The opinion of the court was delivered by: Robson, District Judge.
MEMORANDUM AND ORDER ON DEFENDANTS' MOTION TO WAIVE TRIAL
The defendants have moved this court to waive a trial by
jury. They allege that because of the massive pre-trial
publicity, a fair and impartial jury could not be selected in
this district. The court concludes that this motion should be
denied for the reasons set out below.
This court has studied defendants' briefs and exhibits.
There is no question that at the time the crime was committed,
the news media covered the story massively. Since the
defendants' arraignments, however, there has been
comparatively little publicity. There has been, as is the case
with any crime with elements of violence, coverage in the
so-called "pulp" magazines. See Defendants' Exhibits 6, 7 and
8; and Corbett v. Patterson, 272 F. Supp. 602 (D.Colo. 1967). In
the media of more general circulation, such as newspapers,
television, radio, etc., the publicity since arraignment has
been minimal.*fn* Most of the publicity occurred between
October 27 and November 5, 1967, with only four small items
appearing after November 13, 1967. See Defendants' Exhibits
170, 172, 174 and 182. The news media are to be commended for
their restraint after this period.
The defendants urge that the people of this district have
been "saturated" with the details of the crime and, therefore,
could not give the defendants a fair and impartial trial by
jury. It is clear to this court that although there may be
circumstances where a waiver of this type should be allowed
even over the objection of the government, this case does not
present such a situation. Cf. dicta in Singer v. United
States, 380 U.S. 24, 85 S.Ct. 783, 13 L.Ed.2d 630 (1965), and
United States v. Kramer, 355 F.2d 891 (7th Cir. 1966). In
Singer, as the defendants candidly admit, the court made it
clear that there is no unqualified right to waive a trial by
jury. The government's consent was necessary, but, the court
continued, this consent should not be withheld "for an ignoble
purpose." Singer v. United States, supra, 380 U.S. at 37, 85
S.Ct. 783. There is no suggestion here that the government has
such an "ignoble purpose" in opposing this motion. Also see
United States v. Igoe, 331 F.2d 766 (7th Cir. 1964).
Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d
600 (1966), offers this court many guidelines in handling
cases where a question of prejudicial pre-trial publicity has
been raised. The facts of Sheppard, however, show that Sam
Sheppard was exposed to publicity far in excess to that which
the defendants here have experienced. Sam Sheppard was shown on
television while he was being interrogated; he was the subject
of many unfounded rumors which were given banner headlines in
the daily press from the time of the crime to the end of the
trial; and his trial degenerated into a public spectacle
because the press almost completely controlled the courtroom.
The court there indicated that the judge could have done
several things to reduce the effect of the pre-trial publicity.
The use of the continuance was one method suggested. It is
this court's opinion that a continuance is called for by the
facts in this case. The crime in the instant case occurred on
or about October 27, 1967. The defendants were all arraigned
by the middle of December, 1967. The massive publicity ended
(in the major news media) some time in mid-November. It is
this court's belief that there is the possibility that a fair
and impartial jury might be chosen in this district even now.
Beck v. Washington, 369 U.S. 541, 555-558, 82 S.Ct. 955, 8
L.Ed.2d 98 (1962). Reinforcing this court's belief is its
ability to use the voir dire examination of prospective jurors
to eliminate the possibilities of prejudice. As Judge Edward
Weinfeld said in denying a continuance, United States v.
Kahaner, 204 F. Supp. 921, 924 (S.D.N.Y. 1962):
To the same effect, see Beck v. Washington, supra, 369 U.S. at
557, 82 S.Ct. 955. However, even given this belief that a fair
trial might be had now, this court, in the exercise of an
abundance of caution, does not intend to proceed with the
trial of this case until September, 1968, ten months after the
massive publicity will have ended.
As to the necessity for controls on publicity during trial,
this court's order of February 6, 1968, need only be quoted in
"Several recent Supreme Court decisions have
dealt with the question of what constitutes
prejudicial publicity at a public trial. Irwin v.
Dowd, 366 U.S. 717 [81 S.Ct. 1639, 6 L.Ed.2d 751]
(1961); Rideau v. Louisiana, 373 U.S. 723 [83
S.Ct. 1417, 10 L.Ed.2d 663] (1963); Sheppard v.
Maxwell, 384 U.S. 333 [86 S.Ct. 1507] (1966).
This court agrees with several of the assumptions
which run through these decisions. The courtroom
and courthouse premises are subject to the
control of the court. The presence of the press
must be limited when it is apparent that the
accused might otherwise be prejudiced." (At 23.)
The defendants cite these same decisions in their brief. This
court is of the opinion that there is nothing in those cases
to cause this court to change its attitude toward the present
motion. Also see the discussion at pages 6 to 9 of the
The court therefore denies the defendants' motion to waive
a trial by ...