DeFunis v. Odegaard Brief of a Group of Law School Deans as Amici Curiae

    No. 13

in tije

Supreme Court of tfjc States
October T erm, 1969

WILLIAM L. MAXWELL,
Petitioner,

vs.
O. E. BISHOP, Superintendent of Arkansas State Peni­

tentiary,
Respondent.

On Writ of Certiorari to the United States 
Court of Appeals for the Eighth Circuit,

MOTION FOR LEAVE TO FILE BRIEF OF AMICI 
CURIAE AND BRIEF OF AMICI CURIAE

Submitted By
American Friends Service Committee,
Board of Social Ministry, Lutheran Church in America,
Church of the Brethren, General Board,
Council for Christian Social Action of the United Church 

of Christ,
Department of Church in Society of the Christian Church 

(Disciples of Christ)
The Executive Council of the Episcopal Church in the 

United States (Experimental and Specialized Services 
Section)

General Board of Christian Social Concerns of the United 
Methodist Church

Greek Orthodox Archdiocese of North and South America,
The American Ethical Union
The United Presbyterian Church in the United States of 

America by George E. Sweazey, Moderator and William 
P. Thompson, Stated Clerk of the General Assembly.

W illard J. L assers 
E lsox, L assers and W olff 
(A lex E lsox, of coimsel)

11 South La Salle Street 
Chicago, Illinois 60603 

E lmer Gertz
120 South La Salle Street 
Chicago, Illinois 60603 

Attorneys for Amici

The Scheffer Press, Inc.— ANdover 3-6850



I N D E X

PAGE

Motion for Leave To File Brief of Amici Curiae ........ 1
Brief of Amici Curiae .....................................................  9

1. Imposition of the Death Penalty In a Unitary 
Trial Is a Deprivation of Life and Liberty With­
out Due Process .......... ...... .......................... . 9

Conclusion ................................... —........— .....................  13

T able of Cases

Witherspoon v. Illinois, 391 US 510 (1968) .......... ......  12



In T he

SUPREME COURT OF THE UNITED STATES 
October T erm., 1969

No. 13

WILLIAM L. MAXWELL,

vs.
Petitioner,

0. E. BISHOP, Superintendent of Arkansas State Peni­
tentiary,

Respondent.

On Writ of Certiorari to the United States 
Court of Appeals for the Eighth Circuit.

MOTION FOR LEAVE TO FILE BRIEF OF AMICI 
CURIAE AND BRIEF OF AMICI CURIAE

Submitted By
American Friends Service Committee,
Board of Social Ministry, Lutheran Church in America,
Church of the Brethren, General Board,
Council for Christian Social Action of the United Church 

of Christ,
Department of Church in Society of the Christian Church 

(Disciples of Christ)
The Executive Council of the Episcopal Church in the 

United States (Experimental and Specialized Services 
Section)

General Board of Christian Social Concerns of the United 
Methodist Church

Greek Orthodox Archdiocese of North and South America,
The American Ethical Union
The United Presbyterian Church in the United States of 

America by George E. Sweazey, Moderator and William 
P. Thompson, Stated Clerk of the General Assembly.



The above religious organizations by their attorneys, 
Willard Lassers and Elson, Lassers and Wolff, (Alex 
Elson, of counsel) and Elmer Gertz, move for leave to file 
a brief amici curiae in support of petitioner, William L. 
Maxwell. In support of this motion the religious organiza­
tions represent as follows:

The legal arguments on behalf of petitioner have been 
ably presented by his counsel. There are, however, a 
number of ethical considerations of deep concern to the 
religious organizations. Most of these organizations for­
mally have taken stands in opposition to capital punish­
ment.1 They are aware that the issue of the death penalty 
as such is not at bar.

They desire to present a point of view somewhat differ­
ent from that of petitioner, which they think will con­
tribute to a more complete understanding of the case. 
Hence ask leave to file this brief.

