# United States Ex Rel. Brown v. Smith

> District Court, D. Vermont · January 12, 1962 · 200 F. Supp. 885

URL: https://www.frixlaw.com/law-library/cases/1404842

## Case

- **Full name:** UNITED STATES Ex Rel. Frank BROWN, Petitioner, v. Robert G. SMITH, Warden, Vermont State Prison, Respondent
- **Court:** District Court, D. Vermont
- **Decided:** January 12, 1962
- **Citations:** 200 F. Supp. 885
- **Precedential status:** Published
- **Opinion:** Opinion by Timbers
- **Judges:** Timbers
- **Cited by:** 19 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Reversed on other grounds by United States of America Ex Rel. Frank Brown v. Robert G. Smith, Warden, Vermont State Prison, 306 F.2d 596 (1962).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/1404842

## Opinion text

TIMBERS, District Judge.
*
I.
BELIEF SOUGHT AND GRANTED
Petitioner Frank Brown,
1
a prisoner in the Vermont State Prison at Windsor, filed a petition seeking a writ of habeas corpus, pursuant to 28 U.S.C. § 2241 ,
2
claiming that his conviction in the Wind-ham (Vt.) County Court of arson causing death (a capital offense equivalent to first degree murder under Vermont law
3
) and his sentence of life imprisonment, violate his federal constitutional rights.
The Court holds that the failure to accord petitioner a fair trial by a panel of indifferent jurors plus the denial of state appellate review, combined to deprive petitioner of his rights under the Constitution of the United States.
4
Moreover, this is an extraordinary case where issuance by this federal court of a writ of habeas corpus with respect to a state prisoner and, after hearing, the ordering of his discharge, is necessary to prevent a complete miscarriage of justice.
5
Accordingly, the judgment of conviction and sentence of life imprisonment, being in violation of the Constitution of the United States, are set aside as void. Petitioner is entitled to be discharged from detention pursuant to such void judgment and sentence. His discharge, however, will be delayed for a reasonable period of time to enable the State of Vermont to take petitioner before the
*892
court where the judgment was rendered for the purpose of correcting, if susceptible of correction, the defects which render discharge necessary, pursuant to the order and judgment of this Court entered this day and appended hereto.
6
n.
PROCEEDINGS IN THIS COURT
Petitioner filed a verified petition for writ of habeas corpus in this Court July 18, 1961. An order to show cause, entered by this Court (Honorable Ernest W. Gibson) July 20, 1961 and served on respondent the same day, ordered respondent to show cause July 27, 1961 why a writ of habeas corpus should not issue.
July 20, 1961, Judge Gibson disqualified himself from sitting on this matter. The same day, pursuant to 28 U.S.C. § 292 (b), the Acting Chief Judge of the Court of Appeals for the Second Circuit designated the undersigned to sit in the District of Vermont to hear and determine this matter.
7
Pursuant to such designation, a hearing was held before the undersigned in Brattleboro, with sessions July 27, August 14, 15,16, September 12 and December 22, 1961.
The July 27 session was in the nature of a pretrial hearing, following which the Court entered an order directing, among other things, that appropriate pleadings be served and filed; that the complete record of all proceedings in the Windham County Court and the Vermont Supreme Court in the case of State of Vermont v. Frank Brown,
8
be lodged with the Clerk of this Court in Brattleboro forthwith; that the hearing on this matter resume August 14 and continue in successive daily sessions until concluded; that witnesses and documents be subpoenaed accordingly; that petitioner be present at the August 14 session and at all subsequent sessions; that the first issue to be considered and ruled on at the August 14 session would be whether petitioner had exhausted his state remedies; that, in the event the Court should rule that petitioner had exhausted his state remedies, counsel should be prepared to go forward August 14 with the hearing on the merits; and that the application of the American Civil Liberties Union for leave to participate as amicus curiae be granted.
9
At the August 14 session, after hearing argument by counsel, the Court made a preliminary determination that petitioner had exhausted his state remedies.
10
Thereafter, the August 14, 15 and 16 sessions were devoted largely to identifying, marking in evidence and referring to exhibits, including the records of the state court proceedings; taking judicial notice of relevant provisions of the Vermont Constitution and statutes; and to recording stipulations of counsel in open court with respect to certain relevant details of state court practice
*893
which did not appear altogether clear to the Court upon its initial examination of the state court record (e. g. the conduct of the voir dire examination of prospective jurors and the function of “assistant judges” in the trial of a criminal case).
After the August 16 session was concluded, counsel were allowed time within which to serve and file briefs, proposed findings of fact and conclusions of law. A transcript of the hearing was prepared by the official court reporter and furnished to counsel. Oral arguments were heard September 12. The Court announced its decision in open court and entered its order and judgment December 22.
in.
FEDERAL CONSTITUTIONAL QUESTIONS RAISED
Petitioner has raised in this Court a number of federal constitutional questions, the most serious of which, and with respect to which he has exhausted his state remedies, are the following:
First.
Whether the claimed failure to accord petitioner a fair trial by a panel of indifferent jurors constituted denial of due process in violation of the Fourteenth Amendment?
Second.
Whether the claimed denial of state appellate review of a conviction equivalent to first degree murder which resulted in the imposition of a sentence of life imprisonment, following failure to accord a fair trial, constituted denial of due process and equal protection in violation of the Fourteenth Amendment ?
As stated above, this Court holds on the record before it that both questions must be answered in the affirmative. These conclusions are based on the following findings of fact and evaluations of the facts as found.
IV.
DENIAL OF A FAIR TRIAL BY A PANEL OF INDIFFERENT JURORS
Petitioner was indicted July 23, 1959
11
for having burned a building in Brattleboro December 26, 1958 as a result of which Lyman Streeter lost his life.
12
The State claimed the fire was started in a ground floor drug store which was managed and controlled by petitioner and that Streeter died of asphyxiation resulting from inhaling smoke in the third floor apartment which he occupied.
13
A. State’s Public Disclosure of Petitioner's Alleged Criminal Record
July 27, 1959 petitioner was arraigned on this indictment in the Wind-ham County Court. He pleaded not guilty.
14
Thereupon, the Deputy Attorney General, representing the State,
15
immediately moved that petitioner “be committed
*894
to Waterbury for observation and determination of his sanity”.
16
The court overruled the motion.
17
Petitioner then moved for bail.
18
In support of this motion, he called Dr. Ruml who testified that petitioner had been his patient for a year or a year and a half; that six or seven months before the hearing petitioner had suffered a coronary attack from which he recovered; that about two months before the hearing petitioner suffered an acute attack of heart failure from which he also recovered; and that in the doctor’s opinion the chances of recurrence of such attacks would be less if petitioner were admitted to bail than if he were committed to jail pending trial.
19
On cross examination, the Deputy Attorney General asked the doctor:
20
“Q. Now, Doctor, would it make any difference in your opinion if the individual whom we are discussing, if you learned the individual whom we are discussing has been previously arrested and incarcerated on the following convictions?”
Petitioner’s counsel objected on the ground that “it is highly prejudicial.”
21
The court asked the Deputy Attorney General, “What do you say about the element of prejudice ?”
22
After the Deputy Attorney General explained he was trying “to see if the doctor has all the facts regarding the background,”
23
the court suggested, “Why don’t you simply ask whether without skirting the element of prejudice?”
24
The Deputy Attorney General then asked the doctor:
25
“Q. Would it make any difference to your opinion, Doctor, if it were the fact that on thirty-six different occasions this respondent has been charged with at least one crime ?”
Petitioner’s counsel again objected; the court overruled the objection.
26
The doctor replied, “No, I don’t think it would.”
27
The Deputy Attorney General persistent in asking the doctor:
28
“Q. It is six weeks between now and trial, about six weeks. Would it make any difference to your opinion if the respondent on at least eight different occasions spent periods of time longer than six weeks in jail?”
The doctor replied in the negative.
29
On re-cross examination of the doctor, the Deputy Attorney General prefaced his opening question with this observation :
30
“Q. I respect your opinions and don’t appear to be nasty or sarcastic about them. In fact I am not nasty or sarcastic because I am sure they are genuine.”
In argument to the court opposing the motion for bail, the Deputy Attorney General stated:
31
“We could call the respondent to the stand in this proceeding but the only purpose would be to go into the part of his criminal record which I have here, just received special delivery from Boston. This is the part when he was in Boston between 1928 and 1944. And I don’t want to prejudice the respondent.”
The court, after deliberation, denied the motion for bail with the observation, “ * * * this man is charged with a capital crime and in view of that we deny
*895
your motion for bail and you may have exceptions to that.”
32
Evaluation
In view of the prominence given by the press to petitioner’s alleged criminal record and in view of the number of jurors later empanelled to try petitioner who had read about the case in the newspapers (6 of the 12 regular jurors, as well as the 2 alternates
33
), the following is the Court’s evaluation of the justification for the Deputy Attorney General’s injection of petitioner’s alleged criminal record into the proceedings on the motion for bail:
(i) The doctor had expressed a simple but logical opinion with respect to the relative chances of recurrence of petitioner’s coronary or heart failure attacks if he were admitted to bail as compared with being confined to jail.
(ii) Petitioner’s heart ailments, to which the doctor referred, had occurred within a period of 6 or 7 months prior to the hearing.
(iii) To test the validity of the doctor’s opinion and ostensibly to show that petitioner would be as much at home inside as outside jail, the Deputy Attorney General pressed his inquiry about “thirty-six different occasions” when petitioner “has been charged with at least one crime” and about “at least eight different occasions” when petitioner “spent periods of time longer than six weeks in jail”.
(iv) What the Deputy Attorney General failed to disclose to the doctor but did disclose to the court at the very end of the hearing, was that petitioner’s alleged criminal record related to a period of time 15 to 31 years earlier — obviously having not the slightest relevance to the heart condition about which the doctor testified.
(v) Aside from being irrelevant to the doctor’s testimony, such a criminal record (assuming a segregation of arrests from convictions) under Vermont law would not be admissible even if petitioner had taken the witness stand at the trial in his own behalf; for only convictions
within 15 years
of crimes involving moral turpitude can be used to impeach the credibility of a witness.
34
(vi) Had the Deputy Attorney General seriously believed that an alleged record of petitioner’s arrests and convictions antedating the hearing by more than 15 years was relevant to the issue of likelihood of flight on a motion for bail involving an offense as to which the accused had no right to bail under the Vermont Constitution,
35
surely such record could have been brought to the attention of the court in such a manner as to safeguard against the publicity and prejudice which flowed from the manner in which the .Deputy Attorney General forced the disclosure in this case — prejudice which the record here shows was instantly recognized by the court, by petitioner’s counsel and by the Deputy Attorney General.
36
In short, the public disclosure of petitioner’s alleged criminal record, with its devastating effect — alone and in combination with other factors — upon petitioner’s chances for a fair trial by a panel of indifferent jurors, was directly attributable to the State. It was “a gross impropriety on the part of the prosecuting officials [to have] made
*896
available to the press all this damaging material respecting [petitioner]
.”
37
B. Petitioner’s Motion For Change of Venue
July 28, 1959, the day following arraignment of petitioner and denial of his motion for bail, there appeared in The Brattleboro Daily Reformer (Brattleboro’s only daily newspaper) a front page, right hand column story (the space reserved for the lead local story) with a 24 point type head reading:
38
“BROWN HELD FOR ARSON TRIAL IN SEP T.”
Directly under this head was a subhead, referred to as a three line hanger, reading:
39
“BAIL DENIED BY COURT: RECORD OF 36 ARRESTS CITED”
The story itself, reciting the events of the previous day’s session in the Wind-ham County Court, while omitting to mention that petitioner pleaded not guilty, did mention the denial of the Deputy Attorney General’s motion to have petitioner committed to the Waterbury State Hospital, the setting of the trial date for September 15 and the denial of petitioner’s motion for bail.
40
In connection with the latter, there was a summary of Dr. Ruml’s testimony, including the following questioning by the Deputy Attorney General (all on the front page, right hand column):
41
“Deputy Atty. Gen. Debevoise asked Dr. Ruml is [sic] he would change his opinion if he knew that the respondent had been charged on 36 different occasions with at least one crime and had been sentenced at least eight times to serve longer than six weeks in jail in Massachusetts, according to his Boston criminal record between 1928 and 1944.”
September 4, 1959, almost two months before the trial got under way, petitioner filed a motion for change of venue.
