Sawyer v Smith Brief of Amicus Curiae

    N o . 89-5809

In the

l&tpmne (Emtrt of IlnitBfi t̂atEO
October Term, 1989

Robert Sawyer,

-v.—
Petitioner,

Larry Smith, Interim Warden, 
Louisiana State Penitentiary,

Respondent.

o n  w r it  o f  c e r tio r ar i to  th e  u n ite d  states
COURT OF APPEALS FOR THE FIFTH CIRCUIT

BRIEF OF A M IC U S CU RIAE,
NAACP LEGAL DEFENSE AND EDUCATIONAL 

FUND, INC., IN SUPPORT OF PETITIONER

Julius L. Chambers 
Richard H. Burr 
George H. Kendall 
Steven W. Hawkins 
99 Hudson Street, 16th F loor 
New York, New  York 10013 
(212) 219-1900

Counsel fo r  Amicus Curiae



TABLE OF CONTENTS

PAGE

TABLE OF AUTHORITIES................. ii
INTEREST OF AMICUS CURIAE......... . . 1
SUMMARY OF ARGUMENT......   3
ARGUMENT.............................. 8

A. The Fifth Circuit's
Analytical Framework........ 10

B. The Doctrinal Underpinnings of
Teague: Whether A
Subsequently - Announced
Rule Is New Must Be 
Determined By Whether 
This Court Would Have 
Ruled Differently At 
The Time The Petitioner's 
Conviction Became
Final.......... ..........  12

C. The Fifth Circuit's Decision 
In Mr. Sawyer's Case Must Be 
Reversed If The Doctrinal 
Basis Of Teague Is To
Be Preserved.  .....  18

l



D. The Fifth Circuit's Decision 
Must Also Be Reversed 
Because It Is So Destructive 
Of The Values Subordinated By 
Teague That It Calls Into 
Question The Continuing
Viability
of Teague.  ......................  27

CONCLUSION..........................  3 7

11



TABLE OF AUTHORITIES

CASES PAGES
Caldwell v. Mississippi. 472

U.S. 320 (1985) .............. Passim
California v. Ramos. 463 U.S.

992 (1983)   26

Desist v. United States. 394 U.S.
44 (1969).......... Passim

Donnelly v. DeChristoforo. 416
U.S. 637 (1974) ........ . 10, 11,

12 , 13
Eddinqs v. Oklahoma, 455 U.S.

104 (1982) ..................  24, 25
Gardner v. Florida. 430 U.S.

349 (1977)      24
Godfrey v, Georgia. 446 U.S.

420 (1980) ................... 25
Gregg v. Georgia, 428 U.S.

153 (1976)      25

Huffman v. Pursue Ltd., 420
U.S. 592 (1975)   34

Lockett v. Ohio. 438 U.S. 586
(1978) .... .................  24, 25

Mackey v. United States, 401
U.S. 667 (1971) .............. 18, 28,

29, 30, 36

iii



McGautha v. California. 402
U.S. 183 (1971)   23

Penrv v. Lvnaugh. 106 L. Ed. 2d
256 (1989)   24

Proffitt v. Florida. 428 U.S.
242 (1976)   25

Roberts (Harry) v. Louisiana. 431
U.S. 633 (1977)   25

Rose v. Lundy. 455 U.S. 509
(1982)   34

Ex parte Rovall. 117 U.S. 241
(1886) ......................  7, 34

Sawyer v. Butler. 881 F.2d 1273
(5th Cir. 1989)   Passim

Selvage v. Collins,
58 U.S.L.W. 4221 (February 21,
1990)...........................  3

Teague v. Lane. 103 L. Ed.
2d 334 (1989)   Passim

Truesdale v. Aiken. 480 U.S.
527 (1987)   18

Woodson v. North Carolina. 428
U.S. 280 (1976)   24,25

Zant v. Moore. 103 L.
Ed. 2d 922 (1989)     3

Zant v. Stephens, 462 U.S. 862
(1983)   25

IV



No. 89-5809

IN THE
SUPREME COURT OF THE UNITED STATES 

October Term, 1989

ROBERT SAWYER,

Petitioner,
v.

LARRY SMITH, Interim Warden, 
Louisiana State Penitentiary,

Respondent.

