United States v. Smith

• Decision Date: 17 July 1962
• Docket Number: No. 351,Docket 27418.,351
• Citation: 306 F.2d 596
• Parties: UNITED STATES of America ex rel. Frank BROWN, Petitioner-Appellee, v. Robert G. SMITH, Warden, Vermont State Prison, Respondent-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

306 F.2d 596 (1962)

UNITED STATES of America ex rel. Frank BROWN, Petitioner-Appellee, v. Robert G. SMITH, Warden, Vermont State Prison, Respondent-Appellant.

No. 351, Docket 27418.

United States Court of Appeals Second Circuit.

Argued May 3, 1962.

Decided July 17, 1962.

Petition for Rehearing Denied October 1, 1962.

Thomas M. Debevoise, Woodstock, Vt. (Charles J. Adams, Atty. Gen., State of Vermont, Montpelier, Vt., on the brief), for respondent-appellant.

John S. Burgess, Brattleboro, Vt. (Henry F. Black, White River Junction, Vt., and Robert H. Gibson, Brattleboro, Vt., on the brief), for petitioner-appellee.

Before LUMBARD, Chief Judge, and WATERMAN and FRIENDLY, Circuit Judges.

Petition for Rehearing in Banc Denied October 1, 1962.

LUMBARD, Chief Judge.

The State of Vermont and the warden of its prison appeal from an order of the district court granting the discharge of Frank Brown on a writ of habeas corpus for the State's "failure to accord petitioner a fair trial by a panel of indifferent jurors plus the denial of state appellate review" in violation of his constitutional rights after his sentence in the Windham County Court to life imprisonment for arson causing death. The order stayed the release for thirty days to enable the State to take steps for a new trial. When the State determined to appeal, the judge granted it a certificate of probable cause and directed that Brown be placed in the custody of the United States Marshal and that he be released in $5,000 bail.

The record does not support the district judge's finding of jury prejudice. The Vermont courts afforded Brown all the rights of review to which he was constitutionally entitled in view of his failure to file a timely appeal in accordance with the Vermont statute, and thus we find no constitutional error in the denial of full appeal under the circumstances. Accordingly, we reverse the order of the district court and direct that bail be revoked and that Brown be returned to the warden.

On December 26, 1958, shortly after 9 P.M., a fire started in a ground floor drugstore at 14 Elliot Street in Brattleboro, which store was managed and controlled by Brown. Smoke spread rapidly to the rest of the building. One Lyman Streeter, who resided in a third floor apartment above the store, was carried from the building and died within a few minutes. According to the State's evidence at the trial death was caused by asphyxiation from inhaling smoke. There was also evidence that Brown left the building an instant before smoke and fire were seen coming from the store. Seven months after the fire, on July 23, 1959, Brown was indicted for arson resulting in Lyman Streeter's death, a capital offense under the Vermont statutes. 13 Vt.Stat.Ann. § 501.

On July 27 Brown appeared in the County Court for arraignment, accompanied by Mr. Burgess, who has been one of his counsel ever since. After the court had set the trial for September 15, Brown's counsel moved that he be admitted to bail, a matter which is discretionary in capital cases under Vermont law. Dr. David Ruml, a Brattleboro physician, testified that in January Brown had had a coronary condition, that two months before the hearing he had had a heart attack and that his detention in jail would create additional tension. The Deputy Attorney General,¹ Mr. Debevoise, on cross-examination asked the doctor whether it would make any difference in his opinion if he knew that Brown had been "previously arrested and incarcerated on the following convictions." Objection was made to this question by Mr. Burgess and counsel argued the propriety of the question. At this point the judge raised the question of prejudice, resulting in the following colloquy:

"Court: What do you say about the element of prejudice?

"Mr. Debevoise: I think the Court can order the Courtroom cleared but I believe this is pertinent to the inquiry under discussion which is whether or not bail should be granted in the Court\'s discretion and the respondent in his applicated sic is started off with an opinion by the doctor based on medical reasons. The State should have an opportunity to see if the doctor has all the facts regarding the background.

"Court: Why don\'t you simply ask whether without skirting the element of prejudice?

"Mr. Debevoise: You mean without mentioning specific crimes?

"Court: Yes.

"Q. Would it make any difference to your opinion, Doctor, if it were the fact that on thirty-six different occasions this respondent has been charged with at least one crime?

