Amicus Curiae Brief — Maxwell v. Bishop

LIBRARY pie | FILED

SUPREME COURT & } OCT 24 1999

3 No: 13

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1969

WILLIAM L. MAXWELL, PETITIONER,

Vv.

O. E. BisHor, Superintendent of Arkansas State Penitentiary,

RESPONDENT

On Writ of Certiorari to the Un ted States Court of Appeals

for the Eighth Circuit

BRIEF AMICI CURIAE OF BERL I. BERNHARD, WILLIAM COLEMAN, SAMUEL

DASH, JOHN W. DOUGLAS, STEVEN DUKE, WILLIAM T. GOSSETT, JOHN GRIF- -

PITHS, RITA HAUSER, GEORGE N. LINDSAY, BURKE MARSHALL, MONRAD 5.

PAULSEN, STEVEN R. RIVKIN, WHITNEY NORTH SEYMOUR, JEROME J. SHE-

STACK, CYRUS R. VANCE, and JAMES VORENBERG, URGING REVERSAL

BERL |. BERNHARD

“L" Street MAS. RITA HAUSER

ty 0.c. 20038 110 East 42nd Street

WILLIAM T. COLEMAN, JA. ‘New York, New York 10017

2636 Fidelity Phitedsiphie Trust Building . esones &. LINDSAY

aa ahead New York, New York 10022

Georgetown Lew Center BURKE MARSHALL

Washington, 0.C. 20907 a“ Armonk, New vers sone

MONRAD S&S. PAU

cee - 100 Sect, WW. Gnteardy of Vinghte tw Behoet

Washington, 0.C. 20006 Cheriottesvilie, V 22904 .

STEVEN A. RIVKI

Yeo Lom Gobet 918 - 16th Street, N.W.

yl

Ww

WiLLiam r GOssEeTT wae

Detroit, Michigen 486226 New York, New York 10006

JOHN GRIFFITHS JEROME J. SHESTACK

Yele Lew Sehoot 1719 Packerd Building

New Hever, Connecticut 06520 Philedeiphie, Pennsyivenis 19102

CYRUS F. VANCE JAMES VORENBERG

120 Brosedwey Herverd University Lew School

New York, New York 10005 Cambridgh) Massechusetts 02140

(i)

TABLE OF CONTENTS.

Page

CHUN. a cece game. 0 e'ss oe nb pwc ere beeen (1)

Interest of Amici Curiae. -. 0.0... hestatare wu ‘eb te |

DE TGs ok ea ea eee et eeeseesseoes an

1. Without appropriate standards, the Arkansas single-

verdict. procedure is susceptible to racially motivated

decisions on the imposition of the death penalty, in

violation of the constitution’s due process and equal

PROLCCHON BUATAMIGES oe ee ga, ce

I. The single-verdict procedure compounds the vices of -

standardless sentencing and imposes needless and im-

permissible burdens on the right to a fair trial on the

issue of guilt or innocence 2.0.00. eee 4

CONGED 6.6 es ee Paes Ce eee ele 18

a CITATIONS :

Cases: ,

_ Estes v. Texas, 381 U.S. $32 (1965) 2000. ee, 10

Giaceo v. Pennsylvania, 382 US. 399 (196) 0... 4, 13

Griffin v. California, 380 U.S. 609 (1965)... 7, 12, 15, 17, 18

Higgins v. Peters, U.S. District Court, No. LR-OS-e-176, °

E.D. Ark. (September 25, 1968) 200 ee eee 7

Jackson v. Denno, 378 U.S. 368 (1964)... .. «Sn 385

Loving v. Virginia, 388 US. 1 (1957) deena 7

Lyons v. Oklahoma, 322 U.S. 596 (1944)... ie aetna ste

In Re Murchison, 349 U.S. 133 (19SSp 00 Sl, 10

North Carolina v. Pearce, 395 US. 711 ;

CIRO 6650s ae se + 9, 2, 15, 17, 18

Offutt v. United States, 348 US. 11 (1954) 0 10

Rogers v. Richmond, 365 US. $34 (1961) 6

(ii)

Searber v. State, 226 Ark. 503, 291 S.W. 2d 241 (1950)...

Sheppard v. Maxwell, 384 U.S. 333 (1966)... 00... re

Spencer v. Texas, 385 U.S. 554 (1967)... 0...

Tumey v. Olfie, 273 U.S.:510 (1927): ........

