Sheppard v. Maxwell

PETITIONER:Sheppard
RESPONDENT:Maxwell
LOCATION: Southern District Court of Ohio Eastern Division

DOCKET NO.: 490
DECIDED BY: Warren Court (1965-1967)
LOWER COURT: United States Court of Appeals for the Sixth Circuit

CITATION: 384 US 333 (1966)
ARGUED: Feb 28, 1966
DECIDED: Jun 06, 1966

Facts of the case

After suffering a trial court conviction of second-degree murder for the bludgeoning death of his pregnant wife, Samuel Sheppard challenged the verdict as the product of an unfair trial. Sheppard, who maintained his innocence of the crime, alleged that the trial judge failed to protect him from the massive, widespread, and prejudicial publicity that attended his prosecution. On appeal from an Ohio district court ruling supporting his claim, the Sixth Circuit Court of Appeals reversed. When Sheppard appealed again, the Supreme Court granted certiorari.

Question

What threshold must be crossed before a trial is said to be so prejudicial, due to context and publicity, as to interfere with a defendant’s Fifth Amendment due process right to a fair trial?

Earl Warren:

Samuel H. Sheppard, Petitioner versus E. L. Maxwell, Warden.

Mr. Bailey.

F. Lee Bailey:

For the petitioner Your Honor, Dr. Samuel H. Sheppard.

This case comes to this Court on writ of certiorari to the United States Court of Appeals for the Sixth Circuit which on May 5th last reversed, two to one, a judgment of the United States District Court for the Southern District of Ohio, voiding the Ohio conviction of Dr. Samuel H. Sheppard which was recorded in 1954.

The district judge in his opinion noted five independent federal constitutional violations, each of which in his judgment, warranted granting the writ of habeas corpus and he determined that the five of them constituted this case as it was tried and carried through the state courts a mockery of justice.

On July 3rd, 1954, Dr. Samuel H. Sheppard was an osteopathic neurosurgeon living in the hamlet of Bay Village, Ohio a few miles west of Cleveland.

He was 30 years old as was his young wife Marilyn.

They have one child, age seven.

They lived on the shore of Lake Erie.

He was a busy and successful doctor as were his two older brothers, both surgeons and his father, also a physician.

The four of them run a clinic and they were active in the Bay View Hospital located in Bay Village.

The Sheppards entertained that night some friends named Ahern.

At some time during the evening while on television, a movie was being observed called, Strange Holiday, Dr. Sheppard fell asleep on the couch.

The Aherns left some time around midnight and bade Marilyn Sheppard goodnight at the door and she was never seen alive again.

Some time around six o’clock in the morning, a man leaving two doors distant from Dr. Sheppard, J. Spencer Houk the Mayor of Bay Village received a telephone call.

He recognized the voice of the petitioner, who said words in substance, “Spen, come quick.

I think they have killed Marilyn.”

Mayor Houk got up and get dressed, got his wife up and got her dressed, and they got in the family automobile and drove about 75 yards to the Sheppard home.

When they entered the home, they found Dr. Sheppard lying on the floor downstairs.

Mrs. Houk went upstairs and found Marilyn Sheppard lying in a pool of blood.

Authorities arrived, the Bay Village Police, the Cleveland Police, the County Sheriffs office, the County Prosecutors office and the County Coroner’s office.

An investigation was immediately commenced.

No witness, save of Dr. Sheppard has ever reported any facts from his own knowledge as having occurred between midnight and six o’clock on the fourth day of July 1954.

And what Dr. Sheppard had to say was this and still is, “That at some time during the night and he does not know the time, he awoke from a deep sleep by what he imagined to be screaming and thought his wife who was then pregnant was having convulsions, that he rushed up the stairs to the bedroom which was on the second floor.

And that the bedroom was dimly lit, and as he reached the top of the stairs or as he entered the bedroom, the point about which he was uncertain, he noticed a white shape or form, apparently a human form standing near the head of the bed.

As he entered the room and attempted to attack or grapple the form, he was struck from behind and rendered unconscious.

At some later point, he awoke on the floor of the bedroom and heard noises on the first floor.

He got up and run down the stairs.”

Earl Warren:

Is there any question about whether this form was a human being or not?

F. Lee Bailey:

I think the inference is that it was a human being.

F. Lee Bailey:

Dr. Sheppard said, he could not be sure except that it had a white top as it stood next to the bed.

I think it is a human being, the question being whether it was male or female, the question remaining in the evidence.

Potter Stewart:

Is there an inference that there was more than one person if he was grappling with the — this form as you call it and was struck from behind?

Is that — there an inference if there were two people there?

F. Lee Bailey:

Very strong inference that there was more than one person Your Honors.

We see the state of the evidence in the record, it would have been impossible for the person.

Dr. Sheppard was about to attack to struck a rabbit punch in the back of his neck

.We believe there were two, one of whom was a woman.

As Dr. Sheppard charged down the stairs, he observed the man fleeing out the screen door toward the lake and he chased him.

He chased him down to certain wooden steps to the shore of the lake and their grappled with him and became in some manner held around the neck and was again rendered unconscious.

Earl Warren:

That was a man was it?

F. Lee Bailey:

There is no question this time, but — that this was a man at one time described as having had bushy hair, a bushy-headed man.

When Dr. Sheppard awoke for the third time, the Sun was breaking over Lake Erie and he says that he got up, he was half in and half out of the water and indeed later on the sand was found in his pants and trouser caps and his trousers were wet, his t-shirt was missing.

He ran up to the bedroom where his wife lay covered with blood, checked her pulse and found that she was gone, put his knee against the side of the bed as he did so and later it was discovered that the only blood showing on Dr. Sheppard was a spot on the knee diluted with water and then he went down the stairs and called Mayor Houk and then fell to the floor.

Earl Warren:

Did they ever find the t-shirt?

F. Lee Bailey:

A t-shirt was found.

It was never determined whether or not it was Dr. Sheppard’s.

It’s in my recollection that it had no traces of blood whatsoever.

I don’t believe that it was an important piece of evidence in the case.

Dr. Sheppard’s older brothers Richard and Steve upon receiving notification of the tragedy, rushed to Sam’s house.

Dr. Steven Sheppard made an examination of Sam Sheppard and determined that he was in shock that he had spasm in the neck and he ordered him removed to the Bay View Hospital and this was done.

He was taken there by Dr. Steven and by an orderly who had responded to the call.

At Bay View Hospital, he was X-rayed and was found to have a bone chip in the second cervical vertebrae.

His teeth were loosened and he had severe bruises about the face.

He was questioned almost immediately by county authorities, who over the next two or three weeks questioned him intensively and extensively.

Before the day was out, an accusation had been tossed to Dr. Sheppard that he was the number one suspect principally because no other suspects had turned out.

He was asked to take a lie detector test.

Dr. Sheppard asked —

Byron R. White:

Who would toss this accusation and who asked him to take the lie detector?

F. Lee Bailey:

Deputy Sheriff Carl Rossbach I believe was among the first who told him that he was a suspect and said, “Will you take a lie detector test?”

F. Lee Bailey:

And Dr. Sheppard asked how it worked and was informed that it worked as a result of certain physiological phenomenon measured by a machine called the polygraph and he replied at that time, “I don’t feel that my physical condition is sufficient to make the test accurate” and he declined.

Later on in the day because of the attitude of the police, the family lawyer [Inaudible] so he hired a well-known criminal lawyer, William J. Corrigan to give advice to the Sheppards because it was apparent that the trial was up.

The police demanded to interrogate Sheppard and they did interrogate him at sometimes under certain conditions set by Attorney Corrigan.

The newspapers of course reported this incident with every column inch they had available.

And for many days, speculation ran right from the community as to what sort of bushy-headed bloody monster was running about and ready to strike again.

But after a time, other news occurring here and there on the face of the earth began to force the Sheppard case out of page 1 column 1 and this disturbed according to a certain documented product which is reproduced in our petition for certiorari, the editor of a Cleveland newspaper with a circulation of 300,000.

And he felt — he said that because Dr. Sam Sheppard was the police surgeon in Bay Village and because the family was well to do and well-known in Bay Village that the fix was in or something tantamount to influence covering up a murderer.

And so he says fearful that the case would drop out of the public mind and noticing that the other newspapers were beginning to turn their attentions elsewhere, he unleashed his editorial artillery.

His paper, the Cleveland Press kept the case on page 1.

Thereafter an article was published or I should say an editorial saying that someone was getting away with murder.

This editorial appeared on the front page directly below as statement, Sheppard sat for a new quiz.

The plain import of the editorial was that Dr. Sam Sheppard was getting away with murder, but nobody moved to arrest him perhaps for lack of evidence.

Then the Cleveland Press demanded that the Cleveland police take over the investigation because they are by far the more competent and after all Dr. Sheppard would not have the his influence with the Cleveland police and with an hour of two of this editorial demand, the Cleveland police were called in by the fathers of Bay Village and then the press demanded that the Coroner called an inquest.

Potter Stewart:

The City of Cleveland didn’t have a juris — how did they have jurisdiction?

F. Lee Bailey:

I believe they were called in by the town of Bay Village to take over the investigation on the ground that Bay Village didn’t feel itself competent to handle the immense problems of technology and of the difficulties involved Your Honor.

Potter Stewart:

So this is a request by the Bay Village police was it?

F. Lee Bailey:

It appears to have eventually formulated into a request by the town counsel of Bay Village.

Earl Warren:

Is this little village in the same county as Cleveland?

F. Lee Bailey:

It is Your Honor in Cuyahoga County located in Cleveland.

The —

Abe Fortas:

Mr. Bailey —

F. Lee Bailey:

Yes Your Honor.

Abe Fortas:

— when you referred to the view of the editor that the fix was in I thought you said but I don’t want to look it up now but is that in the record?

F. Lee Bailey:

He did not use those precise words.

He complained about the probability that Dr. Sam’s influence in his position was causing him to get kid lock treatment and that much was not being told to the people which ordinary investigation would have turned up.

Abe Fortas:

Is that — is that in the record?

F. Lee Bailey:

Yes Your Honor that is, that is in —

Abe Fortas:

In terms of a editorial or testimony?

F. Lee Bailey:

No Your Honor, the editor of this newspaper has written a book called an autobiography entitled The Years Were Good, chapter 26 in its entirety is devoted to the Sheppard case and it appears in our petition for certiorari at approximately page RS 180.

It is set forth in its entirety and explains his reasons for what he did.

William J. Brennan, Jr.:

[Inaudible]

F. Lee Bailey:

It is Your Honor, the petition for certiorari.

The original petition —

William J. Brennan, Jr.:

[Inaudible]

F. Lee Bailey:

Well, it’s page RS 180.

I believe the last document on the quote.

William J. Brennan, Jr.:

[Inaudible]

F. Lee Bailey:

Yes Your Honor, The Years Were Good, S180.

William J. Brennan, Jr.:

180?

F. Lee Bailey:

Almost at the end of the petition.

William J. Brennan, Jr.:

[Inaudible]

F. Lee Bailey:

I should like to point out at this juncture that the police immediately claimed that their inability to interrogate Dr. Sheppard was the Bugaboo in the case and that he would not come down to police headquarters.

He had of course been interrogated many times sometimes with his counsel at present but it was suggested that an appropriate grilling and that word was used in an editorial, a third degree to which he should have been instantly subjected in the view of the Cleveland Press, might produce the desired result.

He did not go to police headquarters although the prosecutor, John J. Mahon issued a public statement saying if he does not come voluntarily to police headquarters we will convene an inquest and compel him to testify.

Cleveland Press then ran an editorial entitled, “Why no inquest?”

Isn’t this murder worth an inquest?

And substituted for the same text in a later edition of the same paper, the mandate rather than the rhetorical question, “Why no inquest, do it now, Dr. Gerber.”

Dr. Samuel Gerber, a doctor, a lawyer and elective Coroner of Cuyahoga County for many years.

Within a few I should say minutes or perhaps an hour of the appearance of this edition on the streets called an inquest.

He did not hold the inquest in the county morgue as was his custom but in the gymnasium in Bay Village.

Earl Warren:

Is there any objection to that particular editorial which calls upon him to have an inquest following a murder?

F. Lee Bailey:

If it had occurred an isolation Your Honor, I would think it would afford no ground or relief or complaint.

In the total context of the manipulation of public officials by the Cleveland Press, I think that an important piece of evidence.

I think the editorial calling for the inquest to have been unfair and the purpose for which it was called was unconstitutional, that was to force Dr. Sheppard to testify.

William J. Brennan, Jr.:

Mr. Bailey, I gather that’s the editorial Quit Stalling, Bring him in, is that it?

F. Lee Bailey:

No Your Honor.

That was the later editorial.

This editorial is reproduced in our appendix as it appeared in the Cleveland Press on page S-117, that was the first editorial.

It runs above the bannerhead and then on page S-118, the second edition, the same newspaper, the same text, “Why no inquest?

Do it now, Dr. Gerber.”

William J. Brennan, Jr.:

Incidentally, was — among the motions after trial itself, addressed to excessive publicity.

Was — were those editorials, you have them relied upon — I’m speaking of the trial now and not of federal habeas hearing.

F. Lee Bailey:

All we know about the trial record Your Honor is that Mr. Corrigan, the defense counsel offered many newspapers and other documents to the trial judge in support of this change of venue and that they were excluded.

William J. Brennan, Jr.:

You know whether these are among —

F. Lee Bailey:

I do not.

William J. Brennan, Jr.:

But I gather all of these exhibits or exhibits which were introduced at the habeas hearing, was it?

F. Lee Bailey:

They were Your Honor.

The five things [Inaudible] is presently in this Court purporting to contain every flipping in the case of material value.

