# Henry v. Mississippi (379 U.S. 443)/Dissent Harlan

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* Dissenting Opinions Black Harlan
United States Supreme Court
379 U.S. 443
Henry v. Mississippi
Argued: Oct. 13, 1964. --- Decided: Jan 18, 1965
Mr. Justice HARLAN, with whom Mr. Justice CLARK and Mr. Justice STEWART join, dissenting.
Flying banners of federallism, the Court's opinion actually raises storm signals of a most disquieting nature. While purporting to recognize the traditional principle that an adequate procedural, as well as substantive, state ground of decision bars direct review here of any federal claim asserted in the state litigation, the Court, unless I wholly misconceive what is lurking in today's opinion, portends a severe dilution, if not complete abolition, of the concept of 'adequacy' as pertaining to state procedural grounds.
In making these preliminary observations I do not believe I am seeing ghosts. For I cannot account for the remand of this case in the face of what is a demonstrably adequate state procedural ground of decision by the Mississippi Supreme Court except as an early step toward extending in one way or another the doctrine of Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837, to direct review. In that case, decided only two Terms ago, the Court turned its back on history (see dissenting opinion of this writer, at 448 et seq.), and did away with the adequate state ground doctrine in federal habeas corpus proceedings.
Believing that any step toward extending Noia to direct review should be flushed out and challenged at its earliest appearance in an opinion of this Court, I respectfully dissent.
The Mississippi Supreme Court did not base its ultimate decision upon petitioner's federal claim that his wife's consent could not validate an otherwise improper police search of the family car, but on the procedural ground that petitioner (who was represented by three experienced lawyers) had not objected at the time the fruits of this search were received in evidence. This Court now strongly implies, but does not decide (in view of its remand on the 'waiver' issue) that enforcement of the State's 'contemporaneous-objection' rule was inadequate as a state ground of decision because the petitioner's motion for a directed verdict of acquittal afforded the trial judge a satisfactory opportunity to take 'appropriate corrective action' with reference to the allegedly inadmissible evidence. Thus, it is suggested, this may be a situation where 'giving effect to the contemporaneous-objection rule for its own sake 'would be to force resort to an arid ritual of meaningless form." (Ante, p. 449.)
From the standpoint of the realities of the courtroom, I can only regard the Court's analysis as little short of fanciful. The petitioner's motion for a verdict could have provoked one of three courses of action by the trial judge, none of which can reasonably be considered as depriving the State's contemporaneous-objection rule of its capacity to serve as an adequate state ground.
1. The trial judge might have granted the directed verdict. But had this action been appropriate, the Supreme Court of Mississippi, in its first opinion, would have ordered the prosecution dismissed. Since it did not, and the matter is entirely one of state law, further speculation by this Court should be foreclosed.
2. The trial judge might have directed a mistrial. The State's interest in preventing mistrials through the contemporaneous-objection requirement is obvious.
3. The remaining course of action is the example given by the Court; the trial judge could have denied the motion for a directed verdict, but, sua sponte, called for elaboration of the argument, determined that the search of the automobile was unconstitutional, and given cautionary instructions to the jury to disregard the inadmissible evidence when the case was submitted to it.
The practical difficulties with this approach are manifestly sufficient to show a substantial state interest in their avoidance, and thus to show an 'adequate' basis for the State's adherence to the contemporaneous-objection rule. To make my point I must quote the motion for directed verdict in full.
