dissenting.
The trial of this case commenced on September 25,1972 and lasted through September 27. At 9:00 a. m. on the second day of the trial the jury heard defense testimony and then prosecution rebuttal evidence. Following closing arguments the trial judge gave his instructions. The jury retired to deliberate at 4:35 p. m. At 9:27 that night it asked to confer with the judge. He refused to inquire what the jury desired; instead he instructed the bailiff to read the following note to its members: “The judge cannot communicate with the jurors; you must continue with your deliberations.” At 10:25 p. m. the jurors announced that they could not reach a verdict and would “like to be bedded down for the night.” There was no response from the judge. The jury then continued its deliberations until it reached a verdict at 3:22 a. m. on September 28 after having continuously deliberated for eleven hours.
In my judgment the trial judge improperly coerced the jury and forced a verdict. As a consequence the defendants (petitioners) were denied a fair trial and their constitutional right to due process.
When the jurors attempted to communicate with the judge they were told they could not do so. When they asked for sleeping facilities they received no response. After these rebuffs the jurors had no choice but to continue their deliberations. Their only hope for release from virtual imprisonment in the jury room was to reach a verdict. The fact that they deliberated eleven hours before agreeing to a verdict is a strong indication that one or more had serious doubts about the defendants’ guilt.
Assuming that the jurors had awakened at approximately 7:00 a. m. on the morning of the twenty-seventh, they were kept awake until 3:30 a. m. on the twenty-eighth, a total of twenty and one-half hours. This protracted stretch of duty constituted coercion under compulsion on the part of the judge. As the Supreme Court of Iowa said in State v. Albers, 174 N.W.2d 649, 656 (1970), “under such circumstances the premium is on stamina and physical strength rather than judgment.” There is no significant difference between forcing a verdict as happened in this case and expressly telling the jury, “You must reach a decision,” which the Supreme Court condemned as coercive in Jenkins v. United States, 380 U.S. 445, 85 S.Ct. 1059, 13 L.Ed.2d 957 (1965).
The majority reasons: “In the absence of any expression from the jury that fatigue was interfering with the progress of the deliberations, the late hour at which they returned the verdict does not create any inference that one or more of them might have surrendered conscientious views to arrive at the verdict.” I submit that the absence of a third communication specifically mentioning fatigue is no excuse for refusing to recognize the coercion visited upon the jury when it was twice rebuffed in its attempt to communicate with the trial judge. Moreover, one of the notes did specifically ask for sleeping facilities. Upon what basis could the jury reasonably con-*698elude that subsequent attempts to communicate with the judge would be successful? The majority’s treatment of the facts is much too bland; it does not grapple with their reality. Instead of faulting the jurors for not attempting to complain further, this court should condemn the state trial judge for his insensitive and arbitrary attitude.
We mouth the ideals of our American jury system in affording fair trials and procedural due process. Yet in concrete cases, such as this, those ideals are allowed to be compromised and tarnished. I deplore the resulting disillusionment, the irony, the broken promise.
I would reverse and grant the writ.