467 U.S.

1025
104 S.Ct. 2885
81 L.Ed.2d 847

Ernest S. PATTON, Superintendent, Sci-Camp Hill and Leroy

S. Zimmerman, Attorney General of Pennsylvania, Petitioners,
v.
Jon E. YOUNT.
No. 83-95.

Supreme Court of the United States

Argued Feb. 28, 1984.
Decided June 26, 1984.

Syllabus
After a jury trial in a Pennsylvania state court in 1966, respondent was
convicted of first-degree murder and rape, and was sentenced to life
imprisonment. However, on direct appeal the Pennsylvania Supreme
Court held that the police had violated respondent's constitutional rights in
securing confessions that had been admitted in evidence, and remanded
the case for a new trial. Before and during an extensive voir dire
examination of potential jurors at the second trial in 1970, respondent
moved for a change of venue, arguing that publicity concerning the case
had resulted in dissemination of prejudicial information that could not be
eradicated from the potential jurors' minds. The trial court denied the
motions, and respondent was convicted again of first-degree murder. He
was resentenced to life imprisonment, and the trial court denied a motion
for a new trial, finding that practically no publicity had been given to the
case between the two trials, that little public interest was shown during the
second trial, and that the jury was without bias. The Pennsylvania
Supreme Court affirmed the conviction and the trial court's findings.
Respondent then sought habeas corpus relief in Federal District Court,
claiming that his conviction had been obtained in violation of his right
under the Sixth and Fourteenth Amendments to a fair trial by an impartial
jury. Upholding the state trial court's view that the jury was impartial, the
District Court denied relief, but the Court of Appeals reversed. Relying
primarily on Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751,

the court found that pretrial publicity had made a fair trial impossible in
the county.
Held:
1. The voir dire testimony and the record of publicity do not reveal the
kind of "wave of public passion" that would have made a fair trial unlikely
by the empaneled jury as a whole. Although Irvin v. Dowd, supra, held
that adverse publicity can create such a presumption of prejudice in a
community that the jurors' claims that they can be impartial should not be
believed, it also recognized that the trial court's findings of impartiality
may be overturned only for "manifest error." In this case, the extensive
adverse publicity and the community's sense of outrage were at their
height prior to respondent's first trial. The record shows that prejudicial
publicity was greatly diminished and community sentiment had softened
when the jury for the second trial was selected four years later. Thus the
trial court did not commit manifest error in finding that the jury as a whole
was impartial. Potential jurors who had retained fixed opinions as to
respondent's guilt were disqualified, and the fact that the great majority of
veniremen "remembered the case," without more, is essentially irrelevant.
The relevant question is whether the jurors at respondent's second trial had
such fixed opinions that they could not judge impartially respondent's
guilt. The passage of time between the first and second trials clearly
rebutted any presumption of partiality or prejudice that existed at the time
of the initial trial. Pp. 1031-1035.
2. There is no merit in respondent's argument that one of the selected
jurors, as well as the two alternates, had been erroneously seated over his
challenges for cause. The ambiguity in the testimony of the cited jurors
was insufficient to overcome the presumption of correctness, under 28
U.S.C. 2254(d), owed to the trial court's findings. The question of an
individual juror's partiality is plainly one of historical fact, and there is fair
support in the record for the state courts' conclusion that the jurors here
would be impartial. Pp. 1036-1040.
710 F.2d 956 (CA3, 1983), reversed.
F. Cortez Bell, III, Clearfield, Pa., for petitioners.
George E. Schumacher, Federal Public Defender, Pittsburgh, Pa., for
respondent.
Justice POWELL delivered the opinion of the Court.

This case brings before us a claim that pretrial publicity so infected a state
criminal trial as to deny the defendant his Sixth Amendment right to an
"impartial jury."

* On April 28, 1966, the body of Pamela Rimer, an 18-year-old high school
student, was found in a wooded area near her home in Luthersburg, Clearfield
County, Pa. There were numerous wounds about her head and cuts on her throat
and neck. An autopsy revealed that she died of strangulation when blood from
her wounds was drawn into her lungs. The autopsy showed no indication that
she had been sexually assaulted.

At about 5:45 the following morning, respondent Yount appeared at the State
Police Substation in nearby DuBois. Yount, who had been the victim's high
school mathematics teacher, proceeded to give the police oral and written
confessions to the murder. The police refused to release the confession to the
press, and it was not published until after it was read at Yount's arraignment
three days later. Record, Ex. P-1-a, P-1-d. At his trial in 1966, the confessions
were admitted into evidence. Yount took the stand and claimed temporary
insanity. The jury convicted him of first-degree murder and rape, and he was
sentenced to life imprisonment. On direct appeal the Pennsylvania Supreme
Court determined that under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602,
16 L.Ed.2d 694 (1966), police had given Yount inadequate notice of his right to
an attorney prior to his confession. The court remanded for a new trial.
Commonwealth v. Yount, 435 Pa. 276, 256 A.2d 464 (1969), cert. denied, 397
U.S. 925, 90 S.Ct. 918, 25 L.Ed.2d 104 (1970).

Prior to the second trial in 1970, the trial court ordered suppression of Yount's
written confessions and that portion of the oral confession that was obtained
after he was legally in custody. The prosecution dismissed the rape charge.
There followed an extensive voir dire that is now at the heart of this case. Jury
selection began on November 4, 1970, and took 10 days, 7 jury panels, 292
veniremen, and 1,186 pages of testimony. Yount moved for a change of venue
before, and several times during, the voir dire. He argued that the widespread
dissemination of prejudicial information could not be eradicated from the
minds of potential jurors, and cited in support the difficulty of the voir dire and
numerous newspaper and other articles about the case. The motions were
denied. The trial court noted that the articles merely reported events without
editorial comment; that the length of the voir dire resulted in part from the
court's leniency in allowing examinations and challenges of the jurors; that
"almost all, if not all," the jurors seated had "no prior or present fixed opinion";
and that there had been "little, if any, talk in public" between the two trials. The
court also observed that the voir dire of the second trial had been sparsely

attended.
5

Ultimately, 12 jurors and 2 alternates were seated. At the second trial, Yount
did not take the stand and did not claim temporary insanity. Instead he relied
upon cross-examination and character witnesses in an attempt to undermine the
State's proof of his intent. The jury convicted him again of first-degree murder,
and he was resentenced to life imprisonment. The trial court denied a motion
for a new trial, finding that practically no publicity had been given to the case
between the two trials, and that little public interest was shown during the
second trial. App. 268a. In addition, the court concluded that the jury was
without bias. The Pennsylvania Supreme Court affirmed the conviction and the
trial court's findings. Commonwealth v. Yount, 455 Pa. 303, 311-314, 314 A.2d
242, 247-248 (1974).

