Amicus Curiae Brief — Sheppard v. Maxwell
Supreme Court brief1966
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TABLE OF CONTENTS.
A
I RS i ara |
cmummery of Argument ....................._.- 6
Introductory Statement —....-.-..-- 11
I, The Petitioner Was Not Deprived of His Con-
stitutional Rights to a Fair Trial _...._______ 15
A. As to Publicity Before the Trial _..____._.. 16
5. Publicity During Trial .................. 35
II. Impartiality of the Trial Judge _._._________- 58
III. Lie Detector Testimony ~......_____._.____- 64
IV. Alleged Misconduct of Bailiffs in Allowing
Jurors to Call Their Families _..___________ 71
V. Other Alleged Constitutional Violations ______ 78
VI. Sufficiency of the Evidence __.... 80
VII. The Aggregation of Error _..______________ 81
a 82
TABLE OF AUTHORITIES.
Cases.
Buchalter v. People of State of New York, 319 U. S.
427, 63 S. Ct. 1129, 87 L. Ed. 1492 ____________ 69
Delli Paoli v. United States, 352 U. S. 232 (1957), 77
Si PU as GE AID SIE cine scinslersesewsniccicommenenin es tian 21
memere ©. Beate, 137 GO. &. 355 .............-.-.. 8
Estes v. Texas, 381 U. S. 532, 14 L. Ed. 2d 543 (1956) 57
SE UL, GU Ws Te II eontinierssicceccohucnsdishetisapeanaecitein 7, 65
Ford v. U. S., 233 F. 2d 56 (C. A. 5th Tex.) (1956) _. 44
a
Frye v. United States, 293 F. 1013 (D. C. Cir. 1923) - 66
Holt v. United States, 218 U. S. 245 (1910), 31S. Ct.
SOE Bis TE Se ecstatic inne 21
Irvin v. Dowd, 366 U. S. 717, 6 L. Ed. 2d 751, 81 S. Ct.
1639 CO) saan sen canines 6, 18, 22, 28, 82
Jones v. Cunningham, 313 F. 2d 347 - nadie
6 > SAMS RE OP eran ania mame ame cnn meno 60
Mattox v. United States, 146 U.S. 140 (1892) ince 76
Moses v. Hudspeth, 129 F. 2d 279 (10th Cir.) (1942),
certiorari denied, 317 U. S. 665, 87 L. Ed. 534,
Oe Se Fe hi 60
Murchison, In re, 349 U. S. 133, 99 L. Ed. 942 (1955) 7
NAACP v. Button, 371 U. S. 415 (1963) ~--------- 10
NAACP v. Flowers, 377 U. S. 288 (1964) ~----- Sosa a
New Jersey v. Driver, 183 A. 2d 655 (1962) _------ 66
New York Times v. Sullivan, 11 L. Ed. 2d 1109 (1965) 9
Ohio v. Smith, 113 O. App. 461 (1960) ------------ 66
Oliver, In Re, 333 U. S. 257, 92 L. Ed. 682, 68 S. Ct.
Nea re i LICE RS ete ctoney Bona tre tados Deore ree 13
Opper v. United States, 348 U. S. 84 (1954) __------ 21
Rank v. State (1962, Alaska), 373 P. 2d 734 ______- 71
Richards v. State, 43 O. App. 212, 183 N. E, 36 ___--- 15
Rideau v. Louisiana, 373 U. S. 723, 10 L. Ed. 2d 663,
2S Ch S6lt (A We 6, 18, 28, 82
Smith v. California, 361 U. S. 147 (1959) ~-------- 10
State v. Hilliard, 89 Arizona 129, 359 P. 2d 66 (1961) 43
State v. Joseph, 90 O. A. 427 ___--- Beets, 8
State v. Sheppard, 352 U. S. 910 (1956) --_----- 6
State v. Sheppard, 352 U. S. 955 (1956) ~------- 6
State, ex rel. Pratt v. Weygandt, Chief Justice, 164
O. S. 463, 132 N. E. (2d) 191 (1956) ~------- 7
Talley v. California, 362 U.S. 60 (1960) __________ 10
Townsend v. Sain, 372 U.S. 293 (1963) _______ 76
Trombley v. Langlois (R. I.), 163 A. 2d 25 (1960) _._. 43
Tumey v. Ohio, 273 U.S. 510, 71 L. Ed. 749 (1927) _. 7
United States v. Bando, 244 F. 2d 833 (1957), cert.
den. 355 U. S. 844, 2 L. Ed. 2d 53, 78S. Ct.67__ 71
United States v. Sorcey, 7 Cir., 151 F. 2d 899 ( 1945),
certiorari denied, 327 U. S. 794, 66 S. Ct. 821, 90
IE Sab otebecd ils acimmannciics cies. 21
Walker v. Johnston, 312 U. S. 275, 85 L. Ed. 830, 61
a Oe a 60
Wolf v. Nash, 313 F. 2d 393 (C. A. Mo.) (8th Cir.)
(1963), certiorari denied, 83 S. Court 1713, 374
U.S. 817, 10 L. Ed. 2d 1041
Texts.
30A American Jurisprudence, Sec. 172, p. 89 ______
15 A. L. R. (2) 1152
Constitutions.
Constitution of Ohio, Art. I, Sec. 11
Constitution of the United States:
First Amendment
Ohio Revised Code:
Sec. 313.17
Sec. 2701.03
Sec. 2945.31
Sec. 2945.33
Sec. 2945.83
~~
In the Supreme Court of the United States
OCTOBER TERM, 1965.
No. 490.
SAMUEL H. SHEPPARD,
Petitioner,
Vv.
E. L. MAXWELL, Warden,
Respondent.
BRIEF AMICUS CURIAE ON THE MERITS
ON BEHALF OF THE STATE OF OHIO.
To the Honorable the Chief Justice and Justices of the
Supreme Court of the United States:
The Prosecuting Attorney of Cuyahoga County, Ohio,
as the authorized law officer thereof, is herewith filing a
brief amicus curiae on the merits in the above entitled
ase, for consideration by this Court in the disposition of
his case.
STATEMENT OF FACTS.
The omission in the agreed statement of facts filed
n the District Court (in which proceeding we took no part)
f all of the pertinent evidence presented by the State in
he trial of this case, necessitates our directing the atten-
ion of this Court to an objective statement of the evidence
s set forth in the opinion of the Court of Appeals of Cuya-
oga County (R. 64a-80a).
2
The State proved by direct and circumstantial evi-
dence that Marilyn Sheppard was brutally murdered in her
bedroom sometime between 3 and 4 a.m. on the morning of
July 4th, 1954; that at the time she was murdered the only
person in that home, except a six year old son, was her
husband, the petitioner. It was conclusive from the evi-
dence that there was a simulated burglary and that nobody
but the petitioner had the time and exclusive opportunity
to fake such a burglary to divert suspicion from himself.
The evidence was so overwhelming that the burglary
set-up was a fake that even counsel for the defense was
obliged to say to the jury:
“Well, of course, we don’t claim there was a burglary.
I mean I don’t know why the intruder was there. We
claim there was a man there, but whether he was
there for a burglary or not, I don’t know. We never
claimed that he was.” (Tr. 62, Supp.)
The jury was fully justified in concluding that the only
one who was in a position to and had the time, and who
actually did set up this fake burglary was the petitioner.
That the story told by the petitioner about the bushy-
haired “form” in the house, and on another occasion
“forms” (he wasn’t sure whether there was one or two
“forms”) was concocted, is shown by the evidence.
The evidence established that Dr. Lester Hoversten
visited the petitioner at Bay View Hospital on July 5th,
at which time Dr. Steve came into the room, was irritated
and stated that he had left strict orders that no one was
- to see Sam unless he, Dr. Steve, was first notified (Tr.
3803).
Dr. Hoversten testified relative to that incident as
follows:
“Q. Did Steve leave at any time after he came in?
_ ia
3
A. Yes. After speaking sharply to me, he turned
on his heel and walked quickly out of the room, and
then he came back in just a few minutes.
Q. And when he came back in, did he say any-
thing?
A. Yes. I remember I was sitting on the left hand
side of the bed, and Steve sat near the foot of the bed,
and he advised Dr. Sam to go over in his mind several
times a day—
As I recall, Dr. Steve addressed Dr. Sam, and
said in words to this effect, ‘You should review in your
mind several times a day the sequence of events as
they happened so that you will have your story
straight when questioned,’ and then he gave as an
example, ‘You were upstairs, you went downstairs,
and from here to there,’ and so forth.” (Tr. 3812-13.)
The fantastic stories told by the petitioner were so un-
reasonable and absurd as to be, in the opinion of the jury,
unworthy of credence.
The Court of Appeals of Cuyahoga County, after giv-
ing in its opinion a summary of much of the evidence deal-
ing with many of the physical facts and conditions of the
premises as found on July 4th and of the declarations and
actions of the parties involved as testified to by the public
authorities and other witnesses, together with what the
defendant said to others and in his testimony upon trial in
relation to the events of the morning, said:
“The testimony of the defendant, in dealing with
the events that took place in his presence or the things
that he did, was characterized by the State as vague,
indefinite, uncertain or factually highly improbable.
During the time he was under cross-examination the
defendant gave evasive answers such as ‘I can’t recall’
or ‘I can’t remember,’ approximately 216 times to
questions concerning facts and circumstances that
took place in his claimed presence material to the is-
sues in the case.
4
“The jury, under the instruction of the court, was
presented with but one question or issue of fact and
that was, had the State shown beyond reasonable
doubt that the defendant purposely killed Marilyn
Sheppard?
“The State's case is based in part on circumstantial
evidence. The law of Ohio on this subject requires
that the facts and circumstances upon which the
theory of guilt is based must be established beyond a
reasonable doubt and the facts so established must
be entirely irreconcilable with any claim or theory of
innocence and admit of no other hypothesis than the
guilt of the accused. Carter vs. State, 4 Oh. App. 198.
“If, therefore, the jury, after careful deliberation,
found that there was any possible hypothesis of in-
nocence, after a consideration of all of the evidence,
then the defendant would be legally entitled to be
discharged, but if the jury found, after full delibera-
tion, there was no possible hypothesis of innocence
based on the facts as they found them to be and that
the facts found are such as to be irreconcilable with
any other reasonable hypothesis, than the guilt of the
accused, then a verdict was required.
“This was a jury question and we hold that there
was sufficient evidence to support the verdict of guilty
as found by the jury.” (Emphasis ours.)
Reference is made in the petition (p. 10) to the in-
juries allegedly sustained by the petitioner. Petitioner's
injuries were the subject of conflicting testimony on the
trial, Whatever injuries the petitioner sustained. he
claimed they were caused by a blow or blows of the fist of
the assailant that he encountered in the bedroom where
his wife came to her death as a result of many blows on
the head with a blunt instrument. It was on this occasion
and only then, that the petitioner claimed that there might
have been two assailants, “one working over his wife” and
. : .
the other striking the petitioner from the back with his
fist. While petitioner was “chasing” the “form” to the
beach (instead of summoning help for his wife), there was
no suggestion that there was more than one object or
form in front of him,
Reference is made in the petitioner's brief to the use
of the words “grilling” and “third degree” in a newspaper
editorial (considered by this Court in the former petition).
Those expressions are frequently applied to a thorough in-
terrogation and do not at all necessarily mean the use of
force or violence. No one laid a hand on the petitioner.
Further, that editorial appeared months before the trial.
The transcript of the bail hearing which appears in
the Appendix to the petition is not complete (s.164). The
complete answer of the foreman explaining the “pressure”
was as follows:
“Q. What was the pressure that was placed on
you?
A. Only curious people who wanted to know
what we knew on the Grand Jury.” (Emphasis ours.)
The pressure was for information and not, as suggested,
to indict the petitioner.
No evidence was proffered by the State on the trial of
this case that the petitioner refused to take a truth serum
test. His brother, Dr. Steve Sheppard, a defense witness,
testified on cross-examination and re-direct as an expert
on the use of the drug sodium pentothal; that its common
use is for anesthesia and that its use as a truth serum has
been condemned.
—
6
SUMMARY OF ARGUMENT.
In reversing this State court conviction, the District
Judge bottomed his decision on four separate grounds,
(1) newspaper publicity before and during the trial de-
nied Sheppard a fair trial, (2) the trial judge should have
disqualified himself (not assigned as error in the State
courts), (3) evidence that Sheppard had refused to take
a lie detector test (not assigned as error in the State
courts) and that another witness had taken such a test was
improperly brought before the jury, and (4) the bailiffs in
charge of the jury after the cause was submitted to it
improperly allowed individual jurors to make telephone
calls to their families.
On the aspect of publicity, the District Judge relied
mainly upon this Court’s holdings in Irvin v. Dowd, 366
U. S. 717 (1961) and Rideau v. Louisiana, 373 U. S. 723
(1963), decisions which were rendered by this Court some
years after the case at bar was finally adjudicated on the
merits and certiorari was denied, State v. Sheppard, 352
U. S. 910 (1956) and State v. Sheppard, 352 U. S. 955
(1956). There is to be found in the decision of the District
Judge no independent evaluation of the voir dire testi-
mony, as this Court held should be done, Irvin v. Dowd,
supra. This task was performed by the Court of Appeals.
As the majority of the Court of Appeals said, neither
Irvin nor Rideau support a holding that the jurors’ testi-
mony had tc be rejected by the trial judge and that a fair
jury could not possibly have been obtained in this case.
In holding that the trial judge was not a fair and an
impartial judge in the trial of this case and should have
disqualified himself, the District Judge gave credence to
an unsworn statement made by a former Cuyahoga County
employee to the effect that in July, 1954, the trial judge
allegedly said that he (Sheppard) was guilty, and to an
Tl a OR En _
7
unsworn statement made by Dorothy Kilgallen (she was
not cross-examined) to the effect that the trial judge al-
legedly said to her that Sheppard was “guilty as hell” and
that the case was “open and shut.” These statements were
made ten years after the trial and at a time when they
could not be rebutted because the trial judge was deceased.
The statements were therefore incompetent as hearsay.
The District Judge also cited in support of his finding
that the trial judge should have disqualified himself, the
decisions in State, ex rel. Pratt v. Weygandt, Chief Justice,
164 O. S. 463, 132 N. E. (2d) 191 (1956) ; Tumey v. Ohio,
273 U. S. 510, 71 L. Ed. 749 (1927) ; and, In re Murchison,
349 U. S. 133, 99 L. Ed. 942 (1955), which are com-
pletely inapposite. The trial judge in the case at bar was
not the trier of the facts. Nor is there any basis in the
record of the trial of this case for any finding that the trial
judge lacked integrity and did not discharge his duties
conscientiously, carefully, and with dignity and due re-
gard for the constitutional rights of the petitioner to a fair
trial. And, most important in the habeas corpus record,
is a statement by one of the original defense counsel, re-
lating that Judge Blythin offered to disqualify himself if
defense counsel wished, but they were satisfied that he
would be fair and impartial and did not file any affidavit
of bias and prejudice. (R. 382a.) |
Nor were any appellate remedies withheld from this
petitioner as was the case in Fay v. Noia, 372 U. S. 391,
a decision which the District J udge held applicable in con-
nection with his finding on the lie detector testimony,
which had not been assigned as error in the State courts.
Nor is there any evidentiary showing that the petitioner
was denied due process of law on this issue.
There is no evidentiary showing in this case that the
jurors’ calls to their homes contained any improprieties.
—
Not mentioned by the District Judge or by the dissenting
opinion is the testimony »{ bailiff Francis taken at the
hearing on the motion for new trial, showing that the
telephone calls made by the jurors to members of their
families were harmless (Tr. 7084-7085).
The laws of the State of Ohio provide for a motion for
new trial and upon the hearing of that motion, the affi-
davits and testimony of the jurors may be received, Em-
mert v. State, 127 O. S. 235; State v. Joseph, 90 O. A. 427,
Although several jurors were subpoenaed and were
interrogated by defense counsel at the hearing on the
motion for new trial, not a word of testimony was produced
to justify the defense claim that the jurors were influenced
by anything other than the evidence produced in open
court, in reaching their verdict. The claim that they were
influenced by new stories or any other outside influence
is not supported by the record.
And the majority opinion of the United States Court
of Appeals in the proceeding here involved, states:
“1) Publicity.
“We should at the outset confess a certain temp-
tation to yield to today’s accelerating current of ex-
citement and concern about undue press coverage of
criminal charges and trials, and to affirm petitioner's
release as dramatic vindication of the bar’s contention
that some of its own members and some of the various
media of information have by misuse of their rights
prevented our courts from according fair trial to all
who are accused of crime. Doubts as to the efficacy
and propriety of such action, however, are supple-
mented by the certain knowledge that it is our duty
as federal judges to avoid a state judgment of convic-
tion only where some constitutional infirmity may be
‘found. Careful consideration of this case leads to the
conclusion that no such infirmity infects Dr. Shep-
pard’s conviction.” (Pet. App. A, s.6-s.7.)
fatten —
9
The American Civil Liberties Union and its Ohio af-
filiate, hereinafter referred to in this brief as the ACLU, in
their Amici brief ask this Court to restrict the exercise of
the First Amendment Freedoms by certain of the citizenry
and to require the State trial courts to do likewise when
a crime has been committed.
