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December 18, 1972


The opinion of the court was delivered by: McLAREN, District Judge.


This matter arises upon respondents' motion to dismiss Melvin Tobe's petition for a writ of habeas corpus. The parties have ably explored the applicable law in their briefs on that motion, and the trial record has been filed as an exhibit. The Court concludes that a serious question is presented and that further proceedings are necessary. Certain issues can be determined from the record thus far made, as set forth below. Set forth below also are the Court's views on the remaining issues to be decided — to guide the parties in their presentation of further evidence.

Petitioner was indicted for the murder of Robert Lee Jackson. The defense theory was self-defense. After a five-day jury trial in the Circuit Court of Cook County, Tobe was found guilty of voluntary manslaughter on February 27, 1970. Petitioner was sentenced to not less than nine nor more than eighteen years in the state penitentiary, where he is now incarcerated.

Petitioner claims that he was denied a fair and impartial jury trial and due process of law by statements made by the court's bailiffs to the jury as it deliberated. The petition and supporting memorandum allege the following. After deliberating for some time, the jury sent three or four inquiries to the trial judge through the bailiffs stating that they could not reach a verdict and asking for guidance.*fn1 Only one of these inquiries reached the judge, to which he responded, through Bailiff Goe, that everything was in the instructions. Other bailiffs responded to the remaining (two or three) inquiries, without notifying the judge, by telling the jury, as one juror stated in an affidavit, "You'll have to stay in there until you come up with a decision," or, as another juror put it, "Keep deliberating, there has to be a decision."*fn2

The record shows that later that day, the jury reached a verdict of guilty on the lesser included offense of voluntary manslaughter and was polled.

When he became aware of the bailiff's communications with the jury, petitioner's counsel requested an evidentiary hearing. The hearing was denied on the basis of the judge's examination of Goe, the fact that the jury was polled, and the fact that the judge, with the aid of his notes, recalled only one inquiry (which he answered through Goe) after the jury sounded a buzzer connected to his chambers. The judge later denied a renewed motion for a hearing and a new trial, finding that the sole communication with the jury during its deliberations was the one which he authorized Goe to make and that it was not prejudicial. The judge indicated that he reached this finding after considering the factors previously noted, further testimony by Goe in response to examination by counsel, and the affidavits of seven jurors, two bailiffs, and a deputy sheriff who had been assigned as a bailiff on the day of the verdict. The Illinois Supreme Court affirmed Tobe's conviction and the dismissal of his petition for post-conviction relief. People v. Tobe, 49 Ill.2d 538, 276 N.E.2d 295 (1971).

Petitioner claims that the judge's finding that there was only one communication with the jury while it deliberated is clearly erroneous. Under 28 U.S.C. § 2254(d), he has the burden of rebutting the presumption in favor of the correctness of this finding with convincing evidence, unless one of the circumstances set forth in paragraphs (1) to (8) appears or is established. After careful consideration, this Court is forced to conclude that the finding of a single inquiry and response is contrary to the record.

The affidavits of the jurors, bailiffs, and deputy sheriff all state that more than one inquiry was made and responded to, and several state that these additional inquiries were made after the jury knocked on the door of the jury room rather than after sounding the buzzer connected with the judge's chambers. Although Goe testified that he did not know of and had not been told of any further communications, he also testified that he was not present outside of the jury room at all times during the deliberations. And although the judge recalled only one inquiry, he could not be expected to know of others made after the jury knocked on the door. No reason for the jurors, bailiffs, and deputy to have lied in their affidavits was suggested. Yet, for the trial judge to reach his finding of but a single inquiry and response, he had to disregard them completely.

This Court finds that the only reasonable conclusion to be drawn is that there were further inquiries made by the jury and that these were answered by a bailiff or bailiffs other than Goe, without the judge's knowledge.

The remaining issues are (1) what further statements were made to the jury and (2) whether they were sufficiently prejudicial to deprive petitioner of the right to a fair and impartial trial under the Sixth Amendment as incorporated into the due process clause of the Fourteenth Amendment. In deciding the first issue, this Court will consider the evidence in the trial record, including the affidavits, and any further documentary evidence which may be submitted by the parties within 30 days of the date of this memorandum opinion. Should either party desire to present testimonial evidence, a request for a hearing shall be made by motion, on notice, prior to the expiration of said thirty-day period.

For the guidance of the parties in obtaining and submitting further evidence, should they desire to do so, the Court briefly outlines below the law which it finds applicable to the determination of prejudice in this case.

The test of whether unauthorized influences invalidate a conviction is whether, in the absence of a showing of actual, identifiable prejudice, the occurrence complained of involves such a probability that prejudice will result that it is deemed to cause an inherent lack of due process. Estes v. Texas, 381 U.S. 532, 542-44, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965). When a party attempts to show prejudice through the statements of the jurors, the problem of the rule against impeachment arises. As the trial judge recognized, jurors are allowed to testify only as to the nature of outside influences, but not as to the subjective effect of the intrusions upon their mental processes. Mattox v. United States, 146 U.S. 140, 148-49, 13 S.Ct. 50, 36 L.Ed. 917 (1892); Downey v. Peyton, 451 F.2d 236, 239 (4th Cir. 1971); United States ex rel. Owen v. McMann, 435 F.2d 813, 816 (2d Cir. 1970), cert. denied, 402 U.S. 906, 91 S.Ct. 1373, 28 L.Ed.2d 646 (1971); Gafford v. Warden, U.S. Penitentiary, Leavenworth, Kan., 434 F.2d 318, 320-21 (10th Cir. 1970); United States v. Rocks, 339 F. Supp. 249, 253 (E.D.Va. 1972); Procella v. Beto, 319 F. Supp. 662, 669 (S.D.Tex. 1970). As Judge Smith stated in United States v. Crosby, 294 F.2d 928, 950 (2d Cir. 1961), cert. denied, 368 U.S. 984, 82 S.Ct. 599, 7 L.Ed.2d 523 (1962):

  "Even though presumably the jurors themselves
  know best, the question [of prejudice from
  outside influences] is determined . . . on the
  basis of the nature of the matter and is probable
  effect on a hypothetical average jury."

See also Miller v. United States, 403 F.2d 77, 83 n. 11 (2d Cir. 1968). This Court will therefore consider only those parts of the jurors' affidavits and any further evidence given by them which shows the nature and content of the ...

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