Jack Roland Murphy or Murph the Surf (born 1938 in Los Angeles, California) was a legendary surfer and convicted murderer who is most famous for his role in the biggest jewel heist in American history at the American Museum of Natural History.

Early years

He claims he played with the Pittsburgh Symphony Orchestra at age 15. In 1962 and 1963 he was a state surfing champ in Florida. In 1963, he won the Hurricane National Surfing contest in Florida.

Robbery

He was involved with a robbery on October 29, 1964, of the Star of India along with several other precious gems, including the Eagle Diamond and the de Long Ruby.

The thieves had unlocked a bathroom window during museum hours at the American Museum of Natural History, and climbed in that night. They discovered that the sapphire was the only gem in the collection protected by an alarm, and the battery for that alarm was dead. The stones were valued at more than $400,000.

Jack Murphy was arrested two days later with two accomplices, Alan Kuhn and Roger Clark. They received a three-year sentence. The uninsured Star of India was recovered in a locker in a Miami bus station. Most of the other gems were also recovered, except the Eagle Diamond. Richard Duncan Pearson was also convicted.

The heist was the subject of a 1975 movie, directed by Marvin Chomsky, called Murph the Surf. The movie starred Robert Conrad, Burt Young, and Don Stroud (as Murphy).

Murder

In 1968 he was convicted of first-degree murder of a California secretary, one of two women whose bodies were found in Whiskey Creek near Hollywood, Florida, in 1967. He also was convicted of trying to rob a Miami Beach woman in 1968. He was sentenced to life in prison in Florida.

Post Prison

When Bill Glass, Roger Staubach and McCoy McLemore visited Florida State prison in 1974, as part of a Bill Glass Champions for Life weekend, Murphy was impressed with the visitors, both world champion athletes and local businessmen. At that time Murphy had an earliest parole date of Nov. 2225, but that weekend changed his attitude and he devoted his future time spent in prison to serving a higher cause. His service in the chaplaincy program, leading Bible studies and mentoring other men in prison led the Florida Parole Board to release him on "parole with lifetime monitoring" in 1986.

In 1986, Murphy began going back into prisons and jails all over the U.S. as a platform guest with Bill Glass. In 1990, he was hired on staff with Bill Glass Champions for Life. Murphy has also been a featured speaker for Kairos, Coalition of Prison Evangelists, Int'l Prison Ministries, Time for Freedom and Good News Jail & Prison Ministry. After visiting over 1,200 prisons, and recognizing the incredible change apparent in this man's life, the FL Parole Board terminated his "lifetime parole" in 2000.

Murphy is now international director for Champions for Life, visiting prisons, jails, and youth detention facilities all over the world. Murphy authored a book of his experience and testimony "Jewels for the Journey".

Wikipedia.org

Murph the Surf

In late October 1964, thieves stole 22 gems from New York City’s Museum of Natural History. Three of the stones were so famous they would be impossible to sell. Within 48 hours, aided by confidential police sources, two men in New York and another two in Miami were arrested. One of those men, Jack Murphy, was a legendary surfer and beach boy. Later, he was to commit - apart from murder - the biggest jewel heist in American history. Today his moniker ‘Murph the Surf’ still haunts him, despite his efforts of rehabilitation and becoming a Born Again Christian and preacher.

Jack Roland Murphy was born in Los Angeles, California before the family moved to Pennsylvania. He was the A1 student and the boy every parent dreams of, showing an aptitude for sport and ability in most subjects. A passionate surfer, he was named the state’s top surfer in 1963, winning the National Hurricane Surfing championship twice. More incredibly at 15 years of age he was playing with the Pittsburgh Symphony Orchestra.

Throughout his colourful career it is claimed that he has been a concert violinist, tennis pro, movie stunt man, high-tower circus diver, and less noble; a jewel thief and convicted murderer, who was even the subject of a 1974 feature film, ‘Murph the Surf’, starring Robert Conrad.

His audacious crime of the stealing the Star of India, a 563.35 carat star sapphire, wasn’t something he benefited from. Two days later he was arrested with his accomplices.

But the main question is what turned a high achieving young man with accolades and women at his feet into a violent criminal? A psychologist who examined him after an arrest in 1968 said “he’s top notch at everything he does”
Highs & Kicks

One probable answer is that he realised he experienced a vicarious thrill from danger and getting away with criminal acts. The thrill of the chase and participating in a high powered heist, no doubt gave him the kind of emotional high or kick that he failed to get from other areas in his life. The principle character who introduced him to a life of crime was swimming instructor and ladies man, Allan Kuhn. The wealthy Kuhn epitomised the glamorous gangster, with his yacht, 50-knot speedboat and a Cadillac convertible.

Taking up the risky and dangerous world of stealing with Kuhn, Murphy loved the getaway scenarios that felt like something straight out of an action film. There was the thrill of escaping the law by boat or car and this was part of a glamorous package that included an affluent lifestyle made up of swanky parties, upmarket apartments, even safe houses in Hawaii and yachts around the Caribbean. But the crime that was to immortalise his name in hall of infamy was to become known as the greatest jewel heist of the 20th century.

The Crimes

The Star of India, one of the most precious jewels in the world, was exhibited along with other valuable gems in what was known as the J.P. Morgan Collection in New York’s Museum of Natural History.

On the evening of October 29, 1964, Murphy and his cohorts climbed through a bathroom window they had unlocked during opening hours. The Star sapphire was the only gem in the collection protected by an alarm. Luckily for them the battery operating the alarm was dead. Murphy managed to steal stones, including the sapphire worth around $400,000.

The high he must have experienced from such an audacious robbery that involved no violence, was short lived when Murphy was arrested along with his accomplices just two days later. The Star of India was recovered in a Miami bus station locker. Most of the other gems were also found.

The one thing that gave them away was the lavish parties they had held at the Cambridge Hotel while planning the heist.

Murphy received 21 months in jail. When he came out it appeared that his experiences had hardened him for he is quoted as saying that when he came out of New York’s Rikers Island prison he didn’t give a ‘damn’ about ‘anything or anyone’.

Murder

Relating to the next crimes committed by Murphy, that statement certainly appeared prophetic.

1968 was to see a turning point in Murphy’s style and image as a glamorous cat burglar. For he was to become involved in crimes of violence that led to several deaths.

Murphy acted as look-out and getaway driver when he and two partners broke into the huge mansion of Olive Wofford, a Miami Beach socialite. Wofford later told police, the thieves held a pistol to her and also threatened to pour boiling water over her eight year-old niece if she didn't co-operate and open the safe.

Murphy was later tracked down by the police which involved a high-powered chase where he drove his vehicle through a pair of French doors. When apprehended and found to be swathed in bandages Murphy quipped "I cut myself shaving."

