Maxwell v. Bishop Motion to File and Petition for a Writ of Certiorari

    In the

(tort nt %
October Term, 1966 

Misc. No. / e > i ~ r

W illiam L. Maxwell,

— V .—

Petitioner,

0. E. B ishop, Superintendent,
Arkansas State Penitentiary,

Respondent.

MOTION FOR LEAVE TO FILE PETITION 
FOR A WRIT OF CERTIORARI

AND
PETITION FOR A WRIT OF CERTIORARI TO THE 

HONORABLE M. C. MATTHES, CIRCUIT JUDGE, 
UNITED STATES COURT OF APPEALS 

FOR THE EIGHTH CIRCUIT

J ack Greenberg 
J ames M. Nabrit, III  
Norman C. A maker 
M ichael Meltsner

10 Columbus Circle 
New York, New York 10019

George H oward, J r.
329% Main Street 
Pine Bluff, Arkansas

A nthony G. A msterdam 
3400 Chestnut Street 
Philadelphia, Pa. 19104

Attorneys for Petitioner



I N D E X

Motion for Leave to File Petition for a Writ of 
Certiorari ........ ............................ ....... ...... ................ . 1

Petition for a Writ of Certiorari to the Honorable 
M. C. Matthes, Circuit Judge, United States Court 
of Appeals for the Eighth Circuit ..... .............. ......  2

Citations to Opinions Below ..........................................  2

Jurisdiction .................. ........ ........................................ ......  3

Question Presented ........................................ ................ . 4

Constitutional and Statutory Provisions Involved .......  5

Statement ........................................................................    6

(1) Identification of the eases to be studied ____ 15

(2) Data concerning the critical variables (race
and sentence) and statistical analysis of the 
relationship between them ....................    16

(3) Data concerning “ control” variables ________  18

(4) Results and conclusions......................................  21

R easons foe Granting the W rit :

I. The Procedures by Which Petitioner’s Applica­
tions for a Certificate of Probable Cause and a 
Stay of Execution Were Disposed of Below Are 
Inconsistent With Statute and With the Fair 
Administration of Justice in Federal Habeas 
Corpus Proceedings ................................................  31

PAGE



PAGE

II. Petitioner Was Improperly Deprived of Access 
to the Court of Appeals, and Ultimately to This 
Court, on Issues of Substantial Merit and Vital 
Contemporary Importance ....................................  37

A. Petitioner’s challenge to unfettered jury dis­
cretion in capital sentencing raises substan­
tial issues ..... ...................... ........... ....................  44

B. Petitioner’s attack on Arkansas’ Single- 
Verdict Procedure raises substantial issues .. 50

C. Petitioner’s challenge to the racially discrim­
inatory application of the death penalty by 
Arkansas juries raises substantial questions .. 57

1. Standard of proof ......................... .............  60

2. Evaluation of the evidence ....................... 64

D. Petitioner’s claim that his conviction was 
unconstitutional because the Arkansas juror 
selection process provides the occasion for 
racial discrimination also presents a substan­
tial question ........................................................ 68

Conclusion ............................................................. ........ ........ 70

T able of A uthorities
Cases:

Anderson v. Martin, 375 U. S. 399 (1964) ................... 59
Andrews v. United States, 373 U. S. 334 (1963) ........... 52

Behrens v. United States, 312 F. 2d 223 (7th Cir. 1962) 53
Brown v. Board of Education, 347 U. S. 483 (1954) .... 58



Ill

PAGE

Brown v. Mississippi, 297 U. S. 278 (1936) ...................  42
Burton v. Wilmington Parking Authority, 365 II. S.

715 (1961) ......................................................................, 61
Burwell v. Teets, 350 U. S. 808 (1955) ..............................  3
Bush v. Kentucky, 107 U. S. 110 (1882) ......................  ■ 59

Chambers v. Hendersonville Board of Education, 364
F. 2d 189 (4th Cir. 1966) ........................................... . 61

Cline v. Frink Dairy Co., 274 U. S. 445 (1927) ............... 45
Coleman v. United States, 334 F. 2d 558 (D. C. Cir.

1964) ............................................................................... - 53
Connally v. General Construction Co., 269 U. S. 385

(1926) ...............................................................................  45
Coppedge v. United States, 369 U. S. 438 (1962) .......32, 33
Couch v. United States, 235 F. 2d 519 (D. C. Cir. 1956) 53
Cox v. Louisiana, 379 U. S. 536 (1965) ........................... 46

Dombrowski v. Pfister, 380 U. S. 479 (1965) ................... 46
Draper v. Washington, 372 U. S. 487 (1963) ............... 32

Eskridge v. Washington State Board of Prison Terms
and Paroles, 357 U. S. 214 (1958) ..............................  32

Eubanks v. Louisiana, 356 U. S. 584 (1958) .......... ...-......  61
Evans v. Newton, 382 U. S. 296 (1966) ......................... 61

Fay v. Noia, 372 U. S. 391 (1963) .................................. 45, 56
Ferguson v. Georgia, 365 U. S. 570 (1961) ................... 54
Fouquette v. Bernard, 198 F. 2d 96 (Denman, C.J.,

1952) ........................................ ......................................... 33
Fowler v. Rhode Island, 345 U. S. 67 (1953) ................... 58
Frady v. United States, 348 F. 2d 84 (1965) ............... 57
Freedman v. Maryland, 380 U. S. 51 (1965) ................... 45



IV

Gadsden v. United States, 223 F. 2d 627 (D. C. Cir.

PAGE

1955) .... .............................................................................  53
Giaeeio v. Pennsylvania, 382 U. S. 399 (1966) ....... 29, 34, 38,

46,47, 48
Gomillion v. Liglitfoot, 364 U. S. 339 (1960) ............... 61
Green v. United States, 313 F. 2d 6 (1st Cir. 1963) ....52, 54 
Griffin v. California, 380 U. S. 609 (1965) ...................53-54

.. 48 

.. 58 

.. 45 
59, 61 
.. 45 
52, 53 
..3,43

In re Burwell, 350 U. S. 521 (1956) ..............................  3
In re Shuttlesworth, 369 U. S. 35 (1962) ....................... 3
Irvin v. Dowd, 366 U. S. 717 (1961) ................. ....... .....  56

Jackson v. Denno, 378 U. S. 368 (1964) ........................... 55
Jenkins v. United States, 249 F. 2d 105 (D. C. Cir. 1957) 53 
Johnson v. Branch, 364 F. 2d 177 (4th Cir. 1966) .......  61

Lankford v. Gelston, 364 F. 2d 197 (4th Cir. 1966) ....42, 43
Louisiana v. United States, 380 U. S. 145 (1965) ........... 46
Lovely v. United States, 169 F. 2d 386 (4th Cir. 1948) 54

Malloy v. Hogan, 378 U. S. 1 (1964) ..............................  53
Marshall v. United States, 360 U. S. 310 (1959) ........... 54
Maxwell v. State, 236 Ark. 694 (1963) ........................... 3,7
Maxwell v. Stephens, 229 F. Supp. 205 (1964), aff’d 

348 F. 2d 325 (8th Cir. 1965), cert, denied, 382 U. S.
944 (1965) ....................... ........ ....................................... 3,8

Hague v. C. I. O., 307 U. S. 496 (1939) .... .
Hamilton v. Alabama, 376 U. S. 650 (1964) 
Henry v. Mississippi, 379 U. S. 443 (1965) 
Hernandez v. Texas, 347 U. S. 475 (1954) .. 
Herndon v. Lowry, 301 U. S. 242 (1937) .... 
Hill v. United States, 368 U. S. 424 (1962) 
House v. Mayo, 324 U. S. 42 (1945) ...........



V

Maxwell v. Stephens, Oct. Term 1965, No. 429 ...........  8
McLaughlin v. Florida, 379 U. S. 184 (1964) ................... 61
Mooney v. Holohan, 294 U. S. 103 (1935) ....................... 42
Moore v. Dempsey, 261 U. S. 86 (1923) ........................... 42
Moorer v. South Carolina, 4th Cir. No. 10,526 ..... .........  13

N.A.A.C.P. v. Alabama, 357 'U. S. 449 (1958) ...............  59
N.A.A.C.P. v. Button, 371 U. S. 415 (1963) ................... 45
Neal v. Delaware, 103 U. S. 370 (1881)  ......................... 59
Niemotko v. Maryland, 340 U. S. 268 (1951) ...............48,58
Norris v. Alabama, 294 U. S. 587 (1935) ....................... 61

Olmstead v. United States, 277 U. S. 43S (1928) ...........  42
Oyamav. California, 332 U. S. 633 (1948) ....................... 61

People v. Himes,------Cal. 2d------- , 390 P. 2d 398, 37 Cal.
Eptr. 622 (1964) .............................................................. 53

People v. Love, 53 Cal. 2d 843 (1960) ..........................  49
Phelper v. Decker, 35 U. S. L. Week 3138 (1966) ...........  44

Reece v. Georgia, 350 U. S. 85 (1955) ........................... 61
Rinaldi v. Yeager, 384 U. S. 305 (1966) ....................... 33
Rochin v. California, 342 U. S. 165 (1952) ................... 42

Sanders v. United States, 373 U. S. 1 (1963) .......36,69,70
Shelley v. Kraemer, 334 U. S. 1 (1948) ....................... 59
Shepherd v. Florida, 341 U. S. 50 (1951) ................    42
Sims v. Georgia, 384 U. S. 998 (1966) ...............10, 35, 68, 69
Skinner v. Oklahoma, 316 U. S. 535 (1942) .......... 48,50,52
Smith v. Cahoon, 283 U. S. 553 (1931) ..........................  45
Smith v. Texas, 225 F. Supp. 158 (S. D. Tex. 1963) .... 36

PAGE



VI

PAGE

Tigner v. Texas, 310 U. S. 141 (1940) ....... .......................  47
Townsend v. Burke, 334 U. S. 736 (1948)  .................... 56

United States ex rel. Rucker v. Myers, 311 F. 2d 311
(3d Cir. 1962) .......... ...... .......... ................ -....................  54

United States ex rel. Scoleri v. Banmiller, 310 F. 2d
720 (3rd Cir. 1962) ..........................................................  54

United States ex rel. Tillery v. Cavell, 294 F. 2d 12
(3rd Cir. 1961) ...... .............................-............................. 33

United States v. Beno, 324 F. 2d 582 (2d Cir. 1963) .... 54 
United States v. Curry, 358 F. 2d 904 (2d Cir. 1965) .... 57 
United States v. Johnson, 315 U. S. 714 (2d Cir. 1963) 53
United States v. National Dairy Prods. Corp., 372 U. S.

29 (1963) .......................................................................... 47

Watson v. City of Memphis, 373 U. S. 526 (1963) .......  58
Whitus v. Balkcom, 333 F. 2d 496 (5th Cir. 1964) .......  55
Williams v. New York, 337 U. S. 241 (1949) ....    51
Williams v. Oklahoma, 358 U. S. 576 (1959) ................... 51
Winters v. New York, 333 U. S. 507 (1948) ................... 45

Yick Wo v. Hopkins, 118 U. S. 356 (1886) ............... —48, 58

Statutes:
28 U. S. C. § 1651(a) (1964) ....................................... 1,3,43
28 U. S. C. § 2241(c) (3) (1964) ....................................  9

28 U. S. 0. §2251 (1964)....................................................  5

28 U. S. C. § 2253 (1964) ...... ............................5, 31, 32, 33, 36

42 U. S. C. § 1981 (1964) ............ ........................................ 58

Civil Rights Act of April 9, 1866, eh. 31, § 1, 14 Stat.
27 ...................-.......................................................... -.......  57



Enforcement Act of May 31, 1870, eh. 114, §§ 16, 18,
16 Stat. 140........................................................................ 57

Ark. Stat. Ann. § 3-118 ....................................................  6

Ark. Stat. Ann. § 3-227 ....... ................ -............................. 6

Ark. Stat. Ann. § 39-208 ....................................................  6

Ark. Stat. Ann. § 41-3403 ....... ........................................... 6

Ark. Stat. Ann. § 43-2153 ......... ....................................... 6, 7

Nevada Eev. Stat. § 200.360 (1963) ..................................  48

Other Authorities:

American Law Institute, Model Penal Code § 210.6 
(P. 0. D. May 4, 1962) ..................................................  49

American Law Institute, Model Penal Code, Tent. Draft 
No. 9 (May 8, 1959) .... ...................... -....... -............. 52,55

Cong. Globe, 39th Cong., 1st Sess. 475   ....................... 59

Cong. Globe, 39th Cong., 1st Sess. 1758 (1866) ........... 59

9 Crime and Delinquency 225 (1963) ..............................  37

Pairman, Does the Fourteenth Amendment Incorporate 
the Bill of Eights, 2 Stan. L. Eev. 5 (1949) ........... 57

Handler, Background Evidence in Murder Cases, 51 
J. Crim. L., Crim. & Pol. Sci. 317 (1960) ................... 52

H. L. A. Hart, Murder and the Principles of Punish­
ment: England and the United States, 52 NW. IT. L.
Eev. 433 (1957) .......................... ................................... 52

Hartung, Trends in the Use of Capital Punishment,
284 Annals 8 (1952) .... ........................................ 1..... -  37

Vll

PAGE



V l l l

PAGE

House of Commons Select Comm, on Capital Punish­
ment, Report (H. M. S. 0. 1930) para. 177 ............... 51

Knowlton, Problems of Jury Discretion in Capital 
Cases, 101 U. Pa. L. Rev. 1099 (1953) ....................... 52

Letter of Deputy Attorney General Ramsey Clark to 
the Honorable John L. McMillan, Chairman, House 
Committee on the District of Columbia, July 23, 1965, 
reported in New York Times, July 24, 1965, p. 1, col.
5 ......................... ...............................................................  37

Lewis, The Sit-In Cases: Great Expectations (1963)
S. Ct. Rev. 101 ..............................................................45-46

Mattick, The Unexamined Death 5 (1966) ................... 38

Newr York State Temporary Commission on Revision 
of the Penal Law and Criminal Code, Interim Report 
(February 1, 1963) ................................................ .........  52

Packer, Making the Punishment Fit the Crime, 77 
Harv. L. Rev. 1071 (1964) .... ......... ............................49, 50

Philadelphia Bulletin, Friday, July 1, 1966, p. 7, col. 6 37

Royal Commission on Capital Punishment, 1949-1953, 
Report (H. M. S. O. 1953) .......................................... 51-52

Sellin, The Death Penalty (1959) ..................................  37

tenBroek, Thirteenth Amendment to the Constitution 
of the U. S., 39 Calif. L. Rev. 171 (1951) ........ ..........  57

United States Dept, of Justice, Bureau of Prisons, 
National Px-isoner Statistics, No. 39, Executions 
1930-1965 (June 1966) ................................................ 37,41

Weihofen, The Urge to Punish 163-165 (1956) ...........  38



I n' the

GImtrt at tly? llmteft ^tatca
October T erm, 1966 

Misc. No..............

W illiam L. Maxwell,

Petitioner,

-v -

0. E. B ishop, Superintendent,
Arkansas State Penitentiary,

Respondent.

MOTION FOR LEAVE TO' FILE PETITION 
FOR A WRIT OF CERTIORARI

Pursuant to Rule 31(1) of this Court, William L. Max­
well, by undersigned counsel, respectfully moves the Court 
for leave to file the annexed petition for a writ of cer­
tiorari under 28 IT. S. C. § 1651(a) (1964). Contentions in 
support of the petition are included in the body of the peti­
tion, as required by the Rule.



2

PETITION FOR A WRIT OF CERTIORARI TO' THE
HONORABLE M. C. MATTHES, CIRCUIT JUDGE, 

UNITED STATES COURT OF APPEALS 
FOR THE EIGHTH CIRCUIT

Petitioner prays that a writ of certiorari issue to review 
the order of United States Circuit Judge,- M. C. Matthes, 
issued August 30, 1966, denying petitioner’s applications 
(1) for a certificate of probable cause to appeal to the 
United States Court of Appeals for the Eighth Circuit the 
denial of petitioner’s application for a writ of habeas 
corpus by the United States District Court for the Eastern 
District of Arkansas, and (2) for a stay of execution of 
petitioner’s sentence of death by electrocution, scheduled 
for September 2, 1966 (since stayed by Mr. Justice White 
pending the filing of this petition for certiorari).

Citations to Opinions Below

The opinion of the United States District Court for the 
Eastern District of Arkansas denying petitioner’s applica­
tion for a writ of habeas corpus, is reported at 257 F. Supp. 
710, and is set out in Appendix I hereto, p. la  infra. The 
last paragraph of that opinion, 257 F. Supp. at 721, p. 22a 
infra, recites that the District Court will not stay peti­
tioner’s execution and will not grant a certificate of prob­
able cause for appeal. The District Court’s orders denying 
the application for habeas corpus, and denying a certificate 
of probable cause and a stay of execution pending appeal 
are unreported and are set forth respectively at pp. 23a, 
24a, 25a infra.

The order of the Honorable M. C. Matthes, United States 
Circuit Judge, denying a certificate of probable cause and



3

a stay of execution is unreported and is set forth at 
p. 26a infra. No opinion was written by Judge Matthes 
in connection with this order.

Opinions at earlier stages of this proceeding are re­
ported. The opinion of the Supreme Court of Arkansas 
affirming petitioner’s conviction for the crime of rape and 
sentence of death is found sub nom. Maxwell v. State, 236 
Ark. 694, 370 S. W. 2d 113 (1963). Opinions on disposi­
tion of an earlier application for habeas corpus are found 
sub nom. Maxwell v. Stephens, 229 F. Supp. 205 (E. D, Ark. 
1964), aff’d 348 F. 2d 325 (8th Cir. 1965), cert, denied, 382 
U. S. 944 (1965).

Jurisdiction

The order of Judge Matthes denying a certificate of prob­
able cause and a stay of execution was entered August 30, 
1966. Petitioner’s execution was then set for September 2,. 
1966. On September 1, 1966 Mr. Justice White stayed 
execution of the death sentence pending the filing of the 
present petition for certiorari.

The jurisdiction of this Court is invoked under 28 U. S. C. 
§ 1651(a) (1964). Authorities sustaining the jurisdiction 
are House v. Mayo, 324 U. S. 42 (1945); Burwell v. Teets, 
350 U. S. 808 (1955), and In re Burwell, 350 U. S. 521 
(1956); In re Shuttlesworth, 369 U. S. 35 (1962). The de­
cision in House v. Mayo, supra, establishes that “ the relief 
sought is not available in any other court, . . . and cannot 
be had through other appellate processes,” within the mean­
ing of Rule 31(2) of this Court. Although the Court of 
Appeals for the Eighth Circuit possessed jurisdiction to 
issue a certificate of probable cause and to stay petitioner’s



4

execution following the denial of this relief by Circuit 
Judge Matthes, the time between the date of that denial 
(August 30) and petitioner’s scheduled execution (Septem­
ber 2) rendered it impossible for petitioner to obtain effec­
tive remedies in the Court of Appeals.

Question Presented

Petitioner, a Negro, was sentenced to death by the Ar­
kansas state courts upon his conviction for rape of a white 
woman. By application to a federal district court for a 
writ of habeas corpus, he challenged his conviction and 
death sentence on several federal constitutional grounds, 
including (a) the claim that Arkansas juries systematically 
discriminate against Negroes convicted of rape of white 
women in applying capital punishment for the crime of 
rape, (b) the claim that Arkansas procedures employed in 
his trial, under which the issues of guilt and of punishment 
are simultaneously submitted to the jury in a capital case, 
are unconstitutional because they deprive defendants of a 
fair trial on either issue, and compel election between the 
right of allocution and the privilege against self-incrimina­
tion, (c) the claim that Arkansas practice which permits a 
jury to impose a death sentence in its unlimited discretion, 
without legal standards of any sort, violates the rule of 
law embodied in the Due Process Clause of the Fourteenth 
Amendment, and (d) the claim that Arkansas statutes com­
pelling the selection of jurors from tax records identifying 
poll tax payers by race are unconstitutional by force of the 
Equal Protection Clause of that Amendment. Although



5

this Avas petitioner’s second application for the federal 
writ, the District Court exercised its discretion to enter­
tain the first three of these contentions on the merits; it 
declined to entertain the fourth. An evidentiary hearing 
Avas held, at which the testimony of tAvo expert Avitnesses 
and numerous exhibits offered by petitioner were received; 
and the writ was denied in a ten-page opinion, August 26, 
1966. A certificate of probable cause under 28 II. S. C. 
§ 2253 (1964) and a stay of execution pending appeal were 
denied with the notation that petitioner could apply to 
the court of appeals for relief. August 30, 1966, at a time 
when petitioner’s counsel had not yet been able to procure 
from the court stenographer a transcript of the hearing 
in the District Court, Circuit Judge Matthes denied appli­
cations for a certificate of probable cause and for a stay 
of petitioner’s execution, set for September 2, 1966.

Under these circumstances, did Judge Matthes err in 
denying petitioner’s applications for a certificate of prob­
able cause under 28 U. S. C. § 2253 (1964), and for a stay 
of the death sentence pending appeal under 28 U. S. C. 
§ 2251 (1964)?

Constitutional and Statutory Provisions Involved

1. The case involves the Due Process and Equal Pro­
tection Clauses of the Fourteenth Amendment.

2. It involves 28 U. S. C. §§ 2251, 2253 (1964), in per­
tinent part as f oIIoavs :

§ 2251. Stay of State court proceedings

A justice or judge of the United States before whom 
a habeas corpus proceeding is pending, may, before



6

final judgment or after final judgment of discharge, or 
pending appeal, stay any proceeding against the per­
son detained in any State court or by or under the 
authority of any State for any matter involved in the 
habeas corpus proceeding.

