DAWUD MAJID MU'MIN,
PETITIONER v. VIRGINIA
Marshall, with whom Justice Blackmun and
Justice Stevens join as to all but Part IV,
turns a critical constitutional guarantee — the
Sixth Amendment's right to an impartial jury — into
a hollow formality. Petitioner Dawud Majid Mu'Min's
capital murder trial was preceded by exceptionally
prejudicial publicity, and at jury selection 8 of
the 12 jurors who ultimately convicted Mu'Min of
murder and sentenced him to death admitted exposure
to this publicity. Nonetheless, the majority
concludes that the trial court was under no
obligation to ask what these individuals knew about
the case before seating them on the jury. Instead,
the majority holds that the trial court discharged
its obligation to ensure the jurors' impartiality by
merely asking the jurors whether they thought
they could be fair.
reasoning is unacceptable. When a prospective juror
has been exposed to prejudicial pretrial publicity,
a trial court cannot realistically assess the
juror's impartiality without first establishing what
the juror already has learned about the case. The
procedures employed in this case were wholly
insufficient to eliminate the risk that twothirds of
Mu'Min's jury entered the jury box predisposed
against him. I dissent.
concedes that the charges against Mu'Min "engendered
substantial publicity," ante, at 1, and that
"news reports about Mu'Min were not favorable,"
ante, at 13, but seeks to minimize the impact of
the pretrial publicity by arguing that it was not as
extensive as in other cases that have come before
this Court, ibid. The majority's observation
is completely beside the point. Regardless of how
widely disseminated news of the charges against
Mu'Min might have been, the simple fact of the
matter is that twothirds of the persons on
Mu'Min's jury admitted having read or heard about
the case. While the majority carefully avoids any
discussion of the specific nature of the pretrial
publicity, it is impossible to assess fairly
Mu'Min's claim without first examining precisely
what was written about the case prior to trial.
On September 22,
1988, Gladys Nopwasky was stabbed to death in the
retail carpet and flooring store she owned in Dale
City, Virginia. Several weeks later, Mu'Min, an
inmate serving a 48-year sentence for first-degree
murder, was indicted for murdering Nopwasky. Facts
developed at trial established that Mu'Min had
committed the murder after escaping from the site of
a Virginia Department of Transportation work detail.
See 239 Va. 433, 437-438, 389 S. E. 2d 886, 889-890
circumstances of the murder generated intense local
interest and political controversy. The press
focused on the gross negligence of the corrections
officials responsible for overseeing the work detail
from which Mu'Min had escaped. It was reported, for
instance, that the facility to which Mu'Min was
assigned had been enclosed by only a four-foot high
fence, with a single strand of barbed wire across
the top. See App. in No. 890899 (Va. Sup. Ct.), p.
963 (hereinafter App.). It was also reported that
the lax supervision at the facility allowed the
inmates to have ready access to alcohol, drugs, and
weapons and to slip away from the work detail for
extended periods without detection. Id., at
922, 939, 963-964. Shortly after the charges against
Mu'Min became public, the state official in charge
of administering both corrections and highway
programs issued a public apology. Id., at
927. Not satisfied, a number of area residents wrote
editorials demanding that all state officials
responsible for the inmate work-release program be
fired, id., at 930, 931, 937, 974, and area
leaders pushed for increased controls on inmate-release
programs, see id., at 933, 935, 936, 958.
Officials responded with the introduction of stiffer
restrictions on prison work crews, id., at
922, 938, and with the suspension of furloughs for
inmates convicted of violent crimes, id., at
970. In explaining the new policies, the director of
Virginia's Department of Corrections acknowledged
that the explosive public reaction to the charges
against Mu'Min had been intensified by the case of
Willie Horton, whose rape and assault of a Maryland
woman while on furlough became a major issue in the
1988 presidential campaign. " `The world's in an
uproar right now,' " the official was quoted as
great deal of the media coverage of this controversy
was devoted to Mu'Min and the details of his crime.
