U.S. v. Greer ( 1992 )


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  •               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, GARWOOD, 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.       See United
    
    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 opinion.        As relates to the
    
    issues in part II, the court unanimously holds that the district
    
    court did not err in refusing to strike for cause all blacks,
    
    Hispanics, and Jewish jurors.     Otherwise, as a consequence of an
    equally 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 requested 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   all   black,   Hispanic,    and    Jewish
    
    citizens for cause from the panel of prospective jurors because
    
    they were intended victims of the alleged offenses; (2) failing
    
    to examine potential jurors regarding racial and ethnic bias so
    
    that       defendants        could   exercise   their    peremptory   challenges
    
    intelligently; and (3) refusing to require Jewish prospective
    
    jurors to identify themselves as such.              We disagree with each of
    
          1
            "An affirmance by an equally divided court . . . has no precedential
    value, see generally Hertz v. Woodman, 
    218 U.S. 205
    , 213-14, 
    30 S. Ct. 621
    ,
    622-23, 
    54 L. Ed. 101
     (1910) . . . ." Lacy v. General Fin. 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
    these   contentions    and   conclude      that   the   defendants   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, Hispanic, 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 exclude for cause an otherwise
    
    qualified class of jurors.         See 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 defendant was an alleged white
    
    supremacist.      Person v. Miller, 
    854 F.2d 656
    , 665 (4th Cir.
    
    1988), cert. denied, 
    489 U.S. 1011
     (1989).               Instead, the court
    
    
          3
            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 indictment, we are not prepared to hold that
    such a universal victim status constitutionally mandates the exclusion of all
    potential jurors in those categories.     Instead, the pertinent question is
    whether the respective members of such a universally-described victim class
    harbor any bias.   That determination, in turn, is a prime function of voir
    dire examination.
    
                                          3
    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.                     Rosales-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 impartiality and will not interfere with such
    
    decisions absent a clear abuse of discretion."                       United States v.
    
    Hinojosa, 
    958 F.2d 624
    , 631 (5th Cir.                 1992) (citations omitted).
    
          The test for determining whether a court has adequately
    
    questioned    prospective       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, 
    676 F.2d 146
    , 148 (5th Cir. 1982).                                 A
    
    court    abuses    its     discretion       when    the    scope    of     voir    dire     is
    
    inadequate to discover bias and deprives 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).
    
          4
            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 "direct 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
    Failure to question individual jurors about facts or experiences
    
    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 inquired 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 the Saimiento-Rozo
    
    standard was satisfied.
    
             First, each prospective juror filled out a questionnaire
    
    asking   for     information     regarding,       inter        alia,    his    or   her
    
    occupation; 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
    
    religious      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
    
    had   "heard    or   read"   anything     about       the   vandalism     of     Jewish
    
    properties, the 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;
    
    
                                              5
    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 members of such a group SQ
           and I say should because you don't have any evidence
           before you at this time SQ could you give each of the
           Defendants the same presumption of innocence and the
           same benefit of following only the evidence adduced in
           court and the instructions or law that the Court gives
           you without any kind of bias or prejudice or sympathy
           or fear? [Emphasis added.]
    
           Two    jurors   answered     yes   and       eventually   were   struck   for
    
    cause.       The court then asked,
    
                The charges in the indictment, 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 substance?] that the Defendants acted to interfere
           with the constitutional protected rights of other
           persons because of their race or color or national
           origin.    The Government may put on 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 beliefs of a Defendant to help decide
           whether the Defendant 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
         [no response]
    
         Finally, the court briefly questioned each of the fifty-
    
    three    prospective   jurors     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 could be impartial and
    
    could reach a decision based only upon the evidence in the case.
    
         The individual questioning elicited admissions of bias.                  At
    
    least thirteen persons expressed 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,"    and   "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 questions were asked to ferret out any bias,
    
    not whether specific questions were asked.              The voir dire and
    
          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 individual questioning was not limited to "each
    individual juror who had answered yes on the questionnaire as to whether they
    had read or heard any press reports about the case."
    
