In the
United States Court of Appeals
For the Seventh Circuit

No. 98-3659

GREGORY AGNEW,

Petitioner-Appellant,

v.

BLAIR J. LEIBACH,

Respondent-Appellee.

Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 95 C 3700--Blanche M. Manning, Judge.

ARGUED JANUARY 18, 2001--DECIDED MAY 21, 2001



  Before CUDAHY, KANNE and ROVNER, Circuit
Judges.

  ROVNER, Circuit Judge. Gregory Agnew
sought habeas corpus relief from his
conviction for armed robbery in Illinois
state court twelve years ago. In addition
to a claim for ineffective assistance of
counsel, Agnew maintained that the
Illinois trial court should have granted
him a mistrial when the State called as a
substantive witness of his guilt the
bailiff who had been in charge of the
jury throughout the first part of his
trial. The district court found that
Agnew could not show that he was
prejudiced by the bailiff’s testimony,
and that his attorney’s decisions were
reasonable under the circumstances, and
thus the court denied habeas relief.
Because the prejudice of the bailiff’s
testimony is inherent under relevant
Supreme Court precedent, we reverse and
remand.

I.

  Agnew was charged with armed robbery for
allegedly hitting a man over the head
with a garden hoe, and taking a dollar
from him in an altercation at a gas
station. Agnew intended to admit at trial
that he was involved in an altercation
with the victim, Carlos Duarte, but
planned to testify that the fight
concerned who had the right to use a pre-
paid gas pump, and that Duarte delivered
the first blow. Agnew denied that he took
any money from Duarte or that he intended
to take any money from him. The State’s
challenge was to show that Agnew was
motivated by robbery and that he, not
Duarte, was the attacker. In order to
prove all of the elements of robbery (as
opposed to battery), the State also was
required to show that Agnew in fact took
money from Duarte.

  The trial began on June 13, 1988./1
After hearing motions in limine, the
trial court asked the bailiff, Deputy
Fred House, to direct the prospective
jurors into their seats in the courtroom.
The court began conducting voir dire, but
before all the jurors were selected, the
court called a recess at noon for lunch.
At 1:30 p.m., the court reconvened and
completed jury selection. After another
brief recess, the trial commenced at
approximately 1:45 p.m. The State
presented three witnesses that afternoon
in support of the charge. Throughout this
portion of the trial, Deputy House
performed all the duties of a bailiff,
including ushering the jury in and out of
the courtroom.

  The first witness, Sandra Hill,
testified that she, Tommy Miller, Derrick
Lovelace, Bay Walls and Agnew were all at
the home of Haakeem Adu on the night in
question. Everyone present was drinking
beer and wine, and although the record
does not reveal whether they were
intoxicated, that would be a reasonable
inference to draw from their behavior
that night. In the wee hours of the
morning, Agnew began arguing with Miller,
and they went outside to fight. After the
fight, Miller noticed he was missing $200
in cash and some heroin. Hill, Miller,
Walls and Agnew searched unsuccessfully
for the missing items, and Walls then
left the party. Shortly thereafter, the
remaining revelers began to suspect that
Walls was the thief and Hill, Miller,
Lovelace and Agnew went out in Lovelace’s
car to look for him. For reasons not
revealed in the record, Miller placed a
garden hoe in the back seat of the car
next to Agnew. After driving around for
some time, and unable to find Walls, they
stopped at a gas station for snacks at
approximately 3:30 a.m. Hill testified
that at the gas station, Agnew said he
saw a Mexican man coming out of the
station with a large amount of cash in
his hands, and asked the others in the
car if anyone wanted to "be in on it."
Because the other passengers wanted no
part of this kind of trouble, they
declined, and when Agnew got out of the
car, they drove away from the station. As
they drove away, Hill heard a man yell,
and she turned and saw Agnew hitting a
man with the garden hoe.

  That man, Carlos Duarte, was the State’s
next witness. He testified that he
stopped for gas on his way to work, and
that he went into the station to pre-pay
for five dollars worth of gas with a
fifty dollar bill. He placed his change
in his shirt pocket as he went outside to
pump the gas, but he was hit on the head
from behind and fell to the ground. He
testified that Agnew grabbed him by the
collar and demanded money. Agnew searched
Duarte’s coat pocket, pants pockets and
wallet and took a dollar that he found in
a pants pocket. He did not find the $45
in Duarte’s shirt pocket. Duarte required
eight stitches for his injuries.

  The last witness in the State’s case-in-
chief was Officer Herbert Browne. He
testified that Agnew called the police
that night to report that Lovelace had
threatened him with a garden hoe and then
had stolen his jacket. Browne met with
Agnew at 4:30 a.m., and after Agnew
lodged his complaint, he asked the
officer if anyone had reported a robbery
in the vicinity of the gas station that
night. The officer did not record this
inquiry in his official report,
presumably because he did not consider it
significant at the time. Officer Browne’s
in-court testimony concluded at 3:45 p.m.
on the first day of Agnew’s trial, and
the court decided to recess for the day.
The jury was sent home for the evening.

