IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
No. 90-1348
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
CHRISTOPHER BARRY GREER, DANIEL ALVIS WOOD,
SEAN CHRISTIAN TARRANT, MICHAEL LEWIS LAWRENCE,
and JON LANCE JORDAN,
Defendants-Appellants.
__________________________
Appeals from the United States District Court
for the Northern District of Texas
__________________________
(July 30, 1992)
Before POLITZ, Chief Judge, GOLDBERG, KING, GARWOOD, JOLLY,
HIGGINBOTHAM, DAVIS, JONES, SMITH, DUHÉ, WIENER, BARKSDALE, EMILIO
M. GARZA, and DEMOSS, Circuit Judges.
PER CURIAM:
This case was taken en banc to review issues concerning jury
selection discussed in part II of the panel opinion. See United
States v. Greer, 939 F.2d 1076, 1084-86 (5th Cir.), vacated for
rehearing en banc, 948 F.2d 934 (5th Cir. 1991). Except as to
part II, we reinstate the panel opinion. As relates to the
issues in part II, the court unanimously holds that the district
court did not err in refusing to strike for cause all blacks,
Hispanics, and Jewish jurors. Otherwise, as a consequence of an
equally divided court the actions and decisions of the district
court, as discussed in part II, and the convictions are AFFIRMED
by operation of law.1
JERRY E. SMITH, Circuit Judge, with whom GOLDBERG, KING, DUHÉ,
WIENER, BARKSDALE, AND EMILIO M. GARZA, Circuit Judges, join,
would affirm the district court for the following reasons:
I.
At trial, the defendants requested that the court strike for
cause all black, Hispanic, and Jewish prospective jurors.2
Defendants also requested that all prospective jurors be asked
whether they are Jewish. The court refused both requests. We
have chosen to review en banc only the court's conduct of voir
dire.
The defendants contend that they were denied the right to a
fair and impartial jury. They maintain that the district court
erred in (1) not excluding all black, Hispanic, and Jewish
citizens for cause from the panel of prospective jurors because
they were intended victims of the alleged offenses; (2) failing
to examine potential jurors regarding racial and ethnic bias so
that defendants could exercise their peremptory challenges
intelligently; and (3) refusing to require Jewish prospective
jurors to identify themselves as such. We disagree with each of
1
"An affirmance by an equally divided court . . . has no precedential
value, see generally Hertz v. Woodman, 218 U.S. 205, 213-14, 30 S. Ct. 621,
622-23, 54 L. Ed. 101 (1910) . . . ." Lacy v. General Fin. Corp., 651 F.2d
1026, 1028 (5th Cir. Unit B July 1981).
2
For a full exposition of the facts, see the panel opinion in this case.
2
these contentions and conclude that the defendants were not
denied a fair and impartial jury.
A.
The district court correctly decided not to exclude for
cause all black, Hispanic, and Jewish citizens from the panel of
prospective jurors. The indictment charges defendants with
conspiring against black, Hispanic, and Jewish citizens of the
United States. The defendants argue that all black, Hispanic,
and Jewish persons should have been excluded from the jury
because they were the intended victims of the offense.
We are unwilling to hold that all members of the victims'
racial or religious class necessarily should be excluded in every
hate crimes case in which the classes are broadly described.3
Absent a showing of individual bias, a court does not abuse its
discretion when it refuses to exclude for cause an otherwise
qualified class of jurors. See Smith v. Phillips, 455 U.S. 209,
215-17 (1982). Indeed, in a factually similar case, the Fourth
Circuit upheld a district court's refusal to strike for cause all
prospective black jurors when the defendant was an alleged white
supremacist. Person v. Miller, 854 F.2d 656, 665 (4th Cir.
1988), cert. denied, 489 U.S. 1011 (1989). Instead, the court
3
The defendants argue that the indictment is framed in such a way as to
make all black, Hispanic, and Jewish citizens intended victims. Assuming,
arguendo, this reading of the indictment, we are not prepared to hold that
such a universal victim status constitutionally mandates the exclusion of all
potential jurors in those categories. Instead, the pertinent question is
whether the respective members of such a universally-described victim class
harbor any bias. That determination, in turn, is a prime function of voir
dire examination.
3
allowed each individual juror to be questioned for bias. Id.4
B.
The court adequately questioned the venire regarding
potential bias against the defendants.5 The district court has
broad discretion in determining how best to conduct voir dire and
in deciding whether to excuse a juror. Rosales-Lopez v. United
States, 451 U.S. 182, 189 (1981); Fed. R. Crim. P. 24(a). "We
grant broad discretion to the trial judge in making
determinations of impartiality and will not interfere with such
decisions absent a clear abuse of discretion." United States v.
Hinojosa, 958 F.2d 624, 631 (5th Cir. 1992) (citations omitted).
The test for determining whether a court has adequately
questioned prospective jurors regarding bias is whether "the
means employed to test impartiality have created a reasonable
assurance that prejudice would be discovered if present." United
States v. Saimiento-Rozo, 676 F.2d 146, 148 (5th Cir. 1982). A
court abuses its discretion when the scope of voir dire is
inadequate to discover bias and deprives the defendant of an
opportunity to make reasonable use of peremptory challenges. See
United States v. Brown, 799 F.2d 134, 136 (4th Cir. 1986).
