*1 SUPERINTENDENT SMITH, CORRECTIONAL PHILLIPS January 9, 1981 Decided Argued November 80-1082. No. *2 J., Court, Burger, Rehnquist, opinion of the delivered the which JJ., J., Blackmun, Powell, O’Connor, White, joined. and C. and J., J., concurring opinion, post, p. Marshall, O’Connor, 221. filed JJ., joined, Stevens, Brennan dissenting opinion, filed a post, p. 224.
Robert M. Pitler the cause for With argued petitioner. him on the briefs were Mark and Vivian Dwyer Berger. M. Kunstler
William cause for argued respondent. him With on the briefs was Vernon Mason.* C. delivered the Court. opinion Rehnquist
Justice Respondent was convicted in 1974 a New by November York state-court jury on two counts of murder and one count of attempted trial, murder. After moved to va respondent cate his conviction pursuant §330.30 of the N.Y. Crim. 1971) Proc. Law his mo (McKinney (CPL),1 and a hearing Sims, Ennis, Jr., *Charies S. Bruce J. filed and Richard M. Zuckerman a brief for the urging American Civil curiae Liberties Union et al. as amici affirmance. 1 provides Section 330.30 pertinent part: any sentence,
“At time after guilty rendition of a verdict of and before
211 was §330.40.2 to CPL held pursuant was tion trial, respondent’s who presided justice held before con him an opinion by denied vacate the motion giving events that the doubt” reasonable “beyond cluding People the verdict. influence did the motion rise 906, Y. 2d N. 630, 614, 613, 2d Misc. Phillips, Supreme Division (1975). The Appellate 907-908, the conviction affirmed Department, First Judicial Court, Y. S. 2d 384 N. 2d Div. App. opinion. without to ap leave denied Appeals Court New York (1976). The 2d 894 N. E. 949, 352 2d N. Y. peal. to appeal leave denial after years four
Some *3 in relief habeas federal sought respondent Appeals, of Court of District Southern for the Court District States United the in been asserted had ground same the on York New the granted Court District The hearing. post-trial state the Court States (1980), and the 1365 Supp. F. writ, 485 dif- a somewhat on affirmed Circuit Second for the Appeals of certio- We granted F. 2d ground. ferent constitu- federal of questions the important to consider rari by raised proceedings habeas to federal in relation law tional reverse. now (1981). We U. S. decisions. these ver- modify the defendant, aside set of the motion may, upon court the following grounds: upon the any part thereof dict or court, presence of occurred, out of there during the trial “2. That re- in person by another conduct improper by juror, or conduct improper defend- right of a substantial affected juror, which to a lation the rendition to prior the defendant to known and which was ant .” . . verdict. CPL under verdict set aside that motions § provides 330.40 CPL sufficient disputed facts allege they hearing if by § 330.30 must decided burden has defendant hearing, “the At the motion. grant support essential every fact evidence by preponderance proving 330.40(g). § CPL motion.”
I A original Respondent’s his motion to vacate conviction was respondent’s juror case, in that a one based on the fact John application the trial an Smith, submitted for em- Dana felony investigator ployment major in the District as a Attor- position ney’s learned of the had from a friend Office.3 Smith inquired the officeand who had who had contacts within mentioning without Smith’s name or the Smith’s behalf fact respondent’s in trial. that he was a When Smith’s by application placed office, his name was received applicants on a but he was not then contacted list and was respondent’s not known to be a trial. the office During inquiry applica- later about the status of Smith’s respond- tion, mentioned that was a the friend Smith attorney ent’s case. The to whom the friend disclosed this promptly superior, superior fact his and his informed turn Attorney charge hiring informed the Assistant District investigators. following day, more than one week be- respondent’s trial, fore the end of the assistant informed the attorneys actually prosecuting respondent two that one applied employment as an the office for investigator. *4 prosecuting attorneys applica-
The two conferred about the but tion concluded in that, view of Smith’s statements dire,4 voir there was no trial court or de- need to inform the application Attorney Smith’s letter of and was the District addressed to stated: “I understand in federally being that a formed investigative funded unit
your office investigate position as major apply for a felonies. I wish to an investigator.” The letter did not trial. respondent’s mention in that was a Smith Appended to the letter information containing biographical was a resumé 906, People about 616, Smith. 2d Phillips, 613, N. Y. S. 87 Misc. 2d days The trial judge as “ten described the voir dire in respondent’s case Id., During 2d, meticulous at 907. examination.” Y. at 384 N. attorneys They did instruct application. theof counsel fense had trial the after until Smith to contact office in the in- they no learn steps that insure took ended, and during voir revealed not been that had Smith about formation November on to deliberate jury retired the When dire. for to substitute available were alternate three 20th, counsel defense nor the court trial the neither Smith, and its verdict jury returned The application. his knew 21st. November application of Smith’s Attorney learned first District investigation to days after an later, Five 4th. on December de- and court trial the he informed information, verify the existence that its fact application and the counsel fense the before some time attorneys his office known was attorney moved Respondent’s then trial. conclusion verdict. aside to set Birns, judge, Harold Justice before theAt dis- not to attorneys explained their decision prosecuting seen had explained he that Smith application and close during the application submitting the nothing improper in at the adduced” “[f]rom the evidence all Bims, trial. Justice 912, found 2d, at Y. S. N. 621, 384 hearing, 2d, at Mise. it “in but indeed indiscretion” was letter that “Smith’s [respond- to the as premature conclusion way reflected no in- [respondent], or an against prejudice guilt, ent’s] or [respondent] guilt innocence ability to consider law en- career dire, pursue he intended his voir stated Smith drug en- federal awith employment for applied had that he and forcement in law interested was wife that his He also disclosed agency. forcement was she in which of an incident out which arose enforcement, an interest previously he had seriously injured. stated Smith assaulted and, Store, Department Bloomingdale’s for as a store detective worked Dis- with contact led to made arrests capacity, several counsel, by defense inquiry response to close Attorney’s Office. trict impartial a fair he his belief that could declared Smith counsel, Smith apparently satisfied defense This case. assurance *5 defense though the jurors even among the to take his seat permitted challenges. peremptory unused several solely Id., the evidence.” 2d, at 384 N. Y. S. at 915. With respect the conduct of the prosecuting attorneys, Justice Birns found “no evidence” “a suggesting sinister or dishonest motive with Mr. respect Smith’s letter of appli- cation.” Id., 618-619, at 384 Y. 2d, N. at 910.
B In his application for relief, federal habeas respondent con- tended that he had been denied due process of law under the Fourteenth Amendment to the United States Constitution by Smith’s conduct. The District Court found insufficient evi- dence to demonstrate that Smith was actually biased. F. Supp., 1371. Nonetheless, the court imputed bias to Smith because “the average man Smith’s position would believe that the verdict of the jury would directly affect the evaluation of his job application.” Id., at 1371-1372. Ac- cordingly, the court ordered respondent released unless the State granted him a new trial within 90 days.
