Brief Fact Summary. An individual was accused of killing his pregnant wife. The media coverage during the trial was overwhelming, to the point of being prejudicial to the defendant.
Synopsis of Rule of Law. “[W]here there is a reasonable likelihood that prejudicial news prior to trial will prevent a fair trial, the judge should continue the case until the threat abates, or transfer it to another county not so permeated with publicity.”
Facts. On “the day of Marilyn Sheppard’s funeral, a newspaper story appeared in which Assistant County Attorney Mahon – later the chief prosecutor of [the Petitioner] – sharply criticized the refusal of the Sheppard family to permit his immediate questioning. From there on headline stories repeatedly stressed [the Petitioner’s] lack of cooperation with the police and other officials.” Various other stories were published detailing the Petitioner’s lack of cooperation.
“Under the headline ‘Testify Now In Death, Bay Doctor Is Ordered,’ one story described a visit by Coroner Gerber and four police officers to the hospital on July 8. When [the Petitioner] insisted that his lawyer be present, the Coroner wrote out a subpoena and served it on him. [The Petitioner] then agreed to submit to questioning without counsel and the subpoena was torn up. The officers questioned him for several hours. On July 9, [the Petitioner], at the request of the Coroner, re-enacted the tragedy at his home before the Coroner, police officers, and a group of newsmen, who apparently were invited by the Coroner. The home was locked so that [the Petitioner] was obliged to wait outside until the Coroner arrived. [the Petitioner’s] performance was reported in detail by the news media along with photographs.”
“Front-page newspaper headlines announced on the same day that ‘Doctor Balks At Lie Test; Retells Story.’ A column opposite that story contained an ‘exclusive’ interview with [the Petitioner] headlined: ‘Loved My Wife, She Loved Me, Sheppard Tells News Reporter.’ ” The next day, another headline story disclosed that [the Petitioner] had ‘again late yesterday refused to take a lie detector test’ and quoted an Assistant County Attorney as saying that “at the end of a nine-hour questioning of [the Petitioner], I felt he was now ruling [a test] out completely.” But subsequent newspaper articles reported that the Coroner was still pushing [the Petitioner] for a lie detector test. More stories appeared when [the Petitioner] would not allow authorities to inject him with ‘truth serum.’ ”
“On the 20th, the ‘editorial artillery’ opened fire with a front-page charge that somebody is ‘getting away with murder.’ The editorial attributed the ineptness of the investigation to ‘friendships, relationships, hired lawyers, a husband who ought to have been subjected instantly to the same third-degree to which any other person under similar circumstances is subjected . . . .’ The following day, July 21, another page-one editorial was headed: ‘Why No Inquest? Do It Now, Dr. Gerber.’ The Coroner called an inquest the same day and subpoenaed [the Petitioner].”
“[The inquest] was staged the next day in a school gymnasium; the Coroner presided with the County Prosecutor as his advisor and two detectives as bailiffs. In the front of the room was a long table occupied by reporters, television and radio personnel, and broadcasting equipment. The hearing was broadcast with live microphones placed at the Coroner’s seat and the witness stand. A swarm of reporters and photographers attended. [The Petitioner] was brought into the room by police who searched him in full view of several hundred spectators. [The Petitioner’s] counsel were present during the three-day inquest but were not permitted to participate. When [the Petitioner’s] chief counsel attempted to place some documents in the record, he was forcibly ejected from the room by the Coroner, who received cheers, hugs, and kisses from ladies in the audience. [The Petitioner] was questioned for five and one-half hours about his actions on the night of the murder, his married life, and a love affair with Susan Hayes. At the end of the hearing the Coroner announced that he ‘could’ order [the Petitioner] held for the grand jury, but did not do so.”
