Motion — Sheppard v. Maxwell

TABLE OF CONTENTS.

cies

MOTION FOR LEAVE TO FILE BRIEF OF THE

AMERICAN CIVIL LIBERTIES UNION AND

OHIO CIVIL LIBERTIES UNION, AMICI

ES EES CE Tee EN ae Re

BRIEF OF AMICI CURIAE _________ ete Ween

Cg ae ee

Eee ener

Reasons for Granting a Writ _.._.__._.____________

I. Damaging Publicity Induced by Law Enforce-

Sg ie eT Rete ET RE EP ig A

II. Damaging Publicity Describing Prosecution Evi-

dence Which Varies Materially from That In-

troduced at Trial by the Prosecution

Ill. Damaging Publicity Describing Prosecution Evi-

dence Which Would Be Inadmissible in Court __

IV. Publicity Which Makes Celebrities of the Trial

Jurors

V. Accusatory Publicity Which Charges Guilt or At-

tacks the Character or Reputation of the Accused

Conclusion

TABLE OF AUTHORITIES.

Cases.

Adamson v. California, 332 U. S. 46 (1947) ________

Alcorta v. Texas, 355 U. S. 28 (1957) _..----_____-

Beck v. Ohio, 379 U. S. 89 (1964)

Brady v. Maryland, 373 U.S. 83 (1963) _..-_-___-

Bridges v. California, 314 U. S. 252 (1941) __1, 13, 25,

Cox v. Louisiana, 379 U. S. 559 (1965)

Craig v. Harney, 331 U. S. 367 (1947) ------------

Estes v. Texas, 381 U.S. 532 (1965) —-3, 13, 14, 15, 16, 24

Fay v. Noia, 372 U. S. 391 (1963) ~.--.--------- 3

Freeman v. New York Central R. R. Co., 15 Ohio i

2d 187 (App. Lucas 1960) _..----.---------- 22

Gideon v. Wainwright, 372 U.S. 335 (1963) ~._--- 13, 14

Griffin v. California, 380 U. S. 609 (1965) ._... 13, 19, 22

Irvin v. Dowd, 366 U. S. 717 (1961) ----2, 3, 13, 14, 19

Jackson v. Denno, 378 U.S. 368 (1964) _..-..------ 13

Janko v. United States, 366 U. S. 716 (1961) ~----- 3, 13

Mapp v. Ohio, 367 U. S. 643 (1961) ~..-.------- eae

Marshall v. United States, 360 U. S. 310 (1959) ___3, 13

Mooney v. Holohan, 294 U. S. 103 (1935) ~------- 17, 19

Murchison, In re, 349 U. S. 133 (1955) ~-.--------- 15

Napue v. Illinois, 360 U. S. 264 (1959) _...-------- 19

Ohio v. Smith, 113 Ohio App. 461 (Lucas 1960) _... 22

Parker v. Friendt, 99 Ohio App. 329 (Cuyahoga 1954) i

Patterson v. Colorado, 205 U. S. 454 (1907) ---- 3, 21

Pennekamp v. Florida, 328 U. S. 331 (1946) ___---

UM LOA AONE BYNES eS. 8 Mee ene 1, 2, 13, 17, 20, 27

Pointer v. Texas, 380 U. S. 400 (1965) _...-------- 13

Rideau v. Louisiana, 373 U. S. 723 (1963) ___-----

ischaiatecta ahNat L 3, 13, 14, 15, 16, 19

dian: Fiorida, 341 U.S. 50 (1951) ____3, 13, 19, 20

Sheppard v. Maxwell, 231 F. Supp. 37 (S. D. Ohio

So.) a

State v. Sheppard, 100 Ohio App. 345, 128 N. E. 2d

EES EARS SURES IL ele Mile TR 8

State v. Sheppard, 100 Ohio App. 399, 128 N. E. 2d

NR nea ES PRN PU eee 8

State v. Sheppard, 164 Ohio St. 428, 131 N. E. 2d 837

REIS INE CS Ls CAE AMEE Sa le ORR 8

State v. Sheppard, 165 Ohio St. 293, 135 N. E. 2d 340

SESE eT eee

State ex rel. Sheppard v. Alvis, 170 Ohio St. 551, 167

CE IY vg he tts ae a

Stroble v. California, 343 U. S. 181 (1952) lhl deena

lal i Nnctigceliniaeton theatiinailiidbeei 3, 13, 14, 16, 18, 19

Townsend v. Sain, 372 U. S. 293 (1963) ________ 3

Tumey v. Ohio, 273 U. S. 510 (1927) _____ seas SRE 14

Turner v. Louisiana, 379 U.S. 466 (1965) _.... 14

White v. Maryland, 373 U.S. 59 (1963) _...._______ 14

Wood v. Georgia, 370 U. S. 375 (1962) ___.______

Constitution.

Constitution of the United States:

Fifth Amendment _____ | OS eh rd 22

Sixth Amendment _____.______ 10, 1. 12, 13. 22, 24

Fourteenth Amendment __________ 10, 11, 12, 13, 24

Miscellaneous.

Annotation, 23 ALR 2d 1308 _............____.s—iséaQDd

Douglas, J., The Public Trial and the Free Press, 33

Rocky Mt. a Te | RAN

Report of The President’s Commission on the Assassi-

nation of President John F. Kennedy eseialats pp.

LEST eet TE ELAS RE et

In the Supreme Court of the United States

OCTOBER TERM, 1965.

No. 490.

SAMUEL H. SHEPPARD,

Petitioner,

vs.

E. L. MAXWELL, Warden,

Respondent.

MOTION FOR LEAVE TO FILE BRIEF OF THE AMERICAN

CIVIL LIBERTIES UNION AND OHIO CIVIL LIBERTIES

UNION, AMICI CURIAE.

The American Civil Liberties Union and its Ohio

affiliate, the Ohio Civil Liberties Union, respectfully move

for leave to file a brief amicus curiae in support of the peti-

tion for writ/of certiorari in this case. Counsel for peti-

tioner has consented to this filing; respondent’s attorney

has denied consent.