"Mr. Burgess: We again object. We don\'t see the relativity of what somebody has been charged with on the doctor\'s medical opinion.

"Court: We will take the answer. You may have an exception.

"A. No, I don\'t think it would.

"Q. It is six weeks between now and trial, about six weeks. Would it make any difference to your opinion if the respondent on at least eight different occasions spent periods of time longer than six weeks in jail?

"A. No. I believe this man being in jail, this is an anxiety producing state, I think it is a greater anxiety producing state than being out on bail. This man has a serious heart condition and I think anything which jeopardizes his life should be avoided if possible."

Mr. Burgess made no application to clear the courtroom and made no objection whatever to the proceedings which followed the Deputy Attorney General's suggestion that the courtroom could be cleared. During further colloquy it appeared that the criminal record referred to covered the years 1928 to 1944 when Brown was in Boston. Brown's criminal record was also offered as relevant to the likelihood of flight. The details of the record were not made public and were not published or broadcast. At the conclusion of the hearing the judge ordered Brown committed to the custody of the Sheriff without bail.

The next day, July 28, the Brattleboro Daily Reformer published a front-page lead article under a one column headline reading "Brown Held For Arson Trial in Sept.," with the sub-heading "Bail Denied by Court; Record of 36 Arrests Cited." The account was factual and restrained and accurately related what had occurred at the public proceedings in the County Court at Newfane the day before. After three preliminary paragraphs the account continued:

"On the matter of bail the respondent\'s request to be heard was granted on the grounds that even in a capital crime it is left to the discretion of the judge. Dr. David Ruml of Brattleboro testified that he had treated Brown for an acute coronary condition in December or January and for an acute heart attack about two months ago. He said that the emotional tension which might bring on another attack would be lessened if Brown were allowed to be free on bail.

"Deputy Atty. Gen. Debevoise asked Dr. Ruml is sic he would change his opinion if he knew that the respondent had been charged on 36 different occasions with at least one crime and had been sentenced at least eight times to serve longer than six weeks in jail in Massachusetts, according to his Boston criminal record between 1928 and 1944.

"Debevoise stated that the only issue was the likelihood of flight, and considering Brown\'s background his release on bail was not feasible.

"Judge Leonard W. Morrison denied bail in view of the fact that Brown is charged with a crime punishable by death."

On September 4, 1959 Brown moved, pursuant to 13 Vt.Stat.Ann. § 4631, for his removal to and trial in another county on the ground that there existed in Windham County such prejudice against him that a fair and impartial trial could not be had. Major reliance was placed upon the disclosure of Brown's criminal record in the July 28 article, but certain other newspaper, radio and television reports were also referred to and set forth as exhibits. The moving papers pointed out what was regarded as prejudicial in these other reports, as follows:

"Some of the news stories as published in the Brattleboro Daily Reformer set forth, among other things, that `Brown drove up to the police station in a blue Cadillac convertible.\'

"It has also been stated in news stories that the arrest of the respondent `followed a long investigation by the State Fire Marshal\'s office,\' and further that State Pathologist Richard S. Woodruff of Burlington `reported his findings that Streeter\'s death was caused by smoke inhalation.\'"

The most recent news report referred to was that relating to the bail hearing in the Reformer on July 28, and no other reports have been referred to at any stage in these proceedings. It is apparently undisputed that the news media carrying these stories have a very substantial audience in Windham County.

On October 1 the court heard the motion and took testimony thereon. The only witness called to establish the existence of prejudice was A. Luke Crispe, counsel for the previous owners of the drugstore who had taken the store back on foreclosure and who admittedly would be in a better position to collect on the insurance if Brown was acquitted. While Mr. Crispe gave his opinion that the publicity had definitely created prejudice against Brown, he also stated categorically that he was not saying that Brown could not get a fair trial in the county. On October 8 Judge Sylvester denied Brown's motion, stating that he found nothing inflammatory or denunciatory in the newspaper articles. Regarding the radio spot newscasts he said that these appeared to be "nothing more than a dissemination of a normal news topic of more than average interest to the inhabitants of Windham County to be sure but still a news account and so utilized by the radio station."

On the afternoon of October 26, after the denial of several preliminary motions, including another motion for a change of venue, the court commenced the selection of the jury, which continued on the following day and concluded on the morning of October 28 after twelve jurors and two alternates had been chosen. Of the forty-seven...