Griffith v. Kentucky Brown v. United States, No. 85-5221

• Court: United States Supreme Court
• Writing for the Court: BLACKMUN, J., delivered the opinion of the Court, in which BRENNAN, MARSHALL, POWELL, STEVENS, and SCALIA, JJ., joined. POWELL
• Citation: 479 U.S. 314,93 L.Ed.2d 649,107 S.Ct. 708
• Parties: Randall Lamont GRIFFITH, Petitioner, v. KENTUCKY. Willie Davis BROWN, aka Will Brown, Petitioner, v. UNITED STATES
• Docket Number: No. 85-5221
• Decision Date: 13 January 1987

479 U.S. 314 107 S.Ct. 708 93 L.Ed.2d 649 Randall Lamont GRIFFITH, Petitioner,

v.

KENTUCKY. Willie Davis BROWN, aka Will Brown, Petitioner, v. UNITED STATES.

No. 85-5221. Argued Oct. 14, 1986. Decided Jan. 13, 1987.

Opinion on remand, 817 F.2d 674.

Syllabus

In Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69, the Court ruled that a state criminal defendant could establish a prima facie case of racial discrimination violative of the Fourteenth Amendment, based on the prosecution's use of peremptory challenges to strike members of the defendant's race from the jury venire, and that, once the defendant had made the prima facie showing, the burden shifted to the prosecution to come forward with a neutral explanation for those challenges. These cases concern the question whether that ruling applies to cases pending on direct review or not yet final when Batson was decided. In No. 85-5221, petitioner's robbery conviction in a Kentucky state court was affirmed by the Kentucky Supreme Court, which rejected petitioner's claim that the prosecutor's use of peremptory challenges to strike prospective black jurors deprived petitioner, a black person, of guaranteed equal protection. Similarly, in No. 85-5731, petitioner's conviction in Federal District Court on narcotics charges was affirmed by the Court of Appeals, which rejected petitioner's claim that the prosecutor's use of peremptory challenges to exclude black jurors, combined with his call to the jury clerk, violated the right of petitioner, a black person, to an impartial jury. The petitions for certiorari in both cases were filed in this Court before Batson was decided.

Held: A new rule for the conduct of criminal prosecutions, such as the ruling in Batson, applies retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a "clear break" with the past. Pp. 320-328.

(a) Failure to apply a newly declared constitutional rule to criminal cases pending on direct review violates basic norms of constitutional adjudication. After this Court has announced a new rule in the case selected for review, the integrity of judicial review requires the Court to apply that rule to all similar cases pending on direct review. In addition, selective application of a new rule violates the principle of treating similarly situated defendants the same. Pp. 320-326.

(b) An exception to the general principle that a new rule governing criminal procedure should be retroactive to cases pending on direct re-

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view, based solely on the fact that the new rule is a "clear break" with the past, is inappropriate. The principle that this Court does not disregard current law when it adjudicates a case pending before it on direct review applies regardless of the specific characteristics of the new rule announced by the Court. Further, the use of a "clear break" exception creates the same problem of not treating similarly situated defendants the same. The fact that the new rule may constitute a clear break with the past has no bearing on the "actual inequity that results" when only one of many similarly situated defendants receives the benefit of the new rule. Pp. 326-328.

No. 85-5221, and No. 85-5731, 770 F.2d 912, reversed and remanded.

BLACKMUN, J., delivered the opinion of the Court, in which BRENNAN, MARSHALL, POWELL, STEVENS, and SCALIA, JJ., joined. POWELL, J., filed a concurring opinion, post, p. 328. REHNQUIST, C.J., filed a dissenting opinion, post, p. 329. WHITE, J., filed a dissenting opinion, in which REHNQUIST, C.J., and O'CONNOR, J., joined, post, p. 329.

J. Vincent Aprile, II, Frankfort, Ky., Fred Haddad, Fort Lauderdale, Fla., for petitioner.

Paul W. Richwalsky, Jr., Frankfort, Ky., Charles Fried, Sol. Gen., Washington, D.C., for respondent.

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Justice BLACKMUN delivered the opinion of the Court.

These cases, one state and one federal, concern the retrospective application of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

In Batson, id., at 96-98, 106 S.Ct. at 1723-1724, this Court ruled that a defendant in a state criminal trial could establish a prima facie case of racial discrimination violative of the Fourteenth Amendment, based on the prosecution's use of peremptory challenges to strike members of the defendant's race from the jury venire, and that, once the defendant had made the prima facie showing, the burden shifted to the prosecution to come forward with a neutral explanation for those challenges. In the present cases we consider whether that ruling is applicable to litigation pending on direct state or federal review or not yet final when Batson was decided. We answer that question in the affirmative.

