Full opinion text
WEINMAN, Chief Judge. This matter is before the Court upon a petition for a writ of habeas corpus filed against the Warden of The Ohio State Penitentiary in Columbus, Ohio, where petitioner is incarcerated pursuant to a judgment of the Court of Common Pleas of Cuyahoga County, Ohio upon a conviction of murder in the second degree. When the Court took this matter under advisement, a pre-trial conference was held to discuss the procedures to be followed in presenting the issues in the case. The purpose of that conference, and similar ones which followed, was to expedite the case in its preparation and presentation for final determination. As a result of the first conference, it was agreed that all preliminary proceedings would be by pre-trial orders; those orders to be by agreement of counsel and/or by order of the Court. One of the pre-trial orders agreed upon and filed by counsel for the parties sets forth the history of the case. That history, with the references to exhibits attached to the pre-trial order omitted, is as follows: “Petitioner, Samuel H. Sheppard, was in July, 1954, a resident of Bay Village, Ohio, a suburb on the west side of Cleveland. He was a doctor of osteopathic medicine, specializing in Surgery, and a member of the staff of the Bay View Hospital. He was thirty years of age and was married to Marilyn Reese Sheppard, also thirty. They had been married for nine years and had one son, aged seven. Petitioner and his family lived in a house on the shore of Lake Erie, which house was owned by Marilyn. Petitioner was associated in the practice of medicine with his father and two older brothers, all doctors. He was in comfortable financial circumstances. “On the night of July 3,1954, petitioner and his wife entertained friends, Don and Nancy Ahearn, in their home. The Ahearns left at approximately 12:30 a. m., July 4, 1954; Marilyn saw them to the door, for petitioner was or appeared to be asleep on a couch in the living room. The evening had been a congenial one, and the Ahearns observed no indications of hostility between petitioner and his wife (who was pregnant) at any time during the evening. In fact, there were overt manifestations of affection between them. “Shortly before 6:00 A.M. a telephone call was received from petitioner by J. Spencer Houk, mayor of Bay Village and a friend of petitioner. Houk lived two houses distant from the home of petitioner. Houk heard petitioner say: ‘My God, Spence, get over here quick, I think they have killed Marilyn.’ Houk dressed and with his wife, Esther, drove within a short time the few hundred feet to petitioner’s home. Upon arrival the Houks found petitioner on the first floor of the house. His face showed some injury, and he complained of pain in his neck. Esther Houk went up to the bedroom, at the suggestion of petitioner, to check on the condition of Marilyn Sheppard. She found Marilyn lying in a pool of blood on the bed. She was dead. The room was covered with splattered blood. It was determined that she had suffered some thirty-five blows about the head by some blunt instrument, causing death. There was some conflict as to how long she had been dead when discovered by the Houks. “The story given by petitioner to police and at the trial, was substantially as follows: As he was sleeping on the couch, he was awakened by a noise coming from the second floor. He thought he heard his name called. He went up the stairs, which was dimly lit by a light in the hall. He recognized only a white ‘form’ standing next to the bed where his wife slept. He grappled with the form, and was struck on the back of the neck which rendered him unconscious. Before losing consciousness petitioner heard loud moans, as if from someone injured. When petitioner recovered consciousness, he examined his wife, found or thought that she was dead, determined that his son (in an adjacent room) had not been harmed, and then, hearing noise of some sort on the first floor, ran down. He saw a form running out the door of the house nearest to Lake Erie, and pursued it to the shore. There he struggled again, and again lost consciousness. When he came to, he went back to the house, re-examined his wife, and called Mayor Houk. Petitioner was unable to establish (1) the number of people in the bedroom at the time of the first encounter or the time of said encounter; (2) the duration of his unconsciousness on either occasion, or (3) the sex or identity of any of the single or several assailants he encountered. He stated that his perceptions had been vague because he was asleep at the outset of the chain of events, and unconscious twice as it progressed. “In the course of interrogations by police and the County Coroner, petitioner was asked if he had had sexual relations with one Susan Hayes, an ex-employee of the hospital, in March, 1954, in Los Angeles. Petitioner denied this, but later admitted it when confronted with her statement of the affair. The state contended that Miss Hayes was the motive for a premeditated murder, but the jury returned a verdict of murder in the second degree. “The murder of Marilyn Sheppard captivated the attention of news media in an unprecedented manner. Editorials on the first page of a leading Cleveland newspaper, and news media generally, set up a hue and cry for a solution to the crime. An inquest was demanded and held, and petitioner’s arrest was suggested most strongly by at least one leading newspaper. On July 30, 1954, petitioner was arrested; he was admitted to bail, and indicted a few days later, on August 17, 1954. He has been in custody ever since. “The trial began on October 18, 1954, and on December 17 of the same year the cause was submitted to a jury in the Court of Common Pleas of Cuyahoga County. On December 21st the verdict of guilty of murder in the second degree was returned, and petitioner was sentenced to life imprisonment in the state penitentiary at Columbus, Ohio, where he is now detained in the custody of respondent. “The details of the trial, which fill over seven thousand pages in the bill of exceptions, are not recited here; it is the understanding of counsel for both sides that it was not the purpose of this history to describe the voluminous evidence. “On January 3, 1955, the trial court overruled a motion for new trial which had been based on numerous assignments of error occurring during trial and deliberation •X* -X- * “On May 9, 1955, the trial court denied a supplemental motion for new trial on ground of newly discovered evidence and based upon the affidavit of Paul Leland Eirk, a criminologist, who claimed to have demonstrated that blood tests made in the murder room proved the existence of blood which did not come from the defendant or the deceased. This evidence was not obtained until after the verdict had been returned. “On July 20, 1955, the Court of Appeals of Cuyahoga County affirmed the conviction of petitioner; and on July 25, 1955 the same Court affirmed the denial of the second motion for new trial * * “On May 31, 1956, the Ohio Supreme Court affirmed the action of the Court of Appeals as to the case in chief, but did not discuss or pass upon the alleged newly discovered evidence. Two Judges dissented, expressing the view that Sheppard should be accorded a new trial * *. “On November 14, 1956, the