4
See also In re City of Houston, 745 F.2d 925, 930 (5th Cir. 1984)
(where the judge in a class action suit is a member of the class, recusal is
not appropriate where the judge's interest is not "direct or immediate but
remote or contingent").
5
Although defendants characterize potential bias against them as "racial
bias," and the dissenting opinion makes repeated reference to "racial bias"
and "racial prejudice," see, e.g., slip op. at 9, 10, 11, 13, 15, 16, 17, the
defendants do not seriously contend that jurors would be prejudiced against
them because they were white. Therefore, the district court properly focused
on moral and ideological, not racial, bias.
4
Failure to question individual jurors about facts or experiences
that might have led to bias does not necessarily indicate that
voir dire was constitutionally insufficient. Mu'Min v. Virginia,
111 S. Ct. 1899, 1908 (1991).
The court in this instance adequately inquired into the
potential jurors' possible biases against the defendants. The
court used three methods to probe bias: an individual
questionnaire, group voir dire, and individual voir dire. An
examination of the court's methods show that the Saimiento-Rozo
standard was satisfied.
First, each prospective juror filled out a questionnaire
asking for information regarding, inter alia, his or her
occupation; his or her spouse's occupation; whether he or she
regularly attended "church, temple, or other religious services";
whether he or she held "any offices in a church, temple, or
religious organization" and, if so, what the office was;
membership in any fraternal, social, professional or public
service organizations; military service; and whether he or she
had "heard or read" anything about the vandalism of Jewish
properties, the incidents in the park, skinheads, or skinheads'
involvement in any of the incidents.
Next, the court conducted group voir dire. It explained the
indictment and the presumption of innocence to the venire panel
and asked whether the prospective jurors could follow the
instructions. Three persons answered that they had heard too
much about the case to abide by the presumption of innocence;
5
only two were identified in the transcript, both of whom
eventually were struck for cause. After a number of standard
questions, the court asked whether any person knew anyone in the
Hammerskins or was a member of a racial supremacist group.
The court then asked,
Should the evidence show that the Confederate
Hammerskins are a group which advocates white supremacy
and that the Defendants are members of such a group SQ
and I say should because you don't have any evidence
before you at this time SQ could you give each of the
Defendants the same presumption of innocence and the
same benefit of following only the evidence adduced in
court and the instructions or law that the Court gives
you without any kind of bias or prejudice or sympathy
or fear? [Emphasis added.]
Two jurors answered yes and eventually were struck for
cause. The court then asked,
The charges in the indictment, and I repeat again
that the indictment is just a charge and it is not
evidence of any kind, legend and substance [sic, allege
in substance?] that the Defendants acted to interfere
with the constitutional protected rights of other
persons because of their race or color or national
origin. The Government may put on evidence to
demonstrate the Defendants' racial beliefs. However, I
instruct you that the Defendants are not on trial for
their racial beliefs, whether you agree with those
beliefs or don't agree with those beliefs. Now, is
there anyone who could not follow that instruction?
[Emphasis added.]
[no response]
There is this second instruction. You can use
evidence of the beliefs of a Defendant to help decide
whether the Defendant may have acted or may have been
motivatedd [sic] to act in accordance with those
beliefs but you are here as jurors only to judge
matters under the Charge and not whether a Defendant
believed in such and such a way, had a belief. Whether
he acted is what you will be talking about. Anybody
who can't follow that sort of instruction? [Emphasis
added.]
6
[no response]
Finally, the court briefly questioned each of the fifty-
three prospective jurors individually.6 It asked what, if
anything, he or she had read or heard about the case. The court
also asked each juror whether he or she could be impartial and
could reach a decision based only upon the evidence in the case.
The individual questioning elicited admissions of bias. At
least thirteen persons expressed hesitation as to whether they
could be impartial. Several of these potential jurors expressed
grave misgivings regarding whether they could be fair and
variously referred to the defendants by such terms as "Nazis,"
"racists," "bigots," and "vandals." The responses provided
defendants with sufficient information to exercise their
peremptories intelligently; none of these persons served on the
jury. Further questioning directed at such bias would have been
only cumulative, and, while it might have been appropriate, it
was not constitutionally required.
C.
The court did not abuse its discretion in not requiring
Jewish veniremembers to identify themselves. The issue is
whether sufficient questions were asked to ferret out any bias,
not whether specific questions were asked. The voir dire and
6
Contrary to defense counsel's representation at en banc oral argument,
every veniremember who had not been struck for cause was questioned
individually. Accordingly, and contrary to the implication of the dissenting
opinion, slip op. at 6, the individual questioning was not limited to "each
individual juror who had answered yes on the questionnaire as to whether they
had read or heard any press reports about the case."
7
jury questionnaire constituted an adequate alternative and, as
discussed supra, provided defendants with the opportunity to make
reasonable use of their peremptory challenges.
Nor was the identification of the religion of the jurors
constitutionally mandated.7 This is so because "[t]o be
constitutionally compelled . . ., it is not enough that
. . . [particular] questions might be helpful [in assessing juror
bias or in exercising peremptory challenges]." Mu'Min, 111
S. Ct. at 1905 (1991) (state habeas corpus case) (citing Murphy
v. Florida, 421 U.S. 794, 799 (1975)).