On Writ of Certiorari to the 
United States Court of Appeals 

for the Fifth Circuit

BRIEF OF AMICUS CURIAE. NAACP 
LEGAL DEFENSE AND EDUCATIONAL 

FUND, INC., IN SUPPORT OF PETITIONER

INTEREST OF AMICUS CURIAE1 
The NAACP Legal Defense and 

Educational Fund, Inc., is a non-profit

1 L e t t e r s  from the parties 
consenting to the filing of this Brief 
have been lodged with the Clerk of the Court.



corporation, incorporated under the laws 
of the State of New York in 1939. It was 

formed to assist Blacks to secure their 

constitutional rights by the prosecution 
of lawsuits. Its charter declares that 
its purposes include rendering legal aid 

without cost to Blacks suffering injustice 
by reason of race who are unable, on 
account of poverty, to employ legal 

counsel on their own behalf.
Because race has been a consistent 

concern in the administration of capital 
sentencing statutes, the Fund has for many 

years been involved in the defense of 
persons charged with or convicted of 

capital crimes. Increasingly, death 
penalty litigation has required the Court 
to examine the operation of the federal 
habeas corpus process. Recently, for 
example, two of the Fund's clients have 

been before the Court in cases focusing on

2



nettlesome questions concerning habeas 
corpus procedures.2

The questions presented by Mr. 
Sawyer's case are such questions. In 

light of our experience in capital habeas 
litigation, we believe that our views on 
these questions can be of material aid to 
the Court in the disposition of Mr. 

Sawyer's case
SUMMARY OF ARGUMENT

In Mr. Sawyer's case, the Fifth 
Circuit's analysis of what constitutes a 
new constitutional rule of criminal 
procedure under Teague v. Lane. 103 
L. Ed. 2d 334 (1989) is in deep conflict
with Teague's analysis. Teague adopted 
Justice Harlan's jurisprudence of 

retroactivity, which requires retroactive

2 See Selvage v. Collins, ____ U.S.
__, 58 U.S.L.W. 4221 (February 21, 1990);
Zant v. Moore. ___ U.S. ___ , 103 L.Ed.2d
922 (1989).

3



application of a new rule in cases that 
became final before the new rule was 

announced if, applying the constitutional 

standards that were in place at the time a 

habeas petitioner's conviction became 
final, "one could never say with any 
assurance that this Court would have ruled 
differently at [that time]." Desist v. 

United States. 394 U.S. 244, 263-64 (1969) 

(Harlan, J., dissenting). The Fifth 

Circuit's analytical framework, which was 

articulated and applied to bar the 
application of Caldwell v. Mississippi. 

472 U.S. 320 (1985) in Mr. Sawyer's case, 

is radically different. It looks only at 

whether the rule announced in the 

subsequent case was different in any 

respect from the rule applied, or that 

probably would have been applied, at the 
time the case became final. If there is 

any material difference, retroactive

4



application of the new rule is barred. No 
inquiry is made —  as it is in Justice 

Harlan's analysis —  to determine whether 
the "new" rule would have been adopted by 

this Court at the time the petitioner's 
conviction became final had a case simply 

been before the Court which called for 
such a rule.

If Teague is to be viable, the Fifth 

Circuit's non-retroactivity ruling in Mr. 
Sawyer's case must be reversed. 

Utilizing the Teaque-Harlan framework of 
analysis, one cannot "say with any 

assurance that this Court would have ruled 
differently [on the Caldwell issue] at the 

time [Mr. Sawyer's] conviction became 

final." Desist. 394 U.S. at 263-64. All 

of the constitutional standards utilized 
to decide Caldwell were equally available 

fourteen months before Caldwell was 

decided, the time at which Sawyer's

5



conviction became final. No new principle 

relevant to the Caldwell analysis emerged 

during that fourteen-month interval. 
Under Teague1s analytical requirements, 

Caldwell is retroactively applicable in 
Mr. Sawyer's case.

In addition, the Fifth Circuit's 

framework for analyzing retroactivity will 

destroy the values subordinated to the 

interest in finality, yet still 
safeguarded, in Teague. First, persons 
similarly situated in relation to the 

evolution of constitutional principles, 
yet differently situated on the continuum 
of time, will be treated differently—  
solely because of the fortuity of the 

moment at which this Court decides to 

review a particular issue. There could be 

no more arbitrary or capricious basis upon 

which to classify persons' entitlement to 

the benefit of law. Second, at trial and

6



on appeal, prosecutors and state court 
judges will be encouraged to distinguish 

and not apply existing constitutional 

standards, for any colorable distinction 

will allow them to insulate convictions 

from federal habeas review in light of 
decisions announced by this Court after 
the convictions become final. The goal of 
federalism —  a joint state-federal 

