# Petitioners Brief — Griffith v. Kentucky

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petitioners Brief
- **Published:** January 1, 1987
- **Citation:** 479 U.S. 314

## 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

i
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.

ii

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

iv

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

Vv

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

vi

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
25

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

2

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-

3

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.

4

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

5

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

6

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.

7
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).

8

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-

9

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

10

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

ll

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.

12

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.

13

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

14

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).

15

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 .

16

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

17

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).

18

“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-

19

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

20

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.

21

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.

22

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

23

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.

24

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

25

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,

26

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).

27

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.

28

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.

29

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

30

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).

31

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

32

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-

33

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.

34

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.

35

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,

© See, e.g., People v. Wheeler, 22 Cal. 3d 258, 148 Cal. Rptr. 8990,
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).

36

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

37

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

38

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).

39

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.

40

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

ge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0212%3A05. Public record. Not legal advice.