# Loper v. Beto/Dissent Burger

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* Opinion of the Court
* Concurring Opinion White
* Dissenting Opinions Burger Blackmun Rehnquist
MR. CHIEF JUSTICE BURGER, with whom MR. JUSTICE POWELL joins, dissenting.
In 1942 this Court, in deciding Betts v. Brady, 316 U.S. 455, held that the Due Process Clause of the Fourteenth Amendment did not call for the setting aside of a robbery conviction that had been entered against an indigent defendant whose request for appointed [p486] counsel had been denied by the state trial court. Betts was overruled in 1963 by Gideon v. Wainwright, 372 U.S. 335. Loper's trial for rape was held five years after Betts and 16 years before Gideon. Yet the Court today holds that an error of constitutional magnitude occurred when the judge presiding at Loper's trial failed to make, on his motion, an evidentiary ruling that would have been inconsistent both with state law and with the United States Constitution as then explicitly interpreted by this Court. I dissent.

## (1)

Three witnesses were called at Loper's 1947 trial. His eight-year-old stepdaughter testified that Loper raped her on August 9, 1947. A physician gave testimony corroborating that the child had been raped. Loper himself denied having committed the act, but admitted that there was a period of time during the day in question when he was at home alone with his stepdaughter and his four-month-old baby boy; he further admitted on cross-examination that his stepdaughter was, as far as he knew, a truthful child.
Under further cross-examination, Loper admitted to four prior burglary convictions entered against him in 1931, 1932, 1935, and 1940, respectively. At the 1969 habeas corpus proceeding here under review, Loper introduced court records relating to three of these burglary convictions and gave testimony relating to two of those three. The evidence presented to the District Court with respect to the four convictions may be summarized as follows:
    (a) The court records for the 1931 conviction indicated only that Loper pleaded guilty upon being arraigned and that a six-month sentence was imposed nine days later. Loper testified before the District Court that he was not represented by an [p487] attorney in connection with these 1931 proceedings; that he could not then have afforded private counsel; and that he never informed the trial court that he did not want to be represented by counsel.
    (b) Loper introduced no court record and gave no testimony at all with respect to his 1932 conviction.
    (c) Loper gave no testimony with respect to his 1935 conviction, but the court record of that conviction appears on its face to suggest that he was represented by counsel: "Came the Attorney General and the defendant in person, and this case was tried... before the Court and the... jury... [whose members,] having heard the proof, arguments of Counsel and the charge of the Court[,] on oath say defendant is guilty..." (Emphasis added.)
    (d) The court record of Loper's 1940 conviction recited that Loper appeared "in his own proper person." Loper testified before the District Court that he did not have counsel at his 1940 trial; that he did not "believe" he could then have afforded private counsel; and that he never informed the state court that he did not want to be represented by counsel.
Even if we, unlike the District Court, treat as absolutely true everything to which Loper testified at the habeas corpus hearing, there is no basis on which we can conclude that he was not represented by counsel in the proceedings leading to his 1932 and 1935 convictions. With respect to the 1940 conviction, it surely cannot be said that Loper, through his testimony that he does [p488] not now "believe" that he then could have afforded private counsel, met his "burden of proving his inability at that time to hire an attorney." Kitchens v. Smith, 401 U.S. 847, 848 (1971). There is no basis, then, for a retroactive application of Gideon v. Wainwright to bring into question the validity of his 1940 burglary conviction.
It this appears that of the four convictions introduced to impeach Loper's credibility at his 1947 rape trial, only the burglary conviction of 1931—a conviction entered upon Loper's plea of guilty—can reasonably be found on this record to have been even arguably invalid under Gideon.

