This case brings before us a claim that pretrial publicity so infected a state criminal trial as to deny the defendant his Sixth Amendment right to an "impartial jury."

On April 28, 1966, the body of Pamela Rimer, an 18-year-old high school student, was found in a wooded area near her home in Luthersburg, Clearfield County, Pa. There were numerous wounds about her head and cuts on her throat and neck. An autopsy revealed that she died of strangulation when blood from her wounds was drawn into her lungs. The autopsy showed no indication that she had been sexually assaulted.

At about 5:45 the following morning, respondent Yount appeared at the State Police Substation in nearby DuBois. Yount, who had been the victim's high school mathematics teacher, proceeded to give the police oral and written confessions to the murder. The police refused to release the confession to the press, and it was not published until after it was read at Yount's arraignment three days later. At his trial in 1966, the confessions were admitted into evidence. Yount took the stand and claimed temporary insanity. The jury convicted him of first-degree murder and rape, and he was sentenced to life imprisonment. On direct appeal the Pennsylvania Supreme Court determined that under Miranda v. Arizona, police had given Yount inadequate notice of his right to an attorney prior to his confession. The court remanded for a new trial. 

Prior to the second trial in 1970, the trial court ordered suppression of Yount's written confessions and that portion of the oral confession that was obtained after he was legally in custody. The prosecution dismissed the rape charge. There followed an extensive voir dire that is now at the heart of this case. Jury selection began on November 4, 1970, and took 10 days, 7 jury panels, 292 veniremen, and 1,186 pages of testimony. Yount moved for a change of venue before, and several times during, the voir dire. He argued that the widespread dissemination of prejudicial information could not be eradicated from the minds of potential jurors, and cited in support the difficulty of the voir dire and numerous newspaper and other articles about the case. The motions were denied. The trial court noted that the articles merely reported events without editorial comment; that the length of the voir dire resulted in part from the court's leniency in allowing examinations and challenges of the jurors; that "almost all, if not all," the jurors seated had "no prior or present fixed opinion"; and that there had been "little, if any, talk in public" between the two trials. The court also observed that the voir dire of the second trial had been sparsely attended.

Ultimately, 12 jurors and 2 alternates were seated. At the second trial, Yount did not take the stand and did not claim temporary insanity. Instead he relied upon cross-examination and character witnesses in an attempt to undermine the State's proof of his intent. The jury convicted him again of first-degree murder, and he was resentenced to life imprisonment. The trial court denied a motion for a new trial, finding that practically no publicity had been given to the case between the two trials, and that little public interest was shown during the second trial. In addition, the court concluded that the jury was without bias. The Pennsylvania Supreme Court affirmed the conviction and the trial court's findings. 

In January 1981, Yount filed a petition for a writ of habeas corpus in United States District Court. He claimed, inter alia, that his conviction had been obtained in violation of his Sixth and Fourteenth Amendment right to a fair trial by an impartial jury....

Yount briefly argues here that juror Hrin, as well as the two alternates, were erroneously seated over his challenges for cause. And there is no evidence that the alternate jurors, who did not sit in judgment, actually talked with the other jurors during the 4-day trial. But Judge Garth in the court below based his concurrence on the view that Hrin would have required Yount to produce evidence to overcome his inclination to think the accused was guilty, and the majority of the panel thought that the 4-day association between the alternates and the other jurors "operate[d] to subvert the requirement that the jury's verdict be based on evidence developed from the witness stand." Therefore, we will consider briefly the claims as to all three jurors.

It was the view of all three Court of Appeals judges that the question whether jurors have opinions that disqualify them is a mixed question of law and fact. Thus, they concluded that the presumption of correctness due a state court's factual findings does not apply. The opinions below relied for this proposition on Irvin v. Dowd, 366 U.S., at 723 . Irvin addressed the partiality of the trial jury as a whole. We do not think its analysis can be extended to a federal habeas corpus case in which the partiality of an individual juror is placed in issue. That question is not one of mixed law and fact. Rather it is plainly 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. 

There are good reasons to apply the statutory presumption of correctness to the trial court's resolution of these questions. First, the determination has been made only after an often extended voir dire proceeding designed specifically to identify biased veniremen. It is fair to assume that the method we have relied on since the beginning usually identifies bias. Second, the determination is essentially one of credibility, and therefore largely one of demeanor. As we have said on numerous occasions, the trial court's resolution of such questions is entitled, even on direct appeal, to "special deference." 

Thus the question is whether there is fair support in the record for the state courts' conclusion that the jurors here would be impartial. The testimony of each of the three challenged jurors is ambiguous and at times contradictory. This is not unusual on voir dire examination, particularly in a highly publicized criminal case. It is well to remember that the lay persons on the panel may never have been subjected to the type of leading questions and cross-examination tactics that frequently are employed, and that were evident in this case. Prospective jurors represent a cross section of the community, and their education and experience vary widely. Also, unlike witnesses, prospective jurors have had no briefing by lawyers prior to taking the stand. Jurors thus cannot be expected invariably to express themselves carefully or even consistently. Every trial judge understands this, and under our system it is that judge who is best situated to determine competency to serve impartially. The trial judge properly may choose to believe those statements that were the most fully articulated or that appeared to have been least influenced by leading.

