dissenting:
I dissent from part 3 of the majority’s opinion and from that portion of part 1 holding that no facts were pleaded from which it could be inferred that petitioner was tried before a hostile jury or in a hostile community. I would hold that the trial court’s refusal to grant a change of venue denied Bashor due process of law. See Rideau v. Louisiana, 373 U.S. 723, 726, 83 S.Ct. 1417, 1419, 10 L.Ed.2d 663 (1963). The due process clause and the sixth amendment entitle criminal defendants to an impartial and disinterested jury. United States v. Hendrix, 549 F.2d 1225, 1227 (9th Cir.) cert. denied, 434 U.S. 818, 98 S.Ct. 58, 54 L.Ed.2d 74 (1977); see Murphy v. Florida, 421 U.S. 794, 797, 95 S.Ct. 2031, 2034, 44 L.Ed.2d 589 (1975); Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751 (1961). The majority recognizes that due process requires a change of venue when the degree of prejudice in the community makes it impossible to impanel an impartial jury. The majority concludes, however, that the voir dire proceedings were constitutionally adequate, that an impartial jury was, in fact, selected and that, therefore, Bashor received a fair trial. On the record before us, that conclusion is insupportable.
The record reveals that the trial judge reserved ruling on the change of venue motion until after he completed voir dire. At that time, the totality of the circumstances reflected in the evidence before *1242him demonstrated that the community was “permeated with hostility toward the defendant.” Groppi v. Wisconsin, 400 U.S. 505, 510, 91 S.Ct. 490, 493, 27 L.Ed.2d 571 (1971). The homicide occurred in a very small community;1 the crime was big news. The voir dire testimony indicates that in addition to receiving newspaper and radio publicity, the homicide was the subject of widespread, persistent rumors and gossip.2 The passions of the community were sufficiently inflamed that the judge who released Bashor on bail pending trial determined that it would not be safe for him to remain in the county. I find Montana Supreme Court Justice Sheehy’s dissenting opinion on the venue issue in this case compelling:
The newspaper article using unfounded facts to portray the incident as an old west shoot-out together with the news broadcast over radio station KSEN created a climate of opinion in the county which is evidenced by the several calls received by the Toole County Sheriffs Office to determine whether the defendant had been released from jail on bond, and making known the callers’ objections if the defendant was to be released. The justice of the peace who set the bail bond at $50,000 received thereafter an anonymous telephone call indicating that the defendant would be shot if he were released. The situation was bad enough that when the defendant was released on bond, the judge made it a condition of his release that he leave Glacier and Toole counties, except for court appearances, for his own protection. The caretaker who managed the Bashor property in Bashor’s absence was then threatened and intimidated.
State v. Bashor, 614 P.2d 470, 487-88 (Mont.1980) (Sheehy, J., dissenting).
The trial court disqualified 29 of 60 jurors for cause. Several testified that they had been close friends of the victim. Others indicated they had formed the opinion that Bashor was guilty and were not certain they could put that opinion aside in their deliberations. Indeed, 13 of the 29 disqualifications for cause were for stated bias. Additional prospective jurors excused for cause other than bias testified that they felt sufficient prejudice that they would be unable to be fair. The transcript of the voir dire examination reveals that, in instances in which counsel failed to stipulate to the dismissal of prospective jurors with stated bias, the trial judge questioned the prospective jurors in an attempt to persuade them to set their biases aside.3 The judge denied challenges for cause of *1243the two prospective jurors he succeeded in rehabilitating.
In United States v. Allsup, 566 F.2d 68, 71 (9th Cir.1977), this court stated:
A court must excuse a prospective jur- or if actual bias is discovered during voir dire. Bias can be revealed by a juror’s express admission of that fact, but, more *1244frequently, jurors are reluctant to admit actual bias and the reality of their biased attitudes must be revealed by circumstantial evidence.
