Opposition Brief — Sheppard v. Ohio

Supreme Court brief1956

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Office - Suprame Court, U.

: ee ts fe

| BS) 1 1956

JOHN T. FEY, Clerk

In the Supreme Court of the United States

OCTOBER TERM, 1956.

No. 352.

SAMUEL H. SHEPPARD,

Petitioner,

vs.

THE STATE OF OHIO,

Respondent.

BRIEF IN OPPOSITION

TO PETITION FOR A WRIT OF CERTIORARI.

FRANK T. CULLITAN,

Prosecuting Attorney of Cuyahoga County,

Sau S. DANACEAU,

GERTRUDE BAvER Manon,

Assistant Prosecuting Attorneys,

Criminal Courts Building,

Cleveland, Ohio,

Attorneys for Respondent.

THE GATES LEGAL PUBLISHING CO., CLEVELAND, OHIO-——MAIN 1-5647

Ill.

VIL.

TABLE OF CONTENTS.

OBJECTIONS TO JURISDICTION __— ss

STATEMENT OF THE CASE

ARGUMENT . s : Pe ae he he Se PRS

Publicity Did Not Deprive Petitioner of His

Constitutional Rights Crees

I and II. Publicity did not prevent the petitioner

from having a fair trial -

Other Matters Set Forth In Application of Peti-

tioner Did Not Deprive Him of Due Process of

Law, Nor, When the Facts and Proceedings Are

Correctly Stated, Was There ies Error in the

Rulings of the Court

As to Juror Manning (Pet. Br. 50-52) and his

replacement by the alternate juror

. Conduct of the bailiffs in permitting jurors to

telephone members of their families between

deliberations (Pet. Br., pp. 52-54)

. On the claim that the authorities seized the home

of the petitioner (Pet. Br., pp. 54-56)

. All of the claimed violations of the petitioner's

constitutional rights to a fair trial were passed

upon by the Supreme Court

The petitioner claims that the Supreme Court of

Ohio was an illegally constituted court at the

time the court heard this case

SUMMATION

Sy)

TABLE OF AUTHORITIES.

Cases.

Craig v. Harney, 331 U.S. 367 ------_----

Emmert v. State, 127 O. S. 235 ~

= oe

Holt v. United States, 218 U. S. 245, 54 L. Ed. 1021,

31S. Ct. 2, 20 Ann. Cas. 1138 -

Maryland v. Baltimore Radio Show, 338 U. S. 912

State v. Joseph, 90 O. A. 433 -. _---------.

United States v. Handy, 351 U.S. 454. __.

Annotation.

BAL Eh oh Ue.

Constitution.

Ohio Constitution, Article IV, Section 2 _-

Statutes.

Ohio Revised Code:

I a sas caer

Section 2945.29

Section 2945.83 ___

Shy)

In the Supreme Court of the United States

OCTOBER TERM, 1956.

No. 352.

SAMUEL H. SHEPPARD,

Petitioner,

VS.

THE STATE OF OHIO,

Respondent.

BRIEF IN OPPOSITION

TO PETITION FOR A WRIT OF CERTIORARI.

To THE HoNoRABLE CHIEF JUSTICE AND THE ASSOCIATE

JusTICES OF THE SUPREME CourRT OF THE UNITED STATES:

OBJECTIONS TO JURISDICTION.

The State court has not decided a federal question of

substance not theretofore determined by this Court, nor

has the State court decided any question in a way not in

accord with applicable decisions of this Court. No real nor

substantial federal question is involved herein.

The claims of petitioner that he was denied his con-

stitutional rights are based entirely on faulty assumptions

or wild assertions, or on misstatements made pertaining

to the proceedings and to the evidence. When the same

misstatements were made on the motion for new trial, the

trial court found it necessary to state:

“The court has deemed this memorandum neces-

sary due to some statements made by counsel for the

defense during trial and repeated or enlarged in said

motion. Some are not factually true and some others

create or tend to create impressions not representative

of the true situation.” (Pet. App., pp. la-2a.)

We readily concede that there was widespread pub-

licity, all of which was noted by the trial and reviewing

courts. But the claims that either the jury or judge were

influenced in the trial of the case by news media or by

anything other than the evidence received in open court

are groundless and unsupported by the record. And a fair

and objective examination of the record will disclose that

the news media did not slant their stories to prejudice or

to convict the petitioner.

Counsel for the petitioner refer to certain newspaper

articles and headlines which were later submitted as Ex-

hibit No. 1 on the motion for new trial. Neither the news-

papers nor the headlines were evidence in the trial of the

case and counsel’s assertion that during the trial the jury

were reading these newspapers is nowhere supported in

the record. In various places in the petitioner's brief,

reference is made to newspaper articles and headlines,

none of which were received in evidence on the trial of

this cause. The fact that they were offered and received

in evidence before and after trial on the various motions

made by counsel for the petitioner does not make them

evidence considered by the jury in the trial.

Of a certainty, there is in the record no proof, no

“demonstrable reality” that either the jury or the judge

were influenced in the trial of this case by anything ex-

cept the evidence presented in open court and the law

applicable thereto. The petitioner was tried by a fair and

impartial jury who were properly instructed at all times by

the court and rendered their verdict after careful and

conscientious deliberations. The petitioner was fairly tried

and properly convicted.

Counsel for the petitioner not only conducted a

searching voir dire examination, and did not exhaust his

peremptory challenges, but 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 de-

prived, probably, of many comforts that you ordinar-

ily 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 Bly-

thin.

“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 con-

sideration all the facts and all the testimony that has

been submitted to you without any outside influence,

and I am sure, and I say this to you sincerely, because

I have had the opportunity of observation during this

entire period, that you have done just that.” (R. 5371-

py Bs

During the impaneling of the jury. the progress of

the trial. the instructions of the court and the summations

of the attorneys, the jurors were repeatedly told that this

cause was to be decided solely on the basis of the evidence

presented in open court and on the law given them by the

judge, and on nothing else. Each juror agreed that he or

she would disregard everything other than the evidence

and would. in conformity with the instructions of the

court, render a fair and impartial verdict. It is to be noted

that a fair and impartial jury was impaneled and that the

defense did not exhaust their peremptory challenges. The

jurors took the oath required by law and there is not a

* Typewritten record. Original Bill of Exceptions filed in

Washington.

shred of evidence in the record 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 to

show that the jury was in any way influenced by reports

or steries in newspapers, over the radio, or on television;

or that the jury or any juror was biased or prejudiced by

any such stories or broadcasts.

The laws of the State of Ohio provide for a motion

for new trial and upon the hearing of that motion, the

affidavits and testimony of the jurors may be received.

Emmert v. State, 127 O. S. 235; State v. Joseph, 90 O. A.

433. Although several jurors were subpoenaed and were

thoroughly interrogated by defense counsel on the hear-

ing 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 pro-

duced in open court in reaching their verdict. The claim

that they were influenced by news stories or any other out-

side influence is merely the assertion of counsel. It is not

supported by the record.

The trial and proceedings on review were had in ac-

cordance with the provisions of the statutes and Constitu-

tion of the State of Ohio and in full conformance with the

provisions of the Federal Constitution.

STATEMENT OF THE CASE.

The extraordinary excursions in petitioner’s brief to

newspaper stories and editorials published before, during

and after the trial, as though they were before the jury as

evidence in the case, and the omission by the petitioner

of almost all of the pertinent evidence presented by the

State in this case, necessitates our directing the attention

of this Court to an objective statement of much of the evi-

dence as set forth in the opinion of the Court of Appeals

of Cuyahoga County, appearing at pages 41a to 67a of

the Appendix to the Petition.

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 4, 1954; that at the time she was mur-

dered the only person in that home, except a six year old

son, was her husband, the petitioner. It was conclusive

from the evidence that there was a simulated burglary and

that nobody but the petitioner had the time and the op-

portunity to fake such a burglary to divert suspicion from

himself. The fantastic stories told by the petitioner were

so unreasonable and absurd as to be, in the opinion of

the jury, unworthy of credence.

