# Amicus Curiae Brief — Brown v. United States

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0262%3A09

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1986
- **Citation:** 476 U.S. 1157

## Text

Supreme Court U9,
FIL p

ee me

| AUG 1 Weg
IN THE

OSEPH F
>

Nos. 85-5221 and 85-5731

Supreme Court of the United Sthtes

OctToBper TERM, 1985

RANDALL LAMONT GRIFFITH.
Petitioner,

_OMMONWI ALTH

Respondent

Davis Brown.

Petitioner.

YITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE at
KENTUCKY >:

IN NO. 89-0221 AND

PREME COURT OF
UNITED STATES COURT

d-D/3)

rt rH!

OF APPEALS FOR THE TENTH CIRCUI1

IN NO,

BRIEF OF THE NAACP LEGAL DEFENSE &
EDUCATIONAL FUND, INC., AND THE AMERICAN
JEWISH CONGRESS AS AMICI CURIAE IN

SUPPORT OF PETITIONERS

JuLIus LEVonN!
"CHARLES STEPHEN
99 Hudson Street
loth Floor
New York, N.Y. 10013
212) 219-190

((HAMBERS
RALSTON

Lois WALDMAN STEVEN L. WINTER*
The American Jewish University of Miami
Congress School of
15 East 84th Str

sTreet

Law
P.O. Box 248087
New York, N.Y. 10028 Coral Gables. Fla

33124-8087
309) 284.2392

Aff rneyus for the NAACP
Leaal Defense

d Educational
Fy nd. Tne

QUESTION PRESENTED
What should be the extent of the

retroactive application given the decision

in Batson v. Kentucky, 476 U.S. , 90

L.Ed.2d 69 (1986)?

TABLE OF CONTENTS

Question Presented ..... SOGNO686006066 i
Table of Authorities ..... peeeeccococees iii
BUOUORS GE BAGS ccccccccccccccccecace 1
Summary of Argument ..........cccccuece 4
Argument ........ ecccceccces Ce ecececccces 7

I. Because the Exclusion of Blacks and
Other Minorities Has a Direct
Impact on a Jury's Decision-making
that Raises Serious Questions about
the Accuracy of the Resulting
Verdict, and Because Prosecutors'
Invocation of the Practice Was Not
in Good Faith, the Rule of Batson

v. Kentucky Should Be Retroactive.. 7

A. The Exclusion of Blacks from
Criminal Juries Affects in
Fundamental Ways the Accuracy and
Reliability of the Decision-making
DOE coeseccecccceces cecccecsseee lL]

B. The Reliance by Prosecutors on
Swain Does Not Support Prospective
Application of the Standards
Enunciated in Batson .............. 25

C. The Potential Effect on the
Administration of Justice is

not so Overwhelming as to Override

the Foregoing Factors ............. 30

ii

II. The Nature of the Sentencing
Decision in Capital Cases Is Such
that the Exclusion of Minorities
from the Jury Necessarily Dimi-
nishes Its Reliability, Requiring
Retroactive Application of Batson
to Capital Sentencing Proceedings... 33

GUD See e sees ecceeesececccccecccen 38

iii

TABLE OF AUTHORITIES
Cases: Page

Adams v. Texas, 448 U.S. 38
(1980) eeeoeeeeeeeeveeeeeeeeeeses 18-19,21

Alexander v. Louisiana, 405 U.S.

625 (1972) eeeeostveeeeeeeeeese eee 2,29
Allen v. Hardy, U.S. ‘
NO. 85-6593 (1986) ...cccccace 10

Arlington Heights v. Metropolitan
Housing Development Corp.,

429 U.S. 252 (1977) wicccccccce 28-29
Arsenault v. Massachusetts,
393 U.S. 5S (1968) wcccccccceee 12
Barclay v. Florida, 463 U.S. 939
(1983) Se@eeeeeoeeoeeoeeeeoeeeeeeees 34
Ballard v. United States, 329 U.S.
187 (1946) *eeeeeee#ee#e. *eeeeeeees 24
Batson v. Kentucky, 476 U.S. P
90 L.Ed.2d 69 (1986) ......... passim

Blackburn v. Alabama,
361 Welle 199 (1960) *eeeeeeees 12

Bob Jones University v. United
States, 461 U.S 574 (1983) ... 27

Brown v. Louisiana, 447 U.S. 323
(1980) tere eeeerereseseesseees 148,22, 24-25, 26

Caldwell v. Mississippi, 472 U.S.
, 86 L.Ed.2d 231 (1985) ... 33

Castaneda v. Partida, 430 U.S.
482 (1977) *eeeeeeeeeeee *- e+ fe @ @ @& 6 29

Cases: Page

Davis v. Georgia, 429 U.S. 122
(1976) eeeeeeoeeeeeeeeeeeeeenesese 36

Desist v. United States, 394 U.S.
Dee Gee Sccndanccdvececcec: 10

DeStefano v. Woods, 392 U.S. 631
[aes 66e6ees< bueeé066 6066668 25,26

Engle v. Isaac, 456 U.S. 107
ti Pere ryrTrerrT TTT Tree eee 32

Esquivel v. McCotter, 791 F.2d
350 (5th Cir. 1986) .......... 32

Evans v. Mississippi,
No. 85-6932, cert. denied,
54 U.S.L.W. 3810 (June 9,
1986) ..... céeneeeens ee wawss 3,30

