Harris v. Washington/Dissent Blackmun

Mr. Justice BLACKMUN, dissenting.

My own views on the issue presented by this case were expressed when I wrote for the Court of Appeals in Ashe v. Swenson, 399 F.2d 40 (C.A.8 1968), reversed and remanded, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 523 (1970). I am not persuaded as to the rightness of the Court's imposing in that case-as a Fifth Amendment-Fourteenth Amendment imperative-the concept of collateral estoppel upon a state criminal proceeding. I could have understood a flat overruling of Hoag v. New Jersey, 356 U.S. 464, 78 S.Ct. 829, 2 L.Ed.2d 913 (1958), and of Ciucci v. Illinois, 356 U.S. 571, 78 S.Ct. 839, 2 L.Ed.2d 983 (1958), despite the interim appearance of Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). But overruling those two cases was a step the Court, for reasons that escape me, refused to take or felt it could not take.

Neither am I persuaded by the 'single frolic' or 'one criminal episode' or 'same transaction' theory espoused by the Justices in concurrence in Ashe v. Swenson, 397 U.S., at 448-460, 90 S.Ct., at 1196-1202, 25 L.Ed.2d 523. That approach would place multiple but separate-shot murders under the protective umbrella of double jeopardy. I cannot subscribe to reasoning that would necessarily produce a result of that kind.

I therefore dissent.