Most of the stories were carried on the front pages
of local papers, and almost all of them were
extremely prejudicial to Mu'Min. Readers of local
papers learned that Nopwasky had been discovered in
a pool of blood, with her clothes pulled off and
semen on her body. Id., at 925. In what was
described as a particularly "macabre" side of the
story, a local paper reported that, after raping and
murdering Nopwasky, Mu'Min returned to the work site
to share lunch with other members of the prison
detail. Id., at 963.
learned that Mu'Min had confessed to the crime.
Under the banner headlines, "Murderer confesses to
killing woman," id., at 975-976, and "Inmate
Said to Admit to Killing," id., at 925, the
press accompanied the news of Mu'Min's indictment
with the proud announcement of Virginia's Secretary
of Transportation and Public Safety that the State
had already secured Mu'Min's acknowledgment of
responsibility for the murder. See id., at
975, 981. Subsequent stories reported that, upon
being confronted with the charges, Mu'Min initially
offered the incredible claim that he had entered the
store only to help Nopwasky after witnessing another
man attempting to rape her. Id., at 932, 945.
However, according to these reports, Mu'Min
eventually abandoned this story and confessed to
having stabbed Nopwasky twice with a steel spike,
once in the neck and once in the chest, after having
gotten into a dispute with her over the price of
Oriental rugs. Id., at 945, 955. One of these
stories was carried under the front-page headline: "Accused
killer says he stabbed Dale City woman after
argument." Id., at 945.
reported that Mu'Min had admitted at least having
contemplated raping Nopwasky. According to this
article, Mu'Min had told authorites, " `The thought
did cross my mind, but I did not have sex with her.'
" Id., at 959. This item was reported as a
front-page story, captioned by the headline: "Mu'Min
Says He Decided against Raping Nopwasky." Ibid.
See also id., at 922 (headline reading "Laxity
was factor in sex killing").
Those who read
the detailed reporting of Mu'Min's background would
have come away with little doubt that Mu'Min was
fully capable of committing the brutal murder of
which he was accused. One front-page story set forth
the details of Mu'Min's 1973 murder of a cab driver.
See id., at 951. Another, entitled "Accused
killer had history of prison trouble," stated that
between 1973 and 1988, Mu'Min had been cited for 23
violations of prison rules and had been denied
parole six times. Id., at 942. It was also
reported that Mu'Min was a suspect in a recent
prison beating. Id., at 921. Several stories
reported that Mu'Min had strayed from the Dale City
work detail to go on numerous criminal forays before
murdering Nopwasky, sometimes stealing beer and
wine, id., at 932, 956, 959, and on another
occasion breaking into a private home, id.,
at 964. As quoted in a local paper, a Department of
Corrections report acknowledged that Mu'Min " `could
not be described as a model prisoner.' " Id.,
at 939, 969. Contacted by a reporter, one of
Mu'Min's fellow inmates described Mu'Min as a " `lustful'
" individual who did " `strange stuff.' " " `Maybe
not this,' " the inmate was quoted as saying, " `but
I knew something was going to happen.' " Id.,
learned that the murder of Nopwasky could have been
avoided if the State had been permitted to seek the
death penalty in Mu'Min's 1973 murder case. In a
story headlined "Mu'Min avoided death for 1973
murder in Va.," one paper reported that but for this
Court's decision a year earlier in Furman v.
Georgia, 408 U.S. 238 (1972), which
temporarily invalidated the death penalty, the
prosecutor at the earlier trial "would have had a
case of capital murder." App., at 951. As reported
in the press, the prosecutor who indicted Mu'Min for
murdering Nopwasky concurred that the case
underscored the need for " `more and swifter capital
punishment.' " Id., at 980.
