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. 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. * * *
(1) to show a central motive for the conspiracy by proving the occurrence of activity the conspirators desperately wanted to conceal, and (2) to explain the background and meaning of Hunt's threats to expose the “seamy things” he had done for the White House if his money demands were not met.
If you find that Mr. Haldeman did not purport to quote former President Nixon at the date, time and place alleged in Count Eight, then you should find Mr. Haldeman not guilty of the offense charged in Count Eight. Otherwise, you should apply to Count Eight the instructions on perjury which I have heretofore given you.
You may not convict a defendant of perjury merely because his testimony was factually incorrect, or if he gave incorrect testimony because of surprise, confusion, haste, inadvertence, an honest mistake as to the facts, carelessness, negligence, or if an incorrect impression was created because the defendant was interrupted while making his statement.
A Defendant may not be found guilty of perjury simply because he gives testimony which is factually incorrect. He may have given incorrect testimony because of surprise, confusion, inadvertence, honest mistake of facts, carelessness or negligence. Also, if a Defendant believed a statement to be true when he made it, you must find that Defendant not guilty, even if it so happens that the statement was, in fact, false.
The essence of the crime of perjury is that the challenged sworn testimony must be false and that the witness believes it to be false. No one may be convicted of perjury where he gives an answer that is literally accurate or is reasonably susceptible of more than one interpretation, one of which is truthful. Nor is it a criminal act for a witness to willfully state any material matter that implies any material matter that he does not believe to be true.
(t)here was no aspect of the obstruction in which (Mitchell) was not involved; the attempt to “spring” McCord; the false press release; the destruction of documents; the Magruder “cover story”; the attempted misuse of the CIA; the “hush money” payments; the veiled offers of clemency; and, finally, the false statements and perjurious testimony.
I have already instructed you on what we mean when we use the words, “specific intent,” “knowingly,” and “wilfully.” These words center on the purpose an individual has when he does something, that is, his intent, his will. Specific intent is an important element of the crime charged in Count Two. To convict any Defendant charged in Count Two, you must find, in addition to the other elements, that he had the specific intent to obstruct, impair, or impede the due administration of justice and that his endeavor was not accidental or inadvertent.
to obstruct justice in violation of Title 18, United States Code, Section 1503 * * * and to defraud the United States and Agencies and Departments thereof, to wit, the Central Intelligence Agency (CIA), the Federal Bureau of Investigation (FBI), and the Department of Justice, of the Government's right to have the officials of these Departments and Agencies transact their official business honestly and impartially, free from corruption, fraud, improper and undue influence, dishonesty, unlawful impairment and obstruction, all in violation of Title 18, United States Code, Section 371.
11. It was a part of the conspiracy that the conspirators would corruptly influence, obstruct and impede, and corruptly endeavor to influence, obstruct and impede, the due administration of justice in connection with the investigation referred to in paragraph three (3) above and in connection with the trial of Criminal Case No. 1827-72 in the United States District Court for the District of Columbia, for the purpose of concealing and causing to be concealed the identities of the persons who were responsible for, participated in, and had knowledge of (a) the activities which were the subject of the investigation and trial, and (b) other illegal and improper activities.
13. It was further a part of the conspiracy that the conspirators would, by deceit, craft, trickery and dishonest means, defraud the United States by interfering with and obstructing the lawful governmental functions of the CIA, in that the conspirators would induce the *121 **344 CIA to provide financial assistance to persons who were subjects of the investigation referred to in paragraph (3) above, for the purposes stated in paragraph eleven (11) above.
15. * * * (g) The conspirators would attempt to obtain CIA financial assistance for persons who were subjects of the investigation * * *.
the second part of the conspiracy statute254 concerns agreements to defraud the United States or any agency of the Government. The Government charges in Count One that these Defendants also conspired to defraud the United States in three ways: First, by attempting to induce the CIA to provide financial assistance to the Watergate defendants; second, by attempting to get the CIA to interfere with the Watergate investigation being conducted by the FBI; third, by obtaining and attempting to obtain *122 **345 information concerning the investigation from the FBI and the Department of Justice.
the very core of criminality under 2 U.S.C. s 192 is pertinency to the subject under inquiry of the questions which the defendant refused to answer. What the subject actually was, therefore, is central to every prosecution under the statute. Where guilt depends so crucially upon *125 **348 such a specific identification of fact, our cases have uniformly held that an indictment must do more than simply repeat the language of the criminal statute.
