A.K.A.: "The Mad Dog Killer"
Classification: Serial killer
Number of victims: 6
Date of murders: December 2, 1954 - March 28, 1955
Date of arrest: April 8, 1955
Date of birth: 1924
Victims profile: Mary Holland, 33 / Wesley Kerr, 29 / Wilhelmina Sailer, 47 / Farmer Goebel Duncan, their son, Raymond, and daughter-in-law, Elizabeth
Method of murder: Shooting
Location: Indiana/Kentucky, USA
Status: Sentenced to death. Commuted to life. Died in prison on November 9, 1983
Leslie "Mad Dog" Irvin (1924–1983) was an American serial killer whose killing spree in the early 1950s terrorized residents of southwestern Indiana and whose Supreme Court case set a precedent for ensuring a fair trial for defendants even in the wake of a great deal of pretrial publicity.
He was apprehended on April 8, 1955 after killing six people. He was eventually given the death penalty, but the sentence was overturned; he was instead given a life sentence and died in prison of lung cancer.
‘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 and 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.
The Mad Dog Killer
Irvin killing spree in 1950s had area in fear
The Tri-State was in fear during the Christmas season of 1954
Residents were buying handguns and doors were locked in Vanderburgh, Posey and Gibson counties in Indiana and across the Ohio River in Henderson County, Ky.
Before the rampage ran its course, Leslie Irvin shot and killed six people and left an intended seventh victim blind and crippled. He became the object of a nationwide manhunt after an escape from jail and a flight to San Francisco. At large for 22 days, he reportedly was seen everywhere in the country.
His trial was held in the Gibson County courthouse ended in a conviction and a sentence to the electric chair. After years of appeals, in 1961 the U.S. Supreme Court, would reverse his first conviction and death sentence and wrote, in a landmark decision, new rules guaranteeing a citizen's right to a trial free of "so huge a wave of public passion" created by media coverage. It was a classic case where a free press and a person's right to a fair trial can be in conflict.
Irvin had four dates with Indiana's electric chair and dodged them all, spending the major part of his life in the Indiana State Prison in Michigan City until his death on Nov. 9, 1983. Leslie Irvin, a 30-year-old burglar-murderer branded a "mad dog killer" by Gibson county prosecuting attorney Loren McGregor in his closing statement.
His first victim was Mrs. Mary Holland, a 33-year-old expectant mother. She and her husband, Charles "Doc" Holland, owned and operated a liquor store on Bellemeade Avenue. Mrs. Holland was found dead in the stores restroom the night of December 2, 1954, from a single shot in the head. Her hands were tied behind her back.
On December 23, Wesley Kerr, 29, was found shot to death in a U.S. 41 North gasoline station where he worked alone during the early morning hours. His body was in the restroom, hands tied behind his back, a single bullet wound in his head. Police found a spent slug, believed to be from a .38-caliber revolver. The station's cash register was open and empty, the night's receipts showing $68.11. Police surmised the same gunman had killed Mrs. Holland.
Rewards for the capture of this criminal began cropping up, with local newspapers offering $1,000. Almost three months passed and the area was returning to normal when the killer surfaced on March 21, 1955.
Wilhelmina Sailer, a 47-year-old housewife, was shot to death in her Posey County farm home near Mount Vernon, Ind. Her 7-year-old son, John Ray, discovered her when he returned by bus from school shortly after noon. Her husband arrived a few minutes later. Mrs. Sailer's hands were bound behind her with a single shot to the head.
A week later on March 28 a Henderson County, Ky., farmer Goebel Duncan and two other family members were killed, all by single shots through their heads. His wife, Mamie, survived a similar wound but was blinded and in critical condition. She awoke two days later but the trauma had erased her memory of the tragic event. She would later sit on the front row, everyday at the killer's trial in Gibson County.
The Duncan's 2-year-old granddaughter, Shirley Faye was spared. "I like kids," the killer later told police. Duncan's son, Raymond, was killed, as was a daughter-in-law, Elizabeth, married to another son. The Duncan women were discovered by a family member in adjoining rooms of the farmhouse; the bodies of the men were found in a muddy swamp four miles away.
The multiple murders of the Goebel Duncan family in Henderson County, Ky., provided police with their first solid clues in their efforts to discover the identity of the execution style killer terrorizing the Tri-State.
