Full opinion text
TIMBERS, District Judge. I. BELIEF SOUGHT AND GRANTED Petitioner Frank Brown, a prisoner in the Vermont State Prison at Windsor, filed a petition seeking a writ of habeas corpus, pursuant to 28 U.S.C. § 2241, claiming that his conviction in the Wind-ham (Vt.) County Court of arson causing death (a capital offense equivalent to first degree murder under Vermont law) and his sentence of life imprisonment, violate his federal constitutional rights. The Court holds that the failure to accord petitioner a fair trial by a panel of indifferent jurors plus the denial of state appellate review, combined to deprive petitioner of his rights under the Constitution of the United States. Moreover, this is an extraordinary case where issuance by this federal court of a writ of habeas corpus with respect to a state prisoner and, after hearing, the ordering of his discharge, is necessary to prevent a complete miscarriage of justice. Accordingly, the judgment of conviction and sentence of life imprisonment, being in violation of the Constitution of the United States, are set aside as void. Petitioner is entitled to be discharged from detention pursuant to such void judgment and sentence. His discharge, however, will be delayed for a reasonable period of time to enable the State of Vermont to take petitioner before the court where the judgment was rendered for the purpose of correcting, if susceptible of correction, the defects which render discharge necessary, pursuant to the order and judgment of this Court entered this day and appended hereto. n. PROCEEDINGS IN THIS COURT Petitioner filed a verified petition for writ of habeas corpus in this Court July 18, 1961. An order to show cause, entered by this Court (Honorable Ernest W. Gibson) July 20, 1961 and served on respondent the same day, ordered respondent to show cause July 27, 1961 why a writ of habeas corpus should not issue. July 20, 1961, Judge Gibson disqualified himself from sitting on this matter. The same day, pursuant to 28 U.S.C. § 292(b), the Acting Chief Judge of the Court of Appeals for the Second Circuit designated the undersigned to sit in the District of Vermont to hear and determine this matter. Pursuant to such designation, a hearing was held before the undersigned in Brattleboro, with sessions July 27, August 14, 15,16, September 12 and December 22, 1961. The July 27 session was in the nature of a pretrial hearing, following which the Court entered an order directing, among other things, that appropriate pleadings be served and filed; that the complete record of all proceedings in the Windham County Court and the Vermont Supreme Court in the case of State of Vermont v. Frank Brown, be lodged with the Clerk of this Court in Brattleboro forthwith; that the hearing on this matter resume August 14 and continue in successive daily sessions until concluded; that witnesses and documents be subpoenaed accordingly; that petitioner be present at the August 14 session and at all subsequent sessions; that the first issue to be considered and ruled on at the August 14 session would be whether petitioner had exhausted his state remedies; that, in the event the Court should rule that petitioner had exhausted his state remedies, counsel should be prepared to go forward August 14 with the hearing on the merits; and that the application of the American Civil Liberties Union for leave to participate as amicus curiae be granted. At the August 14 session, after hearing argument by counsel, the Court made a preliminary determination that petitioner had exhausted his state remedies. Thereafter, the August 14, 15 and 16 sessions were devoted largely to identifying, marking in evidence and referring to exhibits, including the records of the state court proceedings; taking judicial notice of relevant provisions of the Vermont Constitution and statutes; and to recording stipulations of counsel in open court with respect to certain relevant details of state court practice which did not appear altogether clear to the Court upon its initial examination of the state court record (e. g. the conduct of the voir dire examination of prospective jurors and the function of “assistant judges” in the trial of a criminal case). After the August 16 session was concluded, counsel were allowed time within which to serve and file briefs, proposed findings of fact and conclusions of law. A transcript of the hearing was prepared by the official court reporter and furnished to counsel. Oral arguments were heard September 12. The Court announced its decision in open court and entered its order and judgment December 22. in. FEDERAL CONSTITUTIONAL QUESTIONS RAISED Petitioner has raised in this Court a number of federal constitutional questions, the most serious of which, and with respect to which he has exhausted his state remedies, are the following: First. Whether the claimed failure to accord petitioner a fair trial by a panel of indifferent jurors constituted denial of due process in violation of the Fourteenth Amendment? Second. Whether the claimed denial of state appellate review of a conviction equivalent to first degree murder which resulted in the imposition of a sentence of life imprisonment, following failure to accord a fair trial, constituted denial of due process and equal protection in violation of the Fourteenth Amendment ? As stated above, this Court holds on the record before it that both questions must be answered in the affirmative. These conclusions are based on the following findings of fact and evaluations of the facts as found. IV. DENIAL OF A FAIR TRIAL BY A PANEL OF INDIFFERENT JURORS Petitioner was indicted July 23, 1959 for having burned a building in Brattleboro December 26, 1958 as a result of which Lyman Streeter lost his life. The State claimed the fire was started in a ground floor drug store which was managed and controlled by petitioner and that Streeter died of asphyxiation resulting from inhaling smoke in the third floor apartment which he occupied. A. State’s Public Disclosure of Petitioner's Alleged Criminal Record July 27, 1959 petitioner was arraigned on this indictment in the Wind-ham County Court. He pleaded not guilty. Thereupon, the Deputy Attorney General, representing the State, immediately moved that petitioner “be committed to Waterbury for observation and determination of his sanity”. The court overruled the motion. Petitioner then moved for bail. In support of this motion, he called Dr. Ruml who testified that petitioner had been his patient for a year or a year and a half; that six or seven months before the hearing petitioner had suffered a coronary attack from which he recovered; that about two months before the hearing petitioner suffered an acute attack of heart failure from which he also recovered; and that in the doctor’s opinion the chances of recurrence of such attacks would be less if petitioner were admitted to bail than if he were committed to jail pending trial. On cross examination, the Deputy Attorney General asked the doctor: “Q. Now, Doctor, would it make any difference in your opinion if the individual whom we are discussing, if you learned the individual whom we are discussing has been previously arrested and incarcerated on the following convictions?” Petitioner’s counsel objected on the ground that “it is highly prejudicial.” The court asked the Deputy Attorney General, “What do you say about the element of prejudice ?” After the Deputy Attorney General explained he