Petitioners Supplemental Brief — Maxwell v. Bishop

Supreme Court brief1970

Ask Donna

What actually matters in this document.

Text

Office Supreme

oO 1,

In THE

Supreme Court of the United

"earn

wu ye oe

Court, U.S.

G :

HN F. DAVIS, CLERK.

Octoser TERM, 1969 waa

No. 13

3 | : ¥

Wim L. MaxweEL., site

Petitioner,

ee i ee

O. E. Bisnor, Superintendent of

_ Arkansas State Penitentiary, | a

er Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS

f FOR THE EIGHTH CIRCUIT

NOON-EOR“bEAME LO. FILE-SURREBMENT AE

BRILE-AND-SUPPLEMENTAL BRIEF

FOR PETITIONER

JACK GREENBERG

James M. Nasrit, IIT

Norman C. AMAKER

MicHaEL MELTSNER

JacK HIMMELSTEIN

EvizaBeTH DuBois

10 Columbus Circle _

New York, New York 10019

Grorce Howargp, Jr.

32914 Main Street

‘Pine Bluff, Arkansas 71601

8 AntTHony G. AMSTERDAM

Stanford -University Law School

Stanford, California 94305

Attorneys for Petitioner |

INDEX

Motion for Leave to File Supplemental I desinancinbess

Supplemental Brief for Petitioner

I. Petitioner’ s Death Sentence Is Invalid Under

Witherspoon

A. Facts Relevant to the Witherspoon Issue ......

B. Application of the Witherspoon Rule to This

Record ...... :

IL. This Court Cannot Properly Affirm the Decision

Below, Which Would Send Petitioner to His

Death Pursuant to the Verdict of an ‘ Unconstitu-

. tionally Selected Jury .. J. :

;

Ill. The Court Should Not, by Reason of. Wither-

spoon’s Supervention, Refuse to Decide the Issues

Upon Which It Has Granted Certiorari Here ....

ConcLUsION

APPENDIX A

Voir Dire Examination of Seven Veniremen. Ex-

cused for Opposition to the Death Penalty. -......:...

‘ \- : > .

APPENDIX B

_ Voir Diré Examination of Venireman Rephan ......

wae

‘S Pack

Aprenpix C.

| Preatment of W itherspoon v. Minois by the Lower

Courts , a Re

A. Decisions setting ite death sentences cnlie Sa

B.’ Decisions refusing to set asidp death sen.

tences om eerorcaseseeeeseeseres deeecess fevercereees eececce GP oceeeseceees lla .

Doctrines distinguishing or “construing”

ee, I pciilesipieeiininttianplasitan 12a

2. Methods of interpreting a voir dire tran-

seript so as to avoid Witherspoon ............ Ida

3. Methods of avoiding Withérspoon where

_ jurors were unmistakably excluded in vio-

lation of the rule of that decision ......... ba

4. Decisions, articulating relatively unim-

peachable Witherspoon standards but

manifestly misapplying them 0... lia

| Re » 18a

Tas.e or Aurionrrins

Cases:

Aaron vy. State, 283 Ala. 52, 214 So, 2d 827 (1968)... Ils

Abram v vy. State, 216 So. 2d 498 (Fla. Dist. Ct. App.

a 1a

Adderly v. Wainwright, M.D. Fla, No. 67-298. Ciy-J a

Aikens y. California, 0. 'T. 1969, No. 364 Mise. <....... @

Alexandér vy. State, —— Ga. ——, 168 S/K. 2d 35 *

(1969) . ae ne . a

Anderson ob ab. v. California, 0. ”. 1969, No. oo Mise. ra

* 30,98

PAGE

Arkwright v. Smith, 224 Ga. 764, 164 S.1 2d-796—

|” | cae LE Ne ok se lla

: 4S

Baker v. State, 2: 295 So, 2t 327 (Fla. 1969) ............. Meena:

Rell v; Patterson, 402 F. 2d 394 (10th Cir. 1968) ...32, 12a,

: " a

Bell vy. Patterson,.O. ‘T. 1969, No. 32 Mise. ..<............... 30

Boulden v. Holman, 394 U.S. 478 (1969) ..2....3, 13, 14, 16,18,

; | : 19, 20, 22, 23,

' 25, 27, 28

Boykin v. Alabama, 395 U. s. 238 CUNO D icinscicsinmmevesidons 30

Brent v. White, 19th Judicial Distriet Ct, of La., Crim.

-Div., No. 47,265, decided July 31, 1969 ................... 8a, 12a

Brent v. White, 398 F. 2d 503 (Sth Cir, 1968). ................ 8a

Campbell v. State, Fla. Sup. Ct., No. 35,622, decided

ER ER Re as. ee ae te OEE ee 13a, 16a

Carafas vy. LaVallee, 391 U.S. 284 (1968) ....0ccccc0--..-27, 28

Childs’ v. North Carolina, O. 1. 1969, No. 25 Mise. ...... 29

Craig v. State, 179 So. 2d 202 (Fla. 1965) .....W...... 32

Davis'v. State, Ark. —-, 440 S.W. 2d 244 (1969) . 13a

Dixon v. State, 224 Ga. 636, 163 S.K. 2d 737 (1968) ... 10a

Duisen vy. State, 441 S.W. 2d 688 (Mo. | eee 32, 17a

‘ Ellison v. State, 432 S.W. vil 955 (Tex. Cr. App..1968) 1la

Evatis v, State, 430 S.W. 2d 502 (Tex. Cr. App. 1968) .. lla

Ey Parte Bryan, 434 S.W. 2d 123 (Tex. Cr. App. 1968) lla

Forcella and Funicello vy. New Jersey, O. T. 1969, No.

NE aA Re aE MSc em om ene hoes 29, 33, 9a

Purman vy. Georgia, O. T. 1969, No. 645° Mise. ............ 30

Furman vy, State, —— Ga. ——-, 167 S.E. 2d 628 (1969) 17a

6 7 si

Garrison v. Patterson, 405 F. 2d 696 (100 Cir. 1969) ..

Hill v. California, O.T. 1969, No. 895 Mise: .................. 8

Hill et al. v. Nelson, N.D. Cal., No. 47318 20000000. 30 -

Howard v. State, —— Nev. ——, 446 P. 2d 163 (1968)

. 32, 12a

Hunter v. State, —— Tenn. ——, “440 S.W. 2d 1 (1969) 32.

Hurst v. Illinois, O.T. 1969, No. 652 —

_ In re Anderson and Saterfield,.69 Cal. 2d 613, 73 Cal.

Rptr. 21, 446 P. 2d 117 (1968) 31, 9a, 16a, 17a

In re Eli, 71 Adv. Cal. 227, 77-Cal. Rptr. 7, 454 P. 2d

337 (1969) : oe 10a

In re Hillery, 71 Adv. Cal. 896, —— Cal: Rptr. —-,

mm P, 2d ——— (1969) on eneeeeccncernnencegpecececsnenensecerenee lla

In re Mathis, 70 Adv. Cal. 501, 74 Cal. Rptr. 914, 450

acer etestccinctmeneenpecccens 10a .

‘ In re Seiterle, 71 Adv. Cal. 722, 78 Cal: Rptr. 857, 456

EST EEE ee a 10a

Irving v. Bredzeale, 402 F. 2d 231 (5th Cir. 1968) ........ Ba

Jaggers v. Commonwealth, 439 S.W. 2d 580 (Ky. 1968)

_ 12a, 14a

Jaggers v. Kentucky, O.T. 1969, No. 722 Mise. ............ 30

Janovie v.-Eyaman, O0.T. 1969, No. 112 Mise. ............... 29

Jones v. State, 224 Ga. 782, 164 S.E. 2d 831 (1968) .. lla

Koonce v. State, Okla. Ct. Crim. App., No. A-14826,

decided May 21, 1969 . +L Sans seeeeeA 2a, 13a, 158

Kruchten v. Eyman, O.T. 1969, No. 297 Mise. -..2........... 30

Lokos v. State, —— Ala. ——, 221 So. 2d 689 (1969) .. 3

P 7) | : . PAGE

Massey v. California, O.T. 1969, No. 309 Mise. ............ ‘ 30

Massey v. Smith, 224 Ga. 721, 164 S.E. 2d 786 (1968) .. 10a

Mathis v. New Jersey, O.'B. 1968, No. 12.Mise. 00000. iy -

Mathis v. State, Ala. —, 216 So. 2d 286 (1968) .. 31

MeCants v. State, —— Ala. ——, 211 So. 2d 877 (1968) 31

MeCancs v. Alabama, O.T. 1969, No. 16 Mise. .....:.......... . 29

Miller v. State, 224 Ga. 627, 163 S.E. 2d 730 (1968) ..32, 9a,

10a, 16a

Morford v. Hocker, 0.7. 1969, No. 239 Mise. ..........:..... 29

O'Connor v. - Ohio, 385 US. 92 (1966) ........... 24

Peyton v. Rowe, 391 U.S. 54 (1968) 2.0000... 27

People 'v. Bievelman, 70 Ady. Cal. 37, 73 Cal. Rptr. 521,

Se Tn Re GD eirenticretinneinsipcinnncimmbicnnias 17a

People v. Bradford, 70 Ad¥. Cal. 347, 74 Cal. Rptr. 726,

ee FR RE Aner ey oben temo 9a

People v. Chacon, —— Cal. 24 ——, 73 Cal. Rptr. 10,

Cg Oe: nea re eee ee ren Marine ida

People v. Coogler, 71 Adv. Cal. 165, 77 Cal. Rptr. 790,

i Oe I 0 I aesccnedaconsecednndnicihienmtalliahaiendoanhoanentogon 18a

People v. Dyrham, 70 Adv. Cal. 179, 74 Cal. Rptr. 262,

gh 8g AA ene teers ta 17a, 18a

People ¥. Fain, 70 Adv. Cal. 625, 75 Cal. Rptr. 633,

Fk ef Re | a en ene 10a, 16a

People v. Gardner, 71 Adv. Cal. 882, —— Cal. Rptr.

ae, ey | ne a 10a

Penis. v. Goodridge, 70 Adv. Cal. 878,, 16 Cal. ptr.

ee ea, oma 10a

People v. Hill, 70 Ady. Cal. 723, 76 Cal. Rptr. 225,

$52 P. 2d 329 eae recsengesencsscezescesense 188

vi *

PAGE

People v. Ketchel, 71 Adv. Cal. 659, 79 Cal. Rptr. 92,

456 P. 2d 660 (1969) ...... . 10a

People.v. Mabry, 71 Adv. Cal. 448, 78 Cal. Rptr. 655,

455 P. 2d 759 (1969) : 18a

People v. Mallett, —— Ill, 2d ——, 244 N.E. 9d 129 :

(1969) .. ...12a, 14a, l6a -

People v. McGuatha and Wilkinson, 70 Adv. Cal. 823,

76 Cal. Rptr. 434, 452 P. 2d 650 (1969) 00. 18a

People v. Miller, 71 Adv. Cal. 477, 78 Cal. Rptr. 449,

455 P. 2d 377 (1969) . 18a

People v. Moore, 42 Ill. 2d 73, 246 N.E. 2d 299 (1969)

12a, 164

People v. Morse, 70 Adv. Cal. 762, 76 Cal. Rptr. 391,

452 P. 2d 607 (1969) Liiasheepedapaiieagieneiieks 10a

People v. Nye,.71 Adv. Cal. 376, 78 Cal. Rptr. 467,

455 P, 2d 395 (1969) ssisaidettaigthaleeeinihadinadenauaiinas ‘18a

People v. O’Brien, 71 Adv. Cal. 415, 78 Cal. Rptr. 202,

455 P. 2d 138 (1969) .......... 10a

People v. Osuna and Gorman, 70 Adv. Cal. Sil, 76 Cal.

Rptr. 462, 452 P. 2d 678 (1969) | 2222......ccccececeneceveses 10a, 14a

People v. Pike, 71 Adv. Cal. 617, 78-Cal. Rptr. 672,

" 5, Bi. gene er eo oe 18a

People v. Quicke, 71 Adv. Cal. 521, 78 Cal. Rptr. 688,

455 P. 2d 787 (1969) sisuspeiaetsipllldaubddatpeteeitisadbeniaten 10a

People v. Risenhoover, 70 Adv. Cal. 15, 73 Cal. Rptr.

553, 447 P. 2d 925 (1968) . on

People v. Schader, 71 Adv. Cal. 797, —— Cal. Rptr.

. fe __) ree ee Senn nO eee 10a

People v. Sears, 70 Adv. Cal. 485, 74 Cal. Rptr. 872,

450 P. 2d 248 (1969) .... veeseeeeed OA, 16a, 174

' PAGE

eople v. Speck, 41 Ill. 2d 177, 242 N.E. 2d 208 (1968)

21, 12a, 15a, 16a

eople v. Stanworth, 71 Adv. Cal. 858, —— Cal. Rptr.

sictsinny P. 2d 1 Sane 10a

sople v. Teale, 70 Adv. Cal. 532, 75 Cal. Rptr. 172,.

