Opinion
No. 51792
Decided September 15, 1967.
Criminal procedure — Prejudicial publicity as ground for reversal of conviction — Effect of jurors' statement they will disregard publicity — Refusal of change of venue prejudicial error, when.
1. Prejudicial publicity alone may require reversal of a conviction of one tried for first degree murder.
2. This is so even though the jurors say they can and will disregard such publicity, where, because of its mass, intensity, duration and prejudicial character, it is evident that they cannot do so.
3. The refusal of the trial judge to grant a change of venue in the face of intensely prejudicial, local pretrial publicity, is error which requires a retrial, where there is no reason to believe that a continuance will abate the prejudice.
Messrs. Vandemark D'Ambrosio, for petitioner.
Mr. Robert L. Balyeat, for respondent.
Petitioner, Ralph K. Forsythe, asks for release from sentence to the Ohio Penitentiary following his conviction in this court, in 1957, of first degree manslaughter. He filed a petition in which he enumerated specific areas of claimed infringement of constitutional rights, then an amended petition in which he raised the claim of prejudicial publicity. The petitions were consolidated for hearing by agreement of counsel. At the hearing counsel for respondent moved to limit the court's consideration to the issue posed in the amended petition. A ruling on this motion was reserved. It is now overruled.
The single ultimate question presented by this case is whether petitioner was accorded his right of due process under the 14th Amendment to the United States Constitution and Article I, Section 10 of the Ohio Constitution, at the time of his trial. He makes four specific charges in support of his claim that he was not:
1. Prejudicial publicity, both before and during trial.
2. Irregularity in the court proceedings.
3. Misconduct of the prosecuting attorney.
4. Inadequate defense counsel.
After a full consideration of the evidence and law, it is the opinion of this court that petitioner was denied his right to be tried, according to due process of law, before an impartial jury. The judgment of conviction against him is vacated and he is granted a new trial to commence within 90 days of the filing of this entry. He is to be brought before this court forthwith for the purpose of fixing a reasonable bond guaranteeing his appearance at trial.
It is so ordered.
This ruling is based upon a finding of prejudicial publicity and, complementing this, an irregularity in the court proceedings. There is no credible evidence to support the claims of misconduct by the state's counsel or incompetence of defendant's counsel.
The event for which petitioner was tried occurred August 10, 1957. From this date through the beginning of trial on November 18, 1957, until the verdict was returned, December 14, 1957, this county was saturated with publicity of a nature extremely damaging to him. Forsythe had a lengthy police record. The two Lima newspapers, having a total circulation of 40,000 throughout a county with a population of 100,000, repeatedly and persistently referred to him as an "ex-con," "vice figure," and as the "Allen County Vice King."
The Lima Citizen and the Lima News obviously blanketed the county with newsprint. They were in a struggle for circulation superiority and this cause celebre provided ready ammunition for repeated salvos of colorful prose. While the adjectives were doubtless accurate as applied to Forsythe, the accumulation of them, their very mass, their repetition over four months, ridiculed the guarantee this court made to him that he would receive a fair trial before an impartial jury at our hands.
A few examples from the record must suffice here to support this conclusion:
August 12, 1957 — Lima News refers to defendant as the "Vice King."
August 13, 1957 — Lima News refers to defendant's vice background calling him, "Former Lima-Land Vice King."
August 17, 1957 — Lima News refers to the "Accused Former Lima Vice King."
August 19, 1957 — Lima News says, "Law enforcement authorities were shaping up the case against the one-time Lima Vice Baron today."
September 19, 1957 — The Lima Citizen front page article reads in part as follows: "The Forsythe indictment only the latest of a long list of crimes ranging from operating a house of prostitution to possession of narcotics * * * Forsythe appealed the ruling which ordered him to prison * * * the court banished Forsythe from this county."
September 28, 1957 — Lima News referred to him as "the former vice king."
October 18, 1957 — Lima News said the "once acknowledged leader of vice activities in Lima * * *."
