Clark
— the same Justice who wrote the Irvin v. Dowd opinion.
In Beck v. Washington, 369 U.S. 541, 555-58 (1962), Justice
Clark said:
As in his grand jury attack, petitioner makes no claim
that any particular petit juror was biased. Instead, he
states the publicity which prevented the selection of a
fair grand jury also precluded a fair petit jury. He argues
that such a strong case of adverse publicity has been
proved that any jury selected in Seattle at the time he was
tried must be held to be presumptively biased and that
the trial court’s adverse rulings on his motions for a
change of venue and for continuances were therefore in
error. Of course there could be no constitutional infirmity
in these rulings if petitioner actually rece‘ved a trial by an
impartial jury. Hence, our inquiry is addressed to that
subject.
30
—_
United States v. Blanton, et al. Nos. 81-5643-45
Petitioner's trial began early in December. This was
nine and one-half months after he was first called before
the Senate Committee and almost five months after his
indictment. Although there was some adverse publicity
during the latter period which stemmed from the second
tax indictment and later Senate hearings as well as from
the trial of petitioner's son, it was neither intensive nor
extensive. The news value of the original “disclosures”
was diminished, and the items were often relegated to
the inner pages. Even the occasional front-page items
were straight news stories rather than invidious articles
which would tend to arouse ill will and vindictiveness.
If there was a campaign against him as petitioner infers,
it was sidetracked by the appearance of other “labor
bosses” on the scene who shared the spotlight.
The process of selecting a jury began with the exclusion
from the panel of all persons summoned as prospective
jurors in the November 12 trial of Dave Beck, Jr. In addi-
tion, all persons were excused who were in the courtroom
at any time during the trial of that case. Next, the mem-
bers were examined by the court and counsel at length.
Of the 52 so examined, only eight admitted bias or a
preformed opinion as to petitioner's guilt and six others
suggested they might be biased or might have formed
an opinion — all of whom were excused. Every juror
challenged for cause by petitioner's counsel was excused;
in addition petitioner was given six peremptory chal-
lenges, all of which were exercised. Although most of the
persons thus selected for the trial jury had been exposed
to some of the publicity related above, each indicated
that he was not biased, that he had formed no opinion as
to petitioner's guilt which would require evidence to re-
move, and that he would enter the trial with an open
mind disregarding anything he had read on the case.
A study of the voir dire indicates clearly that each
juror’s qualifications as to impartiality far exceeded the
minimum standards this Court established in its earlier
— A-31 —
Nos. 81-5643-45 United States v. Blanton, et al. 31
cases as well as in Irvin v. Dowd, 366 U. S. 717 (1961),
on which petitioner depends. There we stated:
“To hold that the mere existence of any precon-
ceived notion as to the guilt or innocence of an
accused, without more, is sufficient to rebut the pre-
sumption of a prospective juror’s impartiality would
be to establish an impossible standard. It is suffi-
cient if the juror can lay aside his impression or
opinion and render a verdict based on the evidence
presented in court.” Id., at 723.
We cannot say the pretrial publicity was so intensive
and extensive or the examination of the entire panel re-
vealed such prejudice that a court could not believe the
answers of the jurors and would be compelled to find bias
or preformed opinion as a matter of law. Compare Irvin
v. Dowd, supra, at 723-728, where sensational publicity
adverse to the accused permeated the small town in
which he was tried, the voir dire examination indicated
that 90% of 370 prospective jurors and two-thirds of those
seated on the jury had an opinion as to guilt, and the
accused unsuccessfully challenged for cause several per-
sons accepted on the jury. The fact that petitioner did
not challenge for cause any of the jurors so selected is
strong evidence that he was convinced the jurors were
not biased and had not formed any opinions as to his
guilt. In addition, we note that while the Washington
Supreme Court was divided on the question of the right
of an accused to an impartial grand jury, the denial of
the petitioner’s motions based on the bias and prejudice
of the petit jury did not raise a single dissenting voice.
“While this Court stands ready to correct violations of
constitutional rights, it also holds, that ‘it is not asking
too much that the burden of showing essential unfairness
be sustained by him who claims such injustice and seeks
to have the result set aside, and that it be sustained not
as a matter of speculation but as a demonstrable reality.’”
= en
32 United States v. Blanton, et al. Nos. 81-5643-45
United States ex rel. Darcy v. Handy, 351 U. S. 454, 462
(1956). This burden has not been met.
This circuit has adopted the above Irvin v. Dowd standard
in the following language:
“The constitutiona! standard of fairness requires that a
defendant have ‘a panel of impartial, “indifferent jurors.” ’
Irvin v. Dowd, 366 U.S. at 722 [81 S.Ct. at 1642].”
Murphy, supra, [421 U.S.] at 799, 95 S.Ct. at 2035. It is
not necessary that the jurors be totally ignorant of the
facts and issues involved. Irvin, supra, at 722, 81 S.Ct. at
1642.
To 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 impartiality would be to es-
tablish an impossible standard. It is sufficient if the
juror can lay aside his impression or opinion and
render a verdict based on the evidence presented in
court. (citations omitted ).
Id. at 723, 81 S.Ct. at 1642.
(Citations omitted. )
During the voir dire, Juror Yell was asked if there was
any reason she might be unable to return an unbiased
and unprejudiced verdict. She answered “No.” At the
hearing after the trial, she indicated that the conversa-
tion she overheard had no bearing on her decision. Al-
though a juror’s assurance of impartiality is not dispositive
of petitioner’s rights, a trial judge’s finding of impartiality
should be set aside only upon a showing that prejudice
is manifest. Irvin, supra, 366 U.S. at 723, 81 S.Ct. at 1642.
Haney v. Rose, 642 F.2d 1055, 1059-60 (6th Cir. 1981).
Under this legal precedent it is significant that, following
the voir dire examination, Judge Peck denied further motions
regarding the conduct of the voir dire saying:
_—<
Nos. 81-5643-45 United States v. Blanton, et al. 33
[Flor whatever it is worth, I have the view that the Jury
that has been selected is as fair and impartial a Jury as
could be obtained. (Tr. at 291)
We now hold, both for the reasons set forth above and for
one additional reason set forth below, that the trial judge did
not abuse his discretion in the handling of jury selection in
this trial.
Defendants have adduced no proof that this was a biased jury.
At the en banc hearing of this case, the author of this
opinion asked lead counsel for Governor Blanton whether
there was evidence of jury bias. The response was made
wholly in relation to one juror and cited evidence which we
deem quite inconclusive. We have searched this record for
any other such evidence pertaining to periods before, during,
or posttrial and have found none.
For the reasons set forth above, we believe that the jury
selection process, although not perfect, was nonetheless both
fair and effective in that it resulted in an impartial jury.
