Kleinbart v. United States

NEWMAN, Before MACK and GALLAGHER, Judges, Associate Judge. Senior MACK, Judge: Associate motion, appellant’s On and with the government’s agreement that it would be appropriate, a division of this court has prior remanding recalled its mandate trial court for a new trial on appellant’s insanity defense, hearing and a government on claims that withheld Brady1 materials2 from him. See Klein (Kleinbart II), bart v. United States (1981). division, A.2d 343 This while con nonfinality cerned with the of a cause of action which has moved back and forth Brady Maryland, court. resolved The trial court (1963). 10 L.Ed.2d 215 government appellant’s found that the violated him, Brady rights by delivering materials to argument, appellant’s apprised oralAt magnitude but this violation was not of such the court that a trial was still on the justify to undermine the verdict or reversal. insanity Brady defense. The issue has been courts, the trial had appellate sup- between whether there been materials, and, nevertheless mandate of pression Brady concludes that the in view bifurcation, Kentucky, court’s of the trial denial of (1987),requiring insanity new trial on the defense. How- application the retroactive to ever, of new rules proceedings those still while cases, nonfinal dictates pending, decided in v. United we Robinson reversed, conviction be trial or- and a new States, that supra, 448 A.2d at it was dered, because of the rеfusal trial court’s a criminal defendant from error to exclude permit appellant present to at voir pe- to be appellant Accordingly, voir dire. bench pursuant 43(a) dire to Super.Ct.Crim.R. in mandate to recall its titioned this court (1981).3 States, See Robinson v. United and a II, and seeks reversal Kleinbart now (D.C.1982), 448 A.2d 853 reh’g en banc court’s by reason of the trial new denied, (D.C.1983). 456 A.2d 848 announced principles of later violation the in Robinson.

