Petition for writ of certiorari to the United States Court of
Appeals for the Eighth Circuit.
Denied.
Justice MARSHALL, with whom Justice BRENNAN joins,
dissenting.
A defendant's interest in a fundamentally fair trial outweighs
the State's interest in trying the defendant in a particular venue.
See, e.g., Lee v. Georgia, 488 U.S. 879 (1988) ( MARSHALL, J.,
dissenting from denial of certiorari). Accordingly, state laws that
restrict a court's ability to protect a defendant from the
possibility of juror exposure to prejudicial publicity
unconstitutionally infringe on a defendant's right to a fair and
impartial jury. Relying in part on its interpretation of Arkansas
law, see Ark.Code Ann. 16-88-207 ( 1987) ("In no case shall a
second removal of the same cause be allowed"), the trial court in
this capital case refused to allow petitioner a second change of
venue. I would grant the petition for certiorari to provide much
needed guidance regarding the minimal due process requirements for
state change of venue rules. When, as here, a State frames its
venue rule in absolute terms and fails to permit the trial court to
consider a particular defendant's right to a jury free from
preconceptions regarding his guilt, such a rule violates due
process. See Sheppard v. Maxwell,
384 U.S.
333, 352, 1516 (1966) (" 'It is true that in most cases
involving claims of due process deprivations we require a showing
of identifiable prejudice to the accused. Nevertheless, at times
a
Page 495 U.S.
911 , 912
procedure employed by the State involves such a probability that
prejudice will result that it is deemed inherently lacking in due
process' ") ( quoting Estes v. Texas,
381 U.S. 532, 542-543,
1632-1633 (1965)). Even if I did not believe that this case merited
plenary review, I would grant the petition for writ of certiorari
and vacate the death penalty, because I continue to believe 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- 241, 2973-2977 (1976) (MARSHALL, J.,
dissenting).
Petitioner was convicted of murdering a police officer and
sentenced to death. His conviction was reversed by the Arkansas
Supreme Court because of the trial court's failure to grant a
change of venue from Sebastian County, where the killing occurred.
Swindler v. State, 264 Ark. 107, 113,
569 S.W.2d
120, 123 (1978). Petitioner was thereafter retried in Scott
County, a small rural county adjacent to Sebastian. Waldron, the
seat of Scott County, is only 45 miles south of Fort Smith, the
location of both the crime and the first trial.
During voir dire, a majority of the 120 venirepersons indicated
that they were aware that petitioner had previously been found
guilty of the crime and that he was wanted in another State for
allegedly murdering two teenagers. More importantly, an
overwhelming majority of the venire-98 out of 120-either
tentatively or firmly believed that petitioner was guilty. The
strong local feelings regarding petitioner's guilt are reflected in
the comments of venireperson Thomas Bricksey:
"Q. [H]ave you discussed this case
with anybody?
"A. Oh, yes, sir.
"Q. All right, and have these people
expressed an opinion to you about this case?
"A. Yes, sir.
"Q. Could you tell me what those
opinions were? Did they think the defendant was guilty?
"A. I am afraid it was almost
unanimous.
"Q. Did you ever hear anybody state
that they thought he was not guilty?
"A. No sir." Tr. 1299.
Similar prejudicial attitudes surfaced in the voir dire of three
other jurors whom petitioner challenged for cause but who,
unlike
Page 495 U.S.
911 , 913
Bricksey, ultimately served on petitioner's jury. Each indicated
that he believed petitioner was guilty as a result of exposure to
pretrial publicity regarding petitioner's first trial. One of the
jurors, Thurman Jones, when asked whether he accepted the principle
that a person is innocent until proved guilty, replied, "I do, and
I would accept it more if he had not been tried. The only thing I
am wondering about now, since he has had a trial, and I know about
it, I am wondering if he is not going to have to prove to me that
he is innocent." Tr. 1149. Milton Staggs, another juror challenged
by petitioner, when asked whether he had an opinion about the first
verdict, stated, "Well, sure, based on what came out, I don't know
how it could be otherwise, you know." Tr. 1223. Henry Sunderman,
asked whether "you feel like because [the first jury] came to that
conclusion that the defendant may well be guilty," replied "I would
say yes." Tr. 979. The trial court, finding that each of the three
challenged jurors was capable of setting aside his opinion
regarding petitioner's guilt, denied petitioner's request that they
be struck for cause.
