Amicus Curiae Brief — Sheppard v. Maxwell
Supreme Court brief1966
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TABLE OF CONTENTS.
OBJECTIONS TO JURISDICTION __________________ > 1
praveusune or tun Case... 7
a WN 11
ANE ERE ER OE Oe Le EIS 5 16
Introductory Statement _........__.. ________ 16
Reasons for Not Granting the Writ _...________ 17
I Sg lieth ey 18
ae Pe oo 18
B. Publicity During Trial _.....__..._________ 35
II. Disqualification of the Trial Judge _...________ 57
II. Lie Detector Evidence _....._...____________ 64
IV. Misconduct of Bailiffs in Allowing Jurors to Call
Eee Ear 72
V. Other Alleged Constitutional Violations ______ 79
VI. Sufficiency of the Evidence _.......__ 84
VII. The Aggregation of Error _......_--._____ 85
Cemcnueor .........- adeipblicmaithnatinuiccaeaicae eee 86
TABLE OF AUTHORITIES.
Cases.
Beck v. Washington, 369 U. S. 541, 8 L. Ed. (2d) 98,
82 Sup. Ct. 955 (1962) ~-..------------------ 5
Buchalter v. People of State of New York, 319 U. S.
427, 63 S. Ct. 1129, 87 L. Ed. 1492 ___----.---- 69
Delli Paoli v. United States, 352 U.S. 232 (1957), 77
S. Ce: 206, 1 2. Ba 26 27S .....-.....-....-.--- 25
Emmert v. State, 127 O. S, 235 ..-.---.----.------- 6
Estes v. Texas, 14 L. Ed. (2d) 543 (1965) ____ 34, 47, 86
Vay v. Neis, 372 U. S. 901. .-.-.......-.-------- 60, 65
Ford v. U. S., 233 F. 2d 56 (C. A. 5th Tex.) (1956) _. 44
Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) -. 67
Holt v. United States, 218 U. S. 245 (1910), 31 S.
oe 4 (4 4)! ee 24
Irvin v. Dowd, 366 U. S. 717, 6 L. Ed. 2d 751, 81 S.
a FI a ai ilacanickinincncakeseccnisticbaiianictbioanes 21, 25, 32
Jones v. Cunningham, 313 F. 2d 347 (4th Cir.)
(1963) ...-.. alii eceaieaiiieaatiatilac taeksisctretad iateniasinsitiesictibiin 59
Knewel v. Egan, 268 U. S. 442, 69 L. Ed. 1037 (1925),
case below 298 Fed. 784 _____._-------------- 10
Mattox v. United States, 146 U. S. 140 (1892) ~_.-_- 17
Moses v. Hudspeth, 129 F. 2d 279 (10th Cir.) (1942),
certiorari denied in 317 U. S. 665, 87 L. Ed. 534,
OB FO eco tcccecconcccemnsccnncase 59
Murchison, In re, 349 U.S. 133 (1955) ~-.--------- 60
New Jersey v. Driver, 183 A. 2d 655 (1962) _..-_--- 67
Ohio v. Smith, 113 O. App. 461 (1960) ~..-..------ 67
Oliver, In Re, 383 U. S. 257, 92 L. Ed. 682, 68 S. Ct.
i TER RS I Sa 9
—.
Opper v. United States, 348 U. S. 84 (1954), 75 S. Ct.
A Als Es II snccniticrintndhcieenenssinncapliian ceuitenn abides 24
Rideau v. Louisiana, 373 U. S. 723, 10 L. Ed. 2d 663,
Ie ie ER CIE ccentarinteccepeemccisiciighesbiecisaiiligaouy 20, 32
Rosier, Ex parte, 133 F. 2d 316 (C. A.D.C., 1942) _. 9
State v. Hilliard, 89 Arizona 129, 359 P. 2d 66 (1961) 44
be os Same, BO Ae oi ieee 6
State v. Sheppard, 121 N. E. (2d) 440 _....__ 80
State v. Sheppard, 352 U. S. 910, 1 L. Ed. 2d 119, 77
Supreme Court 118 (1956) _...__.___________. 2
State v. Sheppard, 77 Supreme Court 323, 352 U. S.
RN II I I tan a a 8 2
State ex rel. Pratt v. Weygandt, 164 O. S. 463
6 AE SMT SC ENE Ney ie, 59, 60
Stroble v. California, 343 U. S..181 (1952) _.______ 5
Townsend v. Sain (1963), 372 U. S. 293, 9 L. Ed. 2d
SAA IN Mt, TIED ccctincttntncacinadindaiertninesemadbee 66, 77
Trombley v. Langlois (R. I.), 163 A. 2d 25 (1960) _. 44
Tumey v. Ohio, 273 U.S. 510 (1927) _____ RA 59, 60
United States v. Sorcey, 7 Cir. 151 F. 2d 899 (1945),
certiorari denied, 327 U. S. 794, 66 S. Ct. 821,
Se AAR SR ta 24
U.S. ex rel. Townsend v. Ogilvie, Sheriff, 334 F. (2d)
SES MEE Detntsctoratusneaiathensiiaediths cee cele 66
Walker v, Johnston, 312 U. S. 275, 85 L. Ed. 830, 61
Se Oe CUNED . wernciiasesniccwcn-cemis adebaious 59
Wolf v. Nash, 313 F. 2d 393 (C. A. Mo.) (8th Cir.)
(1963), certiorari denied, 83 S. Court 1713, 374
Ge Gar, Bean ee Oe ees nS
State Constitution and Statutes.
Ohio Constitution:
fg RAGS, Rr SS CA 83
a caeencemsiplersimenereas 60
Ohio Revised Code:
a selene 80
ET RR ENE OS A ACR RR oe EN ee 60
REI SRES Sken Re ee EN eo 47
i aia ca aoa ens aeessaien on eisineposiontiens 17
I iis nh nln daeclanicienlobs niet 4, 32, 78
Texts.
30A American Jurisprudence, Sec. 172, p. 89 _----- 61
» a TE Bf eR eee ren mee 43
SS eee
In the Supreme Court of the United States
OCTOBER TERM, 1965.
No. 490.
SAMUEL H. SHEPPARD,
Petitioner,
v.
E. L. MAXWELL, Warden,
Respondent.
BRIEF AMICUS CURIAE ON BEHALF OF
RESPONDENT.
To the Honorable Chief Justice and Associate Justices of
the Supreme Court of the United States:
In accordance with Rule 27 of this Court that consent
to the filing of a brief of an amicus curiae need not be had
when the brief is presented for a political subdivision of
a State sponsored by the authorized law officer thereof,
the Prosecuting Attorney of Cuyahoga County, Ohio re-
spectfully requests consideration of the Brief of the Prose-
cuting Attorney in the disposition of the pending pétition
for a writ of certiorari in the above entitled case.
OBJECTIONS TO JURISDICTION.
This State criminal case was tried in 1954 in Cuya-
hoga County, Ohio. The judgment of conviction, the judg-
ment of the trial court overruling the motion for a new
trial, and the judgments of the state appellate courts, have
already been considered by this Court for review on a writ
2
of certiorari, and certiorari was denied. State v. Sheppard,
352 U. S. 910, 1 L. Ed. 2d 119, 77 Supreme Court 118
(1956). Petition for rehearing was denied on December
17, 1956, State v. Sheppard, 77 Supreme Court 323, 352
U.S. 955, 1 L. Ed. 2d 245.
All of the alleged errors and issues that were raised
in the State Courts, including pre-trial publicity, publicity
during trial, whether a change of venue and/or a continu-
ance should have been granted, whether the trial judge
deprived petitioner of a ‘air trial in the handling of the
judicial proceedings, and whether a fair and impartial jury
was impaneled and maintained on the trial of this case,
were before this Court for review in 1956. And the same
editorials, newspaper articles, national comment on the
trial) photographs at the inquest and trial, the demand for
petitioner’s home, affidavit in support of motion for new
trial, transcript of the bail hearing, that are incorporated
in the Appendix to the present petition are to be found in
the Appendix to the former petition that was before this
Court for consideration and review. The several news-
paper articles added to the present petition, together with
the chapter from a book commenting on the case, as well
as the claims made in the petition concerning publicity,
represent a piecemeal presentation to this Court of more
of the same thing that the court was called upon to con-
sider nine years ago, namely, publicity. As the United
States Court of Appeals stated in the majority opinion,
“The main issues in this case are not the belated discovery
of present counsel.” (Pet. Rs. 8.)
In the well reasoned opinion and decision of the
United States Court of Appeals for the Sixth Circuit, re-
versing the judgment of the federal district court in the
habeas corpus proceeding here involved, Circuit Judge
O’Sullivan, speaking for the majority, said:
ae :
—
“Before detailed discussion of the issues before us,
it should be preliminarily observed that Dr. Sheppard
was released not because of any evidentiary showing
that the jury was prejudiced by the newspaper and
other publicity or that the trial judge exhibited par-
tiality or prejudice in his conduct of the trial, nor be-
cause of any evidence that the jurors’ cal’s to their
homes contained any improprieties. The District
Judge presumed that the judge and the jury must
have been so affected by the publicity and other
events as to be unable to discharge their respective
responsibilities in keeping with constitutional stand-
ards. Reviewing substantially the same record as did
the District Judge here, the appellate machinery of
Ohio, challenged to do so, was unable to discern the
evils now presumed by the District Judge. Aware
that as a matter of formal rule, denial of certiorari
by the United States Supreme Court does not bespeak
its approval of a state court decision, we do mention
that critical points now made by Dr. Sheppard did not
excite the Supreme Court to take for review this case
now characterized by the District Judge as ‘a mockery
of justice.’” (Pet. App. A, s.3-s.4.)
The Court of Appeals said further:
“The facts of this case do not add up to any of the
situations in which the Supreme Court of the United
States or any United States Court of Appeals has
found it appropriate to strike down a judgment
affirmed by the highest court of a state.” (Pet. App. 3,
s.59.)
And when the judgments of the state courts were be-
fore this Court in 1956 for review on a writ of certiorari,
the state courts had not decided a federal question of sub-
stance not theretofore determined by this Court, nor had
the state courts decided any question in a way not in ac-
cord with the applicable decisions of this Court. There is
no substantial federal question in this case.
4
As the Court of Appeals said, there was no eviden-
tiary showing nor any proof offered in the District Court
that the jury was prejudiced by the newspaper and other
publicity or that the trial judge exhibited prejudice in his
conduct of the trial. Nor was any evidence or proof offered
in the District Court that the jurors’ calls to their homes
contained any improprieties. Of a certainty, there is no
proof and the petitioner presents in the present petition
not a single specific item showing that the jury was influ-
enced on the trial of this case by anything except the evi-
dence presented in open court and the law applicable
thereto. Only broad generalities and faulty assumptions
are indulged in and argued in the present petition on the
aspect of publicity.
Section 2945.83 of the Revised Code of Ohio, govern-
ing the state courts on review, provides:
“No motion for a new trial shall be granted or verdict
set aside, nor shall any judgment of conviction be re-
versed in any court because of:
* * *
(C) The admission or rejection of any evidence
offered against or for the accused unless it affirm-
atively appears on the record that the accused was or
may have been prejudiced thereby;
e-.2. 8
(E) Any other cause unless it appears affirm-
atively from the record that the accused was preju-
diced thereby or was prevented from having a fair
trial.”
This state statute is in conformity with the ruling of
this Court in many cases. The United States Court of Ap-
peals said:
“Before examining in detail the nature of the pub-
licity given Dr. Sheppard’s case, it is well to note that
he must carry the burden of demonstrating the con-
| 5
) stitutional vice in his conviction. As stated by the
First Circuit in angther publicity case, ‘the question
whether jurors ‘are impartial in the constitutional
sense is one of mixed law and fact as to which the
challenger has the burden of persuasion * * *,’ Geagan
v. Gavin, 292 F. (2) 244, 246 (CA 1, 1961), cert. de-
nied, 370 U. S. 903 (1962). This burden is one which
must be carried ‘ “not as a matter of speculation but
as a demonstrable reality.” ’ United States ex rel.
Darcy v. Handy, 351 U. S. 454, 462, 100 L. Ed. 1331,
1338 (1956) (emphasis supplied); Stroble v. Califor-
nia, 343 U.S. 181, 198, 96 L. Ed. 872, 885 (1952). See
also Adams v. United States ex rel. McCann, 317 U.S.
269, 281, 87 L. Ed. 268, 276 (1942).” (Pet. App. A,
s.8.)
In Stroble v. California, 343 U. S. 181, 194-196
(1952), Mr. Justice Clark delivered the opinion of the
court and stated:
“* * * Indeed, at no stage of the proceedings has
petitioner offered so much as an affidavit to prove that
any juror was in fact prejudiced by the newspaper
stories. He asks this Court simply to read those
stories and then to declare, over the contrary finding
of two state courts, that they necessarily deprived him
of due process. That we cannot do, at least where, as
here, the inflammatory newspaper accounts appeared
approximately six weeks before the beginning of peti-
tioner’s trial, and there is no affirmative showing that
any community prejudice ever existed or in any way
affected the deliberation of the jury. * + +”
In Beck vs. Washington, 369 U. S. 941, 8 L. Ed. (2d)
98, 82 Sup. Ct. 955 (1962), Mr. Justice Clark delivered the
opinion of the Court and said, 369 U. S., at page 556:
“As in his grand jury attack, petitioner makes no claim
that any particular petit juror was biased. Instead,
he states the publicity which prevented the selection
of a fair grand jury also precluded a fair petit jury.
6
He argues that such a strong case of adverse publicity
has been proved that any jury selected in Seattle at
the time he was tried must be held to be presump-
tively biased and that the trial court’s adverse rulings
on his motions for a change of venue and for continu-
ances was therefore in error. Of course there could
be no constitutional infirmity in the trial court’s ad-
verse rulings on the motions for a change of venue
and for continuances, if petitioner actually received
a fair trial.”
The Court said further, 369 U. S., at page 558:
“While this Court stands ready to correct violations of
constitutional rights, it also holds that it is not asking
too much that the burden of showing essential unfair-
ness be sustained by him who claims such injustice
and seeks to have the eal set aside, and that it be
sustained not as a matter of speculation but as a de-
monstrable reality.”
The laws of the State of Ohio provide for a motion for
new trial and upon the hearing of that motion, the affi-
davits and testimony of the jurors may be received, Em-
mert v. State, 127 O. S. 235; State v. Joseph, 90 O. A. 433.
Although several jurors were subpoenaed and were thor-
oughly interrogated by defense counsel at the hearing on
the motion for new trial, not a word of testimony was pro-
duced to justify the defense claim that the jurors were in-
fluenced by anything other than the evidence produced in
open court, in reaching their verdict. The claim that they
were influenced by news stories or any other outside influ-
ence is not supported by the record.
And the majority opinion of the United States Court
of Appeals in the proceeding here involved, states:
“1) Publicity.
“We should at the outset confess a certain temp-
tation to yield to today’s accelerating current of ex-
7
citement and concern about undue press coverage of
criminal charges and trials, and to affirm petitioner’s
release as dramatic vindication of the bar’s contention
that some of its own members and some of the various
media of information have by misuse of their rights
prevented our courts from according fair trial to all
who are accused of crime. Doubts as to the efficacy
and propriety of such action, however, are supple-
mented by the certain knowledge that it is our duty
as federal judges to avoid a state judgment of convic-
tion only where some constitutional infirmity may be
found. Careful consideration of this case leads to the
conclusion that no such infirmity infects Dr. Shep-
pard’s conviction.” (Pet. App. A, s.6-s.7.)
STATEMENT OF THE CASE.
The Prosecuting Attorney of Cuyahoga County had
the responsibility and the burden of handling the prosecu-
tion of this case on the trial in 1954, on the appeals
through the State courts, and on certiorari in this Court
in 1956. The State of Ohio, the plaintiff in the original
action, through the office of the Prosecuting Attorney of
Cuyahoga County was, therefore, a real party in interest.
In all fairness then, counsel of record for the prosecution
in the State courts should have been given an opportunity
to appear, defend and be heard on this collateral attack
that was being made on the Cuyahoga County officials.
However, on the day the habeas corpus proceeding
was set for hearing and the writer of this brief put in an
appearance as counsel of record in the State courts, she
waz told by the District Judge that he would not permit
ber in the hearings; that she was not counsel of record in
ihe habeas corpus proceeding, and refused to put on an
order making her counsel of record. Instead, and the same
day, the District Judge made an order, Pre-trial Order No.
: ae
1 (Appendix, Vol. I, 28a), limiting those who could be in
attendance. None of the attorneys listed in Pre-trial Order
No. 1 had any previous connection with the case, but the
District Judge proceeded to meet with them in closed
hearings.
Some time later, an order eventually went on in the
District Court, applied for by the Attorney General’s of-
fice, making the writer counsel of record, but the par-
ticular District Judge who handled this proceeding had
made it clear to the writer by his hostile attitude, that he
did not want her around in the hearings. The court never
came out in the open with the case to give the prosecution
a chance to orally argue the issues that were being
raised.
The habeas corpus proceeding resulted in a one-sided
proceeding, a presentation of only the defense side of the
case. Pre-trial Order No. 2 (Appendix, Vol. I, pp. 3la-
33a) contains the so-called “History of the Case” which
the District Court incorporated in its decision, and it gives
only the' defense version of the evidence.
