366 U.S.

717
81 S.Ct. 1639
6 L.Ed.2d 751

Leslie IRVIN, Petitioner,

v.
A. F. DOWD, Warden.
No. 41.
Argued Nov. 9, 1960.
Decided June 5, 1961.

Messrs. Theodore Lockyear, Jr., and James D. Lopp, Evansville, Ind.,

Messrs. Hahn, Zimmerman, Nafe & Fisher by Mr. James D. Nafe, South
Bend, Ind., on the brief, for petitioner.
Mr. Richard M. Givan, Indianapolis, Ind., for respondent.
Mr. Justice CLARK delivered the opinion of the Court.

This is a habeas corpus proceeding, brought to test the validity of petitioner's

conviction of murder and sentence of death in the Circuit Court of Gibson
County, Indiana. The Indiana Supreme Court affirmed the conviction in Irvin v.
State, 236 Ind. 384, 139 N.E.2d 898, and we denied direct review by certiorari
'without prejudice to filing for federal habeas corpus after exhausting state
remedies.' 353 U.S. 948, 77 S.Ct. 827, 1 L.Ed.2d 857. Petitioner immediately
sought a writ of heabea corpus, under 28 U.S.C. 2241, 28 U.S.C.A. 2241,1
in the District Court for the Northern District of Indiana, claiming that his
conviction had been obtained in violation of the Fourteenth Amendment in that
he did not receive a fair trial. That court dismissed the proceeding on the
ground that petitioner had failed to exhaust his state remedies. 153 F.Supp. 531.
On appeal, the Court of Appeals for the Seventh Circuit affirmed the dismissal.
251 F.2d 548. We granted certiorari, 356 U.S. 948, 78 S.Ct. 921, 2 L.Ed.2d
842, and remanded to the Court of Appeals for decision on the merits or remand
to the District Court for reconsideration. 359 U.S. 394, 79 S.Ct. 825, 3 L.Ed.2d
900. The Court of Appeals retained jurisdiction and decided the claim adversely
to petitioner. 271 F.2d 552. We granted certiorari, 361 U.S. 959, 80 S.Ct. 607, 4
L.Ed.2d 542.

As stated in the former opinion, 359 U.S. at pages 396397, 79 S.Ct. at page
827:

'The constitutional claim arises in this way. Six murders were committed in the
vicinity of Evansville, Indiana, two in December 1954, and four in March 1955.
The crimes, extensively covered by news media in the locality, aroused great
excitement ad indignation throughout Vanderburgh County, where Evansville is
located, and adjoining Gibson County, a rural county of approximately 30,000
inhabitants. The petitioner was arrested on April 8, 1955. Shortly thereafter, the
Prosecutor of Vanderburgh County and Evansville police officials issued press
releases, which were intensively publicized, stating that the petitioner had
confessed to the six murders. The Vanderburgh County Grand Jury soon
indicted the petitioner for the murder which resulted in his conviction. This was
the murder of Whitney Wesley Kerr allegedly committed in Vanderburgh
County on December 23, 1954. Counsel appointed to defend petitioner
immediately sought a change of venue from Vanderburgh County, which was
granted, but to adjoining Gibson County. Alleging that the widespread and
inflammatory publicity had also highly prejudiced the inhabitants of Gibson
County against the petitioner, counsel, on October 29, 1955, sought another
change of venue, from Gibson County to a county sufficiently removed from
the Evansville locality that a fair trial would not be prejudiced. The motion was
denied, apparently because the pertinent Indiana statute allows only a single
change of venue.'

During the course of the voir dire examination, which lasted some four weeks,
petitioner filed two more motions for a change of venue and eight motions for
continuances. All were denied.

At the outset we are met with the Indiana statute providing that only one
change of venue shall be granted 'from the county' wherein the offense was
committed.2 Since petitioner had already been afforded one change of venue,
and had been denied further changes solely on the basis of the statute, he
attacked its constitutionality. The Court of Appeals upheld its validity.
However, in the light of State ex rel. Gannon v. Porter Circuit Court, 239 Ind.
637, 159 N.E.2d 713, we do not believe that argument poses a serious problem.
There the Indiana Supreme Court held that if it was 'made to appear after
attempt has actually been made to secure an impartial jury that such jury could
not be obtained in the county of present venue * * * it becomes the duty of the
judiciary to provide to every accused a public trial by an impartial jury, even
though to do so the court must grant a second change of venue and thus
contravenue (the statute) * * *.' 239 Ind at page 642, 159 N.E.2d at page 715.
The prosecution attempts to distinguish that case on the ground that the District