I Appellant July was indicted on II first-degree armed, first- murder while supra, Kentucky, v. murder, degree pistol and carrying a with- Griffith involving application the retroactive Appellant’s out a license. ended first trial conviction to a state the Batson4 decision charges, in a mistrial on the murder and his review, Supreme pending on direct charge weapons conviction of the was re- sweeping in and all-inclusive Court held versed because his to a the conduct language “a rule for that new public abridged. trial had been Kleinbart applied prosecutions of criminal is to be (Kleinbart I), v. United States 388 A.2d federal, cases, state or retroactively to all (D.C.1978). trial, ap- In a second final, yet or not pending on direct review pellant appeared pro se, by assisted court- exception no in which with for cases appointed stand-by counsel, upon being rule ‘clear break’ constitutes a guilty first-degree found murder while supra, Kentucky, past.” armed, prison was term of sentenced to a 716; States 107 S.Ct. at see twenty also appeal, to life. On a second 2579, 73 Johnson, 537, 102 S.Ct. II, argued, Kleinbart (1982). among things, L.Ed.2d other he had been de- Griffith, argued in the instant case nied the to defense conduct his own se, retroactivity constitution part addressing re- pro because the trial court an rules, rule inapplicable him to the participate fused allow al Robinson, bench, dire conferences in our case. conducted at nounced Robinson only preferring stand-by present itself says government, to be concerned violation, more in his stеad. narrow procedural We answered the with a rule noting over, his de argument by judge “appellant’s ability the trial to conduct im gave during jury conducted the dire and entire voir fense selection reject We stand-by prospec- by counsel time relate the exclusion.” paired his brief that the vio jurors’ appellant. tive answers We ex- We conclude this contention. 43(a) of consti pressly rejected most other issues on in this case is of the lation of Rule hearing on appeal, magnitude, but remanded for a Boone v. United tutional 43(a) Equal Superior provides Amendment 3. Criminal Rule violative of the Fourteenth part: REQUIRED. The government’s in relevant “PRESENCE Clause based on the Protection arraignment, shall be defendant at the challenges to strike members use of plea, every stage time of the trial at the including venire, jury race of the defendant’s (em- impaneling the original). of the ..." showing, a defendant had made this that when phasis in supply prosecution to burden shifted to the explanation peremptory chal- a neutral for the Kentucky, Batson v. 96-98, lenges.’ Id. 476 U.S. at 106 S.Ct. at 1722- (1986). The Batson Court held that a state could estab- criminal defendant prima lish a facie discrimination case of racial (D.C.1984)(en prison shall be done the absence of the banc) (Belson, J., that, concurring), principle un- This er.” embraces cirсumstances, der the jurors, instant error since present at the selection of beyond could not be harmless a reasonable liberty may depend prisoner’s “life or doubt. See Beard v. United which, upon by personal pres the aid (D.C.1988). This is so not- ence, may give to counsel and to the withstanding Judge Gallagher’s dissenting triers, jurors. in the court and selection concerns about time.5 the defense not be The necessities of presence only.” of his counsel met Appellant’s request pursuant 373, 13 Boone, Id. at S.Ct. at 137. See also Super.Ct.Crim.lt. 43(a) (“The importance supra, 483 A.2d at 1137 during implicat bench conferences voir dire [appellant’s] presence at voir dirе cannot rights guaranteed ‍​​‌​​‌​‌‌​​​​​​​​​​​‌​‌‌​‌‌‌‌​​​​‌‌‌​​‌‌​​​‌​​‌‌‍ed under the Fifth and Indeed, overemphasized.”). “[b]ecause Beard, supra, Sixth Amendments. See only process there is one voir dire for elicit 1373; States, at 535 A.2d Boone v. United ing challenges challenges peremptory and 1139; supra, 483 A.2d at Robinson v. cause, right present a defendant’s to be States, supra, United 448 A.2d at 856. purpose necessarily for either at voir dire long scarcely We have held that is “[t]here present embraces the to be for the any right more fundamental to a criminal (Ferren, J., concurring). 1142 other.” Id. at present defendant than to be in court while By excluding appellant from con all bench progress.” his trial is in Miller v. United ferences, dire, particular and in the voir (D.C.1969). 574 Fur oppor court did not afford ‘an ther, the constitutional status of the tunity beyond requirements the minimum to be at one’s own trial is of an express arbitrary of fair selection tique 574-75; vintage. Hopt Id. at Utah, preference the chal 202, 204, ...’ which 4 28 S.Ct. lenge designed ensure, [appel L.Ed. is and statutory ... (abridgement stages to be at was to assist all of trial lant] ‘[un]able [his] ” Robinson, process). jurors.’ violates due the selection of Supreme As the su (citations omitted). Court pra, held Lewis v. 448 A.2d at 856 United 370, 372, 136, 137, conclude, Boone, U.S. S.Ct. 36 L.Ed. We as we did that (1892), leading “A principle per “[ejxcluding [appellant] that dire the voir procedure vades the entire law of questioning may criminal the im bench have that, found, nothing after indictment paired ability his to exercise his strikes for dissent, Judge Gallagher (¿a, pending In his states: cases on direct review or nonfinal cases) specifically provided excep that Even if this no case involves a "constitutional adjudication, quite rule” in constitutional it is tions were to be made because the new rule thing say Supreme a different that the past. constituted a clear break with the Griffith, requiring Court decision in retroac- noted that fact that the new rule Court “[t]he application tive of new rules may past constitute a clear break with the has cases, applied nonfinal should be to this case bearing inequity no on the ‘actual results’ that ... where his conviction occurred some thir- only many similarly when situated de one years ago, long teen before our first an- rule." fendants receives the benefit of the new requirement relating nouncement of the rule (citation omitted). Focusing Id. 107 S.Ct. at 716 place selection took in