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We feel no need to expand on the nature of this trial publicity, for petitioner's claim of constitutional error on this account is controlled by considerations rather different from those we have just explored. Varying degrees of exposure to the pretrial publicity were admitted by the jurors on voir dire, but with the single exception of the Winchell broadcast noted below there is no specific showing that any of the jurors had any contact with the trial publicity. Petitioner emphasizes one article appearing during the trial entitled "But who will speak for Marilyn? Our own review of the record in this case discloses that the trial judge, from the beginning of the trial to its end, repeatedly employed traditional admonitions to the jury reminding them of their duty and oath to hear and try the case before them solely upon the evidence adduced in the courtroom.
Because of its thoroughness, we set out in full an early charge to the whole jury:. And I will repeat it again for the benefit of the two new jurors who have come, alternate jurors who have come into the picture. You are not to permit anyone to talk about it to you. You are not to remain anywhere where other people are talking about it among themselves.
You are not to talk about it among yourselves, in your jury room or elsewhere. Have somebody preserve those for you, and you can read them — that is, as far as this case is concerned — have the reports of this case taken out and have them preserved for you, and you may read them to your heart's content after this case is disposed of.
I say that because I think you will feel better and you will be better. Corrigan [Chief defense counsel]: May I have the Court state to the jury that they will know more about this case than what will appear in the newspapers? You understand, ladies and gentlemen, the entire community has had through news media of this kind, that kind and the other, and discussion by people who really know nothing whatever about the case, probably, and there have been all kinds of things floating around, there is no dispute about that anywhere, but you will get here the only facts that you are to consider in the determination of this case.
They will be presented by the State, and then the defense will have its opportunity to present its views, if there are views to be then presented, and let us be sure that we are relying on what we hear from official authoritative sources and rely on those entirely in our consideration and decision of this case.
Let's forget all about what has been floating in the community. We are now to the serious business of ourselves determining what the facts really are, and we will get that from this witness stand and on the basis of the rules of law that the Court will give you.
Abbreviated repetitions of this admonition were made throughout the trial whenever the jury recessed, usually in the form of the statement that they were to remember the court's admonition and refrain from discussing the case, even among themselves. We find no instances where defense counsel expressed dissatisfaction with the adequacy, style or frequency of the court's admonitions in this regard. Neither does present counsel point to any such insufficiency. The District Court has here presumed prejudice from the publicity accorded Dr. Sheppard's trial. We believe that the presumption should be to the contrary, that the jury is assumed to have obeyed the instructions to avoid all contact with publicity concerning the case before them until some contrary showing has been made.
Nafie v. The rationale for this presumption was stated in somewhat different words by Mr. Justice Holmes more than a half-century ago: "If the mere opportunity for prejudice or corruption is to raise a presumption that they exist, it will be hard to maintain jury trial under the conditions of the present day. The presumption that obedient to instructions, the jurors ignored publicity during the trial has not been overcome by petitioner. The only showing that any of them encountered any of this publicity came when the trial judge questioned the jurors about a Winchell broadcast during the trial attributing marital infidelity to Dr.
Two jurors advised that they had heard the broadcast, but would not be influenced by it, and an appropriate admonition on the subject was given by the judge. Defense counsel also requested interrogation of the jury as to their knowledge of another broadcast in which one Considine made remarks derogatory to Dr. The trial judge refused this request, observing that he did not think the jury should be harassed with interrogation each morning.
We believe that this action was itself within the discretion of the judge, and that it may indeed have been the best thing to do. A discreet judge might well conclude that repetitive reference and inquiry as to matters prejudicial to the defense would harm rather than help.
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A substantial number of lawyers skilled in the art of advocacy would, we think, agree. Compare Estes v. Provenzano, F. In any event, any effect that this limitation of interrogation during trial might be thought to have is dissipated by the opportunity accorded defense counsel to interrogate jurors on their motion for a new trial. Three of the jurors were thus questioned, but counsel did not see fit to inquire into possible contacts with trial publicity. On the basis of the record now before us, we can only guess whether the jurors violated the instructions to avoid publicity about the trial in any significant degree.
In view of the presumption that such instructions were obeyed, we must hold that petitioner has failed to carry the burden of demonstrating a denial of due process in the trial publicity. The District Judge also concluded that news coverage of the trial deprived petitioner of his constitutional rights because it contributed to a "carnival atmosphere.
Now, with the reflection and the hindsight that an interval of ten years has provided, and after all of the appellate tribunals have found the judge's conduct in this regard without constitutional fault, it is asserted that the trial judge should have done a better job. We are not told what alternative measures he should have adopted. Certainly he was without power to slake the public interest. Should he then have selected news representatives who would be regularly favored with admission to the courtroom, and let each day's trial begin with a scramble by the unfavored to gain access?
Should he have moved the trial out of the courtroom into some public hall or auditorium where the public and the press could be accommodated at a greater distance from the jury and counsel? Shall we now speculate whether such planning would have reduced or augmented the so-called "carnival atmosphere?
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No photographs were allowed to be taken in the courtroom while the court was in session. In view of today's increasing dissatisfaction with the aggressive performance of many of the news media, it may indeed be regretted that the trial judge did not enforce more rigid discipline of its representatives. But we can no more find impropriety of constitutional magnitude in what occurred than could the other appellate courts that have been challenged to do so. The claim that the trial judge contributed to a "carnival atmosphere" is further supported by emphasis on the installation in the courtroom of a microphone and loud speakers.
This is surprising in view of the fact that it has become regular practice to install such electronic equipment in modern courtrooms, including those occupied by the United States District Courts. We find no merit in this claim. The opinion of the District Court additionally criticizes activities of the press as follows:. Also, the newspapers ran editorials praising the trial judge he was a candidate for re-election and published photographs and sketches of him in at least 46 separate issues.
This was certainly an attempt to bring him around to their way of thinking. Even if we were to join in the apparently gratuitous inference 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 examining the trial publicity.
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. 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 completely disinfected of all news, and at the same time intelligent? Compare Rees v. Peyton, F.
Cohn, F. Should a Federal Judge now speculate whether change of scene or postponement might have offered a way to administer some judicial catharsis to cleanse away all that prospective jurors might have seen, read, or heard about a matter of such interest as the killing of Mrs.
James E. Kilbane
We do not think that such speculative 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 situation in the following language:. 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.
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.
http://www.cantinesanpancrazio.it/components/hezahox/94-come-spiare.php 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 prejudice 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 District Judge seemed to believe that with Judge Blythin's voice stilled by death, this recitation of his statements became "uncontroverted evidence in this case and must be accepted as being true. A similar charge was made against Judge Blythin by one Edward T.
His statement was that during a discussion of the Sheppard case in July, , prior to the trial, Judge Blythin remarked that "Sam Sheppard was as guilty as he was innocent. We believe that the District Judge was under a misapprehension in assuming that because Judge Blythin could not answer the charges against him, such charges constituted "uncontroverted evidence" that Judge Blythin had made the statements attributed to him.
There are many circumstances in which testimony need not be accepted even though formally uncontradicted. Isthmian Lines, Inc.