People v. Tyburski

518 N.W.2d 441, 445 Mich. 606

• Court: Michigan Supreme Court
• Decided: July 19, 1994
• Docket: 95719, (Calendar No. 6)
• Status: Published

Opinions

Mallett, J.

The issue presented in this highly publicized murder case is whether defendant is entitled to a new trial because of the manner in which the trial judge conducted voir dire. Because the trial court abused its discretion by failing to conduct a sufficiently probing voir dire in order to uncover potential juror bias, and that, therefore, defendant was denied a fair trial, we affirm the decision of the Court of Appeals and remand the case for a new trial.

i

The Court of Appeals opinion sufficiently summarizes the underlying facts surrounding the murder.

Following a jury trial, defendant was convicted as charged of second-degree murder, MCL 750.317; MSA 28.549. He was sentenced to serve twenty to forty years in prison. . . .

This case arises from defendant’s killing of his wife on September 28, 1985. This fact is not in dispute. The case has received a great deal of publicity because of the unusual manner in which defendant disposed of the body: he stored it in a chest freezer in his basement for over three years. The body was discovered by his elder daughter on January 2, 1989.

Defendant admits killing his wife, Dorothy Tyburski, but claims that it was not murder but a killing in the heat of passion, thus manslaughter, or that he killed in self-defense. Defendant admitted the killing in his own testimony. He stated that his wife told him that she wanted him to leave for a couple of weeks and that she no longer loved him. Defendant replied that he still loved her and refused to leave. He then asked the victim whether she was having an affair with the eighteen-year-old boyfriend of their elder daughter. The victim refused to answer. She grabbed a knife and fork and went downstairs to get something out of the freezer. Defendant followed her to continue the conversation.

In the basement, the victim took some plastic containers out of the freezer. Defendant again asked her if she was having an affair with their daughter’s boyfriend. The victim responded with words to the effect of, "Yes, I am. I love Craig. He’s a man. You’re not a man. You’re a wimp, a punk, a bastard. You’re leaving. Get out of here.” The victim threw the frozen food containers, along with the knife and fork, at defendant as she said the words.

The victim came at defendant with her hands. Defendant pushed her away. The victim retrieved the knife and lunged at him with it. Defendant stated that he was in shock at this point over learning of the affair and afraid because of the physical attack. After he stopped the victim from stabbing him, he slammed her head into a beam many times. He then flung her into the freezer. He went upstairs, cleaned up, and returned to the basement a half-hour later. He noticed that the victim was motionless and was not breathing. At this point, he closed the freezer and never opened it again.

As for the cause of death, the medical examiner testified that the victim died of blunt-force trauma to the head. He testified that the injuries were inflicted by hitting the victim’s head into a blunt object, rather than vice versa. The medical examiner described a minimum of eleven blows to the head. Finally, the medical examiner ruled out suffocation as a cause of death. Thus, the victim was dead before defendant closed the freezer. [196 Mich App 576, 577-580; 494 NW2d 20 (1992).]

The details of the voir dire process are important and merit thorough review.

Before voir dire commenced, defense counsel moved for an individual sequestered voir dire and submission of a probing questionnaire to be given to prospective jurors. The trial court denied these requests, informing counsel that the court conducts its own voir dire for all its trials. Defense counsel also asked if the attorneys would be allowed to ask follow-up questions. The court said no, but that if specific follow-up questions came to mind after hearing a potential juror’s response to a question, the attorneys could write them down and the court would submit them.

When the questioning began concerning potential jurors’ exposure to pretrial publicity, the court gave a brief description of the case and asked how many had heard of it from the media. All the potential jurors initially seated raised their hands.¹ The court then began questioning individual potential jurors. The first colloquy was as follows:

The Court: All right. If you are selected as a juror, what you are going to have to do, Ms. Whitehead [sic], is basically separate what you have heard on tv or on the radio or in the newspaper and judge this case on what you hear in the courtroom. Have you developed any opinions thus far or feelings on this case one way or another as to what you’ve heard or read?

Juror Whiteside: Yes.

The Court: What are those feelings?

Juror Whiteside: In reading the article on it, I would tend to think that he would be guilty.

The Court: All right. Do you believe everything that you read in the newspaper?

Juror Whiteside: No.

The Court: Okay. Do you think that that is a way to settle disputes as to guilt or innocence by reading the newspaper?

Juror Whiteside: No.

The Court: Okay. If I were to tell you, Ms. Whitehead [sic], that you have to decide this case based on what you hear in the courtroom, will you be able to set aside your beliefs, set aside your opinions and listen to this case and render a fair decision?

Juror Whiteside: No.

The Court: No. Do you think what you’ve read thus far has tainted you to such a degree that you do not think that you could be fair to this defendant?

Juror Whiteside: Yes.

With this subtle admonishment of Juror White-side, the court had instructed the remaining potential jurors regarding the "correct” answer. Ms. Whiteside was excused for cause.

Likewise, the fourth and eighth potential jurors questioned admitted to having formed opinions against the defendant and that they would have difficulty setting aside these opinions. Although they were also excused for cause, in the court’s questioning of the eighth juror, Ms. Zimmer, the entire pool heard admonitions similar to those given to the first juror.²

The first of those initially seated to remain as jurors were the tenth and thirteenth questioned. Number ten, Mr. Gray, was questioned as follows:

The Court: Okay. How about you, Mr. Gray, do you recall hearing or reading anything about this case?

Juror Gray: On the news.

The Court: Okay. As a result of what you’ve heard or read, did you develop any beliefs or opinions?

Juror Gray: No.

The Court: Okay. Can you think of any reason why you should not sit and be a fair juror?

Juror Gray: No.

The questioning of juror number thirteen, Mr. Traylor, was similar to that of Mr. Gray.

The Court: Okay. How about you, Mr. Traylor? Do you recall hearing about this case?

Juror Traylor: I saw it on the news.

The Court: You saw it on the television?

Juror Traylor: And I started reading an article in the paper, but I can’t remember what happened. But I never finished it.

The Court: You never finished the article?

Juror Traylor: No.

The Court: Have you developed any opinions or beliefs?

Juror Traylor: No.

The Court: Okay. Can you think of any reason why you should not sit and be a fair juror?

Juror Traylor: No.

The last potential juror questioned in the morning session admitted to having formed opinions and that she did not believe she could be fair. The court replied:

The Court: You heard me tell some of the other jurors that we are not going to decide this case based on what is in the papers?

Juror Williams: Yes.

The Court: And you don’t think that that’s the way a society should be run, do you?

Juror Williams: No.

The Court: Based upon what you read in the newspapers, do you think everything is truthful?

Juror Williams: No.

The Court: Okay. But you are telling me that based on what you’ve read, you don’t think you can separate it and be fair?

