(dissenting).
If ever flagrant and tolerated interference of news media in a criminal trial served to deprive a defendant of his constitutional rights to due process and a fair trial, this surely must be such a case.
The United States District Judge whose writ of habeas corpus we review declared this trial void and ordered the State of Ohio either to retry petitioner or set him free. By so doing, Judge Weinman did no more than fulfill his sworn obligation to uphold the Constitution of the United States. I would affirm.
The record which we review discloses a trial which fell far below minimum federal constitutional standards of due process.
The fundamental concept of a jury trial requires the protection of the jury from extra-judicial information about the case.1 This doubtless can never be perfectly achieved in a trial of great public interest because of pre-trial publicity.2 But this fact serves as no excuse for failure to employ all of the known and established measures for selection of an impartial jury and for the protection of that jury from outside influences during the trial itself.
This trial was held in a murder-shocked community in close proximity to the date of the crime in the midst of “unparalleled” publicity. (See State v. Sheppard, 165 Ohio St. 293, 294, 135 N.E. 2d 340 (1956)) During the nine weeks of trial this jury was allowed to separate each night and weekend to their individual neighborhoods and homes. Such admonitions as the trial judge gave pertaining to news media during the first month of testimony were equivocal and inadequate.
During this trial there were constant extra-judicial contacts and communications with this jury. Many of these extra-judicial contacts and communications with the jury are clearly established by the record. As to others, Judge Weinman found that jury knowledge should be implied because of a factual record which impels me to the same conclusion.
A number of the most important and most prejudicial of the news media communications were drawn from sources completely outside of the trial record. These were not just news media inaccuracies or debatable comments in reporting court proceedings, they represented deliberate and highly prejudicial supplementation of the trial record.
Elaborate measures were provided for news media convenience in covering the trial. But the standard measures which *739could have been employed to prevent the news media from influencing the outcome of trial were not employed. In a trial atmosphere which the Supreme Court of Ohio described as “a Roman Holiday for the press,” the news media were frequently allowed to become the dominant factor in a courtroom where defendant was on trial for his life. The judge who presided at this trial repeatedly professed his inability to control these events. In fairness it should be noted that he was in the most difficult and vulnerable position possible to undertake to do so.
But at the outset it should be stated that it was not just abuse of freedom of the press which accounted for the violations of due process in this trial; it was failure of the judicial process also. This case provides no argument for repeal of the First Amendment or for immunization from prosecution of any person indicted for crime.
A judge assigned to try a controversial criminal case in the midst of great public excitement has the duty to guarantee due process of law. He also has the power to do so. Seven principal measures are available to him to protect the right to a fair trial of a person charged with crime.
1) On defendant’s motion he can grant a change of venue to a distant locale in his same state which is less concerned with the crime. Ohio Rev.Code Ann. § 2311.38; Rideau v. State of Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963); Irvin v. Dowd, supra.
2) He can adjourn the trial, at least briefly, until a peak of public excitement (or a judicial election!) has passed. Ohio Rev.Code Ann. § 2945.02; Rizzo v. United States, 304 F.2d 810 (CA 8,1962), cert. denied, Nafie v. United States, 371 U.S. 890, 83 S.Ct. 188, 9 L.Ed.2d 123 (1962) .
3) He can lock up the jury during trial so that it is guarded from outside contact. Ohio Rev.Code Ann. § 2945.31; United States v. Holovachka, 314 F.2d 345 (CA 7, 1963), cert. denied, 374 U.S. 809, 83 S.Ct. 1695, 10 L.Ed.2d 1033 (1963); Baker v. Hudspeth, 129 F.2d 779, (CA 10, 1942), cert. denied, Baker v. Hunter, 317 U.S. 681, 63 S.Ct. 201, 87 L.Ed. 546 (1942); Stone v. United States, 113 F.2d 70 (CA 6, 1940).
4) Absent these precautions he has increased responsibilities in screening the jury from extra-judicial influences. See Turner v. State of Louisiana, 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424 (1965).
He has the duty to prohibit news media contact with the jury. Mattox v. United States, supra. He has the power to exclude photographers from his courtroom. Canon 35, American Bar Association, Canons of Judicial Ethics.3 He has the power to warn the news media that if communications prejudicial to either side in the trial and not derived from in-court testimony are widely disseminated, that this may cause a mistrial. See United States v. Accardo, 298 F.2d 133 (CA 7, 1962).
5) He has the duty to order the jury not to read or listen to any newspaper, *740radio or television material bearing on the trial. Coppedge v. United States, 106 U.S.App.D.C. 275, 272 F.2d 504 (1959); Schoeneman v. United States, 115 U.S. App.D.C. 110, 317 F.2d 173 (1963); Carter v. United States, 102 U.S.App.D.C. 227, 252 F.2d 608 (1958).
6) He has the duty if it is called to his attention that highly prejudicial material is widely disseminated in the open community wherein a jury is living at home, to inquire as to whether the jury has actually heard or read it; and if so, to determine whether prejudice resulted; and if so, to grant a new trial. Krogmann v. United States, 225 F.2d 220 (CA 6, 1955); Marson v. United States, 203 F.2d 904 (C.A. 6, 1953).
7) He has the duty to be particularly alert to guard the jury against any outside communication during its deliberations or verdict, and if unauthorized communications are shown, prejudice is presumed, and absent effective rebuttal of such prejudice, he has the duty to grant a new trial. Mattox v. United States, supra; Little v. United States, 73 F.2d 861, 96 A.L.R. 889 (CA 10, 1934); Wheaton v. United States, 133 F.2d 522 (CA 8, 1943). See also Ohio Rev.Code Ann. § 2945.33; State v. Adams, 141 Ohio St. 423, 48 N.E.2d 861, 146 A.L.R. 509 (1943).
In this case it must be recorded that the trial judge made no effective use of any of these measures.
BACKGROUND FACTS 4
What follows are the stark and undisputed facts shown by this total record— omitting for the moment the legal arguments pertaining to how and whether each possible issue has been properly raised, and omitting also the five trial events upon which I would affirm issuance of this writ.
This was a capital case.
Defendant was charged with first degree murder for the killing of his wife.
Defendant and his wife were last seen in their home about midnight, July 3, 1954, after a normal social evening.
Defendant first reported the murdep at 6 a. m., July 4, 1954, asserting that he had been awakened by his wife’s screams and had fought with and been knocked out by “an intruder.”
The wife had been brutally murdered by 35 blows with an unidentified weapon.
Defendant bore visible signs of physical injury and there was medical evidence as to injury to his neck and head.
Defendant’s account of the events had a vagueness about important matters which he attributed to the injuries and from which the prosecution later inferred guilt.
Defendant clearly had the opportunity to murder his wife on the night in question. No other suspect of apparent significance appeared in the case.
But the normal evidence of murder-identification, confession, motive, and murder weapon — was completely lacking at the beginning of the investigation.
As a result of the paucity of obvious proofs, there was no immediate arrest.
A newspaper campaign for a solution to the crime began and was pushed with incessant vigor by Cleveland’s three newspapers — but in particular by The Cleveland Press.
There was widespread publicity given to a police suggestion that defendant take a lie detector test and to his refusal to do so.
Although publicly there had been no apparent cloud on the domestic horizon of the Sheppard family prior to the murder, The Cleveland Press disclosed an extra*741marital romance which defendant had with a former laboratdry technician at the hospital with which he was affiliated.
