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Eis "4 Sheppard v. Maxwell No. 16077 yo 4 ae f 1 ., °,. This conclusion is reached notwithstanding that on the "+ main points discussed some nine Ohio judges of the Common Pleas Court, the Court of Appeals, and the Supreme Court, did not find error or constitutional vice in the Sheppard trial and that the case “did not commend itself to at least four members of the [United States Supreme] Court as falling within those considerations which should lead this Court to exercise its discretion in reviewing a lower court’s decision.” Sheppard v. Ohio, 352 U.S. 910, 911, 1 L. Ed(2) 119 (remarks of Frankfurter, J.). Other points now found to be of constitutional magnitude evidently did not appear of sufficient significance to prompt Dr. Sheppard’s Qiesinsei to assert them as error on appeal. Aside from the question of lie detector evidence, which cannot be affirmed unless we are. willing to accept its con- clusion that the jurors who heard this case were, wittingly or unwittingly, false to their oaths; or that the trial judge, deceased before the start of this habeas corpus proceeding, was guilty of impropriety in sitting as a judge at the Sheppard trial. We cannot join in such conclusions, not- withstanding our agreement with the District Judge’s characterization of the conduct of some of the Cleveland to the judiciary’s continuing concern for the freedom that the press insists should at all times be accorded to it. Con- temporary American society would be greatly benefited if those members of the press and other media of informa- tion who offend in this regard were as conscious of and devoted to their responsibilities as they are solicitous that oe privileges remain unimpaired. Good would also be ? the product of greater restraint by prosecutors and other members of the bar who indulge in public and truculent announcement of their trial plans and ammunition. An initial question should be disposed of. The respondent warden now charges that the District Court was without jurisdiction to entertain the instant habeas corpus action, asserting that Dr. Sheppard has not exhausted remedies still available in the state courts of Ohio, citing 28 U.S.C.A. § 2254. He contends that application for delayed appeal is still available to petitioner under Ohio Revised Code § 2953.05 as to errors not already considered by the Ohio court, and that under Ohio Revised Code § 2725.02, habeas corpus may also be presently employed to present federal constitutional questions. to the Ohio courts. In his answer to the petition for habeas corpus, however, respondent PPG fee oP . we find without merit, the judgment of the District Courts press as being shameful journalism, certainly not conducive “Mal site aes fe ae as fea: ' Sheppard v. Maxwell 7 en) No. 16077 admitted “that petitioner has exhausted all his remedies in the courts of Ohio. . ...” Whether such response consti- tutes a judicial admission foreclosing present consideration of the jurisdictional question and whether, assuming the court’s right to now consider exhaustion of remedies, peti- tioner has exhausted his state remedies as required by 28 U.S.C.A. § 2254, are interesting questions. We pass them, however, believing that since the District Judge has enter- tained the application for habeas corpus and ruled on the merits, we have the right to, and should, dispose of the appeal before us on its merits. Particularly is this so since the result of our determination is in a sense a vindication of the state courts. Compare the Third Circuit rule that exhaustion is not required prior to a ruling against the merits of a state prisoner’s petition, United States ex rel, Drew v. Myers, 327 F(2) 174 (CA 3, 1964); In re Thompson, 301 F(2) 659 (CA 3, 1962) ; In re Ernst, 294 F(2) 556 (CA 3, 1961), cert. denied, 368 U.S. 917 (1961). We shall discuss the merits under the headings of Pub- licity, Disqualification of Judge Blythin, Lie Detector Evi- dence, Communications with Jurors, and Other Questions. 1) Publicity. -_ We should at the outset confess a certain temptation to yield to today’s accelerating current of excitement and concern about undue press coverage of criminal charges and trials, and to affirm petitioner’s release as dramatic vindication of the bar’s contention that some of its own members and some of the various media of information have by misuse of their rights prevented our courts from according fair trial to all who are accused of crime. : Doubts as to the efficacy and propriety of such action, however, are supplemented by the certain knowledge that it is our duty as federal judges to avoid a state judgment of conviction only where some constitutional infirmity may be found. Careful consideration of this case leads to the conclusion that no such infirmity infects Dr. Sheppard’s conviction. The frequently quoted prefatory ara raph to the opinion of Judge Bell, who wrote for the Ohio Supreme Court in affirming the conviction of Dr. Sheppard, provides appropriate introduction to the publicity aspect. of the present case: a “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