Mclaughlin, Ganey and Freedman, Circuit Judges. Freedman, Circuit Judge (dissenting).
McLAUGHLIN, Circuit Judge.
Appellant was convicted of first degree murder in the New Jersey State Court and sentenced to death. The conviction was affirmed by the New Jersey Supreme Court, 35 N.J. 168, 171 A.2d 649 (1961). Petition for rehearing was denied December 11, 1961. Appellant's petition for certiorari was denied by the United States Supreme Court, 369 U.S. 866, 82 S. Ct. 1035, 8 L. Ed. 2d 86 (1962). Application was thereafter made to the United States District Court for the District of New Jersey for a writ of habeas corpus. That was denied June 26, 1962, without prejudice, for failure to exhaust state remedies. Appellant next sought such writ from the New Jersey Superior Court. As stated in the appeal from the denial of that petition by the New Jersey Supreme Court, 40 N.J. 309, 311, 191 A.2d 472 (1963), "The matter was assigned to the judge who presided at the trial and a hearing was held on September 21, 1962. The petition was denied and the cause dismissed." The New Jersey Supreme Court affirmed that judgment, supra, holding p. 311, 191 A.2d p. 473 "The complaint seeking the writ contains eleven counts all of which are cast by the pleader in constitutional terms. We have considered the merits of the grounds advanced in the complaint and find no substance in any of them." After that a second habeas corpus petition was filed in the United States District Court for the District of New Jersey. The eleven counts of the petition were identical with those of the state court habeas corpus petition except that the paragraphs were renumbered.
With respect to the material that was before the District Judge and whether a hearing was indicated the Judge stated in his opinion:
"In considering this present application this Court has secured a transcript of the entire jury selection procedure and trial. This transcript comprises some nine volumes of testimony. In addition the Court has had the benefit of detailed appendices supplied by counsel for the petitioner in which reference is made to the transcript and to which the full transcript of motion arguments are attached. In addition counsel for petitioner has submitted a brief apparently fully stating his position in the matter. At the date set for oral argument counsel for petitioner and the prosecutor agreed to waive same and rest their contentions on the file and the voluminous record of the proceedings. The Prosecutor's office submitted a copy of their brief filed with the Supreme Court in the State habeas corpus proceeding.
"The Court has given this matter long and careful attention and has fully read and digested all of the material submitted. The nature of the case is admittedly grave. The petitioner's contentions have been given full consideration by the New Jersey Supreme Court. As heretofore stated, the same contentions are raised in this proceedings for habeas corpus relief. The arguments raised may all be determined from the record and the transcript of the proceedings. There are no new elements alleged or contentions made which would require a hearing in the matter."
Appellant clearly agrees with the above in his brief, p. 5, where he says: "Upon the question of whether or not a hearing would be held, counsel rested upon the voluminous record before Judge Coolahan." The particular docket entry of the District Court found in appellant's appendix also bears this out. The entry reads:
"5-5-64 At call for hearing on petition for a writ of habeas corpus, Counsel indicated the matter would be submitted on the trial record and briefs to be filed. (Coolahan) (5-4-64)"
Our independent study of the state court record verifies completely the decision of the District Judge that in the full trial record plus the briefs and appendices of counsel he had everything before him necessary to his decision and that a hearing was not required. Townsend v. Sain, 372 U.S. 293, 83 S. Ct. 745, 9 L. Ed. 2d 770 (1963); Brown v. Allen, 344 U.S. 443, 73 S. Ct. 397, 97 L. Ed. 469 (1953).
The District Court in a comprehensive, carefully documented opinion denied the application for the writ. Actually there would be no need or really justification for stating our views at any length except for the circumstance that on oral argument some question arose about evidence having been introduced at the voir dire and in the trial itself concerning a prior homicide by defendant for which introduction the state was responsible. To satisfactorily deal with that problem the factual picture should be briefly outlined.
For about a year prior to February 1960, appellant, then fifty-nine years old, had been very friendly with Marion Wetzel who at the time was fifty-two years old. On February 4, 1960, shortly after 6:00 P.M. he entered a Newark, New Jersey tavern which Miss Wetzel owned and operated. She was there and they quarreled. A little later a witness saw appellant outside the tavern at his car, return to the tavern and point a shot gun at Miss Wetzel. The witness heard a shot and observed Miss Wetzel fall. When the police arrived they saw appellant struggling with two men for his gun. Witnesses testified that appellant at the time said, "I shot her. She's behind the bar." A shotgun shell was obtained from appellant's pocket. In a statement to the police appellant said he had blacked out and had no knowledge of the shooting. In the brief for appellant it is admitted that "Forcella did not question, at anytime, that it was his act, by the use of a shot gun, that caused the death of Marion Wetzel."
