Jаmes ROSS, Jr., Petitioner-Appellee, v. Theodore RISTAINO et al., Respondents-Appellants.
No. 74-1222.
United States Court of Appeals, First Circuit.
Dec. 31, 1974.
Michael G. West, Springfield, Mass., by appointment of the Court, with whom Kamberg, Berman & Hendel, P. C., Springfield, Mass, was on brief, for petitioner-appellee.
Before COFFIN, Chief Judge, McENTEE, Circuit Judge, and MOORE,* Senior Circuit Judge.
McENTEE, Circuit Judge.
We are required in this case to decide whether it was a denial of due process, where the defendant was a black mаn accused of violent crimes against a white security officer, for a state court judge to deny a defense request to interrogate prospective jurors specifically on the issue of racial prejudice.1
The Commonwealth of Massachusetts appeals from a memorandum and order entered by the district court granting a writ of habeas corpus to appellee, who was convicted of armed robbery, assault and battery by means of a danger
“The questions propounded to the jurors in the present case were directed to the general issue of bias and prejudice, and were far more extensive and carefully worded than those given in Aldridge [v. United States, 283 U.S. 308, 51 S.Ct. 470, 75 L.Ed. 1054 (1931),] and Ham. They were exemplary in every respect, except the failure to specifically direct the attention of the jurors to the issue of racial prejudice. In substance, they were no different than the ones given in Ham. The fact that one juror responded that he suffered from racial prejudice and was excused does nоt cover the situation, because his perception cannot be imputed to the twelve who were chosen.
“In the instant case, there was a white victim. The offense in Ham was victimless, i. e., possession of marijuana. The likelihood of infection of the verdict was at least as great as it was in Ham. . . . The petitioner had a constitutional right to have the issue of racial prejudice specifically called to the attention of the prospective jurors on the voir dire examination.”
In Ham v. South Carolina, supra, the defendant was a black civil rights leader charged with possession of marijuana. His defense was that the police were out to get him and were framing him on the drug charge. His counsel requested the judge to ask on voir dire two questions designed to ferret out any possible racial prejudice against the defendant.3 The judge did put three general questions to the prospective jurors on the issue of bias, but he refused to ask any question directed specifically to racial prejudice. The Supreme Court, in а unanimous opinion, held “that the Fourteenth Amendment required the judge in this case to interrogate the jurors upon the subject of racial prejudice.” 409 U.S. at 527, 93 S.Ct. at 850. The contours of the Ham decision were not sharply defined by the Court. Justice Rehnquist‘s opinion did not explicitly state that whenever a black defendant requests the trial judge to inquire specifically on the issue of racial prejudice on voir dire the trial judge must do so. Nor did the opinion explicitly state that the defense request for specific questions directed to racial prejudice need only be honored where the defendant was a civil rights leader or other “special target of racial prejudice,”4 which was the construction the Supreme Judicial Court gave Ham.5 Commonwealth v. Ross, 1973 Mass.Adv.Sh. 839, 296 N.E.2d 810.
Our dissenting brother suggests that the rule of Ham should only apply to cases brought to trial after the date Ham was decided. However, we do not feel the writ should be denied on the ground that Ham should not be given retroactive application. The Supreme Court implicitly decided that Ham applied to this case when it summarily vacated the judgment of the Supreme Judicial Court of Massachusetts and remanded the case to that court for reconsideration in light of Ham. See Ross v. Massachusetts, 410 U.S. 901, 93 S.Ct. 968, 35 L.Ed.2d 265 (1973).
By deciding in this case that the trial judge should have questioned the proposed jurors specifically on the question of racial prejudice, we do not hold that he had to ask the specific questions sought by Ross‘s counsel. “[T]he trial judge was not required to put the question in any particular form, or to ask any particular number of questions on the subject, simply because requested to do so by petitioner.” Ham v. South Carolina, supra, 409 U.S. at 527, 93 S.Ct. at 850. See Featherston v. United States, 491 F.2d 96 (5th Cir.), cert. denied, 417 U.S. 971, 94 S.Ct. 3176, 41 L.Ed.2d 1142 (1974). The trial judgе has broad discretion as to the questions to be asked regarding racial prejudice.6
The writ of habeas corpus shall issue unless within 90 days from the date of this opinion the Commonwealth has either instituted proceedings to retry the petitioner or applied for a writ of certiorari. If certiorari is sought and granted, the issuance of the writ of habeas corpus shall be stayed pending further order of the Supreme Court. If certiorari is sought and denied, the writ of habeas corpus shall issue unless the Commonwealth has instituted proceedings to retry the petitioner within 30 days after the date certiorari is denied.
So ordered.