42
Under the Vermont statute,
43
either the State or the accused may move for change of venue where the offense is punishable by death or imprisonment in the state prison. The motion alleged, among other grounds, that “there have been several accounts published in the Brattleboro Daily Reformer which indicate along with many other prejudicial things, that the respondent is the possessor of a record of thirty-six arrests and it is respectfully submitted that such a representation said to have been made by the Deputy Attorney General and widely published throughout Wind-ham County by the said Brattleboro Daily Reformer, cannot help but prejudice the respondent.”
44
At the hearing on petitioner’s motion for change of venue on October 1, 1959, the following facts, among others, were established:
(1) That subsequent to the fire on December 26, 1958, and more particularly from June 11, 1959 to and including July 29, 1959, the matter of the fire and petitioner’s involvement received wide and extensive coverage in the Brat-tleboro Daily Reformer.
45
(2) In addition to the publication of petitioner’s alleged criminal record, this newspaper on July 25, 1959 published on its front page such statements as the
*897
following concerning the fire and petitioner’s connection therewith:
46
“His arrest followed a long investigation by the State Fire Marshal’s Office climaxed recently by exhumation of Streeter’s body for an autopsy.”
“State Pathologist Richard S. Woodruff of Burlington reported his findings were that Streeter’s death was caused by smoke inhalation.”
“Brown drove up to the police station in a blue Cadillac convertible . . .
(3) A three-column, six inch square photograph of petitioner “on his way to jail” (according to the caption) prior to his arraignment was published on the front page of the Brattleboro Daily Reformer on July 25, 1959
47
— “largely based on the need of size in order to do justice to the subject.”
48
(4) The Brattleboro Daily Reformer on April 1, 1959 had a net paid circulation of 7,108, all except approximately 600 being in Windham County. Of the 7,108 total circulation, 4,412 were distributed in the Brattleboro Town Zone where the paper had a 90.80% coverage of all families, and 2,158 were distributed in the Brattleboro Trading Zone (within a 25 mile radius of Brattle-boro
49
) where the paper had a 75.69% coverage of all families.
50
The paper had a circulation in 16 towns of Wind-ham county.
51
(5) During the same period of time referred to in paragraph (1) supra, Brattleboro radio station WTSA broadcast petitioner’s involvement in the fire, his arrest, his arraignment and other news items in connection therewith.
52
(6) Radio station WTSA, which has a coverage within approximately a 25 mile radius of Brattleboro, has a large listening audience;
53
it serves a population (including areas outside of Vermont) of 87,800 people where there are 30,300 homes, of which 28,810 are radio equipped; and there are 20,410 radio equipped automobiles in the area.
54
(7) All broadcasts by radio station WTSA concerning petitioner’s involvement in the fire, his arrest, his arraignment and other news items in connection therewith, were based on U.P. releases; such broadcasts were made two or more times a day; samples of such releases were marked as exhibits.
55
(8) A lawyer who had practised for 25 years in Windham County, was then first vice president and later president of the Vermont Bar Association and who lived in Newfane (where petitioner later was tried for arson), testified without objection that, based on his discussions with “people throughout the county” concerning the news releases about the fire and the proceedings against petitioner :
“My opinion is that the publicity attending the arrest of Mr. Brown has definitely created prejudice against him.”
56
*898
The State offered no evidence in opposition to petitioner’s motion for change of venue.
57
At the conclusion of the hearing, the court inquired of counsel, “ * * * if this motion were granted what county do you have in mind it should be changed to?” Counsel for petitioner replied, “ * * * in any of the other thirteen counties of the State.” The Deputy Attorney General replied, “I think the counties are all the same in the State.”
58
The court took the motion under advisement.
59
October 8, 1959 the court made certain findings of fact.
60
It recited the nature and extent of newspaper and radio coverage of the fire and of petitioner’s involvement therein; it observed that “the articles appear nothing more than abstract reporting, the type of ‘news story’ we have become familiar with, know of and are little influenced or impressed by”; it characterized the radio broadcasts as “nothing more than a dissemination of a normal news topic of more than average interest to the inhabitants of Windham County"; it referred to the testimony of the vice president of the Vermont Bar Association as having “expressed the opinion that [petitioner] could not receive a fair and impartial trial in the County” (which was
not
his testimony) and then added, “We have given this opinion such weight as we think it is entitled to receive”; and it expressed “every confidence that counsel will be able to protect [petitioner’s] rights” upon the voir dire examination of prospective jurors when “any knowledge of the case or prejudice will quickly appear and we of course must assume that all queried will answer truthfully.” Accordingly, petitioner’s motion for change of venue was denied, with an exception to petitioner.
61
October 26, 1959, the opening day of the trial, counsel for petitioner renewed the motion for change of venue. The court again denied the motion, without comment, and granted petitioner an exception.
62
Evaluation
The disclosure of petitioner’s alleged criminal record, of the investigation by the State Fire Marshal’s Office climaxed by exhumation of Streeter’s body for an autopsy, of the findings of the State Pathologist as to the cause of Streeter’s death and of the complicity of petitioner in the alleged crime before he was tried, before he was arraigned and before he was indicted- — disclosures which emanated from the law enforcement and investigatory officials of the State of Vermont — were given “wide and extensive coverage in the Brattleboro Daily Reformer” and “were placed on the air at least twice in each instance and quite possibly more than twice” over “Radio station WTSA [which] has a large listening audience within its broadcasting area.”
63
This publicity by newspaper and radio blanketed Windham County, reaching the saturation point in Brattleboro and its environs, from which a jury was to be drawn to try petitioner for a crime defined as first degree murder under Vermont law. The difficulty presented by
*899
such publicity in getting a fair trial for the accused has been expressed by the Court of Appeals for this Circuit as follows:
64
“We again stress the obligation that rests upon all law enforcement agencies to avoid making any public statements concerning the progress of the investigation of a crime or the proof already obtained as to the complicity of any person who is either a defendant or likely to be prosecuted for the crime. Judge Edelstein’s opinion ([United States v. Dioguardi, D.C.] 20 F.R.D. 33 ) properly condemned publicity emanating from law enforcement officials in criminal prosecutions in general, and in this case in particular, because of the difficulty it creates in getting a fair trial for the accused.”
C. Voir Dire Examination of Prospective Jurors
After disposing of certain preliminary matters,
65
the empanelling of the jury began in the Windham County Court at Newfane (12 miles from Brattleboro) Monday, October 26, 1959, at 2 P.M. It continued through that day, all of the following day and was completed the third day, October 28, at 10:25 A.M.
66
A jury of twelve, plus two alternates, was empanelled.
Method of Conducting Voir Dire Examination
The method of conducting the voir dire examination was as follows.
67
The box was filled with twelve prospective jurors drawn by lot. An improvised witness oath was administered. The remaining veniremen retired to the jury rooms downstairs to await being called to replace those excused. The twelve prospective jurors in the box were examined as a group and individually — always in the presence of the others in the box. Those excused for cause were dismissed immediately. Dismissal of those challenged peremptorily was deferred until the end of that session of court, i. e. the noon recess or the recess at the end of the day. Those excused, whether for cause or peremptorily, were replaced immediately. Only the replacements for those excused for cause took seats in the jury box immediately. The replacements for those challenged peremptorily were seated temporarily in front of the jury box until the next recess. The replacements were examined in the presence of each other and those not excused; except that the replacements for those challenged peremptorily were examined in the presence of all in the box, including those who had been challenged peremptorily but were unaware of it.
In this manner the voir dire examination was conducted at all times in the presence of twelve or more prospective jurors, including those in the box as it was constituted from time to time who ultimately were among those empanelled as the jury of twelve. For example, three of the twelve jurors ultimately empanel-led to try petitioner — jurors Larabee, Isham and Jenness — were among the original twelve veniremen called to the box ;
68
they were present throughout the
*900
entire voir dire examination and heard each question asked and each answer given.
69
The prospective jurors who were in the box when the court recessed from time to time during the voir dire examination were kept together by the court officers and were locked up in a Brattle-boro hotel each night.
70
Petitioner and the State each had six peremptory challenges, that being the number allotted in all criminal cases whether capital or. non-capital.
71
Of the 47 prospective jurors examined during the voir dire, 41 were drawn from the regular jury list
72
and 6 were talesmen
73
summoned in response to the court’s direction to the sheriff.
74
Three of the talesmen thus summoned were empanelled as members of the jury of 12
75
and 2 of the talesmen were empan-elled as alternates.
76
Of the 33 prospective jurors who were excused, 6 were challenged peremptorily by petitioner, 3 were excused upon challenge for cause by petitioner, 21 were excused upon challenge for cause by the State and 3 were excused for cause by the court. No peremptory challenges were exercised by the State.
77
Disclosures During Voir Dire Examination
Of the 21 prospective jurors who were excused upon challenge for cause by the State, 8 were opposed to the death penalty in any case and 13 were opposed to the death penalty in a case of non-intentional killing.
78
Of the 26 prospective jurors who were examined beyond the question of their scruples concerning capital punishment, 11 personally knew Streeter or members of his family; 8 had had their hair cut by Streeter or had been in his barber shop; 4 were members of fraternal orders to which Streeter belonged; none knew petitioner or members of his family; 5 had traded at petitioner’s drug store; 13 had read or heard publicity about the fire and petitioner’s connection therewith, in newspapers or on radio or TV; 8 were subscribers to or regular readers of the Brattleboro Daily Reformer; 13 were aware of anti-Jewish sentiment but denied it would influence them as jurors.
79
Jury Empanelled To Try Petitioner
As a result of the voir dire examination, there emerged, to try petitioner for first degree murder, a jury of 12, plus 2 alternates, with the following badges of doubtful indifference:
(a) Five (3 regulars and 2 alternates) had known Streeter, 2 of the regulars for 10 years or more.
80
(b) Four (3 regulars and 1 alternate) had had their hair cut by Streeter or had been in his barber shop, including the husband of one of the regulars who was a customer of Streeter
81
(c) Two regulars were members of fraternal orders to which Streeter be
*901
longed;
82
one regular and the husband of another were members of a veterans organization to which Streeter belonged.
83
(d) VvTiile none knew petitioner or any members of his family, 3 regulars had traded at his drug store; a fourth had traded there for 11 years before petitioner acquired it, but not since.
84
(e) Eight (6 regulars and 2 alternates) had read, heard or seen publicity about the case in newspapers, on radio or TV.
85
(f) Eight regulars were subscribers to or regular readers of the Brattleboro Daily Reformer.
86
(g) Nine (8 regulars and 1 alternate) were aware of anti-Jewish sentiment.
87
Other Occurrences During Voir Dire Examination
The following also occurred during the voir dire examination of prospective jurors:
(1) Having in mind the public disclosure by the Deputy Attorney General of petitioner’s alleged criminal record and the publicity by newspaper and radio which blanketed Windham County concerning the case and petitioner’s connection with it, this line of inquiry by the Deputy Attorney General to the prospective jurors takes on special significance :
88
“MR. DEBEYOISE: * * * Now lastly but perhaps most important to both the State and the respondent in this case, there has been some newspaper stories, news stories about the fire that happened in this case and other stories about the matter. Have any of you seen such stories in the papers?
[Two prospective jurors indicate in the affirmative.]
“I believe when the indictment was returned in this case there was also some stories about Mr. Brown in connection with the fire. Has anyone seen any of those stories ?
[A prospective juror indicates she may have.]
“In addition to news stories in the newspapers there have also been news broadcasts, radio and television. Have any of you seen or heard such stories on the radio or television?
[A prospective juror indicates in the affirmative.]”
Questions in like vein were asked again and again by the Deputy Attorney General.
89
(2) More than half of the voir dire examination consisted of questions by the Deputy Attorney General on the subject of punishment. Granted that it was a proper subject of inquiry in a capital case, by the same token appropriate restraint should have been exercised to safeguard against the inevitable prejudice which resulted from the following:
(a) On at least seven occasions,
90
the Deputy Attorney General,
without stat
*902
ing that it first would be necessary to find the accused guilty,
asked prospective jurors whether they would hesitate to vote for the death penalty, thus implying that the sole function of the jury about to be empanelled was to determine the degree of punishment. For example, he asked the prospective juror Mrs. Allen:
91
“The crime here charged is that Frank Brown set fire to a building and as a result of the fire Lyman Streeter lost his life. That crime, the legislature has said, shall be punishable at the choice of the jury, either by death or life imprisonment. In principal are you opposed to the death penalty?”