We find no merit as to other issues, and in this regard adopt
the panel opinion’s dispositions for the reasons stated therein.
The judgment of the District Court is «firmed.
= A346 —
34 United States v. Blanton, et al. Nos. 81-5643-45
Kennepy, Circuit Judge. I write separately only to high-
light what I consider to be the significant fact that defense
counsel never complained to the District Court about the
group-nature of the inquiry of the first group of prospective
jurors into whether they could lay aside any impressions or
opinions that they may have formed and render a verdict
based solely on the evidence presented in court. Defense
counsel did unsuccessfully assert a right to participate in the
voir dire examination. There is no evidence, however, that
defense counsel ever requested an individual voir dire by
the judge on the question of the jurors’ ability to lay aside
any impressions or opinions that they may have formed.
Moreover, there is every indication on the record that the
trial judge would have complied with such a request had
it been made. Whenever a prospective juror indicated that
she or he had formed some opinion concerning the guilt or
innocence of the defendants, the trial judge made further
inquiry into that juror’s ability to lay aside the opinion. Also,
whenever a new juror was called to replace someone who
had been excused, the trial judge inquired into her or his
ability to render a verdict based solely on the evidence
presented in court. At no point did defense counsel request
that the original veniremen be individually questioned on
that issue. Accordingly, defendants should not now be heard
to complain that group voir dire examination was insufficient
to produce an impartial jury and a fundamentally fair trial.
— A-35 —
Nos. $1-5643-45 United States v. Blanton, et al. 35
EncEL, Circuit Judge, dissenting.
The en banc opinion today establishes a new rule of law
governing jury selection in federal trials involving widespread
pretrial publicity.
That new rule is thai where inflammatory pretrial publicity
is pervasive, inquiry into an individual juror’s knowledge and
predisposition is superfluous. The only necessary inquiry, ac-
cording to the majority, is whether the juror believes in his
own mind that he can lay aside such knowledge and pre-
conceived notions and decide the case only upon the evidence
presented. The en banc opinion further imposes upon the de-
fense the burden of proving prejudice although the trial court
effectively precluded any meaningful inquiry needed to es-
tablish it. These propositions overrule established precedent. I
therefore respectfully dissent.
I remain completely satisfied with the careful analysis and
scholarship of Judge Gibson in the original panel decision,
United States v. Blanton, 700 F.2d 298 (6th Cir. 1983).' That
opinion fully discusses the law and policies concerning the
adequacy of voir dire in cases of widespread pretrial pub-
licity. These additional comments supplement Judge Gibson's
fine opinion, addressing additional concerns and, occasionally,
misconceptions which I believe have developed during the
course of the en banc proceedings.
L
The en banc opinion is unprecedented in the scope of the
limitations it permits upon jury voir dire in trials involving
widespread, inflammatory publicity. Not one question was
ae ee ee ee SO See Beown wo wht ied. 700 F.2d
at 298 The jury selection process under cormtiay, however,
place FF Sy a te cat. Judge Brown took over
— selection, when the original judge, through circumstances
y beyond his control, was unable to continue. Both were
Circuit Judges, and each was successively designated ‘by the Chief
Judge of yeah thy ERNST ne
tion of all the district judges in District of T
— A-36 —
36 United States v. Blanton, et al. Nos. 81-5643-45
permitted to be put to the prospective jurors, either indi-
vidually or as a group, concerning the sources of publicity
they had been exposed to or the content of such sources
they might have remembered.
Judge Gibson’s opinion makes clear that although habeas
corpus review of jury selection is judged solely on a consti-
tutional standard, see United States ex rel. Durcy v. Handy,
351 U.S. 454, 462 (1956) (defendant must show bias not
as a matter of speculation, but as a demonstrable reality),
review of federal prosecutions also rests on the reviewing
court's supervisory power. See Marshall vy. United States, 360
U.S. 310 (1959) (per curiam); Murphy v. Florida, 421 U.S.
794 (1975). Thus, in federal cases involving “pervasive” pre-
trial publicity, prejudice is presumed. Murphy, 421 U.S. at
798-99; see also, Irvin v. Dowd, 366 U.S. 717, 723 (1961);
Goins v. McKeen, 605 F.2d 947, 951 nn. 7 & 8 (6th Cir. 1979).
Once prejudice is so established, it is the trial judge’s duty to
assess each potential juror’s impartiality — i.e., his ability to
lay aside his impression or opinion and render a verdict based
on the evidence. Reynolds vy. United States, 98 U.S. 145, 155
(1878). Finally, it is “the duty of the Court of Appeals to
independently evaluate the voir dire testimony of the im-
paneled jurors.” Irvin, 366 U.S. at 723 (emphasis added).
The heart of the issue in this appeal is how much informa-
tion the voir dire must elicit concerning the source and con-
tent of a venireman’s knowledge of the case in order that
the trial court and, on review, the court of appeals may assess
jury impartiality effectively. Judge Gibson’s opinion relies on
the established principle that “[t}he juror’s assurances that he
is equal to this task [of laying aside preconceptions] cannot
be dispositive of the accused's rights ....” Murphy v. Florida,
421 U.S. 794, 800 (1975). That same principle has guided our
circuit in United States v. Ciacalone, 588 F.2d 1158, 1163
(6th Cir. 1978), cert. denied, 441 U.S. 944 (1979), and Goins
v. McKeen, 605 F.2d 947, 952-53 (6th Cir. 1979).
ae AeS?
Nos. 81-5643-45 United States v. Blanton, et al. 37
To my knowledge, no court of appeals has ever before af-
firmed a conviction in a case of widespread and inflammatory
pretrial publicity when the entire voir dire concerning pub-
licity consisted of a single question eliciting only a juror as-
surance (through silence) of impartiality:
[T]he test is, will you be able to put from your minds
whatever you may have seen and heard, and any opinion
which you may have tentatively reached, and then to
decide this case solely on the facts as you determine
them to be, on the sole basis of the evidence which will
be adduced in this trial after application of the appropri-
ate law?
App. 1487.
As both the en banc opinion and Judge Gibson's panel opin-
ion make clear, the above question was preceded by frequent
admonitions specifically cautioning the jurors to refrain from
disclosing any further information bearing on possible bias,
either as to source or as to content:
And I urge you to be extremely careful in answering
any question that may be put to you. Answer only the
precise question asked. Do not volunteer anything be-
yond the scope of the question itself. And again, I ask
that you listen carefully to the question and then limit
your answer precisely to answering the question, without
volunteering any additional information or any additional
opinion, anything of that nature.
(emphasis added). App. 1468-69. Similar precautions were
repeated throughout the entire voir dire. See, e.g., 1479-80,
1506-07. In addition the trial judge on several occasions
chided (albeit gently) jurors whose answers or comments
threatened to disclose any specific knowledge ox opinion. See,
e.g., App. 1550, 1578, 1579.
