Respondents Brief — Mu'Min v. Virginia

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QUESTION PRESENTED

IN A CASE WHERE THE DEFENDANT HAS ABAN-

DONED ANY CLAIM THAT A CHANGE OF VENUE

WAS REQUIRED DUE TO PRETRIAL PUBLICITY, AND

WHERE NO JUROR HAD FORMED ANY OPINION

ABOUT THE CASE, DOES THE CONSTITUTION MAN-

DATE THAT, WHEN ASSESSING JUROR CREDIBILITY

ON THE ISSUE OF IMPARTIALITY, A STATE TRIAL

JUDGE MUST HAVE HEARD EACH JUROR’S ARTICU-

LATION OF THE CONTENT OF ANY PUBLICITY TO

WHICH THE JUROR HAD BEEN EXPOSED?

TABLE OF CONTENTS

Page

STATEMENT OF THE CAS®......-00ce0enn0eunneee 1

The Crime .......0c0ecse0088000 60 1

Pretrial Publicity ........00cesseeesuuu eee 3

The Voig Die ......000s+s000800en une eene 4

1. Pretrial Motions Relating to Jury Selection... 4

2. Group Voir Dive ........<.s0seeeneeneeeee 7

3. Vole Dise In Panels .....00++0s000s00e ee 9

SUMMARY OF ARGUMENT. ..............ceceeee- 13

ARGUMENT:

THERE IS NO CONSTITUTIONAL RIGHT TO

“CONTENT” QUESTIONS DURING VOIR DIRE

IN A CRIMINAL CASE GENERALLY, OR IN A

CAPITAL CASE SPECIFICALLY

The Conduct Of Voir Dire Is Left To The Dis-

cretion Of The Trial Jedies. .......s:s005eenee

The Constitution Does Not Provide A Right To

Ask “Content” Questions

The Constitution Does Not Require That “Con-

tent” Questions Be Asked During Voir Dire In

A Capital Case

eeeeseaens een esa ese ease aeanaeeee es ee ses oe

1. Insofar As Mu’Min’s Claim Is Founded

Upon The Eighth Amendment, It Is Not

Properly Before The Court...............

2. Mu’Min’s Reliance Upon Turner v. Murray

Is Misplaced

eeeoecoeooev se Ceoeseseseeveee sae 2]. ee

Sound Reasons Militate Against Requiring

“Content” Questions

oe ev ee eee eweeeeeeeeeeeeeee

The Trial Court Did Not Abuse Its Discretion

In Impanelling Mu’Min’s Jury

UIE ccs ccccccrenccrcssscesseccssecs:

iil

— Continued

TABLE OF CONTENTS Page

The Jury Selection Process Was Thorough

Ecc gawictveacncesecseccccses

There Is No Reason To Doubt The Trial

Court’s Findings.......---:++sssrrrrrr 41

TABLE OF CITATIONS

Page

Cases

Beck v. Washington, 369 U.S. 541 (1962)........... 25, 26

Cardinale v. Louisiana, 394 U.S. 437 (1969) ........... 26

Commonwealth v. Burden, 448 N.E.2d 387

PE Was ieddkceticcenevseate eee et owl 22

Commonwealth v. Dolhancryk, 417 A.2d 246, 248

NY Ws Ss Re ie xed sv ncikawasagetticatic<: 22

Connors v. United States, 158 U.S. 408 (1895)......... 15

Dennis v. United States, 339 U.S. 162 (1949)...20, 22, 23

Estes v. Texas, 381 U.S. 532 (1965)................ 22, 43

Francis v. Franklin, 471 U.S. 307 (1985) .............. 20

Ham v. South Carolina, 409 U.S. 524 (1973)....... passim

Hopt v. People, 120 U.S. 430 (1887) .................. 22

Irvin v. Dowd, 366 U.S. 717 (1961)............ 17, 18, 36

Kentucky v. Stincer, 482 U.S. 730 (1987).............. 26

Morford v. United States, 339 U.S. 258 (1950)...... 22, 23

Mu'Min v. Commonwealth, 239 Va. 433, 389 S.E.2d

| I TEP EAT tae fy. 65 2, 3, 22

Murphy v. Florida, 421 U.S. 794 (1975)........ 19, 22, 43

Nebraska Press Association v. Stuart, 427 U.S. 539

CFT a ie-5 ven ehdupstevccenenbcubideisns cle 43

Patton v. Yount, 467 U.S. 1025 (1984) ............ passim

Pennsylvania v. Finley, 481 U.S. 551 (1987) ........... 25

People v. Williams, 29 Cal.3d 392, 629 P.2d 869

(1981)

TABLE OF CITATIONS - Continued

Page

Reynolds v. United States, 98 U.S. 145 (1879) ...... 16, 17

Richardson v. Marsh, 481 U.S. 200 (1987)........--. 20, 21

Rideau v. Louisiana, 373 U.S. 723 (1963)....... 21, 22, 43

Ristaino v. Ross, 424 U.S. 589 (1976) ...........+: passim

Rosales-Lopez v. United States, 451 U.S. 182 (1981) .... 16

Ross v. Oklahoma, 487 U.S. 81 (1988)............+-5-- 37

Sheppard v. Maxwell, 384 U.S. 333 (1966).......... 22, 43

Silverthorne v. United States, 400 F.2d 627 (9th Cir.

1968), cert. denied, 400 U.S. 1022 (1971)............ 22

State v. Lucas, 329 S.E.2d 63 (S.C. 1985), cert. denied,

ee a ded een aenbes eens 22

Taylor v. Illinois, 484 Re eer re 26, 27

Turner v. Commonwealth, 234 Va. 543, 364 S.E.2d

483, cert. denied, 486 U.S. 1017 (88). .28, 29, 30, 31, 32

Turner v. Murray, 476 U.S. 28 (1986)........-. 16, 28, 44

United States v. Burr, 25 Fed. Cas. No. 14, 693 (Text

of pro.), p. 58 (C.C. Va. 1807)......-..-0-e serene es 25

United States v. Dellinger, 472 F.2d 340 (7th Cir.

1972), cert. denied, 410 U.S. 970 (1973)..........--. 21

United States v. Davis, 583 F.2d 190 (Sth Cir. 1978).... 22

United States v. Giese, 597 F.2d 1170 (9th Cir.), cert.

dented, 444 US. 979 (ISTS) oc cc cccccccccccvccsens 22

TABLE OF CITATIONS - Continued

Page

United States v. Haldeman, 559 F.2d 31 (D.C. Cir.

1976), cert. denied, Erlichmann v. United States,

a rs oa a Cab vides os dea 21

United States v. Montgomery, 772 F.2d 773 (11th Cir.

EN Ral een a ee SO ee 21

United States v. Polizzi, 500 F.2d 856 (9th Cir. 1974),

cont. Gentes, GID US. TiZ1 COSTS)... onc cecccccccccs 22

United States v. Poludniak, 657 F.2d 948 (8th Cir.

1981), cert. denied, sub nom., Weigand v. United

ely See GPU WP QUID onc cdvacsceccacscceces 21

United States v. Scarfo, 850 F.2d 1015 (3rd Cir.

1988), cert. denied, 488 U.S. 910 (1988)............. 20

Wainwright v. Witt, 469 U.S. 412 (1985)....... 16, 17, 27

FEDERAL STATUTES

Sy ees Ue CE oko skh A wd dade ot 6b iwieedeesewsues 16

STATE STATUTES

Ind. Code Ann. § 35-37-1-5 (Burns 1985 and Supp.

ea ea a Tae cae Where eR ah re SN 22

Neb. Rev. Stat. §§ 25-1636 and 29-2006 (1989)....... 22

Okla Stat. Ann. Tit. 22, § 662 (West 1969 and Supp.

ist akeeh Wek aia ene Gk eke a ce osx + onc 22

Tex. Crim. Proc. Code Ann. § 35-16 (Vernon 1989

RE I aes rel ince lca eden ecbakdiede cc 22

Wyo. Stat. § 7-11-106 (1987 and 1990 Supp.)......... 22

vii

TABLE OF CITATIONS - Continued

FEDERAL RULES

CIRO OOR BOD 0c cccvcccnssccvccccvcccccesesass

STaTE RULES

Utah R. Crim. Proc. 18 (1990).....---+see ee eee reese 22

Rule 5:39, Rules of the Supreme Court of Virginia .... 27

OTHER AUTHORITIES

a iiiliaal

ipes, On Trial, The Length of Civil and Crimina

ol vials, pp. 42-45 (National Center for State

Courts, 1968). .....ccccccccccsccccccccccccccccenes

No. 96-5193

In The

Supreme Court of the United States

October Term, 1990 |

DAWUD MAJID MU’MIN,

Petitioner,

COMMONWEALTH OF VIRGINIA,

Respondent.