In Mu'Min, the Supreme Court recently reiterated, id. at
1904, that a trial court "retains great latitude in deciding what
7
We do not address whether such a question would be constitutionally
permissible. Citing, inter alia, Edmonson v. Leesville Concrete Co., 111
S. Ct. 2077, and Batson v. Kentucky, 476 U.S. 79 (1986), the panel, 939 F.2d
at 1085, opined that the question regarding Jewish identification was consti-
tutionally proscribed. Confining ourselves to whether the questions that were
asked adequately protected the defendants (and thus to the question of whether
the question on Jewish status is constitutionally required), we do not reach
the issue of the applicability of Batson and Edmonson.
We note, however, that subsequent to en banc oral argument in this case,
the Supreme Court issued its opinion in Georgia v. McCollum, 60 U.S.L.W. 4574
(U.S. June 18, 1992). There, the Court, in accordance with the view taken by
the panel in this case, 939 F.2d 1086, and stridently opposed by the instant
defendants and amicus curiae, now has held squarely that the Batson rationale
applies to the exercise of peremptory strikes by defendants in criminal cases.
Id. at 4576. In emphasizing the requirement of eliminating "race stereotypes"
from the jury selection process, the Court noted that "[t]he need for public
confidence [in that process] is especially high in cases involving race-re-
lated crimes." Id.
In McCollum the Court also recognized "that denying a person participa-
tion in jury service on account of his race unconstitutionally discriminates
against the excluded juror. Id. (citing Strauder v. West Virginia, 100 U.S.
303, 308 (1880)). This calls into question the statement in the dissent that
"[t]his is a three-cornered play of prosecutor, judge, and defense counsel SQ
three players, not one." Slip op. at 21. To these three actors must be added
a fourth: the prospective juror who is subject to discrimination on some in-
vidious ground. We also conclude that Morgan v. Illinois, 112 S. Ct. 2222
(1992), decided only three days before McCollum and relied upon in the dis-
sent, has no direct bearing on the case sub judice, as it involves the narrow
question of whether, in a capital case, jurors must be asked whether they
"would automatically impose the death penalty upon conviction of the defen-
dant." Id.
8
questions should be asked on voir dire." Specifically as it
applies to the instant case, the Court observed the following:
Voir dire examination serves the dual purposes of
enabling the court to select an impartial jury and
assisting counsel in exercising peremptory challenges.
In [Aldridge v. United States, 283 U.S. 308, 51 S. Ct.
470, 75 L.Ed. 1054 (1931), and Ham v. South Carolina,
409 U.S. 524, 93 S. Ct. 848, 35 L.Ed.2d 46 (1973),] we
held that the subject of potential racial bias must be
`covered' by the questioning of the trial court in the
course of its examination of potential jurors, but we
were careful not to specify the particulars by which
this could be done. We did not, for instance, require
questioning of individual jurors about facts or
experiences that might have led to racial bias.
Id. at 1908. Where, as here, the court has inquired adequately
into the jurors' possible biases, that is, in a manner reasonably
calculated to identify any bias, the failure to require that the
prospective jurors of a particular religion identify themselves
does not constitute an abuse of discretion nor render the trial
constitutionally suspect.
II.
The en banc court is in agreement that all but part II of
the panel opinion, and that portion of part II that holds that
the district court did not err in refusing to strike for cause
all black, Hispanic, and Jewish prospective jurors, should be
reinstated. For the foregoing reasons, we would affirm as well
on the question of whether the conduct of voir dire deprived the
defendants of a fair and impartial jury.
9
HIGGINBOTHAM, Circuit Judge, with whom POLITZ, Chief Judge, and
GARWOOD, JOLLY, DAVIS, JONES, and DEMOSS, Circuit Judges, join,
would reverse the judgments of conviction for the following
reasons:
This is the opinion that we think the court should have
adopted. Recent decisions by the Supreme Court have sharply
curtailed the trial lawyer's traditional reliance on intuition
and stereotypes in jury selection. Peremptory challenges are
often no longer peremptory. Rather, trial lawyers must offer
reasons. The Supreme Court has--almost with the same pen--
insisted on a criminal defendant's constitutional right to an
adequate voir dire. The combination casts a pall over
increasingly limited voir dire of jurors in federal courts.
These practices cannot continue. Both the prosecution and
defense are entitled to a full probing of the venire. The trial
judge must tailor the examination of the venire to the case,
unrelentingly insisting on an adequate examination. That did not
happen here--as we will explain.
I.
This is an appeal of convictions by a jury in Dallas, Texas
of charges of conspiring to deprive black, Hispanic, and Jewish
citizens of rights secured to them under the Constitution and
laws of the United States, in violation of 18 U.S.C. § 241. A
panel of this court affirmed the convictions, rejecting numerous
assertions of error. We granted rehearing en banc to consider
whether the district court erred in refusing to explore the issue
10
of racial bias at voir dire and to inquire whether members of the
venire were Jewish. We find no merit in defendants' other points
of error, but we would find that the restricted voir dire
deprived the defendants of their Sixth Amendment rights by
creating an unacceptable risk that the jury was biased, and
reverse.
II.
Defendants Christopher Greer, Daniel Wood, Sean Tarrant,
Michael Lawrence, and Jon Jordan were members of the Confederate
Hammerskins, a white supremacist group based in Garland, Texas.
