Mares v. United States, 9346.

• Citation: 383 F.2d 805
• Decision Date: 15 August 1967
• Docket Number: No. 9346.,9346.
• Parties: Arthur MARES, Appellant, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

383 F.2d 805 (1967)

Arthur MARES, Appellant, v. UNITED STATES of America, Appellee.

No. 9346.

United States Court of Appeals Tenth Circuit.

August 15, 1967.

COPYRIGHT MATERIAL OMITTED

Eugene Deikman, Denver, Colo., for appellant.

Richard T. Spriggs, Asst. U. S. Atty. (Lawrence M. Henry, U. S. Atty. for the District of Colorado, on the brief), for appellee.

Before LEWIS, BREITENSTEIN, and HILL, Circuit Judges.

BREITENSTEIN, Circuit Judge.

Arthur Mares and Albert Mares were jointly indicted for violation of 18 U.S.C. § 2113(a) and (d) by the robbery of a federally insured savings and loan association in the course of which they put lives in jeopardy by the use of a pistol. On the motion of the government, separate trials were held with Arthur being tried first. Both were found guilty. We are concerned here with the appeal of Arthur. A separate opinion filed this day, 10 Cir., 383 F.2d 811, disposes of the appeal of Albert.

The evidence was entirely circumstantial. It is well summarized in the opinion of the trial court denying the motions for new trials.¹ Although the evidence of guilt is not overwhelming, it is more than sufficient to sustain the conviction.

Defense counsel urge that a reversal is necessary because of the publication, during the trial of Arthur, of a news article reporting a confession which had been excluded by the trial court. The circumstances are these. On July 1, 1966, Arthur and Albert were represented by counsel and entered pleas of guilty. Later that day, Assistant United States Attorney McDonald, at the request of the defendants, saw them in the office of the United States Marshal and discussed their cases with them. Their counsel was not present. In the course of the conversation the defendants admitted participation in the robbery. On July 10, the defendants stated in open court that their pleas were not voluntary but were coerced by the statement of their attorney that unless they pleaded guilty the government would indict the parents of Albert. The court permitted the guilty pleas to be withdrawn. The defendants thereafter secured other counsel.

On the third day of the trial, the prosecution called McDonald as a witness. In a hearing in open court, but out of the presence of the jury, it developed that the government intended to present through McDonald testimony of the oral confessions made on July 1. The court ruled the testimony inadmissible. Later that day, a Thursday, the court continued the trial until the following Monday. The jury, which was not sequestered during the trial, was permitted to separate after the court gave a strong and comprehensive admonition against reading, listening to, or watching reports about the trial.

The Friday morning edition of the Rocky Mountain News, published and circulated in Denver where the trial was being held, printed an article about the trial. It appeared under a bold and prominent headline reading "Robbery Confession Admission Denied." The text of the article covered the examination of McDonald and the ruling of the court on the offer of the government. It reported the guilty pleas, the admissions of complicity in the crime, and, inexactly and out of context, various statements made by the trial judge. It contained the subjective views of the writer that in making the decision the trial judge was "obviously reluctant" and "apologetic" and quoted the judge as saying that he "was regretful when true facts have to be omitted."

When the court convened on the following Monday, defense counsel moved for a mistrial on the basis of the mentioned article but did not request that the jury be polled as to whether any members had read it.² The court denied the motion for mistrial. Immediately after the guilty verdict was returned, the defense renewed the motion for mistrial and requested that the members of the jury be questioned on their knowledge of the newspaper report. The court refused to interrogate the jurors and again denied the motion for mistrial. The same points were raised in a timely motion for a new trial which was denied.

The situation presented has much similarity with Marshall v. United States, 360 U.S. 310, 79 S.Ct. 1171, 3 L.Ed.2d 1250. That case was concerned with a routine prosecution for violation of the food and drug act. During the trial, Denver newspapers printed articles which were derogatory to the accused and which included references to evidence that the trial court had held inadmissible. The trial court questioned the jurors on their knowledge of the news accounts. Six jurors had read or scanned the articles and all said that they were not influenced thereby. The court denied the motion for mistrial. We affirmed the conviction. See Marshall v. United States, 10 Cir., 258 F.2d 94. The Supreme Court, in the exercise of its supervisory powers, ordered a new trial. In so doing, the Court commented that each case relating to a claim of jury prejudice because of newspaper articles appearing during a trial "must turn on its special facts."³

The problem presented is incapable of a satisfactory solution. Media of publicity have the right to report what happens in open court. An accused has a right to a trial by an impartial jury on evidence which is legally admissible. The public has the right to demand and expect "fair trials designed to end in just judgments."⁴ These rights must be accommodated in the best possible manner.

The right to publish a prejudicial article does not carry with it the right of an accused to an automatic mistrial. Such an outcome would give to the press a power over judicial proceedings which may not be countenanced. An accused may not withhold an objection to publicity occurring during a trial until an adverse verdict has been returned. This procedure would permit him to take a gambler's risk and complain only if the cards fell the wrong way. If the trial judge becomes aware of the publicity and orders a mistrial sua sponte, the hazard exists of a claim of double jeopardy on a retrial.⁵

We realize that the problem will not arise if the jurors are sequestered and prevented from reading, hearing, and watching news accounts. We also realize that sequestration imposes a hardship on jurors and should be ordered only in unusual cases. In the case at bar, sequestration was not requested.

The government says, and the record shows, that the jurors were carefully admonished on their responsibility to refrain from exposure to publicity occurring during the trial. It has been well said that: "Appellate courts should be slow to impute to juries a disregard of their duties, * * *."⁶ In Welch v. United States, 10 Cir., 371 F.2d 287, certiorari denied 385 U.S. 957, 87 S.Ct. 395, 17 L.Ed.2d 303, we reviewed the problem of jury prejudice because of publicity and we said that neither exposure nor prejudice will be presumed. We continue to agree with all these principles but, like all generalities, they are subject to exceptions in unusual cases. Marshall says that every claim of jury prejudice under the circumstances presented must turn on its own facts.

We have an extreme situation, the reporting during the trial of a withdrawn guilty plea and an excluded confession. If any juror even saw the headline and connected it with the trial in progress, the possibility that it would not prejudice that juror is so slight that it merits no consideration. Defense counsel called the article to the attention of the court immediately on the reconvening of the trial. Although he negatived rather than requested the polling of the jury at that time, this procedural tactic is not decisive. The article was presented as a ground for mistrial. The nature of the article was such that the trial court should have immediately ascertained whether any jurors had been exposed to it. This could have been done without any reference to the nature of the article. It should have been done by a careful examination of each juror out of the presence of the remaining jurors.⁷ An accused can have no meritorious objection to the ascertainment of the fact of exposure.

The overriding interest is that of the public to secure justice in a controversy between the government and an individual. In the circumstances there was an "imperious necessity"⁸ to ascertain the fact of exposure and thereafter to take such action as might have been appropriate.

We have no desire to deliver a homily on the well debated subject of fair trial and free press. An article of great prejudice to the accused was published in the midst of his trial. The right to publish may not destroy the right to a fair trial. We suggest that a little more restraint on the part of the newspaper would have prevented this conflict between basic constitutional rights. We also suggest to the trial judges that when prejudicial evidence is excluded after a hearing away from the presence of the jury, they ask the representatives of the press to forbear the publication or announcement of any account thereof until after the verdict of the jury. We believe that the responsible press will heed such a request.

We have given thought to a remand for the purpose of an appropriate interrogation of the jurors but have determined that after the passage of about eleven months no good purpose would be served. The jurors have separated and their memories have probably dimmed. Our conclusion is that the failure of the trial court...