Attorney there conceded that a fair trial could not be had in La Porte County
and that the court, therefore, properly ordered a second change of venue despite
the language of the statute. Inasmuch as the statute says nothing of concessions,
we do not believe that the Indiana Supreme Court conditions the duty of the
judiciary to transfer a case to another county solely upon the representation by
the prosecutor regardless of the trial court's own estimate of local conditions
that an impartial jury may not be impaneled. As we read Gannon, it stands for
the proposition that the necessity for transfer will depend upon the totality of
the surrounding facts. Under this construction the statute is not, on its face,
subject to attack on due process grounds.
6

England, from whom the Western World has largely taken its concepts of
individual liberty and of the dignity and worth of every man, has bequeathed to
us safeguards for their preservation, the most priceless of which is that of trial
by jury. This right a become as much American as it was once the most
English. Although this Court has said that the Fourteenth Amendment does not
demand the use of jury trials in a State's criminal procedure, Fay v. People of
State of New York, 332 U.S. 261, 67 S.Ct. 1613, 91 L.Ed. 2043; Palko v. State
of Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288, every State has
constitutionally provided trial by jury. See Columbia University Legislative
Drafting Research Fund, Index Digest of State Constitutions, 578579 (1959).
In essence, the right to jury trial guarantees to the criminally accused a fair trial
by a panel of impartial, 'indifferent' jurors. The failure to accord an accused a
fair hearing violates even the minimal standards of due process. In re Oliver,
333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682; Tumey v. State of Ohio, 273 U.S.
510, 47 S.Ct. 437, 71 L.Ed. 749. 'A fair trial in a fair tribunal is a basic
requirement of due process.' In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623,
625, 99 L.Ed. 942. In the ultimate analysis, only the jury can strip a man of his
liberty or his life. In the language of Lord Coke, a juror must be as 'indifferent
as he stands unsworne.' Co.Litt. 155b. His verdict must be based upon the
evidence developed at the trial. Cf. Thompson v. City of Louisville, 362 U.S.
199, 80 S.Ct. 624, 4 L.Ed.2d 654. This is true, regardless of the heinousness of
the crime charged, the apparent guilt of the offender or the station in life which
he occupies. It was so written into our law as early as 1807 by Chief Justice
Marshall in 1 Burr's Trial 416(1807).3 'The theory of the law is that a juror who
has formed an opinion cannot be impartial.' Reynolds v. United States, 98 U.S.
145, 155, 25 L.Ed. 244.

It is not required, however, that the jurors be totally ignorant of the facts and
issues involved. In these days of swift, widespread and diverse methods of
communication, an important case can be expected to arouse the interest of the
public in the vicinity, and scarcely any of those best qualified to serve as jurors

will not have formed some impression or opinion as to the merits of the case.
This is particularly true in criminal cases. To hold that the mere existence of
any preconceived notion as to the guilt or innocence of an accused, without
more, is sufficient to rebut the presumption of a prospective juror's impartiality
would be to establish an impossible standard. It is sufficient if the juror can lay
aside his impression or opinion and render a verdict based on the evidence
presented in court. Spies v. People of State of Illinois, 123 U.S. 131, 8 S.Ct. 22,
31 L.Ed. 80; Holt v. United States, 218 U.S. 245, 31 S.Ct. 2, 54 L.Ed. 1021;
Reynolds v. United States, supra.
8

The adoption of such a rule, however, 'cannot foreclose inquiry as to whether,

in a given case, the application of that rule works a deprivation of the prisoner's
life or liberty without due process of law.' Lisenba v. People of State of
California, 314 U.S. 219, 236, 62 S.Ct. 280, 290, 86 L.Ed. 166. As stated in
Reynolds, the test is 'whether the nature and strength of the opinion formed are
such as in law necessarily * * * raise the presumption of partiality. The question
thus presented is one of mixed law and fact * * *.' At page 156 of 98 U.S. 'The
affirmative of the issue is upon the challenger. Unless he shows the actual
existence of such an opinion in the mind of the juror as will raise the
presumption of partiality, the juror need not necessarily be set aside * * *. If a
positive and decided opinion had e en formed, he would have been incompetent
even though it had not been expressed.' At page 157 of 98 U.S. As was stated in
Brown v. Allen, 344 U.S. 443, 507, 73 S.Ct. 397, 446, 97 L.Ed. 469, the 'socalled mixed questions or the application of constitutional principles to the facts
as found leave the duty of adjudication with the federal judge.' It was, therefore,
the duty of the Court of Appeals to independently evaluate the voir dire
testimony of the impaneled jurors.

