Subject:  MU'MIN v. VIRGINIA, Syllabus



 
    NOTE: Where it is feasible, a syllabus (headnote) will be released, as
is being done in connection with this case, at the time the opinion is
issued.  The syllabus constitutes no part of the opinion of the Court but
has been prepared by the Reporter of Decisions for the convenience of the
reader.  See United States v. Detroit Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES


Syllabus



MU'MIN v. VIRGINIA


certiorari to the supreme court of virginia

No. 90-5193.  Argued February 20, 1991 -- Decided May 30, 1991

Petitioner Mu'Min, a Virginia inmate serving time for first-degree murder,
committed another murder while out of prison on work detail.  The case
engendered substantial publicity in the local news media.  The trial judge
denied his motion for individual voir dire and refused to ask any of his
proposed questions relating to the content of news items that potential
jurors might have seen or read.  Initially, the judge questioned the
prospective jurors as a group, asking four separate questions about the
effect on them of pretrial publicity or information about the case obtained
by other means.  One juror who admitted to having formed a belief as to
Mu'Min's guilt was excused for cause.  The judge then conducted further
voir dire in panels of four, and each time a juror indicated that he had
acquired knowledge about the case from outside sources, he was asked
whether he had formed an opinion.  One juror who equivocated as to her
impartiality was excused by the judge sua sponte, and several others were
excused for various reasons.  Although 8 of the 12 eventually sworn
admitted that they had read or heard something about the case, none
indicated that they had formed an opinion based on the outside information
or would be biased in any way.  The jury found Mu'Min guilty of
first-degree murder, and the judge sentenced him to death.  The Supreme
Court of Virginia affirmed, finding that, while a criminal defendant may
properly ask on voir dire whether a juror has previously acquired any
information about the case, the defendant does not have a constitutional
right to explore the content of the acquired information, but is only
entitled to know whether the juror can remain impartial in light of the
previously obtained information.

Held: The trial judge's refusal to question prospective jurors about the
specific contents of the news reports to which they had been exposed did
not violate Mu'Min's Sixth Amendment right to an impartial jury or his
right to due process under the Fourteenth Amendment.  Pp. 6-15.

    (a) This Court's cases have stressed the wide discretion granted to
trial courts in conducting voir dire in the area of pretrial publicity and
in other areas that might tend to show juror bias.  For example, in holding
that a trial court's voir dire questioning must "cover the subject" of
possible juror racial bias, Aldridge v. United States, 283 U. S. 308, 311,
the Court was careful not to specify the particulars by which this could be
done.  Pp. 6-8.

    (b) Mu'Min's assertion that voir dire must do more than merely "cover
the subject" of pretrial publicity is not persuasive.  Although precise
inquiries about the contents of any news reports that a potential juror has
read might reveal a sense of the juror's general outlook on life that would
be of some use in exercising peremptory challenges, this benefit cannot be
a basis for making "content" questions about pretrial publicity a
constitutional requirement, since peremptory challenges are not required by
the Constitution.  Ross v. Oklahoma, 487 U. S. 81, 88.  Moreover, although
content questions might be helpful in assessing whether a juror is
impartial, such questions are constitutionally compelled only if the trial
court's failure to ask them renders the defendant's trial fundamentally
unfair.  See Murphy v. Florida, 421 U. S. 794, 799.  Furthermore, contrary
to the situation in Aldridge, supra, at 311-313, there is no judicial
consensus, or even weight of authority, favoring Mu'Min's position.  Even
the Federal Courts of Appeals that have required content inquiries have not
expressly done so on constitutional grounds.  Pp. 8-11.

    (c) Mu'Min misplaces his reliance on Irvin v. Dowd, 366 U. S. 717, in
which the Court held that pretrial publicity in connection with a capital
trial had so tainted the particular jury pool that the defendant was
entitled as a matter of federal constitutional law to a change of venue.
That case did not deal with any constitutional requirement of voir dire
inquiry, and it is not clear from the Court's opinion how extensive an
inquiry the trial court made.  Moreover, the pretrial publicity here,
although substantial, was not nearly as damaging or extensive as that found
to exist in Irvin.  While adverse pretrial publicity can create such a
presumption of prejudice that the jurors' claims that they can be impartial
should not be believed, Patton v. Yount, 467 U. S. 1025, 1031, this is not
such a case.  Pp. 11-13.

    (d) Mu'Min also misplaces his reliance on the American Bar
Association's Standards For Criminal Justice, which require interrogation
of each juror individually with respect to "what [he] has read and heard
about the case," "[i]f there is a substantial possibility that [he] will be
ineligible to serve because of exposure to potentially prejudicial
material."  These standards leave to the trial court the initial
determination of whether there is such a substantial possibility; are based
on a substantive for-cause eligibility standard that is stricter than the
impartiality standard required by the Constitution, see Patton, supra, at
1035; and have not commended themselves to a majority of the courts that
have considered the question.  Pp. 13-14.

    (e) The two-part voir dire examination conducted by the trial court in
this case was by no means perfunctory and adequately covered the subject of
possible bias by pretrial publicity.  Pp. 14-15.

239 Va. 433, 389 S. E. 2d 886, affirmed.

Rehnquist, C. J., delivered the opinion of the Court, in which White,
O'Connor, Scalia, and Souter, JJ., joined.  O'Connor, J., filed a
concurring opinion.  Marshall, J., filed a dissenting opinion, in all but
Part IV of which Blackmun and Stevens, JJ., joined.  Kennedy, J., filed a
dissenting opinion.

------------------------------------------------------------------------------




Subject: 90-5193 -- OPINION, MU'MIN v. VIRGINIA

 


NOTICE: This opinion is subject to formal revision before publication in
the preliminary print of the United States Reports.  Readers are requested
to notify the Reporter of Decisions, Supreme Court of the United States,
Washington, D. C. 20543, of any typographical or other formal errors, in
order that corrections may be made before the preliminary print goes to
press.
SUPREME COURT OF THE UNITED STATES


No. 90-5193




DAWUD MAJID MU'MIN, PETITIONER v. VIRGINIA

on writ of certiorari to the supreme court of virginia

[May 30, 1991]



    Chief Justice Rehnquist delivered the opinion of the Court.
    Petitioner Dawud Majid Mu'Min was convicted of murdering a woman in
Prince William County, Virginia, while out of prison on work detail, and
was sentenced to death.  The case engendered substantial publicity, and 8
of the 12 venireper sons eventually sworn as jurors answered on voir dire
that they had read or heard something about the case.  None of those who
had read or heard something indicated that they had formed an opinion based
on the outside information, or that it would affect their ability to
determine petitioner's guilt or innocence based solely on the evidence
presented at trial.  Petitioner contends, however, that his Sixth Amendment
right to an impartial jury and his right to due process under the
Fourteenth Amendment were violated because the trial judge refused to
question further prospective jurors about the specific contents of the news
reports to which they had been exposed.  We reject petitioner's
submission.
    Mu'Min was an inmate at the Virginia Department of Corrections'
Haymarket Correctional Unit serving a 48-year sentence for a 1973
first-degree murder conviction.  On September 22, 1988, he was transferred
to the Virginia Department of Transportation (VDOT) Headquarters in Prince
William County and assigned to a work detail supervised by a VDOT employee.
During his lunch break, he escaped over a perimeter fence at the VDOT
facility and made his way to a nearby shopping center.  Using a sharp
instrument that he had fashioned at the VDOT shop, Mu'Min murdered and
robbed Gladys Nopwasky, the owner of a retail carpet and flooring store.
Mu'Min then returned to his prison work crew at the VDOT, discarding his
bloodied shirt and the murder weapon near the highway.
    About three months before trial, petitioner submitted to the trial
court, in support of a motion for a change of venue, 47 newspaper articles
relating to the murder. {1}  One or more of the articles discussed details
of the murder and investigation, and included information about
petitioner's prior criminal record (App. 963-969), the fact that he had
been rejected for parole six times (id., at 923, 942), accounts of alleged
prison infractions (id., at 921, 931, 942), details about the prior murder
for which Mu'Min was serving his sentence at the time of this murder (id.,
at 948, 951), a comment that the death penalty had not been available when
Mu'Min was convicted for this earlier murder (id., at 948), and indications
that Mu'Min had confessed to killing Gladys Nopwasky (id., at 975).
Several articles focused on the alleged laxity in the supervision of work
gangs (id., at 922-924, 930-931), and argued for reform of the prison
work-crew system (id., at 974).  The trial judge deferred ruling on the
venue motion until after making an attempt to seat a jury (Joint Appendix
8-15 (J. A.)).
    Shortly before the date set for trial, petitioner submitted to the
trial judge 64 proposed voir dire questions {2} (id., at 2-7) and filed a
motion for individual voir dire.  The trial court denied the motion for
individual voir dire; it ruled that voir dire would begin with collective
questioning of the venire, but the venire would be broken down into panels
of four, if necessary, to deal with issues of publicity (id., at 16-17).
The trial court also refused to ask any of petitioner's proposed questions
relating to the content of news items that potential jurors might have read
or seen.
    Twenty-six prospective jurors were summoned into the courtroom and
questioned as a group (id., at 42-66).  When asked by the judge whether
anyone had acquired any information about the alleged offense or the
accused from the news media or from any other source, 16 of the potential
jurors replied that they had (id., at 46-47).  The prospective jurors were
not asked about the source or content of prior knowledge, but the court
then asked the following questions:
    "Would the information that you heard, received, or read from whatever
source, would that information affect your impartiality in this case?
    "Is there anyone that would say what you've read, seen, heard, or
whatever information you may have acquired from whatever the source would
affect your impartiality so that you could not be impartial?


