Full opinion text
Opinion KEETON, District Judge. I. After full consideration of the contentions of the parties in this habeas corpus petition, I conclude that the petition should be denied. The petition was filed in this court more than a decade after the state court conviction it challenges. Now, more than another decade after it was filed, it is before the court for decision on voluminous submissions (the most recent of which was filed in 1994). II. Factual and Procedural Background On September 22, 1970, Officer Walter A. Schroeder of the Boston Police was killed in the course of an armed robbery of the Brighton Branch of the State Street Bank and Trust Company. On March 10, 1972 a jury convicted petitioner of first degree murder and two counts of armed robbery for his involvement in the events of September 22, 1970. The others charged in the robbery and murder were Stanley R. Bond, Robert J. Valeri, Susan E. Saxe, Michael Fleischer and Katherine A. Power. Bond, who testified as a defense witness at petitioner’s trial, died in prison. Valeri, who testified as a prosecution witness against petitioner, pleaded guilty to manslaughter and is now free. Fleischer testified as a prosecution witness against petitioner; his indictments were ultimately dismissed. After a period as a fugitive, Saxe was tried in 1976. That trial ended in a hung jury; she then pled guilty to manslaughter and is now free. The court takes judicial notice of the widely publicized fact that Katherine Power recently ended a twenty-three year period as a fugitive, pled guilty to charges against her in the Superior Court of Massachusetts and is currently serving a term of imprisonment in Massachusetts. On October 4, 1972, petitioner filed his first motion for a new trial in light of Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). His motion was denied, but his death sentence was changed to a life sentence, which he is currently serving. On August 20, 1973, petitioner filed a second motion for a new trial. He alleged that a) the prosecution had suppressed exculpatory statements by a witness, Michael Finn, b) the prosecution had suppressed an arrangement of leniency Valeri had allegedly been granted in return for his testimony, c) he had been denied a trial before an impartial jury due to prejudicial pretrial publicity, d) the judge’s instructions on the meaning of “reasonable doubt” violated his due process rights, and e) certain other constitutional violations had occurred at his trial. Evidentiary hearings were held on this motion, after which the Superior Court denied the motion; the Supreme Judicial Court affirmed in Commonwealth v. Gilday, 367 Mass. 474, 327 N.E.2d 851 (1975) (“Gilday 7”). On January 11, 1979, petitioner filed a third motion for new trial, alleging that the prosecution had suppressed exculpatory evidence of an arrangement of leniency Fleischer had been granted in exchange for his testimony. The motion was denied, and petitioner appealed. The Supreme Judicial Court remanded the case for an evidentiary hearing to determine if in fact such an arrangement of leniency had been made. The Superior Court, though finding that an arrangement of leniency had been made, denied relief. Petitioner appealed again. The Supreme Judicial Court affirmed the trial court’s finding that an arrangement of leniency had been made. The Court ruled, however, that any constitutional error thereby committed was harmless beyond a reasonable doubt. Commonwealth v. Gilday, 382 Mass. 166, 415 N.E.2d 797 (1980) (“Gilday II"). On October 13, 1981, Gilday filed his petition for writ of habeas corpus with this court. The Commonwealth filed a motion to dismiss the petition on the grounds that some of the issues had not been exhausted in state court. Judge McNaught of this court issued a memorandum and order dismissing petitioner’s original petition and treating it as resubmitted with the then-unexhausted state claims deleted (Docket No. 22, December 17, 1982). On May 7, 1983, petitioner filed a motion to expand the record before the court to include a recently obtained affidavit of the witness Valeri, which petitioner asserted disclosed that an arrangement of leniency had been made in return for Valeri’s testimony. Petitioner moved for an evidentiary hearing on the matter. That motion was denied by Magistrate Judge Joyce L. Alexander on September 16, 1983, Gilday v. Callahan, 99 F.R.D. 308 (no docket number). The denial was affirmed by Judge McNaught (marginal notation on Docket No. 53, made on January 18, 1983). On December 8, 1990, Judge McNaught ordered the case dismissed for want of prosecution (Docket No. 93). On February 1, 1991, Judge McNaught retired. On June 25, 1991, Judge Skinner granted a motion vacating the order of dismissal, and the case was reassigned to the judge before whom the matter is now pending (Docket No. 95). Meanwhile, on June 1, 1987, petitioner had filed his fourth motion for a new trial with the state courts, in order to litigate the thenunexhausted claims. He alleged in that motion that the charge to the jury had impermissibly removed specific intent as an element of the crime, substituting mandatory presumptions of intent and malice. The Superior Court denied this motion and the Supreme Judicial Court affirmed. Common wealth v. Gilday, 409 Mass. 45, 564 N.E.2d 577 (1991) (“Gilday III”). On January 24, 1992, this court allowed petitioner to amend his petition to include the claims that were exhausted by Gilday III (Docket No. 101, marginal notation). III. Reasonable doubt instructions A. Constitutional Error Petitioner challenges the charge to the jury on the government’s burden of proof. In 1970, before the trial of petitioner, the Supreme Court held that due process requires in any criminal proceeding that the factfinder be persuaded “beyond a reasonable doubt” of facts necessary to show the essential elements of the offense. In re Win-ship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). A trial court need not define reasonable doubt, but any definition the court states for the jury must not lessen the government’s burden of proof. United States v. Olmstead 832 F.2d 642, 644-46 (1st Cir.1987). To show on collateral review that a trial court erred in defining “beyond a reasonable doubt,” a petitioner bears a heavy burden. The Supreme Court has declared that “a single instruction ... may not be judged in artificial isolation, but must be viewed in the context of the overall charge.” Cupp v. Naughten, 414 U.S. 141, 146-47, 94 S.Ct. 396, 397, 38 L.Ed.2d 368 (1973). To show prejudice, a petitioner must show more than merely that the instruction was “undesirable, erroneous, or even ‘universally condemned.’” The burden is to show that the error “so infected the entire trial that the resulting conviction violates due process.” Id. Once constitutional error in a reasonable-doubt charge has been established, however, the error can never be regarded as harmless. Sullivan v. Louisiana, — U.S. --, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993); see discussion below at 628. Courts have determined to be unconstitutional instructions that, among other things, defined the reasonable doubt standard as one of “moral certainty.” For example, in Cage v. Louisiana, 498 U.S. 39, 41, 111 S.Ct. 328, 330, 112 L.Ed.2d 339 (1990), the trial court had instructed the jury that if they were not convinced of guilt to a “moral certainty,” and the evidence