For many years, the American Civil Liberties Union

and its affiliates have fought to defend and extend the First

Amendment guarantees of freedom of speech and press,

upon the clear principle that a free society cannot exist

unless the persons within its boundaries are permitted—

rather, encouraged—to express themselves by word and in

print without fear of governmental restraint. And we are

aware of the mighty role that a free press plays in helping

to establish and preserve that free society. This Court has

amply demonstrated its own dedication to these principles.’

‘See Bridges v. California, 314 U. S. 252 (1941); Craig v.

Harney, 331 U. S. 367 (1947); Pennekamp v. Florida, 328 U. S.

331 (1946); Wood v. Georgia, 370 U. S. 375 (1962).

a

But it is equally clear that freedom without justice

is an empty virtue. “The safety of society and the security

of the innocent alike depend upon wise and impartial crim-

inal justice. Misuse of its machinery may undermine the

safety of the State; its misuse may deprive the individual

of all that makes a free man’s life dear.” * It has been ob-

served that “not the least significant test of the quality of

a civilization is its treatment of those charged with crime,

particularly with offenses which arouse the passions of a

community.” *

The point at which free press and fair trial intersect

in the administration of criminal justice—the notorious

criminal trial amidst inflammatory publicity in an aroused

community—presents serious and complex problems to

those who would defend both the principles of freedom

and justice. As the quantum and the techniques of the

communications media continue to expand, as the public

thirst for the contemporaneous details of notorious crimi-

nal trials continues unslaked, the quality of criminal justice

in the courts of our land will be subjected to ever-increas-

ing stresses unless this Court provides detailed working

principles to guide the trial courts of the states (as well as

the federal courts which it directly supervises) in the ad-

ministration of this most difficult task.

In recent years, this question has been thrust forcibly

and dramatically before the attention of the American

public.*

2 Pennekamp v. Florida, 328 U. S. 331, 357 (1946) (con-

curring opinion).

3 Irvin v. Dowd, 366 U. S. 717, 729 (1961) (concurring

opinion).

4 Report of The President’s Commission on the Assassina-

tion of President John F. Kennedy (1964), pp. 231-242. “The

experience in Dallas * * * is a dramatic affirmation of the need

for steps to bring about a proper balance between the right of

the public to be kept informed and the right of the individual

to a fair and impartial trial.” P. 242.

-—

This Court, on a case by case basis, has already begun

the task of weighing the delicate due process considera-

tions involved when a notorious criminal trial takes place

in a community inflamed by massive prejudicial publicity.*

The case at bar provides the Court with yet a further

opportunity to analyze and refine working constitutional

principles to guide the trial courts through this most sensi-

tive area of criminal due process. For, through the auspices

of the Great Writ,° a number of varieties of prejudicial

trial and pretrial publicity have been preserved for re-

view by this Court.

In the firm belief that this case presents a clear oppor-

tunity for this Court to further delineate the federal consti-

tutional standards of criminal due process as they relate

to inflammatory publicity surrounding notorious trials,

and in the hope that in some measure they may be of as-

sistance to the Court in performing its delicate task of

assuring that “the conclusions to be rendered in a case

will be induced only by evidence and argument in open

court, and not by any outside influence, whether of private

talk or public print” ’ while “refusing to sacrifice freedom

of press to the whims of judges,” * this application is filed.

5 Marshall v. United States, 360 U. S. 310 (1959); Janko v.

United States, 366 U. S. 716 (1961); Irvin v. Dowd, 366 U. S.

717 (1961); Rideau v. Louisiana, 373 U. S. 723 (1963); Estes v.

Texas, 381 U. S. 532 (1965). Cf. Shepherd v. Florida, 341 U. S.

50 (1951) (concurring opinion); Stroble v. California, 343 U. S.

181 (1952).

* Fay v. Noia, 372 U. S. 391 (1963); Townsend v. Sain, 372

U. S. 293 (1963). “Although in form the Great Writ is simply

a mode of procedure, its history is inextricably intertwined with

the growth of fundamental rights of personal liberty. * * * Its

root principle is that in a civilized society, government must

always be accountable to the judiciary for a man’s imprison-

ment; if the imprisonment cannot be shown to conform with

the fundamental requirements of law, the individual is entitled

to his immediate release.” Fay v. Noia, 372 U. S. 391 (1963).

* Patterson v. Colorado, 205 U. S. 454, 462 (1907).

* Douglas, J., The Public Trial and the Free Press, 33 Rocky

Mt. L. Rev. 1 (1960).

_—

4

Because we consider it to be highly important to the

advancement of these objectives that this Court consider

this case on its merits, movants seek to participate at this

preliminary stage of these proceedings by filing the at-

tached brief amicus in support of the petition for certiorari.

Respectfully submitted,

BerNarp A. BERKMAN,

ME vin L. Wutr,

Attorneys for movants.

In the Supreme Court of the United States

OCTOBER TERM, 1965.

No. 490.

SAMUEL H. SHEPPARD,

Petitioner,

VS.

E. L. MAXWELL, Warden,

Respondent.

BRIEF OF AMICI CURIAE.

STATEMENT OF THE CASE.

On December 21, 1954, petitioner, Samuel H. Shep-

pard, was convicted of murder in the second degree for the

slaying of his wife after a sensational jury trial which

captivated the attention of the nation.

Marilyn Sheppard, petitioner’s pregnant young wife,

had been bludgeoned to death in the bedroom of her lake-

shore home during the early morning hours of July 4,

1954. Petitioner told police and testified in court that he

had been wakened from his sleep on a couch in the down-

stairs living room by a noise or cry from upstairs, ascended

the stairs, and was knocked unconscious while grappling

with an unidentifiable white form standing next to his

wife’s bed. He further stated that upon recovering, he

pursued the form out of the house, to be again knocked

out while struggling on the shore. Petitioner has con-

sistently denied guilt from the date of the murder until and

including the present time. He at first denied, but later

—

6

admitted having had sexual relations with a former em-

ployee of the hospital upon whose staff petitioner served

as a doctor of osteopathic surgery. The prosecution con-

tended that this affair was the motive for premeditated

murder, although the jury verdict did not support a finding

of premeditation.

