Amicus Curiae Brief — Sheppard v. Maxwell

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JAN 2 419

JOHN F. DAVIS, C

Supreme Court of the United States

Octoser Term, 1965.

No. 490.

a aie

SamvueLt H. SHEPPARD,

Petitioner,

E. L. Maxwetxi, Warden,

Respondent.

BRIEF OF AMERICAN CIVIL LIBERTIES UNION AND

OHIO CIVIL LIBERTIES UNION, AMICI CURIAE

Bernarp A. BERKMAN,

1320 The Superior Building,

Cleveland, Ohio 44114.

Metvin L. Wutr,

156 Fifth Avenue,

New York, New York.

Attorneys for American Cwil

Liberties Union and Ohio Cwil

Liberties Union, Amici Curiae.

TABLE OF CONTENTS

PAGE

I III Sicticecncceciteiicnicitdianalissscinniotepiatistatiabiipeaaciibal 1

I Ge ND i ccteniccsinttithinttncnreniinitiinetianiis al

a A” . 10

Argument ———

I. Damaging Publicity Induced by Lay Wnforce-

ment Authorities

. Damaging Publicity Describing Prosecution

Evidence Which Varies Materially from That

Introduced at Trial by the Prosecution -.......... 19

III. Damaging Publicity Describing Prosecution

Evidence Which Would Be Inadmissible in

Court

. Putlicity Which Makes Celebrities of the Trial

Jurvrs

. Accusatory Publicity Which Charges Guilt or

Attacks the Character or Reputation of the

Accused

Conclusion ...

APPENDIX :

Opinion of the District Court

TABLE OF AUTHORITIES

PAGE

Cases

Adamson v. California, 332 U, S. 46 (1947)... 12

Alcorta v. Texas, 355 U.S. 28 (1957) ........--ececeeresneeneneene 19

Beck v. Ohio, 379 U.S. 89 (1964) .....--.---ceccecesneensnnenennensensens 19

Brady v. Maryland, 373 U.S. 83 (1963) -...----------ss----e- 19

Bridges v. California, 314 U. 8. 252 (1941) ........ 2, 11, 26, 27

Cox v. Lowisiana, 379 U. S. 559 (1965) ......-------0-ceeeereeees 12

Craig v. Harney, 331 U. S. 367 (1947) -...-----re-eeee-neero- 2,11

Escobedo v. Illinois, 378 U. S. 478 (1964) -......-------------- 17

Estes v. Texas, 381 U. 8. 532 (1965) ....3, 10, 12, 13, 14, 15, 24

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

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

2d 187 (App. Lucas 1960) 22

Gideon v. Wainwright, 372 U. S. 335 (1963) .........--- 10, 12, 13

Griffin v. California, 380 U. S. 609 CORTE <hctiencene 12, 19, 22

Irvin v. Dowd, 366 U. S. 717 (1961) ...........- 2, 3, 12, 13, 18, 19

Jackson v. Denno, 378 U. S. 368 (1964) ........------------ee-0- 12

Janko v. United States, 366 U. S. 716 (1961) .......... 3, 12

Mapp v. Ohio, 367 U. S. 643 (1961) -...--------rom--evwseeeneeensnnee 19

Marshall v. United States, 360 U. S. 310 (1959) ............ 3,12

Mooney v. Holohan, 294 U. S. 103 (1935) -....--------00- 16, 19

Murchison, In re, 349 U. S. 133 (1955)... see 10, 13

Napue v. Illinois, 360 U. S. 264 ear 19

-_—

iii

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

Parker v. Friendt, 99 Ohio App. 329 (Cuyahoga 1954) .. 22

Patterson v. Colorado, 205 U.S. 454 (1907)... 4, 21

Pennekamp v. Florida, 328 U. 8. 331 (1946) ........ 2, 11, 15, 20

Pointer v. Texas, 380 U.S. 400 (1965) 20... eceeeeeeeeeeeeee 12

Rideau v. Louisiana, 373 U. 8. 723 (1963) ........ 3, 10, 12, 13,

| 14, 15, 18

Shepherd v. Florida, 341 U. 8. 50 (1951) ............ 3, 12, 18, 20

Sheppard v, Maxwell, 231 F. Supp. 37 (S. D. Ohio 1964) 9

Sheppard v. Ohio, 352 U. S. 910, 955 (1956) ................ 8

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

471 (1955) .. : 8

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

504 (1955) ...... 8

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

(1956) 8

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

(1956) 6,8

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

N. E. 2d 94 (1960) ............... 9

Stroble v. California, 343 U. S. 181 (1952) ....3, 12, 13, 15, 18

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

Tumey v. Ohio, 273 U.S, 510 (1927) 2... eeeeeecevececseeeeees

Turner v. Louisiana, 379 U.S. 466 (1965) 2.0.0.2...

White v. Muryland, 373 U.S. 59 (1963)

Wood v. Georgia, 370 U. 8. 375 (1962) .....

PAGE

Constitution

Constitution of the United States:

First Amendment 1, 27

Fifth Amendment 22

Sixth Amendment ..... 12, 22, 25

Fourteenth Amendment 1, 12, 25

Miscellaneous

Annotation, 23 ALR 2d 1308 Air OOD 22

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

een eee as ee, 3 C0) 4

Padover, Democracy, 150-151 26

Report of The President’s Commission on the Assassi-

nation of President John F. Kennedy (1964), pp.

231-242 3,18

—_

Supreme Court of the United States

October TERM, 1965.

No. 490.

—»>—_—,

SamvueL H. SHEPPARD,

Petitioner,

—VS.—

E. L. Maxwe.i, Warden,

Respondent.

BRIEF OF AMERICAN CIVIL LIBERTIES UNION AND

OHIO CIVIL LIBERTIES UNION, AMICI CURIAE

Interest of Amici

The American Civil Liberties Union and its Ohio affili-

ate, the Ohio Civil Liberties Union, are organizations dedi-

cated to the preservation of a free and open society, prin-

cipally through the protections embodied in our Bill of

Rights and the Fourteenth Amendment to the United

States Constitution.

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.

We note the significant role that a free press plays in

helping to establish and preserve that free society; nothing

which follows diminishes in any respect our full support

sea

for the broadest latitude of public expression in the news

media and elsewhere. This Court has amply demonstrated

its own dedication to these principles. But it is equally

clear that freedom without justice is an empty view. “The

safety of society and the security of the innocent alike

depend upon wise and impartial criminal 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 observed 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 crim-

inal trial amidst inflarnmatory publicity in an aroused

community—presents serious and complex problems to

those who would defend the principles of both freedom and

justice. As the quantum and the techniques of the com-

munications media continue to expand, as the public thirst

for the contemporaneous details of notorious criminal

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

administration of this most difficult task.

1See 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).

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

opinion).

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

opinion).

In recent years, this question has been thrust forcibly

and dramatically before the attention of the American

public.*

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 constituticnal

principles to guide the trial courts through this most sensi-

tive area of criminal due process. For, through the aus-

pices of the Great Writ,* a number of varieties of preju-

dicial trial and pretrial publicity have been preserved for

review by this Court.

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

tunity for this Court to further delineate the federal con-

stitutional standards of criminal due process as they relate

*Report of The President’s Commission on the Assassination

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

perience 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.

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. 8. 723 (1963); Estes v.

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

50 (1951) (coneurring 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 al-

ways be accountable to the judiciary for a man’s imprisonment;

if the imprisonment cannot be shown to conform with the funda-

mental requirements of law, the individual is entitled to his

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

to inflammatory publicity surrounding notorious trials,

and in the hope that in some measure @mict 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 brief is filed.

The written consent of the parties to this appearance

amicus has been obtained and filed with the Clerk of the

Court.

Statement of Facts’

On December 21, 1954, petitioner, Samuel H. Sheppe cd,

was convicted of murder in the second degree for the slay-

ing of his wife after a sensational jury trial which cap-

tivated 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 uneon-eious while grappling

with an unidentifiable white form standing next to his

wife’s bed. He further stated that uper recovering, he pur-

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

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

Mt. L. Rev. 1 (1960).

* Except as otherwise indicated, the fac’s have been taken from

an agreed pretrial order set out in full in the opinion of the

district court; the pretrial order is reprinted in the appendix

to this brief at 2a-Ga.

RATERS AREER IER BE COR APIEL a atte eat fs :

. x tw pay i ee eee ee ene eb ae rae

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

while struggling on the shore. Petitioner has consistently

denied guilt from the date of the murder until and includ-

ing the present time. He at first denied, but later admitted

having had sexual relations with a former employee of the

hospital upon whose staff petitioner served as a doctor of

osteopathic surgery. The prosecution convended that this

affair was ihe 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 custedy thereafter until

his trial. The nine-week trial began on October 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 of the murder, the pretrial investiga-

tion and the subsequent trial was massive, detailed, per-

vasive, inflammatory, colorful and “not of a nature cal-

culated to inspire confidence in the objectivity and good

taste of the publie 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

§. 23, majority opinion of Sixth Cireuit Court of Appeals.

Throughout this brief, the prefix “S” followed by a page number

refers to the appendix attached to the petition for certiorari.

A page number followed by an “a” refers to the appendix at-

tached to this brief, and the prefix “R” followed by a page

number refers to the transcript of the record.

unparalleled in recent annals. Throughout the prein-

dictment investigation, the subsequent legal skirmishes

and the nine-week trial, cireulation-conscious editors

catered to the insatiable interest of the American pub-

lic in the bizarre. Special seating facilities for report-

ers and columnists representing local papers and all

major news services were installed in the courtroom.

Special rooms in the Criminal Courts Building were

equipped for broadcasters and telecasters. In this at-

mosphere 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 petitioner’s

murder trial is beyond the scope of this statement of

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

er’s habeas corpus application, however, the damaging trial

and pretrial 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 of-

fered at trial by the prosecution.”

11 Examples of some of the newspaper clippings, photographs

and editorials which appeared in Cleveland journals are appended

to the petition for certiorari and this brief. 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 Appeals.

Additional examples are discussed in the argument, infra.

2 Bg. 8. 110, S. 125, 8. 126, S. 127, 54a-55a.

18 B.g., S. 109, S. 110, S. 126, S. 127, 13a-14a, 44a-45a, 47a.

NE oa RPI METAY ee

_ ae

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 continu-

ance, change of venue and mistrial both before and re-

peatedly during the trial.’ All such motions were denied

by the trial court.”

During the course of the jury empanelling, 13 of ihe 64

prospective jurors examined were dismissed for cause be-

eause they had prejudged the guilt or innocence of the ac-

cused."®

While the jurors who were ultimately empanelled were

sworn to impartiality, eleven of the twelve who returned

the verdict admitted exposure to the pretrial publicity,”

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 asserting that,

“ E.g., 8. 119, S. 120, 10a, 12a, 13a, 21a, 37a, 54a.

'S E.g., 8. 103, S. 105, S. 106, 8. 107, S. 108, S. 128.

'® E.g., S. 115, S. 116, S. 117, S. 118, S. 119, S. 120, S. 121, 8. 122,

8. 123, S. 124, S. 125, S. 126, S. 129, 23a, 24a, 30a, 58a, 60a.

" R. 4, 119, 818, 1352, 1614, 1617-18, 1633, 2355, 3719, 5009, 6815.

*S R. 1352-1354.

*R. 46, 48-49, 180, 284, 288, 331, 336, 338, 740, 746, 884-5,

1023-4, 1043-4, 1157, 1161, 1511.

0 R. 52, 184, 347, 352-3, 418, 437, 440, 461, 475, 482, 750, 762,

1114, 1214, 1240, 1306, 1342, 1464-5, 1492, 1547.

* R. 61-2.

—

during the period of more than three months between the

murder and the commencement of the trial, she had hoard

nothing about the ease, admitted receiving the Cleveland

Press daily at her home.”

‘

The trial court did not sequester the jury; consequently,

all of the jurors were permitted to return to their homes

when court was not in session during the nine-week trial,

Since his convietion and the denial of his motion for now

trial, petitioner's attempt to obtain a new trial has been

the subject of sustained litigation for the past cloven years,

Roth his conviction and the denial of his motion for now

trial were affirmed by the Court of Appeals for Cuyahoga

County, Ohio. The Ohio Supreme Court dismissed an ap

peal from the decision affirming the denial of a new trial”

and affirmed the conviction,” two judges dissenting, Ap

plication for certiorari was denied by this Court and his -

application for rehearing was also denied.” Petitioner's

eR. UM, 17-8, 142.

