William H. Rehnquist: We'll hear argument first this morning in No. 87-6796, James A. Ford v. Georgia. Mr. Ogletree.
Charles J. Ogletree, Jr.: Mr. Chief Justice, and may it please the Court: James A. Ford is here after the Georgia Supreme Court, in light of this Supreme Court's ruling and remand, failed, in our opinion, to apply an adequate and independent state ground to justify the denial of his reef... relief, under Batson v. Kentucky. In this case Mr. Ford, a black defendant, was tried in Coweta County, Georgia, on a capital murder case. At the time of this trial, Mr. Ford's lawyer filed a motion specifically asking the court pretrial to restrict the prosecutor from using its peremptory challenges in a racially discriminatory manner that would exclude members of the black race from the jury. In fact, in the argument of that motion pretrial, Mr. Ford's lawyer specifically asked the court to require the district attorney if he does use his peremptory challenges to exclude potential black jurors, to justify on the record by his reasons for doing so. And he went on to say the failure to do so would conclude, lead to the conclusion that it was only done because those jurors were in fact black. At the time this motion was made the court and the prosecutor was clear that Mr. Ford was asking for relief, not only in terms of what Swain v. Alabama held, but beyond that. He was asking for relief in his specific case. In fact, he also had complied completely with the uniform appellate procedure in Georgia. That procedure at the time required counsel to pretrial file motions on all issues so that the court could rule on them in a timely and reasonable fashion. Moreover, that procedure did not say anything about specifically how peremptory challenges should be handled, because in 1984, when this case was tried, there were not procedures in Georgia specifically telling counsel about the time and manner in which these arguments could be made.
Anthony M. Kennedy: Can there be any quibble, counsel, over whether or not it's clear that a Fourteenth Amendment Swain claim was raised, as opposed to a Sixth Amendment fair cross-section of the community? Is the record clear on that point?
Charles J. Ogletree, Jr.: Justice Kennedy, the record is unmistakably clear on that point. Counsel not only argued it in his pretrial motion, he argued it at the time of the motion. The prosecutor and court assumed it as that. In his brief in direct appeal to the Georgia Supreme Court he specifically raises the Fourteenth Amendment and Sixth Amendment claims. He raised the Fourteenth Amendment explicitly in his motion--
Anthony M. Kennedy: What, what about at the trial?
Charles J. Ogletree, Jr.: --It was pretrial, we submit, that on the... in the pretrial motion it was clear that he was raising a Fourteenth Amendment claim, as well as a Sixth Amendment claim.
Anthony M. Kennedy: Because he mentioned the Swain case?
Charles J. Ogletree, Jr.: Because he mentioned the Swain case, because what he was asking for in this particular case was to restrict the prosecutor's ability to strike black jurors without giving any reasons, and that he should be required to give reasons. And we submit that on the language and his motion, and the court's interpretation of that, that he made a Fourteenth Amendment claim.
Sandra Day O'Connor: Mr. Ogletree, is it your position that all Swain claims are necessarily Batson claims as well? Or do you rely on some particular facts specific to the pretrial motion here?
Charles J. Ogletree, Jr.: Well, that has been a central issue in this case, Justice O'Connor.
Sandra Day O'Connor: I just wonder what your position was on that.
Charles J. Ogletree, Jr.: The position is that Swain claim... we submit that Swain claims and Batson claims are similar in that Batson, in our interpretation of what this Court did, was to relieve the enormous evidentiary burden that Swain established, and to say if you raise a valid, legitimate--
Sandra Day O'Connor: Well, so your answer to me is you say that Swain... all Swain claims necessarily include a Batson claim?
Charles J. Ogletree, Jr.: --Yes.
Sandra Day O'Connor: In effect. Okay.
Charles J. Ogletree, Jr.: We would submit on this record that it's even more than that. Even though... [inaudible] a Swain claim had been properly preserved, counsel in this case went beyond that, and in the specific case went on to ask the court to require the prosecutor to give reasons for his peremptory challenges. In fact, the prosecutor said his reasons could be based on blue eyes, that there was no reason. And in fact what counsel had at a pretrial hearing was in effect a clear ruling by the judge that there was no basis for him to challenge the way the prosecutor would ultimately use the peremptory challenges.
William H. Rehnquist: Mr. Ogletree, will you take a look at page 4 of the joint appendix, which has the fourth paragraph, I believe, of the motion that you have been referring to?
Charles J. Ogletree, Jr.: Yes.
William H. Rehnquist: And it... there it says the exclusion of members of the black race in the jury when a black accused is being tried will receive ex... or... et cetera. And then he cites McCray against New York, which is a cert. denied, I think, in our Court--
Charles J. Ogletree, Jr.: That's correct.
William H. Rehnquist: --and Taylor v. Louisiana. Now, neither of those are in their... by their terms Fourteenth Amendment cases.
Charles J. Ogletree, Jr.: That is correct, Chief... Mr. Chief Justice. And in fact, if I understand your question, as the case was actually presented for argument in the pretrial motion, counsel renewed his motion, and I think more explicitly, in his language to the court at the pretrial motion said the prosecutor should be required to give reasons for these action strikes. And we submit was arguing not simply on the basis of Taylor and McCray at that time--
William H. Rehnquist: Where... where did, where did the... where did the petitioner's lawyer in terms use the words Fourteenth Amendment or Equal Protection Clause?
Charles J. Ogletree, Jr.: --The counsel did not use those terms explicitly. What he argued for in the particular case was, and these particular facts, the prosecutor having decided to strike all black, potential black jurors, that he should be required to justify on the record those strikes in his case, in this particular case.
William H. Rehnquist: And what, what law did he rely on? What provision of the Constitution?
Charles J. Ogletree, Jr.: All he relied on in the pretrial argument was what was existent then, both Swain--
William H. Rehnquist: Did he say Swain?
Charles J. Ogletree, Jr.: --He did not, but in fact the prosecutor did. The prosecutor said what counsel is asking for is something under Swain. He hasn't met Swain's burden. In the pretrial motion the prosecutor expressly says Swain is what he is relying on.
William H. Rehnquist: He took it as a Swain... the prosecutor took it as a Swain claim.
Charles J. Ogletree, Jr.: Not only the prosecutor, but the court did as well. The court went on to state his view of how Georgia law had developed, and that prosecutors had given various reasons. And they didn't have to state a reason. In fact the court had in effect issue a declaratory statement that in fact the prosecutor has to give no reason in this case. It is also significant that what the trial court did in denying counsel's motion was not to say that he has taken under advisement, or not to say that as a preliminary ruling, but made a firm and flat ruling saying there is nothing that Mr. Ford could do after I deny this pretrial motion to further establish a Swain or Batson claim. In fact, it is significant that in 1984, when this was raised, counsel in effect was really arguing the precursor to Batson by asking for application of Batson in his case, and asking the prosecutor to give specific reasons.
Harry A. Blackmun: Well, certainly the lower courts all took the issue up, didn't they?
Charles J. Ogletree, Jr.: That is correct, Your Honor. In the first supreme court opinion in Georgia, the lower court said that he had not established a Swain claim. It said that the fact that he was able to show that 9 out of 10 black jurors had been struck was not enough to meet Swain. The court cited Moore v. State there. The case that underlies Moore v. State is Blackwell v. State, a Fourteenth Amendment case by the State of Georgia, specifically on the Swain claim and upholding the Fourteenth Amendment grounds.
Harry A. Blackmun: I hope you can get to the merits.
Charles J. Ogletree, Jr.: Pardon me?
Harry A. Blackmun: I hope you can get to the merits.
Charles J. Ogletree, Jr.: In the--
John Paul Stevens: Mr. Ogletree, before you do get to the merits, what... what... what reliance upon Swain by the prosecution are you referring to? Where is that in the--
Charles J. Ogletree, Jr.: --In the joint--
Antonin Scalia: --Are you referring to page 11 of the joint appendix? I... it is really--
Charles J. Ogletree, Jr.: --That is correct, Justice Scalia.
Antonin Scalia: --sort of tangential. The prosecutor relies on Swain to point out to the court that the peremptory challenge system goes back to the common law and that it would be an unreasonable burden. I don't... I don't take that one sentence as being an acknowledgement by his, on his part that the motion was based on Swain.
Charles J. Ogletree, Jr.: Well, Your Honor, I think it's clear that both the nature of the motion, the way the court understood it, the way the Georgia Supreme Court understood it, the way the prosecutor responded here--
Antonin Scalia: What about the trial court? Why do you say the trial court understood it as a... as a Fourteenth Amendment motion?
Charles J. Ogletree, Jr.: --The... what the trial court did in effect was to say that in light of what you have argued I am taking into consideration among other things that prosecutor should not be required to show that there should be restrictions on the racial use of peremptory challenges. The trial court makes that explicit in its rulings.
Antonin Scalia: On page 17 of the joint appendix, the defense counsel... seems to me to refer to the Sixth Amendment. The defendant's right to an impartial jury trial is guaranteed by the Sixth Amendment. And there is no mention of the Fourteenth there. That's on page 17.
