Petitioners Brief — Griffith v. Kentucky

Supreme Court brief1987

Ask Donna

What actually matters in this document.

Text

| Supreme Court, U.S. «|

‘* FILED —

\ | auc 5 1988

ac)

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1986

—

RANDALL LAMONT GRIFFITH,

Petitioner,

Vv.

COMMONWEALTH OF KENTUCKY,

Respondent.

On Writ Of Certiorari To The

Supreme Court of Kentucky

BRIEF FOR PETITIONER

JOANNE M. YANISH

Counsel of Record

Assistant Public Advocate

Department of Public Advocacy

151 Elkhorn Court

Frankfort, Kentucky 40601

(502) 564-7205

LARRY H. MARSHALL

Assistant Public Advocate

J. VINCENT APRILE II

General Counsel

Counsel for Petitioner

PRESS OF RAM PRIN1 ‘1G, HYATTSVILLE, MD 20781 (301) 864-6662

QUESTION PRESENTED

Whether the holding of Batson v. Kentucky applies to

petitioner Griffifth’s conviction which was nct yet final at

the time Batson was decided.

TABLE OF CONTENTS

Page

GuUBSTION PRBGBITED. «ooo cccccccccccccccceseceses i

» TY Ff ... ili

SS NG svc ccccceccecceceeeeesssnaee l

PURINE . 6 608 6 0nceecbecenseensenenee l

CONSTITUTIONAL PROVISIONS INVOLVED ............ l

STATEMENT OF THE CAGE... cc cccccccccccccccceess l

SUMMARY OF THE ARGUMENT .............e0eeeeee: 4

BEES o.oo 00 0000600es0060eeeense 7

a me 40

ill

TABLE OF AUTHORITIES

Page

CASES

Adams v. Illinois, 405 U.S. 278 (1972). ............... 14

Akins v. Texas, 325 U.S. 398 (1945) .................. 36

Alexander v. Louisiana, 405 U.S. 625 (1972). ....... 18, 20

Allen v. Hardy, 476 U.S. ——, 54 U.S.L.W. 3856 (June

Pitt dbeeccdsécercocescoccece passim

Arlington Heights v. Metropolitan Housing Corp., 429

TS aE a 10, 18

Avery v. Georgia, 345 U.S. 559 (1953) ................ 20

Ballard v. United States, 329 U.S. 187 (1946) ......... 24

Batson v. Kentucky, 476 U.S. —_, 106 S.Ct. 1712,

OS passim

Bloom v. Illinois, 391 U.S. 194 (1968) ................ 27

Booker v. Jabe, 775 F.2d 762 (6th Cir. 1985) ........... 35

Brown v. Louisiana, 447 U.S. 323 (1980). .... 14, 23, 26, 27

Brown v. United States, 476 U.S. ___,106 S.Ct. 2275

Ce ce wectencceses 4

Burch v. Louisiana, 441 U.S. 1380 (1979). ........... 20, 26

Carter v. Jury Commission of Green County, 396 U.S.

i cc cee erseuses 20

Carter v. Kentucky, 450 U.S. 288 (1981) .............. 16

Cassell v. Texas, 339 U.S. 282 (1950)................. 36

Casteneda v. Partida,430 U.S. 482 (1977) ............. 20

Coleman v. Alabama, 399 U.S. 1 (1970) .............. 14

Commonwealth v. Soares, 377 Mass. 461, 387 N.E.2d 499

Nee. oc ec cccccccces 35, 38

Daniel v. Louisiana, 420 U.S. 31 (1975). ........ 14, 27, 28

Desist v. United States, 394 U.S. 244 (1969)... 14, 15, 16, 17

DeStefano v. Woods, 392 U.S. 631 (1968). ........... 14 27

Duncan v. Louisiana, 391 U.S. 145 (1968). .......... 20, 27

Edwards v. Arizona, 451 U.S. 477 (1981) ............. 21

Fuller v. Alaska,393 U.S. 80 (1968) .................. 14

Griffin v. California, 380 U.S. 609 (1965) ............. 12

Gosa v. Mayden, 413 U.S. 665 (1973)..............5-. 23

Griffith v. Kentucky, 476 U.S. __, 106 S.Ct. 2274(1986) 4

Hankerson v. North Carolina, 432 U.S. 233 (1977)... 14, 22

Table of Authorities Continued

Page

Hanover Shoe, Inc. v. United Shoe Machinery Corp., 392

FF ee ere 19

Harlin v. Missouri, 489 U.S. 459 (1979) .............. 14

Hernandez v. Texas, 347 U.S. 475 (1954).............. 20

Hill v. Texas, 316 U.S. 400 (1942). ..............0005. 36

Hollins v. Oklahoma, 295 U.S. 394 (1935) ............ 20

Jenkins v. Delaware, 395 U.S. 213 (1969)............. 14

Johnson v. New Jersey, 384 U.S. 719 (1966). ..... 12, 14, 23

Jones v. Georgia, 389 U.S. 24 (1967). ..............6.4. 20

Korematsu v. United States, 323 U.S. 214 (1944) ...... 31

Linkletter v. Walker, 381 U.S. 618 (1965)........... passim

Lockhart v. McCree, 476 U.S. ___, 106 S.Ct. 1758 (1986) 30

Loving v. Virginia, 388 U.S. 1 (1967)................. 31

Mack v. Oklahoma, 459 U.S. 900 (1982) .............. 16

Mackey v. United States, 401 U.S. 667 (1971)..... 13, 14, 15

Mapp v. Ohio, 367 U.S. 643 (1961). ................. 11, 12

McCray v. Abrams, 750 F.2d 1113 (2nd Cir. 1984)...... 34

McCray v. New York, 461 U.S. 961 (1983) ............ 34

Michigan v. Payne, 412 U.S. 47 (1973) ............... 14

Michigan v. Tucker, 417 U.S. 433 (1974) .............. 14

Milton v. Wainwright, 407 U.S. 371 (1972) ............ 19

Neal v. Delaware, 103 U.S. 370 (1881). ............... 20

Norris v. Alabama, 294 U.S. 587 (1985) .............. 20

Palmore v. Sidoti, 466 U.S. 429 (1984)................ 31

Patton v. Mississippi, 332 U.S. 463 (1947) ............ 20

People v. Boone, 107 Mis. 2d 301, 433 N.Y.S.2d 955

dn otktndedneecedetebasnesecs coe: 35

People v. Kagan, 420 N.Y.S.2d 987 (N.Y.Sup.Ct. App.

ere eee 35

People v. McCray, 57 N. Y.2d 542, 457 N.T.S.2d 441, 431

N.E.2d 915 ( (i982) ieee achbe eee inh eNaie todos 35

People v. Payne, 106 Ill. App. 3d 1034, 62 Ill. Dec. 744, 436

N.E.2d 1046 (Ill. Ct. App. 1982)................. 35

People v. Thompson, 79 A.D. 87, 435 N.Y.S.2d 739 (2d

ws 4 hd cscekdadacgeesds cenkendsakae ans 35

People v. Wheeler, 22 Cal. 3d 258, 148 Cal. Rptr. 890, 583

EE ok as 605 aca neaun ba caeueuebebweeun 35

Table of Authorities Continued

Page

Peters v. Kiff, 407 U.S. 493 (1972). ............0000- 24, 25

Pierre v. Louisiana, 306 U.S. 354 (1939). ............. 20

Riley v. State, 496 A.2d 997 (Del. 1985)............... 35

Ristaino v. Ross, 424 U.S. 589 (1976). ................ 29

Robinson v. Neil, 409 U.S. 505 (1973). .............. 11, 37

Rosales-Lopez v. United States, 451 U.S. 182 (1981).... 29

Rose v. Mitchell, 443 U.S. 545 (1979). .............. 20, 31

Shea v. Louisiana, 470 U.S. ___, 105 S.Ct. 1065

RTE i re ee 9, 14, 17, 21

Solem v. Stumes, 465 U.S. 638 (1984). .............. 14, 37

State v. Brown, 371 So.2d 751 (La. 1979).............. 36

State v. Castillo, 486 So.2d 565 (Fla. 1986)............ 38

State v. Crespin, 94 N.M. 486, 612 P.2d 716 (Ct. App.

SE RE eae 35

State v. Gilmore, 299 N.J. Supr. 389, 489 A.2d 1175 (1985) 35

State v. Jones, 485 So.2d 1283 (Fla. 1986) ............. 38

State v. Neil, 457 So.2d 482 (Fla. 1984) ............... 35

Stovall v. Denno, 388 U.S. 293 (1967).............. pasgim

Strauder v. West Virginia, 100 U.S. 303 (1880).... 19, 20, 31

Swain v. Alabama, 380 U.S. 202 (1965)............ passim

Taylor v. Kentucky, 4386 U.S. 478 (1978) ...........56. 30

Taylor v. Louisiana, 419 U.S. 522 (1975). ........... 27, 28

Tehan v. United States ex rel. Shott, 382 U.S. 406

ES oe eee oka gE eeeeeeeblanneue. 12, 14

Turner v. Murray, 476 U.S. ——, 106 S.Ct. 1683

I ie ee ee ee ee ee ee ads 29, 31, 33

United States v. Childress, 715 F.2d 1313 (8th Cir. 1983) 35

United States v. Clark, 737 F.2d 679 (7th Cir. 1984).... 35

United States v. Jackson, 696 F.2d 578 (8th Cir. 1982). 35, 36

United States v. Johnson, 457 U.S. 537 (1982)...... passim

United States v. McDaniels, 379 F.Supp. 1243 (E.D.La.

