author: RUSSELL, Circuit Judge:

text:
    Thomas Carlton WANSLEY, Appellee, v. A. E. SLAYTON, Superintendent of the Virginia State Penitentiary, Appellant.
    No. 73-1151.
    United States Court of Appeals, Fourth Circuit.
    Argued May 8, 1973.
    Decided Nov. 8, 1973.

      Gilbert W. Haith, Asst. Atty. Gen. of Va. (Andrew P. Miller, Atty. Gen. of Va., on brief), for appellant.
    William M. Kunstler, New York City (Philip J. Hirschkop, Alexandria, Va., and Charles M. L. Mangum, Lynchburg, Va., on brief), for appellee.

      Before BOREMAN, Senior Circuit Judge, and RUSSELL and FIELD, Circuit Judges.
   RUSSELL, Circuit Judge:

The petitioner is a state prisoner, convicted of rape and robbery in the Corporation Court of Lynchburg, Virginia, in March, 1967. The alleged offense occurred in December, 1962. The petitioner had been tried twice earlier. At the first trial in February, 1963, he was convicted but his conviction was reversed by the Virginia Supreme Court. Wansley v. Commonwealth (1964) 205 Va. 419, 137 S.E.2d 870. The second trial on the robbery charge in October, 1966, resulted in a mistrial. In this third trial, held almost five years after his alleged offense, the petitioner was convicted. He appealed his conviction to the State Supreme Court, which affirmed and unsuccessfully sought certiorari in the United States Supreme Court. He then filed this proceeding in the District Court. He was granted habeas relief by the District Court and the Commonwealth has appealed. We reverse with directions to dismiss the petition.

The District Court based its grant of relief on three grounds: 1. Prejudicial pre-trial publicity; 2. Improper admission of evidence; and 3. Illegal grand jury. We shall consider seriatim these grounds.

“In the instant case human life is involved, indeed the life of an ignorant boy 17 years of age has been declared forfeited, and the question to be determined is whether or not the accused, who has been sentenced to suffer the extreme penalty, has had that fair and impartial trial guaranteed to him by our constitution.”

I.

The first position asserted by the petitioner and upheld by the District Court was that the trial court denied him the right to a fair and impartial trial by refusing his motion for a change of venue based on prejudicial pre-trial publicity. It is well established that due process requires that an accused receive a trial by a fair and impartial jury “free from outside influences” ; and if there has been publicity which, by reason of its impact on the jury, raises the “reasonable likelihood” or probability that the accused has been prejudiced in his right to a fair trial, the trial court is obligated to take appropriate steps to determine whether in fact the accused can secure under the circumstances a fair trial. Whether there has been such prejudicial publicity requiring action by the Court is to be determined by an evaluation of “the totality of the surrounding facts” in the matter. Ordinarily, under such a rule, the evaluation will be based both on the pre-trial publicity complained of and on its impact, if any, on the jury, as developed through adequate voir dire examination of the jurors. The recency of prejudicial publicity is important in determining whether such publicity is likely to affect an accused’s right to -a fair trial. Obviously, where considerable time has elapsed since publication, the probability or likelihood of impact is appreciably lessened. This has been recognized in the construction given Rule 21(a), Federal Rules of Criminal Procedure, authorizing a change of venue in federal criminal trials where there has been impermissibly prejudicial pre-trial publicity. To warrant a change of venue under this rule, the publicity must have been “recent, widespread and highly damaging to the defendants.” 1 Wright, Federal Practice and Procedure, § 342, p. 623. The same principle has been applied where State trials were under review on due process grounds. Uniformly, in the State trials, in which federal habeas relief has been sustained by the Supreme Court on the ground of prejudicial publicity, the inflammatory and prejudicial publicity has been close in time to the actual trial. Thus, in Irvin v. Dowd, supra (366 U.S. 717 at p. 725, 81, S.Ct. 1639, at p. 1644), “a barrage of newspaper headlines, articles, cartoons and pictures was unleashed against him during the six or seven months preceding his [the defendant’s] trial.” In Sheppard v. Maxwell, supra (384 U.S. at p. 333, 86 S.Ct. 1507), the massive prejudicial publicity continued through the trial itself, to all of which the jurors trying the case were exposed. Beck v. Washington (1962) 369 U.S. 541, 82 S.Ct. 955, 8 L.Ed.2d 98, presents the reverse situation and prompted a contrary result. There, it was concluded that a lapse of nine and a half months was sufficient time for the impact of any prejudicial publicity to subside. Taken as a whole, then, the relevant decisions of the Supreme Court, as well as of lower federal courts, emphasize, as does the Federal Criminal Rule, that re-cency is a critical factor to be considered in connection with any claim of pre-trial prejudicial publicity. Finally, the burden of establishing prejudicial pre-trial publicity rests on him who asserts it. Whether the defendant has sustained that burden is a matter to be independently evaluated, on appellate review, on a consideration of the record.

The pre-trial publicity on which the District Court predicated its findings is identified and discussed in its opinion. That prejudicial of the accused’s claim of innocence was published largely “within two weeks after Wansley’s arrest.” It followed a series of rapes and robberies in the community apparently committed by the same person. It was stated in the record that four separate rapes had been committed. Three whites and a black were the victims. Naturally, there was considerable publicity. When Wansley in the latter part of 1962 was arrested and charged with the crimes, his apprehension and arrest were given a great deal of publicity by the local press. His picture was published under the caption, “Rapist Caught”. The police authorities were quoted to the effect that the petitioner had “confessed to raping two women and attacking one.” It was stated that' he had retraced his trail of crime for the authorities. There were other alleged details given in these articles in late 1962 and early 1963. As the District Court found, there can be little question that these articles were prejudicial to accused’s rights in any trial held quickly thereafter. The petitioner’s first trial followed close on their publication. But we are not concerned with that trial or its fairness; the Virginia Supreme Court reversed the petitioner’s conviction at that trial. And the prejudicial publicity which preceded such trial took place almost five years before the trial with which this petition is concerned. This publicity, concededly adverse and prejudicial can, under no possible theory, be regarded as “recent” as it relates to petitioner’s trial in 1967. If a proper remedy .for such adverse publicity is, as Sheppard suggests, to “continue the case until the threat [of the adverse publicity] abates”, certainly a trial almost five years later represents an appropriate delay; it undoubtedly is far more than was found in Beck to be sufficient to offset widespread publicity of a very damaging character. Moreover, between the trial in 1963 and the trial in 1967, newspaper interest in Wansley’s case — and we may assume local interest, too, for otherwise the press would not have been so reticent — abated and there were only occasional references to his case and then only when some court proceedings were imminent. Any specific newspaper references to the petitioner made during this period, as they are described in the District Court’s opinion, were matter-of-fact statements, clearly not flamboyant or inflammatory. They consisted primarily of descriptions of the petitioner as “twice-convicted”, included in a report that he was to be retried. So far as the opinion of the District Court would indicate, there was no reiteration of any statement that petitioner had confessed; no details of the alleged crime were set forth; there was no reference to any testimony at the prior trials.' Too, the facts published were accurate: The petitioner had been “twice convicted” and he was to be “retried”. The petitioner complains, though, that the news articles should have explained that his two convictions had been reversed. It would seem that this would have necessarily followed from the statement that he was to be “retried”. There would have been no occasion for a retrial had his convictions not been reversed. It is scarcely to be assumed that such sparse references to the petitioner as these between 1963 and 1967 could have created an atmosphere of community prejudice against the petitioner. What was printed in the local press in this period was the normal court items that appear regularly in the press. To find such so prejudicial as to render a trial held in the community where they were published violative of due process would mean that few trials could ever be held in a land where freedom of the press is considered invaluable. The most strongly pressed complaint of the petitioner on publicity in the period from 1963 to 1967 deals with comments published from time to time, not about the petitioner, but about one of his counsel. Whenever the press published the information that petitioner was to be tried, it often referred to one of his counsel, a national figure whose name had often appeared in the news, as an attorney who “has been linked on numerous occasions with Communist-front organizations and efforts.” It is doubtful, however, that any pre-trial reference in the press to an accused’s attorney in the absence of any prejudicial or unfair comment on the accused himself or the merits of his offense, can justify a finding that the accused’s right to a fair trial has been so prejudiced that due process is violated.

