GRIFFITH v. KENTUCKY

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ORAL ARGUMENT OF J. VINCENT APRILE, II, ESQ. ON BEHALF OF PETITIONER

Chief Justice Rehnquist: We will hear argument first this afternoon in No. 85-5221, Griffith against Kentucky.

Mr. Aprile, we will hear from you first.

Mr. Aprile: Mr. Chief Justice and may it please the Court:

The case of Griffith versus Kentucky presents a single issue, and that is in cases pending on direct appeal should the holding in Batson versus Kentucky be given retroactive effect.

As a result of this Court's holding in Allen versus Hardy, there is no question before this Court that Batson will not be given retroactive effect in cases that were final when Batson was decided.

You have ruled Batson will not apply retroactively to those cases.

So it is in this context that Griffith versus Kentucky and the following case, Brown versus United States, present you the opportunity to take one step further than you did in Shea versus Louisiana and embrace the rule that you had prior to Linkletter versus Walker, and that is that you would return to decision that holds that all constitutional rules that are announced will be applied retroactively to all cases on direct appeal.

You have had 21 years of experimentation since Linkletter versus Walker and, as many of you have expressed in various opinions and past members of the Court have indicated, the difficulty with retroactivity that has been generated by the attempt to draw bright lines, particularly in the area of the question of direct review.

We would submit that the easiest solution and perhaps one that would accommodate factors you have utilized in other contexts would be to go back to the pre-Linkletter versus Walker situation and, even though not constitutionally mandated, embrace the concept that those cases that have raised the same issue that are not final would be entitled to the benefit of the new constitutional principle announced.

Unidentified Justice: Well, Mr. Aprile, does your submission embrace what is referred to as Justice Harlan's view on the subject, where I believe he said that all cases on direct review not final should get the benefit of the new rule, but none on habeas corpus should get the benefit?

Mr. Aprile: Well, Your Honor, it is obvious from the context of the situation we are put in by the ruling in Allen versus Hardy that takes away the question of collateral relief in the Batson case, I am obviously not in a position to strongly advocate, as someone who has a client who's involved in that situation, for the adoption of the second part of Justice Harlan's approach.

But I do feel that you have ideally set the situation and the table here to embrace it in the context of Batson.

I think it's very interesting that if we look at what you decided in Shea versus Louisiana, in the footnote you pointed out that cases such as Brown versus the United States and Griffith versus Kentucky were not even decided on the basis of Shea versus Louisiana.

But those cases that were pending in this Court on writ of certiorari when Edwards versus United States came down were granted automatic remands.

They were given retroactive application.

And in your most recent case, Shea versus Louisiana, you only addressed the question of those that were really on direct review in state and federal courts and not pending before this Court.

It's very difficult to say that there has been a good strong rationale for applying the different doctrines of retroactivity in cases on direct appeal.

If I could perhaps subvert for a second, the two concepts that you've often used in the context of retroactivity, reliance and effect on the administration of criminal justice.

I submit to you that as you decide a case and announce a new constitutional rule and allow the question of retroactivity on direct appeal to swing and sway in the breeze, the lower courts then go on and make their decisions.

Some will opt that the decision will be retroactive, some will opt that it will not be retroactive.

That generates much litigation by people on both sides of this podium, because if we lose we're going to come to you on petition for cert and ask that you hold that the case be retroactively applied.

If it goes the other way, they will come and ask the opposite.

So as far as impact on the administration of criminal justice and reliance by the courts below, it would seem that a rule that went back to pre-Linkletter and said there will be a presumption that when the case is on direct review, it is not final, it will get the benefit of the constitutional ruling.

Unidentified Justice: Well, what do you conceive the pre-Linkletter law, as you refer to it, to be with respect to cases that had become final and were on habeas corpus review or some sort of collateral attack?

Mr. Aprile: Well, I may be wrong in this, but it was my basic understanding that in that regard, in that mode, that they oftentimes were granted complete retroactivity.

I have no quibble with the need in instances in dealing with full and complete retroactivity focusing on final decisions that perhaps it would be good for you to utilize tests such as the reliance and impact.

Unidentified Justice: Well, but you know, if you're talking about the desirability of a rule that everyone will know it's in effect the minute a decision comes down, isn't there also a good claim for a bright line rule in the collateral attack that it does not get retroactivity?

Mr. Aprile: Again, Your Honor, obviously there are arguments that could be made for that purpose.

I think that some of the exceptions that you have carved out on both sides of the scale would have application there.

For example, when a case... when a decision announced by this Court significantly impacts on the truth-finding process, it may very well be that that is the type of exception that you will provide full retroactive relief on collateral situations.

Unidentified Justice: If you're getting into kind of the weighing of factors and so forth, certainly the reliance element militates against you here, it seems to me.

Obviously, there were people who did rely on the validity of the Swain decision at the time cases were tried, even though they hadn't become final.

Mr. Aprile: Well, I think that we can look at that in two ways.

I think that the particular case that you have before you today is different from many of the cases that you have decided retroactivity on.

Number one, the relief that you gave in Batson was not to reverse and grant a new trial, but it was remanded for a simple inquiry, an inquiry that involves, first of all, determining whether or not, usually from official court records, blacks were struck by the prosecutor in a large number; secondly, if that were true, the defendant showing he was a member of a cognizable racial groups; and then putting the prosecutor to the test of stating trial-related reasons why he made those strikes as opposed to racially biased reasons; and the court then deciding whether or not the prosecutor had overcome a prima facie showing of discrimination made, as you pointed out, could be now made under Batson.

What reliance was there in the past?

The reliance not to hold a hearing is all that we had.

As members of this Court pointed out in the Batson decision, certainly no prosecutor should have believed that he had the right to rely on Swain for the proposition that he could challenge people, blacks and other minorities, on the basis of race with no trial-related basis.

The only thing he had a right to rely on was that the courts probably were not going to utilize the evolving equal protection test in other contexts to require that the prosecutor respond to an allegation of racial prejudice in the context of one limited case.

Any prosecutor who had read even Swain would have thought to know that when this challenge was raised against him, the possibility that later he would be called on the carpet for his conduct in many cases and would have kept some sort of trial notebook, some sort of file, that would have allowed him to respond in these situations.

As this Court stated in Solem versus Stumes, unjustified reliance is no reliance at all.

Now, if there is a price to be paid by conducting hearings after the fact on this limited issue, it is certainly a price that we should pay for guaranteeing the right of participation of blacks in our jury system and secondly the right of a defendant not to have excluded from his particular jury people of his same race simply because the prosecution has a racially biased motive for excluding them.

So I think when we look at reliance, it's certainly... if you want to go back to the other standards and tests that this Court has utilized in dealing with retroactivity, this client, this Petitioner, Mr. Griffith, is not afraid to be judged under those standards.

As we pointed out in the brief, we think we succeed.

We do not think that this case is a clear break that mandates retroactivity.

You have said in the context of Allen versus Hardy that it is an explicit and substantial break.

But indeed, in Allen versus Hardy you did not stop there.

This Court did not say this is an explicit... this is not a clearcut break.

You did not use the magic language, so to speak.

I find that not to be a conclusion of law finding by this Court.

