Jon E. Yount v. Ernest S. Patton, Superintendent, Sci--Camp Hill, and Harvey Bartle Iii, Attorney General of the Commonwealth of Pennsylvania

GARTH, Before HUNTER and Circuit STERN,** Judges Judge. District THE OPINION OF COURT HUNTER, III, Judge: JAMES Circuit E. Yount was Petitioner Jon convicted in degree rape 1966 of first murder and in the Oyer Court of and Terminer and General Delivery County, Jail of Clearfield Pennsyl appeal Pennsylvania vania. On direct Supreme Court determined that petitioner adequate warnings against had not received judg self-incrimination. It reversed the granted ment of sentence and a new trial. Yount, Commonwealth 435 Pa. (1969), A.2d (1970) (“Yount I”). court, After a retrial before the same degree was convicted of first again murder and was sentenced to life imprisonment. Pennsylvania Supreme The appeal judg Court on direct affirmed the ment of sentence. Commonwealth v. Yount, (1974) 455 Pa. 314 A.2d 242 (“Yount II”). petition filed a for a

writ corpus of habeas in United States Dis- alia, trict alleged, Court.1 Petitioner inter that his conviction had been obtained in violation of his fifth and fourteenth amend- privilege against ment self-incrimination and his sixth and fourteenth amendment right to a fair trial by impartial jury.2 George Schumacher, E. Federal Public The federal magistrate concluded that peti- Defender, (argued), Pa., Pittsburgh, ap- privilege against tioner’s self-incrimination pellant. violated, had not been but recommended ** Stem, Honorable Herbert weapon. J. United States Dis- See Yount v. Pat- and on the murder Judge ton, Jersey, trict (W.D.Pa.1982); the District of New F.Supp. sit- app. ting by designation. by petitioner, at All 134a. other claims includ- ing his attack on the use of character evidence petition initially 1. The filed in the Middle trial, allegation prejudicial charge by of a Pennsylvania, District of but was transferred to court, and his claim of ineffective assist- Pennsylvania pursuant the Western District of counsel, petitioner’s ance of were deleted on 2241(d) (1976). to 28 § U.S.C. motion after the district court determined that the claims had been to the courts petitioner’s allegations None other are be- Pennsylvania for their initial consideration. appeal fore us. Petitioner does not the district 874-75; See F.Supp. app. see rejection at 126a- challenges court’s of his to the trial 27a, degrees court’s 154a. instructions on the of homicide petition granted peti- men petitioner, learned that the victim’s tioner had been fair impartial denied a high teacher, school mathematics had on jury. App. at 124a-41a. The district court prior occasions been seen in a wagon station agreed issue, rejected on the former fitting description. 290-93; T.T. at magistrate’s recommendation on the latter Transcript of Proceedings August— issue, petition. and denied the Yount v. 1970, 17-18, (“T.P.”). 20-21 Patton, F.Supp. 873 (W.D.Pa.1982). approximately At 5:45 morning, pe- We agree with the district court titioner voluntarily appeared at the State petitioner’s privilege against self-incrimina- DuBois, Police Substation Clearfield conclude, tion was not infringed. We how- County. occupants of the substation ever, petitioner’s that the right to trial participated in the investigation of the fair impartial jury was violated. We homicide, 198-201, Rimer T.T. 203-05, will therefore that portion remand 255-56, gone sleep but had unaware of case to the district court. any link between the petition- homicide and 277; er or his vehicle. T.T. at T.P. at

I. SELF-INCRIMINATION 13, 20.4 Petitioner rang the doorbell. A awoke, trooper opened the door and asked Facts3 A. whether he could be of assistance. Peti- the During early evening April stated, tioner “I am the man you are look- body Rimer, the 18-year Pamela ing for.” The trooper petitioner asked high student, old school was in found repeat said, 11a; app. what he had T.T. wooded area near her home in Luthersburg, 250-51, and then asked petition- whether County. Clearfield There were numerous er referring was to “the incident in Lu- head, wounds about her apparently caused thersburg.” Petitioner yes. said The aby blunt instrument. There were also trooper petitioner then asked to come in cuts caused aby sharp instrument on her and be seated. throat and neck. her stockings One of was knotted and tied her around neck. An au- Leaving petitioner unattended, troop- topsy showed that she had strangu- died of er went to a back bedroom and roused a lation when blood from the throat and neck detective trooper. and a second The first wounds was lungs. Except drawn into the trooper informed them that “there was a for her stocking and shoe she remained man in the front that looking said we are fully clothed. The autopsy revealed no in- for him” in connection with the Luthers- dication that she had sexually been assault- 276; burg incident. T.T. at T.P. at See 6. ed. The first then trooper returned to the front office petitioner where had removed his Neighbors gave police description state coat, gloves. trooper hat and The asked wagon of a station which had seen at petitioner for his approximately the time identification. Petitioner place and at which gave wallet, the body E.g., trooper was Testimony found. beginning 17,1970,

Trial trooper removing petition- November at 143- returned after (“T.T.”). Sometime after two er’s operator’s o’clock on automobile license. T.T. at the morning April 29, police- state magistrate adopted 3. The Appellant’s federal the statement of the crime. Brief at 33. The trial given Pennsyl- of the facts found, however, in the petitioner ap- court that when Supreme II, vania Court in Yount 455 Pa. at peared at the substation “there was no knowl- 306-08, App. 314 A.2d at 244-45. at 128a. edge part on the of the Police the substa- [at adopt We too that statement. In addition we loоking that he ‘was the one tion] ” directly on occasion cite to the record for cer- App. Pennsylvania for.’ at 754a. The Su- supreme tain details omitted court’s preme policemen Court stated that the state summary. noted, Unless otherwise those de- petitioner’s who had discovered that automo- undisputed. tails are neighbors’ description bile fit had been working entirely separately and in a different

4. Petitioner asserts that before he came to the II, 309-10, 314, location. Yount 455 Pa. at substation, policemen the state there knew that A.2d at he and his vehicle had been linked to the scene thereafter, argu Shortly rejected the detective and the court the Commonwealth’s were volunteered. office. ment that the confessions trooper second entered front talk, willingness [pe indicating “After The petitioner’s detective was handed about details of interrogated petitioner license and learned that was Jon titioner] crime, and his formal confession fol 12a; 259, 262-63, App. Yount. T.T. at 279-80, Pa. at 256 A.2d at 465 lowed.” 435 requested petition- 271. The detective original); see 435 Pa. at (emphasis er be seated inside a smaller adjacent of- (Jones, C.J., concurring). 256 A.2d at 468 fice, gave petitioner and something to eat. The court found the confessions invalid and I, Yount Pa. at 256 A.2d at granted a new trial. 435 Pa. at 465; asked, T.P. at 15. The “Why detective at 466. A.2d looking you?” are we re- Petitioner plied, girl.” Upon hearing “I killed that petitioner the second trial re- Prior to answer, inquired, detective “What that his oral and written state- quested girl?”, petitioner responded, “Pamela The trial court on suppressed. ments be Rimer.” authority suppressed of Yount I confessions, question written as well as the asked, you detective then “How did you girl?” “How did kill this and its answer. answered, girl?” kill this Petitioner “I ruled, however, peti- The trial cоurt struck her with a wrench and I choked her.” tioner’s statement “I killed girl” At time the detective undertook to girl” his identification of “that as “Pamela rights. advise of his The detec Rimer” were admissible under Yount I. tive, however, failed to tell of his App. 748a, 755a. It peti- concluded that right court-appointed counsel if he could tioner’s statements were peti- made before not afford attorney. his own The detective custody. App. tioner was in at 755a. then interrogation conducted an regarding the appeal Pennsylvania Supreme On the details point of the crime. At some the not petitioner Court did determine whether trooper second petitioner searched and con was 267-68, “custody” when he made the state- penknife. 265-66, fiscated his T.T. at II, ments to the detective. Yount 455 Pa. 2-73.5 Petitioner gave his first writ 27 4, at 311 n. 314 A.2d at 247 n. it 4. Instead ten confession to the detective. Later the ruled that the were volunteered statements district attorney, giving similarly after in product interrogation. and not the of The adequate warnings, questioned petitioner question, court said that the detective’s first and obtained another written confession. “Why looking you?”, simply are we was Proceedings B. Proceedings State and Be- extemporaneous “of response neutral low character.” 455 Pa. at 314 A.2d at 246. petitioner Before the first trial moved to In the question court’s view the detective’s suppress his statements and confessions as girl?” respond- “What after Arizona, violative of Miranda v. ed, girl,” merely “I killed that was “a clari- 86 16 fying The inquiry.” supreme Id. court hearing After' a the motion was denied. questions therefore concluded that the were petitioner’s The statements and confessions calculated, not expected likely or to elicit an were admitted in the first peti- over incriminating 455 response. Pa. objectiоns. tioner’s A.2d at 246. Pennsylvania Supreme The Court held In his cor- petition for a writ of habeas warnings given that the by the detective pus, petitioner again argued that his fifth and district attorney inadequate were under amendment privilege fourteenth I, 435 Miranda. Yount Pa. at 256 A.2d against self-incrimination had been violated J., (Roberts, at 465 plurality opinion). by responses The the admission of his to the occurred, argues police petitioner’s 5. Petitioner the state- to when that the search asser- penknife rejected implicitly searched him and confiscated his be- tion in the factual has been asked, “Why looking findings holding fore the detective are trial court and we of the state you?” court, by Appellant’s Although fairly supported Brief at 32. the district and is not explicit findings there have been no factual as the record. (1974). Where, here, ruled L.Ed.2d 277 the questions. magistrate detective’s has properly openly that individual not been arrested responses admitted made, when when the are responses, after those statements police recognized “the something must be done by said or participation his present to confess authorities, either in ap- their manner of crime, presence did his become custodial.” in the tone or extent of their proach or con- App. magistrate at 132a. The did not questioning, indicates questions sider in- whether the constituted request would have heeded a to de- terrogation. court adopted The district part. magistrate’s findings. F.Supp. at 875. Hall, (quoting Id. at 799 United States C. Discussion (2d Cir.1969), 421 F.2d 90 S.Ct. unless government Miranda held that Mathiason, (1970)); Oregon accord has rights, advised a defendant of his it 711, 714, L.Ed.2d cannot stem- put into evidence statements curiam); Mesa, (1977) (per see F.2d ming from the interrogation” “custodial (opinion Seitz, C.J.). at 587 n. When defendant. 384 U.S. questioning occurs in a station we police Supreme 1612. The Court defined “custodi- must scrutinize circumstances surround al interrogation” to mean ing the statements with extreme care for law questioning initiated enforcement psychological compulsion taint of person officers after has taken been Steigler, intimidation. 496 F.2d at 799. into custody deprived or otherwise his making determination, our we are freedom in any significant way. of action Supreme mindful Court’s caution (note omitted). Id. “custody” must not be too read broad- argues appeal Petitioner ly: girl” statements “I killed that and “Pamela officers are not required ad- [P]olice Rimer” products must be excluded as the warnings everyone minister Miranda custodial He interrogation. contends that they question. require- whom Nor is the questions detective’s “inter constituted warnings ment imposed simply rogation,” and police asserts the state place in questioning because the takes men would not have allowed him leave to house, questioned station or because the questions substation when the were person suspect. one whom police posed. We need not consider whether Mathiason, 495, 714; 429 at at U.S. 97 S.Ct. questions “Why looking you?” are we for Steigler, In partic- accord 496 F.2d at 799. girl?” “What constituted interrogation ular we note the Court’s statement in Mi- under Miranda we that conclude randa: petitioner in “custody” was not after until requirement police stop There is no that he had questions. answered those See person enters a police who station and States, 341, Beckwith v. United 425 U.S. states that he wishes confess to a 345-46, 1612, 1615-1616, 48 96 S.Ct. L.Ed.2d crime, a person police or who calls the (1976); Mesa, 1 v. F.2d United States 638 confession other any offer a or state- 582, (3d Cir.1980) Seitz, 588 (opinion of ments he desires to make. Volunteered C.J.). of any by statements kind are not barred To whether determine an individ Amendment Fifth and their admissi- ual is in custody, “objective we use the test bility by holding is not affected our to- of whether the some ‘government has in day. meaningful way imposed restraints [a ” 478, (note 384 86 1630 S.Ct. at person’s] freedom action.’ v. Steigler omitted). Anderson, (3d Cir.) (quot 496 F.2d 798 Jaskiewicz, ing United v. voluntarily States 433 F.2d Petitioner came and on (3d Cir.1970), denied, 419 cert. 400 U.S. his own initiative to the substation. The 27 did not know (1971)), police S.Ct. state he was there. why denied, trooper petitioner 419 U.S. 42 The first left unattended Petition for Writ of for Petitioner on removed Brief on his own accord petitioner while 19-20, (“Brief 22-23 Corpus at Habeas testified clothing. outer The detective takes the Petitioner”). petitioner Instead he would posed questions he that before custody was in from that he position license petitioner’s operator’s have returned himself, “ei and that moment he identified so petitioner him to leave had and allowed or voluntary all the statements record ther T.P. at 15-16. On this requested. 19; Ap Id. at see involuntary.” that all were difficulty concluding we have no addition, we can Brief at 33. pellant’s the de custody not in when petitioner was that that the detective at no evidence asked, looking for find “Why tective are we additional “force or in used Alabama, juncture F.2d v. you?” Sullivan timidation, actual physical psychological, Mathiason, Cir.1982); 429 U.S. (11th see Islands 714; Texas, Virgin implied,” 394 or Government Orozco 1055,1060 (3d Cir.), cert. Berne, 412 F.2d 1095, 1096, 22L.Ed.2d 96, 24 L.Ed.2d Alabama, F.2d 396 U.S. Barfield v. 1114, 1118 Cir.1977). (5th The admission there response question to that