* State v. Sheppard, 100 Ohio App. 349, WS N, KR. dd 471

(IMS) ; State v. Sheppard, 100 Ohio App, 899, IWS No BK. 2d O04

(1999),

* State v. Sheppard, 164 Ohio St, 428, IW) N. Bd S87 (1998)

*® State v, Sheppard, 163 Ohio St. 298, 1d NL BR. 2a HO (196),

* Sheppard v. Ohio, 342 UL 8, O10 (1948), Justice Frank

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

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

petition im Re wise implies that this Court approves the decision

of the Supreme Court of Ohto |denying petitioner's claim that

the pndlicity surrounding his trial deprived him of due process

ef jaw). 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.” (Rmphasis and bracketed material supplied.) 342 US.

910, 911 (1956),

* Sheppard vy. Ohio, 352 U.S. 955 (1956),

S96 oe

subsequent petition for a writ of habeas corpus to the Ohio

Supreme Court was denied,”

On April U1, 1963, petitioner filed an application for a

writ of habeas corpus in the United States Distriet Court

of the Southern District of Ohio, charging that his convie.

tion was constitutionally defective in a number of respects,

imeluding 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 ex-

amining the trial and pretrial publicity and other matters,

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

vietion was, therefore, inconsistent with the United States

Constitution, ordered his release on bail from the Ohio

Ponitentiary where he had been confined under a life sen-

tence since his convietion in 1%4, and granted the State of

Ohio sixty days within which to take further action against

petitioner,”

Respondent appealed the order of the United States Dis-

trict Court which voided the state court conviction, On

May 5, 1963, the Sixth Cireuit Court of Appeals (two 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 rehearing was

denied and on July 26, 1963, the Court of Appeals stayed

the mandate pending application for certiorari to this Court,

® State ex ret. Sheppard v, Alvis, 170 Ohio St. 551, 167 N. BE. 2d

4 (1960),

® Sheppard v. Macwell, 231 F. Supp. 87 (S. DD. Ohio 1964). See

pertinent excerpted material from this opinion reprinted at pp.

la-dia, tnfra.

* The opinion of the Court of Appeals is reported at S46 F. 2d

TOT (6th Cir, 1969) and is reproduced in the appendix to the

petition for certiorari at S. 1.

—"

Petition for writ of certiorari was filed August 24, 1965

and was granted on November 15, 1965.*" The petitioner re-

mains at large on bail.

Summary of Argument

In protecting due process of law, this Court has fre-

quently held that, in order to reverse a conviction, actual

prejudice to the accused need not be shown where the cir-

cumstances were inherently suspect constitutionally. Tumey

v. Ohio, 273 U. S. 510 (1927); Im re Murchison, 349 U. S.

133 (1955); Gideon v. Wainwright, 372 U. S. 335 (1963) ;

White v. Maryland, 373 U. S. 59 (1963); Turner v. Louwi-

siana, 379 U. S. 466 (1965). This principle has been recently

applied to reverse state criminal convictions on the ground

that prejudice was inherent in the trial and pre-trial pub-

licity, without a showing of actual prejudice to the accused.

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

381 U. S. 532 (1965).

Certain types of trial and pre-trial publicity, all present

in quantity and intensity in the case at bar, are inherently

prejudicial to the accused because they necessarily deny

him a fair trial by both judge and jury.

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 offered

at the trial by the prosecution.

51 86 S. Ct. 289 (1965).

RSI iDEA [SE AO ROR SE BELO HIME EER PVE LESS IMCL TE NOOR LTE LTS A RT

Ill. Damaging publicity describing evidence which, if of-

fered by the prosecution at trial, would have been

inadmissible and constitutionally prejudicial.

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 enforcement

authorities, which charges guilt or attacks the char-

acter or reputation of the accused.

Petitioner has, consequently, been denied due process of

law and is entitled to habeas corpus relief.

Argument |

A:ihough this Court has scrupulously guarded the right

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

editorial comment about pending judicial proceedings virtu-

ally 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

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

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

eountenanced in an orderly society,” subject only to the require-

ment of the clear and present danger standard, defined as “a work-

ing principle that the substantive evil must be extremely serious

and the degree of imminence extremely high before utterances

ean be punished.” See also Craig v. Harney, 331 U. 8S. 367 (1947) ;

Pennekamp v. Florida, 328 U. S. 331 (1946); Wood v. Georgia,

370 U. S. 375 (1962).

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

the denial of certiorari on his direct appeal.

——

trial* of untrammelled publicity, 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

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 pub-

licity “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 begin-

ning with Stroble v. California, this Court apparently re-

5 The source ot 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 stand-

ing alone or coupled with the Sixth Amendment. Whether the

Sixth Amendment as a whole applies to the states through the

Fourteenth, ef. Adamson v. California, 332 U. 8S. 46, 71-72 (1947)

(dissenting opinion) ; Griffin v. California, 380 U. 8. 609 (1965),

or the Fourteenth Amendment includes the “fundamental” por-

tions 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. 8S. 400, 408 (1965) (concurring opinion), state

prosecutions must meet the constitutional guarantee of fair trial.

Cox v. Louisiana, 379 U. 8. 559, 562 (1965); Jackson v. Denno,

378 U.S. 368, 377 (1964).

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

United States, 366 U.S. 716 (1961).

3 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) (coneurring opinion) ;

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

3? Estes v. Texas, 381 U.S. 532, 578 (1965) (concurring opinion).

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

each juror was siucere 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.”

_—

quired a showing of actual prejudice to the defendant

before reversing a conviction on the ground that inflamma-

tory publicity had contaminated the trial.” In subsequent

eases, however, “the Court departed from the approach it

charted in Stroble v. California” * and reversals were ac-

complished 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, 5382 (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 between the

State and the accused, denies the latter due process

of law.” (Emphasis supplied.) *

In In 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

actual bias in the trial of cases. But our system of law

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

366 U.S. 717 (1961).

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

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

381 U. S. 5382 (1965). Accord: Turner v. Louisiana, 379 U. 8.

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

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

*. Quoted with approval in Estes v. Texas, 381 U. S. 532, 543

(1965).

has always endeavored to prevent even the probability

of unfairness. * * * [TJo 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 criminal trials, For where

such trial contamination is charged, “one cannot put his

finger on its specifie mischief and prove with particularity

wherein he was prejudiced.” “

In cases involving both published confessions* and dan-

aging accusatory publicity,’ this Court has reversed con.

victions because of the inherently unconstitutional cireum-

stances 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 material

disagreement about the extent or nature of the damaging

publicity which inundated the community in which peti-

tioner stood trial for murder, vither in the opinions affirm.

ing his conviction on direct appeal or those in the 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 inherently prejudicial.

They held instead that the burden upon the petitioner of

* Tdid,

** Td. at 544.

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

*@ Estes v. Texas, 381 U.S. 582 (1965).

_—

demonstrating the constitutional invalidity of his convic-

tion was “one which must be carried ‘not as a matter of

speculation but as a demonstrable reality’,” upon the au-

thority, infer alia, of Stroble y, California, 343 U, 8. 181

(1952),*" and that petitioner had not met that burden,

In seeking reversal of the decision of the Court of Ap-

peals, amici do not claim that all criminal trials conducted

in the context of massive publicity are, without proof of ac-

tual 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 on the

course it has charted in Rideau and Estes avi rule that cer-

tain specific types and varieties of pretrial and trial pub-

licity,* all present in quantity and intensity in the case at

bar, are inherently prejudicial to the accused, because they

necessarily deny him a fair trial by both judge and jury.”

*"S. 8. This ruling was made despite the implications of Rideau

vy. Louisiana, 373 U, 8. 723 (1963) and persisted upon application

for rehearing after Estes v. Teras had made it clear that this

Court had departed from the Stroble approach. 381 U. S, 532

(1965), S. 111-113.

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

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

nated during trial, both pretrial and trial publicity will be con-

sidered together,

* Throughout this brief it is presumed that the evil in inflam-

matory 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 blndgeoning or

poisonous comment has power to influence or at least to disturb

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. 8. 331, 359

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 offered

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 prejudicial.

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 enforcement

authorities, which charges guilt or attacks the

character or reputation of the accused.

Each of these matters will be considered in sequence

below.”

(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

erusaded vigorously to have petitioner arrested and convicted

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

8° There is no question here about the requisite “state action”

to permit this Court to find a federal constitutional violation in

each of the varieties of pretrial and trial publicity described

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

demonstrates the necessary state action. Mooney v. Holohan, 294

U. §. 103 (1935). In (II), (III), (IV), and (V), it must be

underscored that the constitutional impediment to a trial con-

ducted in the midst of such publicity lies not in the fact that

the independent press published the material in question, but

rather because the trial court failed to protect the impartiality

Damaging publicity induced by law enforcement au-

thorities.

There can be no question but that the police, the county

prosecutor, the county coroner and other law enforcement

officials were the cooperative sources, if not the immediate

eause of much of the inflammatory publicity in the news

media of which petitioner complains. Quotations from

policemen and detectives concerning their opinions as to

petitioner’s guilt and lack of character,” police threats to

interrogate him as a suspect without his attorney present,”

assertions by the prosecution’s medical expert that peti-

tioner’s claimed injuries had been falsified, publication of

“mug shots” of petitioner which could only have come from

official jail records,‘ published conclusions of the police

and prosecutors that they had “convicting evidence” of

petitioner’s guilt,’ and predictions of a “bombshell wit-

ness” (with a detailed description of his prospective direct

testimony) to be produced at the trial by the prosecution

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 discre-

tion 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 49, supra.

51 E.g., S. 110, S. 126, 56a.

52 54a. Cf. Escobedo v. Illinois, 378 U. S. 478 (1964).

58 54a-55a.

5 EB.g., S. 125.

55 60e-61a.

6 E.g., S. 127.

(but who ultimately never testified in court) are illustrative

examples. One police captain even urged petitioner’s arrest

for murder in a public statement from Miami where he

had been vacationing, thousands of miles from the scene

of the local investigation.”

It seems clear enough that

“To have the prosecutor himself feed the press with

evidence that no self-restrained press ought to publish

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 au-

thorities is prevalent in most highly-publicized trials,

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.”

57 56a.

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

opinion).

°° B.g., Stroble v. California, 343 U. S. i181 (1952) (prosecutor

released confession to press even before defendant had completed

his statement) ; Shepherd v. Florida, 341 U. 38. 50 (1951) (news-

papers published confession of defendant and attributed infor-

mation to sheriff; confession never offered at trial); Irvin v.

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

intensively publicized press releases stating that petitioner had

confessed to six murders); Rideau v. Louisiana, 373 U. 8. 723

(1963) (accused interviewed in jail by sheriff for television).

And see official account of opinion-molding and 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.

eee

———

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 1.sed effectively by this Court as a de-

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

constitutionality in a highly publicized trial where law

enforcement authorities actively participated in the in-

flammatory press releases would assist materially in elimi-

nating the practice of “anticipatory trial by newspapers”

which currently impairs our administration of criminal jus-

tice.

II.

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 prosecution

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

° B.g., Mapp v. Ohio, 367 U. S. 643 (1961) (evidence obtained

by illegal search and seizure) ; Beck v. Ohio, 379 U. 8. 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); Alcorta v. Tezas,

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).

testimony” (although he never appeared as a rebuttal wit-

ness for the state at the trial), and newspaper revelation of

the direct testimony of a prospective prosecution “bomb-

shell 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. Flor-

ida, 341 U. S. 50, 52 (1951), has pointed out:

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

ant’s counsel can meet them with evidence, arguments,

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-

62 §. 110, 47a.

63 §, 109, 44a-45a.

64 Discussed supra, pp. 17-19.

a —

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 testi-

mony 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

preventing interference with the course of justice by pre-

mature 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.

Ill.

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 pubiic, but who never appeared in

court to subject themselves to cross-examination, is the

dissemination of evidence which clearly cannot be offered

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

inadmissible.

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

Such material abounds in the case at bar. For example,

the publication of petitioner’s pretrial refusal to subject

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

the police, coupled with the editorial suggestion that

such suspicious conduct was indicative of his guilt® un.

doubtedly 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 woul’ have been inadmis-

sible in court because of the well-known unreliability of

“lie detectors” and “truth serum,” “ or for the constitutional

reasons that comment upon such refusal would invade (*)

his Fifth Amendment privilege to refuse to testify 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 pretrial 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 community already and

which he would only have re-emphasized by objecting—and

*¢ S119, 120, 10a, 12a, 13a, 21a, 37a, 54a,

** Ohio v. Smith, 118 Ohio App. 461, 462-3 (Lucas 1960) ;

Parker vy. Friendt, 99 Ohio App. 829, 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.

** See Griffin v. California, 380 U. 8. 609 (1965).

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

w sia ia ace

the subsequent determination by the Court of Appeals that

the constitutional question had been waived by his con-

duct.”

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 determiied 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 motions for con-

tinuance, change of venue, and later, mistrial, should have

been granted by the trial court as a constitutional 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-

§. 47.

