Loper v. Beto/Dissent Blackmun

by Harry Blackmun

MR. JUSTICE BLACKMUN, dissenting.

The plurality in this case applies Burgett v. Texas, 389 U.S. 109 (1967), and, seemingly, United States v. Tucker, 404 U.S. 443 (1972), to proscribe the use of allegedly uncounseled prior convictions of many years ago for the purpose of impeaching the defendant who takes the stand in his own defense. Burgett may be claimed to be a natural succeeding step to Gideon v. Wainwright, [p495] 372 U.S. 335 (1963), but its application to Loper's case has aspects, not particularly stressed by the plurality, that are troublesome for me:

1. The resolution of the original statutory rape case came down to a choice, on the part of the jury, between the testimony of the eight-year-old victim and the testimony of Loper. This, of course, is not uncommon in a rape case, but it always provides an element of unsureness. It is the woman's—or the child's—word against the man's. Hanging in the balance is a penalty of great severity. The 50-year sentence imposed on Loper is illustrative and is a tempting target for a reviewing court.

2. Obviously, the Court's familiar remand "for further proceedings consistent with this opinion" is really meaningless in this case. Certainly it does not carry with it the usual meaning and implications. The incident that is the subject of the criminal charge took place 25 years ago. The victim, then eight years old, is now about 33. I suspect that an event which would be vivid at the time for a child has faded, mercifully, in the victim's memory. Retrial, if not impossible, is highly unlikely. The Court's remand therefore actually translates into an enforced state acquittal and release for Loper.

3. The plurality's reliance upon Loper's testimony at the habeas hearings and upon certified records of Mississippi and Tennessee proceedings is not complete. Perhaps the records of the 1931 and 1940 proceedings could be said to support an implication that Loper was not represented by counsel in those cases. But no record at all of the 1932 Mississippi proceeding was presented. And the 1935 recital that Loper appeared "in person" is no more than the customary recital, if properly drawn, for any criminal proceeding when counsel is, in fact, present. As the plurality's footnote 3 reveals, Loper testified as to the absence of counsel at only the 1931 and 1940 proceedings. He said nothing with respect to the 1932 and 1935 proceedings. [p496] Thus, for me, the 1932 and 1935 prior convictions stand effectively unchallenged on this record. Surely, as to them, Loper has not sustained his burden of proof.

4. I have more than a mild suspicion that as a practical matter the outcome of the case would have been exactly the same had the priors not been used to impeach Loper's credibility. Yet their use was legally accepted 25 years ago. That use, now held improper by the Court, destroys the conviction irretrievably.

5. Loper's troubles with the law did not cease with his statutory rape conviction in 1947. As the opinion of the Court of Appeals reveals, 440 F. 2d 934, 936, Loper was on parole in 1963 when he was arrested for car theft in Mississippi. While a parole revocation order was awaiting execution, he escaped and was a fugitive for more than a year.

6. I see no need to recede from Burgett v. Texas at this time, but its application to the circumstances of Loper's case gives me the impression that what appears to be an acceptable principle can be run into the ground when indiscriminately applied. Here again, by impractical application, the plurality has painted itself into a corner. Here again, some realism is needed. See United States v. Tucker, 404 U.S., and 452 (BLACKMUN, J., dissenting).

We were advised at oral argument that Loper once more is on parole and is working in Texas.^[1] Thus, assuming he behaves himself or, to put it more formally, that he does not violate his parole, the plurality's decision, however it were to go, would not have much effect upon his present freedom. On balance, I feel that THE CHIEF JUSTICE and MR. JUSTICE REHNQUIST, in dissent, have the better of the argument, and certainly the stronger position in the light of the practicalities. I therefore also dissent.

Notes

1. Tr. of Oral Arg. 27, 31-32.