450 P. 2d 564 (1969) ......:. 10a

ople v. Tolbert, 70 Adv. Cal. 844, 76 Cal. Rptr. 445,

452 P. 2d 661 (1969) ...... 9a, 18a

eople v. Varnum, 70 Adv. Cal. 514, 75 Cal. Rptr. 161,

450 P. 2d 533 (1969) Lda, 18a

eople.v. Vaughn, 71 Adv. Cal. 423, 78 Cal. = 186

GBD PB AS CD ccececbeicapltsecs .. 10a

eople v. Williams, 71 Adv. Cal. 637, 79 Cal. Rptr. 65,

MG P. Da GBB (1DGD)~ cceccccccasticcccecnctense i5, 10a

iecott v. State, 116 So. 2d 626 (Fit. 1950) ficecococacerscte 12a

ittman v. State, 434 S.W. 2d 352 (Tex. Cr. App.

19GB) .n-.nccscocrocoresoncrcecsresciqenersbassonsensosins Se 13a, 14a, 15a, 17a

itts v. State, 185 So. 2d 164 (Fla. 1966) 2.000200... coe 120

owers v. Hauck, 399 F. 2d 322 (5th Cir, 1968) ............ 8a

uintana v. State, 441 S.W. 2d 191 (Tex. Cr. App.

UPD. ccicparedacintceicsst heeempsccamtaabanesoaiads addy 188

uintana v. “Texas, O.T. 1969, No. 910 Mise. .................. 30

eeves y. California, O.T. 1969, No. 257 Mise. ............ 30

ideau v. White, E.D. La., Baton Rouge Div., Mise.

No. 970, decided May 12, 1969 .. 8a

obinson v. California, O.T. 1969, No. 481 Mise. ............ 30

ogers v. Richmond, 365 U.S. 534 (1961) ....-..cccccssececeee 18

ouse v. State,

Miss. ——, 222 So. 2d 145 (1969) “ae

eott v. State, 434 S.W. 2d 678 (Tex. Cr. App.

1968) o..aesesoooe jciesshaingt Binciauamapicaiaceete aed 16a, 17a

PAGE

_ Segura v. Patterocn, 402 F. 2d 249 (10th Cir. 1968) ......

r 14a, * |

Sisees v. Patterson, O.T. 1969, No. 76 Mise. ’

Shinall v. Breazeale, 404 F. 2d 785 (5th Cir. 1968) ..

Sims v. Eyman, 405 F. 2d 439 (9th Cir. 1969) 0... 30, 2

Sims v. Eyman, O.T. 1969, No, 38 Mise. -.......--------ecoee 29

Sims v. State, 184 So. 2d 217 (Fla. Dist. Ct. App. 1966) 12a

Smith v. Nelson, O.T. 1969, No. 242 Mise. 30

Smith v. State, 437 S.W. 2d 835 (Tex. Cr. App.

1968) ............. 32, 14a

Smith and Bigsioe v. Washington, O.T. 1969, No. 113

Se deities ackaihecsmnickiel k 30) .

. Spencer v. Beto, 398 F. 2d 500 (5th Cir. 1968) ................ =

Spillers v. State, —— Nev. ——, 436 P. 2d 18 (1968)

State v. Aiken, —— Wash. 2d —., 452 P. oi he

Ae ER SORE 5 RO lba |

State v. Atkinson, —— N.C. ——, 167 S.E. 2d 241

(1968) ....... aula AAIaLni eGlastaiaibhcsse:dismiitandchbsiountciaahalioniioneoonenteidodiaes 13a, 17a

State v. Benjamin, 222 So. 2d 853 (La. 1969) -............... lla

State v. Crampton, 18 Ohio St. 2d 182, 248 N.E. 2d |

614 (1969) ...... 5 Na en aN “é 32, 18a

State v. Crook, 221 So. 2d 473 (La. RAR 17a

State v. Forcella, 52 N.J. 263, 245 A. 2d 181 (1968) . 32, 14a,

15a, 17a

State v. Hudson, 221 So. 2d 484 (La. 1969) 02.0.0... 18a

State v. Mathis, 52 N.J. 238, 245 A. 2d 20 (1968) ....12a, 13a,

15a, 16a

State v. Peele, 274 N.C. 106, 161 S:E. 2d 568

SES ZI CPR Ie Oe 14a, 16a

State v. Pruett, 18 Ohio St. od 167, 248 N.E. 2d 605

. (1969) AE REE © ial ol SLUR AIR eo ROS CO OTE 14a

Arl

"PAGE

ate Vv. - Smith, —- baie 2d ——, 446 P. 2d 571

COI) caesictesicccrcenensnisimepiciranntnsiitendseesinnimsbioctentmtnaniinaton ---.d2, 18a

ate v. Spence, 274 N .C. 536, 164 S.FE. 2d 593 (1968) .... lla

ate v. Turner, 220 So. 2d 67 (La. 1969) _.........: Bede lla

ate.v. Wigglesworth, 18 Ohio’ St. 2d 171, 248 N.E..2d

Be ROI > sisscitcocielaiiecpisptinpcanehcmepneneieoiannet ieenaei csadabsesaipied 15a, a

tate vy. Williams, 50 Nev. 271, 257 Pac. 619 (1927) ..

wain v. Alabama, 380 U.S. 202 (1965) -.....02222.2...222...20. eee

olbert v. California, O.T. 1969, No. 596 Mise. ............ 30

amnum v. California, O.T. 1969, No. 332 Mise. ........... 30

eney v. State, 251 Md. 182, 246 A. 2d 568 (1968) °..14a, 17a

‘alker v. State, Nev. ——, 455 P. 2d -34

ICRA rea es AR ialehicidetaeptieteublidiczod 13a, 18a

heat and Aiken v. Washington, O.T. 1969, No, 783

i ART OLD LAPT ED) Ct PARP OEE LORETO bed

yhisman v. State, 224 Gia. 793, 164 S.E. od 719 (1968) ..

illiams v. Dutton, 400 F. 2d 797 (5th Cir. 1968) ........ =

‘illiams v. Smith, 224 Ga. 800, 164 S$... 2d 798 (1968) .. lla

illiams v. State, Fla. Sup. Ct. No. 37, 316, decided

April iy | MIEIE ach tesuscuctainsdepicsedkcgteiaulissuameaencaaaiies 12a, 13a —

rilson'v. State, 225 So. 2d 321 (Fla. 1969) ........ 31, 12a, 17a

‘itherspoon v. Illinois, 391 U.S. 510 (1968) ....3, 5, 6, 12, 13,

14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 25,

26, 27, 28, 29, 31, 32, 33, 34, 8a, 9a,

lla, 12a, 13a, 14a, 15a, 17a, 18a

‘

tatutes: - \

tk. Stat. Ann. 643-1921 (1964 Repl. vol.) cscs 7

rk. Stat. Ann. §43-1922 (1964 Repl. vol.) 0. 7

7 In SHE . |

Supreme Court of the United States

Ocroser TERM, 1969

- No. 13

Wiuiam L. MaxweE i,

= Petitioner,

—Vv.— ;

0. E. BisHop, Superintendent a

Arkansas State Penitentiary,

~ Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

— >a

- Motion for Leave to File Supplemental Brief

Pursuant to Rule 41 (5), (6) of this Court, petitioner

Maxwell -respectfully asks special leave to file the ap-

pended Supplemental Brief. |

Certiorari was granted in this case on December 16, 1968,

limited to two questions :? :

- “2. Whether Arkansas’ practice of permitting the

trial jury absolute diseretion, uncontrolled by stand-

These were questions 2 and 3 of the Petition for a Writ of

Certiorari. By a separate motion filed contemporaneously with the

present one, petitioner is requesting that the Court enlarge the

scope of its grant of certiorari to include consideration also of

Question 1 of the Petition, relating to petitioner’s claim that Ar-

kansas juries have discriminated on grounds of race in exercising

ne to sentence men convicted of the crime of rape to

ards or directions of any kind, to impose the death

' penalty violates the Due Process Clause of the Four-

teenth Amendment? ee :

“3. Whether Arkansas’ single-verdict procedure, .

which requires the jury to determine guilt and pun.’

ishment simultaneously and a defendant to choose be-

tween presenting mitigating evidence on the punish-

' ment issue or, maintaining his privilege against -self-

incrimination on the guilt issue, violates the Fifth and

Fourteenth Amendments?” bine o

The case was argued on March 3 and 4; 1969, by counsel

for petitioner, for respondent, and for. the State of Cali-

fornia as amicus curiae. California urged orally (as it

had previously in its brief amicus curiae) that the issues

on which certiorari had been granted ought not to be de-

cided. Rather it contended that the case should be disposed

of (if the facts warranted) upon the ground that the jury

which: condemned petitioner to die had been selected in

violation of the retroactive ruling in Witherspoon v.. Il-

linois, 391 U.S. 510 (1968). The Court requested and re-

‘ceived, without objection of the parties, a transcript of peti-

tioner’s trial that included the voir ‘dire examination of

| prospective jurors.

At the argument on March 4, ‘eeiisiiaaes took the posi-

tion that this Court should not refuse to decide the issues

‘on which it had granted certiorari, and which remained

squarely and properly presented by this case, simply be-

cause petitioner’s death sentence might also be invalid un-

der Witherspoon. Those issues remained vital to petitioner

and to hundreds of other death-sentenced men across the

Nation, he argued, even though petitioner’s present sen-

I ¢ 2

tence to death by electrocution should: be set aside by force |

of the en rule. ,

‘On May 26, 1969, this. Court ordered the case restored

to the calendar for reargument on October 18, 1969.

_ Events since the first argument of this case in March

of 1969 seem to us relevant to this, Court’s appreciation

of the proper place of the Witherspoon issue in the pres-

ent litigation.. It is the purpose of petitioner’s Supple-

mental Brief to discuss the in¥Yplications of those events,

which include this Court’s decision of Boulden v: Holman, —

394 U.S. 478, on April 2, 1969, and numerous. opinions

of state and lower federal courts rendered or reported .

since. March of 1969, considering Witherspoon and the

other issues —- by petitioner’s Petition for Cer-

tiorari. *

We have aici the sreparation of this Supplemental

Brief until September in gggler to permit inclusion in it of

references to as many relevant 1969 state and lower fed-

eral decisions as could be found. We seek to file it at this”

time'so that respondent and the amicus curiae may have >

a month within which to reply prior to reargument. For

these reasons, we now request leave of the.Court to file the

appended Supplemental Brief.

».

ln THE

Supreme Court of the United States

Ocrosen Team, 1969

No. 13

Witniam L. Maxweu,

Petitioner,

> —VvV —

©. K. Bisnor, Superintendent of

Arkansas State l’rison,

Respondent.

1S WRIT OF CERTIONARL TO THE UNITED STATES COURT OF APPEALS

YOR THE HIGHTH CIRCUIT

SUPPLEMENTAL BRIEF FOR PETITIONER

Petitioner contends herem -that his death sentence is

mstitutionally: invalid under Witherspoon v. Illinois, 391

(. S. 510 (1968). (Part |, infra.) For this. reason, the

wigment below, which denies him the last available judi-

fal relief against the execution of that sentence by electro-

ation, cannot properly be affirmed by this Court. (Part

Il, infra.) However, the invalidity of petitioner's sentence

wuler Witherspoon does not require the Court—and

should not persuade the Court—to decline to consider peti-

toners other challenges to the Arkansas capital sentenc-

ing procedure which has authorized his imprisonment under

an Unconstitutional sentence of death for more than seven

years amd to which he will be subjected, again unconstitu-

6 ,

tionally, on any retrial oceasioned by a Witherspoon dis.

position’ here. Those other challenges are not rendered

moot by Witherspoon; and their determination by this

Court is, if possible, more important to the proper and

constitutional administration of justice in capital cases

today than ‘it was when the Court first agreed to consider |

petitioner’s claims on certiorari in December, 1968. (Part |

III, infra.)

Petitioner’s Death Sentence Is Invalid Under Wither.

spoon, | Ne

A. Facts Relevant to the Witherspoon Issue

Fifty-five veniremen were examined in the course of:

‘selecting the twelve jurors who sentenced petitioner to die.’

Of the 43 veniremen excused from service’ on the jury, 12

werd excused on peremptory challenge by the defense,’ 7

were challenged peremptorily by the prosecution,‘ 17 were

* Two panels of veniremen were called: the regular panel, having

31 veniremen, and a special panel of 33 (18 of whom had previously

been qualified and 15 of whom had not). Of, the 64 veniremen thus

brought into the courtroom, 55 were interrogated and excused or

passed on the voir dire before the process of selecting a jury was

completed. Tr. 108-238; see particularly Tr. 108-109. [Tr:

here and hereafter refers to the transcript of petitioner's trial in

the Circuit Court of Garland County, Arkansas, March 19-April 5.