—

On Writ Of Certiorari To ‘he

Supreme Court of Virginia

BRIEF FOR RESPONDENT

STATEMENT OF THE CASE

The Crime

Dawud Majid Mu’Min, the petitioner, was an inmate

at the Virginia Department of Corrections’ Haymarket

Correctional Unit serving a 48-year sentence for a 1973

first degree murder conviction. On the morning of Sep-

tember 22, 1988, Mu’Min and five other inmates were

transported to the Virginia Department of Transporta-

tion’s (“VDOT”) Dale City Headquarters in Prince Will-

iam County, Virginia. They were assigned to a work

detail supervised by a VDOT employee. Mu’Min v. Com-

monwealth, 239 Va. 433, 437, 389 S.E.2d 886, 889 (1990).

Z hes Min used grinding equipment at the VDOT shop

sharpen a metal spike, to which he attached a wooden

handle. At the lunch break he escaped over a perimeter

fence and walked a mile to Ashdale Plaza sho ing c

ter. 239 Va. at 437-438, 389 S.E.2d at 890. —

Pie: Min entered Dale City Floors, a retail carpet and

g Store, confronted the owner, Gladys Nopwask

and knocked her to the floor. He then savagely stathed

her with the sharp instrument he had fashioned that

morning. Mu’Min took all of the money, approximate]

four dollars, from the desk drawer near the victim’s bod 4

He left the store but went back to wipe his finger ed

from everything that he had touched. Mu’Min th

returned to his prison work crew at the highway de +

ment. 239 Va. at 438, 389 S.E.2d at 890. ——

A few minutes after the attack, a customer discov-

ered the victim’s body on the floor in the back of th

store. The victim’s blouse and bra had been pushed :

expose her breasts. Her clothes had been removed fr :

her waist down. 239 Va. at 438, 389 S.E 2d at 890 in.

wasky’s face was so badly beaten and bloodied that she

was unrecognizable. (Tr. 4/17/89, p. 264).1 ;

The rescue squad arrived minutes later, but efforts to

poo her were unsuccessful. (Tr. 4/17/89, pp. 265, 272)

ee medical equipment detected an “electrical

ythm,” indicating her heart was beating, no blood

' “Tr.” refers to the origi

Original transcri Sel 3 es

Court of Prince William ta pt of trial in the Circuit

remained for her heart to pump. 239 Va. at 438, 389 S.E.2d

at 890.

An autopsy revealed that the victim’s face, neck, chest

and left arm had been stabbed or cut sixteen times with a

sharp instrument. Two of these wounds - one on the lower

neck and the other on the left upper chest - were fatal. The

victim had also suffered numerous “blunt-force trauma inju-

ries” consistent with blows from a fist, causing a laceration

on her forehead and bruises over a large portion of her face.

239 Va. at 438-439, 389 S.E.2d at 890.

Mu’Min’s statement, admitting that he had killed

Nopwasky but claiming he had done so in self defense,

was admitted at trial.

Pretrial Publicity

Approximately three months before trial, Mu’Min sub-

mitted to the trial court 47 newspaper articles relating to the

murder in support of a motion for a change of venue. These

articles had been published between September 26, 1988, and

January 14, 1989. More than half of them had appeared in the

Potomac News, and the remainder in the Washington Post

and several other local newspapers. The Potomac News is a

daily paper with a circulation of only 25,000 in densely

populated Prince William County.

One article stated that Mu’Min had been indicted in

the Nopwasky murder and that he was accused of beat-

ing a fellow inmate in mid-December 1988. (App. 921).?

2 “App.” refers to the appendix filed in the Supreme Court

of Virginia which is a part of the record before this Court.

Several focused on the alleged laxity in the supervision of

work gangs (App. 922, 930-931) and a post-offense ban

prisoners working in urban work crews. (App. 923.924),

The articles included descriptions of the crime and inves-

tigation and indicated that Mu’Min had confessed to

killing Nopwasky. The articles also revealed that at the

time of the Nopwasky offense, Mu’Min was serving a 48-

year sentence for first degree murder. (App. 925). One

article simpl

x Ply mourned the death of the victim. (App.

On January 30, 1989, the court entertained Mu’ Min’

motion for a change of venue. (J.A. 8).2 The d si

conceded at the hearing that taken individually th e

paper articles had little impact, but saualiad in tos

collectively created a “pervasive feeling of guilt.” (J.A mn

The trial judge deferred ruling on the venue motio i ’

after making an attempt to seat a jury. Mu’Min ape

objection to this procedure. (J.A. 14-15)

nse

d no

The Voir Dire

1. Pretrial Motions Relating To Jury Selection

_ ye April 5, 1989, over six months after the offense,

1 almost three months after the publication of the last

article about the case upon which Mu’Min relies Mu’Min

submitted to the trial judge 64 proposed voir dire mage

tions. (J.A. 2-7). Heal eed

tun: GA, Oe so filed a motion for individual voir

34 ” .

J.A.” refers to the Joint Appendix filed in this Court.

On April 14, 1989, the court conducted a hearing on

Mu’Min’s request for individual voir dire. The court

denied counsel’s motion on the ground that placing a

prospective juror alone in a courtroom of four attorneys,

a number of witnesses and court personnel would be

overly intimidating. (J.A. 16-17). Instead, the court ruled

that voir dire would begin with questioning the jurors

collectively. (J.A. 17). In order to prevent contamination

of the entire panel by questions on issues of publicity, the

jurors would be broken down into panels of four, and

further, if necessary, into panels of two. (J.A. 17).

With regard to Mu’Min’s proposed voir dire ques-

tions, the court stated its intent to ask the model voir dire

questions from the Virginia Judges’ Handbook. (J.A. 17).

The court then reviewed and approved 24 of the 64

proposed questions, and ruled that the remaining ques-

tions were cumulative of the handbook questions. (J.A.

17-41). During the course of the review, several of

Mu’Min’s questions were allowed by the court over the

Commonwealth’s objection, and on two occasions the

court stated the question would be framed in terms more

favorable to the defense than requested by Mu’Min. (J.A.

17, 19, 25, 27-30).

The court refused to allow the following proposed

questions:

32. What have you seen, read or heard about

this case?

33. From whom or what did you get this infor-

mation?

34. When and where did you get this informa-

tion?

38. What did you discuss?

39. Have y

39. e you formed an opini

you ion or conclusi

about this case? sa

40. What is it?

41. 2 e

1. Has anyone expressed any opinion about

this case to you?

42. Who? What? When? Where?4

The court found that all of these matters would be

covered by the model questions, including, “Have any of

you acquired any information about the alleged eee

or the accused from the news media or other sources an :

if 80, would that information affect your impartialit

this caer,” and “Have you discussed this case with A

one? U.A. 31-32). The judge specifically noted that if ni

prospective juror indicated he had discussed the “

wong an appropriate follow-up question would be,

“Would what you discussed in any way affect yor 7

impartiality in this case?” (J.A. 32). During voir dire, he

judge asked virtually the same question as refused an

tion 39: “Have any of you expressed or formed an : in-

ion of the innocence or guilt of the accused?” og

4 —

oe hoe oR ss page and 37 were in fact permitted by the

3© UA. 31-32), although Mu’Min lists th

> , oO ‘ em ’

those denied. (Def. Br. at 10). These questions were:

31. Hav ,

— you acquired any information about this

Cas , , » ,

e from the newspapers, television, conversa-

tions, Or any other source?

Have you discussed this case with anyone?

36. With whom?

37. When and where?

there any person who has already formed an opinion as

to the innocence or guilt of the accused?” (J.A. 48).

2. Group Voir Dire

Geven months after the offense was committed,

Mu’Min’s trial began with jury selection on April 17,

1989. The judge summoned twenty-six jurors into the

courtroom. Speaking to the entire twenty-six, he

described the case for them and began asking model voir

dire questions from the Virginia Judges’ Handbook. The

court’s group questions spanned 21 transcript pages, and

were followed by two pages of questioning by the pros

ecution and 16 pages of questioning, from the defense

(A. 42-54, 54-55, 56-66).

The judge asked, among other things, “Are you sensi-

ble to any bias or prejudice against either the Common-

wealth or the accused?” (J.A. 44). No juror indicated any

bias or prejudice. The panel was asked whether anyone

had acquired any information about the alleged offense

or the accused from the news media or from any other

source. (J.A. 46). Sixteen jurors replied that they had. (J.A

46-47).

Through a series of four questions the jurors were

then specifically asked whether any information they had

read, seen, heard or acquired from any source would

affect their impartiality. (J.A. 48). Only one juror, Dennis

Syphrett, responded that he was affected by pretrial

information. (J.A. 48). As voir dire continued, the judge

asked whether any of the jurors had formed an opinion as

to the innocence or guilt of the accused, but none had

(|.A. 48). The jurors were then queried whether, in light of

any prior knowledge about the case, any could not enter

the jury box with an open mind and wait until the entire

case was presented before reaching a fixed opinion or

conclusion as to the guilt or innocence of the accused

Only juror Syphrett indicated he did not feel that “

could sit with an open mind because he had alread

formed an opinion about the case. Syphrett was dis.

missed sua sponte by the trial judge. (J.A. 48-49).