Charles J. Ogletree, Jr.: That's correct, Your Honor. But if the Court will look at page 11, when the prosecutor in effect cites Swain, the prosecutor goes on and says, in explaining Swain, and explained this case. If this is the particular reason he wants to do that today, the defense counsel, I would oppose the motion. I must object to the statement that was made, too. The prosecutor sees it as a Swain claim, and in fact is telling the court I understand it as a Swain claim, and under Swain I have the right to do whatever I want to do to use my peremptory challenges. So I don't think it's a question that the prosecutor understood it, the defense counsel understood it, and the trial court understood it at the time that it was raised.
John Paul Stevens: Mr. Ogletree, at any time in these proceedings, has either any Georgia judge or a Georgia prosecutor taken the position that you waived the claim because you only argued the Sixth Amendment?
Charles J. Ogletree, Jr.: No, Your Honor.
John Paul Stevens: No, but this is just brand new up here.
Charles J. Ogletree, Jr.: That is exactly right, Your Honor. At the time that this case was litigated before the Georgia Supreme Court, at the time in the new trial motion, that issue was never raised. In fact, the government concedes in its brief on the direct appeal to the Georgia Supreme Court that Swain was the issue, the Fourteenth issue... Fourteenth Amendment issue had been raised and was fairly presented. It is only after this Court's remand, and without hearing from the parties, that the Georgia Supreme Court for the first time says that counsel has failed to make a record of this to survive a Batson claim.
John Paul Stevens: But even, even then they didn't rely on the fact that it was a confusion between the Sixth and Fourteenth Amendment.
Charles J. Ogletree, Jr.: That's exactly right.
John Paul Stevens: It was a procedural failure to make a motion at the time they decided that it should have been made.
Charles J. Ogletree, Jr.: That... that's precisely right. I think it's significant to note as well not only do we submit that counsel made an adequate claim, but if you look at what the Georgia Supreme Court did on remand, I think it's particularly telling. While the Georgia Supreme Court claims that there was an adequate independent State ground and the Government argues that today, it really is an unavailing argument. What the Georgia Supreme Court says, particularly in Sparks v. United States... Sparks v. State, is three significant points that I hope this Court would focus upon. In Spark... first of all, the Georgia Supreme Court is clear in saying at the time Sparks was decided in 1987, that there had been no, and I repeat no, judicial guidelines regarding the time and manner in which a claim is to be presented and preserved under Batson. Sparks is significant for another reason. In Sparks the court makes clear and says it is perspective. The court in Sparks says hereafter any claim under Batson should be raised prior to the time the jurors selected to try the case are sworn. That is 1987. And finally, and most significantly, the Georgia Supreme Court went on to say that Sparks, having failed to comply... Sparks is in a worse position, we submit, than Ford. In Sparks there was no pretrial motion. The first objection by Sparks did not come until after jury selection, after the jury was sworn, and after evidence was taken. And yet the Georgia Supreme Court decides that Sparks would receive the benefit of this new rule. And Mr. Ford, whose case was tried 30 months before Sparks was decided, whose appeals were perfected 19 months before Sparks was decided, the Supreme Court of Georgia says, has no availing argument. The lack of an adequate and independent state ground, we submit, is another and clear basis for this Court to disagree with the Georgia Supreme Court's ruling. This Court has consistently said that these State procedures must be firmly established and regularly followed. In Sparks it is clear it's the first time that any procedures were established, and it's clear it's the first time that any procedures were followed, and they were not in existence at the time Mr. Ford's case was litigated. Moreover, in Staub and the Court's most recent pronouncement in Osborne and other cases, this course... this Court has made clear that defense counsel should not be forced to engage in an arid ritual, a meaningless forum, and try to preserve these claims when in fact in this case Mr. Ford, given the law that existed, given the uniform appellate procedure in Georgia, and given his understanding of what he had to do, made a claim. He also had a firm ruling from the trial court in terms of what he could do. He also had a in-trial colloquy where in that colloquy the court goes on to say, in fact, that 9 out of 10 black jurors had been struck. They weren't all struck, but regardless of that, the trial court said it doesn't matter now. I have ruled, I have denied Mr. Ford's relief. There is nothing he could have done to preserve his claim. In fact, as the dissenting opinion says in Ford v. State the second time around, the dissent, I think, is significant in noting that Mr. Ford, and the Government seems to argue, could not have won this case. He could not have preserved Batson even if he had objected during that colloquy. The Government seems to argue that he was given many opportunities. In a case called Riley v. State, the Georgia Supreme Court made it clear that once trial has commenced and the jury has been sworn, that it would be inappropriate for counsel to then rely on a Batson claim to avail him of an opportunity to challenge the prosecutor's use of peremptory challenges in a racially discriminatory way. We submit that on the basis of all of these facts, that the Government has not been able to sustain its burden. Moreover, no one has been treated like Ford in Georgia. The Government refers to various cases decided by the Georgia Supreme Court after Batson and before Mr. Ford's case was decided. In all of those cases they are distinguishable, as we submit, and more importantly, all of those cases follow Mr. Ford's actual conviction. The closest case that the Government cites is Child v. State, decided by the Georgia Supreme Court, but Mr. Childs raised the issue for the first time on appeal. He didn't raise it in a pretrial motion. He didn't raise it after the jury had been selected. And moreover, the reference to Sparks, we submit, is unavailing. Additionally, we would submit that this Court in Griffith made clear and, for whatever reasons, decided that when these cases are remanded, if it's on direct review, that those parties who establish Batson's claims should have the opportunity for redress in the lower courts. And we submit that Griffith certainly supports that proposition, and that this Court should consider exactly what the Georgia Supreme Court did in denying relief for Mr. Ford in this case before the Georgia Supreme Court. Finally, what we ask the Court to do as you think about this case, Mr. Ford's case is unique for a number of respects. The first is that Mr. Ford, unlike any other case that we have been able to find, filed a motion pretrial. It's clear that the Georgia Supreme Court and the Georgia trial courts at that time could have outlined procedures saying there are various reasons by counsel should file these motions pretrial, as opposed to during trial. One obvious reason would be if you file it pretrial and you give notice to the prosecutor, you won't be sandbagging him. And it's clear in this case there is absolutely no argument to justify that the prosecutor, the court, or anyone was sandbagged. If there is any sandbagging, the sandbagging occurs when the Government and the court... the Georgia Supreme Court for the first time announces a rule and applies it to Mr. Ford, when in fact he had no opportunity to remedy it. The second point, as equally significant, is that the Georgia Supreme Court, if they had thought about procedures, could very well have said don't raise these issues pretrial, but raise them after the jury has been selected, because we don't want to inject race into the case until it's significant. That might have been a procedure, whatever the Georgia Supreme Court might have done, or whatever rules might have been existence. That is fine. There were no clear rules in existence. To the extent that they were, counsel complied with them. The Georgia Supreme Court in ruling ignored its own precedent and created a whole new ruling for counsel. And we would submit that in light of these new guidelines being applied to Mr. Ford in these circumstances, that the Court should rule in Mr. Ford's favor and remand this case to the Georgia Supreme Court, instructing that court to ask the trial court to have a hearing consistent with the requirements of Batson v. Kentucky.
Anthony M. Kennedy: Mr.-- --Well, counsel, if there is a State procedural ground that's not an adequate bar, doesn't that mean that we simply hear the claim here, rather than remand it? Do you have any authority for us to say that we... tell the Georgia court that its State procedural rule is inadequate and therefore that it must consider the claim?
Charles J. Ogletree, Jr.: No, I... I would just simply ask the court to, in light of this record, to remand the case. And then the Georgia Supreme Court could actually apply Batson the way this Court intended it to be applied. But not to--
Anthony M. Kennedy: But do you... do you have any authority for us to require the Georgia court to hear a Federal substantive claim if it has a procedural bar rule of its own? I had thought our cases taught that that simply doesn't prevent us from reaching the issue.
Charles J. Ogletree, Jr.: --That is right. Right.
Anthony M. Kennedy: Rather than requiring Georgia to--
Charles J. Ogletree, Jr.: For the purpose of requiring Georgia to reach it. Yes, sir.
Anthony M. Kennedy: --So this would be... so this would be an extension of our precedents?
Charles J. Ogletree, Jr.: I am not sure it would be an extension under these circumstances, Justice Kennedy. I would submit that on this record what you would actually do, as we've argued before, is to simply, in light of the failure of the Georgia Supreme Court to really follow your remand, to create for the first time a claim that has an adequate and independent State ground, to say that there is no... all you have to decide in this case is that there really was no adequate and independent State ground in existence.
Byron R. White: And there, that there must be a Batson hearing.
Charles J. Ogletree, Jr.: Pardon me?
Byron R. White: And that there must be a Batson hearing.
Charles J. Ogletree, Jr.: That's exactly right.
Byron R. White: Which we certainly wouldn't undertake.
Charles J. Ogletree, Jr.: Right.
Anthony M. Kennedy: Well, do we have enough in this record to say that there was a Batson violation in not asking the prosecutor to state the grounds?