Gordon v. United States, No. 85-
7726 (llth Cir.) *eeeeeeeeeeeees 2

Gregg v. Georgia, 428 U.S 153
(1976) *oeeeeeeeeeeeeeees *seeeeees 35

Hankerson v. North Carolina,
SSS Gee BBS CASTF) cccccccece 21,31,32

Ivan V. v. City of New York,
407 U.S. 203 [ ghbbeenees 21

Johnson v. New Jersey, 384 U.S.
Var GREED 600064006000 6660600 11

Jones v. Barnes, 463 U.S. 745
(1983) *eeeeeeeeeeeeeeeees *ee8e8ee Gg

Keeble v. United States,
412 U.S. 205 (1973) .....eeee. 15

Cases: Page

Linkletter v. Walker,
381U.S. 618 (1965) teeeeeeeee7,10,11,12, 37

Mackey v. United States,
401 U.S. 667 a 8,9

McCray v. New York, 463 U.S.
Pee COUGE) ceccccecsbecoccccce 27

McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973) .......... 29

Parklane Hosiery Co. v. Shore,
439 U.S. 322 Eee 14

Peters v. Kiff, 407 U.S. 493
(1972) "Seee ese eceeseeeeneneeesea 18

Shea v. Louisiana, 470 U.s. ‘
84 L.Ed.2d 38 (1985) ......... 4,7,11

Stovall v. Denno, 388 U.S. 293
(1967) "PFSSee COCCOCBECOCC OOO 8 Oe 10

Swain v. Alabama, 380 U.s. 202
(1965) "eT C0886 666 06600 80 6 6 o @ 2,5,26,28

Taylor v. Louisiana, 419 U.S. 522

(1975) tjti-ti-@¢b:.A5f2h eee e © © 2 2 13-14
Trop v. Dulles, 356 U.S. 86

(1958) "TeV Ceese 82eeeeeeeeseeeeeta 35-36
Turner v. Murray, 476 U.S. :

—_— —

90 L.Ed.2d (1986) ......0..... 33,34-25

United States v. Johnson,
457 U.S. 537 [Ey 6€66066<66¢%« 4,8,12

United States v. The Schooner
Peggy, 5 U.S. (1 Cranch) 103 4,10
SE 6606606 seb csdeceeoccccce

vi

Cases: Page

Vasquez v. Hillery, 474 U.S. ‘

88 L.Ed.2d 598 (1986) ........ 14,18
Wainwright v. Sykes, 433 U.S. 72

(1977) eeoeoeeeoeeoeoe eee eeeeeeeeees 31
Washington v. Davis, 426 U.S.

229 (1976) e@eseeeeoeceeeeeeeeeees 29
Witherspoon v. Illinois,

391 U.S. 510 (1968) .......... 36,37
Zant v. Stephens, 462 U.S. 862

FO eee Te CTTT Tree re eeere 33-34
ot utho les:

G. Allport & L. Postman,
THE PSYCHOLOGY OF RUMOR

(1965) eeeeeeeeeeeeeeeees see ee 17
Damaska, Presentation of Evidence
- s

’
123 U.Pa.L.Rev. 1083 (1975)..15-16,19-20

H.R.Rep. No. 1076, 90th Cong.,
2d Sess., reprinted in 1968
U.S. CODE CONG. AND AD. NEWS

1792 eoeeeeseeceaeeeeeoeeeeeaeeeeee 14
O. Holmer, COLLECTED LEGAL PAPERS
(192C) eeeeeceeoeeeoeeeoeoeeeeee ees 14
Johnson,
, 83 Mich.
L. Rev. 1611 (1985) .......... 17

H. Kalven, Jr., & H. Zeisel,
THE AMERICAN JURY [SPOen ccose 19-22,23-24

vii

Authorities: Page

Deposition of Edward J. Peters
(April 12, 1985), in Edwards v.
Thigpen, Civil Action No.

J83-0566(B)(S.D. Miss.) ...... 12-13
Priest & Klein, The Selection
13 J. Legal Stud. 1 (1984) ... 9

Priest, The Common Law Process

Rules, 6 J. Legal Stud. 65
SUVS 666660868666 006 TrTTTirT 9

viii

Nos. 85-5221 and 85-5731

IN THE
SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1985

———s

RANDALL LAMONT GRIFFITH, PETITIONER
Vv.

COMMONWEALTH OF KENTUCKY, RESPONDENT

WILLIE DAVIS BROWN, PETITIONER
Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE SUPREME COURT OF KENTUCKY IN
No. 85-5221 AND TO THE UNITED STATES
COURT OF APPEALS FOR THE TENTH CIRCUIT
IN No. 85-5731
BRIEF OF THE NAACP LEGAL DEFENSE & EDUCA-
TIONAL FUND, INC., AND THE AMERICAN JEWISH
CONGRESS AS AMICI CURIAE IN SUPPORT OF
PETITIONERS

INTEREST OF AMICI*
The NAACP Legal Defense and E“*ucational

Fund, Inc., is a non-profit corporation

* Letters from the parties consenting to

the filing of this brief have been lodged
with the Clerk of the Court.

organized under the laws of the State of
New York in 1939. It was formed to assist
blacks to secure their constitutional
rights through the prosecution of lawsuits.
Under its charter, the Fund renders legal
aid to impoverished blacks suffering
injustice by reason of race. For many
years, its attorneys have represented
parties and participated as amicus curiae
before this Court and in the lower state
and federal courts.