Pre-trial Order No. 3 (Appendix, Vol. I, pp. 150a(1)-
150a(2) contains a stipulation of the twenty-two alleged
issues that were to be considered by the District Court,
which was later amended to include the twenty-third issue
to the effect that the trial judge should have disqualified
himself.
Subsequently, the District Court made an Order (Ap-
pendix, Vol. III, pp. 295a-296a) that stipulations regarding
publicity and related issues were to be filed, and that all
evidence in the action was to be presented to the District
Court by affidavit and/or deposition. The stipulation that
was filed covered fragmentary excerpts from the record
and material such as a copy of the petition for a writ of
certiorari to the United States Supreme Court and the
; 9
Appendix thereto (Appendix, Vol. III, pp. 296a-297a); and
it was stipulated that such petition could be used as ref-
erence material by the parties. This, if anything, shows
the one-sided proceeding that was conducted.
As to the Order of the District Court requiring stipu-
lations and the presentation of evidence by affidavit and/or
deposition, the record shows that instead of affidavits or
depositions, the petitioner furnished the Court with three
unsworn statements, one taken in New York from the
New York gossip columnist Dorothy Kilgallen Kollmar,
who was not cross-examined, and two taken in Cleveland,
from Fred Garmone, one of the former counsel for peti-
tioner, and from Edward Murray, an employee in the of-
fice of the Clerk of Courts in Cuyahoga County. The Dis-
trict Judge later nt these unsworn statements to be un-
controverted evidence.
The Bill of Exceptions covering the trial of this case,
consisting of 12 volumes and a Supplement, was placed
on file with the District Court, but there is to be found in
the Court’s decision, no independent evaluation of the
voir dire testimony.
What the District Judge did in the handling of this
habeas corpus proceeding, was condemned by this Court
in In Re Oliver, 333 U. S. 257, 92 L. Ed. 682, 68 S. Ct. 499
(1948).
It was held in Ex parte Rosier, 133 F. 2d 316 (C. A.
D. C., 1942), at page 325:
“The decision in Walker v. Johnston that the hearing
on controverted issues of fact must be either ore tenus
or by depositions is responsive to the requirement of
the 5th Amendment that no person shall be deprived
of life, liberty or property without due process of
law. Can it be doubted that ‘due process of law sig-
nifies a right to be heard on one’s defense’? * * *
—
10
The right of hearing under the due process clause in-
cludes the right of each party to a cause to introduce
evidence in support of his claim or defense, to hear
the evidence introduced against him, to test the same
by cross-examination, the right that nothing shall be
treated as evidence which is not introduced as such,
and the right to make argument on both law and
fact.” (Emphasis ours.)
In Knewel v. Egan, 268 U. S. 442, 69 L. Ed. 1037
(1925), case below 298 Fed. 784, which was an appeal
from an order of the District Court discharging on writ of
habeas corpus one convicted of presenting a false insurance
claim, this Court held, at page 447:
“The real parties in interest in prosecuting the appeal
are the state and the present sheriff, who is a public
officer representing the county and the state. The
substitution of the sheriff as appellant should be
made, and the state be allowed to intervene.” (Em-
phasis ours.)
No oral argument was had in the District Court pro-
ceeding. The record shows that petitioner’s counsel waived
oral argument and the matter was submitted on briefs.
The District Court stated in the Conclusion of its de-
cision that the trial can only be viewed as a mockery of
justice, but his findings show that they are not based upon
any examination of the trial record. And, it was a denial
of procedural due process of law to the county authorities
for the court to make a finding that the trial jury was not a
fair and impartial jury without making an examination of
the voir dire record to determine that issue. The District
Court reviewed the State’s case in the light, not of the rec-
ord, but of what the newspapers had to say to the public
before and during the trial, and made a finding that the
jury in this case was not a fair and impartial jury because
of the stories furnished by the newspapers to the public.
ETRE RE IPSN URE RT eee Pm ONE tress 27) FRO A aki
ll
STATEMENT OF FACTS.
The “Statement of Facts” in the body of the present
petition at pp. 8 to 13, contains alleged facts that are not
supported by the record in this case, and other state-
ments pertaining to the proceedings on the trial which
are not representative of the true situation that existed
on the trial.
The statements that “examination of the first floor of
the house disclosed abundant evidence of ransacking (Pet.
p. 9); that petitioner’s narrative of what happened at the
time of the murder “never varied” (Pet. p. 9); that “Dr.
Sheppard exhibited a fractured cervical vertebra” (Pet.
p. 10); that “much alleged evidence was announced and
summarized by the prosecution prior to its offer in court”
(Pet. p. 11); that “a good deal of what was described as
damning evidence was never produced” (Pet. p. 12); that
“newsmen constantly disrupted the proceedings” (Pet. p.
12); and that “petitioner was repeatedly photographed in
the courtroom without his consent” (Pet. p. 12), are not
supported by the record in this case.
The omission by the petitioner of all of the pertinent
evidence presented by the State in the trial of this case,
necessitates our directing the attention of this Court to an
objective statement of the evidence as set forth in the
opinion of the Court of Appeals of Cuyahoga County (App.
Vol. I, pp. 64a-80a). The State proved by direct and cir-
cumstantial evidence that Marilyn Sheppard was brutally
murdered in her bedroom some time between 3 and 4
a.m. on the morning of July 4th, 1954; that at the time she
was murdered the only person in that home, except a six
year old son, was her husband, the petitioner. It was con-
clusive from the evidence that there was a simulated bur-
glary and that nobody but the petitioner had the time and
exclusive opportunity to fake such a burglary to divert
12
suspicion from himself. The evidence was so overwhelm-
ing that the burglary set-up was a fake that even counsel
for the defense was obliged to say to the jury:
“Well, of course, we don’t claim there was a burglary.
I mean I don’t know why the intruder was there. We
claim there was a man there, but whether he was
there for a burglary or not, I don’t know. We never
claimed that he was.” (R. 62, Supp.)
The jury was fully justified in concluding that the only one
who was in a position to and had the time, and who ac-
tually did set up this fake burglary was the petitioner.
That the story told by the petitioner about the bushy-
haired “form” in the house, and on another occasion
“forms” (he wasn’t sure whether there was one or two
“forms’”’) was concocted, is shown by the evidence.
The evidence established that Dr. Lester Hoversten
visited the petitioner at Bay View Hospital on July 5th,
at which time Dr. Steve came into the room, was irritated
and stated that he had left strict orders that no one was
to see Sam unless he, Dr. Steve, was first notified (R.
3803).
Dr. Hoversten testified relative to that incident as
follows:
“Q. Did Steve leave at any time after he came in?
A. Yes. After speaking sharply to me, he turned
on his heel and walked quickly out of the room, and
then he came back in just a few minutes.
Q. And when he came back in, did he say any-
thing? |
A. Yes. I remember I was sitting on the left hand
side of the bed, and Steve sat near the foot of the bed,
and he advised Dr. Sam to go over in his mind several
times a day—
As I recall, Ur. Steve addressed Dr. Sam, and
said in words to ‘his effect, “You should review in your
mind severa) times a day the sequence of events as
=...
they happened so that you will have your story
| straight when questioned,’ and then he gave as an
example, “You were upstairs, you went downstairs,
and from here to there,’ and so forth.” (R. 3812-13.)
The fantastic stories told by the petitioner were so un-
reasonable and absurd as to be, in the opinion of the jury,
unworthy of credence.
The Court of Appeals of Cuyahoga County, after giv-
ing in its opinion a summary of much of the evidence deal-
ing with many of the physical facts and conditions of the
premises as found on July 4th and of the declarations and
actions of the parties involved as testified to by the public
authorities and other witnesses, together with what the
defendant said to others and in his testi®nony upon trial in
relation to the events of the morning, said
“The testimony of the defendant, in dealing with
the events that took place in his presence or the things
that he did, was characterized by the State as vague,
indefinite, uncertain or factually highly improbable.
During the time he was under cross-examination the
defendant gave evasive answers such as ‘I can’t racall’
or ‘I can’t remember,’ approximately 216 times to
questions concerning facts and circumstances that
took place in his claimed presence material to the is-
sues in the case.
“The jury, under the instruction of the court, was
presented with but one question or issue of fact and
that was, had the State shown beyond reasonable
doubt that the defendant purposely killed Marilyn
Sheppard?
“The State’s case is based in part on circum-
stantial evidence. The law of Ohio on this subject
requires that the facts and circumstances upon which
the theory of guilt is based must be established beyond
a reasonable doubt and the facts so established must
be entirely irreconcilable with any claim or theory
of innocence and admit of no other hypothesis than
peernen
the guilt of the accused. Carter vs. State, 4 Oh. App.
193.
“If, therefore, the jury, after careful deliberation,
found that there was any possible hypothesis of in-
nocence, after a consideration of all of the evidence,
then the defendant would be legally entitled to be
discharged, but if the jury found, after full delibera-
tion, there was no possible hypothesis of innocence
based on the facts as they found them to be and that
the facts found are such as to be irreconcilable with
any other reasonable hypothesis, than the guilt of the
accused, then a verdict was required.
“This was a jury question and we hold that there
was sufficient evidence to support the verdict of guilty
as found by the jury.” (Emphasis ours.)
Reference is made in the petition (p. 10) to the in-
juries allegedly sustained by the petitioner. Petitioner’s in-
juries were the subject of conflicting testimony on the trial. -
Whatever injuries the petitioner sustained, he claimed
they were caused by a blow or blows of the fist of the as-
sailant that he encountered in the bedroom where his wife
came to her death as a result of many blows on the head
with a blunt instrument. It was on this occasion and only
then, that the petitioner claimed that there might have
been two assailants, “one working over his wife” and the
other striking the petitioner from the back with his fist.
While petitioner was “chasing” the “form” to the beach
(instead of summoning help for his wife), there was no
suggestion that there was more than one object or form
in front of him.
Reference is made in the petition (pages 3, 10) to
truth serum. To the best of our knowledge and
memory (the Bill of Exceptions is now in Washington)
nothing was proffered on the trial by the State on this sub-
ject, and counsel for the petitioner gives no record ref-
_
15
erence. The publicity concerning truth serum occurred in
the early days of the murder when the petitioner was
being shielded from interrogation.
Reference is made in the petition (p. 11) to the use
of the words “grilling” and “third degree” in a newspaper
editorial (considered by this Court in the former petition).
Those expressions are frequently applied to a thorough in-
terrogation and do not at all necessarily mean the use of
force or violence. No one laid a hand on the petitioner.
Further, that editorial appeared months before the trial.
In the dissent in the Court of Appeals (Pet. p. 11) it
was claimed that the only motive suggested to the jury
was petitioner’s affection for one Susan Hayes. The State
was not required to prove any motive. The only person
who was present in that house and who knew the motive
for the killing was the petitioner, and he wouldn’t talk.
Reference is made in the petition (p. 13) to Mrs.
Ahern’s testimony that Mrs. Sheppard had told her that
the petitioner had discussed the possibility of seeking a
divorce from her with Dr. Chapman while in California.
There was considerable testimony as to conversations the
petitioner had with others (particularly Dr. Hoversten
and Miss Hayes) on the subject of divorce, such conver-
sations being in part admitted by the petitioner.
The transcript of the bail hearing which appears in
the Appendix to the petition is not complete (Appendix
A, s.164). The complete answer of the foreman explain-
ing the “pressure” was as follows:
“Q. What was the pressure that was placed on.
you?
A. Only curious people who wanted to know
what we knew on the Grand Jury.” (Emphasis ours.)
The pressure was for information and not, as suggested,
to indict the petitioner.
16
ARGUMENT.
Introductory Statement.
Due to the broad generalities that are indulged in by
present counsel for the petitioner, the wild assertions and
faulty assumptions, without a single specific item being
cited in support of the claims made, and in view of other
statements in the petition which create or tend to create
impressions not representative of the true situation that
existed in the judicial proceedings of this case in Cuyahoga
County, we deem it important to point out to this Court
that present counsel for the petitioner had no previous
knowledgeable connection with the case by way of repre-
senting the petitioner during the investigation of this
murder, or participating in the trial, the appeals and on
certiorari to this Court. The petitioner had three compe-
tent and experienced counsel at that time and four counsel
when the case was presented to this Court. And it is not
a fact, as present counsel states, that this judgment of
conviction has been under constant litigation during the
past eleven years. This Court denied certiorari and denied
a rehearing in 1956 and there was no further court ac-
tion except a writ of habeas corpus in the Supreme Court
of Ohio in 1959 from the denial of which no appeal was
taken to this Court.
Permeating the present petition is a wholesale de-
nouncement of all of the Cuyahoga County public officials —
who had anything to do with the investigation of this
murder and the trial of the petitioner, and as a result had
had some publicity. The petition also castigates the news
media, particularly the Cleveland Press. Yet, the first we
knew that present counsel from out of the state could have
done a better job all the way round in the handling of this
case, including the handling of the duties of the trial judge,
SALON EEE IE EEE OP EE CLI
17
was when he brought himself to public notice in connection
with the case through the various news media. In other
words, he is using the case for his own ends, for the very
purpose that he condemns in the petition, namely, publicity
for himself. It has been our experience that this case has
attracted its share of publicity seekers.
After the petitioner was released by the District Judge,
a release characterized by the United States Court of Ap-
peals as “improvident,” his present counsel really got the
Sheppard show rolling on television and in the newspapers,
with counsel playing the principal role and publicly threat-
ening libel suits. The publicity that Judge Blythin and the
prosecutor received, for example, was picayune by com-
parison.
REASONS FOR NOT GRANTING THE WRIT.
The decision of the majority of the Court of Appeals
sums up the habeas corpus proceeding as follows:
“The habeas corpus proceeding here involved was
commenced in the United States District Court April
11, 1963, charging, as amended, some 23 separate
constitutional defects in Sheppard's conviction. Some
of these had already been found without merit by the
Ohio Courts and others were new. Indicating his
view that there were probably other constitutional
imperfections in Dr. Sheppard’s trial, the District
Judge bottomed his decision on four separate grounds,
(1) newspaper publicity before and during the
trial denied Sheppard a fair trial,
(2) the trial judge should have disqualified him-
self,
(3) evidence that Sheppard had refused to take
a lie detector test and that another witness had taken
such a test was improperly brought before the jury,
and
ERE I
18
(4) the bailiffs in charge of the jury after the
cause was submitted to it improperly allowed in-
dividual jurors to make telephone calls to their fami-
lies. Grounds 1 and 4 were passed upon in the Ohio
Court of Appeals and Supreme Court and were found
to be without merit. They were also relied upon in
the application to the United States Supreme Court
for certiorari, which was supported by the same
volumes of newspaper publicity as are before us.
Ground 2 and part of Ground 3 were first asserted in
the instant petition for habeas corpus.” (App. A, pp.
s.2-s.3.)
I.
PUBLICITY.
A. Pre-trial Publicity.
Counsel for the petitioner infers and assumes with no
basis in fact that except for the Editor of the Cleveland
Press and his prodding of the public officials to “quit
stalling” and arrest Dr. Sheppard, the petitioner would
not have been suspected and arrested for the commission
of this murder; and, that except for the Coroner and his
inquest, the petitioner would not have been indicted.
Counsel recites what allegedly took place at the inquest
but the record before this court does not contain a record
of that proceeding, other than what was testified to by Dr.
Gerber. The inquest was held in July and months before
the trial.
It should be borne in mind that the legal and constitu-
tional question is whether a fair and an impartial jury
was impaneled, or whether a change of venue and/or a
continuance should have been granted because such a jury
could not be obtained. Counsel for the petitioner avoids
that question in his argument. All that his argument
amounts to is a diatribe against the Editor of the Cleveland
eS FA A IARI OO COC OT RRO TER SI BEEPS ORRIN UE TN ARES PR
19
Press and the Coroner. As to this type of argument, the
Court of Appeals said:
“We need not here decide whether the Bay Village
authorities, or the Cuyahoga County coroner or the
Cleveland police did or did not need the urging pro-
vided by the Cleveland Press. It has not been asserted
that the police authorities were without the faults
charged to them, although it might fairly be inferred
that the Press’ meddling probably impeded more than
it helped.” (App. A, p. s.15.)
The decision of the District Court shows that the court
did not independently evaluate the voir dire testimony,
as this Court held should be done. The Court of Appeals
did, and said:
“In determining whether Dr. Sheppard has carried
the burden of demonstrating the unconstitutionality
of his trial, surrounded as it was by pervasive pub-
licity, it is our duty to review independently this voir
dire examination of the prospective jurors in the state
court. Irvin v. Dowd, 366 U. S. 717, 723 (1961);
United States ex rel. Bloeth v. Denno, 313 F. (2) 364,
372 (CA 2, 1963), cert. denied, 372 U. S. 978 (1963);
United States ex rel. Brown v. Smith, 306 F. (2)
596, 602 (CA 2, 1962), cert. denied, 372 U. S. 959
(1963); Geagan v. Gavin, supra, 292 F. (2) 246-47.
