Cordero v. United States

BELSON, KERN, Bеfore FERREN and Judges. Associate FERREN, Judge: Associate in this case is principal question refused erroneously trial court whether the during voir dire of raise certain matters trial We conclude that the jury panel. failing either by court abused its discretion followed alleged, to outline the facts prospec- inquiry as to whether specific any toward of them or of their close relatives jurors any prejudice tive felt with, of, lant because of his views or affilia- the victim had ever been tions, or to alert the prospective at least “disturbing peace type” or witness to a issues involved and offense; of them whether inquire, generally, then to more ever “law their close relatives had done could be We therefore re- impartial. work” or been a member of a enforcement appellant’s verse conviction and remand of agency” “law enforcement the District a new trial. area; (5) whether of them any Columbia give greater inclined to or lesser would be I. testimony police of a officer weight disrupting with Appellant charged was witness; any other testimony than to the 9-123(b)(4), Congress. D.C.Code §§ on (6) any whether of them had ever served (recodified 9- -124 as D.C.Code §§ (7) any of them had grand jury; whether 112(b)(4), —113).1 counsel proposed His training”; (8) and whether “legal ever had voir questions, dire which the trial other than аny “any feeling of them had that would rejected, including questions about the case or complete neutrality” probed potential jurors’ the attitudes any why reason he or she could knew of who a speech toward someone had made based “render a fair and verdict denouncing “planning the United law the evidence.” solely on the and World War III” and who was a member of provoked re- Only two of these the and the Against Vietnam Veterans War five mem- sponses prospective jurors: Revolutionary Party. Communist or panel they bers of the answered that dire, conducting pursuant In voir to Su- their relatives had done “law enforcement per.Ct.Crim.R. the court said it was fol- (two CIA, in the Metro- work” in the two lowing “regular” procedure. its The court and one in the politan Department, Police appellant told the that Guard), and three members stated National charged “Disrupting Congress was with “legal training.” The they that had some language that he uttered loud in Senate on the jurors who had relatives prospective orderly the con- Gallery disturbing No. those who had received police force and Congress.” duct of a session of The court training by peremptory were removed legal jurors: (1) then asked the challenges. read any whether of them had heard or two trial, presented At the charged; about the incident anything Mayo Gilbert witnesses. Officer any recognized appellant, whether of them 2,1979, witnesses; May that on Capitol Police testified attorneys, or provides: 9-123(b)(4) provides: D.C.Code § D.C.Code § displays assemblages forbid- Parades or and Capitol or in Unlawful conduct on Grounds Capitol den in Grounds. buildings. stand, parade, or move It is forbidden assemblages processions or said (b) any person be unlawful for or It shall Grounds, display Capitol therein or to States any flag, willfully knowingly— group persons banner, adapt- designed device or or any party, public bring or- into notice ed to ganization, loud, threatening, or abusive to utter movement, except herein- or disоrderly language, engage any or or to provided and 9-129. in sections 9-128 after conduct, any place upon disruptive wrongly The information stated any Capitol or within United States Grounds violating lant was Capitol buildings im- 9 U.S.C. with intent of the pede, disrupt, appellant 123(b)(4) never 124. Because orderly §§ conduct or disturb prejudice attribut- any Congress suffered or either has claimed that he session of the error, grounds thereof, orderly cannot be within to this it House or the conduct able before, Super.Ct.Crim.R. building any hearing such reversal of his conviction. of, 7(c). or sub- deliberations committee Congress House committee of the thereof; or either Mayo people tеstified that around gallery he was on in the watch- duty Senate ing the conduct “routine business” Senate at- “frightened” seemed appellant gallery give when he heard someone in the stated, over tempted away. Mayo to move yell.” Mayo turned and “scream-type objection hearsay grounds, on appellant’s seat, appellant saw that had risen from that as he moved to arrest “shouting toward the floor of the Sen- pounded tern of the pro President Senate war,” ate” “revolu- about “the third world for the several times and called gavel tion,” in Viet- killing people and “the in the Sergeant at Arms to restore order nam,” throwing and was leaflets into the Mayo arrested gallery. Senate and in not recall exact Mayo appellant’s air. could gal- escorted him from the appellant and words, but he were remembered lery. written state- “basically same” as the leaflet, ments in leaflet. That Mitchell, John who Capitol Police Officer first, necessary, which was . to refresh on duty also was Senate recollection, into evi- Mayo’s was entered time, corroborating gave testimony the dence, by jury, and reviewed the as Govern- incident, including Mayo’s account of- the ment 1. It read as follows: Exhibit leaflet. appellant’s identification of supposed spec- We are to bе awed the by he lacked defense was that Appellant’s taking tacle before us. leaders” “Our disrupt care of “our business.” Just another to Con- required specific the intent damn lie. in- supra) (see. since he had gress note ready are for getting These millionaires in the people to to the only speak tended World War III. These monstrous ani- itself, Appel- the gallery not to Senators. mals who tried to bomb the Vietnamese objection government over lant testified age, into the stone who tortured merci- and that he that he was a Vietnam veteran and committed countless atrocities lessly joined Against Vietnam Veterans the Chile, Iran to these world-wide from Union, War, the Revolutionary the and the walk around profit hungry vampires who his Party after Revolutionary Communist in three suits and call themselves piece stat- Army.2 Appellant from the discharge statesman, businessmen, polite names like few Washington to a ed that he had come how hun- general many and don’t care participate his arrest to days before are incinerat- people dreds of millions of 1, 1979, Day Workers’ May International ed. He visited the Senate Celebration. them to war. driving Their is system he arrested and decided day the before was go fight here to the They want the slaves to see which master can speak slaves Russia to to thе American that he “wanted Bring- on earth. biggest empire have the gallery, of the and make people, people the that. ing part back the draft is of He World War III.” a statement about got we People To hell with them. and returned the next prepared a leaflet revoluntionary civil war make it a that he “made day. Appellant admitted leadership the of against them. Follow statement,” that he knew the Senate [his] Party and Revolutionary the Communist so, he and that he was in session when did to end to make revolution be determined care if the heard.” “didn’t Senators misery. of system this appellant guilty of dis- The found guns our hands they put In Vietnam the trial court sеntenced rupting Congress; guns us kill —but a lot of those and had and fined him imprisonment him to 30 days’ of on the officers. slaves got turned suspended The court execution $300. enemy but one and that this world have days case for 30 continued the sentence and capitalists, oppressors. evidence, by buttressed objecting, his leaflet into called testi- In testimony Mayo corroborating point of mony Officers frivolous of “irrelevant” —a view government’s Mitchell. introduction of or, payment of the fine fine were burden government’s proof. if the pro These paid, appellant days posed serve concerned propositions of paying lieu of the fine. in Davis law. Wе held v. United (1974), A.2d

