and she (Mrs. Henson) then realized that Mrs. Smith's son was the defendant, Jesse Brown.
3. The Court was not informed of the above by either of the respondents.
On these facts alone, the Court concludes that both respondents are guilty of criminal contempt. Both respondents were obligated by force of their oaths and consequent responsibilities to immediately inform the Court of the information they had obtained during the trial.
Mrs. Smith's statement -- even if said 'in passing', as characterized by respondent Skeens -- was far too suggestive to ignore. Particularly is this so when it is realized that Skeens could not have been certain an 'acquaintance' was all that was involved -- he did not carefully inquire of Mrs. Smith the precise nature of her relationship with the juror, Mrs. Henson. To make matters worse, an obvious opportunity to inform the Court later presented itself when, during its deliberations, the jury requested the Court to repeat certain parts of the charge and the Court conferred with counsel about the request. This was after Mrs. Smith had testified, of course, and after respondent Skeens' conversation with Mrs. Smith at the rear of the courtroom, and consequently at a time when Skeens knew the juror, Mrs. Henson, had not informed the Court of her knowledge. Even if he thought the relationship too inconsequential to mention -- what reason could he assign to her (Mrs. Henson's) silence? Could he rightfully assume that she also considered the relationship too slight to mention? There was no basis for such an assumption and even if there were, a duty existed to inform the Court so that it could inquire into the actual relationship and the effect upon the trial.
Clearly, Mrs. Henson was required to inform the Court of her prior relationship with the defendant's mother. Such an obvious duty cannot be excused away as the neglect of a woman unsophisticated in the ways of the court. Neither can it be justified as stemming from diffidence towards disturbing the progress of the trial since a whispered aside to the ever-present marshal would have sufficed. Moreover, Mrs. Henson knew at a time when the Court could have solved the problem by simply excusing Mrs. Henson and appointing an alternate in her place. Thus a new trial would not have been necessary had she but come forward at any time before the jury retired for its deliberations.
Judge Vogel has stated that
'The jury system has been one of the greatest bulwarks in the defense of individual freedom. Its adoption marked a tremendous step forward in the protection of the individual from the whims of an all-powerful state and its arbitrary judges. The effectiveness of its operation depends upon the courage, the honesty and the intelligence of the individuals who make up our juries. The jury system as it has operated in the past has been a matter of pride to the judges and members of the bar of this court. It has had and justly earned the respect of the general public.' United States v. Freedland, D.C.S.E.N.D.1953, 111 F.Supp. 852, 856.
We can assure the retention of this respect only if an atmosphere of unbiased and scrupulous honesty can be easily attributed to the deliberations and decision of the jury. In turn, this is possible only if we maintain a constant vigilance over the source and nature of all information imparted to our jurors.