partnership to "guard and protect rights 

secured by the Constitution," Ex parte 
Royal 1 . 117 U.S. 241, 251 (1886) —  will
be defeated in the process. Finally, 

federal habeas courts will not be allowed 
to determine whether the principles of 
constitutional law that were established 
at the time a petitioner's case became 

final could logically have been extended 
then to support a decision similar to one 

the Court announced thereafter. As a 

result, the lower federal courts will no

7



longer be able to play a role in the 
evolution of constitutionally based rules 
of criminal procedure. If these

destructive consequences are deemed 

compatible with Teague. the wisdom of 
Teague will be drawn profoundly into 
question.

ARGUMENT

For purposes of Teague v. Lane. 103 

L.Ed.2d 334 (1989), Robert Sawyer's case

became final on April 2, 1984. Fourteen
months later, the Court decided Caldwell 
v. Mississippi. 472 U.S. 320 (1985). The
threshold question presented by Mr. 

Sawyer's challenge to his death sentence 

under Caldwell is whether the Caldwell 

decision enunciated "new law" that is 

nonretroactive within Teague.

A majority of the Fifth Circuit below 

held that Caldwell established new law. 

However, the analysis that led it to this

8



conclusion is at war with the doctrinal
basis for the Court's decision in Teague. 
Further, it is so destructive of the 

values subordinated but nonetheless 

safeguarded by the Court in Teague that it 
calls into grave question the wisdom of 

Teague itself.
R e s p e c t  for the d o c t r i n a l  

underpinnings of Teague and for the 

balance that it struck among the competing 

values surrounding retroactivity 
principles demands that the Fifth 
Circuit's ruling be set aside. If

analyzed in keeping with the views of 

Justice Harlan, which the Court adopted in 

Teague. the rule of Caldwell is a classic 

example of the kind of rule which Justice 
Harlan would have applied retroactively: 

one that is "grounded upon fundamental 

principles whose content does not change 

dramatically from year to year, but whose

9



meanings are altered slowly and subtly as 

generation succeeds generation" —  a rule 
which is not new because "one could never 

say with any assurance that this Court 

would have ruled differently at the time 
the petitioner's conviction became 
final." Desist v. United States. 394 U.S. 

244, 263-64 (1969) (Harlan, J.,

dissenting).
A. The Fifth Circuit's Analytical 

Framework

The Fifth Circuit majority held that

Caldwell established a new rule of

constitutional law that could not be

applied retroactively to Mr. Sawyer•' s

case. Sawyer v. Butler. 881 F.2d 1273, 
1290-91 (5th Cir. 1989) (en banc) . The 

majority reached this result by comparing 

the substance of the rule announced in 
Caldwell with the rule of Donnelly v. 

DeChristoforo. 416 U.S. 637 (1974).

It recognized that an Eighth

10



Amendment violation occurs under Caldwell
when "the state has misled the jury 
regarding its role under state law to 

believe that the responsibility for 

determining the appropriateness of 

defendant's death rests elsewhere." 881 

F.2d at 1286. Noting that this error 
could also have been attacked as a due 
process violation under Donnelly, the 

majority found that the primary difference 
between Caldwell and Donnelly was in the 

measure of prejudice required to establish 
a constitutional violation. Under 

Donnelly. a petitioner had to show that 
the prosecutor's argument "so infected the 
trial with unfairness as to make the 

resulting conviction a denial of due 
process," 416 U.S. at 643; under Caldwell. 

the petitioner had to show only that the 

argument could have had some effect on the

11



sentencing decision, 472 U.S. at 341.3 
The Fifth Circuit found that this aspect 

of Caldwell was new, because it "'was not 

dictated by precedent existing at the 

time the defendant's conviction became 
final,'" Sawyer v. Butler. 881 F.2d at 

1291 (quoting Teague v. Lane. 103 L.Ed.2d 

at 349 (emphasis in original)) —  i.e., it 

was not d i c t a t e d  by D o n n e l 1v . 
Accordingly, the Fifth Circuit concluded 

that "Caldwell's greatly heightened 

intolerance of misleading jury argument is 

a new rule within the meaning of Teague." 
881 F .2d at 1291.

