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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.

 In Bruton, the Supreme Court overruled Delli Paoli v. United States, 352 U.S. 232, 77 S. Ct. 294, 1 L. Ed. 2d 278 (1957), and held that in a joint trial the admission into evidence of an extrajudicial statement *fn1" of one defendant inculpating a codefendant violates the latter's right of cross-examination guaranteed to him by the Confrontation Clause of the Sixth Amendment. And this is so despite attempted curative instructions to a jury to disregard such statement in determining the guilt or innocence of the implicated codefendant. Delli Paoli, supra, decided in 1957, held that under the circumstances of that case, where there was other sufficient evidence to sustain a conviction, the extrajudicial declaration of a defendant inculpating a codefendant might very well be cured by appropriate limiting instructions to the jury. Such a principle was repudiated ten years later in Bruton. Three weeks thereafter in Roberts,2 the Supreme Court declared the new principles of Bruton to be applicable to state prosecutions under the 14th Amendment and that the 6th Amendment principles enunciated in Bruton were to be applied in the courts retroactively. *fn3" In so determining, the Court in Roberts stated at p. 294, of 392 U.S., at p. 1922 of 88 S. Ct.:


"'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 not to consider it against other defendants, Judge Learned Hand, in a series of cases, has recognized the psychological feat that this solution of the dilemma demands of juries. He thus stated the problem:


"'In effect, however, the rule probably furthers, rather than impedes, the search for truth, and this perhaps excuses the device which satisfies form while it violates substance; that is, the recommendation to the jury of a mental gymnastic which is beyond, not only their powers, but anybody else's.' Nash v. United States, 2 Cir., 54 F.2d 1006, 1007.


"It may well be that where such a declaration only glancingly, as it were, affects a co-defendant who cannot be charged with the admitted declaration, the rule enforced by the Court in this case does too little harm not to leave its application to the discretion of the trial judge. But where the conspirator's statement is so damning to another against whom it is inadmissible, as is true in this case, the difficulty of introducing it against the declarant without inevitable harm to a co-conspirator, the petitioner in this case, is no justification for causing such harm. The Government should not have the windfall of having the jury be influenced by evidence against a defendant which, as a matter of law, they should not consider but which they cannot put out of their minds. * * *


"It is no answer to suggest that here the petitioner-defendant's guilt is amply demonstrated by the uninfected testimony against him. That is the best of reasons for trying him freed from the inevitable unfairness of being affected by testimony not admissible against him. In any event, it is not for an appellate tribunal to know how the jury's mind would have operated if powerfully improper evidence had not in effect been put in the scale against petitioner."

 The obvious futility of remedial instructions to a jury, however emphatic, was emphasized in Bruton at pp. 135-136 of 391 U.S., at p. 1627 of 88 S. Ct.:


"[There] are some contexts in which the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored * * * Such a context is presented here, where the powerfully incriminating extrajudicial statements of a codefendant, who stands accused side-by-side with the defendant, are deliberately spread before the jury in a joint trial."

 And further, at page 137, 88 S. Ct. at page 1628:


"Despite the concededly clear instructions to the jury to disregard Evans' inadmissible hearsay evidence inculpating petitioner, in the context of a joint trial we cannot accept limiting instructions as an adequate substitute for petitioner's constitutional right of cross-examination. The effect is the same as if there had been no instruction at all."

