Mu’Min v. Virginia – Oral Argument – February 20, 1991

Media for Mu’Min v. Virginia

Audio Transcription for Opinion Announcement – May 30, 1991 in Mu’Min v. Virginia

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William H. Rehnquist:

We’ll hear next in case No. 90-5193, Dawud Majid Mu’Min v. Virginia.

Mr. Blume?

Let’s move along, please, at the counsel table.

We have another case.

You may proceed, Mr. Blume.

John H. Blume:

Thank you, Mr. Chief Justice, and may it please the Court:

This case involves the question whether, in a capital case, involving pervasive, prejudicial pretrial publicity, which a majority of the potential jurors have been exposed to, may a trial judge prohibit any inquiry whatsoever regarding what the jurors know.

In answering that question, the pertinent facts in Mr. Mu’Min’s case need to be briefly reviewed.

He was charged in the fall of 1988 with capital murder.

At that time he was serving a 48-year sentence for murder in the Virginia Department of Corrections.

The case drew substantial press attention due to the nature of the crime and its unusual historical context.

The articles, as the dissenting justices of the Virginia Supreme Court noted, were very negative in their tone and their content.

They included reports that Mr. Mu’Min had confessed to the murder; that a rape was involved in this crime; the details of his 1973 murder conviction, including the fact that the death penalty was not an available punishment due to this Court’s decision in Furman; Mr. Mu’Min’s juvenile, criminal, prison and parole records as well as a number of other bad acts.

Furthermore, this case became part of the then national debate about the laxity of the correction system.

There were articles which indicated that all public officials associated with this crime should be fired as well as stories comparing Mr. Mu’Min’s offense to a crime committed by the then infamous Willy Horton, and other crimes committed by Virginia prisoners.

This case became caught up in the themes of the Bush/Dukakis presidential campaign.

Politicians, candidates, and public officials, including the prosecutor in this case, used it as an example of all that was wrong with the criminal justice system.

Then Governor Baliles suspended the work release program with great media fanfare as a result of this offense.

The then Virginia Department of Transportation Secretary, Vivian Watt, made a public apology to the victim’s family and to the citizens of the county as a result of this crime.

As a result of this media coverage, counsel requested that certain voir dire questions be asked regarding the content of the information that the potential jurors had been exposed to.

The trial judge, however, refused to ask or permit any questions to this effect and only allowed several short questions regarding whether, in spite of the media accounts, the jurors could be impartial.

William H. Rehnquist:

He did allow questions as to whether they had seen media accounts?

John H. Blume:

Yes, he allowed one question which was, have you read anything about the case.

Then he allowed… then there were several follow-up questions asked which are specifically set forth in Rule 14(a) of the Virginia supreme court rules which were; would that information affect your impartiality, followed up by, do you believe that you can enter the jury box with an open mind and wait until the entire case is presented before reaching a fixed opinion as to Mr. Mu’Min’s guilt or innocence, and then he essentially asked that question… the same question again.

And that was the sole thrust of the–

William H. Rehnquist:

And what you saw was to interrogate the jurors who said they had seen something about what it was they had seen?

John H. Blume:

–What counsel sought to ask were several questions regarding what the jurors had seen about the case, yes.

The trial judge adhered to this decision–

Byron R. White:

Are there questions that… that counsel proposed to be asked in the record?

John H. Blume:

–Yes, they are–

Byron R. White:

Well–

John H. Blume:

–in the joint appendix in the first few pages, beginning at page–

Byron R. White:

–All right.

John H. Blume:

–2 are his proposed voir dire questions.

Byron R. White:

Fine.

John H. Blume:

The trial judge adhered to this decision despite the fact that when the jury was attempting to be selected that 16 of the 20-some original panel called acknowledged that they had read about the case.

In fact, 8 of 12 jurors who ultimately convicted Mr. Mu’Min of murder and sentenced him to death had read stories in the press, although we have no idea what they had read.

Anthony M. Kennedy:

Was that disclosed by interviewing the jurors after the trial?

John H. Blume:

What… which ones had read about the case?

Anthony M. Kennedy:

Yes.

John H. Blume:

No, the judge said–

Anthony M. Kennedy:

This is just based on what was… what were the responses to the questions asked by the judge on voir dire?

John H. Blume:

–Yes, Justice Kennedy.

The judge said, has anyone acquired any information about the account… about the case to the news accounts?

The jurors raised their hand.

They noted who they were, and then he asked these several follow-up questions, so you had an idea of who it was based upon that.

It’s in the transcript… the record.

It’s also in the joint appendix.

Byron R. White:

Was there a motion to change venue in this case?

John H. Blume:

Yes, Your Honor.

The motion was made several times.

It was made pretrial.

The judge said it’s premature.

That was when a number of these articles were brought to his attention.

The judge denied the motion, said we’ll wait and see what happens during the jury selection process.

However, he also made several remarks there which I think are factors that need to be considered.

He said that it’s my opinion if you can get a fair and impartial jury in this county… I’ve heard it said, you know, that with approval, you can get an impartial jury here for anything if you want to.

And made several remarks like that.

Then there was… during the jury selection process… the jurors indicated that they had… these jurors indicated that they had read about the case.

Counsel moved to ask the questions.

John H. Blume:

He then asked that all the jurors who had read about the case be excused for cause.

That was denied.

He then renewed his motion for a change of venue.

Byron R. White:

Do you think that… is part of your claim that the publicity was so pervasive that bias should automatically be presumed?

John H. Blume:

No.

Mr. Mu’Min does not contend that this is a Irvin v. Dowd presumed prejudice case.

I think the rule Mr. Mu’Min seeks is really more modest than that.

This Court has essentially gone further than needs to be gone here and has adopted a rule, as in Irvin, that under some circumstances a trial… a juror’s assertions of impartiality can be, and in fact must be, disregarded.

William H. Rehnquist:

Well, there’s not a whole lot left of Irvin after Murphy against Florida and Patton against Yount.

John H. Blume:

There… well, the significant thing about those cases I believe is… in Patton v. Yount I think supports Mr. Mu’Min’s contention.

The presumption–

Sandra Day O’Connor:

Well, let’s… let’s talk about that precise point.

I thought that in Patton against Yount we said that the State trial court’s finding of impartiality could only be overturned from manifest error.

Now, I take it the rule you want us to adopt is one that says anytime there’s a lot of pretrial media coverage in a capital case, that absent content questions such as you proposed during voir dire that we’re going to be able to presume that that’s manifest error.

John H. Blume:

–No, Justice O’Connor, I don’t really believe that’s the rule that we seek.

Let me say this about Patton.

The Court gave the finding of impartiality… the presumption of correctness in Patton… and explicitly said this.

We do so because the trial judge allowed a searching voir dire which was specifically designed to elicit juror bias as a result of the publicity.

That simply did not happen here.

This Court has acknowledged in other cases that without an adequate voir dire, the judge’s findings of impartiality cannot… should be afforded due deference.

