MR. JUSTICE BURTON delivered the opinion of the Court.
The question before us is whether the accused, who is under a sentence of death, imposed by a Pennsylvania court and jury for murder committed during the course of an armed robbery, was tried under such prejudicial circumstances and improper influences that he was denied the due process of law guaranteed by the Fourteenth Amendment to the Constitution of the United States. The charges in this federal habeas corpus proceeding are that an atmosphere of hysteria and prejudice prevailed at the state trial, including the prejudicial conduct and frequent presence in the courtroom of another judge of the same court, who recently had presided over a trial of two associates of petitioner and which had resulted in a like conviction and sentence for the murder committed. For the reasons hereafter stated, we agree with the considered judgments of the state court, Pennsylvania ex rel. Darcy v. Claudy, 367 Pa. 130, 79 A.2d 785; the Federal District Court, 130 F.Supp. 270; and the Court of Appeals, 224 F.2d 504; holding that the accused was not denied due process of law.
Late on December 22, 1947, petitioner Darcy and three associates, Foster, Zeitz and Capone, armed with revolvers, held up a tavern in Feasterville, near Doylestown, Bucks County, Pennsylvania.
On January 5, 1948, petitioner and his three companions were brought to Bucks County, charged with the murder of William Kelly and committed, without bail, to await action by the grand jury. On February 10, all four being present and all but one being represented by counsel of his own choice, they were severally indicted for murder. The District Attorney moved for a continuance because Foster was without counsel, and because one prosecution witness was in a critical condition from the wound received at the time of the robbery. The continuance was granted. On March 1, counsel for petitioner and Capone moved for a severance and separate trials. Judge Keller of the nisi prius or trial court (Court of Oyer and Terminer and General Jail Delivery of Bucks County) suggested the advisability of a combination trial, but granted the motions when counsel insisted on their right to them. On March 3, Judge Boyer, of the same court, appointed two local attorneys to represent Foster.
In March, defense counsel were advised that the Foster-Zeitz case would be called first, petitioner's case the following week, and then Capone's case.
At no time during either the Foster-Zeitz trial or petitioner's trial was the courtroom filled to capacity and at no time was there any need for the court to call for order. No outbursts, disturbances or untoward incidents occurred in the courtroom or elsewhere in the county.
In Pennsylvania, the jury fixes the penalty for murder in the first degree.
A few moments earlier, Judge Keller, in discharging the remainder of the May 24 panel, had, in the same courtroom, commended them for their satisfactory verdicts, the last one of which had been an acquittal on a charge of rape.
On Monday, June 7, petitioner's trial began. The court opened at 10 a.m., with both Judge Boyer and Judge Keller presiding. As usual, miscellaneous business, unrelated to the impending trial, was first disposed of by the court. Petitioner was then arraigned. He pleaded not guilty and, upon Judge Keller's direction, the selection of the jury was commenced. At various times during petitioner's trial, although it was presided over by Judge Keller, Judge Boyer was in attendance, sitting either on the bench with Judge Keller or in the courtroom within the enclosure reserved for attorneys, the parties and the press. In this connection, the Federal District Court found that—
On Monday, June 14, petitioner's case went to the jury. It returned a verdict of guilty and fixed the penalty at death. The subsequent proceedings in this case, extending
Petitioner's charge is that (a) the news coverage of the robbery and of the proceedings prior to his trial, including the Foster-Zeitz trial and Judge Boyer's reported remarks to the jury in that case, created such an atmosphere of hysteria and prejudice that it prevented him from having a fair trial, (b) notwithstanding that he was granted a severance, he was forced to go to trial within one week of the trial of his companions, Foster and Zeitz, and (c) in the light of (a) and (b) above, Judge Boyer's presence and participation in petitioner's trial prevented him from
Petitioner has been given ample opportunity to prove that he has been denied due process of law. While this Court stands ready to correct violations of constitutional rights, it also holds that "it is not asking too much that the burden of showing essential unfairness be sustained by him who claims such injustice and seeks to have the result set aside, and that it be sustained not as a matter of speculation but as a demonstrable reality." Adams v. United States ex rel. McCann, 317 U.S. 269, 281. See also, Buchalter v. New York, 319 U.S. 427, 431; Stroble v. California, 343 U.S. 181, 198. Justice Holmes, speaking for a unanimous Court in Holt v. United States, 218 U.S. 245, 251, cautioned that "If the mere opportunity for prejudice or corruption is to raise a presumption that they exist, it will be hard to maintain jury trial under the conditions of the present day."
We have examined petitioner's allegations, the testimony and documentary evidence in support thereof, and his arguments. We conclude that the most that has been shown is that, in certain respects, opportunity for prejudice existed. From this we are asked to infer that petitioner was prejudiced. The law recognizes that prejudice may infect any trial and provides protection against it. For example, provision is made for the voir dire examination and for challenges of jurors who indicate that they may be prejudiced. In addition, a substantial number of peremptory challenges is allowed. This gives to each party a large discretion to exclude jurors deemed objectionable for any reason or no reason. Another protection is available through the severance of the trials of the defendants and through continuances of the respective trials. Still another means of protection is that of a change of venue for proper cause.