does not give rise to “grave uncertainty,” or to “actual substantial doubt,” then guilt beyond a reasonable doubt had been established. The Supreme Court found this instruction to be constitutionally deficient. In Lanigan v. Maloney, 853 F.2d 40, 47-48 (1988) the Court of Appeals for the First Circuit held that a charge that, among other things, had required jurors to be convinced of guilt to “a degree of moral certainty” (emphasis added) was constitutionally deficient. Other First Circuit precedent makes clear, however, that whether a reasonable doubt instruction that contains “moral certainty” language is unconstitutional depends on context, including the entire charge in which the challenged language appears. Id. at 48 (citing cases in which charge as a whole was not unconstitutional but finding that in the case before it the entire thrust of charge deemphasized the government’s burden). See also Dunn v. Perrin, 570 F.2d 21, 25 (1978) (cumulative effect of three incorrect definitions was to obfuscate an essential of due process). Thus, for example, in United States v. Drake 673 F.2d 15, 20 (1982) the court determined that language referring to “moral certainty,” without more, did not render constitutionally deficient a charge that, as a whole, properly instructed the jury on the government’s burden and on the presumption of innocence. Objecting to “moral certainty” language in the instructions in this ease, petitioner points to five occasions on which the court used the phrase “moral certainty” in charging the jury. Respondent counters by noting that on five occasions, the court emphasized to the jury the high standard of proof. Respondent also notes that unlike the charge in Dunn, the charge here did not contain the words “to a degree of.” In the opinion of the court in Dunn, this latter phrase had been particularly harmful in conjunction with the phrase “moral certainty.” Respondent notes also that, unlike the charge in Cage, the charge in this case did not use the phrases “grave uncertainty” or “actual substantial doubt,” which were there determined to lower the government’s burden of proof. Petitioner points to other language as having a tendency to trivialize the government’s burden. For example, the trial court charged the jurors that before convicting they must have the same level of certainty as they would have “when they take action in the major affairs of their lives” and “when they take vital action in [their] everyday fives.” In Dunn, the court found that where jurors are advised that the appropriate level of certainty is one that would cause the jurors to refrain from acting in the significant affairs of their lives, the instruction was not infirm. 570 F.2d at 24-25. Here, however, the instruction spoke of the certainty jurors required before acting. The Dunn court noted that such instructions had been disapproved by the Court of Appeals for the District of Columbia Circuit and by the Supreme Judicial Court of Massachusetts for their tendency to trivialize the government’s burden. Id. at 24-25 (citing Scurry v. United States, 347 F.2d 468, 470 (1965), Commonwealth v. Ferreira, 373 Mass. 116, 364 N.E.2d 1264 (1977). An instruction that referred to “the degree of certainty upon which you would act in the important affairs of your life” was, however, later upheld in Rogers v. Carver, 833 F.2d 379, 382 (1st Cir.1987). In that case, the Court of Appeals distinguished Ferreira on the grounds that in Ferreira the court had given specific examples of “major affairs,” such as deciding whether to continue one’s education or leave one’s job, which tended to “trivialize the awesome duty of the jury” to find defendant guilty beyond a reasonable doubt. In Rogers, by contrast, the Court of Appeals determined the instructions to be far less harmful, because they had not given any examples of “important affairs,” and thus had not trivialized the government’s burden. Id. Petitioner urges that, in the present case, the use of the term “everyday fives” further trivialized the charge, as had the reference to specific instances in Ferreira. In isolation, the term “everyday” might be taken to trivialize the government’s burden more than would language referring to major events; here, however, the term “everyday” was joined with the phrase “vital action” — “when they take vital action in [their] everyday fives.” In this context, “everyday” does not have the trivializing effect it otherwise might. Although the phrasing of the instruction could have been improved, I conclude that it did not sufficiently impair the charge to amount to a denial of due process. Petitioner objects to two other passages: All we can do is weigh the pros and cons against any contemplated course of action; and then with the wisdom and the intellect that we possess, make a decision. We may be right, we may be wrong (emphasis added). This language, petitioner argues, brings to mind the scales of justice, and strongly suggests the preponderance of the evidence standard. Even worse, petitioner argues, is the following language: When you get all through analyzing this evidence, it has to be a doubt nagging your mind, leaving you with an uncertainty of conviction to that moral certainty which you can stand up and argue in the jury room with principle and integrity and honesty to your fellow jurors. And if you don’t believe in it yourself, you haven’t got a reasonable doubt. This latter passage, petitioner argues, did not merely convey an impression of balancing; rather, it conveyed the impression that the law tilted the balance against the petitioner. Petitioner characterizes the above passage as similar to language found infirm in Dunn: [Reasonable doubt] does not mean a trivial or frivolous or fanciful doubt nor one which can be readily or easily explained away, but rather such a strong and abiding conviction as still remains after careful consideration of all the facts and arguments. 570 F.2d at 23-24. In Dunn, the court called this an “inescapable violation” of Winship, noting that it was the exact inverse of what it should have been ... [i]nstead of requiring the government to prove guilt, it called upon the defendants to establish doubt in the jurors’ minds. Id. Petitioner’s contention that the present charge involved a similar inversion of the burden of proof is based, however, on a reading of one sentence, in isolation. It is true that the trial judge did misspeak in stating that “if you don’t believe in it yourself, you haven’t got a reasonable doubt.” Aside from this sentence, however, nothing in the charge can reasonably be understood as even suggesting, much less instructing the jury to apply, an inversion of the burden of proof. And it is well settled that a single sentence is not to be interpreted “in artificial isolation.” The preceding sentence plainly referred to a “conviction” that the defendant was guilty as charged, not to a conviction of a “doubt” or belief in a “doubt.” The two sentences together cannot reasonably be interpreted as inverting the burden of proof. The conclusion that the context does not support an interpretation of inversion of the burden is reinforced when one takes account of the repeated instructions elsewhere in the charge of the point that it is the government, not the defendant, that has a burden of proof beyond a reasonable doubt. The charge as a whole instructed the jurors to acquit unless they had a conviction beyond