Maxwell v. Bishop Brief Amicus Curiae

    In the

Utiprati? (Emir! ni tlw Intfrfc 6>UXvb
October Term, 1968 

No. 622

----------------- — — -------- --------------------------

W illiam L. Maxwell,
Petitioner,

—-v.—

0. E. Bishop, Superintendent of Arkansas State Penitentiary,
Respondent.

ON PETITION FOR WRIT OP CERTIORARI TO THE UNITED STATES 
COURT OP APPEALS FOR THE EIGHTH CIRCUIT

BRIEF AMICUS CUMAE ON BEHALF OF ROBERT PAGE ANDERSON, 
FREDERICK SATERFIELD, WALTER C. HINES, DORMAN FRED 

TALBOT, GERALD ALBERT BEIVELMAN

Jerome B. Falk, Jr.
650 California Street
San Francisco, California 94108

Emil Boy Eisenhardt 
833 Pine Street 
San Francisco, California

Harry J. Kreamer
100 Bush Street, 26th Floor 
San Francisco, California

Gary D. Berger
One Kearny Street 
San Francisco, California

Paul N. Halvonik 
503 Market Street 
San Francisco, California

Charles S. Ralston
1095 Market Street, Suite 418 
San Francisco, California

Demetrios P. A gretelis 
2020 Milvia Street 
Berkeley, California 94704

Patrick J. Sampson 
2050 Bonita Avenue 
LaVerne, California 91750

W. Reece Bader
405 Montgomery Street 
San Francisco, California

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

Jack Greenberg
Michael Meltsner
Melvyn Zarr
Jack Himmelstein

10 Columbus Circle, Suite 2030 
New York, New York 10019

Garfield Stewart 
Of Counsel

Attorneys for Amicus Curiae



I n  the

Hatpnw (ta rt at %  Im tih  States
October T erm , 1968 

No. 622

W i l l i a m  L. M a x w e l l , 

— v .—

Petitioner,

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

Respondent.

ON PETITION FOE WRIT OF CERTIORARI TO THE UNITED STATES 

COURT OF APPEALS FOR THE EIGHTH CIRCUIT

BRIEF AMICUS CURIAE ON BEHALF OF ROBERT PAGE 
ANDERSON, FREDERICK SATERFIELD, WALTER C. HINES, 
DORMAN FRED TALBOT, GERALD ALBERT BEIVELMAN

Motion for Leave to File Brief 
Amicus Curiae Out o f  Time

Movants seek by this motion to file a brief amicus curiae 
whose sole purpose is to advise the Court of the decision, 
and implications of the decision, in Sims v. Eyman, 405 F. 
2d 439 (9th Cir. 1969). Although the Sims case was decided 
on January 6, 1969, it first came to the attention of counsel 
for movants during the week of April 7, 1969, after being 
reported in the West System. For this reason, movants



2

request leave to file this brief out of time. Consent to 
the filing of the brief, and to its filing out of time, has been 
given by counsel for the petitioner and for the respondent. 
Their letters of consent are being lodged with the clerk at 
the time of filing of this brief.

BRIEF AMICUS CURIAE

Interest of the Amici

Amici are five men sentenced to death by California 
juries. Their federal constitutional contentions challeng­
ing these death sentences have been rejected by the Su­
preme Court of California in In Be Anderson, 69 Adv. Cal. 
638, 861, 73 Cal. Kptr. 21, 447 P. 2d 117 (1968), and sub­
sequent orders; and they have pending in this Court a peti­
tion for certiorari seeking review of that decision. Ander­
son et al. v. California, No. 1643 Misc.*

A  major issue raised by amici in the California Supreme 
Court and here is identical to the issue presented in the 
present case, concerning the constitutionality of capital 
sentencing that is lawless and arbitrary for want of rules 
or standards to guide the life-or-death choice. Their lives 
therefore quite literally depend upon the Court’s disposi­

* Petitioners Talbot, Hines and Beivelman are now under sen­
tence of death. Their executions have been stayed pending dispo­
sition of the Anderson petition for certiorari. Petitioners Anderson 
and Saterfield have had their initial sentences of death vacated 
by the California Supreme Court pursuant to Witherspoon v. 
Illinois, 391 U. S. 510 (1968); they are now required to undergo 
new death sentencing trials ordered by the California court under 
the procedure which they challenge in Anderson.