residents following the controversy were told in no
uncertain terms that their local officials were
already convinced of Mu'Min's guilt. The local
Congressman announced that he was "deeply distressed
by news that my constituent Gladys Nopwasky was
murdered by a convicted murderer serving in a
highway department work program" and demanded an
explanation of the "decisions that allowed a person
like Dawad Mu'min to commit murder." Id., at
981. His opponent in the 1988 congressional election,
a member of the Virginia House of Delegates,
likewise wrote an editorial in which he stated, "I
am outraged that a Department of Corrections inmate
apparently murdered a resident of Dale City." Id.,
at 984. Assuring the public that the right person
had been charged with the crime, the local police
chief explained, " `We haven't lost very many [murder
cases] lately. . . . All of the evidence will come
out at some point.' " Id., at 979. Indeed, by
virtue of the intense media coverage, that "point"
was reached long before trial.
before us is whether, in light of the charged
atmosphere that surrounded this case, the trial
court was constitutionally obliged to ask the eight
jurors who admitted exposure to pretrial publicity
to identify precisely what they had read,
seen, or heard. The majority answers this question
in the negative. According to the majority, the
trial court need ask no more of a prospective juror
who has admitted exposure to pretrial publicity than
whether that prospective juror views himself as
impartial. Our cases on jurorbias, the majority
asserts, have never gone so far as to require trial
courts to engage in so-called "content questioning,"
and to impose such a requirement would prove unduly
burdensome to the administration of justice. I
cannot accept this analysis.
This Court has
long and repeatedly recognized that exposure to
pretrial publicity may undermine a defendant's Sixth
Amendment guarantee to trial by an impartial jury.
E. g., Irvin v. Dowd, 366 U.S.
717 (1961); Rideau v. Louisiana, 373
U.S. 723 (1963); Sheppard v. Maxwell,
384 U.S. 333 (1966); Murphy v. Florida,
421 U.S. 794 (1975); Patton v. Yount,
467 U.S. 1025 (1984).
[n.1] In order for
the jury to fulfill its constitutional role, each
juror must set aside any preconceptions about the
case and base his verdict solely on the evidence at
trial. Irvin v. Dowd, supra, at
722. "The theory of our system is that the
conclusions to be reached in a case will be induced
only by evidence and argument in open court, and not
be any outside influence, whether of private talk or
public print." Patterson v. Colorado
ex rel. Attorney General, 205 U.S. 454, 462
before today, this Court had not been called
upon to address in any great detail the
procedures necessary to assure the protection of
the right to an impartial jury under the Sixth
Amendment. In particular, although our cases
indicate that the trial court's conclusion that a
particular juror has not been overwhelmed by
pretrial publicity is reviewable only for " `manifest
error,' " Patton v. Yount, supra,
at 1031, quoting Irvin v. Dowd,
supra, at 723, we have never indicated the type
of voir dire that the trial court must
undertake in order for its findings to merit this "
`special deference,' " Patton v. Yount,
supra, at 1038, quoting Bose Corp. v.
Consumers Union of U. S., Inc., 466
U.S. 485, 500 (1984). Because the issue in today's
case is essentially one of first impression, the
majority's observation that our racialbias cases
have never "gone so far" as to require content
questioning, see ante, at 15, is irrelevant.
Even assuming that the scope of voir dire in
the pretrial-publicity setting need be no greater
than the scope of voir dire in the racialbias
setting, no inference can be drawn from the failure
of decisions like Ham v. South Carolina,
409 U.S. 524 (1973), and Aldridge v.
United States, 283 U.S. 308 (1931), to "require
questioning of individual jurors about facts or
experiences that might have led to racial bias,"
ante, at 15, because the sole issue in those
cases was whether any inquiry into racial
bias was required.
Indeed, the only
firm conclusion that can be drawn from our impartial-jury
jurisprudence is that a prospective juror's own
"assurances that he is equal to the task cannot be
dispositive of the accused's rights." Murphy
v. Florida, supra, at 800. As
Justice O'Connor has observed, an individual "juror
may have an interest in concealing his own bias . .
. [or] may be unaware of it." Smith v.