Sandra Day O’Connor:

Well, of course, we have to distinguish, don’t we, to some extent whether it is a proceeding arising in State court or one in Federal court.

Certainly, we can impose different requirements in Federal court than we would be required to impose by the due process clause for State court proceedings.

John H. Blume:

There is no question that this Court’s supervisory power over Federal court proceedings is broader.

But nevertheless, the Sixth Amendment right to a fair and impartial jury applies in State court criminal proceedings.

And it must–

Sandra Day O’Connor:

Yes, but you have here a determination by the trial court judge that the jurors who were impanelled were fair and impartial.

And he made that determination based on their responses to these generalized inquiries.

John H. Blume:

–He essentially… I think that the fair reading of what happened is he took their silence on faith.

The jurors could have been found to be impartial here by totally remaining silent.

All they had to do was not respond to the questions about regarding whether you could be fair and impartial.

John H. Blume:

They didn’t have to say a word.

Byron R. White:

Well, well, and there wasn’t… there wouldn’t be anything you could do about it under… in a Federal court if they just stayed silent.

You wouldn’t say, I insist on individual voir dire of every single member of the venire.

John H. Blume:

No, Mr. Mu’Min is not here seeking individual sequestered voir dire.

However, I think if the Sixth Amendment right to a fair and impartial jury is to mean anything, it must mean that when the publicity, taken as a whole, poses a constitutionally significant risk that the jurors may have been influenced by prejudicial, extraneous information, may have formed an opinion about the case, or be otherwise biased or partial as to guilt, or in a capital case, as to either guilt or the appropriate punishment, and one or more jurors have been exposed to that information, then some reasonable inquiry must be made.

I think more concretely in a case such as Mr. Mu’Min’s where the publicity contains information which is inadmissible or inaccurate, which is material, and which is likely to mislead or inflame the jury as to guilt or punishment, some inquiry must be permitted as to what the jurors know.

Again, this is a more modest rule than what has already been adopted by this Court in Irvin, which is that sometimes jurors’ assertions of impartiality must be disbelieved.

It involves a narrower… a narrower procedural rule than that adopted in Irvir but is nevertheless necessary to its implementation, because under some circumstances, as this Court has acknowledged, pretrial publicity can impinge upon a defendant’s right to a fair and impartial jury.

This Court has also acknowledged that a defendant’s protection against that infringement… his protection against the effects of negative pretrial publicity is his ability to demonstrate actual juror bias.

Without some fair opportunity of finding out in a case such as this what the jurors know, that right simply cannot be honored.

William H. Rehnquist:

Well, to follow that through, Mr. Blume.

What is… what is the goal of these further questions?

To exercise peremptories, to challenge for cause?

John H. Blume:

There’s certainly no question that any defense lawyer would want to know this for peremptories, but that is not the thrust of the concern.

The concern is without this information, the trial judge simply cannot fairly evaluate the jurors’ assertions of impartiality.

I think in–

William H. Rehnquist:

Well, so… but I mean, what specifically are you trying to develop?

Challenges for cause?

John H. Blume:

–I think it would be… there would be a number of things.

One, it would give the judge a basis to determine the jurors’ assertions of impartiolity.

William H. Rehnquist:

But I mean… but from your… from the point of view of the defendant?

John H. Blume:

It would be whether the juror was qualified to serve… or if he would be excused for cause.

William H. Rehnquist:

Excused for cause.

John H. Blume:

I think several things could come out.

One, a judge would have something to evaluate it against.

It is… it seems to me the essence of a judge’s duty to apply the law to the relevant facts.

Byron R. White:

Can you… do you suggest at all of these 58 or more questions have anything to do with publicity?

John H. Blume:

No, I don’t think Mr. Mu’Min’s position here… it’s actually only 4 or 5 that had to do with the media… depends on any one particular question.

Those questions or some reasonable substitutes needed to be asked.

They didn’t need to be asked by counsel–

Byron R. White:

I know, but the argument… how many of these questions have to do with the fundamental issue about whether or not a juror might be biased because of publicity?

John H. Blume:

–There were 3 or 4, I think, in the record that he sought to ask which were denied which had to do with that particular fact.

Byron R. White:

Well, you… this list is headed up, petitioner’s proposed voir dire questions.

John H. Blume:

Yes, that’s the entire list that he submitted… that he submitted in the case.

It’s only several, which I believe are on page 4 and 5.

There are several questions at the bottom of 4 and the top of 5 which are relevant to this.

Antonin Scalia:

Mr. Blume, what I don’t see about those questions… I mean, you know, what have you… the judge… it’s on pages I guess about 47 and on… of 48 and on of the… of the appendix… joint appendix.

The judge spent a good deal of time making sure that the jurors understood that whatever they had heard, they were not to take into account, and asking them whether they could impartially decide the case despite that.

And one of the members of the venire was excused on that basis, because he–

John H. Blume:

One of the numbers was.

Antonin Scalia:

–And he asked the question more than once.

He asked it several times, right?

John H. Blume:

He really only went into it one time.

There were a couple panels that were brought in where they weren’t sure whether those people had been asked.

They weren’t part of the original panel, so as new people were brought in, they were then asked the same question.

So it wasn’t the same people being questioned over and over about it.

Antonin Scalia:

Well, I see him as being rather persistent about it.

He says, I’ll read it… I’ll repeat it in a different fashion.

He goes into it several ways.

Now, explain to me how it would help being sure that they weren’t just feigning about being able to be impartial.

How would it have helped to have asked the particular questions that you wanted asked such as, what have you seen, read, or heard about this case?

I mean they admit that they’ve seen, read, and heard stuff.

Why would it help to know what it is that they’ve seen?

Why would that help you to determine whether they could be impartial?

John H. Blume:

Well, Justice Scalia, let me give a few concrete examples–

Antonin Scalia:

Now, that I’d like.

John H. Blume:

–of what I think would happen in a case.

Antonin Scalia:

Okay.

John H. Blume:

A potential juror called, what have you seen about the case… what have you read about the case?

Well, I read that Mr. Mu’Min has a long prior record.

John H. Blume:

Would you be able to put that out of your mind?

No.

Well, that juror… no judge would agree to that juror’s qualified.

Another example–

Antonin Scalia:

Excuse me, why would he answer no to that question, but answer yes to the more general question, has anything that you’ve heard or read about the case so made up your mind that you couldn’t put it out of your mind?

John H. Blume:

–Because I think that due to the nature of the prejudicial information, the way pretrial publicity prejudices someone… it’s important to understand what they know.

A juror may or may not know, for example, that they’re not supposed to consider an individual’s prior criminal record.

The straight question, would this affect your decision?

Without knowing it, they don’t know the legal standard.

This Court has recognized in numerous contexts that the juror cannot be the ultimate arbiter of their own impartiality.

They do not know the correct legal standard.

It’s… the Court has also recognized and I think it’s true that jurors… it’s difficult to determine juror bias, because they may not want to reveal it or they’ve–

William H. Rehnquist:

Well, the kind of–

John H. Blume:

–also may not know it.