(b) Although each prospective juror was asked whether he or she would hesitate to vote to impose the death penalty,
not a single one was asked whether he or she would hesitate to vote for life imprisonment
if petitioner were found guilty.
92
(c) At no time during the voir dire examination were the prospective jurors told that
intent to commit arson was a necessary element of the crime charged.
On the contrary, the Deputy Attorney General emphasized the absence of any necessity of showing intent to kill :
93
“MR. DEBEVOISE: In this case the statute provides that where somebody sets fire to a building and another person dies as a result, there is no necessity to charge that there was any premeditation or malice to kill that individual. The crime is setting fire to the building * *
And another instance
:
94
“MR. DEBEVOISE: * * * It wasn’t necessarily a premeditated killing.”
(3) At the very outset, before the em-panelling of the jury began, one of the members of the Grand Jury that indicted petitioner for arson causing death was sworn as a Deputy Sheriff to act as a court officer, including the handling of the petit jury, at the trial of petitioner.
95
Disclosure that this Deputy Sheriff had served on the Grand Jury came after fiat denials to the contrary by the Deputy Attorney General and the clerk.
96
Only after persistent pressing of the inquiry by petitioner’s counsel, did the court finally order, “We won’t permit him to have anything to do with the jury.”
97
(4) One of the prospective jurors, who had known Streeter for four or five years and had had his hair cut by him,
98
recalled that “Mrs. Streeter (widow of the victim of the fire) was a deputy here when I served on a jury before. * * * ”
99
(5) Mrs. Jenness, one of the jury of 12 empanelled to try petitioner, was friendly with a member of the Grand
*903
Jury that returned the indictment;
100
the Grand Juror told Mrs. Jenness “a week or so later” that “she had been on the jury that caused the indictment.”
101
(6) The court refused to excuse for cause, upon challenge by petitioner, a prospective juror who had been prosecuted by petitioner’s counsel when the latter was State’s Attorney;
102
despite the existence of clear ground for this venireman to be excused for cause, the Deputy Attorney General vehemently objected ;
103
petitioner thereupon was compelled to exercise a peremptory challenge
104
(7) Another prospective juror, drawn the first day of the voir dire examination, who had “known the whole Streeter family”, made it abundantly clear that “it would prejudice me;”
105
despite the Deputy Attorney General’s willingness to excuse her for cause,
106
the court persuaded her to change her position,
107
whereupon thfe Deputy Attorney General withdrew his motion;
108
the court then denied petitioner’s motion to excuse her for cause ;
109
and not until the
following day
(after she had remained in the jury box for a full day and had been locked up overnight with the others then in the jury box), was she eventually excused by the court with the observation, “I think we can get somebody untainted with any prejudice.”
110
(8) Still another prospective juror said she “was resentful” over “business dealings with [petitioner] which were unpleasant;”
111
although the State in fairness asked that this juror be excused for cause,
112
the court refused to excuse her at first;
113
thereafter, in response to a question whether her discussions of the case with others “concerned the formation of an opinion as to the guilt or innocence of Mr. Brown,” she said, “* * * Everybody discussed it. There were pros and cons.”
114
Not until the
following day
(after she likewise had remained in the jury box for a full day and had been locked up overnight with the others then in the jury box), did the court excuse her for cause, with the observation that “ * * * if the respondent were convicted here. It would be a matter for him to feel probably someone on the jury he had had a disagreement with and that person might have influenced the others.”
115
(9) The wife of a member of the Brattleboro Fire Department
116
expressed the view that “Of course every time the fire alarm blows it might mean both police and fire, it means danger” ;
117
when asked if “it would make it any more difficult for you to reach an impartial verdict as between the State in an arson case and the respondent?” , she answered, “It might” ;
118
when asked if “It might
*904
require a lot more evidence or proof to satisfy you one way or the other in this particular type of a case ?”, she answered, “I think so”;
119
nevertheless she was kept in the jury box until the
following day
(after being locked up overnight with the others then in the jury box), before being excused by the court upon challenge by petitioner for cause
120
and then only over vigorous protest by the State.
121
(10) Another prospective juror, before being excused for cause,
122
expressed in no uncertain terms the depth of his prejudice “for one side or the other” ;
123
that he had formed an opinion “as to the guilt or innocence of [petitioner]” ;
124
and such opinion was “On the basis of something [he had] read or heard.”
125
(11) “ * * * a sympathy with Mrs. Streeter which would prejudge this case”
126
to the point that he “could not determine the guilt or innocence of [petitioner] strictly upon the facts”
127
was expressed by another prospective juror before he was excused by the court.
128
(12) Mr. Threlkeld, one of the alternates empanelled,
129
was acquainted with Streeter on the basis of “that relationship as I was in his chair in the barber shop;”
130
had read in the Brattleboro Reformer and the Rutland Herald that Brown “was charged with the fire” ;
131
and had “been back to the barber shop since the fire”
132
when he made the comment to the other barbers “that I noticed about the happening in the paper and was very sorry, that sort of thing.”
133
(13) Mr. Timmes, one of the regular jurors empanelled and who served as foreman,
134
when asked, since he was a subscriber to the Brattleboro Reformer,
135
whether he had read anything “about the fire or Mr. Brown’s connection with it”, replied, “I did read, it was in the paper about trying to collect fire insurance” ;
136
and he had been in Brown’s drug store “within a month before the fire”.
137
(14) Mr. Merritt, another of the regular jurors empanelled,
138
had done appraisal work for the State of Vermont in highway cases.
139
After the voir dire examination was concluded and a jury of 12 regulars, plus 2 alternates, had been empanelled, the clerk read the indictment and stated to the jury:
140
“The respondent has been arraigned in open Court and has entered a plea of not guilty and placed himself upon the country for trial, which country, ladies and gentlemen of the jury, you are.”
Evaluation
The voir dire examination of prospective jurors must be evaluated
141
*905
in
the light of the State’s public disclosure of petitioner’s alleged criminal record
142
and the disclosures made on petitioner’s motion for change of venue
143
to determine whether petitioner was brought to trial before a panel of impartial, indifferent jurors, the denial of which would violate the minimal standards of due process.
144
The disclosures during the voir dire examination — referring particularly to those enumerated in the preceding section of this opinion
145
— are significant in that they occurred in the presence of all prospective jurors in the box or elsewhere in the courtroom, including at all times at least three of those who ultimately were empanelled to try petitioner for first degree murder;
146
the prospective jurors who were in the box when the court recessed from time to time during the voir dire examination were kept together by the court officers and were locked up each night;
147
the conduct of the voir dire examination extended over portions of three days of the trial;
148
during long periods of this time, frequently overnight, certain prospective jurors, who were clearly disqualified because of bias or prejudice and ultimately were excused for that reason,
149
nevertheless remained in close association with the other veniremen in the box, including some who sat in judgment of petitioner; and, for aught that appears in the record before this Court, the prospective jurors were at liberty to discuss among themselves what, occurred during the voir dire examination.
150
ij
The chief significance of the voir dire' examination, in the opinion of this Court, is that it reflected the climate of the courtroom and the pulse of the community in which petitioner was brought to trial. The community being a relatively small one, its pulse was more sensitive than might have been the case in a larger community to such influences as disclosure of petitioner’s alleged criminal record;
151
sympathy for the victim of the fire — a life-long resident of the community who was a popular barber;
152
prejudice against the accused — a foreign born man of the Jewish faith who had lived in the community for only two years
153
and, although not well known in the community, had made enemies as the proprietor of a cut rate drug store;
154
and the saturation coverage of the community with stories about the fire, petitioner’s complicity in the alleged crime and the State’s investigation of the crime.
155
The federal constitutional question here presented is whether on this record petitioner was tried for first degree murder by a panel of impartial and indifferent jurors; if not, of course he did not receive a fair trial — indeed, in the eyes of the law, he received no trial at all — and was denied due process in
*906
violation of the Fourteenth Amendment.
156
Determination of impartiality is not easy. It is not susceptible of solution by an exact science. There are no absolutes upon which a court may rely. Chief Justice Hughes, speaking for the United States Supreme Court, said:
157
“Impartiality is not a technical conception. It is a state of mind. For the ascertainment of this mental attitude of appropriate indifference, the Constitution lays down no particular tests and procedure is not chained to any ancient and artificial formula.”
The one clear mandate to a federal district court in a habeas corpus proceeding in determining whether a state prisoner was tried by an
impartial
jury in the
constitutional
sense is that “ * * the District Judge must exercise his own judgment on this blend of facts and their legal values. Thus, so-called mixed questions or the application of constitutional principles to the facts as found leave the duty of adjudication with the federal judge.”
158
Mr. Justice Holmes put it this way: “We shall not say more concerning the corrective process afforded to the petitioners than that it does not seem to us sufficient to allow a Judge of the United States to escape the duty of examining the facts for himself when if true as alleged they make the trial absolutely void.”
159
In determining, when a prisoner’s life or liberty is at stake, whether there has been a denial of due process of law because of trial by jurors lacking impartiality, the United States Supreme Court recently prescribed what this Court understands to be its precise function in the instant proceeding: “It was, therefore, the duty of the [federal court] to independently evaluate the
voir dire
testimony of the impaneled jurors.”
160
“And the object of habeas corpus is to search records to prevent illegal imprisonments.”
161
In complying with the mandate of the United States Supreme Court to search the records of the state court proceedings and independently to evaluate the voir dire examination for the purpose of determining whether petitioner was tried by a jury of sufficient impartiality to comply with constitutional due process standards, the Court has endeavored scrupulously to refrain from reviewing the record from the standpoint of appellate error, that being exclusively a state court function under our federated system.
162
Moreover, the Court recognizes the broad discretion appropriately granted to state trial courts in ruling on such matters as motions for change of venue
163
and challenges for cause in the empanelling of a jury.
164
It is not the province of a federal court in a habeas corpus proceeding involving the legality of detention of a state prisoner to determine whether error was committed by the state courts. It is, however, clearly the duty of the federal court in such a proceeding to determine whether due process was denied. The distinction is-
*907
vital. This Court has done its best to discharge its duty in this proceeding strictly within the confines of its habeas corpus jurisdiction.
165
Vermont has written into its organic law articulate safeguards not only for trial by jury but for trial by an
impartial
jury:
“ * * * The parties have a right to trial by jury, which ought to be held sacred.”
166
“ * * * in all prosecutions for criminal offenses, a person hath a right to * * * a speedy public trial by an impartial jury of the country.”
167
“ * * * great care ought to be taken to prevent corruption or partiality in the choice and return, or appointment of Juries.”
168
And the Vermont Supreme Court requires the standard of “utmost impartiality” in the conduct of a trial:
169
“ * * * it is the duty of the court to conduct a trial with the utmost impartiality and fairness * *. This obligation extends throughout the trial.”
Agreement by a state with federal constitutional due process standards, however, does not foreclose inquiry by a federal court in a habeas corpus proceeding into whether federal standards have been complied with in a particular state court proceeding; nor is a federal court foreclosed in such a case from setting aside a conviction for denial of due process.
17
0
In the instant case, “after a long, hard look at the whole picture presented”
171
and based on “an appraisal of the totality of facts”,
172
this Court holds that petitioner was tried by a jury clearly lacking impartiality and his “conviction so secured obviously constitutes a denial of due process of law in its most rudimentary conception.”
173
On the record before this Court, it might well hold that due process was denied petitioner “at nearly every step of the proceedings.”
174
Such holding, however, is not necessary to the decision in this case and the Court does not decide it on that basis. The Court does hold that the combination of facts disclosed by this record establish beyond any doubt that the jury empanelled to try petitioner for a crime defined as first degree murder was not an impartial, indifferent jury. Accordingly, petitioner was denied a fair trial in violation of the due process clause of the Fourteenth Amendment.
, The State’s public disclosure of petitioner’s alleged criminal record under the circumstances outlined above
175
struck the initial blow at petitioner’s right to a fair trial.
176
The influence of
*908
that poisonous -injection permeated all subsequent proceedings — to such an extent that “Here the build-up of prejudice is clear and convincing. An examination of the then current community pattern of thought as indicated by the popular news media is singularly revealing.”