B. The Doctrinal Underpinnings of 
Teague: Whether A Subseguentlv
- Announced Rule Is New Must Be 
Determined By Whether This Court

3 The Caldwell Court phrased the 
test of prejudice in the negative: 
"Because we cannot say that [the 
prosecutor's argument] had no effect on 
the sentencing decision, that decision 
does not meet the standard of reliability 
that the Eighth Amendment requires." 472 
U.S. at 341.

12



Would Have Ruled Differently At 
The Time The Petitioner's 
Conviction Became Final

The analytical process which led the 
Fifth Circuit to its conclusion in Sawyer 

was simple and straightforward. The court 

first identified the most nearly 
controlling single precedent which Sawyer 

could have cited at the time his case 
became final. That, it believed, was 

Donnelly. It then color-matched Donnelly 

and Caldwell to determine whether Caldwell 
held anything that, in comparison to 
Donnelly . was different or more 
advantageous to Mr. Sawyer. Finding that 
the measure of prejudice was such an 

element, the court declared that Caldwell 

established a new rule and thus could not 

be applied retroactively.
In sharp contrast to the Fifth 

Circuit's analytical framework, the 

framework espoused by Justice Harlan for

13



determining whether a rule announced by 
this Court after a case becomes final is 

"new" focuses on "the constitutional 

standards dominant at the time of [a 

petitioner's] conviction," and whether 
"the proper implications of th[ose] 

governing precedents" would have led the 

Court to announce the rule subsequently 
announced if it had decided the question 

before the petitioner's case became final. 

Desist v. United States. 394 U.S. at 268 

(Harlan, J., dissenting). If in light of 
these "governing precedents," "one could 
never say with any assurance that this 
Court would have ruled differently at the 

time petitioner's conviction became 

final," the subsequently announced rule is 

not "new" and should be applied 
retroactively. Id. at 264.

Unlike the Fifth Circuit's approach 

to newness, Justice Harlan's approach

14



attempts to measure what all the relevant 
constitutional standards were at the time 

a petitioner's case became final, and to 
decide whether those standards would have 

supported the same rule that was later 

articulated in the supervening decision. 
The Fifth Circuit's approach measures only 
whether there is a difference between the 

rules articulated in cases before and 

after the petitioner's case became final. 

It does not examine whether any difference 
is the result of n e w l y - e v o 1ved 

constitutional principles or simply 
fortuity. This kind of examination-- 
which goes to the heart of Justice 

Harlan's perspective —  can be conducted 

only by asking how the supervening case 

would have been decided at the time the 

petitioner's conviction became final.
Accordingly, Justice Harlan's 

approach, not the Fifth Circuit's

15



aPPr oach, is  the one in  keeping w ith  the

purpose of the retroactivity doctrine:

"'in adjudicating habeas petitions, ... to
apply the law prevailing at the time a

conviction became final,'" Teague. 103

L.Ed.2d at 353 (citation omitted).
Anticipating the very approach to "new"
law analysis that the Fifth Circuit

adopted in S awyer. Justice Harlan

cautioned that the attractive simplicity
of this approach should not be allowed to
conceal its underlying ineguity:

It is doubtless true that a 
habeas court encounters 
difficult and complex 
problems if it is required 
to chart out the proper 
i m p l i c a t i o n s  of the 
governing precedents at the 
time of a petitioner's 
conviction. One may well 
argue that it is of 
paramount importance to 
make the "choice of law" 
problem on habeas as simple 
as possible, applying each 
"new" rule only to those 
cases pending at the time 
it is announced. While 
this would obviously be

16



simpler, simplicity would 
be purchased at the cost of 
compromising the principle 
that a habeas petitioner is 
to have his case judged by 
t h e  c o n s t i t u t i o n a l  
standards dominant at the 
time of his conviction.

Desist v. United States. 394 U.S. at 268.

In "adopt[ing] Justice Harlan's view 
of retroactivity for cases on collateral 

review," Teague v. Lane. .103 L.Ed.2d at 

356, the Court plainly embraced these 
principles. The Teague plurality

repeatedly referred to Justice Harlan's 
view that "'the habeas court need only 
apply the constitutional standards that 

prevailed at the time the original 

proceedings took place,'" Teague, 103
L.Ed.2d at 353 (quoting Desist v. United 

States. 394 U.S. at 262-63 (Harlan, J. , 

dissenting)), and that "'it is sounder, in 

adjudicating habeas petitions, generally 

to apply the law prevailing at the time a 

conviction became final...[,]'" id.
17



(quoting Mackey v. United States, 401 U.S. 
667, 689 (1971) (separate opinion of

Harlan, J.)). Neither the Court nor 
Justice Harlan narrowed the retroactivity 
inquiry to a mere search for differences 