was trying “to see if the doctor has all the facts regarding the background,” the court suggested, “Why don’t you simply ask whether without skirting the element of prejudice?” The Deputy Attorney General then asked the doctor: “Q. Would it make any difference to your opinion, Doctor, if it were the fact that on thirty-six different occasions this respondent has been charged with at least one crime ?” Petitioner’s counsel again objected; the court overruled the objection. The doctor replied, “No, I don’t think it would.” The Deputy Attorney General persistent in asking the doctor: “Q. It is six weeks between now and trial, about six weeks. Would it make any difference to your opinion if the respondent on at least eight different occasions spent periods of time longer than six weeks in jail?” The doctor replied in the negative. On re-cross examination of the doctor, the Deputy Attorney General prefaced his opening question with this observation : “Q. I respect your opinions and don’t appear to be nasty or sarcastic about them. In fact I am not nasty or sarcastic because I am sure they are genuine.” In argument to the court opposing the motion for bail, the Deputy Attorney General stated: “We could call the respondent to the stand in this proceeding but the only purpose would be to go into the part of his criminal record which I have here, just received special delivery from Boston. This is the part when he was in Boston between 1928 and 1944. And I don’t want to prejudice the respondent.” The court, after deliberation, denied the motion for bail with the observation, “ * * * this man is charged with a capital crime and in view of that we deny your motion for bail and you may have exceptions to that.” Evaluation In view of the prominence given by the press to petitioner’s alleged criminal record and in view of the number of jurors later empanelled to try petitioner who had read about the case in the newspapers (6 of the 12 regular jurors, as well as the 2 alternates ), the following is the Court’s evaluation of the justification for the Deputy Attorney General’s injection of petitioner’s alleged criminal record into the proceedings on the motion for bail: (i) The doctor had expressed a simple but logical opinion with respect to the relative chances of recurrence of petitioner’s coronary or heart failure attacks if he were admitted to bail as compared with being confined to jail. (ii) Petitioner’s heart ailments, to which the doctor referred, had occurred within a period of 6 or 7 months prior to the hearing. (iii) To test the validity of the doctor’s opinion and ostensibly to show that petitioner would be as much at home inside as outside jail, the Deputy Attorney General pressed his inquiry about “thirty-six different occasions” when petitioner “has been charged with at least one crime” and about “at least eight different occasions” when petitioner “spent periods of time longer than six weeks in jail”. (iv) What the Deputy Attorney General failed to disclose to the doctor but did disclose to the court at the very end of the hearing, was that petitioner’s alleged criminal record related to a period of time 15 to 31 years earlier — obviously having not the slightest relevance to the heart condition about which the doctor testified. (v) Aside from being irrelevant to the doctor’s testimony, such a criminal record (assuming a segregation of arrests from convictions) under Vermont law would not be admissible even if petitioner had taken the witness stand at the trial in his own behalf; for only convictions within 15 years of crimes involving moral turpitude can be used to impeach the credibility of a witness. (vi) Had the Deputy Attorney General seriously believed that an alleged record of petitioner’s arrests and convictions antedating the hearing by more than 15 years was relevant to the issue of likelihood of flight on a motion for bail involving an offense as to which the accused had no right to bail under the Vermont Constitution, surely such record could have been brought to the attention of the court in such a manner as to safeguard against the publicity and prejudice which flowed from the manner in which the .Deputy Attorney General forced the disclosure in this case — prejudice which the record here shows was instantly recognized by the court, by petitioner’s counsel and by the Deputy Attorney General. In short, the public disclosure of petitioner’s alleged criminal record, with its devastating effect — alone and in combination with other factors — upon petitioner’s chances for a fair trial by a panel of indifferent jurors, was directly attributable to the State. It was “a gross impropriety on the part of the prosecuting officials [to have] made available to the press all this damaging material respecting [petitioner] .” B. Petitioner’s Motion For Change of Venue July 28, 1959, the day following arraignment of petitioner and denial of his motion for bail, there appeared in The Brattleboro Daily Reformer (Brattleboro’s only daily newspaper) a front page, right hand column story (the space reserved for the lead local story) with a 24 point type head reading: “BROWN HELD FOR ARSON TRIAL IN SEP T.” Directly under this head was a subhead, referred to as a three line hanger, reading: “BAIL DENIED BY COURT: RECORD OF 36 ARRESTS CITED” The story itself, reciting the events of the previous day’s session in the Wind-ham County Court, while omitting to mention that petitioner pleaded not guilty, did mention the denial of the Deputy Attorney General’s motion to have petitioner committed to the Waterbury State Hospital, the setting of the trial date for September 15 and the denial of petitioner’s motion for bail. In connection with the latter, there was a summary of Dr. Ruml’s testimony, including the following questioning by the Deputy Attorney General (all on the front page, right hand column): “Deputy Atty. Gen. Debevoise asked Dr. Ruml is [sic] he would change his opinion if he knew that the respondent had been charged on 36 different occasions with at least one crime and had been sentenced at least eight times to serve longer than six weeks in jail in Massachusetts, according to his Boston criminal record between 1928 and 1944.” September 4, 1959, almost two months before the trial got under way, petitioner filed a motion for change of venue. Under the Vermont statute, either the State or the accused may move for change of venue where the offense is punishable by death or imprisonment in the state prison. The motion alleged, among other grounds, that “there have been several accounts published in the Brattleboro Daily Reformer which indicate along with many other prejudicial things, that the respondent is the possessor of a record of thirty-six arrests and it is respectfully submitted that such a representation said to have been made by the Deputy Attorney General and widely published throughout Wind-ham County by the said Brattleboro Daily Reformer, cannot help but prejudice the respondent.” At the hearing on petitioner’s motion for change of venue on October 1, 1959, the following facts, among others, were established: (1) That subsequent to the fire on December 26, 1958, and more particularly from June 11, 1959 to and including July 29, 1959, the matter of the fire and petitioner’s involvement received wide and extensive coverage in the Brat-tleboro Daily Reformer. (2) In addition to the publication of petitioner’s alleged criminal record, this newspaper on July 