The discrimination which the ACLU seeks to have
this Court apply against certain of the citizenry such as
law enforcement officers and the news media is not only
prohibited by the First Amendment and the Fourteenth
Amendment, but by Article I, Section 11 of the Ohio
Constitution, which provides:
“Every citizen may freely speak, write, and publish his
sentiments on all subjects, being responsible for the
abuse of the right; and no law shall be passed to re-
strain or abridge the liberty of speech, or of the press,
In all criminal prosecutions for libel, the truth may
be given in evidence to the jury, and if it shall appear
to the jury, that the matter charged as libellous is
true, and was published with good motives, and for
justifiable ends, the party shall be acquitted.”
As this Court said, in New York Times v. Sullivan,
11 L, Ed. 2d 1109 (1965), by Mr. Justice Goldberg in a
concurring opinion:
“The theory of our Constitution is that every citizen
may speak his mind and every newspaper express its
view on matters of public concern and may not be
barred from speaking or publishing because those in
control of government think that what is said or
written is unwise, unfair, false or malicious * * *.”
“Such criticism cannot in my opinion be muzzled or
deterred by the courts * * *,”
The Fourteenth Amendment protects the First
Amendment freedoms against abridgement by state action,
so that a State court has no constitutional authority to in-
terfere with the exercise of the First Amendment free-
»
i
10
doms, and the trial court in the case at bar recognized this
limitation of its authority. The decisions of this Court have
consistently held that only a compelling state interest in
the regulation of a subject within the State’s constitutional
power to regulate can justify limiting First Amendment
freedoms. Smith v. California, 361 U. S. 147 (1959);
Talley v. California, 362 U. S. 60 (1960); NAACP »v.
Flowers, 377 U. S. 288 (1964); NAACP v. Button, 371
U.S. 415 (1963).
This is not a case where law enforcement agencies
were making any public statements concerning progress of
investigation of a crime or proof already obtained as to the
complicity of any person. The publicity that occurred
during the investigation of this crime shows just the
opposite. The news media were criticizing the law en-
forcement agencies because of a lack of progress in the
solution of the crime. Nor were there any public state-
ments by law enforcement officers during the investiga-
tion that any proof or any confession had been obtained
as to the complicity of the petitioner in the murder.
The publicity that occurred in this case was engen-
dered by the petitioner’s own acts and was not a one-way
thoroughfare. The petitioner, members of his family and
his counsel were fairly prolific in the exercise of the First
Amendment freedoms in their statements to the news-
papers for publication and public consumption before and
during the trial, as will hereinafter be noted in this brief.
There was no conflict between the exercise of the
First Amendment freedoms and a fair trial in this case.
If the evidence offered on the trial itself was not sufficient
to convict, or any other constitutional guaranty to a fair
trial was violated on the trial itself, remedy was provided
by due process of law in the courts, regardless of what
anybody had to say about the case in the news media or
elsewhere before or during the trial.
SR Na —
11
ARGUMENT.
INTRODUCTORY STATEMENT.
The newspaper articles, headlines and other news-
paper material contained in the District Court’s decision,
in the dissenting opinion in the Court of Appeals, in the
petitioner’s brief and in the ACLU Amici brief were not
offered in evidence by the prosecution on the trial, nor
were they received in evidence for the consideration of the
jury in the trial of this case, and the claim that the trial
jury was influenced in reaching its verdict by this news-
paper material, rather than by the evidence produced in
open court, is merely the assertion of the District Judge,
the dissenting judge, petitioner’s present counsel and
counsel for the ACLU Amici.
It is therefore not within our province to explain or
defend anything that appeared in a newspaper, favorable
or unfavorable, since these newspaper articles and head-
lines were not offered in evidence by the prosecution, or
received in evidence by the trial court and any opinions or
interpretations as to their meaning, such as rendered by
the District Judge, the dissenting opinion, and as argued by
present counsel for the petitioner and counsel for the
ACLU in their briefs, are, under the circumstances, point-
less. The argument then of both petitioner’s counsel and
counsel for the ACLU that much that was never offered
and would have been inadmissible if offered at the trial,
appeared in the newspapers, is also pointless, since the
prosecution did not offer newspaper articles into the evi-
dence for the consideration of the jury, and there is no
proof that the jury were reading the papers or were in-
fluenced in reaching their verdict by anything other than
the evidence produced in open court.
No factual proof has ever been offered in this case,
either on the hearing on the motion for new trial when an
—
opportunity was afforded to interrogate the jurors, or on
the direct appeal on the merits to this Court, or in the
present habeas corpus proceeding, that the trial jury that
was carefully selected, interrogated as to possible con-
tacts with pre-trial publicity, and accepted by both sides
in this case, were inherently suspect, lacked integrity and
were untrue to their oaths to decide this case on the evi-
dence produced in open court and on nothing else, as in-
structed by the trial court.
The claim that the Cleveland Press campaigned to
have the petitioner arrested, indicted and convicted and
that without the deliberate pressure of the Cleveland Press,
there would have been no inquest, no arrest and no trial
is a persecution complex adopted by the defense on the
trial, in the hope of inoculating the trial jury and the
courts with that persecution complex. This matter was
under investigation by the authorities after the murder was
committed. It was under investigation by the Prosecutor’s
office from July 7th, 1954 on and when we thought we had
sufficient evidence to present to the Grand Jury, the case
was presented to the Grand Jury. There was nothing forced
here at all by the newspapers. We had the necessary evi-
dence.
We had no help from the Cleveland Press or any other
news media in painstakingly gathering together the scien-
tific and other evidence that was offered by the prosecution
to the Grand Jury and on the trial of this case, which the
trial record shows established the guilt of this petitioner
of the murder of his pregnant wife beyond a reasonable
doubt, and present counsel for the petitioner does not point
to any insufficiency in the evidence offered on the trial.
Further, although this murder was committed, by his own
admission, in the presence of the petitioner in his home,
we received no help from the petitioner in the solution
_——
13
of this crime. No husband ever displayed a more lacka-
daisical interest in helping to solve the murder of his wife
than did this petitioner. His demeanor: throughout the
investigation was evasive and uncooperative. It was, then,
the petitioner himself, by his actions after the murder of his
wife was committed, and his public disclaimer of any
knowledge as to who killed his wife, though he was present
when she was killed, who brought about the barrage of
publicity that occurred in this case.
It is ludicrous then, as the District Judge did, to hold
the trial judge, the trial jury and the prosecution respon-
sible for the petitioner’s acts that resulted in the type of
publicity that occurred in this case, criticizing the peti-
tioner and criticizing the public officials.
If anyone had a “trial by newspaper” in this case, the
trial judge, the trial jury and the prosecution did in this
habeas corpus proceeding, for the decision of the District
Judge shows that his findings against the trial judge, the
trial jury and the prosecution are based substantially upon
what he read in the newspapers, and not upon what the
trial record shows. And these findings were made without
giving the prosecution an opportunity to defend and be
heard (Pre-trial Order No. 1). The proceeding was not
open to the public, a practice condemned by this Court in
In Re Oliver, 333 U. S. 257, 92 L. Ed. 682, 68 S. Ct. 499.
The decision of the District Judge shows further, that
he made no independent evaluation of the voir dire testi-
mony in reaching his conclusion that the trial jury lacked
integrity.
Who should be in a position to know whether the trial
jury, selected by both sides, was a fair and an impartial
jury? The District Judge, who was not present, did not
examine the voir dire and had no connection with the trial
proceedings? Petitioner’s present counsel and counsel for
ss aaa
14
the ACLU, who had no connection with the case and did
not represent the petitioner on the trial? Or, defense coun-
sel who represented the petitioner on the trial and took
part in the selection of the jury? And, defense counsel
who represented the petitioner on the trial and who were
in a position to know and observe this jury throughout the
trial, were satisfied that they had a fair and an impartial
jury for they stated to the jury in argument:
“May I take this opportunity—as I started to say,
may I take this opportunity to congratulate you on the
splendid attention, the tireless effort you have dis-
played during these nine weeks. You have been
deprived, probably, of many comforts that you ordi-
narily enjoyed in and around your home with your
family because of the admonitions that you have re-
ceived throughout the trial by his Honor, Judge
Blythin.
“The purpose, ladies and gentlemen, of those ad-
monitions was that we could come to this point in the
lawsuit where your minds would be free, your minds
would be open, and that you could take into considera-
tion all the facts and all the testimony that has been
submitted to you without any outside influence, and I
am sure, erd I say this to you sincerely, because I have
had the opportunity of observation during this entire
period, that you have done just that.” (Tr. 5371-5372.)
(Emphasis ours. ) se
As a further demonstration of the confidence defense
counsel who represented the petitioner at the trial had in
this trial jury, an opportunity was accorded counsel on the
hearing on the motion for new trial to interrogate the
jurors, but they did not see fit to inquire into possible
contacts with trial publicity.
15
L
THE PETITIONER WAS NOT DEPRIVED OF HIS
CONSTITUTIONAL RIGHTS TO A FAIR TRIAL.
The trial of this case started on October 18, 1954, some
three and a half months after the crime was committed.
When a motion for a change of venue and/or a continuance
was made at the outset of the trial, because of the publicity
that had occurred, the trial court said:
“This court is not now in a position to know at all
whether we can have a fair and impartial jury in this
case. His belief, based on experience, is that we cer-
tainly can, but he certainly will not proceed with this
case in this county at all if it appears by any reason-
able picture that a fair and an impartial jury cannot
be had.” (Tr. 16.)
The trial court said further:
“The motion for change of venue will be held in abey-
ance, and we will proceed at 1:15 this afternoon in an
effort to determine whether or not we can secure a
fair and impartial jury. If we are not able to do that,
there will be no question in this court’s mind at all
but what this case ought to go out of Cuyahoga
County, whatever may be the effect of that.” (Tr. 18.)
The right to a change of venue is a statutory right in
Ohio, subject to the sound discretion of the trial court to
determine whether a fair and an impartial jury can be
impanelled in the county wherein the crime was com-
mitted, Richards v. State, 43 O. App. 212, 183 N. E. 36.
The only way in which that can be determined is to pro-
ceed to impanel a jury, which is what the trial court did in
this case.
Further, the trial court was not required to speculate
as to whether a trial at a later date would result in more
or less publicity. The Constitution provides that the de-
fendant in a criminal case is entitled to a speedy and
ona
16
public trial. As it was, the petitioner was not brought to
trial until three and a half months after the crime was
committed, and the trial court was not required to delay
the trial indefinitely, otherwise the petitioner could be
heard to.complain that his constitutional right to a speedy
and public trial was violated. Counsel for the petitioner
had applied for a continuance of the trial “to permit the
extraordinary publicity to quiet down.” It was not claimed
that they were not prepared for trial, and, as the trial court
stated: “nor was any suggestion made as to who was going
to quiet down the publicity, nor when, nor how.”
A. As to Publicity Before the Trial.
The jurors who sat in the trial of this case were fully
examined so far as defense counsel who represented the
petitioner on the trial desired as to any knowledge or in-
formation they might have of the case. At no stage of the
proceedings in the trial court, on the hearing on the motion
for new trial, or on the appeals did the petitioner offer any
evidence to prove that any juror was in fact hostile, un-
qualified or prejudiced by the publicity, or was untrue to
his oa’h to decide the case on the evidence produced in
open court and on nothing else.
Juror Barrish is mentioned in the petitioner’s brief
(p. 32), together with the reason he gave for having read
about the case. The further extended examination of Juror
Barrish by both parties is omitted from the petitioner’s
brief and the defense omit to state that Juror Barrish was
accepted by passing him for cause (R. 115) and that the
defense had peremptory challenges which they chose not
to exercise with reference to Juror Barrish.
Juror Borke is also mentioned in the petitioner’s brief
(p. 32). Here again, the extended examination of Juror
Borke by both parties is omitted from the petitioner’s brief,
Z 9
17
showing that the defense were satisfied that Juror Borke
would be an impartial juror, and they chose not to exercise
a peremptory challenge with reference to this juror.
The Court of Appeals independently evaluated the
voir dire testimony and said:
“In determining whether Dr. Sheppard has carried
the burden of demonstrating the unconstitutionality
of his trial, surrounded as it was by pervasive pub-
licity, it is our duty to review independently this voir
dire examination of the prospective jurors in the state
court. Irvin v. Dowd, 366 U. S. 717, 723 (1961);
United States ex rel. Bloeth v. Denno, 313 F. (2) 364,
372 (CA 2, 1963), cert. denied, 372 U. S. 978 (1963);
United States ex rel. Brown v. Smith, 306 F. (2)
596, 602 (CA 2, 1962), cert. denied, 372 U. S. 959
(1963) ; Geagan +». Gavin, supra, 292 F. (2) 246-47.
The voir dire examination fills nearly 1600 pages in
the record of the present case. Each prospective juror
was questioned about his acquaintance with the pre-
trial publicity, and each of those who ultimately re-
turned the guilty verdict swore that such publicity
had created in his mind no opinion as to the guilt or
innocence of the defendant and would not affect his
deliberations. A reading of the voir dire discloses its
thoroughness and careful inquiry as to any effect that
publicity might have had on the veniremen. We find
it without substantial fault and neither has counsel
pointed to any insufficiency or impropriety in it.
* * *” (Pet. App. A, pp. s.11-s.12.)
The Court of Appeals also evaluated the pre-trial
publicity, and stated:
“It should be emphasized that nowhere in the news
items is there any hint or suggestion that Dr. Sheppard
confessed or admitted his guilt, or any claim that he
had a criminal record or had been other than an ex-
emplary citizen, or any clear assertion that the press
18
or the police had any direct evidence of his guilt.
Comments to the press by police officials, and even
prosecutors, occasionally exceeded the bounds of pro-
priety, but they too revealed no more than that some
thought that Dr. Sheppard was guilty. In addition to
the pretrial publicity set forth in the District Court
opinion, the Cleveland papers also published items
emphasizing Dr. Sheppard’s protestatiinns of inno-
cence.” (Pet. App. A, p. s.15.)
As justification for failing to examine the trial record
on the voir dire, the District Court pointed out that in
Rideau v. Louisiana, 373 U. S. 723, 10 L. Ed. 2d 663, 83
S. Ct. 1417 (1963) the Supreme Court did not examine
the transcript of the voir dire in reaching its determina-
tion as to prejudice and held in that case that the assur-
ances of jurors on voir dire may be disregarded. But in
the Rideau case, this Court was there considering conceded
circumstances that on the voir dire, counsel for Rideau
had requested that certain jurors who later decided the
case, be excused for cause, and these challenges for cause
had been denied by the trial judge.
Mr. Justice Stewart stated in the majority opinion,
in Rideau, 373 U. S. at page 725:
“Three members of the jury which convicted him had
stated on voir dire that they had seen and heard
Rideau’s televised ‘interview’ with the sheriff on at
least one occasion. Two members of the jury were
deputy sheriffs. Rideau’s counsel had requested that
these jurors be excused for cause, having exhausted
all of their peremptory challenges, but these chal-
lenges for cause had been denied by the trial judge.”
The District Court also cited Irvin v. Dowd, 366 U. S.
717, 6 L. Ed. 2d 751, 81 S. Ct. 1639. But again, in the
Irvin case, the Supreme Court based its findings upon an
examination of the trial record and held at page 756, 6 L.
—
19
Ed. 2d, that it is the duty of the federal court on habeas
corpus to independently evaluate the voir dire testimony
of the impaneled jurors.
There was no proof presented to the District Court
by the petitioner, and the burden of proof was upon the
petitioner, that the jury that was finally impaneled by
both sides was not a fair and impartial jury as a result of
publicity before the trial. Nor do the decisions cited by
the District Court support the proposition that a court
may, on habeas corpus, as the District Court has done,
determine whether a defendant had a fair and impartial
jury impaneled, by reading the newspapers, without regard
to what the trial record shows. The court has indulged in
speculation and conjecture about the adverse effect certain
newspaper articles and headlines, occurring before the
trial, may have had upon the jury that was selected in this
case, and concludes on that basis alone, without any proof,
that the petitioner did not have a fair and impartial jury.
It must be remembered that the Mayor of Bay Village
was a close personal friend of the petitioner, as were the
police officers in Bay Village for whom he was the police
surgeon; that he was whisked off to Bay View Hospital
by his brothers without permission before the Coroner or
any of the Cleveland police officers arrived; that a pro-
tective shield was thrown around him and that the pe-
titioner and his counsel would permit no interrogation
except under their own terms and by designated friendly
officers; and that the petitioner and his counsel were ob-
structing the public authorities in what should be the nor-
mal investigation of a murder.
