concurring.
I find this case to be difficult and troubling. Defendant was involved in what must fairly be characterized as a sensational killing in a rural county of some 30,000 people. The circumstances were dramatic — tensions and arguments between two local residents over the affections of a young woman, also part of that small community, resulting in the fatal shooting of one of the young men. There was a great deal of publicity in the media about this dramatic episode. Despite defendant’s understandable request for a change of venue, the motion was denied by the trial judge who admittedly knew the victim and had once represented the victim and had other casual associations with the victim’s family.
Defendant’s motion to recuse the trial judge was denied and the chief judge of the Ohio Supreme Court ruled that “[tjhese relationships are not sufficiently close nor recent enough to require the disqualification.” That issue is not before us on appeal despite the fact that relief was not granted by the state courts nor by the district court on Wolfe’s contention that this denial of recusal constituted reversible or constitutional error. This issue, however, is part of the unsettling background in this case along with the denial of a change of venue, indirectly related, I believe, with the refusal of that trial judge to grant challenges for cause to four jurors who were a part of the convicting jury.1
There seems to be little question but that defendant is entitled to four peremptory challenges in felony trials in Ohio (Ohio Rev.Code § 2945.21(A)(i) (1993)). Wolfe exercised all four of his peremptory challenges, one to a law enforcement officer, retired after may years as a local police chief, who might well have been excused for cause.2
Chief Judge Martin has set out the details of the basis for excusing the four jurors for cause, Mr. Dillon, Mrs. McGuire, Mrs. Hughes, and Mr. Blazer. There is no question but there was extensive pretrial publicity in this case and at least two of the four jurors in question were very familiar with this publicity. The majority opinion puts it correctly, I believe, that the relationships of the four were, by and large, “close” and/or “ongoing” with the parties involved with the case. Dillon indicated, as did Mrs. Willis, who was excused *504for cause, that he was doubtful about his ability to be impartial “because of [his] knowledge of ... the defendant and his family and also because of what [he] read.”
Mrs. McGuire stated that the victim’s family were “close friends,” and she did not know whether she could absolutely set this aside as a juror. Mr. Blazer indicated he would have trouble holding the state to a “beyond a reasonable doubt” standard. Mrs. Hughes repeated several times in response to the judge’s questions that she was “not sure” she could be fair and impartial but she “could try.”3
We ordinarily defer to the discretion of the trial judge to determine whether, during voir dire, an individual juror “could follow the law and be fair and impartial.” State v. Williams, 79 Ohio St.3d 1, 679 N.E.2d 646, 655 (Ohio 1997), cert. denied, 522 U.S. 1053, 118 S.Ct. 703, 139 L.Ed.2d 646 (1998); see also Wainwright v. Witt, 469 U.S. 412, 428, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985) (a death penalty case); State v. Wilson, 29 Ohio St.2d 203, 280 N.E.2d 915 (Ohio 1972). Witt emphasized the import of a trial judge’s opportunity during voir dire to weigh “demeanor or credibility” of the prospective jurors with respect to a court’s action on juror challenges. Id. at 428, 105 S.Ct. 844. Witt cites an old Supreme Court case, Reynolds v. United States, 98 U.S. (8 Otto) 145, 157, 25 L.Ed. 244 (1879), to the effect that “[c]are should, therefore, be taken in the reviewing court not to reverse the ruling below [on juror challenges] ... except in a clear case.” 469 U.S. at 428 n. 9, 105 S.Ct. 844. We note also that Witt involves a challenge in a death penalty case to excusing a potential juror.
With these admonitions in mind, and giving the trial judge what I believe to be due deference in this case, I believe this is a rare, clear case that compels us to affirm the district court’s reversal of the state trial judge’s challenged rulings. I join the district court’s “reluctance” in reaching a decision to grant habeas corpus on these grounds, thereby overruling the decisions of Ohio state courts on the issues in this case.
Finally, where the defendant had exercised all his peremptory challenges, it was error for the Ohio Court of Appeals in this case to require defendant to exercise all his challenges to the particular four in question or be denied relief.
To ensure that those who enter are purged of prejudice, both challenges for cause and the full complement of peremptory challenges are crucial. Therefore, as a general rule it is error for a court to force a party to exhaust his peremptory challenges on persons who should be excused for cause, for this has the effect of abridging the right to exercise peremptory challenges.
United States v. Nell, 526 F.2d 1223, 1229 (5th Cir.1976). We agree with Nell that the conduct of voir dire and exercise of the judge’s “broad discretion” on challenges, although entitled to deference, is “subject to the essential demands of fairness.” 576 F.2d at 1229 (quoting Aldridge v. United States, 283 U.S. 308, 310, 51 S.Ct. 470, 75 L.Ed. 1054 (1931)).
The failure of the judge to recuse himself and his denial of a change in venue motion may not have been reversible error, but these factors, together with the erroneous rulings on jury challenges for cause, require a grant of the writ of habeas corpus. I would strongly suggest, upon retrial of defendant Wolfe, that the trial judge consider carefully any further motion for a change of venue in light of this record.
BATCHELDER,concurring.
I concur in the lead opinion in this ease, and I agree with the views expressed by Judge Wellford in his separate concurrence. I write separately only to indicate that in light of the discussion in United States v. Martinez-Salazar, 528 U.S. 304, *505—, 120 S.Ct. 774, 780, 145 L.Ed.2d 792 (2000) (“The defendant in Ross, we therefore concluded, did not lose any right conferred by state law when he used one of his 9 challenges to remove a juror who should have been excused for cause”), I question the continued viability of the passage from the Fifth Circuit’s decision in United States v. Nell, 526 F.2d 1223, 1229 (5th Cir.1976), quoted by Judge Wellford.
. The trial judge acknowledged at one point: "we're in a small community and you hear matters, and ... you read things.”
. Former police chief Owens acknowledged that it would be difficult for him not to accept the testimony of sheriff’s deputies whom he knew would testify for the state.
. Mrs. Hughes added, significantly: "I don’t really feel comfortable ... doing this.”