25, 1959 published on its front page such statements as the following concerning the fire and petitioner’s connection therewith: “His arrest followed a long investigation by the State Fire Marshal’s Office climaxed recently by exhumation of Streeter’s body for an autopsy.” “State Pathologist Richard S. Woodruff of Burlington reported his findings were that Streeter’s death was caused by smoke inhalation.” “Brown drove up to the police station in a blue Cadillac convertible . . . (3) A three-column, six inch square photograph of petitioner “on his way to jail” (according to the caption) prior to his arraignment was published on the front page of the Brattleboro Daily Reformer on July 25, 1959 — “largely based on the need of size in order to do justice to the subject.” (4) The Brattleboro Daily Reformer on April 1, 1959 had a net paid circulation of 7,108, all except approximately 600 being in Windham County. Of the 7,108 total circulation, 4,412 were distributed in the Brattleboro Town Zone where the paper had a 90.80% coverage of all families, and 2,158 were distributed in the Brattleboro Trading Zone (within a 25 mile radius of Brattle-boro) where the paper had a 75.69% coverage of all families. The paper had a circulation in 16 towns of Wind-ham county. (5) During the same period of time referred to in paragraph (1) supra, Brattleboro radio station WTSA broadcast petitioner’s involvement in the fire, his arrest, his arraignment and other news items in connection therewith. (6) Radio station WTSA, which has a coverage within approximately a 25 mile radius of Brattleboro, has a large listening audience; it serves a population (including areas outside of Vermont) of 87,800 people where there are 30,300 homes, of which 28,810 are radio equipped; and there are 20,410 radio equipped automobiles in the area. (7) All broadcasts by radio station WTSA concerning petitioner’s involvement in the fire, his arrest, his arraignment and other news items in connection therewith, were based on U.P. releases; such broadcasts were made two or more times a day; samples of such releases were marked as exhibits. (8) A lawyer who had practised for 25 years in Windham County, was then first vice president and later president of the Vermont Bar Association and who lived in Newfane (where petitioner later was tried for arson), testified without objection that, based on his discussions with “people throughout the county” concerning the news releases about the fire and the proceedings against petitioner : “My opinion is that the publicity attending the arrest of Mr. Brown has definitely created prejudice against him.” The State offered no evidence in opposition to petitioner’s motion for change of venue. At the conclusion of the hearing, the court inquired of counsel, “ * * * if this motion were granted what county do you have in mind it should be changed to?” Counsel for petitioner replied, “ * * * in any of the other thirteen counties of the State.” The Deputy Attorney General replied, “I think the counties are all the same in the State.” The court took the motion under advisement. October 8, 1959 the court made certain findings of fact. It recited the nature and extent of newspaper and radio coverage of the fire and of petitioner’s involvement therein; it observed that “the articles appear nothing more than abstract reporting, the type of ‘news story’ we have become familiar with, know of and are little influenced or impressed by”; it characterized the radio broadcasts as “nothing more than a dissemination of a normal news topic of more than average interest to the inhabitants of Windham County"; it referred to the testimony of the vice president of the Vermont Bar Association as having “expressed the opinion that [petitioner] could not receive a fair and impartial trial in the County” (which was not his testimony) and then added, “We have given this opinion such weight as we think it is entitled to receive”; and it expressed “every confidence that counsel will be able to protect [petitioner’s] rights” upon the voir dire examination of prospective jurors when “any knowledge of the case or prejudice will quickly appear and we of course must assume that all queried will answer truthfully.” Accordingly, petitioner’s motion for change of venue was denied, with an exception to petitioner. October 26, 1959, the opening day of the trial, counsel for petitioner renewed the motion for change of venue. The court again denied the motion, without comment, and granted petitioner an exception. Evaluation The disclosure of petitioner’s alleged criminal record, of the investigation by the State Fire Marshal’s Office climaxed by exhumation of Streeter’s body for an autopsy, of the findings of the State Pathologist as to the cause of Streeter’s death and of the complicity of petitioner in the alleged crime before he was tried, before he was arraigned and before he was indicted- — disclosures which emanated from the law enforcement and investigatory officials of the State of Vermont — were given “wide and extensive coverage in the Brattleboro Daily Reformer” and “were placed on the air at least twice in each instance and quite possibly more than twice” over “Radio station WTSA [which] has a large listening audience within its broadcasting area.” This publicity by newspaper and radio blanketed Windham County, reaching the saturation point in Brattleboro and its environs, from which a jury was to be drawn to try petitioner for a crime defined as first degree murder under Vermont law. The difficulty presented by such publicity in getting a fair trial for the accused has been expressed by the Court of Appeals for this Circuit as follows: “We again stress the obligation that rests upon all law enforcement agencies to avoid making any public statements concerning the progress of the investigation of a crime or the proof already obtained as to the complicity of any person who is either a defendant or likely to be prosecuted for the crime. Judge Edelstein’s opinion ([United States v. Dioguardi, D.C.] 20 F.R.D. 33) properly condemned publicity emanating from law enforcement officials in criminal prosecutions in general, and in this case in particular, because of the difficulty it creates in getting a fair trial for the accused.” C. Voir Dire Examination of Prospective Jurors After disposing of certain preliminary matters, the empanelling of the jury began in the Windham County Court at Newfane (12 miles from Brattleboro) Monday, October 26, 1959, at 2 P.M. It continued through that day, all of the following day and was completed the third day, October 28, at 10:25 A.M. A jury of twelve, plus two alternates, was empanelled. Method of Conducting Voir Dire Examination The method of conducting the voir dire examination was as follows. The box was filled with twelve prospective jurors drawn by lot. An improvised witness oath was administered. The remaining veniremen retired to the jury rooms downstairs to await being called to replace those excused. The twelve prospective jurors in the box were examined as a group and individually — always in the presence of the others in the box. Those excused for cause were dismissed immediately. Dismissal of those challenged peremptorily was deferred until the end of that session of court, i. e. the noon recess or the recess at the end of the day. Those excused, whether for cause or peremptorily, were replaced immediately. Only the replacements for those excused for cause took