IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

No. 90-1348

_______________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

CHRISTOPHER BARRY GREER, DANIEL ALVIS WOOD,

SEAN CHRISTIAN TARRANT, MICHAEL LEWIS LAWRENCE,

and JON LANCE JORDAN,

Defendants-Appellants.

__________________________

Appeals from the United States District Court

for the Northern District of Texas

__________________________ (July 30, 1992)

Before POLITZ, Chief Judge, GOLDBERG, KING, GARWOO D, JOLLY,

HIGGINBOTHAM, DAVIS, JONES, SMITH, DUHÉ, WIENER, BARKSDALE, EMILIO

M. GARZA, and DEMOSS, Circuit Judges.

PER CURIAM:

This case was taken en banc to review issues concerning jury

selection discussed in part II of the panel opinion. S ee U nited

States v. Greer

, 939 F.2d 1076, 1084-86 (5th Cir.), vacated for

rehearing en banc

, 948 F.2d 934 (5th Cir. 1991). Except as to

part II, we reinstate the panel o pinion. As relates to the

issues in part II, the court unanimously holds that the district

court did n ot err in refusing to strike for cause all blacks,

Hispanics, and Jewish jurors. Otherwise, as a consequence of an1 "An affirmance by an equally divided c ourt . . . has no precedential

value, see general ly Hertz v. Woodman , 218 U.S. 205, 213-14, 30 S. Ct. 621,

622-23, 54 L. Ed. 101 (1910)

. . . ." L acy v. General F in. Corp. , 651 F.2d

1026, 1028 (5th Cir. Unit B July 1981).

2 For a full exposition of the facts, see the panel opinion in this case.

2 equ ally divided court the actions and decisions of the district

court, as discussed in part II, and the convictions are AFFIRMED

by operation of law. 1

JERRY E. SMITH, Circuit Judge, with whom GOLDBERG, KING, DUHÉ,

WIENER, BARKSDALE, AND EMILIO M. GARZA, Circuit Judges, join,

would affirm the district court for the following reasons:

I.

At trial, the defendants requested that the court strike for

cause all black, Hispanic , and Jewish prospective jurors. 2

Defendants also reque sted that all prospective jurors be asked

whether they are Jewish. The court refused both requests. We

have chosen to review en banc only the court's conduct of voir

dire.

The defendants contend that they were denied the right to a

fair and impartial jury. They maintain that the district court

erred in (1) not excluding al l black, Hispanic, and Jewish

ci tizens for cause from the panel of prospective jurors because

they were intended victims of the alleg ed offenses; (2) failing

to examine po tential jurors regarding racial and ethnic bias so

that defendants could exercise their peremptory challenges

intelligently; and (3) refusing to require Jewish prospective

jurors to identif y themselves as such. We disagree with each of3 The defendants argue that the indictment is framed in such a way as to

make all black, Hispanic, and Jewish citizens intended victims. Assuming,

arguendo

, this reading of the indict ment, we are not prepared to hold that

such a universal victim status constitutionally mandates the exclusion of all

potent ial jurors in those categories. Instead, the pertinent question is

whether the respective members of s uch a universally-described victim class

harbor any bias. That determination, in turn, is a prime function of voir

dire examination.

3 these contentions and conclude that the def endants were not

denied a fair and impartial jury.

A.

The district court correctly decided not to exclude for

cause all black, Hispanic, and Jewish citizens from the panel of

prospective jurors. The indictment charges defendants with

conspiring against black, Hispa nic, and Jewish citizens of the

United States. The defendants argue that all black, Hispanic,

and Jewish persons should have been excluded from the jury

because they were the intended victims of the offense.

We are unwilling to hold that all members of the victims'

racial or religious class necessarily should be excluded in every

hate crimes case in which the classes are broadly described. 3

Absent a showing of individual bias, a court does not abuse its

discretion when it refuses to exc lude for cause an otherwise

qualified class of jurors. S ee Smith v. Phillips

, 455 U. S. 209,

215-17 (1982). Indeed, in a factually similar case, the Fourth

Circuit upheld a district court's refusal to strike for cause all

prospective black jurors when the def endant was an alleged white

supremacist. P erson v. Miller

, 854 F.2d 656, 665 (4th Cir.

1988), cert. denied

, 489 U.S. 1011 (1989). Instead, the court4 See also In re City of Houston

, 745 F.2d 925, 930 (5th Cir. 1984)

(where the judge in a class action suit is a member of the class, recusal is

not appropriate where the judge's interest is not "dir e ct or immediate but

remote or contingent").

5 Although defendants characterize potential bias against them as "racial

bias," and the dissenting opinion makes repeated reference to "racial bias"

and "racial prejudice," see, e.g. , slip op. at 9, 10, 11, 13, 15, 16, 17, the

defendants do not seriously contend that jurors would be prejudiced against

them because they were white. Therefore, the district court properly focused

on moral and ideological, not racial, bias.

4 allowed each individual juror to be questioned for bias. Id. 4

B.

The court adequately questioned the venire regarding

potential bias against the defendants. 5 The district court has

broad discretion in determining how best to conduct voir dire and

in deciding whether to excuse a juror. R osales-Lopez v. United

States

, 451 U.S. 182, 189 (1981 ); Fed. R. Crim. P. 24(a). "We

grant broad discretion to the trial judge in making

determinations of imp artiality and will not interfere with such

decisions absent a clear abuse of discretion." U nited States v.

Hinojosa , 958 F.2d 624, 631 (5th Cir. 1992) (citations omitted).