“By direct contrast, the adverse publicity in the present case appeared several months prior to the trial and the importance of this time-lag cannot be overlooked. Both the Supreme Court and this court have indicated that the length of time between the publication of adverse publicity and the empaneling of the jury is a significant factor in assessing claims of prejudice resulting from pre-trial publicity [citing cases]. Since the articles involved here were twelve weeks old at the time the jury was empanelled, it is highly unlikely that they were retained in the memories of the jurors.”

The District Court made reference, also, in its opinion on this point, to two other items, neither of which it would seem is particularly relevant. One was an editorial in the local papers, answering a criticism leveled at those papers, by the student publication at a local college. The editorial was published on April 4, 1967, some week or more after the petitioner’s trial. Manifestly, it could have had no impact on the defendant’s trial. The other item involved a petition signed and published by a large number of “prominent Lynchburg citizens.” In this petition, the local press was soundly criticized for contributing to the “frustration and bitterness” developing among the Negro citizens by the paper’s policies. When this petition was prepared is not clear from the record but in any event practically every signer of the petition affirmed that the petition was without reference to this case. Moreover, the petition, signed as it was by what the District Court found was such an influential section of the local citizenry, demonstrated rather convincingly that the local press had many powerful detractors and critics in the local community and could not be taken as an accurate or reliable barometer of local opinion.

To summarize the record on the extent and nature of pre-trial publicity as specified and relied on in the opinion of the District Court: The newspaper coverage which may have been prejudicial to petitioner occurred almost five years before the trial in question; all recent news accounts, though including perhaps derogatory references to one of petitioner’s counsel, were restrained and matter-of-fact in any references to the petitioner himself and included no adverse comments on the issue of his actual guilt; there were none of the flagrant violations committed on the eve and during the trial that marked the situations in either Rideau v. Louisiana (1963) 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663, or Estes v. Texas (1965) 381 U.S. 532 at 552, 85 S.Ct. 1628, 14 L.Ed.2d 543, reh. denied 382 U.S. 875, 86 S.Ct. 18, 15 L. Ed.2d 118, where the Court found “inherent prejudice.” So much the District Court apparently recognized for it summed up its review of the pre-trial publicity with the statement that, “[T]he existence of the above recited inflammatory press coverage would not by itself, ipso facto, indicate that a fair trial was precluded”, and it proceeded, as it was obligated to do, to a review of the voir dire examination of the jury in order to ascertain whether pre-trial publicity had had such an impact on the jury venire that an impartial jury was unavailable.

The voir dire examination of the veniremen was extensive. Painstakingly pursued by defendant’s counsel, whose expertise in this field was clearly evident, it comprises some four hundred pages of testimony, wherein every facet of a venireman’s attitude and knowledge of the case was scrupulously probed. Any venireman who expressed a prejudicial attitude toward defendant or his counsel was struck for cause. In addition, each party was allowed to use four peremptory strikes. The veniremen generally admitted that they had read news coverage relating to defendant's case at some time but did not remember any details. It was but natural that the earlier news accounts, giving details of the defendant’s alleged crime and his alleged confession, and occurring as they had almost five years in the past, would necessarily have been obscure at this time in the memory of even these veniremen who may have read them when published. None of the jurors empanelled had formed an opinion concerning petitioner’s guilt or innocence or entertained, according to their sworn testimony, any bias or prejudice against the petitioner’s attorney that might color their verdict. Actually, some of the veniremen expressed a very strong skepticism about the accuracy of items appearing in the press. The District Court found that, “[T]hose veniremen chosen for the jury panel on the face of their own statements appear to meet” the standards established for a fair and impartial jury. It'chose, however, relying on an experience of “over 22 years of trial experience” that “certain veniremen would express, in sincere belief, an impartiality when faced with the duty of sitting on a jury, despite conscious or unconscious reservations”, to find the testimony of the jurors on voir dire unbelievable. It did so because “all but a very few veniremen called had admitted knowledge of the case.” It likened the situation in this case to that prevailing in Irvin v. Dowd, supra (366 U.S. 717, 81 S.Ct. 1639), and relied on that decision for its ultimate conclusion. Particularly, it found significant that the writer of the opinion in Irvin used the phrase “cause célebre” in describing the case under review there and the editorial, published after the trial in this ‘case, used the same phrase. What the District Court overlooked, however, in its analysis of Irvin, was that the publicity involved there was “a barrage” of prejudicial “newspaper headlines, articles, cartoons and pictures * * * unleashed against him [the accused] during the six or seven months preceding his trial.” Included in this publicity on the eve of trial were press releases stating that the petitioner had confessed “to the six murders” and statements that the accused would “plead guilty if promised a 99:year sentence”. And his extensive prior criminal record was fully detailed in the newspapers on the eve of trial. This is quite different from the facts in this case. The only really damaging publicity about the accused, involving the details of his crime and his alleged confession, did not occur just “preceding his trial” but almost fiye years earlier. Moreover, it was not the fact that the jurors in Irvin had read or heard of the accused’s case that determined the Court’s decision. The Court said, “[I]t is not required, however, that the jurors be totally ignorant of the facts and the issues involved.” It went beyond this to add that, “[T]o hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror’s impartiality would be to establish an impossible standard.” What motivated the Court’s decision in Irvin was that it was established by the voir dire examination that, “\_E~\ight out of the 12 ljurors who sat on the accused’s case] thought petitioner was guilty.” In fact, some of the jurors had gone “so far as to say that it would take evidence to overcome their beliefs”. One juror said he “could not * * * give the defendant the benefit of the doubt that he is innocent.” Another testified on voir dire that “he had a ‘somewhat’ certain fixed opinion” of the accused’s guilt. On that record, the Court concluded — and this was the heart of its decision — that, “[W]here so many, so many times, admitted prejudice, such a statement of impartiality [by the jurors] can be given little weight.” There is no such showing in this case and Irvin is not analogous on its facts to this case. As we have seen, not a one of the veniremen “thought petitioner was guilty”, or expressed doubt about his ability to “give the defendant the benefit of the doubt that he is innocent.” All the jurors who served on the jury convicting the petitioner, testified unequivocally on voir dire that they would go strictly by the evidence in reaching any conclusion on the petitioner’s guilt or innocence. This case is similar to United States ex rel. Rosenberg v. Mancusi (2d Cir. 1971) 445 F.2d 613, cert, denied 405 U.S. 956, 92 S.Ct. 1186, 31 L.Ed.2d 234. There the prejudicial publicity occurred about eight months before trial. All the jurors selected “vaguely recalled the news coverage of the case” but only one recalled any details of the crime and he “insisted that he could render a verdict on the facts elicited at trial.” After quoting from Irvin, the Court found the jury competent. We think it equally clear, again under Irvin, properly applied, that this jury was competent and that the District Court was in plain error in concluding otherwise.

The petitioner, however, asserts that the findings and conclusions of the District Court are only to be reversed if “clearly erroneous”. The question posed by this claim of prejudicial publicity is “one of mixed law and fact” and as such is one where “the duty of the Court of Appeals” is “to independently evaluate the voir dire testimony of the impaneled jurors.” And this Court is equally able to do so, since we are in the same position as the District Judge in evaluating the record and in reviewing the findings of the State Court: Neither the District Court nor this Court has had the benefit of observing the jurors and hearing their testimony in person; both must act on the basis of the written record. Moreover, a finding is “clearly erroneous” when “the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed” ; and, on the basis of our independent review of the record — a review we are commanded to make — we are of the firm conviction that the record does not justify a finding that due process was denied the defendant in his trial because of prejudicial pre-trial publicity requiring the granting of his motion for a change of venue.

II.

The second ground on which the District Court predicated a grant of habeas relief concerns the admission of certain testimony of a juvenile court employee in Lynchburg. At the time of his arrest, the petitioner was seventeen years of age and was within the initial jurisdiction of the juvenile courts as established in Virginia. The witness was the chief probation officer of that court. Following petitioner’s arrest, his mother was notified and she came to the jail to visit him. The witness accompanied the mother. This seemingly was routine and there is no suggestion of any improper purpose in the officer’s action. When the mother saw her son she inquired whether he was guilty and spontaneously he replied in the affirmative. The officer who was standing near the mother testified to the conversation between mother and son. It is this conversation, the admission of which the District Court found constitutionally proscribed.

