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M6 Sheppard v. Maxwell. No. 16077 perhaps unparalleled in recent annals. Throughout the preindictment investigation, the subsequent legal skirmishes and the nine-week trial, circulation-con- scious editors catered to the insatiable interest of the American public in the bizarre. Special seating facili- ties for reporters and columnists representing local papers and all major news services were installed in the courtroom. Special rooms in the Criminal Courts Building were equipped for broadcasters and tele- casters. In this atmosphere of a ‘Roman holiday’ for the news media, Sam Sheppard stood trial for his life.” 165 Ohio St. 294. It should be observed here, however, that no rule of law, no procedural device, and no constitutional guarantee could then or now erase the murder of Dr. Sheppard’s wife or its circumstances; such events inevitably cast the Sheppard trial into the setting so graphically described by Judge Bell. Judge Bell’s accurate observation, in our view, merely demonstrates that the Ohio Supreme Court was fully aware of the subject before it. The fact that two of the Ohio judges dissented bespeaks the searching and vigor that must have attended the deliberations of the Seven Judges whose decision ended Ohio’s appellate review of the matter now before us. The Supreme Court of the United States also had J udge Bell’s preface before it. Justice Frankfurter recited it in full in his memorandum. The main points earnestly pressed upon the District Judge and this Court are not the belated discovery of Dr. Sheppard’s present counsel. Before examining in detail the nature of the publicity given Dr. Sheppard’s case, it is well to note that he must carry the burden of demonstrating the constitutional vice in his conviction. As stated by the First Circuit in another publicity case, “the question whether jurors are impartial in the constitutional sense is one of mixed law and fact as to which the,challenger has the burden of persuasion. . . .” Geagan v. Gavin, 292 F(2) 244, 246 (CA 1, 1961), cert. dened, 370 U.S.~903~(1962). This burden is one which must be carried “‘not-as a matter of speculation but as a demonstrable reality.” United States ex rel. Darcy v. Handy, 351 U.S, 454, 462, 100 L. Ed. 1831, 1888 (1956) (emphasis supplied) ; Stroble v. California, 343 U.S. 181, 198, 96 L. Ed. 872, 885 (1952). See also Adams v. United States ex rel. McCann, 317 U.S. 269, 281, 87 L. Ed. 268, - 276 (1942). . | No. 16077 Sheppard v. Maxwell 7 Formally, the errors charged in this area of publicity are the District Judge’s denial of motions for a change of venue, for a postponement of trial, and for mistrial. It is the Jaw of Ohio that these are matters for a trial judge’s discretion, not subject to review except for abuse thereof. ' Townsend v. State, 17 C.C. (N.S.) 380, 25 0.C.D. 408, aff'd, 88 Ohio St. 584, 106 NE 10838 (1913); Richards v. State, 43 Ohio App. 212, 215, 188 NE 36 (1932) ; Dorger v. State, 40 Ohio App. 415, 419, 179 NE 143 (1931), appeal dismissed, 124 Ohio St. 659, 181 NE 881 (1931), cert. denied, 284 U.S. 689, 76 L. Ed. 581 (19382); State v. Stemen, 90 Ohio App. 309, 310, 106 NE(2) 662 (1951), cert. denied, 342 U.S. 949, 96 L. Ed. 705 (1952) ; State v. Deem, 154 Ohio St. 576, 97 NE(2) 13 (1951); State v. Sheppard, 165 Ohio St. 298, 296, 185 NE(2) 340 (1956), cert, denied, 352 U.S. 910, 1 L. Ed(2) 119 (1956). Such is the law in other states. 24A C.J.S. Criminal Law 8§ 1864, 1865, 1866, p. 715 & n. 16 (1962). And dealing particu- 8A stipulation of issues in the District Court raised the questions whether petitioner's rights were violated by publication of a list of veniremen in advance of trial, or by the trial judge’s failure to se- quester the jury sua sponte. The District Judge stated these issues were considered under the publicity heading, and it appears that he found a deprivation of due process in each claim. We are unable to agree. As a lawyer who through many years has observed the regular publi- cation of the names of the venire in the local paper in advance of the term at which they were to serve, the writer of this opinion finds novel indeed the contention that “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 [was] a violation of petitioner’s constitutional rights.” Neither citation of authority nor judicial reason is offered in support of this claim, and we find it unpersuasive. We find equally unpersuasive the claim based on failure to sequester the jury. No formal request therefor was made at any time by the prosecution or defense. We cannot speculate now whether able defense counsel would have welcomed such a procedure, or whether long insula- tion and confinement of a jury trying a first degree murder case might be thought more likely to lead to conviction and a death penalty than permitting a jury the relaxation and refreshment of living at home, even with the possible exposure to extracurial publicity. Eminent advocates might be in disagreement on the point. Cf. United States v. Provenzano, 334 FF (2) 678, 696 (CA 3, 1964), cert. denied, 379 U.S. 947 (1964). We cannot now speculate as to why defense counsel withheld such a request. There is no record to tell us whether the suggestion may have been made in Chambers and there opposed by defense counsel. That point was never made to the Ohio courts. And we will certainly not, in the context of this case and at this distance, find constitutional vice in the trial judge’s failure to do what was not requested of him. Compare Odell v. Hudspeth, 189 F(2) 300, 303 (CA 10, 1951), cert. denied, 342 U.S. 878, 96 L. Ed. 656 (1951); Wheeler v. United States, 165 F(2) 225, 229 (CA D.C. 1947), cert. denicd, 383 U.S. 829, 92 L. Ed. 1115 (1948) ; Stephan v. United States, 1383 F(2) 87, 99 (CA 6, 1943), cert. denied, 318 U.S. 781, 87 L. Ed. 1148 (1943). It should be noted here that his failure to sequester the jury sua sponte was not charged as error on Sheppard’s appeal. SOT SIO ee