◆ SpookStack

Farge if t 66 Sheppard v. Maxwell No. 16077 defendant's right of confrontation, of cross-examina- tion, and of counsel. .. .” aa NS SSS [Footnote] “The Sixth Amendment provides: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed... .” (Emphasis supplied.)” Turner v. Louisiana, supra at 472-478. _If ever a jury could be said to be likely to have “impregnated by the environing atmosphere,” it was -uraly this jury. And I do not see how this Court can safely con- clude that the jury verdict was based only on “the evidence developed against defendant . . . from the witness stand.” However applicable to this trial these standards may be, - they are also generalizations. I would affirm the Distri Judge’s writ in this case on the basis of specific due ae ess violations which occurred during trial and for all of which there were both preventive measures beforehand and remedies afterward available to, but unused by, the trial udge. At trial the principal issues upon which testimony wa: presented to the jury were 1) motive, 2) credibility, and 3) reputation. On each issue the evidence presented and inferences argued by prosecution and defense were in sharp conflict. On each issue the jury could have believed either But on these same crucial issues, as the trial progressed the news media supplemented the total record with mate- rial never heard in the courtroom. Much of this material though highly prejudicial to defendant, was relevant and admissible if a witness could have been found who was _ prepared to testify to it under oath in the courtroom and ~.face cross-examination. Some material, though equally e a 8 prejudicial, was obviously inadmissible under any circum- _ The United States District Judge listed 30 diff instances of objectionable news media od oO ications which he felt were prejudicial. We shall discuss only five J. On Friday, November 19, 1954, ‘a police officer of th Cleveland Police Department gave testimony during this trial which tended to contradict some portions of defend- ete No. 16077 cast which was heard in Cleveland over Station which Mr. Robert Considine made a comparison between defendant an Sheppard v. Maxwell - 67 On November 21, at 6:30 p.m., there was a radio broad- WHK in d Alger Hiss. Defendant's confrontation by Officer Shottke was compared to Alger Hiss’ confrontation with Whittaker Chambers. . At the time in 1954, Alger Hiss’ conviction was fresh in the national consciousness. . Robert Considine was one of the national commentators occupying reserved seats in the courtroom On November 22, at the commencing of court, defend- ant’s counsel moved for a continuance of the trial, on prejudice resulting from the Considine broadcast and asked the trial judge to question the jury as they heard the broadcast. 4 The judge denied both motions, saying in part: “Well, I don’t know, we can’t stop people in any event, listening to it. It is a matter of free speech, and the court can’t control everybody. “MR. MAHON: I think that the court has in- structed the jury that they are not to read about it or listen to the broadcasts. It was a general instruction that was given at the time the trial started. “THE COURT: We are not going to harass the jury every morning. . “MR. CORRIGAN: I can’t help it, Judge. If you don’t, that’s all right with me. T make my exception. “THE COURT: It is getting to the point where if we do it every morning, we are suspecting the jury. I have confidence in this jury, and we must have con- fidence or the jury system is of no value whatever to anybody.” { Prior to dealing with this motion, the trial judge (as we have noted) had just denied a defense motion for continu- ance based upon a television program conducted on the steps of the courthouse the same morning, where among others, the prosecutor and the trial judge had appeared. The trial judge’s picture at this appearance was published in one of the Cleveland papers on the day these motions were heard and denied (See Appendix C). 9. On November 24 The Cleveland Press published a front page eight-column headline: “Sam Called a ‘Jekyll-