*1 815 law language, that common plain and neces- section’s regulations to make “all rules Busi- the Texas concepts only supplement perform board to its to enable the sary” Code, that the sec- ness and “duties, Regulation services.” and Commerce functions or separate to create authority, it tion was not intended exercise of that as J is a lawful would conflict to causes of action that system per- the federal reserve enables Bank, National Bryan v. clearinghouse collection and Code. Citizens form its check 761, “The ob- (Tex.1982). 764 prescribed in 342 628 S.W.2d functions 12 U.S.C. §§ is Code 248(o), the Uniform Commercial jective 12 360 of (Supp.1981) and U.S.C. §§ or decision- displace legislation scattered to (Supp.1981). law, practicable fully al to state as We support find no posi for Childs’s rules set of comprehensive workable regulation that the result of
tion as- of all principles governing Congressional of authori delegation invalid it in the field to which pects of transactions Congress of ty. authorized the Board Gov law is applies.... prior applica- Of course ernors to Federal Reserve Banks empower displaced by specific as it is not ble insofar clearinghouses to exercise the functions of Tex.Bus. & Comm. provisions of Code. carry check out collectors order to Ann., UCC, 1967).” (Tex. 1.103 Code Sec. Congressional policy establishing Products, Ply- Inc. v. Western Pacific Great clearing and system nationwide of check 286, wood, Ltd., (Tex.Civ. 291 528 S.W.2d Ass’n v. collecting. Independent Bankers 1975, writ). find Worth no We App. —Fort Reserve Board of Governors the Federal displac- 4.202 of the Texas UCC section 812, (D.C.Cir.1974). 500 System, F.2d 814 law of action on es common cause based Congress’s delegation the Board rule- pro- the duties outlined violation of making authority permits the Board fill vision. statutory in the details under the general Congres in order to effectuate provisions, AFFIRMED. such, policy. sional As is a constitutional
delegation authority. legislative See
Panama v. 293 U.S. Refining Ryan, Co. 241, 251, (1935). 446 S.Ct. L.Ed. remaining claim —that common Childs’s America, UNITED STATES negligence law action for in the collection Plaintiff-Appellee, also of checks exists —is without merit.4 his allegations Childs claims that Reserve Bank’s failure make reasonable Ray (81-5644), Clyde Leonard BLANTON attempts to collect the on the amount due Hood, (81-5645), Edward Jr. M. James give check and timely failure notice of (81-5643), Defendants-Appellants. Allen dishonor constitute a law common cause 81-5643, 81-5644 and 81-5645. Nos. negligence, action for as well as one for Appeals, United States Court
violation of support the UCC. of this Sixth Circuit. 1.103, he position, cites section which pro- displaced vides that “unless by specific pro- Argued June 1983. visions, the principles equity of law Decided 1983. Sept. supplement provi- shall the Texas UCC 19,1984. Certiorari March Denied sions.” Tex.Bus. & Ann. Comm.Code 1592. See 1.103. § The Texas courts interpreting sec held,
tion 1.103 have in accordance with the Coving- hearing, verse for such cf. Childs also claims the district court erred and remand dismissing complaint conducting Cir.1976), Cole, (5th without we ton v. F.2d hearing alleged an oral Bank’s Reserve motion need whether error not discuss urges dismiss. Because Childs this court error in fact. decide merits of his claim rather than re- *2 Dodson, Harris, (argued),
Tyree B. Harris Nashville, Tenn., Al- Aden, Robinson & len. McLellan, III, McLellan,
John John S. S. Tenn., (argued), Kingsport, Alfred Knight D.C., for Washington, Neal P. Rutledge, Blanton. Willis, Jr., DeLaney, Robert
William R. L. Nashville, Tenn., Alfred John S. Knight, Tenn., for Kingsport, McLellan (argued), Hood. Arthur, Brown, Atty.,
Joe B. Aleta John Philip (argued), Williams Asst. U.S. Tenn., Attys., Nashville, for U.S. EDWARDS, Judge, Before Chief LIVE LY, KEITH, KENNEDY, ENGEL, MAR TIN, CONTIE, JONES, KRUPANSKY and WELLFORD, Judges.* Circuit Jr., EDWARDS, GEORGE CLIFTON Judge. Chief circuit required this case this review en claims of the banc the former Governor of Tennessee and two associates deprived of a fair they have been trial. Their claim is that inade- principal quate protective employed measures were in the the trial selection * disqualified hearing Honorable Gilbert S. Merritt banc him- self from the en of this case. 12, 1981, a su- 7206(1) (1976)). On March against prejudi- them
process guard adding was issued one indictment pretrial perseding me- of massive adverse cial effect against count. The tax counts mail fraud publicity. dia The essence Blanton were severed. accept should believe that we can and We their po- used was that defendants charges accomplished by much of the able work *3 Blanton would that friends of sitions to see this case. We which first heard panel1 the Ten- licenses from liquor retail receive in detail afresh and shall therefore deal Commission Beverage Alcoholic nessee claim stated above only principal with the Blanton for person paid one (ABC) and that 298, 700 F.2d original panel, the upon which of his license. receipt ordered a new appellants with and agreed against de- important most evidence “The trial. deposition of videotaped was the fendants we now subdivide into three This claim wit- was an immunized Jack Ham. Ham our answers: provide liquor of a recipient who was the ness 1) Judge employ District the best Did the tenure and who Blanton’s during license ex- in his voir dire procedure possible Blanton a cut of agreed give to allegedly jurors in prospective amination of the law. Ham in violation of state profits this case? $1,000 cam- contributed Blanton had Probably not. paign. 2) Did the trial abuse the broad dis- allegedly the scheme “Blanton’s role in by rulings cretion vested in him the of licenses be liquor that he directed that was of the United Supreme Court like persons friends or political awarded impaneling jury? in his of this States He profits. offered a cut of Ham who No. by appointing allegedly accomplished 3) of Did the voir dire examination ABC, two of the three commissioners an produce suffice chairman, King, and the including the S.J. trial? fundamentally fair appoint able to was therefore commission Yes. and assistant di Blanton allies as director accept panel’s statement original We allegedly Blanton of the ABC. rector
of facts: cut of illegal twenty percent an agreed to store, with the liquor of Ham’s profits Blanton, “The who three defendants are pur of Ham’s coming in the form payment Janu- governor served as of Tennessee from worthless oil stock from allegedly chase of Allen, 1975 to James M. ary, January, (This $23,000.1 pay method Blanton for special gover- who was a consultant to the Ham.) savings in tax ment resulted Blanton nor for the first six months of the a transfer allegedly approved Blanton also and had served as Blanton’s administration a more lucrative Ham’s license to liquor campaign manager, Clyde Edward location. Hood, special who was a assistant November, charge been in to have governor January, alleged from 1975 to “Allen was liquor li- determining awarding charged 1977. Defendants were on October no though position even he had 29, 1980, censes in a twelve-count indictment up set an allegedly helped He (18 counts of mail fraud the ABC. eight U.S.C. §§ involving store ownership liquor (1976)), violating illegal one count of attempted he chairman and (18 (1976)), Act the ABC Hobbs U.S.C. §§ liquor in a store a concealed interest (18 acquire conspiracy and one count of U.S.C. consulting of a lucrative (1976)). charged guise alone was under the Blanton
§ was made un- payment one filing (only counts of tax evasion and contract with two respon- contract). allegedly He (26 der the false tax return. U.S.C. §§ Circuit) Eighth (now Judge original panel Judges who Senior 1. The consisted of Circuit Engel opinion. panel of this Albert J. and Damon J. Keith wrote Court, Floyd Gibson and Chief Emeritus Ham. The prosecute new ABC not to ABC hiring agreed assistant di- sible lu- help though rector to control the ABC even it would not revoke Ham’s agreed employee even a state at the the basis of truth- liquor Allen was not crative license on time, he instructed the assistant di- in judicial proceed- ful he made statements rector to recommend the transfer of Ham’s ings. recom-
license to a better location and pub- massive preceded “The trial was against per- mended transfer of other Nashville, the case in Tennes- licity about sons’ licenses to that area. state, see, throughout as one allegedly planned acquire “Hood governor. in the trial of a former expect liquor interest in two stores in contraven- from The record contains over articles tion of various state laws and he received a defend- newspapers Nashville adverse to profits share of the of some the newly approximately ants. There are 160 articles liquor allegedly licensed stores. He told the *4 preceding which in the six months appeared director of the ABC who Blanton’s friends prosecution, the trial about the instant were so that the director would recommend brother, prosecution of Blanton’s and the persons to the ABC that those receive li- prosecution of Blanton aides.6 former allegedly helped accomplish censes. He the There are more other ar- seventy-five than by talking transfer of Ham’s license to ABC ticles which while Blanton was appeared King by suggesting particu- chairman governor concerning his administration.7 person lar as the assistant director who twenty-two There are another articles on persuade appointee the other Blanton Ham, the deposition of Jack the last of Finally, on the allegedly commission. he appeared four months before the be- suggested pay that Ham Blanton’s share of ginning large part of the trial.8 A profits by buying the worthless oil stock original published indictment was verbatim (although against pur- he later advised in the There was newspapers. Nashville chase). proof concerning also an offer of the testi- mony
“The scheme violated of news directors of three Nashville Tennessee’s laws against pretrial public- an ABC commissioner an television stations about the having store,2 was liquor public ity. interest in a officials There can be no doubt there having store,3 pretrial publici- an interest in a amount of liquor extraordinary undis- stores,4 other cases in- liquor ty concerning closed interest in this case and bribing public officials.5 The the Blanton administra- charge volving federal was officials of (1) that the acts tion and some of Blanton’s relatives. conspiracy constituted a defraud the by United use of the States 20, 1981. “Jury began April selection on mails in furtherance of defendants’ scheme 22, Testimony began April in the case on to violate (18 371), Tennessee law U.S.C. § 29, 1981, May and was concluded on 1981. (2) when coupled with mailings, constituted arguments instructions Closing mail fraud by defrauding the citizens of 2,1981. court completed were on June Tennessee of the honest of their services three mail fraud counts and the dismissed government (18 2,1341), officials U.S.C. §§ The jury Hobbs Act count as to Allen. (3) (interference violated the Hobbs Act 9, 1981, deliberated until June and found violence) commerce by (18 threats or Blanton on all eleven counts. It guilty 2, 1951). U.S.C. §§ guilty found Allen on all the counts the (six