    "Considering what the ladies and gentlemen who have answered in the
affirmative have heard or read about this case, do you believe that you can
enter the Jury box with an open mind and wait until the entire case is
presented before reaching a fixed opinion or conclusion as to the guilt or
innocence of the accused?


    ". . . In view of everything that you've seen, heard, or read, or any
information from whatever source that you've acquired about this case, is
there anyone who believes that you could not become a Juror, enter the Jury
box with an open mind and wait until the entire case is presented before
reaching a fixed opinion or a conclusion as to the guilt or innocence of
the accused?"  (Id., at 47-48.)


One of the 16 panel members who admitted to having prior knowledge of the
case answered in response to these questions that he could not be
impartial, and was dismissed for cause (id., at 48-49).  Petitioner moved
that all potential jurors who indicated that they had been exposed to
pretrial publicity be excused for cause (id., at 68).  This motion was
denied (id., at 69), as was petitioner's renewed motion for a change of
venue based on the pretrial publicity (id., at 71).   The trial court then
conducted further voir dire of the prospective jurors in panels of four
(id., at 72-94).  Whenever a potential juror indicated that he had read or
heard something about the case, the juror was then asked whether he had
formed an opinion, and whether he could nonetheless be impartial.  None of
those eventually seated stated that he had formed an opinion, or gave any
indication that he was biased or prejudiced against the defendant.  All
swore that they could enter the jury box with an open mind and wait until
the entire case was presented before reaching a conclusion as to guilt or
innocence.
    If any juror indicated that he had discussed the case with anyone, the
court asked follow-up questions to determine with whom the discussion took
place, and whether the juror could have an open mind despite the
discussion.  One juror who equivocated as to whether she could enter the
jury box with an open mind was removed sua sponte by the trial judge (id.,
at 90).  One juror was dismissed for cause because she was not "as frank as
she could [be]" concerning the effect of her feelings toward members of the
Islamic Faith and toward defense counsel (id., at 81).  One juror was
dismissed because of her inability to impose the death penalty (id., at
86-87), while another was removed based upon his statement that upon a
finding of first-degree murder, he could not consider a penalty less than
death (App. 339-341).  The prosecution and the defense each peremptorily
challenged 6 potential jurors, and the remaining 14 were seated and sworn
as jurors (two as alternates).  Petitioner did not renew his motion for
change of venue or make any other objection to the composition of the jury.
Of the 12 jurors who decided petitioner's case, 8 had at one time or
another read or heard something about the case.  None had indicated that he
had formed an opinion about the case or would be biased in any way.
    The jury found petitioner guilty of first-degree murder and recommended
that he be sentenced to death.  After taking the matter under advisement
and reviewing a presentence report, the trial judge accepted the jury's
recommendation and sentenced Mu'Min to death.  Mu'Min appealed, contending
that he was entitled to a new trial as a result of the judge's failure to
permit the proposed voir dire questions.  By a divided vote, the Supreme
Court of Virginia affirmed his conviction and sentence, finding that, while
a criminal defendant may properly ask on voir dire whether a juror has
previously acquired any information about the case, the defendant does not
have a constitutional right to explore the content of the acquired
information.  Rather, an accused is only entitled to know whether the juror
can remain impartial in light of the previously obtained information.  239
Va. 433, 443, 389 S. E. 2d 886, 893 (1990).  We granted certiorari, 498 U.
S. --- (1990), and now affirm.
    Our cases dealing with the requirements of voir dire are of two kinds:
those that were tried in federal courts, and are therefore subject to this
Court's supervisory power, see Rosales-Lopez v. United States, 451 U. S.
182 (1981); Aldridge v. United States, 283 U. S. 308 (1931); and Connors v.
United States, 158 U. S. 408 (1895); and those that were tried in state
courts, with respect to which our authority is limited to enforcing the
commands of the United States Constitution.  See Turner v. Murray, 476 U.
S. 28 (1986); Ristaino v. Ross, 424 U. S. 589 (1976); and Ham v. South
Carolina, 409 U. S. 524 (1973).
    A brief review of these cases is instructive.  In Connors, we said:
"[A] suitable inquiry is permissible in order to ascertain whether the
juror has any bias, opinion, or prejudice that would affect or control the
fair determination by him of the issues to be tried.  That inquiry is
conducted under the supervision of the court, and a great deal must, of
necessity, be left to its sound discretion.  This is the rule in civil
cases, and the same rule must be applied in criminal cases."  158 U. S., at
413.


    In Aldridge v. United States, 283 U. S. 308 (1931), counsel for a black
defendant sought to have the Court put a question to the jury as to whether
any of them might be prejudiced against the defendant because of his race.
We held that it was reversible error for the Court not to have put such a
question, saying "[t]he Court failed to ask any question which could be
deemed to cover the subject."  Id., at 311.  More recently, in
Rosales-Lopez v. United States, supra, we held that such an inquiry as to
racial or ethnic prejudice need not be made in every case, but only where
the defendant was accused of a violent crime and the defendant and the
victim were members of different racial or ethnic groups.  We said:
    "Because the obligation to empanel an impartial jury lies in the first
instance with the trial judge, and because he must rely largely on his
immediate perceptions, federal judges have been accorded ample discretion
in determining how best to conduct the voir dire."  Id., at 189.


    Three of our cases dealing with the extent of voir dire examination
have dealt with trials in state courts.  The first of these was Ham v.
South Carolina, supra.  In that case, the defendant was black and had been
active in the civil rights movement in South Carolina; his defense at trial
was that enforcement officers were "out to get him" because of his civil
rights activities, and that he had been framed on the charge of marijuana
possession of which he was accused.  He requested that two questions be
asked regarding racial prejudice and one question be asked regarding
prejudice against persons, such as himself, who wore beards.  We held that
the Due Process Clause of the Fourteenth Amendment required the court to
ask "either of the brief, general questions urged by the petitioner" with
respect to race, id., at 527, but rejected his claim that an inquiry as to
prejudice against persons with beards be made, "[g]iven the traditionally
broad discretion accorded to the trial judge in conducting voir dire . . .
."  Id., at 528.
    In Ristaino v. Ross, supra, we held that the Constitution does not
require a state court trial judge to question prospective jurors as to
racial prejudice in every case where the races of the defendant and the
victim differ, but in Turner v. Murray, supra, we held that in a capital
case involving a charge of murder of a white person by a black defendant
such questions must be asked.
    We enjoy more latitude in setting standards for voir dire in federal
courts under our supervisory power than we have in interpreting the
provisions of the Fourteenth Amendment with respect to voir dire in state
courts.  But, two parallel themes emerge from both sets of cases: first,
the possibility of racial prejudice against a black defendant charged with
a violent crime against a white person is sufficiently real that the
Fourteenth Amendment requires that inquiry be made into racial prejudice;
second, the trial court retains great latitude in deciding what questions
should be asked on voir dire.  As we said in Rosales-Lopez, supra:
    "Despite its importance, the adequacy of voir dire is not easily
subject to appellate review.  The trial judge's function at this point in
the trial is not unlike that of the jurors later on in the trial.  Both
must reach conclusions as to impartiality and credibility by relying on
their own evaluations of demeanor evidence and of responses to questions."
Id., at 188.