It was further a part of said scheme * * * that the said advertising, as the defendants well knew, would contain false, fraudulent and misleading statements * * * including among others * * * .
The grand jury's failure specifically to mention fraud with respect to refunds was most likely due to the belief that further spelling out of defendants' fraudulent scheme was redundant. Given the substantial evidence mustered on the point at trial, it is particularly unlikely that the grand jury consciously rejected such a charge.
. . . the pre-trial publicity in this case, although massive . . . (Majority opinion at 254 of 181 U.S.App.D.C., at 61 of 559 F.2d)
Without attempting to deny that the pretrial publicity in this case was extraordinarily extensive . . .. (Majority opinion, note 34)
No group of prosecutors and supporting personnel ever have labored under greater public scrutiny.
By the time of Archibald Cox's appointment as Special Prosecutor, “Watergate” had become the major journalistic event in the nation.
*142 **365 approximately a quarter of a million pages of Watergate facts already exist for public consumption. This material includes the public hearings and published reports of the Senate Select Committee on Presidential Campaign Activities and the House Judiciary Committee, other existing and forthcoming reports of Congressional committees, the voluminous records of the criminal trials resulting from (the Watergate Special Prosecution Force's) investigations, evidence obtained in several civil suits, and numerous books and articles analyzing the events of “Watergate” from a variety of perspectives.
we note that appellants' submissions overstate the amount of publicity by including, apparently, every story concerning the many difficulties of the last years of the Nixon administration, whether or not those stories discussed appellants. We also note that the overwhelming bulk of the publicity dealing with the conspiracy related to information properly brought out at trial.
The Senate Select Committee hearings, which had begun a week earlier, were covered live daily by the major networks, enabling millions of Americans to witness the unfolding of the scandal. Inspired or embarrassed by the persistent investigative reports of the Washington Post, many reporters assigned to cover the affair scrambled frantically in the competition to discover and reveal new examples of executive branch misdeeds.
Fortunately, (the Watergate Special Prosecution Force) experienced very few suspected leaks. In August 1973, it was discovered that some information discarded as trash had made its way to the Washington Post. A shredder was purchased to prevent any such experience in the future.
In thinking of your own opinions with regard to the guilt or innocence of the defendants in the cases we have been talking about what do you think has most influenced you what you have read in the newspapers or what you have read in magazines, or your own political position?2
I agree with Mr. Justice BRENNAN (dissenting) that the trial judge was woefully remiss in failing to insulate prospective jurors from the bizarre media coverage of this case and in not taking steps to prevent pretrial discussion of the case among them. Although I would not hesitate to reverse petitioner's conviction in the exercise of our supervisory powers, were this a federal case, I agree with the Court that the circumstances of petitioner's trial did not rise to the level of a violation of the Due Process Clause of the Fourteenth Amendment.
. . . if this case arose in a federal court, over which we exercise supervisory powers, I would vote to reverse the judgment before us.
. . . persons who have learned from news sources of a defendant's prior criminal record are presumed to be prejudiced.
The judicial attitude has taken the form of great deference to the discretion of the trial judge, even when there is evident dissatisfaction with his decision, of equating the ability to impanel a jury with the absence of any need for other relief, and of insisting that the defendant establish actual prejudice on the part of virtually the entire community.
A motion for change of venue or continuance shall be granted whenever it is determined that because of the dissemination of potentially prejudicial material, there is a reasonable likelihood that in the absence of such relief, a fair trial cannot be had. This determination may be based on such evidence as qualified public opinion surveys or opinion testimony offered by individuals, or on the court's own evaluation of the nature, frequency, and timing of the material involved. A showing of actual prejudice shall not be required.
As shown by such cases as People v. Martin (19 App.Div.2d 804, 243 N.Y.S.2d 343 (1st Dep't 1963)), Delaney v. United States (199 F.2d 107 (1st Cir. 1952)), and Rideau v. Louisiana (373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963)), there are occasions when the inherently prejudicial nature of the material, coupled with knowledge of its wide dissemination in the community, requires the granting of relief without elaborate soundings of community sentiment. In such instances, change of venue may be particularly appropriate when it can be shown that the news coverage has been far less pervasive in some other locality within the jurisdiction.
We believe, however, that it is inappropriate to attempt to formulate a supervisory power standard for concluding that a fair jury cannot be selected.
. . . persons who have learned from news sources of a defendant's prior criminal record are presumed to be prejudiced.
Think of it. The publicity that break-in got. I said, this is incredible.
If anybody gets on the stand and tells me they never heard of this case or read about it, I will exercise a challenge for cause. That is how I feel about it.