I

A. No. 85-5221. Petitioner Randall Lamont Griffith, a black person, was indicted in 1982 in the Circuit Court of Jefferson County, Ky. (the same court where Batson was tried), on charges of first-degree robbery, theft by unlawful taking,

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and being a persistent felony offender in the second degree. App. 2. On the first day of trial, the prosecution and defense attorneys conducted voir dire examination of the jury venire and exercised their peremptory challenges.¹ The prosecution used four of its five allotted challenges to strike four of the five prospective black jurors. The defense used eight of its allotted nine challenges to strike prospective white jurors. There were two duplicate strikes. The two extra jurors who remained because of the duplicate strikes, one of whom was a black person, then were removed by random draw.² Thus, no black person remained on the jury. Id., at 5, 12-13.

Defense counsel expressed concern that Griffith was to be tried by an all-white jury. He asked the court to request the prosecutor to state his reasons for exercising peremptory challenges against the four prospective black jurors. The request was refused. Id., at 13. Counsel then moved for discharge of the panel, alleging that the prosecutor's use of peremptory challenges to remove all but one of the prospective black jurors constituted a violation of Griffith's Sixth and Fourteenth Amendment rights. Id., at 15. The court denied the motion. The jury returned a verdict of guilty on the charge of first-degree robbery and fixed petitioner's punishment at 10 years' imprisonment.³ The jury then found petitioner guilty of being a persistent felony offender, and, pur-

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suant to Ky.Rev.Stat. § 532.080 (1985), enhanced his sentence to 20 years' imprisonment.

The Supreme Court of Kentucky, with an unpublished memorandum opinion, affirmed the judgment of conviction. App. 17. The court rejected petitioner's claim that the prosecutor's use of peremptory challenges deprived him of guaranteed equal protection. It relied on Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), where this Court ruled that a black defendant did not establish a violation of the Equal Protection Clause solely on proof of the prosecutor's use of peremptory challenges to strike black jurors at the defendant's own trial. Id., at 221-222, 85 S.Ct., at 836. The Court noted, however, that an inference of purposeful discrimination could be raised where a prosecutor had engaged in a pattern of challenging black jurors in a series of cases. See id., at 223-224, 85 S.Ct., at 837-838. The Kentucky court concluded that Swain disposed of petitioner's claim and it "decline[d] to go further than the Swain court." App. 18.

Griffith timely filed here a petition for a writ of certiorari. While his petition was pending, this Court decided Batson v. Kentucky, supra, where it rejected a portion of the reasoning of Swain v. Alabama on which the Kentucky court had relied. 476 U.S., at 89-96, 106 S.Ct., at 1719-1722. Two months later, in Allen v. Hardy, 478 U.S. 255, 106 S.Ct. 2878, 92 L.Ed.2d 199 (1986) (per curiam ), we held that the ruling in Batson was not to be applied retroactively to a case on federal habeas review. We granted certiorari in Griffith's case, 476 U.S. 1157, 106 S.Ct. 2275, 90 L.Ed.2d 718 (1986), limited to the question whether the ruling in Batson applies retroactively to a state conviction pending on direct review at the time of the Batson decision.

B. No. 85-5731. In 1984, petitioner Willie Davis Brown, a black person, was convicted by a jury in the United States District Court for the Western District of Oklahoma on narcotics charges. During jury selection, two venire panels were assembled. 6 Record 2-10.⁴ There were six prospec-

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tive black jurors in the total venire. Four were excused for cause by the court and the other two were excused by the prosecutor's use of peremptory challenges. Id., at 20.⁵ Defense counsel objected to the prosecutor's use of peremptory challenges to strike the black persons from the jury, claiming that petitioner was thereby denied a jury representative of the community. Id., at 20-21. No action was taken in response to that objection.

As prospective jurors were being assembled for the second venire panel, the prosecutor called the jury clerk to inquire about the racial composition of the additional venire. At a hearing held later while the jury was deliberating, there was evidence that the prosecutor said to the clerk: "We would like to have as few black jurors as possible." App. 51. The clerk testified, however, that she remembered the prosecutor's comment to be: "Don't get any blacks on this jury." Id., at 38-39. The clerk went on to say that she did not alter the jury selection in any way in response to the prosecutor's comment. Id., at 44-45. The District Court concluded that the prosecutor's contact with the jury clerk "would have to be looked at and dealt with by someone," id., at 44, inasmuch as it fell "into the category of possible prosecutorial misconduct," id., at 46, but that it did not affect the integrity of the selection of the jury. Id., at...