United States v. Jackson, 390 U.S. 570 (1968)... . |.

Whitus v. Balkcom, 333 F.2d 496 (Sth Cir) 1964)...

Witherspoon v. Hlinois, 391 U.S. 510 (1968)... “— “ ne

Worcester v. Commissioner, 370 F.2d 713 (Furst Cw.

ERS eo, Sah eae ee a ar

Statutes.

Model Penal Code. American Law Institute, Section

OR a he

Other Authoritics:

President's Commission on Law Entorcement and Admin

stration of Justice, Report “The Challenge of Came in

. a kree Society” (1967) ee. Tear eee ree

Wright, Federal Practice and Procedure (Criminal) Sections

NS os igs gl ¢ 0:8’ oe

13

”)

)

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1969

No. 13

WILLIAM L. MAXWELL, »

Petitioner,

Vv.

O. E. BISHOP,

Superintendent of Arkansas State Penitentiary,

Respondent.

af

On Writ of Certiorari to the United States Court of Appeals

for the Eighth Circuit

BRIEF AMICI CURIAE OF BERL I. BERNHARD, WILLIAM COLEMAN,

SAMUEL DASH, JOHN W. DOUGLAS, STEVEN DUKE, WILLIAM T. GOS-

SETT,- JOHN GRIFFITHS, RITA HAUSER, GEORGE N. LINDSAY, BURKE

MARSHALL, MONKAD S. PAULSEN, STEVEN R.. RIVKIN, WHITNEY

NORTH SEYMOUR, JEROME J. SHESTACK, CYRUS R. VANCE, and JAMES

VORENBERG, URGING REVERSAL.

INTEREST OF AMICI CURIAE! °

The amici curiae join to tender Argument to the Court

on an aspect of this case which reflects the most funda-

‘Pursuant to Rule 42, paragraph 2, there have been lodged with

the Clerk the written consents-of the parties to the filing of this

Brief Amici Curiae.

’

mental dimensions of their individual professional respon-

sibilities as members of the Bar.

The first motivation prompting this brief is a pfotes-

sional concern to preserve and develop the standgrds.of

fairness in the administration of justice standir

heart of our constitutional structure. Each of the signers

of this brief is familiar with the problems of criminal law

enforcement and with the practical requirement that the

American system of criminal justice function with sub-

stantial fairness to all accused of crime.

In addition, each of the signers‘of this brief has pledged

his professional skills to the fulfillment for all Americans

of civil rights under law. Since the context in which this

case rises to Constitutional proportions is shaped by the

factor of race, the signers consider Argument with respect

to the bearing of this factor essential to the full and

proper development of the questions fairly comprised in

this case. oat

Because considerations of procedural fairness and racial

"justice come together in the constitutional issues here on

review, the undersigned hereby respectfully tender this

briel amiict curiae

‘.

3

ARGUMENT

WITHOUT APPROPRIATE STANDARDS, THE ARKANSAS

_SINGLE-VERDICT PROCEDURE IS SUSCEPTIBLE TO —

RACIALLY MOTIVATED DECISIONS ON THE IMPOSI-

TION OF THE DEATH PENALTY, IN VIOLATION OF THE

CONSTITUTION’S DUE PROCESS AND EQUAL PRO-

_ TECTION GUARANTEES.

Standards to. guide juries in selegting convicted persons

for capital. punishment are essential to comply with the

Due Process requirement that discretion be limited and

that the criminal process include structural guarantees

against decisions based on passion and prejudice, as well

as the Equal Protection requirement that the State not

“ invite racially motivated decisions. Appropriate stand-

ards can be devised by any State which wishes to delegate

to juries ‘the power to impose the death sentence.

: ieee’

The death penalty for a “capital” offense has become

the exception, rather than the rule. and this accentuates

‘the need for standards to determine the occasions on

which it is to be inflicted if administration of the death

penalty is to meet .Due Process requirements. . The

current rarity of the death penalty also destroys the

support of tradition for the Arkansas practice.

