Rideau v. Louisiana/Dissent Clark

Mr. Justice CLARK, with whom Mr. Justice HARLAN joins, dissenting.

On the evening of February 16, 1961, the petitioner, Wilbert Rideau, was arrested and confined in the Calcasieu Parish jail in Lake Charles, Louisiana. The arrest arose out of a bank robbery and a subsequent kidnapping and homicide. On the night of his arrest petitioner made detailed oral and written confessions to the crimes, and on the following morning a sound film was made of an interview between the sheriff and petitioner in which he again admitted commission of the crimes. The film was broadcast on a local television station on February 17, 18, and 19, 1961.

On March 3, 1961, petitioner was arraigned on charges of armed robbery, kidnapping and murder. As required under the law of Louisiana, he pleaded not guilty to the two capital crimes, but he entered a plea of guilty to the charge of armed robbery. Counsel were appointed immediately, and they requested permission to withdraw the plea of guilty to armed robbery, which motion was granted. They then filed a motion to quash, and the State was required to elect under which count it wished to proceed. The State elected the murder count, and the trial was set for April 10, 1961.

The defense moved for a change of venue, which was denied after hearing. Thereupon a jury was empaneled and petitioner was tried and convicted of murder. The Louisiana Supreme Court affirmed and this Court now reverses that judgment, holding that the denial of petitioner's motion for change of venue was a deprivation of due process of law. Having searched the Court's opinion and the record, I am unable to find any deprivation of due process under the Fourteenth Amendment and I therefore dissent.

At the outset, two matters should be clearly established. First, I do not believe it within the province of law enforcement officers actively to cooperate in activities which tend to make more difficult the achievement of impartial justice. Therefore, if this case arose in a federal court, over which we exercise supervisory powers, I would vote to reverse the judgment before us. Cf. Marshall v. United States, 360 U.S. 310, 79 S.Ct. 1171, 3 L.Ed.2d 1250 (1959). It goes without saying, however, that there is a very significant difference between matters within the scope of our supervisory power and matters which reach the level of constitutional dimension. See, e.g., Stein v. People of State of New York, 346 U.S. 156, 187, 73 S.Ct. 1077, 1094, 97 L.Ed. 1522 (1953); Brown v. Allen, 344 U.S. 443, 476, 73 S.Ct. 397, 417, 97 L.Ed. 469 (1953).

Second, I agree fully with the Court that one is deprived of due process of law when he is tried in an environment so permeated with hostility that judicial proceedings can be 'but a hollow formality.' This proposition, and my position with regard thereto, are established in Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961). At this point I must part company with the Court, however, not so much because it deviates from the principles established in Irvin but because it applies no principles at all. It simply stops at this point, without establishing any substantial nexus between the televised 'interview' and petitioner's trial, which occurred almost two months later. Unless the adverse publicity is shown by the record to have fatally infected the trial, there is simply no basis for the Court's inference that the publicity, epitomized by the televised interview, called up some informal and illicit analogy to res judicata, making petitioner's trial a meaningless formality. See Beck v. Washington, 369 U.S. 541, 82 S.Ct. 955, 8 L.Ed.2d 98 (1962).

That the Court apparently does not realize the necessity of establishing this nexus is illustrated by its reliance on Brown v. Mississippi, 297 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682 (1936). That case and its progeny stand for the proposition that one may not constitutionally be convicted of a crime upon evidence including a confession involuntarily made. There can be no more clear nexus between the action of state officials before trial and the trial itself than when the results of that action are admitted in evidence at the trial. Here, of course, neither the filmed interview nor any transcript of it was shown or read to the jury. While the oral and written confessions made on the night of the arrest were admitted in evidence, the only argument for their exclusion made by the petitioner is that they were obtained at an interrogation when he had not been advised of his right to counsel and did not have counsel present. That argument is clearly answered by our decisions in Cicenia v. Lagay, 357 U.S. 504, 78 S.Ct. 1297, 2 L.Ed.2d 1523 (1958), and Crooker v. California, 357 U.S. 433, 78 S.Ct. 1287, 2 L.Ed.2d 1448 (1958).

The fact that the adverse publicity was not evidence in the case is not controlling, however, for we have recognized that such matter may, in unusual circumstances, fatally infect a trial when it enters the courtroom indelibly imbedded in the minds of the jurors. We found such a situation in Irvin v. Dowd, supra, where the continuous wave of publicity concerning the offense and the past record of the petitioner so permeated the area where he was tried that

'(a)n examination of the 2,783-page voir dire record shows     that 370 prospective jurors or almost 90% of those examined      on the point *  *  * entertained some opinion as to guilt      ranging in intensity from mere suspicion to absolute      certainty. A number admitted that, if they were in the     accused's place in the dock and he in theirs on the jury with      their opinions, they would not want him on a jury.' 366 U.S.,      at 727, 81 S.Ct., at 1645.

