568 F.2d 464 (5th Cir. 1978), 77-5200, United States v. Williams

Docket Nº:77-5200.
Citation:568 F.2d 464
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. George Keith WILLIAMS, Defendant-Appellant.
Case Date:February 27, 1978
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 464

568 F.2d 464 (5th Cir. 1978)

UNITED STATES of America, Plaintiff-Appellee,

v.

George Keith WILLIAMS, Defendant-Appellant.

No. 77-5200.

United States Court of Appeals, Fifth Circuit

February 27, 1978

Page 465

        Wayne S. Hyatt, Atlanta, Ga. (Court-appointed), for defendant-appellant.

        Wm. L. Harper, U. S. Atty., Atlanta, Ga., C. Brian McDonald, Atty., Drew S. Days, III, Asst. Atty. Gen., U. S. Dept. of Justice, Washington, D. C., for plaintiff-appellee.

        Appeal from the United States District Court for the Northern District of Georgia.

        Before BROWN, Chief Judge, and THORNBERRY and MORGAN, Circuit Judges.

        THORNBERRY, Circuit Judge:

        In February 1975, a 56-year-old illiterate maintenance worker was allegedly beaten by three deputy sheriffs and one policeman. Appellant Williams, then a deputy, and three other defendants were indicted by a federal grand jury in the Northern District of Georgia for violating the man's civil rights in contravention of 18 U.S.C. § 242. All four were convicted in a jury trial in May 1976, but the district court granted defendants' motion for a new trial. A second jury trial was held in early February 1977, and the four defendants were again convicted. Only Williams appeals.

        Three issues are presented to this court: (1) whether exposure of jurors, during the second trial, to news reports containing references to defendants' conviction in the first trial deprived appellant of a fair trial; (2) whether appellant waived his right to a 12-member jury; and (3) whether appellant was denied effective assistance of counsel because his attorney also represented the other defendants. For the reasons stated below, we reverse and remand for another trial.

        On the third day of the second trial, the government pointed out to the court that a local television news broadcast on the previous evening had included a story about the

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trial. The trial judge had seen the report, which was a "straight" news story 1 about the opening of the second trial. At the very end of the story was the statement that the four defendants had been convicted in a previous trial, but that a new trial had been granted because of "erroneous testimony." 2

        At the trial's outset, the jury had been instructed not to read, view, or listen to anything about the trial. When the court polled each juror individually 3 after learning of the newscast, however, five jurors admitted knowing of the report, but only two Jurors Richardson and Chase had actually seen it. 4 Their testimony was equivocal and somewhat inconsistent as to what they had learned from the news story, but it seems clear that they heard of the prior trial and its result. 5 In response to an inquiry from the court, both stated that the story would in no way influence their decision in the case.

        Defense counsel moved for a mistrial, but the motion was denied. Subsequently, the court gave the jury the usual instruction to disregard everything not heard in court. No specific instruction was given the two jurors to disregard the news report of the prior trial, nor were they instructed that the prior instructions were not evidence of guilt. However, the record contains no requests for such instructions. After the guilty verdict, defense counsel moved for

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judgment n. o. v. and for a new trial, but the motion was denied.

        The problem of prejudicial publicity is hardly unique to the age of modern journalism and media technology. In the mid-eighteenth century, Lord Chancellor Hardwicke utilized the contempt power when remarks threatened to prejudice a pending case. Roach v. Garvan, 26 Eng.Rep. 683 (Ch.1742). And just over a hundred years later, this observation was made of American society:

Ours is the greatest newspaper reading population in the world; not a man among us fit to serve as a juror, who does not read the newspapers. * * * In the case of a particularly audacious crime that has been widely discussed it is utterly impossible that any man of common intelligence, and not wholly secluded from society, should be found, who had not formed an opinion.

        Trial by Jury in New York, 9 L.Rep. 193, 198 (1846), quoted in ABA Standards Relating to Fair Trial and Free Press 21 (1968). Mark Twain addressed the issue in his book Roughing It (1872), recounting in his inimitable style "one of those sorrowful farces, in Virginia, which we call a jury trial." After describing how many upstanding citizens were disqualified on voir dire because they had read newspaper accounts of the murder, Twain wrote:

When the peremptory challenges were all exhausted, a jury of twelve men was impaneled a jury who swore they had neither heard, read, talked about, nor expressed an opinion concerning (the) murder. . . . It was a jury composed of two desperadoes, two low beer-house politicians, three barkeepers, two ranchmen who could not read, and three dull, stupid, human donkeys. . . .

