# Motion — Sheppard v. Maxwell

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Motion
- **Published:** January 1, 1966
- **Citation:** 384 U.S. 333

## Text

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).

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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

. Oat 4 Dt __reane —
aes RT OE TS I ON TROON NS RT

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386411_0269%3A04. Public record. Not legal advice.