  The assistant state’s attorney then
informed the court that the bailiff who
had been attending the jury, Deputy Fred
House, had come forward to report that on
the day Agnew was arrested some four
months earlier, the deputy had a material
conversation with Agnew. Deputy House had
apparently been stationed at the local
jail at the time of Agnew’s arrest. The
state’s attorney informed the trial court
that Agnew told Deputy House that he had
taken a dollar on the night in question.
The State wished to reserve the right to
call Deputy House as a rebuttal witness
if Agnew decided to testify in his own
defense. Acknowledging that a special
relationship is engendered by the bailiff
caring for the jury, the State requested
that the court appoint a different
bailiff to attend to the jury for the re
mainder of the trial. Agnew’s counsel
immediately moved for a mistrial. The
State opposed the motion, arguing that a
mistrial was premature because the State
was not certain it would call the Deputy
to testify. The State also contended that
there was no evidence that the jury was
improperly influenced, and that no
irreparable harm had been done in the
mere two hours of testimony that had been
taken at that time. Agnew’s counsel
maintained that whether or not the Deputy
had discussed the case with the jury was
irrelevant, and that the prejudice was
inherent when the person charged with
caring for the jury becomes a witness
against the accused.

  The court agreed that a different
bailiff should be appointed to take
charge of the jury for the remainder of
the trial. Agnew’s counsel declined the
court’s invitation to question the deputy
about any conversations he had with the
jurors, and the court commented that the
deputy’s contact with the jury at that
point was "extremely brief." Tr. at 224.
Finding that there was no "long term
involvement" with the jury as would occur
during sequestration, the court denied
the motion for a mistrial. Tr. at 225. No
one inquired whether the deputy had
accompanied the jurors to lunch, or to
what extent he had conversed with them
about any matter, including the trial. On
the next day, the State rested, and Agnew
took the stand in his own defense. He
told a decidedly different story. He
testified that he was a passenger in a
car with Lovelace, Miller and Hill on the
night in question. He claimed he was
simply seeking a ride home, but others in
the car decided to drive around town
looking for places to buy drugs.
According to Agnew, the group stopped for
gas, and Lovelace asked him to pump the
gas and get rid of the hoe. As Lovelace
went in to pay, Agnew tossed the hoe
towards a garbage can but missed. Agnew
testified that Duarte then walked up and
attempted to use the pump. They began to
argue over who had the right to use the
pump, and after Duarte kicked Agnew in
the groin, Agnew picked up the hoe and
fought back. Agnew denied taking any
money from Duarte. As he fought with
Duarte, Agnew saw Lovelace get back in
the car and drive away with Agnew’s coat,
which was still in the car. Agnew then
reported the theft of his coat to the
police, but did not mention the fight
because he feared expulsion from an
alcohol rehabilitation program he had
voluntarily joined.

  The defense rested and the State called
Deputy House in rebuttal. He testified
that he had been working at the Lake
County Jail on the day Agnew was
arrested. He stated he met Agnew during
the shift change, and asked Agnew, "What
the fuck are you doing here?" Deputy
House testified that Agnew replied, "It’s
over a dollar. Fucked up. This is over
one dollar. Someone should beat my ass
and let me go home." Deputy House
conceded that he did not write a report
of the conversation, and that he did not
realize the incident was important until
he sat through the first day of trial. At
that time, he informed his supervisor and
the state’s attorney about the
conversation.

  During closing arguments, the state’s
attorney drove home the significance of
this jail house conversation,
characterizing it as an admission and
mentioning it no fewer than six times.
Tr. at 282 ("[T]here’s no doubt that
Gregory Agnew did it because he admitted
to doing it."); Tr. at 285-86 ("Fred
House just took the stand and told you
that he told him that down there in that
bullpen on the 24th in the afternoon, he
asked him what the heck are you in here
for, what are you back for? I robbed him.
It was over a buck. It was over a fucking
dollar. You ought to whip my fucking ass
and send me home for a dollar. That’s
what he told him."); Tr. at 287 ("And you
know he did it because he admitted to it
to Fred House."); Tr. at 288 ("You had
the defendant’s own statement [that he
took money from Duarte]."); Tr. at 302
("Who is the next person we hear that is
talking about a robbery? That’s Deputy
House. . . . And again it’s a situation
where a very general comment was made by
Deputy House, what are you doing here?
And what are the defendant’s words? I
fucked up. . . . At that point he knew he
had done something wrong and he says this
is over a dollar, but he says more than
that, he says all I got was a dollar. You
should take me outside and whip me for a
dollar."); Tr. at 307 ("[A]nd then
finally you’ve got Fred House who says
the defendant made the comment that all
he got was a dollar."). After
deliberating for 31 minutes, the jury
returned a verdict of guilty of the
offense of armed robbery. The trial court
sentenced Agnew to 30 years of
imprisonment.

