*1 proceedings herein further consonant views expressed. and Mr. Kelley Pringle, Justice Justice Mr. Mr. Lee concur.
Justice 22774. No. People State Joe Sam Walker v. The Colorado. (458 238) P.2d September August 25, Rehearing 1969. Decided 1969. denied *2 in R. plaintiff L. Francis Robert Salazar, Pitler, error.
Duke W. John P. Attorney General, Dunbar, Moore, for defendant in error. Deputy, En Banc. Day delivered the Court. opinion
Mr. Justice to of a writ error is the trial court’s denial This Crim. P. motion under Colo. R. set aside 35(b) He was conviction Joe Sam Walker. defendant, murder in and was degree found second 1949 guilty a of 80 His conviction years sentenced to term life. Colo. this court in Walker v. 126 People, by was upheld 135, 248 P.2d as first 287. We will refer to that decision Walker.
On June 10, 1965,Walker filed a motion now subject alleged, among matter this review. He number of been contentions his that he had motion, impartial denied fair of massive trial reason publicity concerning and hostile him and his case. ground summarily
trial court denied the motion on the petition legally that the on its face not sufficient any given entitle Walker an relief. Walker was opportunity present anything time of an evi- dentiary support (b) allegations nature of his rights Walker constitutional had been violated. When challenging came to this Boulder court at that the motion, time summary district attorney general court’s dismissal although most
advised the court that con- matters asserted been either *3 rejected by or sidered and in first this court Walker, summarily disposed be could of on the basis allegation concerning record, the inflam- the massive and matory pre-trial publicity whether such as and it was right trial, to violate fair Walker’s constitutional to a evidentiary only hearing. could be resolved after a full thereupon in refer to Walker We what we will as second (Walker People, 14) 286, v. 160 Colo. 417 P.2d reversed trial the court and the cause directions remanded allegations ruling that Walker’s be under the considered Sheppard Maxwell, v. 1507, 384 U.S. 86 S.Ct. L.Ed 2d 600. evidentiary hearing held, the remand was findings
trial court entered of fact and conclusions again law but denied Walker’s motion to set aside the verdict and Walker, sentence. So in this the third now, ruling being challenged. the latest of the trial court is — argument point only main which is the one misapplied we that will consider is that the trial court Sheppard guidelines the rule in to follow failed the applied set out the court therein. law has Instead, determined erroneously in been overruled of news- standards day it could apply “present hold that in 1949.” We happenings conduct the paper set out. hereinafter court erred reasons the in first forth the set The facts of the case are fully A brief quotation repeated Walker and need not be here. an gives first from the dissenting opinion commands which now of the problem accurate picture of this court: the attention “* * fact that an atrocious cannot disregard We was committed; crime the seat of trial citizens; and that when the same irate community direction, in defendant’s finger suspicion pointed him, all finally against and when the laid charge press, embroidered fully accounts thereof were be the maximum of information should before in criminal cases. minimum of comment trial thread of it is for the easy gossamer With this setting, guilt into the fabric of woven prejudice invisibly ** * In of an unfair and trial. through partial means of Robert the following such an atmosphere, expression mind, is is fitting, ‘Prejudice spider Ingersoll it is womb of injustice’.”
I. into A brief review of the necessary bring law court why misapplied focus we hold that the trial our to view the facts law and failed follow directions before Traditionally, with the case in mind. had been defendants Sheppard, required prove and the alleged direct connection between the *4 Beck fair v. U.S. Washington, denial of the trial. See 369 Dowd, U.S. 98; Irvin 366 955, 82 8 L. Ed. 2d v. 541, S. Ct. 717, 1639, This, 81 6 L. Ed. 2d we are persuaded, S. Ct. 751. trial con- was the the court the by leading test used comments: clusionary “* * in it While is that recognized pre-trial publicity case material the Walker was extensive contained trial, not admitted that based especially upon
471
reports
press-employed
still
scientists,
and activities
compare
is
1949
it
difficult to
1948 and
standards
day.
present
Sheppard
denied
those of the
with
change
impos-
request
not
venue; Walker did
it. It is
exactly
how
in what manner the
sible
determine
pre-trial publicity
caused
connected with the Walker trial
prejudiced
added.)
