UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
UNITED STATES OF AMERICA,
xxxxxxx xxxxxxx, III, et al.,
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JOINT REPLY BRIEF FOR APPELLANTS
SUMMARY OF ARGUMENT
In our joint opening brief, we established that the cumulative effect of the district court's errors deprived the defendants of a fair trial. We stand on the discussion in our opening brief regarding discovery violations (Point IV), cross-examination restrictions (Point IV), and wiretap suppression (Point V). Accordingly, in this joint reply brief, the defendants address three interrelated errors of the trial judge -- empaneling an anonymous and sequestered jury, conducting an inadequate voir dire on publicity exposure, and displaying hostility and antagonism towards the defense through the proceedings. Combined, these errors affected the entire conduct of the trial from start to finish.
In defending the district court's actions, the government understates the magnitude of these fundamental defects in the trial. First, in arguing that the court did not abuse its discretion in withholding the jurors' identities to protect their safety and preserve their privacy, the prosecution fails to acknowledge that there was no credible evidence to believe that the jury needed protection from the defendants. Moreover, sequestration alone would have preserved the jurors' privacy. Contrary to the government's contention, the court did not give a neutral explanation to the jury as to the reasons for their anonymity but, instead, merely made a passing reference to their anonymity during his final jury charge. Given the negative publicity about the defendants and the extreme security precautions taken during the trial, the jurors only could have drawn from their anonymity prejudicial inferences against the defendants.
Second, the government claims that the use of a jury questionnaire and the trial court's limited questioning of prospective jurors regarding publicity exposure did not constitute an abuse of discretion because the media coverage of this case was not pervasive and inflammatory. A review of the publicity materials contained in the Joint Appendix indicates that the coverage went far beyond the evidence to be admitted at the trial and was extremely prejudicial in nature. Moreover, neither the jury questionnaires nor the voir dire examination directly addressed the prospective jurors' exposure to or the effects of adverse publicity. Despite repeated defense requests, the trial court refused to examine individually each juror who indicated exposure to prejudicial publicity. Instead, after first admonishing each panel en masse that it was their duty to decide the case based only on the evidence presented in court, the judge asked the venire members if they could set aside any prejudicial publicity to which they had been exposed. Without ever observing the potential jurors' demeanor, the court required them to affirm their impartiality by remaining silent. This perfunctory and inadequate examination violates this Court's clear standards governing the scope of voir dire in high publicity cases.
Finally, the prosecution blames defense counsel for the trial judge's prejudicial conduct throughout the proceedings and defends the court's actions as justified by the difficult trial conditions. However, the government cannot explain away the judge's continual agitation and hostility towards defense counsel both in and out of the jury's presence. In addition to severely criticizing the defendants' attorneys, the court also threatened them with sanctions in the presence of the jury. Cumulatively, the court's comments, threats, and nonverbal actions directed towards the defense destroyed the judge's requisite appearance of impartiality. The prejudice resulting from each of these fundamental deficiencies in the trial is manifest. In combination, the errors devastated the defendants' right to a fair trial.
I.THE TRIAL COURT'S ABUSE OF DISCRETION IN EMPANELING AN ANONYMOUS AND SEQUESTERED JURY REQUIRES REVERSAL
Until the trial court decided sua sponte to empanel the District of Columbia's first anonymous and sequestered jury, the distinguishing feature of this drug conspiracy case was the blaze of adverse pretrial publicity ignited by government sources. [A. III. 1-118, 130-316] In their opening brief, defendants argued that the court abused its discretion in bypassing the options of change of venue or sequestration in favor of the more draconian "solution" for the publicity problem -- a jury which was both anonymous and sequestered. In response, the government has averred for the first time on appeal that the circumstances of this case were so rare as to warrant jury anonymity , arguing that an anonymous jury was necessary to protect juror safety, juror privacy and the integrity of the judicial process. (Gov. Br. 59-67). The record does not support these contentions.
Other circuits have resorted to use of anonymous juries only on those occasions in which there was "strong reason to believe that the jury needs protection." United States v. Vario, 943 F.2d 236, 239 (2d Cir. 1991), cert. denied, 112 S. Ct. 882 (1992). However, these cases feature the violent activities of notorious criminal syndicates, generally accompanied by widespread pretrial publicity. Moreover, courts have held that
[t]he invocation of the words `organized crime,' `mob,' or `Mafia,' unless there is something more, does not warrant an anonymous jury. This `something more' can be a demonstrable history or likelihood of obstruction of justice on a showing that trial evidence will depict a pattern of violence by the defendant and his associates such as would cause a juror to reasonably fear for his own safety.
Id. at 241; see also United States v. Crockett, 979 F.2d 1204, 1216 (7th Cir. 1992), cert. denied, 113 S. Ct. 1617 (1993).
Although the government would discount the "organized crime" nature of cases in other circuits in which anonymous juries have been used, defendants note that it has been a significant underlying factor in cases in which anonymous juries were found to be necessary. Those cases are readily distinguishable from this one, where the familial relationship of a number of the "xxxxxxx" defendants did not cause the group to metastasize into a
Mafia-type organization. Nor did "something more" exist in this case.
"Something more" was present in Crockett, a RICO conspiracy and extortion carried out by threats of violence, attempts to intimidate witnesses, and the murder of a cooperating witness by members of organized crime. See also United States v. Eufrasio, 935 F.2d 553 (3d Cir.) (conspiracy, racketeering and murder by members of organized crime family in Philadelphia), cert. denied, 112 S. Ct. 340 (1991); United States v. Ferguson, 758 F.2d 843 (2d Cir.) (RICO conspiracy, racketeering, armed bank robbery and murder by members of organized crime where trial evidence was to include discussions of killing government witnesses and circulation of a wanted dead-or-alive poster of another government witness), cert. denied, 474 U.S. 1032 (1985); United States v. Paccione, 949 F.2d 1183 (2d Cir. 1991) (RICO waste-dumping conspiracy by defendants tied to organized crime; one codefendant murdered, another made violent threats), cert. denied, 112 S. Ct. 3029 (1992); United States v. Thomas, 757 F.2d 1359 (2d Cir. 1985) (narcotics, firearms, RICO and conspiracy to murder government witnesses charged against organized crime members and defendant allegedly bribed juror in prior trial which ended in hung jury), cert. denied, 474 U.S. 818 (1986); United States v. Tutino, 883 F.2d 1125, 1128 (2d Cir. 1989) (heroin conspiracy involving defendants with histories of extortion, organized crime affiliation and juror tampering), cert. denied, 493 U.S. 1081 (1990); United States v. Vario, 943 F.2d 236 at 239-240 (RICO conspiracy by member of Lucchese organized crime family whose co-conspirator had tampered with grand juror in furtherance of conspiracy).
Far fewer precedents exist for juries which are both anonymous and sequestered. In those exceptional cases, the defendants posed a demonstrable and documented risk to the integrity of the judicial process. In United States v. Amuso, 21 F.3d 1251 (2d Cir.), cert. denied, 115 S. Ct. 326 (1994), the alleged head of the Luchese organization was charged with racketeering, extortion, fraud and murder. Three suspected informants had been murdered at his behest; a fourth was shot twelve times but survived to testify at trial. Given the prior attempts to interfere with witnesses and to obstruct the criminal process, sequestration and anonymity were upheld. Mafia Don John Gotti's well-known and documented predilection for jury tampering was considered a sufficient basis to sequester the anonymous jury in United States v. Locascio, 6 F.3d 924, 947 (2d Cir. 1993), cert. denied, 114 S. Ct. 1645 (1994). Likewise, in United States v. Scarfo, 850 F.2d 1015, 1017 (3d Cir.), cert. denied, 488 U.S. 910 (1988), pretrial evidence documenting the killing of one prospective witness, the murder of a judge and attempts to bribe other judges provided an ample basis for an anonymous and sequestered jury. Similarly, in United States v. Thomas, 757 F.2d at 1364, the government introduced evidence at a pretrial hearing about the murders of several suspected informants and bribery of a juror in a previous trial.
Even where defendants have a history of subversion of the judicial system, sequestration does not always accompany anonymity. For example, in United States v. Persico, 832 F.2d 705 (2d Cir. 1987), cert. denied, 486 U.S. 1022 (1988), a RICO conspiracy case which included bribery of federal agents and acts of violence by members of the Colombo family, the anonymous jury was not sequestered until deliberations despite the defendants' history of corruption and obstruction of the criminal justice system.
Unlike the trial courts in the cited cases, the judge in this case failed to provide the jury with any explanation for its anonymity except for a fleeting comment buried among its closing instructions. Defendants have found no precedent in the reported cases for a jury which was anonymous, sequestered, and left in the dark until the very end of the case about its anonymity. Although the government characterizes the court's explanation as "neutral" (Gov. Br. 69), it may more fairly be described as a passing reference during the final charge to the jury.
B.The court lacked strong reason to believe that the
jury needed protection from the defendants.
The government argues that the fact that three of the eleven defendants were charged with acts of violence (in counts which were severed for separate trials) justifies its position that there was a serious, demonstrated threat to juror safety. (Gov. Br. 59-61) The government's argument fails to recognize the overwhelming lack of evidence to corroborate its contention that jurors were potential targets in this case.
There is a distinct difference between serious charges of violent crimes and allegations of conduct which subvert the judicial system. "[D]espite charges of violent conduct contained in an indictment, some defendants `seem to draw the line at interfering with those who are engaged in the administration of the judicial process.'" United States v. Millan-Colon, 834 F. Supp. 78, 83 (S.D.N.Y. 1993) (citing United States v. Coonan, 664 F. Supp. 861, 863 (S.D.N.Y. 1987)) (court distinguished between "allegations consistent with conduct charged in the indictment and allegations of conduct aimed at the judicial process.") See United States v. Melendez, 743 F. Supp. 134 (E.D.N.Y. 1990) (court denied motion for anonymous jury even though allegations in the indictment included violence but not violence directed against the judicial process). Lacking any reliable evidence that these defendants showed any inclination to tamper with witnesses or grand jurors, the trial court had no colorable reason to believe that any petit juror needed protection from any defendant in this case.
