# Amicus Curiae Brief — Sheppard v. Maxwell

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## Record

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

## Text

JAN 2 419

JOHN F. DAVIS, C

Supreme Court of the United States
Octoser Term, 1965.
No. 490.

a aie
SamvueLt H. SHEPPARD,
Petitioner,

=r

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

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ii

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 —_—,
SamvueL H. SHEPPARD,
Petitioner,
—VS.—
E. L. Maxwe.i, Warden,
Respondent.

ae

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

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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).

3

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).

aa

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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

5

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.

a

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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.

7

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

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9

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.

—"

10

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

11

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.

——

12

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.”

_—

7

13

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).

a

14

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).

_—

15

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

16

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

17

L

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.

18

(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

———

19

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).

ee

20

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 —

21

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).

an

22

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

en

23

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.

—

24

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 —

25

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.

Ӥ. 32.

a

26

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. .

27

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.

28

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,

r

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).

2a

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

ta
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

a

Sa
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.

6a
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.

___—_

7a
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.

8a
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.

9a

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.

l

“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.

Se

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.

ad

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:

“

Zo

Handcuffs

ay

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

ma

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:

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

a

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.

e

54a

Article in The Cleveland Press of July 21, 1954

(See opposite) &

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he Cleveland

The Newspaper That Serves Its Readers

8

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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ay) YIM Sa[BIn.yjs Jo saqios B sem poUuNe;o ay Jey.

uy Ainfur yoou snoies B parayyns pey ay yey) Ajmuey
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uy ue Suruyeygo ynoge ,,A.lny OU,, St aay) pue *4]1.10}
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ETOT 10J 325 St UOUA;UOD SIU JO [ELI “WANOD s,10AeW

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oq 0} parsqaq osam ooyod ayy “ese9 Jopanw pied
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asertA Aegq ut Sutszeay sey & dATa9I JOU P[Nod 4udT/d
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JaiyD Aq paxejop Aja}urjopul Uvaq sey Sutseay yeu, ’

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quawjoiput 40j Arne puey ay} 0} payiesaid oq pjnow

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“]1ejop ase sapantu purddeys | |

penbs aprorwoy uew-cyT oy) Suryjoanp nyyoyy sower
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p[nom [e1J} ay} ples UOYyR
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s\wpe day apeul sake] Sst
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0} puRpaAg{O 0} PausNjas sadex |

SSIW Ua A1O}S STY pasay]e Inq |

‘yoke ysel dis} sajazuy soy e |
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padin pey udyieW yey} YO

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OU apeW SaAtjIaJap aprorwoj{

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UIT Sty jUuads ‘[e1oUNJ s,aJIM |
siy Jaye Aep ayy [eydsopy Mat, |
Aeg je SZunjesado pauinsal oym
‘yyedoajso pjo-seah-Qg eyL

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uo jyooyos YysIy ay} 3e Sjlld
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aw} auo je sem Weg Ig
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pue peAojdwia ay sanbiuyva} ay)
JO UoNndrzo9sap sjaIdwiod e Jay |
aaes ay ‘1e?e"t ‘UOT}eJadO yjNOdTy
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pue weg iq awoy asoym je
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SIWpPt Jay apeul sadeq{ Sst

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*AUOWI"}S9} STY JOIPeUOD |
0} PURIAAaTD 0} PauINja sakeqy |
SSI Uat|M AIO)S STY Pasay]e Inq |
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padin pey ude yey) YEO
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*Aepo) tee Ayunod ay} uy Aep
UIT sty quads ‘je1auNny s,ayiM |
| | sty Jaye Aep ay} [eydsopyy Mar, |
ey _ae Aeg 18 Juyeiseado pawinsal oym
| wane ‘yyedoa}so plo-ieak-og aL
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‘ayy apeut Apeasye sey ueyyins #94SeQ eaed Ajsauisoy UATE
Jojnoesolg ‘aaAaMoxY ‘uot, “WRI [TBQIOOF JooysS Y3IH
se Aine pues s0j Juepuayap P3eII!A Aegq ayy Joy uesoIsAyd |
Auojay & pjoy 0} AjUO pazamod PWT} GUO je SEM WeS qd
*‘palajunooua ay sanjpnoiyjIp ay)

‘wa st Sutmeoy Aqeurutjeid e
ye a}esjs}Zeur Zurpisaid ayy pue paAojdwa ay sanbjuyva} ay!
‘yanoD jediunyy JO YONdiosap ajajdwoos e Jay
Aes al ‘19}eT “UOT}BIadO 4jNdTJ

-_-——-

_—_—_—— CT

puejaagjg JO 4IN0d s,J0oAeW

ueqingns Jayjoue 0} Zur
-1B9Y IY} Jaysuel} [IM ay ‘astm

“Ip Ajzepnoyased e wuoysad wy
yojen 0} JOIUasS [OOYIS Ys} |

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386411_0269%3A06. Public record. Not legal advice.