  Agnew appealed, complaining that the
court should have granted a mistrial when
the bailiff who attended to the jury was
allowed to testify as the sole witness to
his alleged confession. Agnew further
objected to the fact that this witness
was not revealed until the middle of the
trial. Agnew relied mainly on Turner v.
Louisiana, 379 U.S. 466 (1965), a case we
will consider in depth shortly. The
Illinois Appellate Court deferred to the
trial court’s statement that the contact
between Deputy House and the jury was
quite limited, and thus the Deputy’s dual
role in the courtroom was not prejudicial
to Agnew. People v. Agnew, 548 N.E.2d
1139, 1143 (Ill. App. 2 Dist. 1989). The
appellate court noted that although there
was some contact between the bailiff and
the jurors, it was nowhere near the
"continuous and intimate association"
present in the Turner case. Id. The court
remarked that the record does not
indicate what Deputy House’s duties were
before and after the jury was impaneled,
and that testimony lasted a mere two
hours on the first day of trial.
Moreover, the court commented that
"[t]here is no indication that he
provided them lunch, provided personal
services or had conversations with any of
the jurors. The trial judge was closer to
the events of the day and a direct
observer of the activities in the
courtroom." Id./2 The court also
rejected any argument about prejudice
arising from the late identification of
Deputy House as a witness because the
Deputy’s assignment to the courtroom was
accidental, and the court took steps to
minimize the prejudice to Agnew once the
situation came to light. The appellate
court therefore affirmed the trial
court’s order denying the motion for a
mistrial. Finally, the court rejected
Agnew’s challenges to his sentence, and
because he does not raise those issues in
his request for habeas corpus review, we
will not discuss those issues further.
The Illinois Supreme Court subsequently
twice denied Agnew’s petitions for leave
to appeal to that court. See People v.
Agnew, 553 N.E.2d 397 (Ill. 1990); People
v. Agnew, 647 N.E.2d 1011 (Ill. 1995).
Agnew therefore exhausted all of his
state court remedies before applying for
habeas corpus relief in the federal
court.

  In the district court, Agnew filed a
sec. 2254 petition raising six main
issues. See United States ex rel. Agnew
v. Detella, 1998 WL 483502, *4 (N.D. Ill.
Aug. 11, 1998). According to the district
court, he procedurally defaulted two of
these by failing to raise them in the
state courts when he had the opportunity.
Four claims remained: (1) the trial court
erred when it denied his motion for a
mistrial based on Deputy House’s
testimony; (2) the prosecutor’s closing
argument was so unfairly prejudicial as
to deprive him of a fair trial; (3) his
trial counsel was ineffective for failing
to accept the trial court’s invitation to
question the jurors to determine whether
they had been improperly influenced by
anything Deputy House said or did while
they were in his charge; and (4) his
trial counsel was ineffective for failing
to call or interview Lovelace and Miller,
who apparently would have recanted their
statements to the police that Agnew had
invited them to participate in the
robbery of Duarte. Id. The district court
rejected the first claim, finding that
the situation with Deputy House did not
deny Agnew a fair trial, and that the
probative value of the Deputy’s testimony
outweighed any prejudice. Deferring to
the trial court’s finding that the
contact between the Deputy and the jury
was quite limited, the district court
cited the Illinois Appellate Court for
the proposition that the Deputy did "not
appear to have conversed with the jurors
or provided them with lunch or personal
services." 1998 WL 483502 at *7. The
district court found that because of the
limited nature of the contact, Agnew’s
case was distinguishable from Turner and
Gonzales v. Beto, 405 U.S. 1052 (1972),
the two Supreme Court cases on which
Agnew relied. The court also found that
Deputy House was simply one of a number
of witnesses who testified against Agnew,
and that his testimony was by no means a
"smoking gun" that alone indicated his
guilt. Thus, even if the admission of the
Deputy’s testimony was error, the
district court found that it was
harmless, and did not result in the
denial of fundamental fairness. 1998 WL
483502 at *7-*8. The district court
similarly rejected Agnew’s three other
claims, and therefore denied his petition
for a writ of habeas corpus. Agnew
appeals.
II.