petitioner’s court and the federal Both the state trial his fifth and fourteenth fore did violate was concluded magistrate privilege against self-incrimi amendment custody responded, until he “Pamela not in nation. agreed. The district court After Rimer.” peculiar factual circumstanc- examining the response, “I killed Petitioner’s that the this case we cаnnot conclude es of incriminating. girl,” obviously highly erred. We therefore hold district court Although incriminating response such an self-incrimina- privilege against petitioner’s sus undoubtedly heightened the detective’s by the admission of tion was not violated picion, police compulsion, it is and not girl” “I killed that his statements strength police suspicions, places “Pamela Rimer.” Beckwith, suspect custody. 346-47, at 1616-1617. IMPARTIAL JURY II. FAIR AND believing suspect The more cause crime, greater committed the Proceedings Facts and A. State tendency interrogation to bear down in with a county is a rural County Clearfield atmosphere and to create the kind of seventy thou- approximately population significant triggers restraint Miran- with a total newspapers two sand served simply da .... But this is one circum- twenty-five approximately circulation of stance, weighed to be with all the others. 29, 1966, each of the April thousand. On Hall, Steigler, (quoting at 799-800 496 F.2d page front to the devoted its newspapers 545).

421 F.2d at petitioner’s appear- Rimer homicide and newspapers ‍​​​‌‌‌​​‌‌​‌‌​​‌​​‌​​​​‌​‌​‌‌‌‌‌‌‌​‌​​‌​‌‌‌​‌​‌​‍Both The detective re- ance at the substation. testified pre-trial coverage to gave front-page mained free to leave the substation when veniremen, asked, girl?” the detective “What T.P. at 5. the voir dire of proceedings, trial. In the DuBois Cour- explained pe- nine-day The detective after and the in sev- ier culminated gave girl Express publicity titioner the name of the and how bearing editions each he had killed her could the detective deter- enteen consecutive at least two carrying mine that banner headlines and petitioner merely was not Progress The seeking personal con- feature articles. Clearfield aggrandizement by coverage. fessing similarly to a sensational crime in he the case intеnse gave which related, Petitioner, public interest in the part. papers no T.P. at 3-4. on As the had hand, unprecedented; The allege proceedings does not was the other adjudged petitioner’s trial “anything Progress did different” after later police state stated, top news item of 1966.6 girl.” “I killed that he had See publicity publications. received in radio and and national 6. The case also broadcasts, as well as in out-of-state television coverage The was as detailed as it was change the venue. The trial court found extensive, 135a, app. see at 136a. The that after the initiation of the appeal the newspapers petitioner’s related in full de- newspapers merely publicized had the ac- tailed written as confessions well tions of the courts “without editorial com- testimony retelling homicide. ment App. kind.” at 748a-49a. It the. They petitioner’s also detailed defense of petition denied the for change of venue on temporary insanity, charge and evi- September dence rape, finally petitioner’s con- Jury began selection on November 7,1966, rape

viction on October of both days, and took ten jury panels, seven first-degree murder. 292 veniremen and 1186pages testimony.