§ 2253. Appeal

In a habeas corpus proceeding before a circuit or 
district judge, the final order shall be subject to review, 
on appeal, by the court of appeals for the circuit where 
the proceeding is had.

An appeal may not be taken to the court of appeals 
from the final order in a habeas corpus proceeding 
where the detention complained of arises out of process 
issued by a State court, unless the justice or judge who 
rendered the order or a circuit justice or judge issues 
a certificate of probable cause.

3. The case also involves A rkansas Statutes A nnotated 
§§ 3-118, 3-227, 39-208, 41-3403, 43-2153. The text of these 
provisions is set forth in the Appendix hereto, pp. 28a- 
31a infra.

Statement

Petitioner, William L. Maxwell, a Negro, was tried in 
the Circuit Court of Garland County, Arkansas, in 1962 
for the rape of a 35-year old, unmarried white woman 
(App. p. la  infra). Pursuant to Arkansas statutes and 
practice, the issues of guilt and punishment were tried 
simultaneously and simultaneously submitted to the jury,



7

which was given no instructions limiting or directing its 
absolute discretion, in the event of conviction, to impose 
a life sentence (by returning the “ verdict of life imprison­
ment” authorized by A rk . S tat. A n n . § 43-2153 (1964 Repl. 
vol.), App. p. 31a infra) or a death sentence (which fol­
lows as a matter of course from the jury’s failure to 
return a verdict of life imprisonment) (App. p. 10a 
infra). The jury convicted petitioner of rape and failed 
to return a life verdict, whereupon he was sentenced to 
death. His motion for a declaration of the unconstitution­
ality of § 43-2153, the provision granting juries discretion 
in capital sentencing, on the grounds that Arkansas juries 
had followed a pattern of racial discrimination in the ap­
plication of the death penalty for rape, was overruled by 
the trial court. This contention was raised, together with 
numerous other federal and state-law claims, on his appeal 
to the Supreme Court of Arkansas. That court rejected 
the contention on the merits, taking the view that peti­
tioner’s then available evidence of racial discrimination— 
prison statistics showing 19 executions of Negroes for rape 
and one execution of a white for rape between 1913 and 
1960—failed factually to support the claim that Arkansas 
juries were acting discriminatorily, at least in the absence 
of “ evidence . . . even remotely suggesting that the ratio 
of violent crimes by Negroes and whites was different from 
the ratio of the executions.” Maxwell v. State, 236 Ark. 
694, 701, 370 S. W. 2d 113, 117 (1963). Finding petitioner’s 
other claims of error also without merit, the court affirmed 
his conviction and death sentence. No petition for certiorari 
was filed here seeking review of that decision.

In 1964 petitioner filed an application for federal habeas 
corpus, raising among other contentions the claims (a) that



the Equal Protection Clause of the Fourteenth Amendment 
was violated by his death sentence pursuant to a practice 
of systematic racial discrimination in the exercise of capi­
tal sentencing discretion by Arkansas juries; (b) that the 
Due Process Clause and its incorporated prohibition of 
cruel and unusual punishment were violated by the imposi­
tion of the death penalty for rape; and (c) that the Equal 
Protection Clause was violated by the systematic exclusion 
of Negroes from his trial jury, in particular because the 
jurors had been selected under Arkansas statutory pro­
cedures by reference to poll tax books in which racial iden­
tifications were required by law. In support of the first of 
these claims, he presented testimony of state officials of 
three Arkansas counties (Garland, Jefferson and Pulaski) 
regarding the races of defendants and complainants in rape 
cases in those counties during the period 1954-1964. This 
evidence disclosed only three death sentences for rape, two 
imposed upon Negro defendants convicted of rape of white 
complainants, one upon a white defendant. The evidence 
also showed that in the three counties whites were more 
frequently charged with rape than Negroes (by a ratio of 
about 3:2) and were convicted of rape with exactly iden­
tical numerical frequency. (For a description of the evi­
dence, see Petition for certiorari, Maxwell v. Stephens, 
0. T. 1965, No. 429, pp. 13-17.) The district court found 
that no sufficient showing of racial discrimination in capital 
sentencing had been made and, rejecting petitioner’s other 
federal contentions on the facts and the law, denied the 
writ. Maxwell v. Stephens, 229 F. :Supp. 205 (E. D. Ark. 
1964). The Court of Appeals for the Eighth Circuit af­
firmed, with one judge dissenting on a ground not now rele­
vant. 348 F. 2d 325 (1965). This court denied certiorari. 
382 U. S. 944 (1965).



9

July 21, 1966 the present (petitioner’s second) applica­
tion for federal habeas corpus was filed, invoking the 
jurisdiction of the district court under 28 U. S. C. § 2241 
(c)(3 ) (1964). It raised the contention, previously made 
on direct appeal and in the first habeas proceeding, that his 
death sentence denied him the equal protection of the laws 
because Arkansas juries, in the exercise of their statutory 
discretion to sentence for rape, were applying the death 
penalty discriminatorily against Negro defendants con­
victed of rape of white complainants. The petition alleged 
that new evidence had become available on this issue since 
the disposition of his prior habeas appeal by the court of 
appeals: specifically, a systematic study of Arkansas rape 
convictions during a twenty-year period had been “ con­
ducted in the summer of 1965, as part of a study of the 
application of the death penalty for rape in eleven southern 
states. This comprehensive study required the work of 28 
law students throughout the summer, the expenditure of 
more than $35,000 and numerous hours of consultative time 
by expert criminal lawyers, criminologists and statisticians. 
Petitioner, who is an indigent, could not have himself at 
any time during the prior proceedings in his cause con­
ducted such a study.” (Petition, para. 7(b). [The study 
is described in detail at pp. 13-21, 22-25 n. 7 infra]). 
The petition raised two related claims, not previously 
made: that Arkansas’ “ single-verdict” procedure for cap­
ital sentencing, under which the issues of guilt and pun­
ishment are simultaneously tried and submitted to the 
trial jury, is federally unconstitutional because it deprives 
the defendant of a fair trial on either issue and compels 
his election between his right of allocution and his privi­
lege against self-incrimination; and that Arkansas’ prac­
tice of allowing juries absolute, uncontrolled, standardless



10

discretion to sentence to life or death affronts the funda­
mental rule of law expressed by the Due Process Clause. 
It also raised a fourth contention, made in the previous 
habeas corpus petition but now renewed in light of this 
Court’s grant of certiorari on the point in Sims v. Georgia, 
384 U. S. 998 (1966): that selection of petitioner’s petit 
jury on the basis of racially segregated taxpayer rolls vio­
lated his rights to color-blind jury selection under the Equal 
Protection Clause (Petition, paras. 7-9).

By pretrial conference order dated August 5, 1966, Chief 
Judge Henley set the petition for hearing August 22, speci­
fying that evidence would be taken on the claim of racial 
discrimination in capital sentencing. Advised that peti­
tioner’s evidence on this issue would consist in part 
of “ the testimony of Dr. Marvin E. Wolfgang, a crim­
inologist and statistician on the faculty of the University 
of Pennsylvania, and . . . certain studies and a report made 
by Professor Wolfgang” which in turn were based upon 
“ Basic data . . . gathered by law student field workers 
from various sources and . . . recorded on individual case 
schedules,” the court made provision in its order for pro­
cedures to facilitate the establishment of “ the validity and 
accuracy of the individual case schedules” d

1 The “ individual case schedules” referred to are the completed 
forms, for each case of conviction of rape, of the printed schedule 
captioned “ Capital Punishment Survey” admitted as Petitioner’s 
Exhibit P-2 (Tr. 57). The use of this printed schedule in the 
process of data-gathering was explained by Dr. Wolfgang at 
Tr. 22-25. Instructions given the field researchers in use of the 
schedule are included in the record as an exhibit, Petitioner’s P-3 
(Tr. 25-27, 57), but, in view of the respondent’s concession that 
the facts gathered by the researchers were accurate, see text infra, 
no effort was made in the testimony to demonstrate the steps 
taken in gathering the data to assure reliability. See Tr. 25-27. 
Also, in light of the court’s pretrial conference order, text infra, 
the completed “ individual case schedules” were not introduced in 
evidence.



11

It was agreed that counsel for Maxwell will make 
those schedules available for the inspection of counsel 
for Respondent not later than August 10 and will also 
furnish the names and addresses of the field workers 
who assembled the original data in Arkansas. Not 
later than August 15 counsel for Respondent will ad­
vise opposing counsel and the Court as to whether, 
to what extent, and on what grounds he questions any 
individual case schedule.

Subject to objections on the ground of relevancy 
and materiality, and subject to challenges to individual 
case schedules, Professor Wolfgang will be permitted 
to testify as an expert witness and to introduce his 
report as a summary exhibit reflecting and illustrating 
his opinions. Again subject to objections or challenges 
to individual schedules there will be no occasion for 
Petitioner to introduce the schedules in evidence or 
prove the sources of the information reflected thereon 
or therein, or to call the individual field workers as 
witnesses (Pre-Trial Conference Order, p. 4).

Under the pre-trial order, the case came on for hearing 
August 22. At the outset, counsel for petitioner announced 
that no objections had been filed by the respondent to any 
of the individual case schedules, so that “ all of the facts in 
the schedules are treated as though they are true, and Dr. 
Wolfgang’s testimony is to be treated as though based 
not on schedules, but on facts which are established of 
record . . . .  As I understand it, the basic facts on Avhich 
Dr. Wolfgang’s testimony and his analysis are made are 
treated as established for the purpose of this case” (Tr. 8). 
Counsel for respondent and the court agreed with this 
statement (Tr. 8-9), the court settling that:



12

The basic facts—that is, the age of the victim, the 
race, and so on, of the individual defendants, or the 
alleged victims— the basic evidentiary facts, as the 
Court understands it, stand admitted, and that Dr. 
Wolfgang in testifying, or anybody else who testifies 
about these basic figures, will not be faced with an 
objection as to the authenticitv of his basic data (Tr. 
9).

On this understanding, Dr. Marvin E. Wolfgang was 
called as a witness for petitioner. In its written opinion, 
the district court termed him a “ well-qualified sociologist 
and criminologist on the faculty of the University of Penn­
sylvania” and noted that his “ qualifications to testify as 
an expert are not questioned and are established” (257 
F. Supp. at 717-718, App. p. 14a infra).2 Dr. Wolfgang’s 
testimony occupies some ninety pages of the transcript 
of the hearing (Tr. 10-99); in addition, “ a written report 
prepared by him, together with certain other relevant docu­
mentary material, was received in evidence without objec­
tion” (257 F. Supp. at 718, App. p. 14a infra). The writ­
ten report referred to, Petitioner’s Exhibit P-4, was re­
ceived as substantive evidence (Tr. 57), and will be relied 
upon together with Dr. Wolfgang’s testimony in the sum­
mary of evidence that follows.

The district court’s opinion fairly summarizes the “ back­
ground facts of the Wolfgang study” :

2 Interrogation of Dr. Wolfgang establishing his qualifications is 
at Tr. 10-14. In addition, Petitioner’s Exhibit P-1, a curriculum 
vitae of Dr. Wolfgang, was received in evidence to establish his 
qualifications, Tr. 14-16. Dr. Wolfgang is one of the foremost 
criminologists in the country.



13

In. early 1965 Dr. Wolfgang was engaged by the 
NAACP Legal Defense and Educational Fund, Inc. to 
make a study of rape convictions in a number of south­
ern States, including Arkansas, to prove or disprove 
the thesis that in those States the death penalty for 
rape is disproportionately imposed upon Negro men 
convicted of raping white women. Dr. Wolfgang was 
apprised of the fact that the results of his study might 
well be used in litigation such as the instant case.3

As far as Arkansas is concerned, Dr. Wolfgang 
caused Mr. John Monroe, a qualified statistician, to 
select a representative sample of Arkansas counties 
with reference to which the study would be made. The 
sample drawn by Mr. Monroe, who testified at the hear­
ing, consisted of 19 counties in the State.

During the summer of 1965 law students interested 
in civil rights problems were sent into Arkansas to 
gather basic data with respect to all rape convictions 
in the sample counties for a period beginning January 
1, 1945, and extending to the time of the investigation. 
Data obtained as to individual cases were recorded on 
individual case schedules. When the work was com­
pleted, the individual schedules were turned over to 
Dr. Wolfgang for evaluation.

The investigation brought to light 55 rape convic­
tions during the study period involving 34 Negro men

3 The general scope of the study, which gathered data concerning 
every case of conviction for rape during a 20-year period in 250 
counties in eleven States, is described more fully in the affidavit 
of Norman C. Amaker, Esq., attached as Exhibit 2 to the petition 
for habeas corpus. For another description, see the Memorandum 
and Order, dated July 18, 1966, appended to the opinion in 
Moorer v. South Carolina, 4th Cir., No. 10,526, decided Septem­
ber 26, 1966.



14

and 21 white men. The offenses fell into three cate­
gories, namely: rapes of white women by Negro men; 
rapes of Negro women by Negro men; and rapes of 
white women by white men. No convictions of white 
men for raping Negro women were found (257 F. 
Supp. at 718, App. pp. 15a, 16a infra).

The design of the investigation was described by Dr. 
Wolfgang as a function of its objectives “ to collect the 
appropriate kind of data necessary to provide some kind 
of empirical study, either in support of, or in rejection of, 
the underlying assumption” (Tr. 17)—i.e., that there is 
racially differential imposition of the death penalty for 
rape in the States studied (Tr. 16-17)— and “ to give the 
empirical data the appropriate kind of statistical analysis 
that would satisfy scientific requirements” (Tr. 17). The 
basic research methodology involved these several stages: 
(1) identification of the cases to be studied; (2) collection 
of data concerning the critical variables (race of defendant, 
race of victim, sentence imposed) in each case, and statis­
tical analysis of the relationship between these variables; 
(3) collection of data concerning other variables (“ control” 
variables) in each case, and statistical analysis of the rela­
tionship between each such variable and the critical varia­
bles (race and sentence) to determine whether the opera­
tion of the control variables could explain or account for 
whatever relationship might be observed between the crit­
ical variables; (4) reporting of results of the analysis. 
It is convenient to summarize the evidence presented to the 
district court under these four heads, with respect to the 
Arkansas study. Such a summary can only imperfectly por­
tray the character and range of the Wolfgang study. We 
respectfully invite the Court’s attention to the whole record 
of the hearing below.



15

(1) Identification o f the cases to be studied.

Data were gathered concerning every case of conviction 
for rape during a 20-year period (January 1, 1945 to the 
summer of 1965) in a representative sample of Arkansas 
counties (Tr. 21). Two points should be noted here.

First, because the study begins with cases of conviction 
for rape, it addresses itself at the outset to the possibility 
suggested by the Supreme Court of Arkansas on the direct 
appeal in petitioner’s case, supra, that any showing that 
Negroes are more frequently sentenced to death for rape 
than whites might be accounted for by the supposition 
Negroes commit rape, or are convicted of rape, more fre­
quently than whites. What is compared in this study is the 
rate of capital sentencing of Negro and white defendants 
all of whom have been convicted of rape.

Second, in order to give a valid basis for generalization 
about the performance of Arkansas juries, every case of 
conviction for rape in a randomly selected sample of Arkan­
sas counties was included in the study (Tr. 62-63). The 
county sampling procedure was employed because resources 
available for the field study did not permit the gathering 
of data in every county in the State (Tr. 21, 107-111), and 
because it is “ unnecessary to collect every individual case, 
so long as the sample is presumed to be a valid representa­
tion—a valid representative one” (Tr. 21). At Dr. W olf­
gang’s request, a stratified random sample (Tr. 128) of 
Arkansas’ 75 counties was drawn by Mr. John Monroe, a 
“ qualified statistician,” 257 F. Supp. at 718, App. p. 15a 
infra, with seventeen years experience in sampling and 
surveys (Tr. 106).4 Testifying below, Mr. Monroe described

4 Mr. Monroe’s qualifications appear at Tr. 104-106. His biog­
raphy, in summary form, was admitted as Petitioner’s Exhibit 
P-10 (Tr. 144-145).



16

in detail the sampling process used (Tr. 107-141) to draw 
counties “ in such a manner that the sample counties within 
each state would provide a representative sampling for 
that state so that inferences could be drawn for each state 
in the sample and for the region as a whole” (Tr, 107). 
Nineteen counties in the State (Tr. 28, 118; 122-123; Peti­
tioner’s Exhibit P-5, appendices C, D ; Petitioner’s Exhibit 
P-7) containing more than 47 per cent of the total popula­
tion of Arkansas (Petitioner’s Exhibit P-4, p. 1; Tr. 130) 
were drawn by a “ theoretically unbiased” random method 
(Tr. 118). Mr. Monroe testified that “ a sample is the 
procedure of drawing a part of a whole, and if this 
sample is drawn properly according to the law of chance, 
or with known probability, by examining a small part of this 
whole, and using the appropriate statistical methods, one 
can make valid inferences about the whole population from 
examining a small part” (Tr. 116). He concluded that 
his own sample of Arkansas counties “ is a very reliable 
sample under the restrictions that we were confined to, the 
number of counties that could be investigated during the 
time allotted. In other words, for the size of the sample, 
the 19 counties, it was a very reliable and highly acceptable 
sample insofar as sampling statistics are concerned” (Tr. 
118; see also Tr. 130, 132). “ I would say that, as far as 
the sample is concerned, the inferences drawn from this 
sample, as described, are valid for the State of Arkansas” 
(Tr. 135).

(2) Data concerning the critical variables (race and sentence) 
and statistical analysis o f the relationship between them.

For each individual ease of conviction of rape, data were 
gathered as to race of defendant, race of victim, and sen­



17

tence imposed (Tr. 28-30).5 Using approved statistical tech­
niques, analysis was performed to determine the relation­
ship among these variables (Petitioner’s Exhibit P-4, pp. 
2-4). Briefly, the analysis involved these steps: (a) erec­
tion of a scientifically testable “null hypothesis” “ asserting 
there is no difference in the distribution . . .  of the 
sentence of death or life imprisonment imposed on Negro 
or white defendants” (Tr. 30-31; see also Tr. 31-32); 
(b) calculation of a “ theoretical or rejected frequency” 
(Tr. 33) which represents the number of Negro defendants 
and the number of white defendants (or, more specifically, 
the number of Negro defendants convicted of rape of white 
victims, and of all other defendants) who would be expected 
to be sentenced to death if the null hypothesis (that sen­
tence is not related to race) were valid (Tr. 32-33); (c) com­
parison of this “ theoretical or rejected frequency” with the 
frequency of death sentences actually observed in the col­
lected data for each racial combination of defendants and 
victims; and (d) determination whether the discrepancy 
between the expected and observed frequencies is sufficiently 
great that, under generally accepted statistical standards, 
that discrepancy can be said to be a product of the real 
phenomena tested, rather than of the operation of chance 
within the testing process, sampling, etc. (Tr. 33-37). “ If 
that difference reaches a sufficiently high proportion, suffi­
ciently high number, then the assertion can be made, using 6

6 The sources from which these data, and other data relating 
to the individual eases of rape conviction studied, were obtained 
is described in detail in Petitioner’s Exhibit P-3, pp. 1-6. See 
note 7 infra. Because the accuracy of all the basic data was con­
ceded by the respondent below, see text supra, methods of data 
collection and data sources were not developed at the hearing, 
and Exhibit P-3 was put in merely for the information of the court.



18

again the traditional cut-off point,6 that the difference is 
significant and could not have occurred by chance” (Tr. 34). 
The result of this analysis, then, is the determination 
whether there is a relationship or “ association” between 
Negro defendants convicted of rape of white victims and 
the death sentence imposed by Arkansas juries; and if so, 
whether that relationship or association is “ significant” in 
the statistical sense that the possibility of its occurrence 
by chance is so slight as properly to be discounted. (See 
Petitioner’s Exhibit P-4, pp. 2-4.) (As we shall see infra, 
such a relationship, showing disproportionately frequent 
death sentencing of Negroes convicted of rape of white 
victims, was in fact established by the data.)

(3) Data concerning “ control”  variables.

Data gathering did not stop, however, with the facts of 
race and sentence. As explained by Dr. Wolfgang, data 
were collected on numerous other circumstances attending 
each case of conviction for rape that “ were felt to be rele­
vant to the imposition of the type of sentence” (Tr. 40). 
These data were sought by the exhaustive inquiries that 
occupy 28 pages of small type on the data-gathering form 
that is Petitioner’s Exhibit P-2—inquiries concerning the 
defendant (age; family status; occupation; prior crim- 6

6 Dr. Wolfgang explained in considerable detail the procedures 
by which relations among items of observed data are tested sta­
tistically for reliability, “not only in sociology and social sciences, 
but other disciplines as well, . . . such as medical research” 
(Tr. 36). The basic procedure used in the present study—the 
chi-square method of statistical analysis and the traditional meas­
ure of statistical “ significance” which treats as real observed 
relationships that could not have occurred more than five times 
out of one hundred by chance (expressed in the formula P <  .05) — 
are described at Tr. 33-37, with explication of these matters by 
reference to the familiar example of head-or-tail coin tossing.