A neighbor of the Duncans, John Ralph Gaines told detectives he noticed Raymond and Goebel Duncan standing in Raymond's front yard talking with "one or two men" around 10 a.m. on March 28, 1955, the day of their deaths. He said he saw nothing suspicious and drove on. He did notice a dark vehicle with a battered left side and an Indiana license plate parked nearby. Three Sturgis, Ky., residents - Mrs. Dan Griffin, her grandson, Thomas Griffin, and his sister, Mrs. Virginia Watson, were on their way to Evansville when they were involved in a minor accident around 9:40 a.m. on the day of the Duncan deaths. Since they were in a hurry to get to Evansville, Mrs. Griffin said, they gave the driver $5 for repairs and drove on. She said the man turned around and followed them for about a mile and a half before turning off into the Duncan driveway.
The following day, T. Walters of Corydon, Kentucky., told police officers he passed the Duncan men near the spot on the Trigg-Turner Road where their bodies were found. This was around 10 a.m. Police now had a general description of the suspected killer and his car.
It till took a stroke of luck from a group of youngsters out on a lark to apprehend Leslie Irvin. Vanderburgh County Sheriff Frank McDonald Sr., a future Evansville mayor, had formed a Junior Sheriff Patrol, and sent word to them to report anything suspicious in their neighborhoods. There had been a series of burglaries in the St. Joseph area northwest of Evansville, but no arrests were made.
On March 30, two days after the Duncan murders, eight youths in the Vienna Road area decided to go out and look over the drilling of a new oil well. As they packed themselves into the car of Bill Williams, 18, they noticed another car parked near some woods about 150 yards away. They joked about it "being the murderer," one said later. They pulled near the car, now moving, and one of the youths leaned out a window and shouted: "Hey, we're investigators." The black vehicle sped away as one of the youths jotted down the license number, EL 351, of the Indiana plate.
On April 1, 1955, two youngsters were reading a story in an area paper that mentioned a vehicle similar to the one their group had seen in northwestern Vanderburgh County. Allen Peerman brought the clipping home and showed it to his mother. She promptly contacted the sheriff's office. A check of the license plate number the youths had recorded turned up under the name of Leslie Irvin, who was on parole from the Indiana State Prison in Michigan City after serving nine years for a burglary in Indianapolis.
Irvin was arrested on April 8 at the F.B. Culley power plant near Yankeetown in Warrick County. He worked there as a steam-pipe insulator, earning $1.90 per hour, a decent wage for that decade. Irvin offered no resistance. After questioning Irvin, he didn't reveal his identity until Monday, although the news media believed a suspect had been apprehended.
On April 15, police said Irvin confessed to 24 burglaries in four Southern Indiana counties, stealing guns believed to have been used in area killings. Irvin was charged with four murders and police he admitted to two more. A wallet found on Irvin was believed to be that of slaying victim Wesley Kerr. It contained $18.
Area policemen who had known Irvin since childhood recalled him setting fire to Bosse High School several times at the age 15 just for the thrill of it.
A grand jury in Henderson, Kentucky, convened on May 1 and indicted Irvin the following day on three counts of murder for the slayings of Goebel Duncan family. Kentucky sought his extradition but Indiana officials blocked it. On May 10, Vanderburgh Circuit Judge Ollie C. Reeves granted Irvin a change of venue to Gibson County, a move sought by public defender Robert Hayes "on account of local prejudice."
Officials decided he would be tried first for Kerr's slaying. After the trial, the electric chair was recommended for Irvin. The Leslie Irvin murder case had barely reached the Gibson County Courthouse in Princeton, Indiana, when defense attorneys asked that it be moved back to Evansville. The defense thought the larger Vanderburgh County population would more likely yield an impartial jury. On May 11, 1955, Gibson Circuit Judge A. Dale Eby overruled the motion.
The next day, Irvin made his first appearance in the Gibson County court, handcuffed, with a long, leash-like chain linking him to Gibson County Sheriff Earl Hollen, lending credence to his "Mad Dog" image. On May 18, Eby appointed Evansville attorney Ted Lockyear Jr. to defend Irvin. A day later, James D. Lopp Sr., also an Evansville lawyer, was appointed to the defense team. Proceedings resumed on November 15 with jury selection which proved to be a monumental and tedious task. It required three weeks with more than 355 prospects being interviewed.
Court reporter Lucille Ford estimated she filled 33 stenographic pads with 247,000 words in shorthand, including mumbles and nods of heads.