The government collected evidence that the defendants and other
Hammerskins conspired to deprive blacks, Hispanics and Jews of
their civil rights. This evidence indicated that the Hammerskins
tried to drive blacks and Hispanics out of Robert E. Lee Park in
Dallas in the summer of 1988. On many occasions, they went to
the park in small groups and chased, beat, and assaulted the
blacks and Hispanics they found there. There was also evidence
that the defendants vandalized the Temple Shalom and Jewish
Community Center in Dallas by spray painting them with swastikas
and anti-Semitic graffiti, shooting out windows, and breaking
doors. The police interrupted a later plan to vandalize Jewish
businesses in Dallas and Euless, Texas, in commemoration of the
fiftieth anniversary of Kristallnacht, a night of violence
against Jewish businesses in Nazi Germany.
A federal grand jury returned a three count indictment
charging the defendants with (1) conspiracy to deprive black and
11
Hispanic citizens of their rights under 42 U.S.C. § 2000a to use
a public park, in violation of 18 U.S.C. § 241; (2) conspiracy to
deprive Jewish citizens of their rights under 42 U.S.C. § 1982 to
hold property, in violation of 18 U.S.C. § 241; and (3) using a
firearm in the commission of the second offense, in violation of
18 U.S.C. § 924(c)(1) and (3).8 More specifically, the grand jury
charged in count one that the defendants
. . . did willfully conspire and agree with each other
and other persons, known and unknown to the grand jury,
to injure, oppress, threaten and intimidate Black and
Hispanic citizens of the United States in the free
exercise of the right secured to them by the
Constitution and laws of the United States to the full
and equal enjoyment of the services, facilities,
privileges, advantages, and accommodations of any place
of public
accommodation without discrimination on the ground of
race, color, or national origin.
It was part of the plan and purpose of this
conspiracy that the defendants would join with others
in Robert E. Lee park to chase, assault, and beat black
and Hispanic persons in order to prevent them from
enjoying the use of Robert E. Lee park, which was a
symbol to the defendants of white supremacy.
and in count two that the defendants
. . . did willfully conspire and agree with each other
and others to injure, oppress, threaten and intimidate
Jewish citizens of the United States in the free
exercise and enjoyment of the right secured to them by
the Constitution and laws of the United States to hold
real and personal property in the same manner as that
right is enjoyed by all citizens.
It was part of the purpose and plan of the
conspiracy to vandalize Jewish properties in the Dallas
area and through such intimidation and threats of force
to prevent Jewish persons from enjoying the holding of
such property.
8
Tarrant and Greer were not charged in count three.
12
The case, tried in Dallas, Texas, touched deep emotions and
sparked considerable publicity. Recognizing that the case was
being called in a unique swirl of public debate and tension, the
trial judge deviated from the usual procedures. At pre-trial, he
explained to counsel how the jury would be selected. First, the
judge would conduct the voir dire himself, as Rule 24 of the
Federal Rules of Criminal Procedure permits. Second, rather than
using the standard juror questionnaire recommended for complex
cases in the Northern District of Texas, counsel were to submit
proposed juror questionnaires. Third, members of the venire
responding affirmatively to questions regarding their exposure to
pretrial publicity would be examined separately regarding its
effects on their ability to remain impartial.
Defense counsel submitted a proposed juror questionnaire as
the district court had directed. Among defense counsel's
proposed questions were "[w]hat is your religion?," "[d]o you
regularly attend church, temple or other religious services?,"
and "[d]o you hold any offices in your church, temple or
religious organization?". The judge agreed to submit the latter
two questions but refused to include the question regarding the
jurors' religious affiliation, although this question is standard
on the juror questionnaires used in the state courts in Dallas
County and recommended for the federal courts.9
9
See Jury Manual, United States District Court, Northern
District of Texas, Confidential Questionnaire. Question 11 is
"What is your religious preference and church affiliation, if
any?" Other questions include such matters as the prospective
jurors' educational background, military service, employment
13
Before voir dire, defense counsel moved to strike for cause
all black, Hispanic, and Jewish members of the venire, since they
were the intended victims of the crimes charged in the
indictment. The district court denied the motion, explaining
that he would not presume that all members of these groups would
consider themselves victims, or that they would be unable to
observe their oaths. Defense counsel responded that he hoped
part of the voir dire would get into matters of racial bias,
given the fact that blacks, Hispanics, and Jews might serve as
fact finders in a case alleging a conspiracy to deprive black,
Hispanic, and Jewish citizens of their civil rights. The judge
said he would "take a look at it and see."
With the entire venire in the courtroom, the judge asked
them a number of questions as a group. He read the language of
the indictment, and asked the following three questions regarding
the issues involved in the case:
Should the evidence show that the Confederate
Hammerskins are a group which advocates white supremacy
and that the defendants are members of such a group . .
.could you give each of the Defendants the same
presumption of innocence and the same benefit of
following only the evidence adduced in court and the
instructions or law that the Court gives you without
any kind of bias or prejudice or sympathy or fear?
Two prospective jurors said that they could not and were later
excused. The judge then told the venire:
The charges in the indictment . . . [allege in]
status, hobbies, clubs, groups, union membership, the newspapers
or magazines they read, and their favorite TV programs.
14
substance that the Defendants acted to interfere with
the constitutional protected rights of other persons
because of their race or color or national origin. The
Government may put on evidence to demonstrate the
Defendants' racial beliefs. However, I instruct you
that the Defendants are not on trial for their racial
beliefs, whether you agree with those beliefs or don't
agree with those beliefs. Now is there anyone who
could not follow that instruction? (No response.)