Petitioner was arrested for murder on July 30, 1954;

he was admitted to bail and indicted a few days later, on

August 17, 1954. He remained in custody thereafter until

his trial. The nine-week trial began on Uctober 18, 1954;

the jury began its deliberations on December 17, 1954 and

five days later a verdict of guilty of murder in the second

degree was returned. Petitioner was thereafter sentenced

to life imprisonment in the Ohio Penitentiary.

The news coverage off the murder, the pretrial in-

vestigation and the subsequent trial was massive, detailed,

pervasive, inflammatory, colorful and “not of a nature

calculated to inspire confidence in the objectivity and good

taste of the public news media.”® The trial and pretrial

publicity which permeated the atmosphere in which peti-

tioner stood trial for murder was succinctly described by

the Ohio Supreme Court in reviewing his conviction:

“Murder and mystery, society, sex and suspense were

combined in this case in such a manner as to intrigue

and captivate the public fancy to a degree perhaps

unparalleled in recent annals. Throughout the pre-

indictment investigation, the subsequent legal skir-

mishes and the nine-week trial, circulation-conscious

editors catered to the insatiable interest of the Ameri-

can public in the bizarre. Special seating facilities

for reporters and columnists representing local papers

and all major news services were installed in the

®S. 23, majority opinion, Sixth Circuit Court of Appeals.

The prefix “S” refers throughout to the page of the appendix

attached to the petition for certiorari.

o :

courtroom. Special rooms in the Criminal Courts

Building were equipped for broadcasters and tele-

casters. In this atmosphere of a ‘Roman holiday’ for

the news media, Sam Sheppard stood trial for his life.”

165 Ohio St. 293, 294, 135 N. E. 2d 340, 342 (1956).

An adequate summary of the barrage of publicity

which inundated the community before and during peti-

tioner’s murder trial is beyond the scope of this statement

of facts." For purposes of this Court’s review of the peti-

tion for certiorari, however, the damaging trial and pre-

trial publicity may be categorized as follows:

1. Publicity relating to the strength of the state’s case

or the guilt of the accused, procured or cooperated

in by state law enforcement authorities.”

2. Publicity relating to testimony of witnesses not

offered at trial by the prosecution.”

3. Publicity relating to evidence which would have

been inadmissible if offered at trial.”

4. Publicity which made celebrities of the trial

jurors."

5. Publicity charging guilt or attacking the character

of the accused.”

Because of the inflammatory atmosphere generated by the

adverse publicity, defense counsel moved for a continuance,

10 Examples of some of the newspaper clippings, photographs

and editorials which appeared in Cleveland journals are ap-

pended to the petition for certiorari. All of these materials which

appeared in Cleveland newspapers between the dates of the

murder and petitioner’s conviction are collected in bulk in five

green scrapbooks certified to this Court by the Court of Ap-

peals. Additional examples are discussed in the argument, infra.

1 E.g., S. 110, S. 125, S. 126, S. 127.

1? E.g., S. 109, S. 110, S. 126, S. 127.

13 E.g., S. 119, S. 120.

* Eg., S. 103, S. 105, S. 106, S. 107, S. 108, S. 128.

* E.g., S. 115, S. 116, S. 117, S. 118, S. 119, S. 120, S. 121,

S. 122, S. 123, S. 124, S. 125, S. 126, S. 129.

a

8

change of venue and mistrial both before and repeatedly

during the trial. All such motions were denied by the

trial court.

During the course of the jury empanelling, 13 of the

64 prospective jurors examined were dismissed for cause

because they had prejudged the guilt or innocence of the

accused.

While the jurors who were ultimately empanelled

were sworn to impartiality, eleven of the twelve who re-

turned the verdict admitted exposure to the pretrial pub-

licity, one had paid particular attention to each detail of

the case offered by the news media, the better to discharge

his duties as a juror, and the twelfth juror, although assert-

ing that, during the period of more than three months

between the murder and the commencement of the trial,

she had heard nothing about the case, admitted receiving

the Cleveland Press daily at her home.

The trial court did not sequester the jury; con-

sequently, all of the jurors were permitted to return to

their homes when court was not in session during the

nine-week trial.

Since his conviction and the denial of his motion for

new trial, petitioner’s attempt to obtain a new trial has

been the subject of sustained litigation for the past eleven

years. Both his conviction and the denial of his motion for

new trial were affirmed by the Court of Appeals for Cuya-

hoga County, Ohio."* The Ohio Supreme Court dismissed

an appeal from the decision affrming the denial of a new

trial,” and affirmed the conviction,”* two judges dissenting.

16 State v. Sheppard, 100 Ohio App. 345, 128 N. E. 2d 471

(1955); State v. Sheppard, 100 Ohio App. 399, 128 N. E. 2d 504

(1955).

17 State v. Sheppard, 164 Ohio St. 428, 131 N. E. 2d 837

(1956) .

18 State v. Sheppard, 165 Ohio St. 293, 135 N. E. 2d 340

(1956).

9

Application for certiorari was denied by this Court” and

his application for rehearing was also denied.’ Peti-

tioner’s subsequent petition for a writ of habeas corpus to

the Ohio Supreme Court was denied.”"

On April 11, 1963, petitioner filed an application for

a writ of habeas corpus in the United States District Court

of the Southern District of Ohio, charging that his convic-

tion was constitutionally defective in a number of respects,

including a denial of due process of law resulting from the

adverse newspaper publicity before and during his trial.

On July 15, 1964, the District judge concluded, upon exam-

ining the trial and pretrial publicity and other matters,

that petitioner did not have a fair trial and that his convic-

tion was, therefore, inconsistent with the United States

Constitution, ordered his release on bail from the Ohio

Penitentiary where he had been confined under a life

sentence since his conviction in 1954, and granted the

State of Ohio sixty days within which to take further action

against petitioner.””