D.C.App., 315 that a II. trial voir properly court declined to allow a question “inquired respecting dire Appellant contends that the trial court of law and hence proposition invaded his right violated Sixth Amendment to trial judge.” function of trial Once by impartial jury by refusing ask sworn, they are are “bound to render of the jury members panel whether the law given verdict under them had ever prosecutor’s worked in a court,” it “[accordingly, is not neces office, find it them would as to sary inquire juror whether a will apply legal difficult to regarding pre- rules that which he af refuse to do swears or innocence, doubt, sumption reasonable Wooton, he will do.” United firms Stаtes v. of proof, burden and whether (3d Cir.), denied, cert. would be prejudiced them against 46 L.Ed.2d 128 because or affilia- beliefs (1975); Price, United States v. tions. Cir.1978), A. “The law affords trial (1979).3 L.Ed.2d 33 court broad conducting discretion in voir examination; Appellant’s final argument— C. dire absent of dis an abuse that the trial abused its discretion cretion and substantial ac cused, refusing to ask directed at deter the trial upheld.” court will be mining whether be States, Khaalis v. United would D.C.App., 408 313, denied, prejudiced against appellant because of his (1979), A.2d 335 cert. 444 U.S. or a 1092, 1059, presents 100 views (1980). S.Ct. 62 781 L.Ed.2d affiliations — problem. more difficult The trial The trial court did not court’s abuse its discretion by broad discretion is limited refusing in to ask “the еssential jury panel whether Aldridge demands of v. of them had fairness.” United prosecu ever in a worked States, 308, 310, 470, 471, office, 51 283 U.S. ‍‌​‌​​‌‌​‌​‌‌‌‌‌​​‌‌‌​​​​‌‌​‌‌‌​‌‌​​​​​​​‌‌​‌​​‌‌‍S.Ct. ques tor’s the court this covered (1931); 75 accord Evans substance L.Ed. 1054 v. Unit tion in when it prospec asked the 1015, States, D.C.App., ed 392 A.2d 1025 jurors tive whether had done any of them Robinson, (1978); States v. 154 U.S. “law enforcement United work” or had received 269, 265, 376, App.D.C. (1973). 475 F.2d 380 training.” “legal v. See United States that the Cockerham, We conclude voir dire examination 97, 155 U.S.App.D.C. 476 F.2d satisfy at trial failed to those (1973) (per curiam); 542 United States v. demands. McDonnell, 165, Cir.1978) 573 F.2d (3d 166 curiam) (no

