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| NESBA Ae Hie: ype afies| Me aR 40 Sheppard v: Maxwell No. 16077 stability of the law anda nation’s respect for its courts will disappear if, long after the event, their judgment may be set aside because a trial judge’s discretion was less than perfectly exercised or because it is thought that the trial plan of defense counsel was. not the best that could have een employed. This must be especially true where an accused has enjoyed adequate and full opportunities for appellate review. 4) Misconduct of bailiffs in allowing Jurors to call their - ‘families. Ohio has a statute which provides for keeping a jury together from the time the cause is finally submitted until they agree upon a verdict. Overnight separation is per- mitted during adjournments of their deliberation. Ohio Revised Code § 2945.33 further provides that the officer in charge of the jury “shall not permit a communication to be made to them.” As noted above, the Sheppard jury was not sequestered until the case was finally submitted. At that time, an entire floor of a hotel was set aside for occupancy by the jurors and the officers in charge of them. The tele- phones in each of the rooms occupied by the jurors were disconnected, but telephones in the officers’ rooms remained in service. The stipulation of facts in the habeas corpus proceeding recites that during the days of their sequestra- tion, but obviously not while they were actually engaged in their deliberations, various members of the jury were permitted to use the telephones in the bailiffs’ rooms. “The calls were placed by the jurors. No records were kept as to the numbers called, the parties called, talked with, or the calling jurors. The bailiffs sat next to the phone as the conversations took place, but could only ear that half of the conversation made by the juror; what was said to the jurors could not be heard by ‘ the bailiffs. The Court was never asked for permission * to.allow the jurors to make these calls, and no per- mission was ever given.” ~ While the District Court’s opinion recites the foregoing stipulation, there was also before it the entire record of the Common Pleas Court, including the hearing on peti- tioner’s motion for new trial and the investigation then made of the telephone calls. Not mentioned by the District Judge or by the dissenting opinion is the testimony of Ce sce No. 16077 Sheppard v. Maxwell 41 bailiff Francis, taken at the hearing on the motion for new trial, as follows: 74 “Q. Do you know, of your own knowledge, whether there was any telephone communications made out of any of the respective rooms that were occupied by any members of the jury? - “A. Their phones were cut out, Mr. Garmone. “Q. And were there any telephone calls made from the room that you occupied? _ “A. Yes, sir. a “Q. Did you make the calls, or did the jury make the calls? : “A. No. The jury made the calls, and I sat in the chair right alongside the telephone. -_ * * * * * “Q. Mr. Bailiff, what was the purpose of the calls that the jurors made in your presence? “ * * * * * “A. Well, they were made to their husbands and wives, and those that had children, they :talked to the children. _ “Q. Was there any conversation whatsoever about this case or their deliberations? aan “A. Not one word, Mr. Parrino.” The calls of the jurors were made the subject of an assignment of error on appeal, but the Supreme Court of Ohio refused to find cause for reversal in what happened. State v. Sheppard, 165 Ohio St. 298, 298-99.: Upon this subject the court said: oe “In situations such as those in the Adams and Emmert cases, it is easy to presume prejudice to the defendant as a result of the conduct of the bailiff. Can the same be said of the conduct of the bailiffs here in permitting jurors, who for several days and nightshad been sequestered and unable to see or hear from their hus- bands, wives or children, to telephone those: members of their families? We do not think so. There is, on the contrary, every reason to believe that assurances of the health and welfare of their loved ones would tend