Only.a small fraction of persons convicted of offenses

for which death ts a possible penalty actually receive the

death sentence, im Arkansas or anywhere else (see Peti-

tioner's Appendix B, at 244-344). It is nowsunthinkable

that any ‘significant, proportion of “capital” offenders

could be put to death. Thus the defimitions of so-called

a

4

» ae | ; :

“capital offenses” no longer reveal anything about the

criteria by which the death sentence may be Mposed,

-In capital cases, the ubsence of any relationship between

the elements of the offense and the punishment imposed

makes compelling the need for explicit) standards to

guide the jury. The sentencing jury in a capital case ts

empowered to select for a special and awesome penalty

a very few. victims from among the total pool ot con-

victed persons. It should hardly require argument that

the power to make such a selection cannot be delegated

without any standards at all. in a constitutional system

which will not allow delegation of the power to Impose

court costs onan acquitted defendant as on a mere tind

ing that he was guilty of “some misconduct” which “has

given rise to the. prosecution.” -Giaccor Periisvdvania.

382 US. 399 (1966). Due process of law is denicd-in

the most fundamental way when a decision to forbert

lite is:made on the basis of no legal rulecat all

harher in our history, when the death sentence was a |

normal adjunct to a conviction, the definition of a

capital crime genera ly provided some guidance tor the

occasions on which capital punishment would fy

inflicted: and made plausible the proposition that a jury,

might lawfully be lett wath unguided discretion toa dts

pense meres

There is unquestionably a great differen

between discretion to reprieve and. discretion to take oa

life. Ultimately, whether a situation involves the one ot

the other is a question of fact. The fact is that capital

sentencing in’ 1969 conststs of the selection of victims

-

‘not the selection of persons to be spared

When a death sentence ts no longer a serious possibility

for the vast majority who commit) the proscribed

offense, it becomes a fiction to pretend that the commis-

sion of the offense itself is the cause of the sentence.

The offense has become. an excuse fo execute a man for

other unrelated or virtually unrelated reasons, Perhaps

such a system is permissible bat only if these collateral .

reasens are Clearly prescribed. Arkansas’ juror, delegated

the power fo make society's most awesome choice, is

4 *

HIVen no criterie upon which to make it, He is left to his

prejudices and: hits subgonscious for the keys to dec Sian,

Often, as Petitioner’ S statistics at least strongly suggest,

the juror is moved by -his tear of difference and decides .

lo mmpose the death penalty upon the defendant becuuse

of his race F

The disappearance of the death penalty ‘as a normal

consequence of, conviclion for even the most heinous

offenses has not only enlarged the gperational content

of jury “diseretion”, and created the necessity for

Standards, if has climinated tradition as a ground: for

perpetuating the Arkansas practice. The issue now

before the Court is vastly different from what it might

have been SY i few decades: apo, “though i remins

clothed in Ite sume conceptual aArMents

I

The Arkansas procedure is tantamount to an instru

fon that race may be taken ito account and is thhis a

deprivation of Equal Protection of the Laws

!

Hoan. Arkansas court, or any other court, were to

charge a-sentencing jury that it could consider race in

deciding defendants fate, a sentence imposed by such a

ry Would be vod with no proot whatever that the yurs

ts .

° 7

al

had actually been racially motivated i Tr rt the ~“n

tence (see Petition for Certoran. pp 46-27) The some

Constifutional nuke woo fortion where ne wptleme ts

death Our systemeof pure trials tests wont Che assnienagetoeyn

that wines are guided and influenced by what thes an

and are not told by the presaling pudge Countless con

victioms ate reversed peers veut “in evens purmdiotioen low

hare Hi hs not uinalmmnen fey a com ietion

itned for the sole re Jeon thal an Hast rition

Mo CrP lenicemis “wus unclean oF contysang Ney

boderal Pratwe and Privcediuure (€ criminal See

ins, 4K" aU Patty Nume os Com te Nien hud been

DT ee nm hin reason than 1a, fathuge cf thy ourt te’

"gistnid fully nh eee Hoyas, want «¢ ‘ ave evnatel

deol TR sf eon ete oo the lerevnaread off

the i Weroght saga ca., S A fivaths i* Mh te cont

cams. 1 fb ne anewee thal the part Poge Peabody” cannben gts ml

anveas. that the omens were sogtied ot oteymetoon

thed guilt was cleat. of that Hy pone a meet gealls wi

ae a poosssbeiler al rvvbstunnade miamibne © cremegh th

vitiate the prom codungs Ttaas Corton fee ea al tthe satin

tide wehon ie ono TRL Le LD Shr ee

logrnc tras Compan. Kewet Ru he *\ ae | ae

S341. S4he tm 4p 0b%et weth ‘ni >

1S She tt etd pat ly tia “testa 4

Toe 4) «fee Beem UR Gg ieee .