reasonable doubt that the defendant was guilty as charged. There was no inversion or shifting of burdens. The charge did not so diminish or trivialize the burden imposed upon the government as to deny petitioner due process. IY. Mandatory Presumptions A. Sandstrom Claims The jury was charged that they might find petitioner guilty of first degree murder on either a theory that he had participated in a killing with premeditated malice aforethought or on a felony murder theory (that the killing had been committed as part of an armed robbery). Thus it is possible that the jury, in finding defendant guilty of first degree murder, did so on a finding that he had participated in an armed robbery, in the course of which a homicide occurred. Petitioner asserts that the charge to the jury allowed the jury to reach such a felony-murder verdict without finding one of the elements of armed robbery, namely, the specific intent to commit an armed robbery. Petitioner alleges that the charge to the jury, instead of instructing the jurors that in order to convict of felony murder they must find specific intent to commit armed robbery, instructed them to rely on a presumption that petitioner intended the natural and probable consequences of his actions. Interpreted in this way, petitioner contends, the charge is in violation of Sandstrom v. Montana, 442 U.S. 510, 520-24, 99 S.Ct. 2450, 2457-59, 61 L.Ed.2d 39 (1970). B. Retroactivity 1. The Teague Doctrine Winship, decided in 1970, announced a constitutional rule that in any criminal proceeding the factfinder must be persuaded “beyond a reasonable doubt” of facts necessary to establish each of the elements of the crime charged. Petitioner was tried in 1972. By April 25, 1975, the Supreme Judicial Court of Massachusetts had rejected petitioner’s efforts to set aside his murder conviction. On June 9, 1975, the Supreme Court in Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508, invalidated a jury charge that established a rebuttable presumption that where a homicide was intentional and unlawful, it was committed with malice aforethought. The charge had stated that the presumption could be rebutted by defendant on a showing by a preponderance of the evidence that he had acted in the heat of passion on sudden provocation. In 1979, the Supreme Court decided in Sandstrom that a charge instructing the jury to presume that the defendant intended the natural and probable consequences of his actions unconstitutionally shifted the government’s burden of proof as to an essential element of an offense. In Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) the Supreme Court decided that a new rule of constitutional interpretation will not be applied retroactively on collateral review unless the rule is within one of two exceptions. Under this array of precedents, to decide whether petitioner presents a meritorious constitutional claim under Sandstrom, a court hearing petitioner’s Sandstrom-based claim must consider whether Teague and its progeny stand as an obstacle to petitioner’s asserting a Sandstrom-based claim on collateral review. The Court has explained the Teague doctrine as “validat[ing] reasonable, good-faith interpretations of existing precedents,” Butler v. McKellar 494 U.S. 407, 414, 110 S.Ct. 1212, 1217, 108 L.Ed.2d 347 (1990). The Court has stated that a constitutional rule will not be considered new if “reasonable jurists” at the time petitioner’s conviction became final would have considered it to be “dictated” by precedent. Teague, 489 U.S. at 301, 109 S.Ct. at 1070; see also Sawyer v. Smith, 497 U.S. 227, 234-41, 110 S.Ct. 2822, 2827-31, 111 L.Ed.2d 193 (1990); Saffle v. Parks, 494 U.S. 484, 488-495, 110 S.Ct. 1257, 1260-64, 108 L.Ed.2d 415 (1990); Caspari v. Bohlen, — U.S. -, ----, 114 S.Ct. 948, 954-957, 127 L.Ed.2d 236 (1994). At the time petitioner’s conviction became final, did existing precedents provide clearly that jury instructions are unconstitutional if they impose mandatory presumptions on issues of fact that are essential to the offense charged? Supreme Court precedent existing at the time petitioner’s conviction became final had foreshadowed Sandstrom to some extent. Did it go far enough that Sandstrom announced no “new rule?” In Morissette v. United States, 342 U.S. 246, 273-76, 72 S.Ct. 240, 255-56, 96 L.Ed. 288 (1952), the Supreme Court ruled that where an intent is an element of an offense, the existence of that intent is a question of fact that cannot be removed from the jury by instructing them that the law raises a mandatory presumption of intent. The court stated that “this presumption would conflict with the overriding presumption of innocence with which the law endows the accused and which extends to every element of the crime.” Id. at 275, 72 S.Ct. at 256. Morissette involved a federal offense and the decision did not explicitly rest on any constitutional principle. In its later decision in Winship, however, the Court ruled that in any criminal proceeding the factfinder must be persuaded “beyond a reasonable doubt” of facts necessary to establish each of the elements of the crime charged. Thus the requirement of proof “beyond a reasonable doubt” in criminal cases was raised to constitutional status, applicable to cases tried in state courts and not alone to federal prosecutions. After Winship, then, it was possible to frame an argument that mandatory presumptions violated the constitution; this hardly indicates, however, that “reasonable jurists” would have agreed that the argument must be sustained. It was not until the landmark Mullaney and Sandstrom decisions — both decided subsequent to petitioner’s conviction having become final — that such instructions were definitively invalidated. In applying the “reasonable jurist” standard, a court is to apply a foresight rather than a hindsight standard. With the passage of time and experience under the rule of Mullaney and Sandstrom, it is tempting to look back and conclude that those decisions were foreordained by precedents such as Morissette and Winship. A close examination, however, of contemporaneous views and practices of the bench and bar before Mullaney and Sandstrom were handed down is at least instructive, if not controlling. Petitioner cites DeJoinville v. Commonwealth, 381 Mass. 246, 248, 251, 408 N.E.2d 1353 (1980) for the proposition that the Sandstrom rule is retroactively applicable on collateral review in Massachusetts. First, however, this was a decision under pre-Teague standards. Thus it is not on point for purposes of considering retroactivity on federal habeas corpus review; it is questionable whether it is even good law for purposes of Massachusetts collateral review, insofar as it seems to rely upon federal case law. See, e.g., DeJoinville, 408 N.E.2d at 1356 n. 7 (citing Hankerson v. North Carolina, 432 U.S. 233, 97 S.Ct. 2339, 53 L.Ed.2d 306 (1977) for proposition that Mullaney rule is retroactive.) Moreover, the reasoning of the court in DeJoinville suggests that under the now-applicable Teague standard, the Sandstrom rule should not be viewed as retroactive, because the Sandstrom decision radically altered the practices of the bench and bar. In DeJoinville the court determined that the United States Supreme Court cases decided before De Joinville’s appeal did not provide De Joinville with “sufficient guidance” to give him a genuine opportunity to raise an objection to a mandatory