John Dale Henson is a Missouri state prisoner serving a sentence of 35 years for conviction, in Circuit Court of Butler County, Missouri, of second-degree murder. Henson claimed the homicide was in self defense or an accident. His petition for a writ of habeas corpus contends, among other things, that the jury selection process used in his trial violated the due process and equal protection clauses of the fourteenth amendment.
Petitioner contends the sheriff or his deputies selected bystander jurors for his trial upon order of the court pursuant to Mo. Rev.Stat. § 494.250(2). Petitioner contends that two of the sheriff’s deputies investigated the homicide and testified at trial. In the evidentiary proceeding before the magistrate, the sheriff testified that to select bystander jurors he would go through the phone book or a list prepared by his office and, knowing the people in the county, select “regular citizens [and] high standard people to be jurors.” The sheriff admitted that he would sometimes select jurors without relying on the phone book by calling people he thought would be available. Other times the sheriff would select standby jurors from local banks or businesses. The sheriff generally knew all the people he called. He made a conscious effort to select “solid citizens” and persons whom jury service would not inconvenience, e. g., retired persons or, in the winter, farmers. The sheriff’s office deputy, who aided in the selection of standby jurors, stated: “We would serve no one that we didn’t think would be reliable, dependable person to be a good juror.”
The sheriff testified that he was not personally involved in the investigation of the crime for which Henson was convicted. The deputy sheriff who was primarily responsible for the investigation of the defendant’s crime testified that he was not involved in selecting jurors or bystander jurors, serving subpoenas on jurors, or compiling the list of bystander jurors. The sheriff selected fourteen of his acquaintances to complete the venire panel for Henson’s trial. Seven of the twelve petit jurors came from the sheriff’s hand-picked list.
Contemporaneous Objection.
The state argues that the petitioner is precluded from raising an objection to the method of selection of bystander jurors under the contemporaneous objection requirement of
Wainwright v. Sykes,
Denial of Due Process.
The issue in this case is whether a sheriff whose subordinates investigated and arrested the defendant for a crime has violated the defendant’s due process rights by hand-picking from among the sheriff’s acquaintances the bystanders who became petit jurors. There appears to be no controlling Supreme Court or Eighth Circuit authority. The state argues that
Cravens
*1082
v.
United States,
The issue of the sheriff’s hand-picking jurors came before this court in another Missouri state prisoner’s habeas petition in
Ross v. Wyrick,
This court’s statements in
Ross
about the potential for officers to abuse their discretion in selecting jurors echoed the longstanding concerns of other federal courts.
Glasser v. United States,
And, its [the duty of selecting jurors] exercise must always accord with the fact that the proper functioning of the jury system, and, indeed, our democracy itself, requires that the jury be a “body truly representative of the community,” and not the organ of any special group or class. If that requirement is observed, the officials charged with choosing federal jurors may exercise some discretion to the end that competent jurors may be called. But they must not allow the desire for competent jurors to lead them into selections which do not comport with the concept of the jury as a cross-section of the community. Tendencies, no matter how slight, toward the selection of jurors by any method other than a process which will insure a trial by a representative group are undermining processes weakening the institution of jury trial, and should be sturdily resisted. That the motives influencing such tendencies may be of the best must not blind us to the dangers of allowing any encroachment whatsoever on this essential right. Steps innocently taken may, one by one, lead to the irretrievable impairment of substantial liberties.
Congressional concern for fundamental fairness in the method of selecting bystander jurors has caused federal selection methods to evolve from one of marshals selecting bystanders from persons present in court 3 to a method of random selection from specified lists in a manner ordered by the court. 4 This legislative change was prompted in large part by congressional desires to eliminate “subjective screening” of potential jurors. H.R.Rep. No. 1076, 90th Cong., 2d Sess., reprinted in [1968] U.S.Code Cong. & Ad.News, pp. 1792, 1794, 1797.
Furthermore, many state courts have also expressed concern over the unbridled discretion of officials in the selection of bystander jurors.
See State v. Olek,
Prejudice to the Defendant.
A number of state cases require the defendant to show actual prejudice before a conviction will be reversed on the grounds that the sheriff allegedly abused his or her discretion in the selection of bystander jur
*1084
ors.
See State v. Holt,
In
Humes v. Robbins,
Humes told his counsel that he mistrusted the sheriff’s disinterestedness in selecting talesmen and his counsel took the matter up with the court. The court thereupon called a conference in chambers with the prosecuting attorney, Humes’ attorney, and the sheriff, at which the court ordered the sheriff not to tell the persons he ordered into court for service as tales-men anything about the case upon which they might be selected to sit, or to mention Humes’ name in connection with it. It was also then agreed that Humes’ counsel might interrogate each talesman as he was called for examination prior to selection as a juror. . . . Neither Humes nor his counsel made any further objections to the selection of talesmen by the sheriff.
The constitutional defect in Henson’s jury is that the sheriff hand-picked his acquaintances to complete the venire panel. That some jurors were acquaintances of the sheriff would not itself invalidate the conviction.