These organizations have a total membership exceeding 
34,500,000. They are:

1. AMERICAN FRIENDS SERVICE COMMITTEE.
The Americans Friends Service Committee has, since 

1917, engaged in religious, charitable, social, philanthropic 
and relief work on behalf of the several branches and 
divisions of the Religious Society of Friends in America. 
There are approximately 123,000 Friends in the United 
States. The American Friends Service Committee, al­

1 The statements appear in the appendix to the amicus 
brief filed on behalf of the American Friends Service 
Committee, et al, in Witherspoon v. Illinois, O.T. 1967, 
No. 1015. Substantially every major denomination has 
expressed its opposition to the death penalty. The state­
ments appear in the Witherspoon brief.



—  3 —

though it cannot speak for all Friends, has a vital interest 
in this litigation because of Friends’ historic and con­
tinued opposition to the taking- of human life by the 
State. Such opposition to capital punishment goes back 
more than 300 years, to the beginning of the Quaker 
movement and stems from Quaker belief that there is an 
element of the divine in every man.

2. BOARD OF SOCIAL MINISTRY, LUTHERAN 
CHURCH IN AMERICA

The Board of Social Ministry is an instrumentality of 
the Lutheran Church in America. Its object is “ to inquire 
into the nature and proper obedience of the church’s 
ministry within the structures of social life . . . devoting 
itself in particular to those aspects of the church’s min­
istry in which individual and social needs are met as an 
expression of Christian responsibility for love and jus­
tice.”

The 1966 biennial convention of the Lutheran Church in 
America adopted a social statement on capital punish­
ment encouraging abolition of capital punishment. The 
Lutheran Church in America has 3,300,000 members in 
6,225 congregations in the United States and Canada.

3. CHURCH OF THE BRETHREN GENERAL 
BOARD

The Church of the Brethren General Board is the ad­
ministrative arm of the Church of the Brethren. It carries 
out policies adopted by the church’s legislative arm— 
Annual Conference—in the areas of world ministries, 
parish ministries and general services. Among its world 
ministries are efforts to correct social injustices at home 
and abroad. The Church of the Brethren has adopted



policy statements opposing capital punishment on several 
occasions, the last one being in 1959 at the Annual Con­
ference. The Church of the Brethren has 200,000 members 
in approximately 1,000 churches.

4. COUNCIL FOR CHRISTIAN SOCIAL ACTION 
OF THE UNITED CHURCH OF CHRIST

The Council for Christan Social Action is an instru­
mentality of the United Church of Christ devoted to 
promoting education and action in international, political 
and economic affairs. The Council stated its position in 
opposition to capital punishment in a policy statement of 
January 30, 1962. The United Church of Christ has over 
10,000,000 adherents.

5. DEPARTMENT OF CHURCH IN SOCIETY OF 
THE CHRISTIAN CHURCH (DISCIPLES OF 
CHRIST)

The Department of Church in Society of the Division 
of Church Life and Work is a part of The United 
Christian Missionary Society, a national unit of the 
Christian Church (Disciples of Christ). The Christian 
Church has approved two resolutions on capital punish­
ment in its International Convention. The first resolution, 
approved in October 1957 at Cleevland, Ohio, stressed 
the need for rehabilitation of criminals and indicated that 
“ the practice of capital punishment stands in the way of 
more creative, redemptive and responsible treatment of 
crime and criminals. The second, “ Concerning Abolition 
of Capital Punishment,” was approved in the October 
1962 Assembly of the International Convention at Los 
Angeles, California. This resolution specifically placed 
the Christian Church (Disciples of Christ) on record as



—  5 —

“ favoring a program of rehabilitation for criminal of­
fenders rather than capital punishment.”

The Christian Church (Disciples of Christ) in the 
United States and Canada has a membership of 1,600,648.

