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tot . ee q vt ty j pare ee) Peat 3 re Seer _ ‘ab ; Sheppard the merits of the case. v. Maxwell No. 1607] No. 16077 Sheppard v. Maxwell © 77 n This is particular! true in F045 ’ i “netiti criminal cases. To hold that the mere exis tenn e of anf “Dist ict Judge’s holding that “petitioner was not afforded a : : . : : trial as required by the due process clause of the Four- preconceived notion ag to the guilt or Innocence of ar* ‘teen ” accused, without more, is sufficient to rebut the pre” nth Amendment, { 1 tl {| ai : 4 out Any other view would deny common sense as effectivel i Sumption of a prospective juror’s impartiality would as y. nek y ar i L F i | | cree sgrectrae raiser ate: woewe aye tet oh . . . ited the background of one case might be harmless, but which . Stabe AC aoe rin S, 181 si olt v. United against the total circumstances of another case might vio- [98 US 145].” Irvin 659 a mited States, Supra ate substantial rights. United States vy. McMaster and Oe NGO]. Vv. Mowd, supra at 722-23, 14 Wolf, ... Fad ..: (CA. 6, 1965) (Nos. 1p.828 29, De- : ed 965 - Arulewtich v. United States. . To return to the basic roblems of thi it i }Sge 4, March 26, 1 - , , : _ that the District J wdge considered the claimed Violet eet : 720 isaey” (1949) 5 Kotteakos v, United States, 828 US. ; € process agains ial i & : ie cumulatively in relation to each ‘others His on nett ane i Ie background acts, of a irrel vaerein que Dowd: “A f the above tioned facto Ls gupras Rides "Louisiana, supra “vans Arvmey. Dowd, . any one o ve mentio i.e. ra , . u , . Insidious, prejudicial newspaper reporting” the the In Marshall v. United States, 360 U.S. 310 (1959), the fusal of the trial judge to question jurors regarding # United States Supreme Court dealt with a claim of preju- an alleged prejudicial radio broadeas j. ; dice because inadmissible materia] from news accounts had val atmosphere which continued throughout the att 'Teached the jury during trial. Noting the large discretion would be sufficient to compel the conclusion that peti-* th tioner’s constitutional rights were violated. e 1 “ they are cumulated, this Court cannot, unless it wer “each case must turn on its special facts.” to stretch its imagination to a point of fantasy, say The “special facts” of this case compel my vote for the petitioner had a fair trial in view of the publicity # affirmance. They come as a distinct shock to the conscience during trial,” Sheppard vy, Maxwell, supra at 63, ‘f; of this former state court judge. _ i . ., "fe As we have noted, Judge Weinman’s duty to review peti- } Against this View, I read the Court’s opinion as holding; tioner’s federal constitutional claims concerning his state t i #@ court trial cannot be dis uted. Fay v. Noia, supra; Town- send v. Sain, supra; Gideon v. Wainwright, supra. ; I read such cases as T'urner v. Louisiana, supra; Rideau v. Louisiana, supra; Irvin vy. Dowd, supra, as applicable , l con is jury, consider, irely 4 @ fortiorari to t e fact situation heretofore out ined and as isolated incidents, did Not rise to constitutional aes meted authority for issuance of the writ, unless a new trial is we still could not by such dissection of this trial] ignore ordered. our constitutional duty to look at the tri e trial 7 : to determine from the total record whether th "Pouce P would affirm. oo ‘ i en violated. APPENDIX A Yh PRETRIAL ORDER ney : one : -Cts Or communications'% with this jury Was Sufficient standing to representht invasion of petitioney’s due process rights, MY a ae related at the outset, leave no doubt of the validity of the AGREED STATEMENT OF FACTS 2,As to the i . “Petitioner, Samuel H. Sheppard, was in July, 1954, a