Maxwell v. Bishop Brief Amici Curiae Urging Reversal

    No. 13

IN THE SUPREME CO URT OF TH E U N ITED  S TA TES
O C TO BER  TERM , 1969

William L. Maxwell, petitioner, 
v.

O. E. Bishop, Superintendent of Arkansas State Penitentiary,
RESPONDENT

On Writ o f Certiorari to the United States Court o f Appeals 
for the Eighth Circuit

BRIEF AMICI CURIAE OF BERL 1. BERNHARD, WILLIAM COLEMAN, SAMUEL 
DASH, JOHN W. DOUGLAS, STEVEN DUKE, WILLIAM T. GOSSETT, JOHN GRIF­
FITHS, RITA HAUSER, GEORGE N. LINDSAY, BURKE MARSHALL, MONRAD S. 
PAULSEN, STEVEN R. RIVKIN, WHITNEY NORTH SEYMOUR, JEROME J. SHE- 
STACK, CYRUS R. VANCE, and JAMES VORENBERG, URGING REVERSAL

BERL I. BERNHARD 
1660 " L ” Street, N,W,
Washington, D.C. 20036 
W ILLIAM  T .  COLEM AN, JR.
2635 Fidelity Philadelphia Trust Building
Philadelphia, Pennsylvania 19109
S A M U E L DASH
Georgetown Law Center
Washington, D.C, 20007
JOHN W. DO UG LA S
888 - 16th Street, N.W,
Washington, D.C. 20006
S TEV EN  DUKE
Yale Law School
New Haven, Connecticut 06520
W ILLIAM  T .  GOSSETT
Penobscot Building
Detroit, Michigan 48226
JOHN G R IF F ITH S
Yale Law School
New Haven, Connecticut 06520
CYRUS R. VANCE
120 Broadway
New York, New York 10005

MRS. R ITA  HAUSER 
110 East 42nd Street 
New York, New York 10017 
GEO RG E N. LINDSAY 
320 Park Avenue 
New York, New York 10022 
BURKE M A R S H ALL 
Armonk, New York 10504 
M ONRAD S. PAULSEN 
University of Virginia Law School 
Charlottesville, Virginia 22904 
S TEV EN  R. RIVKIN 
918 - 16th Street, N.W. 
Washington, D.C. 20006 
W H ITN E Y  N O R TH  S EYM O UR 
120 Broadway
New York, New York 10005 
JEROM E J. SH ESTACK 
1719 Packard Building 
Philadelphia, Pennsylvania 19102 
JAMES VOR EN BERG  
Harvard University Law School 
Cambridge, Massachusetts 02140

D. C.  ■Washington, T H IE L  PRESS - 202 - 393-0625



(i)

TABLE OF CONTENTS

Page

C ita tion s..............................................................................................  (i)

Interest of Amici Curiae........................................................   1

Argument ..................................................    3

I. Without appropriate standards, the Arkansas single­
verdict procedure is susceptible to racially motivated 
decisions on the imposition of the death penalty, in 
violation of the constitution’s due process and equal 
protection guarantees.............................................................  3

II. The single-verdict procedure compounds the vices of 
standardless sentencing and imposes needless and im­
permissible burdens on the right to a fair trial on the 
issue of guilt or in n o cen ce ..................................................  14

Conclusion............................................................................................ 18

CITATIONS
Cases:

Estes v. Texas, 381 U.S. 532 (1965) .......................................... 10

Giacco v. Pennsylvania, 382 U.S. 399 (1966) .........................4, 13

Griffin v. California, 380 U.S. 609 (1 9 6 5 )____ 7, 12, 15, 17, 18

Higgins v. Peters, U.S. District Court, No. LR-68-e-176,
E.D. Ark. (September 25, 1 9 6 8 ) ............................................. 7

Jackson v. Denno, 378 U.S. 368 (1 9 6 4 ) .........................  6, 15, 18

Loving v. Virginia, 388 U.S. 1 (1957) ...................... .. .............  7

Lyons v. Oklahoma, 322 U.S. 596 (1 9 4 4 ) .................................. 6

In Re Murchison, 349 U.S. 133 (1955) ....................................  10

North Carolina v. Pearce, 395 U.S. 711
(1 9 6 9 ) ..................................................................  9 , 1 2 , 1 5 , 1 7 , 1 8

