|Murphy v. Florida
[ Marshall ]
[ Burger ]
[ Brennan ]
Murphy v. Florida
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
MR. JUSTICE BRENNAN, dissenting.
I dissent. Irvin v. Dowd, 366 U.S. 717 (1961), requires reversal of this conviction. As in that case, petitioner here was denied a fair trial. The risk that taint of widespread publicity regarding his criminal background, known to all members of the jury, infected the jury's deliberations is apparent, the trial court made no attempt to prevent discussion of the case or petitioner's previous criminal exploits among the prospective jurors, and one juror freely admitted that he was predisposed to convict petitioner.
During voir dire, petitioner's counsel had the following colloquy with that juror:
Q. Now, when you go into that jury room and you decide upon Murphy's guilt or innocence, you are going to take into account that fact that he is a convicted murderer; aren't you?
A. Not if we are listening to the case, I wouldn't.
Q. But you know about it?
A. How can you not know about it?
Q. Fine, thank you.
When you go into the jury room, the fact that he is a convicted murderer, that is going to influence your verdict; is it not?
A. We are not trying him for murder.
Q. The fact that he is a convicted murderer and jewel thief, that would influence your verdict? [p805]
A. I didn't know he was a convicted jewel thief.
Q. Oh, I see.
I am sorry I put words in your mouth.
Now, sir, after two or three weeks of being locked up in a downtown hotel, as the Court determines, and after hearing the State's case, and after hearing no case on behalf of Murphy, and hearing no testimony from Murphy saying, "I am innocent, Mr. [Juror]" -- when you go into the jury room, sir, all these facts are going to influence your verdict?
A. I imagine it would be.
Q. And in fact, you are saying if Murphy didn't testify, and if he doesn't offer evidence, "My experience of him is such that, right now, I would find him guilty."
A. I believe so.
I cannot agree with the Court that the obvious bias of this juror may be overlooked simply because the juror's response was occasioned by a "leading and hypothetical question," ante at 801. Indeed, the hypothetical became reality when petitioner chose not to take the stand and offered no evidence. Thus, petitioner was tried by a juror predisposed, because of his knowledge of petitioner's previous crimes, to find him guilty of this one.
Others who ultimately served as jurors revealed similar prejudice toward petitioner on voir dire. One juror conceded that it would be difficult, during deliberations, to put out of his mind that petitioner was a convicted criminal. He also admitted that he did not "hold a convicted felon in the same regard as another person who has never been convicted of a felony," and admitted further that he had termed petitioner a "menace."
A third juror testified that she knew from several [p806] sources that petitioner was a convicted murderer, [n1] and was aware that the community regarded petitioner as a criminal who "should be put away." She disclaimed having a fixed opinion about the result she would reach, but acknowledged that the fact that petitioner was a convicted criminal would probably influence her verdict:
Q. Now, if you go into that jury room and deliberate with your fellow jurors, in your deliberations, will you consider the fact that Murphy is a convicted murderer and jewel thief?
A. Well, he has been convicted of murder. So, I guess that is what I would --
Q. You would consider that, in your verdict, right?
Q. And that would influence your verdict; would it not?
A. If that is what you say, I guess it would.
Q. I am not concerned about what I say, because if I said it, they wouldn't print it. It would influence your verdict?
A. It probably would.
Q. When you go into that jury room, you cannot forget the fact that it is Murph the Surf; that he is a convicted murderer, and a jewel thief -- you can't put that out of your mind, no matter what they tell you; can you, ma'am? [p807]
A. Probably not.
Q. And it would influence your verdict; right?
Still another juror testified that the comments of venire members in discussing the case had made him "sick to [his] stomach." He testified that one venireman had said that petitioner was "thoroughly rotten," and that another had said: "Hang him, he's guilty." [n2]
Moreover, the Court ignores the crucial significance of the fact that at no time before or during this daily buildup of prejudice against Murphy did the trial judge instruct the prospective jurors not to discuss the case among themselves. Indeed, the trial judge took no steps to insulate the jurors from media coverage of the case or from the many news articles that discussed petitioner's last criminal exploits.
It is of no moment that several jurors ultimately testified that they would try to exclude from their deliberations their knowledge of petitioner's past misdeeds and of his community reputation. Irvin held in like circumstances that little weight could be attached to such self-serving protestations:
No doubt each juror was sincere when he said that he would be fair and impartial to petitioner, but the psychological impact requiring such a declaration before one's fellows is often its father. Where so many, so many times, admitted prejudice, such a statement of impartiality can be given little weight. As one of the jurors put it, "You can't forget what you hear and see."
366 U.S. at 728.
On the record of this voir dire, therefore, the conclusion is to me inescapable that the attitude of the entire venire toward Murphy reflected the "then current community pattern of thought as indicated by the popular news media," id. at 725, and was infected with the taint of the view that he was a "criminal" guilty of notorious offenses, including that for which he was on trial. It is a plain case, from a review of the entire voir dire, where
the extent and nature of the publicity has caused such a build up of prejudice that excluding the preconception of guilt from the deliberations would be too difficult for the jury to be honestly found impartial.
United States ex rel. Bloeth v. Denno, 313 F.2d 364, 372 (CA2 1963). In my view, the denial of a change of venue was therefore prejudicial error, and I would reverse the conviction.
1. The juror stated that she acquired a portion of her knowledge of petitioner's criminal background from an article in that week's Miami Herald entitled "Defense Exhausts Jury Challenges in Murphy Trial," which included the sentence:
Jury selection will continue today in the trial of beach boy hoodlum serving a life sentence for murder in connection with the Whisky Creek slaying of two secretaries in 1968.
2. A juror chosen as an alternate testified that she did not know whether she "would give the same fair and impartial treatment to a convicted killer as [she] would to another person." She added that she did not know whether she could be fair and impartial in her deliberations in the case:
Q. The question is, would you compromise your verdict; could you go there -- and say the State proved his guilt and the defense proved that he was insane, but, "I'm not going to let that guy walk the streets, so I'm going to find him guilty, period?"
Would you do that?
A. I don't know at this point.
So in fact, ma'am, at this point, you cannot tell us whether you can give a fair and impartial deliberation about Murphy, number one, because of the lack of evidence, and number two, because of what you know about Murphy; isn't that a fact?