III. VOIR DIRE EXAMINATION OF VENIREMEN
Defendant contends that I abused my discretion during the jury selection process by (1) refusing his motion to allow counsel, rather than the court, to conduct the voir dire ; (2) refusing to ask prospective jurors all the questions submitted by his counsel; (3) propounding questions insufficiently geared to ascertain bias or prejudice, and thus preventing him from intelligently exercising his preemptory challenges; and (4) refusing to strike one venireman for cause on the basis of his responses to my questions.
"The purpose of voir dire examination is to safeguard the right to jury trial which 'guarantees to the criminal accused a fair trial by a panel of impartial, "indifferent" jurors.'" United States v. Liddy, supra, U.S. App. D.C. at, 509 F.2d at 434; see Irvin v. Dowd, 366 U.S. 717, 722, 81 S. Ct. 1639, 1642 (1961). The impartiality requirement demands that voir dire act as a filter capable of screening out those prospective jurors unable to lay aside any opinion as to guilt or innocence and render a verdict based on the evidence. Id. at 723, 81 S. Ct. 1643; United States v. Liddy, supra, U.S. App. D.C. at, 509 F.2d at 434. Under Rule 24(a), Fed. R. Crim. P., a trial judge has broad discretion to mold the manner and mode of voir dire to meet the demands of the case at bar, and can be reversed only for an abuse of discretion which is substantially prejudicial to the accused. Id. at, 509 F.2d at 434-35; United States v. Bamberger, 456 F.2d 1119, 1129 (3rd Cir.), cert. denied sub nom. Elam v. United States, 406 U.S. 969, 92 S. Ct. 2424 (1972), and Crapps v. United States, 406 U.S. 969, 92 S. Ct. 2424, and 413 U.S. 919, 93 S. Ct. 3067 (1973).
The short answer to defendant's first objection is that absent an abuse of discretion, refusal to allow counsel to conduct voir dire examination is not error. United States v. Addonizio, 451 F.2d 49, 65-66 (3d Cir. 1971), cert. denied, 405 U.S. 936, 92 S. Ct. 949 (1972), reh. denied, 405 U.S. 1048, 92 S. Ct. 1309. Examination of prospective jurors by the trial judge conforms to Rule 24(a), Fed. R. Crim. P.,
and is the standard practice in most federal district courts, see The Jury System in the Federal Courts, Report of the Judicial Conference Committee on the Operation of the Jury System, 26 F.R.D. 409, 466 (1960); United States v. Addonizio, supra, 451 F.2d at 65; see also Campbell, Delays in Criminal Cases, 55 F.R.D. 229, 247 (1972).
With respect to defendant's second and third objections, concerning the questions propounded individually to each venireman, statement of a few additional facts is appropriate. On the morning that jury selection was to commence, defense counsel submitted a pleading entitled "Individual Voir Dire." This document contained over 60 questions, in addition to the forty which I already intended to ask and copies of which I previously had furnished to counsel for both sides. Many of the proposed additional questions were redundant or irrelevant; few were helpful. Counsel and I spent all morning and part of the afternoon in my chambers discussing these questions and attempting to achieve some compromise. At length I settled upon some approximately fifty-five questions to be propounded to each juror individually. The jury selection process extended over the period of one week. The prospective jurors were segregated from the remainder of the veniremen, and each was examined individually and out of the hearing of the others, see United States v. Addonizio supra, 451 F.2d at 67; A.B.A. Standards Relating to Fair Trial and Free Press § 3.4(a) (Approved Draft, March 1968). Moreover, whenever a venireman responded to a question in a manner which I felt called for some elaboration I asked him such additional questions as were necessary to clarify his initial response.
