U.S. v. Greer

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.

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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