Earl Warren: Number 53, Wayne Turner, Petitioner, versus Louisiana. Mr. Pierson.
Allen B.Pierson, Jr.: Mr. Chief Justice Warren, and members of the Court. The facts surrounding this case are painfully clear and simple. It involves a felony murder case from the State of Louisiana. The murder occurred during the commission of an armed robbery on October 7, 1960. The facts are that the accused below, Wayne Turner, arrived at Hammond, Louisiana, hungry and broke. During the armed robbery of a Phillips 66 Service Station, the attendant at the station drew a 38 caliber revolver from his pocket and began shooting. Turner shot back and of course the attendant was killed almost instantly. Turner and his wife both confessed to the murder the following day. Both were indicted. The wife was allowed to plead guilty to manslaughter and is now out on probation. The trial of Wayne Turner lasted three days in the 21st Judicial District Court of the Parish of Tangipahoa, State of Louisiana. This is the district or trial court in the state. During these three days, the petty jury consisting of 12 men was in the custody of among other deputies or bailiffs, Deputies Rispone and Chief Criminal Deputy Hulon Simmons. Now, Deputy Rispone and Deputy Simmons were both witnesses for the prosecution in the trial of this case. Deputy Rispone testified that he was the first to arrive at the scene of the crime, that he made the official investigation and report. He further testified that he heard Wayne Turner admit to having committed the crime. He further testified that Wayne Turner had led him to the site of certain incriminating evidence consisting of a murder weapon and certain identification cards belonging to Turner. Rispone also testified in connection with establishing the chain of evidence. Deputy Hulon Simmons testified that he had received the confession which was allegedly free and voluntarily given. This is a written confession. In addition, Deputy Simmons testified as to the chain of evidence and as to certain admissions made by Turner of his guilt. A motion for mistrial and the motion for a new trial were both overruled and this Court after an adverse decision from the State Supreme Court of Louisiana granted certiorari. Both the motion for mistrial and the motion for a new trial were based basically on the fact that these bailiffs are deputies or chief prosecution witnesses but not only that that during the course of this trial, these witnesses had mingled with, had fraternized with, had become a part of and identified with the petty jury. In other words that they had conducted themselves in such a way not to shield the jury from outside communication but had actually communicated unnecessarily and visited with the jury unnecessarily themselves. The basic issue before this Court is we believe one of constitutional importance and that is does the accused in a capital case especially in a capital case have a right to a trial by jury which is untainted with the suspicion of misconduct or must the accused go further and actually proved prejudice or misconduct that these things did happen that the fraternization did take place is on question. I might point out that the same type of conduct also occurred in another Louisiana case arising out of the same trial court which was tried only months before the Turner case was tried. That was the case of State versus McAlister which is cited in my brief. These things did happen. I believe that the Louisiana courts have failed to clearly distinguish between separation and seclusion and that this imparts the counts for the error that they've fallen into. Separation is defined on page 8 of respondent's brief is the physical separation of one juror from another. Seclusion, however, means simply to be cut off from outside communication. Now, the Louisiana statute in point is revised statutes 15:394 which is set forth in full in the brief. This statute used the words “keep together.” What could these words mean except that the jury is to be kept together not to be physically separated. The statute also uses the words “secluded from outside communication.” What could this possibly mean except that the jury is not to communicate unnecessarily with members or with anyone except its on members.
Earl Warren: What was the extent of the fraternization that you've mentioned?
Allen B.Pierson, Jr.: Your Honor, the extent of the fraternization is set forth in the printed record the -- it consists of really three things. First of all, there was a separation of the jury on approximately nine occasions and three separate automobiles when they were taken to and returned from a restaurant. In addition, on of these occasions, one juror Mr. Paul Casanova was separated alone from the other jurors. In other words, it was an 11 to one separation. Mr. Casanova was in a company of deputies Simmons and Rispone on this occasion and in the company possibly of another unidentified deputy. At page 37 of the printed record, you will note that Deputy Simmons testified that while he was paying the check at the restaurant, Paul Casanova, the juror was alone with Deputy Rispone and/or some unidentified third person. We intend to show and I will develop it just a little later that under Louisiana law itself this creates a presumption of prejudice and it's certainly under the federal constitution in presumption if prejudice arises.
Arthur J. Goldberg: (Inaudible) it's a definition of your idea.
Allen B.Pierson, Jr.: Your Honor, the defense was not able to prove by the very nature of things any actual misconduct or prejudice. However, the very fact that Mr. Casanova was separated and was alone with this deputy witness who was a chief witness for the prosecution under the federal decisions in the case a presumption of prejudice sufficient to set the verdict aside. In addition under the Louisiana decisions, a mere physical separation of the jury raises a presumption or prejudice sufficient to set the verdict aside. In each of these cases, of course, the State has the opportunity to come in and to prove that there was no prejudice. However, I will --
Byron R. White: Mr. Pierson.
Allen B.Pierson, Jr.: Yes sir.
Byron R. White: Under constitutional jury?
Allen B.Pierson, Jr.: They cannot then. They're not Supreme Court cases. The case that I've reference to is the case of Little versus the United States in which the Court there said that it raises great considerations as to whether the defendant has been denied its rights under the Bill of Rights. Also important is the Maddox case, excuse me, the Morin case which was a Federal District Court case. In that case, there was involved the prosecution of a railroad baggage agent for possession of stolen property. Once it was shown at the prosecution witness, who incidentally was a very minor and unimportant prosecution witness had had lunch with the juror and just had general social intercourse wherein the court says -- said that this is sufficient to initiate the verdict.
Byron R. White: What was the nature of the -- I gather that one of the deputy testified they both have the -- jurisdiction was made by or confessions made by defendant?
Allen B.Pierson, Jr.: Yes sir. To the best of my knowledge, I believe --
Byron R. White: Is that confession of his ability to protect the appellant?
Allen B.Pierson, Jr.: I'm not sure sir whether you are referring to the admission or to the written confession.
Byron R. White: Well whatever do you want?
Allen B.Pierson, Jr.: Well, yes sir. The Louisiana law requires that confessions or admissions in order to be admissible must be proven as voluntary, voluntary given.
Byron R. White: But did you challenge the voluntari --
Allen B.Pierson, Jr.: Yes sir, we did challenge voluntariness.
Byron R. White: And the voluntariness -- the voluntariness that the resolution of the -- that the State's evidence on voluntariness is given by these two deputies?
Allen B.Pierson, Jr.: It was given by Chief Criminal Deputy Hulon Simmons.
Byron R. White: Is that one of these fellows?
Allen B.Pierson, Jr.: Yes sir. This -- he's one of the gentlemen and incidentally this is the same --
Byron R. White: Do you have a case where the testimony of the -- did the accused testified?
