We granted a writ of certiorari to address whether the Court of Appeals correctly analyzed the ineffective assistance of counsel claim made by appellant Ronald Bass based on defense counsel’s failure to object when the trial court allowed the county sheriff, who was the lead investigative officer and witness for the State, to serve as bailiff during Bass’s trial. Bass v. State , 288 StateplaceGa. App. 690 2 a 655 SE2d 303 2007. We conclude that defense counsel performed deficiently by failing to object and that Bass’s right to a fair trial was prejudiced when the sheriff, after providing key testimony on behalf of the State, assumed the duties of bailiff. We accordingly reverse. A review of the record establishes that appellant was charged in a 24-count indictment with arson, robbery, simple battery, criminal damage to property and criminal trespass committed against persons who had participated in a nuisance lawsuit regarding appellant’s dogs. Gary Wilson, who had been the elected sheriff of PlaceNameplacePlaceNameRandolphPlaceTypeCountysince 1985, was one of many witnesses called by the State in appellant’s first trial. Wilson testified, inter alia, about how he investigated the damage to one victim’s truck; uncovered on his own the damage to another victim’s car; summoned the GBI and a tracking dog; followed the dog as she tracked a scent to appellant’s house; and repeated to the jury how a witness he questioned had declined to implicate appellant out of fear that appellant would burn down the witness’s house. Although the jury convicted appellant of simple battery, the jury hung on the remaining 23 charges. One year later, a second trial was convened with the same trial judge, district attorney, assistant district attorney and defense attorney. CityplaceWilsonwas again included on the witness list. Nevertheless, he was administered the bailiff oath at the start of the proceedings, along with a deputy sheriff who initially assumed the active duties of bailiff. See OCGA § 15-12-140.1 While sworn in as a bailiff, Wilson took the oath as a witness, joined the other witnesses in sequestration, was called to the stand as a prosecution witness on two different occasions and gave essentially the same testimony as at the first trial. The record then reveals that, at some point in the proceedings, Wilson advised the trial court that the acting bailiff was “going to be running out of hours” and would be “running to comp time” if kept on as bailiff. At the close of the State’s evidence, the trial judge, with defense counsel’s express agreement, authorized Wilson to assume the active duties of bailiff.2 Wilson so acted for the final two days of the four-day trial, from the beginning of appellant’s presentation of evidence until the jury finished deliberating and rendered a verdict, in which it convicted appellant of the remaining 23 counts.
Bass’s trial counsel died before the hearing on his motion for new trial, in which conflict-free counsel asserted a claim of ineffective assistance of counsel based on placeCityWilsons service as bailiff. The trial court denied appellant’s motion without explanation and, on appeal, after assessing the claim under the two-prong test in Strickland v. Washington , 466 U.S. 668 104 SC 2052, 80 LE2d 674 1984 defendant must show both that counsel performed deficiently and that counsel’s deficient performance prejudiced the defense in order to prove ineffective assistance, a majority of the Court of Appeals affirmed. Bass v. State , supra, 288 StateplaceGa. App. at 697 2 a. As to the deficient performance prong based on trial counsel’s failure to object, the court held that “the circumstances are always local, and such matters are usually best left to the experienced trial judge presiding and to the judgment and instincts of the adversarial trial counsel.” Footnote omitted. StateplaceId.at 696 2 a. As to the prejudice prong of the Strickland test, the Court of Appeals, citing the “cold record and distance from the scene,” stated it was unable to “discern whether Bass in fact was prejudiced or not by the allowing of the elected sheriff to serve as bailiff.” Footnote omitted. StateplaceId.After finding significant differences between Wilson’s contact with the jury and those contacts in issue in two United States Supreme Court cases,3 and acknowledging that Wilson’s contacts with the jury “could have rendered his service as bailiff improper if objection had been made,” id. at 697 2 a, the Court of Appeals concluded that, because trial counsel expressly agreed with the appointment of CityplaceWilsonas bailiff, it could not “say that, as a matter of law, such consent automatically equals to ineffective assistance of counsel.” StateplaceId.The Court of Appeals erred by so holding.Our adversary system of criminal justice demands that the respective roles of prosecution and defense and the neutral role of the court be kept separate and distinct in a criminal trial. When a key witness against a defendant doubles as the officer of the court specifically charged with the care and protection of the jurors, associating with them on both a personal and an official basis while simultaneously testifying for the prosecution, the adversary system of justice is perverted. Cit.Radford v. State , 263 StateplaceGa.47, 49-50 6 426 SE2d 868 1993. Thus, in Radford , consistent with Turner v. Louisiana , 379 U.S. 466 85 SC 546, 13 LE2d 424 1965, we recognized that a criminal defendant’s right to an impartial jury cannot be reconciled with a practice in which the trial court permits a substantial witness for the State to have a custodial relationship with the members of the jury during trial.