The United States Court of Appeals for the Second Circuit
affirmed
aby
divided vote. The court
that “it
noted
is at
best difficult and perhaps
to learn
impossible
from a juror’s
own
after
testimony
the verdict whether he
inwas
fact ‘im-
partial,’” but the court did not consider whether Smith was
actually or impliedly biased.
cluded that due process is prosecutor’s violated when the actions treat a
II respondent pri argument Court, this has relied before by reasoning adopted marily District the Court.6 He con possibly impartiality ascertain the a cannot tends that court testimony solely upon juror by relying juror of in the the of a propensity self-justification, question. for human Given the impute respondent argues, bias law must in the position. disagree. We Smith’s remedy long allegations held that the This Court has juror partiality the is a which defendant has example, prove opportunity actual For in Remmer bias. (1954), in federal States, U. United by offering money approached someone criminal trial was exchange agent FBI An was as- for a favorable verdict. agent’s signed investigate attempted bribe, and the re- by prosecutor port judge the trial and the with- reviewed they When learned of the out disclosure to defense counsel. attorneys trial, the moved that the incident after defense alleging “they would moved for vacated, verdict question requested mistrial be re- that the by juror” placed the incident been disclosed alternate Id., at to them trial. 229. recognized the at-
This not Court seriousness “presumptively tempted it as bribe, characterized prejudicial,” investigation, which but also of the undisclosed very apt impress [was] to do so was “bound to even if unfairly impugn judicial process, defendant integrity (1980). 1019,1023 As thereby 2d prejudiced. the defendant is not 632 F. misread Appeals opinion, will be seen III in Part of this the Court Agio's. any ground 6 Respondent course, below on may, judgment defend ground asserted permit,
which the law provided and the record York v. New States United expand granted. relief which has been Williams, Dandridge Co., Telephone 159, 166, (1977); 434 U. S. n. 8 States, 471, 475, 312 U. S. (1970); Ryerson v. U. S. n. 6 Ibid. this and a unduly.” Despite recognition, conviction must not jury proceedings integrity “[t]he jeopard- invasions,” ibid., ized unauthorized Court did not re- like that ordered this Rather, a new trial case. quire judge instructed the “determine the Court circum- *7 the stances, upon juror, the thereof and impact whether or in a not with all [they prejudicial, were] interested Id., at 230 parties permitted participate.” (emphasis added). words, the other Court ordered the precisely by which was accorded Justice Bims this remedy case. Remmer, Even before the decision this Court confronted bias Dennis v. States, United allegations implied juror (1950). 339 162 Dennis was convicted U. S. of criminal con- for failure to before the tempt appear Committee on Un- American Activities of the House of Representatives. He the which him, that convicted argued jury composed primar- ily of of the United in- employees Government, States was biased because such herently were to Ex- employees subject (1943-1948 ecutive Order No. 3 627 CFR Comp.), which for their provided discharge reasonable upon grounds for belief that they were to the Government. disloyal Den- nis contended that such employees would risk the charge of disloyalty or the termination of their which employment result might from a vote for The Court acquittal. rejected this claim of bias, that implied Dennis was “free to noting show the existence of actual bias” but had failed to do so. S.,U. at 167. The Court thus “A holding concluded: bias implied to disqualify jurors because of their relationship with the Government . . . Pres- is no longer permissible. ervation of the actual bias is a opportunity prove guaran- Id., tee of a defendant’s right to an impartial jury.” Frazier v. States, 171-172. See also U. United States (1948); Wood, U. S. Florida, Chandler
Our decision last Term in 449 U. S. 560 (1981), also treated a claim bias. Appel- of implied juror lants in Chandler at a were crimes convicted of various theft Canon of new under televised partially jury Court. Supreme Florida the by promulgated Ethics Judicial sensational publicity unusual the that claimed They the proceedings televising created atmosphere courtroom Consist- trial. a fair preclude the jurors influence would “the appropri- that we held decisions, previous our ent with defendant’s prejudice such against safeguard ate it his case —be coverage media’s demonstrate of the particu- ability compromised printed broadcast — ” Id., at 575. fairly. adjudicate case to heard lar any with show [attempt] “not did the appellants Because ability impaired' cameras presence specificity before evidence case on to decide Id., at 581. their conviction. aside to set we refused them,” not require does process that due demonstrate cases These in a potentially been placed has a juror time every a new trial trials rule, few Were situation. compromising *8 of safeguards The acceptable. constitutionally instructions dire voir and protective as such impartiality, impossi- virtually it is infallible; are judge, from might influence contact every from to shield ble ca- a jury means Due process vote. their affect theoretically be- the evidence solely case decide willing and pable prejudicial to prevent watchful ever judge a trial and it, fore occurrences such of the effect to determine occurrences may properly determinations Such they happen. when in held Remmer in ordered like hearing aat made case.7 this Remmer-type in made correctly that determinations *9 8 Tnconnection with argument his process by that due was denied the
prosecutors’ withholding of application, Smith’s respondent *10 Brady, with we focused not upon prosecutor’s failure to disclose, but the effect of upon nondisclosure on the trial:
“Nor do we believe the constitutional obligation [to disclose unrequested information] measured by the willfulness, moral or culpability, the prosecutor. If evidence highly of innocence is probative in his file, he should be presumed recognize its significance even if he has actually overlooked it. if Conversely, evidence has no actually probative at significance all, no purpose would be served by a new trial requiring simply because an inept prosecutor incorrectly believed he was sup- pressing fact that would be vital to the defense. If the suppression evidence results constitutional error, it is because of the character of the evidence, not the character of the prosecutor.” S., 427 U. at 110 (footnote omitted).10 and citation of this light it is evident that the Court of principle, Ap- erred when peals it concluded that prosecutorial misconduct alone a new requires trial. We do not condone the conduct of the prosecutors in this case. Nonetheless, as demonstrated II Part of this opinion, Smith’s conduct did not his impair ability to render an impartial verdict. The trial ex- judge so pressly found. 87 Mise. 2d, at 627, 2d, N. Y. S. at 915.
