◆ SpookStack

9 Sheppard v. Maxwell No. 16077 where he had been confined under a life sentence since his conviction in 1954. Ohio was granted 60 days within which to take further action against Dr. Sheppard. Shep- pard v. Maxwell, 231 F. Supp. 37 (July 15, 1964). This Court has stayed the order fixing such time limitation. eppard’s conviction and the denial of his motion for new trial on grounds of newly discovered evidence were both affirmed on appeal by the Court of Appeals for Cuya- hoga County, Ohio. State v. Sheppard, 100 Ohio App. 345, 128 NE(2) 471 (1955) ; State v. Sheppard, 100 Ohio App. 399, 128 NE(2) 504 (1955). The Ohio Supreme Court .. dismissed an appeal from the decision affirming the denial Si of a new trial in State v. Sheppard, 164 Ohio St. 428, 131 NE(2) 837 (1956), and affirmed the conviction in nate v. Sheppard, 165 Ohio St. 298, 1385 NE(2) 340 (1956 * two judges dissenting. Application for certiorari was~ denied by the United States Supreme Court, Sheppard v. Ohio, 352 U.S. 910, 1 L. Ed. (2) 119 (1956) , and rehearing was denied, Sheppard v. Ohio, 352 U.S. 955, 1 L. Ed.(2) 245 (1956). Dr. Sheppard’s later petition to the Supreme Court of Ohio for a writ of habeas corpus was denied. State, ex rel. Sheppard vy. Alvis, 170 Ohio St. 551, 167 NE(2) 94 (1960). Dr. Sheppard thus has had the benefit of all the processes of law provided by the State of Ohio, and the United States Supreme Court did not see fit to take the case for its review. The habeas corpus proceeding here involved was com- menced in the United States District Court April 11, 1963, arging, as amended, some 23 separate constitutional defects in Sheppard’s conviction. Some of these had already “been found without merit by the Ohio courts and others ere new. Indicating his view that there were probably other constitutional. imperfections in Dr. Sheppard’s trial, the District Judge bottomed his decision on four separate grounds, (1) newspaper publicity before and during the trial denied Sheppard a fair trial, (2) the trial judge should have disqualified himself, (3) evidence that Shep- pard had refused to takévalie detector test and that another witness had taken such.a test was im roperly brought before the jury, and (4) the bailiffs in charge of the jury after. the cause was submitted to it improperly allowed individual jurors to make telephone calls to their families. Grounds 1 and 4 were passed upon in the Ohio Court of ppeals and Supreme Court and were found to be without merit. They were also relied upon in the application to the United States Supreme Court for certiorari, which No. 16077 Sheppard v. Maxwell ns 3 was supported by the same volumes of newspaper publicity as are before us. Ground 2 and part of ground 8 were first asserted in the instant petition for habeas corpus. We are of the opinion that the release of Dr. Sheppard was improvident, and that the District Court order should be vacated and Dr. Sheppard remanded to the custody of the respondent Warden of the Ohio Penitentiary. Before detailed discussion of the issues before us, it should be preliminarily observed that Dr. Sheppard was released not because of any evidentiary showing that the jury was prejudiced by the newspaper and other publicity or that the trial judge exhibited partiality or prejudice in his conduct of the trial, nor because of any evidence that the jurors’ calls to their homes contained any improprieties. The District Judge presumed that the judge and the jury must have been so affected by the publicity and other events as to be unable to discharge their respective responsi- bilities in keeping with constitutional standards. ‘Review- ing substantially the same record as did the District Judge here, the appellate machinery of Ohio, challenged to do so, was unable to discern the evils now presumed by the Dis- trict Judge. Aware that as a matter of formal rule, denial of certiorari by the United States Supreme Court does not bespeak its approval of a state court decision, we do men- tion that critical points now made by Dr. Sheppard did not excite the Supreme Court to take for review this case now characterized by the District Judge as “a mockery of _ justice.” The District Judge’s comprehensive and painstakingly ' prepared opinion exhibits his searching and laudable zeal to protect Dr. Sheppard’s constitutional rights. He cast a wide and fine net over Dr. Sheppard’s trial and its back- ground, gathering in many imperfections each of which was found to have offended the United States Constitution. 2The District Judge said, “The Court... has found five separate violations of petitioner’s constitutional tights, ie., failure to grant a change of venue or a continuance in view of the newspaper publicity before trial; inability of maintaining impartial jurors because of the publicity during trial; failure of the trial judge to disqualify himself although there was uncertainty as to his impartiality; improper intro- duction of lie detector test testimony and unauthorized communications to the jury during their deliberations. Each of the aforementioned errors is by itself sufficient to require a determination that petitioner was not afforded a fair trial as required by the due process clause of the Four- teenth Amendment. And when these errors are cumulated, the trial can only be viewed as a mockery of justice. For this reason, it is not neces- sary to consider the remainder of the 23 stipulated issues, which range from having significant merit to no merit at all’ 231 F. Supp. 71. (Emphasis supplied.) .