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tion. The article detailed the attempted bribe, the meeting place for its completion and the substitution of a $44 gift of shirts for the originally-offered $200. This most damaging story of the $200 bribe is wholly unsupported by the evidence. Accordingly, had the prosecutor written letters to the jurors retelling this story, of course we would

He did the equivalent. For it is outrightly conceded that the Times reporter learned this tale from the prosecutor, and that four copies of the newspaper article were found in the jury-room on the third day of the trial.

“My colleagues admit that 'trial by newspaper' is unfortunate. But they dismiss it as an unavoidable curse of metropolitan living (like, I suppose, crowded subways). They rely on the old 'ritualistic admonition' to purge the record. The futility of that sort of exorcism is notorious. As I have elsewhere observed, it is like the Mark Twain story of the little boy who was told to stand in a corner and not to think of a white elephant. Justice Jackson, in his concurring opinion in Krulewitch v. United States, 336 U.S. 440, 453, 69 S.Ct. 716, 723, 93 L.Ed. 790, said that, “The naive assumption that prejudicial effects can be overcome by instructions to the jury

all practicing lawyers know to be unmitigated fiction. See Skidmore v. Baltimore & Ohio R. Co., 2 Cir., 167 F.2d 54.' Cf. People v. Carborano, 301 N.Y. 39, 42–43, 92 N.E.2d 871; People v. Robinson, 273 N.Y. 438, 445–446, 8 N.E. 2d 25.

“I think the technique particularly objectionable and ineffective here for two reasons. (1) The story was a direct result of confidential disclosures by a government officer, the prosecutor, of not-in-the-record matters, and was not merely the accidental garbling of a confused reporter. (2) The article was no statement of opinion or editorial, but a professed account of court-room evidence


Memorandum of FRANKFURTER, J.

calculated to confuse and mislead juror-readers. In such cases, courts recognize that, for all practical purposes, defendants are deprived of their constitutional rights to confront witnesses, cross-examine and contradict them, and object to evidence as irrelevant or incompetent-in short all the elements of a fair trial. Last year, two Supreme Court Justices advocated in a concurring opinion the reversal of a conviction upon the ground that an officer of the court had released to the local press information about confessions of the defendants never introduced at the trial. Shepherd v. Florida, 341 U.S. 50, 71 S.Ct. 549, 95 L.Ed. 740.

"I cannot see the relevance here of cases, to which my colleagues refer, applying the 'clear and present danger' test to contempts by newspapers for articles relative to pending trials (incidentally, all non-jury trials). That test has been employed only when the newspaper itself was threatened with criminal punishment for the publication. It certainly should not be carried over to a case like this one where convicted defendants may well have been prejudiced by a newspaper article. In such a case, the 'clear and present danger' test would bar reversals for all but the most flagrantly scurrilous or deceptive newspaper attacks. Courts, in reversing convictions for trialby-newspaper, have always recognized that printed matter may be prejudicial enough to require a new trial without evidencing so depraved an attitude of the publisher as to support a contempt citation. United States v. Ogden, D.C.E.D. Pa., 105 F. 371, 374.

"In the instant case, the newspaper and reporter, if cited for contempt, would doubtless urge as a defense that the story came from the prosecutor, an officer of the court.' That very fact, however, underscores the gravity of the error here.” Id., at 865-866.

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No. 673. TURNEY v. HOME INSURANCE Co. C. A. 3d Cir. Certiorari denied. Petitioner pro se. Joseph J. Biunno, John II'. Ansell and Charles B. Niebling for respondent. Reported below: 192 F. 2d 1023.

No. 680. WINGER, ADMINISTRATOR, v. McCULLOUGH TRANSFER Co. Court of Appeals of Ohio, Seventh Judicial District. Certiorari denied. David C. Haynes for petitioner. Richard W. Galiher for respondent.

No. 685. FURLONG ET AL. v. UNITED STATES. C. A. 7th Cir. Certiorari denied. Frank J. McAdams, Jr. for petitioners. Solicitor General Perlman, Assistant Attorney General JcInerney and Beatrice Rosenberg for the United States. Reported below: 194 F. 2d 1.

