Watson v. United States

• Decision Date: 14 August 1973
• Docket Number: No. 73-1094.,73-1094.
• Citation: 484 F.2d 34
• Parties: Steve S. WATSON, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

484 F.2d 34 (1973)

Steve S. WATSON, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 73-1094.

United States Court of Appeals, Fifth Circuit.

August 14, 1973.

Robert L. McHaney, Atlanta, Ga. (Court-Appointed), for petitioner-appellant.

John W. Stokes, Jr., U. S. Atty., Anthony M. Arnold, Asst. U. S. Atty., Atlanta, Ga., for respondent-appellee.

Before GOLDBERG, CLARK and RONEY, Circuit Judges.

RONEY, Circuit Judge:

We hold that Peters v. Kiff, 407 U.S. 493, 92 S.Ct. 2163, 33 L.Ed.2d 83 (1972), is not to be applied retroactively. The Supreme Court there held that a white person indicated and convicted by juries from which black persons were systematically excluded is entitled to have the conviction set aside without a showing of actual bias.

Steve S. Watson, a white male, was convicted of rape on a Government reservation (18 U.S.C.A. § 457 (1940 ed.) now 18 U.S.C.A. § 2031) in 1947 and sentenced to life imprisonment. In this 28 U.S.C.A. § 2255 motion to vacate his sentence and set aside the judgment of conviction, he alleges that Negroes were systematically excluded from the grand jury which indicted him and the petit jury which convicted him. Denying the motion, the District Court, 350 F.Supp. 57, held that the principle of Peters v. Kiff should not be given retroactive application and that it was therefore unnecessary to determine if, in fact, blacks were systematically excluded from Watson's juries.

Peters v. Kiff is of precedential value only as a case involving standing. The beginning of the line of authority holding that the Constitution prohibits systematic exclusion of blacks from juries substantially predates Watson's 1947 conviction.¹ The right of a black to retroactive relief from the systematic exclusion of persons of his race has long since been firmly fixed. Whitus v. Georgia, 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599 (1967). Peters v. Kiff merely answered the separate question of whether a white petitioner is entitled to relief on the basis of that constitutional violation. There the Court held that "whatever his race, a criminal defendant has standing to challenge the system used to select his grand or petit jury, on the ground that it arbitrarily excludes from service the members of any race, and thereby denies him due process of law." 407 U.S. at 504, 92 S.Ct. at 2169.

Our question is whether Watson, not having previously raised any objection to his juries, may assert the claim by collaterally attacking a conviction that took place prior to the decision of Peters v. Kiff.

The retroactive-prospective dichotomy in constitutional decisions has developed for the obvious purpose of permitting the judicial system to modernize its procedures in keeping with current standards of constitutional thought by judicial decision without undoing everything done in the past. Our Court has previously pondered the baffling problem of applying constitutional decisions retroactively. In Vaccaro v. United States, 461 F.2d 626 (5th Cir. 1972), Chief Judge Brown "recognized the impossibility of reconciling these apparent inconsistencies with any neatly constructed, logically appealing, symmetrically patterned theory or doctrine."

The reason is that retroactivity is essentially a pragmatic, case-by-case, result-oriented process whereby the often competing interests of society, the accused (or by now, the convicted) and the efficient administration of justice are balanced and weighed. There are no hard and fast rules, no shorthand formulae, in the retroactivity area — only factors, equities and considerations.

461 F.2d at 629.

Illustrative of this point are holdings that the systematic exclusion of blacks requires retroactive vindication for black defendants, Whitus v. Georgia, supra, but that women are not entitled to retroactive relief from the unconstitutional systematic exclusion of women from grand and petit jury lists. Pendergraft v. Cook, 446 F.2d 1222 (5th Cir. 1971), cert. denied, 409 U.S. 886, 93 S.Ct. 103, 34 L.Ed.2d 142 (1972). We have previously held that a man is not entitled to retroactive relief because of the exclusion of women. Juelich v. United States, 403 F.2d 523 (5th Cir. 1968), cert. denied, 394 U.S. 1002, 89 S.Ct. 1508, 22 L.Ed.2d 779 (1969).

The Supreme Court in Linkletter v. Walker, 381 U.S. 618, 639, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1964), and Williams v. United States, 401 U.S. 646, 91 S.Ct. 1148, 28 L.Ed.2d 388 (1971), spoke of the criteria which should be reviewed in determining the retroactivity of decisions:

There is a three-fold analysis directed at discovering:

"(a) the purpose to be served by the new standards,

(b) the extent of reliance by law enforcement authorities on the old standards, and

(c) the effect on the administration of justice of a retroactive application of the new standards."

401 U.S. at 652-653, n. 5, 91 S.Ct. at 1152.

Following analysis under these guidelines and accepting the theory that constitutional decisions need not apply retroactively, we conclude that Peters v. Kiff is a prime example of a constitutional case that should receive prospective application only.

(1) The purpose of the Peters v. Kiff decision rests predominantly in its deterrent effect, rather than in its direct bearing upon the actual fairness of the trial or upon Peters' guilt or innocence. The Court spoke in terms of protecting blacks against violations of equal protection and vindicating their right to serve on juries. Peters v. Kiff, supra, 407 U.S. at 499-500, 92 S.Ct. 2163. Justice White's concurring opinion was based solely on the statutory command of 18 U.S.C.A. § 243 and Hill v. Texas, 316 U.S. 400, 62 S.Ct. 1159, 86 L.Ed. 1559 (1942), which make it a criminal offense for jury commissioners to disqualify citizens for jury service on racial grounds.

(2) The judicial system's absolute reliance on the old standard was undisputedly pervasive. All prior grand jury indictments and petit jury convictions were subject to the then current standard for jury selection. This case then is unlike Miranda v. United States, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), where only a portion of the police interrogations resulted in a coerced confession, or Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), where only some of the trials in a given jurisdiction were of indigents without counsel.

(3) The effect of a retroactive application on the administration of justice would be substantial. Exposing to reversal every conviction in a jurisdiction prior to the time when the jury selection system met all constitutional requirements would undoubtedly be tantamount to directing a verdict of not guilty in a large number of cases. It is improbable, however, that in crimes without any racial implications whatsoever, any petitioner in Watson's position could even hypothesize that he would not be in jail today, but for the discriminatory jury selection system. The reliability of the verdict in Watson's case is not seriously questioned. Although "proof of actual harm, or lack of harm, is virtually impossible to adduce", Peters v. Kiff, supra, 407 U.S. at 504, 92 S.Ct. at 2169, such problems of proof in themselves are not sufficient to require retroactive application. See Michigan v. Payne, 412 U.S. 47, 93 S.Ct. 1966, 36 L.Ed.2d 736 (1973) (holding North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), should be applied prospectively only). Limiting Peters v. Kiff to prospective application, however, does not preclude relief in those prior instances of actual jury prejudice because due process claims may always be made in those cases in which evidence of actual prejudice exists. Michigan v. Payne, supra.

(4) The decision in Peters v. Kiff further refines the system of jury selection. The Court made it clear that no dual system can ever again satisfy constitutional requirements and that every defendant has the same right to object to an unconstitutional jury selection system. But this purpose does not mandate the retroactive application of the decision. Thus, Justice White, writing for three Justices who concurred in the judgment as an appropriate implementation of the strong statutory policy of 18 U.S.C.A. § 243, spoke in terms of prospectivity:

This is the better view, and it is time we now recognized it in this case and as the standard

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