Mu'Min v. Virginia/Opinion of the Court
Petitioner Dawud Majid Mu'Min was convicted of murdering a woman in Prince William County, Virginia, while out of prison on work detail, and was sentenced to death. The case engendered substantial publicity, and 8 of the 12 venirepersons eventually sworn as jurors answered on voir dire that they had read or heard something about the case. None of those who had read or heard something indicated that they had formed an opinion based on the outside information, or that it would affect their ability to determine petitioner's guilt or innocence based solely on the evidence presented at trial. Petitioner contends, however, that his Sixth Amendment right to an impartial jury and his right to due process under the Fourteenth Amendment were violated because the trial judge refused to question further prospective jurors about the specific contents of the news reports to which they had been exposed. We reject petitioner's submission.
Mu'Min was an inmate at the Virginia Department of Corrections' Haymarket Correctional Unit serving a 48-year sentence for a 1973 first-degree murder conviction. On September 22, 1988, he was transferred to the Virginia Department of Transportation (VDOT) Headquarters in Prince William County and assigned to a work detail supervised by a VDOT employee. During his lunch break, he escaped over a perimeter fence at the VDOT facility and made his way to a nearby shopping center. Using a sharp instrument that he had fashioned at the VDOT shop, Mu'Min murdered and robbed Gladys Nopwasky, the owner of a retail carpet and flooring store. Mu'Min then returned to his prison work crew at the VDOT, discarding his bloodied shirt and the murder weapon near the highway.
About three months before trial, petitioner submitted to the trial court, in support of a motion for a change of venue, 47 newspaper articles relating to the murder.  One or more of the articles discussed details of the murder and investigation, and included information about petitioner's prior criminal record (App. 963-969), the fact that he had been rejected for parole six times (id., at 923, 942), accounts of alleged prison infractions (id., at 921, 931, 942), details about the prior murder for which Mu'Min was serving his sentence at the time of this murder (id., at 948, 951), a comment that the death penalty had not been available when Mu'Min was convicted for this earlier murder (id., at 948), and indications that Mu'Min had confessed to killing Gladys Nopwasky (id., at 975). Several articles focused on the alleged laxity in the supervision of work gangs (id., at 922-924, 930-931), and argued for reform of the prison work-crew system (id., at 974). The trial judge deferred ruling on the venue motion until after making an attempt to seat a jury (Joint Appendix 8-15 (J.A.)).
Shortly before the date set for trial, petitioner submitted to the trial judge 64 proposed voir dire questions  (id., at 2-7) and filed a motion for individual voir dire. The trial court denied the motion for individual voir dire; it ruled that voir dire would begin with collective questioning of the venire, but the venire would be broken down into panels of four, if necessary, to deal with issues of publicity (id., at 16-17). The trial court also refused to ask any of petitioner's proposed questions relating to the content of news items that potential jurors might have read or seen.
Twenty-six prospective jurors were summoned into the courtroom and questioned as a group (id., at 42-66). When asked by the judge whether anyone had acquired any information about the alleged offense or the accused from the news media or from any other source, 16 of the potential jurors replied that they had (id., at 46-47). The prospective jurors were not asked about the source or content of prior knowledge, but the court then asked the following questions:
read from whatever source, would that information affect your impartiality in this case?
"Is there anyone that would say what you've read, seen, heard, or whatever information you may have acquired from whatever the source would affect your impartiality so that you could not be impartial?
. . . . .
"Considering what the ladies and gentlemen who have answered in the affirmative have heard or read about this case, do you believe that you can enter the Jury box with an open mind and wait until the entire case is presented before reaching a fixed opinion or conclusion as to the guilt or innocence of the accused?
. . . . .
". . . In view of everything that you've seen, heard, or read, or any information from whatever source that you've acquired about this case, is there anyone who believes that you could not become a Juror, enter the Jury box with an open mind and wait until the entire case is presented before reaching a fixed opinion or a conclusion as to the guilt or innocence of the accused?" (Id., at 47-48.)
One of the 16 panel members who admitted to having prior knowledge of the case answered in response to these questions that he could not be impartial, and was dismissed for cause (id., at 48-49). Petitioner moved that all potential jurors who indicated that they had been exposed to pretrial publicity be excused for cause (id., at 68). This motion was denied (id., at 69), as was petitioner's renewed motion for a change of venue based on the pretrial publicity (id., at 71).