Allen B.Pierson, Jr.: He testified out of the presence of the jury on --
Byron R. White: On voluntariness?
Allen B.Pierson, Jr.: On voluntariness.
Byron R. White: And was his testimony and -- well, and his testimony and the testimony of the deputy then were uphold?
Allen B.Pierson, Jr.: Yes sir, very definitely.
Byron R. White: But not before the jury.
Allen B.Pierson, Jr.: The Court would not allow him to testify before the jury on that limited point.
Byron R. White: But there was no conflict between the two -- the testimony of the defendant and the deputy before the jury.
Allen B.Pierson, Jr.: Not before the jury. No sir. In the state case of State versus Hornsby, the Court was dealing with a physical separation and said, “In Tampa, cases upon a separation, misconduct and abuse will always be presumed.” Certainly in the instant case, there was a separation on at least nine occasions traveling to and from the restaurant. On one of these occasions there was an 11 to one separation and Mr. Casanova was in the company of Deputy Respone later joined by Deputy Simmons both bailiffs, both witnesses for the prosecution. It is not every separation of course which will be sufficient to set aside the verdict. What I'm really saying is that the State in some cases is successful in proving that there was no prejudice. For example, in State versus Smith, a case involving 12 jurors filing through a door, the door blew shut just before the 12 juror made it through. He opened the door. This was an accidental and momentary separation. Obviously there was no prejudice. Obviously, the verdict was not set aside. It's precisely into this niche in the law that three of the four cases cited by respondents fit and that is the State versus Sharbino. One juror remained in the jury room as the other 11 filed into the courtroom. The Court immediately sent the 11 back. They got the missing juror and immediately filed back into the courtroom. This also was a momentary and accidental separation. There was no possibility that any of the jurors could have been contacted during the separation, therefore, the verdict was not set aside. In State versus Fuller, two jurors ate at the same table with an outsider in a restaurant. It later developed that the outsider had been a member of the grand jury which had indicted the man being tried. The verdict was not set aside because the Court found positively that there was no prejudice. But even here, the presumption arose because there had been a separation. In State versus Davis and other Louisiana case, also cited by respondents, the jury was accorded in five rooms n a hotel suite. The rooms were accessible only through the room in which the deputy sheriff slept. The deputy in this case was not a witness. Therefore, even though there was a separation, because obviously, they were separated into five different rooms, the Court did not overturn the verdict because there had been no breach of the seclusion of the jury. The jury could not possibly have been contacted by an outside, a person or persons. It is interesting to note also in the Davis case that the deputy slept in a separate room. The deputy did not mingle with and fraternized with the jury. The instant case is not analogous to those cases because the separation was not momentary. It was not accidental. Certainly after the McAllister case, only a few months before this case, in the same court, involving the same sheriff's office and involving the same chief criminal deputy Hulon Simmons who had been questioned at length on this question in the McAllister case. Certainly, it was not accidental.
Earl Warren: Was -- was this Chief deputy cross examined on the trial itself and to the free and voluntary character of the confession?
Allen B.Pierson, Jr.: Yes sir, very definitely.
Earl Warren: He was -- he was cross examined.
Allen B.Pierson, Jr.: The procedure in Louisiana as I understand it is that out of the presence of the jury, the judge will hear the testimony bearing on whether or not the confession was voluntary. He will then pass upon the permissibility and the evidence will be represented to the jury in order that they may give the confession on what weight they desire, yes sir.
Earl Warren: But we -- Yes but the defense did question the accuracy of the testimony of the principal witness that is the chief deputy.
Allen B.Pierson, Jr.: Yes.
Earl Warren: On the trial before the jury.
Allen B.Pierson, Jr.: We were not allowed to do it before the jury Your Honor because we -- the Court would not allow us to place the defendant on the stand for this limited point before the jury.
Earl Warren: Now did you did cross-examine --
Allen B.Pierson, Jr.: Oh yes sir.
Earl Warren: Cross-examine the deputy?
Allen B.Pierson, Jr.: Yes sir very definitely.
Earl Warren: Who is in charge of this jury?
Allen B.Pierson, Jr.: That's correct.
Earl Warren: Have you questioned his -- questioned his veracity and accuracy of his testimony.
Allen B.Pierson, Jr.: That's right. We certainly did. There was some question. The defendant testified that he had not slept for 48 hours prior to giving the confession. And of course this was of major importance to whether or not the confession was freely and voluntarily given, yeah.
Speaker: (Inaudible) aren't you said that the Chief Justice the questioning of the deputy was in the presence or not in the presence of the jury?
Allen B.Pierson, Jr.: The questioning of the deputy was both out and in the presence of the jury.
Speaker: Both?
Allen B.Pierson, Jr.: Yes sir. The questioning of the defendant himself was simply out of the presence of the jury.
Byron R. White: (Inaudible) of the deputy on voluntary.
Allen B.Pierson, Jr.: Yes sir.
Byron R. White: But you weren't permitted to put the defendant on the stand for the limited purpose of voluntariness that would have exposed into general --
Allen B.Pierson, Jr.: That was the ruling of the trial court, yes sir. As to the matter of seclusion of the jury members from outside communication, the respondent has cited the case of State versus Migis. In this case, the doctor entered the jury room at night in order to treat a sick juror. Now, the Court said that there was no separation and there was not. However, what the report really should have said was that there was no violation of the law requiring the jury to be secluded because the doctor simply entered the room, treated the juror and left. He did not converse with the other members of the jury, swapping stories or telling jokes, planning fishing trips or what have you. He simply treated the man and left. There was no fraternization, no mingling and therefore the seclusion of the jury was not violated. In State versus Oteri practically the same circumstances. Only in this case, instead of being a doctor, he was a barber. But there again, there was no mingling, no fraternization, no separation and therefore no violation of the seclusion requirement of the state law. Now I realized that the law generally over the United States is that a bailiff simply because he is a prosecution witness is not per se precluded from acting his bailiff. However, it is the contention of the petitioners that it is one thing to be a bailiff and it is quite another to mingle with the jury and to fraternize with them unnecessarily. Certainly, if counsel for the defense or the defendant himself in that trial or any of the defendant's witnesses had so mingled with the jury, this would have been grounds for a mistrial on the part of the state. I see the red light.
Earl Warren: We'll recess now. Mr. Pierson, you may continue your argument.