It seemed, at least to the newspaper editors, that cer-
tain public officials were “sitting on their hands” and
were fearful, for one reason or another, of proceeding
vigorously in the investigation as they would in any other
———
20
case. Certainly, these newspapers had a right to criticize
what they deemed to be a deliberate attempt to shield the
petitioner from interrogation, and a lack of progress on
the part of the public authorities in the investigation and
solution of this crime. It was inevitable that there would
be publicity concerning the petitioner’s unwillingness to
be interrogated save on his own terms and conditions and
that the public officials would be criticized.
Whether we or the Courts agree or disagree with the
opinions expressed by the newspaper editors is entirely
beside the point. It is pertinent to ask: What caused the
publicity before the trial, and who brought it about?
Marilyn Sheppard was murdered—thvre could be no
doubt about that—and it became the duty of law enforce-
ment officers to thoroughly investigate and to bring to
justice the person who murdered her. Much of the pub-
licity injected into the District Court’s decision occurred
months before the trial took place. The murder occurred
on July 4th and the petitioner was not brought to trial
until October 18th. A great deal of the newspaper public-
ity occurring before the trial was inspired by the lack of
cooperation of the petitioner with the authorities begin-
ning immediately after the murder of his wife was com-
mitted, by the protective shield thrown around him, and
by the strategy of his counsel who was hired within hours
after the murder. None of the publicity was deliberately
promoted by the prosecution.
Any sensational murder such as this brings forth
publicity, some more, some less, but in the circumstances
of each case, the issue before the trial court is whether a
fair and impartial jury can be obtained. The jurors who
sat in the trial of this case were all thoroughly examined
and definitely stated that they would give to the petitioner
the benefit of the presumption of innocence. They were
21
fully examined so far as defense counsel desired as to any
knowledge or information they might have of the case.
At no stage of the proceedings in the trial court or on the
appeals did the petitioner offer any evidence to prove that
any juror was in fact hostile, unqualified or prejudiced by
the publicity, and, moreover, a period of two months and a
half intervened between the day of the petitioner’s arrest
and the beginning of the trial.
The presumption is that the jurors followed the in-
structions of the court. A distrust of the jury without any
affirmative showing that they were not to be trusted in
following out the court’s instructions is what the District
Judge and dissenting judge urge.
Mr. Justice Holmes said in Holt v. United States, 218
U.S. 245, at 251 (1910), 31 S. Ct. 2, 6, 54 L. Ed. 1021:
“* * * Tf the mere opportunity for prejudice or cor-
ruption is to raise a presumption that they exist, it
will be hard to maintain jury trials under the condi-
tions of the present day * * *”
In United States v. Sorcey, 7 Cir., 151 F. 2d 899, 903
(1945), certiorari denied, 327 U. S. 794, 66 S. Ct. 821,
“0 L. Ed. 1021, the court stated:
“* * * we must not permit the integrity of the jury to
be assailed by mere suspicion and surmise; it is pre-
sumed that the jury will be true to their oath and
conscientiously observe the instructions of the court,
* oe ok?
In Opper v. United States, 348 U. S. 84, at 95 (1954),
75 S. Ct. 158, 165, 99 L. Ed. 101, the court said:
“* * * Our theory of trial relies upon the ability of a
jury to follow instructions. * * *”
In Delli Paoli v. United States, 352 U. S. 232, 242
(1957), 77'S. Ct. 294, 300, 1 L. Ed. 2d 278, the court said:
—
22
“# * * Unless we proceed on the basis that the jury
will follow the court’s instructions where those in-
structions are clear and the circumstances are such
that the jury can reasonably be expected to follow
them, the jury system makes little sense. Based on
faith that the jury will endeavor to follow the court's
instructions, our system of jury trial has produced
one of the most valuable and practical mechanisms
in human experience for dispensing substantial
justice.”
In the instant case, the prospective jurors were ques-
tioned at very great length by both counsel for the State
and the defense, and the Court. In fact, there are three
volumes of the Bill of Exceptions, totaling hundreds of
pages, setting forth such detailed examination. The fact
that prospective jurors had read something about the case
before they were sworn as jurors did not necessarily dis-
qualify them. We know of no principle of law which ex-
cludes such jurors from service merely because they had
previously read or heard something about the case. The
persons who could hear the evidence without bias or preju-
dice and could decide the issues fairly and impartially were
seated. Those who could not, were excused.
It was held in Irvin v. Dowd, supra, 6 L. Ed. 2d, at p.
756:
“It is not required, however, that the jurors be totally
ignorant of the facts and issues involved. In these
days of swift, widespread and diverse methods of
communication, an important case can be expected
to arouse the interest of the public in the vicinity, and
scarcely any of those best qualified to serve as jurors
will not have formed some impression or opinion as to
the merits of the case. This is particularly true in
criminal cases. To hold that the mere existence of
any preconceived notion as to the guilt or innocence
of an accused, without more, is sufficient to rebut the
—
23
presumption of a prospective juror’s impartiality
would be to establish un impossible standard. It is
sufficient if the juror can lay aside his impression or
opinion and render a verdict based on the evidence
presented in court. Spies v. Illinois, 123 U. S. 131, 31
L. Ed. 80, 8 S. Ct. 21, 22; Holt v. United States, 218
U. S. 245, 54 L. Ed. 1021, 31 S. Ct. 2, 20 Ann. Cas.
1138.”
The process of impaneling the jury in the Sheppard
case demonstrated that there was no unusual difficulty in
securing a fair and impartial jury. The analysis of this
process is briefly stated in the opinion of the Court of
Appeals of Cuyahoga County as follows:
“The record in this case discloses that a special
venire was called for the trial of this defendant as
provided by Sec. 2945.18 R. C. Seventy-five names
were drawn from the jury box. Of this number, 11
were immediately excused for justifiable reasons or
were not found, and could not be summoned (three in
number) by the sheriff. Of the remaining 64, 13 were
excused because they had formed a firm opinion as to
the guilt or innocence of the accused and 10 were
likewise excused because they were opposed to capital
punishment. Sixteen others were excused for cause.
“The State used four peremptory challenges and
the defendant five. As is provided in Sec, 2945.21 the
State in a homicide case where there is but one de-
fendant, is entitled to six such peremptory challenges
and the defendant a like number so that when the
jury was sworn, the defendant left the right to one
peremptory challenge unused. From the foregoing
analysis of the venire of 75 electors called in this
case, four of those called were not needed in impanel-
ing a jury of 12. Such jury was selected as provided
by law and sworn and accepted by the defendant to
well and truly try and true deliverance make between
the State and the defendant.
—
24
“The parties agreed to select two alternate jurors
as provided by Sec. 2313.37 R. C. The four remaining
jurors of the original list, together with an additional
venire of 24 summoned as provided by law, were
used for this purpose. Of the 24 summoned, eight
were called and questioned together with the four
from the original venire, in impaneling the two alter-
nate jurors. Of those examined, three were excused
for holding a firm opinion of the guilt or innocence
of the accused, four were excused as being against
capital punishment, one was excused on challenge
for cause and each side used one peremptory chal-
lenge. (Each side had the right to excuse two pro-
spective alternate jurors peremptorily under the pro-
visions of Sec. 2313.37 R. C.)
“The analysis of the impaneling of the jury in this
case where but 16 prospective jurors out of 72 ex-
amined could not sit because they had prejudged the
guilt or innocence of the accused, clearly shows that
there was no difficulty whatever in impaneling a fair
and impartial jury.” (R. pp. 60a-61a.)
No matter when or where tried, the Sheppard case
would have attracted widespread publicity. This was in-
herent in the very nature of the case itself. The right to
grant a change of venue lies in the sound discretion of the
trial court. The trial court stated on the motion for new
trial in ruling on the denial of the motion for change of
venue and/or for a continuance:
“(3) Denial of change of venue requested by de-
fendant. The request, when made, was based upon
the claim that extraordinary public attention centered
upon the case in this county by the various media of
news made the securing of a fair and impartial jury
in this county impossible. It is a matter of common
knowledge that the case commanded that same at-
tention throughout Ohio and the United States of
America. It commanded very much attention through-
GLE LELGOLLEE LONELINESS ntl
25
out the free world. Chief counsel for the defense con-
ceded and asserted this to be a fact and stated fer-
vently that the defendant could not have a fair trial
in Ohio, or even in the United States. The only con-
clusion from that assertion must be that the defend-
ant cannot be tried at all on an indictment for Murder
in the First Degree. Such a claim furnishes its own
answer.
“Seldom indeed has there been a case about which
the average citizen was so confused by the published
stories, or more uncertain about what the facts ac-
tually were. Wiih present-day means of communica-
tion the same precise stories were simultaneously
published in every city and county in the State and it
certainly will not be denied that Cuyahoga County
is the most liberal county in the State and, as a result,
the best in which to conduct a trial involving a much
publicized charge of crime, whatever its nature. It is
to be borne in mind that no issues which break into
flames and which tend to produce passion and prej-
udice were involved in this cause. No issue of race,
corruption, killing an officer, or the like, was in-
volved—what actually was involved was a mere mys-
tery—a ‘whodunit.’ The only safe and sure way to de-
termine whether a fair and impartial jury can be se-
cured is to proceed to impanel one. The court re-
served ruling on the motion pending such an effort
aud became convinced, and is still convinced, that an
intelligent, sincere, patriotic and fair jury was impan-
eled. Upon that being accomplished the court over-
ruled the motion and believes such action was not
error. Section 2945.06 Revised Code of Ohio provides
that a person charged in a case such as this may waive
trial by jury and elect to be tried by a panel of three
judges. While not challenging the right of a defend-
ant, in a proper case, to a change of venue it does
seem that the lack of confidence in any jury anywhere,
coupled with the failure to elect to be tried by a panel
of three judges, smacks of objection to any trial at all.
(Emphasis ours. )
26
“(4) Error in denying application for continuance.
The crime charged in the indictment occurred on July
4. Trial started October 18. Defendant’s counsel had
been engaged and active from a time within hours fol-
lowing the crime and long before defendant’s arrest.
Seventy-five prospective jurors had been summoned
with full knowledge of all counsel long before any
application for continuance was filed. The only ground
stated for a continuance was ‘to permit the extraor-
dinary publicity to quiet down.’ It was not claimed
that counsel were not prepared for trial nor was any
suggestion made as to who was going to ‘quiet down’
the publicity, nor when or how.” (R. pp. 35a-36a.)
As stated in the opinion of the Supreme Court of
Ohio on this case:
“At the vonclusion of the impaneling of 12 jurors,
the motion for change of venue was renewed (for the
third time), at which time, in overruling the motion,
the trial court said:
‘That the best evidence in the world is the effort to
select a jury, and what we get here is a picture that
has taken almost two weeks of time. The court is
thoroughly satisfied that we have a fair and impar-
tial group of people to try this case, and I doubt if
under any conditions at any time anywhere in this
state you could have a better looking group of peo-
ple and a more intelligent group of people, as a
whole, to try a case of this kind, and the court is
thoroughly satisfied that they are a group of fair
and impartial people who can properly try this case
under the guidance of the court, and I hope he
will be able to give them that in the manner that
it ought to be given.’
“The same motion, advanced for the same reason,
was renewed on five other occasions during the trial,
and the trial court in each instance overruled the mo-
tion.
—7—_—
27
“We believe the trial court was justified in those
rulings. In Townsend v. State, 17 C. C. (N. S.), 380,
25 C. D. 408, affirmed without written opinicn in 88
Ohio St. 584, 106 N. E. 1983, it is said:
‘The examination of jurors ou their voir dire affords
the best test as to whether or not prejudice exists
in the community against the defendant; and where
it appears that the opinions as to the guilt of the de-
fendant of those called for examination for jurors
are based on newspaper articles and that the opin-
ions so formed are not fixed but would yield readily
to evidence, it is not error to overrule an applica-
tion for a change of venue.’
“For example, in Richards v. State, 43 Ohic App.
212, 183 N. E. 36, it was held that the exercise of the
right to order a change of venue lies in the trial court’s
discretion, and that a refusal to order a change of
venue without prejudice until it can be determined
whether a fair and impartial jury can be impaneled is
not an abuse of discretion. See also, Dorger v. State,
40 Ohio App. 415, 179 N. E. 143; State v. Stemen, 90
Ohio App. 309, 106 N. E. (2d) 662; State v. Deem,
154 Ohio St. 576, 97 N. E. (2d) 13.
“If the jury system is to remain a part of our
system of jurisprudence, the courts and litigants must
have faith in the inherent honesty of our citizens in
performing their duty as jurors courageously and
without fear or favor. Of the 75 prospective jurors
called pursuant to this venire only 14 were excused
because they had formed a firm opinion as to the guilt
or innocence of the defendant. A full panel was ac-
cepted before this venire was exhausted, and defend-
ant exercised but five of his allotted six peremptory
challenges.
“In the light of these facts, and particularly in the
light of the fact that a jury was impaneled and sworn
to try this case fairly and impartially on the evidence
and the law, this Court cannot say that the denial of
28
a change of venue by the trial judge constituted an
abuse of discretion.” (R. pp. 110::-i11a.)
There were no unusual compelling circumstances in
the Sheppard case requiring a disregard of the assuranves
of the jurors on the voir dire. The petitioner did not con-
fess to the crime as was done by the defendant in the
Rideau case, nor is there any showing in the instant case
that any juror sat on the trial who was unqualified or
unaccepted by the defense, as was the situation in Rideau.
It is argued in the petitioner’s brief that the decisions
rendered by this Court in Rideau v. Louisiana, supra, and
Irvin v. Dowd, supra, are applicable to the case at bar, be-
cause “a confession claimed publicly to be hidden can be
every bit as damaging to an accused facing trial as a con-
fession claimed to have been articulated.” (Pet. Br. p. 28.)
We don’t follow that argument. How can a public hidden
confession be made? Here again, counsel] for the petitioner
attempts to give an opinion and an interpretation as to the
meaning of newspaper articles which were not received
in evidence on the trial of this case. And there was no
confession in this case, either public or hidden.
Further, the instant case is not comparable with Irvin
v. Dowd, supra, upon which the istrict Court relied. In
the Irvin case, the prosecutor and police officials issued
press releases stating that the defendant had confessed to
six murders. At the trial, the jury panel consisted of 430
persons; 268 of these were excused for cause as having
fixed opinions as to the guilt of the petitioner; and 8 of the
12 jurors who finally served on the jury admitted on voir
dire that they thought petitioner was guilty.
And there is no comparison of the facts in Irvin,
supra, to the facts surrounding the selection of the jury in
the Sheppard case. None of the pre-trial newspaper articles
in the instant case contain any releases from the prose
_
29
cuting authorities that the petitioner confessed. In fact,
the petitioner garnered a great deal of publicity before
the trial, minimizing any part he may have had in the
commission of the murder. Time and again statements
were made by the petitioner to the newspapers or on his
behalf, declaring him innocent in the clearest and most
positive terms.
Omitted from the selection by the District Court of
pre-trial newspaper publicity, is the amount of publicity
put out by the defense prior to the trial. Innumerable
stories appeared emanating from the petitioner, his coun-
sel, his relatives and his friends, minimizing any claim
that the petitioner may have committed the murder.
Ignored by the District Court in selecting certain news-
paper articles upon which to reverse this conviction, were
numerous articles that were favorable to the petitioner,
published both before and during the trial, such as the
following:
The headline on the front page story in the Cleveland
News of July 9, 1954, by Severino P. Severino, News Staff
Writer, who, as he states, was granted permission to
question Dr. Sam in the presence of his father, Dr. Richard
A. Sheppard, and his attorneys, William J. Corrigan and
Arthur Petersilge. The headline in large type reads:
“EXCLUSIVE! ‘I LOVED MY WIFE—SHE LOVED
ME,’ SHEPPARD TELLS NEWS REPORTER.”
Nor did the District Judge list the headline in the
Cleveland Press of August 18, 1954, reading: “DR. SAM
WRITES HIS OWN STORY.” Under the headline appeared
the text of a statement by Dr. Samuel H. Sheppard, fur-
nished the Press by a member of his family, and above the
headline is an enlarged photograph of the last paragraph
of the statement, followed by the signature of the defend-
ant, and reading:
———
30
“I AM NOT GUILTY OF THE MURDER OF MY
WIFE, MARILYN, HOW COULD I, WHO HAVE
BEEN TRAINED TO HELP PEOPLE AND DE-
VOTED MY LIFE TO SAVING LIFE, COMMIT
SUCH A TERRIBLE AND REVOLTING CRIME?”
Nor does the District Judge list the headlines of the
statements issued by Attorneys William J. Corrigan and
Fred W. Garmone, such as the one appearing in the Cleve-
land Press of August 27, 1954, reading:
“SHEPPARD LAWYERS HIT STORIES ON MUR-
DER.”
followed by the text of the long statement so issued.
