(concurring).
I am in substantial agreement with the opinion of the court and add this brief concurrence only to emphasize those con*10siderations which to me seem decisive in this case. This seems worthwhile because the role of the federal courts in' these challenges to the essential fairness of state criminal convictions is a particularly difficult one. It becomes our duty to distinguish between state action which we merely disapprove as unwise or undesirable, and that which in our best judgment is intolerable. It was the inherent difficulty in thus separating the intolerable from the merely undesirable which caused the division of this court in such cases as United States ex rel. Darcy v. Handy, 3 Cir., 1955, 224 F.2d 504, and United States ex rel. Smith v. Baldi, 3 Cir., 1951, 192 F.2d 540. It divides us again here. Accordingly, I think it desirable to restate as precisely as I can the combination of circumstances which to me makes it intolerable that this death sentence should be permitted to stand.
As Judge McLaughlin has spelled out in greater detail, there came a time in the post-conviction proceedings in the New Jersey courts when this much was clear beyond any possible need for ad ditional inquiry or fact finding.
1. The primary responsibility of the jury in this murder trial was to choose between the death penalty and life imprisonment as the appropriate punishment for defendants who for all practical purposes had conceded their guilt of homicide in the commission of armed robbery.
2. A few blocks from the place of this robbery-homicide, and only eight months earlier, juror Kuhnle had been the victim of an armed robbery. Moreover, his work as night manager of a telegraph office involved the responsibility of frequently taking deposits of money to the bank late at night. The continuing substantial risk of armed robbery to which Kuhnle was thus subjected. had been dramatized and emphasized by providing him with a police escort.
3. During the interrogation of prospective jurors many questions were addressed to various talesmen which showed that any past connection with armed robbery was a matter of special concern. Hearing these questions must have made crystal clear to Kuhnle what the dictates of average intelligence should in any event have suggested; namely, that in response to the general inquiry made of all jurors concerning possible disqualifying circumstances, he should have disclosed for the evaluation of the court and counsel his recent dramatic and impressive experience with an actual armed robbery and precautions against the danger of recurrence.
4. In addition, as Judge McLaughlin has also pointed out, the prosecutor’s appeal to the jury, climaxing other items of similar purport, was worded and calculated to make the jurors apprehensive for their own safety from armed robbery, and to induce them to judge the appropriate punishment of the defendants in the light of the jeopardy in which they themselves stood because of such evil doers.
To me it is inconceivable that Kuhnle’s own experience, as emphasized and brought vividly to mind by the government’s case and the prosecutor’s appeal, could have left this juror capable of objective determination of the appropriate punishment for these defendants. In these circumstances, it was fundamentally unfair and inconsistent with our concept of the unbiased administration of justice that Kuhnle should have participated in the decision whether the accused should live or die. Once this picture of one of the jurors was fully revealed in the proceedings which followed conviction and sentence, I think it was the duty of the New Jersey courts under the due process clause to order a new trial or a redetermination of the sentence. By the same token I think it is our duty now.
I am authorized to state that Chief Judge BIGGS concurs in the views expressed herein.
KALODNER, Circuit Judge, with whom MARIS and GOODRICH, Circuit Judges, concur, dissenting:
*11With slight paraphrase this is the sum of the majority’s position:
DeVita and his co-defendants signed confessions, admitted the facts, and actually had no defense to the charge of murder under the New Jersey felony-murder statute; they had offered to plead to the life-term offense; the one disputed point at their trial in the state court (New Jersey) was whether the jury should recommend life imprisonment; for that kind of a trial the Fourteenth Amendment insists on the most impartial tribunal the reasonable needs of society will permit; with Kuhnle a member of it, the DeVita-Grillo jury was not that sort because one who has been assaulted, threatened with a deadly weapon and robbed is not likely to forget or forgive nor to treat lightly even fairly similar conduct in others; the subsequently discovered undisputed facts (of Kuhnle’s holdup, failure to disclose it at his voir dire examination, and his statement then that he didn’t know State’s officers or personnel) make out colorable bias in a juror who was part of a verdict which caused DeVita and his confederate Grillo to be sentenced to death; under the law as it is today, both federal and New Jersey, the admitted facts demonstrate bias to the extent that it voids the process.