The Cleveland Press in front page headlines, editorial and cartoons berated official slowness, demanded an inquest, condemned the “protection” of “the chief suspect,” demanded the entrance of the Cleveland Police Department into the investigation, and demanded the arrest and the “grilling” of defendant at police headquarters.
The inquest, the investigation by the Cleveland Police Homicide Unit, and defendant’s arrest and “grilling” followed hard on the heels of these demands.
Later, a representative of The Cleveland Press made the public boast that The Cleveland Press’ handling of the Sheppard story produced the trial.
Six weeks after the murder, on August 17, 1954, defendant was indicted for first degree murder by a Grand Jury after presentation of the results of the Cleveland Police Homicide Unit’s investigation.
The trial began October 17,1954.
The Ohio Supreme Court described the setting for the trial thus:
“Murder and mystery, society, sex and suspense were combined in this case in such a manner as to intrigue and captivate the public fancy to a degree perhaps unparalleled in recent annals. Throughout the preindictment investigation, the subsequent legal skirmishes and the nine-week trial, circulation-conscious editors catered to the insatiable interest of the American public in the bizarre. Special seating facilities 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 telecasters. In this atmosphere of a ‘Roman Holiday’ for the news media, Sam Sheppard stood trial for his life.” State v. Sheppard, 165 Ohio St. 293, 294, 135 N.E.2d 340, 342 (1956).
The trial verdict came after nine weeks of trial and five full days of jury deliberation. The prosecution had asked for and insisted on a verdict of first degree murder. The defense had asked for and insisted upon a verdict of “not guilty.” The jury returned a verdict of second degree murder.
THE TRIAL JUDGE AND THE PROSECUTOR
“It is the right of every citizen to be tried by judges as free, impartial and independent as the lot of humanity will admit.” 5
The trial judge’s son was a detective who worked in the Homicide Unit of the Cleveland Police Department which secured defendant’s indictment by the Grand Jury.6
As the trial opened on October 17, the trial judge was a candidate for re-election to the Common Pleas bench in an election scheduled for November 2,1954.®
The assistant prosecuting attorney in charge of the state’s case in defendant’s trial was likewise a candidate for election to the Common Pleas Court of Ohio— Ohio’s highest trial court.
The election occurred during the trial. Both the trial judge and the chief trial prosecutor were elected.
The trial judge and the trial prosecutor posed together for a newspaper picture congratulating each other on their mutual victories. The picture was printed in The Cleveland News on November 3, 1954. (See Appendix B).
As the trial resumed, defendant was being prosecuted by an elected judge, equal in all respects to the trial judge, except in the taking of the oath of office.
*742During the course of this trial, the trial judge’s picture appeared in 46 issues of the Cleveland newspapers — including poses by him at the bench, reading a law book in chambers, in his shirt sleeves, pausing for a TV camera interview with Fabian of Scotland Yard on the steps of the courthouse (See Appendix C), and holding a press conference on the fourth day of jury deliberation on the verdict to announce his intention to keep them deliberating (See Appendix D).
THE TRIAL JURY AND THE NEWS MEDIA
“The courtroom at these times is as sacrosanct as the cathedral, to be guarded against all raucous, impassioned, and foreign influence.” 7
News media interest in the case had increased as the trial date neared.
The names and addresses of all prospective jurors were published in the papers.
Extensive quotes from the voir dire examination of all prospective jurors were carried.
Every juror who ultimately was seated, except one, testified at voir dire to reading about the case in the Cleveland papers.
Every juror who was asked the specific question testified that a Cleveland newspaper was delivered daily to his or her home.
Seven of the twelve jurors who rendered the verdict were asked and did answer that they had one or more Cleveland papers delivered to their homes.
Five of the twelve jurors who rendered the verdict had The Cleveland Press delivered to their homes.
At the trial there were photographers inside the bar of Court immediately before the trial judge entered and immediately after the trial judge left the bench at any session where they desired to photograph the defendant, the jury, or the witnesses.
There was a table full of reporters and commentators within the bar of the court all through trial within one foot of the jury box.
All other seats in the courtroom, except those in the very last row, were assigned by the trial judge to news media representatives who were admitted on passes.
Half of the last row was assigned by the trial judge to the Sheppard family and half to Marilyn’s family.
On the first day after it was sworn in, the jury was called back and posed in the jury box, with the pictures appearing in The Cleveland Press (See Appendix E).
On the same afternoon a reporter for The Cleveland Press was chosen as a representative of the press to accompany the jury on a tour of the Sheppard home.
On this same tour The Cleveland Press had a helicopter photographing the jury at the murder scene and subsequently published the photograph thus taken.
During the trial the jury’s pictures, or those of one or more jurors, appeared in the newspapers 40 times (Cf. Appendix F).
These photographs included pictures of the jury, taken with the trial judge’s permission, at lunch in the jury room (See Appendix G).
They also included repeated arranged photographs of the jury taken during the five days of their deliberations on the verdict. For one of such, see Appendix H.
There were also photographs taken during the trial in the home of the alternate juror (and printed in The Cleveland Press) picturing her husband, her mother, and her children (See Appendix I).
THE TRIAL RULINGS
“The rules of court room conduct must be such as to remove it from the distractions and disturbances of the market place, and to maintain as nearly as possible an atmosphere *743conducive to profound and undisturbed deliberation. * * * A court in enforcing reasonable court room decorum is preserving the constitutional and unalienable right of a litigant to a fair trial, and, in preserving such right, the court does not interfere with the freedom of the press.” 8
As this trial opened the trial judge had ample warning from the pretrial events which we have recited as to the nature and aggressiveness of the publicity which might attend the trial.
The first matters before the Court on October 18, 1954, were defense motions for change of venue and continuance based on pretrial publicity and the trial arrangements for the news media. Defense counsel in reciting those arrangements pointed out “Even your Honor yourself, when you tried to mount the bench this morning, found your place occupied by a photographer taking pictures, and you had to remove him from the bench.”
The following from one of the first day colloquies between Court and counsel vividly portrays the setting of this trial:
“MR. CORRIGAN: If the Court please, I would like the record to show that inside the bar, as I stated before, is a table, and that that table extends over the width of the courtroom ; that this courtroom is 26 by 48 feet; that the table runs east and west, and that the west end of the table is within six inches of the seat of the thirteenth juror and approximately two feet from the end of the jury box; that there has been assigned to that table representatives of the following news agencies:
“The Akron Beacon Journal; two seats for the International News Service; three seats for the Cleveland Press; three seats for the Cleveland News; three seats for the Cleveland Plain Dealer; two seats for the Associated Press; and a seat for the New York Journal American.
“That outside the rail or back of the rail in this courtroom, there are four rows of benches for spectators. That the first row of the spectators’ benches have been assigned by the Court as follows, and are occupied by the following news services:
“Two seats to WGAR; two seats to WERE; one seat to WCUE; one to WTAM; two seats to WNBK; one seat to WDOK; one seat to WEWS; one seat to WHK; one to WXEL, all of these assignments being to representatives of broadcasting stations, radio stations or television stations, and one seat to the NEA, Newspaper Enterprise Association.
“That row two of the seats in the courtroom is assigned as follows:
“The Newark, New Jersey, News; the New York Post; the Pittsburgh Post Enterprise; two seats to the Cleveland News; two seats to the Cleveland Plain Dealer; two seats to the Cleveland Press, the Toledo Blade, the Pittsburgh Post-Gazette, the Lorain Journal, the Chicago Sun-Times, and the Scripps-Howard News Association.
