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dt gf rae Hepsi ees : eB aat 2 oe ‘ . i! : : 30 | Sheppard v.. Maxwell No. 16077 itself, and we should be sure that we are keeping ourselves as good citizens in the position where we can listen to that restimony without being influenced in any way, shape or manner by what may be surrounding in the air and which may have no basis in fact,” During the course of the trial, Judge Blythin cut off repetitious examination by defense counsel, and during the course of the ensuing discussion stated that “the Court thinks and believes, thoroughly believes, that he has been| impartial from the beginning, and he will be to the end. The Court has no interest in this case other than to be sure that we do have a fair trial and that we proceed with the trial.” While overruling defense motions made at the close of the state’s case, he made the following remarks: “Gentlemen, due to the tendency that always exists, among the laymen at least, to deem anything that the Court says about the evidence in a case, or about the remarks of counsel directed to that evidence, as some expression or at least suggestion that the Court has formed some opinion as to what the facts really are, of course, this case and in this connection at the moment the Court has no obligation whatever, nor -even right, to even consider the weight of the facts in this case nor to express any opinion or, in fact, have any opinion as to the guilt or innocence of the defendant.” Perhaps most important, an affidavit by one of the orig- inal defense counsel filed in the present proceeding relates Judge Blythin’s valid defense of his court and himself in denying petitioner’s 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 San a i, No. 16077 e i Pitot 1 Sheppard v. Maxwell 31 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 seem 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.” (Emphasis supplied. ) The accuracy of the quoted statements by Judge Blythin, permanently recorded when made, are not subject to fallible human memory as are the dead-man “admissions” fur- nished by Murray and Mrs, Dorothy Kilgallen Kollmar. Certainly a factfinder could: give them weight in resolving the issue. Despite the foregoing, however, we do not feel that we need here rule that the District J udge’s finding of fact was clearly erroneous within Fed. R. Civ. P. 52(a). Accepting his finding that Judge Blythin in fact made the statements attributed to him, we are not persuaded that petitioner has met his burden of proving deprivation of his constitu- tional rights in this regard. Absent some proof that an early impression of petitioner’s guilt so infected Judge Blythin’s judicial disposition as to impair his ability to provide petitioner a fair trial, we cannot join in the holding of the District Court. We find no authoritative disagree- ment with the text that “a judge is not disqualified to sit in a criminal case merely because he has an opinion as to the guilt of the accused, or is convinced of his guilt... .” 380A Am. Jur. Judges, § 172, p. 89, and that “In the absence of prejudice or bias, a judge is not disqualified by a declaration of his belief as to the guilt of a person charged with an offense before him... .” 48 C.J.S. Judges, § 89, p. 1078. Compare Hendrix v. Hand, 312 F(2) 147 (CA 10, 1962) ; United States v. Shotwell M fg. Co., 287 F (2) 667, 672 (CA 7, 1961), af’d, 371 U.S) 341 (1963) ; United