GROPPI v. WISCONSIN
No. 26.
Argued December 7, 1970—
Decided January 25, 1971
Stewart, J., delivered the opinion of the Court, in which Douglas, HarlaN, BrennaN, White, and Marshall, JJ., joined. Black-mun, J., filed a concurring opinion, in Which Burger, C. J., joined, post, p. 512. Black, J., filed a dissenting opinion, post, p. 515.
Elizabeth B. Dubois argued the causé for appellant. With her on the briefs were Jack - Greenberg, Michael Meltsner, Anthony G. Amsterdam, Thomas M. Jacobson, and Robert E. Sutton.
Sverre O. Tinglum, Assistant Attorney General of Wisconsin, argued the cause for appellee. With him on the brief wére Robert W. Warren, Attorney General, and Roy G. Mita, Assistant Attorney General.
Mr. Justice Stewart
delivered .the opinion of the Court.
On. August 31, 1967, during a period of civil disturbances in Milwaukee, Wisconsin, the appellant,- a Roman Catholic priest, was arrested in that city on a charge of resisting arrest. Under Wisconsin law that offense is a misdemeanor, punishable by a fine of not more than $500 or imprisonment in the county jail for not more than one year, or both. After a senes of continuances, the appellant was brought to trial before a jury in a Milwaukee County court on February 8, 1968. The first morning of the trial was occupied with qualifying the jurors, during the course of which the appellant exhausted all of his peremptory challenges. The trial then proceeded, and at its conclusion the jury convicted the appellant as charged.
Prior to the trial, counsel for the appellant filed a motion for a change of venue from Milwaukee County “to a county where community prejudice against this defendant does not exist and where an impartial jury trial can be had.” The motion asked the court to take judicial notice of “the massive coverage by all news media in this community of the activities of this defendant,” or, in the alternative, that “the defendant be permitted to offer proof of the nature and extent thereof, its effect upon this community and on the right of defendant to an impartial jury trial.” The trial judge denied the motion, making clear that his ruling was based exclusively on his view that Wisconsin law did not permit a change of venue in misdemeanor cases.
On appeal, the Supreme Court of Wisconsin affirmed the conviction. 41 W,is. 2d 312, 164 N. W. 2d 266. It held that the trial judge had been correct in his understanding that a Wisconsin statute foreclosed thé possibility of a change of venue in a misdemeanor prosecution. It further held that this state law was constitutionally valid, pointing out that “it would be extremely unusual for a community as a whole to prejudge the guilt of any person charged with a misdemeanor.” 41 Wis. 2d, at 317, 164 N. W. 2d, at 268. The court also noted that a defendant in a Wisconsin misdemeanor prosecution has a right to ask for continuances and to challenge prospective jurors on voir dire, and if “these measures are still not sufficient to provide an impartial jury, the verdict can be set aside after trial based on the denial of a fair and impartial trial.” 41 Wis. 2d, at 321, 164 N. W. 2d, at 270. Two members of the court dissented, helieving that the state statute did not absolutely forbid a change of venue in a misdemeanor prosecution, and that if the statute did contain such a prohibition it was constitutionally invalid. 41 Wis. 2d, at 325, 164 N. W. 2d, at 272.
This appeal followed, and we noted probable jurisdiction. 398 U. S. 957. As the case reaches us we must, of course, accept the construction that the Supremq Court of Wisconsin has put upon the state statute. E. g., Kingsley Pictures Corp. v. Regents, 360 U. S. 684, 688. The question before us, therefore, goes to the constitutionality of a state law that categorically prevents a change of venue for a criminal jury trial, regardless of the extent of local prejudice against the defendant, on the sole ground that the charge against him is labeled a misdemeanor. We hold that this question was answered correctly by the dissenting justices in' the Supreme Court of Wisconsin.
The issue in this case is not whether the Fourteenth Amendment requires a State to accord a jury trial to- a defendant on a charge such as the appellant faeed here. The issue concerns, rather, the nature of the jury trial that the Fourteenth Amendment commands, when trial, by jury is what the State has purported to accord. We had occasion to consider this precise question almost 10 years ago in Irvin v. Dowd, 366 U. S. 717. There we found that an Indiana conviction could not constitutionally stand because the jury had been infected by community prejudice before the trial had commenced. What the Court said in that case is wholly relevant here:
“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; Tumey v. Ohio, 273 U. S. 510. ‘A fair trial' in a fair tribunal is a basic requirement of due process.’ In re Murchison, 349 U. S. 133, 136. 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. 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 . . . .” 366 U. S., at 722. .
There are many ways- to try to assure the kind of impartial jury that the Fourteenth Amendment guarantees. In Sheppard v. Maxwell, 384 U. S. 333, the Court enumerated many of the procedures available, particularly in the context of a jury threatened by the poisonous influence of prejudicial publicity during the course of the trial itself. 384 U. S., at 357-363. Here we are concerned with the methods available to assure an impartial ■ jury in a situation where, because of prejudicial publicity or for some other reason, the community from which the jury is to be drawn may already be permeated with hostility toward the defendant. The problem is an ancient one. Mr. Justice Holmes stated no more than a commonplace when, two generations ago, he noted that “[a]ny judge who has sat with juries knows that in spite of forms they are extremely likely to be impregnated by the environing atmosphere.” Frank v. Mangum, 237 U. S. 309, 349 (dissenting opinion).