A search of the reported cases reveals only one instance of jury tampering in the District of Columbia. Long before these defendants were born, one Bennie Caldwell paid $1,000 to a person whose mission was to infiltrate a jury and "keep him posted." Caldwell v. United States, 218 F.2d 370, 371 (D.C. Cir. 1954), cert. denied, 349 U.S. 930 (1955). Unlike those in New York, Philadelphia and Chicago, defendants charged with crimes in the District of Columbia have not compounded their legal difficulties with jury tampering.
Furthermore, the trial court did not possess evidence that the defendants or their associates had interfered with any of the government's witnesses from which he might have inferred a larger threat. On July 27, 1989, the trial court directed the government to submit, ex parte and under seal, evidence of risk to its witnesses. [A. I. 225-228] Approximately three weeks later, the government filed a remarkably brief unsworn document containing three statements which were founded on double hearsay at best.
[A. XVIII. 1-2] Despite the fact that the submission was never disclosed to the defense, the government did not identify its sources, and made no representations even as to the credibility or reliability of the sources. Defendants further note that the prosecution in this case failed to comply with 28 U.S.C. § 1746, which requires that the instrument be declared under penalty of perjury.
In its first allegation, the government reported that two unidentified sources had reported that xxxxxxx xxxxxxx, Jr. (father of the lead defendant and ex-husband of a codefendant) intended to "take care of the witnesses." Next, an Assistant United States Attorney had received a telephone call from a protected government witness's alleged relative, who sought to discover the witness's
whereabouts. As they stand, these allegations lack sufficient information from which to infer that a viable threat to the integrity of the jury existed. Finally, a number of civilian witnesses had expressed fear for their safety and wished that their identities be withheld as long as possible. See Gov. Br. 54-55. These witness complaints, although common in criminal cases, are insufficient to form the basis for the empaneling of an anonymous jury.
Nowhere in the government's submission was there any evidence that any potential witness was actually threatened. For the first time on appeal, the government cites as evidence of tampering the fact that potential government witness Deborah Phillips was shot in the leg in March of 1989 after a letter regarding her cooperation had been sent to the house where she resided with one of the codefendants. Gov. Br. 62, 10/19/89 Tr. 33-34. The record below does not support an inference that the shooter was in any way related to the defendants in this case. (9/28/89 Tr. 31-32) Moreover, the government knew about the Phillips incident months before the trial court requested a proffer regarding the safety of witnesses. If the government had reason to believe in August of 1989 that its witness had been the victim of a violent attempt by the defendants to obstruct justice, the information surely would have appeared in its ex parte pleading.
The government argues that events which occurred after the
anonymous jury was empaneled justify the district court's unwarranted burdening of the due process rights of the defendants in this case. Gov. Br. 62-63. While this argument is analogous to Monday-morning quarterbacking of the worst order, the factual bases for the attempted nunc pro tunc justification of the anonymity ruling are insufficient to support the trial court's decision.
As the government concedes, nothing is known about an alleged threat to a juror which occurred during jury selection. Gov. Br. 62 n.20. At the time that the defendants raised the issue during jury selection, the prosecution denied that a threat existed. (9/12/89 Tr. 2084) The alleged threat to the courtroom staff member, in the form of a drawing, appears in the Joint Appendix. [A. XVIII. 3-4] As the Court can see for itself, the drawing is non-threatening and any speculation about its intended message is unsupported by any evidence in the record. Similarly unpersuasive was a government agent's statement that codefendant Melvin Butler was seen mouthing a threat to government witness James Mathis. Mathis, who was present and aware of the alleged incident, subsequently testified under oath that he did not perceive it as a threat. (9/4/90 Tr. 69) Nor did the alleged hand gestures of codefendant John Monford rise to the level of threats and tampering which pose a real danger to the integrity of the judicial system.
None of the instances cited by the government are unusual events in criminal trials. In this case, in which defendants were well aware that they were being tried in a secured courtroom by an anonymous jury amidst unprecedented security precautions, disruptions to the trial process were minimal.
C.An anonymous jury was not necessary to relieve
"Justice requires that when a serious threat to juror safety reasonably is found to exist, precautionary measures must be taken." United States v. Thomas, 757 F.2d at 1364. No such threat existed in this case. Moreover, in cases where jurors fear for their own safety is cited as a basis for an anonymous jury, the trial evidence has included charges of violence and obstruction of justice and courts have concluded that jurors who hear evidence of violent attacks upon the judicial system may have reason to fear for their own welfare.
In United States v. Scarfo, 850 F.2d at 1017, the pretrial proceedings revealed that the evidence at trial would include the murders of a prospective witness and a judge, as well as attempts to bribe other judges. That evidence, "if believed by the jurors, might well have caused them to be apprehensive -- not only for their own safety but, perhaps more acutely, for the safety of their families." Id. at 1023. In this case, although three murders were alleged in the superseding indictment, all charges involving acts of violence were severed from the trial. No trial evidence of acts of violence allegedly committed by these defendants was allowed.
Suggesting that the jurors may have learned of the violent reputations of the defendants through the media, the government argues that the jurors may have feared recrimination. This contention is wholly inconsistent with the government's argument point "Pretrial Publicity Did Not Contaminate the Jury." Gov. Br. 76-99. In that point, the government maintains that the articles included "little inflammatory rhetoric" and suggested that the "reported link between xxxxxxx and up to 30 homicides, while
eye-catching, was less sensational news to this large city." Gov. Br. 85.
While adverse publicity -- attributed largely to government sources -- abounded, the information which appeared in the media was not sufficient to create a reasonable fear of retaliation in the mind of any juror. In contrast with the instant case, no anonymous jury was empaneled in Khaalis v. United States, 408 A.2d 313 (D.C. 1979), cert. denied, 444 U.S. 1092 (1980), despite the fact that the armed defendants there had held this city hostage and demonstrated an ability to execute organized plans of violent activity. Nor was an anonymous jury found to be necessary in the trial of United States v. Yunis, 924 F.2d 1086 (D.C. Cir. 1991) (Palestinian terrorist).
Finally, the government is ill-positioned to advance this argument. The media did publish stories about acts of violence attributed to some of the defendants in this case. The source, invariably, was the government. Def. Br. 37-39. Having lit the fire of media attention, the government cannot in good faith argue that the presumption of innocence should be smothered in order to solve a problem of the government's own creation.
D.Sequestration alone would have preserved the
The government argues that anonymity was necessary to protect the privacy of the jurors, both during and after the trial. Gov. Br. 66-67. To the extent that any remote possibility of invasion of juror privacy existed, sequestration was the remedy.
Despite the high level of publicity which has accompanied criminal trials in this jurisdiction during the last ten years, sequestration of juries has occurred only during deliberations. See United States v. George, Crim. Nos. 91-0521, 92-015 (RCL), 1992 U.S. Dist. LEXIS 12397 (D.D.C. 1992); United States v. Barry, Crim. No. 90-00068-01 (TPJ), U.S. Dist. LEXIS 14090 (D.D.C. Oct. 26, 1990); United States v. North, 713 F. Supp. 1453 (D.D.C. 1989) and United States v. Poindexter, Crim. No. 88-00080-01 (HHG), 1990 U.S. Dist. LEXIS 3501 (D.D.C. April 4, 1990). Prior to this case, the last full sequestration of a jury, according to cited cases in this jurisdiction, occurred during the "Watergate" trial. United States v. Mitchell, 410 F. Supp. 1201, 1202 (D.D.C. 1976); United States v. Mitchell, 385 F. Supp. 1190, 1192 (D.D.C. 1974). See also Blair v. United States, 401 F.2d 387, 389 (D.C. Cir. 1968) (jury sequestered to keep information regarding inadmissible death of police officer from coming to its attention).
In every high-profile criminal case which preceded this one, sequestration alone has been the remedy. Defendants respectfully submit that the trial court's innovative employment of an anonymous jury in this case unnecessarily sabotaged their right to a fair trial before an unbiased jury.
E.The court's failure to conduct a hearing was error.
In the government's view, the trial court's anonymity order did not reflect arbitrary decision-making. Gov. Br. 77. Defendants strongly disagree. Prior to making the unilateral decision to empanel an anonymous jury, the trial court requested information only from the government. No hearing was conducted, although the court was aware that the government, the central repository of negative information about the defendants, did not advocate either a totally anonymous or a sequestered jury. Nor did the court allow the defense to be heard on the issue. Instead, the court initiated a pattern of acting by fiat -- without hearing evidence or making findings of fact -- on matters relating to the conduct of the trial.
For example, five weeks after the trial court ordered that the jury would be anonymous and sequestered, it closed the courtroom to the public. As that order was immediately appealable, the closure was brief. After a panel of this Court found that the gravity of closure required that interested parties have an opportunity to be heard the trial court reopened the courtroom. Surely the imposition of an anonymous and sequestered jury upon defendants whose life-long liberty was at stake was sufficiently grave a matter as to require a full evidentiary hearing at which interested parties -- the defendants -- would be given the opportunity to confront any supporting evidence. Therefore, contrary to the government's contention, the court erred in ordering an anonymous jury without even conducting an evidentiary hearing.
F.The district court provided a prejudicial explanation
to the jury rather than a neutral one as to the
reason for anonymity.
The government inaccurately argues that the district court consistently provided a "neutral explanation" to the jury as the reason for the anonymity. Gov. Br. 69. A neutral explanation is an explanation that informs the jury that the reason for anonymity is a reason other than a threat to their personal safety. (See Def. Br. 17-18 as to approaches of the Second and Third Circuits on this matter). To use the construction of the government, a neutral explanation is a `plausible and nonprejudicial reason for not disclosing their [i.e., jurors'] identities or for taking other security measures', quoting United States v. Paccione, 949 F.2d at 1216-1217). Gov. Br. 68.
The explanation given to the jurors effectively informed them that they were anonymous because the district court was concerned about their personal safety. Contrary to the government's description of the explanation (Gov. Br. 69), the jury was told that: (a) anonymous juries are a common practice in federal courts; (b) they were anonymous because of scrutiny from the press and "others" and to "avoid any outside or extra-judicial pressures or conduct" (see Def. Br. 21); and (c) they were anonymous for their own protection. See Def. Br. 22. Significantly, the jurors were not affirmatively told that there was no threat to their personal safety or that the sole reason for anonymity and sequestration was media scrutiny. The explanation, taken as a whole, simply does not constitute a "plausible and non-prejudicial" explanation.