  Agnew filed his petition for a writ of
habeas corpus prior to April 24, 1996,
the effective date of the Antiterrorism
and Effective Death Penalty Act
("AEDPA"). Because the amendments to the
habeas corpus statute contained in that
Act do not apply, we will analyze Agnew’s
claim under the prior law. See Lindh v.
Murphy, 521 U.S. 320 (1997); Abrams v.
Barnett, 121 F.3d 1036, 1037 (7th Cir.
1997). Prior to the AEDPA, federal courts
disregarded the state court’s legal
conclusions and reached independent judg
ments on the issues presented to them,
but deferred to the state court’s
findings of fact. Koo v. McBride, 124
F.3d 869, 872 (7th Cir. 1997). Under the
pre-AEDPA standards, the petitioner is
entitled to plenary review of his claims.
This Court may rely on its own
jurisprudence as well as the Supreme
Court’s case law in determining whether
the state court’s conviction of the
petitioner is contrary to clearly
established federal law. Abrams, 121 F.3d
at 1037. Under the post-AEDPA scheme, we
may look only to the Supreme Court’s
holdings for that inquiry.

  In his appeal, Agnew contends that the
state trial court should have granted his
motion for a mistrial because the trial
bailiff was allowed to provide
substantive testimony regarding his
guilt, contrary to Gonzales v. Beto, 405
U.S. 1052 (1972) and Turner v. Louisiana,
379 U.S. 466 (1965). He maintains that
all of the courts to review this question
erred when they required him to prove he
was prejudiced by the bailiff’s
relationship with the jury rather than
assume inherent prejudice. He faults the
trial court for failing to develop a fact
record regarding the bailiff’s contacts
with the jury, and complains that his
attorney’s failure to develop such a
record post-conviction constituted
ineffective assistance of counsel.
Finally, Agnew argues that admission of
the bailiff’s testimony was reversible
error. He seeks a reversal of the
district court’s refusal to grant the
writ of habeas corpus.

A.

  More than one hundred years ago, the
Supreme Court recognized and warned
against the prejudicial effect of
communications between jurors and third
parties such as witnesses or court
officers. See Mattox v. United States,
146 U.S. 140 (1892). In that case, Clyde
Mattox faced murder charges in a Kansas
court. The evidence was entirely
circumstantial, but as the jury
deliberated, the bailiff, referring to
the defendant, told them, "This is the
third fellow he has killed." 146 U.S. at
142. Not surprisingly, the jury returned
a verdict of guilty, and Mattox was
sentenced to death./3

  The Supreme Court granted Mattox a new
trial. After noting the importance in
capital cases "that the jury should pass
upon the case free from external causes
tending to disturb the exercise of
deliberate and unbiased judgment," the
Court held:

Private communications, possibly
prejudicial, between jurors and third
persons, or witnesses, or the officer in
charge, are absolutely forbidden, and
invalidate the verdict, at least unless
their harmlessness is made to appear.

146 U.S. at 150. The Court noted a number
of cases litigated in the state courts in
which the presence of a bailiff in the
jury room during deliberations was held
fatal to the verdict even without a
showing of prejudice or improper
influence on the jury. In analyzing the
effect of the communication with the
bailiff in Mattox’s case, the Court
stated, "Nor can it be legitimately
contended that the misconduct of the
bailiff could have been otherwise than
prejudicial. Information that this was
the third person Clyde Mattox had killed,
coming from the officer in charge,
precludes any other conclusion." 146 U.S.
at 151. The Court thus recognized that
the bailiff, an officer of the court,
held special sway with the jury. The
Court found this fact alone sufficient to
overturn the verdict, but also ordered a
new trial on other grounds as well.

  Of course, the bailiff in the instant
case did not communicate with the jury
about Agnew’s guilt during deliberations,
but rather testified under oath at trial.
The record here reflects no misconduct on
the part of Deputy House. On the
contrary, as soon as he realized the
import of his prior conversation with
Agnew, he spoke to his supervisor and in
formed the state’s attorney about the
alleged confession. But even in the
absence of misconduct on the part of the
testifying deputy, the Supreme Court has
noted the prejudice inherent when a
bailiff attending the jury also testifies
against the defendant on a substantive
matter relating to his guilt. See Turner
v. Louisiana, 379 U.S. 466 (1965);
Gonzalez v. Beto, 405 U.S. 1052 (1972).
The Court set the standards for the
analysis in Turner.