(Emphasis
his trial to be
.”
unfair
Sheppard
culminating in
hold
The line of cases
per
publicity
question
“massive,
that the
in
so
can be
prejudicial”
trial
vasive and
that
of a fair
denial
may
presumed.
Estes
Texas,
v.
S. Ct.
532,
U.S.
723,
Louisiana,
14 Ed. 2d
Rideau v.
1628,
543;
L.
373 U.S.
83 S. Ct.
The that also erred showing actually jurors must be made that the were directly by publicity. court’s affected Also the finding prospective that no “There is evidence jurors publicized were or contacted before the trial” not a material element in the of a case determination presented finding such as If it were, herein. court’s contrary jurors of “no evidence” is to the record. considerably by publicity pre-trial were affected will be discussed later. court,
With conclusions of law the trial predicated recog principles longer which were no Sheppard findings nized in and based on which were Sheppard, question the true test dictated arises whether we should remand the to the court case trial Sheppard, following for a re-evaluation of the record or, whether this court must find as a matter law sufficiently prejudicial within come purview Sheppard. a matter of We hold as law community permeated prejudice so deny comparison toas a fair trial to Walker. A of the publicity aspects of the case case and of the helpful explain at bar will be this conclusion. syllabus Supreme de- Court *5 sub- and arrest to Sheppard’s prior the
scribes follows: as his trial and prior to his arrest sequent “* * * and virulent period the entire pretrial During murder and the about petitioner incriminating publicity media frequently news notorious, and the the case made for which those besides countercharges aired charges he trial months before Three tried. petitioner counsel hours without five examined for more than audi- before an conducted a three-day inquest televised Over in a gymnasium. spectators ence of several hundred published trial newspapers three weeks before them causing jurors of prospective names addresses case. about calls to receive letters and telephone following publicity: The court further noted the evi- newspapers emphasized this period “Throughout and pointed tended to incriminate Sheppard dence in his to authorities. At the statements out discrepancies statements time, many same made Sheppard public his inno- feature articles asserting and wrote press a in large headline July 26, cence. During inquest of the Cleveland stated: ‘Kerr [Captain Police] type Detective Mc- In the story, Arrest.’ Urges Sheppard’s Sheppard at Arthur ‘disclosed that scientific tests the killer washed home have established definitely from murder bedroom to a of blood off trail doubt on section,’ casting a circumstance downstairs murder. No such evidence account Sheppard’s also into The delved newspapers at trial. was produced stressed his extra- Articles life. Sheppard’s personal motive for the crime. love affairs for a marital Lothario, fully Sheppard newspapers portrayed named Hayes, with Susan his relationship explored involved allegedly who were a number of other women him. never showed trial testimony one besides the relationships illicit had any with Susan Hayes.”
Editorially, urged inquest it was that an be played upon newspapers later that arrested; Sheppard’s refusal to he take lie detector test and that *6 significant would not “take truth serum.” Other details Supreme of the case are well Court detailed opinion given amplification. it and need not be Suffice say analogous surprisingly on a to what record presented has been in the case at the United bar, States Supreme totality that “the of the circum- Court held “inherently impossible stances” made it for to receive a fair trial.”