seats in the jury box immediately. The replacements for those challenged peremptorily were seated temporarily in front of the jury box until the next recess. The replacements were examined in the presence of each other and those not excused; except that the replacements for those challenged peremptorily were examined in the presence of all in the box, including those who had been challenged peremptorily but were unaware of it. In this manner the voir dire examination was conducted at all times in the presence of twelve or more prospective jurors, including those in the box as it was constituted from time to time who ultimately were among those empanelled as the jury of twelve. For example, three of the twelve jurors ultimately empanel-led to try petitioner — jurors Larabee, Isham and Jenness — were among the original twelve veniremen called to the box ; they were present throughout the entire voir dire examination and heard each question asked and each answer given. The prospective jurors who were in the box when the court recessed from time to time during the voir dire examination were kept together by the court officers and were locked up in a Brattle-boro hotel each night. Petitioner and the State each had six peremptory challenges, that being the number allotted in all criminal cases whether capital or. non-capital. Of the 47 prospective jurors examined during the voir dire, 41 were drawn from the regular jury list and 6 were talesmen summoned in response to the court’s direction to the sheriff. Three of the talesmen thus summoned were empanelled as members of the jury of 12 and 2 of the talesmen were empan-elled as alternates. Of the 33 prospective jurors who were excused, 6 were challenged peremptorily by petitioner, 3 were excused upon challenge for cause by petitioner, 21 were excused upon challenge for cause by the State and 3 were excused for cause by the court. No peremptory challenges were exercised by the State. Disclosures During Voir Dire Examination Of the 21 prospective jurors who were excused upon challenge for cause by the State, 8 were opposed to the death penalty in any case and 13 were opposed to the death penalty in a case of non-intentional killing. Of the 26 prospective jurors who were examined beyond the question of their scruples concerning capital punishment, 11 personally knew Streeter or members of his family; 8 had had their hair cut by Streeter or had been in his barber shop; 4 were members of fraternal orders to which Streeter belonged; none knew petitioner or members of his family; 5 had traded at petitioner’s drug store; 13 had read or heard publicity about the fire and petitioner’s connection therewith, in newspapers or on radio or TV; 8 were subscribers to or regular readers of the Brattleboro Daily Reformer; 13 were aware of anti-Jewish sentiment but denied it would influence them as jurors. Jury Empanelled To Try Petitioner As a result of the voir dire examination, there emerged, to try petitioner for first degree murder, a jury of 12, plus 2 alternates, with the following badges of doubtful indifference: (a) Five (3 regulars and 2 alternates) had known Streeter, 2 of the regulars for 10 years or more. (b) Four (3 regulars and 1 alternate) had had their hair cut by Streeter or had been in his barber shop, including the husband of one of the regulars who was a customer of Streeter (c) Two regulars were members of fraternal orders to which Streeter belonged; one regular and the husband of another were members of a veterans organization to which Streeter belonged. (d) VvTiile none knew petitioner or any members of his family, 3 regulars had traded at his drug store; a fourth had traded there for 11 years before petitioner acquired it, but not since. (e) Eight (6 regulars and 2 alternates) had read, heard or seen publicity about the case in newspapers, on radio or TV. (f) Eight regulars were subscribers to or regular readers of the Brattleboro Daily Reformer. (g) Nine (8 regulars and 1 alternate) were aware of anti-Jewish sentiment. Other Occurrences During Voir Dire Examination The following also occurred during the voir dire examination of prospective jurors: (1) Having in mind the public disclosure by the Deputy Attorney General of petitioner’s alleged criminal record and the publicity by newspaper and radio which blanketed Windham County concerning the case and petitioner’s connection with it, this line of inquiry by the Deputy Attorney General to the prospective jurors takes on special significance : “MR. DEBEYOISE: * * * Now lastly but perhaps most important to both the State and the respondent in this case, there has been some newspaper stories, news stories about the fire that happened in this case and other stories about the matter. Have any of you seen such stories in the papers? [Two prospective jurors indicate in the affirmative.] “I believe when the indictment was returned in this case there was also some stories about Mr. Brown in connection with the fire. Has anyone seen any of those stories ? [A prospective juror indicates she may have.] “In addition to news stories in the newspapers there have also been news broadcasts, radio and television. Have any of you seen or heard such stories on the radio or television? [A prospective juror indicates in the affirmative.]” Questions in like vein were asked again and again by the Deputy Attorney General. (2) More than half of the voir dire examination consisted of questions by the Deputy Attorney General on the subject of punishment. Granted that it was a proper subject of inquiry in a capital case, by the same token appropriate restraint should have been exercised to safeguard against the inevitable prejudice which resulted from the following: (a) On at least seven occasions, the Deputy Attorney General, without stat ing that it first would be necessary to find the accused guilty, asked prospective jurors whether they would hesitate to vote for the death penalty, thus implying that the sole function of the jury about to be empanelled was to determine the degree of punishment. For example, he asked the prospective juror Mrs. Allen: “The crime here charged is that Frank Brown set fire to a building and as a result of the fire Lyman Streeter lost his life. That crime, the legislature has said, shall be punishable at the choice of the jury, either by death or life imprisonment. In principal are you opposed to the death penalty?” (b) Although each prospective juror was asked whether he or she would hesitate to vote to impose the death penalty, not a single one was asked whether he or she would hesitate to vote for life imprisonment if petitioner were found guilty. (c) At no time during the voir dire examination were the prospective jurors told that intent to commit arson was a necessary element of the crime charged. On the contrary, the Deputy Attorney General emphasized the absence of any necessity of showing intent to kill : “MR. DEBEVOISE: In this case the statute provides that where somebody sets fire to a building and another person dies as a result, there is no necessity to charge that there was any premeditation or malice to kill that individual. The crime is setting fire to the building * * And another instance : “MR. DEBEVOISE: * * * It wasn’t necessarily a premeditated killing.” (3) At the very outset, before the em-panelling of the jury began, one of the members of the Grand Jury that indicted petitioner for arson causing death was sworn as a Deputy Sheriff to act