APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA. D.C. Crim. No. 69-413.
Gibbons, Rosenn, and Weis, Circuit Judges. Gibbons, Circuit Judge, concurring and dissenting.
Appellant Robinson was indicted on two counts of failing to perform duties required by the Selective Service Act of 1967, 50 App. U.S.C. § 451 et seq. The first count alleges that he failed to keep his local board informed as to his current address; the second charges him with refusing to report for induction on November 6, 1968 and "continuing from day to day thereafter . . ."
A jury returned verdicts of guilty on both counts and post trial motions for judgment of acquittal and for a new trial were denied.
On appeal Robinson contends:
1. With respect to both counts, that a new trial is required because the trial court refused to permit voir dire examination of the jury panel as to racial prejudice; and
2. As to the second count:
a. a judgment of acquittal was required, or
b. that a new trial is required because of errors in the charge to the jury.
THE VOIR DIRE EXAMINATION
Robinson is black as were some of the key witnesses, both for prosecution and defense. Defense counsel asked that the jury panel be asked:
"Would you take into consideration a witness's race in determining his credibility?"
The trial judge denied the request, saying:
"You have little faith in our system. I'm not impressed."*fn1
Aldridge v. United States, 283 U.S. 308, 75 L. Ed. 1054, 51 S. Ct. 470 (1931), held that in trials in the federal courts upon a timely request, the judge must permit voir dire examination as to possible racial prejudice. While many would agree with the reaction of the distinguished trial judge that such interrogation in itself is a reflection upon the integrity of the jury panel, nevertheless the Supreme Court has taken a contrary view. Thus, in Aldridge, supra, Chief Justice Hughes wrote:
"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." (pages 314-15)
In United States v. Bamberger, 456 F.2d 1119 (3rd Cir. 1972), this court recognized the Aldridge rule, although leaving to the trial judge wide discretion in determining what particular questions should be asked. No error was found in that case when defense counsel was permitted to ask questions dealing with racial prejudice.*fn2 Any doubts as to the mandatory requirements of the Aldridge rule were dispelled by the case of Ham v. South Carolina, 409 U.S. 524, 35 L. Ed. 2d 46, 93 S. Ct. 848 (1973), decided after the opinion of the district court had been handed down. The Supreme Court emphasized that the right to have the judge make inquiry on voir dire as to racial prejudice was one of constitutional dimensions. In that case general questions dealing with bias or prejudice not specifically referring to race were held inadequate to cure the defect, and reversal was ordered.
The government contends that Aldridge and Ham are not controlling in this case because the specific question suggested by counsel dealt with credibility of witnesses based upon their race rather than with prejudice against the defendant as such based upon his race. Aside from the fact that the district court's reaction to the question effectively put an end to any exploration of the area of racial prejudice, we think any such fine distinction between prejudice against witnesses based upon race and prejudice against the defendant based upon race would be pettifogging.
Both sides in a jury trial are entitled to have the credibility of witnesses judged by relevant standards. Both sides -- but especially defendants -- are entitled to remove for cause prospective jurors who would judge the credibility of witnesses by improper standards. Both sides should be free to exercise peremptory challenges in the light of their informed judgment as to the likely receptivity of the jurors to the ...