Nelson v. O'Neil/Concurrence Harlan

Mr. Justice HARLAN, concurring.

I join in the opinion and judgment of the Court. I would, however, go further and hold that, because respondent's conviction became final before this Court decided Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), he cannot avail himself of that new rule in subsequent federal habeas corpus proceedings. See Mackey v. United States, 401 U.S. 667, 675, 91 S.Ct. 1160, 1171, 28 L.Ed.2d 404, 410 (1971) (separate opinion of this writer).

It is difficult to fathom what public policy is served by opening the already overcrowed federal courts to claims such as these. Respondent's trial and appeals were, at the time they occurred, conducted in a manner perfectly consistent with then-prevailing constitutional norms. A reversal of the conviction now would either compel the State to place an already once-tried case again on its criminal docket, to be retried on substantially the same (but now more stale) evidence or else force the State to forego its interest in enforcing in this instance its criminal laws relating to kidnaping, robbery, and car theft because of the disappearance of evidence. Conversely, if federal habeas relief is denied on the merits, as it now is by this Court, the energies of the federal courts have been expended to no good purpose.

To justify such a serious interference with the State's powers to enforce its criminal law and the ability of federal courts to provide full, fair, and prompt hearings to those who have no other forum available should require the presence of a most substantial countervailing societal interest. But what interest is conceivably promoted by further adjudication of the contentions respondent urges upon us? Surely, indulging his claims does not serve the function of assuring that state courts properly apply governing constitutional standards. For this is precisely what the California courts did in this case. See, e.g., Delli Paoli v. United States, 352 U.S. 232, 77 S.Ct. 294, 1 L.Ed.2d 278 (1957). Nor can it plausibly be argued that we perceive in this case serious issues as to whether respondent was in fact likely innocent of the crime for which he was convicted or whether he was subjected to an intolerable abuse of the prosecutorial function that rendered his trial fundamentally unfair.

The only rationale I can imagine that might support entertaining Bruton claims in federal habeas proceedings brought by state prisoners whose convictions and become final prior to the decision in Bruton and who had a full and fair opportunity to litigate their claims at trial and on appeal, is the notion that Bruton is somehow an unimpeachably correct decision, so infallibly just that other earlier decisions inconsistent with it must be treated as though they had never been made. Even were this a tenable position, the fact is, as the Court notes, that respondent is actually seeking an extension of the Bruton holding. More importantly, for me such an 'infallibility' argument could rest on nothing more than the fanciful notion that perception of ultimate constitutional verity is always to be found in those who 'came after' to this Court.

Such a drastic disruption of judicial processes and alteration of our traditional federal-state balance should be supported by more persuasive considerations than those which led the Court in Roberts v. Russell, 392 U.S. 293, 88 S.Ct. 1921, 20 L.Ed.2d 1100 (1968), to hold the Bruton rule fully 'retroactive' in application. I venture to repeat what I stated earlier this Term in Mackey, supra:

'No one, not criminal defendants, not the judicial system,     not society as a whole is benefited by a judgment providing a      man shall tentatively go to jail today, but tomorrow and      every day thereafter his continued incarceration shall be      subject to fresh litigation on issues already resolved.' 401      U.S., at 667, 91 S.Ct., at 1179.

I think it unfortunate that substantial federal judicial energies have been expended, for virtually no purpose at all, on the adjudication of this habeas proceeding. Since the Court has decided to address the merits of respondent's contentions, however, I unreservedly join in its resolution of them.

Mr. Justice BRENNAN, with whom Mr. Justice DOUGLAS and Mr. Justice MARSHALL join, dissenting.