# Amicus Curiae Brief — Maxwell v. Bishop > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_1441%3A14 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1970 - **Citation:** 398 U.S. 262 ## Text 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_1441%3A14. Public record. Not legal advice.