(dissenting).
The sole issue on this appeal relates to the voir dire examination of prospective trial jurors during which the trial judge denied a specific request on behalf of the petitioner, Ross, to ask a particular question, accurately stated by the majority as follows: “Are there any of you who believe that a white person is more likely to be telling the truth than a black person?” No question was sought by Ross’ counsel addressed to prejudice against Ross as a black. Other questions addressed to prejudice against blacks were requested by co-defendants not involved on this appeal. In my opinion the request of Ross’ counsel cannot be given the broad interpretation that the majority has given in saying that it was “a defense request to interrogate prospective jurors specifically on the issue of racial prejudice.”
The majority hold, as did the District Court, that the failure of the trial judge to question “the proposed jurors specifically on the question of racial prejudice” amounted to a denial of constitutional due process. In so holding, they rely primarily on the recent Supreme Court decision in Ham v. South Carolina, 409 U.S. 524, 93 S.Ct. 848, 35 L.Ed.2d 46 (1973), although they concede that the Ham opinion “did not explicitly state that whenever a black defendant requests the trial judge to inquire specifically on the issue of racial prejudice on voir dire the trial judge must do so.”
*758If the District Court be correct in saying that “The petitioner had a constitutional right to have the issue of racial prejudice specially called to the attention of the prospective jurors on the voir dire examination.” and if it was a “denial of due process” of constitutional dimension to deny a defense request to interrogate prospective jurors specifically on the issue of racial prejudice and if the District Court had no choice but to enter the order granting the writ of habeas corpus because “The mandate of Ham is so clear . . . then, in my opinion, Pandora’s box of potential evil has indeed been opened wide and I look with Cassandra-like foreboding upon the fu- * ture of the voir dire jury examination in cases involving black defendants.
Starting with the question, which the majority quite accurately states this litigation involves, “Are there any of you who believe that a white person is more likely to be telling the truth than a black person?”, I find no relation between such a question and the ultimate desideratum, namely, to uncover racial prejudice against a black defendant. Such a question could not be properly answered unless prosecution and defense read to the prospective juror the name and color of all witnesses they intended to call. Even then it would be impossible to obtain a juror’s pre-trial commitment as to a witness’ credibility until the particular witness had been seen and heard. Will it be constitutionally impermissive to deny interrogation as to a prospective juror’s feelings as to the credibility of a witness of the “X” race, nationality or religion? Illustrative of the problem are questions proposed by petitioners’ co-defendants:
“18. Do you have any feelings either for or against persons of the Black race who wear the Afro style haircut and long sideburns?” (App. p. 56) or
“7. Do you feel that this increase (in crime) is due primarily to blacks in the city?” and
“12. Do you object to the number of blacks and Puerto Ricans on the welfare rolls in the city?” (App. p. 58.)
The other forty questions sought to be asked by these co-defendants were undoubtedly intended in good faith by counsel to ferret out the more intimate prejudices of the panel which was to pass judgment on their clients but query, did not the state trial judge probe sufficiently deeply, as a practical matter, in inquiring “Can you under oath return a fair and impartial verdict based upon the evidence that you hear in the courtroom and not upon any extraneous factors; no bias or prejudice or personal interest in the case, and no prejudice of any kind.” (App. p. 494.)
Petitioner argues that the state judge’s failure to focus the attention of the prospective jurors as to any racial prejudice they might entertain is “as a matter of constitutional law” reversible error. • If this is to be the rule by judicial legislation, in fairness to trial judges, state and federal, the rule should only be so promulgated for future cases.
The District Court concedes that the questions propounded on the general issue of bias and prejudice were exemplary in every respect “except the failure to specifically direct the attention of the jurors to the issue of racial prejudice.” However, if there are to be rules they should be clear and capable of objective application. In other words, it is easy to understand and apply a rule which requires a trial judge in every case in which there is a black defendant to inquire of each individual juror whether he would be adversely prejudiced against such a person because of his race. But is the trial judge duty bound to ask such a question in the absence of a request? If he asks the question sua sponte, the appeal in all probability will be on the ground that he injected the racial issue into the case — hence reversible error. If he fails to ask the question, the same result will obtain and, if counsel fails to make the request, incompetence of counsel will be the charge on the habeas corpus application.