10Even in egregious prosecutorial cases of misconduct, such as the know ing perjured use of testimony, we required a new trial when the tainted evidence was States, Giglio material to the case. See 150, (1972); 405 U. Napue Illinois, 360 U. S. This materiality requirement implicitly recognizes that the misconduct’s ef trial, fect on the not the prosecutor, blameworthiness of the is the crucial inquiry for process due purposes. note, course, We that nothing prosecu- suggests this case that the tors’ conduct was found, undertaken in bad faith. As the trial court “there is no any evidence which degree points any to a conclusion that member of the District Attorney’s staff, officer, any ... or court had a sinister or dishonest motive with respect application, to Mr. Smith’s letter of sought gain thereby an unfair advantage over the defendant.” 87 Mise. 2d, 618-619, 2d, N. Y. S. at 910. *11 job disclose prosecutors’ failure to Smith’s Therefore, the post-trial hearing juror requiring although application, guaranteed respondent fair trial deprive of the bias, did not by the Process Clause. Due
h-H > corpus, federally course, of habeas reaches writ A issued provision only in violation of some obtained convictions Cupp As we said Constitution. United States (1973): Naughten, S.U. may a federal court overturn convictionresult-
“Before ing ... it must be established not from a state trial action] merely [State’s undesirable, is errone- ‘universally but condemned,’ or even that it violated ous, guaranteed was to the defendant some Amendment.” the Fourteenth violation, it was error for the Absent such a constitutional if in this case to order a new trial. Even lower courts respondent Appeals believed, contends, as the Court of “reign prosecutorial unchecked” unless a misbehavior authority ordered, it had no to act as it did. new trial authority judi- supervisory state Federal courts hold no over may wrongs proceedings cial intervene to correct Florida, S., 449 U. constitutional dimension. Chandler Naughten, supra, Cupp v. at 146. No such 570, 582-583; Accordingly, judgment wrongs of the occurred here. Appeals is Court of
Reversed. O’Connor, Justice concurring. separately opinion, to ex-
I concur in the write Court’s but press my opinion use view that the not foreclose does “implied appropriate bias” circumstances.
I prejudged a Determining juror or has whether a is biased may inter- partly juror case difficult, because the partly concealing because the bias and his own est may compounded problem of it. unaware charge misconduct, from and not of bias arises when a juror. parties attempts simply to influence a of third from postcon- in most instances a I Nevertheless, believe adequate hearing determine whether a will be viction probe juror’s hearing permits counsel to A is biased. memory, acting did, he and his as understand- his reasons for per- ing consequences A also of his actions. juror’s judge demeanor under to observe mits the trial *12 light evaluate his answers and to cross-examination particular of the case. circumstances that in certain instances a hear concerned, however,
I am uncovering juror’s may ing inadequate biases, a leav be subjected ing question the trial court had serious whether manifestly unjust procedures resulting in a mis defendant to justice. carriage case must turn on its own While each justify extreme situations that would a facts, there are some examples might finding implied include a rev bias. Some prosecuting juror employee elation that the agency, is an actual partici of one of the that the is a close relative pants in that the transaction, the trial or the criminal or criminal transac was a witness or somehow involved proceedings result in a find tion. Whether or not the state ing impar bias,” of “no the Sixth Amendment such tial should not verdict to stand under allow a circumstances.* exceptional “implied *In the may require application situations of an doctrine, by
bias” the lower not be deterred federal courts need 2254(d), § U. provides proceeding S. C. that in a federal habeas issue, “a determination made a hearing after a factual the merits of a finding, competent , State court of jurisdiction by a written . . . evidenced indicia, opinion, written or other shall adequate reliable and written presumed correct, to be it shall oth- applicant unless the establish or shall appear. erwise . . II the conclu- the use of cases preclude previous None of our circum- in appropriate bias of implied sive presumption States, 347 U. S. (1954), on v. United Remmer stances. miscon- relies, involved heavily which the Court who attempted party of a third misconduct duct, but circumstances, where the juror those Under a juror. bribe stake has no actual or of misconduct accused not been has incentive has no significant thus trial, and the outcome could adequately biases, postconviction his shield In Dennis was biased. not the juror whether determine States, 339 U. (1950), the Court rejected v. S. 162 the Federal Govern- with employment a juror’s claim that foreclose but did not bias, to find implied a ground ment was Justice situations. in more serious bias implied finding that he wrote opinion, in the Court’s concurred Reed, who employ- mean that Government decision “the Court’s read are circumstances bias when for implied barred ees which convince court’s attention to the brought properly ju- be suitable would not employees that Government court Id., 172-173. case.” rors in a particular *13 to reverse bias implied has used Moreover, this Court States, In Leonard 378 U. S. conviction. curiam), (per (1964) held that prospective the Court guilty the defendant’s announce the trial court who had heard not was “(2) court employed the State factfinding procedure that the hearing; full fair to afford a and adequate hearing fair, “(6) full, adequate and not receive a applicant that the did proceeding; or State court in the of law “(7) process due applicant otherwise denied that the was proceeding. . . .” court State pro- bias, state-court involving implied extraordinary situations In those inadequate by definition resulting finding of “no bias” are
ceedings in a conclusively presumes. bias that the law uncover the be automatically verdict in the first trial should disqualified second trial on similar charges. from on a sitting
Ill postcon- there be circumstances which a Because remedy adequate charge will not be viction important it for the to retain bias, Court the doctrine implied preserve rights. Sixth Amendment I bias read opinion foreclosing implied as not the use of Court’s bias appropriate situations, and, therefore, I concur. Marshall, with Justice whom Justice Brennan Justice Stevens join, dissenting. vigorously pursued employment
Juror John Smith with the prosecutor throughout jury office of the the course of his respondent’s prosecutors service state criminal trial. The' improperly trial, learned of Smith’s efforts but failed to disclose this information until after the had re- guilty against respondent. turned a verdict of The state post-trial evidentiary hearing court conducted a and deter- actually mined that Thus, biased. it ruled respondent prejudiced, was not and refused to set aside Respondent subsequently petition the conviction. filed a corpus a writ of habeas in the United States District Court claiming for the Southern District of York, New that he was impartial jury. denied his constitutional to an The Dis- trict Court aside, ruled that the conviction should be set Appeals the United States Court of af- for the Circuit Second majority holding firmed. A of this reverses, Court now post-trial evidentiary hearing provided protec- sufficient respondent’s right impartial jury. tion to I to an Because majority’s analysis completely unpersuasive, find the I dissent.
I *14 right very by impartial jury to a trial at the an lies process. heart of due 717, 721-722 Dowd, Irvin v. 366 U. S.
225
heritage,
Constitution, and
our
(1961).1 “[O]ur common-law
have committed
applying
Constitution
experience in
our
trial has one
criminal
position
irrevocably
to the
us
and reliable deter
provide a fair
purpose
well-defined
—to
(1965)
532,
Texas, 381 U.
guilt.”
v.
Estes
of
mination
Goldberg,
Douglas
JJ.,
and
(Warren,
whom
J., with
C.
simply
purpose
cannot
concurring).
joined,
That
by bias or
tainted
jury’s
are
deliberations
if the
achieved
reliability
if the
are assured
prejudice.
Fairness
of the evidence
evaluation
calm, reasoned
is based
verdict
again,
va
in a broad
time
presented
Thus, time
trial.
at
strong
adopted
measures
riety
has
contexts, the Court
jury.
impartial
by
right
trial
protect the
given a fair and
that defendants
has insisted
The Court
to determine
opportunity
voir dire
meaningful
they
jurors
if
no
prospective
are biased—even
whether
knowledge
Carolina,
Ham v.
prior
South
specific
of bias.