On December 7, an all-male jury of 12 was selected. Vanderburgh County Prosecutor Paul Wever, assisted by Howard Sandusky and Gibson County Prosecutor Loren McGregor, handled the state's case and opened the trial announcing they would seek the death penalty. After more than five weeks, the trial drew to a close. On December 20, 1955, the jury, after 90 minutes of deliberations, decided Irvin was guilty and recommended that he be executed in the electric chair.
Irvin's date with death was scheduled for June 12. Leslie Irvin, the chief suspect in the slayings of six people, was confined in what lawmen considered an escape-proof jail in Princeton, Ind., 25 miles north of Evansville. He was awaiting a transfer to the Indiana State Prison in Michigan City.
A few days away from making this trip, Irvin shocked his captors and the public by making his way through three locked doors and disappearing into a snowy night on January 21. His escape, like his crimes, arrest and trial, dominated the newspaper front page for days. Irvin later told Courier reporter Joe Aaron, who covered his crime spree and trial, that he used a trial-and-error method of making 50 keys to finally find two that would open his way to freedom. He said he made them from paperback novel covers, tin foil and glue.
Police posted 24-hour guards around the homes of Prosecutor Paul Wever, his assistant, Howard Sandusky, along with those of Evansville Chief of Detectives Dan Hudson and Irvin's mother, Alice.
Irvin was making his way to Las Vegas, Los Angeles and finally to San Francisco, when the chase ended on February 9. Wearing a snappy sport shirt and new suit, condemned murderer Leslie Irvin was arrested Feb. 9, 1956, in a downtown San Francisco pawnshop. Two officers who made the arrest admitted they had no idea who he was. Irvin had traveled more than 2,000 miles in 20 days, often one step ahead of police.
When arrested, he told San Francisco police; "I'm Leslie Irvin and I'm wanted in Indiana for six murders. I've been convicted of one and I'm not guilty of any." On Friday night, February 11, Gibson County Sheriff Earl Hollen and Indiana State Police Lt. Willard Walls and Detective Sgt. W.W. Cornett arrived in San Francisco to return Irvin to Indiana, unaware Irvin planned to fight extradition.
Irvin was arraigned in San Francisco Municipal Court on a fugitive charge and was awarded a continuance until the following Tuesday, giving him time to talk to his attorneys, Ted Lockyear Jr. and James Lopp Sr. He learned their motion for a new trial had been delayed.
Two attempts to fly Irvin to Indiana were aborted when newsmen and women discovered their flight times and swarmed the San Francisco airport to cover his departure. Plans for an air return were canceled and Irvin was scheduled to leave by train to Chicago on Feb. 15. Aaron made the 2,000-mile ride home with Irvin, who received an ego boost when learning newsmen had nicknamed the conveyance the "Mad Dog Train." Irvin was handcuffed, with Hollen holding a chain leash attached to the cuffs, even during meals.
After a three-hour layover in Ogden, Utah, the entourage boarded the City of Los Angeles for their final leg to Chicago. A three-car police convoy awaited Irvin there and quickly whisked him away to the Indiana State Prison in Michigan City. Attorneys Ted Lockyear Jr. and James Lopp Sr. took their case through a maze of courts, and in mid-August 1956 the Indiana Supreme Court granted Leslie Irvin a stay of execution until December 1, 1956.
Irvin's attorneys argued the trial was held in an atmosphere of bias and prejudice against their client, and by June 1 had filed a 5,000-page trial transcript with the state Supreme Court. The high court eventually extended Irvin's execution to March 29, 1957, then to July 9, 1957.
On July 9, 1957, the U.S. Circuit Court of Appeals granted Irvin an indefinite stay of execution, five hours before his scheduled trip to the death chamber. His case wound its way through the federal system, where courts were asked to consider whether the guilty verdict was influenced by a forced confession, police abuse and a jury prejudiced by inflammatory media coverage. The U.S. Supreme Court finally accepted the case and heard oral arguments on November 9, 1960.
On June 5, 1961, the Supreme Court handed down the historic decision and ordered a new trial. It marked the first time the high court had overturned a conviction because of pretrial publicity. The decision altered the way newspapers, radio and television covered criminal cases, and the way authorities released information. The case would be cited in journalism law classes all over the country.
Supreme Court Justice Tom Clark wrote in his opinion: "With his life at stake, it is not requiring too much that petitioner (Irvin) be tried in an atmosphere undisturbed by so huge a wave of public passion and by a jury in which two-thirds of the members admit, before hearing any testimony, to possessing a belief in his guilt."