177
The unfortunate and disturbing effect of such publicity has been well stated by Judge Charles E. Clark (with whose views in this respect Chief Judge Lumbard and Judge Friendly agreed):
178
“From its inception this case was given unusual and disturbing publicity in newspapers, journals, and magazines; and this unfortunate feature has persisted up to this date, with even the prosecutors indulging in highly colored accounts while the case has been pending on appeal.
******
“This is vastly unfortunate; not only does it go beyond the judicial record necessary for its support, but it suggests that the administration of the criminal law is in such dire straits that crash methods have become a necessity. But it seems we should have known better, and a prosecution framed on such a doubtful basis should never have been initiated or allowed to proceed so far. For in America we still respect the dignity of the individual, and even an unsavory character is not to be imprisoned except on definite proof of specific crime. And nothing in present criminal law administration suggests or justifies sharp relaxation of traditional standards.”
In holding that petitioner was tried by a jury lacking the impartiality required for due process, the Court is mindful that the jurors empanelled disclaimed any prejudice or partiality; otherwise of course they would not have been accepted. The constitutional test of impartiality, however, does not turn on the subjective declarations of the individual jurors. “No doubt each juror was sincere when he said that he would be fair and impartial to petitioner, but the psychological impact requiring such a declaration before one’s fellows is often its father.”
179
Recalling the impact of the State’s public disclosure of petitioner’s alleged criminal record, “The influence that lurks in an opinion once formed is so persistent that it unconsciously fights detachment from the mental processes of the average man.”
180
*909
The record before the Court in this proceeding discloses facts which tend to show that if petitioner had been tried by an impartial jury, he might well have been acquitted. Six months after petitioner was convicted in' the Windham County Court of arson causing death, a jury in a civil case in the United States District Court for the District of Vermont at Burlington (140 miles north of Brattleboro) found, by special verdict, that the fire (for the setting of which petitioner was convicted of arson causing death and sentenced to life imprisonment) was not “of incendiary origin.”
181
The civil case was one brought by the Harry Softer Drug Co. Inc. (owner of the drug store where the fire occurred) against several insurance companies to recover on the fire insurance policies covering the store at the time of the fire.
182
While differences between the criminal and civil cases with respect to such matters as the parties, the issues and the evidence
183
may be open to debate, the one critical fact common to both cases is that
the fire was the same.
And yet one jury drawn from Windham County found it was of incendiary origin; another jury drawn from the Burlington area reached the opposite conclusion. The relevance of this to the issue of whether petitioner was tried by an impartial jury is: it robs petitioner’s claim, particularly that there should have been a change of venue, of any purely academic character.
184
The United States Supreme Court has succinctly summarized the historic, fundamental principle here involved — the guarantee to the criminally accused of a fair trial by a panel of impartial jurors:
185
“England, from whom the Western World has largely taken its concepts of individual liberty and of the dignity and worth of every man, has bequeathed to us safeguards for their preservation, the most priceless of which is that of trial by jury. This right has become as much American as it was once the most English. Although this Court has
*910
said that the Fourteenth Amendment does not demand the use of jury trials in a State’s criminal procedure, Fay v. New York, 332 U.S. 261 [ 67 S.Ct. 1613 , 91 L.Ed. 2043 ]; Palko v. Connecticut, 302 U.S. 319 [ 58 S.Ct. 149 , 82 L.Ed. 288 ], every State has constitutionally provided trial by jury. See Columbia University Legislative Drafting Research Fund, Index Digest of State Constitutions, 578-579 (1959). In essence, the right to jury trial guarantees to the criminally accused a fair trial by a panel of impartial, ‘indifferent’ jurors. The failure to accord an accused a fair hearing violates even the minimal standards of due process. In re Oliver, 333 U.S. 257 [ 68 S.Ct. 499 , 92 L.Ed. 682 ]; Turney v. Ohio, 273 U.S. 510 [ 47 S.Ct. 437 , 71 L.Ed. 749 ]. ‘A fair trial in a fair tribunal is a basic requirement of due process.’ In re Murchison, 349 U.S. 133, 136 [ 75 S.Ct. 623, 625 , 99 L.Ed. 942 ]. In the ultimate analysis, only the jury can strip a man of his liberty or his life. In the language of Lord Coke, a juror must be as ‘indifferent as he stands unsworne.’ Co. Litt. 155b. His verdict must be based upon the evidence developed at the trial. Cf. Thompson v. City of Louisville, 362 U.S. 199 [ 80 S.Ct. 624 , 4 L.Ed.2d 654 ]. This is true, regardless of the heinousness of the crime charged, the apparent guilt of the offender or the station in life which he occupies. It was so written into our law as early as 1807 by Chief Justice Marshall in 1 Burr’s Trial 416 (1807). ‘The theory of the law is that a juror who has formed an opinion cannot be impartial.’ Reynolds v. United States, 98 U.S. 145, 155 [ 25 L.Ed. 244 ].”
In the same case, Mr. Justice Frankfurter, with his characteristic acumen, states:
186
“More than one student of society has expressed the view that not the least significant test of the quality of a civilization is its treatment of those charged with crime, particularly with offenses which arouse the passions of a community. One of the rightful boasts of Western civilization is that the State has the burden of establishing guilt solely on the basis of evidence produced in court and under circumstances assuring an accused all the safeguards of a fair procedure. These rudimentary conditions for determining guilt are inevitably wanting if the jury which is to sit in judgment on a fellow human being comes to its task with its mind ineradicably poisoned against him. How can fallible men and women reach a disinterested verdict based exclusively on what they heard in court when, before they entered the jury box, their minds were saturated by press and radio for months preceding by matter designed to establish the guilt of the accused. A conviction so secured obviously constitutes a denial of due process of law in its most rudimentary conception.”
In short, this Court holds that “Where one’s life [or liberty for life] is at stake —and accounting for the frailties of human nature — we can only say that in the light of the circumstances here the finding of impartiality does not meet constitutional standards.”
187
Petitioner Frank Brown never had a chance. The fountain of justice was poisoned before it began to flow.
188
V.
DENIAL OF STATE APPELLATE EEVIEW
Petitioner’s appeal to the Vermont Supreme Court, which granted him leave to appeal in forma pauperis from his conviction of arson causing death and from his sentence of life imprisonment,
*911
was dismissed for lack of jurisdiction in a 3 to 2 decision, Judge Holden in strong dissent.
189
The crux of this decision was that petitioner had failed to comply with the double filing requirement with respect to notices of appeal first enacted by the Vermont legislature in 1959.
190
Under these statutory provisions, petitioner was required, within thirty days from the date he was notified of the rendition of his judgment of conviction, to file a notice of appeal with “(1) the clerk of the court appealed to and (2) the clerk * * * of the tribunal appealed from * *
191
Petitioner’s notice of appeal coneededly was filed in time with the clerk of the court appealed to (the Vermont Supreme Court); but, according to the three judge majority of the Vermont Supreme Court, it was filed one •day late with the clerk of the court appealed from (the Windham County Court.)
192
The two judge minority of the Vermont Supreme Court found that “The essential fact that an appeal had been undertaken was brought home to ■each court concerned and to the prevailing party on the trial below,- — all within the time prescribed.”
193
The following is the chronology of events by which petitioner sought and was denied state appellate review of his conviction of a crime defined as first degree murder:
(1) November 5, 1959 the jury returned its verdict in the Windham County Court finding petitioner guilty of arson causing death and determining that his punishment should be life imprisonment
194
Petitioner was sentenced accordingly November 24,1959.
195
A judgment order dated November 24, 1959 was filed December 3, 1959,
196
on which date notification of the rendition of judgment was given by the county clerk to petitioner’s attorneys of record.
197
(2) December 2, 1959 petitioner’s counsel wrote to Chief Justice Hulburd of the Vermont Supreme Court enclosing a petition “submitted to you directly in accordance with our telephone conversation of Tuesday afternoon.”
198
This petition requested that petitioner be allowed to appeal in forma pauperis, that a transcript of the proceedings in the Windham County Court be furnished to petitioner at state expense and that counsel be assigned to represent petitioner on his appeal at state expense.
199
In his letter of December 2, 1959 to Chief Justice Hulburd, petitioner’s counsel further stated, “In the event that the Court should decide to grant the petition, I will be glad to prepare any order felt necessary. Our time for appeal expires on Thursday, December 24, 1959.
200
I hope that we will be notified of the decision of the- Court in time to take appropriate action.”
201
(3) December 15, 1959 the clerk of the Vermont Supreme Court wrote to petitioner’s counsel advising that he had been “directed by the Court to inform
*912
you that your petition to be assigned as counsel for the respondent in the above-entitled case in his appeal to the Supreme Court has been granted”; the clerk further informed petitioner’s counsel that “As to the payment of the transcript in the pursuance of your appeal, Chief Justice Hulburd wishes to inform you that he will seek to make some arrangements with the Attorney General as to that.”
202
(4) December 28, 1959 petitioner’s counsel wrote to the clez-k of the Wind-ham County Court (copies to the Attorney General, the court reporter, and Hon. Henry F. Black, petitioner’s co-counsel) stating, “Since the time for filing a notice of appeal under 12 V.S.A., Section 2383 is fast approaching in the above captioned matter, I want to make absolutely certain that all parties in interest understand the situation regarding the transcript.” After referring to and summarizing the letter of December 15, 1959 from the clerk of the Vermont Supreme Court, petitioner’s counsel went on to state, “In other words, I do wish to formally order the transcript in behalf of the appellant but can not furnish the check for the one-half estimate of the total cost as required by the court. I assume that Mr. Justice Hulburd has taken the matter up with the Attorney General and that some order or formal request will be made by that office for the transcript. If I am in erroi', I would appreciate being informed by the appropriate party.”
203
(5) With reference to the cost of the transcript, petitioner’s counsel earlier that month, December 5, 1959, had written to the court reporter and concluded this letter by stating, “I will be glad to send you a check for whatever this will amount to, and will personally guarantee your charges entirely separate from the order which we are expecting from the Supreme Court.”
204
(6) December 31, 1959 petitioner’s counsel mailed the original and three copies of petitionez-’s notice of appeal to the clerk of the Vermont Supreme Court in Montpelier under cover of a letter reading, “Enclosed please find original and three copies of the respondent’s Notice of Appeal in the above captioned matter brought under 12 V.S.A., Section 2382. The extra copies are for the Wind-ham County Clerk, Henry F. Black, Esq. and the Attorney General. I further enclose our check for ?5.00 to cover filing fee. If I am in error as to the amount, please do not hesitate to correct me.”
205
(7) December 31, 1959 was a Thursday; the following day, New Year’s Day, was a Friday.
206
Accordingly, the letter of December 31, 1959, from petitioner’s counsel to the clez'k of the Vermont Supreme Court enclosing the original and three copies of petitioner’s notice of appeal, did not come to the attention of the clerk of the Vermont Supreme Court until the following Monday, January 4, I960.
207
(8) January 4, 1960 the clerk of the Vermont Supreme Court wrote to petitioner’s counsel, “These papers on appeal should properly go to the Clez’k of the Supz*eme Court within and for the County of Windham, rather than Clez'k of the General Tez'm, who will make the necessary distribution, and I have also endorsed the entry fee over to him as he is responsible for that. George Daley [Clerk of the Windham County Couz't] will prepare the docket entries in the case and certify it to us at a later date.”
208
(9) January 5, 1960 petitioner’s counsel was in the Vermont Supreme Court at Montpelier, at which time the Clerk of the Supreme Court told him that on the previous day he had returned the notice of appeal and filing fee to the office
*913
of petitioner’s counsel in Brattleboro. Petitioner’s counsel thereupon immediately telephoned his office in Brattleboro and caused “all the papers in the case” to be handed to George Daley, who, by virtue of his office as county clerk for Wind-ham County, is clerk of the Supreme Court for Windham County.
209
(10) The same day, January 5, 1960, petitioner’s counsel wrote to Mr. Daley, “I have just talked to Mr. Peduzzi [Clerk of the Vermont Supreme Court] who interprets the new statute as requiring the filing of the appeal with the Clerk of the Supreme Court for Windham County, so that he has sent back our notice of appeal and check for retransmittal to you. I have talked to Mr. Debevoise and I do not believe any question is going to be raised as to late filing. I will be back in town in the morning if you wish to talk with me about it.”
210
(11) January 5, 1960 the Clerk of the Windham County Court issued its mittimus directing that petitioner be committed to the Vermont State Prison at Windsor for the rest of his natural life.
