Kaufman v. United States/Dissent Black

Mr. Justice BLACK, dissenting.

Petitioner Kaufman was convicted of robbing a federally insured savings and loan association while armed with a pistol. Part of the evidence used against him was a revolver, some of the stolen traveler's checks, a money-order receipt, a traffic summons, and gasoline receipts. During the trial petitioner's counsel conceded that petitioner had committed the robbery but contended he was not responsible for the crime because he was mentally ill at the time. An appeal from his conviction was rejected by the Court of Appeals, 350 F.2d 408 (C.A.8th Cir. 1965), and we denied certiorari, 383 U.S. 951, 86 S.Ct. 1211, 16 L.Ed.2d 212 (1966). Three months later-after the decision had become what is generally considered 'final'-he filed in the Federal District Court he present motion under 28 U.S.C. § 2255, asking that his sentence be vacated on the ground, among others, that the trial court had committed error in not suppressing the evidence against him because the articles had been obtained by an unlawful search and seizure. Despite the fact that he has never, either in his trial or in this proceeding, asserted that he had not actually physically committed the robbery with a pistol, and despite the fact that this plainly reliable evidence clearly shows, along with the other evidence at trial, that he was not insane, the Court is reversing his case, holding that he can collaterally attack the judgment after it had become final. I dissent.

My dissent rests on my belief that not every conviction based in part on a denial of a constitutional right is subject to attack by habeas corpus or § 2255 proceedings fter a conviction has become final. This conclusion is supported by the language of § 2255 which clearly suggests that no every constitutional claim is intended to be a basis for collateral relief. And, as this Court has said in Fay v. Noia, with reference to habeas corpus,

'Discretion is implicit in the statutory command that the     judge *  *  * 'dispose of the matter as law and justice      require,' 28 U.S.C. § 2243 *  *  * .' 372 U.S. 391, 438, 83      S.Ct. 822, 848, 9 L.Ed.2d 837.

Of course one important factor that would relate to whether the conviction should be vulnerable to collateral attack is the possibility of the applicant's innocence. For illustration, few would think that justice requires release of a person whose allegations clearly show that he was guilty of the crime of which he had been convicted.

I agree with the Court's conclusion that the scope of collateral attack in substantially the same in federal habeas corpus cases which involve challenges to state convictions, as it is in § 2255 cases which involve challenges to federal convictions. The crucial question, however, is whether certain types of claims, such as a claim to keep out relevant and trustworthy evidence because the result of an unconstitutional search and seizure, should normally be open in these collateral proceedings. This question was fully and carefully considered by the Court of Appeals for the District of Columbia Circuit in Thornton v. United States, 125 U.S.App.D.C. 114, 368 F.2d 822 (1966), and I agree substantially with the opinion of Judge Leventhal for the majority of that court, which states:

'(G)enerally a claim by a federal prisoner that evidence     admitted at his trial was the fruit of an unconstitutional      search or seizure is not properly the ground of a collateral      attack on his conviction. As further noted below, this rule     is subject to an exception for special circumstances *  *  *.

'Many opinions declare that collateral attack, as by habeas     corpus, is available to correct the denial of a      constitutional right. This is the general rule but it is not     an absolute. * *  *

'The courts are called on to evolve and provide procedures     and remedies that are effective to vindicate constitutional      rights. However, where effective procedures are available in     the direct proceeding, there is no imperative to provide an additional, collateral review,      leaving no stone unturned, when exploration of all avenues of      justice at the behest of individual petitioners may impair      judicial administration of the federal courts, as by making      criminal litigation interminable, and diverting resources of      the federal judiciary.'

