# Burgett v. Texas/Concurrence Warren

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* Concurring Opinion Warren
United States Supreme Court
389 U.S. 109
Burgett v. Texas
Argued: Oct. 18, 1967. --- Decided: Nov 13, 1967
Mr. Chief Justice WARREN, concurring.
I am in full agreement with the opinion of the Court and the reasons stated therein for reversing the conviction in this case. However, in view of the terse dissent entered by my Brother Harlan, I feel constrained to add some observations of my own.
The dissent refers to the Court's decision in Spencer v. State of Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606, and the entire thrust of the dissent is reminiscent of that decision of last Term which placed this Court's stamp of approval on the Texas recidivist procedures from which this case evolves. The dissent reminds us that '(w)e do not sit as a court of errors and appeals in state cases.' I would not disagree with that statement is an abstract proposition. But we are not dealing with abstracts in this case. We are dealing with a very real denial of a state criminal defendant's rights as guaranteed by the Federal Constitution. We are also told by the dissent that 'this case shows no prosecutorial bad faith or intentional misconduct.' But this misses the mark. We are not limited in our review of constitutional errors in state criminal proceedings to those errors which flow from 'prosecutorial bad faith or intentional misconduct.' Our concern is with the effect of those errors, whether well-intentioned or not, on the constitutionally protected right of a criminal defendant to a fair and impartial trial.
This case is a classic example of how a rule eroding the procedural rights of a criminal defendant on trial for his life or liberty can assume avalanche proportions, burying beneath it the integrity of the fact-finding process. In Spencer, the Court approved a procedure whereby a State, for the sole purpose of enhancing punishment, includes in the indictment allegations of prior crimes which are read to the jury and enters evidence at trial of those prior crimes, no matter how unrelated they might be to the charge on which the defendant is being tried. The rule adopted in Spencer went so far as to allow the State to enter evidence on the prior crimes even though a defendant might be willing to stipulate the earlier convictions. In this case, that harsh rule was expanded to a degree close to barbarism.
In addition to charging the petitioner with the principal crime of 'assault with malice aforethought with intent to murder,' the indictment alleged four prior convictions, one in Texas and three in Tennessee. Despite the efforts of the petitioner's attorney to quash those portions of the indictment referring to the prior crimes, the entire indictment was read to the jury at the start of the petitioner's one-day trial. The prosecutor then proceeded to offer evidence of the prior convictions. The petitioner's attorney objected to evidence of one Tennessee conviction because a certified copy of that conviction showed that the petitioner had not been represented by counsel. The trial judge reserved his ruling on the objection. The prosecution next offered a second version of that same Tennessee conviction which omitted any reference to the absence of counsel but which did not show a waiver of counsel. The petitioner's attorney again objected and the trial judge again reserved his ruling. The prosecutor then offered into evidence a certified copy of the indictment in the prior Texas case, and it was received without objection. All this occurred in the presence of the jury. However, when the petitioner's attorney objected to evidence concerning the judgment and sentence in the prior Texas case, the jury was excused and testimony was taken out of the presence of the jury. At the close of that evidence and before the jury returned, the trial judge ruled that the prior Texas conviction was void under state law. In addition, the trial judge sustained the objection to the first version of the Tennessee conviction but overruled the objection to the second version of the same conviction. The jury then returned and the trial continued. The next the jury was to hear of the prior convictions was a brief instruction from the trial judge advising the jurors not to consider the prior crimes for any purpose. The jury was never told, however, that two of the prior convictions charged were void and that the prosecution had failed to offer testimony on the validity of the other prior crimes charged in the indictment.
Thus, the jury went into its deliberations knowing that the petitioner had been convicted and imprisoned for four prior felonies, although not one had been proven at the trial. To expect that the jury could wipe this from its memory and decide the petitioner's guilt only on the basis of the evidence of assault is to place too much faith in a jury's ability to detach itself from reality. This is particularly true since the trial judge gave the jurors not the slightest clue as to why matters which consumed so much time at trial were suddenly being removed from their consideration.
To suggest that such a procedure accords a man charged with a crime due process is beyond belief. This Court has reversed convictions in other cases based on unfair influences on juries which must be deemed minor when compared to the pervasive prejudice in this case. Not long ago we ruled that a defendant was denied due process when a court bailiff remarked in the presence of the jurors, 'Oh that wicked fellow, he is guilty'; and, 'If there is anything wrong (in the verdict) the Supreme Court will correct it.' Parker v. Gladden, 385 U.S. 363, 87 S.Ct. 468, 17 L.Ed.2d 420. We also reversed a murder conviction because two prosecution witnesses were deputy sheriffs who had been assigned to accompany the jury while it was sequestered. Turner v. State of Louisiana, 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424. If these transgressions offend constitutional standards of fairness, can it be doubted that the petitioner's trial was stripped of all vestiges of due process when the jurors were told of his prior void convictions and the error was not explained to them?
This case is the frightful progeny of Spencer and of that decision's unjustified deviation from settled principles of fairness. Today we have placed a needed limitation on the Spencer rule, but nothing except an outright rejection would truly serve the cause of justice.
Mr. Justice HARLAN, whom Mr. Justice BLACK and Mr. Justice WHITE join, dissenting.
The record in this case shows no prosecutorial bad faith or intentional misconduct. To the extent that the prosecutor contemplated the use of prior convictions in a one-stage recidivist trial, his right to do so is of course established by Spencer v. State of Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606, decided only last Term. The fact that the prior convictions turned out to be inadmissible for other reasons involves at the most a later corrected trial error in the admission of evidence. We do not sit as a court of errors and appeals in state cases, and I would affirm the judgment of the state court.

## Notes

* ↑ Prosecutorial bad faith, of course, is not an irrelevant element in our review of state criminal convictions. It can often make even more intolerable errors which demand correction in this Court. See, e.g., Miller v. Pate, 386 U.S. 1, 87 S.Ct. 785, 17 L.Ed.2d 690; Napue v. People of State of Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217; Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791.
* ↑ The dissent is not alone in viewing this case solely in terms of the prosecutor's good or bad faith. The Texas Court of Criminal Appeals disposed of the petitioner's objection to the use of the prior void convictions at trial with the cryptic observation that '(t)here is no showing of bad faith on the part of the state in alleging or attempting to prove the prior convictions.' Boswell tells us that Dr. Johnson once observed that 'Hell is paved with good intentions.' Boswell, Life of Samuel Johnson 257 (Great Books ed. 1952). If the good-faith view of this case should prevail, then surely this petitioner's road to prison would be paved with the same good intentions.
* ↑ The record is silent concerning the second and third Tennessee convictions alleged in the indictment, and the prosecution apparently did not offer any evidence on those convictions. However, the jury had been made aware of those prior crimes when the indictment was read at the start of the trial.
* ↑ I do not mean to express any disapproval of our decisions in Parker and Turner. I joined both of those opinions and I have no doubt the practices condemned in those cases were at odds with settled principles of due process of law. However, it follows a fortiori from those decisions that we are presented in this case with a violation of due process.
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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