LOCATION: Circuit Court of Jefferson County
DOCKET NO.: 85-5221
DECIDED BY: Rehnquist Court (1986-1987)
LOWER COURT: Kentucky Supreme Court
CITATION: 479 US 314 (1987)
ARGUED: Oct 14, 1986
DECIDED: Jan 13, 1987
Fred Haddad - Argued the cause for the petitioner in Brown v. United States
J. Vincent Aprile, II, - Argued the cause for the petitioner in Griffith v. Kentucky
Paul W. Richwalsky, Jr. - Argued the cause for the respondent in Griffith v. Kentucky
William C. Bryson - Argued the cause for the United States
Facts of the case
This case concerned the retrospective application of judge-made rules. Specifically, the Court had to decide whether a prosecutor's use of peremptory challenges to exclude black jurors, combined with his call to the jury clerk, violated the black petitioner's right to an impartial jury. The Court was called upon to decide whether the previous decision in Batson v. Kentucky was applicable to pending litigation but not final when Batson was decided. This case was decided together with Brown v. United States.
Could retroactive Supreme Court decisions be applied selectively to cases pending direct review or not yet final?
Media for Griffith v. Kentucky
Audio Transcription for Oral Argument - October 14, 1986 in Griffith v. Kentucky
William H. 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.
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.
William H. Rehnquist:
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.
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.