William H. Rehnquist:

–The kind of voir dire you’re talking about with Justice Scalia, Mr. Blume, would have to be sequestered voir dire.

You don’t want a juror standing up in front of the whole panel and saying, well, I read that he’d been such and such, and such and such, and thereby infecting every other member of the panel.

John H. Blume:

Justice Rehnquist, I think the term individual–

William H. Rehnquist:

I’m the Chief Justice.

John H. Blume:

–I’m sorry, Chief Justice Rehnquist.

I think the term individual sequestered voir dire suggests an elaborateness of procedure that is not necessary.

There are a number of ways you could have done this and of course that would be free to the States to determine how to implement the constitutional right.

William H. Rehnquist:

Well, you… you would… you would have had to sequestered the individual being interrogated… the venire person being interrogated… from the rest of the potential jurors, would you not?

John H. Blume:

I think there are a number of ways you can do it.

William H. Rehnquist:

Can you answer my question yes or no?

John H. Blume:

I… yes.

I don’t know that you necessarily would.

Let me give you a way in which we do other things in criminal courts which might be relevant.

Often potential jurors are asked, have you ever been a victim of a crime.

Rather than take everyone out and individually sequester the juror, that person is asked to come to the bench and then the lawyers and the judge talk briefly at the bench and you find it out.

That’s a procedure that could be used.

John H. Blume:

Questionnaires is possibly another way to elicit what they know.

The point is that this does not lead inevitably to individual sequestered voir dire.

The States, you know, some States may decide to go that way, as they done with Turner.

This Court’s decision in Turner… they’ve developed different ways to try and implement that constitutional right.

The fact that they… that it may require some follow-up of it does not mean that the opposite conclusion should be drawn and that nothing should be allowed to be done.

Byron R. White:

Suppose that the judge had granted these questions 32 through 41, have you heard anything… where did you get it?

Have you heard any opinions about the case and so on?

And your final… 41, you say, can you disregard anything that might have been said and try this case on the law and the evidence you hear in this courtroom?

Now… and the juror says, yes.

And I suppose you can say, in order to get him off, if you don’t… you just have to say you don’t believe him.

And you ask the judge not to believe him.

John H. Blume:

Well, that, you know, may or may not happen, depending on what an individual juror says.

But that’s the kind of–

Byron R. White:

Well, I know but… but to get him… unless you’re going to challenge… unless you’re going to… well, I suppose it is… be possible that after the juror is… is… answers these questions, he may say he… no, I am biased.

John H. Blume:

–That is another phenomenon which this Court has recognized and which is documented in the literature.

Byron R. White:

But if he says… the juror says, no, I can try the case fairly–

John H. Blume:

Then the judge would one… he would have a number of facts against which to judge the juror’s assertions of impartiality and, two, the juror may change their mind.

But if the judge heard all that, found the juror to be impartial, then that finding would be entitled to the presumption of correctness, that it would be made on the basis of an adequate voir dire.

Without it… with the procedures utilized in this case, essentially the judge had to accept what the jurors said about their own impartiality on faith.

But again, it is a fundamental principle that jurors cannot be the final ultimate arbiters of their own impartiality.

William H. Rehnquist:

–He’s finally going to have to accept it one way or the other even at the end of this… of the series of questions you want to propose… the final question still is, in spite of what you’ve heard, can you be impartial?

The juror says, yes.

And the judge still makes a certain subjective assessment; is this juror tell the truth?

John H. Blume:

Yes, but then the judge has some facts, come… against which to apply the legal criteria.

I think the… an analogy might be a suppression hearing.

I don’t think that anybody would reasonably say that all… a lawyer can ask a police officer at a suppression hearing is, was the confession that you took from my client free and voluntary?

You’re entitled to get some information out.

That is the essence of a judge’s duty, to apply law to facts.

Without that, there is no way to have any idea what the jurors know.

Antonin Scalia:

Mr. Blume, one can presume facts.

Antonin Scalia:

Now, you’re arguing this doesn’t have to be done in all cases, but just when there’s been a lot of pretrial publicity.

And I assume this judge knew of the pretrial publicity.

He’d been advised of it.

Why couldn’t he say to himself, I will assume that all of these jurors know all of that pretrial publicity.

And even if each one came up and said to me, I read… you know, it’s a small town… it’s a local newspaper… I read every one of those articles.

Even if they knew all of it, I would still accept their word.

Now, why… couldn’t you say that?

John H. Blume:

First, in this record we have affirmative evidence that the trial judge did not believe that.

He said affirmatively in the record, that I think the media believe their stories are more widely read than they in fact are.

So we know in this record that is not what the judge thought.

Antonin Scalia:

Un-huh.

John H. Blume:

However, even then, assuming that the… you still would not have any way in which the juror talked about the information… that demeanor of evidence is relevant in this.

In fact, in this case on a less relevant issue, the judge excused a juror who said they were opposed to the Islamic faith, because he didn’t like the way they said it.

That’s the type of things judges do, but they do it by hearing at least a little bit about what the jurors know.

And in this context, in this type of prejudicial pretrial information, some idea of what the jurors know is necessary.

It’s a–

Antonin Scalia:

I don’t understand your first point.

Why is it that the judge’s assumption that the media think that more people read them than do… why does that preclude his having made this decision on the assumption that everybody read everything?

John H. Blume:

–No, I’m saying this particular judge said that, so we know that he didn’t think–

Antonin Scalia:

He didn’t believe everybody in fact read everything, but he could have made his judgment as to whether he would believe their assertion of impartiality on the assumption that they had all read everything.

Could he make that assumption?

John H. Blume:

–Well, we know that he didn’t do it here.

But assuming a judge did–

Antonin Scalia:

Well, wait… why do we know he didn’t do it here?

That’s what I’m asking you.

John H. Blume:

–It seems to me he–

Antonin Scalia:

Because he doesn’t believe… because he thinks the media think that they are more widely read than they in fact are.

John H. Blume:

–And that he said–

Antonin Scalia:

I’m saying that he assumed it, not… for purposes of his judgment… not that he believed it was true, but for purposes of whether he would believe the jury, he assumed that they had read all of the pretrial publicity.

Couldn’t he do that?

John H. Blume:

–He might do that, but again then you still would not have any idea of what… how a particular juror reacted to that.

If you knew the jurors knew all that, for example, then it seems to me a defendant would still be entitled to know how they reacted to it.

Let’s go to another example which would arise out of the type of publicity in this case.

The prosecutor in the 1973 case made statements to the press, which were reported, that Mr. Mu’Min got a 48-year sentence in ’73 because the death penalty was not available.

Let’s assume a juror knew that.

A fair question would seem to me to be, well, can you put that out of your mind when you’re determining Mr. Mu’Min’s punishment?

A juror may say, no, I feel… that would be tough for me.

I feel like he beat the death penalty on a legal technicality in ’73 and should be sentenced to death now.