The District Judge also might have included other
headlines as follows:
July 8, 1954, The Cleveland Press:
“DR. SHEPPARD’S STATEMENT ISSUED TO AN-
SWER GOSSIP.”
July 8, 1954, The Cleveland Plain Dealer:
“BAY DOCTOR TALKS TO REPORTER”
July 8, 1954, The Cleveland Press:
“HUSBAND PUTS $10,000 UP FOR SLAYER”
July 9, 1954, The Cleveland Plain Dealer:
“TEXT OF DOCTOR’S STATEMENT ON HIS OFFER
OF REWARD”
July 9, 1954, The Cleveland Plain Dealer:
“DOCTOR WILL HELP IN HUNT FOR DEATH
WEAPON TODAY”
July 10, 1954, The Cleveland News:
“HONORED ATHLETE AT HEIGHTS HIGH”
July 12, 1954, The Cleveland Press:
“DR. SHEPPARD RETURNS TO BAY VIEW HOS-
PITAL TO TREAT HIS PATIENTS”
31
July 15, 1954, The Cleveland News:
“DRUNK, ‘CONFESSES’ BUT STORY FIZZLES”
July 17, 1954, The Cleveland Press:
“DR. SHEPPARD TELLS PRESS ‘KILLER WILL BE
CAUGHT.’”
(Then follows responses to 11 questions. )
July 31, 1954, The Cleveland Press:
“TEXT OF STATEMENT BY CORRIGAN AFTER AR-
REST OF CLIENT, DR. SAM”
July 31, 1954, The Cleveland News:
“POLICE CORDIAL, POLITE AS THEY TAKE SHEP-
PARD”
August 13, 1954, The Cleveland Plain Dealer:
“FAMILY POINTS TO BAY MAN AS NEW SUS-
PECT AS HOVERSTEN TALKS”
August 19, 1954, The Cleveland Press:
“DR. SAM IS ANXIOUS TO TAKE STAND, HIS
BROTHER SAYS”
September 14, 1954, The Cleveland News:
“BATTLES PROWLER IN BAY. CORRIGAN LINKS
BOY’S STORY WITH SHEPPARD CASE”
September 17, 1954, The Cleveland News:
“DR. STEVE HITS ‘RED HERRING’ ACCUSATION”
October 19, 1954, The Cleveland Press:
“WRITER FINDS DR. SAM’S LOOKS BIG ASSET
FOR ACTOR CORRIGAN”
October 21, 1954, The Cleveland Press:
“DR. SAM JUST LIKE A BROTHER, 2 SISTERS-IN-
LAW SAY AT TRIAL”
October 22, 1954, The Cleveland Plain Dealer:
“CORRIGAN RATED SECOND DARROW”
mee ——
32
October 25, 1954, The Cleveland Plain Dealer:
“OTHER SIDE OF CORRIGAN LIES IN POETRY”
(With picture of W. J. Corrigan and his writer
daughter)
October 26, 1954, The Cleveland Plain Dealer:
“COURT PSYCHOLOGISTS SEE TRIAL CROWD AS
NORMALLY CURIOUS”
October 26, 1954, The Cleveland Press:
“SAM, WOMAN JUROR SOB IN COURT”
October 27, 1954, The Cleveland Press:
“CITY CHEMIST AIDS DEFENSE OF DR. SAM”
October 28, 1954, The Cleveland Press:
“JUROR OUT, ADMITS SHE WAS FOR SAM”
November 4, 1954, The Cleveland News:
“LETTERS WRITTEN IN JAIL BARE SHEPPARD
FEELINGS”
November 5, 1954, The Cleveland Press:
‘DR. SAM SAYS AUTOPSY BUNGLED”
November 9, 1954, The Cleveland Plain Dealer:
“CORRIGAN MUSES ON TRIAL’S DRAMA”
November 10, 1954, The Cleveland Press:
“GARMONE QUIZZING WILTS MAYOR HOUK”
November 11, 1954, The Cleveland News:
‘“HOUKS HELP DR. SAM AS MUCH AS THEY
HURT”
November 11, 1954, The Cleveland News:
“DEATH HOME OPENED TO DR. SAM’S KIN”
November 13, 1954, The Cleveland News:
“CORRIGAN’S STRATEGY SCORES”
November 15, 1954, The Cleveland News:
“CORRIGAN HAMMERS AT DRENKHAN”
ERATOR eR z OARS
33
November 16, 1954, The Cleveland News:
“CORONER IS VILLAIN OF CORRIGAN PIECE”
November 17, 1954, The Cleveland News:
“DR. STEVE HITS PRINT THEORY; SAYS BLOOD
FLOWED INTO FOLD”
November 17, 1954, The Cleveland Press:
“DR. SAM WRITES TO HIS SON”
(Photo of Letter)
November 18, 1954, The Cleveland News:
“DR. SAM DISPLAYS NO-WEAPON THEORY”
(With picture demonstration)
November 19, 1954, The Cleveland Plain Dealer:
“DR. STEVE’S TIP IS EX-PATIENT”
November 19, 1954, The Cleveland News:
“ORDERED HOVERSTEN OUT, DR. STEVE SAYS”
November 19, 1954, The Cleveland Press:
“SEEK STEVE’S ‘SUSPECT’ IN DETROIT”
November 20, 1954, The Cleveland Press:
“SHOTTKE AIDED SAM: DR. STEVE”
November 22, 1954, The Cleveland Plain Dealer:
“PROBE NEW BAY TIP; DETROIT MAN CLEAR”
November 22, 1954, The Cleveland News:
“SLAYING ‘SUSPECT’ IS WRITTEN OFF”
December 2, 1954, The Cleveland News:
“EVIDENCE CHANGED: DR. STEVE”
December 4, 1954, The Cleveland News:
“CHIP PAYS CALL ON STORE SANTA”
December 7, 1954, The Cleveland News:
“DR. SAM THANKS REPORTER”
It is not a fact that the petitioner was forced to testify
at the inquest (Pet. Br. p. 29). The record shows that the
iy
34
petitioner testified voluntarily (Tr. 6331). The record also
shows the reason for searching the petitioner at the in-
quest. The police had information that the petitioner was
carrying a gun after the funeral of his wife (Tr. 6803).
The petitioner had not been charged with any crime
at the time of the inquest, but had been claiming up to that
time that he had not done anything to cause the death of
the victim. The inquest was therefore held to find out if
anyone had any information as to the manner in which
and the means by which the victim had been killed, or any
information as to the circumstances involving the violent
death.
Sec. 313.17 of the Revised Code of Ohio provides that
“The coroner may issue subpoenas for such witnesses as
are necessary, * * * and proceed to inquire how the
deceased came to his death, whether by violence to self or
from any other persons, by whom, whether as principals or
accessories before or after the fact, and all circumstances
relating thereto.”
Ignored entirely is the testimony of Dr. Gerber that
he had made arrangements for the inquest and had actually
issued subpoenas before the Press editorial appeared, and
that the reason it was held in Bay Village was that most of
the witnesses lived there and it would be convenient.
Untold is the fact that the hearing at the inquest was
in perfect order during the testimony of the petitioner, his
parents, his brothers, the doctors, Don Ahern and Nancy
Ahern, Mayor and Mrs. Houk and the Bay Village officers.
There was no disorder until the last few minutes of the last
day of the public hearing when Dorothy Sheppard was re-
called to testify further. It was brought about by Mr. Cor-
rigan, counsel for petitioner, who sought to direct the re-
porter to insert certain matters into ‘he record. Mr. Cor-
rigan was told not to do so and was cautioned that if he
- SE RL OF gE Pe IRS 3 2 sasptaec .
_ ae
eee eer eee
35
persisted, he would be asked to leave. He not only per-
sisted, but ordered the reporter to make the insertions in
the record, refused to desist when so requested, refused to
sit down when so requested and challenged the authority
of the Coroner to put him out. The Coroner had no alter-
native and was obliged to have Mr. Corrigan removed from
the hearing room.
This occurred within a few minutes before the close
of the hearing. Furthermore, the inquest was held on July
22d, 23d and 26th and there was at that time no indictment
against the petitioner. The disturbance at the inquest
which Mr. Corrigan created has no possible bearing on the
trial of this case, nor did it prevent the petitioner from
having a fair and impartial jury.
On the claim that publication of the names of the
veniremen in advance of the trial prejudiced the petitioner,
there is no showing that the veniremen were approached
by any agents for the state or on its behalf prior to trial, or
by anyone else for that matter.
And of a certainty, there is no proof in the record, nor
was any affirmative proof presented to the District Court
by the petitioner, no “demonstrable reality,” that the jury
selected in this case was not a fair and impartial jury, or
that the publicity before trial influenced the jurors who
were finally selected by both sides on the two-week search-
ing voir dire examination. The District Court’s finding to
the contrary is merely a matter of speculation, with no
basis in fact. —
B. Publicity During Trial.
The District Judge should have become acquainted
with the facts as reflected in the record, showing who was
largely responsible for the publicity during trial. Certainly,
there is no evidence that either the trial judge or the
enroren toe a ——
36
prosecution were trying the case in the newspapers. Dr.
Steve Sheppard, petitioner’s brother and a prospective
witness, so persisted in trying to have the petitioner’s case _.
tried in the newspapers that the trial court was required to
admonish him that if he did not desist, he, being a witness,
would be excluded from the courtroom (Tr. 3722). This
all took place in the Court’s chambers just before the Con-
sidine broadcast was brought to the attention of the court,
and the Court said:
“Let it be now understood that if Dr. Steve Sheppard
wishes to use the newspapers to try his case while we
are trying it here, he will be barred from remaining
in the court room during the progress of the trial if he
is to be a witness in the case.” (Tr. 3722.)
The petitioner's brother was making uncomplimentary
remarks to the news media about the testimony of the
State’s witnesses (Tr. 3722).
During the trial most of the publicity was given out
by the defense. Petitioner had a former newspaperman as
one of his counsel, and as a former newspaper man, defense
counsel knew very well how to get favorable stories in the
public press. He held press conferences daily, and fre-
quently more than once each day; and, with his client,
posed for hundreds of pictures which, together with favor-
able personal stories, appeared in all types of news media.
The amount of publicity so put out by the defense was
enormous, and far outshadowed any attention given the
State. Defense counsel found that by continually denounc-
ing the newspapers and public officials, he could get an
even greater amount of publicity. Mr. Corrigan’s skill in
the art of publicity is demonstrated by the innumerable
stories that appeared, emanating from the petitioner, his
counsel, his relatives and his friends. The bales of news-
papers offered by the defense in support of their motions
a Ne ? PRL EET EE RRR
37
for a change of venue show these favorable personal stories
and the innumerable photographs for which the petitioner
and his counsel posed.
That the objection made for the record to the taking
of photographs was without justification and mere pretense
is proved by the testimony of Julian Wilson during the
hearing on the motion for new trial. Mr. Wilson was a
photographer for the Associated Press, assigned to this
trial, and testified on the motion for new trial that he made
many pictures of Dr. Sam Sheppard and considerably over
x hundred of Mr. Corrigan (Tr. 7088). His testimony
speaks for itself:
“Q. Now, did you take any pictures in this Court
room while the court was in session?
A. No, sir, I did not.
Q. Now, while the court was not in session, dur-
ing recess or after adjournment, did you take pictures
in this Court room and around this building?
A. Many times.
Q. Did you take pictures of Mr. Corrigan?
A. Yes, sir.
Q. About how many times?
A. Roughly—it would run considerably over a
hundred negatives.
Q. About a hundred negatives. And of Dr. Sam
Sheppard?
A. I made many pictures of him.
Q. And Mr. Garmone?
A. He, too, I have made many pictures of.
Q. Now, did Mr. Corrigan ever object to your
taking any of these pictures?
A. A few times he has objected.
Q. When was that?
A. About the middle of the trial or towards the
end of it, Mr. Corrigan—we were instructed that Mr.
Corrigan didn’t want any pictures made of himself,
the defense, or the defendant.
se me 2 TY
38
Q. How many pictures had you taken without
his objection before you received those instructions?
A. Oh, many.
Q. More than 50?
A. Id think so.
Q. And after you received the instructions, did
you stop taking pictures?
Yes, sir.
And how long did that continue?
About a week and a half, two weeks.
Then what occurred?
We asked Mr. Corrigan’s permission.
And did you get it?
Yes, sir.
And then resumed taking pictures?
Yes.
. How many pictures did you resume taking—
did you take after you resumed taking those pictures?
A. I'd say not as many as before because we
didn’t need as many pictures.
Q. More than 20 or 25?
A. About that.
Q. Now, with respect to the defendant, Dr. Sam
Sheppard, is the number of pictures that you took
before the objection by Mr. Corrigan about the same
as what you took of Mr. Corrigan?
A. About, yes.
Q. You took about 50 before. Then there was this
period when you didn’t take any pictures because of
the objection, is that correct?
A. That’s true, sir.
Q. And then did you later resume?
A. Yes, sir.
Q. With whose permission?
A. Well, when we got Mr. Corrigan’s permission,
we resumed taking pictures.
Q. And about how many did you take after you
got p2rmission?
A. Somewhere around 15, 20, 25.
* * *
OPOrOrOpOp
39
Q. Did you ever take a picture of either Dr. Sam
Sheppard or any of his counsel over their objection?
A. No, sir.
* * *
The Court: May I have just one question?
Were you present at the conference which the
Court had with photographers prior to the opening
of the case?
The Witness: Yes, sir, I was.
The Court: And at which the Court stated
what the rule would be as to taking pictures during
the trial?
The Witness: I was.
The Court: Do you recall what that was as to
taking pictures within the court room and of the
defendant and his counsel?
The Witness: Yes, I do recall.
The Court: All right. State it.
The Witness: Your ruling, sir, was that no
pictures would be made at any time when the court
was in session, and you also requested that we
make no pictures of the defendant or the defense
or anyone without their permission. I believe that
is the gist of the thing.
The Court: That’s correct.” (Tr. 7087-7091.)
It is obvious from the record that objections by the
defense to the newspaper publicity were quite pro forma
and mere pretense.
On the voir dire, at the outset, the court instructed
the prospective jury that the defendant was presumed to
be innocent unless and until he was found by a jury to be
guilty of the crime beyond a reasonable doubt and that
finding was to come, not from anyone’s notions or outside
information, but must come on the basis of testimony
heard from the witness stand (Tr. 31). The prospective
jury were further instructed that they were not to discuss
this case or any feature of it with anyone; that they were
40
not permitted to have anyone speak to them about it; that
they were not to remain anywhere where other people
were speaking of it among themselves; and that they were
not to speak of it among themselves (Tr. 35). The prospec-
tive jury were also questioned concerning newspaper
articles and radio broadcasts and whether they would be
influenced or swayed by anything anybody said outside of
the court room (Tr. 167-168, 214).
The prospective jury were also questioned as to
whether they would consider the question of the guilt or
innocence of the defendant solely on the basis of the evi-
dence that was received in the courtroom from the witness
stand (Tr. 236). And they were further questioned as to
whether they would follow the instructions of the court
not to read anything about the case in any of the news-
papers and not to listen to any discussion of the case on
the radio or television (Tr. 279).
The court said to the jury at Record 1452:
“A fair and an impartial juror is a juror who can sit
here patiently and who can listen to all of the evi-
dence that is produced in a case and to the instruc-
tions of the court as to the law applicable to the
particular case, and who can honestly close out the
rest of the world for the moment and bring a curtain
down on all information he may have about the mat-
ter from other sources, and be guided entirely by the
evidence and the instructions of the court as to the
law applicable to the particular case” (Tr. 1452).
And when the jury was impaneled, the court in-
structed the jury not to talk about the case to anyone; not
to permit anyone to talk to them about it; not to remain
anywhere where other people were talking about it them-
selves, in the jury room or elsewhere; that it was each
one’s duty as an individual juror and responsible citizen
to keep his own counsel, to listen to the evidence that came
—
41
from the witness stand and the instructions of the court
as to the law, and wait until all those are complete before
they formed any opinion or judgment whatever as to the
outcome of the case, which opinions and judgments were
to be expressed only in the jury room after the case was
finally submitted to them for deliberation and decision.
The jury were further told by the court that during the
pendency of the trial, they were not to listen to comments
about it over the radio or otherwise and not to read the
newspapers (Tr. 1591). The court said: “You will get here
the only facts that you are to consider in the determination
of this case” (Tr. 1592).
Each juror had agreed that he or she would disregard
everything other than the evidence received in open court
and would, in conformity with the instructions of the
court, render a fair and impartial verdict. The jurors took
the oath required by law and there is not a shred of evi-
dence in the record, nor was there any affirmative proof
before the District Court that each and every juror did not
fully and completely abide by the oath so taken.