Allen B.Pierson, Jr.: Thank you Your Honor. Immediately before the recess, I was pointing out to this Honorable Court that had the defendant or his counsel or his witnesses fraternized with the jury to the extent that the fraternization between the jury and the state's witnesses took place, this would certainly have been grounds for seing the -- for a mistrial could possibly also be grounds for contempt of court proceeding against the attorney who engaged in such activity. I was also saying that a witness who is also a bailiff is not per se disqualified from acting as bailiff. Ever being a bailiff is one thing and being a friend and acquaintance and renewing this friendship and acquaintanceship with the jury is quite another. The McAllister case which I already alluded to was tried in Tangipahoa Parish in the same court just a few months before the Turner case. The same objection was raised. The Chief Criminal Deputy Hulon Simmons was questioned along the same line. An appeal was taken to the Louisiana Court in the McAllister case and while that appeal was pending, the same misconduct, the same loose practice in handling the petty jury was again allowed to take place in the same court by the same men. I believe that it is --
Earl Warren: In this case?
Allen B.Pierson, Jr.: Yes sir, in the Turner case. I believe that this in itself suggests very strongly an intentional design and a prejudice against the defendant's rights. Now, mere persons of the bailiff and especially of a bailiff witness in a jury room during the actual deliberations is always to my knowledge been held as grounds for reversible error and rightly so because this prevents the free exchange of ideas among the jury members. However, in the instant case, we do not know, I don't suppose there was any that Rispone and Simmons were actually in the jury room during the deliberations. It is on this basis that the Louisiana Supreme Court distinguished the case of Tarkington versus State. It was a Mississippi case 17 Southern 768. There's another case, a very similar, and that is Shermer versus the State, 260 Wisconsin 510 51 Northwest 2d.47 a 1952 Wisconsin case. In that case, after the final charge was given by the judge and the case was in the jury's hands, the jury was taken out to supper before they actually began the deliberations. It was during this time that the bailiff who had been an important witness in the case simply set at one of the tables with some of the jurors while they ate. There was no contention, no allegation that he was in the jury room while the deliberations were actually taking place. The Court in the Shermer case set the verdict aside and I'd like to quote briefly from its opinion where the opinion in criminal trials, the officers of the state who were actively engaged in the prosecution in furtherance of their official duties as were Simmons and Rispone in the instant case. And who by their activity and attitude indicate a part of an interest in the outcome of the case, must be held to represent the state in the trial and that their conduct so far as it relates to the jury must be regarded as a conduct of the opposite party. And so it should have been in this case. Simmons and Rispone were very actively identified in the prosecution of the state's case. Both were witnesses for the state, important witnesses and both testified before the jury. That they were prejudiced possibly not intentionally so to the extent of intentionally falsifying their testimony but that they did have certain feelings as it was brought out by the testimony of Deputy Simmons on page 35 of the record where he was challenged by defense counsel on his use of the term hitting the evidence. In fact the evidence was not hidden at all, it had simply had been thrown on the ground over a wide area. It is such thing as this that color a witness' testimony that the jury must past on. The jury must pass on the credibility. The federal view has long been that prejudice will be presumed in cases where there has been a violation of the requirement that the jury be secluded from outside communication, thus, in United States versus Morin, the case that I already alluded to in the prosecution of a railroad baggage man for possession of stolen property. The conviction was set aside because the juror had communicated on a friendly basis with the government witness. It was not proven that the case had been discussed though the Court did suspicion that it had. But the Court went on to say that even so, this raises great access to the -- whether or not the defendant has had a fair trial. The same is true in the case of Wheaton versus the United States where the bailiff actually helped the jury in the mechanics of the voting procedure. Here again the verdict was set aside or no -- excuse me, I believe in this case it was remanded for a hearing as to whether or not the accused had actually been prejudiced. In the case of Little versus the United States, the stenographer read to the jury from her shorthand notes the charge or part of the charge of the judge. Certainly, the scenario for which reading only what the judge had already told the jury, it's a little difficult to see prejudice but the conviction was struck down on the grounds that the Court did not know what have actually transpired in the jury room and that perhaps the stenographer put emphasis on the wrong words or made a shorthand character. For this reason, the defendant's rights to a fair and impartial trial have been violated. The respondent in his brief approves the matters overlying the Little decisions which says that the facts here are different. Certainly they are different as to the basic facts in the case, and yet as to the rationale of the decisions, I see a very little difference of it any at all. They are all based on unauthorized and unnecessary communication between petty jurors and third persons and in some cases third persons who are witnesses which is our case here today.
Potter Stewart: The Louisiana Supreme Court opinion cites a Federal Court of Appeals decision which seems to be Odell against Hudspeth which seems to be this very case right before the Court. Is that correct, the requisite that I have read that exclusionary.
Allen B.Pierson, Jr.: I'm not sure Your Honor. I didn't -- I can't recall the case to mind at the present time.
Potter Stewart: And the circuit opinion about -- I just -- I thought perhaps you had it in mind?
Allen B.Pierson, Jr.: No sir I don't have it.
Potter Stewart: How long do this trial last?
Allen B.Pierson, Jr.: Three full days Your Honor.
Potter Stewart: Three full days.
Allen B.Pierson, Jr.: Yes sir.
Potter Stewart: And the -- was the jury -- the question that night --
Allen B.Pierson, Jr.: Yes sir under Louisiana law, the jury in a capital case is not allowed to separate.
Potter Stewart: And in addition to these two deputies did other people also have some --
Allen B.Pierson, Jr.: Other deputies who were not witnesses on the prosecution have really mingled in and out with the jury also.
Potter Stewart: How many of these?
Allen B.Pierson, Jr.: The defense counsel has no way of knowing.
Potter Stewart: You don't know.
Allen B.Pierson, Jr.: No sir.
Potter Stewart: But these two were not the sole for this --
Allen B.Pierson, Jr.: No sir, it was the -- actually the deputies in charged with the jury were in a change it will and during the recesses, there may be several deputies there sitting in the room with the jury. What we're complaining of actually is not so much the fact that the witnesses were also bailiffs with the fact that these gentlemen mingled with the jury unnecessarily. Deputy Simmons at page 36 and 37 of the record admits that he renewed all acquaintances and made new friends with the jury during the time that the trial was in progress.
Byron R. White: Can you address your position here from a narrow ground that the trial court (Inaudible)
Allen B.Pierson, Jr.: The weight of opinion is against that position sir. That's --
Byron R. White: (Inaudible)
Allen B.Pierson, Jr.: And I still think that that position should be maintained. I think it's terribly a loose practice to allow a witness to act as a bailiff.
Byron R. White: (Inaudible)
Allen B.Pierson, Jr.: That their was certainly unnecessary mingling, unnecessary separation. And that on one occasion, when Mr. Casanova was in the company of Deputy Rispone alone we don't know what happened. We can only guess and under the facts, right under the law, it would appear that this would in itself call for a reversal of the decision because the state has not shown that there was in fact no prejudice to the accused. Now under --
Earl Warren: I suppose that when they make the motion towards the beginning of the trial you would have to make it on that court ground because you wouldn't know to what extent there would (Inaudible).
