concurring in judgment only in part and dissenting in part.
Because I believe that it is presumptively prejudicial when a key State’s witness serves as a bailiff charged with the jury’s care, I am *707compelled to dissent as to Division 2 of the majority’s opinion.71 I concur in the judgment only with respect to the remaining divisions.
Decided November 30, 2007 Brian Steel, for appellant. Charles M. Ferguson, District Attorney, for appellee.There is a reason why court decisions uniformly condemn permitting law enforcement officers who are key witnesses for the State to serve as bailiffs, in charge of jurors.72 It is because, to hold otherwise, is fundamentally unfair to criminal defendants and undermines our system of justice. The Constitutions of both Georgia and the United States guarantee a criminal defendant the right to trial by an impartial jury.73 As former trial judges, we know that a bailiff can develop a unique rapport with the jury.74 The bailiff is the person who ensures the jurors’ presence and comfort, ushers them in and out of the jury room, and serves as the conduit between jurors and the judge. Given the bailiffs position of power, jurors may conceive a fondness, a respect, or possibly even a fear of the bailiff. What jurors do not have is an impartiality toward the bailiff. And lack of impartiality may translate into enhanced credibility of the bailiff-witness.
Moreover, I cannot conceive of a legitimate tactical reason for trial counsel’s failure to object to such a situation. Arguably, trial counsel was motivated by a desire to avoid antagonizing the judge.75 Nevertheless, such motivation should never override his overarching obligation to ensure that his client obtains a fair trial by an impartial jury untainted by inappropriate exposure to any trial witness.
I am authorized to state that Presiding Judge Blackburn joins in this opinion.
As with any presumption, it is rebuttable. See Bishop v. State, 268 Ga. 286, 293 (10) (486 SE2d 887) (1997) (although deputy’s contact with jurors was improper, reversal was not required given lack of contact with jurors). Apparently, Bass’s appellate counsel chose not to argue at oral argument that the sheriffs dual role as both witness and bailiff was presumptively prejudicial. It appears to me, however, that the majority presumes lack of prejudice. Given the important constitutional right at stake, I think the presumption should be otherwise.
See Tarner v. Louisiana, 379 U. S. 466 (85 SC 546,13 LE2d 424) (1965); Bishop, supra; Radford v. State, 263 Ga. 47, 48 (1) (426 SE2d 868) (1993).
See Ga. Const. of 1983, Art. I, Sec. I, Par. XI (a); U. S. Const., Amend. 6.
I note that five of the seven judges on this panel are former trial judges.
Trial counsel died before the hearing on Bass’s motion for new trial could be heard. Thus, we have no testimony regarding his alleged strategy - or lack thereof - in failing to object to the sheriffs dual role as witness and bailiff.