" §. 103, 105.

—

tion with this case and add color to the community pageant

which was petitioner’s murder trial.”

Since the jury was not sequestered, it may be presumed

that the jurors were aware of the treatment accorded 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 intense

public feeling which is aggravated by” intense publicity

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

process,” those jurors “eannot 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 neighbors 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 com-

mentary and criticism and perhaps the well-meant advice

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 ia performing

72 §, 106, 107, 108, 128.

78 381 U. S. 532 (1965).

1 Td. at 545-46.

Se MONT ONPG RL TO AINE IITA RMIEIIRE SW —

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.

Vv.

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 chron-

icled 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 product

has been alternately described as “shameful journalism,”

“certainly not conducive to the judiciary’s continuing con-

cern 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 some-

times shabby pre-trial exhibitions of the press.” ”

*§. 5.

®§. 14.

7§, 23.

*§. 23.

”§. 32.

It may well be that newspapers may be expected to per-

form no more nobly than they did in the early days of our

country.” But the technological improvements in the com-

munications inedia in the past two hundred years 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 tie criminal investigation, and using his

social position and friends in high places to conceal his

dirty work. The victim was characterized as a devoted

mother and dutiful wife, while petitioner was portrayed

as a selfish philanderer who indulged himself in extrava-

gant purchases while denying his wife necessities.*

80 See letters of Thomas Jefferson as set out in Padover, Democ-

racy, 150-151, reported in Bridges v. California, 314 U. S. 252,

270, fn. 16 (1941): “I deplore * * * the putrid state into which

our newspapers have passed, and the malignity, the vulgarity,

and mendacious spirit of those who write them. * * * These

ordures are rapidly depraving the public taste.”

818. 115, S. 116, S. 117, S. 118, §. 119, 8. 120, S. 121, S. 123,

S. 124.

82 §. 122, S. 129.

8° §. 126.

**§. 125, S. 127.

85 60a. .

During the trial, radio broadcaster Robert Considine

stated on a network program that petitioner’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 robbery had revealed

that petitioner was the father of her illegitimate child.*

Despite our nation’s cultural and historic dedication to

the First Amendment principle of freedom of expression,

by word and in print, the news media must be reminded

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 conviction.

Such a ruling would impress the news media, voluntarily

and without judicial compulsion, to recognize their respon-

sibilities 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.

** R. 3723.

* R. 5427.

** Bridges v. California, 314 U. S. 252, 283 (1941) (concurring

opinion).

*° Id., at 271.

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 pub-

licity which saturated the community in which he stood

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

decision of the Sixth Circuit Court of Appeals and grant

the petitioner's application for a writ of habeas corpus, In

doing so, this Court will have the opportunity to correet

at last an egregious denial of criminal due process and, at

the same time, provide working solutions for some of the

difficult and delicate problems of free press and fair trial

which currently beset the administration of criminal justice,

Respectfully submitted,

Brrnarp A, BerkMan,

1320 The Superior Building,

Cleveland, Ohio 44114.

Maeuvin L. Won,

156 Fifth Avenue,

New York, New York.

Attorneys for American Civil

Liberties Union and Ohio Civil

Liberties Union, Amici Curiae,

PENDIX

Opinion of the District Court

UNITED STATES DISTRICT COURT

SoutHern District or OnI0

Eastern Division

Civil No. 6640. Decided July 15, 1964

SHEPPARD,

Petitioner,

eRe es

MAXWELL, WARDEN, ET,

Respondent.*

eR —

Weinman, Cuier Jupce. This matter is before the Court

upon a petition for a writ of habeas corpus filed against the

Warden of The Ohio State Penitentiary in Columbus, Ohio,

where petitioner is incarcerated pursuant to a judgment of

the Court of Common Pleas of Cuyahoga County, Ohio, upon

a conviction of murder in the second degree.

When the Court took this matter under advisement, a pre-

trial conference was held to discuss the procedures to be fol-

lowed in presenting the issues in the case. The purpose of

that conference, and similar ones which followed, was to ex-

pedite the case in its preparation and presentation for final

determination. As a result of the first conference, it was

agreed that all preliminary proceedings would be by pre-

*Only excerpts from the opinion of the court related to trial

and pretrial publicity are reprinted here. The opinion in full may

be found at 231 F. Supp. 37 (S. D. Ohio 1964).

Opinion of the District Court

trial orders; those orders to be by agreement of counsel

and/or by order of the Court.

One of the pre-trial orders agreed upon and filed by

counsel for the parties sets forth the history of the case.

That history, with the references to exhibits attached to the

pre-trial order omitted, is as follows:

“Petitioner, Samuel H. Sheppard, was in July, 1954, a

resident of Bay Village, Ohio, a suburb on the west side of

Cleveland. He was a doctor of osteopathic medicine, special-

izing in Surgery, and a member of the staff of the Bay

View Hospital. He was thirty years of age and was married

to Marilyn Reese Sheppard, also thirty. They had _ been

married for nine years and had one son, aged seven. Peti-

tioner and his family lived in a house on the shore of Lake

Erie, which house was owned by Marilyn. Petitioner was

associated in the practice of medicine with his father and

two older brothers, all doctors. “e was in comfortable

fmancial circumstances. __

“On the night of July 3, 1954, petitioner and his wife en-

tertained friends, Don and Nancy Ahearn, in their home.

The Ahearns left at approximately 12:30 a. m., July 4, 1954;

Marilyn saw them to the door, for petitioner was or ap-

peared to be asleep on a couch in the living room. The

evening had been a congenial one, and the Ahearns observed

no indications of hostility between petitioner and his wife

(who was pregnant) at any time during the evening. In

fact, there were overt manifestations of affection between

them.

“Shortly before 6:00 A. M. a telephone call was received

from petitioner by J. Spencer Houk, mayor of Bay Village

and a friend of petitioner. Houk lived two houses distant

Opinion of the District Court

from the home of petitioner. Houk heard petitioner say:

“My God, Spence, get over here quick, I think they have

killed Marilyn.’

“Houk dressed and with his wife, Esther, drove within a

short time the few hundred feet to petitioner’s home. Upon

arrival the Houks found petitioner on the first floor of the

house. His face showed some injury, and he complained of

pain in his neck. Esther Houk went up to the bedroom, at

the suggestion of petitioner, to check on the condition of

Marilyn Sheppard. She found Marilyn lying in a pool of

blood on the bed. She was dead. The room was covered

with splattered blood. It was determined that she had

suffered some thirty-five blows about the head by some

blunt instrument, causing death. There was some conflict as

to how long she had been dead when discovered by the

Houks.

“The story given by petitioner to police and at the trial,

was substantially as follows: As he was sleeping on the

couch, he was awakened by a noise coming from the second

floor. He thought he heard his name called. He went up

the stairs, which was dimly lit by a light in the hall. He

recognized only a white ‘form’ standing next to the bed

where his wife slept. He grappled with the form, and

was struck on the back of the neck which rendered him

unconscious. Before losing consciousness petitioner heard

loud moans, as if from someone injured. When petitioner

recovered consciousness, he examined his wife, found or

thought that she was dead, determined that his son (in an

adjacent room) had not been harmed, and then, hearing

noise of some sort on the first floor, ran down. He saw a

form running out the door of the house nearest to Lake

Opinion of the District Court

Erie, and pursued it to the shore. There he struggled

again, and again lost consciousness. When he came to,

he went back to the house, re-examined his wife, and called

Mayor Houk. Petitioner was unable to establish (1) the

number of people in the bedroom at the time of the first

encounter or the time of said encounter; (2) the duration

of his unconsciousness on either oceasion, or (3) the sex

or identity of any of the single or several assailants he

encountered. He stated that his perceptions had been vague

because he was asleep at the outset of the chain of events,

and unconscious twice as it progressed.

“In the course of interrogations by police and the County

Coroner, petitioner was asked if he had had sexual relations

with one Susan Hayes, an ex-employee of the hospital, in

March, 1954, in Los Angeles. Petitioner denied this, but

later admitted it when confronted with her statement of the

affair. The state contended that Miss Hayes was the motive

for a premeditated murder, but the jury returned a verdict

of murder in the second degree.

“The murder of Marilyn Sheppard captivated the atten-

tion of news media in an unprecedented manner. “ditorials

on the first page of a leading Cleveland newspaper, and

news media generally, set up a hue and ery for a solution

to the erime. An inquest was demanded and held, and

petitioner’s arrest was suggested most strongly by at least

one leading newspaper. On July 30, 1954, petitioner was

arrested; he was admitted to bail, and indicted a few days

later, on August 17, 1954. He has been in custody ever

since.

“The trial began on October 18, 1954, and on December

17 of the same year the cause was submitted to a jury in

Opinion of the District Court

the Court of Common Pleas of Cuyahoga County, On De-

cember 21st the verdict of guilty of murder in the second

degree was returned, and petitioner was sentenced to life

imprisonment in the state penitentiary at Columbus, Ohio,

where he is now detained in the custody of respondent.

“The details of the trial, which fill over seven thousand

pages in the bill of exceptions, are not recited here; it is the

understanding of counsel for both sides that it was not the

purpose of this history to describe the voluminous evidence.

“On January X, 1955, the trial court overruled a motion

for new trial which had been base@ or memerous assign-

ments of error occurring during trial and deliberation * * * .

“On May 9, 1955, the trial court denied a supplemental

motion for new trial on ground of newly discovered evidence

and based upon the affidavit of Paul Leland Kirk, a crimi-

nologist, who claimed to have demonstrated that blood tests

made in the murder room proved the existence of blood

which did not come from the defendant or the deceased.

This evidence was not obtained until after the verdict had

been returned.

“On July 20, 1955,' the Court of Appeals of Cuyahoga

County aflirmed the conviction of petitioner; and on July

25, 1955 the same Court affirmed the denial of the second

motion for new trial * * °,

“On May 31, 1956, the Ohio Supreme Court affirmed the

action of the Court of Appeals as to the case in chief, but

did not diseuss or pass upon the alleged newly discovered

evidence. Two Judges dissented, expressing the view that

Sheppard should be accorded a new trial * * *.

‘It is a minor point, but the Court notes that several of the dates

of decisions are incorrectly stated.

Opinion of the District Court

“Qn November 14, 1956, the Supreme Court of the United

States denied a petition for certiorari; application for re-

hearing was denied on December 19, 1956 * * * .

“On September 5, 1960, Chief Justice Weygandt denied

an application for a writ of habeas corpus in the Ohio

Supreme Court; the petition therefore was dismissed on

May 5, 1961.

“On April 11th, 1963, petitioner filed a petition for a writ

of habeas corpus in this Court, which is the action giving

rise to this order.

“Petitioner, Samuel H. Sheppard, has at all times main-

tained that he was not guilty of the murder of his wife, and

that he knew no more about said death than he told at the

trial.”

e * * e o

(1) Was the publicity before trial and/or durmg trial

such that it violated petitioner’s constitutional rights?

(issues numbered 3, 4, 5, 6, 7 and 8). With regard to this

issue, counsel have submitted into evidence, by agreement,

the following documents, materials and stipulated facts:

1. A copy of the petition for a writ of certiorari to the

United States Supreme Court, Sheppard v. Ohio, Number

352, October Term, 1956, and the Appendix to that petition.

There was, of course, no stipulation as to the accuracy,

factual or legal, of the allegations and arguments con-

tained in the petition. However, it was agreed that the

exhibits reproduced in the Appendix accurately portrayed

the documents and materials which they purported to repre-

sent.

___—_

Opinion of the District Court

2. Pages 3723 to 3725, pages 4266 to 4268 and pages 5427

to 5430 of the Bill of Exceptions.

3. Five volumes of green covered scrap books of news

clippings from the Cleveland Press, the Cleveland News

(which has since merged with the Cleveland Press) and

the Cleveland Plain Dealer. These scrap books contain

substantially all of the clippings relating to the Sheppard

case which were published by these three newspapers

during the period from July 1954 through December 1954.

4. The fact that there was published in all three Cleve-

land newspapers previously referred to, and particularly

on September 23, 1954, 25 days before the selection of a

jury began, a list of 75 veniremen who had been drawn

as prospective jurors in the Sheppard case, giving the full

name and street address of each juror listed.

5. The fact that the 13 petit jurors who heard the evidence

and decided petitioner’s case were allowed to go to their

homes each night during the trial, and were not sequestered

or kept apart until after the court’s charge, at which time

the jury was committed to the custody of two bailiffs and

were thereafter kept under constant guard and supervision

during their deliberations and until their verdict had been

returned in open court.

6. The fact that the trial judge, before the commencement

of the trial, made certain arrangements with respect to the

seating whereby a major portion of the courtroom where

the case was to be tried was assigned to the news media.