The trial court then conducted further voir dire of the prospective jurors in panels of four (id., at 72-94). Whenever a potential juror indicated that he had read or heard something about the case, the juror was then asked whether he had formed an opinion, and whether he could nonetheless be impartial. None of those eventually seated stated that he had formed an opinion, or gave any indication that he was biased or prejudiced against the defendant. All swore that they could enter the jury box with an open mind and wait until the entire case was presented before reaching a conclusion as to guilt or innocence.
If any juror indicated that he had discussed the case with anyone, the court asked follow-up questions to determine with whom the discussion took place, and whether the juror could have an open mind despite the discussion. One juror who equivocated as to whether she could enter the jury box with an open mind was removed sua sponte by the trial judge (id., at 90). One juror was dismissed for cause because she was not "as frank as she could [be]" concerning the effect of her feelings toward members of the Islamic Faith and toward defense counsel (id., at 81). One juror was dismissed because of her inability to impose the death penalty (id., at 86-87), while another was removed based upon his statement that upon a finding of capital murder, he could not consider a penalty less than death (App. 339-341). The prosecution and the defense each peremptorily challenged 6 potential jurors, and the remaining 14 were seated and sworn as jurors (two as alternates). Petitioner did not renew his motion for change of venue or make any other objection to the composition of the jury. Of the 12 jurors who decided petitioner's case, 8 had at one time or another read or heard something about the case. None had indicated that he had formed an opinion about the case or would be biased in any way.
The jury found petitioner guilty of capital murder and recommended that he be sentenced to death. After taking the matter under advisement and reviewing a presentence report, the trial judge accepted the jury's recommendation and sentenced Mu'Min to death. Mu'Min appealed, contending that he was entitled to a new trial as a result of the judge's failure to permit the proposed voir dire questions. By a divided vote, the Supreme Court of Virginia affirmed his conviction and sentence, finding that, while a criminal defendant may properly ask on voir dire whether a juror has previously acquired any information about the case, the defendant does not have a constitutional right to explore the content of the acquired information. Rather, an accused is only entitled to know whether the juror can remain impartial in light of the previously obtained information. 239 Va. 433, 443, 389 S.E.2d 886, 893 (1990). We granted certiorari, 498 U.S. ----, 111 S.Ct. 242, 112 L.Ed.2d 202 (1990), and now affirm.
Our cases dealing with the requirements of voir dire are of two kinds: those that were tried in federal courts, and are therefore subject to this Court's supervisory power, see Rosales-Lopez v. United States, 451 U.S. 182, 101 S.Ct. 1629, 68 L.Ed.2d 22 (1981); Aldridge v. United States, 283 U.S. 308, 51 S.Ct. 470, 75 L.Ed. 1054 (1931); and Connors v. United States, 158 U.S. 408, 15 S.Ct. 951, 39 L.Ed. 1033 (1895); and those that were tried in state courts, with respect to which our authority is limited to enforcing the commands of the United States Constitution. See Turner v. Murray, 476 U.S. 28, 106 S.Ct. 1683, 90 L.Ed.2d 27 (1986); Ristaino v. Ross, 424 U.S. 589, 96 S.Ct. 1017, 47 L.Ed.2d 258 (1976); and Ham v. South Carolina, 409 U.S. 524, 93 S.Ct. 848, 35 L.Ed.2d 46 (1973).
A brief review of these cases is instructive. In Connors, we said:
"[A] suitable inquiry is permissible in order to ascertain whether the juror has any bias, opinion, or prejudice that would affect or control the fair determination by him of the issues to be tried. That inquiry is conducted under the supervision of the court, and a great deal must, of necessity, be left to its sound discretion. This is the rule in civil cases, and the same rule must be applied in criminal cases." 158 U.S., at 413, 15 S.Ct., at 953.