(1973),
not
court
a trial
held that
the Court
409 U. S.
prospec-
question
opportunity
deny Negro
defendant
a
prejudice
subject
the circum-
when
of racial
on the
tive
questioning.
when
Even
suggest
the need
such
stances
required,
general-
prejudice
a
questions
are
racial
about
necessary.
prejudice
thorough inquiry
is
into
ized and
Ross,
v.
The
has also insisted that the
be
Court
selected from a
cross-section of the
representative
community.
Selection
that exclude
procedures
significant portions
the popula
bias,
the risk
tion, and thus increase
are invalid. For ex
in Peters v.
Kiff,
(1972),
407 U.
493
S.
in
ample,
Court
validated
a selection
resulted
procedure
Similarly,
exclusion
systematic
Negroes.2
Taylor v.
Louisiana,
The to a right jury drawn from a fair cross-section of the extends even to community defendants who are not members supra, In Peters v. Kiff, of the excluded class. the defend Taylor ant the exclusion of challenging white; blacks was supra, Louisiana, v. the defendant the exclusion challenging of women was male. Exclusion is impermissible, simply because who are jurors not members of the defendant’s class may prejudiced against defendant, but also because the jury would be deprived of “a on human perspective events that may unsuspected any case importance supra, Peters v. Kiff, that may be presented.” at 503-504 Taylor . v. Louisi (opinion announcing judgment). See also supra, ana, at 531.4 2In Kiff, Peters v. opinion announcing judgment Court procedures stated that such proof unacceptable were when there is no even S., (Marshall, of actual J., bias. 407 U. joined by Douglas at 504 Stewart, JJ.). opinion explained virtually impossi that actual bias is Thus, prove. ble to Ibid. necessary principle it to “decide on side shall suffer the consequences Ibid. uncertainty.” of unavoidable great harm, Given potential importance and the impartial jury, doubts Ibid. should be resolved in favor of the defendant. States, 3 Seealso Ballard v. 329 U. “ Lousiaua, Taylor flavor, In qual the Court stated that ‘a a distinct ” “
ity excluded,' is lost if either sex is indeed of one 'exclusion protect from defendants also acted has The Court pre- prejudiced might extensive possibility that Louisiana, S.U. Rideau publicity. *16 granted a re- should (1963), court the trial that ruled it community had entire change when the venue, quest a for interroga- police in a crime to the confess the defendant seen require a not did The Court television. on tion broadcast actually preju- showing the confession that particularized Irvin v. Later, in against defendant. jurors the the diced (1961), reversed conviction the Court 717 S. Dowd, 366 U. preceded publicity inflammatory had widespread and where jurors he that insisted though had the each trial, even the impartial. would remain must be defendants
Similarly, stated that has the Court during publicity trial. impact on protected from the coverage of news ban on Although constitutional an absolute justified, the cannot print media by or broadcast the trials opportunity demonstrate given must defendant ability compromised coverage case of his the media’s weigh the evidence jury the case particular that heard (1981);see 560, 575 S. fairly. Florida, 449 v. U. Chandler 539, 563-565 427 Stuart, U. v. Assn. Press Nebraska also (1976); supra. Texas, v. Estes par- by against third guarded conduct other has
The Court Remmer impartiality. jury’s might affect ties that any (1954), commu- it ruled States, U. S. United pending the matter a trial about awith nication presump- reasons, deemed jury “is, obvious before presumption Although this tively prejudicial.” Id., 229. at heavily upon the Govern- rests conclusive, “the burden is not the defend- to and establish, after notice ment to de- harmless was contact with ant, such S.U. Louisiana, Turner See also Ibid. fendant.” placed (1965) been try it (jury after a case could not if be true community than representative less make the S., (quoting at 419 U. group excluded.’” or racial were an economic 194). States, supra, v. Ballard custody deputy protective who had been sheriffs though jurors might principal prosecution witnesses, even association). by the influenced not have been inquiry preju- required has into summarize, the Court To particular juror that a was no evidence dice even when there perspec- regarded the absence of a balanced biased; has against simply of bias tive, defendant, not the existence always prejudice; required cognizable form of has not as a prejudice; strongly pre- particularized showing of and has party initiated a third sumed that contact with prejudicial. ju- there case, In this where was evidence that interest, ror Smith had a serious conflict of and where that inevitably perspective conflict would distort his ease, majority juror’s simple nevertheless holds asser- sufficientlypro- tion, verdict, after the that he was biased *17 by respondent’s right impartial jury. trial tects to an This utterly holding is inconsistent with the historical rec- Court’s ognition priceless” right. swpra, of this “most Irvin, at 721.
II A majority importance right The concedesthe a trial to impartial jury. respondent’s an It claims, however, right protected adequately was here, because the state trial judge postverdict evidentiary hearing conducted a and con- actually According cluded that Smith was not biased. to the majority, requires only the Constitution that the defendant given opportunity prove an Indeed, actual it bias. apparently proof insist on bias, of actual when juror applied employment prosecutor’s a had for of- with the already employed fice, but also when the was prosecutor’s prosecuting office,or when he served as a attor- ney. majority evidentiary premise relies on the that an hearing provides adequate prejudice assurance that does not premise, ignores psychol- exist. This however, basic human ogy. evidentiary In cases like one, this can never adequately protect impartial jury. to an contrary, juror suggestions to the majority’s
Despite the job applicant.5 He be- passive, indifferent not a Smith investigator of Office employment as an gan pursuing day September 23, 1974, the same Attorney on the District Officer friend, Court Criminal He asked in. he was sworn apply- proper of method Rudolph to determine Fontaine, application, completed his employment. he had ing Once for delivery Attor- District to the hand gave it to Fontaine he the court he apparently assumed ney’s because Office, addition, after the office. personal contact officerhad regularly with Fon- met filed, he application been to determine order Jury Piazza in Mario Warden and taine 1974, the application. November On progress of his guilt ended. The and the a verdict returned Attorney’s Office phoned District day, very Smith next application. was unable When he of his the status check application, his anyone knew who about get with in touch inquiries his supervisor to make former his he asked behalf. employment actively pursues vigorously
When a trial, the aof throughout course prosecutor’s office in the may be con- bias This substantial. probability bias job. The obtain part effort a calculated scious, favorably if application viewed will be may his believe may to vote decide guilty. Thus, he is found defendant he evidence, regardless guilty verdict for a *18 jus- acquittal not is persuade that attempt other danger of unconscious very serious is also a There tified. not extraordinary would character Only individuals bias. employ- way by future interest their some affected not to chal dire, the defense chose during voir majority The notes that in a strong interest a he had Smith, that lenge though he stated even de However, since 212-213, Ante, n. 4. law career. enforcement would an interest officer, such was himself a law enforcement fendant a it clear think I defense. necessarily have been unfavorable appli from very different is general career interest law enforcement case. particular a job prosecutor a with the cation tend to favor the may pros- the juror Subconsciously, ment. with his some affinity poten- he feels because ecutor simply make a sincere effort Indeed, the juror tial employer. so. unable do yet to remain impartial, bias it is also high, unlikely probability Not is the reveal this bias. evidentiary post-trial the human stated, given propensity of Appeals As the Court “to learn from a juror’s it is difficult very for self-justification, he was in ‘im- verdict whether fact after the testimony own (CA2 1980). Certainly, F. 2d partial.’” that he had consciously plotted to admit unlikely is juror of the trial. Such an the course during the defendant against Smith to criminal sanc- subjected juror would have admission his for a also have ca- damaged prospects tions.6 It would is un- A law enforcement agency reer in law enforcement. could credibility always hire an whose likely investigator that he had his disregarded ju- an admission be impeached in a criminal trial. ror’s oath was not of an affirmative course of
Even when the bias part unconscious, a is un- however, but was misconduct, evidence that he had been unable to weigh to admit likely remained impartial If he believes that he fairly. honestly lead to an amount of will trial, no throughout questioning ac- any Rather, vehemently deny admission. will cusations of bias.7 the question the Court has past,, recognized a juror problems
whether substantial prejudiced poses proof. 6If miscon engaged Smith were found to in a course of conscious (ob duct, § might he 195.05 prosecuted have been N. Y. Penal Law under (bribe by ju a structing governmental receiving administration); § 215.20 (misconduct 1975).
