◆ SpookStack

a) a ogi A a 48 . Sheppard v. Maxwell No. 16077 Epwarps, Circuit Judge, dissenting. If ever flagrant and tolerated interference of news media in a criminal trial served to deprive a defendant of his constitutional rights to due process and a fair trial, this surely must be such @ case. The United States District Judge whose writ of habeas corpus we review declared this trial void and ordered the State of Ohio either to retry petitioner or set him free, By so doing, Judge Weinman did no. more than fulfill his sworn obligation to uphold the Constitution of the United States. I would affirm. The record which we review discloses a trial which fell far below minimum federal constitutional standards of due process. The fundamental concept of a jury trial requires the protection of the jury from extra-judicial information about the case.1 This doubtless can never be perfectly achieved in a trial of great public interest’ because of pre- trial publicity.? But this fact serves as no excuse for fail- ure to employ all of the known and established measures for selection of an impartial jury and for the protection of that jury from outside influences during the trial itself. This trial was held in a murder-shocked community in close proximity to the date of the crime in the midst of “unparalleled” publicity. (See State v. Sheppard, 165 Ohio St. 293, 294 (1956)) During the nine weeks of trial this jury was allowed to separate each night and weekend to their individual neighborhoods and homes. Such admoni- tions as the trial judge gave pertaining to news media during the first month of testimony were equivocal and inadequate. During this trial there were constant extra-judicial con- tacts and communications with this jury. Many of these extra-judicial contacts and communications with the jury are clearly established by the record. As to others, Judge Weinman found that jury knowledge should be implied because of a factual record which impells me to the same conclusion. A number of the most important and most prejudicial of the news media communications were drawn from sources completely outside of the trial record. These were 1 Mattox v. United States, 146 U.S. 140 (1892). 2 Irvin v. Dowd, 366 U.S. 717, 722-723 (1961). i oe yee No. 16077 Sheppard v. Maxwell 49 ot just news media inaccuracies or debatable comments in ‘ eporting court proceedings, they represented deliberate and highly prejudicial supplementation of the trial record. Elaborate measures were provided for news media con- venience in covering the trial. But the standard measures which could have been employed to prevent the news media from influencing the outcome of trial were not employed. In a trial atmosphere which the Supreme Court of Ohio described as “a Roman Holiday for the press,” the news media were frequently allowed to become the dominant factor in a courtroom where defendant was on trial for his life. The judge who presided at this trial repeatedly pro- fessed his inability to control these events. In fairness it should be noted that he was in the most difficult and vulner- able position possible to undertake to do so. | ; But at the outset it should be stated that it was not just abuse of freedom of the press which accounted for the violations of. due process in this trial; it was failure of the judicial process also. This case provides no argument for repeal of the First, Amendment or for immunization from prosecution of any person indicted for crime. A judge assigned to try a controversial criminal case ’ in the midst of great public excitement has the duty to guarantee due process of law. He also has the power to do so. Seven principal measures are available to him to protect the right to a fair trial of a person charged with crime. 1) On defendant’s motion he can grant a change of venue to a distant locale in his same state which is less concerned with the crime. Ohio Rev. Code Ann. § 2311.38; Rideau v. Louisiana, 373 U.S. 723 (1968) ; Irvin v. Dowd, supra. . . B) He ean adjourn the trial, at least briefly, until a peak of public excitement (or a judicial election!) has passed. Ohio Rev. Code Ann. § 2945.02; Rizzo v. United States, 304 F.2d 810 (C.A. 8, 1962), cert. denied, 371 U.S. 890 (1962). . . ; _. 3) He can lock up the jury during trial so that it is guarded from outside contact. Ohio Rev. Code Ann. § 2945.31; United States v. Holovachka, 814 F.2d 345 (C.A. 7, 1963), cert. denied, 874 U.S. 809 (1963) ; Baker v. Hud- speth, 129 F.2d 779, (C.A. 10, 1942), cert. denied, 317 US. 681 (1942) ; Stone v. United States, 113 F.2d 70 (C.A. 6, 1940).