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74 Sheppard v. Maxwell No. 16071)! No. 16077 Sheppard v. Maxwell . - 15 uror js prejudicial absent effective rebuttal. Mattox v, My brothers have, however, written a careful and schol- rated States, supra; Stone v. United States, supra; Little arly opinion. I concur with the result reached in three out . i nited States, supra; Wheaton v. United States, supra; of the five of the issues discussed therein. ohnson v. United States, 207 F.2d 314 (C.A. 5, 1953), The federal courts, of course, do not review claimed fed- cert. denied, 347 U.S..988 (1953) ; Ryan v. United States, eral constitutional violations until state remedies have ot F.2d 779 (C.A. D.C., 1951), cert. denied, 342 U.S. 928. been exhausted. Thorough as have been petitioner’s efforts ( ae , es ' in this regard, it cannot be clearly established that claimed 1@ presumption is even stronger when there is com- | violations of defendant’s Fifth Amendment rights (through _. munication with a member or members of the jury after}. lie detector testimony) have been presented to the Ohio ares and during jury deliberation concerning the ver-'# Supreme Court. Nor have the belated witness statements dict Mattox v. United States, supra; Wheaton v. United :* as to the trial judge’s comments on defendant’s guilt ever tates, supra; Little v. United States, supra. : been considered by that body. ; C In 1892 Chief Justice Fuller, speaking for a unanimous: __ I also agree with my brothers that the clamorous and ourt, said: 7 ' frequently abusive ublicity prior to trial, plus the trial “Tt 0 ital $ . Np ' Judge’s denial of change of venue, probably did not, o u ait the ital oepital cases that the jury should pass themselves, rise to the level of constitutional violations, disturb the exer we ¢ de tie ernal causes tending to As Judge O’Sullivan notes, the number of jurors with ment, Nor can any or de 4 erate and unbiased Judg-, fixed opinions about this case as of the time the jury was minictrats ne y £round of suspicion that the ad-” seated does not show the same extent of deep and abidin erated Here asuice has been interfered with be: community prejudice demonstrated in Irvin v. Dow arated. Hence, the separation of the jury in such 2, supra, and Rideau v. Louisiana, supra. way as to expose them to tampering, may be reason }: _ Of some weight in the consideration of the pretrial pub- for a new trial, variously held as absolute: or primal: linity 3 . : ! facie, and subject to rebuttal by the prosecuti on: i ; licity issue is a concern for that particular declaration of o rebut rights which our forefathers chose to put first among the tock npent “Wha oot ingleating that a tampering really {.: amendments. If the exercise of freedom of speech or press and anes cited n, Cr. Pl. and Pr. §§ 821, 823, 824, ' in reporting or exp g crime could serve to immunize a ps: so “ person charged wit.. crime from prosecution and trial, P rivate communications, possibly prejudicial be- _ Shortly the demands for limitation of this historic right tween jurors and third persons, or witnesses, or the {:: would become extremely pressing. The smarter criminal officer in charge, are absolutely forbidden, and in- !;, would know how to find a means to immunize himself from validate the verdict, at least unless their harmlessnegs }*: trial by securing publication of a well-timed if adverse is made to appear.” Mattox v. United States, supra |: story. The power of the press to aid in maintaining the at 150. | integrity of government by exposing corruption or special Th re privilege would be jargely nullified. h the United ‘ ere is absolutely no way by which vt’ In one of the relatively few cases where the Uni » these phone calls—totally menitored ae can Emow that # States Supreme Court has set aside State court convictions Side party is concerned—were harmless. I believe that ° because of pretrial publicity, Mr. Justice Clark noted: Judge"Weinman Was correct in relying on this ground also. “It is not required, however, that the jurors be totally ignorant of the facts and issues involved. In THE OPINION OF THE COURT . these days of swift, widespread and diverse methods of For the ta . communication, an important case can be expected to ith th Conegons stated, I find myself in disagreement arouse the interest of the public in the vicinity, and mopeal e Court concerning the fundamental issues of this scarcely any of those best qualified to serve as jurors will not have formed some impression or. opinion as to