Moore, Smith and Anderson, Circuit Judges. Moore, Circuit Judge (dissenting).
J. JOSEPH SMITH, Circuit Judge:
Respondent, Warden of Attica State Prison, appeals from an order and judgment of the United States District Court for the Western District of New York, Harold P. Burke, Chief Judge, sustaining a writ of habeas corpus by state prisoner, and directing new trial within a reasonable time. We find no error and affirm the judgment.
Petitioner was convicted in 1962 in Bronx County Court for the 1952 felony murder of Samuel Cohen, a grocer, and upon the jury's recommendation for mercy, received a life sentence. The Court of Appeals affirmed, and on motion to reargue Floyd presented for the first time a Federal Constitutional question, under the Sixth Amendment. Leave to reargue was denied.
On the trial of Floyd and his co-defendant Herrmann a confession of the latter was introduced, naming Floyd, at the time of the crime an ill-educated boy of 16, as an accomplice. There was no objection, or attempt to obtain a severance. Petitioner's counsel only asked that the jury be instructed that the confession was not binding on Floyd, and this was done. The evidence against Floyd, who did not put on a defense, consisted mainly of statements by Floyd to officials that he accompanied Herrmann, the codefendant, who was 21 at the time, to the grocery store where the crime was committed, and remained outside while Herrmann entered; virtually the only other evidence was the dying declaration of Cohen that "two white boys" shot him. When making the statements, Floyd was not advised of his right to remain silent, his right to counsel, or that his answers could be used against him. He did not ask for an attorney.
Herrmann confessed to the 9 year old crime in 1961, and implicated Floyd. Floyd made a statement to a detective then. About a month later he was picked up at about 3:00 in the morning and made an oral statement about 6:00 a.m. That afternoon he made a statement to the Assistant District Attorney, of which a stenographic record was made. In these statements, all of which were introduced on trial, Floyd denied there was any conversation between himself and Herrmann concerning any robbery prior to the crime, and claimed that he merely went along with Herrmann for an afternoon train ride.
The prosecutor's theory was that Floyd was a lookout. In summation the prosecutor observed that in Herrmann's confession he said "that the robbery had been in the Bronx and that Floyd was with him when he went into the grocery store to hold up the grocer." Floyd's counsel made no objection to the summation. In the charge the trial judge noted that Herrmann had said he had an accomplice, whom the court styled "another party whom he named," or "the other person," and referred to Floyd's statements as confessions.
Floyd's petition to the District Court was based on two grounds, first, a violation of the Sixth Amendment right to confront witnesses,*fn1 for the failure of the Trial Court to redact Herrmann's confession so as to delete references to Floyd; and second, a violation of the right to counsel and the resultant improper admission of the statements made by him. The District Court did not consider separately the right to counsel point, and relied instead primarily on the deletion issue, noting also the paucity of evidence against Floyd and the reference by the Trial Court to Floyd's statement as a confession.*fn2
The District Court was justified on the record in finding that this conviction was lacking in that fundamental fairness in criminal procedure enjoined upon the states by the due process clause of the Fourteenth Amendment of the Constitution of the United States. The use in evidence of Herrmann's confessions without deletion of the portions accusing Floyd, when Herrmann did not take the stand so that he might be cross-examined, and the dissipation of any possible curative effect of the limiting instruction by the remarks of the prosecutor in summation and the trial judge in his charge, made a fair consideration by the jury of Floyd's guilt or innocence on evidence properly admissible against him quite impossible. Moreover, the evidence properly admissible against Floyd was slight. Judge Van Voorhis, dissenting in the New York Court of Appeals, would have reversed for insufficiency of evidence to convict.
The state argues that state remedies are not exhausted, since a Huntley hearing, People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179 (1965) is available on the question of the use of Floyd's admissions. But a Huntley hearing is a method of determining the voluntary character of confessions, not the essential unfairness of a lack of confrontation through use of out of court statements by a co-defendant who does not take the stand. It is unlikely that Floyd could obtain such a hearing or that it would reach the questions he raised here. Nor is coram nobis available on these issues since defendant had counsel at the trial. People v. Howard, 12 N.Y.2d 65, 236 N.Y.S.2d 39, 187 N.E.2d 113 (1962).
The state also contends that there was a waiver. But New York's rule on confrontation developed subsequent to Floyd's trial in February 1962. People v. Vitagliano, 15 N.Y.2d 360, 258 N.Y.S.2d 839, 206 N.E.2d 864 (1965), People v. Robinson, 16 A.D.2d 184, 224 N.Y.S.2d 705 (4th Dept. Feb. 22, 1962). There can be no waiver of a right not known to exist, for there can then be no "considered choice" required by Fay v. Noia, 372 U.S. 391, 439, 83 S. Ct. 822, 9 L. Ed. 2d 837 (1963).
And of course the direct holding by the Supreme Court that the right to confrontation given by the Sixth Amendment is applied to the states by the Fourteenth, Pointer v. State of Texas, 380 U.S. 400, 85 S. Ct. 1065, 13 L. Ed. 2d 923 (1965), came after the state court trial. Judge Burke did not reach the question of whether Pointer v. State of Texas was to be given retroactive effect so that the lack of confrontation alone required a new trial under the Sixth Amendment as applied to the states by the Fourteenth.
It would appear from Johnson v. State of New Jersey, 384 U.S. 719, 86 S. Ct. 1772, 16 L. Ed. 2d 882 (1966) that the right to confrontation required of the states by Pointer v. State of Texas will be applied retroactively for, while "we must determine retroactivity 'in each case' by looking to the peculiar traits of the specific 'rule in question,'" an important factor is whether the rule "[guards] against the possibility of unreliable statements." Cf. Linkletter v. Walker, 381 U.S. 618, 85 S. Ct. 1731, 14 L. Ed. 2d 601 (1965); Tehan, Sheriff v. U.S. ex rel. Shott, 382 U.S. 406, 86 S. Ct. 459, 15 L. Ed. 2d 453 (1966). Escobedo v. State of Illinois, 378 U.S. 478, 84 S. Ct. 1758, 12 L. Ed. 2d 977 (1964) and Miranda v. State of Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), may be said to focus primarily on procedural devices to insure knowledge of rights, Linkletter unreasonable search, Tehan on comment on assertion of rights, and are held not retroactive. Pointer v. State of Texas dealing with the right of confrontation on the other hand focuses directly on the opportunity to test the reliability of statements such as the out of court statements of Herrmann, used here with no opportunity of confrontation.
Moreover, the implication is plain in Davis v. State of North Carolina, 384 U.S. 737, 86 S. Ct. 1761, 16 L. Ed. 2d 895 (1966), that while Escobedo and Miranda are not retroactive, denials of the rights that they guarantee for the future are factors to which weight may be given in determining the overall question of whether coercion existed in prior cases. So here, in determining the overall question of whether the trial was essentially unfair, Judge Burke rightly gave weight to the right of confrontation recognized by Pointer v. State of Texas. Justices Harlan and Stewart, concurring in the result in Pointer, were in no doubt that the right of confrontation was " 'implicit in the concept of ordered liberty,' Palko v. [State of] Connecticut, 302 U.S. 319, 325 [58 S. Ct. 149, 152, 82 L. Ed. 288], reflected in the Due Process Clause of the Fourteenth Amendment independently of the Sixth." (Mr. Justice Harlan, concurring in the result, 380 U.S. at 408, 85 S. Ct. at 1070.) We cannot find any ...