After Syphrett was excused, a replacement juror was

chosen and was asked the same questions previousl

posed to the entire panel. (J.A. 49-52). Replacement “aie

eu indicated that he was not sensible of any ven or

prejudice and that the only information he had received

about the case came from a brief conversation from which

ne learned only that a murder trial was scheduled. Ts

said this information would not affect his niaiaiiin

J.A. 51-52). Tsou had formed no opinion as to guilt sl

innocence, and felt he could hear th i

mind. (J.A. 52). ae

vinally, the judge twice asked the twenty-six panel

members if anyone knew of any reason whatever why he

o she should not sit as a juror. The group indicated that

it had no such knowledge. (J.A. 52, 54).

Ane questioning of the entire panel (J.A. 42-66)

Mu’Min moved to strike for cause any member of the

panel who indicated prior knowledge of the case. The

motion was denied by the court “at this time “OA

68-69). The court ruled that subsequent questioning tn

panels weuns provide the opportunity to further explore

the impartiality of the jurors. (J.A. 69).

At the conclusion of group voir dire, the court also

denied Mu’Min’s request for a change of venue, and the

court expressly noted the lack of impact which the pre-

trial publicity had had on the prospective jurors. (J.A. 71).

Mu’Min subsequently abandoned his venue claim on

direct appeal to the Supreme Court of Virginia.

3. Voir Dire In Panels

The court then conducted further voir dire of the

prospective jurors in panels of four. Panel voir dire spans

106 transcript pages.

On request of the defense, the court allowed ques-

tions that the defense had forgotten to ask of the entire

group. (App. 272-273). On at least seven separate OcCa-

sions during panel voir dire, the judge assisted the

defense with follow-up questions that expanded the

scope of the question asked by the defense, required a

more specific response from the panel, clarified a point

for the defense, or covered a topic the defense had cov-

ered with one panel but neglected to cover with another.

(J.A. 72-73, 74-75, 83, 87-88, 90; App. 275-277, 280-281,

287, 291-294, 328).

Defense counsel asked the first panel of four jurors

whether they had discussed the case with anyone. Three

of the four jurors said that they had done so with their

wives when reading the newspaper. (J.A. 72). None of the

four had formed an opinion based on what they had

discussed, heard or read, and all of them indicated that

they were neither biased nor prejudiced against the

defendant. (J.A. 72). All four swore that they could enter

the jury box with an open mind and wait until the entire

case was presented before reaching a conclusion as to

guilt or innocence. (J.A. 72-73).

Out of the second panel of four jurors, one juror, Ms

Walters, acknowledged a discussion with her supervisor

who lived on the victim’s block. (J.A. 73). The court sod

defense counsel both asked questions which elicited from

Ms. Walters the content of discussion, and she explained

that her supervisor had expressed no opinion aes th

case, but simply had said that she had known the a

and was very sorry this had happened. (J.A. 73, 75). This

discussion did not cause her to have an oplaten on th

matter nor create any bias or prejudice. (J.A. 73-75) She

indicated that she could perform jury duty with an e a

mind, wait for all the evidence before reaching a .

sion as to guilt or innocence, and reach a fair and impar-

tial verdict based on the law and the evidence cA

74-75). The remaining panelists indicated that they had

reached no opinion in the case based upon what they had

read in the newspapers, and were sensible of no ses )

prejudice as a result of what they had read. (J.A 79).

. Out of the third panel of four jurors, only Nanci

aines had discussed the case with anyone, and that

person had not stated an opinion. (J.A. 76). This discus-

sion had not caused Haines to form an Opinion, nor did it

prejudice her. (J.A. 76-79). However, Haines we sone

for cause on defense motion that she was “not as frank as

She could be” concerning the effect of her feelings toward

members of the Islamic Faith and toward defense cou

sel. (J.A. 81). While the three remaining members of this

panel had read something about the case, the had

reached no opinion and were not biased oe Hai of

what they had read. (J.A. 79). The panel members indi-

cated that they could render an irnpartial verdict based

on the law and the evidence. (J.A. 80).

No member of the fourth panel of four prospective

jurors had discussed the case with anyone. (J.A. 82). One

member, Mr. Suter, had seen headlines about the case, but

was not biased or prejudiced as a result of the headlines.

(J.A. 82). No juror had been exposed to an opinion about

the case. (J.A. 83). All four said they could decide the

issues with an open mind and wait until the entire case

was presented before reaching an opinion. (J.A. 83-84).

No member of the fifth panel of four jurors had

discussed the case with anyone, formed an opinion about

the case, or been exposed to newspaper accounts creating

any bias or prejudice on their part. (J.A. 85). All of them

were satisfied that they could enter the jury box with

open minds and wait for the presentation of the entire

case before reaching a conclusion as to innocence or guilt.

(J.A. 85).

Out of the sixth panel of four jurors, Martha Felmley

and Barney Rish said they had discussed the case. (J.A.

86). Felmley was removed from the jury panel because of

her inability to impose a death sentence. (J.A. 86-87). Rish

said he had discussed the case “just casually.” (J.A. 86).

He stated that he had not formed an opinion based on his

casual discussions. Neither Rish nor the two remaining

jurors was aware of any bias or prejudice about the case.

(J.A. 87). Rish and the two. remaining jurors indicated

that, regardless of any prior knowledge, they could enter

the jury box with open minds and wait until the entire

case was presented before reaching a conclusion as to

guilt or innocence. (J.A. 88).

Voir dire continued with a seventh panel consisting

of the final two jurors from the original twenty-six sum-

moned by the trial judge. One juror, Donna Deiotte, a

newspaper reporter, stated that she had discussed the

case with someone who had expressed an opinion. Nei-

ther she nor the other juror had formed an opinion nor

developed any bias as a result of having read newspaper

articles or engaged in discussions. (J.A. 88, 89). However,

Deiotte equivocated as to whether she could enter the

jury box with an open mind and wait until the case was

presented before reaching a decision. Consequently, she

was removed from the jury panel sua sponte by the trial

judge. (J.A. 90; App. 329).

The trial judge summoned three additional jurors

and all were asked the same questions the judge had

asked the original jury panel. One of the three jurors,

Fred Farnham, was removed for cause based upon his

statement that upon a finding of first-degree murder, he

could not consider a penalty less than the death penalty.

(App. 339-341). The remaining two had read newspaper

articles about the case but had not discussed the matter

with anyone. Neither was sensible of any bias or preju-

dice as a result of having read the newspaper articles.

Both indicated that they could keep an open mind and

wait until the entire case was presented before reaching a

conclusion as to guilt or innocence. (J.A. 90).

The final prospective juror, Malcolm Friend, was

asked the same questions the judge had asked the origi-

nal panel. He stated he had not acquired any information

about the case from any source, formed or expressed »

opinion as to Mu’Min’s guilt or innocence, oF heard ~

case discussed in any manner. He knew of no apes w y

he could not sit and render a fair and impartial decision

based upon the law and the evidence. (J.A. 93-94; App.

364-380).

At this point the judge declared that all twenty-six

prospective jurors stood indifferent in the case, grey

remaining replacement jurors were excused. (App.

380-381). The panel members were returned to the court-

room where six each were peremptorily struck by both

the Commonwealth and Mu’Min. The remaining fourteen

were sworn and seated. The first 12 sat as the pommel

ing jury, and the two alternates took no part in either at

determination of Mu’Min’s guilt or innocence, or his sen

tence. (App. 849-850; Tr. 4/24/89, pp. 97-98).

—_>--

SUMMARY OF ARGUMENT

The conduct of voir dire, including the number and

scope of questions to be asked, is a inaties. Wie the

sound discretion of the trial court. That discretion is

reviewable only for manifest error, and there is no such

error in this case.

The Constitution does not require thet prospective

jurors be asked the content of pretrial publicity to gp

they have been exposed. The relevant question a my

what they remember about such publicity, but whet .

they have formed such fixed opinions that they scr

try the case impartially. Only in very narrow circu

stances, where potential prejudices, such as racial bias or

suspicion of disloyalty to the United States, are inextrica-

bly bound up in the facts of the particular case in such a

way as to intensify those potential prejudices, has this

Court held that the Constitution requires that a defendant

be allowed to inquire on voir dire into specific areas of

possible prejudice. Mu’Min’s case clearly does not pre-

sent such a narrow circumstance.

Moreover, even in the limited instances when this

Court has held that the opportunity for specific voir dire

inquiry is guaranteed by the Constitution, those rulings

have mandated only questions pertaining directly to the

prospective juror’s assessment of his or her impartiality

when confronted with the allegedly prejudicial issue, not

the juror’s underlying factual knowledge related to the

issue. The inquiry Mu’Min seeks is thus far more exten-

sive and intrusive than any this Court has previously

required under the Constitution.

The fact that this is a capital case does not constitute

a special circumstance justifying the rule Mu’Min advo-

cates. Mu’Min cannot rely on the Eighth Amendment

because he did not preserve this argument in the

Supreme Court of Virginia. Moreover, the considerations

dictating that a capital murder defendant be allowed to

inquire on voir dire about possible racial prejudice do not

apply to inquiries about possible bias resulting merely

from exposure to pretrial publicity. And the type of

inquiry Mu’Min seeks would be far more intrusive than

the inquiry into racial prejudice that this Court has

required in interracial capital cases.