During the five days of voir dire, petitioner requested a change
of venue on several occasions. The trial court denied the motions,
relying in part on the Arkansas venue statute, 16-88-207. Tr.
878-879, 1407- 1408, 1560. At other points, the trial judge
rejected the venue change in apparent reliance on "the fact that
[petitioner] still ha[d peremptory] challenges left," Tr. 1075,
although petitioner exhausted his challenges before the entire jury
was seated. At the close of jury selection, petitioner moved for a
mistrial on the ground that the state statute prohibiting a second
change of venue unconstitutionally deprived him of a fair and
impartial jury. The trial court conceded that "it is quite obvious
that this case has received great amounts of publicity, and [that]
it is very difficult to find a juror, not only [in] Sebastian
County but apparently throughout this part of even the western part
of Arkansas, who have [sic] not read, heard or seen a great deal
about it." Tr. 1559. The court nonetheless denied the motion on the
basis of "the present Arkansas law and the record that was made"
during jury selection. Tr. 1560.
Petitioner filed a petition for habeas corpus. The District
Court denied relief and the Court of Appeals for the Eighth Circuit
affirmed, rejecting petitioner's claim that his constitutional
right to a fair and impartial jury was compromised by the trial
court's refusal to change venue or to strike for cause jurors
Jones,
Page 495 U.S.
911 , 914
Staggs, and Sunderman.
885 F.2d
1342, 1347-1350 (1989). The court afforded a "presumption of
correctness" to the state-court findings regarding the ability of
jurors to set aside whatever prejudice they harbored against
petitioner. Id., at 1347. The court also relied on Eighth Circuit
precedent, Simmons v. Lockhart,
814 F.2d
504 (1987), in which the court had stated that "the fact that a
venire panel is well informed on reported news is not by itself
prejudicial." Id., at 510. Lastly, the court rejected petitioner's
constitutional challenge to Arkansas' change of venue rule because
"the trial court based its denial of a second change of venue on
the fact that Swindler had not established prejudice resulting from
pretrial publicity." 885 F.2d, at 1347.
We have yet to address squarely the constitutionality of state
change of venue rules that limit a trial court's ability to protect
a defendant from the effects of prejudicial publicity.* Here, the
Court of Appeals attempted to avoid the constitutional question by
relying on the trial court's finding that the empaneled jury was
not unduly prejudiced. But the Court of Appeals failed to consider
the extent to which the Arkansas rule affected the trial court's
assessment of prejudice. The transcript makes clear that the
Arkansas rule was a strong factor in the trial court's decision and
that the court had difficulty separating its merits judgment from
its fear that a transfer of venue to another county "would cause a
serious jurisdictional problem" under Arkansas law. Tr. 1560.
The state court's refusal to transfer venue may have been
substantially affected by Arkansas' venue rule. When, on the basis
of such rules, a court fails to protect the defendant from a trial
that may be "but a hollow formality," Rideau v. Louisiana,
373 U.S.
723, 726, 83 S. Ct. 1417, 1419 (1963), this Court has a special
obligation to consider their constitutionality and to specify the
due process constraints on their application. I dissent.
Footnotes
[
Footnote *] The fact that
petitioner's claim in this case arises on a federal petition for
habeas corpus does not bar its consideration. Cf. Teague v. Lane,
489 U.S. 288
(1989). Assuming that the rule sought by petitioner is "new," it
also falls within the category of "procedures without which the
likelihood of an accurate conviction is seriously diminished." Id.,
at 313, 109 S. Ct. at 1064. The likelihood of an accurate
conviction is no doubt diminished when a defendant is tried by a
jury that has prejudged his case.
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