19

inal record; etc.), the victim (age; family status; occu­
pation; husband’s occupation if married; reputation for 
chastity; etc.), defendant-victim relationship (prior ac­
quaintance if any, prior sexual relations if any, manner in 
which defendant and victim arrived at the scene of the 
offense), circumstances of the offense (number of offenders 
and victims; place of the offense; degree of violence or 
threat employed; degree of injury inflicted on victim if any; 
housebreaking or other contemporaneous offenses com­
mitted by defendant; presence vel non at the time of the 
offense of members of the victim’s family or others, and 
threats or violence employed, or injury inflicted if any, 
upon them; nature of intercourse; involvement of alcohol 
or drugs, etc.), circumstances of the trial (plea; presenta­
tion vel non of defenses of consent or insanity; joinder of 
defendant’s rape trial with trial on other charges or trial 
of other defendants; defendant’s representation by coun­
sel (retained or appointed) at various stages of trial and 
sentencing; etc.), and circumstances of post-trial proceed­
ings if any.

The district court aptly characterized these factors as 
“ Generally speaking, and subject to certain exceptions, 
. . . variables . . . which reasonably might be supposed to 
either aggravate or mitigate a given rape” (257 F. Supp. 
at 718 n. 8, App. p. 16a n. 8 infra). Their exhaustive scope 
appears upon the face of Petitioner’s Exhibit P-2, and from 
Dr. Wolfgang’s testimony: “ The principle underlying the 
construction of the schedule [Petitioner’s Exhibit P-2] was 
the inclusion of all data that could be objectively collected 
and transcribed from original source documents that were 
available to the investigators—the field investigators— such 
as appeal transcripts, prison records, pardon board records,



20

and so forth, and whatever was generally available was in­
cluded. In this sense, it was a large eclectic approach that 
we used for the purpose of assuring ourselves that we had 
all available data on these cases” (Tr. 96-97; see also 
Tr. 65-70). Dr. Wolfgang conceded that some data poten­
tially pertinent to sentencing choice were not collected— 
for example, strength of the prosecution’s case in each in­
dividual rape trial—but explained that this was because 
such items were not information “ that we could objectively 
collect” (Tr. 97).

The pertinency of these data to the study was that some 
of the many circumstances investigated, “ rather than race 
alone, may play a more important role in the dispropor­
tionate sentencing to death of Negro defendants convicted 
of raping white victims” (Tr. 40).

“ These factors, not race, it could be argued, may be 
determining the sentencing disposition; and Negroes 
may be receiving death sentences with disproportionate 
frequency only because these factors are dispropor­
tionately frequent in the case of Negro defendants. 
For example, Negro rape defendants as a group, it may 
be contended, may employ greater violence or do 
greater physical harm to their victims than do white 
rape defendants; they may more frequently be repre­
sented at their trials by appointed rather than retained 
counsel, and they may more frequently commit con­
temporaneous offenses, or have a previous criminal 
record, etc.” (Dr. Wolfgang’s written report, Peti­
tioner’s Exhibit P-4, p. 5.)

In order to determine whether the control variables ex­
plained or accounted for the racial disproportion in death



2 1

sentencing, analysis had to be made of the relationship be­
tween each such factor for which data were available and 
sentence on the one hand, race on the other. Dr. Wolfgang 
explained that no variable could account for the significant 
association between Negro defendants with white victims 
and the death sentence unless that variable “was signifi­
cantly associated with the sentence of death or life” (Tr. 
41), and unless it also was significantly associated with 
Negro defendants convicted for rape of white victims (Tr. 
41-42).

A  variable, even though associated with such Negro de­
fendants (i.e., found disproportionately frequently in their 
cases), could not furnish a non-racial explanation for their 
over-frequent sentence to death unless it was itself affect­
ing the incidence of the death sentence (as evidenced by 
its significant association with the death sentence) (see, 
e.g., Tr. 45-46); while a variable which was not associated 
with Negro defendants convicted of rape of white victims 
could also not explain the frequency with which they, as a 
class, were sentenced to death (e.g., Tr. 49-52). (See gen­
erally Petitioner’s Exhibit P-4, pp. 6-7.)

(4) Results and conclusions.

Based on his study of the data gathered for the past 
twenty years in the State of Arkansas, Dr. Wolfgang con­
cluded categorically that “ compared to all other rape defen­
dants, Negroes convicted of raping white victims were 
disproportionately sentenced to death.'’ (Dr. Wolfgang’s 
written report, Petitioner’s Exhibit P-4, p. 8, para. 3 
(original emphasis).) “We found a significant association 
between Negro defendants having raped white victims and 
the disproportionate imposition of the death penalty in



22

comparison with other rape convictions” (Tr. 52; see also 
Tr. 37-39). Indeed, the disparity of sentencing between 
Negroes with white victims and all other racial combina­
tions of convicted defendants and victims was such that 
it could have occurred less than twice in one hundred times 
by chance (Tr. 37-38)— i.e., if race were not really related 
to capital sentencing in Arkansas, the results observed in 
this twenty-year study could have occurred fortuitously 
in two (or less) twenty-year periods since the birth of 
Christ. Thus, the Wolfgang study for the first time docu­
ments the discrimination which previously available data— 
not collected systematically or in a form permitting rigor­
ous scientific analysis— could only suggest: for example, 
the Federal Bureau of Prisons’ National Prisoner Statis­
tics for executions during the period 1930-1962 (Petitioner’s 
Exhibit P-6, Tr. 99-101), which disclose that more than 
nine times as many Negroes as whites were put to death 
for rape during this period in the United States, although 
the numbers of Negroes and whites executed for murder 
were almost identical.

A considerable part of Dr. Wolfgang’s testimony was 
addressed to the question whether this disproportion could 
be explained away or accounted for by the operation of 
other, non-racial (“ control” ) variables. He testified that 
after the Arkansas data were collected, he considered and 
subjected to analysis every such variable or factor about 
which sufficient information was available to support scien­
tific study (Tr. 56, 64-65, 78-80, 97). With respect to a 
substantial number of the variables investigated by the field 
researchers, their exhaustive exploration7 failed to provide

7 By reason of the court’s pre-trial order and respondent’s con­
cession under the procedures fixed by that order that the responses 
recorded by the field researchers on the individual case schedules



enough information for study. (E.g., victim’s reputation 
for chastity, Tr. 79.) Notwithstanding respondent’s pre­
trial concession of the accuracy of the field researchers’

(see note 1, supra) were accurate (see pp. 11, 12 supra) peti­
tioner did not present in any systematic fashion below testimony 
relating to the data-gathering procedures. The concession, of 
course, included the accuracy of the response “unknown” wherever 
that appeared on a schedule, and—as counsel for petitioner pointed 
out below, without disagreement from respondent or the court— 
the response “unknown” “means that research, using the State’s 
records and using all of the resources that we have poured into 
this case, is unable to make any better case than this” (Tr. 155- 
156). The nature of the research effort involved is indicated by 
Petitioner’s Exhibit P-3 (Tr. 25-27, 57), the instructions _ to the 
field researchers. Those instructions include the following, at 
pp. 4-6:

Whether the work is done by a single researcher or divided 
among more than one, the course of investigation of any 
specific case will ordinarily involve the following steps:

(1) Inspection of the county court docket books for entries 
relating to the case.

(2) Inspection of all other records relating to the case 
available at the county court: file jackets, transcripts, witness 
blotters, letter files, pre-sentence reports.

(3) Inspection of appellate court records in any case where 
appeal was taken. Appellate court records include the docket 
of the appellate court, its file jacket, record on appeal (if 
maintained on file in the appellate court), court opinion or 
opinions if any, and appellate court clerk’s letter file.

(4) Inspection of prison records of the defendant if he 
was incarcerated in a prison which maintains records.

(5) Inspection of pardon board records in any case where 
the defendant submitted any application for executive 
clemency.

(6) If the foregoing sources fail to provide sufficient in­
formation to complete the schedule on the case, interview 
of defense counsel in the case.

(7) If the foregoing sources fail to provide sufficient in­
formation to complete the schedule on the case, inspection of 
local and area newspaper files for items pertaining to the case.

Three general directives should be kept in mind:
(A ) We are concerned with the sentencing decision, in each 

case, of a particular official body at a particular time (i.e.,



24

responses on the individual case schedules, including the 
response “ unknown” where that appeared (see note 7 
supra), counsel for respondent attempted to suggest in

the trial judge or jury; the pardon board). Every such body 
acts— can act—only on the facts known to it at the time it 
acts. For this reason, the “ facts” of a case called for by the 
schedule mean, so far as possible, the facts perceived by the 
sentencing body. Facts which we know to have been known to 
the sentencing body are preferred facts, and sources which 
disclose them are preferred sources. (A trial transcript, where 
it exists, is therefore the most desirable source of facts.) 
Other sources are of decreasing value as the likelihood de­
creases that the facts which they disclose were known to the 
sentencing body. (A newspaper story which purports to report 
trial testimony, therefore, is to be preferred to one which 
purports to report the facts of the offense on the basis of 
other sources of information.)

(B) After this survey is completed, its results will be made 
the basis for allegations of fact in legal proceedings. If the 
allegations are controverted, it will be necessary to prove them, 
and the proof will have to be made within the confines of 
ordinary evidentiary rules, including the hearsay principle, 
best evidence rule, etc. For this reason, sources of facts which 
are judicially admissible evidence to prove the facts which 
they disclose are preferred sources. Official records are most 
desirable in this dimension; then the testimony of witnesses 
having knowledge of the facts (for example, defense counsel), 
finally, secondary written sources (for example, newspapers). 
Wherever an official record or document may contain per­
tinent information, inspect it yourself if you can; don’t take 
somebody’s word for what is in it.

(C) Many of the facts you need to know will have been 
contested in the judicial and post-judicial proceedings leading 
to a defendant’s sentence and its execution. We have no 
method for resolving factual disputes or, ordinarily, for know­
ing how the triers of fact resolved them. As an invariable 
rule, then, the facts should be reported in the light most 
favorable to the prosecution, and most unfavorable to the 
defendant, in every case. If a trial transcript exists, and 
if it contains the testimony of the complaining witness and 
of the defendant, resolve all conflicts of testimony in favor 
of the complaining witness and report the facts as they might 
reasonably have been found by a jury which credited the 
complaining witness, drew all rational inferences from her



25

cross-examination of Dr. Wolfgang that these gaps in in­
formation impugned the underlying data-gathering process. 
Dr. Wolfgang replied:

the absence of information, I would be unwilling to 
assert, is due to lack of any effort. Very diligent efforts 
were made by the field investigators to collect the infor­
mation—from court clerks, from police records, from 
prisons, from other sources available in the community 
—and they were instructed to follow down each piece of 
information, each source of information to its fullest 
extent, so that I have no reason to doubt that the 
effort was made to collect the data (Tr. 80).

His testimony as a whole makes it clear that-—although, as 
he put i t : “ Information is always limited” (Tr. 72)—he was 
confident that he had enough of it to support his conclu­
sions. (See particularly Tr. 76-79.)

He was able to subject twenty-two “ quite relevant vari­
ables” (Tr. 78)—in addition to race of defendant, race 
of victim, and sentence—to analysis. (See Petitioner’s 
Exhibit P-4, Appendix A ; Tr. 29, 52.) Most of these were 
not significantly associated with sentence, and so Dr. W olf­
gang could assert categorically that they did not account 
for or explain the disproportionately frequent death sen­
tencing of Negroes with white victims (Tr. 42-46, 53-54). 
These variables included the defendant’s age, whether he

testimony most strongly against the defendant, discredited 
the defendant, and refused to draw any disputable inferences 
in his favor. Treat all other sources in a similar fashion. In 
interviews with defense counsel, try to impress upon counsel 
that you have to have the facts as they might have appeared 
in the worse light for his client. In reading newspaper items 
which give conflicting versions of the facts, adopt the version 
most unfavorable to the defendant.



26

was married, whether he had dependent children, whether 
he had a prior criminal record; the victim’s age, whether 
she had dependent children; whether the defendant and 
victim were strangers or acquaintances prior to the of­
fense; place where the offense occurred (indoors or out­
doors), whether the defendant committed an unauthorized 
entry in making his way to that place; whether the defen­
dant displayed a weapon in connection with the offense; 
degree of seriousness of injury to the victim; and the 
defendant’s plea (guilty or not guilty), type of counsel 
(retained or appointed), and duration of trial (Tr. 47, 53; 
Petitioner’s Exhibit P-4, p. 9, para. 5; Petitioner’s Exhibit 
P-5). Two variables were shown to bear significant associ­
ation with sentence: death sentences were more frequent 
in the cases of defendants who had a prior record of im­
prisonment, and in the cases of defendants who committed 
other offenses contemporaneously with the rape. But be­
cause these variables were not associated with race,8 Dr. 
Wolfgang concluded that they also could not account for 
the fact that Negroes convicted of rape of white victims 
were disproportionately often sentenced to death (Tr. 47- 
52, 54; Petitioner’s Exhibit P-4, pp. 8-9, para. 4; Petitioner’s 
Exhibit P-5). Other variables appeared so frequently or 
so infrequently in the total population of cases studied that 
statistical analysis of them was “unnecessary and impos­
sible”  : the fact that they appeared to characterize all cases 
(or no cases), irrespective of sentence or of racial combina­

8 Statistical analysis of the association between these variables 
and race of the defendant disclosed no significant association. 
When defendant-victim racial combinations were considered, the 
numbers of cases for which information was available became too 
small for statistical treatment, but on the basis of trend of asso­
ciation, Dr. Wolfgang concluded that here too there was no as­
sociation of significance.



27

tions of defendant and victim, pointed to the conclusion 
that they were not available explanations for the relation­
ship observed between death sentences and Negroes with 
white victims. These variables included the victim’s repu­
tation for chastity and prior criminal record; whether the 
defendant and victim had had sexual relations prior to the 
occasion of the rape; the degree of force employed by the 
defendant; whether the victim was made pregnant by the 
rape; and whether the defendant interposed a defense of 
insanity at trial (Tr. 54-55, 94-95; Petitioner’s Exhibit P-5). 
Summarizing, Dr. Wolfgang found that no variable of 
which analysis was possible could account for the observed 
disproportionate frequency of sentencing to death of 
Negroes convicted of rape of white victims (Tr. 56-o7). 
His ultimate conclusion was:

On the basis of the foregoing findings, it appears 
that Negro defendants who rape white victims have 
been disproportionately sentenced to death, by reason 
of their race, during the years 1945-1965 in the State 
of Arkansas. (Dr. Wolfgang’s written report, Peti­
tioner’s Exhibit P-4, pp. 13-14 (emphasis added).)

Although respondent presented no evidence of any sort 
in rebuttal, the district court disagreed with Dr. W olf­
gang’s conclusions. It accepted his finding that the differ­
ential sentencing to death of Negroes with white victims 
“ could not be due to the operation of the laws of chance,” 
257 F. Supp. at 718, App. p. 16a infra, but supposed that 
it might be due to some factor respecting which statistical 
analysis had not been possible:

. . .  the issue of consent is always involved in rape 
cases. In cases not involving inter-racial situations the



2S

issue of consent may be and frequently is very real; 
that issue from a factual standpoint is much less likely 
to be present in cases in which white women have been 
attacked by Negro men. And the disproportion be­
tween death sentences imposed on Negro men convicted 
in inter-racial cases and such sentences imposed in 
other cases may well be referable in large measure to 
the fact that in the former cases the trial jurors may 
have a firmer and more abiding conviction of the truth 
of the charges than in cases of the latter type (257 
F. Supp. at 720-721, App. p. 21a infra).

The court remarked that the “variables which Dr. W olf­
gang considered are objective . . . broad and in instances 
. . . imprecise” ; that in many of the individual rape cases 
studied “ the field workers were unable to obtain from 
available sources information which might have been quite 
pertinent” ; and that Dr. Wolfgang’s “ statistics really re­
veal very little about the details” of comparative individual 
cases of rape.” 257 F. Supp. at 720, App. p. 20a infra. 
While recognizing that “ the sample drawn by Mr. Monroe 
seems to have been drawn in a manner which is acceptable 
statistically,” 257 F. Supp. at 720, App. p. 19a infra, the 
court itself thought that the counties randomly chosen had 
turned out to be insufficiently geographically dispersed, 
and to include too few counties of sparse Negro population, 
ibid. It added that the “ case studies, and the number of 
death sentences imposed are simply too few in number to 
afford convincing proof” of racial discrimination, 257 F. 
Supp. at 720, App. p. 19a infra, and placed some reliance 
on the language in Dr. Wolfgang’s written report to the 
effect that the report was “ preliminary” and “ tentative,”



29

257 F. Supp. at 720, App. p. 20a infra. In all, it con­
cluded :

On the meager material before it the Court is simply 
not prepared to convict Arkansas juries of unconstitu­
tional racial discrimination in rape cases. As a matter 
of fact, the Court doubts that such discrimination, 
which is a highly subjective matter, can be detected 
accurately by a statistical analysis such as was under­
taken here. Statistics are elusive things at best, and 
it is a truism that almost anything can be proved by 
them (257 F. Supp. at 720, App. p. 21a infra).

Petitioner’s related claims attacking Arkansas capital 
sentencing procedure were likewise rejected on the merits. 
As to the contention that the unguided and uncontrolled 
discretion given juries to decide the question of life or 
death is fundamentally lawless and unconstitutional within 
the principle of Giaccio v. Pennsylvania, 382 U. S. 399 
(1966), the court said that “Whether the interpretation 
which Mr. Justice Stewart places upon the reasoning of 
the majority [in Giaccio] turns out to be accurate remains 
to be seen; for the present at least this Court will accept 
the majority’s disclaimer [referring to footnote 8 in the 
Giaccio opinion, which disavows the intention in that case 
to cast doubt on the validity of all jury sentencing] at face 
value.” 257 F. Supp. at 717, App. p. 14a infra. With respect 
to the claim that, where jury sentencing is authorized, the 
procedural fairness demanded by the Due Process Clause 
requires some procedure for separate adjudication of the 
issues of guilt and capital punishment, the court concluded 
that “ While some States follow that procedure, this Court 
does not believe . . . the Constitution requires it.” 257 F.



30

Supp. at 721, App. p. 22a infra. Alone among petitioner’s 
contentions, his attack on Arkansas’ jury selection pro­
cedures on the ground that the use of racially segregated 
taxpayer rolls impermissibly invited the systematic exclu­
sion of Negroes, was not determined on the merits. The 
district court noted that this point had been raised and 
decided adversely to petitioner in his previous habeas 
corpus proceeding; the “ Court sees no occasion to re­
examine the question and is not persuaded to do so by 
the action of the Supreme Court in recently granting cer­
tiorari in the ease of Sims v. Georgia, 384 U. S. 998 [1966].” 
257 F. Supp. at 713, App. p. 5a infra.

In its opinion denying relief, handed down August 26, 
1966, the court expressly stated that it would “not stay 
petitioner’s execution beyond September 2 and [would] . . . 
decline to grant a certificate of probable cause,” noting that 
“ Petitioner has ample time to apply to the Court of Ap­
peals for relief.” 257 F. Supp. at 721, App. p. 22a infra. 
Formal orders denying a stay and a certificate were signed 
by Judge Henley August 29. App. pp. 24a, 25a infra. Au­
gust 30, before counsel for petitioner could obtain from the 
court reporter a transcription of the testimony at the 
August 22 hearing, they applied to Circuit Judge Matthes 
for a stay of petitioner’s impending execution and a certifi­
cate of probable cause. With no record of the testimony 
below before him, Judge Matthes denied both requests. 
App. p. 26a infra. It is to review that order that the present 
petition for certiorari is filed. On September 1, Mr. Justice 
White stayed petitioner’s September 2 execution pending 
its filing.



31

REASONS FOR GRANTING THE WRIT

I.

The Procedures by Which Petitioner’s Applications 
for a Certificate of Probable Cause and a Stay o f Execu­
tion Were Disposed of Below Are Inconsistent With 
Statute and With the Fair Administration o f  Justice in 
Federal Habeas Corpus Proceedings.

The proceedings below that resulted in denial of a cer­
tificate authorizing appellate review of petitioner’s habeas 
corpus case, and in refusal to stay the execution of his 
death sentence to permit review, plainly “ so far departed 
from the accepted and usual course of judicial proceedings 
. . .  as to call for an exercise of this court’s power of super­
vision.” Cf. Rule 19(1) (b) of this Court. To the extent 
that the Court’s experience may suggest that those pro­
ceedings are becoming “usual” , in the sense that the federal 
district courts are tending to pass responsibility for cer­
tificates of probable cause to the circuit judges, who are 
ill-situated to consider them, the Court should make plain 
that this procedure is unfair, inefficient, and not to be ac­
cepted in the orderly administration of habeas corpus 
practice.

Although 28 U. S. C. §2253 (1964) does not expressly 
say so, its evident intendment is that primary responsi­
bility for the consideration of applications for certificates 
of probable cause in habeas cases rests with the federal 
district judges. A  district judge who has denied relief 
on a petition for the writ is familiar with the record; he 
can act more quickly and with less effort on the question 
of certification than can a circuit judge. His action can



32

be had without application by the prisoner (frequently 
unrepresented by counsel) to an additional court (fre­
quently in a different city, or even a different State), and 
it can be had prior to the preparation (costly to the pris­
oner or to the United States) of a transcript and record 
of the proceedings in the district court. In his considera­
tion of the application for a certificate, he can give the 
prisoner the full benefit of the study which he gave the 
underlying case; he is not limited, as is the circuit judge, 
to hurried perusal of these extraordinary applications, 
which is all that in the typical capital case the shortness 
of time permits, or in any other case the circuit judge’s 
appellate workload likely tolerates. If § 2253 is to be ad­
ministered in fair, orderly fashion, it must be read as call­
ing on the district judges in the first instance to pass 
considered judgment on applications for certificates, with 
revisory power in the circuit judges and the courts of 
appeals.