In Aldridge v. United States, 283 U.S. 308, 51 S.Ct. 470, 75 L.Ed. 1054 (1931), counsel for a black defendant sought to have the Court put a question to the jury as to whether any of them might be prejudiced against the defendant because of his race. We held that it was reversible error for the Court not to have put such a question, saying "[t]he Court failed to ask any question which could be deemed to cover the subject." Id., at 311, 51 S.Ct., at 472. More recently, in Rosales-Lopez v. United States, supra, we held that such an inquiry as to racial or ethnic prejudice need not be made in every case, but only where the defendant was accused of a violent crime and the defendant and the victim were members of different racial or ethnic groups. We said:
"Because the obligation to empanel an impartial jury lies in the first instance with the trial judge, and because he must rely largely on his immediate perceptions, federal judges have been accorded ample discretion in determining how best to conduct the voir dire." Id., 451 U.S., at 189, 101 S.Ct., at 1634.
Three of our cases dealing with the extent of voir dire examination have dealt with trials in state courts. The first of these was Ham v. South Carolina, supra. In that case, the defendant was black and had been active in the civil rights movement in South Carolina; his defense at trial was that enforcement officers were "out to get him" because of his civil rights activities, and that he had been framed on the charge of marijuana possession of which he was accused. He requested that two questions be asked regarding racial prejudice and one question be asked regarding prejudice against persons, such as himself, who wore beards. We held that the Due Process Clause of the Fourteenth Amendment required the court to ask "either of the brief, general questions urged by the petitioner" with respect to race, id., 409 U.S., at 527, 93 S.Ct., at 851, but rejected his claim that an inquiry as to prejudice against persons with beards be made, "[g]iven the traditionally broad discretion accorded to the trial judge in conducting voir dire. . . ." Id., at 528, 93 S.Ct., at 851.
In Ristaino v. Ross, supra, we held that the Constitution does not require a state court trial judge to question prospective jurors as to racial prejudice in every case where the races of the defendant and the victim differ, but in Turner v. Murray, supra, we held that in a capital case involving a charge of murder of a white person by a black defendant such questions must be asked.
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. But, two parallel themes emerge from both sets of cases: first, the possibility of racial prejudice against a black defendant charged with a violent crime against a white person is sufficiently real that the Fourteenth Amendment requires that inquiry be made into racial prejudice; second, the trial court retains great latitude in deciding what questions should be asked on voir dire. As we said in Rosales-Lopez, supra:
"Despite its importance, the adequacy of voir dire is not easily subject to appellate review. The trial judge's function at this point in the trial is not unlike that of the jurors later on in the trial. Both must reach conclusions as to impartiality and credibility by relying on their own evaluations of demeanor evidence and of responses to questions." Id., 451 U.S., at 188, 101 S.Ct., at 1634.
Petitioner asserts that the Fourteenth Amendment requires more in the way of voir dire with respect to pretrial publicity than our cases have held that it does with respect to racial or ethnic prejudice. Not only must the Court "cover the subject," Aldridge, supra, 283 U.S., at 311, 51 S.Ct., at 472, but it must make precise inquiries about the contents of any news reports that potential jurors have read. Petitioner argues that these "content" questions would materially assist in obtaining a jury less likely to be tainted by pretrial publicity than one selected without such questions. There is a certain common sense appeal to this argument.
Undoubtedly, if counsel were allowed to see individual jurors answer questions about exactly what they had read, a better sense of the juror's general outlook on life might be revealed, and such a revelation would be of some use in exercising peremptory challenges. But, since peremptory challenges are not required by the Constitution, Ross v. Oklahoma, 487 U.S. 81, 88, 108 S.Ct. 2273, 2278, 101 L.Ed.2d 80 (1988), this benefit cannot be a basis for making "content" questions about pretrial publicity a constitutional requirement. Such questions might also have some effect in causing jurors to re-evaluate their own answers as to whether they had formed any opinion about the case, but this is necessarily speculative.
Acceptance of petitioner's claim would require that each potential juror be interrogated individually; even were the interrogation conducted in panels of four jurors, as the trial court did here, descriptions of one juror about pretrial publicity would obviously be communicated to the three other members of the panel being interrogated, with the prospect that more harm than good would be done by the interrogation. Petitioner says that the questioning can be accomplished by juror questionnaires submitted in advance at trial, but such written answers would not give counsel or the court any exposure to the demeanor of the juror in the course of answering the content questions. The trial court in this case expressed reservations about interrogating jurors individually because it might make the jurors feel that they themselves were on trial. While concern for the feelings and sensibilities of potential jurors cannot be allowed to defeat inquiry necessary to protect a constitutional right, we do not believe that "content" questions are constitutionally required.