Petitioner’s cause twenty-five continued to receive One hundred and of the 292 front-page coverage every step his veniremen were excused they because appeal. Banner headlines announced the properly. not been chosen Four others reversal of the conviction in I. The Yount were dismissed for cause they before reprinted full, dissent was in and a local questioned on the case. Of the 163 remain- program radio became a forum in which ing questioned, veniremen who were all but expressed callers their hostility petition- two had read of the case newspapers, in the er. approached, television, As the second trial it news- had heard about on radio or or paper coverage increased. The selection of were otherwise familiar app. with it. See 135a, each merited an article and often a 137a. When asked whether they profile. By case, the close of voir dire the two had discussed the had heard it dis- newspapers cussed, had printed sixty-six front-page express or had heard others their appeal innocence, articles on the and retrial.7 opinion petitioner’s guilt as to ninety percent over said that they had. See Petitioner was returned to Clearfield for 135a, app. at 137a.8 retrial judge. May before the same On 1970, petitioner requested of ven- questioned Of the 163 veniremen on the ue. publicity case, He claimed that which 121 were dismissed for cause.9 Nine- murder, county had saturated the since the ty-six of those 121 veniremen were success- and the continuing discussion of the case fully challenged they after testified that residents, among made a fair trial in they Clear- had firm and opinions10 fixed which field County impossible. particular, peti- changed regardless could not be of what alleged tioner the dissemination of presented. app. evidence was at 135a & prejudicial information outside of evidence n. 13.11 An additional of the 121 venire- widespread was so it could not be men were for cause after they dismissed eradicated from the minds potential jur- said that had an ors. prosecution argued response change only could if the could that the case had received so much publicity app. convince them to do so. See at 135a- across the state that it wоuld be useless to 36a & nn. 15.12 Thus 117 out of the 163 7. Petitioner’s second trial and his subsequent 86; 13; Appellee Dire at Brief for Brief for gain parole efforts to front-page coverage. retrial or Many also received Petitioner at 27-28. veniremen nonethe- pro- Those efforts have they thought petitioner less volunteered that community protest voked substantial in Clear- guilty was because he had confessed to the County. App. mag- field at 137a & n. 16. The crime or he had been convicted in the date, istrate found that even “at this late fifteen trial. first Other veniremen remembered hear- years crime, pub- after the there is considerable ing public express members of the feeling County opposition lic in Clearfield guilty. No venireman said petitioner.” App. at 136a-37a. thought petitioner guilty. he was not Ninety-six asked, 8. veniremen were and 88 re- challenged 11. Petitioner 90 of those 96 venire- sponded affirmatively. prosecution challenged men. The the remain- challenges, 9. Petitioner made 114 successful ing six. prosecution the seven. successfully challenged all 21 ve- 12. Petitioner by respondent, petitioner 10. After objection niremen. permitted was not to ask each venireman what Transcript opinion was. See his of Trial —Voir I questioned successfully veniremen were A. think I would hear it. about challenged they they for cause after said 410a, App. at 412a. Another prospective could before opinion not set their aside en- opinion said that had erased juror been tering the box. jury time, passage of but his daughter-in- depth When we veniremen dismissed for petitioner could convince them to do so.13 nireman, mit on voir sure of her own. She was that she had ion a total of questioned tioner, unsuccessfully you to would subject fair lucky group chosen prejudice verse to Mr. Yount? сhurch. take in case was hoped I the church Voir dire name was There Q. Notwithstanding [T]he A. Yes it was. They all A. Q. which Q. these ^[******] trial and he who indicated —but into the he didn’t Is this Would Why tell follow were also and create to the retributions community combine church people— would take —the stand would they on the dire built this on for this —countless gave have heard you, you wife they say yes challenged I your through. that they out of prejudice, a difficulty but could up —when get got come to people will be there we other case you those nine too many opinions from the nine they presence that box.14 the chair. called. a fair sentence. He’s sentiment. One ve- change only feel the 163 veniremen now since cause, —I indications of the minister, discuss for other people would they me and said what has in your you haven’t asked willing cause I have had a people in say with the 117 we had then it veniremen, carry retaliation it serving heard would been people find he had a testified you I an by peti- parish? expect asked: if the in the to ad- every court to be opin- their they that are ad- my be as finally had a one small indication was not unfair attended voir prior tion permitting spective jurors 197a. He 196a. The court noted “almost men trial randum venue. so much time and covered so many venire- that the into tioner. admitted that law duty voicing fixed. In fact the trial of this Id. from that Court can announced that any, talk in public concerning the trial After the veniremen cause. App. later testified motion. On for a change the jury court rejected petitioner’s or great as empanelled.15 Although App. all, still-incomplete opinion, present it has been 4 ours” that “particularly twelve again added that few extended examination of if not effect. first recall, time to the court had been great publicity dire, box, they and to the cause, 430a, judge at 194a-95a. jury fixed moved more than November of venue. all, jurors that already there the court orally denied would animosity in granting challenges Id. the publicity Juror No. 1 trial trial panel 527a-28a. years petitioner. and so far had reached found the opinions.” he had in a voir and two alternates time when was has for a he took carry court explained date had questioned was spectators dire had taken community three since the first seated had no been In toward left for written It exhausted, opinion an its lenient said said publicity quarters had not as little, App. App. as all memo- it some been peti- jury pro- this mo- but had as of in if peremptorily challenged challenged by petitioner, Petitioner six of and five were seated veniremen, those nine jurors. one was seated as a juror, remaining and the two were seated as alternates after had exhausted his pretty 15. Juror No. 1 that “it hard stated peremptory challenges. County here in read Clearfield something App. paper.” Juror at 202a. addition, we note that twelve other ve- “[y]ou hardly 2 said could it” on No. miss niremen stated that had had App. the radio and television news. at 212a. carry one time but claimed would not it “[ijt’s Juror No. 6 diffi- volunteered rather into the box. One of the twelve veniremen get paper cult to live in DuBois and cause, peremptorily was dismissed for six were Q. facts, he the case and others until you’re had read about heard But shown those but come not express opinions, you change your their had never would mind —is that 202a-04a, your opinion. App. position? to a “true” at 207a. Juror testified that he had No. have else nothing go A. Well—I to on. recently discussed case with others and App. at 271a-73a. After reiter- repeatedly had formed an firm opinion was not he ating that would evidence need to be App. and fixed and could set aside. at said, change opinion, Juror “I his Hrin don’t 212a-15a, The next jurors 218a-19a. of the know if that’s answer want.” you App. selected, 4,16 to be No. recently Juror had Finally yet again at 275a. when asked moved into nev- County Clearfield and had aside, whether he could set his opinion he er heard case. App. about the at 246a-52a. have to.” replied, App. “I 276a. The at Juror No. 5 she said that “remembered petitioner’s challenge court denied they had said he was and guilty before” cause, 274a-75a, at app. and petitioner did why petitioner getting wondered was a new not a peremptory challenge. exercise trial, opinion try but had no and would to 7 said Juror No. that he had formed an forget App. what she knew. at 259a-63a. opinion added that he not but was sure that Hrin, opinion he still an Juror No. F. had or that he James testified could forget 285a-88a, what he knew. at App. he opinion. had an He was asked: then Juror No. 8 298a-99a. had heard others Q. your Would be able to you change the case discussing opinion. and had had an regarding your opinion mind be- before App. at 304a-05a. testified that She she coming this case? That’s the present had none at “what except he said way you ques- I must have answer the he himself —that was guilty.” App. at tion. 309a-10a. She then said that she did not A. If presented the facts were so' I think she would consider in deliberations change definitely my could mind. what already she knew. at App. 312a-13a. Q. you say you Would could enter the Juror No. 9 said that thought peti- she had jury box innocent? presuming him to be guilty tioner was and why wondered a new A. It would be rather difficult for me necessary, was but added that now she to answer. to would have hear both before sides she Q. you Can еnter the an jury box with App. could decide. at 322a-24a. Juror No. open mind to prepared your find verdict opinions 10 had heard the of others and had evidence at trial and expressed his own. He admitted that it the law presented by Judge? would be difficult to strike he’d heard what A. I That could do. before, but stated that he felt ****** every prove should “have his opportunity App. 336a, innocence.” Juror 338a-39a. Q. you Did I understand Mr. Hrin No. 11 testified that he about the had read require you require would would some— case not App. but had formed opinion. something evidence or you before could 349a, 347a, 357a.17 change your you now have? A. If Definitely. the facts show After per- had exhausted difference from what I had originally had challenges, emptory jurors two and two al- believe, been led definitely I would challenges ternates were seated over his change my mind. replacement cause. Juror Both No. people talking 1, 2, find challenge out what the are about —at did not Petitioner Jurors Nos. people having hearing At least the local 7-11. on the habeas without some that, petition, petitioner explained reserving because he opinion.” or at least some that a would believed of venue App. potential Several 275a-76a. granted impartial jury and that a fair and gave appraisals publicity’s similar effect. County, impossible in he had felt Clearfield “probably good about as as we initially 16. The venireman selected No. as Juror 557a-58a; going get.” App. Ap are see personal 3 was later excused for reasons. pellant’s Brief at 16 - 17. Juror No. 3 testified that had plained, heard “raised so many about the but opinion. App. case had no at questions and the court exercised its discre- 362a-65a, 224a-28a. Alternate No. 1 stated tion to assure that there could no com- be he expressed which plaint jury empanelled.” about the final firm remained and fixed and which he Id. put would not out of his mind until evi- Pennsylvania Supreme The adopt- Court presented. App. dence was at 380a-85a. post-conviction findings ed trial court’s Alternate No. 2 said that she had a definite judgment and affirmed the of sentence on opinion which she could not dismiss and II, January 1974. Yount Pa. evidence change. App. could 311-12, 314 at 247. A.2d It ruled that the 395a-97a. Both seques- alternates were petitions change of venue were direct- jury; tered with the were told court, ed to the sound discretion of the trial that they were free to discuss the case with and found no abuse of be- discretion other when sequestered. cause “the record fails to disclose undue The trial lasted for four days. prose- The Id., community prejudice.” 455 Pa. at 312- cution quite a case different than 14, 314 A.2d at 247-48. it had at the first trial. Because of the B. Proceedings Below Pennsylvania Supreme holding Court’s I, Yount was unable to Commonwealth petition In his for writ of habeas cor- put into petitioner’s evidence detailed writ- pus, petitioner claimed that his conviction result, ten confessions. As a it chose not to was obtained in violation of right his to a retry petitioner on the rape charge. See fair, impartial, and “indifferent” jury. F.Supp. at 877. particular, he alleged that the trial court change in the defense was even more by refusing erred his motions for a change marked. Petitioner did not take the stand of venue.18 to retell and explain the events revealed in After two days evidentiary hearings, the now-excluded confessions. didHe the United Magistrate States recommended renew his claim of temporary insanity. In- petition granted. that the He noted that stead solely relied upon cross-ex- the case involved a sensational homicide in amination and character witnesses. a small rural community and that extensive After he again sentenced to life im- publicity had App. surrounded both trials. prisonment, petitioner filed a post-convic- 136a, 141a. He strong found “a commu- tion motion for a new trial on November nity hostility petitioner” toward the as well claimed, alia, He inter that the trial as “pervasive community knowledge of the court erred in rejecting several of his chal- facts of the case.” Id. at 141a. He charac- lenges for cause and in denying petitions his terized this case as one where change of venue. The trial court public has been fully informed of the rejected arguments those dismissed charged fact that the defendant had con- motion on January 1973. It stated that crime, fessed to the and that he had been there had been “practically no publicity” previously tried and convicted of during the both years four between trial and retrial, murder, rape and and where on retrial “practically public no interest” shown at the suppressed second trial confession is the pub- as few had at- but tended on days. some lic App. very at 751a. Voir remains much aware of the cir- time, dire had taken long such a it ex- cumstances surrounding the case and has argue Brief for Petitioner at appeal 25-34. Petitioner also Petitioner on does that the trial assigned challenges error to the denial of the denying challenges court erred in for cause for cause he made to Juror No. Juror No. jurors. Appel- to Juror Hrin and both alternate jurors. 16a; potential App. and four Brief disposition ap- lant’s Brief at 25. Our of this for Petitioner at 34-39. The district court peal unnecessary makes it to consider whether infirmity. F.Supp. no found constitutional arguments properly those are beforе us. at 882-83. Petitioner does not raise those chal- lenges appeal. n opinions venue, formed definite guilt as to the violated his sixth amend innocence of the defendant. ment rights.19 The sixth amendment guar antees to the right accused the to be tried magistrate Id. The calculated that over 70 Const, percent “by impartial of the veniremen and several of an jury.” U.S. amend. jurors they had testified that had a fixed VI. process Under due clause of the opinion, pall and stated that “a certain amendment, fourteenth the states are re cast upon minority those in the who testi- quired right by to effectuate that giving “a fied that had not formed a fixed opin- fair trial to the panel accused a of im ion and could judge the case on its merits.” partial, jurors,” Dowd, ‘indifferent’ Irvin v. view, Id. at 140a-41a. In his the empan- 717, 722, 1639, 1642, 366 81 U.S. S.Ct. 6 jury incapable elled of deciding the (1961); 751 L.Ed.2d accord Murphy v. Flori solely case on the evidence before it “but da, 794, 799, 2031, 2036, 421 95 U.S. S.Ct. 44 rather at required best the petitioner (1975), 589 “capable L.Ed.2d and willing to prove his innocence or at least overcome solely decide the case on the evidence be strong preconceived guilt.” notions as to his fore it.” Phillips, 209, Smith v. 455 U.S. Id. at 141a. magistrate The concluded that 217, 102 940, 946, 71 S.Ct. L.Ed.2d 78 petitioner could not have received a fair Sheppard Maxwell, 333, see v. 351, 384 U.S. trial by impartial in jury Clearfield 1507, 1516, 86 16 (1966). S.Ct. L.Ed.2d 600 County. The district rejected court the recommen- To satisfy that constitutional stan magistrate. dation of the Although the dard the ignorant need not be totally recognized court the community’s “substan- of the facts of a case. 421 Murphy, at U.S. case, tial knowledge” of the it decided after 799-800, 95 S.Ct. at juror 2035-2036. A an independent review of the record that case, who has read about the even one who publicity had not been vicious or exces- has conceived some notion as guilt to the sive. 537 F.Supp. at 877. It noted that the accused, innocence may nonetheless trial granted court had extensive latitude in serve “if the juror lay can aside his impres the voir dire and stated that the exhaustion opinion sion or and render a verdict based of the first panel of veniremen was not on the evidence in court.” Id. at 877, remarkable. Id. at 882. The district 799, Irvin, 95 at 2035 (quoting S.Ct. 366 court U.S. independent in its review also deter- 723, at 1643); 81 at mined that all S.Ct. see Martin v. point some said Cir.1981), Warden, 799, 804, could set aside opinions. (3d their 653 F.2d 806 Id. at Throughout 877-82. emphasized it denied, 1151, rt. 454 102 U.S. ce factual findings of the state judge court 1019, 71 (1982). L.Ed.2d 306 At the same were presumptively correct under 28 U.S.C. time, juror’s a assurance that he can enter 2254(d) (1976). The district § court con- box without an is not dis- petitioner cluded that had failed to 'carry positive if the accused can demonstrate “the his burden of establishing that preju- actual actual existence of such an dice had impossible. rendered a trial fair mind of the as will presump raise the C. Discussion tion partiality.” Murphy, 421 U.S. 800, Irvin, 95 (quoting 2036 366 argues Petitioner U.S. appeal on that the 723, exposure of the prejudicial 1643); venire to 81 S.Ct. at pre see United States publicity, and the refusal to grant Provenzano, (3d Cir.), 620 F.2d . 19 Petitioner in his brief separates challenge change his stricted to whether the refusal to venue pretrial publicity based challenge petitioner’s from his amounted to a violation of constitu- change 804; based on the rights. refusal to venue. We tional Id. at see Rideau v. Louisi- arguments (cid:127) inseparable. ana, 723, 726, consider the 1417, 1419, to be 373 U.S. 83 S.Ct. Warden, (3d Martín v. (1963). 653 F.2d 802-06 L.Ed.2d 663 There could be no consti- Cir.1981), denied, 454 U.S. 102 S.Ct. tutional violation unless was denied (1982). pretrial pub L.Ed.2d 306 right The impartial his constitutional to an licity petition and its pretrial effects publicity. were the basis for because of Beck v. Wash- 541, 556, er’s motions for quiry ington, 955, 963, of venue. Our in corpus proceeding (1962). this habeas is re- L.Ed.2d 98