The Fund has a long-standing concern
with the exclusion of blacks from jury
service and the impact of that practice on
the criminal justice system. It has raised

jury discrimination claims in appeals from

criminal convictions, gee, @.g., Swain v.
Alabama, 380 U.S. 202 (1965); Alexander v.
Louisiana, 405 U.S. 625 (1972), and

currently represents clients who have been

affected by this practice. See, e.g.,
Gordon v. United States, No. 85-7726 (11th

Ciz.) (pending); Evang vy. Mississippi, No.
85-6932, cert. denied, 54 U.S.L.W. 3810
(June 9, 1986).

The American Jewish Congress is a
national organization of American Jews
founded in 1918. It is concerned with the
preservation of the security and
constitutional rights of all Americans.
Since its creation, it has vigorously
opposed racial and religious discrimination
in all areas of American life, including

the administration of justice.

SUMMARY OF ARGUMENT

At the least, decision in the two cases
before the Court should follow from the

Court's recent retroactivity decisions,

gee, @.g., Shea v. Louisiana, 470 U.S. __,
84 L.Ed.2a 38 (1985); United States v.
Johnson, 457 U.S. 537 (1982), which apply
new constitutional decisions to all
similarly situated cases still pending on
direct appeal. This approach is strongly
recommended by three considerations: (1) it
promotes predictability in constitutional
adjudication; (2) it strikes a reasonable
balance between the concerns of equity and
stability; and (3) it is rooted in
judicial practice with a pedigree nearly as
old as the Republic itself. See United
States v, The Schooner Peggy, 5 U.S. (1
Cranch) 103 (1801).

Amici write separately, however, to put

before the Court their views concerning the

broader reach of the decision last Term in

Batson v. Kentucky, 476 U.S. _, 90 L.
Ed.2d 69 (1986). The inclusion of blacks
and other minorities on criminal juries is
important not merely for the social values
of participation, legitimacy, and
nondiscrimination. A proper understanding
of what juries do and how they do it leads
inevitably to the conclusion that the
exclusion of blacks has a direct and
demonstrable impact on the actual outcomes
of jury verdicts -- that is, on the truth-
finding process. Thus, full retrospective
application is called for.

The rule announced in Batson is not, in
its own terms, a "clear break" with past
law. The exclusion of potential jurors
solely on the basis of their race is and
was a grave constitutional wrong in which
no conscientious prosecutor should have
indulged -- Swain v. Alabama, 380 U.S. 202
(1965), notwithstanding. Accordingly, the

good faith reliance by prosecutors on past

precedent does not weigh in favor of
limited application of the decision in
Batson.

Because of the nature of the sentencing
decision in capital cases, involving as it
does the application of value judgments to
a highly discretionary decision, the
exclusion of blacks and other minorities
has a heightened impact on the decision-
making process in those cases. Accordingly,
Batson should be fully retroactive to all
challenges to death sentences imposed or

recommended by juries from which blacks

were improperly excluded.

ARGUMENT

I. BECAUSE THE EXCLUSION OF BLACKS AND
OTHER MINORITIES HAS A_ DIRECT
IMPACT ON A JURY'S DECISION-MA¥ViNG
THAT RAISES SERIOUS QUESTIONS ABOUT
THE ACCURACY OF THE RESULTING
VERDICT, AND BECAUSE PROSECUTORS '
INVOCATION OF THE PRACTICE WAS NOT
IN GOOD FAITH, THE RULE OF BATSON

Vv. KENTUCKY SHOULD BE RETROACTIVE _
"(Rjesolution of the question of

retroactivity [ijJs not automatic[]}...."

Brown Vv. Louisiana, 447 U.S. 323, 327
(1980) (plurality opinion). "Each

constitutional rule of criminal procedure
has its own distinct functions, its own
background of precedent, and its own impact
on the administration of justice...."

Linkletter v. Walker, 381 U.S. 618, 728

(1965). Nevertheless, amici respectfully

submit that the Court should at least
follow its recent practice of holding new
constitutional decisions retroactive to

cases not yet final. See, @.c., Shea v.
Louisiana, 470 U.S. , 84 L.Ed.2a 38

(1985); United States v. Johnson, 457 U.S.
537 (1982); Brown v. Louisiana, supra.
Adherence to this practice serves
several important values. First, it
provides predictability in constitutional
adjudication, avoiding the appearance of
inconsistency and unfairness that results

from the changing contours of retroactivity

doctrine. See United States v. Johnson, 457

U.S. at 547; Mackey v. United States, 401
U.S. 667, 677 (1971) (Harlan, Jes
dissenting). Second, it strikes A

>”

reasonable balance between the concerns of
stability in the law, on one hand, and
equity, on the other. See United States v.
Johnsen, 457 U.S. at 555-56.