Offutt v. United States, 348 U.S. 11 ( 1 9 5 4 ) ......................... ..  10

Rogers v. Richmond, 365 U.S. 534 ( 1 9 6 1 ) ............................... 6



Searber v. State, 226 Ark. 503, 291 S.W. 2d 241 (1956). . . 14

Sheppard v. Maxwell, 384 U.S. 333 (1 9 6 6 ) ................. ..  . 10

Spencer v. Texas, 385 U.S. 554 (1 9 6 7 )....................................  11, 12

Turney v. Ohio, 273 U.S. 510 (1 9 2 7 ).......................................... 10

United States v. Jackson, 390 U.S. 570 ( 1 9 6 8 ) ......................  14

Whitus v. Balkcom, 333 F.2d 496 (5th Cir. 1 9 6 4 ) ................. 16

Witherspoon v. Illinois, 391 U.S. 510 (1 9 6 8 )..............................  8

Worcester v. Commissioner, 370 F.2d 713 (First Cir.
1 9 6 6 ) ...........................................................................................   16

Statutes:

Model Penal Code, American Law Institute, Section
210.6 ...............................................................................................  13

Other Authorities:

President’s Commission on Law Enforcement and Admini­
stration of Justice, Report “The Challenge of Crime in 
a Free Society” (1967) ....................................................... ..  . 9

Wright, Federal Practice and Procedure (Criminal) Sections
485, 487 (1 9 6 7 ) ................................................................................  6

(ii)



IN TH E SUPREME C O U R T  OF TH E  U N IT E D  S T A T E S
O C T O B E R  T E R M , 1969

No. 13

WILLIAM L. MAXWELL,
Petitioner,

v.

0 . E. BISHOP,
Superintendent of Arkansas State Penitentiary,

Respondent.

On Writ o f  Certiorari to the United States Court o f  Appeals 
for the Eighth Circuit

BRIEF AMICI CURIAE OF BERL I. BERNHARD, WILLIAM COLEMAN, 
SAMUEL DASH, JOHN W. DOUGLAS, STEVEN DUKE, WILLIAM T. GOS­
SETT, JOHN GRIFFITHS, RITA HAUSER, GEORGE N. LINDSAY, BURKE 
MARSHALL, MONRAD S. PAULSEN, STEVEN R. RIVKIN, WHITNEY 
NORTH SEYMOUR, JEROME J. SHESTACK, CYRUS R. VANCE, an d  JAMES 
VORENBERG, URGING REVERSAL.

INTEREST OF AMICI CURIAE1

The amici curiae join to tender Argument to the Court 
on an aspect of this case which reflects the most funda-

1 Pursuant to Rule 42, paragraph 2, there have been lodged with 
the Clerk the written consents of the parties to the filing of this 
Brief Amici Curiae.



2

mental dimensions of their individual professional respon­
sibilities as members of the Bar.

The first motivation prompting this brief is a profes­
sional concern to preserve and develop the standards of 
fairness in the administration of justice standing at the 
heart of our constitutional structure. Each of the signers 
of this brief is familiar with the problems of criminal law 
enforcement and with the practical requirement that the 
American system of criminal justice function with sub­
stantial fairness to all accused of crime.

In addition, each of the signers of this brief has pledged 
his professional skills to the fulfillment for all Americans 
of civil rights under law. Since the context in which this 
case rises to Constitutional proportions is shaped by the 
factor of race, the signers consider Argument with respect 
to the bearing of this factor essential to the full and 
proper development of the questions fairly comprised in 
this case.

Because considerations of procedural fairness and racial 
justice come together in the constitutional issues here on 
review, the undersigned hereby respectfully tender this 
brief amici curiae.



3

ARGUMENT

I.

WITHOUT APPROPRIATE STANDARDS, THE ARKANSAS 
SINGLE-VERDICT PROCEDURE IS SUSCEPTIBLE TO 
RACIALLY MOTIVATED DECISIONS ON THE IMPOSI­
TION OF THE DEATH PENALTY, IN VIOLATION OF THE 
CONSTITUTION’S DUE PROCESS AND EQUAL PRO­
TECTION GUARANTEES.