A second trial was conducted in Sullivan, Indiana, Lockyear and Lopp were excused from further duties and Evansville attorney Marion Rice agreed to defend Irvin, assisted by his law partner, Jack VanStone, and George Taylor of Sullivan. Vanderburgh County Prosecutor O.H. Roberts Jr.; Deputy Attorney General Richard Givan, who later would become chief justice of the Indiana Supreme Court; and Sullivan County Prosecutor Paul R. Whitlock handled the state's case. Sullivan Circuit Judge Joe Lowdermilk presided. The trial was conducted in a more subdued atmosphere.
On June 13, 1962, the seven-man, five-woman jury convicted Irvin of first-degree murder in the slaying of Wesley Kerr after deliberating for five hours and 15 minutes. Irvin received a life sentence, which he served as a model prisoner in the Indiana State Prison in Michigan City.
During his time in prison he became a talented leather craftsman, fashioning billfolds, purses, belts and other items that were sold in the prison store. He remained an avid sports fan until his death at the age of 59 on November 9, 1983 from lung cancer.
June 25, 2008
The second triple homicide in Henderson County occurred March 28, 1955, when Leslie Irvin murdered three members of the Goebel Duncan family near Geneva. Duncan's wife, Mamie, survived being shot through the temple but lost her sight along with all memory of the incident.
Irvin shot and killed six people in four separate incidents between Dec. 2, 1954, and March 28, 1955. The last three were the Duncan family at Geneva. Along with Goebel and Mamie Duncan, the victims were their son, Raymond, and daughter-in-law, Elizabeth. The family had been headed to the hospital to visit Raymond's wife, Mary Alice, who had given birth only 15 hours earlier.
All were shot in the head. The two men were found in a slough, while the women were found in the farmhouse.
A heart-breaking scene at the house was found by sheriff's deputies and Gleaner reporter Cecil Williams, who found Elizabeth Duncan's two-year-old daughter sitting on the bed with her mother's corpse. "Mommy is sleeping," she said.
A massive manhunt followed, and Irvin was captured 11 days later near Evansville. He confessed to the killings, as well as three murders in Indiana, but was never tried here. He died in 1983 of lung cancer while serving a life sentence in an Indiana prison.
U.S. Supreme Court
Irvin v. Dowd
366 U.S. 717
Argued November 9, 1960
Decided June 5, 1961
CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
Petitioner was tried in an Indiana State Court, convicted of murder, and sentenced to death. Six murders had been committed in the vicinity of Evansville, Ind., and they were extensively covered by news media in the locality, which aroused great excitement and indignation throughout Vanderburgh County, where Evansville is located, and adjoining Gibson County.
Shortly after petitioner was arrested, the Prosecutor of Vanderburgh County and Evansville police officials issued press releases, which were intensively publicized, stating that petitioner had confessed to the six murders. When petitioner was indicted in Vanderburgh County, counsel appointed to defend him immediately sought a change of venue, 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 petitioner, his counsel sought a change of venue from that County to a county sufficiently removed from the Evansville locality to permit an unprejudiced and fair trial; but this was denied.
At the trial, the jury panel consisted of 430 persons; 268 of these were excused for cause as having fixed opinions as to the guilt of petitioner, and 8 of the 12 who finally served on the jury admitted that they thought petitioner was guilty, but each indicated that, notwithstanding his opinion, he could render an impartial verdict. After petitioner's conviction had been sustained by the State Supreme Court, he applied to a Federal District Court for a writ of habeas corpus, which was denied.
Held: Petitioner was not accorded a fair and impartial trial, to which he was entitled under the Due Process Clause of the Fourteenth Amendment; his conviction is void; the judgment denying habeas corpus is vacated, and the case is remanded to the District Court for further proceedings affording the State a reasonable time to retry petitioner. Pp. 366 U. S. 718-729.
(a) Since the State Supreme Court has held that, where an attempt has been made to secure an impartial jury by a change in venue, but it appears that such a jury could not be obtained in the
Page 366 U. S. 718
county to which the venue was changed, it is the duty of the court to grant a second change of venue in order to afford the accused a trial by an impartial jury, a state statute purporting to permit only one change of venue is not, on its face, subject to attack on due process grounds. Pp. 366 U. S. 720-721.
(b) Failure of a State to accord a fair hearing to one accused of a crime violates the Due Process Clause of the Fourteenth Amendment, and a trial by jury is not fair unless the jury is impartial. Pp. 366 U. S. 721-722.