Third, it promotes the legitimacy of
the constitutional decision-making

process; full prospectivity creates the

1 A contrary approach would undermine
constitutional adjudication in another way
not explored in the text. Without some
incentive for litigants to raise an issue
that previously had been rejected by the

appearance of the judiciary "fishing one
case out of the stream of appellate review,
using it as a vehicle for pronouncing new
constitutional standards, and chen
permitting a stream of similar cases
subsequently to flow by unaffected by that
new rule...." Mackey, 401 U.S. at 678-79
(Harlan, J., dissenting). Finally, it is

consonant with "basic judicial

courts, outmoded, incorrect, or inefficient
rules never would be challenged. Without
some incentive, it would always be too
"costly," -- the issue would be displaced
in the litigant's brief by other issues
more likely to succeed or, at least, more
likely to command the attention of an

appellate court. See Jones v. Barnes, 463
U.S. 745 (1983).

Obviously, the incentive that motivates
litigants to challenge such rules is the
possibility of victory on appeal. A pure
prospectivity rule diminishes severely that
incentive by limiting to a universe of one
the number of litigants who possibly may
benefit from a rule change. The predictable
result is a dearth of necessary challenges
to outmoded doctrines and the potential
ossification of the law. See Priest &
Klein,

, 13 J. Legal Stud. 1 (1984);
Priest, The Common Law Process and the
Selection of Efficient Rules, 6 J. Legal
Stud. 65 (1977).

tradition...." Desist v. United States, 394
U.S. 244, 258 (1969) (Harlan, Jee
dissenting); see United States v. The

Schooner Peggy, 5 U.S. (1 Cranch) 103,
110 (1801).

It is our position, however, that the
decision in Batson should be accorded full
retroactive effect under the _ standards
developed in Linkletter and its progeny. @
In the sections that follow, we discuss the
tripartite standard governing retroactivity
articulated in Stovall v. Denno, 388 U.S.
293, 297 (1967),2 as interpreted in

subsequent cases.

2 Because the Court now has the
benefit of full briefing and argument on
this issue, it would be appropriate to
reconsider its contrary decision in Allen

Vv. Hardy, U.S. , No. 85-6593 (June
30, 1986).

3 The Stovall Court expressed the
considerations as follows: "(a) the
purpose to be served by the new standard;
(b) the extent of reliance by i law
enforcement authorities on the old
standards, and (c) the effect on the
administration of justice of a retroactive
application of the new standards." Id. at 297.

10

The use of peremptory challenges to
remove potential jurors on the basis of
their race violates core constitutional
values concerning equal protection and
public participation in the criminal
justice system; it undermines as_ well
public confidence in the legitimacy and
fairness of that system. But it does not
follow that these are the primary values
implicated by this unconstitutional
practice.

Common sense suggests that the rule of
Batson is neither a mere prophylactic--
like those at issue in Johnson v, New
Jersey, 384 U.S. 719 (1966), and Shea v,
Loujsiana -- nor a product solely of

policy concerns extrinsic to the accuracy
and reliability of the trial process--
like those at issue in Linkletter and

11

United States v. Johnson. Rather, like the

rule against coerced confessions, it
serves “a complex of values," Blackburn v,.
Alabama, 361 U.S. 199, 207 (1960), some of
which bear heavily on the truth-finding

process and, therefore, mandate retroactive

effect. Linkletter, 381 U.S. at 638; gee,
e.g., Arsenault v. Massachusetts, 393 U.S.
5 (1968).

This is clear when one considers the
nature of the practice that Batson
condemned. Prosecutors who used their
peremptory challenges to strike black
potential jurors did so not primarily out
of blind racial animus; they did so because
they believed that it affected the outcomes
of their cases. Thus, one prosecutor
testified about his former practice and the
reasons for his change:

So we made a determination that we were

not going to in any way discriminate
against blacks; we were going to try to

keep black jurors..., and the longer we
tried that, the more discouraged we got
about it.... We just had to abandon

12

that philosophy. * * * And the defense
attorneys can tell you very well when
that happened, because it's when they
started losing more cases.

Edwards v. Thigpen, Civil Action No. J 83-
0566(B)(S.D. Miss.), Deposition of Edward
J. Peters at 31, 34 (April 12, 1985).

All jurors are not fungible; the
deliberate exclusion of minorities from
criminal juries has a direct and
demonstrable effect on the actual outcomes
of criminal cases. The reasons are readily
apparent when one considers both what a
jury does and how it does it.

It is simplistic to view the jury
solely as the finder of "facts" subject to
measurement by some objective standard of
"truth" or "falsity." Hardly any criminal
case is s0 one-dimensional. Nor is the
jury's judgment limited to the binary
alternatives of "guilt" or "innocence."
"(Tjhe jury plays a political function in
the administration of the law...." Taylor
v. Louisiana, 419 U.S. 522, 529 (1975). "It

13

must be remembered that the jury is
designed not only to understand the case,
but also to reflect the community's sense
of justice in deciding it." Id. at 26 n. 37
(quoting H.R. Rep. No. 1076, 90th Cong., 2d
Sess., reprinted in 1968 U.S. CODE CONG.
AND AD. NEWS 1792, 1797, the House Report
on the Federal Jury Selection and Service
Act of 1968, 28 U.S.C. §§ 1861 et seq.).4
The jury functions in part by invoking
its values to express the community's judg-
ment of the severity of the offense and the

moral culpability of the offender. Cf.
Vasquez _v. Hillery, 474 U.S. , 88

L.Ed.2d 598, 608-09 (1986) (grand jury). It

4 As Justice Rehnquist has observed:
"Trial by a jury of laymen rather than by
the sovereign's judges was important to the
founders because juries represent the
layman's common sense, the ‘passionate
elements in our nature,' and thus keep the
administration of law in accord with the
wishes and feelings of the community."
Parklane Hosiery Co. v. Shore, 439 U.S.
322, 341-42 (1979) (Rehnquist, Dee
dissenting) (quoting 0. Holmes, COLLECTED
LEGAL PAPERS 237 (1920)).