Robinson v. conviction, therefore, on the time of would States, [supra United ]. only principle requiring erode not retroac Judge Gallagher at 1241-1242. fails to Infra underlying application tive but the rationale recognize (i.e., that this is a nonfinal case Thus, specifi principle. Supreme separate appellant’s insanity trial on defense is cally problem applying noted "the with not pending). finality still It is the of the decision rules to cases on direct review non- [or applica- which dictates the bounds of retroactive inequity final is ‘the actual that results cases] rules, tion of constitutional not the accrued time many when the Court chooses which of similar Indeed, very controversy since conviction. ly situated defendants should be the chance resolving which the Court in was in- beneficiary’ (quoting of a new Id. at rule.” prisoners volved the status of convicted before Johnson, supra, holding. United States v. 457 U.S. at 555 why carefully its That is the Court (emphasis delineated the classes of cases which were n. 102 S.Ct. at 2590 n. 16 application original)). receive benefit of retroactive prejudiced having him at- deprived cause have he was “because therefore portion dire rights.” that took of his fundamental constitutional tended (Belson, J., concurring, at the ... he was without place Id. at bench Mack, Newman, jurors, Judge, necessary whom then Chief information about Ferren, Rogers, him to Pryor permitted Associate make would have which Here, Judges, joined). appellant’s intelligent “inabili- per- use an informed and ty participate implicates process challenges.”6 agree. due Here emptory We proceeding rights deprives of fun- the bench jurors7 questioned at be- three damental fairness.” Id. at 1143. of the sitting jurors. Each three came family who had either had a member jurors Further, a constitutional where crime, or victimized violent been involved, deprivation himself, representing In victim himself. proving the harmlessness of burden deprived of this information appellant was beyond the error a reasonable doubt. (i.e., jurors were im- whether or not these 18, 24, Chapman California, 386 experiences given with violent partial their (1967); crime), elicited the court had at voir States, supra, Miller v. Indeed, government concedes in dire. determining the error was whether hear “appellant did not each its brief harmless, question “is not whether response.” oral actually prejudiced, but accused was possibility there is reasonable any whether enough It is not States, 142 prejudice.” v.Wade United convey the informa stand-by could counsel 356, 1046, 1050 360, 441 App.D.C. F.2d him. voir dire to This tion from the bench (1971). recognize we the rea While that banc, court, concluded that sitting en require sonable doubt test does not conclu or extensive involved matter how “[n]o harmlessness, proof sive or or see absolute lawyer, his prior were discussions States, 519, Winestock v. United 429 A.2d or heard seen may what be irrelevant when (D.C.1981), it a requires 529 more than memory or lawyer tap a associ by may his alleged prejudice may not showing that the may in turn ation of the defendant’s which have The must occurred. v. use Boone Unit to his defense.” be convincingly alleged preju show that the States, 483 A.2d at We supra, ed highly unlikely, dice and that reversal was the refusal of the need not decide whether grounds of prejudice on the such would present appellant to be permit court trial unreasonable. part a denial of dire at voir constituted right self-representation under Far his We conclude that constitutional etta, to note that supra. It is sufficient alleged error not harmless be here was protection of Appellant, appellant who has been denied the yond a reasonable doubt. protections ‘incorporates right rule which Amendment exercised Sixth by Confron Faret the Sixth Amendment conduct his own defense at see afforded Clause, Amendment Due 806, the Fifth California, ta v. 422 U.S. 95 S.Ct. tation Clause, law 2525, (1975), that Process common 45 L.Ed.2d 562 contends Further, Moreover, appel- while dire conducted the bench. the entire voir was conducted bench, presence. The at the outside case one lant in the instant retained distinguished thus from those cited challenge, but one of the factors we this is dissent, only portion of in each of which consider, hardly dispositive in considera- bench, only voir dire was conducted at the dire, of the voir of the circumstances tion other questioned jurors impaneled. See two so deprived appellant of the particularly was since 815, (D.C. States, Gary United 499 A.2d might very led use have ‍​​‌​​‌​‌‌​​​​​​​​​​​‌​‌‌​‌‌‌‌​​​​‌‌‌​​‌‌​​​‌​​‌‌‍him to information denied, (en banc), 1985) cert. it. (1986); Young v. 89 L.Ed.2d States, (D.C.1984); 478 A.2d 290-91 United sitting jurors, appellant lists four 7. While Washington, 227 U.S. United States v. also jurors that one of these was record indicates (1983). By App.D.C. 705 F.2d interesting ju- excused. It is to note contrast, egregious presents a this case more robbery. ror's wife was a victim of a Robinson, supra, than that violation only bulk of voir dire” where "the presence....’” banc, hearing rehearing Beard v. United or en which this States, supra, (quoting 535 A.2d at 1375 summarily Subsequently, court denied. Welsh v. United 466 A.2d proceedings while the pending, below were (D.C.1983)). this court issued its decisionin Robinson v. (D.C.1982), 448 A.2d 853 Finally, although on occasion it denied, (D.C. reh’g en banc argued, argues has been as the dissent 1983), prompted him to file a motion here, presence that the of an accused at to recall the mandate in Kleinbart v. Unit dire bench voir would cause some discom (Kleinbart II), (D.C. ed 426 A.2d 343 States prospective jurors, fort to might actu 1981). This motion also was denied ally disadvantage work to the of the ac Now, order of court. cused, on his third .this controlling. this concern is not motion, post-appeal requests this court of an accused to be II, present reсall our mandate in precious at trial is so Kleinbart su a national heritage pra. only that it can or waived out weighed by grave misconduct so on the Appellant raised on his twelve issues sec-