After giving “a summary of much of the evidence

dealing with many of the physical facts and conditions

of the premises as found on July 4th and of the declara-

tions 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” (66a

of the Appendix to the Petition), the Court of Appeals

then continued:

“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 im-

probable. During the time he was under cross-exami-

nation the defendant gave evasive answers such as

‘I can’t recall’ or ‘I can’t remember,’ approximately

216 times to questions concerning facts and circum-

stances that took place in his claimed presence mate-

rial to the issues in the case.

“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 circumstan-

tial evidence. The law of Ohio on this subject re-

quires that the facts and circumstances upon which

the theory of guilt is based must be established be-

yond 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. 193.

“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 dis-

charged, but if the jury found, after full deliberation,

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 guiity

as found by the jury.” (Appendix to the Petition

66a-67a. )

ARGUMENT.

PUBLICITY DID NOT DEPRIVE PETITIONER OF HIS

CONSTITUTIONAL RIGHTS.

I and II.

Publicity did not prevent the petitioner from

having a fair trial.

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 for a continuance:

“(3) Denial of change of venue requested by de-

fendant. The request, when made, was based upon

the claim that the extraordinary public attention

centered upon the case in this county by the various

media of news made the securing of a fair and impar-

tial jury in this county impossible. It is a matter of

common knowledge that the case commanded that

same attention throughout Ohio and the United States

of America. It commanded very much attention

throughout the free world. Chief counsel for the de-

fense conceded and asserted this to be a fact and stated

fervently 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 defendant

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 actu-

ally were. With present-day means of communica-

tion the same precise stories were simultaneously pub-

lished 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 preju-

dice were involved in this cause. No issue of race,

corruption, killing an officer, or the like, was involved

—what actually was involved was a mere mystery—

a ‘whodunit.’ The only safe and sure way to deter-

mine whether a fair and impartial jury can be secured

is to proceed to impanel one. The court reserved rul-

ing on the motion pending such an effort and became

convinced, and is still convinced, that an intelligent,

sincere, patriotic and fair jury was impaneled. Upon

that being accomplished the court overruled the mo-

tion 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 defendant, 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.

“(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

following 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 extraordi-

nary publicity to quiet down.” It was not claimed that

counsel were not prepared for trial nor was any sug-

gestion made as to who was going to ‘quiet down’ the

publicity, nor when nor how.” (Pet. App. pp. 2a-4a.)

In the opinion of the Supreme Court of Ohio, Judge

Bell stated:

“Murder and mystery, society, sex and suspense

were combined in this case in such a manner as to

intrigue and captivate the public fancy to a degree

perhaps unparalleled in recent annals. Throughout

the preindictment investigation, the subsequent legal

skirmishes and the nine-week trial, circulation-con-

scious editors catered to the insatiable interest of the

American public in the bizarre. Special seating facili-

ties for reporters and columnists representing local

papers and all major news services were installed in

the courtroom. Special rooms in the Criminal Courts

Building were equipped for broadcasters and tele-

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

the news media, Sam Sheppard stood trial for his

life.” (Pet. App., pp. 85a-86a. )

The reference by the Ohio Supreme Court to the

words “Roman holiday” merely describes the widespread

publicity furnished by the news media to the public at

large and had no reference to the conduct of the trial it-

self, nor to the proceedings in the courtroom. The expres-

sion is also used to mean a “good time” or “field day.”” It

by no means follows that the news media slanted the news

or even tried to do so to prejudice or to convict the peti-

tioner. 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 widespread

publicity. The news media were interested in stories for

the public and cared not whether such stories favored the

State or the defense. A fair and objective analysis of their

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.

The defense have submitted a wholly distorted picture

of the arrangements made by the court before trial to gov-

ern the news media which were to “cover” the trial. (Pet.

Br. pp. 38-40.) (Pet. App. pp. 17la-172a.) For a fair

and objective statement pertaining to such arrangements,

we direct the attention of this Court to the words of the

trial judge in his memorandum 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. 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 from many of

them, the Court decided to make proper arrangements

before trial and to control the situation so as to

minimize and, if possible, eliminate confusion during

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 en-

trances (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 mov-

ings out of the court room be via the public doorway

in the rear of the court room. Members of the de-

fendant’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 admitted 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 rep-

resentatives 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 pic-

tures of the defendant to be taken in the court room

at any time excepting with his consent or that of his

counsel. o4

“The Court’s arrangements and orders were car-

ried out with one or two simple insignificant excep-

tions, due to overenthusiasm. 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 counsel

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.

“Jurors were flash-photographed in their comings

and goings and it is difficult to know how that can

be prevented even if, indeed, it should be. Jurors

are human beings and become citizens of special im-

portance when undertaking a signal public service.

Not a single complaint was registered by any juror

in this connection and it is worthy of note that the

defense does not even claim that any juror was af-

fected 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 preju-

dice for or against either the State or the defendant,

but matters of news interest to newspapers. They

remain wholly neutral if fed sufficient news or pic-

tures of interest.

‘Some space outside of the court room which could

be spared for the moment without interference with

the public service was used by publicity agencies for

their typewriters and other equipment but it is defi-

nitely 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 period of

the trial of this cause. One of the real purposes 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 leading to the

court room and permitted free movement of the pub-

lic and visitors within the building, whether there in

connection with this case or otherwise, wholly un-

affected by the Assignment Room space activity.”

(Pet. App., pp. 7a-9a.)

It is pertinent to ask: What caused the publicity, and

who brought it about?

Marilyn Sheppard was murdered—there 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. A protective shield

was immediately thrown around the petitioner. The of-

ficials of Bay Village, close personal friends of the peti-

tioner who was their police surgeon, sat on their hands and

were getting nowhere. 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, such criticism

of public officials not being the exclusi~ prerogative of

defense counsel. These incidents occurred in July and the

trial did not begin until the 18th of October.

There was no assurance that the publicity would not

continue if a motion for a continuance was granted. Fur-

ther, 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 defendant in

a criminal case is entitled to a speedy and 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, in view of the Constitu-

tional provision, to delay the trial indefinitely, otherwise

the petitioner could be heard to complain that his con-

stitutional right to a speedy and public trial was violated.

It is not within our province to explain or defend

anything that appears in any newspaper, favorable or un-

favorable. That there was a tremendous amount of interest

in this case, not only throughout our own community, but

throughout the state and nation, and in other parts of the

world, is not in dispute. It does not follow, however, from

the mere fact that this murder mystery fascinated so many

people, that the petitioner was prevented from having a

fair trial or that any of the petitioner's constitutional rights

were violated.

Petitioner has seen fit to set forth what purport to be

newspaper headlines. (Pet. Br. pp. 20, 21.) Selected were

certain headlines, which, by and large, merely reflected

the great interest of the public in the murder mystery and,

of course, deliberately omitted were particular headlines

that tend to contradict his assertions. Petitioner does not

set forth the headline on the front page story in the Cleve-

land 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 does he 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, furnished the Press by a member

of his family, and above the headline is an enlarged photo-

graph of the last paragraph of the statement, followed by

the signature of the petitioner, and reading:

“IT AM NOT GUILTY OF THE MURDER OF MY WIFE,

MARILYN. HOW COULD I, WHO HAVE BEEN

TRAINED TO HELP PEOPLE AND DEVOTED MY LIFE

TO SAVING LIFE, COMMIT SUCH A TERRIBLE AND

REVOLTING CRIME?”

Nor does petitioner list the headlines of the statements

issued by Attorneys William J. Corrigan and Fred W.

Garmone, such as the one appearing in the Cleveland

Press of August 27, 1954, reading:

“SHEPPARD LAWYERS HIT STORIES ON MURDER

followed by the text of the long statement so issued.

The defense also might have included other headlines

as follows:

July 8, 1954, The Cleveland Press:

“DR. SHEPPARD’S STATEMENT ISSUED TO ANSWER

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 HOSPITAL

TO TREAT HIS PATIENTS”

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 ARREST

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 SUSPECT

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”

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, 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 FEEL-

INGS”

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”

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 Cleveiand 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:

“SCHOTTKE 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 REFCORTER”

During the trial most of the publicity was given out

by the defense. As a former newspaper man, defense

counsel knew very well how to get favorable stories in the

public press, and he was quite successful. He held press

conferences daily, and frequently more than once each day;

and, with his client, posed for hundreds of pictures which,

together with favorable personal stories, appeared in all

types of news media. The amount of publicity so put out

by the defense was enormous, and far outshadowed the

attention given the State. Defense counsel found that by

continually denouncing 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. 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. The bales of news-

papers offered by the defense in support of their motions

show these favorable personal stories and the innumerable

photographs for which the petitioner and his counsel posed.