Allen B.Pierson, Jr.: That's correct. Actually, defense counsel did not realized it until we saw juror Casanova alone with Deputy Rispone and it was after this when Rispone was called to testify and the judgment was again renewed when Simmons was called to testify that we did asked for mistrialed.
Byron R. White: (Inaudible)
Allen B.Pierson, Jr.: Yes sir, the same motion was renewed and again overruled. The only attempt made by the state to show that there was no separation or rather more specifically if we differentiate between separation and seclusion that there was no violation of the seclusion so as to prejudice the defendant was the testimony of Deputy Simmons who testified that he had not discussed the case with any juror. And that he had not heard Deputy Rispone discuss the case with any juror. However, Deputy Simmons' own testimony at page 37 of the record places one juror alone with Deputy Rispone who was the witness. Deputy Simmons is obviously unqualified to tell what happened on that occasion. The only attempt made with reference to Deputy Rispone was his testimony that during the ride back from Ardiles Restaurant he did not discuss the case with juror Casanova but what did he discussed, the record does not disclose that. He possibly could have discussed some other case, possibly he discussed the crime rate in general, possibly he discussed getting together later with juror Casanova for a fishing trip. This was an unnecessary fraternization. It was an unnecessary opportunity for a juror to be reached and not reached intentionally but reached more subtly. Just by the developing of a bond of friendship, a rapport between the two men.
Earl Warren: Wasn't he asked what -- what conversation did they had?
Allen B.Pierson, Jr.: To the best of my knowledge he was and the answer was rather vague to the extent that I don't know but I know it wasn't about the case, that sort of an answer Your Honor.
Potter Stewart: In this -- you pointed out that this had happened more than once in this parish in Louisiana.
Allen B.Pierson, Jr.: Yes sir.
Potter Stewart: Did it happen in the other parishes?
Allen B.Pierson, Jr.: Not that I know of sir. It could very well be.
Potter Stewart: Then the case in your -- in your Supreme Court and in any other parish?
Allen B.Pierson, Jr.: No sir.
Potter Stewart: And that there are how many from this parish?
Allen B.Pierson, Jr.: Two.
Potter Stewart: Two very recently.
Allen B.Pierson, Jr.: Yes sir, the McAllister case just several months before the Turner case. I might point out that there is an 1856 Louisiana decision entitled, let's see, State versus Judge of the Ninth Judicial District Court Pointe Coupee Parish which is cited. This was a civil litigation in which the sheriff was a necessary party to his wife's action under the peculiarities of the Louisiana common law or rather community property law, excuse me. The Court, the appellate court said that the sheriff could perform a ministerial duties of selecting the jury venire having the summons that served but that it would not be becoming for him to take charge of the jury during the trial. We believe it's not becoming in this case for these witnesses to take charge of this jury especially to take charge of and to associate and mingle with them to this extent.
Earl Warren: That likely the sheriff summon the venire in your -- in your state and in this parish?
Allen B.Pierson, Jr.: Yes sir, the deputy sheriff sanctioned. He served a summons on each member of the jury venire.
Earl Warren: Do they no -- did they have any power to select the jury?
Allen B.Pierson, Jr.: No sir, the venire (Voice Overlap) well, the normal regular venire is selected by a jury commission.
Earl Warren: Yes.
Allen B.Pierson, Jr.: And I believe that the special venires are also or --
Earl Warren: It could stand to be corrected on this.
Allen B.Pierson, Jr.: They are. I'd like to point out for the Court's special attention the case of State versus Woods which is cited in the briefs and I quoted from it at length. That case is one from the State of Indiana. It's a leading case in Indiana and it's practically on all force with the case at bar. In that case, the deputy sheriffs, both witnesses and non-witnesses were allowed to mingle with the jury during the progress of the trial. There was no question that this had happens just as there's no question that it happened in the instant case. There was no attempt to say that this happened only during the deliberations of the jury that happened only during the course of the trial. Interestingly enough, it was not a capital case. The highest court in Indiana struck down the conviction and I've quoted from that case at length in my brief. I don't think that it's necessary to reread that but the court simply said that regardless of whether or not the defendant can prove any actual misconduct, in the actual prejudice to his cause, the mere fact that this thing happened unnecessarily is presumption enough and calls for a new trial on constitutional grounds. I don't think they used the word constitutional but certainly this was in the back of their minds. In the Shermer case which is actually one of those cases dealing with the presence of the bailiff during the deliberations of the jury. The court also struck down the conviction. However, I should point out to you that in the Shermer case, the bailiff was not in the room. He did not actually hear the deliberations of the jury. This was simply the case where after the case was submitted to the jury, the bailiff witness accompanied the jury to the restaurant and sat with them as they ate. Now, I see no real distinction between that kind of a case and the case which we have at bar where the bailiff again accompanies the jury to the restaurant and sits with him as deputy Simmons admittedly did on at least two occasions because there the jury is not deliberating, he is not discussing. They're simply being created a bond of rapport of friendship between the witness and the juror. It is the intention of petitioners that the accused constitutional right to a trial by an impartial jury has been violated. First under state law because a presumption arises when there is a physical separation of the jury. A presumption likewise arises under federal law when there is an unnecessary and unauthorized communication between the juror and another witness. Under the Little case, on the Maddox case, on the Morin case which I have already mentioned, it would appear that this presumption ought to arise under state law because these cases tend to place it on a constitutional basis. The Woods case I've just quoted -- cited to you indicates that the presumption of prejudice arising out on such a situation cannot be overcome by the state.
Earl Warren: Very well. Mr. Yokum.