Oe ot cael Deel nae See ia 35

United States v. Newman, 549 F.2d 240 (2nd Cir. 1977). 35

United States v. Peltier, 422 U.S. 531 (1975)........... 14

United States v. Schooner Peggy, 5 U.S. 103 (1801)..... 13

United States v. Whitfield, 715 F.2d 145 (4th Cir. 1983). 35

Table of Authorities Continued

Page

Vasquez v. Hillery, 474 U.S. ——, 106 S.Ct. 617

CN oo 6 oe er es in ol i eh en soe 20, 31, 32

Von Cleef v. New Jersey, 395 U.S. 814 (1969).......... 14

Washington v. Davis, 426 U.S. 229 (1976)............. 18

Wheathersby v. Morris, 708 F.2d 1493 (9th Cir. 1983)... 35

Whisman v. Georgia, 384 U.S. 895 (1966)............. 14

Whitus v. Georgia, 385 U.S. 545 (1967) ............... 20

Williams v. Florida, 399 U.S. 78 (1970). .............. 24

Williams v. Illinois, 466 U.S. 981 (1984).............. 36

Williams v. United States, 401 U.S. 646 (1971)....... 14,17

Willis v. Zant, 720 F.2d 1212 (11th Cir. 1983).......... 35

Yick Wo v. Hopkins, 118 U.S. 356 (1886). ............. 31

CONSTITUTIONAL PROVISIONS

Fourteenth Amendment. ...................2000- passim

Te oe cenvesnbeese 21

a a re eS 21

ee ice cate sccaneekeneeuenses passim

STATUTES AND RULES

i l

I 1

De i a ee ed eins l

ESR ae es ne 33

CSE ee A, en ae a 33

no eo acaba l

I a ls 3

RE ep a Er nO RN 3

EET 33

OTHER AUTHORITIES

Adler, Socioeconomic Factors Influencing Jury Verdicts,

3 .N.Y.U. Rev.L. & Soc. Change 1-10 (1973)....... 25

Bernard, Interaction Between the Race of the Defendant

and That of Jurors in Determining Verdicts, 5 L. &

Payen. Rev. 106, 107-06 (1979)... 0. cccccccccess 25

Vii

Table of Authorities Continued

Broeder, The Negro in Court, 1965 Duke L.J. 19-22....

Brown, McGuire, and Winters, The Peremptory Chal-

lenge as a Manipulative Device in Criminal Trials,

Traditional Use or Abuse?, 14 New Eng.L. Rev. 192

DT cttcdd > KSucnenenEseeetoateatecarucees<s

Comment, A Case Study of the Peremptory Challenge: A

Subtle Strike at Equal Protection and Due Process,

18 St. Louis U.L.d. G2 (1974)... cece ccc cececes

Davis and Lyles, Black Jurors, 30 Guild Practitioner 111

es ee ee ie i ee a

Gerard & Terry, Discrimination Against Negroes in the

Administration of Criminal Law in Missoun, 1970

i ME Ec os ceveceensusescecccces

Ginger, What Can Be Done to Minimize Discrimination

in Jury Trials?, 20 J.Pub.L. 427 (1971) ...........

Gleason & Harris, Race, Socio-Economic Status, and

Perceived Similarity as Determinants of Judgments

by Simulated Jurors, 3 Soc. Behav. & Personality

GL cde cvushegunneenssdebebreueees

a H. Zeisel, The American Jury 196-98, 210-13

FT TT TT eee TTT eT Trey

—. Megas & Benson, Sex and Race as Factors

ffecting the Attribution of Insanity in a Murder

ME, Ta ME, DE CU FEPe oc ccccccccccccccccecs

Rhine, The Jury: A Reflection of the Prejudices of the

Community in Justice on Trial 41 (D. Douglas & P.

EE decide dudnsdencaneceseunéees

Simon, The Jury and the Defense of Insanity 111 (1977)

Ugwuegbu, Racial and Evidential Factors in Juror

Attribution of Legal Responsibility, 15 J. Experi-

mental Soc. Psych. 133, 143-44 (1979) ............

Van Dyke, Jury Selection Procedures: Our Uncertain

Commitment to Representatives Panels 33-35,

ince cugebedesésenbieeeeéobeucnees

Page

OPINIONS BELOW

The Supreme Court of Kentucky affirmed the Judg-

ment entered against petitioner in an unpublished opinion

rendered on June 13, 1985 (Appendix, hereafter A 17). No

written opinion was filed with the circuit court judgment

of conviction entered on May 21, 1984.

GROUNDS OF JURISDICTION

The jurisdiction of the Court is invoked pursuant to 28

USC § 1257(3). The Supreme Court of Kentucky affirmed

petitioner's conviction in an unpublished opinion rendered

on June 13, 1985. The Petition for Writ of Certiorari was

filed on August 9, 1985, within the time set by Rule 20.1 of

the Rules of the Supreme Court. The Pettion for Writ of

Certiorari was granted on June, 2 1986.

CONSTITUTIONAL PROVISION INVOLVED

Fourteenth Amendment, Section One

All persons born or naturalized in the United States,

and subject to the jurisdiction thereof, are citizens of the

United States and of the State wherein they reside. No

State shall make or enforce any law which shall abridge

the privileges or immunities of citizens of the United

States; nor shall any State deprive any person of life,

liberty, or property, without due process of law; nor deny

to any person within its jurisdiction the equal protection

of the laws.

STATEMENT OF THE CASE AND PROCEDURAL HISTORY

Petitioner, Randall Lamont Griffith, was indicted on

September 27, 1982, for the offenses of first degree rob-

bery, theft by unlawful taking, and persistent felony

offender in the second degree in violation of Kentucky

Revised Statutes (KRS) 515.020, KRS 514.030, and KRS

532.080, respectively (Transcript of Record, hereafter TR

1; A2-3). The indictment charged that petitioner had com-

mitted robbery by “threatening the use of physical force

upon Ms. Collett Ruhl while armed with an ice pick, a

dangerous weapon” on or about September 8, 1982 (TR 1;

A2). The object of the theft was a purse belonging to

Deborah Barnett, a companion of Ms. Ruhl (later called

Weist). (Transcript of Evidence, Volume I, hereafter TE I

37, 44-45).

In support of the robbery charge, the prosecution intro-

duced Collett Weist who testified that on September 8,

1982, she and Deborah Barnett stopped on Poplar Level

Road near the Magic Mart in Louisville, Kentucky to use

the telephone at the phone booth (TE I 36-65). Ms. Bar-

nett asked Ms. Wiest to bring her purse from the car,

which she did (TE I 43). Ms. Barnett got her cigarettes

from her purse and tossed the purse to the hood of the car

where Ms. Wiest was sitting (/d.). While Ms. Wiest was

sitting on the hood of the car, a black male between 5’5”

and 5'7” and 150 pounds, with a short afro, walked up to

Ms. Barnett, put his hand on the purse, held a knife up to

Ms. Wiest, and picked up the purse (TE I 44-45). He then

put the purse under his arm and walked back to the

apartment behind him (TE I 46). Ms. Barnett testified

similarly. Both women identified petitioner from a photo-

pack.

Ste ie Kittrell testified she was on her way to the

store when she saw a man draw a knife and grab a lady’s

purse (TE II 134). She made an in-court identification of

petitioner (TE II 136).

Based on the evidence, the jury returned a verdict of

guilty on the charge of first degree robbery and recom-

mended a punishment of ten (10) years, a minimum sen-

tence (TE II 247-248). The punishment was enhanced by

the jury, pursuant to Kentucky’s Persistent Felon statute,

to a total of twenty (20) years (TR 137-138; A 7-8).

Concerning the error complained of here, a jury panel

was presented for examination and, in accordance with

Kentucky practice, each party was allowed to exercise

peremptory challenges. [Kentucky Rules of Criminal Pro-

cedure (RCr) 9.36(2),(3)]. (TR 94-96). Under the rules of

court in Kentucky, the prosecutor was allowed five

peremptory challenges and one extra peremptory due to

the calling of extra jurors for examination. RCr 9.40(1),

(2). The prosecutor used his peremptory challenges to

strike four black jurors (Supplemental Transcript of Evi-

dence, hereafter STE 38; A12-13).! Following the pros-

ecutor’s strikes, one black juror remained (STE 41; Al5).

However, after random selection by the Clerk pursuant to

Kentucky’s rules of court, RCr 9.36, no blacks remained

on the panel (STE 41; A 15). As defense counsel, Leo

Smith, argued, the result was that:

. . . [The] defendant in this case is black afid the two

alleged victims are white, they are not black. There

are no blacks sitting on this jury. . . (STE 41; A 15).

Defense counsel moved the trial court to require the

prosecutor, Joseph Guttman,” to state his reasons for

exercising his peremptories for the record (STE 35, 36,

40, 41; A 10, 11, 14, 15). Mr. Smith also moved for dis-

charge of the panel on the basis of a violation of his client’s

constitutional right to a jury made up of a fair cross

section of the community (STE 38, 40; A 13, 15). Both

! One of those four black panel members had also been struck by

the defense (STE 38; TR 94).

2Mr. Gutmann is the same Assistant Commonwealth Attorney

who prosecuted the case of Batson v. Kentucky.

defense motions were overruled (STE 40, 42; A 14, 16).

The jury was then sworn for service on Mr. Griffith’s case

(TE I 35).

A timely appeal was taken as a matter of right to the

Supreme Court of Kentucky (TR 142; A 8). In an

unpublished opinion rendered on June 13, 1985, the

Supreme Court of Kentucky rejected petitioner's argu-

ment, based on both the Sixth Amendment and equal

protection grounds, and held that “Swain disposes of this

issue and we decline to go further than the Swain Court”

(A 18). The judgment of the circuit court was affirmed

(Id.).

On August 9, 1985, petitioner filed his petition for writ

of certiorari. Batson v. Kentucky was decided by this

Court on April 30, 1986. Petitioner's writ was granted on

June 2, 1986, on the following question:

“In cases pending on direct appeal, should the hold-

ing in Batson v. Kentucky, ___ U.S. —__, 106 S.Ct.

1712, 89 L.Ed.2d ___. (1986), be given retroactive

effect?” Griffith v. Kentucky, 476 U.S. —_, 106 S.Ct.

2274, 2275 (1986).

This Court set petitioner's case for oral argument in

tandem with Brown v. United States, 476 U.S. ___., 106

S.Ct. 2275 (1986). Griffith, supra.