The voir dire examination fills nearly 1600 pages in
the record of the present case. Each prospective juror
was questioned about his acquaintance with the pre-
trial publicity, and each of those who ultimately re-
turned the guilty verdict swore that such publicity
had created in his mind no opinion as to the guilt or
innocence of the defendant and would not affect his
deliberations. A reading of the voir dire discloses its
thoroughness and careful inquiry as to any effect that
publicity might have had on the veniremen. We find
it without substantial fault and neither has counsel
4
20
pointed to any insufficiency or impropriety in it.
* * *” (Pet, App. A, pp. s.11-s.12.)
The Court of Appeals also evaluated the pre-trial
publicity, and stated:
“It should be emphasized that nowhere in the news
items is there any hint or suggestion that Dr. Sheppard
confessed or admitted his guilt, or any claim that he
had a criminal record or had been other than ar. ex-
emplary citizen, or any clear assertion that the press
or the police had any direct evidence of his guilt.
Comments to the press by police officials, and even
prosecutors, occasionally exceeded the bounds of pro-
priety, but they too revealed no more than that some
thought that Dr. Sheppard was guilty. In addition to
the pretrail publicity set forth in the District Court
opinion, the Cleveland papers also published items
emphasizing Dr. Sheppard’s protestations of inno-
cence.” (Pet. App. A, p. s.15.)
As justification for failing to examine the trial record
on the voir dire, the District Court pointed out that in
Rideau v. Louisiana, 373 U. S. 723, 10 L. Ed. 2d 663, 83
S. Ct. 1417 (1963) the Supreme Court did not examine
the transcript of the voir dire in reaching its determina-
tion as to prejudice and held in that case that the assur-
ances of jurors on voir dire may be disregarded. But in
the Ridea»: case, this Court was there considering conceded
circumstances that on the voir dire, counsel for Rideau
had requested that certain jurors who later decided the
case, be excused for cause, and these challenges for cause
had been denied by the trial judge.
Mr. Justice Stewart stated in the majority opinion,
in Rideau, 373 U. S. at page 725:
“Three members of the jury which convicted him had
stated on voir dire that they had seen and heard
Rideau’s televised ‘interview’ with the sheriff on at
SgUbe ts EBA OPES LOY. DUR AE REET BT ALT INT ER IATA INO ERSTE BRC E SH ao eee
w ; , . = as Ae 1 Se e eT VP fast
| 21
least one occasion. Two members of the jury were
deputy sheriffs. Rideau’s counsel had requested that
these jurors be excused for cause, having exhausted
all of their peremptory challenges, but these chal-
lenges for cause had been denied by the trial judge.”
The District Court also cited Irvin v. Dowd, 366 U. S.
717, 6 L. Ed. 2d 751, 81 S. Ct. 1639. But again, in the
Irvin case, the Supreme Court based its findings upon an
examination of the trial record and held at page 756, 6 L.
Ed. 2d, that it is the duty of the federal court on habeas
corpus to independently evaluate the voir dire testimony
of the impaneled jurors.
Juror Barrish is mentioned in the petitioner’s brief,
page 21, together with the reason he gave for having read
about the case. The further extended examination of Juror
Barrish by both parties is omitted from the petition and
the defense omit to state that they accepted Juror Barrish
by passing him for cause (R. 115) and that they had per-
emptory challenges which they chose not to exercise with
reference to Juror Barrish.
There was no proof presented to the District Court
by the petitioner, and the burden of proof was upon the
petitioner, that the jury that was finally impaneled by
both sides was not a fair and impartial jury as a result of
publicity before the trial. Nor do the decisions cited by
the District Court support the proposition that a court
may, on habeas corpus, as the District Court has done,
determine whether a defendant had a fair and impartial
jury impaneled, by reading the newspapers, without regard
to what the trial record shows. The court has indulged in
speculation and conjecture about the adverse effect certain
newspaper articles and headlines, occurring before the
trial, may have had upon the jury that was selected in this
case, and concludes on that basis alone, without any proof,
that the petitioner did not have a fair and impartial jury.
a
22
It must be remembered that the Mayor of Bay Village
was a close personal friend of the petitioner, as were the
police officers in Bay Village for whom he was the police
surgeon; that he was whisked off to Bay View Hospital
by his brothers without permission before the Coroner or
any of the Cleveland police officers arrived; that a pro-
tective shield was thrown around him and that the pe-
titioner and his counsel would permit no interrogation
except under their own terms and by designated friendly
officers; and that the petitioner and his counsel were ob-
structing the public authorities in what should be the nor-
mal investigation of a murder.
It seemed, at least to the newspaper editors, that cer-
tain public officials were “sitting on their hands” and
were fearful, for one reason or another, of proceeding
vigorously in the investigation as they would in any other
case. Certainly, these newspapers had a right to criticize
what they deemed to be a deliberate attempt to shield the
petitioner from interrogation, and a lack of progress on
the part of the public authorities in the investigation and
solution of this crime. It was inevitable that there would
be publicity concerning the petitioner’s unwillingness to
be interrogated save on his own terms and conditions and
that the public officials would be criticized, such criticism
of public officials not being the exclusive prerogative of
defense counsel, or of the American Civil Liberties Union
for that matter. And speaking of that organization, we
just read in the Cleveland Press, the newspaper that is
being so castigated in the present petition, what obviously
is a news release made to the Press by the American Civil
Liberties Union and its Ohio affiliate that they have filed
a brief with this Court in this case, and the newspaper
article quotes extensively from the brief.
The American Civil Liberties Union always make
sure that they are given the “freedom of the press’’ to ex-
Li RRA RNRP SIE 1c AUER AYO ENN oc ROPER APS IPMN RIES) ARSENE SINT PENA BER BENS MS es _—
Pte aa
23
pound their views, while at the same time they attempt to
deny the right of “freedom of speech” in the press to
others, including law enforcement officials. Their theory
seems to be that only a “chosen few” such as the American
Civil Liberties Union should be given the right of “free-
dom of speech” in the press, and “freedom of speech,”
whether a person speaks orally or in writing, is also guar-
anteed by the First Amendment.
Further, that Union, involving itself in cases in the
eleventh hour and not having any knowledgeable connec-
tion with the facts, the evidence and the judicial proceed-
ings, wants this Court to lay down rules and principles
predicated upon broad generalities and faulty assumptions.
Whether we or the Courts agree or disagree with the
opinions expressed by the newspaper editors is entirely
beside the point. It is pertinent to ask: What caused the
publicity before the trial, and who brought it about?
Marilyn Sheppard was murdered—there could be no
doubt about that—and it became the duty of law enforce-
ment officers to thoroughly investigate and to bring to
justice the person who murdered her. Much of the pub-
licity injected into the District Court's decision occurred
months before the trial took place. The murder occurred
on July 4th and the petitioner was not brought to trial
until October 18th. A great deal of the newspaper public-
ity occurring before the trial was inspired by the lack of
cooperation of the petitioner with the authorities begin-
ning immediately after the murder of his wife was com-
mitted, by the protective shield thrown around him, and
by the strategy of his counsel who was hired within hours
after the murder. None of the publicity was deliberately
promoted by the prosecution.
Any sensational murder such as this brings forth
publicity, some more, some less, but in the circumstances
of each case, the issue before the trial court is whether a
24
fair and impartial jury can be obtained. The jurors who
sat in the trial of this case were all thoroughly examined
and definitely stated that they would give to the petitioner
the benefit of the presumption of innocence. They were
fully examined so far as defense counsel desired as to any
knowledge or information they might have of the case.
At no stage of the proceedings in the trial court or on the
appeals did the petitioner offer any evidence to prove that
any juror was in fact hostile, unqualified or prejudiced by
the publicity, and, moreover, a period of two months and a
half intervened between the day of the petitioner’s arrest
and the beginning of the trial.
The presumption is that the jurors followed the in-
structions of the court. A distrust of the jury without any
affirmative showing that they were not to be trusted in
following out the court’s instructions is what the District
Court urges.
Mr. Justice Holmes said in Holt v. United States, 218
U. S. 245, at 251 (1910), 31S. Ct. 2, 6, 54 L. Ed. 1021:
“k * * Tf the mere opportunity for prejudice or cor-
ruption is to raise a presumption that they exist, it
will be hard to maintain jury trials under the condi-
tions of the present day * * *”
In United States v. Sorcey, 7 Cir. 151 F. 2d 899, 903
(1945), certiorari denied, 327 U. S. 794, 66 S. Ct. 821,
90 L. Ed. 1021, the court stated:
‘ok * * we must not permit the integrity of the jury to
be assailed by mere suspicion and surmise; it is pre-
sumed that the jury will be true to their oath and
conscientiously observe the instructions of the court,
* ok 36)?
In Opper v. United States, 348 U.S. 84, at 95 (1954),
75 S. Ct. 158, 165, 99 L. Ed. 101, the court said:
RSA ERR RES MEE, ORS, yfhtes SENET
—
25
“* * * Our theory of trial relies upon the ability of a
jury to follow instructions. * * *”
In Delli Paoli v. United States, 352 U. S. 232, 242
(1957), 77S. Ct. 294, 300, 1 L. Ed. 2d 278, the court said:
‘“* * * Unless we proceed on the basis that the jury
will follow the court’s instructions where those in-
structions are clear and the circumstances are such
that the jury can reasonably be expected to follow
them, the jury system makes little sense. Based on
faith that the jury will endeavor to follow the court’s
instructions, our system of jury trial has produced
one of the most valuable and practical mechanisms
in human experience for dispensing substantial
justice.”
In the instant case, the prospective jurors were ques-
tioned at very great length by both counsel for the State
and the defense, and the Court. In fact, there are three
volumes of the Bill of Exceptions, totaling hundreds of
pages, setting forth such detailed examination. The fact
that prospective jurors had read something about the case
before they were sworn as jurors did not necessarily dis-
qualify them. We know of no principle of law which ex-
cludes such jurors from service merely because they had
previously read or heard something about the case. The
persons who could hear the evidence without bias or preju-
dice and could decide the issues fairly and impartially were
seated. Those who could not, were excused.
It was held in Irvin v. Dowd, supra, 6 L. Ed. 2d, at p.
756:
“It is not required, however, that the jurors be totally
ignorant of the facts and issues involved. In these
days of swift, widespread and diverse methods of
communication, an important case can be expected
to arouse the interest of the public in the vicinity, and
scarcely any of those best qualified to serve as jurors
oie,
tf ess
26
will not have formed some impression or opinion as to
the merits of the case. This is particularly true in
criminal cases. To hold that the mere existence of
any preconceived notion as to the guilt or innocence
of an accused, without more, is sufficient to rebut the
presumption of a prospective juror’s impartiality
would be to establish an impossible standard. It is
sufficient if the juror can lay aside his impression or
opinion and render a verdict based on the evidence
presented in court. Spies v. Illinois, 123 U.S. 131, 31
L. Ed. 80, 8 S. Ct. 21, 22; Holt v. United States, 218
U. S. 245, 54 L. Ed. 1021, 31 S. Ct. 2, 20 Ann. Cas.
1138.”
The process of impaneling the jury in the Sheppard
case demonstrated that there was no unusual difficulty in
securing a fair and impartial jury. The analysis of this
process is briefly stated in the opinion of the Court of |
Appeals of Cuyahoga County as follows:
“The record in this case discloses that a special
venire was called for the trial of this defendant as
provided by Sec. 2945.18 R. C. Seventy-five names
were drawn from the jury box. Of this number, 11
were immediately excused for justifiable reasons or
were not found, and could not be summoned (three in
number) by the sheriff. Of the remaining 64, 13 were
excused because they had formed a firm opinion as to
the guilt or innocence of the accused and 10 were
likewise excused because they were opposed to capital
punishment. Sixteen others were excused for cause.
“The State used four peremptory challenges and
the defendant five. As is provided in Sec. 2945.21
the State in a homicide case where there is but one
defendant, is entitled to six such peremptory chal-
lenges and the defendant a like number so that when
the jury was sworn, the defendant left the right to
one peremptory challenge unused. From the fore-
going analysis of the venire of 75 electors called in
this case, four of those called were not needed in
ET et), Meee gt Ed a Ce Sey
Pied aE PEE ae ee aR get “OR EI urpemaRRNteE tam mere Rts ste MOR
_—_
27
impaneling a jury of 12. Such jury was selected as
provided by law and sworn and accepted by the de-
fendant to well and truly try and true deliverance
make between the State and the defendant.
“The parties agreed to select two alternate jurors
as provided by Sec. 2313.37 R. C. The four remaining
jurors of the original list, together with an additional
venire of 24 summoned as provided by law, were
used for this purpose. Of the 24 summoned, eight
were called and questioned together with the four
from the original venire, in impaneling the two alter-
nate jurors. Of those examined, three were excused
for holding a firm opinion of the guilt or innocence
of the accused, four were excused as being against
capital punishment, one was excused on challenge
for cause and each side used one peremptory chal-
lenge. (Each side had the right to excuse two pro-
spective alternate jurors peremptorily under the
provisions of Sec. 2313.37 R. C.)
“The analysis of the impaneling of the jury in this
case where but 16 prospective jurors out of 72 ex-
amined could not sit because they had prejudged the
guilt or innocence of the accused, clearly shows that
there was no difficulty whatever in impaneling a fair
and impartial jury.” (Appendix, Vol. I, pp. 60a-61a. )
No matter when or where tried, the Sheppard case
would have attracted widespread publicity. This was in-
herent in the very nature of the case itself. The right to
grant a change of venue lies in the sound discretion of the
trial court. The trial court stated on the motion for new
trial in ruling on the denial of the motion for change of
venue and/or for a continuance:
“(3) Denial of change of venue requested by de-
fendant. The request, when made, was based upon
the claim that xtraordinary public attention centered
upon the case in this county by the various media of
news made the securing of a fair and impartial jury
PE REALL OLE GL LIN
—
28
in this county impossible. It is a matter of common
knowledge that the case commanded that same at-
tention throughout Ohio and the United States of
America. It commanded very much attention through-
out the free world. Chief counsel for the defense con-
ceded and asserted this to be a fact and stated fer-
vently that the defendant could not have a fair trial
in Ohio, or even in the United States. The only con-
clusion from that assertion must be that the defend-
ant cannot be tried at all on an indictment for Murder
in the First Degree. Such a claim furnishes its own
answer.
“Seldom indeed has there been a case about which
the average citizen was so confused by the published
stories, or more uncertain about what the facts ac-
tually were. With present-day means of communica-
tion the same precise stories were simultaneously
published in every city and county in the State and it
certainly will not be denied that Cuyahoga County
is the most liberal county in the State and, as a result,
the best in which to conduct a trial involving a much
publicized charge of crime, whatever its nature. It is
to be borne in mind that no issues which break into
flames and which tend to produce passion and prej-
udice were involved in this cause. No issue of race,
corruption, killing an officer, or the like, was in-
volved—what actually was involved was a mere mys-
tery—-a ‘whodunit.’ The only safe and sure way to de-
termine whether a fair and impartial jury can be se-
cured is to proceed to impanel one. The court re-
served ruling on the motion pending such an effort
and became convinced, and is still convinced, that an
intelligent, sincere, patriotic and fair jury was impan-
eled. Upon that being accomplished the court over-
ruled the motion and believes such action was not er-
ror. Section 2945.06 Revised Code of Ohio provides
that a person charged in a case such as this may waive
trial by jury and elect to be tried by a panel of three
judges. While not challenging the right of a defend-
ELLE LLM ATE LA LEIP ENEH ELISE LT IIE IE TEL AE LE EE IE RL EMRE IT EF —
29
ant, in a proper case, to a change of venue it does
seem that the lack of confidence in any jury anywhere,
coupled with the failure to elect to be tried by a panel
of three judges, smacks of objection to any trial at all.
(Emphasis ours.)
“(4) Error in denying application for continuance.
The crime charged in the indictment occurred on July
4. Trial started October 18. Defendant’s counsel had
been engaged and active from a time within hours fol-
lowing the crime and long before defendant’s arrest.
Seventy-five prospective jurors had been summoned
with full knowledge of all counsel long before any
application for continuance was filed. The only ground
stated for a continuance was ‘to permit the extraor-
dinary publicity to quiet down.’ It was not claimed
that counsel were not prepared for trial nor was any
suggestion made as to who was going to ‘quiet down’
the publicity, nor when or how.” (Appendix, Vol.
I, pp. 35a-36a.)
There was no assurance that the publicity would not
continue if a motion for a continuance was granted. Fur-
ther, the trial court was not required to speculate as to
whether a trial at a later date would result in more or
less publicity.
The Constitution provides that the defendant in a
criminal case is entitled to a speedy and public trial. As it
was, the petitioner was not brought to trial until three
and a half months after the crime was committed, and the
trial court was not required, in view of the Constitutional
provision, to delay the trial indefinitely, otherwise the peti-
tioner could be heard to complain that his constitutional
right to a speedy and public trial was violated.
As stated in the opinion of the Supreme Court of
Ohio on this case:
“At the outset of the trial, in response to defend-
ant’s motion for change of venue, the trial court said:
30
‘The motion for change of venue will be held in
abeyance, and we will proceed at 1:15 this after-
noon in an effort to determine whether or not we
can secure a fair and impartial jury. If we are not
able to do that, there will be no question in this
court’s mind at all but what this case ought to go
out of Cuyahoga County, whatever may be the
effect of that.’