Respondent appealed the order of the United States

District Court which voided the state court conviction. On

May 5, 1965, the Sixth Circuit Court of Appeals (two

19 Sheppard v. Ohio, 352 U. S. 910 (1956). Justice Frank-

furter’s memorandum opinion concurring in the denial of certio-

rari, however, was careful to point out that “[s]Juch denial of his

petition in no wise implies that this Court approves the decision

of the Supreme Court of Ohio [denying petitioner’s claim that

the publicity surrounding his trial deprived him of due process

of law]. It means and means only that for one reason or another

this case did not commend itself to at least four members of the

Court as falling within those considerations which should lead

this Court to exercise its discretion in reviewing a lower court’s

decision.” (Emphasis and bracketed material supplied.) 352

U.S. 910, 911 (1956).

Sheppard v. Ohio, 352 U. S. 955 (1956).

*1 State ex rel. Sheppard v. Alvis, 170 Ohio St. 551, 167

N. E. 2d 94 (1960).

*2 Sheppard v. Maxwell, 231 F. Supp. 37 (S. D. Ohio 1964).

mang

10

judges for the majority and one dissenting) reversed the

judgment of the District Court and remanded petitioner to

the custody of respondent.** Thereafter, a petition for re-

hearing was denied and on July 26, 1965, the Court of

Appeals stayed the mandate pending application for cer-

tiorari to this Court. The petitioner remains at large on

bail.

QUESTIONS PRESENTED.

I.

In a notorious capital prosecution in a state court,

where an aroused community was inundated with inflam-

matory publicity asserting the strength of the state’s case

and the guilt of the defendant, where much of this informa-

tion was transmitted to the public before and during the

trial by the news media with the cooperation of, or by the

procurement of state law enforcement authorities, and

where defense motions for change of venue, continuance

and mistrial were overruled by the trial court, is a convic-

tion thereby obtained a denial of due process of law within

the meaning of the Sixth and Fourteenth Amendments to

the United States Constitution, even in the absence of

direct proof in the record demonstrating actual prejudice

to the defendant?

Il.

In a notorious capital prosecution in a state court,

where an aroused community was inundated with inflam-

matory publicity asserting the strength of the state’s case

and guilt of the defendant, where a part of such publicity

related to the damaging testimony of prosecution witnesses

23 The opinion of the Court of Appeals is reported at 33

U. S. L. Week 2588 (May 5, 1965) and is reproduced in the ap-

pendix to the petition for certiorari at 5. 1.

11

transmitted to the public by the news media before and

during the trial, although the prosecution never produced

such witnesses at the trial, and where defense motions for

change of venue, continuance and mistrial were overruled

by the trial court, is a conviction thereby obtained a denial

of due process of law within the meaning of the Sixth and

Fourteenth Amendments to the United States Constitution,

even in the absence of direct proof in the record demon-

strating actual prejudice to the defendant?

Ii.

In a notorious capital prosecution im « state court,

where an aroused community was inundeted with inflam-

matory publicity asserting the strength of the state’s case

and the guilt of the defendant, when a part of such pub-

licity relating to damaging evidence which, if offered at the

trial, would have been inadmissible in evidence, was

transmitted to the public by the news media before and

during the trial, and where defense motions for change of

venue, continuance and mistrial were overruled by the

trial court, is a conviction thereby obtained a denial of due

process of Jaw within the meaning of the Sixth and Four-

teenth Amindments to the United States Constitution,

even in the absence of direct proof in the record demon-

strating actual prejudice to the defendant?

IV.

In a notorious capital prosecution in a state court,

where the identities, addresses, families and personalities

of the trial jurors were transmitted to the public by the

news media during the trial in such a manner as to make

celebrities of such trial jurors in the aroused community

in which the trial was held, is a conviction thereby obtained

a denial of due process of law within the meaning of the

——

12

Sixth and Fourteenth Amendments to the United States

Constitution, even in the absence of direct proof in the

record demonstrating actual prejudice to the defendant?

V.

In a notorious capital prosecution in a state court,

where an aroused community was inundated with inflam-

matory and accusatory publicity asserting the guilt of the

defendant, where damaging episodes attacking the de-

fendant’s character were transmitted to the public by the

news media before and during his trial, and where defense

motions for continuance, change of venue and mistrial

were overruled by the trial court, is a conviction thereby

obtained a denial of due process of law within the meaning

of the Sixth and Fourteenth Amendments to the United

States Constitution, even in the absence of direct proof in

the record demonstrating actual prejudice to the defend-

ant?

13

REASONS FOR GRANTING THE WRIT.

Although this Court has scrupulously guarded the

right of the independent press to publish out-of-court news

and editorial comment a’sout pending judicial proceedings

virtually without governmental restraint?‘ within the past

half-dozen years** it has become increasingly aware of,

and shown a willingness to deal with, the consequences to

fair trial ** of such untrammelled use of freedom of expres-

sion, both in federal ” and state * criminal prosecutions.

A critical issue in each of these cases has been the kind

and quantity of evidence in the record sufficient to show

* Bridges v. California, 314 U. S. 252 (1941), established

that press freedom was entitled to “the broadest scope that could

be countenanced in an orderly society,” subject only to the re-

quirement of the clear and present danger standard, defined as

“a working principle that the substantive evil 'must be ex-

tremely serious and the degree of imminence extremely high

before utterances can be punished.” See also Craig v. Harney,

331 U. S. 367 (1947); Pennekamp v. Florida, 328 U. S. 331

(1946); Wood v. Georgia, 370 U. S. 375 (1962).

*° But five years after the petitioner’s trial and three years

after the denial of certiorari on his direct appeal.

**The source of the constitutional command upon state

courts to provide fair trials for those accused of crime is, of

course, the Due Process Clause of the Fourteenth Amendment,

either standing alone or coupled with the Sixth Amendment.

Whether the Sixth Amendment as a whole applies to the states

through the Fourteenth, cf. Adamson v. California, 332 U. S.

46, 71-72 (1947) (dissenting opinion); Griffin v. California, 380

U. S. 609 (1965), or the Fourteenth Amendment includes the

“fundamental” portions of the Sixth, Gideon v. Wainwright, 372

U. S. 335, 342 (1963) or incorporates a concept of “ordered

liberty” distinct from the specific guarantees of the Bill of Rights,

see Pointer v. Texas, 380 U. S. 400, 408 (1965) (concurring

opinion), state presecutions must meet the constitutional guar-

antee of fair trial. Cox v. Louisiana, 379 U. S. 559, 562 (1965);

Jackson v. Denno, 378 U. S. 368, 377 (1964).