Standards to guide juries in selecting convicted persons 
for capital punishment are essential to comply with the 
Due Process requirement that discretion be limited and 
that the criminal process include structural guarantees 
against decisions based on passion and prejudice, as well 
as the Equal Protection requirement that the State not 
invite racially motivated decisions. Appropriate stand­
ards can be devised by any State which wishes to delegate 
to juries the power to impose the death sentence.

A.
The death penalty for a “capital” offense has become 

the exception, rather than the rule, and this accentuates 
the need for standards to determine the occasions on 
which it is to be inflicted if administration of the death 
penalty is to meet Due Process requirements. The 
current rarity of the death penalty also destroys the 
support of tradition for the Arkansas practice.

Only a small fraction of persons convicted of offenses 
for which death is a possible penalty actually receive the 
death sentence, in Arkansas or anywhere else (see Peti­
tioner’s Appendix B, at 24a-34a). It is now unthinkable 
that any significant proportion of “capital” offenders 
could be put to death. Thus the definitions of so-called



4

“capital offenses” no longer reveal anything about the 
criteria by which the death sentence may be imposed. 
In capital cases, the absence of any relationship between 
the elements of the offense and the punishment imposed 
makes compelling the need for explicit standards to 
guide the jury. The sentencing jury in a capital case is 
empowered to select for a special and awesome penalty 
a very few victims from among the total pool of con­
victed persons. It should hardly require argument that 
the power to make such a selection cannot be delegated 
without any standards at all-in a constitutional system 
which will not allow delegation of the power to impose 
court costs on an acquitted defendant as on a mere find­
ing that he was guilty of “some misconduct” which “has 
given rise to the prosecution.” Giacco v. Pennsylvania, 
382 U.S. 399 (1966). Due process of law is denied in 
the most fundamental way when a decision to forfeit 
life is made on the basis of no legal rule at all.

Earlier in our history, when the death sentence was a 
normal adjunct to a conviction, the definition of a 
capital crime generally provided some guidance for the 
occasions on which capital punishment would be 
inflicted, and made plausible the proposition that a jury 
might lawfully be left with unguided discretion to dis­
pense mercy. There is unquestionably a great difference 
between discretion to reprieve and discretion to take a 
life. Ultimately, whether a situation involves the one or 
the other is a question of fact. The fact is that capital 
sentencing in 1969 consists of the selection of victims, 
not the selection of persons to be spared.

When a death sentence is no longer a serious possibility 
for the vast majority who commit the proscribed



5

offense, it becomes a fiction to pretend that the commis­
sion of the offense itself is the cause of the sentence. 
The offense has become an excuse to execute a man for 
other unrelated or virtually unrelated reasons. Perhaps 
such a system is permissible—but only i f  these collateral 
reasons are clearly prescribed. Arkansas’ juror, delegated 
the power to make society’s most awesome choice, is 
given no criteria upon which to make it. He is left to his 
prejudices and his subconscious for the keys to decision. 
Often, as Petitioner’s statistics at least strongly suggest, 
the juror is moved by his fear of difference and decides 
to impose the death penalty upon the defendant because 
of his race.

The disappearance of the death penalty as a normal 
consequence of conviction for even the most heinous 
offenses has not only enlarged the operational content 
of jury “discretion”, and created the necessity for 
standards, it has eliminated tradition as a ground for 
perpetuating the Arkansas practice. The issue now 
before the Court is vastly different from what it might 
have been even a few decades ago, though it remains 
clothed in the same conceptual garments.

B.
The Arkansas procedure is tantamount to an instruc­

tion that race may be taken into account and is thus a 
deprivation of Equal Protection of the Laws.