The rule was established in Reynolds that '(t)he finding of the trial court upon
that issue (the force of a prospective juror's opinion) ought not be set aside by a
reviewing court, unless the error is manifest.' 98 U.S. at page 156. In later cases
this Court revisited Reynolds, citing it in each instance for the proposition that
findings of impartiality should be set aside only where prejudice is 'manifest.'
Holt v. United States, supra; Spies v. People of State of Illinois, supra; Hopt v.
People of State of Utah, 120 U.S. 430, 7 S.Ct. 614, 30 L.Ed. 708. Indiana
agrees that a trial by jurors having a fixed, preconceived opinion of the
accused's guilt would be a denial of due process, but points out that the voir dire
examination discloses that each juror qualified under the applicable Indiana
statute.4 It is true that the presiding judge personally examined those members
of the jury panel whom petitioner, having no more peremptory challenges,
insisted should be excused for cause, and that each indicated that
notwithstanding his opinion he could render an impartial verdict. But as Chief

Justice Hughes observed in United States v. Wood, 299 U.S. 123, 145146, 57
S.Ct. 177, 185, 81 L.Ed. 78: 'Impartiality is not a technical conception. It is a
state of mind. For the ascertainment of this mental attitude of appropriate
indifference, the Constitution lays down no particular tests and procedure is not
chained to any ancient and artificial formula.'
10

Here the build-up of prejudice is clear and convincing. An examination of the

then current community pattern of thought as indicated by the popular news
media is singularly revealing. For example, petitioner's first motion for a
change of venue from Gibson County alleged that the awaited trial of petitioner
had become the cause celebre of this small communityso much so that
curbstone opinions, not only as to petitioner's guilt but even as to what
punishment he should receive, were solicited and recorded on the public streets
by a roving reporter, and later were broadcast over the local stations. A reading
of the 46 exhibits which petitioner attached to his motion indicates that a
barrage of newspaper headlines, articles, cartoons and pictures was unleashed
against him during the six or seven months preceding his trial. The motion
further alleged that the newspapers in which the stories appeared were
delivered regularly to approximately 95% of the dwellings in Gibson County
and that, in addition, the Evansville radio and TV stations, which likewise
blanketed that county, also carried extensive newscasts covering the same
incidents. These stories revealed the details of his background, including a
reference to crimes committed when a juvenile, his convictions for arson
almost 20 years previously, for burglary and by a court-martial on AWOL
charges during the war. He was accused of being a parole violator. The
headlines announced his police line-up identification, that he faced a lie
detector test, had been placed at the scene of the crime and that the six murders
were solved but petitioner refused to confess. Finally, they announced his
confession to the six murders and the fact of his indictment for four of them in
Indiana. They reported petitioner's offer to plead guilty if promised a 99-year
sentence, but also the determination, on the other hand, of the prosecutor to
secure the death penalty, and that petitioner had confessed to 24 burglaries (the
modus operandi of these robberies was compared to that of the murders and the
similarity noted). One story dramatically relayed the promise of a sheriff to
devote his life to securing petitioner's execution by the State of Kentucky,
where petitioner is alleged to have committed one of the six murders, if Indiana
failed to do so. Another characterized petitioner as remorseless and without
conscience but also as having been found sane by a court-appointed panel of
doctors. In many of the stories petitioner was described as the 'confessed slayer
of six,' a parole violator and fraudulent-check artist. Petitioner's court-appointed
counsel was quoted as having received 'much criticism over being Irvin's
counsel' and it was pointed out, by way of excusing the attorney, that he would

be subject to disbarment should he refuse to represent Irvin. On the day before

the trial the newspapers carried the story that Irvin had orally admitted the
murder of Kerr (the victim in this case) as well as 'the robbery-murder of Mrs.
Mary Holland; the murder of Mrs. Wilhelmina Sailer in Posey County, and the
slaughter of three members of the Duncan family in Henderson County, Ky.'
11

It cannot be gainsaid that the force of this continued adverse publicity caused a
sustained excitement and fostered a strong prejudice among the people of
Gibson County. In fact, on the second day devoted to the selection of the jury,
the newspapers reported that 'strong feelings, often bitter and angry, rumbled to
the surface,' and that 'the extent to which the multiple murdersthree in one
familyhave aroused feelings throughout the area was emphasized Friday
when 27 of the 35 prospective jurors questioned were excused for holding
biased pretrial opinions * * *.' A few days later the feeling was described as 'a
pattern of deep and bitter prejudice against the former pipe-fitter.' Spectator
comments, as printed by the newspapers, were 'my mind is made up'; 'I think he
is guilty'; and 'he should be hanged.'