William J. Brennan, Jr.:

Was it fair to say then that the record on the habeas hearing is quite a different one on the record at the trial itself adjust to the excessive —

F. Lee Bailey:

I think no Your Honor.

I would assume and we have no way of knowing that Mr. Corrigan having been competent counsel would bring to the attention of the judge all of the publicity.

William J. Brennan, Jr.:

Do you have any idea what was before us in the petition for certiorari in the way the record is put.

F. Lee Bailey:

Yes Your Honor, this same editorial was before he was in that petition.

I have that petition right here.

As a matter of fact, much of what appears in the petition you granted was also in this petition.

William J. Brennan, Jr.:

No, what I’m speaking of is the direct review petitioned back in ‘56.

F. Lee Bailey:

(Voice Overlap) ‘52.

William J. Brennan, Jr.:

So most of the material it is now here a habeas hearing was also before us in ‘56.

F. Lee Bailey:

The words of the article.

I might say, this petitioned — the 1956 petition was admitted at the habeas hearing by agreement of counsel.

Earl Warren:

Could all of it been — have been presented at the petition — original petition for certiorari?

F. Lee Bailey:

Much of what you now consider Your Honors was before you then in that original (Voice Overlap) — yes.

Earl Warren:

My question was could all of it have been presented?

F. Lee Bailey:

Yes it certainly, it could Your Honor.

It was exacted at that time.

Earl Warren:

If it wasn’t, just wasn’t done.

F. Lee Bailey:

I think that Mr. Corrigan included most of that upon which I now rely —

Earl Warren:

I see.

F. Lee Bailey:

— as a matter of —

William J. Brennan, Jr.:

Can you think of any significant difference between what he relied on in 1956 when he came here in which he rely on now?

F. Lee Bailey:

It appears that at the time he filed his petition, Mr. Seltzer’s book stating his role in this case and the risk that he took deliberately was not in print so that was not available.

Mr. Corrigan did not emphasize as heavily as have I, the many statements by beliefs that they knew Dr. Sheppard was guilty but he was clever, intelligent and properly hidden the evidence.

This is one of the things about which I very loudly complain.

However, Mr. Corrigan did not pass that issue.

He just did not give (Voice Overlap) —

William J. Brennan, Jr.:

Well, are there any issues raised here that were not raised in the petition in 1956?

F. Lee Bailey:

Oh yes.

In this petition, there are two distinct additional issues.

William J. Brennan, Jr.:

They are what?

F. Lee Bailey:

One is the bias of a trial judge which was not known to any of counsel for petitioner until the habeas petition was almost a year old.

William J. Brennan, Jr.:

Now is evidence taken on that issue —

F. Lee Bailey:

It was Your Honor.

William J. Brennan, Jr.:

— in the habeas.

F. Lee Bailey:

It was.

William J. Brennan, Jr.:

Now, he’s now dead is he?

F. Lee Bailey:

The trial judge is now deceased.

William J. Brennan, Jr.:

And he was at the time of that hearing?

F. Lee Bailey:

He was Your Honor.

William J. Brennan, Jr.:

What’s the other one?

Earl Warren:

Did he die before the petition was filed?

F. Lee Bailey:

He did Your Honor.

The other issue involves the receipt of the lie detector evidence by the trial court.

Those two are the principle distinct issues.

I should point out that the lie detector question was raised in another context in the Ohio Supreme Court and turned aside.

It was not passed upon.

William J. Brennan, Jr.:

But may I ask, is it fair to say that there were at least no records made on either of those issues on the application for direct review in 1956?

F. Lee Bailey:

That is correct Your Honor.

That is correct.

Earl Warren:

Did I understand you to say Mr. Bailey that you — it’s your position that the inquest was unconstitutional because it was for the purpose of compelling Dr. Sheppard to testify against himself?

F. Lee Bailey:

The extent that it appears to have been for that purpose, I think it — to have been an improper proceeding especially in view of the fact the defense counsel was ejected from it forcibly.

F. Lee Bailey:

However, I offer it as part of the total context of this case contributing to the envenomed atmosphere which occurred in Cleveland on October 18th, 1954 when the trial began because this Court has in Estes versus Texas, indicated that pretrial hearings and the like maybe relevant to an assessment of the total atmosphere of trial.

Earl Warren:

Was the counsel ejected from the inquest room because he was a lawyer and they’re representing a defendant or because of conduct that was complained of by the Coroner.

F. Lee Bailey:

It was conduct Your Honor, certainly, he was objecting to the methods of the Coroner.

I should point out that we contend and I think the record shows that this inquest was more of a circus than an inquest and that apparently it was intended to satisfy the people.

At least this is what Mr. Gerber testified to in the Court of Common Pleas when challenged in the point and ask why he didn’t hold it in the morgue as was his usual custom.

In any event from the inquest, flowed a threat by the Coroner I could hold Dr. Sam Sheppard, hold him for the grand jury, however, he did not do so.

Finally, the Cleveland Press printed an editorial which I submit to this Court as the most outrageous.

Earl Warren:

What was his conclusion about that at the inquest?

Did he — did he — it was committed by unknown persons or — or did he absolve the doctor or what did the Coroner do?

F. Lee Bailey:

I don’t find in the record Your Honor any conclusion.

Earl Warren:

That he completed it?

F. Lee Bailey:

Yes, he adjourned it voluntarily.

It was not interrupted.

Earl Warren:

Did he continue — continue for further hearing?

F. Lee Bailey:

No, I think he terminated it but not in any final sense to the extent that I think the idea was to extent he might have reopened it if some new evidence had appeared.

The inquest is frankly very puzzling to me.

Page S-124 of our petition, there appears an editorial which is bannerheaded on page 1 and covers the top of the entire front page of the Cleveland Press.

And it says, “Why isn’t Sam Sheppard in jail?”

What was the last time [Inaudible]

F. Lee Bailey:

This was July 30th, 26 days later Your Honor.

The day [Inaudible]

F. Lee Bailey:

Yes Your Honor.

In the final edition of the Cleveland Press on that same date, that same editorial was positioned in the center of page 1 and the heading was changed again from the question to the mandate, “Quit stalling, bring him in.”

And for the third time, Cuyahoga County responded to the Cleveland Press and Sam Sheppard was arrested.

There is in the record absolutely no indication that within the past 24, 48 or 72 hours any new evidence constituting probable cause which had theretofore been lacking, had been deduced or arrived at by the Cleveland authorities.

Hugo L. Black:

Well, all the editorials that are before us now [Inaudible]

F. Lee Bailey:

Most of them Your Honor.

Most of the —

Hugo L. Black:

(Voice Overlap) — which were not.

F. Lee Bailey:

I don’t think so.

F. Lee Bailey:

None of great significance, the others were before you then.

Now the editor of the Cleveland Press said that the whole question confronting the press as a newspaper, concerned about the whole structure of law enforcement the community was “Shall we permit a protective wall to shield a solution to this murder by saying and doing nothing?”

Or “Shall we move in with all of our editorial artillery in an effort to bring the wall down?”

There were risks both ways.

One risk — one represented the risk to the community, the other was a risk to the press.

We chose the risk to ourselves.

As editor of the press, I would do the same thing over again under the same circumstances.

Not considered that Mr. Seltzer —

Earl Warren:

Well that before — with what you’re reading now before the trial?

F. Lee Bailey:

That is the conclusion of chapter 26 of the autobiography of Mr. Seltzer looking back on the trial that was published in 1956.

Earl Warren:

Well —

F. Lee Bailey:

At about the time this Court denied certiorari.

Earl Warren:

That is the only part of the record, is it?

Is that a part of the record?

F. Lee Bailey:

It’s not a part of the record.

Initially, it was filed in the District Court in the habeas proceedings as part of the publicity and explanation report.

As I began to point out Your Honor, not considered in the deliberations with Mr. Seltzer was the risk to Sam Sheppard that the editorial should be unleashed upon an innocent man.

Now, there is a fashionable hue and cry these days to throttle the newspapers, silence them until all these court proceedings are at an end in criminal cases and might have been said about the dilemma.

I think that there’s ample reason in the records of this case and in the exhibits before this Court to be concerned about newspapers that used their editorial pages to prod elective officials into action when they are hesitant because of the lack of what to his lawyers are supposed to move on and that is evidence of probable cause, but I do not think that the failure in this case is one of the press.

I do not think that this is an occasion to suggest new ideas for shackling the press or exercising or broadening the contempt procedure.

The failures and repeated failures of the entire system so far as control of the lawyers and the judge and the police are blatant and repeated and I think that these primarily caused Dr. Sheppard any chance for fair trial.

Repeatedly in the exhibits which are before you, police are announcing that Dr. Sheppard is guilty.

If they had a chance to interrogate him without counsel, they would have extracted his confession.

Earl Warren:

You mean, Mr. Bailey, by your last statement, do you mean that you’re not pressing the point with respect to assertedly excessive or prejudicial newspaper publicity?

F. Lee Bailey:

No Your Honor, what I mean is this.

That, although a trial by a newspaper presents a serious problem, we have sufficient remedies within the law which were not exhausted in this case, to dispose of this case on a failure of those remedies without coming to the question at least in this case of what must be done to silence the press.

And if all of those remedies had been exhausted, the continuance of the change of venue when the prosecutor who could learn to keep his mouth shut about what he was going to present, and still there was a conviction then perhaps and only then in my judgment might it be time to think about restraints on the press.

I don’t think that those are necessary to dispose all cases like this.

William J. Brennan, Jr.:

This jury was not sequestered.

F. Lee Bailey:

This jury was not sequestered Your Honor, however —

William J. Brennan, Jr.:

Was that a motion made with sequester to —

F. Lee Bailey:

The record does not disclose such a motion, I’m sorry to say.

And apparently, from my experience, it’s not the custom in Ohio as in some other states to sequester juries automatically in serious or murder cases.

Earl Warren:

Even — even in a large city like Cleveland isn’t in murder cases is in the practice?

F. Lee Bailey:

It appears not to be Your Honor.

I’m not a member of the Ohio bar.

My acquaintance is ancillary — principally as a result of this case, but I think perhaps Mr. Saxbe can say that it is not common practice as it is in some states as a matter or routine.

I suggest to this Court as one of the remedies which ought to evolve from this case that lower courts should be urged that they upheld to sequester juries.

They cannot be protected from news media by instructions asking for self-serving answers that the witnesses heard the most damnable and outrageous material about the defendant but will not be influenced.

The compact mentalization of the human mind is not yet sufficient to exclude information such as was broadcast by Mr. Winchell and Mr. Considine in this case damning the defendant even during his trial and yet disregarded in making that kind of total assessment of a man which a jury verdict is.

Hugo L. Black:

How long did it take to try the case?

F. Lee Bailey:

It took them about nine weeks Your Honor including two weeks for impaneling a jury.

It took the jury five days to reach a verdict.

Hugo L. Black:

How long was it?

Was it — how many weeks after the jury was selected before they’d done it?

F. Lee Bailey:

About seven.

Hugo L. Black:

About seven weeks.

F. Lee Bailey:

I believe that’s roughly accurate Your Honor.

Hugo L. Black:

How long after the revamp?

F. Lee Bailey:

The trial began October 18th.

The murder occurred June 4th.

At sometime on June 4th, Dr. Sheppard was arrested on July — I’m sorry, the murder occurred July 4th and Dr. Sheppard was arrested July 30th and he was indicted a few days later.

He was out on bail for a few hours after arresting him for indictment as I recall.

Hugo L. Black:

[Inaudible]

F. Lee Bailey:

I think the damage was this Your Honor and that is why in my brief I have suggested that this does not fall squarely within the cases you have earlier decided in the same general area.

There was no confession in this case.

There was no criminal record announced.

There was no preliminary hearing at which evidence was taken and then broadcast.

There was — began initially by Mr. Seltzer and picked up by the other newspapers and new media the notion that Dr. Sheppard was hiding the evidence.

It is implicit in all of the publicity and especially in those editorials that were published during this period and I believe that it conditioned the community to find him guilty unless he could prove his own innocence.

F. Lee Bailey:

For that reason, I think that the publicity was so prejudicial as to have required a continuance of change of venue at that point.

Either remedy might have been of tremendous help but I think that no man can be expected to go to trial even with the continuance or change of venue if a newspaper will be permitted to do what the Cleveland Press did the day that the Sheppard trial began, that is the day the jury was impaneled and that is to print a front page editorial saying, “Who will speak for Marilyn?”

Hugo L. Black:

What page?

F. Lee Bailey:

That is on RS-126.

Hugo L. Black:

In your brief?

F. Lee Bailey:

In my petition for certiorari but who will speak for Marilyn?

Hugo L. Black:

126.

F. Lee Bailey:

Yes.

I further suggest that if the trial had to begin that that which appears on page S-127 to which a jury was exposed at least.

A statement — a prediction indicating the prosecutor was apparently conferring with the press before putting witnesses on the stand wherein it was announced that a bombshell witness would testify that Mrs. Sheppard had called her husband a Dr. Jekyll and Mr. Hyde, that of course which the witness could never have testified to and did not offer to.

William J. Brennan, Jr.:

Did he testify?

F. Lee Bailey:

He did testify, yes.

He said that Dr. Sam Sheppard was a man of violent tempers because he once seen him spank his son.

William J. Brennan, Jr.:

Did he make this statement?

F. Lee Bailey:

He do (Voice Overlap).

He did not make eject or hide statement and was not elicited from him or asked for him.

Tom C. Clark:

I think that you’re not raising the Irvin and Dowd question.

F. Lee Bailey:

The principles of Irvin against Dowd I think apply the facts are quite different and the number of jurors who were willing to admit the formation of the opinion of guilt is substantially different.

I think the principle of Rideau against Louisiana is applicable even though the facts are substantially different and I suggest to them very urgently because my brother Saxbe will be unable to present this Court with one single good legitimate reason why a continuance or a change of venue could not have been easily granted without harm to the State except for the fact that certain of the principles were running for an election and voting day was during the trial as it turned up.