Charles J. Ogletree, Jr.: I, I think... I don't think you have to reach that. I think you have enough in this record. I think what you do have is the fact that counsel had made an objection to the prosecutor's specific use, that in fact the prosecutor on the record, without dispute, used 9 out of 10 peremptory challenges to strike black jurors.
Anthony M. Kennedy: Well, why isn't that sufficient for us to do that right here? Just like in an erroneous submission of evidence. We just say the evidence was admissible or inadmissible. We just say the prosecutor had to state his reasons.
Charles J. Ogletree, Jr.: I guess the question would be whether or not the Court is asking, in light of what Batson now requires, whether you can go and decide the entire issue.
Byron R. White: The prosecutor should have a chance to--
Charles J. Ogletree, Jr.: To respond and rebut.
Byron R. White: --to explain what his strikes were all about.
Charles J. Ogletree, Jr.: In fact, in this case the reason that I think the record is so clear, that the record is adequately preserved, the prosecutor at the time of the colloquy during trial was prepared to give reasons, and present to the court... may I give reasons, do I need to give reasons for my strikes. So it goes beyond that to say that there was no sandbagging, there was no effort to deny the prosecutor of making that claim. And in fact we submit that, on this entire record, that this case could be remanded and the appropriate Batson--
John Paul Stevens: Mr. Ogletree, are you implicitly arguing, this is kind of a follow-up on Justice Kennedy's question, that when the record merely shows that 9 out of 10 eligible blacks were struck from the jury, that is sufficient to raise a Batson issue which requires the explanation?
Charles J. Ogletree, Jr.: --I think it certainly is sufficient to at least raise the issue, and certainly in circumstances like this, Justice Stevens, where it is clear that counsel, based on the court's earlier ruling, was not allowed to object to it and make whatever arguments and make the prosecutor explain. I think it's significant that exactly what Mr. Ford's counsel anticipated happen, happened.
John Paul Stevens: But what I'm suggesting is, supposing you made the same motion and all the rest, but the record also showed that there were 10 blacks on the panel, and they all got on the petit jury. We wouldn't send it back then, I don't think.
Charles J. Ogletree, Jr.: That's true. That's true, Justice Kennedy.
John Paul Stevens: So I think inevitably we have to be considering whether the fact that the record shows that 9 out of 10 eligible jurors were stricken and they are all of the same race, that that at least raises enough for further inquiry.
Charles J. Ogletree, Jr.: Right. And I... it seems to me that the Georgia Supreme Court on both instances does not deny that that was enough for an inquiry, but said in fact it was the way in which the claim was made, and it wasn't preserved again after the pretrial motion.
John Paul Stevens: Well, should we say here that there was enough for an inquiry, and then remand it for such further proceedings as may be consistent with that finding?
Charles J. Ogletree, Jr.: That certainly is what I would like to see happen, if this Court would entertain that, particularly in light of this record. I can see the Court not having to go that far, to remand it, but I certainly would not oppose such a--
Antonin Scalia: Mr. Ogletree, here's a problem, and I think this is sort of related to Justice Kennedy's question as to whether we should do it here or send it back. Suppose Georgia wants to adopt a new procedural rule, which you say they have done here, and our case law says they can't pluck a new procedural rule out of the air, impose it on your client, and thereby prevent Federal review. But I don't know that our cases say that they can't pluck a new procedural rule out of the air. That's the way the courts make law. They pick some first case and say well, we have never had this rule before, but you know, this is our procedural rule, and you haven't followed it.
Charles J. Ogletree, Jr.: --I think--
Antonin Scalia: Now, I can understand our saying that's fine for Georgia, but you can't preclude Federal review on the basis of that new rule. But do you want us to say to Georgia you cannot impose that new rule?
Charles J. Ogletree, Jr.: --I think this Court... I think the Georgia Supreme Court and the rules it outlined in Sparks are totally appropriate, and it clearly was a clear rule, a new rule. The question was applying it to Mr. Ford. It's not the rule. I have no quarrel with the rule. The rule gives adequate notice, the procedures are crystal clear, and any litigant after Sparks is clearly on notice. But Mr. Ford is in a very different posture.
Antonin Scalia: But Sparks was prospective, so you are saying all the rules that Georgia makes have to be prospective.
Charles J. Ogletree, Jr.: I think that... no, no. I'm saying the Georgia Supreme Court explicitly said that Sparks would be prospective. I'm not saying that they should all be prospective, but I'm saying the Georgia Supreme Court, under its own State law, decided that this rule should be applied prospectively. And for a good reason. I think they had no other procedures in the past. I think they were saying in light of what we have, in light of what we've done, we have to treat this differently, we have to treat it prospectively. And I think that's the fair thing to do. Georgia was attempting to do, I think, in Sparks and Riley, what every other court has been trying to do since Swain, that is interpret those cases, interpret Batson, in a way that is fair to all litigants. And what we have in this particular case is Georgia for the first time trying to do that in a reasonable way, but when it comes to Mr. Ford, ignoring his really, I think, impressive efforts to make the point clearly on the record below.
John Paul Stevens: Mr. Ogletree, do you say that Sparks, in his case he, the rule was not applied to him?
Charles J. Ogletree, Jr.: It was not applied to him, Justice Stevens.
John Paul Stevens: I see.
Charles J. Ogletree, Jr.: It's the most incredible set of circumstances that not only was it not applied to him, the court says it's prospective, it says that we had no guidelines before, but Sparks gets the benefit of it. And how in the world can Mr. Ford be denied that benefit in light of the fact that he had done more than Sparks, and had done more than many other cases cited by the Government. And we don't contend, and it's not central to our argument, that Mr. Ford had to make additional arguments, as we state in our brief. I concede now that that is not central to this case, and it is not really well preserved in this record, and the Georgia Supreme Court decided against us on that issue. But I think the point is that counsel objected at the earliest opportunity. Counsel's objection was clear. The Georgia Supreme Court treated us clear. The prosecutor and judge viewed it as clear. And now the Georgia Supreme Court, for the first time, is saying sorry, Mr. Ford, you lose. We think that is an inappropriate result and we urge this Court to so find it. I would like to reserve the rest of my time for rebuttal if there are not additional questions.
William H. Rehnquist: Thank you, Mr. Ogletree. Ms. Smith, we'll hear now from you.
Paula K. Smith: Mr. Chief Justice, and may it please the Court: The case here today involves the validity of the finding of the Supreme Court of Georgia that any Batson claim was not preserved for review on the merits due to the lack of an objection at trial when the conduct giving rise to the claim had occurred. Petitioner contends that the application of the procedural bar in this case does not constitute an independent and adequate State ground, because he contends the rule was allegedly novel and allegedly announced after the fact. And he also contends that this finding of lack of preservation is inconsistent with Griffith. The State submits that the facts of this case will show that the bar as applied in this case is not novel, but is at most a specific application of a general procedural default rule which has been in place in Georgia--
William H. Rehnquist: Ms. Smith, the Supreme Court of Georgia did decide that the petitioner here had adequately made a Swain claim.
Paula K. Smith: --That apparently is the treatment it was given on the first direct appeal, Your Honor.
William H. Rehnquist: And they say in their opinion on remand, too, I think, that he raised a Swain claim.
Paula K. Smith: That is correct, Your Honor.
William H. Rehnquist: Now, is it your position that after Batson people who simply had raised a Swain claim in the lower courts are not entitled to, even though their appeals had not become final, are not entitled to have their case reconsidered under Batson?
Paula K. Smith: That is our position, Your Honor, because of the lack of objection in this case to the manner in which the prosecutor used his strikes on the petit jury. We submit that there was a factual distinction between Batson and Swain. That factual distinction is apparent in looking at the language of Swain itself and discussing when the presumption of the impartiality of the prosecutor strikes is overcome. Swain discussed how it cannot be overcome by the use of strikes in the case at hand.
William H. Rehnquist: Do you... do you think your... the view you're expressing now is consistent with the Court's opinion in Griffith, where it remanded cases to the Supreme Court of Kentucky and to the Tenth Circuit?
Paula K. Smith: We submit that it is, Your Honor. Griffith himself objected. Batson had objected. Justice Powell's opinion in Batson discusses objections. Brown had objected. The third, the fifth,--
William H. Rehnquist: You think they had made actual Batson-type objection rather than Swain-type objections?
Paula K. Smith: --From a reading of the opinions, Your Honor, it is clear that after the jury had been selected in their respective cases, some sort of objection or motion evidencing dissatisfaction with the strikes used in that case was made.
William H. Rehnquist: Well, but you can say the same here, can't you? Certainly, if the petitioner raised a Swain claim, it was dissatisfaction with the strikes used.
Paula K. Smith: But it was before the strikes had been utilized, Your Honor. We submit that the lack of objection following those use of strikes is what is fatal to petitioner's claim in this case.
Byron R. White: Well, if the same objection that he made before trial, literally, was made... had been made just before the jury was sworn, would you say that he had made a Batson objection?
Paula K. Smith: That is what the Georgia Supreme Court held in this case, Your Honor, because he was... we feel that it was incumbent upon him to object when the conduct occurred--
Byron R. White: Yes, but suppose, suppose the... just before the jury was sworn in this case... and I guess the jury was all white except one?
