to report these threats earlier because he thought the caller
was someone who had been attending trial and felt he could not
trust anyone in the courtroom.
The facts are agreed. The sole question is whether in the
circumstances, petitioners' were denied a fair trial.
Petitioners argue that it is inconceivable that Mr. Lanza could
have remained impartial given the extraordinary measures he
took to protect himself, and they point out that because Mr.
Lanza failed to report these improper contacts to the court, he
had a built-in motive to deny that the contacts affected his
judgment because his only way to avoid criminal sanctions was
to claim, falsely, that he had been "impartial" during jury
deliberations. According to petitioners, a post-trial hearing
is thus an inadequate remedy, and bias should be imputed to Mr.
Lanza. The state responds that no exceptional circumstances
here justify a departure from the usual deference afforded the
trial court's factual determinations.
The Sixth Amendment to the United States Constitution
provides that "[i]n all criminal prosecutions, the accused
shall enjoy the right to a . . . trial[ ] by an impartial jury.
. . ." The Supreme Court has long held that the remedy for
allegations of juror impartiality is a hearing in which the
defendant has the opportunity to prove actual bias, Remmer v.
United States, 347 U.S. 227, 74 S.Ct. 450, 98 L.Ed. 654 (1954).
In a recent case involving a claim of implied bias, the Supreme
Court rejected the argument that a court cannot possibly
ascertain the impartiality of a juror by relying solely upon
the testimony of the juror in question. Smith v. Phillips,
455 U.S. 209, 215, 102 S.Ct. 940, 944-45, 71 L.Ed.2d 78 (1982).
However, in her concurring opinion, Justice O'Connor "wr[o]te
separately to express [her] view that the opinion does not
foreclose the use of `implied bias' in appropriate
circumstances," Smith v. Phillips, 455 U.S. at 221, 102 S.Ct.
at 948, and described what she characterized as several
"extreme situations" that would justify a finding of implied
bias. Smith v. Phillips, 455 U.S. at 222, 102 S.Ct. at 948.
On the record here it is certainly possible to infer from the
evidence presented that bias existed. However, given the
deference to which state court findings are entitled, there is
an insufficient basis for overruling the finding of the state
court. All the information that is presently of record was also
before the trial judge. The trial judge was certainly in a
position to judge Mr. Lanza's credibility since he observed the
witness's demeanor at the hearing and was present at the trial.
On that basis, the court found that Mr. Lanza's testimony that
he was able to render an impartial verdict was credible. Given
the deference accorded state court findings as well as the fact
that that court heard and observed the witness in person and
that no showing has been made that the trial judge was biased,
the petitioners have not established their right to a new trial
because of the threats to juror Lanza.
Petitioners assert that their right to a jury chosen from a
cross-section of the community was violated by the systematic
exclusion of women from the venires from which their jury was
selected. Former New York Judiciary Law § 599(7), which was in
effect at the time of petitioners' jury selection, allowed
women to opt-out of jury service. On January 21, 1975, the day
that the first two jurors were selected, the Supreme Court
decided Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42
L.Ed.2d 690 (1975), which held that the "selection of a petit
jury from a representative cross section of the community is an
essential component of the sixth amendment right to a jury
trial" and thus, "women cannot be systematically excluded from
jury panels from which petit juries are drawn." 419 U.S. at
533, 95 S.Ct. at 699. It was not until February 10, 1975 that
all the jurors were sworn in the instant case and the selection
of alternates began.
The question is whether Taylor has retroactive application to
this case. In Daniel v. Louisiana, 420 U.S. 31, 95 S.Ct. 704,
42 L.Ed.2d 790 (1975), the Supreme Court held Taylor applicable
to convictions obtained
by juries "empaneled and sworn" after the date of that
decision, but it did not define the meaning of that term. 420
U.S. at 32, 95 S.Ct. at 705. Petitioners argue that
Taylor applies to this case since it is obvious that the
Supreme Court was referring to the swearing in of all of the
members of the trial jury when it said "empaneled and sworn,"
and that that event occurred in this case one month after the
Taylor decision. However, as late as 1980, the Court of Appeals
of this Circuit indicated that the question whether a jury was
"empaneled and sworn" upon its being summoned for duty or
whether the operative event was the actual administration of
the oath after the jury had been selected, was still an open
one. Alburquerque v. Bara, 628 F.2d 767, 775 (2d Cir.
1980).*fn11 If the question whether Taylor should be
retroactively applied was unsettled as late as 1980, it
certainly was not clear in 1975 when the petitioners' jury was
chosen. Thus it was not constitutional error for the trial
court in 1975 to deny petitioners' motion to strike their
original venire on the basis of Taylor.
Washington contends that his constitutional rights were
violated when he was allowed to proceed without counsel in the
second trial without a judicial inquiry as to whether he
knowingly and intelligently waived his right to counsel.
Respondents argue that Washington's claim is either forfeited,
unexhausted or equitably barred because of its long-delayed
presentation, and that, with respect to the merits, the claim
is factually frivolous. In any event, under the holding of
Harris v. Reed, 489 U.S. 255, 109 S.Ct. 1038, 103 L.Ed.2d 308
(1989), this Court is barred from hearing Washington's
self-representation claim because the last state court to have
ruled on this issue expressly relied upon an adequate and
independent state ground — the state's forfeiture doctrine —
in denying Washington's claim.*fn12 In Harris v. Reed, the
Supreme Court extended the "adequate and independent" state
ground doctrine developed in Michigan v. Long, 463 U.S. 1032,
103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983), to federal habeas
cases, holding that where "the last state court rendering a
judgment in the case `clearly and expressly' states that its
judgment rests on a state procedural bar," a federal court is
barred from habeas review. Harris, 489 U.S. at 263, 109 S.Ct.
at 1043 (citations omitted).
Washington did not advance any claim about
self-representation at trial or in any of the state appellate
briefs filed in his behalf on direct appeal. He presented this
claim for the first time in 1981 in his second motion to vacate
the judgement of conviction. The question is whether the state
court relied upon an adequate and independent state ground in
denying the motion to vacate.
In its original memorandum decision dated September 17, 1981,
the trial court ruled solely on the merits of Washington's
self-representation claim, concluding that no second waiver was
required for the retrial since Washington had acted pro se in
the first trial before a different judge:
There is no merit to the claim that the defendant
did not knowingly waive his right to counsel. He
appeared in the first trial pro se, and chose that
same status in the second trial for whatever
advantages he deemed might accrue although he did,
in fact, have ample opportunity to consult many
times daily with able counsel for his
However, the state had also argued that the claim was
"forfeited" under state law in opposing Washington's motion to
vacate. The New York forfeiture doctrine bars litigation of
claims which could have been presented on direct appeal.
Apparently, through an administrative error, the state