as a court officer, including the handling of the petit jury, at the trial of petitioner. Disclosure that this Deputy Sheriff had served on the Grand Jury came after fiat denials to the contrary by the Deputy Attorney General and the clerk. Only after persistent pressing of the inquiry by petitioner’s counsel, did the court finally order, “We won’t permit him to have anything to do with the jury.” (4) One of the prospective jurors, who had known Streeter for four or five years and had had his hair cut by him, recalled that “Mrs. Streeter (widow of the victim of the fire) was a deputy here when I served on a jury before. * * * ” (5) Mrs. Jenness, one of the jury of 12 empanelled to try petitioner, was friendly with a member of the Grand Jury that returned the indictment; the Grand Juror told Mrs. Jenness “a week or so later” that “she had been on the jury that caused the indictment.” (6) The court refused to excuse for cause, upon challenge by petitioner, a prospective juror who had been prosecuted by petitioner’s counsel when the latter was State’s Attorney; despite the existence of clear ground for this venireman to be excused for cause, the Deputy Attorney General vehemently objected ; petitioner thereupon was compelled to exercise a peremptory challenge (7) Another prospective juror, drawn the first day of the voir dire examination, who had “known the whole Streeter family”, made it abundantly clear that “it would prejudice me;” despite the Deputy Attorney General’s willingness to excuse her for cause, the court persuaded her to change her position, whereupon thfe Deputy Attorney General withdrew his motion; the court then denied petitioner’s motion to excuse her for cause ; and not until the following day (after she had remained in the jury box for a full day and had been locked up overnight with the others then in the jury box), was she eventually excused by the court with the observation, “I think we can get somebody untainted with any prejudice.” (8) Still another prospective juror said she “was resentful” over “business dealings with [petitioner] which were unpleasant;” although the State in fairness asked that this juror be excused for cause, the court refused to excuse her at first; thereafter, in response to a question whether her discussions of the case with others “concerned the formation of an opinion as to the guilt or innocence of Mr. Brown,” she said, “* * * Everybody discussed it. There were pros and cons.” Not until the following day (after she likewise had remained in the jury box for a full day and had been locked up overnight with the others then in the jury box), did the court excuse her for cause, with the observation that “ * * * if the respondent were convicted here. It would be a matter for him to feel probably someone on the jury he had had a disagreement with and that person might have influenced the others.” (9) The wife of a member of the Brattleboro Fire Department expressed the view that “Of course every time the fire alarm blows it might mean both police and fire, it means danger” ; when asked if “it would make it any more difficult for you to reach an impartial verdict as between the State in an arson case and the respondent?” , she answered, “It might” ; when asked if “It might require a lot more evidence or proof to satisfy you one way or the other in this particular type of a case ?”, she answered, “I think so”; nevertheless she was kept in the jury box until the following day (after being locked up overnight with the others then in the jury box), before being excused by the court upon challenge by petitioner for cause and then only over vigorous protest by the State. (10) Another prospective juror, before being excused for cause, expressed in no uncertain terms the depth of his prejudice “for one side or the other” ; that he had formed an opinion “as to the guilt or innocence of [petitioner]” ; and such opinion was “On the basis of something [he had] read or heard.” (11) “ * * * a sympathy with Mrs. Streeter which would prejudge this case” to the point that he “could not determine the guilt or innocence of [petitioner] strictly upon the facts” was expressed by another prospective juror before he was excused by the court. (12) Mr. Threlkeld, one of the alternates empanelled, was acquainted with Streeter on the basis of “that relationship as I was in his chair in the barber shop;” had read in the Brattleboro Reformer and the Rutland Herald that Brown “was charged with the fire” ; and had “been back to the barber shop since the fire” when he made the comment to the other barbers “that I noticed about the happening in the paper and was very sorry, that sort of thing.” (13) Mr. Timmes, one of the regular jurors empanelled and who served as foreman, when asked, since he was a subscriber to the Brattleboro Reformer, whether he had read anything “about the fire or Mr. Brown’s connection with it”, replied, “I did read, it was in the paper about trying to collect fire insurance” ; and he had been in Brown’s drug store “within a month before the fire”. (14) Mr. Merritt, another of the regular jurors empanelled, had done appraisal work for the State of Vermont in highway cases. After the voir dire examination was concluded and a jury of 12 regulars, plus 2 alternates, had been empanelled, the clerk read the indictment and stated to the jury: “The respondent has been arraigned in open Court and has entered a plea of not guilty and placed himself upon the country for trial, which country, ladies and gentlemen of the jury, you are.” Evaluation The voir dire examination of prospective jurors must be evaluated in the light of the State’s public disclosure of petitioner’s alleged criminal record and the disclosures made on petitioner’s motion for change of venue to determine whether petitioner was brought to trial before a panel of impartial, indifferent jurors, the denial of which would violate the minimal standards of due process. The disclosures during the voir dire examination — referring particularly to those enumerated in the preceding section of this opinion — are significant in that they occurred in the presence of all prospective jurors in the box or elsewhere in the courtroom, including at all times at least three of those who ultimately were empanelled to try petitioner for first degree murder; the prospective jurors who were in the box when the court recessed from time to time during the voir dire examination were kept together by the court officers and were locked up each night; the conduct of the voir dire examination extended over portions of three days of the trial; during long periods of this time, frequently overnight, certain prospective jurors, who were clearly disqualified because of bias or prejudice and ultimately were excused for that reason, nevertheless remained in close association with the other veniremen in the box, including some who sat in judgment of petitioner; and, for aught that appears in the record before this Court, the prospective jurors were at liberty to discuss among themselves what, occurred during the voir dire examination. ij The chief significance of the voir dire' examination, in the opinion of this Court, is that it reflected the climate of the courtroom and the pulse of the community in which petitioner was brought to trial. The community being a relatively small one, its pulse was more sensitive than might have been the case in a larger community to such influences as disclosure of petitioner’s