JUDGES: Fairchild, Cummings and Pell, Circuit Judges. Pell, Circuit Judge (dissenting in part, concurring in part).
FAIRCHILD, Circuit Judge.
These are appeals from convictions of violation of the 1968 federal
Anti-riot Act. The charges arose out of events in Chicago during the
last week of August, 1968, during the national convention of the
Democratic
party. There were several violent encounters between the city police
and
other persons in the streets and parks. The degree of responsibility of
the five present appellants and the intent with which they acted are
the
focal issues.
The appellants are David Dellinger, Rennie Davis, Tom Hayden, Abbie
Hoffman, and Jerry Rubin. They, along with Bobby Seale, were charged
with
making certain speeches for the purposes of inciting, organizing,
promoting,
and encouraging a riot, after having traveled in interstate commerce to
Chicago with intent to do so. Codefendants Froines and Weiner were
charged
with teaching the use of an incendiary device in violation of another
federal
statute, and all eight were charged with conspiracy among themselves
and
with others to commit offenses under these statutes. All eight stood
trial, except that a mistrial was declared, during the trial, as to Mr.
Seale. The appellants were each convicted on the respective substantive
counts.
Froines and Weiner were acquitted on the substantive count against
them,
and they and appellants were acquitted on the conspiracy count....
III. VALIDITY OF INDICTMENT: JURY SELECTION.
Defendants attack the use of lists of voters (registered or actual) as the source from which names in the master jury wheel are, in effect, randomly drawn, arguing that this "results in the disproportionate exclusion of blacks, the mobile, youth and the politically alienated, as these classes are most likely to be members of the disenfranchised populace."
The indictment was returned after December 22, 1968, the effective
date
of the Jury Selection and Service Act of 1968, 28 U.S.C. §§
1861-71.
The grand jury had been empaneled before the effective date, at a time,
however, when voter registration lists were the source of 97% of the
names
of prospective jurors.....
It would follow that if there are attitudes relevant to the grand jury function which are characteristic of the under-represented or excluded age groups and different from those characteristic of the older age groups, exclusive use of voter lists as the source of random selection will make it less probable that those attitudes will be represented, or proportionally represented, on any particular grand jury. And there are many attitudes toward life and government in which it is commonly thought that younger people generally differ from older people.
Feasibility makes reliance on voter lists attractive. They contain a large if not precisely perfect sample of the qualified residents of an area, reflecting all the varying attitudes relevant to the grand jury function which such residents hold. Among persons qualified to vote, and absent discriminatory practices in administering the election system, not demonstrated here, the voter list is open as a matter of choice. The choice of the voter list as the source of names for jury selection is surely not invidious discrimination, except where the list itself reflects discriminatory practices.
We view the under-representation on voter lists of younger residents, and thus of any relevant attitudes which may be more prevalent among younger than older residents, as reason why it is desirable to seek feasible ways to supplement the voter list, but we are not prepared to say that the use of the voter list per se results in distortion of a perfect cross section sufficient to render an indictment constitutionally invalid.
IV. VOIR DIRE EXAMINATION.
One of the paths to the impartial jury guaranteed by the sixth
amendment
is the voir dire examination. Defendants seek reversal on the ground
that
the voir dire examination was inadequate. This claim has two branches.
The first is that the voir dire was so "perfunctory" with respect to
attitude
that it failed to provide a basis for defendants' challenges, both for
cause and peremptory. The second is that the court similarly failed to
inquire about any effect of pretrial publicity.
A. Juror Attitudes.
The voir dire examination took a little over a day. Pursuant to Rule 24(a) F.R.Cr.P., the district judge conducted the examination, after having solicited proposed questions from the parties. He asked the entire group of veniremen the following questions: whether the prospective jurors were acquainted with employees of the FBI, or of the Justice Department; whether they were acquainted with defendants, their counsel, or their associates; whether they could agree to follow the law as given to them; whether they could keep an open mind until time to reach a verdict; whether they could treat the testimony of a government agent the same as that of any other witness; whether prior jury service would prevent them from being impartial; and whether there was any reason they could not be fair and impartial jurors in this case. Fifty-six veniremen stated without explanation that they could not be impartial and were excused by agreement of the parties. Two others who said they could not be impartial for a particular reason were also excused.
The jury box was filled and the court questioned the first 12 individually. The court asked standard questions, primarily relating to marital and family status, occupation of prospective juror and spouse, employer and length of employment of prospective juror and spouse, number of children, their schools and occupations.
Two veniremen who said they worked for the federal government were asked whether being a government employee would influence their judgment. Another was asked, "Do you feel that the fact that your father is a member of the Chicago Police Force and has been for many years would affect your judgment as a juror if you were selected in this case?" All said they could still be impartial.