*759The importance of appellate pronouncements in the field of trial procedure is because of the guidance they should give to trial judges. What are we telling the trial judge as to how he should conduct the voir dire on the next trial so as to avoid constitutional error?
A “next” trial can be assumed. Only a few years have elapsed since the first trial. The witnesses and their whereabouts in all probability are known. The facts supporting guilt as found on the first trial may be read in the two opinions of the Massachusetts Supreme Judicial Court.7 But juries, not courts, are to determine guilt or innocence and the method of selection of the jury will be the most important element initially.
Neither Aldridge,8 Ham, supra, the District Court opinion nor this court’s opinion will be of real value as guidelines. Aldridge and Ham indicate that questions regarding racial prejudice must be asked. And, although Ham and the majority state that the questions need not be “in any particular number” or form, Ham, 409 U.S. at 527, 93 S.Ct. 848, only an appellate court will be able to decide whether the future trial judge will have properly exercised that “broad discretion” with which appellate courts so liberally endow him.
If the courts are satisfied to accept “No” to the single question “Are you prejudiced against blacks?” and this colloquy is considered to be constitutionally sufficient, such a question should be permitted if counsel should choose to request it. But the courts are not so easily satisfied — and probably properly so. Few jurors will reveal the innermost workings of their minds — particularly in public. The mere “obtaining jurors’ assurances of impartiality is insufficient [to test that impartiality].”9 The courts have said that a prospective juror’s eligibility “should not be adjudged on that juror’s own assessment of self-righteousness without something more.”10
It is all very well to speak of a standard to be used in the exercise of discretion in passing upon requested inquiries as meeting “the essential demands of fairness.” Aldridge, supra, 283 U.S. at 310, 51 S.Ct. 470, but, what these demands may be, will only be known to the trial judges years later in the opinion of some appellate court.
Take for example a single instance derived from this case because it falls into the category of the “something more” field of inquiry. A proposed question submitted to the trial judge here followed the questions: “Do you have children? Do they go to public schools?” and was:
“16. If in private schools, is this a result of your feelings towards the number of blacks and Puerto Ricans in the school system?”
In view of certain situations recently reported in the public press existing in Eastern Massachusetts with respect to the public schools such a question might well be included in a probing group, including “Are you at all nervous about walking the streets of your town or city after dark?” Almost unlimited questions along this line can be conjured up for obtaining a true picture of the potential juror’s mind. To obtain such a picture the voir dire might well more properly be relegated to the psychiatrist.
However, our present concern must be this case. We are given some 120 pages of transcript devoted entirely to the trial judge’s efforts to obtain an impartial jury. Successive panels were interrogated. The defendants who are black stood before the prospective jurors. The trial judge was most specific as to “bias or prejudice” generally. The jurors knew when asked about prejudice that the defendants were black. Each juror *760was given an opportunity to approach the Bench and express whatever his own personal reasons for not wishing to serve. Any possible reluctance to express racial bias or prejudice in public was thus avoided. In fact two jurors' were excused because of prejudice; one in particular, because of racial prejudice. The ultimate jury consisted of 10 whites and 2 blacks. No incident has been pointed out to us which might indicate that this was not a normal and average American jury which heard the evidence and reached their verdict thereon. If there is to be a new voir dire rule, mandating upon request the injection of a racial prejudice issue into the case, I am not prepared to fault the trial judge for not knowing it before it was promulgated.