Mr. Corrigan also demonstrated his accomplishments

as an actor by pretending to object to the pictures and

reading his objection into the record. The photographs

themselves, and the stories which accompanied them, show

complete acquiescence and pleasure. That the objection

made for the record was without justifeation and mere

pretense is proved by the testimony of Julian Wilson dur-

ing the hearing on the motion for new trial. Mr. Wilson

was a photographer for the Associated Press, assigned to

this trial, and testified that he made many pictures of Dr.

Sam Sheppard and considerably over a hundred of Mr.

Corrigan (R. 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 of 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.

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.

>OPOPO>OD

Q. 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 permission?

A. Somewhere around 15, 20, 25.

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 pic-

tures 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.’ (R. 7087-7091.)

It is obvious from the record that Mr. Corrigan’s ob-

jections, if any, were quite pro forma and mere pretense.

Counsel for the petitioner applied for a continuance

of the trial to “permit the extraordinary publicity to quiet

down.” The trial did not start until October 18th and

counsel for the petitioner had been engaged in the case

within hours following the crime on the 4th of July. 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.” (Pet. App. p. 4a.) This application was there-

fore properly overruled.

There is no question but that there was a great deal

of public interest in this case. It should not be necessary

to point out that newspapers have a constitutional right to

report events in the community and to criticize what ap-

pears to them to be laxity on the part of public officials.

Defense counsel have seen fit to devote a considerable

portion of their brief to criticism of public officials; surely,

the newspapers have an equal right. The Trial Court put

it very succinctly when he stated in ruling upon the motion

for new trial:

“It is to be noted that not a single person or agency

connected with the investigation of, or prosecution,

for the crime involved escapes the anathema of the

defense. These include the police, the Coroner, his

assistants, the prosecuting attorney and his aides, the

State’s witnesses, the Grand Jury, its foreman, the

trial jury, the public, the bailiffs and the Court. The

sense of search for truth and the declaration of justice

seems to have vanished from a whole community as if

by magic and overnight.

The news agencies of every kind and character

are thrown in for good measure. In spite of all the

charges made, not a single specific item is cited in

support of the claims made. Only broad generalities

are indulged in. Reviewing courts will, we hope, have

the duty of passing on all the legal questions involved

and appearing on the record, and unless it is shown

in very clear fashion that some extrinsic forces plowed

through the effort to grant the defendant a fair trial,

and succeeded in disrupting that effort, it is fair to

assume that none did.” (Pet. App. pp. 15a-16a.)

There is a comparatively recent decision of the Su-

preme Court of the United States which states succinctly

the right of the people. In Craig v. Harney, 331 U. S. 367,

374, the Court said:

“A trial is a public event. What transpires in the court-

room is public property * * * Those who see and

hear what transpired can report it with impunity.

There is no special perquisite of the judiciary which

enables it, as distinguished from other institutions of

democratic government to suppress, edit or censor

events which transpire in proceedings before it.”

The right of the people in this respect was recognized more

recently in the opinion of Mr. Justice Frankfurter, in

Maryland v. Baltimore Radio Show, 338 U.S. 912, 920:

“One of the demands of a democratic society is that the

public should know what goes on in courts by being

told by the press what happens there, to the end that

the public may judge whether our system of criminal

justice is fair and right.”

The only question with respect to the motion for

change of venue was, could a fair and impartial jury be

impaneled in this community, where the offense occurred?

The question was answered by the impaneling of the jury.

A fair and impartial jury was impaneled, even though the

defense did not exhaust their peremptory challenges, either

as to the first 12 jurors or as to the alternate jurors.

As stated in the opinion of the Supreme Court of

Ohio in this case:

“At the outset of the trial, in response to defend-

ant’s motion for change of venue, the trial court said:

‘The motion for change of venue will be held in

abeyance, and we will proceed at 1:15 this after-

noon 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.’

“At the conclusion 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 in a picture

that has taken almost two weeks of time. The court

is thoroughly satisfied that we have here a fair and

impartial 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 people 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

we 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

motion.

“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 opinion in 88

Ohio St. 584, 106 N. E. 1083, it is said:

‘The examination of jurors on their voir dire

affords the best test as to whether or not prejudice

exists in the community against the defendant; and

where it appears that the opinions as to the guilt

of the defendant of those called for examination

for jurors are based on newspaper articles and that

the opinions so formed are not fixed but would

yield readily to evidence, it is not error to overrule

an application for a change of venue.’

“For example, in Richards v. State. 43 Ohio 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 sys-

tem 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

a change of venue by the trial judge constituted an

abuse of discretion.” (Pet. App. pp. 87a-89a.)

The process of impaneling the jury demonstrated the

wisdom of the foregoing rules and there was no unusual

difficulty in securing a fair and impartial jury. The analy-

sis of this process is briefly stated in the opinion of the

Court of Appeals 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 counld 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

defendant, is entitled to six such peremptory chal-

lenges 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

ern tag

analysis of the venire of 75 electors called in this case,

four of those called were not needed in impaneling 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.

“The parties agreed to select two alternate jurors

as provided by Sec. 2313.37 R. C. The four remain-

ing jurors of the original list, together with an addi-

tional 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

alternate jurors. Of those examined, three were ex-

cused for holding a firm opinion of the guilt or in-

nocence of the accused, four were excused as being

against capital punishment, one was excused on chal-

lenge for cause and each side used one peremptory

challenge. (Each side had the right to excuse two

prospective alternate jurors peremptorily under the

provisions 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.

“The jury having been impaneled as provided by

law and sworn to afford the defendant a fair and im-

partial trial, and to come to its verdict by a considera-

tion of the evidence submitted in open court without

any outside influence or consideration, and where

there is no claim of misconduct on the part of any

member of such jury during the trial, there can be

no ground to claim a mistrial because of continued

publicity, publicizing the events of the trial, and

other related matters.” (Pet. App. pp. 34a-36a.)

In their discussion on publicity and the fact that a

number of jurors had read about the case before their

voir dire examination, Juror Barrish is mentioned (Pet.

Br. p. 35) 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 petition and the de-

fense omit to state that they accepted Juror Barrish by

passing him for cause (R. 115) and that they had per-

emptory challenges which they chose not to exercise.

The fact that prospective jurors had read something

about the case before they were sworn as jurors did not

necessarily disqualify them. We know of no principle of

law which excludes such jurors from service merely be-

cause they had previously read or heard something about

the case. The persons who could hear the evidence with-

out bias or prejudice and could decide the issues fairly

and impartially were seated. Those who could not, were

excused.

The defense try to make capital out of the efforts to

solve this murder, especially in the weeks following July

4th. Naturally, the public authorities would check out

every tip, good or bad. The same may be said for the

newspapers, and if the petitioner and his lawyers pursued

a course of conduct that was not in accord with protesta-

tions of innocence, comment by newspapers and others

was inevitable.

The mere suggestion that the petitioner, who was

protesting his innocence, submit himself to certain tests

(Pet. Br. pp. 22, 23) deprived him of no constitutional

right nor prevented him from having a fair trial. He was

not forced to take any test and he did not submit to any

test. Also discussed by petitioner under the subject mat-

ter of publicity is the evidence received with respect to

the conversations had with the petitioner on the question

of the lie detector test.

When the subject of the lie detector was first pre-

sented in the questioning of Officer Schottke and he re-

lated the conversation he had had with the petitioner per-

taining to the lie detector, no objection was made to the

admission of those conversations (R. 3590).

The trial court instructed the jury that a person is

not compelled to take a lie detector test (R. 3852). The

petitioner himself on direct examination in response to

questions asked by his counsel, Mr. Corrigan. related his

conversations with Officers Schottke and Gareau pertain-

ing to the lie detector test (R. 6298-6299).

In the argument to the jury, defense counsel said:

“And then during the course of that conversation

he (Officer Schottke) says. ‘Are you willing to take

a lie detector test?’