between decisions before and after the 

petitioner's case became final. Indeed, 
the Court's proponents of Justice 

Harlan's views have confirmed that the 

appropriate inquiry concerning the 
retroactivity of a decision announced 
after a petitioner's case has become final 

is: "how the Court would have decided
this case at the time petitioner was 

convicted." Truesdale v. Aiken. 480 U.S. 
527, 529 (1987) (Powell, J., joined by

Rehnquist, C.J., and O'Connor, J., 

dissenting).
C. The Fifth Circuit's Decision In 

Mr. Sawyer's Case Must Be 
Reversed If The Doctrinal Basis 
Of Teague Is To Be Preserved

As we have noted, in deciding Mr.

18



Sawyer's case the Fifth Circuit asked only
whether, at the time Sawyer's case was
tried or appealed, the specific prior
holdings of this Court not the
established, generalized principles of
constitutional law — ■ would have provided 
the remedy to which he was entitled under 
Caldwell v. Mississippi. Finding that no 

existing decision would have provided the 

remedy he could obtain under Caldwell. the 
Fifth Circuit held that Caldwell announced 
a nonretroactive new rule. If the Fifth 

Circuit had instead asked the question 

Justice Harlan would have asked —  whether 
"one could ... say with any assurance 

that this Court would have ruled 
differently at the time the petitioner's 

conviction became final," Desist. 394 

U.S. at 264 —  its conclusion concerning 

the retroactive application of Caldwell 

in Mr. Sawyer's case would have been

19



precisely the opposite.

To determine whether the Court would 
have ruled differently if it had been 

presented with the Caldwell question at 

the time Mr. Sawyer's conviction became 

final, one must examine the rationale for 
the Court's decision in Caldwell and 

whether that rationale would have been the 
same if the Caldwell question had been 

decided before April 2, 1984, the date on

which Mr. Sawyer's conviction and 
sentence became final.

The rationale for the holding in 
Caldwell had five components. First, the 
Court reasoned that jurors who felt the 

full weight of responsibility for 
sentencing someone to death would act with 

utmost care in making a sentencing 

decision. 472 U.S. at 329-30. Second, 
the Court found that the exercise of 

sentencing discretion in this manner was

20



necessary to meet "the Eighth Amendment's 

"need for reliability in the determination 
that death is the appropriate punishment 
in a specific case."' 472 U.S. at 330 

(quoting Woodson v. North Carolina. 428 

U.S. 280, 305 (1976)). Third, the Court
determined that the right to have all 

relevant mitigating factors considered 

could only be effectuated by the 
sentencer. If the sentencer felt less 
responsibility than it should for the 

sentencing decision, full consideration 
might not be given to mitigating 

circumstances. Caldwell. 472 U.S. at 330- 
31. Fourth, the Court found that the 

jury's mistakenly diminished sense of 

responsibility for the sentencing decision 

might lead it to impose a death sentence 
without determining that death was the 

appropriate sentence —  in order to "'send 

a message' of extreme disapproval for the

21



defendant's acts" to the appellate court, 

472 U.S. at 331, or to transfer the 
ultimate burden of the sentencing decision 

to the appellate court, 472 U.S. at 332- 

33, in the mistaken belief that the 

appellate court was at liberty to impose 
the most appropriate sentence. Id. In 

these circumstances, a death sentence 

could be imposed even though no one had 

made an individualized determination that 

the defendant's moral culpability was 
great enough to warrant death. 472 U.S. 
at 331-32, 333. Fifth, the Court found
that misleading argument concerning the 
scope of appellate review of the 

sentencing decision created the risk that 

the jury would impose death "based on a 

wholly irrelevant factor": the "desire to

avoid responsibility for its sentencing 

decision," which could be avoided only by 

imposing a reviewable sentence —  death.

22



472 U.S. at 332.

Each of these components was well- 
rooted in Eighth Amendment principles 

established before Mr. Sawyer was tried in 

September, 1980. Many were even more 

firmly established by the time his 
conviction and sentence became final on 
April 2, 1984. The assumption that jurors 

who felt the full weight of responsibility 
for sentencing someone to death would act 

with the greatest of care in exercising 

sentencing discretion had been accepted by 
the Court since at least 1971, when it was 

articulated in McGautha v. California. 402 

U.S. 183, 208 (1971). In the Court's

p o s t - F u r m a n  E i g h t h  A m e n d m e n t  

jurisprudence, the need for jurors to 

exercise their capital sentencing 

discretion out of a full sense of the 
"awesome responsibility" they bore was 

"taken as a given." Caldwell v.