14

may do so in obvious ways, as when it
chooses between guilt of the crime charged
or of a lesser included offense. See Keeble
v. United States, 412 U.S 205 (1973). or
it may do so in less obvious ways when it
treats the variety of factual and mixed
factual-legal decisions with which it is
regularly confronted.
This becomes clear when one considers
the multi-dimensional nature of even a
simple criminal case. For example,
(ijmagine a manslaughter charge arising
out of reckless driving. The decision-
maker must determine the truth of a
certain number of propositions
regarding “external facts," such as the
speed of the automobile, the condition
of the road, the traffic signals, the
driver's identity, and so on. ... The
inquiry here appears to be relatively
objective, and the truth about such
facts does not seem to be too elusive.

But many “internal facts" will

also have to be established.... They
regard aspects of the defendant's
knowledge and volition.... The

ascertainment of such facts is already
a far less objective undertaking than
the ascertainment of facts derived by
the senses....

15

The situation changes, however,
when the facts ascertained must be
assessed in the light of the legal
standard. Whether a driver has deviated
from certain standards of care -- and
if so to what degree -- are problems
calling for a different type of mental
operation than that used in dealing
with external facts.

Damaska, Presentation of Evidence and Fact-
finding Precision, 123 U.Pa.L.Rev. 1083,

085-86 (1975). The impact on the decision-
making process of the exclusion of
minorities must be understood at each level
of the truth-finding process.

The exclusion of minority jurors will
inevitably result in the exclusion of
perspectives and values not otherwise
represented. This will have obvious impact
on the qualitative decisions regarding
intent and the application of legal
standards to the facts of the case. But
even at the first, most objective level --
that of “external facts" -- the exclusion

of minorities will have a skewing effect on

16

.

the accuracy of factfinding in several
distinct ways.>

A jury is often called upon to
ascertain facts on the basis of the
credibility of the witnesses. In a case
involving a black defendant -- or, as in
Griffith, a black defendant and white
victims -- the array of witnesses will
often divide on racial lines. In assessing
their credibility on the basis of their
demeanor, for example, it matters a great
deal if there are blacks on the jury who
are accustomed to the habits of speech and

mode of presentation exhibited by the

> One study found that, when showed a
picture of a white person armed with a
razor apparently arguing with a black man,
over half of the subjects reported that it
was the black man who held the razor. G.
Allport & L. Postman, THE PSYCHOLOGY OF
RUMOR 111 (1965), discussed jin Johnson,
Black Innocence and the White Jury, 83
Mich. L. Rev. 1611, 1645 (1985).

17

defendant that might be unfamiliar or even
threatening to white jurors. ®

The perception of primary, "external
facts" is also affected by the values
brought to the jury room. The Court
recognized as much in Adams vy. Texas, 448
U.S. 38 (1980) -- where the value at issue
was the jurors' scruples against the death
penalty. There, the Court acknowledged that
the jurors' values "may affect what their
honest judgment of the facts will be or

what they may deem to be a reasonable

6 see Peters v. Kiff, 407 U.S. 493
(1972) (plurality opinion):

When any large and identifiable segment
of the community is excluded from jury
service, the effect is to remove from
the jury room qualities of human nature
and varieties of human experience, the
range of which is unknown and perhaps
unknowable. It is not necessary to
assume that the excluded group will
consistently vote as a class in order
to conclude ... that its exclusion
deprives the jury of a perspective on
human events that may have unsuspected
importance in any case that may be
presented.

Id. at 503-04.

18

doubt. Such assessments and judgments by
jurors are inherent in the jury systen.
--" Id. at 50.

This conclusion, of course, has strong
empirical foundations in the work of
Professors Kalven and Zeisel, H. Kalven,
Jr., & H. Zeisel, THE AMERICAN JURY (1966).
In their study of judge-jury disagreements,
they found that

to a considerable extent, or in exactly
45 per cent of the cases, the jury in
disagreeing with the judge is neither
simply deciding a question of fact nor
simply yielding to a sentiment or
values; it is doing both. It is giving
expression to values and sentiments
under the guise of aiswering questions
of facts.

Kalven & Zeisel, supra, at 116.’