“That the third row is assigned to WAKR; to the International News Service; the New York Journal American; Radio Station WSRS, Cleveland Heights; Detroit News; the New York News; two seats are assigned to Life Magazine; one to NBC and the St. Louis Post Dispatch.
*744“That the last — the only row of seats in the courtroom that is not assigned is the last row of the courtroom which accommodates about 14 people.
“We also wish to note in the record that there are in this courtroom three loud speakers and a microphone which stands in front of the witness chair.
“We incorporate all these things in the record before your Honor in the matter of our motion, both our motions, and we move at this time that the — I will change that.
“I state on information, on which I may be corrected if it is not so, that the seats that I have referred to were assigned by the Court, and that certain designations were put on the table and on the seats designating the locations for these different organizations and newspapers that I have mentioned, and that that assignment was made by the Court on Wednesday of last week.
“Am I correct in that, your Honor?
“THE COURT: I beg pardon. I didn’t get the last seat.
“MR. CORRIGAN: I say, I understand that these assignments whereby the courtroom is occupied as I have outlined was made by the Court on Wednesday of last week. Is that correct?
“THE COURT: Oh, no. That is not true. The Court will state as to what happened, also when you get through.
“MR. CORRIGAN: I noticed before we came to the courtroom that the three rows of seats back of the rail — there was posted on them a sign designating to whom they belonged, and that the signs designated these various radio stations and these various newspapers that I have mentioned, and that was done in advance of the trial. Is that correct?
“THE COURT: Yes, that’s correct. The Court will state now for the record, also, that these arrangements that counsel has now referred to have all been had after a great deal of consideration, applications for space, but finally with the approval of the Court. There is no question about that at all. The arrangements as to the table for members of the local press in particular, and the national news services, were made sometime in the middle — -perhaps Wednesday of last week, as counsel has indicated.
“Also, the next row, for the simple reason that those were set aside for local parties and the national news services, the second row in particular for the radio station representatives, and they selected the actual spaces within the — I mean the actual space for each individual within the total space, and they placed their tags on them so that each person will know where he sits.
“The others back of that were designated by the Court in the order of applications received for them.
“The back seat was kept for the members of the Sheppard family and the members of the late Mrs. Sheppard’s family, and any other members of the public who will be admitted.
“The Court did that for the simple reason that the space is so very limited in the courtroom, and there is a request for space for far more people than can be accommodated at all.
“The Court will not during the progress of this trial permit any standees in the courtroom, and we are going to conduct this trial with that kind of decorum which befits a trial of any criminal case.
“As to the public address system within the courtroom, that was installed at the request of the Court because it is difficult to hear, particularly witnesses, in the back of *745the courtroom, and it is very difficult at times for the jurors to hear witnesses. We are in a location where there is industry, light industry, it is true, a good deal of traffic, truck and other, and it is a place very difficult in which to hear at times.
“Let it be noted that this loud speaker — that these loud speakers are for the sole accommodation of the jurors, the members of the press and public in the rear of the courtroom, and especially for counsel at the trial table.
“There is no commmunication from inside the courtroom to any outside source, and all of these arrangements have been approved by the Court.
“Does that cover the-
“MR. CORRIGAN: Yes. If the Court please, I now move that the table be taken from inside the bar and removed from this courtroom; that the signs that have been placed on the three rows of spectators’ benches be removed, and, as I understand, your Honor has issued cards, admission by cards.
“THE COURT: That’s right.
“MR. CORRIGAN: And that the Court rescind the order whereby the only admission to this courtroom is by card issued by him. I so move.
“THE COURT: Overruled.
“MR. CORRIGAN: Exception.
“THE COURT: Now may we have the first juror?”
In addition to denying these motions the trial judge also denied a motion for continuance and took under advisement the motion for change of venue until an attempt to impanel a jury had been made.
On October 25 the trial judge denied defendant’s motion for change of venue, holding that the jury impaneled demonstrated that a fair trial could be had in Cleveland.
On that same date the trial judge sent the jurors who had been chosen to try this case home overnight — as he did for the subsequent weeks of this nine-week trial. (It should be pointed out that no motion to sequester the jury was ever made.)
On October 28, after impaneling twelve jurors, the trial judge finally denied the motion for change of venue.
On October 28 also, the trial judge gave the jury the basic “admonition” which he employed in this trial:
“Ladies and gentlemen of the jury, now that you have been sworn as jurors for the trial of this case and you are about to leave this courtroom, the Court is going to do what the law of this state calls for and requires that he shall do. I have already stated to you what the law prescribes, and I will state it again in order that there be no misunderstanding whatever about it.
“You are not to talk to anyone about this case or any matter in connection with it at any time during the progress of this trial. You are not to permit others to talk to you about it. You are not to remain anywhere where other people are talking about it among themselves, whether they have an interest in the case or not. You are not to discuss it among yourselves, either in your jury room or elsewhere.
“It is the duty of a person who has been selected as a juror to sit here patiently and wait until all the evidence has been received and the instructions of the Court have been received and you are in your jury room for deliberation and decision before you discuss the matter in any manner, and in the meantime, you are individually to keep your own counsel and not to form any opinion or judgment whatever until the final step when you are in your jury room for deliberation and decision of this case.
“Will you be good enough to observe that caution during the progress of the trial ? And I would sug*746gest to you, as I have already done so — I don’t know whether you were all here at that time or not — that you do not read the newspapers and you do not now listen to comments over the radio or by any other means until this case has been disposed of. Have somebody preserve those things for you until some future day when you will have lots of time to look them over.
“Now, without any formality at all, we will be adjourned until 9:15 tomorrow morning.”
(It should be noted that the portion of the admonition which dealt with talking about the case, or allowing anyone to talk to them, was phrased in direct and commanding language. That portion of the admonition pertaining to news media employed the words “I would suggest to you.”
Subsequent to October 28 a form of this “admonition” was given just four additional times up to the charge of the Court on December 17. On three of those occasions the word “suggest” was employed. Finally on December 3, the trial judge employed the somewhat more direct language, “Please do not read newspapers,” etc.)
Thus by the 28th of October, basic judicial rulings on four of the major measures available to the trial judge to protect due process had been made.
On November 2, 1954, the trial was adjourned for election day. The trial judge was re-elected overwhelmingly.
On November 3 the jury as finally constituted was sworn in. The subsequent events of that day were recorded in the following colloquy on the morning of November 4:
“MR. CORRIGAN: If the Court please, I desire to renew my motion for a continuance of this case, for a change of venue, for the withdrawal of a juror and for a mistrial.
“(To the reporter): Would you read what I dictated yesterday?
“ (Thereupon the following was read by the reporter, being taken at 11:00 o’clock a. m., Wednesday, November 3,1954:
“ ‘After the jury was discharged at the end of the morning session, at the request of the newspapers, the jury was brought back into the room and sat in the room for a matter of — how long, 15 minutes, 10 minutes?
“ ‘Mr. Clifford: 10 minutes, yes. “‘Mr. Corrigan: (Continuing) And were subjected to photography, photographing and television .cameras by at least 10 cameramen who mounted themselves on chairs, the judge’s bench and various parts of the room. This was all done out of the presence of defendant, Sam Sheppard.’)
“MR. CORRIGAN: I also want to introduce, as part of my motion, Defendant’s Exhibits 63, 64 and 65.
“(Defendant’s Exhibits 63, 64 and 65 were marked for identification.)