                                          7
    jury questionnaire 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 religion 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      challenges]."        Mu'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 what
    
    
    
          7
            We do not address whether such a question would be constitutionally
    permissible.   Citing, inter alia, Edmonson v. Leesville Concrete Co., 
    111 S. Ct. 2077
    , and Batson v. Kentucky, 
    476 U.S. 79
     (1986), the panel, 939 F.2d
    at 1085, opined that the question regarding Jewish identification was consti-
    tutionally proscribed. Confining ourselves to whether the questions that were
    asked adequately protected the defendants (and thus to the question of whether
    the 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 Georgia 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 Batson 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-re-
    lated crimes." Id.
          In McCollum the Court also recognized "that denying a person participa-
    tion in jury service on account of his race unconstitutionally discriminates
    against the excluded juror. Id. (citing Strauder v. West Virginia, 
    100 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 SQ
    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 some in-
    vidious ground.   We also conclude that Morgan v. Illinois, 
    112 S. Ct. 2222
    (1992), decided only three days before McCollum and relied upon in the dis-
    sent, has no direct bearing on the case sub judice, as it involves the narrow
    question of whether, in a capital case, jurors must be asked whether they
    "would automatically impose the death penalty upon conviction of the defen-
    dant." Id.
    
                                           8
    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 impartial jury and
         assisting counsel in exercising peremptory challenges.
         In [Aldridge v. United States, 
    283 U.S. 308
    , 
    51 S. Ct. 470
    , 
    75 L. Ed. 1054
     (1931), and Ham v. South Carolina,
         
    409 U.S. 524
    , 
    93 S. Ct. 848
    , 
    35 L. Ed. 2d 46
     (1973),] we
         held that the subject of potential racial bias must be
         `covered' by the questioning of the trial court in the
         course of its examination of potential jurors, but we
         were careful not to specify the 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
    
    prospective 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 opinion, 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 of whether the conduct of voir dire deprived the
    
    defendants of a fair and impartial jury.
    
    
    
    
                                     9
    HIGGINBOTHAM, Circuit Judge, with whom POLITZ, Chief Judge, and
    GARWOOD, JOLLY, DAVIS, JONES, and DEMOSS, Circuit Judges, join,
    would reverse the judgments of conviction for the 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 reliance on intuition
    
    and stereotypes in jury selection.                Peremptory challenges are
    
    often no longer peremptory.            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
    
    adequate   voir     dire.       The    combination        casts    a     pall   over
    
    increasingly   limited      voir   dire     of   jurors    in    federal    courts.
    
    These   practices    cannot     continue.        Both     the    prosecution     and
    
    defense are entitled to a full probing 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 black, Hispanic, and Jewish
    
    citizens of rights secured to them under the Constitution and
    
    laws of the United States, in violation of 18 U.S.C. § 241.                        A
    
    panel of this court affirmed the convictions, rejecting numerous
    
    assertions of error.          We granted rehearing en banc to consider
    
    whether the district court erred in refusing to explore the issue
    
                                           10
    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
    
    deprived     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
    
    Hammerskins, a white supremacist group based in Garland, Texas.
    
    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 drive 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       the    Temple       Shalom    and    Jewish
    
    Community Center in Dallas by spray painting them with swastikas
    
    and anti-Semitic graffiti, shooting 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
    
    charging the defendants with (1) conspiracy to deprive black and
    
    
                                              11
    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 Black and
         Hispanic citizens of the United States in the free
         exercise of the right secured to them by the
         Constitution 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 that 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 and intimidate
         Jewish citizens of the United States in the free
         exercise and enjoyment of the right secured to them by
         the Constitution and laws of the United States to hold
         real and personal property in the same manner as that
         right is enjoyed by all citizens.
    
              It 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
         to prevent Jewish persons from enjoying the holding of
         such property.
    