SUMMARY OF ARGUMENT

This case presents the question left unanswered by the

recent decision of Allen v. Hardy, 476 U.S. —__, 54

U.S.L. W. 3856 (1986). Petitioner Griffith’s conviction was

on direct appeal to this Court on a petition for writ of

certiorari when this Court announced the decision in Bat-

son v. Kentucky, 476 U.S. —__, 106 S.Ct. 1712 (1986).

Allen held that Batson is not to be applied retroactively to

cases on collateral review. Petitioner submits that for the

reasons discussed herein, limited retrospective applica-

tion is mandated.

First, since petitioner's case was pending on direct

appeal at the time Batson was decided, petitioner should

be afforded the benefit of the Batson rule without regard

to the Stovall criteria or to whether Batson constituted a

“clear break” in the law. Such a ruling would: a) allow this

Court to avoid being in position of a super-legislature; b)

would comply with the constitutional norm of principled

decision-making; c) would comport with this Court's judi-

cial responsibility to do justice to each litigant on the

merits of his own case and d) would further the goal of

treating similarly situated defendants similarly.

Second, Batson constituted no “clear break” in the law

since Batson announced no new constitutional principle of

law. Rather, Batson reaffirmed the principle in Swain v.

Alabama, 380 U.S. 202, 203-204 (1965), that a “State's

purposeful or deliberate denial to Negroes on account of

race of participation as jurors in the administration of

justice violates the Equal Protection Clause.”

Batson departed from Swain only on the question of the

standard of proof required of a defendant to establish

purposeful discrimination by the prosecution in its exer-

cise of peremptory challenges against minority persons.

However, in adopting its evidentiary standard, Batson

merely applied the established principles of post-Swain

cases on proof of purposeful discrimination in a particular

case to a new set of facts, that is, use of peremptory

challenges in choosing a jury.

Batson did not disapprove any practice this Court had

arguably sanctioned by prior cases. This Court had spe-

cifically disapproved of the use of peremptory challenges

on the basis of race in Swain as well as cases predating and

post-dating Swain.

An analysis of the Stovall criteria in petitioner's case

supports limited retrospectivity to cases not yet final.

First, because the integrity of the truth-finding process is

significantly enhanced by the holding of Batson, limited

retroactivity is mandated. Second, reliance is not an

appropriate consideration with respect to the Batson

holding since any reliance by prosecutors cannot have

been justified. Swain did not countenance striking jurors

on the basis of race. Any reliance on Swain by prosecutors

striking jurors on the basis of race was not justifiable.

Moreover, due to an abundance of criticism of the evidenti-

ary standard of Swain, the Batson holding concerning

standard of proof was foreseeable.

Finally, the effect on the administration of criminal

justice of a retrospective application of Batson to cases

pending on direct appeal would be minimal. The number

of cases on direct review pales in comparison with those

on collateral review. Moreover many state and federal

jurisdictions had already adopted alternative standards,

reducing the number of cases affected by Batson further.

The burden on prosecutors will also be minimal since

Swain obligated prosecutors to keep information on

stricken jurors in order to meet a challenge under Swain.

All factors considered, this Court should hold that Bat-

son applies to convictions that were not yet final when

Batson was decided.

ARGUMENT

THE UNITED STATES SUPREME COURT'S DECISION IN

BATSON V. KENTUCKY, 476 U.S. —__., 106 S.Ct. 1712 (1986),

SHOULD BE APPLIED RETROACTIVELY TO PETI-

TIONER’S CASE WHICH WAS NOT YET FINAL* AT THE

TIME BATSON WAS DECIDED.

A. Batson v. Kentucky, A Progeny of Swain v. Alabama

Batson v. Kentucky, 476 U.S. ——, 106 S.Ct. 1712

(1986), involved facts strikingly similar to those in the

present case. In Batson, during the criminal trial of a

black man, the prosecutor used his peremptory chal-

lenges to strike all four black persons on the venire. An

all-white jury was then selected despite the defense

motion to discharge the jury panel based upon Sixth and

Fourteenth Amendment violations. The defense request

for a hearing was also denied.

In Batson, this Court reaffirmed the principle in Swain

v. Alabama, 380 U.S. 202 (1965), that a “State’s pur-

poseful or deliberate denial to Negroes on account of race

of participation as jurors in the administration of justice

violates the Equal Protection Clause.” Batson, 106 S.Ct.,

at 1716, citing Swain, 380 U.S., at 203-204. This Court

recognized that “[(t Jhis principle has been consistently and

repeatedly reaffirmed, . . . in numerous decisions of this

Court both preceding and following Swain.” Batson, 106

S.Ct., at 1716.

3 “*By final . . . [is meant] where the judgment of conviction was

rendered, the availability of appeal exhausted, and the time for

petition for certiorari had elapsed before [the] decision in’ Batson v.

Kentucky.” Allen v. Hardy, 476 U.S. , 54 U.S.L.W. 3856, n.1

(June 30, 1986), quoting from Linkletter v. Walker, 381 U.S. 618, 622,

n.5 (1965).

Batson departed from Swain only on the question of

defendant's standard of proof of an equal protection viola-

tion in the context of peremptory challenges. Allen, 54

U.S.L.W., at 3857. In Swain, this Court held that since

the presumption in any case is that the prosecutor is using

the State’s peremptories to obtain a fair and impartial

jury, this presumption is not overcome by allegations that

in a case at hand all blacks were removed from the jury.

Id., 380 U.S., at 222. Swain went on to state that it was

impermissible for a prosecutor to use his or her challenges

to exclude blacks from the jury “for reasons wholly unre-

lated to the outcome of the particular case on trial” or to

deny to blacks “the same right and opportunity to partici-

pate in the administration of justice enjoyed by the white

population.” /d., at 224. Thus, under Swain a black

defendant could establish a prima facie case of purposeful

disrcimination through proof that the peremptory chal-

lenge system was “being perverted” in that manner. /bid.

Swain suggests that an inference of discrimination could

be raised “when the prosecutor in a county, in case after

case, whatever the circumstances, whatever the crime

and whoever the defendant or the victim may be, is

responsible for the removal of Negroes who have been

selected as qualified jurors by the jury commissioners and

who have survived challenges for cause, with the result

that no Negroes ever serve on petit juries.” Jd., at 223.

To the extent that lower courts had interpreted Swain

to require proof of repeated striking of blacks over a

number of cases to establish a violation of the Equal

Protection Clause, Batson rejected this evidentiary for-

mula for proof of discrimination “as inconsistent with

standards that have developed since Swain for assessing a

prima facie case under the Equal Protection Clause.”

Batson, 106 S.Ct., at 1721. This Court in Batson acknowl-

edged that “since the decision in Swain, this Court has

recognized that a defendant may make a prima facie show-

ing of purposeful racial discrimination in selection of the

venire by relying solely on the facts concerning its selec-

tion in his case.” Batson, 106 S.Ct., at 1722; (emphasis in

original).

Specifically addressing the issue of proof in a case of

purposeful discrimination involving the use of perempto-

ries, this Court held:

[A] defendant may establish a prima facie case of

urposeful discrimination in selection of the petit

jury solely on evidence concerning the prosecutor's

exercise of peremptory challenges at the defendant's

trial. To establish such a case, the defendant first

must show that he is a member of a cognizable racial

group, [citation omitted], and that the prosecutor has

exercised peremptory challenges to remove from the

venire members of the defendant’s race. Second, the

defendant is entitled to rely on the fact, as to which

there can be no dispute, that peremptory challenges

constitute a jury selection practice that permits

“those to discriminate who are of a mind to discrimi-

nate.” [Citation omitted]. Finally, the defendant

must show that these facts and any other relevant

circumstances raise an inference that the prosecutor

used that practice to exclude the veniremen from the

petit jury on account of their race. This combination

of factors in the empanelling of the petit jury, as in

the selection of the venire, raises the necessary

inference of purposeful discrimination. /d., at

1722-1723.

Since Batson merely reiterated the long-standing con-

stitutional principle of Swain, Batson represented no

clear break in the law. As recently stated by this Court in

Shea v. Louisiana, 470 U.S. ——, 105 S.Ct. 1065, 1069

(1985), unless a constitutional rule “is so clearly a break

with the past that prior precedents mandate nonretroac-

tivity, ... [the] new .. . rule is to be applied to cases

pending on direct review when the rule was adopted.” In

United States v. Johnson, 457 U.S. 537, 551 (1982), a clear

break case is described as one in which this Court “disap-

proves a practice this Court arguably has sanctioned in

prior cases.”

Applying these definitions to Batson, it is clear Batson

did not come within a “clear break” exception for retroac-

tivity. Batson established no new principle of constitu-

tional law but reiterated the long-standing prohibition

against the practice of racial discrimination in jury selec-

tion.

The standard of proof adopted in Batson, while it dif-

fered from the standard discussed in Swain, was well-

grounded in long-standing precedents of this Court on

proof of purposeful discrimination. This Court in Batson

specifically recognized this, stating:

These decisions are in accordance with the proposi-

tion, articulated in Arlington Heights v. Metro-

politan Housing Corp. [429 U.S. 252 (1977)], that “a

consistent pattern of official racial discrimination” is

not “a necessary predicate to a violation of the Equal

Protection Clause. A single invidiously discrimi-

natory governmental act” is not “immunized by the

absence of such discrimination in the making of other

comparable decisions. [Citation omitted]. Jd., 106

S.Ct., at 1722.

Petitioner comes before this Court on the same issue

recently decided in Batson. In his case, the same pros-

ecutor in the Jefferson Circuit Court who prosecuted

Batson, struck four of five black veniremen, using four of

his six peremptory challenges. The prosecutor declined to

give reasons for his exercise of the strikes despite a

defense motion. The remaining black juror was randomly

selected by the clerk for exclusion from the jury. Thus, no

blacks sat on petitioner's jury. Based on these facts, peti-

tioner is clearly entitled to relief under the holding of

Batson. The only issue to examine, thus, is whether Bat-

son is to be applied retroactively to petitioner's case which

was pending on direct appeal at the time Batson was

decided.4

B. An Overriding Criterion For Determining Retroactivity

Is Whether The Case Presently Before This Court Is On

Direct Appeal or Under Collateral Review.