“And what was the answer that this man gave”

He says. ‘Iam.’ (Record, pp. 5376-77.) *

Such a claim in the argument was, of course. wholly un-

justified in the light of the testimony of Officer Schottke

and Deputy Sheriff Rossbach. who were continually put

off by the petitioner and the petitioner never did take the

test. The statement of petitioner in the brief that there

was objection to these conversations is entirely untrue

(R. 3590).

The police and other public authorities are severely

criticized for trying to obtain a “confession” from the

petitioner. (Pet. Br. pp. 29-31.) What is unconstitutional

about the police endeavoring to secure a confession? No

*Typewritten Record. Original Bill of Exceptions filed in

Washington.

one laid a hand on the petitioner and the most that can be

claimed is that some officer used some bad words.

Much is made of the use of the words “third degree”

in a newspaper editorial, but it should be remembered that

that expression is frequently applied to a thorough inter-

rogation and does not at all necessarily mean the use of

force or violence. In any event, there was no force or

violence used. Defense counsel must have been fearful

that a confession might have been obtained. How else can

they explain the extraordinary effort they made to prevent

the petitioner from being interrogated except by friendly

officers under stipulated conditions? How else can they ex-

plain their “sit down strike” in the county jail on Sunday,

August Ist, 1954, when counsel appeared at approximately

8:15 o'clock in the morning and, by alternating one with

the other, remained with the petitioner until afternoon, to

prevent the interrogation of their client by the officers who

were obliged to cool their heels downstairs during the en-

tire period of time? And when the sheriff, noting that

counsel was merely reading a newspaper, requested the

attorneys to leave, the defense bitterly assailed him, charg-

ing him with violations of law and of the constitution.

They even saw fit to make charges against the sheriff to

the Bar Association and at a subsequent hearing thereon

before the bar committee, counsel who made the charge

did not even extend to them the courtesy of an appearance.

We should also note that later that same Sunday, after

some police officers had futilely interrogated the petitioner,

they were asked to leave by the sheriff in order that he be

revisited by Messrs. Corrigan and Petersilge. The officers

got nowhere in trying to question the petitioner and no

confession was obtained. So what point is there in dwelling

upon the subject matter of “confession”?

The defense also dwell on newspaper editorials critical

of the progress that was being made in the solution of this

horrible crime (Pet. Br. p. 24). It must be remembered

that the Mayor of Bay Village was a close personal friend

of the defendant, 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 permis-

sion before the Coroner or any of the Cleveland police of-

ficers arrived; that a protective shield was thrown around

him and that the defendant and his counsel would permit

no interrogation except under their own terms and by

designated friendly officers; and that the defendant and

his counsel were obstructing the public authorities in what

should be the normal investigation of a murder. It seemed,

at least to the newspaper editors, that certain public offi-

cials were “sitting on their hands” and were fearful, for

one reason or another, of proceeding vigorously in the in-

vestigation as they would in any other case. Certainly,

these newspapers have a right to criticize what they deem

to be laxity on the part of public officials. It is a right given

them by the same constitution which assures the defendant

a fair trial by jury. Whether we or defense counsel agree

or disagree with the opinions expressed by the newspaper

editors is entirely beside the point.

The defense refer to the inquest held in the school

auditorium in Bay Village and again proceed to distort the

nature of the proceedings and what occurred (Pet. Br. pp.

24-26). 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 ap-

peared, and that the reason it was held in Bay Village was

that most of the witnesses lived there and it would be con-

venient for them. Also untold is the fact that the hearing

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 Shep-

pard was recalled to testify further. It was brought about

by Mr. Corrigan, counsel for petitioner, who sought to

direct the reporter to insert certain matter into the record.

Mr. Corrigan was told not to do so and was cautioned that

if he persisted, he would be asked to leave. He not only

persisted, 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 author-

ity of the Coroner to put him out. The Coroner had no

alternative 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 22nd, 23rd and 26th and there was at

that time no indictment of the petitioner. The indictment

came later, and the trial did not start until October 18th.

The disturbance at the inquest which Mr. Corrigan created

has no possible bearing on the trial of this case, nor did it

prevent the defendant from having a fair trial.

The petitioner states that he was taken from the jail

and subjected to personal indignities (Pet. Br. p. 31). This

is completely without foundation in fact. The defendant

had complained of injuries and he was taken to the Cleve-

land City Hospital where he was given a complete and

thorough physica! examination. Nowhere in the testimony

of the petitioner himself does he assert that he was abused

by the doctors. The procedure of “pricking a patient with

a pin” is merely to test the patient’s reflexes and there is

nothing abusive in this practice, so commonly used.

The petitioner dwells on various matters (Pet. Br. pp.

32, 34) preliminary to this trial, including his own applica-

tions for writs of prohibition, habeas corpus, etc., all of

which have no bearing whatever on the trial of this cause.

On page 34 of the petitioner’s brief, it is asserted that

the indictment was the result of pressure on the Grand

Jury. This statement is based solely on an expression of

the foreman, Mr. Winston, that “pressure on us has been

enormous.” The complete answer of the foreman explain-

ing 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 by

defense counsel, to indict the petitioner.

Complaint is made (Pet. Br., pp. 40-41) relative to

the part taken by the Trial Court in a Fabian television

program on the steps of the Court House. The trial judge,

on one morning, walked toward the Court House steps

as usual, and there saw Robert Fabian (a retired Super-

intendent of Scotland Yard) with a very small contraption

in his hand. Mr. Fabian said, “Good morning, Judge

Blythin, nice morning.” The judge said, “Good morning,

Mr. Fabian.” (Pet. App., pp. 13a-14a.) There was no con-

versation of any kind about the case on trial or any other

subject.

At pages 41-42 of the petition, the defense recount

the incicent of a newspaper reporter visiting the home of

Lois Mancini, an interview with Mrs. Mancini’s mother,

husband and children, and of the pictures taken of the

members of the family, together with a story of the diffi-

culties of the family while the mother was serving on the

jury. There may be some question as to the good taste of

such a story, but in any event it did not favor one side or

the other and was entirely without prejudice to the defend-

ant. Furthermore, Lois Mancini was not present during

the visit of the reporter and did not participate 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 urged that during the trial there was a broadcast

by Walter Winchell (Pet. Br. p. 42), in which he related

the story of a woman in New York who claimed she had

been a mistress of Sam Sheppard. At the request of de-

fense counsel the court inquired of the jurors whether they

had heard this Winchell broadcast and two jurors re-

sponded 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:

“I do hope, ladies—I would like to ask if any of

you know if any members of your families heard the

broadcast?

“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.” (R. 5429-30.)

Urged for the first time in the Supreme Court of Ohio

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 testi-

mony in the Sheppard case (Pet. Br. p. 41). 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 pe-

titioner, 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 stating 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 at-

tendance at the trial. When the court stated: “We are not

going to harass the jury every morning,’ Mr. Corrigan

then responded, “I can’t help it, Judge. If you don’t, that’s

ali right with me. I make my exception.” (R. 3725.)

Upon the hearing on the motion for new trial and

even though several of the jurors had been subpoenaed,

the defense produced not a word of testimony to support

their present claim that the jurors heard this broadcast.

There is in the record not one particle of evidence that any

of the jurors were influenced by this broadcast or the so-

called Winchell broadcast or by anything else other than

the evidence produced in open court.

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 broadcast

such as the Considine broadcast, is affirmed by the annota-

tion in 15 A. L. R. (2) 1152, wherein it is stated:

The present annotation is concerned with the

questi, of whether, during a criminal trial, the jurors

may Ye interrogated or polled as to whether they have

rea@’ jewspaper articles pertaining to the alleged

crime or the trial. As the title indicates, the annota-

Hon Ma volves the propriety of interrogation or polling

after impanelment, as distinguished from that which

occur: on voir dire examination.

‘

“The few cases that involve this specific point all

upholy the trial court where it refuses to interrogate,

or rehises to let a party interrogate, the jurors as to

the reading of newspaper articles relating to the trial

or thé crime. The decisions generally turn on the fact

that the trial court had instructed the jury not to read

the ticles or that there had been no showing by the

MOVIhs party that the jurors had in fact read them.”