“At the conclusion of the impaneling of 12 jurors,
the motion for change of venue was renewed (for the
third time), at which time, in overruling the mo-
tion, the trial court said:
‘That the best evidence in the world is the effort to
select a jury, and what we get here is a picture that
has taken almost two weeks of time. The court is
thoroughly satisfied that we have a fair and impar-
tial group of people to try this case, and I doubt if ‘
under any conditions at any time anywhere in this
state you could have a better looking group of peo-
ple and a more intelligent group of people, as a
whole, to try a case of this kind, and the court is
thoroughly satisfied that they are a group of fair
and impartial people who can properly try this case
under the guidance of the court, and I hope he
will be able to give them that in the manner that
it ought to be given.’
“The same motion, advanced for the same reason,
was renewed on five other occasions during the trial,
and the trial court in each instance overruled the mo-
tion.
“We believe the trial court was justified in those
rulings. In Townsend v. State, 17 C. C. (N. S.), 380,
25 C. D. 408, affirmed without written opinion in 88
Ohio St. 584, 106 N. E. 1083, it is said:
‘The examination of jurors on their voir dire affords
the best test as to whether or not prejudice exists
in the community against the defendant; and where
it appears that the opinions as to the guilt of the de-
SUS a Sch Ta cia a ae Re a ee a etek Maas ca il Mra RRR
—
31
fendant of those called for examination for jurors
are based on newspaper articles and that the
opinions so formed are not fixed but would yield
readily to evidence, it is not error to overrule an
application for a change of venue.’
“For example, in Richards v. State, 43 Ohio App.
212, 183 N. E. 36, it was held that the exercise of the
right to order a change of venue lies in the trial court’s
discretion, and that a refusal to order a change of
venue without prejudice until it can be determined
whether a fair and impartial jury can be impaneled is
not an abuse of discretion. See also, Dorger v. State,
40 Ohio Opp. 415, 179 N. E. 143; State v. Stemen, 90
Ohio App. 309, 106 N. E. (2d) 662; State v. Deem,
154 Ohio St. 576, 97 N. E. (2d) 13.
“If the jury system is to remain a part of our
system of jurisprudence, the courts and litigants must
have faith in the inherent honesty of our citizens in
performing their duty as jurors courageously and
without fear or favor. Of the 75 vrospective jurors
called pursuant to this venire only 14 were excused
because they had formed a firm opinion as to the guilt
or innocence of the defendant. A full panel was ac-
cepted before this venire was exhausted, and defend-
ant exercised but five of his allotted six peremptory
challenges.
“In the light of these facts, and particularly in the
light of the fact that a jury was impaneled and sworn
to try this case fairly and impartially on the evidence
and the law, this Court cannot say that the denial of
a change of venue by the trial judge constituted an
abuse of discretion.” (Appendix, Vol. I, pp. 110a-
11la.)
The District Court states (Appendix, Vol. III, p. 439a)
that the Supreme Court of Ohio failed to consider in this
case that the circumstances were urusually compelling
and the assurances of the jurors could be disregarded, such
32
as was done in Rideau, supra. The Supreme Court of
Ohio was bound by Section 2945.83 of the Revised Code
of Ohio to review the instant case on the record, not by
reading the newspapers. And there were no unusual com-
pelling circumstances in the Sheppard case requiring a
disregard of the assurances of the jurors on the voir dire.
The petitioner did not confess to the crime, not even over
television as was done by the defendant in the Rideau
case, nor is there any showing in the instant case that any
juror sat on the trial who was unqualified or unaccepted
by the defense, as was the situation in Rideau.
Further, the instant case is not comparable with Irvin
v. Dowd, supra, upon which the District Court relied. In
the Irvin case, the prosecutor and police officials issued
press releases stating that the defendant had confessed to
six murders. At the trial, the jury panel consisted of 430
persons; 268 of these were excused for cause as having
fixed opinions as to the guilt of the petitioner; and 8 of the
12 jurors who ‘finally served on the jury admitted on voir
dire that they thought petitioner was guilty.
And there is no comparison of the facts in Irvin,
supra, to the facts surrounding the selection of the jury in
the Sheppard case. None of the pre-trial newspaper articles
in the instant case contain any releases from the prose-
cuting authorities that the petitioner confessed. In fact,
the petitioner garnered a great deal of publicity before
the trial, minimizing any part he may have had in the
commission of the murder. Omitted from the selection by
the District Court of pre-trial newspaper publicity, is the
amount of publicity put out by the defense prior to the
trial. Innumerable stories appeared emanating from the
petitioner, his counsel, his relatives and his friends, mini-
mizing any claim that the petitioner may have committed
the murder. The Court of Appeals has listed some of these
favorable stories.
LAE MAES ON PEPE IEEE ILS EIT LED NAIM ME IME OED IOD IN FN es) PSE
—
33
The District Court includes under this finding on pre-
trial publicity, a newspaper article which appeared in the
Cleveland Press, October 23d, entitled “BUT WHO WILL
SPEAK FOR MARILYN,” (considered by this Court in
the former petition), and claims that this article was
one of the most prejudicial. (Appendix, Vol. III, p. 436a.)
Apart from the fact that there is no showing that the trial
jury read the article, there is nothing in the article con-
taining any facts which would be probative of the peti-
tioner’s guilt of the crime of second degree murder of
which the jury found him guilty on the evidence produced
in open court.
The District Court says (Appendix, Vol. III, p. 443a)
that an overt example of the prejudice against the pe-
titioner was the newspaper report that “the spectators
cheered wildly” and “hugged and kissed the Coroner”
when he ordered petitioner’s counsel ejected from the in-
quest. Counsel for the petitioner refers to the inquest held
in the school auditorium in Bay Village and proceeds to
distort the nature of the proceedings and what occurred.
Ignored entirely is the testimony of Dr. Gerber that he had
made arrangements for the inquest and had actually issued
subpoenas before the Press editorial appeared, and that the
reason it was held in Bay Village was that most of the
witnesses lived there and it would be convenient.
Untold is the fact that the hearing at the inquest was
in perfect order during the testimony of the petitioner, his
parents, his brothers, the doctors, Don Ahern and Nancy
Ahern, Mayor and Mrs. Houk and the Bay Village officers.
There was no disorder until the last few minutes of the last
day of the public hearing when Dorothy Sheppard was re-
called to testify further. It was brought about by Mr. Cor-
rigan, counsel for petitioner, who sought to direct the re-
porter to insert certain matters into the record. Mr. Corri-
—
34
gan was told not to do so and was cautioned that if he per-
sisted, he would be asked to leave. He not only persisted,
but ordered the reporter to make the insertions in the
record, refused to desist when so requested, refused to
sit down when so requested and challenged the authority
of the Coroner to put him out. The Coroner had no alter-
native and was obliged to have Mr. Corrigan removed
from the hearing room.
This occurred within a few minutes before the close
of the hearing. Furthermore, the inquest was held on
July 22d, 23d and 26th and there was at that time no in-
dictment against the petitioner. The disturbance at the
inquest which Mr. Corrigan created has no possible bear-
ing on the trial of this case, nor did it prevent the peti-
tioner from having a fair and impartial jury, nor is there
any showing that the individuals who showed affection
for the Coroner at the inquest, sat on the jury.
It is suggested in the petition (p. 18) that Estes v.
Texas, 14 L, Ed. (2d) 543 (1965), applies to the inquest
held by the Coroner. The events of a two-day pre-trial
hearing in court on motions to prohibit television coverage
and to postpone the trial were the subject of consideration
in that case. The Coroner's inquest was held months be-
fore the trial, not in court, and has no bearing on whether
the petitioner was denied due process on the trial.
And of a certainty, there is no proof in the record,
nor was any affirmative proof presented to the District
Court by the petitioner, no “demonstrable reality,” that
the jury selected in this case was not a fair and impartial
jury, or that the publicity before trial influenced the
jurors who were finally selected by both sides on the two-
week searching voir dire examination, The District Court's
finding to the contrary is merely a matter of speculation,
with no basis in fact.
EN EAR ETS NTL OLE GE LL LILO LDL IE EIN LE IE IRENE PGS
35
B. Publicity During Trial.
Counsel for petitioner again indulges in inferences
and faulty assumptions with nothing specific being shown
that a fair and an impartial jury was not maintained
during the trial. And, had the District Court examined
the record, it would have found that counsel for the peti-
tioner who were present throughout the trial and who
were in a position to know and observe, were satisfied
that they had a fair and impartial jury that was not being
influenced by anything other than the evidence and the
repeated instructions of the trial judge, for counsel for the
petitioner stated to the jury in argument:
“May I take this opportunity—as I started to say,
may I take this opportunity to congratulate you on
the splendid attention, the tireless effort you have dis-
played during these nine weeks. You have been
deprived, probably, of many comforts that you ordi-
narily enjoyed in and around your home with your
family because of the admonitions that you have re-
ceived throughout the trial by his Honor, Judge Bly-
thin.
“The purpose, ladies and gentlemen, of those
admonitions was that we could come to this point in
the lawsuit where your minds would be free, your
minds would be open, and that you could take into
consideration all the facts and all the testimony that
has been submitted to you without any outside in-
fluence, and I am sure, and I say this to you sincerely,
because I have had the opportunity of observation
during this entire period, that you have done just
that.” (R. 5371-5372.) (Emphasis ours.)
The District Court said, “If ever there was a trial by
newspaper, this is a perfect example.” (Appendix, Vol. III,
p. 453a.) The court should become acquainted with the
facts as reflected in the record, showing who was largely
—
36
responsible for the publicity during trial. Certainly, there
is no evidence that either the trial judge or the prosecution
were trying the case in the newspapers. Dr. Steve Shep-
pard, petitioner’s brother and a prospective witness, so
persisted in trying to have the petitioner’s case tried in the
newspapers that the trial court was required to admonish
him that if he did not desist, he, being a witness, would be
excluded from the courtroom (R. 3722). This all took
place in the Court’s chambers just before the Considine
broadcast was brought to the attention of the court, and
the Court said:
“Let it be now understood that if Dr. Steve Sheppard
wishes to use the newspapers to try his case while we
are trying it here, he will be barred from remaining
in the court room during the progress of the trial if he
is to be a witness in the case.” (R. 3722.)
During the trial most of the publicity was given out
by the defense. Petitioner had a former newspaperman
as one of his counsel, and as a former newspaper: man,
defense counsel knew very well how to get favorable
stories in the public press, and he was quite successful.
He held press conferences daily, and frequently more than
once each day; and, with his client, posed for hundreds of
pictures which, together with favorable personal stories,
appeared in all types of news media. The amount of pub-
licity so put out by the defense was enormous, and far
outshadowed the attention given the State. Defense coun-
sel found that by continually denouncing the newspapers
and public officials, he could get an even greater amount
of publicity. Mr. Corrigan’s skill in the art of publicity is
demonstrated by the innumerable stories that appeared,
emanating from the petitioner, his counsel, his relatives
and his friends. The bales of newspapers offered by the
defense in support of their motions show these favorable
37
personal stories and the innumerable photographs for
which the petitioner and his counsel posed.
Mr. Corrigan also demonstrated his accomplishments
as an actor by pretending to object to the pictures and
reading his objection into the record. The photographs
themselves, and the stories which accompanied them, show
complete acquiescence and pleasure. That the objection
made for the record was without justification and mere
pretense is proved by the testimony of Julian Wilson dur-
ing the hearing on the motion for new trial. Mr. Wilson
was a photographer for the Associated Press, assigned to
this trial, and testfied on the motion for new trial that he
made many pictures of Dr. Sam Sheppard and consider-
ably over a hundred of Mr. Corrigan (R. 7088). His testi-
mony speaks for itself:
“Q. Now, did you take any pictures in this court
room while the court was in session?
A. No, sir, I did not.
Q. Now, while the court was not in session, dur-
ing recess or after adjournment, did you take pictures
in this court room and around this building?
A. Many times.
Q. Did you take pictures of Mr. Corrigan?
A. Yes, sir.
Q. About how many times?
A. Roughly—it would run considerably over a
hundred negatives.
Q. About a hundred negatives. And of Dr. Sam
Sheppard?
A. I made many pictures of him.
Q. And Mr. Garmone?
A. He, too, I have made many pictures of.
Q. Now, did Mr. Corrigan ever object to your
taking any of these pictures?
A. A few times he has objected.
Q. When was that?
A. About the middle of the trial or towards the
—
38
end of it, Mr. Corrigan—we were instructed that Mr.
Corrigan didn’t want any pictures made of himself,
the defense, or the defendant.
Q. How many pictures had you taken without
his objection before you received those instructions?
A. Oh, many.
Q. More than 50?
A. Id think so.
Q. And after you received the instructions, did
you stop taking pictures?
. Yes, sir.
And how long did that continue?
About a week and a half, two weeks.
Then what occurred?
We asked Mr. Corrigan’s permission.
And did you get it?
. Yes, sir.
And then resumed taking pictures?
. Yes,
. How many pictures did you resume taking—
did you take after you resumed taking those pictures?
A. I'd say not as many as before because we
didn’t need as many pictures.
Q. More than 20 or 25?
A. About that.
Q. Now, with respect to the defendant, Dr. Sam
Sheppard, is the number of pictures that you took
before the objection by Mr. Corrigan about the same
as what you took of Mr. Corrigan?
A. About, yes.
Q. You took about 50 before. Then there was
this period when you didn’t take any pictures because
of the objection, is that correct?
A. That’s true, sir.
Q. And then did you later resume?
A. Yes, sir.
Q. With whose permission?
A. Well, when we got Mr. Corrigan’s permission,
we resumed taking pictures.
5 os wes a “s ek
LENE SE AIEEE NLL LO RAPPER ET LEE, REN AAI Pee a «tl
OP OPOPOPOD>
4
FEC eM SE
ete exe.
39
Q. And about how many did you take after you
got permission?
A. Somewhere around 15, 20, 25.
* * *
Q. Did you ever take a picture of either Dr. Sam
Sheppard or any of his counsel over their objection?
A. No, six.
* e *
The Court: May I have just one question?
Were you present at the conference which the
Court had with photographers prior to the opening
of the case?
The Witness: Yes, sir, I was.
The Court: And at which the Court stated
what the rule would be as to taking pictures during
the trial?
The Witness: I was.
The Court: Do you recall what that was as to
taking pictures within the court room and of the
defendant and his counsel?
The Witness: Yes, I do recall.
The Court: All right. State it.
The Witness: Your ruling, sir, was that no
pictures would be made at any time when the court
was in session, and you also requested that we
make no pictures of the defendant or the defense
or anyone without their permission. I believe that
is the gist of the thing.
The Court: That’s correct.” (R. 7087-7091.)
It is obvious from the record that objections by the
defense to the newspaper publicity were quite pro forma
and mere pretense.
The District Court injects into its decision (Appendix,
Vol. III, pp. 444a-445a) a newspaper article and certain
newspaper headlines, as though they were before the jury
as evidence in the case, and concludes that the petitioner
was prejudiced by being referred to in the newspaper
40
article as a Dr. Jekyll and Mr. Hyde, and that such head-
lines were slanted against the petitioner. This article was
considered by this Court in the former petition. There is
no proof nor was there any proof before the District
Court that the jury read this article or were influenced by
it in reaching their verdict. This witness did testify but did
not disclose such an incident.
On the voir dire, at the outset, the court instructed
the prospective jury that the defendant was presumed to
be innocent unless and untill he was found by a jury to be
guilty of the crime beyond a reasonable doubt and that
finding was to come, not from anyone’s notions or outside
information, but must come on the basis of testimony
heard from the witness stand (R. 31). The prospective
jury were further instructed that they were not to discuss
this case or any feature of it with anyone; that they were
not permitted to have anyone speak to them about it; that
they were not to remain anywhere where other people
were speaking of it among themselves; and that they were
not to speak of it among themselves (R. 35). The prospec-
tive jury were also questioned concerning newspaper
articles and radio broadcasts and whether they would be
influenced or swayed by anything anybody said outside of
the court room (R. 167-168, 214).
The prospective jury were also questioned as tc
whether they would consider the question of the guilt ot
innocence of the defendant solely on the basis of the evi:
dence that was received in the courtroom from the witnes:
stand (R. 236). And they were further questioned as tc
whether they would follow the instructions of the cour
not to read anything about the case in any of the news:
papers and not to listen to any discussion of the case or
the radio or television (R. 279).
EB NORCO NORCROSS ENOL SRENEE 6 IRAE nN SRR 2 Fs acne AO
41
The court said to the jury at Record 1452:
“A fair and an impartial juror is a juror who can sit
here patiently and who can listen to all of the evi-
dence that is produced in a case and to the instruc-
tions of the court as to the law applicable to the
particular case, and who can honestly close out the
rest of the world for the moment and bring a curtain
down on all information he may have about the mat-
ter from other sources, and be guided entirely by the
evidence and the instructions of the court as to the
law applicable to the particular case” (R. 1452).
And when the jury was impaneled, the court in-
structed the jury not to talk about the case to anyone; not
to permit anyone to talk to them about it; not to remain
anywhere where other people were talking about it them-
selves, in the jury room or elsewhere; that it was each
one’s duty as an individual juror and responsible citizen
to keep his own counsel, to listen to the evidence that came
from the witness stand and the instructions of the court
as to the law, and wait until all those are complete before
they formed any opinion or judgment whatever as to the
outcome of the case, which opinions and judgments were
to be expressed only in the jury room after the case was
finally submitted to them for deliberation and decision.