This Court has distinguished between cases arising on

direct appeal or under collateral review when considering

whether a constitutional ruling is to be given retroactive

effect or not. Prior to 1965 this consideration was insig-

nificant since until then, a general rule of retrospective

application to all cases prevailed for constitutional deci-

sions of the Court. In Linkletter v. Walker, 381 U.S. 618

(1965), this Court held for the first time that a newly

adopted constitutional ruling need not be given full retro-

active application. Prior to Linkletter, “both the common

law and ... [this Court’s] own decisions recognized a

general rule of retrospective effect for the constitutional

decisions of this Court . . . subject to [certain] limited

exceptions.” United States v. Johnson, 457 U.S., at 542,

citing Robinson v. Neil, 409 U.S. 505, 507 (1973).

In Linkletter, this Court addressed the question of

whether the exclusionary rule of Mapp v. Ohio, 367 U.S.

643 (1961), should apply to state convictions which had

become final before the Mapp decision. This Court

4 Griffith was pending before this Court on his writ for petition of

certiorari at the time Batson was handed down.

acknowledged in the beginning of Linkletter that cases

pending on direct review when Mapp was decided had

already received the benefit of Mapp’s rule. Linkletter,

381 U.S., at 622, n.4.

Employing the test of “weigh[ing] the merits and

demerits in each case by looking to the prior history of the

rule in question, its purpose and effect, and whether

retrospective operation will further or retard its opera-

tion,” /d., 381 U.S., at 629, this Court concluded the

Mapp rule should not apply to convictions that had

become final before the Mapp decision.

In Tehan v. United States ex. rel. Shott, 382 U.S. 406

(1966), this Court also determined, after applying the

Linkletter test, that the rule of Griffin v. California, 380

U.S. 609 (1965) (prohibiting comment on a state defend-

ant’s failure to testify) was nonretroactive to convictions

final before the Griffin decision. This Court again con-

firmed that there was “no question of the applicability of

the Griffin rule to cases still pending on direct review at

the time it was announced.” Tehan, 382 U.S., at 409.

In Johnson v. New Jersey, 384 U.S. 719 (1966), and

Stovall v. Denno, 388 U.S. 293 (1967), this Court

departed from this basic tenet and held that this Court

could, in the interest of justice, balance three factors to

determine whether a “new” constitutional rule should

apply retrospectively or prospectively:

a) the purpose to be served by the new standards;

b) the exent of the reliance by law enforcement

authorities on the old standards; and

c) the effect on the administration of justice of a

retroactive application of the new standards.

Stovall, 388 U.S., at 297.

In the interim between Stovall and United States v.

Johnson, the retroactivity determinations often varied

from case to case as this Court applied the Stovall balanc-

ing process. “Because the balance of the three Stovall

factors inevitably has shifted from case to case, it is

hardly surprising that, for some, the subsequent course of

Linkletter became almost as difficult to follow as the

tracks made by the beast of prey in search of its intended

victim.” United States v. Johnson, 457 U.S., at 544, citing

Mackey v. United States, 401 U.S. 667, 676 (1971) (sepa-

rate opinion of Harlan, J.).

The basis for distinction between cases on direct appeal

and those on collateral review in retroactivity determina-

tions is found as early as 1801 in United States v. Schooner

Peggy, 5 U.S. 103, 110 (1801), where Chief Justice Mar-

shall wrote:

It is the general rule that the province of an appellate

court is only to inquire whether a judgment when

rendered was erroneous or not. But if, subsequent to

the judgment, and before the decision of the appel-

late court, a law intervenes and positively changes

the rule which governs, the law must be obeyed or its

obligation denied . . . [And] where individual rights

. . . are sacrificed for national purposes. . . the court

must decide according to existing laws, and if it be

necessary to set aside a judgment, rightful when

rendered, but which cannot be affirmed but in viola-

tion of law, the judgment must be set aside.

“In a consistent stream of separate opinions since Link-

letter, Members of this Court have argued against selec-

tive awards of retroactivity. Those opinions uniformly

have asserted that, at a minimum, all defendants whose

cases were still pending on direct appeal at the time of the

law-changing decision should be entitled to invoke the

new rule.” United States v. Johnson, 457 U.S., at 545.5

5See, e.g., Brown v. Louisiana, 447 U.S. 323, 337 (1980)

(POWELL, J., with whom STEVENS, J., joined, concurring in

judgement); Harlin v. Missouri, 439 U.S. 459, 460 (1979) (POWELL,

J., concurring in judgments); Hankerson v. North Carolin~, 432

U.S. 233, 245 (1977) (MARSHALL, J., concurring in judgment); id.

at 246, (POWELL, J., concurring in judgment); United States v.

Peltier, 422 U.S. 531, 543 (1975) (Douglas, J., dissenting); Daniel v.

Louisiana, 420 U.S. 31, 33 and n. (1975) (Douglas, J., dissenting);

Michigan v. Tucker, 417 U.S. 433, 461 (1974) (Douglas, J., dissenting);

Michigan v. Payne, 412 U.S. 47, 58 (1973) (Douglas, J., dissenting);

id., at 59, (MARSHALL, J., dissenting); Adams v. Illinois, 405 U.S.

278, 286 (1972) (Douglas J., with whom MARSHALL, J., concurred,

dissenting); Mackey v. United States, 401 U.S. 667, 675 (1971) (sepa-

rate opinion of Harlan, J.); id., at 713 (Douglas, J., with whom Black,

J., concurred, dissenting); Williams v. United States, 401 U.S. 646,

665 (1971) (MARSHALL, J., concurring in part and dissenting in

part); Coleman v. Alabama, 399 U.S. 1, 19 (1970) (Harlan, J., con-

curring in part and dissenting in part); Von Cleef v. New Jersey, 395

U.S. 814, 817 (1969) (Harlan, J., concurring in result); Jenkins v.

Delaware, 395 U.S. 213, 222 (1969) (Harlan, J., dissenting); Desist v.

United States, 394 U.S. 244, 255 (1969) (Douglas, J., dissenting); id.,

at 256 (Harlan, J., dissenting); id., at 269 (Fortas, J., dissenting);

Fuller v. Alaska, 393 U.S. 80, 82 (1968) (Douglas, J., dissenting);

DeStefano v. Woods, 392 U.S. 631, 635 (1968) (Douglas J., with whom

Black, J., joined, dissenting); Stovall v. Denno, 388 U.S. 293, 302

(1967) (Douglas, J., dissenting); id., at 303 (Black, J., dissenting);

Johnson v. New Jersey, 384 U.S. 719, 736 (1966) (Black, J., with whom

Douglas, J., joined, dissenting); Whisman v. Georgia, 384 U.S. 895

(1966) (Douglas, J., dissenting); Tehan v. United States ex rel. Shott,

382 U.S. 406, at 419 (Black, J., with whom Douglas, J., joined,

dissenting); Linkletter v. Walker, 381 U.S. 618, 640 (Black, J., with

whom Douglas, J., joined, dissenting). Citations from United States

v. Johnson, 457 U.S. at 545-546, n.9. See e.g., Solem v. Stumes, 465

U.S. 638, 651 (1984) (POWELL, J., concurring); Shea v. Louisiana,

470 U.S. ___., 105 S.Ct. 1065, 1074 (1985) (REHNQUIST, J., dissent-

ing).

As this Court recognized in United States v. Johnson,

Justice Harlan delineated three norms of constitutional

ajudication violated by this Court’s failure to apply new

constitutional rules to cases pending on direct appeal at

the time of the constitutional decision in his well

renowned opinions in Desist v. United States, 394 U.S.

244, 256 (1969) (dissenting opinion), and Mackey v.

United States, 401 U.S. 667, 675 (1971) (separate opin-

ion). First, Justice Harlan argued t.us Court’s

“ambulatory retroactivity doctrine” crt this Court loose

from the force of precedent, “mitigat{ing] the practical

force of stare decisis.” Mackey, 401 U.S., at 681.

Second, Justice Harlan accurately characterized the

basic unfairness of applying a new constitutional rule to

one litigant before this Court while failing to apply it to

other litigants with cases pending on direct appeal at the

time of the rule’s adoption, placing this Court in the role of

super-legislature:

We announce new constitutional rules, then, only asa

correlative of our dual duty to decide those cases over

which we have jurisdiction and to apply the Federal

Constitution as one source of the matrix of governin

legal rules. We cannot release criminals from jal

merely because we think one case is a particularly

appropriate one in which to apply what reads like a

— rule of law or in order to avoid making new

egal norms through promulgation of dicta. This

serious interference with the corrective process is

justified only by necessity, as part of our task of

applying the Constitution to cases before us. Simply

fishing one case from the stream of appellate review,

using it as a vehicle for pronouncing new constitu-

tional standards, and then permitting a stream of

similar cases subsequently to flow by unaffected by

that new rule constitute an indefensible departure

a oa model of judicial review. Mackey, 401 U.S..,

at .

Finally, Justice Harlan argued that choosing one liti-

gant over others with cases pending on direct review

departed from the principle of treating similarly situated

defendants similarly:

([WJhen another similarly situated defendant comes

before us, we must grant the same relief or give a

— led reason for acting differently. We depart

m this basic judicial tradition when we simply pick

and choose from among similarly situated defendants

those who alone will receive the benefit of a “new”

rule of constitutional law. Desist v. United States, 394

U.S., at 258-259.

Petitioner subinits he should receive the benefit of the

Batson ruling because his case was pending direct review

at the time of the ruling without regard to the balancing

test of Stovall or to whether Batson represented a clear

break with the law. Petitioner respectfully submits that

this Court should adopt the position of Justice Harlan and

so rule. See Mack v. Oklahoma, 459 U.S. 900 (1982),

where the case was remanded per curiam in the light of

United States v. Johnson. The Mack case involved the

failure of the trial court to give a requested instruction on

a defendant's failure to testify. Mack’s case was pending on

direct appeal when Carter v. Kentucky, 450 U.S. 288

(1981) was decided. Mack, 459 U.S., at 901 (dissenting

opinion).