Paula K. Smith: --That is what the record shows, Your Honor.
Byron R. White: And there had been 10 strikes at blacks?
Paula K. Smith: Nine by the prosecution, Your Honor.
Byron R. White: Nine, yes. All right. And if he, if he said exactly what he had said before trial, that please make the prosecutor give his reasons for striking--
Paula K. Smith: That is correct, Your Honor.
Byron R. White: --Now that would have been a Batson objection, wouldn't it?
Paula K. Smith: That would have been a Batson objection. We're not--
Byron R. White: And it would have... and the fact of striking nine blacks would have, would have been a satisfactory basis for making the profit... for making the prosecutor say--
Paula K. Smith: --I can't go to the merits at this point. I would not concede that would be a prima facie case. But our point is he never objected when what he sought to prevent occurred.
Byron R. White: --No, I understand, you say... you say that his pretrial objection was not sufficient.
Paula K. Smith: It was not sufficient. It can either be viewed as premature or incomplete.
Sandra Day O'Connor: Well, do I understand that you take the position that because it was made pretrial, it was a Swain claim, not a Batson claim? But if the same thing had been presented after the strikes had occurred, it would have been a Batson claim?
Paula K. Smith: Well, Your Honor, I think that--
Sandra Day O'Connor: Do I understand that was your response to Justice White?
Paula K. Smith: --In... hypothetically speaking--
Sandra Day O'Connor: I thought it was.
Paula K. Smith: --yes, it is. But based upon the motion filed in this case, petitioner sought to raise two claims. Petitioner cites to the alleged systematic exclusion of the prosecutor in the pretrial motion, but he also sought to change the law. And in paragraphs 3 and 4 of his pretrial motion he cites McCray. He cites Taylor. And we submit that this evidences an intent to focus the inquiry upon the prosecutor's use of strikes upon the petit jury in this case. He is anticipating a change in the law. And we submit that when that conduct occurred, that is when he should have objected to say, see, I told you this was going to happen, and it did. I'm not happy.
Harry A. Blackmun: Do you think the trial judge was misled?
Paula K. Smith: I don't think there's a question as to that, Your Honor. I don't think there is anything in the record as to whether he was--
Harry A. Blackmun: Say that again?
Paula K. Smith: --I don't think that there is any evidence that he was misled up until the motion for new trial hearing, when it was asserted by new counsel that the motion had been renewed and--
Harry A. Blackmun: Well, isn't that the whole point of procedural bars and things?
Paula K. Smith: --I think that there are various purposes of procedural bars, Your Honor, and that is to prevent--
Harry A. Blackmun: Well, on this procedural bar.
Paula K. Smith: --I... I--
Harry A. Blackmun: The trial judge certainly was not misled, was he?
Paula K. Smith: --I don't think that the judge was misled, but we submit that that does not excuse the... the petitioner's conduct.
Harry A. Blackmun: Well, this is a capital case, is it not?
Paula K. Smith: Yes, it is, Your Honor.
Sandra Day O'Connor: Ms. Smith, now the first time this case went to the Georgia Supreme Court, it didn't find a procedural bar, is that right?
Paula K. Smith: It did not, Your Honor. It treated only the Swain aspect of the claim. Although the Georgia Supreme Court did not specifically cite Swain in its opinion, it treated it as a systematic exclusion. Although--
Sandra Day O'Connor: In 1988 the Georgia Supreme Court in Cherry against Abbott appeared to say that Swain and Batson claims raised the same issue.
Paula K. Smith: --They found that the failure to object in Cherry was... did not satisfy cause. This was in a habeas corpus context. They... the court found that the failure to object could not be excused by novelty of Swain, and in fact the author of the Cherry opinion was the author of the dissent in this particular case.
Antonin Scalia: Ms. Smith, wouldn't the same problem of prematurity exist for a Swain claim as would exist for a Batson claim? Can you... can you object to a, you know, a pattern of striking by race when that has not yet occurred in your very case? It doesn't... isn't it the same problem for Swain as it is for Batson?
Paula K. Smith: I don't think so, Your Honor.
Antonin Scalia: Why?
Paula K. Smith: Apparently the Georgia Supreme Court had not focused upon that distinction because, as Swain itself notes, that what occurs in the case at hand is not sufficient--
Antonin Scalia: Excuse me, excuse me. Could you crank that up a bit? I am having trouble hearing you.
Paula K. Smith: --What occurs in the case at hand in Swain is not sufficient to overcome the presumption. So the matter... the manner in which the prosecutor uses his strikes in Swain would merely add, I would submit, to a defendant's proof, but that a pretrial motion--
Antonin Scalia: You would have a Swain claim even if the prosection strikes no blacks, in your case?
Paula K. Smith: --It depends on whether or not he can establish systematic exclusion.
Antonin Scalia: No, it doesn't depend on that at all. You clearly wouldn't, would you?
Paula K. Smith: I don't think--
Antonin Scalia: Which means that your Swain claim is just as premature if you make it before the actual empaneling of the jury as would be your Batson claim.
Paula K. Smith: --No, Your Honor. There, there are a plethora of cases from States and circuits indicating that a single case is not sufficient to establish Swain, and I would submit that if you are able to establish a pattern--
Antonin Scalia: Not sufficient, but necessary, at least.
Paula K. Smith: --I would think that that would be one more element of the defendant's proof, but is not dispositive either way.
Antonin Scalia: Gee, I think it's extraordinary that you, you have a claim... a case in which the prosecutor strikes no blacks from the jury at all, and you nonetheless have a Swain claim. And therefore you can make it before the empaneling of the jury occurs. It seems to me that when your court said the Swain claim was not premature, I don't know why it isn't bound to say the Batson claim isn't as well.
Paula K. Smith: I think had he attempted to establish systematic exclusion at that point, Your Honor, he might have prevailed on a Swain claim. Georgia had not made that distinction in prior Swain cases. We submit that the facts in this record is positive with the issues before the Court. I think the parties agree that a pretrial motion was filed, that it was raised in the amended motion for new trial by new post-trial counsel who was not trial counsel, and it was raised in the first appeal. But we strenuously disagree as to whether any such unrecorded objection was made after the jury was struck in this case, and that any renewed motion gave rise to the colloquy on the second day of trial when the trial court placed the composition of the jury and the manner in which the strikes had been used on the record. Regarding the colloquy of... in chambers, the record itself does not show that this was placed on the record at the petitioner's insistence. This is simply the characterization which has been given this colloquy by post-trial counsel drawn again at the motion for new trial hearing. The trial transcript shows that when this colloquy occurred it was on the second day of trial. The State had presented eight witnesses who had given testimony, and it was prior to resuming after lunch that the trial court placed two matters on the record. One was ascertaining the views of the parties on whether the jurors could go vote in a local election, and then the composition as to the jury and the use of strikes was placed on the record by the trial court. We further submit that at this... it was at this colloquy where petitioner merely agreed with the numbers as stated by the trial court, but did not renew his motion specifically on this record. When the prosecutor volunteered to give his reasons, counsel for petitioner stood mute. We submit--
John Paul Stevens: May I ask this question? One of the things we are always concerned about in procedural bar is to be sure the judge... I think perhaps this is what Justice Blackmun had in mind, to give the judge a fair opportunity to avoid the possible error. And on pages 11 and 12 of the joint appendix, the judge explained rather carefully why he denied the motion, that he was familiar with other trials where blacks had not been stricken, and the like. He apparently felt there was inability to prove a pattern of this kind of strike. It would seem to me that had the motion been made when you say it should have been made, those same reasons would have compelled him to come to the same conclusion. Are you suggesting that he might have ruled differently if the motion had been made a second time?
Paula K. Smith: --I will state, Your Honor, that we simply cannot know, because it was not made. And this Court has recognized in other procedural default cases that perceived futility does not excuse a failure to object. And we submit that due to the nature of a Batson claim itself, it was incumbent upon counsel to complete his claim by saying at the earliest possible moment when this conduct in fact occurred, we are not happy with the jury. A fair reading of the Georgia Supreme Court opinion shows that it was not petitioner's failure to articulate a specific motion, use talismanic words, it was his total lack of objection. In looking at Sparks itself, the... Sparks made a motion for mistrial after the jury had been sworn, but before the state had begun presenting any testimony in the case. And the court said it was made relatively promptly in Sparks, given the fact that Batson had not been announced at the time of his trial, but it was before jeopardy had attached and before the State had developed any evidence.
Thurgood Marshall: Well, Ms. Smith, what about the prosecutor recognizing Swain? The prosecutor recognized Swain, didn't he?
Paula K. Smith: Yes, he did, Your Honor.
Thurgood Marshall: Well, what's your answer to that?
Paula K. Smith: We submit that Swain, as a question of fact, is not the same as Batson. That--
Thurgood Marshall: And what is the difference?
Paula K. Smith: --Swain allows a defendant to try to establish a systematic pattern of exclusion by the prosecutor in case after case, no matter the defendant. Batson narrows that relevant universe to the defendant's trial itself. We submit that that is why it was incumbent upon this petitioner to object at this trial.