cert, 804-06; United ex rel. Greene v. States (3d Jersey, New 519 F.2d Cir. 1975) curiam).20 (per challenging prejudice To determine whether actual corpus state court conviction in a habeas shown, has been we examine the “to- must proceeding particularly must shoulder a tality of circumstances” for indication heavy seeking burden. Unlike defendant petitioner’s not fundamental- trial was conviction, peti review of his federal Florida, ly fair. Dobbert argue simply tioner cannot because his jury has read of extra-record facts with a 352, (1977); see at 86 Sheppard, 384 U.S. high potential prejudice, for a federal court Dowd, at 366 S.Ct. 1517. In Irvin v. U.S. presume prejudiced. must that the was 712, 1639, (1961), 81 6 751 S.Ct. L.Ed.2d States, 310, Cf. Marshall v. United 360 U.S. Supreme Court established the method 313, 1171, 1173, 79 S.Ct. 3 L.Ed.2d 1250 which such examinations are conducted. (1959) (per curiam) (federal re conviction See, 800-03, eg., 421 at 95 Murphy, U.S. supervisory power). versed under A feder 2036-2038; Washington, at Beck v. S.Ct. reviewing al court a state conviction 541, 556-57, 955, 963-964, 369 U.S. 82 S.Ct. corpus habeas may presume prejudice only Dobbert, 8 L.Ed.2d 98 see also 432 in extraordinary cases where “the influence 302-03, U.S. at 97 at 2302-2303. S.Ct. media, of the news either in the community First, the Court in Irvin considered the ex- large itself, at or in the courtroom pervaded publicity tent and content of the because it the proceedings.” Murphy, 421 at U.S. was indicative “the of then current commu- 798-99, 2035-2036; see, e.g., S.Ct. at 95 Irvin, nity pattern thought.” 366 at U.S. Sheppard, 333, 1507, 384 86 16 U.S. S.Ct. 725-27, 81 at S.Ct. 1644-1645. The Court L.Ed.2d 600 (extremely inflammatory pub then opin- reviewed voir dire. In the licity given and a courthouse over to carni expressed by potential jurors ions and the val); Texas, 532, Estes v. 381 85 S.Ct. U.S. difficulty finding encountered in veniremen 1628, (trial 14 (1965) L.Ed.2d 543 in circus impartiality, who could at least claim Louisiana, atmosphere); Rideau v. 373 U.S. pattern Court discovered evidence of a 723, 1417, (1963) 83 S.Ct. 10 L.Ed.2d 663 727, prejudice in the Id. at 81 community. (twenty-minute repeatedly confession Finally S.Ct. at 1645. the Court looked to television). broadcast on publicity pattern prejudice see whether that case, this though it a high potential had reflected, testimony in the ‍​​​‌‌‌​​‌‌​‌‌​​‌​​‌​​​​‌​‌​‌‌‌‌‌‌‌​‌​​‌​‌‌‌​‌​‌​‍of the prejudice, did not utterly corrupt the trial in the ultimately seated box. Id. at atmosphere in Murphy, that fashion. See 727-28, Considering 81 at 1645-1646. S.Ct. 798, 2035; Martin, 421 at 95 U.S. S.Ct. at factors, all these then Court concluded 653 F.2d at 805. Petitioner therefore must jurors’ impartiality assurances of show publicity “that has been so ex Id., 728, had to be discounted. 366 U.S. at treme as to prejudice cause actual to a 81 at 1645. degree rendering a impossible.” fair trial 1. The Publicity Martin, 653 (emphasis added); F.2d at 805 Murphy, 797-799, See 421 U.S. at 95 S.Ct. The publicity preceding petitioner’s trial 2034-2036; Estes, 542-44, at 381 at 85 great potential U.S. was extensive and had 1632-1634; Martin, Irvin, S.Ct. at prejudice. 653 F.2d at As in petitioner’s ease was addition, 362, challenging pard, In 384 at 86 at U.S. petition a state conviction on particular, strength for a writ of because the nature and of a corpus, findings habeas the factual of the state question venireman’s is a mixed of law presumed peti- courts are to be correct unless fact, Irvin, 723, at U.S. at 81 S.Ct. by convincing tioner can establish evidence 1643, “independently we must evaluate the voir findings the factual were erroneous. 28 testimony impaneled jurors” dire of the and the Mata, 2254(d) (1976); see Sumner v. § U.S.C. Id.; Martin, 807; potential jurors. 653 F.2d at 539, 764, 449 U.S. 101 S.Ct. 66 L.Ed.2d 722 Sullivan, 335, 341-42, Cuyler see 446 U.S. time, (1981). duty At the same we have as a 1714-1715, 100 S.Ct. appellate indepen- federal court “to make an (1980). Shep- dent evaluation circumstances.” a “cause celebre” in a community rural newspaper was evidence); introduced into subjected which had barrage been to a D’Andrea, see also United States v. publicity concerning a sensational (3d murder. F.2d Cir.) (per curiam), 1172-73 Irvin, 1644; at U.S. S.Ct. at see U.S. 95 S.Ct. Murphy, 421 U.S. at at 2035. Finally, the publicity accurate, publicity, although That factual in revealed that petitioner at the first nature, comment, and without editorial see pled temporary insanity and had been Murphy, at 800 n. rape. convicted highly Such inflammato 2036, 4, 2037; Beck, at n. 82 ry great facts carried too prejudice risk of 963; prejudicial S.Ct. at revealed informa- directly to be offered as evidence. See tion “never Marshall, heard from the 312-13, witness stand” 360 U.S. at 79 S.Ct. at 1172-1173; the second trial. Sheppard, 384 U.S. United States ex rel. Greene v. 86 S.Ct. at 1519. New Jersey, (3d Cir.1975) 519 F.2d 1356 (per curiam). “The exclusion of such evidence First, the publicity disclosed that the jury meaningless in court is when the news me in the first trial had convicted dia makes it available to the public.” Shep the murder. New revelations could be so pard, 1521; see damning to an accused. United States v. 802, 421 at Murphy, U.S. 95 at S.Ct. Williams, 464, (5th 568 F.2d 471 Cir.1978). Possibly prejudicial even more was the dis The publicity was understandably most closure petitioner’s written confessions extensive potentially prejudicial and most and his testimony at the first trial. before during petitioner’s trial, first Rideau, 723, 1417, 373 83 U.S. S.Ct. 10 which years was four before his second 663; L.Ed.2d Haldeman, United v. States trial. The passage may of time work to 31, 559 (D.C.Cir.1976) (in F.2d 61 banc) (per highly erase unfavorable publicity from the curiam), denied, 933, 431 97 See, U.S. S.Ct. of a memory community. e.g., Mur- 2641, 53 see 802, 2037; also United phy, Beck, 421 at 95 U.S. S.Ct. at ex Doggett Yeager, 556, States rel. v. 472 F.2d 369 at U.S. 82 at In this 229, (3d Cir.1973). 231 case, however, The confessions and voir dire revealed that more testimony detailed in a highly percent unfavorable than 98 of the ques- veniremen light petitioner’s actions and thoughts at tioned remembered the case. In part this the time of the homicide. They were sworn was repeated due to the community expo- revelations of information petition which provided by sure newspaper coverage of the properly er’s admitted orаl statements sim appeal helped and retrial21 keep ply did not convey. Cf. Stroble v. Califor imprint fresh the of the case in the minds nia, 181, 195, 343 U.S. 72 S.Ct. of the public.22 important, 96 More the public- L.Ed. (1952) (confession 872 printed in ity attending the homicide and first court, though 21. The state trial the record con- 22. The trial court stated that “as far as this articles, front-page tained at least 17 said that public Court can recall” there concerning little talk in practically between trial and retrial “there was App. the second trial. at 196a. Ve- publicity given through no to this matter indicated, during however, niremen voir dire .except report news media ... that a new public that there had been discussion of the granted by Supreme trial had been Court.” case, particularly in last weeks before retrial. App. believe, however, peti- at 751a. We apparently Such discussion did not reach the by convincing tioner has established evidence attention of the trial court. the state court’s characterization of the spectators The trial court also noted that few coverage 2254(d) was erroneous. 28 U.S.C. § days, particularly had attended trial on some (1976). petition The record on this indicates during petitioner alleges voir dire. Because front-page published that 66 articles were cov- prejudice atmosphere” not from a “circus ering appeal and second trial. Cf. Sumner courtroom, 798, Murphy, see 421 U.S. at Mata, 449 U.S. at at 769 2035; Martin, S.Ct. at F.2d but from (federal record). and state court had identical facts, public knowledge of agree extra-record occa- magistrate We days with the who after two evidentiary hearings sional low attendance is a factor of limited significance. found publicity, second trial “was surrounded with degree” but not to the same as the first trial. App. at 136a. that 126 testimony of the voir dire shows so extensive and intensive been of the 163 implanted jurors, percent in the memo- or 77 firmly prospective the case was County they ries of residents. admitted that questioned, Clearfield veniremen into the box. carry would Petitioner has established that challenges itself excused on The trial court his trial had re publicity before second veniremen, or 72 for cause 117 of those prejudicial vealed information from his first they stated that percent of the after trial, officially information which was not opinion.24 could not set aside their against widespread him. The in evidence Only petitioner when had exhausted such dissemination of extra-record informa challenges enough could peremptory tion, rendering presump while not the jury Dobbert, be found to fill the box. Cf. tively prejudiced, poisoned “general at (per at 2302-03 U.S. community” peti of the in which mosphere exhausted); challenges not United emptory Murphy, tioner was retried. See Gorel, (5th 622 F.2d 103-04 States 802, 95 can S.Ct. at 2037. If Cir.) (same), cert. atmosphere show that caused actual 63 L.Ed.2d jurors, in the their prejudice assurances can impartiality disregarded. Id. In Irvin the trial court dismissed veniremen, percent, or 62 cause 268 of Dire 2. The Voir opinions concerning had fixed difficulty may provide of voir dire guilt. percent Almost 90 petitioner’s crucial evidence that the sentiments entertained those examined some community poisoned against were so an ac- at 1645. guilt. 366 U.S. at impeach cused as to the asserted indiffer- Supreme In those circumstances the Court jurors. Murphy, ence of his actual “readily prejudice against found length 95 S.Ct. at 2037. “The to which the to a degree that rendered fair go jurors trial court must in order to select 798, impossible.” Murphy, 421 U.S. at appear who to impartial” great be reveals a 2035; 95 at accord United States ex S.Ct. dеal jurors’ about those assurances of im- Denno, 364, rel. Bloeth v. 313 F.2d 368-69 partiality: (2d Cir.1962) (in banc) (31 38 veniremen of In a community where most veniremen questioned opinion), had formed cert. de will admit to a disqualifying prejudice, nied, 978, 1112,10 372 U.S. 83 L.Ed.2d S.Ct. reliability of the others’ protestations (1963). contrast, By Murphy 143 in may question; be drawn into for it is found no to on the Court basis cast doubt probable part then more are of they juror’s assurances of where impartiality a community deeply hostile to the ac- questioned, 20 of 78 veniremen or 26 cused, likely they may and more percent, they were excused because dis have unwittingly by been influenced it. 803, opinion closed an to Id. at 95 guilt. as 802-03, Id. at 95 at S.Ct. 2037-2038. 2037; Beck, 556, S.Ct. at accord 369 at U.S. case, (14 might 82 at 963 of 56 veniremen Irvin, In S.Ct. “impartial jurors this as in Martin, Irvin, opinions); have had 653 F.2d at 806 727, were hard to find.” 366 at U.S. (23 opin 81 at 1645. of 81 veniremen had long questioned S.Ct. In the and difficult 839, ions); Crisp, voir dire23 163 Brinlee v. 608 F.2d 845 questioned veniremen were independent (10th Cir.1979) (19 the case. Our ques- examination of 47 veniremen explained difficulty 23. The trial court the voir dire 24. The trial stated that in court selecting part leniency lengthy permitted was due in to his was was 195a, challenges App.at granting 194a-95a, cause. many questions. App. to ask so at evaluation, independent 751a. In of our each great 751a. The court did le- indeed extend by the 117 veniremen dismissed for cause niency questioning to in his of the expressed disqualifying preju- trial court had leniency veniremen. Such was commendable. fact, required dice which dismissal. as we circumstances, necessary It also under noted, have the trial court refused to dismiss explain away difficulty and does not expressed several veniremen who had a dis- voir dire as a real factor our consideration. qualifying prejudice, permitted and some of jurors. sit as them to

