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22 Sheppard v. Maxwell No. 16077 “T would suggest to you, too, and this is particularly directed to those who have come in today, that you do not during the pendency of the trial listen to com- ments about it over the radio or otherwise and do not read newspapers. .Have. somebody preserve those for you, and you can read them—that is, as far as this case is concerned—have the reports of this case taken out and have them preserved for you, and you may read them to your heart’s content after this case is disposed of. I say that because I think you will feel better and you will be better. “Mr. Corrigan [Chief defense counsel]: May I have the Court state to the jury that they will know more about this case than what will appear in- the news- papers? ‘ “The Court: Yes, indeed. You understand, ladies and gentlemen, the entire community has had through news media of this kind, that kind and the other, and discussion by people who really know nothing what- ever about the case, probably, and there have been all kinds of things floating around, there is no dispute about that anywhere, but you will get here the only facts that you are to consider in the determination of this case. They will be presented by the State, and then the defense will have its opportunity to present its views, if there are views to be then presented, and let us be sure that we are relying on what we hear from official authoritative sources and rely on those entirely in our consideration and decision of this case. Let’s forget all about what has been floating in the community. We are now to the serious business of ourselves determining what the facts really are, and we will get that from this witness stand and on the basis of the rules of law that the Court will give you. “Without any formality—does that cover what you wanted? “Mr, Garmone [Defense counsel]: Yes. “The Court: Does that cover what you wanted? “Mr. Corrigan: Yes, that’s what I wanted covered, your Honor. Thank you.” Abbreviated repetitions of this admonition were made throughout the trial whenever the jury recessed, usually ms el No. 16077 4 Sheppard v. Maxwell 23 in the form of the statement that they were to remember the court’s admonition and refrain from discussing the case, even among themselves. We find no instances where defense counsel expressed dissatisfaction with the ade- uacy, style or frequency of the court’s admonitions in this regard. Neither does present counsel point to any such insufficiency.’ Protest was voiced only when the court refused to interrogate the jury as to the Considine broad- cast discussed below, and when it refused the motions for mistrial. ; The District Court has here presumed prejudice from the publicity accorded Dr. Sheppard’s trial. We believe that the presumption should be to the contrary, that the jury is assumed to have obeyed the instructions to avoid all contact with publicity concerning the case before them until some contrary showing has been made. E.g., Estes v. United States, 385 F(2) 609, 615 (CA 5, 1964), cert. denied, 379 U.S. 964 (1965) ; United States v. Agueci, 310 F(2) 817 (CA 2, 1962), cert. denied, 372 U.S. 959 (1963) ; Rizzo v. United States, 8304 F(2) 810, 815 (CA 8, 1962), cert. denied sub nom. Nafie v. United States, 371 U.S. 890 (1962) ; Cohen v. United States, 297 F(2) 760, 764 (CA 9, 1962), cert. denied, 369 U.S. 865 (1962); Holmes v. United States, 284 F(2) 716, 718 (CA 4, 1960). The ra- tionale for this presumption was stated in somewhat differ- ent words by Mr. Justice Holmes more than a half-century ago: “If the mere opportunity for prejudice or corruption is to raise a presumption that they exist, it will be hard to maintain jury trial under the conditions of the present day.” Holt v. United States, 218 U.S. 245, 251, 54 L. Ed. 1021, 1029 (1910). The presumption that obedient to instructions, the jurors ignored publicity during the trial has not been overcome by petitioner. The only showing that any of them en- countered any of this publicity came when the trial judge questioned the jurors about a Winchell broadcast during the trial attributing marital infidelity to Dr. Sheppard. 7 The dissenting opinion in this case, however, now characterizes such admonitions as “equivocal and inadequate,” and also as “infrequent and equivocal.” It has not been pointed out to us that in any of the many attacks on the Sheppard conviction have his able and aggressive counsel ever made such a charge. We are satisfied that the jury readily under- stood the judge’s admonitions and that the dissent’s charge of “equivoca- tion” is not justified. * i t t f ene nee el enter te te ce