“MR. CORRIGAN: When the jury visited the premises yesterday under the order of the Court, there was at least 40 reporters there, a great number of cameramen, and the Cleveland Press hired a helicopter which continued to swing over the house and take pictures with a great deal of noise and racket.
“When the jury went through the house, it was accompanied by a reporter of the Cleveland Press, Mr. Brady.
“So I renew all my motions at this time.
“THE COURT: They all be overruled, and exceptions noted.”
(It should be noted that subsequent discussion developed that Brady’s accompaniment of the jury at the Sheppard home had been with the trial judge’s prior knowledge and with the consent of the defense, which had been given by one of defendant’s attorneys.)
Monday evening, November 22, the trial record shows still another objection *747to news media trial privileges, the rulings of the trial judge denying requested relief, and a cautioning of defendant’s brother concerning trial publicity.
"MR. CORRIGAN: I desire to renew my motion for a change of venue and a continuance of this case. Ever since we have started in this case, the halls and the rooms surrounding the Court House — or, surrounding the court room have been filled with reporters and photographers and television operators.
“The assignment room and the witness room have been occupied entirely by newspaper reporters, radio and television operators. On each morning the defendant has been brought into court at least 10 minutes before the beginning of the trial, and then for that period of time has been subjected by many photographers and television cameras, against his will, to be photographed.
“This morning — what is today?
“THE COURT: The 22nd.
“MR. CORRIGAN: November 22nd, there was erected in front of the Court House television cameras, WNBK. They were there when the jury was entering the Court House. The judge participated in being televised, as did Mr. Mahon and Mr. McArthur.
“We, therefore, renew the motions heretofore made, ask for the withdrawal of a juror and a continuance of the case.
“THE COURT: Of course, that will be overruled and exceptions noted.
“MR. CORRIGAN: Now, then, we request the court that the rights of the defendant be protected in this court room, and that he be not compelled to submit to photographing and the television camera as he has been every morning with the knowledge of the court.
“We request that the Sheriff be ordered not to bring him into court until such time as the jury is seated.
“THE COURT: Well, that is more than one request. The court will make his position clear.
"First, there has been no photographing in the court room except upon strict orders of the court that it was to be done before court hours in the morning or after court hours in the evening and with the consent of counsel for the defendant.
“MR. CORRIGAN: I have given no consent to that.
“THE COURT: And let the record show that counsel for the defendant and the defendant, himself, have been voluntarily photographed in the court room from time to time during the progress of this trial.
“MR. CORRIGAN: I haven’t been voluntarily photographed. Neither has the defendant. We have been compelled to be photographed. We can’t escape it.
“THE COURT: Oh, no, I don’t think that is so, Mr. Corrigan, and the court will say to you that the defendant is not to be photographed in the court room at all without your consent.
“MR. CORRIGAN: Well, if there has been any consent by anybody in this matter, the consent is withdrawn.
“THE COURT: All right. Now, as to the defendant being brought into the court room he is to be brought into the court room prior to the opening of the trial each day and just before the jury enters. That has been our effort since the beginning of this trial.
“Now, the Court wants to say a word. That he was told — he has not read anything about it at all — but he was informed that Dr. Steve Sheppard, who has been granted the privilege of remaining in the court room during the trial, has been trying the case in the newspapers and making rather uncomplimentary comments *748about the testimony of the witnesses for the State.
“Let it be now understood that if Dr. Steve Sheppard wishes to use the newspapers to try his case while we are trying it here, he will be barred from remaining in the court room during the progress of the trial if he is to be a witness in the case.
“The Court appreciates he cannot deny Steve Sheppard the right of free speech, but he can deny him the right of the privilege of being in the court room, if he wants to avail himself of that method during the progress of the trial.
“MR. CORRIGAN: The state-
ment of the Court about Steve Sheppard making uncomplimentary remarks about the testimony of witnesses is paralleled by the tremendous amount of publicity that is put in the Cleveland newspapers, especially headlines, since the beginning of this case, which has misrepresented entirely the testimony.”
These motions for change of venue, continuance, and mistrial were renewed repeatedly thereafter (including the close of prosecution proofs and the close of defense proofs) and were similarly denied.
DUE PROCESS VIOLATIONS
“The theory of our system is that the conclusions to be reached in a case will be induced only by evidence and argument in open court, and not by ar-y outside influence, whether of private talk or public print.” 9 Justice Oliver Wendell Holmes.
It is, of course, too late in legal history to doubt the power and the duty of a federal District Court to review on habeas corpus a state court conviction claimed to have been based upon violations of applicable federal constitutional commands. 28 U.S.C. § 2241; Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed. 2d 837 (1963); Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963).
It is likewise beyond challenge that the “due process” requirement of the Fourteenth Amendment10 mandates state criminal court observance of minimum federal constitutional standards such as trial on a charge “fairly made and fairly tried in a public tribunal” before “an impartial judge,” In re Oliver, 333 U.S. 257, 278, 68 S.Ct. 499, 510, 92 L.Ed. 682 (1948); Tumey v. State of Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927); In re Murchison, 349 U.S. 133, 75 S.Ct. 623, 99 L.Ed. 942 (1955); an “impartial jury” (if, as all do, the state elects a jury system), Irvin v. Dowd, supra, 366 U.S. at 721-722, 81 S.Ct. 1639; Rideau v. State of Louisiana, supra; and a “verdict * * * based upon the evidence developed at the trial,” Turner v. State of Louisiana, supra, 379 U.S. at 472, 85 S.Ct. at 549. See also Thompson v. City of Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654 (1960); Garner v. State of Louisiana, 368 U.S. 157, 82 S.Ct. 248, 7 L.Ed.2d 207 (1961).
In January of 1965 the United States Supreme Court said:
“The requirement that a jury’s verdict ‘must be based upon the evidence developed at the trial’ goes to the fundamental integrity of all that is embraced in the constitutional concept of trial by jury. [See footnote.] ‘The jury is an essential instrumentality — an appendage — of the court, the body ordained to pass upon guilt or innocence. Exercise of calm and informed judgment by its members is essential to proper enforcement of law.’ Sinclair v. United States, 279 U.S. 749, 765, 49 S.Ct. *749471, 476, 73 L.Ed. 938. Mr. Justice Holmes stated no more than a truism when he observed that ‘Any judge who has sat with juries knows that in spite of forms they are extremely likely to be impregnated by the environing atmosphere/ Frank v. Mangum, 237 U.S. 309, at 349, 35 S.Ct. 582, at 595, 59 L.Ed. 969 (dissenting opinion).
“In the constitutional sense, trial by jury in a criminal case necessarily implies at the very least that the ‘evidence developed’ against a defendant shall come from the witness stand in a public court room where there is full judicial protection of the defendant’s right of confrontation, of cross-examination, and of counsel.
* * * »
[Footnote] “The Sixth Amendment provides:
‘In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed * * *.’ (Emphasis supplied.)”
Turner v. State of Louisiana, supra, 379 U.S. at 472-473, 85 S.Ct. at 549.
If ever a jury could be said to be likely to have been “impregnated by the environing atmosphere,” it was surely this jury. And I do not see how this Court can safely conclude that the jury verdict was based only on “the ‘evidence developed’ against a defendant * * * from the witness stand.”
However applicable to this trial these standards may be, they are also generalizations. I would affirm the District Judge’s writ in this case on the basis of specific due process violations which occurred during trial and for all of which there were both preventive measures beforehand and remedies afterward available to, but unused by, the trial judge.