presumption. Id., 408 N.E.2d at 1356. Significantly, the Supreme Judicial Court came to this conclusion even though, by the time De Joinville made his appeal, Mullaney had been decided. If it was not reasonable to expect someone to predict the Sandstrom claim after Mullaney, it would have been even less reasonable to expect someone to predict the claim before Mullaney — that is, at the time petitioner’s conviction became final. And if it was not a claim that could reasonably have been predicted, it was a fortiori not a claim that reasonable jurists would have agreed was “dictated” by then-existing precedents. Cf. Commonwealth v. Callahan, 380 Mass. 821, 406 N.E.2d 385, 388 (1980) (noting that the Supreme Judicial Court began to scrutinize jury instructions more carefully after the Supreme Court’s Mullaney decision, and applied a stricter standard of scrutiny to post-Mullaney instructions); Commonwealth v. Stokes, 374 Mass. 583, 374 N.E.2d 87, 91 (1978) (failure of a petitioner to object to assertedly invalid burden-shifting charge, at a trial conducted before the Supreme Court decided Mullaney, would not bar review of that assertedly invalid charge; to do so would be to require “clairvoyance” on the part of defense counsel); Caspari, — U.S. at ---, 114 S.Ct. at 954-57 (then-existing decisions of state courts are relevant to a determination as to whether reasonable jurists, at the time, would have regarded the precedents as dictating a particular constitutional rule). I conclude that for purposes of applying the Teague doctrine, the Sandstrom prohibition against mandatory presumptions as to the essential elements of criminal offenses was a new rule. See Cain v. Redman, 947 F.2d 817, 820-22 (6th Cir.1991) cert. denied — U.S. -, 112 S.Ct. 1299, 117 L.Ed.2d 521 (1992) (Sandstrom “broke new ground,” and was a “new” rule for Teague purposes); Goodwin v. McQuen, 812 F.Supp. 181 (D.Kan.1993). Cf. Prihoda v. McCaughtry, 910 F.2d 1379, 1382 (7th Cir.1990). Since Sandstrom announced a “new” rule, petitioner may not avail himself of the benefit of that decision unless he can show that the rule falls into one of two narrow exceptions to the Teague doctrine. The first exception relates to “primary, private individual conduct beyond the power of the criminal law-making authority to proscribe,” 489 U.S. at 307, 109 S.Ct. at 1073. It is not implicated in this case. The second exception is for watershed rules of criminal procedure that are necessary to the fundamental fairness of the criminal proceeding. Id. at 311, 109 S.Ct. at 1075 (plurality opinion), Saffle, 494 U.S. at 486, 110 S.Ct. at 1259. Petitioner asserts that the Sandstrom rule implicated a bedrock procedural element essential to the fundamental fairness of the trial, and therefore that Sandstrom should be considered to fall into the second Teague exception. For the reasons stated below, I conclude that this contention cannot be sustained. The Teague plurality, in carving out the second exception, made clear that it was narrow and was not intended to implicate every constitutional rule that might have a bearing on fairness, or a bearing on accuracy. Rather, the exception encompasses only such rules as both implicate the accuracy of the trial and are “absolute prerequisite^] to fundamental fairness.” Teague, 489 U.S. at 314, 109 S.Ct. at 1077. The Teague plurality described the second exception without applying it. In that case, petitioner urged the adoption of a new rule, that petit juries — as opposed to jury venires — be subject to a fair-cross-section rule; without deciding whether the proposed rule had merit, the plurality expressed the view that such a new constitutional rule would not fall within the second exception. Id. at 313-14, 109 S.Ct. at 1076-77. The Supreme Court has stated in dicta that the rule of Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) is a rule the “primacy and centrality” of which would justify applying the second exception. Saffle, 494 U.S. at 494, 110 S.Ct. at 1263. The Supreme Court, however, has found no occasion to hold that a new rule fell within the second exception. See Saffle 494 U.S. at 494, 110 S.Ct. at 1263 (proposed rule that jury in capital sentencing be allowed to mitigate sentence based upon the sympathy they feel for the defendant after hearing mitigating evidence would not fall within second Teague exception); Sawyer, 497 U.S. at 243-44, 110 S.Ct. at 2832 (rule forbidding inaccurate prosecutorial argument diminishing juror responsibility in capital sentencing is not within exception); Butler, 494 U.S. at 415-17, 110 S.Ct. at 1218 (rule forbidding interrogation following invocation of right to counsel is not within exception). In Gilmore v. Taylor, —r- U.S.-,-, 113 S.Ct. 2112, 2119,124 L.Ed.2d 306 (1993), the Supreme Court held that the rule of Falconer v. Lane, 905 F.2d 1129 (7th Cir. 1990), did not fall ■within the second Teague exception. The Falconer decision invalidated jury instructions that failed to state expressly that the jury could not return a murder conviction if it found that the defendant had a mental state that would reduce the offense to voluntary manslaughter. 905 F.2d at 1136. Although the Gilmore decision is not precisely on point, it indicates that a new rule that it is constitutional error to instruct the jury in a manner that has a tendency to confuse the jury on the government’s burden of proof is not of the sort of “bedrock” or “watershed” importance as would implicate the second exception. Id. This point applies with special force to a Sandstrom error, because the impact of the Sandstrom rule is an exceedingly narrow one. The constitutional error of stating that the jurors “must presume” a fact is avoided if the trial court instead states that the jurors “may infer” that fact. Error will probably also be avoided if the jurors are instructed that they “may presume” that fact. See, e.g. Hardy v. United States 691 F.2d 39, 40 (1st Cir.1982). Cf. Sandstrom, 442 U.S. at 527-28, 99 S.Ct. at 2461 (concurring opinion of Rehnquist, J.) (expressing doubts whether jury was so attentively attuned to instructions to divine the difference between “infer” and “presume.”) Furthermore, an otherwise ambiguous instruction may be cured of any constitutional infirmity if the surrounding language of the charge is such that jurors would not be “reasonably likely” to interpret the charge as creating a mandatory presumption. Boyde v. California 494 U.S. 370, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990). For all these reasons, I conclude that the Sandstrom rule does not come within the second Teague exception. See Cain, 947 F.2d at 822 (Sandstrom rule not encompassed within second Teague exception; Goodwin, 812 F.Supp. at 182 (same). C. Procedural Default of Non-Intoxication Sandstrom Claims There is a separate reason why petitioner may not assert certain aspects of his Sandstrom claims; insofar as the Sandstrom claims relate to portions of the charge other than the charge on intoxication, petitioner’s claims are barred by an independent and adequate state procedural ground. The Supreme Judicial Court, in considering petitioner’s fourth motion for new trial, chose to consider on the merits only those portions of the instructions that related to intoxication. Petitioner had asserted that certain other portions of the charge also contained Sandstrom errors, but the Supreme Judicial Court refused to consider these claims (“non-intoxication claims,” hereinafter), ruling that 1) the issue of error in non-intoxication instructions was not “properly before the Court, not having been addressed by defendant in his motion [for a new trial], accompanying memorandum, and supplemental letter to the [trial] court,” and 2) that “since the issues raised in the motion for reconsideration could have been raised ... but were not, they must be deemed waived[,] See Mass.R.Crim.P. 30(c)(2).” Gilday III, 564 N.E.2d at 578 & n. 3. Respondent in the present action repeats the assertion that petitioner’s non-intoxication Sandstrom claims were barred by Mass.R.Crim.P. 30(c)(2). Petitioner takes issue with the first determination. Petitioner argues, first, that although he asserted state law grounds for finding the intoxication instructions invalid, he explicitly argued, as part of his motion for post-conviction relief, that the intoxication instructions were also violative of the federal constitution. He points to specific language in the motion for new trial and also in a supplemental letter supplying an inadvertently-dropped footnote, which referred to the presumption issue and cited Winship, Mullaney, and Sandstrom. Petitioner apparently understands the Supreme Judicial Court’s determination in Gil-day III that he had waived his non-intoxication claims as a determination based on the ground that no Sandstrom claims at all were before the motion judge. If this had in fact been the basis of the waiver determination in Gilday III, then petitioner would be correct in asserting that he had not waived the non-intoxication claims; he had clearly grounded his objection to the intoxication instructions, at least in part, on Sandstrom grounds. Indeed, respondent does not argue that the assertion of Sandstrom error in the intoxication instructions is proeedurally barred. Petitioner’s reading of Gilday III is strained, however. A more sensible reading is that the Supreme Judicial Court refused to consider non-intoxication instructions because petitioner had only pointed to Sandstrom error in the intoxication portion of the instructions in his motion for a new trial. Thus he had “waived” any objection to other Sandstrom errors in the instructions. Petitioner does not now point to any part of that motion in which he pointed to the non-intoxication instructions that he now asserts were Sandstrom errors. Petitioner points to the motion judge’s statement that he read the “charge as a whole.” This statement does not establish, however, that the motion judge chose to consider separate Sandstrom errors in the non-intoxication portion of the instructions. No such errors had been briefed. The statement only shows that the motion judge conscientiously considered the “charge as a whole” in evaluating the asserted Sandstrom error in the intoxication instructions, as the motion judge was required to do. See Francis v. Franklin 471 U.S. 307, 315, 105 S.Ct. 1965, 1971-72, 85 L.Ed.2d 344 (1985). (if a specific portion of the jury charge, considered in isolation, could reasonably have been understood as creating a presumption, the potentially offending words must be considered in the context of the charge as a whole, in case other instructions explain the particular infirm language). Petitioner argues that the Supreme Judicial Court’s ruling that his claim is procedurally barred is contrary to “undisputed” facts, is therefore a ruling on a question of law, and as such is not entitled to a presumption of correctness due to questions of fact under 28 U.S.C. 2254(d). Petitioner cites as authority for this contention a case involving an insurance dispute in which it was held that, where facts are undisputed, the question whether waiver occurred is an issue of law. Making an assumption arguendo that this is so does not help petitioner. Ouimette v. Moran 942 F.2d 1, cited by petitioner, stands for the proposition that certain issues that are “mixed questions of law and fact” are not entitled to the 2254(d) presumption of correctness. This refers, however, to “mixed” questions of fact and federal constitutional law. See id. at 4-5. It does not alter the general principle that the highest state court is the final arbiter of state law. Thus if, as petitioner asserts, the issue of “waiver” here were a pure question of law, the state court ruling that petitioner’s claim was “waived” would constitute an independent and adequate state ground for refusing to hear his petition. Absent a showing of cause and prejudice, the Supreme Judicial Court’s ruling on the “law” would be dispositive. Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). In any event, I do not accept petitioner’s contention that this is a pure question of law. There is a factual issue as to whether petitioner failed to point to any Sandstrom error in the non-intoxication portions of the instructions. This factual issue is covered by the presumption of correctness of section 2254(d). I find that petitioner did not point to any Sandstrom error in the non-intoxieation portion of the instructions. I would so find even if the state court determination on this matter were not to be accorded a presumption of correctness; petitioner has not indicated any portion of his motion for a new trial in which he pointed to Sandstrom error in the non-intoxication portion of the instructions. The fact that petitioner noted a Sandstrom-type error in the intoxication instructions does not show that he preserved the right to object to a different Sandstrom-type error in other parts of the instruction. The trial judge in the course of those instructions stated that the presumption that a man who of his own accord, puts himself in a condition which causes him to commit a crime ... ought to be treated as if he had voluntarily committed a crime,” applied “[a]t least, insofar as the element of liquor is concerned. This intoxication instruction, taken alone, was not reasonably subject to the interpretation that it told the jury that they were to apply a general presumption that a person intends the natural consequences of his actions. Petitioner failed to raise a timely claim, in his motion for new trial, that certain non-intoxication instructions might have been taken by the jury to create such a presumption, and petitioner has not asserted cause for his failure to assert this claim. Wainwright v. Sykes, supra. I conclude that petitioner has failed to show any basis for overturning the Supreme Judicial Court’s ruling that the claims of Sandstrom error in the non-intoxication instructions are procedurally barred. Y. Jury Bias A. Standard of Review Petitioner asserts that extensive news coverage — about the robbery, about the state’s efforts to bring petitioner to trial, about petitioner’s alleged attempt to escape from the Charles Street Jail before his trial, and about petitioner’s prior criminal record — made it impossible to have an impartial jury. Petitioner contends that the trial judge either should have granted continuances until prejudicial community sentiment abated or else should have granted a change of venue to a location where the prejudicial community sentiment did not prevail. Petitioner also asserts that at least jurors actually seated displayed bias against petitioner. Petitioner need not show actual juror bias to show that he was prejudiced by negative publicity. It is sufficient to prove inflammatory, sensational publicity “so saturate[d] a community