The test for deter mining whether a court has adequately

questioned pr ospective jurors regarding bias is whether "the

means employed to test impartiality have created a reasonable

assurance that prejudice would be discovered if present." United

States v. Saimiento-Rozo

, 67 6 F.2d 146, 148 (5th Cir. 1982). A

court abuses its discretion when the scope of voir dire is

inadequate to discover bias and d eprives the defendant of an

opportunity to make reasonable use of peremptory challenges. See

United States v. Brown

, 799 F.2d 134, 136 (4th Cir. 1986).5

Failure to question individual jurors about facts or expe riences

that might have led to bias does not necessarily indicate that

voir dire was constitutionally insufficient. Mu'Min v. Virginia

,

111 S. Ct. 1899, 1908 (1991).

The court in this instance adequately inqui red into the

potential jurors' possible biases against the defendants. The

court used three methods to probe bias: an individual

questionnaire, group voir dire, and individual voir dire. An

examination of the court's methods show that th e Saimiento-Rozo

standard was satisfied.

First, each prospective juror filled out a questionnaire

asking for information regarding, i nter alia

, his or her

occ upation; his or her spouse's occupation; whether he or she

regularly attended "church, temple, or other religious services";

whether he or she held "any offices in a church, temple, or

relig ious organization" and, if so, what the office was;

membership in any fraternal, social, professional or public

service organizations; military service ; and whether he or she

h ad "heard or read" anything about the vandalism of Jew ish

properties, t he incidents in the park, skinheads, or skinheads'

involvement in any of the incidents.

Next, the court conducted group voir dire. It explained the

indictment and the presumption of innocence to the venire panel

and asked whether the prospective jurors could follow the

instructions. Three persons answered that they had heard too

much about the case to abide by the presumption of innocence;6

only two were identified in the transcript, both of whom

eventually were struck for cause. After a number of standard

questions, the court asked whether any person knew anyone in the

Hammerskins or was a member of a racial supremacist group.

The court then asked,

Should the evidence show that the Confederate

Hammerskins are a group which advocates white supremacy

and that the Defendants are membe rs of such a group SQ

and I say should because you don't have any evidence

b efore you at this time SQ could you give each of th e

Defendants the same presu mption of innocence and the

same benefit of f ollowing only the evidence adduced in

court and the instructions or law that the Court gives

you without any kind of bias or prejudic e or sympathy

or fear? [Emphasis added.]

Two juror s answered yes and eventually were struck for

cause. The court then asked,

The charges in the in dictment, and I repeat again

that the indictment is just a charge and it is not

evidence of any kind, legend and substance [ sic , allege

in substan ce?] that the Defendants acted to interfere

with the constitutional protected rights of other

persons because of their race or color or national

origin. T he Government may put o n evidence to

demonstrate the Defendants' racial beliefs. However, I

instruct you that the Defendants are not on trial for

their racial beliefs, whether you agree with those

beliefs or don't agree with those beliefs. Now, is

there anyone who could not follow that instruction?

[Emphasis added.]

[no response]

There is this second instruction. You can use

evidence of the be liefs of a Defendant to help decide

whether the Def endant may have acted or may have been

motivatedd [ sic ] to act in accordance with those

beliefs but you are here as jurors only to judge

matters under the Charge and not whether a Defendant

believed in such and such a way, had a belief. Whether

he acted is what you will be talking about. Anybody

who can't follow that sort of instruction? [Emphasis

added.]6 Contrary to defense counsel's representation at en banc oral argument,

every veniremember who had not been struck for cause was questioned

individually. Accordingly, and contrary to the implication of the dissenting

opinion, slip op. at 6, the individ ual questioning was not limited to "each

individual juror who had answered yes on the questionnaire as to whe t her they

had read or heard any press reports about the case."

7 [no response]

Finally, the court briefly questioned each of the fiftythree prospective jur ors individually. 6 It asked what, if

anything, he or she had read or heard about the case. The court

also asked each juror whether he or she c ould be impartial and

could reach a decision based only upon the ev idence in the case.

T he individual questioning elicited admissions of bia s. At

least thirteen persons expresse d hesitation as to whether they

could be impartial. Several of these potential jurors expressed

grave misgivings regarding whether they could be fair and

variously referred to the defendants by such terms as "Nazis,"

"racists," "bigots," a nd "vandals." The responses provided

defendants with sufficient information to exercise their

peremptories intelligently; none of these persons served on the

jury. Further questioning directed at such bias would have been

only cumulative, and, while it might have been appropriate, it

was not constitutionally required.

C.

The court did not abuse its discretion in not requiring

Jewish veniremembers to identify themselves. The issue is

whether sufficient quest ions were asked to ferret out any bias,

not whether specific questions were asked. The voir dire and7 We do not address whether such a que stion would be constitutionally

permissible. Citing, i nter alia

, Edm onson v. Leesville Concrete Co. , 111

S. Ct. 2077, and B atson v. Kentucky

, 476 U.S. 79 (1986), the panel, 93 9 F.2d

at 10 85, opined that the question regarding Jewish identification was constitutionally proscribed. Confining ourselves to whether the questions that were

asked adequately protected the defendants (and thus to the question of whether

t he question on Jewish status is constitutionally required), we do not reach

the issue of the applicability of Batson and Edmonson

.