I wish to deal Your Honors if I may at this time to my brother Mr. Berkman from the American Civil Liberties Union whose discussion will be devoted to the same issue.

There are other issues presented which I will hope to get to in the 15 minutes of rebuttal which have been reserved.

The recent discussion is about to took place [Inaudible]

F. Lee Bailey:

Yes Your Honor, brought to my brother.

Earl Warren:

Mr. Berkman.

Bernard A. Berkman:

Mr. Chief Justice, and may it please the Court.

The problem which confronts the Court in this case is one of the most complex and serious and compelling in the administration of criminal justice and in our constitutional law.

How do you guarantee an accused the fair trial by an impartial judge and an uncontaminated jury in the context of contemporaneous, detailed, colorful and pervasive crime reporting by the news media.

How do you keep the evidence off the news stand and in the courtroom under appropriate due process safeguards without interfering unduly with the public’s right to know, the public’s right to be informed and the press’ right to print.

We recently add tragic evidence of the need to solve this urgent problem and to solve it now.

The experience in Dallas, the Warren Commission has reported, is a dramatic affirmation of the need for steps to bring about a proper balance between the right of the public to be kept informed and the right of the individual to a fair and impartial trial.

Bernard A. Berkman:

In the line of cases beginning with Bridges against California 25 years ago and continuing up at least through Wood against Georgia in 1962, this Court has rejected the English solution which subordinates of press to the courts.

As Mr. Justice Douglas has put it in a Law Review article, “we have concluded that a free press has the same dignity as an independent judiciary.

We have made our choice refusing to sacrifice freedom of the press to whims of judges, for we know that judges as well editors can be tyrants.”

William J. Brennan, Jr.:

Well let’s see then, I want to get this.

I understood Mr. Bailey to say that they’re not — you’re not pressing the issue of unfairness merely because of publicity but rather unfairness because there was this excessive publicity and no steps were taken by the trial judge or by the prosecutor to arrest its possible impact on jury, is that right?

Bernard A. Berkman:

I think that is correct that the impact caused by the material which appeared in the press before and during the trial must have — should have been controlled in order to guarantee a fair trial.

William J. Brennan, Jr.:

Well is that — is that the argument?

Bernard A. Berkman:

What I merely mean to suggest Mr. Justice Brennan that there is nothing about what we propose which would in anyway inhibit the freedom of the press and I wish to make that point in advance because of the hue and cry which has come up to shackle the press which is not our argument.

We ask the Court today to hold that the publicity which precedes and surrounds notorious criminal trial maybe of such a character on its face as to be inherently prejudicial to the accused whether or not the transcript of voir dire discloses that the jurors admitted that they have preconceptions of guilt or promised to be impartial whether or not reports of confessions of the accused were actually published and whether the source of the damaging publicity was newspaper, radio, television —

William J. Brennan, Jr.:

It’s easier to say I take it that there is none in this record the kind of evidence that there was in Irvin and Dowd namely —

Bernard A. Berkman:

I think —

William J. Brennan, Jr.:

– The jurors conceding of their prejudgment of the trial before the trial began.

Bernard A. Berkman:

I think that an examination of the voir dire will indicate that there is not — the intense kind of material as appeared in the record in Irvin against Dowd.

William J. Brennan, Jr.:

More particularly —

Bernard A. Berkman:

Yes sir.

William J. Brennan, Jr.:

— there’s no evidence here that the jurors reacted as there — as there was in Irvin and Dowd affirmative evidence of how they reacted.

Bernard A. Berkman:

I think the transcript does not indicate that the individual themselves so said.

There are a couple of instances of rather peculiar performance by the jurors which are indicated.

One of them a recital by one of the jurors that despite the fact that the Cleveland newspapers were delivered to her door that she had never read any of them.

And another, an indication by somebody who — as soon as his name appeared in the panel, decided that he would read every particular item to make certain that he would be able to be qualified to be the juror.

William J. Brennan, Jr.:

But your argument I gather is that the — on the record here, at least the publicity at that kind of potential for prejudice that either the motion for continuance, the motion for change of venue, what else?

Bernard A. Berkman:

For mistrial or new trial should have been granted.

William J. Brennan, Jr.:

Anything about sequestering the jury?

Bernard A. Berkman:

There was no request to sequester the jury.

It would seem to us that the Court recognizing the kind of milieu in which it was attempting to conduct a trial might very suo sponte have sequestered the jury or provided some other means of protection, but it did not.

William J. Brennan, Jr.:

Are there any other controls that you suggest in the context of this record that has been applied?

Bernard A. Berkman:

I think that at the time it became clear that a Walter Winchell radio program describing some very damaging material attacking the character and credibility of the defendant appeared.

There could have been control, some intense questioning imposed.

I think that at the time of a nationwide broadcast by Robert Considine comparing the defendant to Alger Hiss with respect to his credibility, there could have been some direct and intensive questioning of the jury and perhaps a grant of mistrial even at that point.

Tom C. Clark:

To be carried during the trial [Inaudible]

Bernard A. Berkman:

These two items that I have just referred to Mr. Justice Clark, occurred during the trial.

Byron R. White:

Was there an opportunity to examine the jury on this matter in the motion or during your motion — proceedings on the motion for new trial?

Bernard A. Berkman:

I believe that there was —

Byron R. White:

Was there any inquiry made by defendant’s counsel and —

Bernard A. Berkman:

I think that there was no such inquiry made.

Earl Warren:

That was because of the choice of counsel or the ruling of the court.

Bernard A. Berkman:

You mean after the trial was over?

Earl Warren:

On a motion for a new trial that is — as to whether the jurors would be questioned about whether they have these things or what affected the verdict.

Bernard A. Berkman:

I do not know the answer to that.

Byron R. White:

But you — you just said that there was an opportunity to question the jury on a motion for new trial.

Now was there or wasn’t there?

Bernard A. Berkman:

I think that there were three people on the subpoena but they did not testify and I do not know the reason.

Byron R. White:

Well the juror — the jurors could have been subpoenaed and they could have been questioned.

Bernard A. Berkman:

After — after the trial was over.

Byron R. White:

Yes, isn’t that true?

Bernard A. Berkman:

I think that’s true.

Byron R. White:

And you say three were in fact subpoenaed but did not testify.

Bernard A. Berkman:

Yes.

I do not know the reason whey they did not.

Tom C. Clark:

Who subpoenaed them here, defendant?

Bernard A. Berkman:

I think so.

Tom C. Clark:

Why would they not be determined?

Bernard A. Berkman:

I don’t know.

Tom C. Clark:

I wonder why the counsel hasn’t, if this was so important as it wants to appear at the time of the trial, why wouldn’t the experienced counsel ask to sequester the jury?

Bernard A. Berkman:

I think that Mr. Bailey has indicated that up until this time it had not been the custom to sequester juries.

It may very well had been that because of the fact that the trial was going to be a lengthy one, defense counsel determined as a matter of tactic at the time although I suggest to you that I’m only guessing that it might have been better not to keep the jury away from their families in order to attempt to have them be more minimal to listening to the evidence.

I don’t know the answer to that question.

I only speculate.

Tom C. Clark:

Well is that a real problem in the criminal case of lengthy time, the jurors might be compelled to stand out.

Bernard A. Berkman:

I think it is an extensive problem.

Tom C. Clark:

It’s a problem for the defendant if the — at the state as to what the adverse effect it might have on the jury to hold it.

Bernard A. Berkman:

That in itself it might be prejudicial Your Honor.

We are asking the Court to describe in detail for those who are concerned with fair administration of criminal justice and future cases, the nature of the publicity to describe it with particularity, the kind of publicity which will be held to be inherently prejudicial, insofar as the facts of this case will permit.

And we ask further that the Court articulate detailed guidelines of the trial court’s affirmative responsibility toward the accused under circumstances where he alone stands between the massive publicity and due process for the accused and one point I would like to make it clear.

This is not a matter of letting a presumption substitute for actual proof.

Actually, this is a question of which of several presumptions will be indulged by the Court.

Will it be the presumption that a jury which asserts impartiality on voir dire is not prejudiced, no matter what kind of damaging publicity can be shown objectively or will it be that presumption that given the kind of accusatory and damaging publicity in this case, our criminal trial was contaminated by due process standards.

I think that a selection of one presumption or another is an absolute essential in this kind of situation.

Earl Warren:

Well Mr. Berkman, aren’t you going to detail to us, pardon me, what the Court should have done in this case to keep and — what it didn’t do to keep this publicity from the jury.

I think that’s quite — I would think that would be quite essential here.

Bernard A. Berkman:

Yes —

Earl Warren:

If the jury never heard of this, if they never read any of those items that didn’t come to their attention, you wouldn’t be here, would you?

Bernard A. Berkman:

That’s quite true.

Earl Warren:

Now — now what — what should the judge have done which he didn’t do that makes this an unfair trial.

Bernard A. Berkman:

At the outset, a motion was filed by the defense counsel for either a continuance until the publicity would have an opportunity to die down or for a change of venue to a remote county in Ohio where perhaps the pressures engendered by the newspaper publicity in a prosecution feeding —

Earl Warren:

What county in Ohio would have been remote on that?

Bernard A. Berkman:

Well I admit that in the circumstances of this case, this would have been a problem, but it seem to us that since the defendant who is actually taking the risk and was on trial and made the request for a continuance, the thing that confronted the judge was whether or not the individual could get a fair trial in this particular county.

And as far as speculating as to what county he could have gotten a fair trial and this was the charge to the defendant at least if he waived his right to be tried in the county in which the crime allegedly took place, it would seem to us at least he ought to have the right to make the selection under the conditions that prevailed under these circumstances.

Earl Warren:

Do you think that’s a constitutional question?

Bernard A. Berkman:

The question of whether or not — whether or not a change of (Voice Overlap) environment.

Earl Warren:

Well, he has the right to say where he’ll be tried?

Bernard A. Berkman:

It would seem to me that in a situation where there’s massive publicity throughout the nation as in this case, the way in which a court may attempt to escape its constitutional responsibility to provide a fair trial is to say that there isn’t a county in which the case might have been tried.

It seems to me that that’s a question that need not be asked when a defendant himself has moved to have a change of venue.

I think that under appropriate circumstances, the venue might necessarily be changed several times as this Court found it necessary to do in Irvin against Dowd.

Tom C. Clark:

Do you have any statutes in the records to that?

Bernard A. Berkman:

I beg your pardon?

The present situation is that the matter of — or a change of venue is a matter solely within the discretion of the court, Your Honor.

And we submit that there are some circumstances such as the instant case in which this is not the kind of protection which is sufficient.

I think that to leave the matter entirely to the discretion of the Court is not a sufficient answer.

Earl Warren:

I suppose in those circumstances, we’d have to say today where we have so many news media, the television, the radio, newspapers that no trial could be had in a big city if the defendant wanted to go to some place else.

Bernard A. Berkman:

Not necessarily, Your Honor.

I think it depends upon the quality of the newspaper publicity.

We don’t suggest that every notorious trial is per se a denial of due process just because there happens to be a lot of publicity.

That isn’t the point.

What we’ve tried to suggest in our amicus brief is that there are certain kinds of publicity which by their very nature are so inherently prejudicial that if they appear in a particular case that under such circumstances a continuance or a change of venue or some other protection by the Court ought to be granted.

We suggest for example that where — as here, the prosecution has induced to cooperative in the trial by newspaper which has occurred here and which is a matter of record that under those circumstances, word can be demonstrated as clearly as we can demonstrate here that the prosecution actually attempted to create the atmosphere which is presently before this Court.

Under those circumstances —

Tom C. Clark:

Are you going into that evidence (Voice Overlap)

Bernard A. Berkman:

Yes sir, yes sir.

Earl Warren:

But you are going to — you are going to tell us first what the judge didn’t do to make this an unfair trial actually.

Bernard A. Berkman:

Well, we suggest that the judge should have granted a continuance.

Earl Warren:

That we have or —

Bernard A. Berkman:

Or a change of venue.

Earl Warren:

Change of venue, yes.

Now what else?

Bernard A. Berkman:

We think also that after the material appeared in this trial, the Walter Winchell report, the Robert Considine and this type of material, the Court should have granted a mistrial on the basis of this material alone.

The Court should have our biggest —

Hugo L. Black:

Was the motion made (Voice Overlap)

Bernard A. Berkman:

Oh yes sir.

Oh yes, the record shows —

Hugo L. Black:

At that time?

Bernard A. Berkman:

Yes.

The record shows that motions for change of venue and continuance in mistrial were made through (Voice Overlap) at the beginning of the trial.

Hugo L. Black:

On that basis?

Bernard A. Berkman:

MYes sir.

Yes sir it was.

William J. Brennan, Jr.:

Wasn’t the motion based on the Winchell broadcast not only for a mistrial but alternatively for instructions to the jury and the instructions were denied, is that right?

Bernard A. Berkman:

Yes sir, yes.

I would like if I may to deal with the — one of the particular kinds of publicity which we think is inherently prejudicial and which this Court are to announce for future cases.

Hugo L. Black:

Would that be a legislative or judicial function?

Bernard A. Berkman:

I think that this is clearly a judicial function to the extent that —

Hugo L. Black:

The rules, establishment of rules – ed with a group.

Bernard A. Berkman:

Well, I —

Hugo L. Black:

– at the time of the trial, you would say it’s not a legislative function?

Bernard A. Berkman:

I would say that in this particular instance after this Court has dealt in Rideau and in Irvin and some of these other cases with the consequences of free speech upon a trial situation that the refinement of the rules and the articulating of them beyond the particular facts of the — of those cases is clearly in line with the continuance of a project which I think this Court has already undertaken.