from which [the jury was] drawn as to render it virtually impossible to obtain an impartial jury.” United States v. Angiulo 897 F.2d 1169, 1181 (1st Cir.1990). Alternatively, one may make an adequate showing of prejudice by proving that a high percentage of the venire admits to a disqualifying prejudice. Id. Of course, petitioner may also show actual prejudice among the jurors seated at trial. Id. at 1182. To show jury partiality, however— whether circumstantially or by directly showing bias — petitioner must meet a heavy burden. Since the challenge here is on collateral review in a habeas corpus petition, the finding of the trial judge that the assertedly biased jurors were not biased in fact is entitled to a presumption of correctness under 28 U.S.C. § 2254. Patton v. Yount 467 U.S. 1025, 1036, 104 S.Ct. 2885, 2891, 81 L.Ed.2d 847 (1984). This is so because the determination of bias of individual jurors is a question of historical fact. The trial court’s determination, made only after a voir dire proceeding “designed specifically” to identify bias, is one which is “essentially one of credibility, and therefore largely one of demean- or.” Id. at 1038, 104 S.Ct. at 2892. To the extent that the trial court made a more general determination that pervasive publicity had not biased the jury, that determination will be reversed only if it is shown to be “manifest error.” Compare Irvin v. Dowd 366 U.S. 717, 723, 81 S.Ct. 1639, 1642-43, 6 L.Ed.2d 751 (1961) (applying “manifest error” standard to claim of jury partiality) with Patton, 467 U.S. at 1032 n. 7, 104 S.Ct. at 2889 n. 7 (doubting whether there is any practical difference between the manifest error standard and the presumption of correctness, which presumption was added to the statute subsequent to Irvin)-, see also Amirault v. Fair 968 F.2d 1404 (1st Cir.1992) (trial court findings on issues of juror credibility and honesty are peculiarly within a trial judge’s province and are accorded great deference). Similarly, to show that the trial judge erred in failing to grant a continuance or change of venue, petitioner must also meet a heavy burden. The Court of Appeals for the First Circuit, in reviewing direct appeals of defendants in federal criminal proceedings, has applied an abuse of discretion standard to cases in which the trial judge failed to grant a continuance or change of venue on the grounds of prejudicial publicity. See United States v. Moreno Morales 815 F.2d 725, 739 (1st Cir.1987) (failure to grant continuance). United States v. Drougas 748 F.2d 8, 29 (1st Cir.1984) (failure to grant change of venue). These eases involved the exercise of the supervisory power of the Court of Appeals. Thus it is possible that the standard of review that would apply on collateral review would be even less favorable to the claim of error than an abuse of discretion standard. In any event, however, there is no reason to think that the standard on collateral review would not be any more favorable to the petitioner than the abuse of discretion standard; the eases just cited, like petitioner’s case, involved asserted denials of a constitutional right to a fair trial. Applying an abuse of discretion standard, I determine that the trial court did not err in failing to grant a second continuance. Great deference to the findings of the trial court is particularly appropriate here in light of the efforts made by the trial court to prevent prejudice to the petitioner. The trial was originally set to begin in April, 1971, already at least five months after the commission of the crime in question. The trial court granted a continuance, and the trial was delayed until the beginning of February 1972; thus the trial took place sixteen months after the robbery. Subsequent requests for a continuance, and requests for a change of venue, were denied. [The judge] addressed all potential jurors in the strongest language as to publicity and its possible effect on them. The judge’s interrogation of individual jurors was resourceful and thorough; he invited suggestions from counsel for questions to be put by the court to jurors as to publicity. His interrogation of the jurors as to matters of prejudice was painstaking and resourceful, and he resolved all doubts in favor of the defendant. He sequestered the jury after empaneling____ We think it was within the judge’s discretion, in light of the extensive and careful measures taken by him, whether to accept, without more, the declaration of the jurors as to their disinterest and freedom from emotional or intellectual commitment. Gilday I, 327 N.E.2d at 862. I cannot conclude that both the trial judge and the Supreme Judicial Court erred in reaching these essentially fact-based determinations. B. Actual Bias Petitioner asserts that “many of the jurors who were eventually seated had shown considerable bias.” Pet.Memo Supp.Pet. at 57. In considering an allegation of jury bias, one must keep in mind that the law does not require that the jurors be totally ignorant of the facts and issues involved. In these days of swift, widespread and diverse methods of communication, an important case can be expected to arouse the interest of the public in the vicinity, and scarcely any of those best qualified to serve as jurors will not have formed some impression or opinion as to the merits of the case. This is particularly true in criminal cases. To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror’s impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court. Irvin, 366 U.S. at 722-23, 81 S.Ct. at 1642-43. With this substantive standard in mind, and according great deference to the trial court’s findings that the jurors actually seated met this standard, I conclude that petitioner has failed to show that the jury actually seated was biased. According to petitioner, Juror Faretra “agreed that he knew that Gilday was involved with the bank robbery or murder.” Pet.Mot.Supp.Pet. at 57. A review of the record shows that Faretra, under questioning by the trial court, stated that although he had “heard or read some papers” about the events in question, he had not formed any opinion about the guilt or innocence of the accused, and that he would be able to decide that question based solely on the evidence he heard in the courtroom. Trial Record at 1280-82. Under questioning by defense counsel, Faretra testified that he had “no details in [his] mind” about the case. Id. at 1286. When asked, however, whether the name “Gilday” meant anything to him, however, he said that it did, and when asked by defense counsel whether it was “that he was involved in a bank robbery and the murder of a police officer,” Faretra answered affirmatively. Id. at 1286-87. Defense counsel then asked the following: So that, at least, even though you don’t remember the details as you sit there now, your memory of what you have read and what you have learned was that Gilday in some way was involved in a bank robbery or murder? Id. Faretra answered: He is involved with some act like that, yes. I haven’t recollected anything. I mean, I didn’t anticipate that. That is the reason. Id. Defense counsel then stated: Right. But at least, as you sit there now, you are willing to be unconvinced of that, depending on the evidence. Id. The government objected to this question, and the Court asked Faretra whether he felt actively or subconsciously so that if you sat as a juror, Gilday would have the burden of putting