366 U.S. 717 (1961), 41, Irvin v. Dowd

Docket Nº:No. 41
Citation:366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751
Party Name:Irvin v. Dowd
Case Date:June 05, 1961
Court:United States Supreme Court
 
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Page 717

366 U.S. 717 (1961)

81 S.Ct. 1639, 6 L.Ed.2d 751

Irvin

v.

Dowd

No. 41

United States Supreme Court

June 5, 1961

Argued November 9, 1960

CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Syllabus

Petitioner was tried in an Indiana State Court, convicted of murder, and sentenced to death. Six murders had been committed in the vicinity of Evansville, Ind., and they were extensively covered by news media in the locality, which aroused great excitement and indignation throughout Vanderburgh County, where Evansville is located, and adjoining Gibson County. Shortly after petitioner was arrested, the Prosecutor of Vanderburgh County and Evansville police officials issued press releases, which were intensively publicized, stating that petitioner had confessed to the six murders. When petitioner was indicted in Vanderburgh County, counsel appointed to defend him immediately sought a change of venue, which was granted, but to adjoining Gibson County. Alleging that the widespread and inflammatory publicity had also highly prejudiced the inhabitants of Gibson County against petitioner, his counsel sought a change of venue from that County to a county sufficiently removed from the Evansville locality to permit an unprejudiced and fair trial; but this was denied. At the trial, the jury panel consisted of 430 persons; 268 of these were excused for cause as having fixed opinions as to the guilt of petitioner, and 8 of the 12 who finally served on the jury admitted that they thought petitioner was guilty, but each indicated that, notwithstanding his opinion, he could render an impartial verdict. After petitioner's conviction had been sustained by the State Supreme Court, he applied to a Federal District Court for a writ of habeas corpus, which was denied.

Held: Petitioner was not accorded a fair and impartial trial, to which he was entitled under the Due Process Clause of the Fourteenth Amendment; his conviction is void; the judgment denying habeas corpus is vacated, and the case is remanded to the District Court for further proceedings affording the State a reasonable time to retry petitioner. Pp. 718-729.

(a) Since the State Supreme Court has held that, where an attempt has been made to secure an impartial jury by a change in venue, but it appears that such a jury could not be obtained in the

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county to which the venue was changed, it is the duty of the court to grant a second change of venue in order to afford the accused a trial by an impartial jury, a state statute purporting to permit only one change of venue is not, on its face, subject to attack on due process grounds. Pp. 720-721.

(b) Failure of a State to accord a fair hearing to one accused of a crime violates the Due Process Clause of the Fourteenth Amendment, and a trial by jury is not fair unless the jury is impartial. Pp. 721-722.

(c) In the circumstances of this case, it was the duty of the Federal Court of Appeals to evaluate independently the voir dire testimony of the impaneled jurors. Pp. 722-723.

(d) On the record in this case, it cannot be said that petitioner was accorded a fair trial by an impartial jury. Pp. 723-728.

(e) Petitioner is entitled to be freed from detention and sentence of death pursuant to the void judgment; but he is still subject to custody under the indictment; he may be retried under this or another indictment, and the District Court should allow the State a reasonable time in which to retry him. Pp. 728-729.

271 F.2d 552, judgment vacated and cause remanded.

CLARK, J., lead opinion

MR. JUSTICE CLARK delivered the opinion of the Court.

This is a habeas corpus proceeding, brought to test the validity of petitioner's conviction of murder and sentence of death in the Circuit Court of Gibson County, Indiana. The Indiana Supreme Court affirmed the conviction in Irvin v. State, 236 Ind. 384, 139 N.E.2d 898, and we denied direct review by certiorari "without prejudice to filing for federal habeas corpus after exhausting state remedies." 353 U.S. 948. Petitioner immediately

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sought a writ of habeas corpus, under 28 U.S.C. § 2241,1 in the District Court for the Northern District of Indiana claiming that his conviction had been obtained in violation of the Fourteenth Amendment in that he did not receive a fair trial. That court dismissed the proceeding on the ground that petitioner had failed to exhaust his state remedies. 153 F.Supp. 531. On appeal, the Court of Appeals for the Seventh Circuit affirmed the dismissal. [81 S.Ct. 1641] 251 F.2d 548. We granted certiorari, 356 U.S. 948, and remanded to the Court of Appeals for decision on the merits or remand to the District Court for reconsideration. 359 U.S. 394. The Court of Appeals retained jurisdiction, and decided the claim adversely to petitioner. 271 F.2d 552. We granted certiorari, 361 U.S. 959.