The jury were further told by the court that during the
pendency of the trial, they were not to listen to comments
about it over the radio or otherwise and not to read the
newspapers (R. 1591). The court said: “You will get here
the only facts that you are to consider in the determination
of this case” (R. 1592).
Each juror had agreed that he or she would disregard
everything other than the evidence received in open court
and would, in conformity with the instructions of the court,
render a fair and impartial verdict. The jurors took the
42
oath required by law and there is not a shred of evidence
in the record, nor was there any affirmative proof before
the District Court that each and every juror did not fully
and completely abide by the oath so taken.
There is not a particle of evidence in the record or
before the District Court to show that the jury was in any
way influenced by reports or stories in the newspapers or
over the radio, or anything else, or that the jury or any
juror was biased or prejudiced by any such stories or
broadcasts.
Although several jurors were subpoenaed and were
thoroughly interrogated by defense counsel on the hearing
on the motion for new trial, not a word of testimony was
produced to justify the claim that the jurors were influ-
enced by anything other than the evidence produced in
open court in reaching their verdict. The District Court’s
finding that newspaper publicity during the trial preju-
diced the petitioner is based upon mere speculation and
suspicion, with no basis in fact. Certainly, it is not sup-
ported by the record. A fair and objective analysis of
stories to the public will disclose that they made no effort
to slant the stories, certainly not to influence the jury in
arriving at their verdict. Nor is there any proof whatso-
ever offered by the petitioner that the jury was influenced
by anything other than the evidence produced in court in
reaching its verdict.
The District Court holds that the trial judge com-
mitted error when he failed to question the jury regarding
the Robert Considine broadcast. This incident was before
this Court for consideration in the former petition. Urged
for the first time in the Supreme Court of Ohio by the de-
fense, as error, was the refusal of the trial court on motion
for continuance in the 5th week of trial to ask the jurors
if they heard a broadcast by Bob Considine over Station
@ r 4 Reb Ja Pg eit
BAGS NGS NPS EM STS SET GRP PT LON, UME RIE SORE SITs PPAR DESL OR OOS RE IIR, SEBS, 29 EES
Sc ee Tp RS SIMO ee ee EE Ty CN RN ey PO es Ty 4 A
—
43
WHK in which there was something said about the Shep-
pard case. This matter was brought up in the court’s
chambers and neither the court nor the prosecutors had
any knowledge whatsoever of the alleged broadcast. Mr.
Corrigan, counsel for the petitioner, complained that Bob
Considine had paralleled a denial of the petitioner as set
forth by Officer Schottke with a denial of Alger Hiss when
he was confronted by Whittaker Chambers, without stating
that Dr. Sheppard was in bed in the hospital at the time of
his denial, while Mr. Hiss was strong, mentally and physi-
cally.
Apart from this assertion of counsel, no proof what-
ever was submitted to the court as to the exact nature of
the broadcast, although Mr. Considine was available, it
being conceded by the defense that he was in daily attena-
ance at the trial. When the court stated: “We are not going
to harass the jury every morning,” Mr. Corrigan then
responded, “I can’t help it, Judge. If you don’t that’s all
right with me. I make my exception.” (R. 3725.)
That it was not error for the court to refuse to inter-
rogate or poll the jurors during the trial as to whether
they had read a newspaper article or heard a radio broad-
cast such as the Considine broadcast, is affirmed by the
annotation in 15 A. L. R. (2) 1152, wherein it is stated:
“The present annotation is concerned with the
question of whether, during a criminal trial, the
jurors may be interrogated or polled as to whether
they have read newspaper articles pertaining to the
alleged crime or the trial. As the title indicates, the
annotation involves the propriety of interrogation or
polling after impanelment, as distinguished from that
which occurs on voir dire examination.
“The few cases that involve this specific point all
uphold the trial court where it refuses to interrogate,
or refuses to let a party interrogate, the jurors as to
44
the reading of newspaper articles relating to the trial
or the crime. The decisions generally turn on the fact
that the trial court had instructed the jury not to read
the articles or that there had been no showing by the
moving party that the jurors had in fact read them.”
Whatever the news media, whether it be newspapers or ra-
dio broadcasts, the same principle should apply. As stated
in Trombley v. Langlois (R. I.), 163 A. 2d 25 (1960):
“An impartial trial is one in which jurors reach a ver-
dict upon a consideration of only those matters that
were introduced in evidence during the trial and
matters not so introduced, should not be brought to
their attention through an interrogation of the jury to
determine whether they have knowledge of allegedly
prejudicial material published in the newspapers.”
In State v. Hilliard, 89 Arizona 129, 359 P. 2d 66
(1961), it was held that the granting of the defendant's
request for interrogation of jurors during trial as to
whether they had read newspaper accounts, rested in the
sound discretion of the trial court and refusal to permit
poll was not error.
It was held in Ford v. U. S., 233 F. 2d (C. A. 5th Tex.)
56 (1956) that it is within the discretion of the trial court,
whether after impanelment during criminal trial, the
jurors may be interrogated as to whether they had read
newspaper articles. Refusal of trial judge to permit interro-
gation of jury regarding article was not error, where court
instructed jury at beginning of trial not to read “any stories
in the newspapers about the case.”
Reference is made to publicity of the family of Juror
Lois Mancini. This incident was considered by this Court
in the former petition. Furthermore, Lois Mancini was not
present during the visit of the reporter and did not par-
ticipate in the interview. We wish to also note that she
45
was merely an alternate juror and did not participate in
the deliberations or the verdict.
The District Court comments that during the trial
there was a broadcast by Walter Winchell in which he
related the story of a woman in New York who claimed
she had been a mistress of Sam Sheppard (Appendix,
Vol. III, p. 450a). This incident was referred to in the pre-
vious petition. At the request of defense counsel, the
court inquired of the jurors whether they had heard the
Winchell broadcast and two jurors responded that they
had. The jurors had no knowledge that Mr. Winchell was
to broadcast anything at all pertaining to the Sheppard
case or to Sam Sheppard. The two jurors who heard the
broadcast were asked by the Court: “Would that have any
effect on your judgment?” Both answered, “No.” The
Court stated:
“Have any of you, other than these two ladies, heard
anything about that broadcast last night? And I wish
to ask you two ladies in particular, and all of you in
general, to pay no attention whatever to that kind of
scavenging. It has no place, in my judgment, on the
air at all, but that is not for me to determine, but
surely it has no place whatever in our thinking or
considerations or thoughts in any way, shape or man-
ner in this case. Let’s confine ourselves to this court
room, if you please.” (R. 5429-5430.)
Upon the hearing on the motion for new trial and even
though several of the jurors had been subpoenaed, the de-
fense produced not a word of testimony to support their
claim that the jurors heard the Considine broadcast. There
is in the record no proof that any of the jurors were in-
fluenced by this broadcast or the so-called Winchell broad-
cast, or by anything else other than the evidence produced
in open court.
46
The Court of Appeals stated:
“The presumption that obedient to instructions,
the jurors ignored publicity during the trial has not
been overcome by petitioner. The only showing that
any of them encountered any of this publicity came
when the trial judge questioned the jurors about a
Winchell broadcast during the trial attributing mari-
tal infidelity to Dr. Sheppard. Two jurors advised
that they had heard the broadcast, but would not be
influenced by it, and an appropriate admonition on
the subject was given by the judge. Defense counsel
also requested interrogation of the jury as to their
knowledge of another broadcast in which one Consi-
dine made remarks derogatory to Dr. Sheppard. The
trial judge refused this request, observing that he
did not think the jury should be harassed with interro-
gation each morning. We believe that this action was
itself within the discretion of the judge, and that it
may indeed have been the best thing to do. A discreet
judge might well conclude that repetitive reference
and inquiry as to matters prejudicial to the defense
would harm rather than help. A substantial number
of lawyers skilled in the art of advocacy would, we
think, agree. Compare Estes v. United States, 335 F.
(2) 609, 615 (CA 5, 1964), cert. denied, 379 U. S.
964 (1965); United States v. Provenzano, 334 F. (2)
678, 696 (CA 3, 1964), cert. denied, 379 U. S. 947
(1964); Ford v. United States, 233 F. (2) 56, 61-62
(CA 5, 1956), cert. denied, 352 U. S. 833, 1 L. Ed. (2)
53 (1956). In any event, any effect that this limita-
tion of interrogation during trial might be thought
to have is dissipated by the opportunity accorded de-
fense counsel to interrogate jurors on their motion for
a new trial. Three of the jurors were thus questioned,
but counsel did not see fit to inquire into possible con-
tacts with trial publicity.” (Pet. App. A, pp. s.29-s.30.)
It is claimed that the trial court had a duty sua sponte
to sequester the jurors. There is no requirement under the
SETI IRPD L OPER G” ERG EIS Bt <a
ie Sty > ek apna aes
47
laws of the State of Ohio that a jury be sequestered during
the trial. In fact, the Ohio statute makes it a matter of
discretion on the part of the trial court. Section 2945.31
of the Revised Code of Ohio provides:
“After the trial has commenced, before or after the
jury is sworn, the court may order the jurors to be
kept in charge of proper officers, or they may be per-
mitted to separate during the trial. If the jurors are
kept in charge of officers of the court, proper arrange-
ments shall be made for their care, maintenance, and
comfort, under the orders and direction of the court.
In case of necessity the court may permit temporary
separation of the jurors.”
With the trial lasting over two months, there is no showing
that the trial court abused its discretion, nor was there any
request by the defense that the jury be sequestered during
the trial. To keep the jurors from their families for that
length of time would have imposed an unnecessary hard-
ship upon the jurors. Further, the fact is that there is no
affirmative evidence, nor did the petitioner offer any proof,
and the District Court points to none, that any juror read
any of the alleged prejudicial newspaper publicity during
the trial, contrary to the instructions of the trial court. No
claim was made by the defense in the state courts or on
certiorari that the trial court abused its discretion in not
sequestering the jury during the lengthy trial. Again,
whether a jury should be sequestered is a matter of state
legislation giving the trial court discretion.
Counsel for the petitioner cites Estes, supra, as appli-
cable to the fact that the jury was not sequestered in the
instant case. The Estes trial was a short trial and held
under Texas law. Defense counsel in the instant case could
have objected to any sequestration of the jury. The Court
of Appeals pointed out:
: *
“* * * We cannot speculate now whether able defense
counsel would have welcomed such a procedure, or
whether long insulation and confinement of a jury
trying a first degree murder case might be thought
more likely to lead to conviction and a death penalty
than permitting the jury the relaxation and refresh-
ment of living at home, even with the possible ex-
posure to extracurial publicity.” (Pet. Appendix A, |
s.9.)
The Trial Court stated on the hearing on the motion
for new trial:
“While this Court would not for the world mini- __
mize the importance of guarding this jury—or the __
jury in any other case—from annoyance or influence, __
he must express the thought that human beings,
whether serving as jurors or not, cannot be wrapped
in cellophane and deposited in a cooler during trial
and deliberation.
“The jury in the instant case was jealously
guarded throughout the entire proceedings and it is
worthy of note—and indeed decisive in this Court’s
judgment, that not a suggestion of influence upon the
jury is forthcoming from any person or agency. In-
terference or influence must be the test. If we are to
convict jurors without a scintilla of evidence of un-
due influence on them, it is now pertinent to halt and
ask ourselves what becomes of our faith in our de-
cent fellow-citizens and of what value is the jury
system at all.
“It is claimed that the jurors were. permitted to
separate on one or two occasions within the period of
their deliberations and were so photographed. Fore-
man Bird and Bailiff Francis testified that the so-
called separation of jurors was merely their momen-
tary division in the dining room of the hotel for the
purpose of photographing the men in one group and
the women in the other. It was in the presence of the
5 SS ERATE RAT AEE a ec IIE eS
SF
49
~ two bailiffs, was only a few feet in extent and there
was no communication of any kind with the jury by
the photographer. To term such a petty detail a ‘sep-
aration’ is stretching the imagination to a dangerous
point. It certainly is not the separation prohibited by
law and is hardly worthy of serious thought or com-
ment.
“The Court had complete confidence in the jury
in this case; it was protected at all times from any
possible approach, and its every movement and con-
duct would seem to be an eloquent demonstration of
the fact that it proved itself worthy of the confidence
placed in it to faithfully carry out the admittedly
tremendous responsibilities entrusted to it.” (Appen-
dix, Vol. I, pp. 44a-45a.)
The District Court claims that special note must be
given to the attempt of the newspapers to influence the
jury by taking photographs of the jury so that they would
look for their photographs in the newspaper and thereby
expose themselves to the prejudicial reporting (Appendix,
Vol. III, p. 453a). On the motion for new trial, the trial
court stated:
“Jurors were flash-photographed in their comings and
goings and it is difficult to know how that can be pre-
vented even if, indeed, it should be. Jurors are hu-
man beings and become citizens of special importance
when undertaking a signal public service. Not a single
complaint was registered by any juror in this connec-
tion and it is werthy of note that the defense does not
even claim that any juror was affected in the least by
it. Furthermvre, they were not flashed by agents of
the State nor on its behalf. Such exposures to public
attention are not matters of prejudice for or against
either the State or defendant but matters of news in-
terest to newspapers. They remain wholly neutral if
fed sufficient news or pictures of interest.” (App.,
Vol. I, pp. 40a-41a.)
———
50
The District Court comments that the newspaper ran
editorials praising the trial judge and that he was a canii-
date for re-election; that this certainly was an attempt to
Lring him around to their way of thinking. (Appendix,
Vol. III, p. 453a). And counsel for the petitioner infers in
his argument to this Court, that if the trial judge had not
been running for re-eiection to retain his post, and the
prosecutor had not sought election to the bench, the peti-
tioner would not have been convicted of this crime.
The state judge was not the trier of the facts in this
case. The verdict on the facts was rendered by a jury. Nor
is there any showing that the trial judge or the prosecutor
were, as a result of running for election, denying due proc-
ess to the petitioner. The Court of Appeals appropriately
said:
“Much has been made of the fact that the Shep-
pard trial begun on the eve of a judicial election at
which the trial judge and one of the prosecution staff
were candidates. We must assume that this is empha-
sized to imply that desire for victory may have led
the jury to conduct prejudicial to Dr. Sheppard’s
rights. We would have to entertain a low estimate of
the integrity of our fellow judicial officers to join in
any such inference. In most of the states of the Union
it is traditional that those who occupy judicial office
be required from time to time to account for their
stewardship by submitting to election. If it is sug-
gested that we presume that an elective judiciary can
preserve constitutional rights only at some unde-
fined distance in time from election day, we reject
such suggestion out of hand. As realists we know that
those who seek reelection to judicial office hope that
their conduct will find public approval, but we do
not think that judicial misconduct would be more
attractive to the electorate than conduct marked by
the integrity which we as judges like to believe is
a
51
possessed by electe1 judges as well as those who have
the security of tenure during ‘good behavior.’ Nor
are we prepared to presume that any judge is so far
enamored of his position as to betray its responsibili-
ties, no matter what he thinks would most please the
electorate. Additionally, it is not inappropriate to note
that much of the publicity complained of, and the
actual taking of testimony at Dr. Sheppard’s trial,
occurred after the election had been held. For like
reasons, we must reject Dr. Sheppard’s repetition in
this Court of his broadside charge ‘that the elective
judges of Ohio were so biased and prejudiced against
him that he could not expect fair adjudication of his
case in state courts. * * *’” (Pet. App. A, pp. s.41-
s.43.)
The District Court claimed that the requisite atmos-
phere for a fair trial did not exist. Counsel for the peti-
tioner has submitted a wholly distorted picture of the
arrangements made by the trial court before trial to govern
the news media. For a fair and objective statement per-
taining to such arrangements, we direct the attention of
this Court to the words of the trial judge in his memo-
randum on the motion for new trial.
Regardless of what action was taken by the trial court,
it was certain that all of these newspaper reporters were to
be present and that demands would inevitably be made
upon the trial court by all types of news media. When the
affidavit in support of a motion for new trial (App. A, pp.
s.158-s.164) was filed with the trial court, the trial Judge
stated, in ruling upon the motion for new trial:
“Realizing that the case had caught the public
imagination to an extent leading national and, indeed,
international news media to decide to fully ‘cover’
the trial, and having requests for space for many of
them, the Court decided to make proper arrange-
ments before trial and to control the situation so as
ery
to minimize and, if possible, eliminate confusion dur-
ing the trial. The court room is small.
“The Court assigned specific seats to individual
correspondents in the rear of the court room and
back of the trial area, and issued orders that there
was to be no crowding or congregating at the front
end entrances (one on each side of the bench) of the
court room; that there was to be no passing back
and forth through the trial area and that all
entries to and moving out of the court room be via
the public doorway in the rear of the court room,
Members of the defendant's family were accommo-
dated with seats at all times during the trial. The
same was accorded members of the family of the
murdered Marilyn. Members of the general public
were admitted to the extent of the seating capacity of
the court room and a scheme of rotation was estab-
lished so that many persons attended some sessions
of the trial and no favored members of the general
public were present at all times, nor permitted to be.