United States v. Carr,
The potential for a conviction prone jury under such a system is substantial. Although perhaps not directly involved in the investigation of Henson’s crime, the sheriff was the immediate supervisor of the deputies in charge of the case. Regardless whether the sheriff had spoken with his deputies about the case or had formed an opinion as to Henson’s guilt before the trial, there is a great potential for the sheriff to hand-pick jurors sympathetic to the prosecution. Where, as here, the jurors are picked according to the sheriff’s subjective rather than objective criteria, the opportunity for the sheriff to express his allegiance to the prosecution by selecting sympathetic
*1085
jurors is unlimited.
Cf. Turner v. Fouche,
In addition to the likely predisposition of his selections, a jury could easily associate the credibility of the sheriff with his deputy, who testified against Henson. It is true that Henson’s trial counsel had the opportunity to show bias on voir dire and protect Henson from the potentially prejudicial selection methods of the sheriff. But where the potential of prejudice is so great we fail to see how an opportunity for counsel to conduct a voir dire can undo the harm already done. The subtleties involved in identifying jurors’ sympathies and predicting their evaluation of deputies’ prospective testimony are often too intangible to identify during voir dire. When the potential prejudice is as great as it was here a showing of actual prejudice to the defendant is not necessary in order to warrant a new trial. 5
We conclude that Henson was denied due process and a trial by a fair jury. A method employing random selection from a master jury list, appointing a special bailiff to select bystander jurors, or otherwise limiting the sheriff’s discretion would require more time to select such jurors, but fundamental fairness to the defendant requires some method better designed to obtain an impartial jury than the sheriff hand-picking among his acquaintances.
*1086 We hold that the ends of justice and due process will be served if Henson is granted a new trial.
The denial of the petition for a writ of habeas corpus is ordered reversed; the district court is ordered to grant the writ of habeas corpus directing release of the petitioner unless the petitioner is granted a new trial within a reasonable time as to be determined by the district court.
It is so ordered.
Notes
. Act of Mar. 3, 1911, ch. 231, §§ 279-280, 36 Stat. 1165, 28 U.S.C. §§ 416-417 (Supp. VII 1933), as amended by Act of Jan. 31, 1929, ch. 126, 45 Stat. 1145, 28 U.S.C. § 417 (1934). Section 417 provided:
When, from challenges or otherwise, there is not a petit jury to determine any civil or criminal cause, the marshal or his deputy shall, by order of the court in which such defect of jurors happens, return jurymen from the bystanders sufficient to complete the panel; and when the marshal or his deputy is disqualified as aforesaid [see 28 U.S.C. § 416 (1934)], jurors may be so returned by such disinterested person as the court may appoint, and such person shall be sworn, as provided in section 416 of this title.
These provisions have been replaced by Act of Mar. 27, 1968, P.L. 90-274, § 101, 82 Stat. 59, 28 U.S.C. § 1866(f), which is quite different from the earlier version.
. Where a federal marshal was involved in the investigation or prosecution of someone, the marshal was disqualified from selecting the bystander jurors. In such a situation, 28 U.S.C. §§ 416-417 (1934) required appointment of a disinterested person to select bystander jurors in the marshal’s stead.
Johnson v. United States,
. Act of Mar. 3, 1911, ch. 231, § 280, 36 Stat. 1165, 28 U.S.C. § 417 (1934).
. Act of Mar. 27, 1968, P.L. 90-274, § 101, 82 Stat. 59, 28 U.S.C. § 1866(f).
. In
Peters v. Kiff,
Moreover, even 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. This rule, too, was well established long before the right to jury trial was made applicable in state trials, and does not depend on it.... As this Court said in In re Murchison [349 U.S. 133 ,75 S.Ct. 623 ,99 L.Ed. 942 (1955)], supra, “[fjaimess of course requires an absence of actual bias in the trial of cases. But our system of law has always endeavored to prevent even the probability of unfairness.”349 U.S., at 136 [75 S.Ct., at 625 ].
These principles compel the conclusion that a State cannot, consistent with due process, subject a defendant to indictment or trial by a jury that has been selected in an arbitrary and discriminatory manner, in violation of the Constitution and laws of the United States. Illegal and unconstitutional jury selection procedures cast doubt on the integrity of the whole judicial process. They create the appearance of bias in the decision of individual cases, and they increase the risk of actual bias as well.
Id.
at 502-03,
The Court concluded:
It is in the nature of the practices here challenged that proof of actual harm, or lack of harm, is virtually impossible to adduce. For there is no way to determine what jury would have been selected under a constitutionally valid selection system, or how that jury would have decided the case. Consequently, it is necessary to decide on principle which side shall suffer the consequences of unavoidable uncertainty. See Speiser v. Randall,357 U.S. 513 , 525-526 [78 S.Ct. 1332 , 1341-1342,2 L.Ed.2d 1460 ] (1958); In re Winship,397 U.S. 358 , 370-373,90 S.Ct. 1068 , 1075-1077,25 L.Ed.2d 368 (1970) (Harlan, J., concurring). In light of the great potential for harm latent in an unconstitutional jury-selection system, and the strong interest of the criminal defendant in avoiding that harm, any doubt should be resolved in favor of giving the opportunity for challenging the jury to too many defendants, rather than giving it to too few.
Id.
at 504,
In
Turner v. Louisiana,
The Supreme Court has employed the vehicle of probability of prejudice to overturn other convictions as well.
See, e. g., Sheppard v. Maxwell,