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    No. 8 5 - 5 2 2  1

I k  T he

Umpttme Court of tfje Hmtefc States
Octobee T eem, 1986

RANDALL LAMONT GRIFFITH,
Petitioner,

v.

COMMONWEALTH OF KENTUCKY,
Respondent.

On Writ Of Certiorari To 
The Supreme Court Of Kentucky

BRIEF FOR THE LAWYERS’ COMMITTEE 
FOR CIVIL RIGHTS UNDER LAW 

AS AMICUS CURIAE

H arold R. T yler, J e.
J ames R obertson 

Co-Chairmen 
Norman Redlioh 

Trustee
W illiam L. R obin son 
J udith A. W inston 
LAWYERS’ COMMITTEE FOR 

CIVIL RIGHTS UNDER LAW 
Suite 400
1400 Eye Street, N.W. 
Washington, D.C. 20005 
(202) 371-1212

Babby Sullivan 
Counsel of Record 

Mabshall J .  Schmitt 
JENNER & BLOCK 
One IBM Plaza 
Suite 4400
Chicago, Illinois 60611 
(312) 222-9350

Attorneys for Amicus Curiae

Midwest Law Printing Co., Chicago 60611, (312) 321-0220



TABLE OF CONTENTS

P age

TABLE OF AUTHORITIES ............. ................. iii
STATEMENT OF INTEREST OF

AMICUS CURIAE ............................................ 1
STATEMENT .........................................................  2
SUMMARY OF ARGUMENT ............................. 4
ARGUMENT:

I.
THE HOLDING IN BATSO N  MUST BE AP­
PLIED TO CASES PENDING ON DIRECT AP­
PEAL BECAUSE BATSON  REAFFIRMS PAST 
PRECEDENT AND DOES NOT COME WITH­
IN THE “CLEAR BREAK” EXCEPTION . .  6

A. The Holding In Batson Must Be Applied
To All Cases Pending On Direct Appeal 
Because Batson Reaffirmed 100 Years Of 
Precedent And Announced No New Sub­
stantive Constitutional S tan d ard .......... 8

B. The Holding In Batson Must Be Applied
To Cases Pending On Direct Appeal Be­
cause It Followed Well-Established Prin­
ciples Of Proof Developed After Swain .. 12

C. The Scheme Of Proof Adopted In Batson
Is No More Burdensome For The Com­
monwealth Than That Adopted After 
Swain ........................................................ 14



REGARDLESS OF W HETHER BATSO N  REP­
RESENTS “A CLEAR BREAK FROM THE 
PAST,” THE FAIRNESS AND INTEGRITY OF 
THE JUDICIAL PROCESS REQUIRES THAT 
THE HOLDING IN BATSON  BE APPLIED TO 
CASES PENDING ON DIRECT APPEAL . .

A. Unless Batson Applies To Cases Pending 
On Direct Appeal, Courts Will Be Forced 
Into Condoning Racial Discrimination De­
signed To Affect The Outcome Of Trials .

B. Cases Such As Batson Must Be Applied 
In A Consistently Predictable Way . . .

C. Applying Batson Prospectively Will Penal­
ize Griffith And Other Defendants Whose 
Cases Are Pending On Direct Appeal For 
The Merely Fortuitous Reason That Batson 
Was The First Case The Court Decided 
to Review .................................................

D. Defendants In The Same Situation As
Batson Must Be Treated in the Same 
Way ...........................................................

CONCLUSION



Ill

TABLE OF AUTHORITIES

Cases P age

Alexander v. Louisiana, 405 U.S. 625 (1972) .. 13
Allen v. Hardy, No. 85-6593 (U.S. June 30,1986) . 7, 16, 22
Arlington Heights v. Metropolitan Housing Develop­

ment Corp., 429 U.S. 252 (1977) ...................  11, 12
Batson v. Kentucky, 106 S. Ct. 1712 (1986) . . .  passim
California v. Ramos, 463 U.S. 992 (1983)........ 25
Desist v. United States, 394 U.S. 244 (1969) . . .

.............................. ................. 6, 7, 8, 20, 22, 24, 25
Fahy v. Connecticut, 375 U.S. 85 (1963)..........  18
Goldman v. United States, 316 U.S. 129 (1942) . 8
Griffin v. California, 380 U.S. 609 (1965) .........  18
Ivan V. v. New York, 407 U.S. 203 (1972) ___ 6,19
Johnson v. New Jersey, 384 U.S. 719 (1966) .. 22
Katz v. United States, 389 U.S. 347 (1967)___ 8
Ker v. California, 374 U.S. 23 (1963) ...............  18
Linkletter v. Walker, 381 U.S. 618 (1965) ........ 6, 18
Mackey v. United States, 401 U.S. 667 (1971) . . .

..............................................................  6,22,24,25,26
Mapp v. Ohio, 367 U.S. 643 (1961) ...............  18
Marburg v. Madison, 1 U.S. 267, 1 Cranch 137

(1803) ..................................................................  24
Maryland v. Baltimore Radio Show, Inc., 338 U.S.

912 (1950) ................    24
McCray v. New York, 461 U.S. 961 (1983)___ 16, 23



IV

Olmstead v. United States, 277 U.S. 438 (1928) .. 8
People v. Wheeler, 22 Cal. 3d 258, 583 P.2d 748

(1978) ........................... ............. 16
Peters v. Kiff, 407 U.S. 493 (1972) .....................  17
Shea v. Louisiana, 105 S. Ct. 1065 (1985)........ 4, 6, 7
Solemn v. Stumes, 465 U.S. 638 (1984) . . . . . . .  7, 15, 19
Stoner v. California, 376 U.S. 483 (1964) .......... 18
Strauder v. West Virginia, 100 U.S. 303 (1880) ..

................................................................... 4 ,5 ,9 ,12,26
Swain v. Alabama, 380 U.S. 202 (1965) ..........passim
Taylor v. Louisiana, 419 U.S. 522 (1975) .......... 17
Tehan v. United States, 382 U.S. 406 (1966) .. 18
Turner v. Murray, 106 S. Ct. 1683 (1986) ........ 25
United States v. Johnson, 457 U.S. 537 (1982) . . .