The State Supreme Court, on appeal, found the testimony admissible, stating (171 S.E.2d 678 at p. 684):

“Suffice it to say, in rejecting this contention, that counsel overlook, or brush aside the fact that Wansley’s spontaneous admission resulted from an unprompted question asked by his mother, not from questioning by Read or the police or any other person.”

In holding to the contrary, the District Court recognized at the outset that the admissibility of evidence at State Court trials is ordinarily “not cognizable on federal habeas corpus” and that the rule in Miranda was not applicable, but concluded that the admission of such evidence offended “fundamental fairness” because it arose out of a violation of the witness’ “role as a juvenile court officer, a parens patriae,” It relied for this conclusion on a line of cases from the District of Columbia Circuit, the first of which was Harling v. United States (1961) 111 U.S.App.D.C. 174, 295 F.2d 161, and the last, Harrison v. United States (1965) 123 U.S.App.D.C. 230, 359 F.2d 214. In those cases, however, unlike the situation here, the admission or confession, which had been held excluda-ble, had been given in response to police interrogation and the decisions did not purport to cover spontaneous statements such as was involved here. That is made clear in Harrison, where the Court pointedly remarked that “Harling puts to one side, as we do, the case of spontaneous statements. What are involved here are statements secured by police questioning and confrontation.” It is plain from this expression that the decisions from the District of Columbia Circuit recognize by implication the admissibility of the challenged evidence and sustain the result reached by the State Supreme Court. We agree.

Of course, the officer was subjected to sharp cross-examination on this testimony, and it was argued by petitioner’s counsel that the statement, if made, related to another offense. But whether the testimony was to be believed was a matter for resolution by the jury and was not a proper basis for denial of admissibility. It may be noted parenthetically that the mother did not dispute the officer’s testimony.

III.

The final basis on which the District Court acted was that the petitioner was indicted by a grand jury from which blacks were “deliberately and systematically excluded.” This, it found, violated the petitioner’s constitutional rights. In reaching this conclusion, it relied on the rule stated in Hairston v. Cox (4th Cir. 1972) 459 F.2d 1382 at 1384, cert, denied 411 U.S. 986, 93 S.Ct. 2266, 36 L.Ed.2d 963, that, “[A]dequate evidence of exclusion may be demonstrated by evidence of ‘disproportionate representation [which] was recurrent, systematic and relatively uniform in degree.’ ” And it found its standard for determining “disproportionate representation” in Stephens v. Cox (4th Cir. 1971) 449 F. 2d 657, wherein it was “stated that a two to one disparity ‘will establish a prima facie case of racial discrimination, if the disparity is coupled * * * with a showing that the selection procedure provides an “opportunity for discrimination.’ ” It concluded that, while the selection process for grand jurors in this case was “more random than that described in Witcher", and for that reason it was “reluctant to find Witcher dispositive of the issue ipso facto”, it did conclude that the “statutory scheme for grand jury selection” in this case, which was similar to that involved in Witcher and Hairston, provided “an opportunity for discrimination”. It then concluded that the undisputed record established a pattern under which there had been both a “recurrent” and “relatively uniform” “two to one [racial] disparity” in grand jury selection in Lynchburg, thereby establishing, when coupled with the opportunity for discrimination present in the jury selection process, the constitutional invalidity of the grand jury that indicted the petitioner.

Without reviewing all the conclusions reached by the District Court, it seems sufficient that, in our opinion, the record does not, by any standard of “two to one”, or any other standard of representation adopted in the authoritative decisions, establish a pattern of systematic and deliberate exclusion of blacks in the selection of grand juries in the Corporation Court of Lynchburg; and it must be remembered that the burden of establishing such pattern rests on petitioner. Swain v. Alabama supra (380 U.S. p. 205, 85 S.Ct. 824, 13 L.Ed.2d 759). In fact, the record positively establishes the contrary. It is conceded that the percentage of blacks in the Lynchburg population is approximately 23 per cent. Under the “two to one” test, as stated by the District Court, a systematic pattern of grand jury selection, in which the proportion fell below 12 per cent, would “establish a prima facie case of racial discrimination,” assuming opportunity for discrimination. The record, however, completely negatives any such finding. Grand juries under Virginia law vary in number from 5 to 7. There was uncontradicted evidence that at no time for many years before petitioner’s indictment had any grand jury in this court had less than one black. In instances, it included more but never was there less than one black. There was one black on the grand jury that indicted the petitioner. Since there were seven jurors on the grand jury that indicted the petitioner, that meant black representation on that grand jury was, stated percentage wise, 14 per cent, as against a black representation in the community population of 23 per cent. And this “more than 14 per cent” represented what had been, under the undisputed testimony, the absolute minimum of black grand jury representation in the Lynchburg Court for many years. Of course, in those cases where the grand jury consisted of five, the black population rose to a minimum of 20 per cent, and if there were as many as three blacks on a grand jury, which testimony indicated had occurred, the black proportion was greater still. But, however viewed, the disproportion never reached the point of “two to one”, which was the standard followed by the District Court in determining whether the petitioner had established his prima facie ease of disproportionate representation, or, for that matter, any “10%” rule under Swain, and there was no basis under Hairston and related cases for finding the grand jury indictment constitutionally defective.

The District Court based its finding of disproportionate representation on a statistical analysis of grand jury composition in the Corporation Court for the five year period 1962-7. This compilation began with May, 1962, about six months before the grand jury returned its indictment of the petitioner. For some reason, no attempt was made to compile figures on grand jury compositions in the five year period prior to petitioner’s indictment. This would, it seems, have been the pertinent period to review. But, even under the post-indictment compilation, the petitioner failed to make out a prima facie case. According to the compilation offered by the .petitioner there were 169 grand jurors selected in this five year period of whom 20 or 12 per cent were black. The difficulty with this statistic is that it does not purport to show the racial composition of the actual grand juries themselves, as selected over this period. The evidence established that many grand jurors'" served more than once. It accordingly became evident immediately that the use of the raw numbers of the entire jury lists for the five year period, without an examination of the actual juries empanelled is misleading. That many on the list served more than once is established by the record in this ease. Thus, the foreman of the grand jury that indicted the petitioner had served “four or five times” on the grand jury. Two had been on “several times”. It must be remembered that the testimony of the court clerk, as well as the affirmation of the Court Judge, was undisputed that, as long as they had been connected with the Court (which long preceded the indictment of the petitioner and continued long beyond the trial in question), there had been one or more blacks on every grand jury that served. That uncontradicted testimony fixed the pattern of actual selection and it gave no basis in fact for a finding of a “two to one” disproportion in racial representation. Moreover, under the petitioner’s own compilation, the underrepresen-tation did not meet the “2 to 1” test. The finding of the District Court that the undisputed evidence established a prima facie case of underrepresentation was clearly erroneous.

Reversed, with directions to the District Court to dismiss the petition for habeas relief.

      . In reversal, the Supreme Court showed great concern to protect the rights of the petitioner, observing (p. 873, 137 S.E.2d) :

      . Wansley v. Commonwealth (1970) 210 Va. 462, 171 S.E.2d 678.

      . Cert, denied 399 U.S. 931, 90 S.Ct. 2264, 26 L.Ed.2d 801 (1970).

      . Sheppard v. Maxwell (1966) 384 U.S. 333, 362, 86 S.Ct. 1507, 16 L.Ed.2d 600.

      . Sheppard v. Maxwell, supra, p. 363, 86 S. Ct. 1507.

      . Sheppard v. Maxwell, supra, pp. 358-362, 86 S.Ct. 1507.

      . Irvin v. Dowd (1961) 366 U.S. 717, 721, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751.

      . See Ignacio v. People of Territory of Guam (9th Cir. 1969) 413 F.2d 513, 518, cert, denied 397 U.S. 943, 90 S.Ct. 959, 25 L.Ed.2d 124, where, in speaking to a contention similar to that raised here, the Court said:
      “ * * * It is not sufficient to simply allege adverse publicity without a showing that the jurors were biased thereby.”
      The proper procedure is outlined in Margoles v. United States (7th Cir. 1969) 407 F.2d 727, cert, denied 396 U.S. 833, 90 S.Ct. 89, 24 L.Ed.2d 84, where the Court, after stating that, “Assuming for purposes of this opinion that prejudicial publicity was present, the question before us' is whether the procedures employed by the trial court adequately protected petitioner’s right to a fair trial,” (at 729) concluded :
      “We hold that the procedures employed by the district court at the voir dire ex-animation of prospective jurors were adequate to safeguard petitioner against the effect of prejudicial pre-trial publicity, protected his right to a fair trial, and met the standards set by the Supreme Court and by this Court in dealing with similar cases.” (p. 730)
      See, also, McWilliams v. United States (8th Cir. 1968) 394 F.2d 41, 44, cert, denied 393 U.S. 1044, 89 S.Ct. 643, 21 L.Ed.2d 593.