“The mail fraud testimony prosecution of the chief court had not dismissed witness, Ham, count). videotaped pursu- Jack was and one It found conspiracy counts ant 15(a) to Fed.R.Crim.P. on six mail fraud counts and guilty because of Hood poor count, Ham’s him not videotape conspiracy health. The was ed- but it found ited and for mail counts played guilty at the trial. on the other three fraud The government obtained Act count. Blanton was testimony Ham’s and the Hobbs $11,000. offering him from three and fined immunity prose- years federal sentenced to cution and fined years and civil tax to two liability, and the state Allen was sentenced Trials,” 21, Not all 1980. Nov. Federal Court eighteen $14,000. Hood was sentenced De- negative: “Blanton’s were of the articles $14,000.” and fined months Eye Good,” 1980; 6, “Friends Nov. fense Said Legal Blanton,” 1, Two Nov. 1980. for Fund $38,000 allegedly paid for 1 A total of was articles before trial there were months $23,000 the oil stock. In addition to the “Former aides: activities Blanton criminal profits, liquor cut of the Ham $15,- Blanton’s store 1981; 23, Guilty Plea,” Feb. Enters Head ABC Ham, nephew, paid and his Bert another 25, Plea,” Guilty Feb. Aide Enters “Ex-Blanton help fee 000 as a finder’s getting for Blanton’s 1981; Probing Associate’s Blanton “ABC housing project on a a loan were 26, Admission,” Feb. After Kickback License building. began the The month before the 1981. 57-l-108(a) (1980) pro §Ann. Tenn.Code issued, prompting superseding indictment was person any employed in vides: shall be “[N]o “Blanton, Indicted publicity: 2 Aides more Again,” commission, person capacity by the if such days 12, four 1981. As late as Mar. any any interest retail shall have ... ... improper articles linked Blanton before trial as such Tennes dealer licensed in the state of “Tapes Link Blanton pardons state inmates: see.” Commutations,” 1981; “Taylor Apr. to 30 57-3-210(b)(l) (1980) Ann. § Tenn.Code Clemency Ray Tape To Links Blanton on Deals,” provides: Apr. brother Gene 1981. Blanton’s or No wholesaler’s retailer’s license shall be shortly trial be- news before also in the person public issued to who is a holder of a improprieties: alleged Blanton “Gene cause office____ any Income,” It shall $72,000 be unlawful for such Telling of Not Be Accused To person to have 1981; interest in such wholesale Bought Autos “Gene Blanton Mar. business, directly indirectly, Funds, or retail either Frensley,” Apr. Says With Business loan, proprietary or means of mort- dealt with Most of the other articles lien, gage, participate profits or to in the pretrial aspects proceedings. procedural any such business[.] *5 7 patronage dealt with Most of these articles 4 57-3-210(f) (1980) pro Tenn.Code Ann. pardon § the Blanton administration and in the any person vides: “It shall be unlawful for to including prisoners, pardon of commut- the of in, ownership participate, have ly or either direct ing prisoners, 52 23 of them of of sentences indirectly, profits any or in the wholesale murderers. chapter, or retail business licensed under this “Ham of the articles were entitled: Some unless his interest in said business and the 1980; Blanton,” Meetings Dec. With Details ” nature, ap extent and character thereof shall Partner,’ Dec. Hood was ‘Silent “Ham States 7, 1980; ” pear application on the .... Out “Ham Threatens TV Cameramen (1975) provides: Ann. 1980; § Tenn.Code 39-801 Courthouse,” Ad Dec. “Ham side Any person offers, Riches, Pay corruptly promises, Testimony who Refutes On mits Blanton,” gives any any or gifts, gratuity, executive ... officer ... Dec. 1980. value, thing or with intent act, decision, vote, opinion, to influence his QUESTION judgment, any matter, cause, pro- or ceeding on or proce- best employ the judge the trial Did may pending, which be then brought or examination in his voir dire possible dure may which be law before him in conviction, capacity, shall, his official be on jurors in this case? prospective the imprisoned penitentiary in the .... (1975) provides: Tenn.Code Ann. 39-802 § Probably not. Any corruptly executive ... officer who only way question fairly this can accepts, agrees accept, any gift gra- or or is to read answered the entire content tuity, thing agree- or of value ... under an vote, understanding ment or with an opinion, that his dire, juror pages the voir which fills 289 judgment given or is to be in every this trial record. We believe that manner, particular upon any particular or the en banc performed on court has is, any question proceeding side of or which may by brought, or law be before him in his although obviously this differences of task — capacity, that, capacity, official in such he remain. interpretation reprint We cannot any particular shall, appointment, is to make dire, voir reprint entire but we can conviction, punished by imprisonment on it: penitentiary panel’s concerning statement facts in .... very negative Most of the came The trial court conducted the voir dire shortly after the indictment: “Blanton Faces en masse. It group seated a of venire- 30, 1980; 12 Counts.” Oct. “Enlist Blanton’s ques- men in the box and directed Obtaining Profits,” Aid in Licenses for Future 30, 1980; Oct. “Allen’s Influence Had Wide group, tions at instructed the but 30, 1980; Success, Impact,” Oct. “Hood’s rest of the courtroom to veniremen in the Talent,” Woes Laid To Misdirected Oct. pay ques- listen to and attention to the 1980; Investigations Span “Blanton-Era 30, 1980; years,” Oct. equally as the apply tions “Blanton Faces Two During problem to all those selected. the course had a my more serious than col- trial pointed of the voir dire the court out leagues recognize, in dissent tend to that he subject the case had been the 'recognized problem greater to a extent considerable media attention. It com- him, than and that he they credit to took sure mented that it that all the ve- was some very significant measures to deal with case, niremen had heard it, to which sufficient give fail may that some of them have formed weight. opinion concerning probable
tentative Governor for and was elected Blanton ran guilt or innocence defendants: The in highest to the office Tennessee state court then said veniremen: government. guaranteed This fact that for is, you will put test be able to [T]he elected, which he term of office to from your you may minds whatever constantly he in the limelight would be heard, have seen any opinion every subject act would be and word have you tentatively comment. The two defendants ac- other reached, and then to decide this case cepted state positions government solely you on the facts as determine close its head. proximity to Under be, them to the sole on basis of the Amendment, First neither defendants evidence which will be adduced nor United (or court in the States could application trial after of the appropri- should) prevented public media ate law? comment which One of the ensued. One was excused because she indi- judge’s major problems was how to choose a cated she be impartial. could not As new potential jurors without all re- having veniremen the jury entered box to re- peatedly exposed reexposed to adverse place the who ones were excused for media trial ever started. before reason, whatever the trial court would record, As we read this he decided deliber- essentially ask them same ately reexposure and reem- avoid such pretrial publicity. It usually said it phasis. wanted to “particularly emphasize” the *6 He did the repeatedly following ques- ask point. ninety-two Out of veniremen ex- tion, jur- addressed to the nine specifically amined, a of thirteen were total excused ors then phrased seated in the box and they because indicated they opin- had an to fit specific lengthy circumstances of the ion prejudice they put could not aside. voir dire thirteen, examination:
Of these four linked their preju- dice pretrial to publicity. Seven of these is, you put test will be able to [T]he thirteen were excused when they said your you may from minds whatever have they had opinion, an without the court heard, any opinion seen and which and inquiring into the nature or strength of you reached, tentatively have the opinion or whether it could be put solely then to decide this case on the aside. Twenty-nine other veniremen you be, facts as determine them to on were excused for cause for other reasons the sole basis of the evidence which will and the parties excused twenty-eight oth- application be adduced trial in this after ers with their peremptory challenges. appropriate of law? the If we total disqualifications the varying repeated In he this language resulted from by measures taken the trial question 18 times. The voir dire additional judge to impartial secure an jury, we find record, believe, we that he was indicates that 70 out of a total of 92 veniremen were sensitive of every suggestion prejudice to excused. jurors’ which came answers or either from
Accepting as do appellants’ we conten- and in most in- defense counsel suggestion, tions that they had been the subject pow- of stances free use of his responded with massive publicity of it negative er to for cause. He exer- excuse a —much —we believe the trial judge initial in this case cised that power times. particular, Blanton. some of assumption Governor judge The trial acted on the jurors all in this case had that the potential charges that these were effect to of the mas- subjected portion selling been some pardons aids were con- Governor’s coverage the defend- concerning sive media of days in the last victed criminals assumed apparently ants in case. He this point, administration. At one Blanton coverage inevitably would have that media joined in a for addi- Attorney request impact had prejudicial some presumably related this tional voir dire persuade best he could do would be judge the trial de- While specific problem. the venire to disclose individual members of time, shortly there- nied the motions at that along derived therefrom with any biases after, prospective jurors as he addressed might preju- have a any associations which follows: The this dicial effect. critical I gentlemen, THE Ladies and COURT: when con- approach, case whether this pretrial publicity have talked lot about together precaution- sidered added with this that has occurred in connection taken was with- ary by judge, measures have case, you probably the fact so judicial in his discretion was exer- I read, about the case. things heard produce jury. cised as to you possibility not discussed with opinion initially of this author familiar with some of you may have been persuaded by opinion Gibson’s Mr. that surrounded Blanton reversible error had been com- panel that gover- term of as at the end of his office judicial or de- mitted denial of either you nor. It seems if were in probable individual con- fense examination of that you and area this time State cerning possibly preju- of specific instances something heard read and saw and influence. The factors which dicial media the circumstances. and which account for changed any you Do have recollection of the en banc by majority affirmance would cause or circumstances which facts 1) this rec- reading court were: careful to hold that you either be inclined ord, 2) pre- difficulty of the appreciation Blanton, or the other against Mr. venting resulting error from prejudicial hand, unfairly to feel that he had been repetition during jury selection of media have been vindicat- dealt with should possible comment about defendants from going period ed? are back a fair We from prejudicial statements members time. venire about such questioned were you carefully your ask to search But I comment, 3) appreciation sensitivity on that consciences your memories hint of bias and his follow-up as a point. you And ask power free use of his to excuse members of *7 anything that, you of remember does jury the venire from service in the interest the under which concerning circumstance jury, 4) securing of unbiased the availa- governor’s' the office Mr. Blanton left bility questionnaires of the to the defense way your judg- in affect which would as an to the de- important tool available incapable you ment in this case or render venire, 5) the investigation fense for of fair completely being of increase number perempto- substantial of part his in this case? concerning him and judge ry challenges ap- which trial the fact the trial proved finally, 6) judge this statement the trial While in (and judge specifically found with substan- the dramatic headlines repeating avoided support) tial record that the result achieved some of the news above appeared process in this selection was a fair and jury pardon charges, sale concerning stories impartial jury. to us that the members of it seems obvious responded both understood and venire A major aspect appellants’ of claim of response his believe this concern. We examination prejudice in the voir dire con- voir dire examinations documented in the cerned pretrial publicity which pertained 1537-1728. All of prosecutions Appendix pp. aids recorded in other or relatives 822 pages any QUESTION
these
merit careful
2
attention of
reviewing authority.