One way to try to meet the problem is to grant a continuance of the trial in the hope that in the course of time, the fires of prejudice will cool. But this hope may not be realized, and continuances, particularly if they are repeated, work against the important values implicit in the constitutional guarantee of a. speedy trial. Another way is to provide a method of jury qualification that will promote, through the exercise of challenges to the ve-nire — peremptory and for cause — the exclusion of prospective jurors infected with the prejudice of the community from which they come. But this protection, as Irvin v. Dowd, supra, shows, is not always adequate to effectuate the constitutional guarantee.
Oh at least one occasion this Court has explicitly held that only a change of venue was constitutionally , sufficient to assure the kind of impartial jury that is guaranteed by the Fourteenth Amendment. That was. in the case of Rideau v. Louisiana, 373 U. S. 723. We held that, “it was a denial of due process, of law to refuse the request for a change of venue, after the people óf Calcasieu Parish had been exposed repeatedly and in depth” to the prejudicial pretrial publicity there involved. 373 U. S., at 726. Ridedu was not decided until 1963, but its message echoes more than 200 years of human experience in the endless quest for the fair administration of criminal justice.
It is doubtless true, as the Supreme Court of Wisconsin said, that community prejudice is not often' aroused against a man accused only of a misdemeanor. But under the Constitution a defendant must be given an opportunity to show that a change of venue is required in his case. The Wisconsin statute wholly denied that opportunity to the appellant.
Accordingly, the judgment is vacated, and the case is remanded to the Supreme Court of Wisconsin for further proceedings not inconsistent with this opinion.
It is so ordered.
“Whoever knowingly resists or obstructs an officer while such officer is doing any act in his official capacity and with lawful authority, may be fined not more than $500 or imprisoned not more than one year in countv i,.il or both.” Wis. Stat. § 946.41 (1) (1967).
Apparently no transcript was made of the voir dire proceedings.
The court: “So, therefore, the change of venue as asked for in_the motion for a change of venue will be denied; it not being provided for in the Wisconsin Statutes. . . . No, I’m denying the motion for a change of venue because this is a misdemeanor case and not a felony. And the Wisconsin Statute does not provide for a change of venue in a misdemeanor matter.”
The relevant statute in effect at the time of the appellant’s trial was Wis. Stat. §956.03 (3) (1967), which provided:
“If a defendant who is charged with a felony files his affidavit that an impartial trial cannot be had in the county, the court may change the venue of the action to any county where an impartial trial can be had. Only one change may be granted under this subsection.”
Wis. Stat. § 971.22, effective July 1) 1970, now permits a change of venue in all criminal cases. See Wis. Laws 1969, c. 255, p. 650.
We reject the suggestion that the appellant is not in a position to attack the statute because he made an insufficient showing of community prejudice. His motion for a change of venue explicitly asked in the alternative that he be permitted to “offer proof” of the nature and extent of the local prejudice against him. His motion was denied in its entirety, thus foreclosing any opportunity to produce evidence of a prejudiced community. The trial court’s ruling was, of course, wholly consistent with its view that it was powerless to grant a change of venue under Wisconsin law, regardless of what showing of local prejudice might have been made.
Accord, Pamplin v. Mason, 364 F. 2d 1 (CA5); State ex rel. Ricco v. Biggs, 198 Ore. 413, 255 P. 2d 1055.
That question was answered affirmatively in Baldwin v. New York, 399 U. S. 66.
Wisconsin grants a. right to trial by jury in all misdemeanor cases. See State ex rel. Murphy v. Voss, 34 Wis. 2d 501, 505, 149 N. W. 2d 595, 597; State ex rel. Sauk County District Attorney v. Gollmar, 32 Wis. 2d 406, 410, 1145 N, W. 2d 670, 672.
The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right ttf . . . an impartial jury . . . .” (Emphasis added.)
See Klopfer v. North Carolina, 386 U. S. 213; Smith v. Hooey, 393 U. S. 374; Dickey v. Florida, 398. U. S. 30; id., at 39 (BrenNan, J., concurring). .
See generally Broeder, Voir Dire Examinations: An Empirical Study, 38 S. Cal. L. RSv. 503 (1965).
See Rex v. Harris, 3 Burr. 1330, 1333, 97 Eng. Rep. 858, 859 (K. B. 1762): “Notwithstanding the locality of some sorts of actions, or of informations for misdemeanors, if the matter can not be tried at all, or can not be fairly and impartially, tried in the proper county, it shall be tried in the next adjoining county.” (Lord Mansfield.)
See also Crocker v. Justices of the Superior Court, 208 Mass. 162, 178-179, 94 N. E. 369, 376-377 (1911):
“This review demonstrates that the great .weight of authority ■ supports .the view that courts, which by statute or .custom, possess a jurisdiction like that of the Kings Bench before our revolution, have the right to change the place of trial, when justice requires it, to a county; where an impartial trial may be had.
•“. . . There can be no justice in a trial by jurors inflamed by passion, warped by prejudice, awed by violence, menaced by the virulence of public opinion or manifestly biased by any influences operating either openly or insidiously to such an extent as to poison the judgment and prevent the freedom of fair action. Justice cannot be assured in a trial where other considerations enter the minds of those who are to decide than the single desire to ascertain and •declare the truth according to the law and the evidence. A court of general jurisdiction ought not to be left powerless under the law to do within reason all that the conditions of society and human nature permit to provide an unprejudiced panel for a jury trial.”
See also, e. g., State v. Albee, 61 N. H. 423, 60 Am. Rep. 325 (1881).
Whether corrective relief can be afforded the appellant short of a new trial will be for the Wisconsin courts to determine in the first instance. Cf. Coleman v. Alabama, 399 U. S. 1, 10-11.
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