In Ham v. South Carolina, 409 U.S. 524, 527, 93 S. Ct. 848, 850 (1973), the Supreme Court held that although a trial judge is constitutionally compelled, where requested, to inquire into the possibility of racial prejudice on voir dire,
he is not required to put the question in any particular form, or to ask any particular number of questions on the subject simply because he is requested to do so by the defendant. See also Featherston v. United States, 491 F.2d 96 (5th Cir.), cert. denied, 417 U.S. 971, 94 S. Ct. 3176 (1974); Ross v. Ristaino, 508 F.2d 754, 757 (1st Cir. 1974); United States v. Addonizio, supra, 451 F.2d at 66. Appended to this opinion are the interrogatories ultimately put to each prospective juror, (Appendix A) and those proposed by the defense (Appendix B). Even a cursory comparison of the two demonstrates that the questions I propounded provided a comprehensive and exhaustive inquiry into each prospective juror's possible bias or prejudice with respect to air travel (#12) and the airlines industry (#14-16); psychiatry (#34, 35) and the insanity defense (#36-38); foreign students (#43, 44) and students who advocate revolution (#46); and the defendant's race (#45) and nation of his origin (#47). Such a thorough interrogation plainly did not constitute an abuse of discretion.
Defendant's final contention with respect to jury selection stems from my refusal to dismiss for cause a venireman who admitted having certain negative opinions and prejudice concerning psychiatry and the insanity defense, foreigners, and persons favoring revolution. In each instance I thereupon asked whether he nevertheless could put aside his feelings and decide the case solely on the basis of the evidence produced in court and my instructions, and in each instance, he responded affirmatively. I therefore refused defendant's motion to challenge for cause, although his counsel later exercised a preemptory challenge to excuse that venireman.
The test that I applied was that laid down in Irvin v. Dowd, 366 U.S. 717, 723, 81 S. Ct. 1639, 1642-43 (1961), wherein the Court stated:
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: Spies v. People of State of Illinois, 123 U.S. 131, 8 S. Ct. 22, 31 L. Ed. 80; Holt v. United States, 218 U.S. 245, 31 S. Ct. 2, 54 L. Ed. 1021; Reynolds v. United States, [98 U.S. 145, 155, 25 L. Ed. 244].
See also United States v. McNally, 485 F.2d 398, 403 (8th Cir. 1973), cert. denied, 415 U.S. 978, 94 S. Ct. 1566 (1974); Johnson v. United States, 484 F.2d 309, 310 (8th Cir.), cert. denied, 414 U.S. 1039, 94 S. Ct. 539 (1973). Thus, although defendant perhaps wisely elected to exercise his preemptory challenge, an insufficient basis existed for me to grant his motion to strike for cause.
IV. QUALIFICATION OF THE GOVERNMENT PSYCHOLOGIST
Defendant's final argument is that I erred in accepting the testimony of the Government psychologist, Albert Levitt, on the issue of defendant's sanity. Specifically, defendant contends that not only did Mr. Levitt fail to possess the special qualifications essential to an expert witness, but that his opinion was based on conjecture and guesswork rather than valid and accepted testing procedures.
It is of more than passing interest that at the May, 1973, competency proceeding, defense counsel was willing to stipulate that Mr. Levitt was eminently qualified. Moreover, in United States v. Green, supra, 373 F. Supp. at 157-58, I concluded that Mr. Levitt was qualified to testify as to the competency of Tesfa's co-defendant, and in its unpublished per curiam affirmance, the Court of Appeals held that my conclusion was not erroneous.
The initial question of whether an expert witness possesses sufficient capacity and qualifications to testify is, of course, within the discretion of the trial judge. United States v. Trice, 476 F.2d 89, 91 (9th Cir.), cert. denied sub nom. Clayton v. United States, 414 U.S. 843, 94 S. Ct. 103 (1973). Clearly, the testimony of psychologists, as well as psychiatrists, is admissible on the question of insanity. United States v. Brawner, 153 U.S. App. D.C. 1, 471 F.2d 969, 994 (en banc, 1972); Jenkins v. United States, 113 U.S. App. D.C. 300, 307 F.2d 637, 643 (en banc, 1962). As Judge Bazelon pointed out in Jenkins :
The critical factor in respect to admissibility is the actual experience of the witness and the probable probative value of his opinion . . .