Supreme Court of the United States denied a petition for certiorari; application for rehearing was denied on December 19, 1956 * * *. “On September 5, 1960, Chief Justice Weygandt denied an application for a writ of habeas corpus in the Ohio Supreme Court; the petition therefor was dismissed on May 5, 1961. “On April 11th, 1963, petitioner filed a petition for a writ of habeas corpus in this Court, which is the action giving rise to this order. “Petitioner, Samuel IT. Sheppard, has at all times maintained that he was not guilty of the murder of his wife, and that he knew no more about said death than he told at the trial.” Subsequent to the filing of the above pre-trial order, counsel for the parties filed a pre-trial order which constituted a stipulation of the issues which were before the Court. Those agreed upon issues are as follows: “1. Was the arraignment of petitioner on a capital charge in the absence of his counsel, whose presence petitioner requested which request was refused, a violation of his constitutional rights? “2. Was the ejectment of petitioner’s counsel from the Cuyahoga County jail on August 1, 1954, thus-, depriving petitioner of counsel’s advice, a violation of his constitutional rights ? “3. Did the refusal of the trial judge to grant motions for a continuance and/or a change of venue, in the face of massive prejudicial publicity, violate petitioner’s constitutional rights? “4. Was the publication of a list of veniremen thirty days in advance of trial, thus subjecting said veniremen to opinions of others during the thirty-day period, a violation of petitioner’s constitutional rights? “5. Did the trial judge, by failing to sequester the jurors during the trial in the face of continuing prejudicial publicity, violate petitioner’s constitutional rights? “6. Did the trial judge fail to adequately investigate the prejudicial effect of news stories during trial by questioning the jurors at the request of defense counsel? “7. Was the action of the trial judge in setting aside the major portion of the courtroom for representatives of news media violative of pe-tioner’s constitutional rights? “8. Did the conduct of the Cleveland Press in reporting and editorializing the Sheppard Case pressure public officials to act against petitioner’s interests, beyond the bounds of fairness, to an extent that violated petitioner’s constitutional rights? “9. Did the ruling of the trial judge, denying petitioner his last peremptory challenge, violate petitioner’s constitutional rights? “10. Did the action of the bailiffs in permitting the jurors, during deliberations and without authority from the court, to hold telephone conversations with persons outside the jury room, violate petitioner’s constitutional rights? “11. Did the action of the police in seizing and holding petitioner’s house, and excluding petitioner and his representatives from it for the duration of the trial, with the concurrence of the trial court, violate petitioner’s constitutional rights? “12. Was the refusal of the trial judge, as affirmed by the Court of Appeals of Cuyahoga County, to grant petitioner a new trial upon after-discovered evidence tending to show a third person in the murder room in corroboration of petitioner’s defense, a violation of petitioner’s constitutional rights? “13. Did prosecuting authorities suppress relevant, substantial and material evidence in such a manner as to violate petitioner’s constitutional rights? “14. Did prosecuting authorities use improper and unfair tactics prior to and during trial in such a manner as to violate petitioner’s constitutional rights? “15. Did the trial judge, in permitting police officers to testify that petitioner had refused a lie-detector test, violate petitioner’s constitutional rights? “16. Did the trial judge, in permitting a witness named Houk to testify that he had taken a lie detector test, violate petitioner’s constitutional rights ? “17. Did the Chief Justice of the Supreme Court of Ohio, in appointing his own replacement in violation of the Ohio Constitution to sit on petitioner’s appeal, violate petitioner’s constitutional rights ? “18. Did the action of the trial judge, in determining the unbiased condition of the jurors on their own assertions of fairness and impartiality, violate petitioner’s constitutional rights? “19. Did the Supreme Court of Ohio, in determining that there had been sufficient evidence to sustain the conviction, violate petitioner’s constitutional rights? “20. Did the Supreme Court of Ohio, in failing to pass upon all of the errors assigned by petitioner in his appeal, as required by Ohio Statutes, violate petitioner’s constitutional rights ? “21. Were the courts of Ohio generally, in the handling of petitioner’s trial and his several appeals, so prejudiced against him as to deprive him of his constitutional 'rights ? “22. Did the trial judge, in forcing the jury to deliberate for more than four days until it had reached a verdict, violate petitioner’s constitutional rights ?” At a pre-trial conference after the filing of the above stipulation of issues, counsel for petitioner noted one further issue which the Court shall consider to be issue numbered 23: “23. Did the trial judge, by failing to disqualify himself after making certain statements regarding petitioner’s guilt, violate petitioner’s constitutional rights ?” At a later date, it was stipulated by counsel that issues numbered 2, 13, 14 and 22 were consolidated with the remaining issues and need not be considered separately. As a preliminary point, it should be noted that counsel for respondent has raised a question regarding this Court’s jurisdiction to hear and determine issues numbered 1 and 15 because they have not been presented to the Ohio Courts for consideration. Counsel for respondent argues that petitioner can still, pursuant to Section 2953.05, Ohio Revised Code, request the Ohio Courts to consider these issues. This argument ignores the fact that petitioner did appeal his conviction through the Ohio Courts and if he were now to request that they consider issues numbered 1 and 15 the probable result would be a refusal because he failed to raise those issues on appeal and therefore waive his right to have them determined. It is not necessary for this Court to trace the development of the jurisdiction of a federal district court to review, by a federal habeas corpus proceeding, a state court conviction; that has recently been done by the United States Supreme Court in Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963). A reading of the majority opinion in that case leaves no doubt but that this Court has jurisdiction to consider each allegation as to violation of petitioner’s federal constitutional rights. Note, especially as to issues numbered 1 and 15, the following language in Fay v. Noia, supra, at page 428, 83 S.Ct. at page 843: « * * -x- defendant by committing a procedural default may be debarred from challenging his conviction in the state courts even on federal constitutional grounds. But a forfeiture of remedies does not legitimize the unconstitutional conduct by which his conviction was procured. * * * ” The fundamental question before the Court, as illustrated by the stated issues, is whether petitioner was afforded his right to a fair trial as required by the