But secondly, you went on and went through the reliance and the effect on the administration of justice analysis for collateral review.

I think by the very nature of the steps taken by this Court, it was clear that the majority opinion did not embrace the concept that this was a clear break in the law.

Unidentified Justice: Well, that's only because we use a different test for collateral review.

I mean, we went through those additional steps because those are the additional steps we use for collateral review.

We don't use them for direct review.

Mr. Aprile: Justice Scalia, I think that in all fairness... and it's very difficult for me to anchor in, but I certainly can refer to other cases where in the course of this 21 years this Court has looked at things and said, if it is a clear break in the law, non-retroactivity will be mandated.

There are a number of cases in the last 21 years where this Court--

Unidentified Justice: Going back 21 years, you can find a lot of different approaches, I'm sure.

I'm talking about the approach that we were following at the time of Allen.

We have followed one set of tests for collateral review and a different set for direct review.

Mr. Aprile: --Well, I would beg to differ with you in this regard, that if you look at a number of the retroactivity cases over that period of time there has often been the statement made that this Court sees no distinction in this case between full and complete retroactivity or limited retroactivity to those cases on direct review.

I would hope, and I would like to agree with you, that if the decision in Solem versus Stumes and Shea versus Louisiana create two different standards and embraces Johnson from the Fourth Amendment and says, from now on on direct review this is what we do, if Shea versus Louisiana is the controlling precept, then I have no trouble accepting that and saying, fine.

Then we will put aside that finding in Allen versus Hardy, as you wish to do, and say that you didn't have to reach that question because you used a different test of retroactivity on collateral review.

I'm willing to accept that, because I think if we use Shea versus Louisiana's test we are in much the same situation as Petitioner Shea was in, because again, while there was a change of rules, there was no clearcut break in precedent.

And in that situation, what you did in Shea versus Louisiana was to look at the Harlan approach.

And when you looked at the Harlan approach, what did you say?

You said, if we utilize application of retroactivity of the Edwards decision to cases on direct review, we will provide fairness to each litigant that was before the Court on direct review, because each of them will be judged on the merits of their own case, not on the chance that their case was not the one selected to be the one in which you announced the rule.

It's ironic that I stand before you today asking for equal treatment for Griffith in this case, when his substantive complaint is that he was denied equal protection by the action of the prosecutor in this case.

I think it's ironic that I stand before you today and ask that you give him retroactive relief on direct review because of the chances that were involved.

The same prosecutor that utilized his peremptory strikes in the way that he did in Batson versus Kentucky is the same prosecutor in this case.

It occurred in the same circuit court.

The only difference is the division and some difference in time.

As this Court has frequently pointed out, litigants such as Mr. Griffith usually have no control over the speed at which their case reaches this Court, and it was only chance--

Unidentified Justice: And it was only one month between the convictions.

Mr. Aprile: --That's right, Your Honor.

And it is very, very difficulty to go back and say, for purposes of your equal protection claim, yours cannot be considered because yours was not the one selected at random.

That was Justice Harlan's entire point in looking particularly at direct review.

How can we justify as a system of law built on precedent giving only prospective application, with one exception, and that is to the case which you select for the particular purpose of announcing a rule?

Unidentified Justice: What is the justification for the exception having to do with a clear break in the past?

Mr. Aprile: Your Honor, I really believe that the clear break rule is justified under the test of reliance and impact on the administration of justice when you carry it all the way out through the full and complete retroactivity that embraces not only those cases on direct review, but those cases which would be... that have already become final and would be able to get relief only through collateral action.

Unidentified Justice: Well, confining it to cases on direct review, what is the justification for the exception?

Mr. Aprile: Well, the justification would be very simply that the people that administer whatever the particular rule was, in this case prosecutors and trial judges, would have the right to rely on an existing precedent that so clearly spells out what their conduct should be.

I find it very interesting that both the state of Kentucky and the United States Government in Brown versus United States take the position that there are so many people that would be affected by this on direct, if you granted retroactivity on direct review.

Unidentified Justice: Well, on that justification, then the case that is taken should be made prospective only and not affect that individual?

Mr. Aprile: Your Honor, I certainly, as a person who represents individuals before a court, would hate to see that this Court would embrace as a general rule only prospective application of decisions.

Unidentified Justice: Well, but I'm groping for the justification and I haven't really seen very much yet.

I'm not blaming you for it.

Mr. Aprile: I apologize for that.

Unidentified Justice: No, I'm not blaming you.

You're doing the best you can to justify the rule.

Mr. Aprile: I think that your question does introduce a factor.

Maybe I misunderstood your question.

Unidentified Justice: You wouldn't mind doing away with the exception, I take it?

Mr. Aprile: No.

In fact, I feel that, as was pointed out in the dissent in Shea versus Louisiana, the position you took in Shea versus Louisiana simply doesn't clarify the problem because we still have all the courts below you speculating on what is a clear break in the law.

I think that if you were asking... and perhaps I'm--

Unidentified Justice: You don't mind that in collateral review, though?

You think that's fair game there?

And there are probably, you know, more cases that come up through habeas that are going to raise the same issue than are on direct appeal.

That confusion is acceptable in that context?

Mr. Aprile: --Well, I think that confusion is acceptable for the purpose that other people, Justices on this Court, have spoken to that issue in various contexts, both in dissents and in majority opinions, and have pointed out that there is some reason for embracing a line that is based on finality.

It's true in this case that finality, being that the time for petitioning the case to this Court for certiorari had elapsed, in that situation then we move over and talk about the question of clear break.

Yes, it will still work unequal application of the law in certain situations, and perhaps some of the exceptions that you have carved out in collateral review, such as impact on the truth-finding process, would help to make sure that that type of unequal application would not fall in situations such as where you dealt with in Hankerson versus North Carolina, the retroactivity of the--

Unidentified Justice: You're missing my point.

I think my point is the same as the Chief Justice's earlier.

That is to say, that you're urging us to do is to adopt a bright line rule that will eliminate confusion in the law, but the rule you're proposing is one that will only eliminate confusion in the direct review situation.

And you're not willing to say, adopt a similar view in the collateral review situation.

And the fact is that there are probably more cases that are going to be coming up on collateral review than on direct review.

Mr. Aprile: --I feel at a real loss to urge that position before this Court today.

This Court by its action in Allen versus Hardy took that issue away in the context of Batson.

It's very difficult for someone in my position to become an advocate for a rule that has no impact on his client or the class of client that he would represent.

I am not in a position... certainly I could say, yes, Your Honor, I want you to embrace that rule.

But it would be sort of hypocritical, wouldn't it, under the circumstances?

I am not representing anybody who will be benefited or harmed by that rule.

So what I am saying is, you granted the writ of cert under these circumstances and you decided that Batson would not be retroactive in Allen versus Hardy.

I have no quibble with that, but it puts me in a position that that is now a moot question.

I don't think I am the person to advocate with an interest for a client I don't have in that situation.

Unidentified Justice: You're trying to sell us a new view.

You're trying to sell us a new view.

Mr. Aprile: I certainly am.

Unidentified Justice: But you're not giving us a whole view.

You're just giving us a half of it.

And I'm saying it doesn't make any sense as a half.