At trial the principal issues upon which testimony was presented to the jury were 1) motive, 2) credibility, and 3) reputation. On each issue the evidence presented and inferences argued by prosecution and defense were in sharp conflict. On each issue the jury could have believed either side.
But on these same crucial issues, as the trial progressed the news media supplemented the total record with material never heard in the courtroom. Much of this material, though highly prejudicial to defendant, was relevant and admissible if a witness could have been found who was prepared to testify to it under oath in the courtroom and face cross-examination. Some material, though equally prejudicial, was obviously inadmissible under any circumstances.
The United States District Judge listed 30 different instances of objectionable news media communications which he felt were prejudicial. We shall discuss only five of these.
1. On Friday, November 19, 1954, a police officer of the Cleveland Police Department gave testimony during this trial which tended to contradict some portions of defendant’s statements as made to the Cleveland Police.
On November 21, at 6:30 p. m., there was a radio broadcast which was heard in Cleveland over Station WHK in which Mr. Robert Considine made a comparison between defendant and Alger Hiss. Defendant’s confrontation by Officer Shottke was compared to Alger Hiss’ confrontation with Whittaker Chambers.
At the time in 1954, Alger Hiss’ conviction was fresh in the national consciousness.
Robert Considine was one of the national commentators occupying reserved seats in the courtroom during this trial.
On November 22, at the commencing of court, defendant’s counsel moved for a continuance of the trial, based on prejudice resulting from the Considine broadcast and asked the trial judge to question the jury as to whether they heard the broadcast.
The judge denied both motions, saying in part:
“Well, I don’t know, we can’t stop people in any event, listening to it. *750It is a matter of free speech, and the court can’t control everybody.
“MR. MAHON: I think that the court has instructed the jury that they are not to read about it or listen to the broadcasts. It was a general instruction that was given at the time the trial started.
“THE COURT: We are not going to harass the jury every morning.
“MR. CORRIGAN: I can’t help it, Judge. If you don’t, that’s all right with me. I make my exception.
“THE COURT: It is getting to the point where if we do it every morning, we are suspecting the jury.
I have confidence in this jury, and we must have confidence or the jury system is of no value whatever to anybody.”
Prior to dealing with this motion, the trial judge (as we have noted) had just denied a defense motion for continuance based upon a television program conducted on the steps of the courthouse the same morning, where among others, the prosecutor and the trial judge had appeared. The trial judge’s picture at this appearance was published in one of the Cleveland papers on the day these motions were heard and denied (See Appendix C).
2. On November 24 The Cleveland Press published a front page eight-column headline: “Sam Called a ‘Jekyll-Hyde’ by Marilyn, Cousin to Testify.” The first three paragraphs of the news story follow:
“Two days before her death, murdered Marilyn Reese Sheppard told friends that her accused husband, Dr. Samuel H. Sheppard, was ‘a Dr. Jekyll and Mr. Hyde.’
“The prosecution has a ‘bombshell witness’ on tap who will testify to Dr. Sam’s display of fiery temper-countering the defense claim that the defendant is a gentle physician with an even disposition.
“One of Mrs. Sheppard’s ‘Dr. Jekyll and Mr. Hyde’ statements was made to Bay Village Mayor J. Spencer Houk as recently as last June, The Press learned.” (See Appendix J).
No such testimony was ever introduced at the trial.
Five of the jurors had testified that they received The Cleveland Press at their homes.
On November 26 defense counsel renewed his motions for change of venue and continuance and a mistrial, basing them on the Jekyll-Hyde story in The Cleveland Press, which he introduced as an exhibit (See Appendix J).
Defense Counsel also based his motions on a Thanksgiving Day edition of The Cleveland Press which contained pictures and interviews in the home of Mrs. Mancini — one of the jurors (See Appendix I).
The trial judge, without reference to the Jekyll-Hyde matter, overruled the motions, noting that Mrs. Mancini had not been home at the time of the interview and picture taking. He made no inquiry of the jurors as to either matter.
3. On December 5, Walter Winchell, in a nationwide broadcast heard and seen in Cleveland through WXEL television and WJW radio, stated that a Carol Beasley, who was under arrest in New York for robbery, had stated that she was defendant’s mistress and had had a child by him.
On December 6 these facts were related to the trial judge who responded:
“THE COURT: Well, even, so, Mr. Corrigan, how are you ever going to prevent those things, in any event? I don’t justify them at all. I think it is outrageous, but in a sense, it is outrageous even if there were no trial here. The trial has nothing to do with it in the Court’s mind, as far as its outrage is concerned, but—
“MR. CORRIGAN: I don’t know what effect it had on the mind of ány of these jurors, and I can’t find out unless inquiry is made.
*751“THE COURT: How would you ever, in any jury, avoid that kind of a thing?”
At defense counsel’s insistence the judge did query the jury as to whether any had heard the Walter Winchell broadcast the previous night. Two jurors responded that they had.
Thereupon the judge asked, “Would that have any effect on your judgment ?” Each said, “No.”
The trial judge accepted this inadequate assurance.11 He did not reprove the two jurors for failing to heed his “suggestion” that they not listen to TV or radio. He did not order them or the rest of the jury not to do so again. He told the jury “to pay no attention whatever to that type of scavenging.” He then proceeded with the trial.
4. On December 9, 1954, defendant took the witness stand.
During part of his direct testimony he testified to oral promises and oral abuse by various members of the Cleveland Police Department Homicide Bureau who interviewed him extensively after his arrest.
On December 11, the Cleveland News, printed a front page story under the headline “ ‘Bare-Faced Liar,’ Kerr says of Sam.” The story quoted Captain David E. Kerr, head of the Homicide Bureau, to the same effect and adding:
“ ‘If ever a person was handled with kid gloves, it was Dr. Sam,’ said Kerr. ‘In 800 homicide cases we have not had a single voice raised against our methods, until this one from the Bay Village doctor.’ ” (See Appendix K).
Captain Kerr never appeared as a witness at the trial.
5. After the close of evidence and the arguments and the charge had been given, this jury was locked for its deliberations on verdict. These continued for five days and four nights. Subsequent to the rendering of the verdict it became known to the defense that the individual jurors had been permitted repeated phone calls to their homes. This knowledge was made the basis for a motion for new trial made by defense counsel.
The stipulation of facts agreed on by the parties before the United States District Judge gives the details on this issue:
“After arguments and charge were complete, the jury was directed to retire to deliberate its verdict. They were placed in charge of two bailiffs, Edgar Francis and Simon Steenstra. The deliberations lasted for more than four days, during which time the jury was kept (except when at court deliberating) in the Carter Hotel in downtown Cleveland. They, together with the bailiffs, occupied the entire seventh floor of the hotel. Bailiff Steenstra had made arrangements whereby the telephones in the rooms occupied by the jurors were disconnected so that no calls could be placed or received.