What the district court meant by the terms "others" who might scrutinize them, "outside the extra-judicial pressures or conduct" and "for their own protection," were all left to the imagination of the jurors. In the context of the security measures taken at trial, the allegations in the indictment, and the prejudicial conduct of the district court towards the defendants (see Def. Br. 46-68), it is likely that the jurors drew negative and prejudicial inferences against the defendants from their own anonymity. The jury deliberations were almost certainly irreparably tainted by either anger towards the defendants or fear of them. Therefore, this Court cannot be reasonably assured that the jurors impartially weighed the evidence presented at trial and rendered its verdicts based on reasonable inferences drawn from that evidence. For these reasons, the defendants were denied a fair and impartial trial within the meaning of the Fifth and Sixth Amendments to the Constitution.
II.THE COURT ERRED IN CONDUCTING A PERFUNCTORY VOIR DIRE EXAMINATION THAT DID NOT ADEQUATELY DISPEL PROBABLE PREJUDICE RESULTING FROM PERVASIVE PUBLICITY AND DID NOT ENABLE DEFENSE COUNSEL TO EXERCISE PEREMPTORY AND CAUSE CHALLENGES INTELLIGENTLY, IN VIOLATION OF DEFENDANTS' RIGHT TO A FAIR AND IMPARTIAL JURY.
Although the government argues that the use of a jury questionnaire and the trial court's limited questioning of prospective jurors regarding the effects of publicity did not constitute an abuse of discretion (Gov. Br. 87-99), the prosecution acknowledges that "[i]n any trial there is a danger that jurors who profess impartiality are in fact biased toward one side or the other, whether they realize it or not." Gov. Br. 91. The danger that at least some of the jurors who ultimately convicted the defendants in this trial -- the first anonymous jurors in the long history of jury trials in this district -- were biased against them because of the jurors' exposure to prejudicial publicity preceding the trial and during the first two days of jury selection is manifest. Because of the wholly inadequate voir dire examination conducted by the trial judge, it cannot be said with any reasonable assurance that this jury was fair and impartial -- a critical constitutional component of a fair trial. The pertinent facts speak for themselves.
The defendants' trial on charges that they were members of a notorious drug conspiracy was preceded by exceptionally pervasive and inflammatory publicity, much of which was generated by the government itself. See Def. Br. 27-31. The impact of the pretrial publicity was exacerbated by the deluge of publicity surrounding the first day of jury selection, including media reports that the identity of the jurors would not be disclosed as a security measure.
In their questionnaires, 5 of the 12 jurors who ultimately deliberated and returned verdicts -- including the foreperson -- admitted exposure to publicity about the case. Only 1 of those 5 jurors was individually voir dired. In fact, only 2 of the 12 deliberating jurors underwent separate questioning. (9/13/89 Tr. 2278-2283 (Juror #645); 9/14/89 Tr. 71-82 (Juror #134))
Although the trial judge had agreed at a pretrial hearing that an inquiry into exposure to publicity was essential, the court failed directly to address -- either in the jury questionnaires or during the voir dire examination -- the jurors' exposure to or the effects of such publicity. Because of the court's ambiguous and inadequate questioning, it cannot be determined how many prospective jurors actually were exposed to publicity but failed to speak up and therefore were not examined at all. Without ever observing their demeanor, the court required the potential jurors to affirm their impartiality by merely remaining mute. Their silence was deafening.
It is clear that impartiality findings cannot be based on mere silence and that a trial court must assess the demeanor of each juror disclaiming bias. See, e.g., United States v. Haldeman, 559 F.2d 31, 67 n.51 (D.C. Cir. 1976) (en banc), cert. denied, 431 U.S. 933 (1977); United States v. Dellinger, 472 F.2d 340, 346 (7th Cir. 1972), cert. denied, 410 U.S. 970 (1973); United States v. Silverthorne, 400 F.2d 627, 638-39 (9th Cir. 1968), cert. denied, 400 U.S. 1022 (1971). When a prospective juror has been exposed to prejudicial publicity, a trial court cannot effectively evaluate impartiality without first establishing the extent of the juror's knowledge about the case and whether that knowledge has caused the juror to form an opinion on the defendants' guilt or innocence. Despite repeated requests by the defense, the trial judge here refused to elicit this essential information. In sum, the voir dire procedures employed in this case were completely insufficient to eliminate the risk that because of their exposure to publicity, some of the jurors were predisposed against the defendants. This Court now has the opportunity and, most respectfully, the obligation to rectify this injustice.
B.The extensive publicity about this case raised
a significant possibility of juror prejudice.
Although the government claims that we have "overrate[d] the prejudicial impact" of the pretrial publicity, about this case, it concedes that the publicity was "substantial." Gov. Br. 76-77. Not surprisingly, the prosecution avoids any discussion of the nature of the information that was disseminated by the media. See Def. Br. 27-34 (discussing pretrial publicity). The prior discussion of the extensive pretrial publicity indicates that there was a significant possibility of prejudice against the defendants because of its sensational nature, which emphasized the defendants' alleged violence, lavish lifestyles, and international drug connections. See also Def. Br. 27-29. Moreover, the news coverage intensified during the two weeks immediately preceding the commencement of the trial and culminated in a swirl of publicity surrounding the first day of jury selection.
The prosecution contends that the media reports of this case were "generally factual in nature." Gov. Br. 93. However, a summary review of the publicity during the ten days before the jury was empaneled reflects that the coverage went far beyond the evidence to be admitted at the trial and was inflammatory and corrosive in nature.
Beginning on September 3, 1989, about one week before jury selection commenced, the Washington Post published a three-part series entitled "The Cocaine Flow: How Drugs Come to Washington." [A. III. 278-287] The first article, prominently displayed on the front page of the paper, traced a cocaine trail from the Colombian jungles through Los Angeles to Morton and Orleans Place, N.E., Washington, D.C., the alleged distribution center of the "xxxxxxx organization." The story reported that codefendant Butler, an L.A. Crips gang member, was xxxxxxx's connection to West Coast distributors and Colombian cartel members. It was accompanied by photos of Cali Cartel leaders, defendant xxxxxxx's alleged California suppliers, a drug-related murder victim in Washington, D.C., and a sketch of xxxxxxx next to a map of the Americas reflecting the path of drugs from Colombia to the District of Columbia. [A. III. 278-282]
The second installment, published the next day, was also carried on the front page and was illustrated with a sketch of the Cali Cartel's Scorpion symbol and photographs of bricks of cocaine weighing over 1100 pounds that had been seized in Missouri and were reportedly traced to defendants xxxxxxx and Butler. The story indicated that the Colombian cartels, in conjunction with the Crips and Bloods gangs, who allegedly committed 452 murders in Los Angeles in 1988, were trafficking drugs to Washington, D.C. and other inner cities. [A. III. 283-287]
The last article in the series appeared on September 5th and focused on defendant xxxxxxx, "the city's leading cocaine dealer" and his "army of workers." The story chronicled the defendants' alleged drug operation, which U.S. Attorney Jay Stephens compared to "La Cosa Nostra," and reported that the trial judge "had ordered strict security measures for the upcoming trial, including keeping secret the names and addresses of jurors." [A. III. 30-305] The series ended six days before the trial began.
The coverage of the xxxxxxx case was only part of the public furor over the national drug problem, which dominated the media at that time. A presidential address to the nation on the "War on Drugs", a Post article on the justice system in Colombia, a William Raspberry column discussing the xxxxxxx defendants and other "wealthy" drug dealers, and a television report that the xxxxxxx jury would be sequestered in a secret location, came directly on the heels of the Post series. [A. IV. 232-242]
On the day before jury selection, in addition to the first segment of yet another three-part series on the disastrous effects on children of the crack cocaine epidemic in the city, the Post featured a story on the xxxxxxx trial, reporting that the first anonymous jury in the District of Columbia would be empaneled, a practice frequently utilized in organized crime cases. [A. IV. 243-250] The article noted that the trial would be held in a "heavily fortified courtroom" containing a "bullet-proof shield," quoted the trial judge as stating that anonymity and sequestration would protect the jurors from "fear of retaliation against themselves or their families," and discussed the specifics of the "21-page [jury] questionnaire." As if all that was not sufficiently prejudicial, the article also asserted that the police had "linked members of the [xxxxxxx] group to at least 30 homicides," characterizing the defendants as the "District's largest cocaine distribution network." [A. IV. 249-250]
As expected, the media coverage of the jury selection was extensive. On September 11, 1989, all evening local news shows carried stories about the first day of jury selection. Notwithstanding the trial court's assurances to the prospective jurors that use of the secured courtroom was commonplace (9/11/89 Tr. 1958-1960, 2009-2010), the media reported that the security precautions were "unusual" and "unprecedented," that the plexiglass divider in the courtroom was really a "bullet-proof shield," and that the jurors' unprecedented anonymity was "for security reasons." The television reports were accompanied by pictures of pre-dawn arrivals of the defendants guarded by armed Marshals and sketches of the secured courtroom.
Additional news stories reiterated the government's attribution of one-third of the District's cocaine trade and 30 murders to the defendants, reported on chief prosecutor Jay Stephens's morality message to the District's children, and
re-emphasized the defendants' alleged connections to the Crips and the Colombian cartels. [Videotapes]
Television coverage of the trial continued throughout the second day of jury selection. [Videotapes] Moreover, the Washington Times published an article on September 12th, noting that members of the juror pool had left the courthouse the previous evening escorted by "heavily armed U.S. Marshals." [A. IV. 263-266] Because the trial judge failed to admonish the prospective jurors until September 12th (panels 1 and 2) and 13th (panels 3 and 4), respectively, to avoid any publicity about the case, there is more than a significant possibility that they were exposed to this torrent of adverse publicity.
Given the significant possibility of prejudice due to pretrial publicity, the trial court was obligated to take extra care to ensure that prospective jurors did not harbor preconceptions of the defendants' guilt. Instead, by conducting a restrictive and wholly inadequate voir dire examination regarding exposure to publicity, the judge created a significant possibility that prejudice was not dispelled during jury selection and adversely influenced the jury's deliberations in this case.