1962, which is included in and paginated as a part of the record

on petitioner's direct appeal to the Arkansas Supreme Court, Crim

nal No. 5057, handed up to this Court on the first argument of the

case here, March 4, 1969.]

* Veniremen Groom (Tr. 124), MeClard (Tr.. 153), Madden (Tr.

170), Johnson (Tr. 170), Maddox (Tr. 170), Thomas (Tr. 170),

Bledsoe (Tr. 199), Rephan (Tr: 205), Raymond (Tr. 205), Lowres

(Tr. 209), Miller (Tr. 220), Gibbs (Tr. 230).

* Veniremen Graham (Tr. 136), Ross (Tr. 154), Cheatham (Tr

rg Wesson (Tr. 195), King (Tr. 201), Thomas (Tr. 214), Quine

(Tr. 226).

d for cause by the court on grounds other than op-

m to capital punishment,’ and 7 were excused for

by the court becausé of their opposition to capital

ment.* (The defense thus exhausted all twelve of the

ptory challenges allowed it under Arkansas proce-

Ark Stat. Ann. §43-1922 (1964 Repl, vol.) ; see Tr.

hile the prosecution failed to use only three of its

ble ten peremptories, Ark. Stat. Ann. §43-1921 (1964

vol.).”)

iry on the voir dire concerning the veniremen’s at-

; toward capital punishment was ordinarily made by

osecntor. The questions he asked varied somewhat

enireman to venireman. But, whenever any answer

ting any sort or degree of opposition to the death

vy was received, the prosecutor made his challenge

use Which was thereupon granted by the Court with-

rther inquiry.

relevant portions of. the voir ‘dire examination of

yen jurors excused for opposition to the death penalty

t out in Appendix A to this brief. We summarize

ere :

liremen Wafford (Tr. 111), Rather (Tr. 113), Caleote (Tr.

1}, Elliott (Tr. 114-115), Lowrey (Tr. 115), Rhiddlehoover

15-116), Reed (Tr. 131), Buchannan (Tr. 132), Rainwater

4), Rowell (Tr. 155), Weston (Tr. 162), Dean (Tr. 162),

‘Tr. 164), Green (Tr. 179-180), Robertson (Tr. 205), Jackson

7), Douglas (Tr. 223).

liremen McCleary (Tr. 117), Wade (Tr. 159), Hagy (Tr.

troupe (Tr. 171), Breland (Tr. 178-179), Adams (Tr.181), -

ms (Tr. 195-196). 3

» prosecutor's use of peremptories followed the common

1: of the seven veniremen lie excused (note 4, supra) six

‘egro (invariably after only cursory questioning, except

pursuit of a possible ground of challenge for cause seemed

lo save him use of a peremptoty) and one was a white man

Tr. 154), whose half-brother appears to have had some sort

in with the prosecutor.

(1) Venireman McCleary: After the court had ques.

tioned the first box of twelve veniremen on subjects other

than capital punishment and had excused several for cause,

the prosecutor was invited to inquire. He asked the first

remaining venireman, Mr. Kimball, “if the evidence con-

vinced you beyond a reasonable doubt at the conclusion of

this trial that the defendant was guilty, that you thought

a death sentence was justified, do you have any conscien-

tious scruples that prevent your imposing such a sen-

tence?” Mr.. Kimball said no. The prosecutor then asked

Mrs. Kanada “if you were convinced beyond a reasonable

doubt at the conclusion of this trial that the defendant was

guilty, that you thought a death sentence was justified,

would you have any conscientious scruples about imposing

the death sentence [emphasis acdded]?” Mrs. Kanada said

no. The prosecutor pursued:

“Q. Mr. Groom, you have heard the question I just

asked, do you entertain any such conscientious scruples

against the death sentence [emphasis added)?”

“A. No.

“Q. Mr. Martin, do you entertain any such scruples!

“A. No. .

_“Q. Mr. Beavers?

“A. No, not at this point?

“Q. Do you entertain any conscientious scruples

about imposing 8 death penlaty [sic] [emphasis

added)?” \

“A. No.

“Q. Mr. Rima?

“A. No.

“Q. Mr. MeCleary?

“A. Yes, I am afraid I do.

“Q. I submit, your Honor, that Mr. McCleary should

be excused.

‘

“THE COURT: Alright, [sic] Mr. McCleary. —

“LET THE RECORD SHOW 1 EXCUSED,

AGAINST DEATH SENTENCE.” (‘Tr. 116-117.)

(2) Venireman Wade: The prosecutor inquired:

“Q. Mrs. Wade, if you were convinced .beyond a

reasonable doubt of the guilt of the defendant and you

felt the crime he committed was proved beyond a rea-

sonable doubt and was so abhorrent as to justify the

death penalty would you have any conscientious

scruples against the death penalty?

“A. I] would not sentence the death penalty. .

“MR. WHITTINGTON: I submit, your Honor,

‘that Mrs. Wade should be excused.

“LET THE RECORD SHOW MRS. WADE EX-

CUSED, DOES NOT BELIEVE IN THE DEATH

PENALTY.” (Tr. 159.)

(3) Venireman Hagy: The progecutor asked:

“Q. Mrs. Hagy, if you were convinced beyond a rea-

sonable doubt of the guilt of the defendant and you

- thought that this crime was so abhorrent as to justify

the death penalty would you entertain. any conscien-

tious scruples about inflicting the death sentence?”

“A. I don’t believe in capitol [sic] punishment.

“Q. You do not believe you could return a verdict of

eapitol [sic] punishment?

“A. No sir, I don’t believe in capitol [sic] punish-

ment.

“THE COURT: You will be excused. ;

“LET THE RECORD SHOW MRS. HAGEY [sic]

EXCUSED, DOES NOT BELIEVE IN CAPTSOL

[sic] PUNISHMENT.” (Tr. 160.)

(4) Venireman Stroupe: The prosecutor asked:

“Q. If you were convinced beyond ‘a reasonable .

doubt at the end of this trial that the defendant was

guilty and that his actions had heen so shocking that

_ they would merit the death penalty do you have any

- conscientious scruples about capitol [sic] punishment

‘that might prevent you from returning such a verdict

[emphasis added}?

“A. I think I do [emphasis added}.

“MR. WHITTINGTON: I submit, your Honor,

that the juror should be excused.

“THE COURT: You may be excused.

“LET THE RECORD SHOW MRS. STROUPE

EXCUSED, AGAINST THE DEATH PENALTY.”

(Tr. 171.)

(5) Venireman Breland: The prosecutor asked:

“Q. Mrs. Breland, if you were convinced that the de-

fendant was guilty beyond a reasonable doubt at the

end of this trial and that his actions -had been so

shocking and abhorent [sic] as to warrant the death

penalty do you have any feelings about capitol [sic] |

punishment to prevent your returning such a verdict

[emphasis added]?

“A. Yes, I think I do [emphasis added}.

“MR. WHITTINGTON: I submit, your Honor,

that Mrs. Breland be excused.

“THE COURT: You may be excused.

“LET THE RECORD SHOW MRS. BRELAND

EXCUSED, DOES NOT BELIEVE IN CAPITOL

[sic] PUNISHMENT.” (Tr. 178-179.)

It is i,

these sey

Venirem:

Rephan j

would inj

Stand, 7"

and three

the jury

enireman Adams: The prosecutor ‘asked:

). Mr. Adams, do [you] have any feeling concern-

capitol [sic] punishment that would prevent you

vake you have any feelings about returning a death

ence it you felt beyond a reasonable doubt that the

ndant was guilty and that his crime was so bad as

ierit the death sentence [emphasis added]?

A. No, I don’t believe in capitol [sic] punishment.

“THE COURT: You will be excused Mr. Adams.

“LET THE RECORD SHOW MR. ADAMS

XCUSED, DOES NOT BELIEVE IN CAPITOL

sic] PUNISHMENT.” (Tr. 181.)

enireman McAdams: The prosecutor asked:

). Mr. McAdams, do you have any conscientious

iples against capitol [sic] punishment?

A. I don’t have scruples, I have convictions.

Q. What are they? A. 1 am against capitol [sic]

ishment. i

“THE COURT: You will be exeused, Mr. Me-

dams. : |

“LET THE RECORD SHOW MR. McADAMS

XCUSED, AGAINST CAPITOL [sic] PUNISH-

LENT.” (Tr. 195-196.)

instructive to compare the summary dismissal of

ven prospective jurors with the interrogation of

ian Rephan, set out in Appendix B, efra. Mr.

indicated some uncertainty when asked whether he

nfer guilt from the defendant’s failure to take the

‘hereafter ‘he was informed once by the prosecutor

ee times by the court that the court would instruct

y that it could not hold against the defendant his

‘ 12

failure to take the stand; and the court pressed the specific

inquiry: “would you substitute your feelings and your

opinion for the instruction of the Court or would you be

guided by the Instructions of the Court?” (Tr 168.) “In

other words, you would not substitute your opinion or feel-

ings against what the Court told you the law was?” (Tr.

169.) Upon Venireman Rephan’s representation that he

“would abide by the law” (ibid.), he was qualified as a

juror.’ Yet not one of the veniremen who expressed uncer-

tainty on the subject of the death penalty was instructed

that Arkansas law required him to consider the imposition

of that penalty upon one found guilty of the crime of rape;

not one was asked—with or without the benefit of such an

instruction—whether he could “subordinate his personal

views to what he perceived to be his duty to abide by his

oath and to obey the law of the State.” Witherspoon v.

Illinois, 391 U.S. 510, 514-515 n. 7 (1968). .

B. Application of the Witherspoon Rule to This Record

We think the conclusion inescapable that the process of

selecting the jury which condemned petitioner to die vio- -

lated the rule announced in Witherspoon.

The holding in the Witherspoon case—w hich this Court

expressly. declaked to be “fully.vetroactive” (391 U.S., at

523, n. 22)—inyalidates all but a‘narrow form of death-

qualification procedure,’ carefully and meticulously de-

scribed in the Court’s opinion.*® That holding invalidates

* The defense later struck him peremptorily (Tr. 205).

® The question of the constitutionality of that narrow form of

death-qualification was expressly reserved in Witherspoon, a point

which the lower courts have altogether ignored. See note 25 infra.

% We are not unaware that the lower courts have generally re-

fused to give this effect to Witherspoon, a matter with which we

_ deal in Appendix C, infra. We, however, here take the Witherspoon

the systematic exclusion of prospective jurors scrupled

against the death penalty “on any broader basis” (391 U.S.,

at 522, n. 21) than one which excuses “only veniremen who |”

... [make] unmistakably clear (1) that they would auto-

matically vote against imposition of capital punishment

without regard to any evidence that might be developed —

at the trial of the case before them, or.(2) that their at-

titude toward the death penalty would prevent them from

making an impartial decision as to the defendant’s guilt.”

(391 U.S., at 522 n. 21, emphasis in original.) Thus, to

_eseape the explicit prohibition of Witherspoon, a practice

of excuses for cause on account of scruples against the

death penalty must allow a juror to serve unless he “states

unambiguously” (391 U.S., at 515-516, n. 9) 6n his voir dire

that his attitudes fall within one or the other of two

criteria: (1) that his opposition to the death penalty is

such that he cannot sit as a fair and: impartial trier of the

issue of the defendant’s guilt or innocence (391 U.S., at

622, n. 21), and, in this aspect, he cannot “subordinate

his personal views to what he... [perceives] to be his duty.

to abide by his oath as ‘a juror and to obey the law of the ~

State” (391 U.S., at 514-515, mn. 7; see also 391.U.S., at |.

515-516, n. 9); or (2) that he is irrevocably committed

against and would not consider voting for the death penalty ~—

in any case, regardless of the facts and circumstances that

might appear at the trial (391 U.S.,, at 522, n. 21), and

again, in this aspect, he cannot “subordinate his personal

views to what he’. . . [perceives] to be his duty to abide.

by his oath as a juror and to obey the law of the State”

— (391 'U.S., at 514-515, n. 7). These %enstitutional hles

were reaffirmed in similarly precise language in Boulden

v. Holman, 394 U.S. 478, 482 (1969):

Ques

opinion to mean exactly what it says—an approach that seems fully

justified by the obvious care with which that opinion was written.

“ .. ‘The most that can be ‘demanded of a venire-

man ‘inthis regard,’ we said [in. Witherspoon], ‘ig |

that he be willing to consider all of the penalties pro. -

vided by state law, and that he not be irrevocably com.

mitted, before the trial has begun, to vote against the

penalty of death regardless of the facts and cireun-

- stances that might emerge in the cour%e of the pro.

ceedings. If the voir dire testimony. in a given case

indicates that veniremen were excluded on any broader

basis than this, the death sentence cannot be éarried

- out....’ ... We made it clear that ‘{uJnless a venire-

man states unambiguously that he would automatically

vote against the imposition of capital punishment no

matter what the trial might reveal, it simply cannot

be assumed that that is his position.’... .”