We note, however, that subsequent to en banc oral argument in this case,

the Supreme Court issued its opinion in G eorgia v. McCollum

, 60 U.S.L.W. 4574

( U.S. June 18, 1992). There, the Court, in accordance with the view taken by

the panel in this case, 939 F.2d 1086, and stridently opposed by the instant

defendants and amicus curiae, now has held squarely that the B atson rationale

applies to the exercise of peremptory strikes by defendants in criminal cases.

Id. at 4576. In emphasizing the requirement of eliminating "race stereotypes"

from the jury selection process, the Court noted that "[t]he need for public

confidence [in that process] is especially high in cases involving race-related crimes." Id.

In McCollum the Court also recog nized "that denying a person participation in jury service on account of his race unconstitutionally discriminates

against the excluded juror. I d. (citing Strauder v. West Virginia

, 10 0 U.S.

303, 308 (1880)). This calls into question the statement in the dissent that

"[t]his is a three-cornered play of prosecutor, judge, and defense counsel S Q

three players, not one." Slip op. at 21. To these three actors must be added

a fourth: the prospective juror who is subject to discrimination on so me invidious ground. We also conclude that Morgan v. Illinois , 112 S. Ct. 2222

(1992), decided only three days be fore M cCollum and relied upon in the dissent, has no direct bearing on the case s ub judice

, as it involves th e narrow question of whether, in a capital case, juro rs must be asked whether they

"would automatically impose the death penalty upon conviction of the defendant." Id.

8 jury question naire constituted an adequate alternative and, as

discussed supra , provided defendants with the opportunity to make

reasonable use of their peremptory challenges.

Nor was the identification of the rel igion of the jurors

constitutionally mandated

. 7 This is so because "[t]o be

constitutionally compelled

. . ., it is not enough that

. . . [particular] questions might be helpful [in assessing juror

bias or in exercising peremptory ch allenges]." M u'Min

, 111

S. Ct. at 1905 (1991) (state habeas corpus case) (citing Murphy

v. Florida , 421 U.S. 794, 799 (1975)).

In Mu'Min

, the Supreme Court recently reiterated, id. at

1904, that a trial court "retains great latitude in deciding what9

questions should be asked on voir dire ." Specifically as it

applies to the instant case, the Court observed the following:

Voir dire examination serves the dual purposes of

enabling the court to select an i mpartial jury and

assisting counsel in exercising peremptory challenges.

In [ Aldridge v. United States

, 283 U.S. 308, 51 S. Ct.

470, 75 L.Ed. 105 4 (1931), and H am v. South Carolina

, 409 U.S. 524, 93 S. Ct. 848, 35 L.Ed.2d 46 (1 973),] we

held that the subject of potential racial bias must be

`covered' by the questioning of the t rial court in the

cours e of its examination of potential jurors, but we

were careful not to specify t he particulars by which

this could be done. We did not, for instance, require

questioning of individual jurors about facts or experiences that might have led to racial bias.

Id. at 1908. Where, as here, the court has inquired adequately

into the jurors' possible biases, that is, in a manner reasonably

calculated to identify any bias, the failure to require that the

prospe ctive jurors of a particular religion identify themselves

does not constitute an abuse of discretion nor render the trial

constitutionally suspect.

II.

The en banc court is in agreement that all but part II of

the panel opini on, and that portion of part II that holds that

the district court did not err in refusing to strike for cause

all black, Hispanic, and Jewish prospective jurors, should be

reinstated. For the foregoing reasons, we would affirm as well

on the question o f whether the conduct of voir dire deprived the

defendants of a fair and impartial jury.10

HIGGINBOTHAM, Circuit Judge, with whom POLITZ, Chief Judge, and

G ARWOOD, JOLLY, DAVIS, JONES, and DEMOSS, Circuit Judges, join,

would reverse the judgments of conviction for th e following

reasons:

This is the opinion that we think the court should have

adopted. Recent decisions by the Supreme Court have sharply

curtailed the trial lawyer's traditional re liance on intuition

and stereotypes in jury selection. Peremptory challenges are

often no longer per emptory. Rather, trial lawyers must offer

reasons. The Supreme Court has--almost with the same pen--

insisted on a criminal defendant's constitutional right to an

a dequate voir dire. The combination casts a pall over

increasingly limited voir dire of jurors in federal co urts.

These pract ices cannot continue. Both the prosecution and

defense are entitled to a full prob ing of the venire. The trial

judge must tailor the examination of the venire to the case,

unrelentingly insisting on an adequate examination. That did not

happen here--as we will explain.

I.

This is an appeal of convictions by a jury in Dallas, Texas

of charges of conspiring to deprive b lack, Hispanic, and Jewish

citizens of rights secured to them und er the Constitution and

laws of the United States, in v iolation of 18 U.S.C. § 241. A

panel of this court affirmed the convic tions, rejecting numerous

assertions of error. We granted rehearing en banc to consider

whether the district court erred in refusing to explore the issue11

of racial bias at voir dire and to inquire whether members of the

venire were Jewish. We find no merit in defendants' other points

of error, but we would find that the restricted voir dire

depri ved the defendants of their Sixth Amendment rights by

creating an unacceptable risk that the jury was biased, and

reverse.

II.

Defendants Christopher Greer, Daniel Wood, Sean Tarrant,

Michael Lawrence, and Jon Jordan were members of the Confederate

H ammerskins, a white supremacist group based in Garland, Texa s.