It was formerly the rule in this country that judgments were so impervious to collateral attack that a defendant could not collaterally attack his conviction even after the Government had admitted his innocence. That rule, obviously a harsh and what might seem to most people an indefensible one, has of course now been abandoned. It was finally put to rest in Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822 (1963). It is this element of probable or possible innocence that I think should be given weight in determining whether a judgment after conviction and appeal and affirmance should be open to collateral attack, for the great historic role of the writ of habeas corpus has been to insure the reliability of the guilt-determining process. In Fay v. Noia, Noia and his two codefendants have been c nvicted of felony murder in New York state court and each had been sentenced to life imprisonment. The sole evidence against each defendant was his confession. While his codefendants appealed, Noia did not, for fear that if the secured a reversal and was reconvicted at a second trial, he would be sentenced to death. The confessions of one codefendant were subsequently found by the Court of Appeals for the Second Circuit to have been coerced by practices which that court described as 'satanic.' United States ex rel. Caminito v. Murphy, 222 F.2d 698, 701 (1955). The conviction of Noia's other codefendant was also reversed, People v. Bonino, 1 N.Y.2d 752, 152 N.Y.S.2d 298, 135 N.E.2d 51, and since there was no evidence other than the coerced confessions that they were guilty, the State apparently declined to reprosecute them and they were set free. See United States ex rel. Noia v. Fay, 183 F.Supp. 222, 227, n. 6 (1960). Noia, however, languished in prison, even though his alleged confederates had been released. Both the New York courts and the Federal District Court declined to review his case on the ground that his 1942 failure to appeal made his conviction 'final.' He remained in jail despite the fact that he 'continuously asserted his innocence of the crime for which he (had) been convicted' in his petition for habeas corpus and elsewhere. See Transcript of Record in No. 84, October Term, 1962, p. 8.

It was under these circumstances, strongly appealing to the Court's sense of what justice required, that this Court held that Noia was entitled to challenge his conviction even though it had previously become 'final.' My Brother HARLAN, dissenting, concluded that no matter how appealing the circumstances, one wrongly convicted must be consigned to the slow, tedious, and uncertain road to whatever relief he might possibly get from the Chief Executive. On the contrary, I agreed with Fay v. Noia as one of the bright landmarks in the administration of criminal justice. But I did not think then and do not think now that it laid down an inflexible rule compelling the courts to release every prisoner who alleges in collateral proceedings some constitutional flaw, regardless of its nature, regardless of his guilt or innocence, and regardless of the circumstances of the case. The Court's opinion in Noia shows, from beginning to end, that the defendant's guilt or innocence is at least one of the vital considerations in determining whether collateral relief should be available to a convicted defendant. The Court repeatedly emphasized that the only evidence against Noia was a coerced confession and that he remained in jail while the State permitted his alleged confederates to go free. The Court made it clear that equitable considerations such as these should play a part in determining the availability of federal habeas corpus:

'Although we hold that the jurisdiction of the federal courts     on habeas corpus is not affected by procedural defaults      incurred by the applicant during the state court proceedings,      we recognize a limited discretion in the federal judge to      deny relief to an applicant under certain circumstances. Discretion is implicit in the statutory command that the     judge, after granting the writ and holding a hearing of      appropriate scope, 'dispose of the matter as law and justice      require,' 28 U.S.C. § 2243; and discretion was the flexible      concept employed by the federal courts in developing the      exhaustion rule. Furthermore, habeas corpus has traditionally     been regarded as governed by equitable principles.'

And in its closing paragraph, the Court stressed:

'Today as always few indeed is the number of state prisoners     who eventually win their freedom by means of federal habeas      corpus. Those few who are ultimately successful are persons     whom society has grievously wronged and for w om belated      liberation is little enough compensation.'

Surely, it cannot be said of Kaufman, an admitted armed robber, that he is a person whom 'society has grievously wronged and for whom belated liberation is little enough compensation.' Although, as the Court of Appeals indicated in the Thornton case, habeas corpus has been thought of broadly as a means of securing redress for the violation of any 'constitutional right,' it was true until Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), that almost every 'constitutional right' referred to in this sense played a central role in assuring that the trial would be a reliable means of testing guilt. It is true that the prohibition against coerced confessions has been vigorously enforced even in the absence of proof that the confession itself was unreliable, e.g., Rogers v. Richmond, 365 U.S. 534, 81 S.Ct. 735, 5 L.Ed.2d 760 (1961), but even this prohibition rests to a substantial extent on recognition that all such confessions 'may be and have been, to an unascertained extent, found to be untrustworthy,' Id., at 541, 81 S.Ct. at 740.

