Dissenting.
Today’s majority opinion represents the second time this Court has allowed Taylor’s conviction and death-sentence to stand despite “a paradigmatic Confrontation Clause violation.”1 This Court clearly erred in Taylor v. Commonwealth2 when it held that the trial court properly allowed the Commonwealth to introduce Taylor’s co-defendant’s statement as evidence against Taylor. The Taylor I Court’s conclusion that Wade’s statements were trustworthy and, therefore, admissible, rests upon its consideration of factors that the United States Supreme Court had rejected prior to Taylor’s trial3 and factors rejected before Taylor I became final4 as well as an analysis of statements against penal interest that the Court has subsequently discredited.5 I agree, however, with just *169one statement in the majority opinion’s analysis of this issue — but not in the sense the majority intended — “Lilly does not ... render Taylor erroneous.”6 I agree with this statement because Lilly did not make Taylor I any “more wrong” than it was already; it merely confirmed what we already knew — Taylor I was wrong the day it was rendered, it is wrong today, and it will remain wrong tomorrow.
The majority opinion makes no serious attempt to justify the holding in Taylor /, and instead “declines the invitation” to correct the error after concluding that the law of the case doctrine prevents this Court from revisiting its prior determination. Nothing could be further from the truth— this Court has repeatedly recognized that “the law of the case rule has sufficient flexibility to permit the appellate court to admit and correct an error made in the previous decision where substantial injustice might otherwise result and the former decision is clearly and palpably erroneous.” 7 Our role as Justices of this Court is not so mechanical that we must pretend the Emperor is fully clothed when he stands stark naked before us, and our predecessor Court recognized that the law of the case doctrine does not stand in the way of fundamental justice:
Notwithstanding the firmness of this rule in general, a number of courts have maintained and held that the rule is not inflexible but is subject to exception, although the exception must be rare and the former decision must appear to be clearly and palpably erroneous. In such a case it is deemed to be• the duty of the court to admit its error rather than to sanction an unjust result and “deny to litigants and ourselves the right and duty of correcting an error merely because of what we may be later convinced was merely our ipse dixit in a prior ruling in the same case.” ...
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... [T]hese cases reflect an accelerating trend to make an exception to the general rule where it clearly appears that the result of the error to be cured outweighs any harm that may be done in the particular case ....
The Court should look to the effect of its own error rather than merely acknowledge that error was committed and let it go at that. It should wipe out the effect of the mistake in the first opinion rather than perpetuate the error which would otherwise result in a great wrong to the litigant and establish a bad precedent. That is essential justice.8
*170The law of the case doctrine, unlike res judicata, “is not an inexorable command, or a constitutional requirement, but is, rather, a discretionary policy which expresses the practice of the courts generally to refuse to reopen a matter already decided, without limiting their power to do so.”9 The United States Supreme Court has emphasized that courts have the discretion to follow a prior ruling as law of the case: “The prior ruling may have been followed as the law of the case, but there is a difference between such adherence and res judicata; one directs discussion, the other supersedes it and compels judgment ... in one it is a question of power, in the other of submission.”10
While I recognize the desire “to prevent vexatiously long litigation and indefinite postponement of final judgment,”11 hopefully — surely—the majority does not value finality more importantly than ensuring a constitutionally fair trial when a human life is at stake.
In any event, “[t]he application of the rule must be viewed in the light of its purpose, and ... where extension of its effect will result in the very evil which its existence is intended to prevent ... [it] will not be applied.”12 The egregious and palpable nature of this constitutional violation virtually guarantees that a future reviewing court will grant Taylor a new trial. In fact, all recent indications suggest that this Court, when confronted on direct appeal with a co-defendant’s self-exculpatory statements which, like Wade’s, lack any “particularized guarantees of trustworthiness,” will hold that the Confrontation Clause prohibits their introduction.13 By abdicating its responsibility to correct the error in Taylor I, today’s majority needlessly prolongs this litigation and accomplishes only a hollow victory for finality. It is an unavoidable fact that, as time passes on, memories fade and witnesses become unavailable. When a future court grants Taylor a new trial, today’s majority opinion’s “legacy” will be only further evi-dentiary staleness, and justice may then succumb to a want of proof.
STUMBO, J., joins this dissenting opinion.
. Lilly v. Virginia, 527 U.S. 116 at 143, 119 S.Ct. 1887 at 1903, 144 L.Ed.2d 117 (1999) (Scalia, J. dissenting) (hereafter “Lilly ”).
. Ky., 821 S.W.2d 72, 74-76 (1990) (hereafter “Taylor I").