The government collected evidence that the defendants and other

Hammerskins conspired to deprive blacks, Hispanics and Jews of

their civil rights. This evidence indicated that the Hammerskins

tried to driv e blacks and Hispanics out of Robert E. Lee Park in

Dallas in the summer of 1988. On many occasions, they went to

the park in small groups and chased, beat, and assaulted the

blacks and Hispanics they found there. There was also evidence

that the defendants vandalized t he Temple Shalom and Jewish

C ommunity Center in Dallas by spray painting them with swastikas

and anti-Semitic graffiti, shoot i ng out windows, and breaking

doors. The police interrupted a later plan to vandalize Jewish

businesses in Dallas and Euless, Texas, in commemoration of the

fiftieth anniversary of Kristallnacht, a night of violence

against Jewish businesses in Nazi Germany.

A federal grand jury returned a three count indictment

c harging the defendants with (1) conspiracy to deprive black and8 Tarrant and Greer were not charged in count three.

12 Hispanic citizens of their rights under 42 U.S.C. § 2000a to use

a public park, in violation of 18 U.S.C. § 241; (2) conspiracy to

deprive Jewish citizens of their rights under 42 U.S.C. § 1982 to

hold property, in violation of 18 U.S.C. § 241; and (3) using a

firearm in the commission of the second offense, in violation of

18 U.S.C. § 924(c)(1) and (3). 8 More specifically, the grand jury

charged in count one that the defendants

. . . did willfully conspire and agree with each other

and other persons, known and unknown to the grand jury,

to injure, oppress, threaten and intimidate Bl ack and

Hispanic citizens of the United S tates in the free

exercise of the right secured to them by the

Const itution and laws of the United States to the full

and equal enjoyment of the services, facilities,

privileges, advantages, and accommodations of any place

of public

accommodation without discrimination on the ground of

race, color, or national origin.

It was part of the plan and purpose of this

conspiracy th at the defendants would join with others

in Robert E. Lee park to chase, assault, and beat black

and Hispanic persons in order to prevent them from

enjoying the use of Robert E. Lee park, which was a symbol to the defendants of white supremacy.

and in count two that the defendants

. . . did willfully conspire and agree with each other

and others to injure, oppress, threaten a nd intimidate

Jewish citizens of the United States in the free

exercise and enjoyment of the rig ht secured to them by

the Constitution and laws of the United States to hold

real and personal proper ty in the same manner as that

right is enjoyed by all citizens.

I t was part of the purpose and plan of the

conspiracy to vandalize Jewish properties in the Dallas

area and through such intimidation and threats of force

t o prevent Jewish persons from enjoying the holding of

such property.9 See Jury Manual, United States D istrict Court, Northern

District of Texas, Confidential Questionnaire. Question 11 is

"What is your religious preference and church affiliation, if

any?" Other questions include such matters as the prospective

jurors' educational background, military service, employment

13 The case, tried in Dallas, Texas, touched d eep emotions and

sparked considerable publicity. Recognizing that the case was

b eing called in a unique swirl of public debate and tension, the

trial judge deviated from the usual procedures. At pre-trial, he

explained to counsel how the jury would be selected. First, the

j udge would conduct the voir dire himself, as Rule 24 of the

Federal Rules of Criminal Procedure permits. Second, rather than

using the standard juror questi onnaire recommended for complex

cases in the Northern District of Texas, counsel were to submit

proposed juror questionnaires. Third, members of the venire

responding affirmatively to questions regarding their exposure to

pretrial publicity would be examined separately regarding its

effects on their ability to remain impartial.

Defense counsel submitted a proposed juror qu estionnaire as

the district court had directed. Among defense counsel's

proposed questions were "[w]hat is your religion?," "[d]o you

r egularly attend church, temple or other religious services?,"

and "[d]o you hold any offices in your church, temple or

r eligious organization?". The judge agreed to submit the latter

two questions but refused to include the question regarding the

jurors' religious affiliation, although this question is standard

on the juror questionnaires used in the state courts in Dallas

County and recommended for the federal courts. 9s tatus, hobbies, clubs, groups, union membership, the newspapers

or magazines they read, and their favorite TV programs.

14 Before voir dire, defense counsel moved to strike for cause

all black, Hispanic, and Jewish members of the venire, since they

were the intended victi ms of the crimes charged in the

indictment. The district court denied the motion, explaining

that he w ould not presume that all members of these groups would

consider themselves victims, or that they would be un able to

observe their oaths. Defense counsel responded that he hoped

part of the v oir dire would get into matters of racial bias,

given the fact that blacks, Hispanics, and Jews might serve as

fact finders in a case alleging a conspiracy to deprive black,

Hispanic, and Jewish citizens of their civil rights. The judge

said he would "take a look at it and see."

With the entire venire in the courtroom, the judge asked

them a number of questions as a group. He read the language of

the indictment, and asked the following three questions regarding

the issues involved in the case:

Should the evidence show that the Confederate

Hammerskins are a group which advocates white supremacy

and that the defendants are members of such a group . .

.could you give each of the Defendants the same presumption of innocence and the same benefit of

following only the evidence add uced in court and the

instructions or law that the Court gives you without

any kind of bias or prejudice or sympathy or fear?

Two prospective jurors said that they could not and were later

excused. The judge then told the venire:

The charges in the indictment

. . . [allege in]15

substance that the Defendants acted to in terfere with

the constitutional protected rights of other persons because of their race or color or national origin. The

Go vernment may put on evidence to demonstrate the

Defendants' racial beliefs. However, I instruct you

that the Defendants are no t on trial for their racial

bel iefs, whether you agree with those beliefs or don't

agree with those beliefs. Now is there anyone who

could not follow that instruction? (No response.)

