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~*~ “| THE UNITED STATES DISTRICT JUDGE’S 10 No. 16071/No. 16077 Sheppard v. Maxwell dict it became known to the defense that the individual jurors had been permitted repeated phone calls to their omes. This knowledge was made the basis for a motion for new trial made by defense counsel. The stipulation of facts agreed on by the parties before the United States District Judge gives the etails on this issue: “After arguments and charge were complete, the jury was directed to retire to deliberate its verdict They were placed in charge of two bailiffs, Edgar Francis and Simon Steenstra. The deliberations lasted for more than four days, during which time the jury was kept (except when at court deliberating) in the Carter Hotel in downtown Cleveland. They, together : with the bailiffs, occupied the entire seventh floor of - Sheppard v. Maxwell 71 find photographs of the entire jury and of individual jurors (at times giving their home addresses) in no less than 40 issues of the Cleveland newspapers. The Court need not be naive, and it does not stretch its imagination to recognize that one of the purposes of photographing the jurors so often was to be assured that they would look for their photographs in the news- papers and thereby expose themselves to the prejudi- cial reporting.” Sheppard v. Maxwell, 231 F. Supp. 37, 63 (1964). “It is clear beyond doubt, because of the sheer volume of publicity which attended the trial, that the jury - read and heard about the case through the news media.” (Footnote omitted.) Sheppard v. Maxwell, supra at 62. the hotel. Bailiff Steenstra had made arrangement ' whereby the telephones in the rooms occupied by the Rule 52(a) of The Federal Rules of Civil Procedure Jurors were disconnected so that no calls could be states in part that “findings of fact shall not be set aside placed or received. unless clearly erroneous. ..” This rule is FPplicable to “The record does not indicate the times, the num. review of federal habeas corpus proceedings. United States ber of calls, or the identity of the juror-callers, but e* rel. Crump v. Sain, 295 Fad 699 (C.A. 7, 1961), cert. it is clear that both Steenstra and Francis permitted denied, 369 U.S. 830 (1962); Rushing v. Wilkinson, 272 jurors to place outside calls from their (the bailiffs’) F.2d 683 (C.A. 5, 1960). See also Cases Annotated at n.57, rooms between the time the jury took the case (De 28 U.S.C.A. Rule 52. . . cember 17, 1954) and the time the verdict was rend. __ In this trial all jurors, save one, freely admitted reading ered (December 21, 1954). The calls were placed by @bout the case before trial. . the jurors. No records were kept as to the numbers :, This jury was never locked up for the nine weeks of called, the parties called, talked with, or the calling .trial. . : jurors, The bailiffs sat next to the phone as the con-:*, At least seven of the jurors took newspapers at their versations took place, but could only hear that half of »homes. Five of them took The Cleveland Press. The news the conversation made by the juror; what was said to j,media were given extraordinary prominence and privileges the jurors could not be heard by the bailiffs, The in the courtroom. . . Court was never asked for permission to allow the , No admonition of an unequivocal nature concerning the jurors to make these calls, and no permission was ever Jury not reading or listening to material about the trial was given.” (Emphasis in original) given until after a month of testimony. The judge allowed himself and the jury all through the trial to be the constant subject of newspaper photography. When queried on the one occasion when inquiry was allowed, two jurors testified to hearing the Walter Winchell broadcast. They were not reproved nor were they or the other HOLDINGS Concerning the first four of the events we have cited (and others) Judge Weinman said: jurors told not to do it again. “[S]pecial note must be given t6, the attempt of the The two newspaper stories were front page stories in newspapers to influence the jury. It was startling ta newspapers of general circulation. The Cleveland Press eee rece