MOORE, Circuit Judge (dissenting).
The sole issue on this appeal relates to the voir dire examination of prospective trial jurors during which the trial judge denied a specific request on behalf of the petitioner, Ross, to ask a particular question, accurately stated by the majority as follows: “Are there any of you who believe that a white person is more likely to be telling the truth than a black person?” No question was sought by Ross’ cоunsel addressed to prejudice against Ross as a black. Other questions addressed to prejudice against blacks were requested by co-defendants not involved on this appeal. In my opinion the request of Ross’ counsel cannot be given the broad interpretation that the majority has given in saying that it was “a defense request to interrogate prospective jurors specifically on the issue of racial prejudice.”
The majority hold, as did the District Court, that the failure of the trial judge to question “the рroposed jurors specifically on the question of racial prejudice” amounted to a denial of constitutional due process. In so holding, they rely primarily on the recent Supreme Court decision in Ham v. South Carolina, 409 U.S. 524, 93 S.Ct. 848, 35 L.Ed.2d 46 (1973), although they concede that the Ham opinion “did not explicitly state that whenever a black defendant requests the trial judge to inquire specifically on the issue of racial prejudice on voir dire the trial judge must do so.” As for this and the other points made, we come to rеst with the conviction that they would apply equally to the case presented in Ham.
Starting with the question, which the majority quite accurately states this litigation involves, “Are there any of you who believe that a white person is more likely to be telling the truth than a black person?“, I find no relation between such a question and the ultimate desideratum, namely, to uncover racial prejudice against a black defendant. Such a question could not be properly answered unless prosecution and defense read to the prospective juror the name and color of all witnesses they intended to call. Even then it would be impossible to obtain a juror‘s pre-trial commitment as to a witness’ credibility until the particular witness had been seen and heard. Will it be constitutionally impermissive to deny interrogation as to a prospective juror‘s feelings as to the credibility of a witness of the “X” race, nationality or religion? Illustrative of the problem are questions proposed by petitioners’ co-defendants:
“18. Do you have any feelings either for or against persons of the Black race who wear the Afro style haircut and long side-burns?” (App. p. 56) or
“7. Do you feel that this increase (in crime) is due primarily to blacks in the city?” and
“12. Do you object to the number of blacks and Puerto Ricans on the welfare rolls in the city?” (App. p. 58.)
The other forty questions sought to be asked by these co-defendants were undoubtedly intended in good faith by counsel to ferret out the more intimate prejudices of the panel which was to pass judgment on their clients but query, did not the state trial judge probe sufficiently deeply, as a practical matter, in inquiring “Can you under oath return a fair and impartial verdict based upon the evidence that you hear in the courtroom and not upon any extraneous factors; no bias or prejudice or personal interest in the case, and no prejudice of any kind.” (App. p. 494.)
Petitioner argues that the state judge‘s failure to focus the attention of the prospective jurors as to any racial prejudice they might entertain is “as a matter of constitutional law” reversible error. If this is to be the rule by judicial legislation, in fairness to trial judges, state and federal, the rule should only be so promulgated for future cases.
The District Court concedes that the questiоns propounded on the general issue of bias and prejudice were exemplary in every respect “except the failure to specifically direct the attention of the jurors to the issue of racial prejudice.” However, if there are to be rules they should be clear and capable of objective application. In other words, it is easy to understand and apply a rule which requires a trial judge in every case in which there is a black defendant to inquire of each individual juror whether he would be adversely prejudiced against such a person because of his race. But is the trial judge duty bound to ask such a question in the absence of a request? If he asks the question sua sponte, the appeal in all probability will be on the ground that he injected the racial issue into the case—hence reversible error. If he fails to ask the question, the same result will obtain and, if counsel fails to make the request, incompetence of counsel will be the charge on the habeas corpus application.
A “next” trial can be assumed. Only a few years have elapsed since the first trial. The witnesses and their whereabouts in all probability are known. The facts supporting guilt as found on the first trial may be read in thе two opinions of the Massachusetts Supreme Judicial Court.7 But juries, not courts, are to determine guilt or innocence and the method of selection of the jury will be the most important element initially.
Neither Aldridge, Ham, supra, the District Court opinion nor this court‘s opinion will be of real value as guidelines. Aldridge and Ham indicate that questions regarding racial prejudice must be asked. And, although Ham and the majority state that the questions need not be “in any particular number” or form, Ham, 409 U.S. at 527, 93 S.Ct. 848, only an appellate court will be able to decide whеther the future trial judge will have properly exercised that “broad discretion” with which appellate courts so liberally endow him.