Thurgood Marshall: If we should disagree with you, you lose.
Paula K. Smith: Apparently so, Your Honor.
Thurgood Marshall: Thank you. What do you say specifically would have given the defendant here notice that... that if he wanted to object to blacks being stricken, he had to object not at... not pretrial, but when, before the jury was sworn?
Paula K. Smith: We submit--
Byron R. White: I mean at the time... at the time he was tried, what was... where do you find the rule?
Paula K. Smith: --We cited in our brief both the unified appeal procedure, which was followed in this case and which the court itself cites in the first appeal of this case regarding failure to preserve issues for lack of objection. We also cited a 1982 amendment to Georgia's habeas corpus statute, which is in Georgia in effect our state contemporaneous objection rule in its strictest form.
Byron R. White: Well, the trial court certainly didn't say that his pretrial motion was premature. It ruled on it.
Paula K. Smith: Under Swain, and that is not inconsistent with Georgia law on this point, Your Honor.
Byron R. White: So the trial court shouldn't have ruled on it? It should have said premature?
Paula K. Smith: I think for a Swain claim it didn't... that distinction was not in existence in Georgia law. The only timeliness cases that--
Byron R. White: For a Swain claim you could have made it pretrial?
Paula K. Smith: --Apparently under Georgia law you could, Your Honor. The one case in which it was--
Byron R. White: Well, if you... and if the Swain claim is enough to raise an equal protection claim, which it is, and if it's enough to raise a Batson claim, how was he supposed to know that he was... that he was to renew his Swain claim before the jury was sworn?
Paula K. Smith: --Because he was raising both Swain and a Sixth Amendment claim, Your Honor, and we submit that it is his raising of the Sixth Amendment claim that evidenced his intent to focus upon the petit jury that required him to--
Byron R. White: So if his motion had just cited Swain and the equal protection clause, that would have been consistent with Georgia law at the time? Pretrial.
Paula K. Smith: --I... yes, Your Honor.
Byron R. White: And he would not have had to renew it before the jury was sworn?
Paula K. Smith: Georgia law has not made that distinction.
William H. Rehnquist: And yet the Supreme Court of Georgia in its opinion, I believe both the first opinion and the opinion on remand, said that he did raise a Swain claim.
Paula K. Smith: It, it... looking at... there are four paragraphs in the motion, and looking at, he alleges in paragraph 2, he alleges systematic exclusion without citing Swain, and in paragraph 4 of the motion he also cites McCray and Taylor and Sixth Amendment as well.
William H. Rehnquist: Well, but can't we regard the Supreme Court of Georgia saying that he raised a Swain claim and indicating not that there was any procedural bar in connection with the Swain claim, as the final word on Georgia law that he did properly raise a Swain claim?
Paula K. Smith: Yes, Your Honor. We submit that you can. We submit that merely looking at Sparks in the context of Georgia law at the time, not only do we have the unified appeal procedure, the 1982 amendment, you have statutes governing jury selection in this case. There is a specific statute which indicates when you must object to a juror being sworn for cause. We submit that petitioner's reliance upon McCray, in which Justice Marshall in his dissent discussed how a Sixth Amendment claim was raised in California. His reliance upon other jurisdictions indicates that he was aware that other people were perceiving this claim and were making objections or motions for mistrial, or evidencing some sort of dissatisfaction after the conduct complained of occurred. And we submit that the claim in this case is not so novel that he could not have had notice to have objected.
Byron R. White: So, you are not urging that the... that the... that the rule laid down in Sparks... is that it? In Sparks?
Paula K. Smith: Yes, Your Honor.
Byron R. White: Is applicable in this case?
Paula K. Smith: We submit that they merely relied upon Sparks because they had already decided in Sparks itself when a claim would or would not be timely. It was not a mechanistic application of Sparks in this case that yielded the result. It was the lack of an objection by petitioner in this case that the opinion of the Georgia Supreme Court--
Byron R. White: And that the court would have come out the same way if that had never... had never decided Sparks?
Paula K. Smith: --I submit that it would have, Your Honor. I think Sparks simply announced prospectively this is the latest point at which you can make a challenge and preserve a Batson claim.
John Paul Stevens: Ms. Smith, I didn't realize this before, but your opponent says that Sparks was not procedurally defaulted. Is that right?
Paula K. Smith: That is correct, Your Honor.
John Paul Stevens: Now, what did he do that this, this litigant did not do?
Paula K. Smith: He made a motion for mistrial after the prosecutor used his strikes in this case. The jury had been sworn, but the State had not begun presenting any evidence.
John Paul Stevens: I see. It's the motion for mistrial that preserved it for him.
Paula K. Smith: It was the motion for mistrial. And in the Mincey case, which we cited in our brief, the Batson claim was preserved by making a motion for continuance. So, again, we submit this evidences the rationale of the Georgia Supreme Court in finding that it was not that he didn't comply with Sparks, but that he made no objection whatsoever at trial to the manner in which this jury was selected that was fatal to his claim. And in answer to one of your earlier questions, Justice Stevens, Georgia does not apply a procedural default rule, a waiver of the waiver by the State rule. If the trial court has reached the merits, that does not bind the Supreme Court of Georgia. By the same token, if the State did not assert procedural default or if the trial court rejected procedural default, that does not bar the Supreme Court of Georgia from applying procedural default. We submit that the crux of the case is what this Court meant by the remand order in Griffith, and we submit that there's a distinction between retroactivity and preservation of a claim. Under the principles of retroactivity an examination is undertaken to see if a rule is in fact applicable. Under preservation of the claim one assumes the applicability of the claim, but merely looks to see if the claim itself is preserved. And we submit that that is all the Supreme Court of Georgia did here in this case, and found that petitioner's conduct did not fall in line with those persons in Batson, Griffith, and Brown, who had not had the benefit of this Court's decision telling them to object, but perceived the claim as being based upon the challenge of strikes in their trial, and evidenced some sort of timely dissatisfaction through objection, motion for mistrial, or whatever form. And we submit that the decision of the Supreme Court of Georgia in this case is not inconsistent with Griffith. And we would urge this Court to conclude that the decision was proper, that it rests upon an independent and adequate State ground.
William H. Rehnquist: Thank you, Ms. Smith. Mr. Ogletree, do you have rebuttal?
Charles J. Ogletree, Jr.: Mr. Chief Justice. There are only three points I wish to make. In this particular case, when this case was presented to the Georgia Supreme Court, the Georgia Supreme Court clearly concluded that a proper Swain claim had been made. At page 51 of the joint appendix the Georgia Supreme Court and the remand characterizes the motion as properly made under Swain, and in fact, at page 55 of the joint appendix, when the Georgia Supreme Court had the remand, makes clear that Swain's motion... that Ford's motion under Swain, having been decided adversely to him on appeal, cannot be reviewed in this proceeding. I think first of all it establishes that Swain had been made properly. And more importantly, it seems the Georgia Supreme Court is ignoring that... this Court's remand. It is saying in effect we are not going to review this case in light of what the Court requested that we do. Sparks, again, we say is significant in that Sparks could not have complied and did not comply with the procedure announced in Sparks. Sparks' objection did not occur until after the jury was selected, sworn, the judge had given preliminary instructions to the jury. So in terms of the rule, he would not have made it. And in fact the government at this point is contending that Sparks adequately made a showing, and we submit that he did not. Moreover, this Court, we submit, can say that the prosecutor's exercise of 9 out of 10 peremptory strikes to strike the black jurors is a prima facie case, and without rebuttal by the State in this case, that it would be an adequate basis for Mr. Ford to prevail. Finally, we would submit that, on this record, that it shows that this Court, looking at Ford, has yet another opportunity to correct much of the injustice that has occurred and the whole line of racial discrimination in jury selection procedures. From Strauder through Swain and Batson and Griffith, this Court has consistently tried to prevent any form of discrimination preventing defendants from having fair trials, and preventing prosecutors from excluding... excusing citizens from their right to serve as jurors. That principle was clearly stated in Strauder. It is just as clear in Batson. And we submit that Mr. Ford, in his unique circumstances, should not be denied the opportunity to submit to this Court an argument that Batson should be applied. And we urge the Court, in light of this record and in light of the arguments today, to find as Mr. Ford has urged in his brief. Thank you.
William H. Rehnquist: Thank you, Mr. Ogletree. The case is submitted.


Warren E. Burger: I think, Mr. Baird you have one minute left and I take it you're reserving that for a rebuttal. Mr. Wilmer, you may proceed.