That would be possibly a logical follow-up to having some idea of what the jurors know.

This is a different type bias than race bias, than the race bias identified in Turner which is a more generic type bias which is easy to focus a juror’s attention on.

The bias that results from pretrial publicity is necessarily more fact specific.

It depends on what the media accounts say.

And this Court has acknowledged that.

It said that the extent and the tone of publicity can affect a juror’s ability to be impartial.

So you have to have some fair opportunity in a case with this pervasiveness of publicity to… to at least find out what the jurors know and then to find out how that might affect them.

Sandra Day O’Connor:

Mr. Blume, in Turner against Murray on which you place some reliance, where the concern was the refusal or failure by the trial court to ask some voir dire questions about racial bias, the court left in place the conviction, did it not?

John H. Blume:

Yes, ma’am.

Sandra Day O’Connor:

And yet you think that we have to overturn your client’s conviction?

John H. Blume:

I think there are several reasons–

Sandra Day O’Connor:

How do you square that with what the Court did in Turner?

John H. Blume:

–I think there are several reasons, Justice O’Connor, that that’s true.

First, I think what the Court said in Turner was that the nature of the racial bias of that case would not have affected the guilt/innocence determination.

That is necessarily different, I think, than the type of information that was involved in this case which contained a number of facts which are not admitted at the guilt or innocence phase of this trial.

And essentially what the Court said in Turner, as I understand it, was not that the error was harmless as to Mr. Turner’s guilt, but that there was no Sixth Amendment violation as to his guilt.

I don’t think you can draw that same conclusion from the type of publicity in this case.

But nevertheless, drawing upon Turner, the violation in this case certainly cannot be harmless, assuming harmless error applies at the sentencing phase.

Anthony M. Kennedy:

What is the general rule that you’re proposing for our adoption… that in every case where there is the potential of prejudicial publicity, there must be a sufficient voir dire to enable attorneys to make a motion to excuse for cause?

John H. Blume:

The rule, as I tried to formulate it, was that if the publicity taken as a whole poses a constitutionally significant risk that the jurors may have been influenced by prejudicial, extraneous information, may have formed an opinion about the case, or may be otherwise biased or partial as to guilt, or in a capital case, as to guilt or punishment, and one or more jurors have read about the information, then some reasonable inquires must be permitted.

That’s simply in–

Anthony M. Kennedy:

Some… wait a minute… some reasonable inquires must be permitted… by the judge?

John H. Blume:

–The judge would be fine.

Mr. Mu’Min was not seeking the counsel to ask the questions himself.

If the judge had asked these questions, that would have been fine.

Some States the judge does voir dire and some States the lawyers do it.

Anthony M. Kennedy:

And how do you assess reasonableness… by whether or not it would give a review in court or counsel in the case an adequate basis to determine whether or not there’s cause for excusal?

John H. Blume:

I think first of whether it would give the judge a basis.

He again is the one who ultimately decide whether the juror is partial or not, and he has to have some facts.

I think certainly it would help for a review in court to have the information to know what the jurors knew and to be able to evaluate their assertions of impartiality against that standard.

It is, I admit, an area of line drawing, but nevertheless, as in many other areas, even in the race cases, Ristaino v. Ross, Rosales-Lopez v. The United States, the court has acknowledged that in cases involving interracial crimes, lines have to be drawn.

I think it would certainly be the same here.

But that doesn’t mean that the opposite line should be drawn and say that we’re never going to allow people to know what jurors know.

John Paul Stevens:

Well, why is there… I don’t understand this line drawing.

It’s in… I thought from your brief all you asked for was to find out what the… what the jurors know.

John H. Blume:

Yes, that–

John Paul Stevens:

It’s a simple line.

I don’t know why you even went with it through a case of massive publicity.

If a juror says he’s heard about the case, your position is he ought to be able to find out what he’s heard about it–

John H. Blume:

–I think–

John Paul Stevens:

–whether his wife wrote a letter to the governor about it or whatever it was.

Isn’t that your position?

You just want to know what the jurors know.

John H. Blume:

–Yes, I think under some circumstances if you can show that something about the information–

John Paul Stevens:

Well, they said they knew something about it.

John H. Blume:

–Yes, I think if you can show, though, the points… I think that if you can show that there’s something prejudicial about the information that the juror might know, you would need to know, you know, what that is.

Without it, the judge simply cannot determine whether a juror is impartial.

William H. Rehnquist:

And if… the U.S. Constitution requires that.

John H. Blume:

I think certainly this Court has recognized that, that the trial judge has an affirmative constitutional duty under the due process clause in the Sixth Amendment to ensure the right to a fair and impartial jury, and that under some circumstances that will require an adequate voir dire.

This Court has recognized that in numerous cases.

In a way I think this is the flip side of the freedom–

Antonin Scalia:

You say under some circumstances or as Justice Stevens says, under all circumstances?

Antonin Scalia:

I thought you were agreeing with him.

Now he’s saying under all circumstances… that you always have a right to know what all jurors know.

So in every case–

John H. Blume:

–I think there is a constitutional difference that can be drawn from this Court’s decisions about the particular ways in which pervasive, prejudicial publicity can affect a juror’s determination.

That is a distinction this Court has drawn and it seems to me to be a reasonable one… that jurors are likely to be influenced by what they read about the case.

In a way–

Anthony M. Kennedy:

–Well, suppose… suppose the court said that he’s not going allow any inquiries as to whether or not jurors have relatives in law enforcement.

And you were very concerned because it was a small community and there was a danger there might be a connection with law enforcement.

Now, would you accept that as a reasonable ruling by the trial court?

John H. Blume:

–It… you know, you would need to know the facts of the case.

How it related to it, and it may make a difference.

But the point here I think is again this Court specifically recognized–

Anthony M. Kennedy:

Well, but the question is… the question is why should it just be limited to pretrial publicity?

There are any number of disqualifications… disqualifying reasons not to sit a juror.

John H. Blume:

–That’s true, but I do think that from a constitutional vantage point, this Court has recognized in numerous decisions that pervasive, prejudicial publicity has a… can affect a juror’s ability to serve in a unique way.

And–

Anthony M. Kennedy:

More so than by being related to a witness or to someone whose engaged in the prosecution of the case?

John H. Blume:

–Well, those… excuse me… those questions were permitted in this case.

Anthony M. Kennedy:

Well, I assuming that they weren’t in order to test the standard that you’re proposing for our adoption.

John H. Blume:

There may be other circumstances which entitle constitutionally a defendant to ask certain questions.

I mean it may be… and that may be one of them.

But I do think that a reasonable line which this Court has already drawn in numerous cases is that publicity may affect jurors in unique ways.

And that seems to me to be a reasonable one.

In a way, this is the flip side of the freedom of the press cases.

I mean this Court and numerous State and federal courts have over the last years recognized and… the right of the press to cover criminal cases.

And they’ve invalidated a number of measures which restrict press access to those cases.

The court has also noted the increasing frequency with which the press covers criminal cases.