In January 1981, Yount filed a petition for a writ of habeas corpus in United
States District Court. He claimed, inter alia, that his conviction had been
obtained in violation of his Sixth and Fourteenth Amendment right to a fair trial
by an impartial jury. The case was assigned to a Magistrate, who conducted a
hearing and recommended that the petition be granted. The District Court
rejected the Magistrate's recommendation. 537 F.Supp. 873 (WD Pa.1982). It
held that the pretrial publicity was not vicious, excessive, nor officially
sponsored, and that the jurors were able to set aside any preconceived notions
of guilt. It noted that the percentage of jurors excused for cause was "not
remarkable to anyone familiar with the difficulty in selecting a homicide jury in
Pennsylvania." Id., at 882. In addition, the court reviewed the instances in
which the state trial court had denied a challenge for cause, and upheld the trial
court's view that the jury was impartial.

The Court of Appeals for the Third Circuit reversed. 710 F.2d 956 (1983). The
court relied primarily on the analysis set out in Irvin v. Dowd, 366 U.S. 717, 81
S.Ct. 1639, 6 L.Ed.2d 751 (1961), and found that pretrial publicity had made a
fair trial impossible in Clearfield County. It independently examined the nature
of the publicity surrounding the second trial, the testimony at voir dire of the
venire as a whole, and the voir dire testimony of the jurors eventually seated.
The publicity revealed Yount's prior conviction for murder, his confession, and
his prior plea of temporary insanity, information not admitted into evidence at
trial.1 The voir dire showed that all but 2 of 163 veniremen questioned about
the case2 had heard of it, and that, 126, or 77%, admitted they would carry an
opinion into the jury box. This was a higher percentage than in Irvin, where
62% of the 430 veniremen were dismissed for cause because they had fixed
opinions concerning the petitioner's guilt. Finally, the Court of Appeals found
that 8 of the 14 jurors and alternates actually seated admitted that at some time

they had formed an opinion as to Yount's guilt.3 The court thought that many of
the jurors had given equivocal responses when asked whether they could set
aside these opinions, and that one juror, a Mr. Hrin, and both alternates would
have required evidence to overcome their beliefs. The court concluded that
"despite their assurances of impartiality, the jurors could not set aside their
opinions and render a verdict based solely on the evidence presented." 710 F.2d
at 972. 4
8

Judge Garth concurred in the judgment. He declined to join the court's view that
actual prejudice on the part of the jury might be inferred from pretrial publicity
and the answers at voir dire of veniremen not selected for the jury. He wrote
that "[a] thorough and skillfully conducted voir dire should be adequate to
identify juror bias, even in a community saturated with publicity adverse to the
defendant." Id., at 979.5 Judge Garth nevertheless concurred because in his
view juror Hrin stated at voir dire that he would have required evidence to
change his mind about Yount's guilt. This stripped the defendant of the
presumption of innocence.6

We granted certiorari, 464 U.S. 913, 104 S.Ct. 272, 78 L.Ed.2d 254 (1983), to
consider, in the context of this case, the problem of pervasive media publicity
that now arises so frequently in the trial of sensational criminal cases. We
reverse the judgment of the Court of Appeals.

II
10

As noted, the Court of Appeals rested its decision that the jury was not
impartial on this Court's decision in Irvin v. Dowd, supra. That decision, a
leading one at the time, held that adverse pretrial publicity can create such a
presumption of prejudice in a community that the jurors' claims that they can be
impartial should not be believed. The Court in Irvin reviewed a number of
factors in determining whether the totality of the circumstances raised such a
presumption. The Court noted, however, that the trial court's findings of
impartiality might be overturned only for "manifest error." 366 U.S., at 723, 81
S.Ct., at 1643. The Court of Appeals in this case did not address this aspect of
the Irvin decision.7 Moreover, the court below, in concentrating on the factors
discussed at length in Irvin, failed to give adequate weight to other significant
circumstances in this case. In Irvin, the Court observed that it was during the
six or seven months immediately preceding trial that "a barrage of newspaper
headlines, articles, cartoons and pictures was unleashed against [the
defendant]." Id., at 725, 81 S.Ct., at 1644. In this case, the extensive adverse
publicity and the community's sense of outrage were at their height prior to
Yount's first trial in 1966. The jury selection for Yount's second trial, at issue

here, did not occur until four years later, at a time when prejudicial publicity
was greatly diminished and community sentiment had softened. In these
circumstances, we hold that the trial court did not commit manifest error in
finding that the jury as a whole was impartial.
11

The record reveals that in the year and a half from the reversal of the first
conviction to the start of the second voir dire each of the two Clearfield County
daily newspapers published an average of less than one article per month. App.
642a-657a; Record, Ex. P-1-v to P-1-kk, P-2. More important, many of these
were extremely brief announcements of the trial dates and scheduling such as
are common in rural newspapers. E.g., App. 653a-656a; Record, Ex. P-1-ff, P1-ii, P-1-jj. The transcript of the voir dire contains numerous references to the
sparse publicity and minimal public interest prior to the second trial. E.g., App.
43a, 98a, 100a; Tr. (Nov. 4, 1970) 27-28, 90, 191, 384, 771, 829, 1142. It is
true that during the voir dire the newspapers published articles on an almost
daily basis, but these too were purely factual articles generally discussing not
the crime or prior prosecution, but the prolonged process of jury selection. App.
658a-671a. In short, the record of publicity in the months preceding, and at the
time of, the second trial does not reveal the "barrage of inflammatory publicity
immediately prior to trial," Murphy v. Florida, 421 U.S. 794, 798, 95 S.Ct.
2031, 2035, 44 L.Ed.2d 589 (1975), amounting to a "huge . . . wave of public
passion," Irvin, supra, 366 U.S., at 728, 81 S.Ct., at 1645, that the Court found
in Irvin.

12

The voir dire testimony revealed that this lapse in time had a profound effect on
the community and, more important, on the jury, in softening or effacing
opinion. Many veniremen, of course, simply had let the details of the case slip
from their minds. E.g., App. 194a; Tr. 33, 284, 541-544, 991. In addition, while
it is true that a number of jurors and veniremen testified that at one time they
had held opinions, for many, time had weakened or eliminated any conviction
they had had. See, e.g., App. 98a-100a (juror number 7), 128a (juror number 8);
Tr. 384-385, 398-399, 831, 897 (semble), 1075-1076, 1144; see also App. 164a166a (juror number 10).8 The same is true of the testimony of the jurors and
veniremen who were seated late in the process and therefore were subjected to
some of the articles and broadcasts disseminated daily during the voir dire:9 the
record suggests that their passions had not been inflamed nor their thoughts
biased by the publicity. E.g., id., at 176a-177a, 150a-151a; Tr. 771, 959, 1027.

