Gonzales v. Beto/Concurrence Stewart

[p1052] MR. JUSTICE STEWART, with whom MR. JUSTICE DOUGLAS and MR. JUSTICE MARSHALL join, concurring in the judgment.

A gas station attendant was shot to death during the course of a holdup in Dawson County, Texas, on a February night in 1956. Five years later the petitioner was arrested, tried, and convicted of the crime. The prosecution's case against the petitioner rested almost totally upon the testimony of the county sheriff. The sheriff testified to the authenticity of a written confession that he said had been dictated and signed with an "X" by the petitioner. The witness insisted on cross-examination that, although the petitioner could not read or wright, and had some difficulty speaking and understanding English, he had indeed dictated the rather complex confession and had understood what he was signing. Only one other witness, who corroborated a part of the sheriff's testimony, connected the petitioner with the crime.

The county sheriff, however, played a dual role at the trial, for he was not only the key prosecution witness [p1053] against the petitioner, but the bailiff of the jury as well. In the latter capacity, he was responsible for the care and protection of the jurors. He had, therefore, substantial and continuing contact with and authority over them during the entire course of the trial. On several occasions, he conducted them in and out of the courtroom on the instructions of the judge. Once, the judge even asked him to step down from the witness stand, where he was undergoing cross-examination, in order to retire the jury. In his role as bailiff, the sheriff walked with the jurors to a local restaurant for lunch, conversing with them on the way. At the restaurant, he ate with them in a private room, where the conversations continued. Late in the afternoon, while the jurors were deliberating in the case that turned so largely on their assessment of the sheriff's credibility, they asked the sheriff, as bailiff, to bring them soft drinks in the jury room, which he did.

The petitioner has now sought federal habeas corpus relief, claiming that the sheriff's dual role as key prosecution witness and jury bailiff and his substantial association with the jurors with the trial infringed the petitioner's right to due process of law under the doctrine of Turner v. Louisiana, 379 U.S. 466. In Turner, two deputy sheriffs served identical dual roles as prosecution witnesses and jury custodians, testifying as to the [p1054] circumstances of the defendant's confession while shepherding the jurors through a three-day trial. During the trial, the jury was sequestered and was in "close and continual association" with the deputies. Id., at 468. "The deputies ate with them, conversed with them, and did errands for them." Ibid. This Court held that the prejudice inherent in that situation violated the defendant's due process right to a fair trial before an impartial jury.

After the evidentiary hearing in the present case, the District Court denied the petitioner's habeas corpus application. A divided Court of Appeals affirmed the denial. 445 F. 2d 1202. Both courts held that the particular facts of the petitioner's case distinguished it from Turner, since the association of the key prosecution witness with the jurors as their custodian during the petitioner's one-day trial was somewhat less extensive and somewhat less intense than the association of the deputy sheriffs with the sequestered jury during the three-day trial in Turner.

Turner, of course, did not set down a rigid, per se rule automatically requiring the reversal of any conviction whenever any Government witness comes into any contact with the jury. The Court's opinion specifically indicated that association with the jury by a witness whose testimony was "confined to some uncontroverted or merely formal aspect of the case for the prosecution" would hardly present a constitutional problem. Id., at 473. And it indicated that a mere "brief encounter," by chance, with the jury would not generally contravene [p1055] due process principles. Ibid. For, as pointed out in dissent today, certain chance contacts between witnesses and jury members, while passing in the hall or crowded together in an elevator, are often inevitable.

But the Court in Turner was not dealing with just any prosecution witness coming into any contact with the jury. Rather, it was dealing with crucial witnesses against the defendant who associated with the jurors as their official guardians throughout the trial. Turner established the simple principle that association of that particular sort cannot be permitted if criminal defendants are to be afforded due process of law.

At the heart of our holding in Turner lay a recognition of the great prejudice inherent in the dual role of jury bailiff and key prosecution witness: "'It would have undermined the basic guarantees of trial by jury to permit this kind of an association between the jurors and two key prosecution witnesses who were not deputy sheriffs. But the role that Simmons and Rispone played as deputies made the association even more prejudicial. For the relationship was one which could not but foster the jurors' confidence in those who were their official guardians during the entire period of the trial.' Id., at 474." Our adversary system of criminal justice demands that the respective roles of prosecution and defense and the neutral role of the court be kept separate and distinct in a criminal trial. When a key witness against a defendant doubles as the officer of the court specifically charged with the care and protection of the jurors, associating with them on both a personal and an official basis while [p1056] simultaneously testifying for the prosecution, the adversary system of justice is perverted.

Naturally, the extent and intensity of a bailiff's association with a jury will vary from case to case. But, in the petitioner's case, I cannot say that it was by any means de minimis. Although the trial lasted only one day and the jury was not sequestered with the county sheriff, the association between the jurors and the witness-bailiff was an extended one, and the duality of the witness-bailiff's roles was inevitably driven home to the jury. And, although the witness-bailiff may not have spoken to the jurors about the case itself outside the courtroom, Turner makes clear that even if he "never did discuss the case directly with any members of the jury, it would be blinking reality not to recognize the extreme prejudice inherent in this association throughout the trial between the jurors and [this] key witness for the prosecution." 379 U.S., at 473. It is enough to bring the petitioner's case within the four corners of Turner that the key witness for the prosecution also served as the guardian of the jury, associating extensively with the jurors during the trial.