Although publicity Sheppard during the weeks damaging of trial was more than what has been shown aspects in this in certain other media record, news Shep- beyond with relation the Walker case went far pard, surprising publicity and in number areas the Sheppard. was almost identical to that in II. publicity prejudicial In addition to the which prologue directed Walker, at was a there great public upon which focused attention the case and preliminary in a bound sense to affect the members community jury from which was to be selected. immediately What are follows some the instances prefatory publicity this as a must considered part of the whole. by every psychological were,
Citizens mass conceivable suggestion, urged bring media of about the immediate apprehension by of the killer. Fears de- were aroused scribing dog large,” the unknown assailant as a “mad inflammatory “pervert,” many “a fiend,” other descriptions. heading Under the this” “Got a Clue? Read the Denver Post said that clues should be over turned to certain law officers, added, enforcement but further “If local law enforcement officers cannot be reached bring possible clues to the Denver Post.” Rocky News, Mountain in one contained edition, carrying following Vigi- articles headlines: “C.U. Form Clues,” Students Murder “CU Hunt Missing lantes 3Of Killer,” “Crack Sleuths Posse To Track Co-Ed “University Slaying,” To Co-Ed Team Solve Counties Is Aroused.” edition appeared Mountain News
In the same Rocky Catherine Theresa Last Hour Of the headlines: “The illustrated fictional, although Foster” which was, from the of eyes two pairs two blown up pictures one Under the eyebrow. nose a little past bridge Theresa Innocent Of Eyes the line: “The picture was How Is other: “And Here Catherine Foster.” Under the Have Killer May Of The Frenzy-Filled Eyes this latter photo Who was used Looked.” revealed. throughout
The Hail Mary interspersed prayer the article such statements as: *7 sinners now of for us “Holy Mother God Mary pray at the hour of our death.” her
“The silently upon timeless moved perhaps words . . lips . lie within the hidden and brutal desires
“(What dark of thoughts per- of some human What beings? places human the hearts some verted pleasures gnaw lie within terrible godless passions creatures? What street?) of some pass perhaps upon the bosom we body battered the bruised and “He looked down upon >> ** under Post, by-line Three later the Denver days Gardner, writer, Stanley Erie lawyer-fiction the famed from we the following: an article quote printed a man who commits now be may dealing “We victim, murder, who tortures deliberately torture so torture violence, enjoys revels in sadistic who who to dis- one method of murder only much that he starts resorts to effective, it it has been continue before other means violence. amateur with some emotional may dealing
“Or we yielded may hysteria, to a been who veritable who have sobbing strangled, even he choked and struck and bludgeoned. smugly hoping
“Somewhere our midst this murderer is public apathy immunity soon will insure his from prosecution.” public apathy
That there was far from is illustrated following Quiz headlines: “500 Students Face Slayer Murder,” C.U. “Denver Is For Of Co- Searched Slayer Suspect Ed,” “Co-Ed To Trade Hunted; Is Tries “Spurred by Auto In One a $12,000 Denver.” article said: leading reward for information the conviction persons deluge killer, countless continued officers with tips today Another “Blood article headlined: Experts Swamped By Clues,” Of followed Flood CU reported rag, every] [It was “bloodstained rock, piece glass or within a has assumed 50-mile radius portent eyes professional a sinister of amateur and ** * present sleuths.” “Dr. McConnell said that case multiple has been one, ‘hectic’ blood- because stained ‘clues’.” “Washing Suspicious
There were other Auto stories: following: Act In Now,” Boulder and from the article the person “The moment a starts wash his car or clean neighbors police. trunk, out the it seems, his will inform ‘tips’ only Officers have out checked dozens these persons. startle innocent motorists, Most therefore, will washing cleaning job avoid the until killer’s auto is found.” *8 day another
Still on article another read: “CU student had officers check his car so can he wash the blood out explanation of it.” It was followed an that the blood boy’s dog figured had come from the and that he he might suspect look like a so he wanted sheriff’s office to check first. Daily protest, Boulder, Camera in a mild de- hysteria prior