“The record does not indicate the times, the number of calls, or the identity of the juror-callers, but it is clear that both Steenstra and Francis permitted jurors to place outside calls from their (the bailiffs’) rooms between the time the jury took the case (December 17, 1954) and the time the verdict was rendered (December 21, 1954). The calls were placed by the jurors. No records were kept as to the numbers called, the parties called, talked with, or the calling jurors. The bailiffs sat next to the phone as the conversations took place, but could only hear that half of the conversation made by the juror; what was said to the jurors could not be heard by the bailiffs. The Court was never asked for permission to allow the jurors to make these calls, and no permission was ever given.” (Emphasis in original)
*752THE UNITED STATES DISTRICT JUDGE’S HOLDINGS
Concerning the first four of the events we have cited (and others) Judge Weinman said:
“[S]pedal note must be given to the attempt of the newspapers to influence the jury. It was startling to find photographs of the entire jury and of individual jurors (at times giving their home addresses) in no less than 40 issues of the Cleveland newspapers. The Court need not be naive, and it does not stretch its imagination to recognize that one of the purposes of photographing the jurors so often was to be assured that they would look for their photographs in the newspapers and thereby expose themselves to the prejudicial reporting.” Sheppard v. Maxwell, 231 F.Supp. 37, 63 (1964). “It is clear beyond doubt, because of the sheer volume of publicity which attended the trial, that the jury read and heard about the case through the news media.” (Footnote omitted.) Sheppard v. Maxwell, supra at 62.
Rule 52(a) of The Federal Rules of Civil Procedure states in part that “[fjindings of fact shall not be set aside unless clearly erroneous * * This rule is applicable to review of federal habeas corpus proceedings. United States ex rel. Crump v. Sain, 295 F.2d 699 (C.A. 7, 1961), cert. denied, 369 U.S. 830, 82 S.Ct. 845, 7 L.Ed.2d 794 (1962); Rushing v. Wilkinson, 272 F.2d 633 (C.A. 5, 1960). See also Cases Annotated at n. 57, 28 U.S.C.A. Rule 52.
In this trial all jurors, save one, freely admitted reading about the case before trial.
This jury was never locked up for the nine weeks of trial.
At least seven of the jurors took newspapers at their homes. Five of them took The Cleveland Press. The news media were given extraordinary prominence and privileges in the courtroom.
No admonition of an unequivocal nature concerning the jury not reading or listening to material about the trial was given until after a month of testimony.
The judge allowed himself and the jury all through the trial to be the constant subject of newspaper photography.
When queried on the one occasion when inquiry was allowed, two jurors testified to hearing the Walter Winchell broadcast.
They were not reproved nor were they or the other jurors told not to do it again.
The two newspaper stories were front page stories in newspapers of general circulation. The Cleveland Press “Jekyll-Hyde” story was topped by an eight-column, double banner front page headline.
The two broadcasts were by nationally prominent commentators broadcasting on prime time in Cleveland.
With these facts before us, I do not see how we can say that the District Judge’s holding is “clearly erroneous.”
The District Judge’s opinion in respect to these instances of prejudicial trial publicity is founded upon ample precedent.
Newspaper articles actually read by a juror or jurors which convey highly prejudicial information not admissible or admitted at trial have long been recognized as constituting such essential unfairness as to justify the setting aside of the verdict and the granting of a new trial. Mattox v. United States, supra; Krogmann v. United States, supra.
Where flagrantly prejudicial newspaper articles are prominently printed in newspapers of general circulation during a trial wherein the jury is not sequestered, there is a presumption that some jurors have seen them and that defendant has been prejudiced thereby. Harrison v. United States, 200 F. 662 (C.A.6, 1912); Marson v. United States, supra; Krogmann v. United States, supra; Briggs v. United States, 221 F.2d 636 (C.A.6, 1955).
Unless this presumption of prejudice is overborne by careful inquiry of the jurors and, in appropriate cases, by strong admonitions to disregard, a mo*753tion for new trial should be granted. Krogmann v. United States, supra; Marson v. United States, supra; Briggs v. United States, supra; United States v. Accardo, supra.
As we have seen, the admonitions in this trial were infrequent and equivocal when given. And minimal inquiry was limited to the single instance of the Winchell broadcast.
In concurring in Irvin v. Dowd, Mr. Justice Frankfurter said:
“Not a Term passes without this Court being importuned to review convictions, had in States throughout the country, in which substantial claims are made that a jury trial has been distorted because of inflammatory newspaper accounts — too often, as in this case, with the prosecutor’s collaboration — exerting pressures upon potential jurors before trial and even during the course of trial, thereby making it extremely difficult, if not impossible, to secure a jury capable of taking in, free of prepossessions, evidence submitted in open court. * * * For one reason or another this Court does not undertake to review all such envenomed state prosecutions. But, again and again, such disregard of fundamental fairness is so flagrant that the Court is compelled, as it was only a week ago, to reverse a conviction in which prejudicial newspaper intrusion has poisoned the outcome. Janko v. United States, 366 U.S. 716, 81 S.Ct. 1662, 6 L.Ed.2d 846; see, e. g., Marshall v. United States, 360 U.S. 310, 79 S.Ct. 1171, 3 L.Ed.2d 1250. See also Stroble v. State of California, 343 U.S. 181, 198, 72 S.Ct. 599, 607, 96 L.Ed. 872 (dissenting opinion); Shepherd v. State of Florida, 341 U.S. 50, 71 S.Ct. 549, 95 L.Ed. 740 (concurring opinion).” Irvin v. Dowd, supra, 366 U.S. at 730, 81 S.Ct. at 1646 (concurring opinion.)
In my opinion the “disregard of fundamental fairness is so flagrant” in this case as to require the District Judge’s writ.
On the fifth issue, pertaining to juror phone calls during jury deliberations, Judge Weinman found;
“This Court finds prejudicial error because the right to a fair and impartial trial as guaranteed by the due process clause of the Fourteenth Amendment includes the right to have a jury which is not permitted, after it begins its deliberations, to have unmonitored telephone conversations with third persons. As stated quite simply in Mattox v. United States, 146 U.S. 140, 150, 13 S.Ct. 50, 53, 36 L.Ed. 917 (1892):
“ ‘Private communications, possibly prejudicial, between jurors and third persons, or witnesses, or the officer in charge, are absolutely forbidden, and invalidate the verdict, at least until their harmlessness is made to appear.’ [Emphasis added].
“There is nothing in the record to show the harmlessness of that part of the telephone conversations which the bailiffs could not hear. Accordingly, petitioner’s constitutional rights were violated.” Sheppard v. Maxwell, supra, 231 F.Supp, at 71.
Here, too, the District Judge has sound precedent in support.
The federal courts (including the United States Supreme Court and this Court) have created and given effect to the presumption that any unauthorized communication with a juror is prejudicial absent effective rebuttal. Mattox v. United States, supra; Stone v. United States, supra; Little v. United States, supra; Wheaton v. United States, supra; Johnson v. United States, 207 F.2d 314 (C.A. 5, 1953), cert. denied, 347 U.S. 938, 74 S.Ct. 632, 98 L.Ed. 1087 (1953); Ryan v. United States, 89 U.S.App.D.C. 328, 191 F.2d 779 (1951), cert. denied, Duncan v. United States, 342 U.S. 928, 72 S.Ct. 368, 96 L.Ed. 691 (1951).
The presumption is even stronger when there is communication with a member or *754members of the jury after charge and during jury deliberation concerning the verdict. Mattox v. United States, supra; Wheaton v. United States, supra; Little v. United States, supra.
In 1892 Chief Justice Fuller, speaking for a unanimous Court, said:
“It is vital in capital cases that the jury should pass upon the case free from external causes tending to disturb the exercise of deliberate and unbiased judgment. Nor can any ground of suspicion that the administration of justice has been interfered with be tolerated. Hence, the separation of the jury in such a way as to expose them to tampering may be reason for a new trial, variously held as absolute; or prima facie, and subject to rebuttal by the prosecution; or contingent on proof indicating that a tampering really took place. Whart.Crim.Pl. §§ 821, 823, 824, and cases cited.