Opinion of the District Court

Prior to commencement of trial, counsel for petitioner

made a number cf motions for change of venue or for

continuance. The trial judge held these motions in abeyance

until after the jury was selected; after which he overruled

each of the motions.

Newspaper publicity before trial. The first question to

be considered is whether the trial judge erred in overruling

the aforesaid motions and proceeding with trial in view of

the newspaper publicity before trial. It would be imprac-

tical to quote each newspaper article which bears upon this

question; therefore, the Court will set forth only those

articles and headlines which it believes to be most relevant:

“STATE PREPARES CHARGE AGAINST BAY

MURDERER”

“NEW SEARCH IS ORDERED FOR CLEWS”

«“ ‘The state is already preparing its case against the killer

of Mrs. Marilyn Sheppard.’

“This statement was made today by Assistant County

Prosecutor John J. Mahon as he directed a surprise new

search of the Bay Village home in which the 30-year-old

clubwoman was beaten to death Sunday morning.

“Mahon sharply criticized the refusal of relatives to per-

it the immediate questioning of the victim’s husband, Dr.

Samuel Sheppard, also 30. _

“While the prosecutor spoke, Dr. Sheppard, his injured

neck supported by a brace, was being taken out of Bay

View Hospital in a wheelchair to attend his wife’s fu-

neni * * *”

Cleveland Press, July 7, 1954, p. 1.

Opinion of the District Court

“TESTIFY NOW IN DEATH, BAY DOCTOR IS

ORDERED”

“A forthwith subpena commanding Dr. Sam Sheppard,

husband of the clain [sic] Bay Village woman, to appear at

the county prosecutor’s office for questioning was isswed

today.

“It was hastily issued by Coroner Samuel R. Gerber

following a session at the doctor’s bedside in Bay View

Hospital.

“Deputy Sheriff Carl Rossbach entered the injured osteo-

path’s room in the hospital which is operated by his family,

in an effort to question him about the events leading to his

wife’s death.

“William J. Corrigan, Cleveland criminal defense attor-

ney retained by Dr. Sheppard’s family, went in, too.

“A few minutes later, Rossbach stalked out and reported

to Coroner Gerber.

“Dr. Gerber angrily wrote out the subpena and handed

it to Rossbach. ‘Serve it forthwith,’ he commanded.

“Rossbach went back into the room to attempt to resume

the interrogation.

“The dramatic development came immediately after As-

sistant County Prosecutor John J. Mahon took control of

the murder investigation and issued an abrupt ultimatum:

“Dr. Sheppard must come downtown to the prosecutor’s

office ‘voluntarily to make a statement concerning the

crime.’

“If the osteopath refuses, Mahon said, a coroner’s in-

quest will be convened at the Morgue immediately, and Dr.

Sheppard will be subpenaed and compelled to testify.

10a

Opinion of the District Court

“.. These developments came as Dr. Stephen Sheppard

brother-in-law of the clain [sic] clubwoman, told reporters

that his brother was eager and anxious to aid the investiga-

tion and was now physically able to withstand questioning.

“He added that William J. Corrigan, prominent Cleveland

criminal defense lawyer retained by the family, was ‘in

complete charge from now on.’

“eee

“*In my twenty-three vears of criminal prosecution, |

have never seen such flagrant stalling as in this case by the

family of Dr. Samuel Sheppard,’ Mahon said.

“eee 0

Cleveland Press, July 8, 1954, p. 1.

“DOCTOR RE-ENACTS STORY OF MURDER;

REJECTS LIE TEST”

“Doctor Samuel H. Sheppard declined to submit to a lie

detector test for questioning about the slaying of his attrac-

tive wife, it was disclosed today * * * .”

Cleveland News, July 9, 1954, p. 1.

“DOCTOR RE-ENACTS TRAGEDY”

“HE BARS LIE TEST FOR PRESENT”

“Flanked by two attorneys Dr. Samuel H. Sheppard to-

day re-enacted his version of the murder of his pretty

wife, Marilyn—and repeated it, detail by detail, word for

word, over and over again.

“Earlier he had refused for the second time to take a lie

detector test in ‘my present emotional state.’

“ee Rid

Cleveland Press, July 9, 1954, p. 1.

_——

Opinion of the District Court

lla

“TOO MUCH TIME LOST”

“Within memory no murder case in this part of the

country has prompted so much discussion or speculation as

that of Mrs. Sheppard.

“A good part of it centers quite naturally around the cir-

cumstances of the killing itself—in a quiet suburban setting

—and its attendant mysterious elements.

“A good part likewise centers around the protective ring

set up by members of the Sheppard family, which in some

respects has tended to add to rather subtract from the

speculation that has expanded the case to such vast pro-

portions.

“Also the apparent fumbling of investigative authorities

on both the municipal and county levels has added to the

intensity of interest—and has raised many additional ques-

tions.

“Any time a factor of special attention, or privilege, or

special protection is introduced into any case it is bound to

produce increased and critical attention.

“In the Sheppard murder case many of these factors are

present against the original background of mystery, and it

is therefore not unnatural that it occupies such intense and

critical notice around the whole community.

“But the principal problem is the fact, that, for whatever

reasons, the investigative authorities were slow in getting

started, fumbling when they did, awkward in breaking

through the protective barriers of the family, and far less

aggressive than they should have been in following out

clews, tracks, and evidence.

12a

Opinion of the District Court

“There is nothing that helps block a solution to a murder

more than a cold trail, and it is this, as much as anything,

that causes such wide critical appraisal of the Sheppard

case.

“Now that the investigative authorities appear finally to

have catalyzed themselves into action and broken through

some of the protective barriers, they ought to make up in

redoubled effort the time they have already lost.”

Cleveland Press, July 9, 1954, p. 14.

“QUIZ DOCTOR FOR 7 HOURS”

“eee

“Deputy Sheriff Carl Rossbach renewed his demand that

the 30-year old osteopath submit to a lie detector test.

“‘He doesn’t have to if he doesn’t want to,’ Rossbach

said, ‘but I intend to keep on asking until he agrees.’

“@eer

Cleveland Press, July 10, 1954, p. 1.

“DOCTOR CALLS SECOND LIE TEST

REFUSAL FINAL’

“eee

“Dr. Samuel H. Sheppard again late yesterday refused

to take a lie detector test in the investigation of the brutal

murder of his pretty wife, Marilyn.

“Assistant County Prosecutor Thomas J. Parrino told

reporters at the end of a nine-hour questioning of Dr.

Sheppard: ‘I felt that he was now ruling it out completely.’

“eee

Cleveland Plain Dealer, July 11, 1954, p.1

13a

Opinion of the District Court

“PUSHES FOR SHEPPARD LIE TEST”

“DOCTOR IS WELL ENOUGH NOW,

GERBER SAYS”

“Still on the trail of the elusive motive for the murder

of Mrs. Marilyn Sheppard 10 days ago, investigators

today concentrated on a possible ‘other woman’ angle.

“AT THE SAME TIME, CORONER SAMUEL R. GER-

BER AGAIN URGED THE SLAIN WOMAN'S HUS-

BAND, DR. SAMUEL H. SHEPPARD, BAY VILLAGE

OSTEOPATH, TO SUBMIT TO A LIE DETECTOR

TEST.

“Tf Dr. Sheppard has recovered sufficiently to go back to

work at the Bay View Hospital he is well enough to take

a lie detector test,’ Dr. Gerber said.

“eeen

Cleveland News, July 13, 1954, p. 1.

“PAINESVILLE WOMAN’S STORY OPENS NEW

SHEPPARD QUIZ”

“SAYS DOCTOR'S WIFE WANTED

TO GET DIVORCE”

“A Painesville woman late today sent police off at a new

tangent in their search for the mysterious slayer of Mrs.

Marilyn Sheppard.

“THE NEW WITNESS IN THE MURDER CASE WAS

MRS. JESSIE DILL, 28, MOTHER OF TWO CHIL-

DREN. SHE WAS QUESTIONED IN THE PAINES-

VILLE POLICE STATION FOR TWO HOURS BY

BAY VILLAGE POLICE.

—ay

14a

Opinion of the District Court

“Mrs. Dill told reporters she had met a woman she is

positive was Marilyn Sheppard on the beach at Fairport

Harbor Monday, June 14.

“‘She seemed to be unhappy and asked me where my

husband was,’ Mrs. Dill said. ‘I told her I was divorced and

she said “that’s what I ought to do.” She said she had

attempted to divorce her husband in California four years

ago but his relatives had talked her out of it.’

“Mrs. Dill gave police and reporters the name of a man

mentioned by the woman she identified as Mrs. Sheppard.

The man had not previously entered the murder investiga-

tion.

“Mrs. Dill said the women [sic] she identified as Mrs.

Sheppard told her she was to have a baby, and she was

afraid if she divorced her hasband her 7-year-old son, Chip,

would be taken away from her.

“ee Psd

Cleveland News, July 15, 1954, p. 1.

“THE FINGER OF SUSPICION”

“The worst thing about the tragic mishandling of the

Sheppard murder investigation is the resulting suspicion.

“Why was it mishandled, people ask.

“You can’t blame them.

“In this community generally, murder investigations are

conducted with intelligence, efficiency and impartiality.

“The record is good.

“The detectives on the Homicide Squad in the Cleveland

—

15a

Opinion of the District Court

Police Department, for instance, know their job. They have

a national reputation.

“Same with the coroner.

“Thanks to his close co-operation with Western Reserve

University, and thanks to the voters who authorized the

best equipment and facilities, the county has top standing

in the relatively new fie.d of scientific crime investigation.

“And the sheriff’s office and the prosecutor’s office both

have good reputations for integrity and determination in

solving crimes.

“What happened, then?

“Two things stood in the way of the usual complete and

unfettered investigation that the citizens of Greater Cleve-

land have come to expect as the natural course of events.

“ONE was the hostility of Bay Village officials to any

‘outsiders’ in this case.

“They rebuffed the usual assistance immediately offered

by Cleveland police experts in solving murders.

“SECOND was the unusual protection set up around the

husband of the victim, the sole witness, according to later

reports, who could start the investigation on the right

track.

“The protection was twofold. It came from his family

and it came from his lawyer. It was unusual; to say the

least.

“And then, worst of all, no law enforcement official, Bay

or county, took any leadership in the face of these unusual

circumstances.

“No one.

“The result of all this fumbling and delay, of course, was

—

16a

Opinion of the District Court

to start gossip, to launch rumors, to spread suspicion thick

as glue.

“It was bad for everybody. Everybody, that is, except the

murderer.

“What can be done, now?

“It doesn’t make much difference who runs the show.

The important thing is that justice is done.

“First logical step would be a meeting of all the law en-

forcement agencies involved.

“Let them select a leader, a single responsible boss for this

particular case.

“Let him serve notice that protection, special favors and

fancy ultimatums by lawyers are out from here on.

“Maybe it’s too late to start again.

“BUT EVERY FURTHER MOMENT OF FUMBLING

IS HELPING A MURDERER ESCAPE.”

Cleveland Press, July 16, 1954, p. 12.

“SHEPPARD SET FOR NEW QUIZ”

“GETTING AWAY WITH MURDER”

“AN EDITORIAL”

“What’s the matter with the law enforcement authorities

of Cuyahoga County?

“Have they lost their sense of reasont—or at least in-

excusably set aside the realization of what they are hired

to do, and for whom they work?

“Tf ever a murder case was studded with fumbling, halt-

ing, stupid, uncooperative bungling-politeness to people

whose place in this situation completely justified vigorous

—

17a

Opinio». of the District Court

searching, prompt and effective police work—the Shep-

pard case has them all.

“Was the murder of Mrs. Sheppard a polite matter?

“Did the killer make a dutiful bow to the authorities and

then proceed brutally to destroy the young child-bearing

wife?

“Why all of this sham, hypocrisy, politeness, criss-cross-

ing of pomp and protocol in this case?

“Who is trying to deceive whom?

“From the very beginning of this case—from the first

hour that the murder became known to the authorities by a

telephone call from the husband to the town mayor—from

that moment on and including this, the case has been one of

the worst in local crime history.

“Of course the trail is cold. Of course the clews have

been virtually erased by the killer. Of course the whole

‘thing is botched up so badly that head or tail cannot be

made of it.

“In the background of this case are friendships, rela-

tionships, hired lawyers, a husband who ought to have been

subjected instantly to the same third-degree to which any

other person under similar circumstances is subjected, and

a whole string of special and bewildering extra-privileged

courtesies that should never be extended by authorities in-

vestigating a murder—the most serious, and sickening crime

of all.