As for the standard of “ probable cause” required to 
support a certificate, considerations to which this Court 
has given effect in other contexts imperatively compel the 
view that “probable cause” is made out by the presentation 
of any non-frivolous federal claim. Cf. Eskridge v. Wash­
ington State Board of Prison Terms and Paroles, 357 U. S. 
214, 216 (1958); Coppedge v. United States, 369 U. S. 438, 
444-450 (1962); Draper v. Washington, 372 U. S. 487, 498- 
500 (1963). These decisions recognize the deprivation in­
volved when a trial judge’s self-review and informal, in­
adequately-based consideration by appellate judges are sub­
stituted for the full consideration ordinarily given by the 
appellate process. It is true that in these cases the sub­
stitution was imposed discriminatorily, against only the



33

class of poor persons. But § 2253 also is not a general, 
evenhanded rule of federal practice. It applies only in 
habeas corpus cases, only in those cases where state pris­
oners are petitioners, and—even in those cases—only 
against the prisoner, not the State. E.g., United States ex 
rel. Tillery v. Cavell, 294 F. 2d 12 (3d Cir. 1961). It is 
dubious at best that meritless appeals, or appeals whose 
inconvenience outweighs their claim to judicial attention, 
are “ concentrated in this narrow, yet vital, area of judicial 
duty.” Coppedge, supra, at 450. Grave questions of equal 
protection therefore would be raised if the “ probable 
cause” hurdle amounted to more than a finding of non­
frivolity. Cf. Rinaldi v. Yeager, 384 U. S. 305 (1966). And 
if a certificate of probable cause is proper in a death case, 
there can be no question that a stay of execution is de­
manded. “ Obviously, if there is probable cause for the 
appeal it would be a mockery of federal justice to execute 
[the appellant] . . . pending its consideration.” Fouquette 
v. Bernard, 198 F. 2d 96 (Denman, C.J., 1952).

The proceedings below failed by a wide margin to con­
form to this statutory scheme. The district court did not 
think petitioner’s contentions insubstantial on the face of 
his petition for the writ. An evidentiary hearing was 
scheduled and for a full day evidence was received, includ­
ing the testimony of two expert witnesses and numerous 
documentary exhibits. In denying relief, the district judge 
wrote a ten-page opinion. We invite this Court’s attention 
to that opinion, which on its face both demonstrates and 
recognizes that petitioner’s constitutional points are 
weighty.

First, petitioner’s attack on the standardless discretion 
given Arkansas juries in capital sentencing is rejected



34

although it “ remains to he seen” whether petitioner’s in­
terpretation of the reasoning of the Giaccio decision “ turns 
out to be accurate” ; “ for the present at least this Court 
will accept the majority’s disclaimer at face value.”  257 
F. Supp. at 717, App. p. 14a infra.

Second, with respect to the contention that racial dis­
crimination is practiced by Arkansas juries in the exercise 
of that standardless discretion, the district court devoted 
four pages to close analysis of the statistical evidence and 
to explanation why the court disagreed with petitioner’s 
uncontradicted expert testimony that racial discrimination 
was established. Those four pages make plain that the 
matter was not considered open and shut: “ The Court 
does not intend to belittle either the study made by Dr. 
Wolfgang or his testimony. But the Court is simply not 
convinced by them. . . . ” 257 F. Supp. at 720, App. p. 21a 
infra.

Third, the court’s comment on petitioner’s attack upon 
the Arkansas “ single-verdict” procedure was:

While some states follow that procedure [that of 
providing for separate consideration of the issues of 
guilt and sentence], this Court does not believe that 
the Constitution requires it. The Court does not con­
sider that Jackson v. Denno, 378 U. S. 368, 84 S. Ct. 
1774, 12 L. Ed. 2d 908 and Malloy v. Hogan, 378 U. S. 
1, 84 S. Ct. 1489, 12 L. Ed. 2d 653 are in point here 
(257 F. Supp. at 721, App. p. 22a infra).

Visibly, this comment admits of the possibility that the 
Constitution, as petitioner urges, may require a split ver­
dict procedure, and that the holdings in the cited cases may 
well be the points of departure for imposing the require­



35

ment. The short of it is that the issue has not been finally 
determined either by this Court or by the Courts of Appeals 
and—since it can hardly be characterized as inherently 
frivolous—it consequently presents an appeal-worthy fed­
eral question.

Finally, on the issue of discriminatory jury selection re­
sulting from use of poll tax records carrying racial iden­
tifications, the court’s sole comment was that it was “not 
persuaded,” 257 F. Supp. at 713, App. p. 5a infra, by 
this Court’s grant of certiorari in Sims v. Georgia, 384 U. S. 
998 (1966) to re-examine the question. But obviously the 
grant of certiorari explicitly on this question manifests that 
it too is not unworthy of federal appellate consideration.

Nevertheless, after granting a full and scrupulously fair 
hearing, the court denied petitioner a certificate to appeal 
and a stay of execution with the note that “ Petitioner has 
ample time to apply to the Court of Appeals for relief.” 
257 F. Supp.. at 721, App. p. 22a infra. When petitioner 
did apply to a circuit judge—three days prior to his sched­
uled electrocution— Circuit Judge Matthes denied certifica­
tion and a stay without even having the transcript of testi­
mony before him, because time had not yet permitted its 
preparation by the stenographer. The result was that peti­
tioner was entirely deprived of judicial consideration of the 
question whether his appeal in a capital case deserved 
hearing. With regard to the vital question whether the 
district court’s factual findings "were correct beyond ten­
able dispute—as, on the transcript, they rather plainly 
were not, see text infra—Judge Matthes neither could nor 
did accept the responsibility which the district court had 
passed to him.

If state process sent a man to death after proceedings of 
this nature in a state court system, the gravest questions of



36

procedural due process would be presented. We respectfully 
submit it is clear that these proceedings do not meet the 
higher standards demanded in the administration of jus­
tice under the Constitution within the federal courts.

By making this submission, we do not ignore that this is 
petitioner William Maxwell’s second federal habeas corpus 
petition. Circuit Judge Matthes denied him an appeal on 
this ground. App. p. 27a, infra. But the district court 
entertained that petition on the merits, as it was permitted 
—and indeed, in light of the newly discovered evidence 
presented, required—to do under Sanders v. United States, 
373 U. S. 1 (1963). Therefore, if Sanders is to have mean­
ing, petitioner was entitled to full and fair consideration 
of his constitutional claims, including appellate considera­
tion in orderly course and on an adequate record of his 
substantial points preserved for the appeal. Judge Matthes’ 
disposition simply flouts the Sanders principles.

We also do not ignore that the proceedings on the 
merits in the district court herein were conducted by 
Chief Judge Henley with rare patience, consummate fair­
ness and the fullest considered attention to petitioner’s 
rights under the difficult pressure of an impending execu­
tion date. But Chief Judge Henley, following his decision 
on the merits, appears to have taken the view that ques­
tions of probable cause for appeal and a stay pending ap­
peal were for the circuit court; and Circuit Judge Matthes 
did not, because he could not— in a few hours and without 
a record before him—even begin to give adequate considera­
tion to those questions. We urge that the lapsed respon­
sibility for certification of probable cause under 28 IT. S. C. 
§ 2253 demonstrated in this case and apparent elsewhere 
as well, see, e.g., Smith v. Texas, 225 F. Supp. 158 (S. D. 
Tex. 1963), imperatively demands this Court’s attention on 
certiorari.



37

II.

Petitioner Was Improperly Deprived o f  Access to the 
Court o f  Appeals, and Ultimately to This Court, on 
Issues o f  Substantial Merit and Vital Contemporary 
Importance.

The merits of this litigation pose issues of enormous 
moment. What is in question is the fairness and regularity 
required by the Constitution in proceedings by which the 
State determines to take human life. That history and the 
public temper in this country today appear to have set 
their heads against capital punishment—there were only 
seven executions in the United States during the calendar 
year 19659—makes the questions no less momentous. If

9 United States Department op Justice, Bureau op Prisons, 
National P risoner Statistics, No. 39, Executions 1930-1965 (June 
1966), p. 10. For discussion of the decreasing trend in executions, 
see Sellin, The Death Penalty (1959), published as an appendix 
to A merican Law  Institute, Model Penal Code, Tent. Draft 
No. 9 (May 8, 1959) ; Hartung, Trends in the Use of Capital 
Punishment, 284 Annals 8 (1952).

Increasing public sentiment against the death penalty is evident. 
The Gallup Poll recently reported that a majority of Americans 
favor its abolition. Philadelphia Bulletin, Friday, July 1, 1966, 
p. 7, col. 6. Concerned private and public agencies agree. The 
influential National Council on Crime and Delinquency recom­
mended abolition in 1963. See 9 Crime and Delinquency 225 
(1963). The United States Department of Justice has taken the 
same view:

“We favor the abolition of the death penalty. Modern 
penology with its correctional and rehabilitative skills affords 
greater protection to society than the death penalty which is 
inconsistent with its goals. This Nation is too great in its 
resources and too good in its purposes to engage in the light 
of present understanding in the deliberate taking of human 
life as either a punishment or a deterrent to domestic crime.” 
Letter of Deputy Attorney General Ramsey Clark to the 
Honorable John L. McMillan, Chairman, House Committee on 
the District of Columbia, July 23, 1965, reported in New York 
Times, July 24, 1965, p. 1, col. 5.



death is to be a rarely imposed sanction, an unusual, ex­
treme resort of our society, see, e.g., W ethofen, T he Urge 
to P unish 163-165 (1956), it is all the more imperative 
that the resort be invoked only under procedures which 
assure against arbitrary and discriminatory fortuity, and 
that the men10 chosen to die be rationally and fairly chosen.

Petitioner makes three interrelated constitutional chal­
lenges to the Arkansas procedure by which he was sentenced 
to death. He contends that the Arkansas practice which 
leaves “ jurors free to decide, without any legally fixed 
standards,” 11 the question of life or death violates the 
basic rule of law implicit in the Due Process Clause. The 
potential for arbitrary and discriminatory application of 
the death penalty in the jury’s unguided, unregulated and 
unreviewable discretion is exacerbated by a second char­
acteristic of Arkansas procedure: simultaneous trial and 
submission to the jurors of the issues of guilt and punish­
ment. This procedure deprives the capital sentencing body 
of the sort of background information that is indispensable 
to any sort of rational choice, including the defendant’s 
history and his personal statement, except at the cost of 
prejudice to fair trial on the guilt question and enforced 
waiver of the defendant’s privilege against self-incrimi­
nation. The consequence, simply,- is that the jury’s discre­
tion not only may but must be applied capriciously. Finally, 
petitioner has documented the results in practice of the 
Arkansas procedures which he challenges. In the uncon­
tested expert opinion of one of the country’s outstanding

10 For practical purposes, women are no longer subjected to 
capital punishment. See, e.g., Mattick, The Unexamined Death 5 
(1966).

11 Oiaccio v. Pennsylvania, 382 U. S. 399, 402-403 (1966).



39

criminologists, based upon an exhaustive and rigorous 
scientific study, Arkansas juries in rape cases have re­
sponded to the state-given opportunity for arbitrariness 
and have discriminated on grounds of race in sentencing 
men to death.

The district court thought the documentation insuffi­
ciently conclusive, and the thesis of discrimination not 
proved. That, of course, would be one of the issues on 
the appeal, involving consideration both of the quality of 
petitioner’s proof and of the appropriate standards for 
judging such proof. But whether or not, as petitioner will 
contend, the proof was ample under a proper standard at 
the least to make a prima facie case sufficient in the ab­
sence of rebuttal to compel a finding of discrimination, 
see pp. 59-67 infra, it is impossible to dispute that Dr. W olf­
gang’s testimony “ casts considerable doubt upon the quality 
of justice in those particular cases throughout the system” 
(Tr. 81). This doubt, which no Scotch verdict on the ques­
tion of discrimination could dispel, even were the district 
court’s finding of not proved12 sustained on an appeal, has 
in itself a significance that cannot be ignored.

First, any “ considerable doubt” that racial bias is operat­
ing surely gives the weightiest support to petitioner’s 
legal attack upon the face of the Arkansas sentencing pro­
cedures which, by committing unfettered discretion to 
juries and keeping from them information necessary to its 
rational exercise, tend in their very nature to encourage 
arbitrary capital sentencing. Especially is this so where 
the considerable doubt is generated by an extensive em­

12 The “ Court is simply not prepared to convict Arkansas juries 
of unconstitutional racial discrimination in rape cases.” 257 F. 
Supp. at 720, App. p. 20a infra.



40

pirical investigation of the sort here conducted, demon­
strating to the satisfaction even of the district court that 
the racial disproportion in capital sentencing “ could not 
be due to the operation of the laws of chance,” 257 F. Supp. 
at 718, App. 16a infra, and categorically negating every 
non-racial explanation for the disproportion that an 
enormous investment of resources in research and analysis 
could expose for study.13

Second, “ considerable doubt” respecting the fairness in 
operation of a system by which human life is forfeited 
justifies—indeed, requires—the most painstakingly solic­
itous judicial consideration of all legal issues touching 
the imposition of capital punishment. It is no accident 
and no mistake that, as the history of litigation in cap­
ital cases in the past decade demonstrates, the death 
penalty has come to be carried out only with extreme re­
luctance, and only after every issue in a death case has 
been carefully scrutinized, examined, dissected and ex­
hausted by the courts of the States and of the United States, 
particularly the appellate courts.14 This full consideration,

13 As of the date of the proceedings below, the eleven-State 
survey had involved the expenditure of more than $35,000. More 
than 2600 28-page schedules from 230 counties in the eleven States 
(those counties comprising more than 50% of the total population 
of the eleven States) had been completed. This extensive collec­
tion of data required the efforts of twenty-eight field researchers 
working full time through an average 10-week summer. See the 
affidavit of Norman C. Amaker, Esq., attached as Exhibit 2 to 
the petition for habeas corpus. This is in addition to the time 
devoted by Dr. Wolfgang and his statistical assistants (see Tr. 27) 
to analysis.

14 Indeed, this Court has often enumerated among the reasons 
for its granting certiorari in particular cases the fact that a death 
sentence was imposed upon the petitioner.



41

which some persons are quick to condemn as judicial super- 
sensitivity, only reflects the fact that as a Nation we have 
come more and more to realize our inability to face and to 
resolve fundamental conflicts surrounding capital punish­
ment.15 One of those conflicts is precipitated by the circular 
circumstance that, as executions become rarer, the choice 
of the few, isolated individuals who must die becomes more 
visibly arbitrary, fortuitous, capricious; and “ doubt” about 
the fairness of the system is intuitively evident. It is 
bitterly ironic that in petitioner Maxwell’s case—the first 
in which a firm empirical foundation for that doubt (to say 
the very least) has been laid—Maxwell should have been 
denied below the plenary review which rightly has become 
the commonplace of death cases.

Third, “ considerable doubt” about the fairness of ad­
ministration of the death penalty touches at its roots a com­
plex of our most intractable contemporary social issues. 
Decisions of this Court have long recognized that violence 
may emanate from the state as well as from the mob, and 
that violence under color of law is as dangerous to the social

15 The plain fact is that, as a people, the United States today 
maintains the death penalty in principle (in a majority of juris­
dictions) while repudiating it in practice. See authorities in note 7 
supra,. As we note therein, only seven men wrere executed in this 
country in 1965 (none for the crime of rape). Counsel have been 
told informally by federal Bureau of Prisons officials that only 
one man was executed during the first ten months of calendar 
1966. At the same time, the national ambivalence is expressed in 
the mounting total of prisoners reported detained under sentence 
of death. As of December 31, 1965, the number was 331 (47 for 
the crime of rape). United States Department op Justice, 
Bureau op Prisons, National Prisoner Statistics, No. 39, Execu­
tions 1930-1965 (June 1966), p. 14. Counsel are informed by the 
Bureau that the total has continued to mount during the first 
ten months of this year.



42

fabric as that not cloaked with legitimate authority.16 When 
government acts unlawfully the simple result is contempt 
for law. See Mr. Justice Brandeis, dissenting, in Olmstead 
v. United States, 277 IT. S. 438, 485 (1928). A  second con­
sequence no less serious, though rarely recognized, is the 
fostering in a society of the tendency to accept violence, 
which is perpetrated by legitimate authority, as broadly 
necessary and justifiable.

Execution, though carried out with the imprimatur of 
the state, is an extreme form of violence by government. 
One need not attack its legality under all circumstances to 
point out that putting a man to death against his will is 
state sanctioned violence which may have the same signif­
icant consequences as other forms of official violence. It is 
in this context that the Court should consider the impor­
tance of the questions raised here of disproportionate ap­
plication of the death penalty to Negroes as a class, and 
procedures that permit this disproportion; for if the avail­
able evidence suggests that the state is reserving a violent 
punishment for one racial group, then government may be 
condoning for society in general, and for that class in par­
ticular, the most corrosive sort of discrimination in the 
most vicious and least pardonable form of human conduct. 
Many distinctions in government policy may be justified or 
accepted even when invidious and even by those who are 
members of the disfavored class. But discriminatory vio­
lence on the part of the state is a course which the group 
that is discriminated against can hardly be expected to ac­

16 See e.g., Moore v. Dempsey, 261 U. S. 86 (1923) ; Mooney v. 
Holohan, 294 U. S. 103 (1935); Brown v. Mississippi, 297 U. S. 
278 (1936) ; Bochin v. California, 342 U. S. 165 (1952); Shepherd 
v. Florida, 341 U. S. 50 (1951) (Mr. Justice Jackson, concurring) ; 
Cf. Lankford v. Gelston, 364 F. 2d 197, 203-205 (4th Cir. 1966).



43

cept. Unequal sentencing on the basis of race can only con­
tribute to smoldering resentment or sterile indifference on 
the part of the oppressed class. The sense which many 
Negroes undeniably have and which the evidence here con­
firms, that the death penalty in rape cases is reserved for 
Negroes convicted of an offense in which a white woman 
is the victim, is part of the social and psychological constel­
lation which produces “ untoward counter reactions of vio­
lence” . Cf. Lankford v. Gelston, 364 F. 2d 197, 204 n. 7 
(4th Cir. 1966).

The submission which follows is firmly based on princi­
ples of law established by the Congress and this Court and 
basic to our constitutional system. The factual showing is 
the product of rigorous application of accepted scientific 
methodology. But as we see the matter, the enormous con­
sequences in disaffection and alienation caused by such 
sentencing patterns as are here revealed enhance the weight 
and depth of the issues presented and make it vital to so­
ciety, as it is to William Maxwell, that they be fully and 
fairly heard.

We do not press this Court to decide these issues on the 
merits at the present stage of the litigation. The Court 
unquestionably has jurisdiction to do so if the writ of 
certiorari is issued under 28 U. S. C. § 1651, House v. Mayo, 
324 U. S. 42 (1945). However, the Court may think it more 
appropriate that the district court’s decision be reviewed 
in the first instance by the Court of Appeals for the Eighth 
Circuit, as it would in due course have been reviewed had 
Judge Matthes issued a certificate.17 If so, there will be

17 Apart from the consideration that it would be desirable for 
this Court to have the views of the Eighth Circuit before deciding 
whether to hear the case in the exercise of statutory certiorari 
jurisdiction, it is hardly fair to petitioner that Judge Matthes’



44

later occasion for this Court to choose to hear the merits 
in the fuller light of the Court of Appeals’ treatment of 
the issues. In any event, in this petition for certiorari, we 
limit the discussion that follows to a brief demonstration 
that each of the four major points raised on petitioner’s 
attempted appeal has sufficient substance to warrant fed­
eral appellate consideration. Should the Court find any of 
these points substantial, we ask that it grant the writ of 
certiorari, reverse Judge Matthes’ order denying a cer­
tificate and a stay, and remand the case to him with direc­
tions to enter appropriate orders certifying probable cause 
and restraining petitioner’s execution. Cf. Piielper v. 
Decker, 35 U. S. L. Week 3138 (U. S. Oct. 17, 1966). How­
ever, should the Court wish itself to hear the merits at the 
present time, we shall address the issues more fully in 
subsequent briefing.

A. Petitioner’s challenge to unfettered jury discretion in capi­
tal sentencing raises substantial issues.

The discretion given Arkansas jurors to decide whether 
a man convicted of rape shall live or die is absolute and 
arbitrary. As the court below described i t :

It may be conceded that the Arkansas statutes deal­
ing with rape and dealing with capital punishment do 
not purport to set up any standards by which the jury 
is to exercise its discretion [in capital sentencing]
. . ., and it will be assumed that no such standards are 
found in the reported decisions of the Supreme Court 
of Arkansas. Nor did the Circuit Court in its charge

improper denial of a certificate should have the effect of substitut­
ing an anticipatory exercise of this Court’s discretion to grant or 
deny certiorari for the review as of right by the Court of Appeals 
to which he is entitled on a showing of probable cause.