It has in many jurisdictions been common practice for denial of such a (change of venue) motion to be sustained if a jury meeting prevailing standards could be obtained. There are . . . difficulties with the approach . . . many existing standards of acceptability tolerate considerable knowledge of the case and even an opinion on the merits on the part of the prospective juror. And even under a more restrictive standard, there will remain the problem of obtaining accurate answers on voir dire is the juror consciously or subconsciously harboring prejudice against the accused resulting from widespread news coverage in the community? Thus if change of venue and continuance are to be of value, they should not turn on the results of the voir dire; rather they should constitute independent remedies designed to assure fair trial when news coverage has raised substantial doubts about the effectiveness of the voir dire standing alone.
Does anything you may have heard or discussed about this matter particularly stand out in your mind? Any one thing or several things?
This is . . . to determine whether or not you have the qualifications to be selected to be on this jury . . .
Do you believe at this very moment, and without having heard any of the evidence . . . that any Defendant in this case is guilty . . .?
Now . . . I am going to question you as to what you heard or read about the case to decide if you can be qualified to serve . . .
Now the Government and the Defendants in this case are entitled to have this case decided on its merits, that is, on the evidence presented in open Court and pursuant to the law as the Court will try to explain it to the jury at the end of the case. You must not be influenced, of course, by any events that transpire outside of the courtroom.
Does any reason whatsoever suggest itself to you at this time why if you are selected to serve on this jury you feel you could not listen to the evidence objectively and the testimony and at the proper time render or vote for a verdict or join in a verdict which will be based in your opinion solely upon the evidence that will be offered in open Court and the instructions on the legal principles involved of the law, in other words, applicable to the case?
Two-thirds of the jurors had an opinion that petitioner was guilty and were familiar with 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.
It was not as though the prejudice had been local, so that it could be cured by removal to another district ; . . .
Similarly, if you find beyond a reasonable doubt that a Defendant knowingly and wilfully approved or participated in some other corrupt activity, such as making offers of leniency, clemency or other benefits, making false statements to the FBI, making false statements under oath to the Grand Jury, misusing the FBI or CIA, or other such activity, you may find **386 *163 that Defendant guilty on Count Two if you also find beyond a reasonable doubt that his purpose was to influence, obstruct or impede the due administration of justice.
**391 *168 Deprivation of such a basic right is far too serious to be treated as nothing more than a variance and then dismissed as harmless error. Compare Berger v. United States, 295 U.S. 78 (55 S.Ct. 629, 79 L.Ed. 1314). The very purpose of the requirement that a man be indicted by grand jury is to limit his jeopardy to offenses charged by a group of his fellow citizens acting independently of either prosecuting attorney or judge. Thus the basic protection the grand jury was designed to afford is defeated by a device or method which subjects the defendant to prosecution for interference with interstate commerce which the grand jury did not charge.
Where guilt depends so crucially upon such a specific identification of fact, our cases have uniformly held that an indictment must do more than simply repeat the language of the criminal statute.
(T)he particularity of time, place, circumstances, causes, etc., in stating the manner and means of effecting the object of a conspiracy . . . is not essential to an indictment. Crawford v. United States, 212 U.S. 183 (29 S.Ct. 260, 53 L.Ed. 465).
Haldeman on or about June 7, 1972 in the District of Columbia violated 18 U.S.C. s 1503 by interfering with the Grand Jury investigation of the Watergate break-in and thereby did corruptly obstruct the due administration of justice by various means.
(Defendants) . . . did corruptly . . . obstruct . . . and . . . corruptly endeavor . . . to obstruct . . . the due administration of justice in conjunction with an investigation . . . by making cash payments and offers of other benefits . . . for the purpose of concealing . . . the identities of the persons who were responsible for . . . the activities (being investigated) . . . and by other means.
By alleging that the obstruction of justice with which the defendants were charged was carried out “by other means” in addition to those specified, the indictment effectively broadens the scope of the acts to which jeopardy attaches and correspondingly reduces the opportunity for subsequent prosecutions of these defendants for the alleged obstruction of justice during the lengthy period alleged in the indictment (June 17, 1972 through March 1, 1974).
by defrauding the Central Intelligence Agency, an agency of the United States
an impermissible delegation of authority to the prosecutor which enabled him to enlarge the grand jury accusation.
In fact, the allegations of conspiracy to obstruct justice and to defraud the United States in Count 1 are the basis of the allegations of the substantive offense of obstruction of justice in Count 2.