If the courts are satisfied to accept “No” to the single question “Are you prejudiced against blacks?” and this colloquy is considered to be constitutionally sufficient, such a question should be permitted if counsel should choose to request it. But the courts are not so easily satisfied—and probably properly so. Few jurors will reveal the innermost workings of their minds—particularly in public. The mere “obtaining jurors’ assurances of impartiality is insufficient [to test that impartiality].”8 The courts have said that a prospective juror‘s eligibility “should not be adjudged on that juror‘s own assessment of self-righteousness without something more.”9 10
It is all very well to speak of a standard to be used in the exercise of discretion in passing upon requested inquiries as meeting “the essential demands of fairness.” Aldridge, supra, 283 U.S. at 310, 51 S.Ct. 470, but, what these demands may be, will only be known to the trial judges years later in the opinion of some appellate court.
Take for example a single instance derived from this case because it falls into the category of the “something more” field of inquiry. A proposed question submitted to the trial judge here followed the questions: “Do you have children? Do they go to public schools?” and was:
“16. If in private schools, is this a result of your feelings towards the number of blacks and Puerto Ricans in the school system?”
In view of certain situations recently reported in the public press existing in Eastern Massachusetts with respect to the public schools such a question might well be included in a probing group, including “Are you at all nervous about walking the streets of your town or city after dark?” Almost unlimited questions along this line can be conjured up for obtaining a true picture of the potential juror‘s mind. To obtain such a picture the voir dire might well more properly be relegated to the psychiatrist.
However, our present concern must be this case. We are given some 120 pages of transcript devoted entirely to the trial judge‘s efforts to obtain an impartial jury. Sucсessive panels were interrogated. The defendants who are black stood before the prospective jurors. The trial judge was most specific as to “bias or prejudice” generally. The jurors knew when asked about prejudice that the defendants were black. Each juror
Finally, I am not unmindful of the fact that a distinguished court (the Massachusetts Supreme Judicial Court) has twice passed upon the issue of fair trial for this defendant. After the first affirmance certiorari was granted and the case remanded for reconsideration in light of Ham. That reconsideration was given and again there was affirmance. Certiorari was denied, three Justices vigorously dissenting, as appears in the opinion of Mr. Justice Marshall. 414 U.S. 1080, 94 S.Ct. 599, 38 L.Ed.2d 486.
The Supreme Court has stated that denial of certiorari has no legal significance—at least as to the merits of the controversy. Nor would I question the sound philosophy behind such an interpretation. Two cases in particular in which the opinions were written by Mr. Justice Frankfurter clearly demonstrate that “such a denial (of certiorari) carries with it no implication whatever regarding the Court‘s views on the merits of a case which it has declined to review.” Maryland v. Baltimore Radio Show, 338 U.S. 912, 919, 70 S.Ct. 252, 255, 94 L.Ed. 562 (1950). Again in 1953 the Supreme Court devoted itself in Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469 (1953), to the effect, if any, which might bе attributed to denial of certiorari. In a separate opinion (pp. 488-497, 73 S.Ct. 397) Mr. Justice Frankfurter set forth most specifically the reasons why no effect should be given to denial. The many instances cited of petitions “rarely drawn by lawyers,” “almost unintelligible,” inadequate records, no clear statements of the issues, the lack of importance of the issues, the mere numerical quantity of the petitions, all justify the conclusion that “The denial of a writ of certiorari imports no expression of opinion upоn the merits of the case, . . .”11 Quite rightly did the Justice say: “The reasons why our denial of certiorari in the ordinary run of cases can be any number of things other than a decision on the merits are only multiplied by the circumstances of this class of petitions.” Brown, supra, at 497, 73 S.Ct. at 441. However, this very expression is pregnant with the possibility as Mr. Justice Jackson pointed out in his separate opinion that “There may be circumstances so extraordinary that I do not now think of them which would justify a departure from this rule, but the ordinary run-of-the-mill case certainly does not.” Brown, supra, at 545, 73 S.Ct. at 429.
This small opening in an otherwise seemingly impregnable fortress entitles one to peer into the interior—a hypothetical conference chamber in which consideration of certiorari in this case is being discussed. Ham for all practical purposes had just been decided. The constitutional issue of the “black” question presented by Ross was so clear that a remand was directed in light of Ham. When Ross next arrived it was in the same garb—no other questions, no procedural issues, no diminution in imрortance of the only issue—just the same single “black” question. If there were any doubt on the subject Mr. Justice Marshall must have made all conscious of the singleness of the issue in his dissent, Justices Douglas and Brennan joining. Under these circumstances I would be
For these reasons—but primarily beсause I believe that the petitioner received a fair trial in Massachusetts—I dissent and would reverse the granting of the writ.
JOHN McENTEE
UNITED STATES CIRCUIT JUDGE