45

to the jury attempt to lay down any principles which 
should be applied in determining whether petitioner, 
if convicted, should be punished by life imprisonment 
rather than by death. (257 F. Supp. 716, App. p. 11a 
infra.)18

Little more than this description is necessary to show the 
substantiality of the question whether any such procedure 
is constitutional. Whatever else “due process of law” may 
encompass, it has always been thought to impose some 
demand of fundamental procedural regularity in decision­
making, some insistence upon the rule of law, some ad­
herence to the principle established by Magna Carta that 
the life and liberty of the subject should not be taken but 
by the law of the land. This Court has long condemned a 
degree of vagueness in criminal statutes that “ licenses the 
jury to create its own standard in each case” , Herndon v. 
Lowry, 301 U. S. 242, 263 (1937). See, e.g., Smith v. 
Cdlioon, 283 U. S. 553 (1931); Cline v. Frink Dairy Co., 
274 U. S. 445 (1927); Conn-ally v. General Construction Co., 
269 U. S. 385 (1926); Winters v. New York, 333 U. S. 507 
(1948). The vice of such statutes is not alone their failure 
to give fair warning of prohibited conduct, but the breadth 
of room they leave for jury arbitrariness and suasion by 
impermissible considerations, N. A. A. C. P. v. Button, 371 
U. S. 415, 432-433 (1963); Freedman v. Maryland, 380 
U. S. 51, 56 (1965); Lewis, The Sit-In Cases: Great Ex­

18 The district court noted that it “does not appear that counsel 
for petitioner requested any instructions on the subject,”  257 F. 
Supp. at 716 n. 6, App. p. 11a, n. 6 infra. But the court made 
nothing of this, and elearly did not. suggest that it amounted to 
the sort of intentional bypassing required to forfeit federal claims 
under Fay v. Noia, 372 U. S. 391 (1963), and Henry v. Mississippi, 
379 U. S. 443 (1965).



46

pectations, [1963] Supreme Court Review 101, 110; Note, 
109 U. Pa. L. Rev. 67, 90 (1960), including racial con­
siderations, see Louisiana v. United States, 380 U. S. 145 
(1965); Dombrowski v. Pfister, 380 U. S. 479 (1965); Cox 
v. Louisiana, 379 U. S. 536 (1965), and every other insidi­
ous urging of caprice or prejudice.

Under these decisions, it could scarcely be contended 
that an Arkansas statute would be valid which provided: 
“whoever is found condemnable in the discretion of a jury 
shall be guilty of an offense.” Tet we submit that this 
suppositious statute stands no differently in light of the 
concerns of the Due Process Clause than the unregulated 
sentencing practice under which petitioner was condemned 
to die. The statute, it is true, deals with crime, and Ar­
kansas’ sentencing practice with punishment. Tradition­
ally it has been thought that “ fair notice” questions were 
raised by the former sort of regulation (defining offenses) 
but not the latter (prescribing punishment). Yet is it not 
apparent that the vice of the “ whoever-is-found-condemna- 
ble” statute has nothing to do with notice? The statute is 
bad not because a man does not know how to behave con­
sistently with it, but because, however he behaves, he may 
be arbitrarily and capriciously taken by the heels. The 
precise vice inheres in unregulated jury discretion to sen­
tence a convicted man to life or death. He too may be dealt 
with arbitrarily, his life extinguished for any reason or 
none. Of course, he has previously been found guilty of a 
defined crime. But we do not think it necessary to demon­
strate that that conviction cannot constitutionally be given 
the effect of stripping him of every civil right, including 
the fundamental right to due process of law.

Giaccio v. Pennsylvania, 382 U. S. 399 (1966) supports, 
if it does not compel, the conclusion that unfettered jury



47

discretion in capital cases is unconstitutional. What was 
at issue there, as here, was a state practice governing dis­
position, not describing the elements of an offense. No 
“ fair notice” problem was involved— except, of course, the 
problem that it was impossible for defense counsel at trial 
to know what issues he was trying, as it is in a capital 
case tried to a jury having limitless sentencing power. No 
First Amendment or other federal rights demanding the 
special protection afforded by a heightened requirement of 
statutory specificity, see United States v. National Dairy 
Prods. Gorp., 372 U. S. 29, 36 (1963), were involved in 
Giaccio. That decision turned squarely on the proposition 
that the Fourteenth Amendment forbade Pennsylvania to 
leave its “ jurors free to decide, without any legally fixed 
standards,” 382 U. S. at 402-403, whether to impose upon a 
defendant a rather small item of costs. It is not evident 
why, in the infinitely more significant matter of sentencing 
men to death, Arkansas juries are permitted the same law­
less and standardless freedom.

Nor does footnote 8 in the Giaccio opinion, thought dis­
positive by the district court below, resolve the issue. 
Even if that footnote be read as anything more than the 
careful reservation of a question, it speaks to jury sen­
tencing generally, not capital sentencing. Given the im­
precision of the sentencing art, even when performed by 
judges, see Tigner v. Texas, 310 U. S. 141, 148-149 (1940), 
it may well be that juries can constitutionally be given 
some discretion in selecting a smaller or larger fine, a 
longer or shorter term of years, particularly where the 
range of choice is relatively circumscribed and the effect 
of the choice somewhat qualified by parole statutes and the 
continuing availability of post-conviction process to rectify



48

after-discovered mistakes made at the trial. But the degree 
of arbitrariness allowed a State is not so liberal where 
grave and irremediable punitive exactions are at stake, 
see Skinner v. Oklahoma, 316 U. S. 535 (1942), and none is 
graver or more irremediable than the sentence of death by 
electrocution.

Nor did the Court in Giaccio have before it what has 
been presented here: evidence showing that in fact the 
sentencing discretion given juries has been exercised on 
the ground of race explicitly forbidden by the Constitu­
tion. See pp. 59-67 infra. Obviously, evidence that abuse 
has in fact occurred has considerable bearing on the issue 
whether a practice challenged on the grounds of lawless­
ness tending to abuse is susceptible to that challenge, e.g., 
Yick Wo v. Hopkins, 118 U. S. 356 (1886); Niemotko v. 
Maryland, 340 U. S. 268 (1951); Hague v. C. I. 0., 307 U. S. 
496 (1939). For this reason, if no other, it can hardly be 
supposed that the Giaccio footnote was intended to cut off 
—without hearing—the attack on capital sentencing discre­
tion presented here.

We need not take the stand, of course, in this case that 
the Due Process Clause entirely forbids the exercise of 
discretion in sentencing, even by a jury and even in a capi­
tal case. Ways may be found to delimit and guide discre­
tion, narrow its scope, and subject it to review; and these 
may bring a grant of discretion within constitutionally 
tolerable limits. Whether the approach taken by a State 
such as Nevada, which makes certain reviewable findings 
of fact the indispensable condition of imposing capital 
punishment (see Nev. R ev. Stat. §200.360 (1963)); or the 
approach of California, which has adumbrated by judicial 
decision at least some of the impermissible considerations



49

against which jurors are to be cautioned, see People v. 
Love, 53 Cal. 2d 843, 350 P. 2d 705 (1960); or that of the 
Model Penal Code, which both establishes prerequisite 
findings and enumerates aggravating and mitigating cir­
cumstances (see A merican Law Institute, Model Penal 
Code § 210.6 (P. 0. D. May 4, 1962) pp. 128-132); or that 
of the numerous States which provide plenary review of 
capital jury sentencing by trial and/or appellate courts, is 
constitutional, is not the question presented here. Con- 
cededly, the goals of sentencing are complex and in design­
ing devices for achieving them the States must have some 
tolerance.

But as the issue of petitioner’s sentence was submitted 
to the jury in its sole discretion under Arkansas procedure, 
the attention of the jurors was directed to none of the 
purposes of criminal punishment, nor to any pertinent 
aspect or aspects of the defendant’s conduct. They were 
not invited to consider the extent of physical harm to the 
prosecutrix, the moral heinousness of the defendants’ acts, 
his susceptibility or lack of susceptibility to reformation, 
the extent of the deterrent effect of killing the defendant 
“pour decourager les autres.” Cf. Packer, Making the 
Ptmishnient Fit the Crime, 77 Harv. L. Rev. 1071 (1964). 
They were permitted to choose between life and death upon 
conviction for any reason, rational or irrational, or for 
no reason at all: at a whim, a vague caprice, or because 
of the color of petitioner’s skin if that did not please them. 
In making the determination to impose the death sentence, 
they acted wilfully and unreviewably, without standards 
and without direction. Nothing assured that there would 
be the slightest thread of connection between the sentence 
they exacted and any reasonable justification for exacting



50

it. Cf. Skinner v. Oklahoma, supra. To concede the com­
plexity and interrelation of sentencing goals, see Packer, 
supra, is no reason to sustain a statute which ignores them 
all. It is futile to put forward justification for a death 
so inflicted; there is no assurance that the infliction re­
sponds to the justification or will conform to it in opera­
tion. Inevitably under such a sentencing regime, capital 
punishment in those few, arbitrarily selected cases where 
it is applied is both unjustifiable and lawless. The ques­
tion of its constitutionality under the due process clause, 
we submit, is substantial.

B. Petitioner’s attack on Arkansas’ Single-Verdict Procedure 
raises substantial issues.

Arkansas’ practice of submitting simultaneously to the 
trial jury the two issues of guilt and punishment in a capi­
tal case compounds the vice of lawless jury discretion just 
discussed, by making it virtually impossible for the jurors 
to exercise their discretion in any rational fashion.

Under [Arkansas] . . . procedure the State puts on 
its evidence first, and in many types of cases, includ­
ing rape cases, evidence which is relevant to guilt is 
also relevant to punishment. When the State has com­
pleted its presentation, the defense may or may not 
introduce evidence, and the defendant may or may not 
testify in his own behalf. If he does testify, he waives 
his privilege against self-incrimination with respect to 
the charge against him, and may be cross examined 
as fully as any other witness. The deliberations of 
the jury relate to both the question of guilt and the 
question of punishment; there is no post-conviction



51

hearing before the jury as to the punishment which 
the defendant should receive. (257 F. Supp. at 721, 
App. p. 22a infra.)

Plainly, this procedure raises the gravest questions of 
procedural fairness.

Conceding that, as the district court believed, some “ evi­
dence which is relevant to guilt is also relevant to punish­
ment,” supra, it is nonetheless true that much evidence 
which is not relevant to guilt—and which, indeed, is preju­
dicial and inadmissible on the issue of guilt—is relevant 
to punishment. “ [Mjodern concepts individualizing pun­
ishment have made it all the more necessary that a sen­
tencing judge not be denied an opportunity to obtain 
pertinent information by a requirement of rigid adherence 
to restrictive rules of evidence proi^erly applicable to the 
trial.” Williams v. New York, 337 U. S. 241, 247 (1949); 
see also Williams v. Oklahoma, 358 U. S. 576, 585 (1959). 
A fortiori, a jury engaged in the task of determining 
whether a defendant shall live or die needs much informa­
tion that cannot and should not be put before it within 
the confines of traditional and proper limitations on the 
proof allowable as going to guilt or innocence. It is fair 
to say that the overwhelming weight of considered con­
temporary judgment concurs in the conclusion that, 
whether discretionary death sentencing be done by a judge 
or jury, it is the imperative condition of rational sen­
tencing choice that the sentencer consider more informa­
tion about the individual defendant than is likely or per­
missibly forthcoming on trial of the guilt issue. E.g., House 
of Commons Select Committee on Capital P unishment, 
R eport (H. M. S. 0. 1930), para. 177; R oyal Commission 
on Capital P unishment, 1949-1953, R eport (H. M. S. 0.



52

1953) (Cmd. No. 8932), 6, 12-13, 195, 201, 207; A merican 
L aw Institute, Model Penal Code, Tent. Draft No. 9 (May 
8, 1959), Comment to §201.6, at 74-76; New Y ork State 
Temporary Commission on R evision oe the P enal L aw 
and Criminal Code, Interim R eport (Leg. Doe. 1963, No. 
8) (February 1, 1963), 15-16; H. L. A. Hart, Murder and 
the Principles of Punishment: England and the United 
States, 52 Nw. U. L. R ev. 433, 438-439 (1957); Knowlton, 
Problems of Jury Discretion in Capital Cases, 101 IJ. Pa. 
L. R ev. 1099, 1109, 1135-1136 (1953); Handler, Background 
Evidence in Murder Cases, 51 J. Grim. L., Crim. & P ol. S ci. 
317, 321-327 (1960).

The Arkansas single-verdict procedure therefore con­
fronts the defendant on trial for his life with an impos­
sible Hobson’s choice. He has a crucial interest—amount­
ing in some circumstances to a federal constitutional right, 
see Skinner v. Oklahoma, 316 U. S. 535 (1942)—that his 
sentence be rationally determined. As a basis for rational 
determination, he often will want to present to the sen­
tencing jurors evidence of his history, his character, his 
motivation, and the events leading up to his commission of 
the crime of which he is guilty (if he is guilty). The com­
mon-law gave him a right of allocution which is an effective 
vehicle for this purpose, as well as for a personal appeal 
to the jurors, where capital sentencing is discretionary. 
And this Court’s decisions have already recognized that 
allocution may in some circumstances rise to the dignity 
of a Due Process command.19 But to exercise his right of

13 Hill v. United States, 368 U. S. 424, 428-429 (1962); see 
Andrews v. United States, 373 U. S. 334, 336-337 (1963). Acting- 
on these opinions, several circuit courts have found allocution a 
constitutional right. Green v. United States, 313 F. 2d 6 (1st Cir.



allocution before verdict on the guilt issue, he must forego 
his constitutional privilege against self-incrimination, 
Malloy v. Hogan, 378 U. S. 1 (1964); Griffin v. California,

1963), cert, dism’d, 372 U. S. 951 (1963); United States v. John­
son, 315 U. S. 714 (2d Cir. 1963), cert, denied, 375 U, S. 971 
(1964) ; Behrens v. United States, 312 F. 2d 223 (7th Cir. 1962), 
aff’d 375 U. S. 162 (1963).

The Hill case holds that absent “ aggravating circumstances,” 
368 U. S. at 429, failure of a sentencing judge to invite the defen­
dant to exercise his right of allocution does not violate due process. 
But HUl was not a capital case, nor a case in which counsel was 
denied the right to present pertinent information to the sentencer, 
nor “a case where the defendant was affirmatively denied an op­
portunity to speak during the hearing at which his sentence was 
imposed . . . [nor where the sentencer] was either misinformed 
or uninformed as to any relevant circumstances . . . [nor where it 
was even claimed] that the defendant would have had anything 
at all to say if he had been formally invited to speak.” Ibid. In 
an Arkansas rape case, the following “ aggravating circumstances” 
are presented: (A ) the circumstance that the right of allocution 
has had unique historical significance in capital eases, see Couch 
v. United States, 235 F. 2d 519, 521 (D. C. Cir. 1956) (opinion 
of Judge Fahy) ; Coleman v. United States, 334 F. 2d 558, 566 
(D. C. Cir. 1964) (opinion of Judges Burger and McGowan) ; 
(B) the circumstance that in capital cases matters which may 
effect the sensitive discretion of the jury in its life-death choice 
are traditionally viewed with a stricter eye to possibilities of 
prejudice than are other matters in the criminal process, see
People v. H ines,------ Cal. 2d -------- , 390 P. 2d 398, 37 Cal. Rptr.
622 (1964) ; (C) the circumstance that Arkansas’ single verdict 
procedure “affirmatively” denies a defendant his opportunity to 
address the jury on sentence, within the meaning of Hill, supra; 
(D) the circumstance that, for the reasons set out above in text, 
a jury making a capital sentencing choice on no other information 
than the trial of the guilt issue allows is invariably “ either mis­
informed or uninformed” within the meaning of Hill;  (E) the 
circumstance that, under the Arkansas procedure, not only is the 
defendant denied the right to make a personal statement without 
giving up his constitutional privilege against self-incrimination, but 
he is similarly denied the right to have his counsel supply evidence 
on the sentencing issue without incurring the risk of prejudice 
on the guilt issue, see the Johnson and Behrens cases cited in text; 
also Gadsden v. United States, 223 F. 2d 627 (D. C. Cir. 1955); 
Jenkins v. United States, 249 F. 2d 105 (D. C. Cir. 1957).



54

380 U. S. 609 (1965). He must take the stand subject to 
incriminating cross examination. Even apart from cross 
examination, allocution before verdict of guilt destroys the 
privilege. For much of the value of the defendant’s per­
sonal statement to his sentencer derives from its spon­
taneity, see Green v. United States, 365 U. S. 301, 304 
(1961) (opinion of Mr. Justice Frankfurter), and this same 
spontaneity—unguided by the questions of counsel—leaves 
the defendant impermissibly unprotected as he appears 
before a jury which has not yet decided on his guilt. Cf. 
Ferguson v. Georgia, 365 U. S. 570 (1961).

Moreover, if the defendant seeks to present to the jury 
evidence of his background and character, apart from his 
own statement, the prosecution may counter with evidence 
of the defendant’s bad character, including evidence of 
unrelated crimes. The prohibition which ordinarily keeps 
this sort of evidence from the trial jury sitting to determine 
the issue of guilt is “ one of the most fundamental notions 
known to our law,” United States v. Beno, 324 F. 2d 582, 
587 (2d Cir. 1963), arising “ out of the fundamental demand 
for justice and fairness which lies at the basis of our juris­
prudence,” Lovely v. United States, 169 F. 2d 386, 389 (4th 
Cir. 1948). See Marshall v. United States, 360 U. S. 310 
(1959). Allowing the trial jury access to unfavorable 
background information, however pertinent to the issue of 
punishment and however clearly limited by jury instruc­
tions to that use, may itself amount to a denial of due 
process of law. Compare United States ex rel. Scoleri v. 
Banmiller, 310 F. 2d 720 (3d Cir. 1962), cert, denied, 374 
U. S. 828 (1963), with United States ex rel. Rucker v. 
Myers, 311 F. 2d 311 (3d Cir. 1962), cert, denied, 374 U. S. 
844 (1963). In any event, the possibility that the back­



55

ground information will be strongly prejudicial forces a 
defendant to a “ choice between a method which threatens 
the fairness of the trial of guilt or innocence and one which 
detracts from the rationality of the determination of the 
sentence.” A merican L aw Institute, Model, P enal Code, 
supra at 74.

In this aspect, Arkansas’ simultaneous submission of 
guilt and sentence to a jury is much akin to New York’s 
former practice of simultaneously submitting to a jury the 
two issues of the voluntary nature of a confession and the 
guilt of the accused. The former New York practice was, 
of course, struck down by this Court in Jackson v. Denno, 
378 U. S. 368 (1964), where the Court recognized that 
joint jury trial of the two issues prevented either from 
being “ fairly and reliably determined.” 378 U. S. at 389; 
see id. at 386-391. One fault of the practice was that:

. . .  an accused may well be deterred from testifying on 
the voluntariness issue when the jury is present be­
cause of his vulnerability to impeachment by proof of 
prior convictions and broad cross-examination . . . 
Where this occurs the determination of voluntariness 
is made upon less than all of the relevant evidence. 
(378 U. S. at 389, n. 16.)

It is in precisely the same manner that single-verdict 
capital sentencing tends either to make trials of guilt unfair 
—by forcing the defense to present evidence potentially 
helpful on the punishment issue and deathful on the issue 
of guilt20—or to produce the unfair result that men are

20 Cf. Whitus v. Balkcom, 333 P. 2d 496 (5th Cir. 1964). The 
clearest example of this is defense evidence which shows that the 
defendant was driven by psychiatric factors not amounting to 
legally cognizable insanity to commit the offense. Juries frequently 
consider that circumstance mitigating—at least in a potential death



56

sentenced to death “ upon less than all of the relevant evi­
dence” if the defense declines to take that risk. Not only, 
in such a case, is the jury empowered to act arbitrarily, see 
pp. 44-50 supra; it is virtually compelled to do so for want 
of information upon which non-arbitrary choice can be 
based.

In short, although the Due Process Clause guarantees a 
defendant a fair trial both on the issue of guilt, e.g., Irvin 
v. Dowd, 366 IT. S. 717 (1961), and on the issue of punish­
ment, e.g., Townsend v. Burke, 334 IT. S. 736 (1948), the 
single-verdict procedure employed in petitioner’s case de­
prives him of the one or the other. Cf. Fay v. Noia, 372 
IT. S. 394, 440 (1963). In view of the ready availability of 
alternative modes of procedure not involving this depriva­
tion—for example, the split-verdict procedure now in use

case—but its establishment coincidently establishes the defendant’s 
guilt.

Another example is suggested by Judge Henley’s reference be­
low (in connection with petitioner’s claim of racial discrimination 
in sentencing) that juries may consider mitigating the doubt 
engendered in a rape prosecution by a defense of consent which 
is not quite persuasive enough to convince the jurors to acquit the 
defendant. Judge Henley speculates that this factor, coupled with 
the observed fact that Southern Negro defendants almost never 
present the consent defense in cases involving white complainants, 
may account for the greater frequency of Negro death sentences, 
App. p. 21a infra. Of course, one reason why Southern Negroes 
do not present the consent defense, even where grounds for it 
exist, is that Southern jurors who believe the defendant may be 
as likely to convict him of rape for interracial seduction as for 
rape itself, while those who do not are likely to convict him of 
rape for maligning a white woman. These risks would be consider­
ably less significant at the penalty stage of a split-verdict proce­
dure, and before a jury guided by some objective standards, but 
in single-verdict practice they effectively compel the defendant to 
rely on the claim of no intercourse (or no proof of intercourse), 
leaving jurors who disbelieve that claim the sure impression of 
forcible and uninvited rape.



57

in a number of jurisdictions and uniformly recommended 
by modern commentators, see Frady v. United States, 348 
F. 2d 84, 91 n. 1 (I). C. Civ. 1965) (McGowan, J . ) ; cf. 
United States v. Gurry, 358 F. 2d 904, 914 (2d Cir. 1965)— 
we submit petitioner’s challenge to the single verdict 
procedure raises a Due Process issue of indisputable 
substance.

C. Petitioner’s challenge to the racially discriminatory appli­
cation of the death penalty by Arkansas juries raises sub­
stantial questions.