. :

At petitioner Maxwell’s trial, no inquiry was made of

any juror excluded because of his views toward capital

punishment as to whether those views would affect in any

manner or degree his ability to find the defendant guilty.

Under Arkansas procedure, as under the Illinois procedure

q, considered in Witherspodn, a guilty verdict would not in-

“vitably entail the death penalty, and\for this reason (if

for no other) “it simply cannot be assumed” that a juror

conscientiously opposed to the death penalty would thereby

be unfitted to deliberate fairly on the question of guilt or .

innocence, Concern for qualifying the jury to decide the «

guilt issue—one of the two grounds reserved in Wither-

spoon as a possible’ exception to the strictures of that

decision—-therefore must be put wholly out of account as

a potential justification for what Arkansas has done here.”

11 See note 9 supra.

*2,For this reason, we,do not explore .erein the questions of. the

validity of this justification or of its limitations if valid.

As for the second Witherspoon reservation—exclusion of

prospective jurors who “state unambiguously” and thus

make “unmistakably clear” that they could never vote for

the death penalty.in any case and would decline to follow-.

the law, of the State obliging them to consider such a pen.

alty—we think it evident that no venireman excused in |

petitioner’s case expressed anything approaching such a

categorical attitude: . :

(1) Wenireman MeQleary was interrogated at the

conclusion of the questioning of a series of prospee-

tive jurors relative to scruples against the death pen-

alty. The first juror in the series was asked whether,

if he found the defendant guilty beyond a reasonable

doubt and thought a death sentence justified, “he had

“any conscientious scruples that prevent your impos-

ing such a sentence?” (Tr. 116.) We think that an

affirmative answer to this question could not validly

support exclusion under Witherspoon, for several rea- , Fe

sons. First, although the scruples inquired about are

_ described as those that “prevent” a death verdict, it a

is not made clear to the juror whether “prevent” means

absolutely to preclude, or rather merely to hinder, to

hamper, to impede or. to make difficult the return of

a death verdict.’* Second, the question is very far

from asking whether the juror is committed against a

_ death verdict in any and every case, regardless of the '

evidence or circumstances. Third, no effort is made

by the prosecutor or the court to explain to the juror

that his duty as a juror under the law of Arkansas

is to consider imposing the death penalty upon ‘con-

“Cf. People vy. Williams, 71 A.C. 638, 654-656, —— Cal. 2d

—, —— P. 2d —— (1969). 7 :

= : }

‘16

vietion for the erime of rape, and then to inquire

whether he could “subordinate his personal views [op

capital punishment] to... [thie] duty,” 391 TUS, an

$14-515.n. 7. Compare the inquiry pressed in the ease

of Venireman Rephan, who indicated that he might

holkLagainst the defendant his failure to take the stand,

pp. 11-12 supra; Appendix Bs, rfra.

But, in any event,-this was not the question ulti

mately mked of Venireman MeCleary, Subsequent

plirasings of the imjuiry put to jurors following th

first and pree@iling MeCleary watered down the dein

tion of sernples from those “that prevent sour unpes

ing... la death) sentence” to “seéruples about ompe

ing the’ death sentenée” [emphasiv added), to “oo

conscientious scruples aqamat the death sentence” Un

ferring to the previous questions) (emphasis Gdded

When a venireman gave less than an unequivocal “ny

to thix form of the question, he wae asked: “Do »

emertain day conscientions seruples about rn poo

the death penlaty [erc)" lemphasie aided). It te

follawing this formulation which plainly asks ne mer

than whether the venireman: has “general cohy jewrt ote

ty the death penalty or... conscientious of reley

scruples againet ite infliction” (Witherspoon, 20s

at 522. he quoted in Boulden vo Holman, 14 US.

451)—that the prosecutor called out the names of »

eral sutcessive Veniremen including MeCleary.

Cleary responded “Yes, | am afranud that, 1 de” #

was forthwith exeused for cause. (Tr' 1166-117.)

(2) Venireman Wade was asked whether.

vineed of guilt beyond a reasonable doubt and that’

erume was so abhorrent as to justifs a clenth verow

fs “4

‘M ath

the “would... have any con “clentious scruples against

the death penalty f° She replionl: “Ll would not sen-

tence the death penalty,” and was immediately excused,

(Er, 15.) - Wade jx the only one o

f the xo on Venire

men excused for scruples v. hoxe

exelision could argu. ;

reservation. But we submit that he

ails ronwe within shooting ‘lintane

r eSpression can-

HOt support her exelision a> a juror who nade. ayy.

Wistakabhy clear” she would not ¢

diet,

First. like

“onsider a death ver.

thre Wiestion pout to the first

Juror in the

Viet I, aru series, pra,

the vlestion asked of Wade—

Pees puting dil hot ildrens the

jam ibe b sepia hier conabel WndEd Nom cing “um

‘

fife

amd, necessarily, her

Sdnces in anu

Me for death. This ix particularly

wiernune Wade repliod met that «he

the denth seni tenen,

<ignifieant

tould not ITLLp ome

hut that whe would Pheot With,

Poon tinle pitte exphent thas a J0rer cannot be x

jre'loul tay Wen? that hie vould

Mipone a cleath sentenes..

sul { S.. nf sehen nm. 2

Moreover, neo more than any

Metrieted that the law of

uP i mifer, ta Comin teles

her Venireman wae Waele

Wrhktsiwsi« cobelies ‘| Nye r, 2

Tm ol the cliemthe promalts She was nit asked Whether

ali “4 fis ibele tu m tthe rlinate

boeee jh Teonal leelings to

trate Hip omenl sluts (Sew lisetiasion ar }’. Ps

V4) She was amerely ox timed for eniuse breuren tamer ‘we dyee

SAP Teese Ler foelines IMs rieteL amd of uneertain

‘Tremerth thet «he “Would not vote for the sdefondant’s

\ | rher « OM ieratien, Time, conned ttifi« bheeg oxely

evean tame this

ee Wie intend lene Proiorte lt fhe

rere, 0 acsanpagent bee mmtitinend thet the trial jtielye “Snter

preted Wade's response within the framework of the

constitutional standards announced by that decision,

or that he found her to be disqualified consonants

with those standards. To the contrary, the court’:

summary dismissal of every juror who expressed the

slightest reservations concerning the death penalty—

most of whom were palpably wolf dixqualified hs

Witherspoon standards—demonstrates that his ruling

on.the prosecutor's challenge to Wade was made pur

suant to constitutionally impermissible standards.

For this reason alone, Wade's exclusion was unproper:

this Court cannot now, obviously, sustain: the trial

judge’s deterinination of an issue that he never deter

mined. Cf. Rogers v. Richmond, 365 US. 534 (10

Petitioner was entitled tobe ttied by a jury from whi

veniremen were not excluded “on‘any broader basis”

(Withe rspoon, 3 U.S... at 522 n. 21: Boulden vs. Ho

man, 394 US. at 482) than Witherspoon countenanerd

‘Mre. Wade, like her comy cers, wae excluded on a dem

onstrably broader basis.

~ (4) Venireman Hagy was asked whether, if cor

vineed of guilt hevond a reasonable doubt and

the crime was so abhorrent as to puetify a deat

dict, she “would entertain anv consenntions set

about inflicting the death sentence!” She replied “I

don’t helieve in enpitel uanishment.”. and *

Meee piled: “Yan te nat believe von could return

verdiuet- of regiitel + svvamnielionvent ithe anid ‘

sir, | don't believe in entetol cemisiement@ (Ts

trim ,

Apart from the several considerations that we ha

nivanced in connertroon’ with the es syon of Ven

* | . 19 tes

man Wade, supra, Mrs. Hlagy was unconstitutionally

excluded, There is not the slightest indication in her

responses of the nature or’strength of her view twice

stated ax “I don't believe in capitol [xic| punishment,”

or of the implications of that view for her perform.

_ ance as a juror, The prosecutar’s second question to

cher stnply assumed the equation of belief against

capital punishment with a belief that the juror could

not return a capital verdict, If her reply “No sir,” to

this questioncoupled with an exact repetition that

she didn't “believe in” the death penalty—meant’ any-

thing “unmistakably,” it meant only that she accepted

thix equation by the prosecutor, which was not con-

demned by the court, as under Witherspoon it: obvi-

ously uiust be, See Ol US, at 516 wi. %: Boulden vy,

Holman, 394 US, at 4see i, at 483-484; “(hit is

entirely possible that a person who has ‘a fixed opinion

against’ or who dees not *helieve in” capital punish.

went might nevertheless le perfectly able as a juror

to abide by existing law— to follow comscientiously the

Instructions of a trial judge and to consider fairly the

imposition of the death sentences in a ypairtieular case.”

she theouaht she hisad COlSscientious scruples aheout cap

tal pinishinent that waht prevent her from returning

a death verdict, (Tr. i71.) The ineonsisteney of this

exclusion with Wyrh. Pspoow Tequires no discussion,

(2) Mrs. Breland Was exelided bees tise she thought

she had feelings “to prevent” her returning a death

verdict, iTr. 17s ath) We have - discussed iat. po. Ih

pra the impertniss<ible Mubiguity inherent in a plies

ben referring to seruples “that prevent” a death ver.

dict. The still weaker formulation in the question

asked Breland, “any feelings ... to prevent” return-

ing a death verdict, is evident. Even a categorical

answer to that form of question would not support

exclusion under Witherspoon. But Mrs. Breland re.

plied only that she thought she had such feelings. No

further inquiry, was directed to determining what she

would think if .the meaning of the question asked her _

were clarified and corrected, and her duty as a juror

explained.

(6) Mr. Adams was asked whether he had any feel-°

ing concerning capital punishment that would prevent

him or would make him- have any feelings about re-*

turning a death sentence, Me replied: “No, 1 don't

believe in capitol [sic] punishment.” (Tr. 181.) He

thus established unmistakably that (a) he did not be.

lieve in the death penalty: and (b) this feeling would

make him have some feelings about returning a death

sentence, His exclusion ix a plain violation of Wither.

Sie spoon.

(7) So was the exclusion’of Venireman MeAdame,

who said only that he had convictions, namely: “1 an

against capitol [si¢| punishment.” (Tr. 195-196.)

Thus we conclude that, in selecting the jury which con

demned petitioner Maxwell] to die, the State of Arkansas

z failed to conform to the requirements of Witherspoon:

and accordingly hix “death sentence cane be carried

RT ata Witherspoon, a0 °US., at-522 n. 21, quoted

.in Boulden v Holman, 94 US... at 482.

In reaching this conclusion, we have not ignored thy

numerous opinions of lower courts rendered sme Wither

" ¢ e+ —_-

_spoon Which purport drastically to curtail the operation

of that decision. In Appendix C to this brief, infra, we

shall have oecasion to catalogue. those opinions and to

deseribe the full extent of their obstruction of this Court’s

considered and carefully articulated holding. Suffice it to

say here that most of the rules developed in the wake of

Witherspoon to avoid its force have no possible applica-

tion on the present record—for example, the rule denying

relief to a death-sentenced:- man if the number of venire-

men excused in violation of Witherspoon is less than the

number of peremptory challenges remaining unused by the

prosecution at the conclusion of selection of the jury (see

p. 6a infra); or the rule permitting a trial judge who is

supposed to have conducted his voir dire examination gen-

‘vrally in conformance with the requirements of Wither-

spoon irreversibly to exelude particular veniremen in

violation of those requirements, dipon the reasoning that

appellate courts will not displace trial judges in the inter-

pretation of particular jurors’ responses on voir dire (see

pp. l4a-loa infra).

We conceive only three among the post-Witherspoon

doctrines’ ot the lower courts that could be interposed to

deny petitioner Maxwell relief from his unconstitutional

_ Sentence of death; and each of the three is insubstantial :

(A) The “different atmoxphere™ doctrine of People

v. Speck, 41 WL 2d 197, 242 NUE. 2d 208 (1968), and be

commate cases (p. tla infra), would limit the. Wither-

spoon holding to its most adventitious circumstances.

Specifically, these cuses attribute the decision. in

Witherspoonw-to the manner in which the voir dire

Samination in that particular case was conducted,

nately, by hurriedly and depreeatorily dismissing. all

“conscientious objectors” at the outset. Cases in which

the same wholesale exctusion is worked with less dis.

patch and more decorum are said to present a “dif..

ferent atmosphere” and hence to be distinguishable,

We need not pause to examine the intrinsic merit of this

distinction, whose least effect would be to reduce nine.

tenths of the carefully. written Witherspoon opinion

to purposeless and inexplicable maundering. For the

distinction, if ever available, cannot survive Boulden

v. Holman.