  Turner was charged with murder committed
during the course of a robbery. After a
three-day trial, he was convicted and
sentenced to death. The two principal
witnesses for the prosecution were the
deputies who investigated the murder,
arrested and questioned Turner, and took
his written confession. The jury was
sequestered throughout the trial, and was
placed in the charge of the sheriff’s
office. As a practical matter, this meant
that the jury was continuously in contact
with the sheriff’s deputies, including
the two deputies who provided the most
damning testimony against Turner. These
deputies drove the jurors to a restaurant
for their meals, transported them to
their lodgings each evening, ate with
them, conversed with them and ran errands
for them. 379 U.S. at 467. There was no
evidence regarding what the deputies said
to the jurors, except that the deputies
themselves testified that they had not
discussed the case with any of the
jurors. Nevertheless, the Supreme Court
held that Turner was entitled to a new
trial. 379 U.S. at 474.
  Noting that the right to a jury trial
included the right to trial by a panel of
impartial, indifferent jurors, the Court
commented that, in a constitutional
sense, trial by jury implies that all of
the evidence against the accused will
come from the witness stand in a public
courtroom where there is full judicial
protection of the defendant’s rights of
confrontation, cross-examination, and
counsel. 379 U.S. at 472-73. That
evidence necessarily includes the
credibility of the witnesses against the
defendant. In Turner’s case, the
deputies’ testimony "was not confined to
some uncontroverted or merely formal
aspect of the case," and Turner’s guilt
turned on their credibility. Although
their credibility was challenged in the
courtroom, the "potentialities of what
went on outside the courtroom during the
three days of the trial may well have
made these courtroom proceedings little
more than a hollow formality." 379 U.S.
at 472-73. The Court explained that, even
assuming the deputies did not discuss the
case with jurors,

it would be blinking reality not to
recognize the extreme prejudice inherent
in this continual association throughout
the trial between the jurors and these
two key witnesses for the prosecution. We
deal here not with a brief encounter, but
with a continuous and intimate
association throughout a three-day trial-
-an association which gave these
witnesses an opportunity . . . to renew
old friendships, and make new
acquaintances among the members of the
jury.

379 U.S. at 473./4 Indeed, the Court
found it sufficient reason to overturn
the verdict that any two key prosecution
witnesses had engaged in this kind of
contact with the jury, but the fact that
they were deputy sheriffs made the
association even more prejudicial. 379
U.S. at 474. "[T]he relationship was one
which could not but foster the jurors’
confidence in those who were their
official guardians during the entire
period of the trial." Id. See also Parker
v. Gladden, 385 U.S. 363, 365 (1966)
("the official character of the bailiff--
as an officer of the court as well as the
State--beyond question carries great
weight with a jury which he had been
shepherding."). The Court noted that
Turner’s fate depended upon how much
confidence the jury placed in these two
witnesses, and reversed the judgment.

  Turner was followed seven years later by
a case that even more closely resembles
the circumstances of Agnew’s trial. In
Gonzales v. Beto, Gonzales was charged
with murder, and the primary witness
against him was the county sheriff who
wrote up the confession of the illiterate
defendant. Only one other witness
connected Gonzales to the crime, a person
who corroborated part of the sheriff’s
testimony. 405 U.S. at 1052. As in
Turner, the sheriff played a dual role at
trial. Not only was he the key witness
for the prosecution, but he was also the
bailiff in charge of the jury. During the
one-day trial, the sheriff conducted the
jury in and out of the courtroom, once
even stepping down from the witness stand
where he was undergoing cross-examination
in order to retire the jury at the
court’s request. 405 U.S. at 1052-53. He
walked with the jurors to a restaurant
for lunch, conversing with them along the
way. He also ate with them in a private
dining room at the restaurant. As the
jurors deliberated late in the afternoon,
they asked the sheriff/bailiff to bring
them soft drinks, which he did. 405 U.S.
at 1053. The jury returned a verdict of
guilty, and Gonzales eventually sought
habeas relief in federal court based on
Turner. Both the district court and the
court of appeals found Turner
distinguishable on the grounds that the
bailiff’s association with the jurors was
less extensive and less intense than the
association among the deputies and the
jurors in Turner, where the jurors were
sequestered for three days. 405 U.S. at
1054.

  The Supreme Court took a different view,
reversing the judgment of the district
court and the court of appeals in a
summary fashion, citing Turner. Three
justices filed a concurring opinion,
characterizing this contact between the
sheriff and the jury as "substantial and
continuing" over the course of the one-
day trial./5 405 U.S. at 1053.
Acknowledging that Turner did not set
down a rigid per se rule requiring
reversal of a conviction whenever a jury
came into contact with a witness, the
plurality noted a number of circumstances
where such an encounter would not present
a constitutional problem. For example,
association between a jury and a witness
whose testimony was confined to some
uncontroverted or merely formal aspect of
the case would not pose a problem. 405
U.S. at 1054. Similarly, most brief
encounters that occurred by chance would
not require reversal, and indeed
accidental meetings in the hallway or on
a courthouse elevator were described by
the Court as "often inevitable." 405 U.S.
at 1054-55.