Juror Williams: Yes. I couldn’t.

The court then recessed for a lunch break. During this recess, defense counsel submitted a written objection to the method of questioning used by the court. This objection was overruled.

The first potential juror questioned in the afternoon session, Mr. Rae, who was eventually seated as a juror, was asked to relate his potential bias resulting from pretrial publicity.

The Court: And how is it that you heard about this case?

Juror Rae: I think I recall a television newscast.

The Court: All right. Did you hear my statement that this case will be decided in the courtroom rather than by the media?

Juror Rae: Yes, your Honor.

The Court: Have you developed any opinions that would make you an unfair juror?

Juror Rae: No.

Juror Palmer, the third person questioned in the afternoon session was similarly asked to self-assess her potential bias.

The Court: How is it that you heard about this case?

Juror Palmer: On the news, read the paper.

The Court: Okay. Have you developed any opinions that would make you an unfair juror?

Juror Palmer: No.

The Court: If you are to sit and listen to this case, will you judge this case on what you hear in the courtroom?

Juror Palmer: Yes.

The Court: Can you think of any reason why you should not sit?

Juror Palmer: No.

Juror Palmer was eventually seated as a juror.

Likewise, the next person questioned was seated as a juror after passing the following scrutiny about potential bias from the media blitz:

The Court: Mr. Wilson, have you heard about this case?

Juror Wilson: Yes, I have.

The Court: And how is it that you heard about this case?

Juror Wilson: Television, news and I also was down in Columbus last — two weeks ago and I heard it on the tv down there.

The Court: As a result of what you’ve seen and heard, have you developed any opinions that would make you an unfair juror?

Juror Wilson: No, I have not.

After additional questioning of two more potential jurors, defense counsel asked to approach the bench. Following a discussion off the record, the court asked the group, by show of hands, who had read a particular Free Press magazine article.³ The record does not indicate if any jurors responded affirmatively.

The court then asked the attorneys if they had any written questions to submit at that time. Defense counsel answered "No, your Honor, just the ones that I have submitted.” The court answered that those that were not asked were not deemed relevant.⁴

At this point, the attorneys began exercising peremptory challenges. As the remaining potential jurors were questioned, three were excused for reasons relating to opinions formed after exposure to pretrial publicity. Nine of the remaining jurors questioned sat on the jury. The questioning of these nine on the issue of publicity-induced bias was perfunctory. An example is as follows:

The Court: Have you heard about this case?

Juror Moynihan: Yes.

The Court: How have you heard about it?

Juror Moynihan: Through the media, paper and TV.

The Court: All right. You recall reading the article that I held up?

Juror Moynihan: I may have, but I don’t remember reading it.

The Court: As a result of what you heard and read, have you formulated any opinions?

Juror Moynihan: No.

After the jury was selected, defense counsel moved for a mistrial because of the court’s voir dire procedure. Although counsel did not exercise all of her peremptory challenges, she explained:

I did not exercise all of our preemptory [sic] challenges. I was careful to say in closing yesterday not that I was satisfied with the juror panel but that I was not going to exercise on behalf of Mr. Tyburski any further pre-emptories [sic]. I don’t believe that using pre-emptories [sic] would have cured the Court’s procedure here. And I am not satisfied that this is an impartial jury. ... So I do move for a mistrial at this time.

This motion was denied.

II

A defendant who chooses a jury trial has an absolute right to a fair and impartial jury. Duncan v Louisiana, 391 US 145; 88 S Ct 1444; 20 L Ed 2d 491 (1968); People v Miller, 411 Mich 321, 326; 307 NW2d 335 (1981). The purpose of voir dire is to elicit enough information for development of a rational basis for excluding those who are not impartial from the jury. People v Brown, 46 Mich App 592, 594; 208 NW2d 590 (1973); People v Harvey, 167 Mich App 734; 423 NW2d 335 (1988). In voir dire, meaning "to speak the truth,” potential jurors are questioned in an effort to uncover any bias they may have that could prevent them from fairly deciding the case. It is the only mechanism, and the only safeguard a defendant has, for ensuring the right to an impartial jury. The propriety of the voir dire in this case turns on whether potential jurors who have been exposed to pervasive and sensationalized media coverage can "speak the truth” about their own bias, or whether a trial court must elicit more than mere self-assessment in order to safeguard a defendant’s right to an impartial jury.

A

The trial court has discretion in both the scope and the conduct of voir dire.⁵ Defendant does not have a right to have counsel conduct the voir dire, nor does he have a right to individual, sequestered voir dire. Neither does he have a right in every case to have the court ask questions submitted by counsel. The United States Supreme Court has also determined that there is no federal constitutional right to content-based publicity questions in every high publicity case. Mu’Min v Virginia, 500 US 415; 111 S Ct 1899; 114 L Ed 2d 493 (1991).

However, this Court has determined that where the trial court, rather than the attorneys, conducts voir dire, the court abuses its discretion if it does not adequately question jurors regarding potential bias so that challenges for cause, or even peremptory challenges, can be intelligently exercised. Fedorinchik v Stewart, 289 Mich 436, 438-439; 286 NW 673 (1939).

This Court has long recognized the importance of a voir dire that allows the court and the parties to discover hidden bias that would render a potential juror incompetent.

It is the evident intent of the law to secure a jury that shall come to the consideration of the case unaffected by any previous judgment, opinion or bias with respect either to the parties or subject-matter in controversy, and it is important to the rights of parties that they may be permitted inquiries which may be the means of discovering facts which will justify the exclusion of a juror. The success of a challenge depends upon eliciting such information from the juror himself, as well as from other sources, as to his state or condition of mind, as will enable a judgment to be formed by the court as to his competency. [Monaghan v Agricultural Fire Ins Co, 53 Mich 238, 246; 18 NW 797 (1884). Emphasis added.]

It is imperative, in securing the rights of the parties to an impartial jury, for the court to allow the elicitation of enough information so that the court itself can make an independent determination of a juror’s ability to be impartial.

We will not address defendant’s federal and state constitutional claims because there is no need to do so. Both Michigan and federal law support the conclusion that the superficial and leading questioning that took place here was an abuse of discretion.

In Mu’Min, supra, the United States Supreme Court, in a five to four decision, found that although inquiries into the content of news reports that a potential juror had read might have been beneficial in exercising peremptory challenges, peremptory challenges are not constitutionally mandated and therefore no constitutional violation had occurred. The Court noted that in reviewing a state court voir dire its authority was limited to enforcing the commands of the United States Constitution.

We enjoy more latitude in setting standards for voir dire in federal courts under our supervisory power than we have in interpreting the provisions of the Fourteenth Amendment with respect to voir dire in state courts. [500 US 424.]