“Rules were prescribed for photographers and
representatives of radio and television stations. They
were cautioned that no cameras were to be permitted
in the court room excepting in the morning before
the convening of court and at the close of the day
after adjournment, and that in no event were pictures
of the defendant to be taken in the court room at
any time excepting with his consent or that of his
counsel,
“The Court's arrangements and orders were car-
ried out with one or two simple insignificant excep-
tions, due to over-enthusiasm. The defendant and his
chief counsel were far more gracious to the press,
photographers and gallery than was the Court. A
very large number of pictures of the defendant, his
family, counsel and friends were taken in the court
room (outside of court session periods) with their
permission and without complaint. Counsel for the
a
, .
eee ee eee eee eee Eee ere
defense held press conferences in the court room with
cameras clicking; all to the apparent delight of coun-
sel for the defense, and, naturally, without protest.
“Julian Wilson, a photographer for the Associated
Press, testified on this point at the hearing had on the
motion and supplemental motion. His testimony
stands wholly unchallenged and it states the pro-
cedure followed with perfect clarity.
Coe OR
“Some space outside of the court room which
could be spared for the moment without interference
with the public service was used by publicity agencies
for their typewriters and other equipment but it is
definitely not true, as stated in the motion herein,
that:
‘The Assignment Room, where cases are assigned
for other causes to court rooms, was assigned by
the Court to reporters and telegraphers.’
“Some generally unused space in the Assignment
Room was so assigned. Neither person, record, nor
piece of equipment in the Assignment Room was
moved, removed or displaced and the Assignment
Room functioned normally throughout the entire
period of the trial of this cause. One of the real pur-
poses of assigning that space to the uses mentioned
was to remove them entirely from the immediate
court room area. They were out of the corridors lead-
ing to the court room and permitted free movement
of the public and visitors within the building, whether
there in connection with this case or otherwise, wholly
unaffected by the Assignment Room space activity.”
(Appendix, Vol. I, pp. 39a-41a.)
The Ohio Court of Appeals in its opinion, stated:
“It is claimed also that the court arranged the
courtroom to accommodate a great many represent-
atives of the press, radio and television and other
news-disseminating agencies, thus restricting accom-
modations available for others. The record shows
—
54
that the defendant’s family was provided for and
that the defendant’s brother Dr. Stephen Sheppard,
although a witness, was permitted by order of the
court to remain in the courtroom throughout the trial.
The court in this case was presented with a very diffi-
cult matter because of the unusual amount of cover-
age attempted by the press, radio and television
agencies. The arrangements made by the court were
within its sound discretion. Certainly the defendant
was afforded a public trial, and from a reading of the
record, we cannot say that the court in seeking to
maintain an orderly proceeding abused its discretion
in directing the courtroom arrangements.” (Appen-
dix, Vol. I, p. 84a.)
The Court of Appeals stated:
“The District Judge also concluded that news cov-
erage of the trial deprived petitioner of his constitu-
tional rights because it contributed to a ‘carnival at-
mosphere.’ Stress is laid on the manner in which the
trial judge allocated the seating available in his small
courtroom, giving most of it to the press and install-
ing special tables for them. Now, with the reflection
and the hindsight that an interval of ten years has
provided, and after all of the appellate tribunals have
found the judge’s conduct in this regard without con-
stitutional fault, it is asserted that the trial judge
should have done a better job. We are not told what
alternative measures he should have adopted. Cer-
tainly he was without power to slake the public inter-
est. Should he then have selected news representa-
tives who would be regularly favored with admission
to the courtroom, and let each day’s trial begin with
a scramble by the unfavored to gain access? Should
he have moved the trial out of the courtroom into
some public hall or auditorium where the public and
the press could be accommodated at a greater distance
from the jury and counsel? Shall we now speculate
whether such planning would have reduced or aug-
mented the so-called ‘carnival atmosphere’? It is as-
HOSED, SUNIL, 2 RNR MEL HN A ciiinnidiiiandiinini aaa
f ,
serted also that too many photographs were taken of
the jury, the defendant, and counsel. No photographs
were allowed to be taken in the courtroom while the
court was in session. In view of today’s increasing
dissatisfaction with the aggressive performance of
many of the news media, it may indeed be regretted
that the trial judge did not enforce more rigid disci-
pline of its representatives. But we can no more find
impropriety of constitutional magnitude in what oc-
curred than could the other appellate courts that have
been challenged to do so.
“The claim that the trial judge contributed to a
‘carnival atmosphere’ is further supported by empha-
sis on the installation in the courtroom of a micro-
phone and loudspeakers. This is surprising in view of
the fact that it has become regular practice to install
such electronic equipment in modern courtrooms, in-
cluding those occupied by the United States District
Courts. We find no mefit in this claim.” (Pet. App.
A, pp. s.30-s.31.)
The Court of Appeals said further:
“The opinion of the District Court additionally
criticizes activities of the press as follows:
‘The Court need not be naive, and it does not stretch
its imagination to recognize that one of the purposes
of photographing the jurors so often was to be as-
sured that they would look for their photographs
in the newspapers and thereby expose themselves
to the prejudicial reporting. Also, the newspapers
ran editorials praising the trial judge (he was a
candidate for re-election) and published photo-
graphs and sketches of him in at least 46 separate
issues. This was certainly an attempt to bring him
around to their way of thinking.’ 231 F. Supp. 63.
(Emphasis supplied.)
“Even if we were to join in the apparently gratuitous
inference as to the press’ motives, we have just exam-
ined the reasons why we cannot join in the presump-
a.
tion that the jurors violated their oaths and instruc-
tions by examining the trial publicity. Nor are we
willing to assume the judicial venality or timidity we
would have to assume to find any effect of such pub-
licity on t).e judge in the face of a record which is en-
tirely devcid of any evidence of trial misconduct on
his part.” (App. A, pp. s.31-s.32.)
When present counsel speaks of “substantial disrup-
tons,” “distractions” and a “volatile” atmosphere at the
trial, he: is not talking from any personal knowledge, nor
does the record substantiate his claims. It should be re-
membered that this trial continued for some nine weeks
and that, necessarily there are times when people are re-
quired, for one reason or another, to leave the court room.
The reference by the Ohio Supreme Court to the
words “Roman holiday” merely described the widespread
publicity furnished by the news media to the public at
large and had no reference to the conduct of the trial it-
self, nor to the proceedings in the courtroom. The expres-
sion is also used to mean a “good time” or “field day.” It
by no means follows that the news media slanted the news
or even tried to do so to prejudice or to convict the peti-
tioner. As clearly indicated by Judge Bell in his opinion,
it was a case involving “murder and mystery, society, sex
and suspense.” The curiosity of the public, excessive
though it may have been, necessarily brought about the
widespread publicity.
All we have in the instant case in the finding of the
District Court that the jury was not a fair and impartial
jury is suspicion, surmise, conjecture, and a general dis-
trust of the jury with no basis in fact that the jury was
not to be trusted to render a fair and impartial verdict
based solely upon the evidence produced in court and the
instructions of the court on the law applying to the
evidence.
:
WO ALD Ae? ATT BOT OTS LN AERO TLS LT PLT I. 8 —
_—
57
IL.
DISQUALIFICATION OF THE TRIAL JUDGE.
The District Court made a finding that the trial judge
should have disqualified himself. (App., Vol. III, p. 456a.)
This finding is based solely upon the unsworn state-
ments of the New York gossip columnist Dorothy Kilgal-
len Kollmar to whom the trial judge allegedly said before
the trial, ““Well, he (Sheppard) is as guilty as hell. There
is no question about it.” (App., Vol. III, p. 457a); and
Edward Murray, an employee in the office of the Clerk of
the Common Pleas Court of Cuyahoga County, to whom
the trial judge allegedly said months before the trial,
“Sam Sheppard is as guilty as he (the judge) was in-
nocent.” (App., Vol. III, p. 386a.)
It is a matter of common knowledge around the Court
House in Cuyahoga County that Ed Murray was a patient
of the petitioner’s brother, Dr. Steve Sheppard, and has
a son in the same osteopathic field, who interned at the
Sheppards’ hospital.
It was also well known among the news reporters at
the Criminal Courts Building during the trial, tha’ Dorothy
Kilgallen Kollmar was not on friendly terms with the trial
judge and if anybody made a disturbance during the pro-
ceedings, she did. Judge Blythin had warned her that she
would be barred from the courtroom if she did not obey
his rules. She was always arriving late and rushing around
to get material in a hurry for her noon lead. If anyone
slanted their news stories, she did, in favor of the peti-
tioner. In the Cleveland News, December 1, 1954, is the
headline “Portrait of Dr. Sam One of Variance” in which
article she compares Sam with Marlon Brando and his pro-
file to Henry Fonda. In the Cleveland News, December
2, 1954, appears her headline “Pats Defense for Evidence
Analysis.”” And when the verdict was returned in this case,
58
she headlined it in the New York Journal American as a
“miscarriage of justice.”
A third unsworn statement was made by Mr. Gar-
mone, one of the three trial counsel (Appendix, Vol. III,
p. 382a), which shows that defense counsel were satisfied
that the trial judge would be fair and impartial in the
handling of the trial, and that no affidavit of bias and
prejudice was filed against the trial judge. This statement
is shunted into a footnote in the District Court's decision
(Appendix, Vol. III, p. 461a), apparently because it did
not support the finding of the District Court that the trial
judge should have disqualified himself. While Judge
Blythin’s son was a member of the Cleveland Homicide
Bureau, he did not participate in the investigation of this
crime. The trial record shows who the investigating officers
were.
We do not find that Dorothy Kilgallen’s statement is
a matter of record in the District Court. The Appendix,
Vol. III, pp. 388a-392a, shows her statement in which it is
stated: “By agreement of counsel, no oath is administered
since the integrity of the witness is not in dispute.”’ The
statement was taken on May 9, 1964 in New York, but how
the District Court obtained the statement is not a matter
of record. She was not cross-examined.
On the basis of this highly incompetent matter which
would have no standing in any court, the District Court
impugns the integrity of the state trial judge. The Dis-
trict Court concludes that these unsworn statements are
uncontroverted evidence in this case and must be accepted
as being true. (Appendix, Vol. III, pp. 458a-459a.) Upon
what legal basis must they be accepted as being true?
The statements do not even rise to the level of affi-
davits, and even if they had been made under oath, it has
been held that issues of fact cannot be established in
TS RIE PIM OF —
_ ram
59
habeas corpus proceedings by ex parte affidavits; Walker
v. Johnston, 312 U. S. 275, 285, 85 L. Ed. 830, 61 Sup. Ct.
574 (1941); Moses v. Hudspeth, 129 F. 2d 279, 280 (10th
Cir.) (1942), certiorari denied in 317 U. S. 665, 87 L. Ed.
534, 63 Sup. Ct. 73; Jones v. Cunningham, 313 F. 2d 347
(4th Cir.) (1963).
To have to resort to this type of incompetent evi-
dence to upset the state court conviction, we believe, shows
bias and prejudice on the part of the District Judge against
the state trial judge. Further, the District Court knew
that there is no way of rebutting these statements since
the trial judge has been deceased for some years. To
honor these unsworn statements is analogous to denying
cross-examination. Waiting for some ten years until the
State of Ohio, the plaintiff in the original action, was un-
able to defend by the refuting statement of an esteemed
trial judge has the direct effect of denying the State of
Ohio due process of law. And it is material to ask, where
have these individuals been for the last ten years who are
now claiming that Judge Blythin made such statements
to them, if what they now say is the truth?
The District Court made no examination of the trial
record to support his finding that the trial judge was biased
and prejudiced, and the only proper and competent proof
to determine this issue is the record of the trial which
speaks for itself. Nor is there any showing in the trial
record that the trial judge, in fact, did anything but prop-
erly carry out his duties as a presiding judge in this case
in safeguarding and protecting the rights of this petitioner
to a fair trial by a jury. Judge Blythin was not the trier
of the facts. Issues of fact on the trial were determined
by a jury, not by the judge, and we cannot see that the
cases of State ex rel. Pratt v. Weygandt, 164 O. S. 463
(1956), Tumey v. Ohio, 273 U. S. 510 (1927), and In re
a
60
Murchison, 349 U. S. 133 (1955) cited by the District
Court have any application to the instant case. Further,
no one of these cases lends support to the proposition that
the qualifications of a state trial judge can be passed upon
by a Federal District Judge on habeas corpus. The Mur-
chison case, supra, was decided by the Supreme Court of
the United States on appeal. And the Tumey case, supra,
was also decided on appeal. The Pratt case was an action
in mandamus originating in the Supreme Court of Ohio.
Article IV, Section 3 of the Constitution of Ohio, pro-
vides in part:
“Any judge of the Court of Common Pleas may tem-
porarily preside and hold court in any county; and
until the General Assembly shall make adequate pro-
vision therefor, the Chief Justice of the Supreme
Court of the state shall pass upon the disqualification
or disability of any judge of the Court of Common
Pleas, and he may assign any judge to any county to
hold court therein.”
There is nothing in Fay v. Noia, 372 U.S. 391, upon which
decision the District Court relies, giving a federal district
court »n habeas corpus, jurisdiction to circumvent a state
constitutional provision.
Section 2701.03 of the Revised Code of Ohio reads:
“When a judge of the Court of Common Pleas is inter-
ested in a cause or matter pending before the court,
is related to, or has a bias or prejudice either for or
against a party to such matter or cause or to his coun-
sel, or is otherwise disqualified to sit in such cause or
matter, on the filing of an affidavit by any party to
such cause or matter, or by the counsel of any party,
setting forth the fact of such interest,.bias, prejudice,
or disqualification, the clerk of the Court of Common
Pleas shall enter the fact of such filing on the trial
docket in such cause and forthwith notify the chief
_ —
61
justice of the supreme court. The chief justice shall
designate and assign some other judge to take the
place of the judge against whom such affidavit is filed.
The judge so assigned shall try such matter or cause.
Such affidavit shall be filed not less than three days
prior to the time set for the hearing in such matter
or cause.”
This state legislation requires the timely filing of an affi-
davit of bias and prejudice and both the state constitu-
tional provision and state statute require that the question
of bias and prejudice be determined by the Chief Justice
of the Supreme Court. No affidavit of bias and prejudice
was filed in the instant case in the state court.
It is stated in 30A American Jurisprudence, Sec. 172,
p. 89:
“A judge is not disqualified to sit in a criminal case
merely because he has an opinion as to the guilt of
the accused, or is convinced of his guilt, * * *”
Furthermore, even though the trial judge may have ex-
pressed an opinion as to the guilt of the petitioner to
strangers to the case, there is no showing or any proof that
the trial judge conveyed any such personal opinion to the
jury, who were the triers of the facts. The trial judge did
not render the judgment on the facts.
If the Honorable Judge Edward Blythin were alive
to defend on this issue, he no doubt would reiterate what
he stated so succinctly on the motion for new trial:
“It is to be noted that not a single person or agency
connected with the investigation of, or prosecution for,
the crime involved escapes the anathema of the de-
fense. These include the police, the coroner, his as-
sistants, the prosecuting attorney and his aides, the
State’s witnesses, the grand jury, its foreman, the
trial jury, the public, the bailiffs and the court. The
sense of search for truth and the declaration of justice
62
seems to have vanished from a whole community as
if by magic and overnight. The news agencies of every
kind and character are thrown in for good measure.
In spite of all the charges made not a single specific
item is cited in support of the claims made. Only
broad generalities are indulged in. Reviewing courts
will, we hope, have the duty of passing on all the legal
questions involved and appearing on the record, and
unless it is shown in very clear fashion that some ex-
trinsic forces plowed through the «ffurt to grant the
defendant a fair trial, and succeedec. in disrupting that
effort, it is fair to assume that none did.” (Emphasis
ours.) (Appendix, Vol. I, pp. 46a-47a.)
Further, there is no basis in the record for any find-
ing that the trial judge did not discharge his duties con-
scientiously, carefully, and with dignity and due regard
for the constitutional rights of the petitioner to a fair trial.
The Court of Appeals said:
“We believe that the District Judge was under a
misapprehension in assuming that because Judge
Blythin could not answer the charges against him,
such charges constituted ‘uncontroverted evidence’
that Judge Blythin had made the statements at-
tributed to him. There are many circumstances in
which testimony need not be accepted even though
formally uncontradicted. E.g., Quock Ting v. United
States, 140 U. S. 417, 420-22, 35 L. Ed. 501, 502-03
(1891); Scates v. Isthmian Lines, Ine., 319 F (2)
798, 799 (CA 9, 1963); Ramos v. Matson Nav. Co.,
316 F (2) 128, 132 (CA 9, 1963); D’Orsay Equip.
Co. v. United States Rubber Co., 302 F (2) 777, 779-
80 (CA 1, 1962); Powers v. Continental Cas. Co., 301
F (2) 386, 388-89 (CA 8, 1962); Wooley v. Great Atl.
& Pac. Tea Co., 281 F (2) 78, 80 (CA 3, 1960);
Hasson v. C. I. R., 239 F (2) 778, 782 (CA 6, 1956);
Andrew Jergens Co. v. C. I. R., 125 F (2) 686, 689
(CA 6, 1942); Goodyear Tire & Rubber Co. v. FTC,
101 F (2) 620, 624 (CA 6, 1939), cert. denied, 308
a
63
U. S. 557, 84 L. Ed. 468 (1939); 8 Cyclopedia of Fed.
Proc. § 26.98 (3d ed. 1951); 11 Id. § 47.161 (3d ed.
