On petition for writ of certiorari to the Court of Criminal
Appeals of Oklahoma.
The petition for a writ of certiorari is denied.
Justice MARSHALL, with whom Justice BRENNAN joins,
dissenting.
This Court has insisted that an accused be tried by "a public
tribunal free of prejudice, passion, excitement, and tyrannical
power." Chambers v. Florida,
309 U.S. 227, 236-237,
476-477 (1940). We have recognized that failure to ensure the
impartiality of a jury "violates even the minimal standards of due
process." Irvin v. Dowd,
366 U.S.
717, 722, 1642 (1961). The Oklahoma court's denial of
petitioner's unopposed motion for change of venue raises serious
doubts about whether those minimal standards were met in this case.
These doubts demand that we undertake two separate inquiries.
First, we must consider whether and to what extent our precedents
regarding jury impartiality set constitutional limits on state
change of venue standards. Second, we must address the proper
application of those precedents to the unique setting of capital
sentencings.
I
On March 23, 1983, Marie Stubbs, wife of Hilton Stubbs, a
prominent storekeeper in Ardmore, Oklahoma, was shot and killed in
her home. The murder and the subsequent arrest of petitioner Robert
Brecheen were the subject of extensive local newspaper and
television coverage. Ardmore, which has a population of
approximately 25,000, is located in Carter County, which has a
population of approximately 40,000. Petitioner's attorney filed a
motion, accompanied by affidavits, for change of venue from Carter
County. Although the motion was unopposed, the trial judge refused
to grant it after conducting voir dire. The jury that was finally
empaneled contained one person who knew the victim, one
Page 485 U.S.
909 , 910
who knew the victim's daughter, and three who knew the victim's
husband. All but one of the jurors were customers at the Stubbs'
family store. Three jurors knew the prosecuting attorney and three
knew officers who would testify for the prosecution. All of the
jurors had heard of the case through pretrial publicity. The jury
convicted petitioner of burglary and homicide and sentenced him to
death.
On appeal, petitioner challenged, inter alia, the trial court's
refusal to grant him a change of venue. The Oklahoma Court of
Criminal Appeals rejected petitioner's claim, holding that "[i]t is
only when a criminal defendant establishes by clear and convincing
evidence that a fair trial is a virtual impossibility that such a
motion should be granted ." App. to Pet. for Cert. 2.
II
This Court has established that a refusal to grant a motion for
change of venue may constitute a violation of due process. See
Groppi v. Wisconsin,
400 U.S. 505 (1971);
Rideau v. Louisiana,
373 U.S. 723 (1963);
Irvin v. Dowd, supra. A defendant seeking to establish such a
violation must demonstrate either that his trial resulted in
"identifiable prejudice" or that it gave rise to a presumption of
prejudice because it involved "such a probability that prejudice
will result that it is deemed inherently lacking in due process."
Estes v. Texas,
381
U.S. 532, 542-543, 1632-1633 (1965). In deciding whether such a
presumption of prejudice is warranted, courts must examine "any
indications in the totality of circumstances that petitioner's
trial was not fundamentally fair." Murphy v. Florida,
421 U.S.
794, 799, 2036 (1975).
We have had little occasion to apply these basic principles to
determine whether particular state standards for change of venue
comport with the requirements of due process. Most of our
precedents regarding due process and jury neutrality consist of
careful examinations of the circumstances surrounding specific
trials to determine whether they give rise to a presumption of
prejudice. See, e.g., Sheppard v. Maxwell,
384 U.S. 333 (1966);
Turner v. Louisiana,
379 U.S. 466 (1965).
Although we did strike down one state venue statute which
categorically denied change of venue for misdemeanors, see Groppi
v. Wisconsin, supra, we have not considered any other wholesale
restrictions on venue change.
Page 485 U.S.
909 , 911
In this vacuum of constitutional precedent, States have taken
divergent paths. Most States have followed the well-trod course of
granting motions for venue change when the totality of the
circumstances establish " 'a reasonable likelihood that in the
absence of such relief, a fair trial cannot be had.' " Martinez v.
Superior Court,
29 Cal. 3d
574, 577-578, 174 Cal. Rptr. 701, 702, 629 P.2d 502, 503 (1981)
(quoting Maine v. Superior Court,
68 Cal. 2d
375, 383, 66 Cal. Rptr. 724, 729, 438 P.2d 372, 377 (1968)).
The Martinez court defined "reasonable likelihood" as a lesser
standard of proof than "more probable than not." 29 Cal. 3d at 578,
174 Cal. Rptr. at 702, 629 P.2d at 503. See also People v. Gendron,
41 Ill. 2d
351, 243 N.E.2d 208 (1968) (adopting "reasonable likelihood"
standard), cert. denied, 396 U.S. 889 (1969); State v. Cuevas,
288 N.W.2d 525
(Iowa 1980) (same); State v. Beier,
263 N.W.2d
622 ( Minn.1978) (same). Other States have decided to grant
change of venue motions when the circumstances establish a
substantial likelihood of prejudice. See, e.g., Commonwealth v.