Mr. Aprile: Well, I think that it would be--

Unidentified Justice: I don't think there's any hypocrisy about it.

It's just--

Mr. Aprile: --I think that basically the answer to this is simply this, that under Justice Harlan's view, if you move it into the collateral area, he would have a general principle or presumption that those cases... that there would not be retroactive application to cases that were final, but he would leave certain exceptions.

I am not here to say that is a good rule or a bad rule.

It's certainly something you could do.

I wouldn't imagine you would do it in the context of this case.

But I suspect that this case offers you the ideal opportunity to remove one aspect of this, and that is a bright line for direct appeals.

In a following case, you could then deal with those cases where finality is involved, knowing that you had carved out a bright line in this situation.

I think it's very important that I point out to you that in looking at Allen versus Hardy I was concerned about the question of whether the impact of the process that's involved here, the new constitutional rule on the truth-finding process.

I think that my case and Mr. Brown's case, the whole Batson concept, is more akin to the decision on retroactivity in Brown versus Louisiana applying Burch Louisiana, and I think it for this reason.

If we look at what happened in Burch versus Louisiana, this Court said that a six man jury had to be unanimous, and when it was a vote of five to one that that was unconstitutional.

And that you said when you addressed that question in retroactivity language in Brown versus Louisiana was how this impeded and impaired the truth-finding function of a trial.

And although it may not be immediately apparent, I think that what we have in Batson is a very similar situation.

If you realize under the facts of the situation, each of the jurors who were struck by the prosecutor, those jurors who were black, under the rules of procedure in Kentucky had survived every test that could be put to them.

There was only one way that they would not serve on the jury, and that is if random selection eliminated them.

In many ways, they were like the sixth juror in Burch versus Louisiana.

They were going to be on that jury but for one of two things: the prosecutor's improper peremptory challenge or random selection.

So in fact, they were pulled away at the very last minute from being able to participate in that jury, in much the same way the Louisiana rule nullified the one vote by not having a non-unanimous verdict when you had a six-man jury.

Unidentified Justice: --Mr. Aprile, how widespread is this random selection business that you have?

it's not in effect in most states, I think.

Mr. Aprile: Well, Your Honor, I'm not really in a position to say that.

But normally I would say this, that in most instances... and I've only tried cases in the military and in Kentucky, to be quite frank with you... in most cases I would feel that peremptory challenges would only be exercised once you had reached the situation that people had gotten through all challenges for cause.

And whether or not there would be any requirement then of random selection or they would have just come up with the number to try the case, 12, 13, 14, depending on the number of alternates, the point is still the same.

I used Kentucky because that's the facts of the case.

The only way those people were stopped from sitting on the jury if there was no random selection was by the action of the prosecutor.

And he effectively deprived the defendants in those cases--

Unidentified Justice: I know, that's the cleaner way of handling it.

You don't have to explain.

Mr. Aprile: --And so the point that I'm trying to make here is very simply this: You looked in Brown versus Louisiana and said the integrity of the fact-finding process was so affected by what was done there, and that was done by a racially neutral statute or rule.

It didn't know which juror would be come the one vote who didn't get counted, who didn't have to be there for a unanimous verdict.

But here we have, at least on a prima facie showing we will have, that the action that deprived that juror of participating was done by a racially motivated action by a state employee, a prosecutor, when he knew under the statement made by this Court in Swain versus Alabama that it would be improper to do that.

I say on that basis we make a very strong showing that what occurred in Batson versus Kentucky, the rule that you announced there, does have incredible impact on the truth-finding function.

And on that basis alone, we should be entitled to retroactive application of Batson to cases on direct review.

If we were to go to the Stovall criteria, the Linkletter versus Walker criteria, I believe that we can meet that, too.

I believe we can meet that for showing this:

Number one, you have effectively removed a large number of cases that could cause impact on the judicial administrations of the state and federal courts by holding in Allen versus Hardy that this will not, Batson will not have collateral retroactivity.

Now we are only dealing with the cases that are on direct review.

It stands to reason that the relief that you granted in Batson will require some going back, some jogging of old memories and looking at court records.

But we have put not a clear-cut, finite time line on this, but we know that most of the cases that will be on direct review will be those within a reasonable amount of time.

So consequently, it doesn't appear that there will be a large number of cases, nothing like there would have been had you granted full retroactive application of Batson, particularly to those cases on collateral review.

And secondly, with regard to reliance, I think I've addressed that already by discussing, prosecutors and judges really didn't have a right to rely on Swain if it was to say prosecutors had the right to hide behind Swain in makin peremptory challenges based solely on race and not on trial-related conditions.

If there are no questions, I would like to reserve the remainder of my time for rebuttal.

Chief Justice Rehnquist: Thank you, Mr. Aprile.

We'll hear next from you, Mr. Richwalsky.

ORAL ARGUMENT OF PAUL W. RICHWALSKY, JR., ESQ. ON BEHALF OF RESPONDENT

Mr. Richwalsky: Mr. Chief Justice and may it please the Court:

In the 21 years and four months since Linkletter that Mr. Aprile referred to, there have been in our opinion or in our view two bodies or two schools of law that you have handed down with regard to the question, the very narrow question, of the retroactive application to cases on direct appeal.

And we feel under either school of law or either body of thought the rule that you have handed down, the new rule of constitutional criminal procedure of April the 30th of this year in Batson versus Kentucky, requires prospective application only.

In the first instance, Batson was a clear break case.

It was a classic clear break case.

Obviously, on this point Petitioner and Respondent disagree.

The 1982 case of United States versus Johnson set out the standard test for clear break cases, and in effect you said that if there was a clear break case prospectivity is preordained.

Batson meets two of the three criteria: It explicitly overruled a past precedent; that being Swain versus Alabama; and it disapproved a practice which this Court arguably has sanctioned in the past.

Batson, we make this claim that it was a clear break because not only are there some similarities between Swain and Batson if you put them side by side, especially with regard to the dictates of this Court in the area of equal protection, but more importantly where we come with the clear break argument is that you effectively changed the nature of peremptory challenges, especially the use and purpose to which prosecutors or any litigant could avail himself in this particular case to the use of peremptory challenges in a particular case.

This Court specifically stated that, to the extent that Swain is inconsistent, it is overruled.

Thus, we feel the argument can be made that Batson was precisely the type of clear break--

Unidentified Justice: That's in a footnote, isn't it?

Mr. Richwalsky: --Yes, Your Honor.

Unidentified Justice: I suppose that's of no significance, but it's in a footnote.

Mr. Richwalsky: I believe it is in a footnote, Your Honor.

But again, when you look at the language in Swain, Justice White went into great detail about the history and the system of peremptory challenges, that they would not be... that the use of a peremptory challenge to strike a black individual in a particular case is not a denial of equal protection.

Batson, 20 years later, said it was, and that all of a sudden the unfettered, unchallenged right of a prosecutor to use a peremptory challenge, as handed down and as dictated by Swain, completely changed 180 degrees on April the 30th of this year, when now hearings have been indicated, reasons have to be propounded in order to justify such a use of a peremptory challenge.

So we believe that classically this was a clear break case.