C.The court failed to ask in the jury questionnaires
or during the voir dire examination any direct
questions regarding exposure to and effects of
pretrial and mid-jury selection publicity.
Where there is extensive negative publicity, such as in the instant case, the trial court must permit "searching questioning of potential jurors . . . to screen out those with fixed opinions as to guilt or innocence." Nebraska Press Assn. v. Stuart, 427 U.S. 539, 564 (1976). The government argues that the juror questionnaires coupled with the voir dire examination constituted a sufficient inquiry into exposure to prejudicial publicity. Gov. Br. 89-90. However, this contention is not supported by the record as the jurors were never asked directly -- in either the questionnaires or during the general voir dire -- whether they had been exposed to adverse publicity and how that exposure had affected their attitude toward the defendants.
Contrary to the government's assertion that the jury questionnaire established which jurors were aware of the media coverage of this case (Gov. Br. 90), the questionnaire failed to directly address the publicity issue, despite defense requests. (8/9/89 Tr. 755-56) The questionnaire did contain one multi-part question concerning the newspapers, magazines, and television programs "regularly" read or watched by the venire. [A. IV. 14-15; #27] The only other question that was even tangentially related to exposure to pretrial publicity ambiguously asked the prospective jurors whether they "personally, or any member of [their] immediate family, kn[e]w or ha[d] any connection (personal, business, or social) with any of [the defendants or other listed individuals involved in the case], or ha[d] heard of any of them . . .."
[A. IV. 16; #30] Thus, neither question asked whether they had "heard," seen, or read about any of the defendants through the media.
To support its argument that the pretrial publicity was not extensive, the government notes that only about one-third of the jurors had "heard" of any of the defendants (Gov. Br. 79), and that only four of the deliberating jurors indicated that they had "heard" of lead defendant xxxxxxx. Gov. Br. 79. Because of the inartful phrasing of question #30, these statistics are meaningless. (See, e.g., 9/12/89 Tr. 2175-2176 (juror admits to having "misread" #30)) The ambiguity of question #30 is underscored by two facts. First, although all 12 deliberating jurors indicated that they regularly read the Washington Post and most also watched television news regularly, only 4 jurors responded affirmatively to #30. [A. IV. 16-17, 35-36, 92-93, 149-150] Second, one of the deliberating jurors left #30 blank but indicated elsewhere that she had already formed an opinion of the defendants' "character," undoubtedly from her exposure to news reports. [A. IV. 169] The government mistakenly counts this juror (#134) as one of the 8 deliberating jurors who "knew nothing" about the case. Gov. Br. 78.
The jury questionnaire's ambiguity could have been cured had the trial court permitted inquiries regarding publicity exposure, either in the questionnaire itself or during voir dire. Defense requests for a particularized examination of this issue were denied. (9/5/89 Tr. 1600, 1602, 1604, 1605, 1632-1633) The trial judge opined that the sole purpose of voir dire was " to determine, broadly speaking, only one question, and that is, whether these people can put anything they may have heard or read aside . . .." (9/5/89 Tr. 1603)
The court conducted voir dire of four jury panels over four days. Contrary to the government's contention that the judge noted to each panel the extensive media coverage and asked whether the panel members would be able to set it aside and render a verdict based solely on the evidence in the case (Gov. Br. 79-80), the court failed to ask whether any juror had read, heard, or seen media reports about the case. Instead, the judge relied solely on their silent affirmations of impartiality. Moreover, it was not until the second and third days of jury selection that the court instructed them not to read, listen, or view any news reports about the case. Given the media's extensive coverage of the jury selection, this omission was disastrous.
The first day of jury selection generated a media frenzy. Before voir dire resumed the next day, the defense informed the court of the intensified news coverage of the trial. (9/12/89 Tr. 2058-2077) Given this glut of prejudicial publicity at a critical time when the prospective jurors were involved in the case but not yet selected and sequestered, the defense renewed their request for individual voir dire on media exposure, particularly the highly prejudicial overnight news reports.
The government claims it was sufficient for the court to simply ask whether panel members could disregard exposure to publicity and then examine only those who indicated an inability to do so. Gov. Br. 90-91. However, the record of the second day of jury selection clearly evidences the defects in the government's argument.
Although the judge was fully informed by the defense about the extent of the overnight publicity, the court still refused to inquire and, instead, admonished the jury as follows:
Now, as to those of you who may have read or seen something about this case, the question, therefore, is whether you will be able to put aside anything you might have read or heard about this case before this very moment and render a fair and impartial verdict based solely on what you see and hear in this courtroom after you are selected.
I will assume that all of you have read about this or similar cases. I will further assume that those of you who do not rise at this point even though you have read or seen something in the electronic or print media, as good citizens of this community, agree, if selected, to render a fair and impartial verdict based solely on the evidence in this case.
If you cannot do that, please rise at this time and come forward to the bench.
(9/12/89 Tr. 2089) (emphasis added).
By arguing that the court's admonition was "quite straight forward" (Gov. Br. 89), the government misses the point, which is that the court's instruction to the entire panel failed to address exposure to prejudicial publicity and its effects on each prospective juror's ability to render an impartial verdict. By refusing to conduct a full inquiry into these issues, the judge failed to comply with procedures adopted by this Court and recommended by the American Bar Association when potentially prejudicial publicity is disseminated during a trial:
If it is determined that material disseminated during the trial goes beyond the record on which the case is to be submitted to the jury and raises serious questions of possible prejudice, the court may on its own motion or shall on motion of either party question each juror, out of the presence of the others, about his exposure to that material. The examination shall take place in the presence of counsel, and an accurate record of the examination shall be kept.
ABA Standards Relating to Fair Trial and Free Press § 3.5(f) (1968) (emphasis added) ("ABA Standards"). In accordance with the ABA Standards, given the inflammatory nature of the overnight publicity, the district court was required to examine each panel member separately to determine the extent of contact with the damaging publicity and the extent of any resulting prejudice. The district court's denial of defense motions to comply with this procedure was error that requires reversal of the defendants' convictions in the exercise of this Court's supervisory power over the district court. See United States v. Herring, 568 F.2d 1099, 1105 (5th Cir. 1978) (trial court's failure to question jurors as to exposure to prejudicial publicity which arose during critical point in trial requires reversal as exercise of appellate court's supervisory powers).
The district court's general admonition to the panel members that they would have to decide the case strictly from the evidence presented in court was insufficient to root out possible prejudice. At a minimum, the judge was required to ask the prospective jurors if they had been exposed to the overnight publicity. Because the judge did not know which jurors had been exposed and whether they had been prejudiced, he effectively permitted the jurors to make their own determinations of impartiality. To make matters worse, the court suggested to the jurors that "as good citizens of th[e] community," they should be able to be fair and impartial even in the face of the prejudicial publicity. Thus, the voir dire procedures were inadequate to protect the defendants' rights to an impartial jury under the Sixth Amendment. See Jordan v. Lippman, 763 F.2d 1265, 1272-1282 (11th Cir. 1985) (trial court's failure to ask prospective jurors whether they had been exposed to prejudicial publicity during weekend recess between end of voir dire and actual selection of jury violated defendant's constitutional rights to impartial jury and due process).
As it had done with the first two panels, the court repeatedly instructed panels three and four that exposure to publicity did not necessarily disqualify them provided that they could set aside anything that they had learned about the case from news reports or other outside sources and decide the case based only on the evidence presented in court. (9/13/89 Tr. 2250-2251, 2346-2347, 2351-2352) Only those jurors who had "any quarrel" with or any "question . . . about these propositions of law" were to approach the bench for more specific individual questioning. (9/13/89 Tr. 2250-2251) Not surprisingly, very few jurors came forward.
On the last day of jury selection, the defense filed a motion to permit additional and individualized voir dire on exposure to publicity. [A. IV. 271-280] The court denied the motion "because the juror questionnaire and careful individual voir dire allowed by the Court during the voir dire process satisfied every requirement for a fair trial and impartial jury." [A. IV. 281]
In defending the voir dire procedures, the government claims that "[t]his is not a case where a judge failed altogether to inquire about the effect of significant pretrial publicity," and cites two cases from other circuits as examples of such an omission. Gov. Br. 88-89. See United States v. Abello-Silva, 948 F.2d 1168, 1178 (10th Cir. 1991) (voir dire adequate in case where pretrial publicity was not overwhelming and trial court asked most of questions proposed by defense in determining whether jurors had formed opinions based on pretrial publicity), cert. denied, 113 S. Ct. 107 (1992); United States v. Chambers, 944 F.2d 1253, 1262 (6th Cir. 1991) (voir dire adequate where trial court "went to great lengths to ensure that the empaneled jurors were not influenced by any pretrial publicity" and defense did not exercise all peremptory challenges), cert. denied, 112 S. Ct. 1217 (1992). These cases are clearly distinguishable on their facts since the trial judges there did inquire about publicity exposure.
Moreover, this Court has clearly articulated the voir dire procedures to be followed in cases involving extensive publicity. Although the government acknowledges these decisions (Gov. Br. 94-97), for good reason, it fails to compare the voir dire examinations conducted in those cases with the one conducted here. The fundamental distinctions are revelational.
For example, in United States v. Haldeman, 559 F.2d at 65-66, the trial court individually questioned 77 of the remaining 85 jurors on various matters including exposure to pretrial publicity. During the individual voir dire examinations, the judge first asked if any member of the venire believed that any of the defendants were probably guilty. Id. at 65. The court then determined the juror's degree of interest in and exposure to the case by asking whether s/he had heard, read, or seen on television anything about the case and if so, whether s/he remembered anything in particular about it. Id. at 65-66. Next, the court determined which newspapers, magazines, and television programs the juror regularly read or viewed, how closely s/he had followed Watergate, and whether (and how recently), s/he had discussed the case. Id. at 66. If any prospective juror had formed an opinion of any defendant's guilt or innocence, the judge attempted to determine whether that opinion was firmly held or could be set aside. Id. Finally, the court asked whether the juror could return a fair and impartial verdict based solely on the evidence at trial. After this "basic questioning" was completed, the judge considered counsel's objections and suggestions for additional inquiries, which often resulted in recall for more questioning. Id.