ror); might § also (McKinney or 215.20 He by juror) guilty § have been contempt. found 215.20. criminal See petitioner evidentiary hearing, emphasizes Thus, argues judge had an opportunity juror’s to observe the demeanor. petitioner, biased, the trial even that he was where the denies whether judge will jurpr’s integrity, be able to and decide measure the *19 an elusive condition the is such “Bias or prejudice difficult, to always if not impossible, it is most mind that exist the mind of existence, and it might its recognize (on one of the parties) his relations with account of one bias, he had no and said that that who was quite positive un- wholly decide the question able to he was perfectly v. the evidence.” but by anything influenced Crawford States, 212 U. S. 183, 196 Dowd, in Irvin S., at 366 U. Court Similarly, when he says be sincere although juror stated that defendant, the “psychological to the he was fair and impartial before one’s fellows is of such a declaration impact requiring in Peters Kiff, announc opinion And ten its father.” nature of the practices “It is stated: ing judgment harm, is harm, or lack of of actual here challenged proof S., 407 U. at 504 to adduce.” (Mar virtually impossible JJ.). Stewart, J., by Douglas joined shall, one, this where the probability I that in cases like believe adduced at a and where the evidence of bias is very high, does prejudice little assurance can offer of law. biased as a matter exist, should be deemed juror the of- with where a juror pursues employment Specifically, suggestive circumstances highly fice of the under prosecutor, interest, “implied,” should be conflict of bias misconduct or the ab- automatically despite he disqualified, should to secure If the efforts juror’s of actual bias. proof sence trial, convic- until after the are not revealed employment an impartial trial by to a tion must be set aside/ may be true It fairly weighed the evidence. credit his claim that he cases. in some of assistance opportunity will be observe However, falsely be honestly but it will be of little value where the impartial. lieves that he was rule implied-bias Although use an concurring opinion would not case, appropriate. circumstances, rule such a agrees this it that in some justified might suggests, example, finding implied It bias that a Ante, agency.” employee prosecuting where “the is an actual *20 to that and the threat too great, important, is too actual of bias. Such a re- proof insistence on to justify rigid reality. blinks quirement
B of bias in lim- these presumption conclusive Adoption be without such precedent; pre- would not ited circumstances historical bias have ancient roots. At of juror sumptions could law, be prospective challenged common English bias, actual when the defendant could but also prove were such that bias could im- when the circumstances states that exclusion of a prospective ju- Blackstone plied.9 when it is shown: ror for bias is implied appropriate is kin to either within ninth de- “that party [he] side; on that he has been arbitrator either that he gree; cause; has an interest that there is an action pend- between him and the that he has ing party; money taken verdict; for his has formerly that he been a juror cause; master, same servant, that he is the coun- party’s sellor, steward, or or of the same attorney, society Blackstone, with him.” 3 W. corporation Commentaries (W. 1890). 480-481 Hammond ed. view, my impossible
at 222.
In
it
meaningful
is
to draw
distinction be-
tween a
employee
prosecuting agency,
who is an actual
and a
Indeed,
applied
employment
agency.
who has
for
with that
there
may
greater danger
job.
be a
pursuing
of bias where the
is
An
yet
individual who
employment
has not
obtained
who
that his
believes
job prospects
may
are at
very
please.
stake
anxious to
Wood,
United States (1936),
“Challenges is, array, respect common law were to the with panel, juror. constitution of the polls, disqualification or to of a favor,’ Challenges polls to the were former ‘principal’ either or ‘to the being upon grounds of disqualification, absolute actual bias.” the latter for Id., at 134-135. 1890). (W. Blackstone, See also 3 W. ed. Commentaries 480-481 Hammond “suspects any if the defendant Similarly, states Bracton just . . . cause him for remove jurors he the twelve some of them deadly between enmities are there where as get greedy his desire is a there man, or the indicted suspicion , to be re- all are ground for ; if there . . land may proceed from all free doubts.” inquiry moved, that England and Customs the Laws Thome, Bracton 2 S. *21 juris- implied Most employ bias. rules also The States that or status conduct forth set that have statutes dictions jurors, re- prospective without automatically disqualify will actually stat- These person biased. that whether gard to prosecution, persons to the related frequently exclude utes The New the defendant.10 witness, or counsel, defense juror applied if here been would statute, which York light during job to apply come for a had to intention Smith’s any person who disqualifies it broad; especially dire, is voir which is action to party relationship witness to a ahas impartial rendering an person from likely preclude that to 270.20(l)(c) (McKinney § Law Proc. N. Y. Crim. verdict. for 1971, calls 1971). the statute provision, added This not and does “average person” standard application of an be bi- potential particular proof require 420, 2d Y.N. Provenzano, 50 People v. g., e. See, ased. (1980).11 410 408, E. 2d N. 424, 1981); (West Code Idaho Supp. § 1074 g., Ann. See, Penal Code Cal. e. Law Proc. 26.02(5); Crim. N. Y. Proc. (1979); Rule Crim. § Minn. 19-2020 1981); (Supp. §29-17-36 Code §270.20(1) 1971); D. Cent. (McKinney N. (1979); D. §136.220 (1971); Stat. Rev. 22, §660 Ore. Stat., Tit. Okla. 77-35-18(e) § Ann. (1979); Code Utah §23A-20-13 Comp. Laws Ann. with the joba dire, yet applied voir not Smith At the time he had however, if likely, Attorney. It seems District office of during voir light came fact this point, this application at filed an Y.N. pursuant dire, disqualified automatically been he would have 1971). 270.20(l)(c) (McKinney § Law Proc. Crim. also permitted
Some state courts have for im challenges fact, on a basis.12 In case-by-case bias least plied one court has bias circumstances presumed very similar to In Haak State, — Ind. —, presented those here. (1981), N. E. the Indiana Supreme 2d Court held that a woman husband was offered a position whose the prosecu was selected day tor’s staff on the she as in a rape biased. The court stated case that the impliedly juror’s bias could not be “avoided or dissolved by admonitions from the court or assertion that she juror’s believed she Id., at —, could the case judge impartially.” 417 N. E. 2d, at 326. It was unrealistic to this “expect situation Ibid. to act with an even hand toward both parties.” Thus, the trial erred in judge refusing grant defendant’s motion Tableporter v. Urist, for a mistrial.13 See also 157 Misc. (Mun. 1935) (conviction 283 N. Y. S. 350 Ct. set aside where juror’s son to defendant for a applied job). course,