.......................................................  4,7,8,12,18,22,26
United States v. Peltier, 422 U.S. 531 (1975) .. 18,20
United States v. Ross, 456 U.S. 798 (1982) . . . .  15
Washington v. Davis, 426 U.S. 229 (1976). 13
Williams v. United States, 401 U.S. 646 (1971) .. 7
Wolf v. Colorado, 338 U.S. 25 (1949) . 18
Woodson v. North Carolina, 428 U.S. 280 (1976) . 25

Statutes
18 U.S.C. § 243 (1982) ............................  5
28 U.S.C. § 1254 (1982) ..................  24
28 U.S.C. § 1257 (1982) ........... .   24
28 U.S.C. § 1258 (1982) ........................  24



V

Rules
Supreme Court Rule 36.2 .............................    2
Kentucky Criminal Rule 9.30 .................    3

Books
H. Kalven and H. Zeisel, The American Jury

(1966) ..........................................................   19
R. Simon, The Jury and the Defense of Insanity

(1967) ..................................................................  20
J. Van Dyke, Jury Selection Procedures: Our Un­

certain Commitment to Representative Panels 
(1977)  ..................................................   20

Articles
Adler, Socioeconomic Factors Influencing Jury 

Verdicts, 3 N.Y.U. Rev. L. & Soc. Change 1 
(1973) .........       19

Bell, Racism in American Courts: Cause For 
Black Disruption or Despair?, 61 Calif. L. Rev.
165 (1973) .........     19

Bernard, Interaction Between the Race o f the 
Defendant and That o f Jurors in Determining 
Verdicts, 5 L. & Psych. Rev. 103 (1979) . . .  19

Broeder, The Negro in Court, 1965 Duke L.J. 19 . 19
Comment, A Case Study of the Peremptory Chal­

lenge: A  Subtle Strike at Equal Protection and 
Due Process, 18 St. Louis U.L.J. 62 (1974) .. 19

Davis & Lyles, Black Jurors, 30 Guild Prac. I l l
(1973) ..................................................................  19



Gerard & Terry, Discrimination Against Negroes 
in the Administration o f Criminal Law in 
Missouri, 1970 Wash. U.L.Q. 415 .................  19

Ginger, What Can Be Done to Minimize Discrimi­
nation in Jury Trials?, 20 J. Pub. L. 427 
(1971) ..................................................................  19

Gleason & Harris, Race, Socio-Economic Status, 
and Perceived Similarity as Determinants of 
Judgments by Simulated Jurors, 3 Soc. Behav.
& Personality 175 (1975) ................................  19

McGlynn, Megas & Benson, Sex and Race As Fac­
tors Affecting the Attribution of Insanity in a 
Murder Trial, 93 J. Psych. 93 (1976) .......... 19

Rhine, The Jury: A  Reflection of the Prejudices 
of the Community in Justice on Trial (D. 
Douglas & P. Nobel, eds. 1971) ...................  20

Tussman and tenBroek, The Equal Protection of
the Laws, 37 Calif. L. Rev. 341 (1949)........ 26

Ugwuegbu, Racial and Evidential Factors in 
Juror Attribution of Legal Responsibility, 15 
J. Experimental Soc. Psych. 133 (1979) ----  20

vi



No. 8 5 - 5 2 2  1

I n  The

ibupreme Court ot tfje Umteir States
October T erm, 1986

RANDALL LAMONT GRIFFITH,
Petitioner,

v.

COMMONWEALTH OF KENTUCKY,
Respondent.

On Writ Of Certiorari To 
The Supreme Court Of Kentucky

BRIEF FOR THE LAWYERS’ COMMITTEE 
FOR CIVIL RIGHTS UNDER LAW 

AS AMICUS CURIAE

STATEMENT OF INTEREST OF 
AMICUS CURIAE

The Lawyers’ Committee for Civil Rights Under Law 
was organized in 1963, at the request of the President 
of the United States, to involve private attorneys in the 
national effort to assure the civil rights of all Americans. 
During the past 23 years, the Lawyers’ Committee and 
its local affiliates have enlisted the services of thousands 
of members of the private bar in addressing the legal



■2-

problems of minorities and the poor. The Committee’s 
membership today includes past presidents of the Amer­
ican Bar Association, a number of law school deans, and 
many of the nation’s leading lawyers. The importance to 
our system of justice of having criminal verdicts rendered 
by juries untainted by racial discrimination, and the wide­
spread perception that prosecutors have exercised peremp­
tory challenges in a discriminatory manner, prompted the 
Lawyers’ Committee to file a brief amicus curiae in Bat­
son v. Kentucky, 106 S. Ct. 1712 (1986). The same con­
cerns have prompted the Lawyers’ Committee to file a 
brief amicus curiae in this case. The parties have con­
sented to the filing of this brief, which is therefore sub­
mitted pursuant to Supreme Court Rule 36.2.

STATEMENT

Petitioner Randall Lamont Griffith, a black man, was 
convicted by a Kentucky state jury of first degree rob­
bery and second degree persistent felony, based upon his 
alleged theft of a purse (J.A. 2-3, 7-8). He was sentenced 
to a term of 20 years’ imprisonment (J.A. 7-8). Petitioner 
was tried approximately three months after the trial of 
James Kirkland Batson, whose conviction was reviewed 
by this Court last Term (see Batson v. Kentucky, 
106 S. Ct. 1712 (1986)); both trials were conducted by the 
same prosecutor (Br. Opp. 1).

At petitioner’s trial, the Commonwealth used four 
peremptory challenges to remove four of the five black



- 3

veniremen (J.A. 12-13).1 The fifth black venireman was 
excused by the clerk pursuant to a random procedure pre­
scribed by Kentucky Criminal Rule 9.30 (J.A. 15; Pet. 3). 
Petitioner interposed a timely objection to the Common­
wealth’s use of its peremptory challenges and moved to 
discharge the jury (J.A. 10-16). The Commonwealth gave 
an explanation for having challenged two of the four black 
veniremen whom it had excused (J.A. 14). The trial court 
then overruled petitioner’s objection and denied his mo­
tion (J.A. 14-16).

The Supreme Court of Kentucky affirmed petitioner’s 
conviction (J.A. 17-18). Ostensibly based on this Court’s 
decision in Swain v. Alabama, 380 U.S. 202 (1965), the 
Kentucky Supreme Court rejected petitioner’s Fourteenth 
Amendment claim, holding “that the striking of all blacks 
from a jury panel in a particular case is not a denial of 
equal protection” (J.A. 17-18).

The petition for a writ of certiorari was filed on August 
9, 1985. On June 2, 1986, this Court granted certiorari 
to determine whether the holding in Batson v. Kentucky 
should be applied to cases pending on direct appeal 
(J.A. 19).2

1 The jury was chosen by a “blind strike” system. See Batson, 
106 S. Ct. at 1715 n.2. One of the blacks struck by the Common­
wealth also was struck by petitioner (J.A. 12-13).
2 In its brief in opposition (Br. Opp. 1), the Commonwealth ar­
gued that “[c]ertiorari should be denied in the case at bar since 
the Batson case will provide an adequate vehicle to consider ques­
tions relating to allegedly discriminatory exercise of peremptory 
challenges.”



—4—

SUMMARY OF ARGUMENT

In this case, the Court must decide whether it will allow 
prosecutors to rely on Swain v. Alabama, 380 U.S. 202 
(1965), to immunize discrimination that Swain itself con­
demned. This Court stated the principle of law applicable 
to this case in Shea v. Louisiana, 105 S. Ct. 1065, 1069-70 
(1985), in which the Court held that a new constitutional 
rule must always “be applied to cases pending on direct 
review” except where “the rule is so clearly a break with 
the past that prior precedents mandate nonretroactivity.” 
This presumption of retroactivity is mandated by consid­
erations central to the Court’s judicial function: “applica­
tion of a new rule of law to cases pending on direct re­
view is necessary in order for the Court to avoid being 
in the position of a super-legislature, selecting one of 
several cases before it to use to announce the new rule 
and then letting all other similarly situated persons be 
passed by unaffected and unprotected by the new rule.” 
105 S. Ct. at 1069 (citations omitted). As the Court ex­
plained in United States v. Johnson, 457 U.S. 537, 551 
(1982), the “clear break” exception is a narrow one which 
applies only when the Court “disapproves a practice [it] 
. . . arguably has sanctioned in prior cases.” These prin­
ciples require that the holding in Batson be applied to 
cases pending on direct appeal.