23



The
heightened need for reliability in the 
decision to impose a death sentence was 
universally accepted as an Eighth

Amendment requirement during the entire 

time Mr. Sawyer's case was "non-final." 
See, e.g. . Woodson v. North Carolina. 428 
U.S. 280, 305 (1976); Gardner v, Florida.

430 U.S. 349, 357-58 (1977); Lockett v.

Ohio. 438 U.S. 586, 604-605 (1978);

Eddinqs v. Oklahoma. 455 U.S. 104, 110-12
(1982). Similarly, the right to have all 

relevant mitigating circumstances 
considered and given full effect by the 

sentencer was well settled before Mr. 

Sawyer's Teague date, Lockett v. Ohio. 438 

U.S. at 604-06; Eddinqs v. Oklahoma. 455 
U.S. at 110-17; see Penrv v. Lvnaugh. 106 
L.Ed.2d 256, 276-78 (1989) (confirming the 

settled character of this right during the 

early 1980's), as was the right to an

Mississippi, 472 U.S. at 329.

24



individualized determination of the
appropriateness of the death sentence, 

Woodson v. North Carolina, 428 U.S. at 

303-304; Proffitt v. Florida. 428 U.S. 

242, 251-52 (1976); Gregg v. Georgia. 428
U.S. 153, 197 (1976); Roberts (Harry") v.
Louisiana. 431 U.S. 633, 636-37 (1977);

Lockett v. Ohio. 438 U.S. at 601-605; 

Eddings v. Oklahoma, 455 U.S. at 110-12; 
Zant v. Stephens. 462 U.S. 862, 879 

(1983), and the right to a sentencing 

process which minimized the risk that 
arbitrary or irrelevant factors could 

influence the outcome, Gregg v. Georgia. 

428 U.S. at 189 (characterizing the 

consensus expressed by the Court in Furman 

v. Georgia. 408 U.S. 238 (1972)); icL at

206-207; Godfrey v. Georgia. 446 U.S. 420, 
428-29 (1980); Zant v. Stephens, 462 U.S.

at 874-78.
A c c o r d i n g l y ,  a l l  of t h e

25



constitutional principles which informed
the Court's decision in Caldwell were 

established before Mr. Sawyer's case 

became final. During the fourteen-month 
interval between his case becoming final 
and the decision in Caldwell. no new 
principle of law emerged which had any 

bearing on the decision in Caldwell. 

There is no historical or analytical 

reason to suggest that the Court would 
have ruled differently on the Caldwell 

question if it had reached that question 
before Mr. Sawyer's conviction became 
final.4

4 The only principle which might 
conceivably have pointed to a different 
outcome on the Caldwell question was also 
available before Mr. Sawyer's case became 
final. In California v. Ramos. 463 U.S. 
992 (1983), the Court held that the
Constitution did not prohibit the states 
from giving a capital sentencing jury 
accurate information about post- 
sentencing procedures. To this extent, 
prosecutorial argument about appellate 
review —  even if it had the consequence 
of diminishing the jury's sense of

26



Within the framework adopted in 
Teacyue for determining whether a decision 
handed down after a habeas petitioner's 

case has become final announces a "new 

constitutional rule[] of criminal 

procedure," Teague. 103 L.Ed.2d. at 356, 
Caldwell did not announce such a rule.

D. The Fifth Circuit's Decision 
Must Also Be Reversed Because It 
Is So Destructive Of The Values 
Subordinated By Teacrue That It 
Calls Into Question The 
Continuing Viability of Teague

In Teague, as well as in Justice

responsibility for the sentencing decision 
-- seemed to be sanctioned by Ramos. 
However, as both the plurality and 
concurring opinions made clear in 
Caldwell. Ramos did not imply that "States 
are free to expose capital sentencing 
juries to any information and argument 
regarding post sentencing procedures," no 
matter how inaccurate. 472 U.S. at 335
(plurality opinion). Accord id. at 342 
(opinion of O'Connor, J., concurring). 
"Certainly, a misleading picture of the 
jury's role is not sanctioned by Ramos." 
I d . Thus, there was no settled
constitutional principle at the time Mr. 
Sawyer's case became final that pointed to 
any outcome on the Caldwell question 
other than the outcome later reached in Caldwell.