A heel casminateen atv sodeat what, pete’

tweoner s get tap cfeargesl .ctrepeets The oct toeeon thot

oune. ot all of thee genes prredeatele comhonet wf the

hater a” argttecradyange thaecen tes Gabe tac tree a tor

healing te fate \At OMe, tee oof py totes @ The "

Arh arnn lew teapuitedt thee he tet oft) Pee feo

clectims. defined a¢ thavee mtr tial pont theo eande

a . .

. °

Sehawee

poll’tar, pa the names of such persons were required to

he kept ina poll tax book’ where they were designated

fy tac. The gury fist itself indicated nace (Petituin for

Contronars, p 75h As recently as 1968, the Arkansas

Hs eRe nation statute was bemge enfotced, although |

declared-unconstitutienal in Lovee + Virgina, 88 UES

11196 See Nien e Peters US Distinct Court No

[Rohe 17% FD Ark, September 7S, 1968 tdeclaring

°° the Arthurs Matute arty alia at the behest Of a Negro man

“and a white, witmnan whe were demed martiage heense)

.* during the thirty two vers Haired ately preceding peter

toons tral, Arkupeas execs uted only | white man for

z pe w tik: erevuling 17: Negroes (Petition tor Centra

° 1) Surely. ne more extensive res umstun ferry

as the Arkon watal fabri of 14> ws needed tw show -

hat the vafiens freon Ph hh ~ tMioner squry was selected

and nm which Mt deckfed that he fics dic, was, af the

very feast. tolerant of the view that rape be a Negro was

a more hemos offenke than the same crime hy a white

that the lite fs Negro dete mfant 1s bese. precious than

that of 9 white. Not has ing bien Cohd otherwise by ‘the

= cerint. ot ts alteage thrive fikely that the pur imterpreted the

* _suibswvnpenen ot the death gern peste, wathent caprens

treetetae Theor as authdrisation To take tar antes accent

Thee hottest i Certainly af least as "great’ as the qhrnet

batons vt sions treed rstardonge pemafierty ange the decane

ited ater cn thy ASANTE boon teat a yte shah heat a

LO - one mt ion the defendant » Vathute te take.

the stand wilt feel authvinired to take at mie acounte *

qf d.eettin »” é Alife inet . ger i teade Vinderanal

i as We Conte. an Arh areas TULA wi La that ime

4, Porsible’ Consider, atheony oan ee ee

tfow serborrrencscors as fiver ite torbeestarding -weaht thaws

x >

been correct, for, in placing the issue of life or death in

-° the unrestricted discretion of the jury. the State of

Arkansas doce TAGE Me jury fo consider face, oF any

(+ other irrelevant of impermissible factors

Since. as we have pomted ‘out, powsibhe ‘ misunder-

standings of baste issues, attributable either to what the

jury was told orto what tt was nor told, suffice to

vitiate a garden vanefy of conviction, how can a wholly

different standard be apphed when a lite ts to be taken”

fhe only concenable distinction was rejected by this

. Court when it noted that while deciding between life or

death ts ;

.

different, in hind fronr a finding that the deferidant

committed a specified offense — . . this does not: .

mean that baste requirements of procedtiral fairness

can be ignored simply because the determination

mvolved in this case differs in some respects trom

the traditional assessment Of whether the defendant

e engaged in the proserbed conduct.” Wis frersprnnte

8 Ninos. wt Ss. S10, 523, ’ 3) ¢ $4Pe 3

In samply submitting the mssuc of life or death, without

comment, the tral cout, in the Contest and under the

circumstances, conveyed a gross misconception which

deprived petitioner of bqual Protection of the: liws anil

Accessarily voided bys death sentence

brent it be assumed. agaumt all the evatemee, that the

death penalty was not discriminatorily inthetyd upon:

petitiotier, Due Process compres, the intrendife tion af

protections agaist the apponent resh aw inh dis

etrmingtion |

9 «

Petitioner abundantly proved in the -Disfrict Court

that “Negro defendants who rape white victims have

been disporportionately sentenced to death by reason of

race, during the years 1945-1965 in the State of

Arkansas.” (Petitioner's Brief, p. 19), and the Court of

Appeals wenmied to agree. The statistics for the nation at

large Mtrongly imply that what is true in Arkansas is true

in the entire South (id. at’ 13-14). Accumulated experi-

ence and professional opinion is virtually unanimous,

moreover, that throughout the nation. “the death sen-

fence ts disproportionately imposed and carried out on

the poor, the Negro, and the’ members of unpopular

groups.” President's Commission on Law Enforcement

an’ Administration of Justice, Report (The ¢ halle nge of

Crime-im a r ree Society) (1967) 143 :