The Court did not limit the authority of federal courts of appeals to continue requiring a voir dire that includes content questions in federal cases. See Mu’Min, 500 US 447, n 6 (Marshall, J., dissenting).

After Mu’Min, some federal courts of appeals have required content questions in high publicity cases, explaining that the court needs to inquire into the source and content of the exposure and the potential juror’s attitudes towards what they have heard or read in order to discover the truth regarding potential bias.

The court in United States v Davis, 583 F2d 190 (CA 5, 1978), explained the need for such questioning.

"[T]his Circuit has determined that it is for the court, not the jurors themselves, to determine whether their impartiality has been destroyed by any prejudicial publicity they have been exposed to. Therefore, when there has been publicity that would possibly prejudice the defendant’s case if it reached the jurors, the court should first ask the jurors what information they have received. Then it should ask about the prejudicial effect and it should make an independent determination whether the juror’s impartiality was destroyed.” [Davis at 197, quoting United States v Hyde, 448 F2d 815, 848, n 38 (CA 5, 1971).]

Employing similar reasoning, the court in Silverthorne v United States, 400 F2d 627, 638 (CA 9, 1968), found that the trial court’s "voir dire examination did not adequately dispel the probability of prejudice accruing from the pre-trial publicity and the jury panel members’ knowledge of the case.” That court predicated its conclusion on two grounds:

(1) the questions propounded by the court to the prospective jurors were calculated to evoke responses which were subjective in nature — the jurors were called upon to assess their own impartiality for the court’s benefit, and (2) the entire voir dire examination was too general to adequately probe the prejudice issue. [Id.]

Other state supreme courts, citing their supervisory powers over lower courts, have also stated that despite the sufficiency of voir dire for constitutional purposes under the standards of Mu’Min, trial courts should conduct voir dire in a manner that attempts, as much as possible, to eliminate bias and prejudice. State v James, 819 P2d 781, 787-789 (Utah, 1991). See also State v Everett, 472 NW2d 864, 866, n 1 (Minn, 1991).⁶

This Court, in keeping with our past decisions⁷ respecting parties’ rights to an impartial jury, likewise instructs the lower courts in this state to guard against potential bias resulting from media exposure. Pursuant to our supervisory powers under Const 1963, art 6, § 4,⁸ we instruct lower courts to conduct a thorough and conscientious voir dire designed to elicit enough information for the court to make its own assessment of bias.

B

This area of the law does not lend itself to hard and fast rules regarding what is acceptable and what is unacceptable practice. Courts indeed should be allowed wide discretion in the manner they employ to achieve the goal of an impartial jury. However, a court does not have discretion to simply fail to elicit enough information during voir dire to make an intelligent assessment of bias. See Monaghan and Fedorinchik, supra.

Where pretrial publicity creates the danger of prejudice, a court has several options. It can allow submission of a questionnaire to potential jurors, prepared by the parties and approved by the court. Questionnaires have the advantage of allowing an in-depth exploration of the source, extent, and content of media exposure for each potential juror at a minimum of the court’s time. However, questionnaires have the disadvantage of not allowing observation of demeanor in order to assess credibility. Used in the proper context, however, they serve as a useful starting point by allowing identification of those potential jurors who may be most tainted because of exposure to particularly prejudicial news items or by extensive exposure.

Another option is to allow attorneys to participate in the voir dire. Because the attorneys are more familiar with the complexities and nuances of the case, they are in a better position than the trial court to ask in-depth questions designed to uncover hidden bias. However, in attorney-conducted voir dire, there is a risk that the skillful attorney can inject partiality by establishing rapport and introducing his theory of the case to the jury.

Yet another method effective in securing an impartial jury is to question individuals or small groups away from the remaining veniremen. This allows probing questions and detailed answers without the risk of tainting the other jurors.⁹

c

Despite being alerted by defense counsel of extensive media coverage, much of this being negative toward the defendant,¹⁰ and becoming aware that virtually all the venire had been exposed to this coverage, the court elected to forgo all of the above procedures.¹¹ Because the court was put on notice of the high likelihood of media-induced bias, the court had a duty to exercise caution in the manner it conducted voir dire.¹² See Davis and Silverthorne, supra.

Individual sequestered voir dire was not necessarily required, as long as the method of questioning was adequate to expose bias and to avoid taint. The problem occurring in this case was that once the motions for sequestered voir dire and submission of the questionnaire were denied, an irreconcilable dilemma arose. If the court had asked sufficiently probing questions into the jurors’ media exposure and their opinions and attitudes toward it, then the entire panel may have been tainted by the answer.

Early on, defense counsel recognized this dilemma. Counsel attempted to avoid taint by asking the court to delve into pretrial publicity, but to frame questions so that jurors could indicate whether they held an opinion without expressing what the opinion was. The court refused, determining that it wanted to know what jurors’ opinion would be if they indicated they had one.

After the morning voir dire, defense counsel moved for a mistrial on the basis of the taint of the venire. With a sharpened awareness of the potential for taint, the court began to word questions so that jurors could answer in a neutral manner whether they had framed an opinion. Unfortunately, in both the morning and afternoon sessions, the court was unsuccessful in trying to delve into the extent of media exposure and the jurors’ reaction to it.

Instead, the court’s manner of questioning appears to have been focused on qualifying jurors, rather than on discerning bias.

Questions were framed to lead the jurors to the conclusion that they could be impartial. For example, five of the twelve jurors who decided the case were asked, "Have you developed any opinions that would make you an unfair juror?”¹³ The question is ambiguous and suggests the answer that the court was looking for. Those jurors who volunteered that they could not be fair because of opinions formed after exposure to negative publicity were lectured to by the court. These "lectures,” heard by the entire venire, sent a strong message that the court did not approve of those who volunteered that they were biased. It is not surprising, then, that as the questioning went on fewer and fewer jurors volunteered this information.¹⁴ Yet, the court did nothing more to assess bias than to ask the jurors themselves whether they could be fair.

Courts have long recognized that juror self-assessment of bias is inherently untrustworthy. While sitting as trial judge in United States v Burr, 25 Fed Cas 49, 50 (D Va, 1807), Chief Justice Marshall observed that a juror’s assertions of neutrality cannot be trusted:

Why do personal prejudices constitute a just cause of challenge? Solely because the individual who is under their influence is presumed to have a bias on his mind which will prevent an impartial decision of the case, according to the testimony. He may declare that notwithstanding these prejudices he is determined to listen to the evidence, and be governed by it; but the law will not trust him. . . . He will listen with more favor to that testimony which confirms, than to that which would change his opinion ....

