Sheppard v. Bagley

I concur with the majority opinion and write separately only to emphasize two points.

I. United States v. Remmer was abrogated by Smith v. Phillips

The dissent begins by stating “the law is clear, the facts are clear and our Court is clearly mistaken in its view that defense counsel were not ‘diligent’ ”; he then asserts that in Remmer the Supreme Court established “a clear procedure to deal with this kind of ex parte communication.”

In a criminal case, any private communication, contact, or tampering, directly or indirectly, with a juror during a trial about the matter pending before the jury…