You can use evidence of the beliefs of a Defendant to

help decide whether the Defendant may have acted or may

have been motivated to act in accordance with those

beliefs but you are here as jurors only t o judge

matters under the Charge an d not whether a Defendant

believed in such a way, had a belief. Whether he acted

is what you will be talking about. Anybody who can't

follow that sort of instruction? (No response)

He then returned the panel to the central jury room and conducted

bri ef, separate interviews, in open court of each individual

juror who had answered yes on the questionnaire as to whether

they had read or heard any press reports about the case. He

asked what they had heard or r ead and whether they could remain

impartial despite what they knew. Juror Washington answered that

she had read about the case and could not be fair. She was

excused. Two of the venire persons who had read or heard about

the case stated that the defendants had been referred to as

bigots or racists. Our colleagues who would affirm are mistaken

in their assertion that "several" venire persons referred to

defendants in such terms. None did. They are also mistaken in

their assertion that the district court did anything more than

ask about pretrial publicity and whether the venire person could

be fair in light of what they had seen or heard.

When this probe for the effects of pretrial publicity was

concluded, defense counsel again renewed their objection to10 Lawrence was acquitted on the firearm count.

16 seating victims of the alleged conspiracies on the jury. They

also renewed their request to ask the ve nire specific questions

about the subject matter of the case and whether that would

affect their impartiality. They reminded the judge that the

inflammatory nature of the evidence would make the case difficult

for members of these groups--in other words, that it might be

difficult for some members of these groups to remain impartial

when they heard evidence of the desecrated temple, o f violent

racial assaults, and their clients' virulent hatred of blacks,

Hispanics, and Jews. The judge replied that he had told the

venire everything about the subject matter of the case that he

was g oing to tell them. Defense counsel asked that the district

court at least inquire which jurors were Jewish, so that they

could exercise their peremptory strikes intelligently. The judge

refused. The jury was impaneled, the case was tried, and the

defendants were convi cted on all counts. 1 0 There was no inquiry

into the potential for racia l bias in the venire other than the

general questions indicating that the defendants were not on

trial for their racial beliefs. Nor did the defendants ever

learn whether any of the jurors who were selected were Jewish.

A panel of this court affirmed the convictions on appeal.

It affirmed the district court's refusal to probe the venire for

racial and ethnic biases, holding that the more general inquiries

sufficiently explored potential bia s. The panel also held that

refusing to ask i f any member of the venire was Jewish was17

correct, rejecting the contention that the question was c ritical

both standing alone and as the predic ate to any meaningful

interrogation. According to the panel, whether to go beyond its

more general questions to the venire was within the discretion of

the trial judge. Finally, it observed that a defendant could not

peremptorily strike a member of the venire because that person

was a Jew, reasoning that such a strike would have been

unconstitutional under the Supreme Court's recent jurisprudence

on race discrimination in jury selection.

III.

The Sixth Amendment guarantees defend ants the right to an

impartial jury. The questioning of prospective jurors at voir

dire is critical to preserving that right. "Without an adequate

voir dire, the trial judge's responsibility to remove prospective

jurors who will not be able impartially to follow the court's

instructions and evaluate the evi dence cannot be fulfilled."

Rosales-Lopez v. United States , 101 S. Ct. 1629, 1634 (1981)

(citing Connors v. United States

, 158 U.S. 408 (1895)). Voir

dire is also th e only means by which the defendant can develop

the information necessary to decide which jurors to c hallenge,

either peremptorily or for cause. "While challenges for cause

permit rejection of jurors on a narrowly spec ified, provable and

legally cognizable basis of partiality, the peremptory permits

rejection for a real or imagined partiality that is less easily

designated or demonstrable." Swain v. Alabama , 380 U.S. 202, 220

(1965). Both types of challenges are an essential part of the11 "The right to examine jurors on the voir dire as to the

existence of a disqualifying state of mind, has been upheld with

respect to other races than the black race, and in rel ation to

re ligious and other prejudices of a serious character."

Aldridge , 283 U.S. at 313.

18 process of ensuring trial by a fair and qualified jury.

In most contexts, we afford trial judges broad discretion in

d etermining how best to conduct a voir dire. The trial judge is

in the best position to evaluate the demeanor of prospective

jurors and to draw conclusions about their partiality. There are

special requirements, however, with respect to questioning

prospective j urors in a case involving racial or ethnic bias.

Rosales-Lopez

, 101 S. Ct. at 1635. When racial issues are

"inextricably bound up with the conduct of the trial," a voir

dire mus t include questioning specifically directed to racial

prejudice or bias to meet the con stitutional requirement that an

impartial jury be impaneled. Ristaino v. Ross , 424 U.S. 589, 597

(1976); Ham v. South Carolina

, 409 U.S. 524 (1973). Even when

racial issues do not pervade the case, the Court has exercised

its supervisory power over federal courts to require inquiry into

racial bias or prejudice in federal cases in which the defendant

is accused of committing violent crimes against a member of a

different racial or ethnic group. See Aldridge v. United States

,

283 U.S. 308, 310 (1931); Rosales-Lopez

, 101 S. Ct. at 1636;

Ristaino

, 424 U.S. at 597 n.9. In any case, "the exercise of

[ the trial court's] discretion, and the restriction upon

inquiries at the request of counsel, [are] subject to the

essential demands of fairness." Aldridge , 283 U.S. at 310. 1119

There are conflicting values at stake in questioning the

venire. Courts are understandably reluctant to create the

impression that the outcome of the judicial process turns on the

race of the participants in that process. See Ristaino , 424 U.S.