(B) A related doctrine would hold that a death sen-

tence need not be vacated where only a few veniremen

have been improperly excluded by Witherspoon e-

‘teria, since some few exclusions without more’ do not

really distort the representative character of the jury

which it was Witherspoon's purpose to assure, This

reasoning has been adopted by some courts and re.

jected -by others. (See pp. l5a-l6a infra.) It is, we

_ think, indefensibly wrong. ’

Trial juries consist. of only twelve Jurors, and can

never be truly “representative” of a community in

any other sense*than that the procedure used to select

the men and women who will sit in the box does not

exclude or discriminatorily limit the possibility of pa

ticipation of any identifiable population group. Ar

procedure, practice or policy which systematically

‘eludes an identifiable group makes the juries select

under it unrepresentative,’* whether one, or seven, ©

‘Of course. some systematic. exclusions such. as occupa wt

exemptions In proper cases may not result in constitutional vi

permissible uurepresentativeness. But Witherspoon holds that t

exclusion of jurors opposed to capital punishment does affect t

result. :

'* As here.

‘thirteen’ or a hundred veniremen of the systemati- .

eally excluded class actually appear on the panel and

are thrown out by operation of the procedure. In

petitioner’s Case, seven veniremen having attitudes

toward the death penalty which brought them under

the rule of Witherspoon appeared and might have

served, Every one was excluded, on that constitu-

tionally impermissible ground, as a matter of state

practice directed specifically to excluding them. The

duck of the draw might have produced more or fewer;

no matter; Arkansas’ death-qualification practice as

it was employed at petitioner’s trial excluded them all.

It is this practice which Witherspoon holds invalid,

for the obvious and irrefutable reason that its design

and necessary effect is to deny a capital defendant's

right to have on his trial jury whatever ‘number of

members may be put there by chance from out of any

population group which the State cannot legitimately

exclude.

We submit it is ridic ulous to Supposé that this C ourt

would countenance for one moment the exelusion’ by

atria! judge,-for cause, of a single Negro juror on

the stated ground that he is a Negro, ‘although by

chance he was the only Negro actually to appear on

the venire and suffer exclusion on that general ground,

Negro defendants" are entitled to have their juries

selected by a process that does not exclude any Negro

Jurors on account of race: and, for the same reason,

capital defendants are entitled under Witherspoon to

have their juries selected fy a process that does not

Asin Bouldin vo Holman

And perhaps white defendants “a point which it would be

«i vertin iv to dise USS he rem

exclude any jurors on account of general objections

to the-death penalty.: Because of the practical realities

of the random system by which vfhires are drawn—

only generally and as a proceffral matter approxi-

mating representativeness—gaAd also because of the

practical realities of the mahner in- which jurors fune-

tion—every one affecting in an uncertain measure thé

. deliberations of all—there is no room under the Con-

stitution for a de minimis doctrine relative to forbidden

systematic exclusion. Thus we need not labor the ob-

vious point that seven exclusions in ‘selection of a jury

of twelve could not, by any conceivable logic, be

de minimis. — oi

always as an alternative ground of decisions sustain-

ing the exclusion of jurors forbidden by Witherspoon,

that the defendant did not object to the exehusion, or

did not pursue exhaustive examination of: the jurors

excluded, or didnot exhaust his peremptory challenges

and by that means expréss his dissatisfaction with the

jury. (See pp. 16a-17a infra.)’ Petitioner’s trial coun-

sel did exhaust his peremptories; but he did not object

to the excuse for cause of serupled jurors, nor did

he add his own inquiries to the constitutionally inade-

quate ones of the prosecutor that precedeil each such

excuse. Neither did Witherspoon's trial coundel, for

Boulden’s; so those decisions are amply dispositive of

this point. Certainly petitioner was not required to

anticipate this Court's decision in Witherspoon and

make an objection which under the law of Arkansas,

as it stood at the time of his trial, could not conceivy-

ably have been sustained. O'Connor vy. Ohio, 385 U.S.

92 (1966). |

‘.

II.

This Court Cannot Properly Affirm the Decision ~

elow, Which Would Send Petitioner to His Death Pur-

ant to the Verdict of an Unconstitutionally Selected

uy.

There remains to-be considered the question whether

lis Court can take notice of the plain uncohstitutionality

‘ pétitioner’s death sentence under Witherspoon, in view

‘ the circumstance that no Witherspoon contention was

rged in his petition for habeas corpus, or-in his appeal

slow, or in his petition for certiorari ‘here. The answer

) thats question is controlled ‘by Boulden -v. Holman.

oulden came to this Court in a procedural posture iden-

cal to petitioner’s; the Court held that the proper dispo-

tion of his case, in view of the Witherspoon violation

pparent at his trial, was a remand to the district court-

where the issue that pas belatedly een brought td our

tention may be properly and fully considered.” 394 U.S.,

t 485. | :

Such a disposition would be all the more appropriate

efe—were there no other grounds upon which the judg-

ent of the court of appeals below should be reversed

See Part ILI, infra)—in-light of the history of proceed-

igs in the present matter. Petitioner Maxwell has been

n the lip of death before, and should not cruelly be placed

ere again, at least after the unconstitutionality of his

eath sentence has become apparent. In the instant fed-

ral habeas corpus proceeding —petitioner’s second—iagsti-

ited on July 21, 1966 (App. 2), the federal district court

eclingd to stay petitioner’s execution then set for Sep-

mber 2, 1966 (App. 2, 12), instead undertaking to hear

patente

; 26

and decide the issues raised by his, petition. prior to the

execution date. (See App. 17.) The court denied the peti.

tion on August 26, and simultaneously declined to issue a

certificate of probable cause or a stay of execution pending

appeal. (App. 41.) A Cireuit Judge of the Eighth Cireuit

having denied applications for a certificate and a stay,

it remained for Mr. Justice White to save petitioner's.

life by issuing a stay on September 1, 1966, one day before

his scheduled execution.

. In denying stays, the ‘idles below were doubtless af-

fected by the consideration that this was not petitioner's

first resort to the federal courts. Circuit Judge Matthes,

indeed, rested his refusal to stay the execution expressly

on the ground that Maxwell’s. was. a repeater ‘petition.

If petitioner were now to be remitted to a third federal

habeas corpus proceeding, necessary stays might be at

least as difficult to obtain as they were in the second.

In its pretrial conferénce order in the present stage of

the proceedings, the district court wrote:

“Counsel for Maxwell are now cautioned that if

they know of anyother constitutional grounds’ on

which his conviction and sentence may be subject to

attack, they should advance those grounds in this pro-

ceeding since this Court would be niost reluctant to

consider in some subsequent proc veding any ground

of attack which could have been raised in this pro-

ceeding.” (App. 17.) | . |

We could not and we certainly do not. quarrel witlr this

admonition of the district court, which was manifestly

fair and proper. But Witherspoon has supervened; the,

application of the admonition to the grounds given: pett-

tioner by Witherspoon is unclear; for this reason, a remand

such as was ordered in Boulden seems particularly fitting.

Remand would be fitting, that is, if—as we have said—

there. were no other grounds upon which the judgment

below should be reversed. _

III.

The Court Should Not, by Reason of W itherspoon’s

Supervention, Refuse to Decide the Issues Upon Which

It Has Granted Certiorari Here.

- ®

Contrary to California’s submission as amicus curiae,”

we believe that the’ conclusions reached in Parts I and Il

supra—that petitioner’ s death: sentence is unconstitutional

under Witherspoon, necessitating at the least a remand to

the district court—do not require and should not properly -

lead this Court to refuse to decide the issues upon which

certiorari Was sought and granted herein. We state our’

reasons for .this view:

First, the invalidity of Mritioners death sentence by :

force of Witherspoon does not render his other constitu-

tional contentions moot in a technical sense. We do not

consider what would be the case if petitioner were now

before the Court on direct.review of the judgment of the

Arkansas courts imposing upon him the death sentence

which he cliallenges on. several distinet grounds. It might

well be, in such a situation, that decision of one ground

would moot the others. But that is not petitioner’s : posture.

This is a federal habeas corpus proceeding of the sort

in which—as the Court recently recognized in Peyton. vy.

Rowe, 891 -U.S. 54 (1968), and Carafas v. LaVallee, 391

i ~~} 4 i i's

con lifhe tient

facotee fe ptt

ait therel

, : " }

, ;

" : ‘7

; ’ tity

ii ,

Ly ‘|

‘

; ;

fos

Secoml, then, we invite the Court's consideration of the

‘lowing punts, whieh we respretiidls siuerwest should

wretale if tO exercise its tinmdoubtedd diseretion to mel juddi

ate petitioner's constitutional challenves-te \rkansas’ pro

re of allowing its juries arbitrary and lawless power

se pitetive ta lif on ale ath on me sipeerler ve teliet eupital trial

| Detatsernnes Maawell, folferw ing his trial under

the “chisel bertngeered preweriites, bine mow been on sleath row

for more’ than se ven Sens If tits cuse ix ilisposed of

on 14 thi is penn creuthis ulone, hie will be staleye teal to

a retrial for his life uniler the same procedures, If

well surely lw fa work of the "thst oMiisite cruelly

fo Put ton Urough another such trial if, as he claus,

the. preedures Fe Meee tittaticomal Neg clem the

State of Arkanens biaver canes lomitinnaeste iterest on con

teting® such a trial, it “us we ate eid hl \r

Autieds capital trial priwedures are fevlerally invalid,

VMaawell will eather "tuitvive levtew ethereh teu lapenert thre

‘thee ie) en hy “a frinl aur lee will bine “Sewnted

tel aete bie van Il by “ital tigen bacet Lait \rkanens noth

Min: the eewertiel, teefhine te wl whe at 4 entitled

"Thwre nee, to ons Kimowledee, tore than. two

there ragutal vHree petelitnn in this Curt ore) preva t tartan

Petre Charting ‘ome on laeth of the tusy cotstitu

onal isin wpa which review was erattesd on the

Pteneslt wins (seme OOPEES Darl bande jiten woul tigen cong beer basa h f

v Yea J or te Ne 14 VW Met'ante 4

‘rime lt) Me , ' | Page '

Le har & bn V ( bela " vu ( tt uleme

\ ° 7 Tv ' Pw ‘rj twee \ ; Mew

/ ‘ ary wey -V ‘ ie

or ie & wv oe wv F i a

—_ Vv ay. SS , oF ivan & 1 Mim

’

° *

: : ww :

- ‘ ° e* °

al .

. . s ‘

of more than a hundred ether comdemned imem, raring”

tT OS ties, are peonedine m the lower courts’

For many of the “comelermned tien, there Insties fin

the only legal conte mitieons To available in bar of f thei

» gleetrocutions aml emis ,

14) If the Contt “ouvnsbed ebers tobe: thee Pefesemt otse wit!

‘ quit Terserls ing thitwer tmetions, if wigeht, of course, grant

review om cme on toere of the other prertor dongye ases. Bort

mone of these ‘ jbses jite setits the testes GN tere

° mprels or eeethe te tel’ then, heres peertetievtes ts “aes

fheone nite thiee-qunrt re > teperter thewoghe dis nlves ne : amd jet) 6

thonmer’s tine Hasew thee” cdestomet els emtiges 41) that thy

, inntees of state law an! to vt henner TD rstormdeng

5 is Neewssars te a jrteapert formulation of “the teers

cores tettet eral eptiers teeth Teveelvend beeve beeen Chereng! ‘=

Sorth vs Velewm, COT 1 New COS Mow Bisctes & Califor’

“rT bene Mee. > Maw Maewy \, Caistor mew, « r ty V.

are Mie Verna 6 Culeforwed. 094 fr) No “OR? Maw

ed. me 0 OC lator mee, if r ty NC wl Miw Mubonson « Ua

fermen, 08 T Bt New O80 Mew Aracdttoe « Funnn ttt i*

Na OO; Vw 4i 4 is vous, 097 pare. Ne i aMw Sewell

tml Rewctns ‘ W eek emeté “a oof ree Nee «6G Min Pr wae

+ terre, Of t Xe ob Wie Murs! 7 fi arenes af '

Xe? Ga ! beet © C'alefermod, @8 ae “et Xe '% re - Wi

. * ae Aedva ss Pachineion «87 Dot No [33 Mew Mell Vv tae

tice om. ) 1 Tet Nee sete VE ow Pawwcte © Avwlus iv ay tm,

Ne T?2 Vo ve Uurntane ‘4 ae (VT feet Ne OD Mew

° i tid, tle © Warewrept? MIP Ble New él san J

elaes detwe habeas « wipes prfewe Coline *pietregd -theee beets of te

hast ef Ohee eeertyee Oheate G4) tteteetee of D leer ule » deatt ned >i,

‘*si * Vileon, N 1 cal Ne, 63 tha tees eelend acs Ue tate fee

b 4

. Waeet of @ veterans er ted we ‘t al «. Cwleforee, 6 a wr

tt Maw y sn t Tie . ; >

Wave get af guages eh, ~~ ? oe? teens wt te by ‘! ye 4 het it «

goeh last teeene tts Mowdenw 6 tlehemae THA IN gk tee the

. the dhewth pevvelts t « Stwel aml anneal punmtanecut phe cbt

. | .