Phillips, 455 U.S. 209, 221-222 (1982) (concurring
opinion). "Natural 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 340, 375
(CA7 1972); compare Irvin v. Dowd,
supra, at 728 ("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"). It is simply impossible to square today's
decision with the established principle that, where
a prospective juror admits exposure to pretrial
publicity, the trial court must do more than elicit
a simple profession of open-mindedness before
swearing that person into the jury.
To the extent
that this Court has considered the matter, it has
emphasized that where a case has been attended by
adverse pretrial publicity, the trial court should
undertake "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) (emphasis
added); accord, id., at 602 (Brennan, J.,
concurring in judgment). Anything less than this
renders the defendant's right to an impartial jury
meaningless. See Ham v. South Carolina,
supra, at 532 (Marshall, J.,
concurring in part and dissenting in part). As this
Court has recognized, "[p]reservation of the
opportunity to prove actual bias is a guarantee of a
defendant's right to an impartial jury." Dennis
v. United States, 339 U.S. 162, 171-172
(1950). The fact that the defendant bears the burden
of establishing juror partiality, see, e. g.,
Wainwright v. Witt, 469 U.S. 412, 423
(1985); Irvin v. Dowd, supra,
at 723, makes it all the more imperative that the
defendant be entitled to meaningful examination at
jury selection in order to elicit potential biases
possessed by prospective jurors.
In my view, once
a prospective juror admits exposure to pretrial
publicity, content questioning must be part of the
voir dire for at least three reasons. First,
content questioning is necessary to determine
whether the type and extent of the publicity to
which a prospective juror has been exposed would
disqualify the juror as a matter of law. Our cases
recognize that, under certain circumstances,
exposure to particularly inflammatory publicity
creates so strong a presumption of prejudice that "the
jurors' claims that they can be impartial should not
be believed." Patton v. Yount,
supra, at 1031; see Murphy v. Florida,
421 U. S., at 798-799. For instance, in Irvin
v. Dowd, supra, we concluded that a
capital defendant was constitutionally entitled to a
change of venue because no one who had been
exposed to the inflammatory media descriptions of
his crime and confession could possibly have fairly
judged his case, and because this publicity had
saturated the community in which the defendant was
on trial. See id., at 725-729. Similarly, in
Rideau v. Louisiana, 373 U.S. 723
(1963), we presumed community prejudice mandating a
change in venue when petitioner's filmed confession
obtained during a police interrogation was broadcast
on local television over three consecutive days. See
id., at 724, 726-727. An individual exposed
to publicity qualitatively akin to the publicity at
issue in Irvin and Rideau is
necessarily disqualified from jury service no matter
how earnestly he professes his impartiality.
But unless the trial court asks a prospective juror
exactly what he has read or heard about a
case, the court will not be able to determine
whether the juror comes within this class. Cf.
Murphy v. Florida, supra, at
800-802 (performing careful analysis of content of
pretrial publicity to which jurors had been exposed
before rejecting impartiality challenge);
Sheppard v. Maxwell, 384 U. S., at 357 (observing
that jurors had been exposed to prejudicial
publicity during trial and criticizing trial court's
failure to ask the jurors "whether they had read or
heard specific prejudicial comment about the case").
when pretrial publicity is not so extreme as to make
a juror's exposure to it per se disqualifying,
content questioning still is essential to give legal
depth to the trial court's finding of impartiality.
One of the reasons that a "juror may be unaware of"
his own bias, Smith v. Phillips, 455
U. S., at 222 (O'Connor, J., concurring), is
that the issue of impartiality is a mixed question
of law and fact, see Irwin v. Dowd,
366 U. S., at 723, the resolution of which
necessarily draws upon the trial court's
legal expertise. Where, as in this case, a trial
court asks a prospective juror merely whether he can
be "impartial," the court may well get an answer
that is the product of the juror's own confusion as
to what impartiality is.