13

That time soothes and erases is a perfectly natural phenomenon, familiar to all.
See Irvin v. Dowd, 271 F.2d 552, 561 (CA7 1959) (Duffy, J., dissenting) (A
continuance should have been granted because "[t]he passage of time is a great
healer," and public prejudice might have "subsid[ed]"), rev'd, 366 U.S. 717, 81

S.Ct. 1639, 6 L.Ed.2d 751 (1961); see also Murphy, supra, 421 U.S., at 802, 95
S.Ct., at 2037; Beck v. Washington, 369 U.S. 541, 556, 82 S.Ct. 955, 963, 8
L.Ed.2d 98 (1962). Not all members of the venire had put aside earlier
prejudice, as the voir dire disclosed. They retained their fixed opinions, and
were disqualified. But the testimony suggests that the voir dire resulted in
selecting those who had forgotten or would need to be persuaded again.10
14

The Court of Appeals below thought that the fact that the great majority of
veniremen "remembered the case" showed that time had not served "to erase
highly unfavorable publicity from the memory of [the] community." 710 F.2d,
at 969. This conclusion, without more, is essentially irrelevant. The relevant
question is not whether the community remembered the case, but whether the
jurors at Yount's trial had such fixed opinions that they could not judge
impartially the guilt of the defendant. Irvin, 366 U.S., at 723, 81 S.Ct., at 16421643. It is not unusual that one's recollection of the fact that a notorious crime
was committed lingers long after the feelings of revulsion that create prejudice
have passed. It would be fruitless to attempt to identify any particular lapse of
time that in itself would distinguish the situation that existed in Irvin.11 But it is
clear that the passage of time between a first and a second trial can be a highly
relevant fact. In the circumstances of this case, we hold that it clearly rebuts any
presumption of partiality or prejudice that existed at the time of the initial trial.
There was fair, even abundant, support for the trial court's findings that
between the two trials of this case there had been "practically no publicity
given to this matter through the news media," and that there had not been "any
great effect created by any publicity." App. 268a, 265a.

III
15

Yount briefly argues here that juror Hrin, as well as the two alternates, were
erroneously seated over his challenges for cause. Brief for Respondent 32.
There is substantial doubt whether Yount properly raised in his petition for
habeas corpus the claim that the trial court erroneously denied his challenge for
cause to juror Hrin. Compare 710 F.2d, at 966, n. 18, with id., at 977, and n. 4
(Garth, J., concurring). And there is no evidence that the alternate jurors, who
did not sit in judgment, actually talked with the other jurors during the 4-day
trial. But Judge Garth in the court below based his concurrence on the view that
Hrin would have required Yount to produce evidence to overcome his
inclination to think the accused was guilty, and the majority of the panel
thought that the 4-day association between the alternates and the other jurors
"operate[d] to subvert the requirement that the jury's verdict be based on
evidence developed from the witness stand," id., at 971, n. 25. Therefore, we
will consider briefly the claims as to all three jurors.

16

It was the view of all three Court of Appeals judges that the question whether
jurors have opinions that disqualify them is a mixed question of law and fact.
See id., at 968, n. 20, 981. Thus, they concluded that the presumption of
correctness due a state court's factual findings under 28 U.S.C. 2254(d) does
not apply. The opinions below relied for this proposition on Irvin v. Dowd, 366
U.S., at 723, 81 S.Ct., at 1642-1643. Irvin addressed the partiality of the trial
jury as a whole, a question we discuss in Part II, supra. We do not think its
analysis can be extended to a federal habeas corpus case in which the partiality
of an individual juror is placed in issue. That question is not one of mixed law
and fact. Rather it is plainly one of historical fact: did a juror swear that he
could set aside any opinion he might hold and decide the case on the evidence,
and should the juror's protestation of impartiality have been believed. Cf.
Rushen v. Spain, 464 U.S. 114, 120, 104 S.Ct. 453, 78 L.Ed.2d 267 (1983)
(state-court determination that juror's deliberations were not biased by ex parte
communications is a finding of fact).12

17

There are good reasons to apply the statutory presumption of correctness to the
trial court's resolution of these questions. First, the determination has been
made only after an often extended voir dire proceeding designed specifically to
identify biased veniremen. It is fair to assume that the method we have relied
on since the beginning, e.g., United States v. Burr, 25 F.Cas. No. 14,692g, p.
49, 51 (No. 14,692g) (CC Va.1807) (Marshall, C.J.), usually identifies bias.13
Second, the determination is essentially one of credibility, and therefore largely
one of demeanor. As we have said on numerous occasions, the trial court's
resolution of such questions is entitled, even on direct appeal, to "special
deference." E.g., Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485,
500, 104 S.Ct. 1949, 1959, 80 L.Ed.2d 502 (1984). The respect paid such
findings in a habeas proceeding certainly should be no less. See Marshall v.
Lonberger, 459 U.S. 422, 434-435, 103 S.Ct. 843, 850-851, 74 L.Ed.2d 646
(1983).14

18

Thus the question is whether there is fair support in the record for the state
courts' conclusion that the jurors here would be impartial. See 28 U.S.C.
2254(d)(8). The testimony of each of the three challenged jurors is ambiguous
and at times contradictory. This is not unusual on voir dire examination,
particularly in a highly publicized criminal case. It is well to remember that the
lay persons on the panel may never have been subjected to the type of leading
questions and cross-examination tactics that frequently are employed, and that
were evident in this case. Prospective jurors represent a cross section of the
community, and their education and experience vary widely. Also, unlike
witnesses, prospective jurors have had no briefing by lawyers prior to taking
the stand. Jurors thus cannot be expected invariably to express themselves

carefully or even consistently. Every trial judge understands this, and under our
system it is that judge who is best situated to determine competency to serve
impartially. The trial judge properly may choose to believe those statements
that were the most fully articulated or that appeared to have been least
influenced by leading.
19

The voir dire examination of juror Hrin was carefully scrutinized by the state
courts and the Federal District Court, as he was challenged for cause and was a
member of the jury that convicted the defendant. We think that the trial judge's
decision to seat Hrin, despite early ambiguity in his testimony, was confirmed
after he initially denied the challenge. Defense counsel sought and obtained
permission to resume cross-examination. In response to a question whether Hrin
could set his opinion aside before entering the jury box or would need evidence
to change his mind, the juror clearly and forthrightly stated: "I think I could
enter it [the jury box] with a very open mind. I think I could . . . very easily. To
say this is a requirement for some of the things you have to do every day." App.
89a. After this categorical answer, defense counsel did not renew their
challenge for cause. Similarly, in the case of alternate juror Pyott, we cannot
fault the trial judge for crediting her earliest testimony, in which she said that
she could put her opinion aside "[i]f [she] had to," rather than the later
testimony in which defense counsel persuaded her that logically she would need
evidence to discard any opinion she might have. Id., at 246a, 250a-252a.
Alternate juror Chincharick's testimony is the most ambiguous, as he appears
simply to have answered "yes" to almost any question put to him. It is here that
the federal court's deference must operate, for while the cold record arouses
some concern, only the trial judge could tell which of these answers was said
with the greatest comprehension and certainty.

IV
20

We conclude that the voir dire testimony and the record of publicity do not
reveal the kind of "wave of public passion" that would have made a fair trial
unlikely by the jury that was empaneled as a whole. We also conclude that the
ambiguity in the testimony of the cited jurors who were challenged for cause is
insufficient to overcome the presumption of correctness owed to the trial court's
findings. We therefore reverse.