Finally, I am not unmindful of the fact that a distinguished court (the Massachusetts Supreme Judicial Court) has twice passed upon the issue of fair trial for this defendant. After the first af-firmance certiorari was granted and the case remanded for reconsideration in light of Ham. That reconsideration was given and again there was affirmance. Certiorari was denied, three Justices vigorously dissenting, as appears in the opinion of Mr. Justice Marshall. 414 U.S. 1080, 94 S.Ct. 599, 38 L.Ed.2d 486.
The Supreme Court has stated that denial of certiorari has no legal significance — at least as to the merits of the controversy. Nor would I question the sound philosophy behind such an interpretation. Two cases in particular in which the opinions were written by Mr. Justice Frankfurter clearly demonstrate that “such a denial (of certiorari) carries with it no implication whatever regarding the Court’s views on the merits of a case which it has declined to review.” Maryland v. Baltimore Radio Show, 338 U.S. 912, 919, 70 S.Ct. 252, 255, 94 L.Ed. 562 (1950). Again in 1953 the Supreme Court devoted itself in Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469 (1953), to the effect, if any, which might be attributed to denial of certiorari. In a separate opinion (pp. 488 — 497, 73 S.Ct. 397) Mr. Justice Frankfurter set forth most specifically the reasons why no effect should be given to denial. The many instances cited of petitions “rarely drawn by lawyers,” “almost unintelligible,” inadequate records, no clear statements of the issues, the lack of importance of the issues, the mere numerical quantity of the petitions, all justify the conclusion that “The denial of a writ of certiorari imports no expression of opinion upon the merits of the case, . ”11 Quite rightly did the Justice say: “The reasons why our denial of certiorari in the ordinary run of cases can be any number of things other than a decision on the merits are only multiplied by the circumstances of this class of petitions.” Brown, supra, at 497, 73 S.Ct. at 441. However, this very expression is pregnant with the possibility as Mr. Justice Jackson pointed out in his separate opinion that “There may be circumstances so extraordinary that I do not now think of them which would justify a departure from this rule, but the ordinary run-of-the-mill case certainly does not.” Brown, supra, at 545, 73 S.Ct. at 429.
This small opening in an otherwise seemingly impregnable fortress entitles one to peer into the interior — a hypothetical conference chamber in which consideration of certiorari in this case is being discussed. Ham for all practical purposes had just been decided. The constitutional issue of the “black” question presented by Ross was so clear that a remand was directed in light of Ham. When Ross next arrived it was in the same garb — no other questions, no procedural issues, no diminution in importance of the only issue — just the same single “black” question. If there were any doubt on the subject Mr. Justice Marshall must have made all conscious of the singleness of the issue in his dissent, Justices Douglas and Brennan joining. Under these circumstances I would be *761reluctant to characterize this case as an “ordinary run-of-the-mill case.” The intervening remand had not created a new issue. If the absence of the “black” question called for remand on the first petition, its continued absence must have been noted on the second. Very possibly the denial of the Ross second certiorari petition has no legal significance but in my opinion the scope and intent of voir dire in the specific field of bias and prejudice as presented here has great legal significance. If counsel are permitted to endeavor to obtain via the voir dire a juror’s commitment as to his views of prospective witnesses’ credibility I foresee countless future appeals arising therefrom.
For these reasons — but primarily because I believe that the petitioner received a fair trial in Massachusetts — I dissent and would reverse the granting of the writ.
. Commonwealth v. Ross, 282 N.E.2d 70 (1972) and 296 N.E.2d 810 (1973).
. Aldridge v. United States, 283 U.S. 308, 51 S.Ct. 470, 75 L.Ed. 1054 (1931).
. United States ex rel. Bloeth v. Denno, 313 F.2d 364 at 372 (2nd Cir. 1963), cert. denied, 372 U.S. 978, 83 S.Ct. 1112, 10 L.Ed.2d 143.
. Silverthorne v. United States, 400 F.2d 627, 639 (9th Cir. 1968). (Emphasis in original).
. United States v. Carver, 260 U.S. 482, 490, 43 S.Ct. 181, 182, 67 L.Ed. 361 (1923).