part of the accused that it threatens the appeal, II, ond direct Kleinbart heritage endurance of the itself. Illinois 346-60, including A.2d at a claim that he Allen, 337, 348-50, was denied his constitutional 1057, 1063-64, (Brennan, J., pro his own defense se. One facet (1970).8 concurring) appellant, Here com of this latter claim was the court’s plying court, with the rules of the asked to refusal to him participate allow in bench dire; at voir of this denial during conferences questioning voir dire request constituted error. reversible veniremen, judge a role the trial rele- REVERSED AND REMANDED. gated standby counsel. This court decid- ed unduly was not restricted GALLAGHER, Judge, Senior in conducting voir dire with the assistance dissenting: (which standby appel- assistance I agree do not required that we are throughout trial). lant solicited The court grant appellant case, a new trial in this deprived that he was not “conclude[d] based on this record. right pro his to act se.” [constitutional] II, supra, Kleinbart 426 A.2d at 349. July On appellant was indicted Thus, appellant’s regarding claim of error for first-degree armed, murder while first- participation in inquiry the voir dire degree murder, carrying pistol and a with- prospeсtive jurors by was decided this out a license. At jury his first a court on the second direct review. How- unable to reach a verdict on the two mur- ever, 30, 1981), (January on that same date charges der and a mistrial was declared. the court remanded the to the trial jury The found guilty carrying him a (1) court to consider three other issues: pistol license, a without this but conviction government suppressed whether the excul- appeal was reversed on because his consti- patory Brady material violation of v. right public tutional to a trial was violated. 1194, Maryland, 373 U.S. 83 S.Ct. 10 (Kleinbart I), Kleinbart v. United States (1963); (2) govern- L.Ed.2d 215 (D.C.1978). whether the retrial, 879 At a any impeach- ment withheld information of apрellant represented (pro himself ), se assisted able convictions of its witnesses that was court-appointed standby counsel, defense; jury not otherwise to guilty a found him available and of first-de- gree hearing developed murder if neither receiving while armed. After information twenty years life, compel a sentence of ap- setting to which would aside the ver- pealed. After this guilty conducting court remanded the case dict of and a new trial to the merits, trial court for proceedings, further then the trial court should con- infra, appellant filed a motion for re- duct the second half of a bifurcated trial to Allen, Notably, Supreme years Court enter- to be at trial some thirteen after challenge began. tained the to the constitutional the trial yet fi- insanity retroactively new not

