dissenting.
The District Court declined to grant an evidentiary hearing on the change of venue and the shackling issues. I respectfully dissent from the opinion of the Court on these issues because I believe we should require an evidentiary hearing on this case. We do not know enough about the facts of the case to determine the issues.
We do not have before us in the record any significant factual development on the change of venue issue except the transcript of the voir dire. The transcript shows that most of the jurors — nine out of twelve— clearly thought the defendant was guilty based upon what they had read and heard about the crime but that no juror raised a hand when asked by the judge if they could not lay those opinions aside. We do not have before us the pretrial publicity itself or any other facts to show the basis for the state court’s position or the District Court’s refusal to conduct an evidentiary hearing before dismissing the case.
The same is true of the shackling issue. We do not know what the state judge based his decision on except the nature of the crime and the recommendation of the local sheriff. I would require an evidentia-ry hearing in order to determine whether presenting the defendant to the jury every day in a shackled condition was justified and whether it reinforced the juror’s previously stated opinion before hearing the evidence that the defendant was guilty.
Although the facts on the surface strongly suggest that the defendant committed the terrible crime with which he was charged, the state must observe due process in obtaining a conviction. There is a real question about whether due process was observed on the change of venue question and the shackling question. I am unable to apply the law to the facts of this case without knowing in more detail what the facts are.
Whether due process is observed is not a “discretionary” matter with the state court and with the District Court, as our Court’s opinion sometimes seems to suggest. We have not adequately performed our review function in this case by simply indulging in the presumption that the state court and the District Court below exercised its discretion appropriately. We do not have a record that permits us to apply the law on change of venue and shackling contained in the cases cited by the court in its opinion.