A failure to grant relief to petitioner would indeed

reflect simply fishing one case from the stream of appel-

late review and then permitting a stream of similar cases

subsequently to flow by unaffected by that new rule.

Petitioner was prosecuted by the same prosecutor as was

Batson. That prosecutor used the same unconstitutional

practice in this case as he did in Batson. Both cases came

from the same circuit court, albeit different divisions. A

denial of relief to petitioner would indeed be an ironical

denial of relief to a “similarly situated defendant.”

To apply Batson to all cases pending on direct review

“(a) would provide a principle of decision-making con-

sonant with the Court’s original understanding in Link-

letter v. Walker, (citation omitted] and Tehan v. United

States ex rel. Shott [citation omitted], (b) would comport

with this Court’s judicial responsibility to do justice to

each litigant on the merits of his own case, and (c) would

further the goal of treating similarly situated defendants

similarly.” Shea, 105 S.Ct.,1069 (1985), discussing the

holding of United States v. Johnson, supra.

C. The Holdings Of United States v. Johnson And Shea v.

Louisiana Both Dictate Batson Should Be Applied to

Petitioner's Case.

In United States v. Johnson, this Court recognized a

threshold test for a retrospectivity determination. “First,

when a decision of this Court merely has applied settled

precedents to new and different factual situations, no real

question has arisen as to whether the later decision

should apply retrospectively.” Jd., 457 U.S., at 549.

“Converserly, where the Court has expressly declared

a rule of criminal procedure to be ‘a clear break with the

past,’ Desist v. United States, (citation omitted] it almost

invariably has gone on to find such a newly minted princi-

ple nonretroactive.” United States v. Johnson, supra. “In

this second type of case, the traits of the particular consti-

tutional rule have been less critical than the Court’s

express threshold determination that the ‘new’ constitu-

tional interpretatio[n] . . . so change[s] the law that pro-

spectivity is arguably the proper course.” /d., citing

Williams v. United States, 401 U.S. 646 (1971).

“Third, the Court has recognized full retroactivity as a

necessary adjunct to a ruling that a trial court lacked

authority to convict or punish a criminal defendant in the

first place.” United States v. Johnson, 457 U.S., at 550.

Petitioner's case fits most readily into the first of these

categories. While Batson may not have applied settled

principles to a new set of facts when the focus is only on

Swain, it did so in light of the post-Swain decisions relied

upon in Batson. It is true that the principle of Batson

reaffirmed the constitutional principle of Swain that a

state’s purposeful or deliberate denial to blacks of par-

ticipation as jurors on account of race violates the Equal

Protection Clause. As mentioned earlier, however,. the

evidentiary principle of Batson was contained in the

post-Swain decisions discussed at length in Batson,

namely, that “‘{a] single invidiously discriminatory gov-

ernmental act’ is not ‘immunized by the absence of such

discrimination in the making of other comprable deci-

sions.’” Jd., 106S.Ct., at 1722 quoting Arlington Heights,

429 U.S., at 266 n.14. As the Court noted, it is also well

established that if a party makes out “a prima facie case of

purposeful discrimination by showing that the totality of

the facts give rise to an inference of discrimination,” the

burden shifts to the State to explain the exclusions. Bat-

son, 106 S.Ct., at 1721, quoting Washington v. Davis, 426

U.S. 229, 239-42 (1976), citing Alexander v. Louisiana,

405 U.S. 625, 632 (1972).

Batson applied settled constitutional principles to a

new set of facts, that is, the area of peremptory chal-

lenges. Therefore, Batson should be applied retroactively

to cases on direct appeal.

On the other hand, Batson “did not announce an

entirely new and unanticipated principle of law. In gen-

eral, this Court has not subsequently read a decision to

work a ‘sharp break in the web of the law,’ Milton v. Wain-

wright, 407 U.S. 371, 381, n.2, (1972) (Stewart, J., dis-

senting), unless that ruling caused ‘such an abrupt and

fundamental shift in doctrine as to constitute an entirely

new rule which in effect replaced an older one.’” United

States v. Johnson, 457 U.S. at 551, citing Hanover Shoe,

Inc. v. United Shoe Machinery Corp., 392 U.S. 481

(1968). United States v. Johnson gives the following

description of such a “clear break”:

Such a break has been recognized only when a deci-

sion explicitly overrules a past precedent of this

Court, [citations omitted] or disapproves a practice

this Court arguably has sanctioned in prior cases

[citations omitted], or overturns a longstanding and

widespread practice to which this Court has not spo-

ken, but which a near-unanimous body of lower court

authority has expressly approved. [Citations omit-

ted.] Jd., at 551.

Batson did none of these. Batson expressly overruled

no clear past precedent of this Court. Batson expressly

reaffirmed the principle of Swain declaring a state's pur-

poseful denial to blacks of participation as jurors on

account of race an Equal Protection violation. This princi-

ple was certainly not new, as both Swain and Batson

recognized the principle dated back to more than a cen-

tury ago when the Court held in Strauder v. West Vir-

ginia, 100 U.S. 303 (1880), that the state denies a black

defendant equal protection when it puts him on trial

before a jury from which members of his race have been

purposefully excluded.

The only point on which Batson departed from Swain

was on the standard of proof required for a prima facie

case of purposeful discrimination in the context of the

state's use of peremptories to strike black jurors at a black

defendant's trial. Thus, Batson did not overrule any con-

stitutional principle of Swain but merely established a

different evidentiary standard which was based on long-

standing precedents since Swain.

Nor did Batson disapprove a practice this Court argua-

bly has sanctioned in prior cases. Far from it. The pros-

ecution’s practice of striking all blacks from the jury based

on race was specifically disapproved of in Swain, as well

as cases predating and post-dating Swain.®

Finally, it is equally plain Batson does not fall into the

third category of cases posing no problem of retroactivity.

Batson did not hold that the trial court lacked authority to

convict or punish James Batson in the first place. Nor did

this Court's reading of the Fourteenth Amendment immu-

nize Batson from punishment. The holding in Batson

reversed the Kentucky Supreme Court's decision and

remanded for further proceedings.

In United States v. Johnson this Court, after con-

cluding that Johnson's case did not fall into any of the three

8 See, e.g., Strauder v. West Virginia, 100 U.S. 308 (1880); Neal v.

Delaware, 103 U.S. 370 (1881); Norris v. Alabama, 294 U.S. 587

(1935); Hollins v. Oklahoma, 295 U.S. 394 (1935) (per curiam); Pierre

v. Louisiana, 306 U.S. 354 (1989); Patton v. Mississippi, 332 U.S. 463

(1947); Avery v. Georgia, 345 U.S. 559 (1953); Hernandez v. Texas,

347 U.S. 475 (1954); Whitus v. Georgia, 385 U.S. 545 (1967); Jones v.

Georgia, 389 U.S. 24 (1967) (per curiam); Carter v. Jury Commission

of Green County, 396 U.S. 320, (1970); Castaneda v. Partida, 430

U.S. 482 (1977); Rose v. Mitchell, 443 U.S. 545 (1979); Vasquez v.

Hillery, 474 U.S. , 106 S.Ct. 617 (1986).

“The basic principles prohibiting exclusion of persons from participa-

tion in jury service on account of their race ‘are essentially the same

for grand juries and for petit juries.’ [citations omitted. ). Alerander

v. Louisiana, 405 U.S. 625, 626, n.3 (1972). These principles are

reinforced by the criminal laws of the United States. 18 U.S.C. Sec.

243. Citation from Batson, 106 S.Ct., at 1716, n.3.

categories posing no difficult questions of retroactivity,

went on to state, “we ngxt must ask whether that question

would be fairly resolved by applying the rule in Payton to

all cases still pending on direct appeal at the time when

Payton was decided. Answering that question in the affir-

mative would satisfy each of the three concerns stated in

Justice Harlan’s opinions in Desist and Mackey.” United

States v. Johnson, 457 U.S., at 554. Therefore, even if this

Court should find Batson does not fall into the first cate-

gory posing no problem for retroactivity, the same con-

clusion as that reached in Johnson is clearly appropriate

in petitioner's case.

While this Court, in United States v. Johnson specifi-

cally expressed no view on the retroactivity of decisions

construing any constitutional provisions other than the

Fourth Amendment, this Court reached the same result

in Shea v. Louisiana, 470 U.S. —_, 105 S.Ct. 1065 (1985).

In holding Edwards v. Arizona, 451 U.S. 477 (1981),

retroactive to cases pending on direct appeal at the time of

the Edwards ruling, this Court stated:

We now conclude, however, that there is no reason to

reach in this case a result that is different from the

one reached in Johnson. [citation omitted]. There is

nothing about a Fourth Amendment rule that sug-

gests that in this context it should be given greater

retroactive effect than a Fifth Amendment rule.

Shea, 105 S.Ct., at 1070.

In an approach clearly appropriate to petitioner's case,

this Court in Shea stated that “Justice Harlan’s reason-

ing—that principled decision-making and fairness to sim-

ilarly situated petitioners requires application of a new

rule to all cases pending on direct-review is applicable

with equal force to the situation presently before us.” /d.,

105 S.Ct., at 1070.

D. In Any Event, An Application Of The Stovall Criteria

Supports The Retroactive Application Of The Holding Of

Batson To Cases Pending On Direct Appeal At The Time

Of The Batson Decision.

An analysis which predates United States v. Johnson

involved the application of the following criteria in order

to make a retroactive determination in any given case:

a) the purpose to be served by the new standards;

b) the extent of the reliance by law enforcement

authorities on the old standards; and

c) the effect on the administration of justice of a

retroactive application of the new standards.

Stovall v. Denno, 388 U.S. at 297.

Although petitioner has already given reasons why he

does not believe this balancing test is appropriate for

cases on direct appeal at the time a “new” constitutional

rule is announced, he will arguendo demonstrate that

these criteria also support limited retrospectivity in cases

not yet final.

a) Purpose of Batson rule

The foremost consideration in this balancing of criteria

is the purpose to be served by the new rule. The factors of

reliance on the old rule and impact of the new rule on the

administration of justice become considerations only

“when the degree to which the rule enhances the integrity

of the factfinding process is sufficiently small.” Hanker-

son v. North Carolina, 432 U.S. 233, 243 (1977).