The district court below did not dispute petitioner’s legal 
position that discriminatory application of the death pen­
alty against Negroes convicted of the rape of white victims 
would, if proved, constitute a denial to those defendants 
of the equal protection of the laws guaranteed by the Four­
teenth Amendment. This position cannot be seriously dis­
puted. One of the cardinal purposes of the Fourteenth 
Amendment was the elimination of racially discriminatory 
criminal sentencing. The First Civil Rights Act of April 
9,1866, ch. 31, § 1, 14 Stat. 27, declared the Negroes citizens 
of the United States and guaranteed that “ such citizens, of 
every race and color, . . . shall be subject to like punish­
ment, pains, and penalties [as white citizens], and to none 
other, any law, statute, ordinance, regulation, or custom, to 
the contrary notwithstanding.” The Fourteenth Amend­
ment was designed to elevate the Civil Rights Act of 1866 
to constitutional stature. See, e.g., tenBroelc, Thirteenth 
Amendment to the Constitution of the United States, 39 
Calif. L. R ev. 171 (1951); F  airman, Does the Fourteenth 
Amendment Incorporate the Bill of Rights, 2 Stan. L. R ev. 
5 (1949). The Enforcement Act of May 31, 1870, ch. 114, 
§§ 16, 18, 16 Stat. 140, 144, implemented the Amendment



58

by reenacting the 1866 act and extending its protection to 
all persons. This explicit statutory prohibition of racially 
discriminatory sentencing survives today as R ev. Stat. 
§ 1977 (1875), 42 U. S. C. § 1981 (1964).

For purposes of the prohibition, it is of course imma­
terial whether a State writes on the face of its statute 
books: “ Rape shall be punishable by imprisonment . . . , 
except that rape by a Negro of a white woman, or any 
other aggravated and atrocious rape, shall be punishable 
by death by electrocution,” or whether the State’s juries 
read a facially color-blind statute to draw the same racial 
line. Discriminatory application of a statute fair upon 
its face is more difficult to prove, but no less violates the 
State’s obligation to afford all persons within its juris­
diction the equal protection of the laws. E.g., YicJc Wo v. 
Hopkins, 118 U. S. 356 (1886); Niemotko v. Maryland, 340 
U. S. 268 (1951) (alternative ground); Fowler v. Rhode 
Island, 345 U. S. 67 (1953); Hamilton v. Alabama, 376 U. S. 
650 (1964) (per curiam).21 And it does not matter that 
the discrimination is worked by a number of separate 
juries functioning independently of each other, rather 
than by a single state official. However it may divide re­
sponsibility internally, the State is federally obligated to

21 It is also immaterial whether a State imposes different pen­
alties for classes of eases defined in terms of race, or whether it 
imposes a penalty of death in all cases of a given crime, subject 
to the option of the jury in some racially defined sub-class of the 
cases. The Fourteenth Amendment’s obligation of equality extends 
not only to those “rights” which a State is federally compelled 
to give its citizens, but also to any benefits the State may choose 
to give any class of them, however gratuitously. Brown v. Board 
of Education, 347 U. S. 483 (1954) ; Watson v. City of Memphis, 
373 U. S. 526 (1963).



59

assure the equal application of its laws.22 This Court has 
long sustained claims of discriminatory ju r y . exclusion 
upon a showing of exclusion continuing during an extended 
period of years, without inquiry whether the same jury 
commissioners served throughout the period. E.g., Neal 
v. Delaware, 103 U. S. 370 (1881); Bush v. Kentucky, 107 
U. S. 110 (1882); Hernandez v. Texas, 347 IT. S. 475 (1954). 
Congress, when it enacted the 1866 Civil Rights Act know­
ing that “ In some communities in the South a custom pre­
vails by which different punishment is inflicted upon the 
blacks from that meted out to whites for the same of­
fense,” 23 intended precisely by the Act, and subsequently 
by the Fourteenth Amendment, to disallow such “ custom” 
as it operated through the sentences imposed by particular 
judges and juries.24

So the question on this record is one of p roof: whether 
petitioner has made a sufficient showing of racially dis­
criminatory capital sentencing under Arkansas’ rape stat­
utes. That question, in turn, is comprised of at least two 
subsidiary questions: the standard of proof to be applied 
to such a contention, and whether petitioner’s proof met 
the standard. The district court’s dispositions of both sub­

22 Execution by the State of the death sentence which it has 
given juries discretion to impose clearly provides that “ interplay 
of governmental and private action,” N. A. A. C. P. v. Alabama, 
357 U. S. 449, 463 (1958), quoted in Anderson v. Martin, 375 
U. S. 399, 403 (1964), which makes the State responsible for the 
discrimination. Shelley v. Kraemer, 334 U. S. 1 (1948).

23 Cong. Globe, 39th Cong., 1st Sess. 1758 (4/4/1866) (remarks 
of Senator Trumbull, who introduced, reported and managed the 
bill which became the act).

24 See the text of the act supra; see also, e.g., Cong. Globe, 39th 
Cong., 1st Sess. 475 (1/29/1866), 1759 (4/4/1866) (remarks of 
Senator Trumbull).



60

questions, we submit, raise substantial doubts meriting al­
lowance of an appeal.

1. Standard o f proof.

The court plainly threw the burden of persuasion on the 
factual question of discrimination fully upon the peti­
tioner.25 Although its opinion does not speak directly to the 
question, it thus tacitly rejected petitioner’s contention (Tr. 
154-156) that the prima facie-evidence principle of this 
Court’s jury-exclusion decisions applies to proof of racial 
discrimination in sentencing. “ [T]he Court doubts that 
such discrimination, which is a highly subjective matter, 
can be detected accurately by a statistical analysis such as 
was undertaken here. Statistics are elusive things at best, 
and it is a truism that almost anything can be proved by 
them.” 257 F. Supp. at 720, App. pp. 21a-22a infra.

But discrimination is always a subjective matter, and 
in cognate situations this Court has not required that it be 
proven as a subjective fact. Such a requirement, of course, 
would write an effective end to the Equal Protection Clause 
as a guarantor of enforcible rights in contemporary times. 
Those who would discriminate today on grounds of race 
are the beneficiaries of considerable sophistication in the 
art, which has advanced since the days of the Black Codes. 
Racial distinctions no longer appear on the face of laws 
or regulations, and the practitioners of discrimination no

25 “ The ease studies, and the number of death sentences im­
posed are simply too few in number to afford convincing proof 
of the propositions urged by petitioner.

. . . the Court is simply not prepared to convict Arkansas 
juries of unconstitutional racial discrimination . . .

. . . the Court is simply not convinced . . . ” (257 F. Supp. 
at 720, App. pp. 20a, 21a infra).



61

longer overtly profess that their principles of decision are 
racial—except, of course, where they rightly or wrongly 
believe that even professed discrimination cannot be legally 
thwarted, as, e.g., Burton v. Wilmington Parking Author­
ity, 365 U. S. 715 (1961); Evans v. Newton, 382 XL S. 296 
(1966).

Just this consideration, coupled with a realistic appre­
ciation of the impossibility of extracting an admission of 
discrimination from the covert discriminator, has led to 
this Court’s development of the doctrine that a prima facie 
showing of discrimination can be made objectively and 
statistically. Because of the Fourteenth Amendment’s 
overriding purpose to secure racial equality, “ racial classifi­
cations [are] ‘constitutionally suspect,’ . . . and subject to 
the ‘most rigid scrutiny.’ . . . ” McLaughlin v. Florida, 
379 IT. S. 184,192 (1964). This principle has as its corollary 
that a sufficient initial showing of unequal treatment of 
the races is made, calling State procedures in question, 
whenever it appears that the races are substantially dis­
proportionately represented in groups of persons differently 
disposed of under those procedures: such a showing compels 
the inference that a State is drawing the racial line unless 
the State offers some justification in non-racial factors for 
the disproportion. E.g., Norris v. Alabama, 294 U. S. 587 
(1935); Hernandez v. Texas, 347 U. S. 475 (1954); Beece 
v. Georgia, 350 U. S. 85 (1955); Eubanks v. Louisiana, 356 
IT. S. 584 (1958); Gomillion v. Lightfoot, 364 IT. S. 339 
(1960); cf. Oyama v. California, 332 U. S. 633 (1948). The 
Fourth Circuit has freely applied the rule to education 
cases. Chambers v. Hendersonville Board of Education, 
364 F. 2d 189 (4th Cir. 1966); Johnson v. Branch, 364 F. 2d 
177 (4th Cir. 1966).



62

Here tlie disproportion is extreme: the court “under­
stands Dr. Wolfgang’s conclusion to be that a Negro man 
who is convicted of raping a white woman has about a 
50 percent chance of receiving a death sentence, regardless 
of the facts and circumstances surrounding the crime, 
whereas a man who is convicted of criminally assaulting a 
woman of his own race stands only about a 14 percent 
chance of receiving the death sentence.” 257 F. Supp. at 
719, App. p. 17a infra. This, the court agreed, was a “ dif­
ferential [that] could not be due to the operation of the 
laws of chance.” 257 F. Supp. at 718, App. p. 16a infra. 
Moreover, every possible explanation for the disproportion 
which Dr. Wolfgang’s comprehensive study could identify 
and subject to analysis failed to account for the racial 
figures. Yet, in this state of the record, with respondent 
having offered no rebuttal evidence, the court concluded 
principally on the basis of supposed incompleteness in the 
data26 and of speculation concerning the effect, of possible 
explanatory variables testable on the basis of more complete 
data27 that discrimination was not proved.

26 “While the statistical evidence produced in this case is more 
extensive and sophisticated than has been produced heretofore 
the Court is not convinced that it is sufficiently broad, accurate, 
or precise as to establish satisfactorily that Arkansas juries 
in general practice unconstitutional racial discrimination in 
rape cases involving Negro men and white women or to require 
or justify the inference that the Garland County jury which 
tried petitioner was motivated by racial discrimination when 
it failed to assess a punishment of life imprisonment.”

“ ■ . . The case studies, and the number of death sentences 
imposed are simply too few in number to afford convincing 
proof of the proposition urged by petitioner” (257 F. Supp. 
at 719-720, App. pp. 18a, 19a infra).

27 For example, the court’s speculation respecting the effect of 
presentation of the consent defense. See pp. 27-28 supra; pp. 
66-67 infra. Presentation of the consent defense was, of course, 
one of the variables inquired into by the Wolfgang study, see



63

We submit this disposition should be subjected to review. 
No reason appears why the prima facie-eyidence principle 
previously applied to other sorts of challenged discrimina­
tion, should not be applied here. Petitioner’s evidence was 
strong even if, as the court thought, factual matters which 
had escaped the dragnet of the Wolfgang study made it 
less than conclusive. Concerning all of the speculations 
which the court offered to oppose Dr. Wolfgang’s expert 
conclusion, there was not a shred of proof. If these things 
were real, they were in the power of the State of Arkansas 
to unearth and prove. Certainly the State’s resources for 
investigation are superior to petitioner’s. A pauper, he 
has been forced to rely on this study whose limitations, 
whether or not they are significant, derived from the limi­
tations of resources of its sponsors. Arkansas hardly suf­
fers from comparable limitations. Nor can it be thought 
that Arkansas’ access to state records and to the personnel 
involved in state trials is more restricted than that of a 
litigant attempting in a Southern State to obtain evidence 
relating to a claim of racial discrimination. Every justifi­
cation for shifting the burden of persuasion to the State, 
as has been done in litigation of other issues of this sort, 
applies with evident force here. The district court’s failure 
to recognize this principle plainly presents a substantial 
question of law for appellate consideration.

In addition, the district court appears to have taken the 
view’ that it was incumbent upon petitioner to show dis­

Petitioner’s Exhibit P-2, p. 18, item VI (B )(2 ). Omission to 
analyze its effect was due to lack of sufficient information. 
See pp. 22-25 supra. Presumably the information is available to 
the State of Arkansas, whose attorneys tried all the rape cases 
which would have to be studied. Cf. counsel for respondent, 
cross-examining Dr. Wolfgang at the hearing below: “These eases 
just date back to 1945. There are still a lot of people around.” 
Tr. 79.



64

crimination by juries in Garland County, the county of peti­
tioner’s conviction, rather than by juries in the State of 
Arkansas as a unit. See 257 F. Supp. at 719, n. 9 and ac­
companying text, App. p. 18a infra; Tr. 90-91, 118-120, 
122, 134-135. No explanation is given for this view. Yet 
it is the State of Arkansas, not Garland County, which has 
sentenced William Maxwell to death. It is the State, not 
the County, which is compelled by the Fourteenth Amend­
ment to afford him the equal protection of the laws. If 
juries in the State as a whole do generally apply the State’s 
vague and permissive capital punishment statute in such a 
manner as to effect discrimination against Negroes con­
victed of rape of white women, the State’s statute is invalid 
as applied to any member of the class discriminated against. 
Here again, to say the least, a substantial question is raised 
for appeal by the district court’s handling of legal issues 
involved in the problem of proof.

2. Evaluation of the evidence.

Apart from any question of the standard to which peti­
tioner’s proof was to be subjected, the district court’s evalu­
ation of the evidence raises substantial questions for ap­
peal. The court declined to accept Dr. Wolfgang’s find­
ings in part because “ The case studies, and the number of 
death sentences imposed are simply too few in number to 
afford convincing proof of the proposition urged by peti­
tioner” (p. 28 supra). Its reference to the “ number of 
death sentences imposed” expressly purports to take ac­
count of the fact that, among the individual rape trials 
studied, several defendants who had undergone more than 
one trial were included more than once. “ [Mjaking allow­
ances for duplications it appears that only seven Negro men 
were sentenced to die for raping white women” (257 F.



65

Supp. at 719, App. p. 19a infra). However, Dr. Wolfgang 
himself explained that it was the number of trials, rather 
than the number of defendants that is statistically impor­
tant for present purposes: each occasion on which an 
Arkansas jury sentences a Negro defendant to death for 
rape of a white woman, or sentences a defendant to life in 
a case involving other racial combinations is an additional 
indication of the manner in which the Arkansas statute is 
being applied (see Tr. 60, 62). As for the court’s concern 
with the number of case studies in toto, this ignores that 
the whole purpose of the statistical analysis conducted by 
Dr. Wolfgang was to satisfy him—as, in his expert opinion, 
it did— that the generalizations drawn from the data could 
be reliably based on the number of cases observed. In this 
aspect, as in all others, Dr. Wolfgang’s opinion was neither 
shaken on cross-examination nor rebutted in any way.

We do not attempt here a description of the careful pre­
planning, the rigorous data-gathering methodology, the 
extensive canvass of data sources by the field researchers, 
or Dr. Wolfgang’s own painstaking statistical analysis of 
the data collected. These are summarized at pp. 13-27 
supra and disclosed more fully by the transcript and ex­
hibits below (Tr. 10-99; Petitioner’s Exhibit P-4). We do 
invite the Court’s attention to these primary sources for 
they demonstrate as no characterization can the integrity 
of the research underlying Dr. Wolfgang’s findings and 
ultimate conclusions.

Of course, as the court below noted, Dr. Wolfgang’s testi­
mony was qualified with all of the cautions customary to a 
social scientist. But his testimony as a whole will not sup­
port the view which the district court took of it, that Dr. 
Wolfgang’s study provides only “ meager material” (257



66

F. Supp. at 720, App. p. 20a infra) on which to base con­
clusions. Pressed on cross-examination with questions ad­
dressed specifically to the completeness of the underlying 
data and its analysis, Dr. Wolfgang was asked: “ You 
wouldn’t say the report could have been better?” His reply: 
“ No, I am gratified the report is as good as it is” (Tr. 77). 
“ [I]sn ’t this imperfect proof?” “ No, I could not charac­
terize it as imperfect proof” (Tr. 82). At least in the ab­
sence of any countervailing evidence or sound reason to 
discredit Dr. Wolfgang’s own confidence in his analysis, 
the district court lacked basis in the record for giving no 
credence to conclusions that Dr. Wolfgang opined, without 
expert contradiction, were adequately sustainable under ac­
cepted scientific standards (see pp. 23-25 supra). Again, 
we invite this Court’s attention to the whole record below, 
which demonstrates the sound factual basis for those con­
clusions. The district court’s reliance on that portion of 
the witness’s written report which characterized his findings 
as “ preliminary” and “ tentative” is clearly erroneous. Dr. 
Wolfgang stated expressly several times that his report 
was “preliminary” and “ tentative” only as regarded the 
entire eleven-State survey, not as regarded the state of 
Arkansas itself (Tr. 59, 93-94).

Similarly, inadequate consideration was given to the con­
clusions of Mr. Monroe, the expert who conducted the sam­
pling resulting in the selection of 19 Arkansas counties to 
be studied. While recognizing that the “ sample drawn by 
Mr. Monroe seems to have been drawn in a manner which 
is acceptable statistically” (257 F. Supp. at 720, App. p. 
19a infra), the Court appears to have taken its own view 
that the counties were not representative. This may well 
have been due to the court’s erroneous legal conception



67

that Garland County, rather than the State of Arkansas, 
was the entity to be represented, see p. 18a infra; if this 
is not the explanation, the Court’s finding is simply evi­
dentially unsupported. The Court seemed to regard differ­
ential Negro population in the various counties of the state 
—a differential which it noticed judicially-—as critically 
affecting the validity of Mr. Monroe’s sampling process. 
No reason appears for this view, and, again, it has no sup­
port whatever in the record.

Finally, the Court laid great stress upon its supposition 
that a factor not explored in the Wolfgang analysis for 
want of sufficient data—the “ issue of consent” which “ [i]n 
cases not involving inter-racial situations . . . may be and 
frequently is very real” but which “ from a factual stand­
point is much less likely to be present in cases in which 
white women have been attacked by Negro men” (257 F. 
Supp. at 720, App. p. 21a infra)—explained the racially 
disproportioned death sentencing observed. This is plainly 
the sheerest speculation. Even were it well founded in fact, 
as a basis for the further speculation that as a result of 
the supposed reluctance of white women in Arkansas to 
engage in consensual sexual relations with Negroes “ the 
trial jurors may have a firmer and more abiding conviction 
of the truth” of rape charges in the case of Negroes ac­
cused of rape of wdiite complainants (257 F. Supp. 720-721, 
App. p. 21a infra), it is dubious at, best that such racial 
assumptions could permissibly be accepted as a constitu­
tional explanation for differential death sentencing. In­
deed, if speculation is to be engaged in, any experienced 
criminal lawyer in the South of the United States well 
knowrs that the failure to present the defense of consent in 
interracial rape cases is itself a product of the discrimina­
tory pattern of Southern justice which petitioner here at­



tacks. Southern jury attitudes, obvious to experience and 
supported inferentiallv by the AVolfgang study, have long 
impressed upon defense counsel the extreme unwisdom of 
advancing the consent defense on behalf of a Negro defen­
dant where the complainant is white. If the defense is 
believed, the offense may be regarded by the jury as no 
less serious than rape; if discredited, the defendant has 
added an unpardonable slander to his offense. These com­
monplaces can hardly be made the basis of judicial decision, 
but neither can they be ignored in the face of the equally 
non-justiciable considerations urged by the Court below as 
grounds for disbelieving the considered judgment of peti­
tioner’s expert. On the whole record, substantial ground 
exists to upset the factual findings of the district court. 
On this issue, as on the other related legal points described 
above, petitioner should be entitled to his appeal.

D. Petitioner’s claim that his conviction was unconstitutional 
because the Arkansas juror selection process provides the 
occasion for racial discrimination also presents a sub­
stantial question.

Though petitioner, in his first habeas corpus application, 
raised the claim of the illegality of his conviction because 
of the Arkansas practice of selecting jurors by use of 
racially designated poll tax books, this claim was renewed 
in the instant application because subsequent to rejection 
of the claim by the Court of Appeals, this court granted 
certiorari on question 4(a) in Sims v. Georgia, 384 U. S. 
998 (1966):

4. Is a conviction constitutional where:

“ (a) local practice pursuant to state statute requires 
racially segregated tax books and county jurors are 
selected from such books;”



69

This question is now before this Court pursuant to its 
grant of certiorari; briefs have been submitted and oral 
argument is pending (Sims v. Georgia, No. 251, Oct. Term 
1966). This Court, therefore, has already indicated its 
view that this question—identical to that raised by peti­
tioner in his habeas corpus applications—is one of sub­
stance. However, the district court, purporting to exercise 
discretion under Sanders v. United States, 373 U. S. 1 
(1963), refused to consider the contention. Noting that the 
claim had previously been considered and rejected by that 
court and the Court of Appeals, the district court declined 
to reexamine the merits of the question and was “ not per­
suaded to do so by the action of the Supreme Court in 
recently granting certiorari in the case of Sims v. Georgia 
. . . ” 257 F. Supp. at 713, App. p. 5a infra. This dispo­
sition by the Court ignored the overriding test of Sanders 
for deciding when successive habeas applications on grounds 
previously heard and determined should be entertained.

As stated in Sanders, “ Controlling weight may be given 
to denial of a prior application for federal habeas corpus 
or § 2255 relief only if . . . the ends of justice would not be 
served by reaching the merits of the subsequent applica­
tion” , 373 U. S. at 15. This standard imports a requirement 
that district courts determine whether to entertain on the 
merits a claim previously heard and rejected by reference 
to all the factors which bear on whether refusal to enter­
tain the claim will or will not serve the ends of justice. 
In this case the dual considerations that (1) this is a death 
case and that (2) this Court is considering the issue of 
law, should have constrained the district court to entertain 
petitioner’s claim. This is particularly true since Sanders 
states that a successive applicant for habeas corpus relief 
“may be entitled to a new hearing upon showing an inter­
vening change in the law. . . . ” 373 U. S. at 17. Thus 
the possibility of a definitive interpretation of the law by



70

this Court should be enough to prevent outright rejection 
of the claim on the ground that it had previously been 
entertained. Certainly the twin factors of imminent execu­
tion and consideration by this Court of the claim of jury 
discrimination make this question—and the district court’s 
failure to reexamine it—worthy of appellate consideration.28

CONCLUSION

For the foregoing reasons, the writ of certiorari should 
issue as prayed and Circuit Judge Matthes’ order deny­
ing the certificate of probable cause and a stay of execu­
tion should be reversed.

