Samuel H. Sheppard v. E. L. Maxwell, Warden

O’SULLIVAN, Before PHILLIPS Judges. EDWARDS, Circuit Judge. O’SULLIVAN, Circuit State Ohio Appellant, Warden of the Penitentiary, appeals a United from declaring Court order District States petitioner, of conviction void the 1954 Judgment had Sheppard. H. Dr. Samuel Common entered Court been Ohio, upon County, Cuyahoga Pleas of convicting Sheppard of jury verdict second-degree his wife.1 murder pretrial appraisal Upon of trial matters, District publicity other Sheppard did concluded Dr. de thus a fair trial and was not have guaranteed by rights prived him order His Constitution United States re granted Sheppard and to Dr. bail Penitentiary from the him Ohio leased a life under he been confined where had 1954. since his conviction sentence days granted 60 within was Ohio Shep against Dr. action further to take D.C., Maxwell, Sheppard 231 pard. v. 1964). (July Court F.Supp. This 37 fixing stayed time such the order has limitation. denial

Sheppard’s conviction and the grounds on for his motion new trial both newly discovered evidence Ap Ohio, appeal Saxbe, Atty. Court of William B. affirmed Gen. Cuyahoga County, Columbus, Ohio, State Corrigan, peals Ohio. Pros. John T. Cleveland, Atty. Cuyahoga County, Sheppard, App. 128 100 Ohio v. Sheppard, appellant, (for curiae), (1955); amicus State Ohio N.E.2d471 v. Marilyn petitioner’s Sheppard, pregnant grappling white an unidentifiable young wife, standing bludgeoned next bed. was to death “form” to his wife’s recovering, upon of her dur stated that the bedroom lakeshore home He further house, early morning ing July pursued form out of the hours of he struggling again Sheppard police knocked 1954. Dr. that he to be out while told sleep on a The had been wakened from his on the shore. evidence disclosed recently Sheppard living unfaith- room been couch the downstairs Dr. cry upstairs, from his wife. noise ascended ful to stairs, while and was knocked unconscious App. 399, application Supreme 128 N.E.2d 504 to the United Ohio States Supreme certiorari, sup- an dismissed Court for which was Ohio affirming appeal ported by newspaper the decision volumes from same Shep- publicity denial of a new trial State v. us. are before Ground ground pard, part 164 Ohio St. 131 N.E.2d 3 were first asserted in (1956), petition corpus. and affirmed conviction the instant for habeas Sheppard, 293, 135 State 165 Ohio v. St. opinion We are of the that the release judges (1956), N.E.2d 340 two dissent- Sheppard improvident, Dr. ing. Application de- for certiorari was that the District Court order should Supreme nied the United States Sheppard vacated and Dr. remanded Ohio, Court, Sheppard State custody respondent Warden U.S. 77 S.Ct. L.Ed.2d Penitentiary. the Ohio rehearing denied, Shep- (1956), and the is- Before detailed discussion of pard 323, Ohio, v. 352 U.S. us, preliminarily sues before be should (1956). Sheppard’s 1 L.Ed.2d 245 Dr. Sheppard observed that Dr. released was petition Supreme later of to the Court showing any evidentiary not because of corpus Ohio for a of de- writ habeas was jury prejudiced by that the paper the news- Sheppard Alvis, nied. State ex rel. publicity and other or that the trial Ohio N.E.2d 94 St. judge prejudice partiality or exhibited Sheppard Dr. thus has benefit trial, in his conduct of the nor because by processes (cid:127)of provided all the of law jurors’ of that the calls evidence Ohio, the State of and the United States any improprieties. their homes contained Supreme Court did not see fit to take Judge presumed The District that the case for its review. judge and the must have been so corpus proceeding The habeas in- here by publicity affected and other events volved was in commenced the United discharge toas re- be unable their April States District Court spective responsibilities keeping charging, amended, separate as some 23 Reviewing constitutional standards. Sheppard’s constitutional defects in con- substantially same record as did the already viction. of Some these had been Judge here, appellate District ma- by found without merit courts Ohio chinery Ohio, challenged so, do Indicating and others were new. presumed unable to discern evils now probably view that there other con- Judge. by the a District Aware that as imperfections Shep- stitutional in Dr. rule, matter of formal denial certiorari pard’s trial, Judge the District bottomed by Supreme the United States Court does separate grounds, his decision on four bespeak approval not its of a state court (1) newspaper publicity before and dur- decision, we do mention that critical ing Sheppard trial, the trial denied fair points by Sheppard now made Dr. did not (2) disquali- should have Supreme excite the to take for Court himself, fied (3) Sheppard evidence that review this case now characterized had refused to take a lie detector test justice.” mockery District “a as and that another witness had taken such brought improperly test was Judge’s comprehensive before The District jury, (4) charge and the bailiffs painstakingly prepared opinion and ex after the cause searching was submitted hibits his and laudable zeal to improperly to it protect allowed individual Sheppard’s Dr. constitutional telephone to make rights. calls their families. He cast a wide and fine net over upon passed Grounds and 4 were background, Sheppard’s in the Dr. trial and its Appeals Ohio Supreme Court gathering many and imperfections each Court and were found to be without of which was to have offended found They upon merit. were also relied in the United States Constitution.2 This con- Judge said, 2. petitioner’s The District rights, “The Court tions of constitutional * ** separate e., found grant change five viola- i. failure to of venue notwithstanding privileges that that elusion is reached solicitous their points unimpaired. nine on the discussed some remain Good would also be main Court, greater product prose- judges of Common Pleas restraint Ohio Appeals, Supreme who the Court cutors other members of the bar indulge Court, public did not find error or truculent announce- constitutional Sheppard plans vice of their trial ammunition. ment “did not itself to at least commend question be dis An should initial four members States Su [United respondent posed now of. The warden preme] falling as those Court within charges was with District Court considerations should lead this jurisdiction to the instant entertain out re exercise its discretion in asserting action, corpus that Dr. habeas viewing Shep lower court’s decision.” Sheppard remedies exhausted has not pard Ohio, v. State of Ohio, available in the state courts still (remarks 118, 119, 1 77 S.Ct. L.Ed.2d citing He contends U.S.C.A. § Frankfurter, J.). points now Other delayed application appeal is still magnitude found to be constitutional petitioner Ohio Re under available evidently sig appear did not sufficient errors al Code 2953.05 vised § prompt Sheppard’s nificance to coun Dr. court, ready considered the Ohio appeal. sel to assert them as error 2725.02, under Revised Code Ohio § question lie detector Aside from corpus may presently also em habeas merit, evidence, find without we which ployed present federal constitutional to judgment Court can- the District of the questions In his to the Ohio courts. willing to are unless we not be affirmed petition corpus, to habeas answer for jurors who accept that its conclusion pe however, respondent admitted “that wittingly were, un- or heard this in remedies titioner has exhausted all his ” * ** oaths; that wittingly, to their false of Wheth the courts Ohio. judge, start trial deceased before judicial response a er such constitutes corpus proceeding, was of this habeas foreclosing present considera admission sitting guilty impropriety a as jurisdictional question tion of the and Sheppard judge cannot at trial. We right whether, assuming the court’s to notwithstanding conclusions, join in such remedies, pe consider now exhaustion of Judge’s agreement District our with the has state remedies titioner exhausted his some of the conduct of characterization required by 28 as U.S.C.A. § being press of the Cleveland as shameful them, interesting pass questions. We certainly journalism, conducive to the however, believing the District since judiciary’s continuing concern for Judge application has entertained the for press at freedom insists should merits, corpus habeas and ruled on the Contempo- it. all times be accorded to right should, to, dispose we have the and greatly rary society American be would appeal before us on its merits. press those members of the benefited if Particularly is this so since the result of of- and other media of information who our a vindica determination sense regard Compare fend as conscious of were tion the state courts. responsibilities as devoted their Third Circuit rule that is not exhaustion newspa- petitioner or a continuance in view of the determination was not af- per publicity trial; inability required by before forded a fair trial due maintaining impartial process because of clause of the Fourteenth Amend- publicity during trial; failure of the are cumu- ment. And when these errors disqualify although lated, only trial himself the trial can viewed as a uncertainty impartial- mockery justice. reason, there was as to his For ity; improper necessary of lie introduction detector is not to consider the remain- testimony stipulated issues, test unauthorized commu- . der the 23 jury during range having significant merit nications to the their delib- from (Em- F.Supp. erations. Each aforementioned merit all.” 231 no hy require phasis supplied.) errors is sufficient to itself 712 against ruling required prior Special seating bizarre. facilities petition, prisoner’s reporters repre

merits of a state for and columnists Myers, senting papers major United States ex rel. Drew v. 327 and all local (CA 3, 1964); Thompson, F.2d In 174 re news services were installed 1962); Ernst, (CA 3, Special F.2d In re courtroom. rooms denied, 3, 1961), (CA Building 294 F.2d 556 cert. Criminal Courts U.S. L.Ed.2d equipped and tele broadcasters atmosphere casters. In this holiday’ media, ‘Roman news We shall discuss the merits under Sheppard Sam stood trial for his headings Publicity, Disqualification life.” 135 N.E. Ohio St. Judge Blythin, Evidence, Lie Detector 2d 342. Jurors, Communications with and Other Questions. here, however, It should be observed device, law, procedural that no rule of no 1) Publicity. guarantee and no constitutional could of Dr. then or now erase the murder We should at the outset confess circumstances; Sheppard’s or its wife temptation yield today’s a certain Sheppard inevitably such events cast the accelerating current of excitement setting graphically into the so de- coverage press concern about undue by Judge scribed Bell. ac- Bell’s charges trials, criminal and to affirm merely observation, view, curate in our petitioner’s release as dramatic vindica Supreme demonstrates the Ohio tion of the bar’s contention that some of fully subject Court was be- aware of the its own members and some of the various fore it. The fact that two of the Ohio media of information have misuse searching judges bespeaks dissented rights prevented their our courts from vigor that must have attended according fair to all who are ac judges deliberations of the seven whose efficacy cused of crime. Doubts as appellate decision ended Ohio’s review propriety action, however, of such the matter us. now before supplemented are by the certain knowl edge Supreme The duty Court of judges it is our the United as federal Judge judgment preface to States also avoid a Bell’s be- state of conviction only fore it. infirmity where Justice it some Frankfurter recited constitutional may in full in be found. memorandum. The main Careful consideration of points earnestly pressed upon this case to leads the Dis- conclusion no Judge infirmity such trict and this Court are not the be- Sheppard’s infects Dr. discovery Sheppard’s present lated of conviction. frequently Dr. quoted pref atory paragraph counsel. opinion Judge to the Bell, who wrote for Supreme the Ohio examining in detail Before affirming Court in the conviction Dr. given Shep publicity Dr. nature of the Sheppard, provides appropriate introduc case, pard’s must note that he it is well to publicity tion to the aspect present carry demonstrating the the burden of case: As in his conviction. constitutional vice mystery, “Murder society, sex the First in another stated Circuit suspense were question combined publicity case, whether “[t]he intrigue case in such a manner as impartial to in the constitutional captivate public fancy to a sense one law and fact as is of mixed degree perhaps unparalleled challenger which the has burden * * Throughout pre- recent annals. persuasion Geagan v. Gav investigation, indictment in, 244, 1, 1961), the subse- (CA F.2d 246 cert. 292 legal quent skirmishes denied, 1247, and the 903, nine- 8 370 U.S. 82 S.Ct. trial,

week (1962). circulation-conscious edi- is L.Ed.2d 399 This burden “ tors catered to the insatiable interest a one which must carried ‘not public the American speculation matter a demon- but as

713 ” 265, denied, 689, 52 reality.’ S.Ct. 284 U.S. strable rel. cert. United States ex Stemen, (1932); v. 454, 462, 581 Darcy Handy, L.Ed. State 351 76 v. U.S. 76 310, App. 309, N.E.2d 662 1331, 106 (1956) 965, 90 Ohio L.Ed. 1338 S.Ct. 100 949, denied, (1951), 72 S. (emphasis cert. 342 U.S. supplied); Stroble v. State (1952); 564, v. 181, State 198, 96 L.Ed. California, Ct. 705 343 U.S. 72 S. 576, 13 872, Deem, N.E.2d (1952). 97 599, 607, 154 Ohio St. 885 Ct. 96 L.Ed. Sheppard, Ohio (1951); 165 St. State v. See also Adams ex rel. v. United States (1956), 296, 293, cert. McCann, 281, 340 269, 236, 135 N.E.2d 63 317 S.Ct. U.S. 118, 910, L. 1 denied, 268, (1942). 352 77 87 U.S. L.Ed. 276 (1956). is law Ed.2d 119 Such charged Formally, the errors Law Criminal C.J.S. other states. 24A publicity in this area of are the District 1866, 16 1864, 1865, p. & n. 715 §§ change Judge’s for motions a denial of dealing particularly (1962). And postponement trial, venue, a for publicity, allegedly prejudicial It is law mistrial.3 Ohio v. United Estes well. Federal rule as judge’s these are matters for dis 1964), 5, (CA States, 609, 614 335 F.2d cretion, subject except review 656, 964, denied, 85 S.Ct. 379 U.S. cert. State, abuse thereof. Townsend v. 17 (1965); United States 13 L.Ed.2d 559 N.S., Cir.Ct.R., 380, Ohio 25 Cir. Ohio 414, 416-417 Lombardozzi, F.2d 335 v. 408, aff’d, 584, Dec. 88 Ohio St. 106 N.E. 914, denied, 2, U.S. (CA 1964), 379 cert. (1913); State, 1083 Richards 43 v. Ohio (1964); 185 261, 13 L.Ed.2d 85 S.Ct. App. 212, 215, (1932); 183 N.E. 36 (CA 6, Gray, 178 v. 323 F.2d Hoffa 1963), cert. Dorger State, 199, App. 415, 419, 907, denied, v. 40 Ohio 84 S.Ct. (1931), appeal dismissed, (1963); States N.E. 143 United 11 L.Ed.2d 147 (CA Decker, (1931), F.2d Ohio St. N.E. 881 v. stipulation likely 3. A conviction of issues in lead to more District permitting questions penalty peti- Court raised the than whether death living rights by publica- tioner’s tion trial, quester refreshment violated relaxation and exposure home, possible of a list veniremen in even with the advance of judge’s publicity. advocates Eminent the trial extracurial failure se- point. sponte. disagreement might on the sua inbe The Dis- Provenzano, 334 F. trict stated these issues were Cf. United States con- 3, 1964), publicity (CA heading, cert. denied sidered under the 2d appears deprivation L.Ed.2d he found a 85 S.Ct. 379 U.S. 544 process speculate due now in each cannot claim. We We are unable agree. why such withheld counsel as to a defense lawyer through request. many years tell As us no record who There is may regular suggestion publication have been has observed the of whether opposed by pa- the names of and there the venire made Chambers local per point they was never in advance of That the term at defense counsel. serve, opinion And we will were to courts. writer this made the Ohio certainly not, finds publication of this case context novel indeed the contention in the that “the distance, thirty constitutional of a find list at veniremen and this days trial, judge’s subjecting to do what in advance of failure thus in the vice Compare opinions requested said him. Odell veniremen to not others dur- was 10, ing 300, (CA thirty day period Hudspeth, 303 F.2d [was] v. 189 a viola- 873, petitioner’s denied, 1951), rights.” tion 72 S. U.S. constitutional 342 cert. (1951); authority 116, judicial Neither Wheeler citation of 656 nor 96 L.Ed. Ct. 363, U.S.App.D.C. support States, claim, reason is offered in 82 this v. United 165 denied, unpersuasive. (1947), 225, and we find it cert. F.2d 229 equally 448, unpersuasive 829, L.Ed. 1115 We find 92 U.S. 68 S.Ct. claim 333 States, sequester (1948); Stephan jury. based on failure 133 v. United denied, request 1943), 87, 6, (CA No cert. formal therefor was F.2d made 99 858, prosecution 781, L.Ed. 1148 time 87 or 63 S.Ct. defense. 318 U.S. speculate (1943). his We here that be noted cannot now should whether able It sponte jury sequester sua defense counsel would have welcomed failure Sheppard’s procedure, charged long on such a error not as whether insu- was jury appeal. trying lation and confinement of a degree might thought first murder case 714