The integrity of the truth-finding process is signifi-

cantly enhanced by the holding of Batson rendering retro-

activity to cases pending on direct appeal appropriate.

This Court has recognized “that the extent to which the

purpose of a new constitution! rule requires its retroactive

application ‘is necessarily a matter of degree.’” Brown v.

Louisiana, 447 U.S. 323, 328 (1980), quoting from

Johnson v. New Jersey, supra, 384 U.S., at 729. “Consti-

tutional protections are frequently fashioned to serve

multiple ends; while a new standard may marginally

implicate the reliability and integrity of the factfinding

proces, it may have been designed primarily to foster

other, equally fundamental values in our system of juris-

prudence.” Brown, 447 U.S., at 329. “Not every rule that

‘tends incidentally’ to avoid unfairness at trial must be

accorded retroactive effect.” Jd., quoting from Gosa v.

Mayden, 413 U.S. 665, 680 (1973).

“The extent to which a condemned practice infects the

integrity of the truth-determining process at trial is a

‘question of probabilities’” Stovall, 388 U.S., at 298, quot-

ing Johnson v. New Jersey, 384 U.S., at 729.

This Court has acknowledged that “[b]y serving a crim-

inal defendant's interest in neutral jury selection pro-

cedures, the rule in Batson may have some bearing on the

trut» finding function of a criminal trial.” Allen, 54

U.S.L.W., at 3857. Allen also recognized that the Batson

decision served other values as well. This Court specified

two of these purposes: ensuring that states do not dis-

criminate against citizens summoned to sit in judgment

against a member of their own race and strengthening

public confidence in the administration of justice. Jd., at

3857. After noting the other procedures protecting a

defendant's interest in a neutral factfinder that Batson

joins, this Court ultimately concluded in Allen that the

new rule did not have such a fundamental impact on the

integrity of factfinding as to compel retroactive applica-

tion to cases whose judgments were final at the time of the

decision, that is, those arising on collateral review.

While the Batson rule may not have had such a funda-

mental impact on the integrity of factfinding as to compel

complete retroactivity, it surely does have a fundamental

impact. And certainly it has a fundamental enough impact

on factfinding to compel the minimally limited retroac-

tivity in question.

This Court has recognized “that the exclusion of a dis-

cernible class from jury service injures not only those

defendants who belong to the excluded class, but other

defendants as well, in that it destroys the possibility that

the jury will reflect a representative cross section of the

community.” Peters v. Kiff, 407 U.S. 493, 500 (1972). In

Williams v. Florida, 399 U.S. 78 (1970), after delineating

some essential features of the jury as guaranteed by the

Sixth Amendment, this Court concluded that the Sixth

Amendment comprehended “a fair possibility for obtain-

ing a representative cross-section of the community.” /d.,

at 100.

In rejecting the exclusion of women from jury service in

the federal courts, this Court dicussed the necessity of

representation of discernible groups on the jury:

The truth is that the two sexes are not fungible; a

community made up exclusively of one is different

from a community composed of both; the subtle inter-

play of influence one on the other is among the impon-

derables. To insulate the courtroom from either may

not in a given case make an iota of difference. Yet a

flavor, a distinct quality is lost if either sex is

excluded. Ballard v. United States, 329 U.S. 187,

193-194 (1946).

“When any large and identifiable segment of the com-

munity is excluded from jury service, the effect is to

remove from the jury room qualities of human nature and

varieties of human experience, the range of which is

unknown and perhaps unknowable. It is not necessary to

assume that the excluded group will consistently vote as a

class in order to conclude . . . that its exclusion deprives

the jury of a perspective on human events that may have

unsuspected importance in any case that may be pre-

sented.” Peters v. Kiff, 407 U.S., at 503-504. (opinion of

Marshall, J.). This removal of human nature and experi-

ence from the jury room certainly directly impacts upon

the integrity of the truth-finding process.

Of course, prosecutors would not have been indulging in

the practice of striking jurors on the basis of race if this

did not affect the truth-finding function of the trial itself.

It appears self-evident that the reason a prosecutor would

eliminate blacks from a jury is in the belief that this will

affect the outcome of the case by making a conviction

easier to obtain. That belief is supported by sociological

studies.”

7 Social scientists have documented both the tendency of pros-

ecutors to exclude blacks from juries, and the pro-prosecution effect

such exclusions may have on a verdict, especially where the govern-

ment’s evidence is insubstantial and the defendant is black. See, e.g.,

Adler, Socioeconomic Factors Influencing Jury Verdicts, 3 N.Y.U.

Rev. L. & Soc. Change 1-10 (1973); Bell, Racism in American Courts:

Cause for Black Disruption or Despair? , 61 Calif. L. Rev. 165, 165-203

(1973); Bernard, /nteraction Between the Race of the Defendant and

That of Jurors in Determining Verdicts, 5 L. & Psych. Rev. 103,

107-08 (1979); Broeder, The Negro in Court, 1965 Duke L.J. 19-22;

Comment, A Case Study of the Peremptory Challenge: A Subtle

Strike at Equal Protection and Due Process, 18 St. Louis U.L.J. 62

(1974); Davis and Lyles, Black Jurors, 30 Guild Practitioner 111

(1973); Gerard & Terry, Discrimination Against Negroes in the

Administration of Criminal Law in Missouri, 1970 Wash. St.

U.L.Q. 415-37; Ginger, What Can Be Done to Minimize Discrimina-

tion in Jury Trials? , 20 J.Pub.L. 427 (1971); Gleason & Harris, Race,

Socio-Economic Status, and Perceived Sinilarity as Determinants

of Judgments by Simulated Jurors, 3 Soc. Behav. & Personality

1975-80 (1975); H. Kalven and H. Zeisel, The American Jury 196-98,

In Brown v. Louisiana, 447 U.S. 323 (1980), this Court

held that the rule of Burch v. Louisiana, 441 U.S. 130

(1979), that a conviction of a nonpetty criminal offense by

a non-unanimous six-person jury violates an accused's

Sixth and Fourteenth Amendment right to a jury trial,

must be given retroactive effect. This Court recognized in

Brown that “[tJhe right to jury trial guaranteed by the

Sixth and Fourteenth Amendments ‘is a fundamental

right, essential for preventing miscarriages of justice and

for assuring that fair trials are provided for all defend-

ants.” Id., 447 U.S., at 329, quoting from Dwncan v.

Louisiana, 391 U.S. 145, 158 (1968).

The holding of Brown supports petitioner's position for

the retroactive application of Batson to cases pending on

direct appeal. This Court's rationale in Brown concerning

the purpose of the Burch rule is certainly directly applica-

ble to the case at bar:

Insum, Burch established that the concurrence of six

jurors was constitutionally required to preserve the

substance of the jury trial right and assure the

reliability of its verdict. It is difficult to envision a

constitutional rule that more fundamentally impli-

cates “the fairness of the trial—the very integrity of

the ante process.” [citation omitted.] “The

basic purpose of a trial is the determination of truth,”

[citation omitted], and it is the jury to whom we have

210-13 (1966); McGlynn, Megas & Benson, Sex and Race as Factors

Affecting the Attribution of Insanity in a Murder Trial, 93 J.Psych.

98 (1976); Rhine, The Jury: A Reflection of the Prejudices of the

Community in Justice on Trial 41 (D. Douglas & P. Nobel, eds.

1971); R. Simon, The Jury and the Defense of Insanity, 111 (1977);

Ugwuegbu, Racial and Evidential Factors in Juror Attribution of

Legal Responsibility, 15 J. Experimental Soc. Psych. 133, 143-44

(1979); J. Van Dyke, Jury Selection Procedures: Our Uncertain

Commitment to Representative Panels, 33-35, 154-60 (1977).

entrusted the responsibility for making this deter-

mination in serious autos inal cases. Any practice that

threatens the jury's ability properly to perform that

function poses a similar threat to the truth-determin-

ing process itself. The rule in Burch was directed

toward elimination of just such a practice. Its pur-

pose, therefore, clearly — retroactive applica-

tion. Brown, 447 U.S., at 334. (Footnote omitted).

In his concurring opinion in Batson, Justice White pre-

liminarily indicated his adherence to the rule announced

in DeStefano v. Woods, 392 U.S. 631 (1968), that Duncan

v. Louisiana, 391 U.S. 145 (1968), holding States could

not deny jury trials in criminal cases, did not apply retro-

actively to cases in which trials began prior to the date of

the Duncan decision. Justice White also mentioned

Daniel v. Louisiana, 420 J.S. 31 (1975) (per curiam),

which held nonretroactive the decision in Taylor v. Loui-

siana, 419 U.S. 522 (1975), finding the systemic exclusion

of women from jury panels a violation of the Sixth and

Fourteenth Amendments.

Petitioner respectfully submits both are distinguisha-

ble from the case at bar. Both cases considered in

DeStefano, Duncan and Bloom v. Illinois, 391 U.S. 194

(1968), represented a clear break in the law. Both cases

held for the first time that the Sixth Amendment's right to

a jury trial was incorporated in the due process clause of

the Fourteenth Amendment and, thus, applicable to the

states. Those decisions constituted a reversal of prior

decisions of this Court holding the Sixth Amendment was

not applicable to the States. DeStefano, 392 U.S., at 634.

Also, as stated in Bloom, the proposition that a jury trial

need not be provided in contempt cases was “a constitu-

tional principle which is firmly entrenched and which has

behind it weighty and ancient authority.” Bloom, 391

U.S., at 197-198.

Similarly, Taylor v. Louisiana, which this Court

declined to apply retroactively in Daniel, represented

new law sufficient to be characterized as a clear break.