Forcella was indicted for first degree murder. His trial started on May 2, 1960. It is asserted on his behalf that "The panel of jurors chosen for the Forcella trial were quickly and effectively indoctrinated in an atmosphere of prejudice and bias." Complaint is made that the voir dire was before the whole jury panel and the statement is made that during it "* * * the trial court allowed the propaganda to commence."
The assertion that there was substantial error by reason of the voir dire examination being conducted in the presence of the jury panel is specious. The New Jersey procedure for the selection of a jury in a capital case was meticulously followed by the trial judge. There was no mention whatsoever of holding an in camera session, no thought of it or need for it.
The unmistakable neutral atmosphere surrounding the entire selection of the jury and the meticulous fairness of the trial judge and counsel on both sides were evident immediately on the examination of the first panel member called. The prosecutor inter alia asked as follows:
"Q. Mr. Jones, you understand at this posture of the case that both defense counsel and I are going to ask you certain questions not for any personal reasons but because we are trying to get a fair and impartial jury both for the defendant and the State.
You appreciate that fact, don't you?"
The prosecutor explained carefully and correctly the indictment for first degree murder, the jury function including that "a person found guilty of murder in the first degree is subjected to the death penalty, unless the jury, after a consideration of all of the testimony and his Honor's instructions as to the law, recommends life imprisonment, in which case no other punishment shall be given."
In examination by the defense attorney the following questions and answers occurred:
"Q. Now, we are looking for a group of men and women as jurors in this case who can approach the case with an open mind, who can approach it without any prejudice or bias, who will give the defendant the benefit of every reasonable doubt that might arise from the evidence and give the defendant a fair and impartial trial. Do you feel that you fall within that class of person? A. Yes.
Q. Do you know of any reason whatsoever why you can't sit in this case and decide it solely upon the evidence? A. No."
Mr. Jones was accepted as a juror.
The examination of the second person called was indicative of the careful insistence of the judge that the jurors have no bias or prejudice. The court's questions and the candidate's answers were:
Q. Do you mean that you could not decide this case strictly and wholly on the evidence and the charge of the Court? A. I am afraid not. This friend is still very critical.
Q. Because of that experience you think that will intrude upon your deliberations here?
The court asked the third prospect "You are saying that in no event would you vote for the death penalty?" The answer was "Yes, Your Honor." The prosecution challenged for cause and this was allowed.
The defense led off with the questioning of the next member:
"Q. You realize that this is a case in which the defendant is charged with murder and that the prosecutor is seeking the death penalty. Do you know any reason why you could not sit in this case and try and determine it without any bias or prejudice one way or the other and arrive at a verdict in the case? A. Yes.
THE COURT: You don't know any reason why?
THE JUROR: No, I don't have any reason."
Both sides again stressed that they wanted a jury with an open mind without any bias or prejudice one way or the other.
The above was the pattern of the voir dire interrogation of the entire 154 men and women examined. A proportionately great number of them stated an abiding objection to capital punishment and were properly excused. Others had physical conditions, the care of sick relatives and business reasons which rightly called for being released from service. To a large extent the above conditions developed immediately and were passed upon at once. Therefore in those instances the prime questions above detailed were not asked. In every other examination which reached the fundamentals of the prospect's ability to judge the evidence without bias or prejudice, etc., the absolute necessity of those people selected as jurors being absolutely fair and impartial was constantly and strongly impressed upon the individual panelists and the whole group present. Some of these had read newspaper stories of the killing involved and had thereby become prejudiced and were excused for that reason. Others had not been affected by newspaper stories. The forty-seventh person examined had read newspaper articles and had been influenced by them. He said "Well, I don't know as I couldn't sit on the jury but I don't believe I would turn a man loose to do it the third time." The prosecutor who was interrogating immediately advised the court that he believed "* * * this man has certain opinions concerning this case * * *." The defense examined the man at length and he said "* * * I would endeavor to do my best, to start all over", but he was not sure he could. The judge from the bench once more detailed the sine qua non in order to qualify for service on the jury saying:
"Q. And you are further saying, I take it, that you could not decide this case solely and wholly on the evidence that's adduced in this courtroom and on my charge, that your reading of the newspaper article would intrude itself upon your consideration?
A. Of course I haven't heard all the evidence. There could be a change of opinion that way.
Q. Are you saying that you could not decide this case wholly and solely on the evidence which is adduced in this courtroom and my charge of the law? Is that what you are saying?