Judge HASTIE in his concurring opinion brings into even sharper focus his and the majority’s conclusion that Kuhnle must be held as a matter of law so biased and prejudiced by reason of his own holdup experience that his participation in the petitioners’ trial was in violation of due process.
Said Judge HASTIE:
“To me it is inconceivable that Kuhnle’s own experience * * * could have left this juror capable of objective determination of the appropriate punishment for these defendants. In these circumstances, it was fundamentally unfair and inconsistent with our concept of the unbiased administration of justice that Kuhnle should have participated in the decision whether the accused should live or die.” (Emphasis supplied.)
In ruling that as a matter of law “the admitted facts demonstrate bias to the extent that it voids the [due] process” the majority fails to give proper weight to these indisputable critical facts:
(1) three men were involved in the felony-murder case, DeVita, Grillo and Rosania, and all were tried at the same time by the jury of which Kuhnle was a member; it was not just a “DeVita-Grillo” jury;
(2) the jury made a recommendation of life imprisonment with respect to Rosania although it did not do so as to DeVita and Grillo on their return of a verdict of guilty of murder in the first degree as to all three men.
In considering these facts the majority makes these three points:
(1) “* * * if the jury had consisted of twelve patently prejudiced people they still would have found a major differentiation between Rosania and the other defendants, DeVita and Grillo.”
(2) DeVita and Grillo “ * * * committed the holdup, Grillo firing the fatal shot.”
(3) “Rosania, a former employee of the place which was robbed, had been in on the planning of the robbery but * * * was not at the scene of the actual killing.”
As to the first of these points it need only be said that “patently prejudiced people” do not make “differentiation^],” “major” or minor; it is the disregard of differentiating factors which is the hallmark of prejudice.
The second and third points may be considered together.
The majority’s statement that DeVita and Grillo “committed the holdup”; Rosania “had been in on the planning of the robbery” but “was not at the scene of the actual killing” is correct as far as it goes but it does not go far enough, as will be seen from the following undisputed facts.
*12Rosania had worked intermittently for brief periods in 1948, 1949 and 1950 for Universal Food Market. Some six weeks prior to the November 9, 1951 date he suggested to a group of which DeVita was a member that it would be “easy” to rob Universal. He subsequently further discussed the suggestion with DeVita and Grillo. In a reconnaissance or “casing” operation he worked at Universal on November 2,1951 and reported the fruits of his observations to DeVita and Grillo, specifically how Thomas Lofrano, manager of Universal, and James Law, its private policeman, nightly proceeded to deposit Universal’s daily receipts at a nearby bank.
On the evening of November 9, 1951, Rosania, DeVita and Grillo proceeded to the Delaware, Lackawanna and Western Railroad station where was stored in a locker Grillo’s brief case containing revolvers and ammunition. Rosania and DeVita went into the station and got the brief case. Rosania carried it out to Grillo and opened it. DeVita took from it a 32 automatic and Grillo a Beretta automatic; the murder weapon. Rosania then took the brief case back to the locker. The three men then proceeded to the Universal Food Market. They sat on a bench in the park facing the market and perfected the plan of operations. Rosania made a search for Law’s car in a parking lot adjacent to the Universal Market but could not find it. He later pointed out Lofrano and Law while they moved about in the market. He then left after having arranged with DeVita and Grillo to call him at a diner after the holdup was completed. Some 10 or 15 minutes later Lofrano and Law emerged from the market, the former carrying a paper bag containing the day’s receipts (some $5,000 in cash) and Law walking behind him. Reaching his car Law entered and sat in the driver’s seat; Lofrano sat to his right. Grillo went to Law’s side of the ear with drawn revolver; DeVita to Lofrano’s side with drawn revolver. This is a stickup, they said. It was at this juncture that Grillo’s gun was fired and Law was fatally wounded, dying about two hours later. Grillo grabbed the money bag and he and DeVita fled the scene. Later they contacted Rosania and he picked them up in a friend’s car. When DeVita phoned Rosania he asked what happened in the robbery. Several days later the three men were arrested, they confessed, some of the proceeds of the theft were discovered and the murder weapon recovered.