“During the inquest on July 26, a headline in large type stated: “Kerr [Captain of the Cleveland Police] Urges Sheppard’s Arrest.” In the story, [a] [d]etective ‘disclosed that scientific tests at the [the Petitioner’s] home have definitely established that the killer washed off a trail of blood from the murder bedroom to the downstairs section,’ a circumstance casting doubt on [the Petitioner’s] accounts of the murder. No such evidence was produced at trial. The newspapers also delved into [the Petitioner’s] personal life. Articles stressed his extramarital love affairs as a motive for the crime. The newspapers portrayed [the Petitioner] as a Lothario, fully explored his relationship with Susan Hayes, and named a number of other women who were allegedly involved with him. The testimony at trial never showed that [the Petitioner] had any illicit relationships besides the one with Susan Hayes.”
“On July 28, an editorial entitled ‘Why Don’t Police Quiz Top Suspect’ demanded that [the Petitioner] be taken to police headquarters. It described him in the following language: ‘Now proved under oath to be a liar, still free to go about his business, shielded by his family, protected by a smart lawyer who has made monkeys of the police and authorities, carrying a gun part of the time, left free to do whatever he pleases . . . .’ ”
“A front-page editorial on July 30 asked: ‘Why Isn’t Sam Sheppard in Jail?’ It was later titled ‘Quit Stalling – Bring Him In.’ After calling [the Petitioner] ‘the most unusual murder suspect ever seen around these parts’ the article said that ‘[e]xcept for some superficial questioning during Coroner Sam Gerber’s inquest he has been scot-free of any official grilling . . . .’ It asserted that he was ‘surrounded by an iron curtain of protection [and] concealment.’ ”
On July 30 at 10:00pm, the Petitioner was arrested. When he was arrested and brought to the station various reporters, photographers and newscasters were waiting for him. The publicity increased until his indictment on August 17.
The trial was two weeks before the November general election. Both the chief prosecutor and the judge in the case were judge candidates. The names of seventy five prospective jurors were published in three local papers and many people contacted them. When the trial began, there were about twenty representatives of the media. In short, there was a very large media presence.
“On the sidewalk and steps in front of the courthouse, television and newsreel cameras were occasionally used to take motion pictures of the participants in the trial, including the jury and the judge. Indeed, one television broadcast carried a staged interview of the judge as he entered the courthouse. In the corridors outside the courtroom there was a host of photographers and television personnel with flash cameras, portable lights and motion picture cameras. This group photographed the prospective jurors during selection of the jury. After the trial opened, the witnesses, counsel, and jurors were photographed and televised whenever they entered or left the courtroom. [The Petitioner] was brought to the courtroom about 10 minutes before each session began; he was surrounded by reporters and extensively photographed for the newspapers and television. A rule of court prohibited picture-taking in the courtroom during the actual sessions of the court, but no restraints were put on photographers during recesses, which were taken once each morning and afternoon, with a longer period for lunch.”
There was virtually no time for the Petitioner and his attorney to speak confidentially. Also, the only time counsel could speak to the judge during the trial without the jury hearing was in the judge’s chambers. The trial transcript was published on a daily basis in various newspapers and pictures of all parties involved were also published and put on the television. The jurors were also constantly exposed to the news media, and all, but one juror, read about the case in the paper. The court then criticized ten specific aspects of the trial.
Issue. “[W]hether [the Petitioner] was deprived of a fair trial in his state conviction for the second-degree murder of his wife because of the trial judge’s failure to protect Sheppard sufficiently from the massive, pervasive and prejudicial publicity that attended his prosecution.”
Held. The majority recognized that “[l]egal trials are not like elections, to be won through the use of the meeting-hall, the radio, and the newspaper.” Also, “the [Supreme] Court has insisted that no one be punished for a crime without ‘a charge fairly made and fairly tried in a public tribunal free of prejudice, passion, excitement, and tyrannical power.’ Moreover, “[f]reedom of discussion should be given the widest range compatible with the essential requirement of the fair and orderly administration of justice.” However, “it must not be allowed to divert the trial from the ‘very purpose of a court system . . . to adjudicate controversies, both criminal and civil, in the calmness and solemnity of the courtroom according to legal procedures.’ ” One of the requirements is that “the jury’s verdict be based on evidence received in open court, not from outside sources.”