at 596 n.8. On the other hand, so long as racial and ethnic

prejudices are part of the human condition, we cannot will them

away by refusing to probe both for their presence and their reach

in a given case. Stoic pretense will not do. Seen from the eyes

of the trial lawyer, this social pretense can have no place in

jury selection. S ee Rosales-Lopez

, 101 S. Ct. at 1635 ("[A

criminal] trial is not the place in which to elevate appearance

over reality."). We say nothing new. Over sixty years ago, the

Court considered this conflict in Aldridge

, supra

, and firmly

rejected the argume nt that "it would be detrimental to the

administration of the law in the courts of the United States to

allow questions to ju rors as to racial or religious prejudices."

308 U.S. at 315. The Court concluded that "it would be far more

injurious to permit it to be thought that persons entertaining a

d isqualifying prejudice were allowed to serve as jurors and that

inquiries designed to elicit the fact of disqualifica tion were

barred." Id.

The issue in this case is whether the questions posed by the

district court were sufficient to protect the parties from the

risk that jurors with such disqualifying biases or prejudices

would be selected. A trial judge has substantial discretion in

conducting voir dire, but the Court has recognized that it is12 The Supreme Court held in Ham that the following three

questions were not a sufficient probe of race.

1. Have you formed or expressed any bias or prejudice

for or against him?

2. Are you consciou s of any bias or prejudice for or

against him?

3. Can you give the State and the defendant a fair

and impartial trial?

409 U.S. at 526 n.3.

20 usually best to allow the parties, typically the defendant in a

criminal case, to determine whether or not they would prefer to

have the inquiry into racial or ethnic prejudice pursued.

Rosales-Lopez

, 101 S. Ct. at 1636; United States v. Erwin

, 793

F.2d 656, 668 (5th Cir. 1986). Global questions to a venire

asking whether any member cannot follow his oath due to bias,

prejudice, or partiality are not adequate in a case where racial

animus is at issue. S ee Ham

, 409 U.S. at 526. 12 No particular

form or number of questions is required, but the questions must

be sufficient to focus the attention of the prospective jurors on

any racial prejudice they might harbor. Id. at 527.

Only recently the Court has emphasized the importance of

asking specific questions designed to unearth the disqualifying

views of prospective jurors. In M organ v. Illinois

, No. 91-5118

(June 15, 1992), the Court considered whether a state trial judge

committed reversible error when he refused to ask members of a

venire whether they would automatically vote to impose th e death

penalty if they found the defendant guilty. The trial court

r efused to ask this question, explaining that it had as ked

questions in a similar vein. It had explained the dictates of21

Illinois procedure in capital trials and asked whether the jurors

would be able to follow its instructions in these matters even if

they disagreed with them. It had asked the prospective jurors

whether they would automatically vote against the death penalty.

It had asked whether the members of the venire knew of any reason

that they could not be fair and impartial.

The Supreme Court reversed. It explained that although voir

dire is conducted under the supervision of the trial court, and a

great deal must be left t o its discretion, "part of the guaranty

of the defendant's right to an impartial jury is an adequate voir

dire to identify unqualified jurors."

__ U.S. at

__. Having

compared this situation to the necessary inquiry into racial bias

the Court had mandated in A ldridge and Ham

, Justice White

explained t hat general fairness and "follow the law" questions

were insufficient to detect those in t he venire who would

automatically vote for the death penalty. There is no "catechism

for voir dire," but since jurors unalterably in favor of or

opposed to the death penalty in every case could not perform

their duties in accordance with law, specific questions to elicit

these views from the members of the venire were necessary.

In short, h ow the trial judge gets at it is his call, but

get to it he must. Every experienced trial lawyer knows that the

ritualistic global inquiry to the entire panel by the trial judge

is only the beginning in sensitive cases. The questioning that

goes beyond this opening ritual is the essence of voir dire. It

is difficult for a venire person to confess to such bias and22

prejudice, when all the while he is likely denying it to himself.

But potential jurors are often asked sensitive and potentially

embarrassing q uestions. S ee, e.g.

, Burton v. Johnson

, 948 F.2d

115 0, 1157-59 (10th Cir. 1991) (familial abuse); s ee generally

United States v. Masat

, 896 F.2d 88, 95 (5th Cir. 1990). The

trial judge's questions must provide a reason able assurance that

racial bias or prejudice would be discovered if present. U nited

States v. Har relson , 754 F.2d 1153, 1161-62 (5th Cir. 1985);

United States v. Samiento-Rozo

, 676 F.2d 146, 148 (5th Cir.

1982). Furthermore, since voir dire is the basis for the

exercise of peremptory challenges , the questioning must give the

defendant an opportunity to make reasonably intelligent use of

his strikes. Knox v. Collins , 928 F.2d 657, 661 (5th Cir. 1991);

United States v. Ible

, 630 F.2d 389, 394-95 (5th Cir. 1980);

United States v. Moore

, 936 F.2d 1508, 1514 (7th Cir. 1991). We

evaluate the voir dire in this case with these principles in

mind.

The trial judge asked the members of the veni re some

questions conce rning the racial beliefs of the defendants, and

whether they could remain impartial despite those beliefs. He

did not ask about the racial biases or prejudices of members of

the venire, however. Moreover, the judge had ruled from the

outset that all inquiry reg arding religion was out of bounds.