“Private communications, possibly prejudicial, between jurors and third persons, or witnesses, or the officer in charge, are absolutely forbidden, and invalidate the verdict, at least unless their harmlessness is made to appear.” Mattox v. United States, supra, 146 U.S. at 150, 13 S.Ct. at 53.
There is absolutely no way by which we can know that these phone calls — totally unmonitored as far as the outside party is concerned — were harmless. I believe that Judge Weinman was correct in relying on this ground also.
THE OPINION OF THE COURT
For the reasons stated, I find myself in disagreement with the Court concerning the fundamental issues of this appeal.
My brothers have, however, written a careful and scholarly opinion. I concur with the result reached in three out of the five of the issues discussed therein.
The federal courts, of course, do not review claimed federal constitutional violations until state remedies have been exhausted. Thorough as have been petitioner’s efforts in this regard, it cannot be clearly established that claimed violations of defendant’s Fifth Amendment rights (through lie detector testimony) have been presented to the Ohio Supreme Court. Nor have the belated witness statements as to the trial judge’s comments on defendant’s guilt ever been considered by that body.
I also agree with my brothers that the clamorous and frequently abusive publicity prior to trial, plus the trial judge’s denial of change of venue, probably did not, of themselves, rise to the level of constitutional violations.
As Judge O’Sullivan notes, the number of jurors with fixed opinions about this case as of the time the jury was seated does not show the same extent of deep and abiding community prejudice demonstrated in Irvin v. Dowd, supra, and Rideau v. State of Louisiana, supra.
Of some weight in the consideration of the pretrial publicity issue is a concern for that particular declaration of rights which our forefathers chose to put first among the amendments. If the exercise of freedom of speech or press in reporting or exposing crime could serve to immunize a person charged with crime from prosecution and trial, shortly the demands for limitation of this historic right would become extremely pressing. The smarter criminal would know how to find a means to immunize himself from trial by securing publication of a well-timed if adverse story. The power of the press to aid in maintaining the integrity of government by exposing corruption or special privilege would be largely nullified.
In one of the relatively few cases where the United States Supreme Court has set aside State Court convictions because of pretrial publicity, Mr. Justice Clark noted:
“It is not required, however, that the jurors be totally ignorant of the facts and issues involved. In these days of swift, widespread and diverse methods of communication, an important case can be expected to arouse the interest of the public in the vicinity, and scarcely any of *755those best qualified to serve as jurors will not have formed some impression or opinion as to the merits of the case. This is particularly true in criminal cases. To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror’s impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court. Spies v. People of State of Illinois, 123 U.S. 131, 8 S.Ct. 22, 31 L.Ed. 80; Holt v. United States, 218 U.S. 245, 31 S.Ct. 2, 54 L.Ed. 1021; Reynolds v. United States, supra. [98 U.S. 145, 25 L.Ed. 244].” Irvin v. Dowd, supra, 366 U.S. at 722-723, 81 S.Ct. at 1642.
To return to the basic problems of this appeal, it is clear that the District Judge considered the claimed violations of due process against the background of the trial itself and cumulatively in relation to each other. His opinion notes:
“Any one of the above mentioned factors, i. e., the insidious, prejudicial newspaper reporting, the refusal of the trial judge to question jurors regarding an alleged prejudicial radio broadcast and the carnival atmosphere which continued throughout the trial, would be sufficient to compel the conclusion that petitioner’s constitutional rights were violated. But when they are cumulated, this Court cannot, unless it were to stretch its imagination to a point of fantasy, say the petitioner had a fair trial in view of the publicity during trial.” Sheppard v. Maxwell, supra, 231 F.Supp. at 63.
Against this view, I read the Court’s opinion as holding that no one of the complaints of contacts or communications with this jury was sufficient standing alone to represent invasion of petitioner’s due process rights.
If we were to assume that the five instances of unauthorized communications to this jury, considered as entirely isolated incidents, did not rise to constitutional magnitude,12 we still could not by such dissection of this trial ignore our constitutional duty to look at the trial as a whole and to determine from the total record whether the Fourteenth Amendment command of due process had been violated.
These five events which occurred during this trial, when considered cumulatively and against the trial background related at the outset, leave no doubt of the validity of the District Judge’s holding that “petitioner was not afforded a fair trial as required by the due process clause of the Fourteenth Amendment.”
Any other view would deny common sense as effectively as saying that since no single one of the 35 wounds was necessarily fatal, Marilyn Sheppard was not murdered.
Patently there can be judicial error which against the background of one case might be harmless, but which against the total circumstances of another case might violate substantial rights. United States v. McMaster and Wolff, 343 F.2d 176. (C.A. 6, 1965) Decided March 25, 1965. Cf. Krulewitch v. United States, 336 U.S. 440, 69 S.Ct. 716, 93 L.Ed. 790 (1949); Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946).
The background facts of a case wherein due process violations are claimed are never irrelevant. Irvin v. Dowd, supra; Rideau v. State of Louisiana, supra.
In Marshall v. United States, 360 U.S. 310, 79 S.Ct. 1171, 3 L.Ed.2d 1250 (1959), the United States Supreme Court dealt with a claim of prejudice because inadmissible material from news accounts had reached the jury during trial. Noting the large discretion that the trial judge had in ruling on the issue of prejudice, the Court nonetheless reversed for new trial stating that “each case must turn on its special facts.”
*756The “special facts” of this case compel my vote for affirmance. They come as a distinct shock to the conscience of this former state court judge.
As we have noted, Judge Weinman’s duty to review petitioner’s federal constitutional claims concerning his state court trial cannot be disputed. Fay v. Noia, supra; Townsend v. Sain, supra; Gideon v. Wainwright, supra.
I read such cases as Turner v. State of Louisiana, supra; Rideau v. State of Louisiana, supra; Irvin v. Dowd, supra, as applicable a fortiori to the fact situation heretofore outlined and as authority for issuance of the writ, unless a new trial is ordered.
I would affirm.
APPENDIX A
PRETRIAL ORDER AGREED STATEMENT OF FACTS
“Petitioner, Samuel H. Sheppard, was in July, 1954, a resident of Bay Village, Ohio, a suburb on the west side of Cleveland. He was a doctor of osteopathic medicine, specializing in Surgery, and a member of the staff of the Bay View Hospital. He was thirty years of age and was married to Marilyn Reese Sheppard, also thirty. They had been mar-rid for nine years and had one son, aged seven. Petitioner and his family lived in a house on the shore of Lake Erie, which house was owned by Marilyn. Petitioner was associated in the practice of medicine with his father and two older brothers, all doctors. He was in comfortable financial circumstances.
“On the night of July 3, 1954, petitioner and his wife entertained friends, Don and Nancy Ahearn, in their home. The Ahearns left at approximately 12:30 a. m., July 4, 1954; Marilyn saw them to the door, for petitioner was or appeared to be asleep on a couch in the living room. The evening had been a congenial one, and the Ahearns observed no indications of hostility between petitioner and his wife (who was pregnant) at any time during the evening. In fact, there were overt manifestations of affection between them.
“Shortly before 6:00 a. m. a telephone call was received from petitioner by J. Spencer Houk, mayor of Bay Village and a friend of petitioner. Houk lived two houses distant from the home of petitioner. Houk heard petitioner say:
“ ‘My God, Spence, get over here
quick, I think they have killed
Marilyn.’