alleged criminal record; sympathy for the victim of the fire — a life-long resident of the community who was a popular barber; prejudice against the accused — a foreign born man of the Jewish faith who had lived in the community for only two years and, although not well known in the community, had made enemies as the proprietor of a cut rate drug store; and the saturation coverage of the community with stories about the fire, petitioner’s complicity in the alleged crime and the State’s investigation of the crime. The federal constitutional question here presented is whether on this record petitioner was tried for first degree murder by a panel of impartial and indifferent jurors; if not, of course he did not receive a fair trial — indeed, in the eyes of the law, he received no trial at all — and was denied due process in violation of the Fourteenth Amendment. Determination of impartiality is not easy. It is not susceptible of solution by an exact science. There are no absolutes upon which a court may rely. Chief Justice Hughes, speaking for the United States Supreme Court, said: “Impartiality is not a technical conception. It is a state of mind. For the ascertainment of this mental attitude of appropriate indifference, the Constitution lays down no particular tests and procedure is not chained to any ancient and artificial formula.” The one clear mandate to a federal district court in a habeas corpus proceeding in determining whether a state prisoner was tried by an impartial jury in the constitutional sense is that “ * * the District Judge must exercise his own judgment on this blend of facts and their legal values. Thus, so-called mixed questions or the application of constitutional principles to the facts as found leave the duty of adjudication with the federal judge.” Mr. Justice Holmes put it this way: “We shall not say more concerning the corrective process afforded to the petitioners than that it does not seem to us sufficient to allow a Judge of the United States to escape the duty of examining the facts for himself when if true as alleged they make the trial absolutely void.” In determining, when a prisoner’s life or liberty is at stake, whether there has been a denial of due process of law because of trial by jurors lacking impartiality, the United States Supreme Court recently prescribed what this Court understands to be its precise function in the instant proceeding: “It was, therefore, the duty of the [federal court] to independently evaluate the voir dire testimony of the impaneled jurors.” “And the object of habeas corpus is to search records to prevent illegal imprisonments.” In complying with the mandate of the United States Supreme Court to search the records of the state court proceedings and independently to evaluate the voir dire examination for the purpose of determining whether petitioner was tried by a jury of sufficient impartiality to comply with constitutional due process standards, the Court has endeavored scrupulously to refrain from reviewing the record from the standpoint of appellate error, that being exclusively a state court function under our federated system. Moreover, the Court recognizes the broad discretion appropriately granted to state trial courts in ruling on such matters as motions for change of venue and challenges for cause in the empanelling of a jury. It is not the province of a federal court in a habeas corpus proceeding involving the legality of detention of a state prisoner to determine whether error was committed by the state courts. It is, however, clearly the duty of the federal court in such a proceeding to determine whether due process was denied. The distinction is-vital. This Court has done its best to discharge its duty in this proceeding strictly within the confines of its habeas corpus jurisdiction. Vermont has written into its organic law articulate safeguards not only for trial by jury but for trial by an impartial jury: “ * * * The parties have a right to trial by jury, which ought to be held sacred.” “ * * * in all prosecutions for criminal offenses, a person hath a right to * * * a speedy public trial by an impartial jury of the country.” “ * * * great care ought to be taken to prevent corruption or partiality in the choice and return, or appointment of Juries.” And the Vermont Supreme Court requires the standard of “utmost impartiality” in the conduct of a trial: “ * * * it is the duty of the court to conduct a trial with the utmost impartiality and fairness * *. This obligation extends throughout the trial.” Agreement by a state with federal constitutional due process standards, however, does not foreclose inquiry by a federal court in a habeas corpus proceeding into whether federal standards have been complied with in a particular state court proceeding; nor is a federal court foreclosed in such a case from setting aside a conviction for denial of due process. In the instant case, “after a long, hard look at the whole picture presented” and based on “an appraisal of the totality of facts”, this Court holds that petitioner was tried by a jury clearly lacking impartiality and his “conviction so secured obviously constitutes a denial of due process of law in its most rudimentary conception.” On the record before this Court, it might well hold that due process was denied petitioner “at nearly every step of the proceedings.” Such holding, however, is not necessary to the decision in this case and the Court does not decide it on that basis. The Court does hold that the combination of facts disclosed by this record establish beyond any doubt that the jury empanelled to try petitioner for a crime defined as first degree murder was not an impartial, indifferent jury. Accordingly, petitioner was denied a fair trial in violation of the due process clause of the Fourteenth Amendment. , The State’s public disclosure of petitioner’s alleged criminal record under the circumstances outlined above struck the initial blow at petitioner’s right to a fair trial. The influence of that poisonous -injection permeated all subsequent proceedings — to such an extent that “Here the build-up of prejudice is clear and convincing. An examination of the then current community pattern of thought as indicated by the popular news media is singularly revealing.” The unfortunate and disturbing effect of such publicity has been well stated by Judge Charles E. Clark (with whose views in this respect Chief Judge Lumbard and Judge Friendly agreed): “From its inception this case was given unusual and disturbing publicity in newspapers, journals, and magazines; and this unfortunate feature has persisted up to this date, with even the prosecutors indulging in highly colored accounts while the case has been pending on appeal. ****** “This is vastly unfortunate; not only does it go beyond the judicial record necessary for its support, but it suggests that the administration of the criminal law is in such dire straits that crash methods have become a necessity. But it seems we should have known better, and a prosecution framed on such a doubtful basis should never have been initiated or allowed to proceed so far. For in America we still respect the dignity of the individual, and even an unsavory character is not to be imprisoned except on definite proof of specific crime. And nothing in present criminal law administration suggests or justifies sharp relaxation of traditional standards.” In holding that petitioner was tried by a jury