The Court of Appeals was wrong in holding that peti

toner was obliged to prove that his particular jury was

racially motivated, and that he fated to do so. Moreover,

no-such impossible burden: need be met to ¢stablish, at

vt very least, that there was a substantial risk that a

ally - uninstructed ry would: give vent to uamper-

Delbite passions and preyudices in IM posing the- death

cr It would be rank. hypocnsy to deny that such a

risk existed and was substantial Nothing more is needed

fo make if incumbent upon a court to take measures to

acumtergset the mk. Compare Nosth Carolina 3 Pearce.

7S LS TH 11969) where this Court recently heh

that ouplic it findings are essential to protect a defendant

against the appyent risk that his. sentesce might be

Masel UPON A IMpeTfossble consideration there

penalty fora prior appeal :

; i

Vtothe heart of our cemepts of Due Process and tay

trial ts the notion that dhe process must be so Structured

s

*

°

as to minimize passion. prejudice or corrupt motives as

ingredients of decision... Trials must not only be tain in

fact, they must appear fair as well, “Justice must satists

the appearance of justice.” Offutt United States, 348

US ib. 1401984) In re Murchison, 349 US 133. bo

(1955). See also, Estes rv Texas, 381 US. $32. S42

(1965) There are, mysrad cases in which this Court has

~ refused ‘to inquire behind the apparcit untairness of a

practice to see whether in the particular case actual

prejudice was effected. See..c eo Tames 1, One, 273

US. $10 61927) where the judge's financial interest (to

- the tune of S12) 1n the outcome of a case was enough to

invyahdate his judgment “Every procedure which would

offer a possible temptation to the aserige man met to’

‘hold the balance nice. clear and truce between the State

and the accused, denies the latter duc process of liw ”

(273 US at $32) A fine of $100 was involved 1

tortion, the substance and dppeanince of tamness ate

required where life is at stake.-not merely in the deter

mination of guilt and imnocence, but im the sentencing

procedure as well, Indeed, because there fs so tittle con

nechion between conviction and re death penalty tops

the sentencing process * which -particularty dermamds

adherence to fair procedures '

fhere are many casetin which thos Court has belt that

specific steps must be taken to ensute the farness and

protect the appearinge of harness of criminal toads

* The ides that Due Process invelves athinmative protec trys

‘measures wonothing new See ce. Meeps’ Mave!

WHATS BIR C1900, where the Court stated thot Din

Process requires trial palpes feo “take street cr@iscue tas

ensure that the balance ws cnesver weihed aediist the

al .

* ~

-

~

accused” there. by possibly prejudicial publicity: here.

we would argue. by the risk of race prejudice. Cf also

Spencer v. Texas, 388 US, 5S4. 01967) (instructions that

prior srimes, introduced pursuant to a recidivist statute,

coull” not be taken info account as to gilt). ‘

A system) which authorizes predominantly white.

middle class juries to mete out a death sentence to any-

one they convict of a so-called “capital” offense, for any

reason or for no reason. and which promises those juries

that they will never be compelled to reveal or to articu-

late their-reasons of lack of reasons, and which results in

the disproporvionate infliction of the death penalty on

Negroes, plain) tails in its duty both to be and to appear

fur Doe Proc&ss in its most elemental sense ts glaringly

denied |

Although about as likelv-as the moon’s being a mirage,

itis rhone the Iss possthle that no jury ever voted.to kill a

defendant because of the color of his skin, his social

status, OF his cconomie condition, Though every known

attempt of socal scentists ta determime the nexus

-between the death penalty and race in the American

South has tailed to exclude the link, though every known

stutesteal study’ shows a connection, though virtually all

students of the subject beheve that there 1s a4 causal fela-

thonehip.ctervbods fiat be wrong. I vervone may also

be wrong that propudicial pubhioity, as im She ppard, supra,

wreaks premdice The point is that so long as the data ts

suchas to peruade sirtually evervone who examines it

that potiwscure executing people because they are Negro,

Die Process demands that the sentencing process include

Hostess te commteniet the apparent csk oft unconstitit

trol his eeerneation Surely. the thelihood of sen

tomorow based apor aie reepeymissibbe Consideration hat

been far more clearly demonstrated in this case than it

was in Pearce, supra, where this Court relied mainly

upon the State's failure affirmatively to demonstrate a

proper basis. The Due Process need for prophylactic

rules requiring specific findings. as in Pearce, or.at least

instructions to the jury on permissibleand impermissible

consideration ‘follows a-fortion’ in this case. The awe-

some factor of death adds immeasurably to the need.