Thirdly, as Mr. Aprile referred to, under Allen versus Hardy, two months to the day after Batson, this Court said Batson was an explicit and substantial break with prior precedent.

Now, obviously you did not use the words or the magic words it was a clear break.

But I would submit that it's a very fine line between a clear break and an explicit and substantial break.

Again, the third point being that Batson was a clear break and deserves prospective application only.

As one attempts to study this body of law, an issue or an element that consistently comes up is the question of whether or not it was foreshadowed.

Was Batson, was the demise of Swain foreshadowed?

It's interesting, I think, to point out that not even Batson himself attacked Swain as the basis for overturning his particular conviction or the error that he raised in his particular case.

No case on the basis of federal law claimed that Swain no longer controlled.

In the states... there are two states you asked about the effect, I believe, Justice Blackmunn, that this might have.

There are 48 states similarly situated who rest on your decision on the retroactivity question of Griffith and Batson.

The two states that went their own way, if you will, cited the continued vitality of Swain and the continued application, and grounded their new approach on reasons particular to their own particular state constitution.

The fact that Swain was criticized--

Unidentified Justice: May I ask you about the 48 states?

Aren't there some states, such as California, that had actually made this kind of decision before we decided Batson?

So would they be among the 48?

Mr. Richwalsky: --No, Justice Stevens.

Massachusetts and California are the two that have gone their own way, so they have... and they founded that on reasons of their own constitution and they founded in on fair cross-section and impartiality grounds.

Unidentified Justice: But they weren't really retroactivity decisions.

They just decided--

Mr. Richwalsky: No.

Unidentified Justice: --the merits of the issue before we did.

Mr. Richwalsky: Exactly.

The point being that Swain wasn't foreshadowed, and everybody up until April the 30th of this year, every state and every federal, every trial and every appellate court in this country, recognized Swain to be the law and the tenets of Swain to be the law.

So again, the argument that I'm trying to proffer to the Court is that when Batson came out it was a clear break and a dramatic clear break.

Unidentified Justice: What about New York and the McCray case?

Did that have any impact there?

Mr. Richwalsky: No, Your Honor, I do not believe that it does.

And with all due respect to Justices Brennan and Marshall, who indicated their concern and who perhaps foreordained the demise of Swain, that is not enough, because up until actual precedent is overruled the authorities have every reason to rely upon that.

And I think the dissent in the McCray case--

Unidentified Justice: I actually was referring to the Second Circuit opinion after it was here the first time.

Mr. Richwalsky: --That I'm not familiar with, Your Honor.

Even should a prosecutor have had reason to think that Swain was foreshadowed, there was no standard upon which he could rely in attempting to anticipate what this Court would require concerning the eventual demise of the Swain decision.

We believe for those reasons or for these reasons just articulated that again, that we think it's without question that Batson was a clear break case and is entitled to prospective application only.

But if, for whatever reason, this Court does not feel that Batson was a clear break, then I would submit to you the traditional development of precedent that this Court has handed down under Stovall and we believe under that test as well Batson requires prospective application.

That test can be broken down, obviously, as questions have already been directed, to purpose, reliance, and effect.

And as also some of the questioning has gone this afternoon, those cases which indicate that if it's an impact on truth-finding then retroactivity is called for, but if not then prospectivity is the order of the day.

Unidentified Justice: But your Kentucky courts didn't discuss any of that.

They just said Swain is it.

That's all it said.

Mr. Richwalsky: Exactly, Your Honor, Justice Marshall.

Unidentified Justice: All the rest of that is not in this case.

Mr. Richwalsky: No, but I mean--

Unidentified Justice: All we've got in this case is a prosecutor who was the same prosecutor in the Batson case, Swain is it, and the Supreme Court of Kentucky said, we agree, Swain is it, period.

That's this case.

Mr. Richwalsky: --Exactly, and it proves a point of reliance, that no court wished to go beyond the tenets of this Court in what you said in Swain up until April the 30th.

And the fact that the prosecutor in this particular case was the same prosecutor in the Batson case I think is of no moment, because in theory it could have come from the same prosecutor's office.

We have a lot of one-man prosecutor's offices in Kentucky, and it could have come from that jurisdiction itself.

Unidentified Justice: But it didn't.

Mr. Richwalsky: But it didn't.

But again, that prosecutor, regardless of who the prosecutor was, was still entitled to rely upon what the Court said in Swain, unchallenged, unfettered use of peremptory challenges, for whatever reason, in a particular case.

Unidentified Justice: Do you think that that prosecutor was prejudiced?

Mr. Richwalsky: No, Your Honor.

Unidentified Justice: Did you read the record?

Mr. Richwalsky: Yes, Your Honor.

I hired that prosecutor.

I was the district attorney in Louisville at the time.

Unidentified Justice: I don't ask you to take the blame for it.

I asked you to admit it, to admit the truth.

Mr. Richwalsky: No, I do not believe that he was.

Under the traditional retroactivity principles when we get to purpose and the reason, if it can be anticipated why this Court handed down the Batson decision, I would make the analogy to what this Court has said in the Fourth Amendment type of cases and the development in that area.

You saw a wrong that after 20 years you decide to address specifically in the use of peremptory challenges.

All the earlier cases talk about the governmental action in discrimination with regard to the venire, with regard to jury service, with regard to actual participation on petit juries.

And now finally again, why Batson was such a clean break is you address the right of a litigant, the right of the Government, to use that peremptory challenge.

And in effect what we hear you say is: Trial courts, prosecutors, we're going to change the rules, we're going to change the rules with regard to the use of peremptory challenges, and in the future go out and, if you will, sin no more; go out and follow our dictates in the future, just like you told the police officers in the sixties and in the seventies when a new embodiment of search and seizure law was handed down.

It didn't affect... it wasn't retroactive to everybody else that was waiting in the wings, but you said, in the future go out and make this correction.

We feel that was the purpose of the Swain... or the Batson decision.

The truth-finding, again citing this Court in Allen versus Hardy, in June of this year you said there may be, or that Batson may have some impact on truth-finding.

But you went on to say, as we believe and as we heard you, that this wasn't the sole purpose, and you talked about to ensure that the Government does not discriminate against citizens who are called for jury service and to strengthen public confidence in our administration.

So the rule in Batson we submit serves multiple ends, and only the first of which may have some impact on truth-finding.

Your cases, your decisions, have held that the impairment to truth-finding must be substantial and not merely incidental in order to be considered for retroactive application.

The other tests under the traditional rules of reliance and effect I think that we have attempted to cover, that the reliance was universally viewed and upheld.

It's been great by every court.

And again, the thing to keep in mind, we would submit, is when you address us on this particular point you're not just talking to prosecutors; you're talking to trial and appellate courts, too, who took you at your word in Swain and what you held, and the reluctance that any of those courts had to overturn you until April the 30th.

The effect, we think, would be significant.

It's impossible, very difficult to know how many cases are involved out there.

I agree with Mr. Aprile that the reduction... or your language in Allen versus Hardy with regard to the collateral matters, that effectively removed many from consideration.

But we still feel that the numbers are significant, and the difficulties and the burden on the courts that would be called into play should you hold Batson retroactive we would submit to you calls for prospective relief only.

