Amicus Curiae Brief — Griffith v. Kentucky

No. 85-5221 ('' /

IN THE

SUPREME COURT OF THE UNITED STATES

October Term 1986

RANDALL LAMONT GRIFFITH.

Petitioner

Vv.

COMMONWEALTH OF KENTUCKY,

Respondent

ON WRIT OF CERTIORARI TO THE

KENTUCKY SUPREME COURT

BRIEF AMICI CURIAE IN

SUPPORT OF THE RESPONDENT

BY THE NORTH CAROLINA ATTORNEY

GENERAL AND THE 21

AMICI THAT APPEAR ON THE INSIDE COVER

Lacy H. Thornburg

Attorney Genera!

Joan H. Byers

Special Deputy Attorney General

Counsel of Record

P.O. Box 629

Raleigh, North Carolina 27602

Telephone: (919) 733-6012

Alabama by Charles A. Graddick, Attorney General

Arizona by Robert K. Corbin, Attorney General

Arkansas by John Steven Clark, Attorney General

Connecticut by John I. Kelly, Chief State’s Atorney

Delaware b M. Oberly, Attorney General

Hawaii by Corinne K. A. Watanabe, Attorney General

Illinois by Neil F. Hartigan, Attorney General

Indiana by Linley E. Pearson, Attorney General

lowa by Thomas J. Miller, Attorney General

Kansas by Robert T. Stephan, Attorney Genera!

Louisiana by William J. Guste, Jr., Attorney General

Maryland by Stephen H. Sacks, Attorney General

Mississippi by Edwin L. Pittman, Attorney General

Missouri by William L. Webster, Attorney General

Oklahoma by Michael Turpen, Attorney General

South Carolina by Travis Medlock, Attorney General

Tennessee by W. J. Michael Cody, Attorney General

Texas by Jim Mattox, Attorney General

Utah by David L. Wilkinson, Attorney General

Virginia by Mary Sue Terry, Attorney General

Wyoming by Archie G. McClintock, Attorney General

QUESTION PRESENTED

SHOULD THE HOLDING IN BATSON y.

KENTUCKY, 476 U.S (1986), BI

GIVEN RETROACTIVE EFFECT IN

CASES PENDING ON DIRECT

APPEAL?

TABLE OF CONTENTS

CUTTS BIEN F URRSEIES BEEP ccccccececccccccesesccsescccessescescesess

TAREE Gi AU TERRE 6 BID cccececccccccccscccccsccsccssscccssees

INTEREST OF THE AMICI CURIAE..........

STATEMENT OF THE CASE......

SUMMARY OF THE ARGUMENT ........

ARGUMENT

BATSON V. KENTUCKY SHOULD NOT BE

APPLIED RETROACTIVELY TO CASES

NOW PENDING ON DIRECT APPEAL.

UNDER THE "CLEAR

BREAK" STANDARD

OF UNITED STATES

v. JOHNSON, BAT-

SON SHOULD NOT

BE GIVEN RETROAC

TIVE EFFECT

2 STOVALL v. DENNO

CRITERIA ALSO

MANDATE PROSPEC

TIVE APPLICATION

OF BATSON

CONCLUSION

. Il

ill

TABLE OF AUTHORITIES

Allen v. Hardy, U.S _.,

106 S.Ct. 2878 (1986) ..... 2,6,8,10,12,15.17,18

Anderson v. Bessemer City, 470 U.S

105 S.Ct. 1540 (1985)

Arsenault v. Massachusetts, 393 U.S. 314 (1969)

Batson v. Kentucky, U.S

106 S.Ct. 1712 (1986)

Bloom vy. Illinois, 391 U.S. 194 (1968)

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

Caldwell v. Mississippi, 472 U.S. n.7, 105 S.Ct

2633, n.7 (1985)

Castaneda v. Partida, 430 U.S. 482. 502. n.1 (1977)

Commonwealth v. Soares, 377 Mass. 461.

387 N.C.2d 499 (1979)

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

De Stefano v. Woods, 391 U.S. 145 (1968)

Desist v. United States, 394 U.S. 244 (1969)

20

~

1O

Passim

1]

IV

Dunaway v. New York, 422 U.S. 200 (1979) ooo.ccccccccccccocceee. 7

Edwards v. Arizona, 451 U.S 477 (1981) .o.cccccccccccccccccccceceeee: x

Esquivel v. McCotter, 791 F.2d 350 (Sth Cir.

1986), cert.denied, US.

106 S.Ct. 2294 (1986) coveccsccnomceeseneesensssmneneeee 15

Furman v. Georgia, 408 U.S. 238 (1972)....... mm 1

Gideon v. Wainwright, 372 U.S. 335 (1963) .........00cc0c0000. DI

Gilliard v. Mississippi, 464 U.S. 867 (1983) .... 16

Gosa v. Mayden, 413 U.S. 665 (1973).... 8,10,11,12

Gregg v. Georgia, 428 U.S. 153 (1976)...... 13,14

Ham v. South Carolina, 409 U.S. 524 (1973).. 3

Hankerson v. North Carolina, 432 U.S. 233 (1977) 10,11

Ivan v. City of New York, 407 U.S. 203 (1972) 10

Johnson v. New Jersey, 384 U.S. 719 (1966) 10,12

Jurek v. Texas, 428 U.S. 262 (1976) 13

Katz v. United States, 389 U.S. 347 (1967) 9

Larry Smith v. McCotter, 86-1615, F.2d

(Sth Cir. 1986), stay denied, U.S

(August 21, 1986)... 14

Linkletter v. Walker.381 U.S. 618 (1965) 6

Lockhart v. McCree. U.S

106 S.Ct. 1758 (1986) L]

McCray v. New York, 461 U.S. 961 (1983) 4.9.16

Michigan v. Booker, No. 85-1028 (June 30, 1986) 8

Morris v. Slappy, 461 U.S. 1 (1983) 22

Patton v. Yount, 467 U.S. 1025 (1984) 2

People v. Wheeler, 22 Cal.3d 258, 148 Cal. Rpt:

890, 583 P.2d 748 (1978 4%

Pulley v. Harris, 465 U.S. 37 (1984 13

Reed v. Ross, 468 U.S. 1 (1984 18

Regents of University of California v. Bakke, 438

U.S. 265. n.§3 (1978 l¢

Reynolds v. United States, 98 U.S. 145 (1879 20

Ristaino v. Ross. 424 U.S. §89 (197%

vi

Rosales - Lopez v. United States, 451 U.S. 182, (1981)..... 20

Shea v. Louisiana, US , 105 S.Ct. 1065 (1985) .6,7,9

Solem v. Stumes, 465 U.S. 638 (1984) 6.7

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

(N.M. App. 1980) 5

State v. Jackson, N.C

343 S.E.2d 814 (1986) 6,18

Stovall v. Denno, 388 U.S. 293 (1967) 2,3,6,9,15.17

Strauder v. West Virginia, 100 U.S. 303 (1880) 15

Swain v. Alabama, 380 U.S

202 (1965) 2,3,4,5.8.15.16.17.18,2

a

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

Tehan v. Shott, 382 U.S. 406 (1966) 1O

Thompson v. United States, U.S

105 S.Ct. 443 (1984) 4.16

Turner v. Murray, 476 U.S

106 S.Ct. 1683, (1986) 12,13

United States v. Hastings, 461 U.S. 499 (1983 22

United States v. Johnson. 457 U.S. 538 (1982 2. 3.6.7.9.17

United States v. Leslie, 783 F.2d 541 (1986 $15

United States v. Peltier, 422 U.S. 531. 7

United States v. Wade. 388 U.S. 218 (1967 18

Williams v. United States, 401 U.S. 646, 653 (19

Witherspoon v. Illinois, 391 U.S. 510 (1968

MISCELLANEOUS

Blackstone Commentaries 69 (15th ed. 180 7

“Use Of The Peremptory Challenge”, 79 ALR3d 14

S32» 97/1077

nson, Black Innocence And The White Juror. ®

Michigan Law Review 1611 (1985

‘5 es ( + ‘ i A 7

IN THE

SUPREME COURT OF THE UNITED STATES

(jctober |

Petitioner

Respondent

BRIEF OF THE AMICI STATES

IN SUPPORT OF RESPONDENT

COMMONWEALTH OF KENTUCKY)

INTEREST OF THE AMICI CURIAE

The amici curiae are States which have, in the

administration of their systems of justice, relied on the

holding in Swain v. Alabama in regulating the use by the

State of the State’s peremptory challenges in cases and whose

court systems will be seriously disrupted by a retroactive

application of Batson v. Kentucky.

STATEMENT OF THE CASE

The amici States adopt the Statement of Case as sect

forth by the respondent Commonwealth of Kentucky

SUMMARY OF THE ARGUMENT

Swain v. Alabama, correctly or incorrectly, was

perceived by the State and lower Federal Courts to hold that a

prosecutor, without violating the Equal Protection Clause of

the Constitution, could, on a case specific basis, challenge

blacks or other minorities on the basis of race. Batson vy.

Kentucky has prohibited such conduct and has radically

changed the evidentiary burden of a defendant in showing an

Equal Protection Violation based on the prosecutor's use of

peremptory challenges

Batson v. Kentucky represents a “clear break" with

past precedent and therefore, under the threshold test set out

in United States v. Johnson, should be given prospective

effect only

If the retroactivity issue is determined by resorting to

the three factor test of Stovall v. Denno, the decision of

Batson still should be deemed by this Court to be prospective

in effect only. None of the three factors favors holding

Batson retroactive

In Allen v. Hardy this Court assumed Batson had

some impact on the truth finding function of the jury

However, even as to capital cases, due to the other safeguards

in place in a trial, the decision in Batson will have no sub

stantial impact on the truth finding function of the jury

Prosecutors and State Courts relied on the apparent

holding in Swain dealing with both when the Constitution is

violated by a prosecutor's conduct and what evidentiary

showing must be made to ~~ an Equal Protection viola-

wain

tion. The interpretation of by the prosecutors that the

Equal Protection Clause permitted case specific peremptory

challenges based on race is not unreasonable since that view

of Swain was also held by the State and Federal Courts, as

well as the legal commentators who reviewed the issue.

Finally, the impact of a retroactive application of

Batson, even when limited to cases now pending on direct

nm will be significant. Due to the changes made by

atson as to the defendant and prosecutor must show in

litigating an Equal Protection violation claim, the vast

majority of the cases containing a Batson issue will have to

be remanded for an evidentiary hearing. Since the prosecutor

likely will be unable, several years after a voir dire, to

explain why he used his peremptories in the manner he did,

many new trials must be granted in cases. Victims and

witnesses will once more be required to undergo the incon-

venience and trauma of testifying. Thus, the impact on the

system of justice will be significant. The Stovall v. Denno

test, like the “clear break" threshold rule of United States v.

Johnson mandate that Batson v. Kentucky not be given

retroactive effect for those cases now pending on direct

appeal

ARGUMENT

IN CASES PENDING ON DIRECT

APPEAL BATSON V. KENTUCKY

SHOULD NOT BE GIVEN RETROAC.

TIVE EFFECT.

In 1965, in Swain v... sbama, 380 U.S. 202 (1965)

in an Opinion written by Justice White, this Court stated in

Part Il of the opinion that:

“...we cannot hold that the striking of Negroes

in a particular case is a denial of equal protec

tion of the laws. In the quest for an impartial

and qualified jury, Negro and white, Protestant

amd Catholic, are alike subject to being

challenged without cause. To subject the

prosecutor's challenge in any particular case

to the demands and traditional standards of the

Equal Protection Clause would entail a radical

change in the nature of the operation of the

challenge...

In light of the purpose of the peremptory

system and the function it serves in a plural-

istic society in connection with the institution

of jury trial, we cannot hold that the constitu-

tion requires an examination of the prosecu-

tor’s reasons for the exercise of his challenges

in any given case.” 380 U.S. at 222.

The Court's holding in Part Il of Swain was subse-

quently universally viewed by the State and Federal Courts,

as well as by legal commentators, as holding that a prosecu-

tor’s use of the peremptory challenge in a single case to

remove blacks from the venire was not a violation of the

Equal Protection Clause of the Constitution. See “Use Of

The Peremptory Challenge’, 79 ALR3d 14, §3, p. 27 (1977).

Johnson, Black Innocence And The White Juror, 83 Michi-

gan Law Review 1611 (1985). ("Under Swain v. Alabama, a

prosecutor may deliberately use his peremptory challenges to

exclude all blacks from a jury trying a black defendant’, p

1614); McCray v. New York, 461 U.S. 961, 964 (1983). ("In

Swain, a closely divided Court held that the prosecutor's use

of peremptory challenges to strike Negroes from the jury

panel in one particular case did not deny the defendant equal

protection of the laws.") (Marshall, J. dissenting from denial

of certiorari); Thompson v. United States, US. 105

S.Ct. 443 (1984); ("Swain - whose rule, if without other

virtue, was at least clear...") p. 446; (Brennan, J. dissenting

from denial of certiorari).