7 Thus, what may look apparent to a
reviewing court may have seemed very
different to the jurors who heard all the
testimony and wrestled with the facts in
light of community values. "[T]he more one
is removed from the fullness of life, the
more limited but also the more precise is
our knowledge: there is one fixed
perspective. On the other hand, the closer
one remains to the complexity of real life
processes, the more encompassing but also
the less certain is one's understanding: as
in cubisn, our sensations come from

19

Moreover, the very nature of the
reasonable doubt standard means not only
that the jury will necessarily call upon
its values, but also that an individual
juror will make a difference. Kalven and
Zeisel found that juries by and large have
a higher threshhold of reasonable doubt
than do judges, but they did not ascribe
that difference to any "distinctive
value[s]} held by laymen." Kalven & Zeisel,
supra, at 189 n. 5. Rather, they concluded
that if a jury “decides close cases with e
higher cut-off point than does a single
judge, the explanation may reside in the
unanimity requirement. The jury, to avoid
disagreement, would tend in the direction
of its most stringent member." Id. Thus,
the exclusion of a gingle minority juror
who holds a more stringent view of "what

(he) may deem to be a reasonable doubt...,"

multiple viewpoints and there is more than
one side to every story." Damaska, supra,
at 1104.

20

Adams v. Texas, 448 U.S. at 50, will have a

profound impact on the jury's decision-
making process. This affects the truth-
finding process in a manner so vital as to

command retroactive application. See
Hankerson v. North Carolina, 432 U.S. 233
(1977); Ivan V. vy. City of New York, 407

U.S. 203 (1972).

The improper exclusion of even a single
minority juror will have an actual impact
on the outcome of the jury verdict in other
empirically demonstrable ways. For example,
Kalven and Zeisel found that the incidence
of hung juries depends on the number of
dissenting jurors: "for one or two jurors
to hold out to the end, it would appear
necessary that they had companionship at
the beginning of the deliberations. ... To
maintain his original position, not only
before others but even before himself, it
is necessary for him to have at least one

ally." Kalven & Zeisel, gupra, at 463.

21

Thus, the use of peremptory challenges to
exclude a single minority juror could
literally spell the difference between
conviction, on one hand, or a hung jury
resulting ultimately in acquittal, on the
other. See Brown yv. Louisiana, 447 U.S. at
332 & n. 10.

The Court need not speculate on this
matter, for the records in each of the
cases before it provide eloquent
demonstrations of the impact of this
practice on actual juries. In Brown, the
Assistant United States Attorney testified
that the reason he used his peremptories to
strike blacks was that a previous case in
which he did not do so ended in a hung
jury. Appendix D to the Petition for
Certiorari in No. 85-5731, at 20.

Griffith provides an even more
compelling example. There, the key issue

was a questionable cross-racial

22

identification.® mr. Griffith was tried
twice. He was convicted by a jury from
which blacks were purged by the
prosecutor's use of peremptory challenges.
But the first trial, at which the
prosecutor struck only three of the four
blacks on the venire, ended in a hung jury.

The exclusion of a single minority
juror can have an actual impact on the

ultimate verdict in another way. Kalven and
Zeisel found "that with very few exceptions

the first ballot decides the outcome of the
verdict." Kalven & Zeisel, gupra, at 488
(emphasis in original). The effect of the

initial vote was quite precise, and
revealing: an initial vote of 7-5 to
convict resulted in a verdict of "guilty"
86% of the time; an initial vote of 7-5 to

acquit resulted in a verdict of "innocent"

8 mr. Griffith testified and denied
guilt. One of the white victims, who
positively identified him as the assailant,
also testified that she saw him on the
street two weeks after the crire -- at a
time when Mr. Griffith was in jail awaiting
trial.

23

91% of the time; and an initial vote of 6-6
made the ultimate result a toss-up: "the
final verdict falls half the time (it so
happens, exactly half the time) in one
direction and half in the other." id. The
impermissible purging of a single minority
juror can shift the balance on the initial
vote in a way that in fact determines the
outcome.

"Thus, it makes a good deal of
difference in this decision-making who the
personnel are." Kalven & Zeisel, supra, at
496; gee also Ballard v. United States, 329
U.S. 187, 194-95 (1946). Indeed, the
identity of the jurors is more important to
the outcome than the deliberation process.
Kalven & Zeisel, gupra, at 496. Thus, the
fact that the remaining jurors may
themselves be fair and impartial "does
nothing to allay our concern about the

reliability and accuracy of the jury's
verdict." Brown y. Louisiana, 447 U.S. at

24

333. "Any practice that threatens the
jury's ability to perform that function
poses a similar threat to the truth-
determining process itself. The rule in
(Batson) was directed toward elimination of
just such a practice. its purpose,
therefore, Clearly requires retroactive

application." Ig. at 334.9

B. The Reliance by Prosecutors On Swain

Does Not Support Prospective
c ° e St ds unciated

in Batson

Batson was not the kind of "clear

break" with past precedent that would
warrant prospective application. First,
Batson did not purport to change the
substantive standard governing the use of

peremptory challenges sby prosecutors. To

9 DeStefano _v. Woods, 392 U.S. 63]
(1968), is not to the contrary. It is one
thing to say that a judge's determinations
are no less accurate and reliable than a
jury's. But it is quite another to provide
a jury and then ignore the fact that it has
been tampered with in ways affecting
directly its decision-making function. See
Brown, 447 U.S. at 334 n. 13.

25

the contrary, it began its analysis with
the observation that "Swain ... recognized
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, 90

L.Ed.2d at 79 (quoting Swain v. Alabama,
380 U.S. at 203-04).