(per ques error dire where voir requires a careful voir Fairness tions same substantially “address[ed] when there “signifi dire examination is a by issues raised those coun submitted juror prejudice. cant likelihood” Ristai sel”). 1017, 589, 598, Ross, no v. 424 U.S. 96 S.Ct. 1022, (1976);

B. Nor did the court its dis 47 L.Ed.2d 258 see United abuse 340, refusing Dellinger, (7th cretion to ask members v. 368 States denied, 970,93 to 410 Cir.1972), whether would be able cert. U.S. S.Ct. jury panel 1443, (1973) (“At the law 706 a mini apply regarding presumption 35 L.Ed.2d innocence, counsel, doubt, mum, requested by inquiry and the reasonable when doubt, innocence, urges presumption Appellant reasonable us States v. 3. to follow United Blount, by proof. (6th 1973), holding Id. at 651. We do 479 F.2d 650 and burden Cir. and, event, persuasive are a trial court commits error if it find Blount reversible Davis, adopting light prospective “they precluded jurors it in to ask refuses binding precedent. accept relating supra, proposition[s] could of law" 842 where fense that he drug possession charge

must be made into matters the likeli was his civil been framed retaliation for prejudice great hood of is so that not rights activities). inquire assembling would risk failure in jury.”) significant A likelihood have held that controversial Courts (1) when a case involves prejudice exists careful include requiring inquiry matters “matters which either the local concerning abortion,6 race,4 al- nationality or religion,5 at community large or the population drug-related ienage,7 insanity,8 sexuality,9 commonly strong known to harbor feel crimes,10 In cases attitudes.11 270, ings,” Robinson, 475 F.2d at supra inex where controversiаl matters are such 381, “inextricably matters are these trial, tricably linked to courts up bound conduct of the trial.” likeli ways found to minimize the various Rosales-Lopez v. United 451 U.S. hood of Some have stated prejudice.. 182, 189, 1629, 1634, 68 22 101 L.Ed.2d S.Ct. prospec the case to the factual outline of Ristaino, (1981) (plurality (quoting opinion) the con tive in sufficient detail that 597, 1021); 96 see Ham v. supra then, S.Ct. evident, and troversial issue became Carolina, 524, 848, dire, 93 effect: “Is South S.Ct. at the close of voir asked in (failure impar 46 into inquire why you 35 L.Ed.2d there reason cannot be 12 black defendant’s de tial this case?” racial where 1048, Ham, Runner, Furey, F.Supp. supra; States v. Bear States v. 491 4. United 12. United aff'd, attitudes), (1974). (E.D.Pa.) (рolitical 502 F.2d 908 1054-55 denied, Cir.1980), (3d 451 636 1211 F.2d Casey Archbishop v. of Balti- Roman Catholic 1987,68 913, (1981); 304 U.S. 101 L.Ed.2d 604, 627, more, 595, 217 Md. 143 A.2d 631 366, Harrison, v. 368 Mass. Commonwealth Ible, 389, (1958); cf. v. United States F.2d 873, (reli 369-72, 331 N.E.2d 875-77 (5th Cir.1980) (“While we do not need abortion); gious v. views on Commonwealth to decide failure ask voir dire whether this concerning [to 856, Kudish, 362 Mass. 289 N.E.2d jurors’ question moral Rojas, (1972) (same) United States v. religious was reversi- alcohol] beliefs about 1976) (attitudes toward Cir. error, ble ... views this the court action drug-related crimes), cert. grave trial court with concern.... [T]his Cf L.Ed.2d very appropriate inquiry by counsel area Peterson, U.S.App.D.C. expected inquiry and it is such will be 219, 225, (attitudes toward (citations omitted)). conducted on retrial” denied, 1007, firearms), 367, 414 94 S.Ct. cert. U.S. (1973); v. L.Ed.2d 244 Commonwealth 38 143, 146, Murawski, Peоple 2 Ill.2d 117 6. v. 270-71, 266, Mascolo, Mass.App.Ct. 375 6 88, Wasy Indiana, (1954); N.E.2d 90 v. 234 Ind. denied, 17, (obscenity), 439 N.E.2d 22-23 cert. 52, 55, 462, (1955) (religious 123 N.E.2d 464 265, (1978); 899, 58 247 U.S. 99 S.Ct. L.Ed.2d Barnett, abortion); on 251 views State v. Or. 563, Farrar, 560, Mich.App. 6 149 see v. Kuisel 234, 236, 124, (same). (1958) 445 125 P.2d 894, (“The required (1967) 895 N.W.2d give sufficiently ‍‌​‌​​‌‌​‌​‌‌‌‌‌​​‌‌‌​​​​‌‌​‌‌‌​‌‌​​​​​​​‌‌​‌​​‌‌‍information detailed factual Co., Taylor Supply 702 7. Kuzniak v. 471 F.2d intelligently an so that can (6th 1972). Cir. presented on their voir dire swer the examination”). 339, Olson, 344, 8. State v. Mont. 480 P.2d 156 Sanders, 822, (1971); 242 S.E.2d 825 State v. Supreme has divid The States Court United 554, (W.Va.1978). 557-58 involving two cate racial issues into ed cases gories: “special (1) reflecting circum those 80, 1979) Murray, (La. State v. So.2d 83 9. 375 Carolina, stances,” 409 U.S. Ham v. South see witness). (homosexuality complaining (black 524, 848, (1973) 35 L.Ed.2d 46 93 S.Ct. drug pos on claimed he framed defendant 318, Conrad, (La. v. So.2d 319 10. State 304 rights charge activi because of civil session 1974). 