Harassment for Juries

Whenever the Supreme Court expands the rights of the accused, as it did in its famous 1963 Gideon decision requiring free lawyers for indigent felony defendants, pessimists predict that prisoners will win new trials based on the new rights.

Last week Justice John M. Harlan worriedly pointed to the case of Lee E. A. Parker, who devised a novel gambit for getting out of Oregon State Penitentiary, where he was serving a life sentence for murder. Parker sent his wife to find which of his jurors had been most hesitant to convict him--and why.

Three woman jurors (including one alternate) recalled having heard some allegedly prejudicial remarks made by the court bailiff who had shepherded the jury during their 26-hour deliberation. For one thing, they claimed to have heard him say: "Oh, that wicked fellow, he is guilty." For another, the bailiff apparently had assured them that if convicting Parker turned out to be a mistake, "the Supreme Court will correct it."

The court did indeed issue a correction. Last week out went Parker's conviction on the ground that he had been denied his Sixth Amendment right to cross-examine his accusers, meaning the bailiff. There was, held eight Justices, a "probability" that the jury was improperly swayed by "outside influence."

In lone dissent, Justice Harlan discounted the "trivial" influence of "this apparently Elizabethan-tongued bailiff." Far worse, warned Harlan, the Parker reversal may now "encourage convicted felons to intimidate, beset and harass' a discharged jury in an effort to establish possible grounds for a new trial." The decision, said Harlan, "may be thought by some to commit" federal courts holding habeas corpus hearings to interrogate every jury "upon the mere allegation that a prejudicial remark has reached the ears of one of its members." But any large-scale jail delivery is hardly likely. Lower courts are still free to decide each case on its merits; they are not bound to find jury prejudice and order new trials according to the generous dictates of Parker.

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