Justice O’Connor, concurring in Smith v Phillips, 455 US 209, 221-222; 102 S Ct 940; 71 L Ed 2d 78 (1982), expressed similar concerns stating: "Determining whether a juror is biased ... is difficult, partly because the juror may have an interest in concealing his own bias and partly because the juror may be unaware of it.”¹⁵

As previously noted, a court should allow elicitation of enough information from potential jurors to enable judgments to be formed by the court regarding their ability to be impartial Monaghan, supra.16

D

Like the Court of Appeals, we cannot conclude that the trial court’s manner of limiting and conducting the voir dire and its failure to ask probing questions was not prejudicial to defendant. See People v Miller, supra at 326. "Without the benefit of any probing questions, we do not know what answers the veniremen would have given and what such answers would have meant to defendant in exercising a challenge for cause or a peremptory challenge.” Tyburski, supra at 590.

Therefore, we affirm the Court of Appeals decision. A juror’s self-assessment of bias should not be accepted without first eliciting information concerning the content and extent of the juror’s exposure to publicity so that the court can make its own determination of the juror’s impartiality. While it is within the trial court’s discretion to select the method for eliciting such information, it is an abuse of discretion to abdicate this responsibility.

Cavanagh, C.J., and Levin, J., concurred with Mallett, J.

Levin, J.

(separate opinion). I agree with the signers of the lead opinion that the trial court abused its discretion by failing to ask questions that were sufficiently probing. I write separately to state that, while a litigant does not always have the right to have counsel conduct the voir dire, in the instant case the trial court abused its discretion when it refused to permit Tyburski’s lawyer at any time to question the jurors individually.

The trial court’s method of questioning en masse failed to provide Tyburski’s lawyer with a sufficient factual basis to challenge a prospective juror’s ability to serve impartially, and prevented informed exercise of peremptory challenges and challenges for cause.

In a high-profile case, where the risk of a verdict based on extrajudicial influences is substantial, lawyer participation at some point in the conduct of voir dire is ordinarily essential to an informed exercise of the rights of challenge.

The extent and nature of pretrial publicity determines the specificity and depth of questioning that should be permitted on voir dire. This necessarily varies, depending on the facts of each case and the nature and extent of pretrial publicity and community passion.

Of the thirty-six questions submitted by Tyburski’s lawyer, the lead and dissenting opinions advert to the fifteen questions concerning the amount of pretrial publicity and the jurors’ exposure thereto.

Recognizing that questions merely quantifying exposure to publicity would not reveal underlying attitudes and biases and would render the voir dire incomplete,¹ Tyburski’s lawyer proposed questions seeking to expose latent attitudes or biases that might, in light of the nature of the pretrial publicity, interfere with a juror’s assessment of guilt based on the evidence. The questions submitted, but not posed, to prospective jurors were the following:

This case will involve a number of very serious and sensitive issues (marital discord, adultery, death) that may tend to arouse strong feelings in some people. The following questions are intended to explore whether you have a particularly powerful emotional reaction to any of these issues that would affect your ability to concentrate, or your ability to decide this case fairly to both sides.

There will be testimony in this case that the deceased, a forty-two year old woman, died from a severe beating. When discovered her body was completely frozen. While none of us wants to be exposed to such disturbing things, some people have a far more extreme reaction and simply cannot tolerate this type of evidence.

16. Is that the way you feel?

17. Do you know anyone who died as a result of a violent incident?

18. Have you ever had the unfortunate experience of seeing a person who was seriously injured or killed?

19. Have you had any experience with the death of a loved one or friend that would make it hard for you to sit as a juror in a case like this?

20. Are your parents living or dead?

21. If one or both of your parents are now deceased, how old were you when the first of your parents died?

22. What was the cause of death?

Obviously, in our culture, and in just about every culture, there are ceremonies and rituals that we perform when someone dies.

23. Why do you think these ceremonies and rituals are important to some people?

24. Do you believe that a person who does not receive a regular or immediate burial suffers some adverse consequence?

25. Do you have any particular religious or philosophical beliefs which govern your feelings about the way bodies should be treated after death?

26. Have you known married people (or lovers) who have had frequent verbal arguments?

27. Have you known people who have had physical fights with their spouse?

28. Do you think its true that people often say and do the meanest things to the ones they love the most?

29. Have you ever witnessed a situation where a verbal argument, particularly between spouses, has escalated quickly and unexpectedly into physical violence?

30. Some people have a very strong reaction to people who are not faithful to their spouses; other people have very little reaction and don’t believe that infidelity is morally wrong, depending on the circumstances. How do you feel?

31. Have you known anyone whose spouse was unfaithful to them?

32. What was their reaction to discovering that their spouse had not been faithful?

33. Was the "other” person involved in the affair a minor or a very young person? If so, do you think that made it worse? Why?

34. Have you ever heard of a situation where someone has overreacted or reacted violently to being told of or discovering adultery by their spouse?

35. Why do you think a person might react that way to hearing news of adultery?

36. Do you think that most people do have a breaking point — a point where they could be provoked into violent behavior?

The questionnaire prepared by Tyburski’s lawyer sought relevant information in a measured and emotionally neutral manner. The questions were not leading. Nor did they suggest a particular answer. They did not seek to proselytize prospective jurors or to extract commitments from them. Nevertheless, the trial court declined to permit use of the questionnaire, or to pose the questions or their equivalent.

The trial court, rather, asked some, not all, the prospective jurors whether they had "religious or moral beliefs that would make you an unfair juror.” In lieu of individualized, probing questions, the court asked the following compound questions, seeking a collective, nonverbal response:

As I told you earlier, ladies and gentlemen, if you are selected to sit on this case, you are here for one reason and that is that you are going to decide this case.

If you hear testimony — and I really don’t know what the testimony is going to be in this case — I have not seen the witnesses. I have not heard the witnesses. I will be hearing and seeing them for the first time as you will when they come before you.

But if you hear testimony — and I’m speculating as to what the testimony may or may not be as to any testimony concerning adultery or any testimony concerning violent beating or matrimonial arguments — and, of course, this is a case that involved death — but if any of those areas are brought up, if there’s any testimony on those areas, is that going to shock anyone’s conscience to such a degree? Or is there a background that you might have in any of those areas as to violence in the marriage or adultery or arguments that you believe might create an unfair mindset for you? Does anyone have a problem with any of those areas that are brought up in this case? If so, I’d like to see your hand raised if you think you might have a problem.

And, again, I really don’t know what the facts are going to show in this case. But how many people have had the unfortunate experience of seeing a parent die, pass away, maybe have gone to a hospital bed and witnessed that, something along those lines where you have actually experienced — witnessed the parent’s death?

Let me see a showing of hands.

Okay. As I told you, you’ll decide this case. And in this case, you will be given instructions at the conclusion of this trial, that you are to decide this case based on the facts.