    8
         Tarrant and Greer were not charged in count three.
    
                                      12
          The case, tried in Dallas, Texas, touched deep emotions and
    
    sparked considerable publicity.            Recognizing that the case was
    
    being 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
    
    judge would conduct the voir dire himself, as Rule 24 of the
    
    Federal Rules of Criminal Procedure permits.               Second, rather than
    
    using the standard juror questionnaire 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 questionnaire as
    
    the   district      court   had   directed.        Among    defense    counsel's
    
    proposed questions were "[w]hat is your religion?," "[d]o you
    
    regularly attend church, temple or other religious services?,"
    
    and   "[d]o   you    hold   any   offices     in   your    church,    temple   or
    
    religious 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.9
    
    
    9
         See Jury Manual, United States District 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
           Before voir dire, defense counsel moved to strike for cause
    
    all black, Hispanic, and Jewish members of the venire, since they
    
    were    the    intended      victims   of   the   crimes      charged    in    the
    
    indictment.       The district court denied the motion, explaining
    
    that he would not presume that all members of these groups would
    
    consider themselves victims, or that they would be unable to
    
    observe their oaths.           Defense counsel responded that he hoped
    
    part of the voir 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 adduced 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]
    
    
    status, hobbies, clubs, groups, union membership, the newspapers
    or magazines they read, and their favorite TV programs.
    
                                           14
         substance that the Defendants acted to interfere with
         the constitutional protected rights of other persons
         because of their race or color or national origin. The
         Government may put on 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? (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 to judge
         matters under the Charge and 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
    
    brief, 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 read 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   to
    
                                           15
    seating victims of the alleged conspiracies on the jury.      They
    
    also renewed their request to ask the venire 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, of 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 going 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 convicted on all counts.10   There was no inquiry
    
    into the potential for racial 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 bias.    The panel also held that
    
    refusing to ask if any member of the venire was Jewish was
    
    10
         Lawrence was acquitted on the firearm count.
    
                                     16
    correct, rejecting the contention that the question was critical
    
    both   standing    alone    and    as   the    predicate     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 defendants 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    evidence   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 the only means by which the defendant can develop
    
    the information necessary to decide which jurors to challenge,
    
    either peremptorily or for cause.               "While challenges for cause
    
    permit rejection of jurors on a narrowly specified, 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 the
    
    
                                              17
    process of ensuring trial by a fair and qualified jury.
    
           In most contexts, we afford trial judges broad discretion in
    
    determining 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 jurors 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 must include questioning specifically directed to racial
    
    prejudice or bias to meet the constitutional 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 310.11
    
    
    11
         "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 relation to
    religious and other prejudices of a serious character."
    Aldridge, 283 U.S. at 313.
    
                                              18
         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.      See 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   argument   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."
    
    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
    
    disqualifying prejudice were allowed to serve as jurors and that
    
    inquiries designed to elicit the fact of disqualification 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 is
    
    
                                        19
    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.          See 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 Morgan 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 the death
    
    penalty if they found the defendant guilty.                 The trial court
    
    refused   to    ask   this   question,     explaining    that   it   had   asked
    
    questions in a similar vein.          It had explained the dictates of
    
    
    12
         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 conscious 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
    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 to 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    Aldridge      and    Ham,   Justice   White
    
    explained that general fairness and "follow the law" questions
    
    were    insufficient    to   detect   those    in    the    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, how 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 and
    
    
                                          21
    prejudice, when all the while he is likely denying it to himself.
    
    But potential jurors are often asked sensitive and potentially
    
    embarrassing questions.       See, e.g., Burton v. Johnson, 
    948 F.2d 1150
    , 1157-59 (10th Cir. 1991) (familial abuse); see generally
    
    United States v. Masat, 
    896 F.2d 88
    , 95 (5th Cir. 1990).                      The
    
    trial judge's questions must provide a reasonable assurance that
    
    racial bias or prejudice would be discovered if present.                    United
    
    States v. Harrelson, 
    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   venire    some
    
    questions concerning 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 regarding 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 class
    
    
                                         22
    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 constitutional
    
    right to an adequate voir dire.            Their convictions cannot stand.
    