Mark Wilmer: May it please the Court. I think at the outset it might be appropriate and go serviceable to the Court, if we would first put in proper relationship, proper context the record in the court below. I would say at the outset that the position of the respondent is not one of an advocate either way so far as this question of finality is concerned. As we review our responsibility here to simply to bring to the Court the facts with respect to this question and then proceed on to as best we can explain the other proceedings in the Court below. I think the best way to put the record in proper relationship to the actual facts is perhaps to begin with the response which was filed by the committee in the Supreme Court of the State of Arizona. Now, it is my understanding from reading rules of this Court that papers that are certified by the clerk of the lower court are part of the record and subject to being considered in this case. I say that for this reason that the appendix which is part of the petitioners filing with this Court excerpts from the committee's response to our Supreme Court, certain portions of that response, necessarily when this matter was brought to the attention of the committee, the full impact, the full exposure of this case in this Court, was not readily understood, and accordingly we did not enlarge upon the printed portions of the response of the Arizona committee on examinations to the Arizona Supreme Court. The original, however, is in the record and I would like briefly to refer to that with the Court's permission. I say that for this reason that we have indicated our position as one of simply here are the facts we made us on the citing of the case now as any other time if in fact this Court has jurisdiction. The Court will recall that it has been brought to the Court's attention that the proceeding in the Arizona Supreme Court was initiated by a petition for an order to show cause, directed to the Committee on Examinations and Admissions. And referring to the appendix before I move on, the prayer of that petition read as follows, the Arizona Supreme Court, “Wherefore your petitioners pray that this Court make another its order requiring the Committee on Examinations and Admissions of the Supreme Court of the State of Arizona be in appear before this Court of at to date at a time certain then an order to show cause, if any it may have, quite petitioner should not be forth with recommended for admission by the State to the State Bar or in the alternative show cause like petitioner's applications should not be processed by the committee without requiring the petitioner, any further answer -- of petitioner any further answer to the question 27 of applicant's questionnaire and affidavit.” The Court would recall this is a question which asked, “Have you ever been a member of the Communist Party or any organizations which supports the overthrowing of the Government of the United States by force and violence?” The opening portion on the memorandum which the committee filed with the Arizona Supreme Court reads as follows: “Applicant in a main treats the posture of our application to the committee as rejected by the committee, and from this false premise enlarges upon a proposed constitutional rights of the applicant. Nothing could be chored from the true fact.”
John M. Harlan II: Are you reading from the --
Mark Wilmer: I'm reading Your Honor and then I'm sorry this is not in the printed appendix, Your Honor. It is in the original of the respond certified by the clerk of the Arizona Supreme Court to this Court.
John M. Harlan II: And why isn't this on the appendix?
Mark Wilmer: Well, Your Honor, I must say it frankly, I didn't suppose it would be needed at the time when I read the appendix as certified. In other words, we did not have a complete view of the flow of the case in this Court as to what or would not be material. Because I read your rules and I assume I am correct. Even though it is not printed in the appendix, nonetheless say for this part of the certified record, it may be referred to before this Court. Of course if that is not true, I should not do so.
John M. Harlan II: Is the paper actually physically in the clerk's office?
Mark Wilmer: It should be, Your Honor.
John M. Harlan II: Oh, thank you.
Mark Wilmer: This would be the responds of the committee to the petitioner's order to show cause and may I please the Court in this Arizona Supreme Court.
John M. Harlan II: (Voice Overlap) I'm reading that again then since we have all have the cause.
Mark Wilmer: Yes Your Honor, I'm sure. I'm sorry I have finally realized the moment (Inaudible). That is if it would have been a better applicant in the main treats the posture of our application to the committee as rejected by the committee and from this fault's premise enlarges upon the supposed in constitutional rights of the applicant. Nothing could be further from the true fact as this appears from the letter of April 24, 1968 attached to the affidavit of Robert A. Gellin where the Court will recall this chief counsel for a petitioner. The committee has not rejected the application of Sarah Baird and does not intend to do so, unless and until further facts appear which would warrant this rejection. I would say in this context, may it please the Court, that this letter of Robert -- to Mr. Robert A. Gellin and antedated the application of the petitioner for an order to show cause to the Arizona Supreme Court. In other words, this was the discussion of counsel prior to the initiation of this proceeding.
John M. Harlan II: Could I ask you a question Mr. Wilmer?
Mark Wilmer: Yes, Your Honor.
John M. Harlan II: Assuming this litigation never been brought and Mrs. Baird simply persisted in her view that she didn't have to answer the question. What would have happen to her application to the bar, her admission to the bar?
Mark Wilmer: Her application, Your Honor, which still as it is today sitting on our shelves waiting for her to either move her mandamuses to complete the processing of it or something else would have happen. In our position of that may I say this briefly Your Honor. The Committee on Examinations and Admissions is a criterion hand made of the Arizona Supreme Court.
John M. Harlan II: Yes.
Mark Wilmer: We have no authority other than that which the Court gives us and I might say if it should become of consequence, the entire rules of the Arizona Supreme Court that are in volume I believe it is 17 of West Publishing Companies of Arizona revised statues. They govern, they limit, they set to the extent of our authority. We have no inherent authority or any kind, the rights other than oath givens by the rules. Therefore, when the Court says to us, ask these questions and they're set out verbatim and this is one of them. Get the answers from them and then you proceed to certify to this Court your opinion. We have no choice as far as we're concerned, we are stymied. We cannot reject it much more as we could if we want to be arbitrary, perhaps we should. I don't know but the facts are that in less and until that question is answered or someone tells us that we most do something else that case with that matter we'll say it as it is.
John M. Harlan II: In other origin, is it fair to say that in practical effect as far as her position is concern, you're continuing to sit down on the hypothetical premises that no litigation had been brought here will be the equivalent if you're saying, “Well you're required to answer this question, since you won't cooperate with the committee, we won't admit you in to the bar. Is that accurate?
Mark Wilmer: Only to this extents, Your Honor. The committee has no authority one way or the other to admit or reject anyone. We merely make a recommendation to the Arizona Supreme Court does the admission, does the rejection. I would say this if it may please the Court that Justice Harlan by interaction between the rule and the committee's action for practical purposes, I would conceive that Mrs. Baird is for the moment at least effectively stymied. Now, whether she should bring a mandamus and in that faction call upon the Arizona Supreme Court to make an effective ruling that is not automated within our providence. I would simply say that as are the moment at least, the Arizona Supreme Court has been told by the committee. We haven't made our decision. We are unable to make a decision and therefore we submit the matters as it is and the Court simply said, “Well we deny the petition, you should complete due process in this petition.” Now, whether that amounts to finality or not within the rule of this Court, I don't know, I express the opinion as to it, I simply bring it to the Court's attention. I might say though for the purpose of my next statement to the Court that this letter of April 24, 1968 which antedated the beginning of this proceeding to Mr. Allen as chief counsel for the petitioner, I believe has some of validity and some value in determining what in effect, what in fact I should say is the actual position of the committee in the court below and the committee here. This letter said, I also believe, that Mrs. Baird should realize that even though she answered the question, “Did she had at one time been communist or had had otherwise been associated with the organizations not regarded as friendly to the United States Government?” This would not necessarily cause us to reject her application. We would undoubtly want to ask you some questions as to her present beliefs and as to the other matters which would bear upon the effect of such membership would have are their qualification to practice law. The committee is aware that under presence of Supreme Court decisions, mere membership in an organization is not sufficient necessarily to disqualify rank and positions of responsibility and this would be the added through the committee in this matter. Now, I say that for this position for this reason if it please the Court. We have had here what I would term some rather fancy steps down the sidelines, so to speak, of what words mean. I believe that as we proceed, we'll find the committee made it an unequivocally and plainly apparent to Mrs. Baird. We were not concern with what her beliefs were such. We are not concerned with looking inside her heart to see what she believe or didn't believe in. We were concerned with finding out did she have the qualification which should make her a lawyer, which would justify us in certifying to the Arizona Supreme Court that in fact she would be a lawyer that the Court would be proud of having admitted. Now, a fair reading, I believe if it please the Court of the committee's a letter to Mr. Allen. The Committee's response to the Arizona Supreme Court have our response here indicates simply one thing whether we use the word "belief" or whether we use the word "view"1 or whatever word we use. We are concerned with one thing. I heard yesterday the questioned ask if Mr. Baird would prefer the question he presented here whether the record he's made in the court below or here. And I believe he said here. I have to confess surprise. I wrote them both and I really didn't think I was saying anything different one time than the other. I thought we were saying to the court below and the thought we're saying to this Court that if Mrs. Baird believes in the sense that she would actively advocate and assist and advance the overthrow of the Government of the United States and the States of Arizona by force and violence, we want no pardon nor will we recommend her for admission to our Arizona Supreme Court unless and until we are told to do so by some higher authority.
Thurgood Marshall: Mr. Wilmer.
Mark Wilmer: Yes, Your Honor.
Thurgood Marshall: The statement in your brief, you want to know whether not Sara Baird is only if she is found to actively believe.
Mark Wilmer: That is right.
Thurgood Marshall: What that meant?
Mark Wilmer: Below? Your Honor, I meant by that that she was prepared to go out and walk up and down the streets and take other step necessary to advance.
Thurgood Marshall: Well, let's leave it if she's willing to walk up and down the streets.
Mark Wilmer: Pardon, Your Honor.
Thurgood Marshall: Well, let's take the first one. Suppose she is willing to walk up and down the street.
Mark Wilmer: Advocating the Government -- overthrow the Government by force and violence?
Thurgood Marshall: Yes.