31 Fe

treated in the opinions below: (2) that this case has

already teen fully briefed and argued, pod set to be

reargued; and (3) that the Conyt has boon favored

by briefing and argunent diepein on behalf of the State

o Calfornia as well as the State of Arkansas, in de

lense of thferr common” pragtions The tone revpurres|

to bring another ense thus te the point of decision

would only delay Peseltion of the iestion of the con

stitutionalits ant they CoMmenly tsed enpetal trial prac

trees whook petitioner ehallenpres, hiring Which peypiod

MW delay further constitutionalla tssailable onpital

trials Wohd baave been hind

i4) thn the other hand. if the }Tesent onmse is ilis

posed of solely Om the Wether spy groumd, the Court

might deeude ty deelitee review im ‘the other from ding

CASES | raising the eqite “lions om Whieh eors rar; Whe

cranted here” Work All deterones, such a des sum could

.» @

omy be shar fers val is ot teal leks bieveredleras af litsetesan °

life. Por, still mors than when the Court fared to

hear these ytiations in 1 Yotnber of (OS. larate: teeny

beets sof liye depoome mrwsbately amd totals tap ony

thes 2 Pavwgeget nid MD ‘ore “eoltiticen bow thee Supreme

Court anf \. Vateal Stas, Thise ts seen Doe paattwe, Withien

the hast vemr, the ? whist, iets of 7 evernlnd the

Stafes hwsange the a tates! death row he el MT

the Nation hive ty Ny foul thy Pewee foulonnl vutiatity

> “2 \ye :

Tyetial contentions Cw “federal court of appeals

. e e ~ . ss e

Q ;

Vid wuts Y Bre Xe . PT? Ma A at Dias vod

> .

Le + J s \in’’ Ny ae | Tits te hewt

-¢ shel - chotuds P anal Seeit awaitooe ye vote F tpeeee Ps ; Aedes

OP Cal NEGIMA TH Gat Ope ot tno A at IGS) by

's whee lersl. sent teent maar t alifurtiae Vie spel tt wewebnos ire

bea eal wate ¥ " e* re | orb oe 4 “ee \, 4 ry ' le lh,

YT how te st tteclarals carbelenet tue . Phiet ihe Puy rh tout

: ons

*. . ad

riaav ing ft

(im socdhedit

thy evatite

Tae? . |

i ; ' ‘?

Thr? le Ti

' *

‘ i ,

i iti

; lern

ile nt?

;

’

{ ‘

ttee?

‘? ‘

’

;

’

‘33

grounds, the Coupt ond OXwet to las te rest any

substantial number of these death cases. But. the

Witherspoon dewision has heen ‘so badly crippled and

contorted by ungenerous ‘lower eourt Constructions,

whi ly linve inmvokedl se tony ditt ring les joes te de

feat its efleetive THplementation, that the restoration

ot Witherspoon te constitutional viger could not eon

eevably be worked by ams bevldinnge possible on the

present reeord VW. desentbe in \pepremedin ta two

how With, reper # has fered ov the lower courts, As

we have pomted ont in Part 1. supra, several of the

test sigeaeftesnd chen trities Voked te defont fare net

mvelved In petitioner MaxQwell’s ease, mtd their prey

TTT TEN ETO wes vated that thei correction by this

(Court would Peepuite cutters reaticon cof He TOMS comes

eMbiliting dierig com den pent terns “and puitterns

at apyariinnte heneoning Meanwhile, ne UW therspoor

is connintontts eometrictod by the state ayepe Hate egurts,

Have of-exeeufion tased on thetspoon claves are

Trereren tinny gage ttn Pesisinarls ditty alt fer mong ite VON onses

Where, te os TPewptiemtls geet thee “ifiintion, there exjet.

" trangeF iat of the # re eAaMINATION that oan he

MAT tbe j noel trithele thie legeman ‘ssf u jruent eeoney tert benny j" t;

heety perreee fae mw omy rat nt | + Verret heey sluts . Mingle. in

4 ; ‘

An? apepereerienbele Mistibey ff cleomth expen whe re atnes Af

Ver iti hinwe breve nm oor ments al on thy lettaes of -the TSM Ihe “

hry eenteal t; thy: q seer? }, iw Til tontys ' Mins ue it. Mi

Valle WW thewsy er CLM Ota dA

. , tte * t ot tvn foe ~>w no otf 6 weed ines 1

P* ve wees ' Vow / oe iu Phen \ 1s Mow

sheets 4 Siv \! >) wi. “1 080° low

“— r overte ree they ' wert LT tate lertuhs ’ Chen tule et

‘/ 74 ; oes 1 ; " «! ‘ope %. wheat ’ shee ert “af

* *

CONCLUSION

Petitioner Maxwell's death. sentence is aval under

ae r<poon \. [Minois. Uut his CONLTOV ETS with the Stats

f Arkansas does not stop there \rhansits lists Sentonend

potion te she, kept hit on death row for seven vears,

once brought hom within twents four hours of Neel ianty,

and now trenatens ham with a retrial for his hte uf he

"present sentener is vacated On Withe espoon grounds po

sant te eaprtal senTitenmenne procedures w heres: “eomersles

arbitrariness. mathes a mockery of the anes: rudueentar

Spomerples of constitutional dite process

Mord than four vind rel men on the death rows of J)

anyon have been coment te in wheat rennite cl, @nssenl, of

hanged pursuant te Similan arbitrary precadurs Mh

lives have been held forfeit by a seleetine doersvonal pre

vee ae hy tess that me comirt sitting tees fares the C conatet

thon’. Vapinte “| uly of daw eould tora ppsertvent caviina temas

n “Wake mays. at iiccisional: process fot thi ibisgrers fiat a

“athens ie. eriminaldr eral, Comsengine ntutl an this vent

sniftee td bey laws te reaotution bey om begral tribnnal Ses a

Breet for Petitioner heroin, pp. PEG

’

“The -livee of rremeny oa! theese’ tehewe Pheee chepeen emtire

poem thas t ourt's timely econsulération ame pooper adi

sdleath ag then te ths stun of ygeuita Tlal . ssatetut ‘

the hewer surts has we tt a ee ° ty toad We

oepigee o"enes the tha@evew feeras 1 sheoth epenated s/

the Wathetay H opinion & + bee ' }

titect tm Agepeeterdin € gure Phat the pe " '

vehtole for ceeetbereng that cinestre bee ' 7 We

reeguirement were ceed gree? beets

si) ;

cation of the question of Comstititionality of that arbitrary

ine We ure the fourt to decide the ‘Hiiestion. now,

ind to strike Hie process down

Respectfully submitted:

Ack GREENBERG

dantes Mo Nanner. 11

NomMAN OC. Astanen

Mi Hi An! Morr rSNEn

Jack Tint ansiers

Miizanern De Tops

1 ¢ oliupabipy (irel

New York, New Yor! TLE

Crhomar Tlowann. Ip

tie Main Street

Mit huff, \rhansas 710]

Stanton! | niverarts | mw Sehogl

‘ , . 4 +

“antorm!, California 140

j . ‘7

. ! ’ ; P } UD

A APPENDIX A

bvir Dire Examination of Seven Veniremen,

Excused for Opposition to the Death Penalty

r WG) By the Courts)

Does any other pervon have any reason why they

can tebecome jurors?

\Imieht, Mr. W hittington, you may ask,

Ik WHITTINGTON [ the. proseeutor|: Mr. Kimball,

he evidence convineed vou bevond a reasonable doubt at

conclusion of this, trial that the defendant .was guilty,

fwou thought w death sentence was justified, do vou

oan COonSscrentrous seruples that prevent vour IN pos

such a sentence |

\. No.

TT kd >, aa J

ie. 117] () Mire Kanada, of you were corn imnced be.

da reasonable doubt at the eonehusion ‘of this trial that

defendant was guilty, that vou theught a death sen

co Wie justifies, wold von have any ror secre ntiotis

\ijles boot DU Ne thy slenth sentence?

\ No SiT 4

’ Mr (jroom, vou ohiave beard the Question 1 just:

whole Ven entertain any such eonserentious seruples

inst the death sentenes od

\ No a: a e

’ Mr Martin. do von ents rtarm ane sneh seruple | fe

1. No ;

Y Mr. Beavers? ;

\ Nu, fined ot this proine

vor eTtertornn: “pages COnSsSCHOnMELOUS seruple: talvovut

‘

jOsine the cemth. pemalty

Q. Mr. Rima?

A. No.

Q. Mr. Met ‘leary?

A. Yes. Tam afraid I do. :

QT submit, your Honor, that) Mr: MeCleary should

i. lie excused, | 2

TH COURT: Alright, Maro MeCleary

LET THE RECORD SHOW L EXCUSED, \GALNS?

DEATILSENTENCE.

Pr LOO) MRO WHEEPTING TON:

able doubt of the guilt of the defendant and vou Melt the

erime he committed was proved beyond a reasonable dosh

and Was so abhorent-as to justify the death penalty woul

you havevany conseentious sernuples tivaiynst the deat!

- | penalty !

Ao 1 would not sentenee the death penalty

Vi WHEELING Pan | sulimit, your tbhorior, that Vives

Wide should be exeused

LIT THE RECORD SHOW MERS. WADE EXEL SED.

DOES NOTSBBLIEVE IN THE DEATH PEN LY

’

Tr. 160) VERO WHILE RING TON

“ ) ane

2 i) \ly Tlagry, if Vatll We re econvineed hevonel itorenes

abl clovualit iit thy iruaytt i! thre slofencdant ane “ thay

that this ermine wa Oo abhorrent ae te pasts the eal

prenall vould von entertain ams eonserentiou eruy

‘about onfletine the cheath seontenes

: \ | clevny't liolieve it) crpeitesl reer bine rif

- 3a

_—_—— .

(. You do not. believe you could return a verdict of

capitol pumshment ’ ;

A. ‘No sir, | don't believe in capitol punishment.

THE COURT: You will be excused.

LET THE SRIECORD SHOW MRS. HAGERY- DN

CUSED, DOES NOT. BELIEVE IN CAPITOL PI NISH

MENT, oe .

Tr 171) MR WHPTING TON: ji xd

‘Q. Mrs! Stroupe, Co | | 2s

ee kt D

EP von were convinced beyond a reasonable doubt

ithe end of this trial that the defendant was guilty and

that his actions had heen se shocking ‘that they would

Wert the death penalty de Jou have any cOnSClentious

Hiples about capitol Punishment that Might prevent you

rom returning: sueh ae verdict? >

\. TF think Tb de Hots

Mh. \ HIT TINGTON: | submit, Vout Honor, that the

hor should be excised. , Ree ee ee ei

| oh

THE COURT: You may he MNetised '

EET OTHE RECORD SHOW MRS. STROUPE. bey

SOSED. AGAINST PILE DIEATIE PreN VLE)

‘

WS) MRO WHIPTINGTON

. Mh Breland, if vou ws re eoumvineed that the defe n

vay onilty hevene 4h Prensonmable doubt ag the. end

. trig] ‘nel that bys ite Phan 1 ul breve Tt ty. hocking

horent ws te warrant the “lenth Penalty, do von

a «(itn beolin lvoe cripertaal pretnas Ninn nt fe pepe vent

Turning wueh [Pr pay a Verdiet?

A. Yes, I think I do.

MR. WHITTINGTON: I submit, your Honor, that Mrs.

Breland be excused.

THE COURT: You may be excused.

_ LET THE RECORD SHOW MRS. BRELAND EX.

CUSED, DOES NOT BELIEVE IN CAPITOL PUNISH.

MENT.

[Tr. 181] MR. WHITTINGTON: '

Q. Mr. Adams, do have any feeling concerning capitol

punishment that would prevent you or make you have

any feelings about returning a death sentence if you felt

beyond a reasonable doubt that the defendant was guilty .

# arid that his crime was so bad as to merit the death sen.

“ tence? |

A. No, I don’t believe in capbiel ponichaitink

THE COURT: You will be excused Mr. Adams.

LET THE RECORD SHOW MR. ADAMS EXCUSED,

DOES NOT BELIEVE IN CAPITOL PUNISHMENT.

(Tr. 195] MR. WHITTINGTON:

Q. Mr. McAdams, do you have any conscientious seru.

ples against capitol punishment?

A. I don’t have scruples, I have convictions.

(Tr. 196] Q. What are they?

A. I am against capitol punishment.

THE COURT: You wil be excused, Mr. MeAdams.