November 26, 1957 — Lima News after beginning of trial, referred to him as the local "vice figure."
November 17, 1957 — On the day before the trial began the Lima Citizen carried a front page story which said in part, "There is speculation on the two witnesses being called who claim to have seen defendant shoot Connors * * *. No one would have difficulty showing that defendant has been in trouble with the law * * *. Defendant was in `dutch' in Lima Municipal Court and on July 17, 1957, he was ordered to serve one year in the workhouse for operating a house of prostitution * * * the defendant was in the hospital from a beating by a vice figure who `reportedly resented defendant's attempt to "muscle" back into the local vice scene' * * *. In April defendant was arrested in Anderson, Indiana, for extortion and conspiracy. He pleaded guilty to failing to register as a parolee * * *. Defendant has been jailed on conviction of narcotics possession and other felonies and misdemeanors dating back to his teens."
November 21, 1957 — In the Lima News on the date the jury was sworn, there appeared a sketch of the prosecutor and the prospective jurors on the front page. The accompanying article stated, in part: "Defendant's attorney confirmed that the former "vice baron" will take the stand * * *. Forsythe has a criminal record going back to 1936" (his offenses were listed).
November 20, 1957 — While the jury was being selected the Lima News featured sketches on the front page of the judge and the defendant. Under the defendant's picture was the caption, "This is Ralph Forsythe, `Confidence Man.'"
November 22, 1957 — The Lima Citizen identified the jurors and alternates in a front page story and stated, in part: "The 14 jurors and alternates who visited the brothel home of accused killer * * *."
November 24, 1957 — Lima News said, "Forsythe is a long-time key figure in Lima vice circles."
November 26, 1957 — Lima News contained two references to the defendant in the front page as the "one-time vice king."
December 7, 1957 — Lima Citizen two days before the jury was sequestered stated in the first paragraph of the front page story: "The bizarre, dramatic first degree murder trial of Ralph Forsythe, long-time Lima vice figure * * *."
December 8, 1957 — One day before the sequestration the Lima News contained a full page of sketches and referred to the defendant as a "vice figure."
During the case for the prosecution three witnesses testified they saw the defendant shoot the alleged victim. This testimony came as no surprise to anyone for both newspapers had quoted each extensively before the trial. Thus, these witnesses had ready access to each other's story before they were called to testify, making the trial order of a separation of witnesses an empty gesture.
There follows a few examples of newspaper references to these witnesses:
August 12, 1957 — Lima Citizen contains an account of the shooting incident from "unofficial sources."
August 14, 1957 — Lima Citizen refers to the three witnesses who have told police they saw Forsythe shoot and kill Connors.
August 13, 1957 — The following front page article was carried in the Lima News in part: "Both Inspector Grady and Chief Miller seemed optimistic about their chances of proving Forsythe did shoot Connors * * *. `As we figure it, he had 25 hours to hide the body * * * he is familiar with Indiana' * * *. Inspector Grady thinks the defendant took Connors' body away in a paneled truck. The inspector declined to name the three witnesses * * *. `All have clean records and would make good witnesses in court.'" (He said.)
August 15, 1957 — The Lima News refers in the front page to the witnesses who saw the shooting and reviews their statements.
August 20, 1957 — The Lima News said, "Ralph Forsythe, former Lima vice king, was accused by two people of killing Connors." (The witness statements are reviewed in this article.)
August 30, 1957 — The Lima News refers to the eye witness statements.
September 1, 1957 — The Lima News refers to the witnesses and their statements concerning the shooting.
November 13, 1957 — The Lima News, five days before commencement of trial refers to the eye witnesses and their statements.
November 18, 1957 — Front page of the Lima News refers to the two witnesses who have told Lima Police they saw defendant shoot and kill Connors and summarized their statements.
Witness Cash was important to the state and damaging to the petitioner. He identified Forsythe as the man he saw washing blood from rags the morning after the event. The newspapers reviewed his story and commented on his character before he appeared to testify.