If an Arkansas court, or any other court, were to 
charge a sentencing jury that it could consider race in 
deciding defendant’s fate, a sentence imposed by such a 
jury would be void with no proof whatever that the jury



6

had actually been racially motivated in fixing the sen­
tence (see Petition for Certiorari, pp. 45-47). The same 
Constitutional rule is a fortiori where the sentence is 
death. Our system of jury trials rests on the assumption 
that juries are guided and influenced by what they are 
and are not told by the presiding judge. Countless con­
victions are reversed every year in every jurisdiction for 
error in the charge. It is not uncommon for a conviction 
to be overturned for the sole reason that an instruction, 
though not erroneous, was unclear or confusing. See 
Wright, Federal Practice and Procedure (Criminal) Sec­
tions 485, 487 (1969). Numerous convictions have been 
upset for no other reason than the failure of the court to 
instruct fully on some basic point—e.g., reasonable 
doubt, the presumption of innocence, or the elements of 
the offense, Wright supra at Sections 487, 500. In such 
cases, it is no answer that the jury probably understood 
anyway, that the omissions were supplied in summation, 
that guilt was clear, or that the point was not really in 
issue. The possibility of misunderstanding is enough to 
vitiate the proceedings. This Court has applied the same 
rule when the error in the instructions is of constitutional 
dimension. Compare, Rogers v. Richmond, 365 U.S. 
5341, 546 (n. 4) (1961) with Lyons v. Oklahoma, 322 
U.S. 596, 600-601 (1944); and see Jackson v. Denno, 
378 U.S. 368, 368-387 (1964).

A brief examination of the context in which peti­
tioner’s jury was charged compels the conclusion that 
some, if not all, of his jurors probably understood the 
charge as authorizing them to take race into account in 
deciding his fate. At the time of petitioner’s 1962 trial, 
Arkansas law required the selection of jurors from 
electors, defined as those who had paid their county



7

poll tax, and the names of such persons were required to 
be kept in a poll tax book where they were designated 
by race. The jury list itself indicated race (Petition for 
Certiorari, p. 75). As recently as 1968, the Arkansas 
miscegenation statute was being enforced, although 
declared unconstitutional in Loving v. Virginia, 388 U.S. 
1 (1967). See ILiggins v. Peters, U.S. District Court No. 
LR-68-e-176, E.D. Ark., September 25, 1968 (declaring 
the Arkansas statute invalid at the behest of a Negro man 
and a white woman who were denied a marriage license). 
During the thirty-two years immediately preceding peti­
tioner’s trial, Arkansas executed only 1 white man for 
rape while executing 17 Negroes (Petition for Certiorari, 
p. 37, n. 21). Surely, no more extensive reconstruction 
of the Arkansas social fabric of 1962 is needed to show 
that the milieu from which petitioner’s jury was selected, 
and in which it decided that he should die, was, at the 
very least, tolerant of the view that rape by a Negro was 
a more heinous offense than the same crime by a white 
or that the life of a Negro defendant is less precious than 
that of a white. Not having been told otherwise by the 
court, it is altogether likely that the jury interpreted the 
submission of the death penalty issue, without express 
instruction, as authorization to take race into account. 
This likelihood is certainly at least as great as the possi­
bility of jury misunderstanding underlying the decisions 
cited above, or the assumption that a jury which hears a 
prosecutor’s comment on the defendant’s failure to take 
the stand will feel authorized to take it into account. 
Cf Griffin v. California, 380 U.S. 609 (1965). Indeed, 
if, as we contend, an Arkansas jury would infer that race 
is a permissible consideration in assessing penalty from 
the submission as given, its understanding would have



8

been correct, for, in placing the issue of life or death in 
the unrestricted discretion of the jury, the State of 
Arkansas does authorize the jury to consider race, or any 
other irrelevant or impermissible factor.

Since, as we have pointed out, possible misunder­
standings of basic issues, attributable either to what the 
jury was told or to what it was not told, suffice to 
vitiate a garden variety of conviction, how can a wholly 
different standard be applied when a life is to be taken? 
The only conceivable distinction was rejected by this 
Court when it noted that while deciding between life or 
death is

“different in kind from a finding that the defendant 
committed a specified offense . . . this does not 
mean that basic requirements of procedural fairness 
can be ignored simply because the determination 
involved in this case differs in some respects from 
the traditional assessment of whether the defendant 
engaged in the proscribed conduct.” Witherspoon v. 
Illinois, 391 U.S. 510, 521, n. 20 (1968).