  The distinction drawn by the plurality
was that, in Turner, the Court was faced
with crucial witnesses against the
defendant, who associated with the jury
as their official guardians throughout
the trial: "At the heart of our holding
in Turner lay a recognition of the great
prejudice inherent in the dual role of
jury bailiff and key prosecution
witness." 405 U.S. at 1055. The plurality
explained that the adversary system
demands that the roles of the
prosecution, the defense and the court be
kept separate and distinct in a criminal
trial:

When a key witness against a defendant
doubles as the officer of the court
specifically charged with the care and
protection of the jurors, associating
with them on both a personal and an
official basis while simultaneously
testifying for the prosecution, the
adversary system of justice is perverted.

405 U.S. at 1055-56. Noting that the
extent and intensity of the association
between the bailiff and the jury will
vary from case to case, the plurality
found that in this case, it could not be
characterized as de minimis, even though
the trial lasted only one day and the
jury was not sequestered. 405 U.S. at
1056. Given the inherent prejudice
recognized in Turner, the plurality
declared, "It is enough to bring the
petitioner’s case within the four corners
of Turner that the key witness for the
prosecution also served as the guardian
of the jury, associating extensively with
the jurors during the trial." 405 U.S. at
1056.

B.

  With that framework in place, we now
turn to the facts of Agnew’s trial.
Deputy House served as the bailiff for
the first day of Agnew’s two-day trial.
The trial court replaced him as bailiff
when it became apparent that the deputy
would also serve as a witness for the
prosecution. The record does not reveal
whether the deputy accompanied any jurors
to lunch on the first day of the trial,
and the trial court characterized the
contacts between Deputy House and the
jurors as "extremely brief," with no
"long term involvement." Of course, a
trial judge would not be in a position to
view contacts between the bailiff and the
jury that occurred outside the courtroom,
and no one inquired about those contacts.
Thus, the record contains no information
about the deputy’s out-of-court contact
with the jurors. Everyone agrees that
Deputy House, in his capacity as bailiff,
accompanied the jury in and out of the
courtroom on numerous occasions and
generally performed the functions of a
bailiff. Turner and Gonzales both
emphasize the special nature of the
relationship between the bailiff and the
jurors under his charge. This was not a
chance encounter on an elevator but was a
continuous association throughout the
first day of a two-day trial. Under
Gonzales, this association is enough to
infect the proceedings with extreme
prejudice even in the course of a one-day
trial, and it is impossible to draw a
principled distinction between the trials
of Agnew and Gonzales. See Smith v.
Collins, 977 F.2d 951, 957 (5th Cir.
1992), cert. denied, 510 U.S. 829 (1993)
("if a person serves as both a bailiff
and a witness in the same trial, the
conviction is invalid."). Nor is it
relevant that we do not know if the
bailiff ever discussed the case with the
jurors. See Turner, 379 U.S. at 473 (even
assuming the bailiff never discussed the
case with the jurors, extreme prejudice
is inherent when the jury is in a
continual association with key witnesses
who acted as official guardians for the
jury). During the time the jury
associated with Deputy House, they had
the opportunity to develop confidence in
his word in ways that were not subject to
cross-examination or the right of
confrontation. Because Deputy House’s
credibility was key to Agnew’s
conviction, the "potentialities of what
went on outside the courtroom" during
that first day of trial may have rendered
any in-court proceedings "little more
than a hollow formality." Turner, 379
U.S. at 473. Under Turner and Gonzales,
that opportunity for the bailiff to gain
credibility with the jury outside the
courtroom is fatal to the verdict if the
bailiff’s testimony relates in a
substantive way to the defendant’s guilt.


  The importance of Deputy House’s
testimony is the source of some dispute.
The State was quite anxious to use the
testimony at trial, but the government
now seeks to minimize its importance. The
government claims that Agnew would have
been convicted anyway because of the
testimony of Carlos Duarte, Sandra Hill
and Officer Herbert Browne. Agnew, of
course, admitted that he hit Duarte with
the garden hoe. The issues at trial were
whether he struck the first blow and
whether he also robbed Mr. Duarte.
Officer Browne testified that Agnew asked
him whether anyone had reported a robbery
near the gas station that night. Sandra
Hill testified that Agnew commented on
how much money Duarte was carrying and
asked if anyone wanted "in on it" as he
exited the car. She also testified that
she saw Agnew hit Duarte with the garden
hoe. Finally, Duarte himself testified
that Agnew hit him in the head with the
hoe, and then rifled through his pockets
looking for money, ultimately finding and
taking a single dollar from him. Duarte
was the only direct witness to the
robbery.