1962); States, example, Bearden v. United 304 “For in Richards v. (CA 5, 1962), 212,183 State, 36, App. on F.2d 532 vacated other 43 N.E. Ohio grounds, 252, 875, 372 9 U.S. 83 S.Ct. it was held right that exercise of the (1963), remand, change on 320 L.Ed.2d 732 F. to order a of venue lies 99, (CA 5, discretion, 1963), 2d cert. de 101-103 the trial court’s nied, 922, 679, change 376 U.S. 84 S.Ct. 11 L.Ed. that a refusal to order a (1964); prejudice 2d 616 v. United venue without Greenhill it can until States, 5, 1962), (CA 298 F.2d 405 cert. be determined whether a fair and denied, 25, 830, impartial impaneled jury 83 9 371 L. U.S. S.Ct. can be * * * (1962); Ed.2d 67 Blumenfield not v. United an abuse of discretion. States, 46, (CA 8, 1960), 284 F.2d cert. system jury “If is to remain a denied, 812, 693, 365 81 S.Ct. L.Ed. U.S. 5 system part jurisprudence, our States, (1961); 2d 692 Dillon v. United litigants courts must have 97, (CA 1955), 8, 218 F.2d 103 cert. honesty faith in the inherent of our dismissed, 906, 191, 350 U.S. 76 100 performing duty citizens jurors their (1955); L.Ed. 796 Kersten United courageously and without States, 10, 1947), (CA 161 F.2d 337 cert. prospective fear or favor. theOf denied, 851, 1744, 331 U.S. 67 S.Ct. jurors pursuant called to this venire (1947); L.Ed. 1859 Shushan v. United only 14 were excused because States, 110, 117 F.2d 133 A.L.R. opinion firm formed a as to the (CA 5, 1941), denied, cert. guilt or innocence of the defendant. (1941); 61 S.Ct. 85 L.Ed. 1531 panel accepted A full before Hirsch, United States v. F.2d exhausted, this venire was and de- (CA 2, 1934), denied, 218-219 cert. fendant exercised but five of his al- U.S. 55 S.Ct. 79 L.Ed. 1686 peremptory challenges. lotted six facts, light “In the of these bar, judge In the case at the trial held light particularly of the fact in the abeyance change the motions for impaneled and sworn continuance, advising venue impartial- fairly try he would first a voir dire examination ly law, on evidence determine whether fair could be say denial of court can alleged notwithstanding selected change of venue prejudicial publicity. law, Under Ohio an abuse of discretion.” constituted proper procedure. this was Prior to Dr. Sheppard, 296- St. State v. Ohio Sheppard’s conviction, Supreme the Ohio N.E.2d approved Court had a lower court state- ment, determining whether Dr. In “The examination of Sheppard burden of dem has carried the their voir dire affords the test best onstrating unconstitutionality prejudice as to whether or not exists trial, by pervasive surrounded as it was community against de- publicity, duty inde it is our to review fendant; appears and where it pendently this voir dire examination opinions guilt the as to the of the prospective jurors the in the state court. defendant of those called for exam- 717, Dowd, 723, 81 Irvin v. jurors ination for are based on news- 1639, (1961); United 6 L.Ed.2d 751 paper opinions articles and that the Denno, States ex rel. Bloeth v. 313 F.2d so formed are not fixed but would denied, 2, 1963), (CA 372 cert. 372 yield readily evidence, it is not er- 143 83 S.Ct. 10 L.Ed.2d U.S. application ror to overrule an for a (1963); United States ex rel. Brown v. change of venue.” Townsend v. 1962), Smith, (CA 2, F.2d State, supra. denied, cert. U.S. 83 S.Ct. sustaining Geagan Gavin, ; In (1963) the conviction Dr. of 10 L.Ed.2d 11 Sheppard, Supreme said, the supra, Ohio 292 F.2d 246-247. The dire voir Summarizing (Emphasis supplied.) pages in this nearly 1600 fills examination words, opinion in different the present Each conclusion case. the of the record prejudicial questioned effect about further states that “the juror prospective was pub newspaper publicity mani so pretrial the acquaintance with his ultimately seated no have been who fest that could licity, each of those and particular time in guilty that that Cleveland swore verdict returned impartial and in his mind would have been fair publicity created had such regardless guilt or the ad innocence of their assurances or opinion to the no as his and of the affect monitions instructions not and would of the defendant F.Supp. reading judge.” dire evaluate 60. To of the voir A deliberations. finding thoroughness in turn to a sum careful this we must brief its and discloses publicity mary any pretrial publicity involved. that of the quiry as to effect gentle might We one veniremen. need choose between had on the We have public fault and of some characterization find without substantial Attorney ity as pointed insuf the Ohio General has neither counsel “nothing and innocuous ficiency impropriety in We indeed more than inane it. present present reporting” justification counsel’s and counsel’s bor for find no Sheppard City condemnation of of Cleveland rowed assertion that ” “ “jungle The ‘a of wolves.” trial as God-damned shame.’ turned into been Judge’s opinion dire tran details we of the voir District what Our own review of it. script extensive assume he considered the worst it clear that makes review, juror by questioning court From and our own each his recital we given attempt general summary counsel, of its char and the admonitions began report them, forcefully impressed on their con acter. with It brutality Sheppard. responsibility and their solemn murder of Mrs. sciences nothing duty Sheppard’s what the murder ver but and Dr. their to consider properly in the court sion of its bizarre circumstances com came before them page, ex headline it is bined to make it front room. Since obvious sup jurors news. This as the im affords no inevitable amination of only petitioner’s position, speculation port for mediate officials Early part publicity question public re as to who had it. done news case, police ef mains in the as it has been sub stories contained accounts us, question Sheppard exists some forts to Dr. and noted mitted whether there disregarding jurors’ day unani the fact that from the of the murder basis generally impartiality. acted, police he talked statements mous sworn nothing support only find of two and direction with the advice We are offered Petersilge unwitting ing perjury lawyers, in William Arthur mass —or obey Corrigan, crim competence jurors their the latter leader of beyond publicity Throughout were the nature of the inal bar of Cleveland. oaths — laudatory ruled, many how interest itself. The District Court human stories ** * own, ever, Sheppard’s has his that “This Court career. His Dr. finding pub attorneys’ compunction in ex no extensive brother’s given prejudicial petitioner licity culpatory also was so statements were however, page prominence. Soon, dis assurances must be front ** regarded F.Supp. increasing impatience, there case, judge’s particular 4. The trial of the im- and who can awareness ble to the portance portrayed honestly of the voir dire is world close out the rest following admonition, given bring to some a curtain the moment and prospective jurors: may alternate on all he have down information impartial juror sources, “A fair and an is a about the matter from other juror patiently guided entirely by who can sit here the evidence and be who can listen to of the evidence that as to all of the Court the instructions produced applicable particular a case and to the instruc- law to applica- of court as to the law tions case.” evidencing began weal; appear high duty protect public news items its press’ Sheppard presses frequently that Dr. belief was it the exercise of this being unduly right crusading sheltered. The Cleveland claimed That zeal. violently particular wrong became it can be and that often it sacri Press good critical what its editor considered fices taste and fairness circula police press rarely in failure of vestigation authorities to tion is es admitted the fourth urged quick Certainly of the crime. It tate. charge Press’ dis Cleveland “grilling” apprehension duty Shep de its claimed husband, pard adequately ceased’s who was at least once case could have been suspect.” pursued characterized as “chief with less obtrusiveness. We Sheppard’s Bay Dr. de refusal to take a lie need not here decide whether headlined, Village Cuyahoga authorities, tector test was but attention or the given explanation was also County police to his that coroner or the Cleveland testing provided he urging felt that such could be mis did or did not need the leading because his emotional condi the Cleveland Press.5 It not been has reliability tion and his doubt of the police asserted that authorities were Bay charged such tests. It was intimated that them, without the faults al Village authorities, friendly Shep might though fairly to Dr. it inferred pard, joining attorneys were meddling his probably impeded sur the Press’ rounding protec him helped. with undeserved more than it Certainly sophistication tion. little emphasized It should be that nowhere required for a reader to become aware any in the news items is there or hint the Cleveland Press entertained suggestion Sheppard that Dr. confessed strong suspicion Sheppard that Dr. had guilt, any or admitted his or claim that wife, although killed his at times the he had criminal record or had been suggested Sheppard Press should any exemplary citizen, other than an suspicion clear from himself submit press clear assertion that or the ting adequate questioning. All of police direct evidence of his this was indeed stated in more violent guilt. press by police Comments to the language employ colorful than we officials, prosecutors, and even occasion attempting to summarize it. Accom ally propriety, exceeded the bounds of panying progress the accounts of the investigation but too reports revealed no more than that of Dr. Sheppard’s guilt thought Sheppard steadfast denial some that Dr. presumably guilty. pretrial accurate accounts his In pub own addition to the early, self-exculpatory licity narration opin set forth in the District Court night. ion, press events the murder papers published the Cleveland also always right has prod pub emphasizing Sheppard’s claimed the items prot Dr. officials, lic obedient to estations of what considers innocence.6 5. help people The dissent states that a Cleveland Press have been trained to and de- representative public my life, saving made boast voted life to commit such paper’s handling Sheppard revolting a terrible and crime?” story produced trial. We cannot ac- “Sheppard Lawyers Hit Stories on curately assess the Press’ self-evaluation Murder.” journalistic prowess. n of its own Sheppard’s “Dr. Statement Issued to Samples Gossip.” of headlines in the Cleveland Answer Press, News, “Bay Reporter.” the Cleveland and the Cleve- Doctor Talks $10,000 up land Plain Slay- Dealer are: “Husband Puts Eor My “Exclusive! T Loved Wife —She er.” Me,’ Sheppard Loved Tells News Re- “Text of Doctor’s Statement on his porter.” Offer of Reward.” Story.” Help “Dr. Sam Writes His Own Will “Doctor in Hunt for Death Guilty Weapon Today.” “I am Not Murder My Wife, Marilyn. I, Heights High.” How could who “Honored Athlete at Vanderburgh County and Evansville cases relied to the two turn then We releases, ruling police press upon officials issued by District Court intensively publicized, pe- per deprived pretrial publicity se which were such petitioner Dowd, stating had con- trial, Irvin v. a fair titioner of to the six murders.’ 6 L.Ed.2d 81 S.Ct. 366 U.S. fessed of Lou- (1961), v. State 751 isiana, and Rideau “ * * * opinions, not curbstone guilt even only petitioner’s but toas case each L.Ed.2d 663 In re- punishment should he what as to Supreme set aside United States on and recorded ceive, solicited had been state court convictions which roving by re- a public streets highest affirmed in the courts those broadcast porter, later were against charges pub- prejudicial states * * * local stations. over licity. prejudice in each It held that the [newspaper, radio stories These great was so traditional voir his the details revealed T.V.] procedures dire and admonitions were including reference background, a unavailing is to insure a fair trial. It juvenile, awhen crimes committed publicity clear in these that the involved almost for arson his convictions significantly cases was different from burglary and years previously, for surrounding Sheppard. publicity Dr. charg- by on AWOL a court-martial Dowd, In Irvin v. the Indiana court accused He war. es change denied second of venue. The The being parole violator. Supreme Court these facts: recited police line- his announced headlines “ identification, a lie up faced murders were committed that he ‘Six Evansville, Indiana, placed vicinity test, had been detector and four the six December and that two in of the crime scene crimes, petitioner The extensive- but March 1955. were solved murders Finally, by ly lo- news media covered refused confess. cality, great to the six excitement aroused his announced confession indignation throughout Vander- his indict- the fact of murders and burgh County, Evansville in Indiana. where four of them ment for adjoining located, petitioner’s reported Coun- They Gibson offer 99-year county approximately ty, plead guilty promised rural if determination, 30,000 petitioner sentence, inhabitants. also the but April 8, hand, prosecutor arrested other on the Shortly thereafter, penalty, the Prosecutor of and that to secure the death Bay Sheppard Says: “Dr. Returns View “Dr. Sam T Wish There Was Hospital Something Say Treat Patients.” There I Could —But ” Story Fiz- “Drunk ‘Confesses’ but Isn’t.’ Says zles.” Dr. Talks of “Jail Mate Sam Sheppard “Dr. Tells Press ‘Killer His Innocence.” ” Caught.’ Says Play Will Be “Brother Police Aimed to Corrigan “Text of Aft- Statement on Dr. Sam’s Concern.” Client, Says er Arrest Dr. Sam.” Dr. Anxious to “Brother Sam Cordial, They “Police Polite Take Take the Stand.” Witness Sheppard.” Guilty, Says; Sheppard “Not Asks “Family Bay Man Points as New No Bail.” Suspect as Hoversten Talks.” “Can’t Fair Trial —Dr. Sam.” Get Stand, “Dr. Sam is Anxious to Take Sleuth Put on Case Corri- “Own Says.” gan.” His Brother Bay. Corrigan Challenges “Battles Prowler “Dr. Steve Prosecutor’s Boy’s Story Sheppard Charge.”

Links With “Sheppard Case.” Are Home Bloodstains Herring’ [By “Dr. Hits ‘Red Ac- tests.] Steve Proven Animal’s.” defense cusation.” These headlines were followed text Brother, supporting Sheppard’s “Dr. Sam Just Like Sis- Dr. inno- claim Say ters-in-law at Trial.” cence. jury Eight petitioner to 24 in box. out the had confessed bur- the of thought operandi guilty.” glaries petitioner (the was modus of these (Emphasis supplied.) compared to that of Ibid. robberies was similarity and the the murders Coming chiefly re- to the other story noted). dramatically re- One Court, upon by Rideau lied the District layed promise to de- the a sheriff of Louisiana, facts, of we find its v. State securing petitioner’s vote his life to Dowd, gravely un- like those in Irvin by Kentucky, execution the State of supports dermine that it Dr. claim alleged petitioner where to have Sheppard’s position. also in- Rideau murders, one of the if committed six court’s a motion volved state denial of * ** Indiana failed to do so. On ground change venue, on made the of day before the trial the news- knowledge public crime in of the papers story carried the that Irvin parish an prevented the selection of orally had admitted murder impartial of jury. Supreme The Court’s (the case) Kerr victim as following ex- recital of the facts at once robbery-murder well as ‘the Mrs. poses of inappositeness its here. Holland; Mary the murder Mrs. of February evening of “On the Posey County, Wilhelmina Sailer in Lake a bank man robbed slaughter and the three members of Louisiana, kidnapped Charles, three family the Duncan in Henderson of employees, killed of the bank’s County, Ky.’” 719-720, later the A few hours one of them. 725-726, (Emphasis 81 S.Ct. 1644. Rideau, ap- petitioner, was Wilbert supplied.) lodged by police prehended Turning attempt then to the to select jail in Lake Parish in the Calcasieu impartial jury, an Supreme morning a mov- The next Charles. went on: ing picture track film with a sound panel persons. “The an ‘interview’ was made of jail consisted of 430 The court and the Sheriff itself between Rideau excused 268 of those challenges having on ‘inter- This Parish. for cause as Calcasieu opinions guilt approximately fixed tioner; 20 min- peti- view’ as to the lasted interrogation 103 were utes. It excused consisted because by objection by admissions conscientious sheriff and to the im- position perpetrated the Rideau he penalty; 20, of the death had robbery, kidnapping, allowed, and mur- peremp- maximum bank were torily challenged day filmed petitioner der. Later same State; persons a tele- over ‘interview’ was broadcast and two Charles, and jurors. alternates Lake were vision station in selected as * * * community 24,000 people An some examination of 2,783-page voir on heard it television. dire saw and record shows prospective again jurors that 370 tele- on sound film was shown or almost day an estimated point those vision the next examined on 90% (10 53,000 people. panel The fol- members audience were again lowing day never they asked broad- whether or film any opinion) station, opin- cast the same television entertained some 29,000 ion approximately to guilt ranging intensity time and this — suspicion from people mere ‘interview’ and heard the saw absolute cer- tainty.” sets. Calcasieu their television U.S. 81 S.Ct. 1645. approxi- population Parish has a deep ‘pattern “Here the and bit- mately 150,000 people. prejudice’ present ter shown to n * * * # -x- * -x- * throughout community clearly total reflected the sum “Three members of the voir dire examination of majority on voir dire convicted him had stated finally jurors placed and heard Ri- had seen concerned, indeed, Irvin is So far as dean’s televised ‘interview’ Sheppard was ac- that Dr. one occasion. seem on at least would sheriff rather the constitution more than Two corded members requires, twelve deputy for each of the Parish. Calcasieu sheriffs they requested him testified who to convict that voted counsel Rideau’s had entirely opinion cause, any to of as jurors were free these be excused for guilt The Court having per- or innocence. his of their exhausted all contrast, Irvin, by way ruled that emptory challenges, of these chal- but by lenges of cause been denied had mere existence that the “To hold for 723-725, judge.” to as the the trial 373 U.S. preconceived notion accused, (Emphasis sup- guilt 83 an S.Ct. 1417-1418. of or innocence plied.) more, to rebut sufficient is without prospective a presumption the observing Stewart, after Mr. Justice to es- impartiality juror’s would filming plan that “the the con- [the It is impossible standard. an tablish out fession and its carried telecast] lay juror aside if can the sufficient partici- cooperation the active opinion render impression or pation offi- local enforcement the law pre- the evidence on a verdict based cers,” pausing to concluded that “without 723, 81 366 U.S. in court.” sented transcript particularized examine a S.Ct. voir the dire of the members examination * * * basis think, provides no Irvin, process we jury, the law due present publicity in the ruling jury that the required in this a trial before a presump- “rebut the such as case was community people drawn who from impartial- juror’s prospective tion of had not seen and Rideau’s televised heard ” ity.” ‘interview.’ further it even set facts of Rideau opinion Ir- We are of that neither To ask Sheppard’s apart case. from Dr. holding support vin nor Rideau that entirely put aside jurors three by jurors’ testimony rejected to be had by the spectacle a confession visual jury the trial could and that fair charged pre very they defendant possibly not obtained this have been to demand indeed close innocent is sume case. that ing impossible. To believe dealing Irvin, with a In the Court was ig remain jury could that balance of eight jurors of the twelve case where jurors knew fellow of what their norant thought guilty, some of the defendant different, folly. far It was would be stating would be them that evidence unreasonable, ask a not we think The basic needed overcome this belief. ignore suspicions accusations holding found in thrust the Court’s Shep deliberating press Dr. its difficult conclusion that “it would be Compare guilt pard’s innocence. eight say opinionated each that [of 99, States, F.2d 320 Bearden v. United preconception jurors] could exclude this denied, 1963), (CA 376 5, cert. 101-103 guilt It was from his deliberations.” 679, 616 L.Ed.2d 11 84 S.Ct. U.S. background against only that should that the trial court ruled upon expressly relied not While it was rejected jurors’ have statements Court, 'by believe we District they impartial render verdict could an Bloeth rel. ex in United States decision vitiating despite opinions. their These 2, 1963), (CA Denno, 313 F.2d v. moreover, opinions, formed denied, 83 S.Ct. 372 U.S. cert. publicity only of crim- basis of Irvin’s distinguishable (1963) is L.Ed.2d record, he inal but statements grounds Irvin and upon same murders, actually in- confessed to several Rideau. cluding one he con- upon the District present case, publicity Other cases relied victed. In the States, 199 only Delaney Court, United innuendo. accusation contained 1, 1952); (CA F.2d 107 Marshall v. Unit business.” Also the court found inade- States, quate ed judge’s the district admonitions to (1959); L.Ed.2d 1250 United States v. to avoid all news accounts of the (CA 1962); Accardo, Krogmann offending pub- 298 F.2d 133 case. licity In Krogmann States, erroneously v. United 225 F.2d asserted that one of the (CA 6, 1955), immediately are all defendants had admitted the offense distinguishable involving charged during testimony as cases the ex his trial Court, appellate exercising supervisory ercise federal courts of their its supervisory power power, judge’s over trials the dis found error in the trial handling discovering trict courts. But are further distin matter after guishable Delaney on their In facts. two of the the ac- had read pretrial publicity an about accused Col counts. Our review of consid- these last Delaney, Revenue, lector of Internal in ered cases us of leaves unconvinced their coverage importance cluded extensive public of hear to issue before us. ings congressional before a subcommittee emphasized We have above that investigating alleged criminality his and publicity present involved misfeasance which the court said “afford inspire was not of a nature to calculated public preview ed the prosecu good objectivity confidence in the and against Delaney,” tion’s case without the public taste of the But news media. safeguards of a trial. It included evi neither was it of a calculated to nature Delaney’s charges bankruptcy, dence of lasting Shep opinions create as Dr. to larceny of embezzlement, pub and and a pard’s guilt. Surmise, conjecture, and lic announcement the committee chair accusation were for confes substituted referring “deplorable man to the activi sion, record, criminal direct or evidence. * * * ties Delaney” of Mr. and the prepared We are not to now hold that committee’s “why effort to find out this forgotten American citizens so have far betrayal has occurred.” fur The court heritage play” their traditional of “fair emphasized ther govern that the federal shabby reporting that such would irre ment, prosecutor case, in the criminal trievably infect the minds an entire responsible was itself for much of the metropolitan community. sys Our publicity. Marshall, publicity ap In proper tem cannot if it survive is now peared during the trial which included presume jurors, that selected with the alleged previous felony information of case, care taken in this intelligence, courage are without the involving forgery, previous convictions integrity neces drug laws, violation of the an sary to their obedience to the law’s com identification of as one who Marshall ignore pub mand the kind of prescribed drugs restricted “for Hank licity here involved. We are left rather singer’s country Williams before the position of the Court in Beck v. death.” The defendant did not take the Washington, 541, 557, 82 S.Ct. stand, admittedly but all of above 955, 964, (1962), 8 L.Ed.2d 98 where communicated to several members of the say pretrial publicity “[w]e cannot jury through news accounts. The Su was so intensive and or extensive preme point Court was careful to out panel examination of entire revealed that reversal was the exercise of “[i]n prejudice such that a court could not supervisory power our to formulate and- believe the answers of the apply proper standards for enforcement compelled pre would be to find bias of the criminal opinion law federal courts. formed aas matter of law.” ” * * * In Accardo the did accused negative holding Our that Dr. stand, take newspapers pub but Sheppard has not demonstrated an ade lished accounts his criminal record quate pretrial publicity basis in for inflammatory and other material com disregarding jurors’ assertions of paring Capone calling Accardo with impartiality dispose would be sufficient to muscling legitimate him aspect “the master petition. prefer, of this We