*7 Marshall v. United States, 360 U. S. 310 (1959); Janko v.

United States, 356 U. S. 716 (1961).

*8 Irvin v. Dowd, 366 U. S. 717 (1961); Rideau v. Louisiana,

373 U. S. 723 (1963); Estes v. Texas, 381 U. S. 532 (1965). Cf.

Shepherd v. Florida, 341 U. S. 50 (1951) (concurring opinion) ;

Stroble v. California, 343 U. S. 181 (1952).

—-

prejudice to the defendant requiring reversal. That this

issue should be of prime concern in this area is not a sur-

prising matter, both because prejudice resulting from

publicity “may be so subtle that it escapes the ordinary

methods of proof,” “ and because of the normal reluctance

of a juror to concede his bias before his peers.”

In its earliest consideration of cases in this area be-

ginning with Stroble v. California, this Court apparently

required a showing of actual prejudice to the defendant

before reversing a conviction on the ground that inflam-

matory publicity had contaminated the trial.*' In subse-

quent cases, however, “the Court departed from the ap-

proach it charted in Stroble v. California” *’ and reversals

were accomplished without such a showing upon the

ground that prejudice was inherent in the trial and pre-

trial publicity.“

This latter approach to the protection of due process of

law has a long and honorable history in this Court.

In Tumey v. Ohio, 273 U. S. 510, 532 (1927), Chief

Justice Taft said:

“Every procedure which would offer a possible tempta-

tion to the average man * * * to forget the burden

of proof required to convict * * * or which might

lead him not to hold the balance nice, clear and true

2” Estes v. Texas, 381 U. S. 532, 578 (1965) (concurring

opinion).

” E.g., Irvin v. Dowd, 366 U. S. 717, 728 (1961): “No doubt

each juror was sincere when he said that he would be fair and

impartial to petitioner, but the psychological impact requiring

such a declaration before one’s fellows is often its father.”

8 Stroble v. California, 343 U. S, 181 (1952); Irvin v. Dowd,

366 U. S. 717 (1961).

82 Estes v. Texas, 381 U. S. 532, 543 (1965).

& Rideau v. Louisiana, 373 U. S. 723 (1963); Estes v. Texas,

$81 U. S. 582 (1965). Accord: Turner v. Louisiana, 379 U. S.

466 (1965); Gideon v. Wainwright, 372 U. S. 335 (1963); White

v. Maryland, 373 U. S. 59 (1963).

_—

15

between the State and the accused, denies the latter

due process of law.” (Emphasis supplied. )™*

In Jn re Murchison, 349 U. S. 133, 136 (1955), Mr. Justice

Black, speaking for the Court, said:

“A fair trial in a fair tribunal is a basic requirement of

due process. Fairness of course requires an absence of

actua! bias in the trial of cases. But our system of law

has always endeavored to prevent even the probability

of unfairness, * * * [T]o perform its high function

in the best way ‘justice must satisfy the appearance of

justice,’ Offutt v. United States, 348 U. S. 11, 14.”

(Emphasis supplied.) "* ;

The application of the principle that actual prejudice

need not be shown where the circumstances are inherently

suspect constitutionally is particularly appropriate in cases

involving publicity-poisoned trials. For where such trial

contamination is charged, “one cannot put his finger on its

specific mischief and prove with particularity wherein he

was prejudiced.” **

In cases involving both published confessions“ and

damaging accusatory publicity,* this Court has reversed

convictions because of the inherently unconstitutional cir-

cumstances and not upon a showing of actual prejudice.

The instant case turned upon these considerations in

the court below. Although there has never been any mate-

rial disagreement about the extent or nature of the dam-

aging publicity which inundated the community in which

petitioner stood trial for murder, either in the opinions

affirming his conviction on direct appeal or those in the

“* Quoted with approval in Estes v. Texas, 381 U. S. 532,

543 (1965).

® Ibid.

*8 Td. at 544.

* Rideau v. Louisiana, 373 U. S. 723 (1963). \

‘8 Estes v. Texas, 381 U. S. 532 (1965).

—

16

collateral proceeding presently before this Court, the

majority of the Court of Appeals reversed the finding of

the District Court that the newspaper publicity was in-

herently prejudicial. They held instead that the burden

upon the petitioner of demonstrating the constitutional

invalidity of his conviction was “one which must be car-

ried ‘not as a matter of speculation but as a demonstrable

reality’,’ upon the authority of inter alia, Stroble v.

California, 343 U. S. 181 (1952),*° and that petitioner had

not met that burden.

In seeking the grant of the writ of certiorari to review,

and reverse the decision of the Court of Appeals, amici do

not claim that all criminal trials conducted in the context

of massive publicity are, without proof cf actual prejudice,

violative of the constitutional command that each accused

is entitled to a fair trial by an impartial judge and jury.

Rather, amici urge this Court to continue in the direc-

tion it has begun in Rideau and Estes and grant certiorari

in order to rule that certain specific types and varieties of

pretrial and trial publicity,*° all present in quantity and in-

tensity in the case at bar, are inherently prejudicial to the

accused, because they necessarily deny him a fair trial by

both judge and jury.**

3° S. 8. This ruling was made despite the implications of

Rideau v. Louisiana, 373 U. S. 723 (1963) and persisted upon

application for rehearing after Estes v. Texas had made it clear

that this Court had departed from the Stroble approach. 381

U. S. 532 (1965). S. 111-113.

49 Because the jury was not sequestered in the instant case,

but had the opportunity to view and hear the publicity dis-

seminated during trial, both pretrial and trial publicity will be

considered together.

41 Throughout this brief it is presumed that the evil in in-

flammatory and oppressive news reporting and comment about

a highly-publicized crime and trial affects the impartiality of the

judge as well as the jury. For “[T]o deny that bludgeoning or

poisonous comment has power to influence or at least to disturb,

(Continued on following page)

7 Oi Sel aaa a ar haa ae ie OD! Ca ee ca a tats co RR

17

These varieties of publicity include:

I. Damaging publicity procured or cooperated in by

state law enforcement authorities.

