¶1(dissenting). Richard Harvey Shirk has been denied a fair trial, I now believe for two reasons. My original dissent sets out the first. Bruton v. United States (1968), 391 US 123 (88 S Ct 1620, 20 L Ed 2d 476) emphasizes the second. There, the United States Supreme Court decided that admission of a confession implicating a co-defendant, where the confessor then refuses to testify, denies the other defendant his constitutional right to confront the witnesses against him.
¶2My colleagues, by denying Shirk relief here because of his failure to make what, at the time of his trial, would have been a fruitless objection," are demanding of him the foresight to insist on a theory of exclusion heretofore rejected. See Delli Paoli v. United States (1957), 352 US 232 (77 S Ct 294, 1 L Ed 2d 278). Nothing indicates that Bruton had preserved the question by objecting, and in my opinion we should not deny Shirk his constitutional rights on such a thin, technical thread.
¶3I would reverse the conviction and remand the case for a new trial.