Griffith v. Kentucky Brief Amici Curiae in Support of Petitioners

    Nos. 85-5221 and 85-5731

I n t h e

i ’upmtu' (ftmart of %  llnxtih i&tntvB
October Term, 1985

R andall Lamont Griffith ,

v.

Commonwealth of Kentucky,

W illie Davis Brown,

v.

United States of A merica

Petitioner,

Respondent.

Petitioner,

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 TPIE TENTH CIRCUIT IN  NO. 85-5731

BRIEF OF THE NAACP LEGAL DEFENSE & 
EDUCATIONAL FUND, INC., AND THE AMERICAN 

JEWISH CONGRESS AS AMICI CURIAE IN 
SUPPORT OF PETITIONERS

L ois W aldman
The American Jewish 

Congress
15 East 84th Street 
New York, N.Y. 10028

J ulius LeVonne Chambers 
Charles Stephen Ralston 

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

Steven L. W inter*
University of Miami 

School of Law 
P.O. Box 248087 
Coral Gables, Fla. 33124-8087 
(305) 284-2392

Attorneys for the NAACP 
Legal Defense & Educational 
Fund, Inc.

^Counsel of Record



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)?



Cases: Page
Adams v. Texas, 448 U.S. 38

(1980)      18-19,21
Alexander v. Louisiana, 405 U.S.

625 (1972)      2,29
Allen v. Hardy, ___ U.S. ___,

No. 85-6593 (1986)     10
Arlington Heights v. Metropolitan 

Housing Development Corp.,
429 U.S. 252 (1977)   28-29

Arsenault v. Massachusetts,
393 U.S. 5 (1968)   12

Barclay v. Florida, 463 U.S. 939
(1983)   34

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

Batson v. Kentucky, 476 U.S. ___,
90 L.Ed.2d 69 (1986)   passim

Blackburn v. Alabama,361 U.S. 199 (1960) .....  12
Bob Jones University v. UnitedStates, 461 U.S 574 (1983) ... 27
Brown v. Louisiana, 447 U.S. 323

(1980).......... 7,8,22,24-25,26
Caldwell v. Mississippi, 472 U.S.

___, 86 L.Ed.2d 231 (1985) ... 33
Castaneda v. Partida, 430 U.S.

482 (1977) ..................  29

iv



Cases: Pacro
Davis v. Georgia, 429 U.S. 122(1976)   36
Desist v. United States, 394 U.S.244 (1969)   10
DeStefano v. Woods, 392 U.S. 631

(1968)    25,26
Engle v. Isaac, 456 U.S. 107

(1982)   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)   3,30

Gordon v. United States, No. 85-7726 (11th cir.) ............ 2
Gregg v. Georgia, 428 U.S 153(1976)   35
Hankerson v. North Carolina,

432 U.S. 233 (1977)   21,31,32
Ivan V. v. City of New York,

407 U.S. 203 (1972) ........  21
Johnson v. New Jersey, 384 U.S.719 (1966)     11
Jones v. Barnes, 463 U.S. 745(1983)   g
Keeble v. United States,

412 U.S. 205 (1973)   15

v



Linkletter v. Walker,
381U.S. 618 (1965).........7,10,11,12,37

Mackey v. United States,
401 U.S. 667 (1971)    8,9

McCray v. New York, 463 U.S.
961 (1983)   27

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

Parklane Hosiery Co. v. Shore,
439 U.S. 322 (1979)   14

Peters v. Kiff, 407 U.S. 493
(1972)   18

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

Stovall v. Denno, 388 U.S. 293
(1967)     10

Swain v. Alabama, 380 U.S. 202
(1965) ...................... 2,5,26,28

Taylor v. Louisiana, 419 U.S. 522
(1975)   13-14

Trop v. Dulles, 356 U.S. 86
(1958)   35-36

Turner v. Murray, 476 U.S. ___,
90 L.Ed.2d (1986)   33,34-35

United States v. Johnson,
457 U.S. 537 (1982)   4,8,12

United States v. The Schooner
Peggy, 5 U.S. (1 Cranch) 103 4,10(1801) ......................

