Turner v. Louisiana/Dissent Clark

by Tom C. Clark

United States Supreme Court

379 U.S. 466

Turner  v.  Louisiana

 Argued: Nov. 19, 1964. --- Decided: Jan 18, 1965

Mr. Justice CLARK, dissenting.

It is with regret that I dissent in this case. If I were sitting on the Supreme Court of Louisiana I would vote to reverse it and do everything possible to put a stop to the practice of permitting an officer who testifies in a case also to be in charge of the jury.

However, I cannot say that where no prejudice whatever is shown-as is the case here-the practice reaches federal due process proportions. I understand that it has the approval of the highest courts of a number of other jurisdictions ^[1] and is recognized by Wharton, American Jurisprudence and Corpus Juris Secundum. ^[2] Indeed, in a similar case from the Tenth Circuit, ^[3] in which this Court denied certiorari in 1951, the court upheld the conviction on the ground that there was no evidence that a testifying sheriff had acted irregularly in performing as custodian of the jury.

In view of this widespread acceptance of the practice I cannot say that it is violative of the Fourteenth Amendment's Due Process Clause. Cf. my dissent in Rideau v. State of Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963).

Notes

1. E.g., Hendrix v. State, 200 Ark. 973, 141 S.W.2d 852 (1940); State v. Hart, 226 N.C. 200, 37 S.E.2d 487 (1946); Newby v. State, 17 Okl.Cr. 291, 188 P. 124 (1920); Underwood v. State, 118 Tex.Cr.R. 348, 39 S.W.2d 45 (1931).
2. 5 Wharton's Criminal Law and Procedure § 2109, at 290, n. 2 (Anderson ed. 1957); 53 Am.Jur., Trial, § 858, at 625; 23A C.J.S.C.riminal Law § 1352, at 946. See also Ann.Cas.1912C, at 882; Ann.Cas.1917B, at 254.
3. Odell v. Hudspeth, 189 F.2d 300, cert. denied, 342 U.S. 873, 72 S.Ct. 116, 96 L.Ed. 656 (1951).