Ross v. Ristaino, 74-1222

Citation508 F.2d 754
Decision Date31 December 1974
Docket NumberNo. 74-1222,74-1222
PartiesJames ROSS, Jr., Petitioner-Appellee, v. Theodore RISTAINO et al., Respondents-Appellants.
CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)

Before COFFIN, Chief Judge, McENTEE, Circuit Judge, and MOORE, * Senior Circuit Judge.

McENTEE, Circuit Judge.

We are required in this case to decide whether it was a denial of due process, where the defendant was a black man accused of violent crimes against a white security officer, for a state court judge to deny a defense request to interrogate prospective jurors specifically on the issue of racial prejudice. 1

The Commonwealth of Massachusetts appeals from a memorandum and order entered by the district court granting a writ of habeas corpus to appellee, who was convicted of armed robbery, assault and battery by means of a dangerous weapon, and assault and battery with intent to murder. The Massachusetts Supreme Judicial Court unanimously affirmed these convictions, Commonwealth v. Ross, 1972 Mass.Adv.Sh. 873, 282 N.E.2d 70, but the United States Supreme Court granted certiorari, vacated the judgment and remanded the case for further consideration in light of Ham v. South Carolina, 409 U.S. 524, 93 S.Ct. 848, 35 L.Ed.2d 46 (1973). Ross v. Massachusetts, 410 U.S. 901, 93 S.Ct. 968, 35 L.Ed.2d 265 (1973). On remand the Supreme Judicial Court held that Ham did not affect the result reached in its earlier deliberation, Commonwealth v. Ross, 1973 Mass.Adv.Sh. 839,296 N.E.2d 810. 2 Ross sought a writ of habeas corpus from the district court, which the court granted, saying:

'The questions propounded to the jurors in the present case were directed to the general issue of bias and prejudice, and were far more extensive and carefully worded than those given in Aldridge (v. United States, 283 U.S. 308, 51 S.Ct. 470, 75 L.Ed. 1054 (1931),) and Ham. They were exemplary in every respect, except the failure to specifically direct the attention of the jurors to the issue of racial prejudice. In substance, they were no different than the ones given in Ham. The fact that one juror responded that he suffered from racial prejudice and was excused does not cover the situation, because his perception cannot be imputed to the twelve who were chosen.

'In the instant case, there was a white victim. The offense in Ham was victimless, i.e., possession of marijuana. The likelihood of infection of the verdict was at least as great as it was in Ham . . .. The petitioner had a constitutional right to have the issue of racial prejudice specifically called to the attention of the prospective jurors on the voir dire examination.'

In Ham v. South Carolina, supra, the defendant was a black civil rights leader charged with possession of marijuana. His defense was that the police were out to get him and were framing him on the drug charge. His counsel requested the judge to ask on voir dire two questions designed to ferret out any possible racial prejudice against the defendant. 3 The judge did put three general questions to the prospective jurors on the issue of bias, but he refused to ask any question directed specifically to racial prejudice. The Supreme Court, in a unanimous opinion, held 'that the Fourteenth Amendment required the judge in this case to interrogate the jurors upon the subject of racial prejudice.' 409 U.S. at 527, 93 S.Ct. at 850. The contours of the Ham decision were not sharply defined by the Court. Justice Rehnquist's opinion did not explicitly state that whenever a black defendant requests the trial judge to inquire specifically on the issue of racial prejudice on voir dire the trial judge must do so. Nor did the opinion explicitly state that the defense request for specific questions directed to racial prejudice need only be honored where the defendant was a civil rights leader or other 'special target of racial prejudice,' 4 which was the construction the Supreme Judicial Court gave Ham. 5 Commonwealth v. Ross, 1973 Mass. Adv.Sh. 839, 296 N.E.2d 810.

Under the view we take of the facts in this case, however, we are not required to resolve this ambiguity. In Ham the defendant was a civil rights leader, while in this case the black defendant is for the purpose of this inquiry an ordinary black citizen. But in this case, the charges against the defendant involved violence against a white, not a victimless crime like possession of marijuana. Moreover, the white victim, a security officer at Boston University, had a status close to that of a police officer. In addition, the eyewitness testimony of a white gas station attendant was a major part of the state's case against Ross. On these facts the district court was not in error in concluding that 'the likelihood of infection of the verdict (by racial prejudice) was at least as great as it was in Ham.' In effect, the court held that a black defendant charged with violent crimes against a white security officer would be likely to be a special target of racial prejudice.