First, the Court’s holding in Batson does not constitute 
a “clear break” in the sense of “disapproving] a prac­
tice this Court arguably has sanctioned in prior cases.” 
Johnson, 457 U.S. at 551. For more than 100 years, since 
the Court’s decision in Strauder v. West Virginia, 100 
U.S. 303 (1880), this Court repeatedly, emphatically, and 
consistently has condemned the practice of discriminating



5

against citizens, because of their race, in the context of 
jury selection. This Court soundly condemned that prac­
tice in Swain v. Alabama, 380 U.S. 202 (1965), and 
reiterated that condemnation in Batson. Indeed, the ex­
clusion of persons from jury service in state or federal 
courts, based on their race, has been a federal criminal 
offense since 1875. See 18 U.S.C. § 243 (1982).

By no stretch of the imagination, therefore, could it be 
asserted that Swain permitted what Batson condemns. 
By no stretch of the imagination could it be asserted that 
prosecutors were entitled, before this Court’s decision in 
Batson, to discriminate against criminal defendants and 
veniremen because of their race. At most, the Court’s 
holding in Batson merely altered the means by which a 
defendant may prove discrimination in the jury selection 
process. That alteration was necessary because the scheme 
of proof adopted by the lower courts in the years follow­
ing Swain was inconsistent with well-established, general 
principles of equal protection law, as articulated in numer­
ous decisions of this Court, and because it was ineffective 
as a means of enforcing the prohibition against discrimina­
tion articulated in Strauder, Swain, and other cases. See 
Batson, 106 S. Ct. at 1720-21, 1724. In Batson, the Court 
broke no ground, either in terms of substantive constitu­
tional principle or in terms of principles of proof. At most, 
the Court applied well-established principles of proof to 
an area in which some lower courts had not done so.

Second, even if Batson is in some sense a “break” with 
past precedent, it is not the kind of break that mandates 
non-retroactivity. For at least four separate reasons, the 
integrity of the judicial process requires that the Court 
apply the holding in Batson to cases pending on direct 
appeal. First, as this Court’s cases demonstrate, the Court 
has often applied the holdings of “clear break” cases to



- 6 -

cases pending on direct appeal, where the new rule is de­
signed, as here, to protect the integrity of the judicial 
system and enhance public confidence in the impartial ad­
ministration of justice. In such circumstances, the very 
reasons which warranted adoption of the new rule also 
mandate its application to pending cases. See, e.g., Linklet- 
ter v. Walker, 381 U.S. 618 (1965); Ivan V. v. New York, 
407 U.S. 203 (1972). The other three considerations which 
compel retroactivity in a case such as this were well 
described by Justice Harlan in Desist v. United States, 
394 U.S. 244, 256-69 (1969) (Harlan, J., dissenting), and 
Mackey v. United States, 401 U.S. 667, 675-702 (1971) 
(Harlan, J., concurring in part). Those considerations are 
consistency of principle, the need to avoid the rendering 
of “advisory opinions,” and the fundamental judicial duty 
to treat similar cases in a similar way. Desist, 394 U.S. 
at 258-59. In a case such as Batson, where the new rule 
strikes at an evil close to the heart of the judicial proc­
ess itself, these four considerations compel retroactivity.

ARGUMENT

I.
THE HOLDING IN BATSO N  MUST BE APPLIED TO 
CASES PENDING ON DIRECT APPEAL BECAUSE BA T­
SON  REAFFIRM S PAST PRECEDENT AND DOES NOT 
COME WITHIN THE “ CLEAR BREAK” EXCEPTION.

In Shea v. Louisiana, 105 S. Ct. 1065, 1069-70 (1985), 
this Court concluded that, unless a constitutional rule “is 
so clearly a break with the past that prior precedents 
mandate nonretroactivity, [the] . . . new . . . rule . . . 
[should] be applied to cases pending on direct review when



- 7 -

the rule was adopted.” The Court has defined a clear 
break case as one in which the Court “disapproves a prac­
tice [it] . . . arguably has sanctioned in prior cases.” 
United States v. Johnson, 457 U.S. 537, 551 (1982).3 In 
other words, the new rule must preclude the police or 
the prosecutor from doing something which they were con­
stitutionally entitled to do before the decision was an­
nounced. See, e.g., Williams v. United States, 401 U.S. 646 
(1971); Desist v. United States, 394 U.S. 244 (1969).

The “clear break” exception has no application here 
because Batson established no new principle of consti­
tutional law. As the Court expressly noted in Batson, the 
Constitution has prohibited prosecutors from practicing 
racial discrimination in jury selection for more than 100 
years (106 S. Ct. at 1719). All that Batson did was to

3 In Allen v. Hardy, No. 85-6593 (June 30, 1986), this Court held 
that Batson does not apply to cases in which the judgment became 
final before Batson was decided. No inference is to be drawn from 
the summary disposition in Allen because the Court specifically 
reserved judgment “on the question whether . . . [its] decision in 
Batson should be applied to cases that were pending on direct ap­
peal.” Slip op. at 3 n.l. In any event, the holding in Allen is not 
inconsistent with our position in this case because this Court has 
long distinguished between cases pending on direct appeal and 
those on collateral attack. Desist v. United States, 394 U.S. 244, 
260-69 (1969) (Harlan, J., dissenting); compare Solem v. Stumes, 
465 U.S. 638 (1984), with Shea v. Louisiana, 105 S. Ct. 1065 (1985). 
Moreover, although the Allen Court suggested that Batson may 
in some sense be viewed as “an explicit and substantial break with 
prior precedent” (slip op. at 3), the Court clearly did not find that 
possible characterization to be dispositive because, in fact, the 
Court in Allen then proceeded to apply the three factors articu­
lated in Solem v. Stumes to determine whether Batson should be 
applied to cases on collateral attack (slip op. at 4-6), an analysis 
which would have been wholly unnecessary if that observation had 
been controlling. Indeed, as we show below (see pages 8-14, infra) 
that observation cannot be controlling in any event because it is 
inconsistent with the Court’s analysis in Batson itself.



—8—

disapprove a scheme of proof which some lower courts had 
developed after Swain, and to bring the rules of proof 
in this area into conformity with general principles of 
Fourteenth Amendment law, as articulated in numerous 
decisions of this Court. Batson, 106 S. Ct. at 1720-24. In 
this sense, Batson reaffirms existing law, and does not 
depart from it.