721 jury had selected however, emphasize been After the affirmative prospective al- ignore refusing examination as before the those reasons again Judge Blythin over- jurors, frequently ternate em Federal courts sertions. change of venue employed ploy very ruled the motions tactic here continuance, stating rulings postponing or a Blythin, their change is until an on motions for attempt venue world evidence “the best impanel jury, revealed has and what effort to select a impartial possible has get picture find whether is here in a we g., Gray, jurors. E. Hoffa 323 F.2d time. v. weeks taken almost two 178, (CA 1963), denied, thoroughly 375 180 cert. satisfied The Court impar- 11 L.Ed.2d 147 U.S. 84 S.Ct. have fair we here a States, (1963); case, try group people Blumenfield v. United tial (CA 8, 1960), any 284 F.2d de cert. conditions if and I doubt under nied, 693, 5 L.Ed. anywhere U.S. in this state time Kline, (1961); looking 2d 692 you United States better have a could (D.Minn.1962); F.Supp. group a more intelli- people and Hoffa, F.Supp. 495, whole, United gent States v. group people, aas (S.D.N.Y.1957); kind, United States v. try and the Court a case of Dioguardi, (S.D.N.Y. 33, they F.R.D. 20 36 thoroughly that is satisfied 1956); Dioguardi, people impartial 147 United States v. group of fair and F.Supp. (S.D.N.Y.1956). 421, try 422 under properly this case who can judge hope Court, trial in such a is in the guidance situation I and the the position testimony give best in to evaluate the them that able we will be to accordingly prospective ought jurors, and is it to be it manner that the given.” who he must bear the of determin brunt ing possible. whether a fair trial is record the entire Our examination of (CA Nash, 393, 8, Wolfe v. 313 397 F.2d no basis there is that us convinced leaves 1963), 817, denied, cert. 83 U.S. S.Ct. judgment rejecting for by this considered (1963); Mayo 10 L.Ed.2d 1041 qualified make to one most the Blackburn, (CA 5, 1957), 250 F.2d 645 it. denied, cert. 356 U.S. S.Ct. only focus publicity not the is Pretrial (1958); 2 L.Ed.2d 813 United States v. ruling the that Court’s of the District Bando, (CA 2, 1957), 244 F.2d Sheppard of deprived Dr. news media denied, cert. widespread publicity a surrounding trial. The fair L.Ed.2d 53 As stated the sum- is also the itself trial Mayo case, court in the outlining below, opinion marized pre- publicity part adverse involve “Whether the most which for the articles given reporters’ evidence appellee securing recitation vented from á the occurring One at the trial. and events primarily question fair trial was prospective wit- reported article that judgment of addressed to the Marilyn Sheppard testify * * ness that * would properly trial court. It ac- “Dr. as a husband had referred her weight corded examination Hyde.” did Jekyll This witness Mr. and jurors on voir dire and in- an testify, disclose such did not but difficulty choosing jury. lack of article, is not Aside from cident. * * * ground at It was on the colorful, ac- that claimed however trial; heard time of it saw and substantially of the trial were counts jurors; voir dire examination of the inaccurate. position it was in much better expand na- on the no We feel need to know and to hear the local sentiment petition- publicity, for of this trial ture change and motion for decide the error, on er’s of constitutional claim venue district than was federal considerations account is controlled just have those we court.” F.2d rather different from degrees exposure explored. Varying whatever as to the outcome of this pretrial publicity case, opinions judgments to the admitted and dire, jurors expressed only your jury but with the are to be voir single exception finally broad- room of Winchell after has the case been specific you is show- cast noted there no submitted to for below deliberation ing jurors any any con- decision. publicity. tact with the trial suggest you, too, “I would ap- emphasizes one article Petitioner particularly this is directed to those pearing during entitled “But today, you who have come do Marilyn?” speak who will Whether pendency of the trial Attorney we borrow the Ohio General’s listen to about it over comments this effort at im- words characterize radio or and do not read otherwise passioned prose “inane and innocu- newspapers. somebody pre- Have reporting, ous” ama- or as author’s you you, serve those for can immortality, teurish have reach for we is, read them—that as far as this more than confidence American reports case is concerned—have the they to believe made faithless would be of this case out and have them taken by reading it, to their oaths fact preserved if you, you may read them did. your after them content heart’s say disposed Our own this case I review of record of. in this you case judge, discloses because I that the trial think will feel better from beginning you end, will to its re- be better. peatedly employed traditional admoni- Corrigan “Mr. defense coun- [Chief jury reminding tions to the them of their May : sel] I have the Court state duty try and oath to hear and will know more solely upon before them the evidence ad- ap- about this case than what will duced in the courtroom. Because of its pear newspapers? in the thoroughness, early out in full we set an Yes, “The Court: You un- indeed. charge jury: to the whole derstand, gentlemen, ladies and the you, gentle- “And will ladies and through community has had entire men, enough again be kind to ob- kind, news that media of this kind serve the caution which the Court other, and the and discussion expressed you has heretofore to ? nothing people really who know again repeat And I will it for the case, probably, whatever about the jurors benefit of the two new who all kinds of there have been come, jurors have alternate who things floating around, is no there picture. have come into the dispute anywhere, you about that but “You are not about to talk this case get only you will here the facts that anyone. to permit You are are to consider in determination anyone you. to talk about it to You They presented this case. will be anywhere are not to remain where State, and then defense present people talking other are about it opportunity will have its among You themselves. are not to views, its if there are views to be among yourselves, talk about it presented, then let us be sure your jury room or elsewhere. relying that we on what we hear are your duty “It is from as an official sources individual authoritative juror rely entirely responsible keep citizens to on those our con- your counsel, to own listen to the sideration and decision of this case. forget evidence that from Let’s what has comes all about been wit- community. floating ness stand We are instructions the Court as to the law and now to the of our- wait serious business determining complete until all those the facts before selves what you judgment get any really are, opinion form or that from and we will

723 (1962); Cohen v. United 9 L.Ed.2d 123 on the basis this witness stand and 9, States, (CA 1962), F.2d rules that the Court of the of law denied, give you. cert. will (1962); United Holmes v. 8 L.Ed.2d 84 any formality that “Without —does 716, 718, States, A.L.R.2d 284 F.2d you what cover wanted? 1960). (CA 4, for The rationale counsel]: “Mr. Garmone [Defense presumption was stated in somewhat Yes. by Mr. Holmes different Justice words cover what “The Court: Does that half-century ago: “If the more than a you wanted? prejudice opportunity or cor mere Corrigan: Yes, that’s I “Mr. what ruption presumption that to raise a is covered, your wanted Honor. Thank they exist, maintain will be hard to it you.” jury under the conditions of trial States, repetitions present day.” this admo Holt v. United Abbreviated throughout 245, 251, nition were trial 54 L.Ed. made 31 S.Ct. U.S. recessed, usually jury whenever the the form of the that statement presumption obedi The to remember admonition and the court’s jurors ignored instructions, ent discussing case, refrain from even during publicity not been has among find no themselves. We instances only by petitioner. show overcome The expressed where defense counsel dissatis any ing any them encountered style adequacy, faction with fre publicity came when the of this quency of the court’s admonitions in this judge questioned about regard. present Neither does counsel trial at Winchell broadcast insufficiency.7 point to such Protest Shep infidelity tributing Dr. marital only court was voiced refused when they had pard. jurors advised that Two interrogate jury as to Consi broadcast, not be but would heard the below, dine broadcast discussed and when appropriate ad by it, and an influenced refused motions mistrial. given by subject was monition on the judge. request counsel also pre Defense has District Court here interrogation prejudice to their publicity ed sumed from the ac knowledge in which Sheppard’s another broadcast corded Dr. trial. We believe derogatory presumption made remarks one should to the Considine contrary, Sheppard. The trial refused Dr. assumed observing obeyed request, did not that all this he have the instructions to avoid concerning publicity be harassed with contact with think should the case the morning. showing interrogation contrary We believe them until some each before g., dis been made. itself within the has E. Estes v. United this action was that may States, (CA 609, 5, in 1964), judge, 335 and that it F.2d 615 cretion of the denied, thing A 656, 964, to do. 85 the best cert. 379 U.S. S.Ct. deed have been might that (1965); judge well 13 L.Ed.2d 559 United conclude States discreet Agueci, 817, inquiry as to repetitive and 310 478 F.2d 99 A.L.R.2d reference v. (CA 2, denied, would 1962), Guippone prejudicial defense cert. v. matters help. States, 959, A substantial than United 83 S.Ct. harm rather 372 U.S. 1013, lawyers art (1963); 10 v. skilled in the L.Ed.2d 11 Rizzo number of think, agree. 8, States, 810, (CA advocacy would, Com United 815 we 304 F.2d 609, 1962), States, pare F.2d cert. denied sub nom. Nafie 335 v. United Estes denied, States, 890, 188, (CA 1964), 5, 379 U.S. 83 United S.Ct. 615 cert. dissenting opinion case, aggressive ever in counsel The how- have able and charge. ever, satisfied We are now characterizes such admonitions made such readily “equivocal inadequate,” and understood also as that “infrequent equivocal.” judge’s the dissent’s It has not admonitions that justified. charge “equivocation” pointed any is in not been out to us that many Sheppard attacks on the conviction

724 964, 656,13 (1965); L.Ed.2d 559 speculate counsel Shall ? we now wheth- Provenzano, planning F.2d United States v. er such would have reduced denied, augmented (CA 3, 1964), cert. the so-called “carnival at- mosphere?” U.S. 85 S.Ct. 13 L.Ed.2d It is asserted also that too (1964); States, many F.2d photographs Ford v. United taken were (CA denied, 5, 1956), jury, defendant, 61-62 cert. and counsel. No 53 photographs 1 L.Ed.2d U.S. 77 S.Ct. in were allowed be taken event, any In effect the courtroom the court was in while interrogation today’s increasing this limitation of session. In view might thought aggressive per- trial to have is dissi dissatisfaction with the pated by opportunity many media, de accorded formance may news it interrogate jurors regretted on fense counsel to indeed be trial judge rigid their motion for a new Three of did not disci- trial. enforce more jurors pline questioned, representatives. but of its But thus we inquire impropriety counsel possible into can no did see fit to more find of constitu- magnitude publicity. than contacts tional in what occurred appellate could the courts that other theOn basis of the record now before challenged have been so. to do us, only guess jurors we can whether judge The claim that the pub- violated the instructions to avoid atmosphere” contributed ato “carnival licity any significant is about-the trial supported by degree. emphasis further on in presumption view In stallation the courtroom of obeyed, a micro such instructions were we must phone speakers. and loud carry sur petitioner This is hold that has failed to prising in view of the that it has demonstrating fact be the burden of denial regular practice come process to install such elec publicity. due the trial equipment courtrooms, tronic in modern The District also concluded that including occupied by those the United coverage deprived news peti- the trial States District Courts. We find no merit rights tioner of his constitutional because claim. atmosphere.” it contributed to a “carnival opinion of the District Court addi- Stress is laid in which manner tionally press criticizes activities of the judge seating the trial allocated avail- as follows: giving courtroom, able his small most naive, “The Court need not be and it press installing special toit imagination does not stretch its Now, tables them. with the reflec- recognize purposes that one of the hindsight tion and an interval photographing so often years provided, of ten has after all was to be assured that would appellate found tribunals have photographs look for their judge’s regard conduct in this with- thereby newspapers expose fault, out constitutional asserted prejudicial report- themselves to the that the trial should have done a ing. Also, newspapers edi- the ran job. We better are not told what alter- (he praising judge torials the trial adopted. native measures he should have re-election) was a candidate and Certainly power he was without to slake published photographs and sketches public thé interest. Should he then have separate of him in at least 46 issues. representatives selected news who would certainly attempt to This was an regularly be to favored with admission bring way to him around their courtroom, day’s the and let each trial thinking.” F.Supp. (Em- begin by with a scramble the unfavored phasis supplied.) gain to access? he have moved Should join appar- the trial out of into the courtroom some Even to if we were in the public pub- ently gratuitous press’ hall or auditorium where the inference as to the press lic motives, and be just the could accommodated have examined the rea- we greater jury why join presump- at a distance from the sons we cannot in the jurors a Fed- (S.D.N.Y.1964). oaths 590-591 Should that the violated their tion change examining Judge by speculate now the trial eral whether and instructions willing might postponement have publicity.8 we to of scene or Nor are assume venality timidity way judicial judicial we to some the or offered a administer any away prospec- effect would have to to find catharsis to cleanse all assume read, seen, judge jurors might publicity or in face of such on the the tive have entirely devoid of of a which is heard a matter of interest record about such killing Sheppard? his on do not of trial misconduct We evidence of Mrs. part. speculative think that review such judge’s now be should trial discretion ponder flamboyant We whether the indulged in context of this case. shabby pretrial sometimes exhibitions of Judge Blythin up es- his own summed press in this case would have had a following of the in the timate situation greater tendency predispose prospec- to language: early suspicion guilt tive an to publicity, I do “We can’t control grand of the accused than the that a news you ever end not believe that will jury had indicted him ar- followed his you end publicity in until this case being required rest and trial for stand ease, per- I and think trial of this procedures murder. Are the our duty put haps that busi- it is our courts, justly American which we boast proceed aon ness in reverse world, the fairest in be without legal fair, honest, business-like, basis power an, jury impartial to seat notwith- disposed try it the case and have standing knowledge previous its that an State and of the of in the interest jury peers, a earlier of the accused’s certainly of Sam it in the interest is grand jury, had its indictment accused Sheppard fair whether know him of murder? do not think so. We him impartial declare would fundamentally, More we are struck guilty guilty the evidence or ”** difficulty years after some ten produced. here which will be indulging proposed specu- trial of in petitioner failed We hold that lation that held some been other proving that to meet his burden of Ohio, county press, the interest publicity pretrial discussed and trial subsided, the radio and T.V. would have process lawof or denied him due above county or some rural citizens of equal protection. its in the colorful would be less interested 2) judge. Disqualification trial brothers in the events involved than their long big petition- city. held that The District Was interest rights ago Scopes violated held trial it was constitutional less because er’s judge recuse failed to rural area of Tennessee? Had the trial because sponte presiding at the judge postpone from trial himself sua here decided month, months, year, conclu- Sheppard of this trial a six or trial. The basis pretrial would not and more colorful cries remarks fresh sion was some alleged made, righteous indignation Judge Blythin heard to have from today’s indicating Sheppard ? all information media belief alleged place guilty. court time should As the case of Whither completely attempt jury, partiality and bias prejudice run to seat a presumed news, judge at the same been disinfected all of the trial have Pey- intelligent? Compare any proof time Rees without (CA 4, ton, 1965); anything in the conduct 341 F.2d did or said F.Supp. Cohn, to or be attributed United States v. that could jury’s photographs This deliberations. 8. The taken of the dissent mentions start however, juror taking enterprise, family picture does of the Mancini home today’s away portray of some while she at It the brashness was trial. photographers. be Mrs was an news should noted that Mancini discharged juror, before alternate 726 against prejudice demonstrated