308, States, ties); Aldridge U.S. v. United 283 (defendant 470, L.Ed. 1054 States, 258, 51 75 S.Ct. 339 70 Morford v. U.S. 11. United charged were of crime and victim 586, with violent supra (1950); Dellinger, 94 L.Ed. 815 S.Ct. races), which the States, those in different v. United at 366-70. But see Connors minority group but 408, 951, of a defendant is a member 39 1033 158 U.S. 15 S.Ct. L.Ed. lacking. Workman, “special are See Ris (1895); circumstances” United States v. 454 F.2d 1017, 589, 597, Ross, 1124, denied, S.Ct. Cir.), U.S. 96 (9th taino v. 424 1128-29 cert. 409 U.S. 1021, (1976) (defendant 857, 138, (1972). 102 47 L.Ed.2d 258 93 S.Ct. 34 L.Ed.2d 843 problem Other courts have gist appellant’s proposed addressed directly by more the facts outlining into inquiry possible jury prejudice because asking jurors, then in ef of his beliefs and affiliations is you fect: be prejudiced against “Would 20, 21, proposed in questions, contained defendant because of the controver specific 32, 24 and read in follows: part as sial matter in this case?”13 Courts more 20. will The evidence this case show often approach have taken this latter when that Mr. is either of or Cordero a member political attitudes were the is controversial known supporter organization as Chapin, sue. See United States 169 v. U.S. Against Vietnam Veterans the War. 1289-90, 303, App.D.C. 318-19, 1274, 515 F.2d denied, 1015, 449, ert. 423 96 U.S. S.Ct. c (d) .many you How heard or 46 (1975); L.Ed.2d 387 United States v. read about Vietnam Veterans Giese, 1170, (9th 597 F.2d Cir.), 1181-82 Against the War? 480, denied, 979, cert. 100 S.Ct. 62 (1979); L.Ed.2d 405 United v. Mat States (e) your would ... How this affect tin, 1086, (8th 419 Cir.1970); F.2d 1087-88 this case ability to sit on ... ? Owens, 1308, v. United States 415 F.2d 21. denied, 1314-15 Cir.1969), cert. 397 (g) [Appellant] throwing is accused of 997, 1138, U.S. 25 L.Ed.2d 406 and mak- Gallery leaflets into Senate (1970); Dennis, United States v. ing speech which in essence denounced 201, (2d Cir.1950), 226-28 aff’d on other and other United States countries 494, 857, grounds, 341 U.S. 71 95 S.Ct. L.Ed. planning War III. many World How 1137 (1951); Malinowski, United v. States you your feelings would characterize own 347, (ED.Pa.1972) 347 F.Supp. 355 aff’d on being complete disagreement with 850, other 472 grounds, denied, cert. [appellant’s] speech those expressed 970, 411 93 2164, U.S. S.Ct. L.Ed.2d Having ... ? feelings, ... those would it (1973); Weitzman, 83, State 121 N.H. you be difficult to be fair completely 86-87, 3, (1981). 427 A.2d 5-6 But see sitting juror as a this v. Furey, F.Supp. 1048, case? (E.D.Pa.), aff’d, 1054-55 636 F.2d 1211 you anything 24. Have read or (1980), 913, heard protest about other activities of Viet- (1981); L.Ed.2d 304 Common Harrison, Against 369-72, wealth v. nam Veterans the War of the Mass. Party[?] N.E.2d 875-77 Communist If Revolutionary Rosales-Lopez, crimes violent and victim were of 451 U.S. at 101 S.Ct. at different races, (alienage); but whereas federal trial court must Coleman v. United inquiry (reli D.C.App., make about under su racial 379 A.2d 954-55 ‍‌​‌​​‌‌​‌​‌‌‌‌‌​​‌‌‌​​​​‌‌​‌‌‌​‌‌​​​​​​​‌‌​‌​​‌‌‍pervisory Aldridge, supra, gion); Virgin rule state court v. Fe Government Islands Cir.1978) so, matter, lix, (3d (na need not do as a constitutional tio “inextricably 7, nality); Daily, where racial issues are not bound States v. 9 United 139 Ham, up Dallas, (7th 1943) (same); People with the conduct of the trial” as in v. 85 Ill. Cir. supra). special reflecting 164-67, 110, 119-120, 153, In cases App.3d circum 40 Ill.Dec. stances, during inquire 1202, (1980) (same), courts voir dire must 1211-12 405 N.E.2d possible prejudice upon 1708, denied, 1000, into racial the defend 68 450 U.S. 101 S.Ct. request. Rosales-Lopez ant’s See v. United (1981); Darling, State 208 Kаn. L.Ed.2d 202 v. States, 182, 1629, 191-92, U.S. 101 469, 476-78, 216, (abor 451 P.2d 222-23 493 1635, opinion). (plurality 133, 138, 68 22 State, L.Ed.2d tion); 88 Adams v. 200 Md. cases, As to other “if the circumstanc 556, external (1952) (same). Musgrove A.2d 559-60 Cf. possibility es of indicate a 980, the case reasonable States, D.C.App., v. 441 983 United A.2d ethnic will influence the racial or brutality); (police Commonwealth evidence,” jury’s id. at 192- evaluation Jones, 83, Mass.App.Ct. -, 399 N.E.2d 9 93, 1636, may at make a 101 S.Ct. the court 1081, police (1980) (attitudes toward 1095-97 inquiry generalized thorough into “more but officers). Ristaino, impartiality of the veniremen.” 598, supra 96 at S.Ct. at 1022. 844