21

It is so ordered.

22

Justice MARSHALL took no part in the consideration or decision of this case.

23

Justice STEVENS, with whom Justice BRENNAN joins, dissenting.

23

Justice STEVENS, with whom Justice BRENNAN joins, dissenting.

24

On page 1 of its opinion the Court carefully states certain facts that give the
reader a strong feeling about how this case should be decided. In 1966, Jon
Yount confessed that he was responsible for the brutal killing of an 18-year-old
high-school student. At his first trial in 1966 he testified that he had been
temporarily insane at the time, but the jury did not believe him. He was found
guilty of rape, as well as murder. These facts were not admissible in evidence at
his second trial. What impact, if any, did these inadmissible facts have upon 12
jurors, the 2 alternate jurors, and indeed the trial judge, who listened to the
evidence at Yount's second trial in 1970? The Court is satisfied that
"community sentiment had softened," ante, at 1032, and that the trial judge "did
not commit manifest error in finding that the jury as a whole was impartial,"
because of the passage of time between 1966 and 1970, and because we all
know that "time soothes and erases," ante, at 1034.

25

In order to explain why I disagree with the Court's assessment of the case, it is
necessary to enlarge upon its summary of the news coverage of the crime and
its aftermath, to supplement its discussion of the examination of the jurors, and
to explain why the Court of Appeals properly rejected the trial judge's
conclusion that the jury as a whole was impartial. Next, I will discuss my
disagreement with the Court's conclusion regarding juror Hrin. Finally, I shall
add a word about the more profound issue that a case of this kind raises.

26

* Because the Court places such great emphasis on the fact that "this lapse in
time had a profound effect on the community and, more important, on the jury,
in softening or effacing opinion," ante, at 1033, it is important to note that there
were, in effect, three chapters in the relevant news coverage: the stories about
the crime itself and the first trial in 1966; the stories and events surrounding the
State Supreme Court's reversal of the first conviction in 1969; and the stories
that were published in 1970 immediately before the second trial began and
while the jury was being selected.

27

The relevant events all occurred in Clearfield County, Pa., where both Yount
and the victim lived. It is a rural county, with a population of about 70,000,
served by two newspapers with a combined circulation of about 25,000. Not
surprisingly, both newspapers gave front-page coverage to the homicide, the
pretrial proceedings, and the trial itself. In numerous editions of the DuBois
Courier Express, the newspaper carried banner headlines on the front page,
news stories and feature articles. App. 520a-641a; Record, Ex. P-1-a, P-1-b, P1-d, P-1-f to P-1-t. The Clearfield Progress evaluated the trial as the "Top News
Story of 1966." Record, Ex. P-2, p. 2. Both papers reported that public interest

in the proceedings was "unprecedented." 710 F.2d 956, 962 (CA3 1983).
Moreover, the case also received radio and television coverage, see, e.g., Tr.
(Nov. 4, 1970) 64 (juror number 1), 142, 220, 277, and, according to the Court
of Appeals, was publicized in out-of-state and national publications. 710 F.2d,
at 962, n. 6.
28

The articles were extremely detailed.1 As the Court of Appeals noted, they
"related in full [Yount's] detailed written confessions as well as his testimony at
trial retelling the homicide. They also detailed [Yount's] defense of temporary
insanity, the charge and evidence of rape, and finally [Yount's] conviction on
October 7, 1966, of both rape and first-degree murder." Id., at 963; see, e.g.,
App. 538a-540a, 603a-606a. As this Court notes, "the extensive adverse
publicity and the community's sense of outrage were at their height prior to
Yount's first trial in 1966," ante, at 1032.

29

In 1969, a divided Supreme Court of Pennsylvania reversed Yount's conviction

and ordered a new trial. Commonwealth v. Yount, 435 Pa. 276, 256 A.2d 464
(1969), cert. denied, 397 U.S. 925, 90 S.Ct. 918, 25 L.Ed.2d 104 (1970). This
event did not pass unnoticed in Clearfield County. To the contrary, banner
headlines announced the reversal. App. 642a; Record, Ex. P-1-v. The local
press reprinted the entire dissenting opinion. App. 644a; Record, Ex. P-1-x.
And, as the Court of Appeals stated, "a local radio program became a forum in
which callers expressed their hostility to [Yount]." 710 F.2d, at 963. This
evidence contradicts the easy assumption that "community sentiment had
softened," ante, at 1032.

30

In 1970, Yount was returned to Clearfield County for a retrial in the same
courtroom before the same judge who had presided at the first trialthe judge
whose erroneous rulings had made the second trial necessary. Yount moved for
a change of venue on the ground that the continuing discussion of the case
among local residents made it impossible for him to receive a fair trial in
Clearfield County. In response the prosecutor argued that a change of venue
would be pointless because the case had been so widely publicized throughout
the State. The trial court denied the motion, explaining that the recent
newspaper items had consisted of purely factual reporting "without editorial
comment of any kin[d]." App. 260a. This venue ruling generated a front-page
article. Id., at 654a; Record, Ex. P-1-gg. Additionally, during the subsequent
voir dire, the selection of jurors merited numerous articles and sometimes
merited a profile on the juror selected. App. 658a-659a, 661a-663a, 664a-671a;
Record, Ex. P-1-ll, P-1-nn to P-1-vv; P-2.

31

The voir dire testimony of one prospective juror, the wife of a minister, sheds a

revelatory light on the character of local sentiment on the eve of the second
trial. After acknowledging that she had heard many opinions about the case,
she was asked:
32

"Q. Would your presence in serving as a juror create a difficulty in your parish?

33

"A. Why yeswhen people heard my name on for thiscountless people of

the church have come to me and said they hoped I would takethe stand I
would take in case I was called. I have had a prejudice built up from the people
in the church.

34

"Q. Is this prejudice, has it been adverse to Mr. Yount? "A. Yes it was. They all
say he had a fair trial and he got a fair sentence. He's lucky he didn't get the
chair.

35

*****

36

"[T]he church peopleI haven't asked for any of this but they discuss it in
every groupbut they say now since you are chosen and you will be there we
expect you to follow through.

37

"Q. Notwithstanding what the Court would tell you, you feel you would be
subject to the retributions or retaliation of these people

38

"A. I think I would hear about it." App. 25a-27a.

39

The minister's wife was excused. Her testimony, as well as that of other
veniremen who were excused, not only repudiates the notion that the
community had all but forgotten the Yount case, but also suggests that some
veniremen might have been tempted to understate their recollection of the case
because they felt they had a duty to their neighbors "to follow through."2 In all
events, the record clearly establishes that the case was still a "cause celebre" in
Clearfield County in 1970.

II
40

Even if all the voir dire testimony is accepted at face value, it is difficult to
understand how a neutral observer could conclude that the jury as a whole was
impartial. Before referring to the 12 jurors and 2 alternates who were selected,
it is useful to describe the attitude that pervaded the entire venire.