It is singularly curious that the reason the trial judge ap-
parently felt that more specific questioning was unnecessary
— ee
38 United States v. Blanton, et al. Nos. 81-5643-45
was that he assumed that the entire venire had been exposed
to the pretrial publicity which even the en banc majority
admits was “massive.” En banc Op. at 6, ante, quoting 700
F.2d at 302. From this undeniable fact, the trial judge and
the en banc majority were led to the totally erroneous con-
clusion that it was therefore unnecessary to inquire into the
particular knowledge of any individual juror or the source
from which that knowledge was derived. This conclusion
directly conflicts with our circuit’s holding in Cvins v. McKeen,
605 F.2d at 952-53.
In Goins v. McKeen, our court indicated that juror exposure
to infammatory publicity — such as that so plainly spread
upon this record — “render[s] the circumstances inherently
prejudicial and . . . a violation of petitioner’s constitutional
right to trial by an impartial jury may be presumed.” Id. at
954. In contrast, the trial court here assumed that assurances
gained from silence were sufficient to overcome that pre-
sumption. The en banc opinion thrusts the burden upon the
defense to prove prejudice even though it has been presump-
tively established under the law. Compare En banc Op. at 31,
ante, with e.g., Murphy, 421 at 798-99.
I.
The en banc decision is completely inconsistent with Judge
Celebrezze’s opinion in United States v. Johnson, 584 F.2d
148 (6th Cir. 1978), cert. denied, 440 U.S. 918 (1979). In
Johnson, we set out the proper voir dire procedure concern-
ing pretrial publicity. Although trial judges have broad discre-
tion in conducting voir dire, we recognized that “this discre-
tion is limited by the ‘essential demands of fairness.’” Johnson,
584 F.2d at 155, citing, Aldridge v. United States, 283 U.S.
308, 310 (1931). Fairness requires that the veniremen not
only be questioned about their ability to disregard pretrial
publicity but also that they be questioned concerning “the
sources and intensity of (their) exposure” to the pretrial pub-
licity. Johnson, 584 F.2d at 155.
— A-39 —
Nos. 81-5643-45 United States v. Blanton, et al. 39
In Johnson, our court also addressed the circumstances in
which the use of “content” questions is appropriate. “Content”
questions request the prospective juror to “recite- everything
he remembers about the topic of inquiry.” Id. at 156 n.17. In
the context of pretrial publicity, a “content” question would
be asked to determine what a prospective juror remembered
about a specific article. Although “the better practice is for
the court to ask content questions of any juror who has been
exposed to pretrial publicity which the court knows to be of
clear prejudicial potential,” id. at 156 n.19, we need not con-
sider the issue of content questioning since defendants were
never given an opportunity to discover the sources of what
the prospective jurors had read or seen. The trial judge thus
violated the fundamental rule that veniremen must be ques-
tioned concerning “the sources and intensity of [their] ex-
posure” to pretrial publicity. Jd. at 155. “Content” questions
need be asked only where “the nature of juror exposure to
. . . prejudicial material is not apparent from responses to
. more general [e.g., source] questions,” id. at 156, but
questions concerning the sources of exposure are never dis-
pensable.
As the en banc opinion acknowledges, the pretrial publicity
was massive. It would in fact be difficult to find a criminal
case in which the extent of publicity was so carefully chron-
icled and the objections to an abbreviated voir dire so clearly
and fully preserved. The Appendix includes 610 pages of de-
tailed newspaper accounts of the events leading to the trial of
these defendants. The en banc opinion is simply not faithful to
the record in suggesting that some articles containing favorable
material somehow neutralized the adverse publicity. It was
devastating. The publicity concerning Governor Blanton and
the other defendants in this appeal was not confined to the
matters involved in the trial. The articles covered not only
the entire range of the defendants’ alleged activity but also
implicated the defendants in the alleged criminal activities of
other well-known citizens of Tennessee, including other mem-
—e ee
40 United States v. Blanton, et al. Nos. 81-5643-45
bers of Blanton’s family. An objective examination of the
compiled record of newspaper publicity reveals that it was
overwhelmingly accusatory. For example, an article in the
Nashville Tennessean appearing April 7, 1981 (two weeks be-
fore the jury selection commenced) was entitled: “JAKE
BLANTON ADMITS TAKING BID-RIG PAYOFF.” App. 264.
The opening paragraphs of the article state:
James C. (Jake) Blanton admitted in federal court
yesterday he told a meeting of bid riggers here in 1978
he wanted a $41,000 payoff to buy his girlfriend a house.
Blanton, 59, of Tupelo, Miss., also implicated his
nephew, Gene Blanton, former Gov. Ray Blanton’s
brother, in several schemes to rig state highway paving
contracts, as Gene looked on impassively.
App. 264. The record reveals in-depth media exploration of
charges that Governor Blanton and others were involved in
selling pardons during the closing days of his administration.
On April 15, 1981, less than one week before the jury selec-
tion began, the Tennessean in an article headlined “TAYLOR
ON TAPE LINKS RAY BLANTON TO CLEMENCY
DEALS” described the testimony of Arthur Wayne Baldwin?
concerning Governor Blanton's involvement in a “clemency-
peddling scheme” to sell clemency and commutations to
hardened state criminals at amounts said to sell clemency
and commutations to hardened state criminals at amounts
said to range from $3,000 to $100,000. App. 427. A follow-up
article the next day linked Blanton to 30 commutations, App.
425, while elsewhere in the same edition of the Tennessean
another article highlighted the ongoing trial of Gene Blanton
in Memphis for tax fraud. App. 426. A review of earlier
articles included in the record reveals the derogatory nature
2 Baldwin's conviction in Memphis of four counts of a federal in-
dictment charging him with arson and unlawful use of explosives
was upheld by a 1 of this court in United States v. win,
81-5580 (6th Cir Sabouny 16, 1983).
— A-4i —
Nos. 81-5643-45 United States v. Blanton, et al. 41
of the clemency-sale stories, particularly those pertaining to
the proposed pardon of an allegedly psychotic double mur-
derer. See, e.g., App. 290-92, 293-94, 299, 302-03. The alle-
gations of “influence-peddling,” mail fraud, the extortion in-
volving Governor Blanton and co-defendants Hood and Allen,
which formed the basis of the instant litigation, are ex-
haustively chronicled in articles from the Nashville Tennes-
sean and Nashville Banner as well as other publications.
As an examination of the massive record reveals, a reader
of the Tennessean or the Banner was faced with a highly com-
plex and inflammatory story of allegedly illicit, unethical and
criminal activities which either directly involved the defen-
dants or linked them by name and association to others whu
were responsible. All of this was bound to lead to a substan-
tial probability that prospective jurors, particularly those who
read the two Nashville daily newspapers, would be exposed
to news of many crimes and activities beyond those directly
involved in the trial. A very real possibility existed that jurors
would confuse the activities of Governor Ray Blanton with
others in Blanton’s family who were also being charged or
implicated in a wide variety of illicit conduct.