so, They among at 1634. were anything you would have heard or 101 S.Ct. offense; underlying alleged facts his basic play your read come into consideration jury be evident to the as soоn as they would of this case? ... (as jury inevitably learned it would 32. Have or close you case-in-chief) what government’s from the friends, family members or associates had the protest he said in his statement and organization ever been a member of Ap- leaflet.15 opportunity to examine his objectives opposi- as one its his question 21(g), describing pro- pellant’s tion to ... Communism? statement, put have the trial test should issue, therefore, the trial is whether could political court on notice that issues declining court abused its discretion in yet excised.16 And the trial court not be into dire examination the incorporate voir the likelihood of took no action to minimize questions.14 substance of these appellant from the controver- prejudice to Appellant’s political views and associa- up bound with the inextricably sial matters tions, especially advocacy his of “revolu- the facts of trial. The court did not outline in the Revolution- membership tion” and his prospective jurors way the case to the “matters Party, constitute ary Communist political them to the issues that alerted concerning population which ... involved. Nor did the court ask strong known to harbor large commonly prejudiced would be they whether Robinson, 270, feelings.” supra at 475 F.2d because of his against appellant Moreоver, appellant’s at 381. controversial or, outlining after views or associations “inex- facts, views and affiliations were they could be Rather, with the conduct of tricably up only bound the court said this case. [his] 189, loud lan- trial,” using 451 was with Rosales-Lopez, supra obliged specific to examine lacked intent to disturb 14. Even where the court is therefore allowable, party’s pro- Ap- as to the if unsuccessful. Senators-—-was matter, posed subject propound specific voir pellant it need not lacked did not claim that he requested questions particular dire form because, may though intent overheard, even Senators Peterson, supra pаrty. United States v. only political and/or motive was 32, And, 225 n. ply 483 F.2d at 1228 n. 32. “[s]im- protected by United the First Amendment. Cf. may in a because counsel have included Cullen, 386, (7th States v. overly question legally void dire some broad Cir.1971) (trial rejected jury instructions matter, totally collateral reject the court should theory embodying that he lacked defendant’s in- an entire line of otherwise relevant specific he intent to bum draft card because Davis, quiry.” Pa.Su- Commonwealth v. beliefs). by religious do so was motivated to 51, 671, (1980); per. see Harvin v. A.2d correctly held that Because the court in Cullen 774, D.C.App., 297 A.2d 777 n. improperly proffered would allow defense (1972). “by judge the defendant’s actions hand, counsel shоuld refrain On the other designed to his means were the end which here, proposing, more as counsel did serve,” the court did not err in id. at questions necessary a fair void dire. If than “relating rejecting proposed voir dire proposed questions are far afield voir dire so [prospective jurors’] religious beliefs and at- obvious, up significance it is that their is not authority.” at 390. toward Id. titudes why explain trial court counsel to should be given. v. Van See United States Gordon, 634 F.2d 639 States v. 16. Cf. United Drunen, (7th Cir.), cert. Cir.1980) (defendant’s (1st status as “certified 684, 42 L.Ed.2d Republican “deco candidate” and Presidential (1974); Sheedy, Mo. Rose v. infantry inex veteran” was not rated combat 134 S.W.2d trial); tricably up mail-fraud Unit bound 15. This is not a case in which defendant’s Perez-Martinez, F.2d 365 ed States v. only in connection controversial views surfaced nationality (defendant’s 1975) Cuban Cir. impermissible defense. First —and an up inextricably with trial for con bound not colleague’s contrary dissenting conten- to our Velarde, heroin); People spiracy v. to deal in brought itself out these tion —the (defendant’s 374, 104 616 P.2d 200 Colo. Inevitably, appel- in its case-in-chief. issues inextricably up with bound was not atheism Second, deal with them. lant’s defense had to appellant’s robbery trial). to he had intended defense—that only speak spectators and to guage m the a dice to the accused” in the context of vоir gallery, “disturbing Senate peace type”, dire, Khaalis, offense. 335, when supra pro- at “the testing cedure impartiality used for [does In summary, when the court asked the a reasonable assurance that not] create[] prospective jurors they knew of discovered if prejudice present.” would be biased, they might reason they be were Dellinger, supra 367.18 The procedure at of appellant’s unaware views political used at trial appellant’s facts created no such affiliations —controversial which inev- itably would come before them at trial. We assurance. We therefore reverse conclude, accоrdingly the trial lant’s conviction and remand for a new its using abused discretion its “regular trial.19 dire” voir rather “tailoring than its exami- Reversed and remanded. to fit the circumstances the case ” nation] Unit- upon jurors will sit .... KERN, Judge, dissenting: Associate Baker, ed v. 198, Cir.1980).17 deference, With all the majority’s rever- sal of this misdemeanor conviction for dis- reject government’s We con turbing Congress in session while enshrines that, tention even if the trial court abused into the of Fame Chutzpah partic- Hall by conducting its discretion an inadequate voir dire ularly objection made examination, by appellant ironic appellant’s rights trial, were not substantially alongside conduct of his such prejudiced by the other court’s action. There is “substantial preju- gall presented by fabled defenses of as that judge required demonstration, arising political 17. The trial was not to examine out of a see prospective jurors subjects 366-70, the by Dellinger, supra on the covered a at neither was it politically appellant’s the rest of act, oriented completely involving case a non-violent questions, since these were not “rea such as election See fraud. Connors v. United sonably calculated to discover actual and 951, 408, 39 L.Ed. 1033 likely Robinson, prejudice.” supra source of (1895). ‍‌​‌​​‌‌​‌​‌‌‌‌‌​​‌‌‌​​​​‌‌​‌‌‌​‌‌​​​​​​​‌‌​‌​​‌‌‍trial, government emphasized At (whether 475 F.2d at 381. Question behavior; appellant’s the violent element of “negative feelings” to argument example, jury, rebuttal people “life-style” appearance ward whose prosecutor compared to the Iranian unconventional) were was not aimed at reveal holding students who at that time were tages hos- ing sufficiently Ham, prejudice. serious See embassy in the American in Teheran. supra, 527-28, U.S. 93 S.Ct. at 850-51 (prejudice against people with beards is not 19. Appellant Mayo’s claims that Officer testi constitutionally significant). Dellinger, But see mony pro that he heard the President tern of supra (trial at 369-70 court abused its discre gavel pound Senate his call for order refusing questions eliciting pro tion to ask hearsay. Hearsay was inadmissible evidence spective jurors’ hair, “long attitudes toward being a “statement offered as an assertion to beards, styles clothing, unorthodox and life dif show the truth of the matters asserted therein.” fering own”). 25 and [their] Questions (2d 1972); (whether 246 at 584 ed. § 28-31 had worked McCormick, Evidence States, D.C.App., Department Foreign for the see State Jenkins Service or “Hearsay organizations (1980). had been members of veterans’ A.2d includes nei , societies, lobbying groups, “fraternal or other” ther non-assertive conduct nor assertive state organizations) appear or anti-communist prove what ments not offered to is asserted.” discovering significant prej have been aimed at supra, 250 at 599-600. The Pres § McCormick, against appellant udice—bias because of his gavel pounding ident’s non-assertive political ques beliefs or these affiliations —but “statement,” and the words conduct —not sweeping; tions were too sonably were not “rea accompanying were his act not offered to show prejudice calculated” discover therein,” “the asserted but truth of the matters against appellant his views because of rather to draw an inference to allow the Robinson, supra or associations. See spoken. from the fact that the words were See at 381. Glasser, United States v. (2d Cir.), triggered by note that We Mayo’s testimony was 30 L.Ed.2d 95 appellant’s could views have been hearsay, trial court not and the did err heightened by the element disorderliness in admitting it. Although conduct. was not a crime, prosecution for a violent such as assault 55-56.) . (Record war parents

