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April 29, 1969

UNITED STATES of America ex rel. Anthony F. ORDOG, Jr., No. 40695, Petitioner,
Howard YEAGER, Principal Keeper, New Jersey State Prison, Respondent

The opinion of the court was delivered by: COHEN

 COHEN, District Judge:

 The issue presented by this petition for a writ of habeas corpus is whether the principles of law set forth in Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476, decided May 20, 1968, and held to be retroactive in Roberts v. Russell, 392 U.S. 293, 88 S. Ct. 1921, 20 L. Ed. 2d 1100, decided June 10, 1968, are applicable to the circumstances of this case, which was tried in May and June, 1964.

"'We have * * * retroactively applied rules of criminal procedure fashioned to correct serious flaws in the fact-finding process at trial.' Stovall v. Denno, 388 U.S. 293, 298, 87 S. Ct. 1967, 1970, 18 L. Ed. 2d 1199. See Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908; Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799; Reck v. Pate, 367 U.S. 433, 81 S. Ct. 1541, 6 L. Ed. 2d 948; Linkletter v. Walker, 381 U.S. 618, 639, n. 20, 85 S. Ct. 1731, 14 L. Ed. 2d 601; Johnson v. New Jersey, 384 U.S. 719, 727-728, 86 S. Ct. 1772, 16 L. Ed. 2d 882; Compare Brookhart v. Janis, 384 U.S. 1, 86 S. Ct. 1245, 16 L. Ed. 2d 314. Despite the cautionary instruction, the admission of a defendant's confession which implicates a codefendant results in such a 'serious flaw' * * * the error 'went to the basis of fair hearing and trial because the procedural apparatus never assured the [petitioner] a fair determination' of his guilt or innocence."

 We are obliged to examine this petition and the record of this case in light of these recent rulings. The petitioner, Anthony F. Ordog, Jr., was indicted by the Camden County Grand Jury, together with Gary Rush and Russell Rush, for the crime of felony-murder. The State of New Jersey contended that on January 18, 1962, during the perpetration of an armed robbery at the Farm Tavern located in Winslow Township, Camden County, Russell Rush, armed with a shotgun, and Gary Rush, armed with a claw hammer, terrorized the patrons of the tavern in the course of the robbery; relieved a customer and one of the proprietors of their wallets; emptied the cash register of its contents; and, when Mary Tilton, co-owner of the tavern, who was behind the bar at the time, denied having any more money, she was shot at close range and killed by Russell Rush. The prosecution contended further, that the petitioner was the driver of the "getaway" car waiting outside the tavern.

 Upon the initial arraignment, all three named defendants pleaded not guilty. Thereafter, they all changed their pleas to non vult. Subsequently, petitioner and Gary Rush retracted their pleas and reentered pleas of not guilty; Russell Rush's plea of non vult remained. *fn4" During all these proceedings, the defendants were each represented by assigned counsel. On two occasions, petitioner's counsel moved for a severance pursuant to R.R. 3:5-7, Rev.N.J.Rules of Crim.Pract. and Proceed., which applications were denied. At trial, the State did not seek the death penalty *fn5" and, under the circumstances, could not conscientiously do so. *fn6" Both defendants were found guilty and the jury recommended life imprisonment. Both appealed directly to the New Jersey Supreme Court, which unanimously affirmed the convictions. State v. Ordog, 45 N.J. 347, 212 A.2d 370 (1965), cert. den. 384 U.S. 1022, 86 S. Ct. 1942, 16 L. Ed. 2d 1025 (June 20, 1966).

 The reasons urged here by petitioner for habeas corpus relief on constitutional grounds are substantially the same as those raised in the State Court seeking reversal of the conviction. Aside from attacking the voluntariness of his own alleged confession and the alleged prejudicial summation of the prosecutor, petitioner principally maintains that he was denied a fair trial (1) by reason of the rejection of his timely motions for a severance; (2) by the admission in evidence of declarations contained in an alleged confession of the codefendant Gary Rush, implicating the petitioner *fn7" to an extent unremedied by the trial court's limiting instructions to the jury, and especially so inasmuch as Gary Rush repudiated his alleged confession, attacking its voluntariness and interposing a defense of insanity; and (3) by the admission into evidence of the hearsay testimony of Dr. James Spradley, a psychiatrist produced by the State in rebuttal of Gary Rush's defense of insanity. Inasmuch as all three of these contentions are correlated, they shall be considered in one context.