    Petitioner asserts that the Fourteenth Amendment requires more in the
way of voir dire with respect to pretrial publicity than our cases have
held that it does with respect to racial or ethnic prejudice.  Not only
must the Court "cover the subject," Aldridge, supra, at 311, but it must
make precise inquiries about the contents of any news reports that
potential jurors have read.  Petitioner argues that these "content"
questions would materially assist in obtaining a jury less likely to be
tainted by pretrial publicity than one selected without such questions.
There is a certain common sense appeal to this argument.
    Undoubtedly, if counsel were allowed to see individual jurors answer
questions about exactly what they had read, a better sense of the juror's
general outlook on life might be revealed, and such a revelation would be
of some use in exercising peremptory challenges.  But, since peremptory
challenges are not required by the Constitution, Ross v. Oklahoma, 487 U.
S. 81, 88 (1988), this benefit cannot be a basis for making "content"
questions about pretrial publicity a constitutional requirement.  Such
questions might also have some effect in causing jurors to re-evaluate
their own answers as to whether they had formed any opinion about the case,
but this is necessarily speculative.
    Acceptance of petitioner's claim would require that each potential
juror be interrogated individually; even were the interrogation conducted
in panels of four jurors, as the trial court did here, descriptions of one
juror about pretrial publicity would obviously be communicated to the three
other members of the panel being interrogated, with the prospect that more
harm than good would be done by the interrogation.  Petitioner says that
the questioning can be accomplished by juror questionnaires submitted in
advance at trial, but such written answers would not give counsel or the
court any exposure to the demeanor of the juror in the course of answering
the content questions.  The trial court in this

case expressed reservations about interrogating jurors

individually because it might make the jurors feel that they themselves
were on trial.  While concern for the feelings and sensibilities of
potential jurors cannot be allowed to defeat inquiry necessary to protect a
constitutional right, we do not believe that "content" questions are
constitutionally required.
    Whether a trial court decides to put questions about the content of
publicity to a potential juror or not, it must make the same decision at
the end of the questioning: is this juror to be believed when he says he
has not formed an opinion about the case?  Questions about the content of
the publicity to which jurors have been exposed might be helpful in
assessing whether a juror is impartial.  To be constitutionally compelled,
however, it is not enough that such questions might be helpful.  Rather,
the trial court's failure to ask these questions must render the
defendant's trial fundamentally unfair.  See Murphy v. Florida, 421 U. S.
794, 799 (1975).
    Aldridge was this Court's seminal case requiring inquiry as to racial
prejudice, and the opinion makes clear that in reaching that result we
relied heavily on a unanimous body of state court precedents holding that
such an inquiry should be made.  283 U. S., at 311-313.  On the subject of
pretrial publicity, however, there is no similar consensus, or even weight
of authority, favoring petitioner's position.  Among the state court
decisions cited to us by the parties, not only Virginia, but South
Carolina, State v. Lucas, 285 S. C. 37, 39-40, 328 S. E. 2d 63, 64-65,
cert. denied, 472 U. S. 1012 (1985), Massachusetts, Commonwealth v. Burden,
15 Mass. App. 666, 674, 448 N. E. 2d 387, 393 (1983), and Pennsylvania,
Commonwealth v. Dolhancryk, 273 Pa. Super. 217, 222, 417 A. 2d 246, 248
(1979), have refused to adopt such a rule.  The Courts of Appeals for the
Fifth Circuit, United States v. Davis, 583 F. 2d 190, 196 (1978), the
Seventh Circuit, United States v. Dellinger, 472 F. 2d 340, 375-376 (1972),
cert. denied, 410 U. S. 970 (1973), and the Ninth Circuit, Silverthorn v.
United States, 400 F. 2d 627, 639 (1968), {3} have held that in some
circumstances such an inquiry is required.  The Court of Appeals for the
Eleventh Circuit has held that it is not.  United States v. Montgomery, 772
F. 2d 733, 735-736 (1985).  The Courts of Appeals for the Eight and
District of Columbia Circuits appear to take an intermediate position.
United States v. Poludniak, 657 F. 2d 948, 956 (CA8 1981), cert. denied sub
nom. Weigand v. United States, 455 U. S. 940 (1982); United States v.
Haldeman, 181 U. S. App. D. C. 254, 288-289, 559 F. 2d 31, 65-66 (1976),
cert. denied sub nom. Ehrlichman v. United States, 431 U. S. 933 (1977).
Even those Federal Courts of Appeals that have required such an inquiry to
be made have not expressly placed their decision on constitutional
grounds.
    As noted above, our own cases have stressed the wide discretion granted
to the trial court in conducting voir dire in the area of pretrial
publicity and in other areas of inquiry that might tend to show juror bias.
Particularly with respect to pretrial publicity, we think this primary
reliance on the judgment of the trial court makes good sense.  The judge of
that court sits in the locale where the publicity is said to have had its
effect, and brings to his evaluation of any such claim his own perception
of the depth and extent of news stories that might influence a juror.  The
trial court, of course, does not impute his own perceptions to the jurors
who are being examined, but these perceptions should be of assistance to it
in deciding how detailed an inquiry to make of the members of the jury
venire.
    Petitioner relies heavily on our opinion in Irvin v. Dowd, 366 U. S.
717 (1961), to support his position.  In that case, we held that pretrial
publicity in connection with a capital trial had so tainted the jury pool
in Gibson County, Indiana, that the defendant was entitled as a matter of
federal constitutional law to a change of venue to another county.  Our
opinion in that case details at great length the extraordinary publicity
that attended the defendant's prosecution and conviction for murder.
"[A] barrage of newspaper headlines, articles, cartoons and pictures was
unleashed against [the defendant] during the six or seven months preceding
his trial. . . . [T]he newspapers in which the stories appeared were
delivered regularly to approximately 95% of the dwellings in Gibson County
and . . . the Evansville radio and TV stations, which likewise blanketed
that county, also carried extensive newscasts covering the same incidents."
Id., at 725.


Two-thirds of the jurors actually seated had formed an opinion that the
defendant was guilty, and acknowledged familiarity with material facts and
circumstances of the case.  Id., at 728.  Although each of these jurors
said that he could be impartial, we concluded:
"With his life at stake, it is not requiring too much that petitioner be
tried in an atmosphere undisturbed by so huge a wave of public passion and
by a jury other than one in which two-thirds of the members admit, before
hearing any testimony, to possessing a belief in his guilt."  Ibid.