It was thé absence of such a record in United States v.
Johnson, supra, which led Judge Celebrezze to uphold the
relatively limited voir dire there:
In this case, the requests by defense counsel at trial
for further questioning of veniremen related to pretrial
publicity generally and not to whether jurors recalled
any specific matters. The record of the voir dire contains
neither newspaper articles nor any description of other
publicity relating to the case. In the absence of a clear
foundation for inquiring into juror recollection of par-
ticular prejudicial matter, the trial judge was justified in
refusing to ask content questions. See Robinson, supra,
154 U.S.App.D.C. at 270, 475 F.2d at 381. Cf. Ham v.
South Carolina, 409 U.S. 524, 528 n.4, 93 S.Ct. 848, 35
L.Ed.2d 46 (1974): United States v. Giacalone, 574
F.2d 328, 334-35 (6th Cir. 1978).
— A-42 —
42 United States v. Blanton, et al. Nos. 81-5643-45
Id. 584 F.2d at 156. Even in Johnson, however, inquiry was
permitted to determine whether jurors had actually read cer-
tain particularly inflammatory articles. The reviewing court
therefore observed that “knowledge of juror exposure to them
would provide defense counsel with sufficient information to
intelligently exercise peremptory challenges, without addi-
tional questioning as to what jurors remembered about the
reports.” Id. at 156.
I.
The jury voir dire in this case was altogether inadequate to
uncover possible bias in the jurors. The precautions taken by
the trial judge were simply not responsive to the dangers
posed by the selection technique employed. As noted in sec-
tion I, supra, the technique of voir dire examination actually
encouraged nondisclosure of juror bias and was inherently
intimidating, although clearly not intended to be.
It does not take extensive acquaintance with jury trials to
reach the conclusion that most jurors perceive themselves as
fair-minded, objective individuals. Indeed, most are. It is also
a fair observation that many, if not most jurors prefer to re-
main as inconspicuous as possible during voir dire. This is
only natural. Jurors find themselves in a strange environment.
Even the best efforts of trial judges and attorneys cannot quite
dispel the courtroom atmosphere of forbidding formality
which naturally inhibits volunteered speech. The voir dire
here presents a classic case of such reticence on the part of
jurors during questioning concerning their personal acquaint-
ance with parties and anticipated witnesses. On a number of
occasions there was no response when questions concerning
familiarity with witnesses were put to the venire en masse and
yet when an attorney had knowledge that a particular juror
was familiar with a given witness that juror readily admitted
such knowledge. Although some jurors did not respond sooner
because the juror did not connect the name given with the
= A-43 =
Nos. 81-5643-45 United States v. Blanton, et al. 43
person he or she knew, or didn’t hear the question when it
was originally asked, the failure to respond more often re-
flected the completely natural reticence of a juror to say any-
thing at all unless directly questioned. Volunteering answers
to questions put only generally to the venire én masse comes
hard for most jurors.
The majority opinion stresses that the trial judge was par-
ticularly generous in allowing additional peremptory chal-
lenges. This was indeed a salutary precaution given the nature
of the case. However, | respectfully submit that the problem
was not so much the number of peremptory challenges al-
lowed (and they were not all used) as it was the absence of
any meaningful information which might have enabled the
defense counsel to exercise those challenges intelligently.
Likewise the extensive questioning of jurors concerning
their acquaintance with parties, or witnesses, or law enforce-
ment personnel, or persons in state government fell far short
of curing the need for the most important information of all:
what did a juror know about the case coming before him?
What accurate or inaccurate preconceived notions did he have
concerning it? The en banc opinion appears to conclude that
if one but asks enough other questions, the inherent risk in
not asking the most relevant questions is somehow dissipated.
One need only ask why it seemed important to the trial judge
that no juror disclose any specific knowledge or preconceived
opinion to understand the prejudice of this method. Why
should a juror not voluteer information? Obviously the court
feared that in so disclosing, the rest of the venire might some-
how be contaminated. I respectfully suggest that if that fear
was justified, the answer was not to suppress the information
altogether. If the dreaded answer would contaminate the
entire venire, why would it not also contaminate the juror
who entertained such notions irrespective of whether he or she
subjectively believed it would?
— A-44 —
44 United States v. Blanton, et al. Nos. 81-5643-45
IV.
The trial judge's refusal to allow the defense to discover
what the veniremen had read or heard concerning Blanton
not only adversely prejudiced the ability of the court and
counsel to weigh challenges for cause, it also had a profoundly
debilitating effect upon the intelligent use of peremptory chal-
lenges. Even counsel for the government joined the defense in
requesting a more explicit voir dire on publicity. See section
V, infra, quoting App. 1531-32.
The en banc decision seeks to excuse the trial judge's error
by noting that defendants had access to information supplied
by each venireman on an official questionnaire, that defen-
dants were given thirty peremptory challenges, and that guilty
verdits must be unanimous.
A glance at the “official questionnaire” reveals that it could
provide no information regarding exposure to pretrial pub-
licity other than whether the juror could read, write, and
understand English.?
As is earlier observed, unlimited peremptory challenges
could have been granted, but with no factual basis on which
to exercise them intelligently, this additiona] protection would
be futile.
The en banc opinion also indicates that the requirement of
a unanimous jury verdict is an antidote for inadequate voir
dire. However, no single requirement for a fair trial can re-
lieve the court of the responsibility to observe all of the pro-
cedures which the cumulative wisdom of the years has found
so necessary to a fair trial. The effective use of peremptory
challenges has always been considered an essential, indepen-
dent requirement in Anglo-Saxon jurisprudence.
Peremptory challenges were solidly established in early
English law. Blackstone hailed the peremptory challenge as
“a provision full of that tenderness and humanity to prisoners,
3 See En banc Op. at 26, ante.
©
Nos. 81-5643-45 United States v. Blanton, et al. 45
for which our English laws are justly famous.” 4 Blackstone's
Commentaries 352 (1822). In Swain v. Alabama, 380 U.S.
202, 219 (1965),* the Supreme Court noted that “the per-
sistence of peremptories and their extensive use demonstrate
the long and widely held belief that peremptory challenge
is a necessary part of trial by jury.” Although the Constitu-
tion does not require Congress to grant peremptory chal-
lenges, the Supreme Court has recognized that the challenge
is “‘one of the most important of the rights secured to the
accused.’” Swain, 380 U.S. at 219, citing, Pointer v. United
States, 151 U.S. 396, 408 (1894). “[T]he denial or impairment
of the right is reversible error without a showing of preju-
dice.” Swain, 380 U.S. at 219 (citations omitted); see also
United States v. Johnson, 584 F.2d at 155.