A. The Holding In Batson Must Be Applied To All Cases 
Pending On Direct Appeal Because Batson Reaffirmed 
100 Years Of Precedent And Announced No New Sub­
stantive Constitutional Standard.

In United States v. Johnson, this Court explained why 
cases that represent “a clear break with the past” should 
ordinarily be given only prospective application (457 U.S. 
at 549-50; citations omitted): “Once the Court has found 
the new rule was unanticipated, the second and third 
Stovall factors—reliance by law enforcement authorities 
on the old standards and effect on the administration of 
justice of a retroactive application of the new rule—have 
virtually compelled a finding of nonretroactivity.” For ex­
ample, the Court in Desist (394 U.S. at 250-51) found it 
unfair to hold the police to the new “expectation of pri­
vacy” standard announced in Katz v. United States, 389 
U.S. 347 (1967), when they had relied on the old “tres­
pass” standard articulated in Goldman v. United States, 
316 U.S. 129 (1942), and Olmstead v. United States, 277 
U.S. 438 (1928).

In Katz, the Court announced a new substantive stan­
dard of constitutional law. In Batson, by contrast, no new 
substantive constitutional standard was announced. Since 
the ratification of the Fourteenth Amendment, this Court 
has consistently and steadfastly refused to sanction racial 
discrimination in jury selection. Batson, 106 S. Ct. at



- 9 -

1719. Indeed, few principles are more well-established in 
our constitutional jurisprudence. More than 100 years ago, 
in Strauder v. West Virginia, 100 U.S. 303 (1880), this 
Court held that the state violates the equal protection 
clause of the Fourteenth Amendment by trying a defen­
dant before a jury from which the state has excluded blacks. 
As this Court explicitly recognized in Batson (106 S. Ct. 
at 1719), “[t]he principles announced in Strauder never 
have been questioned in any subsequent decision of this 
Court.”

As it noted in Batson (106 S. Ct. at 1719), this Court 
has repeatedly reaffirmed the principles of Strauder and 
has applied them to particular facts, most significantly, 
for present purposes, in Swain v. Alabama, 380 U.S. 202, 
222-24 (1965).4 Thus, as the Court explained in Batson, 
the Swain Court clearly and unequivocally held that “[i]t 
was impermissible for a prosecutor to use his challenges 
to exclude blacks from the jury ‘for reasons wholly unre­
lated to the outcome of the particular case on trial’ or 
to deny blacks ‘the same right and opportunity to partici­
pate in the administration of justice enjoyed by the white 
population’ ” (106 S. Ct. at 1720; quoting Swain, 380 U.S. 
at 224). In Swain, the Court also held that a defendant 
could establish a prima facie case of purposeful discrimina­
tion by showing that the state had systematically excluded 
blacks from juries (380 U.S. at 222-24). Finally, as Justice

4 As the Court noted in Batson (106 S. Ct. at 1719), Swain was 
not the most recent case dealing with this issue because, as the 
Court recognized, the constitutional issues relating to discrimina­
tion in the selection of petit juries are indistinguishable from those 
relating to discrimination in the selection of grand juries, and the 
Court, in the years since Swain, had decided numerous cases 
relating to the latter, all of which not only supported, but also 
mandated, the Court’s holding in Batson. See pages 12-13, infra.



- 1 0 -

White, the author of Swain, observed in his concurring 
opinion in Batson (106 S. Ct. at 1725 n.*), it would not 
“have been inconsistent with Swain for the trial judge 
to invalidate [the prosecutor’s] peremptory challenges . . . 
if the prosecutor . . . stated that he struck blacks because 
he believed they were not qualified to serve as jurors, 
especially in the trial of a black defendant.”

In Batson, this Court reaffirmed that Swain prohibited 
racial discrimination in the selection of jurors, but rejected 
the scheme of proof which some lower courts had subse­
quently adopted to enforce the constitutional principles 
stated in Swain and its antecedents. Batson, 106 S. Ct. 
at 1720-25. The Court in Batson stated (id. at 1720-21; 
footnotes omitted):

A number of lower courts following the teaching of 
Swain reasoned that proof of repeated striking of 
blacks over a number of cases was necessary to es­
tablish a violation of the Equal Protection Clause. 
Since this interpretation of Swain has placed on 
defendants a crippling burden of proof, prosecutors’ 
peremptory challenges are now largely immune from 
constitutional scrutiny. . . . [W]e reject this eviden­
tiary formulation as inconsistent with standards that 
have developed since Swain for assessing a prima 
facie case under the Equal Protection Clause.

This Court rejected the lower courts’ interpretations of 
Swain, not only because those interpretations had effec­
tively eviscerated the rights of criminal defendants to be 
free from racial discrimination in the exercise of peremp­
tory challenges, but also because those interpretations of 
Swain were wrong. Although the Court conceded that 
Swain itself might have been clearer, the Court suggested 
that the narrow view of Swain adopted by some lower 
courts had resulted from the failure of those courts to 
appreciate the fundamental inconsistency between their



- 1 1 -

interpretations of Swain and the general principles of 
Fourteenth Amendment law which this Court had articu­
lated in other cases. Batson, 106 S. Ct. at 1722. The Bat­
son Court succinctly explained that fundamental incon­
sistency (106 S. Ct. at 1722; citations omitted; emphasis 
in original):

Thus, since the decision in Swain, this Court has 
recognized that a defendant may make a prima facie 
showing of purposeful racial discrimination in selec­
tion of the venire by relying solely on the facts con­
cerning its selection in his case. These decisions are 
in accordance with the proposition, articulated in Ar­
lington Heights v. Metropolitan Housing Corp., 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 compar­
able decisions.” For evidentiary requirements to dic­
tate that “several must suffer discrimination” before 
one could object, would be inconsistent with the promise 
of equal protection to all.

Accordingly, Batson formulated no new substantive con­
stitutional standard. Nor did the Court in Batson disap­
prove any practice which it had previously sanctioned. At 
most, Batson disapproved some lower court rulings which 
misconstrued the Court’s decision in Swain and were radi­
cally inconsistent with numerous holdings of this Court in 
closely analogous areas of the law.5

5 In a footnote at the close of its opinion, the Court in Batson 
suggested that “[t]o the extent that anything in Swain v. Alabama 
is contrary to the principles. . . [the Court] articulate[s] today, that 
decision is overruled” (106 S. Ct. at 1725 n.25; citation omitted). 
That footnote does not, of course, signal any intention to over­
rule Swain. Indeed, it suggests the contrary, that the Court did 

(Footnote continued on following page)



—12—

B. The Holding In Batson Must Be Applied To Cases Pend­
ing On Direct Appeal Because It Followed Well-Estab­
lished Principles of Proof Developed After Swain.

To the extent that Batson may be viewed as modifying 
Swain itself, Batson should not be viewed as creating new 
law, but as applying “settled precedents to new and dif­
ferent factual situations,”5 6 a posture which requires appli­
cation of the “new” precedent to cases pending on direct 
appeal. Johnson, 457 U.S. at 548-49.