Whether a trial court decides to put questions about the content of publicity to a potential juror or not, it must make the same decision at the end of the questioning: is this juror to be believed when he says he has not formed an opinion about the case? Questions about the content of the publicity to which jurors have been exposed might be helpful in assessing whether a juror is impartial. To be constitutionally compelled, however, it is not enough that such questions might be helpful. Rather, the trial court's failure to ask these questions must render the defendant's trial fundamentally unfair. See Murphy v. Florida, 421 U.S. 794, 799, 95 S.Ct. 2031, 2036, 44 L.Ed.2d 589 (1975).
Aldridge was this Court's seminal case requiring inquiry as to racial prejudice, and the opinion makes clear that in reaching that result we relied heavily on a unanimous body of state court precedents holding that such an inquiry should be made. 283 U.S., at 311-313, 51 S.Ct., at 471-72. On the subject of pretrial publicity, however, there is no similar consensus, or even weight of authority, favoring petitioner's position. Among the state court decisions cited to us by the parties, not only Virginia, but South Carolina, State v. Lucas, 285 S.C. 37, 39-40, 328 S.E.2d 63, 64-65, cert. denied, 472 U.S. 1012, 105 S.Ct. 2714, 86 L.Ed.2d 729 (1985), Massachusetts, Commonwealth v. Burden, 15 Mass.App. 666, 674, 448 N.E.2d 387, 393 (1983), and Pennsylvania, Commonwealth v. Dolhancryk, 273 Pa.Super. 217, 222, 417 A.2d 246, 248 (1979), have refused to adopt such a rule. The Courts of Appeals for the Fifth Circuit, United States v. Davis, 583 F.2d 190, 196 (1978), the Seventh Circuit, United States v. Dellinger, 472 F.2d 340, 375-376 (1972), cert. denied, 410 U.S. 970, 93 S.Ct. 1443, 35 L.Ed.2d 706 (1973), and the Ninth Circuit, Silverthorne v. United States, 400 F.2d 627, 639 (1968),  have held that in some circumstances such an inquiry is required. The Court of Appeals for the Eleventh Circuit has held that it is not. United States v. Montgomery, 772 F.2d 733, 735-736 (1985). The Courts of Appeals for the Eight and District of Columbia Circuits appear to take an intermediate position. United States v. Poludniak, 657 F.2d 948, 956 (CA8 1981), cert. denied sub nom. Weigand v. United States, 455 U.S. 940, 102 S.Ct. 1431, 71 L.Ed.2d 650 (1982); United States v. Haldeman, 181 U.S.App.D.C. 254, 288-289, 559 F.2d 31, 65-66 (1976), cert. denied sub nom. Ehrlichman v. United States, 431 U.S. 933, 97 S.Ct. 2641, 53 L.Ed.2d 250 (1977). Even those Federal Courts of Appeals that have required such an inquiry to be made have not expressly placed their decision on constitutional grounds.
As noted above, our own cases have stressed the wide discretion granted to the trial court in conducting voir dire in the area of pretrial publicity and in other areas of inquiry that might tend to show juror bias. Particularly with respect to pretrial publicity, we think this primary reliance on the judgment of the trial court makes good sense. The judge of that court sits in the locale where the publicity is said to have had its effect, and brings to his evaluation of any such claim his own perception of the depth and extent of news stories that might influence a juror. The trial court, of course, does not impute his own perceptions to the jurors who are being examined, but these perceptions should be of assistance to it in deciding how detailed an inquiry to make of the members of the jury venire.
Petitioner relies heavily on our opinion in Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961), to support his position. In that case, we held that pretrial publicity in connection with a capital trial had so tainted the jury pool in Gibson County, Indiana, that the defendant was entitled as a matter of federal constitutional law to a change of venue to another county. Our opinion in that case details at great length the extraordinary publicity that attended the defendant's prosecution and conviction for murder.
"[A] barrage of newspaper headlines, articles, cartoons and pictures was unleashed against [the defendant] during the six or seven months preceding his trial. . . . [T]he newspapers in which the stories appeared were delivered regularly to approximately 95% of the dwellings in Gibson County and . . . the Evansville radio and TV stations, which likewise blanketed that county, also carried extensive newscasts covering the same incidents." Id., 366 U.S., at 725, 81 S.Ct., at 1644.