Cases; Page

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)    31
Washington v. Davis, 426 U.S.

229 (1976) ................  29
Witherspoon v. Illinois,

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

(1983)   33-34

Other Authorities;
G. Allport & L. Postman,

THE PSYCHOLOGY OF RUMOR(1965)   17
Damaska, Presentation of Evidence 

and Fact-finding Precision.
123 U.Pa.L.Rev. 1083 (1975)..15-16,19-20

H. R.Rep. No. 1076, 90th Cong.,
2d Sess., reprinted in 1968U.S. CODE CONG. AND AD. NEWS1792 ........................ 14

0. Holmes, COLLECTED LEGAL PAPERS(1920)   14
Johnson, Black Innocence and 

the,White Jury. 83 Mich.L. Rev. 1611 (1985) ......... 17
H. Kalven, Jr., & H. Zeisel,

THE AMERICAN JURY (1966).... 19-22,23-24

vii



Authorities: Page
Deposition of Edward J. Peters

(April 12, 1985), in Edwards v.
Thiaoen, Civil Action No.
J83“0566(B)(S.D. Miss.) ..... 12-13

Priest & Klein, The Selection 
gI_Pispa.tfig_£QjL. Litigation,13 J. Legal Stud. 1 (1984) ... 9

Priest, The common _Law.Process
and the Selection of EfficientRules. 6 J. Legal Stud. 65
(1977)    9

viii



Nos. 85-5221 and 85-5731

IN THE
SUPREME COURT OF THE UNITED STATES 

OCTOBER TERM, 1985

RANDALL LAMONT GRIFFITH, PETITIONER
v.

COMMONWEALTH OF KENTUCKY, RESPONDENT

WILLIE DAVIS BROWN, PETITIONER 
v.

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 Educational 

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, see, e.q.. 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.q. . 
Gordon v. United States, No. 85-7726 (ilth

2



Cir.) (pending) ; M M .  _v, 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.

3



SHMMAB3L-QE ARGUMENT

At the least, decision in the two cases 
before the Court should follow from the 
Court's recent retroactivity decisions,
see, e,g,, Shea v. Louisiana, 470 U.S. ___,
84 L.Ed.2d 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 vt The— Schooner Peggy. 5 u.s. (l 
Cranch) 103 (1801).

Amici write separately, however, to put 
before the Court their views concerning the 
broader reach of the decision last Term in

4



Batgojo_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

5



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.

6



ARGUMENT

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
" [Resolution of the question of

retroactivity [i]s not automatic[]...."
Brown__v,__ 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. e.a. . Shea v.
Louisiana. 470 U.S. __ , 84 L.Ed.2d 38

7



(1985); unitsfl...Stakes...v J..._.ijohnsgn, 457 u.s. 
537 (1982); 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, J., 
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. 
Johnson. 457 U.S. at 555-56.

Third, it promotes the legitimacy of 
the constitutional decision-making 
process;1 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

8



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 then 
permitting a stream of similar cases 
subsequently to flow by unaffected by that 
new rule...." Mackev, 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 litigant8s 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, Tjje__Selection__of__ Disputes__forLitigation. 13 J. Legal Stud. 1 (1984)?
Priest, The Common_____ Process and the
Selection of Efficient Rules. 6 J . Legal Stud. 65 (1977).

9



tradition....n Desist v. United States. 394 
U.S. 244, 258 (1969) (Harlan, J., 
dissenting); see United States v. ThP 
sc,ho<?ner Peggy, 5 u.s. (i 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 Mukletter and its progeny.2 
In the sections that follow, we discuss the 
tripartite standard governing retroactivity 
articulated in Stovall v. Denno. 388 U.S. 
293, 297 (1967),3 as interpreted in 
subsequent cases.

2 Because the Court now has thebenefit of full briefing and argument on 
this issue, it would be appropriate to 
reconsider its contrary decision in Allen
— HSZdy, ___ U.S. ___, No. 85-6593 (June30, 1986).