Mark Wilmer: I would say if it please the Court that number one that that would contravene the Canon of Ethics, which said you shall do nothing to bring at disrepute the profession of the law or the Court. Therefore, I would say that if Mrs. Baird said, I propose to walk up and down the streets out for -- I'm admitted as a lawyer and proclaiming to the world that I a lawyer believed we should blow up the capital, assassinate public officials and otherwise change that form of this Government by force we want no pardon of her unless we're told we must let her in.
Thurgood Marshall: Well, I supposed he catch up at a sign which says I don't like Colorado.
Mark Wilmer: I don't like which one?
Thurgood Marshall: Colorado or the United States.
Mark Wilmer: I would have no problem with that at all. I think that's her privilege. That's her privilege.
Thurgood Marshall: Where is the line you're going to get on this?
Mark Wilmer: The line that I draw Your Honor is when you talk about destruction of this Government by force and violence.
Thurgood Marshall: Believe in it or do it?
Mark Wilmer: Pardon.
Thurgood Marshall: Just to believe in it?
Mark Wilmer: The committee's position Your Honor was not just a belief. Your committee, the committee's position was actively accept and actively advanced that philosophy and that solution.
John M. Harlan II: Well, I think you get much of this for saying (Inaudible).
Mark Wilmer: Yes, certainly.
John M. Harlan II: Oh, I see.
Mark Wilmer: We couldn't care a less what are beliefs are in any field except that which endangers directly upon the validity and the utility of her service as a lawyer as to those matters we are concerned and we're critically concerned. Now, --
Thurgood Marshall: Does this means that you do some act in addition to believe it?
Mark Wilmer: I would say your (Voice Overlap) the occasion is right, you would do it, yes and I don't believe that person should be a lawyer.
John M. Harlan II: Those first statutes that you're talking about are not incorporated in the question.
Mark Wilmer: They would have been incorporated in the questions asked.
John M. Harlan II: You have to take a position that this is preliminary?
Mark Wilmer: Yes, Your Honor.
John M. Harlan II: Preliminary that needs further investigation.
Mark Wilmer: Our rules provide Your Honor that in making its investigation, the committee can conduct an informal or formal investigation. It can interrogate a witness in formally with the understanding that if that interrogation is to be made a part of the decision, it must then to conform or it must go on record but I have tried to say numerous times, we would simply call Mrs. Baird and say, “Look what do you really believe about this? Do you? Are you prepared if you're admitted to practice should a crisis arrive that the Government is threaten with violence, are your hands completely free and are you as a citizen completely able to stand behind the forces of government which you firmly uphold when you become a lawyer? Or that point will you retire and negate the oath which you took?
John M. Harlan II: Could I ask you another question?
Mark Wilmer: Sure, Your Honor.
John M. Harlan II: How long has this questioned in the present form been part of the process and requirement for admission?
Mark Wilmer: Your Honor, I can't answer that that other than to say has been there for at least 10 years to my knowledge and I would assume many years prior to that. I think it is not an --
John M. Harlan II: It has not been revised.
Mark Wilmer: Pardon.
John M. Harlan II: Has there been any attempts to revise it?
Mark Wilmer: No, as far as I know Your Honor. The rules as they now -- that is these rules as they now stand are those that probably I answered four years ago but I can't swear to that, I don't remember. It's been a long time, we'll put it that way.
Warren E. Burger: May I ask you another question?
Mark Wilmer: Yes, Your Honor.
Warren E. Burger: Does this application require an applicant to restate whether he or she has ever been convicted of a criminal act?
Mark Wilmer: If he has a usual question whether not they have been involved in fraud whether or not they have been bonded and if such, there had a bond claim it against him and have they been involved in any criminal actions?
Warren E. Burger: I suppose if there was an applicant refuses to answer that particular question, with that applicant be done on the same procedure that Mrs. Baird is in at the present time with reference to the board's action?
Mark Wilmer: Yes. Yes, I'm sure we're not going to say you refuse to tell us if you stole money somewhere so we're going to admit you anyway.
Warren E. Burger: Now then, if the answer to that question might be yes when I was 14 years old, I was found guilty as a juvenile of some offense, would that in and of itself bar or prevent her admission as a member of the bar?
Mark Wilmer: I can say this in all honestly, Your Honor, we've admitted people at their younger age have been guilty of burglary, statutory rape or what have she questioned have been rehabilitated? Do they now measure up to the standards of who or what a person should be or appear she desires to be a lawyer?
Thurgood Marshall: Mr. Wilmer, you also said she had yes to 27, that wouldn't automatically bar.
Mark Wilmer: To 27?
Thurgood Marshall: To the question in 27.
Mark Wilmer: No, it would not bar her. No, no, no Your Honor. It would not.
Thurgood Marshall: You then have a hearing and sort of hearing then.
Mark Wilmer: We would then endeavor to find out how deep did that belief lie. And if it lay on the surface and then simply a childish thing, a passing fancy that's one thing. If it descended to the depths of an embedded truth, fanatical, getting the Government should be destroyed. I therefore then feel it that person should not be admitted to practice law. Now, I would like to simply say then Your Honor that we are told that this belief that Mrs. Berg talks about is a political belief, it's a political matter, its something which is protected by the decision of this Court. Therefore, we should not be permitted to inquire under thought processes connection with it. I find it difficult, if it please the Court, to believe that the notion of a bomb dropped at the appropriate time in 17 different places in the United States and then attempt to take over the Government is a political matter and that is what I read into the notion of overthrowing this Government by force and violence. 1I do not read into the notion of assassination of public officials, members of the Congress or other persons which in positions of authority for the bad purpose. I do not read that as a political activity or as a political belief which is subject to protection. Some years back, unfortunately we had I suppose what was then considered a form of the administration of justice in the western states and unfortunately in other places commonly known as necktie parties. But all of these are true that when that unfortunate individual was strung up who is suspected of having been a rapist, suspected of having been a murderer or whatever capital thief, whatever you want to term it. I suspect that you might turn not the administration of justice but I don't believe that you would term that the administration of justice in the sense that we are speaking of the administration of justice today and by like talking, I do not believe that the notion of violence, a violent overthrow the Government of this country for the very purpose of destroying it as a political belief, if so on smarter than I will have to convince the other. Now, I should deal briefly if it please the Court to this public versus -- Spevack versus Klein which is of course the -- probably the case that expand many of these things that are now coming to life.
Byron R. White: Do you --
Mark Wilmer: Yes, Mr. Justice White.
Byron R. White: Do you feel that the Fifth Amendment claim is open in this case?
Mark Wilmer: Incrimination?
Byron R. White: Yes.
Mark Wilmer: I would not raise the point that it was not -- that is was not adequately raised Your Honor. I would not raise that because I think at least we were unnoticed to the fact that she deserves that.
Byron R. White: Was there any indication that at any time during these proceedings at least until it got to the Supreme Court that there was refusal to answer at question 27 on the grounds of self-incrimination?
Mark Wilmer: The answer to the question as given on the, in their, on the affidavit was not applicable. I frankly do not --
Byron R. White: Were there any correspondents or any conferences where the --
Mark Wilmer: Yes, I would have to say Your Honor my recollection is that probably it was raised.
Byron R. White: The Fifth Amendment was raised --
Mark Wilmer: Yes I would say it.
Byron R. White: Without refusing the answer to the question.
Mark Wilmer: I think it was Mr. Baird, I'm sure I can qualify my answer one where the other be but my recollection inside in this discussion with Mr. Allen and in related matters that at least to put the point we'd brought up that this amounted to incrimination.
Byron R. White: So, was it -- it was urged in the Supreme Court of Arizona?
Mark Wilmer: Well, Your Honor the problem with that year that there's the brief, relatively brief petition filed. The relatively brief response with the memorandum and the argument was not reported.
Byron R. White: Was there a memorandum supporting the petition?
Mark Wilmer: Yes.
Byron R. White: Did that mention the Fifth Amendment?