It follows that when only (making cash payments and offers of other benefits) is charged . . . a conviction must rest on that charge and not another, even though it be assumed that under an indictment drawn in general terms a conviction might rest upon a showing that (through misuse of the CIA the investigation was delayed).
**399 *176 Here, however, some indication of what was before the grand jury with respect to the CIA and what was intended by the phrase “by other means” in Count 2 is provided by the language of the conspiracy charge in Count 1 and the evidence admitted without objection in support thereof.
In thinking of your own opinions with regard to the guilt or innocence of the defendants in the cases we have been talking about (which included the Fielding break-in case as well as this one) what do you think has most influenced you what you have read in the newspapers or what you have read in magazines, or your own political position?
(Juror Hoffar was temporarily excused from the courtroom.)
(Juror Hoffar returned to the courtroom.)
(Juror Hoffar returned to the courtroom.)
(Indianapolis | (Richmond | ||||
---|---|---|---|---|---|
(U.S.) | (D.C.) | (Delaware) | area) | area) | |
Newspaper | 37% | 58% | 39% | 28% | 25% |
Television | 58% | 46% | 62% | 51% | 65% |
Magazines | 7% | 16% | 17% | 9% | 11% |
Radio | 5% | 11% | 9% | 4% | 3% |
Political Position | 6% | 11% | 3% | 4% | 4% |
Personal Decision | 13% | 14% | 15% | 15% | 8% |
Don't Know | 6% | 4% | 4% | 6% | 8% |
Indianapolis | Richmond | ||||
---|---|---|---|---|---|
Division | Division | ||||
District | Southern | Eastern | |||
United | of | District of | District | ||
States | Columbia | Delaware | Indiana | of Virginia | |
Have you ever read or | |||||
heard anything about | |||||
the fact that a | |||||
number of President Nixon's | |||||
former aides have been | |||||
indicted for covering up | |||||
the Watergate affair? | |||||
Yes | 91% | 93% | 97% | 92% | 88% |
No | 7% | 6% | 3% | 5% | 9% |
Not Sure | 1% | 1% | — | 1% | 1% |
No Opinion | 1% | 1% | — | 3% | 2% |
Thinking of Nixon's | |||||
former aides who are | |||||
now under indictment— | |||||
do you have an opinion | |||||
on their guilt or | |||||
innocence? (Response of | |||||
those who knew of | |||||
indictments.) | |||||
Yes | 58% | 73% | 64% | 55% | 50% |
No | 26% | 15% | 21% | 33% | 27% |
Not Interested | 1% | 1% | 1% | 1% | 1% |
Don't Know/No Opinion | 15% | 11% | 14% | 12% | 21% |
How do you personally | |||||
feel, do you feel they | |||||
are guilty or innocent | |||||
in the Watergate affair? | |||||
(Response of those who | |||||
knew of indictments.) | |||||
Guilty | 52% | 67% | 53% | 52% | 49% |
Innocent | 5% | 2% | 1% | 2% | 3% |
Not Guilty Until Proven | 24% | 16% | 21% | 23% | 19% |
No Opinion/Don't Know | 19% | 14% | 25% | 23% | 29% |
Of those who knew about | |||||
the indictment and | |||||
indicated that they had | |||||
an opinion, those | |||||
opinions were as follows: | |||||
Guilty | 75% | 84% | 78% | 79% | 75% |
Innocent | 7% | 2% | 1% | 3% | 4% |
Not Guilty Until Proven | 15% | 13% | 20% | 16% | 18% |
No Opinion/Don't Know | 2% | 1% | 1% | 2% | 4% |
In thinking of your own | |||||
opinions with regard to | |||||
the guilt or innocence | |||||
of the defendants in the | |||||
cases we have been | |||||
talking about—what do | |||||
you think has most | |||||
influenced you—what you | |||||
have read in the | |||||
newspapers or what you | |||||
have read in magazines, | |||||
or your own political | |||||
position?3 | |||||
Newspapers | 37% | 58% | 39% | 28% | 25% |
Television | 58% | 46% | 62% | 51% | 65% |
Magazines | 7% | 16% | 17% | 9% | 11% |
Radio | 5% | 11% | 9% | 4% | 3% |
Political Position | 6% | 11% | 3% | 4% | 4% |
Personal Decision | 13% | 14% | 15% | 15% | 8% |
Don't Know | 6% | 4% | 4% | 6% | 8% |
End of Document | © 2024 Thomson Reuters. No claim to original U.S. Government Works. |