UNITED STATES SUPREME COURT DECISIONS ON-LINE

Two hours after retiring for deliberation in petitioner's trial for having allegedly violated 18 U.S.C. § 871(a) by threatening the life of the President, the jury by note asked the trial judge whether he would accept a verdict of "Guilty as charged with extreme mercy of the Court." The judge through the marshal answered affirmatively without notifying petitioner or his counsel. Five minutes later, the jury returned a verdict of guilty with the indicated recommendation, which was upheld on appeal.

Held:

"[T]he orderly conduct of a trial by jury, essential to the proper protection of the right to be heard, entitles the parties . . . to be present in person or by counsel at all proceedings from the time the jury is impaneled until it is discharged after rendering the verdict,"

Fillippon v. Albion Vein Slate Co., 250 U. S. 76, 250 U. S. 81, and, as Shields v. United States, 273 U. S. 583, and Fed.Rule Crim.Proc. 43 make clear, a criminal defendant has the right to be present "at every stage of the trial including the impaneling of the jury and the return of the verdict." Although a violation of Rule 43 may in some circumstances be harmless error, that conclusion cannot be reached in this case. At the very least, the trial court should have reminded the jury that its recommendation would not in any way be binding, and should have admonished the jury to reach its verdict without regard to what sentence might be imposed. In the circumstances of this case, the trial court's errors were such as to warrant this Court's taking cognizance of them regardless of petitioner's failure to raise the issue in the Court of Appeals or in this Court. Pp. 422 U. S. 38-41.

488 F.2d 512, reversed and remanded.

BURGER, C.J.,delivered the opinion for a unanimous Court. MARSHALL, J., filed a concurring opinion, in which DOUGLAS, J., joined, post, p. 422 U. S. 41. clubjuris

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