Waterman, Senior Circuit Judge, and Friendly and Feinberg, Circuit Judges.
Petitioner Craig S. Owen was tried early in 1966 in the County Court of Oneida County, N.Y., with one Sebregandio, on charges of first degree robbery, second degree assault and first degree grand larceny. After some 13 to 14 hours of deliberation and a report of inability to agree with respect to one defendant, the jury returned to the courtroom around 2 A.M. and the foreman reported both defendants had been found guilty on all counts. When the jury was being polled with respect to Owen, one juror, Thomas S. Kassouf, inquired whether it was possible to convict only of grand larceny "or do we have to have the whole three?" When the judge declined to discuss the matter, Kassouf endorsed the foreman's report. Evidently sensing that something might be amiss, Owen's attorney, Mr. Tierney, obtained an affidavit from Kassouf. In addition to claiming that the foreman, Mr. Jeffrey, had told the jury that it had to find the defendants guilty on all three charges or none*fn1 but that he and several other jurors had voted to convict on the grand larceny charge alone, Kassouf averred that Jeffrey and two other jurors, Mrs. Janak and Mrs. Taurisano, informed the other jurors that they "knew all about" Craig Owen, and referred to unfavorable incidents in Owen's life which were entirely unrelated to the charge. Another juror, Mr. Tucker, made an affidavit that these same three jurors "informed the jury that they knew various things about Craig Owen and that they had reason to believe from outside information that he was guilty."
At the time of sentence, Mr. Tierney submitted Kassouf's and Tucker's affidavits in support of a motion for a new trial. This was denied. On appeal, Owen challenged the propriety of the alleged infiltration of extra-record evidence into the jury's deliberations, but the Appellate Division affirmed without opinion, People v. Owen, 28 A.D.2d 824, 282 N.Y.S.2d 721 (4th Dept. 1967),*fn2 and a judge of the Court of Appeals denied leave to appeal. After the second decision in People v. De Lucia, 20 N.Y.2d 275, 279, 282 N.Y.S.2d 526, 530, 229 N.E.2d 211 (1967), seemingly repudiating the New York rule against jurors' impeachment of their verdict in the case of "inherently prejudicial 'outside influences,'" Owen applied for reconsideration of the denial of leave to appeal, but without success.
Owen's petition for federal habeas in the District Court for the Northern District of New York contended, inter alia, that he had been convicted on less than a unanimous verdict and had been deprived of his Sixth Amendment right to confrontation by the jury's considering extra-record statements about him by three jurors. Finding the state record insufficient to enable him to dispose of these issues, Judge Port conducted an evidentiary hearing. Kassouf and Tucker testified along the lines of their post-trial affidavits; a third juror, Shultz, stated only that some juror had said that "Owen's father was always getting him out of trouble." Mr. Jeffrey denied having made or heard any adverse statement, save only that one juror (evidently Mrs. Janak, whose husband was an investigator) had commented that Owen, while a member of the Utica Police Department, had taken a prowl car outside the city limits. Mrs. Janak and Mrs. Taurisano denied having made or heard any comments on matters not in evidence. Upon the basis of the testimony, the court found:
In substance, the jurors or some of them were told by other jurors during the trial and the deliberations: that the defendant had been in trouble all his life; that he had been suspended from the police force in connection with the unauthorized use of a prowl car; that he had been involved in a fight in a tavern; that one of the juror's husband was an investigator and that he knew all about plaintiff's background and character, which was bad; and that petitioner's father was always getting him out of trouble.
Concluding that in consequence Owen had been deprived of his Sixth Amendment right of confrontation, therefore making it unnecessary to deal with the claim of a less than unanimous verdict, the judge set aside Owen's convictions and ordered his discharge, unless the State retried him within 60 days, this period to be extended pending any appeal. The State has appealed.
Although the findings went to the verge permitted by the evidence at the post-trial hearing, the State does not and could not properly ask us to reject them as clearly erroneous. It contends rather that, accepting them, we should reverse as a matter of law.