judge
Did the trial
abuse the broad dis-
by
cretion vested in him the rulings of the
then,
Why,
have we indicated
the United
Supreme Court of
States in his
handling
of the voir dire
not have been
impaneling
jury?
of this
The
wholly adequate?
answer is that we do
this question
We answer
with a defi
disapproval
not wish to
imply
this Circuit
nite “No.”
of all requests for individual questioning of
jurors
presence
out of the
Supreme
the entire
The United
Court has not
States
venire,
se rule which it
accomplished
anyper
requires
established
whether
in chambers
trial
in the
judges to follow
voir dire of
or at the bench.
In many trials a limited
Rosales-Lopez
venire.
v. United
See
number
questions,
of defense
preferably
States,
182,
1629, 68
451
101
U.S.
S.Ct.
submitted
the court
through
by
with waiver
Florida,
22
421
(1981); Murphy
L.Ed.2d
v.
the questioner
any prejudicial
effect of
794,
2031,
U.S.
one) should have employed judicial his judge’s dis- examples of the Selected cretion. handling voir dire of the necessary repeat questions to all of be to down designated come I have been will be asked. all of in this trial because participate and I purpose, have re- and for that regard in Tennessee In that judges
the federal all of can hear me. The you ask whether participating.2 themselves from cused there the back of gentlemen and in ladies partici- from to be excused They asked courtroom, having any are diffi- you them each of in this trial because pating I take it that hearing at all? culty that reason might be some felt that there making possi- it system address public fair and completely he could not be either proceedings. you for to follow ble public, perhaps and impartial, or that you if have an gentlemen, and Ladies themselves, attorneys parties a if there question, answer to affirmative that could might feel people, other question made in a suggestion is some completely be fair. not have a person you a you that know you that reason I mention only The matter, given your raise feeling about very judges is to indicate that if now indicate that circumstance to hand and remove themselves freely frankly and then follow probably We will Court. trial, in a if in the participation from the question. that up on any of this reason occurs inquiry course careful extremely to be urge you And I fair, could not be why perhaps you to you may that be answering any question in have no reluctance whatever you should only precise Answer you. put that fact to the Court. indicating in any- Do not volunteer asked. question asked indicate questions may to be question of the thing beyond scope reason to the or to counsel some Court listen again, you I ask that itself. And any you might difficulty that one of have then limit question and carefully to being perhaps fair in this case. And answering the your precisely answer may this importantly, inquiry even more addi- volunteering any without question, why reason you yourself indicate to some opin- additional any information or tional fair and you might difficulty being nature. ion, of that anything impartial. may perhaps very likely It instance, you are asked if you if For something you thought have never say, “Yes.” you witness given know may suggestion But there be a yourself. you the fact that asked if And are you will cause question contained make more you would person know that have diffi- you say, “Perhaps would him, an- him or disbelieve apt to believe culty being fair.” And fairness no. Do simply yes or swer that honesty parties, to the indicate that fact believe him be- “I would never say, not course, will be you Court. And of to be a liar.” I know him cause excused from further duties in the You consider Put it in that form. matter. strong, prospective a little but that. And the venire, statements like Ladies have made gentlemen of the a state- after required that are while the remedies questions particular in the courtroom is made ment like stage procedure of the are directed pri- vol- please don’t ones. So are strenuous marily to the 12 in the persons seated information, and additional unteer box, I also ask that each of you opinions express any particularly, carefully listen all of the express. been asked have not you that are asked so that if at some later gentlemen, stage of the ladies proceeding you Obviously, are asked to difficult to be fair and you occupy box, a seat in the it will not Actually subsequent Judges death of wife. in the all of the U.S. District den illness Middle District of disqualified from Tennessee had replaced Circuit a U.S. He was completion themselves. After of the selection com- of Tennessee who District the Western jury, the first trial in this case was pleted the trial. *9 tragic forced to recuse himself due sud- if you parties QUESTION knew And I therefore introduce them to well. jurors Did the voir examination of the order that in you in are named suffice to produce impartial jury and a the indictment. fundamentally fair trial? point At the trial this identified The answer to this question “Yes.” and those
defendants associated with the The trial deal judge elected to with the prosecution and the defense as counsel. problem 1) extensive by questioning con- context, general same In the ladies and cerning juror prior impact media associ- gentlemen, partially I recognize be- ations, coupled with many dismissals based cause of the fact that these defendants possible 2) even prejudice, very on hints of offices, held such this entire has matter in per- substantial increases the number of subject been the of attention of the news challenges emptory available to each de- I am sure that all of have you media. (30 all), 3) on fendant in reliance de- something some time read about this case questionnaires fendants’ use of detailed newspapers, in the have heard something concerning jurors coupled all potential concerning time, it on the radio at some by sensitive of responses court or have even seen or heard reference to it arising challenges defendants’ from such on television at some time. use. Similarly, it is entirely likely that some you may of What are have formed some follows selected illustrations or tentative ojpinion concerning probable guilt techniques or results each these as the innocence of some in- persons judge employed them: volved, including these defendants. 1) impact Media associations. However, applied the test to be in deter- What are from excerpts follows the 289 mining your qualifications to sit as page jurors: voir dire examination of is not whether you have something heard Is anything there in case from the “[THE news media or COURT:] fact, are you the fact a state you whether have formed any kind a employee, that would make this difficult tentative on reports. based such you case for participate in? put Rather —and I in form a is, test you will be able to —the MS. YATES: “[POTENTIAL JUROR:] put your from minds you may whatever No, of, not that I nothing know because has heard, have seen and and any opinion been since I been discussed have in the which you may have reached, tentatively Department Mental Health over at Central and then to decide this case on the solely It has never State. been mentioned be- you facts be, determine them tween the two us in the office. sole basis the evidence will you “THE Do COURT: hold civil ser- adduced this trial after application of position? vice appropriate law? “MS. No. YATES: I take from your silence that none of
you feel that he she preju- has been “THE I am enough COURT: not familiar diced what you may have heard or with Tennessee structure to intelli- perhaps seen. this. gently approach you provi- But are Yes, ma’am? employee, your sional what status? (SHEILA JUROR NO. 1 GIBSON): I “MS. am the ordering YATES: clerk have been sitting here listening you. Department. the Maintenance I order all And I am not sure that I impar- would be supplies. tial. I do idea, have somewhat of an “THE But no you COURT: assured from things I have read and heard. position? tenure THE you COURT: Thank much. very You (Shakes excused. head.) “MS. YATES: *10 Church m Mur- are, Temple Baptist trustee you put And it “THE COURT: my bookkeeper And wife is a freesboro. subject would be to dis- bluntly, you most the nature of the cause; And I’m —due to there. it correct? charge without just to make a trial, may I not be able No, pretty I am well situ- YATES: “MS. concerning my concerning judgment — ated. And it cause un- may nature of the trial. event, do any you But in “THE COURT: as far as the ridicule or embarrassment due any position on basis your not hold goes. work church any protection? service or kind of civil particularly I don’t really “THE COURT: No, sir, I am not. YATES: “MS. why. understand at least conceiva- it is “THE COURT: So Well, They may give “MR. LESTER: if— ramifica- any political if there are ble that hard time a, give me a you may me know — attributed to vote might your be tions and the Mr. Blanton about it if some—if case, suffer some conse- might you in this acquitted. others were theoretically? at least quences, a reli- essentially Is this “THE COURT: that. I don’t know about YATES: “MS. are em- you gious organization Well, very I doubt seri- “THE COURT: ployed? happen, things of these would ously any if Yes, Temple Baptist “MR. sir. LESTER: part is the better Yates. But discretion Ms. Church. will be excused. you of valor. And you suggesting “THE Are COURT: name, sir? your “What is that is not religious organization there is (LARRY G. WIL- “JUROR NO. employees participate to have its willing LIAMS): Williams. in civic affairs? fully all the you “THE Have heard COURT: they wouldn’t “MR. I’m sure LESTER: this that have been asked here it in as far as the participating mind me morning and afternoon? But I don’t know jury goes. trial and case. particular Yes, sir. “MR. WILLIAMS: solely mean “THE COURT: You anything
“THE Has that’s been COURT: of it? basis of the duration reason you any asked or said indicate to not sit as a here?
why you should No, subject sir. On “MR. LESTER: beverag- the alcoholic Concerning matter. Yes, men- “MR. sir. You WILLIAMS: that we covenant es. It’s in our church newspaper. tioned the media. And the don’t— That. misunderstood what “THE COURT: you You mean have read
“THE COURT: may You be Mr. Lester. you saying, were them, have formed a conclusion? you your anything tion that’s been problem 145— “[THE COURT:] “MR. WILLIAMS: “THE COURT: you any 46) [******] frankness. You concerning your participation that has been reason asked, suggested Very why I’ll ask all Yes, sir. well, we said, there excused. ur might appreciate any ques- you, be a as a (Tr. one has swers ‘of the other tatively here excused. ing? swer to (Tr. 251-52) “THE COURT: “MR. BELL: [******] today as alternate any question Thank Yes, would. you Mr. five different Bell, persons your has been asked here than the seated this morn- frankness. your ten- an- an- a differ- There would be Yes, “THE COURT: impartial juror? fair and sir? ence? (WOODROW
“ALTERNATE NO. 4 LES- Yes, “MR. BELL: sir.
