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February 9, 1957

UNITED STATES of America ex rel. Elmer BURKE, Relator,
Wilfred L. DENNO, as Warden of Sing Sing State Prison, Respondent

The opinion of the court was delivered by: SUGARMAN

Upon the petition of one of the counsel assigned to defend him in the state court, the relator, Elmer Burke, moves that the respondent, Warden of Sing Sing State Prison, the Attorney General of the State of New York, and the District Attorney of New York County show cause 'why a writ of habeas corpus should not be issued herein, directing the production of the relator, Elmer Burke, before this Court, so that the cause of his detention and imprisonment may be inquired into.'

The petitioner claims that the relator is unlawfully detained by the respondent in Sing Sing Prison in Ossining, New York, awaiting execution of a sentence of death pronounced upon him by the Court of General Sessions of the County of New York, upon relator's conviction of the crime of murder in the first degree. After reciting the procedural history of this case, the petition asserts in substance that relator was denied a fair trial in accordance with the standards of the due process guaranteed by the Constitution of the United States on three grounds: first, the trial court's denial of an adjournment or a change of venue because of prejudicial newspaper publicity; second, the refusal of the court to set aside the verdict because of allegedly prejudicial security measures in the courtroom; third, the court's denial, during the trial, of a motion for a mistrial made after certain cross-examination of the defendant by the prosecuting attorney.

 Each of these questions was raised on the appeal by the relator to the New York Court of Appeals from his conviction in General Sessions. In disposing of those issues, among others, that Court affirmed the conviction stating: 'Judgment of conviction affirmed; no opinion.' *fn1" Certiorari was denied by the Supreme Court. *fn2"

 When a district judge sits as scrutator of the judgment of the highest court of a state, he does so as the Congressional designee 'in the hierarchy of the federal judiciary to express the higher law' and not as 'a lower court sitting in judgment on a higher court.' *fn3" In the performance of this compulsory review 'in habeas corpus cases, as in others, denial of certiorari cannot be interpreted as an 'expression of opinion on the merits." *fn4" Hence, denial of certiorari to the New York Court of Appeals in this case is accepted as merely a step in the required exhaustion by relator of his state court remedies. *fn5"

 The relator having had the representation of able and industrious assigned counsel throughout the proceedings and an adequate record having been made available to this court, no hearing is deemed necessary. *fn6"

 While an explanatory opinion by the New York Court of Appeals might have shed some light on the reasons for the affirmance, the record and briefs on appeal to that Court amply demonstrate that the questions of due process under the Constitution of the United States now raised, were there squarely presented and 'due account of the (state court) proceedings that are challenged by the application for a writ' *fn7" is taken.


 The Motions for a Change of Venue or an Adjournment

 Twice in the Court of General Sessions (once by formal motion and again at the trial prior to the selection of the jury) the relator moved for a change of venue or an adjournment of the trial because of an article which appeared in a metropolitan daily evening newspaper three days before the formal motion and eight days before the commencement of the trial. The initial motion was brought on by the affidavit of one of relator's assigned counsel, to which was annexed an exhibit of the second section of the Brooklyn edition of the 'New York World-Telegram and The Sun,' which was fairly characterized in that moving affidavit as an article which dealt with a story about this defendant; mentioned much about the impending trial; mentioned the death of others and that the police were seeking the body of this defendant's former friend and painted this defendant as a multiple murderer and blackguard. The affidavit asserted also that the article in question revived earlier publicity which occurred at the time of relator's arrest some months before, which, but for the later article, 'may have died down.' However there was no proof that the later article, published in the Brooklyn edition of the newspaper, was distributed in New York County where the trial was held and, if so, produced the atmosphere of hostility that would have made a fair and impartial trial in New York County an impossibility.

 The jury to which the indictment was tried was a special jury *fn8" which by statute is required to consist of only those persons who are able 'to lay aside an opinion or impression formed from newspaper reading or otherwise, (and) to render an impartial verdict upon the evidence, uninfluenced by any such opinion or impression * * *.'

 The offending article appeared, not during relator's trial but eight days prior thereto in one metropolitan evening daily apparently (in the absence of proof to the contrary) distributed in a county and borough of New York City from which none of the jurors who tried relator could have been drawn. In most cases the offensive article appears during the trial when its effect on the jury can no longer be tested and the court must be content with the admonition to the jury to ignore it. *fn9"

 There is nothing in the record to sustain the relator's counsel's assertion in his affidavit on the motion for change of venue or adjournment of the trial, that the article in question and the publicity which attended the relator's arrest 'months ago' and which 'may have died down * * * created * * * a very hostile attitude in the community against him.' The bare statement alone is insufficient. *fn10"

 Turning thence to the assertion in the same affidavit that a fair trial was then impossible because 'each prospective juror must have seen these published articles or some person may have discussed such news reports with him' the record belies the claim. The examination of jurors on their voir dire has been said to be the best test as to whether local prejudice exists. *fn11" The interrogation of each prospective juror on the voir dire in criminal trials in New York state courts is not normally made part of the printed record on appeal. It was not in this case. This court directed the District Attorney of New York County to supply the minutes of the examination of each juror and alternate juror ultimately accepted and sworn. That transcript shows that full opportunity was accorded to and exercised by relator to obtain by a searching inquiry a jury composed of talesmen who had either never read the article or, if they had, recalled having given it only scant notice. Every juror and alternate sworn was declared to be acceptable to the relator.11A

 Thus, the relator was tried by a fair and impartial jury *fn12" to which the court stated in its charge, without any exception having been taken thereto, that 'nothing outside of that evidence (verbal testimony and exhibits) should be considered by you in your deliberations.'

 The record herein fails by far to establish that clear showing of abuse by the Court of General Sessions in denying the motions for change of venue or adjournment of the trial which would warrant a disturbance of the verdict by habeas corpus. ...

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