The verdict rendered by this jury was, Not Guilty. What else could one expect?

        Remarkably similar sentiments were expressed two years later by the Pennsylvania Supreme Court, which feared that newspaper publicity might result in important cases being decided by jurors whose "dark minds have never been smitten by the rays of intelligence." O'Mara v. Commonwealth, 75 Pa. 424, 428 (1874).

        Compounding the problem has been the news media's penchant for extensively covering sensational trials. Perhaps the classic example is the 1935 trial of Bruno Richard Hauptmann, who was convicted for the kidnapping and murder of the 19-month-old son of aviator Charles Lindbergh. The defendant was once described in the press as a "thing lacking in human characteristics," and some 700 reporters including such renowned journalists as Walter Winchell flocked to the trial. 6 Similar coverage occurred at earlier trials involving persons who had caught the fancy of the press and public, 7 perhaps prompting H. L. Mencken's

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remark that newspapers have "debauched the courts, and connived at crime, and made justice in America a joke." 8

        Such press coverage has resulted in two broad classes of prejudicial publicity cases, and these categories occasionally overlap. The pretrial publicity cases have generally been the most notorious, including, for example, the My Lai massacre, Calley v. Callaway, 519 F.2d 184 (5 Cir. 1975), and the Watergate scandal, United States v. Haldeman, 181 U.S.App.D.C. 254, 559 F.2d 31 (1976), cert. denied, 431 U.S. 933, 97 S.Ct. 2641, 53 L.Ed.2d 250 (1977). The other type involves publicity during the trial, and studies indicate that the occasions on which potentially prejudicial material appears are considerably smaller in number during the trial than before. ABA Standards Relating to Fair Trial and Free Press 40 (1968); see also Jaffe, Trial by Newspaper, 40 N.Y.U.L.Rev. 504 (1965). The "overlap" has resulted in the so-called "media circus" cases in which there was both pretrial publicity and extensive coverage of the trial itself. E. g., Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966); Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965).

        Principles from the pretrial and "overlap" cases must not be haphazardly applied to cases involving only publicity that occurred during the trial. The "during trial" cases, though fewer in number, contain greater opportunities for prejudice. For example, information reported during the trial seems far more likely to remain in the mind of a juror exposed to it, and he may be more inclined to seek out this information when he is personally involved in the case. See Jaffe, supra at 522. Moreover, exposure of potential jurors to news accounts before trial need not result in an aborted proceeding, since the problem can be cured by a continuance or change of venue. 9 If the exposure occurs during the trial, however, the trial judge must squarely face the question of whether a fair trial is still possible. Consequently, a stricter standard should be employed in during-trial cases than in pretrial situations.

        Although during-trial publicity is not a new problem, 10 the Supreme Court has not dealt solely with its constitutional dimensions. The Sheppard and Estes cases presented the problem combined with massive pretrial publicity and the havoc created by the press' presence in the courtroom. However, the Court has examined this particular type of publicity in the context of its "supervisory power to formulate . . . proper standards for enforcement of the criminal law in the federal courts." Marshall v. United States, 360 U.S. 310, 313, 79

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S.Ct. 1171, 1173, 3 L.Ed.2d 1250 (1959). There the defendant was convicted of dispensing drugs without a prescription. During the trial, seven jurors were exposed to newspaper articles reporting that the defendant had previously been convicted of forgery, that he and his wife had been arrested for narcotics offenses, and that he had practiced medicine without a license. This information had been held inadmissible by the trial court. The seven jurors stated that they would not be influenced by the news accounts, and the judge refused to grant a mistrial. The Supreme Court reversed in a brief per curiam opinion, and some 16 years later stated that the principle behind Marshall, applicable only in the federal courts, is that "persons who have learned from news sources of a defendant's prior criminal record are presumed to be prejudiced." Murphy v. Florida, 421 U.S. 794, 798, 95 S.Ct. 2031, 2035, 44 L.Ed.2d 589 (1975).

        Although it has been suggested that Marshall has been discredited by a line of Supreme Court cases dealing with the constitutional dimensions of juror bias, 11 the Murphy decision is a clear indication of its continuing vitality,...

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