      . See, Blumenfield v. United States (8th Cir. 1960) 284 F.2d 46, 51, cert, denied 365 U.S. 812, 81 S.Ct. 693, 5 L.Ed.2d 692, and re-affirmed in Koolish v. United States (8th Cir. 1965) 340 F.2d 513, 526, cert, denied 381 U.S. 951, 85 S.Ct. 1805, 14 L.Ed.2d 724.
      “It is clear that the mere presence of adverse publicity does not per se establish proof of prejudice, or necessarily establish that a defendant will he unable to obtain a fair trial within the district. ‘The mere fact that a juror has read newspaper accounts relative to a criminal charge is not in itself sufficient grounds for excusing a juror.’ Finnegan v. United States, 8 Cir., 204 F.2d 105, 110, certiorari denied 346 U.S. 821, 74 S.Ct. 36, 98 L.Ed. 347. The ultimate question is whether it is possible to select a fair and impartial jury, and the proper occasion for such a determination is upon the voir dire examination.”

      . See, United States v. Bowe (2d Cir. 1966) 360 F.2d 1, 12, cert, denied 385 U.S. 961, 87 S.Ct. 401, 17 L.Ed.2d 306, reh. denied 386 U.S. 969, 87 S.Ct. 1040, 18 L.Ed.2d 127, where the Court very clearly marks out the difference between “prejudicial information during the trials” and prejudicial publicity antedating trial in distinguishing United States v. Accardo (7th Cir. 1962) 298 F.2d 133, and Coppedge v. United States (1959), 106 U.S.App.D.C. 275, 272 F.2d 504, cert, denied 368 U.S. 855, 82 S.Ct. 92, 7 L.Ed.2d 52, both of which involved “exposure of jurors to prejudicial information during the trials.”

      . The extraordinary circumstances of this case were accurately summarized in Myers v. Frye (7th Cir. 1968) 401 F.2d 18, 20, thus:
      “ * * * in Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600, no effort was made to insulate the jury from trial publicity, two jurors admitted reading highly inflammatory material, a pre-trial inquest was televised live, and prospective jurors received anonymous letters after pictures of the jurors accompanied by their names and addresses appeared in the press.”

      . See, United States v. Bowe, supra (360 F. 2d 1, at p. 11) :

      . Mikus v. United States (2d Cir. 1970) 433 F.2d 719, 723, citing Irvin v. Dowd, supra (360 U.S. 717 at 723, 81 S.Ct. 1639).

      . Irvin v. Dowd, supra (360 U.S., at p. 723, 81 S.Ct. 1639). For an interesting discussion of this subject, see Stanga, Judicial Protection of the Criminal Defendant Against Adverse Press Coverage, 13 Wm. & Mary L.Bev. 1 (1971).

      . See 384 U.S. at p. 363, 86 S.Ct. at p. 1522.

      . Wansley v. Commonwealth (1964) 205 Va. 412, 137 S.E.2d 865 and Wansley v. Commonwealth (1964) 205 Va. 419, 137 S.E.2d 870 (Carter case). There were originally two cases, both tried in 1963 and both resulting in convictions of the petitioner. After reversal, it was learned that Mrs. Flesh-man, one of the complainants, had returned to Hawaii and was unavailable as a witness for retrial. The proceedings arising out of her alleged rape were dismissed. This explains the reference to “twice convicted” and also explains why only the Carter case was retried.

      . Cf., United States v. Barber (D.C.Del. 1969) 297 F.Supp. 917, 921, aff’d. 442 F.2d 517 pp. 528-529 (reversed in part on other grounds).

      . The issue under these circumstances was phrased in United States v. Denno (2d Cir. 1963) 313 F.2d 364, 372, cert, denied 372 U.S. 978, 83 S.Ct. 1112, 10 L.Ed.2d 143 (1963), in these terms :
      “ * * * The reviewing court must determine, from a review of the entire voir dire, whether the- extent and nature of the publicity has caused such a build up of prejudice that excluding the preconception of guilt from the deliberations would be too difficult for the jury to be honestly found impartial.”

      . Before the voir dire examination began, the trial court advised counsel for the defendant :
      “As I advised you before, the Court is going to be very lenient with you, in the examination of the prospective jurors, so that if there is any way possible, the jurors can be ascertained whether or not they have any prejudice for or against the accused in this case; so that every safeguard will be met, in order to assure this accused a fair and impartial jury.”

      . Contrast the wide latitude allowed by the trial court in the voir dire examination with that in United States v. Dellinger (7th Cir. 1972) 472 F.2d 340, 375, cert, denied 410 U.S. 970, 93 S.Ct. 1443, 35 L.Ed.2d 706.

      . Because of the disqualification of all who had formed, however tentatively, an opinion, the trial court did what the trial court did in Tasby v. United States (8th Cir. 1971) 451 F.2d 394, 397, cert, denied 406 U.S. 922, 92 S.Ct. 1787, 32 L.Ed.2d 122 (1972), where the appellate court said: “We believe that the qualifications possessed by the selected jurors exceeded the requirements for an impartial jury as articulated in Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961).”

      . Wansley v. Miller, 353 F.Supp. 43 at p. 51 (emphasis in opinion).

      . 353 F.Supp. at p. 51.

      . 353 F.Supp. at p. 51.

      . 366 U.S. at p. 725, 81 S.Ct. at 1644.

      . 366 U.S. at pp. 725-726, 81 S.Ct. at 1644.

      . 366 U.S. at p. 722, 81 S.Ct. at p. 1642.

        See, also, Hale v. United States (5th Cir. 1970) 435 F.2d 737, 746, cert, denied 402 U.S. 976, 91 S.Ct. 1680, 29 L.Ed.2d 142 :
      “ * * * potential jurors need not be totally ignorant of the facts of a ease.”

      . 366 U.S. at p. 723, 81 S.Ct. at p. 1642.

        See Evans v. State of Arizona (9th Cir. 1969) 410 F.2d 1122, 1124:
      “The fact that several jurors, or all the members of a panel, have read newspaper articles relating to a case does not disqualify them as jurors. This is true even though a juror may have had a preconceived notion as to the guilt or innocence of an accused.”
      To the same effect: Reynolds v. United States, (1878) 98 U.S. 145, 155-156, 25 L. Ed. 244; Holt v. United States (1910) 218 U.S. 245, 248, 31 S.Ct. 2, 54 L.Ed. 1021; Beck v. Washington, supra (369 U.S. 541 at p. 557, 82 S.Ct. 955, 8 L.Ed.2d 98) ; Finnegan v. United States (8th Cir. 1953) 204 F. 2d 105, 110, cert, denied 346 U.S. 821, 74 S. Ct. 36, 98 L.Ed. 347; reh. denied 346 U.S. 880, 74 S.Ct. 118, 98 L.Ed. 387; Koolish v. United States, supra (340 F.2d 513 at p. 526) ; Gawne v. United States (9th Cir. 1969) 409 F.2d 1399, 1401, cert, denied 397 U.S. 943, 90 S.Ct. 956, 25 L.Ed.2d 123, reh. denied 397 U.S. 1059, 90 S.Ct. 1368, 25 L.Ed. 2d 680.

      . 366 U.S. at p. 727, 81 S.Ct. at p. 1645 (Italics added).

      . 366 U.S. at p. 728, 81 S.Ct. at p. 1645.

      . 366 U.S. at p. 728, 81 S.Ct. at p. 1645.

      . 366 U.S. at p. 728, 81 S.Ct. at p. 1645.

      . 366 U.S. at p. 728, 81 S.Ct. at p. 1645.

      . ' 445 F.2d at p. 618.

      . Irvin v. Dowd, supra (366 U.S. at p. 723, 81 S.Ct. at p. 1643) ; Sheppard v. Maxwell, supra (384 U.S. 333 at p. 362, 86 S.Ct. 1507, 16 L.Ed.2d 600) ; Gawne v. United States, supra (409 W.2d at p. 1401).

