Sheppard v. Maxwell (C.A. 6 (Ohio) 1965) [Reversal of Writ of Habeas Corpus]

The habeas corpus proceeding here involved was commenced in the United States District Court April 11, 1963, charging, as amended, some 23 separate constitutional defects in Sheppard\u27s conviction. Some of these had already been found without merit by the Ohio courts and others were new. Indicating his view that there were probably other constitutional imperfections in Dr. Sheppard\u27s trial, the District Judge bottomed his decision on four separate grounds: (1) newspaper publicity before and during the trial denied Sheppard a fair trial, (2) the trial judge should have disqualified himself, (3) evidence that Sheppard had refused to take a lie detector test and that another witness had taken such a test was improperly brought before the jury, and (4) the bailiffs in charge of the jury after the cause was submitted to it improperly allowed individual jurors to make telephone calls to their families. Grounds 1 and 4 were passed upon in the Ohio Court of Appeals and Supreme Court and were found to be without merit. They were also relied upon in the application to the United States Supreme Court for certiorari, which was supported by the same volumes of newspaper publicity as are before us. Ground 2 and part of ground 3 were first asserted in the instant petition for habeas corpus. The Court discussed the merits under the five headings of Publicity, Disqualification of Judge Blythin, Lie Detector Evidence, Communications with Jurors, and Other Questions. 1) Holding on Publicity: 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. 2) Holding on Judge Blythin: As realists we know that those who seek reelection to judicial office hope that their conduct will find public approval, but we do not think that judicial misconduct would be more attractive to the electorate than conduct marked by the integrity which we as judges like to believe is possessed by elected judges as well as those who have the security of tenure during \u27good behavior.\u27 Nor are we prepared to presume that any judge is so far enamored of his position as to betray its responsibilities, no matter what he thinks would most please the electorate. Additionally, it is not inappropriate to note that much of the publicity complained of, and the actual taking of testimony at Dr. Sheppard\u27s trial, occurred after the election had been held. For like reasons, we must reject Dr. Sheppard\u27s repetition in this Court of his broadside charge that the elective judges of Ohio were so biased and prejudiced against him that he could not expect fair adjudication of his case in state courts. 3) Holding on Lie Detector Evidence: At this distance, we cannot say that the decision of Dr. Sheppard\u27s veteran counsel to withhold objection to the lie detector evidence prejudiced their client. It goes without saying that Dr. Sheppard\u27s conviction does not prove such. 4) Holding on Communications with Jurors (misconduct of bailiffs in allowing phone calls): Here there is no pretense at showing that prejudicial statements were made to the jurors by their children or spouses. In view of the absence of any attempt to demonstrate or even claim such violations here, we are satisfied that the Ohio Supreme Court correctly disposed of this issue, and that in any event the occurrence does not present a denial of constitutional due process. 5) Holding on Other Questions: Each of the \u27errors\u27 discussed above was found by the District Judge to constitute a deprivation of due process, but he concluded his opinion with the observation that when taken together they reduced the trial to a \u27mockery of justice.\u27 Without further discussion, we are unable to attribute to a combination of these several claims a constitutional potency they lack individually. We have rejected the claims based on publicity, alleged bias of the trial judge, and communications with the jurors because no showing has been made that anything improper in fact occurred; we are no more willing to presume infirmity when these claims and the matter of the lie detector evidence are listed together than when they are considered separately