However, if that’s true, it seems to me to be also necessarily true that in order to protect a defendant’s right, especially a capital defendant’s right… someone whose life is at stake… his right to a fair and impartial jury… there are some circumstances such as the one in Mr. Mu’Min’s case which you’re entitled to have… find out what it is the jurors know.

Antonin Scalia:

Well, that doesn’t necessarily follow.

I mean the reason we may be concerned… might not the reason we’re concerned be that excessive publicity will cause numerous people like Mr. Syphrett, in this case, to have to eliminate himself from the venire, who otherwise wouldn’t be eliminated.

Antonin Scalia:

Isn’t that a good explanation?

John H. Blume:

It is an explanation, Justice Scalia.

But I do think this Court’s decisions also bring that principle into play, that due to the frequency with which the press reports things and the freedom that this Court has given in the coverage of criminal trials, and this Court has specifically recognized that in Gannett Company, Nebraska Press and numerous other decisions that a defendant has to have a right to find out… I mean to test the juror’s ability to serve.

William H. Rehnquist:

Thank you, Mr. Blume.

Mr. McLees, we’ll hear now from you.

This case was tried where… in Prince William County?

John H. McLees, Jr.:

Yes, it was, Your Honor.

William H. Rehnquist:

And what… the county seat is Manassas?

John H. McLees, Jr.:

That’s correct, Your Honor.

It was tried in Manassas.

William H. Rehnquist:

What’s the… what’s the approximate population of Prince William County?

A couple hundred thousand?

John H. McLees, Jr.:

Your Honor, in 1988 at the time this case… or at the time this publicity occurred, the approximate population was 194,700, Your Honor.

That’s not in the record, but it is in public records.

Mr. Chief Justice, may it please the Court:

Today, Dawud Mu’Min asks the Court to rule as a matter of constitutional law, as he argues in page 38 of his opening brief, that impartiality of a juror must be determined on the basis of information elicited by the court or counsel regarding the content of the publicity to which that juror has been exposed.

Byron R. White:

Not only that, but if he’s heard about it from any person.

John H. McLees, Jr.:

Yes, Your Honor, I think that the logic of his rule extends to inquiries of that sort.

Byron R. White:

Well, the question was asked, have you heard about it from any other persons?

John H. McLees, Jr.:

Yes, details of sources as well as content.

We contend that the adoption of such an inflexible rule as a matter of constitutional law is unnecessary in order to ensure the defendant a fair trial–

Sandra Day O’Connor:

What do you think the rule ought to be?

Apparently we have indicated in Irvin against Dowd and Patton against Yount that pretrial publicity in some cases may create some presumption of prejudice.

What do you think the rule is?

What are those cases?

John H. McLees, Jr.:

–I… Your Honor, I think the rule should be that first, content questioning of the sort we’re discussing here is a tool like any other.

It is a tool which the trial court may find helpful in picking a jury, but it is a tool which the trial court in his or her discretion may choose to use or not use in order to ensure that the–

Sandra Day O’Connor:

I don’t understand what rule you propose we adopt.

I’m… I maybe misunderstand, but I… what is it you’re saying is our rule?

John H. McLees, Jr.:

–That… the rule should be, Your Honor, that the use of content questioning is one of the many matters that is within the discretion of the trial court in conducting a voir dire, because there are a number of other objective factors which the court can consider.

Anthony M. Kennedy:

Well, what’s the more general rule that you proceed from?

Do you acknowledge that every trial judge has a duty to make inquiry with respect to the juror’s impartiality?

John H. McLees, Jr.:

Yes, Your Honor.

The–

Anthony M. Kennedy:

All right, and I take it that inquiry should be of reasonable scope to disclose likely areas of partiality.

John H. McLees, Jr.:

–Yes, Your Honor.

It–

Anthony M. Kennedy:

You would agree with that rule?

John H. McLees, Jr.:

–Yes, I would.

It must be sufficient to ensure that the defendant receives a fair trial before a fair tribunal.

Anthony M. Kennedy:

All right, well, if that’s true… if publicity is a particular problem in a particular case, then I assume that some questions must be directed toward publicity under your view?

John H. McLees, Jr.:

I think that it is… yes.

I think that in a high publicity case, that questioning should be addressed toward publicity.

Anthony M. Kennedy:

So all that we’re arguing about in this case is the reasonableness of the inquiry that was made?

John H. McLees, Jr.:

Well, we’re arguing, Your Honor… I think it’s more than whether the trial court abused its discretion in this case.

I think we’re arguing as… whether the court is required to include content questioning in that reasonable inquiry… whether the trial court has… without content questioning, whether the trial court can make a reliable determination as to whether the juror’s statement of impartiality can be–

Anthony M. Kennedy:

Well, I’ll assume petitioner’s counselor will say content questions are just one tool.

He should have done something more than what he did, and I offer content questions.

If you have some alternative, maybe that’s fine.

I suppose that’s what he’s going to tell us on rebuttal.

John H. McLees, Jr.:

–Well, Your Honor, what he has maintained both in his brief and in oral argument is that the error of the trial court here is in not asking any content questions and that content questions are a sine qua non of a determination that a juror can be believed when they say, I will not be affected in my judgment by the pretrial publicity.

Sandra Day O’Connor:

Well, do you take the position that regardless of the pretrial publicity and the particular circumstances that the generalized questions asked by the trial judge here would always be sufficient?

John H. McLees, Jr.:

No.

I don’t think that we can… that we can make a broad statement to that effect.

I think that–

Sandra Day O’Connor:

So would you acknowledge that sometimes content questions must be asked?

John H. McLees, Jr.:

–I don’t necessarily acknowledge there is any particular circumstance where this Court can draw a bright-line rule and say, here, as a matter of constitutional law, content questions are required.

Sandra Day O’Connor:

Do you think in some cases they would be constitutionally required?

John H. McLees, Jr.:

It would depend… yes, Justice O’Connor, yes.

It would depend–

Sandra Day O’Connor:

Yes.

And how do we draw that line?

How do we know when they have to be asked?

John H. McLees, Jr.:

–By applying the objective factors that this Court laid down in Murphy v. Florida for determining when there is reason to question the veracity or the reliability of a juror’s assurances that they can be impartial.

In this case, as Justice Scalia pointed out, the trial court could assume for the purpose of judgment, for the sake of argument, that every juror had read everything in the articles that were demonstrated in the record.

And–

John Paul Stevens:

Yes, but… but that doesn’t really cover every possible source of information that might have been available.

They might have attended a meeting of the American Legion which was formulating a resolution to send to the governor to improve correction practices.

And that might be where they heard about it.

John H. McLees, Jr.:

–That’s correct, Your Honor.

John Paul Stevens:

Well, then that might put a little different cast on the thing or they might have seen a copy of the letter that the spouse wrote to the governor protesting this outrage.

There are a lot of ways of getting information other than just what’s in the public press.

John H. McLees, Jr.:

That’s correct, Your Honor.