      . See, Orvis v. Higgins (2d Cir. 1950) 180 F.2d 537, 539-540, cert, denied 340 U.S. 810, 71 S.Ct. 37, 95 L.Ed. 595 (1950).
      Ordinarily, the resolution of a motion for change of venue rests with the trial court and its decision is to be reversed only for abuse of discretion or, as Irvin puts it, “where prejudice is ‘manifest’.” (366 U.S. at p. 724, 81 S.Ct. 1639) Dosek v. United States (8th Cir. 1968) 405 F.2d 405, 408, cert, denied 395 U.S. 943, 89 S.Ct. 2014, 23 L.Ed.2d 461. In United States v. Bowe, supra (360 F.2d 1, at p. 11), the Court said:
      “ * * * Whether publicity is so prejudicial that it forecloses the possibility of a fair trial is a determination which is well-suited for the trial judge since he has an opportunity to observe the impact of publicity on the jurors. Consequently, he should have wide discretion to assess such matters and his view should be determinative unless that discretion is abused.”

      . United States v. Gypsum Co. (1948) 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746.

      . Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.

      . 353 F.Supp. pp. 54, 55.

      . 359 F.2d at p. 223 (rehearing en lane).

      . As originally stated the attack was broader but the decision pf the District Court was based on the charge of racial discrimination and, on appeal, the petitioner has confined himself to this charge. It is. unnecessary, therefore, to consider the other claims.

      . 353 F.Supp. at p. 52.

      . 353 F.Supp. 53.

      . Witcher v. Peyton (4th Cir. 1969) 405 F. 2d 725.

      . 353 F.Supp. at 52.

      . 353 F.Supp. at 53.

      . 353 F.Supp. at 52, 53.

      . Cf., White v. State (1973) 230 Ga. 327, 196 S.E.2d 849, and dissenting opinion of Justice Brennan, certiorari denied (Justice Brennan, Douglas and Marshall dissenting), 10/15/73, 414 U.S. 886, 94 S.Ct. 222, 38 L. Ed.2d 134; Swain v. Alabama (1965) 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759.

      . The black representation on the list prepared by the petitioner was 12% and the proportion of blacks in the population was 23%.


source: Caselaw Access Project

author: WILLIAM E. MILLER, Circuit Judge.

license: Public Domain

text:
    James Edward KENNEDY, Petitioner-Appellant, v. Harold J. CARDWELL, Warden, Respondent-Appellee.
    No. 72-2054.
    United States Court of Appeals, Sixth Circuit.
    Argued April 4, 1973.
    Decided Oct. 30, 1973.

      Michael E. Geltner, Bruce Jacob, Columbus, Ohio, on brief, for petitioner-appellant; Joe McKeever, Salem, Ore., R. Raymond Twohig, Jr., Columbus, Ohio, of counsel.
    William J. Brown, Atty. Gen. of Ohio, Leo J. Conway, Asst. Atty. Gen., Columbus, Ohio, on brief, for respondent-ap-pellee.
    Before WEICK, MILLER and KENT, Circuit Judges.

       Judge W. Wallace Kent died May 18, 1973.

   WILLIAM E. MILLER, Circuit Judge.

This is an appeal by James Edward Kennedy, a state prisoner, from the district court’s denial of a writ of habeas corpus. Numerous issues are raised by the petitioner but only one issue requires detailed discussion.

We are met with the question whether shackling the petitioner to a uniformed deputy sheriff at his two state court jury trials denied him a fair and impartial trial by infringing the presumption of innocence in contravention of the fourteenth amendment’s due process clause of the Federal Constitution. The events preceding Kennedy’s trials began in February 1964, when he was indicted by the grand jury in Cuyahoga County, Ohio, for armed robbery. In September 1964, the petitioner was transferred from a federal institution in Illinois, where he was incarcerated under an unrelated charge, to the Cuyahoga County Jail to await trial on the armed robbery charge. On November 10, 1964, the petitioner, along with several other jail prisoners, sawed through the jail cell bars and escaped. This incident led to the defendant’s indictment on December 11, 1964, for escaping from jail and rendering a jail less secure.

Upon Kennedy’s capture about a year after he escaped, he was returned to a federal prison in Pennsylvania. Approximately one and one half years later he was removed to Ohio to stand trial on all three state charges. The first trial, for armed robbery, was apparently scheduled to commence on July 24, 1967, but on that day the state requested and received a continuance until the following day when the trial actually began. On July 24, however, defense counsel addressed the question of courtroom procedure since the defendant had been brought into court and seated at the defense table handcuffed to a uniformed deputy sheriff. A discussion on the record ensued among the attorneys, the court, the defendant and a deputy sheriff, but no sworn testimony was received' by the court.'

The defendant’s attorney stated to the court that at several pretrial hearings before the court shackles had not been necessary, that the defendant had behaved as a gentleman and that he had even taken the stand at one such hearing. Defense counsel then asserted that it was improper to bring a defendant to trial in such restraints unless there was an affirmative showing by the state of the necessity the measure. The prosecutor responded that although he did not have the defendant’s record before him at that time, it indicated that Kennedy had escaped from the Ohio Reformatory in Mansfield, Ohio, and also that he had escaped in 1964 from the Cuyahoga County Jail. He then declared: “I think that it is only proper that certain precautions are taken to see that such a thing does not happen again.”

The-Chief Deputy Sheriff then spoke to the court, referring to Kennedy’s “highly escaping abilities,” and requested the court to give the Sheriff permission to use every precaution to insure that the defendant was secured during the trial. In response to the court’s inquiry concerning what restraints he suggested, the Deputy asserted that handcuffing the defendant to a deputy was necessary. The Chief Deputy then stated : “We do not have maximum security in this Court, no bars as such to restrain him from leaving here because he could very easily without being manacled break for one of these exits, and it will require a numerous amount of deputies in the court to insure he will remain in court during this trial.” The court took the matter under advisement until the next morning when it ruled:

Upon the record of this defendant, and further taking into consideration the nature of the charge herein and the experience of our police officials with the defendant together with all other relevant facts and circumstances, including but not limited to the somewhat desperate situation involving the temperment and personal characteristics of the defendant, the Court believes and does find that the shackling of the defendant at all times during trial is necessary to prevent violence and escape.

The court gave the defendant the option to have handcuffs or leg-irons. The court also stated that its ruling was effective for both the armed robbery trial and the trial on the escape charges.

The armed robbery trial proceeded and the jury found the defendant guilty. The second trial, for escaping from jail and rendering a jail less secure, also before a jury, commenced immediately after the first and again the defendant was found guilty. The defendant appealed his convictions in the state courts. Being denied relief, he sought habeas corpus in the court below.

We start our analysis with the due process clause of the fourteenth amendment. A principal ingredient of due process is that every criminal defendant is entitled to a fair and impartial trial. Massey v. Moore, 348 U.S. 105, 108, 75 S.Ct. 145, 99 L.Ed. 135 (1954). See Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952). In order for a defendant to receive a fair and impartial trial,

[t]he principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law. Coffin v. United States, 156 U.S. 432, 453, 15 S.Ct. 394, 403, 39 L.Ed. 481 (1895)

Thus it necessarily follows that a criminal defendant is generally entitled to the physical indicia of innocence. United States v. Samuel, 431 F.2d 610, 614 (4th Cir. 1970). As the Supreme Court of Colorado stated in Eaddyv. People, 115 Colo. 488, 492, 174 P.2d 717, 718-719 (1946).

the presumption of innocence requires the garb of innocence, and regardless of the ultimate outcome, or of the evidence awaiting presentation,- every defendant is entitled to be brought before the court with the appearance, dignity, and self-respect of a free and innocent man. .

The case law dealing with the physical indicia of innocence, as- it pertains to physical restraints during the criminal trial process, may be divided into distinct factual categories. Once the cases are classified, even though each grouping is factually diverse, certain principles emerge which pervade the entire body of law making comparisons and analogies particularly apt. Also the cases within each group cite as direct authority cases within another category which reveal many contradictions within and among the various classifications, and although the same general principles control the practical application of the general rule is quite different. For this reason a discussion of the different types of cases dealing with the garb of innocence helps in analyzing the case before us.

