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if t i H t , } i t Sheppard v. Maxwell No. 16077 No. 16077 Sheppard v. Maxwell 19 subcommittee investigating his alleged criminality and now to hold that American citizens have so far forgotten misfeasance which the court said “afforded the public a their traditional heritage of “fair play” that such shabby; preview of the prosecution’s case against Delaney,” with- reporting would irretrievably infect the minds of an entire out the safeguards of a trial. It included evidence of metropolitan community. Our jury system cannot survive Delaney’s bankruptcy, charges of larceny and embezzle- if it is now proper to presume that jurors, selected with ment, and a public announcement by the committee chair- the care taken in this case, are without the intelligence, man referring to the “deplorable activities of ... Mr. courage and integrity necessary to their obedience to the Delaney” and the committee’s effort to find out “why this law’s command that they ignore the kind of publicity here: betrayal has occurred.” The court further emphasized that involved. We are left rather in the position of the Court in the federal government, prosecutor in the criminal case, Roak v. Washington, 369 U.S. 541, 557 (1962), where was itself responsible for much of the publicity: In Mar. ‘owe cannot say the pretrial publicity was so intensive and shall, publicity appeared during the trial which included extensive or the examination of the entire panel revealed information of alleged previous felony convictions involving such prejudice that a court could not believe the answers forgery, of previous violation of the drug laws, ‘and of an of the jurors and would be compelled to find bias or pre- identification of Marshall as one who had prescribed re- formed opinion as a matter of law.” stricted drugs “for Hank Williams before the country Our negative holding that Dr. Sheppard has not dem- singer’s death.” The defendant did not take the stand, but onstrated an adequate basis in the pretrial publicity for all of the above was admittedly communicated to several disregarding the jurors’ assertions of impartiality would members of the jury through news accounts. The Supreme be sufficient to dispose of this aspect of his petition. We Court was careful to point out that reversal was “in the - prefer, however, to emphasize the affirmative reasons for exercise of our supervisory power to formulate and apply refusing to ignore those assertions. Federal courts fre- proper standards for enforcement of the criminal law in quently employ the very tactic here employed by Judge the federal courts... .” In Accardo the accused did not Blythin, postponing their rulings on motions for change take the stand, but the newspapers published accounts of ‘of venue until an attempt to impanel a jury has revealed his criminal record and other inflammatory material com- whether it is possible to find impartial jurors. E.9., Hoffa paring Accardo with Capone and calling him “the master y. Gray, 323 F (2) 178, 180 (CA 6, 1963), cert. denied, 375 of muscling legitimate business.” Also the court. found US. 907 (1968) ; Blumenfield v. United States, 284 ¥ (2) inadequate the district judge’s admonitions to the jury to 46, 51 (CA 8, 1960), cert. denied, 365 U.S. 812 (1961) ; avoid all news accounts of the case. In Krogmann the United States v. Kline, 205 F. Supp. 637, 638 (D. Minn. offending publicity erroneously asserted that one of the 1962) ; United States v. Hoffa, 156 F'. Supp. 495, 499 (S.D. defendants had admitted the offense charged during his N.Y. 1957) ; United States v. Dioguardi, 20 F.R.D. 38, 36 trial testimony and this Court, exercising its supervisory (S.D. N.Y. 1956) ; United States v. Dioguardi, 147 F. Supp. power, found error in the trial judge's handling of the 421, 422 (S.D. N.Y. 1956). The trial judge in such a matter after discovering that two of the jurors had read situation is in the best position to evaluate the testimony the accounts. Our review of these last considered cases of prospective jurors, and accordingly it is he who must leaves us ~unconvinced of their impor tance to the issue bear the brunt of determining whether a fair trial is before us>-_ ~. oo. . possible. Wolfe v. Nash, 313 F (2) 398, 397 (CA 8, 1963), We have einphasized above that the publicity involved in cert. denied, 374 U.S. 817 (1963); Mayo v. Blackburn, the present case was not of a nature calculated to inspire 250 F(2) 645 (CA 5, 1957), cert. denied, 356 U.S. 938 confidence in the objectivity and good taste of the public (1958) ; United States v. Bando, 244 F(2) 838, 838 (CA 2, news media. But neither was it of a nature calculated to 1957), cert. denied, 355 U.S. 844 (1957). As stated by the create lasting opinions as to Dr. Sheppard’s guilt. Surmise, court in the Mayo case, conjecture, and accusation were substituted for confession, “ her the ad blici ted th criminal record, or direct evidence. We are not prepared Whether the adverse publicity prevented the appellee from securing a fair trial was a question primarily