971 denied, cert. opinions), testimony tioned had 444 U.S. in the voir dire of the majority of (1980); jurors the twelve and two alternates ulti S.Ct. L.Ed.2d 733 Haldeman, mately at 70 in the box.25 All (29-36 placed 559 F.2d & n. 56 but one of the were with opinions), of veniremen familiar percent arguably had case, petition several recalled denied, explicitly rt. U.S. ce 2641, Eight er’s conviction or confessions. out of Mastrian that, fourteen would admit McManus, (8th (41 before Cir.) 554 F.2d of they had hearing testimony, formed an questioned opinions), 92 veniremen had petitioner’s guilt innocence. 727, 81 Irvin, 366 at at (8 Cf. Denno, of 12 formed opinions); had In the voir instant case dire revealed (8 F.2d opini at 367-68 16 had formed deep preju- other indications of a and bitter ons).26 present community. dice in the venire- One an opinion With such their permeating apparently strong feelings man veiled his minds, it would be difficult to say that testifying. when fel- Another said that her each could exclude this preconception of parishioners low tried to influence her guilt from deliberations. The influ- guilty. Many vote veniremen volunteered ence that lurks in an opinion once formed opinions guilt, and over 90 percent persistent is so it unconsciously asked said they those discussed the case fights detachment from the mental express opinions. or heard others their processes average man. We believe that the voir dire case in this Irvin, 366 U.S. at 81 S.Ct. at 1645 strongly more resembles that of than Irvin Indeed, (citation omitted). when asked Martin, of Murphy. 653 F.2d opinions whether could set their aside Three-quarters ad- the veniremen heard, what forget they had many of guilt mitted to an jurors gave and ambiguous uncertain many, could not set aside. “Where so so Even such equivocal answers. assurances times, many prejudice, juror’s] admitted [a of impartiality preferable open to the statement of can impartiality given little prejudice admissions of made Juror Hrin Irvin, weight.” altеrnates, and the two who went “so far as 1645; Martin, 653 at 806. F.2d say that it would take evidence to over- 3. The Jurors Selected come belief.” their Id. at 1645; The the prejudice permeating 798,27 Murphy, 421 95 U.S. S.Ct. voir dire and community the was reflected 2035. Cir.1970), jurors (2d alternate were did rt. dismissed and F.2d 813 402 U.S. ce participate jury’s 906, 1373, in the An 91 S.Ct. 28 646 deliberations. L.Ed.2d alternate who did not deliberate con does not evaluation, independent 26. As result of a our jury taminate a there unless is reason believe to reject we therefore trial must the court’s con- exposed the had been to alter the all, all, clusion that “almost if not the first [of prejudicial opinion. nate’s information or jurors prior present ... had no or fixed twelve] Vento, 838, United States v. 533 F.2d 860-70 opinions.” App. at 196a. (3d Cir.1976). jurors In this case the told were among could case discuss the themselves jurors. challenge did not nine Petitioner Be- n sequestered. days when For four the two alter Pennsylvania cause time at the of retrial re- jurors sequestered nate were and seated with quired objection be made before the regular jurors. though the Even is there no deliberate, 1106(d) retired to Pa.R.Crim.P. prejudiced evidence that the alternates talked (1975), petitioner’s challenge failure to a regular jurors, to the such a condi objection sustained particular for cause waived to that Provenzano, juror, 15, tion “continuous and intimate association” 620 F.2d at 996 n. unless operates requirement petitioner failing to the object subvert the can show cause to for Rogers McMullen, jury’s developed prejudice v. verdict be on based evidence and therefrom. 1185, witness stand. See Turner Louisi (11th Cir.1982); v. from Graham v. 673 F.2d 1188 ana, 472-73, Mabry, 466, 546, 603, (8th Cir.1981); 379 U.S. see 85 S.Ct. 549- 645 F.2d 606 550, Isaac, (1965) by Engle (jurors guarded 107, 130, v. 456 U.S. 102 S.Ct. deputy 1568, witnesses); (1982); Wainwright also see sheriffs were 71 who L.Ed.2d 783 McMann, Sykes, United States ex rel. Owen v. v. 435 433 U.S. 97 S.Ct. 53 L.Ed.2d by impar- a fair trial petitioner’s right assuranсes hardly surprising that the

It is jurors jury. tial impartiality given by petitioner’s It is more sur- negative. equivocal (cid:127)were of life detention and sentence Petitioner’s blanket- give some could indeed prising that are in violation of the Consti- imprisonment impartiality. jur- Petitioner’s assurances of He is there- of the United States. tution barraged community were members of a ors freed from that deten- fore entitled to be discussion, with publicity alive .and subject Petitioner is still tion and sentence. quarters where three of those community however, indictment, custody under disqualifying preju- admit to a called would on may he this or another and retried jurors dice. Those were then asked to for- Irvin, 81-S.Ct. indictment. U.S. get petitioner had been convicted at 1645. murder, rape, and of Pamela Rimer. the district will remand case to We forget were asked to how They of habe- the direction that a writ court with writing in and once' on the stand had twice a reason- issue within corpus shall unless her, that he had killed retold in detail and. the Commonwealth shall afford able time except he offered no defense how new trial. insanity. Those temporary put all knew and their forget asked to STERN, Judge; concurring. District aside. a re- impressions opinions Such . the most reflecting test even Under “the frail- quest took insufficient account of the values embodied in respect minimal Irvin, 366 ties of human nature.” amendment, com- we would be the sixth 728, 81 at 1645. S.Ct. My this conviction. pelled to invalidate concep- a technical “Impartiality is not however, concern, particular is with It a state of mind.” Id. at tion. years for 175 constitutional standard which v. (quoting at 1643 United States courts, which we are guided has the lower 123, 145, 177, 185, Wood, 299 U.S. apply today, and which renders obligated (1936)). must view the L.Ed. We cir- taking place trials under constitutional jurors’ light assurances of in impartiality shocking less than оnly slightly cumstances pretrial of voir publicity, difficulty in this case. presented those dire, and the testimony jurors select- Dowd, Irvin v. assur- despite ed. We conclude their (1961), Supreme impartiality, ances of could not Court, from language earlier crystalizing opinions set aside their and render verdict Burr, 50-51 v. F.Cas. United States solely based the evidence (C.C.D.Va.1807) (No. 14,692g) (Marshall, pre- court. Petitioner has shown that States, C.J.); 98 U.S. Reynolds United prejudice caused actual to a publicity 145, 155-156, Spies 25 L.Ed. 244 degree rendering impossible a fair trial Illinois, 131, 179-80, 8 123 U.S. County. examining Clearfield After the to- 30-31, Holt v. circumstances, (1887), 31 L.Ed. 80 Unit tality peti- we hold that 2, 4, States, fundamentally tioner’s retrial was not fair. ed per that it is (1910), L.Ed. 1021 established III. CONCLUSION jury composed of 12 empanel missible to preconceived whom have a persons, all of part We will affirm that of the district guilty, long is as opinion that defendant holding petitioner’s court’s order that con- impres aside his promises “lay as each to right against stitutional self-incrimination and render a verdict based opinion sion or not the admission into evi- violated Irvin, on the evidence in court.” will va- dence of his oral statements. We at 1643. Accord part holding of its order that ‍​​​‌‌‌​​‌‌​‌‌​​‌​​‌​​​​‌​‌​‌‌‌‌‌‌‌​‌​​‌​‌‌‌​‌​‌​‍cate that Florida, 421 County infringe Murphy did retrial in Clearfield not selected, any challenge jurors (1977). to of the Where as here a fair trial was Failure however, “strong particular juror impossible evidence” that the accused because of a but is not Beck, jurors, challenge thought regardless particular not biased. of the 557-58, juror required. any at 964. for cause is not U.S. at individual (1975); Martin v. that it presumes meaningful: to be that a Warden, (3d Cir.1981), promise lay opinion, 653 F.2d 799 to aside an for exam- ple, high that an accused school teacher brutally killed one of his own students is (1982). either believable or enforceable. Definitive According to thе Irvin Court: hold “[T]o precept refutation of this as a psychological the mere existence of any preconceived is, course, beyond my matter capabilities, notion as to the guilt or innocence of an but I would venture that no one of us accused, more, without is sufficient to rebut would want to gamble our freedom on the presumption of a prospective juror’s ability person of a preformed erase a impartiality would be to impos- establish an guilt.1 Moreover, as to even if such Irvin, sible standard.” 366 U.S. at self-imposed amnesia is possible cogni- as a at 1643. I why cannot see it is “im- event, surely prediction tive its is not relia- possible” to obtain begin who do not is, ble —that we expect cannot a person to with a bias. The suggest test I would not any degree know with of accuracy at the disqualify juror merely because he has time of voir dire whether or not he will be exposed rather, been pretrial publicity; able to lay opinion, aside however desir- represent those who have ous he is of achieving that end. I see no formed an opinion irrespective of the de- — subject reason to our system to the gree of its fixation —must be excluded auto- guesswork, hazards of where particularly matically from jury participation. easily Thus, alternative is so achieved. There can possible be but two explana- reject I the Irvin standard as a means to tions for the Irvin standard. The first is insure impartial jurors.2 psychological training any impression. Commentators with evidence at all remove See, e.g., have come to Comment, same convey my conclusion. That is what I in intended to Psy- judge. Fair Trial v. Free Press: The answer to the chological Publicity Tweed, People Effect of Pre-Trial on the Record of 50 How.Pr. 262 Ability Impartial; (N.Y.Sup.Ct.1876) Juror’s tо be A Plea for Re- at 104. Another admits that form, process unpredictable: S.Cal.L.Rev. 682 & nn. is Jr., Stanga, you go see also juror Judicial Protection If were to into the trial as a Q. Against you carry [preformed] Criminal Defendant Adverse would impression that same Coverage, Mary jury-box? Press 13 Wm. & L.Rev. 5 & into the upon n. 23 A. I think if I was called to serve as a my prejudice I could free mind from all 2. The voir dire at the celebrated trial of “Boss” impressions impartially; and act is years ago provides Tweed over 100 a wonderful my belief. example imposed upon any of the strain notion you Have ever tested that belief in a like Q. “impartiality” by “laying aside” stan- case? veniremen, dard. Various all of whom indi- Never, A. sir. preformed opinion degree, cated a of some re- experiment your part? It would Certainly anbe Q. variety strategies by vealed a they felt A. it would partial- could rid themselves of their initial process Id. at 142—43. Another views the ity. listening voices, to their we must decide degrees one of of belief: if it makes sense to continue the dia- same you give The Court—I would like to have logues today. your way your language own and in own suggests lay One venireman that he is able to your regard the condition of mind to Mr. duty: aside his as a matter of dealings city. Tweed or his with the you box, go If were to into My Q. view is I this: read Witness — you require any would else; evidence newspaper everybody whatever to like I have heard impression you remove the proceedings, charges against now have? and of the no, juryman; else, everybody A. Not as a sir. Mr. Tweed like superficial I have certain juryman information; Your belief superficial as a Q. a different on that thing your from opinion; belief as a man? I have formed an that is information do, up A. If one should come in the street all I have had to and all I have seen thе man, necessity doing; and tell me Mr. Tweed was an innocent of I have never looked into gave any degree particularity; I should not at once believe it he unless the case with I proof contrary; me some to the but in the have never examined the yer a evidence as law- jury-box go any prejudice I in there free from would have examined I it. have formed juryman. duty opinion; I as a think that is the the I do not consider that I have juryman, ought require any opinion, that it not to formed what I call a decided assurance despite that a venireman’s rationale for the strate The second conceivable preconception to aside a necessity, lay that he is able practical Irvin test is that it is a exists in juries guilt, actually there empanelling without which the of defendant’s impossible. simply juror’s opinion I refuse to mind a “fixed” potential would be ours, extinguished. as populous believe that in a land’ as which cahnot be abound, potential where by which proper view of the My standard group impartial a of 12 way to assemble a propriety seating par- to measure persons opin- is to allow those with advance away with the distinction juror ticular does long they give proper ions to sit as as a that are “fixed” and those opinions between ability lay incantation of their to aside so, spectral less a something are as opinions. those If a cannot be selected meaning. person A with analysis empty of persons preformed without resort to with to the issue of a defend- opinion going any a guilt, views of a defendant’s it should be unfit to simply jury. serve on guilt ant’s anoth- simple matter transfer the case to anyone to me that would It is incredible county. er There is no societal in- simply Further, contrary take the view. want to by seating terеst advanced who has case, I would discredit highly publicized in a openly concerning stated that he has a view preconceived opinions denial of where guilt, notwithstanding the defendant’s polled of those state significant percentage it can be “laid aside.” opinions concerning the de- hold vulnerability “laying of the Irvin recognized While the Court has fendant. only heightened aside” standard is where may presumed prejudice that veniremen attempts temper potentially its devastat- to the protestations contrary in the face of ing consequences for a criminal defendant prospective where most of the other Murphy pointed are examined. The Court bias, disqualifying compare to a Ir- admit that, out vin, (nearly at 1645 juror’s equal assurances that he is of veniremen have some percent [T]he to this Paying prior opinion] task aside regarding guilt; prejudice defendant’s dispositive cannot be of the accused’s presumed), Murphy, remainder with rights, open and it remains to the defend- (roughly at 2037 ant to demonstrate “the actual existence percent opinion; of veniremen have an no of such an opinion in the mind of the regarding remainder), I would presumption juror as will raise the presumption empanelled allow to be where any jury partiality.” percent more than 25 of the veniremen concerning Murphy, state that hold an U.S. at at 2036 (quoting Irvin, one guilt. the defendant’s Where over 1643). bias, quarter polled I am at a loss to how a of those indicate such I understand defendant would ever be grave sincerity able to demon- have doubts as to the thoroughly you, I have not looked into it so as to But could no matter what form of Q. opinion, me put you, upon entitle given to have that but I have oath were enter general superficial it this examination. upon your having impression without upon I am now here and am called this guilty of mind that Mr. Tweed has been those jury, juryman, struck and if I am to serve I as frauds? conscientiously believe that I can act try. A. I should fairly fairly County. for Tweed and I for the you succeed? Could Q. question have been asked the I whether IA. think so. prefer would that Tweed should or succeed you forget You think what could Q. County, I and I have answered that you now believe? prefer County should should suc- mind; my A. I think I could dismiss it from I I ceed. do not mean that would have it, forget no. against bias which would make me decide Id. at 204. Tweed, County County against for the All seated as com- of these veniremen were Tweed; prepared 1 would be to decide jurors. petent according to the evidence. process

