Isaacs v. Kemp
| Decision Date | 31 January 1986 |
| Docket Number | 85-8277,Nos. 82-8017,82-8310 and 85-8202,s. 82-8017 |
| Citation | 782 F.2d 896 |
| Parties | Carl J. ISAACS and George Elder Dungee, Petitioners-Appellants, v. Ralph KEMP, Warden, Georgia State Prison, Respondent-Appellee. Carl J. ISAACS, Petitioner-Appellant, v. Ralph KEMP, Warden, Georgia State Prison, Respondent-Appellee. Wayne Carl COLEMAN, Petitioner-Appellant, v. Ralph KEMP, Warden, Georgia Diagnostic and Classification Center, Respondent-Appellee. George Elder DUNGEE, Petitioner-Appellant, v. Ralph KEMP, Warden, Georgia State Prison, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Appeals from the United States District Court for the Middle District of Georgia; J. Robert Elliott, Judge.
The Petition for Rehearing is DENIED and the Suggestion for Rehearing En Banc is also DENIED.
HILL, Circuit Judge, dissenting from denial of rehearing en banc, in which FAY, Circuit Judge, joins:
The court has ordered that these cases not be reheard en banc. From that order, I respectfully dissent. 1
I do not presume to dissent from the panel's judgments ordering that the writs be granted in these cases. Had we proceeded, en banc, to the further analysis I suggest below, the judgments might well have been the same. I would make no judgment on the merits absent counselling which should be offered to the full court. In my view, however, the full court could and should take the opportunity that these cases provide to clarify an area of constitutional law that is presently murky.
I have little doubt that the state court should have ordered a change of venue in these cases. The administration of justice must be even-handed and should be so perceived. Were we considering these cases on direct appeal from convictions in a federal court, I have little or no doubt that, in the exercise of our supervisory power, they should be reversed. In these habeas cases, however, we are required to determine whether state court proceedings were constitutional--nothing more. 2
It is clear to me that the panel undertook to exercise just this limited function. The panel obviously labored long and hard in the review of a massive record. The thorough re-creation of the publicity preceding the trials is a tribute to the court and to counsel. The judgment granting the writs rests upon the particular facts of these particular cases. We should, I submit, provide an analysis which would be helpful in future cases. Publicity--and the community feelings thereby expressed and engendered--should be more thoroughly analyzed for its constitutional significance than has been done in these cases or was done in Rideau v. Louisiana, 373 U.S. 723 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963), the leading authority thus far in the field.
The media plays an important role in our free society. I doubt that it would be contended that a well-informed forum is one that cannot conduct a constitutional criminal trial. When, if ever, does the accurate reporting of fact offend the administration of justice? I suppose that responsible media organizations and people would like to know. Clearly, judicial officers dedicated to the provision of fair trials would like to know. These issues are presented in these cases, and I regret our decision not to undertake a more helpful analysis.
The intensive review detailed in the panel opinion reveals several distinct categories of public reporting of what I take to be essentially accurate facts. Their accuracy, at least, is not questioned. I touch on a few of those categories. I suggest that we could and should analyze them separately.
Initially, the media reported how the law had been broken. Six members of the community had been systematically murdered. One had, before her execution, been repeatedly raped. Much of what was said then and thereafter concerned the details of the criminal acts which had taken place. The crimes were horrible, and those who read about them or heard about them and reported upon them were outraged.
I submit that it is meet and proper that our society and its members be outraged at the commission of crimes such as were committed by the petitioners in these cases. A community ought not be constitutionally disqualified as a forum for the administration of criminal justice because its people are conscious of crimes committed in the community and outraged by them. It does not offend the Constitution for public awareness of the consequences of crime to be heightened by reports of crimes--whether multiple murders, distribution of controlled substances, or driving while under the influence of drugs or alcohol. We ought never leave the impression that the Constitution demands a forum where the people are not biased or prejudiced against criminal conduct. A juror need not feel "neutral" about whether or not people should rob banks in order to sit in judgment on one accused of bank robbery.
These cases could never be tried before a jury unaware of the horror of the offenses for which the petitioners were on trial. The facts of the crime will inevitably be made known to the jurors at any trial, anywhere. Moreover, I find nothing improper in concern, even anger, on the part of potential jurors about crimes such as those at issue in this case. The publicity reporting the murders of the members of the Alday family and the strong feelings of outrage in the community over those crimes should be treated differently than other types of publicity that might more plausibly have affected the outcomes of the trials. I believe this category of publicity should be given little, if any, weight in determining whether a criminal defendant has received a fair trial. 3 I acknowledge that our panel apparently considered this category only to the extent that it found it to be evidence of prejudgment, contributing to a conclusion that the community was so inflamed that a fair trial could not be had. That may be proper. Yet, inasmuch as no jurors can serve in these cases, anywhere, without being immediately exposed to knowledge of the crimes, I feel that the full court should have reheard and, upon rehearing, determined whether or not any weight should be given to this community bias against crime.
While bias and prejudice against crime does not, in my view, disqualify a community from administering justice in a case in which the state has accused an individual of committing a crime, bias or prejudice against the accused stands on a different footing. We should have, therefore, examined publicity about the accused--the petitioners here--as a separate category of publicity. Further, I would identify and distinguish within that category two subcategories of publicity--(1) information that later is made known to the jury at trial, and (2) information that is not.
(1)
It appears that, in the discharge of their responsibility, the media reported diligently upon the work of law enforcement officials investigating the crimes, including the apprehension of those suspected of committing them. Evidence leading to the arrests and indictment of these individuals was made public as it came to light. In this area, a tension often develops between free press and fair trial concerns. It might better serve our desire to ensure the clinical sterility that we feel is most likely to result in a fair trial to allow no pre-trial reporting of the results of ongoing criminal investigations. Were that so, however, the people would suffer a lack of valuable information about whether public officials were discharging their responsibilities in a satisfactory manner. We tend in this nation to trust and believe in the value of an informed citizenry. In this case, the tension between free press and fair trial values was great, because the information obtained by law enforcement officials strongly supported the thesis that those arrested were in fact guilty. 4
We should have analyzed and evaluated the significance of this kind of publicity as a subcategory of publicity that is distinct in important respects from the category first discussed above. I apprehend that we should have done so with this fact in mind: Most of that which was reported, second hand, by the media was later properly reported, in detail, by those with first hand knowledge of the facts, as testimony before the juries that heard the cases; 5 inevitably, it will be so reported to any jury, anywhere, if the cases are re-tried. It is entirely proper for the jury to be made aware of this kind of information. It is its wide dissemination in advance of trial that is perceived to be the problem. Such publicity may be likened to a premature opening statement made by a prosecutor who says what the state will prove, but which is not proved save by evidence properly admitted at trial. Such pre-trial publicity should be appraised as a separate category from that which does not bear on the guilt or innocence of the defendants. Only after carefully examining each such item of publicity, aided by counsel, should we determine the weight it should be accorded in deciding whether a fair trial has been denied, perhaps placing heavy emphasis on whether the admitted information was disputed at trial. Here, again, the panel considered publicity in this category to the extent that it felt that the publicity demonstrated community prejudgment. The full court, by applying the analysis I suggest, could have attributed appropriate weight to it for future reference.
(2)
We should have taken particular note of that distinct subcategory of potentially prejudicial publicity concerning one or more of the defendants that was not admitted as evidence at trial. One defendant was said to have confessed to an earlier murder that occurred in Pennsylvania or Maryland. Unlawful earlier activities of the defendants said to have constituted a "crime spree" were...
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