    We believe that this case is instructive, but not in the way petitioner
employs it.  It did not deal with any constitutional requirement of voir
dire inquiry, and it is not clear from our opinion how extensive an inquiry
the trial court made.  But the contrast between that case and the present
one is marked.  In Irvin, the trial court excused over half of a panel of
430 persons because their opinions of the defendant's guilt were so fixed
that they could not be impartial, and 8 of the 12 jurors who sat had formed
an opinion as to guilt.  In the present case, 8 of the 12 jurors who sat
answered that they had read or heard something about the case, but none of
those 8 indicated that he had formed an opinion as to guilt, or that the
information would affect his ability to judge petitioner solely on the
basis of the evidence presented at trial.
    A trial court's findings of juror impartiality may "be overturned only
for `manifest error.' "  Patton v. Yount, 467 U. S. 1025, 1031 (1984)
(quoting Irvin v. Dowd, supra, at 723).  In Patton, we acknowledged that
"adverse pretrial publicity can create such a presumption of prejudice in a
community that the jurors' claims that they can be impartial should not be
believed,"  467 U. S., at 1031, but this is not such a case.  Had the trial
court in this case been confronted with the "wave of public passion"
engendered by pretrial publicity that occurred in connection with Irvin's
trial, the Due Process Clause of the Fourteenth Amendment might well have
required more extensive examination of potential jurors than it undertook
here.  But the showings are not comparable; the cases differ both in the
kind of community in which the coverage took place and in extent of media
coverage.  Unlike the community involved in Irvin, the county in which
petitioner was tried, Prince William, had a population in 1988 of 182,537,
and this was one of nine murders committed in the county that year.  It is
a part of the metropolitan Washington statistical area, which has a
population of over 3 million, and in which, unfortunately, hundreds of
murders are committed each year.  In Irvin, news accounts included details
of the defendant's confessions to 24 burglaries and six murders, including
the one for which he was tried, as well as his unaccepted offer to plead
guilty in order to avoid the death sentence.  They contained numerous
opinions as to his guilt, as well as opinions about the appropriate
punishment.  While news reports about Mu'Min were not favorable, they did
not contain the same sort of damaging information.  Much of the pretrial
publicity was aimed at the Department of Corrections and the criminal
justice system in general, criticizing the furlough and work release
programs that made this and other crimes possible.  Any killing that
ultimately results in a charge of capital murder will engender considerable
media coverage, and this one may have engendered more than most because of
its occurrence during the 1988 Presidential campaign, when a similar crime
committed by a Massachusetts inmate became a subject of national debate.
But, while the pretrial publicity in this case appears to have been
substantial, it was not of the same kind or extent as that found to exist
in Irvin.
    Petitioner also relies on the Standards for Criminal Justice 8-3.5 (2d
ed. 1980), promulgated by the American Bar Association.  These standards
require interrogation of each juror individually with respect to "what the
prospective juror has read and heard about the case," "[i]f there is a
substantial possibility that individual jurors will be ineligible to serve
because of exposure to potentially prejudicial material."  These standards,
of course, leave to the trial court the initial determination of whether
there is such a substantial possibility.  But, more importantly, the
standards relating to voir dire are based on a substantive rule that
renders a potential juror subject to challenge for cause, without regard to
his state of mind, if he has been exposed to and remembers "highly
significant information" or "other incriminating matters that may be
inadmissible in evidence."  That is a stricter standard of juror
eligibility than that which we have held the Constitution to require.
Under the ABA standard, answers to questions about content, without more,
could disqualify the juror from sitting.  Under the constitutional
standard, on the other hand, "[t]he relevant question is not whether the
community remembered the case, but whether the jurors . . . had such fixed
opinions that they could not judge impartially the guilt of the defendant."
Patton, supra, at 1035.  Under this constitutional standard, answers to
questions about content alone, which reveal that a juror remembered facts
about the case, would not be sufficient to disqualify a juror.  "It is not
required . . . that the jurors be totally ignorant of the facts and issues
involved."  Irvin, 366 U. S., at 722.
    The ABA standards as indicated in our previous discussion of state and
federal court decisions, have not commended themselves to a majority of the
courts that have considered the question.  The fact that a particular rule
may be thought to be the "better" view does not mean that it is
incorporated into the Fourteenth Amendment.  Cupp v. Naughten, 414 U. S.
141 (1973).
    The voir dire examination conducted by the trial court in this case was
by no means perfunctory.  The court asked the entire venire of jurors four
separate questions about the effect on them of pretrial publicity or
information about the case obtained by other means.  One juror admitted to
having formed a belief as to petitioner's guilt, and was excused for cause.
The trial court then conducted further voir dire in panels of four, and
each time an individual juror indicated that he had acquired knowledge
about the case from outside sources, he was asked whether he had formed an
opinion; none of the jurors seated indicated that he had formed an opinion.
One juror who equivocated as to her impartiality was excused by the trial
court on its own motion.  Several other jurors were excused for other
reasons.  It is quite possible that if voir dire interrogation had revealed
one or more jurors who had formed an opinion about the case, the trial
court might have decided to question succeeding jurors more extensively.
    Voir dire examination serves the dual purposes of enabling the court to
select an impartial jury and assisting counsel in exercising peremptory
challenges.  In Aldridge and Ham we held that the subject of possible
racial bias must be "covered" by the questioning of the trial court in the
course of its examination of potential jurors, but we were careful not to
specify the particulars by which this could be done.  We did not, for
instance, require questioning of individual jurors about facts or
experiences that might have led to racial bias.  Petitioner in this case
insists, as a matter of constitutional right, not only that the subject of
possible bias from pretrial publicity be covered -- which it was -- but
that questions specifically dealing with the content of what each juror has
read be asked.  For the reasons previously stated, we hold that the Due
Process Clause of the Fourteenth Amendment does not reach this far,and that
the voir dire examination conducted by the trial court in this case was
consistent with that provision.  The judgment of the Supreme Court of
Virginia is accordingly
Affirmed.


 
 
 
 
 

------------------------------------------------------------------------------
1
    The articles had been published between September 26, 1988, and January
14, 1989.  More than half of them appeared in the Potomac News, a daily
paper with circulation of only 25,000, and the remainder were printed in
the Washington Post and several other local newspapers.  See App. in No.
890899 (Sup. Ct. Va.) 921-975 (App.).

2
    The court approved 24 of the proposed questions, but did not allow the
following questions regarding the content of what jurors had read or heard
about the case (J. A. 17-41):

    "32. What have you seen, read or heard about this case?
    "33. From whom or what did you get this information?
    "34. When and where did you get this information?"
    "38. What did you discuss?"
    "41. Has anyone expressed any opinion about this case to you?
    "42. Who?  What?  When?  Where?"

    The trial court did ask several of the requested questions concerning
prior knowledge of the case:

    "31. Have you acquired any information about this case from the
newspapers, television, conversations, or any other source?"
    "35. Have you discussed this case with anyone?
    "36. With whom?
    "37. When and where?"

3
    In Silverthorn, the Court of Appeals for the Ninth Circuit held that
jurors should be interrogated as to the contents of the news reports which
they had read.  But in the later case of United States v. Polizzi, 500 F.
2d 856 (1974), cert. denied sub nom. Emprise Corp. v. United States, 419 U.
S. 1120 (1975), that court held that the pretrial publicity in that case
had not been substantial enough to require extended interrogation.  It
pointed out that in Silverthorn, supra, there had been over 300 articles
about the defendant, there had been radio and television coverage, and he
had testified before the Senate Committee on Government Operations; out of
a panel of 65 potential jurors, all had been exposed to some publicity, and
19 had been excused because they had formed an opinion.  And in United
States v. Giese, 597 F. 2d 1170 (CA9), cert. denied, 444 U. S. 979 (1979),
that court again distinguished Silverthorn, commenting that a trial court's
own observation must be its guide to the effect of pretrial publicity.





Subject: 90-5193 -- CONCUR, MU'MIN v. VIRGINIA

 


    SUPREME COURT OF THE UNITED STATES


No. 90-5193




DAWUD MAJID MU'MIN, PETITIONER v. VIRGINIA

on writ of certiorari to the supreme court of virginia

[May 30, 1991]



    Justice O'Connor, concurring.
    No one doubts that Dawud Majid Mu'Min's brutal murder of Gladys
Nopwasky attracted extensive media coverage.  For days on end, the case
made headlines because it involved a macabre act of senseless violence and
because it added fuel to an already heated political controversy about the
wisdom of inmate work-release programs.  But the question we decide today
is not whether the jurors who ultimately convicted Mu'Min had previously
read or heard anything about the case; everyone agrees that eight of them
had.  Nor is the question whether jurors who read that Mu'Min had confessed
to the murder should have been disqualified as a matter of law.  See post,
at 8-9, 11-12.  This claim is squarely foreclosed by Patton v. Yount, 467
U. S. 1025 (1984), where we upheld a trial court's decision to seat jurors
who had read about the case notwithstanding that the defendant's written
confessions, which were not admissible at trial, were widely reported in
the press.  See id., at 1029; id., at 1047 (Stevens, J., dissenting).  The
only question before us is whether the trial court erred by crediting the
assurances of eight jurors that they could put aside what they had read or
heard and render a fair verdict based on the evidence.
    The dissent insists that the trial judge could not have assessed
realistically the jurors' credibility without first identifying the
information to which each individual juror had been exposed.  I disagree.
It is true that the trial judge did not know precisely what each individual
juror had read about the case.  He was undeniably aware, however, of the
full range of information that had been reported.  This is because Mu'Min
submitted to the court, in support of a motion for a change of venue, 47
newspaper articles relating to the murder.  Ante, at 2.  The trial judge
was thus aware, long before voir dire, of all of the allegedly prejudicial
information to which prospective jurors might have been exposed.
    With this information in mind, the trial judge had to determine whether
or not to believe the jurors' assurances that they would be able to enter
the jury box with an open mind.  To this end, he questioned prospective
jurors repeatedly about whether exposure to pretrial publicity had impaired
their ability to be impartial.  One juror who equivocated was excused by
the trial court on its own motion.  Ante, at 4-5.  As to the 12 jurors
ultimately selected, the trial judge determined that their assurances of
impartiality were credible.  As we observed in Patton v. Yount, credibility
determinations of this kind are entitled to "special deference," 467 U. S.,
at 1038, and will be reversed only for "manifest error."  Id., at
1031-1032.
    The dissent is correct to point out that the trial judge could have
done more.  He could have decided, in his discretion, to ask each juror to
recount what he or she remembered reading about the case.  The fact
remains, however, that the trial judge himself was familiar with the
potentially prejudicial publicity to which the jurors might have been
exposed.  Hearing individual jurors repeat what the judge already knew
might still have been helpful: a particular juror's tone of voice or
demeanor might have suggested to the trial judge that the juror had formed
an opinion about the case and should therefore be excused.  I cannot
conclude, however, that "content" questions are so indispensable that it
violates the Sixth Amendment for a trial court to evaluate a juror's
credibility instead by reference to the full range of potentially
prejudicial information that has been reported.  Accordingly, I join the
Court's opinion.