As we have shown (see pages 7-11, supra), the Batson 
Court discussed at substantial length the general develop­
ment of equal protection law in this Court’s post-Swain 
cases and demonstrated that the lower courts’ inter­
pretations of Swain were utterly inconsistent with the 
general principles articulated in those cases. Of greatest 
significance, the Court noted that its prior decisions had 
clearly established the principle that “ ‘[a] single invidious­
ly discriminatory governmental act’ is not ‘immunized by 
the absence of such discrimination in the making of other 
comparable decisions.’ ” 106 S. Ct. at 1722 (quoting Arl­
ington Heights v. Metropolitan Housing Development 
Corp., 429 U.S. 252, 266 n.14 (1977)). In addition, as the

5 continued
not view Batson as being inconsistent in any way with Swain 
itself. All that this footnote does is to suggest to the lower courts 
(some of whose previous interpretations of Swain had been ex­
pressly disapproved in Batson) that they should now look prin­
cipally to Batson as the most complete and most recent statement 
of the law. If the Court had wished to overrule Swain, it certain­
ly would have done so explicitly. In fact, however, as the Court 
repeatedly recognized in Batson, there was no need to overrule 
Swain because the problem rested with the lower courts’ interpre­
tations of that decision, not with the decision itself.
6 In Batson, the Court correctly characterized Swain itself as a 
case applying the principles announced in Strauder “to particular 
facts.” 106 S. Ct. 1719 & n.13.



- 1 3 -

Court noted, it is well-established that if a party makes 
out “a prima facie case of purposeful discrimination by 
showing that the totality of the relevant facts give rise 
to an inference of discriminatory purpose” (id. at 1721; 
citing Washington v. Davis, 426 U.S. 229, 239-42 (1976)), 
the burden shifts to the state to explain the exclusion (106 
S. Ct. at 1721; citing Alexander v. Louisiana. 405 U.S. 
625, 632 (1972)).

In particular, the Court noted that these principles had 
long been held applicable to the closely analogous area 
of discrimination in the selection of jury venires (106 S. 
Ct. at 1722; citations omitted):

In cases involving the venire [which have been de­
cided since Swain], this Court has found a prima facie 
case on proof that members of the defendant’s race 
were substantially underrepresented on the venire 
from which his jury was drawn, and that the venire 
was selected under a practice providing “the oppor­
tunity for discrimination.”

In addition, as the Court further explained in Batson, 
“[t]he basic principles prohibiting exclusion of persons 
from participation in jury service on account of their race 
‘are essentially the same for grand juries and for petit 
juries’ ” (106 S. Ct. at 1716 n.3; citations omitted). Sig­
nificantly, the Court, in making this observation, expressly 
relied on its decision in Alexander v. Louisiana, 405 U.S. 
625, 626 n.3 (1972), a case which not only condemned dis­
crimination in the selection of grand juries, but also adopted 
a scheme of proof identical to that adopted in Batson. That 
case was decided more than 14 years ago.

By applying these well-established principles of equal 
protection law to the area of peremptory challenges, the 
Court in no sense can be said to have decided Batson in 
a way that constitutes a “clear break” with past prece­



- 1 4 -

dent. Batson merely applied clearly established law to a 
new area in which its applicability not only was foresee­
able, but actually was mandated by the fundamental need 
for uniformity in the law.

C. The Scheme Of Proof Adopted In Batson Is No More 
Burdensome For The Commonwealth Than That Adopted 
After Swain.

The Commonwealth doubtless will argue that Batson 
overruled Swain. As we have shown (see pages 7-14, 
supra), this argument misconstrues the body of precedent 
upon which Batson and Swain are founded. Nevertheless, 
the Commonwealth still cannot argue that it will be prej­
udiced by application of Batson to cases pending on direct 
appeal. The burden caused by such a holding cannot be 
unduly severe because it will require substantially the 
same proof that the Commonwealth would have had to 
adduce in order to rebut a Swain showing. Under Swain, 
statistical evidence suggesting a pattern or practice of dis­
crimination did not, of course, create an irrebuttable pre­
sumption that discrimination had occurred, either in the 
cases constituting the statistical sample or in the case on 
trial (380 U.S. at 224-25). If the prosecution had valid, non- 
discriminatory reasons for challenging the black venire­
men—either in the case on trial or in the cases comprising 
the statistical sample—those reasons could have been used 
to rebut the Swain showing (380 U.S. at 224-25).

In short, Swain itself required prosecutors to exercise 
their peremptory challenges based upon valid, non-dis- 
criminatory reasons. Even if Swain did not require that 
those reasons be put on the record, it certainly required 
those reasons to be formulated, and, given the scheme 
of proof mandated by Swain and its progeny, prosecutors 
surely were counselled to retain records as to the use of



- 1 5 -

their peremptories in case after case, if they wished to 
prevail against a Swain-type challenge.

If prosecutors have chosen not to retain such evidence, 
they have done so only because of the very ineffectiveness 
which the Batson Court perceived in the scheme of proof 
developed after Swain (106 S. Ct. at 1720-21, 1724). Thus, 
if prosecutors have failed to preserve such evidence, they 
have done so only because of the widespread perception 
that, under Swain and its progeny, such information 
would be more useful to defendants in making a Swain 
showing than to prosecutors in explaining their reasons 
for striking black jurors.

To the extent that prosecutors may now claim detrimen­
tal reliance, that claim rings hollow. The Commonwealth 
is without standing to argue that its own failure to for­
mulate and record reasons for using its peremptory chal­
lenges precludes the application of Batson to pending 
cases. Prejudice cannot be established based on the fact 
that prosecutors may have failed to preserve the neces­
sary information, when that failure, in turn, was based 
on some tactical advantage which, under Swain and its 
progeny, prosecutors perceived to exist in the non-reten­
tion of that evidence. This Court has never held such 
“[ujnjustified ‘reliance’ [to be] . . .  a bar to retroactiv­
ity.” Solem v. Stumes, 465 U.S. at 646; see also United 
States v. Ross, 456 U.S. 798, 824 n.33 (1982) (“Any inter­
est in maintaining the status quo that might be asserted 
by persons who may have structured their [illicit] busi­
ness . . .  on the basis of judicial precedents clearly would 
not be legitimate.”).