Compjaint is made that the jurors were photographed

on several occasions and “during deliberations” (Pet. Br.,

p. 44). It is of course, not the fact that they were photo-

graphed quring deliberations.

On the motion for new trial, the trial court stated:

“Jurors were flash-photographed in their comings

and §oings and it is difficult to know how that can be

prevented even if, indeed, it should be. Jurors are

human beings and become citizens of special im-

portance when undertaking a signal public service.

Not 4 single complaint was registered by any juror in

this eonnection and it is worthy of note that the de-

fensé 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 ex-

posures to public attention are not matters of preju-

dice for or against either the State or defendant but

matters of news interest to newspapers. They remain

wholly neutral if fed sufficient news or pictures of

interest.” (Pet. App., pp. 8a-9a.)

The Trial Court stated further 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 judg-

ment, that not a suggestion of influence upon the jury

is forthcoming from any person or agency. Inter-

ference 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 ask ourselves what becomes of our faith in our

decent 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 mo-

mentary 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

‘separation’ is stretching the imagination to a danger-

ous point. It certainly is not the separation prohibited

by law and is hardly worthy of serious thought or

comment.

“The Court had complete confidence in the jury in

this case; it was protected at all times from any pos-

sible approach, and its every movement and conduct

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.” (Pet.

App. 12a-13a.)

Much is made at pages 45-46 of the petitioner’s brief

of “Disorder During the Trial.” Counsel complains that

there were instances of disorder, noise and laughter in the

court room. It should be remembered that this trial con-

tinued 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. There are, of

course, the inevitable traffic noises on East 21st Street in

Cleveland which result in short delays or repetition of the

questions.

As to the incident of the laughter to which Mr. Cor-

rigan refers (Pet. Br., p. 46), it resulted from Mr. Cor-

rigan’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.

Counsel complains of the presence and conduct of

unnamed persons in and about the court room and cor-

ridors during the five days in which the jury was deliber-

ating in their jury room (Pet. Br., p. 49). If the unnamed

persons interested in the outcome of the trial, whether

they be newspaper men, counsel for the defendant, the

defendant’s brothers, Dr. Steve Sheppard and Dr. Richard

Sheppard, their respective wives and friends or other

spectators, milled around during the five days, or if some

of them played cards during the long wait, we fail to see

how that in any way influenced the jury in its delibera-

tions or had any bearing on the verdict. There is not a

scintilla of evidence in the record that the jury was dis-

turbed or influenced by any of the activities in the court

room or in the corridors while they were in their jury

room during their deliberations.

Petitioner has presented nothing by way of affirma-

tive evidence to show that the court or jury had been im-

properly influenced by publicity or anything else. The

burden is upon them to do so. Section 2945.83 of the Re-

vised Code of Ohio, governing the state courts on review,

provides:

“No motion for a new trial shall be granted or

verdict set aside, nor shall any judgment of conviction

be reversed in any court because of:

x ok OR

“(C) The admission or rejection of any evidence

offered against or for the accused unless it affirma-

tively appears on the record that the accused was or

may have been prejudiced thereby;

x ok x

“(E) Any other cause unless it appears affirma-

tively from the record that the accused was preju-

diced thereby or was prevented from having a fair

trial.”

This rule in Ohio is in conformity with the ruling of this

Court as expressed in United States v. Handy, 351 U. S.

454:

“While this Court stands ready to correct viola-

tions of constitutional rights, it also holds that “‘it is

not asking too much that the burden of showing essen-

tial unfairness be sustained by him who claims such

injustice and seeks to have the result set aside, and

that it be sustained not as a matter of speculation but

as a demonstrable reality.’

Sennen HE Gt

“See also, Adams v. United States, 317 U. S. 269,

281, 87 L. Ed. 268, 276, 63 S. Ct. 236, 143 ALR 435.

Buchalter v. New York, 319 U.S. 427, 431, 87 L. Ed.

1492, 1496, 63 S. Ct. 1129; Stroble v. California, 343

U.S. 181, 198, 96 L. Ed. 872, 885, 72 S. Ct. 599.”

This Court pointed out in the Handy case that Justice

Holmes, speaking for a unanimous Court in Holt v. United

States, 218 U.S. 245, 251, 54 L. Ed. 1021, 1029, 31 S. Ct.

2, 20 Ann. Cas. 1138, cautioned that:

“If the mere opportunity for prejudice or cor-

ruption is to raise a presumption that they exist, it

will be hard to maintain jury trial under the condi-

tions of the present day.”

OTHER MATTERS SET FORTH IN APPLICATION OF PE-

TITIONER DID NOT DEPRIVE HIM OF DUE PROCESS

OF LAW, NOR, WHEN THE FACTS AND PROCEEDINGS

ARE CORRECTLY STATED, WAS THERE ANY ERROR

IN THE RULINGS OF THE COURT.

III.

As to Juror Manning (Pet. Br. pp. 50-52) and his

replacement by the alternate juror.

After Juror Manning was seated and sworn as a juror,

a young man came to the Criminal Courts Building, talked

to counsel for the defendant first and later to the Prose-

cutor, and informed them that Juror Manning had been

arrested and convicted of a morals offense relating to a

young man. The matter was also brought to the attention

of the Court. Manning neglected to make this conviction

known when he was asked on the voir dire examination

whether or not he had ever appeared as a witness in any

case. The matter became known generally and received

considerable publicity. A meeting was held in chambers

and by common consent the matter was continued over

the weekend. Counsel for the defense thereafter proposed

that he would consent to the discharge of Juror Manning

if the entire panel was discharged and we would proceed

to re-impanel the jury. This proposal was declined by the

State.

After the alternate jurors were impaneled, Juror Man-

ning addressed himself to the Court in open court and

stated:

“Juror Manning: Right now, I mean from what is

going on, when I came down here for jury duty I

thought I was doing what a public spirited citizen of

this country would do. That’s the only idea I had

when I came down. It interfered with my work, my

earning a living. I didn’t give a second thought to

that. I came down here, and if I was chosen, I would

serve and serve in the way I spoke, absolutely un-

biasedly. And I was—I tried to run myself from the

heart and mind together and be absolutely unbiased

and unprejudiced in thinking and talking with other

people, even speaking outside this jury. But after

what has happened, I would not be able to sit in that

box with the other jurors, be able to listen to the case

and be unbiased, unprejudiced or—unemotional is

what I am trying to drive at mostly; that if this keeps

up, if I am kept on the jury, I think I will be a sub-

headline as long as the trial goes on. I will definitely

have a nervous breakdown in a very short time and.

in fact, I feel I am just about ready for one right

now.” (R. 1600-1601)

The Trial Court excused Juror Manning on the ground

that he was both disabled and disqualified.

Revised Code Section 2945.29 (13443-13) provides:

“Jurors becoming unable to perform duties. If, be-

fore the conclusion of the trial, a juror becomes sick,

or for other reason is unable to perform his duty, the

Court may order him to be discharged. In that case,

if alternate jurors have been selected, one of them

shall be designated to take the place of the juror so

discharged. If, after all alternate jurors have been

made regular jurors, a juror becomes too incapacitated

to perform his duty, and has been discharged by the

Court, a new juror may be sworn and the trial begin

anew, or the jury may be discharged and a new jury

then or thereafter impaneled.”

Revised Code Section 2313.37 (11419-47) provides

in part:

“If before the final submission of the case to the

jury a juror becomes incapacitated or disqualified, he

may be discharged by the judge, in which case, or if a

juror dies, upon the order of the judge, said addi-

tional or alternate juror shall become one of the jury

and serve in all respects as though selected as an

original juror.”

The defense contend that they had one challenge

left when Juror Manning was excused and his place taken

by alternate Juror Hanson (Pet. Br., p. 51). As the Court

of Appeals stated:

“The defendant entered his exception to the pro-

cedure used by the Court in discharging Juror Man-

ning and demanded the right to exercise his remain-

ing peremptory challenge when the first alternate

juror was seated in the panel after Manning was dis-

charged, which request was refused.

“After a jury is sworn and charged with the de-

livery of the defendant, the trial is commenced and

unused peremptory challenges cannot thereafter be

used and where an alternate juror has been selected

and sworn as provided by law, he must be seated in

the place of the discharged juror by order of the

Court.” (Pet. App., 38a-39a)

In any event, there is here no federal question.

