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26 Sheppard v. Maxwell No. 16077 Even if we were to join in the apparently gratuitous in- ference as to the press’ motives, we have just examined the reasons why we cannot join in the presumption that the jurors violated their oaths and instructions by exam- ining the trial publicity.° Nor are we willing to assume the judicial venality or timidity we would have to assume to find any effect of such publicity on the judge in the face of a record which is entirely devoid of any evidence of trial misconduct on his part. _ We ponder whether the flamboyant and sometimes shabby pretrial exhibitions of the press in this case would have had a greater tendency to predispose prospective jurors to an early suspicion of guilt of the accused than the news that a grand jury had indicted him followed by his arrest and being required to stand trial for murder. Are the procedures of our American courts, which we justly boast to be the fairest in the world, without power to seat an impartial jury notwithstanding its previous knowledge that an earlier jury of the accused’s peers, a grand jury, had by its indictment accused him of murder? We do not think so. More fundamentally, we are struck by the difficulty some ten years after the trial of indulging in the proposed speculation that had it been held in some other county in Ohio, the interest of the press, the radio and T.V. would have subsided, or that the citizens of some rural county would be less interested in the colorful events involved than their brothers in the big city. Was the interest in the long ago Scopes trial less because it was held in a rural area of Tennessee? Had the trial judge here decided to postpone the trial a month, six months, or a year, would not fresh and more colorful cries of righteous indignation be heard from all of today’s media of information? Whither in time or place should a court run to attempt to seat a jury com- pletely disinfected of all news, and at the same time intelli- gent? Compare Rees v. Peyton, 341 F(2) 859, 863 (CA 4, 1965) +~United States v. Cohn, 230 F. Supp. 589, 590-91 (S.D. N.Y. 1964). Should a Federal Judge now speculate whether change of scene or postponement might have offered a way to administer some judicial catharsis ®The dissent mentions photographs taken of the home and family of juror Mancini while she was away at the trial. It should be noted that Mrs. Mancini was an alternate juror, discharged before the start of the jury’s deliberations. This picture taking enterprise, however, does portray the brashness of some of today’s news photographers. No. 16077 Sheppard v. Maxwell 27 to cleanse away all that prospective jurors might have seen, read, or heard about a matter of such interest as the killing of Mrs. Sheppard? We do not think that such specu- lative review of the trial judge’s discretion should now be indulged in the context of this case. _ Judge Blythin summed up his own estimate of the situa- tion in the following language: “We can’t control publicity, and I do not believe that you will ever end the publicity in this case until you end the trial of this case, and J think perhaps it 1s our duty to put that business in reverse and proceed on a business-like, fair, honest, legal basis to try the case and have it disposed of in the interest of the State and certainly it is in the interest of Sam Sheppard to know whether a fair and impartial jury would declare him guilty or not guilty on the evidence which will be here produced... .” We hold that petitioner failed to meet his burden of proving that the pretrial and_ trial publicity ‘discussed above denied him due process of law or its equal protection. 2) Disqualification of trial judge. The District Judge held that petitioner’s constitutional rights were violated because the trial judge failed to recuse himself sua sponte from presiding at the Sheppard trial. The basis of this conclusion was some pretrial remarks which Judge Blythin is alleged to have made, indicating his belief that Sheppard was guilty. \As in the case of the alleged prejudice of the jury, partiality and bias of the trial judge have been presumed without any proof that the trial judge did or said anything in the conduct of the trial that could be attributed to or which demonstrated preju- dice against the petitioner. . The material from which this finding was.made came to light after the instant petition for habeas. corpus was filed. There was put in evidence a statement of a New York columnist, one Dorothy Kilgallen Kollmar, wherein she stated that at the beginning of the trial she was invited into the Chambers of Judge Blythin and there told of the judge’s belief that petitioner was “guilty as hell. There is no question about it.” The full account of this alleged and interesting interview is set out in the District Court’s ©