Voir dire questions of the type Mu’Min advocates

also may result in adverse consequences for the defense.

In addition, they would substantially change the a

of trial practice in jurisdictions which do not eatin

virtually mandate individual voir dire for the firs ;

and exacerbate the existing problems of delay, conges

tion, and expense which plague criminal courts.

Finally, the voir dire in Mu’Min’s case was sc Na

carefully and ever aandedly. Although eight of the *

jurors had read or heard something about the case, . |

had formed any opinion about it, much less an gn

which could not be set aside in scooreance win the

instructions of the court. In sum, Mu’Min was tried by a

fair and impartial jury, and that is all the Constitution

requires.

——

ARGUMENT

RIGHT TO “CON-

RE IS NO CONSTITUTIONAL

TENT” QUESTIONS DURING VOIR DIRE gor

INAL CASE GENERALLY, OR IN A CAP

SPECIFICALLY.

A. The Conduct Of Voir Dire Is Left To The Discretion

Of The Trial Judge.

In Ristaino v. Ross, 424 U.S. 589, 594 (1976), this Count

observed that “[t]he Constitution does not sways —

a defendant to have questions posed during voir a

specifically directed to matters that conceivably na

prejudice veniremen against him.” In Connors v. Uni |

States, 158 U.S. 408, 413 (1895), the Court noted that voir

dire “is conducted under the supervision of the onsite

and a great deal must, of necessity, be left to its soun

discretion.” Even where this Court has recognized a con-

Stitutional requirement that a specific voir dire inquiry

aust be allowed when requested, the trial court retains

discretion over how the inquiry is conducted and what

conclusions are reached. See, e.g., Turner v. M

. » OLn. . Murray, 476

U.S. 28, 37 (1986). ?

In Reynolds v. United States, 98 U.S. 145, 156-157

(1879), this Court held that a trial court’s findings of

impartiality from observations of jurors were entitled to

great weight. Accord Patton v. Yount, 467 U.S. 1025, 1038

(1984); Wainwright v. Witt, 469 U.S. 412, 426 (1985):

Rosales-Lopez v. United States, 451 U.S. 182, 188 (1981). As

this Court noted in Wainwright v. Witt, “the question

whether a venireman is biased has traditionally been

determined through voir dire culminating in a finding by

the trial judge concerning the venireman’s state of mind.”

469 U.S. at 428. The question of partiality of an individual

juror is a two-fo'd question of historical fact: “Did a juror

swear that he could set aside any opinion he might hold

and decide the case on the evidence, and should the

juror’s protestation of impartiality have been believed.”

Patton, 467 U.S. at 1036. Because “such a finding is based

upon determinations of demeanor and credibility that are

peculiarly within a trial judge’s province,” the trial

judge’s determination of such matters is entitled to defer-

ence on direct appeal. Witt, 469 U.S. at 428.5

| Despite what might be shown by the printed record

in a case, “there will be situations where the trial judge is

> This is why such findings are also entitled to a presump-

tion of correctness in habeas corpus cases d

§ 2254(d). Witt, 469 U.S. at 429. soy

left {after voir dire] with the definite impression that a

prospective juror would be unable to faithfully and

impartially apply the law.” Witt, 469 U.S. at 425-26. The

converse also is true: there will be situations where the

trial judge is left after voir dire with the definite impres-

sion that a prospective juror would be able to faithfully

and impartially apply the law.

“This is why deference must be paid to the trial judge

who sees and hears the juror,” Witt, 469 U.S. at 426, and

this is why a trial judge’s conclusions as to juror bias may

be overturned only for “manifest error.” Irvin v. Dowd,

366 U.S. 717, 723 (1961).°

This exacting standard applies also to capital cases

where, “as elsewhere, the quest is for jurors who will

conscientiously apply the law and find the facts. That is

what an ‘impartial’ jury consists of... .” Witt, 469 U.S. at

423. Nor does the standard change just because “perva-

sive media publicity” is claimed, which this Court has

recognized “now arises so frequently in the trial of sensa-

tional criminal cases.” Patton, 467 U.S. at 1031.

The findings of the trial judge here, no less than

those made by the trial judges in Witt and Patton, should

thus be upheld by this Court, absent a showing by the

defendant of manifest error. See Reynolds, 98 U.S. at 157

(burden on defendant seeking exclusion of juror to

6 Irvin was a change of venue case, but the same standard

as to impartiality applies to questions of whether jurors are

subject to exclusion for cause because of a lack of impartiality.

Witt, 469 U.S. at 429.

demonstrate partiality). There was no manifest error in

this case.

B. The Constitution Does Not Provi i

“Content” Questions. oe a

7 Even where there has been substantial pretrial pub-

licity in a Case, jurors are not required to be wholly

ignorant of the facts and issues presented. Irvin, 366 U.S

at 722. “The relevant question is not whether the communit |

remembered the case, but whether the jurors . . . had te

fixed opinions that they could not judge impartially the

guilt of the defendant.” Patton, 467 U.S. at 1035 (emphasis

added). See also Irvin, 366 U.S. at 723.

in Patton, this rule was applied in the context of a

retrial after the defendant's conviction had been reversed

by the Supreme Court of Pennsylvania for erroneous

admission of his confession. The publicity prior to the

second trial had “revealed [the defendant’s] prior convic-

tion for murder, his confession, and his prior plea of

temporary insanity, information not admitted into evi-

dence at [re]trial.” Patton, 467 U.S. at 1029. The pretrial

publicity in Patton was thus of far greater potential preju-

dice to the defendant than was the publicity in Mu’Min’s

case. Moreover, eight of the fourteen jurors who tried the

defendant admitted that “at some time they had formed

an opinion as to [the defendant's] guilt.” Patton, 467 U.S

at 1029-1030. None of Mu’Min’s jurors had formed on ,

opinion about the case. If recollection of the case by “dl

community, and hence by the venire, was insufficient to

disqualify the jurors in Patton, it clearly was insufficient

in Mu’Min’s case.

Mu’Min’s argument is founded upon two faulty

unspoken premises: first, that the more pretrial publicity

a juror has read or heard about a case, the more likely he

or she is to be prejudiced against the defendant, and

second, having become thus prejudiced, a prospective

juror will be unwilling or unable to acknowledge his or

her bias. Neither of these premises is sound.

The assumption that exposure to pretrial publicity

automatically affects a juror’s impartiality is not borne

out by experience, even when such publicity reveals a

defendant’s prior criminal record. See, e.g., Murphy v.

Florida, 421 U.S. 794, 800-801 (1975) (four of six jurors

who had prior knowledge of defendant's criminal record

“volunteered their views of its irrelevance, and one sug-

gested that people who have been in trouble before are

too often singled out for suspicion of each new crime

_.. “”). To entertain this assumption is to violate this

Court’s teaching in Murphy:

We must distinguish between mere familiarity

with petitioner or his past and an actual disposi-

tion against him, just as we have in the past

distinguished largely factual publicity from that

which is invidious or inflammatory. [Citations

omitted]. To ignore the real differences in the

potential for prejudice would not advance the

cause of fundamental fairness, but only make

impossible the timely prosecution of persons

who were well known in the community,

whether they be notorious or merely prominent.

421 U.S. at 800, n.4.

In short, the relevant inquiry is not the content of

what prospective jurors have read or heard, but rather

what effect the information had on them. The potential

juror’s impartiality in the face of exposure to publicity

will depend on his or her unique critical thinking skills

and independence of mind. Such qualities may well be

found to a greater extent in people who follow news

accounts more closely and consistently, and thus would

be prepared to recite greater familiarity with pretrial

news accounts. Any direct correlation between a potential

juror’s exposure to pretrial publicity and his or her par-

tiality is thus illusory.

A broad assumption that prospective jurors cannot or

will not acknowledge their publicity-engendered bias

against the defendant is likewise unfounded. Anyone

who hides his bias against a defendant by untruthful

answers on voir dire will also likely concea! the extent of

his knowledge about the case from pretrial publicity. The

inquiry which Mu’Min advocates would be wasted on

such individuals.

Moreover, such basic mistrust of jurors runs counter

to the fundamental belief upon which the constitutional

guerantee of trial by jury is premised, “that juries will

foilow the law, that they will not convict on mere suspi-

cion but will instead require proof beyond a reasonable

doubt,” United States v. Scarfo, 850 F.2d 1015, 1025 (3d Cir.

1988), cert. denied, 488 U.S. 910 (1988), citing Richardson v.

Marsh, 481 U.S. 200, 206 (1987), and the well-founded

belief in “the determination, the sense of responsibility

and the individual integrity by which men judge men.”

Dennis v. United States, 339 U.S. 162, 172 (1949). See also

Francis v. Franklin, 471 U.S. 307, 324 n.9 (1985). Whether

these principles are rooted in absolute truth or in the

need for practical accommodat.ons of competing inter-

ests, see Richardson, 481 U.S. at 211, they militate strongly

against the assumption Mu’Min urges on the Court.