The prospective jurors were questioned 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. Except for Juror Manning who was

discharged, the 13 jurors who sat and heard this case, and

the 12 jurors who decided this case, were all competent

and qualified jurors, without prejudice or bias, and the

record discloses that they gave most careful and adequate

consideration to the case.

IV.

Conduct of the bailiffs in permitting jurors to telephone

members of their families between deliberations (Pet.

Br., pp. 52-54).

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 husbands or children on the tele-

phone, and not in the jury room during the deliberations

(Petitioner’s Brief, pp. 52-53). The jurors deliberated in

a room above the court room in the Criminal Courts Build-

ing and there is absolutely no evidence in the record show-

ing any misconduct of the jury or of the officers in charge.

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 con-

versations with strangers, as suggested in the brief of the

petitioner. The testimony of Bailiff Edgar Francis follows:

“Q. Do you know, of your own knowledge,

whether there was any telephone communications

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 request?

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?

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.” (R. 7084-7085.)

The defense saw fit to call certain jurors to the wit-

ness stand on their motion for new trial and if they wished

to pursue this matter further, they had the right and

opportunity so to do. They chose not to do so and there

is nothing in the record whatever of anything having been

said or done either by the bailiffs or by or to the jurors

prejudicial to the defendant.

The trial court stated when a supplemental motion

for new trial was filed:

“The court named Simon Steenstra, permanent

criminal jury bailiff and Edgar Francis his own court-

room 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

whole-hearted approval.” (Pet. App., pp. 16a-17a).

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 follows:

‘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 permit the jurors to separate during the ad-

journment of court overnight, under proper cau-

tions, or under supervision of an officer. Such

officer shall not permit 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 occupied 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.

“In connection with a mction for a new trial, the

record discloses the following cross-examination of one

of the bailiffs by counsel for defendant:

‘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.’

“On redirect examination, the testimony was as

follows:

‘Q. Mr. Bailiff, what was the purpose of the

calls that the jurors made in your presence?

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.’

“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 communicate with a jury in his charge or cus-

tody except to inquire whether it has reached a

verdict, will be presumed to be prejudicial to a de-

fendant 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, follow-

ing such declaration, a verdict is returned by the

jury.’

“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 re-

versal. That case, however, is also readily distinguish-

able 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

Emmert cases, it is easy to presume prejudice to the

defendant 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 several days and nights

had been sequestered and unable to see or hear from

their husbands, wives or children, to telephone those

members 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.

‘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 de-

fendant was prejudiced thereby or was prevented

from having a fair trial. Section 2945.83, Revised

Code. There is no such affirmative showing of prej-

udice here, and this Court will not presume a prej-

udice as a matter of law from the fact that some of

the jurors made telephone calls to members of their

immediate families.”” (Pet. App., pp. 89a-92a.)

On the claim that the authorities seized the home of the

petitioner (Pet. Br., pp. 54-56).

The defense make reference to matters concerning

the possession of the home (Pet. Br., pp. 55, 62) which

they made an issue on the motion for new trial on the

ground of newly discovered evidence, which motion was

denied by the trial court, affirmed by the Court of Appeals

of Cuyahoga County in 100 Ohio Appeals 399 and dis-

missed on appeal by the Supreme Court of Ohio in 164

O. St. 428. No appeal has been taken from the final action

of the Supreme Court of Ohio and the judgment of our

State courts thereon is now final. Notwithstanding the

finality of this judgment, the defense again drag into their

petition for a writ of certiorari the unfounded claim that

they were prevented from examining the premises. The

Court of Appeals, in a well reasoned and extended opinion,

have completely answered this claim in 190 Ohio Appeals

at pages 406-407:

“During the trial the defendant subpoenaed the keys

into court through Chief Eaton and demanded the

right to retain them. The trial! judge, however. ruled

that they must remain in the possession of the police

of Bay Village, which order was carried out until

December 23, 1954, when complete possession of the

house was given the defendant. There is no evidence

that any request to enter the house for the purpose

of investigation and inspection was ever made by the

defendant, nor does the record show any formal ap-

plication to the court at any time for a like purpose.

Dr. A. J. Kazlauckas, a physician and expert who had

spent many years as a deputy coroner of Cuyahoga

County, was in the employ of the defendant. He ex-

amined all the articles of property pertaining to this

case in the possession of the county coroner, together

with the autopsy report, conclusions of laboratory

findings and X-rays of Marilyn Sheppard, and yet

made no effort to make any scientific examination of

the premises. He was not even presented as a witness

during the trial. Assistant Prosecuting Attorney Saul

S. Danaceau deposes in his affidavit that he informed

Arthur E. Petersilge, of counsel for the defendant,

and the brother of the defendant, Dr. Stephen Shep-

pard, in early November, ‘that the said house was

available to the defendant at any and all times to in-

spect or conduct investigations therein.’ It seems,

however, that it was understood that on all occasions

a police officer would have to accompany the defend-

ant or any representative of his when visiting the

home.”

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 evi-

dence. It was also necessary to continue the examination

and search in and about the house for possible clews and

particularly for the still missing T-shirt and weapon. The

record will disclose the continuous examination of the

premises for blood spots, fingerprints, etc., by the scienti-

fic unit of the Cleveland Police Department and by mem-

bers of the staff of the county coroner. As stated by the

trial court, the prosecutor “could very well have been sub-

ject to just criticism” had he directed Chief Eaton to act

otherwise.

Further complaint is made that the Court erred in not

ordering the keys to the house turned over to Mr. Corrigan

during the testimony of Chief Eaton. This episode oc-

curred during the closing days of the trial when a sub-

poena was issued to Chief Eaton, requesting the Chief to

bring with him the keys to the house. As a matter of fact,

the defendant, counsel for the defense, and the members

of the defendant’s family had never been denied an op-

portunity to enter the premises or any part thereof, or

to make an examination or investigation therein. Also, as

a matter of fact, the defendant, counsel, and defendant's

family had visited the premises and at no time had they

been denied access thereto.

Thé€ cross examination of Chief Eaton at that time,

by Mr. Mahon, was as follows:

“Q. Chief, since you have had that key—you got

it Some time in November, the key to the house; is

that right?

A. Yes, sir.

Q. From that time down to date has the house

been accessible to the Sheppard family?

A. Yes, it has.

Q. And have they been in the house during that

period of time?

A. Once, on one occasion, at least.

@ To take care of the heat, and so forth, and

water, and all of those things?

A. Yes.

Q. Is that right?

A. Yes.

Q. Have they ever been denied at any time the

right to go into that house since you have had pos-

session of the keys?

A. They have not.” (R. 6076.)

“By Mr. Corrigan:

Q. And the order that Sam Sheppard could not

go into his home, where did that come from?

A. Pardon me. Will you repeat that?

Mr. Danaceau: We object to that. We know

of no such order.

Q. Did you make that order?

Mr. Danaceau: Just a minute.

Mr. Mahon: Was there such an order?

The Court: Let him tell what the situation

was.

Mr. Mahon: There is no evidence there ever

was such an order.

The Court: No, there isn’t any evidence about

an order, but he is the Chief of Police. Let him an-

swer if there was.

A. I didn’t understand the question, I’m sorry.

The Court: Will you restate your question, Mr.

Corrigan? The Chief doesn’t understand it. Or

let the reporter repeat it.

(Question read by the reporter.)

A. There was no order he could not go in his

home.

Q. The order that Sam Sheppard could not go

into his home except in the custody of a policeman or

with a policeman, how did that originate?

A. That was suggested, I believe, by the prose-

cutor’s office.” (R. 6077-6078.)

Obviously, the whole episode in the closing days of

the trial, and the demand for the keys in the presence of

the jury was a grandstand play and show, and nothing else.