The State Courts which declined to follow Swain, on

the basis of State constitutional protections, asserted that

Swain held that a prosecutor could, without violating the

Equal Protection Clause, stnke a black juror on the basis of

his race from the venire in a particular case if that stnke was

for a trial purpose. People v. Wheeler, 22 Cal.3d 258, 148

Cal. Rptr. 890, 583 P.2d 748 (1978); Commonwealth v.

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

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

Even after certiorari had been in the case ¥.

Kentucky, U.S. __, 105 S.Ct. 2111 on April 22, 1985,

the Fifth Circuit, en banc, in United States v. Leslie, 783 F.2d

$41 (1986) reaffirmed its adherence to Swain. In so doing,

the Fifth Circuit stated, “Plainly, the Court in Swain

held that a prosecutor may peremptorily challenge on racial

(or similar group) grounds so long as he does so on ‘consid-

erations related to the case he is trying, the particular defen-

dant involved and the particular crime charged’ Swain.” 783

F.2d at 548.

On April 30, 1986, this Court announced its decision

in Batson v. Kentucky, U.S. , 106 SCtr 1712

(1986). In this case the majority side stepped the Sixth

Amendment issue which was the basis for the grant of

certioran and instead held that it is a violation of the Equal

Protection Clause for a prosecutor in a particular case

peremptonily to excuse from a jury blacks solely on the basis

of race when the defendant is black. The Court specifically

Stated that to the extent Swain was inconsistent with Batson,

Swain was overruled. 106 S.Ct. at 1725, n.25.

The amici represent states whose courts had relied

upon Swain v. Alabama and the continued body of case law

which had reaffirmed the validity of Swain in ruling on equal

protection claims based on use of a prosecutor's peremptory

challenge and whose prosecutors had relied upon Swain and

its progency im exercising their peremptory challenges in a

manner they felt consistent with representing the State in a

particular case. ‘atson v. Kentucky, supra is now the law

and will be scrupulously followed. However, due to the

substantial break with past precedent contained in Batson, the

amici assert that Batson should not be applied retroactively

to cases now pending on direct appeal in the State and

Federal Courts.

UNDER THE "CLEAR BREAK"

STANDARD OF UNITED

STATES V. JOHNSON, BATSON

SHOULD NOT BE GIVEN

RETROACTIVE EFFECT.

As noted in State v. Jackson, NC , 943

S.E.2d 814 (1986), “the Supreme Court has not been com-

pletely consistent i its approach to the question [of retroac

tivity|’. However, it would appear that as to those cases to

which finality! has attached the three factors set out in

Stovall v. Denno, 388 U.S. 293 (1967) are applied to deter-

mine the appropriateness of retroactivity of a new rule of the

Court to a case pending in a collateral proceeding. See

Solem v. Stumes, 465 US. 638 (1984), Allen v. Hardy, _ |

_, 106 S.Ct. 2878 (1986) (per curiam). In matters not final at

the time of the ruling, the approach to retroactivity Te

employed in United States v. Johnson, 457 U.S. $38 (1982

and Shea v. Louisiana, US. . 105 S.Ct 1065 (1985)

should be apphed

In United States v. Johnson, supra, the court re

viewed tS pnor retroactivity decisions and stated that an

analysis of post Linkletter? cases established that the answer

to retroactivity im three narrow categories of cases was not

determined by Stevell critena, but rather through the applica

tion of a threshold test. If the decision merely apphed settled

precedents to new and different factual situations, application

'The Court has defined final to mean where yudgment of conviction

was rendered. availability of appeal exhausted. and ume for pewnon for

cervoan had evther elapsed of cernoram had been denied before the

decision. Lindlewer v. Walker, 381 US. 618 (1965)

“Linklewer v. Walker, 381 US. 618 (1965). After determining

retroactivity was merther required of fortudden by the Constitunon, the

Court in LinAlemer, stated « was necessary t© “weigh the merits and

Gemerts m cach case by looking tw the prior history of the rule in

juestion, its purpose and effect, and whether retrospective operation «

further of retard tts operation to determine whether retroactive appl aon

was called for

of the rule will be retroactive. See, for instance: Dunaway

v. New York, 422 U.S. 200 (1979). Also, retroactive effect

must be given to a ruling that a trial court lacked the basic

authority to convict or punish. See Furman v. Georgia, 408

U.S. 238 (1972). Where, however, the case announces an

entirely new and unanticipated principle of law - a clear

break with the past - the decision will almost invariably be

applied prospectively only. A “clear break" has been recog-

nized only when a decision explicity overrules a past prece-

dent of the Court, or disapproves a practice the Supreme

Court arguably had sanctioned in prior cases or overturned a

long standing and wide spread practice to which the Court

has not spoken, but which a near unanimous body of lower

Court authority expressly approved. The precedent upon

which this “clear break" rule was fashioned was earlier

described as a decision which "constituted a sharp break in

the line of earlier authority or an avulsive change which

caused the current of the law thereafter to flow between new

banks.” United States v. Peltier, 422 U.S. 531, 544 (Bren-

nan, |., dissenting). Likewise, in Solem v. Stumes, 465 U.S.

638 (1984) the Court commented on the concept of "clear

break". The Court noted that because Edwards vy. Arizona,

451 U.S. 477 (1981) did not “overrule any prior decision or

transform standard practice... it [was] not the sort of ’clear

break’ case that is almost automatically non-retroactive.” 465

U.S. at 647.

Under the "clear break" rule set out in United States

v. Johnson, supra, (derived from prior precedent of the

Court, obliquely recognized in Stumes, and expanded beyond

the scope of the Fourth Amendment by Shea), Batson, by its

overruling of Swain v. Alabama, is precisely the type of clear

break case which should be given prosepctive application

only.5 See: Daniel v. Louisiana, 420 U.S. 31 (1975)

3The State cases which have examined the retroactivity issue in

Batson have generally deemed Batson to be nonretroactive on the basis

of “clear break". State v. Jackson, supra. (Batson is a clear break case

since it “explicity rejected to the prior Swain requirement and unequivo-

cally overruled Swain.)" 343 S.E.2d at 825). Bowden v. Kemp, 256 Ga.