41

The jury selection took 10 days. Id., at 745a; 710 F.2d, at 963, 975. Out of an
original total of 292 veniremen, the court dismissed 129 because they had been
chosen improperly, Tr. 685-686, or had a valid reason for not serving. Id., at
117-118, 492, 1039, 1060-1061. Of the remaining 163 who were questioned, all
but 2 had read or heard about the case, id., at 127a-128a, 370a-371a (juror
number 4); all but 42 were dismissed for cause. 710 F.2d, at 963. Of the 121
dismissed for cause, 96 testified that they had firm opinions that could not be
changed regardless of what evidence might be presented. Twenty-one others
testified that they could only change their opinion if Yount could convince
them to do so. In addition, there were nine veniremen who were unsuccessfully
challenged for cause who also testified that they had opinions that they could
change only if Yount could convince them to do so.3 Id., at 963-964. Thus, as
Judge Hunter summarized for the Court of Appeals:

42

"When we combine those nine with the 117 veniremen dismissed for cause, we
find that a total of 126 out of the 163 veniremen questioned on the case were
willing to admit on voir dire that they would carry their opinion[s] into the jury
box." 4 Id., at 964.

43

Turning to the jurors who were actually selected, Judge Hunter accurately
noted that "the publicity had reached all but one of the twelve jurors and two
alternates finally empanelled." Ibid. (footnote omitted); App. 32a, 43a, 71a,
83a, 98a, 120a, 149a, 163a, 176a, 193a, 210a, 235a, 250a. Juror number 1 noted
that "it was pretty hard to be here in Clearfield County and not read something
in the paper" about the case; that she had read newspaper stories and listened to
radio and television stories about the case; and that she had heard the case
being discussed by other people. Id., at 32a. Juror number 2 testified that he had
read about the case in the newspapers; that "[y]ou could hardly miss it on
[radio and television] news"; and that he had formed an opinion about the case.
Id., at 43a-44a. The person seated as juror number 35 stated that he had read
about the case in the newspapers years before the voir dire but that he had not
formed an opinion. Id., at 210a-211a. Juror number 4, a newcomer to the area,
had never heard of the case. Id., at 57a-58a. Juror number 5 "remembered that
they had said he was guilty before" and wondered why they were having
another trial. Id., at 73a. James F. Hrin, juror number 6, testified that he had an
opinion about the case and that he would require the presentation of evidence to
change it. Id., at 83a, 85a. He noted that "[i]t's rather difficult to live in DuBois
and get the paper and find out what people are talking aboutat least the local
. . . people without having some opinion or at least reserving some opinion."
Id., at 88a. Juror number 7 stated that he had read about the case; that he had
formed an opinion; and that he was not sure whether he still had an opinion. Id.,
at 98a-99a. Juror number 8 testified that she had heard others express opinions

concerning the case and she only had an opinion "on just what he said himself
that he was guilty." Id., at 120a, 125a. Juror number 9 stated that she had felt
that petitioner was guilty but that presently she would have to hear both sides
before forming an opinion. Id., at 150a. Juror number 10 had heard people
express their opinions and had on occasion expressed his own opinion about
the case. He also stated that he would listen to both sides before forming a
present opinion. Id., at 164a-165a. Juror number 11 testified that he had read
newspaper accounts of the case but that he had formed no opinion. Id., at 177a.
Juror number 12 had read about the case but she had formed no opinion. Id., at
193a-194a. Two alternates were seated over Yount's challenges for cause.
Alternate number 1 stated that he had heard people express opinions and ideas
about the case; that he had expressed an opinion; that he still had a firm and
fixed opinion based on what he read in the newspapers; and that he would
require evidence to be presented before he could put his opinion out of his
mind. Id., at 235a-240a. Alternate number 2 stated that she had formed a
definite opinion and that she would require the production of evidence to
change her mind. Id., at 251a-252a.
44

The totality of these circumstances convinces me that the trial judge committed
manifest error in determining that the jury as a whole was impartial. The trial
judge's comment that there was little talk in public about the second trial, id., at
264a, is plainly inconsistent with the evidence adduced during the voir dire.
Similarly, the trial court's statement that "there was practically no publicity
given to this matter through the news media . . . except to report that a new trial
had been granted by the Supreme Court," id., at 268a, simply ignores at least 55
front-page articles that are in the record. Record, Ex. P-1, P-2. Further, the trial
judge's statement that "almost all, if not all, [of the first 12] jurors . . . had no
prior or present fixed opinion," App. 264a, is manifestly erroneous; a review of
the record reveals that 5 of the 12 had acknowledged either a prior or a present
opinion. Id., at 43a-44a, 83a, 98a-99a, 150a, 164a-165a. The trial judge's
"practically no publicity" statement also ignores the first-trial details within the
news stories. These included Yount's confessions, testimony, and conviction of
rape all of which were outside of the evidence presented at the second trial. See
id., at 643a-644a, 650a, 655a; Record, Ex. P-1-w, P-1-x, P-1-z, P-1-cc, P-1-hh.
Under these circumstances, I do not believe that the jury was capable of
deciding the case solely on the evidence before it. Smith v. Phillips, 455 U.S.
209, 217, 102 S.Ct. 940, 946, 71 L.Ed.2d 78 (1982) ("Due process means a jury
capable and willing to decide the case solely on the evidence before it").

III
45

The Court today also rejects Yount's claim that juror Hrin was erroneously

seated over his challenge for cause. Before explaining why I disagree with this
conclusion, it is necessary to set forth a more complete version of Hrin's voir
dire testimony than is set forth by the Court.
46

Hrin, in response to the prosecution's questioning, gave the following

testimony:

47

"Q. Have you formed any opinion as to the guilt or innocence of Mr. Yount?

48

"A. To the degree that it was written up in the papers, yes.

49

"Q. Is this a fixed opinion on your part?

50

"A. This is sort of difficult to answer. Fixed?

51

"Q. Let me askif you were to be selected as a juror in this case and take the
jury box, could you erase or remove the opinion you now hold and render a
verdict based solely on the evidence and law produced at this trial?

52

"A. It is very possible. I wouldn't say for sure.

53

"Q. Do you think you could?

54

"A. I think I possibly could.

55

"Q. Then the opinion you hold is not necessarily a fixed and immobile opinion?

56

"A. I would say not, because I work at a job where I have to change my mind
constantly.

57

"Q. Would you be able to change your mind regarding your opinion before
becoming a juror in this case. That's the way I must have you answer the
question.

58

"A. If the facts were so presented I definitely could change my mind.

59

"Q. Would you say you could enter the jury box presuming him to be innocent?
"A. It would be rather difficult for me to answer.

60

"Q. Can you enter the jury box with an open mind prepared to find your verdict
on the evidence as presented at trial and the law . . . presented by the Judge?

61

"A. That I could do." App. 83a-84a. Yount's counsel elicited further testimony
through cross-examination:

62

"Q. Did I understand Mr. Hrin you would require someyou would . . . require
evidence or something before you could change your opinion you now have?

63

"A. Definitely. If the facts show a difference from what I had originallyhad
been led to believe, I would definitely change my mind.