211
(12) January 6, 1960 the Sheriff executed the mittimus by committing petitioner to the state prison at Windsor and reading the mittimus to him.
212
(13) January 6, 1960 the Clerk of the Windham County Court wrote to the Clerk of the Vermont Supreme Court in Montpelier enclosing a certified copy of the docket entries; noting that “the Notice of Appeal was filed with me after the Mittimus had been delivered to the Sheriff, and, after the 30 days for taking an appeal had expired”; stating, “If we were still operating under the old Court Rules the Court could waive the Rule and permit the respondent to file late, but, appellate procedure now being statutory I do not know what authority the Court or a Judge would have in the matter. Mr. Burgess has paid the entry fee in the case so I think it a matter for the Supreme Court to decide rather than the Clerk”; and concluding by requesting the Clerk of the Vermont Supreme Court to notify him as to when the files in the case should be mailed to the Supreme Court.
213
(14) January 8, 1960 the Clerk of the Windham County Court wrote to the Clerk of the Vermont Supreme Court enclosing the files “as per your request” and noting that “The Sheriff handed me the mittimus, which he had served at the State Prison, about 10 minutes after I had forwarded the copy of the docket entries to you.”
214
(15) January 15, 1960 petitioner’s counsel wrote to the Clerk of the Wind-ham County Court (copy to the Attorney General), stating, “Please refer to my letter of 28 December 1959 in which I formally ordered the transcript in the above captioned matter. As a result of my conversation with you this morning, you will find enclosed herewith our check in the amount of $182.50, being one-half the estimated cost of the transcript as given to me by Mrs. Billie Jones, Court Reporter. I would appreciate any influence you may have to expedite the furnishing of this transcript because it is my understanding that the Supreme Court would like to hear the matter in March, if possible.”
215
(16) January 18,1960 the Clerk of the Windham County Court wrote to the Clerk of the Vermont Supreme Court, asking that a note be made on the docket of the filing of the request by petitioner’s counsel for the transcript, together with his check for $182.50, and that the check had been forwarded to the court report-02*
216
*914
(17) Upon motion of the Attorney General filed February 26, I960,
217
the Vermont Supreme Court dismissed petitioner’s appeal for lack of jurisdiction May 3, I960.
218
Petitioner’s motion for reargument, filed May 18, I960,
219
was denied by the Vermont Supreme Court May 27, I960.
220
(18) The 30 day period
221
within which petitioner’s notice of appeal was required to be filed
222
with the clerk of the court appealed to (the Vermont Supreme Court) and with the clerk of the court appealed from (the Windham County Court), expired January 2, 1960, extended to January 4, 1960 because the expiration date fell on a Saturday.
223
The Vermont Supreme Court held that petitioner’s notice of appeal was filed on time with the clerk of the court appealed to;
224
but held that his notice of appeal was filed one day late with the clerk of the court appealed from.
225
(19) May 4, 1960 petitioner filed in the Vermont Supreme Court a petition for a new trial supported by affidavits by each of his two attorneys, John S. Burgess, Esq. and Hon. Henry F. Black.
226
This petition was opposed by the Attorney General whose affidavit in opposition was filed May 24, I960.
227
Arguments were heard by the Vermont Supreme Court on the petition for a new trial May 27, I96 0.
228
September 6,1960 the Vermont Supreme Court dismissed the petition for a new trial, one judge dissenting.
229
Evaluation
Denial of state appellate review of petitioner’s conviction of arson causing death and his sentence of life imprisonment must be evaluated in the light of the earlier denial of a fair trial by a panel of indifferent jurors, in order to determine whether denial of state appellate review, under such circumstances and as applied to petitioner, was so unreasonable or so discriminatory as to constitute denial of due process or equal protection in violation of the Fourteenth Amendment. Accordingly, on the facts disclosed by this record, the Court evaluates the denial of state appellate review as follows:
(i) The crime of which petitioner was convicted and for which he was sentenced to life imprisonment is equivalent to the gravest crime under Vermont law — defined as murder in the first degree ;
230
as such, it is punishable by death or life imprisonment, as determined by the jury.
231
(ii) Appeals from convictions in capital cases are mandatory in some jurisdictions ;
232
indeed, the Vermont legislature at its 1961 session, in direct response to the decision of the Vermont Supreme Court dismissing the appeal in the instant case,
233
made appellate review mandatory in “any criminal case resulting in a sentence of death or life imprisonment” and further provided that in such a case “no notice of appeal shall be necessary.”
234
(iii) Moreover, at the same session of the Vermont legislature, also in direct re
*915
sponse to the decision of the Vermont Supreme Court dismissing the appeal in the instant case,
235
the double filing requirement with respect to notices -of appeal was eliminated; the notice of appeal is now required to be filed only with “the clerk * * * of the tribunal appealed from * * *.”
236
(iv) The statute pursuant to which petitioner’s appeal was dismissed for lack of jurisdiction, particularly the double filing requirement, was a new one, having been enacted by the Vermont legislature in 195 9
237
(v) The double filing requirement of Vermont appellate procedure, even during its short-lived existence, was unique. Forty-six states have a single filing requirement; in these states, the notice of appeal or its equivalent must be filed, depending on the applicable statute or rule of the state in question,
either
in the court from which the appeal is taken
or
in the court to which the appeal is
taken
— not
in both.
238
Two states require notice of appeal or its equivalent to be made in open court below, plus filing in the appellate court.
239
One state requires “filing notice of appeal with the court rendering * * * judgment * * * and * * * filing a copy thereof in the appellate court where leave to appeal must be obtained.”
240
(vi) The new Vermont appellate procedure, enacted in 1959, resulted in some confusion among members of the Vermont bar as to where the notice of appeal should be filed, to whom the filing fee
*916
should be paid and to whom copies of the notice of appeal should be sent.
241
(vii) The Vermont Supreme Court, prior to its decision dismissing petitioner’s appeal in the instant case, had not construed the double filing provision of the newly enacted statute. In fact, the only other decision by the Vermont Supreme Court construing this provision of the statute was in a case argued on the same day and decided on the same day as the instant ease.
242
(viii) Petitioner in the instant case clearly notified both courts (the Windham County Court and the Vermont Supreme Court), as well as the prevailing party in the trial court, of his intention to appeal — which is the prime purpose of a notice of appeal; he did so by taking these steps:
(a) November 24, 1959, the day he was sentenced in the Windham County Court, he informed that court, in the presence of the Deputy Attorney General and the clerk of that court, in a written statement read in open court, that “ * * I will appeal * * *.”
243
(b) By petition dated December 2, 1959 (accompanied by a letter to Chief Justice Hulburd), petitioner’s counsel requested the Vermont Supreme Court that petitioner be allowed to appeal in forma pauperis, that a transcript of the proceedings in the Windham County Court be furnished petitioner at state expense and that counsel be assigned to represent petitioner on his appeal at state expense.
244
(c) Petitioner’s counsel took steps to order the transcript by writing to the court reporter on December 5, 1959 personally guaranteeing the charges
245
and by writing to the clerk of the Windham County Court on December 28,1959 (copies to the Attorney General, the court reporter and petitioner’s co-counsel) formally ordering the transcript and advising that he assumed Chief Justice Hulburd had taken up with the Attorney General the matter of the transcript and that “some order or formal request will be made by that office for the transcript.”
246
(ix) The Vermont Supreme Court on December 15, 1959 took official action in recognition of petitioner’s notification of intention, to appeal: it allowed him to appeal in forma pauperis; it assigned counsel to represent him on such appeal; and it informed him that arrangements would be made with the Attorney General to furnish him with a transcript of proceedings in the Windham County Court at state expense.
247
(x) The clerk of the Windham County Court (who also is the clerk of the Vermont Supreme Court for Windham County) was notified, by the letter of Decem
*917
ber 28, 1959 from petitioner’s counsel (a copy of which was sent to the Attorney General), of the action by the Vermont Supreme Court on December 15, 1959 in granting petitioner’s motion for leave to appeal and in implementing such leave to appeal by assigning counsel and by arranging with the Attorney General for the furnishing of the transcript at state expense.
248
Such notice to the Windham County Clerk was filed when it was mailed.
249
(xi) The difficulties encountered by petitioner’s counsel in obtaining authorization from the Vermont Supreme Court and appropriate action by the Attorney General to order the transcript at state expense, appear to have accounted, at least in part, for the delay in filing petioner’s formal notice of appeal.
250
(xii) The record does not disclose what action was taken either by the Vermont Supreme Court or by the Attorney General in response to petitioner’s requests that he be furnished with a transcript of the proceedings in the Windham County Court at state expense; nor, assuming the transcript was furnished at state expense, does the record disclose upon what date it was furnished or when petitioner or his counsel were notified that it would be furnished as requested.
(xiii) While there is no constitutional right of appeal in Vermont,
251
Statutes creating and regulating the right of appeal are remedial; as such, under Vermont law they are liberally construed in order to further, not restrict, the right of review.
252
(xiv) Rule 73 of the Federal Rules of Civil Procedure is said to be the “root and stock”
253
of the new appellate procedure enacted by the Vermont legislature in 1959;
254
its “basic requirements are lifted verbatim from Rule 73”,
255
with two significant variations:
(a) the Vermont statute (unlike Rule 73) requires that notice of appeal be given to the court to which the appeal is taken, as well as to the court from which the appeal is taken;
(b) the Vermont statute (unlike. Rule 73) provides that mailing of the notice of appeal to the named persons is equivalent to filing.
(xv) It is a settled doctrine of statutory interpretation in Vermont that when a statute is adopted by that state, based on a statute of another jurisdiction, the judicial decisions construing the forerunner of the Vermont statute must be given effect; and the language of the Vermont statute, so adopted, is presumed to be used in the same sense given to it by prior adjudications of the jurisdiction of origin, absent some other sense impressed upon it by the derivative enactment.
256
Thus, construction of Rule
*918
73 by the federal courts, prior to enactment by Vermont of its new appellate procedure in 1959, is deemed to have been adopted by Vermont.
(xvi) When the Vermont legislature enacted its new appellate procedure based on Rule 73, decisions of the federal courts construing that rule had long established that a timely petition for leave to appeal in forma pauperis constituted substantial compliance with the notice of appeal requirement of Rule 73.
257
“The rules have for their primary purpose the securing of speedy and inexpensive justice in a uniform and well ordered manner; they were not adopted to set traps and pitfalls by way of technicalities for unwary litigants [citation]. Therefore, substantial compliance with the rules is sufficient, and appellant’s petition for leave to appeal in
forma pauperis
adequately met the requirements of Rule 73(a).”
258
And “ * * * [T]he notice contained in the motion for leave to appeal in forma pauperis was sufficient, as the rules should be liberally construed and review should not be denied on mere technicalities where this can be avoided.”
259
(xvii) In the instant case, petitioner’s application of December 2, 1959 to the Vermont Supreme Court for leave to appeal in forma pauperis;
260
the action of the Vermont Supreme Court in granting that application on December 15, 1959;
261
and petitioner’s notification to the clerk of the Windham County Court on December 28, 1959 of the action of the Vermont Supreme Court in granting leave to appeal
262
— all well within the thirty day appeal period — constituted substantial compliance with the notice of appeal requirement of the Vermont statute.
263
This not only is in accord with the well settled construction by the federal courts of the notice of appeal requirement of Rule 73
264
— the “root and stock” of the Vermont statute
265
— which was adopted by the Vermont legislature when it enacted its new appellate procedure in 1959;
266
it also squares with Vermont law that the function of a notice of appeal, the form of which is not essential to jurisdiction, is to inform the parties and the courts involved that the controversy has not ended so that they may respond accordingly.
267
Upon the facts disclosed by this record, the Court holds that denial of state appellate review of petitioner’s conviction of arson causing death and his sentence of life imprisonment — following denial of a fair trial by a panel of indifferent jurors — was so unreasonable and so discriminatory as to constitute denial of due process and equal protection in violation of the Fourteenth Amendment.
268
*919
While a state is not required by the Constitution of the United States to provide appellate courts or a right to appellate review at all,
269
once a state establishes a system of appellate review— particularly in criminal cases — then “ * * * at all stages of the proceedings the Due Process and Equal Protection Clauses protect persons like [petitioner] from invidious discriminations.”