On November 21, 1957, prior to his appearance at trial to testify, the Lima Citizen printed a lengthy summary of Cash's statements to police on its front page. The article states, in part: "Cash is the strongest link the prosecutor has uncovered in a chain of circumstantial evidence they hope will send the local vice figure to the electric chair * * *. He is apparently no crank. He has a fine reputation in the community. When asked if he would believe a statement made by Cash, Sheriff Yoho replied, `He is a fine gentleman. I would believe anything he told me' * * * `Cash is a very frightened man,' said Cadiz newsmen, `He has received many reports that Forsythe is connected with vice interests in Steubenville who are going to do away with him.'"
Cash testified that a woman accompanied the man he saw washing the rags. He was asked if he saw a woman in the court room who resembled the companion. He pointed to a woman seated among the spectators, then said, "But her hair's not the right color * * * I don't think that is her."
This episode was reported in the front page of the Lima Citizen on November 28, 1957. This statement followed: "Law officials who know June Forsythe, wife of the defendant, said that the woman pointed to by Cash bears an amazing resemblance to her."
On the front page of its issues of August 12, August 13 and August 14, 1957, the Lima News refererd to an eye witness who had accused Forsythe of murder.
August 12, 1957, the "Lima News investigation revealed a witness told the manager of a bar that he saw Ralph Forsythe murder Connors * * *. `I'm just as good as dead,' he said." (The full statement of the witness is then reproduced.)
August 13, 1957, in a front page story "One witness told a news reporter, `I don't know anything about it.' He was quoted by others as saying, `I am just as good as dead.' * * * The manager of the bar said that he knew the witness, `I believed him — he was really shaken up.'" (A full reproduction of the witness' statement that Forsythe shot Connors is reproduced in the article.)
August 14, 1957, again in the front page there is repetition of the same material carried the previous day, with reference to the eye witness, his statement to police and the comment attributed to him that he was just as good as dead.
The obvious inference from these articles was that Forsythe would murder the witness, or have him murdered, for having implicated him.
While the newspapers were reporting in this manner the local radio and TV station, WINA, was giving the case, and Forsythe, extensive coverage in as many as 17 daily broadcasts. Scripts were not preserved so there is not the same certainty as to content afforded by the available news copy. However, on two consecutive evenings in the middle of July of 1957 newscaster Don Sherwood said that Forsythe belonged in the workhouse for life, that it would cost taxpayers too much money to do so, but that he, Sherwood, would willingly solicit funds for the purpose of sending and keeping him there.
It would be absurd to suppose that publicity of this type within a small county environment would not have an inevitable effect on jurors. All that were examined in court read one or both papers regularly and had read about this case and the defendant. Indeed, how could they help but do so. The subject was inescapable.
The impact of the publicity was all the more pronounced because of the early notice sent the prospective jurors. They received their summonses on either October 12 or October 19, 1957. A mere unskilled understanding of human psychology proclams that when these people learned, 30 days before the commencement of the trial, of the role assigned to them they polarized to the news of the case like iron filings to a magnet. This was to be one of the most exciting moments of their lives. What was it all about? Who was involved and what happened?
It is fair to say that on the day of their appearance in court, November 18, 1957, they knew the answers to their questions. The case was about a long-time vice king and police figure who shot and killed a man before three eye witnesses, then washed the victim's blood out of rags the next morning.
The transcript of the voir dire examination of the jurors (Exhibits C-1 and C-2) graphically shows their condition. They had all read about the case and many had formed opinions as to defendant's guilt.
The trial judge assumed they had all read about it. So did the prosecutor.
Juror Schmidt said it was the general topic of conversation.
Juror Stedke said he thought everyone had read about it.
Juror Lloyd said he took more notice of the case after receiving the jury summons in October.
Juror Markly said he read about defendant's other crimes.