But the trial court–

John Paul Stevens:

Let me just ask you this hypothetical.

Supposing during the trial a juror came to the judge and said, there was some material about the case in the jury room which we all read, but we’re all satisfied we can still be impartial.

Do you think the judge would have any duty to say, what was the material?

John H. McLees, Jr.:

–I think that… yes, he would.

And I think–

John Paul Stevens:

A constitutional duty?

John H. McLees, Jr.:

–Yes, Your Honor.

John Paul Stevens:

And how is that case different from this?

John H. McLees, Jr.:

It’s different from this case because as… when… once the jury is impanelled and the jury is instructed, of course, that they are to decide the case based solely on the law and the evidence that comes in in the courtroom, then a breach of that instruction of the court… a breach of the juror’s duty by receiving some other sort of information… is an exception.

John Paul Stevens:

There is no other… it was there just lying on the table when they got there, and they couldn’t help but see it.

John H. McLees, Jr.:

Well, I’m not suggesting that it… it require that the juror be guilty of wrong doing, but that’s an exception to the rule.

The rule is the juror doesn’t receive any outside information.

The rule has been breached here because the juror saw this information lying on the table.

I think that… because that’s the exception to the rule, that merits specific inquiry, and also it merits specific inquiry because it’s so much more immediate and it’s a fact in the very bosom of the court, in the jury room, the–

John Paul Stevens:

Well, how do you know it’s more immediate?

You could… it may be that at breakfast that very morning, the voir dire… the venire person had gotten all the information.

John H. McLees, Jr.:

–Well–

John Paul Stevens:

You don’t even know that… you don’t know whether it was a newspaper a month ago or in a conversation with a group of friends the very day.

John H. McLees, Jr.:

–We… Justice Stevens, we never know necessarily everything that may affect a given individual who comes to court to sit on jury duty.

In any case, regardless of whether there’s pretrial publicity or not, a juror may have ridden up in the courthouse elevator with someone who made a comment about the bad person who was on trial that day.

But we can’t hope to ask everything specifically–

John Paul Stevens:

Well, the general question… do you know anything about the defendant or the facts of the case would bring that out, and then you say what do you know.

It’s a very routine way to do it.

John H. McLees, Jr.:

–But that… bringing that out is not going to help the trial judge necessarily determine whether he believes the juror can set that aside as the juror responds–

John Paul Stevens:

You don’t think it would help the trial judge to know what they had read?

John H. McLees, Jr.:

–I don’t think that the trial judge needs to know that in every case.

John Paul Stevens:

Maybe he doesn’t need to, but you don’t think it would help him at any… you don’t think there’s a distinction between the wide variety of ways in which people can get information about a case and the nature of the information?

John H. McLees, Jr.:

It may help in some cases, Justice Stevens.

That’s why I say in some cases a trial judge at his or her discretion may find it helpful to ask content questions.

I’m saying that it should not be required as an inflexible constitutional rule.

Antonin Scalia:

Only sometimes… I… as a constitutional rule.

I was disappointed to hear your response to Justice O’Connor, because I had… I had thought that one of the advantages of your position… perhaps the only advantage… was that it doesn’t get us into the very difficult line drawing questions that some of the colloquy with Mr. Blume was bringing out.

But now you tell me we’re into that anyway.

John H. McLees, Jr.:

I don’t–

Antonin Scalia:

Sometimes we’re going to have to say the Constitution does require it.

John H. McLees, Jr.:

–Well, I don’t think that the Court can draw a line to say when content questioning is required and when it is not.

Antonin Scalia:

But there is such a line?

There is one but we can’t draw it.

John H. McLees, Jr.:

It’s in the nature of a discretionary ruling that each case must be decided on its own facts and circumstances.

Antonin Scalia:

Then the Constitution never requires it.

It’s always discretionary.

John H. McLees, Jr.:

Well, I think that what the Court must do in order to… to determine whether there’s reason to question a juror’s statement that regardless of what I read or heard in the media or on the street, I can judge this case fairly and impartially, is evaluate the other factors this Court spelled out in Murphy v. Florida.

And specifically in Murphy, this Court said that the timing of the publicity should be considered.

In this case, the vast bulk of the publicity occurred more than 3 months before Mu’Min’s trial commenced.

In–

Thurgood Marshall:

Well, counsel, before the… what about a question like this.

Thurgood Marshall:

What do you know about this case and where did you get your information from, to each juror?

John H. McLees, Jr.:

–Well, Your Honor, that… that is essentially what Mu’Min sought to ask in this case.

Thurgood Marshall:

Not… not those words.

John H. McLees, Jr.:

Not in those words, but that’s the essence of what he sought to ask and–

Thurgood Marshall:

I don’t… I don’t think so.

I think he said it had gone just a step further.

John H. McLees, Jr.:

–Well, we submit that that is not constitutionally required.

Thurgood Marshall:

I mean suppose somebody told this juror that I am a member of the adriscatory process of the police department and I know that that sucker is guilty.

Shouldn’t the judge know that?

And my question would get that.

John H. McLees, Jr.:

Your Honor, the… if we… if we accept a rule that that question itself must be asked in order to uncover that… that specific item of bias that Your Honor referred to–

Thurgood Marshall:

Yes.

John H. McLees, Jr.:

–rather than the general questions which this Court asked… and by the way in… with respect to the publicity, the trial judge rephrased the question five different ways as far as whether they could impartial.

Thurgood Marshall:

My point… would you object to that phrase?

John H. McLees, Jr.:

Would I object to that question, Your Honor?

Thurgood Marshall:

Well, answer it the way I suggested it.

John H. McLees, Jr.:

I would certainly object to it being constitutionally required.

I don’t… I don’t believe it’s constitutionally required, because it assumes… to say that that is necessary in order to assess the jurors’ veracity when they say they can be impartial.

It assumes that you can’t… that a juror’s statements are inherently suspect and that’s one of the problems with Mu’Min’s theory is that it runs counter to one of the basic assumptions that our system of trial by jury is founded on.

This Court rejected the idea that a jury’s statements of impartiality are inherently suspect in Smith v. Phillips.

Even in the context of a postverdict hearing where a juror was accused of misconduct, in a sense, in developing a bias during the course of trial.

Thurgood Marshall:

Don’t the… doesn’t the court instruct the jury that you can’t use anything except what you hear in this courtroom?

John H. McLees, Jr.:

I’m sorry, Your Honor?

Thurgood Marshall:

Doesn’t the judge instruct the jury that you cannot use any information except what you hear in this courtroom?

John H. McLees, Jr.:

Yes, sir.

Thurgood Marshall:

Doesn’t he do that every time?

John H. McLees, Jr.:

Yes.

Thurgood Marshall:

Well, what’s the difference of what I asked?

I asked what did you learn about this case outside of this courtroom.

John H. McLees, Jr.:

Well, the difference is that by requiring that the court or counsel ask the juror to recount what they’ve heard or read or learned outside the courtroom, you assume or you imply that the juror’s statement that I haven’t heard anything… I don’t know anything about this case that I can’t put aside and be fair and impartial.