Id. at 94-95. Another describes a function of will: representations impartiality by agree of others in with Judge pre-trial Hunter community. required change a of venue. publicity As I record, read it was failure of the It long has been the foundation of our judge principles Irvin, trial apply of that, life, legal system liberty man’s “[N]o supra, excusing in jurors cause that property punish as criminal forfeited Thus, resulted in an unfair trial. I restrict ment for violation of that law until there my vote for a remand and new trial solely charge fairly been a made fairly and ha[s] to the issue of Juror Hrin’s impaneling as a in public tried free of prejudice, tribunal and do not juror, agree Judge with Hunt- passion, excitement, tyrannical power.” thesis that the district court Florida, 227, 236-37, v. er’s erred in Chambers 309 U.S. 472, 476-477, 84 denying change 60 S.Ct. L.Ed. 716 I of venue. not

do see how we live by can this ideal I. continuing while apply Irvin test. I standard, adopt would originat different notes, As the Yount majority had been ing at the sense and simplici confluence.of rape convicted of murder 1966. Af- ty, which prevent any person would from Supreme the Pennsylvania ter Court set еntering the jury becoming judge box and a. both of aside these convictions in preconceived the facts if of he has view time Yount tried a second for murder the merits of the case. in November of 1970. The voir dire in this ten days second exhausted and 167 GARTH, Circuit Judge, concurring in the veniremen1, 121 of whom were dismissed judgment. cause. Hrin, this case Juror F. James who sat Among jurors the twelve and two alter- judgment Yount, of the petitioner, Jon Yount, nates selected to six try testified during admitted his dire voir that until he they had opinions formed no as to was shown establishing facts Yount’s inno- guilt. Yount’s Five jurors stated that they cence, he would find it difficult change case, formed opinions had about but guilt. about Yount’s Because I lay opinions could those aside and Hrin, conclude that by testifying so during keep an open Finally, mind. three jurors— dire, voir “the demonstrated actual ex- both of the alternates and Juror James F. istence such an in the mind of opinions Hrin —testified that as juror[s] will raise the [one Yount’s] Yount’s could culpability but these presumption of partiality,” Murphy Flori- opinions if the proper evidence were da, 421 794, 800, 2031, 2036, 95 S.Ct. presented.2 Dowd, Irvin 717, 723, Juror Hrin’s by voir dire examination (1961), I judgment concur in the prosecution Hrin was disclosed that uncer- court that a required. new trial is whether tain he render a verdict could solely based on the evidence adduced at My concurrence, however, is limited to' Responding questions trial. to two by the the issue charge raised Yount’s that Jur- that he prosecutor, Hrin asserted “wouldn’t or Hrin had been improperly impaneled. Thus, say for sure” he while I whether could “erase or agree Judge with Hunter that held, Yount’s fifth remove the rights opinion” amendment he but stated a were not violated inculpatory when his time statements second that he eould do so. Hrin’s trial, were admitted his second I do punctuated answers were with suggestions ninety-two persons though Two Magistrate’s report 1. hundred were select- lists 168 trial, ed as talesmen for Yount’s second questioned, agree Judge with who I Hunt- improperly whom the court dismissed cho- er record reveals learning County sen after the Clearfield acquaintances sheriff had selected friends and juror participated Neither alternate in the complement of his own in a full order to obtain jury’s impartiality deliberations. Their is not jurors. The court dismissed an additional challenged before us. questioning. four for cause before Al- Hrin challenged Juror promptly could” render Yount thought “possibly he he that rather denied verdict, cause, challenge would be the trial court a fair and that for “[i]t whether he me to answer” difficult for in there go he could “he declared because presuming jury enter the box “could rea- The trial court mind.” open with an innocent.”3 to be [Yount] as soned follows: for by counsel cross examination Under because he challenge for cause deny I the Yount, that he Hrin asserted the defendant with an go could in there he declared of evidence production require would mind; against and Commonwealth open any opinion of he would abandon before Bentley Pa. [287 v.] [Commonwealth Hrin stated as follows: guilt. Yount’s (1926)] sets forth A. 310 that — you Hrin Q. I understand Mr. Did who has a fixed incompetent is juror require require you would would some— erased which cannot be opinion definite you could something before evidence he evidence—and he said hearing and by you now have? change your opinion guided by it and be disregard could facts show a Definitely. A. If the evidence, I believe he stated law and originally I had difference from what I open in an mind. go with he could believe, definitely I been led to would being that as sufficient accept would change mind. my you pro- conviction that overcome facts, Q. you’re But until shown those that he opinion he has a fixed posed change your would not mind —is you an- aside and I think his put could not your position? enough as to unequivical were swers [sic] go else to on. nothing A. Well—I have he declared opinion as to as any fixation Q. the answer is I understand. Then opinion a solid it is not although he had change mind yes you your would not — as it used to be which quite as solid facts? you presented until were expres- His that it is not solid. indicates it with an Right, A. but I would enter there is not now a fixed is such that sion open mind. it. accept therefore I so opinion and words, Q. you’re saying In other Supreme Pennsylvania would presented you appeal, while facts were On keep you mind and after that open rec- summarily concluded Court “[t]he mind? your would feel free to had a that none of ord shows Definitely.