consider defense. rule cases II, Kleinbart Id. at 361. nal.” remand, On the trial court found that the if this case involves a “constitution- Even appellant’s rights it is adjudication, violated un- al in constitutional rule” der Brady by withholding quite thing say information and that the Su- a different him, Griffith, requiring preme materials but that this violation Court decision prejudicial require was not so to him as to application of constitution- retroactive new However, pro- cases, a trial. still new there are applied al should be rules to nonfinal ceedings рending ap- in the court on trial is to this case—which now before us ante, pellant’s insanity time, defense. See note the fifth all remand issues where insanity question been re- except the have him, against would be solved so that there date, years At late seven after re- this no trial on the unless so or- new merits mand, this court now returns this case to here, oc- dered and where his conviction trial,” “a trial court for some years ago, long curred some thirteen be- years appellant’s first twelve after fore of the rule our first announcement charged and some thirteen after the requirement relating jury selection took occurred, after these оffenses all vari- supra. in Robinson v. United place prior appeals procedural ous motions says have The majority been decided. this (to here The involved Kentucky, required under prospective Griffith during dire of bench U.S. L.Ed.2d 649 S.Ct. told, jurors) is a we are know we (1987). I do so. not think knowledge as a of common in the matter courthouse, rarely because that is invoked involved a case on direct review the bench inhi- presence defendant’s of a where the was wheth- conviction issue eliciting pro- from the bits candid answers apply retroactively er the court should a exercising spective jurors.2 Consequently, recently rule on the declared сonstitutional right (a) may viz., selection, preju- “constitutional” Batson v. matter of personal dicial to the defendant’s interest Kentucky, (b) may public inter- (1986).1 harmful Supreme The L.Ed.2d presence est since defendant’s apply newly decided that the “failure impartial thought impair declared rule to criminal selection of constitutional Supreme explained pending on direct review violates jury. cases Court has adjudica- juror process selection is basic norms “[t]he ” simply Griffith, supra, tion. importance, at 713 itself a matter of but the criminal to the (emphasis added). The adversaries Court went on to ” justice system. Press-Enterprise that, matter, Co. point prаctical out “[a]s pending Superior California, course, Court of we cannot hear each case 501, 819, 505, 821, ‍​​‌​​‌​‌‌​​​​​​​​​​​‌​‌‌​‌‌‌‌​​​​‌‌‌​​‌‌​​​‌​​‌‌‍apply on direct review and the rule. added). Thus, (1984) right responsibility by (emphasis