27



Harlan's retroactivity jurisprudence, the 
criminal justice system's interest in 
finality is given paramount importance. 

See Teague v. Lane. 103 L.Ed.2d at 352-56; 

Mackey v. United States. 401 U.S. at 682- 

83 (separate opinion of Harlan, J.) 
Nevertheless, the values which are 

subordinated to the interest in finality 
are values about which the Court and 

Justice Harlan are also genuinely 
concerned. These include (1) the need for 

fairness and even-handedness in the 
adjudication of the claims of persons 
similarly situated, see Teague. 103 L.Ed. 
at 349-52; Mackey v. United States. 401 

U.S. at 689; (2) the need to encourage

prosecutors and state court judges to 

adhere in good faith to governing 

constitutional principles by "chart[ing] 

out [and honoring] the proper implications 

of the governing precedents," Desist v.

28



United States, 394 U.S. at 268 (Harlan, 

J., dissenting), rather than to give the 
narrowest possible reading to established 

constitutional principles, see Teague, 103 

L.Ed.2d at 353; Desist v. United States. 
394 U.S. at 262-63 ; and (3) the need to 

encourage the lower courts to continue to 

play an active and significant role in 

" developing or interp r e t i n g  the 
Constitution." Mackey v. United States. 

401 U.S.. at 680. If affirmed, the Fifth 

Circuit's view of retroactivity will 
completely undermine these important 
values.

The interest in fair and even-handed 
adjudication of the claims of persons 

similarly situated is decimated by the 

Fifth Circuit's ruling, which provides no 

principled reason for the distinction that 
it draws between Robert Sawyer's case and 

Bobby Caldwell's case. In the

29



retroactivity jurisprudence of Justice 

Harlan, the only reason why it is fair to 

distinguish between habeas petitioners, 
whose cases have become final, and persons 

in trial or on direct appeal, whose cases 

have not become final, is that the 
constitutional principles that were 
established at the time of the habeas 

petitioner's trial or direct appeal would 
not then have supported the decision 

announcing the new rule. The evolution of 

legal principles that was needed to 
support the subsequent new rule decision 
distinguishes these two persons. While 
other definitions of fairness might call 

for the retroactive application of every 

new rule, see Mackey v. United States. 401 

U.S. at 689, the Harlan jurisprudence does 
not do so. Instead, it makes a principled 
accommodation —  based on the evolution of 

law —  between the interests of finality

30



and fairness.

In contrast, the Fifth Circuit's 
jurisprudence makes no attempt to 

accommodate finality and fairness. It 

distinguishes habeas petitioners from 

persons whose cases are not final solely 
on the basis of irrelevant fortuities of 

timing ■—  the sheer accident of when this 

Court happens to review and decide a 

particular question. It makes no effort 

to root the significance of this 
difference of timing in the evolution of 
law and to treat persons similarly 

situated in relation to the determinative 

constitutional principles -- though 
differently situated in time -- similarly, 

as the Harlan approach does. Instead, it 

differentiates persons on the basis of 

flukes of timing that have absolutely no 

substantive significance. Nothing, we 

submit, could be more destructive of the

31



values of fairness and even-handedness

which the Court sought to safeguard in 
Teague.

The second interest that is gravely 

jeopardized by the Fifth Circuit's 

distortion of Teague is the need to 
encourage prosecutors and lower courts to 

comply with established constitutional 
principles. As Justice Harlan recognized, 

"[T]he threat of habeas serves as a 

necessary incentive for trial and 
appellate courts throughout the land to 
conduct their proceedings in a manner 

consistent with established constitutional 
standards." Desist v. United States. 394 

U.S. at 262-63 (quoted with approval in 

Teague v. Lane, 103 L.Ed.2d at 353). The 
Fifth Circuit's decision in Sawyer 
substantially diminishes this incentive, 

for it encourages prosecutors and state 

judges to give the narrowest, most cramped

32



reading possible to es t a b l i s h e d  
constitutional principles.

The reason for this is that the Fifth 

Circuit's decision puts an enormous 

premium on prosecutors1 and state courts' 

efforts to limit the reach of established 

constitutional principles. Under the 

Fifth Circuit's jurisprudence, if 
p r o s e c u t o r s  or state courts can 

distinguish existing constitutional 
precedents from their own cases by giving 
the narrowest possible reading to the 

principles underlying the precedential 

decisions, a habeas court will 

subsequently decide that existing 
precedent did not control, and that any 

subsequent controlling decision cannot be 

applied retroactively. Through this 

mechanism, the states can effectively 

insulate much of their criminal process 
from federal review.