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

10



a . The Exclusion.__fif__BlasKa__fmscriminal...-Juxies___&&fes&g___ inFundamental Wavs the, Accuracy andReliability of the Decision-making 
Process
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.
Louisiana —  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. L.ljLkletteg, 381 U.S. at 638? s^e,

Arsegaiilt 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 so one-dimensional. Nor is the
jury's judgment limited to the binary
alternatives of "guilt" or "innocence."
"[T]he jury plays a political function in
the administration of the law...." Tavlor
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.
Vasqqeg__v_.__Hillerv. 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."

v, shore. 439 u.s. 322, 341-42 (1979) (Rehnquist, J. , 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,

[i]magine 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, 
1085-86 (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.5

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

5 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 in Johnson,Black Innocence and_tfa.S.... Wh l.fce _ Ju ry, 8 3
Mich. L. Rev. 1611, 1645 (1985).

17



defendant that might be unfamiliar or even 
threatening to white jurors.6

The perception of primary, "external 
facts" is also affected by the values 
brought to the jury room. The Court 
recognized as much in Adams v. 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. Klff, 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 system. 
..." 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 answering questions 
of facts.

Kalven & Zeisel, supra. at 116.7

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. H[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 cubism, 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, 
suora, at 189 n. 5. Rather, they concluded 
that if a jury "decides close cases with a 
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 single 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 
HanKf£.gon_y« North Carolina, 432 U.S. 233 
(1977); XyaiL-V.. V,. CjtY of_K£W_XQ£k, 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, supra, 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. §&& Brown v, 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.8 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

outcome of the
verdict-" Kalven Ss Zeisel, supra. 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 crime ■—  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 ultimata 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." X£. 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; ggg_jUpQ SaUard 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, 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 f_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 
[Mtson] was directed toward elimination of 
just such a practice. Its purpose, 
therefore, clearly requires retroactive 
application." £d. at 334.9
B- 3Zhe— Reliance_by Prosecutors on Swain

Does____ Not__ Support Prospective
Application of the Standards Enunciated 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 by prosecutors. To

9 DeStefano v. Woods. 392 U.S. 631 
(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 
fi£2wn, 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.1" Batson. 90
L.Ed. 2d at 79 (quoting Swain.v.__AlSkSlS.,
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



prospectivity rule.10
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

eternal insulation by means of a

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." Vasouez 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 Coro.. 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 comparable 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, »[t]he 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 onward11 —  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 Coro. v, 
Gregn, 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." M-
c. The potential____Effigt____on----the

Admin i st r a t ion._ of . Is _Dofc__s3overwhelming as to___Override___the
Foregoing Factors
The balance of considerations raised by 

the concern for the effect of Batson on the 
administration of justice is not so 
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 9, 
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. Sge Walawrlght v. Svkes. 433 U.S. 
72 (1977)* Hankgrson_v_.„_North Carolina. 432 
U.S. at 244 n. 8. For those who did not 
perserve the claim, it is unlikely that

12 In 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 Encfle 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. See.. e. gt., EsquivgJL— v_jl 
McCotter. 791 F.2d 350, 351 (5th 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. &£§ Hanker son v̂ _iio£yi-CamLlna, 
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
capital sentencing proceeding---" Turner
v. Murrrav, 476 U.S. __ , 90 L.Ed.2d 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 Caldwell v, Mississippi. 472 u.s. 
__ , 86 L.Ed.2d 231, 247 n. 7 (1985), and

33



zant v, S t e p h e n s , 462 u . s .  862 ,  900 
(1983)(Rehnquiat, J., concurring)). Because 
"[i]t 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 
verdict 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 from 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 n. 22. See also Davis v. 
Georgia. 429 U.S. 122 (1976) (improper
exclusion of single Witherspoon juror 
requires reversal). So too, in capital 
cases in which the prosecution used its

36



perexnptories 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 Witherspoon. 391 U.S. at 523 n. 22 
(quoting Linkletter, 381 U.S. at 639).

37



CONCLUSION
For the foregoing reasons, the

j udgments 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.0. BOX 248087 
Coral Gables, Fla.

33124-8087 
(305) 284-2392

Attorneys for the NAACP 
Legal Defense & Educa­tional 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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