Gonzales v. Beto/Dissent Rehnquist

[p1056] MR. JUSTICE REHNQUIST, whom MR. JUSTICE WHITE joins, dissenting.

In order to reverse summarily the state court conviction of a confessed murderer, the majority in this case chooses to convert a salutary principle into a rigid rule [p1057] unjustified by considerations of constitutional policy or fairness. I must respectfully dissent.

Petitioner Rudy Gonzales was convicted of murder after a trial by jury in the District Court of Dawson County, Texas. The case was not a complicated one. The State's evidence consisted primarily of petitioner's signed and witnessed confession, admitting his complicity in an armed robbery and murder of the proprietor of a local service station. The evidence showed that the police had warned petitioner of his rights before he made this confession, and there is no suggestion that the statement was in any way coerced.

In cross-examining the sheriff who obtained the confession, petitioner's counsel questioned whether petitioner's command of the English language had been sufficient for him to understand what occurred at the time of the confession. The sheriff responded that while petitioner had not spoken perfect English, he had been able to comprehend and answer sensibly all the sheriff's questions. The defense presented no evidence to the jury, which found petitioner guilty within 10 minutes after the close of the case.

Petitioner's sole claim to habeas relief is that he was deprived of due process of law because the sheriff of Dawson County at that time also served as bailiff of the jury. In order to sustain this claim, petitioner seeks to have this Court extend the doctrine of Turner v. Louisiana, 379 U.S. 466 (1965).

In Turner, two deputy sheriffs who testified as to the circumstances of the defendant's confession served as jury bailiffs throughout the three-day trial. During this period 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. Defendant's counsel repeatedly argued against this practice at trial, but the [p1058] trial judge refused to halt the deputy sheriffs' association with the jury. Under such circumstances, this Court found a denial of due process and reversed the convictions.

Turner did not, however, establish a rigid, per se rule automatically requiring the reversal of any conviction whenever a Government witness comes into contact with the jury. Indeed, certain chance contacts between witnesses and jury members—while passing in the hall or crowded together in an elevator—may be inevitable. Although such contacts may be undesirable, as Judge Learned Hand stated, "when it appears with certainty that no harm has been done, it would be the merest pedantry to insist upon procedural regularity." United States v. Compagna, 146 F. 2d 524, 528 (CA2 1944), cert. denied, 324 U.S. 867 (1945).

The Court in Turner recognized that there is a continuum of potential prejudice resulting from different types of contacts. It emphasized that the case before it dealt "not with a brief encounter, but with a continuous and intimate association throughout a three-day trial." 379 U.S., at 473. The Court granted relief only after analyzing the specific factors that might have resulted in prejudice to the defendant.

In the instant case it is undisputed that the sheriff never discussed the case with any member of the jury. As bailiff he escorted the jury to the jury room on several occasions. After the jury had found petitioner guilty and while it was considering the penalty, the sheriff responded to the jury's request for some soft drinks. This contact with the jury consisted solely of the sheriff walking into the room, placing the bottles on the table, and immediately leaving the room. There was no conversation beyond an exchange of formal pleasantries. Finally, and perhaps most significantly, the sheriff accompanied the jury to lunch.

[p1059] As Turner noted, under certain circumstances a series of such informal contacts between witness and jury can be prejudicial. A jury member is more likely to question the credibility of an unknown Government witness than that of a person whom he has come to know and like after extended association. But in the present case the sheriff's contacts with the jury were far less prejudicial than in Turner. First, viewed quantitatively, the amount of contact involved here appears closer to a "brief encounter" than to the "continuous and intimate association" emphasized there, where the jury was sequestered with those witnesses for three days. Secondly, it is important to note that this is not a case where jurors became personally acquainted with the sheriff because of his role as bailiff. Indeed, prior to the trial which took place in Lamesa, Texas, a town of only about 13,000 people, the sheriff knew personally every single member of the jury. I find it impossible to conclude on this record that the sheriff's casual lunchtime conversation with people he already knew deprived petitioner of his constitutional rights.

By applying the Turner principle to the facts of this case, the Court converts Turner's pragmatic approach into an almost insurmountable per se rule. Yet, this case decisively demonstrates the error of following such a quasi-legislative approach. After the decision in Turner, the Texas Legislature passed a statute forbidding a Government witness to serve as bailiff. Tex. Code Crim. Proc. Art. 36.24. This statute had prospective application only, and thus did not affect Gonzales' trial, which had taken place in 1961. In this manner the legislature was able to prevent a problem from arising in the future, without adopting a blunderbuss approach which would upset final convictions whose reliability and fairness could not reasonably by questioned. The legislators left to the courts the job of reviewing [p1060] past cases, using the more practical, flexible Turner approach.

Applying this case-by-case approach, it is hard to discern any unfairness in Gonzales' trial. Indeed, unlike Turner, Gonzales' counsel never raised any objection at trial to the sheriff's activities, although they were completely open and obvious. While this failure to object might not preclude petitioner's raising the issue now, it does seem to indicate a recognition at the time by all concerned that there was not in fact any dangerous objectionable impropriety taking place.

Today's ruling bids fair to swell the ever-mounting volume of constitutional litigation with which the courts of this country must deal. Turner's reliance on Irvin v. Dowd, 366 U.S. 717 (1961), leaves open the inference that the gist of the claim of constitutional deprivation depends, not on the fact that the particular State's witness was a custodian of the jury, but on the fact that the State presumably failed to insulate the jury from all contact with the State's witnesses during the trial. Thus all of the unintended but virtually inevitable contacts between the State's witness, prosecuting attorneys, and the jurors during trial recesses could become potential constitutional infirmities in a conviction. Today's decision may well convert into Fifth or Fourteenth amendment claims many matters that have in the past been dealt with quite satisfactorily by the trial judge determining on a motion for mistrial whether or not there was prejudice. Cases dealing with the issue in the past do not suggest that juror-witness contacts automatically raise issues of constitutional dimension. See, e.g., Jordan v. United States, 133 U.S. App. D.C. 102, 408 F. 2d 1305 (1969); State v. Miles, 364 S.W. 2d 532 (Mo. 1963). See generally Annot., 9 A.L.R. 2d 1275 (1966).

After revealing the activities of the deputy sheriffs in Turner, 379 U.S., at 473, the Court stated that "it [p1061] would be blinking reality" to ignore the inherent prejudice here. In my view, it is "blinking reality" to hold that petitioner here was denied a substantial constitutional right at the trial of his case. The Court having determined that this matter should be treated summarily and without argument, I would affirm.