In rejecting the Haldeman defendants' argument that the voir dire examination was inadequate, this Court held that the judge's questions to prospective jurors were sufficient to provide an objective basis for evaluating each juror's impartiality. Id. at 66, 67. However, in arriving at this conclusion, the Court noted "that it would have been reversible error for the [trial] court to accept jurors simply because they said they would be fair." Id. at 67 n.51 (additional citations omitted).
In the instant case, the trial court failed to obtain any objective information relating to prospective jurors' exposure to prejudicial publicity. Thus, the trial judge violated the Haldeman precepts and, in doing so, committed reversible error. Compare United States v. Liddy, 509 F.2d 428, 436-437 (D.C. Cir. 1974) (voir dire upheld where individual examinations verified prior responses to en masse questioning which indicated that few prospective jurors had formed opinion regarding guilt or innocence based upon exposure to publicity), cert. denied, 420 U.S. 911 (1975), with United States v. Dellinger, 472 F.2d at 372 (convictions reversed where trial court asked whether any reason jurors could not render fair verdict but refused to ask any questions regarding exposure to extensive pretrial publicity) and United States v. Davis, 583 F.2d 190, 196-198 (5th Cir. 1978) (convictions reversed for inadequate voir dire where trial court admonished jury panel as group to decide case strictly from evidence in court and asked jurors to raise hands if publicity impaired their ability to render impartial).
D.The court abused its discretion in failing
to examine individually each prospective juror
who indicated exposure to prejudicial publicity.
Each of the trial court's errors relating to the inadequate jury questionnaires and voir dire examination combined to sabotage the defendants' collective right to a fair and impartial jury. For example, because the questionnaires did not directly address exposure to pretrial publicity, the questionnaires did not reveal many of the prospective jurors who most likely were exposed to and influenced by the intensive media coverage of the case. Similarly, the court's perfunctory voir dire examination of the various juror panels, during which there was a complete absence of any direct questions regarding exposure to publicity, again failed to identify those jurors who had learned about the case through the media. Finally, the judge's practice of first admonishing the prospective jurors that it was their duty to decide the case based only on the evidence presented in court and then asking them if they could set aside any prejudicial publicity to which they had been exposed -- without ever obtaining any objective information relating to their sources of information, the extent of their exposure, and whether they had formed an opinion as to guilt or innocence -- resulted in very limited individual questioning. The cumulative effect of these factors destroyed any possibility that the jurors who had some previous exposure to the case would be identified and individually questioned.
The government argues that the trial judge did not err in failing to examine individually those jurors who admitted exposure to pretrial publicity. Gov. Br. 89-96. Although individual voir dire is not always mandatory, the ABA Standards § 3.4(a) (1968) do require individual interrogation if the trial court determines that there is a "significant possibility" that individual jurors will be ineligible to serve because of exposure to the publicity. The prosecution relies upon this standard to argue that under the circumstances of this case, the trial judge did not abuse his discretion in determining that there was no significant possibility of prejudice. Gov. Br. 96-97. This argument is fundamentally flawed in two respects.
First, the government asserts, without any citation of authority, that where "the publicity was not unusually inflammatory and did not monopolize the local media, it is not an abuse of discretion for a district court to find no threshold need for individual questioning." Gov. Br. 96. That publicity surrounding this case was "unusually inflammatory" cannot seriously be questioned. Moreover, it is clear that the plain meaning of the term "significant possibility" supports the conclusion that individual voir dire is required where the publicity "could well have had a prejudicial impact on the persons summoned for jury service." United States v. Dellinger, 472 F.2d at 374. Given the intensity of the media coverage immediately preceding and subsequent to the commencement of jury selection, this case certainly meets that standard.
Second, the government's contentions fail to address the fact that the trial court was in no position to exercise its discretion because it failed to inquire into the sources and extent of the publicity exposure. Consequently, the court failed to comply with other provisions of the ABA Standards, requiring that "[t]he questioning shall be conducted for the purpose of determining what the prospective juror has read and heard about the case and how any exposure has affected that person's attitude toward the trial" (Standard 8-3.5(a) (1980)), and that "[b]oth the degree of exposure and the prospective juror's testimony as to state of mind are relevant to the determination of acceptability." Standard 8-3.5(b) (1980). Under these standards, the voir dire questioning was inadequate because "[t]he trial court made no effort to ascertain what information the jurors had accumulated and, consequently, had no way of objectively assessing the impact caused by this pretrial knowledge on the juror's impartiality." United States v. Silverthorne, 400 F.2d at 638 (emphasis in original) (holding inadequate voir dire relating to pretrial publicity that was addressed to veniremen as group and permitted no individual questioning).
The voir dire examination in this case did not follow the ABA Standards approved in Bryant or this Court's consistent decisions regarding the extent of voir dire mandated in this circuit in high publicity cases. Therefore, without deciding whether the voir dire in this case complied with constitutional requirements, this Court can exercise its supervisory powers in holding that the district court abused its discretion. Cf. Mu'Min v. Virginia, 500 U.S. 415, 430 (1991) (ABA voir dire standards stricter than constitutional requirements).
Although the government concedes that "individual voir dire would have been useful to determine whether any jurors harbored prejudice despite their claims to the contrary" (Gov. Br. 91), the prosecution maintains that the Constitution generally does not require individual voir dire, citing to the Supreme Court's decision in Mu'Min. Gov. Br. 91. However, the government's reliance on Mu'Min is misplaced for several reasons. First, the only issue addressed by the Mu'Min Court was whether the Constitution requires that prospective jurors in state cases be questioned regarding the specific content of pretrial publicity, not whether any inquiry into publicity exposure was required.
Second, the facts in Mu'Min are clearly distinguishable because, as the government concedes, the trial judge there conducted some individual questioning of jurors who admitted exposure to publicity. Gov. Br. 91-92. In fact, the court in Mu'Min not only asked the prospective jurors whether they had read or heard something about the case, but also asked whether they had formed an opinion and, finally, whether they could nonetheless be fair and impartial. Id. at 422. In contrast, the trial judge in the instant case refused to ask during the general voir dire any questions regarding publicity exposure. This distinction, which the government ignores, is critical.
Finally, the 5-4 majority in Mu'Min repeatedly emphasized that the Court was reviewing a state, rather than a federal, conviction. Id. at 422-424. The Court explained that while it had supervisory powers over the voir dire requirements of cases tried in federal courts, its authority over those same requirements in state court trials was limited to enforcing constitutional requirements. Id. at 422. Thus, the Court enjoyed "more latitude in setting standards for voir dire in federal courts under its [supervisory] power than it [had] in interpreting the provisions of the Fourteenth Amendment with respect to voir dire in state courts." Id.
As pointed out in the dissent, nothing in the majority's opinion could be interpreted as overturning the decisions of various federal appellate courts that, in the exercise of their supervisory powers, have mandated content questioning as part of the voir dire in pretrial publicity cases. Id. at 447 n.6 (Marshall, J., dissenting). Similarly, nothing in the Mu'Min opinion can be read as overturning decisions by lower federal courts requiring individual voir dire regarding exposure to prejudicial publicity. See Bryant, 471 F.2d at 1045 (individual interrogation required once it becomes known that juror previously exposed to case); Silverthorne, 400 F.2d at 639-640 (court's voir dire examination should have been directed to individual jurors where some of pretrial publicity was prejudicial in nature). Given the extraordinarily prejudicial publicity in the instant case, the court's failure to examine each of the prospective jurors who had been exposed to the publicity renders the court's voir dire procedure constitutionally inadequate to uncover potential juror bias.
E.The trial judge abused his discretion by failing to
require jurors to answer verbally questions as to their
impartiality and by then assessing their credibility
without observing their demeanor.
The government argues that because so few prospective jurors admitted prejudice, the panel members' general assurances of impartiality were not suspect. Gov. Br. 96. In reaching this erroneous conclusion, the prosecution apparently fails to recognize that the low number of jurors who admitted prejudice is directly attributable to the trial judge's inadequate and coercive voir dire procedures. Contrary to the government's claim (Gov. Br. 96), the court did accept the jurors' determinations of their own impartiality without any objective information regarding their exposure to publicity and without observing their demeanor. Compare Haldeman, 559 F.2d at 67 n.51 (trial court properly relied on objective and subjective indicators of bias and had ample opportunity to observe demeanor and assess candor during individual questioning).
The court's voir dire examination was defective because the jurors were required only to remain silent in order to indicate their impartiality. This deprived the trial judge of the "opportunity to assess the demeanor of each prospective juror in disclaiming bias." Mu'Min, 500 U.S. at 451 (Kennedy, J., dissenting) (internal quotations omitted). According to Justice Kennedy, this opportunity to assess a juror's credibility is the critical factor in the reasoning underlying the special deference afforded to voir dire decisions of the trial judge. Id. See also Rosales-Lopez v. United States, 451 U.S. 182, 188 (1981) (stressing role of trial judge in evaluating demeanor of potential jurors when professing their impartiality).
In the instant case, the trial judge did not require the jurors to respond verbally to his admonitions regarding their duty to decide the case based only upon the evidence presented in court. Rather, they were permitted to remain silent and the judge interpreted their silence as an indication of impartiality. As the Supreme Court has recognized, a prospective juror might want to conceal his or her bias for various reasons. See Smith v. Phillips, 455 U.S. 209, 221-222 (1982) (O'Connor, J., concurring) ("[a] juror may have an interest in concealing his own bias . . . [or] may be unaware of it.")
In light of the trial judge's references to the jurors' duties as "good citizens of the community," it is particularly true here that "[n]atural human pride would suggest a negative answer to whether there was a reason the juror could not be fair and impartial." United States v. Dellinger, 472 F.2d at 375. Moreover, it is possible that potential jurors might not be aware of their own latent prejudices. Mu'Min, 500 U.S. at 440 (Marshall, J., dissenting). Because the trial judge's inadequate voir dire provided no objective information about the jurors' exposure to publicity and no opportunity to assess their demeanor, all that was left to evaluate was their silence. Finding impartiality on this assessment alone was a clear abuse of the court's discretion.
F.The court's restrictive voir dire examination regarding
the jurors' exposure to publicity and its impact on them
failed to provide a sufficient basis for defendants'
cause and peremptory challenges.