You can use evidence of the beliefs of a Defendant to
help decide whether the Defendant may have acted or may
have been motivated to act in accordance with those
beliefs but you are here as jurors only to judge
matters under the Charge and not whether a Defendant
believed in such a way, had a belief. Whether he acted
is what you will be talking about. Anybody who can't
follow that sort of instruction? (No response)
He then returned the panel to the central jury room and conducted
brief, separate interviews, in open court of each individual
juror who had answered yes on the questionnaire as to whether
they had read or heard any press reports about the case. He
asked what they had heard or read and whether they could remain
impartial despite what they knew. Juror Washington answered that
she had read about the case and could not be fair. She was
excused. Two of the venire persons who had read or heard about
the case stated that the defendants had been referred to as
bigots or racists. Our colleagues who would affirm are mistaken
in their assertion that "several" venire persons referred to
defendants in such terms. None did. They are also mistaken in
their assertion that the district court did anything more than
ask about pretrial publicity and whether the venire person could
be fair in light of what they had seen or heard.
When this probe for the effects of pretrial publicity was
concluded, defense counsel again renewed their objection to
15
seating victims of the alleged conspiracies on the jury. They
also renewed their request to ask the venire specific questions
about the subject matter of the case and whether that would
affect their impartiality. They reminded the judge that the
inflammatory nature of the evidence would make the case difficult
for members of these groups--in other words, that it might be
difficult for some members of these groups to remain impartial
when they heard evidence of the desecrated temple, of violent
racial assaults, and their clients' virulent hatred of blacks,
Hispanics, and Jews. The judge replied that he had told the
venire everything about the subject matter of the case that he
was going to tell them. Defense counsel asked that the district
court at least inquire which jurors were Jewish, so that they
could exercise their peremptory strikes intelligently. The judge
refused. The jury was impaneled, the case was tried, and the
defendants were convicted on all counts.10 There was no inquiry
into the potential for racial bias in the venire other than the
general questions indicating that the defendants were not on
trial for their racial beliefs. Nor did the defendants ever
learn whether any of the jurors who were selected were Jewish.
A panel of this court affirmed the convictions on appeal.
It affirmed the district court's refusal to probe the venire for
racial and ethnic biases, holding that the more general inquiries
sufficiently explored potential bias. The panel also held that
refusing to ask if any member of the venire was Jewish was
10
Lawrence was acquitted on the firearm count.
16
correct, rejecting the contention that the question was critical
both standing alone and as the predicate to any meaningful
interrogation. According to the panel, whether to go beyond its
more general questions to the venire was within the discretion of
the trial judge. Finally, it observed that a defendant could not
peremptorily strike a member of the venire because that person
was a Jew, reasoning that such a strike would have been
unconstitutional under the Supreme Court's recent jurisprudence
on race discrimination in jury selection.
III.
The Sixth Amendment guarantees defendants the right to an
impartial jury. The questioning of prospective jurors at voir
dire is critical to preserving that right. "Without an adequate
voir dire, the trial judge's responsibility to remove prospective
jurors who will not be able impartially to follow the court's
instructions and evaluate the evidence cannot be fulfilled."
Rosales-Lopez v. United States, 101 S. Ct. 1629, 1634 (1981)
(citing Connors v. United States, 158 U.S. 408 (1895)). Voir
dire is also the only means by which the defendant can develop
the information necessary to decide which jurors to challenge,
either peremptorily or for cause. "While challenges for cause
permit rejection of jurors on a narrowly specified, provable and
legally cognizable basis of partiality, the peremptory permits
rejection for a real or imagined partiality that is less easily
designated or demonstrable." Swain v. Alabama, 380 U.S. 202, 220
(1965). Both types of challenges are an essential part of the
17
process of ensuring trial by a fair and qualified jury.
In most contexts, we afford trial judges broad discretion in
determining how best to conduct a voir dire. The trial judge is
in the best position to evaluate the demeanor of prospective
jurors and to draw conclusions about their partiality. There are
special requirements, however, with respect to questioning
prospective jurors in a case involving racial or ethnic bias.
Rosales-Lopez, 101 S. Ct. at 1635. When racial issues are
"inextricably bound up with the conduct of the trial," a voir
dire must include questioning specifically directed to racial
prejudice or bias to meet the constitutional requirement that an
impartial jury be impaneled. Ristaino v. Ross, 424 U.S. 589, 597
(1976); Ham v. South Carolina, 409 U.S. 524 (1973). Even when
racial issues do not pervade the case, the Court has exercised
its supervisory power over federal courts to require inquiry into
racial bias or prejudice in federal cases in which the defendant
is accused of committing violent crimes against a member of a
different racial or ethnic group. See Aldridge v. United States,
283 U.S. 308, 310 (1931); Rosales-Lopez, 101 S. Ct. at 1636;
Ristaino, 424 U.S. at 597 n.9. In any case, "the exercise of
[the trial court's] discretion, and the restriction upon
inquiries at the request of counsel, [are] subject to the
essential demands of fairness." Aldridge, 283 U.S. at 310.11
11
"The right to examine jurors on the voir dire as to the
existence of a disqualifying state of mind, has been upheld with
respect to other races than the black race, and in relation to
religious and other prejudices of a serious character."
Aldridge, 283 U.S. at 313.