Finally, the trial court asked no questions designed to elicit

from the prospective jurors whether they could remain impartial

even though they may have seen themselves as members of the class23

of victims charged in the indictment. In a trial in which white

supremacists were accused of crimes against blacks, Hispanics,

and Jews because they were black, Hispanic, and Jewish, the

court's refusal to explore potential racial bias on voir dire in

any meaningful way denied the defendants their constituti o nal

right to an adequate voir dire. Their convictions cannot stand.

The government sought to prove at trial that the defe ndants

deprived citizens of their federally secured rights b ecause they

were members of racial minorities

. Regardless of whether we

characterize all blacks, Hispanic s, and Jews as the intended

victims o f the defendants' crimes, or only those in Dallas

County, or only those who frequented the park, temple, and Jewish

Community Center, it is plain that the in dictment charged crimes

that threaten members of these particular g roups with violence.

The very nature of the charged offenses therefore had a special

significance for memb ers of the venire who were black, Hispanic,

o r Jewish because hatred of their races was at the core of the

prosecution's case. In these circumstances, defense counsel

needed to know which jurors were black, Hispanic, or Jewish, and

to probe their ability to be fair in spite of their relationship

to the cha rged offense. The stunning fact is that two venire

persons disqualified themselves in response to the glo bal

questions. This was no comforting evidence that the global

questions were adequate. It was a large warning of trouble. The

rapid successive questioning of venire persons (usually o ne to

three per page of the record) about pretrial publicity was no24

more than whe ther each could be fair in light of what they had

seen or read about the case. None were asked further questions

about their own views beyond the question can you be fair.

Thirteen "hesitated," to use the words of our colleagues, in

answeri ng that question. It is no answer that defendants

collectively had fifteen strikes. It is no answer because we are

left with approximately forty ven ire persons whose views are

untouched- -beyond the global questions and this jury was chosen

from that pool.

We do not assume that all members of the targeted groups

would be biased. But we cannot assume the contrary either. In

this kind of case, at lea st some members of the racial groups

target ed by the defendants' charged violence might be unable to

remain impassive and impartial when confronted as jurors with

evidence of these crimes. They were threatened by the conduct

charged in the indictment. We do not find fairness less

threatened be cause the potential bias of a prospective juror

might arise not out of any racial animosity toward white

defendants, but out of the threat to that juror as a member of

the victim class. When the Court considered the racial question

in Aldridge , it found it relevant not only that the defendant was

black, but also that his victim was white. 283 U.S. at 309. The

Court has continued to rely on the fact tha t the defendant and

the victim are members of different racial or ethnic groups in

assessing the need for inquiry into racial matters at voir dire.

Rosales-Lopez

, 101 S. Ct. at 1636; Turner v. M urray , 106 S. Ct.25

1683, 1689 (1986). Since the crime charged in this case not only

involved interracial violence, but viole nce p redicated on race,

inquiry into the potential for racial bias among the members of

the venire was crucial.

Instead of confronting these sensitive issues, as defense

counsel urged, the trial judge skated around them. The brief

questions he posed to the venire as a group amounted to little

more than asking them whether they could judge the defendants for

what the y did rather than what they thought. This was an

important issue as the trial judge commendabl y recognized, but

there was no inquiry into whether the jurors held racial biases

or saw themselves as victims of the charged offenses. This

critical area--the most critical area--was roped off from

beginning to end.

We intend no undue criticism of the trial court. This was

not an indifferent tr ial judge or a judge who failed to see that

he had a sensitive and difficult case to try. The district court

confronted the apparent tensi on between the recent emphasis upon

the rights of venire persons to be free of discrimination and the

rights of the parties to an impartial jury. It opted to protect

the venir e members to the point of refusing to ask if any person

adhered to the Jewish faith. This lacuna in an otherwise

adequate examination of the venire is explainable only in this

way, as evidenced by the quite different ways of handling the

distinct issues of the effects of pretrial publicity and the

possibility of prejudice and bias triggered by the highly26

emotional charges in this case.

The court's refusal to explore the issue of racial bias and

to allow defense counsel to discover which jurors were Jewish was

reversible error. The convictions of H am and Aldridge were

reversed when the Court found the voir dire in those cases

lacking. The lower courts have not hesitated to reverse

convictions when the particular circumstances of the ca se made

clear that th e voir dire was inadequate. S ee, e.g.

, U nited

States v. Bear Runner , 502 F.2d 908 (8th Cir. 1974) (voir dire on

racial bias in trial of American Indian was inadequate given the

racial tensions in South Dakota arising out of the events at

Wounded Knee); United States v. Evans

, 917 F.2d 800, 806 (4th

Cir. 1990) (voir dire on the credibility of law enforcement

officials was inadequate when the case would be a swearing match

between the defendants and a DEA agent). Courts have also found

reversible error when the trial judge refused to allow defense

counsel to discover critical facts about the members of the

venire. S ee, e.g.

, Aldridge

, 283 U.S. at 313 (citing with

approval a California court's reversal of convictions when

Mexican defen dants were not allowed to determine whether jurors

were members of the xenophobic Know Nothing party); United States

v. Ible

, 630 F.2d 389, 394-95 (5th Cir. 1980) (inquiry into

prospective juror s' religious beliefs about alcohol was required

on voir dire when this would be an issue at trial). The case for

reversal here is stronger than in any of these others, since the

court failed to explore the issue of racial bi as and refused to27

allow defense counsel to discover the race of Jewish members of

the venire when these matters were part and parcel of the charged

offenses.