which We believe that the District petitioner. Judge misapprehension was under a assuming Judge Blythin that because finding from material which this charges against could not answer the light was- came to in made after the him, charges such constituted “uncon petition corpus stant filed. habeas was Judge Blythin troverted evidence” that put There was a evidence statement had made the statements attributed to Dorothy columnist, York New one Kil many him. There are circumstances in gallen Kollmar, wherein stated that she testimony accepted need not be beginning in trial she was though formally even uncontradicted. Judge Blythin vited into the Chambers of Quock g., Ting States, E. v. United 140 judge’s and there told of the belief that 417, 420-422, 733, U.S. 11 35 L. petitioner “guilty as hell. There is 501, (1891); Ed. 502-503 Scates v. Isth question no about it.” The full account Lines, Inc., 798, mian 319 F.2d 799 alleged interesting of this interview (CA 9, 1963); Ramos v. Matson Nav. opinion, is set out the District Court’s Co., 128, (CA 9, 1963); 316 F.2d 132 F.Supp. 231 64-65.9 No denial D’Orsay Equip. Co. v. United only States was made one conduct because Co., 777, Rubber 302 F.2d 779-780 Judge Blythin, so, who could done have (CA 1, 1962); Powers long v. Continental had been dead ac when he was thus Co., 386, (CA Cas. 301 F.2d 388-389 cused. The District seemed 8, 1962); Wooley Judge Blythin’s v. Great Atl. & Pac. believe that with voice Co., 78, (CA 3, 1960); Tea by death, F.2d stilled this recitation of R., Hasson v. C. I. 239 F.2d statements became “uncontroverted evi (CA 6, 1956); Jergens accepted Andrew dence Co. v. in this case and must be Conner, being (CA 6, 1942); 125 F.2d as true.” Goodyear Tire FTC, & Rubber Co. v. charge against A similar was made (CA 101 denied, F.2d 1939), cert. Judge Blythin by Murray, one Edward T. 60 S.Ct. 84 L. employee an in the office of the Clerk (1939); Ed. 468 Cyclopedia of Fed. Cuyahoga the Common Pleas Court of (3d 1951); Proc. 26.98 § ed. 11 Id. § County Sheppard at the time of the trial. (3d 1963); 47.161 Wigmore, ed. Evi His was that a discus statement dence, 2034, pp. 1940). (3d § 260-63 ed. Sheppard July, 1954, sion of the rejecting Manifold reasons for the “un prior trial, Judge Blythin to the re by pe controverted” statements adduced guil Sheppard marked that as “Sam present titioner exist case. ty as he was innocent.” As in the case prove Whether offered the matter as accusation, of the first no discussed cor merely serted or assertion, the fact of charge roboration or denial could testimony toas the uncorroborated oral provided only be because the identified person statement of a deceased is the occurrence, lawyer by witness evidence, weakest form of viewed Maher, had, name of like the accused suspicion subject scrutiny. to close judge, long since died and the accuser’s suspicion, “The courts consider with memory identity failed him as to the 10 lend to, a reluctant ear statements people present. “three or four” other person may said, what a deceased have explanation 9. No Dis- was offered why Dorothy Kilgallen, trict Court as to disclosure inAs the case of Mr. Murray put gave unim- unusual conduct of peached was not under oath and reputation explanation long death. awaited his no be- interval The accusation the columnist was not tween the event and its Nei- disclosure. Judge. explain why made It was before the District ther did he he could recall agreed identity witness, contained in a statement have to also, of one unavailable deposition” death, the “status of because of his but could not recol- agreement counsel, might no was admin- oath lect the other witnesses who liv- integrity ing istered “since the of the wit- and available. dispute.” ness is not She was not cross-examined. lacking.” by counsel, and the course especially defense when corroboration ensuing “the of the discussion stated that Evidence, p. Such 31A C.J.S. § thoroughly regarded compar- believes, be- thinks and Court as of statements “are ”* * * impartial lieves, he atively that has been from probative value. little beginning, end. Evidence, the and he be to the 1196, p. will 20 Am.Jur. § “ * * * very case justice has no in this a Court interest courts of lend other to sure that we do have unwilling than to dead ear statements of what proceed County Cop- a we with the said,” fair trial and that Polk men per Co., Lea v. had overruling How.) defense motions (21 16 trial.” While case, he the close the made at state’s the L.Ed. Whether following by remarks: corpus persuaded the made habeas factfinder be Attorney language polite of the Ohio the “Gentlemen, tendency due to that memories General that “even the best of among laymen always exists, extent,” eared to or wane dim to some anything least, that to deem says inherently the stories told find incredible the evidence in about Blythin’s by Judge or be satis- accusers case, or of counsel about the remarks pre- fied did not overcome that evidence, as some directed that regularity sumption de- of the of the expression suggestion or at least conduct, judge’s he was at ceased trial opinion the Court has formed some liberty his conviction to withhold really are, facts as to what the is, Judge Blythin regard. There in this course, this and in this connec- case moreover, “un- much contradict these no tion at the moment the Court has statements, are en- controverted” tirely obligation whatever, right, even nor re- other inconsistent with several weight even consider by Blythin. Thus,, marks made any express in mor facts opinion or, this case change denying in motions for renewed any fact, opinion in have continuance, stated venue or he guilt or as to innocence Sheppard’s interest it would inbe Dr. defendant.” upon the evi- a verdict rendered have important, Perhaps most an affidavit court, court in dence offered “and the original filed one defense counsel evidence no what that has idea whatever present proceeding relates that thought as to will be. He hasn’t even Judge Blythin asked whether when He is fortunate in the direction it. he be influenced the fact investigating would very pleased respect, about ishe participated his son cautioning Again, in this situation.” jurors crime, dis- he would he stated that to avoid before weekend recess wished, qualify himself if defense counsel publicity case, he said that all about the very clear as and “he made himself by avoiding “you publicity will feel such was, position could and that he what his very proceeds, I much better as the trial having hear sit and without going sure, I am idea what is have no any prejudices.” We find further evi- you develop than more judicial of his discernment dence Judge Blythin’s * * * business, It do. is serious court of his defense valid * * * ought equally course to be we denying petitioner’s mo- himself itself, the matter serious as we trial, tion for new keeping our- should be sure that we single is to be noted that good position “It selves citizens in the agency with the person connected or testimony can to that where we listen for, investigation prosecution of, or being any way, influenced without escapes the an- crime involved shape may be manner what sur- These in- defense. athema may rounding in the air and which have coroner, police, his as- clude no in fact.” basis attorney sistants, prosecuting witnesses, aides, trial, Judge State’s During the course foreman, grand jury, the Blythin repetitious its cut off examination 728

jury, public, bias, judge by disqualified the bailiffs and the a is not a guilt Court. The sense of search for declaration of to the his belief as justice charged person truth the declaration of of a be an offense ” * * * seem to have from Judges vanished a whole fore him. 48 C.J.S. § community magic by 89, Hand, p. Compare and over- as if Hendrix v. night. agencies every The (CA 10, 1962); news of 312 F.2d 147 United kind Mfg. Co., and character thrown in are States v. Shotwell 287 F.2d good spite 667, (CA 7, 1961), 341, In measure. all 672 aff’d 371 U.S. of charges single specific made 448, (1963); not a 83 S.Ct. 9 L.Ed.2d 357 support item is Mroz, cited in claims 221, United v. 224 136 F.2d States of Only generalities (CA made. broad are 7, 1943), dismissed, n. 4 320 cert. indulged Reviewing will, in. 805, courts 23, 487 U.S. 64 88 L.Ed. S.Ct. hope, duty passing we have the of legal questions all the involved and only by The authorities Dis cited appearing record, on the and unless finding trict his constitu very it is shown in that clear fashion tional error the failure of through plowed some extrinsic forces judge himself, to recuse rel. State ex grant the effort to the defendant a Weygandt, Justice, Pratt v. Chief 164 trial, disrupt- fair succeeded (1956); 463, Ohio St. 132 N.E.2d 191 ing effort, that it is fair to assume Tumey Ohio, 510, 47 State 273 U.S. sup- (Emphasis that none did.” 437, (1927); S.Ct. 749 re 71 L.Ed. In plied.) Murchison, 99 349 75 U.S. S.Ct. accuracy quoted (1955), inap completely The 942 L.Ed. are by Judge posite. Blythin, perma statements In the at bar it was the nently made, judge recorded when are not sub and not who determined ject memory guilt petitioner. fallible human as are the or innocence of by Weygandt dead-man ex “admissions” furnished State rel. Pratt v. was Murray Kilgallen Dorothy entirely by and Mrs. Koll divorce case to be decided Certainly give judge, compel mar. a factfinder could his and mandamus to weight resolving replacement them the issue. was refused. McFadden v. States, (CA 7, 1933), United F.2d Despite foregoing, however, below, not cited dis court also we do not feel that need we here rule tinguishable involving a trial Judge’s finding that the District fact judge jury. Similarly, without clearly within Fed.R.Civ. erroneous Ohio, Turney v. State of the United States 52(a). finding Accepting P. his that Supreme improper pro Court held state Judge Blythin in fact made state liquor visions for trial violations law him, per ments attributed to we are not village mayor before who to re petitioner suaded that has met his burden tain the amount of costs in each case his proving deprivation his constitu salary. of conviction, in addition his rights regard. tional in this Absent said, no “But or costs in fees proof early impression some that an paid him, except such cases are petitioner’s guilt Judge Bly so infected defendant, is, convicted. There there if judicial disposition thin’s impair as to fore, way mayor may be no which the ability provide petitioner a fair paid judge, for his service as' he does if trial, holding join we cannot brought not convict those before who the District Court. We find authori no » * * * him U.S. disagreement tative with the text (Emphasis supplied.) 71 L.Ed. 753. disqualified “a is not sit ques The Court also “[a] noted merely criminal case because he has an judicial may qualification tions of opinion guilt accused, as to the ” ** * validity. Thus involve constitutional guilt. or is convinced of his * * * * * personal Judges, 172, p. 30A matters bias Am.Jur. § prejudice “In the generally absence merely or seem to be matters legislative discretion.” the defendant is convicted judge may for hav Murchi- well be embarrassed 71 L.Ed. 754. In re ing emphatic Michigan “one-man made such an statement son involved the guilt.” Upon grand Supreme F.Supp. what jury” statute 65-66. and the judg the process foundations would rest Court held that due was denied weak g contempt after the judge presiding ments of our courts if where the at a lon by hearing attrib could be “one-man event set aside had also served as the grand uting judge jury” not discov proceedings to misconduct out of a whose record, charges in circum contempt in trial the arose. The dis- erable the any an where death forecloses tinction stances between these cases and the by judge. accused at bar is swer obvious. surprise It would come as no to the fact of the Much has been made legal judi profession and to an informed began eve Sheppard on trial that the ciary many that there times must be trial judicial at which of a election presiding judge impecca when a exhibits prosecution staff judge one of ble fairness and in his conduct discretion that must assume candidates. We notwithstanding of a criminal imply desire emphasized that to this is guilt his own in belief of a defendant. judge to may victory have led the for What, instance, position of the of the Sheppard’s prejudicial Dr. to conduct judge where defendant withdraws rights. to entertain would We have guilty plea? v. Kra See United States integrity our fel of the estimate low vitz, (CA 3, 1962), 303 F.2d 700 cert. any join such judicial officers low denied, 290, 9 L. 83 S.Ct. states In most inference. fairness, indeed, Ed.2d 231 Such who those that it is traditional Union occupy is the mark of the kind of men dare we required judicial from office be occupy judicial to think If no office. steward for their to by to account time ship time

judge preside could criminal trial at a submitting is If it to election. except discernment, one devoid of we presume an elec suggested that we that put judges would hard be find to handle preserve judiciary constitutional can tive pridefully our criminal be dockets. We only distance rights at some undefined large judges lieve that our are so reject day, such we election time from pro conscious their as to solemn duties we realists suggestion out of hand. As meticulously rights tect of an ac reelection those who seek that know judicial notwithstanding impres personal cused will hope conduct that their office guilt ju sions his Good innocence. not think approval, do public we but find suggest dicial manners should of course more judicial would misconduct thoughts, nondisclosure such on but conduct than to the electorate attractive the record before us are we unable as integrity we marked judges finding join impropriety of constitu possessed is like to believe magnitude. Certainly tional cannot we have who judges those as well as elected Judge’s accept the District determination “good be security of tenure presumption that such statements raise a pre prepared Nor we havior.” of constitutional unfairness and that hav judge enamored far is so sume ing judge responsi made such “the betray statements its position as to his of bilities, personal seeing would he thinks then has interest matter what no dissenting opinion newspaper identifi- 11. The The refers to what courthouse. in- Judge picture termed a “TV camera recited interview” of the cation Blythin being “as with a former Yard of- conducted Scotland terview was denying by.” program Blythin In ficer and a “television breezed conducted Edward ** * Blythin trial, Judge steps on for new courthouse motion * * * ap- gave event: where peared.” account morning, court, to- charges walked one The basis these “The usual, steps, unposed photograph showing news is an Judge Blythin the courthouse ward (a Su- approaching retired Robert Fabian saw the door there please objection most testimony the electorate.11 Additional No was made ly, inappropriate officer, is not to note of question first and the lie detector complained of, publicity much of the thoroughly was discussed on di- taking testimony cross, rect, redirect, the actual at Dr. and recross examina- Sheppard’s trial, any objection occurred the elec tions. Nor was there when after reasons, tion had For we been held. like the second officer first referred to Dr. reject Sheppard’s repetition Sheppard’s must Dr. refusal to to such test- submit charge ing. objection this Court of broadside “that context of first judges charge the elective of Ohio were so biased made—and the of constitutional prejudiced against by him could he that error following the trial found in the —is expect adjudication not fair of his case continuation second of- ” * * * state in Sheppard’s courts. ficer’s account Dr. volun- 3) Lie tary detector evidence. police, to the communications which presence were made of his counsel. Village Houk, Bay Mayor partially excerpt haveWe reduced this state, witness for the his ver buttressed form. narrative acity, objection, by over defense disclos completed that When tour was . . ing that he had submitted to a lie detector we had some with conversation Dr. give test. He allowed was not re Petersilge and Mr. Sam and Mr. Cor- sults of This found not the test. was rigan. ... him I asked if he to have been reversible error the Ohio could into officeand a come make appellate Sheppard, courts. State v. writing telling statement in us supra, App. 345, 388, 100 Ohio N.E. night July facts about the 3rd. 471, aff’d, Sheppard, 2d State 165 Ohio agreed itAnd was I that to be was 293, 135 St. N.E.2d We are satisfied telephone called on the nine o’clock process question presented no due is Saturday July morning, Mr. 10th. subject. this Details of the Houk tes Corrigan said he would call me about timony are Court set District forth 9 m. . . a. . At about 8:20 or Judge opinion District indi wherein the A.M., July Stephen 8:25 Sheppard, Dr. 10th standing that, alone, cates the Houk af Sheppard Dr. Samuel might fair not constitutional stat Petersilge Mr. into our office. came ure. prepared He he said was to make a pretrial press accounts, In the being refer- statement. Then inter- after Shep- frequently ence half, was made to Dr. viewed for an hour he pard’s refusal to take a detector test. lie taken into office on the our reported These same also accounts fourth floor where he made a state- initially unwilling- explained ment, he that his typed. That state- the test his ness submit to from arose ment has been into the offered evi- overwrought then He emotional state. No. dence. State’s Exhibit 48 is the assigned later his continued refusal statement that the defendant made family. the advice of his counsel and his at our officeon 10th. After trial, gave Upon police two officers evi- defendant made statement this writing, dence of his refusal test. take the I next time that saw perintendent Yard) jury’s Scotland -with deliberations. ence” very contraption However, small Mr. Ms hand. identified event Bly- said, morning, Judge Fabian ‘Good Plain follows: “Cor- Cleveland Dealer as thin, morning.’ by reporters, nice .The ‘Good court said Pleas nered Common morning, Blythin going Mr. Fabian.’ These Edward announced he was words, very Sheppard re- as near as the court can to let murder continue passed. them, despite record-breaking member no There was to deliberate any period conversation kind about it has been out.” subject.” Judge Blythin on trial or other areWe unable to convict pho- witting unwitting The dissent also refers to a news or from misconduct tograph showing which is characterized as these events. Judge Blythin “holding press confer- his him pard’s Richard made that he thought wanted Corrigan, Mr. sible to serve this self unbeknownst crime. ent. meet wherever he wanted eliminate where this test would be where “A. designated place “Q. detector “Q. home, onwas myself And what did he Now, I said I me counsel] I asked him again and Dr. over suspect. might be, test, yourself in one help some did July and we will take Ijhis anywhere, regardless of try spoke asked you us anyone at a 12th. Stephen Petersilge morning at some suggestion to eliminate He crime—solve state I would “Why designated him if he every way pos- to least stated brother, Dr. I say but to go. made ? saw him. way?” don’t him to take him you to yourself him [Shep- that .1 that? pres- him- time Mr. will you he lie at whatever will take here, anyway, choice. not Mr. If “Mr. “Mr. Mahon: We haven’t Court also “The Court: sults of “The “Mr. Mahon: any results. sults here. the reasons “Mr. The evidence asked to “The Court: go beyond ^[******] evidence. jury. only Petersilge: Petersilge: Court: that test are not admissible He is under no has take to take what we have to advise the should also be I please, an They are not know, it, is here not, Well, they are not We are option it. he refused. Petersilge. That’s Just a but we but we All that he was that the whether request the right. right, but obligation evidence. stated moment. need not here. offering any re- that he Now, re- he to jury he the Court tells that Petersilge: Objection, your “Mr. it, period. take We doesn’t have to prosecutor keeps Now, Honor. right stop will there. asking Sheppard Dr. about whether “Q. any further conver- Was there willing test, was a lie a lie de- to take sation there on the 12th? test, Appeals tector and the county of this has held that re- you give said, I “A. me an ‘Will not ad- sults of a lie detector test are very fu- answer on that in the near from missible in evidence. It follows upon says, only ture?’ He ‘I’ll act that it makes no difference my my family advice at- ” Sheppard he whether Dr. said that torneys.’ would he re- take the test whether Shep- statement, The Exhibit fused to take the test. pard’s voluntary exculpatory statement Well, “The he has answered Court: suggestion and his answers to the officer’s question. The Court in- will given of a lie detector test were volun- struct the the matter. on tarily presence attorneys. of his objection, Despite Shep- the above Dr. Petersilge: Exception. “Mr. pard testifying when in his own behalf “Q. say? did he What by counsel, told direct examination his says, says, ‘No,’ ‘I’ll be “A. He he request about the to first that he submit guided by my family the advice of lie he told detector test and stated that my attorneys.” willing he to submit the officers would be such to examination “if it was a reliable Parrino, “The Mr. Court: subject by alluded to test.” The say to like to a word Court would prosecution the clos- and the defense in gentlemen Ladies and now. objection. ing again arguments, without jury, you of the not to under- any questions nor counsel Neither District stand these ruling any obligated any point person to decisions unconstitu- lie to take testimony person own tional the admission of that a test. A has his detector 732 objections Mayor testimony criminal refused to defendant has sub- Houk’s Authority they

mit to a lie detector test. their showed awareness the nor ruling must, believe, against testimony we such mal as to rule whether found radiations from Fifth such a test has been Ohio taken. follows Amendment, newly applicable rules, Smith, App. made these v. 113 Ohio State proceedings by state (1960). Sophisti court the decision 178 N.E.2d 605 Malloy Hogan, readily v. 84 S.Ct. cated trial counsel will recall many they L.Ed.2d Cf. United occasions when have deliber Tehan, ately objection States rel. ex Shott v. 337 F.2d withheld to inadmissible (CA 6, 1964); People thereby Schiers their client evidence served California, Varying State 333 F.2d 176- well. motivate such reasons (CA 9, 1964); strategy. case, may 177 States, United Helton v. In this well counsel (CA 5, 1955); F.2d have desired obtain from the mouths Anderson, F.Supp. 267, police exculpatory Mezzatesta v. many officers the (D.Del.1964). reason, Sheppard For this we statements made Dr. appropriate investigation, partic believe it note also that course questioned Sheppard original ularly willingness counsel Dr. defense to be test privilege on his detector, failure to invoke the ed a lie and to end ex against willingness self-incrimination coro- hibited attitude an to let inquest, ner’s long and mentioned this failure talk. officers Their decision at opening closing arguments object both particular last to a answer jury. damaging thought then theory police hostility prompt their regard- conduct defense counsel ed did out the refusal not shut what had ing testimony lie detector has been dis- already subject. said on been We length cussed at we because believe it agree the that could and spares determining us the need of given should have a better instruction to precise suggested question constitutional jury, telling them that the results of by opinion of the District Court. a lie detector test not would be admis may prompt Whatever the rule when be though requested and, sible even not to appropriate objection made, is it is might so, gone do well have to further process not a of for denial due a trial say that no inference should be drawn supervision court to withhold of a seem- from an accused’s refusal submit to ingly withholding objections of deliberate jury such a His test. advice to that by tardy defense counsel to allow a they “not to understand these were change strategy. significant of It is that pre- questions any obligated person that no motion to strike extensive any person A take detector has lie test. objection subject testimony on this was obliga his own choice. He is no under made, ever no that instruction on written was, it,” indeed, tion to take whatever subject any proffered time, was perfect. However, except less than for assigned appeal and that no error was on jury on-the-spot request tell the regard. of because what in this occurred that “the test are not results that [of] justifiable We quite think it would be a admissible,” no was other instruction re inference for that sufficient to reasons quested, emphasize the court did that themselves, Sheppard’s Dr. able and ex- any no of test results were available. We perienced deliberately trial counsel made handling cannot of this mat find that object an initial decision not to deprived petitioner ter fed try time evidence. We need not at this granted rights. erally If constitutional probe specu- minds of such counsel occurred, was fault in what it was there prompted late as to what their strategy. passage quoted above nonconstitutional should error which assigned they appeal. demonstrates were aware of the have been Habeas rendering corpus employed rule the results of lie detector is not be a sub inadmissible, Taylor, appeal. g., Oyler tests in their earlier E. stitute v. for