18
There are conflicting values at stake in questioning the
venire. Courts are understandably reluctant to create the
impression that the outcome of the judicial process turns on the
race of the participants in that process. See Ristaino, 424 U.S.
at 596 n.8. On the other hand, so long as racial and ethnic
prejudices are part of the human condition, we cannot will them
away by refusing to probe both for their presence and their reach
in a given case. Stoic pretense will not do. Seen from the eyes
of the trial lawyer, this social pretense can have no place in
jury selection. See Rosales-Lopez, 101 S. Ct. at 1635 ("[A
criminal] trial is not the place in which to elevate appearance
over reality."). We say nothing new. Over sixty years ago, the
Court considered this conflict in Aldridge, supra, and firmly
rejected the argument that "it would be detrimental to the
administration of the law in the courts of the United States to
allow questions to jurors as to racial or religious prejudices."
308 U.S. at 315. The Court concluded that "it would be far more
injurious to permit it to be thought that persons entertaining a
disqualifying prejudice were allowed to serve as jurors and that
inquiries designed to elicit the fact of disqualification were
barred." Id.
The issue in this case is whether the questions posed by the
district court were sufficient to protect the parties from the
risk that jurors with such disqualifying biases or prejudices
would be selected. A trial judge has substantial discretion in
conducting voir dire, but the Court has recognized that it is
19
usually best to allow the parties, typically the defendant in a
criminal case, to determine whether or not they would prefer to
have the inquiry into racial or ethnic prejudice pursued.
Rosales-Lopez, 101 S. Ct. at 1636; United States v. Erwin, 793
F.2d 656, 668 (5th Cir. 1986). Global questions to a venire
asking whether any member cannot follow his oath due to bias,
prejudice, or partiality are not adequate in a case where racial
animus is at issue. See Ham, 409 U.S. at 526.12 No particular
form or number of questions is required, but the questions must
be sufficient to focus the attention of the prospective jurors on
any racial prejudice they might harbor. Id. at 527.
Only recently the Court has emphasized the importance of
asking specific questions designed to unearth the disqualifying
views of prospective jurors. In Morgan v. Illinois, No. 91-5118
(June 15, 1992), the Court considered whether a state trial judge
committed reversible error when he refused to ask members of a
venire whether they would automatically vote to impose the death
penalty if they found the defendant guilty. The trial court
refused to ask this question, explaining that it had asked
questions in a similar vein. It had explained the dictates of
12
The Supreme Court held in Ham that the following three
questions were not a sufficient probe of race.
1. Have you formed or expressed any bias or prejudice
for or against him?
2. Are you conscious of any bias or prejudice for or
against him?
3. Can you give the State and the defendant a fair
and impartial trial?
409 U.S. at 526 n.3.
20
Illinois procedure in capital trials and asked whether the jurors
would be able to follow its instructions in these matters even if
they disagreed with them. It had asked the prospective jurors
whether they would automatically vote against the death penalty.
It had asked whether the members of the venire knew of any reason
that they could not be fair and impartial.
The Supreme Court reversed. It explained that although voir
dire is conducted under the supervision of the trial court, and a
great deal must be left to its discretion, "part of the guaranty
of the defendant's right to an impartial jury is an adequate voir
dire to identify unqualified jurors." __ U.S. at __. Having
compared this situation to the necessary inquiry into racial bias
the Court had mandated in Aldridge and Ham, Justice White
explained that general fairness and "follow the law" questions
were insufficient to detect those in the venire who would
automatically vote for the death penalty. There is no "catechism
for voir dire," but since jurors unalterably in favor of or
opposed to the death penalty in every case could not perform
their duties in accordance with law, specific questions to elicit
these views from the members of the venire were necessary.
In short, how the trial judge gets at it is his call, but
get to it he must. Every experienced trial lawyer knows that the
ritualistic global inquiry to the entire panel by the trial judge
is only the beginning in sensitive cases. The questioning that
goes beyond this opening ritual is the essence of voir dire. It
is difficult for a venire person to confess to such bias and
21
prejudice, when all the while he is likely denying it to himself.
But potential jurors are often asked sensitive and potentially
embarrassing questions. See, e.g., Burton v. Johnson, 948 F.2d
1150, 1157-59 (10th Cir. 1991) (familial abuse); see generally
United States v. Masat, 896 F.2d 88, 95 (5th Cir. 1990). The
trial judge's questions must provide a reasonable assurance that
racial bias or prejudice would be discovered if present. United
States v. Harrelson, 754 F.2d 1153, 1161-62 (5th Cir. 1985);
United States v. Samiento-Rozo, 676 F.2d 146, 148 (5th Cir.
1982). Furthermore, since voir dire is the basis for the
exercise of peremptory challenges, the questioning must give the
defendant an opportunity to make reasonably intelligent use of
his strikes. Knox v. Collins, 928 F.2d 657, 661 (5th Cir. 1991);
United States v. Ible, 630 F.2d 389, 394-95 (5th Cir. 1980);
United States v. Moore, 936 F.2d 1508, 1514 (7th Cir. 1991). We
evaluate the voir dire in this case with these principles in
mind.
The trial judge asked the members of the venire some
questions concerning the racial beliefs of the defendants, and
whether they could remain impartial despite those beliefs. He
did not ask about the racial biases or prejudices of members of
the venire, however. Moreover, the judge had ruled from the
outset that all inquiry regarding religion was out of bounds.
