Irvin v. Dowd

• Decision Date: 12 November 1959
• Docket Number: No. 12080.,12080.
• Citation: 271 F.2d 552
• Parties: Leslie IRVIN, Petitioner-Appellant, v. Alfred F. DOWD, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

271 F.2d 552 (1959)

Leslie IRVIN, Petitioner-Appellant, v. Alfred F. DOWD, Warden, Respondent-Appellee.

No. 12080.

United States Court of Appeals Seventh Circuit.

October 23, 1959.

Rehearing Denied November 12, 1959.

Theodore Lockyear, Jr., James D. Lopp, Evansville, Ind., James D. Nafe, South Bend, Ind., for appellant.

Edwin K. Steers, Atty. Gen., of Indiana, Richard M. Givan, Deputy Atty. Gen., of Indiana, for appellee.

Before DUFFY, SCHNACKENBERG and CASTLE, Circuit Judges.

SCHNACKENBERG, Circuit Judge.

We heretofore, Irvin v. Dowd, 7 Cir., 251 F.2d 548, affirmed an order of the district court dismissing a petition for writ of habeas corpus filed by petitioner, who is also referred to herein as "defendant".¹ Subsequently our judgment was reversed and this case was remanded to this court, 359 U.S. 394, 79 S.Ct. 825, 3 L.Ed. 900. The federal Supreme Court held, 359 U.S. at page 405, 79 S.Ct. 825, that the state Supreme Court decided petitioner's federal constitutional claim. In remanding, 359 U.S. at page 407, 79 S.Ct. 825, the court left it to us to decide the merits of that claim or to remand to the district court for further consideration thereof. We have determined to decide the merits of that claim.

As stated in his brief, defendant's constitutional claim of denial of due process of law is based principally upon his allegations of bias and prejudice in the community where his trial occurred and a preconceived opinion of the trial jurors that defendant was guilty.

As the Supreme Court said, 359 U.S., at page 396, 79 S.Ct. at page 827:

"* * * 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, 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."

1. It cannot be denied that it was the duty of the state of Indiana to apprehend and punish the person who perpetrated the aforesaid murders. Upon a state there rests no more sacred duty than the protection of the lives of its citizens from criminal attack. At the same time the state owes a duty to any person charged with such crimes to afford him a fair trial as required by the federal constitution. What is a fair trial depends upon the circumstances existing at and prior to the trial. An accused's right to a fair trial is coexistent with the right of law-abiding citizens to lawful protection by their government. It is not surprising that, the more extensive the news coverage of a crime and the more wanton and unjustified the crime itself, the greater and more extensive is the indignation of citizens. Such indignation, varying in its degree according to the violence of the crime, and geographically extensive with the area of news distribution, undoubtedly causes many people to form impressions or beliefs as to the guilt or innocence of suspected or indicted persons. In these days of widely effective and thorough news distributing instrumentalities, such as the telephone, newspaper, radio and television, as well as rapid travel of persons by automobiles, trains and airplanes, hardly a person anywhere in a state, or in fact in the United States, is long ignorant of the details of crimes committed in any state (or in this country), unless he be completely mentally incompetent or is in solitary confinement in a jail. In fact, it may well be that into the latter place the grapevine reaches. We no longer live in a day when what happened in the next county was learned only by conversation with a traveling man or a brakeman on the way freight train. It is into this modern society with facilities for quick and broad news coverage that a person who commits six murders projects himself. When apprehended, he is entitled to a fair trial and is to be accorded due process of law, according to the existing circumstances.

Our problem in its last analysis is whether the general resentment of a people following the publication by news distributing media of information in regard to a series of murders may be relied upon to prevent the state from prosecuting a person indicted for these crimes, even though his trial be held before an unbiased judge and a jury is selected in accordance with established principles applicable to such a case. If the state is so prevented from trying such a person, it means that the commission within a state of a multiplicity of criminal acts, followed by the usual publicity, actually immunizes the offender from prosecution. We reject such a conclusion as the law of this circuit.

There was undoubtedly a prejudice against the person or persons who committed the series of murders, including that of Whitney Leslie Kerr on December 23, 1954 for which defendant was indicted. It was publicly announced that defendant had confessed that killing and five other murders.

There is no contention by defendant that the alleged bias and prejudice in the community affected the judge and interfered with his presiding as a fair jurist or that perjured evidence was produced against defendant at the trial. It is only in the jury box that counsel for defendant professes to find some effect of community prejudice damaging to defendant. It is true that some jurors, when questioned on their voir dire, admitted a preconceived opinion that he was guilty. History shows that this is not an unprecedented situation. Accordingly it has been met by the law. Usually there is a pertinent statute, such as that in effect in Indiana, § 9-1504, Burns' Indiana Statutes, Annotated, which reads:

"Challenges for cause. — The following shall be good causes for challenge to any person called as a juror in any criminal trial:

* * * * * *

"Second. That he has formed or expressed an opinion as to the guilt or innocence of the defendant. But if a person called as a juror states that he has formed or expressed an opinion as to the guilt or innocence of the defendant, the court or the parties shall thereupon proceed to examine such juror on oath as to the ground of such opinion; and if it appears to have been founded upon reading newspaper statements, communications, comments or reports, or upon rumors or hearsay, and not upon conversation with witnesses of the transaction, or reading reports of their testimony, or hearing them testify, and the juror states on oath that he feels able, notwithstanding such opinion, to render an impartial verdict upon the law and evidence, the court, if satisfied that he is impartial and will render such verdict, may, in its discretion, admit him as competent to serve in such case."

The record reveals that the trial judge applied this act in this case. With painstaking care, the court, in asking questions of jurors expressing an opinion as to the guilt or innocence of defendant, founded upon reading newspaper statements, communications, comments or reports, or upon rumors or hearsay, required each such juror to state on oath whether he felt able, notwithstanding such opinion, to render an impartial verdict upon the law and evidence. Several of those who answered in the affirmative were accepted upon the trial jury. Defendant now seeks to have us determine, as a matter of federal constitutional law, that this action by the trial court deprived defendant of a fair trial.

We have no right to question the intelligence, the truthfulness or the sincerity of these jurors, whose impartiality to render a verdict upon the law and the evidence was, after examination, determined to the trial judge's satisfaction, in the manner provided by the Indiana act.

A careful reading of the entire record convinces us that the jury which tried defendant was properly qualified as a fair and impartial fact-finding body.

In Reynolds v. United States, 98 U.S. 145, 155, 25 L.Ed. 244, the court said:

"* * * The theory of the law is that a juror who has formed an opinion cannot be impartial. Every opinion which he may entertain need not necessarily have that effect. In these days of newspaper enterprise and universal education, every case of public interest is almost, as a matter of necessity, brought to the attention of all the intelligent people in the vicinity, and scarcely any one can be found among those best fitted for jurors who has not read or heard of it, and who has not some impression or some opinion in respect to its merits. It is clear, therefore, that upon the trial of the issue of fact raised by a challenge for such cause the court will practically be called upon to determine whether the nature and strength of the opinion formed are such as in law necessarily to raise the presumption of partiality. The question thus presented is one of mixed law and fact, and to be tried, as far as the facts are concerned, like any other issue of that character, upon the evidence. The finding

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