due process clause of the Fourteenth Amendment to the United States Constitution which provides: “nor shall any State deprive any person of life, liberty, or property, without due process of law.” It is at this point that the Court wishes to state exactly what is to be decided. The Court will consider whether or not petitioner received a fair trial. The guilt or innocence of petitioner is not before the Court and is, in fact, wholly immaterial to the question to be decided. The concepts of due process and fair trial are not susceptible to exacting definitions. This case must necessarily rest upon its particular facts, but of course, there are a number of cases which have considered these concepts and the Court will refer to them as its guideposts. And using these guideposts, the Court will consider the following: 1. Was the newspaper publicity before trial and/or during trial such that it violated petitioner’s constitutional rights? (issues numbered 3, 4, 5, 6, 7 and 8); 2. Did the trial judge, by failing to disqualify himself after making certain statements regarding petitioner’s guilt, violate petitioner’s constitutional rights? (issue numbered 23); 3. Did the trial judge, in permitting police officers to testify that petitioner had refused a lie detector test (issue numbered 15) and in permitting a witness named Houk to testify that he had taken a lie detector test (issue numbered 16), violate petitioner’s constitutional rights? and 4. Did the action of the bailiffs in permitting the jurors, during deliberations and without authority from the court, to hold telephone conversations with persons outside the jury room, violate petitioner’s constitutional rights? (issue numbered 10). Was the publicity before trial and/or during trial such that it violated petitioner’s constitutional rights? (issues numbered 3, 4, 5, 6, 7 and 8). With regard to this issue, counsel have submitted into evidence, by agreement, the following documents, materials and stipulated facts: 1. A copy of the petition for a writ of certiorari to the United States Supreme Court, Sheppard v. Ohio, 1956, 352 U.S. 910, 77 S.Ct. 118, 1 L.Ed.2d 119 and the Appendix to that petition. There was, of course, no stipulation as to the accuracy, factual or legal, of the allegations and arguments contained in the petition. However, it was agreed that the exhibits reproduced in the Appendix accurately portrayed the documents and materials which they purported to represent. 2. Pages 3723 to 3725, pages 4266 to 4268 and pages 5427 to 5430 of the Bill of Exceptions. 3. Five volumes of green covered scrap books of news clippings from the Cleveland Press, the Cleveland News (which has since merged with the Cleveland Press) and the Cleveland Plain Dealer. These scrap books contain substantially all of the clippings relating to the Sheppard ease which were published by these three newspapers during the period from July 1954 through December 1954. 4. The fact that there was published in all three Cleveland newspapers previously referred to, and particularly on September 23, 1954, 25 days before the .selection of a jury began, a list of 75 veniremen who had been drawn as prospective jurors in the Sheppard Case, giving the full name and street address of each juror listed. 5. The fact that the 13 petit jurors who heard the evidence and decided petitioner’s case were allowed to go to their homes each night during the trial, and were not sequestered or kept apart until after the court’s charge, at which time the jury was committed to the custody of two bailiffs and were thereafter kept under constant guard and supervision during their deliberations and until their verdict had been returned in open court. 6. The fact that the trial judge, before the commencement of the trial, made certain arrangements with respect to the seating whereby a major portion of the courtroom where the case was to be tried was assigned to the news media. Prior to commencement of trial, counsel for petitioner made a number of motions for change of venue or for continuance. The trial judge held these motions in abeyance until, after the jury was selected; after which he overruled each of the motions. Newspaper publicity before trial. The first question to be considered is whether the trial judge erred in overruling the aforesaid motions and proceeding with trial in view of the newspaper publicity before trial. It would be impractical to quote each newspaper article which bears upon this question; therefore, the Court will set forth only those articles and headlines which it believes to be most relevant: “STATE PREPARES CHARGE AGAINST BAY MURDERER” “NEW SEARCH IS ORDERED FOR CLEWS” “ ‘The state is already preparing its case against the killer of Mrs. Marilyn Sheppard.’ “This statement was made today by Assistant County Prosecutor John J. Mahon as he directed a surprise new search of the Bay Village home in which the 30-year-old clubwoman was beaten to death Sunday morning. “Mahon sharply criticized the refusal of relatives to permit the immediate questioning of the victim’s husband, Dr. Samuel Sheppard, also 30. “While the prosecutor spoke, Dr. Sheppard, his injured neck supported by a brace, was being taken out of Bay View Hospital in a wheelchair to attend his wife’s funeral * Cleveland Press, July 7, 1954, p. 1. “TESTIFY NOW IN DEATH, BAY DOCTOR IS ORDERED” “A forthwith subpena commanding Dr. Sam Sheppard, husband of the clain [sic] Bay Village woman, to appear at the county prosecutor’s office for questioning was issued today. “It was hastily issued by Coroner Samuel R. Gerber following a session at the doctor’s bedside in Bay View Hospital. “Deputy Sheriff Carl Rossbach entered the injured osteopath’s room in the hospital which is operated by his family, in an effort to question him about the events leading to his wife’s death. “William J. Corrigan, Cleveland criminal defense attorney retained by Dr. Sheppard’s family, went in, too. “A few minutes later, Rossbach stalked out and reported to Coroner Gerber. “Dr. Gerber angrily wrote out the subpena and handed it to Rossbach. 'Serve it forthwith,’ he commanded. “Rossbach went back into the room to attempt to resume the interrogation. “The dramatic development came immediately after Assistant County Prosecutor John J. Mahon took control of the murder investigation and issued an abrupt ultimatum: “Dr. Sheppard must come downtown to the prosecutor’s office ‘volun-v tarily to make a statement concerning the crime.’ “If the osteopath refuses, Mahon said, a coroner’s inquest will be convened at the Morgue immediately, and Dr. Sheppard will be subpenaed and compelled to testify. “ x- * x- These developments came as Dr. Stephen Sheppard brother-in-law of the clain [sic] clubwoman, told reporters that his brother was eager and anxious to aid the investigation and was not physically able to withstand questioning. “He added that William J. Corri-gan, prominent Cleveland criminal defense lawyer retained by the family, was ‘in complete charge from now on.’ «* x- * “ ‘In my twenty-three years of criminal prosecution, I have never seen such flagrant stalling as in this case by the family of Dr. Samuel Sheppard,’ Mahon said. - « x- * * » Cleveland Press, July 8, 1954, p. 1. “DOCTOR RE-ENACTS STORY OF MURDER; REJECTS LIE TEST” ■ “Doctor Samuel H. Sheppard declined to submit to a lie detector test for questioning about the slaying of his attractive wife, it was disclosed today * * Cleveland News, July 9, 1954, p. 1. “DOCTOR RE-ENACTS TRAGEDY”. “HE BARS LIE TEST FOR PRESENT” “Flanked by two attorneys Dr. Samuel H. Sheppard today re-enacted his version of the murder of his pretty wife, Marilyn — and repeated it, detail by detail, word for word, over and over again. “Earlier he had refused for the second time to take a lie detector test in ‘my present emotional state.’ «* X X- ” Cleveland Press, July 9, 1954, p. 1. “TOO MUCH TIME LOST” “Within memory no murder case in this part of the country has prompted so much discussion or speculation as that of Mrs. Sheppard. “A good part of it centers quite naturally around the circumstances of the killing itself — in a quiet suburban setting — and its attendant mysterious elements. “A good part likewise centers around the protecting ring set up by members of the Sheppard family, which in some respects has tended to add to rather than subtract from the speculation that has expanded the case to such vast proportions. “Also the apparent fumbling of investigative authorities on both the municipal and county levels has added to the intensity of interest — and has raised many additional questions. “Any time a factor of special attention, or privilege, or special protection is introduced into any casé it is bound to produce increased and critical attention. “In the Sheppard murder case many of these factors are present against the original background of mystery, and it is therefore not unnatural that it occupies such intense and critical notice around the whole community. “But the principal problem is the fact, that, for whatever reasons, the investigative authorities were slow in getting started, fumbling when they did, awkward in breaking through the protective barriers of the family, and far less aggressive than they should have been in following out clews, tracks, and evidence. “There is nothing that helps block a solution to a murder more than a cold trail, and it is this, as much as anything, that causes such wide critical appraisal of the Sheppard case. “Now that the investigative authorities appear finally to have catalyzed themselves into action and broken through some of the protective barriers, they ought to make up in redoubled effort the time they have already lost.” Cleveland Press, July 9, 1954, p. 14. “QUIZ DOCTOR FOR 7 HOURS” “ * * * “Deputy Sheriff Carl Rossbach renewed his demand that the 30-year old osteopath submit to a lie detector test. “ ‘He doesn’t have to if he doesn’t want to,’ Rossbach said, ‘but I intend to keep on asking until he agrees.’ « * * *» Cleveland Press, July 10, 1954, p. 1. “DOCTOR CALLS SECOND LIE TEST REFUSAL FINAL” “ * * * “Dr. Samuel H. Sheppard again late yesterday refused to take a lie detector test in the investigation of the brutal murder of his pretty wife, Marilyn. “Assistant County Prosecutor Thomas J. Parrino told reporters at the end of a nine-hour questioning of Dr. Sheppard: T felt that he was now ruling it out completely.’ « * * * >> Cleveland Plain Dealer, July 11, 1954, p. 1 “PUSHES FOR SHEPPARD LIE TEST” “DOCTOR IS WELL ENOUGH NOW, GERBER SAYS” “Still on the trial of the elusive motive for the murder of Mrs. Marilyn Sheppard 10 days ago, investigators today concentrated on a possible ‘other woman’ angle. “AT THE SAME TIME, CORONER SAMUEL R. GERBER AGAIN URGED THE SLAIN WOMAN’S HUSBAND, DR. SAMUEL H. SHEPPARD, BAY VILLAGE OSTEOPATH, TO SUBMIT TO A LIE DETECTOR TEST. “ ‘If Dr. Sheppard has recovered sufficiently to go back to work at the Bay View Hospital he is well enough to take a lie detector test,’ Dr. Gerber said. « * * *» Cleveland News, July 13, 1954, p. 1. “PAINESVILLE WOMAN’S STORY OPENS NEW SHEPPARD QUIZ” “SAYS DOCTOR’S WIFE WANTED TO GET DIVORCE” “A Painesville woman late today sent police off at a new tangent in their search for the mysterious slayer of Mrs. Marilyn Sheppard. “THE NEW WITNESS IN THE MURDER CASE WAS MRS. JESSIE DILL, 23, MOTHER OF TWO CHILDREN. SHE WAS QUESTIONED IN THE PAINESVILLE POLICE STATION FOR TWO HOURS BY BAY VILLAGE POLICE. “Mrs. Dill told reporters she had met a woman she is positive was Marilyn Sheppard on the beach at Fairport Harbor Monday, June 14. “ ‘She seemed to be unhappy and asked me where my husband was,’ Mrs. Dill said. T told her I was divorced and she said “that’s what I ought to do.” She said she had attempted to divorce her husband in California four years ago but his relatives had talked her out of it.’ “Mrs. Dill gave police and reporters the name of a man mentioned by the woman she identified as Mrs. Sheppard. The man had not previously entered the murder investigation. “Mrs. Dill said the women [sic] she identified as Mrs. Sheppard told her she was to have a baby, and she was afraid if she divorced her husband her 7-year-old son, Chip, would be taken away from her. «* * *» Cleveland News, July 15, 1954, p. 1. “THE FINGER OF SUSPICION” “The worst thing about the tragic mishandling of the Sheppard murder investigation is the resulting suspicion. “Why was it mishandled, people ask. “You can’t blame them. “In this community generally, murder investigations are conducted with intelligence, efficiency and impartiality. “The record is good. “The detectives on the Homicide Squad in the Cleveland Police Department, for instance, know their job. They have a national reputation. “Same with the coroner. “Thanks to his close co-operation with Western Reserve University, and thanks to the voters who authorized the best equipment and facilities, the county has top standing in the relatively new field of scientific crime investigation. “And the sheriff’s office and the prosecutor’s office both have good reputations for integrity and determination in solving crimes. “What happened, then ? “Two things stood in the way of the usual complete and unfettered investigation that the citizens of Greater Cleveland have come to expect as the natural course of events. “ONE was the hostility of Bay Village officials to any ‘outsiders’ in this case. “They rebuffed the usual assistance immediately offered by Cleveland police experts in solving murders. “SECOND was the unusual protection set up around the husband of the victim, the sole witness, according to latex* x*eports, who could start the investigation on the right track. “The protection was twofold. It came from his family and it came fx*om his lawyer. It was unusual; to say the least. “And then, worst of all, no law enforcement official, Bay or county, took any leadership in the face of these unusual circumstances. “No one. “The result of all this fumbling and delay, of course, was to start gossip, to launch rumors, to spread suspicion thick as glue. “It was bad fox* everybody. Everybody, that is, except the murderer. “What can be done, now ? “It doesn’t make much difference who runs the show. The important thing is that justice is done. “First logical step would be a meeting of all the law enforcement agencies involved. “Let them select a leader, a single responsible boss for this pax'ticular case. “Let him serve notice that protection, special favors and fancy ultimatums by lawyers are out from here on. “Maybe it’s too late to start again. “BUT EVERY FURTHER MOMENT OF FUMBLING IS HELPING A