270
As stated by Mr. Justice Frankfurter:
271
“But neither the fact that a State may deny the right of appeal altogether nor the right of a State to make an appropriate classification, based on differences in crimes and their punishment, nor the right of a State to lay down conditions it deems appropriate for criminal appeals, sanctions differentiations by a State that have no relation to a rational policy of criminal appeal or authorizes the imposition of conditions that offend the deepest presuppositions of our society.”
Denial of due process below in the instant case by failing to accord petitioner a fair trial by a panel of indifferent jurors,
272
sharpens the deprivation of due process in the denial of appellate review. Chief Justice Hughes put it this way:
273
“As to the due process clause of the Fourteenth Amendment, it is sufficient to say that, as frequently determined by this court, the right of appeal is not essential to due process,
provided that due process has already been accorded in the tribunal of first instance.
McKane v. Durston, 153 U.S. 684, 687 [ 14 S. Ct. 913 , 38 L.Ed. 867 ]; Pittsburgh, etc. Railway Co. v. Backus, 154 U.S. 421, 427 [ 14 S.Ct. 1114 , 38 L.Ed. 1031 ]; Reetz v. Michigan, 188 U.S. 505, 508 [ 23 S.Ct. 390 , 47 L.Ed. 563 ]; Rogers v. Peck, 199 U.S. 425, 435 [ 26 S.Ct. 87 , 50 L.Ed. 256 ]; Standard Oil Company of Indiana v. State of Missouri, 224 U.S. 270, 286 [ 32 S.Ct. 406 , 56 L.Ed. 760 ].” (Emphasis added)
The same principle, on broader grounds, has been expressed by Mr. Justice Black:
274
*920
“This denial of state appellate review plus the [denial of due process in the trial court] thus left uncorrected should be enough to make one of those ‘extraordinary situations’ which the Court says authorizes federal courts to protect the constitutional rights of state prisoners. Cf. Frisbie v. Collins, 342 U.S. 519, 520-521 [ 72 S.Ct. 509, 510-511 , 96 L.Ed. 541 ].”
In holding that denial of state appellate review, under the circumstances disclosed by this record and as applied to this petitioner, constituted a denial of due process and equal protection in violation of the Fourteenth Amendment, the Court is mindful that it is treading in “a sensitive area in our federated system.”
275
Neither the sensitivity of the area nor the difficulty of “application of constitutional principles to the facts as found”,
276
however, would justify even a scintilla of vacillation on the part of the Court, confronted with this glaring record of deprivation of federal constitutional rights, in acting pursuant to the clear command of Congress and the forthright mandate of the Supreme Court to federal district judges sitting in habe-as corpus proceedings.
Mr. Justice Frankfurter, speaking for the United States Supreme Court,
277
has defined the jurisdiction and appropriate function of the district courts in dealing with precisely the type of problems which confront the Court in the instant case :
278
“The complexities of our federalism and the workings of a scheme of government involving the interplay of two governments, one of which is subject to limitations enforceable
*921
by the other, are not to be escaped by simple, rigid rules which, by avoiding some abuses, generate others.
“For surely it is an abuse to deal too casually and too lightly with rights guaranteed by the Federal Constitution, even though they involve limitations upon State power and may be invoiced by those morally unworthy. Under the guise of fashioning a procedural rule, we are not justified in wiping out the practical efficacy of a jurisdiction conferred by Congress on the District Courts. Rules which in effect treat all these cases indiscriminately as frivolous do not fall far short of abolishing this head of jurisdiction.”
Congress — not the courts — made the determination that the federal courts, rather than the state courts, should be the ultimate arbiters as to the enforcement of federal constitutional rights in state criminal proceedings, as Mr. Justice Frankfurter points out:
279
“Congress could have left the enforcement of federal constitutional rights governing the administration of criminal justice in the States exclusively to the State courts. These tribunals are under the same duty as the federal courts to respect rights under the United States Constitution.
***** *
“It is not for us to determine whether this power should have been vested in the federal courts. As Mr. Justice Bradley, with his usual acuteness, commented not long after the passage of that Act, ‘although it may appear unseemly that a prisoner, after conviction in a state court, should be set at liberty by a single judge on
habeas corpus,
there seems to be no escape from the law.’ Ex parte Bridges [4 Fed.Cas. 98, No. 1,862], 2 Woods (5th Cir.) 428, 432.
***** *
“It is for this Court to give fair effect to the habeas corpus jurisdiction as enacted by Congress. By giving the federal courts that jurisdiction, Congress has imbedded into federal legislation the historic function of habeas corpus adapted to reaching an enlarged area of claims. See, e. g., Mooney v. Holohan, 294 U.S. 103 [ 55 S.Ct. 340 , 79 L.Ed. 791 ]; Johnson v. Zerbst, 304 U.S. 458 [ 58 S.Ct. 1019 , 82 L. Ed. 1461 ].”
The extent to which state court determinations of federal constitutional claims are to be given consideration by a federal court in a habeas corpus proceeding, is just this:
280
“In exercising the power thus bestowed, the District Judge must take due account of the proceedings that are challenged by the application for a writ. All that has gone before is not to be ignored as irrelevant.
But the prior State determination of a claim under the United States Constitution cannot foreclose consideration of such a claim, else the State court would have the final say which the Congress, by the Act of 1867, provided it should not have.
Cf. Ex parte Royall, 117 U.S. 241, 248-250 [ 6 S.Ct. 734, 738-739 , 29 L.Ed. 868 ]. A State determination may help to define the claim urged in the application for the writ and may bear on the seriousness of the claim.” (Emphasis added)
The critical point in the state-federal distribution of responsibility in this area, as Mr. Justice Frankfurter emphasizes, is that state court adjudications of questions of law, to the extent they affect federal constitutional rights, are not binding on a federal court :
281
“On the other hand,
State adjudication of questions of law cannot, under the habeas corpus statute, be accepted as binding. It is precisely
*922
these questions that the federal judge is commanded to decide.
* *• * * * ■*
“Although there is no need for the federal judge, if he could, to shut his eyes to the State consideration of such issues,
no binding weight is to be attached to the State determination.
The congressional requirement is greater. The State court cannot have the last say when it, though on fair consideration and what procedurally may be deemed fairness, may have misconceived a federal constitutional right.” (Emphasis added)
Nevertheless, a federal district court has discretion to give appropriate weight to relevant state court proceedings, provided it does not abdicate the primary duty imposed upon it to make an independent determination of federal constitutional claims raised by a state prisoner, regardless of state court adjudication of such claims:
282
“These standards, addressed as they are to the practical situation facing the District Judge, recognize the discretion of judges to give weight to whatever may be relevant in the State proceedings, and yet preserve the full implication of the requirement of Congress that the District Judge decide constitutional questions presented by a State prisoner even after his claims have been carefully considered by the State courts. Congress has the power to distribute among the courts of the States and of the United States jurisdiction to determine federal claims. It has seen fit to give this Court power to review errors of federal law in State determinations, and in addition to give to the lower federal courts power to inquire into federal claims, by way of habeas corpus. Such power is in the spirit of our inherited law. It accords with, and is thoroughly regardful of, ‘the liberty of the subject,’ from which flows the right in England to go from judge to judge, any one of whose decisions to discharge the prisoner is final. Our rule is not so extreme as in England; § 2244 does place some limits on repeating applications to the Federal Courts. But it would be in disregard of what Congress has expressly required to deny State prisoners access to the federal courts.”
Responding to the frequently expressed criticism that the habeas corpus jurisdiction of a federal district court permits, in effect, the overruling of the highest court of a state by a single federal district judge, Mr. Justice Frankfurter states:
283
“Insofar as this jurisdiction enables federal district courts to entertain claims that State Supreme Courts have denied rights guaranteed by the United States Constitution,
it is not a case of a lower court sitting in judgment on a higher court. It is merely one aspect of respecting the Supremacy Clause of the Constitution whereby federal law is higher than State law.
It is for the Congress to designate the member in the hierarchy of the federal judiciary to express the higher law. The fact that Congress has authorized district courts to be the organ of the higher law rather than a Court of Appeals, or exclusively this Court, does not mean that it allows a lower court to overrule a higher court. It merely expresses the choice of Congress how the superior authority of federal law should be asserted.” (Emphasis added)
Finally, the historic function of the writ of habeas corpus — in just such a case as the instant case — as the basic safeguard of freedom in the Anglo-American world, has been articulately summarized by Mr. Justice Frankfurter, speak
*923
ing for the United States Supreme Court :
284
“The uniqueness of habeas corpus in the procedural armory of our law cannot be too often emphasized. It differs from all other remedies in that it is available to bring into question the legality of a person’s restraint and to require justification for such detention. Of course this does not mean that prison doors may readily be opened. It does mean that explanation may be exacted why they should remain closed. It is not the boasting of empty rhetoric that has treated the writ of habeas corpus as the basic safeguard of freedom in the Anglo-American world. ‘The great writ of
habeas corpus
has been for centuries esteemed the best and only sufficient defence of personal freedom.’ Mr. Chief Justice Chase, writing for the Court, in Ex parte Yer-ger, 8 Wall. 85, 95 [ 19 L.Ed. 332 ]. Its history and function in our legal system and the unavailability of the writ in totalitarian societies are naturally enough regarded as one of the decisively differentiating factors between our democracy and totalitarian governments.
“The significance of the writ for the moral health of our kind of society has been amply attested by all the great commentators, historians and jurists, on our institutions. It has appropriately been characterized by Hallam as ‘the principal bulwark of English liberty.’ ”
Here the State of Vermont, though not required to do so by its own Constitution nor that of the United States, nevertheless has provided appellate review in criminal cases for many years. Following denial of a fair trial by a panel of jurors who were neither impartial nor indifferent, petitioner sought to avail himself of such an appeal from his conviction of first degree murder and his sentence of life imprisonment. The Vermont Supreme Court entertained and granted his application for leave to appeal in forma pauperis, for assignment of counsel at state expense and for furnishing the trial transcript at state expense. His counsel brought home to each court concerned, as well as to the prevailing party below, the essential fact that an appeal had been undertaken and did so well within the prescribed time. The Vermont Supreme Court, however, construing for the first time a double pronged filing requirement — new to Vermont, confusing to its bar and unique among states of the Union — held, three to two, that petitioner’s notice of appeal mailed to the clerk of the Supreme Court four days before due, enclosing a copy for the clerk of the County Court (who also was clerk of the Supreme Court for Windham County), though on time in the Supreme Court, was filed one day late in the County Court. The Vermont Supreme Court, “well aware of the seriousness of the situation and all its attendant consequences,”
285
sought to soften its blow in dismissing the appeal by noting that “this Court has relieved counsel of the consequences of a late appeal by granting a petition for a new trial”
286
— “where the right of appeal has been lost by reason of circumstances other than those arising from the fault of the petitioner”
287
— but observed, “A petition for a new trial, however, is not before us * * *.”
288
On the following day a petition for a new trial was filed; it was argued immediately after denial of petitioner’s motion for reargument of the State’s motion to dismiss the appeal- — on the same day. Three months later the petition for a new trial was dismissed, one judge dissenting.
Through no fault of petitioner, he finds himself in this position as baffling as it is unique: despite acts and declarations clearly manifesting not only an intent to appeal but positive, timely action imple-
*924
meriting that intent, he has been stripped of his appeal; he is the only person to whom Vermont appellate procedure has been so applied; the statutory provision pursuant to which he was stripped of his appeal had never been so applied to anyone before him and never again will be so applied; the State of Vermont not only held out to him a right of criminal appeal generally, but its highest court specifically granted him leave to appeal in forma pauperis and later, after dismissing the appeal it had granted him, virtually invited him to file a petition for a new trial to relieve him of such loss of appellate review; and in the end the high promise of state appellate review was for naught.
“The State cannot keep the word of promise to the ear of those illegally convicted and bréale it to their hope.”
289
VI.
EXHAUSTION OF STATE REMEDIES
The Court holds that petitioner has exhausted state remedies with respect to the two federal constitutional claims raised by petitioner and ruled upon by the Court, namely, denial of a fair trial and denial of state appellate review.
290
Following his conviction in the Wind-ham County Court, petitioner brought two proceedings in the Vermont Supreme Court. The first, a direct appeal from the judgment of conviction, was dismissed for lack of jurisdiction May 3, I960.