As the result of the trial court's wholly inadequate voir dire, the defendants were deprived of their right to exercise their cause and peremptory challenges effectively. "To be meaningful, the adequacy of voir dire examination must permit the defendant an opportunity to make reasonably intelligent use of his peremptory challenges and challenges for cause." Knox v. Collins, 928 F.2d 657, 661 (5th Cir. 1991) (internal quotations omitted) (quoting United States v. Rucker, 557 F.2d 1046, 1049 (4th Cir. 1977)), cert. denied, 114 S. Ct. 732 (1994). Accord United States v. Sababu, 891 F.2d 1308, 1325 (7th Cir. 1989); United States v. Hill, 738 F.2d 152, 155 (6th Cir. 1984). This is particularly true where the court empanels an anonymous and sequestered jury. See United States v. Crockett, 979 F.2d at 1216; United States v. Eufrasio, 935 F.2d at 574; United States v. Paccione, 949 F.2d at 1192.
Because the trial judge refused to permit the defense to inquire about publicity and whether such exposure caused them to form an opinion as to the defendants' guilt or innocence, the trial court failed to determine the question of actual bias as a basis for a challenge for cause. See Dennis v. United States, 339 U.S. 162, 168 (1950) (trial court has serious duty to determine actual bias); United States v. Wood, 299 U.S. 123, 133 (1936) (all jurors are subject to examination as to actual bias). Thus, the defendants were denied their right to challenge for cause jurors who were so prejudiced by the inflammatory publicity that they could not be fair and impartial.
Similarly, the trial judge denied the defendants their right to the effective exercise of their peremptory challenges, as provided in Fed. R. Crim. P. 24(b). Although the right to strike jurors without cause is not required by the Constitution, it is "one of the most important of the rights secured to the accused," and "[t]he denial or impairment of the right is reversible error without a showing of prejudice." Swain v. Alabama, 380 U.S. 202, 219 (1965). Because only 2 of the 12 jurors who ultimately deliberated were individually questioned during the voir dire examination, the defense, which exhausted all twenty-two of its peremptory challenges, was unable to exercise its peremptories intelligently to strike any of the other jurors who were ultimately selected. Had the defendants been permitted sufficient inquiry into the jurors' knowledge about the case and their attitudes, including those four who admitted exposure to publicity, the defense would have been better able to exercise intelligently the peremptory challenges allotted to them. Thus, the impairment of the defendants' right of peremptory challenge resulting from the inadequate voir dire requires reversal of their convictions. See Lyons v. United States, 645 A.2d 574, 579-580 (D.C. 1994) (interference with defendant's exercise of peremptory challenges not harmless error because structural defect rather than trial error).
G.The court's combined errors in conducting the voir
dire examination require reversal of defendants'
While the conduct of a voir dire examination is a matter within the broad discretion of the trial judge, the exercise of discretion is limited by "the essential demands of fairness." Aldridge v. United States, 283 U.S. 308, 310 (1931). Under the totality of the exceptional circumstances in this case, the perfunctory voir dire regarding prospective jurors' exposure to highly prejudicial publicity undermined the defendants' Sixth Amendment guarantee to trial by an impartial jury. In Haldeman, the leading authority in this circuit on the requirements of voir dire in cases involving extensive pretrial publicity, this Court, despite characterizing the evidence of the defendants' guilt as "overwhelming," noted that it would have been reversible error for the district court to have accepted jurors based solely on their own assessment of their impartiality. 559 F.2d at 67 n.51, 71. In the instant case, the combined effect of the trial judge's numerous errors in conducting the voir dire examination resulted in findings of juror impartiality based on nothing more than the mere silence of the individual panel members in response to loaded questions asked en masse. Under Haldeman and its progeny, this constitutes reversible error.
Moreover, the Supreme Court has noted that where a jury has been exposed to prejudicial publicity, the conviction must be reversed "because the effect of the violation cannot be ascertained." Vasquez v. Hillery, 474 U.S. 254, 263-264 (1986) citing Sheppard v. Maxwell, 384 U.S. 333, 351-352 (1966). Thus, the fundamental flaws in the voir dire examination in this case are not amenable to harmless error review.
Even if this Court concludes that the voir dire procedures employed by the trial judge satisfied the requirements of the Sixth Amendment, it still should find that the voir dire examination did not comply with the strict standards established by this Court and reverse the convictions in the exercise of its supervisory powers. Although the government is correct in noting that the harmless error rule generally is applicable to an appellate court's exercise of supervisory powers, Gov. Br. 97, because the district court's errors in conducting an inadequate voir dire examination in violation of circuit standards should be deemed "fundamental," they fall within an exception to the harmless error rule. See Bank of Nova Scotia v. United States, 487 U.S. 250, 257 (1988) (recognizing exception to harmless error rule, permitting dismissal of indictment in cases where error deemed "fundamental").
Alternatively, because the voir dire examination had the effect of impairing the defendants' ability to exercise intelligently their challenges for cause or peremptory, their convictions should be reversed, irrespective of prejudice. Swain v. Alabama, 380 U.S. at 219. Given the extensive prejudicial publicity about this case, a thorough and probing questioning regarding exposure to that publicity was vital to a fair exercise of defendants' challenges. Accordingly, the district court's refusal to conduct such an examination constitutes reversible error. See United States v. Evans, 917 F.2d 800, 805-807 (4th Cir. 1990) (failure to inquire on voir dire as to possible prejudice in favor of police testimony not harmless error where voir dire was perfunctory and question was essential to intelligent exercise of peremptory challenges).
"Given the pervasiveness of modern communications and the difficulty of effacing prejudicial publicity from the minds of the jurors, the trial courts must take strong measures to ensure that the balance is never weighed against the accused." Sheppard v. Maxwell, 384 U.S. at 362. By conducting a perfunctory voir dire that failed to address adequately the crucial issue of exposure to publicity and permitted individual jurors to attest to their own impartiality by saying nothing at all, the district court failed to take the requisite "strong measures" to protect the defendants' fundamental right to a fair trial by an impartial jury.
In our criminal justice system, "only the jury may strip a man of his liberty or his life." Irvin v. Dowd, 366 U.S. 717, 722 (1961). At least 4, and perhaps more, of the jurors who voted to convict the defendants in this case may well have been biased against them because of exposure to prejudicial publicity. However, none of the 4 jurors was individually questioned and only 2 of the 12 deliberating jurors were separately examined. In essence, those jurors were seated based solely upon their silent assertions of impartiality. Consequently, the verdicts in this case were rendered by truly "anonymous" jurors, whose identities, biases, and prejudices were unknown to the very persons whose fate they were deciding. This Court cannot allow such a jury to "strip" the defendants -- who are serving extremely lengthy sentences of incarceration up to life without parole -- of their "liberty" or their "li[v]e[s]." These convictions should not be permitted to stand.
III.THE COURT'S PREJUDICIAL CONDUCT DEPRIVED
DEFENDANTS OF A FAIR TRIAL
In their opening brief, the defendants argued that the numerous incidents of hostility and antagonism between the district court and defense counsel created the kind of prejudicial atmosphere in the courtroom that made a fair trial impossible. See Def. Br. 46-68. In response, the government blames defense counsel for these events, claims that the incidents were isolated, and defends the trial judge's actions as "proper management of a difficult case." Gov. Br. 99. Thus, the prosecution maintains, "[a]ppellants confuse bias with control." Gov. Br. 99.
However, the trial record reflects that the court's "control" of the proceedings transmogrified into continual censure of defense counsel. Critical comments and castigations of defense counsel by the court were frequent, occurring on the average of at least every other trial day. To be sure, the conduct of the attorneys, both defense and prosecution, were less than perfect. However, even if counsel occasionally erred, "it was incumbent on the judge to conduct himself impartially and without the obvious indication of continual agitation and hostility toward counsel for either side." United States v. Cassiagnol, 420 F.2d 868, 879 (4th Cir.), cert. denied, 397 U.S. 1044 (1970).
Although some of the acrimonious exchanges between the judge and defense took place at the bench, a number of others occurred in front of the jury. The court's remarks in the jury's presence disparaged defense counsel and made it appear to the jury that the judge sided with the prosecution against the defense. (See Def. Br. 54-58 for cited examples). To make matters worse, on three separate occasions while in front of the jury, the judge threatened defense counsel with sanctions for conduct that, if improper at all, did not come close to being contumacious. (See Def. Br. 56-57 for cited examples). As a result of the district court's frequent agitation and hostility toward the defense attorneys, the judge's appearance of detached impartiality was destroyed and the defendants were prevented from having a trial free of the appearance of unfairness.
B. The district judge's actions were not
justified by the difficult trial conditions.
If the parties to this appeal agree on little else, they
concur that this was a long and arduous trial. See Def. Br. 49; Gov. Br. 102. Given the seriousness of the charges and the inflammatory publicity surrounding this prosecution, it is not surprising that emotions ran high among all of the participants but especially between the district court and the defense attorneys. The government argues that the difficult trial conditions justified the court's conduct. Gov. Br. 102-104. However, "grave errors which result in serious prejudice to a defendant cannot be ignored simply because they grew out of difficult conditions." United States v. Nazzaro, 472 F.2d 302, 304 (2d Cir. 1973).
The record in this case indicates that the trial judge became personally embroiled with defense counsel, particularly with William Murphy, who was lead counsel for defendant xxxxxxx. The proceedings were punctuated by sharp exchanges between the court and Murphy. See Def. Br. 55-57. In responding harshly to what he must have perceived as provocation by the defense, the judge lost his composure and failed to maintain equanimity before the jury. Thus, "[h]is behavior precluded that atmosphere of austerity which should especially dominate a criminal trial and which is indispensable for an appropriate sense of responsibility on the part of court, counsel and jury." Offutt v. United States, 348 U.S. 11, 17 (1954). See also ABA Standards for Criminal Justice, Special Functions of the Trial Judge, Standard 6-3.4 (2d ed. 1986 Supp.) ("when it becomes necessary during the trial for the judge to comment upon the conduct of . . . counsel, or others, . . . the judge should do so in a firm, dignified, and restrained manner, avoiding repartee, limiting comments and rulings to what is reasonably required for the orderly progress of the trial, and refraining from unnecessary disparagement of persons or issues").