“The spectacle of a whole community watching a batch

of law enforcement officials fumbling around, stumbling

over one another, bowing and scraping in the presence of

people they ought to be dealing with just as firmly as any

18a

Opinion of the District Court

other persons in any other crime—that spectacle is not

only becoming a stench but a serious threat to the dignity of

law enforcement itself.

“Coroner Sam Gerber was never more right than when

yesterday he said that the killer must be laughing secretly

at the whole spectacle—the spectacle of a community of a

million and a half people brought to indignant frustration

by Mrs. Sheppard’s killer in that white house out in Bay

Village.

“Why shouldn’t he chuckle? Why shouldn’t he cover up,

shut up, conceal himself behind the circle of protecting

people?

“What's the matter with us in Cuyahoga County? Who

are we afraid off Why do we have to kow-tow to a set of

circumstances and people where a murder has been com-

mitted?

“It’s time that somebody smashed into this situation and

tore aside this restraining curtain of sham, politeness and

hypocrisy and went at the business of solving a murder—

and quit this nonsense of artificial politeness that has not

been extended to any other murder case in generations.”

Cleveland Press, July 20, 1954, p. 1.

“ISN'T THIS MURDER WORTH AN INQUEST?”

And in a later edition, the same editorial was headlined:

“WHY NO INQUEST? DO IT NOW, DR. GERBEN”

“AN EDITORIAL”

—

19a

Opinion of the District Court

“Why hasn’t County Coroner Sam Gerber called an in-

quest into the Sheppard murder case?

“What restrains him?

“Is the Sheppard murder case any different from the

countless other murder mysteries where the coroner has

turned to this traditional method of investigation?

“An inquest empowers use of*the subpena.

“Tt puts witnesses under oath.

“It makes possible the examination of every possible wit-

ness, suspect, relative, records and papers available any-

where.

“It puts the investigation itself into the record.

“And—what’s most important of all—it sometimes solves

crimes.

“What good reason is there now for Dr. Gerber to delay

any longer the use of the inquest?

“The murder of Marilyn Sheppard is a baffling crime.

“Thus far it appears to have stumped everybody.

“It may never be solved.

“But, this community can never have a clear conscience

until every possible method is applied to its solution.

“What, Coroner Gerber, is the answer to the question—

“Why don’t you call an inquest into this murder?”

Cleveland Press, July 21, 1954, p. 1.

“TIME TO BRING BAY SLAYING INTO OPEN”

“Too many days have passed without positive results in

the several investigations of the Bay Village hack-slaying.

Undoubtedly the suburb’s police officials feel they have con-

ducted the best possible inquiry; county officials and Coro-

ner Samuel R. Gerber’s office also undoubtedly feel that

20a

Opinion of the District Court

they have acted effectively. But there’s been no sign at all

of breaking the stalemate over the brutal slaying of Mrs.

Marilyn Sheppard.

“We are forced to take note that Dr. Samuel Sheppard,

husband of the victim has rejected suggestions of both lie

detector and truth serum tests, and has submitted to ques-

tioning only when his family and his lawyer have agreed

he might.

“Before charges and counter-charges, fights among offi-

cials and jealousies smother all efficiency, wouldn’t it be

wise to bring the whole matter out into the open, with

subpenaing and examination of witnesses under oath, for

example, at the county’s crime laboratory at Western Re-

serve University? It’s time all groups get together as one

to find, or attempt to find the solution to this baffling crime.”

Cleveland News, July 21, 1954, p. 1.

“GET THAT KILLER”

“Tt is high time that strenuous action be taken in the

Sheppard murder case.

“T),is newspaper fails to see how bickering among those

who have been investigating the 18-day-old mystery can

aid in the final aim—to find the murderer, whoever he may

be.

“County Coroner Samuel R. Gerber, though he has failed

to produce the person who brutally murdered Mrs. Marilyn

Sheppard in the bedroom of her Bay Village home, has

worked long and hard, and deserves the appreciation of the

whole community.

“But it is obvious that Dr. Gerber needs help. The Cleve-

land police department is equipped to give it. Its crime

—

21a

Opinion of the District Court

laboratories and investigators are among the best in the

business. It has no Bay Village friendships which might

prove embarrassing.

“True, the case is cold as ice, There has, in our opinion,

been a noticeable lack of cooperation on the part of the dead

woman’s husband, Dr. Samuel M. [sic] Sheppard, who has

refused to take a lie detector test, and who yesterday re-

jected proposals that he submit to a ‘truth serum’ test.

“He had already been subjected to interrogation, he said;

he could not face further interrogation because he is still

emotionally upset, and he was reluctant to put himself in a

position where he might involuntarily incriminate innocent

people.

“The, last noble sentiment would, we feel, have been far

more noble if Dr. Sheppard had said:

“‘T will be happy to do anything within my power to

bring my wife’s murderer to justice. If a lie detector test

would help, by all means bring it on. If a “truth serum” test

would convince you that I have told police all I know in an

honest effort to apprehend the murderer, I am at your serv-

ice, gentlemen.’

“Just as it is easy to ‘second-guess’ a ball game, it is

easy to second-guess a murder investigation.

“Tt is clear, now, that, because of the social prominence

of the Sheppard family in the community, and friendships

between the principals in the case and the law enforcement

bodies of Bay Village, kid gloves were used throughout all

preliminary examinations.

“Possibly the ‘bushy-haired man’ would have been appre-

hended long before this if the crime had been investigated

with the vigor it deserved; perhaps some other answer

22a

Opinion of the District Court

might have been found to solve one of the most brutal mur-

ders in the history of Greater Cleveland.

“It is gratifying that the Cleveland police department

has accepted the Bay Village Council’s invitation to step

into the mystery, even at this late date, after once dropping

out of the case for some unexplained reason. Competent

detectives may yet be able to muster enough evidence to

produce the killer.

“Finding the killer should be of the greatest satisfaction

to Greater Cleveland, to Bay Village, and to Dr. Samuel

Sheppard.”

Cleveland Plain Dealer, July 22, 1954, p. 1.

“SLAIN WIFE REVEALED DATES OF DOCTOR,

TALK OF DIVORCE”

“@ee8

“The audience of more than 200, mostly Bay Village

housewives, applauded when William Corrigan, Dr. Sam’s

attorney, was forcibly ejected from the hearing after

insisting vigorously on his right to insert remarks in the

record.

“Coroner Samuel R. Gerber, who ordered Corrigan’s ex-

pulsion, was hugged, kissed and cheered by the spectators

after he recessed the three-day hearing to be reconvened

later at the County Morgue * * *.”

“een”

Cleveland Press, July 26, 1954, p. 1.

23a

Opinion of the District Court

“CORRIGAN EJECTED AMID CHEERS”

“MOVE FOLLOWS RUNNING CLASH

WITH GERBER”

“INQUEST IS RECESSED; OUSTED LAWYER VOWS

TO SUE OVER INCIDENT”

“Spectators cheered wildly yesterday as William J. Cor-

rigan, criminal lawyer representing Dr. Samuel H. Shep-

pard, was half dragged from the room in the closing mo-

ments of the Marilyn Sheppard murder inquest in Bay

Village.

“As the tumult subsided in the Normandy School audi-

torium-gymnasium, Coroner Samuel R. Gerber indefinitely

recessed the inquiry into the brutal hack-murder of Dr.

Sheppard’s 31-year-old wife before dawn July 4.

“eee 99

Cleveland Plain Dealer, July 27, 1954, p. 1.

“WHY DON’T POLICE QUIZ TOP SUSPECT?”

“AN EDITORIAL”

“You can bet your last dollar the Sheppard murder

would be cleaned up long ago if it had involved ‘average

people.’

“They'd have hauled in all the suspects to Police Head-

quarters.

“They'd have grilled them in the accepted, straight-out

way of doing police business.

“They wouldn’t have waited so much as one hour to

bring the chief suspect in.

“Much less days.

24a

Opinion of the District Court

“Much less weeks.

“Why all this fancy, high-level bowing and scraping, and

super-cautious monkey business?

“Sure it happened in suburban Bay Village rather than

in an ‘ordinary’ neighborhood.

“So what?

“What difference should that make?

“When they called the Cleveland police in everybody

thought:

“<‘This is it. Now they'll get some place.’

“Now we’d have vigorous, experienced, expert, big-time

action.

“They’d get it solved in a hurry.

“They’d have Sam Sheppard brought in, grill him at

Police Headquarters, like the chief suspect in any murder

case.

“But they didn’t.

“And they haven’t.

“In fairness, they’ve made some progress.

“But they haven’t called in Sam Sheppard.

“Now proved under oath to be a liar, still free to go

about his business, shielded by his family, protected by a

smart lawyer who has made monkeys of the police and au-

thorities, carrying a gun part of the time, left free to do

whatever he pleases 2s he pleases, Sam Sheppard still hasn’t

been taken to Headquarters.

“What’s wrong in this whole mess that is making this

community a national laughing stock?

“Who’s holding back—and why?

—

25a

Opinion of the District Court

“What’s the basic difference between murder in an ‘ordi-

nary’ neighborhood and one in a Lake Rd. house in subur-

ban Bay Village?

“Who is afraid of whom?

“It’s just about time that somebody began producing

the answers—

“And producing Sam Sheppard at Police Headquarters.”

Cleveland Press, July 28, 1954, p. 1.

26a

Opinion of the District Court

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28a

Opinion of the District Court

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“I Will Do Everything in My Power to Help Solve This Terrible Murder.”

—Dr. Sam Sheppard

30a

Opinion of the District Court

“WHY ISN’T SAM SHEPPARD IN JAIL?”

And in a later edition the headlines were:

“QUIT STALLING—BRING HIIM IN”

“AN EDITORIAL”

“Maybe somebody in this town can remember a parallel

for it. The Press can’t.

“And not even the oldest police veterans can, either.

“Everybody’s agreed that Sam Sheppard is the most un-

usual murder suspect ever seen around these parts.

“Except for some superficial questioning during Coroner

Sam Gerber’s inquest he has been scot-free of any official

grilling into the circumstances of his wife’s murder.

“From the morning of July 4, when he reported his wife’s

killing, to this moment, 26 days later, Sam Sheppard has

not set foot in a police station.

“He has been surrounded by an iron curtain of protec.

tion that makes Malenkov’s Russian concealment ama-

teurish.

“His family, his Bay Village friends—which include its

officials—his lawyers, his hospital staff, have combined to

make law enforcement in this county look silly.

“The longer they can stall bringing Sam Sheppard to the

police station the surer it is he’ll never get there.

“The longer they can string this whole affair out the

surer it is that the public’s attention sooner or later will

be diverted to something else, and then the heat will be off,

the public interest gone, and the goose will hang high.

“This man is a suspect in his wife’s murder. Nobody yet

has found a solitary trace of the presence of anybody else in

3la

Opinion of the District Court

his Lake Rd. house the night or morning his wife was

brutally beaten to death in her bedroom.

“And yet no murder suspect in the history of this county

has been treated so tenderly, with such infinite solicitude

for his emotions, with such fear of upsetting the youag

man.

“Gentlemen of Bay Village, Cuyahoga County, and Cleve-

land, charged jointly with law enforcement—

“THIS IS MURDER. THIS IS NO PARLOR GAME.

THIS IS NO TIME TO PERMIT ANYBODY—NO MAT-

TER WHO HE IS—TO OUT-WIT, STALL, FAKE, OR

IMPROVISE DEVICES TO KEEP AWAY FROM THE

POLICE OR FROM THE QUESTIONING ANYBODY IN

HIS RIGHT MIND KNOWS A MURDER SUSPECT

SHOULD BE SUBJECTED TO—AT A POLICE STA-

TION.”

“The officials throw up their hands in horror at the

thought of bringing Sam Sheppard to a police station for

grilling. Why? Why is he any different than anybody else

in any other murder case?

“Why should the police officials be afraid of Bill Corri-

gan? Or anybody else, for that matter, when they are at

their sworn business of solving a murder.

“Certainly Corrigan will act to protect Sam Sheppard’s

rights. He should.

“BUT THE PEOPLE OF CUYAHOGA COUNTY EX-

PECT YOU, THE LAW ENFORCEMENT OFFICLALS,

TO PROTECT THE PEOPLE’S RIGHTS.

“A mrrder has been committed. You know who the chief

suspect is.

“You have the obligation to question him—question him

thoroughly and searchingly—from beginning to end, and

32a

Opinion of the District Court

not at his hospital, not at his home, not in some secluded

spot out in the country.

“But at Police Headquarters—just as you do every other

person suspected in a murder case.

“What the people of Cuyahoga County cannot understand,

and The Press cannot understand, is why you are showing

Sam Sheppard so much more consideration as a murder

suspect than any other person who has ever before been

suspected in a murder case.

“Why?”

Cleveland Press, July 30, 1954, p. 1.

“BUT WHO WILL SPEAK FOR MARILYN?”