If I may, I would like to spend just a moment on the problem of the kind of publicity of the law enforcement authorities.

The record here —

Earl Warren:

Before you get to that may I —

Bernard A. Berkman:

Yes sir.

Earl Warren:

— may I ask if that is all you complain about so far as the action the judge is concerned?

Bernard A. Berkman:

I think that the Court — in the District Court in this federal habeas corpus proceeding has outlined approximately seven items which this Court may, must, might have done in order to assist in protecting this jury against the consequences of the material.

We claim all of those and principally the ones that we’ve already discussed.

Earl Warren:

But you don’t argue it?

Bernard A. Berkman:

I beg your pardon?

Earl Warren:

But you don’t argue it, they’re not as important to argue?

Bernard A. Berkman:

I think they are Your Honor and if I had time, I would be happy to do it.

We would like to rely on the arguments which are made in our brief and in our reply brief which argued them as vigorously as we can in print.

Earl Warren:

Attorney General Saxbe.

William B. Saxbe:

Mr. Chief Justice, and may it please the Court.

Some 45 years ago, there was a murder in Massachusetts.

There were two men charged on that, Mr. Sacco and Mr. Vanzetti.

The evidence indicated that they were guilty and the jury so found them.

But from that trial there came and from he defendant’s brief in that trial came a story that has persisted through two generations of bleeding hearts that they were persecuted because they were anarchists, because they were Italians, because they were draft dodgers and that the fact they were guilty, never entered the thing.

Just last week, a new book came out where they reexamined the evidence and they found it conclusive that they were guilty, Sacco’s gun fired the bullet — fired the bullet and yet so eminent the jurist as Justice Frankfurter once wrote a book on this and used the defendant’s brief for most of the facts.

Hugo L. Black:

I hope we don’t have to determine whether that was right or wrong in this case.[Laughter]

William B. Saxbe:

No sir, the reason I bring this up is because this case is back here for a second time and it’s back here not on any different arguments, not on any points that were not raised in 1956, but if you please on a different set of facts.

It’s not very common that facts are raised in the Supreme Court of United States.

William J. Brennan, Jr.:

Did you say this is here on a different set of facts?

William B. Saxbe:

According to the defendant’s petition and the defendant’s brief.

William J. Brennan, Jr.:

Well, I don’t get that from the answer to (Voice Overlap)

William B. Saxbe:

I will call it to your attention.

The things that he has raised in his brief and the statements that he makes do not come from the record.

It comes from fiction, the book.

It comes from a investigator, originated after the man was found guilty and yes it comes from a record that was an appendix to a brief which was this book that he referred to.

But to get —

Byron R. White:

Mr. Attorney General, all of this in the record of the habeas hearing, isn’t it?

William B. Saxbe:

In the record of the habeas hearings Your Honor there was appended to the defendant’s brief, a chapter from a book by Mr. Seltzer.

Byron R. White:

Yes.

William B. Saxbe:

It is no place in the record.

It was not in the agreed statement of facts.

William J. Brennan, Jr.:

You mean in the habeas proceeding?

William B. Saxbe:

In the habeas proceedings.

William J. Brennan, Jr.:

It’s not — it’s not an exhibit in the habeas proceeding?

William B. Saxbe:

It’s not an exhibit in the habeas proceedings and it’s not in an agreed part of the facts which was entered.

William J. Brennan, Jr.:

Was this tried when the habeas proceeding in agreed state of fact?

William B. Saxbe:

It was an agreed statement of facts, yes.

William J. Brennan, Jr.:

No witnesses — no witnesses called?

William B. Saxbe:

The only witnesses that were called is two persons that were involved in the prejudice of the judge which the district judge directed that the statements should be taken, unsworn statements and both consider the judge by it and the prejudice the man had been dead several years, obviously an extra illegal affair which had never has entered into it.

William J. Brennan, Jr.:

These were alleged statements by the trial judge deceased at the time of the habeas proceeding.

William B. Saxbe:

Yes.

These were statements by Dorothy Kilgallen, and a courthouse employee which had to do with statement that Judge Blythin had made before this trial and had to do with what he thought the defendant whether or not he was guilty.

Byron R. White:

Well does the state — did the state accept those statements without (Voice Overlap)

William B. Saxbe:

The state does not accept those statements.

Byron R. White:

Well, did they — how come they’re in the record if (Voice Overlap)

William B. Saxbe:

We objected extraneously.

The trial judge wanted those statements and did rely on those statements, but not the trial judge but the District Court judge.

Byron R. White:

Were the witnesses called?

William B. Saxbe:

Witnesses were not called.

There was no cross-examination.

There was no swearing.

William B. Saxbe:

These were voluntary statements which the —

Byron R. White:

Was this over the objection of the state?

William B. Saxbe:

Yes sir.

Earl Warren:

They were not affidavits.

William B. Saxbe:

One was an affidavit and the other one is in the nature of a deposition.

Earl Warren:

Which was the affidavit?

William B. Saxbe:

The affidavit or the testimony of Dorothy Kilgallen was taken in New York.

I had to represent it at present.

It was an unsworn statement by agreement.

However —

What does that mean?

William B. Saxbe:

The district judge said that she was so eminent a person that she need not be sworn.

Abe Fortas:

(Voice Overlap)[Laughter]

Earl Warren:

I didn’t hear you.

I didn’t hear it.

She was what?

William B. Saxbe:

She was not sworn.

William J. Brennan, Jr.:

I know (Voice Overlap)

William B. Saxbe:

Because the district judge was willing to accept the statement unsworn and we did not object that.

William J. Brennan, Jr.:

You said she was so eminent a person that he was opt to, is that what you said?

William B. Saxbe:

Eminent.

William J. Brennan, Jr.:

Is that what the judge said?

William B. Saxbe:

The judge said that at that time.

William J. Brennan, Jr.:

But General, what do you mean by saying that it was an unsworn statement by agreement?

Who agrees?

William B. Saxbe:

At that time, my representative went to New York with Mr. Bailey to take the statement from Dorothy Kilgallen.

We objected that the statement had no place in law.

Abe Fortas:

I understand that but who agreed that it should be on (Voice Overlap) —

William B. Saxbe:

My representative at that time agreed.

Abe Fortas:

Alright.

Abe Fortas:

So it isn’t quite a matter of the judge directing this, is it?

William B. Saxbe:

No.

But the judge is willing to accept it. I’m not finding fault with the judge on whether or not it was sworn.

I do find fault with the fact that it was even considered.

It had no place in this.

Now —

Earl Warren:

Why wouldn’t you object to it if this was unsworn?

William B. Saxbe:

My man agreed to it in New York at that time.

Earl Warren:

I know, but why would your man agree to it?

William B. Saxbe:

I don’t know but it [Laughter] — that was what he came back and said that they had no one to take the statement that they accepted it, but this is not in the record.

I mean this statement is not in the record.

It is in the judge — it was the judge accepted the statement and used it in his opinion in the court — in the District Court.

William J. Brennan, Jr.:

Well but certainly he admitted it for the purpose of the record in this habeas proceeding, didn’t he?

William B. Saxbe:

No sir.

William J. Brennan, Jr.:

He did not (Voice Overlap) —

William B. Saxbe:

He did not.

It’s not in there.

Earl Warren:

Was it offered?

William B. Saxbe:

If it was offered, it doesn’t show on the record.

William J. Brennan, Jr.:

Where is the habeas record?

William B. Saxbe:

The habeas record is here in this Court.

The record of Dorothy Kilgallen does not show in this record.

William J. Brennan, Jr.:

Well I gather that statement — the habeas record is not printed.

At least I don’t have it here.

William B. Saxbe:

We have it here.

Now the —

Earl Warren:

What were the circumstances of this Kilgallen statement?

I take that that was just pointed out to you —

William B. Saxbe:

Alright, I’ll repeat this as much as —

Earl Warren:

I beg your pardon?

William B. Saxbe:

I will repeat to you as much as I understand about the statement.

Some number of years after the trial, she was at a cocktail party and she made the observation that Judge Blythin had remarked to her in confidence or when there was no one else present that the defendant was guilty as held.

That was the statement.

She never indicated that this was reported to anybody or that it was even important.

The —

Hugo L. Black:

When was it?

During or after the trial she said — he said?

William B. Saxbe:

He said — he said it — that he said it before the trial started.

Hugo L. Black:

Which — he was the trial judge.

William B. Saxbe:

He was the trial judge.

She said nothing about this and years later she made this observation at a social affair.

The district judge thought that this was important and wanted the statement taken.

This was recorded as information that was available to him.

The statement came in.

He used it even though every rule of law would preclude a dead man’s statement being brought in or without cross-examination.

Earl Warren:

You — now you say that it was brought in, how was it brought in?

That’s what we want to know — I want to know.

William B. Saxbe:

The district judge before the — during the period of this time directed that they go to New York and take the statement, that a representative from my office and a representative from the defendant’s or the petitioner go and take the statement.

It was — it came back as an unsworn statement and it was relied upon.

Tom C. Clark:

You could cross-examine her though if you have been there.

William B. Saxbe:

No.

Earl Warren:

You didn’t — Didn’t you have a man there?

William B. Saxbe:

Did not.

Earl Warren:

Why?

William B. Saxbe:

Because there was no one to swear and then they —

Earl Warren:

I beg your pardon?

William B. Saxbe:

Because it was an unsworn statement without the benefit of a notary or any person authorized to make a deposition.

Earl Warren:

Well what was the purpose of you going there if you didn’t propose to test the truth?

William B. Saxbe:

Well, I think one of the main reasons we couldn’t presume that such a statement could possibly get into the record and I imagine that that was the reason.

Hugo L. Black:

Why do you take part to judge in?

Hugo L. Black:

Are you a part of judge, you went there?

William B. Saxbe:

Because we are directed by the judge.

Hugo L. Black:

So you didn’t question Miss Kilgallen?

Your man never asked for any questions?

William B. Saxbe:

No.

Not at that time because it was a statement, a short statement which she simply said that she had met the judge in the chambers or there about saying and he said that this man was guilty as hell, a statement which every other part of the record denies.

Hugo L. Black:

Well why — why do you say that he did if you couldn’t presume they would offer that in evidence (Voice Overlap) going to ask you to get it.

William B. Saxbe:

I can presume that they were offered but I certainly couldn’t presume that the judge would accept it or rely on it.

Hugo L. Black:

Why not if there was no objection to it?

William B. Saxbe:

Well, we objected.

We objected to the introduction but we did not —

Hugo L. Black:

You did object to the —

William B. Saxbe:

Oh, yes sir.

Hugo L. Black:

Then what did the judge say when you objected?

William B. Saxbe:

It was said that it would be taken under consideration.

It’s not our objection.

Hugo L. Black:

And then he used it in making his decision in the case.

William B. Saxbe:

Yes sir.

Hugo L. Black:

So that for all intents and purposes it was offered, was accepted and it was a part of the basis of the district judge’s holding?

William B. Saxbe:

It is not in the record of this case.

That’s —

William J. Brennan, Jr.:

I must say Mr. Attorney General I simply can’t understand that.

I just don’t understand that.

What do you mean it’s not part of the record of this case?

William B. Saxbe:

We’ll find that where the mention is made of it here.

In the meantime, I would like to point out some of these facts that have to do with the (Voice Overlap) involved —

Earl Warren:

Well let’s stay with this — let’s stay with this for just a minute.

William B. Saxbe:

Alright.

Earl Warren:

What objection did you make —

William B. Saxbe:

Alright.

Earl Warren:

— to the use of this at the — at the habeas corpus hearing?

William B. Saxbe:

I’m sorry.

Earl Warren:

What objection did you make at this habeas corpus hearing to the use of this statement of Dorothy Kilgallen by the judge?

William B. Saxbe:

We objected when they came back to the Court that this was not a proper part of the habeas proceedings.

Earl Warren:

Have you — is the record there?

William B. Saxbe:

We have the proceedings here.

Earl Warren:

What was said?

William B. Saxbe:

On 6/3/64, we had a statement of F. Garmone who was the defense attorney.

Earl Warren:

53 or 63?

William B. Saxbe:

64 — 6/3/54 — June the 6th — June the 3rd.

We have a statement on June the 3rd, 1964 of E. Murray.

E. Murray is the court employee who also volunteered a statement that the judge has indicated his prejudice in the case.

Hugo L. Black:

If you didn’t read what he said — what was said?

Is that — did you read all that was said about it?

William J. Brennan, Jr.:

What was said specifically about the Kilgallen statement Mr. Attorney General?

Don’t you have it there?

William B. Saxbe:

Yes sir.

Hugo L. Black:

As it pointed it out to you, would you mind reading it?

William B. Saxbe:

Alright.

Dorothy K. Kumar, 220 South Street, New York, May 9th, 1964.

Mr. Bailey questioned her.

Hugo L. Black:

What did he asked her?

William B. Saxbe:

He said, “Your name is Dorothy Kilgallen?”

She said, “That’s correct”.

Whom are you employed and so on?

And other asked to who she is and what she is.

“Would you tell us when you started to cover the case?”

She said, “I went out on early Sunday and what’s — after what’s my line right in Cleveland.

I did a broadcast in my husband’s station, station Cleveland and New York and then I went to the courtroom.”

“Was impaneling a jury going on?”

William B. Saxbe:

“I was certainly there during the impaneling of the jury, it was Monday.

The trial judge Edward J. Blythin.”

“Did you have or have a case and have a conversation with Judge Blythin?”

“Even before the impaneling of jury I had a conversation with Blythin.

They arrived in the court, they’re rather reporters and photographers.

As soon as I got into courtroom, a deputy or someone conducted with Judge Blythin perhaps the secretary who I got to know, but I don’t recall his name,” said Judge Blythin likes to see you in chambers?