But worse to come was the discovery that two Californian secretaries had died at his hands in 1967 despite Murphy denying he had anything to do with the killings. Later to be known as the Whiskey Creek murders, the two women had been shot, bludgeoned to death and then dumped in a creek near Hollywood, Florida.

Concrete weights had been tied to their necks to sink them. The victims had allegedly been brutally killed in a dispute over nearly half a million dollars worth of securities stolen from a Los Angeles brokerage. Murphy was convicted of first-degree murder and sentenced to life in prison.

Despite denying he was involved in the Whiskey Creek murders, Murphy was convicted of killing Terry Rae Frank, 24, in 1969 and sentenced to life in prison. In 1970, he received a second life sentence, plus 20 years, for conspiracy and assault to commit robbery against Olive Wofford.

Due to becoming a model prisoner, a Christian and showing remorse for his past Murphy was paroled from the Florida State Prison in 1986.

Rehabilitation

After 19 years, Murphy was released from Florida State Prison in 2000, mainly because of his exemplary behaviour. During his time in prison he had become religious and taken on a role assisting the prison's chaplain and counselling young offenders. The Florida Parole Board saw fit to terminate his lifetime parole.

Today Murphy acts as an Evangelist style preacher visiting the prisons as a ‘messenger of God’ with the aim of helping rehabilitate other felons through religion. He says of his villainous and murderous past

“To this day, that era pains me. I'm not at all pleased with my past, or the terrible mistakes that I did, the hurt that I caused people. I am ashamed and embarrassed by all of that."

Ex-thief 'Murph the Surf' to retell his story in film

Now living in Crystal River and leading a prison ministry, Jack Murphy became a legend for stealing jewels.

By Terri D. Reeves - St. Petersburg Times

TARPON SPRINGS - It's been nearly 40 years since Jack Roland Murphy made national headlines.

Now "Murph the Surf" is 66, with white hair and tanned, textured skin. He is a handsome man: 6 feet tall with chiseled features and ocean-blue eyes.

Smart, too. Psychologists have labeled him a genius.

He speaks with confidence, panache and hard-earned wisdom.

He was a national surfing champion, a concert violinist, a tennis pro, a movie stunt man.

He was also a notorious jewel thief - the man who stole the Star of India sapphire - and a convicted murderer.

Now he is a born-again Christian and director of an international prison ministry.

Last week, the man who seems to have several lifetimes' worth of experience came to Tarpon Springs to tell his story of crime, punishment and redemption to a documentary film crew.

"If you're not doing God's business, you are just doing time," he said.

Producers from Interlock Media, an independent production company based in Cambridge, Ma., are shooting a documentary called Faith in the Big House. In it, they plan to explore questions about spiritual transformations within the prison population. Murphy is their star interview.

On Thursday, their location of choice was a cramped second-story office at the Landing at Tarpon Springs, a marina and office complex on the north bank of the Anclote River. It was chosen because Murphy loves the ambience of Tarpon Springs and the window provided a view of the Sponge Docks.

Inside the sweltering office, the windows were closed and the air conditioner was turned off because the sensitive sound equipment would pick up every pin drop. When workers outside had to refill a 4,000-gallon fuel tank, the crew stopped until the noise subsided.

All the while, Murphy sat patiently under a hot light, his back to the sun, his ears and face coated with burnt orange makeup. He looked a bit like a baking sweet potato.

"You are spritzing," said director Jonathan Schwartz, who signaled a production assistant to wipe his face.

Fifteen oppressively hot minutes later, the fuel tank was filled and Murphy launched into his spiel about his organization, the Bill Glass Champions for Life. He talked about his 12,000 volunteers - counselors, entertainers, sports superstars, and successful ex-cons - who will visit 400 prisons throughout the United States and the world this year. On Saturday, he and 100 volunteers took the Day of Champions ministry to the Pinellas County Jail for a half-day program.

The razzle-dazzle shows are motivational and spiritual in nature.

Murphy says prisoners are looking for an answer and Jesus Christ is it.

"Our country was founded on a book about a man who was executed on death row," he said.

Murphy was not always religious. As a young man in the late 1950s and early 1960s, he worshiped the Miami sunshine, beaches and pretty girls.

He loved watching movies, especially ones about clever crooks. His movie idol was Cary Grant and his favorite movie was To Catch a Thief.

"But movies don't show the aftermath. They don't show prisons and how horrible they are," he said.

Murphy was talented in many areas. A violin prodigy, he played with the Pittsburgh Symphony Orchestra at age 15. In 1962 and 1963, he was a state surfing champ. In 1963, he won the Hurricane National Surfing contest.

He became a tennis pro, movie stunt man, and then started his own surfboard company and became known as Murph the Surf.

Murphy was riding high on the wave of life.

Then he began having wipeouts.

He lost his business and his marriage and fell in love with booze.

He got involved with a wild crowd and before he knew it, he was involved in a robbery.

"It didn't hurt anyone and insurance would cover it," he told himself.

Murphy found he loved the adrenaline rush of the getaways: by boat, car or swimming for his life in shark-infested waters.

And he loved the lifestyle: a home in Hawaii, a penthouse in New York, and a safe house in Santa Monica, Calif., for cooling off after the jobs.

Murphy was writing his own movie script, but he wasn't planning on the surprise twist.

In 1964, Murphy and two partners pulled off what has been called the largest jewelry heist in national history. They broke into the American Museum of Natural History in New York and stole the J.P. Morgan Collection of precious gems.

Their haul included the world's largest sapphire, the Star of India, a 563-carat gem about the size of a handball. They also snagged the 14-carat Eagle Diamond; the Midnight Sapphire, the largest black sapphire in the world; and 26 other priceless gems.

Murphy was caught and spent two years in New York prisons. The gems eventually were recovered from a bus station locker in Miami.

In 1968, he was back in the slammer in Florida. He was convicted of first-degree murder of a California secretary, one of two young women whose bodies were found in Whiskey Creek near Hollywood, Fla., in 1967. He also was convicted of trying to rob a Miami Beach socialite in 1968.

He was sentenced to life in prison and spent the next 19 years in Florida prisons, where he learned to paint seascapes and lighthouses.

He said he became a born-again Christian at the Florida State Prison in 1971.

"I didn't take it too seriously then," he said. "It just seemed like the politically correct thing to do."

In 1974, he met Bill Glass, a pro football player who brought his prison ministry to the prison. Over the next few years, Murphy and Glass established a rapport.

"Suddenly the pieces of the puzzle came together. I started to think differently. I began to really understand Christianity and how it could affect my life in a positive way," he said.

When he was paroled in 1986, he became a volunteer for a number of ministries. One was the Bill Glass Champions for Life.

"They asked me to come on staff to help with banquets, youth work and prison counseling," he said.