II. Damaging publicity relating to prospective testi-

mony of prosecution witnesses not actually of-

fered at the trial by the prosecution.

III. Damaging publicity describing evidence which, if

offered by the prosecution at trial, would have

been inadmissible and constitutionally prejudi-

cial.

IV. Publicity which makes well-known personalities

of the trial jurors.

V. Damaging publicity of an accusatory nature,

whether or not participated in by law enforce-

ment authorities, which charges guilt or attacks

the character or reputation of the accused.

Each of these matters will be considered in sequence

below.*”

(Continued from preceding page)

the task of judging is to play make believe and to assume that

men in gowns are angels. The psychological aspects of this prob-

lem become particularly pertinent in the case of elected judges

with short tenure.” Pennekamp v. Florida, 328 U. S. 331, 359

(1946) (concurring opinion). In the instant case, the fact that

the trial judge stood for re-election in the middle of the trial,

with the political support of the local newspaper which had

crusaded vigorously to have petitioner arrested and convicted

of murder, needs no further embellishment. See S. 101.

*? There is no question here about the requisite “state ac-

tion” to permit this Court to find a federal constitutional viola-

tion in each of the varieties of pretrial and trial publicity de-

scribed above. In (I) the prosecution’s active creation of the

publicity demonstrates the necessary state action. Mooney v.

Holohan, 294 U. S. 103 (1935). In (II), (III), (IV), and (V), it

must be underscored that the constitutional impediment to a

trial conducted in the milieu of such publicity lies not in the

fact that the independent press published the material in ques-

tion, but rather because the trial court failed to protect the im-

partiality of the tribunal by granting the continuances, change

of venue or mistrial repeatedly sought by defense counsel.

The argument that such matters are within the sound dis-

(Continued on following page)

18

L

DAMAGING PUBLICITY INDUCED BY LAW

ENFORCEMENT AUTHORITIES.

There can be no question but that the police, the

county prosecutor and other law enforcement officials were

the cooperative sources, if not the procuring cause of much

of the inflammatory publicity in the news media of which

petitioner complains. Quotations from policemen coicern-

ing their opinions as to petitioner’s guilt and lack of char-

acter,** publication of “mug shots” of petitioner which

could only have come from official jail records,** and pre-

dictions of a “bombshell witness” (with a detailed descrip-

tion of his prospective direct testimony) to be produced at

the trial by the prosecution*® (but who ultimately never

testified in court) are illustrative examples.

It seems clear enough that

“To have the prosecutor himself feed the press with

evidence that no self-restrained press ought to pub-

lish in anticipation of a trial is to make the State itself

through the prosecutor, who wields its power, a con-

scious participant in trial by newspaper, instead of by

those methods which centuries of experience have

shown to be indispensable to the fair administration

of justice.” *°

That such conduct on the part of law enforcement

authoriiies is prevalent in most highly-publicized trials,

(Continued from preceding page)

cretion of the trial court is hopelessly irrelevant because the

judge was required to make his discretionary rulings at a time

when he was as subject to the prejudicial atmosphere created

by the press as was the jury. See discussion in footnote 41,

supra. ;

43 E.g., S. 110, S. 126.

44 E.g., S. 125.

45 E.g., S. 127.

46 Stroble v. California, 343 U. S. 181, 201 (1952) (dissenting

opinion).

PERE EER ee PE ey EY FEELS BAGO, LL RE I EE EES

<n

19

either to obtain a climate of community opinion in which

conviction is likely or to accommodate the press because

of weakness or the hope of political favor, cannot seriously

be doubted.*’

The need, so far as criminal due process is concerned,

is compelling and urgent. It remains for this Court to an-

nounce a rule of conduct for law enforcement authorities

which will make costly their participation in trial by news-

paper. Reversal of convictions where unconstitutional

conduct by law enforcement authorities pervaded the pro-

ceedings has been used effectively by this Court as a de-

terrent to such conduct.** A presumption of inherent un-

constitutionality in a highly publicized trial where law en-

forcement authorities actively participated in the inflam-

matory press releases would assist materially in eliminat-

ing the practice of “anticipatory trial by newspapers” *°

which currently blots our administration of criminal jus-

tice.

47 E.g., Stroble v. California, 343 U. S. 181 (1952) (prosecu-

tor released confession to press even before defendant had com-

pleted his statement) ; Shepherd v. Florida, 341 U. S. 50 (1951)

(newspapers published confession of defendant and attributed

information to sheriff; confession never offered at trial); Irvin

v. Dowd, 366 U. S. 717 (1961) (prosecutor and police officials

toadying to news media pressure by Dallas law enforcement

authorities in the Report of The President’s Commission on the

Assassination of President John F. Kennedy (1964), pp. 231-242.

*SE.g., Mapp v. Ohio, 367 U. S. 643 (1961) (evidence ob-

tained by illegal search and seizure); Beck v. Ohio, 379 U. S.

89 (1964) (unlawful arrest); Griffin v. California, 380 U. S. 609

(1965) (comment by prosecutor on failure of defendant to

testify); and see Mooney v. Holohan, 294 U. S. 103 (1935); Al-

corta v. Texas, 355 U.S. 28 (1957); Napue v. Illinois, 360 U. S.

264 (1959); Brady v. Maryland, 373 U. S. 83 (1963).

Irvin v. Dowd, 366 U. S. 717, 729 (1961) (concurring

Opinion) .

20

Il.

DAMAGING PUBLICITY DESCRIBING PROSECUTION

EVIDENCE WHICH VARIES MATERIALLY FROM THAT

INTRODUCED AT TRIAL BY THE PROSECUTION.

The record in the instant case is replete with prosecu-

tion evidence offered to the community by the news media

but which never was offered in the actual trial. Charges

by a police captain in command of the Cleveland police

homicide bureau that petitioner was a “bare faced liar”

in his sworn testimony” (although he never appeared as a

rebuttal witness for the state at the trial), and newspaper

revelation of the direct testimony of a prospective prose-

tion “bombshell witness” (who never testified in court)”

are but two colorful examples.

This case bears witness to the wry comment of Mr.