Houk dressed and with his wife, Esther, drove within a short time the few hundred feet to petitioner’s home. Upon arrival the Houks found petitioner on the first floor of the house. His face showed some injury, and he complained of pain in his neck. Esther Houk went up to the bedroom, at the suggestion of petitioner, to check on the condition of Marilyn Sheppard. She found Marilyn lying in a pool of blood on the bed. She was dead. The room was covered with splattered blood. It was determined that she had suffered some thirty-five blows about the head by some blunt instrument, causing death. There was some conflict as to how long she had been dead when discovered by the Houks.
“The story given by petitioner to police and at the trial, was substantially as follows: As he was sleeping on the couch, he was awakened by a noise coming from the second floor. He thought he heard his name called. He went up the stairs, which was dimly lit by a light in the hall. He recognized only a white ‘form’ standing next to the bed where his wife slept. He grappled with the form, and was struck on the back of the neck which rendered him unconscious. Before losing consciousness petitioner heard loud moans, as if from someone injured. When petitiner recovered consciousness, he examined his wife, found or thought that she was dead, determined that his son (in an adjacent room) had not been harmed, and then, hearing noise of some sort on the first floor, ran down. He saw a form running out the door of the house nearest to Lake Erie, and pursued it to the shore. There he struggled again, and again lost consciousness. When he came to, he went back to the house, re-examined his wife, and called Mayor Houk. *757Petitioner was unable to establish (1) the number of people in the bedroom at the time of the first encounter or the time of said encounter; (2) the duration of his unconsciousness on either occasion, or (3) the sex or identity of any of the single or several assailants he encountered. He stated that his perceptions had been vague because he was asleep at the outset of the chain of events, and unconscious twice as it progressed.
“In the course of interrogations by police and the County Coroner, petitioner was asked if he had had sexual relations with one Susan Hayes, an ex-employee of the hospital, in March, 1954, in Los Angeles. Petitioner denied this, but later admitted it when confronted with her statement of the affair. The state contended that Miss Hayes was the motive for a premeditated murder, but the jury returned a verdict of murder in the second degree.
“The murder of Marilyn Sheppard captivated the attention of news media in an unprecedented manner. Editorials on the first page of a leading Cleveland newspaper, and news media generally, set up a hue and cry for a solution to the crime. An inquest was demanded and held, and petitioner’s arrest was suggested most strongly by at least one leading newspaper. On July 30, 1954, petitioner was arrested; he was admitted to bail, and indicted a few days later, on August 17, 1954. He has been in custody ever since.
“The trial began on October 18, 1954, and on December 17 of the same year the cause was submitted to a jury in the Court of Common Pleas of Cuyahoga County. On December 21st the verdict of guilty of murder in the second degree was returned, and petitioner was sentenced to life imprisonment in the state penitentiary at Columbus, Ohio. * * *
“The details of the trial, which fill over seven thousand pages in the bill of exceptions, are not recited here; it is the understanding of counsel for both sides that it was not the purpose of this history to describe the voluminous evidence.
“On January 3, 1955, the trial court overruled a motion for new trial which had been based on numerous assignments of error occurring during trial and deliberation. * * *
“On May 9, 1955, the trial court denied a supplemental motion for new trial on ground of newly discovered evidence and based upon the affidavit of Paul Leland Kirk, a criminologist, who claimed to have demonstrated that blood tests made in the murder room proved the existence of blood which did not come from the defendant or the deceased. This evidence was not obtained until after the verdict had been returned.
“On July 20, 1955,1 the Court of Appeals of Cuyahoga County affirmed the conviction of petitioner; and on July 25, 1955 the same Court affirmed the denial of the second motion for new trial. * *
• “On May 31, 1956, the Ohio Supreme Court affirmed the action of the Court of Appeals as to the case in chief, but did not discuss or pass upon the alleged newly discovered evidence. Two Judges dissented, expressing the view that Sheppard should be accorded a new trial. * *
“On November 14, 1956, the Supreme Court of the United States denied a petition for certiorari; application for rehearing was denied on December 19, 1956. * * *
“On September 5, 1960, Chief Justice Weygandt denied an application for a writ of habeas corpus in the Ohio Supreme Court; the petition therefor was dismissed on May 5, 1961.
“On April 11th, 1963, petitioner filed a petition for a writ of habeas corpus in this Court, which is the action giving rise to this order.
“Petitioner, Samuel H. Sheppard, has at all times maintained that he was not guilty of the murder of his wife, and that he knew no more about said death than he told at the trial.”
*758
*759
*760
*761
*762
*763
*764
*765
*766
*767
. Mattox v. United States, 146 U.S. 140, 13 S.Ct. 50, 36 L.Ed. 917 (1892).
. Irvin v. Dowd, 366 U.S. 717, 722-723, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961).
. “35. Improper Putliciming of Gourt Proceedings.*
“Proceedings in court should be conducted with fitting dignity and decorum. The taking of photographs in the court room, during sessions of the court or recesses between sessions, and the broadcasting or televising of court proceedings detract from the essential dignity of proceedings, distract participants and witnesses in giving testimony, and create misconceptions with respect thereto in the mind of the public and should not be permitted.
“Provided that this restriction shall not apply to the broadcasting or televising, under the supervision of the court, of such portions of naturalization proceedings (other than the interrogation of applicants) as are designed and carried out exclusively as a ceremony for the purpose of publicly demonstrating in an impressive manner the essential dignity and the serious nature of naturalization.”
Adopted September 30, 1937; amended September 15, 1952, and February 5, 1963.
. This summary is drawn from a) the stipulated statement of facts presented to the United States District Judge and printed herewith as Appendix A. b) The transcript of the original trial (12 volumes and 7,099 pages) which was stipulated as an exhibit before the District Judge, c) Five scrapbooks of newspaper clippings which were likewise stipulated to as an exhibit before the District Judge.
. Art. XXIX, Massachusetts Declaration of Rights (1780), 10 Anno. Laws of Massachusetts § 30, p. 32.
. Neither of these facts are relied upon by petitioner as constitutional violations. They plainly were known to petitioner’s trial counsel. The first was discussed with the trial judge whose assurances of impartiality were accepted.
. Justice William O. Douglas, Public Trial and the Free Press, 46 A.B.A.J. 840, 844 (Aug. 1960.
. State v. Clifford, 97 Ohio App. 1, 5-6, 118 N.E.2d 853, 856 (1954), aff’d., 162 Ohio St. 370, 123 N.E.2d 8 (1954), cert. denied, 349 U.S. 929, 75 S.Ct. 771, 99 L.Ed. 1259 (1955). Ohio Appellate decision, April 14, 1954. Ohio Supreme Court decision, December 15, 1954. In these cases the Ohio Appellate Court upheld contempt convictions against three employees of The Cleveland Press for violating Judge Silbert’s order against “picture taking while the court was in session.”
Judge Silbert was a member of the same Common Pleas bench as the trial judge in the instant ease.
. Patterson v. State of Colorado, 205 U.S. 454, 462, 27 S.Ct. 556, 558, 51 L.Ed. 879 (1907).
. The Fourteenth Amendment to the United States Constitution provides in applicable part: “ * * * nor shall any State deprive any person of life, liberty, or property without due process of law; * * *_»
. Cf. Coppedge v. United States, supra.
. As to the instances of communications numbered 1, 2, 3, and 5 herein, there is little reason to accept such an assumption.
. “It is a minor point, but the Court notes that several of the dates of decisions are incorrectly stated.”