70, 344 S.E.2d 233 (1986). ("The Supreme Court of the United States did

continued

(Ruling forbidding exclusion of women from juries not to be

applied retroactively); Gosa v. Mayden, 413 U.S. 665 (1973),

(Ruling granting civilian trials to military personnel accused

of non service related crimes not to be applied retroactively),

De Stefano v. Woods, 391 U.S. 145 (1968) (Ruling guaran-

teeing a right to a jury trial in certain cases not to be applied

retroactively).

Griffith and his amici suggest that Batson cannot be

deemed a “clear break” both because it was allegedly fore-

shadowed by a series of State and Federal cases and because

Batson merely redefines a procedural, evidentiary burden.

Such a view of Batson is untenable. In Allen v. Hardy, a

majority of this Court recognized Batson to be “an explicit

and substantial break with prior precedent.” 106 S.Ct. at

2879. Batson v. Kentucky, supra, (White, J. concurring).

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

(denial of certiorari) and several state and federal cases

certainly suggested that Swain was becoming the target of

criticism, no State or Federal case had, on the basis of federal

law, claimed that Swain no longer controlled how an equal

protection claim on the basis of peremptory challenges was to

be decided. See, for instance Booker v. Jabe, 775 F.2d 76°

(6th Cir. 1985) Yemanded sub nom Michigan v. Booker, o.

85-1028 (June 30, 1986); People v. Wheeler, supra. The ‘act

that the overruling of Swain might have been urged by

continued from above ,

not hold Batson to apply retroactively and we do not view it as being so

intended.” 344 §.E.2d at 234); Siate v. Wagster, 489 So.2d 1299 (La.

App. 1986). Séate v. Calvin Hawkins, S.C. . S.E.2d

____GUune 6, 1986). Likewise, the Fifth Circuit Court of Appeals held

Batson nonretroactive on collateral review in several death penalty cases

due to Batson’s substantial departure from prior precedent. Smith vy.

McCotter, 86-1615, F.2d _—(1986), stay denied, US. _,

(August 21, 1986); Esquivel v. McCotter, 791 F.2d 350 (Sth Cir.), cert.

denied, US. _, 106 S.Ct. 2294 (1986). See also Simpson vy.

Massachusetts, 795 F.2d 216 (ist Cir. 1986). Other States are presently

litigating the retroactivity issue. See People v. Kirk, 98 lll, Dec. 64, 493

N.E.2d 1085 (1986). Some others have simply assumed retroactivity

without examining the issue. People v. Hockett, 503 N.Y.S.2d 995

(1986); Saadig v. State, 387 N.W.2d 315 (1986).

commentators or lower court dicta does not in any way make

Batson \ess a clear break". See, e.g. Desist v. United States,

394 U.S. 244 (1969).

Likewise, Griffin’s claim that Batson, being a mere

realignment of an evidentiary standard dealing with a known

constitutional principle, is not a "clear break" case is merit-

less. On this logic Katz v. United States, 389 U.S. 347

(1967) being a mere shifting of an evidentiary standard

dealing with a known constitutional principle - The Fourth

Amendment - would also have required retroactive applica-

tion. See Desist v. United States, supra. The fact remains,

as this Court stated in Allen v. Hardy, “the rule in Batson v.

Kentucky is an explicit and substantial break with past

precedent’, 106 S.Ct 2880. As such, it is a “clear break" case

and under United States v. Johnson, and Shea v. Louisiana,

is entitled to prospective application even as to cases pres-

ently pending on direct appeal.

2. STOVALL V. DENNO CRITE-

RIA ALSO MANDATE PRO-

SPECTIVE APPLICATION OF

BATSON.

The amici assert that the principles set out in United

States v. Johnson are the rules by which retroactivity should

be determined. However, assuming the Stovall v. Denno‘

three part test is the appropriate measure to use in determin-

ing retroactivity instead of the “clear break" analysis in

United States v. Johnson, Batson still requires prospective

application.

A. THE PURPOSE TO BE SERVED

BY THE NEW STANDARD.

The first prong of the Stovall criteria examines the

purpose for the new standard. Complete retroactive effect is

most appropriate where a new constitutional principle is

4justice Burger, dissenting in Batson v. Kentucky, employed the

Stovall criteria in showing the necessity for prospective application only

of Batson.

10

“designed to avert the clear danger of convicting the inno-

cent." Tehan v. Shott, 382 U.S. 406, 416 (1966). “Where

the major purpose of new constitutional doctrine is to over-

come an aspect of the criminal trial that substantially impairs

its truth-finding function and so raises serious questions

about the accuracy of guilty verdicts in past trials, the new

rule frequently has been given complete retroactive effect.”

Williams v. United States, 401 U.S. 646, 653 (1971).

(Emphasis added). However, as emphasized, the impairment

to truthfinding must be substantial, and not simply incidental

to the main basis for the new standard.

Retroactivity is not required by a determination "that

the old standard was not the most effective vehicle for

ascertaining the truth, or that the truth determining process

has been aided somewhat by the new standard, or that one of

several purposes in formulating the new standard was to

avoid distortion in the process." Gosa v. Mayden, 413 U.S.

at 680.

Batson does have some “bearing on the truth finding

function of a criminal trial". Allen v. Hardy, 106 SCt at 2880.

This, however, is not the major purpose for the new standard

enuciated in Batson. The decision mainly serves other values

- Strengthing the public confidence in the administration of

justice and protecting minority citizens called into jury panels

from discrimination by the State. Batson v. Kentucky, supra.

Whether a Constitutional rule of criminal procedure

sufficiently enhances the reliability of the truth finding

process to require retroactive application is necessarily a

matter of degree. Johnson v. New Jersey, 384 U.S. 719

(1966). The cases in which this Court has found such a

substantial effect on the accuracy of the truth finding process

have generally involved those issues either giving an accused

the ability to present his case effectively. [See Arsenault v.

Massachusetts, 393 U.S. 314 (1969)}; or placing of funda-

mental burdens of proof on an accused. [Hankerson y.

North Carolina, 432 U.S. 233 (1977); Ivan v. City of New

York, 407 U.S. 203 (1972).] Batson simply does not deal

with an issue which has the type of profound impact on the

truth finding function that is present in those cases where this

1]

Court has ordered complete retroactivity such as Hankerson,

Furman, or Gideon v. Wainwright, 372 U.S. 335 (1963).