Two-thirds of the jurors actually seated had formed an opinion that the defendant was guilty, and acknowledged familiarity with material facts and circumstances of the case. Id., at 728, 81 S.Ct., at 1645. Although each of these jurors said that he could be impartial, we concluded:
"With his life at stake, it is not requiring too much that petitioner be tried in an atmosphere undisturbed by so huge a wave of public passion and by a jury other than one in which two-thirds of the members admit, before hearing any testimony, to possessing a belief in his guilt." Ibid.
We believe that this case is instructive, but not in the way petitioner employs it. It did not deal with any constitutional requirement of voir dire inquiry, and it is not clear from our opinion how extensive an inquiry the trial court made. But the contrast between that case and the present one is marked. In Irvin, the trial court excused over half of a panel of 430 persons because their opinions of the defendant's guilt were so fixed that they could not be impartial, and 8 of the 12 jurors who sat had formed an opinion as to guilt. In the present case, 8 of the 12 jurors who sat answered that they had read or heard something about the case, but none of those 8 indicated that he had formed an opinion as to guilt, or that the information would affect his ability to judge petitioner solely on the basis of the evidence presented at trial.
A trial court's findings of juror impartiality may "be overturned only for 'manifest error.' " Patton v. Yount, 467 U.S. 1025, 1031, 104 S.Ct. 2885, 2889, 81 L.Ed.2d 847 (1984) (quoting Irvin v. Dowd, supra, 366 U.S., at 723, 81 S.Ct., at 1643). In Patton, we acknowledged that "adverse pretrial publicity can create such a presumption of prejudice in a community that the jurors' claims that they can be impartial should not be believed," 467 U.S., at 1031, 104 S.Ct., at 2889, but this is not such a case. Had the trial court in this case been confronted with the "wave of public passion" engendered by pretrial publicity that occurred in connection with Irvin's trial, the Due Process Clause of the Fourteenth Amendment might well have required more extensive examination of potential jurors than it undertook here. But the showings are not comparable; the cases differ both in the kind of community in which the coverage took place and in extent of media coverage. Unlike the community involved in Irvin, the county in which petitioner was tried, Prince William, had a population in 1988 of 182,537, and this was one of nine murders committed in the county that year. It is a part of the metropolitan Washington statistical area, which has a population of over 3 million, and in which, unfortunately, hundreds of murders are committed each year. In Irvin, news accounts included details of the defendant's confessions to 24 burglaries and six murders, including the one for which he was tried, as well as his unaccepted offer to plead guilty in order to avoid the death sentence. They contained numerous opinions as to his guilt, as well as opinions about the appropriate punishment. While news reports about Mu'Min were not favorable, they did not contain the same sort of damaging information. Much of the pretrial publicity was aimed at the Department of Corrections and the criminal justice system in general, criticizing the furlough and work release programs that made this and other crimes possible. Any killing that ultimately results in a charge of capital murder will engender considerable media coverage, and this one may have engendered more than most because of its occurrence during the 1988 Presidential campaign, when a similar crime committed by a Massachusetts inmate became a subject of national debate. But, while the pretrial publicity in this case appears to have been substantial, it was not of the same kind or extent as that found to exist in Irvin.
Petitioner also relies on the Standards for Criminal Justice 8-3.5 (2d ed. 1980), promulgated by the American Bar Association. These standards require interrogation of each juror individually with respect to "what the prospective juror has read and heard about the case," "[i]f there is a substantial possibility that individual jurors will be ineligible to serve because of exposure to potentially prejudicial material." These standards, of course, leave to the trial court the initial determination of whether there is such a substantial possibility. But, more importantly, the standards relating to voir dire are based on a substantive rule that renders a potential juror subject to challenge for cause, without regard to his state of mind, if he has been exposed to and remembers "highly significant information" or "other incriminating matters that may be inadmissible in evidence." That is a stricter standard of juror eligibility than that which we have held the Constitution to require. Under the ABA standard, answers to questions about content, without more, could disqualify the juror from sitting. Under the constitutional standard, on the other hand, "[t]he relevant question is not whether the community remembered the case, but whether the jurors . . . had such fixed opinions that they could not judge impartially the guilt of the defendant." Patton, supra, 467 U.S., at 1035, 104 S.Ct., at 2891. Under this constitutional standard, answers to questions about content alone, which reveal that a juror remembered facts about the case, would not be sufficient to disqualify a juror. "It is not required . . . that the jurors be totally ignorant of the facts and issues involved." Irvin, 366 U.S., at 722, 81 S.Ct., at 1642.
