406
Kennedy, J., dissenting
must demonstrate "that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence." Schlup v. Delo, supra, at 327, 314-315. Lee would offer the testimony of his mother, stepfather, and sister; but to this day, almost eight years after the trial, Lee has not produced a shred of tangible evidence corroborating their story that he had flown to California to attend a 4-month long birthday party at the time of the murder. To acquit, the jury would have to overlook this problem, ignore the relatives' motive to concoct an alibi for their kin, and discount the prosecution's four eyewitnesses. Even with the relatives' testimony, a reasonable juror could vote to convict.
* * *
"Flying banners of federalism, the Court's opinion actually raises storm signals of a most disquieting nature." So wrote Justice Harlan, dissenting in Henry v. Mississippi, 379 U. S., at 457. The disruption he predicted failed to spread, not because Henry's approach was sound but because in later cases the Court, heeding his admonition, refrained from following the course Henry prescribed. Though the Court disclaims reliance upon Henry, it has in fact revived that case's discredited rationale. Serious doubt is now cast upon many state procedural rules and the convictions sustained under them.
Sound principles of federalism counsel against this result. I would affirm the judgment of the Court of Appeals.
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