Although Batson did of course overrule
Swain in part, it did so only with regard
to the mode of proof to be employed in
proving discriminatory use of the
peremptory challenge. If prosecutors relied
on the Swain standards, they relied on
those standards not to justify their
conduct but merely to insulate their
knowingly impermissible conduct from
effective review. This is not the kind of
“good-faith reliance," Brown v. Louisiana,

447 U.S. at 335; DeStefano v. Woods, 392
U.S. 631, 634 (1968), that justifies

26

eternal insulation by means of a
prospectivity rule.?°

No prosecutor could have been unaware

that racial discrimination ... violates
deeply and widely accepted views of
elementary justice.... Over the past
quarter of a century, every

pronouncement of this Court and myriad
Acts of Congress and Executive Orders
attest a firm national policy to
prohibit racial segregation and
discrimination....

Bob Jones University v. United States, 461
U.S. 574, 592-93 (1983). Thus, in every
case in which the defendant, pursuant to
Batson, makes a prima facie case that the
prosecutor used peremptory challenges to
eliminate blacks for impermissible motives,
it is necessarily true that there is reason

to believe that the prosecutor knowingly

10 certainly, no prosecutor who tried
a case subsequent to the decisions
respecting the denial of certiorari in
McCray v. New York, 461 U.S. 961, 963
(1983) (Marshall and Brennan, JJ.,
dissenting from the denial of certiorari);
id. at 961 (Stevens, Blackmun, and Powell,
JJ., opinion respecting the denial of
certiorari), could fail to be on notice
that the practice was constitutionally
suspect.

27

committed "a grave constitutional
trespass." Vasquez v. Hillery, 88 L.Ed.2d
at 608.

Second, even Batson's change in the
evidentiary standard was not a "clear
break" with past law. The Court's review in
Batson of its intervening decisions
regarding proof of impermissible racial
motive conclusively demonstrates that
Batson was foreshadowed in a host of cases.
Where Swain had indicated that "an
inference of purposeful discrimination
would be raised on evidence that a
prosecutor, ‘in case after case, whatever
the crime and whoever the defendant or the
victim may be, is responsible for the
removal of Negroes...,'" Batson, 90 L.Ed.2d
at 84 (quoting Swain, 380 U.S. at 223),
Arlington Heights v. Metropolitan Housing
Development Corp., 429 U.S. 252 (1977), had

made clear

28

that "a consistent pattern of official
racial discrimination" is not "a
necessary predicate to a violation of
the Equal Protection Clause. A single
invidiously discriminatory governmental
act" is not “immunized by the absence
of such discrimination in the making of
other conparable decisions."

Batson, 90 L.Ed.2d at 87 (quoting Arlington
Heights, 429 U.S. at 266, n. 14); see also
Alexander v. Louisiana, 405 U.S. at 629-31.

Moreover, "(tjhe standards for
assessing a prima facie case in the context
of discriminatory selection of the venire
have been fully articulated since Swain."
Batson, 90 L.Ed.2d at 87. It was "[t)hese
principles" -- spelled out in the Court's
cases from 1972 onwardii -- which
supported the “conclusion that a defendant

may establish a prima facie case of

11 The Court cited and discussed
Alexander v. Louisiana, 405 U.S. 625, 629-
31 (1972)? McDonnell Douglas Corp. v,.
Green, 411 U.S. 792 (1973) (Title VII);
Washington v. Davis, 426 U.S. 229, 241-42
(1976); and Castaneda v, Partida, 430 U.S.
482, 494-95 (1977), as articulating the
evidentiary standards to be applied.
Batson, 90 L.Ed.2d at 87-88.

29

purposeful discrimination in selection of

the petit jury solely on the evidence

concerning the prosecutor's exercise of

peremptory challenges at the defendant's

trial." Id.

c. The Potential Effect on __the
Overwhelming as to Override the

The balance of considerations raised by
the concern for the effect of Batson on the
administration of justice is not s0
overwhelming as to override the concern for
accuracy in the jury's decision-making
process.

First, it is not clear that this factor
points only in the direction of
prospectivity. There are cases that raise
the issue of discriminatory use of

peremptories on records that meet the

standards of either Batson or Swain. See,
e.g., Evans v. Mississippi, No. 85-6932,
cert. denied, 54 U.S.L.W. 3810 (June 39,
1986). Indeed, Brown may well be just such

30

a case.12 It would be not only anamolous
but wasteful to require the lower courts to
hear such petitioners present the "case
after case" evidence required by Swain when
their claims might be proved more
efficiently under the Batson standards.
Second, it is not at all clear that the
number of Batson claims that properly were
preserved in the state courts is so high
that a general jail delivery is to be
feared. See Wainwright v. Sykes, 433 U.S.
72 (1977); Hankerson v. North Carolina, 432
U.S. at 244 n. 8. For those who did not

perserve the claim, it is unlikely that

12 tn his concurring opinion in
Batson, Justice White explained that even
under Swain it would be proper for a trial
judge to invalidate the prosecutor's use of
peremptories in a case in which he or she
admitted to doing so on the basis of race,
especially if the defendant is black.
Batson, 90 L.Ed.2d at 90 n. *. In Brown,
the Assistant United States Attorney
ultimately admitted to the trial judge
that: "I said 'We would like to have as few
black jurors as possible,' which is exactly
either I'm sure what I said or close to
it...." Appendix D to the Petition for
Certiorari in No. 85-5731, at 70.