picted to effect massive of this apprehension of Walker: actual newspapers making attraction sideshow “Denver are tragedy. Printing half-truths, of a theories Boulder may playing up sensational, these be obscure facts that curiosity, which newspapers appealing to morbid are probably newspapers, victim, fair sells is not but university family, Boulder, to her to the justice. HAK.” prejudicial foregoing publicity highly to who- was charged might offense. subsequently ever be with the up before pressure built even Illustrative hearing testimony Walker’s arrest at the remand was night such that large arrest there were on the Walker’s necessary people in the that it crowds of halls was way; through cell the back sneak Walker to his block crimi- two famed threatened; that violence that mob later) nologists (who particularly will more discussed they protected him the mob. that from told Walker reported, it “The The Denver Post consensus an unbiased be difficult for the defense would find jury County, feeling run since in Boulder so intense has raped body bludgeoned found the coed was 11.” Nov. stages, usually during preliminary
Even routine headed an article interest, are short and command little * * “* Arraigned reported “Walker For Murder” teen-agers, packed Joe women and courtroom charges arraigned Tues- on murder Walker, Sam * * day “Joe Walker Given an article entitled Stay Lawyer” reported Joe Sam to Get it was * ** “appeared in a courtroom crowded “* ** many spec- every filled and that seat was peered Another tators stood outside and in at door.” arraign- regarding postponement of article defendant’s nearly persons, “A ment read: courtroom audience tensely slim most leaned forward as the women, of them ** prisoner tread into court walked with measured *9 arraignment reported At a third continuance on it was that the courtroom was When a contin- fourth crowded. granted reported, packed uance it was “A courtroom overflowing of to legal was treated to one the most vociferous — verging battles on the in Boul- times comic County history.” der “* * * jammed spectators excerpts Other are: preview in a a courtroom courtroom, of come.” “The saw the trial to * * * every with seat filled lined Crowds deep, making corridor six for and seven court it difficult attorneys push through officials and to the courtroom.” published (picture) of News a “dramatic shot” a crowded courtroom and also that defense mentioned attorneys copy had obtained “a of Walker’s confession * *” * * “* that Hatfield Chilson had said turned statements Walker made to his who wife, guilt” (Emphasis police, them over to had sustained added.) page photograph 24 of On edition, same published group spectators “a intense dog (who) packed doorway leading district to the * * courtroom further stated: ** * jammed spectators “Hundreds of the courtroom many spectators noon declared, “When recess skipped they lunch so for the would not lose their seats hearing. Many afternoon within stood corridor sight proceedings.” earshot but out 'Daily appear- reported “Walker’s sixth Camera ance” and stated: “* * * again capacity courtroom was filled spectators. hallways more than 200 Bailiff Leo after Others filled Flynn closed the courtroom doors.” February reporting The News on 9, that the court had set bond stated: Walker, * * * spectators “The action left the overflow crowd stunned
When Joe 'Sam Walker was Post bond, released on February reported: on 15, 1949, large depart
“A crowd was hand to watch Walker crowd- even
from the Boulder Courthouse. Some County being final were arrangements ed clerk’s office as made.”
On 1949, reported regarding the News February Joe he his wife Walker’s on bond that Sam release *“* * on out of the crowd gathered ducked * * the street stages
All of the the preliminary foregoing during note and before to significant Walker was It is tried. in the dis- newspapers, the spite protestations trict in a to whether judge found determine hearing think the Walker should be without bail that “I kept there is evident and the proof presumption great but is not evident committed, was a murder the proof and the it was such a murder great that presumption as could a death sentence. This defen- punishable by is entitled the of the Bail dant law. protection granted the out on he was During time Walker was bond went, followed he everywhere men newspaper “* * and there were stories observed reporter such into them: 1. Go a downtown a conference building drugstore Walker’s 2. Walk to a attorneys. nearby in several detective and make company private more calls calls. 3. Eat dinner. Make telephone 4. phone from the to a store drugstore. Go liquor spend 5. whisky. minutes in a notebook brand names of copying first today dining Walker’s breakfast the hotel second at a cafe with the detective.” room,