The ministry grew and so has his role. He is now the international director and spends his days organizing events, raising funds, and ministering to prisoners.

Murphy wants people to know that there is "an army of men and women who are coming out of prisons who are no longer criminals because God has raised them up."

The Interlock Media documentary will not be the first time his life has been put on film. He's been featured in documentaries before. In the mid-1970s, Hollywood released a feature film titled Murph the Surf starring Robert Conrad and Donna Mills. Murphy says it's inaccurate and thinks they ruined it by trying to turn it into a comedy.

He has been married for 15 years to a woman he met during the making of a documentary while he was in prison. They live in Crystal River. Between them, they have three sons and six grandchildren. He has written a book, Jewels for the Journey, in which he talks about his faith.

And he goes back to prison - not because he likes it, but because his faith demands it.

"I hate going into prisons," he said. "They are the devil's junk pile. But I do it because people visited me and it meant a lot. I'm not doing anything different. It's just my turn. Jesus said, "You visited me when I was in prison,' so it is a command of God to go to prisons and anywhere people are down and out."

Jewel Thief Turned Born-Again Grandpa Loving Life

By Todd Lewan - Associated Press

Sunday, February 26, 2006

CRYSTAL RIVER, Fla. He taps the table. He rubs his watch. He stirs his iced tea. He smooths his marlin-patterned boat shirt. When he's not talking, his eyes dart from his cell phone, to the lacquered fish on the walls of the waterfront restaurant, to the boats.

No, Jack Murphy — the legendary surfer and beach boy who scored the grandest jewel heist in American history 41 years ago — isn't one to sit still long.

"I can't sit around on a cruise ship, or sit around in a lounge," he says. "I'm always, always, fiddling with something."

He has been a concert violinist, national surfing champion, tennis pro, movie stunt man, high-tower circus diver, business owner, cat burglar, painter, author, convicted murderer and subject of a 1974 feature film, "Murph the Surf," starring Robert Conrad.

"In fact, he's top notch at everything he does," wrote a psychologist who examined him after an arrest in 1968.

Murphy shrugs.

"I've always been very, very assertive." He digs his fork into some Key lime pie. "I've got to have projects."

Murphy is clearly focused on his present occupation — messenger of God. He visits the world's most violent prisons to spread the Gospel among the baddest criminals.

The man who once sparked one of the biggest riots at Florida State Prison is, at the age of 68, international director (and oldest staffer) of Champions for Life, a prison ministry founded 35 years ago by the former Cleveland Browns football star Bill Glass.

The job takes Murphy into more than 200 prisons a year. He preaches, counsels inmates, fundraises and organizes events from Puerto Rico to England, from Barbados to South America.

This year, he's visiting prisons in Brazil and Russia. More than 800,000 copies of his book, "Jewels for the Journey," have been distributed in prisons across Russia and India.

A Murph-organized event is an extravaganza. He brings in major league athletes, motorcycle clubs, ventriloquists, high-wire performers, country, soul and rock singers, wrestling, karate and boxing champions and successful ex-cons. ("We've also got a skydiver who has parachuted into 160 prisons," he notes, "and Dondi, the only 'born again' elephant in the world.")

Of course, it's Murphy the prisoners want to see. And he usually gives them a good show.

He bounds onto the stage, snaps up a microphone, blesses his audience and rattles off tales of his prison experiences, of his most famous scams and heists. He sprinkles his patter with quotations from Scripture and stock lines like "If you're not doing God's business, you're just doing time."

Education and employment aren't enough to rehabilitate a criminal, he says. "If you don't deal with a person's heart, with their soul ... all you're doing is passing out Band-Aids." He says he recently preached at a penitentiary in Fort Worth, Texas. "And in the audience, serving time, were 22 attorneys, six judges and a congressman. I rest my case."

His own change of heart occurred in 1974, the day Glass and his troupe of NFL stars, including Hall-of-Famer Roger Staubach, spoke to the inmates at the Florida penitentiary where Murphy was serving two life sentences.

As he remembers it, the athletes talked about the important role God played "in a real man's life," and, for the first time, he considered the possibilities of faith.

There was no magic moment; his transformation, he says, is "sort of a lifelong process."

In time, he became a model prisoner and jailhouse artist, painting seascapes and lighthouses, counseling troubled youths, working for the prison's chaplain.

After 19 years, Murphy was released. In 2000, because of his exemplary behavior and ministry, the Florida Parole Board voted unanimously to terminate his lifetime parole.

Still, to crime buffs and the masses, he remains and perhaps always will be Murph the Surf, the hypercool master of the waves who, along with two sidekicks, pulled off what has been called the largest, most audacious jewel heist of the 20th century.

On the night of Oct. 29, 1964, they broke into New York's American Museum of Natural History and stole the J.P. Morgan Collection — including the Eagle diamond, the Midnight sapphire, the DeLong ruby and the world's biggest sapphire, the Star of India, a 563-carat gem about the size of a racquetball.

Within 48 hours, Murphy and his cohorts were in police custody — thanks in part to a bellhop at the Cambridge Hotel, where the three had been planning the break-in and throwing lavish, all-night parties for weeks. The jewels were recovered from a locker at a Miami bus station, except for nine diamonds that had already been fenced.

"I was supposed to be on my way to Hawaii to surf," Murphy told a reporter for The New York Times. "But this inconvenience has fouled the whole thing up."

He copped a plea, and 21 months later, Murphy left the jail at Riker's Island behind — though not the criminal mind-set. "When I came out of prison in New York," he says, "I didn't give a damn about anybody or anything."

In 1968, Murphy was the driver and lookout man when three of his partners entered the 19-room mansion of Olive Wofford, a Miami Beach socialite. At one point, she later told police, they held a pistol to her and threatened to pour boiling water on her 8-year-old niece if she didn't open the safe.

A swarm of police tracked him down. As they closed in, he dove, headfirst, through a pair of French doors on the second floor. (At the arraignment the next day, Murphy was asked why his face was swathed in bandages. "I cut myself shaving," he said.)

That year, Murphy was charged with first-degree murder in the "Whiskey Creek murders," the 1967 case of two California secretaries who were found shot, bludgeoned and dumped in a creek north of Miami, concrete weights lashed to their necks. Prosecutors said the women were killed in a dispute over $488,000 worth of securities stolen from a Los Angeles brokerage.

Murphy denied it. Nevertheless, in 1969, he was convicted of killing Terry Rae Frank, 24, and sentenced to life in prison. In 1970, he received a second life sentence, plus 20 years, for conspiracy and assault to commit robbery against Wofford.

To this day, that era pains him.

"I'm not at all pleased with my past, or the terrible mistakes that I did, the hurt that I caused people." His strong voice loses volume. "I am ashamed and embarrassed by all of that."