This Court stated in Taylor:

Although this judgment may appear a foregone con-

clusion from the pattern of some of the Court’s cases

over the past thirty years, as well as from legislative

developments at both federal and State levels, it is

nevertheless true that until today no case had

squarely held that the exclusion of women from j

venires deprives a criminal defendant of his sixt

amendment right to trial by an impartial jury drawn

from a fair cross-section of the community. Taylor,

419 U.S., at 535-536.

On the contrary, the principle of Batson that “a State’s

purposeful or deliberate denial to Negroes on account of

race of participation as jurors in the administration of

justice violates the Equal Protection Clause,” is a firmly

entrenched concept with weighty and ancient authority

behind it. Swain, 380 U.S., at 203-204, and Strauder, 100

U.S., at 309. |

“When the prosecution unconstitutionally uses its

peremptory strikes to remove blacks and Hispanics from

the jury, the threat to the truth-finding process is not

cured by measures designed merely to ensure that white

jurors permitted to serve satisfy the legal standard for

impartiality.” Allen, 54 U.S.L.W. at 3857. (Marshall, J.,

dissenting).

However, this Court has indicated that the Batson “rule

joins other procedures that protect a defendant's interest

in a neutral factfinder.” Allen, 54 U.S.L.W., at 3857. For

example, “/v/oir dire examination is designed to identify

veniremen who are biased so that those persons may be

excused through challenges for cause.” /d., at 3857, n.2.

But, in a case such as the one at bar, there is no federal

constitutional right of the defendant to question the

potential jurors concerning racial prejudice simply

because the offense to be tried involved an alleged crimi-

nal confrontation between a black assailant and a white

victim. Ristaino v. Ross, 424 U.S. 589 (1976). See

Rosales-Lopez v. United States, 451 U.S. 182 (1981). But

see Turner v. Murray, 476 U.S. __, 106 S.Ct. 1683, 1688

(1986), holding that, as a matter of federal constitutional

law, “a capital defendant accused of an interracial crime is

entitled to have prospective jurors informed of the race of

the victim and questioned on the issue of race.” No federal

constitutional precept insured that the defense could test

the racial prejudices of the potential jurors in the instant

case.

But even assuming arguendo that the trial judge below

would have permitted such a defense inquiry concerning

racial prejudice, petitioner's defense counsel may have

elected not to inject the issue of racial bias into the voir

dire. Such “an inquiry” could “create the impression ‘that

justice in a court of law may turn upon the pigmentation of

skin [or] the accident of birth.’” Rosales-Lopez v. United

States, supra at 190. As this Court has previously recog-

nized, “it is usually best to allow the defendant to resolve

this conflict by making the determination of whether or

not he would prefer to have the inquiry into racial or

ethnic prejudice pursued.” /d., at 192. See Turner v. Mur-

ray, supra, 106 S.Ct., at 1688, n.10. It begs reality to

suggest that the mere possibility of voir dire questioning

on racial prejudice, with its potential negative effects for

the defense in any given case, was an adequate procedure

to protect a defendant's interest in a neutral fact-finder

when the defense had reason to believe the prosecutor's

peremptory challenges were being consciously employed

to exclude certain veniremen from the petit jury on

account of their race.

According to this Court, these “other mechanisms

[which] existed prior to [the] decision in Batson creat(ed]

a high probability that the individual jurors seated in a

particular case were free from bias.” Allen, 54 U.S.L.W.,

at 3857. The only other example of such prophylactic

“mechanism” or “procedure” catalogued by this Court

was the use of a cautionary instruction on passion or

prejudice. However, neither the trial judge's orientation

of the venirepersons during vior dire nor the jury instruc-

tions in the case at bar “emphasize(d] that the jurors must

not rest their decision on any impermissible factor, such

as passion or prejudice.” /d., at 3857, n.2. Kentucky's

sparse jury instructions in criminal cases have been pre-

viously described by this Court as “rather Spartan.” Tay-

lor v. Kentucky, 436 U.S. 478, 486 (1978).

Since neither voir dire on racial bias nor cautionary

instructions on passion or prejudice are constitutionally

mandated, even upon defense request, it is difficult to

conclude that such discretionary procedures insulated

defendants in criminal cases from the calculated impact on

the integrity of factfinding generated by the prosecution's

efforts to remove from the jury in trials of cross-racial

crimes potential jurors of the same race as the defendant.

In this Court's past decisions, when a large group, such

as blacks, was “excluded [from jury service] for reasons

completely unrelated to the ability of members of the

group to serve as jurors in a particular case, the exclusion

raised at least the possiblity that the composition of juries

would be arbitrarily skewed in such a way as to deny

criminal defendants the benefit of the common-sense

judgment of the community.” Lockhart v. McCree, 476

U.S. ——, 106 S.Ct. 1758, 1765 (1986).

For far more than a century this Court has dealt with

racial discrimination. One of the earliest forms of discrimi-

nation appeared in the arena of jury selection. This Court

has unwaveringly held that exclusion from the jury venire

of minority persons violates the Equal Protection Clause.

Strauder, 100 U.S., at 305.

In a plethora of other areas, judicial decisions have

struck down discriminatory actions based on race. For

instance, see Palmore v. Sidoti, 466 U.S. 429 (1984); Lov-

ing v. Virginia, 388 U.S. 1 (1967); Korematsu v. United

States, 323 U.S. 214 (1944); Yick Wo v. Hopkins, 118 U.S.

356 (1886).

The breadth and history of these cases as well as the

anti-discrimination legislation of this country are a reflec-

tion of the existence and pervasiveness of racism in this

country.

“One hundred fourteen] years after the close of the

War Between the States and nearly 100 years after

Strauder, racial and other forms of discrimination still

remain a fact of life, in the administration of justice as in

our society as a whole.’” Vasquez v. Hillery, 476 U.S.

—_—., 106 S.Ct. 617, 624 (1986) citing Rose v. Mitchell, 443

U.S. 545, 558-559 (1979).

The concept that an all-white jury which is the result of

racially-directed peremptory challenges will necessarily

be free from bias ignores the historical racism plaguing

this country. Only recently this Court acknowledged as

much, particularly in cases involving black defendants

and white victims such as the case at bar. “Once rhetoric is

put aside, it is plain that there is some risk of racial

prejudice influencing a jury whenever there is a crime

involving interracial violence . . .” Turner, 106 S.Ct. at

1688, n.8 (1986). Certainly in light of the historical fact of

racism, the possiblity that a jury will be bias-free cannot

dilute the impact of the truth-finding effect of the Batson

rule.

Only recently this Court has acknowledged the impact

of discrimination in selection of the grand jury upon the

truth-finding process, rejecting the State's position that

such discrimination should be held harmless error:

Nor are we persuaded that discrimination in the

grand jury has no effect on the fairness of the crimi-

nal trials that result from that grand jury’s actions.

The grand jury does not determine only that proba-

ble cause exists to believe that a defendant com-

mitted a crime, or that it does. In the hands of the

grand jury lies the power to charge a greater offense

or a lesser offense; numerous counts or a single count;

and perhaps most significant of all a capital offense or

a noncapita!l offense—all on the basis of the same

facts. Vasquez, 106 S.Ct., at 623 (1986).

The Court concluded such discrimination affected the

integrity of the trial process itself, stating, “[E]ven if a

grand jury's determination of probable cause is confirmed

in hindsight by a conviction on the indicted offense, that

confirmation in no way suggests that the discrimination

did not impermissibly infect the framing of the indictment

and consequently, the nature or very existence of the

proceedings to come.” /d., 106 S.Ct., at 623. Discrimina-

tion in selection of the petit jury could only have as much if

not more impact on the nature of trial proceedings.

In petitioner's particular case, racial discrimination in

jury selection may well have had more of an impact upon

the truth-finding process than in some other cases since

Kentucky has jury sentencing as well as jury guilt-inno-

cence determination.® See Turner v. Murray, 476 U.S.

__., 106 8. Ct. 1683 (1986). In Turner this Court reversed

the capital conviction due to the trial court’s failure to

allow the defendant accused of an interracial capital crime

to question prospective jurors on the issue of racial bias,

recognizing that “[iJn a capital sentencing proceeding

before a jury, the jury is called upon to make a highly

subjective, ‘unique, individualized judgment regarding

the punishment that a particular person deserves.’” /d.,

106 S.Ct., at 1687. [Citations omitted. ]

Petitioner realizes the purpose of the Batson rule is a

multi-faceted one serving more than one end. Beside the

truth-finding function of the rule, one obvious and very

important purpose is that of protecting stricken jurors

and society against the invidiousness of racial discrimina-

tion. “The harm from discriminatory jury selection

extends beyond that inflicted upon the defendant and the

excluded juror to touch the entire community.” Batson,

106 S.Ct., at 1718. “That criminal defendants will not be

the only beneficiaries of the rule, however, should hardly

diminish our assessment of the rule’s impact upon the

ability of defendants to receive a fair and accurate trial.”

Allen, 54 U.S.L.W., at 3857, (Marshall, J., dissenting).

The purposes of Batson support a retroactive applica-

tion of that decision to cases pending on direct appeal.

b) Reliance

Due regard for the countervailing consideration of

reliance does not weigh against retroactivity. In fact,

8 In Kentucky “{wJhen the jury returns a verdict of guilty it shall fix

the degree of the offense and the penalty, except where the penalty is

fixed by law, in which case it shall be fixed by the court.” RCr 9.84(1).

See KRS 532.060 and 532.070.

reliance is not an appropriate consideration with respect

to the Batson holding since reliance could not have been

justifiable.

While Baton can be described arguendo as an “explicit

and substantial break with prior precedent”? on the ques-

tion of standard of proof, it was certainly not a clear break

on the question of the constitutional principle it involved.

It merely reiterated the long-standing constitutional pre-

cept contained in Swain that “a State's purposeful or

deliberate denial to Negroes on account of race of par-

ticipation as jurors in the administration of justice vio-

lates the Equal Protection Clause.” Swain, 380 U.S. at

204.

Moreover, on the question of standard of proof, the

ruling of Batson was far from unforeseen. On the subject

of a defendant's standard of proof, “[iJn the nearly two

decades since it was decided, Swain has been the subject

of almost universal and often scathing criticism. Since

every defendant is entitled to equal protection of the laws

and should therefore be free from the invidious discrimi-

nation of state officials, it is difficult to understand why

several must suffer discrimination be cause of the pros-

ecutor’s use of peremptory challenges before any defend-

ant can object.” McCray v. New York, 461 U.S. 961,

964-965 (1983) (footnote omitted).