6. THE EXECUTIVE COUNCIL OF THE EPISCOPAL 
CHURCH IN THE UNITED STATES (EXPERI­
MENTAL AND SPECIALIZED SERVICE SEC­
TION)

The Executive Council is the principal administrative 
body of The Domestic and Foreign Missionary Society 
of The Protestant Episcopal Church in the United States 
of America which has 7,546 parishes and missions, 11,362 
ordained clergy and 3,588,435 baptized members.

7. GENERAL BOARD OF CHRISTIAN SOCIAL 
CONCERNS OF THE UNITED METHODIST 
CHURCH

The General Board of Christian Social Concerns is an 
instrumentality of the United Methodist Church. Its pur­
pose is to further the works of the church in the sphere 
of social affairs. The United Methodist Church at its 
1960 General Conference adopted a statement opposing 
the death penalty. The statement was revised in 1964 and 
is now part of United Methodist Social Policy. The United 
Methodists number 11,000,000 members among their 
38,000 churches which are situated in every state.

8. GREEK ORTHODOX ARCHDIOCESE OF 
NORTH AND SOUTH AMERICA.

The Greek Orthodox Church expresses the belief that 
every person should be afforded every opportunity to 
establish his innocence. If he is found guilty, he should be



—  6 —

afforded every opportunity to present what evidence he can 
to mitigate his guilt. The Greek Orthodox Church consists 
of 500 parishes, largely in the United States and Canada, 
and some in Central and South America. The membership 
of the Church is 1,500,000.

9. THE AMERICAN ETHICAL UNION
The American Ethical Union is a federation of the 

Ethical Culture Societies and Fellowships in the United 
States, which, collectively constitute a liberal religious 
humanist fellowship known as the “Ethical Movement” 
or the “Ethical Culture Movement.”

The first Ethical Culture Society was founded in New 
York City in 1876 by Dr. Felix Adler. There are today 
24 Societies and Fellowships of the American Ethical 
Union in ten states and the District of Columbia. The 
American Ethical Union is a member of the International 
Humanist and Ethical Union, a world-wide organization, 
with headquarters in Utrecht, The Netherlands. Religious 
humanists oppose the death penalty. The American Ethi­
cal Union has adopted policy statements calling for its 
abolition, and Members and Leaders (Ministers) of Ethi­
cal Culture Societies have been active and, in many in­
stances, in the forefront of organized efforts to have the 
death penalty abolished throughout the United States.

10. THE UNITED PRESBYTERIAN CHURCH IN
THE UNITED STATES OF AMERICA BY 
GEORGE E. SWEAZY, MODERATOR AND 
WILLIAM P. THOMPSON, STATED CLERK 
OF THE GENERAL ASSEMBLY

The United Presbyterian Church adopted a statement 
condemning the death penalty at its 171st general as­



—  7 —

sembly in 1959 and adopted a revised statement at the 
177th General Assembly in 1965.

The United Presbyterian Church in the United States 
of America has a membership of 3,250,000. It has 8,750 
churches throughout the nation.

Petitioner has consented to the filing of this brief. 
Consent has been requested of respondent, but we have 
not yet received a reply.

Respectfully submitted,

W ILLABD J. LASSESS 
E lson, L assebs & W olff 
( Alex E lson, of counsel)

11 South La Salle Street 
Chicago, Illinois 60603

and
E lmee Geetz

120 South La Salle Street 
Chicago, Illinois 60603 

Attorneys for Amici.





BRIEF OF AMICI CURIAE

—  9 —

Amici ask this court to hold for petitioner both on the 
unitary trial issue and on the lack of standards issue. It 
is the unitary trial issue that appears to raise particularly 
grave ethical problems, and for that reason these amici 
confine their brief to that issue.

I .