In simply submitting the issue of life or death, without 
comment, the trial court, in the context and under the 
circumstances, conveyed a gross misconception which 
deprived petitioner of Equal Protection of the laws and 
necessarily voided his death sentence.

C.
Even if it be assumed, against all the evidence, that the 

death penalty was not discriminatorily inflicted upon 
petitioner, Due Process compels the introduction of 
protections against the apparent risk of such dis­
crimination.



9

Petitioner abundantly proved in the District Court 
that “Negro defendants who rape white victims have 
been disporportionately sentenced to death by reason of 
race, during the years 1945-1965 in the State of 
Arkansas,” (Petitioner’s Brief, p. 19), and the Court of 
Appeals seemed to agree. The statistics for the nation at 
large strongly imply that what is true in Arkansas is true 
in the entire South (Id. at 13-14). Accumulated experi­
ence and professional opinion is virtually unanimous, 
moreover, that throughout the nation, “the death sen­
tence is disproportionately imposed and carried out on 
the poor, the Negro, and the members of unpopular 
groups.” President’s Commission on Law Enforcement 
and Administration of Justice, Report (The Challenge of 
Crime in a Free Society) (1967) 143.

The Court of Appeals was wrong in holding that peti­
tioner was obliged to prove that his particular jury was 
racially motivated, and that he failed to do so. Moreover, 
no such impossible burden need be met to establish, at 
the very least, that there was a substantial risk that a 
totally uninstructed jury would give vent to imper­
missible passions and prejudices in imposing the death 
penalty. It would be rank hypocrisy to deny that such a 
risk existed and was substantial. Nothing more is needed 
to make it incumbent upon a court to take measures to 
counteract the risk. Compare North Carolina v. Pearce, 
395 U.S. 711 (1969), where this Court recently held 
that explicit findings are essential to protect a defendant 
against the apparent risk that his sentence might be 
based upon an impermissible consideration (there, 
penalty for a prior appeal).

At the heart of our concepts of Due Process and fair 
trial is the notion that the process must be so structured



10

as to minimize passion, prejudice or corrupt motives as 
ingredients of decision. Trials must not only be fair in 
fact, they must appear fair as well. “Justice must satisfy 
the appearance of justice.” Offutt v. United States, 348 
U.S. 11, 14 (1954); In re Murchison, 349 U.S, 133, 136 
(1955). See also, Estes v. Texas, 381 U.S. 532, 542 
(1965). There are myriad cases in which this Court has 
refused to inquire behind the apparent unfairness of a 
practice to see whether in the particular case actual 
prejudice was effected. See, e.g., Turney v. Ohio, 273 
U.S. 510 (1927) where the judge’s financial interest (to 
the tune of $12) in the outcome of a case was enough to 
invalidate his judgment. “Every procedure which would 
offer a possible temptation to the average man. . . not to 
hold the balance nice, clear and true between the State 
and the accused, denies the latter due process of law.” 
(273 U.S. at 532). A fine of $100 was involved. A 
fortiori, the substance and appearance of fairness are 
required where life is at stake, not merely in the deter­
mination of guilt and innocence, but in the sentencing 
procedure as well. Indeed, because there is so little con­
nection between conviction and the death penalty, it is 
the sentencing process which particularly demands 
adherence to fair procedures.

There are many cases in which this Court has held that 
specific steps must be taken to ensure the fairness-and 
protect the appearance of fairness—of criminal trials. 
The idea that Due Process involves affirmative protective 
measures is nothing new. See, e.g., Sheppard v. Maxwell, 
384 U.S. 333, (1966), where the Court stated that Due 
Process requires trial judges to “take strong measures to 
ensure that the balance is never weighed against the



accused”—there, by possibly prejudicial publicity; here, 
we would argue, by the risk of race prejudice. Cf. also 
Spencer v. Texas, 385 U.S. 554 (1967) (instructions that 
prior crimes, introduced pursuant to a recidivist statute, 
could not be taken into account as to guilt).

A system which authorizes predominantly white, 
middle class juries to mete out a death sentence to any­
one they convict of a so-called “capital” offense, for any 
reason or for no reason, and which promises those juries 
that they will never be compelled to reveal or to articu­
late their reasons or lack of reasons, and which results in 
the disproportionate infliction of the death penalty on 
Negroes, plainly fails in its duty both to be and to appear 
fair. Due Process in its most elemental sense is glaringly 
denied.