To cause the Commonwealth now to return to the 
relatively small number of cases pending on direct appeal, 
and to explain its reasons for four or five peremptory chal­



16

lenges, is a minimal burden compared to that contem­
plated by Swain and its progeny—where the Common­
wealth might have had to explain its use of peremptory 
challenges in hundreds of cases spanning many years. In 
many of the cases now pending on direct appeal, the issue 
will be easily resolved. In some cases, the point will not 
have been preserved at all. In others, the parties wall 
have made a thorough public record as to the exercise 
of peremptories. In still others, the prosecutor will have 
retained non-public records in anticipation of having to 
meet a Swain showing.7

As a result, the administrative burden on the states will 
be small, particularly when compared to the benefits that 
will flow from retroactive application of Batson, in the

7 The prosecutor’s attempt in the instant case to explain two of 
his four challenges on the record (J.A. 14) suggests that parties 
were aware of the need for developing a record on this issue long 
before Batson was decided. The reasons are obvious. First, under 
Swain, prosecutors were clearly obligated to formulate non-discrim- 
inatory reasons for striking jurors, even if they were not required 
to put them on the record. Second, the bar had long recognized 
that certain lower court interpretations of Swain were out of step 
with general principles of Fourteenth Amendment law, a point 
upon which this Court specifically relied in Batson (see pages 10-14, 
supra). Indeed, since at least 1978, when the California Supreme 
Court decided People v. Wheeler, 22 Cal. 3d 258, 583 P.2d 748 
(1978), the bar has given considerable attention to the making of 
a proper record on the use of peremptory challenges, in anticipa­
tion of an imminent correction by this Court of the unsound prin­
ciples adopted by some lower courts. In this sense, it is signifi­
cant that petitioner (like most defendants whose convictions have 
not yet become final) was tried after this Court denied certiorari 
in McCray v. New York, 461 U.S. 961 (1983), a case in which five 
members of the Court specifically urged the lower courts to recon­
sider their interpretations of Swain. Most cases tried before that 
process of reevaluation began have long since passed beyond direct 
review, and, under Allen v. Hardy, will not be subject to a holding 
in this case mandating retroactive application of Batson. See page 
7, note 3, supra.



- 1 7 -

sense of restoring public confidence in a judicial system 
in which all men and women stand equal before the law, 
regardless of race or color, to be dealt with fairly and 
impartially on the basis of facts, rather than prejudice. 
See Taylor v. Louisiana, 419 U.S. 522, 530 (1975) (pur­
pose of the jury is “to guard against the exercise of arbi­
trary power”); Peters v. Kiff, 407 U.S. 493, 503-04 (1972) 
(excluding blacks from jury service might exclude a range 
of human nature and experience which “may have un­
suspected importance in any case that may be presented”).

II.
REGARDLESS OF WHETHER BATSON  REPRESENTS “A 
CLEAR BREAK FROM THE PAST,”  THE FAIRNESS 
AND INTEGRITY OF THE JUDICIAL PROCESS R E ­
QUIRES THAT THE HOLDING IN BATSON  BE APPLIED 
TO CASES PENDING ON DIRECT APPEAL.

To the extent that Batson might be considered a “clear 
break” case, this Court still must apply its holding to 
cases pending on direct appeal, as the Court has done 
with other “clear break” cases, to preserve public confi­
dence in the integrity and fairness of the judicial process. 
Four overriding concerns of integrity and fairness man­
date that result. First, prosecutors routinely challenge 
black veniremen for the simple reason that prosecutors 
perceive that the exclusion of blacks from petit juries 
makes it easier to convict criminal defendants, particularly 
those who are black. Such invidious discrimination under­
mines the reliability of the verdicts pending on direct ap­
peal, and, pursuant to this Court’s precedents, requires 
that Batson be applied to cases pending on direct review. 
Second, fundamental constitutional rules must be applied 
in a consistent and predictable way to avoid manipula­
tion of constitutional principle and to avoid waste of 
judicial resources. Third, the constitutional function of this



- 1 8 -

Court requires that the Court decide the cases that come 
before it on the merits of each case. Fourth, petitioner 
and other similarily situated defendants are entitled to 
be treated in the same way as Batson.

A. Unless Batson Applies To Cases Pending On Direct Ap­
peal, Courts Will Be Forced Into Condoning Racial 
Discrimination Designed To Affect The Outcome Of 
Trials.

Even in “clear break” cases, this Court has applied 
newly-decided constitutional rules to cases pending on 
direct appeal where such application is essential to the 
integrity of the judicial process and to public confidence 
in the impartial administration of justice. For example, 
this Court applied Mapp v. Ohio, 367 U.S. 643 (1961), 
which overruled Wolf v. Colorado, 338 U.S 25 (1949), to 
cases pending on direct appeal when Mapp was decided. 
See, e.g., Linkletter v. Walker, 381 U.S. 618, 619, 622 & n.4 
(1965); Stoner v. California, 376 U.S. 483 (1964); Fahy v. 
Connecticut, 375 U.S. 85 (1963); Ker v. California, 374 
U.S. 23 (1963); see also United States v. Johnson, 457 U.S. 
at 549 (citing United States v. Peltier, 422 U.S. 531, 547 
n.5 (1975) (Brennan, J., dissenting) (collecting “clear 
break” cases)).

Although the petitioner in Linkletter attacked only the 
admissibility of evidence, and not the fairness of the trial, 
the Court still found it appropriate to apply Mapp to cases 
pending on direct appeal, arguably because the Mapp rule 
had been formulated to curb widespread abuse in the ad­
mission of illegally obtained evidence, which had occurred 
under Wolf, to the detriment of the integrity of the courts 
and public confidence in the judicial system. Linkletter, 
381 U.S. at 629-36; see also Tehan v. United States, 382 
U.S. 406, 409 n.3 (1966) (applying Griffin v. California,



- 1 9 -

380 U.S. 609 (1965), to cases on direct appeal). Similarly, 
the Batson Court perceived that the rule articulated in 
Batson was necessary, in part, because the interpretations 
of Swain adopted by some lower courts had immunized 
state prosecutors who chose to discriminate (106 S. Ct. at 
1720-21).

The Court has found it most appropriate to give retro­
active application to a new rule when it is designed, at 
least in part, to enhance the reliability of the trial. Solem, 
465 U.S. at 643; Ivan V., 407 U.S. at 204. Prosecutors 
discriminate against black veniremen for only one reason, 
which goes to the very heart of the judicial process: prose­
cutors believe that eliminating blacks from the jury panel 
will affect the outcome of the case and make a con­
viction easier to obtain, a belief which is well-founded 
on social science studies.8 In effect, when prosecutors

8 Social scientists have documented both the tendency of prose­
cutors to exclude blacks from juries, and the pro-prosecution ef­
fect such exclusions may have on a verdict, especially where the 
government’s evidence is insubstantial and the defendant is black. 
See, e.g., Adler, Socioeconomic Factors Influencing Jury Verdicts, 
3 N.Y.U. Rev. L. & Soc. Change 1, 1-10 (1973); Bell, Racism in 
American Courts: Cause for Black Disruption or Despair?, 61 
Calif. L. Rev. 165, 165-203 (1973); Bernard, Interaction Between 
the Race of the Defendant and That of Jurors in Determining Ver­
dicts, 5 L. & Psych. Rev. 103, 107-08 (1979); Broeder, The Negro 
in Court, 1965 Duke L.J. 19-22; Comment, A Case Study of the 
Peremptory Challenge: A Subtle Strike at Equal Protection and 
Due Process, 18 St. Louis U.L.J. 62 (1974); Davis & Lyles, Black 
Jurors, 30 Guild Prac. I l l  (1973); Gerard & Terry, Discrimina­
tion Against Negroes in the Administration of Criminal Law in 
Missouri, 1970 Wash. U.L.Q. 415, 415-37; Ginger, What Can Be 
Done to Minimize Discrimination in Jury Trials?, 20 J. Pub. L. 
427 (1971); Gleason & Harris, Race, Socio-Economic Status, and 
Perceived Similarity as Determinants o f Judgments by Simulated 
Jurors, 3 Soc. Behav. & Personality 175, 175-80 (1975); H. Kalven 
and H. Zeisel, The American Jury 196-98, 210-13 (1966); McGlvnn, 