Common experience supports these principles upon

which our system is founded, and not the cynical

assumption which Mu’Min would have this Court make.

Juror Syphrett indicated he did not feel that he could sit

with an open mind, and was dismissed sua sponte by the

trial judge. (J.A. 48-49). Nothing in the record supports an

assumption that other prospective jurors suppressed or

concealed a similar disability, and the law requires a

presumption of impartiality in the absence of such a

record. Indeed, experience shows that even racial preju-

dice is sometimes disclosed by jurors. See Ristaino, 424

U.S. at 593.

None of this Court’s prior decisions supports

Mu’Min’s position.” In Rideau v. Louisiana, 373 U.S. 723

? The lower federal courts that have addressed the ques-

tion are split on the issue of content questions. While the

Eleventh Circuit does not require such questions at all, United

States v. Montgomery, 772 F.2d 733, 735-736 (11th Cir. 1985),

others have required only a limited inquiry into exposure to

publicity. United States v. Poludniak, 657 F.2d 948, 956 (8th Cir.

1981), cert. denied, sub nom. Weigand v. United States, 455 U.S.

940 (1982); United States v. Haldeman, 559 F.2d 31, 65-66 (D.C.

Cir. 1976), cert. denied, Erlichmann v. United States, 431 U.S. 933

(1977). The Seventh Circuit has held that questioning must be

specific enough to alert the jurors to the problem of pretrial

publicity in evaluating their own fitness to serve. United States

v. Dellinger, 472 F.2d 340, 375-376 (7th Cir. 1972), cert. denied,

410 U.S. 970 (1973). The Fifth and Ninth Circuits have required

(Continued on following page)

(1963), Estes v. Texas, 381 U.S. 532 (1965), and Sheppard v.

Maxwell, 384 U.S. 333 (1966), this Court presumed prejudice

in the circumstances under which the trials occurred. In

Rideau, a twenty-minute film of the defendant's dramatically

staged confession had been broadcast by television three

times in the community where the crime and trial had

occurred. Sheppard involved extremely inflammatory public-

ity, and both Sheppard and Estes involved trials conducted in

a “circus” atmosphere. See Murphy, 421 U.S. at 799. Nothing

even approaching a “circus” atmosphere prevailed in

Mu’Min’s case and the case was tried with all due solemnity.

This Court has held that there is a constitutional

requirement that particular lines of voir dire inquiry be

permitted only in very limited circumstances. In Dennis v.

United States, 339 U.S. 162 (1950), and Morford v. United

(Continued from previous page)

detailed content questioning. United States v. Davis, 583 F.2d 190,

196 (5th Cir. 1978); Silverthorne v. United States, 400 F.2d 627, 639

(9th Cir. 1968), cert. denied, 400 U.S. 1022 (1971). But see United

States v. Giese, 597 F.2d 1170 (9th Cir.), cert. denied, 444 U.S. 979

(1979); United States v. Polizzi, 500 F.2d 856 (9th Cir. 1974), cert.

denied, 419 US? 1121 (1975).

While most states have not specifically ruled on the issue, three

States in addition to Virginia have expressly rejected a rule requir-

ing content questions. State v. Lucas, 328 S.E.2d 63, 64-65 (S.C.

1985), cert. denied, 472 U.S. 1012 (1985); Commonwealth v. Burden, 448

N.E.2d 387, 393 (Mass.App. 1983); Commonwealth v. Dolhancryk, 417

A.2d 246, 248 (Super. Ct. Pa. 1979). The statutes or rules of court of

several other states apparently would permit a trial court to decline

to ask content questions. See Ind. Code Ann. § 35-37-1-5 (Burns

1985 and Supp. 1990); Neb. Rev. Stat. §§ 25-1636 and 29-2006

(1989); Okla. Stat. Ann. Tit. 22, § 662 (West 1969 and Supp. 1990);

Tex. Crim. Proc. Code Ann. § 35-16 (Vernon 1989 and Supp. 1990);

Utah R. Crim. Proc. 18 (1990); Wyo. Stat. § 7-11-106 (1987 and 1990

Supp.). See also Hopt v. People, 120 U.S. 430 (1887).

States, 339 U.S. 258 (1950), fundamental fairness required

that a Communist and a recordkeeper in the National

Council for American-Soviet Fellowship, Inc., both

accused of failing to comply with compulsory process

from the House Committee on Un-American Activities,

be allowed to question government employees on their

respective jury panels about the potential influence of the

“Loyalty Order” such employees had been forced to take

upon their ability to judge the cases fairly and impar-

tially.

These decisions, however, were highly specific with

reference to both the defendant and the prospective juror.

They turned upon the defendant’s having made a prelim-

inary showing of a direct personal interest on the part of

the juror in avoiding any appearance of disloyalty to the

federal government. This was an interest which might

have influenced jurors not to acquit the defendants of the

crimes with which they were charged. Upon such a show-

ing, Dennis and Morford required that the defense be

allowed to make direct inquiry into feelings of bias.

Clearly, however, éVen these two cases did not come close

to requiring the type of inquiry which Mu’Min seeks.

Likewise in Ham v. South Carolina, 409 U.S. 524 (1973),

this Court recognized a constitutional right to inquire

whether prospective jurors entertained racial prejudice

against Black people in a case where the defendant, a

Black person, maintained that he had been unjustly

accused of an offense in retaliation for his civil rights

work on behalf of Black people. Fundamental fairness

required such a line of questioning because racial issues

“were inextricably bound up with the conduct of the

trial,” and because “Ham’s reputation as a civil rights

activist and the defense he interposed were likely to

intensify any prejudice that individual members of the

jury might harbor.” Ristaino, 424 U.S. at 597. Significantly,

the only questions constitutionally required were ones that

directly addressed the jurors’ attitudes towards the issues.

Questions calling upon them to divulge the content of

their knowledge of civil rights groups, Blacks, or the

defendant in particular were not required.* Ham, 409 U.S.

at 525 n.2 and 527.

Thus, a constitutional right to pursue a specific line

of inquiry on voir dire has been limited to situations

where potentially prejudicial matters, such as racial prej-

udice or suspected disloyalty to the United States, have

been uniquely involved in the facts of the particular case

in such a way as to inflame or “intensify” the jurors’

possible prejudices. By contrast, pretrial publicity exists

in every major criminal case. The jurors examined in this

case were no different from any juror who reads or hears

news accounts in any case, and the news accounts were

not uniquely involved, or “inextricably bound up” in the

facts of Mu’Min’s case in such a way as to inflame or

“intensify” any juror’s possible bias.

The voir dire employed by Chief Justice Marshall to

assure a fair trial to Aaron Burr in the’face of extensive

publicity, which Mu’Min acknowledges this Court has

cited with approval many times, included no general

questions concerning what publicity prospective jurors

had read, but only “Have you made up your mind on the

8 For many reasons, racial prejudice in jurors is a matter of

far greater concern than bias engendered from news accounts.

(See Part C2 below).

case, or on the guilt of Colonel Burr, from the statements

you have seen in the papers or otherwise?” and “Have

you formed and expressed (or delivered) an opinion on

the guilt or innocence of Colonel Burr. .. . ?” United States

v. Burr, 25 Fed. Cas. No. 14, 693 (Text of proceedings), p.

58 (C.C. Va. 1807).

After determining that most jurors in Mu’Min’s case

had previously heard of the case, the trial court asked the

jurors whether that information caused them to form an

opinion and whether they could decide the case only on

the evidence. No juror had formed an opinion, and they

all indicated they could render their verdict only on the

evidence presented. Clearly, this voir dire was thorough

enough to permit the court to determine, without regard

to the content of the information, that the jurors were

impartial.? See Beck v. Washington, 369 U.S. 541, 557

(1962); Ristaino, 424 U.S. at 596-97 (specific questioning

only required if circi:mstances of the case strongly sup-

port a need). ;

9 Mu’Min suggests (Pet. Br. at 30, n.25) that greater lati-

tude in defense questioning must be granted to permit the

intelligent exercise of peremptory challenges. The purpose of

voir dire, however, is to provide the assurance that the -defen-

dant receives a fair and impartial trial, not to help the defense

make discretionary challenges. Indeed, “peremptory chal-

lenges .. . are not required by the Constitution.” Ross, 487 U.S.

at 89. Because peremptory challenges are a creature of statute

and rules of court only, it is for the states “to define their

purpose and the manner of their exercise.” Id. The absence of a

constitutional basis for peremptory challenges precludes a con-

stitutional requirement that voir dire be structured to aid the

defense in making discretionary challenges. Cf. Pennsylvania v.

Finley, 481 U.S. 551 (1987) (when a state chooses to act in an

area of state discretion, the federal Constitution does not dic-

tate the form of state assistance).

C. The Constitution Does Not Require That “Content”

Questions Be Asked During Voir Dire In A Capital

Case.

1. Insofar As Mu’Min’s Claim Is Founded Upon

The Eighth Amendment, It Is Not Properly

Before The Court.