Respectfully submitted,

Jack Greenberg
J ames M. Nabrit, III
Norman C. A maker
M ichael Meltsner

10 Columbus Circle 
New York, New York 10019

George H oward, Jr.
329% Main Street 
Pine Bluff, Arkansas

A nthony G. A msterdam 
3400 Chestnut Street 
Philadelphia, Pa. 19104

Attorneys for Petitioner

28 Quite apart from the argument in the text bottomed on 
Sanders, counsel in this case-—who in the main are also counsel 
in Sims v. Georgia, supra—have presented argument in the Sims 
brief demonstrating the substantiality of the jury discrimination 
claim. No useful purpose would be served by iteration here; the 
court is referred to Argument II B beginning at p. 52 of peti­
tioner’s brief in Sims v. Georgia, No. 251, Oct. Term 1966.



APPENDIX



APPENDIX

Memorandum Opinion

I n the
UNITED STATES DISTRICT COURT 

E astern D istrict of A rkansas 

P ine Bluff Division 

PB-66-C-52

W illiam L. Maxwell,
Petitioner,

0. E. B ishop, Superintendent of tlie Arkansas 
State Penitentiary,

Respondent.

This is a habeas corpus proceeding wherein petitioner, 
William L. Maxwell, attacks collaterally for the second time 
his 1962 conviction in the Circuit Court of Garland County, 
Arkansas, of the crime of forcible rape. The sentence im­
posed upon him was death, Ark. Stats. Ann., §41-3403.

Petitioner, a Negro man, was charged with raping a 35 
year old, unmarried white woman on the night of November 
3,1961. He pleaded not guilty and was tried before a jury. 
During the trial and during subsequent proceedings in the 
State court petitioner was represented by capable counsel 
of his own choice. Following the pronouncement of sen­
tence and entry of judgment by the Circuit Court, petitioner 
appealed to the Supreme Court of Arkansas where his con­



2a

viction was affirmed. Maxwell v. State, 236 Ark. 694, 370 
S. W. 2d 113.

Subsequently, in early 1964 shortly before his scheduled 
execution petitioner filed in this Court a petition for habeas 
corpus challenging his conviction and sentence on a number 
of federal constitutional grounds. The case was assigned 
to District Judge Gordon E. Young who held a full evi­
dentiary hearing and filed a detailed memorandum opinion 
denying the petition. Maxwell v. Stephens, E. D. Ark., 229 
F. Supp. 205. The Court of Appeals, one judge dissenting, 
affirmed. Maxwell v. Stephens, 8 Cir., 348 F. 2d 325. In 
late 1965 the Supreme Court of the United States denied 
certiorari. Maxwell v. Stephens, 382 U. S. 944.

In due course the Governor of Arkansas scheduled the 
execution of petitioner for late July 1966; however, the 
execution was stayed administratively until September 2. 
That stay is still in effect.

Instant petition was filed on July 21, 1966. On August 5 
a pre-trial conference was held, and the case was set for 
hearing on the merits on August 22. That hearing has been 
held as scheduled. The Court has given careful considera­
tion to the materials before it, including oral testimony 
and documentary evidence. This opinion incorporates the 
Court’s findings of fact and conclusions of law.

In the petition now before the Court petitioner alleges 
certain things that he alleged in his initial habeas corpus 
action; some things that were alleged in that action are 
not alleged here;1 and the present petition contains some 
allegations that did not appear in the original proceeding.

1 Contentions made in the original proceeding and not urged 
here are: that petitioner was the victim of an unlawful arrest; 
that there was an unlawful search of petitioner’s person and home; 
that evidentiary material was unlawfully seized in the course of 
the searches; that petitioner was mistreated physically and that a



3a

Petitioner now contends that racial discrimination was 
practiced in the selection of the petit jury which tried and 
convicted him;* that it is unconstitutional to put anyone 
to death for the crime of rape ■;* that certain Arkansas stat­
utes to be mentioned dealing with the crime of rape and the 
punishment to be imposed therefor have been applied un­
constitutionally to Negro men convicted of raping white 
women;* that certain Arkansas statutes dealing with the 
imposition of the death penalty and certain Arkansas trial 
procedures in capital cases amount to a denial of due proc­
ess of law; that petitioner was mentally incompetent to 
stand trial in the State court, and that his mental condition 
is now such that it would be unconstitutional to put him to 
death.2

In his pleadings respondent denies that any of peti­
tioner’s contentions have merit and, in addition, pleads res 
judicata, that is to say, respondent asserts that all conten­
tions made here were either raised or could have been 
raised in the original proceeding in this Court and should 
not now be considered.

As far as respondent’s plea of res judicata is concerned, 
it is settled that the conventional rule that issues which 
were litigated or which could have been litigated in an

confession was extorted from him; that petitioner was tried in a 
hostile atmosphere. All of those contentions were considered and 
rejected by Judge Young; not all of them were urged on appeal; 
those that were were rejected by a majority of the Court of 
Appeals. This Court considers that all of the contentions not 
brought forward into this proceeding have been abandoned or 
that their lack of merit has been established in the original col­
lateral attack on the State court judgment.

2 The asterisks appearing in text indicate that the contention 
marked by the asterisk was raised in the original habeas corpus 
case.



4a

original proceeding will not be again examined in a subse­
quent proceeding between the same parties or their privies 
does not apply with strictness to habeas corpus proceedings 
in the federal courts. Whether a federal court will enter­
tain a successive application for a writ of habeas corpus, 
and whether and to what extent such a court will consider 
in connection with a successive petition matters which 
were or could have been determined in the original pro­
ceeding are questions addressed to the sound discretion of 
the court. See 28 U. S. C. A., §2244; Sanders v. United 
States, 373 U. S. 1; Simcox v. Harris, 8 Cir., 324 F. 2d 377. 
Of course, the fact that a specific contention brought for­
ward in a successive application has been considered and 
rejected in connection with an earlier application is a 
factor to be considered by the court to which the successive 
application is addressed.

In this connection the Court in its pre-trial conference 
order in this case cautioned counsel for petitioner that if 
they knew of any constitutional grounds for attack on his 
conviction which had not been raised, such grounds should 
he brought forward in this proceeding since the Court 
“would be most reluctant to consider in some subsequent 
proceeding any grounds of attack which could have been 
raised in this proceeding.” No contentions other than those 
previously mentioned have been made.

Taking up first the attack on the make-up of the jury, 
petitioner’s complaint is that the Garland County jury 
commissioners chose the members of the jury panel from 
tax records identifying poll tax payers by race. That is the 
same complaint about the jury which was made in the origi­
nal habeas corpus case, and the record here is the same as 
the one before the Court in that case. The matter was con­
sidered thoroughly by Judge Young and by the Court of



5a

Appeals and, as indicated, the argument was rejected. This 
Court sees no occasion to reexamine the question and is 
not persuaded to do so by the action of the Supreme Court 
in recently granting certiorari in the case of Sims v. Geor­
gia, 384 U. S. 998, noted in 34 U. S. Law Week 3429.

The Court finds it convenient to consider next the con­
tentions with respect to the mental condition of petitioner.

As to the mental condition of petitioner at this time, it 
was agreed following the pre-trial conference that petitioner 
would be examined by the staff of the Arkansas State Hos­
pital for Nervous Diseases. The examination was made and 
petitioner was found to be without psychosis. He thus, in 
effect, had the benefit of the post-conviction examination 
contemplated by Ark. Stats. Ann., §43-2622. In addition, 
at the request of counsel for petitioner he was examined by 
Dr. William G. Eees, Professor of Psychiatry and head of 
the Department of Psychiatry at the University of Arkan­
sas Medical Center. Dr. Eees also found petitioner to be 
without psychosis. Petitioner was present at the hearing 
and was observed by the Court; the Court noted no irra­
tionality in petitioner’s behavior, and petitioner gave no 
evidence of present mental incompetency. While the con­
tention has not been abandoned formally, it has not been 
pressed, and the Court finds it to be without merit.

With respect to petitioner’s mental incompetency in 1962 
to stand trial for the offense allegedly committed in No­
vember 1961, the thrust of the argument seems to be not 
so much that petitioner was in fact mentally incompetent 
to stand trial but rather that in the circumstances the 
Circuit Court was required to make a judicial determination 
of his competency, that no such determination was made, 
and that its absence voids the conviction. Pate v. Eobinson, 
383 U. S. 375; see also United States ex rel. Eobinson v. 
Pate, 7 Cir., 345 F. 2d 691.



6a

The facts in that case were that the defendant, Robinson, 
was tried to the court without a jury in Illinois on a charge 
of first degree murder; his defense was insanity, and his 
mental condition both at the time of the commission of the 
alleged offense and at the time of trial were directly in issue 
in the case. He had a long history of behavior indicating 
serious mental disease; that history was brought out by 
testimony in the course of the trial, and four witnesses 
testified that in their opinion defendant was insane. In the 
course of the trial the prosecuting attorney conceded that 
there was doubt as to the sanity of the defendant and 
suggested that a psychiatrist in the employ of Cook County 
be called as a witness. Notwithstanding the fact that a stat­
ute of Illinois provided that whenever the evidence raises 
a “ bona fide doubt” as to a defendant’s competency to stand 
trial, it is the duty of the judge on his own motion to im­
panel a jury to pass on the question,3 the trial judge indi­
cated that it was not necessary for the State to call the 
psychiatrist, did not impanel a jury to consider the ques­
tion of Robinson’s sanity, and found the defendant guilty 
without making any specific finding as to his competency 
to stand trial. Both the Court of Appeals and the Supreme 
Court held that this action amounted to a denial of due 
process of law.

The facts in this case are quite different from those in 
Robinson. As far as petitioner’s mental competency is 
concerned, the transcript of the proceedings in the Circuit 
Court reflects the following:

On November 7, 1961, an information was filed by the 
Prosecuting Attorney charging petitioner with the crime of

3 111. Rev. Stat., e. 38, §104-2, referred to in the opinions of 
both the Supreme Court and of the Court of Appeals.



7a

rape committed on November 3. On November 28, 1961, it 
having been made to appear to the Court that petitioner 
desired counsel and was without means to employ counsel, 
an order was entered appointing two members of the Hot 
Springs, Arkansas Bar to represent petitioner without 
charge. On November 30 those attorneys proceeding under 
the provisions of Ark. Stats. Ann., §§43-1301 et seq. filed 
a petition for an order committing petitioner to the State 
Hospital for observation and report ;4 on the same day the 
petition was granted and petitioner was committed for a 
period of not more than one month. Petitioner was de­
livered to the Hospital authorities on December 1, and 
the Hospital staff made its report on December 29.

The Hospital report, signed by Dr. E. W. Crow, the 
examining physician, and approved by Dr. George W. Jack- 
son, the Hospital superintendent, contained a diagnosis of 
“without psychosis.” The report recited that it was the 
opinion of the examining physician and of the joint psy­
chiatric staff that petitioner “was not mentally ill, to the 
degree of legal irresponsibility at the time of this mental 
examination” and “ was probably not mentally ill, to the 
degree of legal irresponsibility at the time of the alleged 
commission of his acts.” 5

On January 15, 1962, petitioner, still represented by his 
appointed attorneys, was arraigned and entered a plea of 
not guilty. No suggestion was made to the Circuit Judge 
that petitioner was not mentally competent to plead or to

4 The filing of such a petition is not an uncommon practice in 
Arkansas in eases involving sexual offenses even where there is 
no real question as to the sanity of the defendant; the request 
may be made as a precautionary measure or at least as a time 
gaining device.

5 The language of the report tracks the language of the statute.
See Trotter and Harris v. State, 237 Ark. 820, 822, 377 S.W. 2d 
14, -------



8a

stand trial. On February 5 the case was set for trial, but 
a telegram was received by the Prosecuting Attorney to the 
effect that Mr. Christopher C. Mercer, Jr., a Negro attorney 
of Little Rock, had been employed to represent petitioner; 
accordingly, the setting was cancelled, and the case was 
passed for the time being. On the same day Mr. Mercer 
moved for a continuance of the case. That motion was 
granted, and by agreement the case was set for trial on 
March 19. At this point in the proceedings petitioner’s 
appointed counsel were permitted to withdraw from the 
case.

Prior to the trial the Circuit Court was not requested to 
hold any sanity hearing or to take any testimony as to the 
mental condition of the accused; insanity was not an issue 
at the trial. No question of petitioner’s mental competency 
was raised in connection with his appeal to the Supreme 
Court of Arkansas nor in connection with the original 
habeas corpus proceeding which he filed in this Court.

Conceding that Pate v. Robinson, supra, emphasizes that 
it is a denial of due process of law to put a person to trial 
on a criminal charge when he lacks the mental competency 
to stand trial, this Court does not believe that that decision 
or any other decision makes it the constitutional duty of 
State trial judges, to hold sanity hearings on their own 
motion simply because there has been a routine pre-trial 
psychiatric examination of the defendant resulting in a 
negative report.

Certainly, in connection with this successive application 
for habeas corpus this Court is not willing to hold that the 
absence of a sanity hearing in the State court deprived peti­
tioner of any federally protected right. It must be remem­
bered that at the trial of the case petitioner was repre­
sented by an attorney not only of his own choice but also



9a

of his own race. Presumably, if petitioner had been unable 
to comprehend the nature of the proceedings, to understand 
the charges against him, or to communicate intelligently 
with his attorney relative to his defense, that inability 
would have manifested itself to counsel prior to or during 
the trial and counsel would have brought the matter to the 
trial court’s attention.

After petitioner’s conviction his attorney filed a long mo­
tion for a new trial attacking the conviction on 40 grounds; 
mental incompetency was not one of them.

In the course of the pre-trial conference in this case, 
which was attended by Mr. Mercer although he does not rep­
resent petitioner in this case, the question of petitioner’s 
mental competency to stand trial was discussed to some 
extent and nothing was said which would indicate that there 
is any real basis for belief that petitioner was not mentally 
competent in 1962. Nor is there anything in the reports 
of the State Hospital Staff or of Dr. Bees, which would 
form the basis for such a belief. Petitioner may be of some­
what low mentality, but mere mental weakness is not the 
equivalent of mental incompetency to stand trial or to be 
held guilty of a crime.

Before discussing the remaining contentions of petitioner 
the Court considers it advisable in the interest of precision 
to make some general comments relative to sentencing pro­
cedures in the Arkansas courts.

In all non-capital criminal cases, whether felonies or mis­
demeanors, which are tried to juries, the jury affirmatively 
fixes within statutory limits the punishment to be imposed. 
If the jury agrees that the defendant is guilty but is un­
able to agree on the punishment, it may, if it desires to do 
so, return the verdict of guilty and request the judge to 
fix the punishment.



10a

In capital cases the procedure is somewhat different. 
Under the substantive criminal code of Arkansas the pun­
ishment, and the only punishment, provided for a capital 
offense, such as first degree murder or rape, is death by 
electrocution. However, by virtue of Act 187 of 1915, which 
now appears as Ark. Stats. Ann., §43-2153, a trial jury in a 
capital case has the right to render a “ verdict of life im­
prisonment in the State penitentiary at hard labor” in lieu 
of the death penalty. But, if the defendant is found guilty 
and punishment is not assessed at life imprisonment, the 
legal penalty is automatically death.

It is thus not correct, strictly speaking, to say that Arkan­
sas juries “ impose the death penalty” on anyone. Rather, 
those juries have the right in a sense to exercise clemency 
toward particular defendants by assessing the penalty of 
life imprisonment at hard labor in a capital case.

The Arkansas statutes attacked by petitioner in general 
and in their application to Negro men convicted of raping 
white women are Ark. Stats. §41-3403 and §43-2153, read 
together.

The basic argument that it is unconstitutional to inflict 
the death penalty upon any person for the crime of rape 
presents a question of law only which has been ruled upon 
adversely to petitioner by Judge Young and by the Court 
of Appeals. A possible variant of that basic argument to 
the effect that it is unconstitutional to permit a jury of 
twelve people, with responsibility divided among them, to 
determine ultimately whether a person convicted of a capi­
tal crime shall suffer death or be imprisoned for life is like­
wise rejected by this Court. If a State can constitutionally 
impose the death penalty for a crime, this Court sees no 
constitutional objection to permitting a jury rather than 
a trial judge to decide whether that penalty shall be imposed



11a

in a particular case. And in this connection it might be 
pointed out that the obvious purpose of section 43-2153 is 
to permit juries to extend a degree of mercy to defendants 
convicted of capital crimes, not to make the assessment of 
the death penalty easier or more likely.

The argument is made, however, that in any event it is 
a denial of due process to permit a jury to make its deter­
mination solely by the exercise of its collective discretion 
without standards or guide lines laid down in the statutes, 
or judicial decisions, or in the instructions of the court.

It may be conceded that the Arkansas statutes dealing 
with rape and dealing with capital punishment do not 
purport to set up any standards by which the jury is to 
exercise its discretion in determining whether it should 
exercise the power conferred upon it by section 43-2153, 
and it will be assumed that no such standards are to be 
found in the reported decisions of the Supreme Court of 
Arkansas. Nor did the Circuit Court in its charge to the 
jury attempt to lay down any principles which should be 
applied in determining whether petitioner, if convicted, 
should be punished by life imprisonment rather than by 
death.®

The Court does not think, however, that it is constitu­
tionally necessary for specific standards or guide lines to 
be laid down or brought to the attention of the jury. 
Whether a convicted rapist or murderer is to suffer death, 
on the one hand, or life imprisonment, on the other, rests 
under Arkansas procedure, within the discretion of the 
jury, to be exercised in the light of the judgment, common 
sense, and experience of the jurors. Jurors are presumed 6

6 It does not appear that counsel for petitioner requested any 
instructions on the subject.



12a

to be persons of good judgment and common sense. If they 
do not know without being told that in determining whether 
clemency should be extended in a given case they should 
take into consideration all of the relevant facts and cir­
cumstances shown in evidence and should weigh aggravat­
ing circumstances, if any, against mitigating circumstances, 
if any, no useful purpose will be served by telling them.

On this phase of the case petitioner again relies on a 
very recent Supreme Court decision. Giaccio v. Pennsyl­
vania, 382 U. S. 399. Again, his reliance is misplaced.

Oiaccio involved a peculiar 1860 statute of Pennsylvania 
which permitted a jury in a misdemeanor case to deter­
mine by its verdict whether a defendant acquitted on a mis­
demeanor charge might nonetheless be taxed with the costs 
of the prosecution. Giaceio was tried on a misdemeanor 
charge; the jury found him not guilty but taxed him with 
the costs. The statute itself prescribed no standards by 
reference to which the jury was to determine whether an 
acquitted defendant should be charged with costs. How­
ever, Pennsylvania decisions had established that costs 
were not to be charged against an acquitted defendant un­
less his conduct had been “ ‘reprehensible in some respect,’ 
‘improper,’ outrageous to ‘morality and justice,’ or that his 
conduct was ‘not reprehensible enough for a criminal con­
viction but sufficiently reprehensible to deserve an equal 
distribution of costs’ or that though acquitted ‘his innocence 
may have been doubtful.’ ” 382 U. S. at page 404. The 
jury was instructed “ that it might place the costs of prose­
cution on the appellant though found not guilty of the 
crime charged, if the jury found that ‘he has been guilty 
of some misconduct less than the offense which is charged 
but nevertheless misconduct of some kind as a result of 
which he should be required to pay some penalty short of



13a

conviction (and) . . . his misconduct has given rise to the 
prosecution.’ ”  Ibid.

The trial court ultimately held the statute unconstitu­
tional, but the State appellate courts disagreed. There was 
an appeal to the Supreme Court of the United States, and 
that Court held the statute unconstitutionally vague not­
withstanding the construction which had been placed upon 
it by the courts of Pennsylvania. In concurring opinions 
Justices Stewart and Fortas thought it sufficient to say 
simply that it is unconstitutional to tax the costs of the 
prosecution against an acquitted defendant.

Evidently, the majority of the Court were not unmindful 
that it might be contended that the holding would be used 
to attack the practice prevailing in many States, including 
Arkansas, of permitting juries finding defendants guilty 
to fix the punishments within legal limits. And the Court 
expressly noted that it intended “ to east no doubt whatever 
on the constitutionality of (that) practice.” 382 U. S. at 
page 405, f.n. 8.

It is true that in his concurring opinion Mr. Justice 
Stewart said (p. 405 of 382 U. S . ) :

“ . . .  It seems to me that, despite the Court’s dis­
claimer, much of the reasoning in its opinion serves 
to cast grave constitutional doubt upon the settled 
practice of many States to leave to the unguided dis­
cretion of a jury the nature and degree of punishment 
to be imposed upon a person convicted of a criminal 
offense. Though I have serious questions about the 
wisdom of that practice, its constitutionality is quite 
a different matter. . . . ”

Whether the interpretation which Justice Stewart places 
upon the reasoning of the majority turns out to be accurate



14a

remains to be seen; for the present at least this Court will 
accept the majority’s disclaimer at face value. And, the 
Court thinks that the Arkansas practice, which has been 
described, falls within the terms of the disclaimer.