Our dissenting brother suggests that the rule of Ham should only apply to cases brought to trial after the date Ham was decided. However, we do not feel the writ should be denied on the ground that Ham should not be given retroactive application. The Supreme Court implicitly decided that Ham applied to this case when it summarily vacated the judgment of the Supreme Judicial Court of Massachusetts and remanded the case to that court for reconsideration in light of Ham. See Ross v. Massachusetts, 410 U.S. 901, 93 S.Ct. 968, 35 L.Ed.2d 265 (1973).

It is not a significant distinction between this case and Ham that Ham took the stand and put his credibility in issue, while Ross did not take the stand. If a juror is prejudiced against blacks, he would not be able to appraise the defense offered by the black defendant impartially, whether or not that defense included the defendant's taking the stand. Nor is it particularly relevant that the trial court here doubted that questions directed to discovering racial prejudice would result in any admissions of bias. This objection would apply equally well to other questions the court is required to put to proposed jurors. See Mass.Gen.Laws Ann. c. 234, 28 (Supp.1974). For example, a proposed juror biased by pretrial publicity might aver he is not biased or a juror who believes anyone indicted is guilty as charged might answer that he believes the defendant is innocent until proven guilty, yet we do not allow the possibility of a false answer to serve as an excuse for not asking these questions.

By deciding in this case that the trial judge should have questioned the proposed jurors specifically on the question of racial prejudice, we do not hold that he had to ask the specific questions sought by Ross's counsel. 'The trial judge was not required to put the question in any particular form, or to ask any particular number of questions on the subject, simply because requested to do so by petitioner.' Ham v. South Carolina, supra, 409 U.S. at 527, 93 S.Ct. at 850. See Featherston v. United States, 491 F.2d 96 (5th Cir.), cert. denied, 417 U.S. 971, 94 S.Ct. 3176, 41 L.Ed.2d 1142 (1974). The trial judge has broad discretion as to the questions to be asked regarding racial prejudice. 6

The writ of habeas corpus shall issue unless within 90 days from the date of this opinion the Commonwealth has either instituted proceedings to retry the petitioner or applied for a writ of certiorari. If certiorari is sought and granted, the issuance of the writ of habeas corpus shall be stayed pending further order of the Supreme Court. If certiorari is sought and denied, the writ of habeas corpus shall issue unless the Commonwealth has instituted proceedings to retry the petitioner within 30 days after the date certiorari is denied.

So ordered.

MOORE, Circuit Judge (dissenting).

The sole issue on this appeal relates to the voir dire examination of prospective trial jurors during which the trial judge denied a specific request on behalf of the petitioner, Ross, to ask a particular question, accurately stated by the majority as follows: 'Are there any of you who believe that a white person is more likely to be telling the truth than a black person?' No question was sought by Ross' counsel addressed to prejudice against Ross as a black. Other questions addressed to prejudice against blacks were requested by co-defendants not involved on this appeal. In my opinion the request of Ross' counsel cannot be given the broad interpretation that the majority has given in saying that it was 'a defense request to interrogate prospective jurors specifically on the issue of racial prejudice.'

The majority hold, as did the District Court, that the failure of the trial judge to question 'the proposed jurors specifically on the question of racial prejudice' amounted to a denial of constitutional due process. In so holding, they rely primarily on the recent Supreme Court decision in Ham v. South Carolina, 409 U.S. 524, 93 S.Ct. 848, 35 L.Ed.2d 46 (1973), although they concede that the Ham opinion 'did not explicitly state that whenever a black defendant requests the trial judge to inquire specifically on the issue of racial prejudice on voir dire the trial judge must do so.'

If the District Court be correct in saying that 'The petitioner had a constitutional right to have the issue of racial prejudice specially called to the attention of the prospective jurors on the voir dire examination.' and if it was a 'denial of due process' of constitutional dimension to deny a defense request to interrogate prospective jurors specifically on the issue of racial prejudice and if the District Court had no choice but to enter the order granting the writ of habeas corpus because 'The mandate of Ham is so clear . . .', then, in my opinion, Pandora's box of potential evil has indeed been opened wide and I look with Cassandra-like foreboding upon the future of the voir dire jury examination in cases involving black def...

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