Petitioner asserts that he was constitutionally entitled

under the Eighth Amendment to ask the proposed con-

tent questions. (Pet. Br. 16). The record establishes, how-

ever, that Mu’Min presented no Eighth Amendment claim

on direct appeal. Accordingly, any such argument is juris-

dictionally barred from review by this Court. See Kentucky

v. Stincer, 482 U.S. 730, 747 n.22 (1987); Cardinale v. Louisi-

ana, 394 U.S. 437 (1969); Rule 14.1(h).

On direct appeal, Mu’Min did not assign as error any

Eighth Amendment claim. In his brief, at the outset of a

nine page argument on the voir dire issue, petitioner

made a one sentence reference to the greater reliability

required by the Eighth Amendment in death penalty

cases. (Def. Br. 12). This “generic reference” was never

subsequently developed in any manner whatever. Cf. Tay-

lor v. Illinois, 484 U.S. 400, 401 n.9 (1988) (generic refer-

ence to Fourteenth Amendment not sufficient to preserve

constitutional claim based on unidentified provision of

Bill of Rights); Beck, 369 U.S. at 550-553 (constitutional

contention not made at trial, not listed in assignments of

error, and set forth in one sentence of 125 page brief,

considered waived by state supreme court; not enter-

tained by United States Supreme Court). Instead, Mu’Min

presented arguments focusing exclusively upon state law

issues and his rights under the Sixth and Fourteenth

Amendments to a trial by an impartial jury. See generally

Witt, 469 U.S. at 423 (exclusion of jurors based on views

of death penalty is grounded on Sixth Amendment right

to trial by fair and impartial jury, rather than on Eighth

Amendment safeguard against cruel and unusual punish-

ment).

The Supreme Court of Virginia clearly did not con-

strue his arguments as raising any Eighth Amendment

issue; in its opinion, the Court referred exclusively to

alleged violations of due process and Mu’Min’s right to

trial by an impartial jury. 239 Va. at 442, 389 S.E.2d at 392.

Indeed, in rejecting petitioner’s arguments, the Supreme

Court of Virginia never once cited the Eighth Amendment

or any Eighth Amendment case.'° Under these circum-

stances, petitioner is jurisdictionally barred from relying

upon the Eighth Amendment in this Court.!!

10 Thus, this case is distinguishable from Taylor v. Illinois,

484 U.S. 400 (1988), in which this Court rejected Illinois’ argu-

ment that the petitioner’s Sixth Amendment claim was barred

because it had not been raised in the state courts. As the Court

noted in Taylor, the petitioner had relied upon several of its

prior Sixth Amendment cases in his state appellate brief. 484

U.S. at 401 n.9. Mu’Min’s brief on direct appeal as well as the

opinion of the Supreme Court of Virginia make clear that

nothing comparable occurred in this case.

‘1 Mu’Min is not free to argue that the Supreme Court of

Virginia misinterpreted the scope of his argument. Petitioner

had a duty to petition the state Supreme Court for a rehearing

if he thought the Court had overlooked an Eighth Amendment

claim. See Rule 5:39 of the Rules of the Supreme Court of

Virginia.

2. Mu’Min’s Reliance Upon Turner v. Murray Is

Misplaced.

In Turner v. Murray, 476 U.S. 28, 35 (1986), this Court

held that, because of the degree of discretion afforded a

capital sentencing jury, “there is a unique opportunity for

racial prejudice to operate but remain undetected.” Thus,

where a capital defendant is charged with an interracial

crime, he is constitutionally entitled to question prospec-

tive jurors on the issue of racial prejudice.!2 476 U.S. at

36-37.

The Turner decision focused specifically on the sen-

tencing discretion of the jury, and this Court vacated

Turner’s death sentence only because it found “an unac-

ceptable risk of racial prejudice infecting the capital sen-

tencing proceeding.”'* Turner’s adjudication of guilt was

left fully intact. 476 U.S. at 37.

Moreover, while the jurors in Turner were asked on

voir dire if they were aware of any reason why they could

not be impartial, and all responded in the negative, at the

time they were asked this question the prospective jurors

“had no way of knowing that the murder victim was

white.” 476 U.S. at 31. Consequently, they had no way of

knowing that Turner was charged with an interracial

offense.

'2 In Mu’Min’s case, the issue of possible racial bias was

fully explored during voir dire (J.A. 4, 28-31; App. 281-282,

287-288, 316, 323, 354-355, 379-380), and petitioner makes no

allegation to the contrary.

13 At his resentencing trial, Turner was again sentenced to

death. Turner v. Commonwealth, 234 Va. 543, 364 S.E.2d 483, cert.

denied, 486 U.S. 1017 (1988).

In Mu’Min’s case, on the other hand, when the jurors

were asked whether they had formed an opinion about

the case and whether they could lay aside everything

they had heard or read and decide the case solely on the

evidence, they possessed all the information they needed

- in terms of their exposure to publicity — to give a full

and truthful answer. Thus, while there was reason in

Turner to question or doubt the accuracy of the jurors’

avowals of impartiality, no such reason exists here.

Beyond the extremely narrow context of the possi-

bility of latent racial bias infecting a capital sentencing

decision, Turner did nothing to alter the general principle

that the responsibility for conducting voir dire, and for

assuring the selection of fair and impartial jurors, is

firmly committed to the sound discretion of the trial

judge. There are a number of compelling reasons why

Turner should not be extended beyond the confines of a

capital case where latent racial bias might be a factor.

First, in our society racial prejudice is widely consid-

ered to be morally reprehensible, whereas the mere form-

ing of an opinion or attitude about a case based on news

reports carries no such stigma. More direct questioning

on the subject of racial prejudice is thus justified in order

to overcome a juror’s hesitancy to subject himself to

public obloquy by an admission of racial prejudice.

Second, racial prejudice is likely to be a long-stand-

ing and largely unconscious attitude, whereas a view-

point based on news reports is only recently acquired and

consciously processed in the mind of the juror. Therefore,

more direct voir dire is justified in order to call the juror’s

attention to his or her own racial attitude.™4

Third, racial prejudice will be more difficult for a juror

to set aside in accordance with the trial court’s instructions

than will an impression engendered only by news accounts.

As a result, racial prejudice presents a far greater threat to

the integrity of the jury verdict than does information from

news accounts because the effect of racial prejucice on a

juror’s decision will always be destructive of a fair judgment.

Racial prejudice will always distort the juror’s judgment;

there is no legitimate role that racial prejudice can play in

jury deliberations. By contrast, information acquired from

news accounts is more easily countered by questioning on

voir dire, and by the evidence introduced at trial and instruc-

tions of the court.

Finally, this Court characterized the required voir dire in

Turner as “minimally intrusive,” and stated that, “as in other

cases involving ‘special circumstances,’ the trial judge retains

discretion as to the form and number of questions on the

subject... . ” 476 US. at 37. Turner requires nothing more

than that the jurors be informed of the facts which might

trigger their prejudice, and then that they be asked if in fact a

prejudice exists in their mind.

What Mu’Min seeks, however, is an inquiry far more

intrusive than that mandated by Turner. Comparable

“content” questions in the Turner context would have

included questions such as: “What have your experiences

been with Black people? What were you taught as a child

'* Calling the juror’s attention to such bias, so that it may

be acknowledged, is the purpose of such questions, rather than

challenging the juror’s denial of bias. See Ham, 409 U.S. at 527.

about Black people? Did you have Black friends as a

child? Do you have Black f-iends now? Have you ever

entertained Black guests in your home? Do Black people

attend your place of worship? Did you go to school with

Black people? Have you ever been frightened by a Black

person?” No such intrusive inquiry was constitutionally

mandated by Turner, nor should it be.

The Constitution simply does not require psycho-

analysis of the thought process by which jurors asvive at

the determination that they entertain no bias or prejudice.

Nor does the Constitution require that the trial judge

possess the information gleaned from such a psycho-

analysis when the judge assesses the jurors’ swearing

under oath that they are impartial.

D. Sound Reasons Militate Against Requiring “Con-

tent” Questions.

Although this Court in Ham and Turner has required

some voir dire questions, upon defense request, regarding

the possibility of racial bias, the Court has also acknow!-

edged that there are risks associated with such questioning,

As Justice Powell pointed out in dissent in Turner, specific

inquiries about racial bias as opposed to more general

inquiries about bias may have the undesirable result of

suggesting to jurors that considerations of race are relevant

to the issues at trial. 476 U.S. at 49, n.6 (Powell, J., dissent-

ing). In a similar manner, calling attention to what wasgheard

or read outside of court might suggest to a juror that out-of-

court statements are relevant.

In addition, such questioning could serve to refresh a

juror’s recollection of the news accounts and make them

more vivid in his mind. This is especially true in this case

where the petitioner relies solely on news accounts occur-

ring three to seven months before trial. If one accepts

Mu’Min’s premises that a juror’s recollection of news

accounts about the case will prejudice the defense and

that a juror’s assurances of impartiality cannot be trusted

then not only are the juror’s statements concerning his or

her exposure to news accounts likewise suspect, but the

net effect of the questions Mu’Min contends should be

asked would be to have the juror go into the trial with a

more vivid recollection of the allegedly prejudicial news

accounts than he would have without the questions.