12

Finally, and with remarkable understatement, the headlines reported that

'impartial jurors are hard to find.' The panel consisted of 430 persons. The court
itself excused 268 of those on challenges for cause as having fixed opinions as
to the guilt of petitioner; 103 were excused because of conscientious objection
to the imposition of the death penalty; 20, the maximum allowed, were
peremptorily challenged by petitioner and 10 by the State; 12 persons and two
alternates were selected as jurors and the rest were excused on personal
grounds, e.g., deafness, doctor's orders, etc. An examination of the 2,783-page
voir dire record shows that 370 prospective jurors or almost 90% of those
examined on the point (10 members of the panel were never asked whether or
not they had any opinion) entertained some opinion as to guiltranging in
intensity from mere suspicion to absolute certainty. A number admitted that, if
they were in the accused's place in the dock and he in theirs on the jury with
their opinions, they would no want him on a jury.

13

Here the 'pattern of deep and bitter prejudice' shown to be present throughout
the community, cf. Stroble v. State of California, 343 U.S. 181, 72 S.Ct. 599,
96 L.Ed. 872, was clearly reflected in the sum total of the voir dire examination
of a majority of the jurors finally placed in the jury box. Eight out of the 12
thought petitioner was guilty. With such an opinion permeating their minds, it
would be difficult to say that each could exclude this preconception of guilt
from his deliberations. The influence that lurks in an opinion once formed is so
persistent that it unconsciously fights detachment from the mental processes of
the average man. See Delaney v. United States, 1 Cir., 199 F.2d 107, 39

A.L.R.2d 1300. Where one's life is at stake and accounting for the frailties of
human naturewe can only say that in the light of the circumstances here the
finding of impartiality does not meet constitutional standards. Two-thirds of the
jurors had an opinion that petitioner was guilty and were familiar with the
material facts and circumstances involved, including the fact that other murders
were attributed to him, some going so far as to say that it would take evidence
to overcome their belief. One said that he 'could not * * * give the defendant
the benefit of the doubt that he is innocent.' Another stated that he had a
'somewhat' certain fixed opinion as to petitioner's guilt. No doubt each juror
was sincere when he said that he would be fair and impartial to petitioner, but
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.' With his life at stake, it is not requiring too much
that petitioner be tried in an atmosphere undisturbed by so huge a wave of
public passion and by a jury other than one in which two-thirds of the members
admit, before hearing any testimony, to possessing a belief in his guilt. Stroble
v. State of California, 343 U.S. 181, 72 S.Ct. 599; Shepherd v. State of Florida,
341 U.S. 50, 71 S.Ct. 549, 95 L.Ed. 740 (concurring opinion); Moore v.
Dempsey, 261 U.S. 86, 43 S.Ct. 265, 67 L.Ed. 543.
14

Petitioner's detention and sentence of death pursuant to the void judgment is in

violation of the Constitution of the United States and he is therefore entitled to
be freed therefrom. The judgments of the Court of Appeals and the District
Court are vacated and the case remanded to the latter. However, petitioner is
still subject to custody under the indictment filed by the State of Indiana in the
Circuit Court of Gibson County charging him with murder in the first degree
and may be tried on this or another indictment. The District Court has power, in
a habeas corpus proceeding, to 'dispose of the matter as law and justice require.'
28 U.S.C. 2243, 28 U.S.C.A. 2243. Under the predecessors of this section,
'this court has often delayed the discharge of the petitioner for such reasonable
time as may be necessary to have him taken before the court where the
judgment was rendered, that defects which render discharge necessary may be
corrected.' Mahler v. Eby, 264 U.S. 32, 46, 44 S.Ct. 283, 288, 68 L.Ed. 549.
Therefore, on remand, the District Court should enter such orders as are
appropriate and consistent with this opinion, cf. Grandsinger v. Bovey, D.C.,
153 F.Supp. 201, 240, which allow the State a reasonable time in which to retry
petitioner. Cf. Chessman v. Teets, 354 U.S. 156, 77 S.Ct. 1127, 1 L.Ed.2d
1253; Dowd v. United States ex rel. Cook, 340 U.S. 206, 71 S.Ct. 262, 95 L.Ed.
215; Tod v. Waldman, 266 U.S. 113, 45 S.Ct. 85, 69 L.Ed. 195.

15

Vacated and remanded.

16

Mr. Justice FRANKFURTER, concurring.

17

Of course I agree with the Court's opinion. But this is, unfortunately, not an
isolated case that happened in Evansville, Indiana, nor an atypical miscarriage
of justice due to anticipatory r ial by newspapers instead of trial in court before
a jury.