As stated in the former opinion, 359 U.S. at 396-397:

The constitutional claim arises in this way. Six murders were committed in the vicinity of Evansville, Indiana, two in December, 1954, and four in March, 1955. The crimes, extensively covered by news media in the locality, aroused great excitement and indignation throughout Vanderburgh County, where Evansville is located, and adjoining Gibson County, a rural county of approximately 30,000 inhabitants. The petitioner was arrested on April 8, 1955. Shortly thereafter, the Prosecutor of Vanderburgh County and Evansville police officials issued press releases

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which were intensively publicized, stating that the petitioner had confessed to the six murders. The Vanderburgh County Grand Jury soon indicted the petitioner for the murder which resulted in his conviction. This was the murder of Whitney Wesley Kerr allegedly committed in Vanderburgh County on December 23, 1954. Counsel appointed to defend petitioner immediately sought a change of venue from Vanderburgh County, which was granted, but to adjoining Gibson County. Alleging that the widespread and inflammatory publicity had also highly prejudiced the inhabitants of Gibson County against the petitioner, counsel, on October 29, 1955, sought another change of venue, from Gibson County to a county sufficiently removed from the Evansville locality that a fair trial would not be prejudiced. The motion was denied, apparently because the pertinent Indiana statute allows only a single change of venue.

During the course of the voir dire examination, which lasted some four weeks, petitioner filed two more motions for a change of venue and eight motions for continuances. All were denied.

At the outset, we are met with the Indiana statute providing that only one change of venue shall be granted "from the county" wherein the offense was committed.2 Since petitioner had already been afforded one change of venue, and had been denied further changes solely on the basis of the statute, he attacked its constitutionality. The

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Court of Appeals upheld its validity. However, in the light of Gannon v. Porter Circuit Court, 239 Ind. 637, 159 N.E.2d 713, we do not believe that argument poses a serious problem. There, the Indiana Supreme Court held that, if it was

made to appear after attempt has actually been made to secure an impartial jury that such jury could not be obtained in the county of present venue . . . , it becomes the duty of the judiciary to provide to every accused a public trial by an impartial jury, even though, to do so, the court must grant a second change of venue, and thus contravene [the statute]. . . .

239 Ind. at 642, 159 N.E.2d at 715. The prosecution attempts to distinguish that case on [81 S.Ct. 1642] the ground that the District Attorney there conceded that a fair trial could not be had in La Porte County, and that the court, therefore, properly ordered a second change of venue despite the language of the statute. Inasmuch as the statute says nothing of concessions, we do not believe that the Indiana Supreme Court conditions the duty of the judiciary to transfer a case to another county solely upon the representation by the prosecutor -- regardless of the trial court's own estimate of local conditions -- that an impartial jury may not be impaneled. As we read Gannon, it stands for the proposition that the necessity for transfer will depend upon the totality of the surrounding facts. Under this construction, the statute is not, on its face, subject to attack on due process grounds.

England, from whom the Western World has largely taken its concepts of individual liberty and of the dignity and worth of every man, has bequeathed to us safeguards for their preservation, the most priceless of which is that of trial by jury. This right has become as much American as it was once the most English. Although this Court has said that the Fourteenth Amendment does not demand the use of jury trials in a State's criminal procedure, Fay v. New York, 332 U.S. 261; Palko v. Connecticut, 302 U.S. 319, every State has constitutionally provided trial by

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jury. See Columbia University Legislative Drafting Research Fund, Index Digest of State Constitutions, 578-579 (1959). In essence, the right to jury trial guarantees to the criminally accused a fair trial by a panel of impartial, "indifferent" jurors. The failure to accord an accused a fair hearing violates even the minimal standards of due process. In re Oliver, 333 U.S. 257; Tumey v. Ohio, 273 U.S. 510. "A fair trial in a fair tribunal is a basic requirement of due process." In re Murchison, 349 U.S. 133, 136. In the ultimate analysis, only the jury can strip a man of his liberty or his life. In the language of Lord Coke, a juror must be as "indifferent as he stands unsworne." Co.Litt. 155b. His verdict must be based upon the evidence developed at the trial. Cf....

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