The voir dire examination of juror Hrin was carefully scrutinized by the state courts and the Federal District Court, as he was challenged for cause and was a member of the jury that convicted the defendant. We think that the trial judge's decision to seat Hrin, despite early ambiguity in his testimony, was confirmed after he initially denied the challenge. Defense counsel sought and obtained permission to resume cross-examination. In response to a question whether Hrin could set his opinion aside before entering the jury box or would need evidence to change his mind, the juror clearly and forthrightly stated: "I think I could enter it [the jury box] with a very open mind. I think I could . . . very easily. To say this is a requirement for some of the things you have to do every day." After this categorical answer, defense counsel did not renew their challenge for cause. 

....The Court today also rejects Yount's claim that juror Hrin was erroneously seated over his challenge for cause. Before explaining why I disagree with this conclusion, it is necessary to set forth a more complete version of Hrin's voir dire testimony than is set forth by the Court.

Hrin, in response to the prosecution's questioning, gave the following testimony:

"Q. Have you formed any opinion as to the guilt or innocence of Mr. Yount?

"A. To the degree that it was written up in the papers, yes.

"Q. Is this a fixed opinion on your part?

"A. This is sort of difficult to answer. Fixed?

"Q. Let me ask - if you were to be selected as a juror in this case and take the jury box, could you erase or remove the opinion you now hold and render a verdict based solely on the evidence and law produced at this trial?

"A. It is very possible. I wouldn't say for sure.

"Q. Do you think you could?

"A. I think I possibly could.

"Q. Then the opinion you hold is not necessarily a fixed and immobile opinion?

"A. I would say not, because I work at a job where I have to change my mind constantly.

"Q. Would you be able to change your mind regarding your opinion before becoming a juror in this case.

"A. If the facts were so presented I definitely could change my mind.

"Q. Would you say you could enter the jury box presuming him to be innocent? [467 U.S. 1025, 1049]  

"A. It would be rather difficult for me to answer.

"Q. Can you enter the jury box with an open mind prepared to find your verdict on the evidence as presented at trial and the law . . . presented by the Judge?

"A. That I could do." 

"Q. Did I understand Mr. Hrin you would require some - you would . . . require evidence or something before you could change your opinion you now have?

"A. Definitely. If the facts show a difference from what I had originally - had been led to believe, I would definitely change my mind.

"Q. But until you're shown those facts, you would not change your mind - is that your position?

"A. Well - I have nothing else to go on.

"Q. I understand. Then the answer is yes - you would not change your mind until you were presented facts?

"A. Right, but I would enter it with an open mind.

"Q. In other words, you're saying that while facts were presented you would keep an open mind and after that you would feel free to change your mind?

"A. Definitely.

"Q. But you would not change your mind until the facts were presented?

"A. Right." Id., at 85a-86a.

First, even if we regard the relevant rulings as findings of fact, Hrin's testimony clearly is sufficient to overcome the presumption of correctness due a state court's factual findings. The state court's determination is not fairly supported by the record. Hrin not only  indicated that he had a previous opinion as to Yount's guilt or innocence, but also that he required evidence produced at trial to dispel that opinion. Further, he stated - pursuant to the prosecution's questioning - that "[i]t would be rather difficult . . . to answer" whether he could enter the jury box presuming Yount's innocence. Under these circumstances, I am convinced that the trial court improperly empaneled Hrin.

More important, however, I believe the Court's analysis regarding whether a juror has a disqualifying opinion is flawed. The Court begins by stating that such a question is one of historical fact. It then concludes, simply, that this factual finding is entitled to 28 U.S.C. 2254(d)'s presumption of correctness. Finally, it acknowledges that "[t]here are, of course, factual and legal questions to be considered in deciding whether a juror is qualified." 

Contrary to the Court, I believe that whether a juror has a disqualifying opinion is a mixed question of law and fact. The proper starting point of analysis is Reynolds v. United States. Before reaching its ultimate conclusion, the Court stated:

"The theory of law is that a juror who has formed an opinion cannot be impartial. Every opinion which he may entertain need not necessarily have this effect. In these days of newspaper enterprise and universal education, every case of public interest is almost, as a matter of necessity, brought to the attention of all the intelligent people in the vicinity, and scarcely any one can be found among the best fitted for jurors who has not read or heard of it, and who has not some impression or some opinion in respect to its merits. It is clear, therefore, that upon the trial of the issue of fact raised by a challenge for such cause the court will practically be called upon to determine whether the nature and strength of the opinion formed are such as in law necessarily to raise the presumption of partiality. The question thus presented is one of mixed law and fact, and to be tried, as far as the facts are concerned, like any other issue of that character, upon the evidence. The finding of the trial court upon that issue ought not to be set aside by a reviewing court, unless the error is manifest." 

Thus, Reynolds and Irvin teach that the question whether a juror has an opinion that disqualifies is a mixed one of law and fact. Therefore, one cannot apply the presumption of correctness found in 28 U.S.C. 2254(d) because the statutory language by definition applies only to the factual determinations of state courts. Applying the proper analytical framework, I believe that Hrin's testimony clearly raised a presumption of partiality. Therefore, the trial judge committed manifest error by improperly empaneling Hrin.

There is a special reason to require independent review in a case that arouses the passions of the local community in which an elected judge is required to preside. Unlike an appointed federal judge with life tenure, an elected judge has reason to be concerned about the community's reaction to his disposition of highly publicized cases. Even in the federal judiciary, some Circuits have determined that it is sound practice to have the retrial of a case assigned to a different judge than the one whose erroneous ruling made another trial necessary; for though the risk that a judge will subconsciously strive to vindicate the result reached at the first trial may be remote, as long as human beings preside at trials, that possibility cannot be ignored entirely.