18

More than one student of society has expressed the view that not the least
significant test of the quality of a civilization is its treatment of those charged
with crime, particularly with offenses which arouse the passions of a
community. One of the rightful boasts of Western civilization is that the State
has the burden of establishing guilt solely on the basis of evidence produced in
court and under circumstances assuring an accused all the safeguards of a fair
procedure. These rudimentary conditions for determining guilt are inevitably
wanting if the jury which is to sit in judgment on a fellow human being comes
to its task with its mind ineradicably poisoned against him. How can fallible
men and women reach a disinterested verdict based exclusively on what they
heard in court when, before they entered the jury box, their minds were
saturated by press and radio for months preceding by matter designed to
establish the guilt of the accused. A conviction so secured obviously constitutes
a denial of due process of law in its most rudimentary conception.

19

Not a Term passes without this Court being importuned to review convictions,
had in States throughout the country, in which substantial claims are made that
a jury trial has been distorted because of inflammatory newspaper accounts
too often, as in this case, with the prosecutor's collaborationexerting
pressures upon potential jurors before trial and even during the course of trial,
thereby making it extremely difficult, if not impossible, to secure a jury capable
of taking in, free of prepossessions, evidence submitted in open court. Indeed
such extraneous influences, in violation of the decencies guaranteed by our
Constitution, are sometimes so powerful that an accused is forced, as a practical
matter, to forego trial by jury. See State of Maryland v. Baltimore Radio Show,
338 U.S. 912, 915, 70 S.Ct. 252, 253, 94 L.Ed. 562. For one reason or another
this Court does not undertake to review all such envenomed state prosecutions.
But, again and again, such disregard of fundamental fairness is so flagrant that
the Court is compelled, as it was only a week ago, to reverse a conviction in
which prejudicial newspaper intrusion has poisoned the outcome. Janko v.
United States, 366 U.S. 716, 81 S.Ct. 1662, 6 L.Ed.2d 846; see e.g., Marshall v.
United States, 360 U.S. 310, 79 S.Ct. 1171, 3 L.Ed.2d 1250. See also Stroble v.
State of California, 343 U.S. 181, 198, 72 S.Ct. 599, 607, 96 L.Ed. 872
(dissenting opinion); Shepherd v. State of Florida, 341 U.S. 50, 71 S.Ct. 549, 95
L.Ed. 740 (concurring opinion). This Court has not yet decided that the fair

administration of criminal justice must be subordinated to another safeguard of

our constitutional systemfreedom of the press, properly conceived. The Court
has not yet decided that, while convictions must be reversed and miscarriages
of justice result because the minds of jurors or potential jurors were poisoned,
the poisoner is constitutionally protected in plying his trade.

Section 2241 provides in pertinent part:

'(a) Writs of habeas corpus may be granted by the * * * district courts * * *
within their respective jurisdictions. * * *
'(c) The writ of habeas corpus shall not be extended to a prisoner unless * * *
'(3) He is in custody in violation of the Constitution or laws or treaties of the
United States * * *.'

Burns' Ind.Stat.Ann., 1956 Replacement Vol., 91305, provides in pertinent

part: 'When affidavits for a change of venue are founded upon excitement or
prejudice in the county against the defendant, the court, in all cases not
punishable by death, may, in its discretion, and in all cases punishable by death,
shall grant a change of venue to the most convenient county. * * * Provided,
however, That only one (1) change of venue from the judge and only one (1)
change from the county shall be granted.'

'(L)ight impressions which may fairly be supposed to yield to the testimony that
may be offered; which may leave the mind open to a fair consideration of that
testimony, constitute no sufficient objection to a juror; but that those strong and
deep impressions, which will close the mind against the testimony that may be
offered in opposition to them; which will combat that testimony and resist its
force, do constitute a sufficient objection to him.'

'Challenges for cause.The following shall be good causes for challenge to

any person called as a juror in any criminal trial:
'Second. That he has formed or expressed an opinion as to the guilt or
innocence of the defendant. But if a person called as a juror states that he has
formed or expressed an opinion as to the guilt or innocence of the defendant,
the court or the parties shall thereupon proceed to examine such juror on oath
as to the ground of such opinion; and if it appears to have been founded upon
reading newspaper statements, communications, comments or reports, or upon
rumors or hearsay, and not upon conversation with witnesses of the transaction,
or reading reports of their testimony, or hearing them testify, and the juror

states on oath that he feels able, notwithstanding such opinion, to render an

impartial verdict upon the law and evidence, the court, if satisfied that he is
impartial and will render such verdict, may in its discretion, admit him as
competent to serve in such case.' Burns' Ind.Stat.Ann., 1956 Replacement Vol.,
91504.