291
The Vermont Supreme Court, in dismissing the appeal, decided adversely to petitioner the constitutional claim involved :
292
“Although by failing to take advantage of the method prescribed for appeal, the respondent has left this Court without jurisdiction to consider his case,
he has not been deprived of due process.”
(Emphasis added)
The second proceeding in the Vermont Supreme Court, following its dismissal of the appeal,
293
was a petition for a new trial which was denied September 6, I9 60.
294
Among the claims urged by pe
*925
titioner in support of his petition for a new trial and decided adversely to petitioner by the Vermont Supreme Court, was, in the language of that court, the following :
295
“The first ground set forth by the petitioner is that he was prejudiced by a trial before a Windham County jury and will continue to be so prejudiced, and that
he received, an unfair and partial trial as a result.”
(Emphasis added)
The Vermont Supreme Court noted that among the allegations relied on by petitioner in support of his claim that he was denied a fair trial was the adverse newspaper publicity prior to the trial; that petitioner had urged his claim of prejudice in the trial court in a motion for change of venue before trial, which was denied; and that petitioner had reasserted his claim of prejudice in the trial court in a motion after verdict for a new trial and for judgment in his favor notwithstanding the verdict, which was denied.
296
December 5, 1960 petitioner filed in the United States Supreme Court a petition for a writ of certiorari seeking direct review of the judgments of the Vermont Supreme Court entered May 3, 1960 and September 6, I960.
297
Among the grounds urged for the granting of the petition for certiorari were the denial of a fair trial and the denial of state appellate review.
298
February 20, 1961 the petition for certiorari was denied.
299
Congress prohibits a federal district court from granting an application for a writ of habeas corpus by a person in custody pursuant to a judgment of a state court unless the applicant has exhausted the remedies available in the courts of the state.
300
Petitioner in the instant case has fully complied with the exhaustion of state remedies requirement as enunciated by the United States Supreme Court in Brown v. Allen :
301
“Failure to exhaust an available State remedy is an obvious ground for denying the application. An attempt must have been made in the State court to present the claim now asserted in the District Court, in compliance with § 2254 of the Judicial Code [ 28 U.S.C.A. § 2254 ]. Section 2254 does not, however, re
*926
quire repeated attempts to invoke the same remedy nor more than one attempt where there are alternative remedies. Further, Darr v. Burford [ 339 U.S. 200, 214-217 , 70 S. Ct. 587 , 94 L.Ed. 761 ] requires ‘ordinarily’ an application for certiorari to the United States Supreme Court from the State’s denial of relief. Cf. Frisbie v. Collins, 342 U.S. 519, 520-522 [ 72 S.Ct. 509, 510-511 , 96 L.Ed. 541 ].”
Moreover, petitioner’s exhaustion of state remedies in the instant case is squarely in accord with the conclusion reached by the Supreme Court in Brown v. Allen:
302
“We conclude that all required procedure for state review of the convictions had been exhausted by petitioners in each case before they sought the writs of habeas corpus in the federal courts. In each case petitions for certiorari to this Court for direct review of the state judgments rendered by the highest court of the state in the face of the same federal issues now presented by ha-beas corpus had been denied.
“It is not necessary in such circumstances for the prisoner to ask the state for collateral relief, based on the same evidence and issues already decided by direct review with another petition for certiorari directed to this Court”
(Emphasis added)
Failure of petitioner to have availed himself of state habeas corpus procedure in Vermont to challenge the cause of imprisonment
303
does not, under the circumstances here present, bar him from seeking federal habeas corpus relief.
304
This is particularly so in Vermont where habeas corpus is available only to challenge jurisdiction of the court over the parties or the subject matter; it may not be employed to raise due process or other federal constitutional questions.
305
Exhaustion of state remedies in the instant case follows closely the pattern approved by the United States Supreme Court in Irvin v. Dowd.
306
In that case, appellant urged upon the Indiana Supreme Court on his appeal from a conviction for murder, certain constitutional claims which had been presented to the trial court in his motion for a new trial, which motion was denied.
307
The Indiana Supreme Court held that the trial court had properly denied the motion for a new trial on the ground that appellant was an escapee when the motion was filed;
308
but the Indiana Supreme Court nevertheless proceeded to review the con
*927
stitutional claims of appellant in view of the gravity of the crime of which he stood convicted
309
and stated:
310
“Our decision on the point under examination makes it unnecessary for us to consider the other contentions of the appellant; however, because of the finality of the sentence in the case we have reviewed the evidence to satisfy ourselves that there is no miscarriage of justice in this case.
******
“It does not appear from the record and argument had, that the appellant was denied due process of law under the Fourteenth Amendment * *
After reviewing the scope of the decision by the Indiana Supreme Court upon the constitutional questions involved, the United States Supreme Court held:
311
“Rather the court proceeded to determine the merits ‘because of the finality of the sentence’ and ‘to satisfy ourselves that there is no miscarriage of justice.’ In this way, in our view, the State Supreme Court discharged the obligation which rests upon ‘the state courts, equally with the courts of the Union, *■ * * to guard, enforce, and protect every right granted or secured by the constitution of the United States * Robb v. Connolly, 111 U.S. 624, 637 [ 4 S.Ct. 544, 551 , 28 L.Ed. 542 ]. We thus believe that the opinion is to be read as rested upon the State Supreme Court’s considered conclusion that the conviction resulting in the death sentence was not obtained in disregard of the protections secured to the petitioner by the Constitution of the United States.
“In this posture, 28 U.S.C. § 2254 does not bar the petitioner’s resort to federal habeas corpus.
******
“We therefore hold that the case is governed by the principle that the doctrine of exhaustion of state remedies embodied in 28 U.S.C. § 2254 does not bar resort to federal habeas corpus if the petitioner has obtained a decision on his constitutional claims from the highest court of the State, even though, as here, that court could have based its decision on another ground.”
In the instant ease, as in Irvin v. Dowd, this Court reads the opinion of the Vermont Supreme Court
312
“as rested upon the State Supreme Court’s considered conclusion that the conviction resulting in the [life imprisonment] sentence was not obtained in disregard of the protections secured to the petitioner by the Constitution of the United States.”
313
Finally, in determining whether petitioner has exhausted his state remedies with respect to the federal constitutional claims raised by him and ruled upon by this Court, the practical question may well be asked: “What more could petitioner have done than he already has done to have given the Vermont state courts first crack at
*928
deciding the constitutional questions here involved?” In the opinion of this Court, there is nothing more that petitioner effectively could have done. And of course the law does not require, even in complying with the exacting requirements of federal habeas corpus jurisdiction, that a state procedure be invoked the objective of which is known to be futile before it is invoked.
314
VII.
RESPONDENT’S MOTION TO DISQUALIFY FEDERAL JUDGE
At the beginning of the fourth session of the hearing in this habeas corpus proceeding, on August 16, 1961, counsel for respondent made an oral motion “that the Court declare the proceedings heretofore had in the last two days, null and void, and ask that he disqualify himself from further consideration of the Petition of Frank Brown for a Writ of Habeas Corpus.”
315
The basis of the motion was said to be that “statements in the record indicate a predilection on the part of the Court towards one side of this case, and feel further, that the Court has been acting in an advocate’s capacity and not as a judge.”
316
After hearing argument by counsel for respondent in support of his oral motion, the Court denied the motion but with leave to respondent “to file a formal motion of disqualification, supported by affidavit or affidavits, if it is so advised; the Court will reconsider the motion in the light of such formal motion and affidavits.”
317
On August 30, 1961 counsel for respondent filed a written motion,
not supported, by affidavits,
requesting the undersigned “To disqualify himself from further action herein on the grounds of his prejudgment of the issues and his advocacy of the cause of the petitioner and, therefore, his bias and prejudice in this case against the respondent * * ” and further requesting the undersigned “To declare null and void the proceedings heretofore had on the petition. * * ”
318
The grounds of the written motion were stated to be “all as set forth in the oral motion of respondent and as appears in the record of the hearing held in Brat-tleboro on August 14, 15 and 16, 1961.”
319
*929
On September 12, 1961, after hearing argument by counsel for both sides on the written motion, the Court ruled as follows :
320
“The Court denies the motion, and adheres to the ruling made at the time the motion was first made, as reflected on page 211 of the record, and continues to grant leave to the respondent if at any time in the proceeding he wishes to renew the motion in accordance with the manner suggested by the Court on page 211. The Court will be glad to continue to hear the respondent in support of such motion.”
Failure of respondent to file an affidavit in support of the motion to disqualify and failure of respondent’s counsel to file a certificate that the motion was made in good faith, required denial of the motion for non-compliance with the statute.
321
It is “well established that the statute is to be given the utmost of strict construction in order to safeguard the judiciary from frivolous attacks upon its dignity and integrity/»
322
Aside from the failure of respondent and his counsel to comply with the statutory provisions regarding timeliness, a supporting affidavit and a certificate of good faith, the gravamen of respondent’s complaint was that the Court asked questions and insisted upon searching the record.
323
At least since the days of Socrates, asking questions has been recognized as a method of ascertaining truth.
324
Moreover, “the object of habeas corpus is to
search records
to pre
*930
vent illegal imprisonments.”
325
(Emphasis added) And “it is never too late for courts in habeas corpus proceedings to look straight through procedural screens in order to prevent forfeiture of life or liberty in flagrant defiance of the Constitution.”
326
Even if respondent had set forth his grounds of alleged bias or prejudice in an affidavit as required by the statute, they would have been insufficient as a matter of law; for “[t]he conduct and rulings of the trial judge in the case itself provide no basis for an affidavit of bias or prejudice.”
327
The United States Supreme Court has held
328
that the statute authorizing the filing of an affidavit of bias or prejudice “was never intended to enable a discontented litigant to oust a judge because of adverse rulings made, for such rulings are reviewable otherwise * * *
»
329
It is not mere bias alone but
personal bias
which is the statutory ground for disqualification of a federal judge.
330
Judge Frank’s classic commentary on bias or prejudice in judicial officers
331
is worthy of note in the light of respondent’s claims in the instant case.
*931
This Court fully recognizes that “The participation of a district court through habeas corpus proceedings in determining whether state prisoners have been granted a fair trial is a sensitive area in our federated system.”
332
Such participation by a district judge is not made easier when challenged by a motion to disqualify because of alleged bias and prejudice. The judge’s duty when thus challenged, however, has been succinctly stated by Judge Smith in denying a motion to disqualify him as a district judge in a habeas corpus proceeding involving the legality of the detention of a state prisoner:
333
“Questions posed by those cases brought to test the constitutionality of state court rulings are not easy. Neither their difficulty nor the sort of attack made in the instant affidavit, however, would justify transferring the burden to another judge without the fulfillment of the statutory requirements, for it is the duty of the judge to act if the motion is based on insufficient grounds.”
Here the motion not only was based on insufficient grounds; it was made and reasserted in plain disregard of the statute, despite the judge’s repeated suggestions to counsel that he comply with the statute. Accordingly, it was the duty of the judge to act and he has.
vm.
OTHER QUESTIONS RAISED BUT NOT RULED ON BY THIS COURT
Petitioner has sought to raise in this proceeding, in addition to the questions on which the Court has ruled, certain federal constitutional questions upon which the Court has not ruled,
334
based on the following claims:
335
(1) Systematic exclusion of Jews from the panel of veniremen from which the petit jury was drawn in the Wind-ham County Court.
(2) Denial of a new trial in view of the conflict in verdicts returned by (a) the jury in the criminal case in the Windham County Court which convicted petitioner of arson causing death and (b) the jury in the subsequent civil
*932
case brought in the United States District Court to collect fire insurance which by special verdict found the fire .was not of incendiary origin.
(3) Denial of a new trial in view of newly discovered evidence of a technical nature, i. e. testimony of two expert witnesses, the claim being that such evidence would be sufficient to change the result of the trial in the criminal case and in fact did lead to a different result in the subsequent civil case in the federal court.
(4) Denial of a fair trial in view of the commission of such errors as:
(a) Admission of incompetent and prejudicial expert testimony on the ultimate question to be decided by the jury, i. e. whether arson was committed.
(b) Withholding from petitioner the results of lie detector tests voluntarily taken by him.
(c) Denial of a motion for a direc-ed verdict at the close of the State’s case by a one-to-one vote of the members of the trial court, i. e. the presiding judge and the “assistant judge.”
(d) Improper argument to the jury by the prosecutor who expressed his personal opinion as to the guilt of petitioner.