Although about as likely as the moon’s being a mirage, 
it is nonetheless possible that no jury ever voted to kill a 
defendant because of the color of his skin, his social 
status, or his economic condition. Though every known 
attempt of social scientists to determine the nexus 
between the death penalty and race in the American 
South has failed to exclude the link, though every known 
statistical study shows a connection, though virtually all 
students of the subject believe that there is a causal rela­
tionship, everybody may be wrong. Everyone may also 
be wrong that prejudicial publicity, as in Sheppard, supra, 
wreaks prejudice. The point is that so long as the data is 
such as to persuade virtually everyone who examines it 
that juries are executing people because they are Negro, 
Due Process demands that the sentencing process include 
measures to counteract the apparent risk of unconstitu­
tional discrimination. Surely, the likelihood of sen­
tencing based upon an impermissible consideration has



12

been far more clearly demonstrated in this case than it 
was in Pearce, supra, where this Court relied mainly 
upon the State’s failure affirmatively to demonstrate a 
proper basis. The Due Process need for prophylactic 
rules— requiring specific findings, as in Pearce, or at least 
instructions to the jury on permissible and impermissible 
consideration—follows a fortiori in this case. The awe­
some factor of death adds immeasurably to the need.

The State of California contends that “If Arkansas 
jurors are . . . bent on racial discrimination, there is no 
reason whatever to believe that they will be deterred in 
carrying out such discrimination by any instruction or 
combination of instructions which a judge may read to 
them.” (Brief of California Amicus Curiae, in Support of 
Respondent, p. 26). Yet at the very center of our jury 
system is the assumption that instructions are followed. 
Cf. Spencer v. Texas, supra, at 565 (1967). If that 
assumption were abandoned, the entire system of jury 
trials and appellate review would lie without foundation. 
Furthermore, even if the Court, laying aside that basic 
assumption underlying our jury system, were to assume 
that instructions to juries regarding the death penalty 
would be ignored, Due Process would nonetheless com­
pel the State of Arkansas to remove its imprimatur from 
the lawless acts of its juries. Compare, Griffin v. Cali­
fornia, 380 U.S. 609, 614 (1965). If Arkansas jurors 
were told by the court, either expressly or by fair 
implication from its submission of criteria, that they 
could not kill on account of race, the State would at 
least have obtained, at virtually no cost, some distance 
from the suspicion of discrimination. When it fails to do 
so, it seems to many fair minded observers to condone 
racially motivated executions.



33

The Arkansas procedure thus feeds the most corrosive 
suspicions one can entertain about a legal system, surely 
outranking, in its capacity to produce distrust and disre­
spect for law, the use of forced confessions or illegal 
searches to obtain convictions, and other practices which 
this Court has condemned and for which it has fashioned 
prophylatic rules to protect constitutional rights.

D.

The standards for imposition of the death penalty 
which Due Process and Equal Protection require are 
readily available.

We have shown three ways in which the Arkansas 
delegation, without standards, of the power to select a 
few persons for capital punishment violates fundamental 
constitutional norms. The basic ingredient of standards 
which is absent from the California procedure could 
easily be supplied. The Model Penal Code, for example, 
which establishes prerequisite findings and enumerates 
aggravating and mitigating circumstances (American Law 
Institute, Model Penal Code, Section 210.6, pp. 128- 
132), gives definite standards and informs the jury, by 
clear implication, that it may not impose the death 
penalty for any other reasons—not because of skin color, 
nor of social standing, nor of economic condition. But 
as in Giacco, this Court is not called upon to determine 
what the particular criteria must be—only that there 
must be some definite criteria set by every State which 
chooses to authorize its juries to select those upon „ 
whom capital punishment is to be imposed.



14

II
THE SINGLE-VERDICT PROCEDURE COMPOUNDS THE 
VICES OF STANDARDLESS SENTENCING AND IMPOSES 
NEEDLESS AND IMPERMISSIBLE BURDENS ON THE RIGHT 
TO A FAIR TRIAL ON THE ISSUE OF GUILT OR INNO­
CENCE.