The State of California contends that “If Arkansas

jurors are. . . bent on racial discrimination, there is no

reason whatever to believe that they will be deterred in

carrying out such discrimination -by any instruction of

combination of instructions which a judge may read to

them.” (Brief of California Ann us Curiae, in Support of

_ Respondent, p. 26) Yet at-the very center of our jury

system is the assumption that instructions are followed.

Cf Spencer vy Texas, supra,.at 568 (1967). TE that

“assumption were abandoned, the entire system of jury

trials agd appellate review would lie without foundation

Furthermore, even if the Court, laying aside that basic

assumption underlying our jury system, were to sssume

that instructions to junes regarding the death pena'ty

would be ignored, Doe Process would nonetheless com

pelthe State of Arkansas to remove its onprimatir trom

the hiwless acts of its purtes.* Compare, Gaitfin os Call

forma, ASO US) O09, O14 C1965) TE Arkansas jurors

were told by the court, either expressly or by tau

Hphcation from cits submission of criteria, that they

could not kill on account of race, the Stite. would: at

least have obtained. at virtua ly no cost, some distance

from the susproon of discrimination When it tals to do

sO, Ho seems fo snany fan minded observers to comlone

racially motivated executions

13

The Arkansas procedure thus feeds the most corrosive

suspicions one can entertain about a legal system, surely

outranking, in its capacity to produce distrust and disre-

spect for law. the use of- forced confessions or illegal

searches to obtain convictions, and other practices which

this Court has condemned and for which it has fashioned

prophylatic rules to protect constitutional nghts.

-

.

1). ‘

The standards for imposition of the death penalty

which. Due Process and Equal Protection require are

readily available -

We have shown three wavs in which the. Arkansas:

delegation, without siandards, of the power to select a

few persons for capital punshment violites fundamental

consiitutional norms. The baste tgredient of standards

Which is absent trom the Cahtorma procedure Could

cusily be supplied The Model Penal C vule, ho e\ample,

which establishes prerequasite findings and enumerates

ugeravating and moitiating circumstances (Amercan baw

Institute, Model Penal Code, Section T1006. pp 128

b3S)) gives detimite standards and intonms the pv. bs

clear umpheation, that it may pot impose the death

penalty for any other reasons fot because of skin color

nor of socnkel sturmding. mor of eoomomn comditnon Baet

son Gatco, ths Courts not called upon to determine

What) the particular critena must be only that there

must be Soe Getimte criteria set by covery: State which

chooses toe autlhonive its putes fo select those bigtern

Whom Copital punestinent. os te be rinpased 5

THE SINGLE VERDICT PROCEDURE COMPOUNDS THI

VICES OF STANDARDLESS SENTENCING AND IMPOSES.

NEEDLESS AND IMPERMISSIBLE BURDENS ON THE RIGHT

1O A FAIR TRIAL ON THE ISSUR OF GUILT OR INNO

CENCE . ea : 3

As petitioner’ has amply shown (Petitioner's Briet at

pp 66-78). a defendant na capital case in Arkansas ts:

faced with aeogrists chowe — He ts permitted te adduce

mitigating evidence on the penalty question only at- the

price of surrendering tas right to full and fai tral on

_the issue of guilt and has right not to incriminate himselt

This is enough te invalidate the procedure “Yet the

chores are even grisher than petitioner suggests Tt an

Arkansas rape defendant really tears that tas tite wall ty

forfort ands bent on saving ihe may be well gydvised oot

merely to surrender his right not to testis and to lorege

the defense of consent and other trial rights, but alse te,

Vield his very neht to be treed Only by pleading guilt,

can he masimise bis cliadees of saving tis tit

Pven leaving out Of accteuit Cubby the Court stroked

- by no means dod the wikespread Practice of-gylty plea

bargaining, the Athansas, Metotvctaet whe pleads peralty

although oot therets sbaclutels ynrmunerine Peesedt con

absence of a plea leupain to that tte ct) trom the death

senfeme. asin € meted Vfates ) Fang Awe my tS 8

1VOND wall nonethetoss'havs pains hasel a ss mle ing hur

s

Whoo is cotirely um contaminated by the tral ot eudt

‘

- ” :