Final ly, we note that information as to whether members of

the venire were Jewish was essential for the defendants to make

reasonably intell igent use of their peremptory challenges. In

recent years the Supreme Court has restricted the use of

peremptory strikes on the basis of race. See Batson v. Kentucky

,

476 U.S. 79 (1986); Edmonson v. Leesville Concrete Co.

, 111 S.

Ct. 2077 (1991). The Court explained in B ats on that the Equal

Protection Clause forbids the State to strike venire persons on

the assumption that they will be biased because of the race of

the defendant, or presumably the race of the victim. 476 U.S. at

97-98. This term it extended its holding to the exercise of

peremptories by criminal defendants. G eorgia v. McCollum , No.

91-372 (June 18, 1992 ). "Be it at the hands of the State or the

defense, if a court allows jurors to be excluded because of group

bias, it is a w illing participant in a scheme that could only

undermine the very foundation of our system of justice." __ U.S.

at __.

Any perceived tension between the Court's recent

juris prudence on race discrimination in jury selection and its

decisions on the adequacy of voir dire questioning is illusory.

The line of cases beginning with Aldridge

, and continuing with

Hamand Rosales-Lopez recognize that it is an unfortunate fact in

our society that violent crimes p erpetrated against members of28

other racial or ethnic groups are attended by a significant risk

that racial or ethnic prejudice will influence jury verdicts.

See Rosales-Lopez

, 45 1 U.S. at 192. B atson

, Edmonson

, and

McCollum

, on the other hand, stand for the proposition that

assumptio ns of juror partiality based on race have no place in a

court of law. Both lines of cases mandate that racist views be

eliminated from the jury selection process, both those of

potential jurors and counsel deciding which prospective jurors to

strike.

Thu s the Court's decision in M cCollum magnifies the

necessity for a probing inquiry into individual racial bias at

voir dire. As Justice Blackmun observed, "there is a distinction

between exercising a peremptory challenge to discriminate

invidiously against jurors on account of race and exercising a

peremptory challenge to remove an individual juro r who harbors

racial prejudice." __ U.S. __. Without adequate voir dire,

defendants cannot dissipate fears and concerns in sensitive cases

as to whether individual jurors harbor racial prejudices or

biases. Qualification to serve will not be developed, and the

parties cannot intelligently exercise their peremptory strikes if

the questioning of members of the venire is insufficient to

expose which among them would likely be biased.

In this case, the defendants were charged with crimes of

violence against b lacks, Hispanics, and Jews a s blacks,

Hispanics, and Jews

. In these circumstances, the defendants

needed to know which members of the venire were members of these29

gro ups in order to explore the potential for racial bias in any

meaningful sense. They could have exercised peremptory strikes

against jurors in these groups if further questioning indicated

that they could not remain impartial because of their

relationship to the charg ed offenses. Instead, the trial judge

denied defense counsel this information and refused to ask the

jurors questions about the issue of racial bias. A peremptory

challenge of a Jewish member of the venire could have been based

not on the assumption that Jews are uniformly biased because of

an affinity for other members of their race, but it could have

been based on a determination that individual Jewish members of

the venire may well have seen themselves as persons threatened by

the ch arged conduct. This is not the stereotypical attributive

stuff of an equal protection violation; rather it is a legitimate

reason for a peremptory strike. C ompare Hernandez v. New York

,

111 S. Ct. 1859 (1991) (upholding peremptory challenge s against

Hispanic jurors since they might not be able to defer to English

translation of testimony in Spanish).

Moreover, it is difficult for us to understand how

att ributing to a venire person a nearly universal human

characteristic SQ such as a tendency to hostility toward those who

threaten the individual because of his membership in a group SQ may

properly be described as stereotyping or discriminating against

that particular group (or individual). Stereotyping implies

attributing to the group (and individual member) characteristics

different from those that are otherwise common, and30

discriminating against implies acting on the basis of such

perceived differences. It would be stereotyping the group and

the individual to assume that it and he (because he was of that

group) did not have such common human characteristics.

We think the district court would have furthered rather than

frustrated the policy against race discrimination in jury

selection had it inquired into the i ssue of racial bias in this

case. Indeed, the Court's holding in H am was ground ed in the

idea that a principal purpose of the Fourteenth Amendment was to

prohibit the States from invidiously discriminating on the basis

of race. 409 U.S. at 526-27. The district court erred when it

created a "right" of a venire person to be free of even a neutral

question of religion affiliation.

If we are to eliminate peremptory challenges based on racial

stereotypes, as B atson

, E dmonson

, and McCollum mandate, we must

insist on a searching inquiry int o the i ndividual biases and

prejudices of members of the venire in civil rights cases

redolent with prejudice, bias, and an ger. This includes

investigation of the potential for racial bias on the part of

individual jurors. This able trial judge was led by perceived

signals of Batson to a stance overly protective of venire

persons. These crimes are despicable, but then defendants at the

time of voir dire were only charged with them. The moral

repugnance of the acts charged in this indictment only

accentuat es the demand for a thorough voir dire. The rights of

defendants were lost in the effort to protect the venire.31

There are no magic questions to be asked venire persons and

we require none today. The trial judge has discretion to control

t he voir dire, but there are limits. The federal trial judge is

a puissant figure but he is no more important than counsel. This

is a three-cornered play of prosecutor, judge, and defense

counsel-- three players

, not one. We would reverse for a new

trial.