As petitioner has amply shown (Petitioner’s Brief, at 
pp. 66-78), a defendant in a capital case in Arkansas is 
faced with a grisly choice. He is permitted to adduce 
mitigating evidence on the penalty question only at the 
price of surrendering his right to a full and fair trial on 
the issue of guilt and his right not to incriminate himself. 
This is enough to invalidate the procedure. Yet the 
choices are even grislier than petitioner suggests. If an 
Arkansas rape defendant really fears that his life will be 
forfeit and is bent on saving it, he may be well advised not 
merely to surrender his right not to testify, and to forego 
the defense of consent and other trial rights, but also to 
yield his very right to be tried. Only by pleading guilty 
can he maximize his chances of saving his life.

Even leaving out of account (which the Court should 
by no means do) the widespread practice of guilty plea 
bargaining, the Arkansas defendant who pleads guilty, 
although not thereby absolutely immunizing himself (in 
absence of a plea bargain to that effect) from the death 
sentence, as in United States v. Jackson, 390 U.S. 570 
(1968), will nonetheless have purchased a sentencing jury 
which is entirely uncontaminated by the trial of guilt2 —

2 If an Arkansas defendant pleads guilty to rape, empanelment 
of a jury to fix the sentence is mandatory. Searber v. State, 226 
Ark. 503, 291 S.W. 2d 241 (1956).



15

one which hopefully will hear and sift his mitigating evi­
dence with a relatively sympathetic ear. The defendant 
who pleads guilty will not, after all, have “compounded 
his offence” by denying it. His one and only appearance 
before the jury will be in the role of a repentent sinner. 
The evidence and arguments he adduces will not be con­
tradicted, watered down, confused, or compromised by 
the trial of guilt. His chances of living may be enhanced 
manyfold. The choices open, and the pressures at work, 
are not, therefore, different in kind from those in Jackson. 
Here, as in Jackson, the procedure for assessing the death 
penalty needlessly burden the exercise, not only a Fifth 
Amendment rights, but also of the Sixth Amendment 
right to a trial on the question of guilt.3

The Court’s recent decision in North Carolina v. Pearce, 
supra, re-emphasized the importance of insulating the ex­
ercise of constitutional rights against pressures to forego 
them. In Pearce, the Court held that the danger to the 
free exercise of both constitutional and non-constitutional 
rights—the constitutional right to seek a fair trial and

3It is of no consequence that the petitioner resisted the pres­
sures to yield his right to a trial which are inherent in the Arkansas 
system. The petitioner in Griffin v. California, 380 U.S. 609 
(1965), also resisted the temptation to surrender his right not to 
testify, which was produced by the threat of comment thereon, yet 
his conviction and sentence were reversed; and the defendants, 
Pearce and Rice, in North Carolina v. Pearce, supra, also withstood 
the pressures against taking an appeal, which was produced by the 
risk of an increased sentence at a second trial, yet their sentences 
were reversed. Petitioner Maxwell, like Griffin, Pearce and Rice, 
paid the price of resistance. In Griffin, the price was adverse com­
ment and its potential effect on conviction; in Pearce, the price was 
the increased sentence. In Maxwell’s case, the price was a sentenc­
ing jury which was potentially contaminated, inflamed, and prej­
udiced by the trial o f guilt.



16

the non-constitutional right to appeal or collateral attack 
-inherent in the possibility of a heavier sentence upon re­
trial must be minimized by judicial articulation of a basis 
for any such heavier sentence which excludes impermis­
sible penalization. Explicit findings were held necessary 
to assure prospective appellants or petitioners that they 
run no risk of being penalized for the exercise of their 
rights.

The Arkansas capital defendant who resists the pres­
sures to plead guilty faces a trial on the issues of guilt, 
and, if found guilty, punishment, at which he is guaran­
teed both constitutional and non-constitutional rights. 
But given the unlimited capital sentencing discretion con­
ferred by Arkansas law, he exercises these rights at his 
grave peril. He may be sentenced to death for any reason 
the jury chooses (or for different reasons the individual 
jurors choose); and the reasons for his enhanced sentence 
remain silent, unconfrontable and unreviewable. He may 
be sentenced to death because he did not take the wit­
ness stand or because he did take the stand (and claimed 
the prosecutrix in a rape case consented), or because he 
raised the defense of insanity or because he failed to raise 
it. Indeed, every trial decision whether to exercise his 
substantial rights, requires a “guess and a gamble,” Whitus 
v. Balkcom, 333 F.2d 496 (5th Cir. 1964), in which the 
stakes are his life, for the jury may choose to kill him for 
pursuing his rights.