1963); 7 Wigmore, Evidence, § 2034, pp. 260-63 (3d
ed. 1940). Manifold reasons for rejecting the ‘un-
controverted’ statements adduced by petitioner exist
in the present case. Whether offered to prove the
matter asserted or merely the fact of assertion, testi-
mony as to the uncorroborated oral statement of a de-
ceased person is the weakest form of evidence, viewed
with suspicion and subject to close scrutiny. ‘The
courts consider with suspicion, or lend a reluctant ear
to, statements as to what a deceased person may have
said, especially when corroboration is lacking.’ 31A
C. J. S. Evidence, § 266, p. 689. Such statements ‘are
regarded as of comparatively little probative value.
* * * 20 Am. Jur. Evidence, § 1196, p. 1048, and
‘* * * courts of justice lend a very unwilling ear to
statements of what dead men had said,’ Lea v. Polk
County Copper Co., 62 U. S. (21 How.) 493, 504, 16
L. Ed. 203, 207 (1859). * * *” (Pet. App. A, pp.
s.35-s.36. )
The Court of Appeals said further:
“The only authorities cited by the District Judge
for his finding of constitutional error in the failure of
the trial judge to Zeseue himself, State, ex rel. Pratt
v. Weygandt, Chief Justice, 164 Ohio St. 463, 132
NE (2) 191 (1956); Tumey v. Ohio, 273 U. S. 510,
71 L. Ed. 749 (1927); In re Murchison, 349 U. S. 133,
99 L. Ed. 942 (1955), are completely inapposite. In
the case at bar it was the jury and not the judge who
determined the guilt or innocence of petitioner. Pratt
v. Weygandt was a divorce case to be decided entirely
by the trial judge, and mandamus to compel his re-
placement was refused. McFadden v. United States,
63 F (2) 111 (CA 7, 1933), not cited by the court
below, is also distinguishable as involving a trial to
the judge without a jury. Similarly, in Tumey v.
Ohio, the United States Supreme Court held improper
state provisions for trial of liquor law violations be-
a a
64
fore a village mayor who was to retain the amount of
his costs in each case of conviction, in addition to his
salary. The Court said, ‘But no fees or costs in such
cases are paid him except by the defendant if con-
victed. There is, therefore, no way by which the
mayor may be paid for his service as judge, if he does
not convict those who are brought before him * * *.’
273 U. S. 520, 71 L. Ed. 753. (Emphasis supplied.)
The Court also noted that ‘all questions of judicial
qualification may not involve constitutional validity.
Thus matters of * * * personal bias * * * seem gen-
erally to be matters merely of legislative discretion.’
273 U. S. 523, 71 L. Ed. 754. In re Murchison involved
the Michigan ‘one-man grand jury’ statute and the
Supreme Court held that due | ocess was denied
where the judge presiding at a contempt hearing had
also served as the ‘one-man grand jury’ out of whose
proceedings the contempt charges arose. The distinc-
tion between these cases and the case at bar is ob-
vious.” (App. A, pp. s.39-s-40.)
Ill.
LIE DETECTOR EVIDENCE.
It is not a fact, as stated by present counsel (Pet. v.
32) that defense counsel “cited specifically” the publicity
given petitioner’s refusal to take a polygraph test when
he sought a change of venue and/or a continuance. And,
publicity concerning the lie detector occurred months be-
fore the trial.
The petitioner did not allege as error in the state
courts, the admission of testimony concerning his unwill-
ingness to take a lie detector test, but did complain about
this testimony in the former petition for a writ of certiorari
filed with this Court in 1956.
The District Court finds that it has jurisdiction to
consider this alleged error even though it was not urged
65
on appeal to the Ohio Courts (Appendix, Vol. III, pp.
464a-465a) ; and finds further that the trial judge had the
duty of instructing the jury that no inference could be
drawn from petitioner’s refusal to submit to such a test,
and by failing to do so, he violated petitioner’s constitu-
tional rights. (Appendix, Vol. III, p. 468a.) The court
quotes from Fay v. Noia as authority for taking jurisdic-
tion on this issue although it was not raised in the state
courts.
Failure to obtain review in the state courts on this
issue was not because any appellate remedies were with-
held by the state courts as in Noia, supra, and all that Noia
stands for is that failure to timely appeal from a state con-
viction did not bar federal habeas corpus relief under
exceptional circumstances. For the Supreme Court said
in Nota, 372 U. S. 391, at pages 428-429:
,» “It is a familiar principle that this Court will decline
to review state court judgments which rest on inde-
pendent and adequate state grounds, notwithstanding
the co-presence of federal grounds. See, e.g. NAACP
v. Alabama, 357 U. S. 449, 2 L. Ed. 2d 1488, 78 S. Ct.
1163; Fox Film Corp. v. Muller, 296 U. S. 207, 80 L.
Ed. 158, 56 S. Ct. 183. Section 25 of the Judiciary Act
of 1789, c 20, 1 Stat. 85-87, denied this Court power to
base the reversal of a state court decision on any error
other ‘than such as * * * immediately respects * * *
questions of validity or construction of the said (Fed-
eral) constitution, treaties, statutes, commissions, or
authorities in dispute.’ The deletion of the express re-
striction by the Judiciary Act of February 5, 1867,
c 28, Sec. 2, 14 Stat. 386-387, did not enlarge this
Court’s power in that regard. * * *”
The Supreme Court stated also in Noia, 372 U. S. 391,
at p. 441:
“Noia’s case stands on its own. * * *”
a
We contend that by this piecemeal consideration of
an issue that could have been raised in the state courts,
the District Court encroached upon the state appellate
court’s prerogative to search the record and determine
whether the admission of this testimony and the instruc-
tion of the trial court was error, and if error there was,
whether it was prejudicial.
In Townsend v. Sain (1963), 372 U. S. 293, 317, 9 L.
Ed. 2d 770, 788, 83 Sup. Ct. 745, the court, in reliance upon
the Noia case, held:
“The standard of inexcusable default set down in Fay
v. Noia adequately protects the legitimate state inter-
est in orderly criminal procedure, for it does not sanc-
tion needless piecemeal presentation of constitutional
claims in the form of deliberate by-passing of state
procedures.” (Emphasis ours.)
This case was remanded to the District Court and on ap-
peal, the 7th Circuit reversed in U. S. ex rel. Townsend v.
Ogilvie, Sheriff, 334 F. (2d) 837 (1964). The 7th Circuit
held (pp. 843-44):
“+k + * we conclude a federal court has exhausted its
statutory power in a habeas corpus proceeding after
it has decided a confession, introduced in a state
criminal trial, was voluntarily given. The court does
not possess a residuum of power to search the record
for procedural errors not involving constitutional
rights and issue a writ of habeas corpus for the pur-
pose of providing a new trial in the state court.
“A federal court acting in this fashion would consti-
tute a super appellate tribunal and encroach upon
state appellate court prerogatives; such action would
affront the principles of federalism upon which our
federal-state juridic system operates.” (Emphasis
ours.)
EE
67
And the cases cited by the District Court in the in-
stant case, namely, Frye v. United States, 293 F. 1013 (D.
C. Cir. 1923), Ohio v. Smith, 113 O. App. 461 (1960), and
New Jersey v. Driver, 183 A. 2d 655 (1962) are decisions
in which appellate courts were exercising their appellate
court prerogatives in determining whether there was prej-
udicial reversible error in the admission or exclusion of
evidence pertaining to the lie detector.
As stated in Wolf v. Nash, 313 F. 2d 393 (C. A. Mo.)
(8th Cir.) (1963), certiorari denied, 83 S. Court 1713, 374
U. S. 817, 10 L. Ed. 2d 1041, the due process clause of the
14th Amendment does not enable a federal court to review
errors of state law.
Furthermore, there is no foundation in the record for
the raising of any claim that the petitioner’s constitutional
rights were violated in the admission of conversations
between the petitioner and the officers concerning the lie
detector. The defense went into the matter also on the
trial, on this issue. How was the petitioner denied due
process of law under the circumstances?
The trial court instructed the jury that a person is
not compelled to take a lie detector test (R. 3852). The
trial court had nothing before it upon which to instruct
the jury further concerning the lie detector. In relating
his first conversation with the petitioner about taking a
lie detector test, Officer Schottke testified on direct exam-
ination:
“He was then asked if he would take a lie detec-
tor test and he said ‘yes.’ He asked how a lie detector
worked and we told him that it takes the reaction of
the respiratory system.
* * * He said that due to his present condition,
that he didn’t fee] as though this would be a fair test
e .
and that he would not want to take the test at this
particular time.
We told him that he would be able to take the
test, if he wanted to, at the time when he felt better.”
(R. 3590-3591.)
No objection was made to this testimony.
On cross-examination of Officer Schottke, defense
counsel questioned him as follows regarding a later con-
versation he had with the petitioner:
“Q. Now, during that conversation you asked him
about the lie detector again, didn’t you?
A. I don’t recall at this particular time whether
I did or not.
_Q. Well, to try and refresh your memory, did
you say to him, “Doctor, are you still willing to take
a lie detector test?’
A. I don’t recall at this time, sir.
Q. And did he say to you that, ‘I am willing, but
not one that will be conducted by the Cleveland Police
Department, because you have already accused me’?
Did he answer you that way?
A. I don’t recall.
Q. And did he add that, ‘If you can find some-
body that is competent in a community far removed
from the city of Cleveland,’ that he would be willing
to accompany you and take the test that you request-
ed of him?
A. I don’t recall that conversation.
Q. You don’t recall that. But you wouldn’t say
to this Court and jury, under the oath that you have
accepted to tell the truth, that that conversation didn’t
take place, would you, Officer Schottke?
A. I don’t recall at this time the conversation
that you state.” (R. 3727-3728.)
And on re-cross-examination, Officer Schottke was again
questioned concerning the petitioner’s willingness to take
a lie detector test. (R. 3743.)
pea —
_
69
At Record 3846, Deputy Sheriff Rossbach related his
conversation with the petitioner about taking a lie detec-
tor test. No objection was made to this testimony. It was
not until later on, during Rossbach’s testimony, that the
defense, for the first time, objected to testimony concern-
ing the lie detector (R. 3851) which was followed by the
court’s instruction to the jury that no one is compelled to
take a lie detector test.
Despite the above objection, Dr. Sheppard when tes-
tifying in his own “ehalf on direct examination by his
counsel, told about the first request that he submit to a lie
detector test and stated that he told the officers he would
be willing to submit to such examination “if it was a re-
liable test.”
Further, in their argument to the jury, the defense
stated:
“And then during the course of that conversation he
says, ‘Are you willing to take a lie detector test,’ and
what was the answer that this man gave, he says, ‘I
am.’” (R. 5376-5377.)
The petitioner, of course, had not submitted to any lie de-
tector test, but in view of what the record shows, where is
there any support for holding that the admission of this
testimony constituted prejudicial reversible error, or that
the petitioner was denied due process of law on this issue.
The trial court in instructing the jury that no one is com-
pelled to take a lie detector test was merely applying a
rule of evidence. This raises no federal question. As stated
in Buchalter v. People of State of New York, 319 U. S. 427,
431, 63 S. Ct. 1129, 1131, 87 L. Ed. 1492:
| “The due process clause of the 14th Amendment does
| not enable us to review errors of state law however
) material under that law. Sve also Lisenba v. People
of State of California, 314 U. S. 219, 226-229, 62 S. Ct.
280, 86 L. Ed. 166.”
: 7
The District Court finds that Mayor Houk’s testimony
concerning the taking of a lie detector test permitted the
jury to infer that he had passed the test and that Houk
was not on trial. (Appendix, Vol. III, p. 469a.)
Houk was merely a witness in this case, not the de-
fendant, The petitioner’s brother, Dr. Steve Sheppard,
had filed charges with the police against Mayor Houk, and
Houk’s willingness to take the lie detector test was simply
one item of fact to show both his attitude and conduct. It
certainly does not raise any constitutional issue for the
petitioner because Mayor Houk took a lie detector test,
nor could it be consistently claimed that the petitioner
was denied due process of law because Mayor Houk was
willing to teke a lie detector test.
In the instant case, the State court by its instruction
to the jury concerning the lie detector was merely inter-
preting state law. There is no adequate federal basis for
the finding of the district court on this issue. The mere
suggestion that the petitioner submit himself to certain
tests did not deny him due process of law. He did not take
any tests nor was he compelled to do so.
The Court of Appeals stated:
‘“ * * We cannot find that the handling of this
matter deprived the petitioner of any federally grant-
ed constitutional rights. If there was fault in what
occurred, it was a nonconstitutional error which
should have been assigned on appeal. Habeas corpus
is not to be employed as a substitute for appeal. E.g.,
Oyler v. Taylor, 338 F (2) 260, 262 & n. 3 (CA
10, 1964); Allen v. Bannan, 332 F (2) 399, 402 (CA
6, 1964); Barker v. Ohio, 328 F (2) 582, 584-85 (CA
6, 1964); Worth v. Michigan, 291 F (2) 621, 622 (CA
6, 1961), cert. denied, 368 U. S. 862 (1961); Anderson
v. Jones, 281 F (2) 684, 686 (CA 6, 1960).
FECT LL LOE OSPR PLE LDL LEG LE L ITE ILD ARON Por oo a OI eon ee ll
aaa
71
“We think that the observations of the Seventh
Circuit in United States ex rel. Townsend v. Ogilvie,
334 F (2) 837, 842-44 (1964) are pertinent here.
‘The (federal) court does not possess a residuum
of power to search the record for procedural errors
not involving constitutional rights and issue a writ
of habeas corpus for the purpose of providing a new
trial in the state court.
‘A federal court acting in this fashion would
constitute a super appellate tribunal and encroach
upon state appellate court prerogatives; such action
would affront the principles of federalism upon
which our federal-state juridic system operates.’
“At this distance, we cannot say that the decision
of Dr. Sheppard’s veteran counsel to withhold objec-
tion to the lie detector evidence prejudiced their cli-
ent. It goes without saying that Dr. Sheppard’s con-
viction does not prove such.
“As proud as we are of the great traditions of our
courts and their concern for the rights of those ac-
cused of crime, we are aware that like all human in-
stitutions they seldom act with perfection. It is not
difficult, after ten years of searching analysis and con-
templative study and the announcement of some new
judicial attitudes, to find some imperfections in the
conduct of a trial and to conclude that a judge or any
attorney could have done a better job. But stability
of the law and a nation’s respect for its courts will
disappear if, long after the event, their judgment may
be set aside because a trial judge’s discretion was less
than perfectly exercised or because it is thought that
the trial plan of defense counsel was not the best that
could have been employed. This must be especially
true where an accused has enjoyed adequate and full
opportunities for appellate review.” (Pet. App. A, pp.
s.48-s.49.)
72
IV.
MISCONDUCT OF BAILIFFS IN ALLOWING JURORS TO
CALL THEIR FAMILIES.
This issue was before this Court on the previous peti-
tion for a writ of certiorari.
We wish to point out, at the outset, that the matters
complained of took place in the hotel room when some of
the jurors called their husbands or children on the tele-
phone, and not in the jury room during the deliberations. —
The jurors deliberated in a room above the court room in
the Criminal Courts Building and there is absolutely no
evidence in the record showing any misconduct of the
jury or of the officers in charge.
The telephone calls to the husbands and children of
the jurors, all made in the presence of the bailiff, were not
made during the deliberations of the jury. They were made
from the hotel room to which they had been taken from
the jury room and there is no evidence whatsoever that
the case was even discussed in these telephone calls, much
less anything said prejudicial to the petitioner.
There is no evidence whatsoever of telephone conver-
sations with strangers. The testimony of Bailiff Edgar
Francis follows:
“Q. Do you know, of your own knowledge,
whether there were any telephone communications
made out of any of the respective rooms that were
occupied by any members of the jury?
A. Their phones were cut out, Mr. Garmone.
Q. By whose request?
A. Mr. Steenstra arranged that.
Q. And were there any telephone calls made
from the room that you occupied?
A. Yes, sir.
Q. Did you make the calls, or did the jury make
the calls?
73
A. No. The jury made the calls, and I sat in the
chair right alongside the telephone.
*x* * *
Q. Mr. Bailiff, what was the purpose of the calls
that the jurors made in your presence?
x * *
A. Well, they were made to their husbands and
wives, and those that had children, they talked to the
children.
Q. Was there any conversation whatsoever about
this case or their deliberations?
A. Not one word, Mr. Parrino.” (R. 7084-7085.)
The defense saw fit to call certain jurors to the witness
stand on their motion for new trial and if they wished to
pursue this matter further, they had the right and oppor-
tunity so to do. They chose not to do so and there is noth-
ing in the record whatever of anything having been said or
done either by the bailiffs or by or to the jurors prejudicial
to the petitioner.
The trial court stated when a supplemental motion for
new trial was filed:
“The court named Simon Steenstra, permanent crimi-
nal jury bailiff and Edgar Francis his own courtroom
bailiff as the persons to have charge of the jury in
their movements during the period of deliberation.
They were named in open court in the presence of
all interested parties. Both were well known to all
parties, with the possible exception of defendant, and
not a word of objection was voiced by anyone. Further-
more, one of counsel for the defense saw the court in
chambers prior to the selection of said bailiffs and
inquired oi the court who he intended to appoint to
take charge of the jury during the deliberation period.