TER) of the trial —I’m a Due to the nature *11 difference, acquainted “THE What is “THE REPORTER: ‘I’m COURT: sir? I already Bernie Weinstein. And have opinion.’ formed an I already
“MR. BELL: have formed my opinion? you “THE All Thank right. COURT: very (Tr.
“THE You do have an You be excused. may COURT: much. ultimate
concerning the issues the case? 279-81) “MR. BELL: Yes, sir. :{: sf: [*] jjs “THE you, Thank Mr. Bell. COURT: addressing myself “THE COURT: You excused. may be alternates, again we ask newly seated morning, “Good Mr. Pigg. I’ll amend to hear you every- whether have been able that. Good afternoon. thing morning. been said here this that’s Have all you heard the statements of the
“Have been able you everything to hear happened that’s here today? questions Court and all have been asked? 2 (JOE PIGG) “ALTERNATE NO. H.
Yes, have, I Your Honor. heard, “On the of what do you basis you you any now feel —do know reason
“THE anything COURT: Has that’s been be a questions why you perhaps said or that have could not fair and been asked indi- you any you cated to reason why could not impartial juror this case? juror serve as a fair this case? “Mr. Hibbett? Honor, I “MR. PIGG: Your would like to (EUGENE “ALTERNATE NO. 1 HIB-
be for the I’ve excused reason already Yes, BETT) sir. I don’t I think would be opinion. formed an good for either side. I know candidate may “THE You be COURT: excused. many—(cid:127) trouble, having “I’m a little reading your express opin- “THE Don’t any COURT: name. ions. know you persons Do who are in- (MARGARET “ALTERNATE NO. 2 L. volved in the case?
KEMNETZ) Kemnetz. “MR. HIBBETT: Yes. Kemnetz, “THE thank you. COURT: Is “THE You for either COURT: indicated an third letter “M”? side. KEMNETZ: Yes. “MS. right. “MR. HIBBETT: That’s Kemnetz,
“THE All Ms. right. COURT: while you were seated in back of the event, your “THE But in COURT: (sic.), room you were able to hear all Hibbett, own personal feeling, Mr. is that statements and of the Court? you you to be fair difficult for —it serve, impartial you if were asked to on Yes, “MS. KEMNETZ: sir. of some your knowledge basis of “THE Did anything COURT: that’s been people involved? said or suggest asked you any reason why you could not be a fair in this “MR. HIBBETT: Yes. case? much, “THE you very COURT: Thank Yes, KEMNETZ: sir. “MS. I’m ac- sir. You be excused.
quainted with Bernie I Weinstein. And “THE Ms. COURT: Meehan? already have formed an opinion. (NANCY NO. 1 L. MEE- “ALTERNATE “THE reporter Will the repeat COURT: HAN) Yes, sir. to the answer Court? Have heard you every- “THE COURT:
“MS. KEMNETZ: I’m acquainted— been said? thing that’s No, “THE you COURT: don’t want
to— Yes, MEEHAN: I have. “MS. why you reason if were seated anything you “THE Is there COURT: alternate, you required reason could not an and then were you any suggested itself, juror in this case? Jury a fair and as a member of serve fair? you could not be One, reasons. I’m MEEHAN: Two “MS. approval my application waiting Well, sir, ALEXANDER: Your yes, “MR. Two, already I’ve
police department. Honor. opinion. formed *12 I understand. You “THE COURT: don’t the second “THE What was COURT: mean, yes, you— there is a reason? Or one? Yes, sir. “MR. ALEXANDER: I’ve formed an already “MS. MEEHAN: What is that reason? “THE COURT: opinion on the outcome. ALEXANDER: Well— “MR. you, well. Thank Very “THE COURT: opinion, Don’t state an “THE COURT: may Ms. Meehan. You be excused. or— you somebody, sir. Do know Mr. morning,
“THE COURT: Good you everything Hicks. Have heard that’s I’m acquainted “MR. ALEXANDER: morning? here this happened Frensley. with Bob (WILLIAM M. “ALTERNATE NO. because of that ac- “THE And COURT: Yes,
HICKS) sir. whatever it quaintanceship friendship, is,— suggested Has of it any “THE COURT: fairly couldn’t serve
any why you reason Friendship. “MR. ALEXANDER: in this case? impartially “THE feel it would be —you COURT: long-time I’m a friend of “MR. HICKS: you partici- or difficult for to embarrassing witnesses, Richard Fulton. Mayor one of say- pate you’re in this case? It that what togeth- I up practically He and were raised ing Court? er. Well, “MR. ALEXANDER: not necessar- grew up “THE You with Mr. COURT: for respect But I have ily embarrassing. Fulton? he anything him. And I take his word on says. Yes, “MR. HICKS: sir. you would be you
“THE COURT: Do have a continu- “THE COURT: So greater weight contact with to to his testi- ing give him? inclined person other mony perhaps than to some “MR. went all the way HICKS: Yes. We not know? you who testifies whom do through together. school Known him since Yes, childhood. sir. “MR. ALEXANDER: “THE think fact you COURT: Do Alexan- you, “THE Thank Mr. COURT: you know him and continue a to be be excused. may der. You his, friend close would that make it diffi- you morning, Mr. Miller. Have “Good you participate cult for in this case? questions been able to hear all the afraid, Honor, “MR. I’m Your HICKS: statements? would. (WALTER KEN- “ALTERNATE NO. “THE well. You Very COURT: be MILLER) Yes. NETH excused. suggested Has anything “THE COURT: Alexander, “Mr. you every- have heard you you any reason thing happened today? that’s juror? as a being trouble fair if selected (JAMES “ALTERNATE H. AL- NO. extent of the Due to the “MR. MILLER: Yes, EXANDER) sir. already I have coverage press, I feel like would opinion. “THE Have of the state- formed an COURT: ments of the Court or indicated to an affected witness. well, Very you may
“THE recognize appellants COURT: While we con- (Tr. 263-67)” excused. perempto- tend in this case that their use of ry challenges hampered by their inabil- Judge Engel’s dissent criticizes the voir ity explore juror’s each contact with me- consisting single of “a elic- expressions prior trial, dia we also are iting only (through assurance si- impartiality.” lence) p. profoundly searching aware that the most [dissent 834] As can be seen from excerpts of the tran- personally cross-examination conducted however, script, voir dire was much for a not suffice lawyer might defendant more extensive than indicated by the dis- bring into the trial record a held secretly sent. We believe that the trial judge did part juror against partic- bias on the of a securing succeed in the cooperation of the is, course, part ular defendant. It jurors disclosing possible bias. We also that reason that twelve are chosen believe that he reacted and effec- quickly verdict guilt and the must be unanimous. tively protect defendants from such judge’s grant many The trial of so addition- bias. *13 peremptory challenges, coupled al with the 2) Peremptory Challenges supplied information to each prospective rule, applicable Under the Federal Rules juror in the questionnaire, official contrib- of Criminal 24(b), Procedure the govern- utes to our conclusion substantially ment was entitled to six chal- peremptory sum total voir dire as conducted lenges and the three defendants were enti- was within the of the trial judge. discretion tled to ten. The defendants sought ad- 3) Questionnaires ditional twenty challenges, ten for each de- above, As indicated each in the en- fendant, and the government objected. tire venire was asked to and did furnish
The trial judge granted defendants’ re- quest. Only one of the answers to the questionnaire, defendants used all official peremptory challenges. is produced following page. on the *14 Court,
THE
Supreme
LAW OF THIS CASE
with Justice Tom Clark
Court,
writing for
said as follows:
The fundamental standard of review of a
trial
essence,
right
guar-
In
judge’s
trial
conduct of a voir dire examina-
a fair
criminally
antees to the
accused
tion is set forth in the most dramatic case
panel
impartial,
“indiffer-
Supreme
where the
has dealt with
Court
jurors.
ent”
The failure to accord an
question
the central
of this case.
hearing violates even the
accused a fair
Dowd,
717, 722-24,
In Irvin v.
366
81
U.S.
In re
process.
minimal standards of due
1639,
499,
1642-43,
(1960),
Oliver,
92
S.Ct.
L.Ed.
rule, however,
in a fair tribunal
is a basic
in a
requirement
given
application
of that
Murchison,
of due
In re
rule
process.”
deprivation
prisoner’s
349
works a
of the
133,
623, 625,
life or
liberty
process
U.S.
136
S.Ct.
99 L.Ed.
without due
[75
California,
219,
law.” Lisenba v.
314
942], In the ultimate
U.S.
analysis, only
280, 289,
62 S.Ct.
sufficient if the juror supra can and our lay very aside his instant case is impression great. case, opinion In the Irvin and render a ver Justice Clark dict pointed based on the out: presented evidence in
court. Spies
Illinois,
131,
v.
8
U.S.
Here the “pattern
deep
and bitter
21,
80;
S.Ct.
31 L.Ed.
Holt v. United
prejudice” shown
present
through-
to be
States,
245,
U.S.
31 S.Ct.
54 L.Ed.
out the community, cf. Stroble v. Califor-
1021; Reynolds
States,
nia,
United
supra.
U.S.
96 L.Ed.
[72
“[L]ight impressions
may fairly
sup-
strong
deep impressions,
which
be
those
which will
posed
yield
testimony
may
against
testimony
may
that
close the mind
that
offered;
open
them;
opposition
which
leave the mind
to a
be offered in
which will
testimony,
force,
fair
testimony
consideration of that
constitute
combat
that
and resist
its
do
objection
juror;
no
objection
sufficient
to a
but
constitute a sufficient
to him.”
872],
clearly
front-page
was
reflected in the sum
Even the occasional
items
a
total of the voir dire examination of
were
rather
than
straight news stories
majority
jurors finally placed
of the
invidious articles which would tend to
Eight
box.
out of
the 12
arouse ill will and vindictiveness.
If
thought petitioner
guilty.
was
With such
him as
campaign against
there was
minds,
opinion permeating
an
their
infers,
petitioner
by
it was sidetracked
would be difficult to
that each could
say
appearance
of other “labor bosses” on
exclude this
from
preconception
guilt
spotlight.
the scene who
shared
his deliberations.
process
selecting
jury began
In our present
juror
helped
case no
who
exclusion from the
of all
panel
expressed
pretrial
determine the case
con-
prospective jurors
summoned as
persons
viction of appellants’ guilt.
