◆ SpookStack

8 Sheppard v. Maxwell : No. 16077 larly with allegedly prejudicial publicity, this is the Fed- eral rule as well. Estes v. United States, 335 F(2) 609, 614 (CA 5, 1964), cert. denied, 379 U.S. 964 (1965) ; United States v. Lombardozzi, 335 F(2) 414, 416-17 (CA 2, 1964), cert. denied, 379 U.S. 914 (1964); Hoffa v. Gray, 323 F (2) 178 (CA 6, 1963), cert. denied, 375 U.S. 907 (1963) ; United States y. Decker, 304 F (2) 702, 704 (CA 6, 1962); Bearden v. United States, 304 F(2) 532 (CA 5, 1962), vacated on other grounds, 372 U.S. 252 (1968), on remand, 320 F(2) 99, 101-03 (CA 5, 1968), cert. denied, 876 U.S. 922 (1964); Greenhill v. United States, 298 F(2) 405 (CA 5, 1962), cert. denied, 371 U.S. = 830 (1962) ; Blumenfield v. United States, 284 F(2) 46 (CA 8, 1960), cert. denied, 365 U.S. 812 (1961): Dillon v. United States, 218 F(2} 97, 103 (CA 8 1958), cert. dismissed, 350 U.S. 906, 100 L. Ed. 796 (1955) ; Kersten v. United States, 161 F (2) 337 (CA 10, 1947), cert. denied, 831 U.S. 851, 91 L. Ed, 1859-(1947) : Shushan v. United States, 117 F(2) 110 (CA 5, 1941), cert. denied, 313 U.S. ’ . ? » Cert, i 79 Ba oe (1885), ert. denied, 295 U.S. 739, nh the case at bar, the trial judge held in abe motions for change of venue and for continuance advising that he would first by a voir dire examination determine whether a fair jury could be selected notwithstanding the alleged prejudicial publicity. Under Ohio law, this was proper procedure. Prior to Dr. Sheppard’s conviction the Ohio Supreme Court had approved a lower court statement, “The examination of jurors on their voir dj affords the best test as to whether or not orejudies exists in the community against the defendant: and where it appears that the opinions as to the guilt of the defendant of those called for examination for jurors are based on newspaper articles and that the opinions so formed are not fixed but would yield readily to evidence, it is not error to overrule an application for a change of 7 sora, achat ge of venue.” Townsend v. State, In sustaining the convicti : Supreme Court said lon of Dr. Sheppard, the Ohio “For example, in Richards v. State 43 Ohi 212, 183 N.E., 36, it was held that the exercise ofthe ‘ ’ No. 16077 Sheppard v. Maxwell 9 right to order a change of venue lies in the trial court’s discretion, and that a refusal to order a change of venue without prejudice until it can be determined whether a fair and impartial jury can be impaneled is not an abuse of discretion. . . “If the jury system is to remain a part of our system of jurisprudence, the courts and litigants must have faith in the inherent honesty of our citizens in performing their duty as jurors courageously and without fear or favor. Of the 75 prospective jurors called pursuant to this venire only 14 were excused because they had formed a firm opinion as to the guilt or innocence of the defendant. A full panel was ac- cepted before this venire was exhausted, and defendant exercised but five of his allotted six peremptory chal- enges. “In the light of these facts, and particularly in the light of the fact that a jury was impaneled and sworn to try this case fairly and impartially on the evidence and the law, this court can not say that the denial of a change of venue by the trial judge constituted an abuse of discretion.” State v. Sheppard, 165 Ohio St. 296-97. In determining whether Dr. Sheppard has carried the burden of demonstrating the unconstitutionality of his trial, surrounded as it was by pervasive publicity, it is our duty to review independently this voir dire examination of the prospective jurors in the state court. Irvin v. Dowd, 366 U.S. 717, 723 (1961) ; United States ex rel. Bloeth v. Denno, 318 F(2) 364, 372 (CA 2, 1963), cert. denied, 872 U.S. 978 (1963); United States ex rel. Brown v. Smith, 306 F(2) 596, 602 (CA 2, 1962), cert. denied, 372 U.S. 959 (1963) ; Geagan v. Gavin, supra, 292 F(2) 246- - 47. The voir dire examination fills nearly 1600 pages in the record of the present case. Each prospective juror was questioned about his acquaintance with the pretrial pub- licity, and each of those who ultimately returned the guilty verdict swore that such publicity had created in his mind no opinion as to the guilt or innocence of the defendant and would not affect his deliberations. A reading of the voir dire discloses its thoroughness and careful inquiry as to any effect that publicity might have had on the veniremen, We find 1t without substantial fault and ‘| ‘f |