All three men at the beginning of their trial sought to enter pleas of non vult or nolo contendere to the crime of murder in the first degree; the State’s attorney refused to agree because under New Jersey law the maximum punishment under such plea would be imprisonment for life.
DeVita’s counsel and Grillo’s counsel in their summations to the jury frankly conceded that their clients must be found guilty of murder in the first degree but pleaded for a merciful life imprisonment recommendation — DeVita on the grounds of youth; he “had not drawn his gun”; he did not intend there should be gun-play or a killing — Grillo on the grounds that he had not intended to shoot Law; his gun went off accidently.
Rosania’s counsel made a plea to the jury for acquittal on the ground that he had withdrawn from the holdup plan before the crime took place and that he had attempted to dissuade DeVita and Grillo from going through with the holdup. Incidentally, both DeVita and Grillo denied the latter and their testimony further established Rosania’s participation in the plotting of the holdup up to the very moment he departed because he feared recognition by former fellow employees of Universal.
The trial judge instructed the jury that if they believed Rosania's contention that he had withdrawn from the holdup plan before it was consummated he must be acquitted. The jury’s verdict of guilty as to Rosania demonstrated its rejection of the withdrawal contention. Its recommendation of life imprisonment certainly cannot be said to be due to a warranted “major differentiation be*13tween Rosania and the other defendants, DeVita and Grillo” because, as the majority puts it, “The latter two committed the holdup, Grillo firing the fatal shot.”
As the trial judge properly charged the jury, the crime of all three men was of a piece of Rosania had not withdrawn from the holdup plan before the shooting, and his mere absence from the scene at the time of the shooting was not a critical circumstance. The fact that the jury made a merciful recommendation of life imprisonment amply demonstrates that it was not a prejudiced jury; far from that fact, it could well be said, under the circumstances overwhelmingly established by the evidence, that it was indeed merciful to a fault.
Kuhnle’s participation in the merciful recommendation is eloquent testimony of an absence of prejudice on his part in the DeVita-Grillo-Rosania trial and is a dispositive answer to the critical focal point of the majority’s position that the only real issue at the trial of the defendants was “whether the jury should recommend life imprisonment” and that Kuhnle was so biased and prejudiced that he could not have fairly decided that issue.
The majority’s determination that Kuhnle was so biased as to pollute the stream of justice in violation of due process seems to me to be insupportable in view of the fact that he and the jury of which he was a member recommended life imprisonment for Rosania.
“The assurance of an impartial tribunal” says the majority, “is too vital to be subjected to speculation concerning the quantum of prejudice flowing from this grossly disqualified juror.”
Does not the recommendation as to Rosania obviate any necessity for “speculation concerning the quantum of prejudice flowing from this grossly disqualified juror” and does not that recommendation demonstrate that the majority erred in describing Kuhnle as “this grossly disqualified juror?”
It is not amiss to note that it was Rosania’s counsel who had asked Kuhnle whether he knew any of the “State’s officers or personnel” and in the light of Kuhnle’s joining his fellow jurors in the merciful life imprisonment recommendation as to Rosania, it is difficult to see how the majority can find fraudulent concealment or bias because of Kuhnle’s negative answer to that question.