Beck,
in the
12 trial of Dave
November
addition,
all
were excused
persons
Jr.
Infinitely
present
closer to our
case are
who were in the courtroom at
time
the facts and law in a case written for the
Next,
during the
of that case.
Supreme
by
Court
Justice Clark —the
by
members were examined
the court and
same Justice who wrote the Irvin v. Dowd
length.
counsel at
Of the 52 so exam-
opinion.
ined, only eight
pre-
admitted bias or a
Washington,
In Beck v.
369 U.S.
formed opinion
petitioner’s guilt
as to
555-58,
(1962),
82 S.Ct.
were often or relegated pages. lay impression opinion can aside his 832 a verdict based on the evi-
and render 95 at 2035. It is not necessary S.Ct. Id., 723, dence in court.” at presented jurors totally ignorant of the facts Irvin, 81 at 1642. supra, S.Ct. and issues at involved. 81 at 1642. S.Ct. say pretrial publicity
We cannot any was so intensive extensive or the To hold that the mere existence of panel the entire preconceived guilt examination of revealed notion as to the accused, more, such that a court prejudice could not be- innocence of an without jurors of the presumption lieve the answers and would is sufficient to rebut compelled preformed to find bias or a prospective juror’s impartiality opinion matter of law. Compare impossible as a would be establish an Dowd, 723-728, Irvin It if the supra, v. at standard. is sufficient S.Ct. 1642-46, lay
at can aside his impression where sensational and render a verdict based on the evi- permeated adverse to the accused court, presented (citations dence tried, small town which he was the voir omitted). dire examination indicated that 90%
370 prospective jurors and two-thirds of Id. at at 1642. S.Ct. those seated on the had an opinion as (Citations omitted.) guilt, accused unsuccessfully ‡ 4s 5k sk Sfc challenged for cause several persons ac- dire, Yell During the voir Juror cepted jury. on the peti- fact that might asked if there was reason she tioner did challenge not for cause un- be unable to return an unbiased and jurors so is strong selected evidence prejudiced verdict. answered “No.” She that he was convinced the were not trial, hearing At the after the she indi- biased and had not formed any opinions cated that the conversation she overheard addition, as to guilt. we note that had no her bearing on decision. Al- while the Washington Supreme Court juror’s a though impartiality assurance of was divided on the right is dispositive petitioner’s rights, not of an accused to an impartial grand jury, judge’s finding impartiality petitioner’s denial of the motions should be set aside only upon showing based on prejudice the bias and Irvin, that prejudice supra, is manifest.
petit jury did not raise a single dissenting at at U.S. voice. Rose, (6th Haney v. 642 F.2d 1059-60 “While this Court stands ready cor- Cir.1981). rect violations of rights, constitutional it it is legal precedent signifi- Under this holds, also asking that ‘it is not too much that, cant following the voir dire examina- that the burden of showing essential un- tion, Judge Peck denied further motions fairness be sustained him who claims regarding the conduct of the voir dire say- injustice such and seeks to have the result ing: aside, set it be sustained not aas worth, whatever have the [F]or matter of speculation but as a demonstra- ” Jury view that the that has been selected reality.’ ble United States ex rel. Dar- Jury fair and as could be cy 454, 462, Handy, 76 S.Ct. (Tr. 291) obtained.
965, 970, 100 (1956). L.Ed. 1331 This hold, set We now both for the reasons burden has not been met. forth above reason and for one additional This circuit has adopted the above Irvin below, set forth that the trial did not v. Dowd standard in the lan- following *17 handling jury abuse his discretion in the guage: selection in this trial. “The constitutional standard of fair- that this proof Defendants have adduced no ness requires that a defendant have ‘a ’ was a biased jury. panel of impartial, jurors.” “indifferent Dowd, case, Irvin v. at 722 at the hearing At the en banc of this [81 Murphy, supra, lead counsel for opinion author asked 1642].” [421 U.S.] excused, into judge inquired the trial her or there Governor Blanton whether was evi- response The made based jury ability solely dence of bias. was render a verdict his juror cited wholly in relation to one in court. At presented the evidence no on quite deem evidence which we inconclusive. request counsel that the point did defense We have searched this record other any individually original ques- veniremen before, pertaining periods such evidence Accordingly, defend- tioned on that issue. during, posttrial or and have found none. complain heard to ants should not now be was group that dire examination insuf- above, For reasons set forth we be- voir the jury process, jury lieve that the selection al- and a produce ficient to an though perfect, not was nonetheless both fair trial. fundamentally
fair and in that effective resulted in an
impartial jury. ENGEL, dissenting. Judge, Circuit issues, We no merit to other find today The en establishes a opinion banc in this regard adopt panel opinion’s the jury in governing new rule of law selection dispositions for the reasons stated therein. involving widespread pretrial federal trials judgment The of the District Court is af- publicity. firmed. That new that where inflammato- rule is KENNEDY, CORNELIA G. Circuit is ry pretrial publicity pervasive, inquiry
Judge. knowledge and juror’s into an individual The separately only only I write what nec- highlight predisposition superfluous. significant the majority,
I consider to be fact that to the essary according inquiry, complained never defense counsel to the his in own mind whether believes District group Court about nature knowledge he can aside such lay group prospective of the first inquiry decide the case notions and preconceived they lay whether could into aside The en upon presented. the evidence only impressions opinions they may have upon the de- opinion imposes banc further solely formed and render verdict based prejudice al- proving fense burden of in court. Defense presented evidence effectively precluded though trial court assert unsuccessfully right counsel did to establish needed any meaningful inquiry participate the voir dire examination. These overrule established propositions it. evidence, however, There is no that defense respectfully dissent. precedent. I therefore counsel requested ever individual voir satisfied with the completely I remain by judge dire on the scholarship Judge careful analysis jurors’ aside ability lay impressions decision, original panel Gibson United opinions have formed. (6th Blanton, F.2d 298 Cir. States Moreover, every there is indication on the the law 1983).1 opinion fully That discusses judge record that the trial would have com- adequacy of voir policies concerning plied had it request with such been made. pretrial publici- widespread in cases prospective juror Whenever a indicated supplement ty. These comments additional he opinion she or had formed some concern- opinion, addressing ad- Judge Gibson’s fine ing the or innocence of guilt the defend- and, occasionally, miscon- concerns ditional ants, the judge inquiry trial made further developed ceptions which I believe juror’s lay into that ability aside the proceed- the en banc opinion. Also, during the course of whenever a new juror was called to someone who replace ings. had been control, published Bailey completely beyond
1. The
was unable to
lists
Brown as
Judges,
judge.
trial
700 F.2d at
and each
selec-
continue. Both were Circuit
process
scrutiny, however,
Judge
successively designated
tion
Chief
under
took
place
judge
due
before another
of this circuit.
of this Circuit
to sit as
selection,
judges
self-disqualification
the district
Brown took over after
of all
through
original judge,
when the
of Tennessee.
circumstances
Middle District
*18
834
”
dispositive
rights
of the accused’s
....
I.
Florida,
794, 800,
Murphy v.
421
95
U.S.
en banc opinion
unprecedented
is
2031, 2036,
(1975).
S.Ct.
jurors, individually either group, as a McKeen, 947, (1979), v. F.2d and Goins 605 concerning publicity they the sources of had (6th Cir.1979). 952-53 exposed been to or the content of such
sources they might remembered. my knowledge, appeals To no court of has
Judge
opinion
Gibson’s
makes clear that
ever before affirmed a conviction in a case
although
corpus
habeas
review of
se
widespread
inflammatory pretrial
judged solely
lection is
on a constitutional
when the entire voir dire concern-
standard, see United
ex rel.
v.
Darcy
States
question
of a
ing publicity
single
consisted
454, 462,
Handy,
965, 970,
351 U.S.
76 S.Ct.
only
(through
assurance
eliciting
(1956) (defendant
835 ability to specific opinion. questioned be about their any knowledge only disclose 1550, also that See, 1578, pretrial publicity but e.g., App. disregard 1579. “the sources concerning questioned be the reason singularly It is curious that intensity exposure” of [their] felt that more judge apparently
the trial
Johnson,
at 155.
584 F.2d
pretrial publicity.
was
specific questioning
unnecessary
was
that
had
that he assumed
the entire venire
Johnson,
our court
addressed
In
also
which
exposed
pretrial publicity
been
to
in which the
of “content”
circumstances
use
the en banc
admits was
majority
even
ques-
appropriate.
is
“Content”
questions
818, ante,
En banc Op. at
“massive.”
to “re-
prospective juror
request
tions
II.
case in
difficult
to find a criminal
fact be
care-
The en banc decision
incon
was so
completely
publicity
which the extent of
sistent with
objections
Celebrezze’s
chronicled and the
opinion
fully
Johnson,
(6th
fully
United States v.