After interviewing each of these first 12, the court inquired of the group whether any had close relatives or friends who were employed by any law enforcement agency or other agency of the local, state or federal government. When five answered yes, the court asked each whether this would influence his judgment. All answered that it would not. The court did not ask this question of the succeeding veniremen who entered the jury box.
Defense counsel repeated defendants' request that the judge ask the questions they had submitted. The court responded, "I have reached the conclusion that those I haven't asked are not germane to the issues presented here by the indictment and the pleas of not guilty thereto."
The jury was selected after 24 persons had been individually
questioned,
the defense had exercised 10 of their 17 peremptory challenges, and
the government two. Appellants accepted the tendered jury but
"under
the greatest of protest" because the court had not asked questions they
considered necessary for fully exercising their challenges.
We start with the exclusion of jurors for cause, where actual bias is admitted or presumed. The Supreme Court has said that ". . . the trial court has a serious duty to determine the question of actual bias" and that "all persons otherwise qualified for jury service are subject to examination as to actual bias." Jury service by a person with actual bias in a particular case would violate the right to an impartial jury.
Subsidiary to challenge for cause is the peremptory challenge where bias is suspected or implied. It is exercised "on grounds normally thought irrelevant to legal proceedings" such as "the race, religion, nationality, occupation or affiliations of people summoned for jury duty," appearance, association, and the like, and it is "exercised without a reason stated, without inquiry and without being subject to the court's control."
The government argues that the court is obligated to inquire only
into
matters that would disqualify the juror for cause, and that the court's
first group of questions were adequate to produce disclosure of any
relevant
prejudice. We disagree. The government's position must rest upon an
assumption
that a general question to the group whether there is any reason they
could
not be fair and impartial can be relied on to produce a disclosure of
any
disqualifying state of mind. We do not believe that a prospective juror
is so alert to his own prejudices. Thus it is essential to explore the
backgrounds and attitudes of the jurors to some extent in order to
discover
actual bias, or cause.
If this right is not to be an empty one, the defendants must, upon request, be permitted sufficient inquiry into the background and attitudes of the jurors to enable them to exercise intelligently their peremptory challenges.
The government is correct that collateral or unrelated issues should
not be raised. But
this does not mean that all questions must relate directly to the
indictment
or pleas in the case. Some questions may appear tangential to the trial
but are actually so integral to the citizen juror's view of the case,
especially
one with publicly controversial issues, that they must be explored. For
example, this court acknowledged the right of a
defendant
of the Jehovah's Witness faith to a limited inquiry into the jurors'
prejudice
against Jehovah's Witnesses, even though his religious faith was not an
issue before the court. Similarly, in United States v. Clancy (7th
Cir., 1960), a case in which the defendants were
tried
for evasion of wagering taxes, we found no error in the district
court's
refusal to ask questions tendered by defendants, but we noted that the
trial court had substituted two questions "designed to uncover
prejudice
against gamblers and religious scruples against gambling." At a
minimum,
when requested by counsel, inquiry must be made into matters where the
likelihood of prejudice is so great that not to inquire would risk
failure
in assembling an impartial jury.
In evaluating this topic, it is important to recall the time when this trial occurred, and to recognize that the division in public attitudes toward the Vietnam war has changed and is changing still. The extent of unpopularity of the war in 1972, when this opinion is written, is not a fair index of the probable opinions on that subject in a cross section selected in September, 1969. Perspective is important. These defendants' plans for activities in Chicago in August, 1968 were first formed when President Johnson was expected to be a candidate to succeed himself. He withdrew March 31, 1968. The 1968 candidacies of Senators Eugene McCarthy and Robert Kennedy, the latter assassinated in June, 1968, were associated with anti-war sentiment. Further crystallization of anti-war sentiment is associated with the Cambodian venture and the Kent State killings, both in the spring of 1970. These episodes had not yet occurred when the jury was selected for this trial in September, 1969. We have no doubt that defendants brought to trial in 1969 upon charges that their anti-war activities were carried beyond constitutional protection were entitled to a testing of their jurors for biased attitudes on this subject.
Perhaps secondary, but significant, were the conflicts of values represented by the so-called youth culture -- hippies, yippies and freaks -- in contrast with the more traditional values of the vast majority of the community, presumably including most citizens summoned for jury service. Again, we are not unaware that many otherwise qualified members of the community could not be impartial toward, and in fact are often offended by, persons who wear long hair, beards, and bizarre clothing and who seem to avoid the burdens and responsibilities of regular employment. Several defendants would exemplify this conflict.