the child who murdered and clear ...”2 at his sought ground then on the was an ac- mercy gallery, he When he arose in the Senate orphan. testimony (Record 58), at cording to own there, he down shouted “those millionaires irony appellant’s Consider of conten- the III,War don’t planning are a World tion in this case: that his fine for $300 are many care how millions incinerated.” in re- yelling gallery the should be Senate the light In the recent statement versed at voir judge because the trial failed dangers the of nuclear Bishops Catholic on inquire jurors dire to if specifically of the war, view con- appellant’s political of alarm they might have a against cerning appear put nuclear war would to lant asso- political because of his views and angels, the the figuratively him on side of ciations, the who yet appellant it was jury so far as the was concerned. speaking, over ob- presented jury, government to the trial, jection both and the during before argument (Record Defense counsel in his very matter of his and affili- views 99), of the at continued the theme 53-54.) at (Supp. ations. Record 13 and defense, the fact pointing out to the veteran appellant Purple was a Heart that testi- appellant upon It was who insisted country in honorably had served his who fying, prosecutor’s over the that he protest, then, enduring the Vietnam after War was a of the twice-wounded combat veteran combat, a fierce the crucible of became honorably Vietnam who was dis- War Thus, peace. appellant’s advocate world disability joined with a and then attorney trumpeted closing argument Against be- the Vietnam Veterans the War 100-02): (Record at cause he to the Vietnam “wanted еnd 53-54.) (Record War.” at even Surely, gets got [up he he And accused because appellate judges cloistered can discern I said don’t want gallery and in] world, today’s to a decade contrast war, more I don’t want more ago, knowledge didn’t (Record 10Ó.) war.. .. at He joined an veterans organization combat would listen because think Senators dedicated to is scarce- end Vietnam War at, being when he was in Vietnam shot anger to ly apt prejudicial drive to then .... listening weren’t Senators defense against appellant.1 Certainly, more up says no person gets A appeal appellant’s counsel recognized accident. wаr? We have had nuclear about it organization away as he hammered over We have Let’s not have a War it. 99.) jury. (Record to the at Let’s not another been to Vietnam. have testi- appellant’s The record also contains (Record 101.) one.