Imposition of the Death Penalty In a 
Unitary Trial Is a Deprivation of Life 
and Liberty Without Due Process

The death penalty is the most awful penalty the law 
can impose. Of all murderers, only a few are selected 
for the supreme sentence. One would suppose that those 
so selected are chosen only after the most searching probe 
into every phase of their lives, their character, their 
motivation and their personalities. For those who plead 
guilty and for those who elect a bench trial, the oppor­
tunity for such probe is open. But in most states, for 
the defendant who pleads not-guilty, and elects a jury 
trial, the door to such probe, realistically, is closed. Be­
cause he asserts his innocence, he must yield his oppor­
tunity to an effective plea for mercy.

To be sure, the right to present evidence in support of 
a plea for mercy and a plea itself is preserved—nominally. 
The accused may both argue his innocence and at one and 
the same time assert that if his defense is disbelieved, the 
jury should spare his life. But such a defense surely is 
self-destructive. The jury of laymen scarcely will appre-



10 —

ciate the dilemma of the accused. Hence, the plea for 
mercy almost surely will he interpreted as a confession 
of guilt. The evidence of innocence disbelieved may influ­
ence the jury to impose the ultimate penalty upon an 
accused who, they deem, sought to trick them into accept­
ing a false tale. The alternative is during the trial to 
present nothing, or, at any rate a minimum in support of 
a plea for mercy. This course means risking all on the 
plea of innocence. Thus the accused is presented with a 
cruel dilemma of trial tactics.

But far more is involved than a hard choice of trial 
strategy. Moral issues are at stake as well. A defendant 
who asserts his innocence may well decline to plead for 
mercy, apart from the effect of such plea on his chance 
of acquittal. The moral man might well find it wrong to 
plead for mercy for a crime he asserts he did not commit, 
at least until a judgment of guilt has been passed upon 
him. Only at such point, having been judged by a fallible 
human judgment, might a man feel free to ask for the 
sparing of his life.

For the community, the moral issues are more complex, 
more profound. Many defendants, perhaps most, will 
elect to make no plea for mercy, preferring to rely on 
the plea of innocence. In such case the jury makes its 
choice, knowing nothing of the defendant as a. human 
being. Yet it is asked to consider the extreme penalty 
for him.

This, we think, imposes an immoral task upon the jury, 
wholly apart from the issue of the morality of capital 
punishment itself.

Since most death sentences are imposed for murder, 
let us consider this crime.



11

The Sixth Commandment is “ Thou shalt not kill.” Every 
step in the enforcement of this commandment by society is 
fraught with the greatest difficulties.

A human being is slain by another. To identify the 
killer often is a subtle, baffling task. Often guilt or 
innocence as found by a court turns on the question 
whether the jury believes one man or another; whether 
the rules of evidence permit or exclude one or another 
bit of evidence, and similar issues. Having made a 
decision that the defendant is responsible for the death, 
then the jury has an even more elusive task. Despite the 
infinite complexity of human motivation, the crime must 
be categorized into one of two or three legislatively de­
fined classes, such as “murder”, “voluntary manslaughter” , 
etc.

If the jury chooses the label “murder” , then it must 
fix the punishment. Life and death are in its hands. Here, 
we think, the religious and ethical teachings of our 
Judaic-Christian heritage have special relevance. Only 
divine judgments are perfect. God alone can assess 
truly the measure of a man’s culpability. The truth of 
this ancient teaching has been reaffirmed and reinterpreted 
for us by modern learning concerning human motivation. 
Yet, by an accident in the development of the law, a man 
may be sentenced to death, deprived of an effective oppor­
tunity to present evidence in mitigation. The voice of the 
accused himself is effectively stilled to plead for his own 
life. Even his counsel cannot make a plea for him, or if 
he does so, must mute his speech. The jury which dooms 
a man may know nothing of him as a man, or as a human 
being. His childhood, his youth, his education, his work, 
the circumstances leading to the criminal act—-the jury 
knows nothing of, except insofar as they are presented 
during the guilt-innocence trial. Counsel for petitioner



12

point ont (Pet. Br. 73) that petitioner did not testify. 
Hence, “ The jury who sentenced him to die therefore had 
heard neither his case for mercy, nor even the sound of 
his voice.” Like Joseph K, in Kafka’s The Trial, he is 
sentenced without even reasonable opportunity to submit 
an initial plea for mercy. Like Joseph K, on the last page 
of the novel, petitioner might ask, “Were there arguments 
in his favor that had been overlooked?” The procedure at 
bar would permit petitioner to perish “ like a dog” . The 
“ shame of it” is upon us all.