'Atty Carter: We're going to make a motion, your Honor, for a directed verdict in this case. We are going to base our motion on several grounds. First, we think that this whole process by which this defendant was brought or attempted to be brought into the jurisdiction of this Court is illegal and void. There is nothing in the record in this case to show that the warrant that was issued against this defendant was based upon-it must be based in this State and any other State on an affidavit, on a proper affidavit or a proper complaint by any party. True, there is some testimony that some affidavit was made, and the complaining witness said so, but in the record in this case which is before the Court, no such affidavit is present and there is a verification from the Justice of the Peace that no such affidavit is present in this case; therefore, we contend that the warrant under which this defendant was subjected to arrest was illegal and without force and effect. Secondly, we contend that the warrant having been issued and the testimony of this Mr. Collins on the stand to the effect that after he had placed this man under arrest, he then proceeded to go and search his car, and clearly, this is a violation of his rights under the Fourth Amendment, and it is unlawful search and seizure so the evidence that they have secured against this defendant is illegal and unlawful. Finally, we contend that on the basis of these facts that the affidavit under which the defendant was tried before the Justice of the Peace Court, as we contended yesterday, based upon the statement that was sworn to by the County Attorney, not on information and belief, but directly that this is void and defective and could give the Justice of the Peace no jurisdiction in this case. We contend under these circumstances that the state-that this is an illegal process; that this man's rights have been violated under the Fourteenth Amendment, and finally, we contend that the State has failed to prove beyond a reasonable doubt to any extent to implicate this man in this case. Now, on these basis (sic) we contend that this whole process is illegal and void, and that it has permeated and contended (sic) the whole process insofar as the jurisdiction of this Court is concerned or jurisdiction over this individual is concerned; therefore, he should be released, and we move for a directed verdict.
'Court: Motion overruled. Bring the jury back.' The motion was renewed at the completion of the defense in the following language:
'Atty Carter: Your Honor, at this time at the close of the case we want to make a motion for a directed verdict. We base it on the grounds and the reasons which we set forth in our motion for a directed verdict at the close of the State's case. We make it now at the close of the entire case on those grounds and on the grounds that the evidence has not shown beyond any reasonable doubt under the law that the defendant is guilty of the charge. We therefore make a motion for a directed verdict at this time.
'Court: Motion is overruled.'
The single sentence in the first motion (supra, p. 460) is the only direct reference to the search and seizure question from beginning to end of the trial.
As every trial lawyer of any experience knows, motions for directed verdicts are generally made as a matter of course at the close of the prosecution's case, and are generally denied without close consideration unless the case is clearly borderline. It is simply unrealistic in this context to have expected the trial judge to pick out the single vague sentence from the directed verdict motion and to have acted upon it with the refined imagination the Court would require of him. Henry's three lawyers apparently regarded the search and seizure claim as make-weight. They had not mentioned it earlier in the trial and gave no explanation for their laxity in raising it. And when they did mention it, they did so in a cursory and conclusional sentence placed in a secondary position in a directed verdict motion. The theory underlying the search and seizure argument-that a wife's freely given permission to search the family car is invalid-is subtle to say the very least, and as the matter was presented to the trial judge it would have been extraordinary had he caught it, or even realized that there was a serious problem to catch. But this is not all the Court would require of him. He must, in addition, realize that despite the inappropriateness of granting the directed verdict requested of him, he could partially serve the cause of the defense by taking it upon himself to frame and give cautionary instructions to the jury to disregard the evidence obtained as fruits of the search.
Contrast with this the situation presented by a contemporaneous objection. The objection must necessarily be directed to the single question of admissibility; the judge must inevitably focus on it; there would be no doubt as to the appropriate form of relief, and the effect of the trial judge's decision would be immediate rather than remote. Usually the proper timing of an objection will force an elaboration of it. Had objection been made in this case during the officer's testimony about the search, it would have called forth of its own force the specific answer that the wife had given her permission and, in turn, the assertion that the permission was ineffective. The issue, in short, would have been advertently faced by the trial judge and the likelihood of achieving a correct result maximized.
Thus the state interest which so powerfully supports the contemporaneous-objection rule is that of maximizing correct decisions and concomitantly minimizing errors requiring mistrials and retrials. The alternative for the State is to reverse a trial judge who, from a long motion, fails to pick out and act with remarkable imagination upon a single vague sentence relating to admissibility of evidence long since admitted. A trial judge is a decision-maker, not an advocate. To force him out of his proper role by requiring him to coax out the arguments and imaginatively reframe the requested remedies for the counsel before him is to place upon him more responsibility than a trialjudge can be expected to discharge.
There was no 'appropriate corrective action' that could have realistically satisfied the purposes of the contemporaneous-objection rule. Without question the State had an interest in maintaining the integrity of its procedure, and thus without doubt reliance on the rule in question is 'adequate' to bar direct review of petitioner's federal claim by this Court.