  With that perspective in mind, we
examine Deputy House’s testimony. Deputy
House reported that Agnew confessed to
him that the fight was "over a dollar."
This testimony constituted substantive
evidence of Agnew’s guilt. It
contradicted Agnew’s in-court description
of the incident in two important ways.
First, it revealed that the altercation
was not related to which party had the
right to use a pre-paid gas pump, casting
doubt on Agnew’s version of who struck
the first blow. Second, it verified that
Agnew took money from Duarte, one of the
elements of robbery the State was
required to prove. The Deputy’s testimony
could not be characterized as "confined
to some uncontroverted or merely formal
aspect of the case for the prosecution."
Turner, 379 U.S. at 473. Rather, the
testimony related to the central issue in
the case, whether a robbery occurred or
whether Agnew was simply defending
himself in a fight over the right to use
a particular gas pump.

  Indeed, both Turner and Gonzales are on
point here, because in both of those
cases, the officers who served dual roles
as sheriffs and bailiffs testified about
alleged confessions by the defendants. In
each case, the Court characterized the
bailiffs as "key witnesses" for the
prosecution under circumstances
indistinguishable from Agnew’s case.
Turner, 379 U.S. at 473; Gonzales, 405
U.S. at 1055. The prosecution certainly
drove home the importance of this
testimony by mentioning it repeatedly in
closing arguments and characterizing it
as an admission that Agnew had robbed
Duarte. Moreover, Deputy House testified
in uniform, and the prosecutor drew
attention to the fact that this was the
same deputy who had shepherded the jury
the previous day. Thus, both of the
elements of Turner were present: the
deputy had a special relationship with
the jury, and he provided key testimony
relating to substantive evidence of the
defendant’s guilt.

C.

  The government argues that Agnew has
twisted the rule announced in Turner to
imply that prejudice is inherent when an
officer of the court testifies regarding
issues that are material to the
prosecution. Citing an Eleventh Circuit
case, the government urges us to find
that there is no per se rule requiring
reversal in these circumstances, and that
prejudice must be shown when the contact
between the court officer and the jury is
de minimis. See Johnson v. Wainwright,
778 F.2d 623 (11th Cir. 1985), cert.
denied, 484 U.S. 872 (1987). The
government’s application of Johnson to
the facts of Agnew’s case stretches the
principle past the breaking point. In
Johnson, the sheriff acted as a bailiff
at trial, and also assisted the
prosecution by investigating the crimes
and aiding counsel during jury selection.
778 F.2d at 626. The Eleventh Circuit
agreed that Turner and Gonzales were
relevant in analyzing the dual role of
the sheriff. The court acknowledged that
the bailiff’s exercise of his official
duties likely gave him added legitimacy
in the eyes of the jury, and that the
bailiff’s participation in the
prosecution of the case created at least
the potential for prejudice. The court
refused to subscribe to a per se rule of
reversal, however, without considering
how central a role the bailiff played in
the proceedings:

When either the individual’s official
contact with the jury or his
participation in the prosecution is so
minimal in the jurors’ eyes as to have a
de minimis impact on the jury’s
deliberations for all apparent purposes,
some showing of actual prejudice must be
made.

778 F.2d at 627. The court found that
Johnson’s trial was such a case. The
bailiff did participate in the pretrial
investigation, his name came up in the
testimony of several prosecution
witnesses and he aided in the selection
of the jury. However, he never took the
witness stand and there was no evidence
that the jury was aware that he
participated in the jury selection
process. Id. Given that his participation
in the state’s presentation of its case
was at most peripheral so far as the jury
could tell, the court found that more
than speculation about prejudice was
needed; it required the defendant to
demonstrate actual prejudice. Id. Johnson
is clearly distinguishable from Agnew’s
case. In Johnson, the bailiff never
testified and thus his credibility was
never at issue. In contrast, both Turner
and Gonzales dealt with bailiffs who
testified at trial, as the bailiff did
here. Although we cannot tell from the
opinion in Johnson the context in which
the sheriff’s name was mentioned
byprosecution witnesses, it is clear that
the sheriff’s credibility was not at
issue. Thus, any special confidence the
jury developed in him because of his
caretaking role was irrelevant to their
assessment of the defendant’s guilt.

  Similarly, the government’s citation to
Johnson v. Dugger, 932 F.2d 1360 (11th
Cir. 1991), cert. denied, 502 U.S. 961
(1991), is inapposite. This case was a
follow-up to Johnson’s earlier appeal,
where Johnson claimed to have new
evidence of actual prejudice. The
government cites Dugger for the
proposition that "The central issue with
respect to actual prejudice is whether
the actions of the sheriff through his
responsibilities as bailiff have
undermined the impartiality of the jury."
932 F.2d at 1366. Although we have no
quarrel with that general proposition, a
defendant need prove actual prejudice
only where the bailiff’s contact with the
jury is de minimis or the bailiff’s
testimony involves some merely formal
aspect of the case. When the bailiff’s
contact is extensive and the testimony
addresses substantive issues of the
defendant’s guilt, prejudice is presumed.

D.