In Johnson, Judge Celebrezze observed that “[w]here veni-
remen have been exposed to prejudicial publicity, the nature
and degree of that exposure is certainly a matter of legitimate
concern to a defense attorney . . . deciding on peremptory
challenges.” 584 F.2d at 155. Here, the trial judge completely
frustrated the right to exercise peremptory challenges by pre-
venting the defense from acquiring the information it needed
to effectively utilize its peremptories. Under Swain and John-
son, the trial court committed reversible error.
There remains another serious prejudice not addressed by
the en banc opinion. Both Governor Blanton and defendant
Allen timely moved the court for a change of venue. The trial
judge sensibly deferred ruling upon this motion until he was
able to determine whether an impartial jury could be selected
4In Swain v. Alabama, 380 U.S. 202, 218 (1965), the Supreme
Court noted that peremptory challenges and challenges for cause have
“fallen into disuse” in England. One explanation for this is the
“greater control” which English courts exercise over pretrial pub-
licity. Swain, 380 U.S. at 218 n.24. I fully agree with majority's
concern for the right of the press to report ongoing criminal investi-
gation and trials, especially those involving aff. of public im-
portance. However, concepts of fair trial and free press are not
necessarily ey Se. If a more sensitive voir dire is neces-
sary to accommodate both interests, in my opinion, the effort is fully
justified by the values implicated.
—
46 United States v. Blanton, et al. Nos. 81-5643-45
in Nashville. Once the jury was picked, the trial judge denied
the motion to change venue, ostensibly because experience
had shown that impartial jurors could be found in Nashville.
The only difficulty in this procedure was that the method of
voir dire effectively precluded both counsel and the trial
judge from determining whether the jurors were in fact un-
biased. The method also effectively deprived our court of any
record by which that decision could be reviewed.
V.
The en banc opinion and Judge Kennedy’s concurrence
seem to infer that the defendants’ difficulties in obtaining ade-
quate voir dire were of their own making. I respectfully dis-
agree.
The defendants made known their objections to the pro-
posed manner of voir dire early and often. Extensive written
requests for voir dire relating to pretrial publicity were sub-
mitted by Blanton, Hood, and Allen. Relevant excerpts from
those requests are appended hereto as Attachments A, B & C.
The observation in the concurrence that the defendants did
not ask for individualized voir dire before impanelling the
first group of jurors, is in my opinion, inaccurate.
Voir dire commenced on April 20, 1981. On April 14, 1981,
Blanton filed a “motion for Right of Counsel to Participate in
Voir Dire Examination.” That motion requested “that counsel
be permitted to participate in the voir dire examination out-
side the presence of other jurors.” App. 235 (emphasis
added). On April 20, 1981, Hood also “move[d] the court to
voir dire each prospective juror individually.” App. 615. Allen
moved for individualized voir dire of those jurors who stated
an opinion.’
The en banc opinion and the concurrence do not consider
that a broader question than individualized voir dire is at issue
=
ot Canes or Sg ee ee Oe
—
Nos. 81-5643-45 United States v. Blanton, et al. 47
here. Counsel strenuously objected to the fact that no ques-
tions about media exposure were asked of the venire, before
the first group of jurors was chosen. Counsel stated:
MR. WILLIS: Secondly, let me raise this question
with the Court. And I think, for the record, I should
move the Court orally at this time to ask the Defendant
Hood's questions number 39 through 58 previously sub-
mitted to the Court, all of which deal with pretrial pub-
licity, on the theory that the information that has been
developed from the Jury at this point is inadequate to
permit us to intelligently exercise a peremptory challenge.
MR. MCLELLAN, JR.: We would ask, Your Honor,
that you ask the Jury — which you have done in general
terms — but specifically, if their judgment has been af-
fected by reading articles with the name Blanton in it,
members of his family.
App. 1531. Even counsel for the Government requested a
more comprehensive voir dire on the subject of publicity:
MS. ARTHUR: I was just going to say that we would
join in Mr. Willis’ motion as far as additional voir dire on
publicity. Your Honor may or may not know about the
publicity that took place at the very end of Mr. Blan-
ton’s term in office. And I think Mr. Willis pointed that
out. We are not just talking about pretrial publicity
involving the case. The Government would urge Your
Honor to do some more voir dire on publicity.
App. 1531-32. Counsel continued to object to the procedure
after the first group of jurors was chosen, stating:
MR. WILLIS: Your Honor, I don’t want to wear my
welcome out with Your Honor. But I feel compelled once
again to raise the question of a more specific in-depth
inquiry into what these jurors have seen and read and
heard. And in that context, I cite Your Honor the deci-
sion of the Sixth Circuit in the United States versus
— A448 —
45 United States v. Blanton, et al. Nos. 81-5643-45
Dellinger, 472 Fed. 2d 340, which Your Honor is prob-
ably already well familiar with. We believe that we
need to have more of an inquiry than what reveals the
basis for a challenge of cause. We believe that we need
to have a sufficient in-depth inquiry so that we may
intelligently exercise our peremptory challenges.
App. 1574. See also App. 1565. Defendants by no means
waived their rights to challenge the adequacy of the voir dire.
VI.
In stating that the Supreme Court has not established a
per se rule regarding jury voir dire, the en banc opinion implies
tha’ the original panel has done so. I respectfully suggest that
a careful reader of Judge Gibson’s opinion will search in vain
for any expression of a per se rule. In fact, Judge Gibson em-
phasized the trial judge’s broad discretion. See 700 F.2d at
303, 309.
The panel opinion contains no invariable mandate to com-
pel either private or individualized interrogation of jurors or”
to adopt the “ABA standards,” however salutary they may
be.* Neither does the panel opinion compel the trial judge to
yield the voir dire, or any part of it, to the trial attorneys.
6 The Standard provides:
The following standards govern the selection of a jury in
those criminal cases in which questions of possible prejudice
are raised.
shall be a x court Be me or tape recording whenever
about the case and how ‘any expowure has afected that person's
attitude toward the trial, not to convince the prospective juror
that an inability to cast aside any preco ns would be a
dereliction of duty.
ABA Standards for a Fair Trial and Free Press, section 3.5 (final
draft 1974).
—-
Nos. 81-5643-45 United States v. Blanton, et al. 49
There are probably as many ways of handling voir dire
as there are judges and trial attorneys. The original panel
did not attempt to legislate any one rule and I, for
one, would not attempt to, given the chance. Local
practices vary with local history and mores. Beyond that, in-
dividual circumstances vary with the particular judge and
attorneys involved. It is true, on one hand, that trial counsel
may be best able to probe and uncover hidden motives which
may affect the objectivity of a juror. On the other hand, there
always remains the very real risk that the conduct of voir dire
by counsel, especially in a highly publicized trial, may lead
more to harassment than to enlightenment. Most observers
would, I believe, admit that in such a trial the judge must
exercise particularly close control to avoid potential abuse.
