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Cee Bier OC) ee on Ra a ae Sheppard v. Maxwell No. 16077 Two jurors advised that they had heard the broadcast, but would not be influenced by it, and an appropriate admoni- tion on the subject was given by the judge. Defense .coun- sel also requested interrogation of the jury as to their knowledge of another broadcast in which one Considine made remarks derogatory to Dr. Sheppard. The trial judge refused this request, observing that he did not think the jury should be harassed with interrogation each morn- ing. We believe that this action was itself within the dis- cretion of the judge, and that it may indeed have been the best thing to do. A discreet judge might well conclude that repetitive reference and inquiry as to matters preju- dicial to the defense would harm rather than help. A sub- stantial number of lawyers skilled in the art-of advocacy would, we think, agree. Compare Estes v. United States, 335 F(2) 609, 615 (CA 5, 1964), cert. denied, 379 US. 964 (1965) ; United States v. Provenzano, 334 F(2) 678, 696 (CA 3, 1964), cert. denied, 379 U.S. 947 (1964) ; Ford v. United States, 233 F(2) 56, 61-62 (CA 5, 1956), cert. denied, 352 U.S. 833, 1 L. Ed.(2) 53 (1956). In any event, any effect that this limitation of interrogation during trial might be thought to have is dissipated by the opportunity accorded defense counsel to interrogate jurors on their motion for a new trial. Three of the jurors were thus questioned, but counsel did not see fit to inquire into possible contacts with trial publicity. On the basis of the record now before us, we can only guess whether the jurors violated the instructions to avoid publicity about the trial in any significant degree, In view of the presumption that such instructions were obeyed, we must hold that petitioner has failed to carry the burden of demonstrating a denial of due process in the trial pub- icity. The District Judge also concluded that news coverage of the:trial deprived petitioner of his constitutional rights because it contributed to a “carnival atmosphere.” Stress is laid on_the manner in which the trial judge allocated the seating available in his small courtroom, giving most of it to the press and installing special tables for them. Now, with the reflection and the hindsight that an interval of ten years has provided, and after all of the appellate tri- bunals have found the judge’s conduct in this regard with- out constitutional fault, it is asserted that the trial judge No. 16077 should have done a better job. We are not told what alter- native measures he should have adopted. Certainly he was without power to slake the public interest. Should he then have selected news representatives who would be regularly favored with admission to the courtroom, and let each day’s trial begin with a scramble by the unfavored to gain access? Should he have moved the trial out of the courtroom into some public hall or auditorium where the public and the press could be accommodated at a greater distance from the jury and counsel? Shall we now speculate whether such planning would have reduced or augmented the so-called “carnival atmosphere?” It is asserted also that too many photographs were taken of the jury, the defendant, and counsel. No photographs were allowed to be taken in the courtroom while the court was in session. In view of today’s increasing dissatisfaction with the aggressive performance of many of the news media, it may indeed be regretted that the trial judge did not enforce more rigid discipline of its representatives. But Sheppard v. Maxwell 25 - we can no more find impropriety of constitutional magni- tude in what occurred than could the other appellate courts that have been challenged to do so. The claim that the trial judge contributed to a “carnival atmosphere” is further supported by emphasis on the in- stallation in the courtroom of a microphone and loud speakers. This is surprising in view of the fact that it has become regular practice to install such electronic equipment in modern courtrooms, including those occupied by the United States District Courts. We find no merit in this claim. The opinion of the District Court additionally criticizes activities of the press as follows: “The Court need not be naive, and it does not stretch its imagination to recognize that one of the purposes of photographing the jurors so often was to be assured that they would look for their photographs in the news- papers and thereby expose themselves to the prejudi- cial reporting. Also, the newspapers ran editorials praising the trial judge (he was a candidate for re-election) and published photographs and sketches of him in at least 46 separate issues. This was certainly an attempt to bring him around to their way of thinking.” 231 F. Supp. 63. (Emphasis supplied.) aR 4 i te whe mt fat at ab tf a et er eerie ere St