How did a man who was offered a tennis scholarship to college — who was invited to play violin with the Pittsburgh Symphony at age 17 — become a legendary criminal?

Jack Roland Murphy was born in Los Angeles, the son of an electrical lineman, and grew up in Carlsbad, Calif. The family moved to Pennsylvania when Murphy was a senior in high school, but he quickly traded the harsh winters for sunny south Florida, and returned to his passion, surfing.

Twice he was named Florida's top surfer, and in 1963, won the National Hurricane Surfing championship. (He was inducted into the Surf Legends Hall of Fame in 1996.)

But he fell in with Allan Kuhn, a diver, swimming instructor and ladies' man with a yacht, 50-knot speedboat and Cadillac convertible. Together, they took up stealing.

What hooked Murphy were the getaways; there was a thrill to escaping the law by boat, car, or by swimming through miles of shark-infested waters. And he loved the lifestyle — the safehouses in Hawaii, the parties in New York, the celebrations on yachts around the Caribbean.

In early October of 1964, the duo stepped into Kuhn's convertible and drove from Miami to the Upper West Side of Manhattan, and their rendezvous with larcenous history.

Four decades later, Murphy has lost the old swagger. In his twilight years, he has a bit of a spread (too much calamari, he says), his forehead is freckled with age and sun spots, and his hair, once a sweep of sun-bleached gold, is now white and receding at the temples. He no longer poses for pictures in his trademark sunglasses.

Once an epic womanizer, Murphy has been married 18 years to a member of a film crew that came to his prison to do a documentary. Between them, they have three sons and seven grandchildren. "My wife and I have been home-schooling three of our grandchildren, ages 4, 6 and 8, for the past 14 months," he says. "Now, THAT'S a challenge."

He skis in Colorado, sails with family down to Key West, and surfs off Cocoa Beach, Puerto Rico, Hawaii and California. Murphy keeps four clear, "classic" boards at the ready, and paddles out when "the waves are nice and little and it's not an ordeal."

But his priorities are elsewhere: "Mankind wasn't created to build Superdomes and highways and get a lot of money. Your purpose is to represent God."

Sometimes, Murphy leafs through his collection of writings on America's legendary gangsters and criminals. He pauses over one that features his face on the cover.

The book lumps Murphy in with Jesse James, Al Capone, Thomas Blood. This does not faze him.

"Every single one of those guys died in prison, or died some tragic, tragic death," Murphy says. "Very, very few of the historical characters of the underworld xpeople. They didn't learn from their mistakes."

495 F.2d 553

Jack Roland Murphy, Petitioner-appellant,
v.
State of Florida, Respondent-appellee

United States Court of Appeals, Fifth Circuit.

June 10, 1974, Rehearing and Rehearing En Banc
Denied July 12, 1974

Before GEWIN, THORNBERRY and SIMPSON, Circuit Judges.

SIMPSON, Circuit Judges:

The lower court, by a reported opinion, Murphy v. State of Florida, S.D.Fla.1973, 363 F.Supp. 1224, denied appellant's petition for habeas corpus relief from two state sentences received in a single trial, to life imprisonment for armed robbery and consecutively to twenty years imprisonment for assault with intent to commit robbery. We affirm.

The attack upon the state convictions both in the trial court and here is based primarily upon a claim of denial of Fourteenth Amendment due process because of extensive pre-trial newspaper publicity regarding Murphy, known as 'Murph the Surf',¹ and resultant prejudice to his Sixth Amendment right to a trial before an impartial jury. Inasmuch as the background facts are fully set forth in the lower court's opinion,² a brief outline of them will suffice here.

The issues here as below are (1) whether the Florida state trial court erred in denying appellant a change of venue in the light of the pre-trial publicity; (2) whether that court erred in failing to dismiss for cause those trial jurors who knew Murphy was a convicted felon; and (3) whether that court erred in refusing to bifurcate the trial on the issues of guilt and sanity.

Petitioner was arrested with three other persons in January 1968 as they fled the scene in Dade County, Florida of the robbery of Mrs. Olive Wofford, a wealthy resident of Miami Beach. In May, 1968 before his trial for the Wofford robbery, the petitioner was arrested and indicted for the double murder in an adjoining Florida county, Broward, of two young women, Terry Rae Kent Frank and Annalie Mohn. These killings became notorious in the press as the 'Whiskey Creek Murders.'

Pre-trial proceedings in the Wofford robbery case involved the trial judge's controversial ruling as to the petitioner's competency to stand trial. Extensive newspaper coverage again occurred. The robbery charges in the Wofford case were nolle prossed to permit the Broward County trial for the Whiskey Creek Murders to proceed. In August 1968, prior to that murder trial, Murphy and three others were indicted by a federal grand jury for conspiring to transport stolen securities in interstate commerce, charges related to the Whiskey Creek case and so played up in the press. Murphy was found guilty on March 1, 1969, of one of the Whiskey Creek murders, that of Terry Rae Kent Frank. Again, the trial and its result were extensively publicized by the news media.

Thereafter on August 25, 1969, the state prosecutor refiled the Wofford robbery case. In December of the same year, Murphy pled guilty to one count of the federal indictment.³ During the early July 1970 pre-trial proceedings in the Wofford case, Murphy moved for change of venue on the basis of prejudicial pre-trial publicity, including the publicity attendant upon the earlier hearing in the Wofford robbery case, the Star of India theft, the Whiskey Creek Murders, and the federal conspiracy charges. The state trial judge duferred ruling on this motion pending voir dire examination of the jury panel. Voir dire commenced on July 27 and was completed on August 10, 1970. Of 78 veniremen questioned, 12 were excused peremptorily by the petitioner, and 8 by the state, 27 were excused for medical or economic reasons and 3 were excused for miscellaneous reasons. 20 were excused because they stated that they had formed an opinion as to petitioner's guilt and could not give him a fair trial. 8 jurors were selected to serve at the trial, 6 regular and 2 alternate.

Of the 8 selected, 5 had read or heard about the facts surrounding the Wofford robbery through the media, from discussions with friends or through discussions with other prospective jurors. Each of the eight knew that Murphy had previously been convicted either in the Star of India theft or the Whiskey Creek Murders, but each assured the court that he would reach a verdict based solely on evidence intorduced at the trial. The court denied the motion for change of venue and the trial proceeded. Murphy's plea of insanity was rejected and he was convicted and sentenced, as noted supra, to life imprisonment and to a term of twenty years consecutive thereto.