Such procedure is surely prejudicial to the defendant. 
In addition, and this we stress, it compels the jurors to 
face an impossible moral dilemma. As jurors they are 
sworn to decide between life and death. Yet they are 
deprived, where the defendant pleads innocence, from 
hearing an effective plea for mercy on his behalf. The 
life of a man is in their hands; yet they may know 
almost nothing about that man as a human being. How 
then can their decision be a moral one? Under the cir­
cumstances, it is nearly inevitable that the jury will focus 
npon the crime, and pass judgment upon it, when it should 
judge the man and pass judgment upon him. This, we 
submit, is profoundly wrong.

In Witherspoon v. Illinois, 391 US 510 (1968), this 
Court held it in error to exclude automatically from the 
jury, those who had scruples against the death penalty.

By the inclusion of such persons on the jury, their 
moral values, too, come to be reflected in the ultimate 
decision. The end sought in Witherpsoon is to bring to 
the jury the widest range of public sentiment. But this 
more perfectly constituted jury, however, can scarcely 
perform its function satisfactorily, indeed morally, if it 
is deprived of the fullest knowledge of the man before it.



13

Once the sentence of death is imposed by a jury, the 
defendant suffers a prejudice nearly impossible to over­
come, even in states such as Illinois where the judge may 
overrule the jury. Even if evidence in mitigation is pre­
sented to a judge, he often rejects the jury recommenda­
tion. Reviewing courts, even where empowered to do so, 
are reluctant to overrule a jury or a judge and jury.

The remedy for the evils of the unitary trial is not com­
plex. The jury need only decide first the guilt or innocence 
of the accused. If it determines guilt, it may then hear evi­
dence in aggravation and mitigation and fix or recom­
mend the punishment. This procedure is used successfully 
in a number of states. An alternative is to empanel a 
separate jury solely for the fixing of the penalty. By 
either of these methods, the jury, within the limits of 
human understanding, can make a rational decision on life 
or death. These methods leave to the jury the sentencing 
power, but permits its intelligent exercise. Another pos­
sibility is to restrict the jury to the guilt-innocence issue, 
and to vest sentencing in the judge.

Conclusion

The unitary trial in capital cases unfairly prejudices a 
man on trial for his life and thus constitutes a deprivation 
of due process of law. It confronts the defendant with a 
needless moral question—shall he ask for mercy before 
being judged guilty and while asserting his innocence? 
It requires the jury to decide the awful question of life 
or death when frequently deprived of full knowledge of 
the human being before it.



—  14 —

The unitary trial is a bar to an effective plea by a human 
being for understanding and for mercy. We plead for 
the right to make such a plea. As we show compassion, so 
may we receive compassion. In the words of Amos (5:15) 
let us “ establish judgment in the gate; it may be that the 
Lord God of hosts will be gracious unto” us. In the words 
of Mi cab (6:8), let us strive “ to do justly and to love 
mercy” . These words of Scripture encompass our plea.

We ask that the judgment be reversed and that this 
court find that due process requires the invalidation of 
the unitary trial in capital cases.

Respectfully submitted,

W lLLARD  J. LASSEBS

E lson, L assebs & W olff 
(A lex E lson, of counsel)

11 South La Salle Street 
Chicago, Illinois 60603

and
E lmer Gertz

120 South La Salle Street 
Chicago, Illinois 60603 

Attorneys for Amici.

September 10, 1969