“It’s perfect, you think at first, as you look over the

setting for the Big Trial.

“The courtroom is just the size to give a feeling of cozi-

ness and to put the actors close enough to each other so

that in moments of stress the antagonists can stand jaw to

jaw and in moments of relaxation can exchange soft words

of camaraderie.

“Modern enough for this ‘See-Hear’ age, with the micro-

phone, the loud speakers on the walls, and the blazing lights

for the TV cameras before and after court sessions.

“Yet somberly dignified enough to carry the authentic

decor of the traditional court of justice.

“Almost inadequate, old-fashioned hanging light fixtures.

Dark furnitture. [sic]. A high bench for his honor, the

judge. So high that if he slouches a bit just his head is

visible.

“A bit of plaster has fallen from the ceiling over the

clerk’s desk. The unrepaired spot gives a touch of the

dignity of age.

——

33a

Opinion of the District Court

“And on the floor at the end of the trial table—a cuspidor.

“Ah, you think, only a master arranger would have re-

membered that.

“‘The cuspidor. Put it here.’

“Perfect, you think at first, a masterpiece of setting the

stage for the dramatic action of the Big Trial.

“Then it hits you. No, there’s something missing.

“What?

“Can what seems to be missing be found in the cast of

characters.

“Ah, the cast. Superb, you think at first.

“And complete. Not a character missing.

“And so real, you think. Just like you would expect to

see. Why if you didn’t know these were people and this

was a real setting you would think you were watching a

drama on television or a mystery play at a theater.

“His honor, the judge. A quaint Welsh accent. Quick,

mobile features that can pass so rapidly through sternness,

annoyance, patience and charming friendliness.

“And the chief counsel for the defense. Granite faced,

shaggy haired. Now disdainful, now quizzical, now disbe-

lieving, now coaxing, now threatening, now bored.

“These provide the perfect background for the most per-

fect character of all—the accused. Was there ever move

perfect typing? Was there ever a more perfect face for the

enigma that is the Big Trial?

“Study that face as long as you want. Never will you get

from it a hint of what might be the answer when the curtain

rings down on this setting and on these characters. Is he the

one? Did he do it?

os ——

34a

Opinion of the District Court

“Plus of course, the other characters. The accused’s two

brothers. Prosperous, poised. His two sisters-in-law,

Smart, chic, well-groomed. His elderly father. Courtly, re-

served. A perfect type for the patriarch of a staunch clan.

“Yes, you think. They wouldn’t be more true-to-life if

this Big Trial were a television drama.

“Then it hits you again. No there’s something—and some-

one missing.

“What is it? Who is it. Who’s still off stage? Waiting

perhaps for a cue to come on.

“In the hallway outside the courtroom you stop to talk

to Detective Chief James McArthur. He’s an old timer at

Big Trials. So you ask him. Isn’t there someone, something

missing?

“ ‘Sure,’ says the detective chief. “There always is. I'll

tell you.

“ ‘Tt’s the other side, the representatives of what in this

case will be officially known as the corpus delicti, in other

words, the body of the crime, in still other words—Marilyn

Reese Sheppard.

“There is no grieving mother—she died when Marilyn

was very young.

“‘There’s no revenge-seeking brother nor sorrowing

sister. Marilyn was an only child.

“ ‘Her father is not here. Why he isn’t, is his own per-

sonal business.’

“What then, you wonder, will be the other side.

“Tt will be there, Inspector McArthur reassures. He opens

a thick brief case he carries daily to the courtroom.

“ ‘Here’ he says, ‘are the statements and resumes of testi-

mony that will be given by state’s witnesses. Here are the

35a

Opinion of the District Court

theories and details of the evidence found by dozens of detec-

tives in weeks of work.

“ ‘Here is the complete story of Marilyn Reese Sheppard.

How she lived, how, we think, she died. Her story will come

into this courtroom through our witnesses. Here is how it

starts: Marilyn Sheppard, nee Reese, age 30, height 5 feet,

7 inches, weight 125 pounds, brown hair, hazel eyes. On the

morning of July 4 she was murdered in her bedroom. ...’

“Then you realize how what and who is missing from the

perfect setting will be supplied.

“How in the Big Case justice will be done.

“Justice to Sam Sheppard.

“And to Marilyn Sheppard.”

Cleveland Press, October 23, 1954, p. 1.

[This article is included with “Newspaper publicity before

trial” although it is recognized that the trial had commenced

before it was published ; however, the jury had not yet been

sworn and the court believes this article to be relevant to the

question being considered. ]

ADDITIONAL NEWSPAPER HEADLINES: Pab-

lished before trial, most of which appeared on front pages.

“QUIT WEARING GUN, DOCTOR TOLD”

“DR. SHEPPARD BACKS AWAY FROM ‘CRIME

DOCTOR’ TALK”

“SAYS MRS. SHEPPARD HAD PLANNED DIVORCE”

“SHEPPARD DENIES TRYST WITH WOMAN

TECHNICIAN”

36a

Opinion of the District Court

“SHEPPARD DENIES AFFAIR, SOBS ON WITNESS

STAND”

“KERR URGES ARREST OF DOCTOR; POLICE FIND

HOLES IN STORY”

“SLAIN WIFE TALKED OF ‘OTHER GIRL’ DOCTOR'S

MOTHER SAYS”

“GIRL ADMITS AFFAIR, FLIES HERE TO TESTIFY”

“DOCTOR LIES, SUSAN SAYS; TELLS OF GIFTS”

“DR. SAM MADE LOVE BUT DIDN'T TALK ABOUT

DIVORCE, SUSAN SAYS”

“STORY OF TECHNICIAN DIFFERENT FROM

SHEPPARD'S AT INQUEST”

“DR. SAM FACES QUIZ AT JAIL ON MARILYN'S

‘FEAR OF HIM.’”

“15 DETECTIVES GRILL DR. SHEPPARD IN JAIL”

“POLICE ASSERT COUPLE HAD VIOLENT ROWS”

“SCIENCE CUTS THROUGH COVER-UP”

“POLICE END QUIZ AS DOCTOR WINS NO-TALK

STRIKE”

“DOCTOR BALKS, QUIZ HALTED”

“5 ‘OTHER WOMEN’ LINKED TO DOCTOR”

“SIXTH WOMAN IS LINKED IN DOCTOR QUIZ”

“(GRAND] JURY WEIGHS EVIDENCE 40 MINUTES

AND ACTS”

“THE SHEPPARD STORY: MURDER MYSTERY

FULL OF CONTRADICTIONS”

37a

Opinion of the District Court

The Court does not deem it necessary to analyze in detail

the above quoted newspaper editorials, articles and head-

lines or the remainder of the five volumes of clippings sub-

mitted into evidence. Suffice it to say that each of the three

Cleveland newspapers repeatedly printed material which

strongly suggested and, in fact, urged petitioner’s guilt.

Indieative of the suggestion of guilt was the repeated and

extensive coverage given to petitioner’s refusal to submit

to a lie detector test or to receive an injection of truth

serum. Headlines, in addition to those already referred to

but still only a sampling of the total, stated:

“DOCTOR VARIES STORY, BARS Iliad TEST NOW,”

“DR. SHEPPARD REFUSES TO TAKE TRUTH

SERUM IN MURDER PROBE,”

“DOCTOR BARS TRUTH TEST,” and

“DR. SHEPPARD BALKS AT TRUTH SERUM

TEST.”

And particular mention must be made of the editorial in

the Cleveland Press titled “BUT WHO WILL SPEAK

FOR MARILYN” which was printed just prior to the

swearing in of the jury, for it was indeed one of the most

prejudicial. Ignoring the fact that it was a cheap, sobsister

editorial, it literally screamed for petitioner’s conviction.

When the Supreme Court of Ohio considered the question

of whether the trial court should have granted a change of

venue, Ohio v. Sheppard, 165 Ohio St., 293, 294-297 (1956),

the majority opinion of the Court stated:

“*** Was the atmosphere ix Cleveland as a result of the

widespread publicity attendant upon this trial such as to

require the trial court to grant a change of venue?

38a

Opinion of the District Court

“eee

“The law does not require this court to be so naive as to

refuse to recognize the great amount of publicity accorded

this case from the time of the discovery of the crime up

to the present time. Every development has been given

the ‘full treatment’ by the press, radio and television. The

interest in each phase of the case has not been confined to

the Cleveland area or to Ohio. Syndicated columns and

news agency reports have made the case almost as well

known in every community of the nation as it is in Cleve-

land.

“It should be borne in mind, however, that the legal ques-

tion presented to us is whether the defendant was accorded

a fair constitutional trial by an impartial jury which could

decide the issues of fact solely upon the consideration of

the evidence in the light of the law given it by the court.

That question is not to be decided on the volume of the

publicity or the tendency such publicity may have had in

influencing the public mind generally as to the defendant’s

guilt or innocence.

“ee 8

“We believe the trial court was justified in those rulings

(the overruling of each motion for change of venue). In

Townsend v. State, 17 C. C. (N. 8.), 380, 25 C. D., 408, af-

firmed 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 defendant of those

called for examination for jurors are based on newspaper

articles and that the opinions so formed are not fixed but

—

39a

Opinion of the District Court

would yield readily to evidence, it is not error to overrule

an application for a change of venue.’

“* 28

“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 prospective jurors called pursuant to this venire

only 14 were excused because they had formed a firm opin-

ion as to the guilt or innocence of the defendant. A full

panel was accepted before this venire was exhausted, and

defendant 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 can not say that the denial of a change of venue

by the trial judge constituted an abuse of discretion.”

The general rule that a change of venue lies within the

sound discretion of the trial judge is well settled. The

Courts have also agreed that our jury system is based upon

the belief of jurors and when jurors testify that they can

discount influences of external factors and meet the stand-

ard imposed by the Fourteenth Amendment, that assump-

tion is not lightly to be disregarded, Rideau v. Louisiana,

373 U. S. 723 (1963). However, and this is a factor which

the Supreme Court of Ohio failed to consider, when the

circumstances are unusually compelling, the assurances of

jurors may be disregarded, though the burden of showing

essential unfairness is upon the person who claims such

injustice and seeks to have the results set aside, Rideau v.

_ ee

40a

Opinion of the District Court

Louisiana, supra, and Adams v. United States ex rel,

McCann, 317 U.S., 269, 281 (1942).

How to protect an accused from the prejudicial effect of

newspaper publicity is indeed a serious and difficult prob-

lem. The United States Supreme Court has jealously

guarded the right of an accused to a fair trial by a panel

of impartial jurors and when, after a conviction, it is de-

termined that newspaper publicity so prejudiced the minds

of the prospective jurors as to preclude a fair trial, the

Court has ordered a new trial. That Court has, of course,

recognized that jurors do not live in a vacuum and certain

eases are by their very nature apt to generate publicity and

jurors will probably have formed some impression or opin-

ion as to the merits of the case. This problem was dis-

cussed by the Court in /rvin v. Dowd, 366 U. S., 717 (1961).

In that case, a habeas corpus proceeding was brought to

test the validity of petitioner’s conviction of murder and

sentence of death in the Circuit Court of Gibson County,

Indiana. Petitioner contended that his conviction had been

obtained in violation of the Fourteenth Amendment in that

he did not receive a fair trial. Mr. Justice Clark, in de-

livering the opinion of the Court stated at pages 722-723:

“«* * * Tn essence, the right to jury trial guarantees to the

criminally accused a fair trial by a panel of impartial, ‘in-

different’ jurors. The failure to accord an accused a fair

hearing violates even the minimal standards of due

process * * *.

“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 communica-

tion, an important case can be expected to arouse the in-

4la

Opinion of the District Court

terest of the public in the vicinity, and scarcely any of

those best qualified to serve as jurors 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 imparti-

ality 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 ** ig

The Court, after noting that the jury panel consisted of

430 persons of which the trial judge excused 268 on chal-

lenges for cause as having fixed opinions as to the guilt of

the defendant, stated at page 727:

“** * An examination of the 2,783-page voir dire record

shows that * * * almost 90% of those examined on the point

** * entertained some opinion as to guilt—ranging in in-

tensity from mere suspicion to absolute certainty * * * .”

The Court then concluded:

“Here the ‘pattern of deep and bitter prejudice’ shown to

be present throughout the community * * * was clearly re-

flected in the sum total of the voir dire examination of a

majority of the jurors finally placed in the jury box * * * .”