“So I went in the chambers, that where I met Judge Blythin.

“Did you have a conversation?”

“Yes.”

“What happened during the course?”

“He’s very [Inaudible] I’m sure can.

I’m glad to see.

I watch you on television.”

“But why come all this way to New York to cover this trial?”

All he said it says, “All the ingredients of a good murder.

It is a very attractive victim who was pregnant.

The accused is an important member of the community and so on and so forth.”

And Judge Blythin said, “Mystery.

It’s an open and shut case.”

What do I mean?

I was going to take in the back because usually I’ve talked to judges but don’t get me an opinion.

“What do you mean Judge Blythin?”

“Well, he is guilty as hell and there’s no question about it.”

Hugo L. Black:

Did she say that?

Is there any dispute that she said that she said that?

William B. Saxbe:

No.

I certainly dispute that he said that.

Earl Warren:

Look, I see what close that book.

What I’m interested in is how this got into the record?

What did the — where was it offered and what did the judge say about it?

William B. Saxbe:

Here is the civil docket of United States District Court and the title of the case Samuel Sheppard versus Maxwell.

In the proceedings, you will find no place in this where it is part of the record.

That’s where I say —

William J. Brennan, Jr.:

Well, that it is (Voice Overlap).

It’s been typed in the record.

Is there before it appears anything by you objecting to its —

William B. Saxbe:

No sir and the reason or I would —

William J. Brennan, Jr.:

There is not.

William B. Saxbe:

— say the reason.

William J. Brennan, Jr.:

There is not.

William B. Saxbe:

No sir.

William J. Brennan, Jr.:

Alright.

William B. Saxbe:

Alright, but in this record, it got in there because the judge wanted it in the record.

Abe Fortas:

But the question is was — was this deposition or statement or whatever it was, Dorothy Kilgallen offered or in what form was it referred to, what does that transcript show prior to the time when transcript sets out the — what’s in the deposition.

That’s what we’re asking Mr. Attorney General.

William B. Saxbe:

There is no showing.

I know that Mr. Bailey has it here. I don’t.

There’s no showing that it’s in the official record.

We raised this in the Circuit Court and the Circuit Court I thought handled this issue very adeptly.

In other words, the Circuit Court said that they couldn’t count on such a thing that it had no place in there and it was a ridiculously thing to be involved and —

Potter Stewart:

What said Mr. Attorney General and now I’m reading from the opinion of the Court of Appeals for the Sixth Circuit on — which appears on S 34 of the petition for writ of certiorari.

The Court of Appeals says, first of all says, the district judge held that the petitioner’s constitutional rights were violated because the trial judge failed to recuse himself sua sponte from presiding at the Sheppard trial.

The basis of this conclusion was some pretrial remarks which Judge Blythin has alleged to have made indicating his belief that Sheppard was guilty.

Then it says, the material from which this finding was made came to light after the instant petition for habeas corpus was filed.

There was put in evidence a statement of a New York columnist, one Dorothy Kilgallen Kumar wherein she stated that at the beginning of the trial, she was invited into the chambers of Judge Blythin and there told of the judge’s belief that petitioner was guilty as hell and so on.

So the Court of Appeals at least unequivocally stated that that statement was put in evidence.

William B. Saxbe:

Nonetheless, it is not in the proceeding and I recognize that this is a difficult thing to talk but there’s a lot of difficult and I would say amazing things about this record that we bring to you here today.

In this building, there is this record which composes 11,700 pages.

The thing that I am interested in is that this Court will take this case from the record and not from the extraneous material which is attempted to be introduced in the state which Mr. Bailey made here today and with the statement in the petition for the writ of certiorari and in the brief to accompany to him.

He starts right off with a statement that the Houks were called.

William B. Saxbe:

They came in and they found Sheppard lying on the floor.

That is in the case.

The record will show that he was seated in a chair and that he gave help —

Earl Warren:

Now let’s just — let’s still get away from this quite yet.

I like to know if those two blue bound books that you have just been using are a part of the record of this case.

William B. Saxbe:

There are three and the — one, two and three in the Circuit — in the District Court or in the Circuit Court, this came up in the District Court and they are the record —

Earl Warren:

Are they in the record of this case.

William B. Saxbe:

They’re the record of this case but not the entire record.

This is only the habeas corpus record.

Earl Warren:

But no part of it could be the entire record.

William B. Saxbe:

That’s right.

Earl Warren:

Now why do you say to us if it’s in that record that it is not a part of the record?

William B. Saxbe:

Simply because we had all times and our objection felt that this was not introduced.

And our index in volume 1, the proceedings and the discussion with the judge indicated that it was not to be part of the record when this comes out, it is part and that it’s in them but not official.

Earl Warren:

Did you — did you ever point out to us in your briefs that — that this was not in the record?

William B. Saxbe:

Yes.

Earl Warren:

Where do you point it out in your brief?

William B. Saxbe:

It’s in the petition to the — or in the — our petition as to the Circuit Court for review.

We point out in there that in this proceedings —

Earl Warren:

We’re not talking about that record.

We’re talking about what we have before us and on which we must decide this case.

Is there anything in your record here in your brief or in your response to the petitioner that shows that this statement was not before the court below?

William B. Saxbe:

In our brief to the Circuit Court which is a part of the record which bring — comes up here.

We did point that out as a Circuit Court.

Earl Warren:

Did you abandon that here?

William B. Saxbe:

We didn’t abandon it.

We —

Earl Warren:

Did you use it here?

William B. Saxbe:

No, we didn’t affirmatively used it.

Tom C. Clark:

Of course they held it against it.

Tom C. Clark:

They said it was in the record.

Abe Fortas:

Well the statement appears (Voice Overlap) on page 388 (a) of volume 3 of this blue transcript of record, the statement on Mr. Bailey offering or with reference to the Kilgallen statement.

Mr. Bailey says, the statement taken for a submission with the stipulation resulting from the order of the Court of May 6, 1964.

It was agreed by the parties to have the status of the deposition.

Is that in your copy of the transcript?

William B. Saxbe:

Yes sir.

I would like the Court amici brief which is in this Court.

We do not find Dorothy Kilgallen statement as a matter of record in the District Court.

Earl Warren:

That is in what brief?

William B. Saxbe:

In the amici brief.

Mr. Corrigan’s brief in this Court.

By agreement of counsel and he goes on to say, it shows your statement in which are just stated.

The agreement of counsel knows this administered since integrity of the witness is not in this view.

The statement was taken in May 9th in New York, but how did the District Court obtained the statement is not a matter of record.

Hugo L. Black:

Well does that really make any difference if it’s in the record and the judge accepts it and the Court of Appeals did it?

William B. Saxbe:

Yes sir.

I think it makes a great deal of difference simply because this.

The District Court based his opinion in the granting of the habeas corpus not on the record but on facts which he was willing to accept from the defendant’s brief, from Dorothy Kilgallen, from extra legal areas which had no place in this case.

Abe Fortas:

Did you refer —

Hugo L. Black:

Can I ask for one other question because I think probably just to the — I have a difficulty in [Inaudible].

Let’s suppose that it had been shown in the habeas corpus proceeding beyond any shadow of a doubt by evidence it could not possibly refused, but the Court had found during the trial, the trial judge did make a statement that is attributed to him as he is as guilty as hell.

Would you say that that was a part that would justify any action on our part?

William B. Saxbe:

I think that a statement for it was uncontraverted perhaps could have been considered but —

Hugo L. Black:

What effect would it have in your judgment?

William B. Saxbe:

It would have no effect upon the outcome of the case in this Court because the trial judge was not deciding the guilt or innocence, the jury was and the only question to be raised then would come from the record whether did he take this over to the jury.

Hugo L. Black:

Are you — are you saying that — I thought that was really the trouble.

Are you saying that after a person has been convicted, if a habeas corpus proceeding was found and it’s proven beyond a shadow of a doubt, he was tried by prejudiced by the judge who believed he was guilty and ordered him found guilty.

Are you saying that that have to stand as — because it’s not brought up when the lady has spoken?

William B. Saxbe:

No sir.

Hugo L. Black:

Is that the argument you’re making?

William B. Saxbe:

I — I and we make in our brief the argument that —

Hugo L. Black:

Is that — is that what you think is the law?

William B. Saxbe:

I think the law is this that — and there are cases to bear me out that if the judge is prejudiced which in this case he wasn’t but if the judge is prejudiced that the trial will stand unless it shows that his prejudice was imputed to the jury and that his handling of the trial was in error so that it makes it —

Hugo L. Black:

Have you ever heard the case of Tumey against Ohio?

William B. Saxbe:

Yes sir.

Hugo L. Black:

What did it hold?

William B. Saxbe:

Tumey said that the prejudice was built in simply because of the inherently prejudicial nature of it and the Tumey case of course says and —

Hugo L. Black:

The judgment was set aside was it not on the ground —

William B. Saxbe:

You know —

Hugo L. Black:

— the city of built-in prejudice about.

William B. Saxbe:

It was built-in prejudice.

Hugo L. Black:

But suppose instead of having a built-in prejudice, you know that he was prejudiced because he said he was prejudiced.

William B. Saxbe:

Yes but in the Tumey case that they say that given the judge all benefit of being honest which they say that this judge Morner was.

This is beyond the expectation of human frailty that where he has a financial interest in this case why you can say that he could be presumed prejudice.

Hugo L. Black:

What they were saying there was that the situation showed that he had to be prejudice or going to assume his prejudice.

Now let’s say that they didn’t have to assume it.

They proved it beyond the shadow of a doubt in the habeas corpus proceeding.

What should be done?

William B. Saxbe:

Oh, if they had proved that he was actual prejudice, I think you should (Voice Overlap) you should take another look at it but —

Hugo L. Black:

Yes but you shouldn’t take his thought if you said it?

William B. Saxbe:

Your Honor, there’s a number of cases which hold that even though the — the judge may have a view and may think the man guilty if he does in fact afford that man a fair trial that the conviction would stand if — and in this case, you must look at the record, you must look at the voir dire examination to determine whether or not the fair trial was given, the statement by Dorothy Kilgallen, the statement by Murray or the statement by anyone else basically has to do with this so-called prejudice but basically, we can’t look beyond what he did and what he said.

Hugo L. Black:

But that’s what they claim if they want to look at what he said.

William B. Saxbe:

I know.

Earl Warren:

Did you put in any — anything to combat this statement of Murray’s and Dorothy Kilgallen?

William B. Saxbe:

No sir.

First, because the Kilgallen statement was not officially in the record, and secondly, what could you say to combat the statement of a dead man?

You could attack the voracity of the person who makes the affidavit and we could perhaps in this but the legal effect of trying to exonerate a dead man on something which he no doubt didn’t say is — would be more detracting from the case and add to it, it seems to me.

Tom C. Clark:

You could require her to be in the court.

William B. Saxbe:

Sir?

Tom C. Clark:

You could have required her to be either under oath or in the courthouse at the trial.

William B. Saxbe:

This hearing on habeas corpus was in Dayton at that time and the judge was willing to accept this.

We were opposed to it constantly.

And in my opinion, it added nothing to the Court except what the District Court wanted to believe and I, from looking at the statement of the District Court, I mean the opinion of the Court, I don’t believe he looked at the record.

I believe they accepted the defendant’s brief and I certainly can’t find any place in there for the actual facts of the case as pointed out in the record were brought out.

I have here some 37 instances of misstatement of facts in the petition for certiorari in this Court and I mean some of them is going to judge — he said no matter how, a set of circumstances which has never changed to this day.

He in fact gave nine different versions of what happened after he awoke on that couch.

He was dis — shown to the judge or to the jury as an absolute liar, unworthy of belief.

And the jury that considered these facts, considered the evidence that was in Court and we have evidence in the record again of the numerous safeguards that the judge took.

This voir dire examination is 1600 pages.

Now you raised repeatedly the question of venue or continuance.

The judge didn’t rule on this and that is he didn’t deny he continued them and he said, let’s see if we can get a fair jury.

Let’s see if we can get a good jury.

They spent 1600 pages and nine days I believe it was in examining these people or the jury.

They had a panel of 75.

They did not exhaust the panel, periphery charges remained for the defense.

Byron R. White:

One apiece on each side was not used, isn’t that right?

William B. Saxbe:

There was one on each side periphery that was not used.

The voir dire examination went into the publicity.

It went into the understanding that they had of the case, all of the normal questions and went even further than the normal thing.

Now one of the basis of — we find forward in here is the statement that Judge Edwards, the dissenting judge in the Circuit Court agreed with the Circuit judge or with the district judge in the pretrial publicity and this is not true.

Judge Edwards in his dissent found no fault with the pretrial publicity.

He based his dissent on the trial publicity which was basically a report of what actually went on in the courtroom.

[Inaudible]

William B. Saxbe:

In some — in some instances, they followed the record and I would say in all instances, the Court of Appeals evidently read the record, they followed the record.

And the things that Judge Edwards based his dissent on, the Jekyll-Hyde thing, the similar things as that were factual, things that happened, but a great many other things actually did not happen.

Now for instance this story just like in the [Inaudible] idea that he was hounded by the law enforcement people that somehow he suffered greatly by the people moving in on it.

Ten minutes after he called Mary Houk, he was spirited away by his brother to their private hospital.

He was interviewed not continuously as would have you believe here but he was interviewed I think twice in the hospital.

He came downtown and made a statement to the police even before the inquest.

These facts have become confused to the point and repeated so often that you would believe them to be true, now in my brother Bailey statement this morning, you would gather from him that this was a trial, a civil trial against Cleveland Press.

William B. Saxbe:

This statement, this book, this chapter of Mr. Seltzer from his book, The Years Were Good was written about the time that this case came to the Supreme Court — this Court in 1956.