Amici for Griffith point to studies which indicate

blacks are more likely to be for the “underdog” and suggest

these studies mandate a finding that the truth finding function

had been substantially impaired by pre-Batsan practice since

blacks, allegedly, are more likely to find an accused innocent.

The studies relied upon by Griffin are generally over ten

years old and are based on suspect methodology. See Lock-

hart v. McCree, US. , 106 S.Ct. 1758 (1986).

However, even if the studies are worthy of some considera-

tion, they do not require a finding that peremptory strikes of

blacks substantially impair the truth finding process. The

Studies are no more compelling than the sociological studies

presented in the case of Taylor v. Louisiana, 419 U.S. 522

(1975) which caused this Court to conclude, at footnote 12

"...Controlled studies of the performance of women as jurors

conducted subsequent to Ballard have concluded that women

bring to juries their own perspectives and values that influ

ence both jury deliberation and result." 419 U.S. at 532.

Taylor, in Daniel v. Louisiana, 420 U.S. 31 (1975) was

given prospective application only. In Gosa v. Mayden.

supra, this Court refused to hold retroactive the Court's

decision granting military personnel the right to a civilian

trial with all of the added procedural protections afforded by

a civilian trial. In De Stefano v. Woods, 392 U.S. 631

(1968), the Court refused to hold retroactive the right to a

jury tnal in some cases. This Court also refused to give

retroactive effect to its ruling in Bloom vy. Illinois, 391 U.S.

194 (1968) which extended the right to jury trials in serious

criminal contempt situations. These cases clearly had as

much, if not more, impact on the truth finding function of a

trial as does the new standard in Batson.

If the right to a civilian jury trial, and the right to have

women - 53% of the population - on a jury are not matters

substantially impairing the truth finding function, then the

peremptory exclusion of one or more minority citizens from a

petit jury cannot be so deemed. A defendant is not entitled to

a sympathetic jury - only a fair one. Lockhart v. McCree

supra. Nothing presented by Griffith shows the juries

selected under pre Batson procedures were unfair

The amici for Griffith suggest that, notwithstanding

other criminal cases, the capital punishment cases mandate

that Batson be made retroactive on cases pending direct

appeal because of the “unacceptable risk...infecting the

capital sentencing proceeding... Turner v. Murray, 476 U.S

, 90 L.Ed.2d 27, that results from the exclusion of minori

ties from capital juries." Brief of Amici, NAACP Legal

Defense Fund and American Jewish Congress, p.33. How

ever, while a sentencing jury does make a “highly subjective,

unique, individualized judgment regarding punishment that a

particular person deserves", Caldwell v. Mississippi, 472

U.S. n.7, 105 S.Ct. 2633, 2645-46 n.7 (1985); Turner v.

Murray, 476 U.S. _, 106 S.Ct. 1683, 1687 (1986), this does

not raise an unacceptable risk that a Batson violation will

have a substantial impact on the sentence imposed

In Allen v. Hardy this Court acknowledged the rule in

Satson “may have some bearing on the truth finding function

of a cnmuinal tal.” 106 SCt. 2880. The question, however of

“whether a constitutional rule of criminal procedure does or

does not enhance the reliability of the fact finding process is

necessarily a matter of degree..." Johnson v. New Jersey.

384 U.S. 719, 728 (1966). This Court stated that, in deter

mining retroactivity, the Court “must take into account.

among other factors, of the extent to which other safeguards

are available to protect the integrity of the truth determining

process at tral”. 384 U.S. at 729, see also, Gosa v. Mayden,

supra. Looking at the other factors in place at the time of

trial of these pre-Batson cases, there is no unacceptable risk

that a sentence of death has been inappropriately meted out in

any case where peremptory excusal of blacks from the petit

jury had occurred

A prosecutor's peremptory strikes are not the only

factor molding a capital sentencing jury. The defense coun

Sel, who possesses at least an equal number and often a larger

number of peremptory challenges5, is also exercising strikes

in a manner he perceives is calculated to bring about the

Seating of a jury sympathetic to his point of view. The Trial

Court likewise constitutes a safeguard against an aberrant

Ky. Rule Crim Proc. 9.36, 9.38. 9.40

jury verdict. The Court oversees the voir dire and may

exercise, where appropriate, his authority to uncover bias

among potential jurors. Prior to Turner v. Murray,

__US.___, 106 S.Ct. 1683 (1986), the trial court had the

duty in certain cases to allow voir dire into possible racial

prejudice of the potential jur»rs, Ham v. South Carolina, 409

U.S. 524 (1973) and always ‘ed the discretion to inquire into

racial prejudice even absent a showing “that racial prejudice

might infect [the] trial”. Ristaino v. Ross, 424 U.S. 589

(1976). The Court also exercises his Supervisory authority

during trial to ensure a fair trial. The sentencing hearing

itself, while more subjective than a guilt determination,

requires a jury® to consider a series of specific questions

reaching their sentencing decision thus guiding the jury’s

discretion in non-racial channels. See G ~~ 428

U.S. 153 (1976). Jurek v. Texas, 428 U.S. 162 (1976). The

Court’s instructions to the jury in death sentencing proce-

dures contain admonitions to the jurors with respect to the

necessity to be impartial.

Finally, the majority of the States have by case law,

court rule, or statute, mandated porportionality review of the

sentences of death imposed by the trial courts. Pulley v.

Harris, 465 U.S. 37 (1984). These statutes generally specifi-

cally require that the case be reviewed by the Appellate Court

Sin some States, Judges, not juries make the final punishment

determination in a capital case. Obviously capital sentences from these

States cannot be deemed tainted by possible Batson error. Alabama, Ala.

Code § 13A-5-45 (1982); Arizona, Ariz. Rev. Stat Ann. § 13-703(B)

(1985); Florida, Fla. Stat. § 921.141(3) (1970); Indiana, Ind. Code §

35-S0-2-9e) (1986 Cum. Supp.); Montana, Mont. Code Ann. § 46-18-30

(1985 Supp.); Nebraska, Neb. Rev. Stat. § 29-2520 (1985). In other

States, the trial courts may set aside the jury's sentencing judgments.

See, for instance, California, Cal. Penal Code § 190.4(e) (1977); Arkan-

sas, Ark. Stat. Ann. § 43-2301 (Supp. 1973, Supp. 1975); Colorado, Colo

Rev. Stat. § 16-11-103(1)(a) (1985 Cum. Supp.); Virgima, Va Code §

19.2-264.5 (1983).