More important, of the 12 jurors finally placed in the jury box eight thought petitioner Irvin to be guilty. In view of those circumstances we unanimously reversed the judgment in that case, with the caveat that

'It is not required, however, that the jurors be totally     ignorant of the facts and issues involved. In these days of     swift, widespread and diverse methods of communication, an      important case can be expected to arouse the interest of the public in the vicinity, and      scarcely any of those best qualified to serve as jurors will      not have formed some impression or opinion as to the merits      of the case. This is particularly true in criminal cases. To     hold that the mere existence of any preconceived notion as to      the guilt or innocence of an accused, without more, is      sufficient to rebut the presumption of a prospective juror's      impartiality would be to establish an impossible standard.'      Id., at 722-723, 81 S.Ct., at 1642.

Thus, in Irvin, because of the complete permeation, imbedding opinions of guilt in the minds of 90% of the veniremen and two-thirds of the actual jury, we held that petitioner had been deprived of his constitutional right to an impartial tribunal. Compare Beck v. Washington, supra. We now face the question whether this is such a situation and, for that determination, we must examine the publicity involved, the hearing on the motion for change of venue and the record of the voir dire examination.

Initially, we face an obstacle in determining the pervasiveness of the televised interview, since the circulation of a television program is less susceptible of determination than that of a newspaper. The figures quoted by the Court as representing the number of people who 'saw and heard' the interview were given by the Program Director of the television station and represented the typical number of viewers at the times when the interview was broadcast, as determined by a rating service which had conducted a sampling some months previous to the broadcasts. The Director testified that those figures represented 'an approximate number and, as I say, there is no way you can prove this because communications is an intangible business * *  * .' Of course, assuming arguendo the accuracy of the figures given, there is no way of determining whether those figures are mutually inclusive or whether they represent different viewers on the different occasions. The record does give a more tangible indication of the effect of the publicity, however, in the hearing on the motion for change of venue. At that hearing five witnesses testified that, in their opinions, petitioner could not get a fair trial in the parish. Twenty-four witnesses testified that, in their opinions, petitioner could get a fair trial and a stipulation was entered that five more witnesses would testify that he could get a fair trial in the parish.

The most crucial evidence relates to the composition of the 12-man jury. Of the 12 members of the panel only three had seen the televised interview which had been shown almost two months before the trial. The petitioner does not assert, and the record does not show, that these three testified to holding opinions of petitioner's guilt. They did testify, however, that they

'could lay aside any opinion, give the defendant the     presumption of innocence as provided by law, base their      decision solely upon the evidence, and apply the law as given      by the court. As the judge stated in his per curiam: 'They     testified they could do so notwithstanding anything they may      have heard, seen or read of the case." 242 La. 431, 462, 137      So.2d 283, 295.

Further, two members of the jury held honorary Deputy Sheriff's commissions from the Sheriff's department. Neither of these men was in any way connected with the department as a deputy, neither had ever made any arrests and neither had ever received any pay from the department. They both testified that they used the honorary commissions only for their convenience. They testified that these honorary commissions would not affect their ability to serve as jurors in any way, and the trial judge concluded that this tenuous relationship with the State did not destroy their qualifications to serve. Cf. Frazier v. United States, 335 U.S. 497, 69 S.Ct. 201, 93 L.Ed. 187 (1948); United States v. Wood, 299 U.S. 123, 57 S.Ct. 177, 81 L.Ed. 78 (1936).

The right to a trial before a fair and impartial tribunal 'is a basic requirement of due process,' In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 625, 99 L.Ed. 942 (1955), and must be safeguarded with vigilance. As we recognized in Irvin, however, it is an impossible standard to require that tribunal to be a laboratory, completely sterilized and freed from any external factors. The determination of impartiality, in which demeanor plays such an important part, is particularly within the province of the trial judge. And when the jurors testify that they can discount the influence of external factors and meet the standard imposed by the Fourteenth Amendment, that assurance is not lightly to be discarded. When the circumstances are unusually compelling, as in Irvin, the assurances may be discarded, but 'it is not asking too much that the burden of showing essential unfairness be sustained by him who claims such injustice and seeks to have the result set aside * *  * .' Adams v. United States ex rel. McCann, 317 U.S. 269, 281, 63 S.Ct. 236, 242, 87 L.Ed. 268 (1942). Since the petitioner clearly has not met that burden, I would affirm the judgment before us.