There is not a particle of evidence in the record or
before the District Court to show that the jury was in any
way influenced by reports or stories in the newspapers or
over the radio, or anything else, or that the jury or any
juror was biased or prejudiced by any such stories or
broadcasts.
Although several jurors were subpoenaed and were
interrogated by defense counsel on the hearing on the
motion for new trial, not a word of testimony was pro-
duced to justify the claim that the jurors were influenced
by anything other than the evidence produced in open
court in reaching their verdict. The District Court’s find-
ing that publicity during the trial prejudiced the petitioner
is based upon mere speculation and suspicion, with no basis
Dee’
4
——
42
in fact. Certainly, it is not supported by the record. A fair
and objective analysis of stories to the public will disclose
that they made no effort to slant the stories, certainly not
to influence the jury in arriving at their verdict. Nor is
there any proof whatsoever offered by the petitioner that
the jury was influenced by anything other than the evi-
dence produced in court in reaching its verdict.
The District Court held that the trial judge com-
mitted error when he failed to question the jury regarding
the Robert Considine broadcast. This incident was before
this Court for consideration in the former petition. Urged
for the first time in the Supreme Court of Ohio by the de-
fense, as error, was the refusal of the trial court on motion
for continuance in the 5th week of trial to ask the jurors
if they heard a broadcast by Bob Considine over Station
WHK in which there was something said about the Shep-
pard case. This matter was brought up in the court’s
chambers and neither the court nor the prosecutors had
any knowledge whatsoever of the alleged broadcast. Mr.
Corrigan, counsel for the petitioner, complained that Bob
Considine had paralleled a denial of the petitioner as set
forth by Officer Schottke with a denial of Alger Hiss when
he was confronted by Whittaker Chambers, without stat-
ing that Dr. Sheppard was in bed in the hospital at the
time of his denial, while Mr. Hiss was strong, mentally and
physically.
Apart from this assertion of counsel, no proof what-
ever was submitted to the court as to the exact nature of
the broadcast, although Mr. Considine was available, it
being conceded by the defense that he was in daily attend-
ance at the trial. When the court stated: ‘We are not go-
ing to harass the jury every morning,” Mr. Corrigan then
responded, “I can’t help it, Judge. If you don’t that’s all
right with me. I make my exception.” (Tr. 3725.)
mn ae
43
That it was not error for the court to refuse to inter-
rogate or poll the jurors during the trial as to whether
they had read a newspaper article or heard a radio broad-
cast such as the Considine broadcast, is affirmed by the
annotation in 15 A. L. R. (2) 1152, wherein it is stated:
“The present annotation is concerned with the
question of whether, during a criminal trial, the
jurors may be interrogated or polled as to whether
they have read newspaper articles pertaining to the
alleged crime or the trial. As the title indicates, the
annotation involves the propriety of interrogation or
polling after impanelment, as distinguished from that
which occurs on voir dire examination.
“The few cases that involve this specific point all
uphold the trial court where it refuses to interrogate,
or refuses to let a party interrogate, the jurors as to
the reading of newspaper articles relating to the trial
or the crime. The decisions generally turn on the fact
that the trial court had instructed the jury not to read
the articles or that there had been no showing by the
moving party that the jurors had in fact read them.”
Whatever the news media, whether it be newspapers or
radio broadcasts, the same principle should apply. As
stated in Trombley v. Langlois (R. I.), 163 A. 2d 25
(1960):
“An impartial trial is one in which jurors reach a
verdict upon a consideration of only those matters
that were introduced in evidence during the trial and
matters not so introduced, should not be brought to
their attention through an interrogation of the jury to
determine whether they have knowledge of allegedly
prejudicial material published in the newspapers.”
In State v. Hilliard, 89 Arizona 129, 359 P. 2d 66
(1961), it was held that the granting of the defendant's
request for interrogation of jurors during trial as to
whether they had read newspaper accounts, rested in the
ne mg
44
sound discretion of the trial court and refusal to permit
poll was not error.
It was held in Ford v. U. S., 233 F. 2d 56 (C. A. 5th
Tex.) (1956) that it is within the discretion of the trial
court, whether after impanelment during criminal trial,
the jurors may be interrogated as to whether they had read
newspaper articles. Refusal of trial judge to permit inter-
rogation of jury regarding article was not error, where
court instructed jury at beginning of trial not to read “any
stories in the newspapers about the case.”
The District Court comments that during the trial
there was a broadcast by Walter Winchell in which he
related the story of a woman in New York who claimed
she had been a mistress of Sam Sheppard (R. p. 450a).
This incident was referred to in the previous petition. At
the request of defense counsel, the court inquired of the
jurors whether they had heard the Winchell broadcast and
two jurors responded that they had. The jurors had no
knowledge that Mr. Winchell was to broadcast anything at
all pertaining to the Sheppard case or to Sam Sheppard.
The two jurors who heard the broadcast were asked by the
Court: “Would that have any effect on your judgment?”
Both answered, “No.” The Court stated:
“Have any of you, other than these two ladies, heard
anything about that broadcast last night? And I wish
to ask you two ladies in particular, and all of you in
general, to pay no attention whatever to that kind of
scavenging. It has no place, in my judgment, on the
air at all, but that is not for me to determine, but
surely it has no place whatever in our thinking or
considerations or thoughts in any way, shape or man-
ner in this case. Let’s confine ourselves to this court
room, if you please.” (Tr. 5429-5430.)
Upon the hearing on the motion for new trial and even
though several of the jurors had been subpoenaed, the de-
+ een " “ mE, SR OUTER Roe phe ay gape cag
LIES ENTE EI EN TOOT OLESEN LELE ELE Ee ET —
45
fense, though afforded an opportunity to interrogate the
jurors, produced not a word of testimony to support their
claim that the jurors heard the Considine broadcast. There
is in the record no proof that any of the jurors were in-
fluenced by this broadcast or the so-called Winchell broad-
cast, or by anything else other than the evidence produced
in open court.
The Court of Appeals stated:
“The presumption that obedient to instructions,
the jurors ignored publicity duzing the trial has not
been overcome by petitioner. The only showing that
any of them encountered any of this publicity came
when the trial judge questioned the jurors about a
Winchell broadcast during the trial attributing mari-
tal infidelity to Dr. Sheppard. Two jurors advised
that they had heard the broadcast, but would not be
influenced by it, and an appropriate admonition on
the subject was given by the judge. Defense counsel
also requested interrogation of the jury as to their
knowledge of another broadcast in which one Consi-
dine made remarks derogatory to Dr. Sheppard. The
trial judge refused this request, observing that he
did not think the jury should be harassed with inter-
rogation each morning. We believe that this action
was itself within the discretion of the judge, and that it
may indeed have been the best thing to do. A discreet
judge might well conclude that repetitive reference
and inquiry as to matters prejudicial to the defense
would harm rather than help. A substantial number
of lawyers skilled in the art of advocacy would, we
think, agree. Compare Estes v. United States, 335 F.
(2) 609, 615 (CA 5, 1964), cert. denied, 379 U. S.
964 (1965); United States v. Provenzano, 334 F. (2)
678, 696 (CA 3, 1964), cert. denied, 379 U. S. 947
(1964) ; Ford v. United States, 233 F. (2) 56, 61-62
(CA 5, 1956), cert. denied, 352 U. S. 833, 1 L. Ed. (2)
93 (1956). In any event, any effect that this limita-
a
46
tion of interrogation during trial might be thought
to have is dissipated by the opportunity accorded de-
fense counsel to interrogate jurors on their motion for
a new trial. Three of the jurors were thus questioned,
but counsel did not see fit to inquire into possible con-
tact with trial publicity.” (Pet. App. A, pp. s.29-s.30.)
Reference is made to publicity of the family of Juror
Lois Mancini. This incident was considered by this Court
in the former petition. Furthermore, Lois Mancini was not
present during the visit of the reporter and did not par-
ticipate in the interview. We wish to also note that she
was merely an alternate juror and did not participate in
the deliberations or the verdict.
It is claimed that the trial court had a duty sua sponte
to sequester the jurors. There is no requirement under the
laws of the State of Ohio that a jury be sequestered during
the trial. In fact, the Ohio statute makes it a matter of
discretion on the part of the trial court. Section 2945.31
of the Revised Code of Ohio provides:
“After the trial has commenced, before or after the
jury is sworn, the court may order the jurors to be
kept in charge of proper officers, or they may be per-
mitted to separate during the trial. If the jurors are
kept in charge of officers of the court, proper arrange-
ments shall be made for their care, maintenance, and
comfort, under the orders and direction of the court.
In case of necessity the court may permit temporary
separation of the jurors.”
With the trial lasting over two months, there is no showing
that the trial court abused its discretion, nor was there any
request by the defense that the jury be sequestered during
the trial. To keep the jurors from their families for that
length of time would have imposed an unnecessary hard-
ship upon the jurors. Further, the fact is that there is no
affirmative evidence, nor did the petitioner offer any proof,
47
and the District Court points to none, that any juror read
any of the alleged prejudicial newspaper publicity during
the trial, contrary to the instructions of the trial court.
No claim was made by the defense in the state courts
or on certiorari that the trial court abused its discretion in
not sequestering the jury during the lengthy trial. Again,
whether a jury should be sequestered is a matter of state
legislation giving the trial court discretion.
Defense counsel in the instant case could have objected
to any sequestration of the jury. The Court of Appeals
pointed out:
“* * * We cannot speculate now whether able defense
counsel would have welcomed such a procedure, or
whether long insulation and confinement of a jury
trying a first degree murder case might be thought
more likely to lead to conviction and a death penalty
than permitting the jury the relaxation and refresh-
ment of living at home, even with the possible ex-
posure to extracurial publicity.” (Pet. App. s.9.)
The Trial Court stated on the hearing on the motion
for new trial:
“While this Court would not for the world mini-
mize the importance of guarding this jury—or the
jury in any other case—from annoyance or influence,
he must express the thought that human beings,
whether serving as jurors or not, cannot be wrapped
in cellophane and deposited in a cooler during trial
and deliberation.
“The jury in the instant case was jealously
guarded throughout the entire proceedings and it is
worthy of note—and indeed decisive in this Court’s
judgment, that not a suggestion of influence upon the
jury is. forthcoming from any person or agency. In-
terference or influence must be the test. If we are to
convict jurors without a scintilla of evidence of un-
due influence on them, it is now pertinent to halt and
48
ask ourselves what becomes of our faith in our de-
cent fellow-citizens and of what value is the jury
system at all.
“It is claimed that the jurors were permitted to
separate on one or two occasions within the period of
their deliberations and were so photographed. Fore-
man Bird and Bailiff Francis testified that the so-
called separation of jurors was merely their momen-
tary division in the dining room of the hotel for the
purpose of photographing the men in one group and
the women in the other. It was in the presence of the
two bailiffs, was only a few feet in extent and there
was no communication of any kind with the jury by
the photographer. To term such a petty detail a ‘sep-
aration’ is stretching the imagination to a dangerous
point. It certainly is not the separation prohibited by
law and is hardly worthy of serious thought or com-
ment.
“The Court had complete confidence in the jury
in this case; it was protected at all times from any
possible approach, and its every movement and con-
duct would seem to be an eloquent demonstration of
the fact that it proved itself worthy of the confidence
placed in it to faithfully carry out the admittedly
tremendous responsibilities entrusted to it.” (R. pp.
44a-45a.)
The District Court claims that special note must be
given to the attempt of the newspapers to influence the
jury by taking photographs of the jury so that they would
look for their photographs in the newspaper and thereby
expose themselves to the prejudicial reporting (R. p.
453a). On the motion for new trial, the trial court stated:
“Jurors were flash-photographed in their comings and
goings and it is difficult to know how that can be pre-
vented even if, indeed, it should be. Jurors are hu-
man beings and become citizens of special importance
when undertaking a signal public service. Nota single
emma
49
complaint was registered by any juror in this connec-
tion and it is worthy of note that the defense does not
even claim that any juror was affected in the least by
it. Furthermore, they were not flashed by agents of
the State nor on its behalf. Such exposures to public
attention are not matters of prejudice for or against
either the State or defendant but matters of news in-
terest to newspapers. They remain wholly neutral if
fed sufficient news or pictures of interest.” (R. pp.
40a-41a.)
No pictures were taken of the jury during their delibera-
tions in the jury room, nor is there any evidence that this
jury was approached by the news media about the evi-
dence in the case.
On the trial, the trial judge said:
“The court will state that; that at the outset of this
trial the court ordered that no pictures be taken of
the jurors while the impaneling was in progress, and
absolutely refused to permit any pictures to be taken
of the jurors in their seats during the impaneling and
during the proceedings that resulted from the im-
paneling, and that the court had stated to the photog-
raphers and other newspaper representatives that
if and when a jury was finally seated, that they would
be permitted, outside of the court sessions, to have a
picture of the jury, if all jurors were agreeable to
that procedure.” (Tr. 1635.)
The District Court comments that the newspaper ran
editorials praising the trial judge and that he was a candi-
date for re-election; that this certainly was an attempt to
bring him around to their way of thinking. (R. p. 453a.)
And counsel for the petitioner infers in his argument to
this Court, that if the trial judge had not been running for
re-election to retain his post, and the prosecutor had not
sought election to the bench, the petitioner would not have
been convicted of this crime.
—
50
The state judge was not the trier of the facts in this
case. The verdict on the facts was rendered by a jury. Nor
is there any showing that the trial judge or the prosecutor
were, as a result of running for election, denying due proc-
ess to the petitioner. The Court of Appeals appropriately
said:
“Much has been made of the fact that the Shep-
pard trial begun on the eve of a judicial election at
which the trial judge and one of the prosecution staff
were candidates. ‘Ve must assume that this is empha-
sized to imply that desire for victory may have led
the jury to conduct prejudicial to Dr. Sheppard’s
rights. We would have to entertain a low estimate of
the integrity of our fellow judicial officers to join in
any such inference. In most of the states of the Union
it is traditional that those who occupy judicial office
be required from time to time to account for their
stewardship by submitting to election. If it is sug-
gested that we presume that an elective judiciary can
preserve constitutional rights only at some unde-
fined distance in time from election day, we reject
such suggestion out of hand. As realists we know that
those who seek reelection to judicial office hope that
their conduct will find public approval, but we do
not think that judicial misconduct would be more
attractive to the electorate than conduct marked by
the integrity which we as judges like to believe is
possessed by elected judges as well as those who have
the security of tenure during ‘good behavior.’ Nor
are we prepared to presume that any judge is so far
enamored of his position as to betray its responsibili-
ties, no matter what he thinks would most please the
electorate. Additionally, it is not inappropriate to note
that much of the publicity complained of, and the
actual taking of testimony at Dr. Sheppard’s trial,
occurred after the election had been held. For like
reasons, we must reject Dr. Sheppard’s repetition in
this Court of his broadside charge ‘that the elective
eae
51
judges of Ohio were so biased and prejudiced against
him that he could not expect fair adjudication of his
case in state courts. * * *’” (Pet. App. A, pp. s.41-
s.43.)
The District Court claimed that the requisite atmos-
phere for a fair trial did not exist. Counsel for the peti-
tioner has submitted a wholly distorted picture of the
arrangements made by the trial court before trial to govern
the news media. For a fair and objective statement per-
taining to such arrangements, we direct the attention of
this Court to the words of the trial judge in his memo-
randum on the motion for new trial.
Regardless of what action was taken by the trial court,
it was certain that all of these newspaper reporters were to
be present and that demands would inevitably be made
upon the trial court by all types of news media. When the
affidavit in support of a motion for new trial (App. A, pp.
s.158-s.164) was filed with the trial court, the trial Judge
stated, in ruling upon the motion for new trial:
“Realizing that the case had caught the public
imagination to an extent leading national and, indeed,
international news media to decide to fully ‘cover’
the trial, and having requests for space for many of
them, the Court decided to make proper arrange-
ments before trial and to control the situation so as
to minimize and, if possible, eliminate confusion dur-
ing the trial. The court room is small.
“The Court assigned specific seats to individual
correspondents in the rear of the court room and
back of the trial area, and issued orders that there
was to be no crowding or congregating at the front
end entrances (one on each side of the bench) of the
court room; that there was to be no passing back
and forth through the trial area and that all entries
to and moving out of the court room be via the
public doorway in the rear of the court room. Mem-
em a mses wae —
52
bers of the defendant’s family were accommodated
with seats at all times during the trial. The same
was accorded members of the family of the murdered
Marilyn. Members of the general public were ad-
mitted to the extent of the seating capacity of the
court room and a scheme of rotation was established
so that many persons attended some sessions of the
trial and no favored members of the general public
were present at all times, nor permitted to be.
“Rules were prescribed for photographers and
representatives of radio and television stations. They
were cautioned that no cameras were to be permitted
in the court room excepting in the morning before
the convening of court and at the close of the day
after adjournment, and that in no event were pictures
of the defendant to be taken in the court room at
any time excepting with his consent or that of his
counsel.