[n.4] By asking the
prospective juror in addition to identify what he
has read or heard about the case and what
corresponding impressions he has formed, the trial
court is able to confirm that the impartiality that
the juror professes is the same impartiality that
the Sixth Amendment demands.
questioning facilitates accurate trial court
factfinding. As this Court has recognized, the
impartiality "determination is essentially one of
credibility." Patton v. Yount, 467 U.
S., at 1038. Where a prospective juror acknowledges
exposure to pretrial publicity, the precise content
of that publicity constitutes contextual information
essential to an accurate assessment of whether the
prospective juror's profession of impartiality is
believable. If the trial court declines to develop
this background, its finding of impartiality simply
does not merit appellate deference.
In my view, the
circumstances of this case presented a clear need
for content questioning. Exactly two-thirds
of the persons on Mu'Min's jury admitted having been
exposed to information about the case before trial.
As I have shown, see supra, at 2-5, the
stories printed prior to trial were extraordinarily
prejudicial, and were made no less so by the
inflammatory headlines typically used to introduce
them. Much of the pretrial publicity was of the type
long thought to be uniquely destructive of a juror's
ability to maintain an open mind about a case — in
particular, reports of Mu'Min's confession, see
Nebraska Press Assn. v. Stuart, 427 U.
S., at 541, 563; id., at 602 (Brennan, J.,
concurring in judgment); Rideau v.
Louisiana, supra, Irvin v. Dowd,
supra, at 725726; statements by prominent
public officials attesting to Mu'Min's guilt, see
Nebraska Press Assn. v. Stuart, supra,
at 602 (Brennan, J., concurring in judgment);
Sheppard v. Maxwell, supra, at
340, 349; and reports of Mu'Min's unsavory past, see
Irvin v. Dowd, supra, at
725-726. Because of the profoundly prejudicial
nature of what was published in the newspapers prior
to trial, any juror exposed to the bulk of it
certainly would have been disqualified as a matter
of law under the standards set out in Irvin
and Rideau. Indeed, the single story
headlined "Murderer confesses to killing woman," App.
975-976, or alternatively the story headlined "Accused
killer says he stabbed Dale City woman after
argument," id., at 945, in my opinion would
have had just as destructive an effect upon the
impartiality of anyone who read it as did the filmed
confession in Rideau upon the members of the
community in which it was broadcast. At minimum,
without inquiry into what stories had been read by
the eight members of the jury who acknowledged
exposure to pretrial publicity, the trial court was
in no position to credit their individual
professions of impartiality.
Justice O'Connor, the trial court was not
obliged to pose content questions because "the trial
judge himself was familiar with the potentially
prejudicial publicity to which the jurors might have
been exposed." Ante, at 2 (concurring opinion).
I find this observation perplexing. The judge's
awareness of the contents of the extraordinarily
prejudicial stories written about Mu'Min is not a
substitute for knowledge of whether the
prospective jurors were aware of the
content of these stories. As I have explained, it is
the judge's ignorance of the jurors' exposure
to particular stories that renders his findings of
juror impartiality unworthy of appellate deference.
Indeed, because at least two of the stories would
have rendered any person who read them per
se unqualified to sit on the jury, the trial
judge's awareness of these stories makes even more
inexcusable his willingness to seat the jurors
without first ascertaining what they had read about
[n.5] Nor is it any
answer to protest, as Justice O'Connor does,
that the trial court "repeatedly" asked the
prospective jurors whether they thought they could
be fair. Ibid. When a prospective juror
admits exposure to pretrial publicity, the juror's
assertion of impartiality, on its own, is
insufficient to establish his impartiality for
constitutional purposes. I do not see how the
juror's assertion of impartiality becomes any more
sufficient merely through repetition.
reject the majority's claim that content questioning
should be rejected because it would unduly burden
trial courts. See ante, at 8-9. Sixty years
ago, Chief Justice Hughes rejected a similar
"The argument is
advanced on behalf of the Government that it would
be detrimental to the administration of the law in
the courts of the United States to allow questions
to jurors as to racial or religious prejudices. We
think that it would be far more injurious to permit
it to be thought that persons entertaining a
disqualifying prejudice were allowed to serve as
jurors and that inquiries designed to elicit the
fact of disqualification were barred. No surer way
could be devised to bring the processes of justice
into disrepute." Aldridge v. United States,
283 U. S., at 314-315.
is fully applicable here.