So again, under either embodiment of law and principle as we interpret your decisions of the past 21 years, under the clear break test or under the traditional test, either application we feel calls for the prospective relief only of Batson versus Kentucky.

I'd be happy to attempt to answer any questions should the Court have any.

Chief Justice Rehnquist: Thank you, Mr. Richwalsky.

Do you have anything more, Mr. Aprile?

You have four minutes.

REBUTTAL ARGUMENT OF J. VINCENT APRILE, II, ESQ., ON BEHALF OF PETITIONER

Mr. Aprile: Thank you, Your Honor.

I would like to begin by addressing the statement that was made by the attorney general, that being that only two states have dealt with this issue.

In pages 34 and 35 of the brief for the Petitioner, we point out a large number of states that have dealt with this particular question under their state constitutions or federal courts which have dealt with it under their supervisory power or, like the Sixth Circuit and the Second Circuit, dealing with it under a Sixth Amendment analysis.

All of those particular analyses would reduce the number of cases that direct... retroactivity on direct review would approach.

For example, the attorney general tells us that only, I believe it was, California and Massachusetts had addressed this under their state constitution.

New Jersey and Florida have both addressed it and, for example, Florida held under their state constitution this type of situation to require retroactive relief to all cases on direct review.

But I won't burden you any longer with that, only to state that it substantially reduces the number of cases that would be affected by a grant of direct review retroactivity, because a lot of these cases have been decided in the state courts on different grounds and accomplished the same purpose.

So they would not... this would not be a problem for many of those states.

It seems to me as the proponent that if there will be a large impact on the administration of justice it is the obligation of the attorney general representing Kentucky to come forward and demonstrate to you this large number of cases.

I believe it was in Shea versus Louisiana you looked at it and said that there has not been any showing by anyone that there would be this severe impact.

I would also point out that the reliance that has been placed on this particular decision should always be construed in the light that a prosecutor knew that at any time some litigant could come forward and attempt to raise the question of the office's or that particular prosecutor's repeated use under Swain versus Alabama of peremptory challenges in case after case.

It would seem to me that the prosecutors' like criminal defense attorneys, had an obligation also to keep aware of the changes in the law with regard to equal protection violations.

This Court in Batson emphasized that the standards of proof continued to change from Swain up until Batson in the context of other equal protection violations.

What the representatives of the state of Kentucky say to you today is: We did not have any obligation to see the changes that were occurring with regard to equal protection violations in any other context; we had the right to rely solely upon what was said in Swain.

And yet, they did not wish to rely on the broad teaching, the actual bright rule of Swain that was never changed, and that is that prosecutors could not use peremptory challenges in a way that would use race as a basis for disqualifying blacks from participating in juries.

So I don't believe that they have a good faith argument with regard to reliance.

I believe we have demonstrated the need for a clear bright line test on direct appeal for retroactive application.

I believe that the experience of this Court up until 1965 demonstrates that that can be accomplished without significant harm to the administration of justice.

And I think that in the right case, were you to find that you needed not to give retroactive application on direct review, it may be the case in which you would give solely prospective application.

And I would suggest that, even if we go to the Shea versus Louisiana test or the Stovall v. Denno test, that we have demonstrated that Mr. Griffith is entitled, because his case was on direct review, to have retroactive application of Batson.

Chief Justice Rehnquist: Thank you, Mr. Aprile.

The case is submitted.

Print this transcript Transcript: 

Argument of Fred Haddad

Chief Justice Rehnquist: We will hear arguments next in No. 85-5731, Willie Davis Brown, AKA Will Brown, Petitioner, versus the United States.

You may begin whenever you are ready, Mr. Haddad.

Mr. Haddad: Thank you, Mr. Chief Justice, and may it please the Court, if I may, the Court has already heard argument somewhat on this issue.

I would like to address the facts momentarily in the case in that I think it may have a bearing on what I would argue in response to what Justice Blackmun asked at the initial opening argument in Griffith.

In this case the defendant, a black man, was charged with a co-defendant, another black man, with violations of the conspiracy narcotics laws, and was put to trial in the United States District Court for the Western District of Oklahoma.

Five black people were called for the jury, three of which were excused for cause by the court, two of whom were excused by the prosecutor peremptorily, and there was an objection made, and the defendants or petitioner sought to... a request of the trial judge for the... and a couple of additional challenges in an effort to seek some black members of the venire that were still available as well as an objection to the prosecutor's employment of his challenges to exclude black people who responded on voir dire in a manner sufficient to indicate that they could be fair in the case.

As it turned out during the second day of jury deliberation counsel were made aware that during a break between the first venire and the second venire the United States Attorney or Assistant United States Attorney, Mr. Richardson, had made a telephone call to the jury clerk asking her the composition of those who would be calling or coming and asking her not to bring any jurors, as he recalled it, or don't get any blacks on the jury, as she recalled it.

A hearing was then had during the... excuse me.

We had a hearing while the jury was deliberating, and at that hearing Mr. Richardson attested to the fact that he took into consideration that the defendants were black and that their lawyer was black, and that their lawyer was a prominent black member of the Oklahoma State Senate, and he intended to strike from the jury panel any person who indicated whether or not they... whether they knew Mr. Porter, who was my co-counsel at the time, and that was... I asked the question, did not that person that you excluded admit that she would be fair, not influenced by Senator Porter and so forth, and the answer was yes.

That brings us, I think, to the question that Justice Blackmun asked regarding the clear break.

I would suggest to the Court that in my review of discrimination cases the only persons who have ever been afforded a presumption of validity on their conduct has been attorneys.

I think the Court offered to prosecutors both of the United States Government and of the state court that they, being lawyers, and being sworn to uphold the Constitution, would not employ their peremptory challenges in a manner that was different that that which was set out in Swain versus Alabama.

That is that any peremptory challenge would be directed to matters related to trial as opposed to race.

And I think that is a distinction in this case that takes it out of the ambit of the rest of the retroactivity cases.

I would note in many of these retroactivity cases the good faith of the persons involved comes to mind, particularly in United States against Peltier or Peltier.

The fact that the law may have not been... may have been overruled and Alameda Sanchez may not have been the proper law, people relied upon this law in good faith.

I think what Batson recognizes is that in Swain versus Alabama the Court recognized, the lawyers, people who are sworn, and I don't mean to be melodramatic, to uphold the Constitution would in fact act in conformance with their oath.

After 20 years or 21 years of the evolution of trials, I think the Court in Batson realized that perhaps this is not the case in certain circumstances.

The Court in Batson just said, if the appearance is there, we are not saying grant a new trial, we are not saying to anyone that you have to indulge in all these acts.

What we are saying is, if the appearance of impropriety is there by articulable reasons offered by the defense counsel which the trial judge as the listener to voir dire can take unto himself, then he can request that the prosecutor offer a neutral basis or a monochromatic basis for the exercise of his challenges.

I think that was a decision that surely ought to have effect to cases pending on direct appeal.

I don't think, it was... granted, it was a break in the rules, it was a clear break more than likely, but I think it was bottomed on a conception that that which should be right would have been done, and I think the facts in the case before the Court in Brown illustrate that at least in times it has not been done.