Furthermore, to require a juror to delineate the con-

tent of news items he has read or heard about the case

and then permit him to sit on the jury might unwittingly

suggest to him the existence of other more damaging

news accounts. The juror might conclude that some such

accounts were so prejudicial that, had he revealed a famil-

larity with them, he would have been removed for cause.

Moreover, while the rules established by Ham and

Turner requiring inquiry into racial prejudice were sus-

ceptible of bright-line standards, no such bright-line test

is possible in this case. On the contrary, Mu’Min emphas-

izes the “unique” facts of this case and acknowledges in

effect that his position hinges upon the quantum of pre-

trial publicity in this case, and this case alone. Criminal

cases, both capital and non-capital, run the gamut from

obscurity to overwhelming sensationalism, with no

obvious point in the spectrum to establish a brightline

Standard. The applicability of the rule would ultimately

be a question for the discretion of the trial judge, the very

discretion which Mu’Min would have this Court now

remove.

A final major consideration is the practical effect that

such a rule would have on state courts. While there is no

constitutional right to individual voir dire of jurors,

requiring the sort of “content” questions advocated by

Mu’Min would effectively require individual voir dire,

otherwise the “content” revealed by one juror could “con-

taminate” all other jurors on that panel. This Court has

repeatedly emphasized, however, that voir dire and the

determination of impartiality are matters particularly

within the province of the trial judge. See, e.g., Ristaino,

424 U.S. at 594-95. A ruling in favor of Mu’Min would

inevitably result in the type of marathon voir dires which

already are permitted in some states, but which states like

Virginia have scrupulously and appropriately endeav-

ored to avoid.'®

'S California is one state which has adopted an approach to

voir dire similar to that which Mu’Min advocates. See People v.

Williams, 29 Cal.3d 392, 628 P.2d 869 (1981). Yet the results of a

survey published by the National Center for State Courts indicate

that, among California lawyers and judges, “everybody except

criminal defense lawyers” believes criminal voir dire in California

to be a “horrible perversion of the justice system,” and, even

among, defense lawyers, the rate of attorney satisfaction with jury

selection was no higher in California than in Colorado, where the

length of voir dire is closely monitored in the trial judge’s discre-

tion, and voir dire time limits of 30 to 45 minutes were commonly

reported. Even within California, the highest rate of attorney satis

faction with jury selection was reported in Monterey, where an

informal local policy limits the length and extent of vour dire. Sev

Sipes, On Trial, The Length of Civil and Criminal Trials 42-45

(National Center for State Courts, 1988)

Moreover, this rule would not be limited to issues of

pretrial publicity. If a juror had any knowledge of the

case, the details of such knowledge would, under the

same principles, have to be disclosed during voir dire.

Voir dire in criminal cases conducted in small towns or

rural localities, where many of the jurors had known the

defendant his entire life, would require each juror to

provide his or her recollection of the defendant's life

story. Plainly, the operation of such a rule would change

the nature of criminal trials in a major portion of the

nation, making the voir dire longer than the trial itself.

In 1971, then Chief Justice Warren E. Burger, in a

speech to the National Conference on the Judiciary in

Williamsburg, Virginia, commented that selection of a

jury has “become in itself a major piece of litigation

consuming days or weeks,” and predicted that American

citizens would soon “lose patience with the cumbersome

system.” Los Angeles Times, Mar. 13, 1971, § 7 at 17, col.

1. The rule advocated by Mu’Min would unquestionably

exacerbate the existing problems of delay, congestion,

and expense which continue to plague state criminal

courts.

E. The Trial Court Did Not Abuse Its Discretion In

Impanelling Mu’Min’s Jury.

The trial judge heard the veniremen’s answers during

voir dire, observed their demeanor and determined their

credibility. He concluded that those who were to serve on

Mu’Min’s jury were impartial. (Tr. 4/17/89, p. 182). This

factfinding is owed the same degree of deference histori-

cally given to other findings of fact made by a trial court.

1. The Jury Selection Process Was Thorough And

Fair.

The voir dire in Mu’Min’s case was conducted pains-

takingly, carefully protecting the interests of the defen-

dant. Group voir dire spanned 39 transcript pages (App.

221-262), and small panel voir dire spanned an additional

106 transcript pages. (App. 274-381). On at least seven

separate occasions during panel voir dire, the trial judge

assisted the defense with follow-up questions that

expanded the scope of the question asked by the defense;

required a more specific response from the panel; clari-

fied a point for the defense; or covered a topic the

defense had covered with one panel but neglected to

cover with another. (App. 275-277, 280-281, 284-285, 287,

291-294, 319, 328). The court allowed the defense to ask

jurors if they were biased against members of the Islamic

faith (J.A. 77), whether they would be able to judge the

case fairly in light of the facts that the defendant was

Black, the victim was white, and the victim had been

found nude from the waist down (J.A. 76), and whether

they had ever been the victim of a racial incideni involv-

ing a Black person. (J.A. 84, 86). The trial court struck

Juror Haines for cause, upon Mu’Min’s motion and over

the prosecution's objection, because the court felt she had

not been as frank as she could have been concerning her

opposition to the Islamic religion and her prejudice

against defense counsel arising from a previous case. (J.A.

77-78, 81).

When a juror indicated that her discussions with her

supervisor might unconsciously prejudice her judgment,

Mu’Min and the trial court both inquired into the sub-

stance of her discussions with her supervisor, (J.A. 73-75).

Mu’Min was also allowed to inquire into how jurors’

judgment would be affected by the extent of their

acquaintances with the victim (J.A. 85), and a witness.

(J.A. 89). In questioning a juror who was employed as a

newspaper editor, the court asked her if she had attended

any news briefings or conferences concerning the

Mu’Min case. (App. 328). She had not, but when she

equivocated about her ability to judge the case fairly, the

court struck her sua sponte. (App. 329). The court rejected:

any suggestion by the prosecution of challenge to a juror

who had said it would be very difficult for him to impose

the death penalty. (App. 309).

“[T]he question is whether there is fair support in the

record for the state court’s conclusion that the jurors here

would be impartial.” Patton, 467 U.S. at 1038. Specifically,

the relevant question is “did a juror swear that he could

set aside any opinion he might hold and decide the case

on the evidence, and should the juror’s protestation of

impartiality have been believed.” Id. at 1036.

The answer to the first part of the inquiry is easily

discernible because, unlike eight of the twelve Patton

ue The issue here is not whether the jurors as a whole had

such fixed opinions that they were unable to fairly judge the

guilt of the defendant because, unlike the petitioner in Irvin

366 U.S. at 720, Mu’Min is not attacking the partiality of the

“éty as a whole; indeed, he has abandoned his claim that the

trial court erred in denying his motion for a change of venue.

Rather, he is asserting that the trial court's failure to ask certain

questions deprived him of the ability to determine the poten-

tial bias of individual jurors. Even if the “jury as a whole” test

applied here, however, the test would be met because none of

the jurors had any “fixed Opinions” about the case.

jurors, each of the jurors who tried Mu’Min indicated

expressly that they had formed no opinion about the case

at all and could try it solely upon the evidence. (J.A. 48,

52, 72-74, 76, 79-80, 83-86, 88, 90-91, 93).

The second prong of the inquiry must also be

answered in the affirmative. Here, as in Patton, the trial

court questioned the prospective jurors at length; in fact,

the court questioned them both as a group and in panels

of four and two. Unlike the jurors’ responses in Patton,

however, 467 U.S. at 1038-1039, the answers of the per-

sons who sat on Mu’Min’s jury were neither ambiguous

nor contradictory.

The jurors here were clear and unequivocal in their

responses that they had no opinions about the case and

could set aside whatever they had heard or read and

decide the case only upon the evidence. They were not

hesitant to discuss issues and offer information in

response to questions. And, importantly, the trial judge

did not hesitate to dismiss any juror who indicated that

he had an opinion or who equivocated in discussing the

matter.

Any claim that the impartiality of the jury was not

properly determined must focus on the jurors who actu-

ally sat. See Ross v. Oklahoma, 487 U.S. 81 (1988); Patton,

467 U.S. at 1037. Of the twelve jurors who actually tried

the case, four stated that they had never heard anything

about it. (Tr. 4/17/89, pp. 5-7; J.A. 46-48). One of the

other jurors said he had not heard anything during the

original panel voir dire, but indicated he had during the

small panel voir dire. (J.A. 46-48, 79). Six stated that they

had read about or discussed the case. (J.-A. 46-48). These

seven jurors exposed to outside information about the

case were all part of the original twenty-six member

panel that had been asked whether they could try the

case according to the law as instructed by the judge and

on the evidence that they would hear from the witness

stand. Each had indicated that he or she could. (J.A. 44).

All twelve jurors indicated that they were not sensi-

ble to any bias against Mu’Min; that they understood he

was presumed inrocent until proven guilty beyond a

reasonable doubt; that it was the Commonwealth’s bur-

Gen to prove him guilty beyond a reasonable doubt; that

they could not consider the fact that Mu’Min had been

indicted and was on trial as evidence of guilt; and that

Mu’Min did not have to produce any evidence in his

defense. (J.A. 44-46).