In any case, the
majority's solicitude for administrative convenience
is wholly gratuitous. Numerous Federal Circuits and
States have adopted the sorts of procedures for
screening juror bias that the majority disparages as
being excessively intrusive. See United States
v. Addonozio, 451 F. 2d 49, 67 (CA3 1971) (content
questioning and sequestered voir dire), cert.
denied, 405 U.S. 936 (1972); United States v.
Davis, 583 F. 2d 190, 196 (CA5 1978) (content
questioning); Silverthorne v. United
States, 400 F. 2d 627, 639 (CA9 1968) (content
questioning); Minn. Rule Crim. Proc. 26.02, Subd.
4(2)(b) (sequestered voir dire); State
v. Pokini, 55 Haw. 640, 643-644, 526 P. 2d
94, 100-101 (1974) (content questioning); State
v. Godson, 412 So. 2d 1077, 1081 (La. 1982) (content
questioning and sequestered voir dire);
State v. Claybrook, 736 S. W. 2d 95,
99-100 (Tenn. 1987) (sequestered voir dire);
State v. Herman, 93 Wash. 2d 590,
593-594, 611 P. 2d 748, 750 (1980) (sequestered
voir dire); State v. Finley, — W.
Va. —, — —, 355 S. E. 2d 47, 50-51 (1987) (sequestered
voir dire). See also United States v.
Colabella, 448 F. 2d 1299, 1303 (CA2 1971) (recommending
sequestered voir dire in cases involving
prejudicial pretrial publicity); United States
v. Harris, 542 F. 2d 1283, 1295 (CA7 1976) (same),
cert. denied sub. nom. Clay v.
United States, 430 U.S. 934 (1977), American Bar
Association Standards for Criminal Justice 8-3.5(a)
(2d ed. 1980) (same), Judicial Conference of the
United States, Revised Report of the Judicial
Conference Committee on the Operation of the Jury
System on the "Free Press — Fair Trial" Issue, 87 F.
R. D. 519, 532-533 (1980) (same).
two other States guarantee criminal defendants
sequestered voir dire as a matter of right in
all capital cases. See Ky. Rule Crim. Proc. 9.38;
Tex. Code Crim. Proc. Ann., Art. 35.17 (Vernon
1989). In short, the majority's anxiety is difficult
to credit in light of the number of jurisdictions
that have concluded that meaningful steps can be
taken to insulate the proceedings from juror bias
without compromising judicial efficiency.
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. The reason for this
is simple and compelling: In our system of justice,
"only the jury may strip a man of his liberty or his
life." Irvin v. Dowd, 366 U. S., at
Eight of the
twelve jurors who voted to strip Dawud Majid Mu'Min
of his life may well have been rendered incapable of
reaching any other verdict after reading of the
grisly accusations against Mu'Min and the succession
of stories indicating that he was guilty. The
majority holds that the trial court was entitled to
seat those jurors — entirely blind to what they in
fact already knew about the case — based solely upon
their assertions of impartiality. Far from "tak[ing]
strong measures to ensure that the balance [was not]
weighed against the accused," the procedures
undertaken in this case amounted to no more than the
trial court going through the motions. I cannot
accept that a defendant's Sixth Amendment right to
an impartial jury means so little. I dissent.
Even if I were
to believe that the procedures employed at Mu'Min's
jury selection satisfied the requirements of the
Sixth Amendment, I still would vacate his death
sentence. I adhere to my view that the death penalty
is in all circumstances cruel and unusual punishment
prohibited by the Eighth and Fourteenth Amendments.
Gregg v. Georgia, 428 U.S. 153, 231
(1976) (Marshall, J., dissenting).