A claim of illegal search and seizure under the Fourth Amendment is crucially different from many other constitutional rights; ordinarily the evidence seized can in no way have been rendered untrustworthy by the means of its seizure and indeed often this evidence alone establishes beyond virtually any shadow of a doubt that the defendant is guilty. A good example of such a case is one in which I filed a dissent today. Harris v. Nelson, 394 U.S. 286, 89 S.Ct. 1082, 22 L.Ed.2d 281. The prisoner in Harris was convicted on a charge that he had been in possession of marihuana, possession alone being a crime under state law. He later collaterally attacked that conviction, alleging that the marihuana had been unlawfully seized from his home, where he had been in illegal possession of it. He did not and evidently could not allege a single fact that would indicate the slightest possibility that he actually was innocent of the crime charged. Under these circumstances it implies no disrespect for the importance of the Fourth Amendment to recognize the simple proposition that treatment of search-and-seizure claims should correspond to the purpose of the Fourth Amendment exclusionary rule. As the Court of Appeals said in Thornton:

'Our rejection of the availability of collateral review for     claims of unreasonable search and seizure (in the absence of      exceptional circumstances) is not attributable to a low      regard for the significance of the Fourth Amendment in our      times and civilization. On the contrary, the magnitude of the     Fourth Amendment in our constitutional constellation has      prompted unusual remedies by Congress, as well as the courts. * *  *

' * *  * The corollary, however, is a contraction of the need      for enlarging collateral review in order to assure effective      vindication of the constitutional interests involved.'

The purpose of the exclusionary rule, unlike most provisions of the Bill of Rights, does not include, even to the slightest degree, the goal of insuring that the guilt-determining process be reliable. Rather, as this Court has said time and again, the rule has one primary and overriding purpose, the deterrence of unconstitutional searches and seizures by the police. As the Court said in Linkletter v. Walker, 381 U.S. 618, 636-637, 85 S.Ct. 1731, 1741, 14 L.Ed.2d 601 (1965):

'Mapp had as its prime purpose the enforcement of the Fourth     Amendment through the inclusion of the exclusionary rule      within its rights. This, it was found, was the only effective     deterrent to lawless police action. Indeed, all of the cases     since Wolf (v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed.      1782 (1949)) requiring the exclusion of illegal evidence have      been based on the necessity for an effective deterrent to      illegal police action.'

How this purpose can be served by the broad and unqua ified rule adopted by the Court today is something of a mystery. Of course, the shortcomings inherent in any human system make it impossible to eliminate entirely all the incentives to conduct an illegal search. It would seem rather fanciful, however, to suggest that these inevitable incentives would be decreased to any significant extent by the fact that if a conviction is obtained after adequate opportunities have been provided to litigate constitutional claims, and if this conviction is upheld by all the reviewing courts, the validity of the search and seizure may later be questioned in a collateral proceeding. Understandably, the Court does not make any such suggestion and indeed makes no effort to justify its result in terms of the long-recognized deterrent purpose of the exclusionary rule. The Court instead simply provides us with a string of citations that supposedly settle the question, at least as to state convictions, ante, at 225, but the Court neglects to mention that not one of the cases it cites contains a single intimation that the issue before us now was even considered.

The only other justification for the Court's result that can be gleaned from its opinion is the statement that the reasoning of the Court of Appeals in Thornton 'exalts the value of finality in criminal judgments at the expense of the interest of each prisoner in the vindication of his constitutional rights.' Ante, at 228. This astonishing statement is directly contrary to the principles this Court has consistently applied on this subject, as for example in Elkins v. United States, 364 U.S. 206, 217, 80 S.Ct. 1437, 1444, 4 L.Ed.2d 1669 (1960), where we said: 'The (exclusionary) rule is calculated to prevent, not to repair. Its purpose is to deter-to compel respect for the constitutional guaranty in the only effectively available way-by removing the incentive to disregard it.' This same recognition that no personal right of the prisoner can be vindicated in these Fourth Amendment cases was stressed in this Court's opinion in Linkletter, supra: 'We cannot say that this (deterrent) purpose would be advanced by making the rule retrospective. The misconduct of the police prior to Mapp has already occurred and will not be corrected by releasing the prisoners involved. * *  * Finally, the reptured privacy of the victims' homes and effects cannot be restored. Reparation comes too late.' 381 U.S., at 637, 85 S.Ct. at 174.