for World War III speak it on wanted the American that the a statement about mony were day to the that he came to the Senate planning day his arrest American before) and involved in and did World because he and the United States (after people people War having to understand ... and “wanted to at all care III preparing “cased” ... make on I the war? Yes. What’s let events We’ve World Maybe who Is he ^[*] don’t who are got trying it’s ^[*] pass. the Roland Corderos to do trying enough ^[*] wrong (Record something ^[*] interest, people show those disturbing here? 102.) ^[*] on trial. who prevent of the of us ^[*] just return majority, appearing people about fact that millions of World post-Pirst in a nu- Red Scare around the world were killed ... Great Indeed, Appellant’s at trial comes close or- 2. defense 1. one of the leaders of contendere; ‍‌​‌​​‌‌​‌​‌‌‌‌‌​​‌‌‌​​​​‌‌​‌‌‌​‌‌​​​​​​​‌‌​‌​​‌‌‍just gover- being plea he ganizations of nolo elected effect a lieutenant Post, standing speaking Washington the Sen- No- while admitted nor Massachusetts. caring without ate was session vember 57.) (Record Senate heard him or not. War or at era, least the so-called McCarthy reversal, For longer no must there be a seizes upon the words showing by “revolution” and the the aрpeal accused on that the “Revolutionary Communist Party” which trial court has abused its discretion in the were contained in a typewritten, single voir dire’s conduct to the “substantial preju- paper sheet of (Supp. 2), Record II at accused,” dice of the as enunciated in lant threw into the air in the before Now, Khaalis. majority the has imported he could ejected. be arrested and The ma- word-for-word from the federal Seventh jority posits that appellant's “advocacy Circuit Appeal’s Court of decision in the revolution” and “membership in the Revolu- trial celebrated of Abbie Hoffman and the tionary Communist Party,” depicted as Yippies, among others, so-called for riots sheet,3 the typed are matters about occurring in Delling- United the population at large strong er, harbors feel- Cir.1972), a new ings. Accordingly, majority, the test ignoring determining whether the trial court the fact that paraded before in the District of Columbia has erred in jury his membership organization conducting in an voir dire. The majority now former pronounces: American soldiers who had served their country in Vietnam and his generally There is “substantial prejudice to the ac- popular political views concerning world cused” in the context of voir dire when peace, concludes reversal is necessary be- the procedure used for testing impartiali- cause of the trial court’s failure to ask the ty create a reasonable assur- [does not] [ ] could be ance prejudice would be discovered light present. if [Supra quoting Del- views or associations.4 linger, supra at 367.] particular sum,