. See Taylor I, supra note 2 at 74-75 (addressing voluntariness of co-defendant's statement: “He was Mirandized three times ... [h]is final waiver of rights was tape-recorded, reduced to writing and signed in the presence of two police officers .’’). But see Lee v. Illinois, 476 U.S. 530, 544, 106 S.Ct. 2056, 90 L.Ed.2d 514, 528 (1986) ("Although ... the confession was found to be voluntary for Fifth Amendment purposes, such a finding does not bear on the question of whether the confession was also free from any desire, motive, or impulse [declarant] might have had either to mitigate the appearance of his own culpability by spreading the blame or to overstate [defendant’s] involvement ...(emphasis added)).
. See Taylor I, supra note 2 at 74 (“[T]he admissions against Taylor in Wade's statement were essentially consistent with ... the testimony of three other prosecution witnesses ....”); Id. at 75 ("The statement Wade gave to the police was corroborated in part by five different witnesses. Eveiy material detail of Wade’s confession was corroborated by independent testimony and physical evidence.”); Id. ("Wade's confession was corroborated in every material detail by independent testimony and physical evidence.”); Id. ("Wade was unavailable, his statement was against his own interest, and from the physical evidence, the testimony of witness [sic] and Wade’s confession, it was reliable and trustworthy." (emphasis added)); Id. at 76 ("[W]hat may be unreliable in isolation may be probative when corroborated by other evidence.”). But see Idaho v. Wright, 497 U.S. 805, 822, 110 S.Ct. 3139, 111 L.Ed.2d 638, 656-57 (1990) ("To be admissible under the Confrontation Clause, hearsay evidence used to convict a defendant must possess indicia of reliability by virtue of its inherent trustworthiness, not by reference to other evidence at trial." (emphasis added)). See also Taylor I at 81 (Leibson, J. dissenting) (noting that Taylor cited the Court to Idaho v. Wright on petition for rehearing).
.See Taylor I, supra note 2 at 75 ("[Wade’s] confession was not any less a statement against his own penal interest simply because it also implicated Taylor.... The determination of whether an out of court statement is against the declarant’s penal interest does not require an assessment of the declarant’s subjective motivation.”). But see Williamson v. United States, 512 U.S. 594, 599, 114 S.Ct. 2431, 129 L.Ed.2d 476, 482-83 (1994):
*169The fact that a person is making a broadly self-inculpatory confession does not make more credible the confession's non-self-in-culpatory parts. One of the most effective ways to lie is to mix falsehood with truth, especially truth that seems particularly persuasive because of its self-inculpatory nature.
... Self-exculpatory statements are exactly the ones which people are most likely to make even when they are false; and mere proximity to other, self-inculpatory, statements does not increase the plausibility of the self-exculpatory statements.
... The fact that a statement is self-incul-patory does make it more reliable; but the fact that a statement is collateral to a self-inculpatory statement says nothing at all about the collateral statement's reliability.
Id. (emphasis added).
. Majority Opinion at 63 S.W.3d 151, 167-168 (2001) (emphasis added).
. Gossett v. Commonwealth, Ky., 441 S.W.2d 117, 118 (1969). See also White v. Commonwealth, Ky., 360 S.W.2d 198, 202 (1962) ("[W]e consider that the law of the case rule has sufficient flexibility to permit us to admit and correct our error, particularly where substantial injustice might otherwise result.”)
. Union Light, Heat & Power Co. v. Blackwell’s Adm’r, Ky., 291 S.W.2d 539, 542-3 (1956) (emphasis added and citation omitted).
. 5 Am.Jur.2d (Appellate Review) § 605 (emphasis added).
. Southern Railway Co. v. Clift, 260 U.S. 316, 319, 43 S.Ct. 126, 67 L.Ed. 283, 284 (1922).
. Gossett v. Commonwealth, supra note 7 at 118.
. Id. at 118-119.
. See Murphy v. Commonwealth, Ky., 50 S.W.3d 173, 183-4 (2001) ("[W]hile [the] confessions may fall under the hearsay exception for declarations against penal interest, KRE 804(b)(3), such exception has yet to be de-dared ‘firmly rooted.’ Finally, we cannot conclude that the confessions have sufficient 'particularized guarantees of trustworthiness’ so as to render them admissible.” (citation omitted)).. See also Osborne v. Commonwealth, Ky., 43 S.W.3d 234, 239-241 (2001) ("Pursuant to Williamson, each statement within the broader narrative must be examined individually to determine whether it is, in fact, self-inculpatory.”). Cf. Gabow v. Commonwealth, Ky., 34 S.W.3d 63, 75-80 (2000) (finding a co-defendant's statement admissible because it was self-inculpatory and possessed numerous indications of trustworthiness not present in Taylor I).