The first category of the “garb of innocence” cases includes those involving a defendant who stands trial in shackles. See, e. g., United States v. Kress; 451 F.2d 576 (9th Cir. 1971); United States v. Thompson, 432 F.2d 997 (4th Cir. 1970); United States v. Samuel, 431 F. 2d 610 (4th Cir. 1970); Woodards v. Cardwell, 430 F.2d 978 (6th Cir. 1970); Loux v. United States, 389 F.2d 911 (9th Cir. 1968). The principle controlling this situation was stated by this Court in Woodards v. Cardwell, 430 F.2d 978, 982 (6th Cir. 1970).

The rule that a prisoner brought into court for trial is entitled to appear free from all bonds or shackles is an important component of a fair and impartial trial. And shackles should never be permitted except to prevent the escape of the accused, to protect everyone in the courtroom, and to maintain order during trial.

The historical development of the rule that a defendant should be unfettered while standing trial, except in extraordinary instances, has been traced from Virgil and the Bible through the Magna Charta and the great English legal scholars — Bracton, Coke and Blackstone —into our own jurisprudence. See Krauskopf, Physical Restraint of the Defendant in the Courtroom, 15 St. Louis U.L.J. 351 (1971). Although the original reasons underlying the English rule are not precisely clear, the American cases reveal four reasons why a defendant should not be shackled during his criminal trial. The most prevalent and important justification for the rule in this country is illustrated by and emanates from the early Missouri ease of State v. Kring, 64 Mo. 591, 593 (1877), where the Missouri Supreme Court stated:

When the court allows a prisoner to be brought before a jury with his
hands chained in irons, and refuses, on his application, or that of his counsel, to order their removal, the jury must necessarily conceive a prejudice against the accused, as being in the opinion of the judge a dangerous man, and one not to be trusted, even under the surveillance of officers.

The second reason underlying the rule was initially expressed in the first American shackling case, People v. Harrington, 42 Cal. 165, 168 (1871), where the California Supreme Court declared:

Should the Court refuse to allow a prisoner on trial for felony to manage and control, in person, his own defense, or refuse him the aid of counsel in the conduct of such defense, he would manifestly be deprived of a constitutional right, and a judgment against him on such trial should be reversed. In my opinion any order or action of the Court which, without evident necessity, imposes physical burdens, pains, and restraints upon a prisoner during the progress of his trial, inevitably tends to confuse and embarrass his mental faculties, and thereby materially to abridge and prejudicially affect his constitutional rights of defense and especially would such physical bonds and restraints in like manner materially impair .and prejudicially affect his statutory privilege of becoming a competent witness and testifying in his own behalf.

This justification was also reiterated in the second American shackling case, State v. Kring, supra, where the court, after stating the inherent prejudice flowing to the defendant when shackles are employed, added: “Besides, the condition of the prisoner in shackles may, to some extent, deprive him of the free and calm use of all his faculties.” 64 Mo. at 593.

Closely allied to the notion of abridging the defendant’s ability fully to defend himself is the idea originating in the English cases that the defendant should not be in any physical pain or torment before he is found guilty. See State v. Williams, 18 Wash. 47, 50 P. 580 (1897). Today with the use of modern restraining techniques, the validity of this reasoning is attenuated, but the fact that shackles may materially interfere with the defendant’s ability to consult orally or communicate in writing with defense counsel during trial remains a valid reason for the general rule. See People v. Mendola, 2 N.Y.2d 270, 159 N.Y.S.2d 473, 140 N.E.2d 353 (1957). The Supreme Court recognized this problem in Illinois v. Allen, 397 U.S. 337, 344, 90 S. Ct. 1057, 1061, 25 L.Ed.2d 353 (1970), where it said:

Moreover, one of the defendant’s primary advantages of being present at the trial, his ability to communicate with his counsel, is greatly reduced when the defendant is in a condition of total physical restraint.

The last reason supporting the rule against shackling the defendant in the courtroom is that it detracts from the dignity and decorum of the judicial process. In this regard the Supreme Court stated in Illinois v. Allen, supra, that “the use of this technique [shackling and gagging] is itself something of an affront to the very dignity and decorum of the judicial proceedings that the judge is seeking to uphold.” 397 U.S. at 344, 90 S.Ct. at 1061.

Two lines of decision appear in the federal cases in regard to the prejudice inhering to the shackled defendant. The most prevalent view, and clearly the better approach, are those cases recognizing the obvious fact that when a defendant is tried in shackles before a jury it is inherently prejudicial or prejudicial per se. See, e. g., United States v. Samuel, 431 F.2d 610 (4th Cir. 1970); Woodards v. Cardwell, 430 F.2d 978 (6th Cir. 1970); Loux v. United States, 389 F.2d 911 (9th Cir. 1968). Because of the inherent prejudice to the accused the earliest eases established that the burden was on the state to show the necessity of any extreme physical security measures. See State v. Kring, 64 Mo. 591 (1877); People v. Harrington, 42 Cal. 165 (1871). See also State v. Roberts, 86 N.J.Super. 159, 206 A.2d 200 (1965). The decision to shackle a defendant rests in the first instance in the discretion of the trial judge and the test on review is whether the trial judge has abused this discretion. The recent cases establish that in order for an appellate court to undertake any meaningful review at least the reasons for the trial judge’s actions should be placed on the record. See, e. g., United States v. Samuel, 431 F.2d 610 (4th Cir. 1970). Several courts, including this one, have recognized that the physical indicia of innocence are so essential to a fair trial that the better practice is to hold a hearing so that factual disputes may be resolved and evidence of the facts surrounding the decision are made a part of the record. See, e. g., Woodards v. Cardwell, 430 F.2d 978 (6th Cir. 1970).

A distinct minority of federal eases do not explicitly recognize the prejudice to the accused when he is tried in shackles, or if these cases are read implicitly to perceive the prejudice factor they nevertheless state that the mere fact of shackling is not sufficient to deny a fair trial. See United States v. Kress, 451 F.2d 576 (9th Cir. 1971); McDonald v. United States, 89 F.2d 128 (8th Cir. 1937). Which ever way these cases are read, the decisions state that the defendant must show something more than the mere fact of shackling for reversal.

Closely allied to the first group of cases are those involving the obstreperous or disruptive defendant during the actual trial. This group of cases is really a subgroup within the first category since the defendant appeared before the jury during the actual trial in physical restraints, although the restraints were not employed initially but became necessary either for security purposes to prevent the defendant from harming individuals in the courtroom, see, e. g., United States v. Bentvena, 319 F.2d 916 (2d Cir. 1963), or the defendant was so insulting, abusive and disruptive that an orderly trial was made impossible. See, e. g., Illinois v. Alien, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970).

In Allen, supra, the Supreme Court was faced with the issue of the sixth amendment right of a defendant to be present at trial in the context of a disorderly defendant who, was ejected from the courtroom by the trial judge. The Court recognized the discretion of the trial judge in dealing with such conduct and held that the defendant can lose his right to be present at trial if, after warnings by the trial judge, he continues the disruptive behavior. The Court explained three constitutionally permissible ways for dealing with such a situation: 1) binding and gagging the defendant; 2) citing him for contempt; and 3) expelling him from the courtroom.

In dealing with the matter of physically restraining the defendant during the trial, the Court emphasized that such a technique was prejudicial to the defendant, was an affront to the dignity of the judicial proceedings and reduced the ability of the defendant to communicate with counsel. The Court noted:

But even to contemplate such a technique, much less see it, arouses a feeling that no person should be tried while shackled and gagged except as a last .resort. 397 U.S. at 344, 90 S.Ct. at 1061 [Emphasis added].

This language is important because the reasons behind not shackling a defendant except as a last resort are the same in the context of a defendant’s right to a fair and impartial trial as they are in the context of a defendant’s sixth amendment right to be present at trial.