733 1964); 260, (CA 10, ployed. 338 especially F.2d 262 & n. 3 This must be true Bannan, 399, (CA enjoyed adequate Allen v. 332 402 F.2d where an accused has 1964); 6, Ohio, opportunities appellate Barker v. State of and full for re- 1964); (CA 6, F.2d 584-585 Worth view. People Michigan, v. 291 F.2d State 4) allowing Misconduct in of bailiffs (CA 6, 1961), denied, cert. Jurors to call their families. U.S. 7 L.Ed.2d 59 provides Ohio has statute for (1961); Jones, Anderson 281 F.2d v. keeping together jury from the time (CA 6, 1960). finally they the cause is until submitted We think that the observations of the agree upon Overnight separa- a verdict. in Seventh Circuit States United ex rel. permitted adjournments during tion is Ogilvie, Townsend F.2d 843- their deliberation. Ohio Revised Code (1964) pertinent here. provides 2945.33 further § the officer pos- charge

“The permit court does not not [federal] “shall power sess a residuum to search a communication to made to them.” procedural above, Sheppard jury not record errors As noted involving rights finally sequestered constitutional not until the case was corpus time, issue a writ habeas for the At submitted. an entire floor purpose providing occupancy a new trial of a hotel set aside charge jurors the state court. officers in telephones acting “A them. The federal court in each in this fash- occupied rooms super appel- ion were dis- would constitute a connected, telephones upon late but in the officers’ tribunal and encroach state appellate stipula- rooms prerogatives; remained service. The court such corpus pro- tion of principles action facts the habeas would affront the ceeding days upon recites federalism which our federal- juridic sequestration, obviously system operates.” state their but engaged actually while were their distance, say At this cannot we that the deliberations, various members of the Sheppard’s decision of Dr. veteran coun- telephones permitted to use the objection sel to withhold to the lie detec- in the bailiffs’ rooms. prejudiced tor evidence their client. It goes saying placed by jurors. “The Sheppard’s without that Dr. calls were prove kept No conviction not records were does such. as the num- called, parties called, bers talked proud great As as we are of the tradi- with, jurors. calling or the The bail- tions of our courts and their concern for phone iffs sat next to the con- rights of those of crime we accused place, only versations took but could are aware that like all human institutions hear that half of the conversation they perfection. seldom act with It is by juror; made what was said to difficult, years searching after ten jurors by could not be heard analysis contemplative study and the bailiffs. The Court was never asked judicial announcement of some new at- permission jurors for to allow the titudes, imperfections to find some calls, permis- make these and no conduct of a trial and to conclude that given.” sion was ever any attorney or could have done job. stability a better But opinion the law While District Court’s re- respect and a nation’s foregoing its courts will stipulation, cites the there was long disappear if, event, after their also before it the entire record of the judgment may aside Court, including be set because a Common Pleas the hear- judge’s ing per- discretion petitioner’s was less than on motion for new trial fectly thought investigation exercised or because it is and the then made of the plan telephone of defense counsel was by calls. Not mentioned not the best have dissenting opin- could been em- District or Francis, testimony of bailiff those ion is the members their families? hearing is, taken the motion for at the on We do not think so. on the There trial, contrary, every new as follows: reason to believe that assurances health and wel- of the “Q. you know, your Do own fare of their loved ones would tend any knowledge, there was whether jurors’ per- to ease the minds as to telephone made out communications sonal matters them and would make any respective rooms that better, jurors. more conscientious occupied by any were members of time, Time after members jury? jury were instructed the court not phones out, “A. Their cut were anyone to communicate with con- Mr. Garmone. permit anyone cerning or this case “Q. any And were there tele- communicate with about it. them phone calls made from room they We-must assume followed the you occupied ? complaint court’s instructions. No Yes, “A. sir. disregarded they is made that these “Q. you calls, Did make the or night every instructions for some did the make the calls? they seven weeks that were allowed made in that had their husbands alongside purpose calls, ^[*] “A. ^[*] “Q. “A. No. and I sat Well, Mr. ^{[*] [*]} of the calls your presence? children, Bailiff, telephone. ^[*] they ^[*] in the chair wives, ^{[*] [*]} what was the talked to the made the -X- (cid:127)» made jurors those right ^{[*] [*]} week end with his bailiff. court’s visualize a tion in a hours he speaks deliberately disregard that session of the trial. go telephone home at the to a member of his instruction spends few juror brief each who will follow a close family It is difficult to presence of each moments he evening family and then instruc- many day’s children. judgment “The law of Ohio is that no any conviction shall be reversed “Q. any Was there conversation appears court cause unless it whatsoever about their affirmatively from the record that deliberations ? prejudiced the defendant was there- word, “A. Not one Mr. Par- from-having prevented or was rino.” 2945.83, fair trial. Revised Section The calls of the were made the Code. There is no such affirmative subject assignment ap- showing prejudice here, of an of error on and this peal, Supreme presume prejudice but the re- Court of Ohio court will not fused to find for in what as a cause reversal matter of law from the fact that happened. jurors Sheppard, telephone 165 Ohio some of State v. the made 293, 298-299, 340, St. 135 N.E.2d calls to members of their immediate Upon subject this the court said: families.” “In the situations such as those in foregoing only is not the The easy cases, Adams and Emmert it is question but, law of Ohio on in our presume prejudice

to to the defend- view, just plain Here common sense. ant as a result of the conduct of the again Judge placed the District reliance bailiff. Can the be said same on cases the facts of which disclose their per- conduct of the bailiffs here in lack of resemblance to case before mitting jurors, days who for several Adams, 141 him and us. State v. Ohio St. nights sequestered and had and been N.E.2d A.L.R. unable to see from or hear their hus- children, bands, telephone (1943); State, to wives Emmert 127 Ohio St. (1933); 187 N.E. A.L.R. Ohio cases not control these were found States, ling by Mattox v. and of this case Mat United the Ohio Court. 13 S.Ct. 36 L.Ed. 917 tox v. United States direct re involved Adams, In State v. who had a bailiff view of a federal Because the dis trial. jury senting opinion by frequently not it could that cites Mattox been told “ agree them, [y] do that. support conclusions, to ou can’t said its to we have set t you have margin if a decision Fuller’s You must reach Chief Justice out in the In stay months.” for three here facts Mattox12 because to of the in recital charge State, in totally officer different Emmert v. situation it discloses a jurors, jury present remarked to certain There of the case. of the facts from the Judge you specific Stahl “My God, all wet. to consider the trial court refused guilty establishing highly you jurors expects by a verdict to return affidavits just bad.” too you will be de don’t it prejudicial if Here and communications. inappositeness, actually questioned this obvious from three Aside fense counsel ti-ial, support Ms for new appeared motion 12. “In The case be to an outsider. yesterday, of two jury given offered the affidavits defendant noon was jurors expected had who that the bailiff of the charge delibera was their and it jury they in case after of the hour before not last an tions would submitted, passed, ‘and been heard and cause had hour return a verdict. The would they deliberating it, ver- of their while were and still more of them with nine and hearing dict,’ presence by of the ‘in and last 10:30 was reached a verdict them, part speaking jury adjourned of the night, or a and went when the get case, you Carey. “After fellows said: Col. John rooms at their him, through City, son, will be tried case it and defended of Oklahoma poison Thompson again speech there. has down in his behalf an excellent made give Ady jury. in a bottle that them fellows tried fine Mr. made a also pres- time, argu speech, And in the Mm.” at another full of and one that was hearing part jury replete and of said or a ence of the details ment and with the defendant, them, Clyde referring committed, gathered from the as crime Mattox, lawyers said: “This fellow he is the third The witnesses. statements ’ present killed.” of another has juror affidavit officers the court who were and effect, respect agree to the same of the the best one of also was Thompson, speeches Ady logical remark of the bailiff as to ever most Mr. and addition, offered, and, strong also court. so made in this It was eight including jurors, up hope gave affidavits of of Mattox all the friends just mentioned, the three ‘that after said Riner’s result but conviction. jury, very jury had been cause to the submitted were clear to the instructions jury deliberating nearly impartial, required while the of their half verdict, upon agreed and before had him hour for them. When an read case, newspaper out, jury verdict in a printed a certain to be the filed Mattox seemed published city of Wich- room. His most unconcerned man Kan., ita, Daily very pale, known as The Wichita indi face mother was and her Eagle, Thursday morning, hope. very of the date of little cated that she but 8, 1891, certainly deserving good October into introduced of a deal She is room; jury son, paper credit, by that said contained a for she has her stuck upon can, only through comment the case under considera- his trials a mother all jury, difficulties, tion upon said and that said comment the first and this is not any means, Clyde said case so under consideration has been one jury jury said presence was read to their for his life before. He is tried youthful once hearing; build, looking light the comment man of upon face, disposition. so read to said is found beardless and a nervous page paper, just fifth of said and in the third been The crime which he has page, killing column of said and -is as follows : is the man tried of a colored City years ago. “The Mattox “ ‘ retired ease—The over No Oklahoma two yesterday body killing, at noon and is still out. him evi saw do the and the ‘“ destiny Clyde against purely “The of Mattox is now him dence tial, circumstan is very strong, the hands of the twelve citizens but it is claimed ’ ” composing jury testimony.” of Kansas this those who heard all guilty 51, 142-144, ease. If he is not found murder L.Ed. 146 U.S. S.Ct. 36 13 lucky man, will he against be a for the evidence 918-919. very strong, or, least, him was at 736 jurors trial, presence motion for on their new ments were made in hear- any ing attempt jurors,” corpus made to discover