33



Accordingly, instead of encouraging 
the states to honor their duty to "guard 

and protect rights secured by the 

Constitution," Ex parte Rovall. 117 U.S. 
241, 251 (1886) —  one of the purposes of

retroactivity doctrine -- the Fifth 

Circuit's approach will actually 
discourage the states from seeking to 

protect constitutional rights. The very 
premise of federalism, that when "a 
State's judicial system...[is]...fairly 
accorded the opportunity to resolve 
federal issues arising in its courts," 

Huffman v. Pursue Ltd.. 420 U.S. 592, 609 
(1975), "state courts may become 

increasingly familiar with and hospitable 

toward federal constitutional issues," 

Rose v. Lundy. 455 U.S. 509, 519 (1982),
will be eroded.

Finally, the Fifth Circuit's decision 
will effectively end any role of the lower

34



federal courts in the evolution of

c o n s t i t u t i o n a l  rules of criminal 

procedure. Under Sawyer, the only role 

for the lower courts in federal habeas 

proceedings will be to determine whether 
any of this Court's decisions that were 
announced before the petitioner's case 
became final squarely control any of the 

issues in his case. The federal habeas 

courts will not be allowed to determine 

whether principles of constitutional law 
that were established when a petitioner's 
case became final could logically have 

been extended at that time to support a 
decision in his case akin to one this 

Court announced thereafter (after the 

petitioner's case became final). Instead, 

federal habeas judges will be forced to 
assume the role condemned by Justice 

Harlan: they will be "reduced largely to
the role of automatons, directed by us to

35



apply mechanistically all then-settled 
federal constitutional concepts to every 

case before them." Mackey v. United 
States. 401 U.S. at 413.

In essence, therefore, the Fifth
Circuit's rule is a rule that will

substantially interfere with the very

function of judging. Lower court judges

will not be allowed to ask whether the

logic of existing constitutional
p r i n c i p l e s  e x t e n d s  to f a c t u a l
circumstances in which the principles have
not previously been applied. At its core,

this is what judging —  indeed, this is

what our system of legal rules —  is all

about. Justice Harlan was not simply
describing the circumstances in which

there should be retroactive application of
supervening decisions when he wrote:

One need not be a rigid 
partisan of Blackstone to 
recognize that many, though 
not all, of this Court's

36



constitutional decisions 
a r e  g r o u n d e d  u p o n  
fundamental principles 
whose content does not 
change dramatically from 
year to year, but whose 
meanings are altered slowly 
and subtly as generation 
succeeds generation.

Desist v. United States. 394 U.S. at 263. 

He was also describing the process of law, 

which is inherently evolutional. It is a 
process from which Sawyer, if affirmed, 
would exclude federal habeas judges.

Conclusion

At bottom, the doctrine of 

retroactivity is a doctrine which seeks to 

classify cases in relation to the passage 
of time and the evolution of law. If at 

all relevant times in the progress of a 

case —  when closing arguments are made, 

when the direct appeal is pending, and, 
after the case has become final, when 

federal habeas proceedings are ongoing-- 
the conceptual structure of the law is

37



the same, a habeas petitoner is entitled 
to the application of a supervening 
decision by this Court which is supported 

by that conceptual structure. To deny the 

petitioner the benefit of such a 

supervening decision simply because it 
adds a new element to the rule of law is 

to turn the doctrine of retroactivity from 

a necessarily categorical but not 

irrational tool of classification into an 

unnecessarily arbitrary and irrational 
one. That is precisely what the Fifth 

Circuit accomplished in Mr. Sawyer's case.

38



For these reasons, the NAACP Legal 
Defense and Educational Fund, as amicus 
curiae, requests that the Court reverse 

the decision of the Fifth Circuit in Mr. 
Sawyer's case.

Respectfully submitted,

JULIUS L. CHAMBERS 
*RICHARD H. BURR 
GEORGE H. KENDALL 
STEVEN W. HAWKINS 
NAACP Legal Defense 
and Educational Fund 
99 Hudson Street, 16th FI. 
New York, New York 10013 
(212) 219-1900

Counsel for Amicus Curiae

*Counsel on Record

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