(c) In the circumstances of this case, it was the duty of the Federal Court of Appeals to evaluate independently the voir dire testimony of the impaneled jurors. Pp. 366 U. S. 722-723.
(d) On the record in this case, it cannot be said that petitioner was accorded a fair trial by an impartial jury. Pp. 366 U. S. 723-728.
(e) Petitioner is entitled to be freed from detention and sentence of death pursuant to the void judgment; but he is still subject to custody under the indictment; he may be retried under this or another indictment, and the District Court should allow the State a reasonable time in which to retry him. Pp. 366 U. S. 728-729.
271 F.2d 552, judgment vacated and cause remanded.
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. Petitioner immediately
Page 366 U. S. 719
sought a writ of habeas corpus, under 28 U.S.C. § 2241, [Footnote 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, and remanded to the Court of Appeals for decision on the merits or remand to the District Court for reconsideration. 359 U. S. 394. The Court of Appeals retained jurisdiction, and decided the claim adversely to petitioner. 271 F.2d 552. We granted certiorari, 361 U.S. 959.
As stated in the former opinion, 359 U.S. at 359 U. S. 396-397:
"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 and 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
Page 366 U. S. 720
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. [Footnote 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
Page 366 U. S. 721
Court of Appeals upheld its validity. However, in the light of 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 contravene [the statute]. . . ."
239 Ind. at 642, 159 N.E.2d at 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.
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 has 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. New York, 332 U. S. 261; Palko v. Connecticut, 302 U. S. 319, every State has constitutionally provided trial by
Page 366 U. S. 722
jury. See Columbia University Legislative Drafting Research Fund, Index Digest of State Constitutions, 578-579 (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; 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, 349 U. S. 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 (1807). [Footnote 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, 98 U. S. 155.
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.
Page 366 U. S. 723
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. Illinois, 123 U. S. 131; Holt v. United States, 218 U. S. 245; Reynolds v. United States, supra.
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. California, 314 U. S. 219, 314 U. S. 236. 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 p. 98 U. S. 156.
"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 been formed, he would have been incompetent even though it had not been expressed."
At p. 98 U. S. 157. As was stated in Brown v. Allen, 344 U. S. 443, 344 U. S. 507, the
"so-called 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 366 U. S. 724
98 U. S. 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. Illinois, supra; Hopt v. Utah, 120 U. S. 430. 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. [Footnote 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, 299 U. S. 145-146:
"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
Page 366 U. S. 725
procedure is not chained to any ancient and artificial formula."
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 community -- so 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
Page 366 U. S. 726
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."
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 murders -- three in one family -- have 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
Page 366 U. S. 727
described as "a pattern of deep and bitter prejudice against the former pipefitter." Spectator comments, as printed by the newspapers, were "my mind is made up"; "I think he is guilty", and "he should be hanged."
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 guilt -- ranging 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 not want him on a jury.
Here, the "pattern of deep and bitter prejudice" shown to be present throughout the community, cf. Stroble v. California, 343 U. S. 181, 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, 199 F.2d 107. Where one's life is at stake -- and accounting for the frailties
Page 366 U. S. 728
of human nature -- we 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 the 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. California, 343 U. S. 181; Shepherd v. Florida, 341 U. S. 50 (concurring opinion); Moore v. Dempsey, 261 U. S. 86.
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
Page 366 U. S. 729
matter as law and justice require." 28 U.S.C. § 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, 264 U. S. 46. Therefore, on remand, the District Court should enter such orders as are appropriate and consistent with this opinion, cf. Grandsinger v. Bovey, 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; Dowd v. Cook, 340 U. S. 206; Tod v. Waldman, 266 U. S. 113.
Vacated and remanded.
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., § 9-1305, 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  change of venue from the judge and only one  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., § 9-1504
MR. JUSTICE FRANKFURTER, concurring.
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 trial by newspapers, instead of trial in court before a jury.
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
Page 366 U. S. 730
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.
Not a Term passes without this Court's 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 collaboration -- exerting 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 Maryland v. Baltimore Radio Show, 338 U. S. 912, 338 U. S. 915. 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, ante, p. 716; see, e.g., Marshall v. United States, 360 U. S. 310. See also Stroble v. California, 343 U. S. 181, 343 U. S. 198 (dissenting opinion); Shepherd v. Florida, 341 U. S. 50 (concurring opinion). This Court has not yet decided that the fair administration of criminal justice must be subordinated to another safeguard of our constitutional system -- freedom 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.