John H. McLees, Jr.:

The juror’s statement when he comes into court, as a matter of fact, that I have no opinion about this case, which all the jurors in the panel in this case said, except juror Syphrett, hold–

John Paul Stevens:

Yes, but that overlooks the possibility the juror may really believe that and they may have heard exactly as Justice Marshall posits that my neighbor is a… works for the police department and he told my wife this guy is definitely guilty.

I know enough not to pay any attention to that.

So… and this is his own thought process, and I’ll say I can’t.

But if you heard that as a judge you’d probably excuse that juror even though he sincerely says I think I can put it to one side.

John H. McLees, Jr.:

–Well, I think that as a trial judge in dealing with that situation, the judge needs to consider the demeanor of the juror.

John Paul Stevens:

Well, that’s right.

Well, isn’t the nature of bias and impartiality often the fact that the person does not recognize that he or she has the bias?

I mean, it’s not just active animosity toward a party that we’re interested in.

But it’s… are those assumptions that the juror is not maybe even sure of… that he holds until he’s examined about them or she’s examined about them with some specificity.

Or am I wrong about that?

John H. McLees, Jr.:

Well, of course, the jurors in this case were aware of what they had read or heard about the case.

It’s not a situation where a juror needs to be confronted with some unknown item of information about the case which might engender or trigger a bias that they’re not aware of with general question.

What they… the jurors in this case come into court aware of what they have read or heard and it’s just a question of whether the court is going to be required to make them reveal that.

As far as–

John Paul Stevens:

All that you’ve just said doesn’t become true, however, any more if the publicity is more recent than 3 months.

Now, when else doesn’t it become true?

John H. McLees, Jr.:

–I didn’t… I didn’t mean–

Antonin Scalia:

Well, I’m trying to find out what other… in what other cases Virginia has to individually question the jurors in isolation from the others.

You say if it’s very recent publicity, the court would have had to do it.

John H. McLees, Jr.:

–No, Your Honor.

I said–

Antonin Scalia:

No?

I thought that’s what you said.

–the recency of the publicity if one of many factors that the court should consider.

And must consider under the Constitution, right?

John H. McLees, Jr.:

–In determining whether the court has reason to doubt a juror’s assurances of impartiality.

Antonin Scalia:

So we’re just going to have to look at it case by case and decide whether the Constitution requires it or not?

John H. McLees, Jr.:

Not the Supreme Court, Your Honor.

Trial courts will, and trial courts do, as a matter of fact, as a–

Antonin Scalia:

And reviewing courts will review them on constitutional grounds.

What other factors?

How recent the publicity was.

What else is there?

John H. McLees, Jr.:

–The nature of the publicity itself… what it reflected in the publicity.

In this case, the publicity is factual in nature to the extent that there was outrage expressed.

It was expressed at the Virginia Department of Corrections, and Mu’Min’s counsel tried to turn that to his advantage in arguing in mitigation, putting the Department of Corrections on trial and taking the heat off his client.

Another factor that should be considered is the atmosphere of the community.

There was no demonstration in this case of a hostile community atmosphere.

This is a large, busy suburban community and they have other things on their mind besides this one very tragic case.

The Court should consider the trial atmosphere itself.

In this case, the trial atmosphere was impeccable.

The Court should consider the number of jurors in the voir dire process who express some kind of negative opinion about the defendant or about the case.

In this case, the only juror who expressed a negative opinion was juror Syphrett and he was excused for cause by the trial court without even giving the Commonwealth the opportunity to try to rehabilitate him.

Antonin Scalia:

I agree that the judge who’s conducting the trial should consider all those things in his discretion, but as I understand your argument, a reviewing court should consider all those things in deciding whether the Constitution has been violated by not conducting individual interrogation.

John H. McLees, Jr.:

Well, I think–

Antonin Scalia:

That’s the position you want us to enunciate.

John H. McLees, Jr.:

–Not exactly, Your Honor.

Our position is that an abuse of discretion may, in some conceivable cases, amount to a constitutional violation, but that in the normal… in the normal case that is not the case.

The other factors that are involved are the demeanor of the jurors during voir dire.

In this case, the trial judge was sensitive to the demeanor of the jurors.

That’s demonstrated by the voir dire of juror Haines, who gave all the right answers in black and white on the record, but the trial judge detected something in her demeanor that suggested she wasn’t being as candid as she might be and excused her for cause.

Anthony M. Kennedy:

Which indicates that some specific questions are helpful to the fact finder.

John H. McLees, Jr.:

That’s correct, Your Honor.

And many specific questions were asked in this case on factors where the trial judge in his discretion found that they were appropriate.

The trial court asked two questions addressing the racial aspects of the case.

They asked a question addressing the aspect of the case as a sexual crime.

They asked a question about jurors’ attitudes toward people of the Islamic faith.

And the jurors were candid and open.

They didn’t feel reticent in responding to these.

John H. McLees, Jr.:

We’ve got two jurors speaking up and saying they didn’t approve of the Islamic faith.

We’ve got Mr. Syphrett saying straight out that he can’t be fair.

We’ve got Ms. Deiotte saying that she thinks she can be fair, but you never really know until you test it.

And she was excused for cause, which does not appear in the joint appendix, but on page 329 of the appendix from the supreme court of Virginia, it shows that she was excused for cause.

Anthony M. Kennedy:

Could you answer a few brief questions about Virginia procedure?

Is it either the practice or permitted by statute to inquire of the jurors after the trial was over as to sources of bias?

Were the jurors in this case questioned by counsel?

John H. McLees, Jr.:

They… on the record, they were not.

I have–

Anthony M. Kennedy:

Was anything offered in postconviction proceedings to show that they had been questioned?

John H. McLees, Jr.:

–This is direct appeal, Your Honor.

There’s been no–

Anthony M. Kennedy:

There have been no… there have been no postconvictions?

John H. McLees, Jr.:

–No, no, sir.

There has been nothing.

Anthony M. Kennedy:

And the other question I have is… does the trial court always ask the questions?

John H. McLees, Jr.:

No.

The trial court always asks questions, but the trial court is required by law to permit counsel to ask questions also, and in fact, this case the trial court permitted counsel to ask extensive questions.

Anthony M. Kennedy:

To ask the questions directly… not just to submit the questions?

John H. McLees, Jr.:

Exactly.

Yes, sir.

Anthony M. Kennedy:

Thank you.

John H. McLees, Jr.:

In this case, the defense counsel asked many questions in panels of four and three and–

Byron R. White:

I know, but he wouldn’t let them to inquire specifically what they had read or seen?

John H. McLees, Jr.:

–No, Your Honor.

No, that’s the… that’s the controversy.

Byron R. White:

He cut that off.

John H. McLees, Jr.:

Yes, sir.

Now, although when the trial court found it necessary and–

Byron R. White:

Especially, he didn’t want… he didn’t want anybody asking what the… what the juror had heard from his or her spouse.