Sympathy, prejudice, bias, must not influence your decision. Is there any one on this particular panel, specifically those of you who have raised your hand as a result of seeing a parent pass away that in this particular trial — since there will probably be some family, some children that will testify as to their deceased mother — would that invoke some type of sympathy in you that you think you might be prejudiced in some manner — if you can think in any way — maybe you can enlighten the Court. Maybe you might be biased in favor of Mr. Tyburski or maybe you may be prejudice [sic] against Mr. Tyburski as a result of the death of a family member and children having to go through that experience.

Anyone have a problem with that? Do you think that that might cause you to be an unfair juror? If so, I’d like to see your hand raised. Okay.

And, again, specifically dealing with one particular item that I already discussed, if there is testimony in dealing with the terminology adultery, is that going to create any feelings in someone that they believe that might make them an unfair juror in any way respect if they hear that type of terminology in this type of trial?

I think you might also hear some testimony that the deceased was in a freezer in a basement for three years.

And, therefore, immediately upon death did not receive an immediate burial when she passed away.

Is that going to create any problems maybe as a result of your background or any religious beliefs that you might have since there was not an immediate burial upon death or proper services right after the death occurred; is that going to create any problem for you as jurors?

If so, I’d like to see your hand raised. All right.

Specifically, you might hear some testimony that the deceased had an affair with a younger man. As a result of the age difference or just as a result of there being an affair — I don’t know if the testimony is going to show that, but if the testimony does show something along those lines, is that going to create a problem in anyone’s mind where that may be a result of beliefs, religious or otherwise, might make you think unfairly towards the deceased or unfairly towards the defendant?

Any problems if that testimony arises? If so, I’d like to see your hand raised.

You know, I imagine in some countries and even in some religions when a husband finds that his wife has committed adultery — in some religions— maybe the beliefs in that religion that death or murder may, in fact, may even be appropriate.

Does anyone harbor those beliefs? Or is anyone from a country that might have those beliefs? If so, I’d like to see your hand raised.

Is there anyone on this particular panel right now that as a result of areas that I have already covered or possibly did not cover thus far, that you would like to enlighten the Court on that you think the Court should be apprised of, maybe something in your background or it may be something that I touched on or did not touch on that you think the Court should be aware of that you think that might make you an unfair juror either towards the Prosecution or towards the defense.

If so, I’d like to see your hand raised.

The foregoing method of questioning was wholly inadequate to develop a factual basis for exercising peremptory challenges or challenges for cause. The trial court asked the panel a series of questions before seeking a response. Questions suggesting a "correct” answer, or providing a limited range of possible answers, fail to provide the information necessary for exercise of the rights of challenge.

Tyburski’s lawyer could not have been reasonably expected to evaluate the genuineness of the responses to questions calling for raising of hands —questions calling for no verbal expression whatsoever. Tyburski’s lawyer was left with only the jurors’ self-assessment of their impartiality, an unreliable measure of ability to set aside preconceptions.²

General questions, "Does anyone harbor those beliefs?” "Any problem if that testimony arises?” and "Anyone have a problem with that?” did not provide Tyburski’s lawyer with information sufficient to develop a reliable factual basis to select a jury reasonably free of preconception.

State and federal courts recognize the inherent unreliability of juror self-assessment of impartiality. Undue reliance on a prospective juror’s self-assessment of his capacity to set aside preconceptions, without further exploration, constitutes grounds for reversal.

Where the nature of the publicity raises a significant possibility of prejudice, cursory questioning by the court will not suffice. The court must take affirmative steps to assure that the voir dire provides reasonable assurance that preconceptions will be exposed. United States v Hawkins, 658 F2d 279 (CA 5, 1981).³ In that case, the trial court had asked the panel as a whole to raise their hands if they felt they could be impartial. The failure to undertake any other significant inquiry concerning specific biases was held to require reversal.

Conclusory questioning of the venire as a group concerning pretrial publicity in a well-publicized ammunition smuggling/jailbreak prosecution was similarly found to be inadequate and to require reversal. United States v Davis, 583 F2d 190, 197 (CA 5, 1978). The trial court had asked any member of the panel to raise his hand if he felt the publicity impaired his ability to render an impartial decision. No prospective juror indicated an inability to serve as an impartial juror. The trial court was found to have abused its discretion in failing to inquire in particular what each juror had heard or read and how it affected his attitude toward the trial, and in failing to independently determine whether each juror’s impartiality had been compromised.

The failure to inquire during voir dire concerning the effects of pretrial publicity was found to require a new trial in the case of the Chicago Seven (David Dellinger, Tom Hayden, Abbie Hoffman, Rennie Davis, Jerry Rubin and Bobby Seale), who were charged with making speeches for the purposes of inciting, organizing, promoting and encouraging a riot and conspiracy, under the 1968 Federal Anti-Riot Act.⁴ The events leading to their arrest arose out of anti-Vietnam war demonstrations during the 1968 Democratic National Convention. The media saturated the public with reports and images of the rioting and events before and during trial.

In reversing their convictions, the United States Court of Appeals for the Seventh Circuit held that the voir dire should have included at least minimal inquiry into three areas, including anti-Vietnam war sentiment, attitudes regarding "hippie” culture, and juror attitude concerning confrontation between city police and demonstrators. General questions regarding attitudes, associations, family, and employment status were not sufficient to test a juror’s possible prejudice, in a specific area where it might well exist.⁵

The Supreme Court of Hawaii reversed a conviction in a highly publicized armed robbery case, because the judge relied entirely on juror self-assessment of impartiality. There was significant publicity before and during trial, including photographs of defendants in handcuffs and reports of repeated outbursts in the courtroom, together with news articles that defendants led a gang responsible for recent robbery-murders in the community. State v Pokini, 55 Hawaii 640, 642-644; 526 P2d 94 (1974). The court found that the professed ability of jurors to set aside views resulting from the publicity, without more, did not adequately protect defendants’ right to an impartial jury.⁶

The need for attorney participation in voir dire becomes apparent on comparison of the court’s general, superficial questions with the carefully constructed questions submitted by Tyburski’s lawyer that sought to elicit specific, probative responses concerning issues often difficult to articulate, let alone acknowledge, in a courtroom. The general, superficial questions posed by the court elicited similarly superficial, and therefore unenlightening, responses from prospective jurors.

National models of criminal procedure provide for lawyer conduct of voir dire.⁷ Lawyer-conducted voir dire examination would have resulted in more complete factual development, leading to a more fully informed exercise of the rights of challenge. Questions should be closely related to the factual circumstances of the case. Lawyers review the facts and circumstances of the case over a period of days, weeks or even months. The judge, of necessity, allots but limited time and attention to review before the trial of the facts and circumstances.

If the rights of challenge are not to be empty, a litigant should be permitted sufficient inquiry into the background and attitudes of the jurors to enable intelligent exercise of those rights.⁸ The trial court deprived Tyburski of the benefit of his lawyer’s preparation and knowledge of the facts and circumstances. She was prevented from using that knowledge to assist the court in selecting an impartial jury.