tt oan Aikhutiews vlets Thiet mis witty Tos ) LAL BL lrteernel

of a pur ter TAN thee emrtternge oe trnaticbetius Neweteg? 9 Niebiy -

Vk SOE SOP SWE ME GI se

one which hiopetully will Laer and ‘Saft hos niitigating ve

dence with a relatively s\ mpathetic ear The defendant :

who pleads wuilty will not. alter all, have “compounded *

His offence” by denying it - His ong and ons appearance:

“ hefore the qr will he in the role of a repe ntent sinner

The evide nee and arguments he adduces will ne be con

Pe rdited? watered down. confused. of compromised by

the trial ot-giilt ts chances of Living: mav be enhance cd

manvtohl The chotees open. and the pressures at work,

wre mot there hore ahitferent-in kind trom: those | in) Jacke nm -

Here. asin Juihein the procedure for asse sain the death —

_ penalty route sly Burntei the exerese, notonty a Pitre:

Vinemiment rigtits. Pat alse at the Sith Amendment

right thea tral on the questetn of gual): :

: se be

The © onrt’s recent decosfon mm Nort Cur may Pearce

me

seer Tea ree UT moe ot trestrhating the ev

erie of Constitutional carb ts (POISE Pressures to torepe

them tee Pane the Court pelt that the danger te the

trey ONer ore Of both, vorPet iy Crema and nanny Constitutional

Hiphets the Comstitutueial taht fe week a tau triad and

.

*

Ot Gs tt nee severe that the petite: resisted the jes

iT. MaeGa eT riphst to @ tread whch are wiberert on the Ark ares

“water Thy (Mr tah ee nenaes Tau. le re) ©) ws wih)

t ;

C2°S) | ath vwretyyl tbey by tHBEabeet fet wepevoviher brow Hapht taet bye

“ beatity whioh gs reanatin, wal Oe the theeat ot Comet thorecn vel

: Te oe Thr tiht SHIP ER ee WEFT FOUR ENS ‘4 staal the chete radars

w vn nil Ris ny NOR Ceo + Ayers SATE alent Wet Peatcnnl

A eT aking a apawoal whah was prrerebinc eal fey the

piek ys TP) at He sey! HHT ab a We eel Phil vel ta « Hivitea ©

Wes tra weiagal TNE bit es eee M Wael beAs Lie es that viel Rac

peeeat they wn /-— o wieder 5 tu 4 ae Pee, they why Was mld ving Seer

sey ett art ts pusfeertaal 4 they b ache ON hy beets Ps thy peenw aad

on My reael wittomay 4 Manwoll sae ily Nea © AY & SCHON

*

sre * pene” Fa tee + Was yes tgierteally .sMilamiimate Th sree ‘ ‘aal ‘lio e

South ary! te Lit se LLL P ’ : ol,

. .

lo’

the non-constitutional mpht te appeal or collateral attack.

inherent iii the possibility of a heavier sentence upon re

trial niust be minimized by pidicnal articulation of a bases

for any stich heavier sentence which evcludes perms

sible penalization bsphes findings were held necessary

fo assure prospective appellants oF petitioners that thes

run ne risk of he nie penalized lor the exerci of thei

rights.

Phe Arkansas capital defendant who resists the pres

sures to plead guilty faces a trial on the asstes of pout

and. if found guilty punishme nt wat whach he is. guaran:

teed both constitution, il cand) non constitiition, ilo rights

Bat given the unhonited capital sentencing dis retin con

terred by Arkansin hae he CACTOISES these runlits atlas

grave perl tle mis be ‘sentenced to death torany re ASOYn

the qiry chooses Cor for. different reasons’ the mnctividinal | _— 2

jurors Choose). and the reasons for his enhanced sentence

remanty stent, uncontrontable and unresewable : The tas

be sentenced to death because hy did not take the wit

ness stand or because Ie did take the stam (and chired

the proses tris Hot rape case Comsentedt of becauee by

ramed the detense at TPES ETEEN ovr bye uise the Cathet teu tis

dnedeed. every trial. decision: whether fey exercise tes

substantial cghts respuines a “press aad a gambh : Wtites

' Kalk, am, MARE dk a9e oSth Oi 1b) ut whiely the

Stakes are bis lite. fof the pars rinay chose te bel tien tare

prurstinnp tes yriatlits

Trite, evers teva crn the astie att gait ent tthe pewks pre thy

“chore ot tral tactios. bat the dete mbar ret phacedt on

the ditemna ob wy aking anountree clothe New the Cw

lina 'v Poares sep TES TN at Oa capeentinge fron We

cester y Conerestomer TTOD ME TEA TEN) foe wath on

| .