A second category of cases involving the indicia of innocence pertains to an excessive number of guards in the courtroom during a criminal trial. See, e. g., Dorman v. United States, 140 U.S. App.D.C. 313, 435 F.2d 385 (1970); United States v. Greenwell, 418 F.2d 845 (4th Cir. 1969); Burwell v. Teets, 245 F.2d 154 (9th Cir. 1957). The general rule derived from these decisions is that a defendant has a right to be tried in an atmosphere free of partiality created by the use of excessive guards except where special circumstances, which in the discretion of the trial judge, dictate added security precautions. One reason underlying this right is that guards seated around or next to the defendant during a jury trial are likely to create the impression in the minds of the jury that the defendant is dangerous or untrustworthy. See McCloskey v. Boslow, 349 F.2d 119 (4th Cir. 1965); Dennis v. Dees, 278 F.Supp. 354 (E.D.La.1968). Also the placement of guards in relation to the defendant could materially interfere with his ability to consult with counsel. However, the use of guards for security purposes, when wisely employed, provides the best means for protecting a defendant’s fair trial right and only in rare eases would greater security precautions be warranted. Since guards can be strategically placed in the courtroom when more than normal security is needed and can be hidden in plainclothes, the jury never needs to be aware of the added protection so that no prejudice would adhere to the defendant. These cases provide an excellent point of comparison since they illustrate oftentimes extreme situations which were adequately handled without the need for the much more drastic and prejudicial step of shackling.

The third group of cases includes those where the defendant was seen in shackles for a short period of time either in the courtroom or somewhere in the courthouse by the jury, by one or more jurors or by veniremen. See, e. g., United States v. Figueroa-Espinoza, 454 F.2d 590 (9th Cir. 1972); United States v. Leach, 429 F.2d 956 (8th Cir. 1970); Hardin v. United States, 324 F.2d 553 (5th Cir. 1963); Way v. United States, 285 F.2d 253 (10th Cir. 1960); Bayless v. United States, 200 F.2d 113 (9th Cir. 1952); Blaine v. United States, 78 U.S. App.D.C. 64, 136 F.2d 284 (1943). This group of cases is the least consistent and is often characterized by a rather cavalier attitude by the courts that such contentions are frivolous. See, e. g., United States v. Hamilton, 444 F.2d 81 (5th Cir. 1971). The pure shackling cases, those where the defendant was actually tried in chains, inevitably cite as direct authority this category of eases and this has in large measure led to confusing the law in this area. See, e. g., United States v. Kress, 451 F.2d 576 (9th Cir. 1971).

The courts in this third group generally refer to the rule that a defendant has a right to appear before a jury free of shackles except where the nature of the accused or the danger of escape make physical restraints necessary. However, because of the distinct factual circumstances of this third group, all the reasons underlying the general rule against shackling a defendant during a criminal trial are not present. The only danger to the accused in this group is the possible prejudice such a brief incident may engender. The degree of prejudice to the defendant in this situation is certainly much less than in the situation where the accused sits throughout his trial before the jury in shackles. Therefore, the only real question in this class of cases is the degree of prejudice affecting the defendant’s fair trial right and the general rule means little except as a policy matter.

The majority of cases, if read literally, state that such a brief and fortuitous incident is not prejudicial and requires an affirmative showing of prejudice by the defendant. See, e. g., United States v. Leach, 429 F.2d 956 (8th Cir. 1970); Hardin v. United States, 324 F.2d 553 (5th Cir. 1963); Blaine v. United States, 78 U.S.App.D.C. 64, 136 F.2d 284 (1943). Although this view to some extent ignores reality, the other reasons behind the general rule against shackling a defendant clearly do not apply here although it must be recognized that some prejudice flows to the defendant in this situation. This fact has been perceived by the First Circuit. See United States v. Larkin, 417 F.2d 617 (1st Cir. 1969); O’Shea v. United. States, 400 F. 2d 78 (1st Cir. 1968).

The present case falls into the first category of eases and under the general rule that a fair trial demands that a defendant be tried free of bonds except in extraordinary circumstances. The test on appeal is whether the trial court abused its discretion in ordering Kennedy shackled during his two state court trials. Although abuse of discretion is a somewhat nebulous standard:

[t]he term ‘discretion’ denotes the absence of a hard and fast rule. The Styria v. Morgan, 186 U.S. 1, 9, 22 S. Ct. 731, 46 L.Ed. 1027. When invoked as a guide to judicial action, it means a sound discretion, that is to say, a discretion exercised not arbitrarily or wilfully, but with regard to what is right and equitable under the circumstances and the law, and directed by reason and conscience of the judge to a just result. Langnes v. Green, 282 U.S. 531, 541, 51 S.Ct. 243, 247, 75 L. Ed. 520 (1931).

It follows as part of this definition that the exercise of discretion requires a fair knowledge and understanding of all the factual matters on which, the decision is based. Woodards v. Cardwell, 430 F.2d 978, 982 (6th Cir. 1970).

The trial court’s statement reveals that it was relying on “the record of this defendant” which incidentally included one previous escape and the Chief Deputy’s assurance that petitioner had sawed the bars of his cell on a second occasion and had been absent for about a year. The court’s statement indicates consideration of

the nature of the charge herein, and the experience of our police officials with the defendant together with all other relevant facts and circumstances, including but not limited to the somewhat desperate situation involving the temperament and personal characteristics of the defendant.

The court did of course have the nature of the charges before it — armed robbery and escape, as well as the opinions of the prosecutors and Chief Deputy Sheriff that some form of restraint was necessary. The court then found that the defendant should be shackled to prevent “violence and escape.” While the cases have laid down no definite rule as to the exact form for an evidentiary hearing to determine whether physical restraint is necessary, we think that it is preferable, except in cases where the trial process is disrupted in the court’s presence, that a formal hearing should be conducted with sworn testimony. In this way factual disputes may be resolved and a meaningful record preserved for an appeal or for collateral relief.

The district court in this case held an evidentiary hearing pursuant to the teachings of Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963). In criminal trials, where physical restraints are to be employed, the district court on collateral attack should make factual findings concerning the following issues. First, is there factual support for the trial court’s assertions pertaining to the record of the defendant, the desperate situation of the defendant, and his temperament and personal characteristics? Second, is the state courtroom and courthouse physically laid out in such a manner that less drastic means of security would suffice? Third, is the physical condition of the defendant such as to reduce or eliminate the likelihood of escape or acts of violence, making less drastic security measures the most reasonable course? And fourth, does the trial court have available less prejudicial but adequate means of security, i. e., guards?

At this point we underscore the legal principles from the prior discussion within which the decision to shackle a defendant during trial should be made. Because every criminal defendant is entitled under the fourteenth amendment’s due process clause to a fair and impartial trial there are four sound reasons underlying the general rule that a defendant should never be shackled during his trial before a jury except in extraordinary circumstances. Without repeating all of them, we note the inherent prejudice to the accused when he is cast in the jury’s eyes as a dangerous, untrustworthy and pernicious individual from the very start of the trial. Therefore, only upon a clear showing of necessity should' shackles ever be employed. One element of such necessity is that less drastic security precautions to prevent escape, even at some additional cost to the state, will not provide the needed protection. In light of the identity of reasons underlying the principle against shackling a defendant during a jury trial, and the principles for dealing with an obstreperous defendant during the trial outlined by the Supreme Court in Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970), shackles should only be used as a last resort: Therefore, in our opinion, it is an abuse of discretion precipitously to employ shackles when less drastic security measures will adequately and reasonably suffice.

While we have taken this opportunity to enunciate principles which we think should govern the use at trial of prejudicial restraints, we are not persuaded that the district court was in error in finding that the state trial judge did not abuse his discretion in permitting the petitioner to be shackled to an officer.

The state trial court was advised by officers in position to know the facts of the two previous escapes of petitioner and it was inevitable that the jury would learn of these escapes at the trial. Loux v. United States, 389 F.2d 911, 919 (9th Cir. 1968).

It was not necessary in order to adopt security measures that such measures be based on the conduct of the prisoner at the time of trial; Loux, supra, at 919, 920, disapproving State v. Kring, 64 Mo. 591.

The trial court could reasonably place reliance on the statements of the Chief .Deputy Sheriff who was responsible for security measures, and .presumably had knowledge of necessary and proper procedures.

The trial court stated its reasons for requiring a physical restraint and counsel for petitioner did not request the court to permit him to cross-examine the Chief Deputy Sheriff to test the accuracy of his statements, or to offer any evidence to rebut the deputy’s statements. Counsel also had the opportunity at the evidentiary hearing in the court below to offer testimony to establish that it was improper to order the handcuffing of the petitioner.

In a written opinion the district court discussed the evidence and determined therefrom that the state trial court did not abuse its discretion. It was found that while the petitioner had had a foot operation with a bone fusion, it was possible for him to run although with a limp. This finding was based upon petitioner’s own medical evidence and refuted his comment to the state trial judge that he was unable to run.