This may be a proper place too, to note that the majority’s statement that “ * * * it is now shown that he [Kuhnle] knew a number of Newark police since he ordinarily called for a police escort each night * * * ” is based on surmise and surmise only. The only evidence on the score of Kuhnle’s contact with policemen — contained in the newspaper clipping relating to his holdup— was that prior to it he “ordinarily called for a police escort each night” and that subsequent to it he was interrogated by three detectives in the usual routine investigation. It would be just as reasonable to assume that it was the same policeman — covering his beat — who was Kuhnle’s escort when he had one, and such a probability ought not to be summarily rejected in favor of a surmise which would provide the premise for branding Kuhnle as a scheming perpetrator of a fraud on the judicial process with three men’s lives at stake in the offing.
Of the same fabric is the majority’s premise that Kuhnle deliberately and fraudulently concealed his own holdup experience.
On this score the majority has this to say:
“Juror Kuhnle was the tenth talesman called and the fifth juror accepted. An earlier prospective juror had been queried on previous robbery experiences. Kuhnle’s attention was directed to the questions put to the other panel members but he did not disclose that he had recently been held up and robbed.”
That statement certainly fails to place in proper perspective the incident discussed.
*14This is what the record discloses actually happened.
During the morning session of the first day of the DeVita-Grillo-Rosania trial nine prospective jurors were examined in considerable detail by three attorneys who separately represented the defendants, counsel for the State, and the presiding judge. Talesman No. 6, was asked the question “Has anyone ever attempted to commit a robbery against you or any other members of your family.” The answer was “No, sir”. The first five talesmen were not asked that question or anything resembling it nor were tales-men Nos. 7 and 8 who were subsequently examined prior to the luncheon recess.
Kuhnle — talesman No. 10, was the first juror examined at the afternoon session. After he had been questioned at some length by Grillo’s counsel and State counsel he was interrogated by DeVita’s counsel. The latter in the course of his examination questioned him as follows:
“Q. You heard the interrogations this morning, did you not?
“A. Yes, sir.
“Q. And I assume you followed them?
“A. Yes.”
The foregoing makes it quite clear that Kuhnle’s attention was not specifically directed to the question put to talesman No. 6 relating to any robbery experience, although the majority’s statement as to the incident might be so construed.
It may be noted parenthetically that of the seventy-one talesmen examined after Kuhnle only six were asked a specific question as to robbery experience. Thus out of a total of eighty-one tales-men called for voir dire examination only seven were questioned as to robbery experience.
Coming now to the majority’s reference to the prosecutor’s summation to the jury in which he stated: “Why they would stick you up, Mr. Juror No. 6, and you, Mrs. Carrabant, and you, Mr. George * * * ”1 As to that incident the majority states: “After that amazing, violent assertion to the jury by the-prosecutor, vividly reminding Kuhnle of his own ordeal, how could the latter have-functioned other than short of the constitutional standard of impartiality.”
The jury’s recommendation of life-imprisonment as to Rosania is a dispositive answer to the apprehensions expressed in the majority’s rhetorical question and by Judge HASTIE.
Even independent of the circumstances, that the jury’s extension of mercy to. Rosania demonstrated absence of bias,, prejudice and fraud on Kuhnle’s part,. I could not subscribe to the majority’s view (and that of Judge HASTIE) that what was said or left unsaid by Kuhnle evidenced fraudulent concealment, bias, and prejudice as a matter of law without more.
The Essex County Court, Law Division, of New Jersey, held that fraud could not be imputed to Kuhnle as a. matter of law. On appeal, after an extensive review, the Supreme Court of New Jersey affirmed, under the caption State v. Grillo, 1954, 16 N.J. 103.2
The District Court following two hearings and an examination of the entire record reached these conclusions:3
“But there is no evidence that Kuhnle was not an impartial juror in that his deliberations or vote or those of his fellow jurors were influenced by the robbery incident. Nor is there any evidence from which to infer that Kuhnle was a biased juror. There is no proof that he intentionally deceived counsel into accepting him as a juror. * * * The fact that eleven months prior to the trial Kuhnle was a robbery victim is not a disqualification as a matter of law; there is no proof of actual bias nor of facts from which to infer bias; there is no proof that Kuhnle intentionally concealed any information, or intentionally misled counsel.”