On the other hand, the Federal District Court, familiar with the local conditions, has found, on the evidence before it, that petitioner's trial was conducted in a calm judicial manner, without any disturbances, and that the news coverage was "factual, with an occasional descriptive word or phrase, and, on occasion, words of compassion or commendation." 130 F. Supp., at 286. It has found that counsel for petitioner conducted a thorough voir dire examination. In all, 49 persons were challenged for cause or excused—14 for fixed opinion or bias. Petitioner used 10 of the 20 peremptory challenges allowed him,
Nor do we conclude that petitioner was prevented from obtaining a fair jury trial by reason of Judge Boyer's commendatory remarks to the Foster-Zeitz trial jury, reported in the local press two days before petitioner's trial. At most, petitioner has shown that this created a possible opportunity for prejudice. There is no merit in petitioner's claim that he was "forced" to trial immediately after the Foster-Zeitz trial or in his claim that the trial judge should have, sua sponte, changed the venue or continued the trial. See 130 F. Supp., at 292-295.
Petitioner's remaining claim rests largely upon facts which the District Court has found against him. Petitioner alleges that, during the charge to the jury, Judge Boyer passed a note to the District Attorney, who immediately interposed an objection to Judge Keller's charge, and the latter allegedly corrected himself. Petitioner argues that the testimony of the District Attorney and his assistant that they had no recollection of such an incident is insufficient to offset the direct testimony of petitioner's
We also are asked to find that the presence of Judge Boyer on the bench at the beginning of each session of the court, his remaining on the bench after the miscellaneous business was disposed of, and his presence thereafter in the courtroom created such a prejudicial effect upon the jury that it became impossible for it to return a fair verdict and penalty. Except for the one incident where Judge Boyer participated in a sidebar conference out of the hearing of the jury,
Petitioner makes much of the fact that the majority opinion of the Court of Appeals states that Judge Boyer's conduct showed a "striking manifestation of extraordinary interest in the proceedings," and that the jury knew who he was and it was "very probable" they knew that he had just completed the Foster-Zeitz trial. 224 F. 2d, at 508.
MR. JUSTICE HARLAN, whom MR. JUSTICE FRANKFURTER and MR. JUSTICE DOUGLAS join, dissenting.
I would reverse the judgment below on the basis of Judge Boyer's conduct. The central facts against which this conduct must be viewed are that: (1) Zeitz, not petitioner, did the actual killing on which petitioner's trial was based, and (2) petitioner's participation in the robbery being uncontested, the only real issue at his trial was whether he should suffer the death penalty or life imprisonment, which, under the Pennsylvania statute, was a question for the jury. If these facts be kept in mind, I think that the Court, in holding that the case presents no violation of due process, has disposed of Judge Boyer's conduct too lightly.
The Court states that the general atmosphere of the trial was not prejudicial, that Judge Boyer's remarks to the Foster-Zeitz jury raise no substantial due process questions, and that we should not disturb the District Court's findings that the alleged note-passing incident did not occur and that Judge Boyer's participation in the trial was limited to the "sidebar" episode. Accepting this, as I do, it does not end the matter for me, for there still remain these undisputed facts, and the inferences which I think should be drawn from them: The crime was a particularly atrocious one, and Judge Boyer shared
Having regard to the character of the issue with which the jury was confronted, I think these undisputed facts, and the inferences which may be drawn from them, require us to hold that the petitioner has been denied due process. I cannot say that the support lent to the prosecution by Judge Boyer's manifest interest in the trial might not have tipped the scales with the jury in favor of a death verdict, and in a capital case I would resolve that doubt in favor of a new trial. The reasons for my conclusion are those which Judge Kalodner has well stated in his dissenting opinion in the Court of Appeals, 224 F.2d 504, 509. We should be especially scrupulous in seeing to it that the right to a fair trial has not been jeopardized by the conduct of a member of the judiciary.
"We don't propose to nail all our property fast here in Bucks county just because thieves from Philadelphia want to pick up everything which isn't being watched. . . . What business did you have to come up here in the first place? . . . Have you heard what's going on downstairs [referring to petitioner's trial]? . . . Do you want to wind up like that? . . . We in Bucks county are tired of you Philadelphians who don't know how to behave. We have to bear the expense and we propose to stop it."
Since petitioner's jury had no access to this newspaper, these statements could not have affected his trial. But they are indicative of Judge Boyer's sentiments, and of community reaction.
"JUDGE BOYER PRAISES JURY FOR VERDICT CONDEMNING 2 KILLERS TO ELECTRIC CHAIR
"`I don't see how you could, under the evidence, have reached any other verdict,' Judge Boyer said.
"`Your verdict may have a very wholesome effect on other young men in all vicinities who may come to realize the seriousness of the folly in which so many young men indulge these days.
"`The only hope of stemming the tide of such crime by youth is to enforce the law which you have indicated by your decision,' Judge Boyer said."