O'Shea v. United States, 6924.

• Decision Date: 27 January 1969
• Docket Number: No. 6924.,6924.
• Parties: Patrick J. O'SHEA, Defendant, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — First Circuit

400 F.2d 78 (1968)

Patrick J. O'SHEA, Defendant, Appellant, v. UNITED STATES of America, Appellee.

No. 6924.

United States Court of Appeals First Circuit.

June 12, 1968.

As Amended on Denial of Rehearing August 15, 1968.

Certiorari Denied January 27, 1969.

William P. Homans, Jr., Boston, Mass., by appointment of the Court, for appellant.

Edward J. Lee, Asst. U. S. Atty., with whom Paul F. Markham, U. S. Atty., was on brief, for appellee.

Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.

Certiorari Denied January 27, 1969. See 89 S.Ct. 726.

ALDRICH, Chief Judge.

Defendant appellant O'Shea and one Paige were jointly tried for aggravated armed robbery of a federally insured bank. 18 U.S.C. § 2113(a), (d). Both testified in their defense — if it may be called such as to Paige, who, after the government rested, admitted his guilt but supported O'Shea's denial of complicity. Both were convicted, and O'Shea appeals.

A primary question arises out of the fact that the United States courthouse at Boston has only one corridor, used by the public, the jury and the defendants alike, and that both defendants, who had previously been convicted of armed robbery, were brought as far as the door of the courtroom handcuffed together the morning that trial was to start.¹ They were accompanied by two deputy marshals in mufti. A number of persons were in the corridor, some of whom were probably members of the venire. Defendants' counsel immediately called the incident to the court's attention and requested that a new venire be summoned. The court refused.

Before the impaneling of the jury the court asked the defendants to rise and face the venire. In the course of questioning the jurors for possible disqualification the court inquired whether there was "anything that you have read or seen or thought or heard about the case which in your view might prejudice you against either of the defendants," and received no response. Defendants then asked the court to inquire "whether they saw the defendants arrive, and, if so, whether they observed anything that would in any way prejudice their judgment in this case." The court declined, expressing the fear that "such a question would simply direct to the attention of the * * * panel the very episode which you think might operate to prejudice the jurors against the defendants."

At first blush one may wonder how a question that was totally blind could serve to emphasize a matter which it did not disclose. However, if some jurors had witnessed and some had not, which seems to us the most likely possibility, those who had not might well inquire later of the others what the court's inquiry was about. The court's analysis was correct. The requested question would not have been appropriate unless all of the panel had observed the incident. This was improbable, particularly where people were milling about the corridor and the defendants were not yet known.

Recourse to this logic, however, indicates that the question the court did ask was less than satisfactory. The trial lasted several days. It would seem quite possible, even without stimulating questions, that in such a period a juror who had seen the defendants in handcuffs would have mentioned this fact to some fellow jurors. In such event, as to such jurors the court's question as to prejudice would not have been answered. We cannot accept the government's contention that the jury's prejudice had been "clearly eliminated" by the court's question, or the applicability of Bayless v. United States, 9 Cir., 1952, 200 F.2d 113, cert. denied 345 U.S. 929, 73 S.Ct. 788, 97 L.Ed. 1359.

Though the defendants' question was ill framed, we would have preferred that some inquiry had been made. See United States v. Napoleone, 3 Cir., 1965, 349 F.2d 350. Where it was impossible to treat the infection, we think it would have been better had the court endeavored to eliminate it altogether by asking a blind question, to be answered by a show of hands, whether any juror had seen the defendants prior to their appearance in the courtroom. Such jurors could have been excused, without explanation. Or, if there proved to be a great number of them, the matter might have been dealt with by further questioning, or appropriate instructions. The jury could, for example, if it developed that a substantial number had witnessed the event, have been told that it was a mistake on the part of the marshals and not to be given any weight nor to...