but no of the the habeas thing telephone calls, no about the court must reach its constitutional deci- jurors light attempt call the other sion was made to “in all of surround- Neglect ing such examination. of this Here there is no circumstances.” prejudice showing opportunity prove pretense prejudicial actual that enough might deny jurors by reason itself be statements made to the were any present spouses. presump- relief in the absence show their children or The ing compare prejudice, jurors of actual United tion that remained true to (CA 2, Gersh, by petition- F.2d 460 States v. 328 their instructions is fortified 1964), Mugnola neglect opportunity nom. sub v. er’s cert. denied to show his States, 992, jurors particular op- United U.S. 84 S.Ct. 377 that chose this (1964). 1919, Going portunity among many 12 L.Ed.2d 1045 be their violate yond worthy possibility, is note it instructions. In view absence any that attempt even on review of federal con direct to demonstrate or even claim improper here, victions where communications such violations we are satisfied that juror, Supreme correctly have been had with “it is well Ohio dis- prejudicial posed issue, settled that what is to a fair and that event ‘juror trial when the issue of misconduct’ present the occurrence does not a denial raised, must, process. is is matter that to a of constitutional due large extent, be left to discretion of Supreme The Court’s recent decision appellate a trial court an and that court Louisiana, in Turner v. State 379 will not reverse determination of that 466, 546, 85 U.S. 13 L.Ed.2d 424 S.Ct. court on such an issue es unless it is (1965) does not affect decision of this clearly erroneous.” Little tablished question. dealing Court was there The States, 287, (CA v. United 331 F.2d 295 following days’ with a conviction three 8, 1964), denied, 834, cert. 379 85 U.S. “continuous intimate association” 68, (1964). 13 42 S.Ct. L.Ed.2d Sev key between the and two witnesses eral other cases establish that communi prosecution, deputy for the who also were jurors, cations with even their Dispensing require- sheriffs. with the deliberations, necessarily do not void improper ment communications be g., their verdict. United States v. E. shown such a situation cannot be re- Kahaner, 459, (CA 2, 482-483 317 F.2d situation, present lated to the where we 1963), denied, cert. Corallo United v. only are shown that some members of the States, 835, 836, 62, 375 84 11 U.S. S.Ct. telephone calls to mem- made brief (1963); L.Ed.2d 65 Steiner v. United bers of their families with whom States, (CA 745, 9, 229 748-749 F.2d had, properly, quite been in continuous 1956), Pursselley denied, cert. v. United throughout association the trial. States, 953, 845, 76 U.S. 5) questions. Other Ryan (1956); L.Ed. 1476 v. United States, 328, 191 U.S.App.D.C. F.2d 779 Each the “errors” discussed above (1951), denied, cert. Duncan United v. found District con- States, deprivation process, U.S. 72 S.Ct. stitute due but opinion (1952); L.Ed. 691 United he Cavness v. with the concluded ob- States, (CA 9, 1951), together they 187 F.2d servation that taken when denied, “mockery jus- cert. 71 S.Ct. reduced the trial to a showing discussion, 95 L.Ed. 1374 tice.” Without further we ju communications had with the to a unable to attribute combination rors, accordingly, enough not of itself these several claims a constitutional individually. process. potency they to demonstrate a of due lack We have denial Cunningham, rejected publicity, So in Near 313 F.2d based on the claims (CA alleged judge, 4, 1963), com- the court bias of the ruled appear prejudicial no “[s]hould munications with the because state- anything showing im- in his favor. as fol- made that Counsel continues has been occurred; proper are no more lows: in fact we infirmity willing presume when these urges “Appellee neither asks nor lie detector the matter claims and willing ready, relief, such for ishe together than when are listed evidence any retrial and anxious to stand separately. they are considered community with an not infected atmosphere, and a favor- envenomed sug- Petitioner’s brief this court ruling upon able this issue would given gests that if we find reasons jeopardy to the 1954 cause to attach for the District insufficient however, not, to be is trial. This granting the would writ “such action any there concession that taken require a remand for further factual constitu- evidence to was sufficient remaining points.” determination of the tionally judgment support of con- urges, alternative, we Counsel that instance, for we viction the first remaining upon pass points these not re- vigorously contend that there Judge, lied on the District and as to press simply it at not. do not We petitioner upon the ar- them “will stand this time.” gument Brief addressed to them decision, Appeals affirm- The Court of in the District Court.” Petitioner Court, fully Supreme dis- ed the Ohio pro- passing upon procedural Without found it suffi- cussed the evidence and priety suggestions, of these we consider guilt submitting the issue cient in the District Court that the case made jury. App. N.E.2d Ohio is us have before and we considered that that No is made here claim found without merit other claims of the evidence court’s detailed recital judgment of constitutional vice substantially er- is adduced at the trial convicting Sheppard. Dr. attempting to assess roneous. Without innocence, guilt petitioner’s this or actual subject One further should be Shep- clearly that Dr. recital establishes briefly Sheppard’s peti mentioned. Dr. totally pard’s devoid is “so conviction tion that at his trial claimed the evidence evidentiary support” as to constitute justify constitutionally insufficient to process. Garner v. due denial of submitting guilt or innocence issue Louisiana, 368 U.S. State jury. to the was neither with This claim (1961); L.Ed.2d 207 S.Ct. hearing upon drawn nor sustained City Louisville, Thompson subject, the District Court. On (1960); 4 L.Ed.2d 80 states, petitioner’s brief (CA 10, Crouse, F.2d 316 Hall v. Judge expressly District de- “The 1964). ** *, to consider clined this issue apparently save desires Petitioner although in fairness it should be all entry something into or for a further petitioner- stated that counsel for rehearing We Court. in the District appellee brought on several occasions offered appeal has think that Ohio’s * * * to waive this claim of error. corpus proceeding to us. entire habeas required, however, No waiver was find passed upon do not it and We have and the issue remains. This Court Sheppard Dr. basis for release of power, no doubt since the has the granting or the of a new trial. transcript it is before as an Conclusion. Court, District exhibit from the uncertainty today no There is search record conclude obligatory and, indeed, proper is allegation insufficiency state that no Courts see to it Federal (Emphasis supplied.) well-taken.” anyone imprison without shall convict suggestion process the United We construe this as that due of law which duty only pass upon point find This we we Constitution demands. if States discharged, must be even at the risk of eral constitutional standards of due arrogant appearing setting process. aside a judgment by approved all of the courts concept jury The of a fundamental particular In of state. the context requires protection jury us, however, the case before we will not extra-judicial from information about give delinquent be if we considered the case.1 This doubtless can never be proper respect carefully to the considered perfectly great pub achieved in trial decisions the Ohio courts and attribute pre-trial publici lic interest because of power pro- to those courts to discern and ty.2 But this fact as no serves excuse rights tect the constitutional an ac- employ for failure to all of known approaching cused at least our Cer- own. and established for measures selection Judge tainly the District who heard this impartial jury protection an and gave study labor, to its the con- jury of that from outside influences dur scientiousness, and the commendable ing the trial itself. concern for the accused’s constitutional This trial was held a murder- rights typical which like to we think are community proximity close to shocked judiciary. fear, of our Federal We how- in the midst the date the crime ever, that this admirable led him zeal (See “unparalleled” publicity. State go beyond permissible to to find limits 293, 294, 135 Sheppard, N.E. 165 Ohio St. constitutional fault in what done During (1956)) 2d 340 the nine weeks the Ohio courts. The facts of this case jury separate of trial this to was allowed up any do not add of the situations night each to their indi and weekend Supreme which the Court of the United neighborhoods homes. vidual Such Ap- States or United States Court of gave per admonitions as the trial peals appropriate has found it strike taining to the first news media judgment high- down a affirmed testimony equivocal month of est court of a state. inadequate. judgment The order and Dis- of the During this trial were constant there trict is reversed with direction extra-judicial and communica- contacts discharge peti- writ remand the jury. Many tions with this these custody respondent. tioner to the of the extra-judicial and communica- contacts clearly with the tions establish- Judge EDWARDS, (dissent- Circuit Judge others, ed the record. toAs ing). knowledge Weinman found that flagrant implied If ever inter- tolerated should because a factual impels ference of media in a news criminal trial me record which to the same deprive a served to defendant of his con- conclusion. rights process and a stitutional due important A number of most trial, surely fair must be such case. prejudicial most news media com- Judge The United States District munications were from sources drawn corpus completely whose writ of habeas we review outside record. just declared this trial void and ordered the These were not news media inac- retry petitioner State of Ohio either curacies or debatable comments in re- By doing, porting proceedings, they repre- set him free. so court highly prejudicial Weinman did no more than fulfill deliberate sented obligation uphold supplementation sworn the Constitu- trial record. tion of the United States. I would affirm. provided Elaborate measures were covering record we review discloses news media convenience a trial which far minimum fed- fell below trial. But the standard measures which States, Dowd, 717, 722-723, Mattox v. United 146 U.S. 2. Irvin v. (1892). 13 S.Ct. L.Ed. 81 S.Ct. 6 L.Ed.2d 751 adjourn trial, 2) least He can employed prevent the could have been public briefly, peak excitement influencing until a the out- media from news passed. (or judicial election!) has employed. In a come of trial were 2945.02; v. Supreme Rizzo Ann. atmosphere Ohio Rev.Code § trial 8,1962), States, (CA 810 United 304 F.2d Roman as “a described Court of Ohio States, denied, Nafie v. media cert. United Holiday press,” the news for the 890, 188, 123 9 L.Ed.2d U.S. 83 S.Ct. frequently 371 allowed to become (1962) . where in a courtroom dominant factor The life. for his on trial defendant was jury 3) up can lock He repeated- judge presided at this trial who guarded from outside con so that it is inability ly these professed control his to 2945.31; Ann. tact. Rev.Code Ohio § noted it In fairness should events. Holovachka, F.2d 314 United States v. most difficult that he was 7, denied, (CA 1963), 374 U.S. 345 cert. position possible undertake to vulnerable 1695, 809, 1033 L.Ed.2d 83 S.Ct. 10 do so. to ; Hudspeth, (1963) F.2d Baker v. 129 10, denied, 779, (CA 1942), Baker cert. it should be stated But at the outset 201, 681, Hunter, 87 63 317 U.S. just of freedom not abuse of that was (1942); v. United L.Ed. 546 States, Stone press for the viola- which accounted 1940). (CA 6, 113 F.2d 70 trial; process in this it was tions of due 4) precautions has Absent these he judicial process This also. failure of the screening responsibilities in increased argument repeal provides of no extra-judicial influences. from immuniza- or for the First Amendment Louisiana, Turner 379 See v. State prosecution person in- tion from 466, 546, 424 L.Ed.2d U.S. 85 S.Ct. dicted for crime. (1965). assigned try a controversial A duty prohibit news media He has the great public case in midst of criminal jury. United Mattox v. contact with duty guarantee excitement has the States, power supra. to ex He has the process He also has due of law. photographers courtroom. clude from his power principal meas- do Seven so. Association, 35, Bar Canon American protect the to him to ures are available right has the Canons of Ethics.3 He Judicial charged person to a fair of a power media that to warn the news crime. with prejudicial either communications if grant in- 1) derived from side in the trial and not motion can On defendant’s he disseminated, testimony widely change court are a distant locale venue to may a mistrial. See Unit concerned that this cause his same state which is less (CA Accardo, F.2d 133 Ann. ed States v. Rev.Code with the crime. Ohio 7, 1962). Louisiana, 2311.38; Rideau v. State § 1417, 723, 10 L.Ed.2d 5) duty 373 U.S. 83 S.Ct. order the He has the any newspaper, Dowd, supra. (1963); read or listen not to Irvin v. shall Improper Putliciming restriction “Provided Gourt 3. “35. broadcasting apply Proceedings.* or televis- to the court, supervision ing, “Proceedings under in court should be con- pro- portions fitting dignity naturalization and decorum. such ducted with interrogation (other ceedings taking photographs than the in the court designed applicants) room, during carried or re- sessions of the court ceremony exclusively sessions, as a broad- out cesses between demonstrating purpose publicly televising proceed- casting an court dignity impressive dignity ings manner the essential detract from the essential participants proceedings, of naturalization.” and the serious nature and wit- distract * 1937; Adopted September testimony, giving and create mis- nesses in conceptions September 15, 1952, respect and Feb- thereto in the amended ruary per- public should not be mind of the mitted. bearing capital material This was a radio or television case. States, 106 Coppedge the trial. v. United charged Defendant was with first de- (1959); U.S.App.D.C. 272 F.2d 504 gree killing murder for the of his wife. States, United Schoeneman v. Defendant and his were last seen wife (1963); App.D.C. 110, Car- F.2d 173 midnight, July in their home about States, U.S.App.D.C. ter v. United evening. after a normal social 252 F.2d murdep reported Defendant first 6) duty m., July asserting 4, 1954, if it is called to at 6 a. He has the that he highly prejudicial ma attention been awakened his wife’s screams open fought widely terial disseminated in the and had with and been knocked living jury by community at “an wherein a is out intruder.” jury home, inquire as the to whether brutally The wife had been murdered it; so, actually if has heard read and weapon. 35 blows with an unidentified resulted; prejudice to determine whether signs physi- Defendant bore visible Krog grant so, if and a new trial. injury cal and there was medical evidence States, mann v. United 225 F.2d 220 injury as to to his neck and head. (CA 6, 1955); States, Marson v. United Defendant’s of the account events had (C.A. 6, 1953). 203 F.2d 904 vagueness important about matters 7) duty particularly injuries He has which he to be to the attributed and guard jury against any prosecution alert to out- from which the later in- guilt. side communication its delibera- ferred verdict, tions or if com- and unauthorized clearly opportunity Defendant had shown, prejudice pre- munications is night ques- to murder his on the wife sumed, and absent effective rebuttal suspect apparent sig- No tion. other grant prejudice, duty such he has the appeared nificance in the case. States, a new trial. su- Mattox v. United But normal evidence of murder- pra; States, 73 F.2d Little v. United confession, identification, motive, and 1934); (CA 10, 96 889 A.L.R. weapon lacking completely murder —was States, 522 Wheaton v. United F.2d 133 beginning investigation. at the of the (CA 8, 1943). See also Ohio Rev.Code 2945.33; Adams, Ann. State v. § As a result paucity of the of obvious Ohio proofs, St. A.L.R. 48 N.E.2d there was no immediate arrest. (1943). newspaper campaign A for a solution began In this case it must pushed be recorded to the crime and was with vigor made no effective use of incessant Cleveland’s three any of newspapers these particular by measures. The —but Cleveland Press. BACKGROUND FACTS given publicity widespread There was What follows are stark undis- suggestion police to a that defendant take puted facts shown this total record— a lie detector test and to his refusal argu- omitting legal for the moment the do so. pertaining ments to how and whether Although possible properly publicly each issue has been there had been no raised, omitting apparent also five trial cloud on horizon domestic Sheppard upon murder, family prior events issu- which I would affirm to ance of this The Cleveland writ. Press disclosed an extra- summary a) 7,099 pages) stip- 4. This volumes and drawn from which was stipulated presented as ulated an exhibit statement facts before District c) Judge, scrapbooks newspaper Five United States District printed b) Appendix clippings stipulated as A. likewise herewith original (12 transcript Judge. The an as exhibit before the District atmosphere Holi- had of a ‘Roman defendant romance which marital day’ Shep- media, laboratdry at for the news Sam technician a former with pard hospital was affiliated. stood trial his life.” State which he Sheppard, 165 Ohio St. page front The Press Cleveland N.E.2d headlines, berated and cartoons editorial slowness, inquest, an The nine weeks demanded trial verdict came after official days “protection” full deliber- of “the chief of trial and five condemned suspect,” prosecution had asked demanded the entrance ation. The degree Department first Police into the and insisted on verdict of Cleveland investigation, the arrest murder. defense asked for demanded The guilty.” “grilling” police upon defendant insisted a verdict of “not and the headquarters. The of second returned verdict degree murder. investigation by inquest, Unit, de- Police Cleveland Homicide THE THE AND TRIAL JUDGE “grilling” followed fendant’s arrest and PROSECUTOR heels demands. of these hard on right every “It is the citizen representative Later, of The Cleve- free, by judges impartial be tried public Press made the boast that land independent and as human the lot of handling Press’ the The Cleveland Sheppard ity admit.” will story produced the trial. judge’s The son a detective trial was murder, August after on weeks the Six of the who worked in the Homicide Unit first was indicted for defendant Department which se Cleveland Police by Jury degree murder a Grand after cured the defendant’s indictment presentation of the results the Cleve- Jury.6 Grand investiga- land Police Homicide Unit’s opened As the the trial on October tion. judge trial awas candidate for re-elec- 17,1954. began The trial October tion to Common in an the Pleas bench Supreme the described The Ohio Court 2,1954.® for election scheduled November setting for the trial thus: attorney prosecuting in The assistant society, mystery, sex “Murder and charge in defendant’s state’s case of the suspense in this were combined election for trial was likewise candidate intrigue in such a manner as to of Ohio— Pleas to the Common fancy captivate public to a the highest trial Ohio’s court. degree perhaps unparalleled in re- trial. the The occurred election Throughout prein- the annals. cent judge trial chief the Both the trial investigation, subse- dictment prosecutor elected. were legal nine- quent skirmishes and the prosecutor judge and the trial The trial trial, edi- week circulation-conscious picture together newspaper posed for a insatiable interest catered tors congratulating on their each other public in the American bi- of the print- picture The was mutual victories. seating Special facilities for zarre. in November ed 3, The News on Cleveland represent- reporters and columnists Appendix B). (See 1954. major ing papers local and all news resumed, was in the court- As were installed the trial defendant services judge, being Special prosecuted in the Criminal an elected rooms room. judge, Building equal respects equipped in all to the trial were Courts taking except of office. In in the the oath telecasters. broadcasters and They petitioner’s XXIX, plainly were known to 5. Art. Massachusetts Declaration Rights (1780), trial was discussed Anno. Laws of counsel. first judge p. trial assurances 32. whose § Massachusetts accepted. impartiality were upon by these relied Neither of facts are petitioner violations. constitutional trial, During reporters of this There the course a table full of judge’s picture appeared issues trial commentators within the bar of court through newspapers including of the Cleveland all jury within one foot — reading bench, poses by him the a law at box. sleeves, chambers, in his shirt book courtroom, except All other seats pausing for a camera interview with TV row, assigned very those in the last were steps of on Fabian of Scotland Yard judge repre- the trial to news media (See C), Appendix the courthouse passes. on sentatives who admitted were holding press fourth conference assigned by Half of the last row day jury deliberation on the verdict family Sheppard keep to announce his intention to them Marilyn’s family. and half to deliberating (See Appendix D). day On the first after it was sworn in, THE jury THE JURY AND posed TRIAL was called back and jury box, pictures MEDIA appear- NEWS with the ing (See Appen- in The Cleveland Press is as “The courtroom at these times E). dix cathedral, sacrosanct as guarded against raucous, im all reporter On the same afternoon a foreign passioned, influence.” The Cleveland Press was chosen as representative press accompany media case had News interest Sheppard on a tour of the home. increased as the trial date neared. On this same tour The Cleveland Press pro- The names and addresses of all helicopter photographing had a spective jurors published subsequently the murder scene and papers. published photograph thus taken. quotes Extensive from voir dire During jury’s pictures, the trial the or jurors prospective examination all jurors, those of appeared one or more in were carried. newspapers the (Cf. Appendix 40 times Every ultimately juror seated, who F). except one, testified voir dire to read- photographs pictures These included ing about the case in the Cleveland jury, judge’s the per- taken the trial papers. mission, (See at lunch in the room Every juror specific who was asked the Appendix G). question testified that a Cleveland news- They arranged repeated also included paper daily was delivered to his or her photographs of the taken home. days the five of their deliberations on jurors Seven of the twelve who render- such, Appen- verdict. For one see ed the verdict were asked and did answer dix H. they had one or more Cleveland There papers photographs were also taken to delivered their homes. during the trial the home of alter- Five of the twelve who rendered juror (and printed nate in The Cleveland the verdict had The Cleveland Press Press) picturing husband, her her moth- delivered to their homes. er, (See Appendix I). and her children photographers At the trial there were THE TRIAL immediately RULINGS inside the bar of Court be- judge fore the trial entered and im- “The rules court room conduct mediately judge after the trial left the must be such as to remove it from bench at session where desired the distractions and disturbances of photograph defendant, to jury, place, to market and maintain as or the witnesses. nearly possible atmosphere as an 7. Douglas, Justice William O. Press, (Aug. Public Trial and the Free 46 A.B.A.J. Service; the Cleve- profound undis three seats for to

conducive *** Press; for land three seats A deliberation. turbed News; enforcing for the court Cleveland three seats reasonable court Dealer; seats Plain two preserving the con Cleveland decorum room Press; right for the Associated and seat and unalienable stitutional pre and, trial, Journal American. litigant for the New York to a fair right, serving the court does such or back outside “That rail freedom the with the not interfere courtroom, the rail in this there press.” spectators. four rows of benches for spectators’ opened That first row the had As this trial assigned by warning pretrial benches have been ample events from the occupied follows, as and are the nature recited as to which we have following news aggressiveness publicity services: might the trial. attend WGAR; seats “Two seats to two WCUE; WERE; one one seat to on the Court The first matters before WNBK; WTAM; two seats to 18, 1954, motions defense October WDOK; one WEWS; seat seat one change continuance venue and WHK; one seat to one pretrial publicity based assignments WXEL, all of these be- arrangements media. De- news ing representatives of broadcast- arrange- reciting those fense counsel ing stations, tele- radio stations your pointed Honor out “Even you ments stations, and to the vision one seat yourself, to mount the when tried NEA, Newspaper Enterprise Asso- your place morning, found bench occupied ciation. taking pic- photographer tures, you him from remove “That row two the seats the bench.” assigned courtroom is follows: as day following News; Newark, Jersey, of the first from one New “The Pittsburgh colloquies and counsel Post; between Court York New setting vividly portrays of this trial: Enterprise; to the seats Post two News; to the two seats Cleveland If “MR. the Court CORRIGAN: Dealer; seats Plain two Cleveland please, I like the record to would Press, Toledo to the Cleveland bar, I show that inside stated Pittsburgh Post-Gazette, Blade, the before, table, that is a and that table Chicago Journal, the Lorain over the of the court- extends width Sun-Times, Scripps-Howard and the ; is room that this 26 courtroom Association. News feet; runs east and 48 that the table west, and that end of the the west assigned to “That the third is row is within inches of seat table six WAKR; to the International News approxi- juror the thirteenth and Service; Journal the New York mately end of the two feet from the WSRS, American; Radio Station box; has as- there been News; Heights; Cleveland Detroit signed representatives to that table News; seats are the New York assigned two following agencies: news Magazine; one to to Life Journal;

“The Akron Beacon two Post Dis- NBC and the St. Louis patch. for the seats International News Clifford, 1, 5-6, App. contempt against