And Mr. Justice Frankfurter in his concurring opinion,

at pages 729-730, observed:

“* * * One of the rightful boasts of Western civilization

is that the State has the burden of establishing guilt solely

on the basis of evidence produced in court and under cir-

cumstances assuring an accused all the safeguards of a

42a

Opinion of the District Court

fair procedure. These rudimentary conditions for deter-

mining guilt are inevitably wanting if the jury which is to

sit in judgment on a fellow human being comes to its task

with its mind ineradicably poisoned against him. How can

fallible men and women reach a disinterested verdict based

exclusively on what they heard in court when, before they

entered the jury box, their minds were saturated by press

and radio for months preceding by matter designed to

establish the guilt of the accused. A conviction so secured

obviously constitutes a denial of due process of law in its

most rudimentary conception.”

This Court, though it recognizes that in the instant case

only 14 of the 72 prospective jurors examined stated that

they had prejudged the guilt or innocence of the accused,

has no compunction in finding that the publicity was so

prejudicial to petitioner that the assurances of the jurors

must be disregarded for in the words of Mr. Justice Frank-

furter, “before they [the jurors] entered the jury box, their

minds were saturated by press and radio * * * designed to

establish the guilt of the accused.”

In a case decided after Irvin v. Dowd, supra, the Supreme

Court held it was a denial of due process of law to refuse the

request for a change of venue after the people of the com-

munity had been exposed repeatedly and in depth to the

spectacle of the defendant personally confessing in detail

to the crimes with which he was later charged, Rideau v.

Louisiana, supra. In that case, the Court did not examine

the transcript of the voir dire in reaching its determination

as to prejudice. The Court said at page 727:

“* * * we do not hesitate to hold, without pausing to ex-

amine a particularized transcript of the voir dire examina-

tion of the members of the jury, that due process of law in

43a

Opinion of the District Court

this case required a trial before a jury drawn from a com-

munity of people who had not seen or heard Rideau’s tele-

vised ‘interview’ * * * .”

The instant case is analogous to Rideau in that regard-

less of what might have been said in the voir dire examina-

tion, the community was so prejudiced against petitioner

that a fair trial could not be had. See, as one overt exampl;

of the prejudice against petitioner, the newspaper repo~'ts

that the “spectators cheered wildly” and “hugged and

kissed” the coroner when he ordered petitioner’s counsel

ejected from the inquest, supra, at page 31.

As stated in Delaney v. United States, 199 F. (2d), 107,

112-113 (1 Cir., 1952) by Judge Magruder:

“* * * One cannot assume that the average juror is so

endowed with a sense of detachment, so clear in his intro-

spective perception of his own mental processes, that he

may confidently exclude even the unconscious influence of

his preconceptions as to probable guilt, engendered by a

pervasive pretrial publicity. This is particularly true in the

determination of issues involving the credibility of wit-

nesses.”

And as stated by Mr. Justice Jackson, concurring in

Krulewitch v. United States, 336 U. 8., 440, 453 (1949) :

“The naive assumption that prejudicial effects can be

overcome by instructions to the jury, * * * all practicing

lawyers know to be unmitigated fiction.”

This Court now holds that the prejudicial effect of the

newspaper publicity was so manifest that no jury could

have been seated at that particular time in Cleveland which

would have been fair and impartial regardless of their as-

vA;

44a

Opinion of the District Court

surances or the admonitions and instructions of the trial

judge. ,

Publicity during trial. From the day the trial began, the

Sheppard case dominated the Cleveland newspapers. It

would be impractical to quote extensively from the articles

which were published during trial; the Court will present

only one. It is indeed a glaring example of prejudicial re-

porting and appeared on page 1 of the Cleveland Press on

November 24. The headlines were:

“SAM CALLED A ‘JEKYLL-HYDE’ BY MARILYN,

COUSIN TO TESTIFY” :

The text of the article stated:

“Two days before her death, murdered Marilyn Reese

Sheppard told friends that her accused husband, Dr. Samuel

H. Sheppard, was ‘a Dr. Jekyll and Mr. Hyde.’

“The prosecution has a ‘bombshell witness’ on tap who

will testify to Dr. Sam’s display of fiery temper—counter-

ing the defense claim that the defen@ant is a gentle physician

with an even disposition.

“One of Mrs. Sheppard’s ‘Dr. Jekyll and Mr. Hyde’ state-

ments was made to Bay Village Mayor J. Spencer Houk as

recently as last June, The Press learned.

“Houk, according to his statement to the authorities, had

expressed surprise at Marilyn’s account of a display of

Sam’s anger.

“ ‘You don’t know that guy,’ he quoted the murder victim

as replying. ‘He’s a regular Dr. Jekyll and Mr. Hyde. ...’

“Mrs. Sheppard used the ‘Jekyll-Hyde’ expression fre-

quently in confidential conversations during the past sev-

eral years, friends and relatives have told the murder

investigators.

45a

Opinion of the District Court

“THE ‘BOMBSHELL WITNESS’ IS THOMAS WEI-

GLE, 26, OF 15897 NELAMERE RD., EAST CLEVE-

LAND, MARILYN’S FIRST COUSIN.

“Weigle and his wife, Marian, and son, Gordon visited

Sam and Marilyn Sheppard’s home at 28924 Lake Rd.,

Bay Village, a Sunday in March, 1952.

“The two women were in the kitchen, Weigle related,

while he and Dr. Sam were watching a western movie on

television. The Sheppards’ only son, Sam (Chip) Jr., then

five years old, was playing in the room.

“Chip, Weigle said, tapped his father’s arm—either play-

fully or accidentally.

““SAM’S FACE REDDENED, WEIGLE CON-

TINUED. *HE WHISKED THE BOY UP, TOSSED HIM

ACROSS HIS LEGS, AND BEGAN BEATING HIM ON

HIS BACK, LEGS AND BUTTOCKS.’

““AS HE STRUCK THE BOY REPEATEDLY, SAM

SAID: “DON’T YOU EVER HIT ME AGAIN ....

DON’T YOU EVER DO THAT AGAIN?”...’

“se 8 99

Thomas Weigle, or the “bombshell witness” as he was

characterized by the Cleveland Press, did not testify, as

that newspaper had said he would, that petitioner was a

“Jekyll-Hyde.” However, the damage to petitioner was

completed when the newspaper was circulated. As stated

by counsel for petitioner in his brief: “It is difficult to

imagine any characterization more damaging to a doctor

on trial for a monstrous murder.” The schizophrenic char-

acter in Robert Louis Stevenson’s novel was at times a

peaceable, respected doctor and at times a bloodthirsty

killer. The attempt to analogize petitioner and a schizo-

phrenic murderer is only one example of the type of slanted

46a

Opinion of the District Court

and prejudicial newspaper publicity which attended the

trial. Other examples are the following headlines:

“CALLS DR. SAM LOVE SLAYER, ASKS DEATH”

“MARILYN’S PICTURES STIR COURT”

“DEFENSE STRESSES ‘HOW’ NOT ‘WHO’ TO

MARILYN’S DEATH”

“DEFENSE AIMS TO SET WALL OF DOUBT AROUND

DR. SAM”

“DOCTOR SAM’S PROWLER STORY HIT”

“LAB MEN READY ATTACK ON SAM”

“DRENKHAN [A Patrolman] RIPS ‘PROWLER’ VIEW”

“STORY OF ILLICIT ROMANCE WILL CLIMAX

TRIAL”

“STATE SPRINGS 2 BLOOD CLEWS”

“HIT DEFENSE ‘BURGLARY’ PLEA; * * *”

“CORONER IS FIRM UNDER CORRIGAN FIRE”

“CORRIGAN STRUGGLES TO REVIVE ‘INTRUDER’

AS RECALLED BY SAM”

“TESTIFIES SAM CHANGED STORIES”

“DR. SAM’S SIX STORIES SPIN TANGLED SKEIN”

“ASSERTS STEVE COACHED DR. SAM”

“STATE HITS DR. SAM ON 17 POINTS”

“SHEPPARD DEFENSE AIMED AT CHRISTMAS

VERDICT”

“PARRINO RIPS DR. STEVE’S STORY OF SCENE ON

MURDER MORNING”

Coe a hee eee

47a

Opinion of the District Court

“TRIPS DR. STEVE ON NEW VERSION OF LOOK AT

BODY”

—524—

“TESTIMONY OF DR. STEVE SHOWS CHANGE IN

STORY”

“DR. STEVE ADMITS 2 ERRORS”

“DR. SAM FACES ATTACK ON LOVES”

“BARE-FACED LIAR KERR SAYS OF SAM” [Kerr did

not testify at the trial]

“DR. SAM ADMITS TWO MORE ROMANCES DURING

MARRIAGE”

“WITNESS TELLS OF ‘FLIRTATIONS’ IN STATE

QUIZ”

“DR. SAM QUIZZED ON OTHER WOMEN”

“STATE’S LAST WORD; ‘SAM FAKED BURGLARY

TO COVER UP MURDER’”

In addition to the prejudicial effect of the newspaper

publicity, petitioner also alleges error due to certain radio

publicity. During the trial, counsel for petitioner advised

the trial judge that a broadcaster, Robert Considine, an-

nounced over the radio a comparison between petitioner and

Alger Hiss. Counsel requested the judge to ask the jury

if they had heard the broadcast because of its prejudicial

effect. The judge refused and stated:

“THE COURT: * * * Well, I don’t know, we can’t stop

people, in any event, listening to it. It is a matter of free

speech, and the court can’t control everybody.

“MR. MAHON: [an assistant prosecutor] I think that

the court has instructed the jury that they are not to read

48a

Opinion of the District Court

about it or listen to the broadcasts. It was a general in-

struction that was given at the time the trial started.

“THE COURT: We are not going to harass the jury

every morning.

“MR. CORRIGAN: [petitioner’s chief trial counsel] I

can’t help it, Judge. If you don’t that’s all right with me.

I make my exception.

“THE COURT: It is getting to the point where if we do

it every morning, we are suspecting the jury. I have con-

fidence in this jury, and we must have confidence or the

jury system is of no value whatever to anybody.

“MR. CORRIGAN: The jury are human beings and this

situation around here is unprecedented in the history of

trials in the United States.”

Regarding unfavorable publicity during trial, the Court

of Appeals for the Sixth Circuit, in Krogmann v. United

States, 225 F. (2d), 220, 228 (1955), stated:

“Unfavorable publicity to a defendant given in news-

papers about a pending jury trial is not necessarily grounds

for setting aside a verdict, but under certain circumstances

may result in prejudice to a defendant so as to cause a

mistrial. Generally, an incorrect unfavorable report of the

evidence presented against a defendant on a material is-

sue, which comes to the attention of a juror or jurors dur-

ing the pendency of the trial raises a rebuttable presumption

that the rights of the defendant have been prejudiced, The

District Judge should ascertain if the report has come to

the attention of a juror and if so, take the necessary steps

to rebut such presumption, and if not convinced that the

presumption has been rebutted, declare a mistrial * * *.”

And in Marshall v. United States, 360 U. 8., 310 (1959),

the Supreme Court reversed a conviction in the Federal

49a

Opinion of the District Court

District Court where some of the jurors saw and read news-

paper articles which were prejudicial to defendant. The

Court said, at pages 312-313:

“The trial judge has a large discretion in ruling on the

issue of prejudice resulting from the reading by jurors of

news articles concerning the trial. * * * Generalizations

beyond that statement are not profitable, because each case

must turn on its special facts. We have here the exposure

of jurors to information of a character which the trial

judge ruled was so prejudicial it could not be directly of-

fered as evidence. The prejudice to the defendant is almost

certain to be as great when that evidence reaches the jury

through news accounts as when it is a part of the prosecu-

tion’s evidence. * * * It may indeed be greater for it is then

not tempered by protective procedures.”

It must be recalled that the jury in this case was not

sequestered until the cause was submitted to them after

the charge of the court. It is clear beyond doubt, because

of the sheer volume of publicity which attended the trial,

that the jury read and heard about the case through the

news media.’ In fact, the record shows, at page 5429 of the

Bill of Exceptions, that the trial judge asked if any juror

had heard a certain broadcast by Walter Winchell and two

jurors replied that they had.°

This Court holds there was such a plethora of prejudicial

material contained in the newspapers that no admonition or

* On this point, see infra, at pages 526 and 527.

*In that broadcast, it was reported that a woman, then under

arrest for robbery, had stated that “she was the mistress of Sam

Sheppard, and that he was responsible for the birth of a child.”

Each of the jurors who had heard the broadcast answered “No” to

the question : “Would that have any effect upon your judgment?”

50a

Opinion of the District Court

charge of the court could vitiate the effect of the publicity,

Further, the trial judge committed error when he failed to

question the jury regarding the Robert Considine broadcast.

It was incumbent upon the judge to take every precaution to

insure that iighly prejudicial material did not infect the

minds of the jury. Holmes v. United States, 284 F. (2d),

716 (4 Cir., 1960). It has even been held that where there

is highly prejudicial publicity, the judge should carefully

examine each juror out of the presence of the others to

determine the effect of the articles on those who had read

them and whether they had discussed the articles with

others, United States v. Accardo, 298 F. (2d), 133, 136 (7

Cir., 1962).

