US SUPREME COURT DECISIONS

Arpil 17, 1972.

On petition for writ of certiorari to the United States Court of Appeals for the Fifth Circuit.

The motion to proceed in forma pauperis is granted. The petition for a writ of certiorari is granted and the judgment is reversed. Turner v. Louisiana, 379 U.S. 466.

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 write, 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

Page 405 U.S. 1052 , 1053

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. [Footnote 1] 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 during 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 circum- [405 U.S. 1052 , 1054]

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