Of the fact that many States of im- employ rules bias situations similar to plied those presented here does necessarily imply such rules are constitutionally *22 mandated.14 The widespread state practice does, however, 12 See, g., West, e. State v. 209, 210, 859, 157 W. Va. 200 S. E. 2d 861 (reversible (1973) ju error where trial court challenge denies for cause to Kokoszka, employee prosecutorial ror who is State v. agency); 123 Conn. 161, 163, 210, Howard, (1937); 193 A. State v. (1845), 211 17 H. 171 N. Co., grounds, Shulinsky v. Boston M. R. overruled on other & 83 N. H. (1927). 86, 89, 189, 139 A. State, 13 Cf. Block (1885) (juror 100 Ind. deputy prosecutor who is State, Barnes disqualified); 320, should be N. E. 2d 743 Ind. (1975) (juror whose relative prosecutor’s is a member of the staff should be disqualified). 14A decision to implied endorse rules of bias would not lead to the con- stitutionalization of a variety wide I disqualification of state rules. As above, stated I constitutionally believe implied-bias that an man rule is dated when probability the an particularly great, of bias is and when evidentiary hearing is particularly unlikely Measured to reveal that bias. standard, against many constitutionally this state rules would not be required. adopt such not States The
support that conclusion. pro- efficiently strong interest their expense of the at rules safeguard- to they committed not were if curing convictions they jury, not if did impartial and by an ing trial to the seriously threatened. right was that this believe
C appropriate, not implied-bias rule is concluding an that adequate hearing rem- evidentiary anis post-trial a and that heavily decision this Court’s majority relies edy, the de- The States, 347 U. v. United Remmer tax evasion. being income for tried was case in that fendant attempted person trial, an unnamed During the course the trial to the reported incident this juror. The a to bribe (FBI) Investigation Bureau Federal judge, asked who juror, interviewing the investigation. After an to conduct attempt made bribery had been that concluded FBI impact. prejudicial had a had not and jest,” id., “in any The defense action. take to judge decided The trial a verdict returned after incident learned brib- complaining trial, a new guilty. It moved likely in- to have investigation were attempt ery FBI any held jury’s Court deliberations. fluenced about private with communication prejudicial. presumptively jury is pending before matter conclusive, presumption is not this however, stated, It opportunity given should the Government and that re- then The Court harmless. was contact show hold directions with Court to the District manded the case harmful, the incident whether determine grant trial. new so, if *23 majority, establishes According Remmer to the remedy appropriate always the inquiry postverdict will conclusion the after prejudice jury raised are of claims where broad, nearly so holding is not Remmer The of of the trial. instances purport address did not The Court however. 236 implied. could bias An misconduct
serious
danger
case reveals that the
facts of that
of the
examination
in that case than in this one.
much less substantial
was
of bias
jury might
have been
claimed
The defendant
bribery attempt
by
and the FBI
unsuccessful
influenced
allegations
jurors
investigation.
were no
There
guilty
Moreover,
misconduct.
even if
were
themselves
bribery attempt
jest”
by
“in
made
influenced
were
evidentiary hearing
FBI, an
was more
with the
or the contact
impact.
likely
A
will be less reluctant
to reveal
upset by
or
the misconduct of a
he was disturbed
admit that
improperly.
party,
that he himself acted
than to admit
third
upon
majority
this Court’s decisionsin Den
also relies
(1950);
Frazier v.
339 U. S.
United
States,
nis v. United
(1948);
v.
Wood,
and United States
States,
237 rule would never implied-bias that an hold do not cases these stressed the Court decisions three In all be appropriate. inter to safeguard retain power trial judges a real suggest where circumstances the defendant ests of of the application includes surely This power of bias. danger 168; at Dennis, supra, necessary. se where rule per 150.17 at Wood, 511; supra, at Frazier, supra, (1964) 544 378 U. S. States, v. United Leonard Indeed, the application endorsed curiam), explicitly this Court (per was con- in that case rule.18 petitioner of an implied-bias 17 might be inter opinions that three of the in each language There is always bias will be actual hearing to determine that a preted suggest S., States, at 339 U. v. United See, g., Dennis e. remedy. sufficient guar is a actual prove bias opportunity (“[preservation 171-172 v. Frazier United jury”); impartial to an of a defendant’s antee subject to (in jurors are ordinary circumstances S., States, at 510 U. 335 S., Wood, at 299 150 bias”); U. States v. United only for “actual challenge circumstances where “actual bias” (courts into inquiry full conduct should however, cases, the Court In these appropriate). is inquiry such suggest subjective in the only prejudice including “not bias” as regarded “actual ‘in view the to arise thought implicitly might be such as sense but also par relation or employment, his or circumstances nature prosecution, in the involved activity to the matters governmental ticular ” 510-511, (quoting 19n. States, supra, at v. United Frazier otherwise.’ 133-134). Wood, supra, v. States 18 in (1927) financial (judge with Ohio, U. S. Tumey Cf. might he case, though even from disqualified in outcome terest average man interest, because by financial actually been affected not hold . . . temptation “possible subject to would be position in that accused”); re and the State nice, true between clear and balance inquiry jury (1955) grand may not conduct Murchison, (judge U. S. impartiality his because defendant charges against adjudicate then (1972)(opin Kiff, U. S. 493 Peters reasonably questioned); might JJ.) Stewart, (possibility J., Marshall, joined Douglas ion against in bias might result Negroes that exclude procedures selection see also procedures); of those justify invalidation is sufficient defendant 2, supra. n. awith pending application judge if to note It is relevant biased, mat- no presumed case, trying a he would he was litigant while See actually impartial. he was he protested vigorously how ter Murchison, supra. Tumey, supra; separate forging victed trials of Government checks and of *25 transporting forged in instruments interstate commerce. The two cases were tried in succession. The in the first guilty open pres- in case announced its verdict court in the jurors jury panel try which ence of the from who were to objected, the second case were selected. Petitioner but the objection holding reversed, was overruled. This Court jurors prospective in who have sat the courtroom and heard a against immediately prior verdict returned an individual charge that individual’strial on a similar should be automati- cally disqualified.19 this short, Court’s cases do not establish that an auto- disqualification appropriate.
matic rule is never To the con- trary, employed Leonard reveals that the Court has such a presenting unusually rule in those limited circumstances high probability juror similarly high that a is biased and a probability hearing that a will not reveal that bias.