No. 676. BERGER v. MCGRATH, ATTORNEY GENERAL. United States Court of Appeals for the District of Columbia Circuit. Certiorari denied. MR. JUSTICE CLARK took no part in the consideration or decision of this application. Raoul Berger, pro se. Solicitor General Perlman, Assistant Attorney General Baynton, James D. Hill, George B. Searls and Irwin A. Siebel for respondent. Reported below: 90 U. S. App. D. C. — 195 F. 2d 775.


No. 678. LIVANOS ET AL. V. PATERAS ET AL. C. A. 4th Cir. Certiorari denied. Jacob L. Morewitz for petitioners. Thomas M. Johnston for respondents. Reported below: 192 F. 2d 319.

No. 401, Misc. Wilson ET AL. v. WASHINGTON. Supreme Court of Washington. Certiorari denied. Reuben G. Lenske for petitioners.


, AL. Supreme Court of Missouri. Certiorari denied.

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No. 282, Misc. PATTERSON v. UNITED STATES. C. A. 5th Cir. Certiorari denied. MR. JUSTICE DOUGLAS is of the opinion certiorari should be granted. John D. Cofer for petitioner. Solicitor General Perlman, Assistant Attorney General McInerney, Beatrice Rosenberg and Robert G. Maysack for the United States. Reported below: 192 F. 2d 631.

No. 447, Misc. Skladb v. Michigan. Supreme Court of Michigan. Certiorari denied.

No. 454, Misc. COGDELL V. TENNESSEE. Supreme Court of Tennessee. Certiorari denied. Reported below: 193 Tenn. 261, 246 S. W. 2d 5.

No. 458, Misc. JOHNSON v. ILLINOIS. Supreme Court of Illinois. Certiorari denied.

No. 459, Misc. Wells v. DUSTMANN. Supreme Court of Illinois. Certiorari denied.

No. 462, Misc. OKULCZYK V. ILLINOIS. Circuit Court of Will County, Illinois. Certiorari denied.


No. 468, Misc. TAYLOR v. SMITH, SECRETARY PENNSYLVANIA. C. A. 3d Cir. Certiorari denied.

No. 478, Misc. LARSON v. CRANOR, WARDEN. Supreme Court of Washington. Certiorari denied. Petitioner pro se.

Smith Troy, Attorney General of Washington, for respondent.

Rehearing Denied.

No. 443. UNITED STATES V. SPECTOR, ante, p. 169. Rehearing denied. MR. JUSTICE CLARK took no part in the consideration or decision of this application.

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No. 514. LEISHMAN v. GENERAL MOTORS CORP., 342 U. S. 943. Second petition for rehearing denied.

No. 195. RUTKIN v. UNITED STATES, ante, p. 130;
No. 373. STROBLE v. CALIFORNIA, ante, p. 181;
No. 584. LYNCH v. GRUBER ET Ux., ante, p. 914;

No. 303, Misc. UNITED STATES EX REL. MILLS v. REING, U. S. MARSHAL, ante, p. 909;


No. 446, Misc. IN RE WHITNEY, ante, p. 933. Petitions for rehearing denied.

May 19, 1952.


Miscellaneous Order.



No. 745. SAWYER, SECRETARY OF COMMERCE, YOUNGSTOWN SHEET & TUBE CO. ET AL. The motions for leave to file briefs of American Legion Post No. 88 and Everett S. Layman, as amici curiae, are denied.

Certiorari Denied.

No. 683. SMITH V. JONES, COLLECTOR OF INTERNAL REVENUE. C. A. 10th Cir. Certiorari denied. “Ram Morrison for petitioner. Solicitor General Perlman, Acting Assistant Attorney General Slack and A. F. Prescott for respondent. Reported below: 193 F. 2d 381.

No. 686. Moss, TRUSTEE IN BANKRUPTCY, v. May. C. A. 8th Cir. Certiorari denied. D. D. Panich for petitioner. A. F. House and Harry E. Meek for respondent. Reported below: 194 F. 2d 133.

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