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| | fal Sheppard v. Maxwell No. 16077 the ‘interview’ on their television sets. Calcasieu Par- ish has a population of approximately 150,000 people. * * * * * “Three members of the jury which convicted him had stated on voir dire that they had seen and heard Rideaw’s televised ‘interview’ with the sheriff on at least one occasion. Two members of the jury were deputy sheriffs of Calcasieu Parish. Rideau’s counsel had requested that these jurors be excused for cause, having exhausted all of their peremptory challenges, but these challenges for cause had been denied by the trial judge.” 373 U.S. 723-25. (Emphasis supplied.) Mr. Justice Stewart, after observing that “the plan [the filming of the confession and its telecast] was carried out with the active cooperation and participation of the local law enforcement officers,” concluded that “without pausing to examine a particularized transcript of the voir dire examination of the members of the jury, ... due process of law in this case required a trial before a jury drawn from a community of people who had not seen and heard Rideau’s televised ‘interview.’ ” We are of the opinion that neither Irvin nor Rideau sup- port a holding that the jurors’ testimony had to be rejected y the trial judge and that a fair jury could not possibly have been obtained in this case. In Irvin, the Court was dealing with a case where eight of the twelve jurors thought the defendant guilty, some of them stating that evidence would be needed to overcome this belief. The basic thrust of the Court’s holding is found in its conclusion that “it would be difficult to say that each fof the eight opinionated jurors] could exclude this pre- conception of guilt from his deliberations.” It was only against this background that the Court ruled that the trial court should have rejected the jurors’ statements that they could render an impartial verdict despite their opinions. These vitiating opinions, moreover, were formed on the basis of publieity“nat only of Irvin’s criminal record, but of statements that.he had actually confessed to several murders, including the one for which he was convicted. In the present case, the publicity contained accusation only by innuendo. So far as Irvin is concerned, indeed, it would seem that Dr. Sheppard was accorded rather more than the Pee ad ete oe oe “aA GRAN Eg hetdetes SOT : pe i ip RS ! Rtas 2 tA Tee ee : H No. 16077 Sheppard v. Maxwell OW constitution requires, for each of the twelve jurors who voted to convict him testified they were entirely free of any opinion as to his guilt or innocence. The Court in Irvin, by way of contrast, ruled that _ “To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror’s impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.” 366 U.S. 723. Irvin, we think, provides no basis for ruling that the pub- licity in the present case was such as to “rebut the presump- tion of a prospective juror’s impartiality.” The facts of Rideau set it even further apart from Dr. Sheppard’s case. To ask three jurors to put entirely aside the visual spectacle of a confession by the very defendant they are charged to presume innocent is indeed close to demanding the impossible. To believe that the balance of that jury could remain ignorant of what their fellow jurors knew would be folly. It was far different, and we think not unreasonable, to ask a jury to ignore the sus- picions and accusations of the press in deliberating Dr. Sheppard’s guilt or innocence. Compare Bearden v. United States, 320 F(2) 99, 101-103 (CA 5, 1968), cert. denied, 376 U.S, 922 (1964). : While it was not expressly relied upon by the District Court, we believe that the decision in United States ex rel, Bloeth v. Denno, 318 F (2) 364 (CA 2, 1963), cert. denied, 372 U.S. 978 (1963) is distinguishable upon the same grounds as Irvin and Rideau. Other cases relied upon by the District Court, Delaney v. United States, 199 F(2) 107 (CA 1, 1952); Marshail v. United States, 360 U.S. 810 (1959); United States v. Accardo, 298 F (2) 133 (CA 7, 1962) ; Krogmann v. United States, 225 F(2) 220 (CA 6, 1955), are all immediately distinguishable as cases involving the exercise by federal appellate courts of their supervisory power over trials in the district courts. But they are further distinguishable on their facts. In Delaney the pretrial publicity about an accused Collector of Internal Revenue, Delaney, included extensive coverage of public hearings before a congressional