(concurring):
I concur fully in Judge Ward’s thorough opinion. Nevertheless, Judge Timbers’s vigorous dissent moves me to address briefly the policies a federal court must heed when undertaking habeas corpus review of a state court conviction. I am not unmindful of the well-considered reasons underlying our general reluctance to tamper with state court judgments of conviction. In Forman v. Smith, 633 F.2d 634 (2d Cir. 1980), cert. denied, 450 U.S. 1001, 101 S.Ct. 1710, 68 L.Ed.2d 204 (1981), we articulated a number of factors the Supreme Court identified in Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977) for determining whether noncompliance with a state procedural rule precludes federal habeas review. Comity, we stated, mandates that, in general, federal courts should respect state court proceedings. Finality is a particularly relevant factor in this case because Klein was convicted in 1968, and we find ourselves, thirteen years later, still embroiled in this controversy. A closely related element is accuracy: a state trial, unlike federal habeas review, is conducted a relatively short time after the alleged crime has *292been committed, at a time when witnesses are available and memories are fresh. Finally, we noted the importance of preserving trial integrity. To meet this concern, federal habeas rules should be fashioned so that all issues are fully aired in the state proceedings, thereby eliminating any inducement for the defendant or his attorney to withhold certain issues until federal habeas review to obtain a more favorable ruling from a federal court.
With these compelling considerations firmly in mind, I nonetheless must agree with Judge Ward that Klein’s conviction should be reversed. In Forman v. Smith, supra, we recognized that principles of federalism are not the sole virtues federal courts must seek to protect when deciding cases upon habeas review. We stated that a state court has an obvious interest in having its “procedures maintained without circumvention in federal courts” “[ujnless the procedure itself raises due process concerns.” 633 F.2d at 639-40 (emphasis added). In this case, the conduct challenged by Klein raises issues of the most serious constitutional dimension. The state trial judge clearly committed error of constitutional magnitude by permitting Rabinowitz to invoke his Fifth Amendment privilege against self-incrimination, thus preventing him from retracting his inculpatory statements about Klein’s actions and, in effect, demolishing the usefulness of cross-examination. He then compounded the error by failing to strike Rabinowitz’s prior testimony. See Brown v. United States, 356 U.S. 148, 154-57, 78 S.Ct. 622, 626-628, 2 L.Ed.2d 589 (1958); Dunbar v. Harris, 612 F.2d 690, 692-93 (2d Cir. 1979). It simply cannot be disputed that Rabinowitz’s testimony that Klein killed Goodman shattered Klein’s case. Rabinowitz’s purported whispered aside to Klein’s lawyer that he, and not Klein, had been actually responsible for the murder, if presented to the jury, could have struck a fatal blow to the state’s case. Moreover, I believe Judge Ward correctly concluded that Klein met the requirement of exhausting his state remedies. He presented his federal constitutional claim based on this misconduct to the trial court, and he appears to have diligently pursued all available state appellate remedies.
Accordingly, Klein’s conviction must be reversed. To hold otherwise would be to elevate the rubric of federalism to a preferred position over the constitutional right to a fair trial. Cognizant as I am of the restraint federal judges must exercise when reviewing a state court conviction, the impropriety of intercession evaporates for me in light of the seriousness of the error committed at the trial.1
. I suggest to my esteemed brother Timbers that “magna res est vocis et silentii témpora nosse.” Seneca, De Moribus. (It is a great thing to know the season for speech and the season for silence.) In Footnote 4 to his dissent, my brother Timbers queries why I have not addressed what he regards as two essential questions in my concurrence. A concurrence is not the “season for speech” on all matters. In any event, I cannot attach the seeming significance to my “silence” which Judge Timbers perceives. The response to the first question is most obvious; elaboration would be sheer redundancy. The “essential question” is not whether federal courts are more competent than state courts to pass upon the conduct of the state trial judge but whether Klein was procedurally barred from federal habeas relief as a result of any failure properly to raise his claim in state court. A lengthy response to the second question seems equally superfluous. When a question is couched, as is Judge Timbers’s, in terms of whether state or federal courts are more competent, the query seems to focus on whether a judge in one system is more qualified to decide these issues than a judge in another. Of course, that is not the relevant inquiry at all. Moreover, we must not lose sight of the fact that in this case the challenged conduct indeed happened to be a federal constitutional violation. We are charged with the responsibility of providing an appropriate forum for the fair and efficient resolution of constitutional claims. I believe further discussion is unnecessary because of the thoroughness of Judge Ward’s well-reasoned opinion.