lacking the impartiality required for due process, the Court is mindful that the jurors empanelled disclaimed any prejudice or partiality; otherwise of course they would not have been accepted. The constitutional test of impartiality, however, does not turn on the subjective declarations of the individual jurors. “No doubt each juror was sincere when he said that he would be fair and impartial to petitioner, but the psychological impact requiring such a declaration before one’s fellows is often its father.” Recalling the impact of the State’s public disclosure of petitioner’s alleged criminal record, “The influence that lurks in an opinion once formed is so persistent that it unconsciously fights detachment from the mental processes of the average man.” The record before the Court in this proceeding discloses facts which tend to show that if petitioner had been tried by an impartial jury, he might well have been acquitted. Six months after petitioner was convicted in' the Windham County Court of arson causing death, a jury in a civil case in the United States District Court for the District of Vermont at Burlington (140 miles north of Brattleboro) found, by special verdict, that the fire (for the setting of which petitioner was convicted of arson causing death and sentenced to life imprisonment) was not “of incendiary origin.” The civil case was one brought by the Harry Softer Drug Co. Inc. (owner of the drug store where the fire occurred) against several insurance companies to recover on the fire insurance policies covering the store at the time of the fire. While differences between the criminal and civil cases with respect to such matters as the parties, the issues and the evidence may be open to debate, the one critical fact common to both cases is that the fire was the same. And yet one jury drawn from Windham County found it was of incendiary origin; another jury drawn from the Burlington area reached the opposite conclusion. The relevance of this to the issue of whether petitioner was tried by an impartial jury is: it robs petitioner’s claim, particularly that there should have been a change of venue, of any purely academic character. The United States Supreme Court has succinctly summarized the historic, fundamental principle here involved — the guarantee to the criminally accused of a fair trial by a panel of impartial jurors: “England, from whom the Western World has largely taken its concepts of individual liberty and of the dignity and worth of every man, has bequeathed to us safeguards for their preservation, the most priceless of which is that of trial by jury. This right has become as much American as it was once the most English. Although this Court has said that the Fourteenth Amendment does not demand the use of jury trials in a State’s criminal procedure, Fay v. New York, 332 U.S. 261 [67 S.Ct. 1613, 91 L.Ed. 2043]; Palko v. Connecticut, 302 U.S. 319 [58 S.Ct. 149, 82 L.Ed. 288], every State has constitutionally provided trial by jury. See Columbia University Legislative Drafting Research Fund, Index Digest of State Constitutions, 578-579 (1959). In essence, the right to jury trial guarantees to the criminally accused a fair trial by a panel of impartial, ‘indifferent’ jurors. The failure to accord an accused a fair hearing violates even the minimal standards of due process. In re Oliver, 333 U.S. 257 [68 S.Ct. 499, 92 L.Ed. 682]; Turney v. Ohio, 273 U.S. 510 [47 S.Ct. 437, 71 L.Ed. 749]. ‘A fair trial in a fair tribunal is a basic requirement of due process.’ In re Murchison, 349 U.S. 133, 136 [75 S.Ct. 623, 625, 99 L.Ed. 942]. In the ultimate analysis, only the jury can strip a man of his liberty or his life. In the language of Lord Coke, a juror must be as ‘indifferent as he stands unsworne.’ Co. Litt. 155b. His verdict must be based upon the evidence developed at the trial. Cf. Thompson v. City of Louisville, 362 U.S. 199 [80 S.Ct. 624, 4 L.Ed.2d 654]. This is true, regardless of the heinousness of the crime charged, the apparent guilt of the offender or the station in life which he occupies. It was so written into our law as early as 1807 by Chief Justice Marshall in 1 Burr’s Trial 416 (1807). ‘The theory of the law is that a juror who has formed an opinion cannot be impartial.’ Reynolds v. United States, 98 U.S. 145, 155 [25 L.Ed. 244].” In the same case, Mr. Justice Frankfurter, with his characteristic acumen, states: “More than one student of society has expressed the view that not the least significant test of the quality of a civilization is its treatment of those charged with crime, particularly with offenses which arouse the passions of a community. One of the rightful boasts of Western civilization is that the State has the burden of establishing guilt solely on the basis of evidence produced in court and under circumstances assuring an accused all the safeguards of a fair procedure. These rudimentary conditions for determining guilt are inevitably wanting if the jury which is to sit in judgment on a fellow human being comes to its task with its mind ineradicably poisoned against him. How can fallible men and women reach a disinterested verdict based exclusively on what they heard in court when, before they entered the jury box, their minds were saturated by press and radio for months preceding by matter designed to establish the guilt of the accused. A conviction so secured obviously constitutes a denial of due process of law in its most rudimentary conception.” In short, this Court holds that “Where one’s life [or liberty for life] is at stake —and accounting for the frailties of human nature — we can only say that in the light of the circumstances here the finding of impartiality does not meet constitutional standards.” Petitioner Frank Brown never had a chance. The fountain of justice was poisoned before it began to flow. V. DENIAL OF STATE APPELLATE EEVIEW Petitioner’s appeal to the Vermont Supreme Court, which granted him leave to appeal in forma pauperis from his conviction of arson causing death and from his sentence of life imprisonment, was dismissed for lack of jurisdiction in a 3 to 2 decision, Judge Holden in strong dissent. The crux of this decision was that petitioner had failed to comply with the double filing requirement with respect to notices of appeal first enacted by the Vermont legislature in 1959. Under these statutory provisions, petitioner was required, within thirty days from the date he was notified of the rendition of his judgment of conviction, to file a notice of appeal with “(1) the clerk of the court appealed to and (2) the clerk * * * of the tribunal appealed from * * Petitioner’s notice of appeal coneededly was filed in time with the clerk of the court appealed to (the Vermont Supreme Court); but, according to the three judge majority of the Vermont Supreme Court, it was filed one •day late with the clerk of the court appealed from (the Windham County Court.) The two judge minority of the Vermont Supreme Court found that “The essential fact that an appeal had been undertaken was brought home to ■each court concerned and to the prevailing party on the trial below,- — all within the time prescribed.” The following is the chronology of events by which petitioner sought and was denied state appellate review of his conviction of a crime defined as first degree murder: (1) November 5, 1959 the jury returned its verdict in the Windham County Court finding petitioner guilty of arson causing death and