 We are confronted in the present case with something more than the now denounced implication by one defendant of his codefendant's guilt of the crime charged. This harm was pyramided by the testimony of Dr. Spradley's recitation of the alleged declarations made to him by Gary Rush inculpating the petitioner in this and in other crimes. The admission of such tainted evidence was sought to be justified as an essential factor in the foundation upon which the doctor formulated his professional opinion as to the mental competency of Gary Rush. *fn10" This rationalization purports to make an expert's choice of bases for his opinion more important to the jury's fact-finding process than the petitioner's constitutional right to a fair trial. Generally, whether or not such evidence causes fatal infection of the truth-determining process at trial is a question of logical probabilities. Johnson v. New Jersey, 384 U.S. 719, 729, 86 S. Ct. 1772, 16 L. Ed. 2d 882 (1966). The likelihood of the challenged testimony, adversely affecting the petitioner on the issue of his guilt or innocence so as to fatally infect the trial, seems abundantly clear. *fn11"

 The potentiality of infection is emphasized when, other than the confession of the petitioner the voluntariness of which was under attack, the challenged confession of Gary Rush implicating the petitioner, and the strenuously contested testimony of Dr. Spradley, the State's proofs were rather meager. If, as was stated in Burgett v. Texas, 389 U.S. 109, at p. 115, 88 S. Ct. 258, at p. 262, 19 L. Ed. 2d 319,


"The admission of a prior criminal conviction which is constitutionally infirm under the standards of Gideon v. Wainwright is inherently prejudicial and we are unable to say that the instructions to disregard it made the constitutional error 'harmless beyond a reasonable doubt' within the meaning of Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705." '

 then, how "inherently prejudicial" was Dr. Spradley's testimony, repeated on several occasions, *fn12" that Gary Rush implicated the petitioner not only in this offense but in other robbery escapades perhaps "a hundred in number" (T 1934) and in one of which a "man was shot" (T 1926) but no proof was offered of any prior conviction of any of these alleged robberies? Not only was such infection "probable," as referred to in Johnson, but the verdict cannot meet the test of a fair trial as set forth in Fahy v. Connecticut, 375 U.S. 85, 84 S. Ct. 229, 11 L. Ed. 2d 171 (1963):


"We are not concerned here with whether there was sufficient evidence on which the petitioner could have been convicted without the evidence complained of. The question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction." 375 U.S. 86-87, 84 S. Ct. 230.

 See also, Justice Frankfurter's dissent in Delli Paoli, supra. Another way of stating the test for ascertaining fatal unconstitutional infection of fair trial may be found in Chapman v. California, 386 U.S. 18 at page 24, 87 S. Ct. 824 at page 828, 17 L. Ed. 2d 705 (1967), regarding prejudicial comment by a prosecutor upon a defendant's failure to testify:


"We, therefore, do no more than adhere to the meaning of our Fahy case when we hold, as we now do, that before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt."

 A corrollary of the criteria set forth in Chapman is that when the admission of very questionable testimony to which strenuous, persistent, and serious objections are made, as in this case, a trial judge is confronted with the threshold determination of placing the proffered evidence in the scales and balancing the probative value of the evidence offered for a certain purpose as against the potential prejudice to a defendant or a codefendant. If the evidence is or tends to be prejudicial, before he can admit it, he must find that it is harmless beyond a reasonable doubt in constitutional effect - a formidable barrier indeed.

 Applying the foregoing criteria for a fair trial in the constitutional sense, to the circumstances here, can it be said with any reasonable conviction that Gary Rush's extrajudicial implication of the petitioner in this and in other crimes, compounded by the damaging testimony of Dr. Spradley, did not adversely affect the petitioner on the question of his individual guilt or innocence? Or, can it be said that this was harmless federal constitutional error beyond a resonable doubt, or that it only "glancingly" affected the petitioner? Or, that the jury implicitly followed the court's instructions and completely eradicated from their minds all declarations by Gary Rush of the petitioner's guilt in this and other "robbery escapades * * * a hundred in number" (T 1934) and based its conviction of the petitioner on other rather meager and circumstantial evidence in the case? As Mr. Justice Frankfurter in his dissent in Delli Paoli observed, how can anyone in retrospect know "* * * how the jury's mind would have operated if powefully improper evidence had not in effect been put in the scale against petitioner"? (352 U.S. 248, 77 S. Ct. 303, 1 L. Ed. 2d 278) How can anyone reasonably ascertain upon just what evidence the jury relied, proper or incompetent or prejudicial, in determining their verdict? It is submitted that no reasonable man can answer any of these queries in the affirmative.