A. inno- appellant’s guilt or opinion fixed as to unable to Q. cence, legally otherwise you change your But would not or was Yount, presented? mind until the facts were 455 Pa. serve.” Commonwealth 314 A.2d Right.... A. not, say prosecu- I work at a A. I would

3. Hrin’s voir dire examination change my job tor was as follows: mind con- where I have stantly. you any opinion as to the Have formed Q. change your you guilt or Yount? Would be able to innocence Mr. Q. degree up your opinion you in regarding A. To the that it was written before be- mind yes. papers, way juror I case? That’s the come a this your part?" Is this a fixed you question. Q. must have answer answer. A. This is sort of difficult presented I defi- A. If the facts were so you me to be selected Let ask—if Q. nitely change my mind. could box, jury as a take the this case and say you you could enter the Would Q. you you could erase or remove the presuming innocent? him to be box solely now hold and render a verdict based difficult for me to A. It would be rathеr produced on the and law at this evidence answer. trial? you jury box with an enter the Can Q. very possible. say It is I wouldn’t A. your open prepared to find verdict on mind sure. the law at trial and evidence you you Do think could? Q. Judge? presented by the possibly I think I could. A. do. A. That I could opinion you hold is not neces- Then the Q. sarily opinion? a fixed and immobile Second, pro highly se cases in January On Yount filed in extreme corpus. Paragraph pretrial habeas satu petition flammatory publicity petition part 12-B of the asserted in community from which the rates require [jurors] “two stated that would drawn, may rely the accused on a presump In prove light Petitioner to his innocence.” partiality, prove of and need not actual tion case, the in this it is patent of record Louisiana, 723, v. 373 bias. See Rideau U.S. to paragraph one the referred in 726-27, 1417, 1419-20, 83 S.Ct. 10 L.Ed.2d 12-B is Juror Hrin.4 The court district (1963); Florida, 421 Murphy 663 cf. v. U.S. pertinent portions reviewed of each the 794, 802-03, 2031, 2037-2038, 95 44 S.Ct. Hrin’s, jurors’ testimony, including voir dire Alabama, (1975); Mayola L.Ed.2d 589 v. 623 did testimony but not concentrate Hrin’s 992, (5th Cir.1980), denied, F.2d 997 cert. particular, no findings respect- in made 913, 1986, 451 U.S. 101 S.Ct. 68 L.Ed.2d 303 ing Patton, it. F.Supp. See Yount v. 537 (1981). rebuttable, presumption This 873, (WD.Pa.1982). argues 880 Yount be- however, prosecution and the demon may appeal fore us on that Hrin had abandoned of the impartiality jury by strate the re innocence, presumption on the voir dire testimony. liance Unit See not constitutionally Yount could convict- Chagra, 250, supra, ed States v. 669 F.2d by panel containing juror. ed a a such 252-54; Johnson, v. 584 United States F.2d 148, 154 (6th Cir.1978), denied, 440 cert. U.S. II. 918, 1239, (1979); 99 59 L.Ed.2d S.Ct. 469 As the in Supreme Court Nebraska Press Gullion, 26, 575 United States v. F.2d 29-30 stated, pub- v. “pretrial Association Stuart Cir.1978). (1st licity pervasive, publicity— adverse —even Third, the accused can demonstrate “a inevitably not to an trial.” does lead unfair significant prejudice,” possibility of United 539, 554, 2791, 2800, 427 96 49 U.S. S.Ct. Davis, 190, (5th v. 583 F.2d States 196 Cir. (1976). explain L.Ed.2d 683 In order to 1978), dire procedure and that voir fully why I do not believe the district court inadequate permit discovery. to its See denying change erred in a in due to venue Blanton, 298, United v. 700 F.2d States alleged prejudicial publicity, it is useful to (6th Cir.1983); 307-08 v. Del United States review those circumstances in which 340, linger, (7th Cir.1972), 472 F.2d 374-75 exposure publicity require to adverse does 970, 1443, denied, 410 93 S.Ct. 35 cert. U.S. new trial. (1973); L.Ed.2d 706 v. United Silverthorne First, may the accused demonstrate the States, 627, (9th Cir.1968); 400 F.2d cf. 639 prejudice actual existence of attributable 1086, v. 595 Capo, United States F.2d 1092 part pretrial publicity on the of one more denied, (5th Cir.1979), 6 cert. 444 n. U.S. Dowd, members the jury. See Irvin v. 1012, 660, (1980); 100 62 L.Ed.2d 641 S.Ct. 717, 1643, 723, 1639, 366 U.S. 81 6 S.Ct. Haldeman, 31, v. F.2d United States 559 (1961). prejudice L.Ed.2d 751 must be Such (D.C.Cir.1976), denied, 71 64- cert. 431 U.S. speculation shown “not a matter of but 933, 2641, 97 S.Ct. 53 L.Ed.2d 250 reality,” as a demonstrable States United Addonizio, 49, v. 451 F.2d United States 454, 462, rel. v. Darcy Handy, ex 351 76 U.S. (3d denied, Cir.1971), 65- 67 cert. 405 U.S. 970, 965, (1956), 100 L.Ed. 1331 and is S.Ct. (1972). 92 31 L.Ed.2d S.Ct. 591 usually jur by established reliance on addition, In in two classes of cases voir responses. ors’ dire See United States (5th Cir.), may transpiring 250 accused assert that events Chagra, v. 669 F.2d ___ ___, during the of trial trial 103 74 course rendered the (1982). Maxwell, 92 Sheppard L.Ed.2d unfair. v. 384 U.S. reversal”). question ground There is no the issue court I therefore and would be partiality appeal. juror para- of Hrin’s is before us on See assume referred other Hickey Jeffes, v. graph juror. United States ex rel. F.2d was an No alter- 12-B alternate (3d Cir.1978) (“[w]e can consider nates were for members substituted issue, by Pennsylva- previously considered supra. See note 2 convicted Yount. courts, presented district nia which was challenge to (1966), by granting err would venue, A Texas, for cause. 381 U.S. this and Estes (1965), however, if the chal- Supreme required would not be 14 L.Ed.2d conduct of trials “ut granted. Court condemned the cause were lenge for coverage.” corrupted by press See terly rare circumstances Second, extremely Florida, 282, 303, Dobbert v. preju establish “actual may the аccused 2290, 2303, (1975). In Florida, Murphy inference. dice” cases, press during presence these 2031, 2038, a fair trial trial rendered the conduct of In such a case the L.Ed.2d A intrusion into the impossible.5 similar community must demonstrate “a defendant members of the process occurs when poisoned against petition so with sentiment during to the exposed publicity are jurors of impeach the indifference er as to States, v. United 360 trial. See Marshall of their own.” Id. no animus displayed who 1172, 1171, 3 79 L.Ed.2d S.Ct. rely case to on only Supreme the Court In McKeen, 947, v. 605 F.2d 1250 Goins Dowd, ninety percent ground, Irvin v. this v. (6th Cir.1979); 952-54 United States Wil pre the had a point examined on of those liams, 464, Cir.1978); (5th 568 F.2d 468 guilt, notion of the defendant’s conceived Jones, 186, 194-97 542 F.2d United States v. judg sat in eight persons actually and who 922, 96 (4th Cir.), denied, cert. 426 U.S. S.Ct. thought defendant the defend ment of the 2629, 49 L.Ed.2d 375 727, guilty. 366 U.S. at 81 S.Ct. ant case, juror exposed to In this no Indeed, just recently this court refus trial, during and the rec- publicity adverse Irvin to reverse a apply principle ed to the reflecting publicity' preceding ord the 23 71 only persons conviction in which of trial, my opinion, was not Yount’s second exposed pretrial publicity known to be to inflammatory give pre- so as to rise to a opinions guilt. of the defendant’s had fixed addition, partiality. of it is sumption Warden, 799, (3d F.2d 806 Martin v. 653 that the trial court conceded “extend[ed] denied, 1151, Cir.1981), 102 cert. 454 U.S. great questioning in his leniency [Yount] 1019, (1982). Thus 71 L.Ed.2d 306 veniremen,” Maj. op., 23, at 970 n. if the defendant estab agree while I argument and no is raised that the voir dire community existence of a “so lishes the ample expose preju- was less than the as to against the poisoned [defendant] Therefore, jurors. the potential dices of who dis impeach jurors the indifference of upsetting Yount’s conviction only basis for animus,” change then a of venue played no is existence of of prejudice” the “aсtual merely agree I do not required, is jury. one or more members of the har prospective because a number may “actual An accused demonstrate dire, guilt, the voir opinions bor in two prejudice” part on conducted, screen the biased fairly cannot establish, First, ways. may the defendant from the fair-minded. testimony, means of the voir dire prejudice by this showing A of actual opin- preconceived one or more had a accomplished. lightly method is not to be guilt ion of the defendant’s which could not Fifth stated in United States As the Circuit a verdict be set aside in order to “render 531, Dozier, (5th Cir.), cert. v. 672 F.2d on the evidence in court.” based ___ ___, 256, denied, Dowd, supra, Irvin v. 366 U.S. case, (1982), of actual court L.Ed.2d 200 “detection at 1643. In such a the trial Louisiana, Sheppard solely Although Rideau v. v. of the extent and nature basis Maxwell, showing frequently pretrial publicity Texas of actual and Estes v. without a are Alabama, unit, see, Mayola supra, e.g., prejudice. United States v. See discussed as a Estes, contrast, Dozier, Sheppard Cir.), cert. (5th F.2d at 997. 545-46 F.2d process denied, ___ U.S. ___, represented into the trial 74 L.Ed.2d intrusions 103 S.Ct. integrity (1982), Sheppard of the trial. and Estes should be rec which undermined Chagra, supra, from Rideau. See United States analytically 669 F.2d ognized distinct Haldeman, supra, 10; United States v. represents in which 249 n. Rideau instance n. 32. Supreme a conviction 559 F.2d at 61 has reversed Court prejudice is not accomplished through jug- obtaining jurors’ form of assurances of im gling statistics.” Irvin does n'ot establish a partiality is insufficient.” United ex States bright-line rule containing venire Denno, rel. Bloeth v. (2d F.2d percentage of biased talesmen above a cer- Cir.), denied, cert. 372 U.S. Rather, tain level is presumptively bad. (1963). Instead, ‍​​​‌‌‌​​‌‌​‌‌​​‌​​‌​​​​‌​‌​‌‌‌‌‌‌‌​‌​​‌​‌‌‌​‌​‌​‍the court must examine the totality of trial court must determine independently circumstances, including the adequacy whether objеctively jurors’ assur the voir ferreting jurors, dire in out biased ances are credible. United States v. in order to establish whether of Blanton, 700 F.2d (6th 307-08 Cir. venue constitutionally required. 1983); Gerald, United States v. 624 F.2d