that out of your mind? Has he got to unconvince you? Id. Faretra answered: I haven’t any thought or feeling on it at this moment, absolutely nothing. I can’t say anything one way or another about the matter. Id. Defense counsel then interjected: Except that you did tell me that Gilday was involved in a bank robbery and murder, at least so far as what you read in the paper? Id. at 1288. Faretra answered: I haven’t followed this thing, to be perfectly honest about it. I didn’t follow this case at all. Id. Defense counsel then challenged Faretra for cause, having exhausted his peremptory challenges. The court denied the motion, and Faretra was sworn. Id. Reviewing this exchange, I am unable to determine that the trial judge erred in finding that Faretra had no bias. As noted, it was not required that Faretra’s mind be a blank slate, devoid of any knowledge of media coverage, or even devoid of any opinion on the merits of the case. Faretra stated that he had formed no opinion, and would base his judgment solely on the evidence in the court; he maintained this position despite the attempt of defense counsel, by means of leading questions, to elicit from him a statement to the effect that he had formed such an opinion with respect to Gilday and that he would regard it as Gilday’s burden to “unconvince him.” This court must give deference to the determination of the trial court that Faretra had no bias. This is particularly so because the trial court had the opportunity to observe Faretra’s demeanor in responding to the leading questions asked by defense counsel. Petitioner asserts that three other members of the jury actually seated demonstrated bias. It appears, however, that petitioner has misread the record, for although Faretra was seated, the other three members of the venire identified by petitioner as having been seated (Chamberlain, Comerford, and Stone) were not. See Trial Record at 4375 (jury returns with its verdict, and Jurors Luck, Tartaglini, Pallozzi, McCann, Mulkerron, Marnell, Goodwin, Smith, Todisco, Faretra, McDonald, and Choo answer present, as well as four alternates, Kobialka, Egdall, Holden, and DeAngelis). Petitioner may have been mislead by the practice of the trial court and court reporter of referring to members of the venire as jurors. In this regard it should also be noted that questions posed to venire members as to whether other “jurors” had been speaking about media coverage of the alleged offenses were referring to discussions among members of the venire, not among members of the jury finally seated. Since these venire members were not actually seated, petitioner’s contentions with regard to them are irrelevant to a finding of actual bias of the deliberating jury. Furthermore, review of the voir dire of these three venire members does not reveal anything more indicative of bias than did the voir dire of Faretra. Thus, if I take these venire members as a sample of community sentiment as a whole, keeping in mind that petitioner has drawn my attention to these venire members as examples of bias, review of their testimony buttresses my finding below that media coverage did not lead to pervasive community sentiment against petitioner such as would render the trial constitutionally invalid. C. Community Sentiment As explained above, jury prejudice may be shown by (or, as is often stated, will be presumed from) proof to a high level of probability that community sentiment was pervasively against the defendant. To show such conditions, however, is extremely difficult. Petitioner asserts that publicity was extensive and inflammatory. Respondent concedes that there was widespread pretrial publicity. Answer at 1. As evidence of pervasive community sentiment, petitioner asserts that 51 out of 132 (38.6%) members of the venire who were not previously excused for other reasons were dismissed by the judge on the grounds that they were biased. Although this assertion, if true, would tend to indicate that pretrial publicity was pervasive, it does not tend to show that sentiment against petitioner was so overwhelming that the jury actually selected by the trial court should be presumed to be biased. The Court of Appeals for the First Circuit has stated that even if a greater percentage of the venire had a fixed opinion of petitioner’s guilt, this would not be enough to impeach the impartiality of those jurors actually seated. Moreno Morales, 815 F.2d at 735 n. 12 (stating that 42.85% proportion of committed venire members would be insufficient to allow presumption of prejudice and citing Patton, supra for the proposition that even a proportion of 77% venire members would be insufficient). I conclude that the percentage of biased venire members was not high enough to give rise to a presumption that the jurors actually seated were biased. This conclusion is particularly warranted in light of the extensive precautions taken by the trial court here to ensure that those actually seated had not been impermissibly influenced by outside opinion. More generally, petitioner’s contentions as to the nature of the publicity in this case prove too much. Petitioner notes that the trial judge and prosecutor expressed the view that community knowledge of the robbery were never going to entirely abate. Petitioner’s contention that pretrial publicity was pervasive is premised, at least in part, on his assertion that “every pretrial motion and argument of the defense or prosecution caught the media’s attention.” Petitioner cites as an example of prejudicial publicity a story in the Herald Traveler on petitioner’s request for a second continuance. The proffered evidence tends to show that if petitioner had succeeded in obtaining further continuances, media interest would have continued unabated. Indeed, recent events have shown that murder of Officer Schroeder continues to excite considerable interest even after more than twenty years have elapsed. Petitioner’s assertion that he was entitled to avoid trial so long as his case remained a matter of intense public interest, under the circumstances, amounts to an assertion that he was entitled to delay trial indefinitely. A reviewing court, in considering the totality of the circumstances to determine whether the decisions of the trial court to deny continuances, to deny venue changes, and to seat particular jurors were “manifest error,” or an abuse of discretion, must consider the options available to the judge. Where circumstances strongly suggest that the legal maneuvering surrounding the trial was generating publicity on its own, the trial judge can hardly be faulted for deciding that granting a further continuance, in addition to the initial continuance of ten months, would not significantly lessen (and might worsen) the publicity surrounding the case. To the extent that petitioner’s argument suggests that he is entitled to continuances ad infinitum, the contention must be rejected. In Moreno Morales, the Court of Appeals for the First Circuit noted: The denial of a motion for an indefinite or substantial continuance predicated upon widespread adverse pretrial publicity about a defendant is all the more warranted when, as here, there is sound reason to believe that the defendant will continue to be a controversial, pubhcity-invoking figure and, hence, that there is little assurance that the passage of time will result in an abatement or subsidence of critical publicity in the foreseeable future. 