Justice Frankfurter, concurring in Pennekamp v. Florida,

328 U. S. 331, 362 (1946):

“Cases are too often tried in newspapers before they

are tried in court, and the cast of characters in the

newspaper trial too often differs greatly from the real

persons who appear at the trial in court and who may

have to suffer its distorted consequences.”

Quite apart from the question of the active participa-

tion of the police and prosecutor in the dissemination of

such matter to the community at large,** the danger to due

process of law caused by such publication is evident.

As Mr. Justice Jackson, concurring in Shepherd v.

Florida, 341 U. S. 50, 52 (1951), has peinted out:

“When such events take place in the courtroom, de-

fendant’s counsel can meet them with evidence, argu-

“50 §, 110.

51S. 109.

52 Discussed supra, pp. 18-19.

FNAL NP LLORAS IY

—_—_

21

ments, and requests for instructions and can at least

preserve his objections on the record.

“But neither counsel nor court can control the ad-

mission of evidence if unproven, and probably un-

provable [evidence is] put before the jury by news-

papers and radio. Rights of the defendant to be con-

fronted by witnesses against him and to cross-examine

them are thereby circumvented. * * *” (Bracketed

material supplied.)

The prejudice to the defendant from such unoffered

testimony in the news media is infinitely greater than if the

same evidence were offered in court with appropriate due

process safeguards. “[T]he propriety and necessity of pre-

venting interference with the course of justice by prema-

ture statement, argument or intimidation hardly can be

denied.” °*

Under such circumstances, a presumption of prejudice

to the accused is as clearly justifiable as though the evi-

dence were offered in court without affording the defend-

ant the opportunity to object to its introduction, make a

record for appeal, confront witnesses, cross-examine, or

subpoena additional witnesses to rebut such evidence.

The violence to due process is patent.

I.

DAMAGING PUBLICITY DESCRIBING PROSECUTION

EVIDENCE WHICH WOULD BE INADMISSIBLE

IN COURT.

Closely allied to the prejudicial effect of prosecution

witnesses whose direct testimony was communicated by

the news media to the public, but who never appeared in

court to subject themselves to cross-examination, is the

dissemination of evidence which clearly cannot be offered

°8 Patterson v. Colorado, 205 U. S. 454, 463 (1907).

22

in court because, by its very nature, it is prejudicially

inadmissible.

. Such material abounds in the case at bar. For exam-

ple, the publication of petitioner’s pretrial refusal to sub-

ject himself either to “lie detector” or “truth serum” tests

by the police, coupled with the snide editorial suggestion

that such suspicious conduct was indicative of his guilt”

undoubtedly did incalculable damage to petitioner’s credi-

bility, which, it must be noted, was the principal question

presented to the jury.

Whether or not the evidence would have been inad-

missible in court because of the well-known unreliability

of “lie detectors” and “truth serum,” or for the consti-

tutional reasons that comment upon such refusal would

invade (a) his Fifth Amendment privilege to refuse to tes-

tify against himself** or (b) his Sixth Amendment right to

have his guilt or innocence determined by an impartial

tribunal rather than by such “scientific” substitutes,” it is

clear that the entire question was mooted by the pretrial

publication of such prejudicial matters, before defense

counsel had an opportunity to object to its introduction in

court. The tactical dilemma in which petitioner’s trial

counsel found himself as a result of such prejudicial pre-

trial publicity is well illustrated by his compelled failure to

object to the introduction of such damaging evidence in

court—evidence which was well known to the entire com-

munity already and which he would only have re-empha-

54S, 119, 120.

55 Ohio v. Smith, 113 Ohio App. 461, 462-3 (Lucas 1960);

Parker v. Friendt, 99 Ohio App. 329, 335-338 (Cuyahoga 1954);

Freeman v. New York Central R. R. Co., 15 Ohio Op. 2d 187,

190 (App. Lucas 1960) and see Annotation, 23 ALR 2d 1308 for

collected cases.

36 See Griffin v. California, 380 U. S. 609 (1965).

57 Ohio v. Smith, 113 Ohio App. 461, 463 (Lucas 1960).

x Cunha SCE DE eee ADO IS RE oer iiats Soke e Mie ee peeemenis <2

RPI CHERRY TEE SELES nt ANCE LIAN SEPP RRL OLIN CON I TT I NE ERIE AP MATES wl

-_

23

sized by objecting—and the subsequent determination by

the Court of Appeals that the constitutional question had

been waived by his conduct."*

It must be emphasized that the claim of constitutional

infirmity made by amici here is not that the lie detector

and truth serum testimony was admitted into evidence (a

question which the Court of Appeals determined had been

waived by the conduct of defense counsel), but rather,

that the pretrial publication of such evidence was so

inherently prejudicial that defense counsel’s timely mo-

tions for continuance, change of venue, and later, mistrial,

should have been granted by the trial court as a constitu-

tional necessity.

IV.

PUBLICITY WHICH MAKES CELEBRITIES

OF THE TRIAL JURORS.

There can be little doubt that the jurors who sat as the

trier of fact in the instant case became well-known in the

community in which the trial took place as a result of the

spotlight of publicity focused upon them by their selection

as talesmen. The court permitted them to be photographed

by press photographers in the courtroom and the jury

room, prominent display of the photographs, names and

addresses of the jurors appeared frequently on the front

pages of the press” and feature articles about them, their

dress, their families and their deliberations appeared in the

news media with sufficient frequency to remove the jurors

from the obscurity they had known before their associa-

tion with this case and add color to the community pageant

which was petitioner’s murder trial.”

88S. 47.

°° S. 103, 105.

°° S. 106, 107, 108, 128.

a mrgommy

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24

Since the jury was not sequestered, it may be pre-

sumed that the jurors were aware of the treatment ac-

corded them by the news media during the trial.

This Court has most recently had occasion to examine

the psychological impact of intense publicity upon the

jurors in Estes v. Texas.*' While the issue presented there

involved televising trial proceedings, many of the same

considerations apply to the case at bar.