A thorough and skillfully (5th Cir.1980), conducted voir 1296-97 dire should be adequate identify juror 920, 101 Association’s, bias, even in a community saturated with (1981). The American Bar publicity adverse to the defendant. As the Standards for.Criminal Justice provide that District of Appeals Columbia Court of not the voir dire “shall be conducted for the ed, “voir dire long recognized has been as purpose determining what the prospec an effective method of rooting out such tive has read and heard about the case bias, especially when conducted in a careful and how exposure has affected that and thoroughgoing Appli manner.” In re person’s attitude toward the trial.” ABA Co., cation of National Broadcasting 653 (2d Standards for Criminal Justice 8-3.5 § 609, (D.C.Cir.1981)(footnotes F.2d 617 omit 1978). objective ed. evaluation of this ted). For this reason the appeals courts of information, however, rests with the trial repeatedly expressed have “confidence in Irvin, court. (which the trial court itself the effectiveness of a skillful voir dire to questioned jurors the for challenged cause) pretrial counteract the threat of publicity.” did engage not in a searching thorough and Duncan, 839, United v. 598 F.2d 865- States Instead, voir dire. the court erroneously (4th Cir.), denied, 871, 66 cert. 444 U.S. 100 jurors’ subjective credited the opinions that 148, (1979). S.Ct. 62 L.Ed.2d Reviewing 96 each impartial could render an verdict not the conviction of Lieutenant William Calley withstanding his or her opinion. Irvin v. Lai, for the killing of civilians at a trial My Dowd, supra, 724, 366 81 U.S. S.Ct. generated considerably pretrial more publicity 1970, than Yount's second trial in case, however, significant- Yount’s differs the Fifth “[tjhere Circuit observed that has First, ly from Irvin v. Dowd. counsel them- greater been a willingness to uphold trial selves conducted the voir dire in Yount’s court’s determination jurors were ca and, Judge concedes, as Hunter pable of rendering impartial an verdict great leniency afforded questioning where that conclusion was reached after Second, of veniremen. challenged Yount deliberate, searching, thorough and voir cause, only jurors three for two of and. 184, 209 dire.” Calley Callaway, 519 F.2d jurors, those according to the district (5th Cir.1975), denied, n. 45 cert. 425 U.S. 911, 1505, findings, court’s they 96 47 “indicated har- (1976). S.Ct. L.Ed.2d 760 603, opinion.” Patton, See also Graham v. bored no fixed Mabry, 645 F.2d Yount v. (8th Cir.1981); 611 Capo, Third, United supra, F.Supp. States at 878. the trial 1086, 595 F.2d (5th Cir.1979), 1091-92 cert. permitted questioning court expo- on the denied, 1012, 660, 444 U.S. juror sure of each to and the de- publicity Margoles v. United gree juror’s of fixation of opinion. each Six States, 727, (7th 407 F.2d Cir.), 729-31 of the testified that had no U.S. 24 L.Ed.2d preconceived guilt Yount’s at all. (1969). Among remaining jurors, six Yount challenged Hrin, one—Juror James F. As Irvin makes plain, juror’s subjective whom I affirmation of discuss below—for cause. The impartiality dispositive is not dire, question scope depth of the and of the always bias. It has voir and clear that going through challenges been “merely jur- absence of cause to each Hrin, required. adequate support constitutionally an Yount’s case was except

or independent objective Nevertheless, judgment determination I concur in the that, Hrin, with the exception conclude, I for the rea- the court because “lay impression[s] could aside follow, F. Hrin [their] that Juror James sons opinion[s] and render a verdict based on the impaneled been in this case. should not have evidence in court.” Irvin v. Dowd, supra, 366 U.S. III. Dowd, In Irvin v. 81 S.Ct. Hunter, however,

Judge discounts the ex- (1961), Supreme tensive voir dire conducted in Yount’s 1970 held that the mere existence of Court challenges trial and the аbsence of for cause guilt as to the or inno- preconceived notion Rather, juror except Judge to each Hrin. not, more, cence of an accused without opinion places great weight Hunter’s on the presumption rebut of a sufficient finding percent that “77 of the 163 venire- juror’s impartiality. Id. at prospective questioned men would admitted observed, at 1643. As the Court carry Maj. into the box.” however, adoption of such a rule does op., at 970. “ To my mind, this reliance on whether, in a inquiry not ‘foreclose statistics, regard scope without to the of the case, rule given application of that challenges voir dire or the absence of deprivation prisoner’s life or works cause, significance elevates to talismanic ” Id., liberty process without due of law.’ percentage of veniremen as a whole California, quoting Lisenba v. opinions guilt. with about a defendant’s I 86 L.Ed. 166 do not believe Irvin v. Dowd was ever in- juror’s impar- a prospective The test of tended to be read in this fashion. If the tiality, Reynolds articulated v. United scope ample of the voir dire is it con- —as States, (1878), 25 L.Ed. 244 cededly large is in this case—the fact that a Dowd, percentage persons supra, who are on the reiterated in is whether jury prejudices carry have should little strength opinion “the nature and of the weight. ... necessarily formed are such as in law raise the of presumption partiality....

There are undoubtedly many communi- ties in which is the large percentages upon of the ve- The affirmance of the issue niremen exposed pretrial pub- have been challenger. Unless he shows the actual licity and have a notion of the defendant’s opinion existence of such an in the mind guilt. well-publicized The trials of juror as will the presumption of the raise Watergate defendants, see United v. States partiality, juror need not necessari- Haldeman, supra, and of Lieutenant Wil- [Reynolds be set aside.” v. United ly liam Calley, Calley supra, see v. Callaway, States, 145, 156-57, 25 L.Ed. 244 U.S. But, undoubtedly are of this character. (1878).] very function of the voir dire is to root out Dowd, v. supra, Irvin 366 U.S. at persons preconceived prejudices such with Florida, S.Ct. at 1643. See Murphy can, and identify only by those who the trial 2031, 2036, 794, 800,95 44 L.Ed.2d U.S. independent determination, court’s lay aside any prejudices and render a verdict based taken as a testimony, Hrin’s voir dire solely during on the evidence adduced trial. whole, demonstrates the “actual existence Thus, given a voir dire which concededly adequate juror and which the mind of the functions to achieve its of such an designed purpose, change a venue is not presumption partiality.” as will raise the constitutionally required simply because testimony by prosecu- Even the adduced many persons who will not serve on tion whether Hrin en- raised serious doubts may prejudices harbor jury the defendant’s open with an mind. The jury tered box guilt. to the as defendant’s Hrin record reveals that asserted simulta- keep open that he could an mind reasons, neously join Judge I do not

For these change “say a of venue in for sure” wheth- holding that and that he could Hunter’s er he could do so. In response ques- to the of law and fact. As the Court in Dowd tion whether Hrin “could enter the box stated, innocent,”

presuming to be Hrin [Yount] the test is ‘whether the nature conceded that would be rather difficult “[i]t strength of the opinion formed are such for me to answer.” as in law necessarily ... raise pre sumption partiality. Testimony question adduced fur- The defense ther require presented revealed Hrin would thus is one of mixed law and Yount to produce evidence Hrin before fact.... As was stаted in Brown v. preconceived would abandon his opinion of Allen, 443, 507 [73 guilt. Yount’s Hrin affirmed that he 469], 97 L.Ed. ques “so-called mixed change “would not mind until [his] [he] tions application or the of constitutional Having stated, facts.” so [with] principles to the facts as found leave the Hrin presumption abandoned the of inno- duty adjudication with the federal permits cence. While the law a juror to was, judge.” therefore, It duty affirm that he or will she enter the Appeals Court of to independently open mind, box with an a cannot evaluate the voir dire testimony of the require that the defendant evi- produce impaneled jurors. dence wipe prior clean a perception or Dowd, Irvin v. supra, 366 opinion. must be impartial S.Ct. at 1643. when They agree sworn. cannot to be im- In this case the Pennsylvania Supreme partial if the defendant convinces Court concluded that “none of the them to be so. had a fixed guilt [Yount’s] case, juror, this by his own admis- Yount, innocence.” Commonwealth v. su sion, required the production of evidence to pra, 455 Pa. at 314 A.2d at 248. Never preconceived opinion of the de- theless, the trial court found that Hrin had guilt, agreed fendant’s to keep open opinion [although] “solid not quite as solid mind about this evidence if and when he as it used to be.” Neither the trial court law, heard it. As a matter of this admis- Pennsylvania Supreme Court, nor the how sion raises a presumption of A partiality. ever, considered the legal effect of Hrin’s defendant cannot constitutionally be con- requirement that the defendant put on evi by jury victed containing juror. one such dence to Hrin of opinion. disabuse this This Dowd, Irvin supra, latter requirement presumption raises a 1643; S.Ct. at id. at 81 S.Ct. at 1645 law, partiality as a matter of and therefore (“some [jurors so far as to that it say went] does not implicate 2254(d). 28 U.S.C. Cf. § would take evidence to overcome their be- 209, 218, v. Phillips, Smith U.S. lief”). 940, 946, (1982) (in which such presumption by operation no of IV. applied); *, law see id. at 222 n. 102 S.Ct. at In concluding as a matter of law that * J., (O’Connor, 948 n. concurring). Juror Hrin’s testimony presumption raises a Dowd, of impartiality supra, under Irvin v. V. fully cognizant I am that in a federal habe- The guarantees sixth amendment to each corpus proceeding, findings of a state impartial by defendant a fair and a presumed correct, court “shall be to be un- peers. right of his or her The to trial applicant less the shall establish or it shall ” Carta, by impartial jury, Magna old as the appear otherwise .... 28 U.S.C. system justice. is fundamental to our of Mata, 2254(d) (1976); see Sumner v. § Louisiana, Duncan v. U.S. U.S. 66 L.Ed.2d 151-56, 1444, 1448-1451, Dowd, however, Under Irvin v. (1968). Consistency with this juror constitutional opinion prospective raises a by that each partiality operation provision requires lay aside presumption law, a mixed poses question prior perception and therefore and “render a

verdict based on the evidence Dowd, supra,

court.” Irvin v. U.S. 723, 81 Consequently, 1643. no

juror may opin- enter the box with an

ion that can be changed only upon the

presentation of evidence the defense. requiring

Juror Hrin admitted to such evi-

dence, and therefore could not constitution-

ally judgment sit in Accordingly, of Yount.

while I dissent from view expressed

Judge Hunter’s that a

venue was constitutionally required, I con- judgment court,

cur in the

directs that the writ corpus of habeas

issued unless Yount is retried within a rea- so, however,

sonable time. I do for the

reason that Juror Hrin was improperly

seated. (argued),

Charles Sovel Freedman Lor-& P.C., Pa., ry, Philadelphia, for appellant. McGrath, Gen., J. Paul Asst. Atty. Wash- D.C., Vaira, ington, Jr., Peter F. Atty., Bricklin, Susan Dein Asst. Phila- Atty., LORENZETTI, B., Appellant, Paul Pa., Kanter, delphia, William Freddi Lip- Staff, stein (argued), Attys. Appellate Civ. Justice, D.C., Dept, Washington, Div. UNITED STATES America. appellee. No. 82-1683. United Appeals, States Court of WEIS, HIGGINBOTHAM, Before Circuit Third Circuit. BROTMAN,* Judges, Judge. District

Argued April THE OPINION OF COURT

Decided June BROTMAN, Judge: District This case arises under the Federal Em- Act, ployment Compensation 5 U.S.C. (FECA). 8101 et It is an action for seq. § declaratory judgment brought by Paul B. Lorenzetti against the United States. dispute stems from an unresolved conflict government’s regarding right reim- injured under the bursement FECA and party’s ability damages to recover under statute, Pennsylvania no-fault Pa.Stat. (Purdon seq. Ann. tit. 1009.101 et § court, 1974). F.Supp. The district ‍​​​‌‌‌​​‌‌​‌‌​​‌​​‌​​​​‌​‌​‌‌‌‌‌‌‌​‌​​‌​‌‌‌​‌​‌​‍to reim- required held that Lorenzetti was even government though burse the he had * Brotman, Stanley designation. Hon. S. United States District Jersey, sitting by Judge District of New for the

Case Details

Case Name: Jon E. Yount v. Ernest S. Patton, Superintendent, Sci--Camp Hill, and Harvey Bartle Iii, Attorney General of the Commonwealth of Pennsylvania

Court Name: Court of Appeals for the Third Circuit

Date Published: Oct 17, 1983

Citation: 710 F.2d 956

Docket Number: 82-5372

Court Abbreviation: 3rd Cir.