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tion of this present case; and the purpose of amici’s brief 
is to inform the Court that—by virtue of a recent Ninth 
Circuit decision—the Court’s manner of handling Maxwell 
will almost surely determine whether the amici live or die.

Argument

In his brief and oral argument in the Maxwell ease, the 
Attorney General of California has urged the Court not to 
decide the question plainly and squarely presented herein, 
whether arbitrary and lawless capital sentencing violates 
the Due Process Clause of the Fourteenth Amendment. 
That question was presented to the Supreme Court of Cali­
fornia by your amici and decided against them, in favor of 
the Attorney General, by a 4-3 vote, in In re Anderson, 
supra. Amici have filed a petition for certiorari in this 
Court, seeking review of the Anderson holding.

It has just come to the attention of amici that the United 
States Court of Appeals for the Ninth Circuit squarely 
decided the identical question in Sims v. Eyman, 405 F. 2d 
439 (9th Cir. 1969), a case affirming the denial of federal 
habeas corpus relief to a death-sentenced Arizona prisoner. 
Although adverting to the pendency of Maxwell, the Court 
of Appeals dismissed the issue in one paragraph, without 
perceptible reasoning. In Sims, also, a petition for cer­
tiorari has heretofore been filed.

We file the present brief (and are filing similar docu­
ments in Anderson and Sims) to make this Court aware of 
the Sims decision and of its effect, coming as it does in the 
wake of the California Supreme Court’s Anderson holding. 
There are now eighty-two men and one woman on death



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row in the State of California. Since the disposition of the 
Anderson case by the California Supreme Court, executions 
have been set regularly in that State, which the state courts 
will not stay. Counsel for amici have managed to have all 
of these executions stayed either by the appropriate Cir­
cuit Justice of this Court, or by the United States federal 
district court, in light of the pendency of Maxwell.

I f  Maxwell is disposed of without reaching the “ stand­
ards” issue presented herein, and if certiorari is not granted 
on that issue in Anderson and Sims, California’s condemned 
inmates will be exposed to a grave risk of imminent execu­
tion. This is so because the lower state courts (governed 
by Anderson) and federal courts (governed by Sims) are 
now likely to deem the “ standards” issue foreclosed. Thus, 
some large number of persons may be put to death before 
any further decision of this Court can be had on the “ stand­
ards” question raised alike in their cases, Maxwell, Ander­
son, and Sims.*

Sims v. Eyman surely adds to the fitness of this Court’s 
reaching the “ standards” issue immediately. For if death- 
sentencing without standards is federally unconstitutional 
—or if this Court might, upon due consideration, conclude 
that it is federally unconstitutional—we submit it would 
be altogether inappropriate to defer such consideration as 
is necessary to render that constitutional judgment until 
after further constitutionally assailable executions have 
taken further humanly unrecapturable lives. Delay in the 
disposition of this issue—which is now squarely and prop-

# Since California has a split-verdict procedure for the trial of 
capital cases, the other issue presented in Maxwell is not raised 
in the California eases.



5

erly before the Court in Maxwell, and presented by dozens 
of other condemned men in pending petitions for certiorari 
—would serve only to authorize an infliction of death in the 
State of California unlike anything this country has wit­
nessed in more than a decade.

CONCLUSION

This Court should decide the question presented in the 
Maxwell case whether arbitrary and lawless capital sen­
tencing discretion violates the Constitution of the United 
States, and should dispose of the Anderson and Sims cases 
in light of its Maxwell decision or grant certiorari in the 
latter cases.

Respectfully submitted,

J erome B. F alk , Jr.
650 California Street
San Francisco, California 94108

E mil R oy E isenhardt 
tu r ■ ■ *«•* ■ Pin'# Street

San Francisco, California
H arry J. K reamer

100 Bush Street, 26th Floor 
San Francisco, California

Gary D. B erger
One Kearny Street 
San Francisco, California

P aul N. H alvonik 
503 Market Street 
San Francisco, California



6

Ch arm s  S. R alston
1095 Market Street, Suite 418 
San Francisco, California

Demetrios P. A gsetelis 
2020 Milvia Street 
Berkeley, California 94704.

P atrick J. Sampson 
2050 Bonita Avenue 
LaVerne, California 91750

W . R eece B ader
405 Montgomery Street 
San Francisco, California

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

J ack Greenberg
M ichael Meltsner
Melvyn Z arr
J ack H immelstein

10 Columbus Circle, Suite 2030 
New York, New York 10019

Attorneys for Amicus Curiae

Garfield Stewart 
Of Counsel



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