8. three State v. 97 Ohio held convictions (1954), aff’d., employees for Press N.E.2d 162 Cleveland against (1954), Judge violating St. 123 N.E.2d cert. Silbert’s order Ohio denied, “picture taking was in while court U.S. Appellate L.Ed. 1259 de session.” Ohio Supreme cision, April Silbert a member 1954. Ohio decision, Pleas Court In same bench as the December Common up- Appellate these cases the Ohio in the instant ease. only Yes, the last—the row “THE “That COURT: cor- that’s is not seats courtroom rect. The Court will state for now assigned record, arrange- also, is the court- the last row of that these about 14 room which accommodates ments that counsel has now referred people. great to have all been had after consideration, applications deal in “We also to note the rec- wish space, ap- finally for but with the ord there are this courtroom proval of the Court. no There is speakers three loud a micro- and question about that at all. The phone stands front of the arrangements as to the table for chair. witness press par- members of the local incorporate things “We all these ticular, and the national news serv- your in the record before Honor in ices, were made sometime in motion, the matter our both our -perhaps Wednesday of last middle— motions, and we move at time week, as counsel has indicated. change that the —I will that. “Also, row, simple next information, “I state on on which reason that those aside for were set may I so, be corrected if parties local and the national news that the seats that I have referred services, particu- the second row assigned by Court, to were and representa- lar for the radio station designations put that certain tives, selected the actual desig- on the table and on the seats spaces within the —I the ac- mean nating the locations for differ- these space tual for each individual within organizations ent newspapers space, they placed the total their mentioned, that I have and that that tags person on them so that each assignment was made the Court will know where he sits. Wednesday of last week. “The back of that were others your that, “Am I correct designated by in the order the Court Honor? applications for them. received beg pardon. “THE COURT: I I kept for “The back seat get didn’t last seat. family Sheppard members of the say, “MR. I CORRIGAN: I un- Shep- Mrs. members of late assignments derstand that these family, pard’s other mem- whereby occupied the courtroom is public bers of the who will be ad- Ias have outlined was made mitted. Wednesday Court on last week. simple “The Court did for the Is that correct? very space reason that the is so lim- Oh, “THE COURT: no. That is courtroom, ited in the is a there not true. The Court will state as to people request space for far more happened, get you what also when than can all. be accommodated at through. during “The will not Court “MR. CORRIGAN: I noticed be- any progress permit of this trial fore we to came the courtroom that courtroom, standees and we the three rows of seats back of the going to are conduct this trial with posted rail—there was on them a that kind decorum befits which sign designating they to whom be- any a trial criminal case. longed, designat- signs and that the ed system these various radio stations and public “As to the address newspapers these various courtroom, I have within the that was in- mentioned, and request that was done in stalled at the the Court advance hear, trial. Is cor- par- because it is difficult to rect? ticularly witnesses, in the back overnight did for very he this case home difficult courtroom, is and it —as subsequent jurors weeks this nine-week hear wit- for the to at times (It pointed no out that trial. should be where in a location We are nesses. sequester jury light was ever industry, motion industry, it to is there made.) good traffic, true, truck deal is very other, place diffi- and it is and impaneling 28, after twelve On October times. in which hear at cult to finally judge jurors, denied change of motion venue. this loud “Let it be noted judge speakers also, speaker these loud On October 28 —that gave jury accommodation of are for the sole the basic “admonition” press jurors, employed of the the members in this he trial: public the court- in the rear of and room, gentlemen jury, and “Ladies especially for counsel at and you have been now that sworn trial table. for the trial this “There is no commmunication you court- are about to leave any going from inside the courtroom room, do what is Court source, ar- all of these outside and re- calls for the law of this state by rangements approved have been al- quires I have that he shall do. pre- you ready the Court. law what the stated again scribes, I state it and will “Does that the- cover misunder- no order that there be Yes. “MR. If the CORRIGAN: standing it. whatever about please, move that I now anyone table taken inside bar talk to from “You not to are courtroom; any removed in con- from case or matter about this signs placed any been that the that have with it at time nection spectators’ progress You are on the three rows of this trial. you and, removed, permit I benches be as under- not to others to talk any- your stand, cards, remain has issued You are not to Honor about it. people talk- other are admission cards. where where themselves, among ing about it right. “THE That’s COURT: an have interest whether “MR. CORRIGAN: And that the You are not to discuss case or not. whereby Court rescind the order your among yourselves, either only this courtroom is admission to jury room or elsewhere. I card issued him. so move. duty person has “It of a who “THE COURT: Overruled. juror sit here been as a selected Exception. “MR. CORRIGAN: patiently the evi- until all wait may “THE COURT: Now we the in- received and dence has been juror?” have the first Court have been structions of the your you are received denying these motions In addition to decision room for deliberation judge a motion for the trial also denied you before discuss matter under advisement continuance and took you meantime, manner, and in the change until an the motion of venue individually your keep own impanel attempt jury had been made. any opinion not to form counsel and October the trial denied venue, On judgment final until the whatever change defendant’s motion for your you step room are in when holding jury impaneled demon- the and for decision deliberation a strated that fair trial could be had case. Cleveland. enough good you to ob- “Will judge prog- On that same the trial serve that caution date sent sug- try ress trial ? And I would who had chosen of the been to gest already you, by reporter, being I to as have done taken at 11:00 you m., Wednesday, don’t so—I know whether a. o’clock November you 3,1954: all or here at not—that time “ newspapers you do not read the and jury discharged ‘After the was do not listen now to comments over morning session, at end of the by any the radio means until or other request newspapers, at the of the disposed has this case somebody been Have of. jury brought was into back things preserve those room and the room for sat you day you until some future when minutes, long, matter of—how have lots of will time to look them 10 minutes? over. “ yes. minutes, Clifford: 10 ‘Mr. “Now, any formality without at Corrigan: (Continuing) “‘Mr. all, adjourned we bewill until 9:15 subjected photogra- And were to morning.” tomorrow phy, photographing television (It portion by least cameramen should be noted that the at .cameras talking chairs, admonition which dealt with who on mounted themselves allowing anyone judge’s case, to about the bench and various them, phrased parts in direct of the room. This was all talk commanding language. portion presence That done out of the of de- pertaining fendant, Sheppard.’) media the admonition news Sam suggest employed “I would the words “MR. I want to CORRIGAN: also you.” introduce, part my motion, De- as fendant’s Exhibits Subsequent to October 28 a form of given just “(Defendant’s four this “admonition” was Exhibits charge up identification.) times of the additional 65 were marked for on December 17. On three of jury “MR. CORRIGAN: When “suggest” those occasions the word premises yesterday visited under Finally employed. on December Court, the order there was judge employed the somewhat more great reporters there, least num- language, direct not read “Please do cameramen, ber of and the Cleveland newspapers,” etc.) helicopter Press hired a which con- swing tinued over house and ju- October, Thus the 28th of basic great pictures take with a deal of rulings major dicial four meas- noise racket. judge pro- ures available to the trial process due tect had jury through been made. “When went house, accompanied it was a re- 2, 1954, On November the trial was porter of Press, the Cleveland Mr. adjourned day. for election The trial Brady. overwhelmingly. was re-elected my I “So renew all motions at this finally On November 3 the con- time. subsequent stituted was sworn in. The They “THE COURT: all be over- day events of that were recorded in the ruled, exceptions noted.” following colloquy morning on the (It November 4: subsequent should be noted dis- Brady’s developed accompan- cussion “MR. If CORRIGAN: the Court Sheppard iment of the at home please, my I desire motion renew judge’s prior been the trial for a case, continuance of knowledge and with the consent of the change venue, for the withdraw- defense, given which had been one juror of al and for a mistrial. attorneys.) defendant’s “(To you reporter): Would read yesterday? Monday I evening, what dictated 22, November “ following (Thereupon the objection was read trial record still shows another rulings jury is until such time as the seated. privileges, the trial to media news denying requested re- of the trial Well, “THE that is more COURT: cautioning of defendant’s lief, a request. one court will than The concerning publicity. brother position his make clear. re- I desire "MR. CORRIGAN: "First, photo- no has there been change my venue new motion for except graphing room in the court Ever of this case. and continuance upon strict orders the court case, have in started since we was to be done before court hours it surround- and the rooms the halls morning or after court hours in the ing or, surround- the Court evening and consent House— with the ing been filled court have room of counsel for the defendant. photographers reporters and given I have “MR. CORRIGAN: operators. and television no consent to that. assignment room and “The “THE let the record COURT: And occupied en- room have been witness defendant that counsel for the show tirely by newspaper reporters, radio defendant, himself, and the have operators. On each television voluntarily photographed in the been morning been has defendant court room from time to time dur- brought into at least 10 min- court ing progress of this trial. beginning trial, utes before I haven’t “MR. CORRIGAN: been period for that of time has then voluntarily photographed. Neither many subjected by photograph- been the defendant. have has We been against cameras, ers and television compelled photographed. We to be will, photographed. to be escape can’t it. morning today? “This —what no, I Oh, don’t “THE COURT: “THE COURT: The 22nd. so, Corrigan, and Mr. think that is “MR. CORRIGAN: November say you de- that the court will 22nd, there front was erected in photographed is not to be fendant cameras, the Court House television your at without court room all They WNBK. were there when consent. entering the Court House. Well, if there “MR. CORRIGAN: being judge participated tele- anybody any consent has been vised, as did Mr. Mahon Mc- and Mr. is with- matter, the consent Arthur. drawn. “We, therefore, the motions renew Now, right. All “THE COURT: with- made, ask for the heretofore brought being defendant juror continuance drawal of room he is to court into the brought of the case. prior room the court into course, Of day “THE COURT: opening each exceptions not- overruled and will be just That enters. before the begin- ed. our effort since has been ning of this trial. then, Now, we “MR. CORRIGAN: rights request the court that the say a “Now, the Court wants to protected in this the defendant be not was told—he has That he word. com- room, not court and that he be anything at all—but about read photographing pelled submit Shep- informed Dr. Steve he was as he has television camera and the granted priv- pard, has been who morning knowl- every with the been remaining ilege court room edge of the court. trying trial, has been making newspapers request or- Sheriff be “We bring uncomplimentary comments into court him rather dered 748 Fay testimony 2241; 28 v. of the witnesses U.S.C. about commands. § 822, Noia, 391, 9 L.Ed. 83 S.Ct. for the 372 U.S. State. (1963); Sain, 372 2d Townsend v. 837 it that if “Let be now understood 293, 745, 770 9 L.Ed.2d U.S. 83 S.Ct. Sheppard Dr. Steve wishes use the Wainwright, (1963); U.S. Gideon 372 v. newspapers try case while we (1963). 335, 792, 83 9 799 S.Ct. L.Ed.2d trying here, he will be barred remaining

from in the court room challenge beyond It is likewise during progress if he of process” requirement of the the “due to be a in is witness case. mandates Fourteenth Amendment10 appreciates he “The Court cannot of mini state criminal court observance right Sheppard deny of Steve mum standards federal constitutional deny speech, free right but he privilege him can charge “fairly made such trial on a being of fairly public tribunal” tried room, if court wants to avail him- he Oliver, impartial judge,” “an In re before prog- self of that method 257, 278, 499, 510, 92 333 U.S. 68 S.Ct. ress of the trial. (1948); Tumey of L.Ed. 682 v. State Ohio, 510, 437, “MR. state- 273 S.Ct. 71 L.Ed. CORRIGAN: The U.S. 47 (1927); Murchison, Shep- ment of the Court 749 In re 349 U.S. about Steve making (1955); pard uncomplimentary 133, 623, re- 75 99 942 S.Ct. L.Ed. testimony jury” (if, “impartial do, an about the of wit- as all marks paralleled by jury system), nesses is tremen- Irvin v. state elects publicity put Dowd, supra, 721-722, amount of dous that is 81 366 U.S. at 1639; espe- Louisiana, newspapers, in cially Cleveland S.Ct. Rideau of v. State * * * beginning headlines, supra; and a since “verdict based misrepresent- upon developed trial,” case, of this which has the evidence at the entirely testimony.” Louisiana, supra, ed Turner v. State of 472, at at 549. also U.S. S.Ct. See change venue, These motions for of con- Thompson City Louisville, 362 U.S. v. tinuance, and mistrial re- were renewed (1960); 199, 624, 80 S.Ct. 4 L.Ed.2d 654 peatedly (including thereafter the close Louisiana, Garner v. State of prosecution proofs close (1961). 82 S.Ct. 7 L.Ed.2d 207 proofs) similarly defense de- nied. January In of 1965 the United States Supreme Court said: DUE PROCESS VIOLATIONS jury’s requirement “The that a theory system “The our is that upon ‘must verdict be based the conclusions to be in a reached goes developed the trial’ evidence only by will evidence induced integrity of all fundamental argument court, open and not constitution- that is embraced by ar-y influence, outside whether concept by jury. al [See private print.” public talk or Jus jury is essential ‘The an footnote.] tice Oliver Wendell Holmes. instrumentality appendage —an —of is, course, legal court, body pass It his- too late in the upon guilt ordained tory power duty doubt the and the Exercise or innocence. judgment federal District Court to review calm and informed corpus proper habeas a state court conviction en- its members essential upon claimed to have been based viola- v. Unit- forcement of law.’ Sinclair applicable 749, 765, States, tions of federal 49 S.Ct. constitutional ed U.S. 10. The Fourteenth United States Constitution Patterson State Amendment Colorado, 51 L.Ed. 879 provides to the U.S. State applicable ^{[*] [*]} property deprive any person *_» part: without due “ * ** process nor shall life, liberty, law; argued by prosecu- 471, 476, Mr. sented inferences Justice 73 L.Ed. 938. sharp conflict. truism and defense were than a tion stated no more Holmes ‘Any judge have be- On could each issue he observed that when juries either knows that lieved side. has sat with who extremely spite they are in likely of forms issues, as on these same crucial But impregnated to be sup- progressed media trial the news environing atmosphere/ Frank v. plemented material the total record with Mangum, at Much of never heard in the courtroom. (dis- at 59 L.Ed. though highly prejudicial material, this senting opinion). defendant, admissible to was relevant and sense, found who trial if a could have been witness “In the constitutional necessarily testify prepared oath by jury to to it under in a was criminal very implies cross-examina- in the courtroom and face at least that though equally against material, developed’ a de- tion. Some prejudicial, ‘evidence obviously inadmissible from the witness fendant shall come was any public where in a court room under circumstances. stand protection judicial of the full there is Judge listed District The United States confrontation, right of defendant’s objectionable instances different cross-examination, counsel. and of which he news media communications ^[*] [Footnote] ^{[*] [*]} » “The Sixth Amendment felt only were five of these. prejudicial. We shall discuss provides: 19, 1954, Friday, a November On prosecutions, police the ac- Police De- ‘In all criminal officer the Cleveland during enjoy right gave testimony partment to a trial shall this cused trial, by portions speedy public an im- to contradict some which tended partial jury district as made of the State statements of defendant’s crime shall have been wherein the Cleveland Police. ** (Emphasis *.’ committed supplied.)” p. m., there at On November 6:30 heard which was radio broadcast was a Louisiana, supra, in which Turner v. State of WHK Cleveland over Station 472-473, comparison at 549. 379 U.S. at 85 S.Ct. Mr. Robert made Considine Alger De- Hiss. defendant and between likely jury If said to ever could be Shott- confrontation Officer fendant’s “impregnated the en- to have been Alger compared con- Hiss’ ke was surely vironing atmosphere,” this it was Chambers. with Whittaker frontation jury. I And how do see 1954, Alger con- Hiss’ At time in safely jury can conclude that verdict national con- fresh in the viction was only de- was based on “the ‘evidence * ** sciousness. against veloped’ a defendant from the witness stand.” of the na- was one Robert Considine occupying reserved commentators tional applicable this trial these However during trial. in the courtroom seats general- may be, they standards are also commencing 22, at the On November I affirm the District izations. would court, moved Judge’s counsel defendant’s writ in this case on the basis prej- trial, based process continuance specific oc- due violations which resulting broad- from the Considine udice curred and for all which judge question cast and asked the trial preventive there were measures be- both they jury heard as whether avail- forehand remedies afterward to, judge. broadcast. by, able but unused the trial saying motions, denied both principal upon At trial the issues part: testimony presented to the was 2) 3) know, stop 1) motive, credibility, reputa- “Well, can’t I don’t we listening pre- event, people it. tion. On each issue the evidence Village speech, Bay Mayor was J. It a matter of free and the made recently everybody. Spencer last court can’t control Houk as (See June, Ap- The Press learned.” “MR. I that the MAHON: think pendix J). court has instructed the testimony they it or listen ever intro- are not to read about No such was general to the broadcasts. It duced at the trial. given at instruction that Five had testified that

time the started. Press The Cleveland received going “THE COURT: We are not homes. their morning. jury every to harass the counsel re- On November 26 defense help it, change “MR. I can’t venue CORRIGAN: newed his motions for right you Judge. don’t, mistrial, basing all If that’s continuance my exception. story Jekyll-Hyde with me. I make in The them on the Press, which he introduced as Cleveland getting “THE It is COURT: J). (See Appendix an exhibit every point if where do it we morning, suspecting jury. we are Defense Counsel also based his motions jury, I Thanksgiving Day have in this confidence on a edition of The jury we must have confidence or the pictures Cleveland Press which contained system is of no value whatever to interviews the home of Mrs. anybody.” jurors (See Ap- Mancini—one of the pendix I). dealing motion, Prior to with this judge (as noted) just we have had judge, The trial reference to without denied a defense motion continuance Jekyll-Hyde matter, for overruled the upon program based a television con- motions, noting that Mrs. Mancini had steps on ducted of the courthouse not been home at the time the inter- morning, others, among the same taking. where picture view and He made no prosecutor judge inquiry had jurors as to matter. either appeared. judge’s picture The trial Winchell, 3. On December Walter appearance published in one was ain nationwide broadcast and seen heard day papers the Cleveland on the these through in Cleveland WXEL television (See Ap- motions heard and were denied radio, and WJW Carol stated that a C). pendix Beasley, who was under arrest in New robbery, York for On 24 The had stated that she November Cleveland eight- published page was Press defendant’s mistress and had a front had ‘Jekyll- child him. column headline: “Sam Called a Hyde’ by Marilyn, Testify.” Cousin to On December these facts were re- paragraphs The first three news judge responded: lated to the trial who story follow: Well, even, so, “THE COURT: days death, “Two before her mur- Corrigan, you Mr. how ever Marilyn Sheppard dered Reese told going prevent things, any those husband, friends that her accused justify I event? all. don’t them at Sheppard, Dr. H. ‘a Dr. Samuel was outrageous, I think it is but in a Jekyll Hyde.’ and Mr. sense, outrageous it if is even there prosecution “The has a ‘bombshell were no trial has trial here. The tap testify nothing witness’ on who will with in the Court’s do fiery display temper- outrage mind, Dr. Sam’s as far con- as its countering cerned, defense claim that the but— gentle physician defendant is a “MR. CORRIGAN: I know don’t disposition. an even ány what effect it had on the mind of Sheppard’s jurors, “One of ‘Dr. Mrs. I these and can’t find out

Jekyll Hyde’ inquiry and Mr. statements unless is made. jurors permitted re- you been individual had would How “THE COURT: peated phone This any their homes. ever, jury, calls to that kind avoid knowledge mo- made the for thing?” was basis coun- made defense tion for new trial insistence defense counsel’s At sel. jury judge query as whether did any broad- Winchell heard Walter agreed stipulation on of facts night. jurors previous Two cast parties Dis- before the United States they responded that had. Judge gives on is- the details trict asked, Thereupon “Would sue: judgment your ?” that have effect said, charge “No.” arguments Each “After complete, jury directed were judge accepted this inade The trial its verdict. reprove to retire to deliberate quate He did assurance.11 charge They placed of two failing to heed his two Edgar bailiffs, Francis and Simon “suggestion” not listen TV lasted The deliberations Steenstra. or the He did not order them or radio. days, than four again. more jury so He not to do rest of kept (ex- which time the pay attention what “to no told deliberating) cept scavenging.” when at court type He ever to that in downtown Cleve- proceeded the Carter Hotel the then with trial. They, together the bail- land. defendant 4. On December iffs, occupied floor the entire seventh the stand. took witness of the hotel. Bailiff Steenstra testimony During part of his direct arrangements whereby the made promises oral he testified to oral occupied telephones in the rooms Cleve- various members the abuse jurors that the were disconnected so Department Bu- Police Homicide land placed no be or received. calls could extensively him reau who interviewed after arrest. the indicate “The does not record News, the On December Cleveland calls, times, the or number the story printed page under the a front identity juror-callers, it is but “ Liar,’ says Kerr ‘Bare-Faced headline Fran- that both clear Steenstra story Captain quoted The Sam.” jurors place permitted outside to cis Kerr, Bu- head of Homicide David E. bailiffs’) (the rooms from their calls adding: reau, to effect the same jury took the the time the between “ 1954) (December 17, person was handled ‘If ever a (De- rendered the verdict was Sam,’ time gloves, it Dr. with kid was 1954). were The calls cember 800 homicide cases said Kerr. ‘In jurors. No records placed single raised not had a voice we have against called, kept numbers as to the methods, one until this our ” with, called, parties Village talked Bay (See from the doctor.’ K). calling jurors. sat next Appendix The bailiffs phone the conversations Captain appeared as a wit- Kerr never only that place, hear but could took the trial. ness at by the made conversation half of the of evidence 5. After the close jurors juror; to the what was said charge arguments had been and the by the bailiffs. heard not be could given, jury its de- was locked for per- was never asked The Court on These continued liberations verdict. jurors make mission to allow nights. days Subse- for five and four permission calls, was and no these rendering quent the verdict to the original) given.” (Emphasis ever became known to defense supra. States, Coppedge