But this judicial we fulfill our instructing apply personal the the a mixture of the interest lower courts to involves jurors, you get Kentucky, supra, less candid is a case where the than answers Batson from prosecutor challenges peremptory they used the try this is man sit because the have and purpose preventing sitting of black from citizens judgment And I do like the in on. not defend- jury, on of the Fourteenth Amend- a violation accompany me on conferences ant to bench ment. throughout of the the course the and purely personal pref- for that is one of reason case, appellant experienced In counsel for this erence, personal selection. argument perceptions told the court oral added.) (Emphasis See also United States v. right present be about the of the defendant Washington, U.S.App.D.C. F.2d during jurors: prospective the voir dire of bench (1983) (where the observed that court my policy, my personal practice It's ... exercised”). "infrequently is jurisdic- I’ve tried over 300 cases in this long ago, life As Justice Holmes observed I do like the defendant to accom- tion ... experience. is We have the law here pany jurors me to voir dire with the because present experience on issue. is this [at bench] when the defendant public of a defendant interest. 89 L.Ed.2d (1986). why 43(a) This one reason Rule (extends further) as viewed “broader” than determining In whether the denial of a present. See, the constitutional to be request criminal defendant’s to be e.g., v.Welch United 466 A.2d conferences to hear and bench observe (D.C.1983) (protective 839 n. 7 scope of questioning prospective jurors dire voir 43(a) Rule far-reaching “more than the doubt, beyond was harmless a reasonable rights presence protected by the Consti- factors, this court has considered various tution”); Washington, supra, U.S.App. (1) including appellant’s the extent of exclu D.C. at 192-93 n. 705 F.2d at n. 5 (2) 497-98 jury process, sion from the selection (“protective scope 43(a) prospective of rule is broader jurors questioned by number of than rights ultimately jury the constitutional in voir dire who served on the embodied rule”). panel, whether the defendant had exhausted all of his strikes. sending In this case back for a new trial 835; Gary, supra, Young See 499 A.2d at after many years, all these it stands to v. United 290-91 that, reason probability, may all it not be (D.C.1984). case, In per this court “[t]he susceptible proof reality a matter of itself, questioning formed the [voir dire] witnesses, (missing problems, etc.) memory gave [standby and then time to counsel] prosecution may and the have to dis- appellant prospective relate to juror’s missed. if problems Even these do not answers ... there no [Furthermore] eventuate, appellant, ironically counsel for [placed] appellant” restrictions inhibit enough, has in effect told this court in oral ing his exercise of the defense strikes. argument that in all likelihood he would added.) fact, (Emphasis decid appellant against advise appearing at the remaining ed that the one perempto use of during bench voir dire for the reasons he ry challenge necessary. was not Klein gave Yet, supra court. Sеe note 2. II, supra, Only bart 426 A.2d at 349. specific exercise of this is the basis of questioned during three of the veniremen this court's remand. dire on the found sat appellant guilty Appellant The court now reverses con of murder. particular showing prejudice viction made no and remands for a new trial because stemming participation of these participate failure to at the bench dur jurors. three Young, See ing voir dire of prospective jurors ‘de at 290. prive^] proceeding of fundamental ” in process fairness’ violation of the due involving strikingly In cases similar clause of the Fifth Amendment. The ma facts, propriety addressed of the jority’s presumptivе analysis appears to procedure voir dire conducted trials com- relies, contravene the case law on which it rule an- menced the Robinson after for even if we conclude that the trial nounced, excluding the error of we found appellant’s request court’s denial of to be defendant from bench conferences at voir during at the bench a voir dire questioning beyond dire harmless questioning prospective jurors consti Gary, supra, 499 reasonable doubt. See tutes a violation of our mandate in Robin (only prospective jurors A.2d at 835 two Boone,3 appellant’s son and reversal of questioned actually at the bеnch served on Rather, conviction is not automatic. we panel, and defense counsel did not use one must determine whether such error was strike); 478 Young, supra, beyond “harmless a reasonable doubt” un (only portion A.2d at 290-91 limited of en- der the circumstances of this bench, case. Robin only tire voir dire was conducted at son, supra, (citations 448 A.2d at 856 prospective omit jurors questioned two so ted); States, Gary v. United 499 panel, A.2d and defense did served counsel 815, (D.C.1985) (en banc), denied, 835 peremptory challenge). cert. not use one See (D.C. 1984) (en banc). 3. Boone v. United 483 A.2d 1135 1244 Washington, supra, 227 U.S.App.D.C. beyond to a