The Court also notes the manner in which the trial judge

allocated the courtroom to members of the news media. It

is one thing to accommodate the news media; it is quite dif-

ferent when a major portion of the courtroom is reserved

for it. Here a comparatively small courtroom was reserved

primarily for the news media and the trial became its show-

piece. The Supreme Court of Ohio characterized the atmo-

sphere surrounding the trial as “a ‘Roman holiday’ for the

new media.” Under such circumstances, the requisite atmo-

sphere for a fair trial could not, and in fact did not, exist.

Any one of the above mentioned factors, i.e., the insidious,

prejudicial newspaper reporting, the refusal of the trial

judge to question jurors regarding an alleged prejudicial

radio broadcast and the carnival atmosphere which con-

tinued throughout the trial, would be sufficient to compel

the conclusion that petitioner’s constitutional rights were

violated. But when they are cummulated, this Court cannot,

unless it were to stretch its imagination to a point of fan-

tasy, say the petitioner had a fair trial in view of the

publicity during trial.

—

5la

Opinion of the District Court

The Court cannot pass to the next claim cf error without

pausing to comment further on the manner in which the

three Cleveland newspapers reported the murder of Marilyn

Sheppard and the subsequent events. It is often difficult

to draw the line between propriety and impropriety in

newspaper reporting. Newspapers have the right and in-

deed an obligation to the community to advocate and to

criticize. But with respect to the Sheppard case, there can

he no doubt as to the impropriety in the manner in which

it was reported by the Cleveland newspapers. The in-

flammatory and prejudicial reporting did not subside when

the trial began; it continued throughout the trial. And

special note must be given to the attempt of the news-

papers to influence the jury. It was startling to find photo-

graphs of the entire jury and of individual jurors (at times

giving their home addresses) in no less than 40 issues of

the Cleveland newspapers. 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 assured that they would look for their photo-

graphs 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 photographs and sketches of him

in at least 46 separate issues. This was certainly an attempt

to bring him around to their way of thinking.

If ever there was a trial by newspaper, this is a perfect

example. And the most insidious violator was the Cleve-

land Press. For some reason that paper took upon itself

the role of accuser, judge and jury. The journalistic value

of its front page editorials, the screaming, slanted headlines

and the nonobjective reporting was nil, but they we~> cal-

culated to inflame and prejudice the public. Such a com-

52a

Opinion of the District Court

plete disregard for a sense of propriety results in a grave

injustice not only to the individual involved but to the

community in general. Public officials, the courts and the

jury are unable to perform their proper functions when the

news media run rampant, with no regard for their proper

rule. Numerous responsible newspapers and magazines

noted this abuse of freedom of the press and published edi-

torials* which were highly critical of the Cleveland news-

papers, especially the Cleveland Press.

Freedom of the press is truly oue of the great freedoms

which we cherish; but it cannot be permitted to overshadow

the rights of an individual to a fair trial. As stated by Mr.

Justice Jackson in his concurring opinion in Shepherd v.

Florida, 341 U. S., 50, 53 (1951):

“* * * Newspapers, in the enjoyment of their constitu-

tional rights, may not deprive accused persons of their

right to fair trial * * * .”

On this subject, an often quoted opinion is that of Mr.

Justice Frankfurter concurring in Pennekamp v. Florida,

328 U. S., 331, 354-356 (1945), wherein he stated:

“Without a free press there can be no free society. Free-

dom of the press, however, is not an end in itself but a

means to the end of a free society. The scope and nature

of the constitutional protection of freedom of speech must

be viewed in that light and in that light applied * * *.

“A free press is vital to a democratic society because its

freedom gives it power. Power in a democracy implies re-

sponsibility in its exercise. No institution in a democracy,

* These editorials are reproduced in the Appendix to the petition

for writ of certiorari and are part of the evidence in this case, see

supra, page 495.

53a

Opinion of the District Court

either governmental or private, can have absolute power.

Nor can the limits of power which enforce responsibility

be finally determined by the limited power itself. * * *

In plain English freedom carries with it responsibility even

for the press; freedom of the press is not a freedom from

responsibility for its exercise * * *.” [Footnotes omitted.]

By its actions in the Sheppard case, the Cleveland Press

showed no respect for its responsibilities. If ever a news-

paper did a disservice to its profession; if ever the cause

of freedom of the press was set back, this was it. The failure

of that newspaper and the two other Cleveland newspapers

to adhere to their responsibilities cannot be permitted to

deny petitioner his right to a fuir trial.

54a

Article in The Cleveland Press of July 21, 1954

(See opposite) &

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he Cleveland

The Newspaper That Serves Its Readers

Fig ie ale am aS is

CLEVELAND, MONDAY, JULY 26, 1954

ASKS DOCTOR

“flatly contradicts” several statements made by Dr.

Sheppard under oath at a ecoroner’s inquest which re-

sumed today at the Normandy School in Bay Village.

It was believed that Dr. Sheppard would be recalled

to the witness stand to be confronted with these con-

tradictions. 7

When Dr. Sheppard concluded his testimony Friday,

Coroner Samuel R. Gerber ordered him to “hold your-

self available at all times.”

Dr. Gerber said his inquest would be adjourned in-

definitely after today’s session, subject to being re-

convened at any time.

At the last minute, Dr. Gerber decided to excuse

Sam (Chip) Sheppard Jr., six-year-old son of the

murdered Marilyn, from testifying.

Chip was asleep next door to his parents’ bedroom

when his mother was bludgeoned to death July 4 in

their home at 28924 Lake Rd. He earlier told Deputy

Sheriff Carl Rossbach he hadn’t heard anything.

— ~~ i

eee - - on

he FMP EL OLE ONE LEONE

OVERSIZE PAGE-SEE NEXT FRAME

FOR REMAINDER OF PAGE

“The boy couldn’t add anythin

Gerber said.

Miss Susan Hayes, West Coas

Sam, gave an account at Los /

Prosecutor Thomas Parrino and

Robert Schottke which contradi:

pard’s witness stand statements.

Chief Story said a May Co. sald

to testify that Dr. Sam purchased

and a fishing rod at the downtov

some time prior to his wife’s mur

stand, Dr. Sam said he had no

purchase. He was not asked abo

“We are trying to determine \

fishing rod,” Story said.

According to Dr. Gerber, t

weapon with which Mrs. Sheppz

more savage blows was “very li

than a fishing rod.”

Story assigned sewer cleaning

. -

eveland Press

The Newspaper That Serves Its Readers

Home

38 Pages—7 Cents

Phone CHerry 1-1111

” several statements made by Dr.

oath at a eoroner’s inquest which re-

Normandy School in Bay Village.

that Dr. Sheppard would be recalled

to be confronted with these con-

concluded his testimony Friday,

R. Gerber ordered him to “hold your-

all times.”

his inquest would be adjourned in-

today’s session, subject to being re-

time.

ute, Dr. Gerber decided to excuse

Jr., six-year-old son of the

, from testifying.

next door to his parents’ bedroom

r was bludgeoned to death July 4 in

4 Lake Rd. He earlier told Deputy

ch he hadn’t heard anything.

ee mm

CLEVELAND, MONDAY, JULY 26, 1954

“The boy couldn’t add anything at this time,” Dr.

Gerber said.

Miss Susan Hayes, West Coast companion of Dr.

Sam, gave an account at Los Angeles to Assistant

Prosecutor Thomas Parrino and Homicide Detective

Robert Schottke which contradicted some of Dr. Shep-

pard’s witness stand statements.

Chief Story said a May Co. salesman was prepared

to testify that Dr. Sam purchased two hunting knives

and a fishing rod at the downtown department store

some time prior to his wife’s murder. On the witness

stand, Dr. Sam said he had no recollection of a knife

purchase. He was not asked about the fishing rod.

“We are trying to determine what happened to the

fishing rod,” Story said.

According to Dr. Gerber, the chief added, the

weapon with which Mrs. Sheppard was struck 25 or

more savage blows was “very likely a heavier object

than a fishing rod.”

Story assigned sewer cleaning experts to check the

EOE IEE MNT HEE TT TE TET Ne RE TTL I PRIS 2

DOCTOR'S ARREST

plumbing and downspouts of the Sheppard home to-

day in a renewed search for the missing murder

weapon and Dr. Sam’s mysteriously vanished T-shirt.

The police chief made this observation: “The case

looks more encouraging than at any time since we

took it over. Our hopes for a definite solution are

rising.”

Detective Chief James McArthur disclosed that

scientific tests at the Sheppard home have definitely

established that the killer washed off a trail of blood

from the murder bedroom to the downstairs section.

The tidy murderer, McArthur said, missed a few

specks of blood on the stair risers.

“My conclusion,” he added, “is that this blood §

' dripped from the murder weapon.”

When to present the 22-day-old murder case to the

Cuyahoga County Grand Jury is the subject of con-

stant conferences in the office of Prosecutor Frank T.

Cullitan.

58a

Article in The Cleveland Press of July 30, 1954

! (See opposite)

ee ee

san th ok CAEL AGUS Last ak See NS aE

The Cle

CLE\

(AN EDITORIAL)

Maybe somebody in this town can remember +

parallel for it. The Press can’t.

And not even the oldest police veterans can, eithe:

Everybody's agreed that Sam Sheppard is the mos

unusual murder suspect ever seen around these parts

Except for some superficial questioning — Coro-

ner Sam Gerber’s inquest he has .

been scot-free of any official

crilling into the circumstances ;

of his wife’s murder. be

From the morning of July 4,

when he reported his wife's kill- ’

ing, to this moment, 26 days

jater, Sam Sheppard has not set )”

foot in a police station.

makes Malenkov's Russian con- g

cealment amateurish.

His family, his Bay Village

friends—which include its offi-

cils—his lawyers, his hospital

staff, have combined to make

law enforcement in this county

look silly.

The longer they can stall bringing Sam Sheppard to

the police station the surer it is he'll never get there.

The longer they can string tiiis whole affair out the

surer it is that the public's atteniion sooner or later

will be diverted to something else, and then the heat

will be off, the public interest gone, and the goose will

hang high.

This man is a suspect in his wife’s murder. Nobody

yet has found a solitary trace of the presence of any- |

body else in his Lake Rd. house the night or morning

his wife was brutally beaten to death in her bedroom.

And yet no murder suspect in the history of this \

county has been treated so tenderly, with such i infinite

The Suspect

ae +

OVERSIZE PAGE-SEE NEXT FRAME

FOR REMAINDER OF PAGE

Why Isn't Sa

solicitude for his emotions, wi

the young man.

Gentlemen of Bay Village,

‘leveland, charged jointly wit

This is murder. This is no

ime to permit anybody—no

vit, stall, fake, or im

he police or from the questic

tind knows a murder suspect

t a police station.

The officials throw up thei

iniought of bringing Sam S!

Cleveland Press

The Newspaper That Serves Its Readers

City

44 Pages—7 Cenis

CLEVELAND, FRIDAY, JULY 30, 1954

Phone CHerry 1-1111

ee ee + ert ee

solicitude for his emotions, with such fear of upsetting

the young man.

Gentlemen of Bay Village, Cuyahoga County, and

‘leveland, charged jointly with law enforcement—

This is murder. This is no parlor game. This is no

ime to permit anybody—no matter who he is—to out-

vit, stall, fake, or improvise devices to keep away from

he police or from the questioning anybody in his right

tind knows a murder suspect should be subjected to—

t a police station.

The officials throw up their hands in horror at the

nought of bringing Sam Sheppard to a police station

SAE epede,

for grilling. Why? Why is he any different than any-

body else in any other murder case?

Why should the police officials be afraid of Bill

Corrigan? Or anybody else, for that matter, when

they are at their sworn business of solving a murder.

Certainly Corrigan will act to protect Sam Shep-

pard’s rights. He should.

But the people of Cuyahoga County expect you,

the law enforcement officials, to protect the people's

rights.

me murder has been committed. You know who the

chief suspect is.

ETE SN TIM a SS ELF RN EE eR ERY ch

t Sam Sheppard in Jail?

You have the obligation to question him—question

him thoroughly and searchingly—from beginning to

end, and not at his hospital, not at his home, not in

some secluded spot out in the country.

But at Police Headquarters—just as you do every-

other person suspected in a murder case.

What the people of Cuyahoga County cannot un-

derstand, and The Press cannot understand, is why

you are showing Sam Sheppard so much more con-

sideration as a murder suspect than any other person

who nas ever before been suspected in a murder case.

Why?

-_-

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“Ip Ajzepnoyased e wuoysad wy

yojen 0} JOIUasS [OOYIS Ys} |

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.