dissenting.
I would deny certiorari in this case because I am not at all persuaded that the United States Court of Appeals for the Ninth Circuit was wrong in affirming the District Court’s decision to issue a writ of habeas corpus, or that the case presents an issue worthy of plenary review. I therefore dissent.
As the discussion that this case has generated illustrates, it is not simply a situation where the federal habeas courts have disregarded the guidance provided by Sumner v. Mata, 449 U. S. 539 (1981), and Smith v. Phillips, 455 U. S. 209 (1982). Nor does it involve a question over which the lower courts are confused or that is likely to recur often.
*151The Court indicates that the Ninth Circuit “affirmed on the basis that an unrecorded ex parte communication between trial judge and juror can never be harmless error,” and with that proposition the Court “emphatically disagree^]”. Ante, at 117. While that interpretation of the Court of Appeals’ opinion is possible, it certainly is not compelled. The entire discussion by the Court of Appeals on this issue is as follows:
“The state court made no contemporary record of the ex-parte communication between judge and juror or even of the fact that it took place. In this case the district court correctly concluded that the condition of the record made it impossible to apply intelligently the harmless error test. Chapman v. California, 386 U. S. 18, 22 (1966). The court’s explanation of its decision to grant the habeas writ referred to the inadequacy of the state’s record and the need for extensive speculation in determining the extent of the error. See Sumner, 449 U. S. at 551. The harmless effect of conceded constitutional error cannot be established by speculation from a silent record.” App. A to Pet. for Cert. 4-5.
The District Court had devoted what now provides 54 pages in the appendix to the petition for certiorari to a consideration whether the constitutional error assumed by the state courts could be determined to be harmless beyond a reasonable doubt in a post-trial hearing. The Ninth Circuit at that time had a rule that for certain constitutional errors, an after-the-fact determination of harmless error was impossible. The District Court concluded that the error here required automatic reversal. It then examined the record of the hearing and found its decision that no after-the-fact determination of harmlessness was possible reinforced by the paucity of evidence as to whether the juror, in fact, had been able to vote impartially. As I read those opinions, they indicate something far short of a determination that an *152unrecorded ex parte communication between a trial judge and a juror can never be harmless error.
This Court has not yet held that a federal habeas court is barred by principles of federalism from carrying out its statutory duty under 28 U. S. C. § 2254(d) to determine whether the state court’s factual determination is fairly supported by the record. In Smith v. Phillips, supra, the Court found a conclusive presumption of juror bias inappropriate because it was not impossible to determine in an after-the-fact hearing whether the juror had been biased. Nothing in the opinion in that case, however, foreclosed the possibility that a conclusive presumption of bias might be called for in special circumstances. The concurring opinion pointed out:
“[I]n certain instances a hearing may be inadequate for uncovering a juror’s biases, leaving serious question whether the trial court had subjected the defendant to manifestly unjust procedures resulting in a miscarriage of justice. While each case must turn on its own facts, there are some extreme situations that would justify a finding of implied bias. Some examples might include a revelation that the juror is an actual employee of the prosecuting agency, that the juror is a close relative of one of the participants in the trial or the criminal transaction, or that the juror was a witness or somehow involved in the criminal transaction. Whether or not the state proceedings result in a finding of 'no bias,’ the Sixth Amendment right to an impartial jury should not allow a verdict to stand under such circumstances.” 455 U. S., at 222.
It added, in a footnote:
“In the exceptional situations that may require application of an ‘implied bias’ doctrine, the lower federal courts need not be deterred by 28 U. S. C. § 2254(d), which provides that in a federal habeas proceeding ‘a *153determination after a hearing on the merits of a factual issue . . . shall be presumed to be correct.’” Id., at 222, n.
Each of these examples no doubt refers to a situation in which the juror’s connection with a participant in the trial is undisclosed. Nevertheless, it is at least a close question whether this case, where the juror’s friend was killed by the defendant’s organization, should be included in the “extreme situations” list. In addition, as Justice Marshall points out, a conclusive presumption of bias in this case is further supported by the fact that the State had the burden of proving beyond a reasonable doubt that the defendant had suffered no injury from the admitted constitutional error.*
Inasmuch as the case primarily involves the application of settled law to a highly unusual set of facts, I continue to feel that plenary review of the case is unnecessary. Because the questions are close, and because a fair reading of the guidance this Court already has given suggests that the result the Ninth Circuit reached was correct, I am inclined to feel that the Court’s summary “rap on the knuckles” disposition of the federal courts’ efforts to perform their statutory and constitutional duties is not warranted.
Justice Stevens suggests that the constitutional error here was mis-characterized as a deprivation of the right to counsel and to be present at critical stages of the trial, rather than as a denial of the right to be tried by an impartial jury. Even assuming that he is correct, the fact is, as the Court notes, see ante, at 117-118, n. 2, that petitioners have conceded and the courts below have assumed that respondent’s constitutional rights to counsel and to be present at critical stages of the trial were violated. On the basis of that assumption, the dispute has centered on whether respondent was harmed by that error, in particular whether respondent was harmed by juror bias. In light of the framework in which the analysis has been cast, Justice Stevens’ view that the question whether juror Fagan was biased has not been raised appears to me to be unnecessarily narrow.