The judge then asked the following questions regard-

ing outside sources of information and pretrial publicity:

Have any of you acquired any information

about the offense, the alleged offense, or the

accused from the news media or from any other

source?

Would the information that you heard, received,

or read from whatever source, would that infor-

mation affect your impartiality in this case?

Is there anyone that would say what you've

read, seen, heard, or whatever information you

may have acquired from whatever the source

would affect your impartiality so that you could

not be impartial?

Have any of you expressed or formed an opin-

ion of the innocence or guilt of the accused?

Is there any person who has already formed an

opinion as to the innocence or guilt of the

accused?

idering what the ladies and gentleman who

hoet cana in the affirmative have heard or

read about this case, do you believe that you can

enter the Jury box with an open mind and wait

until the entire case is presented before reaching

a fixed opinion or conclusion as to the guilt or

innocence of the accused?

In view of everything that you’ve seen, heard,

or read, or any information from whatever

source that you’ve acquired about this case, is

there anyone who believes that you could not

become a Juror, enter the Jury box with an open

mind and wait until the entire case is presented

before reaching a fixed opinion or a Concruston

as to the guilt or innocence of the accused?

(J.A. 46-48).

Each of the jurors who had heard something about

the case indicated that the outside information would not

affect his or her impartiality, that he or she had formed no

opinion based on the outside source of information, and

that the outside source of intormation would not affect

his or her ability to enter the jury box with an open mind

and determine Mu’Min’s guilt or innocence only on the

basis of the evidence presented. (J.A. 48). These jurors

were consistent when questioned again along the same

lines during the smaller panel voir dire sessions. (App.

275; J.A. 72-80; App. 292; J.A. 84-85).

One of the jurors who had indicated she had heard

about the case, Ms. Walters, had discussed the case with

her supervisor. She volunteered that the supervisor lives

in the same block as the victim. (J.A. 73). The trial judge

allowed Mu’Min’s attorney to explore the discussion with

the supervisor at length (J.A. 73-74), and to elicit from

Ms. Walters the content of the discussion. (J.A. 75). The

court encouraged Ms. Walters to reveal any additional

content concerning the supervisor’s knowledge of the

victim. (J.A. 75). In response to repeated questioning by

the court over the prosecutor’s objections, Ms. Walters

said there was no question in her mind about her ability

to enter the jury box with an Open mind and reach a fair

and impartial verdict based only on the law and the

evidence. (J.A. 74-75).

Another juror admitted during voir dire he had dis-

cussed the case with somebody the previous day who

informed him that “there was a murder trial or something

on.” (J.A. 51). That was the total “content” of his outside

knowledge of the case. He indicated he had not read

anything about the case, had formed no Opinion, and the

brief discussion he had had would not affect his ability to

enter the jury box with an open mind and decide the case

based on the evidence presented. (J.A. 51-52).

In sum, each time a prospective juror equivocated in

answering questions related to cause, or indicated a pos-

sible bias, the trial judge struck the juror sua sponte. Of

the twelve who sat, eleven gave absolutely no cause for

further inquiry concerning pretrial publicity. The only

one who did so was questioned extensively by Mu’Min’‘s

counsel. In response to questioning by court and counsel,

she disclosed the contents of the remarks she had heard,

and her answers convinced an impartial judge that the

conversation would not affect her judgment. The record

with regard to the twelve jurors who sat in Mu’Min’s case

provides strong support for the trial judge’s determina-

tion of impartiality.

2. There Is No Reason To Doubt The Trial Court's

Findings.

It is significant that at the conclusion o ihe omet

panel voir dire, Mu’Min did not renew his motion to

strike for cause those jurors who had been exposed to

outside information. Nor did he renew his motion for a

change of venue at that time. Plainly, Mu’Min was suffi-

ciently impressed with the fairness of the panel thus

assembled to forego these motions and try his case to a

jury picked from this panel.

In Patton, this Court recognized the fundamental

reality of juror voir dire:

It is well to remember that the lay persons on

the panel may never have been subjected to the

type of leading questions and cross-examination

tactics that frequently are employed. :

Prospective jurors represent a cross section 0

the community, and their education and experi-

ence vary widely. Also, unlike witnesses, pro-

spective jurors have had no briefing by ee

prior to taking the stand. Jurors thus cannot be

expected invariably to express themselves —

fully or even consistently. Every trial judge un er-

stands this, and under our system it ts that judge

who is best situated to determine competency to

serve impartially.

467 U.S. at 1039 (emphasis added). The trial judge here

conducted a lengthy and fair voir dire which revealed

neither a fixed opinion nor any predisposition as to guilt

or sentence among the jurors who tried Mu’Min. This

Court should defer to those findings of impartiality.

At the time of the motion for a change of venue,

defense counsel conceded that “taking all these articles

individually you don’t come up with much.” (J.A. 9)

(emphasis added). He did not assert that the publicity

made a fair trial impossible or even unlikely, and when

the trial court thus noted that the motion was premature

and that “we just may be able to get a jury,” defense

counsel expressly agreed. (J.A. 12).

The submitted articles include news coverage over

four months, from September 26, 1988 to January 14,

1989. The resulting average of four articles per week was

not excessive, considering this was an atrocious murder

case in a suburban area. The majority of the submitted

articles appeared in the Potomac News, a small local

paper of limited circulation. They were not inflammatory.

Several contained the facts surrounding the crime, inves-

tigation and judicial proceedings. Others were criticisms

of the Virginia Department of Corrections’ road work

program.’”

While some of the reports included information

about Mu’Min’s prior criminal record, including his 1973

murder conviction, evidence of that murder conviction

'7 Although Mu’Min referenced additional news articles in

his renewal of the motion for change of venue on April 17,

1989, Mu’Min does not now rely upon any such additional

articles.

was introduced at trial. (App. 447). Mu’Min’s own state-

ment that he stabbed the victim was also admitted at

trial. (App. 650).

At the conclusion of the group voir dire, Mu’Min

renewed his motion for change of venue, stressing only

the amount of publicity rather than the nature of any

particular news account. (J.A. 69). The trial judge Cmied

his motion, noting the absence of any effect on the jury

from the publicity. (J.A. 71).

No specific publication of clear prejudicial patents!

was ever cited by defense counsel in connection with his

voir dire requests. Mu’Min may not now congiein en

specific questions were not allowed to assess jurors

exposure to some particular news account. See Nebraska

Press Association v. Stuart, 427 U.S. 539, 602 (1976).

The pre-trial publicity in this case clearly did not

create the “extremely inflammatory” background which

occurred in Sheppard v. Maxwell, 384 U.S. 33 (1966) or

Rideau v. Louisiana, 373 U.S. 723 (1963) or the “circus

atmosphere” found in Estes v. Texas, 381 U.S. 532 (1965).

See Murphy v. Florida, 421 U.S. 794, 798-802 (1975). There

is thus no basis for arguing that the jurors’ answers

should be suspect as a matter of law.

An inquiry into the content of the information jurors

had obtained could not have affected the trial court's

assessment of impartiality. Petitioner argues that without

specific exploration of the source, content and quantity of

information that a juror has received, the trial court was

unable to assess whether the juror’s statements of impar-

tiality were to be believed. What Mu’Min ignores,

however, is the absence of any preconceived opinion that

would call impartiality into question in the first place.

An examination of the sources and content of a

juror’s prior knowledge of the case has ~»otential rele-

vance only for the purpose of assessing whether the juror

can lay aside a preconceived opinion based on extrinsic

information and render a verdict based only on the evi-

dence presented in court. Content questions, however,

cannot expose a bias or prejudice that would preclude

setting aside an opinion that does not exist.

In view of the great deference owed to the discretion

of trial judges to control the conduct of voir dire, this

Court has restricted any constitutional requirement of

particular inquiry to those exceptional cases where signif-

icant and compelling circumstances mandate it. See, e.g.,

Turner; Ham; Ristaino. Those circumstances are not dem-

onstrated where, as here, the nature and extent of the

publicity does not give rise to any substantial likelihood

of presumptive prejudice, and the voir dire itself com-

pletely rebuts any suggestion of actual prejudice.

CONCLUSION

For the foregoing reasons, Mu’Min had no constitu-

tional right to inquire into the content of publicity to

which his trial jurors had been exposed. The voir dire

was thoroughly and properly conducted, with the result

that Mu’Min was tried by a fair and impartial jury. The

Commonwealth of Virginia therefore respectfully

requests that the judgment of the Supreme Court of Vir-

ginia be affirmed.

Respectfully submitted,

Mary Sue TERRY ae

Attorney General of Virginia

H. LANE KNEEDLER

Chief Deputy Attorney General

SterHEN D. ROSENTHAL

Deputy Attorney General

Jerry P. SLONAKER

Senior Assistant Attorney General

Joun H. McLees, Jr.

Assistant Attorney General

THomas C. DANIEL .

Assistant Attorney General

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