Finally, the trial court asked no questions designed to elicit
from the prospective jurors whether they could remain impartial
even though they may have seen themselves as members of the class
22
of victims charged in the indictment. In a trial in which white
supremacists were accused of crimes against blacks, Hispanics,
and Jews because they were black, Hispanic, and Jewish, the
court's refusal to explore potential racial bias on voir dire in
any meaningful way denied the defendants their constitutional
right to an adequate voir dire. Their convictions cannot stand.
The government sought to prove at trial that the defendants
deprived citizens of their federally secured rights because they
were members of racial minorities. Regardless of whether we
characterize all blacks, Hispanics, and Jews as the intended
victims of the defendants' crimes, or only those in Dallas
County, or only those who frequented the park, temple, and Jewish
Community Center, it is plain that the indictment charged crimes
that threaten members of these particular groups with violence.
The very nature of the charged offenses therefore had a special
significance for members of the venire who were black, Hispanic,
or Jewish because hatred of their races was at the core of the
prosecution's case. In these circumstances, defense counsel
needed to know which jurors were black, Hispanic, or Jewish, and
to probe their ability to be fair in spite of their relationship
to the charged offense. The stunning fact is that two venire
persons disqualified themselves in response to the global
questions. This was no comforting evidence that the global
questions were adequate. It was a large warning of trouble. The
rapid successive questioning of venire persons (usually one to
three per page of the record) about pretrial publicity was no
23
more than whether each could be fair in light of what they had
seen or read about the case. None were asked further questions
about their own views beyond the question can you be fair.
Thirteen "hesitated," to use the words of our colleagues, in
answering that question. It is no answer that defendants
collectively had fifteen strikes. It is no answer because we are
left with approximately forty venire persons whose views are
untouched--beyond the global questions and this jury was chosen
from that pool.
We do not assume that all members of the targeted groups
would be biased. But we cannot assume the contrary either. In
this kind of case, at least some members of the racial groups
targeted by the defendants' charged violence might be unable to
remain impassive and impartial when confronted as jurors with
evidence of these crimes. They were threatened by the conduct
charged in the indictment. We do not find fairness less
threatened because the potential bias of a prospective juror
might arise not out of any racial animosity toward white
defendants, but out of the threat to that juror as a member of
the victim class. When the Court considered the racial question
in Aldridge, it found it relevant not only that the defendant was
black, but also that his victim was white. 283 U.S. at 309. The
Court has continued to rely on the fact that the defendant and
the victim are members of different racial or ethnic groups in
assessing the need for inquiry into racial matters at voir dire.
Rosales-Lopez, 101 S. Ct. at 1636; Turner v. Murray, 106 S. Ct.
24
1683, 1689 (1986). Since the crime charged in this case not only
involved interracial violence, but violence predicated on race,
inquiry into the potential for racial bias among the members of
the venire was crucial.
Instead of confronting these sensitive issues, as defense
counsel urged, the trial judge skated around them. The brief
questions he posed to the venire as a group amounted to little
more than asking them whether they could judge the defendants for
what they did rather than what they thought. This was an
important issue as the trial judge commendably recognized, but
there was no inquiry into whether the jurors held racial biases
or saw themselves as victims of the charged offenses. This
critical area--the most critical area--was roped off from
beginning to end.
We intend no undue criticism of the trial court. This was
not an indifferent trial judge or a judge who failed to see that
he had a sensitive and difficult case to try. The district court
confronted the apparent tension between the recent emphasis upon
the rights of venire persons to be free of discrimination and the
rights of the parties to an impartial jury. It opted to protect
the venire members to the point of refusing to ask if any person
adhered to the Jewish faith. This lacuna in an otherwise
adequate examination of the venire is explainable only in this
way, as evidenced by the quite different ways of handling the
distinct issues of the effects of pretrial publicity and the
possibility of prejudice and bias triggered by the highly
25
emotional charges in this case.
The court's refusal to explore the issue of racial bias and
to allow defense counsel to discover which jurors were Jewish was
reversible error. The convictions of Ham and Aldridge were
reversed when the Court found the voir dire in those cases
lacking. The lower courts have not hesitated to reverse
convictions when the particular circumstances of the case made
clear that the voir dire was inadequate. See, e.g., United
States v. Bear Runner, 502 F.2d 908 (8th Cir. 1974) (voir dire on
racial bias in trial of American Indian was inadequate given the
racial tensions in South Dakota arising out of the events at
Wounded Knee); United States v. Evans, 917 F.2d 800, 806 (4th
Cir. 1990) (voir dire on the credibility of law enforcement
officials was inadequate when the case would be a swearing match
between the defendants and a DEA agent). Courts have also found
reversible error when the trial judge refused to allow defense
counsel to discover critical facts about the members of the
venire. See, e.g., Aldridge, 283 U.S. at 313 (citing with
approval a California court's reversal of convictions when
Mexican defendants were not allowed to determine whether jurors
were members of the xenophobic Know Nothing party); United States
v. Ible, 630 F.2d 389, 394-95 (5th Cir. 1980) (inquiry into
prospective jurors' religious beliefs about alcohol was required
on voir dire when this would be an issue at trial). The case for
reversal here is stronger than in any of these others, since the
court failed to explore the issue of racial bias and refused to
26
allow defense counsel to discover the race of Jewish members of
the venire when these matters were part and parcel of the charged
offenses.