_ LET THE RECORD SHOW MR. McADAMS EX-

CUSED, AGAINST CAPITOL PUNISHMENT. —

_ APPENDIX B

‘Voir Dire Examination of Venireman Rephan

(Tr. 164) MR. WHITTINGTON: Q. Mr. Rephan, . . .

Mr. Mercer (defense counsel}: .

(Tr. 166) Q. The Court will so instruct you if you are

selected as a juror that it is the defendant’s right not to

take the witness stand if he so desires. Would the fact

that. this defendant would not take the stand as he so —

desires tend to cause you to believe that he might have

something. to hide, and therefore might be guilty?

_A. I don’t know how to answer that. ~ a

Q. The Court will ‘instruct you that the defendant is

presumed innocent until proven guilty beyond a reason- —

able doubt and that this presumption follows him through-

out the trial. Now, say that the defendant did not desire

to take the witness stand on ‘his behalf, would this fact —

‘tend to cause you to give more credibility to the State’s

testimony and evidence and raise a presumption in your —

mind that the defendant might have something to hide!

A. It might. I really don’t know, I can’t say.

THE COURT: That is the first time- that point has

(Tr. 167] been raised here, as to whether or not the defen-

dant might take the stand. I will say this to all the jurors,

each of you at all times at arriving at a verdict base that

verdict solely upon the law and will you be governed by

the law as given to you by the Court? Will each one of you

do that? If there isn’t anyone who will do that I want to

know it now. And using the law as given to you by the

- 6a of

- Court and the evidence from the witness stand, will you

base your verdict upon those two things, the law and the

evidence? In other words, Mr. Rephan, if it becomes neces.

_ sary and the Court does instruct you on whether or not |

. the defendant takes the witness stand, will you in arriy.

ing at a verdict base your decision upon that law and not

any opinion that you mares

A. Yes sir.

THE COURT: Proceed Mr. Mercer.

Q. You are saying you would not hold this against him!

A. There is a possibility that I might, that is hard to say.

Q. There is a possibility that it might?

A. That is hard to say.

~ Q. Pass the witness.

MR. WHITTINGTON:

. Q. Mr. Rephan, if you are instructed by the Court as

to the law of this case and the Court told you that you

could not maké anything from the fact that someone did

not take the stand would you be able to follow that in-

struction and would you be able to put out of your mind

any personal [Tr. 168] feeling that you might have, or

any conclusion that you might draw from that act, and abide

.by that instruction given to you by the Court?

A. Yes sir.

Q. Do you feel you could give the defendant a fair trial!

A. I do.

‘Q. You don’t have any prejudices that- ‘might affect your

ability to give this defendant a fair trial?

A. I don’t think Ido. |

Q. You would do your utmost to give him a fair trial!

A. Yes sir:

THE COURT: Mr. Rephan, you stated there that you

hought you could do that. It it dev elops i in this case and ‘

he Court would give an instruction whether or not the de-

endant does take the stand, which if the defendant does

sot take the stand the Court will give an instruction, would

vou substitute your feelings and your opinion for the in-

traction of the Court ‘or would you be guided by the In-

tructions of the Court? :

A. L would follow the instructions of the Court.

I want you to be sure of that, Mr. Rephan. This-is very

important as to whether or not at this time you feel if the

jefendant does not take the stand if you feel you might

be just a little bias or prejudice against him because he

lidn’t take the standt I want you to be sure about that. . -

(Tr. 169] A. I can’t be sure about it.

THE COURT: You would be the only one who would

know, I wouldn't.

Q. 1 would abide by the law I am sure.

THE COURT: In other words, you would not substitute

yout opinion or feelings against what the Court told you

the law was?

A No sir.

ee ee ren

a Soe eer

8a o

APPENDIX C

Treatment of Witherspoon v. Illinois

. by the Lower Courts —

This appendix includes all of the cases we have found

in which Witherspoon has been = by the lower

courts.’

A. Decisions setting aside death sentences.

The California and Georgia Supreme Courts have each

set dside a pane Pe of death sentences under Witherspoon,

and a few other state courts have set aside a few. In each

case, the death sentence was not definitively ‘excluded by

-the court’s decision; rather a new trial was ordered either

-of the issue of penalty alone (as in California and Georgia)

or of the issues of guilt and penalty (as in Louisiana and

Texas). It is interesting to note that the Georgia Supreme

' Excepting only cases involving sentences less than death where

a lower court has done no more than any to note that Wither-

spoon does not affect non-death cases.

2.4 number of decisions are reported in which federal habeas

corpus courts have remanded death cases to the state courts for ini-

tial determination of a Witherspoon claim. Brent v. White, 39

F. 2d 503 (5th Cir. 1968) ; Powers v. Hauck, 399 F. 2d 322 (ith.

Cir. 1968); Irving v. Breazeale, 402 F. 2d 23) (Sth Cir. 1968);

Garrison v. Patterson, 405 F. 2d 696 (10th Cir. 1969). Cf. Shinall

v. Breazeale, 404 F. 2d 785 (5th Cir. 1968) (remand to the dis

trict court). In the only ‘one of those cases with which we are

familiar, the State court thereafter rejected the Witherspoon

ground. Brent v. White, 19th Judicial District Ct. of La., Crim

Div., No. 47,265, decided. July 31, 1969.

In three cases known to us, federal courts have actually vacated

death sentences under Witherspoon. Spencer v. Beto, 398 F. 2

500 (5th Cir. 1968); Williams v. Dutton, 400 F. 2d 797 (Sth Cir

1968) ; Rideau v. White, E.D. La., _ _— Div., Mise. No.

970, decided May 12, 1969.

_ = — = aD &

Court has remanded for retrials as to penalty alone—thus

naugurating a system of separate trials of the. penalty-

issue to avoid either definitive invalidation of a death sen-

tence or an entirely new trial under Witherspoon—although

that court has steadfastly maintained that separate pen-

alty proceedings are impermissible under Georgia law

whenever confronted with constitutional challenges to the

single-verdict capital trial such as that made herein by

petitioner Maxwell. See Miller v. State, 224 Ga. 627, 163

S.E. 2d 730 (1968). ne -

In each decision vacating a death sentence and remand-

ing for a new trial, the court has directed that jurors on

retrial be death-qualified by the standards whose consti-

tutionality was reserved in Witherspoon. Thus, Wither-

spoon has invariably been. incorrectly. read as validating

the forms of death-qualification practice which it did not

expressly invalidate—or, at the least, the state courts have ~

proved absolutely unwilling to reconsider the validity of

those forms in’ light of the logic and reasoning of the

Witherspoon opinion.*

See: .. | "2

~ In re Anderson and Saterfield, 69 Cal. 2d 613,

73 Cal. Rptr. 21, 446 P. 2d 117 (1968)

People v. Risenhoover, 70 Adv. Cal. 15, 73 Cal.

Rptr. 553, 447 P. 2d 925 (1968) |

People v. Bradford, 70 Adv. Cal. 347, 74 Cal.

Rptr. 726, 450 P. 2d 46 (1969) :

. *See Petition for a Writ of ‘Certiorari, Forcella and Funicello

v. New Jersey, O.T. 1969, No. 18 Misc., pp. 69-74; Petition for a ~

Writ of Certiorari, Anderson et al. v. California, O.T: 1969, No. 60

Mise, pp. 52-57; and Mr. Justice Peters’ dissenting opinion in

People v. Tolbert, 70 Adv. Cal. 844, 867, 76 Cal. Rptr. 445, 458,

452 P. 2d 661, 674 (1969). ) ;

10a

People v. Sears; 70 Adv. Cal. 485,.74 Cal. Rptr. -

872, 450 P. 2d 248 (1969) rae

In ve Mathis, 70 Adv. Cal. 501, 74 Cal. Rptr. 914,

450 P. 2d 296 (1969)

_ People v. Teale,. 70 Ady. Cal. 582, 75 Cal. Rptr.

' -172,.450 P. 2d 564 (1969) . |

People v. Fain, 70 Adv. Cal. 625, 75 Cal. Rptr.

633, 451 P. 2d 65 (1969) ~

People v. Morse, 70 Adv. Cal. 762, 76 Cal Rptr.

391, 452 P. 2d 607 (1969)

People v. Osuna and Gorman, 70 Adv. Cal. 811,

76 Cal: Rptr. 462, 452 P. 2d 678 (1969)

People ‘v. Goodridge, 70 Adv. Cal. 878, 76 Cal.

— Rptr. 421, 452 P. 2d 637 (1969)

In re Eli, 71 Adv. Cal. 227, 77 ‘Cal. Rptr. 608, 454

P. 2d 337 (1969) )

People v. O’Brien, 71 Adv. Cal. 415, 78 Cal. Rptr.

People v. Vaughn, 71 Adv. Cal. 423, 78 Cal. Rptr.

» 186, 455 P. 2d 122 (1969) 7

People v. Quicke, 71 Adv. Cal. 521, 78 Cal. Rpt.

683, 455 P. 2d 787 (1969) .

In re Seiterle, 71 Adv. Cal. 722, 18 Cal. 7. 857,

456 P. 2d 129 (1969)

People v. Ketchel, 71 Adv. Cal. 659, 79 Cal. Rptr.

92, 456 P. 2d 660 (1969)

People v. Williams, 71 Adv. Cal. 637; 79 Cal. Rptr. °

65, 456 P. 2d 633 (1969) :

People v. Schader, 71 Adv. Cal. 797, —— Cal. Rot.

, . P. 2d —— (1969) |

People v. Stanworth,.71 Adv. Cal. 858, — Cal

_ Rptr. —, P. 2d —— (1969)>— )

People v. Gardner, 71 Adv. Cal. 882, Cal.

Rptr. —, —— P. 2d — (1969) a

lla.

In Re Hillery, 71 Adv. Cal. 896, —— Cal. Rptr. -

P. 24 —— (1969)

Miller v. State, 224 Ga. 627, 163 S.E. 2d 730 (1968)

Dixon v. State, 224 Ga. 636, 163 S.E. 2d 737 (1968)

‘Massey v. Smith, 224 Ga. 721, 164 S.E. 2d 78

(1968) ae |

Arkwright v. Smith, 224 Ga. 764, 164°S.E. 2d 796

(1968) ) eae}

- Williams v. Smith, 224 Ga. 800, 164 S.E. 2d 798

(1968) rah tee: ie

Jones v. State, 224 Ga. 782, 164 S.E. 2d 831 (1968)

Alexander y. State, —— Ga. ——, 168 S.E. 24 315

(1969) | ) : aris

State v. Turner, 220 So. 2d 67 (La. 1969)

State v. Benjamin, 222 So. 2d 853 (La. 1969)

Rouse v. State, —— Miss. ——, 222 So. 2d 145

(1969) I

State v. Spence, 274 N.C. 536, 164 S.E. 2d 593

- (1968) |

Ellison y. State, 432 S.W. 2d 955 (Tex. Cr. App.

1968) 7 3 ‘J

Ex parte Bryan, 434 S.W. 2d 123 (Tex. Cr. App.

1968)* |

B. Decisions refusing to set aside death sentences

In all cases found ‘other than those just cited, lower

courts have discovered some means to avoid Witherspoon.

Weattempt below to categorize the rules and doctrines

in avoidance. hat |

‘See also Evans v. State, 430 SAW. 2d 502 (Tex. Cr. App. 1968);

reversing for failure of the trial court to have voir dire examina-

hy transcribed on request; Aaron v. State, 283 Ala. 52, 214 So.

-d 327 (1968), remanding for consideration of the Witherspoon

sue by the trial court. - ,

12a

1. Doctrines distinguishing or “construing” Wither.

spoon: .

a. The “different atmosphere” doctrine. The With.

erspoon decision is said to-rest entirely on the fact

_ that the trial judge in that case rushed to sweep the

. jury of. conscientious objectors. , Cases in which the

presiding judge is more deliberate on the voir dire ,

albeit equally effective in excluding the same venire.

men—present a “different atmosphere.” In cases with

a “different atmosphere,” the precise, carefully artion:

lated standards whose elaboration comprises the bulk

- of the Witherspoon opinion. are said to be simply “not

binding” on state ¢«ourts. People v. Speck, 41 Il 2d

177, 227, 242 NE. 2d 208 (1968). See also People v.

: Mallett, —— Ill. 24 ——, 244, N.E. 2d 129 (1969);

People v. Moore, 42 UW. 2d 73, 246 NK. 2d 299 (1969):

Jaggers v. Commonwealth, 489 S.W.-2d 580 (Ky. 1968):

State v. Mathis, 52 NuJ. 238, 245 A. 2d 20 (1968) ; Brent

v. White; 19th Judicial District Ct. of La., Crim. Div,

+ No. 47,265, decided July 31, 1969. C/. Bell vy, Patterson,

402 F. 24 394 (10th Cir, 1968).

b. The “different statute” doctrine. The highest

courts of three States have purported to distinguish

Witherspoon in whole or in part upon the ground that

their state statutes differ from Illinois’ in that their

statutes disqualify only jurors whose scruples would

prevent them from. finding the defendant guilty.