Upon being informed that the court would name
Bailiffs Steenstra and Francis he expressed his whole-
hearted approval.” (Appendix, Vol. I, p. 47a.)
74 ee
The Supreme Court of Ohio in the opinion states:
“Defendant contends that he was prejudiced in this
case by the actions of two officers of the court, in
whose charge the jury was committed during its
deliberations, in permitting some members of the jury
to make unmonitored telephone calls in violation of
Section 2945.33, Revised Code, which reads as follows:
‘When a cause is finally submitted the jurors must be
kept together in a convenient place under the charge
of an officer until they agree upon a verdict, or are
discharged by the court. The court may permit the
jurors to separate during the adjournment of court
overnight, under proper cautions, or under super-
vision of an officer. Such officer shall not permit a
communication to be made to them, nor make any
himself except to ask if they have agreed upon a
verdict, unless he does so by order of the court * * *.’
“It is conceded that no authorization for such tele-
phone calls was given by the court.
“At the conclusion of each day’s deliberation, the
members of this jury were housed in the Carter Hotel,
under the supervision of two court bailiffs. The record
reveals that the telephones in the hotel rooms occupied
by individual jurors had been ‘cut out.’ However,
some of them were permitted to make calls on the
telephone in the room of one of the bailiffs.
“In connection with a motion for a new trial, the
record discloses the following cross-examination of
one of the bailiffs by counsel for defendant:
‘Q. Did you make the calls, or did the jury make
the calls?
A. No. The jury made the calls, and I sat in
the chair right alongside the telephone.’
“On redirect examination, the testimony was as follows:
“On redirect examination, the testimony was as
follows:
SSR IAI LEE FEELS EOL INSLEY AL ONCE IE LIEN TEE ELOISE IIE FEA SE IIE Se
—
75
‘Q. Mr. Bailiff, what was the purpose of the calls
that the jurors made in your presence?
* ek *
A. Well, they were made to their husbands
and wives, and those that had children, they talked
to the children.
Q. Was there any conversation whatsoever
about this case or their deliberations?
A. Not one word, Mr. Parrino.’
“Counsel for defendant rely upon State v. Adams,
141 Ohio St. 423, 48 N. E. (2d) 861, 146 A. L. R. 509,
as authority for their contention that the action of the
bailiff in permitting these telephone calls constituted
error prejudicial to the defendant. They cite the third
paragraph of the syllabus of that case, which reads:
‘The violation by a court officer in charge of a jury of
Section 13448-1, General Code (Section 2945.33,
Revised Code), to the effect that he shall not com-
municate with a jury in his charge or custody
except to inquire whether it has reached a verdict,
will be presumed to be prejudicial to a defendant
against whom, after such communication, a verdict
is returned by such jury.’
“A mere reading of the following fourth paragraph
of the syllabus of the Adams case should be sufficient
to distinguish that case from the present one:
‘Where a court bailiff, on being informed by the jury
during its deliberations that it could not agree, stated
to it: “You can’t do that. You must reach a decision
if you have to stay here for three months,’ there is
a violation of the statute which is prejudicial to a
defendant against whom, following such declaration,
a verdict is returned by the jury.’
“The case of Emmert v. State, 127 Ohio St. 235,
187 N. E. 862, 90 A. L. R. 242, although not cited by
defendant, might also be authority for the proposi-
tion that misconduct of a bailiff is ground for reversal.
That case, however, is also readily distinguishable
76
from the present one. In the Emmert case the officer
in charge of the jury, at a time when it «vas not
actually in its deliberative sessions, said to certain
members of the jury: ‘My God, you are all wet. Judge
Stahl expects you to return a verdict of guilty and if
you don’t it will be just too bad.’ Other remarks of a
similar nature to the effect that the jury had to reach
a verdict were made by the bailiff.
“In situations such as those in the Adams and Em-
mert cases, it is easy to presume prejudice to the de-
fendant as a result of the conduct of the bailiff. Can
the same be said of the conduct of the bailiffs here in
permitting jurors, who for several days and nights had
been sequestered and unable to see or hear from their
husbands, wives or children, to telephone those mem-
bers of their families? We do not think so. There
is, on the contrary, every reason to believe that as-
surances of the health and welfare of their loved ones
would tend to ease the jurors’ minds as to personal
matters and would make them better, more conscien-
tious jurors. Time after time, the members of this
jury were instructed by the court not to communicate
with anyone concerning this case or permit anyone
to communicate with them about it. We must assume
they followed the court’s instructions. No complaint is
made that they disregarded these instructions every
night for some seven weeks that they were allowed
to go home at the close of each day’s session of the
trial. It is difficult to visualize a juror who will follow
a court’s instruction during the many hours he spends
each evening and week end with his family and then
deliberately disregard that instruction in a few brief
moments he speaks to a member of his family on the
telephone in the presence of a bailiff.
“The law in Ohio is that no judgment of conviction
shall be reversed in any court for any cause unless it
appears affirmatively from the record that the defend-
ant was prejudiced thereby or was prevented from
having a fair trial. Section 2945.83, Revised Code.
—_
17
There is no such affirmative showing of prejudice here,
and this Court will not presume a prejudice as a matter
of law from the fact that some of the jurors made
telephone calls to members of their immediate
families.” (Appendix, Vol. I, pp. 111a-113a.)
The District Court says that the Supreme Court of
Ohio should have granted a new trial because of the un-
equivocal language of Section 2945.33, supra, and cites
Mattox v. United States, 146 U. S. 140 (1892). But in the
Mattox case, which was heard on appeal, communications
with the jury were shown to be harmful. A newspaper
account of the case was introduced into the jury room
during deliberations, bearing upon the merits of the case.
The record in the instant case, however, affirmatively
shows that the telephone calls made by the jurors to
members of their immediate families were harmless.
The District Court’s conclusion that they were harmful to
the petitioner is again based upon a suspicion that the
jurors were not to be trusted in following the instructions
of the court not to discuss the case with anyone.
Further, we cannot see where a Federal District Court
has any jurisdiction on habeas corpus to interpret a state
statute such as Section 2945.33, or determine how that law
should be applied by the state courts in the light of the
facts in a particular case. The Supreme Court said in
Townsend v. Sain, 372 U. S. 293, 311-12 (1963):
“The whole history of the writ “@* * refutes a con-
struction of the federal courts’ habeas corpus powers
that would assimilate their task to that of courts of
appellate review.”
The Supreme Court of Ohio in interpreting Section
2945.33, supra, in the light of the facts in the instant case,
was exercising appellate jurisdiction over state legislation.
The District Court has attempted to place its own interpre-
aT
78 ,
tation on this legislation and in so doing, has acted as a
super appellate tribunal over the state court on this matter.
Under Section 2945.83, supra, it must affirmatively appear
from the record that these telephone calls were harmful.
There is no proof and none was offered on the motion for
new trial, that the calls were anything but harmless.
The Court of Appeals stated:
«* * * Here again the District Judge placed re-
liance on cases the facts of which disclose their lack of
resemblance to the case before him and us. State v.
Adams, 141 Ohio St. 423, 48 NE (2) 861, 146 ALR .
509 (1943); Emmert v. State, 127 Ohio St. 235, 187
NE 862, 90 ALR 242 (1933); and Mattox v. United
States, 146 U. S. 140, 36 L. Ed. 917 (1892). In State v.
Adams, a bailiff who had been told by the jury that it
could not agree said to them, ‘you can't do that. You
must reach a decision if you have to stay here for
three months.’ In Emmert v. State, the officer in
charge of the jury remarked to certain jurors, ‘My
God, you are all wet. Judge Stahl expects you to re-
turn a-verdict of guilty and if you don’t it will be just
too bad.’ Aside from this obvious inappositeness, these
Ohio cases were found not controlling of this case by
the Ohio Court. Mattox v. United States involved
direct review of a federal trial. Because the dissenting
opinion frequently cites Mattox to support its con-
clusions, we have set out in the margin Chief Justice
Fuller’s recital of the facts in Mattox because it dis-
coses a situation totally different from the facts of the
present case * * *.” (Pet. Appendix A, pp. s.52-
s.54.)
The Court of Appeals continued:
«“* & * The showing that communications were had
with the jurors, accordingly, is not of itself enough to
demonstrate a denial of due process. So in Near v.
Cunningham, 313 F. (2) 929, 933 (CA 4, 1963), the
court ruled that ‘should it appear that prejudicial
PPP LH pace
79
statements were made in the presence or hearing of
the jurors,’ the habeas corpus court must reach its
constitutional decision ‘in the light of all of the sur-
rounding circumstances.’ Here there is no pretense
at showing that prejudicial statements were made to
the jurors by their children or spouses. The pre-
sumption that the jurors remained true to their in-
structions is fortified by petitioner’s neglect of his
opportunity to show that the jurors chose this par-
ticular opportunity among many to violate their in-
structions. In view of the absence of any attempt to
demonstrate or even claim such violations here, we
are satisfied that the Ohio Supreme Court correctly
disposed of this issue, and that in any event the occur-
rence does not present a denial of constitutional due
process.” (Pet. Appendix A, pp. s.55-s.56.)
V.
OTHER ALLEGED CONSTITUTIONAL VIOLATIONS.
The claims under this heading in the petitioner’s brief
are unsupported by any findings by the District Court.
A. It is, of course, not a fact that the petitioner was
arraigned without counsel on a capital charge. The argu-
ment pertains to the arrest of the petitioner on a warrant
and present counsel is evidently not familiar with what
transpired when the petitioner was arrested.
The petitioner was arrested on July 30th, brought be-
fore the Acting Mayor of Bay Village and the case was set
for preliminary hearing on August 9, 1954. Petitioner’s
counsel filed an affidavit of bias and prejudice on August
7, 1954 to prevent the Acting Mayor from proceeding with
any hearing. This affidavit of bias and prejudice was sus-
tained by Judge Frank J. Merrick of the Court of Common
Pleas of Cuyahoga County, on August 13, 1954 and Judge
Merrick transferred the case to Judge William K. Thomas
—
80
of the Court of Common Pleas. Judge Merrick ordered the
Acting Mayor to forthwith deliver to Judge Thomas all
files and papers in the case for further proceedings accord-
ing to law. Judge Thomas, subsequently, released the peti-
tioner on bail. Judge Merrick’s opinion appears in 121
N. E. (2d) 440, State v. Sheppard. The proceeding had
on this affidavit of bias and prejudice is recorded in Special
Docket No. 67061 of the records of the Court of Common
Pleas of Cuyahoga County.
B. It is claimed that defense counsel on the trial were
denied the right to exercise a peremptory challenge, after
Juror Manning was excused and his place taken by alter-
nate Juror Hanson. This same claim was made in the
previous petition for a writ of certiorari filed in 1956. A
faulty legal stipulation was entered into in the District
Court regarding peremptory challenges. The Court of
Appeals of Cuyahoga County stated:
“The defendant entered his exception to the procedure
used by the Court in discharging Juror Manning and
demanded the right to exercise his remaining peremp-
tory challenge when the first alternate juror was
seated in the panel after Manning was discharged,
which request was refused.
“After a jury is sworn and charged with the delivery
of the defendant, the trial is commenced and unused
peremptory challenges cannot thereafter be used and
where an alternate juror has been selected and sworn
as provided by law, he must be seated in the place of
the discharged juror by order of the Court.”
Revised Code Section 2313.37 provides in part:
“If before the final submission of the case to the jury
a juror becomes incapacitated or disqualified, he may
be discharged by the judge, in which case, or if a
juror dies, upon the order of the judge, said additional
or alternate juror shall become one of the jury and
ney —
81
e in all respects as though selected as an original
juror
In any event, there is here no federal question.
C. The petition makes reference to matters concern-
ing the possession of the home of the petitioner and it is
argued that a Dr. Paul Leland Kirk discovered a large
blood spot in the murder room that did not come from the
petitioner; that if the jury had had this evidence, they
would have acquitted.
The claim that the authorities seized the home of the
petitioner was made in the previous petition for a writ of
certiorari filed in 1956. This was made an issue by the
defense on the motion for new trial on the ground of newly
discovered evidence, which motion was denied by the trial
court, affirmed by the Court of Appeals of Cuyahoga
County in 100 Ohio Appeals 399 and dismissed on appeal
by the Supreme Court of Ohio in 164 O. S. 428. No appeal
was taken from the final action of the Supreme Court of
Ohio.
This is just another example of the one-sided pro-
ceeding that was conducted in the District Court. The
affidavit of Dr. Kirk was part and parcel of a Bill of Excep-
tions covering the motion for new trial on the ground of
newly discovered evidence, and is but a fragmentary ex-
cerpt from that record. That Bill of Exceptions also went
ou file with the District Court and contains counter-affi-
davits that would have to be considered along with Dr.
Kirk’s affidavit, as well as on the unfounded claim that the
defense were prevenied from examining the premises. The
Court of Appeals of Cuyahoga County has completely an-
swered this claim in 100 Ohio Appeals at pages 406-407:
“During the trial the defendant subpoenaed the keys
into court through Chief Eaton and demanded the
right to retain them. The trial judge, however, ruled
82
that they must remain in the possession of the police
of Bay Village, which order was carried out until De-
cember 23, 1954, when complete possession of the
house was given the defendant. There is no evidence
that any request to enter the house for the purpose of
investigation and inspection was ever made by the
defendant, nor does the record show any formal appli-
cation to the court at any time for a like purpose. Dr.
A. J. Kazlauckas, a physician and expert who had
spent many years as a deputy coroner of Cuyahoga
County, was in the employ of the defendant. He ex-
amined all the articles of property pertaining to this
case in the possession of the county coroner, together
with the autopsy report, conclusions of laboratory
findings and X-rays of Marilyn Sheppard, and yet
made no effort to make any scientific examination of
the premises. He was not even presented as a witness
during the trial. Assistant Prosecuting Attorney Saul
S. Danaceau deposes in his affidavit that he informed
Arthur E. Petersilge, of counsel for the defendant,
and the brother of the defendant, Dr. Stephen Shep-
pard, in early November, ‘that the said house was
available to the defendant at any and all times to
inspect or conduct investigations therein.” It seems,
however, that it was understood that on all occasions
a police officer would have to accompany the defend-
ant or any representative of his when visiting the
home.”
The record of this case shows the extreme importance
of numerous articles of property within the home and a
number of such articles appear as exhibits in the evidence.
It was also necessary to continue the examination of the
premises for blood spots, fingerprints, etc., by the scientific
unit of the Cleveland Police Department. It was also
necessary to continue the examination and search in and
about the house for possible clues and particularly for the
still missing T-shirt and weapon. The whole episode in
Arb Ee
yee _—
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83
the closing days of the trisi, and the demand for the
keys to the home in the presence of the jury, was a grand-
stand play and show, and nothing else.
In the meantime, the petitioner and his counsel had,
on more than one occasion, visited the home, went through
all the rooms and examined the house, both inside and out-
side.
D. This is just another example of the numerous
frivolous claims made by the defense, and this claim that
the Ohio Supreme Court was illegally constituted when the
court heard this case, was presented to this Court in the
former petition for a writ of certiorari.
It was at the instance of the defense, and without in-
forming the prosecution of their intention. that the Chief
Justice disqualified himself and appointed another judge.
No objection was made prior to the hearing on this case in
the Supreme Court of Ohio and it was not until after the
court as constituted made its decision adverse to the de-
fense, that they first raised the issue.
This is purely a State constitutional question. Article
IV, Section 2 of the Ohio Constitution, in its pertinent parts
provides as follows:
“* * * Tf any of said Judges shall be unable, by
reason of illness, disability or disqualification, to hear,
consider and decide a cause or causes, the Chief
Justice, or in case of the absence or disability of the
Chief Justice, the Judge having the longest period
of service upon that Court, may direct any Judge of
any Court of Appeals to sit with the Judges of the
Supreme Court in the place and stead of the absent
judge.”
Under that constitutional provision, only in the case of
absence or disability of the Chief Justice (not mere dis-
qualification) is the judge having the longest period of
84
service upon the Supreme Court authorized to direct an
appellate judge to sit. Where the Chief Justice merely
disqualifies himself and is not absent or disabled, it is
the Chief Justice who directs the appellate judge to sit
with the judges of the Supreme Court.
A reading of the opinion of the Supreme Court of Ohio
will show that there was no failure of review in this case, as
claimed.
VI.
SUFFICIENCY OF THE EVIDENCE.
This claim of the petitioner that the evidence on the
trial was insufficient, was considered by the Court of Ap-
peals, and the Court said:
“One further subject should be briefly mentioned.
Dr. Sheppard’s petition claimed that the evidence at
his irial was constitutionally insufficient to justify
submitting the issue of guilt or innocence to the jury.
This claim was neither withdrawn nor sustained upon
the hearing in the District Court. On this subject, the
pe‘itioner’s brief states,
‘The District Judge expressly declined to consider
this issue * * *, although in all fairness it should
be stated that counsel for petitioner-appellee on
several occasions offered to waive this claim of
error. * * * No waiver was required, however,
and the issue remains. This Court no doubt has the
power, since the trial transcript is before it as an ex-
hibit from the District Court to search the record
and conclude that the allegation of insufficiency is
well-taken.’
This text is long and has been trimmed here. Open the source document for the complete record.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.