also be found be harmless reason- 193, (limited portion F.2d at of at 705 498 doubt. able bench, jurors ques- voir dire at and the two evaluation, Notwithstanding this this actually at the bench served on tioned who may predictably utilized for the be questioned the were defense before prisoner that a who shows that proposition requested presence counsel at defendant’s deprived of the same is enti- he was bench).4 the by collateral attack. If af- tled to release case, In the trial of this there sever- years appeals thirteen ter these eyewitnesses appellant shoot al who saw procedural motions this defendant is to ob- kill his victim of 8th and at the corner appear there to a new would tain II, supra, Streets, M 426 N.W. Kleinbart distinguish in the future little reason to 346, “smoking gun” A.2d at 352. It is a fact, appeal re- direct and collateral appellant In contended between case. never 5 Rather, that he did commit the crime. view; change nor to consider the when accident, the self- he asserted defenses of his trial and occurred relation to law defense, or, Id. alternative, insanity. in the a the issue here involves “well- whether Yet, are at 349-52. thirteen later we See Yates v. process spring principle.” due requiring though there is no new trial Aiken, 211, 534, 538, 108 S.Ct. Con- miscarriage justice. indication of Francis v. (quoting L.Ed.2d 546 circumstances, sidering including all the Franklin, 326-27, 307, 105 S.Ct. the fact that witnesses observed (1985) (reaffirm- victim, and kill his must сon- shoot ‘we Montana, ing rule of Sandstrom v. possibility there clude that is no reasonable L.Ed.2d 39 99 S.Ct. U.S. way any the error contributed ” (1979)), in the presumptions held that Gary, supra, conviction.’ the Amend- criminal law violate Fourteenth (quoting Young, at 835 A.2d prove requirement State ment’s 291). strength of Comparing A.2d at beyond every a criminal offense element of government’s procedural case with the doubt). here, error error should which occurred a reasonable guishing demonstrated exercised all the bulk of voir dire was conducted at bench, of criminal convictions. 1376-77 Cf. widely. plish involving for through ever, ing fense burdensome explicit new trials however, collateral attaсk may The distinction Griffith, supra, dire at appropriately Beard v. treating half be more severe its recency (D.C.1988) (error direct “5-year more remote in purpose the criminal Thus, difficulties speed relationship that no reversals on would peremptory challenges). like actual appeals if bench, rule” for with which problems habeas cases the Court is far more may tend to be somewhat recent cases between Justice one presented jury panel questioned crime; when justice from collateral bear some rules direct alike, and defense would Justice White time, vintage. not harmless when example. precisely created White, direct review and thus, no means system only truly it could accom- cases by it appeal. than in cases underlying argue may to the extent a new trial relationship to conduct concerned I by by apply- progress assume, be that dissent, review stated: direct, distin- How- more vary of- by Allen v. for the dissenting) L.Ed.2d relevant distinction between collateral cases tucky Griffith, supra, aggregate dissenting). ure to retroactive. letter "S” than between cases on direct give token, isiana, supra, announces ing not countenance the latter defendants whose [Boston] ^[1065] Of raising does not logic collateral course, it full retroactive Hardy, 478 U.S. majority it would identify any truly review). when (emphasis retroactively (1986) (holding equally collateral it will Justice The 107 S.Ct. at 719 apply retroactively apply n. 1 challenges [Batson "fail[s] majority last indefensible. ‍​​‌​​‌​‌‌​​​​​​​​​​​‌​‌‌​‌‌‌‌​​​​‌‌‌​​‌‌​​​‌​​‌‌‍less burdensome [84 make White is added). [Batson challenges...." ^[51] less burdensome ] L.Ed.2d names appeal and cases rais effect; by relevant all cases that Batson v. Ken- makes the decision course, but its fail identify obviously ] 64 n. [this case] decided than to applicable n. 2 begin only 38] Shea v. Lou to cases on the rule it 1, 105 distinction (White, (White, any truly the same involving to cases with the Id.; would in the apply here, fully cf. J., J., underlying The rationale of (right appointed ap- counsel on direct Griffith that similarly defendants situated should peal applicable not in proceed- collateral be treated alike. The Court was consider- ings). ing a pending review,” on “direct and Yates, supra, 108 (emphasis S.Ct. at 537 this factor recurringly through- was stated supplied; omitted). citations This case is opinion. out its Griffith, supra, See actually not stage. direct review S.Ct. at 712-16. opinion, At the end of its reviews, This defendant had two direct the Court concluded that “a new rule for being last ago. some seven Klein prosecutions conduct of criminal is to II, supra, bart 426 A.2d 343. This case is applied retroactively to all cases ... analogous long ago to a defendant convict рending on yet direct review or not final.” ed, who attacks his conviction in a collat Thus, the Court one last time stated it was proceeding claiming eral under our applying this rule to “pending all cases decisions entered after his trial and direct added, direct course, review” and “or appeals, constitutional error was commit final,” yet believe, meaning, I cases not ted. majority here states that having stage reached as far as the of “di- error “cannot be harmless” “deprives as it review,” viz., rect cases in the stage. trial proceeding of fundamental fairness.” apparent It is that if a in defendant words, In other majority appears stage direct get benefits, review is to such saying, necessarily, defendant we have here who is still at preceding stage, “wellspring court fundamental yet process prin and has not due reached appellate stage, ciple.” Yates, should also supra, benefit. See 108 S.Ct. at 538. ed: Hardy, Batson does view), Desist retroactively to cases on collateral re L.Ed.2d 90 L.Ed.2d pending tant distinction between direct review [323], 107 ring we have L.Ed.2d 404 (1969)(Harlan, J., dissenting), States v. 708, 713 v. Kentucky, 479 [Mackey 682-87, S.Ct. lan’s retroactivity analysis Interestingly, Griffith, supra, We have already endorsed Justice Har Kentucky, [89 collateral review. v. United S.Ct. on direct 199] part [93 v. United on direct noted, Johnson, S.Ct. 73 L.Ed.2d Griffith, L.Ed.2d 69] apply (1986) 476 U.S. 79 (1969) (Harlan, J., (1986) as Justice Harlan review); U.S. retroactively to cases dissenting (holding that Batson appeal, Supreme 1160, 1174-77, ^[714] 649] 457 U.S. 537 [102 opinion subsequent supra, 479 U.S. at 106 S.Ct. 2878 [92 Compare 202] does not [314], 22 L.Ed.2d [106 (1987); (holding 401 U.S. see (1982), S.Ct. e.g., Court stat- 107 S.Ct. Allen v. concur part)]; impor Penn apply cases 248] opinion in this case and a new trial must did, 28 conviction would be entered. because there is a trial. this reversal. want the defendant to time he killed his ty. found to commence, assuming able to during any against the defendant’s self-interest. See mental condition Boone, supra, in the trial court where all that remains is a offense was clared to have been If he is declared to have been sane at the As test was it determination, somehow, of thе defendant’s sis Apparently, this case is relies appears discussed, supra, effectively But, And, note 2. produce upon, e.g., be not applied. then, along comes the court’s considers this declared voir dire of to conflict with the committed thirteen a final touch of told this court he would not Yet, sufficient evidence to guilty where a (sanity) victim, that is the sole basis of Robinson, counsel for insane, approach prospective jurors now at the reason of insani- majority’s analy prejudicial at the time the irony, he would be judgment If he is de- supra, and precedents years ago. the bench even if stage go error