14

to ensure that arbitiariness, passion, or prejudice did not play

a role in the sentence of death.7

Porportionality review alone “substantially eliminates

the possibility that a person will ve sentenced to die by the

action of an aberrant jury." Gregg v. Georgia, 428 US. at

206; (Stewart J, plurality). Thus, the other safeguards in

place during a sentencing hearing are sufficient to guard the

integrity of the sentencing process in pre-Batson capital

Cases.

The only basis for suggesting the capital sentencing

had been impaired by pre-Batson practices comes from the

sociological studies cited by Griffith and his amici. How-

ever, these studies are simply too old and too suspect due to

methodology used to serve as a basis for this Court’s deter-

mining Batson must be applied retroactively in the capital

cases in the face of these other substantial safeguards which

ensure reliable sentencing decisions. This Court, on at least

two occasions, has allowed an execution to proceed despite

the existence of a Batson claim made on collateral review.

Larry Smith v. McCotter, 86-1615, _ F.2d. ___ (Sth Cir.

7Ala. Code § 13A-5-53(b)(1) (1982); State v. Vickers, 129 Ariz. 506,

633 P.2d 315 (1981); Collins v. State, 261 Ark. 195, 548 S.W.2d 106

(1977); Colo. Rev. Stat. § 16-11-103(7\(b) (1985 Cum. Supp.); Conn.

Gen. Stat. Ann. § 53a-46b(b) (1985); Del. Code Ann. 11 § 4209(g)(2)(a)

(1979); Ga. Code Ann. § 17-10-35(c)(1) (1982); People v. Fetterly, 710

P.2d 1202 (Idaho, 1985); Ill. Ann. Stat. 38 § 9-1(i) (Smith-Hurd 1986

Supp.); Ind. Code Ann. § 35-50-2-9(h) (Burns 1986 Cum. Supp.); Ky.

Rev. Stat. § 532-075(3)(a) (1984); La. Code. Crim. Proc. Ann. § 905.9

(West 1984); Md. Code Ann. 27 § 414(e)(1) (1982); Miss. Code Ann. §

99-19-105(3)(a) (1985) Cum. Supp.); Mo. Ann. Stat. § 38-565.035(3)(1)

(Vernon 1986 Cum. Supp.); Mont. Code Ann. § 46-18-310(1) (1985);

Neb. Rev. Stat. § 29-2521.03 (1985); Nev. Rev. Stat. § 177.055(2)(c)

(1985); N.H. Rev. Stat. Ann. § 630.5(vii)(9) (1983 Cum. Supp.); N_J.

Rev. Stat. § 2c.11-3(e) (1986 Cum. Supp.); N.M. Stat. Ann. § 30-20A

~4(c)(3) (1978); N.C. Gen. Stat. § 15A-2000(d)(2) (1983); Okla. Stat.

Ann. 21 § 701.13(c)(1) (1983); 42 Pa. Cons. Stat. Ann. § 9711(h)(3\i)

(1982); S.C. Code Ann. § 16-3-25(c) (1976); Tenn. Code ann. § 39-2-

205(c) (1982); State v. Wood, 648 P.2d 71 (Utah, 1982); Va. Code §

17-110(c)(1) (1986 Cum. Supp.); Wyo. Stat. § 6-2-103(d) (1977).

15

1986), stay denied, U.S. (August 21, 1986).

Esquivel v. McCotter, 791 F.2d 350 (Sth Cir. 1986), cert.

denied. U.S. , 106 S.Ct. 2294 (1986). These cases

alone indicate that this Court has already determined on

collateral review what the States now claim - that Batson has

no substantial influence on the truth finding function of a jury

even in a capital proceeding. Thus, the first prong of the

Stovall v. Denno test fully supports a pros pective application

of Batson.

B. LAW ENFORCEMENT OFFICIALS

JUSTIFIABLY RELIED ON THE

OLD STANDARD IN SWAIN.

The second prong of the Stovall test requires the

Court to consider the extent of the reliance by law en-

forcemnt authorities on the old standards. The amici States

contend the reliance prong mandates prospective application

of Batson.

As the case law from all the Federal circuits and the

State courts indicate, up until the day Batson was decided,

the courts and prosecutors relied on the Swain standard. See,

for instance United States v. Leslie, supra. See also Batson

v. Kentucky, supra, 106 S.Ct. at 1714-1715, n.1 (1986).

“There is no question that prosecutors, trial judges, and

appellate courts throughout our State and Federal systems

justifiably have relied on the standard of Swain.” Allen vy.

Hardy, 106 S.Ct. 2881. Such reliance by law enforcement on

the Swain decision strongly supports the prospective applica-

tion of Batson.

Griffith and his amici suggest, however, the States are

not entitled to reliance on past precedent since Swain was

simply being used to cloak prosecutors’ racist use of peremp-

tory challenges - a practice forbidden under Strauder v. West

Virginia, 100 U.S. 303 (1880). Thus, opine Griffith’s amici,

prosecutors cynically used the exceedingly burdensome

evidentiary standard suggested in Part III of Swain to insulate

themselves from what they knew to be the improper use of

peremptory strikes and should not be given the benefit of

prospective application of Batson.

16

As noted earlier, the almost universal interpretation of

Swain v. Alabama was that a prosecutor could, without

violating constitutional guarantees of the Equal Protection

Clause, peremptorily excuse blacks in a particular case if the

prosscutor felt on a case specific basis that a black juror

would be unfavorable to the State. See, for instance McCray

v. New York, 461 U.S. 961, 964 (1983) (Marshall, J. dissent-

ing). Thus, the fact that a prosecutor in a particular case may

have used race as a basis for removing a juror from the petit

jury where the prosecutor felt this was proper for the case’s

outcome does not show a disregard for the Constitution as

interpreted by this Court in Swain any more than the defense

lawyer who struck all whites in a case on the assumption

whites would be more harsh on a black defendant showed a

disrespect for the Constitution. Rather, it simply shows a

reasonable reliance - now shown to be wrong - on the appar-

ent holding of this Court and the lower Courts which have

interpreted Swain. The Griffith’s amici’s argument that

prosecutors acted in bad faith, then, simply will not hold up

to analysis.

Nor is a prosecutor’s - or a lower court’s - reliance on

Swain unreasonable in the face of the expressions of discon-

tent about Swain which began to appear with increasing

frequency in the last ten years and in the face of the grand

jury cases dealing with equal protection claims. The State

and Federal Circuit Courts continued to reaffirm Swain’s

validity. This Court continued to deny certiorari in cases

raising Swain-as an issue. See, for instance, Gilliard y.