64

"Q. But until you're shown those facts, you would not change your mindis
that your position?

65

"A. WellI have nothing else to go on.

66

"Q. I understand. Then the answer is yesyou would not change your mind
until you were presented facts?

67

"A. Right, but I would enter it with an open mind.

68

"Q. In other words, you're saying that while facts were presented you would
keep an open mind and after that you would feel free to change your mind?

69

"A. Definitely.

70

"Q. But you would not change your mind until the facts were presented?

71

"A. Right. Id., at 85a-86a.

72

Yount's counsel subsequently challenged for cause; the court denied the
challenge because Hrin "said he could go in with an open mind." Id., at 86a.

73

First, even if we regard the relevant rulings as findings of fact, Hrin's testimony
clearly is sufficient to overcome the presumption of correctness due a state
court's factual findings under 28 U.S.C. 2254(d). The state court's
determination is not fairly supported by the record. Hrin not only indicated that
he had a previous opinion as to Yount's guilt or innocence, but also that he

required evidence produced at trial to dispel that opinion. Further, he stated

pursuant to the prosecution's questioningthat "[i]t would be rather difficult . .
. to answer" whether he could enter the jury box presuming Yount's innocence.
Under these circumstances, I am convinced that the trial court improperly
empaneled Hrin.
74

More important, however, I believe the Court's analysis regarding whether a

juror has a disqualifying opinion is flawed. The Court begins by stating that
such a question is one of historical fact, ante, at 1036. It then concludes,
simply, that this factual finding is entitled to 28 U.S.C. 2254(d)'s presumption
of correctness. Finally, it acknowledges that "[t]here are, of course, factual and
legal questions to be considered in deciding whether a juror is qualified," ante,
at 1037, n. 12, and cites as one authority Reynolds v. United States, 98 U.S.
145, 25 L.Ed. 244 (1879).6

75

Contrary to the Court, I believe that whether a juror has a disqualifying opinion
is a mixed question of law and fact. The proper starting point of analysis is
Reynolds v. United States, supra. In that case, the defendant excepted to the
trial court's decision to reject several challenges for cause that were based on
juror testimony during voir dire. Id., at 146-147. This Court upheld the trial
court's decision. Id., at 157. Before reaching its ultimate conclusion, the Court
stated:

76

"The theory of law is that a juror who has formed an opinion cannot be
impartial. Every opinion which he may entertain need not necessarily have this
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 the 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 of the trial court upon that issue
ought not to be set aside by a reviewing court, unless the error is manifest." Id.,
at 155-156.

77

Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961), extended
Reynolds to habeas corpus proceedings. Initially, Irvin noted that a
presumption of a prospective juror's impartiality is not rebutted "if the juror can

lay aside his impression or opinion and render a verdict based on the evidence
presented in court." 366 U.S., at 723, 81 S.Ct., at 1643. Next, the Court
affirmed that a proper inquiry may demonstrate " 'whether the nature and
strength of the opinion formed are such as in law necessarily . . . raise the
presumption of partiality,' " ibid. (quoting Reynolds v. United States, supra, 98
U.S., at 156), and that this inquiry is " 'one of mixed law and fact.' " 366 U.S.,
at 723, 81 S.Ct., at 1643.
78

Thus, Reynolds and Irvin teach that the question whether a juror has an opinion
that disqualifies is a mixed one of law and fact. Therefore, one cannot apply the
presumption of correctness found in 28 U.S.C. 2254(d) because the statutory
language by definition applies only to the factual determinations of state courts.
Applying the proper analytical framework, I believe that Hrin's testimony
clearly raised a presumption of partiality. Therefore, the trial judge committed
manifest error by improperly empaneling Hrin.7

79

There is a special reason to require independent review in a case that arouses

the passions of the local community in which an elected judge is required to
preside. Unlike an appointed federal judge with life tenure, an elected judge has
reason to be concerned about the community's reaction to his disposition of
highly publicized cases. Even in the federal judiciary, some Circuits have
determined that it is sound practice to have the retrial of a case assigned to a
different judge than the one whose erroneous ruling made another trial
necessary; for though the risk that a judge will subconsciously strive to
vindicate the result reached at the first trial may be remote, as long as human
beings preside at trials, that possibility cannot be ignored entirely.

IV
80

Two additional and somewhat disturbing questions merit comment: (1) why did
this Court exercise its discretionary jurisdiction to review this case; and (2)
even if the Court of Appeals' analysis of the case is entirely correct, why should
those federal judges order the great writ of habeas corpus to issue for the
benefit of a prisoner like Yount, who, it would seem, is guilty of a heinous
offense?

81

The answer to the question why the Court grants certiorari in any given case
usually involves considerations of both fact and law. It appears that the facts
motivated the Court to select this case for plenary review. The facts that had
such a motivating impact on this Courtthat the conviction of a confessed
murderer of a high-school student had been set aside by an appellate court also,
I believe, must have had an emotional and unforgettable impact on the residents

of Clearfield County. The desire to "follow through"to do something about

such an apparent miscarriage of justiceis difficult for judges as well as
laymen to resist.8
82

It should not be forgotten that Yount has already been incarcerated for 18 years.
If, as the Court of Appeals held, he has not yet been found guilty beyond a
reasonable doubt in a fair trial, the possibility remains that he has already
received a greater punishment than is warranted. Of much greater importance is
our dedication to the principle that guilt or innocence of a criminal offense in
our society is not to be decided by executive fiat or by popular vote. This is a
principle that affords protection for every citizen in the United States. Justice
Frankfurter stated this point in his concurrence in Irvin v. Dowd:

83

"More than one student of society has expressed the view that not the least
significant test of the quality of a civilization is its treatment of those charged
with crime, particularly with offenses which arouse the passions of a
community. One of the rightful boasts of Western civilization is that the State
has the burden of establishing guilt solely on the basis of evidence produced in
court and under circumstances assuring an accused all the safeguards of a fair
procedure. These rudimentary conditions for determining guilt are inevitably
wanting if the jury which is to sit in judgment on a fellow human being comes
to its task with its mind ineradicably poisoned against him." 366 U.S., at 729,
81 S.Ct., at 1646 (concurring).

84

I would affirm the judgment of the Court of Appeals.

The Court of Appeals rejected as without fair support in the record the trial
court's conclusion that there was practically no publicity given to the case
between the first and second trials. See 710 F.2d 956, 969, n. 21 (1983). The
federal court suggested that the record on habeas of the publicity after the first
trial and during the second was more complete than the record considered by
the trial court. Ibid.
The Court of Appeals also suggested that the trial court's view that there was
little talk in public concerning the second trial was undermined by the voir dire
testimony that there had been public discussion of the case, particularly in the
last weeks before retrial. Id., at 969, n. 22. The court discounted, as of limited
significance, the trial court's point that few spectators had attended the trial,
since Yount did not allege prejudice arising from the " 'circus atmosphere' " in
the courtroom. Ibid.