sylvania Finley, persuasivе I do not see a case here for 1990, [1993, 95 L.Ed.2d ordering a new trial. I would conclude the 537] belatedly discovered error was harmless

beyond a reasonable doubt. & TRANSFER GREENWOOD’S CO., INC.,

STORAGE Petitioner, DEPART- OF COLUMBIA DISTRICT MENT OF EMPLOYMENT SERVICES, Respondent. No. 87-1349. Appeals. District of Columbia Court of Jr., F.G., Appellant. In the Matter Jan. 1989. Submitted No. 85-1265. Feb. Decided of Appeals. District of Columbia

Feb. Judge, ROGERS,

Before Chief *,

MACK, *, FERREN NEWMAN *,

BELSON, TERRY, STEADMAN **, Judges. Associate

SCHWELB

ORDER

PER CURIAM. appearing above-entitled case ‍​​‌​​‌​‌‌​​​​​​​​​​​‌​‌‌​‌‌‌‌​​​​‌‌‌​​‌‌​​​‌​​‌‌‍It that the * argued on rehear-

was before the division

ing, and that the en banc court subse- voted,

quently this sponte, sua rehear banc, it is

case en opinion judg-

ORDERED that herein filed on November

ment vacated, hereby and it is

are ORDERED that Clerk

FURTHER argument this for be-

shall schedule sitting court en banc soon as

fore the are permits. Counsel directed

the calendar copies ten the briefs hereto- provide before filed to the Clerk or Febru- fore on Evans, A. Dorsey with whom David Nes- 27, 1989. ary D.C., telbaum, Washington, on the

brief, petitioner. for n McDonald, Counsel, Corp. Susan S. Asst. Jr., Cooke, Corp. with whom Frederick D. Reischel, Deputy Corp. L. Counsel, Charles Counsel, Prager, Lutz Alexander Asst. Counsel, Washington, D.C., Deputy Corp. brief, respondent. ** Judge case. has recused himself Schwelb Associate

Case Details

Case Name: Kleinbart v. United States

Court Name: District of Columbia Court of Appeals

Date Published: Feb 15, 1989

Citation: 553 A.2d 1236

Docket Number: 11932

Court Abbreviation: D.C.