(D.C. Civil Action No. 160-72) APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY
Van Dusen, Gibbons and Hunter, Circuit Judges
This is an appeal from the denial of a petition for a writ of habeas corpus. Appellant Doggett is confined by the State of New Jersey on a sentence following a conviction for bank robbery. At his trial the State's case consisted of pre-trial and trial identification evidence, and oral extrajudicial admissions to police officers the making of which Doggett denied. At his trial, on appeal in the state court and in the petition for habeas corpus relief which resulted in this appeal Doggett claimed that he was denied due process (1) because the trial court failed to take appropriate steps to protect the jury from the possible taint of the prejudicial newspaper publicity during the trial in violation of Sheppard v. Maxwell, 384 U.S. 333, 16 L. Ed. 2d 600, 86 S. Ct. 1507 (1966), Estes v. Texas, 381 U.S. 532, 14 L. Ed. 2d 543, 85 S. Ct. 1628 (1965), Irvin v. Dowd, 366 U.S. 717, 6 L. Ed. 2d 751, 81 S. Ct. 1639 (1961) and Marshall v. United States, 360 U.S. 310, 3 L. Ed. 2d 1250, 79 S. Ct. 1171 (1959) (per curiam), and (2) because the identification evidence both included and was the product of a March, 1968 pretrial confrontation -- identification held in violation of the constitutional standards of Wade v. United States, 388 U.S. 218, 18 L. Ed. 2d 1149, 87 S. Ct. 1926 (1967), and Stovall v. Denno, 388 U.S. 293, 18 L. Ed. 2d 1199, 87 S. Ct. 1967 (1967). The Appellate Division of the Superior Court of New Jersey rejected this contention. (Per curiam, July 19, 1971) (unpublished). The Supreme Court of New Jersey denied a petition for certification. Thus, state remedies on these issues have been exhausted. The district court, relying on the state court record, without conducting a hearing, denied relief. We reverse.
The Sheppard v. Maxwell issue
Prior to the trial Doggett entered a guilty plea. Later, he was permitted to withdraw that plea and go to trial. That trial took place between September 16, and September 20, 1968 at the county court house of Burlington County, Mount Holly, New Jersey. Mount Holly, a community of 12,713 residents (1970 census), is the county seat of New Jersey's largest but most rural county. The jury was selected and the trial commenced on September 16. On the morning of September 18, the Burlington County Times published an article containing a photograph of the Burlington County Sheriff viewing a hole in the ceiling of the detention room of the county courthouse. Under the photograph was the caption:
"A 'BREAK-OUT TRY'? -- Sheriff Francis P. Brennan gazes at huge gap in a detention cell ceiling at the county courthouse building to determine if it was an escape try. Three prisoners were in this room when a 5 x 5 foot gap was ripped out yesterday."
Under a headline "Officials Probe Jail Ceiling Hole" a news story read:
"Did three prisoners try a 'break-out' at Mount Holly?
A 5 x 5 foot section of a false ceiling around a ventilating shaft in a detention cell where the three prisoners were lodged awaiting court action was ripped out yesterday afternoon and the debris littered the floor of the third-floor room at the county courthouse.
A chair was covered with dust from the debris and stood just beneath a huge gap made in the ceiling.
'An investigation is being made to determine exactly what happened,' Sheriff Francis P. Brennan said.
He stated that this was either 'an apparent attempt to escape or malicious damage. The results of the investigation will determine what further action will be necessary.'
The three prisoners, brought over from the Burlington County Jail to a detention cell at the end of a small hall to the court where County Judge Alexander C. Wood was sitting, were identified by the sheriff's office, as follows:
Edward W. Doggett, 21, of 515 Penn St., Camden, whose jury trial was slated to begin yesterday. He had pleaded guilty previously, then changed his plea to not guilty on an armed robbery charge. The charge concerns an armed robbery, March 29, of Burlington County Savings & Loan Association, Inc., 309 Warren St. Beverly.
Doggett was alone in the detention room while the other two were in court. When the pair were returned to the cell the door was closed and the court officer resumed his duty. But, as he stood outside he heard a considerable noise, so looked inside and saw the ceiling section ripped down.
Doggett said 'it fell,' but the other two stood 'mute' the officer told the sheriff. . . ."
Thus, the article disclosed Doggett's prior guilty plea, and strongly suggested that he had attempted an escape. One could hardly imagine a combination of newspaper items more likely to suggest to the jury Doggett's consciousness of guilt.
Doggett's attorney became aware of this newspaper story during the noon recess on September 18 and called it to the attention of the trial court. The trial court then questioned the jurors en banc rather than individually in an effort to determine if petitioner had been prejudiced by the publication.*fn1 Four members of the jury said they had seen the newspaper, but not the picture or the article. Juror No. 3 had read the article. Juror No. 10 had read something about the occurrence in the detention room in another newspaper, the Trenton Times. The trial court did not establish whether or not the Trenton Times story made reference not only to the alleged escape attempt but also to the retraction of the guilty plea. Although requested to do so by counsel for Doggett, and by the prosecutor,*fn2 the trial court did not ask the fourteen jurors whether or not there had been any discussion among themselves of these articles. Motions to excuse jurors No. 3 and No. 10 immediately were denied. A motion for a mistrial was also denied. The jury was not sequestered.
On September 19 Doggett's counsel reported to the trial court that another article similar to that quoted above, except that it omitted reference to his retracted guilty plea, had been published in the September 19 Burlington County Herald, and that he had noticed a copy of this newspaper in a luncheonette then being patronized by six or seven of the jurors.*fn3 On this occasion the trial court refused to examine the jurors. A motion for a mistrial was also denied.*fn4
The trial court had been alerted by Doggett's counsel on September 16, before the start of the trial, that an incident had occurred in the detention room which would probably result in newspaper coverage. Counsel at that time had moved, unsuccessfully for an adjournment.
At the end of the charge the trial court excused jurors No. 3 and 10, indicating that they had not been excused earlier lest a third member, for whatever reason, might in the meantime have been unable to sit. No inquiry was made as to whether any of the jurors who remained had since September 18 read the Burlington County Times article, the Trenton Times article or the Burlington County Herald article. ...