clearly
judges conducting suggesting have broad the record in discretion faithful dire, recognized voir we discre material containing that “this some articles favorable publicity. tion is limited the ‘essential demands of neutralized the adverse somehow ” Johnson, concern- citing, fairness.’ devastating. F.2d It was States, 308, 310, Aldridge v. United Blanton other defend- ing 283 U.S. and the Governor 470, 471, (1931). appeal L.Ed. 1054 ants in this was not confined not articles requires Fairness in the trial. The veniremen matters involved only range proposed covered not the entire of an pardon allegedly psychotic *20 alleged but activity impli- defendants’ also See, 290-92, App. double e.g., murderer. alleged cated the in criminal defendants 293-94, 299, allegations 302-03. The of “in- of other activities well-known citizens of fraud, fluence-peddling,” mail the extortion Tennessee, including other members of involving Blanton and Governor co-defend- family. objective An Blanton’s examina- Allen, ants Hood and which formed the compiled
tion of the record of newspaper instant are litigation, basis of the exhaus- publicity reveals that it was overwhelming- in tively chronicled articles from Nash- ly accusatory. For in example, article ville Tennessean and Nashville Banner as 7, the Nashville Tennessean appearing April well as publications. other (two 1981 weeks before the selection As an examination of the massive record commenced) was “JAKE entitled: BLAN- reveals, a reader of the Tennessean or the TON ADMITS TAKING BID-RIG PAY- Banner faced highly complex was with a OFF.” 264. The App. opening paragraphs inflammatory illicit, story allegedly of of the article state: unethical and criminal which activities ei- C. (Jake) James Blanton admitted in ther directly involved the defendants or federal court yesterday he told a meeting linked them name and association to riggers of bid here in 1978 he wanted a others were All of responsible. who this $41,000 payoff girlfriend buy a was probabil- bound to lead to a substantial house. ity prospective jurors, particularly Blanton, 59, Miss., Tupelo, of impli- also those who read the two Nashville daily nephew, Blanton,
cated his Gene former newspapers, would be to news exposed brother, Gov. Ray Blanton’s in several rig many beyond state crimes and activities those highway paving schemes con- tracts, Gene directly looked A impassively. very involved the trial. real possibility jurors existed that would confuse App. record reveals in-depth me- the activities of Governor Blanton with Ray dia exploration of charges Governor others in Blanton’s who were family also Blanton and others were involved in selling pardons being during charged implicated in a wide days of varie- closing his ad- 1981, ministration. On April 15, ty of illicit less than conduct. one week before selection began, It was the absence of such a record in the Tennessean in an article headlined Johnson, United v. States supra, led “TAYLOR ON TAPE LINKS RAY BLAN- uphold Celebrezze to the relatively TON TO CLEMENCY DEALS” described limited voir dire there: the testimony of Wayne Arthur Baldwin2 case, In the requests by defense concerning Governor Blanton’s involvement counsel trial for questioning at further in a “clemency-peddling scheme” to sell veniremen related to pretrial publicity clemency and commutations to hardened jurors and not to generally whether re state criminals at amounts said to range specific called The record matters. $3,000 $100,000. from App. 427. A fol- of the voir contains newspa neither low-up article the next day linked Blanton nor per any description articles of other
to 30 commutations,
425, while else-
App.
relating
case.
to the
where in the same
edition of
Tennesse-
absence
clear
for inquir
foundation
an another article highlighted the ongoing
ing
juror
particular
into
recollection
trial of Gene
Memphis
Blanton in
for tax
matter,
prejudicial
was
App.
fraud.
426. A review of earlier arti-
justified
content
refusing
ques
cles
to ask
included in the record reveals the de-
Robinson,
rogatory
supra,
nature
tions.
clemency-sale
sto-
See [U.S. v.]
ries, particularly
those
pertaining
U.S.App.D.C.
at
475 F.2d
[376]
upheld by
Memphis
panel
2. Baldwin’s
conviction in
of four
this court in United States
charging
Baldwin,
Cir.1983).
counts
(6th
federal
indictment
him
“knowledge juror exposure of the opinion stresses majority The counsel with suffi- provide defense in al- particularly generous judge trial intelligently exercise cient information challenges. lowing peremptory additional challenges, without additional peremptory given salutary precaution This was indeed a jurors as to what remembered questioning However, respect- I the nature of the case. the Id. at 156. reports.” was not so problem the fully submit challenges peremptory the of much number III. used) (and were not all as allowed voir dire in this case was alto- The meaningful infor- was the absence of possible to uncover bias gether inadequate the de- have enabled might mation which jurors. precautions in the The taken challenges to exercise those fense counsel judge simply responsive trial were not intelligently. tech- dangers posed by selection questioning the extensive Likewise I, in section nique employed. As noted with acquaintance their jurors concerning voir dire examina- supra, technique witnesses, or law enforcement parties, or actually encouraged tion nondisclosure government in state personnel, persons juror inherently intimidating, bias and was the need for the curing fell far short of although clearly not intended to be. information of all: what important most acquaintance It not take extensive does coming case juror a know about did with trials to reach the conclusion accurate or inaccurate before him? What jurors fair- perceive most themselves as concerning notions did he have preconceived minded, Indeed, objective individuals. most to con- opinion appears it? The en banc many, are. It is also a fair observation that enough asks other clude that if one but jurors if not most remain as incon- prefer to risk in not questions, asking the inherent spicuous possible during voir dire. This relevant is somehow dis- the most only natural. Jurors find themselves ask it seemed sipated. only why One need strange environment. Even the best ef- juror to the trial that no important judges forts of trial cannot attorneys knowledge precon- any specific disclose quite dispel atmosphere the courtroom prejudice ceived to understand forbidding formality which inhib- naturally juror should a not Why of this method. speech. its volunteered The voir dire here the court Obviously volunteer information? a classic
presents case of such reticence the rest of the disclosing, feared that in so part jurors during questioning con- be contaminated. might venire somehow cerning their with personal acquaintance fear was suggest that if that respectfully parties and anticipated witnesses. On suppress justified, the answer was not number of occasions there was no response altogether. If the dreaded the information questions concerning familiarity when ve- the entire answer would contaminate put witnesses were to the venire en masse nire, contaminate the would it not also why yet attorney knowledge when an had irrespec- such notions juror who entertained particular juror that a was familiar with a be- subjectively he or she tive of whether given readily witness that admitted knowledge. such some did lieved it would? Although solidly
IV.
were
estab-
Peremptory challenges
law. Blackstone
early English
lished
judge’s
trial
refusal to allow the de-
pro-
as “a
peremptory challenge
hailed the
fense to discover what the veniremen had
humanity
vision full of that tenderness and
concerning
read or heard
Blanton not only
are
prisoners,
English
for which our
laws
adversely prejudiced
ability
of the court
4 Blackstone’s
justly famous.”
Commenta-
cause,
weigh challenges
and counsel to
Alabama,
(1822). In
ries 352
Swain
profoundly debilitating
it also had a
effect
202, 219,
824, 835,
13 L.Ed.2d
upon
intelligent
peremptory
use of
chal-
(1965),4
Supreme
Court noted that
lenges.
government
Even counsel for the
and their
persistence
peremptories
“the
joined the defense in
requesting
more
long and
extensive use demonstrate the
explicit
publicity.
voir dire on
section
See
chal-
widely
peremptory
held belief that
V, infra, quoting
1531-32.
App.
by jury.”
is a
of trial
lenge
necessary part
The en banc decision seeks to excuse the Although
require
the Constitution does not
judge’s
error by noting that defend-
challenges,
Congress
grant peremptory
ants had access to information
supplied by
Supreme
recognized
has
Court
“
questionnaire,
challenge
important
each venireman on an official
‘one of the most
*22
” Swain,
rights
secured to the accused.’
given thirty peremp-
defendants were
835,
219,
citing,
tory challenges
granted,
could have been
exposed
have been
veniremen
“[w]here
but with no factual basis on which to exer-
prejudicial publicity,
the nature and de-
cise them intelligently,
pro-
this additional
gree
exposure
certainly
of that
a matter
tection would be futile.
legitimate
attorney
concern to a defense
deciding
peremptory challenges.”
...
The en
opinion
banc
also indicates that
Here, the trial judge
trial can relieve the court
responsibil-
of the
effectively
perempto-
needed to
utilize its
ity to observe all of
procedures
which
Johnson, the trial
ries. Under
Swain
the cumulative wisdom of the
has
years
reversible error.
court committed
found so necessary
fair
trial. The
effective use of peremptory challenges has
prejudice
There remains another serious
always been
essential,
considered an
inde-
opinion.
en
Both
not addressed
banc
pendent requirement
Anglo-Saxon juris-
in
defendant Allen
Governor Blanton and
prudence.
change
the court
timely moved
for
See En banc
Op.
3.
majority’s
right
ante.
at
with the
concern for the
investigation
press
report ongoing
criminal
Alabama,
In Swain v.
202, 218,
380 U.S.
trials,
involving
especially
those
affairs of
824, 834,
(1965),
ruling upon this motion until he was able to strenuously objected Counsel to the fact determine whether an could impartial questions exposure no about media selected Nashville. Once the venire, were asked before the first the trial picked, judge denied the motion to group jurors was chosen. stat- Counsel venue, change experi- ostensibly because ed: ence had shown that could jurors raise Secondly, MR. WILLIS: let me only be found Nashville. difficulty The with the Court. And I procedure in this was that the method of think, record, I should move voir effectively precluded counsel both orally Court this time to De- ask the the trial from determining fendant Hood’s number whether were in fact unbiased. through previously submitted The also effectively deprived method our Court, of which pretrial all deal with of any court record by which that decision on the publicity, theory that the informa- could reviewed. developed tion that has been from Jury point at this is inadequate permit V. us to intelligently peremptory exercise a en banc Judge Kennedy’s challenge. concurrence seem to infer that the defend- MCLELLAN, ask, MR. JR.: We would adequate ants’ difficulties in obtaining voir Honor, that you Jury— Your ask the dire were of their making. respect- own have done in you general terms— fully disagree. specifically, but if their has judgment objec- The defendants made their known by reading been affected articles with to the proposed tions manner of voir dire it, name Blanton in fami- members *23 early often. Extensive written re- ly- for quests voir dire relating pretrial pub- to Even App. 1531. counsel for the Govern- Blanton, Hood, were licity by submitted ment a more requested comprehensive voir Allen. Relevant excerpts from those re- subject dire on the of publicity: are quests appended hereto as Attachments A, I to just going say B C. The MS. ARTHUR: was & observation the in concur- join that we would in Mr. rence that the Willis’ motion defendants did not ask for additional voir individualized voir dire as far as dire on impanelling publicity. before about group jurors, my opinion, may may first is in Your Honor not know inaccurate. that took place very at the And end of Mr. Blanton’s term in office. Voir dire commenced on 1981. April pointed I think Mr. Willis We that out. 14, 1981, On April Blanton a “motion filed talking are not just pretrial publici- Right for of Counsel Participate in Voir involving the case. ty The Government Dire Examination.” requested That motion Your more urge Honor to do some permitted “that counsel be participate publicity. voir dire on dire the voir the pres- examination outside jurors.” ence of other App. (emphasis App. object Counsel continued to 1531-32.
