On petition for writ of certiorari to the Supreme Court of
Illinois.
The petition for a writ of certiorari is denied.
Justice MARSHALL, with whom Justice BRENNAN joins, dissenting
from denial of certiorari.
I would grant this petition for certiorari to consider the
extent of the obligations our decision in Smith v. Phillips,
455 U.S. 209
(1982), imposes on a trial judge confronted with a claim of juror
bias.
I
Petitioner Anthony Porter was convicted of two murders committed
in the course of an armed robbery and was sentenced to death.
During voir dire, the trial judge read a list of potential
witnesses, including the mother of Marilyn Green, one of the
victims. He did not ask whether any of the prospective jurors knew
any of the persons on the list, and none of them volunteered that
they did. After the jury returned a guilty verdict, petitioner
waived his right to a jury at the penalty proceeding. Before the
judge dismissed the jurors, however, he addressed them as
follows:
"THE COURT: It was brought to my attention before I actually
formally dismissed you that one of the jurors stated that he knew
that some other juror purportedly or allegedly went to church-to
the same church as one of the decedent's mother. Is that right, was
that you-please identify yourself. MRS. TRICKLET: * Yes, but that
didn't make any difference to me about that. THE COURT: Thank you,
ma'am. It didn't make any difference? MRS. TRICKLET: No
______--- * The trial transcript incorrectly lists the juror's
name as Tricklet, rather than Trigleth.
Page 479 U.S.
898 , 899
THE COURT: Ma'am, your name again? MRS. TRICKLET: Lilly B.
Tricklet THE COURT: It didn't make any difference to you, you
abided by your oath and did you recognize the fact when I had read
you the name of all the witnesses in the beginning before we even
started, you didn't recognize that? MRS. TRICKLET: No THE COURT:
When did you finally recognize- MRS. TRICKLET: After it had got
started and everything was going on. THE COURT: But, it made no
difference to you, is that right? MRS. TRICKLET: No, that is right.
THE COURT: I will now formally dismiss you. You are all dismissed."
People v. Porter,
111 Ill. 2d
386, 397-398, [95 Ill.Dec. 465, 469-470]
489 N.E.2d
1329, 1333-1334 (Ill.1986)." Defense counsel was not permitted
to question Mrs. Trigleth. After he suggested that "the Court
should have questioned this juror in detail as to her relationship
to that family," id., at 398, 95 Ill.Dec., at 470, 489 N.E.2d, at
1334, the judge made the following statement: "This Court will
state for the record that in an unusual proceeding, I think
probably the most unusual I have ever engaged in in all my years as
a lawyer and as a Judge, I did bring back the entire jury and I had
not dismissed them and the lady that identified herself was under
oath and said for the record that the facts that came to light
after the case, sometime after the case had commenced, in earnest,
didn't influence her whatsoever. "Accordingly, this Court felt that
going beyond that regarding that issue is not-would not have been
proper, would have invaded the sanctity of the jury and jury
deliberation. Mr. Porter talked to and did, in fact request and
have his constitutional right to a jury. The lady was under oath.
She was not on trial, Mr. Porter was." Id., at 413-414, 95
Ill.Dec., at 475, 489 N.E.2d, at 1339 (emphasis supplied).
Petitioner moved for a new trial. He submitted the affidavit of
Isaias Torres, the juror who had brought the matter to the court's
attention. In his affidavit, Torres stated that "a fellow juror
informed him that another juror sitting in judgment of the
facts
Page 479 U.S.
898 , 900
with them . . . knew the deceased, Marilyn Green's mother and
attended church with her." Id., at 402, 95 Ill.Dec., at 471, 489
N.E.2d, at 1335. He further stated that "this same Black female
juror, when the jury was given the case to deliberate on, entered
the jury room and said as far as she was concerned, they could vote
guilty right then, and she made this statement before any
discussion was had on the evidence. . . ." Ibid ( emphasis
supplied). At the hearing on petitioner's motion for a new trial,
which was held before the same judge, Mrs. Trigleth was not called
as a witness. After a brief oral argument, the judge denied the
motion.