31

they will be able to show cause; the very
cases that warned prosecutors of the
illegality of the practice also provided
the tools for competent counsel to raise
and preserve the claim. See Engle v. Isaac,
456 U.S. 107 (1982). Moreover, the lower
courts may properly limit consideration to
only those cases in which there is an
adequate proffer of evidence to suggest a
prima facie case. §ee. @.9., Esquivel v.
McCotter, 791 F.2d 350, 351 (Sth Cir. 1986)
(state court found that no Spanish-surnamed
jurors were struck).

In any event, the Court has never held
that a practice which strongly implicates
the truth-finding process will nevertheless
be given retroactive condonation simply
because of the the widespread nature of the

violation. See Hankerson v. North Carolina,
432 U.S. at 243.

32

II. THE NATURE OF THE SENTENCING DECISION
IN CAPITAL CASES IS SUCH THAT THE
EXCLUSION OF MINORITIES FROM THE JURY
NECESSARILY DIMINISHES ITS RELIABILITY,
REQUIRING RETROACTIVE APPLICATION OF
BATSON TO CAPITAL SENTENCING
PROCEEDINGS

The nature of the capital sentencing
decision made by a jury calls for the
retroactive application of Batson because
of the “unacceptable risk ... infecting the
v. Murrray, 476 U.S. _, 90 L.Ed.2da 27, 37
(1986) (emphasis in original), that results
from the exclusion of minorities from
sentencing juries. This unacceptable risk
arises in two separate ways.

"In 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."'" Turner, 90 L.Ed.2d at 35

(quoting Caldwel]_v., Mississippi, 472 U.S.
, 86 L.Ed.2d 231, 247 n. 7 (1985), and

33

Zant v. Stephens, 462 U.S. 862, 900
(1983) (Rehnquist, J., concurring)). Because

"(ijt is entirely fitting for the moral,
factual, and legal judgment of judges and
juries to play a meaningful role in
sentencing..., sentencers will exercise
their discretion in their own way and to
the best of their ability.” Barclay v.
Florida, 463 U.S. 939, 950(1983) (plurality
opinion). "The sentencing process assumes
that the trier of fact will exercise
judgment in light of his or her background,
experiences, and values." Id. at 970
(Stevens and Powell, JJ., concurring).
Given the inherently subjective, value-
laden nature of the capital sentencing
determination, there is risk of substantial
inaccuracy and unreliability in the death
verd ct imposed or recommended by a jury
from which minorities were purged. This
risk arises in two ways. First, "[(bjecause

of the range of discretion entrusted to a

34

jury in a capital sentencing hearing, there
is a unique opportunity for racial
prejudice to operate but remain
undetected." Turner, 90 L.Ed.2d at 35. The
impermissible removal of black potential
jurors from the jury room removes one of
the best -- if not the best -- means of
curbing such abuse: The presence of a black
juror provides both a means to unmask
prejudice should it creep into the jury
room and a powerful deterrent against its
entry.

Second, the very function of a jury in
a capital case is to serve as a "link
between contemporary community values and
the penal system -- a link without which
the determination of punishment could
hardly reflect the ‘evolving standards of
decency that mark the progress of a
maturing society.'”" Gregg v., Georgia, 428

U.S. 153, 190 (1976) (plurality

opinion) (quoting Trop v. Dulles, 356 U.S.

35

86, 101 (1958)). That link is destroyed
when important segments of the community
are deliberately and impermissibly
excluded. All the reasons that demonstrate
that the exclusion of blacks fron the
guilt/innocence stage of the trial affects
the decision-making process apply with
greater force to the sentencing decision,
which more openly calls for the exercise of
discretion and the interpolation of values
in the application of the law.

The Court recognized as much in

Witherspoon v. Illinois, 391 U.s. 510

(1968) == concerning the exclusion of

individual jurors because of their values
regarding capital punishment -- where it
held that decision entirely retroactive.
id. at 523 xn. 22. See also Davis vy,
Georgia, 429 U.S. 122 (1976) (improper

exclusion of single Witherspoon jurer

requires reversal). So too, in capital

cases in which the prosecution used its

36

peremptories impermissibly to remove blacks
--and to a much greater degree -- "the jury
selection standards employed

necessarily undermined ‘the very integrity

of the ... process' that decided the
petitioner's fate ... requiring the fully
retroactive application of..."13 Batson to

capital sentencing proceedings.

13 w , 391 U.S. at 523 n. 22
(quoting Linkletter, 381 U.S. at 639).

37

For

CONCLUSION

foregoing reasons, the

judgments of the courts below should be

reversed.

Respectfully submitted,

JULIUS LeVONNE CHAMBERS
CHARLES STEPHEN RALSTON
99 Hudson Street

16th Floor
New York, N.Y. 10013
(212) 219-1900

STEVEN L. WINTER*®
University of Miami
School of Law
P.O. Box 248087
Coral Gables, Fla.
33124-8087
(305) 284-2392

Attorneys for the NAACP
Legal Defense & Educa-
tional Fund, Inc.

LOIS WALDMAN
The American Jewish
Congress
15 East 84th Street
New York, N.Y. 10028

*Counsel of Record

38

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0262%3A09. Public record. Not legal advice.