In the meantime, the defendant and his counsel had,

on more than one occasion, visited the home and, as pre-

viously pointed out, went through all the rooms and ex-

amined the house, both inside and outside. The defendant

was permitted to remove his medical bags and the con-

tents. He and the members of his family were also per-

mitted to remove his clothing, Chip’s clothing, and various

other articles. Also removed were his automobiles, con-

sisting of a Jaguar, a Lincoln Continental and a jeep. Ex-

cept 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 by the scientific unit of the Cleveland

Police Department when, at a later date, the case was

turned over to them for further investigation. Also made

available to the defense for their inspection were all of

the articles in the possession of the county coroner and

such articles were examined by Fred Garmone, counsel

for the defense, and by Dr. Anthony J. Kazlauckas, a

former deputy coroner of the county, on behalf of the

defense (100 Ohio Appeals p. 403).

In the words of the trial court (Opinion overruling

motion for new trial on newly discovered evidence):

“Seldom indeed does the entire interior of a home be-

come as important as the interior of this home seemed

to be in the period in question and while complete

exclusion of the representatives of the defense would

not be justified, it is only rational to believe that the

Prosecuting Attorney was fully justified in preserv-

ing the scene in status quo pending trial and its out-

come. The two affidavits last mentioned and the

statements of all counsel in open court clearly indi-

cate that the prosecution had no desire to conceal

anything and must lead the Court to the conclusion

that there existed neither concealment nor hindrance

and that the condition imposed, already mentioned,

was merely precautionary. It is not unlikely that

failure to take possession of the property and failure

to take the precaution taken could very well have

been subject to just criticism.”

VI.

All of the claimed violations of the petitioner’s constitu-

tional rights to a fair trial were passed upon by the

Supreme Court.

In the Supreme Court of Ohio it was claimed that the

petitioner was denied due process of law, but apart from

quotations from “Annals of the American Academy of

Political and Social Science” and several cases, nothing

specific was shown wherein the petitioner was denied

due process of law, in any one of the claimed errors.

The Supreme Court, in its opinion, discusses at great

length the matter of publicity and the various motions for

a change of venue. In its opinion at page 87a of the Ap-

pendix to the Petition, it is said:

“It should be borne in mind, however, that the

legal question presented to us is whether the defend-

ant was accorded a fair constitutional trial by an im-

partial jury which could decide the issues of fact solely

upon the consideration of the evidence in the light of

the law given it by the court. That question is not to

be decided on the volume of the publicity or the

tendency such publicity may have had in influencing

the public mind generally as to the defendant’s guilt

or innocence.”

After further discussion, the Supreme Court in its

opinion at page 88a of the Appendix continues:

“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.

“We believe the trial court was justified in those

rulings.”

Continuing, the Supreme Court said at pages 88a-89a:

“If the jury system is to remain a part of our sys-

tem 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

accepted before this venire was exhausted, and de-

fendant exercised but five of his allotted six peremp-

tory 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 a change of venue by the trial judge con-

stituted an abuse of discretion.”

Then, the Supreme Court said further, at page 94a:

“The facts were presented to 12 qualified jurors

sworn to well and truly try the issues between the

State of Ohio and Sam H. Sheppard. In what was ob-

viously a careful, complete and correct charge, Judge

Blythin instructed that jury as to the law applicable

to those facts. In such a situation, the following words

of Mr. Justice Holmes, in Aikens v. State of Wiscon-

sin, 195 U.S. 194, 206, 49 L. Ed. 154, 25S. Ct. 3, are

appropriate:

‘But it must be assumed that the constitutional

tribunal does its duty and finds facts only because

they are proved.”

At the conclusion of its opinion, the Supreme Court said,

at pp. 94a-95a:

“We have carefully examined the other errors

assigned and find none, either in the admission or

rejection of evidence or in the instructions of the

court, prejudicial to the defendant.”

VII.

The petitioner claims that the Supreme Court of Ohio was

an illegally constituted court at the time the court

heard this case.

This is just another example of the numerous frivolous

claims made by the defense. It was at their instance, and

without informing the prosecution of their intention, that

the Chief Justice disqualified himself and appointed an-

other judge. No objection was made prior to the hearing

on this case in the Supreme Court and it was not until

after the court as constituted made its decision adverse to

the defense, that they first raised the issue.

An analysis of Article IV, Section 2 of the Ohio Con-

stitution (Pet. Br. p. 59) will disclose that if any of the

judges shall be unable, by reason of “illness, disability or

disqualification” to hear, consider and decide a cause or

causes, the Chief Justice may direct a judge of the Court

of Appeals to sit in the place of such judge on the Supreme

Court, but that only in the case of absence or disability of

the Chief Justice (not mere disqualification) is the judge

having the longest period of service upon the Supreme

Court authorized to direct an appellate judge to sit. Where

the Chief Justice merely disqualifies himself and is not

absent or disabled, it is the Chief Justice who directs the

appellate judge to sit with the judges of the Supreme

Court.

The defense raised this issue on rehearing before the

Supreme Court of Ohio and their application for rehearing

was denied. This is purely a State constitutional question,

decided by the highest court of the State of Ohio adversely

to the defense and there is involved therein no Federal

constitutional question.

SUMMATION.

Essentially, the petition before this Court is based on

the publicity. Much of the publicity complained of oc-

curred long before the trial took place. The trial judge

was thoroughly familiar with the treatment given the

murder mystery by the news media and was certainly in

the best position to determine whether or not the peti-

tioner would receive a fair trial. Much of the newspaper

publicity in this case was inspired by the lack of coopera-

tion of the petitioner with the authorities beginning im-

mediately after the murder of his wife was committed.

by the protective shield thrown around him, and by the

strategy of his counsel. None of the publicity was de-

liberately promoted by the prosecution. To hold that pub-

licity in and of itself is a denial of due process of law is to

fetter the State in the prosecution of crime and in bringing

to justice the person responsible for such crime. 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 defendant the

benefit of the presumption of innocence. They were 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 did the petitioner offer any

evidence to prove that any juror was in fact 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 counsel

for the petitioner urges upon this Court.

The defense repeatedly assert that the newspapers

were hostile to the petitioner and sought his conviction.

Though this unsupported claim is constantly repeated

and grows in vehemence each time it is so repeated. it

is simply not the fact. News agencies such as newspapers

and the radio were greatly interested in the case, as they

would be in any similar case. The news stories and broad-

casts giving their respective versions of the testimony in

the case and of the other proceedings had, may not at all

times have been agreeable or pleasing to either the State

or the defense. Certainly, the court has no control over

what the newspapers shall print or what the radio stations

shall broadcast. As far as the jurors were concerned, they

were repeatedly instructed to disregard all such stories

and broadcasts and to decide the case solely on the basis

of the evidence presented in open court and on the law

given to them by the judge.

The claims of the defense that the jury and the offi-

cers in charge of the jury during its deliberations were

guilty of misconduct to the prejudice of the petitioner is

based on the mere assertion and argument of counsel.

There is no evidence that the petitioner was prejudiced.

On the contrary, the jurors deliberated patiently, carefully

and thoughtfully for a period of five days, and reached a

verdict which responded to the evidence.

Petitioner has seen fit to place in the Appendix to

the petition for a writ of certiorari the opinions expressed

in some scattered newspaper articles that he did not have

a fair trial. Surely, such opinions are not evidence in

this case and should not be received as a substitute for evi-

dence, nor as a substitute for the well-reasoned opinions of

the trial and reviewing state courts based upon the record.

Again, we have the situation where it is the defense and

not the State that is dragging the newspapers into this

case,

A complete and fair analysis of the record discloses

no foundation in fact for the claims advanced for the

allowance of a writ of certiorari. Nor has the state supreme

court or the trial or appellate state court decided a federal

question of substance not theretofore determined by this

Court, nor in a way not in accord with applicable decisions

of this Court. .

On the record there is no real or substantial Federal

question involved herein and the petition for a writ of cer-

tiorari should be denied.

Respectfully submitted,

FRANK T. CULLITAN,

Prosecuting Attorney of Cuyahoga County, Ohio.

Sau S. DANACEAU,

GERTRUDE BAUER MAHON,

Assistant Prosecuting Attorneys,

Attorneys for Respondent.

tHe

JOHN T. FEY, Clerk

No.

THE STATE

PETITION FOR WRIT

Of Counsel:

ARTHUR E. PETERSILGE,

706 Citizens Bldg.,

Cleveland, Ohio,

FRED W. GARMONE,

350 Leader Bldg.,

Cleveland, Ohio.