The Illinois Supreme Court affirmed the trial court's denial of
petitioner's motion for a new trial, with three justices
dissenting. People v. Porter, supra. Although the State Supreme
Court recognized that the trial court's inquiry "could have, and
possibly should have, been more searching," it considered the
ruling to be within the trial judge's "sound discretion." Id., at
403, 95 Ill.Dec., at 472, 489 N.E.2d, at 1336. The State Supreme
Court concluded that "[t]he burden in this case was on the
defendant to support the allegations of his post-trial motion. . .
. Not only should the defendant have shown the nature of the
relationship between the juror and the victim's mother, but he also
had the burden of showing that he was prejudiced by this juror's
service." Id., at 404, 95 Ill.Dec., at 472, 489 N.E.2d, at
1336.
II
The right to a trial by an impartial jury lies at the heart of
due process. See, e.g., Irvin v. Dowd,
366 U.S. 717, 721-722,
1641-1642 (1961). This Court has held that due process requires
both "a jury capable and willing to decide the case solely on the
evidence before it, and a trial judge ever watchful to prevent
prejudicial occurrences and to determine the effect of such
occurrences when they happen." Smith v. Phillips,
455 U.S.
209, 217, 946, 71 L. Ed. 2d 78 (1982). When a substantial
question of juror bias is presented to the trial court, as it was
in this case, we have held that the defendant is entitled to a
hearing " 'with all interested parties permitted to participate.' "
Id., at 216 (quoting Remmer v. United States,
347 U.S.
227, 230, 451 (1954).
Under Smith v. Phillips, supra, the trial judge's inquiry into
juror bias in this case fell far short of the minimum required by
the Due Process Clause of the Fourteenth Amendment. The judge
merely called on the juror to identify herself and then asked her
"several times in a leading fashion to reaffirm that her ac-
Page 479 U.S.
898 , 901
quaintance with the mother did not influence her" in a colloquy
that " could have lasted only seconds." People v. Porter, supra,
111 Ill.2d, at 410, 95 Ill.Dec., at 475, 489 N.E.2d, at 1339
(Simon, J., dissenting). The trial judge failed to ascertain to any
meaningful degree the extent and nature of her relationship with
the victim's mother and the point at which she became aware that
she was acquainted with the mother. The juror's vague statement
that she realized it "[a]fter it had got started and everything was
going on" suggests only that she was not aware of it at voir dire.
She was never asked to explain why she had not brought the matter
to the court's attention when she realized the connection; had she
done so, one of the alternate jurors could have taken her place.
Moreover, the trial court did not allow defense counsel to question
her.
The State contends that petitioner had an opportunity to explore
the issue of bias at the post-trial hearing on his motion for a new
trial. That hearing, however, was woefully inadequate when measured
by our decisions in Phillips and Remmer. At a minimum, due process
requires that the defendant be allowed to question the juror on the
issue of bias. See Smith v. Phillips, supra, 455 U.S., at 217 n. 7
n. 7 (" determinations in Remmer-type hearings will frequently turn
upon the testimony of the juror in question"); see also id., at 222
(O'CONNOR, J., concurring). The Illinois Supreme Court criticized
defense counsel for failing to call Mrs. Trigleth or obtain an
affidavit from her, People v. Porter, supra, 111 Ill.2d, at 403, 95
Ill.Dec., at 472, 489 N.E.2d, at 1336. However, in light of the
trial judge's insistence on the sanctity of the jury's deliberation
and his refusal to allow defense counsel to question Mrs. Trigleth
while she was under oath, counsel reasonably considered himself
foreclosed from contacting her in connection with his motion for a
new trial before the same judge. Thus, while petitioner had the
burden of showing both bias and actual prejudice, the trial judge's
admonitions appeared to deprive him of the only means of doing
so.
I continue to believe that the defendant should not bear the
burden of showing actual prejudice when the probability of bias is
substantial, as it is in this case, see Smith v. Phillips, supra,
455 U.S., at 224 (MARSHALL, J., dissenting). However, petitioner
never even had the opportunity of demonstrating prejudice due to
juror bias. This violated his right to due process and leaves in
doubt the impartiality of the jury that convicted him in this
capital case. Accordingly, I dissent from denial of the petition
for certiorari.
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