972 MARSHALL, J., dissenting criminal justice system. See, e. g., Irvin v. Dowd, 366 U. S. 717 (1961). This precious right is denigrated when a conviction resting upon deliberations tainted by a juror's gross and debilitating impropriety is allowed to stand. The issue of juror misconduct usually involves allegations of juror bias. Here, however, the complaint is not that the juror in question was biased against the petitioners. Rather, the complaint is that the juror's drunkeness rendered her incompetent and that a necessary corollary of the right to an impartial jury is the right to a jury in which all of the members are mentally competent. This Court as well as other courts have recognized the right to a mentally competent jury. See, e. g., Jordan v. Massachusetts, 225 U. S. 167, 176 (1912); Sullivan v. Fogg, 613 F. 2d 465 (CA2 1980) (trial before jury with an insane juror inconsistent with due process). It is undisputed that one of the members of the jury-the person chosen to be its foreman-was inebriated during at least part of the deliberations. The trial judge specifically found that the juror was "somewhat under the influence," and recessed the trial so that the offending juror would be able to deliberate after a 3-day respite. The extent of the juror's incapacitation is highlighted by the trial judge's suggestion that he simply dismiss her and allow the remaining jurors to decide the case on their own. The Court of Appeals finds comfort in the fact that "only" one juror was intoxicated. Yet "only" one juror may be the difference between liberty and imprisonment. Due process requires that every member of a jury meet minimal requirements of mental competence and impartiality. The Court of Appeals also finds it relevant that "only a short period of the deliberations was called into question." 454 A. 2d, at 774. But the Court of Appeals cites no facts and gives no reasons which support the notion that the affected period of deliberations was insignificant. Given the delicate dynamics of jury deliberations, it is simply impossible to 2 Although the Court of Appeals asserted that there is no evidence that drinking occurred during the course of the trial, two jurors indicated that the offending juror had been drinking during the trial, prior to the day she was examined by the judge. See Lee v. United States, 454 A. 2d 770, 772–773 (D. C. 1982); Pet. for Cert. of McIlwain 10-11. MARSHALL, J., dissenting 464 U. S. know the effects the intoxicated juror had on her fellow jurors. Common sense would seem to indicate, however, that the general effect would not be conducive to the careful and objective deliberations upon which our criminal justice system relies. In defending the decision of the Court of Appeals, the Government strongly relies upon this Court's holding in Smith v. Phillips, 455 U. S. 209 (1982). Smith involved allegations that a defendant had been denied due process because, during his statecourt trial, one of the jurors applied to the prosecutor's office for a job as an investigator. The prosecutor learned of the application during the trial but failed to disclose this information until after the jury had convicted the defendant. The state court conducted a post-trial evidentiary hearing and determined that the juror was not actually biased. The Federal District Court, affirmed by the Court of Appeals, granted habeas corpus relief to the defendant on the ground that the juror's action had deprived the defendant of his constitutional right to an impartial jury. This Court reversed, holding that the post-trial evidentiary hearing provided sufficient protection for the defendant. Establishing a new standard by which to determine disputes over the integrity of jury deliberations, the majority of this Court declared that "the remedy for allegations of juror partiality is a hearing in which the defendant has the opportunity to prove actual bias." Id., at 215. Smith is a flawed ruling for reasons I have previously articulated. Smith v. Phillips, 455 U. S., at 224-244 (MARSHALL, J., dissenting). It misrepresents the factual circumstances of the incident that was at issue. Id., at 229. It constitutes a departure from the mainstream of this Court's decisions concerning the integrity of jury deliberations. Cf. Peters v. Kiff, 407 U. S. 493, 502 (1972) (opinion of MARSHALL, J.) ("[E]ven if there is no showing of actual bias in the tribunal, this Court has held that due process is denied by circumstances that create the likelihood or the appearance of bias"). It posits a standard for challenging juror misconduct that is unrealistically demanding since proof of actual bias is virtually impossible to discover. Smith v. Phillips, supra, at 230-232. In sum, Smith was wrongly decided, exerts a baleful influence over this Court's consideration of analogous cases, and should be reconsidered. Due process requires far more protection against juror misconduct than the "actual bias" test mandated by Smith. With respect to the cases at