The arguments in support of retroactivity as in the Harlan approach have been offered to the Court already.

I don't want to repeat them and just unduly talk too much, but they have been set forth, and I think and I would suggest to the Court that the Harlan approach is the approach that ought to be taken as Chief Justice Rehnquist did in Shea, and just draw a bright line and say, cases pending on direct appeal receive the benefit of the case... of the law at the time the case is decided.

Unknown Speaker: The problem with getting the Court to ever adopt the Harlan approach is that we seldom have a case here in which both sides of the thing are involved.

That is, it would take an opinion of the Court, say, a holding in the technical sense that on habeas corpus there is no retroactivity perhaps with minor exceptions; on direct review there is always retroactivity.

But we tend to get our cases, it is either a direct review or a habeas corpus, and so it is hard to get the court to coalesce around a proposition that would apply to both situations.

Mr. Haddad: I understand that, Your Honor.

I would think that, as Justice Harlan said, taking the scope of the great writ, as he called it, it is to determine if a person is lawfully in custody by those factors or those rules in effect at the time conviction became final, with certain limited exceptions.

One would think of matters that go to jurisdiction, double jeopardy or as the Court has applied Gideon versus Wainwright and those cases.

Unknown Speaker: Why would double jeopardy be an exception?

Mr. Haddad: For a writ?

Unknown Speaker: Yes.

Mr. Haddad: Waller versus... Robinson versus Neil held... it wasn't Waller, and I am just trying to give the Court an example.

If a person... I don't think we have that any more after Waller and Ash versus Swenson, but trying to give the Court an idea of what... a response to your question.

Unknown Speaker: But Robinson against Neil was an application of the Stovail against Denno test, not an application of Justice Harlan's test.

Mr. Haddad: Yes, sir.

I agree, but I am just trying to give it as an example of what I am talking about.

When you are talking about--

Unknown Speaker: Well, I think it is a very poor example of what you are talking about, is what I am trying to say.

But you are entitled, obviously, to convince my eight colleagues that you are right.

Mr. Haddad: --It is just that that is the example that I think I could give, where it went to the essence of the truthfinding factor on collateral review or something where the Court has previously held that it was of such a critical nature that it ought to be applied retroactively on collateral review.

Unknown Speaker: Mr. Haddad, may I ask you, do you think a Batson claim and a trial that arises in the future, say someone is tried tomorrow and a Batson claim is made and it is denied on direct review, that that claim could be raised on collateral review?

Mr. Haddad: I would think so.

Yes, sir, I would think it would be a failure to follow the law in existence at the time.

It would be... and I hope, Mr. Chief Justice, this isn't a bad example again, but I would think it would be in the nature of a failure to afford a full and fair hearing under Stone versus Powell and the Fourth Amendment Issue.

Unknown Speaker: No, I am assuming that they had a full and fair hearing in the state system that would satisfy Stone against Powell and that it was appealed but just was denied on the merits, but there was, you know, an arguable basis for the claim.

Under those facts do you think it would be raisable on collateral review?

Mr. Haddad: Yes, sir.

Yes, sir, I do, so that I just say that in conformance and conjunction with... yes, sir?

Unknown Speaker: 0 xxx.

I think you or at least others have cited Stovall.

Do you recall when the Stovall opinion, which was, of course, a collateral case, where retroactivity was involved, we held that the rules should not be made... those were the Wade and Gilbert rules--

Mr. Haddad: Yes, sir.

Unknown Speaker: --should not be made retro.

Mr. Haddad: Yes, sir.

Unknown Speaker: But then we went on to say,

"We also conclude for these purposes no distinction is justified between convictions now final, as in the instant case, and convictions at various stages of trial and direct review. "

"We regard the factors of alliance and burden and the administration of justice as entitled to such overriding significance as to make that distinction unsupportable. "

and then went on to say that it is just too bad for the... that only those whose cases were actually taken had the constitutional question decided in their favor, this on the ground that

"we regard the fact that the parties involved are chance beneficiaries as an insignificant cost for adherence to sound principles of decision-making. "

Do you think that is still law?

Mr. Haddad: Do I still think it is still law?

Unknown Speaker: Do you think what I have read you is still law?

Mr. Haddad: I think the Court has gotten away from that.

I think Justice Harlan, and I hope the Macke decision came afterwards, said that those cases came along because of this Court's many--

Unknown Speaker: 0 xxx.

Mr. Haddad: --I am sorry?

This Court's decisions--

Unknown Speaker: Justice Harlan's view was usually expressed either in dissent or in concurrence.

Mr. Haddad: --I am sorry.

I meant dissenting opinion in Macke or concurring opinion in Macke dissenting and the cases with it noted, I believe, that this Court had taken this almost as a policy approach because of its numerous decisions in the criminal law field, and that the Court was taking certain cases and holding them one way on collateral and one way on direct and then not of benefit to anybody, as in Morrissey versus Brewer, or certain chance beneficiaries, and that is what brought about his decision, I think, or his opinion.

Unknown Speaker: Well, this opinion went on to recognize that inequity arguably results from according the benefit of a new rule to the parties in the case in which it is announced but not to other litigants similarly situated in the trial or appellate process but raise the same issue.

Mr. Haddad: Yes, sir.

Unknown Speaker: Nevertheless what we said there was that there is no retroactivity.

Mr. Haddad: I think Justice Brennan wrote that, too.

Unknown Speaker: Him--

Mr. Haddad: I think Your Honor wrote that, too, as I recall.

Unknown Speaker: --That's right.

Why else do you think he is reading it?

Mr. Haddad: I understand that Justice--

Unknown Speaker: I just wondered.

Is that no longer law?

Mr. Haddad: --I think there has been a break away from that with Johnson and Shea.

Let me say that.

I think there has been a trend away from it with Johnson and Shea.

Unknown Speaker: It would bode ill for your case if the language that Justice Brennan just read to you were controlling in this case in view of our decision last spring in Allen against Hardy.

Mr. Haddad: It certainly would, sir, yes.

I don't deny that.

If I may, if I have any other time left, I would like to reserve it.

Thank you very much.

Unknown Speaker: Thank you, Mr. Haddad.

We will hear next from you, Mr. Bryson.

Argument of William C. Bryson

Mr. Bryson: Thank you.

Mr. Chief Justice, and may it please the Court, I would like to summarize briefly what our position is in this case.

It has been laid out well, I think, by the attorney general from Kentucky, but in essence what it is is simply this, that Batson was a clear break with the past.

That the Johnson case, while holding that ordinarily case new decisions will be given retroactive effect on direct appeal, made an exception for cases that it referred to as clear break cases, and that in Allen against Hardy this Court found that the Stovall against Denno factors cut against full retroactivity for Batson.

We put those three propositions together and we submit that that compels a finding that Batson should not be held retroactive on direct appeal in this case.

Now, Justice Blackmun asked a question, I believe, in the first argument about whether this clear break exception to the Johnson rule should be preserved, whether it has any justification, and that ties in, I think, with the question of what the status of Stovall is with respect to direct appeal cases at this point.