MURDERER ESCAPE.” Cleveland Press, July 16, 1954, p. 12. “SHEPPARD SET FOR NEW QUIZ” “GETTING AWAY WITH MURDER” “AN EDITORIAL” “What’s the matter with the law enforcement authorities of Cuya-hoga County? “Have they lost their sense of reason ? — or at least inexcusably set aside the realization of what they are hired to do, and for whom they work? “If ever a murder ease was studded with fumbling, halting, stupid, uncooperative bungling-politeness to people whose place in this situation completely justified vigorous searching, prompt and effective police work — the Sheppard case has them all. “Was the murder of Mrs. Shep-pax-d a polite matter? “Did the killer make a dutiful bow to the authorities and then proceed brutally to destroy the young child-beax'ing wife? “Why all of this sham, hypocrisy, politeness, criss-crossing of pomp and protocol in this case? “Who is trying to deceive whom? “From the very beginning of this case — from the first hour that the murder became known to the authorities by a telephone call from the husband to the town mayor— from that moment on and including this, the case has been one of the worst in local crime history. “Of coux'se the trail is cold. Of course the clews have been virtually ex*ased by the killer. Of course the whole thing is botched up so badly that head or tail cannot be made of it. “In the background of this case \^are friendships, relationships, hired lawyers, a husband who ought to have been subjected instantly to the same third-degree to which any other person under similar circumstances is subjected, and a whole string of special and bewildering extra-privileged courtesies that should never be extended by authorities investigating a murder — the most serious, and sickening crime of all. “The spectacle of a whole community watching a batch of law enforcement officials fumbling around, stumbling over one another, bowing and scraping in the presence of people they ought to be dealing with just as firmly as any other persons in any other crime — that spectacle is not only becoming a stench but a serious threat to the dignity of law enforcement itself. “Coroner Sam Gerber was never more right than when yesterday he said that the killer must be laughing secretly at the whole spectacle — the spectacle of the community of a million and a half people brought to indignant frustration by Mrs. Sheppard’s killer in that white house out in Bay Village. “Why shouldn’t he chuckle ? Why shouldn’t he cover up, shut up, conceal himself behind the circle of protecting people? “What’s the matter with us in Cuyahoga County? Who are we afraid of? Why do we have to kowtow to a set of circumstances and people where a murder has been committed ? “It’s time that somebody smashed into this situation and tore aside this restraining curtain of sham, politeness and hypocrisy and went at the business of solving a murder — • and quit this nonsense of artificial politeness that has not been extended to any other murder case in generations.” Cleveland Press, July 20, 1954, p. 1. “ISN’T THIS MURDER WORTH AN INQUEST?” And in a later edition, the same editorial was headlined: “WHY NO INQUEST? DO IT NOW, DR. GERBER” “AN EDITORIAL” “Why hasn’t County Coroner Sam Gerber called an inquest into the Sheppard murder case? What restrains him? (t “Is the Sheppard murder case any different from the countless other murder mysteries where the coroner has turned to this traditional method of investigation? “An inquest empowers use of the subpena. “It puts witnesses under oath. “It makes possible the examination of every possible witness, suspect, relative, records and papers available anywhere. “It puts the investigation itself into the record. “And — what’s most important of all — it sometimes solves crimes. “What good reason is there now for Dr. Gerber to delay any longer the use of the inquest? “The murder of Marilyn Sheppard is a baffling crime. “Thus far it appears to have stumped everybody. “It may never be solved. “But, this community can never have a clear conscience until every possible method is applied to its solution. “What, Coroner Gerber, is the answer to the question— “Why don’t you call an inquest into this murder?” Cleveland Press, July 21, 1954, p. 1. “TIME TO BRING BAY SLAYING INTO OPEN” “Too many days have passed without positive results in the several investigations of the Bay Village hack-slaying. Undoubtedly the suburb’s police officials feel they have conducted the best possible inquiry; county officials and Coroner Samuel R. Gerber’s office also undoubtedly feel that they have acted effectively. But there’s been no sign at all of breaking the stalemate over the brutal slaying of Mrs. Marilyn Sheppard. “We are forced to take note that Dr. Samuel Sheppard, husband of the victim has rejected suggestions of both lie detector and truth serum tests, and has submitted to questioning only when his family and his lawyer have agreed he might. “Before charges and counter-charges, fights among officials and jealousies smother all efficiency, wouldn’t it be wise to bring the whole matter out into the open, with subpenaing and examination of witnesses under oath, for example, at the county’s crime laboratory at Western Reserve University? It’s time all groups get together as one to find, or attempt to find the solution to this baffling crime.” Cleveland News, July 21, 1954, p. 1. “GET THAT KILLER” “It is high time that strenuous action be taken in the Sheppard murder case. “This newspaper fails to see how bickering among those who have been investigating the 18-day-old mystery can aid in the final aim — to find the murderer, whoever he may be. “County Coroner Samuel R. Gerber, though he has failed to produce the person who brutally murdered Mrs. Marilyn Sheppard in the bedroom of her Bay Village home, has worked long and hard, and deserves the appreciation of the whole community. “But it is obvious that Dr. Gerber needs help. The Cleveland police department is equipped to give it. Its crime laboratories and investigators are among the best in the business. It has no Bay Village friendships which might prove embarrassing. “True, the case is cold as ice. There has, in our opinion, been a noticeable lack of cooperation on the part of the dead woman’s husband, Dr. Samuel M. [sic] Sheppard, who has refused to take a lie detector test, and who yesterday rejected proposals that he submit to a ‘truth serum’ test. “He had already been subjected to interrogation, he said; he could not face further interrogation because he is still emotionally upset, and he was reluctant to put himself in a position where he might involuntarily incriminate innocent people. “The last noble sentiment would, we feel, have been far more noble if Dr. Sheppard had said: “ ‘I will be happy to do anything within my power to bring my wife’s murderer to justice. If a lie detector test would help, by all means bring it on. If a “truth serum” test would convince you that I have told police all I know in an honest effort to apprehend the murderer, I am at your service, gentlemen.’ “Just as it is easy to ‘second-guess’ a ball game, it is easy to second-guess a murder investigation. “It is clear, now, that, because of the social prominence of the Sheppard family in the community, and friendships between the principals in the case and the law enforcement bodies of Bay Village, kid gloves were used throughout all preliminary examinations. “Possibly the ‘bushy-haired man’ would have been apprehended long before this if the crime had been investigated with the vigor it deserved; perhaps some other answer might have been found to solve one of the most brutal murders in the history of Greater Cleveland. “It is gratifying that the Cleveland police department has accepted the Bay Village Council’s invitation to step into the mystery, even at this late date, after once dropping out of the case for some unexplained reason. Competent detectives may yet be able to muster enough evidence to produce the killer. “Finding the killer should be of the greatest satisfaction to Greater Cleveland, to Bay Village, and to Dr. Samuel Sheppard.” Cleveland Plain Dealer, July 22, 1954, p. 1. “SLAIN WIFE REVEALED DATES OF DOCTOR, TALK OF DIVORCE” “ * * * “The audience of more than 200, mostly Bay Village housewives, applauded when William Corrigan, Dr. Sam’s attorney, was forcibly ejected from the hearing after insisting vigorously on his right to insert remarks in the record. “Coroner Samuel R. Gerber, who ordered Corrigan’s expulsion, was hugged, kissed and cheered by the spectators after he recessed the three-day hearing to be reconvened later at the County Morgue * “ * * -x-» Cleveland Press, July 26, 1954, p. 1. “CORRIGAN EJECTED AMID CHEERS” “MOVE FOLLOWS RUNNING CLASH WITH GERBER” “INQUEST IS RECESSED; OUSTED LAWYER VOWS TO SUE OVER INCIDENT” “Spectators cheered wildly yesterday as William J. Corrigan, criminal lawyer representing Dr. Samuel H. Sheppard, was half dragged from the room in the closing moments of the Marilyn Sheppard murder inquest in Bay Village. “As the tumult subsided in the Normandy School auditorium-gymnasium, Coroner Samuel R. Gerber indefinitely recessed the inquiry into the brutal hack-murder of Dr. Sheppard’s 31-year-old wife before dawn July 4. “ -X- * * ” Cleveland Plain Dealer, July 27, 1954, p. 1. “WHY DON’T POLICE QUIZ TOP SUSPECT?” “AN EDITORIAL” “You can bet your last dollar the Sheppard murder would be cleaned up long ago if it had involved ‘average people.’ “They’d have hauled in all the suspects to Police Headquarters. “They’d have grilled them in the accepted, straight-out way of doing police business. “They wouldn’t have waited so> much as one hour to bring the chief suspect in. “Much less days. “Much less weeks. “Why all this fancy, high-level bowing and scraping, and super-cautious monkey business? “Sure it happened in suburban Bay Village rather than in an ‘ordinary’ neighborhood, “So what? “What difference should that make ? “When they called the Cleveland police in everybody thought: “ ‘This is it. Now they’ll get some place.’ “Now we’d have vigorous, experienced, expert, big-time action. “They’d get it solved in a hurry. “They’d have Sam Sheppard brought in, grill him at Police Headquarters, like the chief suspect in any murder case. “But they didn’t. “And they haven’t. “In fairness, ■ they’ve made some progress. “But they haven’t called in Sam Sheppard. “Now proved under oath to be a liar, still free to go about his business, shielded by his family, protected by a smart lawyer who has made monkeys of the police and authorities, carrying a gun part of the time, left free to do whatever he pleases as he pleases, Sam Sheppard still hasn’t been taken to Headquarters. “What’s wrong in this whole mess that is making this community a national laughing stock? “Who’s holding back — and why? “What’s the basic difference between murder in an ‘ordinary’ neighborhood and one in a Lake Rd. house in suburban Bay Village? “Who is afraid of whom ? “It’s just about time that somebody began producing the answers— “And producing Sam Sheppard at Police Headquarters.” Cleveland Press, July 28, 1954, p. 1. Cleveland Press, July 29, 1954, p. 1. “I Will Do Everything in My Power to Help Solve This Terrible Murder.” —Dr. Sam Sheppard Cleveland Plain Dealer, August 5, 1954. “WHY ISN’T SAM SHEPPARD IN JAIL?” And in a later edition the headlines were: “QUIT STALLING — BRING HIM IN” “AN EDITORIAL” “Maybe somebody in this town can remember a parallel for it. The Press can’t. “And not even the oldest police veterans can, either. “Everybody’s agreed that Sam Sheppard is the most unusual murder suspect ever seen around these parts. “Except for some superficial questioning during Coroner Sam Gerber’s inquest he has been scot-free of any official grilling into the circumstances of his wife’s murder. “From the morning of July 4, when he reported his wife’s killing, to this moment, 26 days later, Sam Sheppard has not set foot in a police station. “He has been surrounded by an iron curtain of protection that makes Malenkov’s Russian concealment amateurish. “His family, his Bay Village friends — which include its officials ■ — his lawyers, his hospital staff, have combined to make law enforcement in this county look silly. “The longer they can stall bringing Sam Sheppard to the police station the surer it is he’ll never get there. “The longer they can string this whole affair out the surer it is that the public’s attention sooner or later will be diverted to something else, and then the heat will be off, the public interest gone, and the goose will hang high. “This man is a suspect in his wife’s murder. Nobody yet has found a solitary trace of the presence of anybody else in his Lake Rd. house the night or morning his wife was brutally beaten to death in her bedroom. “And yet no murder suspect in the history of this county has been treated so tenderly, with such infinite solicitude for his emotions, with such fear of upsetting the young man. “Gentlemen of Bay Village, Cuya-hoga County, and Cleveland, charged jointly with law enforcement— “THIS IS MURDER. THIS IS NO PARLOR GAME. THIS IS NO TIME TO PERMIT ANYBODY-NO MATTER WHO HE IS — TO OUTWIT, STALL, FAKE, OR IMPROVISE DEVICES TO KEEP AWAY FROM THE POLICE OR FROM THE QUESTIONING ANYBODY IN HIS RIGHT MIND KNOWS A MURDER SUSPECT SHOULD BE SUBJECTED TO— AT A POLICE STATION.” “The officials throw up their hands in horror at the thought of bringing Sam Sheppard to a police station for grilling. Why? Why is he any different than anybody else in any other murder case ? “Why should the police officials be afraid of Bill Corrigan? Or anybody else, for that matter, when they are at their sworn business of solving a murder. “Certainly Corrigan will act to protect Sam Sheppard’s rights. He should. “BUT THE PEOPLE OF CUYO-HOGA COUNTY EXPECT YOU, THE LAW ENFORCEMENT OFFICIALS, TO PROTECT THE PEOPLE’S RIGHTS. “A murder has been committed. You know who the chief suspect is. “You have the obligation to question him — question him thoroughly and searchingly — from beginning to end, and not at his hospital, not at his home, not in some secluded spot out in the country. “But at Police Headquarters— just as you do every-other person suspected in a murder case. “What the people of Cuyahoga County cannot understand, and The Press cannot understand, is why you are showing Sam Sheppard so much more consideration as a murder suspect than any other person who has ever before been suspected in a murder case. “Why?” Cleveland Press, July 30, 1954, p. 1. “BUT WHO WILL SPEAK FOR MARILYN?” “It’s perfect, you think at first, as you look over the setting for the Big Trial. “The courtroom is just the size to give a feeling of coziness and to put the actors close enough to each other so that in moments of stress the antagonists can stand jaw to jaw and in moments of relaxation can exchange soft words of camaraderie. “Modern enough for this ‘See-Hear’ age, with the microphone, the loud speakers on the walls, and the blazing lights for the TV cameras before and after court sessions. “Yet somberly dignified enough to carry the authentic decor of the traditional court of justice. “Almost inadequate, old-fashioned hanging light fixtures. Dark fur-nitture. [sic]. A high bench for his honor, the judge. So high that if he slouches a bit just his head is visible. “A bit of plaster has fallen from the ceiling over the clerk’s desk. The unrepaired spot gives a touch of the dignity of age. “And on the floor at the end of the trial table — a cuspidor. “Ah, you think, only a master arranger would have remembered that. “ ‘The cuspidor. Put it here.’ “Perfect, you think at first, a masterpiece of setting the stage for the dramatic action of the Big Trial. “Then it hits you. No, there’s something missing. “What? “Can what seems to be missing be found in the cast of characters. “Ah, the cast. Superb, you think at first. “And complete. Not a character missing. “And so real,, you think. Just like you would expect to see. Why if you didn’t know these were people and this was a real setting you would think you were watching a drama on television or a mystery play at a theater. “His honor, the judge. A quaint Welsh accent. Quick, mobile features that can pass so rapidly through sternness, annoyance, patience and charming friendliness. “And the chief counsel for the defense. Granite faced, shaggy haired. Now disdainful, now quizzical, now disbelieving, now coaxing, now threatening, now bored. “These provide the perfect background for the most perfect character of all- — the accused. Was there ever more perfect typing? Was there ever a more perfect face for the enigma that is the Big Trial ? “Study that face as long as you want. Never will you get from it a hint of what might be the answer when the curtain rings down on this setting and on these characters. Is he the one? Did he do it? “Plus of course, the other characters. The accused’s two brothers. Prosperous, poised. His two sisters-in-law. Smart, chic, well-groomed. His elderly father. Courtly, reserved. A perfect type for the patriarch of a staunch clan. “Yes, you think. They wouldn’t be more true-to-life if this Big Trial were a television drama. “Then it hits you again. No there’s something — and someone missing. “What is it? Who is it? Who’s still off stage? Waiting perhaps for a cue to come on. “In the hallway outside the courtroom you stop to talk to Detective Chief James McArthur. He’s an old timer at Big Trials. So you ask him. Isn’t there someone, something missing? “ ‘Sure,’ says the detective chief. ‘There always is. I’ll tell you. “ ‘It’s the other side, the representatives of what in this case will be officially known as the corpus de-licti, in other words, the body of the crime, in still other words — Marilyn Reese Sheppard. “ ‘There is no grieving mother — ■ she died when Marilyn was very young. “ ‘There’s no revenge-seeking brother nor sorrowing sister. Marilyn was an only child. “ ‘Her father is not here. Why he isn’t, is his own personal business.’ “What then, you wonder, will be the other side. “It will be there, Inspector Mc-Arthur reassures. He opens a thick brief case he carries daily to the court-room. “ ‘Here,’ he says, ‘are the statements and resumes of testimony that will be given by state’s witnesses. Here are the theories and details of the evidence found by dozens of detectives in weeks of work. “ ‘Here is the complete story of Marilyn Reese Sheppard. How she lived, how, we think, she died. Her story will come into this courtroom through our witnesses. Here is how it starts: Marilyn Sheppard, nee Reese, age 30, height 5 feet, 7 inches, weight 125 pounds, brown hair, hazel eyes. On the morning of July 4 she was murdered in her bedroom. * -X- -X- > “Then you realize how what and who is missing from the perfect setting will be supplied. “How in the Big Case justice will be done. “Justice to Sam Sheppard. “And to Marilyn Sheppard.” Cleveland Press, October 23, 1954, p. 1-, [This article is included with “Newspaper publicity before trial” although it is recognized that the trial had commenced before it was published; however, the jury had not yet been sworn and the court believes this article to be relevant to the question being considered]. ADDITIONAL NEWSPAPER HEADLINES : Published before trial, most of which appeared on front pages. “QUIT WEARING GUN, DOCTOR TOLD” “DR. SHEPPARD BACKS AWAY FROM ‘CRIME DOCTOR’ TALK” “SAYS MRS. SHEPPARD HAD' PLANNED DIVORCE” “SHEPPARD DENIES TRYST' WITH WOMAN TECHNICIAN” “SHEPPARD DENIES AFFAIR,. SOBS ON WITNESS STAND” “KERR URGES ARREST OF DOCTOR; POLICE FIND HOLES IN STORY” “SLAIN WIFE TALKED OF' ‘OTHER GIRL,’ DOCTOR’SMOTHER SAYS” “GIRL ADMITS AFFAIR, FLIES-HERE TO TESTIFY” “DOCTOR LIES, SUSAN SAYS; TELLS OF GIFTS” “DR. SAM MADE LOVE BUT' DIDN’T TALK ABOUT DIVORCE,. SUSAN SAYS” “STORY OF TECHNICIAN DIFFERENT FROM SHEPPARD’S AT INQUEST” “DR. SAM FACES QUIZ AT JAIL, ON MARILYN’S ‘FEAR OF HIM’ “15 DETECTIVES GRILL DR.. SHEPPARD IN JAIL” “POLICE ASSERT COUPLE HAD' VIOLENT ROWS” “SCIENCE CUTS THROUGH COVER-UP” “POLICE END QUIZ AS DOCTOR. WINS NO-TALK STRIKE” “DOCTOR BALKS, QUIZ HALTED” “5 ‘OTHER WOMEN’ LINKED TO DOCTOR” “SIXTH WOMAN IS LINKED IN DOCTOR QUIZ” “[GRAND] JURY WEIGHS EVIDENCE 40 MINUTES AND-ACTS” “THE SHEPPARD STORY: MURDER MYSTERY FULL OF CONTRADICTIONS” The Court does not deem it necessary to analyze in detail the above quoted newspaper editorials, articles and headlines or the remainder of the five volumes ■of clippings submitted into evidence. Suffice it to say that each of the three ■Cleveland newspapers repeatedly printed material which strongly suggested and, in fact, urged petitioner’s guilt. Indicative of the suggestion of guilt was the repeated and extensive coverage given to petitioner’s refusal to submit to a lie detector test or to receive an injection of truth serum. Headlines, in addition to those already referred to but still only a sampling of the total, stated: “DOCTOR VARIES STORY, BARS LIE TEST NOW,” “DR. SHEPPARD REFUSES TO TAKE TRUTH SERUM IN MURDER PROBE,” “DOCTOR BARS TRUTH TEST,” and “DR. SHEPPARD BALKS AT TRUTH SERUM TEST.” And particular mention must be made of the editorial in the Cleveland Press titled “BUT WHO WILL SPEAK FOR MARILYN” which was printed just prior to the swearing in of the jury, for it was indeed one of the most prejudicial. Ignoring the fact that it was a cheap, sobsister editorial, it literally screamed for petitioner’s conviction. When the Supreme Court of Ohio considered the question of whether the trial court should have granted a change of venue, Ohio v. Sheppard, 165 Ohio St. 293, 294-297, 135 N.E.2d 340, 342-343 (1956) the majority opinion of the Court stated: “ •» * * Was the atmosphere in Cleveland as a result of the widespread publicity attendant upon this trial such as to require the trial court to grant a change of venue? “ * * * “The law does not require this court to be so naive as to refuse to recognize