III. We directly now consider massive aimed designed prove through press guilt.
The Denver Post much than the Cleve- went further into land itself by actually investiga- paper injecting after of Theresa tory Shortly discovery process. Gardner, Foster’s the Post Erie body Stanley retained Mason, the creator fictional to assist Perry resolving on it was From then authorities in the crime. Shanghied Coed.” Gardner’s “The of the labeled, Case purpose, as follows: article, in a as revealed Post “* * * try present Denver of the I am to to readers eyes might appear to the as it Post Perry situation lawyer has detective who Mason, the fictional employed many my are not solved so cases We books. any give assis- to solve the case but to the authorities power.” our tance within Snyder, LeMoyne the Post retained Dr. addition, criminology, “widely of a textbook” on
author used polygraph.” These Keeler, Leonard “Perfector internationally Post as “two men were referred Snyder criminology.” Gardner, famous authorities investigatory process so and Keeler were involved shortly report arrival: after his was able Gardner placed Attorney us and * * Chilson had lunch with “District *11 disposal everything As a our in his office at Snyder shortly example, arrest, after Walker’s further by permitted authorities the Boulder Keeler were and privately. question him highly publicized papers the Cleveland In Sheppard refused to take a lie detector fact that Dr. the injected instant “truth serum.” In the or to be test undergo were lie detector did tests case Walker by Walk- Keeler’s conclusion that administered Keeler. highly publicized innocence was false was claim of er’s although tests were known at results of such trial and into evidence at the to be inadmissible time attempt such introduce ever be made to that no would preju- specially the trial. results through newspapers Keeler, because dicial image up publicly an infalli- otherwise, built had bility of the lie detector. reported in one article:
It was ques- Chicago fourth said the Keeler Leonarde “Dr. today you rape put man was ‘Did tion he to the point replied. girl?’ on the At this Foster ‘No’ Walker subject’s paper pens reactions, on which three record the change.” Dr. Keeler showed marked by From accounts of the third lie detector test Keeler following: is the nearly Tuesday night, lasting
“In a session three hours original any implication Walker cast aside his denial he in the case and an account in which he said dictated by companion was knocked unconscious Miss Foster’s picked Broadway up after he had versity Uni- the two at * ** relating night Avenue After Nov. 9. — details sullen some to officers some not known prisoner agreed undergo his lie detector third morning. this examination For four hours he answered questions put by Chicago Leonarde Keeler Dr. Mich, LeMoyne Snyder, Lansing, criminologist. and Dr. expressed opinion “Dr. Keeler Walker’s answers by pens graph three on the of the lie detector: reflected story picked up “His is untrue the time he from fellow girl away and a until the time when he started to drive * * *” body. (Emphasis added.) with the Although by the statement of Walker was described attorney “self-serving the district aas declaration” which he said at one time he would not introduce into-evidence (it trial) was introduced into evidence at the and with being expert the statement discredited Keeler, newspapers gave impression pub- nevertheless misleading lic that a confession such had been obtained Body headlines as: “Walker Confesses; Co-Ed,” I Of Hid Angles by pub- Confession,” “Inconsistent Seen lishing attorney enough stories that the district including parts direct evidence, of his own statement, to gas demand that Walker be sent to the *12 The chamber. “* * * attorney district said that statements Walker had police, made to his who wife, turned them over to the guilt.” had sustained his guilt by
Intimations were raised stories that several attorneys represent suspect quoted refused to attorney suspect say- Boulder who first talked as story going ing tell a was that was Walker saying” “vastly that been different from what he had bizarre situation.” “It’s a Sheppard striking are other similarities.
There emphasized newspapers Supreme noted that “the Court pointed Sheppard and tended to incriminate evidence that The discrepancies to authorities.” out in his statements on the defendant. a similar attack Denver Post launched story statements “bizarre”; to a Walker’s was referred attorney the effect attributed to the district were ends, except investigation complete loose for the was “including parts against Walker and that the evidence for the signed was sufficient of his statement” own penalty. It is to prosecution to demand death exculpatory; he was here that statement noted protested Walker’s throughout; the court his innocence penalty required of the death to rule out the consideration guilt. no evidence there was direct because an un- claimed in his statement Walker When Denver party murder, committed known third investi- published that the a detective a statement Post person gating no such officers are “convinced there Walk- accounts that Much made in news involved.” several trial and that not attend the er’s mother would Rocky represent attorneys Walker. had refused story reported published Mountain News completely arrest, untrue. had resisted which was comparison analogies appeared of the other Still the Cleve- bar. and the case at Whereas case reported newspapers the reenactment in detail land Daily tragedy the Boulder home, in his reported back had been taken that Walker Camera they visited “trembled crime and had the scene ** girl eighteen-year old place where strangled.” bludgeoned and Sheppard that the news- Supreme noted Court personal Sheppard’s life”
papers into had “delved *13 as a motive had “stressed his extra-marital love affairs” for the crime. In the instant case Colorado news- of Walker’s emphasized possible illegality papers and testify that his wife could marriage against probably It to bare his criminal record, him. purported past he two young girls disclosed that had molested allegedly This latter “evidence” was not admitted at Oregon. in another said to be sus- story trial. a sensa- pected (This “Black Dahlia case.” tional Los Angeles murder.)