The government contends that because of the strength of the prosecution's case, the defense apparently adopted an obstructionist strategy bent on provoking a mistrial or creating reversible error. Gov. Br. 103. In addition to being mere speculation, this assertion is not supported by the record. Defense counsel generally were respectful and took reasonable positions in their roles as zealous advocates for their clients. See United States v. Wade, 388 U.S. 218, 256-258 (1967) (White, J., concurring and dissenting) (unlike prosecutor, defense counsel has no comparable obligation to ascertain or present the truth; adversary system assigns defense lawyer "a different mission" -- to defend client whether innocent or guilty); ABA Standards for Criminal Justice, The Function of Defense Counsel, Standard 4-1.2 (3d ed. 1993) (in protecting defendant's rights, defense counsel may resist judge's wishes on some matters but, in so doing, is "fulfilling a necessary and important function within the adversary system").
It is true that defense counsel periodically argued with the court, challenged its rulings, and sought ways to maneuver around or within its orders. However, this is part of a criminal defense attorney's function in our adversary system. See Def. Br. 63-64. It does not follow that because defense counsel at times appeared to be unyielding and uncooperative, they necessarily intended to impede or abort the trial proceedings. Given the need for vigorous advocacy in defending against an aggressive prosecution such as the one in this case, the government's claim of intentional obstructionism by the defense as a partial justification for the judge's actions in asserting control over a difficult trial is spurious.
C.The judge's trial conduct prejudiced the defendants.
The government maintains that the record, as a whole, shows a "generally composed and objective" judge whose "manner was typically polite and dignified." Gov. Br. 106. In support of this contention, the government cites examples of the court's "tolerance" and "careful attention to the parties' positions." Gov. Br. 106. However, when placed in their proper context, the selected excerpts prove a much different but even more poignant point -- that the judge's behavior was erratic throughout the trial, ranging from objectivity and conscientiousness one moment to intolerance and hostility the next.
For example, although the court was attentive and courteous to counsel during the portion of one of the particular proceedings cited by the government (9/19/89 Tr. 5-44), only a few pages later in the same transcript, the judge became irritated with defense counsel and stated that whatever it did would be "unsatisfactory" to them. (9/19/89 Tr. 52) Later that same day, the court remarked that one defense counsel objected whenever the court "sneeze[d]" and that another failed to appreciate that the judge was working harder than all of the lawyers combined. (9/19/89 Tr. 101, 182) Similarly, a few days later, the proceedings started off well, (9/25/89 Tr. 6-11) but later deteriorated into a heated exchange, part of which occurred in front of the jury, in which Murphy claimed that the judge was hollering at him during his cross-examination of a government witness and the court threatened to hold him in contempt. (9/25/89 Tr. 175-181)
The trial judge's frequent shifts in temperament and actions made it almost impossible for defense counsel to predict the court's responses to their objections and legal arguments. For example, even when the judge extended some leeway to defense counsel in cross-examining government witnesses, the court, sua sponte, often simultaneously instructed the jury that counsel's questions were not to be considered as evidence. (e.g., 10/12/89 Tr. 262-263, 266-268) Rather than demonstrating strict management of the trial as the government contends, the judge's erratic conduct created a chaotic atmosphere in which the already difficult and complex role of defense counsel became even more enigmatic. Although the government correctly points out that defense counsel occasionally remarked on the court's "good humor" (Gov. Br. 107), these isolated comments clearly were intended to placate the judge in an effort not to darken the court's "mood." (e.g., 10/16/89 Tr. 60; 10/18/89 Tr. 80; 11/8/89 Tr. 70) Regrettably, these attempts to mollify the judge proved to be futile.
(1)The court's severe criticism of defense counsel,
threats of sanctions, and contempt findings
outside the jury's presence were unwarranted
Contrary to the government's assertion (Gov. Br. 112), the defendants recognize and acknowledge a trial judge's duty as the manager of the trial to rebuke counsel for improper behavior. The law is clear on this point. See United States v. Logan, 998 F.2d 1025, 1029 (D.C. Cir.), cert. denied, 114 S. Ct. 569 (1993); United States v. Jackson, 627 F.2d 1198, 1206 (D.C. Cir. 1980). However, a court's unprovoked criticism of defense counsel, even when done outside the presence of the jury, may be considered evidence of the judge's bias. See United States v. Young, 346 F.2d 793, 796 (D.C. Cir. 1965) (even if jury did not hear court's critical remarks at bench, "interests of public justice require a trial conducted by one who is a "`disinterested and objective participant in the proceeding.'" (quoting Billeci v. United States, 184 F.2d 394, 403 (D.C. Cir. 1950)).
In the instant case, the district court continuously rebuked defense counsel, threatened them with undefined sanctions, and held three of them in contempt, either at bench conferences or otherwise outside the jury's presence. See Def. Br. 61-63. Although the court occasionally criticized the prosecutors as well, the admonishments generally were much less severe and less frequent than those directed at defense counsel. See Def. Br. 52-53. Moreover, defense counsel came under attack for conduct that prosecutors undertook with impunity. For example, although the court was quick to rebuke defense counsel for making "speaking" objections (e.g., 9/21/89 Tr. 66-67; 9/26/89 Tr. 85-86;
10/3/89 p.m. Tr. 26-27), when the defense objected to the same conduct by one of the prosecutors, the judge overruled the objection and defended the prosecutor in front of the jury. (10/24/89 Tr. 164; see also Def. Br. 52)
The court's action in defending the prosecutor in open court conveyed a clear, if unintended, message of favoritism to the jury. As the Second Circuit observed in a case where the trial judge's annoyance was directed primarily but not exclusively at defense counsel, "[t]here may be a point, however, where hostility between the court and defense counsel alone creates the kind of embattled and prejudicial atmosphere in the courtroom that makes a fair trial impossible." United States v. Boatner, 478 F.2d 737, 740 (2d Cir.), cert. denied, 414 U.S. 848 (1973). Because of the juxtaposition of the court's unnecessarily harsh treatment of defense counsel, on the one hand, and the judge's much less critical and, at times even supportive, treatment of the prosecutors, on the other, that point was not only reached, but was surpassed in this case.
The government argues that because many of the acrimonious exchanges between the judge and defense counsel occurred at the bench rather than in open court, the jury could not have been adversely influenced by the court's criticism of counsel that occurred when the jurors were not present. Gov. Br. 114. In making this argument, the government fails to recognize that even if the jury could not hear all of the comments made at the bench, the jurors could observe the judge's angry demeanor and facial expressions. Because the judge also rebuked, demeaned, and threatened defense counsel in the jury's presence, the jurors' observations of animated bench conferences could have only underscored the court's frequent displeasure with the defense.
Moreover, hostilities occurring even outside the jury's presence reflect the rancorous atmosphere that pervaded the courtroom during this trial. See United States v. Nazzaro, 472 F.2d at 311 n. 10 (acrimonious exchanges out of jury's hearing between court and defense counsel indicated hostile courtroom setting). Finally, even if the court's criticism of defense counsel at bench conferences or otherwise outside the jury's presence did not directly prejudice the jury, such remarks destroyed the judge's requisite appearance of impartiality. Cf. United States v. Young, 346 F.2d at 396 (even if the jury did not hear court's remarks, interests of justice require trial be conducted by disinterested judge).
The government's claim that the court's threats to impose sanctions against defense counsel and its contempt findings against three defense attorneys were "provoked" by the defense, Gov. Br. 111-112, is not supported by the record. Each of the examples cited by the prosecution demonstrates that the threats to impose sanctions were unduly harsh reactions to defense advocacy that was not disrespectful. (E.g., 9/22/89 Tr. 159-161 (defense counsel's request that court reconsider its overruling of two previous objections on identical grounds "borders on contempt"); 9/26/89 Tr. 86 (sanctions threatened when defense counsel questions in jury's presence propriety of in-court photo identification procedure); 9/26/89 Tr. 100-101 (sanctions threatened against "next lawyer that pops up" when defense counsel attempted to preclude witness from reviewing photographs after failure to make in-court identification of certain defendants); 10/3/89 Tr. 26-27 (sanctions threatened when defense counsel asks in jury's presence to see photographs to determine whether they are cumulative); 10/25/89 Tr. 129 (sanctions threatened when defense counsel asked questions on "same subject matter" as previous questions to which court sustained objections); 10/26/89 Tr. 174-175 (same)). Because the defense lawyers in these instances were not acting improperly in fulfilling their roles as vigorous advocates for their clients, the judge's threats were not justified.
Similarly, the government's contention that the three contempt findings were warranted is unfounded. Gov. Br. 113. Although a court may punish as contempt attorney misbehavior that obstructs the administration of justice under 18 U.S.C. § 401(1) or constitutes a wilful violation of a court order under § 401(3), this Court has observed that the "least possible power adequate to the end proposed should be used in contempt cases." In re Levine, 27 F.3d 594, 595 (D.C. Cir. 1994) (internal quotations omitted) (citing In re Holloway, 995 F.2d 1080, 1087 (D.C. Cir. 1993), cert. denied, 114 S. Ct. 1537 (1994)). In the instant case, the trial judge failed to exercise the necessary restraint and found to be contemptuous acts that neither obstructed justice nor violated the court's orders.