“The Court’s arrangements and orders were car-
ried out with one or two simple insignificant excep-
tions, due to over-enthusiasm. ‘The defendant and his
chief counsel were far more gracious to the press,
photographers and gallery than was the Court. A
very large number of pictures of the defendant, his
family, counsel and friends were taken in the court
room (outside of court session periods) with their
permission and without complaint. Counsel for the
defense held press conferences in the court room with
cameras clicking; all to the apparent delight of coun-
sel for the defense, and, naturally, without protest.
“Julian Wilson, a photographer for the Associated
Press, testified on this point at the hearing had on the
motion and supplemental motion. His testimony
stands wholly unchallenged and it states the pro-
cedure followed with perfect clarity.
Se *e #
“Some space outside of the court room which
could be spared for the moment without interference
°
MEK A LILA IG LL IPGL ATLL ELL” AIO, SRE MEN EI INGE _—
53
with the public service was used by publicity agencies
for their typewriters and other equipment but it is
definitely not true, as stated in the motion herein,
that:
‘The Assignment Room, where cases are assigned
for other causes to court rooms, was assigned by
the Court to reporters and telegraphers.’
“Some generally unused space in the Assignment
Room was so assigned. Neither person, record, nor
piece of equipment in the Assignment Room was
moved, removed or displaced and the Assignment
Room functioned normally throughout the entire pe-
riod of the trial of this cause. One of the real pur-
poses of assigning that space to the uses mentioned
was to remove them entirely from the immediate
court room area. They were out of the corridors lead-
ing to the court room and permitted free movement
of the public and visitors within the building, whether
there in connection with this case or otherwise, wholly
unaffected by the Assignment Room space activity.”
(R. pp. 39a-41a.)
The Ohio Court of Appeals in its opinion, stated:
“It is claimed also that the court arranged the
courtroom to accommodate a great many represent-
atives of the press, radio and television and other
news-disseminating agencies, thus restricting accom-
modations available for others. The record shows that
the defendant’s family was provided for and that the
defendant’s brother Dr. Stephen Sheppard, although
a witness, was permitted by order of the court to
remain in the courtroom throughout the trial. The
court in this case was presented with a very difficult
matter because of the unusual amount of coverage
attempted by the press, radio and television agencies.
The arrangements made by the court were within
its sound discretion. Certainly the defendant was
afforded a public trial, and fi .m a reading of the rec-
ord, we cannot say that the court in seeking to main-
54
tain an orderly proceeding abused its discretion in
directing the courtroom arrangements.” (R. p. 84a.)
The Court of Appeals said:
“The District Judge also concluded that news cov-
erage of the trial deprived petitioner of his constitu-
tional rights because it contributed to a ‘carnival at-
mosphere.’ Stress is laid on the manner in which the
trial judge allocated the seating available in his small
courtroom, giving most of it to the press and install-
ing special tables for them. Now, with the reflection
and the hindsight that an interval of ten years has
provided, and after all of the appellate tribunals have
found the judge’s conduct in this regard without con-
stitutional fault, it is asserted that the trial judge
should have done a better job. We are not told what
alternative measures he should have adopted. Cer-
tainly he was without power to slake the public inter-
est. Should he then have selected news representa-
tives who would be regularly favored with admission
to the courtroom, and let each day’s trial begin with
a scramble by the unfavored to gain access? Should
he have moved the trial out of the courtroom into
some public hall or auditorium where the public and
the press could be accommodated at a greater distance
from the jury and counsel? Shall we now speculate
whether such planning would have reduced or aug-
mented the so-called ‘carnival atmosphere’? It is as-
serted also that too many photographs were taken of
the jury, the defendant, and counsel. No photographs
were allowed to be taken in the courtroom while the
court was in session. In view of today’s increasing
dissatisfaction with the aggressive performance of
many of the news media, it may indeed be regretted
that the trial judge did not enforce more rigid disci-
pline of its representatives. But we can no more find
impropriety of constitutional magnitude in what oc-
curred than could the other appellate courts that have
been challenged to do so.
Sie cas
a
55
“The claim that the trial judge contributed to a
‘carnival atmosphere’ is further supported by empha-
sis 011 the installation in the courtroom of a micro-
phore and loudspeakers. This is surprising in view of
the fact that it has become regular practice to install
such electronic equipment in modern courtrooms, in-
cluding those occupied by the United States District
Courts. We find no merit in this claim.” (Pet. App.
A, pp. s.30-s.31.)
The Court of Appeals said further:
“The opinion of the District Court additionally
criticizes activities of the press as follows:
‘The Court need not be naive, and it does not stretch
its imagination to recognize that one of the purposes
of photographing the jurors so often was to be as-
sured that they would look for their photographs
in the newspapers and thereby expose themselves
to the prejudicial reporting. Also, the newspapers
ran editorials praising the trial judge (he was a
candidate for re-election) and published photo-
graphs and sketches of him in at least 46 separate
issues. This was certainly an attempt to bring him
around to their way of thinking.’ 231 F. Supp. 63.
(Emphasis supplied. )
“Even if we were to join in the apparently gratuitous
inference as to the press’ motives, we have just exam-
ined the reasons why we cannot join in the presump-
tion that the jurors violated their oaths and instruc-
tions by examining the trial publicity. Nor are we
willing to assume the judicial venality or timidity we
would have to assume to find any effect of such pub-
licity on the judge in the face of a record which is en-
tirely devoid of any evidence of trial misconduct on
his part.” (Pet. App. A, pp. s.31-s.32.)
Much is made of “disruption of the trial by newsmen.”
It is claimed that the newsmen were responsible for noise
and laughter in the courtroom, but in the petitioner’s brief
56
it is shown from the record that the noise was in the hall,
not in the courtroom. (Pet. Br. p. 41.) And the fact that
there were many newsmen at the trial does not in and of
itself establish that there was any hostile atmosphere ex-
isting during the trial against the petitioner.
As to the incident of laughter (Pet. Br. p. 40), it re-
sulted from Mr. Corrigan’s remark “Well, I don’t care what
the conversation was” after he had asked the witness what
the substance of a conversation was, and the witness had
given his answer.
As to the warning by the court relative to the exhibits,
the son of defense counsel was observed examining and
handling the pillow-case exhibit.
It should be remembered that this trial continued for
some nine weeks and that necessarily there are times when
people are required, for one reason or another, to leave the
court room. A few of these occurrences caused the Court
to admonish the spectators to the end that there be no
interruption of the trial proceedings.
The reference by the Ohio Supreme Court to the “at-
mosphere of a Roman holiday” merely described the wide-
spread publicity furnished by the news media to the public
at large and had no reference to the conduct of the trial
itself, nor to the proceedings in the courtroom. The ex-
pression is also used to mean a “good time” or “field day.”
Certainly, there was no atmosphere of hostility exist-
ing against the petitioner on the trial. And it by no means
follows that the news media slanted the news or even tried
to do so to prejudice or to convict the petitioner. As
clearly indicated by Judge Bell in his opinion, it was a
case involving “murder and mystery, society, sex and
suspense.” The curiosity of the public, excessive though
it may have been, necessarily brought about the wide-
spread publicity.
_ ea
57
As the majority of the Court of Appeals said:
“It should be observed here, however, that no
rule of law, no procedural device, and no constitu-
tional guarantee could then or now erase the murder
of Dr. Sheppard’s wife or its circumstances; such
events inevitably cast the Sheppard trial into the
setting so graphically described by Judge Bell. Judge
Bell’s accurate observation, in our view, merely dem-
onstrates that the Ohio Supreme Court was fully
aware of the subject before it. The fact that two of
the Ohio judges dissented bespeaks the searching and
vigor that must have attended the deliberations of
the seven judges whose decision ended Ohio’s appel-
late review of the matter now before us.” (Pet. App.
s.7-s.8.)
With reference to the argument that the public was
barred from the trial except by special pass, the courtroom
was small, and as this Court said in Estes v. Texas, 381
U.S. 532, 14 L. Ed. 2d 543, 584 (1965), by Mr. Justice
Harlan:
“Obviously, the public trial guaranty is not violated if
an individual member of the public cannot gain ad-
mittance to a courtroom because there are no avail-
able seats. The guaranty will already have been met,
for the ‘public’ will be present in the form of those
persons who did gain admission. Even the actual
presence of the public is not guaranteed.”
All we have in the instant case in the finding of the
District Court that the jury was not a fair and impartial
jury is suspicion, surmise, conjecture, and a general dis-
trust of the jury with no basis in fact that the jury was not
to be trusted to render a fair and impartial verdict based
solely upon the evidence produced in court and the instruc-
tions of the court on the law applying to the evidence.
58
As the majority of the Court of Appeals said:
“Judge Blythin summed up his own estimate of
the situation in the following language:
‘We can’t control publicity, and I do not believe that
you will ever end the publicity in this case until
you end the trial of this case, and I think perhaps
it is our duty to put that business in reverse and
proceed on a business-like, fair, honest, legal basis
to try the case and have it disposed of in the in-
terest of the State and certainly it is in the interest
of Sam Sheppard to know whether a fair and impar-
tial jury would declare him guilty or not guilty on
the evidence which will be here produced. * * *’
We hold that petitioner failed to meet his bur-
den of proving that the pretrial and trial publicity dis-
cussed above denied him due process of law or its
equal|protection.” (Pet. App. s.33-s.34.) |
i.
IMPARTIALITY OF THE TRIAL JUDGE.
The District Court made a finding that the trial judge
should have disqualified himself (R. p. 456a).
This finding is based solely upon the unsworn state-
ments of columnist Dorothy Kilgallen Kollmar to whom
the trial judge allegedly said before the trial, “Well, he
(Sheppard) is as guilty as hell and the case “is open and
shut” (R. p. 457a); and Edward Murray, an employee in
the office of the Clerk of the Common Pleas Court of Cuya-
hoga County, to whom the trial judge allegedly said
months before the trial, “Sam Sheppard is as guilty as
he (the judge) was innocent.” (R. 386a.)
It is a matter of common knowledge around the Court
House in Cuyahoga County that Ed Murray was a
patient of the petitioner’s brother, Dr. Steve Sheppard,
and has a son in the same osteopathic field, who interned
at the Sheppards’ hospital.
Sl
59
It was also well known among the news reporters at
the Criminal Courts Building during the trial, that Doro-
thy Kilgallen Kollmar was not on friendly terms with the
trial judge and if anybody made a disturbance during the
proceedings, she did. Judge Blythin had warned her that
she would be barred from the courtroom if she did not
obey his rules. She was always arriving late and rushing
around to get material in a hurry for her noon lead.
A third unsworn statement was made by Mr. Gar-
mone, one of the three trial counsel (R. p. 382a), which
shows that defense counsel were satisfied that the trial
judge would be fair and impartial in the handling of the
trial, and that no affidavit of bias and prejudice was filed
against the trial judge. While Judge Blythin’s son was a
member of the Cleveland Homicide Bureau, he did not
participate in the investigation of ikis crime. The trial
record shows who the investigating officers were.
We do not find that Dorothy Kilgallen’s statement is
a matter of record in the District Covit. R. pp. 388a-
392a shows her statement in which it is stated: “By
agreement of counsel, no oath is administered since the
integrity of the witness is not in dispute.” The statement
was taken on May 9, 1964 in New York, but how the
District Court obtained the statement is not a matter of
record. She was not cross-examined. :
On the basis of this highly incompetent matter which
would have no standing in any court, the District Court
impugns the integrity of the state trial judge. The District
Court concludes that these unsworn statements are uncon-
troverted evidence in this case and must be accepted as
being true. (R. pp. 458a-459a.) Upon what legal basis
must they be accepted as being true?
The statements do not even rise to the level of affi-
davits, and even if they had been made under oath, it
—E
—
60
has been held that issues of fact cannot be established in
habeas corpus proceedings by ex parte affidavits; Walker v,
Johnston, 312 U. S. 275, 285, 85 L. Ed. 830, 61 Sup. Ct. 574
(1941); Moses v. Hudspeth, 129 F. 2d 279, 280 (10th Cir.)
(1942), certiorari denied in 317 U. S. 665, 87 L. Ed. 534,
63 Sup. Ct. 73; Jones v. Cunningham, 313 F. 2d 347 (4th
Cir.) (1963).
Further, the District Court knew that there is no way
of rebutting these statements since the trial judge has been
deceased for some years. To honor these unsworn state-
ments is analogous to denying cross-examination. Waiting
for some ten years until the State of Ohio, the plaintiff in
the original action, was unable to defend by the refuting
statement of an esteemed trial potas the direct effect of
denying the State of Ohio due p of law. And it is
material to ask, where have these individuals been for the
last ten years who are now claiming that Judge Blythin
made such statements to them, if what they now say is the
truth?
The District Court made no examination of the trial
record to support his finding that the trial judge was biased
and prejudiced, and the only proper and competent proof
to determine this issue is the record of the trial which
speaks for itself. Nor is there any showing in the trial
record that the trial judge, in fact, did anything but prop-
erly carry out his duties as a presiding judge in this case
in safeguarding and protecting the rights of this petitioner
to a fair trial by a jury. Judge Blythin was not the trier of
the facts. Issues of fact on the trial were determined by
a jury, not by the judge.
In charging the jury, the trial judge said:
“It has undoubtedly occurred to you that deciding what
the facts are in a case of this kind is a very important
61
function. It is, in fact, an all important function and is
exclusively your function. With it I have nothing
whatever to do, and if by anything that has been said
or done during the progress of this trial, or by some-
thing that is now said, or by some emphasis which
you may think I place on something I now say, there
is expressed—there is created in your minds some im-
pression that I have formed some opinion as to what
the facts are in this case, you are now instructed to
disregard and dismiss such impression entirely and
to proceed to arrive at your own conclusions on the
basis of instructions now being give to you. You
are the sole judges of the facts in this case.” (Tr.
6992-93.)
Section 2701.03 of the Revised Code of Ohio reads:
“When a judge of the Court of Common Pleas is inter-
ested in a cause or matter pending before the court,
is related to, or has a bias or prejudice either for or
against a party to such matter or cause or to his coun-
sel, or is otherwise disqualified to sit in such cause
or matter, on the filing of an affidavit by any party to
such cause or matter, or by the counsel of any party,
setting forth the fact of such interest, bias, prejudice,
or disqualification, the clerk of the Court of Common
Pleas shall enter the fact of such filing on the trial
docket in such cause and forthwith notify the chief
justice of the Supreme Court. The chief justice shall
designate and assign some other judge to take the
place of the judge against whom such affidavit is filed.
The judge so assigned shall try such matter or cause.
Such affidavit shall be filed not less than three days
prior to the time set for the hearing in such matter or
cause.”
This state legislation requires the timely filing of an affi-
davit of bias and prejudice and both the state constitu-
tional provision and state statute require that the ques-
tion of bias and prejudice be determined by the Chief
—
62
Justice of the Supreme Court. No affidavit of bias and
prejudice was filed in the instant case in the state court.
It is stated in 30A American Jurisprudence, Sec. 172,
p. 89:
“A judge is not disqualified to sit in a criminal case
merely because he has an opinion as to the guilt of
the accused, or is convinced of his guilt, * * *”
Furthermore, even though the trial judge may have ex-
pressed an opinion as to the guilt of the petitioner to
strangers to the case, there is no showing or any proof that
the trial judge conveyed any such personal opinion to the
jury, who were the triers of the facts. The trial judge did
not render the judgment on the facts.
The Court of Appeals said:
“We believe that the District Judge was under a
misapprehension in assuming that because Judge
Blythin could not answer the charges against him,
such charges constituted ‘uncontroverted evidence’
that Judge Blythin had made the statements at-
tributed to him. There are many circumstances in
which testimony need not be accepted even though
formally uncontradicted. E.g., Quock Ting v. United
States, 140 U. S. 417, 420-22, 35 L. Ed. 501, 502-03
(1891); Scates v. Isthmian Lines, Inc., 319 F (2)
798, 799 (CA 9, 1963); Ramos v. Matson Nav. Co.,
316 F (2) 128, 132 (CA 9, 1963); D’Orsay Equip.
Co. v. United States Rubber Co., 302 F (2) 777, 779-
80 (CA 1, 1962); Powers v. Continental Cas. Co., 301
F (2) 386, 388-89 (CA 8, 1962); Wooley v. Great Atl.
& Pac. Tea Co., 281 & (2) 78, 80 (CA 3, 1960);
Hasson v. C. I. R., 239 F (2) 778, 782 (CA 6, 1956);
Andrew Jergens Co. v. C. I. R., 125 F (2) 686, 689
(CA 6, 1942); Goodyear Tire & Rubber Co. v. FTC,
101 F (2) 620, 624 (CA 6, 1939), cert. denied, 308
U. S. 557, 84 L. Ed. 468 (1939) ; 8 Cyclopedia of Fed.
Proc. § 26.98 (3d ed. 1951); 11 Id. § 47.161 (3d ed.