The contention which has been urged most seriously here, 
and which has been ably argued by Professor Amsterdam 
of the University of Pennsylvania Law School, who is of 
counsel in the case, is that Arkansas juries customarily 
apply Ark. Stats. Ann., §§41-3403 and 43-2153 in a racially 
discriminatory and unconstitutional manner to Negro men 
who have been convicted of raping white women so that 
a disproportionate number of such defendants receive the 
death penalty. And it is argued that it makes no difference 
that the sentence results from negative jury action in fail­
ing to assess punishment at life imprisonment rather than 
from affirmative jury action in voting the sentence of death.

The same contention was made in the State courts and, 
as indicated, was urged before Judge Young and before 
the Court of Appeals. In those proceedings petitioner 
sought to establish his thesis by the use of execution records 
of the State of Arkansas and by records of sentences im­
posed in rape cases over a period of time in Garland, 
Pulaski, and Jefferson Counties. The statistics which peti­
tioner was able to produce in the earlier proceedings were 
not convincing to the Courts concerned.

In the instant ease petitioner relies upon the results of 
a study made in 1965 by Professor Marvin Wolfgang, a 
well qualified sociologist and criminologist on the faculty 
of the University of Pennsylvania. Dr. Wolfgang, whose 
qualifications to testify as an expert are not questioned 
and are established, testified at the hearing, and a written 
report prepared by him, together with certain other rele­



vant documentary material, was received in evidence with­
out objection.

The background facts of the Wolfgang study may be 
summarized as follows:

In early 1965 Dr. Wolfgang was engaged by the NAACP 
Legal Defense and Educational Fund, Inc. to make a study 
of rape convictions in a number of southern States, includ­
ing Arkansas to prove or disprove the thesis that in those 
States the death penalty for rape is disproportionately 
imposed upon Negro men convicted of raping white women.

Dr. Wolfgang was apprised of the fact that the results 
of his study might well be used in litigation such as the 
instant case.

As far as Arkansas is concerned, Dr. Wolfgang caused 
Mr. John Monroe, a qualified statistician, to select a repre­
sentative sample of Arkansas counties with reference to 
which the study would be made. The sample drawn by Mr. 
Monroe, who testified at the hearing, consisted of 19 coun­
ties in the State.

During the summer of 1965 law students interested in 
civil rights problems were sent into Arkansas to gather 
basic data with respect to all rape convictions in the sample 
counties for a period beginning January 1, 1945, and ex­
tending to the time of the investigation. Data obtained as 
to individual cases were recorded on individual case 
schedules. When the work was completed, the individual 
schedules were turned over to Dr. Wolfgang for evaluation.

The investigation brought to light 55 rape convictions 
during the study period involving 34 Negro men and 21 
white men. The offenses fell into three categories, namely: 
rapes of white women by Negro men; rapes of Negro women 
by Negro men; and rapes of white women by white men.



16a

No convictions of white men for raping Negro women were 
found.

Dr. Wolfgang found that of the 34 Negroes convicted of 
rape 10 had been sentenced to death and 24 had been sen­
tenced to life imprisonment; the corresponding figures for 
the white offenders were 4 and 17. The witness did not 
consider that particular variation to be of great significance. 
But he did attach great significance to the fact that of the 
19 Negroes convicted of raping white women 9, or nearly 
50 percent, had been sentenced to death, whereas in other 
racial situations only 5 death sentences had been imposed, 
those 5 sentences representing only about 14 percent of 
the total sentences imposed in those situations.7 
* Using recognized statistical procedures Dr. Wolfgang 

undertook to determine whether the differential in the im­
position of the death sentence was due to some factor other 
than the association between Negro offender and white 
victim. He concluded, and the Court agrees, that the differ­
ential could not be due to the operation of the laws of 
chance.

The witness then proceeded to consider race in relation 
to certain variables appearing in rape cases,8 and also to

7 The figures just given relate to convictions and sentences im­
posed. Actually those figures involve some duplications of indi­
viduals. The overall record reflects that two Negroes were convicted 
twice of raping white victims and received the death sentence 
each time. One Negro was convicted twice of raping two Negro 
women and received a life sentence in each ease. And two white 
men were each convicted twice of raping two white women; in 
each instance the original sentence imposed was life imprisonment, 
and the second sentence was death.

8 Generally speaking, and subject to certain exceptions, the 
variables appear to the Court to be facts or circumstances which 
reasonably might be supposed to either aggravate or mitigate a 
given rape. Variables included, but were not limited to, such



consider sentences imposed in relation to such variables. 
He found that race had significant associations with certain 
variables but not with others, but he also found that in 
general the sentences imposed had nothing significant to 
do with the variables, other than the combination of Negro 
offenders and white victims.

Without stopping to go into further detail, the Court 
will state that it understands Dr. Wolfgang’s conclusion 
to be that a Negro man who is convicted of raping a white 
woman has about a 50 percent chance of receiving a death 
sentence, regardless of the facts and circumstances sur­
rounding the crime, whereas a man who is convicted of 
criminally assaulting a woman of his own race stands only 
about a 14 percent chance of receiving the death sentence.

Petitioner has made no effort here to show that the in­
dividual jury which tried and convicted him acted in his 
particular case with racial discrimination. Rather, peti­
tioner urges that a showing of a pattern of racial dis­
crimination in the imposition of the death penalty makes 
a prima facie showing of such discrimination in a particular 
case; that a failure of an Arkansas jury to assess punish­
ment at life imprisonment in a capital case is tantamount 
to an assessment of the death penalty; and that it is un­
constitutional for a jury to permit a death sentence to be 
imposed on a Negro man convicted of raping a white woman 
if it would have assessed a penalty of life imprisonment had 
the defendant been white and had he raped the same woman 
in the same or similar circumstances.

In appraising petitioner’s contention and in weighing the 
testimony and report of Dr. Wolfgang the Court lays to

factors as age of defendant, age of victim, degree of force, degree 
of injury, weapon use or display, and marital and family status 
of offender and victim.



18a

one side the fact that in Sims v. Georgia, supra, the Su­
preme Court has agreed to review, among other things, 
the question of whether a Georgia trial court committed 
error in refusing to hear testimony to the effect that during 
a certain period in Georgia 19 times more Negroes than 
whites have received the death sentence in rape cases. In 
this case the Court has heard and considered all of the evi­
dence which petitioner has offered.

While the statistical evidence produced in this case is 
more extensive and sophisticated than has been produced 
heretofore the Court is not convinced that it is sufficiently 
broad, accurate, or precise as to establish satisfactorily 
that Arkansas juries in general practice unconstitutional 
racial discrimination in rape cases involving Negro men 
and white women or to require or justify the inference 
that the Garland County jury which tried petitioner was 
motivated by racial discrimination when it failed to assess 
a punishment of life imprisonment.9

9 Garland County was not included in the sample group of 
counties considered by Dr. Wolfgang. Garland County statistics 
were before Judge Young in the original habeas corpus proceed­
ings and were summarized in the opinion of the Court of Appeals. 
Maxwell v. Stephens, supra, 348 F. 2d at 330. Those figures re­
vealed that in the ten year period beginning January 1, 1954, 
seven white men and three Negroes were charged with rape in 
that county. Two of the victims of the white men were white; 
the races of the other victims of those men were not disclosed. 
The victims of the Negro offenders were two Negro and one 
white woman. Charges against four of the white men were not 
pressed; the other three were convicted of lesser crimes. The 
charges against one of the Negroes were dismissed, and a second 
was convicted of a lesser offense. The third, petitioner here, was 
convicted of raping a white woman and received the death sen­
tence. There is no question that the facts and circumstances 
surrounding his offense were such as to justify the imposition of 
that sentence entirely apart from any consideration of race.



19a

The study does not indicate that Negro men convicted 
of raping white women invariably or even in a majority 
of cases receive the death penalty. The study covered only 
55 cases over a twenty year period in 19 Arkansas counties 
containing, according to the census of 1960, 47 percent of 
the State’s population, and after making allowances for 
duplications it appears that only 7 Negro men were sen­
tenced to die for raping white women. The eases studied, 
and the number of death sentences imposed are simply too 
few in number to afford convincing proof of the proposition 
urged by petitioner.

As to the sample which was considered, Dr. Wolfgang 
said in his report that the included counties “ are a strati­
fied random sample of Arkansas counties, geographically 
dispersed throughout the State and representative of the 
State in urban-rural and white-Negro population ratios.” 
Although the sample drawn by Mr. Monroe seems to have 
been drawn in a manner which is acceptable statistically, 
the quoted statement of Dr. Wolfgang is simply not cor­
rect, and this was recognized by Mr. Monroe and is made 
clear by an examination of a map of the State attached 
to the report.

The Negro population of Arkansas is not distributed 
evenly over the State, nor is the State’s overall population 
distributed evenly from the urban-rural standpoint. An 
examination of the map which has been mentioned shows 
that the counties included in the sample are for the most 
part located in the southern and eastern portions of the 
State where the Negro population is heaviest and include 
most of the large urban centers in the State such as the 
Little Eock-North Little Eock metropolitan area, and the 
cities of Blytheville, El Dorado, Fort Smith, and Pine Bluff.



20a

The variables which Dr. Wolfgang considered are objec­
tive ; they are broad and in instances are imprecise. In 
connection with many of the cases studied the field workers 
were unable to obtain from available sources information 
which might have been quite pertinent, and Dr. Wolfgang’s 
statistics really reveal very little about the details of the 
cases of the 7 individual Negroes who received the death 
sentence for raping white women as compared to the details 
of the cases in which other racial situations were involved.

Dr. Wolfgang himself recognizes in his report and in his 
testimony that his conclusions are subject to attack from 
certain angles due in large measure to the small number 
of cases studied and lack of available information in many 
of those cases. In his report he states frankly:

“ This report contains a preliminary analysis of 
data obtained in a study designed to determine the 
effect of racial factors upon capital sentencing for 
rape in the State of Arkansas. The preliminary anal­
ysis is neither exhaustive nor conclusive. Its findings, 
presented below, are tentative and are based upon an 
exploratory investigation of the available data. In­
terpreting the results must be done with caution. Sub­
ject to this qualification, the preliminary analysis 
strongly suggests that racial discrimination is opera­
tive in the imposition of the death penalty for rape in 
Arkansas.”

On the meager material before it the Court is simply not 
prepared to convict Arkansas juries of unconstitutional 
racial discrimination in rape cases. As a matter of fact, 
the Court doubts that such discrimination, which is a highly 
subjective matter, can be detected accurately by a statis­



21a

tical analysis such as was undertaken here. Statistics are 
elusive things at best, and it is a truism that almost any­
thing can be proved by them.

The Court does not intend to belittle either the study 
made by Dr. Wolfgang or his testimony. But the Court 
is simply not convinced by them any more than the Su­
preme Court of Arkansas, Judge Young, and the Court 
of Appeals were convinced by the materials previously 
submitted.

In his opinion Judge Young aptly stated that the issue 
of consent is always involved in rape cases. In cases not 
involving inter-racial situations the issue of consent may 
be and frequently is very real; that issue from a factual 
standpoint is much less likely to be present in cases in 
which white women have been attacked by Negro men. And 
the disproportion between death sentences imposed on 
Negro men convicted in inter-racial cases and such sen­
tences imposed in other cases may well be referable in 
large measure to the fact that in the former cases the trial 
jurors may have a firmer and more abiding conviction of 
the truth of the charges than in cases of the latter type.

The final contention to be discussed does not involve any 
Arkansas statute but does involve Arkansas criminal pro­
cedure generally. Under that procedure the State puts on 
its evidence first, and in many types of cases, including 
rape cases, evidence which is relevant to guilt is also 
relevant to punishment. When the State has completed 
its presentation, the defense may or may not introduce 
evidence, and the defendant may or may not testify in his 
own behalf. If he does testify, he waives his privilege 
against self-incrimination with respect to the charge against 
him, and may be cross examined as fully as any other 
witness. The deliberations of the jury relate to both the



question of guilt and the question of punishment; there is 
no post-conviction hearing before the jury as to the punish­
ment which the defendant should receive.

Petitioner, who did not take the stand in the course of 
the trial in the Circuit Court, attacks as unconstitutional 
the procedure which has been outlined. He alleges that the 
procedure is unconstitutional because “ evidence pertinent 
to the question of penalty could not be presented without 
prejudicing the jury against the petitioner on the issue of 
guilt,” and because he could not exercise his constitutional 
“ right of allocution” before the jury which sentenced him, 
without thereby waiving his privilege against self-incrim­
ination.

In effect, petitioner contends that where a State leaves 
the matter of punishment to a jury’s determination the 
Constitution requires that the issue of guilt or innocence 
must be tried out first, and that if the defendant is found 
guilty, a separate hearing must be held before the jury on 
the question of punishment in the course of which hearing 
the defendant can testify as to mitigating circumstances 
without prejudice to himself since his guilt has been de­
termined already.

While some States follow that procedure, this Court does 
not believe that the Constitution requires it. The Court 
does not consider that .Jackson v. Denno, 378 U. S. 368 and 
Malloy v. Hogan, 378 U. S. 1, are in point here.

An order denying the petition will be entered forthwith. 
This Court will not stay petitioner’s execution beyond Sep­
tember 2 and will decline to grant a certificate of probable 
cause to appeal if such a certificate is requested. Petitioner 
has ample time to apply to the Court of Appeals for relief.

Dated this 26 day of August, 1966.

J. Smith H enley 
United States District Judge



23a

I n  THE
UNITED STATES DISTRICT COURT 

E astern D istrict of A rkansas 

P ine Bluff D ivision 

PB-66-C-52

Order Denying Habeas Corpus

W illiam L. Maxwell,
Petitioner,

0. E. B ishop, Superintendent of the Arkansas 
State Penitentiary,

Respondent.

Pursuant to memorandum opinion filed this date the 
petition for a writ of habeas corpus filed herein is denied.

Dated this 26 day of August, 1966.

J. S m it h  H enley

U nited  S ta tes  D is tr ic t J udge



24a

I n  the
UNITED STATES DISTRICT COURT 

E astern D istrict of A rkansas 

P ine Bluff D ivision 

PB-66-C-52

Order Denying Certificate of Probable Cause

W illiam L. Maxwell,

-v.—
Petitioner,

0. E. B ishop, Superintendent of the Arkansas 
State Penitentiary,

Respondent.

The application of petitioner for a certificate of probable 
cause for appeal from an order of this Court denying his 
petition for a writ of habeas corpus is denied.

Dated this 29 day of August, 1966.

J . S m it h  H enley

U nited  S ta tes  D is tr ic t J udge



25a

I n  the

UNITED STATES DISTRICT COURT 

E astern D istrict of A rkansas 

P ine B luff D ivision 

PB-66-C-52

Order Denying Stay of Execution

W illiam L. Maxwell,

—v.-
Petitioner,

0. E. B ishop, Superintendent of the Arkansas 
State Penitentiary,

Respondent.

Petitioner’s request for a Stay of Execution is hereby 
denied.

Dated this 29 day of August, 1966.

J. S m it h  H enley

U nited  S ta tes  D istr ic t Judge



26a

Order of Judge Matthes

Misc. No. 418

W illiam L. Maxwell,
Petitioner,

0. E. B ishop, Superintendent of Arkansas 
State Penitentiary,

Respondent.

William L. Maxwell, scheduled to die on September 2, 
1966 pursuant to sentence imposed by the Circuit Court 
of Garland County, Arkansas, affirmed by the Arkansas 
Supreme Court in Maxwell v. State, 236 Ark. 694, 370 
S. W. 2d 113 (1963), has presented an application for a 
certificate of probable cause for appeal from the order of 
the United States District Court for the Eastern District 
of Arkansas (August 20, 1966) denying his petition for 
writ of habeas corpus. He has also presented a motion to 
stay execution of the sentence.

We affirmed the order denying Maxwell’s first petition 
for writ of habeas corpus. Maxwell v. Stephens, 348 F. 2d 
325, cert, denied, 382 U. S. 944.

The application and motion were presented to the under­
signed on August 30, 1966. Counsel for petitioner, without 
waiving any of the grounds relied upon, stressed in oral 
argument the proposition that Arkansas juries customarily 
apply Sections 41-3403 and 42-2153 Ark. Stats. Ann., in a 
racially discriminatory and unconstitutional manner to 
Negro men who have been convicted of raping white women,



27a

so that a disproportionate number of such defendants re­
ceive the death penalty. This identical question was pre­
sented in the prior appeal. Maxwell v. Stephens, supra.

After careful consideration of all pertinent papers, the 
argument of counsel for petitioner and the memorandum 
opinion of the United States District Court, it is ordered 
that the application for certificate of probable cause and 
the motion to stay execution of sentence should be and 
hereby are denied.

M. C. Matthes 
United States Circuit Judge

August 30, 1966 

A  true copy 

Attest:

R obert C. Ttjcker 
Clerk, U. S. Court of Appeals 

for the Eighth Circuit



28a

Constitutional and Statutory Provisions Involved

A rkansas Statutes A nnotated, §3-118 (1956) :

3-118. List of poll tax payers furnished county clerk 
and election commissioners.—Not later than the 15th day 
of October of each year the collector shall file with the 
comity clerk a list containing the correct names, alpha­
betically arranged (according to the political or voting 
townships, and according to color) of all persons who have 
up to and including October 1st of that year paid the poll 
tax assessed against them respectively. The correctness of 
this list shall be authenticated by the affidavit of the col­
lector in person. The county clerk shall at once record the 
said list in a well bound book to be kept for that pur­
pose. . . .

A rkansas Statutes A nnotated, §3-227 (1956):

3-227. Evidence of right to vote—Filing and return of 
documents—Additional list of voters—Poll tax receipts, 
requirements—Certified poll tax lists—Rejection of bal­
lots.—No person shall be allowed to vote at any primary 
election held under the laws of this State, who shall not 
exhibit a poll tax receipt, or other evidence that he has 
paid his poll tax within the time prescribed by law to en­
title him to vote at the succeeding general State election. 
Such other evidence shall be:

(a) A  copy of such receipt duly certified by the clerk of 
the county court of the county where such tax was paid.

(b) Or, such person’s name shall appear upon the list 
required to be certified to the judges of election by section 
three of Act 320 of Acts of 1909 [§3-118].



29a

Or, if any person offering to vote shall have attained the 
age of twenty-one [21] years since the time of assessing 
taxes next preceding snch election, which period of assess­
ment is here declared to mean between the second Monday 
in May and the second Monday in September of each year, 
and possesses the other necessary qualifications, and shall 
submit evidence by written affidavit, satisfactory to the 
judges of election, establishing that fact, he shall be per­
mitted to vote.

All such original and certified copies of poll tax receipts 
and written affidavits shall be filed with the judges of elec­
tion and returned by them with their other returns of 
election, and the said judges of election shall, in addition 
to their regular list of voters, make an additional list upon 
their poll books of all such persons permitted by them to 
vote, whose names do not appear on the certified list of, poll 
tax payers, and such poll books shall have a separate page 
for the purpose of recording names of such persons.

It shall be the duty of each elector, at the time of pay­
ment of his poll tax, to state, and it shall be the duty of the 
collector to record and certify in his receipt evidencing the 
payment of such poll tax, the color, residence, postoffice 
address (rural route, town or street address), voting pre­
cinct, and school district, of such person at the time of the 
payment of such tax, and all poll tax receipts not containing 
such requirements shall be void and shall not be recognized 
by the judges of election; provided, however, it shall not be 
necessary to state or have certified the street address of 
any such person in cities and towns where the numbering 
of houses is not required by the ordinances thereof.

The certified lists required by section 3 of Act 320 of 
1909 .[§3-118] shall contain, in addition to the name of the 
person paying such poll tax, his color, residence, post­



30a

office address (rural route, town, or street address where by 
ordinance the numbering of houses is required), the school 
district and voting precinct, and such list shall be arranged 
in alphabetical order, according to the respective voting 
precincts. The county election commissioners shall supply 
the judges of primary elections with printed copies of such 
lists.. . .

A rkansas Statutes A nnotated §39-208 (1962):

Preparation of lists of petit jurors and alternates—In­
dorsement of lists.—The commissioners shall also select 
from the electors of said county, or from the area constitut­
ing a division thereof where a county has two [2] or more 
districts for the conduct of circuit courts, not less than 
twenty-four (24) nor more than thirty-six (36) qualified 
electors, as the court may direct, having the qualifications 
prescribed in Section 39-206 Arkansas Statutes 1947 Anno­
tated to serve as petit jurors at the next term of court; 
and when ordered by the court, shall select such other num­
ber as the court may direct, not to exceed twelve [12] 
electors, having the same qualifications, for alternate petit 
jurors, and make separate lists of same, specifying in the 
first list the names of petit jurors so selected, and certify 
the same as the list of petit jurors; and specifying in the 
other list the names of the alternate petit jurors so se­
lected, and certifying the same as such; and the two [2] 
lists so drawn and certified, shall be enclosed, sealed and 
indorsed “ lists of petit jurors” and delivered to the court 
as specified in Section 39-207, Arkansas Statutes 1947, 
Annotated for the list of grand jurors.



31a

A rkansas Statutes A nnotated §41-3403 (1962) :

41-3403. Penalty for Rape.-—Any person convicted of the 
crime of rape shall suffer the punishment of death [or life 
imprisonment]. [Act Dec. 14, 1842, §1, p. 19; C. & M. Dig., 
§2719; Pope’s Dig., §3405.]

A rkansas Statutes A nnotated §43-2153 (1962):

43-2153. Capital cases—Verdict of life imprisonment.— 
The jury shall have the right in all cases where the punish­
ment is now death by law, to render a verdict of life im­
prisonment in the State penitentiary at hard labor.



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