At no place was in the agreed statement of facts and there was again an agreed statement of facts which was not followed in the pleadings, but was brought in by the ear so to speak by including it as an appendix to his brief which he filed in the District Court.

Now the reason that the attack was taken this morning, that this press was not really so bad, that this presumption of prejudice could then overcome if the Court had behave properly, if they had run a trial properly.

I submit that this was a trial by the book.

It was a good trial, Judge Blythin on a strict courtroom.

He maintained order and he cautioned the jury every time they left the jury box about receiving or carrying on any discussion, conversation, reading about the case.

He couldn’t have done more and a review of the record is the only thing that is going to bring this out.

Now why to impute to this Court a failure simply because your cases which have build up over the years must involve a failure on the part of the state some place.

In other words, the action of the newspapers or the TV is not enough.

You must impute this to the judge that he allows this to get in that the state is somehow negligent.

In the Rideau case, the sheriff appears on TV with the — with the prisoner.

The Irvin case, they permitted this confession to get out.

In the Estes case, they tolerated the cameras in the courtroom.

In other words, to bring this over, you’ve got to involve the state in the situation.

Abe Fortas:

Mr. Attorney General is — are there any rules of court in Ohio with respect to photographing the jury in the courtroom?

William B. Saxbe:

Yes sir.

The usual cannon and the jury was not in fact photographed except before the Court had convened or afterwards.

It would be — you would lead to believe from the testimony that they were in there with cameras and they were photographing.

Such was not the case.

The defendant was photographed in the courtroom only when he permitted it and the judge so directed the press that the defendant would not be photographed except when he agreed to it and he readily agreed a number of times and brought his family in and others that he wanted to be in these photographs.

Abe Fortas:

I notice that one of these press clippings does include a photograph of the jury and it looks as if the photograph may have been taken in the courtroom.

William B. Saxbe:

Yes sir, it was taken in the courtroom but it was before — I don’t know in this particular case whether it was before they convened or afterwards but it certainly was not during the trial and you’ll find no allegation of such a thing in there.

Abe Fortas:

Can you tell us whether that is a general practice or unusual practice or do you know of any other murder case in Ohio in which photograph of the jury has been permitted even before or after a jury.

William B. Saxbe:

Yes, this is not uncommon to take people’s pictures with their permission when there is actually nothing happening in the courtroom.

Now there were pictures taken that you’ll find in the brief and they allege that these pictures were taken in jurors’ home and that this therefore was prejudicial.

This is not the case.

There was a Mrs. Mansini who was a juror.

She never took part in any deliberations of the jury.

She sat there with them.

The pictures which are purported to be in a juror’s home are in the home of Mrs. Mansini who was in fact for the purposes of this case not a juror at all.

Abe Fortas:

I don’t know whether this is in the record but I notice from the clipping of the Cleveland Press, November 3, 1954, it appears that counsel for Dr. Sheppard did object to these photographs.

Do you know whether that’s in the record?

William B. Saxbe:

He did object to it.

I believe, you will find that he did object, but he objected that they were taking the defendant’s photographs and Judge Blythin replied that if the defendant didn’t want to be photographed, all he had to say was he didn’t want to be and they — he would not be.

Abe Fortas:

Now this relates to the photographs of the jury at this clipping is it correct?

William B. Saxbe:

He objected.

The judge said that there will be no photographs before or during and this objection I believe came up on a motion for a new trial.

And the actual testimony of the jurors that — and by the way, there were three jurors put on at this motion for a new trial to determine if the so-called prejudicial statements of the press during the trial had any effect on them or whether they were in fact prejudiced and the results were negative.

The —

William J. Brennan, Jr.:

Did they actually testify?

William B. Saxbe:

They actually were sworn and they testified, three jurors in the motion for a new trial.

There again is the fact that it is to be found in the record.

This —

William J. Brennan, Jr.:

Incidentally what’s your Ohio practice about sequestering juries in cases like this?

William B. Saxbe:

Juries are not sequestered in Ohio and it is in a very unusual occasion when it is.

William J. Brennan, Jr.:

And how — when it is — how is it brought about?

William B. Saxbe:

Usually by agreement of the parties that is by the prosecutor and the defense attorney or the defense attorney would go to the judge and give reasons for it, they would be sequestered.

But this —

Potter Stewart:

But in Hamilton County, Ohio a different part of the state to be sure, things might have changed there.

It is my distinct recollection that in a first degree murder case it was almost automatic to have the jury sequestered.

It’s not automatic.

It was the usual thing to do.

I don’t remember any first degree murder case in which it was not done.

William B. Saxbe:

This was discussed in the brief.

It was discussed in Mr. Bailey’s brief.

Mr. Bailey took the attitude that — and there again, we’re talking about a deceased man, Mr. Corrigan probably did not object because he felt that the sequestering over a period of time would be more harmful than it would be to helpful.

Of course after they go into deliberation after they got the case they are sequestered and they were sequestered during all of their deliberation.

Earl Warren:

Is that absolute?

William B. Saxbe:

It was absolute.

Earl Warren:

I understood from the record that they’re permitted to call home and talk to the relatives and so forth.

William B. Saxbe:

That is one of the issues in this case.

It was decided in the highest Supreme Court which again you would have to get from the record and not from Mr. Bailey’s petitioner brief, the highest Supreme Court decided that that was not illegal in Ohio.

It was not prejudicial.

Earl Warren:

Well that wasn’t I was talking about.

You said it was absolute but it wasn’t absolute, was it?

They were permitted — they’re permitted while they’re deliberating on the case to telephone out and telephones with their homes and so forth.

William B. Saxbe:

They were — they were permitted.

I think three of them.

They sat with the bailiff sat by the telephone, called the number and sat there and listen to all what was said.

Now in a minute or two that I have, I would like to say this and I for one and I know that this is a great issue in this case.

I don’t feel that we have to throw out the First Amendment to preserve the Sixth.

I think that they can continue together and I don’t think that that’s the only choice that we have.

I think the choice that we’re faced with in this case is basically one of the court handling of the man.

And this, Mr. Bailey and I agree the fact that I don’t find any capability or any inclination on the part of the judiciary or the legislative to infringe upon the First Amendment and you have good press and you have a bad press.

Now are we going to extend to them the privileges of the First Amendment when they have good press and take it away when they have bad.

I think that in this particular case, the judge maintained a strict decorum.

I think he ran the trial by the books.

I think he got a good jury and I think Sam Sheppard was convicted because he was shown by the exhibits and the witnesses to be guilty and that the facts that were brought in to the courtroom on his behalf might have shown that he was a good fellow but certainly had nothing to show in regard to his innocence as charged.

Potter Stewart:

Do you think the evidence show that he was guilty of second-degree murder?

William B. Saxbe:

I think the evidence was sufficient to find guilty of first-degree murder but —

Potter Stewart:

There was really no evidence of second-degree murder, was there?

William B. Saxbe:

I know but you know the rule in Ohio that they could have found him guilty or manslaughter just as well.

Potter Stewart:

Yes.

William B. Saxbe:

But it certainly not compromised.

They determined, I presume, although we don’t have evidence on this that this was in hot blood hood which is what second-degree murder is in Ohio and —

Hugo L. Black:

Suppose it had been determined that he was guilty but he was not when he did it, what degree of murder would that had been?

William B. Saxbe:

In Ohio, being drunk would have no effect, yes sir.

Hugo L. Black:

Have no effect at all.

William B. Saxbe:

If premeditation was there, he would be guilty of first-degree murder.

Hugo L. Black:

If what?

William B. Saxbe:

If premeditation, if this —

Hugo L. Black:

Suppose he is so drunk and you couldn’t premeditate.

William B. Saxbe:

If — if there was no premeditation shown and that is what happened in this case, everything was shown by premeditation, he was probably guilty of murdering a second-degree.

Hugo L. Black:

What was he found guilty of?

William B. Saxbe:

Murder in the second-degree which is murder in hot blood.

If there was no premeditation or hot blood, it would probably manslaughter if it’s an illegal act.

Earl Warren:

We’ll recess now.

John T. Corrigan:

Mr. Chief Justice, and may it please the Court.

At the outset, may I address my remarks to some of the statements heretofore made to this Court.

One was regarding the question of photographs in the courtroom. Judge Blythin of the outset had instructed counsel on both sides that he would permit photographs to be taken when the Court was not in session, provided that the taking of the photographs was without objection.

A substantial number of photographs were taken of the counsel for the defense and the defendant and it was not until many days had passed and many photographs had been taken that objection was made and when the objection was made then of course no photographs were taken thereafter.

With regard to the question of the sequestering of a jury, the practice in Ohio has been that unless and until a case is presented for deliberation, the jury is not sequestered.

In the last session of the legislature, this was changed so as to provide for a sequestering of the jury throughout the entire trial in the instance of a first-degree murder case.

With regard to the —

I beg your pardon sir.

[Inaudible]

John T. Corrigan:

Yes it was.

It was not the usual practice.

[Inaudible]

John T. Corrigan:

That is correct sir.

On occasions it was and it was a rare occasion that a jury would ever be sequestered throughout the entire trial even in a first-degree murder case.

[Inaudible]

John T. Corrigan:

For the last ten years sir.

Hugo L. Black:

In Cuyahoga County?

John T. Corrigan:

Yes sir.

Hugo L. Black:

Was it the practice of the attorneys to ask it and get refused or was this done (Voice Overlap)?

John T. Corrigan:

The practice was not to ask.

The practice would be by a motion on part of the defense counsel.

Hugo L. Black:

How long have you been a prosecuting attorney?

John T. Corrigan:

Ten years sir.

Hugo L. Black:

And during that time was it customary for lawyers to ask for it —

John T. Corrigan:

No sir.

Hugo L. Black:

They didn’t ask about it.

John T. Corrigan:

No sir and there has no been — to my knowledge, there has been no motion to sequester a jury during that ten-year period.

Earl Warren:

And none have been sequestered.

John T. Corrigan:

No sir, not during that time.

Potter Stewart:

From the Cuyahoga County?

John T. Corrigan:

Beg pardon?

Potter Stewart:

You’re talking about Cuyahoga County.

John T. Corrigan:

Yes sir.

Gentlemen, the issues before this Court as I see them are those upon which the District Court had predicated its decision and there are four separate issues.

One, the newspaper publicity before and during the trial, pardon me, which was assigned as error in the original appeal.

Secondly, the issue that the trial judge should have disqualified himself because of prejudice, this was not assigned as error.

Thirdly, evidence that the defendant had refused to submit to a lie detector test, this was not assigned as error in the trial court although it was raised in the Court of Appeals, and although it was raised in the Supreme Court.

And fourthly that the bail in charge of the jury after the case was submitted to it improperly allowed individual jurors to make telephone calls to their families.

With regard to issue number one, the newspaper publicity before and during the trial, the District Court’s decision I believe is somewhat equated with the case of Irvin versus Dowd and Rideau versus Louisiana, the facts of which I will not repeat here for the Court is well aware of the facts in those instances.

It is significant however to point out that in the Irvin versus Dowd case, the prosecutor and police officers issued press releases stating that the defendant had confessed to six murders.

This is not the case here.

There was no press releases, no statements made relative to a confession of any sort.

And at the trial in that instances —

William J. Brennan, Jr.:

[Inaudible]

John T. Corrigan:

I beg your pardon?

William J. Brennan, Jr.:

[Inaudible]

John T. Corrigan:

No sir.

In that instance, the jury panel consisted —

William J. Brennan, Jr.:

(Voice Overlap) any announcement of one if there wasn’t any?

John T. Corrigan:

I beg your pardon?

William J. Brennan, Jr.:

How could there be announcement of one if there wasn’t any?

John T. Corrigan:

I’m sorry I didn’t hear you sir.

William J. Brennan, Jr.:

It’s alright.

Hugo L. Black:

Did the DA make any informal announcements?

John T. Corrigan:

No sir.

There were no announcements made to that effect.

Hugo L. Black:

I mean to any effect with regard to trial?

John T. Corrigan:

There may have been some statements made in response to questions, yes.

Hugo L. Black:

Questions in the news reporters — questions of the reporters.

John T. Corrigan:

Yes.

Earl Warren:

Were the exculpatory statements of the defendant publicized?

John T. Corrigan:

Yes sir.

Earl Warren:

Where they did get the —

John T. Corrigan:

The record —

Earl Warren:

— where did they get those?

John T. Corrigan:

From the defendant.

Earl Warren:

From the defendant.

John T. Corrigan:

Yes sir.

The record has replete with instances wherein the defendant was proclaiming his innocence and members of his family.

Earl Warren:

And he himself made —

John T. Corrigan:

Yes sir.

Earl Warren:

— made public those statements that were made to the authorities and that were eventually in the trial.

John T. Corrigan:

That is correct sir and as a matter of fact in connection with that, I might point out that regarding the inquest he appeared voluntarily as a witness and he testified voluntarily.

He was not then a defendant nor was he charged.

And with regard to the commotion that occurred at the inquest, it occurred because defense counsel insisted upon participating in the inquest and when he was denied this opportunity, then he walked out of the hearing and the hearing was immediately thereafter — it immediately ceased.

There was no continued hearing.

Earl Warren:

As I read it, he wanted to make a statement.

John T. Corrigan:

That is correct sir.

Earl Warren:

But the coroner (Voice Overlap)

John T. Corrigan:

And the coroner denied him that opportunity.

Tom C. Clark:

Getting back to the press — is there a press room in the court building?

John T. Corrigan:

Is the press normally —

Tom C. Clark:

Is there a press room in the court building?

John T. Corrigan:

Yes it is, however, I think it would best be described as a two by four room.

Tom C. Clark:

Is it —

John T. Corrigan:

It’s of no consequence.

Tom C. Clark:

How did you take care of the large number of press representatives?