63
1963); 7 Wigmore, Evidence, § 2034, pp. 260-63 (3d
ed. 1940). Manifold reasons for rejecting the ‘un-
controverted’ statements adduced by petitioner exist
in the present case. Whether offered to prove the
matter asserted or merely the fact of assertion, testi-
mony as to the uncorroborated oral statement of a de-
ceased person is the weakest form of evidence, viewed
with suspicion and subject to close scrutiny. ‘The
courts consider with suspicion, or lend a reluctant ear
to, statements as to what a deceased person may have
said, especially when corroboration is lacking.’ 31A
C. J. S. Evidence, § 266, p. 689. Such statements ‘are
regarded as of comparatively little probative value.
* * * 20 Am. Jur. Evidence, § 1196, p. 1048, and
“* * * courts of justice lend a very unwilling ear to
statements of what dead men had said,’ Lea v. Polk
County Copper Co., 62 U. S. (21 How.) 493, 504, 16
L. Ed. 203, 207 (1859). * * *” (Pet. App. A, pp.
s.35-s.36. )
The Court of Appeals said further:
“The only authorities cited by the District Judge
for his finding of constitutional error in the failure of
the trial judge to recuse himself, State, ex rel. Pratt
v. Weygandt, Chief Justice, 164 Ohio St. 463, 132
NE (2) 191 (1956); Tumey v. Ohio, 273 U. S. 510,
71 L. Ed. 749 (1927) ; In re Murchison, 349 U. S. 133,
99 L. Ed. 942 (1955), are completely inapposite. In
the case at bar it was the jury and not the judge who
determined the guilt or innocence of petitioner. Pratt
v. Weygandt was a divorce case to be decided entirely
by the trial judge, and mandamus to compel his re-
placement was refused. McFadden v. United States,
63 F (2) 111 (CA 7, 1933), not cited by the court
below, is also distinguishable as involving a trial to
the judge without a jury. Similarly, in Tumey v.
Ohio, the United States Supreme Court held improper
state provisions for trial of liquor law violations be-
fore a village mayor who was to retain the amount of
his costs in each case of conviction, in addition to his
64
salary. The Court said, ‘But no fees or costs in such
cases are paid him except by the defendant if con-
victed. There is, therefore, no way by which the
mayor may be paid for his service as judge, if he does
not convict those who are brought before him * * *,’
273 U. S. 520, 71 L. Ed. 753. (Emphasis supplied.)
The Court also noted that ‘all questions of judicial
qualification may not involve constitutional validity.
Thus matters of * * * personal bias * * * seem gen-
erally to be matters merely of legislative discretion.’
273 U. S. 523, 71 L. Ed. 754. In re Murchison involved
the Michigan ‘one-man grand jury’ statute and the
Supreme Court held that due process was denied
where the judge presiding at a contempt hearing had
also served as the ‘one-man grand jury’ out of whose
proceedings the contempt charges arose. The distinc-
tion between these cases and the case at bar is ob-
vious.” (App. A, pp. s.39-s.40.)
There is no basis in the trial record for any finding
that the trial judge did not discharge his duties with due
regard for the constitutional rights of the petitioner to a
fair trial.
Ill.
LIE DETECTOR TESTIMONY.
It is not a fact, as stated by present counsel (Pet. p.
32) that defense counsel “cited specifically” the publicity
given petitioner’s refusal to take a polygraph test when
he sought a change of venue and/or a continuance. And,
publicity concerning the lie detector occurred months be-
fore the trial.
The petitioner did not allege as error in the state
courts, the admission of testimony concerning his unwill-
ingness to take a lie detectsx ‘est.
The District Court sound that it had jurisdiction to
consider this alleged ecror even though it was not urged
on appeal to the Chio Courts (R. pp. 464a-465a); and
65
found further that the trial judge had the duty of in-
structing the jury that no inference could be drawn from
petitioner’s refusal to submit to such a test, and by failing
to do so, he violated petitioner's constitutional rights. (R.
p. 468a.) The court quotes from Fay v. Noia, 372 U. S. 391,
as authority for taking jurisdiction on this issue although
it was not raised in the state courts.
Failure to obtain review in the state courts on this
issue was not because any appellate remedies were with-
held by the state courts as in Noia, supra, and all that Noia
stands for is that failure to timely appeal from a state con-
viction did not bar federal habeas corpus relief under
exceptional circumstances. For this Cour! said in Noia,
372 U. S. 391, at pages 428-429:
“It is a familiar principle that this Court will decline
to review state court judgments which rest on inde-
pendent and adequate state grounds, notwithstanding
the co-presence af federal grounds. See, e.g. NAACP
v. Alabama, 357 U. S. 449, 2 L. Ed. 2d 1488, 78 S. Ct.
1163; Fox Film Corp. v. Muller, 296 U. S. 207, 80 L.
Ed. 158, 56 S. Ct. 183. Section 25 of the Judiciary Act
of 1789, c 20, 1 Stat. 85-87, denied this Court power
to base the reversal of a state court decision on any
error other ‘than such as * * * immediately respects
* * * questions of validity or construction of the said
(Federal) constitution, treaties, statutes, commis-
sions, or authorities in dispute.’ The deletion of the
express restriction by the Judiciary Act of February
5, 1867, c 28, Sec. 2, 14 Stat. 386-387, did not enlarge
this Court’s power in that regard. * * *”
This Court stated also in Noia, 372 U. S. 391, at p.
441:
“Noia’s case stands on its own. * * *”
We contend that by this piecemeal consideration of
an issue that could have been raised in the state courts, the
District Court encroached upon the state appellate
court’s prerogative to search the record and determine
whether the admission of this testimony and the instruc-
tion of the trial court was error, and if error there was,
whether it was prejudicial.
And the cases cited by the District Court in the in-
stant case, namely, Frye v. United States, 293 F. 1013 (D.
C. Cir. 1923), Ohio v. Smith, 113 O. App. 461 (1960), and
New Jersey v. Driver, 183 A. 2d 655 (1962) are decisions
in which appellate courts were exercising their appellate
court prerogatives in determining whether there was prej-
udicial reversible error in the admission or exclusion of
evidence pertaining to the lie detector.
As stated in Wolf v. Nash, 313 F. 2d 393 (C. A. Mo.)
(8th Cir.) (1963), certiorari denied, 83 S. Court 1713, 374
U. S. 317, 10 L. Ed. 2d 1041, the due process clause of the
14th Amendment does not enable a federal court to review
errors of state law.
Furthermore, there is no foundation in the record for
the raising of any claim that the petitioner's constitutional
rights were violated in the admission of conversations
between the petitioner and the officers concerning the lie
detector. The defense went into the matter also on the
trial, on this issue. How was the petitioner denied due
process of law under the circumstances?
The trial court instructed the jury that a person is
not compelled to take a lie detector test (Tr. 3852). The
trial court had nothing before it upon which to instruct
the jury further concerning the lie detector. In relating
his first conversation with the petitioner about taking a
lie detector test, Officer Schottke testified on direct exam-
ination:
“He was then asked if he would take a lie detec-
tor test and he said ‘yes.’ He asked how a lie detector
——
67
worked and we told him that it takes the reaction of
the respiratory system.
* * * He said that due to his present condition,
that he didn’t feel as thouysh this would be a fair test
and that he would not want to take the test at this
particular time.
We told him that he would be able to take the
test, if he wanted to, at the time when he felt better.”
(Tr. 3950-3951.)
No objection was made to this testimony.
On cross-examination of Officer Schottke, defense
counsel questioned him as follows regarding a later con-
versation he had with the petitioner:
“Q. Now, during that conversation you asked him
about the lie detector again, didn’t you?
~ A. I don’t recall at this particular time whether
I did or not. :
Q. Well, to try and refresh your memory, did
you say to him, ‘Doctor, are you still willing to take
a lie detector test?’
A. I don’t recall at this time, sir.
Q. And did he say to you that, ‘I am willing, but
not one that will be conducted by the Cleveland Police
Department, because you have already accused me’?
Did he answer you that way?
A. I don’t recall.
Q. And did he add that, ‘If you can find some-
body that is competent in a community far removed
from the city of Cleveland,’ that he would be willing
to accompany you and take the test that you requested
of him?
A. I don’t recall that conversation.
Q. You don’t recall that, But you wouldn't say
to this Court and jury, under the vath that you have
accepted to tell the truth, that that conversation didn’t
take place, would you, Officer Schottke?
A. I don’t recall at this time the conversation
that you state.” (Tr. 3727-3728.)
—E
ee
68
And on re-cross-examination, Officer Schottke was again
questioned concerning the petitioner’s willingness to take
a lie detector test. (Tr. 3743.)
At Record 3846, Deputy Sheriff Rossbach related his
conversation with the petitioner about taking a lie detec-
tor test. No objection was made to this testimony. It was
not until Jater on, during Rossbach’s testimony, that the
defense, for the first time, objected to testimony concern-
ing the lie detector (Tr. 3851) which was followed by the
court’s instruction to the jury that no one is compelled to
take a lie detector test.
Despite the above objection, Dr. Sheppard when tes-
tifying in his own behalf on direct examination by his
counsel, told about the first request that he submit to a lie
detector test and stated that he told the officers he would
be willing to submit to such examination “if it was a re-
liable test.”
On direct examination, the petitioner testified:
“A. Officer Schottke said that, would I submit to
a so-called lie detector test, and I said I certainly
would if it was a reliable test.” (Tr. 6298.)
*k * *
“the last I knew, the lie detector has—the so-called lie
detector was far from infallible, but if it were, I
would certainly take it.” (Tr. 6298-99.)
The petitioner, of course, had not submitted to any lie de-
tector test, but in view of what the record shows, where is
there any support for holding that the admission of this
testimony constituted prejudicial reversible error, or that
the petitioner was denied due process of law on this issue.
The trial court in instructing the jury that no one is com-
pelled to take a lie detector test was merely applying a
rule of evidence. This raises no federal question. As
SIE PEN aOR EN et ae
en
69
stated in Buchalter v. People of State of New York, 319
U.S. 427, 431, 63 S. Ct. 1129, 1131, 87 L. Ed. 1492:
“The due process clause of the 14th Amendment does
not enable us to review errors of state law however
material under that law. See also Lisenba v. People
of State of California, 314 U.S. 219, 226-229, 62 S. Ct.
280, 86 L. Ed. 166.”
The District Court found that Mayor Houk’s testimony
concerning the taking of a lie detector test permitted the
jury to infer that he had passed the test and that Houk
was not on trial. (R. p. 469a.)
Houk was merely a witness in this case, not the de-
fendant. The petitioner’s brother, Dr. Steve Sheppard,
had filed charges with the police against Mayor Houk, and
Houk’s willingness to take the lie detector test was simply
one item of fact to show both his attitude and conduct. It
certainly does not raise any constitutional issue for the
petitioner because Mayor Houk took a lie detector test,
ner could it be consistently claimed that the petitioner
was denied due process of law because Mayor Houk was
willing to take a lie detector test.
In the instant case, the State court by its instruction
to the jury concerning the lie detector was merely inter-
preting state law. There is no adequate federal basis for
the finding of the district court on this issue. The mere
suggestion that the petitioner submit himself to certain
tests did not deny him due process of law. He did not take
any tests nor was he compelled to do so.
The Court of Appeals stated:
“* * * We cannot find that the handling of this
matter deprived the petitioner of any federally grant-
ed constitutional rights. If there was fault in what
occurred, it was a nonconstitutional error which
should have been assigned on appeal. Habeas corpus
70
is not to be employed as a substitute for appeal. E.g.,
Oyler v. Tayor, 338 F (2) 260, 262 & n. 3 (CA
10, 1964); Allen v. Bannan, 332 F (2) 399, 402 (CA
6, 1964); Barker v. Ohio, 328 F (2) 582, 584-85 (CA
6, 1964); Worth v. Michigan, 291 F (2) 621, 622 (CA
6, 1961), cert. denied, 368 U. S. 862 (1961) ; Anderson
v. Jones, 281 F (2) 684, 686 (CA 6, 1960).
“We think that the observations of the Seventh
Circuit in United States ex rel. Townsend v. Ogilvie,
334 F (2) 837, 843-44 (1964) are pertinent here.
‘The (federal) court does not possess a residu-
um of power to search the record for procedural
errors not involving constitutional rights and issue
a writ of habeas corpus for the purpose of provid-
ing a new trial in the state court.
‘A federal court acting in this fashion would
constitute a super appellate tribunal and encroach
upon state appellate court prerogatives; such action
would affront the principles of federalism upon
which our federal-state juridic system operates.’
“At this distance, we cannot say that the decision
of Dr. Sheppard’s veteran counsel to withhold objec-
tion to the lie detector evidence prejudiced their cli-
ent. It goes without saying that Dr. Sheppard's con-
viction does not prove such.
“As proud as we are of the great traditions of our
courts and their concern for the rights of those ac-
cused of crime, we are aware that like all human in-
stitutions they seldom act with perfection. It is not
difficult, after ten years of searching analysis and con-
templative study and the announcement of some new
judicial attitudes, to find some imperfections in the
conduct of a trial and to conclude that a judge or any
attorney could have done a better job. But stability
of the law and a nation’s respect for its courts will
disappear if, long after the event, their judgment may
be set aside because a trial judge’s discretion was less
than perfectly exercised or because it is thought that
_ ems
71
the trial plan of defense counsel was not the best that
could have been employed. This must be especially
true where an accused has enjoyed adequate and full
opportunities for appellate review.” (Pet. App. A, pp.
s.48-s.49. )
The right to present error with respect to a disclosure
that the petitioner had refused to take a lie detector test
was waived by counsel. The witnesses were cross-
examined on the subject and the defense by the petitioner’s
own testimony on direct examination got before the jury
the disbelief of people generally that such tests are reliable
and thus avoided any unfavorable inferences (Tr. 6298-
99). Counsel had presumably taken the position that to
explore the subject in detail would be advantageous to his
cause. Cf. United States v. Bando, 244 F. 2d 833 ( 1957),
cert. den. 355 U.S. 844, 2 L. Ed. 2d 53, 78 S. Ct. 67; Rank
v. State (1962, Alaska), 373 P. 2d 734. Further, the func-
tion of the trial jury to assess the credibility of the peti-
tioner was not usurped by the introduction of any results
of a lie detector test.
IV.
ALLEGED MISCONDUCT OF BAILIFFS IN ALLOWING
JURORS TO CALL THEIR FAMILIES.
This issue was before this Court on the previous peti-
tion for a writ of certiorari.
We wish to point out, at the outset, that the matters
complained of took place in the hotel room when some of
the jurors called their husk ands or children on the tele-
phone, and not in the jury room during the deliberations.
The jurors deliberated in a room above the court room in
the Criminal Courts Building and there is absolutely no
evidence in the record showing any misconduct of the
jury or of the officers in charge.
72
The telephone calls to the husbands and children of
the jurors, all made in the presence of the bailiff, were
not made during the deliberations of the jury. They were
made from the hotel room to which they had been taken
from the jury room and there is no evidence whatsoever
that the case was even discussed in these telephone calls,
much less anything said prejudicial to the petitioner.
There is no evidence whatsoever of telephone conver-
sations with strangers. The testimony of Bailiff Edgar
Francis follows:
“Q. Do you know, of your own knowledge,
whether there were any telephone communicaticns
made out of any of the respective rooms that were
occupied by any members of the jury?
A. Their phones were cut out, Mr. Garmone.
Q. By whose reques’.?
A. Mr. Steenstra arranged that.
Q. And were there any telephone calls made
from the room that you occupied?
A. Yes, sir.
Q. Did you make the calls, or did the jury make
the calls?
A. No. The jury made the calls, and I sat in the
chair right alongside the telephone.
* * *
Q. Mr. Bailiff, what was the purpose of the calls
that the jurors made in your presence?
*x* * X
A. Well, they were made to their husbands and
wives, and those that had children, they talked to the
children.
Q. Was there any conversation whatsoever about
this case or their deliberations?
A. Not one word, Mr. Parrino.” (Tr. 7084-7085.)
The defense saw fit to call certain jurors to the witness
stand on their motion for new trial and if they wished to
ee.
73
pursue this matter further, they had the right and oppor-
tunity so to do. They chose not to do so and there is noth-
ing in the record whatever of anything having been said or
done either by the bailiffs or by or to the jurors prejudicial
to the petitioner.
The trial court stated when a supplemental motion for
new trial was filed:
“The court named Simon Steenstra, permanent crimi-
nal jury bailiff and Edgar Francis his own courtroom
bailiff as the persons to have charge of the jury in
their movements during the period of deliberation.