------------------------------------------------------------------------------




Subject: 90-5193 -- DISSENT, MU'MIN v. VIRGINIA

 


    SUPREME COURT OF THE UNITED STATES


No. 90-5193



DAWUD MAJID MU'MIN, PETITIONER v. VIRGINIA

on writ of certiorari to the supreme court of virginia

[May 30, 1991]



    Justice Marshall, with whom Justice Blackmun and Justice Stevens join
as to all but Part IV, dissenting.
    Today's decision turns a critical constitutional guarantee -- the Sixth
Amendment's right to an impartial jury -- into a hollow formality.
Petitioner Dawud Majid Mu'Min's capital murder trial was preceded by
exceptionally prejudicial publicity, and at jury selection 8 of the 12
jurors who ultimately convicted Mu'Min of murder and sentenced him to death
admitted exposure to this publicity.  Nonetheless, the majority concludes
that the trial court was under no obligation to ask what these individuals
knew about the case before seating them on the jury.  Instead, the majority
holds that the trial court discharged its obligation to ensure the jurors'
impartiality by merely asking the jurors whether they thought they could be
fair.
    The majority's reasoning is unacceptable.  When a prospective juror has
been exposed to prejudicial pretrial publicity, a trial court cannot
realistically assess the juror's impartiality without first establishing
what the juror already has learned about the case.  The procedures employed
in this case were wholly insufficient to eliminate the risk that twothirds
of Mu'Min's jury entered the jury box predisposed against him.  I dissent.