determining that his punishment should be life imprisonment Petitioner was sentenced accordingly November 24,1959. A judgment order dated November 24, 1959 was filed December 3, 1959, on which date notification of the rendition of judgment was given by the county clerk to petitioner’s attorneys of record. (2) December 2, 1959 petitioner’s counsel wrote to Chief Justice Hulburd of the Vermont Supreme Court enclosing a petition “submitted to you directly in accordance with our telephone conversation of Tuesday afternoon.” This petition requested that petitioner be allowed to appeal in forma pauperis, that a transcript of the proceedings in the Windham County Court be furnished to petitioner at state expense and that counsel be assigned to represent petitioner on his appeal at state expense. In his letter of December 2, 1959 to Chief Justice Hulburd, petitioner’s counsel further stated, “In the event that the Court should decide to grant the petition, I will be glad to prepare any order felt necessary. Our time for appeal expires on Thursday, December 24, 1959. I hope that we will be notified of the decision of the- Court in time to take appropriate action.” (3) December 15, 1959 the clerk of the Vermont Supreme Court wrote to petitioner’s counsel advising that he had been “directed by the Court to inform you that your petition to be assigned as counsel for the respondent in the above-entitled case in his appeal to the Supreme Court has been granted”; the clerk further informed petitioner’s counsel that “As to the payment of the transcript in the pursuance of your appeal, Chief Justice Hulburd wishes to inform you that he will seek to make some arrangements with the Attorney General as to that.” (4) December 28, 1959 petitioner’s counsel wrote to the clez-k of the Wind-ham County Court (copies to the Attorney General, the court reporter, and Hon. Henry F. Black, petitioner’s co-counsel) stating, “Since the time for filing a notice of appeal under 12 V.S.A., Section 2383 is fast approaching in the above captioned matter, I want to make absolutely certain that all parties in interest understand the situation regarding the transcript.” After referring to and summarizing the letter of December 15, 1959 from the clerk of the Vermont Supreme Court, petitioner’s counsel went on to state, “In other words, I do wish to formally order the transcript in behalf of the appellant but can not furnish the check for the one-half estimate of the total cost as required by the court. I assume that Mr. Justice Hulburd has taken the matter up with the Attorney General and that some order or formal request will be made by that office for the transcript. If I am in erroi', I would appreciate being informed by the appropriate party.” (5) With reference to the cost of the transcript, petitioner’s counsel earlier that month, December 5, 1959, had written to the court reporter and concluded this letter by stating, “I will be glad to send you a check for whatever this will amount to, and will personally guarantee your charges entirely separate from the order which we are expecting from the Supreme Court.” (6) December 31, 1959 petitioner’s counsel mailed the original and three copies of petitionez-’s notice of appeal to the clerk of the Vermont Supreme Court in Montpelier under cover of a letter reading, “Enclosed please find original and three copies of the respondent’s Notice of Appeal in the above captioned matter brought under 12 V.S.A., Section 2382. The extra copies are for the Wind-ham County Clerk, Henry F. Black, Esq. and the Attorney General. I further enclose our check for ?5.00 to cover filing fee. If I am in error as to the amount, please do not hesitate to correct me.” (7) December 31, 1959 was a Thursday; the following day, New Year’s Day, was a Friday. Accordingly, the letter of December 31, 1959, from petitioner’s counsel to the clez'k of the Vermont Supreme Court enclosing the original and three copies of petitioner’s notice of appeal, did not come to the attention of the clerk of the Vermont Supreme Court until the following Monday, January 4, I960. (8) January 4, 1960 the clerk of the Vermont Supreme Court wrote to petitioner’s counsel, “These papers on appeal should properly go to the Clez’k of the Supz*eme Court within and for the County of Windham, rather than Clez'k of the General Tez'm, who will make the necessary distribution, and I have also endorsed the entry fee over to him as he is responsible for that. George Daley [Clerk of the Windham County Couz't] will prepare the docket entries in the case and certify it to us at a later date.” (9) January 5, 1960 petitioner’s counsel was in the Vermont Supreme Court at Montpelier, at which time the Clerk of the Supreme Court told him that on the previous day he had returned the notice of appeal and filing fee to the office of petitioner’s counsel in Brattleboro. Petitioner’s counsel thereupon immediately telephoned his office in Brattleboro and caused “all the papers in the case” to be handed to George Daley, who, by virtue of his office as county clerk for Wind-ham County, is clerk of the Supreme Court for Windham County. (10) The same day, January 5, 1960, petitioner’s counsel wrote to Mr. Daley, “I have just talked to Mr. Peduzzi [Clerk of the Vermont Supreme Court] who interprets the new statute as requiring the filing of the appeal with the Clerk of the Supreme Court for Windham County, so that he has sent back our notice of appeal and check for retransmittal to you. I have talked to Mr. Debevoise and I do not believe any question is going to be raised as to late filing. I will be back in town in the morning if you wish to talk with me about it.” (11) January 5, 1960 the Clerk of the Windham County Court issued its mittimus directing that petitioner be committed to the Vermont State Prison at Windsor for the rest of his natural life. (12) January 6, 1960 the Sheriff executed the mittimus by committing petitioner to the state prison at Windsor and reading the mittimus to him. (13) January 6, 1960 the Clerk of the Windham County Court wrote to the Clerk of the Vermont Supreme Court in Montpelier enclosing a certified copy of the docket entries; noting that “the Notice of Appeal was filed with me after the Mittimus had been delivered to the Sheriff, and, after the 30 days for taking an appeal had expired”; stating, “If we were still operating under the old Court Rules the Court could waive the Rule and permit the respondent to file late, but, appellate procedure now being statutory I do not know what authority the Court or a Judge would have in the matter. Mr. Burgess has paid the entry fee in the case so I think it a matter for the Supreme Court to decide rather than the Clerk”; and concluding by requesting the Clerk of the Vermont Supreme Court to notify him as to when the files in the case should be mailed to the Supreme Court. (14) January 8, 1960 the Clerk of the Windham County Court wrote to the Clerk of the Vermont Supreme Court enclosing the files “as per your request” and noting that “The Sheriff handed me the mittimus, which he had served at the State Prison, about 10 minutes after I had forwarded the copy of the docket entries to you.” (15) January 15, 1960 petitioner’s counsel wrote to the Clerk of the Wind-ham County Court (copy to the Attorney General), stating, “Please refer to my letter of 28 December 1959 in which I formally ordered the transcript in the above captioned matter. As a result of my conversat