See also Murphy v. Florida, 421 U.S. at 800, 95 S.Ct. at 2036 (“the juror’s assurances that he is equal to this task cannot be dispositive of the accused’s rights”); Irvin v. Dowd, 366 U.S. at 728, 81 S.Ct. at 1645. The record demonstrates that Bashor’s trial court did not adhere to this standard and could not have filled the jury box if it had. The frequent expressions of firmly held convictions of Bashor’s guilt themselves suggest that other jurors were subject to unexpressed bias. See Murphy v. Florida, 421 U.S. at 803, 95 S.Ct. at 2037 (“In a community where most veniremen will admit to a disqualifying prejudice, the reliability of the others’ protestations may be drawn into question; for it is then more probable that they are a part of a community deeply hostile to the accused, and more likely that they may unwittingly have been influenced by it.”). Even when the pervasive prejudice reflected in the testimony of jurors excused for cause is disregarded, the record demonstrates that the remaining panel lacked the constitutionally required impartiality. At the time the trial court denied the motion for change of venue, it had already ruled on all challenges for cause. The court knew that the prospective jurors remaining on the panel included several who had testified that local rumor reflected what was, in essence, the prosecution’s version of the case, two who had testified they knew and would be inclined to believe the prosecution’s witnesses, and six friends or business associates of the victim’s. The jury that actually served included one juror who had been a friend of the victim’s and who testified that he had heard that Bashor shot the victim in cold blood because of a woman; another juror who testified he’d heard the same story; one juror who testified that she knew that Bashor had shot the victim and would not vote to acquit him unless he proved to her that he’d done so in self defense; a probation officer who worked with the prosecuting attorney; the probation officer's husband, who had been a business associate of the victim’s; and juror Pettigrew, who had expressed moral reservations about self-defense. As the majority notes, Pettigrew felt very close to the victim’s daughter, Donna, who had been her student. Indeed, Pettigrew indicated she’d paid particular attention to accounts of the shooting because of her relationship with Donna. The majority fails to note that Pettigrew also testified that she’d known Donna’s sister Brenda for three years. Pettigrew had, in fact, indicated that she believed she would be unable to listen impartially to Brenda’s testimony. The prosecution called Brenda as the final witness for its case in chief. Her testimony strongly corroborated the prosecution’s version of the facts.
“If only one juror is unduly biased or prejudiced or improperly influenced, the criminal defendant is denied his sixth amendment right to an impartial [jury] panel.” United States v. Hendrix, 549 F.2d at 1227; accord United States v. Eubanks, 591 F.2d 513, 517 (9th Cir.1977). Constitutionally impermissible prejudice comprises more than boldly stated bias, and may be presumed from the “ ‘potential for substantial emotional involvement’ inherent in certain relationships.” Id. (quoting United States v. Allsup, 566 F.2d at 71-72). After a careful review of the record in light of our precedents, I conclude that the seating of juror Pettigrew, without more, would suffice to warrant reversal. A juror who has expressed both a hostility to the defendant’s defense and revealed an emotional attachment to the victim’s daughter that the juror herself fears may disable her in her deliberations is a biased juror. The record reflects, however, that juror Pettigrew’s partiality was merely one of many “indications in the totality of the circumstances” that Bashor’s trial “was not fundamentally fair.” Murphy v. Florida, 421 U.S. at 799, 95 S.Ct. at 2035.
From the evidence before the trial court at the time it denied Bashor’s change of venue motion, I conclude that it is manifest that Bashor could not have received a fair trial. My conclusion finds support in *1245events transpiring during the course of the trial. Bashor presented evidence to the jury in support of a claim of self-defense. Bashor’s testimony was the key evidence in his case. A courtroom disturbance interrupted Bashor’s recounting of the events that resulted in the victim’s death. The disturbance impelled the judge to threaten to clear the courtroom before allowing Bashor’s testimony to continue. The majority concludes that because the trial judge promptly controlled the outburst, it adds nothing to Bashor’s claim that community hostility precluded a fair trial. The majority appears not to consider the potential prejudicial effect of such an outburst on the jury’s reception of Bashor’s testimony. In view of what I believe to be the ample evidence in the record of community prejudice, I find disturbing the majority’s willingness to dismiss this additional evidence as insignificant.4
The majority's error lies in its insistence upon viewing each of Bashor’s allegations in isolation, ignoring the Supreme Court’s command to examine “the totality of the circumstances.” Dobbert v. Florida, 432 U.S. 282, 303, 97 S.Ct. 2290, 2303, 53 L.Ed.2d 344 (1977); Murphy v. Florida, 421 U.S. at 799, 95 S.Ct. at 2035. The majority concludes that no single allegation demonstrates the extent of community prejudice sufficient to find a denial of due process. An examination of the totality of the circumstances reflected in the record, however, reveals a manifest pattern of community prejudice that precluded the impanelling of an impartial jury. I would reverse.
. The county's population was less than 6,000.
. The majority appears to infer that because most of the prospective jurors had forgotten the details of the newspaper and radio accounts of the homicide, the pretrial publicity had no prejudicial effect on the jury. Several prospective jurors indicated in voir dire, however, that community gossip about the crime continued. The majority fails to consider the prejudicial effect of the pervasive talk about the incident and the upcoming trial reflected in the record.
. For example, Bashor's counsel challenged prospective juror Benjamin for cause after she testified that she had heard that Bashor had shot the victim down in cold blood and she felt that if Bashor claimed he'd been acting in self-defense he would have to prove it to her beyond a shadow of a doubt. The court excused Benjamin only after failing to rehabilitate her during the following examination:
The Court: Mrs. Benjamin, have you ever had occasion to come through the front door of this courthouse?