added). 20, 1981, On April Hood also procedure group after the first the court to voir each pro- chosen, jurors stating: “move[d] spective juror 615. Al- individually.” App. Honor, Your I don’t MR. WILLIS: len for moved voir dire of individualized welcome out Your my want to wear jurors those who opinion.5 stated an I compelled again Honor. But feel once en opinion The banc question and the concurrence of a more specific raise do consider jurors not that a into in-depth inquiry broader what these Concerning April 5. See Motion in the Voir Dire or docketed 1981. Severance, Change Alternative of Venue or true, on attorneys involved. It is judge And in read and heard. seen and hand, context, may Honor the deci- best I cite Your one that counsel in the United motives
sion the Sixth Circuit and uncover hidden probe able to 472 Fed.2d Dellinger, juror. States versus of a may objectivity affect probably already Honor is which Your hand, remains always On the other there that we with. We believe well familiar of voir the conduct real risk that very more an than inquiry need to have publi- a counsel, highly especially dire by challenge what reveals basis trial, to harassment lead more may cized to have that we need cause. We believe Most observers enlightenment. than to we in-depth inquiry so that sufficient believe, a trial would, I admit that in such peremptory exercise our may intelligently close particularly must exercise judge challenges. panel The potential abuse. control avoid App. 1574. also 1565. Defend- App. See spell exactly opinion sought out never rights to ants no means waived their exercise that con- judge how the trial must voir dire. challenge adequacy trol, however: in John- agree implication with the [W]e VI. should some provide that the voir dire son stating has Supreme In Court parties can use so the surface information per not regarding jury established a se rule an intelli- challenges in peremptory their dire, opinion implies voir the en banc gent purposeful manner. has so. original panel respectful- done case, where there was In the instant ly suggest Judge careful reader of pretrial publici- Gibson’s will search vain for substantial, even massive fact, expression se rule. per of a have been exten- the voir dire should ty, emphasized judge’s Gibson the trial broad to learn enough to allow defendants sive discretion. 700 F.2d at See exposed to which veniremen were most expo- what sources that publicity, from invariable panel opinion contains no opinions. That came, and who held sure or individ- compel private mandate to either helped defend- would have information adopt or to interrogation ualized use their suspected biases and standards,” ants detect salutary “ABA however help- accordingly, panel opin- challenges be.6 Neither does the peremptory compel yield ion the trial the voir The de- jury. ing to insure *24 it, dire, any of the part attorneys. to trial which would had no information fendants either suspect cause them to biases many are of han- probably ways There as disqualifica- strong enough not for were and dling judges voir dire as there are trial enough or were not evident tion for cause original not at- attorneys. panel The did disqualification to believe for the court I, and for tempt legislate any one rule of informa- The lack such was in order. to, one, attempt given not the would perempto- of the impairment was tion an vary local his- practices chance. Local with would of itself right, and that, ry challenge Beyond and mores. individual tory require reversal. vary particular circumstances with the question- recording provides: possible. The whenever The Standard purpose ing of shall conducted the govern following the selec- The standards juror determining prospective has jury what the a in tion of in those criminal cases which any possible prejudice the case and how are raised. and heard about of read possibility (a) person’s exposure If is a that there substantial attitude has affected jurors ineligible trial, prospec- will be to serve individual not convince the the toward potentially prejudicial exposure because of inability juror to cast aside that an tive material, juror the examination of each with preconceptions be a dereliction exposure respect place shall take outside duty. presence prospective other chosen and Press, for a Trial Free ABA Standards Fair jurors. examina- An accurate record 1974). (final draft 3.5 section kept by tape reporter or shall be court tion
841 are not several We unmindful discretion have used voir meth finding “jury court’s that the selected is protect rights highly publi ods' a jury as fair and as could be cized defendants such Governor Blanton. and that a trial
obtained”
must
The most obvious method is individualized
late court will not interfere with the
lowed
cretion.
at
1308, 1315(6th Cir.1969),
selection
accorded considerable latitude
petit jury.
651;
range
United States
process
[U.S. v.]
Also we
flexibility
absent
Blount,
note
Owens,
cert.
in original). the Calley trial Lieutenant William on charges following the Lai “My
There are alternatives to the excessive murder mas- upon The Circuit unnecessary imposed limitations sacre.” Fifth described the the their judges questioning: voir dire below. Trial in
842 24 that Rule just It is such reasons the court second reason to credit
The
lati-
such wide
the
courts
grants
district
were
statements
members’
It
to their
leaves
tude in these matters.
searching
sensitivity
product
rea-
forge a
duty
sound discretion
military judge
The
conducted voir dire.
in-
accommodation
between
sonable
voir
conducted the
dire
accordance
obtaining
jury,
unbiased
terests in
an
of the Ameri-
the recommendations
possible.
doing
expeditiously
so as
Project
can Bar Association
on Standards
Dansker,
40, 56
537 F.2d
Justice,
v.
Relating United States
for Criminal
Standards
1038,
denied,
97
Cir.1976),
429 U.S.
(3d
cert.
3.4(a) (Ap-
Trial and Free Press
Fair
(1977).
732,
748
50 L.Ed.2d
S.Ct.
Draft, 1968).
proved
The examination
each court member was held out of the
com
these
striking
a balance between
jurors.
presence
prospective
of other
concerns,
have used sev
judges
trial
peting
him-
is no
Kennedy,
military judge,
voir dire. There
eral methods of
interrogate
potential
self
into the
court
each
inquired
prospective
mandate
Lid
example,
For
when Gordon
privately.
and abili-
exposure
members’
Watergate
in the
dy was tried for
role
ty
render a fair and
verdict.
voir
incident,
accepted
Circuit
D.C.
But more
both
coun-
importantly,
defense
procedure whereby
judge
asked
sel and the
were allowed al-
prosecution
of the entire
general
inquire
most unlimited freedom to
into
had
individually questioned only those who
attitudes, perceptions,
the court members’
case,
or who recalled
backgrounds and the nature and extent
Only
eight jurors
the case.
details of
exposure
pretrial publicity.
of their
exposed to
acknowledged they were
who
184,
Calley
Callaway,
v.
519 F.2d
208-09
individually
questioned.
publicity were
Cir.1975),
denied,
911,
(5th
cert.
96
425 U.S.
428, 436-
Liddy,
v.
509 F.2d
United States
1505,
(1976).
47
S.Ct.
L.Ed.2d 760
See also
denied,
911,
(D.C.Cir.1974), cert.
420
37
U.S.
Ehrlichman,
United
v.
910
States
546 F.2d
833,
(1975).7
42
842
Ac
95 S.Ct.
L.Ed.2d
(D.C.Cir.),
denied,
1120,
429
97
cert.
U.S.
cord,
v.
Most that use of observers would In Ad serving efficiency. the interests of ABA were likely produce donizio, city prose Standards would more several officials their roles in a “kickback” scheme colleagues, error-free cuted for my trials. sense city did not projects. however, a countervailing fear that at best conduct individualized voir dire. panel opinion hog-tie would both *26 judge jury prospec- trial the voir unduly protract and The dire examination jurors to process subject jurors exclusively by selection tive was conducted the per- the Counsel were not judge. embarrassment harassment. requires individualized voir Although voir dire The ABA Standard court found that such supra. Standard, jurors. See note potential dire of all is not. consistent with ABA participate, although they
mitted to sub- to be completed by potential jurors. proposed questions, many process mitted of which This could serve as an way effective jurors to screen by preponder- were asked the court. The and to determine which questioned should be further ance of the voir dire was devoted to de- without ask- ing any questions before the entire venire. termining prospective the extent of each juror’s exposure pretrial publicity conclusion, are many there alterna- exposure upon effect of that his abili- opinion tives. Gibson’s does not em- judge defendants ty impartiality. per brace a se rule. Invariably, any prospective juror who in- he knew something dicated CONCLUSION trial publicity. opinion they had formed any opinion as to the read. Typically the guilt or innocence of the defendants and lines). Prospective jurors were then read entire articles or questioned at Prospective jurors who had formed an impartially despite some exposure whether they which the nature and extent of go into the substance of what he had around the particular case-related stories and whether he had case was the same time (or, [*] in some [*] questioned prospective juror guilt could some [*] instances, being or innocence of length only portions further as to the admonished not to [*] inquiry exposure, newspapers the defendants as to whether merely [*] had centered there- head- while [*] seen pre- En measure of deference due to his exalted notorious observations ensued. The issue here is not whether a famous or head. Under the First United vented the ther the that for the term of office to which he two defendants state government in close proximity to its would be elected to the highest office in Tennessee state The en banc banc Governor Blanton ran for and was limelight elected, government. op. States person defendants nor at 820.8 subject concerning public opinion he would be could is entitled to a greater to comment. The other accepted media comment which every act This fact (or should) makes the following these defendants: Amendment, constantly positions court in the guaranteed and word pre- nei- the defendants were excused sua sponte life; However, station in he is not. by Prospective the court. jurors who had greater degree of care may nonetheless excused, discussed the case were similarly to assure the same necessary fairness regardless of the nature or extent of the ordinarily enjoyed by any citizen. private discussion or their own expression of im- I respectfully suggest my colleagues partiality. The court dismissed on its in the majority may fully appreciate not own prospective juror motion each who impact which their is bound to have indicated exposure extensive to pretrial upon process. selection In a very publicity, regard without protestations sense, real the majority has reverted to a of impartiality. system of which Blackstone reports the (emphasis F.2d at 65-67 in original). English “heartily had become tired” Another Queen alternative was available here. time of Anne. 3 Blackstone’s Com- Blanton questionnaire submitted a written (1822).9 mentaries 360 Jurists from Chief 4, supra, jurors 8. See parties’ neighborhood note for comment on First from the Amendment values. parties “know beforehand characters of the witnesses, and therefore better knew reports law, 9. Blackstone that under “ancient give alleged what credit to to the facts in evi- vicineto, was to come de from the time, Id. Even in Blackstone’s dence.” how- neighbourhood place of the vill or where the ever, apparent prior it was cause of action was laid in the declaration.” knowledge parties often could not set Blackstone’s Commentaries (1822). prejudices: aside their system rationale for this selection was that *27 subscribe? Sunday you 41b. Yes No Marshall, ( ) ( ) ( ) to District Do John Justice only subscription Sirica, struggled the who have John J. it? Once you ( ) read a week ( ) 41c. How often do sur- be pretrial publicity of problem 2-3 ) a week ( a week 4 or more times ( ) times longer law no re- prised to learn that Only special Every day when is ( ) something Sunday only reported ( ) the often tedious pursue courts to quires read? Local/State you What Newspapers 42. do other jur- prospective determining task of which ors may mony ors position pressions testimony, most court alike will be left ed 14,692g) States may testimony which entertain “those notorious fairly entertain (C.C.Va.1807). which will close them, Burr, supposed resist cases, “light offered,” which 25 Fed.Cas. may be offered its force strong to assess Now, impressions which yield the mind will combat parties and which and .... even in the to the testi- deep ” against Unit- (No. jur- bias im- op- 44. 45a. 43. 45b. 47. Please list 46. What your favorite Radio What Out-of-Town What 3.................................... 2..................................... What TV 1.............„....................... How many is are News Programs your what times a week do favorite Magazines Newspapers General TV do you Station?.............. you do watch watch?...... Periodicals you Programs? TV News? read? you read: face upon the basis of silence solely put, questions, generally entirely general 67. Blanton? you No ( heard the name Yes ( ) ) Have regard to the source nature without 68. you the name in connection with Have heard Blanton or to extent pretrial publicity State Government? ( Yes No ) ( ) exposure