A similar conflict of values was symbolized in the confrontation between the city police and the demonstrators. A juror's basic sympathies with the actors in these events could easily impair his ability to consider alternative views of the case as presented in court. A venireman's relationship with law enforcement officers would be an important factor to be inquired about in evaluating his ability to be an impartial juror.
In our view, some minimal inquiry into at least these three basic
areas
was essential to a fair trial of this extraordinary case, at least when
defendants requested such inquiry. We have pointed out the inadequacy
of
a general question in testing a juror's possible prejudice in a
specific
area where it may well exist.
Comparison of the questions the court did ask will illustrate our point. The district court asked approximately ten general questions of the entire venire, which appear to have probed attitudes and associations, answers to which could have led to a challenge for cause in any given case. Many veniremen were dismissed as a result of answers to those questions. The more specific questions to individual jurors touched primarily family and employment status, with an occasional question whether a particular fact, primarily government employment, would prevent the persons from being impartial. By and large, they were neutral questions, the answers to which were not probative of actual or suspected prejudice.
The only question that could be said to relate peculiarly to the case before the court was the one addressed to the first 12 interviewed:
"I would ask each and every one of the prospective jurors in the jury box . . . whether you have any close relatives or friends who are employed by any law enforcement agency or other agency of the local, State or Federal Government."
Of those who responded affirmatively, the court asked whether that would influence their judgment, and all answered that it would not. But since this was not asked again, only four of those who served on the jury were subjected to this inquiry.
However satisfactory this limited examination might be in some
trials, under the circumstances of this case, the court's severe
restriction
of the voir dire may well have curtailed defendants' challenges for
cause
and failed to provide them with reasonable guidance in exercising
peremptory
challenges.
Defense counsel submitted a list of 44 questions. Some raised inappropriate subjects of inquiry and few were properly phrased even where the subject was appropriate. Some of the questions, however, would have elicited a prospective juror's attitude toward dissent, and public protest against the Vietnam war; toward long hair, beards, unorthodox clothing, and life styles differing from his own; and toward policemen and law enforcement.
We do not suggest that the court was obligated to ask all the often
propagandistic questions in the form submitted by defendants. But their
request raised a judicial duty "to do what was reasonably practicable
to
enable the accused to have the benefit of the right of peremptory
challenge
or to prevent unfairness in the trial."
B. Pretrial Publicity.
The disorders from which this case arose generated world-wide publicity. There was frequent and continuing local press coverage....In July and August, the media carried copious accounts of the security measures being taken in anticipation of violent demonstrations, for example, installation of barbed wire fences near the Amphitheatre, activation of the national guard, and provision of special court accommodations for an overflow of arrestees. Defendants Davis, Dellinger, Hayden, Hoffman and Rubin, again, were identified as leaders of various groups at which the security measures were directed.
Publicity peaked during convention week. The media published all shades of opinion, ranging from those which blamed the violence on "terrorists" and "outside agitators," to those blaming it on the city administration's "gestapo tactics." A substantial part of the evidence at trial consisted of news films, parts of which had been shown on television at the time of the events in August, 1968....
On August 27, 1969, defendants again moved for continuance because of contemporaneous publicity concerning defendant Seale's arrest. In denying the latter motion the court said that a careful voir dire examination was the proper procedure for safeguarding against prejudicial publicity.
In anticipation of the publicity issue in the voir dire defendants
moved
for nine additional peremptory challenges for each defendant and
for
questioning each venireman out of the presence of the others. Both
requests were denied and the examination took place as described in
Part
A above.
"I ask you, ladies and gentlemen of the jury, whether there is any reason you can think of now, that would lead you to feel that if you are selected by the lawyers as jurors in this case, you could not be fair and impartial in this case, giving the United States of America, Mr. David T. Dellinger, Mr. Rennard C. Davis, Mr. Thomas E. Hayden, Mr. Abbott H. Hoffman, Mr. Jerry C. Rubin, Mr. Lee Weiner, Mr. John R. Froines and Mr. Bobby G. Seale a fair and impartial trial?"Defendants claim that the district court breached its duty to protect them from prejudice by reason of pretrial publicity. They claim error in the voir dire as well as in the court's failure to grant a continuance to protect against prejudicial publicity. They maintain that the general question on voir dire of whether there was any reason the jurors could not be impartial was insufficient to probe the pretrial publicity issue, and that combined with the denial of their various motions, defendants received no protection from "the barrage of prejudicial pretrial publicity" that surrounded this case and the events from which it arose.
The government argues that the general impartiality question was adequate to evoke the response of persons who had formed an opinion of the case as a result of pretrial publicity. This method also prevented the veniremen from being "re-infected" with the publicity by stirring up their memories of these events in the presence of one another.