But it is the responses of prospective jurors Benson and Rankin that most eloquently summarized the state of mind of this panel on the first day of trial.
Juror Benson said she had formed an opinion of Forsythe's guilt from radio and newspapers and that she could not alter it. On page 208 of the transcript she says, "Where there's so much smoke, there's usually fire."
Later, Rankin was called and also said he had formed an opinion of defendant's guilt. "When I read for years and years of the same name and never anything commendable, I do make up my opinion."
During the course of the trial a news table was situated inside the court room rail and within the working area. It was occupied by news personnel from local and outlying newspapers. While there is some dispute as to the distance it was from the defense table, it was certainly within arm's length and in the jury's line of sight at all times.
This represented a serious departure from proper courtroom arrangement and gave the news personnel undue prominence, tantamount to an official role in the conduct of the proceedings.
At least several of the trial jurors disregarded the court's admonition against reading about the case during the trial. (Testimony of Markly, Crow, Settlemeyer and Reese.) Surely the prominence accorded the media by the court itself added to the impact of their stories and lent an aura of court endorsement of their authenticity.
Due process of law under the 14th Amendment requires that an accused receive a fair trial by an impartial jury free from outside influences. Sheppard v. Maxwell, Warden, 384 U.S. 333, 16 L. Ed. 2d 600, 86a S. Ct. 1507. The more relentless and impassioned those influences, the more safeguards are required.
Early in the life of this case it should have been evident that Ralph Forsythe could not find an impartial jury in Allen County, unless it was one comprised of the deaf and the blind. When the change of venue was requested on November 16, Judge Jenkins was fully aware of the extent and character of the publicity. Two days later in court he acknowledged it, deplored it, and asked jurors to disregard it.
His assumption that they could disregard it, even though based upon their assurances, was the triumph of faith over experience. Faith assures a judge that all jurors can be purged of a prejudiced opinion by instruction. Experience tells him that when a juror says he will disregard such an opinion he really means he will try his best. No defendant should be forced to risk the chance he will not succeed.
The defense motion for change of venue should have been granted.
With his life at stake it is not requiring too much that Forsythe should have been tried in an atmosphere undisturbed by so intensive a trumpeting of his past and the details of the case against him. Where there is a reasonable likelihood that prejudicial news prior to trial will prevent a fair trial, and postponing the trial will not remove the threat, the judge should transfer the case to another county not so permeated with publicity. Irvin v. Dowd, Warden, 366 U.S. 717, 6 L. Ed. 2d 751, 81 S. Ct. 1639; Sheppard v. Maxwell, supra.
A showing of actual prejudice is not necessary in order to reverse here. It has been explained before that in this area logic and experience can substitute for proof. Estes v. Texas. 381 U.S. 532, 14 L. Ed. 2d 543, 85 S. Ct. 1628; Riddeau v. Louisiana, 373 U.S. 723, 10 L. Ed 2d 663, 83 S. Ct. 1417; and Turner v. Louisiana, 379 U.S. 466, 13 L. Ed. 2d 424, 85 S. Ct. 546.
Anyone viewing this case with objectivity, after examining the publicity surrounding it, must believe that the real trial of Ralph Forsythe took place on the front pages of the Lima News and Citizen and over the air waves. The proceeding that followed in the courthouse was reduced to a mere search for the degree of the offense. It is not too much to suggest that every member of the jury, after exposure to the lengthy catalogue of defendant's misdeeds, was sorely tempted to convict him of something, merely on general grounds.
This petitioner may be a lawless man. But what we must never lose sight of is that it is the proclaimed lawless man, notorious in his community, who most needs protection from that notoriety, so that we can farly distinguish him from the lawful. This is not a process of separation which can be left to news editors, for with them, justice sometimes runs second to circulation in the race.
We must guarantee the lowliest among us due process of law or else the innocence of the highest among us will be no protection against private spite and personal malice.
SIMMONS, J., of Lake County Common Pleas Court, sitting by assignment in Allen County.