The panel opinion never sought to spell out exactly how the
trial judge must exercise that control, however:
[W]e agree with the implication in Johnson that the voir
dire should provide some surface information so the
parties can use their peremptory challenges in an intelli-
gent or purposeful manner.
In the instant case, where there was substantial, even
massive pretrial publicity, the voir dire should have been
extensive enough to allow defendants to learn which
veniremen were most exposed to publicity, from what
sources that exposure came, and who held opinions. That
information would have helped defendants detect
suspected biases and use their peremptory challenges ac-
cordingly, helping to insure an impartial jury. The de-
fendants had no information which would cause them to
suspect biases which either were not strong enough for
disqualification for cause or were not evident enough
for the court to believe disqualification was in order. The
lack of such information was an impairment of the per-
emptory challenge right, and would of itself require re-
We are not unmindful of the trial court's finding that
— A-50 —
50 United States v. Blanton, et all. Nos. 81-5643-45
the “jury selected is as fair and impartial a jury as could
be obtained” and that a trial judge must be accorded
considerable latitude and allowed a range of flexibility in
impaneling a petit jury. Also we note that an appellate
court will not interfere with the jury selection process
absent an abuse of discretion. Blount, 479 F.2d at 651;
United States v. Owens, 415 F.2d 1308, 1315 (6th Cir.
1969), cert. denied, 397 U.S. 997, 90 S.Ct. 1138, 25 L.Ed.
2d 406 (1970); Silverthorne, 400 F.2d at 638. Although
the trial court's finding might be correct, there is no way
on this record to probe that finding since the record is si-
lent on the extent of the veniremen’s exposure to the pre-
trial publicity and the depth and extent of their personal
reactions to the massive publicity. We conclude as a mat-
ter of fairness that the court should have probed into the
effect of the publicity upon the prospective jurors, both
for challenges for cause and for the exercise of peremp-
tory challenges.
700 F.2d at 309-.0. In sum, Judge Gibson’s opinion left avail-
able to the trial court on remand the widest possible range of
choices consistent with its responsibility to insure the defen-
dants a fair and impartial jury.
The en banc opinion rightly observes that it is a “major
problem” to choose a jury without exposing or reexposing
potential jurors to prejudicial information. The opinion indi-
cates, however, that the solution to the problem is “deliber-
ately to avoid” such exposure. En banc opinion at 9-10, ante. As
a practical mater, the opinion implies that the only solution
is to avoid the issue altogether, perhaps in hope that the prob-
lem will go away. Alternatively, it assumes that a trial judge
is powerless to protect the defendant from prejudicial publicity
where the judge “comes on the scene after the media ex-
posure.” Id. (emphasis in original).
There are alternatives to the excessive and unnecessary limi-
tations imposed upon the voir dire below. Trial judges in their
discretion have used several voir dire methods to protect the
— A-51 —
Nos. 81-5643-45 United States v. Blanton, et al. 51
rights of highly publicized defendants such as Governor
Blanton. The most obvious method is individualized voir dire
outside the presence of other jurors, as advised by section 3.5
the ABA Standards. See note 6, supra. This method was used
in the trial of Watergate defendants H. R. Haldeman, John
Erlichman and John Mitchell. United States v. Haldeman, 559
F.2d 31 (D.C. Cir. 1976), cert. denied, 431 U.S. 933 (1977).
Following general questioning of the veniremen in groups,
the trial judge there questioned each juror individually.
Before the publicity was mentioned the venireman was
asked if he believed that any defendant was probably
guilty. He was then asked if he had heard of the case
and, if so, whether anything he had heard or read about
the case stood out in his mind. The next questions asked
whether the venireman had seen the defendants or their
lawyers in the newspapers or on television and whether
he remembered anything in particular about them. Sub-
sequently the court determined which newspapers and
magazines the venireman read and with what degree
of regularity; which television news programs he
watched; whether he had followed the legislative in-
quiries related to Watergate or read any of the books or
other lengthy pieces concerning Watergate, including the
presidential tape transcripts; whether he had followed
Watergate closely or casually; and whether (and how re-
cently) he had discussed the case.
After determining the veniremen’s degree of interest in
and exposure to the case, the court inquired whether he
had formed or expressed an opinion of the guilt or inno-
cence of any defendant.
559 F.2d at 65-66.
The trial judge used a similar method in the trial of Lieu-
tenant Wiliiam Calley on murder charges following the “My
Lai massacre.” The Fifth Circuit described the questioning:
The second reason to credit the court members’ state-
— A-52 —
52 United States vy. Blanton, et al. Nos. 81-5643-45
ments is that they were the product of searching and sen-
sitivity conducted voir dire. The military judge con-
ducted the voir dire in accordance with the recom-
mendations of the American Bar Association Project on
Standards for Criminal Justice, Standards Relating to
Fair Trial and Free Press 3.4(a) (Approved Draft, 1968).
The examination of each court member was held out of
the presence of other prospective jurors. Judge Kennedy,
the military judge, himself inquired into the prospective
court members’ exposure to publicity and ability to render
a fair and impartial verdict. But more importantly, both
defense counsel and the prosecution were allowed almost
unlimited freedom to inquire into the court members’ at-
titudes, perceptions, backgrounds and the nature and ex-
tent of their exposure to pretrial publicity.
Calley v. Callaway, 519 F.2d 184, 208-09 (5th Cir. 1975),
cert. denied, 425 U.S. 911 (1976). See also United States v.
Ehrlichman, 546 F.2d 910 (D.C. Cir.), cert. denied, 429 U.S.
1120 (1977) (burglary of psychiatrist’s files regarding Daniel
Ellsberg, who released the “Pentagon Papers”); People v.
Manson, 61 Cal. App.3d 102, 132 Cal. Rptr. 265 (1976),
cert. denuied, 430 U.S. 986 (1977) (“Manson family” Tate and
LaBianca murder trial); People v. Collins, 43 Mich.App. 259,
204 N.W.2d 290 (1973), lv. to appeal denied, 391 Mich. 798,
cert. denied, 419 U.S. 866 (1974) (John Norman Collins con-
victed of one of several “Ann Arbor” murders ).
Most observers would agree that use of ABA Standards
would more likely produce error-free trials. I sense in my
colleagues, however, a countervailing fear that at best the
panel opinion would both hog-tie the trial judge and unduly
protract the jury selection process and subject the jurors to
embarrassment and harassment.
It is for just such reasons that Rule 24 grants the district
courts such wide latitude in these matters. It leaves to
their sound discretion the duty to forge a reasonable ac-
— A-53 —
Nos. 81-5643-45 United States vy. Blanton, et al. 53
commodation between the interests in obtaining an un-
biased jury, and in doing so as expeditiously as possible.
