When Judges Disagree

If four judges read the same record, the odds are that two of them will conclude exactly the opposite of what the other two conclude. Or so it seems from the endless case of Dr. Sam Sheppard, the Ohio osteopath who was convicted ten years ago for the bludgeon-murder of his wife.

Having lost in the Ohio Supreme Court, Life Prisoner Sheppard turned to the federal courts, and last year his trial record came before U.S. District Judge Carl A. Weinman. Ruling only on the question of fair trial rather than guilt or innocence, Judge Weinman concluded last July that "inflammatory" reporting by Cleveland newspapers so prejudiced Sheppard's jurors that it made his trial "a mockery of justice." Weinman's opinion, which freed Sheppard, became a milestone in the unfolding U.S. furor over the evils of "trial by newspaper."

Last week, by a vote of 2 to 1, the U.S. Court of Appeals in Cincinnati reversed Weinman's opinion. To dissenting Judge George Edwards, a former Detroit police commissioner, the record showed a "flagrant" denial of Sheppard's constitutional rights. But to Judges Clifford O'Sullivan and Harry Phillips that was pure assumption. While praising Weinman's "commendable concern," they concluded-that Cleveland's admittedly "shabby" reporting was still not enough to prejudice Sheppard's jurors. Moreover, they went on to virtually sweep aside the entire bar position on the effects of prejudicial reporting. Said they: "Our jury system cannot survive if it is now proper to presume that jurors, selected with the care taken in this case, are without the intelligence, courage and integrity necessary to their obedience to the law's command that they ignore the kind of publicity here involved."

Despite the reversal, Sheppard may stay out of prison for some time. His lawyer has asked for a rehearing, may seek review by the U.S. Supreme Court, and hopes ultimately for an entirely new trial. Many another judge will doubtless get a crack at Sheppard's puzzling record.

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