individual or reaction it. Such 69. you anything newspapers read in the or heard Have trials, up speed no will procedure doubt Ray anything the radio or television however, in terms of price, it did here. The Blanton? fairness, notions traditional American No ( ) ) Yes{ high. 70. Good too Was you heard: ( ) ( ) what Bad Ray Corrupt? you Blanton is 71. feel that Do Yes No ( ( ) ) A ATTACHMENT Since Ray crime, 72. Blanton has been of a do accused voir requested Blanton’s Defendant you guilty? he is believe that ( No Yes( ) inquir- following } contained questionaire 73. Ray Has the which Blanton has received publicity: relating pretrial ies opin- public notoriety your and the affected resulting Blanton? Governor Ray ion of ( Yes No ( ) ) you 40a. Do Tennessean? read The Nashville ( ) Yes Governor Can you separate Ray ( )No Blanton from other co-defendants Mr. Hood Mr. Allen or from 40b. you subscribe? Sunday Do Yes No ( ) ( ) ( ) you may people were about whom have read who subscription only Governor employed by Blanton his adminis- during 40c. it? Once you How often do read ( ) ( week ) tration? 2-3 times a week 4 or more ( ) times a week ( ) Yes No ( ( ) ) Every day Only special ) when ( something reported Sunday only ( ) ques- 241-42, 243. None the above App. you Banner? 41a. Do read The Nashville Yes ( ) tions was asked. ( )No by system, corpore knowledge] [i.e., prior comitatus favor of the de But convenience body very jurors selected “from the another were was overbalanced natural inconvenience; Thus, large.” have come county and almost unavoidable Id. we jurors, neighb- coming jur- system preferring out of the immediate from a full circle almost ourhood, prej- apt intermix seeking would be their knowledge, system prior to a ors with right. partialities in the trial of udices system present persons, to exclude such of, And this our so sensible law was deter- is barred from defense under which the long relinquish- gradually for a time has been prior mining prospective whether ing practice. knowledge not. George II, reign de 359-60. Id. at In the abolished, system completely vicineto *28 ATTACHMENT B related to the matter currently go- ing to trial? following Defendant Hood submitted the
proposed questions for voir concerning App. 641-42. None of the questions above pretrial publicity: was asked.
40. Have you talked with who anyone ATTACHMENT C any claimed to know of the facts Defendant Allen submitted following
supposedly involved in this case? proposed questions for voir dire concerning you 41. Do read regularly The Tennesse- pretrial publicity: an? you 14. Have received any knowledge you 42. Do regularly read The Nashville or information about the case by way of Banner? radio, newspapers, television, talking 43. Do you regularly read The Columbia with acquaintances, or otherwise? Herald? 15. Have you any knowledge received you 44. Do regularly read The Clarks- or information any other criminal ville Leaf Chronicle? involving officials, case employees, State 45. Do you regularly watch the daily or members of the family any defend- news on Nashville television sta- ant, radio, by way newspapers, televi- tions? sion, talking acquaintances, or oth- 46. Which station do watch with you erwise? greatest frequency? Neither of the above was asked. you 47. Do regularly listen to radio KEITH, Judge, Circuit dissenting. newscasts? I am delighted join Judge Engel’s to 48. you Have read any newspaper arti- excellent, thorough comprehensive cles that referred to Clyde Edward am, opinion. however, compelled to write Hood, Jr.? separately, because as a member of the 49. In what newspaper you did read original case, panel in this I am totally these articles? convinced that we were correct in reaching 50. Did these articles purport give the conclusion that the defendants were you facts that now believe to be trial, denied a fair and impartial guaran- related to the currently matter go- teed them Amendment of the Sixth ing to trial? denial, United States Constitution. This 51. youDo remember any of the details my judgment, was inadequate based on the of these articles? voir dire examination. 52. Have you seen television news- This case is a direct a federal appeal from casts that referred Clyde Edward duty appel- criminal trial. We have a as an Hood, Jr.? late court supervisory authority to exercise 53. Did these newscasts purport give over the conduct of such trials. If this case you details that now believe to be involved habeas review corpus state related to the matter currently go- conviction, only court we could overturn the ing to trial? conviction if the error rose to the level of 54. you Do now remember what those However, constitutional dimensions. in this details were? case, scope our of review is not so limited. you
55. Have heard radio newscasts broad, It is it should be broad. We have an referred to Clyde Edward obligation duty indeed ensure Hood, Jr.? fairly federal criminal trials are conducted. 56. Did Judge these newscasts purport give superb opinion pan- Gibson’s1
details you now believe to be el was faithful duty. Judge formerly Gibson was a U.S. District Judge Eighth and also Chief Cir- cuit. jurors, conscious- my experience, many justice to the amount of fail to do Words subconsciously, tend to believe that pre- ly has this case received — all, indicted, defendant, guilty. case After At issue in this if post-judgment. *29 governor, the would not bother they government of a former the alleged say, conduct to time, and a former campaign manager energy and effort governor’s investing the governor. A there assistant to the federal a unless special person and indict investigate governor byis itself a former was person indictment of reason to good was believe case, item. This extraordinarily newsworthy is an this belief ordinary In the guilty. alleged the fed- true because particularly
is the and argument attorneys of corrected during the eral criminal violations occurred pre- A is judge. from the man instructions Moreover, Leon- governorship. defendant our society, in under innocent our sumed ordinary governor. no Ray ard Blanton was a laws, guilty beyond he is proven until Alexander, successor, Lamar His Governor this, a case such as doubt. In reasonable days of sched- sworn in several ahead was of however, beat there has been drum ule, Blanton allegedly prevent to Governor years prior for two publicity intensive the pardoning commuting from or sen- Indeed, trial. the continues. of state The prisoners.
tences numerous circumstances, at a extraordinary These alleged of the Blanton adminis- corruption minimum, careful, required even individual subject tration has been and will be the of liter- jurors. of No questioning prospective research, books, articles and historical and matter, Nashville, or for that ate in resident perhaps movie. Tennessee, fail could in the entire State of an former impression at least have the of We no control over verdict Therefore, the only Blanton. Governor the public opinion history. verdict careful, indeed, questioning most individual case, however, something This concerns of an could ensure the selection that is fundamental —a important more jury. man’s and his to a fair trial. liberty right justice, our system everyone, Under in- a trial has judge In the federal system, cluding allegedly ex-governor, an is corrupt authority voir dire. A federal broad over trial fair entitled a fair before a him- trial can either conduct voir dire judge peers of his more no impartial jury —no self, the attorneys question the or allow dire, less. The record in this case as to voir the can both jurors, they or in alternative contains none assurances which In the conducting share the voir dire. guarantee that the jury was fair and conduct practice, judges most federal trial impartial. judge The trial did not ask the rare that attor- voir dire themselves. It is prospective jury panel they what had heard jurors. neys permitted question are case, about the or the defendants source systems This in contrast to some state of such judge information. The did not ask voir routinely conduct the attorneys where the venireman whether had formed an they jury. probe about the case nor did he case, judge the trial followed this opinion. nature and extent of that voir dire custom —he conducted the federal judge asked simply prospective jur- trial Judge exercised entirely himself. The put could any opin- ors whether aside attorneys permit and did not discretion have, prejudice they ion or decide Because jury panel. the case on the evidence before them. This duty conducting assumed the inadequate considering was woefully dire, important particularly voir it was (1) the case allegedly concerned: notori- probe possible source carefully he (2) ous former a trial which was governor; majority distressing It is bias. capital subject located the state and the the bare-bones has approved en banc court (3) of massive coverage; alleged media highly publi- occurred in questions that ex-gover- offenses that occurred while the nor cized office. case. distressing majori-
I find particularly concerning statement ty’s publicity. This CORP., KEELER d/b/a Keeler Brass statement intimates that the defendants Co., Petitioner-Appellant, created some of the publicity by running public associating office or with a man NATIONAL LABOR RELATIONS high public office. The majority sug- BOARD, Respondent-Appellee. gests that the defendants deserved what 82-1565, they got, way, justified that this in some Nos. 82-1694. inadequate voir dire. a suggestion Such Appeals, United States Court of indeed, majority incredible. Does the Sixth Circuit. actually believe that a man stands before *30 3, Oct. justice
the bar of light in a lesser because he was an public elected official? The rea- why
son a case is highly publicized should
be irrelevant. What steps matters are the
taken ensure a defendant a fair has regardless of the source of reasons
trial — for publicity. Whether a man ran for high
public office should have no effect on his rights
basic constitutional or on this Court’s
review of his conviction. am,
I frankly, explain at a loss to why the
en approved banc court has this voir dire.
There are no cases on point approve
questioning so limited as what permit-
ted in this case. The majority opinion es-
tablishes an dangerous unwise and prece-
dent which tampers with rights. basic
More importantly, we have way no
knowing, based on the record of the voir this case whether the defendant’s
convictions may well have been influenced procured by place not what took at trial during trial, the course of the but
outside influences. We should not tolerate shotgun
such a and cavalier result. The
defendants are entitled to a new trial.
respectfully dissent from the in- majority’s
sistence on not giving them that new trial.