One hundred twenty-five of the original 292 veniremen were excused because
they had not been chosen properly. Four others were dismissed for cause before
they were questioned on the case.

The Court of Appeals noted that in Irvin 8 of 12 jurors had formed opinions of
guilt.

Judge Stern wrote a separate concurring opinion in which he suggested that the
"constitutional standard which for 175 years has guided the lower courts" in
this area be rejected. 710 F.2d, at 972. Rather than hinge disqualification of a
juror on whether he has a fixed opinion of guilt that he cannot lay aside, Judge
Stern would bar any juror who admitted any opinion as to guilt. Moreover, no
jury could be empanelled where more than 25% of the veniremen state that
they held an opinion concerning the defendant's guilt. This would raise such
doubts as to the sincerity of those who claimed no opinion as to suggest
concealed bias, Judge Stern wrote.

Judge Garth thought Irvin was distinguishable, because there "the trial court
(which itself questioned the jurors challenged for cause) did not engage in a
searching and thorough voir dire." 710 F.2d, at 979. Rather, it merely credited
the jurors' subjective opinions that each could render an impartial verdict
notwithstanding his or her opinion. Judge Garth also noted that Yount
challenged for cause only three of the actual jurors. In Irvin, the defendant
challenged each of his 12 jurors for cause. Irvin v. Dowd, 359 U.S. 394, 398, 79
S.Ct. 825, 828, 3 L.Ed.2d 900 (1959).

Judge Garth stated that whether juror Hrin was unconstitutionally biased was a
mixed question of law and fact under Irvin. 710 F.2d, at 981. He therefore did
not apply the presumption of correctness that is applicable to the factual
findings of a state court in a federal habeas corpus proceeding, 28 U.S.C.
2254(d).

The Court of Appeals appears to have thought that two statements in Irvinthat
a federal court must "independently evaluate" the voir dire testimony, and that
the question of juror partiality is a mixed question of law and fact, 366 U.S., at
723, 81 S.Ct., at 1643meant that there is no presumption of correctness owed
to the trial court's finding that a jury as a whole is impartial. We note that Irvin
was decided five years before Congress added to the habeas corpus statute an
explicit presumption of correctness for state-court factual findings, see Pub.L.
89-711, 80 Stat. 1105-1106, and two years before this Court's opinion in
Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), provided
the guidelines that were later codified. It may be that there is little practical
difference between the Irvin "manifest error" standard and the "fairly supported

by the record" standard of the amended habeas statute. See 28 U.S.C.

2254(d). In any case, we do not think the habeas standard is any less stringent.
Since we uphold the state court's findings in this case under Irvin's "manifest
error" standard, we do not need to determine whether the subsequent
development of the law of habeas corpus might have required a different
analysis or result in that case.
8

The testimony of juror number 7, Martin Karetski, during examination by

defense counsel is illustrative:
"Q. You have heard the matter discussed over the years?
"A. In the past few years I haven't heard too much about it.
"Q. In 1966 when the matter came up before you knew about it then?
"A. Yes sir.
"Q. And just recently when this matter was coming up again, I presume?
"A. What I have read in the paper again.
"Q. And you have heard other people discuss it?
"A. Not too many so far.
"Q. You have heard other people express opinions about it?
"A. Not too many of those so far too.
"Q. Back around '66, did you?
"A. Yes in '66.
*****
"Q. . . . I assume you had an opinion as to [Mr. Yount's] guilt or innocence [in
1966]?
"A. I had an opinion yes.
"Q. Do you have a opinion today as to his guilt or innocence?
"A. It's been a long time ago and I'm not sure now. It was in the paper he plead
[sic] not guilty.

*****
"Q. Let me ask you this then. In case you do have an opinion, could you wipe it
out of your minderase it out of your mind before you would take a seat in the
jury box and hear whatever evidence you might hear?
"A. As it is right now I have no opinion nowfour or five years ago I probably
did but right now I don't.
*****
"Q. What happened Mr. Karetski, between then and now to eliminate that
opinion if you can tell me?
"A. Well, as far as I'm concerned there wasn't much in the paper about it and it
sort of slipped away from thought." App. 98a-100a.
9

Jurors were sequestered as they were chosen.

10

As noted, the voir dire in this case was particularly extensive. It took 10 days to
pick 14 jurors from 167 veniremen. In Irvin it took 8 days to pick 14 jurors
from 167 veniremen. In Irvin it took 8 days to pick 14 jurors from 430
veniremen.
Contrary to Judge Garth's surmise, 710 F.2d, at 979, however, the voir dire
interviews quoted in the petitioner's brief in Irvin do not appear to be
significantly less probing than those here. See Brief for Petitioner in Irvin v.
Dowd, O.T. 1960, No. 41, pp. 18-59. It should also be noted that the voir dire
in Irvin, like that here, was conducted largely by counsel for each side, rather
than the judge. The only significant difference in the procedures followed here
and in Irvin is that the veniremen here were brought into the courtroom alone
for questioning, while it appears that those in Irvin were questioned in front of
all those remaining in the panel. This is not an insubstantial distinction, as the
Court suggested in Irvin, 366 U.S., at 728, 81 S.Ct., at 1645, but we do not find
it controlling.

11

In Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975), the
defendantwidely known as "Murph the Surf" relied heavily on Irvin. The
record of damaging publicity preceding his trial was at least as extreme as that
in this case. Nevertheless, we found the record there distinguishable from Irvin.
We noted that the extensive publication of news articles about Murphy largely
had ceased some seven months before the jury was selected. 421 U.S., at 802,
95 S.Ct., at 2037. Murphy involved a lapse in publicity prior to the defendant's
first trial; there was no second trial in that case.

12

There are, of course, factual and legal questions to be considered in deciding

whether a juror is qualified. The constitutional standard that a juror is impartial
only if he can lay aside his opinion and render a verdict based on the evidence
presented in court is a question of federal law, see Irvin, 366 U.S., at 723, 81
S.Ct., at 1642, 1643; whether a juror can in fact do that is a determination to
which habeas courts owe special deference, see Rushen, 464 U.S., at 120, 104
S.Ct., at 456-457. Cf. Marshall v. Lonberger, 459 U.S. 422, 431-432, 103 S.Ct.
843, 849-850, 74 L.Ed.2d 646 (1983) (similar analysis as to whether a guilty
plea was voluntary). See also Reynolds v. United States, 98 U.S. 145, 156, 25
L.Ed. 244 (1879) (whether a juror should be disqualified is a question involving
both a legal standard and findings of fact; the latter may be set aside only for
manifest error).
The dissent misreads the Court's opinion in Reynolds v. United States. Post, at
1050-1052, and nn. 6 and 7. Reynolds was decided some 87 years before the
presumption of correctness for factual findings was added to 28 U.S.C. 2254.
The Court clearly did not attach the same significance to the phrase "a question
of mixed law and fact" that we do today under modern habeas law. It
recognized that juror-disqualification questions may raise both a question of law
whether the correct standard was appliedand a question of fact. Whether
an opinion expressed by a juror was such as to meet the legal standard for
disqualification was viewed as a question of fact as to which deference was due
to the trial court's determination. This is apparent from the language quoted by
the dissent, which notes that while the question is one of "mixed law and fact,"
it is "to be tried, as far as the facts are concerned, like any other issue of that
character, upon the evidence. The finding of the trial court upon that issue
ought not to be set aside by a reviewing court, unless the error is manifest." 98
U.S., at 156. Plainly, factual findings were to be considered separately from the
legal standard applied, and deference was due to those findings. This is also
apparent from the following passage:
"[T]he manner of the juror while testifying is oftentimes more indicative of the
real character of his opinion than his words. That is seen below, but cannot
always be spread upon the record. Care should, therefore, be taken in the
reviewing court not to reverse the ruling below upon such a question of fact,
except in a clear case." Id., at 156-157 (emphasis added). Taken together, these
passages plainly show that the "character of [a juror's] opinion" was considered
a question of fact. Contrary to the suggestion of the dissent, ante, at 1050, n. 6,
the factual question was not limited to whether the juror was telling the truth,
but included discovering the "real character" of any opinion held. Deference
was due to the trial court's conclusions on that question.