United States v. Dansker, 537 F.2d 40, 56 (3d Cir. 1976), cert.
denied, 429 U.S. 1038 (1977).
In striking a balance between these competing concerns,
trial judges have used several methods of voir dire. There
is no mandate to interrogate each potential juror privately.
For example, when Gordon Liddy was tried for his role in the
Watergate incident, the D.C. Circuit accepted a voir dire
procedure whereby the judge asked general questions of the
entire jury and individually questioned only those who had
an opinion about the case, or who recalled details of the case.
Only the eight jurors who acknowledged they were exposed
to publicity were individually questioned. United States v.
Liddy, 509 F.2d 428, 436-37 (D.C. Cir. 1974), cert. denied, 420
U.S. 911 (1975).” Accord, United States v. Bryant, 471 F.2d 1040
(D.C. Cir. 1972), cert. denied, 409 U.S. 1112 (1973); United
States v. Mazzei, 390 F.Supp. 1098 (W.D. Penn.), mod. on
other grounds, 521 F.2d 639 (3d Cir.), cert. denied, 423 U.S.
1014 (1975).
United States v. Addonizio, 451 F.2d 49 (3d Cir. 1972),
cert. denied sub nom. Biancone v. United States, 405 U.S. 936
(1972), illustrates that a judge in his discretion may conceive
of several means of questioning the jury that protect the rights
of the defendant while serving the interests of efficiency. In
Addonizio, several city officials were prosecuted for their roles
in a “kickback” scheme on city projects. The trial judge did not
conduct individualized voir dire.
The voir dire examination of prospective jurors was
conducted exclusively by the trial judge. Counsel were
not permitted to participate, although they submitted
7A) the court found that such voir dire is consistent with
the ABA , it is not. The ABA standard requires individual-
ized voir dire of all potential jurors. See note 6, supra.
54
— A-5S4 —
United States v. Blanton, et al. Nos. 81-5643-45
proposed questions, many of which were asked by the
court. The preponderance of the voir dire was devoted
to determining the extent of each prospective juror’s ex-
posure to pretrial publicity and the effect of that expo-
sure upon his ability to judge the defendants impartiali-
ty. Invariably, any prospective juror who indicated he
knew something about the case was questioned further as
to the nature and extent of his exposure, while at the
same time being admonished not to go into the substance
of what he had read. Typically the inquiry centered
around the particular newspapers in which the prospec-
tive juror had seen case-related stories and whether he
had read entire articles or only portions thereof (or, in
some instances, merely headlines). Prospective jurors
were then questioned at some length as to whether they
had formed any opinion as to the guilt or innocence of the
defendants and whether they could judge the defendants
impartially despite some exposure to pretrial publicity.
Prospective jurors who had formed an opinion as to guilt
or innocence of any of the defendants were excused sua
sponte by the court. Prospective jurors who had discussed
the case were similarly excused, regardless of the nature
or extent of the discussion or their own expression of im-
partiality. The court dismissed on its own motion each
prospective juror who indicated extensive exposure to
pretrial publicity, without regard to protestations of im-
partiality.
_ 451 F.2d at 65-67 (emphasis in original).
Another alternative was available here. Blanton submitted a
written questionnaire to be completed by the potential jurors.
This process could serve as an effective way to screen jurors
and to determine which should be questioned further without
asking any questions before the entire venire.
In conclusion, there are many alternatives. Judge Gibson's
opinion does not embrace a per se rule.
— A-55 —
Nos. 81-5643-45 United States v. Blanton, et al. 55
CONCLUSION
The en banc opinion makes the following observations
concerning these defendants:
Governor Blanton ran for and was elected to the high-
est office in Tennessee state government. This fact guar-
anteed that for the term of office to which he was
elected, he would be constantly in the limelight and
every act and word would be subject to comment. The
other two defendants accepted positions in state govern-
ment in close proximity to its head. Under the First
Amendment, neither the defendants nor any court in the
United States could (or should) have prevented the
public media comment which ensued.
En banc op. at 9.°
The issue here is not whether a famous or notorious person
is entitled to a greater measure of deference due to his ex-
alted station in life; he is not. However, a greater degree of
care may nonetheless be necessary to assure the same fair-
ness that is ordinarily enjoyed by any private citizen.
I respectfully suggest that my colleagues in the majority may
not fully appreciate the impact which their opinion is bound to
have upon the jury selection process. In a very real sense, the
majority has reverted to a system of which Blackstone reports
the English had become “heartily tired” by the time of Queen
Anne. 3 Blackstone's Commentaries 360 (1822).° Jurists from
8 See note 4, supra, for comment on First Amendment values.
% Blackstone reports that under “ancient law, the jury was to
come de vicineto, from the neighbourhood of the vill or place where
the cause of action was laid in the declaration.” 3 Blackstone’s Com-
mentaries 359 (1822). The rationale for this selection was
that jurors from the parties’ neighborhood would “know beforehand
the c rs of the parties and witnesses, and therefore better
knew what credit to give to the facts alleged in evidence.” Id. Even
in Blackstone's time, however, it was apparent that jurors with prior
knowledge of the parties often could not set aside their prejudices:
But this convenience [i.e., prior know] ] was overbalanced
by another very natural almost una inconvenience;
— A-56 —
56 United States v. Blanton, et al. Nos. 81-5643-45
Chief Justice John Marshall, to District Judge John J. Sirica,
who have struggled with the problem of pretrial publicity
would be surprised to learn that the law no longer requires
courts to pursue the often tedious task of determining which
prospective jurors may entertain “light impressions which may
be fairly supposed to yield to the testimony that may be
offered,” and which jurors entertain “those strong and deep
impressions which will close the mind against the testimony
which may be offered in opposition to them, which will combat
the testimony, and resist its force .. . .” United States v. Burr,
25 Fed. Cas. 49, 50 (No. 14,692g) (C.C. Va. 1807). Now,
even in the most notorious cases, the parties and the court
alike will be left to assess juror bias solely upon the basis of
silence in the face of general questions, generally put, entirely
without regard to the source or nature of the pretrial publicity
or to the extent of individual exposure or reaction to it. Such
a procedure no doubt will speed up trials, as it did here. The
price, however, in terms of traditional American notions of
fairness, is too high.
that jurors, coming out of the immediate neighbourhood, would
be apt to intermix their prejudices and alities in the trial
of right. And this our law was so sensible of, that it for a long
time has been gradually relinquishing the practice.