The real reason for remanding this case emerges only in the closing pages of the Court's opinion. It is pointed out that even were the contemporaneous-objection rule considered to be an adequate state ground, this would not, under Fay v. Noia, preclude consideration of Henry's federal claim in federal habeas corpus unless it were made to appear that Henry had deliberately waived his federal claim in the state proceedings. It is then said that in the interest of 'efficient administration of criminal justice' and 'harmonious' relations between the federal and state judiciaries the Mississippi courts should be given the opportunity to pass, in the first instance, on the waiver issue; the prospect is entertained that such action on the part of this Court will encourage the States to grasp the 'opportunity' afforded by Fay v. Noia and Townsend v. Sain by providing 'state procedures, direct or collateral, for a full airing of federal claims.' It is 'suggested' that were this to be done 'irritation' and 'friction' respecting the exercise of federal habeas corpus power vis-a -vis state convictions 'might be ameliorated.'
What does all this signify? The States are being invited to voluntarily obliterate all state procedures, however conducive they may be to the orderly conduct of litigation, which might thwart state-court consideration of federal claims. But what if the States do not accept the invitation? Despite the Court's soft-spoken assertion that 'settled principles' will be applied in the future, I do not think the intimation will be missed by any discerning reader of the Court's opinion that at the least a substantial dilution of the adequate state-ground doctrine may be expected. A contrary prediction is belied by the implication of the opinion that under 'settled principles,' the contemporaneous-objection rule relied upon in this case could be declared inadequate.
To me this would not be a move toward 'harmonious' federalism; any further disrespect for state procedures, no longer cognizable at all in federal habeas corpus, would be the very antithesis of it. While some may say that, given Fay v. Noia, what the Court is attempting to do is justifiable as a means of promoting 'efficiency' in the administration of criminal justice, it is the sort of efficiency which, though perhaps appropriate in some watered-down form of federalism, is not congenial to the kind of federalism I had supposed was ours. I venture to say that to all who believe the federal system as we have known it to be a priceless aspect of our Constitutionalism, the spectre implicit in today's decision will be no less disturbing than what the Court has already done in Fay v. Noia.
Believing that the judgment below rests on an adequate independent state ground, I would dismiss the writ issued in this case as improvidently granted.

## Notes

* ↑ The court, as a matter of state law, could have found (a) that there was sufficient corroborative evidence, (b) that none was necessary, or (c) that retrial was necessary to prevent defendants in criminal cases from hanging back until the completion of the State's case and then for the first time moving to strike a piece of evidence crucial to getting the case to the jury.
* ↑ Furthermore, even if counsel had fully elaborated the argument and had made it in the context of a motion to strike rather than a motion for directed verdict, the trial judge could properly have exercised his discretion (as the Mississippi Supreme Court did) and denied any relief. This power is recognized in trial judges in the federal system in order to prevent the 'ambushing' of a trial through the withholding of an objection that should have been made when questionable evidence was first introduced. Federalism is turned upside down if it is denied to judges in the state systems. See Fed.Rules Crim.Proc. 41(e) and 26; United States v. Milanovich, 303 F.2d 626, cert. denied, 371 U.S. 876, 83 S.Ct. 145, 9 L.Ed.2d 115; Hollingsworth v. United States, 321 F.2d 342, 350; Isaacs v. United States, 301 F.2d 706, 734-735, cert. denied, 371 U.S. 818, 82 S.Ct. 32, 9 L.Ed.2d 58; United States v. Murray, 297 F.2d 812, 818, cert. denied, 369 U.S. 828, 82 S.Ct. 845, 7 L.Ed.2d 794; Metcalf v. United States, 195 F.2d 213, 216-217.
* ↑ As the first opinion by the Mississippi Supreme Court shows, there is discretion in certain circumstances to lower the procedural bar. It does not follow that this Court is completely free to exercise that discretion. Even in cases from lower federal courts we do so only if there has been an abuse. If, in order to insulate its decisions from reversal by this Court, a state court must strip itself of the discretionary power to differentiate between different sets of circumstances, the rule operates in a most perverse way.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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