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vale | BERR EE: cy vibe Qe dy “hes - } 5 ; V | Sheppard v. Matwell No. 16077 opinion, 231 F. Supp. 64-65." No denial of this conduct was made hecause the only one who could have done so, Judge Blythin, had been long dead when he was. thus accused. The District Judge seemed to believe that with Judge Blythin’s voice stilled by. death, this recitation of his statements became “uncontroverted evidence in this case and must be accepted as being true.” A similar charge was made against Judge Blythin by one Edward T. Murray, an employee in the office of the Clerk of the Common Pleas Court of Cuyahoga County at the time of the Sheppard trial. His statement was that during a discussion of the She pard case in July, 1954, prior to the trial, Judge Blythin remarked that “Sam heppard was as guilty as he was innocent.”.. As in the case of the first discussed accusation, no corroberation or denial of the charge could be provided because the only identified witness to the occurrence, a lawyer by the name of Maher, had, like the accused judge, long since died — and the accuser’s memory failed him as to the identity of “three or four” other people present.” We believe that the District Judge was under a mis- apprehension in assuming that because J udge Blythin could not answer the charges against him, such charges consti- tuted “uncontroverted evidence” that Judge Blythin had made the statements attributed to him. There are many circumstances in which testimony need not be accepted even though formally uncontradicted. E.g., Quock Ting v. United States, 140 US. 417, 420-22, 85 L. Ed. 501, 502-03 (1891) ; Scates v. Isthmian Lines, Inc., 319 F(2) 798, 799 (CA 9, 1968); Ramos v. Matson Nav. Co., 316 F(2) 128, - 182 (CA 9, 1963); D’Orsay Equip. Co. v. United States Rubber Co., 302 F(2) 777, 779-80 (CA 1, 1962); Powers ®No explanation was offered to the District Court as to why dis- ° closure of this unugual conduct of a judge of unimpeached reputation awaited his death. The accusation of t é columnist was not made before the District Judge.“It was contained in a statement agreed to have the “status of a deposition” and also, by agreement of counsel, no oath was administered “since the integrity of the witness is not in dispute.” She was not cross-examined. . 10 As in the case of Dorothy Kilgallen, Mr. Murray was not put under No. 16077 Sheppard v. Maxwell ; 29 6, 1956) ; Andrew Jergens Co. v. C.LR., 125 F (2) 686, 689 (CA 6, 1942); Goodyear Tire & Rubber Co. v. FTC, 101 F(2) 620, 624 (CA 6, 1939), cert. denied, 308 U.S. 557, 84 L, Ed. 468 (1939) ; 8 Cyclopedia of Fed. Proc. § 26.98 (3d ed. 1951) ; 11 Id. § 47.161 (3d ed. 1968) ; 7 Wigmore, Evi- dence, § 2034, pp. 260-63 (3d ed. 1940). Manifold reasons for rejecting the “uncontroverted” statements adduced by petitioner exist in the present case. Whether offered to prove the matter asserted or merely the fact of assertion, - testimony as to the uncorroborated oral statement of a deceased person is the weakest form of evidence, viewed with suspicion and subject to close scrutiny. “The courts consider with suspicion, or lend a reluctant ear to, state- ments as to what a deceased person may have said, espe- cially when corroboration is lacking.” 31A CJ.S. Ewdence, ' § 266, p. 689. Such statements “are regarded as of compar- atively little probative value. . . .” 20 Am, Jur. Evidence, § 1196, p. 1048, and “. . . courts of justice lend a very unwilling ear to statements of what dead men had said,” Lea v. Polk County Copper Co., 62 U.S. (21 How.) 498, 504, 16 L. Ed. 203, 207 (1859). Whether the habeas corpus factfinder be persuaded by the polite language of the Ohio Attorney General that “even the best of memories wane dim to some extent,” or cared to find inherently incredible the stories told by Judge Blythin’s accusers or be satisfied that they did not overcome the presumption of the regu- larity of the deceased trial judge’s conduct, he was at lib- erty to withhold his conviction of Judge Blythin in this regard. There is, moreover, much to contradict _these “uncor.troverted” statements, which are entirely incon- sistent with several other remarks made by Judge Blythin. Thus, in denying renewed motions for change of venue or continuance, he stated that it would be in Dr. Sheppard’s interest to have a verdict rendered upon the evidence offered in court, “and the court has no idea whatever what that evidence will be. He hasn’t even a thought as to the direction of it. He is fortunate in that respect, and he is very pleased about this situation.” Again, in cautioning the jurors before a weekend recess to avoid all publicity about the case, he said that by avoiding such publicity “you will feel very much better as the trial proceeds, I am ‘sure and I have no idea what is going to develop in the tria any more than you do.... It is serious business, of course .. . we ought to be equally serious as the matter acaegenge tote