The ABA standards as indicated in our previous discussion of state and federal court decisions, have not commended themselves to a majority of the courts that have considered the question. The fact that a particular rule may be thought to be the "better" view does not mean that it is incorporated into the Fourteenth Amendment. Cupp v. Naughten, 414 U.S. 141, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973).
The voir dire examination conducted by the trial court in this case was by no means perfunctory. The court asked the entire venire of jurors four separate questions about the effect on them of pretrial publicity or information about the case obtained by other means. One juror admitted to having formed a belief as to petitioner's guilt, and was excused for cause. The trial court then conducted further voir dire in panels of four, and each time an individual juror indicated that he had acquired knowledge about the case from outside sources, he was asked whether he had formed an opinion; none of the jurors seated indicated that he had formed an opinion. One juror who equivocated as to her impartiality was excused by the trial court on its own motion. Several other jurors were excused for other reasons. It is quite possible that if voir dire interrogation had revealed one or more jurors who had formed an opinion about the case, the trial court might have decided to question succeeding jurors more extensively.
Voir dire examination serves the dual purposes of enabling the court to select an impartial jury and assisting counsel in exercising peremptory challenges. In Aldridge and Ham we held that the subject of possible racial bias must be "covered" by the questioning of the trial court in the course of its examination of potential jurors, but we were careful not to specify the particulars by which this could be done. We did not, for instance, require questioning of individual jurors about facts or experiences that might have led to racial bias. Petitioner in this case insists, as a matter of constitutional right, not only that the subject of possible bias from pretrial publicity be covered-which it was-but that questions specifically dealing with the content of what each juror has read be asked. For the reasons previously stated, we hold that the Due Process Clause of the Fourteenth Amendment does not reach this far, and that the voir dire examination conducted by the trial court in this case was consistent with that provision. The judgment of the Supreme Court of Virginia is accordingly
^1 The articles had been published between September 26, 1988, and January 14, 1989. More than half of them appeared in the Potomac News, a daily paper with circulation of only 25,000, and the remainder were printed in the Washington Post and several other local newspapers. See App. in No. 890899 (Sup.Ct.Va.) 921-975 (App.).
^2 The court approved 24 of the proposed questions, but did not allow the following questions regarding the content of what jurors had read or heard about the case (J.A. 17-41):
"32. What have you seen, read or heard about this case?
"33. From whom or what did you get this information?
"34. When and where did you get this information?"
"38. What did you discuss?"
"41. Has anyone expressed any opinion about this case to you?
"42. Who? What? When? Where?"
The trial court did ask several of the requested questions concerning prior knowledge of the case:
"31. Have you acquired any information about this case from the newspapers, television, conversations, or any other source?"
"35. Have you discussed this case with anyone?
"36. With whom?
"37. When and where?"
^3 In Silverthorne, the Court of Appeals for the Ninth Circuit held that jurors should be interrogated as to the contents of the news reports which they had read. But in the later case of United States v. Polizzi, 500 F.2d 856 (1974), cert. denied sub nom. Emprise Corp. v. United States, 419 U.S. 1120, 95 S.Ct. 802, 42 L.Ed.2d 820 (1975), that court held that the pretrial publicity in that case had not been substantial enough to require extended interrogation. It pointed out that in Silverthorne, supra, there had been over 300 articles about the defendant, there had been radio and television coverage, and he had testified before the Senate Committee on Government Operations; out of a panel of 65 potential jurors, all had been exposed to some publicity, and 19 had been excused because they had formed an opinion. And in United States v. Giese, 597 F.2d 1170 (CA9), cert. denied, 444 U.S. 979, 100 S.Ct. 480, 62 L.Ed.2d 405 (1979), that court again distinguished Silverthorne, commenting that a trial court's own observation must be its guide to the effect of pretrial publicity.