D
majority
emphasizes
The
also
that federal courts exercis-
ing
corpus jurisdiction
ordinarily
habeas
must
defer to state-
findings
points
§2254(d),
court
of fact.
It
to 28 U. S. C.
19A number of lower federal courts have
suggested
implied-bias
also
may
appropriate
rules
See,
in some
g., McCoy
e.
circumstances.
v.
Goldston,
(CA6
(bias
1981)
As I have anof determine, on the basis state court possible state biased. hearing, Smith evidentiary whether 2254(d) rec- inherently Section unreliable. factfinding was It appropriate in cases. such ognizes deference factfinding of state presumption in favor provides that the full, applicant receive did not “the when overcome proceeding,” or court state adequate fair, and *26 process law.” of denied due otherwise “he was when evidentiary here (7). conducted 2254(d)(6), §§ The the hear- Furthermore, because adequate. fair and was not impartial sufficiently an protect ing not could the cir- process/ Under due respondent was denied jury, 2254(d) the state-court of § review bar not does cumstances, decision.
Ill Appeals on of the Court the decision affirm also I would prejudiced the. Respondent was ground. alternative denied, 409 U. exist”), cert. did prejudice anee that 1981) (court (CA2 101, 104-105 Brown, 2d 644 F. States v. But see United “ ju constricting presumptions unreasonably a set ‘create refuses to rela special other or occupational to certain cause for due rors be excused of a circumstances indirectly on the directly or might bear tionships ”) prejudice’ bias actual showing of no case, . where . . there given 1970)). (CA2 719, 724 States, 2dF. (quoting Mikus United (No. 49, 50 Burr, Cas. 25 Fed. States ago, in years Almost believed that he indicated (CC 1807), Marshall Justice Chief 14,692g) Va. person A circumstances. in some appropriate rules were implied-bias cau- law yet case; in the prejudice no “may he feels declare prej- supposes it jury because serving tiously incapacitates him from preju- feel would situation in a similar udice, persons general because Ibid. dice.” the trial their failure to disclose knowl-
prosecutors’ for a with job had the Office applied Smith edge If the had prosecutors informed the Attorney. the District would fashion, an alternate almost timely court in a cer- selected, any thus of bias. ending danger have been tainly in withholding conduct the information prosecutors’ At the evidentiary was clearly improper. hearing, they to disclose fact that claimed that failed Smith had they for a with their office because job part they were applied for the final stages trial. This caught up preparations evidence, is not At the close of the explanation convincing. another juror, Bethel, revealed that prosecutors been arrested on a narcotics to trial and had charge prior agreed with the District Office ex- cooperate Attorney’s change disclosure, dismissal After this charges. and an in camera consented to the dis- hearing, parties of this charge juror, and his one of four alter- replacement by nates. The fact that the were to disclose prosecutors willing information Bethel concerning failed to re- suggests they veal conduct, Smith’s not because of time but be- pressures, cause they believed that Smith’s presence on the be valuable.20 Even the now concedes that petitioner prosecutors should have informed the trial and the de- judge *27 fense as soon as learned of that they application, Smith’s and their failure to do so was inexcusable.
The majority that it- argues misconduct, prosecutorial by self, is not sufficient to of a in ha- justify reversal conviction
20 The state judge, Court, trial Appeals the District the all and Court condemned the prosecuting attorneys’ judge stated conduct. The trial that the failure to applica inform the court counsel of and defense Smith’s tion was 613, “a serious in judgment,” People Phillips, error Misc. 2d v. 87 628, id,., 384 N. 906, (1975), 631, Y. S. 2d misjudgment,” 916 at “unique and (SDNY 2d, 384 N. Y. S. 1365, Supp. 918. 1369-1370 See also 485 F. 1980); (CA2 1980). 1019, 632 F. 2d on this Court’s primarily It relies corpus proceedings.21 beas 110, 427 U. v. Agurs, States in United decisions (1963), 83, 87, 92 U. S. v. Maryland, Brady (1976), and to disclose obligation the constitutional that suggest cul- the moral by simply measured is not evidence material ordinarily appro- is relief that and of the prosecutor, pability pros- the prejudiced was defendant when only priate holding is correct majority Even if actions.22 ecutor’s fails the prosecutor where required is also prejudice biased, might a juror suggesting information disclose If the here. prejudiced was respondent it clear I think dis- promptly had been for a job applied had that Smith fact been have could trial closed, respondent’s protected. might trial, parties made been
If disclosure with one be replaced should that Smith agreed have simply supervi do courts that federal points out majority also The corpus review of result, habeas courts, that as state sory power over on focus must prosecutorial misconduct based conviction state-court DeChristoforo, 416 U.S. Donnelly v. See process violations. due possible 637, 642 misconduct, preju prosecutor’s of the nature Depending on the knowingly prosecutor If the easily satisfied. may be requirement dice if there is aside set must be testimony, the conviction perjured presents have affected testimony could the false likelihood any reasonable S., at U. 103-104. Agurs, 427 States jury. United judgment of the truth- corruption testimony is “a perjured all, presentation After prosecutor Id., at 104. Where process.” seeking function sub is a evidence, if there specific for request comply with a fails to dis material, failure was claiming that evidence basis stantial de S., at 87. Maryland, 373 U. Brady v. rarely excused. close disclose fails to prosecutor if the burden a substantial faces fendant ever evidence for the request evidence, specific no when material evidence if the set aside circumstance, verdict In this made. States exist. that did not otherwise doubt a reasonable creates 112. Agurs, supra, at *28 agreement was reached with re- Such
the alternates. might judge juror spect The trial also exer- Bethel. to (Mc- §270.35 power Law N. Y. Proc. under Crim. his cised Kinney any 1971), “[i]f provides at time after the its rendition of a verdict and before been sworn trial has unknown at the time of the satisfied, from facts court is juror grossly unqualified jury, that a to of the selection engaged juror in misconduct of a that a has , serve ... may, juror if the court an alternative , nature ... substantial discharge juror such service, . . is available for . simple replaced.”23 these Both of remedies order that he be juror possibility of bias. eliminated the would have judge very if stated, as the trial himself dis- least, At the during trial he would have conducted closure had been made engaged hearing in mis- to determine whether Smith actually I he was biased. As have al- conduct or whether ready suggested, I have serious doubts whether an evi- dentiary hearing nature could ever be reliable. of this likely hearing during trial is far more reveal However, a post-trial hearing. pressures evidence of bias than a juror position Smith’s would be much less substantial. trial, After he would have to admit that he had been unable obey juror, his oath as a and that he had been unfair evaluating During hand, he trial, evidence. on the other job pending application have to state that his for a prosecutor’s ability weigh might with the affect his office fairly. the evidence important, pressures judge