The circumstances surrounding Mr. Murphy's contempt citation best illustrate this point.The court held Murphy in contempt after he tried unsuccessfully to preclude a prosecution witness from giving a hearsay response during the witness's direct examination. (10/27/89 p.m. Tr. 103-106) After Murphy's objection to the question was overruled, he asked to approach the bench, proffering that it was "important," in compliance with the court's stated trial procedures. When the court denied the request, Murphy objected again and cited a case in support of his objection. When the witness began to answer the question, it became clear that his response was based upon hearsay. (10/27/89 p.m. Tr. 104 ("I was advised . . . "))
Before the witness could complete his hearsay answer, Murphy and two other defense lawyers simultaneously objected but the court overruled their objections. Having been denied access to the bench, Murphy stated in the presence of the jury the basis for his objection. The judge then told him that his objection had been overruled and admonished him not to "interrupt any further." (10/27/89 p.m. Tr. 104) When the prosecutor repeated the question (which asked for the names of persons who were being surveilled at a particular time and place), the witness answered that he "was given the name xxxxxxx xxxxxxx." (10/27/89 p.m. Tr. 104) When Murphy immediately moved to strike the hearsay answer, the court ordered him to approach the bench and held him in contempt for "disrupting the[ ] proceedings." (10/27/89 p.m. Tr. 104-105)
Unlike the attorneys in Levine and Holloway, Murphy, by moving to strike an answer that clearly was hearsay, did not disregard or disobey an order of the court. Therefore, his conduct did not constitute "[d]isobedience or resistance to [the court's]
lawful . . . order" under § 401(3). Compare Levine, 27 F.3d at 595-597 (§ 401(3) contempt upheld where lawyer repeatedly failed to obey court's orders regarding admissibility of evidence) and Holloway, 995 F.2d at 1086-1087 (§ 401(3) contempt upheld where lawyer wilfully disobeyed judge's orders as to permissible scope of cross-examination). Moreover, Murphy's efforts in pressing a valid objection to improper hearsay evidence did not cause an obstruction of the judicial process sufficient to constitute contempt under
§ 401(1). See In re Brown, 454 F.2d 999, 1005 (D.C. Cir. 1971) (the test under § 401(1) is "actual, not theoretical obstruction"). Therefore, contrary to the government's argument, Murphy's contempt citation was inappropriate and unwarranted.
The trial judge's actions outside the presence of the jury manifested his antagonism toward the defense and the combative air that permeated this trial. The combined effect of the judge's conduct both in and out of the jury's presence was devastating to the defense.
(2)The court's hostile interaction with
defense counsel in front of the jury
adversely influenced the verdict.
While acknowledging that a judge's powerful influence over a jury may cause jurors to place undue weight on the court's comments, the government nevertheless attempts to minimize and explain away the numerous instances of the trial judge's verbal and nonverbal misconduct in the jury's presence. Gov. Br. 115-123. However, because of the high regard in which juries hold presiding judges, even seemingly innocuous comments by the court are not insignificant. Moreover, when the vast majority of the court's critical remarks are directed at only one side and are accompanied by a hostile tone and angry facial expressions, the comments themselves merge with the subliminal message conveyed to the jury by the judge's nonverbal conduct. Therefore, the incidents of verbal and nonverbal misconduct must be viewed as a whole.
The government contends that the judge's critical remarks and threats to impose sanctions on defense counsel in front of the jury were insignificant, isolated, and if improper, nonprejudicial. Gov. Br. 116-119. Rather than being unimportant, the challenged conduct by the court discredited in the eyes of the jury defense counsel and, by implication, the defense. See Def. Br. 54-58. While the government defends some of the judge's remarks as reflecting the court's concern for "proper courtroom behavior," Gov. Br. 117, the comments were unnecessary, disparaging, and improper for the jury to hear. See Def. Br. 55-56; United States v. Hickman, 592 F.2d 931, 933 (6th Cir. 1979) (outright bias or belittling of counsel ordinarily reversible error); Salley v. United States, 353 F.2d 897, 899 (D.C. Cir. 1965) (court's comments to defense counsel in and out of jury's presence unduly interfered with trial and constituted independent ground for reversal of conviction).
Two of the court's remarks deserve special mention because they not only criticized defense counsel but also aligned the judge with the prosecution. (10/24/89 Tr. 164 (when defense attorney objected to prosecutor's speaking objection, court commented that she was doing same thing defense attorney had been doing throughout trial); 11/3/89 Tr. 162 (court commented that "we" want defense attorney to ask questions "properly")) This appearance of partiality distinguishes these comments from those involved in the government's supporting citations on this point. See Gov. Br. 117-118. The combined effect of all of the judge's comments was to cast an unfavorable light on the defense, thereby creating "an impression of [judicial] partisanship before the jury." United States v. Pellegrino, 470 F.2d 1205, 1207 (2d Cir. 1972), cert. denied, 93 S. Ct. 1556 (1973).
In addition to criticizing defense counsel, the court also threatened them with sanctions in the presence of the jury. See Def. Br. 56-57. Because the threatened sanctions were undefined, the government argues that the jury probably did not understand that the lawyers were being threatened with contempt. Gov. Br.
118. Assuming that is true, the judge's threats to impose any sanction on defense counsel suggest to the jury that the attorneys were acting so improperly that they deserved punishment. When combined with the judge's critical remarks, the threats must have caused the jury to doubt defense counsel's competence and, in turn, the credibility of the defense itself.
While noting that it was proper for defense counsel to make a record of the court's demeanor during the trial, the government disputes the accuracy of the attorneys' characterizations of the trial judge's demeanor. Gov. Br. 119-120; Def. Br. 58-61. It is difficult, to say the least, to resolve this conflict through a review of the cold record alone. However, several points are noteworthy. First, because the judge and the prosecutor only denied some of defense counsel's claims regarding the court's demeanor, it can be inferred that the uncontested claims were valid. In fact, on one occasion the judge acknowledged that he had displayed "open hostility" toward defense counsel in response to the lawyer's perceived impropriety. (11/20/89 Tr. 39-40)
Second, that the judge's demeanor was angry and hostile at times is inferable from the substance of his critical comments, rebukes, and threats to impose sanctions against defense counsel. See United States v. Hickman, 592 F.2d at 936 (judge's anti-defendant demeanor inferable from court's remarks and other actions). Finally, although the judge clearly had the right to dispute the lawyers' representations regarding his demeanor, the court's frequent criticism of counsel's efforts to make a proper appellate record on this and other issues speaks for itself. See Def. Br. 60-61; Billeci v. United States, 184 F.2d at 402 (counsel has "duty" to make simultaneous record of trial judge's "detrimental" demeanor).
Cumulatively, the court's comments, threats, and nonverbal actions transmitted to the jury the judge's disdain for the defense. See Egan v. United States, 287 F. 958, 971 (D.C. Cir. 1923) (considered as a whole, trial judge's conduct deprived defendant of fair trial). Clashes between the court and counsel in the jury's presence occurred about one out of every four trial days. Given the length of this trial, the number of skirmishes clearly conveyed the judge's continual agitation with the defense. Even if some of the court's angry remarks were prompted by counsel's failure to strictly comply with its rulings or trial procedures, the rebukes should have been made outside the jury's presence to avoid the appearance of partiality. See United States v. Spears, 558 F.2d 1296, 1298 (7th Cir. 1977) (regardless of counsel's improper comment, judge's rebuke in jury's presence deprived defendant of fair trial); Peckham v. United States, 210 F.2d 693, 702-703 (D.C. Cir. 1953) (conviction reversed where court, though under provocation, displayed hostility to counsel in front of jury).
Citing this Court's decision in United States v. Logan, 998 F.2d at 1029, the government argues that the judge's conduct was not prejudicial because his actions were directed at defense counsel rather than at the defendants themselves. Gov. Br. 121-122. However, although the Logan court did discuss that issue, its decision rests more firmly on the fact that the jury never heard many of the hostile exchanges between the judge and counsel. Id. As described above, the instant case differs in that important respect.
D.The cumulative effect of the court's conduct
deprived defendants of a fair trial.
In its final point on this issue, the government contends that, viewed over all, especially in light of the "overwhelming" prosecution evidence, the judge's conduct did not prejudice the defense. Gov. Br. 123-124. Given that the government's case relied heavily on the testimony of accomplice witnesses whose credibility was suspect, the prosecution's evidence was hardly "overwhelming" as to all of the defendants and was marginal as to some of them. Moreover, this Court has reversed a conviction because of the prejudicial actions by the trial judge "notwithstanding the strong evidence against the defendant" in that case. Jackson v. United States, 329 F.2d 893, 894 (D.C. Cir. 1964). See also United States v. Spears, 558 F.2d at 1298 ("[n]o matter how compelling the evidence of guilt, there is a point at which unfairness in [a] trial requires reversal").
The cumulative effect of the trial judge's actions destroyed "the impartial, judicious, and, above all, responsible courtroom atmosphere in which guilt or innocence [must] be soberly and fairly tested." United States v. Brandt, 196 F.2d 653, 655 (2d Cir. 1952). Accordingly, the convictions in this case must be reversed and defendants granted a new trial in which the jury's determination of guilt or innocence will not be impeded by the continuous conflict between the court and defense counsel. Then, and only then, will these defendants receive the fair trial to which they are entitled.
For the foregoing reasons and those stated in our joint
opening brief, the defendants' convictions should be reversed and the case remanded for a new trial.
JENSEN E. BARBER, ESQ.
400 Seventh Street, NW #400
Washington, DC 20004
Counsel for Emanuel W. Sutton
JOSEPH R. CONTE, ESQ.
601 Pennsylvania Avenue, NW
Washington, DC 20004
Counsel for Jerry R. Millington
DANIEL E. ELLENBOGEN, ESQ.
717 D Street, NW #400
Washington, DC 20001
Counsel for xxxxxxx xxxxxxx, III
ELISE HALDANE, ESQ.
1900 L Street, NW #300
Washington, DC 20036
Counsel for James Antonio Jones
Federal Public Defender
NEIL H. JAFFEE, ESQ.
Assistant Federal Public Defender
625 Indiana Avenue, N.W. #550
Washington, D.C. 20004
Counsel for Keith E. Cooper
STEVEN R. KIERSH, ESQ.
601 Pennsylvania Avenue, NW #900
Washington, DC 20004
Counsel for Melvin D. Butler
LEONARD L. LONG, ESQ.
1828 11th Street, NW #100
Washington, DC 20007
Counsel for John Monford
LEROY NESBITT, ESQ.
1900 L Street, NW #300
Washington, DC 20036
Counsel for Tony Lewis
G. GODWIN OYEWOLE, ESQ.
601 Pennsylvania Avenue, NW #900
Washington, DC 20004
Counsel for Bernice H. McCraw
ROBERT E. SANDERS, ESQ.
7125 16th Street, NW
Washington, DC 20012
Counsel for Armaretta B. Perry
DAVID B. SMITH, ESQ.
526 King Street #213
Alexandria, VA 22314
Counsel for David W. McCraw
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on December ___, 1994, a copy of the foregoing Final Joint Reply Brief for Appellants was served, by hand-delivery, upon Elizabeth H. Danello, Assistant United States Attorney, 555 4th Street, N.W., 10th Floor, Washington, D.C. 20001.
NEIL H. JAFFEE
Assistant Federal Public Defender