The court below carefully weighed the claim of denial of due process on the basis of prejudicial pre-trial publicity, accepting his 'duty to make an independent evaluation of the circumstances', Sheppard v. Maxwell, 1966, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600, but imposing upon the petitioner the burden of showing that his conviction was a result of 'essential unfairness . . . not as a matter of speculation but as a demonstrable reality', Adams v. United States ex rel. McCann, 1942, 317 U.S. 269, 281, 63 S.Ct. 236, 242, 87 L.Ed. 268. The district court was 'sensitive to the delicate balance that must be struck as a result of the pervasiveness of modern communications and the need to insure a fair trial for the accused', 363 F.Supp. at 1226, adopting the approach set forth in United States v. Agueci, 2 Cir. 1962, 310 F.2d 817, cert. denied, 1963, 372 U.S. 959, 83 S.Ct. 1016, 10 L.Ed.2d 12; Irvin v. Dowd, 1961, 366 U.S. 717, 722-723, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751, and Reynolds v. United States, 1878, 98 U.S. 145, 156-157, 25 L.Ed. 244. The district judge found the presence of some objective criteria, Beck v. Washington, 1962, 369 U.S. 541, 82 S.Ct. 955, 8 L.Ed.2d 98, in the nature and the time span of the pre-trial publicity. We are in agreement with his determination that since the newspaper articles were largely factual rather than inflammatory, and since the dates of the news clippings and edited television news releases were almost entirely between December 15, 1967 and January 24, 1969 (only five articles being presented to the court bearing dates of the period of the jury selection and only one of those being a front-page article) the passage of time is a crucial factor in this case. We find no record basis upon which to disturb his finding that 'each of the five jurors who had some knowledge of the facts of the Wofford robbery possessed only a vague recollection of the facts.' 363 F.Supp. at 1229.

We agree with the district court that the failure to grant the motion for change of venue was not a denial of due process.

In this connection the petitioner urges that the language used by Judge Eaton (quoted Note 3, supra) in granting a continuance in the federal conspiracy trial shows that a change of venue was mandated in the Wofford robbery trial in state court. This is a new contention, not relied upon before the district court. These remarks were as Judge Eaton stated, not based on the question of prejudice, but entirely on his own estimate of the practicalities of the situation and the conservation of his own judicial time. Made as it was sixteen months prior to the state court trial of the Wofford robbery case, and addressed to entirely different considerations, his statement is irrelevant in the context of this habeas corpus petition. We find petitioner's argument in this respect to be without substance.

The second issue, whether each juror who possessed knowledge of Murphy's previous felony convictions, should have been excluded for cause is, as stated by the court below, more troublesome, but we affirm his rejection of this ground of attack by his excellent analysis at pages 1229-1230, 363 F.Supp. As pointed out there, Marshall v. United States, 1959, 360 U.S. 310, 79 S.Ct. 1171, 3 L.Ed.2d 1250, will not support issuance of the writ on this ground, since as the Supreme Court was at pains to point out, 360 U.S. at 313, 29 S.Ct. at 1171, its action was taken in that direct criminal appeal pursuant only to its inherent supervisory powers and not in terms of due process standards. We think the district court correctly appraised the situation in its refusal on grounds of federalism to grant the writ on this ground of the petition.⁴ The district court's holding in this respect is well sommarized in the following language:

'Although the situation in Marshall is factually similar to the instant case, the rationale of that opinion militates against Petitioner's position. This Court, then, finds that a trial by jurors, each of whom has obtained knowledge of a defendant's past felony convictions through pre-trial publicity does not, in light of the Supreme Court's refusal to so find, rise to Constitutional proportions when each juror has satisfied the impartiality requirements set forth in Irvin v. Dowd, supra. The Court recognizes that the distinction between acts or occurrences which warrant the exercise of federal supervisory powers and those which reflect a denial of due process is often a nebulous one. Nevertheless, the dictates of federalism compel this Court to abide by that distinction whenever it exists. Petitioner's claim regarding the effects of pre-trial publicity must fall.' 363 F.Supp. at 1230.

Finally, we agree with the holding below that the final ground of attack, the refusal of the state trial court to grant a bifurcated trial on the issues of guilt and sanity, does not rise to constitutional dimensions. Due process does not require a separate trial and the states and their courts are free to determine whether such issues should be tried separately or together. United States v. Huff, 5 Cir. 1969, 409 F.2d 1225, cert. denied, 1969, 396 U.S. 857, 90 S.Ct. 123, 24 L.Ed.2d 108.

The judgment appealed from is in all respects

Affirmed.

*****

1

Murphy had received nationwide press attention in 1964 for his role in the theft of the 'Star of India' sapphire from the New York Museum of Natural History. The public media's use of the nickname 'Murph the Surf' dated from that time

2

3

A statement made by the presiding judge, U.S. District Judge Eaton, in the course of these proceedings did not occur shortly before the Wofford robbery trial in the state court, as stated by appellant's brief. The record shows that Judge Eaton's statement was made at a March 6, 1969 hearing, not at a 1970 hearing, as appellant's brief seems to indicate. At that hearing Judge Eaton granted a continuance of the case before him, No. 68-360, rather than rule on a motion for change of venue. His ruling was based on expediency:

'I am forgetting the question of prejudice and being very practical about it . . . I think if we tried to do that next week, that we would spend a week on voir dire and never conceivably get a jury. Speaking of the time in Court, I have five other criminal cases I could be trying while we are asking these folks if they know anything about Murph the Surf, because I am telling you, they do. People in this County can tell you who Murphy is, who would not have the slightest idea who Earl Faircloth is, and I think that is a fair statement. I am not talking about any prejudicial newspaper coverage at all. It may be that because Mr. Murphy has simply sort of, somehow or another, become pretty good publicity; but the point is, considering for a moment every count in every trial which was ever had was entirely fair, this man is simply too widely known, and so is Griffith and Kuhn, to some degree.'

As noted in the text, Murphy pled guilty to one count of this indictment in 1969. Judge Eaton thereafter granted a change of venue to Pensacola in the Northern District of Florida to the remaining defendants under that indictment. Their case was tried and disposed of by him in Pensacola in April 1970.

4

We are aware of the view announced in United States ex rel. Doggett, 3 Cir. 1973, 472 F.2d 229, 237-239, that Irvin v. Dowd, supra, and Sheppard v. Maxwell, supra, broaden the Marshall holding so as now to require that its rule be applied to state trials. While the question arose in a prejudicial publicity-change of venue setting in Doggett, we do not seriously doubt that the Third Circuit would apply its holding equally in a situation involving, as presently under discussion, denials of challenges for cause based on a juror's knowledge of prior convictions. With deference, we disagree with our sister Circuit's conclusion and decline here to be guided by Doggett

421 U.S. 794

Jack Roland MURPHY, Petitioner,
v.
State of FLORIDA.