         The government sought to prove at trial that the defendants
    
    deprived citizens of their federally secured rights because they
    
    were members of racial minorities.                  Regardless of whether we
    
    characterize all blacks, Hispanics, and Jews as the intended
    
    victims    of   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 indictment charged crimes
    
    that threaten members of these particular groups with violence.
    
    The very nature of the charged offenses therefore had a special
    
    significance for members of the venire who were black, Hispanic,
    
    or 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 charged offense.            The stunning fact is that two venire
    
    persons    disqualified       themselves      in    response    to     the   global
    
    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 one to
    
    three per page of the record) about pretrial publicity was no
    
    
                                            23
    more than whether 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
    
    answering   that      question.      It     is    no   answer     that     defendants
    
    collectively had fifteen strikes.               It is no answer because we are
    
    left with approximately forty venire 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 least some members of the racial groups
    
    targeted 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 because 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 that 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. Murray, 
    106 S. Ct. 24
    1683, 1689 (1986).        Since the crime charged in this case not only
    
    involved interracial violence, but violence predicated 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   they     did    rather    than    what      they     thought.        This    was   an
    
    important issue as the trial judge commendably 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 trial judge or a judge who failed to see that
    
    he had a sensitive and difficult case to try.                       The district court
    
    confronted the apparent tension 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 venire 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      highly
    
    
                                                  25
    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     Ham    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 case made
    
    clear that the voir dire was inadequate.                             See, e.g.,          United
    
    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.      See,    e.g.,    Aldridge,          283    U.S.    at    313       (citing       with
    
    approval   a    California         court's          reversal     of       convictions         when
    
    Mexican defendants 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 jurors' 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 bias and refused to
    
    
                                                   26
    allow defense counsel to discover the race of Jewish members of
    
    the venire when these matters were part and parcel of the charged
    
    offenses.
    
         Finally, we note that information as to whether members of
    
    the venire were Jewish was essential for the defendants to make
    
    reasonably intelligent 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 Batson 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.            Georgia 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 willing 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
    
    jurisprudence 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
    
    Ham and Rosales-Lopez recognize that it is an unfortunate fact in
    
    our society that violent crimes perpetrated against members of
    
    
                                         27
    other racial or ethnic groups are attended by a significant risk
    
    that racial or ethnic prejudice will influence jury verdicts.
    
    See    Rosales-Lopez,           451    U.S.    at    192.         Batson,       Edmonson,      and
    
    McCollum,      on    the    other      hand,       stand    for    the    proposition          that
    
    assumptions 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.
    
           Thus    the     Court's         decision       in      McCollum         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 juror 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          blacks,      Hispanics,        and       Jews     as     blacks,
    
    Hispanics, and Jews.                  In these circumstances, the defendants
    
    needed to know which members of the venire were members of these
    
    
                                                   28
    groups 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 charged 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 charged conduct.             This is not the stereotypical attributive
    
    stuff of an equal protection violation; rather it is a legitimate
    
    reason for a peremptory strike.                  Compare Hernandez v. New York,
    
    
    111 S. Ct. 1859
     (1991) (upholding peremptory challenges 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
    
    attributing     to     a    venire       person        a   nearly      universal     human
    
    characteristic SQsuch as a tendency to hostility toward those who
    
    threaten the individual because of his membership in a groupSQmay
    
    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,      and
    
    
                                                29
    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 issue of racial bias in this
    
    case.     Indeed, the Court's holding in Ham was grounded 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 Batson, Edmonson, and McCollum mandate, we must
    
    insist on a searching inquiry into the individual biases and
    
    prejudices        of    members    of    the    venire      in     civil     rights     cases
    
    redolent      with      prejudice,      bias,       and     anger.         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
    
    accentuates the demand for a thorough voir dire.                            The rights of
    
    defendants were lost in the effort to protect the venire.
    
    
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             There are no magic questions to be asked venire persons and
    
    we require none today.      The trial judge has discretion to control
    
    the 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.
    
    
    
    
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