 Severance having been denied, the core of our problem is whether the admissions into evidence of the extrajudicial confession and the declarations of Gary Rush to Dr. Spradley inculpating the petitioner were such as fatally infected the trial. Dr. Spradley testified that during the course of his examination of Rush, seeking to determine his mental competency, he elicited a "history" from him in which Rush implicated the petitioner not only in the crime in question but in numerous others as well. Strenuous and persistent objections, both out of and in the presence of the jury, were made by counsel to the admission of this testimony inculpating the petitioner (T 1873-1930). *fn8" The trial court permitted this testimony before the jury upon the doctor's representation that he considered such information, even though implicating the petitioner, an essential factor for the formulation of his professional opinion regarding the mental status of Gary Rush. It should be observed that, unlike Gary Rush, no defense of insanity was interposed on behalf of the petitioner. *fn9"

 In keeping with a line of New Jersey decisions and consonant with the ruling in Delli Paoli, the trial court, at the time of the admission into evidence of Rush's alleged confession implicating the petitioner, and as well upon the introduction of Dr. Spradley's rebuttal testimony, and later in its charge, carefully and clearly cautioned the jury that all these extrajudicial statements inculpating the petitioner were to be limited to the extent that they pertained to Gary Rush only and could not be considered by them in determining the guilt or innocence of the petitioner. Additionally, in regard to the testimony of Dr. Spradley, the jury was admonished that this expert testimony was admitted solely for the purpose of providing psychiatric background and foundation for the doctor's opinion respecting the mental competency of Gary Rush and was not offered for the truth of the reported declarations.

 On appeal, the New Jersey Supreme Court, insofar as the challenged testimony of Dr. Spradley was concerned, relied on their holding in State v. Lucas, 30 N.J. 37 at pp. 79-80, 152 A.2d 50 (1959), which in turn relied on 2 Wigmore on Evidence (3d ed. 1940), § 228, p. 14; 6 Wigmore, supra, § 1790; and McCormick, § 288, at pp. 467-468. In Lucas, however, the challenge was directed to the admission of statements of guilt against an accused who related such statements to the psychiatrist and not, as in this case, affecting a codefendant. And, insofar as the challenged evidence of Gary Rush's alleged confession implicating the petitioner was concerned, the New Jersey Supreme Court relied on Delli Paoli. In both instances, the New Jersey Supreme Court held such evidence properly admissible when coupled with carefully limiting instructions to the jury as to its singular effect upon the relator and the confessor, Gary Rush, and not upon the petitioner. State v. Ordog, supra, 45 N.J., at pp. 355-357, 212 A.2d 370. Significantly, certiorari was denied on June 20, 1966, 384 U.S. 1022, 86 S. Ct. 1942, 16 L. Ed. 2d 1025. Such was the state of the law when the New Jersey Supreme Court was confronted with the instant problem of an extrajudicial statement implicating a codefendant. However, since the rulings in Bruton and Roberts, wherein the inculpation was not as damaging as that presented here, attempted curative instructins cannot remedy the fatal and unconstitutional infection of the fact-finding and truth-determining process under the circumstances sub judice as they pertain to this petitioner. See Bruton, 391 U.S. at 126, 88 S. Ct. at 1622:

"We hold that, because of the subsubstantial risk that the jury, despite instructions to the contrary, looked to the incriminating extrajudicial statements in determining petitioner's guilt, admission of Evans' confession in this joint trial violated petitioner's right of cross-examination secured by the Confrontation Clause of the Sixth Amendment. We therefore overrule Delli Paoli and reverse."

 It is noteworthy that the dissent in Delli Paoli (352 U.S. 246, 77 S. Ct. 294, 1 L. Ed. 2d 278), written by Mr. Justice Frankfurter, in which Justices Black, Douglas and Brennan joined, has become the majority view now expressed in Bruton. Mr. Justice Frankfurter, at pp. 247-248, 77 S. Ct. at p. 302, with astute insight analyzed the problems of joint trials and with characteristic foresight suggested the present resolution, as follows:

"* * * One of the most recurring of the difficulties pertains to incriminating declarations by one or more of the defendants that are not admissible against others. The dilemma is usually resolved by admitting such evidence against the declarant but cautioning the jury against its use in determining the guilt of the others. The fact of the matter is that too often such admonition against misuse is intrinsically ineffective in that the effect of such a nonadmissible declaration cannot be wiped from the brains of the jurors. The admonition therefore becomes a futile collocation of words and fails of its purpose as a legal protection to defendants against whom such a declaration should not tell. While enforcing the rule of admitting the declaration solely against a declarant and admonishing the jury ...

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