dd. at 359-60. In the reign of Geo II, the de vicineto system was
completely abolished, in favor of de corpore comitatus s
BF Se Saves wee selene mae Gis bade of te county at xs
pag Th ef a Bh EE
lig af wy hy AEF ude suc
persons, to present system under which the defense is barred
meget determining whether prospective jurors have prior knowledge
or
= AST
Nos. 81-5643-45 United States v. Blanton, et al. 57
ATTACHMENT A
Defendant Blanton’s requested voir dire questionaire con-
tained the following inquiries relating to pretrial publicity:
40a.Do you read The Nashville Tennessean ( ) Yes
( ) No
40b. Do you subscribe? ( ) Yes ( ) No( ) Sunday
subscription only
40c. How often do you read it? ( ) Once a week (_ )
2-3 times a week ( ) 4 or more times a week (_ )
Every day ( ) Only when something special is re-
ported ( ) Sunday only
4la.Do you read The Nashville Banner? ( ) Yes
( ) No
41b. Do you subscribe? ( ) Yes ( ) No ( )Sunday
subscription only
4lc. How often do you read it? ( ) Once a week ( )
2-3 times a week (_ ) 4 or more times a week (_)
Every day ( ) Only when scare special is
reported (_ ) Sunday only
42. What other Local/State Newspapers do you read?
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58
47.
67.
68.
70.
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72.
73.
74.
— A-58 —
United States v. Blanton, et al. Nos. 81-5643-45
Please list what Magazines and Periodicals you read:
ee ee
“eee ee eee ere eee eee
Have you heard the name Blanton? (_ ) Yes( ) No
Have you heard the name Blanton in connection
with State Government?
( )Yes( ) No
Have you read anything in the newspapers or heard
anything on the radio or television about Ray
Blanton?
( )Yes( ) No
Was what you heard: Good ( ) Bad( )
Do you feel that Ray Blanton is Corrupt?
( )Yes( ) No
Since Ray Blanton has been accused of a crime, do
you believe that he is guilty?
( )Yes( ) No
Has the publicity which Ray Blanton has received
and the resulting public notoriety affected your
opinion of Governor Ray Blanton?
( )Yes( ) No
Can you separate Governor Ray Blanton from his
co-defendants Mr. Hood and Mr. Allen or from other
people about whom you may have read who were
employed by Governor Blanton during his admini-
stration?
( )Yes( ) No
App. 241-42, 243. None of the above questions was asked.
~- AS —
Nos. 81-5643-45 United States v. Blanton, et al. © 59
ATTACHMENT B
Defendant Hood submitted the following proposed questions
for voir dire concerning pretrial publicity:
40.
51.
52.
az
S$ & EERE
Have you talked with anyone who claimed to know
any of the facts supposedly involved in this case?
Do you regularly read The Tennessean?
Do you regularly read The Nashville Banner?
Do you regularly read The Columbia Herald?
Do you regularly read The Clarksville Leaf Chroni-
cle?
Do you regularly watch the daily news on Nashville
television stations?
Which station do you watch with the greatest fre-
quency?
Do you regularly listen to radio newscasts?
Have you read any newspaper articles that referred
to Clyde Edward Hood, Jr.?
In what newspaper did you read these articles?
Did these articles purport to give facts that you now
believe to be related to the matter currently going
to trial?
Do you remember any of the details of these articles?
Have you seen any television newscasts that re-
ferred to Clyde Edward Hood, Jr.?
Did these newscasts purport to give details that you
now believe to be related to the matter currently
going to trial?
Do you now remember what those details were?
Have you heard any radio newscasts that referred to
Clyde Edward Hood, Jr.?
‘ie NN ens
60 United States v. Blanton, et al. Nos. 81-5643-45
56. Did these newscasts purport to give details that you
now believe to be related to the matter currently
going to trial?
App. 641-42. None of the above questions was asked.
ATTACHMENT C
Defendant Allen submitted the following proposed ques-
tions for voir dire concerning pretrial publicity:
14. Have you received any knowledge or information
about the case by way of the newspapers, radio, tele-
vision, talking with acquaintances, or otherwise?
15. Have you received any knowledge or information
about any other criminal case involving State officials,
employees, or members of the family of any defendant, by
way of newspapers, radio, television, talking with ac-
quaintances, or otherwise?
Neither of the above questions was asked.
— A-61 —
Nos. 81-5643-45 United States v. Blanton, et al. 61
Kertn, Circuit Judge, dissenting. I am delighted to join in
Judge Engel’s excellent, thorough and comprehensive opinion.
I am, however, compelled to write separately, because as a
member of the original panel in this case, I am totally con-
vinced that we were correct in reaching the conclusion that the
defendants were denied a fair and impartial trial, as guaran-
teed them by the Sixth Amendment of the United States
Constitution. This denial, in my judgment, was based on the
inadequate voir dire examination.
This case is a direct appeal from a federal criminal trial.
We have a duty as an appellate court to exercise supervisory
authority over the conduct of such trials. If this case involved
habeas corpus review of a state court conviction, we could
only overturn the conviction if the error rose to the level of
constitutional dimensions. However, in this case, our scope
of review is not so limited. It is broad, it should be broad.
We have an obligation and indeed a duty to ensure that federal
criminal trials are fairly conducted. Judge Gibson’s' superb
opinion for the panel was faithful to this duty.
Words fail to do justice to the amount of publicity this case
has received — pre-and post-judgment. At issue in this case is
the alleged conduct of a former governor, the governor's
campaign manager and a former special assistant to the gov-
ernor. A federal indictment of a former governor is by itself
an extraordinarily newsworthy item. This is particularly true
because the alleged federal criminal violations occurred during
the governorship. Moreover, defendant Leonard Ray Blanton
was no ordinary governor. His successor, Governor Lamar
Alexander, was sworn in several days ahead of schedule, al-
legedly to prevent Governor Blanton from pardoning or com-
muting the sentences of numerous state prisoners. The al-
leged corruption of the Blanton administration has been and
‘J Gibson formerly a U.S. District Judge and also Chief
Judge Mf the Eighth Circuit .
— A-62 —
62 United States v. Blanton, et all. Nos. 81-5643-45
will be the subject of bouks, articles and historical research,
and perhaps a movie.
We have no control over the verdict of public opinion or
the verdict of history. This case, however, concerns some-
thing that is more important and fundamental — a man’s
liberty and his right to a fair trial. Under our system of
justice, everyone, including an allegedly corrupt ex-governor,
is entitled to a fair trial before a fair and impartial jury of
his peers — no more and no less. The record in this case
as to voir dire, contains none of the assurances which would
guarantee that the jury was fair and impartial. The trial judge
did not ask the prospective jury panel what they had heard
about the case, the defendants or the source of such infor-
mation. The judge did not ask the venireman whether they
had formed an opinion about the case nor did he probe
the nature and extent of that opinion. The trial judge simply
asked the prospective jurors whether they could put aside
any opinion or prejudice they may have, an
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