44 L.Ed.2d 589

United States Supreme Court

June 16, 1975

Syllabus

Petitioner, who was convicted in state court of robbery contends in this habeas corpus proceeding that he was denied a fair trial because jurors had learned from news accounts of prior felony convictions or certain facts about the robbery charge. In the course of jury selection 78 members of the panel were questioned, 70 being excused (30 for personal reasons, 20 peremptorily, and 20 by the court as having prejudged petitioner), and eight being selected (including two alternates). The District Court and the Court of Appeals denied relief. Held:

1. Juror exposure to information about a state defendant's prior convictions or to news accounts of the crime with which he is charged to not alone presumptively deprive the defendant of due process. Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751; Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663; Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543; Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600, distinguished. Pp. 797-799.

2. The voir dire in this case indicates no such juror hostility to petitioner as to suggest a partiality that could not be laid aside. Though some jurors vaguely recalled the robbery and each had some knowledge of petitioner's past crimes, none betrayed any belief in the relevance to the roberry case of petitioner's past, and there was no indication from the circumstances surrounding petitioner's trial or from the number of the panel excused for prejudgment of petitioner, of inflamed community sentiment to counter the indicia of impartiality disclosed by the voir dire transcript. Thus, in the totality of the circumstances, petitioner failed to show inherent prejudice in the trial setting or actual prejudice from the jury-selection process. Pp. 799-803.

The question presented by this case is whether the petitioner was denied a fair trial because members of the jury had learned from news accounts about a prior felony conviction or certain facts about the crime with which he was charged. Under the circumstances of this case, we find that petitioner has not been denied due process, and we therefore affirm the judgment below.

I

* Petitioner was convicted in the Dade County, Fla., Criminal Court in 1970 of breaking and entering a home, while armed, with intent to commit robbery and of assault with intent to commit robbery. The charges stemmed from the January 1968 robbery of a Miami Beach home and petitioner's apprehension, with three others, while fleeing from the scene.

The robbery and petitioner's arrest received extensive press coverage because petitioner had been much in the news before. He had first made himself notorious for his part in the 1964 theft of the Star of India sapphire from a museum in New York. His flamboyant lifestyle made him a continuing subject of press interest; he was generally referred to—at least in the media—as 'Murph the Surf.'

Before the date set for petitioner's trial on the instant charges, he was indicted on two counts of murder in Broward County, Fla. Thereafter the Dade County court declared petitioner mentally incompetent to stand trial; he was committed to a hospital and the prosecutor nolle prossed the robbery indictment. In August 1968 he was indicted by a federal grand jury for conspiring to transport stolen securities in interstate commerce. After petitioner was adjudged competent for trial, he was convicted on one count of murder in Broward County (March 1969) and pleaded guilty to one count of the federal indictment involving stolen securities (December 1969). The indictment for robbery was refiled in August 1969 and came to trial one year later.

The events of 1968 and 1969 drew extensive press coverage. Each new case against petitioner was considered newsworthy, not only in Dade County but elsewhere as well.1 The record in this case contains scores of articles reporting on petitioner's trials and tribulations during this period; many purportedly relate statements that petitioner or his attorney made to reporters.

Jury selection in the present case began in August 1970. Seventy-eight jurors were questioned. Of these, 30 were excused for miscellaneous personal reasons; 20 were excused peremptorily by the defense or prosecution; 20 were excused by the court as having prejudged petitioner; and the remaining eight served as the jury and two alternates. Petitioner's motions to dismiss the chosen jurors, on the ground that they were aware that he had previously been convicted of either the 1964 Star of India theft or the Broward County murder, were denied, as was his renewed motion for a change of venue based on allegedly prejudicial pretrial publicity.

At trial, petitioner did not testify or put in any evidence; assertedly in protest of the selected jury, he did not cross-examine any of the State's witnesses. He was convicted on both counts, and after an unsuccessful appeal he sought habeas corpus relief in the District Court for the Southern District of Florida.

The District Court denied petitioner relief, D.C.Fla., 363 F.Supp. 1224 (1973), and the Court of Appeals for the Fifth Circuit affirmed. 495 F.2d 553 (1974). We granted certiorari, 419 U.S. 1088, 95 S.Ct. 677, 42 L.Ed.2d 680 (1974), in order to resolve the apparent conflict between the decision below and that of the Third Circuit in United States ex rel. Doggett v. Yeager, 472 F.2d 229 (1973), over the applicability of Marshall v. United States, 360 U.S. 310, 79 S.Ct. 1171, 3 L.Ed.2d 1250 (1959), to state criminal proceedings.

II

The defendant in Marshall was convicted of dispensing certain drugs without a prescription. In the course of the trial seven of the jurors were exposed to various news accounts relating that Marshall had previously been convicted of forgery, that he and his wife had been arrested for other narcotics offenses, and that he had for some time practiced medicine without a license. After interviewing the jurors, however, the trial judge denied a motion for a mistrial, relying on the jurors' assurances that they could maintain impartiality in spite of the news articles.

Noting that the jurors had been exposed to information with a high potential for prejudice, this Court reversed the conviction. It did so, however, expressly '(i)n the exercise of (its) supervisory power to formulate and apply proper standards for enforcement of the criminal law in the federal courts,' and not as a matter of constitutional compulsion. Id., at 313, 79 S.Ct., at 1173.

In the face of so clear a statement, it cannot be maintained that Marshall was a constitutional ruling now applicable, through the Fourteenth Amendment, to the States. Petitioner argues, nonetheless that more recent decisions of this Court have applied to state cases the principle underlying the Marshall decision:2 that persons who have learned from news sources of a defendant's prior criminal record are presumed to be prejudiced. We cannot agree that Marshall has any application beyond the federal courts.

Petitioner relies principally upon Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961), Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963), Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965), and Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966). In each of these cases, this Court overturned a state-court conviction obtained in a trial atmosphere that had been utterly corrupted by press coverage.

In Irvin v. Dowd the rural community in which the trial was held had been subjected to a barrage of inflammatory publicity immediately prior to trial, including information on the defendant's prior convictions, his confession to 24 burglaries and six murders including the one for which he was tried, and his unaccepted offer to plead guilty in order to avoid the death sentence. As a result, eight of the 12 jurors had formed an opinion that the defendant was guilty before the trial began; some went 'so far as to say that it would take evidence to overcome their belief' in his guilt. 366 U.S., at 728, 81 S.Ct., at 1645. In these circumstances, the Court readily found actual prejudice against the petitioner to a degree that rendered a fair trial impossible.

Prejudice was presumed in the circumstances under which the trials in Rideau, Estes, and Sheppard were held. In those cases the influence of the news media, either in the community at large or in the courtroom itself, pervaded the proceedings. In Rideau the defendant had 'confessed' under police interrogation to the murder of which he stood convicted. A 20-minute film of his confession was broadcast three times by a television station in the community where the crime and the trial took place. In reversing, the Court did not examine the voir dire for evidence of actual prejudice because it considered the trial under review 'but a hollow formality'—the real trial had occurred when tens of thousands of people, in a community of 150,000, had seen and heard the defendant admit his guilt before the cameras.