## (2)

When a defendant in a criminal trial elects to testify on his own behalf, he asks the jury, in effect, to believe his testimony rather than any conflicting testimony introduced by the prosecution. He presents himself to the jury as a person worthy of belief. In so doing, he brings into issue his credibility as a witness, and he thereby exposes himself to possible cross-examination designed to impeach that credibility. Such cross-examination is limited by state rules of evidence, of course, to matters which are relevant to credibility and which are not, at the same time, so prejudicial to the defendant that they must be excluded despite their relevance. Each State's rules governing such cross-examination reflect a balance that has been struck by that State in weighing, with respect to a given category of evidence, its probative value for impeachment purposes against the prejudicial effect it might have upon the jury's determination of the defendant's guilt or innocence of the crime charged.
[p489] The plurality opinion concludes that the Due Process Clause was violated if one or more of the prior convictions used to impeach Loper's credibility, even though fully valid under Betts v. Brady—the prevailing law when Loper was tried in 1947—was rendered constitutionally infirm by Gideon. The plurality opinion does not make clear, however, whether evidence of any such convictions is considered to be so lacking in probative value as to violate due process or to be so prejudicial as to do so. If its conclusion were grounded solely on a consideration of undue prejudice, the rationale underlying today's decision would be elusive indeed. There is no suggestion in the record that the jury might have failed to follow the instructions given by the trial judge that consideration of these prior convictions was to be restricted solely to the issue of Loper's credibility. Nor can any plausible contention be made that a jury has more difficulty following such instructions when it is dealing with an uncounseled conviction than when it is dealing with a counseled one.
It must be, then, that the conclusion of the plurality opinion is based upon the view that it is fundamentally unfair for a jury to be allowed to treat an uncounseled conviction, introduced to impeach a defendant, as though it had the probative value of a counseled conviction. Under this view, jurors who are told of a prior uncounseled conviction are misled in regard to a matter of fact; [p490] i.e., by being told merely that the defendant was in fact previously convicted of a felony, they are misled into believing that he was duly convicted when, under a retroactive application of Gideon, he in fact was not duly convicted. I cannot agree that such a view justifies a finding here that it was fundamentally unfair of the trial judge at Loper's 1947 rape trial to fail to make an evidentiary ruling, on his own motion, that he could have justified only by anticipating by 16 years this Court's overruling of Betts v. Brady in 1963. Not even the wisest member of this Court could have hazarded that prediction in 1947.
The plurality opinion, of course, does not analyze the case in these terms. It merely concludes, under a rigidly mechanistic approach, that since this Court held in Gideon that an uncounseled felony conviction calls for a new trial with counsel, we are compelled to strike down a fully counseled pre-Gideon conviction obtained through a trial in which evidence of one or more prior uncounseled convictions was collaterally used. This, of course, gives Gideon a collateral consequence of wholly unrealistic dimensions that are unrelated to basic fairness or due process; it is an effort to "unring the bell" on a series of burglary convictions dating back to a period 41 years ago. Parenthetically, I note that Loper nowhere denies that he committed these burglaries.
We all agree that the convictions used to impeach Loper's credibility during the 1947 trial were valid under the law prevailing at that time. The jury at Loper's 1947 trial cannot, therefore, be said to have been misled in regard to any contemporaneous matter of fact. Nor can it be said, without distorting the doctrine of retroactivity beyond all-semblance of rationality and common sense, that the prosecutor or the presiding judge at Loper's rape trial acted in violation of the principle of "fundamental fairness." If Loper's trial was [p491] "fundamentally fair" when it was conducted, how can it be said to have undergone a metamorphosis because—16 years later and for another purpose—the law changed?
When we held that Gideon is retroactive, we meant that Gideon applies to an uncounseled felony conviction obtained in the past and renders that conviction invalid for all future purposes, i.e., it renders unlawful the continuation into the future of the convicted prisoner's incarceration unless a new trial is had. Gideon does not, however, render such a conviction retroactively invalid for all purposes to which it may have already been put in the past. The Court, in giving such an enlarged effect to Gideon, plows new ground, disregarding the implications that will surely follow from the broadening of scope it now gives to the doctrine of retroactivity. For there must be many convictions that will be senselessly rendered vulnerable to attack by today's holding.
The Court applies the doctrine of retroactivity as though it required us to assess the fairness of past judicial proceedings without making any distinctions between a decision that was rendered after those proceedings and given retroactive effect, and a decision that was rendered before those proceedings; the Court thus seems to view the doctrine of retroactivity as requiring us to judge the fairness of Loper's 1947 rape trial as though that trial followed Gideon. Had the trial indeed followed Gideon, and had the trial judge permitted the prosecution to use prior uncounseled convictions to impeach Loper, then it might well be said that the judge denied fundamental fairness to Loper in refusing to follow the clear teaching of a decision of this Court and in thereby "erod[ing] the principle" of that decision. Burgett v. Texas, 389 U.S. 109, 115 (1967). We are, however, presented with no such situation here. The judge at Loper's trial did not refuse to follow any decision of this Court. Indeed, had he made the ruling [p492] that the Court today implicitly holds he was required to make, he would have been very specifically refusing thereby to follow this Court's then-controlling decision in Betts v. Brady.