  The government finally contends that
even if the trial court erred in allowing
Deputy House to testify after he had
served as bailiff, the error was
harmless. Neither party briefed the issue
of whether this is the type of
constitutional error subject to harmless
error analysis, or whether it should be
treated as a structural error. In both
Turner and Gonzales, the Supreme Court
granted the writ without considering
whether the error was harmless.
Nevertheless, we need not decide today
whether the error is structural because
we find in any event that it was not
harmless. Constitutional error is
harmless if it appears beyond a
reasonable doubt that the error
complained of did not contribute to the
verdict obtained. Neder v. United States,
527 U.S. 1, 15-16 (1999) (citing Chapman
v. California, 386 U.S. 18 (1967)). In
determining whether error was harmless,
we look to such factors as (1) the
importance of the witness’ testimony in
the prosecution’s case; (2) whether the
testimony was cumulative; (3) whether
other evidence corroborated or
contradicted the witness’ testimony; and
(4) the overall strength of the
prosecution’s case. United States v.
Ochoa, 229 F.3d 631, 640 (7th Cir. 2000);
United States v. Castelan, 219 F.3d 690,
696 (7th Cir. 2000). The government bears
the burden of demonstrating that
constitutional error is harmless beyond a
reasonable doubt. Castelan, 219 F.3d at
696.

  Reviewing these factors, a confession
was certainly important to the
prosecution’s case. Agnew had pleaded
self-defense, and that testimony was
contradicted only by the victim. Deputy
House was the only witness to Agnew’s al
leged confession, and so the Deputy’s
testimony was not cumulative in any
sense. Because no one else witnessed the
confession, the Deputy’s testimony was
not corroborated, although there was
evidence from Duarte and Hill that
corroborated the content of the alleged
confession. Finally, the case against
Agnew was weak enough that the prosecutor
risked the validity of the verdict by
putting Deputy House on the stand to
rebut Agnew’s explanation of the
incident. Reviewing these factors as a
whole, and considering the Supreme
Court’s conclusion that the prejudice of
such testimony is inherent, we find that
the error was not harmless.

III.

  Because the bailiff’s contacts with the
jury were of a continuous and intimate
nature typical of the bailiff/jury
relationship, and because Deputy House’s
testimony constituted substantive
evidence of Agnew’s guilt, the trial
court should have granted a mistrial to
avoid the extreme prejudice inherent in
those circumstances. Agnew is thus
entitled to habeas corpus relief. For
that reason, we reverse the judgment of
the district court and remand this case
to the district court with directions to
issue an order granting the petition for
a writ of habeas corpus, unless the State
of Illinois provides Agnew with a new
trial in accordance with this opinion
within 120 days. Because we reverse on
this ground, we need not address any of
Agnew’s other arguments in support of
reversal.

REVERSED AND REMANDED.

FOOTNOTES

/1 We take the facts regarding the manner in which
the trial was conducted from the record and from
the opinion of the Illinois Appellate Court in
Agnew’s direct appeal. See People v. Agnew, 548
N.E.2d 1139 (Ill. App. 2 Dist. 1989).

/2 Of course, as we will discuss later, there is no
indication in the record that Deputy House did
not provide lunch to the jurors, accompany them
to lunch, provide personal services to them, or
converse with them. Although the trial judge was
closer to the events of the day and a direct
observer of activities in the courtroom, the
issue here, as we shall see, ultimately turns on
what may have happened outside the courtroom, out
of the view of the trial judge.

/3 The jury had also been exposed to a newspaper
article about the case, printed after delibera-
tions were underway, which declared, "If he is
not found guilty of murder he will be a lucky
man, for the evidence against him was very
strong, or, at least, appeared to be to an
outsider." 146 U.S. at 143. The article also
described the State’s closing argument as "so
strong that the friends of Mattox gave up all
hope of any result but conviction." 146 U.S. at
143. The article portrayed Mattox’s mother as
appearing pale, with her face indicating very
little hope, and credited her with standing by
her son through all of his difficulties, includ-
ing having "been tried for his life once before."
146 U.S. at 143-44.

/4 One of the deputies testified that he knew most
of the jurors before the trial, and that during
the trial, he made new acquaintances with the one
or two he did not know. 379 U.S at 469 n.6.
Turner did not object to the fact that the deputy
was acquainted with a number of jurors before the
trial began, and the Supreme Court did not dis-
cuss this additional problem.

/5 The case also drew a dissent by two justices, who
characterized the contact between the bailiff and
the jury as closer to a brief encounter than a
continuous and intimate association. The dissent
also noted that the trial took place in a small
town, and that the sheriff was already acquainted
with every member of the jury. 405 U.S. at 1059.
The dissent also found determinative that Gonza-
les never objected to the sheriff’s dual role.
405 U.S. at 1060.
