Maxwell v. Bishop Petitioner's Motion for Enlargement of the Grant of Certiorari

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Isr t h e

i>uprmT tour! of %  lutt^ States
October Term, 1969 

No. 13

W illiam L. Maxwell,
Petitioner,

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

Respondent.

OH WRIT OP CERTIORARI TO THE UNITED STATES COURT OF APPEALS 

FOR THE EIGHTH CIRCUIT

PETITIONER’S MOTION FOR ENLARGEMENT 
OF THE GRANT OF CERTIORARI

Jack Greenberg 
James M. Nabrit, III 
Norman C. A maker 
M ichael Meltsner 
Jack H immelstein 
Elizabeth D ubois

10 Columbus Circle 
New York, New7 York 10019

George H oward, Jr.
329%Main Street
Pine Bluff, Arkansas 71601

A nthony G. A msterdam

Stanford University Law School 
Stanford, California 94305

Attorneys for Petitioner



I s  THE

(Ernirt of tk? lltttteit States
October Term, 1969

No. 13

W il l ia m  L. M a x w e l l ,
Petitioner,

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

Respondent.

OS WRIT OF CERTIORARI TO THE TTSITEI) STATES COURT OF APPEALS 

EOR THE EIGHTH CIRCUIT

PETITIONER’ S MOTION FOR ENLARGEMENT 
OF THE GRANT OF CERTIORARI

In this capital case, certiorari was sought on three re­
lated issues challenging the administration of the death 
penalty for the crime of rape in the State of Arkansas. 
Petitioner asked the Court to determine whether (1) un­
constitutional racial discrimination in the verdicts of life 
or death handed down by Arkansas juries had been proved 
and was unrebutted on this record; (2) the arbitrary power 
committed by state law to capital jurors, enabling them to 
decide the question of life or death lawlessly and capri­
ciously, and to discriminate on racial or other invidious 
grounds if they so choose, immune against review or cor­
rection of any sort, was itself unconstitutional; and (3) 
the single-verdict capital trial procedure, which deprives 
the jury of information prerequisite to rational sentenc-



2

mg choice except at the cost of destruction of the defen­
dant’s privilege against self-incrimination and severe preju­
dice to him on the issue of guilt or innocence, was (stand­
ing alone or in combination with the arbitrary sentencing 
discretion just described) unconstitutional. We respect­
fully refer the Court to pp. 2-4 of the Petition for a Writ 
of Certiorari for the detailed phrasing of each question.

Certiorari was granted on December 16, 1968, limited to 
the second and third questions. The case was argued early 
in March of 1969 and was ordered restored to the calendar 
for reargument at the end of May. In advance of that re­
argument, we now move that the order granting certiorari 
be enlarged to include the first of the described questions 
as well.

We must candidly admit that our reasons for believing 
this issue worthy of review by the Supreme Court of the 
United States are no different than they were in 1968. The 
present record presents, we think, a plain and solid case 
of racial discrimination in its most vicious form. It docu­
ments what knowledgeable observers have long known: 
that juries in those few, largely Southern, jurisdictions 
which retain the death penalty for rape consistently dis­
criminate on grounds of race in deciding whether men 
shall live or die. It was the purpose of a Constitutional 
Amendment now one hundred years old to end forever 
this invidious practice of systematically subjecting one 
race to punishments more severe than those customarily 
meted out to the other. And whatever excuse—we do not 
say justification—might ever be found for allowing racial 
discrimination to go uncorrected in the administration of 
any governmental function, we submit there can be none 
for blinking discrimination in the matter of taking human 
life.



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Our reason for venturing to renew onr request that the 
Court consider this question is simple enough. The case 
has now been once argued and submitted, considered by the 
Court, and ordered reargued. Obviously, the Court now 
has greater familiarity with the record, with the issues 
in the case, and with their interrelationship, than would 
have been possible on the certiorari papers in December, 
1968. We can do no more—nor less, in a matter of this 
importance—than to ask the Court’s judgment, upon the 
further study it has given the case, whether the racial 
discrimination question presented does not warrant its 
review equally with the other vital issues herein.

Accordingly, we respectfully move that the scope of the 
Court’s writ of certiorari be enlarged to include Question 1 
of the petition for the writ. See Petition for Writ of Cer­
tiorari, pp. 2-33, 35-58.

Respectfully submitted,

J ack Greenberg 
James M. Nabb.it, III 
Norman C. A maker 
Michael Meltsner 
Jack H immelstein 
E lizabeth Dubois

10 Columbus Circle 
New York, New York 10019

George H oward, Jr.
329ys Main Street
Pine Bluff, Arkansas 71601

A nthony G. A msterdam
Stanford University Law School 
Stanford, California 94305

Attorneys for Petitioner



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