(e) Erroneous charge to the jury by the trial court on questions of lack of motive, presumption of innocence and failure of petitioner to take witness stand.
The Court has not ruled on the federal constitutional questions which petitioner has sought to raise on the basis of the foregoing claims, for one or more of the following reasons:
(i) No substantial federal constitutional question is presented by the claim as stated; or
(ii) The record does not permit the Court to make adequate findings of fact on the question presented; or
(iii) Petitioner has not exhausted his state remedies with respect to the question presented.
Moreover, since the Court has ruled that petitioner must be discharged unless the State of Vermont within a reasonable time corrects the defects which render discharge necessary, a ruling by the Court on the other federal constitutional questions sought to be raised by petitioner is unnecessary. Presumably, if petitioner is granted a new trial in lieu of immediate discharge, the State of Vermont will have adequate opportunity to cure any defects claimed by petitioner to constitute deprivation of his federal constitutional rights, in addition to those defects which this Court has ruled on the present record render discharge necessary.
336
CONCLUSIONS
Based on the foregoing findings of fact and evaluations of the facts as found, the Court reaches the following conclusions of law:
(1) The Court has jurisdiction over the parties and the subject matter.
(2) Petitioner, not having been accorded a fair trial by a panel of impartial, indifferent jurors, was denied due process in violation of the Fourteenth Amendment.
(3) Petitioner, not having been granted state appellate review of a conviction equivalent to first degree murder which resulted in the imposition of a sentence of life imprisonment, following failure to accord a fair trial, was denied due process and equal protection in violation of the Fourteenth Amendment.
(4) Petitioner has exhausted state remedies with respect to the two federal constitutional questions here raised and ruled upon by this Court, namely, denial of a fair trial and denial of state appellate review.
(5) Respondent’s motion to disqualify the federal judge and to declare null and void the proceedings on the petition for habeas corpus, having been based on insufficient grounds as a matter of law and having been made and reasserted in disregard of the statute, required de
*933
nial and left unimpaired the duty of the federal judge to act on the petition.
(6) The Judgment Order entered in the Windham County Court in the case of State of Vermont v. Frank Brown, Docket No. 9460, dated November 24, 1959 and filed December 3, 1959, adjudging petitioner guilty of arson causing death and sentencing him to imprisonment at hard labor in the state prison for life, is void and should be set aside.
(7) The Mittimus To State Prison, issued January 5, 1960 by the Windham County Court in said case, committing petitioner to the state prison at Windsor for the rest of his natural life, is void and should be set aside.
(8) Petitioner is entitled to be discharged from detention pursuant to said void Judgment Order and said void Mittimus To State Prison, subject, however, to the right of the State of Vermont to take petitioner promptly before the court where said judgment was rendered and with all deliberate speed to correct, if susceptible of correction, the defects which render discharge necessary, failing which petitioner should be discharged forthwith.
Congress has given the district courts power, in a habeas corpus proceeding, to “dispose of the matter as law and justice require.”
337
In ordering that petitioner’s discharge be delayed for a reasonable period of time to enable the State of Vermont to correct the defects which render discharge necessary, the Court does not imply that such defects are susceptible of correction. That is for the State of Vermont to determine.
Under the broad discretion given to this Court to determine the appropriate disposition of this matter, the record before the Court undoubtedly would justify exercising discretion to order an unconditional discharge. This is particularly so in view of the Court’s finding that the denial of a fair trial was due in large measure to the saturation coverage of the community before the trial with stories about the fire, petitioner’s complicity in the alleged crime and the State’s investigation of the crime, featuring its public disclosure of petitioner’s alleged criminal record. Subsequent to the publicity which constitutes the basis of the Court’s finding (through the empanelling of the jury), there of course has been further publicity concerning later proceedings, including: the trial of the arson case in the Windham County Court; the motion in that court for judgment notwithstanding the verdict and for a new trial; the imposition of sentence in that court; the proceedings in the Vermont Supreme Court on the motion to dismiss the appeal, the reargument of that motion and the petition for a new trial; the petition to the United States Supreme Court for a writ of certiorari; the trial in the United States District Court at Burlington of the civil case involving the same fire; and the habeas corpus proceedings in this Court. In short, the case has become a cause celebre in Vermont. The difficulties in empanelling an impartial jury originally, necessarily are compounded by the subsequent publicity stemming largely from the justifiable efforts of petitioner and his counsel to obtain correction of the miscarriage of justice at the original trial. And once the damage has been done, it is at best doubtful that restoration of fundamental constitutional rights can be accomplished “by means of expedients such as changing the venue of a trial, directing jurors to pay no attention to what they have read, heard or seen, putting a defendant to the agony of a retrial when the poison has done its work.”
338
As Mr. Justice Harlan has tersely put it,
339
“The proponent before the Court is not the petitioner but the Constitution of the United States.” And aside from the denial of federal constitu
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tional rights which require issuance of a writ of habeas corpus here, resort to the writ in this case is also necessary to prevent a complete miscarriage of justice, in the classic language of Judge Learned Hand:
340
“We can find no more definite rule than that the writ is available, not only to determine points of jurisdiction, stricti juris, and constitutional questions;
but whenever else resort to it is necessary to prevent a complete miscarriage of justice.”
(Emphasis added)
In allowing the State of Vermont an opportunity to correct the miscarriage of justice disclosed by the record in this case, the Court believes it is acting “as law and justice require.”
341
But there is another reason. “Without blinking the fact that the history of this case presents a sorry chapter in the annals of * * * the administration of criminal justice”
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in Vermont, the Court does not have the slightest doubt as to the ability and the desire of the State, given the opportunity, to expunge the blemish of this case from its escutcheon. Surely Vermont “has no interest in maintaining an unconstitutional conviction and every interest in preserving the tvrit of habeas corpus to nullify them when they occur.”
343
Depriving a man of basic constitutional rights is offensive, not only to federal law and to the Constitution of the United States: it offends the people of Vermont.
The State of Vermont need yield to no state of the Union in its dedication to the fundamental rights preserved by the Constitution of the United States. For after all, liberty in Vermont has been coextensive with liberty in the United States. Vermonters have been in the forefront, from the earliest days of the Nation, in war and in peace, in establishing, defending and advancing our precious heritage of liberty under law. To the gallant men of this State who have fought for freedom — whether at Ben-
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nington or Tripoli or New Georgia — it is not just a sentimental concept: it is life itself. To such men, the denial of basic constitutional rights to any man — regardless of race, religion, national origin or station in life — is abhorrent.
The Court has the utmost confidence that the State of Vermont, implementing the conditional issuance by this Court of the writ of habeas corpus as the basic safeguard of freedom in the Anglo-American world — the principal bulwark of liberty — will act swiftly and wisely to correct the grave miscarriage of justice which has been inflicted upon this petitioner who has been incarcerated for more than two and one half years, two of which have been pursuant to a void judgment.
Let the Great Writ issue, subject to the right — indeed, the duty — of the sovereign State of Vermont promptly to take action appropriately to correct, if susceptible of correction, the defects which render discharge of petitioner necessary, failing which he shall be discharged forthwith.
O&BEE, AND JUDGMENT
Petitioner Prank Brown, a prisoner in the Vermont State Prison at Windsor, having filed in this Court on July 18, 1961 a verified petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2241 , claiming that his conviction in the Windham County Court of arson causing death and his sentence of life imprisonment were obtained in violation of his federal constitutional rights, as a result of which he is being illegally detained pursuant to a void Judgment Order of the Windham County Court filed December 3, 1959 and a void Mittimus To State Prison issued by the Windham County Court January 5, 1960; and
This Court on July 20, 1961 having issued, and having caused to be served on respondent, Robert G. Smith, warden of the Vermont State Prison, on the same day, an Order To Show Cause requiring said respondent to show cause why a writ of habeas corpus should not issue; and
Respondent having filed a verified return to the said Order To Show Cause and the Attorney General of Vermont having filed a verified answer to the petition for a writ of habeas corpus; and
Petitioner, by his counsel, having filed a verified replication to the said return and answer; and
The American Civil Liberties Union, upon application, having been granted leave to participate as
amicus curiae;
and
The Court having held a hearing in Brattleboro, with sessions on July 27, August 14,15,16 and September 12,1961, at which the parties submitted their proofs, including the entire record of proceedings in the Windham County Court and the Vermont Supreme Court in the case of State of Vermont v. Frank Brown, reported at 121 Vt. 459 , 160 A.2d 879 (1960) and 122 Vt. 59 , 163 A.2d 845 (1960); and
Petitioner having been present in person at all sessions beginning with that held August 14, 1961; and
The Court having received and considered the parties’ briefs, proposed findings of fact and conclusions of law and having heard oral arguments by counsel; and
The Court having announced its decision in open court on December 22, 1961, and having concluded that the failure to accord petitioner a fair trial by a panel of indifferent jurors plus the denial of state appellate review, combined to deprive petitioner of his rights under the Constitution of the United States; it is
ORDERED, ADJUDGED AND DECREED :
(1) That petitioner’s judgment of conviction and sentence of life imprisonment, being in violation of the Constitution of the United States, be, and the same hereby are, set aside as void.
(2) That the Judgment Order entered in the Windham County Court in the case of State of Vermont v. Frank Brown, Docket No. 9460, dated November 24, 1959 and filed December 3, 1959, be, and the same hereby is, set aside as void.
(3) That the Mittimus To State Prison issued January 5, 1960 by the Windham
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County Court in the said case, committing petitioner to the Vermont State Prison at Windsor for the rest of his natural life, be, and the same hereby is, set aside as void.
(4) That petitioner be, and he hereby is, discharged from detention pursuant to said void Judgment Order and said void Mittimus To State Prison;
PROVIDED, that discharge of petitioner pursuant to this paragraph (4) of the ORDER AND JUDGMENT of this Court be, and the same hereby is, stayed for a period of thirty (30) days to enable the State of Vermont to take petitioner before the court where the said judgment was rendered for the purpose of correcting, if susceptible of correction, the defects which render discharge necessary in accordance with the decision of this Court, including the granting promptly of a new trial to petitioner in a county sufficiently removed from the Windham County locality to make reasonably certain that a fair trial by an indifferent jury may be had; and
PROVIDED FURTHER, that, if the State of Vermont does act within thirty (30) days in accordance with the foregoing subparagraph of this ORDER AND JUDGMENT, the said stay of discharge of petitioner shall continue for such reasonable period of time as may be required for the completion with all deliberate speed by the Vermont state courts of such proceedings as may be undertaken to correct the defects which render discharge necessary in accordance with the decision of this Court.
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APPENDIX C
Address by Geoffrey Lawrence, Q. C., on “Free Press And Fair Trial” Given At The Second Circuit Judicial Conference on September 10,1960 at Manchester, Vermont
As a guest in your great country I am singularly honoured by your invitation to take part in this discussion this morning. After listening to the very interesting contributions made by. the earlier speakers it appears to me that what I am being invited to give is the answer to the question “What would you do, ‘chum’?” Of course I can only speak to you on the subject from our experience in England. I could not in any case approach the topic by way of an attempt to resolve a conflict between specific constitutional guarantees for at least two reasons. The first is that, as you know, we in England are not the fortunate possessors of any constitution at all — at least in the sense of any written document which is on view to the public; and the second is that with us there is no such conflict. It is commonly supposed in my country, with a measure of truth which is demonstrated by our practical life, that we have reserved and presently exemplify all the basic freedoms, including the freedom of
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the press and the free right of a man to a fair trial by an impartial jury of his peers. We have so far managed to prevent these two freedoms from getting in the way either of the other. I do not wish to sound complacent when I say this, for it would be an incautious man who denied the possibility of such a conflict in any genuinely democratic community but I should be less than candid if I did not say at once that we have not been troubled by this embarrassment. I am sure you will all understand that in saying this and what I shall later add I am adopting an attitude neither of superiority nor of criticism. We are sim-. ply fortunate in having been able to avoid these difficulties and it may be of interest to you if I go a little way into the reasons, as I see them, for our immunity from the troublesome problems already discussed by my colleagues on this panel.
The first, I think, is that the law of contempt of court is clear, unequivocal and accepted generally by our community: the second is that our Courts have never hesitated, in proper cases, to enforce that law with a promptitude and sternness which have left no one, including even the most dull witted newspaper editor, in doubt what it is and what is the penalty for dis

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/1404842. Public record. Not legal advice.