Just as are much on the less substantial where the course is held During judge of a trial. if is bi- trial, finds that a simply replace ased, he can with an alternate. possible The failure to analogized pros disclose bias can be knowing perjured ecutor’s testimony. prosecutorial use of Both forms of misconduct result in corruption the trial truth-seeking function of process. Agurs, supra. See supra, States 105; also n. see Thus, also, any this context if there is conviction should be set aside *29 remedy set is to found, the is bias if actual trial, After Any judge would begin trial. a new and the conviction aside pressures must have The taking action. such before hesitate Respondent was first case. great in this particularly been verdict, a to reach jury unable was the When in 1972. tried did not Respondent’s second trial declared. was mistrial a nine trial lasted years The second later. begin until two testify. these Under called were 44 witnesses weeks, and even have led trial would third a circumstances, where judge to set delay, be reluctant would expense and more the conviction. aside informa- the prosecutors had not withheld if short, likely quite that Smith application, it is job about Smith’s
tion replaced If alternate. anwith been excused would danger of made, the substantial replacement had been circum- Thus, under the eliminated. have been would bias prosecutors’ mis- prejudiced respondent was stances, prejudice, fun- this existence Given conduct. jury, impartial I right to importance damental the conviction. set aside corpus pro- power in habeas courts of federal limited The Although the conclusion. ceedings poses to this no obstacle hearing post-trial during Smith judge found trial factfinding is not actually to state-court biased, deference not required hearing evidentiary the fact- where supra, inherently at See finding unreliable. is based deprived in this case prosecutors’ misconduct 238-239. respondent opportunity and of trial, of a prosecutors’ juror. Where an alternate substitute alternative, the respondent deprive this conduct acted respond- relegate process, due with cannot, consistent State post- inadequate impartial belated, right to a to an ent’s hearing. affected could have omission the material reasonable likelihood that Here, supra. 103-104; S., n. jury. 427 U. See judgment of exist. does clearly, likelihood such a reasonable <1 view of the ef- unrealistic a completely adopts The majority fails to accord any and thus hearing, of a ficacy post-trial one impartial jury, to an to the meaningful protection defendants. by criminal possessed valuable rights the most *30 on the Court Appeals of the I affirm the judgment would with the of- employment for who applies that a juror ground that employ- vigorously pursues and fice of prosecutor is biased. impliedly of the trial course throughout ment that the pros- ground the alternative I affirm on would also to disclose failed ecutors improperly by respondent thereby prejudicing a job, for juror applied an unbiased him substitute opportunity depriving alternate juror. an unbiased due means process concedes majority on the evi- solely to decide case and willing
jury, “capable Ante, has asked for All respondent at 217. dence.” If the prosecutors such a by jury. to be tried opportunity the trial judge step informing the simple had taken office, their Smith with employment applied Smith have re- been and respondent could have replaced, Be- by impartial jury. to be tried ceived an opportunity however, a so, to do failed intentionally cause the prosecutors against respond- certainly prejudiced who was almost due process really If ent deliberations. participated tried an un- to be mean a full fair opportunity does case solely to decide willing biased jury, “capable has been case, process in this due on the evidence” —then denied. notes Respondent but question, in testimony of upon turn frequently will hearings said As we suspect. inherently evidence contending such errs or alto know may not (1950), “[o]ne States, 339 U. S. v. United Dennis he what to think one cause imponderables understand gether sanc up to live toman trying as an honest surely who is thinks, one but ain mind unbiased has he say whether qualified is well tity oath of his Reid, How. States Id., also at 171. See matter.” certain 361, 366 Appeals disregarded District Court and Court they post-trial hearing comporting this doctrine: held that a prosecuted in Remmer and other with our decisions cases constitutionally courts was insufficient in a state federal court under the Due Process Clause of the Fourteenth night day” Amendment. It seems to us to follow“as the post-trial system that if in the federal such as that allegations juror par- conducted here is sufficient to decide tiality, the Due Process Clause of the Fourteenth Amend- possibly require system.8 ment cannot more of a state court equal importance, Of this case is a federal habeas action in findings presumptively which Justice Birns’ are correct (d). § under 28 U. S. C. We held last Term that federal proceedings findings courts such must not disturb the state courts unless the federal habeas court articulates some disarming findings basis for statutory.presump- such they only by tion that are correct and be overcome con- vincing evidence. Sumner v. Mata, 449 U. S. (1981). Here Ap- neither the District Court nor the Court of peals findings took issue with the of Justice Bims. Ill already As Appeals rely upon noted, the Court of did not imputation the District Court’s Indeed, bias. it did not question juror holding even reach the bias, instead that the prosecutors’ application, failure to disclose Smith’s without respondent’s right more, process violated to due of law. Re- spondent Appeals thereby contends that the Court of cor-
Notes
notes prosecutors the disclosed application, the the re trial court could have placed Smith with an juror. Thus, alternate respondent argues, prosecutors’ was the action itself a process, pre denial of due but it also respondent vented from availing process himself of the available under New York (McKin law for correcting juror § bias. See N. Y. CPL 270.35 1971). ney argument This proves too deter- much. If the for Re- justice.” Brief appearance of rectly preserved “the contrary de- our to too, runs contention, spondent 7. This cases. cided the touch- demonstrate this of Court decisions Past prosecutorial alleged analysis of process cases of due stone culpability of trial, not of fairness is the misconduct (1963), Maryland, U. S. Brady v. prosecutor. admission disclose prosecutor to example, failed for the defend- which corroborated participant the murder a prosecu- held that The Court the crime. version of ant’s process “violates due requested suppression evidence of tor’s punish- guilt toor to either is material the evidence where pros- of the good or bad faith irrespective faith ment, Applying standard, the Court this at 87. Id., ecution.” punishment be relevant admission found undisclosed Since be resentenced. defendant that the ordered and thus guilt, however, the Court not material was the admission requirements compliedwith the itself the trial concluded suppres- wrongful prosecutor’s despite process due of process recognized of due the aim thus sion.9 Court prosecu- society misdeeds of punishment of “is not Ibid. accused.” unfair trial to of an avoidance tor but Agurs, States principle United reaffirmed This prosecutor must that a we held There, 427 U. S. a reason- create would unrequested evidence disclose Consistent exist. guilt not otherwise that did able doubt protected adequately during trial would replace mination been rendered law, would not have process to due respondent’s we no testimony, see juror’s own on the by necessary reliance impossible any pro- less and determination why post-trial hearing reason possible. tective or S., “[T]he 106: Agurs, 427 U. Brady States we said As but guilt issue on the the outcome have affected could not confession latter on the material It was Brady’s punishment. have affected could the issue on not material it was since former. And but not issue lacking process.” in due was not the entire trial guilt,