The burden of proof was upon the petitioner in this habeas corpus proceeding to establish that his constitutional rights were violated by the manacling. Odell v. Hudspeth, 189 F.2d 300 (10th Cir. 1951). The petitioner has not sustained this burden. Other questions raised by petitioner have been considered and are found to be without merit.

The judgment of the district court is therefore affirmed.

      . The term “shackling” is used in this opinion to mean all forms of handcuffs, leg irons, restraining belts and the like. This is the same meaning attributed to the word in ABA Standards, Trial by Jury, 93-94, § 4.-1(c) (Approved Draft 1968).

      . The defendant’s testimony at the eviden-tiary hearing in federal court on the writ of habeas corpus indicates that in March of 1967 he appeared twice in federal district court on preliminary matters in connection with charges for escaping from federal custody and neither time did he appear in shackles. This charge arose out of the same escape he was indicted for in Ohio since the defendant was in federal custody at the time.

      . After final argument defense counsel stated for the record that during the entire trial the defendant had been handcuffed to a uniformed deputy and that two deputies and one United States Marshal were present.

      . The presumption of innocence is not specifically mentioned in the Constitution but it is recognized as a component of due process. See Bentley v. Crist, 469 F.2d 854 (9tli Cir. 1972) ; Hernandez v. Beto, 443 F.2d 634 (5th Cir. 1971) ; United States v. Thoresen, 428 F.2d 654 (9th Cir. 1970) ; Government of Virgin Islands v. Lake, 362 F.2d 770 (3rd Cir. 1966). Cf. Deutch v. United States, 367 U.S. 456, 81 S.Ct. 1587, 6 L.Ed.2d 963 (1961).

      . A separate group of cases involving the shackling of a defense witness needs to be distinguished from the situation where the defendant himself is physically restrained. See, e. g., United States v. Ecquer, 459 F.2d 431 (7th Cir. 1972) ; McDonald v. United States, 89 F.2d 128 (8th Cir. 1937). See generally Annot., 75 A.L.R.2d 762 (1961) ; ABA Standards, Trial by Jury, 91-97, § 4.1 (Approved Draft 1968). The general rule for shackling witnesses is that a defendant has a right to have his witnesses appear free of shackles, except in special circumstances where there is evident danger of escape or harm to individuals in the courtroom. The decision whether to shackle witnesses is left to the sound discretion of the trial judge. The reason underlying the rule is the inherent prejudice to the defendant since it is likely the jury will suspect the witness’s credibility. The prejudice factor toward the defendant, although much less than the situation where the defendant is shackled, provides a valid point of comparison even though the shackled witness cases do not directly affect the presumption of innocence.

      . One author suggests that the old English cases and legal authorities, when closely checked, reveal that the origins of the rule against trying a defendant in shackles was not prejudice to the defendant, as is commonly supposed, but rather that punishment should never be inflicted before guilt was determined and that no torment should affect the reasoning of the accused which would abridge his ability to defend against the charge. Krauskopf, Physical Restraint of the Defendant in the Courtroom, 15 St. Louis U.L.J. 351, 351-355 (1971).
      Apparently the first reported American shackling case was People v. Harrington, 42 Cal. 165 (1871), and this case comports with . the justifications from the English precedents.

      . See also State v. Roberts, 86 N.J.Super. 159, 206 A.2d 200 (1965).

      . Mr. Justice Brennan, in his concurring opinion in Illinois v. Allen, 397 U.S. 337, 350-351, 90 S.Ct. 1057, 1064, 25 L.Ed.2d 353 (1970), stated in this regard: “It offends not only the judicial dignity and decorum, but also that respect for the individual which is the lifeblood of the law.” This reason for the rule against shackling defendants at trial is purely policy based on lessening the dignity of the judicial forum and has no direct effect upon a defendant.
      Few of the recent lower court federal cases in this category mention any reason for the rule except the prejudice factor when faced with the issue. Although prejudice to the defendant is the most obvious and serious disability suffered by the shackled defendant, the ability of the accused to have the untrammeled use of his mental faculties and his ability to consult freely with defense counsel certainly deserve mention. Therefore logic would dictate that a jury trial is not the only circumstance when a shackled defendant would be hurt (See ABA Standards, Trial by Jury, 94, § 4.1(c) (Approved Draft 1968)) but the cases are almost uniformly to the opposite effect. See, e.g., Sparkman v. State, 27 Wis.2d 92, 133 N.W. 2d 776 (1965).

      . In Woodards v. Cardwell, 430 F.2d 978, 982 (6th Cir. 1970), this Court stated: “All authorities agree that it is prejudicial for a defendant on trial to be shackled in the courtroom.” This statement is an overstatement but it does represent the majority view.

      . This case is in conflict with other earlier decisions within the same circuit, principally Loux v. United States, 389 F.2d 911 (9th Cir. 1968).

      . McDonald v. United States, 89 F.2d 128 (8th Cir. 1937), involved a shackled witness (See supra note 5) but the court considered the case as if the defendant himself was shackled during the trial. Unfortunately the court’s language has been picked up and applied to cases where the defendant was in fact shackled.

      . These decisions do 'not state how the defendant is 'to show prejudice and the rule that a jury cannot impeach its own verdict would appear to operate here to foreclose any attempt by the defendant to show he was in fact prejudiced.

      . In a concurring opinion Mr. Justice Brennan stated:
      However, I also agree with the Court that these three methods are not equally acceptable. In particular, shackling and gagging a defendant is surely the least acceptable of them. Illinois v. Allen, 397 U.S. 337, 350, 90 S.Ct. 1057, 1064, 25 L. Ed.2d 353 (1970).
      The Seventh Circuit in United States v. Esquer, 459 F.2d 431, 433 (7th Cir. 1972), a case involving the shackling of a defense witness (See stipra note 5), stated:
      While the Court in Allen allowed trial judges great latitude in determining the measures to be used to maintain order in their courtrooms, it expressed a view that judges should employ the least drastic means to reach that end. We agree with the appellant that the shackling of witnesses is an unfortunate and undesirable practice which should be employed only in cases of extreme need. [Emphasis added.]

      . The scope of this right is not clearly defined since only one ease has been found where relief was granted because of excessive guards. Dennis v. Dees, 278 F.Supp. 354 (E.D.La.1968), as interpreted by the Fifth Circuit in United States v. Henderson, 472 F.2d 556 (5th Cir. 1973).

      . The District of Columbia Circuit, sitting en banc, in Dorman v. United States, 140 U.S.App.D.C. 313, 435 F.2d 385 (1970), stated concerning the use of guards: “he [the judge] should shackle the defendants in court, whether with chains or with marshals, only on a clear showing that the defendants pose an immediate threat to the peace and order of the trial.” [Emphasis added].

      . Since veniremen or jurors see the defendant outside the actual trial in this group of cases, the individuals having custody of the accused are most often left unguided in the means employed to secure that end and the trial judge is rarely involved in this decision. But see United States v. Bankston, 424 F.2d 714 (5th Cir. 1970). In fact several state courts have determined that the manner in which the accused is transported to and from the courtroom is within the discretion of the officer having custody of the defendant. See, e.g., Marion v. Commonwealth, 269 Ky. 729, 108 S.W.2d 721 (1937). Cf. Kelley v. Oregon, 273 U.S. 589, 47 S.Ct. 504, 71 L.Ed. 790 (1927).

      . None of these cases suggests how the defendant is to meet his burden and the rule against a jury impeaching its own verdict would seem to preclude such a showing.

      . In O’Shea v. United States, 400 F.2d 78 (1st Cir. 1968), the court recognized that, if untreated, the fact that some veniremen saw the defendant outside the courtroom in shackles could materially prejudice the accused. Therefore the court outlined the . procedure to follow when such an incident occurs in order to correct it.

      . This phrase has been defined by the First Circuit in In re Josephson, 218 F.2d 174, 182 (1st Cir. 1954), as:
      “Abuse of discretion” is a phrase which sounds worse than it really is. All it need mean is that, when judicial action is taken in a discretionary matter, such action cannot be set aside by a reviewing court unless it has a definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached upon a weighing of the relevant factors. .

        See Cohen v. Young, 127 F.2d 721, 725-726 (6th Cir. 1942).