Permitting attorney-conducted voir dire in appropriate cases need not result in abuse. The trial court retains the right to limit questions to appropriate information, and has the power to protect potential jurors from burdensome, harassing, or embarrassing questions.

III

In cases subject to intense media exposure, the prejudice arises in part from a juror’s familiarity with details of the crime before the trial. Each juror is obliged to set aside "knowledge” gleaned from the media. The risk of prejudice should be evaluated by the degree to which pretrial publicity lodges preconceptions in the minds of prospective jurors. A defendant is deprived of his right to a fair trial when the trial court fails to sufficiently protect the accused from the results of pretrial publicity.⁹

Refusal to ask questions posed by the defense does not require reversal; "[r]ather, the trial court’s failure to ask these questions must render the defendant’s trial fundamentally unfair.”¹⁰ To satisfy federal and state constitutional concerns, the trial court must ask questions designed to elicit responses that will uncover latent biases, and selection of a jury competent to render a verdict free of extrajudicial influence.

The trial court’s cursory questioning in the instant case was inadequate to protect Tyburski from the wave of publicity aired just before the trial.¹¹ Most of the news articles appeared in January and February, 1989. All three local television news stations ran stories on March 2, 1989, the day of Tyburski’s preliminary examination. The trial began on June 19, 1989, when the lurid details from media reports were still fresh in the public’s mind.¹²

I join in affirmance of the decision of the Court of Appeals.

1 All but two of the thirty-seven potential jurors eventually called for questioning acknowledged exposure to the media coverage. Of the twelve jurors who decided the case, all but one acknowledged such exposure.

2 The Court: Okay. As a result of what you have heard and read, have you formulated any opinions?

Juror Zimmer: Well, I’m afraid I would have to say I did.

The Court: Okay. And those opinions are not favorable toward Mr. Tyburski?

Juror Zimmer: That’s right.

The Court: You understand, Ms. Zimmer, don’t you, as I’ve discussed earlier that this case is going to be decided in the courtroom; isn’t that correct?

Juror Zimmer: Yes.

The Court: You understand that?

The Court: And you don’t believe that cases should be decided by the media, do you?

Juror Zimmer: No, I don’t.

The Court: You don’t believe that case[s] should be decided by what you read in the newspaper, do you?

Juror Zimmer: No.

The Court: You don’t believe that cases should be decided on what you hear or say [sic] on the tv; isn’t that correct?

The Court: Okay. But you are telling me that you’ve developed such a strong opinion that you’d have a hard time being a fair juror; is that correct?

Juror Zimmer: Well, I would have a rough time, I think.

The Court: You’d have a rough time?

Juror Zimmer: Yes, I believe I would.

The Court: Even though you believe that cases shouldn’t be decided on what you heard and read in the newspaper?

Juror Zimmer: I realize that . . .

The Court: You don’t know if what you’ve read is accurate, do you? There’s no way for you to know that; isn’t that correct?

Juror Zimmer: That’s true.

3 The article entitled "I found Mom!” appeared in the Detroit Free Press, Sunday Magazine, April 23, 1989. See n 10 for excerpts from this article. Defense counsel viewed it as particularly prejudicial.

4 The following questions from defendant’s proposed questionnaire are illustrative of the difference between the questions posed by the trial court and those requested by the defense:

7.....

—What do you remember from reading those articles?

8. Did you see television coverage of this case?-;

—What stands out in your mind about what you saw on tv?

9. Did you talk about this case with family, friends or coworkers?

—What stands out in your mind about what was discussed?

10. After hearing about this case, what was your reaction?

11. Did you form an opinion about anything connected to this case? If so, what was your opinion?

5 MCR 6.412(C) provides:

(1) Scope and Purpose. The scope of voir dire examination of prospective jurors is within the discretion of the court. It should be conducted for the purposes of discovering grounds for challenges for cause and of gaining knowledge to facilitate an intelligent exercise of peremptory challenges. The court should confine the examination to these purposes and prevent abuse of the examination process.

(2) Conduct of the Examination. The court may conduct the examination of prospective jurors or permit the lawyers to do so. If the court conducts the examination, it may permit the lawyers to supplement the examination by direct questioning or by submitting questions for the court to ask. On its own initiative or on the motion of a party, the court may provide for a prospective juror or jurors to be questioned out of the presence of the other jurors.

6 The pre-Mu’Min state supreme court decision in State v Pokini, 55 Hawaii 640; 526 P2d 94 (1974), is also instructive. A review of that case indicates that the pretrial publicity was not as pervasive as it was here. Yet, the Hawaii Supreme Court concluded that failure to conduct a probing voir dire denied the defendant his constitutional right to an impartial jury.

Given the quantity, quality, and timing of this pre-trial publicity, it was incumbent on the trial judge to conduct a thorough-going examination of veniremen who indicated they had been exposed to it. Yet without exception the trial judge relied on perfunctory and generalized questions which elicited responses from these jurors solely on their subjective ability to ignore pre-trial publicity and be fair and impartial. He expressly refused to allow inquiry into the extent and nature of the specific matters of publicity to which jurors had been exposed. Where pre-trial publicity is as extensive and as likely prejudicial as it was here, the constitutional right to an impartial jury requires examination into objective as well as subjective indicia of non-prejudice. [Pokini at 643-644.]

There is an essential difference between subjective and objective evidence of juror impartiality. The federal and state constitutions require the trial judge to attempt to adduce both where pre-trial publicity is as extensive as that preceding the trial of these appellants. [Citation omitted.] The trial judge’s express refusal to do so was reversible error because it foreclosed from his consideration crucial evidence of possible juror bias, thereby rendering fatally uninformed the exercise of his discretion not to excuse jurors for cause. [Id. at 644.]

7 See Monaghan and Fedorinchik, supra, and Poet v Traverse City Osteopathic Hosp, 433 Mich 228; 445 NW2d 115 (1989).

8 See Tomlinson v Tomlinson, 338 Mich 274, 276; 61 NW2d 102 (1953), and In re Huff, 352 Mich 402, 417-418; 91 NW2d 613 (1958), for a general discussion of this Court’s supervisory powers.

9 It also allows the court to assess the demeanor of potential jurors as well as their attitudes toward the case. This provides a basis for the court to make an individual judgment regarding a potential juror’s ability to be impartial.

10 The dissent’s characterization of the nature of the publicity surrounding this case as "mainly factual” is incorrect. After reviewing the record, it is clear that many of the news items were in fact negative and prejudicial toward the defendant. The following excerpts are instructive:

From “I found Mom!” Detroit Free Press, Sunday Magazine, April 13, 1989:

Leonard Tyburski did more than kill his wife. According to his confession the day of his arrest, he slammed her head against a concrete pole in the basement after she came after him with a steak knife, while taunting him with news that she had had sex with Kelly’s 18-year-old boyfriend. Once she was dead, he twisted her bloodied 5-foot-4, 135-pound body and stuffed it into the family freezer, atop frozen hamburger and kielbasa.