As we read the Court's opinion in Johnson, what the Court was saying was, yes, we are adopting to an extent Justice Harlan's rule that the new decisions would be applied retroactively on direct appeal, but we are not willing to go so far as to overturn settled precedent in this area, particularly with respect to that area of settled precedent in which the Stovall against Denno factors are the most compelling, and that is the definition of the clear break area.

Now, in the clear break area, as this Court recognized in Johnson, that is the very area where the Stovall against Denno factors operate very strongly, particularly the factors of reliance by prosecutors, trial courts, and courts of appeals, and the administration of justice, because in that area, that is the area in which, because decisions are clear breaks from the past, clear breaks from prior precedent, and particularly when they constitute square overrulings of prior precedent, that is the area in which it is the least likely that lower courts and law enforcement officers and prosecutors will have anticipated a change in the law, and as a result that is the area in which you will have the most number of cases which will be affected by the change and in which you will have had reliance, justifiable reliance by people who read the law and attempt to follow it.

So, I think what the Court has done in Johnson is essentially to reach a compromise between Stovall against Denno and Justice Harlan's views as expressed in the number of dissents.

The Court has preserved that area of the Stovall analysis that is the area in which it is the most telling, and has otherwise adopted Justice Harlan's views.

Now, we have argued in the past for a straight application of Stovall against Denno to not only collateral attack but also direct review, but if the Court is not prepared to go back to the Stovall against Denno across the board rationale, then we submit that Johnson--

Unknown Speaker: Well, I gather, Mr. Bryson, you don't think that what I read earlier from Stovall controls this case without more?

Mr. Bryson: --Well, I think in light of Johnson, Your Honor, we would say that it does control this case to the extent that the Court concludes that this is a clear break case.

Now, of course, if the Court concludes that it is not a clear break case, then Stovall under the analysis of Johnson doesn't have any applicability, and the Court would then go to the Harlan rule which would be simply flat-out applicable... retroactivity as applied to direct review.

So the answer is yes, but it is yes because we believe this is a clear break case, and that is a condition precedent for Stovall applying as we read Johnson.

Now, that brings me to the question, is this a clear break case, and there is a lot of argument in the briefs, and there has been argument this morning about whether it is.

We would rely, of course, very heavily on both Johnson, in which a clear break was defined as either a straight overruling or the Court disapproving a well established prior practice, we rely on that; we would also rely on Allen against Hardy, in which the Court specifically said this was an explicit, that was an explicit and substantial break with the past.

Now, I don't, as I think General Richwalsky said before, I don't see any difference between a clear break and an explicit and substantial break.

I cannot imagine that the Court had in mind to draw a line between those two concepts, but in any event between Johnson and Allen against Hardy it is clear to us that this was a sufficiently new rule that it is one that would fall within the Court's characterization of clear break cases.

Now, the petitioner and amicus in this case have provided two proposed answers for the argument that this is a clear break case One, they say, well, yes, it was a break but it was a break with respect to burden of proof question only, not with respect to the underlying standard of conduct, and second, they say, well, it is really no break, or to the extent that it was a break it was a break that was so completely foreshadowed by prior events that no one had the right to rely on it.

Now, as to the first, first, again, going back to Allen against Hardy, the Court in Allen pointed out that the question of whether this was a break with regard to burden of proof or whether this was a break with regard to standards of conduct is of no moment in determining whether it is a clear break case for the simple reason that courts, prosecutors, and appellate courts were relying on the entire rule, not just the standards of conduct that were prescribed in Swain, but also the principles of reviewability in Swain.

That is why in case after case prosecutors declined and trial courts did not require them to make a record as to the reasons for their peremptory strike simply because Swain did not require such a record be kept.

That is the reason that this reliance by the prosecutors in trial courts and appellate courts would be so expensive to overturn, because you would be sending cases back for determination on hearings in case after case for determination of whether the prosecutor had had a particular intention with respect to strikes as to which almost certainly he or she would have no recollection and almost certainly--

Unknown Speaker: Mr. Bryson, could I interrupt you for a minute, because there are two aspects about this case I would like you to comment on.

First, as I remember it, this is a case in which the clerk testified that the prosecutor had requested that as few blacks as possible be put on the venire, and apparently the Court of Appeals accepted that testimony and thought the conduct was reprehensible but it didn't affect the outcome, and so it didn't matter.

And the question I am wondering about is, if you have facts which seem clearer than they are on some records there may have been a deliberate intent to minimize the number of blacks on the jury just for racial reasons alone, is it as clear in this case as it may be in some of the others that the prosecutor was justified in assuming that his or her conduct was entirely proper, and should we not since it is a federal case rather than a state case, do we not have some obligation to consider our supervisory power with respect to the conduct of federal prosecutors in federal trials?

Is it precisely the same issue as in the other case, in other words?

Mr. Bryson: I think the Court could conceivably view this case differently from the typical case, and it is really not just because of the telephone call, as a matter of fact.

There are two features to this case that I think frankly distinguish it from the average case in which... such as Griffith, in which the prosecutor simply says, I don't have to give an explanation, Swain does not require me to give an explanation.

It is not just the telephone call.

It is also that in fact the prosecutor did give an explanation on the record in this case.

Now, there was no finding by the trial court as to whether that explanation was candid or correct, but he said that, yes, I struck two blacks, and the reason I struck them is because the defense lawyer for the co-defendant is a very imposing and impressive lawyer who has in my view a very substantial effect on black jurors.

Now, with respect to the telephone call first, there is no question that the call was completely improper.

It was a deplorable incident, and we are obviously not defending it on the merits.

However, to the extent that anything in mitigation can be said, and I think something can be said, the telephone call, as the prosecutor explained, was intended to find out information about how many blacks were coming, and he did not intend to direct the jury clerk to strike sub silentio the blacks who were on that incoming panel.

Now, she remembered the conversation as giving her the impression that he was asking her to strike them.

His impression of what he said was, we are looking for a jury which does not have many blacks on it, that is to say, I am hoping not to have many blacks on this jury, not, please, Ms. Jury Clerk, take those black jurors off this jury.

Now, in other words, my point is that however unwise his conduct in making the call, It did not reflect an intent to skew the jury in an improper way.

At most it reflects something that he admitted later, which was that in this particular case he was looking for a jury that had as few black members as possible.

That brings me to the second point.

What is the legitimacy of his having struck jurors on the ground that he claimed that he did?

Well, that goes right back to Swain, and what Swain said.

Swain in fact had a passage which it seems to me is very pertinent here, and that is that a place in which Swain quoted the prosecutor as having said that he struck differently depending on the race of the defendant and the race of the victim, and the Court said, well, that is all right because that shows that he was not striking blacks in every case.

And in this case this prosecutor indicated on the record he did not strike blacks in every case.

In fact, he had no objection to having blacks on his jury.

But in this particular case, with this particular lawyer who in his view had such an impressive... had such a way of speaking effectively to black members of the jury, he feared, having black members on the jury, he feared frankly that he was going to be beaten.

Now, in answer to your question, I think that the supervisory power would not be appropriate here principally because the jury clerk, as she testified, was not in any way affected by the telephone call.

It didn't affect her conduct, and the telephone call was, while improper, was not designed to have an effect on her conduct.