John H. McLees, Jr.:

–Well, he didn’t find it necessary to go into that in order to determine that he believed those jurors when they said they could be fair.

He… when the trial court found it helpful or necessary to go into content questioning, in this case he did so.

With juror Walters… now each of these jurors in panels of four was questioned by defense counsel about whether they had discussed the case with anyone… so they addressed not just, what have you read in the newspaper, but they knew who had or had not discussed the case which of course involved… would involve information that wasn’t in the–

Byron R. White:

How far do you allow him to go in that… when they said, yes, we have discussed it with somebody?

John H. McLees, Jr.:

–In one panel, several gentlemen indicated they discussed it with their wives when they’d read about it in the newspaper and the trial judge said, we don’t need to go into the content of that.

In another panel, Ms. Walters indicated… was the only one in another panel who indicated that she’d discussed it with someone.

She was a school crossing guard employed by the Prince William County police and she said she had discussed it with her lieutenant, who was her supervisor in her job.

And in that case, the trial court and defense counsel both inquired into the content of the conversation she’d had with her supervisor and at the conclusion of that examination, Mu’Min elected not to challenge Ms. Walters for cause and didn’t use any peremptory challenge against her either.

And in fact, Ms. Walters did sit and try this case.

In other panels, where… in one panel a juror indicated that he had discussed the case just casually and the judge didn’t feel it necessary in that situation to go into the content of his discussions.

In another panel, a woman said that she had discussed the case with several people and she was excused for cause for a different reason.

And in a final panel, juror Deiotte indicated that she had discussed the case with certain people.

Ms. Deiotte was employed in the news media and eventually she was excused for cause, because she… she said that she knew one of the witnesses in the case and she really felt that that might influence her impartiality.

Byron R. White:

Is she the one who had a paper to get out?

John H. McLees, Jr.:

Yes, sir.

At the conclusion of the small panel voir dire, Mu’Min did not renew his motion for change of venue, and we submit that this may be indicative that in his mind at that point, having concluded the entire voir dire, concerns about the impartiality of the jury were not uttermost in his mind.

Now, the assumption that is involved in Mu’Min’s position that you can’t trust what a juror says… if a juror says, I have no opinion about a case… is disproven by the kind of candor he shares–

David H. Souter:

Well, I don’t think it’s his position that you necessarily can never distrust… that you can never trust… a thing inherently distrustful.

His position is that you can’t assess it in fact, without knowing more than you… than this judge was willing to inquiry into.

John H. McLees, Jr.:

–Your Honor, our position is that jurors… I think the law is well established… is that jurors are presumed to be impartial and it is incumbent upon the defense to demonstrate partiality.

And in order to do that, one of the things that they must do is demonstrate some reason to… why the trial court should distrust a juror’s statement about whether or not they have an opinion in the case, and that simply was not done in this case.

The amicus brief suggests that jurors come into court eager to please the trial judge and eager to give the right answer and seem to be fair.

We suggest that jurors are real life people with real life problems of their own.

And they’re called into court at cubstantial inconvenience and with… to hear a grisly murder case for a week with the ultimate wrenching prospect of deciding whether an individual should live or die.

They don’t have a particular incentive to sit on jury duty.

Their practical incentives far counterbalance any kind of inclination they have to give some answer that theoretically the trial judge suggests; and in fact, the record in this case shows the trial judge didn’t suggest that he wanted the jurors to say they could be impartial.

In five different ways he gave them the opportunity.

He rephrased the question and gave them the opportunity to say that they could judge the case fairly… they could not judge the case fairly.

And as soon as one or more of them did, he excused them for cause.

We submit that the adoption of this rule would go farther than this Court gone in requiring voir dire questions in the past.

John H. McLees, Jr.:

In Turner v. Murray, in Ham v. South Carolina, where this Court has required specific types of voir dire questions, what the court has required is that the juror be confronted with a possible source of bias and asked to search their conscience and state whether they would be subject to that bias or not.

The question mandated by the court in Turner was the defendant, Willy Lloyd Turner, as a member of the Negro race.

The victim, Jack Smith, was a white Caucasian.

Will these facts prejudice you against Willy Lloyd Turner or affect your ability to render a fair and impartial verdict based solely on the evidence?

And the question mandaeed… the questions mandated in Ham v. South Carolina were similar.

What Mu’Min wants to do here is far more intrusive.

What he wants to do is search the juror’s memory for facts and then dispute the juror’s statements about the juror’s reaction to those facts.

That kind of intrusive inquiry has never been required by this Court and we submit that it should not be.

The effects if it were would be undesirable on the American jury trial system.

It would require individual voir dire in one method or another in every case to prevent other jurors from being exposed to this information that one juror may have that supposedly would be contaminatory.

There would be no principled way to restrict the inquiry to simply cases of pretrial publicity as Justice Stevens’ question I think brought out and as Mu’Min conceded at trial, the same logic would apply in other situations.

In death penalty qualification, if a prosecutor wants to probe a juror’s assurances that they can follow the law and consider imposing the death penalty–

John Paul Stevens:

Do you think it would make any difference if the juror had been in the store and seen it, but didn’t think that would affect his prejudice… seen what happened?

John H. McLees, Jr.:

–It may be something that the trial court would want to consider–

John Paul Stevens:

Whether or not the juror was actually a witness.

John H. McLees, Jr.:

–in deciding whether content questioning would be desireable or would be helpful in the case.

John Paul Stevens:

But not… you don’t have to… you’re not required to find out whether he saw the crime committed.

John H. McLees, Jr.:

Well–

John Paul Stevens:

That might be the source of one of these juror’s information for all we know.

Might have been in the store and watched the whole thing take place, but I can be fair because I know what happened.

John H. McLees, Jr.:

–Certainly the trial court in this case asked the jurors if they received information about the case from the news media or–

John Paul Stevens:

They’d say yes, they did, but I can–

John H. McLees, Jr.:

–The trial court asked if the juror had an opinion about the case.

And that is a crucial… I think that is a crucial aspect of voir dire… is determining if a juror has an opinion.

None of the jurors in this case indicated they even had an opinion about the case, much less an opinion that they could set aside… that they could not set aside and judge the case on law and the evidence, except for juror Syphrett who said he couldn’t be fair and he was excused.

So a crucial question is whether the juror has formed an opinion about the case.

If Mu’Min’s rule is adopted, it will apply to death penalty qualification.

The prosecutor will be able to explore the content of a juror’s religious beliefs about capital punishment in order to assess their veracity.

A defense attorney in examining a juror whose been a victim of a crime may be able to probe the juror… the content of the juror’s memories of the pain and fear and humiliation of their own crime in order to assess their ability to be fair.

In these and many other–

William H. Rehnquist:

–Thank you, Mr. McLees.

John H. McLees, Jr.:

–Thank you, Your Honor.

William H. Rehnquist:

Your time has expired.

The case is submitted.

The honorable court is now adjourned until Monday next at ten o’clock.