The trial in Estes had been conducted in a circus atmosphere, due in large part to the intrusions of the press, which was allowed to sit within the bar of the court and to overrun it with television equipment. Similarly, Sheppard arose from a trial infected not only by a background of extremely inflammatory publicity but also by a courthouse given over to accommodate the public appetite for carnival. The proceedings in these cases were entirely lacking in the solemnity and sobriety to which a defendant is entitled in a system that subscribes to any notion of fairness and rejects the verdict of a mob. They cannot be made to stand for the proposition that juror exposure to information about a state defendant's prior convictions or to news accounts of the crime with which he is charged alone presumptively deprives the defendant of due process. To resolve this case, we must turn, therefore, to any indications in the totality of circumstances that petitioner's trial was not fundamentally fair.

III

The constitutional standard of fairness requires that a defendant have 'a panel of impartial, 'indifferent' jurors.' Irvin v. Dowd, 366 U.S. at 722, 81 S.Ct. at 1642. Qualified jurors need not, however, be totally ignorant of the facts and issues involved.

'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.' Id., at 723, 81 S.Ct. at 1642.

At the same time, the juror's assurances that he is equal to this task cannot be dispositive of the accused's rights, and it remains open to the defendant to demonstrate 'the actual existence of such an opinion in the mind of the juror as will raise the presumption of partiality.' Ibid.

The voir dire in this case indicates no such hostility to petitioner by the jurors who served in his trial as to suggest a partiality that could not be laid aside. Some of the jurors had a vague recollection of the robbery with which petitioner was charged and each had some knowledge of petitioner's past crimes,3 but none betrayed any belief in the relevance of petitioner's past to the present case.4 Indeed, four of the six jurors volunteered their views of its irrelevance, and one suggested that people who have been in trouble before are too often singled out for suspicion of each new crime—a predisposition that could only operate in petitioner's favor.

In the entire voir dire transcript furnished to us, there is only one colloquy on which petitioner can base even a colorable claim of partiality by a juror. In response to a leading and hypothetical question, presupposing a two- or three-week presentation of evidence against petitioner and his failure to put on any defense, one juror conceded that his prior impression of petitioner would dispose him to convict.5 We cannot attach great significance to this statement, however, in light of the leading nature of counsel's questions and the juror's other testimony indicating that he had no deep impression of petitioner at all.

The juror testified that he did not keep up with current events and, in fact, had never heard of petitioner until he arrived in the room for prospective jurors where some veniremen were discussing him. He did not know that petitioner was 'a convicted jewel thief' even then; it was petitioner's counsel who informed him of this fact. And he volunteered that petitioner's murder conviction, of which he had just heard, would not be relevant to his guilt or innocence in the present case, since '(w)e are not trying him for murder.'

Even these indicia of impartiality might be disregarded in a case where the general atmosphere in the community or courtroom is sufficiently inflammatory, but the circumstances surrounding petitioner's trial are not at all of that variety. Petitioner attempts to portray them as inflammatory by reference to the publicity to which the community was exposed. The District Court found, however, that the news articles concerning petitioner had appeared almost entirely during the period between December 1967 and January 1969, the latter date being seven months before the jury in this case was selected. 363 F.Supp., at 1228. They were, moreover, largely factual in nature. Compare Beck v. Washington, 369 U.S. 541, 82 S.Ct. 955, 8 L.Ed.2d 98 (1962), with Sheppard v. Maxwell, supra.

The length to which the trial court must go in order to select jurors who appear to be impartial is another factor relevant in evaluating those jurors' assurances of impartiality. In a community where most veniremen will admit to a disqualifying prejudice, the reliability of the others' protestations may be drawn into question; for it is then more probable that they are part of a community deeply hostile to the accused, and more likely that they may unwittingly have been influenced by it. In Irvin v. Dowd, for example, the Court noted that 90% of those examined on the point were inclined to believe in the accused's guilt, and the court had excused for this cause 268 of the 430 veniremen. In the present case, by contrast, 20 of the 78 persons questioned were excused because they indicated an opinion as to petitioner's guilt.6 This may indeed be 20 more than would occur in the trial of a totally obscure person, but it by no means suggests a community with sentiment so poisoned against petitioner as to impeach the indifference of jurors who displayed no animus of their own.

In sum, we are unable to conclude, in the circumstances presented in this case, that petitioner did not receive a fair trial. Petitioner has failed to show that the setting of the trial was inherently prejudicial or that the jury-selection process of which he complains permits an inference of actual prejudice. The judgment of the Court of Appeals must therefore be affirmed.

Judgment affirmed.

*****

Mr. Chief Justice BURGER, concurring in the judgment.

I agree with Mr. Justice BRENNAN 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.

*****

Mr. Justice BRENNAN, dissenting.

I dissent. Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961), requires reversal of this conviction. As in that case, petitioner here was denied a fair trial. The risk that taint of widespread publicity regarding his criminal background, known to all members of the jury, infected the jury's deliberations is apparent, the trial court made no attempt to prevent discussion of the case or petitioner's previous criminal exploits among the prospective jurors, and one juror freely admitted that he was predisposed to convict petitioner.

During voir dire, petitioner's counsel had the following colloquy with that juror:

'Q. Now, when you go into that jury room and you decide upon Murphy's guilt or innocence, you are going to take into account that fact that he is a convicted murderer; aren't you?

'A. Not if we are listening to the case, I wouldn't.

'Q. But you know about it?

A. How can you not know about it?

'Q. Fine, thank you.

'When you go into the jury room, the fact that he is a convicted murderer, that is going to influence your verdict; is it not?

'A. We are not trying him for murder.

'Q. The fact that he is a convicted murderer and jewel thief, that would influence your verdict? 'A. I didn't know he was a convicted jewel thief.

'Q. Oh, I see.

'I am sorry I put words in your mouth.

'Now, sir, after two or three weeks of being locked up in a downtown hotel, as the Court determines, and after hearing the State's case, and after hearing no case on behalf of Murphy, and hearing no testimony from Murphy saying, 'I am innocent, Mr. (Juror)'—when you go into the jury room, sir, all these facts are going to influence your verdict?

'A. I imagine it would be.

'Q. And in fact, you are saying if Murphy didn't testify, and if he doesn't offer evidence, 'My experience of him is such that right now I would find him guilty.'

'A. I believe so.'