Cohen, 489 Pa. 167,
413 A.2d
1066, cert. denied, 449 U.S. 840 (1980). The American Bar
Association has explicitly endorsed this latter approach in its
Standards Relating to Fair Trial and Free Press 8-3.3(c) (2d ed.
1980 ). Oklahoma, however, diverges sharply from its sister States
in setting a much higher threshold for granting a change of venue
motion, requiring " clear and convincing evidence" that a fair
trial is a "virtual impossibility."
In my view, Oklahoma's strong presumption against venue change
fails to accommodate properly the concerns expressed in our due
process precedents. Those precedents implicitly acknowledge that
the defendant's interest in a fundamentally fair trial outweighs
the State's interest in holding that trial in a particular
district. Oklahoma's standard is out of step with this Court's
repeated recognition that "our system of law has always endeavored
to prevent even the probability of unfairness." In re Murchison,
349 U.S.
133, 136, 625 (1955) ( emphasis added), quoted in Sheppard v.
Maxwell, supra, 384 U.S. at 352, 86 S. Ct. at 1517; Estes v. Texas,
supra, 381 U.S. at 543, 85 S. Ct. at 1633. We frequently have
invoked the opinion of Chief Justice Taft 50 years ago, which held
that "[e]very procedure which would offer a possible temptation to
the average man . . . to forget the burden of proof required to
convict the defendant, or which might lead him not to hold the
balance nice, clear and true between the State and the accused,
denies the latter due process of law." Tumey v. Ohio,
273 U.S.
510, 532, 444 (1927) (emphasis added), cited in Irvin v. Dowd,
supra, 366 U.S. at 722, 81 S. Ct. at 1642; Estes v. Texas,
Page 485 U.S.
909 , 912
supra, 381 U.S. at 543, 85 S. Ct. at 1633. We should grant
certiorari to establish clearly the minimal requirements of the Due
Process Clause for state change of venue standards.
III
Our prior precedents have left a second gap of perhaps even more
importance. We have failed to give any guidance as to the
circumstances that might give rise to a presumption of prejudice in
the sentencing phase of a bifurcated capital trial. Our cases have
dealt exclusively with factors that might influence the jury in its
fact-finding function when it makes determinations of guilt or
innocence. We held, for example, that the pretrial broadcast of a
defendant in the act of confessing to the charged crime inherently
prejudiced the jury's ability to evaluate objectively his guilt.
See Rideau v. Louisiana, supra. Similarly, we held that when key
government witnesses doubled as official guardians of the jury
during deliberations, the ability of the jury to assess witness
credibility was presumptively prejudiced. See Turner v. Louisiana,
supra. But the influences that might impair the truth-seeking
function of the jury in guilt determinations are not identical to
those that impinge on its responsibility to administer fairly the
death penalty.
This case demonstrates that lack of congruence. The fact that
many of the jurors knew the victim or members of the victim's
family might not presumptively establish the fundamental unfairness
of the guilt proceedings. There may be little reason to doubt the
testimony of such jurors at voir dire that they could put aside
their knowledge of the consequences of the crime in order to
establish the facts of its commission. But the jury wears an
altogether different hat when it sits as sentencer. It must make a
moral decision whether a defendant already found guilty deserves to
die for his crime. As we have previously recognized, the function
of the sentencing jury is to "express the conscience of the
community on the ultimate question of life or death." Witherspoon
v. Illinois,
391 U.S.
510, 519, 1775d 776 (1968). When a jury is composed, as this
petitioner's was, of people who are personally familiar with the
consequences of a defendant's crime, it cannot perform this
function in an impartial manner. We held as much just last Term,
when we declared that the Eighth Amendment forbids the introduction
of a victim impact statement during the sentencing phase of a
capital trial. We concluded that a description of the effects of
the murder on the victim's family and friends
Page 485 U.S.
909 , 913
was too likely to inflame the jury and lead to a sentence based
on caprice or emotion rather than reason. See Booth v. Maryland,
482 U.S. 496, 107
S. Ct. 2529 (1987). Surely empaneling a jury with personal
knowledge of these effects would have much the same result. The
likelihood of such a result should give rise to a presumption of
prejudice during the sentencing phase, just as extensive news
coverage might establish that presumption in the guilt phase.
IV
This petition raises two important issues that call for this
Court's review. We must establish what the Due Process Clause
requires of state legislatures and courts in formulating general
standards for change of venue. Oklahoma's strong presumption
against granting such motions raises serious concerns about the
fundamental fairness of its criminal proceedings. In addition, we
must recognize and rule on the difference between the guilt and
penalty phases of a capital trial for the purpose of presuming
prejudice when jury impartiality is called into question. This
distinction is required not because death is a qualitatively
different penalty from any other (although it is), but because the
jury's function is profoundly altered when it sits as
sentencer.
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