13

Accord, In re Application of National Broadcasting Co., 209 U.S.App.D.C. 354,

362, 653 F.2d 609, 617 (1981) ("[V]oir dire has long been recognized as an
effective method of rooting out such bias, especially when conducted in a
careful and thoroughgoing manner"); United States v. Duncan, 598 F.2d 839,
865 (CA4), cert. denied, 444 U.S. 871, 100 S.Ct. 148, 62 L.Ed.2d 96 (1979);
Calley v. Callaway, 519 F.2d 184, 209, n. 45 (CA5 1975) (en banc) (citing
cases), cert. denied sub. nom. Calley v. Hoffman, 425 U.S. 911, 96 S.Ct. 1505,
47 L.Ed.2d 760 (1976). But cf. Smith v. Phillips, 455 U.S. 209, 222, and n., 102
S.Ct. 940, 941, and n., 71 L.Ed.2d 78, (1982) (O'CONNOR, J., concurring)
(describing situations in which state procedures are inadequate to uncover bias);
Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963)
(same).
14

Demeanor plays a fundamental role not only in determining juror credibility,

but also in simply understanding what a potential juror is saying. Any
complicated voir dire calls upon lay persons to think and express themselves in
unfamiliar terms, as a reading of any transcript of such a proceeding will reveal.
Demeanor, inflection, the flow of the questions and answers can make confused
and conflicting utterances comprehensible.

The "details" of the articles prompted two citizens to write letters to the Courier
Express. One letter complained that the paper had "fanned the already poisoned
atmosphere of malicious gossip" by putting a picture of the corpse on the front
page and by the "repetitive use of gory details." The author added that he
thought he "was looking at the National Enquirer." The second letter noted:
"Emotional editorializing most certainly has it's [sic] place in reporting, but I
strenuously object to such when it appears in headline stories. . . . [D]escriptive
words that do much to sell newspapers and stir emotions discredit headline
reporting and tend to prejudice the suspect regardless of degree of guilt."
Record, Ex. P-1-e.

As the Court of Appeals pointed out, another prospective juror testified that his
opinion had been erased by the passage of time, but his daughter-in-law
testified that he had left for jury duty voicing great animosity toward Yount.
710 F.2d, at 964; App. 766a.

The Court of Appeals added:

"Petitioner peremptorily challenged six of those nine veniremen, one was
seated as a juror, and the remaining two were seated as alternates after
petitioner had exhausted his peremptory challenges." Id., at 964, n. 13.

At this point, the Court of Appeals added the following footnote:

"In addition, we note that twelve other veniremen stated that they had had an

opinion at one time but claimed they would not carry it into the jury box. One
of the twelve veniremen was dismissed for cause, six were peremptorily
challenged by petitioner, and five were seated as jurors." 710 F.2d, at 964, n.
14.
5

The person initially selected as juror number 3 was not able to sit because of
personal reasons. Tr. 1060-1061.

The Court attempts to justify its treatment of Reynolds by quoting from a

passage in that case that begins with: "[T]he manner of the juror while
testifying is oftentimes more indicative of the real character of his opinion than
his words." Ante, at 1037, n. 12 (quoting 98 U.S., at 156-157). The excerpt
from Reynolds quoted by the Court dealt with the question whether a juror's
testimony was truthfulspecifically whether a prospective juror was falsely
seeking to disqualify himself. In this case the question is whether Hrin's
testimony, including his acknowledged opinion about Yount's guilt, raised a
presumption of partiality. Whether the testimony of a witness is true or false is
a question of fact; whether his statement raises a presumption of partiality is a
mixed question of law and fact. The fully quoted relevant passage of Reynolds
demonstrates the former point:
"The reading of the evidence leaves the impression that the juror had some
hypothetical opinion about the case, but it falls far short of raising a manifest
presumption of partiality. In considering such questions in a reviewing court,
we ought not to be unmindful of the fact we have so often observed in our
experience, that jurors not unfrequently seek to excuse themselves on the
ground of having formed an opinion, when on examination, it turns out that no
real disqualification exists. In such cases the manner of the juror while
testifying is oftentimes more indicative of the real character of his opinion than
his words. That is seen below, but cannot always be spread upon the record.
Care should, therefore, be taken in the reviewing court not to reverse the ruling
below upon such a question of fact except in a clear case." Id., at 156-157
(emphasis added).
The Court also cites as authority Rushen v. Spain, 464 U.S. 114, 104 S.Ct. 453,
78 L.Ed.2d 267 (1983) (per curiam), and Marshall v. Lonberger, 459 U.S. 422,
103 S.Ct. 843, 74 L.Ed.2d 646 (1983). Neither of those cases was correctly
decided. Moreover, the latter case is plainly inapplicable because it involved
the voluntariness of guilty pleas, not juror partiality. The former involved an
allegation of juror partiality that arose after the trial began.

The Court states that it "do[es] not think [Irvin's] analysis can be extended to a
federal habeas corpus case in which the partiality of an individual juror is

placed in issue." Ante, at 1036. The validity of Irvin (habeas corpus case) and
of Reynolds (individual jurors), and the inapplicability of 28 U.S.C. 2254(d),
dispose of any meaningful reason not to "extend" these cases to federal habeas
corpus cases in which the partiality of individual jurors is placed in issue.
8

As I recently noted, in 19 consecutive cases in which the Court exercised its

discretion to decide a criminal case summarily, the Court made sure that an
apparently guilty defendant was not given too much protection by the law. See
Florida v. Meyers, 466 U.S. 380, 385-387, and n. 3, 104 S.Ct. 1852, 1855, and
n. 3, 80 L.Ed.2d 381 (1984). The string of consecutive summary victories for
the prosecution now stands at 20. See Massachusetts v. Upton, 466 U.S. 727,
104 S.Ct. 2085, 80 L.Ed.2d 721 (1984) (per curiam).