(Footnote continued on following page)



- 2 0 -

discriminate in jury selection, they hope to benefit from 
invidious discrimination in the ultimate decision of the 
case. In effect, they hope that the truth-seeking function 
of the jury will be corrupted by racial prejudice. Such 
a decision-making process is the very antithesis of an im­
partial trial based on evidence. Indeed, it is the very an­
tithesis of the central principle upon which our system 
of justice is built—that all men and women, rich and poor, 
white and black, stand equal before a color-blind, fair, and 
impartial system of law. Consequently, to protect the in­
tegrity of those jury verdicts which are not yet final, this 
Court must apply Batson to cases pending on direct 
review.8 9

8 continued
Megas & Benson, Sex and Race as Factors Affecting the Attribu­
tion of Insanity in a Murder Trial, 93 J. Psych. 93 (1976); Rhine, 
The Jury: A  Reflection of the Prejudices o f the Community in 
Justice on Trial, 41 (D. Douglas & P. Nobel, eds. 1971); R. Simon, 
The Jury and the Defense o f Insanity 111 (1967); J. Van Dyke, Jury 
Selection Procedures: Our Uncertain Commitment to Represen­
tative Panels 33-35, 154-60 (1977); Ugwuegbu, Racial and Eviden­
tial Factors in Juror Attribution of Legal Responsibility, 15 J. 
Experimental Soc. Psych. 133, 143-44 (1979).
9 Because Batson will enhance the truth-seeking function of the 
criminal trial process, this case is distinguishable from cases, such 
as United States v. Peltier, 422 U.S. 531 (1975), which hold that the 
nature of the exclusionary rule mandates that newly decided ex­
clusionary rule cases be given only prospective application. See also 
Desist, 394 U.S. at 250 (the exclusionary rule does not enhance 
the fairness of the trial). In fact, of course, the exclusionary rule 
frequently excludes evidence which is indeed probative and would 
therefore enhance, rather than detract from, the truth-seeking 
function of the trial. For that reason, retroactive application of 
any new exclusionary rule should ordinarily be denied. Far from 
handicapping the truth-seeking function of the trial, rules such as 
that stated in Batson clearly enhance that function by removing 
considerations which tend to corrupt the trial process and affect 
the integrity of jury verdicts, and, for that reason alone, such rules 
must be applied to pending cases.



—21—

The interpretations of Swain that were adopted by some 
lower courts after Swain, and soundly disapproved by this 
Court in Batson, effectively required that trial courts 
countenance racial discrimination in the selection of juries. 
See Batson, 106 S. Ct. at 1720-21, 1724. Before Batson, 
prosecutors took advantage of erroneous lower court case 
law, and engaged in wholesale challenges of black venire­
men; they did so because they believed that the exclu­
sion of blacks might affect the outcome of cases. See pages 
19-20, note 8, supra. Because defendants ordinarily were 
unable to compile the statistical evidence necessary to es­
tablish long-term, systematic discrimination, trial judges 
often believed that they were powerless to intervene and 
stop discrimination which, they knew full well, was oc­
curring in their courtrooms. These trial judges were there­
fore required, unwilling though they might have been, to 
become accessories to a practice which this Court had con­
sistently condemned for more than 100 years. In this 
sense, this Court’s holding in Batson is “remedial” be­
cause it is directed at discrimination which has been 
shown to exist, a threat to the integrity of the trial which 
must be dismantled root and branch. In these circum­
stances, there can be no justification for failing to apply 
Batson to cases pending on direct review, and to permit 
those trial judges, whose hands were previously thought 
to be tied, to do what the Constitution always has re­
quired them to do. See Batson, 106 S. Ct. at 1724.

In sum, the evidence documenting the wholesale exclu­
sion of black veniremen is overwhelming. See Batson, 106 
S. Ct. at 1726-27 (Marshall, J., concurring). If the exclu­
sion of blacks from petit juries were not thought by prose­
cutors to affect the truth-seeking function of the jury, 
prosecutors would not routinely challenge blacks, and this 
Court’s decision in Batson would have been unnecessary. 
See Batson, 106 S. Ct. at 1724. But this Court’s decision



- 2 2 -

in Batson was necessary, in part because it “may have 
some bearing on the truthfinding function of a criminal 
trial” {Allen v. Hardy, slip op. at 4). It is hardly conceiv­
able that prosecutors, having excluded blacks from juries 
because those prosecutors believe that exclusion affects 
the outcome, may now be heard to contend that the rule 
in Batson should not be applied retroactively because ex­
clusion has no such effect.

B. Cases Such As Batson Must Be Applied In A Consistent­
ly Predictable Way.

The integrity of the judicial process requires this Court 
to apply Batson in cases pending on direct appeal, but 
due regard to this Court’s constitutional function also re­
quires that result. To guide its consideration of this issue, 
the Court should look, as it has in the past, to Justice 
Harlan’s definitive analysis of these questions in Desist 
and Mackey. Under that analysis, overriding concerns of 
fairness and equity require that this Court apply Batson 
retroactively.

Justice Harlan warned that judges may be tempted to 
view retroactivity doctrine as a means for limiting the 
scope of decisions which they may consider to be contro­
versial or even unsound. Mackey, 401 U.S. at 676-77. If 
retroactivity principles are manipulated in this way, the 
result is a plethora of incompatible and malleable rules 
wholly unrelated to principle. Id. The Court then becomes 
a legislature applying its new constitutional rules “as it 
deems wise.” Id. at 677. In addition, there is a significant 
waste of judicial resources because this Court must issue 
two opinions every time it interprets or modifies consti­
tutional doctrine: One decision explaining the doctrine, the 
other determining whether it applies retroactively. See, 
e.g., United States v. Johnson, 457 U.S. at 542; Johnson 
v. New Jersey, 384 U.S. 719, 727 (1966).