Wilson v. State, 225 So. 2d 321, (Fla. 1969); Williams

v. State; Fla. Sup. Ct., No. 37,316, decided April 2

1969; Howard vy. State, Nev. ——, 446 P. 2d 16

(1968) (dictum); Koonce v. State, Okla. Ct. Crim

App., No. A-14,826, decided May 21, 1969. These stat:

13a

utes are, of course, of the sort which the : Wither-

spoon opinion noted are sometimes not construed as

meaning what they say (S91 U.S, at 513-514, n. 5,.

citing Florida and Nevada decisions); and, in fact,

‘in all three States the statutes have been consistently

~ pead—both before and after the explanation that they

squared with Witherspoon because directed to “guilt”-

qualification—as allowing disqualification of jurors:

whose ‘scruples would affect only their votes on pen-

~ alty, not guilt. Piccott ¥. State, 116 So, 2d 626 (Fla.

1959) ; Pitts v, State, 185 So, 2d 164 (Fla. 1966) ; Sims

v. State, 184 So. 2d 217 (Fla. Dist. Ct. App. 1966) ;-

and see the voir dire practice reflected in Abram vo

' State, 216 So, 2d 498 (Fla. Dist. Ct. App. 1968). State

v. Williams, 5 Nev, 271, 257 Pac, G19 (1927) ; Spillers

V. State, —— Nev. ——, 436 P. 2d 18 (1968) ; Walker

coe Stafe, —— Nev. —, 455 P. 2d 34 (1969), And see

_ the exclusions sustained in the Noonce case itself.

& The doctrine that Witherspoon could not have

been intended to deprive the prosecution of an™im-

partial” jury on the question of penalty; that a juror’s

“impartiality” must appear affirmatively; therefore,

that exclusion of equivocal veniremen is proper. This |

doctrine, which stands the “unmistakably clear” for-

mulation of Witherspoon on its head, began with State

_Y. Mathis, 52 N.J. 238, 245 A. 2d 20 (1968). See also.

‘Williams v. State, Fla. Sup. Ct. No. 37,316, decided

April 23, 1969; Campbell v. State, Fla, Sup. Ct, No.

35,022, desided June 11, 1969; State vy. Atkinson, ——

N.C, ——, 167 S.E. 2d 241 (1968); Pittman v. State,

$84 SW. 2d 352 (Tex. Cr. App. 1968); ef. Davis v.

State, —— Ark: , 440 SW. 2d 244 (1969) ; Koonce

V. State, Okla. Ct. Crim. App., No. A-14,826, decided

ld4a .

May 21, 1969. But see People v. Chacon, -— Cal. 24

anim, $3 Cal. Rptr. 10, 447 P. 2d 106 (1968) ; People

v. Osuna and Gorman, supra.

a The doctrine construing Witherspoon to permit

disqualification of a-juror who would not vote for the

death penalty in the particular case. being trigd, al.

though he could vote for death in another sort of case,

See Jaggers v: Commonwealth, 439 SW, 2d 580 (Ky,

1968); State v.. Forcella, 52 N.J, 263, 245 A, 2d 18!

(1968); State v. Peele, 274 N.C. 106, 161 SL. 2d Ses

(1968); Pittman v. State, 434 S.W..2d 352 (Tex. Cr.

‘App. 1968); Smith v. State, 437 SW. 2d 835 (Tex. Cr.

App. 1968). But see 391 U.S., at 522 n, 21

We. And the Maryland Court of Special Appeals

has suggested that Witherspoon may have no appli-

-cation in that State, because a capital jury in Mary.

land merely recommends and does not impose the death

sentence, Veney vy. State, 251 Md. 182, 246 A, 2d

(1968). But see 391 U.S,, at 51S, n. 12; éd., at 522.

2. Methods of interpreting a voir dire transcrip! so w

to avoid Witherspoon:

a. Distinguishing Witherspoon if the tiial judy

conducted any sort of inquiry going beyond. gener

opposition to capital punishment. The nature of the

inquiry and of the ‘juror’s response are in this view

ap arently immaterial. Segura v. Patterson, 4 402 Fb

249 (10th Cir. 1968); People v, Mallett, —— Ul. &

——, 244 N.E. 2d 129 (1969); State.v. Pructt, 18 Obe

St. 2d- 167, 248 N.E. 2d 605 (1969) (semble).

b. According deference to the trial court's interpre

tation of a venireman's responses in ruling on che

lia ,

lenges for cause, This constructional ‘eanon—proper

enough in its place, of course—is consistently applied

to the construction of voir dire proceedings conducted —

prior to the date of Witherspoon, at a time when the

trial judge would not in fact have been using proper

W itherspoon standards. The court that applies the

canon usually does so in an opinion that retroac tively

rewrites the pre-Watherspoon law of the State as con-

sistent with Witherspoon, State vy. Mathis, 52 N.J.

* 938, 245 A. 2d 20 (1968); State v. Forcella, 52 NJ.

263, 245 A. 2d 181 (1968); Pittman vy. State, 434 S.W.

2d 352 (Tex. Cr. App. 1968); State vy. Aiken,

Wash. 2d ——, 452 P. 2d 232 (1969).

¢. Observing that “ho particular form of words” is

necessary to satisfy Witherspoon. In: practice, this

“means that most any fori of words, however far from

the mark, will ‘satisfy Witherspoon. People v. Speck,

41 Ll. 2d 177, 242 N.E. 2d 208 (1968); Koonce vy. State,

. Okla, Ct. Crim, App, No. A-14,826, eons May 21,,

1969; Pittman vy. State, 434 B.W. 2d 352 (Tex. Cr. App.

1968); State vy. Aiken, —~ Wash. 2d ——, 452 P. 2d

232 (1969); ef. People v. Varnum, 70 Adv. Cal. 514,

75 Cal. Rptr. 16), 450 P. 2d 533 (1969).

3. Methods of avoiding W itherspoon whe ‘re jurors were

vamistakably excluded in violation of the “rule of that

decision: =

a. The determination that headin only a few jurors |

_ were unconstitutionally excluded, the requisite repre-

sentative quality of the jury was not -destroyed, Bell

v. Patterson, 402 F. 2d 394 (10th Cir. 1968); State v.

Mathis, 52 N.J.* 238, 245 A. 2d 20 (1968); State v.

Wigglesworth, 18 Ohio St; 2d 171, 248 N.E. 2d 607

16a

(1969) (alternative ground, semble); Scott y. State,

434 S.W. 2d 678 (Tex. Cr. App. 1968). Contra: People

v. Fain, 70 Ady. Cal. 625, 75 Cal. Rptr. 633, 451 P, 24

65°(1969) ; Miller v. State, 224 Ga. 627, 163 S.E. 24 739

(1968); pp. 22-24 supra, . wit

b. The observation that unexhausted prosecutorial

peremptorics outnumbered unconstitutionally excluded

. veniremen, Announced as a “releVant makeweight” in

State v. Mathis, 52 N.J. 238, 245 A. 2d 20 (1968), this

consideration frequently appears as an alternative

ground of decision.. Campbell v. State, Fla. Sup. Ct,

No. 35,622, decided June 11, 1969; People x, Speck,

41 Ill. 2d 177, 242 N.K, 2d 208 (1968) ; People vy. Mallett,

— Ill. 2d —, 244 N.E. 2d 129 (1969); People v,

Moore, 42 Ill. 2d 73, 246 N.E. 2d 299 (1969) ; State v,

Wigglesworth, 18 Ohio St. 2d 171, 248 N.K. 2d 007

- (1969); Scott v. State, 434 S.W. 2d 678 (‘Tex. Cr. App.

1968). Exeept in the California Supreme Court, /s

re Anderson, 69 Cal. 2d 613, 73 Cal. Rptr. 21, 446 P.M

117 (1968); People v. Sears, 70 Ady. Cal. 485, 74 Cal

Rptr. 782, 450 P. 2d 248 (1969), no notice seems to

be taken of the palpable unconstitutionality of a cov.

clusive judicial presumption that the prosecutor will

systematically employ his peremptories to exclude

- from the jury a class of persons that this Court has

held cannot be excluded. But see Swain vy. Alabama,

380 U.S. 202, 222-228 (1965).

e. The observation that defense counsel did not o-

ject, or did not inquire further regarding the excluded

jurors’ attitudes,-or did not express his dissatisfaction

with the jury by exhausting his own peremptorie.

This, also, is usually an alternative ground of decision

State vy. Peele, 274 N.C. 106, 161 S.K. 2d 568° (1968);

17a

‘State v. Wigglesworth, 18 Ohio St. 2d 171, 248 N.E. 2d

607 (1969); Pittman y. State, 434 S.W. 2d 352 (Tex.

. Cr. App. 1968) ; Scott v. State, 434 S.W. 2d 678 (Tex.

Cr. App. 1968). Contra: the Anderson and Sears cases .

cited in the preceding paragraph.

d. Miscellaneous procedural grounds: State v..-

Crook, 221 So. 2d 475 (La. 1969); Duisen vy. State, 441

S.W. 2d 688 (Mo. 1968) ; Baker v. State, 225 So. 2d 327

(Fla. 1969) ; Lokos v. State, Ala. ——, 221 So. 2d .

689 (1969). eee

4. Decisions articulating relatively unimpeachable With-

erspoon standards but manifestly misapplying them:

Segura v. Patterson, 402 F, 2d 249 (10th Cir. 1968) ; State

v. Atkinson, N.C. , 167 S.E. 2d 241 (1969). A

common ground of misconstruction of the voir dire resides

in taking literally a juror who says that his scruples will

affect his ability to return a “guilty” verdict, although, in

the context of the applicable state law, verdict forms and/or

coir dire questioning, a “guilty” verdiet means an unquali-

fed guilty verdict—that is, a vote for the death penalty.

See Wilson v, State, 225 So. 2d 321 (Fla. 1969); Furman

v: State, Ga. ——, 167 S.E. 2d 628 (1969); cf. State’

v. Forcella, 52 N.J. 263, 245 A. 2d°181 (1968); Veney v.

State, 251 Md. 182, 246 A. 2d 568 (1968). It should be

noted that even the California Supreme Court, which has

given the most generous reception to Witherspoon of any

fate court, permits disqualification of veniremen for

«ruples without instructing them that state law requires

them as jurors to consider the death penalty, and then

inquiring whether they are able to subordinate their seru-

ples to this duty. People v. Beivelman, 70 Adv. Cal. 37,.

3 Cal. Rptr. 521, 447 P. 2d 913 (1968); People v. Durham,

18a

70 Ady. Cal. 179,74 Cal. Rptr. 262, 449 P. 2d 198 (1969);

People vy. Hill, 70 Ady. Cal. 723, 76 Cal. Rptr. 225, 452

P. 2d 329 (1969); People v. Varnum, 70 ‘Ady. Cal. 514,

75 Cal, Rptr. 161, 450 P. 2d 553 (1969) ; People v. MeGautha

and Wilkinson, 70 Adv. Cal. 823, 76 Cal. Rpt r. 434, 452 P. 24 i

650 (1969) ;-People v. Tolbert, 70. Ady. Cal. S44, 76 Cal.

Rptr. 445, 452 P. 2d 661 (1969); People v. Coogler, 71 Ady,

Cal. 165, 77 Cal. Rptr. 790, 454 P. 2d G86 (1969); People

v. Nye, 71 Ady. Cal. 376, 78 Cal. Rptr. 467, 455 P. 2d 395

(1969) (defense counsel’s interrogation, in addition, was

unduly restricted); People v. Miller, 71 Ady. Cal. 477, 78

Cal. Rptr. 449, 455 P. 2d 377 (1969).

_ 5. Opaque decisions: In. these cases refusing to vacate -

death sentences it is impossible to evaluate the application

made of Witherspoon, since not enough appears from the

respective opinions to appraise the courts’ characterization

of the voir dire (or relevant parts of it) as consistent with |

Witherspoon standards. Sims v. Eyman, 405 F, 2d 489 (9th

Cir. 1969) ; Pe ople v. Mabry, 71 Adv. Cal. 448, 78 Cal. Rptr.

655, 455 P. 2d 759 (1969); People v. Pike, 71 Adv. Cal. 64,

78 Cal. Rptr. 672, 455 P: 2d 776 (1969); Whisman v. ag

224 Ga. 793, 164 S.E. 2d 719 (1968); State v. Hudson, 221

So, 2d 484 (La. 1969); Walker v. State, —— Nev. —,

455 P. 2d 34 (1969) ; State v. Crampton, 18’Ohio St. 2d 182,

248 N.E. 2d 614 (1969) ; Quintana v. State, 441 S.W. 2d 191 |

(Tex. Cr. App. 1969); State v. Smith, —~ Wash. 24 —,

446 P. 2d 571 (1968).

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.