Geagan v. Gavin

• Decision Date: 30 June 1961
• Docket Number: No. 5643.,5643.
• Citation: 292 F.2d 244
• Parties: Michael Vincent GEAGAN et al., Petitioners, Appellants, v. John A. GAVIN, Superintendent, Massachusetts Correctional Institution, Respondent, Appellee.
• Court: U.S. Court of Appeals — First Circuit

292 F.2d 244 (1961)

Michael Vincent GEAGAN et al., Petitioners, Appellants, v. John A. GAVIN, Superintendent, Massachusetts Correctional Institution, Respondent, Appellee.

No. 5643.

United States Court of Appeals First Circuit.

Heard November 2, 1960.

Decided June 30, 1961.

Manuel Katz and Lawrence F. O'Donnell, Boston, Mass., with whom Paul T. Smith, Robert DeGiacomo and Henry Sontag, Boston, Mass., were on the brief, for appellants.

John F. McAuliffe, Sp. Asst. Atty. Gen., with whom Edward J. McCormack, Jr., Atty. Gen., Garrett H. Byrne, Dist. Atty., Boston, Mass., and Gerald F. Muldoon, Sp. Asst. Atty. Gen., were on the brief, for appellee.

Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges.

WOODBURY, Chief Judge.

This is an appeal by eight persons, who with three others¹ have come to be known as the "Brink's Robbers," from a judgment of the United States District Court for the District of Massachusetts, Wyzanski, J., denying their petition for a writ of habeas corpus, and from an order denying their motion for a new trial or for amended findings of fact and conclusions of law.

After dark on January 17, 1950, a band of armed men dressed alike and wearing rubber Halloween masks entered the premises of Brink's Incorporated² in downtown Boston by means of pass keys, trussed the Brink's employees on guard and made off with $1,219,000 in cash. Hue and cry, modern version, was promptly raised but nevertheless the perpetrators of the crime succeeded in evading police traps and road blocks and made good their escape. Naturally enough a successful crime of such magnitude executed so dramatically and with such daring received extensive local and national coverage in the newspapers and on television and radio.

Six years later, on January 13 and January 16, 1956, the eight appellants and the three other persons mentioned above were indicted by a grand jury in the Superior Court of the Commonwealth of Massachusetts for Suffolk County for a variety of offenses arising out of the "Brink's Robbery." This event and the ensuing arrests of the accused were also covered extensively in the news media. On August 6, 1956, the eight appellants on pleas of not guilty entered for them by the court on their standing mute were set to the bar to be tried by jury on some of the indictments. Two months later, on October 6, 1956, they were found guilty as charged in the indictments on which they were tried and on October 9, 1956, they were sentenced to long terms of imprisonment.

On appeal the Supreme Judicial Court of the Commonwealth of Massachusetts affirmed the judgments of sentence, Commonwealth v. Geagan & Others, 1959, 339 Mass. 487, 159 N.E.2d 870, certiorari denied 361 U.S. 895, 80 S.Ct. 200, 4 L.Ed. 2d 152, and thereupon on January 18, 1960, the appellants petitioned the court below for habeas corpus. That court, accepting the allegations of the petition as true and ruling in accordance with Brown v. Allen, 1953, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469, that available state remedies had been exhausted, entered judgment denying the petition and issued a certificate of probable cause for appeal pursuant to Title 28 U.S.C. § 2253.

The appellants' contention on this appeal, in the court below and in both the Superior and Supreme Judicial courts of Massachusetts, is that massive sustained publicity instigated and stimulated in part by federal and state enforcement officials poisoned the public mind against them to such an extent that they could not and did not have a fair trial in conformity with the due process requirement of the Fourteenth Amendment of the Constitution of the United States. More specifically, their claim is that there was such extensive prejudicial publicity attendant upon their indictment, arrest and trial purporting to emanate and emanating from official sources that the grand jury which indicted them was prejudiced, that the petit jury which tried them was prejudiced and that the prejudice was so deep-seated and ineradicable as to make it impossible for them to obtain a fair trial at any time during the period within which they might have obtained a constitutionally speedy trial.