11. Cf. v. United listening THE UNITED STATES DISTRICT to material about the trial was given testimony. JUDGE’S HOLDINGS until after a month Concerning four of events first himself and the allowed (and others) Judge jury through we have cited Wein- all the trial be the con- subject man said: newspaper photography. stant “[S]pedal given note queried must be to the When on the one occasion when attempt newspapers inquiry allowed, jurors to in- two testified jury. startling fluence hearing It was the Walter Winchell broadcast. photographs find of the entire They they reproved were not nor were jurors (at and of individual times or the other told not to do it giving addresses) their home in no again. less than 40 issues of the Cleveland newspaper The two stories were front newspapers. The Court need not be page general newspapers stories naive, and it does not stretch its “Jekyll- The Cleveland circulation. Press imagination recognize that one of Hyde” story topped by eight- an purposes photographing column, page double front banner head- jurors so often was assured line. photo- would look for their by nationally The two broadcasts were graphs newspapers there- prominent broadcasting commentators by expose prej- themselves to the prime time in Cleveland. reporting.” Sheppard udicial us, With these before I facts do see Maxwell, F.Supp. say Judge’s how we can District beyond doubt, “It is clear because holding “clearly erroneous.” publicity sheer volume of Judge’s opinion respect The District trial, attended the read prejudicial to these instances trial through and heard about the case publicity upon ample preced- is founded (Footnote omitted.)

news media.” ent. Sheppard Maxwell, supra v. 62. at Newspaper actually by articles read 52(a) Rule of The Federal Rules juror jurors convey highly or prej- which Civil “[fjindings part Procedure states in udicial not information admissible or of fact shall not set be aside * * long recog- admitted at trial have been clearly unless erroneous This constituting nized as such essential un- applicable rule is to review of federal justify setting fairness as to aside of corpus proceedings. habeas United granting the verdict and new ex Crump Sain, States rel. v. 295 F.2d States, supra; trial. Mattox v. (C.A. United 7, 1961), denied, 699 cert. Krogmann States, supra. v. United 82 (1962); S.Ct. 7 L.Ed.2d 794 Rushing Wilkinson, (C.A. v. flagrantly prejudicial 272 F.2d 633 Where news- 5, 1960). paper See also printed Cases Annotated prominently at n. articles in 57, 28 general newspapers during U.S.C.A. Rule 52. circulation jury seques- a trial wherein the is not In jurors, one, freely this trial all save tered, presumption there is a that some reading admitted about the case before jurors have seen them and that defendant trial. prejudiced thereby. has been Harrison jury This up never locked for the States, (C.A.6, v. United F. nine weeks of trial. 1912); States, supra; v. Marson United jurors At least seven of the took news- Krogmann supra; States, v. United papers at their homes. Five of them Briggs States, v. United 221 F.2d took The Cleveland Press. The news (C.A.6, 1955). given media extraordinary promi- were presumption prejudice Unless this privileges nence and in the courtroom. inquiry is overborne careful of unequivocal No jurors admonition and, of an cases, na- appropriate in concerning jury reading ture strong not or disregard, admonitions a mo- Judge’s require granted. the District as to tion for new trial should States, supra; Mar writ. Krogmann v. United Briggs States, supra; v. juror son v. United issue, pertaining to fifth On the States, supra; v. States deliberations, United United during jury phone calls found; Accardo, supra. Judge Weinman prejudicial error seen, in finds we the admonitions Court As have “This right im- infrequent equivocal a fair were because trial guaranteed inquiry the due given. partial And as when minimal trial single Fourteenth process clause of limited to the instance right includes broadcast. Winchell Amendment permitted, not jury is which have a concurring Dowd, Mr. in Irvin v. In deliberations, begins its after it said: Justice Frankfurter telephone conver- have unmonitored persons. As passes with third sations “Not Term without simply quite being importuned Mattox to review stated through- States, convictions, U.S. United States (1892): 50, 53, country, 36 L.Ed. substantial which out the “ has are made claims communications, pos- ‘Private of inflamma- distorted because been jurors and sibly prejudicial, between often, tory newspaper accounts—too witnesses, or persons, or third prosecutor’s case, in this with the absolutely for- charge, are officer exerting pressures verdict, collaboration— at bidden, invalidate potential upon before is harmlessness their until least trial, of difficult, the course and even [Emphasis add- appear.’ made to extremely making thereby ed]. impossible, to secure a if not capable nothing in the record “There taking in, prepos- free of part of that harmlessness show the open sessions, evidence submitted telephone conversations * * * For reason one court. Accord- hear. could bailiffs the ingly, not under- another this Court does constitutional petitioner’s all envenomed such take review Sheppard v. rights violated.” again But, prosecutions. state F.Supp, Maxwell, supra, 231 disregard again, fundamen- such Judge has sound Here, too, the District flagrant so tal fairness is support. precedent in only a compelled, Court is as it ago, (including reverse a week to conviction the Unit The federal courts Court) prejudicial newspaper intru- which Supreme and ed States poisoned pre outcome. given sion has effect to and have created 716, States, 366 any v. United U.S. com Janko sumption unauthorized see, 846; 1662, prejudicial 6 juror 81 S.Ct. L.Ed.2d munication with a States, g., 360 e. v. United Unit Marshall v. Mattox rebuttal. absent effective 310, 1171, States, L.Ed.2d 3 supra; 79 S.Ct. States, U.S. v. United Stone ed supra; supra; States, of State 1250. also Stroble v. See v. United Little California, 181, 198, States, 72 supra; 343 U.S. John v. United Wheaton (dis- 599, (C.A. 607, States, 96 872 S.Ct. senting L.Ed. 207 F.2d 314 son v. United 938, opinion); Shepherd denied, v. State 5, 1953), 74 347 cert. U.S. 50, Florida, (1953); Ryan 71 341 S.Ct. 632, U.S. 1087 98 L.Ed. S.Ct. (concurring opin- 328, States, U.S.App.D.C. 95 L.Ed. 740 89 v. United ion).” Dowd, supra, denied, 366 Dun (1951), Irvin v. cert. 191 F.2d 779 (con- States, at U.S. 81 S.Ct. at v. can United curring opinion.) 96 L.Ed. S.Ct. stronger “disregard when presumption my is even fun- The opinion the In or flagrant” with a member in this is communication is so there damental fairness jury charge clearly of the after and members established that claimed viola- concerning during jury deliberation tions of defendant’s Fifth Amendment supra; States, rights verdict. Mattox United (through testimony) lie detector States, supra; Little presented Wheaton v. United Supreme have been to the Ohio States, supra. v. United Court. Nor have the belated witness judge’s statements toas the trial com- Fuller, speaking In Chief Justice Court, guilt ments on defendant’s ever been con- for a unanimous said: body. sidered capital “It is vital in cases that agree my I also brothers that the jury pass upon should the case free frequently pub- clamorous abusive tending dis- from external causes licity prior trial, plus judge’s turb the exercise of deliberate change venue, probably denial of did judgment. Nor can unbiased ground not, themselves, rise the level of suspicion that the admin- constitutional violations. justice has inter- istration been Hence, Judge notes, fered with be tolerated. As O’Sullivan number separation in such a jurors opinions with fixed about this way expose tampering as to them to as of the time the was seated may trial, be reason for newa vari- deep does not show same extent absolute; ously prima as or abiding community held prejudice demon- facie, subject to rebuttal Dowd, supra, strated Irvin v. contingent prosecution; proof or on Louisiana, supra. Rideau v. State indicating really tampering that a weight Of some in the consideration of place. took Whart.Crim.Pl. §§ pretrial publicity issue is a concern 823, 824, and cited. cases particular rights for that declaration communications, possibly “Private put our which forefathers chose first prejudicial, among between and third amendments. If exercise persons, witnesses, or report- or speech press the officer of freedom of or forbidden, charge, absolutely ing exposing or crime could serve to im- verdict, person charged and invalidate the at least munize a with crime from prosecution trial, shortly unless their harmlessness is made the de- appear.” States, Mattox v. United mands limitation of this historic supra, right extremely pressing. at U.S. would become The smarter criminal would know how find means to immunize himself from absolutely way by There is no securing publication of a well- phone we can know that these calls — story. power if timed adverse totally unmonitored far as out press maintaining aid the in- party side is concerned—were harmless. tegrity government by exposing cor- I believe that cor Weinman was ruption special privilege would be relying ground rect in also. largely nullified. THE THE OPINION OF COURT relatively In one of the few cases where stated, myself For the reasons I find Supreme the United States Court has set disagreement in ing with the concern- Court aside State Court convictions because of appeal. the fundamental of this issues pretrial publicity, Mr. Justice Clark My however, have, brothers written noted: scholarly opinion. careful and I concur however, required, “It is not that with the result reached in three out of the jurors totally ignorant the of be five of the issues therein. discussed facts and issues In involved. these course, courts, days The not swift, widespread federal of do of and di- review claimed vio- communication, federal constitutional of verse methods an important lations been expected until state remedies have can case be Thorough peti- public exhausted. have been as arouse the interest of regard, vicinity, scarcely any tioner’s efforts in this it cannot

755 jurors If we the five in were to assume qualified as that to serve those best impres- of unauthorized communications stances some will not have formed entirely jury, iso this considered as opinion merits of or as to the sion incidents, constitu particularly lated did not rise to true This is the case. magnitude,12 tional we still could not hold that in criminal cases. To ignore any preconceived our such dissection this trial mere existence duty guilt constitutional to look at the trial or innocence notion as to more, accused, from suffi- as whole and to determine of an without presumption of a total record whether the Fourteenth rebut the cient to juror’s impartiality process prospective command due had Amendment impossible been an violated. would be to establish juror if It is sufficient standard. These events which occurred dur- five lay opin- impression can aside ing trial, cumula- when considered based on the ion and render a verdict background tively against the trial presented Spies v. evidence court. outset, related no at the leave doubt of Illinois, People of State validity Judge’s of the hold- District 80; 131, 22, 8 31 Holt v. L.Ed. S.Ct. ing “petitioner not afforded a was 245, States, 218 31 United U.S. S.Ct. required by process fair trial due as 2, 1021; Reynolds 54 v. Unit- L.Ed. clause of the Fourteenth Amendment.” 145, States, supra. ed U.S. [98 deny Any common view would other Dowd, supra, Irvin v. L.Ed. 244].” effectively saying as that since sense as 722-723, 1642. at 81 S.Ct. at U.S. single neces- the 35 one of wounds no problems of this To return to the basic Marilyn Sheppard sarily fatal, appeal, is clear the District murdered. of due considered the claimed violations judicial Patently error can be there background against process against background of case one cumulatively in relation itself and against harmless, might but which opinion each His notes: other. might another total circumstances “Any one of the above mentioned rights. United States violate substantial factors, e., insidious, prej- i. Wolff, 176. 343 F.2d v. McMaster newspaper reporting, re- udicial (C.A. 6, 1965) 1965. March Decided question judge fusal of the States, U.S. v. United Cf. Krulewitch regarding alleged prej- an (1949); 93 L.Ed. 790 69 S.Ct. udicial car- radio broadcast States, 328 U.S. United Kotteakos v. atmosphere nival which continued 1239, 90 L.Ed. throughout trial, would be suffi- background a case wherein facts compel cient to the conclusion that process are claimed due violations are petitioner’s rights constitutional Dowd, supra; Irvin never irrelevant. v. were violated. But when supra. Louisiana, Rideau v. State cannot, cumulated, unless this Court imagination to it were to stretch its States, 360 U.S. In United Marshall v. point say petitioner fantasy, (1959), 3 L.Ed.2d 79 S.Ct. pub- had a fair trial view Supreme dealt the United States licity during Sheppard trial.” prejudice in- because a claim Maxwell, supra, F.Supp. accounts from news material admissible Against trial. Not- view, I read had reached the the Court’s holding ing large opinion the trial no one of the discretion prej- ruling complaints issue of on the communica- contacts or for udice, reversed nonetheless stand- tions with this was sufficient stating must ing peti- “each case represent alone to invasion of new trial rights. special process on its facts.” tioner’s due turn assump- accept such an 12. As to the of little reason instances communications 2, 3, herein, tion. numbered and 5 there “special compel “Shortly The facts” this case telephone before 6:00 a. m. a my They vote for affirmance. petitioner come as a call was received from J. Spencer Houk, mayor distinct shock to the conscience of this Bay Village and judge. former state court petitioner. a friend of Houk lived two peti- houses distant from the home of noted, As we have Weinman’s say: petitioner tioner. Houk heard duty petitioner’s to review federal con- “ concerning stitutional claims his state ‘My get God, Spence, over here Fay disputed. court trial cannot be v. quick, I think have killed Noia, supra; Sain, supra; Townsend v. Marilyn.’ Wainwright, supra. Gideon v. wife, Esther, Houk dressed and with his I read such cases as Turner State within a hun- drove short time the few Louisiana, supra; Rideau v. State petitioner’s Upon dred feet home. supra; Louisiana, Dowd, supra, Irvin v. petitioner arrival the found on the Houks applicable as a to the fact situa- fortiori floor first of the house. His face showed authority tion heretofore outlined and as injury, complained pain some and he writ, issuance a new unless up in his neck. Houk went Esther trial is ordered. bedroom, suggestion petitioner, at the Marilyn I would affirm. to check on the condition of Sheppard. Marilyn lying a She found APPENDIX A pool of blood on the bed. She was dead. PRETRIAL ORDER splattered The room was covered AGREED OF STATEMENT FACTS blood. It was determined that she had thirty-five suffered some “Petitioner, blows about the Sheppard, Samuel H. was instrument, causing head some blunt July, 1954, Bay Village, in Ohio, a resident of death. There was some conflict as to a suburb on the west side of Cleve- long how been dead dis- she had when osteopathic land. He was a doctor of by the covered Houks. medicine, specializing Surgery, and a Bay member of the staff of the View story given by petitioner police “The Hospital. years age thirty He was trial, substantially at fol- was as Marilyn Shep- and was married to Reese couch, sleeping lows: As he on was pard, thirty. They also been mar- coming he was from awakened noise years son, aged rid for nine and had one thought the second floor. He he heard family seven. Petitioner and his lived stairs, up his name called. He went Erie, a house on the shore of Lake dimly by light which was lit in the hall. by Marilyn. which house was owned Pe- recognized only He ing white ‘form’ stand- practice titioner was associated in slept. next to the bed where his wife medicine with his father two older form, grappled He with the and was brothers, all doctors. He was com- struck on the back of the neck which fortable financial circumstances. rendered him unconscious. Before los- night July 3, peti- ing “On the petitioner consciousness heard loud friends, moans, tioner and injured. his wife entertained if from someone Nancy Ahearn, petitiner consciousness, Don home. in their When recovered approximately thought wife, Ahearns left 12:30 at he examined or found m., July 1954; Marilyn a. them dead, saw that she that his was determined door, petitioner ap- (in room) adjacent son an had not been peared asleep hearing harmed, on then, a couch noise of some living evening floor, room. The had been sort the first ran down. He saw congenial one, running observed and the Ahearns a form out the door house hostility peti- Erie, pursued no indications between nearest to Lake (who pregnant) struggled again, tioner and his wife the shore. There he again evening. fact, time In lost consciousness. When he came to, house, there affec- overt manifestations he back to the re-examin- went wife, Mayor tion between them. ed his and called Houk. (1) purpose the of this his- the that it was to establish not Petitioner was unable tory the evidence. people to describe the voluminous of in bedroom at number the time first or time of the encounter 1955, January 3, court “On (2) encounter; of said the duration of a for new trial which overruled motion occasion, or on unconsciousness either assignments numerous had been based on (3) identity sex of of or occurring de- of trial and error * * * single encoun- or assailants he several liberation. perceptions had tered. He stated that his 9, 1955, May denied court the trial “On vague asleep he at been because was supplemental new trial on a motion for events, of un- of the chain and outset ground newly and evidence of discovered progressed. it conscious twice as upon Paul Leland the affidavit of based interrogations “In the of course Kirk, criminologist, who claimed County Coroner, petitioner police and made blood tests demonstrated that have he sexual relations was asked if had had proved in murder room the existence Hayes, ex-employee of one Susan an the de- come from of blood which did not March, 1954, hospital, in in Los This evidence fendant or the deceased. Angeles. this, but Petitioner denied the verdict was not obtained until after later it confronted with admitted when had been returned. The state her statement the affair. July 20, 1955,1 Ap the Court “On Hayes mo- contended that Miss was the Cuyahoga County peals affirmed the murder, premeditated tive for a but the July 25, petitioner; and on conviction in the returned a verdict of murder affirmed the denial same Court degree. second * * for new trial. the second motion Marilyn Sheppard murder of “The (cid:127) Supreme 1956, May 31, the Ohio “On media captivated of news attention the Court affirmed the action unprecedented manner. Editorials an chief, did Appeals but to the case leading page Cleveland first on the newspaper, alleged upon pass discuss not generally, set news media and Judges newly Two evidence. discovered cry up for a solution a hue and Shep expressing dissented, view that * * inquest demanded An was crime. a new trial. pard should accorded suggest- held, petitioner’s arrest was Supreme November “On leading strongly by one at least ed most peti- denied United States Court of the July 1954, petitioner newspaper. On certiorari; application re- tion bail, arrested; admitted he was was hearing on December was denied August days later, on indicted a few * ** 1956. custody ever 1954. He has been 5, September Justice Chief “On since. application for a Weygandt denied an 18, 1954, began on October “The trial corpus in the Ohio Su- of habeas writ preme year the same on December 17 Court; petition was therefor jury in the to a was cause submitted 5,May dismissed Cuyahoga Pleas of Court County. Common 1963, petitioner 11th, filed a April verdict 21st the On December “On degree corpus guilty petition second of habeas of murder for writ giving returned, petitioner Court, sen- action which is the imprisonment state tenced penitentiary life rise to this order. * * * Columbus, Ohio. “Petitioner, Sheppard, has H. Samuel trial, not that he was fill over times maintained “The details at all wife, pages guilty ex- of his in the bill of of the murder thousand seven than here; said death ceptions, more about is the he knew no recited understanding he of counsel for both sides told at trial.” point, are incor the dates of decisions

1. “It a minor but the that several of Court notes rectly stated.”

Case Details

Case Name: Samuel H. Sheppard v. E. L. Maxwell, Warden

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Jul 14, 1965

Citation: 346 F.2d 707

Docket Number: 16077_1

Court Abbreviation: 6th Cir.