Other indications of the impact account of a statement Mrs. Walker’s em- following ployer: “ ‘Some think that people because I have her kept am I job her side declared. taking Joe’s’, Switzer not the ‘That’s case. The simple fact is that she is a good badly she needs a now as well as bookkeeper job before Joe into got trouble. But with this marriage wonder, business and I’m I’m everything, beginning pretty disgusted.’”
When Mrs. Walker was from her finally fired job, there in the Boulder appeared under newspaper, headline “Mrs. Eleanor Walker Loses Her Job With Electric Switzer Store” the following account: “ T let her go,’ Proprietor M. Switzer Lyndon ‘I today. said don’t care I’ve type advertising been getting by her on. I keeping have had enough inquiries criticism.’
“Switzer he commented that was commended for re- taining Mrs. Walker as his bookkeeper saleslady after first she in’ her ‘turned police, husband but that to. the commendations have changed condemnations since the Walkers were week, remarried each other last their ending common-law marital relationship.” attitude spectators the trial was reported by the Denver Post: short “During recesses Walker heads for secluded of a part lights corridor, up ciga- * * * eye rette and smokes it in the corridor crowds apparent hostility leaving him with and fall him back, alone.” hearing testimony
At the remand of one of the *14 attorneys jury defense was: “The would leave the court- house and there were crowds on the This in stairs. they go the old courthouse, and would between the they go crowd, would outside a restaurant and crowds would follow them to the restaurant and stand they outside the restaurant while ate their lunch or just jury Very dinner, and stand there while the ate. large they crowds them, followed come back through jury the crowds to the box.”
Many analogies Sheppard more between the case and say the case at bar can be drawn. Suffice it to that be- missing tween the time Theresa Foster was found of the end the trial of Joe Walker, Sam the Denver Post approximately alone ran 236 stories.
IV. transcript unfortunately of voir dire summary form, and are we therefore unable deter specific mine the reasons that veniremen were excused opinion from service. We are of the that the defendant specific prejudice against through need not show him proceedings. Compare an examination of the voir dire supra, supra. v. Maxwell, Irvin Dowd, v. concurring In Dowd, Mr. Justice Frankfurter in his opinion observed: “* * * How can fallible men and women reach a dis- exclusively they interested verdict based on what heard they jury when, in court entered the their box, before by press were minds saturated and radio months preceding by designed guilt matter to establish the of obviously conviction the accused. A so secured consti- process due law in its tutes a denial most rudi- mentary conception.” (Emphasis added.) supra, Rideau v. found it was Louisiana, the.court of the voir dire examine the unnecessary transcript examination, stating: “* * hold, we do not hesitate to without pausing examine of the voir dire a particularized transcript examination of the members of the that due jury, process of law in this a trial drawn jury case before required from heard who not seen and community people * * *” Rideau’s televised ‘interview’. Max
In the habeas v. corpus proceedings, only 231 F. it was out well, Supp. pointed of the 72 stated that jurors they prejudged prospective United accused, or but guilt innocence it States District found that had: Court “* * * no finding compunction so the assurances prejudicial petitioner Justice must or in the words jurors be disregarded Mr. jury Frankfurter, entered they jurors] ‘before [the * * * box, their radio minds were saturated by press *15 ” to establish the of the accused.’ designed guilt and In the Walker trial 34 jurors challenged were for excused excused for 3 were and cause; challenged by favor; (15 were exercised challenges preemptory the defense and 10 the prosecution).