Both parties recognize Parker v. Gladden, 385 U.S. 363, 87 S. Ct. 468, 17 L. Ed. 2d 420 (1966), to be the starting point for discussion. That case makes it plain that if a bailiff testified he had entered the jury room and had made statements such as the district court found were here made by jurors about Owen, the confrontation clause of the Sixth Amendment and the due process clause of the Fourteenth would require a judgment of conviction to be set aside. We think the result would be the same if a non-juror, who was neither a court officer nor a witness, admitted to having made such statements to the jury here. To be sure, in rejecting Oregon's argument in Parker that no harm could have resulted, the Court said, 385 U.S. at 365, 87 S. Ct. at 470:
This overlooks the fact that 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 for eight days and nights.
Cf. Remmer v. United States, 347 U.S. 227, 229-230, 74 S. Ct. 450, 98 L. Ed. 654 (1954). But that was written in a context where the bailiff's remarks were only an unsupported statement of opinion, "that wicked fellow * * * is guilty," and an assurance that any error by the jury in finding him so would be corrected by the Supreme Court. The Court might well have thought that if such statements had been made by a person who was neither a witness, cf. Turner v. Louisiana, 379 U.S. 466, 85 S. Ct. 546, 13 L. Ed. 2d 424 (1965), nor an official, they would not have been weighty enough to constitute a prejudicial violation of a defendant's rights under the confrontation or due process clauses, per contra when made by an official, however lowly. The statements here found to have been made were sufficiently more damaging to Owen than the remarks of the "apparently Elizabethan-tongued bailiff" in Parker, 385 U.S. at 367, 87 S. Ct. 468 (dissenting opinion of Harlan, J.), that the added factor of official utterance would not be required to show prejudice.
If our analysis is correct up to this point, we must affirm unless (1) it makes a legally significant difference that the remarks here were by jurors rather than the hypothetical non-juror or (2) New York may lawfully rule out jurors' testimony as a source of proof of the facts here alleged or (3) petitioner has waived his rights.
Consideration of the first point takes us back to the jury's earliest days. The thirteenth century jury was selected not because of its ignorance but because of its knowledge. "The decision upon questions of fact was left to them because they were already acquainted with them, or if not already so acquainted with them, because they might easily acquire the necessary knowledge." 1 Holdsworth, A History of English Law 317 (3d ed. 1922). See also 2 Pollock & Maitland, The History of English Law 624-27 (2d ed. 1898). Members of the presenting jury were allowed to be members of the petty jury until a mid-14th century statute permitted challenge in cases of trespass or felony, 25 Edw. III, St. 5, c. 3 (1351-52). It was only gradually that the character of the petty jury changed. By 1468 Sir John Fortescue was "able to regard the jury as a body of impartial men who come into court with an open mind; instead of finding the verdict out of their own knowledge of the events, the parties or their counsel in open court present their evidence to the jury, and witnesses are examined upon oath." However, "jurors were still allowed to use their own knowledge in reaching a verdict, and might reach a verdict although no witnesses and no evidence had been produced." Plucknett, A Concise History of the Common Law 129-30 (5th ed. 1956). Another four centuries were to elapse before Parliament provided in 1856 that a jury "trial could be moved to the Central Criminal Court if it was feared that a local jury would not be impartial." Id. at 128.
The twentieth century American jury has moved a long way from its medieval origins. Today's juror must be "indifferent" and "his verdict must be based upon the evidence developed at the trial." Irvin v. Dowd, 366 U.S. 717, 722, 81 S. Ct. 1639, 1642, 6 L. Ed. 2d 751 (1961). See also Patterson v. Colorado, 205 U.S. 454, 462, 27 S. Ct. 556, 51 L. Ed. 879 (1907). Still we would not lightly assume that the jury's original role as the voice of the country may not sufficiently persist that neither the specific guarantees of an impartial jury and of confrontation nor the more general one of due process would be violated simply because jurors with open minds were influenced to some degree by community knowledge that a defendant was "wicked" or the reverse,*fn3 even though this was not in evidence. See Irvin v. Dowd, supra, 366 U.S. at 722-723, 81 S. Ct. 1639. One, although by no means the only, purpose of the insistence on trial in the vicinage both in Article III, § 2, and in the Sixth Amendment, must have been to entitle a defendant to trial where he is known -- and this may sometimes work against him rather than in his favor. Indeed there are still sections of the country where it might be impossible to find twelve jurors who were totally ignorant about a defendant. Moreover, to allow verdicts to be attacked merely for casual jury-room references on the basis of matters not in evidence would add unduly to the already fragile state of criminal convictions. See United ...