John T. Corrigan:

The — a portion of the courthouse was made available to the representatives of the press for their use and it was a relatively small area, Your Honor.

William J. Brennan, Jr.:

Well as a matter of fact, they had place cards didn’t they in the courtroom itself?

John T. Corrigan:

In the courtroom, the judge did provide for places where the press representing only the —

William J. Brennan, Jr.:

And (Voice Overlap) three of the four benches?

John T. Corrigan:

That is correct Your Honor.

This was however not in the trial area but beyond the trial area.

William J. Brennan, Jr.:

I thought inside of the trial area was a long table behind which there were place cards for various members of the press.

John T. Corrigan:

That is correct Your Honor.

That courtroom, I might add, at best will accommodate perhaps 30 or 40 people.

William J. Brennan, Jr.:

And 35 of them were press representatives?

John T. Corrigan:

I don’t know the number, I would say that a substantial number were press representatives, yes.

Earl Warren:

The statement was that there is only one half of one row that would just normally use for the public that was left to the public, all the rest of the courtroom have names on the seats for press representatives, is that correct?

John T. Corrigan:

I don’t know that that is correct sir, but if it is one half of one wall, this would be one half of the available space in any event.

Earl Warren:

No, I thought that the last row or one of the rows — half of one of the rows was reserved for the members of the family of the victim.

John T. Corrigan:

That is right.

Earl Warren:

And then the other half (Voice Overlap) —

John T. Corrigan:

The family (Voice Overlap)

Earl Warren:

— that one row was for the public and that’s the only part of it that was open to the general public that all the rest of it had tags on it for specific representatives of the press, is that true?

John T. Corrigan:

That is true.

Hugo L. Black:

Was the place that you had there for the press is larger than the place over here?

John T. Corrigan:

I don’t know what sir.

Hugo L. Black:

Was your place or space you had with the press is larger as the space over there and here that the press has occupied?

John T. Corrigan:

I would say that the whole courtroom would not facilitate more than this group of people in this immediate here and approximately half of that was the press.

Tom C. Clark:

Do you know when they take the picture of the juror — jurors, the jury?

John T. Corrigan:

The — a picture was taken of the jury in that — in the session however.

Tom C. Clark:

In the court room.

John T. Corrigan:

In the court room, yes sir.

Tom C. Clark:

Were they in the box?

John T. Corrigan:

Yes sir, they were in the box.

A comparison between the Irvin versus Down and the Sheppard case reveals that in the Dowd case there were 430 persons who were of the original panel whereas there were 75 in the Sheppard case and not all of the 75 were exhausted.

And of the 75, 11 of them were immediately excused for justifiable reasons or were not found.

In the Rideau case, the Court conceded or considered conceded circumstances and that was on the voir dire, the counsel for Rideau had requested the certain jurors who later decided the case be excused for cause.

There were two deputy sheriffs who sat on that jury.

No such incident occurred in the Sheppard case.

There were two members of the jury or three members of the jury rather who had convicted whom who had stated on voir dire that they had seen and heard Rideau’s testimony or Rideaus’s statement televised — I mean television station.

This was not so in the Sheppard case.

Tom C. Clark:

They all read I suppose something about it in the papers.

I suppose they’d all read something about it in the newspapers.

John T. Corrigan:

In Sheppard case?

No sir.

Some of them had denied.

Some of them had admitted that they have read something.

A number of them had denied and those that have made admissions as to having read something had indicated that they were able to put out of their mind any opinion that they had and they have not formulated any fixed opinion relative to the guilt or the innocence of this defendant.

Hugo L. Black:

Is there any mechanical recording of the testimony or any part of the proceeding?

John T. Corrigan:

I’m sorry Your Honor, what was that?

Hugo L. Black:

Is there any taping or mechanical recording of any of the proceedings?

John T. Corrigan:

No sir.

Earl Warren:

I’m going to refer to the Winchell statement over the radio to the effect that Dr. Sheppard was the father of a child of some woman who was in jail for robbery.

John T. Corrigan:

Your Honor, on one day the defense counsel called to the attention of the Court the fact that Winchell had made a statement on another day that Considine have made a statement.

Now with regard to one of them and I cannot for the moment tell you exactly which one, the Court then questioned the jury as to whether or not any of the jurors have heard that broadcast.

Potter Stewart:

This was Winchell —

John T. Corrigan:

One of the jurors had indicated that they have.

He then ask whether or not that juror would still follow the admonition of the Court relative to predicating his decision and the evidence in the court room and putting out of his mind any outside influence.

This juror had responded to the court that while he heard — heard on the radio, he did not listen to it.

Now in a subsequent day when defense counsel called the other broadcast to the Court’s attention, the court said this, “I’m not going to question the jury.

I am going to again admonish them as I have each time that we have come into session, but I’m not going to question them because we cannot daily badger the jury as to whether or not they heard or they read something.”

John T. Corrigan:

And if you will please, it would point up a place wherein they might go to look for information if daily, the court were to say, did you read this in the Cleveland Press?

Did you read this in the Cleveland News and so on?

I submit gentlemen that in this case here, we have on trial the jury system in the United States and I am going to permit the great writ of habeas corpus to provide a time after trial has had and after appeal has had, and pardon me of the use of the vernacular, but are we going to permit the throwing in of the kitchen sink and now claim that the defendant was denied a fair trial when the record very clearly points out that all of his rights were afforded him by an unbiased judge, by a judge that had ruled in a manner wherein there is no error made manifest whatever by the record, by a jury that was selected by competent counsel on both sides, by a jury that was subjected to a voir dire examination that lasted a couple of weeks, by a jury that subsequently on a motion for a new trial was brought back and questioned again.

Now at this time, the defense counsel did not see fit to point out that this juror was in anyway contaminated or prejudiced.

Now with regard to the statement of Dorothy Kilgallen, a statement of a dead man, a hearsay statement, the raucous kind of evidence, but what do we have to rebut it?

We have the statement of Fred Garmone, one of the defense counsel who in a deposition hearing said that he was satisfied that Judge Blythin was in no way prejudiced or whatever.

I might have too that the record bear out that Judge Blythin coincidentally is one of the finer judges in our county or was.

The record points out that Judge Blythin said to the defense counsel, “If you have any idea that I may be prejudiced in this matter in any way whatever, I will step down.”

Our law of Ohio provides that defense counsel must file an affidavit of prejudice but Judge Blythin in this instance, indicated that that wouldn’t be necessary, but merely upon their request, he would step down and not hear the case.

Byron R. White:

Do you have in the record (Voice Overlap) —

Earl Warren:

What prompted that?

John T. Corrigan:

I’m sorry, I didn’t —

Earl Warren:

What prompted that statement from him?

John T. Corrigan:

That was prompted by the fact that there was a discussion ahead in the chambers relative to Judge Blythin having a son who was a member of the homicide unit of the Cleveland Police Department.

His son incidentally did not participate in this investigation in any manner or whatever nor did he appear as a witness and was in no way afoul and it was this discussion prior to the term of the trial that prompted the Court to indicate to the defense counsel that he would step down.

Abe Fortas:

Is this in the record, Mr. Corrigan?

John T. Corrigan:

That is in the record, yes sir.

Abe Fortas:

In the habeas corpus?

John T. Corrigan:

I’m sorry.

I do not know that it is in the record on appeal — it is in the appeal record, it is not in the trial record as such.

Abe Fortas:

It’s in the — it’s not in the habeas corpus record (Voice Overlap) —

John T. Corrigan:

It is in the habeas record, yes.

Abe Fortas:

It was developed at habeas corpus proceeding?

John T. Corrigan:

Yes sir.

Earl Warren:

I’ve been wondering why if you’re protecting the jury system here and protecting the integrity of a deceased judge of high standing, why you did not question the statement of Dorothy Kilgallen to the extent of cross-examining her as to which — as to the truthfulness of it and to the extent of placing her under oath?

John T. Corrigan:

Your Honor, I would have been most pleased to do so.

However, at the time that this matter came before the Federal District Court and we appeared as counsel, the judge in that instance said to us, the is the prosecuting attorney of Cuyahoga County, you are not attorney of record.

We made an oral motion to be admitted and he denied the motion.

We were precluded from participating in the habeas corpus matter and the District Court level which hearing incidentally was in private and not a public hearing at any time.

Earl Warren:

The habeas corpus matter was private?

John T. Corrigan:

Yes.

It was a private hearing.

It was not a public hearing and that is from once we appeal now on this habeas corpus.

Tom C. Clark:

To whom did he permit to represent the state?

John T. Corrigan:

The State of Ohio was represented by the Attorney General because the action is the petitioner against the warden and the warden is represented by the Attorney General.

So technically, the Attorney General is the counsel of record and the prosecuting attorney though the counsel in the matter on trial and the matter on appeal was not technically the counsel in the habeas corpus proceedings.

Earl Warren:

Well, I’m just a little puzzled by your system there.

As I have followed it through the years whenever Ohio is in the Court on a criminal case here, the district’s attorney of the county where the case was tried represents him not to – represents the state and not the Attorney General.

John T. Corrigan:

That is correct sir except in the habeas corpus as I have pointed out now.

Earl Warren:

In all habeas corpus cases the Attorney General represents.

John T. Corrigan:

Only if — only if the respondent is an office holder represented by the Attorney General.

Let us assume that the habeas corpus was brought against the sheriff of the county.

I represent the sheriff as the District Attorney on my district.

Earl Warren:

I see, yes.

John T. Corrigan:

So that I would then be here on a habeas corpus.

Earl Warren:

I see.

John T. Corrigan:

But one brought against the warden would involve the office of the Attorney General.

William J. Brennan, Jr.:

Doesn’t the Attorney General even in the proceedings against the warden sometimes let the District Attorney to handle habeas corpus?

John T. Corrigan:

He will do this Your Honor if the court permits him to do so and in this instance where we ask permission, the court denied us permission to participate.

William J. Brennan, Jr.:

The Attorney General wants you to handle the habeas corpus and not himself?

John T. Corrigan:

Did who?

William J. Brennan, Jr.:

Did the Attorney General want you to handle the habeas (Voice Overlap) —

John T. Corrigan:

The Attorney General was most welcomed to have us come in.

Hugo L. Black:

What did the judge say the reason he would not let you (Voice Overlap)?

John T. Corrigan:

I would only have to read his mind Your Honor.

I have no reason to know or believe as to why the —

Hugo L. Black:

Did he not give you the reason or did he give any reason?

John T. Corrigan:

No reason whatever, but he flatly denied and said that you will not be permitted to —

Hugo L. Black:

Enter the trial at all.

John T. Corrigan:

Yes sir.

Hugo L. Black:

Where is that in the record?

Where is that in your — where can we find that in the record?

John T. Corrigan:

Where could you find that in the record?

Hugo L. Black:

Yes, yes.

John T. Corrigan:

I don’t know that the transcript was made of that particular statement Your Honor, but I can vouch for it and certainly the Attorney General who was present there can vouch for it.

Hugo L. Black:

Well, I don’t know with that but I didn’t have or not to be in this record if it is so the three-volume typewritten record.

How did you have and not to be —

John T. Corrigan:

I don’t know that it is not in the record Your Honor.

Hugo L. Black:

You don’t know whether it is or not.

John T. Corrigan:

No I do not.

Hugo L. Black:

You simply say that on your request by the Attorney General agreed to a district judge declined to let you represent the state —

John T. Corrigan:

That is correct sir.

Hugo L. Black:

— and be in the courtroom.

John T. Corrigan:

That is right.

Tom C. Clark:

Mr. Corrigan, why was the trial in camera? You said the trial was secret, why was it secret?

John T. Corrigan:

This again I do not know.

The district judge conducted his findings in his chambers or in [Inaudible] public.

Tom C. Clark:

It’s all submitted on stipulation agreement?

John T. Corrigan:

Yes Your Honor, there was an agreed — of stipulation between the Attorney General and the counsel representing the petitioner.

Tom C. Clark:

There’s no occasion then to have a hearing in the open courts if it was all on agreement.

You don’t mean to say that —

John T. Corrigan:

On the stipulation of facts, I must agree with the Court that there would be no occasion (Voice Overlap) —

Byron R. White:

Wasn’t there an argument?

John T. Corrigan:

— and such.

Byron R. White:

Wasn’t there an argument Mr. Corrigan?

John T. Corrigan:

I don’t believe so.

Byron R. White:

In these briefs?

John T. Corrigan:

There were briefs filed, yes sir.

Byron R. White:

But no oral argument.

John T. Corrigan:

I was not there Your Honor.

John T. Corrigan:

I cannot answer that —

Tom C. Clark:

Those briefs were publicly filed were they not?

John T. Corrigan:

Yes they were Your Honor.

Tom C. Clark:

Was there anything secret about the habeas corpus hearing, anything on the attack on his —

John T. Corrigan:

Well, it was secret in the sense that it was not public in that there were not witnesses produced.

There was not evidence tendered in open court. (Voice Overlap).

Tom C. Clark:

As far it is agreed that Miss Kilgallen was just driving the statement.

So if it had testimony, you don’t doubt what the judge would have had in an open court even.

John T. Corrigan:

I certainly don’t doubt that for a moment Your Honor.

Earl Warren:

Mr. Corrigan, I notice back that your name is the same as the man who defended him, is that pure coincidence or –?

John T. Corrigan:

We are not related —

Earl Warren:

You’re not (Voice Overlap)

John T. Corrigan:

We’re distant relatives.

Earl Warren:

I have an idea that was a —

John T. Corrigan:

There’s a lot of Corrigans Cuyahoga County.

Thank you.[Laughter]

Byron R. White:

Mr. Corrigan, one more question.

What would be your view if — if the evidence were quite clear that the trial judge had remark from Miss Kilgallen that he believe that the defendant was guilty and that he had said to a court officer that he believed the defendant was guilty and he went right ahead and tried the case.