Mississippi, 464 U.S. 867 (1983) (denial of certiorari);

Thompson y. United States, supra, (denial of certiorari);

McCray v. New York, supra, (denial of certiorari). This

Court continued to cite Swain with apparent approval,

Regents of University of California v. Bakke, 438 U.S. 265,

319, n.53 (1978) or distinguish Swain without Suggesting its

invalidity, Castaneda vy. Partida, 430 U.S. 482, 502, n.1

(1977) (Marshall, J. concurring).

| The fact that Swain was much criticized in Cases and

by legal commentators cannot render law enforcement’s

reliance on Swain’s apparent holding unreasonable. Prosecu-

tors and State Court Judges ought not be charged with the

duty to divine when prior precedent of this Court will be

m BEST AV

17

changed simply on the basis of criticism of that prior prece-

dent. The Blackstonian notion that "the duty of the Court

was not to pronounce a new law, but to maintain and ex-

pound the old one", United States v. Johnson, supra, 542, |

W. Blackstone Commentaries 69 (15th ed. 1809), is equally

applicable to the State’s prosecutors and lower State and

Federal courts.

The reliance on the Swain v. Alabama holding

obviously has left the majority of prosecutors unprepared to

defend their use of peremptory strikes under the Batson

standards. What Swain apparently approved in Part II of the

decision, Batson now deems unconstitutional. In face of the

overwhelming case law and commentary supporting the view

that Swain, as a matter of substantive constitutional law

allowed challenging blacks due to their race in a particular

case if the challenge was related to a prosecutor’s view of the

outcome of the case, this Court should recognize that prose-

cutors and lower courts were acting in good faith in relying

on Swain. This Court should hold that this reliance mitigates

against retroactive application of Batson.

C. RETROACTIVE APPLICATION OF

THE BATSON DECISION WOULD

SERIOUSLY DISRUPT THE AD-

MINISTRATION OF JUSTICE.

The last prong of the three part Stovall test requires an

analysis of "(c) the effect on the administration of justice of a

retroactive application of the new standards." Stovall y.

Denno, 388 U.S. at 297. This criteria also requires a pro-

spective application of Batson even as to cases now pending

on direct appeal.

This Court has already recognized that "retroactive

application of the Batson rule on collateral review of final

convictions would seriously disrupt the administration of

justice." Allen v. Hardy, supra, 106 S.Ct. at 2881. While

Allen v. Hardy has relieved the States from the obligation of

litigating the use of challenges on collateral review, holding

Batson retroactive for cases still pending on direct review

will have a profound impact on the Court systems in the

amici states. In Stovall the Court, in holding United States v.

LABLE COPY

— i

18

Wade, 388 U.S. 218 (1967) nonretroactive, relied on the fact

that numerous hearings would have to be held "with prob-

lems of unavailability of witnesses and dim memories". 388

U.S. at 300. This concern is no less real in the present matter

before the Court. The evidentiary standards for proving an

equal protection violation in jury selection have been radi-

cally shifted. Cases in which the offers of proof were ade-

quate to suffice as to a Swain claim are now Clearly inade-

quate. See State v. Jackson, supra. Since it would appear

that the proof of a prima facie case can be made even if all

the jurors finally seated are not white, see Commonwealth y.

Soares, supra, and since it appears that using the majority of

the States’ challenges in a case on black jurors alone raises a

prima facie presumption of discrimination, Batson v. Ken-

tucky, the vast majority of cases now raising a Batson claim

will have to be remanded to the trial courts for hearings. This

will obviously engender a great deal of litigation in which

voir dires will have to be re-constructed years after the fact

and where the State will be required to “explain reasons for

challenges, a task that would be impossible in virtually every

case since the prosecutor, relying on Swain, would have had

no reason to think such an explanation would some day be

necessary." Allen v. Hardy, 106 S.Ct. at 2881. Even notes

taken during voir dire to protect against such an eventuality

could be insufficiently precise to meet the "clear and reason-

ably specific" requirement of Batson. 106 S.Ct. at 1724,

n.20. In the face of such Specificity requirements, many

deligent prosecutors will be unable to meet the burden

required. This will necessitate new trials in many cases in

which the evidence of guilt was overwhelming - a clearly

unwarranted expenditure of precious judicial resources.

The amici for Griffith suggest there will be little

impact on the administration of justice if the Court limits

Batson’s retroactivity to those cases presently pending on

direct appeal due to the ability of the State to assert proce-

dural bar if the issue has not been perfected on appeal.

However, even if procedural bar can be successfully asserted,

Reed v. Ross, 468 U.S. 1 (1984), the determination of that

issue will engender much litigation. Further, if this ruling

was so foreseeable that procedural bar is appropriate, then

litigation on the issue of ineffective assistance of counsel for

failure to assert a Batson issue is clearly to be anticipated in

19

the States’ courts. Thus, while the disruption of the system

of justice is less due to the barring of the Batson issue on

collateral review, the courts of the amici states will still be

significantly burdened with hearings the prosecutors will be

ill equipped to defend against if this Court gives Batson any

retroactive application. The outcome of many of the hearings

will be new trials simply because a prosecutor or trial judge

did not anticipate correctly what type of record he had to

make prior to the decision in Batson being announced.

Moreover, the procedure to be employed to determine

a Batson violation is uniquely unsuited for retroactive

application. The Court, modifying the test employed to prove

purposeful discrimination in a grand jury selection or in Title

VII case, stated:

...a defendant may establish a prima facie case

of purposeful discrimination in the selection of

the petit jury solely on evidence concerning

the prosecutor’s exercise of peremptory

challenges at the defendant’s trial. To estab-

lish such a case, the defendant must first show

that he is a member of a cognizable racial

group...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...that peremptory challenges constitute a

jury selection practice that permits those to

discriminate who are of a mind to discriminate

...Finally the defendant must show that these

facts and any other relevant circumstances

raise an inference that the prosecutor used that

practice to exclude veniremen from the petit

jury on account of their race. This combina-

tion of factors in the empanelling of the petit

jury...raises the necessary inference of purpose-

ful discrimination...Once the defendant makes

a prima facie showing the burden shifts to the

State to come forward with a neutral explana-

tion for challenging black jurors...the prosecu-

tor’s explanation need not rise to the level of

justifying a challenge for cause...But the

20

prosecutor may not rebut the defendant’s

prima facie case...by stating merely he chal-

lenged the jurors of the defendant’s race on

the assumption..that they would be partial to

the defendant because of this shared race... The

prosecutor therefore must articulate a neutral

explanation related to the particular case to be

tried. The trial court then will have the duty to

determine if the defendant has established

discrimination. 106 S.Ct. at 1722-1724.