I
    The majority concedes that the charges against Mu'Min "engendered
substantial publicity," ante, at 1, and that "news reports about Mu'Min
were not favorable," ante, at 13, but seeks to minimize the impact of the
pretrial publicity by arguing that it was not as extensive as in other
cases that have come before this Court, ibid.  The majority's observation
is completely beside the point.  Regardless of how widely disseminated news
of the charges against Mu'Min might have been, the simple fact of the
matter is that twothirds of the persons on Mu'Min's jury admitted having
read or heard about the case.  While the majority carefully avoids any
discussion of the specific nature of the pretrial publicity, it is
impossible to assess fairly Mu'Min's claim without first examining
precisely what was written about the case prior to trial.
    On September 22, 1988, Gladys Nopwasky was stabbed to death in the
retail carpet and flooring store she owned in Dale City, Virginia.  Several
weeks later, Mu'Min, an inmate serving a 48-year sentence for first-degree
murder, was indicted for murdering Nopwasky.  Facts developed at trial
established that Mu'Min had committed the murder after escaping from the
site of a Virginia Department of Transportation work detail.  See 239 Va.
433, 437-438, 389 S. E. 2d 886, 889-890 (1990).
    The circumstances of the murder generated intense local interest and
political controversy.  The press focused on the gross negligence of the
corrections officials responsible for overseeing the work detail from which
Mu'Min had escaped.  It was reported, for instance, that the facility to
which Mu'Min was assigned had been enclosed by only a four-foot high fence,
with a single strand of barbed wire across the top.  See App. in No. 890899
(Va. Sup. Ct.), p. 963 (hereinafter App.).  It was also reported that the
lax supervision at the facility allowed the inmates to have ready access to
alcohol, drugs, and weapons and to slip away from the work detail for
extended periods without detection.  Id., at 922, 939, 963-964.  Shortly
after the charges against Mu'Min became public, the state official in
charge of administering both corrections and highway programs issued a
public apology.  Id., at 927.  Not satisfied, a number of area residents
wrote editorials demanding that all state officials responsible for the
inmate work-release program be fired, id., at 930, 931, 937, 974, and area
leaders pushed for increased controls on inmate-release programs, see id.,
at 933, 935, 936, 958.  Officials responded with the introduction of
stiffer restrictions on prison work crews, id., at 922, 938, and with the
suspension of furloughs for inmates convicted of violent crimes, id., at
970.  In explaining the new policies, the director of Virginia's Department
of Corrections acknowledged that the explosive public reaction to the
charges against Mu'Min had been intensified by the case of Willie Horton,
whose rape and assault of a Maryland woman while on furlough became a major
issue in the 1988 presidential campaign.  " `The world's in an uproar right
now,' " the official was quoted as stating.  Ibid.       Naturally, a great
deal of the media coverage of this controversy was devoted to Mu'Min and
the details of his crime.  Most of the stories were carried on the front
pages of local papers, and almost all of them were extremely prejudicial to
Mu'Min.  Readers of local papers learned that Nopwasky had been discovered
in a pool of blood, with her clothes pulled off and semen on her body.
Id., at 925.  In what was described as a particularly "macabre" side of the
story, a local paper reported that, after raping and murdering Nopwasky,
Mu'Min returned to the work site to share lunch with other members of the
prison detail.  Id., at 963.
    Readers also learned that Mu'Min had confessed to the crime.  Under the
banner headlines, "Murderer confesses to killing woman," id., at 975-976,
and "Inmate Said to Admit to Killing," id., at 925, the press accompanied
the news of Mu'Min's indictment with the proud announcement of Virginia's
Secretary of Transportation and Public Safety that the State had already
secured Mu'Min's acknowledgment of responsibility for the murder.  See id.,
at 975, 981.  Subsequent stories reported that, upon being confronted with
the charges, Mu'Min initially offered the incredible claim that he had
entered the store only to help Nopwasky after witnessing another man
attempting to rape her.  Id., at 932, 945.  However, according to these
reports, Mu'Min eventually abandoned this story and confessed to having
stabbed Nopwasky twice with a steel spike, once in the neck and once in the
chest, after having gotten into a dispute with her over the price of
Oriental rugs.  Id., at 945, 955.  One of these stories was carried under
the front-page headline: "Accused killer says he stabbed Dale City woman
after argument."  Id., at 945.
    Another story reported that Mu'Min had admitted at least having
contemplated raping Nopwasky.  According to this article, Mu'Min had told
authorites, " `The thought did cross my mind, but I did not have sex with
her.' "  Id., at 959.  This item was reported as a front-page story,
captioned by the headline: "Mu'Min Says He Decided against Raping
Nopwasky."  Ibid.  See also id., at 922 (headline reading "Laxity was
factor in sex killing").
    Those who read the detailed reporting of Mu'Min's background would have
come away with little doubt that Mu'Min was fully capable of committing the
brutal murder of which he was accused.  One front-page story set forth the
details of Mu'Min's 1973 murder of a cab driver.  See id., at 951.
Another, entitled "Accused killer had history of prison trouble," stated
that between 1973 and 1988, Mu'Min had been cited for 23 violations of
prison rules and had been denied parole six times.  Id., at 942.  It was
also reported that Mu'Min was a suspect in a recent prison beating.  Id.,
at 921.  Several stories reported that Mu'Min had strayed from the Dale
City work detail to go on numerous criminal forays before murdering
Nopwasky, sometimes stealing beer and wine, id., at 932, 956, 959, and on
another occasion breaking into a private home, id., at 964.  As quoted in a
local paper, a Department of Corrections report acknowledged that Mu'Min "
`could not be described as a model prisoner.' "  Id., at 939, 969.
Contacted by a reporter, one of Mu'Min's fellow inmates described Mu'Min as
a " `lustful' " individual who did " `strange stuff.' "  " `Maybe not
this,' " the inmate was quoted as saying, " `but I knew something was going
to happen.' "  Id., at 964.
    Indeed, readers learned that the murder of Nopwasky could have been
avoided if the State had been permitted to seek the death penalty in
Mu'Min's 1973 murder case.  In a story headlined "Mu'Min avoided death for
1973 murder in Va.," one paper reported that but for this Court's decision
a year earlier in Furman v. Georgia, 408 U. S. 238 (1972), which
temporarily invalidated the death penalty, the prosecutor at the earlier
trial "would have had a case of capital murder."  App., at 951.  As
reported in the press, the prosecutor who indicted Mu'Min for murdering
Nopwasky concurred that the case underscored the need for " `more and
swifter capital punishment.' "  Id., at 980.
    Finally, area residents following the controversy were told in no
uncertain terms that their local officials were already convinced of
Mu'Min's guilt.  The local Congressman announced that he was "deeply
distressed by news that my constituent Gladys Nopwasky was murdered by a
convicted murderer serving in a highway department work program" and
demanded an explanation of the "decisions that allowed a person like Dawad
Mu'min to commit murder."  Id., at 981.  His opponent in the 1988
congressional election, a member of the Virginia House of Delegates,
likewise wrote an editorial in which he stated, "I am outraged that a
Department of Corrections inmate apparently murdered a resident of Dale
City."  Id., at 984.  Assuring the public that the right person had been
charged with the crime, the local police chief explained, " `We haven't
lost very many [murder cases] lately. . . .  All of the evidence will come
out at some point.' "  Id., at 979.  Indeed, by virtue of the intense media
coverage, that "point" was reached long before trial.
II
    The question before us is whether, in light of the charged atmosphere
that surrounded this case, the trial court was constitutionally obliged to
ask the eight jurors who admitted exposure to pretrial publicity to
identify precisely what they had read, seen, or heard.  The majority
answers this question in the negative.  According to the majority, the
trial court need ask no more of a prospective juror who has admitted
exposure to pretrial publicity than whether that prospective juror views
himself as impartial.  Our cases on jurorbias, the majority asserts, have
never gone so far as to require trial courts to engage in so-called
"content questioning," and to impose such a requirement would prove unduly
burdensome to the administration of justice.  I cannot accept this
analysis.
    This Court has long and repeatedly recognized that exposure to pretrial
publicity may undermine a defendant's Sixth Amendment guarantee to trial by
an impartial jury.  E. g., Irvin v. Dowd, 366 U. S. 717 (1961); Rideau v.
Louisiana, 373 U. S. 723 (1963); Sheppard v. Maxwell, 384 U. S. 333 (1966);
Murphy v. Florida, 421 U. S. 794 (1975); Patton v. Yount, 467 U. S. 1025
(1984). {1}  In order for the jury to fulfill its constitutional role, each
juror must set aside any preconceptions about the case and base his verdict
solely on the evidence at trial.  Irvin v. Dowd, supra, at 722.  "The
theory of our system is that the conclusions to be reached in a case will
be induced only by evidence and argument in open court, and not be any
outside influence, whether of private talk or public print."  Patterson v.
Colorado ex rel. Attorney General, 205 U. S. 454, 462 (1907).
    Nonetheless, before today, this Court had not been called upon to
address in any great detail the procedures necessary to assure the
protection of the right to an impartial jury under the Sixth Amendment.  In
particular, although our cases indicate that the trial court's conclusion
that a particular juror has not been overwhelmed by pretrial publicity is
reviewable only for " `manifest error,' " Patton v. Yount, supra, at 1031,
quoting Irvin v. Dowd, supra, at 723, we have never indicated the type of
voir dire that the trial court must undertake in order for its findings to
merit this " `special deference,' " Patton v. Yount, supra, at 1038,
quoting Bose Corp. v. Consumers Union of U. S., Inc., 466 U. S. 485, 500
(1984).  Because the issue in today's case is essentially one of first
impression, the majority's observation that our racialbias cases have never
"gone so far" as to require content questioning, see ante, at 15, is
irrelevant.  Even assuming that the scope of voir dire in the
pretrial-publicity setting need be no greater than the scope of voir dire
in the racialbias setting, no inference can be drawn from the failure of
decisions like Ham v. South Carolina, 409 U. S. 524 (1973), and Aldridge v.
United States, 283 U. S. 308 (1931), to "require questioning of individual
jurors about facts or experiences that might have led to racial bias,"
ante, at 15, because the sole issue in those cases was whether any inquiry
into racial bias was required.
    Indeed, the only firm conclusion that can be drawn from our
impartial-jury jurisprudence is that a prospective juror's own "assurances
that he is equal to the task cannot be dispositive of the accused's
rights."  Murphy v. Florida, supra, at 800.  As Justice O'Connor has
observed, an individual "juror may have an interest in concealing his own
bias . . . [or] may be unaware of it."  Smith v. Phillips, 455 U. S. 209,
221-222 (1982) (concurring opinion).  "Natural human pride would suggest a
negative answer to whether there was a reason the juror could not be fair
and impartial."  United States v. Dellinger, 472 F. 2d 340, 375 (CA7 1972);
compare Irvin v. Dowd, supra, at 728 ("No doubt each juror was sincere when
he said that he would be fair and impartial to petitioner, but the
psychological impact requiring such a declaration before one's fellows is
often its father").  It is simply impossible to square today's decision
with the established principle that, where a prospective juror admits
exposure to pretrial publicity, the trial court must do more than elicit a
simple profession of open-mindedness before swearing that person into the
jury.
    To the extent that this Court has considered the matter, it has
emphasized that where a case has been attended by adverse pretrial
publicity, the trial court should undertake "searching questioning of
potential jurors . . . to screen out those with fixed opinions as to guilt
or innocence."  Nebraska Press Assn. v. Stuart, 427 U. S. 539, 564 (1976)
(emphasis added); accord, id., at 602 (Brennan, J., concurring in
judgment).  Anything less than this renders the defendant's right to an
impartial jury meaningless.  See Ham v. South Carolina, supra, at 532
(Marshall, J., concurring in part and dissenting in part).  As this Court
has recognized, "[p]reservation of the opportunity to prove actual bias is
a guarantee of a defendant's right to an impartial jury."  Dennis v. United
States, 339 U. S. 162, 171-172 (1950).  The fact that the defendant bears
the burden of establishing juror partiality, see, e. g., Wainwright v.
Witt, 469 U. S. 412, 423 (1985); Irvin v. Dowd, supra, at 723, makes it all
the more imperative that the defendant be entitled to meaningful
examination at jury selection in order to elicit potential biases possessed
by prospective jurors.
    In my view, once a prospective juror admits exposure to pretrial
publicity, content questioning must be part of the voir dire for at least
three reasons.  First, content questioning is necessary to determine
whether the type and extent of the publicity to which a prospective juror
has been exposed would disqualify the juror as a matter of law.  Our cases
recognize that, under certain circumstances, exposure to particularly
inflammatory publicity creates so strong a presumption of prejudice that
"the jurors' claims that they can be impartial should not be believed."
Patton v. Yount, supra, at 1031; see Murphy v. Florida, 421 U. S., at
798-799.  For instance, in Irvin v. Dowd, supra, we concluded that a
capital defendant was constitutionally entitled to a change of venue
because no one who had been exposed to the inflammatory media descriptions
of his crime and confession could possibly have fairly judged his case, and
because this publicity had saturated the community in which the defendant
was on trial.  See id., at 725-729.  Similarly, in Rideau v. Louisiana, 373
U. S. 723 (1963), we presumed community prejudice mandating a change in
venue when petitioner's filmed confession obtained during a police
interrogation was broadcast on local television over three consecutive
days.  See id., at 724, 726-727.  An individual exposed to publicity
qualitatively akin to the publicity at issue in Irvin and Rideau is
necessarily disqualified from jury service no matter how earnestly he
professes his impartiality. {2}  But unless the trial court asks a
prospective juror exactly what he has read or heard about a case, the court
will not be able to determine whether the juror comes within this class.
Cf. Murphy v. Florida, supra, at 800-802 (performing careful analysis of
content of pretrial publicity to which jurors had been exposed before
rejecting impartiality challenge); Sheppard v. Maxwell, 384 U. S., at 357
(observing that jurors had been exposed to prejudicial publicity during
trial and criticizing trial court's failure to ask the jurors "whether they
had read or heard specific prejudicial comment about the case"). {3}
    Second, even when pretrial publicity is not so extreme as to make a
juror's exposure to it per se disqualifying, content questioning still is
essential to give legal depth to the trial court's finding of impartiality.
One of the reasons that a "juror may be unaware of" his own bias, Smith v.
Phillips, 455 U. S., at 222 (O'Connor, J., concurring), is that the issue
of impartiality is a mixed question of law and fact, see Irwin v. Dowd, 366
U. S., at 723, the resolution of which necessarily draws upon the trial
court's legal expertise.  Where, as in this case, a trial court asks a
prospective juror merely whether he can be "impartial," the court may well
get an answer that is the product of the juror's own confusion as to what
impartiality is. {4}  By asking the prospective juror in addition to
identify what he has read or heard about the case and what corresponding
impressions he has formed, the trial court is able to confirm that the
impartiality that the juror professes is the same impartiality that the
Sixth Amendment demands.
    Third, content questioning facilitates accurate trial court
factfinding.  As this Court has recognized, the impartiality "determination
is essentially one of credibility."  Patton v. Yount, 467 U. S., at 1038.
Where a prospective juror acknowledges exposure to pretrial publicity, the
precise content of that publicity constitutes contextual information
essential to an accurate assessment of whether the prospective juror's
profession of impartiality is believable.  If the trial court declines to
develop this background, its finding of impartiality simply does not merit
appellate deference.
    In my view, the circumstances of this case presented a clear need for
content questioning.  Exactly two-thirds of the persons on Mu'Min's jury
admitted having been exposed to information about the case before trial.
As I have shown, see supra, at 2-5, the stories printed prior to trial were
extraordinarily prejudicial, and were made no less so by the inflammatory
headlines typically used to introduce them.  Much of the pretrial publicity
was of the type long thought to be uniquely destructive of a juror's
ability to maintain an open mind about a case -- in particular, reports of
Mu'Min's confession, see Nebraska Press Assn. v. Stuart, 427 U. S., at 541,
563; id., at 602 (Brennan, J., concurring in judgment); Rideau v.
Louisiana, supra, Irvin v. Dowd, supra, at 725726; statements by prominent
public officials attesting to Mu'Min's guilt, see Nebraska Press Assn. v.
Stuart, supra, at 602 (Brennan, J., concurring in judgment); Sheppard v.
Maxwell, supra, at 340, 349; and reports of Mu'Min's unsavory past, see
Irvin v. Dowd, supra, at 725-726.  Because of the profoundly prejudicial
nature of what was published in the newspapers prior to trial, any juror
exposed to the bulk of it certainly would have been disqualified as a
matter of law under the standards set out in Irvin and Rideau.  Indeed, the
single story headlined "Murderer confesses to killing woman," App. 975-976,
or alternatively the story headlined "Accused killer says he stabbed Dale
City woman after argument," id., at 945, in my opinion would have had just
as destructive an effect upon the impartiality of anyone who read it as did
the filmed confession in Rideau upon the members of the community in which
it was broadcast.  At minimum, without inquiry into what stories had been
read by the eight members of the jury who acknowledged exposure to pretrial
publicity, the trial court was in no position to credit their individual
professions of impartiality.
    According to Justice O'Connor, the trial court was not obliged to pose
content questions because "the trial judge himself was familiar with the
potentially prejudicial publicity to which the jurors might have been
exposed."  Ante, at 2 (concurring opinion).  I find this observation
perplexing.  The judge's awareness of the contents of the extraordinarily
prejudicial stories written about Mu'Min is not a substitute for knowledge
of whether the prospective jurors were aware of the content of these
stories.  As I have explained, it is the judge's ignorance of the jurors'
exposure to particular stories that renders his findings of juror
impartiality unworthy of appellate deference.  Indeed, because at least two
of the stories would have rendered any person who read them per se
unqualified to sit on the jury, the trial judge's awareness of these
stories makes even more inexcusable his willingness to seat the jurors
without first ascertaining what they had read about the case. {5}  Nor is
it any answer to protest, as Justice O'Connor does, that the trial court
"repeatedly" asked the prospective jurors whether they thought they could
be fair.  Ibid.  When a prospective juror admits exposure to pretrial
publicity, the juror's assertion of impartiality, on its own, is
insufficient to establish his impartiality for constitutional purposes.  I
do not see how the juror's assertion of impartiality becomes any more
sufficient merely through repetition.
    Finally, I reject the majority's claim that content questioning should
be rejected because it would unduly burden trial courts.  See ante, at 8-9.
Sixty years ago, Chief Justice Hughes rejected a similar contention:


    "The argument is advanced on behalf of the Government that it would be
detrimental to the administration of the law in the courts of the United
States to allow questions to jurors as to racial or religious prejudices.
We think that it would be far more injurious to permit it to be thought
that persons entertaining a disqualifying prejudice were allowed to serve
as jurors and that inquiries designed to elicit the fact of
disqualification were barred.  No surer way could be devised to bring the
processes of justice into disrepute."  Aldridge v. United States, 283 U.
S., at 314-315.


This reasoning is fully applicable here.
    In any case, the majority's solicitude for administrative convenience
is wholly gratuitous.  Numerous Federal Circuits and States have adopted
the sorts of procedures for screening juror bias that the majority
disparages as being excessively intrusive.  See United States v. Addonozio,
451 F. 2d 49, 67 (CA3 1971) (content questioning and sequestered voir
dire), cert. denied, 405 U. S. 936 (1972); United States v. Davis, 583 F.
2d 190, 196 (CA5 1978) (content questioning); Silverthorne v. United
States, 400 F. 2d 627, 639 (CA9 1968) (content questioning); Minn. Rule
Crim. Proc. 26.02, Subd. 4(2)(b) (sequestered voir dire); State v. Pokini,
55 Haw. 640, 643-644, 526 P. 2d 94, 100-101 (1974) (content questioning);
State v. Godson, 412 So. 2d 1077, 1081 (La. 1982) (content questioning and
sequestered voir dire); State v. Claybrook, 736 S. W. 2d 95, 99-100 (Tenn.
1987) (sequestered voir dire); State v. Herman, 93 Wash. 2d 590, 593-594,
611 P. 2d 748, 750 (1980) (sequestered voir dire); State v. Finley, --- W.
Va. ---, --- - ---, 355 S. E. 2d 47, 50-51 (1987) (sequestered voir dire).
See also United States v. Colabella, 448 F. 2d 1299, 1303 (CA2 1971)
(recommending sequestered voir dire in cases involving prejudicial pretrial
publicity); United States v. Harris, 542 F. 2d 1283, 1295 (CA7 1976)
(same), cert. denied sub. nom. Clay v. United States, 430 U. S. 934 (1977),
American Bar Association Standards for Criminal Justice 8-3.5(a) (2d ed.
1980) (same), Judicial Conference of the United States, Revised Report of
the Judicial Conference Committee on the Operation of the Jury System on
the "Free Press -- Fair Trial" Issue, 87 F. R. D. 519, 532-533 (1980)
(same).  Additionally, two other States guarantee criminal defendants
sequestered voir dire as a matter of right in all capital cases.  See Ky.
Rule Crim. Proc. 9.38; Tex. Code Crim. Proc. Ann., Art. 35.17 (Vernon
1989).  In short, the majority's anxiety is difficult to credit in light of
the number of jurisdictions that have concluded that meaningful steps can
be taken to insulate the proceedings from juror bias without compromising
judicial efficiency. {6}

III
    "Given the pervasiveness of modern communications and the difficulty of
effacing prejudicial publicity from the minds of the jurors, the trial
courts must take strong measures to ensure that the balance is never
weighed against the accused."  Sheppard v. Maxwell, 384 U. S., at 362.  The
reason for this is simple and compelling: In our system of justice, "only
the jury may strip a man of his liberty or his life."  Irvin v. Dowd, 366
U. S., at 722.
    Eight of the twelve jurors who voted to strip Dawud Majid Mu'Min of his
life may well have been rendered incapable of reaching any other verdict
after reading of the grisly accusations against Mu'Min and the succession
of stories indicating that he was guilty.  The majority holds that the
trial court was entitled to seat those jurors -- entirely blind to what
they in fact already knew about the case -- based solely upon their
assertions of impartiality.  Far from "tak[ing] strong measures to ensure
that the balance [was not] weighed against the accused," the procedures
undertaken in this case amounted to no more than the trial court going
through the motions.  I cannot accept that a defendant's Sixth Amendment
right to an impartial jury means so little.  I dissent.

IV
    Even if I were to believe that the procedures employed at Mu'Min's jury
selection satisfied the requirements of the Sixth Amendment, I still would
vacate his death sentence.  I adhere to my view that the death penalty is
in all circumstances cruel and unusual punishment prohibited by the Eighth
and Fourteenth Amendments.  Gregg v. Georgia, 428 U. S. 153, 231 (1976)
(Marshall, J., dissenting).

------------------------------------------------------------------------------
1
    The Due Process Clause likewise guarantees a criminal defendant's right
to an impartial jury.  See Ristaino v. Ross, 424 U. S. 589, 595, n. 6
(1976).

2
    This Court has recognized that other types of extra-judicial influences
also will automatically require a juror's disqualification.  See Turner v.
Louisiana, 379 U. S. 466 (1965) (jurors placed in custody of deputy
sheriffs who were key prosecution witnesses presumed incapable of rendering
impartial verdict); Leonard v. United States, 378 U. S. 544 (1964) (per
curiam) (prospective jurors who heard trial court announce defendant's
guilty verdict in first trial presumed incapable of rendering impartial
verdict on second trial on similar charges).

3
    The majority suggests that content questions will be necessary only
when a community has been saturated by a " `wave of public passion,' " as
in Irvin.  See ante, at 12.  The majority's argument misses the point of
Irvin.  That case stands for the proposition that when a community has been
subject to unrelenting prejudicial pretrial publicity the entire community
will be presumed both exposed to the publicity and prejudiced by it,
entitling the defendant to a change of venue.  See Irvin v. Dowd, 366 U. S.
717, 727-728 (1961).  In this case, however, Mu'Min does not argue that the
pretrial publicity was extensive enough to create a presumption of
community prejudice.  Rather, he argues that the publicity was prejudicial
enough to create a presumption of prejudice on the part of any individual
juror who actually read it.

4
    The questioning of one prospective juror during the murder and bank
robbery trial of Susan Saxe provides a particularly dramatic example of
this phenomenon.  When initially queried, the juror admitted to having read
about the case but insisted that she was impartial.  The following colloquy
then ensued:

    "Q: When you said that you have only read about what [the defendant]
has done, what do you mean by that?
    "A: Well, we all know what she has done.  You know, we all know what
she has done.  So it is now up to the court to see if she is guilty or
innocent, but you have to go through the whole trial, you can't just read
something in the paper and say that girl is guilty, you know.  You
understand?
    "Q: Well, I am not sure.  I am not sure what you mean when you say we
all know what she has done.
    "A: Well, we all know the girl went in and held up the bank and the
policeman was shot there."