Even if the voir dire might have been handled differently, the
government
argues that defendants waived the issue. They point to defendants'
failure
to ask for a continuance on the eve of trial, or to move for a change
of
venue. Further, at the impaneling of the jury, defendants failed to
submit
proposed voir dire questions relating to publicity, declined to
exercise
all their peremptory challenges, and did not request inquiry into
pretrial
publicity until after the government had tendered the panel, which the
government says was too late. Government counsel interpret this conduct
as a "nefarious attempt to inject error into the record." Or at least,
they argue, the court has no duty to concern itself with pretrial
publicity
if the parties do not request it, so defendants must accept the
unfavorable
consequences of their chosen course of action.
Taking first the question of whether defendants waived this issue, we reject the government's view. Since the district court had denied several motions for continuance, two of which related to pretrial publicity, a motion for continuance on the eve of trial may well have been futile, and failure to make it should not prejudice defendants in seeking the protection which would be afforded by an adequate voir dire. The same should be true with respect to their election not to seek a change of venue.
Further, we can not accept the argument that the failure to exercise
all peremptory challenges precludes a finding that the voir dire was
inadequate
in the area of publicity. The less defendants knew about the jurors'
impressions
from and reactions to what they had read, the less basis they had for
exercising
their quota of challenges. United States v. Shaffer, is readily
distinguishable,
most obviously because in Shaffer the veniremen were
specifically
questioned regarding pretrial publicity and defendants' failure to
exercise
peremptory challenges indicated acceptance of the jurors in spite of
prior
knowledge of the case.
"I was saying the proper procedure to safeguard against prejudicial publicity is to carefully examine prospective jurors on voir dire and I assure counsel for all parties that my voir dire will not only be comprehensive in itself but . . . I invite counsel for all defendants and counsel for the government to submit in writing suggested questions to be put to the veniremen. . . .
"Voir dire is an effective and practical method of resolving on a factual basis the otherwise debatable speculative question whether a fair and impartial jury can be selected. Upon the voir dire, it can be determined whether prospective jurors read any articles dealing with these defendants, and, if so, whether these prospective jurors could remain impartial. . . . ."
This assurance may well have lulled defense counsel into omission of questions of their own on this subject. Even if the court was not required to go into the subject in the absence of a request, albeit recognizing its importance, we see no reason why the court could not have reopened voir dire for this purpose when the matter was brought to its attention. Indeed, the court's stated reason for denying the motion was not untimeliness, but rather that it considered the subject to have been covered....
These cases demonstrate the danger that widespread publicity about highly dramatic events will render prospective jurors incapable of impartial consideration of the evidence. We think it must follow that where pretrial publicity is of a character and extent to raise a real probability that veniremen have heard and formed opinions about the events relevant to a case, and at least where, as here, the defense has brought the pretrial publicity to the court's attention and requested voir dire inquiry, the court must make inquiry adequate to determine whether anyone has read or heard about the facts, and, if so, what the impact has been on his ability to serve as an impartial juror....We conclude that the failure to inquire into the effect of pretrial
publicity upon the jurors was error.
V. COMMUNICATIONS BY THE TRIAL JUDGE AND MARSHAL WITH THE DELIBERATING
JURY.
Several months after the verdict defendants discovered through a magazine article about the jury in this case that there had been communications between the district judge and jury during its deliberations without knowledge of counsel. Defendants then asked this court for a hearing at which the jurors and the deputy marshals who had been in charge of the jury during its deliberations could be interviewed regarding external pressures on the jury.
This court remanded for a hearing in district court to record the facts of such communications, if any, and any communications by officers in charge of the jury which may arguably have interfered with the jurors' exercise of impartial judgment. Our order also provided that "the district judge may if he desires incorporate into the record his own recollections of the events relating to such communications, if any."
A hearing was held. Despite inevitable differences of memory because of elapsed time (February to November) the testimony of the jurors and marshals and the supplemental statement of the judge verified the report that communications had occurred. There appear to have been at least one, and probably two, notes to the judge that the jurors were unable to agree on a verdict and one note asking for "transcripts," apparently of speeches made by one or more defendants....
There was also testimony to support defendants' allegation that a marshal volunteered comments to the jury during its deliberations. Five jurors testified that they remembered the marshal saying something to the effect of, "The judge can keep you here as long as he wants....."Defendants argue that the judge committed error by failing to make a record of the exchanges between the judge and jury, as well as in responding without affording counsel an opportunity to participate in formulating a response. They also argue that the marshal's remarks were an interference with the deliberations that deprived them of an impartial jury....
Under the circumstances related, we are unable to find with certainty that these out of court communications were harmless, and therefore conclude they are grounds for reversal....