Parker v. Gladden/Opinion of the Court
Petitioner, after his conviction for second degree murder, State v. Parker, 235 Or. 366, 384 P.2d 986, filed a petition for post-conviction relief, Or.Rev.Stat. § 138.550. At a hearing on the petition the trial court found that a court bailiff assigned to shepherd the sequestered jury, which sat for eight days, stated to one of the jurors in the presence of others, while the jury was out walking on a public sidewalk: 'Oh that wicked fellow (petitioner), he is guilty';  and on another occasion said to another juror under similar circumstances, 'If there is anything wrong (in finding petitioner guilty) the Supreme Court will correct it.'  Both statements were overheard by at least one regular juror or an alternate. The trial court found 'that the unauthorized communication was prejudicial and that such conduct materially affected the rights of the (petitioner).' The Supreme Court of Oregon reversed, finding that 'the bailiff's misconduct did not deprive (petitioner) of a constitutionally correct trial.' Or., 407 P.2d 246. We granted certiorari, 384 U.S. 904, 86 S.Ct. 1345, 16 L.Ed.2d 357. The federal question decided by Oregon's highest court is, of course, subject to final determination in this Court and we have concluded that the judgment must be reversed.
We believe that the statements of the bailiff to the jurors are controlled by the command of the Sixth Amendment, made applicable to the States through the Due Process Clause of the Fourteenth Amendment. It guarantees that 'the accused shall enjoy the right to a * * * trial, by an impartial jury * * * (and) be confronted with the witnesses against him * * *.' As we said in Turner v. State of Louisiana, 379 U.S. 466, 472-473, 85 S.Ct. 546, 550, 13 L.Ed.2d 424 (1965), 'the 'evidence developed' against a defendant shall come from the witness stand in a public courtroom where there is full judicial protection of the defendant's right of confrontation, of cross-examination, and of counsel.' Here there is dispute neither as to what the bailiff, an officer of the State, said nor that when he said it he was not subjected to confrontation, cross-examination or other safeguards guaranteed to the petitioner. Rather, his expressions were 'private talk,' tending to reach the jury by 'outside influence.' Patterson v. People of State of Colorado, 205 U.S. 454, 462, 27 S.Ct. 556, 558, 51 L.Ed. 879 (1907). We have followed the 'undeviating rule,' Sheppard v. Maxwell, 384 U.S. 333, 351, 86 S.Ct. 1507, 1516, 16 L.Ed.2d 600 (1966), that the rights of confrontation and cross-examination are among the fundamental requirements of a constitutionally fair trial. Kirby v. United States, 174 U.S. 47, 55, 56, 19 S.Ct. 574, 577, 43 L.Ed. 890 (1899); In re Oliver, 333 U.S. 257, 273, 68 S.Ct. 499, 507, 92 L.Ed. 682 (1948); Pointer v. State of Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965).
The State suggests that no prejudice was shown and that no harm could have resulted because 10 members of the jury testified that they had not heard the bailiff's statements and that Oregon law permits a verdict of guilty by 10 affirmative votes. This overlooks the fact that the official character of the bailiff-as an officer of the court as well as the State-beyond question carries great weight with a jury which he had been shepherding for eight days and nights. Moreover, the jurors deliberated for 26 hours, indicating a difference among them as to the guilt of petitioner. Finally, one  of the jurors testified that she was prejudiced by the statements, which supports the trial court's finding 'that the unauthorized communication was prejudicial and that such conduct materially affected the rights of the defendant.' This finding was not upset by Oregon's highest court. Aside from this, we believe that the unauthorized conduct of the bailiff 'involves such a probability that prejudice will result that it is deemed inherently lacking in due process,' Estes v. State of Texas, 381 U.S. 532, 542-543, 85 S.Ct. 1628, 1633, 14 L.Ed.2d 543 (1965). As we said in Turner v. State of Louisiana, supra, 'it would be blinking reality not to recognize the extreme prejudice inherent' in such statements that reached at least three members of the jury and one alternate member. 379 U.S., at 473, 85 S.Ct., at 550. The State says that 10 of the jurors testified that they had not heard the statements of the bailiff. This, however, ignores the testimony that one of the statements was made to an unidentifed juror, which, including Mrs. Inwards and Mrs. Drake, makes three. In any event, petitioner was entitled to be tried by 12, not 9 or even 10, impartial and unprejudiced jurors. See State v. Murray, 164 La. 883, 888, 114 So. 721, 723.
Mr. Justice HARLAN, dissenting.
^1 The statement was made to alternate juror Mrs. Gattman and was overheard by juror Mrs. Inwards.
^2 The statement was made to an unidentified juror and overheard by juror Mrs. Drake.
^3 Mrs. Inwards when recalled to the stand testified in response to a question by the court that 'all in all it must have influenced me. I didn't realize it at the time.'