815 F.2d at 737 (internal citation omitted). The Court of Appeals noted that the Sixth Amendment guarantee of a speedy trial is one to which the government and society, as well as the accused, has a claim, and stated that society “cannot be utterly deprived of the right to prosecute and try someone for a crime within a reasonable time merely because of widespread community knowledge.” Id. at 739. For similar reasons, petitioner’s assignment of error to the failure to grant a venue change must also fail. In Moreno Morales, defendant had declined to seek a venue change, and because of this failure the Court of Appeals placed a heavier burden on the defendant to show error in the failure to grant a further continuance. Id. at 739. Nevertheless, the reasoning of Moreno Morales does not suggest that a defendant will ever have an absolute right to be granted either a venue change or indefinite continuance, should he request both and show the present existence of prejudicial community sentiment. The reasoning in Moreno Morales suggests that where publicity is so pervasive that neither a change of venue nor a continuance would be likely to diminish community prejudice, the trial court is within its discretion in denying both. Here petitioner cannot reasonably assert that prejudice to the defendant would have been significantly reduced had the trial been moved to another part of the Commonwealth. Petitioner has cited United States v. Abrahams, 453 F.Supp. 749 (D.Mass.1978) in support of the proposition that a change of venue is warranted. In fact, the case supports the opposite conclusion. That was a federal case, and there the trial court was able to order that the trial take place in a United States district court in Texas, where, it was reasonable to believe, community sentiment was less inflamed. Petitioner here was tried in state court. No showing has been made that the trial judge could have ordered that the trial occur outside the Commonwealth. The court in Abrahams expressly found that a change of venue from Boston to Springfield could not have significantly reduced prejudice in a well-publicized case, noting that although Springfield had its own newspapers and radio and television stations, it was also a major market for the two Boston daily papers that carried prejudicial information in that case. Id. at 754. Since petitioner in his briefs argues that “the very nature of [petitioner’s] case served to inflame the public in a way that Abrahams’ case never could,” Abrahams does not support his argument that a change of venue to another site within Massachusetts would have reduced prejudice to him. For these reasons, petitioner’s motion for an evidentiary hearing on pretrial publicity (Docket no. 125) and his request for funds to secure a news service are denied. Petitioner has not shown the existence of a factual dispute that, if resolved in his favor, would support his claim for relief. See, e.g., United States v. Hadfield, 918 F.2d 987, 992 (1st Cir.1990) (evidentiary hearing not required unless defendant makes threshold showing that material facts are in doubt or dispute), cert. denied, 500 U.S. 936, 111 S.Ct. 2062, 114 L.Ed.2d 466 (1991); see also Copp v. United States, 968 F.2d 1435, 1438 n. 1 (1st Cir.1992) (threshold showing required); Weinberger v. Great Northern Nekoosa Corp., 925 F.2d 518, 527-8 (1st Cir.1991) (same); VI. Trial Errors A. Standard of Review Until recently, federal courts, including the Supreme Court in “a handful of eases,” Brecht v. Abrahamson, — U.S. -, -, 113 S.Ct. 1710, 1712, 123 L.Ed.2d 353 (1993), have applied to collateral review of constitutional errors in state court proceedings the harmless error standard of Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), namely, whether the error was “harmless beyond a reasonable doubt.” In Brecht, the Supreme Court held that, in a collateral proceeding, a different harmless error standard applies to some alleged constitutional errors. The precise issue in Brecht concerned the prosecution’s use, for impeachment purposes, of petitioner’s silence after a Miranda warning. The Court held that this matter is appropriately analyzed not under Chapman but rather under the harmless-error standard of Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 1253, 90 L.Ed. 1557 (1946) — namely, whether the error “had substantial and injurious effect or influence in determining the jury’s verdict.” Brecht, — U.S. at -, 113 S.Ct. at 1712. Until Brecht, the Kotteakos standard had been reserved for review of noneonstitutional errors in federal criminal trials. In Brecht the Court reasoned that the Kotteakos standard was more appropriate on habeas review than the Chapman standard because the Kotteakos standard makes it harder to overturn a judgment. This standard, more demanding of the petitioner, is more accommodating of society’s interest in the finality of convictions. Id. at---, 113 S.Ct. at 1711-12. Nevertheless, the Court noted that there is a continuum of constitutional errors. At one end are errors — called “trial errors” — that are to be reviewed under the Kotteakos standard. At the other end are errors so fundamental that they are not subject to harmless-error review at all. Id. at---, 113 S.Ct. at 1710-11. The prosecutorial misconduct at issue in Brecht was a “trial error.” It occurred during the presentation of the case to the jury and might be assessed in the context of other evidence presented at trial. Id. (citing Arizona v. Fulminante, 499 U.S. 279, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991)). The Court cited, as an example of an error that was not subject to harmless-error review, the deprivation of counsel — an error that “de[fles] harmless error analysis” because it concerns a structural defect of the trial mechanism that “infect[s] the entire trial process.” Id. (also citing Fulminante). A second example of an error that would not be subject to the Kotteakos harmless-error analysis because it concerns a “structural defect” is a charge to the jury that fails to instruct them correctly on the government’s burden of proving guilt beyond a reasonable doubt. See Sullivan v. Louisiana, — U.S. -, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993) (constitutionally deficient instruction on reasonable doubt can never be harmless error; even if the evidence against defendant were overwhelming, defendant was denied his constitutional right to have the determination of guilty-beyond-a-reasonable-doubt made by a jury). Respondent concedes that, in light of Sullivan, the reasonable doubt instructions are not subject to harmless-error analysis, but he urges that the Kotteakos standard be applied to the other errors asserted in this case. The reasoning of Sullivan is compatible with a contention that the Kotteakos standard does not apply to claims of Sandstrom error as well, since these claims similarly involve the trial court’s instructions to the jury, and not the presentation of evidence to the jury. I need not reach that question, however, since I have rejected the Sandstrom claims on other grounds. Similarly, I need not decide whether constitutionally impermissible jury bias is subject to Chapman or to Kotteakos harmless error-analysis, or no harmless error analysis at all, because I have determined that no such error has been shown in this case. Petitioner’s remaining claims, however, are subject to the Kotteakos standard, because the