Leonard E. Yokum: Honorable Chief Justice and associates. I am going to pass along on the facts although they may not be completely at issue. There is an attempt by the defense counsel to suggest the possibility of self defense by a felon in the perpetration of a crime by stating that the attendant at the billing station fired first. There is no evidence in the record even the transcript to the original case or in the transcript to the record before this honorable court along that point but be that as it may if it was so, there is no self defense available to a person in the perpetration of the felony. Now before we can fully understand the mechanics of a small country parish, it would probably be best to describe it to you. Tangipahoa Parish is approximately 50 miles long and approximately 12 to 14 miles wide. There are approximately 12 deputies to handle that parish. These deputies have such various duties as serving summons, making arrests, keeping the peace, transferring prisoners to Angola from the parish prison, attending funerals as escorts, summonsing jurors, attending to juries. In other words, their duties are manifest and widely vary. If you would have a crime which involved six or eight deputies as witnesses, it would become an -- almost another impossibility to exclude all of those deputies who participated in an investigation of the case from -- in some manner coming into contact with the jury. Now, just as it is a country parish in that respect, so it is with the eating facilities. Our parish has no facilities in the courthouse for feeding the jurors. It is necessary when the time comes to eat for them to repair to a small restaurant about two miles west of Amite. This is usually done in school buses or if a school bus is not available, several deputies' cars to escort them from the courthouse to the eating facility. Here again we're confronted with a condition of circumstance, either they eat that way or they don't eat and if you're going to have a three-day trial hungry juries is not a very -- a very good jury to have listening to the facts. It was on one of these excursions to the restaurant that the so-called separation of the juror Casanova took place. It is fully explained in the transcript of the record upon Mr. Simmons how it occurred. He had left to go pay the check and while he went to pay the check, he left the juror Casanova in the company of Deputy Rispone and another deputy. Now, of course, defense counsel seeks to unknowingly unwittingly possibly to have a double explanation of the separation of this juror. In one instance, he says, he was with Rispone alone and in another he said he was with Rispone and another party which would attempt to suggest that there was some outsider who was present with the deputy and the juror. Now, while there may be some difference between the separation and the seclusion which I agreed to, it is quoted in Article 394 of the Louisiana Criminal Cod, from the moment of acceptance until the rendition of the verdict to the entry of the mistrial that juror should be kept under the charge of an officer in such a way as to be secluded from all outside communication. Now, I think it's readily apparent what the purpose of this article is. Somewhere along the line, we have to appoint someone who is responsible for this jury. If it's not the deputy sheriff it's going to be someone else. The duty of this officer whoever he maybe is to see first that that jury is kept as intact as humanly and practically possible and to also see that no one from the outside gets to that jury to attempt to taint them. And if those two items are taken cared of other deputies, we feel that no violation of rights has taken place.
Arthur J. Goldberg: (Inaudible)
Leonard E. Yokum: Other than the deputy?
Arthur J. Goldberg: (Inaudible)
Leonard E. Yokum: That would be an outside influence. Yes sir. Now the mere fact that --
Arthur J. Goldberg: (Inaudible) or more.
Leonard E. Yokum: I don't think it matters. In other words, either you're an outside influence or you are within the group, if he is within the group provided by law to protect that jury and to take care of that jury, he is not an outsider. Now the next problem that would arise from your question would be now, if that occurred what effect would it have? In other words, if you had a deputy who was a witness then what would be the legal effect or legal presumption which would arise from that very fact? But if -- but that in itself would not be a separation of juror or -- nor would it violate the seclusion rule.
Arthur J. Goldberg: (Inaudible)
Leonard E. Yokum: Yes, when you use the word mingle you go a lot further than what has transpired (Inaudible)
Arthur J. Goldberg: Well that would be a violation?
Leonard E. Yokum: No sir, that would not be a violation,
Arthur J. Goldberg: Either the (Inaudible)
Leonard E. Yokum: Yes, not only that, I am backed up by federal decisions and by several decisions of my state court down to that effect that it is not such a violation. Now, --
Earl Warren: Mr. Yokum, what is the population of your county?
Leonard E. Yokum: 62,000.
Earl Warren: 62,000.
Leonard E. Yokum: Yes sir. Now, the parish has one, two, three, four fair sized cities in it.
Earl Warren: There are four?
Leonard E. Yokum: Four fair sized cities in it.
Earl Warren: Yes, yes.
Leonard E. Yokum: The biggest of which is Hammond and then they are separated, one to the south by five miles to the north 17 miles which is Amite, the county seat and then Kentwood about four miles above that.
Potter Stewart: Ponchatoula?
Leonard E. Yokum: Ponchatoula is five miles south to Hammond. I see you've been in there.
Potter Stewart: This Hammond -- you pointed out directly that these -- where all the small parish with definitely limited eating facilities and so on and it --
Leonard E. Yokum: It's small in one way but t is wide as far as the range of the deputies is concerned, the demands that it creates upon them.
Potter Stewart: Yes, there are 12 deputies.
Leonard E. Yokum: Approximately yes sir.
Potter Stewart: And of course --
Leonard E. Yokum: They're there from time to time.
Potter Stewart: In any case where it was known in advance becasuse I'm sure it must have been in this case that one or two of the deputies are going to be witnesses for the state this whole thing could be -- It could be more than avoided by (Voice Overlap) other deputies take care of the jury and these deputies, respective witness deputies do other duties isn't that right?
Leonard E. Yokum: Of course you do understand that our officers have no control over the matter in which the sheriff handles the -- his portion of the trial.
Potter Stewart: No, it is a matter of fact. This whole problem could have been (Voice Overlap) in the small county where you --
Leonard E. Yokum: Now, at this time, I'd like to take up the question of the so-called confession or statements. Under Louisiana law before a statement can be introduced into evidence, it has to first be tried out of the presence of the jury to find that it was freely and voluntarily given. And after that, if the judge feels that it is freely and voluntarily given and that same testimony is given again before the jury. In the particular timing, insofar as the evidence before the judge alone is concerned, the defendant may take the witness stand for the limited purpose of giving his statement with regard to whether or not the statement was voluntary. Now, I'd like to call your attention to Mr. Turner's statement with regard to the confession. On page 50 of the transcript the Court questioned the defendant Mr. Turner. Question: Mr. Turner did Deputy Simmons make any promises to you for awards or benefits in connection with you giving your side of statement? Answer: No sir. Question: Did he threaten you in any way? No sir. Question: Was the statement given under conditions which might be conducive in placing you in a position of fear or apprehension for your safety? No sir, I could not say that. By the Court that is all. Now, gentlemen, one of the theories that may arrived from the very fact that if a witness for a state is also tendering to the cast of the jury that they might arise an occasion whereby the testimony of the defendant himself and this so-called witness for the state might be at variance. But I'd like to point out to you in this case there is no variance between the testimony of the defendant and the witness for the state. The defendant in his own words through the questioning of the judge showed that the taking of the test of the statement, the signing of the confession was done freely and voluntary. And the judge so ruled.
Earl Warren: How about when the counsel said that he hadn't had any sleep according to his contention.
Leonard E. Yokum: He admit he (Voice Overlap) he said he hadn't had anything to eat for 48 hours.
Earl Warren: Yes. Was that --
Leonard E. Yokum: Now that wasn't -- that wasn't because he was on bread and water, it was because he just didn't eat. In other words, he wasn't kept from food. There wasn't any --
Earl Warren: What is that?
Leonard E. Yokum: Or if he had when the court questioned him there without having the prosecution able to get hold of him at that time. He was so sick.
Earl Warren: Well, what was his testimony that he wasn't furnished food for 48 hours or that he didn't want to eat for 48 hours?