 The probability of petitioner's guilt in view of his prior plea of non vult does not, however, deprive him of a right to a constitutionally fair trial. Hindsight works many wonders and now demonstrates that a severance should have been granted. True, joint trials are often indicated by circumstances which render them timesaving, convenient and economical assuming, of course, that no obvious prejudice will result to the defendants on the issue of their individual guilt or innocence. Until the time of Bruton, it was fundamentally a matter of potential prejudice and legally effective cure. However, since Bruton emphatically repudiated the basic premise in Delli Paoli that a jury can and will heed a trial judge's cautionary and limiting instructions, thereby "curing" the potential prejudice engendered by extrajudicial inculpatory statements implicating a codefendant, the judicious supposition of economy and dispatch provided by joint trials *fn13" must, of necessity, give way to the paramount judicial concern for the constitutional protection of a codefendant.

 When we consider the instant record, in light of Chapman, Bruton and Roberts, reluctant as we may be to disturb a conviction for a felony-murder which was upheld by the New Jersey Supreme Court, the further development of the law since that affirmance clearly mandates but one course: constitutional protection rather than administrative convenience. Such a course was anticipated in State v. Young, *fn14" 46 N.J. 152, 215 A.2d 352 (1965) resulting in the adoption of a new rule of criminal procedure in New Jersey, *fn15" and referred to in the recent case of State v. Barnett, 53 N.J. 559, 252 A.2d 33 (decided April 7, 1969), wherein Justice Jacobs discusses the feasibility of a trial court's deletion of inculpatory statements made by one defendant of another, and states:


"If such effective deletion is not feasible, separate trials are required since cautionary instructions will no longer suffice. See Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968); Roberts v. Russell, 392 U.S. 293, 88 S. Ct. 1921, 20 L. Ed. 2d 1100 (1968)."

 Thus, it would appear that most of the problems attendant to joint trials and to procedural motions for severance have come full circle, but perhaps not to full rest. *fn16" However, it seems without doubt that the grant of a severance in the instant case, or an appropriate deletion of the damning implications of the petitioner in this, as well as other crimes, would have eliminated the evil which effectively destroyed his constitutional right to a fair trial. *fn17"

 It should be observed that the doctrine of exhaustion of state court remedies, prior to seeking federal habeas corpus relief under 28 U.S.C. § 2254, is in the interest of comity affording the state court first opportunity to determine the merits of a challenge directed to that State's compliance with federal law. United States of America ex rel. White v. State of New Jersey, 287 F. Supp. 685 (D.N.J.1968). But at the same time, the doctrine does not delimit the federal power of habeas corpus, 28 U.S.C. § 2241. This doctrine of exhaustion of state remedies is one which governs the proper exercise of power and is rooted in consideration of comity rather than in the scope of federal habeas corpus jurisdiction. Hammond v. Lenfest, 398 F.2d 705 (2 Cir. 1968). Deference to the state court's post-conviction relief procedure might well result in further delay. Far too much unavoidable delay has been occasioned. *fn18" See: United States of America ex rel. Boyance v. Myers, 372 F.2d 111, 113 (3 Cir. 1967). Consideration of comity aside, where the error is of such federal constitutional dimension as the denial of a fair trial, a federal court having concurrent habeas corpus jurisdiction is obliged to act with alacrity for the trilogy of Chapman, Bruton and Roberts binds us all.

 Accordingly, a writ of habeas corpus shall issue discharging the petitioner from the illegal custody of the respondent.

 Now, therefore, it is on this 29th day of April, 1969 ORDERED that a writ of habeas corpus issue directed to Howard Yeager, Principal Keeper of the New Jersey State Prison, at Trenton, New Jersey, to return Anthony F. Ordog, Jr. to Camden County to there plead or stand trial on Indictment No. 631-62.

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