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ti Sheppard v. Maxwell No. 16077 “Jekyll-Hyde” story was topped ouble banner front page headline, : e two broadcasts were by nationally prominent com- . mentators broadcasting on prime time in. Cleveland. With these facts before us, I do not see how we can Say that the District J udge’s holding is “clearly erroneous,” The District Judge’s opinion in respect to these in. stances of prejudicia trial publicity is founded upon ample ' precedent, Newspaper articles actually read by a juror or jurors which convey hi hly prejudicial information not admis. sible or admitted at trial have long been recognized as constituting such essential unfairness as to justify the Setting aside of the verdict and the granting of a ney trial. Mattox v. United States, Supra; Krogmann v. United States, supra. ‘ Where flagrantly prejudicial newspaper articles are prominently printed in newspapers of general circulation: during a trial wherein the jury is not sequestered, there i; - a presumption that some jurors have seen them and that efendant has been prejudiced thereby. Harrison, v. United States, 200 Fed. 662 (C.A. 6, 1912); Marson y. United . United States, supra; Briggs v. United States, 221 F.2d 636 ( C.A. 6, 1955), by an eight-column, . strong admonitions to disregard, a motion for new trig! should be granted. Krogmann y. United Sta Ss, Supra; Marson vy. United States, supra; Briggs v. United States, ? supra; United States y. Accardo, supra. [. we have seen, the admonitions in this trial were; infrequent and equivocal when given. And minimal in. fury was limited to the Single instance of the Winchell roadcast, i In concurring in Irvin y. Dowd, Mr. Justice Frankfurter said: . “Not a Term Passes without this Court being im. ~~ ~portuned to review convictions, had in States through. “out the country, in which substantial claims are made that a jury trial has been distorted because of inflam. sures upon potential jurors before tria] and even dur. the course of trial, i 4 fy ‘ No. 16077 Sheppard v. Maxwell 73 difficult, if not impossible, to secure a jury capable of taking in, free of repossessions, evidence submitted in Open court. ... tor one reason or another this Court does not undertake to review all such envenomed state prosecutions, But, again and again, such disregard of fundamental fairness is so flagrant that the Court is compelled, as it was only a week ago, to reverse a conviction in which prejudicial newspaper intrusion has poisoned the outcome. Janko v. United States, ante, p. 716; see, e.g., Marshall v. United States, 360 U.S. 310. See also seroble v. California, 343 U.S. 181, 198 (dissenting opinion ; ; US. 56 (coneurrine opinion) .” Irvin v. Dowd, supra at 730 (concurring opinion.) In my opinion “the disregard of fundamental fairness is so flagrant” in this case as to require the District Judge’s it. . . ° ; e “On the fifth issue, pertaining to juror phone calls during jury deliberations, J udge Weinman found: “This Court finds prejudicial error because the right to a fair and impartial trial as guaranteed by the due process clause of the Fourteenth Amendment includes the right to have a jury which is not permitted, after it begins its deliberations, to have unmonitored tele- phone conversations with third persons. As stated quite simply in Mattox v. United States, 146 U.S. 140, 150 ‘Private communications, possibly prejudicial, be- tween jurors and third persons, or witnesses, or the officer in charge, are absolutely forbidden, and invali- date the verdict, at least until their harmlessness is made to appear.’ (Emphasis added.) “ is nothing in the record to show the harmless- neaere that part of the telephone conversations which the bailiffs could not hear. Accordingly, petitioner’s constitutional rights were violated.” Sheppard v. Max- well, supra at 71, Here, too, the District Judge has sound precedent in sre, federal courts (including the United States Supreme Court and this Court) have created and given. effect to the presumption that any unauthorized communication with a i aa a fan eh ‘ ta ii i ‘ a i: ti ' : Shepherd v. Florida, 341.