Leonard E. Yokum: Approximately how long had it been since you had slept. The same amount on page 48. I'm sorry, it was the -- he had not eaten or slept for 48. At the time he was taken, how long had it been since you had eaten anything? Approximately 48 hours. Approximately how long had it been since you had slept? The same amount, 48 hours. Had you been separated from your wife? Sure. Now, one -- one thing they don't want to forward that now. He was not in the custody of the sheriff for that 48 hours. He had -- he had come into Hammond hungry. The fact of the thing is the -- those two sentences on that page is what cause this whole thing. When he came into Hammond he was hungry and broke and he and his wife decided they were going to find a place to stick it up and get something to eat, and in the process killed this service station attendant. And when they were found, they were found several miles southeast of Hammond in a car trying to get away with it, running to a ditch and were caught and they were brought up and it mean that they had not been in the custody of a sheriff more than two hours or three hours when this statement was stated. Now, another thing I'd like to --
Potter Stewart: That the entire testimony of both of these deputy sheriffs in its printed record?
Leonard E. Yokum: Not in their testimony, no sir, but the testimony which apparently was deemed that testimony which was necessary.
Potter Stewart: You told us there was a -- as I understood you that there was no conflict at all between their testimony and that of the defendant.
Leonard E. Yokum: No sir.
Potter Stewart: And the stenographer has just see that --
Leonard E. Yokum: And of course I do have (Voice Overlap) I do have to point this out however that the only time that the defendant took the witness stand was out of the presence of the jury. He did not take the witness stand for full cross examination in the case which was of course his constitutional rights. Now one thing I would also like to point out to you if --
Earl Warren: Is there a typewritten record here?
Leonard E. Yokum: No sir, it's not here. It's in the -- apparently in the Supreme Court of the State of Louisiana or did they send the complete record of it.
Earl Warren: Would that to be made available to us?
Leonard E. Yokum: Yes sir.
Earl Warren: Would you see that that's stand please.
Leonard E. Yokum: Surely can.
Earl Warren: Thank you.
Leonard E. Yokum: Yes sir. Now, another thing I would like to point out and that is this when this objection was first made that there might have been some hanky panky going on insofar as the deputy was concerned, the witnesses and the jurors. The court in an abundance of caution on page 27 of the transcript said this, I think in view of the motion, that was the motion for the new trial presented by defense counsel Pierson, I think it is necessary that Deputy Rispone be questioned on that point. I would suggest that in view of the fact if you made the motion Mr. Pierson that if there is any information that should be elicited that you cross-examined Deputy Rispone. And he was cross-examined as completely as defense counsel decide and the only evidence it could be elicited from that witness was this, have you spoken at any time during the course of the trial to any of the jurors about anything? Answer: Yes I have. In connection with providing for their needs, seeing that they were comfortable showing on when to go into the jury room et cetera. Yes. Mr. Pierson, I rest. Now, I want to point out to you Honorable Justices it was this witness who had supposedly violated his oath as a deputy who was in the process of upsetting the scales of justice who was supposed to be carrying on in all sorts of matters with this jury. It was this witness on the witness stand subject to the cross examination of the defense counsel. If there was anything the defense counsel wants to know besides what he got, it was still his privilege to get it from that witness and no other wit -- no other testimony came there from nor was it possible because there was no such thing. Now, in this particular case, I believe that we're confronted with two possible constitutional issues.
Earl Warren: Before you get to that, may I ask, what about the statement that one of the witnesses made as related by counsel to the effect that during his custody of this jury he made no acquaintances and removed all friendships.
Leonard E. Yokum: I have no explanation for this sir (Voice Overlap)
Earl Warren: Do you think that that is not implied --
Leonard E. Yokum: Well --
Earl Warren: -- sociable conversation and --
Leonard E. Yokum: Well -- I may have an answer for it.
Earl Warren: I beg your pardon.
Leonard E. Yokum: I say I may have an answer for it.
Earl Warren: I can't understand you.
Leonard E. Yokum: I say I may have an answer for it.
Earl Warren: Yes. Well that's what I want.
Leonard E. Yokum: I've been assistant district attorney for 10 years and there are many times that I practiced before the Court that I don't even see defendants and witnesses had come there. And they'll have to meet me on the streets say “I saw you in court this morning,” and talk to you about it. In other words we make acquaintances and sometimes we make friends and sometimes we make bad impressions without actually ever coming into close contact with people. Now, that may have been -- that's the only logical explanation that I can suggest to it because I don't believe there's any -- there was any -- perhaps you would know for both the player and I didn't think like that going on back there. I don't -- or do I think there was any possibility of suggesting fishing trips or anything.Now that's my answer to that. So apparently we have two constitutional issues. One, whether the constitution of the State of Louisiana was violated and of course I think that particular category I think the state of Louisiana has the best judge insofar as it's state constitution is concerned.
Byron R. White: Well that --
Leonard E. Yokum: No sir. But I just say a little possibility of two. Now for that what I do want to point out however is this. If the state of Louisiana cannot pass on its own constitutionality and say that acts performed within it's jurisdiction of constitution and how can the State of Wisconsin or the State of Illinois' have a decision which will have the effect of overriding a decision of the State Supreme Court of Louisiana which is in effect what is going to be done here. If the Shermer case is (Voice Overlap). Now, under the question of the --
Byron R. White: (Inaudible)
Leonard E. Yokum: Sorry. Under the federal issues now, we have chambers -- Chambers versus U.S. 237 Federal 513 wherein the court said that the matter was not reviewable by a federal appeals court and that the matter similar to this was within the discretion of the trial judge. Now, the cases that were cited -- the Little case is a very good reason why that case was overruled. Though the stenographer and the jury room that's absolutely forbidden. That's an outsider, no question in the world about that. No outsider can be -- and I can't be in there. And no any witness, and that stenographer was a witness. In the Sutherland case, the witness, witness talked with the juror about the case. Now, I cannot conceive of any situation wherein a witness could get to a juror unless that witness was allowed to separate.
Byron R. White: Or that (Inaudible) indictment?
Leonard E. Yokum: His badge?
Byron R. White: (Inaudible) distinction between the deputies of the witness and an outsider.
Leonard E. Yokum: Personally I don't see it. I don't -- I don't see it.
Byron R. White: Well, even if one is bad or the other is bad or either --
Leonard E. Yokum: Oh, but now wait just a minute. In this particular case, there was a witness inside the jury room during the deliberations.
Byron R. White: Well I understand that. I understand that. But I take it that -- I take it that if a witness had been allowed -- a non-deputy witness have been allowed to --
Leonard E. Yokum: To talk with the --
Byron R. White: -- to associate with the jury like the deputy did.
Leonard E. Yokum: Oh no -- no. The case didn't say that.
Byron R. White: Well, I know, I know but I -- forget that case we had.
Leonard E. Yokum: Alright.
Byron R. White: In this particular case, if a witness, a non deputy witness had been allowed to associate with the jury, you would I supposed think it was error.
