Parker v. Gladden/Dissent Harlan

Mr. Justice HARLAN, dissenting.

By not setting forth the background of this proceeding the Court has put seriously out of focus the constitutional issue involved in this case.

Parker was convicted of second degree murder on May 19, 1961, and sentenced to life imprisonment. On September 7, 1961, he addressed a letter to several jurors protesting his innocence, condemning his attorneys for incompetence, intimating that witnesses were coerced into lying, and chiding the jurors for being duped into finding him guilty. After affirmance of his conviction by the Supreme Court of Oregon on September 15, 1963 some two years after the jury verdict-Parker again set out to take his case to the jury. He furnished his wife with a tape recording in which he propounded a series of questions designed to uncover possible improprieties in the jury's deliberations. The jury had deliberated a long time and Parker had been told that their discussion was heated. Although unaware of any irregularities he commenced 'shooting in the dark.' (Tr., p. 16.) Mrs. Parker then acquired a jury list and discovered those jurors who had been most sympathetic to her husband. She invited two regular jurors and an alternate to her home to listen to the recording and discuss the case. An attorney was then retained to prepare affidavits detailing the allegations before us and to institute this postconviction proceeding. The statements before this Court were found to have been made by this apparently Elizabethan-tongued bailiff, but, contrary to this Court's assertion, the trial court found that these statements were only prejudicial in nature and not that they had a prejudicial effect. The Oregon Supreme Court did not find the trial proceedings fundamentally unfair.

This Court finds the bailiff's remarks to be in violation of the Sixth Amendment's confrontation requirement. Although I believe that 'a right of confrontation is 'implicit in the concept of ordered liberty," Pointer v. State of Texas, 380 U.S. 400, 408, 85 S.Ct. 1065, 1070, 13 L.Ed.2d 923 (concurring opinion of Harlan, J.), I cannot accede to the view that the Sixth Amendment is directly applicable to the States through the Fourteenth. As to the confrontation problem here asserted, I know of no case in which this Court has held that jurors must have been absolutely insulated from all expressions of opinion on the merits of the case or the judicial process at the risk of declaration of a new trial. Irvin v. Dowd, 366 U.S 717, 81 S.Ct. 1639, 6 L.Ed.2d 751. Even where this Court has acted in its supervisory capacity it has refused to hold that jury contact with outside information is always a cause for overthrowing a verdict, wisely preferring to allow 'each case * *  * (to) turn on its special facts.' Marshall v. United States, 360 U.S. 310, 312, 79 S.Ct. 1171, 1173, 3 L.Ed.2d 1250. The Court notes that these remarks were made by a state officer, but does not explain why the bailiff's official capacity would in this instance make him any more a 'witness' than any other person able to communicate with the jury. Thus, though I believe unintentionally, the Court's opinion leaves open the possibility of automatically requiring a mistrial on constitutional grounds whenever any juror is exposed to any potentially prejudicial expression of opinion.

Considering this case, as I would, under the doctrine of fundamental fairness implicit in the Due Process Clause of the Fourteenth Amendment, I think a different result follows. Much reliance has been placed upon Turner v. State of Louisiana, 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424. But in Turner we faced a situation in which the trial court allowed two deputy sheriffs who were key witnesses to be placed in 'continuous and intimate association' with the jury, and it would have been 'blinking reality not to recognize the extreme prejudice inherent in this' situation. 379 U.S., at 473, 85 S.Ct., at 550. There too we faced ' a procedure employed by the State' involving 'such a probability that prejudice will result' that we deemed it '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. Here no procedure adopted by the State is to be faulted and it seems clear to me that the rule of Stroble v. State of California, 343 U.S. 181, 72 S.Ct. 599, 96 L.Ed. 872, and Irvin v. Dowd, supra, should apply and a substantial showing of prejudice in fact must be made before a due process violation can be found.

On this basis the occurrences before us seem inconsequential to me in light of the eight-day trial and twenty-six-hour jury deliberation. And my feeling is confirmed by the extremely trivial evidence of prejudice amounting to no more than an assertion by one obviously highly emotional and 'guilt-ridden' juror that she might have been influenced without realizing it. '(I)t is an impossible standard to require that tribunal (the jury) to be a laboratory, completely sterilized and freed from any external factors.' Rideau v. State of Louisiana, 373 U.S. 723, 733, 83 S.Ct. 1417, 1423, 10 L.Ed.2d 663 (Clark, J., dissenting).

The potentialities of today's decision may go far beyond what, I am sure, the Court intends. Certainly the Court does not wish to encourage convicted felons to 'intimidate, beset and harass,' Stein v. People of State of New York, 346 U.S. 156, 178, 73 S.Ct. 1077, 1089, 97 L.Ed. 1522, a discharged jury in an effort to establish possible grounds for a new trial. Our courts have always been alert to protect the sanctity of the jury process. McDonald v. Pless, 238 U.S. 264, 35 S.Ct. 783, 59 L.Ed. 1300; see Castaldi v. United States, D.C., 251 F.Supp. 681. But in allowing Parker to overturn his conviction on the basis of what are no more than inconsequential incidents in an otherwise constitutionally flawless proceeding, the Court encourages others to follow his example in pursuing the jury and may be thought by some to commit federal courts in habeas corpus proceedings to interrogate the jury upon the mere allegation that a prejudicial remark has reached the ears of one of its members. Remmer v. United States, 347 U.S. 227, 74 S.Ct. 450, 98 L.Ed. 654. To any such result I cannot subscribe.

I think the Oregon Supreme Court correctly assessed the constitutional issue before us, and I would affirm its judgment.