*15Thus, prior to reaching this court, three courts, the lower and appellate courts of New Jersey and the District Court held that the record did not and could not support a judicial determination that fraud could be imputed to Kuhnle as a matter of law as the majority and Judge HASTIE now declare. It may be observed parenthetically that the conclusion noted was reached even without expressed consideration of the fact that the Kuhnle jury had extended mercy to Rosania.
In this connection it is of more than passing interest that counsel for DeVita in the instant appeal in his reply brief (page 2) stated:4 “While there may be an honest difference of opinion as to whether the evidence from the state court record is sufficient to establish the allegations of fraudulent concealment as set forth in the petition * * * ”
Implicit in the majority’s determination and that of Judge HASTIE in this case is the concept that man is made of such stuff that he will balk at nothing to wreak vengeance even unto death upon any of a class which has wronged him— he will be oblivious to the divine teaching “Vengeance is mine, I will repay, saith the Lord” — he will stealthfully and cunningly conceal his vengefulness even to the point of breaking his solemn oath as a juror — that these unworthy human attributes are so patent that courts must take judicial notice of them and hold as a matter of law that they exist and cannot be curbed — this though there is absent a single shred of evidence to sustain such a determination in a particular case.
I cannot subscribe to such an indictment of man. In holding Kuhnle as a matter of law guilty of fraudulent concealment and bias to the extent that he would exact death as a vengeance for his holdup almost a year earlier, the majority has stripped from him the presumption of innocence which the law places as a cloak of protection even about one who stands trial on the charge of murder.
The New Jersey Supreme Court dwelt at length on the focal points of Kuhnle’s voir dire examination in its opinion in State v. Grillo, supra, as did the District Court, and it would serve no useful purpose to repeat here what they said.
DeVita’s appeal is based on the premise that the District Court erred in two respects (1) it failed to impute fraud to Kuhnle as a matter of law; and (2) it did not afford him a hearing at which he could adduce testimony to establish actual fraud. The first point has already been discussed. As to the second, only this need be said — DeVita made no offer in the District Court (nor has he here) sufficient to raise factual questions. All he did in the District Court was to make an offer to go on a fishing expedition in uncharted waters which in his opinion might yield a “catch” of helpful evidence.
That is clearly manifest from his counsel’s statement at the April 25, 1955 hearing held by the District Court on the remand (p. 32 N.T.) :
« -x- * * We want a hearing, because we had no opportunity and the state court should have ordered that hearing to examine Kuhnle in detail — whom did he know; how many police did he know; what detectives did he know; were they the same detectives and police that were in the DeVita-Grillo case? That we want to know, unless your Honor is satisfied from the record that there was fraud committed.”
Mere speculation on the part of a petitioner that a juror may have intentionally concealed a material fact will not justify his recall, years later, to determine his state of mind at the time of his voir dire examination. Unrestricted inquiries into the mental processes of jurors long after they have completed their function as such can only ultimately lead to the destruction of the jury system. United States ex rel. Darcy v. Handy, 3 Cir., 1953, 203 F.2d 407, at page 419. Ample opportunity is given through the medium of the voir dire for both sides to search out the juror, and *16in the absence of affirmative proof that there has been a fraud committed, no post-trial harassment of the juror should be permitted. United States ex rel. Daverse v. Hohn, 3 Cir., 1952, 198 F.2d 934, at page 938.
For the reasons stated I would affirm the judgment of the District Court.
. Kuhnle was Juror No. 5.
. 106 A.2d 294.
. D.C.N.J.1955, 133 F.Supp. 169, 176, 177, 178.
. Filed with this Court February 3, 1956.