This test puts much reliance on the credibility deter-

minations of the trial court to make the determination about

the prosecutor’s motives in using his peremptory strikes.

Batson suggests a finding of purposeful discrimina-

tion by a trial judge would be a finding of fact entitled to

great deference. Batson v. Kentucky, 106 S.Ct. at 1724,

n.21; See also Anderson v. Bessemer City, 470 U.S. :

105 S.Ct. 1540 (1985). These credibility determinations in

turn are to be gleaned from supervising voir dire (n.22), and

by observing such things as the “pattern” of strikes against

black jurors, or the prosecutor’s questions and statements

during the voir dire. However, such credibility determina-

tions, as this Court has recognized in reviewing challenges

for cause under Witherspoon v. Illinois, 391 U.S. 510 (1968)

are difficult to make based on a cold transcript of a voir dire

since the demeanor of the juror cannot be recorded.8 Justice

Powell, writing for the majority in Patton v. Yount, noted

“Demeanor plays a fundamental role not only in determining

jury credibility, but also in simply understanding what a

potential juror is saying...Demeanor, inflection, the flow of

questions and answers can make confused and conflicting

utterances comprehensible.” Further, as stated in Reynolds vy.

United States, 98 U.S. 145, 156-157 (1879), "the manner of

the juror while testifying is often times more indicative of the

real character of his opinion than his words. That is seen

below but cannot always be Spread upon the record." De-

See

8Darden v. Wainwright, US. ___, 106 S.Ct. 2464 (1986)

Wainwright v. Witt, 469 US. » 105 S.Ct. 844 (1985 ) Patton v. Yount,

467 U.S. 1025 (1984).

21

meanor as much as the actual answers given is often the basis

for a prosecutor’s peremptory challenge decisions. Inflec-

tions in the voice of the juror and prosecutor, the physical

appearance of the juror, the nonverbal interaction between the

juror and others in the courtroom - the body language -

simply cannot be adequately memorialized in the transcript,

yet these nonverbal considerations are imperative for a fact

finder to know in order to make a reliable credibility determi-

nation as to the reasonableness in assuming a prima facie

case has been established or that the neutral reasons proffered

by the prosecutor are reasonable and truthful. "Trial Courts

face the difficult burden of assessing prosecutors’ motives”:

Batson v. Kentucky, 106 S.Ct. at 1718, (Marshall, J. concur-

ring). This Court ought not make this task more burdensome

by requiring courts to attempt to reconstruct long finished

voir dires. Reading a voir dire transcript? and then listening

to a prosecutor trying as much as two years after the fact to

articulate "seat of the pants instincts", Batson, 106 S.Ct. at

1745, (Rhenquiest, J. dissenting) simply will put the trial

court in no better position than an appellate court in deter-

mining whether purposeful discrimination has been shown.

As this Court has noted, “despite its importance, the ade-

quacy of voir dire is not easily ubject to appellate review..."

Rosales - Lopez v. United Stu.es, 451 U.S. 182, 188 (1981).

“Conclusions as to impartiality and credibility" [must be

reached]" by ... evaluations of demeanor evidence and of

responses to questions..." Rosales-Lopez v. United States,

451 U.S. at 188.

An attempt to make a determination of a Batson issue

after the trial is over and the jury is dismissed will deprive the

fact finder of the majority of the components he needs to

make a reliable credibility decision. Such unreliability ought

to militate against retroactive application of Batson since the

administration of justice will be disrupted without gaining

any truly reliable determinations of the existence of Batson

violations.

9A transcript of the voir dire may not even exist in many cases. See,

for instance N.C. Gen. Stat. § 15A-1241(a)(1) (1983).

22

As shown, retroactive application of Batson will work

a hardship on prosecutors and courts in reconstructing long

finished voir dires and explaining prior actions. The retroac.

tive application of Batson will also work a considerable

hardship on another extremely important segment of the

System - the victims and witnesses of the crimes.

This Court, in both Morris y. Slappy, 461 U.S. 1

(1983) and United States v. Hastings, 461 U.S. 499 (1983).

recognized that the rights of victims and witnesses to be free

of the renewed trauma of a retrial was an important consid-

eration to weigh in determining when to use the Court’s

Supervisory powers. As stated in Morris vy. Slappy, supra:

..In the administration of criminal justice,

courts may not ignore the concerns of vic-

tims...this is especially so when the crime is

one calling for public testimony about a

humiliating and degrading experience

...Precisely what weight should be given to the

ordeal of reliving such an experience...need

not be decided now; but that factor is not to be

ignored by the courts. The Spectacle of

repeated trials to establish the truth about a

single criminal episode inevitably places

burdens on the system in terms of witnesses.

records, and fading memories, to Say nothing

of misusing judicial resources.” 461 U.S. at

15.

In retroactivity decisions, since the Constitution

neither requires nor prohibits retroactive application of a

ruling, the Court must engage in a balancing of interests. In

looking at the impact on the administration of justice compo-

nent, this Court should give great weight to the impact of

retroactive application of this case to the truly innocent

persons in the justice system - the victims of the crime and

their families and the witnesses who will once more have to

interrupt their lives and try to recall events they would

probably rather forget. Sparing the victims and witnesses the

agony of retrial should be an important component of this

Court’s weighing the effect of Batson on the administration

of justice, especially since, as argued earlier, the new

constitutional rule has only a minimal impact on the truth

finding fuction of a trial. Analysis of the third consideration

in the Stovall test, like the first two considerations, clearly

Supports a finding by this Court that Batson ought not be

applied retroactively to cases on direct appeal.

CONCLUSION

For nearly twenty years the States followed what they

reasonably believed to be the holding in Swain in using

peremptory challenges during jury selection. Policy consid-

erations require that the States’ good faith reliance in Swain

be accorded deference since a retroactive application of this

case will require many retrials. Since Batson represents such

a clear break from prior precedent and since the rule in

Batson will have minimal effect on the truth finding process,

the amici request that this Court not apply Batson retroac-

tively to cases still pending on direct appeal.

Respectfully submitted,

LACY H. THORNBURG

Attorney General

Joan H. Byers

Special Deputy Attorney General

N.C. Department of Justice

P. O. Box 629

Raleigh, NC 27602

919-733-6012