Finally, we note that information as to whether members of
the venire were Jewish was essential for the defendants to make
reasonably intelligent use of their peremptory challenges. In
recent years the Supreme Court has restricted the use of
peremptory strikes on the basis of race. See Batson v. Kentucky,
476 U.S. 79 (1986); Edmonson v. Leesville Concrete Co., 111 S.
Ct. 2077 (1991). The Court explained in Batson that the Equal
Protection Clause forbids the State to strike venire persons on
the assumption that they will be biased because of the race of
the defendant, or presumably the race of the victim. 476 U.S. at
97-98. This term it extended its holding to the exercise of
peremptories by criminal defendants. Georgia v. McCollum, No.
91-372 (June 18, 1992). "Be it at the hands of the State or the
defense, if a court allows jurors to be excluded because of group
bias, it is a willing participant in a scheme that could only
undermine the very foundation of our system of justice." __ U.S.
at __.
Any perceived tension between the Court's recent
jurisprudence on race discrimination in jury selection and its
decisions on the adequacy of voir dire questioning is illusory.
The line of cases beginning with Aldridge, and continuing with
Ham and Rosales-Lopez recognize that it is an unfortunate fact in
our society that violent crimes perpetrated against members of
27
other racial or ethnic groups are attended by a significant risk
that racial or ethnic prejudice will influence jury verdicts.
See Rosales-Lopez, 451 U.S. at 192. Batson, Edmonson, and
McCollum, on the other hand, stand for the proposition that
assumptions of juror partiality based on race have no place in a
court of law. Both lines of cases mandate that racist views be
eliminated from the jury selection process, both those of
potential jurors and counsel deciding which prospective jurors to
strike.
Thus the Court's decision in McCollum magnifies the
necessity for a probing inquiry into individual racial bias at
voir dire. As Justice Blackmun observed, "there is a distinction
between exercising a peremptory challenge to discriminate
invidiously against jurors on account of race and exercising a
peremptory challenge to remove an individual juror who harbors
racial prejudice." __ U.S. __. Without adequate voir dire,
defendants cannot dissipate fears and concerns in sensitive cases
as to whether individual jurors harbor racial prejudices or
biases. Qualification to serve will not be developed, and the
parties cannot intelligently exercise their peremptory strikes if
the questioning of members of the venire is insufficient to
expose which among them would likely be biased.
In this case, the defendants were charged with crimes of
violence against blacks, Hispanics, and Jews as blacks,
Hispanics, and Jews. In these circumstances, the defendants
needed to know which members of the venire were members of these
28
groups in order to explore the potential for racial bias in any
meaningful sense. They could have exercised peremptory strikes
against jurors in these groups if further questioning indicated
that they could not remain impartial because of their
relationship to the charged offenses. Instead, the trial judge
denied defense counsel this information and refused to ask the
jurors questions about the issue of racial bias. A peremptory
challenge of a Jewish member of the venire could have been based
not on the assumption that Jews are uniformly biased because of
an affinity for other members of their race, but it could have
been based on a determination that individual Jewish members of
the venire may well have seen themselves as persons threatened by
the charged conduct. This is not the stereotypical attributive
stuff of an equal protection violation; rather it is a legitimate
reason for a peremptory strike. Compare Hernandez v. New York,
111 S. Ct. 1859 (1991) (upholding peremptory challenges against
Hispanic jurors since they might not be able to defer to English
translation of testimony in Spanish).
Moreover, it is difficult for us to understand how
attributing to a venire person a nearly universal human
characteristic SQsuch as a tendency to hostility toward those who
threaten the individual because of his membership in a groupSQmay
properly be described as stereotyping or discriminating against
that particular group (or individual). Stereotyping implies
attributing to the group (and individual member) characteristics
different from those that are otherwise common, and
29
discriminating against implies acting on the basis of such
perceived differences. It would be stereotyping the group and
the individual to assume that it and he (because he was of that
group) did not have such common human characteristics.
We think the district court would have furthered rather than
frustrated the policy against race discrimination in jury
selection had it inquired into the issue of racial bias in this
case. Indeed, the Court's holding in Ham was grounded in the
idea that a principal purpose of the Fourteenth Amendment was to
prohibit the States from invidiously discriminating on the basis
of race. 409 U.S. at 526-27. The district court erred when it
created a "right" of a venire person to be free of even a neutral
question of religion affiliation.
If we are to eliminate peremptory challenges based on racial
stereotypes, as Batson, Edmonson, and McCollum mandate, we must
insist on a searching inquiry into the individual biases and
prejudices of members of the venire in civil rights cases
redolent with prejudice, bias, and anger. This includes
investigation of the potential for racial bias on the part of
individual jurors. This able trial judge was led by perceived
signals of Batson to a stance overly protective of venire
persons. These crimes are despicable, but then defendants at the
time of voir dire were only charged with them. The moral
repugnance of the acts charged in this indictment only
accentuates the demand for a thorough voir dire. The rights of
defendants were lost in the effort to protect the venire.
30
There are no magic questions to be asked venire persons and
we require none today. The trial judge has discretion to control
the voir dire, but there are limits. The federal trial judge is
a puissant figure but he is no more important than counsel. This
is a three-cornered play of prosecutor, judge, and defense
counsel--three players, not one. We would reverse for a new
trial.
31