The Court's consistent adherence to this approach has continued through all of the various 'retroactivity' cases, including today's decision in Desist v. United States, 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248, in which the Court emphasizes, quoting from Linkletter, that "(t)he misconduct of the police * *  * has already occurred and will not be corrected by releasing the prisoners involved," and that 'the exclusionary rule is but a 'procedural weapon that has no bearing on guilt." It would be hard to find a more apt summary of this Court's holdings in these 'retroactivity' cases than the statement that they 'exal(t) the value of finality in criminal judgments at the expense of the interest of each prisoner in the vindication of his constitutional rights.' But since this is the course the Court has chosen to steer, I think it would not be amiss to suggest that the Court at least decide this case on the same principles and seek to achieve a modest semblance of consistency. Instead the Court adopts a rule that offers thought it necessary to point out that Fourth Amendment and insure  that prisoners who are undoubtedly guilty will be set free.

It is seemingly becoming more and more difficult to gain acceptance for the proposition that punishment of the guilty is desirable, other things being equal. One commentator, who attempted in vain to dissuade this Court from today's holding, though it necessary to point out that there is 'a strong public interest in convicting the guilty.' Indeed the day may soon come when the ever-cautions law reviews will actually be forced to offer the timid and uncertain contention, recently suggested satirically, that 'crime may be thought socially undesirable, and its control a 'valid governmental objective' to which the criminal law is 'rationally related."

I cannot agree to a rule, however technical it may seem, that leads to these results. I would not let any criminal conviction become invulnerable to collateral attack where there is left remaining the probability or possibility that constitutional commands related to the integrity of the fact-finding process have been violated. In such situations society has failed to perform its obligation to prove beyond a reasonable doubt that the defendant committed the crime. But it is quite a different thing to permit collateral attack on a conviction after a trial according to due process when the defendant clearly is, by the proof and by his own admission, guilty of the crime charged. There may, of course, as the Court of Appeals held in the Thornton case, be some special circumstances in which allowance of a Fourth Amendment claim in a collateral proceeding would be justified in terms of the relevant and applicable constitutional principles. Some of the situations possibly falling in this category have been enumerated and examined by others, and there are circumstances alleged here that might lead to such a disposition of this case. But the Court does not rest its judgment on this narrow ground, and I therefore do not attempt to pass on it. I do contend, however, that the court below was right in refusing to follow the broad rule that this Court is announcing today. In collateral attacks whether by habeas corpus or by § 2255 proceedings, I would always require that the convicted defendant raise the kind of constitutional claim that casts some shadow of a doubt on his guilt. This defendant is permitted to attack his conviction collaterally although he conceded at the trial and does not now deny that he had robbed the savings and loan association and although the evidence makes absolutely clear that he knew what he was doing. Thus, his guilt being certain, surely he does not have a constitutional right to get a new trial. I cannot possibly agree with the Court.

Mr. Justice HARLAN, whom Mr. Justice STEWART joins, dissenting.

I cancur in must of my Brother BLACK'S opinion, and agree with his conclusion that 28 U.S.C. § 2255 should be available to contest the admission of evidence allegedly seized in violation of the Fourth Amendment only under limited and special circumstances of the sort suggested in Thornton v. United States, 125 U.S.App.D.C. 114, 368 F.2d 822 (1966). I must, however, disassociate myself from any implications, see, e.g., ante, at 232-233, 234-236, that the availability of this collateral remedy turns on a petitioner's assertion that he was in fact innocent, or on the substantially of such an allegation.

I think it appropriate to add that the main roots of the situation against which my Brother BLACK so rightly inveighs are to be found in the Court's decisions in Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), and Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), which have opened wide the gates to collateral re-examination of both state and federal criminal convictions. Be that as it may, the present case offers an opportunity to narrow the entrance in a fair and practicable manner. In rejecting the opportunity, the Court once again this Term imposes a burden on the judiciary and on society at large, which results in no legitimate benefit to the petitioner and does nothing to serve the interests of justice.

I therefore dissent from the opinion of the Court.