The chronology, the background of the facts and our overriding of the New York State courts in this case prevent me from joining in the opinion of, and the result reached by, the majority.
The appellee, Albert Jefferson, convicted of rape in the first degree and sentenced (March 7, 1958) as a second felony offender, has had his full share of “due process.” In 1965 he obtained a Huntley hearing attacking a 1957 confession. Upon advice of counsel a witness was not called. Jefferson did not take the stand. All State appellate rights were exhausted. Then followed the quite usual resort to the Federal courts. The habeas corpus petition was denied without a hearing. On appeal this court thought that “the Huntley hearing may have been inadequate” and remanded for a District Court hearing. At that hearing in 1969 a witness appeared who then remembered that he had played football with Jefferson 21 years ago and that he recognized in 1969 Jefferson as the man he had seen in the police station in 1957 being coerced into signing a confession although he did not recognize Jefferson at the time.
At the original trial the victim of the crime testified; the confession was introduced. This in 1958. Seven years later at the Huntley hearing Jefferson apparently had forgotten about or was unaware of his football friend even as the friend was unaware of Jefferson. In any event Jefferson did not take the stand.
By coincidence time (or better the lapse thereof) has proven to be a remarkable restorative to two memories. To a decision to override the courts of New York upon such a foundation I cannot subscribe and, hence, would reverse the order below.