In the Supreme Court of the United States

OCTOBER TERM, 1956.

352.

SAMUEL H. SHEPPARD,

Petitioner,

VS.

OF OHIO,

Respondent.

PETITION FOR REHEARING OF ORDER DENYING

OF CERTIORARI.

WILL1aM J. CorrIGAN,

620 Williamson Bldg.,

Cleveland, Ohio,

Paut M. HERBERT,

933 Huntington Bank Bldg.,

Columbus, Ohio,

Counsel for Petitioner.

THE GATES LEGAL PUBLISHING CO., CLEVELAND, OHIO-——MAIN 1-5647

In thee Supreme Court of the United States

OCTOBER TERM, 1956.

No. 352.

SAMUEL H. SHEPPARD,

Petitioner,

vs.

THE STATE OF OHIO,

Respondent.

PETITTION FOR REHEARING OF ORDER DENYING

PETITION FOR WRIT OF CERTIORARI.

Thhe Petitioner prays that this Court grant rehearing

of its O)rder of November 13, 1956, denying the Petition for

Writ oof Certiorari (No. 352, October Term, decided No-

vemberr 13, 1956), U.S. , 20 U. S. Law

Week, p. 3146, Vol. 17, C. C. H. Supreme Court Bulletin,

p. 105, , and that Writ of Certiorari issue to review the Judg-

ment cof the Supreme Court of the State of Ohio in the

above entitled case, as prayed for in the Petition filed

Augustt 28, 1956.

FREASONS FOR GRANTING REHEARING AND

ISSUING THE WRIT.

Tithe record in the Supreme Court of Ohio discloses

that Péetitioner’s case was admitted to that court because it

determined that a constitutional question was involved,

and, after admission, did not pass on the constitutional

question. '

II.

The Separate Memorandum of Justice Frankfurter

informs the Bench, the Bar and the Public that the Su-

preme Court of the United States refuses to pass upon the

question whether a trial held in the atmosphere of a Roman

Holiday for news media and in a criminal courts building

equipped by the trial court for broadcasters and telecasters

is a deprivation of due process of law; that a trial so con-

ducted does not commend itself to the exercise of the dis-

cretion of at least four members of the Court.

Does it serve justice that the finding of the Supreme

Court of Ohio on the conduct of a trial shall stand without

review by this Court? It is stated in the Memorandum

that “the denial of the petition in no way implies that this

Court approves the decision of the Supreme Court of Ohio.”

While the denial of the writ does not reveal the posi-

tion of “all members of the court,” it does reveal the posi-

tion of more than a majority of the court. That majority

voices neither approval nor disapproval. It is silent.

As a result, it stands as the law of Ohio, the State with

nine million inhabitants, that a trial conducted in the man-

ner that Petitioner’s trial was conducted fulfills the re

quirement of due process of law guaranteed by the Con-

stitution.

The Supreme Court of the United States is the most

influential authority in the nation in establishing public

policy and precedent.

When the Court permits the decision of the Supreme

Court of Ohio to stand it has established a national policy

and ruling case law that will affect trials in the future.

' Petitioner’s Petition for a Writ of Certiorari, p. 56.

The policy and precedent that results from the denial

of the writ in this case will soon be reflected in trials all

over the land, especially in cases involving sex, sensation

and crimes. It will justify the acts of judges, law officers

and demonstrative lawyers who covet publicity and crowd

approval for their personal benefit.

Newspapers, telecasting and broadcasting companies

will point to this case as the open door to the courtroom

where they can enter with impunity and approval to ad-

vance the personal interests of their companies or organiza-

tions.

This Court cannot escape the fact that these medias

of publicity have launched and are carrying out a well-

planned campaign to televise, broadcast and photograph

sensational trials.

Tremendous pressure is on to secure the nullification

of Canon 35 of the Canons of Judicial Ethics.” Already the

campaign has been successful in part and it is general

knowledge that a number of judges have submitted to the

pressure.

The question raised by the Petitioner and now em-

phasized by the Memorandum of Justice Frankfurter is of

* American Bar Journal, Sept. 1956, Vol. 42, p. 843:

“Canon 35 of the Canons of Judicial Ethics was adopted by

the House of Delegates of the American Bar Association, in

1937 and amended to include the prohibition against broad-

casting in 1952. It reads in part as follows:

‘Proceedings in court should be conducted with fitting

dignity and decorum. The taking of photographs in the

court room, during sessions of the court or recesses be-

tween sessions and the broadcasting or televising of court

proceedings are calculated to detract from the essential

dignity of the proceedings, distract the witness in giving his

testimony, degrade the court, and create misconceptions

with respect thereto in the mind of the public and should

not be permitted.’ ”

imp ejtive interest to the Bench and Bar * and the Public.’

pr more than half a century the Bar has been dis-

cussip 29d deploring “trial by newspaper.” *

pe Survey referred to in footnote (5) emphasizes

the fet (Pp. 213), which should be of the utmost concern

to thecourts and lawyers alike, of the foothold gained by

these Practices, which have come to be known as “trial by

newspPer.” “Presumably the day will come (Survey, p.

184 ) vhen at least four Justices of the Supreme Court will

only PPe that the day may come soon.”

me denial of the Writ devitalizes the noble concept of

AngloSaxon Jurisprudence that the place of justice is a

halloyed place “ and that it is basic that a trial take place

in anatmosphere of quietness, dignity and detachment

from ?€ passions of the community.’

[is startling to speculate on the effects that will result

to the‘ight of a fair trial because of the denial of this Writ.

We ar Constantly being warned by great voices to be on

guardagainst the powerful forces in the world that are

s gmerican Bar Journal, September, 1956, Vol. 42, p. 43;

Ameria” Bar News, Vol. 1, No. 1, July 16, 1956, p. 4.

‘ Kw York Times Editorial, September 5, 1956.

s @Enduct of Lawyers and Judges, Final Report for the Sur-

vey of he Legal Profession under the Auspices of the American

Bar As0ciation, pp. 154-187. Parker & Co. Los Angeles, 1952.

« Chirdly, for that which concerns clerks and ministers. The

place o justice is a hallowed place; and therefore not only the

bench, 2ut the foot-pace and precincts, and purprise thereof, ought

to be ;reserved without scandal and corruption; for certainly

grapes (as the Scripture saith) will not be gathered of thorns or

thistles neither can justice yield her fruit with sweetness amongst

the brars and brambles of catching and polling clerks and

ministe’s.” Francis Bacon, “Of Judicature,” Essay No. 56—1654.

* “We The Judges,” p. 361, by Justice William O. Douglas.

working to extinguish liberty. We know that the right of

a fair trial has been blotted out in most of the world.”

CONCLUSION.

For the reasons set forth above and in the Petition for

Writ of Certiorari it is respectfully urged that rehearing be

granted and that upon such rehearing a Writ of Certiorari

issue to the Supreme Court of the State of Ohio.

Respectfully submitted,

WILLIAM J. CoRRIGAN,

620 Williamson Bldg.,

Cleveland, Ohio,

Paut M. HERBERT,

933 Huntington Bank Bldg.,

Columbus, Ohio,

Counsel for Petitioner.

Of Counsel:

ARTHUR E. PETERSILGE,

706 Citizens Bldg.,

Cleveland, Ohio,

FreD W. GARMONE,

350 Leader Bldg.,

Cleveland, Ohio.

* “Such times call for constant reflection and re-appraisal, in

order to determine what our heritage of liberty is and what we

are doing today to preserve it for our children and for those who

come after them. * * * It is easier to know how to combat a

foreign enemy who challenges our right to these freedoms and

thus prevent a sudden collapse of the things we hold dear than it

is to subject ourselves to daily analysis and discipline for the

purpose of preventing the erosion that can with equal effective-

ness destroy them.” Chief Justice Earl Warren, Washington

University Law Quarterly, April, 1955.

snsspietbibdshia

CERTIFICATE OF COUNSEL.

I hereby certify that the foregoing Petition for Re-

hearing is presented in good faith and not for delay and is

restricted to grounds specified in Rule 33 of the Rules of

this Court.

Witut1aM J. CorRrIGAN,

Counsel for Petitioner.

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.