But Dorothy Tyburski suffered the ultimate indignity. The man who had made her miserable while she lived also succeeded in trivializing her desperate end. Her death became a standard of grisly comparison for other macabre tales, and the butt of morbid jokes.

From the Detroit Free Press, January 5, 1989:

For instance, how could Tyburski pass a lie detector test administered by the State Police in 1987 and how could he continue to live in his house knowing his freezer contained a dead body?

Joseph Buckley, president of John Reid & Associates, a Chicago-based polygraph firm, said that assuming the State Police polygraph technicians were well-trained and using proven testing techniques, an erroneous reading could have come from using a subject "with severe psychological problems who . . . operates on different norm than most of us.”

"If you’re testing somebody that believes he is Napoleon, he will pass the test because he believes it is true,” Buckley said.

A person might learn to live with something as morbid as his wife’s corpse if he was severely sociopathic — "a person with relatively little or no conscience,” said Dr. Philip Veenhuis, spokesman for the Michigan Psychiatric Society.

From the Detroit Free Press, January 6, 1989:

The friend said he and Kelly had searched for her mother in the Monroe and Toledo areas based on information from her father.

"He made up some very good lies,” the friend said. "He would make up stuff like she’s been charging on charge accounts and he was mad at her.”

He described Dorothy Tyburski as "a real nice lady,” but said she and her husband didn’t get along. "The more she was out of the house, the better she felt.”

The friend described Leonard Tyburski as "just a loud person, and when he’d get mad, he was an Adolf Hitler.”

Her friend said Kelly didn’t tell police about her suspicions because “she was afraid if she’d called the cops and her dad had come home, he would have done something to her.”

11 Although, as the dissent points out, the trial court told counsel that follow-up questions could be submitted, and indeed it appears that some were, follow-up questions that were more probing into the source and nature of the exposure of each juror were essentially precluded. This was made evident when the trial court indicated to defense counsel that those follow-up questions that had been submitted and were not asked were deemed irrelevant.

12 As a practical matter, few murder cases engender the extent of media coverage involved here. It would be far better to take the extra time in voir dire with the few cases that pose a serious risk of prejudice rather than face future appeals of voir dire issues.

The arguments of the prosecutor that a certain amount of publicity is required before the "presumption of impartiality” can be overcome misses the point. The prosecutor analogizes to venue law. However, as Justice Marshall noted, cases such as Irvin v Dowd, 366 US 717; 81 S Ct 1639; 6 L Ed 2d 751 (1961), stand "for the proposition that when a community has been subject to unrelenting prejudicial pretrial publicity the entire community will be presumed both exposed to the publicity and prejudiced by it, entitling the defendant to a change of venue. ... In this case, however, [the defendant] does not argue that the pretrial publicity was extensive enough to create a presumption of community prejudice. Rather, he argues that the publicity was prejudicial enough to create a presumption of prejudice on the part of any individual juror who actually read it.” Mu’Min, 500 US 442, n 3 (Marshall J., dissenting).

13 We recognize that this compound question was asked by the court precisely because defense counsel wanted the court to frame questions so that jurors could answer without revealing that their opinions were negative toward defendant. However, the court could have separated the two questions asking: (1) Have you developed any opinion in this case, and (2) if so, could you set this opinion aside? We note, however, that curing this defect would not have solved the problem of juror self-assessment.

14 Of the initial fourteen veniremen seated for questioning, four volunteered that they had formed an opinion from their exposure to pretrial publicity that would render them unable to be fair jurors. After the lunch recess, only two of the twenty-three veniremen questioned admitted such opinions.

15 Examples shared with this Court by the amici curiae, Criminal Defense Association of Michigan and National Jury Project, are illuminating:

The highly publicized 1975 Massachusetts murder and bank robbery trial of Susan Saxe demonstrates that adequate voir dire can reveal the specific information, attitudes and opinions that may be hidden behind general assurances of impartiality. More than one-fourth of the 146 jurors excused for having already formed an opinion in that case had denied at least once that they had any opinion. Most striking, one prospective juror denied repeatedly that she had any opinion. She had read newspaper accounts about the case and "knew all about this naturally,” but she repeatedly asserted that she could he fair, specifically denying any personal interest in the case or awareness of any bias or prejudice or inability to be impartial and repeatedly denying any opinion as to the defendant’s guilt or innocence. When finally asked what she thought the defendant had done, however, the juror admitted, "Well, we all know what she has done ... we all know the girl went in and held up the bank and the policeman was shot there.” Commonwealth v Saxe, Suffolk Cty Super Ct #51775-77 (1976), voir dire of juror #54, transcript reprinted in Jurywork: Systematic Techniques (2d ed 1983) at 10-46.1-10.49. Quoted in Mu’Min, supra at 443, n 4 (Marshall, J., dissenting).

Another example from the amici curiae is contained in a letter from Judge Prentice H. Marshall, United States District Judge for the Northern District of Illinois to Judge Jim R. Carrigan, United States District Judge for the District of Colorado. Judge Marshall was relating his experiences when he began allowing counsel to participate in voir dire.

"Immediately Judge Norman’s assertion was confirmed. A juror here and there who had assured me he or she could be fair and held no biases or prejudices admitted to a lawyer a profound bias, e.g., against police officers, black persons, etc.

"Then this fall the classic example occurred. I was presiding at a criminal case in which a labor union was a defendant. My inquiry addressed anti-union bias; virtually every prospective juror responded they had none and could be fair.

"The lawyer for the union ... on supplemental examination elicited admissions of prejudice from eleven prospective jurors who were excluded for cause.”

16 While it is true, as the dissent points out, that potential jurors were asked to identify the general source of their information, and were asked to raise their hands if they had read a particularly prejudicial Detroit Free Press article, these questions added nothing to what basically was juror self-assessment. The questioning lacked the necessary depth of insight required for the court to make any independent determination of bias. The dissent’s "general rule” that "a trial court does not abuse its discretion when it declines to submit questions to prospective jurors that are designed to reveal substantial prejudices, or to develop a rational basis for the exercise of challenges, as long as the trial court employs similar questions that adequately cover the area of potential bias,” is not dispositive. Post at 673-674. Questions that do not go beyond juror self-assessment do not adequately cover the area of potential bias.