What do you think the —

John T. Corrigan:

Certainly, I believe that if the attending judge at this preconceived opinion, he should disqualify himself and if he failed to do so, it would seem to me that his preconceived opinion and idea would someway, somehow creeped into the record (Voice Overlap) that will affect his judgment.

Byron R. White:

So if we believe that the judge did say that, you would say we should reverse this, that we could set this aside?

John T. Corrigan:

I don’t think that it is a constitutional question.

I think that it is a question that might be reviewed an error for an appeal —

Byron R. White:

(Voice Overlap) — reaches any constitutional dimensions.

John T. Corrigan:

I beg your pardon?

Byron R. White:

You don’t think it reaches any constitutional dimension?

John T. Corrigan:

No, I do not.

But in any event, I can say that on the record, we will not find that Judge Blythin was biased or prejudiced in any way and I can say to this Court which of course — what are we doing here, we are equating the statement of Dorothy Kilgallen with the reputation of a judge, with the statement by defense counsel Garmone to the effect that he was satisfied that he was in prejudice with the fact the people have tried the case, the defense counsel never raised this issue and the first time it comes before this Court is ten years later on an unsworn statement, statement that’s undoubtedly made and one which could not be rebutted because of the death of a man that presumably made the statement.

Byron R. White:

Well, is there any suggestion Mr. Corrigan if Miss Kilgallen did have this interview with the judge before that time that anybody knew anything about that before the occasion long after the trial when (Voice Overlap).

John T. Corrigan:

No suggestion to that Your Honor.

Earl Warren:

Mr. Corrigan, I wonder if in the defense of a habeas corpus judge couldn’t be said that the Attorney General of a state chose to say that he did not questioned the voracity of Miss Kilgallen because of her eminence, is that true?

John T. Corrigan:

Yes Your Honor.

Earl Warren:

So he didn’t — not being true.

John T. Corrigan:

He did it when he’s asked to —

Earl Warren:

He wouldn’t have much of an opportunity to determine what the facts are, would he?

John T. Corrigan:

That is correct, Your Honor.

Abe Fortas:

Mr. Corrigan, as I understand that Mr. Murray testified to somewhat the same effect as Miss Kilgallen.

Is Mr. Murray a clerk of the trial court for [Inaudible]?

John T. Corrigan:

Mr. Murray was a court attaché.

We have 23 judges on the Common Pleas Court in Cuyahoga County.

Mr. Murray worked for the judges and one day might be working for one judge and another day for another judge depending upon what room they were seated in a particular time.

And he worked in what was known as room 1 where they pass upon motions generally and hear matter in equity and he did have contact with Judge Blythin.

And again, it was some eight or ten years later that Mr. Murray made this statement that some several months before the trial in a general discussion, Judge Blythin made a remark something to the effect that he believed that Sheppard was guilty.

Murray went further however and Murray said that there were other people present.

Abe Fortas:

Yes.

John T. Corrigan:

But he couldn’t remember who the other people were.

Abe Fortas:

No, the — didn’t he remember the name of the lawyer Macca or Mayer?

John T. Corrigan:

No sir.

Abe Fortas:

That’s —

John T. Corrigan:

And I might further point out and this is common knowledge that Mr. Murray had been previously operated on by one of the doctors in the Sheppard family and Murray’s son is an osteopathic physician who has worked out of the Bay View Hospital.

I think that without attacking his credibility here, I think that we can say certainly that this shows that he had an interest in this matter.

Abe Fortas:

Well, however that maybe.

Earl Warren:

Thank you Mr. Corrigan.

Mr. Bailey.

F. Lee Bailey:

May it please the Court.

I think much of the confusion as to the facts in this case which I frankly didn’t expect to argue at this level, arises from the fact that neither Mr. Saxbe nor Mr. Corrigan has had anything to do with this case or in the appearance except the argument in the Sixth Circuit Court, neither appeared in the District Court and Mr. Corrigan never tried to appear.

William O. Douglas:

Well who did try on behalf of the District Attorney who appeared in the habeas proceeding in the District Court?

F. Lee Bailey:

On the first day of our conference with Judge Carl Weinman in January 1963, Mr. Goodthrough Bowerman appeared for the County of Cuyahoga.

Mr. Kessler and Mr. Cianflona appeared as did I and the judge has (Voice Overlap) remember.

Kessler is the Assistant Attorney General who handled the case through the District Court.

F. Lee Bailey:

Mrs. Mann was asked if she were a member of the District Court in the Southern District of Ohio and she said no and the judge then said, then you’re not entitled to appear and we had a lobby conference.

Later, she was admitted by a special motion.

You will find that Mrs. Mayer not only appeared but asked questions of Garmone and Murray.

And then —

William J. Brennan, Jr.:

Is this the attorney or the county?

F. Lee Bailey:

County attorney (Voice Overlap) —

Byron R. White:

He is the assistant to Mr. Corrigan.

F. Lee Bailey:

Assistant to Mr. Corrigan, very much participated.

She was a member and permitted to appear but did not show in our meetings in Dayton.

In answer to Mr. Justice Fortas the question —

Earl Warren:

She does not appear in Dayton you say?

F. Lee Bailey:

That’s right, after she was admitted.

Earl Warren:

But have the right to do it.

F. Lee Bailey:

She had the right to and she certainly knew about it.

She did appear during the interrogations in Cleveland.

Mr. Justice Fortas asked Mr. Corrigan whether or not an Emmett Mahar was present at that time.

Murray heard the judge make a statement and the answer to that is, yes, page 387 (a).

Mrs. Mann, did you say Emmett Mahar was present?

Mr. Murray, “Emmett Mahar was present, yes.”

Byron R. White:

And he — and he is since deceased also?

F. Lee Bailey:

He is deceased, yes.

One of great difficulties in this case Your Honor as many of the personalities are deceased.

Unfortunately, it comes to this Court 12 years after it was tried which creates problems for us all including Dr. Sheppard.

Now as to this matter of Miss Kilgallen, I think it most improper for the Attorney General of the State of Ohio to appear here and tell this Court that the statement was not acceptable.

On page 380 (a) of the record appendix and that’s in volume 3.

Nine copies I believe are before the Court.

William J. Brennan, Jr.:

May I interrupt only long enough to ask Mr. Bailey on it.

F. Lee Bailey:

Yes.

William J. Brennan, Jr.:

We’re going to have those volumes or not?

F. Lee Bailey:

Mr. Carl Royce informed me that nine copies of these three volumes had been sent to Your Honors.

F. Lee Bailey:

This is the record appendix filed by my brother Saxbe in the Sixth Circuit Court.

Byron R. White:

What page?

F. Lee Bailey:

On page 380 (a).

The concluding paragraph of the second and last brief filed by the state in the District Court and here is what was said about the statements relating to Judge Blythin’s state of mind.

The respondent is aware that the petitioner is going to present statements to the effect that the trial judge expressed his belief in the petitioner before the trial commenced.

Accordingly, respondent invites the court’s attention to the recent case of Hendrix against Hand 312 F.2d 1962 wherein the Court of Appeals in a habeas corpus proceeding held that the mere fact that a trial judge in a state criminal prosecution signed a statement in advance to a trial relating to the judges belief that the defendant was guilty of the crime charged and did not establish any infringement of defendant’s right to a fair trial.

Now this issue was met on the merits.

The evidence was not disputed by my brother Saxbe in the District Court and indeed until he sent for a copy of the docket entries in order to put together his appeal, it seems likely that he did not know for some reason this Kilgallen statement which was in fact furnished to Judge Weinman had not been noted in the record.

But when Judge Weinman was advised on May 6, 1964 in his chambers, all counsel present that evidence of Judge Blythin statement was available.

He left it to counsel to bring that evidence to the Court as they saw fit, testimony on open court, deposition under oath, affidavit or anything mutually satisfactory.

I —

Earl Warren:

Is the affidavit under oath (Voice Overlap)what affidavit?

F. Lee Bailey:

He said the evidence of which he was advised.

Earl Warren:

Yes.

F. Lee Bailey:

With respect to his pleasure is to hold a hearing or take depositions.

It could be presented to him in anyway satisfactory to both counsels.

William J. Brennan, Jr.:

That is he could produce Miss Kilgallen before him.

F. Lee Bailey:

We could do that.

William J. Brennan, Jr.:

He could take her deposition.

F. Lee Bailey:

We could do that.

William J. Brennan, Jr.:

If you agreed you could accept their affidavit —

F. Lee Bailey:

That is correct.

William J. Brennan, Jr.:

Or any other mutually satisfactory arrangement?

F. Lee Bailey:

And his order to that effect as of May 6 is clear.

William J. Brennan, Jr.:

And now what are you going to tell us that you and the Attorney General then agreed on taking the statement the way you did take it?

F. Lee Bailey:

I don’t think I have to recite anything not in the record Your Honor because on May 9th, 1964, I flew, Mr. Kessler and another Assistant Attorney General to New York and we went to Miss Kilgallen’s house.

She offered to get a notary from around the corner and we agreed to that it was not necessary and I made this statement.

Byron R. White:

Where is that?

F. Lee Bailey:

Page 388 (a).

Mr. Saxbe omitted to read this when Your Honors asked him to read the statement of Miss Kilgallen.

F. Lee Bailey:

This is the opening.

Mr. Bailey, this statement taken for submission with a stipulation resulting from the order of the Court of May 6, 1964 is agreed by the parties to have the status of a deposition.

By agreement of counsel, no oath is administered since the integrity of the witness is not in dispute.

If counsel doesn’t have the power to make that kind of agreement in a civil case such as habeas corpus, it is news to me, but if counsel having made such an agreement, have the right and the entirety to come to an Appellate Court and deny it and say the district judge have no right to accept the claim they made objections which were never made to castigate the district judge for holding in-camera hearings when in fact no hearings were other held then I think that new rules need be formulated in the habeas corpus proceeding.

Now the statement of Judge Blythin is as distasteful to me as to the judge who had to decide this issue and he could well have passed it.

He passed some that he said have significant merit, but most decisive in your determination Your Honors as to whether or not this jury entered that jury box ready for their voir dire unbiased and whether or not you should pass up the voir dire is a presumption that Judge Blythin was an honest judge and intended to do his best with this case and from some source had persuaded himself in July before there was an arrest and in October for a word of evidence was taken solely from the news media because there was no other source that Sam Sheppard was guilty as held but worse that his case was open and shut.

How in the United States with a concept of due process anywhere extent cannot judge a human being with that frame of mind to make decisions such as whether a continuance or change of venue to the great [Inaudible] of newspapers which could castigate him in the face of an upcoming election.

Whether or not — excuse me Your Honor.

Earl Warren:

May I ask you this question?

What is your answer to the statement of the Attorney General that defense counsel stated to the Court and I think he said it was in the record that he did not challenge the fairness or the bias of the judge in any way shape or form.

F. Lee Bailey:

That’s correct Your Honor.

My answer is that given by Judge Weinman in the footnote to his opinion.

He said, if the defense counsel had had an inkling of the frame of mind of the district judge which he did not, he certainly would have challenged.

These statements were not known to defense counsel and Mr. Garmone in his deposition said —

Earl Warren:

That — if the counsel made — the Attorney General made that — no, your defense counsel made that before the trial or at the time of the trial.

F. Lee Bailey:

Long before he knew Judge Blythin’s state of mind.

He never knew it until he died.

Earl Warren:

Yes.

F. Lee Bailey:

It came out accidentally not at a cocktail party.

Earl Warren:

I see.

F. Lee Bailey:

But because Miss Kilgallen made a speech when I was in the audience.

Tom C. Clark:

That was the trial on the merits before the state, the defense counsel said that he had no objection to the judge.

F. Lee Bailey:

That was before Miss Kilgallen even got to town Your Honor, before the jury was began to be impaneled.

Earl Warren:

But he made no such statement in the habeas corpus proceeding —

F. Lee Bailey:

The —

Earl Warren:

About not challenging the integrity of the judge?

F. Lee Bailey:

Mr. Corrigan was dead.

Mr. Petersilge was not interviewed and Mr. Garmone said, if I had known about that state of mind, I would have insisted that he’d be challenged.

Earl Warren:

I see.

F. Lee Bailey:

That is the state of the record.

Earl Warren:

I see.

F. Lee Bailey:

Now I wish to mention very briefly two remaining issues.

First, on the lie detector evidence, it is true that although tardy the objection was made to the introduction of evidence that Sheppard have refused the lie detector, it was not appealed to the Ohio courts.

Judge Blythin, I’m sorry, Judge Weinman, I believe as I read Fay against Noia had the authority if he saw fit to interpose as a bar to Sheppard’s claim of this constitutional violation waiver.

He did not elect to do so.

The Sixth Circuit usurped that function and speculated that Corrigan wanted the jury to know this fact and therefore waived objections to his admissibility.

I think this was unwarranted and I think it was error.

The Sixth Circuit also ruled that the phone calls from the jurors to their homes which were not monitored.

The bailiffs testified that they could only hear the words spoken, not the words received by the jurors.

It did not give rise to a presumption of prejudice such as this Court has held in many similar circumstances and therefore, although the district judge took note of all these presumptions and did not require petitioner to produce the evidence, suddenly in the Circuit Court we find that we should have and therefore we are foreclosed.

I think that as to the other issues, I must leave them to the brief due to time limitations.

I think that the Sixth Circuit paid short trip to the district judge’s opinion that they took away his power to find the facts and disregarded it as you will find in their amended order and that they should at least have sent the case back for remand so that many of the issues not yet litigated should have been but I think there’s more than enough here to warrant the issuance of the writ and I think that Dr. Sheppard ought to be retried if the company has any — I’m sorry, the county has any stomach for this case left within the 60 days allowed by the district judge, I thank Your Honors.