- 2 3 -

In this sense, even the “clear break” doctrine is suscep­
tible to manipulation which threatens principled decision­
making. Whether a case presents a “clear break” is often 
a matter of degree subject to argument on both sides. 
Merely by characterizing a new rule as a clear break, 
those who question the wisdom of the new rule can under­
mine its effectiveness, even if, as in Batson, the rule is 
firmly rooted in well-established precedent. The precision, 
predictability, and efficiency inherent in the principle that 
new rules ordinarily should apply to cases pending on 
direct appeal would therefore be subverted by any prin­
ciple that would require extensive debate about what con­
stitutes a clear break. The application of the “clear break” 
principle must therefore be limited to cases where this 
Court has, unlike Batson, explicitly overruled past prece­
dents which have sanctioned state conduct now deemed to 
be unconstitutional. Unless the clear break doctrine is so 
construed, the inevitable result will be the very uncertainty 
and inconsistency predicted by Justice Harlan.10

10 Indeed, as we have previously noted (see page 16, note 7, 
supra), only some lower courts had adopted the interpretation of 
Swain disapproved in Batson. Other courts, recognizing that that 
interpretation was inconsistent with a vast body of Fourteenth 
Amendment precedent, had emphatically rejected it. Moreover, in 
McCray v. New York, 461 U.S. 961 (1983), five Justices specifical­
ly urged the lower courts to reconsider their interpretations of 
Swain. Thus, it should be obvious that Batson is not a “clear 
break” case. However, to the extent that argument can even be 
made on the point, that fact demonstrates the problems inherent 
in not restricting the “clear break” doctrine to its narrowest pos­
sible application, that is, to cases which (unlike Batson) have ex­
plicitly and undeniably overruled past precedents of this Court.



-2 4

C. Applying Batson Prospectively Will Penalize Griffith 
And Other Defendants Whose Cases Are Pending On 
Direct Appeal For The Merely Fortuitous Reason That 
Batson Was The First Case The Court Decided To Re­
view.

By necessity, this Court may announce new constitu­
tional rules only by deciding cases over which the Court 
has jurisdiction. E.g., Marbury v. Madison, 1 U.S. 267, 
1 Cranch 137 (1803); see Mackey, 401 U.S. at 677-79 
(Harlan, J., concurring in part); Desist, 394 U.S. at 258-59 
(Harlan, J., dissenting). To facilitate this system of judicial 
review, the Court clearly has been afforded broad discre­
tion over its docket. 28 U.S.C. §§ 1254, 1257, and 1258 
(1982); see Maryland v. Baltimore Radio Show, Inc., 338 
U.S. 912, 918-19 (1950) (statement of Frankfurter, J., re­
garding denial of petition for writ of certiorari).

Differences in result, however, cannot be justified in any 
rational way if they are based on idiosyncracies arising 
from the certiorari process which are wholly irrelevant 
to the merits of a defendant’s case. Suppose, for exam­
ple, that petitioner had actually filed his petition for a 
writ of certiorari before the petition was filed in Batson, 
but that the Commonwealth had challenged petitioner’s 
right to proceed in forma pauperis, and the Court had, 
quite properly, delayed action on the petition at bar pend­
ing the receipt of further information concerning peti­
tioner’s financial status. In the meantime, the Court 
doubtless would have granted Batson’s petition and then 
decided to hold petitioner’s case pending resolution of the 
issue in Batson. Or suppose that petitioner had been tried 
first, but that the Kentucky Supreme Court had kept peti­
tioner’s case under advisement for a longer period of time, 
because of other difficult questions presented for review 
in the case, so that Batson’s case had reached this Court 
first. To make the granting of relief depend upon such



- 2 5 -

fortuities, in an area so central to the administration of 
justice, simply defies reason.

In addition, many of the cases that did not reach the 
Court before Batson was decided may well (and probably 
do) involve factual circumstances far more susceptible to 
manipulation of racial prejudice than was the case in Bat­
son itself. Similarly, many of those cases may well (and 
probably do) involve more serious penalties, such as capi­
tal punishment, where the Eighth Amendment’s height­
ened demand for impartial fact-finding, untainted by racial 
prejudice or unfairness of any kind, is manifest. Turner 
v. Murray, 106 S. Ct. 1683, 1687-88 (1986); California v. 
Ramos, 463 U.S. 992, 998-99 (1983); Woodson v. North 
Carolina, 428 U.S. 280, 305 (1976). In view of these fac­
tors, one cannot reasonably assert that the vindication of 
a criminal defendant’s right to have a jury selected with­
out racial discrimination should depend upon his winning 
the race to the doors of this Court.

The idiosyncracies of the appellate process cannot be 
permitted to interfere with this Court’s fulfillment of its 
constitutional duty. Justice Harlan put it most eloquently 
when he observed that “[sjimply fishing one case from 
the stream of appellate review, using it as a vehicle for 
pronouncing new constitutional standards, and then per­
mitting a stream of similar cases to flow by unaffected 
by that new rule constitute an indefensible departure 
from” the most fundamental principles of judicial review. 
Mackey, 401 U.S. at 679.

D. Defendants In The Same Situation As Batson Must Be 
Treated In The Same Way.

This Court, like any other, must grant similarly situated 
defendants “the same relief or give a principled reason 
for acting differently.” Desist, 394 U.S. at 258 (Harlan,



- 2 6 -

J., dissenting). The tradition of the common law, and 
adherence to the rule of law, demands no less. Id. 
Regardless of whether Batson was a clear break from 
Swain, defendants whose cases were pending on direct 
review when Batson was decided must be afforded the 
same remedy that Batson received. Batson and its 
antecedents recognize a personal constitutional right in 
each defendant to be free from racial discrimination in 
the prosecution of his individual case. To grant redress 
for the violation of that right in Batson’s case, while deny­
ing it to all others similarly situated, is therefore incon­
sistent with Batson itself.

The fortuities of the judicial process cannot be allowed 
to determine which defendants obtain relief from the same 
fundamental wrong. The central meaning of the Equal 
Protection Clause is “that those who are similarly situated 
be similarly treated.” Tussman and tenBroek, The Equal 
Protection o f the Laws, 37 Calif. L. Rev. 341, 344 (1949). 
If the Court provides a remedy for a fundamental viola­
tion of equal protection, such as that recognized in Bat­
son, this Court must administer that rule in a spirit con­
sistent with its basic purpose. The chronological details 
of petitioner’s appeal have nothing to do with whether 
he suffered the discrimination condemned in Strauder, 
Swain, and Batson, and those details should have nothing 
to do with whether he is entitled to relief. See United 
States v. Johnson, 457 U.S. at 555 n.16.

As Justice Harlan said, “a proper perception of [this 
Court’s] . . . duties as a court of law, charged with apply­
ing the Constitution to resolve every legal dispute within 
[the Court’s] . . . jurisdiction on direct review, mandates 
that . . . [the Court] apply the law as it is at the time, 
not as it once was.” Mackey, 401 U.S. at 681 (Harlan, 
J., concurring in part).



—2 7 -

CONCLUSION

The judgment of the Supreme Court of Kentucky should 
be vacated and the case remanded for consideration in 
light of Batson v. Kentucky.

Respectfully submitted,

Harold R. Tyler, J r.
J ames Robertson 

Co-Chairmen 
Norman Redlich 

Trustee
W illiam L. Robinson 
J udith A. W inston 
LAWYERS’ COMMITTEE FOR 

CIVIL RIGHTS UNDER LAW 
Suite 400
1400 Eye Street, N.W. 
Washington, D.C. 20005 
(202) 371-1212

Barry Sullivan 
Counsel of Record 

Marshall J. Schmitt 
JENNER & BLOCK 
One IBM Plaza 
Suite 4400
Chicago, Illinois 60611 
(312) 222-9350

Attorneys for Amicus Curiae

Dated: August 1, 1986