In after Scofield, one selected addition, G. R. juror, exhaustion of was challenges, defendant’s preemptory on the for cause jury challenge left defendant’s despite and for favor. and cross Scofield the examination during had an examination said he wouldn’t want who juror on a if he like he had to serve case were “impression” ex- tried. He stated that he had being had previously an ulti- as to how this case should be pressed opinion “on of stories mately decided the basis the newspaper of being When asked whether he felt conscious answered, favorable to one or “I do side another he When further felt slightly.” any whether he questioned consciousness of or favorable to either the being People defendant, he “I He was asked answered, slightly.” do impartially People he whether stood between the entirely.” answered, defendant at his time and “Not juror Ultimately, question- Scofield, after exhaustive ing, jury was left on the because he stated that he would impartial impres- fair and he could set aside pre-formed opinions. sions and his In first Walker we deny challenge cause, held it was not error to for but purpose pub- illustrating impact for the licity juror “impressions.” we note Scofield’s
V. up, only To sum we conclude that the meagerly opinion described in this so was so extensive, prejudicial, slanted and so inflame, calculated to and so all-pervasive posit holding as to this case within the Sheppard. reaching recognize this conclusion we Supreme included in the Court’s reversal of atmosphere was during record the “carnival” imply We, trial. therefore, do not mean to our being conclusions that we find Walker’s as 1949trial atmosphere. held in such a carnival decorum the any courtroom not lost at not time, and there was impossible such confusion in the courtroom that it was jury testimony court, thé counsel and to hear the Sheppard. was sometimes the case in Nevertheless, through stirrings press of Walker’s trial did at large public following. tract a The courtroom on all oc packed general public casions with members of the large press. Although during numbers 'the jury publicity, trial the was insulated from outside those finally during picking process selected were jury. general atmosphere described, As has been charged hostility, with some undercurrent of *16 jury every undoubtedly recess was conscious it.of
Again to much of the adverse summarize, press by was made available to the the law enforcement officials and their witnesses. Much of the information printed e.g., trial, admissible at the Walker’s alleged past molesting girls; criminal record of two so-
486
called made Walker’s wife incriminating by statements lie to of authorities; Keeler’s results publicized detector a similar situation tests, obtaining etc. Noting in Court Sheppard, commented: Supreme “* * * The made avail- evidence prosecution repeatedly able to the news media which was never offered of Much the ‘evidence’ disseminated in this fashion trial. of evidence clearly The exclusion such inadmissible. in court is media make rendered when news meaningless * * *” it available to the public.
The court in footnote 15: further stated evi- “Such of the ‘premature disclosure and weighing dence’ defendant’s may right a seriously jeopardize an either nor the impartial jury. public press ‘[N] had a to be right contemporaneously by informed or of the police authorities of the details prosecuting * * *” evidence accumulated being against [Sheppard], the court In reference to solution to this problem, stated:
“More the trial court well have might specifically, pro- any scribed statements extrajudicial lawyer, party, witness, or court official divulged prejudicial matters, of to submit such as the refusal tests; or take lie detector state- interrogation any any ment made officials; identity pro- testimony; any witnesses or their spective probable or or concern- innocence; belief like statements guilt State v. Van ing Duyne, the merits the case. See 389, 204 in which the 841, (1964), A.2d N.J. court Bar Asso- Canon 20 the American interpreted such ciation’s Canons Professional Ethics prohibit of the interest Being great public statements. advised the case, the mass and the coverage press, potential have the court could also prejudicial impact publicity, officials to requested appropriate city county dissemination promulgate regulation respect * * *” case by information about their employees. *17 Lest this decision be much hind- characterized as so (the sight trial court benefit of the sub- was without sequent decisions have illuminated the which would proper procedures judge follow), for the we note trial court could have some corrective mea- instituted sought to initiate sures at time. Counsel for Walker contempt proceedings against press with no success. judge any The trial even refused hear evidence going though on, what was he could not have been un- requests of it as a mindful citizen. The for continuances Again granted. could have been and should have been Sheppard: note in we “* * * there But where is a reasonable likelihood prejudicial prior prevent trial, news to trial a will fair judge should continue the case until the threat county permeated or transfer it to abates, another not so publicity (Emphasis added.) with holding grounds prejudicial Our on the that there was publicity unnecessary upon makes it to comment points argument urged other in this writ of error. The conviction and sentence of defendant is re- grant versed set aside with to either instruction new trial or release him. specially concurring. Mr. Justice Groves Mr. Justice McWilliams dissenting.