Although counsel for the appellants presented their contention to the trial court by seasonable motions to quash, pleas in abatement and pleas in bar, they at no time prior to or during the trial asked for any judicial action designed to curb or control continuance of the publicity of which they complained.³ Nor did counsel for the appellants move for a change of venue or for a continuance. Since in the present state of the law it is not clear that any court, state or federal, has any practically effective means at its disposal for preventing "trial by newspaper," to use a catch phrase,⁴ see Toledo Newspaper Co. v. United States, 1918, 247 U.S. 402, 38 S.Ct. 560, 62 L.Ed. 1186, overruled by Nye v. United States, 1941, 313 U.S. 33, 61 S.Ct. 810, 85 L.Ed. 1172; Bridges v. State of California, 1941, 314 U.S. 252, 62 S.Ct. 190, 86 L.Ed. 192; Pennekamp v. State of Florida, 1946, 328 U.S. 331, 66 S.Ct. 1029, 90 L.Ed. 1295; Craig v. Harney, 1947, 331 U.S. 367, 67 S.Ct. 1249, 91 L.Ed. 1546, and since there is certainly some basis for counsels' assertion that the prejudicial publicity was so widespread and continuous that the defendants would fare no better in any other county in Massachusetts or be any better off if the trial were postponed for any reasonable length of time, it seems to us that for the purposes of this particular appeal the defendants should stand no worse for their counsels' failure to ask for some sort of court order limiting publicity or for a change of venue or a continuance. Cf. Delaney v. United States, 1 Cir., 1952, 199 F.2d 107, 116, 39 A.L.R.2d 1300. We shall therefore proceed to the merits.

But this does not mean that we shall undertake to cover once more the same ground already so well covered by the highest court of the Commonwealth of Massachusetts and the District Court. The opinion of the Massachusetts Supreme Judicial Court written by Mr. Chief Justice Wilkins was aptly described by the court below as "a model of clarity in its exposition of the record in the state court, of the issues presented, and of the governing authorities." We can say the same with reference to Judge Wyzanski's opinion for the District Court. Nothing would be gained by repeating what has already been so well said. Therefore on this appeal our consideration will be limited to the question whether, in the light of Irvin v. Dowd, 81 S.Ct. 1639, decided by the Supreme Court of the United States on June 5, 1961, the defendants, in spite of the publicity of which they complain, were nevertheless accorded a fair trial by a panel of impartial, indifferent jurors as required by the due process clause of the Fourteenth Amendment of the Constitution of the United States.

The question whether jurors are impartial in the constitutional sense is one of mixed law and fact as to which the challenger has the burden of persuasion, for: "Unless he shows the actual existence of such an opinion in the mind of the juror as will raise the presumption of partiality, the juror need not necessarily be set aside. * * *" Reynolds v. United States, 1878, 98 U.S. 145, 157, 25 L.Ed. 244, quoted with approval in Irvin v. Dowd, supra. And, to decide whether the challenger has sustained his burden, it is the duty of this court as stated in the case last cited "to independently evaluate the voir dire testimony of the impaneled jurors." 81 S. Ct. 1643.

Some general observations are in order, however, before taking up the voir dire examination of the veniremen generally and the testimony on voir dire of the two petit jurors whom the appellants specifically charge with harboring constitutionally disqualifying prejudice.

It can certainly be said that the Brink's Robbery excited widespread public interest and no little general public amazement at the obvious skill with which it was planned and the dramatically bold and daring way in which a group of armed and masked men invaded supposedly impregnable premises and successfully made off with a million two hundred and nineteen thousand dollars. It cannot be said, however, that the robbery stirred general feelings of rage and revulsion touching off widespread public clamor for vengeance on those accused of perpetrating it, for it was not accompanied by any physical violence except the disarming and trussing of the guards on duty.⁵ The crime certainly did not arouse public passion and emotion in any way comparable to that aroused by the rape and murder of a six-year-old girl, Stroble v. State of California, 1952, 343 U.S. 181, 72 S.Ct. 599, 96 L.Ed. 872, or the slaughter by a husband of his wife and children, Ciucci v. State of Illinois, 1958, 356 U.S. 571, 78 S.Ct. 839, 2 L.Ed. 2d 983, or multiple murders, Irvin v. Dowd, supra, see also the earlier report of the same case, 1959, 359 U.S. 394, 79 S.Ct. 825, 3 L.Ed.2d 900. Far less did the Brink's Robbery excite public hysteria accompanied by mob violence such as the rape of a white woman by four armed negroes, Shepherd v. State of Florida, 1951, 341 U.S. 50, 71 S.Ct. 549, 95 L.Ed. 740, or the killing of white men by negroes in Arkansas, Moore v. Dempsey, 1923, 261 U.S. 86, 43 S.Ct. 265, 67 L.Ed. 543. Not only was the death penalty not involved but also no feelings of race or religious prejudice were...