Leonard E. Yokum: Because then he would be an outsider in the segment.
Byron R. White: Yes. But now here the deputy who talks to me and associates with the jury. Now why is the one bad and not the other?
Leonard E. Yokum: Because Article 394 of the Louisiana Criminal Code says one is correct and the other is incorrect.
Byron R. White: But why do you suppose in actuality or in operative result why is the one bad and the other not? Is it just because that the necessity of somebody has to take care of the jury?
Leonard E. Yokum: Mr. Justice because when I came up here, yes, that it'd be sworn and there was a certain fellow who've had a job, they do stood right behind me. It's just -- in other words, there are rules and regulations in everything you do that have to be -- have to be reported to and if he kept in contact with there is no provision there for a witness having anything to do with a jury, with the article or the criminal code, Article 394 says it shall be in the custody of the sheriff.
Byron R. White: So there's some explanation for him being there and he's not been a witness.
Leonard E. Yokum: That's correct, Article 394 of the Louisiana Criminal Code which says that's his duty, that's his job. And now let's take this thing one step further if we take that analogy. Let's say that the deputy can't do it. Then who's going to take care of the jury? In other words we're going to have somebody to take care of the jury. And whoever takes care of the jury is going to be an officer of the court and we're just going to pass that point one step further.
Byron R. White: Well I think you went --
Earl Warren: (Inaudible)
Leonard E. Yokum: Well the only thing is if we had all the deputies, I wouldn't be here today.
Potter Stewart: Probably whether --
Leonard E. Yokum: In other words I wouldn't be here today.
Potter Stewart: The problem is you don't have to obviate even in a small parish where there are only two deputies I should think.
Leonard E. Yokum: Well, I'll say this, it's not impossible --
Potter Stewart: Except in the rare case where all the deputies are going to be prosecution witnesses and (Voice Overlap) so you can prove that you could have special deputies.
Leonard E. Yokum: I can say on this particular case that it was quite a general law as far as that was concerned. They were deputies because for a long term, I shouldn't say for a long time, there was a period of time within which no one knew who had committed the crime and the parish was being completely surveying for evidence. They did not been into listing for getting in the court in a ditch being stuck. I wouldn't be here either because even that they haven't thought.
Potter Stewart: While he was out there apprehended pretty soon after the --
Leonard E. Yokum: That's right. Now in the matter --
Potter Stewart: How long after they admit?
Leonard E. Yokum: I beg your pardon.
Potter Stewart: How long after the murder when these people were apprehended?
Leonard E. Yokum: Oh, within 8 to 10 hours. It was committed in the middle of the morning.
Potter Stewart: Were there any --
Leonard E. Yokum: Pardon me --
Potter Stewart: Excuse me. Was there a defensive insanity interposed in this case?
Leonard E. Yokum: Yes sir.
Potter Stewart: And how was that handled? How was that handled into your practice?
Leonard E. Yokum: We have a group of three doctors appointed to take approximately 30 days within which to review the conditions of the defendants' sanity both at the time of the commission of the crime and as of present and then that commission or that insanity commission reports back to the court its findings and try to go into trial on the merits, the defense is allowed to present that and had that issue passed upon for them to trial on there.
Potter Stewart: By the judge?
Leonard E. Yokum: By the judge, yes. Now that then support his present sanity is concerned. In other words to find out whether he's able to represent himself and to -- could cooperate with his counsel. Now the question of insanity insofar at the time of the commission of the crime is a matter of fact to be weighed by the jury in itself. That cannot be handled in advance but all those safeguards will go into then as far as this defendant is concerned.
Potter Stewart: And where -- we're both kind to -- I mean both periods of insanity it opposed here?
Leonard E. Yokum: Yes sir.
Potter Stewart: First, is inability to stand trial.
Leonard E. Yokum: That's correct.
Potter Stewart: Now it was decided against him by the --
Leonard E. Yokum: That was decided against him by the trial judge.
Potter Stewart: And then on the trial of the merits --
Leonard E. Yokum: The jury decides against him on the question of insanity at the time of the commission of the crime.
Potter Stewart: And was it there before the jury, the report of this lunacy Commissioner --
Leonard E. Yokum: Yes sir.
Potter Stewart: -- was a relied witness.
Leonard E. Yokum: Not only, not -- no way, not only the report of that commission but the members of the commission have presented to the jury and the judge questions them and the defense counsel is allowed to cross-examine and in addition to that if there's any question in his mind from the time he gets that report, and he gets that report before he goes to trial. If there's any question in his own mind he has the right to call his own alliances to attempt to disprove what the commission says.
Potter Stewart: The trial judge or --
Leonard E. Yokum: No -- no, it's the defense counsel.
Potter Stewart: The defendant?
Leonard E. Yokum: Yes, the defendant.
Earl Warren: As I understood the counsel that one of these deputies had lunch with the jury.
Leonard E. Yokum: That's correct sir. Twice (Voice Overlap) on adjudication.
Earl Warren: Would the statute require that?
Leonard E. Yokum: Well if the deputy isn't there they need separation.
Earl Warren: Is that your -- is that your question to down there --
Leonard E. Yokum: Yes sir.
Earl Warren: -- to have them get accustomed with --
Leonard E. Yokum: (Voice Overlap) law, they are 27 years and that was the custom when I came there. It was there 40 years before I came.
Earl Warren: The deputy's eats -- lunches with the jury?
Leonard E. Yokum: Yes sir. Now there is a private dining room there for it. In other words they don't -- they don't eat out in the front with all of the other -- all the other customers. Now, it's a private dining hall and they're taken back in that private dining hall and they're in the custody of more than one deputy. There's no possibility there then.
Earl Warren: Is that an isolated instance and being in Louisiana's provision that the deputy does eat with them frequently.
Leonard E. Yokum: I would -- I would mention to say that that's a matter of common practice. Although --
Earl Warren: I have no idea for it.
Leonard E. Yokum: Yes sir.
Earl Warren: It speaks in telling that --
Leonard E. Yokum: Well now, particularly in those parishes where the eating facilities are not available to the jury and the jury room they say.
Earl Warren: It maybe bad without taking the --
Leonard E. Yokum: It maybe bad but I just wonder how it can be avoided. In closing then it appears that the federal cases established almost the same rule that has been established here. And that is that if this matter occurs a presumption may arise but that is a rebuttable presumption, and that if evidence is introduced to rebut it then it ceases to be at any consequential.
Earl Warren: Mr. Pierson.