The most it does is, it reflects that which he had already indicated he was going to do, which is to strike the black jurors, and the second part of the answer is that under Swain we submit that however wrong the Court may now think that to have been, it was permissible under Swain, as we read Swain.

Unknown Speaker: Just to add on other thought, do you think that the federal government should be judged by precisely the same standards as states when evaluating the significance of reliance on Swain and the prior rule?

Mr. Bryson: --Well, in Williams this Court said precisely that.

The Williams case, one of the series of retroactivity cases, the Court said that there is no basis for drawing a line between the federal government and the state governments.

Now, that is, I think, only a partial answer to your question because I think you are asking more about whether the federal government has a greater burden to anticipate a change in an equal protection subject such as this one.

I think there were a number of offices, frankly, in which Swain was in a sense anticipated... I mean the overruling of Swain was anticipated because I think prosecutors stopped using strikes on blacks for race related reasons but--

Unknown Speaker: I don't understand that.

Why is this?

Federal officers are smarter than state officers?

Mr. Bryson: --No, I am just--

Unknown Speaker: They take a different oath to support the Federal Constitution?

Mr. Bryson: --Not at all.

Not at all.

Unknown Speaker: Well, then, what is the basis for treating the one different from the other?

Mr. Bryson: I don't think--

Unknown Speaker: I mean, if it was apparent to Federal prosecutors, it should have been apparent to state prosecutors.

Mr. Bryson: --I don't think there is any basis for treating them differently.

I am simply saying that the number of cases may be smaller.

There may be a lesser effect on the administration of justice, in part because there may have been... it is conceivable that there may have been more anticipation of the overruling of Swain.

On the other hand, unlike in the state system, there was no Federal court at the time this case was tried, no Federal court at all which had questioned the validity of Swain, continuing validity of Swain.

The two Court of Appeals decisions which came down after this case was tried in this area did question the validity of Swain in a sense, but those were after this case was tried.

There were some state court cases, I think, four of them.

Four states had held that Swain would not be applied under state law.

I see no real distinction between the two except, one could argue, in the extent that there is a smaller number of Federal cases for a variety of reasons.

Now, the second question is one which I have already touched on, which is the degree to which the overruling of Swain was foreshadowed, and therefore any reliance on Swain was unjustified.

First of all, as I have noted, there was very little contrary law prior to Batson.

This Court had in the dissents from denial in the McCray case and two subsequent cases had indicated that Swain might be subject to reconsideration, but other than that there were only the two Court of Appeals cases going off on different grounds, on Sixth Amendment grounds, and a handful of state cases going off principally on state law grounds.

But even if... I would add this case is not like a case such as the Brown case, the Brown against Louisiana, which held the Burch decision retroactive, in which there was no case out there to be overruled, and in which this Court's own decisions, prior decisions had given a clear indication that the Burch decision was on the way.

This case is one in which there would have to be an overruling of Swain and in which there were no prior decisions of this Court that gave any indication that an overruling of Swain was coming.

But beyond that a mere foreshadowing, this Court has held, is not enough to undercut reliance or reader a case not a clear break with the past.

In the Desist case, this Court dealt with the question of whether the Katz overruling of Olmstead should be given retroactive effect, and the Court said no even though there has probably been no case in the... no constitutional case in the history of this Court in which the overruling of the prior decision was as clearly foreshadowed as it was in the case of Olmstead.

Similarly, in the Williams case, the same result.

This Court said that Chimell should not be applied retroactively even though Chimell was clearly foreshadowed by developments in this Court and in the lower courts, and perhaps most pointedly, the case which we think supports us most directly... excuse me... is the Daniels case, which held that Taylor against Louisiana should not be applied retroactively.

In Taylor the Court had held that the exclusion of women from juries was a violation of the Sixth Amendment.

Nonetheless, even though the Court said the judgment may appear a foregone conclusion from the pattern of this Court's cases over the past 30 years, and even though the unmistakable import of this Court's opinions since 1940 suggested the result that the Court was about to reach in Taylor, nonetheless the Court said the Taylor opinion would not be applied retroactively either on direct review or on collateral attack because it was necessary to reverse a prior decision which had approved the practice.

At minimum, at worst this case falls within the pattern of Taylor, and we submit that it in fact is a such less extreme case than Taylor, and therefore calls for the application of the clear break test.

Now, the Court has already dealt with, in Allen against Hardy, the question of the application of the Stovall factors to this case, and I will not go through them at length except to point out very briefly that as far as the most important of the Stovall factors, which is the effect on the truthfinding process, the Court acknowledged in Allen that, yes, the Batson case does have some effect on the truthfinding process, some effect, but that it serves multiple purposes, and it is not like those cases in which the new rule has had a direct and emphatic effect on the truthfinding process.

The language that the Court has used in this area it seems to me is very instructive.

The Court has said, for example, that a case affects truthfinding if there is a clear danger of convicting the innocent, a serious risk that guilt or innocence was not reliably determined.

It is likely that many trial results are factually inaccurate.

That's the kind of language that is simply inapplicable here because in this cases, while the new rule serves important and laudable purposes of reducing discrimination and increasing the confidence of the public in the administration of justice, it does not have a substantial impact on the truthfinding process because what is going on when you say that prosecutors cannot strike blacks on the ground of race is that... not that you are allowing on to a jury someone who is biased, as is the case, for example, in a case such as Turner against Murray, but it it simply saying that you are removing from the jury someone who is unbiased, the black juror, and you are replacing that juror with someone else who is presumably also unbiased.

Now, it may be entirely an offensive practice.

It may be... it has been declared by this Court to be an illegal practice, but what it does not do is to substantially impact on the truthfinding process because of the nature of the replacement that occurs.

Now, as to reliance.

I have already spoken at some length on the reliance factor, and I would only point out that to the extent that the... to the extent that the courts and commentators have construed Swain on the question of whether it constituted a change in burden of proof or whether it constituted a change in the nature of the rule affecting substantive conduct.

Unknown Speaker: You mean Batson?

Mr. Bryson: I am sorry.

What I meant was that--

Unknown Speaker: Whether Batson constituted a change?

Mr. Bryson: --Yes, whether Batson constituted a change in what Swain had said.

That's right.

The courts and commentators talking about Swain have repeatedly held and repeatedly said that the Swain rule permitted the use of race in making peremptory challenges.

The petitioners and the amici say that, well, no, Swain didn't really permit that, but regardless of whether Swain permitted it or not, virtually every commentator and virtually every Court that has analyzed Swain has come to that conclusion, and therefore even if the reliance by the Courts and by the prosecutors and by the appellate courts has been in retrospect incorrect, it was certainly not unreasonable.

Based on that reasonable reliance, the lack of effect on the truthfinding function and the continuing effect of a change in the administration of justice we suggest that the Court should follow the Johnson case and hold that this is a clear break case which should not be given retroactive effect on direct appeal.

Thank you.

Rebuttal of Fred Haddad

Chief Justice Rehnquist: Thank you, Mr. Bryson.

Mr. Haddad, do you have something further?

You have 17 minutes left.

Mr. Haddad: I don't think so, Your Honor.

Chief Justice Rehnquist: The case is submitted.

Unknown Speaker: The Honorable Court is now adjourned until tomorrow at 10:00.