True, every trial on the issue of guilt entails risks in the 
choice of trial tactics, but the defendant is not placed “in 
the dilemma of making an unfree choice,” North Caro­
lina v. Pearce, supra, 395 U.S., at 724 (quoting from Wor­
cester v. Commissioner, 370 F.2d 713, 718), for with re­



17

spect to guilt the defendant knows that the jury would 
be instructed what to consider and often what not to 
consider. See Griffin v. California, supra. But the Ar­
kansas single-verdict standardless capital sentencing pro­
ceeding intertwines and confuses the issues of guilt and 
penalty while allowing the jury free reign to condemn the 
defendant for any reason at all. So that not only is the 
capital defendant placed in a position where trial on the 
issue of guilt conflicts with trial on the issue of penalty, 
but also in deciding on how to proceed in trying these 
issues he is confronted with choices which entail the ex­
ercise or relinquishment of guaranteed rights while fore­
warned that the jury is free to make death the price.

Mr. Justice Black stated the pertinent principles in 
North Carolina v. Pearce.

[A] State cannot permit appeals in criminal cases 
and at the same time make it a crime for a con­
victed defendant to take or win an appeal. That 
would plainly deny due process of law . . . . [T]he 
very enactment of two statutes side by side, one 
encouraging and granting appeals and another mak­
ing it a crime to win an appeal, would be contrary 
to the very idea of government by law. It would 
create doubt, ambiguity, and uncertainty, making 
it impossible for citizens to know which one of the 
two conflicting laws to follow, and would thus vio­
late one of the first principles of due process.” 395 
U.S. at 724-725 (Black, J., concurring and dissent­
ing)

The State of Arkansas has afforded the capital defend­
ant numerous rights in his defense, many guaranteed by 
the federal constitution, but the “State . . . has made it a 
crime,” Ibid, punishable by death at the discretion of the 
jury to exercise those rights. And, as Mr. Justice Black



18

has pointed out, for the State to confront a defendant 
with such a dilemma is “contrary to the very idea of 
government by law. It . . . create[s] doubt, ambiguity, 
and uncertainty, making it impossible to know which one 
of the two conflicting laws to follow” . Ibid. And what 
Mr. Justice Black concluded in the context of a State’s 
permitting appeals while at the same time taxing the exer­
cise of the right to appeal is applicable here as well: It 
“violatefs] one of the first principles of due process.” 
Ibid.

The similarity of this case to Jackson, Griffin, and 
Pearce makes clear that petitioner, in asking the Court to 
invalidate the standardless unitary trial as it exists in 
Arkansas, asserts no novel principles. He seeks only 
plainly warranted relief from a procedure which is 
destructive of a constellation of well established and 
most fundamental constitutional rights.

The decision of the Court of Appeals for the Eighth 
Circuit should be reversed.

CONCLUSION

Berl I. Bernhard 
William T. Coleman, Jr. 
Samuel Dash 
John W. Douglas 
Steven Duke 
William T. Gossett 
John Griffiths 
Mrs. Rita Hauser

George N. Lindsay 
Burke Marshall 
Monrad S. Paulsen 
Steven R. Rivkin 
Whitney North Seymour 
Jerome J. Shestack 
Cyrus R. Vance 
James Vorenberg 
Amici Curiae



19

CERTIFICATE OF SERVICE
I hereby certify that copies of the foregoing Brief for 

the Amici Curiae have been served by mail, postage pre­
paid, this 24th day of October, 1969, upon counsel for 
the respondent, Joe Purcell, Attorney General of Arkan­
sas, Department of Justice, Little Rock, Arkansas, 72201, 
and on counsel for the petitioner, Michael Meltsner, 10 
Columbus Circle, New York, New York, 10019.

fieri I. Bernhard