Mark Wilmer: Your Honor, I have to confess, which I don't know. If it would be -- it would be with the file but I don't have a sharp enough recollection at the moment to answer Your Honor and be of service to you. I would simply say with respect to the Klein case which of course says that the lawyer may not be disbarred for refusing to answer the question that is relative at the Fifth Amendment? I think that that case is not readily distinguishable. I would be little optimistic to say that but I would say it is distinguishable and I think it is distinguishable on adequate grounds and that is the Fifth Amendment situation, if it please you, Mr. Justice White. I don't like to use this illustration but I can't think of none more apt and that is this. In Arizona and Massachusetts and Florida and Washington, they have what is called dog race and in that particular activity which is per mutual betting situation. Dogs that have never run are what are called schooled. In other words they are run through the race as if it was a race. There time is recorded, the whole thing is recorded just like any race track in which way with desire to know about any dog or horse. And based on that when they do start running they are (Inaudible). Well, now the reason that is you has a track record. You have something to go over and those that have been on the track and have run have already established themselves and I say therefore that when someone comes who has not have a track record as to we have no background, then rightfully a different rule should apply than from a lawyer who has been admitted to practice which established his reputation or his ability relative to practice, who has in all things carry himself such at the bar may property criticized. And then therefore, I say that when we say that a lawyer who has been admitted to practice who is a practicing lawyer should be permitted to take the Fifth Amendment, I would readily distinguish that from the applicant who is a raw product, if I may use that, that expression, whose qualifications, whose future, whose ability is unknown that then we must judge and therefore we are entitled to ask many questions, we probably should not and could not answer at admitted lawyer. I would just say and closely if it please the Court that there are some very sound reasons for the formality of this affidavit and the application. I realized it is perhaps since burdens at some of the outset but without attempting if it please the Court to appear critical of our law schools. I think one of the biggest problems that is met by the bar today and by the administrative committee is a complete default in many of the law schools of any attempt to teach ethics at all, of any attempt to teach professional responsibility and it is only when we bring these young people up short against an application which indicates, this is a mighty important thing. This is a type of practice that is very, very important that all these things declared before you may practice. We think that tends to bring to their mind and perhaps the consciousness of the importance of this. I might just say it in one more other thing. Seven or eight years ago, Ohio Supreme Court at the committees request, adopted a rule that says you can't be admitted to practice until you pass the examination of professional ethics. You can't be admitted until you have passed that examination. I will say this that we no longer have applicant who spell Canons of Ethics, C-A-N-N-O-N-S then I can spell up. We do not catch anyone on the basis of that requirement. We teach them how the lawyers, if it please the Court, that this is an important profession and that ethics is probably the most important part of it and therefore this type of an application, we feel, is highly important as bringing ho1me to the extent we can to the applicant, this is a mighty important thing you're going into. This was a very, very serious thing that you're going into. These questions are necessary because unless you live a road of spotless life you don't belong in our profession.
John M. Harlan II: Can I actually ask the number of questions perhaps they're a little outside the record that I think it's appropriate to ask them in understanding that in any other way. In light of what you say your standards would be in Mrs. Baird in answering this question going further in satisfying yourself that this was something more than that belief in the abstract's answer. Have you ever asked your Court to change the form of that question to incorporate those elements in it?
Mark Wilmer: No, but I think perhaps that this might be an indication we should Your Honor. I like to say these are old, old questions and --
John M. Harlan II: Yes.
Mark Wilmer: I'm not at all here defending them. I'm simply here saying that these are what we lived with.
John M. Harlan II: Second question that I wanted to ask you is if this litigation pending what's the fate of that question as it's in present form now or applicants refusing to answer or you're holding up or are they answering it or oops, they are not?
Mark Wilmer: Your Honor, they are both the management if they're now and raising the question of residency as being a right or any residency in the light of a Shapiro case. We're now having a span of objections to any requirement of residency because of Shapiro case. So, that for that as to this one question they seem to have become reconciled answer.
Potter Stewart: As I understand it even on the full record that is here, we do not have Mrs. Braid's answers to question 25, is that --
Mark Wilmer: No, Your Honor but I would not make a point of that because my recollection is at Mrs. Braid did answered, if she haven't been sure we wouldn't made a point of it. I cannot recall in detail what her answer was but I know it satisfied us or we would have or should have been but of my recollection is she did list quite a number for organizations but it is not here and I would take responsible --
Potter Stewart: Would there be any objection either of you who is supplementing this record if this is an admitted fact that she answered them and do submit the --
Mark Wilmer: I'd be glad to Your Honor.
Potter Stewart: Submit the answers.
Mark Wilmer: No (Voice Overlap).
Potter Stewart: I myself I'd like to see the record supplemented.
Mark Wilmer: If I had realized it that we would have it here Your Honor but we'd be very happy to do it, supply it ourselves. Mrs. Baird can supply whatever she can be.
Hugo L. Black: Would she have been required on the answer in answering question 25 to state that she had been a member of the Communist Party, if she had?
Mark Wilmer: Yes.
Hugo L. Black: That was required by question 25.
Mark Wilmer: Well, the broadness of the question states all of the decisions.
Hugo L. Black: Well, it was required you said.
Mark Wilmer: It would do it in my judgment Your Honor.
Hugo L. Black: We could proceed on the assumption that she has been asked if she belong to the Communist Party and has said no.
Mark Wilmer: We would accept it on its face value among something --
John M. Harlan II: Of course your question is a little broader, it's not on communist party but other subversive organizations.
Mark Wilmer: Correct.
John M. Harlan II: And therefore I would suppose that a failure to answer the party wouldn't necessary say address if this question is proper on 27, so that you don't have to bear it true and find out which of the organizations maybe subversive and so forth.
Mark Wilmer: I'm trying to make that point Your Honor that we do not have the facilities to chase down each organization and we feel that if someone knows it that she tell us but we do disagree with a notion that they are oblige to research and that all they need to say is I don't know if they don't know.
Hugo L. Black: Now I would ask you a question at that.
Mark Wilmer: Yes Mr. Justice Black.
Hugo L. Black: In view of your answer that further have when she was asked to state all of the organizations that she belong to since she had been 16 years old. Was that asking her to state if she had been a communist just the same as 27 more on?
Mark Wilmer: My interpretation of that question Your Honor is really that it is a duplication of 27.
Hugo L. Black: That is a duplication?
Mark Wilmer: Yes, I --
Hugo L. Black: And she did answer?
Mark Wilmer: She didn't answer 27.
Hugo L. Black: She stated the things she said she's belong to.
Mark Wilmer: Yes, I'm sure that is right Your Honor.
Warren E. Burger: I think you have just one minute left Mr. Baird.
Peter D. Baird: One minute I'll take. I would like to respond to Mr. Justice White's question about the Fifth Amendment. It was raised in a letter to Mr. Wilmer and the committee and this is part of the record. It is in June 27, 1968 in a form of a letter were Spevack versus Klein was discussed and there was a memorandum attached to that where the application of the Fifth Amendment to the bar admission process was discussed and Mr. Wilmer's brief that there was a statement that she did not assert the right of self-incrimination but this is in a letter dated July 31, 1969. Mr. Wilmer sent to Mr. Davis, the clerk of this Court stating that that was an incorrect statement that in fact she had asserted the privilege.
Hugo L. Black: Of what?
Peter D. Baird: Pardon me.
Hugo L. Black: Privilege of what?
Peter D. Baird: Against self incrimination, the Fifth Amendment right.
Hugo L. Black: Was it at the time she answered this question a crime against the federal Government to belong to an organization which is pledged to overturn the Government by force.
Peter D. Baird: By literal reading at the Smith Act I would say yes.
Byron R. White: But she answered the question 25?
Peter D. Baird: Answered question 25.
Byron R. White: And why did she refuse to answer that?
Peter D. Baird: Because we were required Mr. Justice White under Konigsberg and Anastaplo to answer that question which called for the names of organizations. She was specifically directed by the mandate in those cases we believe to answer that kind of a question.
Byron R. White: What if the question 25 is to state whether you are a member of the Communist Party and also state all other organizations of which you are a member. Would you have had the right to assert the privilege in any respect?
Peter D. Baird: Not at that point at all, no.
Byron R. White: Why not?
Peter D. Baird: Because I think Konigsberg and Anastaplo required the pain of being a --
Byron R. White: Would you take you're entitled to assert the privilege of self incrimination as the first part of question 27?
Peter D. Baird: No, I believe the first part with respect to the name of the communist party, she does not have that right however --
Byron R. White: You say that the State may and in spite of the privilege as Mrs. Baird, are you a member of the communist party?
Peter D. Baird: Under Konigsberg and Anastaplo.
Byron R. White: Well, that is but I want to know what you're asserting here. Are you asserting the privilege against self-incrimination to shield Mrs. Baird from having to answer the question, “Are you a member of the communist party?”
Peter D. Baird: I would say we cannot stand on that particular basis before this Court because of our answer to question 25.
Byron R. White: Well the, what -- it would respect to what, are you asserting the privilege in this litigation?
Peter D. Baird: We are asserting the privilege to question 27 which requires us to make a determination of other groups in that category that she has already listed.
Byron R. White: Was that a Fifth Amendment claim or a First Amendment claim.
Peter D. Baird: I, its both.
Byron R. White: And how is it a Fifth Amendment claim? It is a, you you've said I am. Let's assume you had answered I am a member of the Communist Party. Do you think then that -- do you think then that even though you had answered that question you could also assert the privilege and say I am privileged not to characterize the Communist Party?
Peter D. Baird: Well, there may be other groups Mr. Justice White such as I can maybe the STS is considered subversive, maybe they are in response to another question. Maybe there are other organizations which she can draw the line on and question 27 is.
Byron R. White: We have a question 27 only refers to the organizations that you listed in 25?
Peter D. Baird: Well, it in effect would have that practical result, yes.
Byron R. White: And so you looked at those questions that those organizations you listed in 25 and you ask yourself are there any of these groups subversive, I have listed them or any of this group subversive, you think that is a, you have a Fifth Amendment right then refuse to answer that question?
Peter D. Baird: Yes.
Warren E. Burger: Thank you Mr. Baird. Thank you for your submission gentlemen. The case is submitted.