A. The front door? Yes, I did today.
The Court: Did you happen to glance above the doorway and see what is up there?
A. No. Oh, I may have.
The Court: Well, in the stone there is chiseled a scale. That scale is symbolic of the concept of justice. It is evenly balanced. In any case, civil or criminal, everybody comes into court with an evenly balanced scale. Now in this case if the defendant should decide to present a defense, and if that defense should be self defense, he is obligated by the law, by a preponderance of the evidence, to prove his position. Just a little bit. If he puts the scale off balance just a little bit he has carried his burden of proof. On the other hand, in this case the State cannot obtain a conviction unless they prove, beyond a reasonable doubt, that the defendant is guilty. Do you understand those positions? It is a matter of degree — a little bit or a big bit. Do you understand that?
A. Yes, I understand what you say.
The Court: You indicated to both the state and the defense that you could not be convinced in your own mind unless there was *1243proof beyond the shadow of a doubt. Of course, the law isn’t that. The law doesn’t require this defendant to prove his defense, if he should select a defense, beyond the shadow of a doubt. The law does not require the state to prove its case against the defendant beyond a shadow of a doubt. If it went to beyond a shadow of a doubt the scales would be like that — clear down. There are very few things and maybe nothing that can be proved beyond a shadow of a doubt. If you and I wanted to, we could doubt whether the sun was going to come up tomorrow, and neither one of us could prove that the sun would not come up. So that burden of proof beyond a shadow of a doubt is not possible in most cases. Do you understand that?
A. Yes.
The Court: Now if there was a feeling that the State had not proven its case beyond a shadow of a doubt then you could vote, I suppose, that the defendant was innocent, is that right?
A. Well, I suppose I would say yes. On the scale, I think in my mind, where you say the defendant is like this, and the state is like this — probably in my mind I would feel that each one should be equal. If the defendant had to make a proof it would not be up and down, like this, hut his proof would have to play the balance as much as the state’s proof. The Court: All right. Of course, that isn’t the law. We aren’t trying to embarass you, of course, Mrs. Benjamin and—
A. No, and I understand that.
The Court: You see, our forefathers decided, by the adoption of our constitution, how this nation would be run, and following that adoption this state was created and the people of this state in 1889 adopted their own constitution. In 1972 the people of our state changed their constitution. So the law, of course, is the Constitution of the United States, the Constitution of the State of Montana, the legislative enactments that our legislature passes, and the judicial decisions, and they all say that a defendant in a criminal case is presumed to be innocent and that he has no obligation to present any evidence whatsoever. Now, of course, other countries have different systems of law and justice. For example, in Hitler’s Germany every defendant was guilty, once arrested, and it was the Court's obligation to the state to make sure to find the defendant guilty. The German government was very efficient. They built excellent highways and war machinery and had very speedy justice. Under the German system we wouldn’t have had to spend the time that we have spent here attempting to select a fair and impartial jury, because once the arrest was made the defendant would have been guilty unless he could prove beyond a shadow of a doubt that he was innocent. But that is not our system of justice, and that is why it is important as well as necessary to know what your feelings are, because no one in this room really knows how your mind works and what your opinions are. No one knows that except you, and so we have to ask you questions, of course.
A. Yes.
The Court: There is nothing immoral or illegal with disagreeing with' the American law, and a lot of people do. We are interested in determining whether you agree with- the American law and if you will follow it, and if you tell us that you disagree with it and won’t follow it then you will be excused from jury duty, and we will not embarass you in any way. Now what we are trying to determine here is, No. 1, will you follow the law of the land as stated by me in the instructions? even though you may not like the law or disagree with it, will you follow it? That’s one question. Question No. 2 is have you a preconceived determination in your own mind as this time as to the defendant’s guilt? In other words do you believe the defendant is guilty right now as you sit here? I will ask you that now.
A. Yes, I would say likely.
The Court: And, therefore, it would take evidence on his part to prove he was innocent, wouldn’t it?
A. Yes.
The Court: Of course, that isn’t the law of this country.
A. No.
The Court: So what you are really saying is that you are sorry, and you can go to the church camp.
A. Well, I didn’t say these things just to—
The Court: No, I'm not accusing you of that or suggesting that. I am saying that it is only through your personal integrity and honesty that we can find a fair and impartial jury and an unbiased jury, and that is what the law of this land requires.
A. Yes.
The Court: It would be of no avail to select a juror that had already decided this case.
A. That’s true.
The Court: That is what the law requires, a fair and impartial and unbiased jury, and that is what we are attempting to do. You need not feel in any way that you haven’t lived up to your civic responsibility, and we commend you for your honesty. You are excused now and need not come back.
A. Thank you.
. At a minimum, the majority should require an evidentiary hearing to determine the extent and nature of the disturbance before deciding that it adds nothing of significance to Bashor’s allegations of community prejudice.