“Where pretrial publicity of all kinds has created in-

tense public feeling which is aggravated by” intense pub-

licity focused on the jury, “the nerve center of the fact-

finding process,” those jurors “cannot help but feel the

pressures of knowing that friends and neighbors have

their eyes upon them. If the community be hostile to an

accused” a juror, “realizing that he must return to neigh-

bors who saw” or read detailed accounts of “the trial

themselves, may well be led ‘not to hold the balance nice,

clear and true between the State and the accused * * *’.”

“Moreover, they would be subjected to the broadest

commentary and criticism and perhaps the well-meant ad-

vice of friends, relatives and inquiring strangers who

recognized them on the streets.” **

If our jury system is to continue to have meaning,

jurors must retain the anonymity which permits them to

function best as representatives of their community in

performing the delicate task of fact-finding. When this

fragile balance has been upset by the communications

media, the Sixth and Fourteenth Amendment guarantee

of a fair trial by an impartial jury becomes meaningless.

61 381 U. S. 532 (1965).

62 Jd. at 545-46.

—

25

V.

ACCUSATORY PUBLICITY WHICH CHARGES GUILT OR

ATTACKS THE CHARACTER OR REPUTATION OF THE

ACCUSED.

One fact jumps from the pages of the voluminous rec-

ord in the case at bar with astonishing clarity. Seldom has

such a zealous journalistic campaign been waged, first to

arrest, and then to convict, an accused. Some of the

varieties of trial by newspaper have already been

chronicled above. Using only the language of the majority

of the court below which found no constitutional infirmity

in the trial and pretrial proceedings, the journalistic prod-

uct has been alternately described as “shameful journal-

ism,” “certainly not conducive to the judiciary’s continuing

concern for the freedom that the press insists should at

all times be accorded to it,” * “violent and colorful lan-

guage,” “ “not of a nature calculated to inspire confidence

in the objectivity and good taste of the public news

media,” “ “shabby reporting” “* and “flamboyant and

sometimes shabby pre-trial exhibitions of the press.”

It may well be that newspapers may be expected to

perform no more nobly than they did in the early days

of our country." But the technological improvements in

the communications media in the past two hundred years

3S. 5.

64S. 14.

“ss 2.

“3. 2.

67S. 32.

®8 See letters of Thomas Jefferson as set out in Padover,

Democracy, 150-151, reported in Bridges v. California, 314 U. S.

252, 270, f.n. 16 (1941): “I deplore * * * the putrid state into

which our newspapers have passed, and the malignity, the vul-

garity, and mendac’ “us spirit of those who write them. * * *

These ordures are rapidly depraving the public taste.”

oe Mace . . " - 5 ~ ce e SN

I RR RE AOE AY EAS EO SF, IG Pe SR SAS Tipe

—

26

make similar excesses exceedingly more dangerous to due

process of law and the administration of criminal justice

than did the limited technology of former times.

The fact which isolates the pretrial and trial publicity

in the instant case from that in many other highly-

publicized criminal trials, however, is the single-minded

attempt by the news media to convict petitioner of the

murder of his wife. By the use of slashing editorials,”

biting cartoons,’° maudlin feature stories’’ and slanted

news articles,’* both before and during the trial, petitioner

was continually accused of the murder of his wife, lying

to the police, inhibiting the criminal investigation, and

using his social position and friends in high places to con-

ceal his dirty work. During the trial, radio broadcaster

Robert Considine stated on a network program that peti-

tioner’s denial of guilt reminded him of the denials of

Alger Hiss when Hiss was convicted of perjury, and Walter

Winchell, also on a network radio broadcast, proclaimed

that a girl in New York then under arrest for armed rob-

bery had revealed that petitioner was the father of her

illegitimate child.

With due regard for the freedom of the press to de-

part from its proper function of reporting the news in

a factual manner, and to engage, without governmental

restraint, in the inflammatory and cheap journalism about

whose literary quality all of the appellate judges who have

reviewed this case agree, it must be observed that “freedom

carries with it responsibility, even for the press; freedom

69S. 115, S. 116, S. 117, S. 118, S. 119, S. 120, S. 121, S. 123,

S. 124.

70S, 122, S. 129.

71S. 126.

72S. 125, S. 127.

>. Oat 4 Dt __reane —

aes RT OE TS I ON TROON NS RT

—

of the press is not a freedom from responsibility for its

exercise.” *®

Despite our nation’s cultural and historic dedication

to the First Amendment principle of freedom of expres-

sion, by word and in print, the news media rust be re-

minded of the awful power which is theirs; they must come

to understand that “a trial is not a ‘free trade in ideas’ nor

is the best test of truth in a courtroom ‘the power of the

thought to get itself accepted in the competition of the

market,’”"* that “legal trials are not like elections, to

be won through the use of the meeting-hall, the radio, and

the newspaper.”

This Court should hold that accusatory publicity

which charges the defendant with guilt and attacks his

character is inherently prejudicial, a denial of due process

of law, and will require reversal of any subsequent con-

viction. Such a ruling would impress the news media, vol-

untarily and without judicial compulsion, to recognize

their responsibilities toward the courts which protect their

freedoms; further, it would serve as a warning to those

who have a stake in preserving convictions obtained in the

trial courts, that cynical use of the freedom of the press as

a weapon to obtain a conviction will not be tolerated.

CONCLUSION.

Amici have urged the constitutional invalidity of the

conviction of the petitioner because the trial court failed

to protect the accused from the inherently prejudicial

publicity which saturated the community in which he stood

3 Pennekamp v. Florida, 328 U. S. 331, 356 (1946) (con-

curring opinion).

™4 Bridges v. California, 314 U. S. 252, 283 (1941) (con-

curring opinion).

9 Id., at 271.

Pree

28

trial. For this reason, amici urge this Court to grant the

writ of certiorari sought by petitioner so that his convic-

tion may be reviewed and, ultimately, reversed. In doing

so, this Court will have an opportunity to classify and

provide working solutions for some of the difficult and

delicate problems of free press and fair trial which cur-

rently beset the administration of criminal justice.

Respectfully submitted,

Bernarp A. BERKMAN,

MELvIN L. Wutr,

Attorneys for American

Civil Liberties Union

and Ohio Civil Liberties

Union, Amici Curiae.

= REPEL RETR LIT MON ON TRIE SOREN IRIE ENE USI RM OS sine ar SOS