no prejudice resulted from a brief conversation between the prosecutor and two jurors, outside the jury room, before deliberations, concerning the estimated conclusion of trial
How later courts described this case
- no prejudice resulted from a brief conversation between the prosecutor and two jurors, outside the jury room, before deliberations, concerning the estimated conclusion of trial
Written by the judges who cited it.
The opinion
Souris, J.
(dissenting).
I.
“If a juror spoke to you, why didn’t you walk away?” This comment,' made by the trial judge upon being informed of the conduct of the prosecutor in this case of Schram, sums up the standard required of an officer of the court in his dealings with a jury. In Bunda v. Hardwick (1965), 376 Mich 640, 668 , this Court recently approved the following language:
“A court officer should not converse with the jurors at any time, except as necessary to direct them where to go and when. If they ask him any questions in any way related to the case on trial, he *163 should tell them that he is not permitted to make any comment upon the case or its conduct, hut that he will take to the judge any written questions they may have.”
Three months later, in DeCorte v. New York C. R. Co. (1966), 377 Mich 317 , the Court found reversible error in the conduct of a court officer who, although not in charge of the jury in that case, had associated with the jurors during the course of the trial and had, on occasion, driven plaintiff to court. It is significant that the trial judge in DeCorte did not question the jurors about their associations with the court officer and that this Court, through Mr. Justice Black’s opinion, indicated that such questioning during the trial would have been improper. 377 Mich 317, 351 . Merely the association of the jurors with a court officer predisposed to plaintiff’s case was held per se a denial to defendant of due process of law.
These, then, are the strictures we have laid down so very recently in civil cases with regard to court officers who are not attorneys. How much,stricter should be the prohibitions against fraternization between attorneys and jurors in criminal cases— attorneys who inevitably are identified with the party whose cause they advocate! If it is presumed that a jury might be infected with prejudice by association with a court officer who is friendly with a party, how much stronger should be the presumption that a jury will be so infected by association with an attorney for one of the parties!
II.
The incident which occurred in this case by no stretch of the imagination can be termed innocuous. As is divulged in the prosecutor’s statements quoted in the opinion .of Mr. Justice Smith, one of the. *164 jurors in the presence of another juror indicated to the prosecutor displeasure at being kept beyond the jurors’ regular term and attributed blame therefor to the prosecutor. The prosecutor sympathized with the jurors’ plight, exculpated himself by saying, “We, frankly, are through”, and placed the onus of keeping the jurors over their regular term upon defendant.
One wonders what was the attitude of these restive jurors towards, and with what attention they listened to, the testimony subsequently offered on behalf of the defendant who was the cause, as they were assured by the commiserating prosecutor, of their prolonged detention. Can anyone doubt that, consciously or not, they took a somewhat jaundiced view of defendant’s presentation?
III.
As indicated, on the authority of DeCorte , I do not believe the trial judge should have interrogated the jurors for the purpose of determining whether a mistrial should have been • granted ,• rather, he should have granted the mistrial on the basis of the prosecutor’s own candid admissions. But even the trial judge’s examination of the jurors, as quoted in Justice Smith’s opinion, does not establish a convincing basis for a finding that they were untainted by their conversation with the prosecutor. Note that the trial judge never asked the jurors to narrate their version of the conversation, but rather prompted their predominantly monosyllabic replies by leading questions. Nor did he question the jurors separately to test the consistency of their versions of the event. ......
Furthermore, the answers which the jurors gave' to the judge’s questions are at variance with the prosecutor’s statement to the. judge. Thus, the. ju *165 rors answered, when asked whether anything prejudicial transpired, that there was “Nothing as to the case. We were remarking about the time, sir. * * * There was nothing pertaining to the case.” Compare this with only a portion of the prosecutor’s version: “I said ‘We, frankly, are through. We have Mr. Seevers here and we are going to ask a few more questions. Then somebody would be testifying about Schram and then we will have arguments. I think that we will be able to complete the case by Monday.’ ”
From the foregoing dichotomous statements, three conclusions are possible. 1. The jurors did not understand the trial judge’s inquiry. 2. The jurors were lying about what transpired between them and the prosecutor. 3. The prosecutor was lying. Whichever conclusion one chooses, a mistrial should-have been granted even on the basis of the jurors’ answers to the trial judge’s questions, assuming the propriety of questioning the jurors during the course of the trial. As indicated above, however, I believe a mistrial should have been granted on the basis of the prosecutor’s own description of what transpired.
IV.
People v. Nick (1960), 360 Mich 219 , cited by Justice Smith, and People v. Pizzino (1945), 313 Mich 97 , relied upon in the Nick Case, do not persuade me that we should affirm. Disregarding the fact that the juries allegedly were prejudiced in those cases by someone other than the prosecutor himself, in both Nick and Pizzino the issue of juror prejudice was first raised by motion for new trial after a verdict had been reached. Indeed, in the. Pizzino Case 14 years elapsed between the adverse jury verdict and this Court’s opinion. In such *166 cases, it may well be that something stronger than an “inference” of prejudice is required before a new trial must be granted, especially when, as noted in Mr. Justice Black’s opinion in Nick , counsel for defendant had knowledge of the allegedly prejudicial incident prior to the jury’s returning a verdict. Here, however, motion for mistrial was made as soon as the misconduct was discovered and before the jury had retired. It should have been granted.
The conviction should be reversed for new trial.
T. M. Kavanagh, C. J., concurred with Souris, J.