the great amount of publicity accorded this case from the time of the discovery of the crime up to the present time. Every development has been given the ‘full treatment’ by the press, radio and television. The interest in each phase of the case has not been confined to the Cleveland area or to Ohio. Syndicated columns and news agency reports have made the case almost as well known in every community of the nation as it is in Cleveland. “It should be borne in mind, however, that the legal question presented to us is whether the defendant was accorded a fair constitutional trial by an impartial jury which could decide the issues of fact solely upon the consideration of the evidence in the light of the law given it by the court. That question is not to be decided on the volume of the publicity or the tendency such publicity may have had in influencing the public mind generally as to the defendant’s guilt or innocence. “ * * * “We believe the trial court was justified in those rulings (the overruling of each motion for change of venue). In Townsend v. State, 17 Ohio Cir.Ct.R.,N.S., 380, 25 Ohio Cir.Dec. 408, affirmed without written opinion in 88 Ohio St. 584, 106 N.E. 1083, it is said: “ ‘The examination of jurors on their voir dire affords the best test as to whether or not prejudice exists in the community against the defendant ; and where it appears that the opinions as to the guilt of the defendant of those called for examination for jurors are based on newspaper articles and that the opinions so formed are not fixed but would yield readily to evidence, it is not error to overrule an application for a change of venue.’ “If the jury system is to remain a part of our system of jurisprudence, the courts and litigants must have faith in the inherent honesty of our citizens in performing their duty as jurors courageously and without fear or favor. Of the 75 prospective jurors called pursuant to this venire only 14 were excused because they had formed a firm opinion as to the guilt or innocence of the defendant. A full panel was accepted before this venire was exhausted, and defendant exercised but five of his allotted six peremptory challenges. “In the light of these facts, and particularly in the light of the fact that a jury was impaneled and sworn to try this case fairly and impartially on the evidence and the law, this court can not say that the denial of a change of venue by the trial judge constituted an abuse of discretion.” The general rule that a change of venue lies within the sound discretion of the trial judge is well settled. The Courts have also agreed that our jury system is based upon the belief of jurors and when jurors testify that they can discount influences of external factors and meet the standard imposed by the Fourteenth Amendment, that assumption is not lightly to be disregarded, Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963). However, and this is a factor which the Supreme Court of Ohio failed to consider, when the circumstances are unusually compelling, the assurances of jurors may be disregarded, though the burden of showing essential unfairness is upon the person who claims such injustice and seeks to have the results set aside, Rideau v. Louisiana, supra, and Adams v. United States ex rel. McCann, 317 U.S. 269, 281, 63 S.Ct. 236, 87 L.Ed. 268 (1942). How to protect an accused from the prejudicial effect of newspaper publicity is indeed a serious and difficult problem. The United States Supreme Court has jealously guarded the right of an accused to a fair trial by a panel of impartial jurors and when, after a conviction, it is determined that newspaper publicity so prejudiced the minds of the prospective jurors as to preclude a fair trial, the Court has ordered a new trial. That Court has, of course, recognized that jurors do not live in a vacuum and certain cases are by their very nature apt to generate publicity and jurors will probably have formed some impression or opinion as to the merits of the case. This problem was discussed by the Court in Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961). In that case, a habeas corpus proceeding was brought to test the validity of petitioner’s conviction of murder and sentence of death in the Circuit Court of Gibson County, Indiana. Petitioner contended that his conviction had been obtained in violation of the Fourteenth Amendment in that he did not receive a fair trial. Mr. Justice Clark, in delivering the opinion of the Court stated at pages 722-723, 81 S.Ct. at pages 1642-1643: “ * * * 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. * * “It is not required, however, that the jurors be totally ignorant of the facts and issues involved. In these days of swift, widespread and diverse methods of communication, an important case can be expected to arouse the interest of the public in the vicinity, and scarcely any of those best qualified to serve as jurors will not have formed some impression or opinion as to the merits of the case. This is particularly true in criminal cases. To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror’s impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court. * * * ” The Court, after noting that the jury-panel consisted of 430 persons of which the trial judge excused 268 on challenges for cause as having fixed opinions as to the guilt of the defendant, stated at page 727, 81 S.Ct. at page 1645: “ * * * An examination of the 2,783-page voir dire record shows that * * * almost 90% of those examined on the point * * * entertained some opinion as to guilt— ranging in intensity from mere suspicion to absolute certainty. * * ” The Court then concluded: “Here the ‘pattern of deep and bitter prejudice’ shown to be present throughout the community * * * was clearly reflected in the sum total of the voir dire examination of a majority of the jurors finally placed in the jury box. * * * ” And Mr. Justice Frankfurter in his concurring opinion, at pages 729-730, 81 S.Ct. at page 1646, observed: “ * - * 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.” This Court, though it recognizes that in the instant case only 14 of the 72 prospective jurors examined stated that they had prejudged the guilt or innocence of the accused, has no compunction in finding that the publicity was so prejudicial to petitioner that the assurances of the jurors must be disregarded for in the words of Mr. Justice Frankfurter, “before they [the jurors] entered the jury box, their minds were saturated by press and radio * * * designed to establish the guilt of the accused.” In a case decided after Irvin v. Dowd, supra, the Supreme Court held it was a denial of due process of law to refuse the request for a change of venue after the people of the community had been exposed repeatedly and in depth to the spectacle of the defendant personally confessing in detail to the crimes with which he was later charged, Rideau v. Louisiana, supra. In that case, the Court did not examine the transcript of the voir dire in reaching its determination as to prejudice. The Court said at page 727 of 373 U.S., at page 1419 of 83 S.Ct.: “ * * * we do not hesitate to hold, without pausing to examine a particularized transcript of the voir dire examination of the members of the jury, that due process of law in this case required a trial