The juror was subsequently excused.  See National Jury Project, Jurywork
MDRV 10.03[3], pp. 10-47 to 10-49 (2d ed. 1990)

5
    Justice O'Connor claims that Patton v. Yount, 467 U. S. 1025 (1984),
"squarely foreclose[s]" any argument that a juror may be disqualified as a
matter of law when exposed to prejudicial pretrial publicity.  Ante, at 1
(concurring opinion).  She misreads Patton.  Far from rejecting this
principle, Patton expressly recognized the teaching of Irvin v. Dowd, 366
U. S. 717 (1961), that juror exposure to prejudicial pretrial publicity may
create so great a presumption of juror prejudice "that the jurors' claims
that they can be impartial should not be believed."  467 U. S., at 1031.
The Court in Patton merely found that the publicity in that case was not of
a character to justify a finding of presumed prejudice.  See id., at
1031-1035.

6
    Today's opinion addresses only the extent to which the Constitution
requires content questioning in cases involving pretrial publicity.  As the
majority acknowledges, the Federal Circuits that have mandated content
questioning in pretrial publicity cases have done so in the exercise of
their supervisory powers and not as a matter of constitutional law.  See
ante, at 10-11.  Consequently, nothing in today's opinion can be read as
overturning the use of content questioning in these Circuits, nor does
today's decision prevent other Federal Circuits from following suit.





Subject: 90-5193 -- DISSENT, MU'MIN v. VIRGINIA

 


 
SUPREME COURT OF THE UNITED STATES


No. 90-5193


DAWUD MAJID MU'MIN, PETITIONER v. VIRGINIA on writ of certiorari to the
supreme court of virginia [May 30, 1991]

    Justice Kennedy, dissenting.

    Our precedents mark the distinction between allegations that the
individual jurors might have been biased from exposure to pretrial
publicity, see Patton v. Yount, 467 U. S. 1025, 1036-1040 (1984); Murphy v.
Florida, 421 U. S. 794, 799-803 (1975), and the quite separate problem of a
case tried in an atmosphere so corruptive of the trial process that we will
presume a fair trial could not be held, nor an impartial jury assembled,
see Patton v. Yount, supra, at 1031-1035; Murphy v. Florida, supra, at
797-799.  Some of the principal cases cited in our opinions today, for
instance, Sheppard v. Maxwell, 384 U. S. 333 (1966), Rideau v. Louisiana,
373 U. S. 723 (1963), and probably Irvin v. Dowd, 366 U. S. 717 (1961),
come within the latter classification.  In these cases, the trial court or
the prosecutor may have been remiss in failing to protect the defendant
from a carnival atmosphere created by press coverage.  See, e. g., Sheppard
v. Maxwell, supra; Estes v. Texas, 381 U. S. 532 (1965).  Reviewing
decisions in this category, we indicated that "[t]he proceedings in these
cases were entirely lacking in the solemnity and sobriety to which a
defendant is entitled in a system that subscribes to any notion of fairness
and rejects the verdict of a mob."  Murphy v. Florida, supra, at 799.  We
have described Irvin's holding as being that "adverse pretrial publicity
can create such a presumption of prejudice in a community that the jurors'
claims that they can be impartial should not be believed."  Patton v.
Yount, supra, at 1031.
    I am confident this case does not fall in this latter category, and the
majority demonstrates the differences between the case before us and cases
like Irvin.  Our inquiry, in my view, should be directed to the question of
the actual impartiality of the seated jurors, and the related question
whether the trial judge conducted an adequate examination of those eight
jurors who acknowledged some exposure to press accounts of the trial.
    In deciding whether to seat an individual juror, the issue is whether
"the juror can lay aside" any opinion formed as a result of pretrial
publicity "and render a verdict based on the evidence presented in court."
Irvin v. Dowd, supra, at 723.


    "It is not required . . . that the jurors be totally ignorant of the
facts and issues involved.  In these days of swift, widespread and diverse
methods of communication, an important case can be expected to arouse the
interest of the public in the vicinity, and scarcely any  of those best
qualified to serve as jurors will not have formed some impression or
opinion as to the merits of the case."  Id., at 722.


The question is "one of historical fact: did a juror swear that he could
set aside any opinion he might hold and decide the case on the evidence,
and should the juror's protestation of impartiality have been believed."
Patton v. Yount, supra, at 1036.
    With all respect, I submit that Justice Marshall's dissent misreads our
precedents by failing to note the distinction between the two quite
different questions we have addressed.  He appears to conflate the two
categories of cases when he suggests that "[a]n individual exposed to
publicity qualitatively akin to the publicity at issue in Irvin and Rideau
is necessarily disqualified from jury service no matter how earnestly he
professes his impartiality."  Ante, at 9.  As Justice Marshall wrote on an
earlier occasion, cases like Irvin and Rideau "cannot be made to stand for
the proposition that juror exposure to information about a state
defendant's prior convictions or to news accounts of the crime with which
he is charged alone presumptively deprives the defendant of due process."
Murphy v. Florida, supra, at 799.  In an age when a national press has the
capacity to saturate the news with information about any given trial, I am
dubious of a proposed rule that a juror must be disqualified per se because
of exposure to a certain level of publicity, without the added pressure of
a "huge . . . wave of public passion," Irvin v. Dowd, supra, at 728.  If
that rule were adopted, suspects in many celebrated cases might be able to
claim virtual immunity from trial.
    Unlike the majority, however, and in alignment with some of the
concerns expressed by Justice Marshall and my colleagues in dissent, I find
the voir dire in this case was inadequate for an informed ruling that the
jurors were qualified to sit.  In my view, a juror's acknowledgement of
exposure to pretrial publicity initiates a duty to assess that individual
juror's ability to be impartial.  In Patton v. Yount, supra, we determined
that in federal habeas review, the statutory presumption of correctness of
28 U. S. C. MDRV 2254(d) should attach to a state court's determination
that a particular juror could be impartial.  We found "good reasons to
apply the statutory presumption of correctness to the trial court's
resolution of these questions" because "the determination has been made
only after an extended voir dire proceeding designed specifically to
identify biased veniremen" and because "the determination is essentially
one of credibility, and therefore largely one of demeanor."  467 U. S., at
1038.  Our willingness to accord substantial deference to a trial court's
finding of juror impartiality rests on our expectation that the trial court
will conduct a sufficient voir dire to determine the credibility of a juror
professing to be impartial.
    There is no single way to voir dire a juror, and I would not limit the
trial judge's wide discretion to determine the appropriate form and content
of voir dire questioning.  Little interaction may be required to make an
individual determination that a juror has the willingness and the ability
to set aside any preconceived ideas about the evidence in the case or the
guilt or innocence of the defendant.  A trial judge might choose to ask
about the content of the publicity the juror has encountered, and this
knowledge could help in deciding whether the juror's claim of impartiality
should be accepted.  But the judge can also evaluate impartiality by
explaining the trial processes and asking general questions about the
juror's commitment to follow the law and the trial court's instructions.
For instance, the questions which the trial judge asked in this case would
suffice if he had asked them of individual jurors and received meaningful
responses.  The Court is correct that asking content questions in front of
the other jurors may do more harm than good.  Further, I agree with Justice
O'Connor that any need for content questioning disappears if the trial
judge evaluating juror impartiality assumes a worst-case hypothesis that
the jurors have read or seen all of the pretrial publicity.
    My difficulty with the voir dire in this case was expressed by the
dissenting Justices of the Virginia Supreme Court:

"[T]he questions in this case were deficient in that the prospective jurors
could simply remain silent as an implied indication of a lack of bias or
prejudice.  This gave the trial court no effective opportunity to assess
the demeanor of each prospective juror in disclaiming bias."  239 Va. 433,
457, 389 S. E. 2d 886, 901 (1990) (Whiting, J., dissenting).


I fail to see how the trial court could evaluate the credibility of the
individuals seated on this jury.  The questions were asked of groups, and
individual jurors attested to their own impartiality by saying nothing.  I
would hold, as a consequence, that when a juror admits exposure to pretrial
publicity about a case, the court must conduct a sufficient colloquy with
the individual juror to make an assessment of the juror's ability to be
impartial.  The trial judge should have substantial discretion in
conducting the voir dire, but, in my judgment, findings of impartiality
must be based on something more than the mere silence of the individual in
response to questions asked en masse.
    I submit my respectful dissent.
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