Harold Hitz Burton

“ In the instant case, notwithstanding the fact that competent counsel for petitioner did not use all of his peremptory challenges after a searching examination of prospective jurors on voir dire, and did not seek a continuance of the trial or a change of venue, petitioner asks this Court, in effect, to infer that the news coverage of the robbery and proceedings prior to petitioner's trial, including the Foster-Zeitz trial, created such an atmosphere of prejudice and hysteria that it was impossible to draw a fair and impartial jury from the community or to hold a fair trial. ”

“ We agree with the Court of Appeals that petitioner attaches too much significance to Judge Boyer's conduct. Judge Boyer's presence on the bench, particularly in the light of the long-established practice for both judges to sit on the bench at the beginning of each session to dispose of miscellaneous business, did not amount to a denial of due process. Nor did his subsequent presence on the bench or in the courtroom make out a denial of due process. Under the cases cited earlier, [10] petitioner must show that he was prejudiced in some way by the judge's presence. ”

“ Zeitz, not petitioner, did the actual killing on which petitioner's trial was based, and (2) petitioner's participation in the robbery being uncontested, the only real issue at his trial was whether he should suffer the death penalty or life imprisonment which, under the Pennsylvania statute, was a question for the jury. If these facts be kept in mind, I think that the Court, in holding that the case presents no violation of due process, has disposed of Judge Boyer's conduct too lightly. ”

“ The failure of petitioner's counsel to exhaust the means provided to prevent the drawing of an unfair trial jury from a community allegedly infected with hysteria and prejudice against petitioner, while not dispositive, is significant. ”

“ Under consideration was a difficult question of law on the admissibility of evidence of other offenses * * * in view of the Act of July 3, 1947, P.L. 1239, 19 P.S.Pa. § 711 note. Judge Boyer indicated his thinking on the matter. Upon objection by counsel the discussion ended; Judge Keller ruled; Judge Boyer left the bench shortly after and did not return during the remainder of the trial. It may be that during the Foster-Zeitz trial Judge Keller shortly after 9:30 A.M. June 2 * * * listened to but did not express any opinion during a similar discussion. ”

“ Another protection is available through the severance of the trials of the defendants and through continuances of the respective trials. Still another means of protection is that of a change of venue for proper cause. ”