Mr. Justice Groves specially concurring: weight tips causing my
The added the scale con- majority opinion publicity given currence in the is the polygraph especially to the use of the and more publication opinion lying Keeler’s Dr. that Walker was guilt. particular publicity, when he denied This combined majority opinion, other with the matters set forth in my mind created situation where under the rules of Sheppard, deprived Walker was constitutional right to a fair trial. If there no had been polygraph Keeler’s
respect and Dr. the use of opinion, I would dissent. *18 dissenting:
Mr. Chief Justice McWilliams my respectfully instant case does In view the I dissent. Sheppard, con- on the ambit of and fall the not within distinguishable trary is therefrom. Walker and are, course, of similarities between
There duly Sheppard, in chronicled of which have been most myself majority opinion. consid- However, I have the pre- proportions of the the “massive” erable doubt as to my judgment publicity best case, as in in the instant trial nearly pre-trial publicity or “massive,” not so was such Sheppard, “prejudicial” and matter, as that in for that many prior As con- of months much it occurred trial. simply point I out that the Boulder massiveness, cerns would daily as of had a circulation in Denver Post 1949 County Rocky 6,900 of some and the Mountain News county daily 1,900. in same about circulation County population the accord- 1950, And ing Boulder 1950, Year Book for was some the Colorado figures equate circulation 48,296. Whether these pre-trial publicity practical effect “massive” very community my the is in mind inundated entire questionable. assuming preju-
But
that there
massive
even
was
and
very
pre-trial
important
publicity,
is one
dicial
there
Sheppard,
distinction
case
and
between
instant
Sheppard
that is
trial
trial
the conduct of the
itself.
being
as
Roman Carnival va-
characterized
riety,
judge surrendering
trial
courtroom
setting
to the communications
And in this unusual
media.
jury
sequestered
apparently
then
not
even
dur-
ing the
In
Walker’s
contrast,
actual
trial was
trial.
definitely
species
not of the Roman Carnival
and this
majority.
fact I
believe to
conceded
Indeed
this
itself on
Court did
writ
error affirm Walker’s
many
thereby
conviction
in effect
if not in so
— n
general
approved
trial.
words
conduct
People,
v.
In conclusion that the United States Supreme Sheppard’s Court did not reverse conviction pre-trial publicity quote Shep- alone, because I from pard supra, Maxwell, as follows: v. say Sheppard
“While cannot that we was denied process by judge’s precautions due the refusal to take against pre-trial publicity the influence of the alone, rulings against later court’s must be considered set ting light in which the trial In back held. this ground, arrangements we believe that the made judge Sheppard the news media caused to be de ‘judicial prived serenity of this he and calm to which * ** reigned was entitled.’ The fact that bedlam during the courthouse and trial newsmen took over practically hounding the entire courtroom, most *” participants especially Sheppard. in the trial, on Walker’s conviction my by reversing view the ma- which is what pre-trial alone,
basis publicity has done, has now Court pried of this Court jority this all convic- a real Pandora’s box. Now, apparently, open to determine whether tions are to a new review subject massive a trial was any preceding particular was, then say and if we fiat it by judicial prejudicial is sum- conviction under consideration particular the trial was grounds reversed us marily — the trial unfair even as here though presumptively it found to*the court based on evidence before competent if still be trial, possible new such contrary back for one am reluctant feasible, go I ensues. a conviction on the basis years reverse solely stale and in best newspaper my judgment clippings, not such Sheppard case does a result. require analysis case much My pretty squares Patterson, with that set forth in Corbett v. Supp. 272 F. I 602, and to the rationale of that case. In that subscribe case appears following:
“Petitioner reads apparently holding where has been to considerable community exposed it must be prejudicial publicity, pretrial presumed so trial was fair and We do not read impartial. the case.” connection I add that
In this would particular simply I too do not so read Sheppard.