They were named in open court in the presence of
all interested parties. Both were well known to all
parties, with the possible exception of defendant, and
not a word of objection was voiced by anyone. Fur-
thermore, one of counsel for the defense saw the
court in chambers prior to the selection of said bailiffs
and inquired of the court who he intended to appoint
to take charge of the jury during the deliberation
period. Upon being informed that the court would
name Bailiffs Steenstra and Francis he expressed his
wholehearted approval.” (R. p. 47a.)
The Supreme Court of Ohio in the opinion states:
“Defendant contends that he was prejudiced in this
case by the actions of two officers of the court, in
whose charge the jury was committed during its
deliberations, in permitting some members of the jury
to make unmonitored telephone calls in violation of
Section 2945.33, Revised Code, which reads as fol-
lows:
‘When a cause is finally submitted the jurors must
be kept together in a convenient place under the
charge of an officer until they agree upon a verdict,
or are discharged by the court. The court may per-
mit the jurors to separate during the adjournment
of court overnight, under proper cautions, or under
supervision of an officer. Such officer shall not per-
74
mit a communication to be made to them, nor make
any himself except to ask if they have agreed upon
a verdict, unless he does so by order of the court
* * *&?
“It is conceded that no authorization for such tele-
phone calls was given by the court.
“At the conclusion of each day’s deliberation, the
members of this jury were housed in the Carter Hotel,
under the supervision of two court bailiffs. The record
reveals that the telephones in the hotel rooms occu-
pied by individual jurors had been ‘cut out.’ However,
some of them were permitted to make calls on the
telephone in the room of one of the bailiffs.
“Counsel for defendant rely upon State v. Adams,
141 Ohio St. 423, 48 N. E. (2d) 861, 146 A. L. R. 509,
as authority for their contention that the action of the
bailiff in permitting these telephone calls constituted
error prejudicial to the defendant. They cite the third
paragraph of the syllabus of that case, which reads:
‘The violation by a court officer in charge of a jury of
Section 13448-1, General Code (Section 2945.33,
Revised Code), to the effect that he shall not com-
municate with a jury in his charge or custody
except to inquire whether it has reached a verdict,
will be presumed to be prejudicial to a defendant
against whom, after such communication, a verdict
is returned by such jury.’
“A mere reading of the following fourth paragraph
of the syllabus of the Adams case should be sufficient
to distinguish that case from the present one:
‘Where a court bailiff, on being informed by the jury
during its deliberations that it could not agree,
stated to it: ‘You can’t do that. You must reach a
decision if you have to stay here for three months,
there is a violation of the statute which is prejudicial
to a defendant against whom, following such decla-
ration, a verdict is returned by the jury.’
REELS GELS OI PIE LI LE NETL
a
75
“The case of Emmert v. State, 127 Ohio St. 235,
187 N. E. 862, 90 A. L. R. 242, although not cited by
defendant, might also be authority for the proposi-
tion that misconduct of a bailiff is ground for reversal.
That case, however, is also readily distinguishable
from the present one. In the Emmert case the officer
in charge of the jury, at a time when it was not
actually in its deliberative sessions, said to certain
members of the jury: ‘My God, you are all wet. Judge
Stahl expects you to return a verdict of guilty and if
you don’t it will be just too bad.’ Other remarks of a
similar nature to the effect that the jury had to reach
a verdict were made by the bailiff.
“In situations such as those in the Adams and Em-
mert cases, it is easy to presume prejudice to the de-
fendant as a result of the conduct of the bailiff. Can
the same be said of the conduct of the bailiffs here in
permitting jurors, who for severa! days and nights had
been sequestered and unable to see or hear from their
husbands, wives or children, to telephone those mem-
bers of their families? We do not think so. There
is, on the contrary, every reason to believe that as-
surances of the health and welfare of their loved ones
would tend to ease the jurors’ minds as to personal
matters and would make them better, more conscien-
tious jurors. Time after time, the members of this
jury were instructed by the court not to communicate
with anyone concerning this case or permit anyone
to communicate with them about it. We must assume
they followed the court’s instructions. No complaint is
made that they disregarded these instructions every
night for some seven weeks that they were allowed
to go home at the close of each day’s session of the
trial. It is difficult to visualize a juror who will follow
a court’s instruction during the many hours he spends
each evening and week end with his family and then
deliberately disregard that instruction in a few brief
moments he speaks to a member of his family on the
telephone in the presence of a bailiff.
76
“The law in Ohio is that no judgment of conviction
shall be reversed in any court for any cause unless it
appears affirmatively from the record that the defend-
ant was prejudiced thereby or was prevented from
having a fair trial. Section 2945.83, Revised Code.
There is no such affirmative showing of prejudice
here, and this Court will not presume a prejudice as a
matter of law from the fact that some of the jurors
made telephone calls to members of their immediate
families.” (R. pp. 111a-113a.)
The District Court says that the Supreme Court of
Ohio should have granted a new trial because of the un-
equivocal language of Section 2945.33, supra, and cites
Mattox v. United States, 146 U. S. 140 (1892). But in the
Mattox case, which was heard on appeal, communications
with the jury were shown to be harmful. A newspaper
account of the case was introduced into the jury room
during deliberations, bearing upon the merits of the case.
The record in the instant case, however, affirmatively
shows that the telephone calls made by the jurors to
members of their immediate families were harmless. The
District Court’s conclusion that they were harmful to the
petitioner is again based upon a suspicion that the jurors
were not to be trusted in following the instructions of the
court not to discuss the case with anyone.
Further, we cannot see where a Federal District Court
has any jurisdiction on habeas corpus to interpret a state
statute such as Section 2945.33, or determine how that law
should be applied by the state courts in the light of the
facts in a particular case. The Supreme Court said in
Townsend v. Sain, 372 U. S. 293, 311-12 (1963):
“The whole history of the writ * * * refutes a con-
struction of the federal courts’ habeas corpus powers
that would assimilate their task to that of courts of
appellate review.”
——
‘cc
77
The Court of Appeals stated:
“* * * Here again the District Judge placed re-
liance on cases the facts of which disclose their lack of
resemblance to the case before him and us. State v.
Adams, 141 Ohio St. 423, 48 NE (2) 861, 146 ALR
509 (1943); Emmert v. State, 127 Ohio St. 235, 187
NE 862, 90 ALR 242 (1933); and Mattox v. United
States, 146 U.S. 140, 36 L. Ed. 917 (1892). In State v.
Adams, a bailiff who had been told by the jury that it
could not agree said to them, ‘you can’t do that. You
must reach a decision if you have to stay here for
three months.’ In Emmert v. State, the officer in
charge of the jury remarked to certain jurors, ‘My
God, you are all wet. Judge Stahl expects you to re-
turn a verdict of guilty and if you don’t it will be just
too bad.’ Aside from this obvious inappositeness, these
Ohio cases were found not controlling of this case by
the Ohio Court. Mattox v. United States involved
direct review of a federal trial. Because the dissenting
opinion frequently cites Mattox to support its con-
clusions, we have set out in the margin Chief Justice
Fuller’s recital of the facts in Mattox because it dis-
closes a situation totally different from the facts of the
present case * * *.” (Pet. Appendix A, pp. s.52-
s.54.)
The Court of Appeals continued:
* * * The showing that communications were had
with the jurors, accordingly, is not of itself enough to
demonstrate a denial of due process. So in Near v.
Cunningham, 313 F. (2) 929, 933 (CA 4, 1963), the
court ruled that ‘should it appear that prejudicial
statements were made in the presence or hearing of
the jurors,’ the habeas corpus court must reach its
constitutional decision ‘in the light of all of the sur-
rounding circumstances.’ Here there is no pretense
at showing that prejudicial statements were made to
the jurors by their children or spouses. The pre-
78
sumption that the jurors remained true to their in-
structions is fortified by petitioner’s neglect of his
opportunity to show that the jurors chose this par-
ticular opportunity among many to violate their in-
structions. -In view of the absence of any attempt to
demonstrate or even claim such violations here, we
are satisfied that the Ohio Supreme Court correctly
disposed of this issue, and that in any event the occur-
rence does not present a denial of constitutional due
process.” (Pet. Appendix A, pp. s.55-s.56.)
The Supreme Court of Ohio in interpreting Section
2945.33, supra, in the light of the facts in the instant case,
was exercising appellate jurisdiction over state legislation.
Under Section 2945.83, infra, pp. 82-83, it must affirma-
tively appear from the record that these telephone calls
were harmful. There is no proof and none was offered on
the motion for new trial, that the calls were anything but
harmless.
V.
OTHER ALLEGED CONSTITUTIONAL VIOLATIONS.
The claims under this heading in the petitioner's brief
are unsupported by any findings by the District Court, and
to avoid needless repetition, we incorporate herewith by
reference, the argument we presented to this Court on
these various issues in our previous amicus curiae brief.
The petitioner’s brief makes reference to matters con-
cerning the possession of the home of the petitioner and
it is argued that a Dr. Paul Leland Kirk discovered a large
blood spot in the murder room that did not come from the
petitioner; that if the jury had had this evidence, they
would have acquitted.
Neither the record of the trial nor the affidavits in
support of the motion for new trial on the ground of newly
NMEA REORDER IIA BITRE NE LT WRU LIE its NB .
Net as o> Se bd eS ee a A oe £, Ce
79
discovered evidence disclose a single instance of a denial
of access to the premises for purposes of examination or
inspection by the defense.
It is also to be noted that the premises were available
for such inspection or examination from J uly 4th until the
middle of December when the cause was finally submitted
to the jury; that Dr. Kirk did not make his investigation
until January 22nd to January 26th, 1955, a month after
the Sheppard family had not only the keys but complete
possession of the premises.
The record of this case shows the extreme importance
of numerous articles of property within the home and a
number of such articles appear as exhibits in the evidence.
It was also necessary to continue the examination of the
premises for blood spots, fingerprints, etc., by the scientific
unit of the Cleveland Police Department. It was also
necessary to continue the examination and search in and
about the house for possible clues and particularly for the
still missing T-shirt and weapon. The whole episode in
the closing days of the trial, and the demand for the
keys to the home in the presence of the jury, was a grand-
stand play and show, and nothing else.
In the meantime, the petitioner and his counsel had,
on more than one occasion, visited the home, went through
all the rooms and examined the house, both inside and
outside.
The petitioner removed his medical bags and the
contents. He and the members of his family also removed
his clothing, his son’s clothing, and various other articles.
Also removed were his automobiles, consisting of a J aguar,
a Lincoln Continental and a jeep. Except for the Lincoln
Continental, all of these articles of property were removed
within a week or two following the murder of Marilyn
Sheppard and became unavailable for further examination
80
by the scientific unit of the Cleveland Police Department
when, at a later date, the case was turned over to them for
further investigation.
Vi.
SUFFICIENCY OF THE EVIDENCE.
This claim of the petitioner that the evidence on the
: trial was insufficient, was considered by the Court of
Appeals, and the Court said:
“One further subject should be briefly mentioned.
Dr. Sheppard’s petition claimed that the evidence
at his trial was constitutionally insufficient to justify
submitting the issue of guilt or innocence to the jury.
This claim was neither withdrawn nor sustained upon
the hearing in the District Court. On this subject,
the petitioner’s brief states,
‘The District Judge expressly declined to consider
this issue * * *, although in all fairness it should
be stated that counsel for petitioner-appellee on
several occasions offered to waive this claim of
error. * * * No waiver was required, however,
and the issue remains. This Court no doubt has the
power, since the trial transcript is before it as an
exhibit from the District Court to search the record
and conclude that the allegation of insufficiency is
well-taken.’ (Emphasis supplied.)
“We construe this as a suggestion that we pass
upon this point only if we find in his favor. Counsel
continues as follows:
‘Appellee neither asks nor urges such relief, for he
is ready, willing and anxious to stand retrial in any
community not infected with an envenomed atmos-
phere, and a favorable ruling upon this issue would
cause jeopardy to attach to the 1954 trial. This
is not, however, to be taken as any concession that
there was sufficient evidence to constitutionally
support a judgment of conviction in the first in-
es
81
stance, for we vigorously contend that there was
not. We simply do not press it at this time.’
“The Court of Appeals decision, affirmed by the
Ohio Supreme Court, fully discussed the evidence and
found it sufficient for submitting the issue of guilt to
the jury. 100 Ohio App. 345. No claim is made here
that that court’s detailed recital of the evidence ad-
duced at the trial is substantially erroneous. Without
attempting to assess petitioner’s actual guilt or inno-
cence, this recital clearly establishes that Dr. Shep-
pard’s conviction is not ‘so totally devoid of evidenti-
ary support’ as to constitute a denial of due process.
Garner v. Louisiana, 368 U. S. 157, 163 (1961);
Thompson v. City of Louisville, 362 U. S. 199 (1960) ;
Hall v. Crouse, 339 F. (2) 316 (CA 10, 1964).
“Petitioner apparently desires to save something
for a further entry into or a rehearing in the District
Court. We think that Ohio’s appeal has brought the
entire habeas corpus proceeding to us. We have passed
upon it and do not find any basis for the release of
Dr. Sheppard or the granting of a new trial.” (Pet.
Appendix A, pp. s.57-s.58. )
Vil.
THE AGGREGATION OF ERROR.
On this issue, the Court of Appeals appropriately said:
“Each of the ‘errors’ discussed above was found
by the District Judge to constitute a deprivation of
due process, but he concluded his opinion with the
observation that when taken together they reduced
the trial to a ‘mockery of justice.’ Without further
discussion, we are unable to attribute to a combination
of these several claims a constitutional potency they
lack individually. We have rejected the claims based
on publicity, alleged bias of the trial judge, and com-
munications with the jurors because no showing has
been made that anything improper in fact occurred;
we are no more willing to presume infirmity when
these claims and the matter of the lie detector evi-
dence are listed together than when they are con-
sidered separately,” (Pet. App. A, p. s.56.)
CONCLUSION,
The opinions of newspaper editors and newspaper
articles should not be received as a substitute for evidence,
nor as a substitute for the well-reasoned opinions of the
trial and reviewing courts based upon the record,
This case stood adjudicated on the merits when this
Court denied certiorari and denied a rehearing. Certainly,
habeas corpus should not be permitted to be used as an-
other appeal on the merits,
There was no interference by the news media with the
handling of this trial by the trial judge, nor did the State
trial judge deprive this petitioner of any constitutional
right on the trial itself.
As the trial record shows, there was no justification
for the retrospective application by the District Judge of
Rideau and Irvin, supra,
Section 2945.83 of the Revised Code of Ohio, govern
ing the state courts on review, provides:
“9945.83 (18449-5), When new trial shall not be
granted,
No motion fer a new trial shall be granted or Ff
verdict set aside, nor shall any judgment of conviction
be reversed in any court because of:
(A) Any inaccuracy or imperfection in the in F
dictment, information, or warrant, provided that the
charge is sufficient to fairly and reasonably inform the —
accused of the nature and cause of the accusation F
against him; :
(B) A variance between the allegations and the F
proof thereof unless the accused is misled or pre &
udiced thereby;
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(C) The admission or rejection of any evidence
offered against or for the accused unless it affirmative-
ly appears on the record that the accused was or may
have been prejudiced thereby;
(D) A misdirection of the jury unless the accused
was or may have been prejudiced thereby;
(E) Any other cause unless it appears affimative-
ly from the record that the accused was prejudiced
thereby or was prevented from having a fair trial.”
| This state statute is in conformity with the ruling of
this Court in many cases. As the Court of Appeals stated:
“Before examining in detail the nature of the
publicity given Dr, Sheppard's case, it is well to note
that he must carry the burden of demonstrating the
constitutional vice in his conviction, As stated by the
First Circuit in another publicity case, ‘the question
whether jurors are impartial in the constitutional
| sense is one of mixed law and fact as to which the
challenger has the burden of persuasion * * *?
Geagan v. Gavin, 292 F. (2) 244, 246 (CA 1, 1961),
cert. denied, 370 U. S, 903 (1962). This burden js
one which must be carried ‘ “not as & matter of specu-
lation but as a demonstrable reality.” ’ United States
ex rel, Darcy v. Handy, 351 U. S. 454, 462, 100 L, Ed.
1331, 1338 (1956) (emphasis supplied); Stroble v.
California, 343 U. S. 181, 198, 96 L. Ed. 872, 885
McCann, 317 U. S. 269, 281, 87 L. Ed. 268, 276
eR OR
“The facts of this case do not add up to any of the
situations in which the Supreme Court of the United
States or any United States Court of Appeals has
found it appropriate to strike down a judgment af-
firmed by the highest court of a state.” (Pet. App,
8.59.)
84
We respectfully submit that the judgment of the Court |
of Appeals should be affirmed.
Respectfully submitted,
Joun T. Corrican,
Prosecuting Attorney of Cuyahoga County, Ohio,
GERTRUDE BAvER MAHON,
Assistant Prosecuting Attorney,
Attorneys for the State of Ohio as
Amicus Curiae.
t Ae Pe ; FS he ss
eee
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.