Although the dissent recognizes the potential problem of juror self-assessment, it is content that the judge did in fact carefully guard against it because he exercised caution with respect to one juror who had admitted having formed an opinion, but stated she could set that aside. The dissent notes that after further questioning by the trial judge, this juror, who had been employed by a Christian high school for several years, was excused because she revealed that she was morally opposed to killing and was not positive she could give defendant a fair hearing.

The court’s apparent caution with this one juror does not negate its abandonment of caution in respect to other jurors. Those who did not voluntarily admit that they had formed opinions were merely asked if they could be impartial despite their admitted exposure to publicity. While the jurors who decided the case did not admit having formed opinions, they were asked nothing more than self-assessment of their ability to he impartial.

1 Tyburski states the issue as follows:

Where the media coverage in the freezer case was international in scope, saturated the local media, and was inflammatory against the defendant, did the voir dire process which was geared to qualify jurors without regard to media exposure, opinion or bias, violate defendant’s state and federal constitutional rights as well as the Michigan common law rights to an impartial jury and effective assistance of counsel?

2 The United States Supreme Court noted the inherent unreliability of juror self-assessment of impartiality. "No doubt each juror was sincere when he said that he would be fair and impartial to petitioner, but the psychological impact requiring such a declaration before one’s fellows is often its father. . . . [S]uch a statement of impartiality can be given little weight.” Irvin v Dowd, 366 US 717, 728; 81 S Ct 1639; 6 L Ed 2d 751 (1961).

3 Federal Rule of Criminal Procedure 24(a) provides:

The court may permit the defendant or the defendant’s attorney and the attorney for the government to conduct the examination of prospective jurors or may itself conduct the examination. In the latter event the court shall permit the defendant or the defendant’s attorney and the attorney for the government to supplement the examination by such further inquiry as it deems proper or shall itself submit to the prospective jurors such additional questions by the parties or their attorneys as it deems proper.

MCR 6.412(C)(2) provides:

The court may conduct the examination of prospective jurors or permit the lawyers to do so. If the court conducts the examination, it may permit the lawyers to supplement the examination by direct questioning or by submitting questions for the court to ask. On its own initiative or on the motion of a party, the court may provide for a prospective juror or jurors to be questioned out of the presence of the other jurors.

4 United States v Dellinger, 472 F2d 340 (CA 7, 1972).

5 Dellinger, n 4 supra, p 369.

6 United States v Lewin, 467 F2d 1132 (CA 7, 1972).

7 The following standards recognize the need for attorney questioning during voir dire:

—ABA Standard 15-2.4, quoted post, p 668, n 17.

—National Prosecution Standards, 17.2 Jury Selection:

Initial examination of jurors as to statutory qualifications may be conducted by the court; thereafter examination should be conducted by counsel.

Voir dire examination should not be conducted solely by the court since "there are always points in practically every case which are peculiar to that case, and which, by the same token, are unknown to the trial judge, but known to defense counsel and the parties.” Bias, preconception and prejudice are ever present, and they can and will affect a verdict. There is no foundation in reason, therefore, for placing these things beyond the thorough examination by counsel. [National Prosecution Standards, commentary, p 235.]

—Uniform Rules of Criminal Procedure, Rule 5120b):

Examination. . . . The court may put to the prospective jurors appropriate questions regarding their qualifications to serve as jurors in the case, and shall permit questioning by the parties for the purposes of discovering bases for challenge for cause and enabling an intelligent exercise of peremptory challenges. [10 ULA 261, 1992 Special Pamphlet, p 125.]

The United States Supreme Court has declined to require submission of content questions to jurors in state criminal proceedings although there has been significant pretrial publicity. The Court, acknowledging that the aba standards may represent the "better” view, ruled that that does not mean that they are incorporated into the Fourteenth Amendment. Mu’Min v Virginia, 500 US 415, 430-431; 111 S Ct 1899; 114 L Ed 2d 493 (1991).

8 United States v Dellinger, n 4 supra, p 368.

9 Given the pervasiveness of modern communications and the difficulty of effacing prejudicial publicity from the minds of the jurors, the trial courts must take strong measures to ensure that the balance is never weighed against the accused. [Sheppard v Maxwell, 384 US 333, 362; 86 S Ct 1507; 16 L Ed 2d 600 (1966).]

10 Mu’Min, n 7 supra, pp 425-426, citing Murphy v Florida, 421 US 794; 95 S Ct 2031; 44 L Ed 2d 589 (1975).

11 The following are a sampling of headlines and dates. "Woman missing since ’85 found in freezer,” January 3, 1989, Detroit Free Press; "Woman discovered in freezer was beaten, Police seek answers in 3-year-old slaying,” January 5, 1989, Detroit Free Press, Section A, pp 3, 4; "Daughter’s suspicions of freezer deepened,” January 6, 1989, Detroit Free Press, Section A, pp 3, 4; "Husband: We fought, she fell into the freezer, Statement to police says she threw knife,” January 7, 1989, Detroit Free Press, Section A, pp 3, 14 (the latter article discussed Dorothy Tyburski’s affair with her daughter’s boyfriend, and Tyburski’s statements to police). Similar articles appeared in the New York Times, Detroit News, and Plymouth Observer throughout January and February, 1989.

On April 23, 1989, the Detroit Free Press ran a lengthy article on the Tyburski family, complete with historical details of family discord and Tyburski’s lies to explain his wife’s three-year absence, including the following:

Leonard Tyburski did more than kill his wife. According to his confession the day of his arrest, he slammed her head against a concrete pole in the basement after she came after him with a steak knife, while taunting him with news that she had had sex with Kelly’s 18-year-old boyfriend. Once she was dead, he twisted her bloodied 5-foot-4, 135-pound body and stuffed it into the family freezer, atop frozen hamburger and kielbasa. Dorothy Tyburski’s neatly made-up face, now gashed, was pressed against the side of the freezer; she was barefoot, and wore jeans and a gray Hall & Oates T-shirt Kelly had bought her.

Within minutes after his wife’s death, Tyburski began a complex psychological game, telling his wife’s relatives elaborate lies, convincing his oldest daughter, Kelly, the inquisitive one, that her mother had left because she hated Kelly.

See Jordan v Lippman, 763 F2d 1265 (CA 11, 1985), where the United States Court of Appeals for the Eleventh Circuit reversed a conviction because the trial court had failed to conduct a searching and extensive voir dire in light of massive publicity concerning a racially charged public demonstration that had occurred just three days before the trial.

12 Jury selection long after a barrage of pretrial publicity has been held to be a significant factor in denying habeas relief. Patton v Yount, 467 US 1025; 104 S Ct 2885; 81 L Ed 2d 847 (1984). Lapse of time is crucial in softening the prejudicial effect of pretrial publicity, as community sentiment softens, details of the case slip from the public’s mind, and even jurors who once held preformed impressions of guilt or innocence may have weakened or eliminated convictions once held. Id., pp 1032-1034.