Under the here, In according circumstances majority, I am unable to agree that accused appellant suf need not show that the voir dire he fered prejudice,” challenges “substantial which is the has caused him prej- “substantial udice;” only ground under the decisional law of the now the must demon- District of Columbia for strate with upholding not “reasonable assurance” trial judgе possible prejudice exercise of the considera accused would ble discretion vested in him in his have been discovered by conduct the voir dire em- of the voir dire. ployed by judge This test was announced trial. Since by this court recently majority is overruling prior as 1979. Khaalis v. line of deci- sions D.C.App., by 408 A.2d this court culminating in our 1979 (1979), Khaalis case and the appellant profited 1059, 62 L.Ed.2d 781 behold, Lo his own reference at trial politi- to his however, only cal does the associations and majority ignore affiliations and hence the fact that appellant incurred no substantial played upon po from the conducted, litical views voir dire I assoсiations before must dissent. despite government protests, but the majority now changes scope of re

view to be used henceforth this court for

complaints concerning the conduct of the

voir dire. Thus, crudely questions lettered sheet refers to Viet- 4. The court asked standard at voir possibility dire, nam referring “disturbing and the of World War III and this case as a point: peace type” Appellant presented reads at one of offense. eight-page Proposed before trial an Dire Voir People got revolutionary we to make it a composed Examination some 55 against civil war them. Follow the leader- propounded prospective jurors. (Record be ship Revolutionary Party Communist 6-13.) and be determined to make revolution to end system misery. this

Case Details

Case Name: Cordero v. United States

Court Name: District of Columbia Court of Appeals

Date Published: Jan 31, 1983

Citation: 456 A.2d 837

Docket Number: 80-594

Court Abbreviation: D.C.