Allen B.Pierson, Jr.: Mr. Chief Justice and may it please the Court. Unfortunately the prosecuting attorney is correct that self defense is not available as a defense in this case where we would dispose that without the trial in the lower court. The -- I was very interested to see that for the most part, the counsel for the respondents did not attempt to establish the propriety of the action of the sheriff's office in the McAllister and Turner cases, the one we have here today. But simply apologize for this action on the ground that there was insufficient manpower, that there was insufficient eating facilities and that things were generally insufficient all the way around. Even the Justice Hawthorne in delivering the opinion of the Louisiana Supreme Court in this very case apologized for this very action which it could take -- which have taken place. He says the Court is inclined to look upon the practice of the disapproval. Excuse me, with disapproval however because in such cases there may be prejudice of a kind and exceedingly difficult to establish. This was the reason for the holdings in the Little case, in the Morin case that the prejudice, the actual misconduct would be exceedingly difficult to establish and that what's suspicious circumstances had been alleged and proven by the accused, this should be enough to set aside the verdict. It's only in a rare case once such a showing has been made that the prosecution should be allowed to come in and refuse a presumption by the introduction of positive evidence. It's the contention of petitioner in this case that the positive evidence to refute the presumption of justice is not there. Deputy Simmons testified on pages 36 and 37 of the printed record, he admits to making new friends and acquaintances. Deputy Rispone testifies only to the fact that he did not discuss the case with juror Casanova on this one instance. What did they discussed, the record does not disclose it insofar as I can tell.
Speaker: Does Louisiana law require that juries always be separated?
Allen B.Pierson, Jr.: In capital cases, the jury cannot be separated under Louisiana law.
Speaker: That refers to capital cases only.
Allen B.Pierson, Jr.: Capital cases only. In minor offenses the jury can be permitted to separate at the discretion of the court. In the case of State versus Hornsby which is in all the way down the case I think such court that rule of law.
Hugo L. Black: Is there a statute on it or is it just a rule of court?
Allen B.Pierson, Jr.: Statute, the 15:394 does covered capital cases. I'm not sure whether it covers minor offenses or not; I am going to check real quickly. It covers the -- it covers the whole revised statute 15:394 Your Honor. It says that in capital cases, they shall be kept together and secluded from outside communications provided in cases not capital the judge may have its discretion to allow the jury to separate anytime before the action was delivered.
Hugo L. Black: And it's your position -- and it's your position that the federal constitution would require that they would be kept together whether the statute states statutes, is it not?
Allen B.Pierson, Jr.: No sir. No sir, not necessarily. I would think it's a very loose practice not to keep them together in the capital case but I don't believe the federal constitution would require that. What I think the federal constitution requires is simply that the accused not be put to the task of proving actual misconduct, of proving an actual evil intent or design or actual prejudice once it has been shown that the jury has been allowed to associate on a free and friendly basis with witnesses for the prosecution be their witness -- be their bailiffs or whatever.
Hugo L. Black: Are you not talking about the constitutional level?
Allen B.Pierson, Jr.: Yes sir.
Hugo L. Black: Federal constitution?
Allen B.Pierson, Jr.: Yes sir.
Hugo L. Black: That the federal constitution is violated.
Allen B.Pierson, Jr.: That's correct sir.
Hugo L. Black: That here, they're allowed to separate, you are allowed to separate (Inaudible), that the burden is on their case to show that they have nothing done wrong.
Allen B.Pierson, Jr.: Well sir, I'm limiting the argument to a capital case.
Hugo L. Black: Well I'd say if the Federal Constitution Act I'm not going to limit myself to draw a distinction between the constitutional requirement of the capital case and other cases. I don't find that there needs to be a constitution. But are you saying that the federal constitution requires that that provides somewhere simply that we could construe it anyway to have you or to allow to separate although the constitution doesn't provide that they must be kept together. But they are allowed to separate if they talk to somebody that it's the duty of the state to show that they were not prejudiced.
Allen B.Pierson, Jr.: I think --
Hugo L. Black: If that's federal constitution requires.
Allen B.Pierson, Jr.: Yes sir. I think that the federal constitution while it may not specifically require the jurors to be kept together while it may not specifically. I'm not really prepared to answer that. I think the federal constitution does require that once it has been shown that there has been a separation, that there has been communication with witnesses unnecessary communication, communication which could under the facts have been avoided by simply having some of the other bailiffs take charge of the jury then I think the federal constitution has been trampled upon.
Hugo L. Black: Which provision?
Allen B.Pierson, Jr.: Specifically amendment number 6, the part of that amendment ensuring the accused a right to a public and speedy trial by an impartial jury. I believe that once the suspicion has been proven, that the jury has possibly not been impartial either intentionally or unintentionally even which was certainly the holding of the Little case. Then I believe the accused is entitled to a new trial.
Speaker: Supposing the jury -- excuse me -- supposing there has been no separation of the jury here would you be arguing the case in a different way?
Allen B.Pierson, Jr.: No sir. Actually, I'm arguing the case on a dual ground. First, that since there is a separation, a physical separation under state law, Hornsby, the Hornsby case, a presumption of prejudice arises. And also I've cited the federals' decisions which indicate that even without a separation or whether there's a separation or not, the fact that there is a violation of the seclusion of the jury that they have talked about the case or that has had been on that conversation with other people that this is sufficient.
Hugo L. Black: Would you (Inaudible) of federal constitutional right?
Allen B.Pierson, Jr.: No sir. I'm relying on the federal decisions which indicate that as a constitutional right that the accused not be put in a position of showing actual prejudice or misconduct once the accused has proven sufficient facts and circumstances to create a suspicion in the minds of the court. I think this basically is what we're arguing today.
Hugo L. Black: You're not relying on the state law (Voice Overlap) or your federal constitution --
Allen B.Pierson, Jr.: Oh no sir, and of course I can't rely on that probable cause --
Hugo L. Black: Why (Voice Overlap) ask you some questions.
Allen B.Pierson, Jr.: Oh no sir. No, I simply brought up the state law to acquaint this Court with what it is to show that the McAllister and Turner decisions are a departure from that law. Now, I express my appreciation to the court for having heard this case.
Earl Warren: Mr. Pierson, I noticed from the record that this man was an indigent and that you are appointed by the court to represent him and that you have carried this case through to this Court and on behalf of the Court I want to express our appreciation to you for accepting what we consider as a real public service on the part of lawyers. We're always confident to know that lawyers will accept appointments of this kind from the court to represent indigent and unpopular defense.
Allen B.Pierson, Jr.: Thank you Your Honor. I very much appreciate it.
Earl Warren: And at the same time, Mr. Yokum, I want to commend you for the fair, frank and diligent manner in which you have performed your public service of representing your state.
Leonard E. Yokum: Did I understand that you wished the complete transcript sent to you?
Earl Warren: Yes, we would like them.
Byron R. White: Do you have all of that?
Earl Warren: Oh, is it here? Oh, thank you then you're really into that responsibility Mr. Yokum. Very well, we'll go to the next case.