Prior to Batson, several state courts and two federal

circuits had adopted approaches to the problem of proof of

discrimination during jury selection which essentially

bypassed the Swain “case by case” proof requirement

usually through a Sixth Amendment analysis or on state

constitutional grounds. See McCray v. Abrams, 750 F.2d

* Allen, 54 U.S.L.W., at 3857.

1113 (2nd Cir. 1984); Booker v. Jabe, 775 F.2d 762 (6th Cir.

1985), cert. pending No. 85-1028; People v. Wheeler, 22

Cal. 3rd 258, 583 P.2d 748 (1978); Commonwealth v.

Soares, 377 Mass. 461, 387 N.E.2d 499 (1979); State v.

Crespin, 94 N.M. 486, 612 P.2d 716 (Ct. App. 1980); State

v. Niel, 457 So.2d 481 (Fla. 1984); State v. Gilmore, 299

N.J. Supr. 389, 489 A.2d 1175 (1985); People v. Thompson,

79 A.D. 87, 485 N. Y.S.2d 739 (2d Dept. 1981), overruled,

People v. McCray, 57 N.Y.2d 342, 457 N.Y.S.2d 441

(1982); Riley v. State, 496 A.2d 997 (Del. 1985). Some

other federal courts held that its supervisory power could

be used to scrutinize the prosecutor's exercise of peremp-

tory challenges to strike blacks in a case. See United

States v. Jackson, 696 F.2d 578 (8th Cir. 1982), and L/nited

States v. McDaniels, 379 F.Supp. 1243 (E.D.La. 1974).

Consequently, it was not the case that prosecutors

could not forsee the Batson ruling on standard of proof.

The proliferation of cases raising the issue of the misuse of

peremptory challenges demonstrates that the practice

was nationwide prior to the Batson ruling. '° For instance,

583 P.2d 748 (1978); State v. Neil, 457 So.2d 482 (Fla. 1984); People v.

Payne, 106 Ill. App. 3d 1034, 62 Ill. Dec. 744, 436 N.E.2d 1046 (Ill.

Ct. App. 1982), rev'd 9 Ill. 2d 135, 457 N.E.2d 1202 (1983); Common-

wealth v. Soares, 377 Mass. 461, 387 N.E.2d 499, cert. denied, 444

U.S. 1 881 (1979); State v. Crespin, 94 N.M. 2d 486, 612 P.2d 716

(1980); People v. Kagan, 420 N.Y.S.2d 987 (N.Y.Sup.Ct. App. Div.

1979); People v. Thompson, 79 A.D.2d 87, 435 N.Y.S.2d 739 (N.Y.

Sup. Ct. App. Div. 1981); People v. Boone, 107 Mis. 2d 301, 433

N.Y.S.2d 955 (Sup. Ct. 1980); People v. McCray, 57 N. Y.2d 542, 457

N. Y.S.2d 441, 443 N.E.2d 915 (1982); United States v. Newman, 549

F.2d 240 (2nd Cir. 1977); United States v. McDaniels, 379 F. Supp.

1243 (E.D. La. 1974); United States v. Childress, 715 F.2d 1313 (8th

Cir. 1983); United States v. Whitfield, 715 F.2d 145 (4th Cir. 1983);

United States v. Clark, 737 F.2d 679 (7th Cir. 1984); Wheathersby v.

Morris, 708 F.2d 1493 (9th Cir. 1983); Willis v. Zant, 720 F.2d 1212

(lith Cir. 1983).

the Illinois Supreme Court “has reviewed at least 33 cases

in which criminal defendants have alleged prosecutorial

misuse of peremptory challenges to exclude Negro

jurors.” Williams v. Illinois, 466 U.S. 981, 104 S.Ct.

2364, 2365 (1984) (denial of cert.) (Marshall, J., dissent-

ing). The Eighth Circuit has observed “the frequency

with which we have been called upon to examine the

prosecutor's practices in this regard in the Western Dis-

trict of Missouri.” L/nited States v. Jackson, 696 F.2d 578,

592 (8th Cir. 1982). And the Louisiana Supreme Court

reviewed nine cases in seven years from the same parish,

five of which involved the same prosecutor. State v.

Brown, 371 So.2d 751 (La. 1979).

Indeed, prosecutors have publicly admitted that they

seek to keep blacks from sitting on criminal trials as a

matter of course because they fear blacks will be too

sympathetic to a defendant. Thus, an instruction book

used by the prosecutor's office in Dallas County, Texas,

the site of Hill v. Texas, 316 U.S. 400 (1942), Akins v.

Texas, 325 U.S. 398 (1945) and Cassell v. Texas, 339 U.S.

282 (1950), advised prosecutors that they did not want a

“member of a minority group” on a jury because he will

“almost always empathize with the accused.” Brown,

McGuire, and Winters, The Peremptory Challenge as a

Manipulative Device in Criminal Trials, Traditional

Use or Abuse? 14 New Eng.L. Rev. 192, 224 (1978).

Aside from the question of foreseeability, the fact that

the prosecutorial use of peremptories solely on race was a

widespread practice does not support a conclusion that

prosecutors were justifiably relying on an “old rule.”

There was no “old rule” which allowed prosecutors to

exercise peremptories solely on the basis of race. Swain

certainly did not allow this. The only question left open in

Swain was whether defendants would be able to meet the

difficult burden of proof in proving this admittedly uncon-

stitutional prosecutorial practice.

This Court has never held such “[{uJnjustified reliance

[to be]. . . a bar to retroactivity.” Solem v. Stumes, 465

U.S. 638, 646 (1984). Petitioner's case certainly does not

demonstrate an arguable situation of justifiable reliance.

The prosecutor in this case struck all blacks in Batson,

and four of five in petitioner’s case. The prosecutor has

also come under attack in the Kentucky appellate courts

for striking all of the black jurors in the following cases:

Johnny Earl Williams v. Commonwealth, Ind. No.

85-CR-264, Ky.Ct.Ap. No. 85-CA-2073-MR

Maurice Debois Gasaway v. Commonwealth, Ind.

No. 84-CR-824, Ky.S.Ct. No. 85-SC-494-MR

This pattern of practice, while falling short of the eviden-

tiary standard set out in Swain, certainly does not sup-

port a finding of justifiable reliance.

“This is not case in which primary conduct by such

officials was permitted by one decision of this Court and

then prohibited by another. Swain made quite clear that

the use of peremptory challenges to strike black jurors on

account of their race violated the Equal Protection

Clause. All Batson did was to give defendants a means of

enforcing this prohibition.” Allen, 54 U.S.L.W., at 3858

(Marshall, J., dissenting).

Thus, “the justifiability of the State’s reliance. . . wasa

good deal more dubious than the justification for reliance

that has been given weight in [the] Linkletter line of

cases.” Robinson v. Neil, 409 U.S., at 510. The considera-

tion of reliance does not support nonretroactive applica-

tion of Batson to cases pending on direct appeal.

c) Effect on the Administration of Justice

The effect of a retrospective application of Batson to

cases pending on direct appeal on the administration of

criminal justice would be minimal. In rejecting the total

retroactivity of Batson, this Court in Allen noted that

“retroactive application of the Batson rule on collateral

review of final convictions would seriously disrupt the

administration of justice.” Allen, 54 U.S.L.W., at 3857.

The concerns of this Court in the context of collateral

review do not apply to cases pending on direct review.

First, the number of cases on direct review would be

greatly reduced in comparison to cases on collateral

review. Moreover, the number is further reduced in light

of the number of state and federal jurisdictions where

alternative proof standards had already been adopted

under state constitutions, the Sixth Amendment or

supervisory powers.!! Some of those jurisdictions have

already addressed specifically the question of retroac-

tivity. !*

This Court has recognized that there will be no problem

in holding evidentiary hearings in cases on direct review

since this Court remanded Batson for an evidentiary

hearing. Batson,106 S.Ct., at 1725. The cases on direct

appeal would have arisen in about the same time frame as

Batson, alleviating this Court’s concerns with holding

hearings in collateral review cases. Allen, 54 U.S.L.W.,

at 3857.

Finally, there should be no burden on prosecutors in

explaining their use of peremptories on black jurors in the

1! See footnote 10, supra.

12 See, e.g., Commonwealth v. Soares, supra, 583 P.2d at 767; State

v. Jones, 485 So.2d 1283 (Fla. 1986); State v. Castillo, 486 So.2d 565

(Fla. 1986).

few cases to be affected by a limiting retrospectivity

ruling. First, the time frame is not too remote. Secondly,

since Swain, prosecutors who used their peremptories to

strike black jurors knew at any time they could be chal-

lenged for a pattern of discriminatory practice. As such,

prosecutors were constitutionaily obligated to keep infor-

mation about such jurors in order to respond to the chal-

lenges made possible under Swain.

While under Swain prosecutors may not have been

required to put reasons for their peremptory strikes

against members of a minority race on the record, they

clearly were obligated to formulate non-discriminatory

reasons for striking jurors. The prosecutor's attempt to

explain two of his four challenges in the case at bar sug-

gests that prosecutors were aware of the need to be able to

develop a record in the face of a Swain challenge long

before Batson. (A 14).

The minimal impact on the administration of criminal

justice clearly supports a ruling of the retroactive applica-

tion of Batson to cases pending on direct review.

CONCLUSION

Petitioner respectfully requests that the decision of the

Kentucky Supreme Court in petitioner's case be reversed

and that Batson v. Kentucky be applied retroactively to

cases pending on direct appeal at the time Batson was

decided.

Respectfully submitted,

JOANNE M. YANISH

Counsel of Record

Assistant Public Advocate

Department of Public Advocacy

151 Elkhorn Court

Frankfort, Kentucky 40601

(502) 564-7205

Larry H. MARSHALL

Assistant Public Advocate

J. VINCENT APRILE II

Genera! Counsel

Counsel for Petitioner

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.