spect te ni the + defendant rows that the Wary. would:

by instruc Ted What fo ccomsider and often What wags to”

consrer See Griffin 1 Cahtornia waging But the At

ha nisats Singleswerdict stanchindbess api HW genteneimnp pro

‘ceeding itertwines and Contuses: the issues of guale and <

penalty white allowing the Naty tree re Wr to conde oe the

y as

>

detendant for uans reason at alll So that revt cirnly thy

capital-dedoadant: placed a position: Where tration th

isstic oO gilt Ceomthie ts woth frial con’ the Jisstic of penalty.

int ale HW) decd: On Tet be proceed an tevin these

} s }

Issties Te ts Comfronted with ohatces a bichenmtul the ex.

: efotwe se relisted of uarantegi) cathts while ton 2

: . : a)

. warned (hat the nes. as gree te make cheath the pn

‘ oh Oo. - :

Miro Vusthoe. Whack: stated) the pertiment. perm iples

\uy op Pans

JAD Stabe cannot permit apypeats i roma case

ertel “Gt OMe Sonne fanny Hithe. Wea ern bane at oom

‘ivted Wefendant te take on win can appeal! Bhat

weogehel pshaneeds fisrys iit Pred Oss of law. “AV ihe

- rhage Tern mt al PW stattites atch Is) wicks istic

romefe coed @rantine APP y His gent gevetlrer tak

rere’ Power gn appeal wohl be Comteans

Pooch Prasat by haw Pewee

Pee peeePeaerety: cael tircertarnty rake’

eo ttererrs To heme whe oer thy

here bewcn fe fetherw et waeudel they oye

Peetrest prenciptes af are priacess oT

' ‘Mint | CoPHO SEPT EEN bing! ibisaent.

.. : ‘=r as .

. i ; s : e

Mei hes attondted the: nwt deteny

1 ith sha torter beharey epee thhtpedt any

: : . °

. : Seats beeet it NI 17 a hha ses uty it

. >

e : shade ahel tea shor ats i! thy dy yids ran st th

y 4 thevsey co oetee Ney! t. \ty qi rr Mi '

4

.

oe

18

has pointed out, for the State to confront a defendant

with such a dilemma is “contrary to the very idea of.

government by law. It... create{s] doubt, ambiguity,

and uncertainty, making it impossible to know which one

of the two conflicting laws to follow”. Jbid. And what

Mr. Justice Black concluded in the context of a State’s

permitting appeals while at the same time taxing the exer- _

cise of the right to appeal is applicable here as well: : It

“violate[s] one of the first principles, of due process.”

Ibid. .

The similarity of this case to Jackson, Griffin, and - |

Pearce makes clear that petitioner, in asking the Court to

invalidate the standardless unitary trial as it exists in

Arkansas, asserts no novel principles. ‘He seeks only

plainly Warranted relief from a procedure which is

destructive of a constellation of well established and

most fundamental constitutional rights. ,

CONCLUSION

The decision of the Court of Appeals for the Eighth

Circuit should be reversed. :

_ Berl L. Bernhard George N. Lindsay

William T. Coleman, Sr: Burke Marshall

Samuel Dash _Monrad S. Paulsen

John W. Douglas Steven R. Rivkin .

Steven Duke - .Whitney North Seymour

William T. Gossett Jerome J. Shestack

John Griffiths Cyrus R. Vance

Mrs. Rita Hausér James Vorenberg

Weave Amici Curiae oer

19

CERTIFICATE OF SERVICE

I hereby certify that copies of the foregoing Brief for

the Amici Curiae have been served by mail, postage pre-

paid, this 24th day of October, 1969, upon counsel for

the respondent, Joe Purcell, Attorney General of Arkan-

sas, Department of Justice, Little Rock, Arkansas, 72201,

and on counsel for the petitioner, Michael Meltsner, 10

‘Columbus Circle, New York, New York, 10019.

Berl I. Bernhard