bar, due process may well require the grant ing of a mistrial whenever a trial judge finds that a juror, already engaged in deliberations, is so drunk that the deliberations must be recessed. This rule would undoubtedly affect very few trials; drunkenness on the part of active jurors is certainly an aberration. As to objections that this per se rule would create inconvenience and pose a drain on judicial resources, the only response is that such costs are what we must pay in order to give more than lipservice to our claim that trial by an impartial and competent jury constitutes a "priceless" right. See Irvin v. Dowd, supra, at 721. Because these cases present important issues implicating the constitutional right to a fair trial, I would grant the petitions. No. 83-97. NEVADA, BY AND THROUGH THE WELFARE DIVISION OF THE DEPARTMENT OF HUMAN RESOURCES v. VINE ET AL. Sup. Ct. Nev. Motion of respondent John Michael Vine for leave to proceed in forma pauperis granted. Certiorari denied. Reported below: 99 Nev. 278, 662 P. 2d 295. No. 83-300. CITY OF LOS ANGELES DEPARTMENT OF WATER AND POWER v. NATIONAL AUDUBON SOCIETY ET AL. Sup. Ct. Cal. Certiorari denied. JUSTICE REHNQUIST took no part in the consideration or decision of this petition. Reported below: 33 Cal. 3d 419, 658 P. 2d 709. No. 83-434. FOOLS CROW ET AL. v. GULLET ET AL. C. A. 8th Cir. Motions of Christic Institute et al. and American Civil Liberties Union et al. for leave to file briefs as amici curiae granted. Certiorari denied. Reported below: 706 F. 2d 856. No. 83-465. RONWIN v. SUPREME COURT OF ARIZONA. Sup. Ct. Ariz. Certiorari denied. JUSTICE O'CONNOR took no part in the consideration or decision of this petition. Reported below: 136 Ariz. 566, 667 P. 2d 1281. No. 83-5153. HILL v. MISSISSIPPI. Sup. Ct. Miss.; Sup. Ct. Ga.; WATERHOUSE v. FLORIDA. Sup. Ct. Fla. Certiorari denied. Reported below: No. 83-5153, 432 So. 2d 427; No. 83-5389, 251 Ga. 255, 304 S. E. 2d 882; No. 83-5406, 225 Va. 423, 304 S. E. 2d 271; No. 83-5567, 429 So. 2d 301. JUSTICE BRENNAN and JUSTICE MARSHALL, dissenting. Adhering to our views that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth November 7, 8, 14, 1983 464 U. S. and Fourteenth Amendments, Gregg v. Georgia, 428 U. S. 153, 227, 231 (1976), we would grant certiorari and vacate the death sentences in these cases. Rehearing Denied No. 82-1946. OYSTER v. OYSTER, ante, p. 801; No. 82-1991. SCHWARZ v. COASTAL RESOURCES MANAGEMENT ET AL., ante, p. 823; No. 82-6550. No. 82-6676. ante, p. 833; No. 82-6971. MULLEN v. STARR ET AL., 461 U. S. 960; HANNAN v. SECRETARY OF THE ARMY ET AL., HARTFORD v. ARIZONA, ante, p. 842; No. 82-7033. PANTER ET AL. v. MILLER ET AL., ante, p. 845; No. 83-5. POLSKIE LINIE LOTNICZE (LOT POLISH AIRLINES) v. ROBLES ET AL., ante, p. 845; No. 83-93. GEE v. FUNG ET AL., ante, p. 849; No. 83-5114. No. 83-5143. and No. 83-5254. STEVENSON v. CONRAD, ante, p. 857; HOLLAND v. GUEST QUARTERS, ante, p. 858; WRIGHT v. NEW YORK LIFE INSURANCE Co., ante, p. 862. Petitions for rehearing denied. No. 83-405. INDIANA UNIVERSITY FOUNDATION ET AL. v. REED ET AL. Appeal from Sup. Ct. Kan. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied. below: 233 Kan. 531, 664 P. 2d 824. Reported Appeal from Treating the No. 83-531. GAUNCE v. DEVINCENTIS ET AL. C. A. 7th Cir. dismissed for want of jurisdiction. papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied. Reported below: 708 F. 2d 1290. No. 83-5446. TATU ET AL. v. DAVIS ET AL. Appeal from Ct. App. Cal., 4th App. Dist., dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied. No. 83-5460. BETKA v. CITY OF WEST LINN ET AL. Appeal from C. A. 9th Cir. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied. Certiorari Granted-Vacated and Remanded. 83-118, ante, p. 67.) (See also No. No. 83-253. MOYA v. UNITED STATES. C. A. 7th Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of United States v. Place, 462 U. S. 696 (1983). Reported below: 704 F. 2d 337. No. 83-453. NATIONAL LABOR RELATIONS BOARD v. UNITED PARCEL SERVICE, INC. C. A. 3d Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of NLRB v. Transportation Management Corp., 462 U. S. 393 (1983). Reported below: 706 F. 2d 972. No. 83-460. UNITED STATES v. MCMANIGAL. C. A. 7th Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Russello v. United States, ante, p. 16. Reported below: 708 F. 2d 276. Vacated and Remanded After Certiorari Granted No. 82-1925. UNITED STATES DEPARTMENT OF STATE ET AL. v. WASHINGTON POST Co. C. A. D. C. Cir. [Certiorari granted, ante, p. 812.] Judgment vacated and case remanded to the Court of Appeals with directions that it instruct the United States District Court for the District of Columbia to dismiss the complaint as moot. Miscellaneous Orders No. A-233 (83-711). NIFONG v. UNITED STATES. C. A. 4th Cir. Application for stay, addressed to JUSTICE BRENNAN and referred to the Court, denied. No. D-361. IN RE DISBARMENT OF MOORE. Disbarment entered. [For earlier order herein, see 462 U. S. 1114.] |