The plurality opinion states that "[i]f the retroactivity of Gideon is 'sound,' then this case cannot be decided under the ill-starred and discredited doctrine of Betts v. Brady...." If we are precise, of course, this case is not to be "decided under" either Betts or Gideon, for it raises an entirely different question from that which the Court faced in those two cases. Both Betts and Gideon dealt with the substantive right to counsel in a state felony trial. The instant case deals with the collaterally related, but altogether different, question of the fundamental fairness of an implied evidentiary ruling made long before Gideon. The failure of the plurality opinion to recognize this simple, albeit crucial, distinction unfortunately prevents the drawing of a rational line that would preserve all the values of both Gideon and Burgett without at the same time producing the extravagant result reached by the Court today.
The introduction, in good faith and without objection, of lawfully admissible evidence, the truth of which is not presently subject to challenge, can hardly be called a violation of due process. Nor will such a violation arise retroactively by the occurrence of later events that may give grounds for challenging the truth of that evidence. Cf. Townsend v. Sain, 372 U.S. 293, 317 (1963): "[T]he existence merely of newly discovered evidence relevant to the guilt of a state prisoner is not a ground for relief on federal habeas corpus." In 1947, Loper's prior burglary convictions, viewed as matters of evidentiary fact in the light of this Court's then-recent decision in Betts v. Brady, were valid convictions. Being valid in 1947, they were then admissible in evidence to impeach Loper's credibility. This Court's decision in Gideon 16 years [p493] later may have rendered one or more of those convictions vulnerable to attack and not usable for future evidentiary or other purposes. Bearing in mind, however, that those burglary convictions were nothing but matters of evidentiary fact for the purposes of Loper's 1947 rape trial, any subsequently discovered invalidity in one of those burglary convictions no more rendered the conduct of Loper's rape trial fundamentally unfair than would the subsequent discovery of new evidence, tending, for example, to discredit the testimony of a prosecution witness who was questioned in good faith by the State. The holding in Gideon that uncounseled convictions are constitutionally invalid properly leads us to require new trials to sustain any further confinement of persons previously convicted without counsel. But where prior uncounseled convictions were used in a pre-Gideon trial solely for evidentiary purposes to impeach the defendant, the logic of the rule enunciated in Townsend v. Sain, supra, counsels that we should treat Gideon for what it is in this context, i.e., a decision whose effect on the prior impeaching convictions is properly analogized to the discovery of new evidence. Neither fundamental fairness nor any specific constitutional provision requires that a rule of evidence be made retroactive; consideration for the orderly administration of justice dictates the contrary.
Burgett v. Texas, supra, on which the plurality opinion relies, should not be read either to require or to justify today's decision. Burgett dealt with a post-Gideon trial and establishes that it is a violation of due process to introduce against a defendant evidence of a prior conviction known at the time of its introduction to be constitutionally infirm under existing law. In regard to Loper's case, the worst that can be said is that 16 years after his trial there was an event—the decision in Gideon—that, had it pre-dated rather than [p494] post-dated the trial, would have affected an evidentiary ruling by the trial judge.
The rule implicit in the result reached by the Court today does violence both to common sense and to society's interest in the finality of judgments. Only if trial judges were soothsayers could they adhere to it. For under that rule, a prior conviction, admissible for impeachment purposes under state law and fully valid under the Constitution as explicitly interpreted by this Court at the time the conviction is sought to be introduced, becomes retroactively inadmissible if, years after the trial, a decision of this Court renders that prior conviction constitutionally infirm. With all respect, I submit that the United States Constitution does not give this Court the power to impose upon the States any such unmanageable and abstractly based rule as that. Indeed, such a rule is repugnant to the concept of federalism and to the very notions of reasonableness and orderliness embodied in the Due Process Clause. It is a distressing example of pressing the sound doctrine of retroactivity beyond the outer limits of its logic.
If Burgett does, indeed, mean what the plurality opinion reads into it, we should overrule that decision without delay. As Mr. Justice Harlan, for himself, Mr. Justice Black and MR. JUSTICE WHITE, observed, "We do not sit as a court of errors and appeals in state cases...." 389 U.S., at 120.

## Notes

* ↑ The District Court, after observing Loper and hearing him testify, stated that "petitioner has made false statements under oath, and has testified to a set of facts so roundly and thoroughly shown to be false by unimpeachable evidence that little or no credence may be placed in his own testimony...."
* ↑ Cf. Michelson v. United States, 335 U.S. 469 (1948), where this Court was called upon to strike a somewhat similar balance with respect to cross-examination designed to impeach the credibility of character witnesses who claim to be familiar with a defendant's reputation in the community. The Court held that when a defendant in a federal trial puts his character in evidence by calling such witnesses, the government may cross-examine those witnesses to determine whether they are aware of any prior arrests that may be on the defendant's record and that may consequently have affected his reputation. The Court reasoned that, despite the possibility of prejudice, "[t]o hold otherwise would give defendant the benefit of testimony that he was honest and law-abiding in reputation when such might not be the fact...." Id., at 484 (emphasis added).