I cannot agree with the Court that the obvious bias of this juror may be overlooked simply because the juror's response was occasioned by a 'leading and hypothetical question,' ante, at 801. Indeed, the hypothetical became reality when petitioner chose not to take the stand and offered no evidence. Thus petitioner was tried by a juror predisposed, because of his knowledge of petitioner's previous crimes, to find him guilty of this one.

Others who ultimately served as jurors revealed similar prejudice toward petitioner on voir dire. One juror conceded that it would be difficult, during deliberations, to put out of his mind that petitioner was a convicted criminal. He also admitted that he did not 'hold a convicted felon in the same regard as another person who has never been convicted of a felony,' and admitted further that he had termed petitioner a 'menace.'

A third juror testified that she knew from several sources that petitioner was a convicted murderer,1 and was aware that the community regarded petitioner as a criminal who 'should be put away.' She disclaimed having a fixed opinion about the result she would reach, but acknowledged that the fact that petitioner was a convicted criminal would probably influence her verdict: 'A. Probably not.

'Q. And it would influence your verdict; right?

'A. Probably.'

Still another juror testified that the comments of venire members in discussing the case had made him 'sick to (his) stomach.' He testified that one venireman had said that petitioner was 'thoroughly rotten,' and that another had said: 'Hang him, he's guilty.'2

Moreover, the Court ignores the crucial significance of the fact that at no time before or during this daily buildup of prejudice against Murphy did the trial judge instruct the prospective jurors not to discuss the case among themselves. Indeed the trial judge took no steps to insulate the jurors from media coverage of the case or from the many news articles that discussed petitioner's last criminal exploits.

It is of no moment that several jurors ultimately testified that they would try to exclude from their deliberations their knowledge of petitioner's past misdeeds and of his community reputation. Irvin held in like circumstances that little weight could be attached to such selfserving protestations:

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. Where so many, so many times, admitted prejudice, such a statement of impartiality can be given little weight. As one of the jurors put it, 'You can't forget what you hear and see." 366 U.S., at 728, 81 S.Ct. at 1645.

On the record of this voir dire, therefore, the conclusion is to me inescapable that the attitude of the entire venire toward Murphy reflected the 'then current community pattern of thought as indicated by the popular news media,' id., at 725, 81 S.Ct. at 1644, and was infected with the taint of the view that he was a 'criminal' guilty of notorious offenses, including that for which he was on trial. It is a plain case, from a review of the entire voir dire, where 'the extent and nature of the publicity has caused such a buildup of prejudice that excluding the preconception of guilt from the deliberations would be too difficult for the jury to be honestly found impartial.' United States ex rel. Bloeth v. Denno, 2 Cir., 313 F.2d 364, 372 (CA2 1963). In my view, the denial of a change of venue was therefore prejudicial error, and I would reverse the conviction.

*****

1

2

This was the theory adopted by the Third Circuit in United States ex rel. Deggett v. Yeager, 472 F.2d 229 (1973).

3

One juror who did not know that petitioner had been previously convicted for the theft of the Star of India sapphire, one who did not know of the murder conviction, and one who had never heard about the securities case were informed about them by petitioner's counsel, who then asked whether that knowledge would not prejudice them against petitioner. We will not readily discount the assurances of a juror insofar as his exposure to a defendant's past crimes comes from the defendant or counsel. We note also, and disapprove counsel's habitual references to his client, at voir dire, as 'Murph the Surf' rather than by his name.

4

We must distinguish between mere familiarity with petitioner or his past and an actual predisposition against him, just as we have in the past distinguished largely factual publicity from that which is invidious or inflammatory. E.g., Beck v. Washington, 369 U.S. 541, 556, 82 S.Ct. 955, 963, 8 L.Ed.2d 98 (1962). To ignore the real differences in the potential for prejudice would not advance the cause of fundamental fairness, but only make impossible the timely prosecution of persons who are well known in the community, whether they be notorious or merely prominent.

5

The entire exchange appears at App. 139:

'Q. Now, when you go into that jury room and you decide upon Murphy's guilt on innocence, you are going to take into account that fact that he is a convicted murderer; aren't you?

'A. Not if we are listening to the case, I wouldn't.

'Q. But you know about it?

'A. How can you not know about it?

'Q. Fine, thank you.

'When you go into the jury room, the fact that he is a convicted murderer, that is going to influence your verdict; is it not?

'A. We are not trying him for murder.

'Q. The fact that he is a convicted murderer and jewel thief, that would influence your verdict?

'A. I didn't know he was a convicted jewel thief.

'Q. Oh, I see.

'I am sorry I put words in your mouth.

'Now, sir, after two or three weeks of being locked up in a downtown hotel, as the Court determines, and after hearing the State's case, and after hearing no case on behalf of Murphy, and hearing no testimony from Murphy saying, 'I am innocent, Mr. (juror's name),'—when you go into the jury room, sir, all these facts are going to influence your verdict?

'A. I imagine it would be.

'Q. And in fact, you are saying if Murphy didn't testify, and if he doesn't offer evidence, 'My experience of him is such that right now I would find him guilty.'

'A. I believe so.'

6

1

The juror stated that she acquired a portion of her knowledge of petitioner's criminal background from an article in that week's Miami Herald entitled, 'Defense Exhausts Jury Challenges in Murphy Trial,' which included the sentence: 'Jury selection will continue today in the trial of beach boy hoodlum serving a life sentence for murder in connection with the Whisky Creek slaying of two secretaries in 1968.'

'Q. Now, if you go into that jury room and deliberate with your fellow jurors, in your deliberations, will you consider the fact that Murphy is a convicted murderer and jewel thief?

'A. Well, he has been convicted of murder. So, I guess that is what I would—

'Q. You would consider that in your verdict, right?

'A. Right.

'Q. And that would influence your verdict; would it not?

'A. If that is what you say, I guess it would.

'Q. I am not concerned about what I say, because if I said it, they wouldn't print it. It would influence your verdict?

'A. It probably would.

'Q. When you go into that jury room, you cannot forget the fact that it is Murph the Surf; that he is a convicted murderer, and a jewel thief—you can't put that out of your mind, no matter what they tell you; can you, ma'am?

2

A juror chosen as an alternate testified that she did not know whether she 'would give the same fair and impartial treatment to a convicted killer as (she) would to another person.' She added that she did not know whether she could be fair and impartial in her deliberations in the case:

'Q. The question is, would you compromise your verdict; could you go there—and say the State proved his guilt and the defense proved that he was insane, but, 'I'm not going to let that guy walk the streets, so I'm going to find him guilty, period?'

'Would you do that?

'A. I don't know at this point.

'Q. Right.

'So in fact, ma'am, at this point you cannot tell us whether you can give a fair and impartial deliberation about Murphy, number one, because of the lack of evidence; and number two, because of what you know about Murphy; isn't that a fact?

'A. Yes.'