Witherspoon v. Illinois Motion for Leave to Participate in Oral Argument as Amicus Curiae

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IN THE
SUPREME COURT OF THE UNITED STATES 

OCTOBER TERM, 1967

No. 1015
WILLIAM C. WITHERSPOON,

Petitioner,
- v. -

STATE OF ILLINOIS,
Respondent.

ON WRIT OF CERTIORARI TO THE 
SUPREME COURT OF ILLINOIS

No. 1016
WAYNE DARNELL BUMPERS,

Petitioner,
- v. -

STATE OF NORTH CAROLINA,
Respondent.

ON WRIT OF CERTIORARI TO THE 
SUPREME COURT OF NORTH CAROLINA

MOTION OF THE NAACP LEGAL DEFENSE AND EDUCATIONAL 
FUND, INC., AND THE NATIONAL OFFICE FOR THE RIGHTS 
OF THE INDIGENT FOR LEAVE TO PARTICIPATE IN ORAL 
ARGUMENT AS AMICI CURIAE.

JACK GREENBERG 
JAMES M. NABRIT, III 
MICHAEL MELTSNER 
LEROY D. CLARK 
NORMAN C. AMAKER 
CHARLES S. RALSTON 
JACK HIMMELSTEIN

10 Columbus Circle 
Suite 2030New York, New York 10019

ANTHONY G. AMSTERDAM 
3400 Chestnut Street 
Philadelphia, Pa. 19104

Attorneys for the N.A.A.C.P. Legal Defense and Educational 
Fund, Inc. and National 
Office for the Rights of the 
Indigent.



IN THE
SUPREME COURT OF THE UNITED STATES 

OCTOBER TERM, 1967

NO. 1015
WILLIAM C. WITHERSPOON,

Petitioner,
- v. -

STATE OF ILLINOIS,
Respondent.

ON WRIT OF CERTIORARI TO THE 
SUPREME COURT OF ILLINOIS

NO. 1016
WAYNE DARNELL BUMPERS,

Petitioner,
- v. -

STATE OR NORTH CAROLINA,
Respondent.

ON WRIT OF CERTIORARI TO THE 
SUPREME COURT OF NORTH CAROLINA

MOTION FOR LEAVE TO PARTICIPATE IN ORAL ARGUMENT AS AMICI CURIAE

Fund, Inc
Movants, N.A.A.C.P. Legal Defense and Educational

1/, and National Office for the Rights of the Indigent

1/ Movant, N.A.A.C.P. Legal Defense and Educational Fund, Inc., 
is a non-profit corporation, formed to assist Negroes to secure 
their constitutional rights by the prosecution of lawsuits. The Legal Defense Fund (LDF) in 1965 established as a separate corp­
oration movant. National Office for the Rights of the Indigent 
(NORI) which has among its objectives the provision of legal 
representation to the poor in individual cases and the presenta­
tion to appellate courts of arguments for changes and develop­
ments in legal doctrine which unjustly affect the poor. A 
fuller description of movants' activities is set out in Motion 
for Leave to File Brief Amici Curiae at pp. 2-M - 4-M.



have submitted to the Court a Motion for Leave to File 
Brief Amici Curiae and a Brief Amici Curiae. Movants 
now respectfully request permission to participate in 
oral argument as amici curiae, for the following 
reasons:

(1) Movants are responsible for, or are
assisting in, the representation of about half of the

2/
400 men on death rows in the United States. The 
present cases raise an issue common to virtually all 
of them, and which we have raised, inter alia, in 
class-action proceedings that have resulted in the 
interlocutory stays of execution of all condemned men 
in the States of California and Florida. Disposition 
of the cases by this Court is likely critically to affect 
the interests of these men. Movants' participation in 
oral argument will assist in the clarification of issues 
before the Court so as to avoid a disposition that may 
unwittingly prejudice their interests.

(2) As a result of our responsibilities in 
representing these men, movants have information and a 
perspective that are not being presented to the Court 
by any of the parties before it, and which the Court 
should properly consider. Specifically:

(a) In many of the cases in which we 
represent men sentenced to death, we have advanced the 
scrupled-juror claim in conjunction with other federal 
constitutional contentions, not directly raised in the 
Witherspoon and Bumpers cases, but which are so intimately 
related to the scrupled-juror issue that we believe this 
Court cannot properly view the latter issue in isolation 
from them.

(b) In preparation for evidentiary hearings 
in our cases, we have commissioned and are participating

2/ See our Motion for Leave to File Brief Amici Curiae, at 
p. 5-M.

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in the designing of a large-scale empirical study, employ­
ing social science techniques, that bears centrally on the 
scrupled-juror issue and upon the adequacy of the records 
now before the Court as the basis for deciding it.

(c) Because the Court's decision in the 
present cases has potential application to almost all of 
the men on death rows in the United States, the question 
of retroactivity of any decision on the merits is of 
literally vital importance. We represent substantial 
numbers of these men and therefore have an enormous 
interest, not shared by the parties, in this question.

(3) We have urged in our brief amici curiae 
that the Court make a disposition of these cases which 
is substantially different from that urged by any of 
the parties, and which is likely to be opposed vigorously 
by them. We contend, briefly, that the Court should not 
now decide the ultimate constitutional question whether 
death-qualifying a capital jury violates the Constitution 
of the United States. In our view, the procedural posture 
of the cases suggests the appropriateness of dispositions 
without decision of that question; and its decision would 
be ill-advised because (A) the question is presented here 
in isolation from others critically and functionally 
interrelated with it; and (B) the nature of the scrupled- 
juror issue itself is such that an adequate factual record,
< not presented to the Court by either of these cases at 
this time, is the necessary condition to its wise and 
deliberate decision. We therefore urge that the Witherspoon 
case be reversed and remanded for a plenary evidentiary 
hearing on critical issues of constitutional fact; and 
if not reversed on other grounds, that Bumpers be 
remanded in a similar fashion. Oral argument would 
permit the presentation to the Court of the reasons

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supporting our views that this is the most fitting course 
of constitutional adjudication of the broadly important 
issues raised herein, and that the Court need not and 
should not now determine the submissions made by the 
several parties on the merits of these cases.

WHEREFORE, movants pray that they be granted 
leave to participate as amici curiae in oral argument 
before the Court.

Respectfully submitted,
JACK GREENBERG 
JAMES M. NABRIT, III 
MICHAEL MELTSNER 
LEROY D. CLARK 
NORMAN C. AMAKER 
CHARLES S. RALSTON 
JACK HIMMELSTEIN

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

ANTHONY G. AMSTERDAM 3400 Chestnut Street 
Philadelphia, Pennsylvania 19104

Attorneys for the N.A.A.C.P. Legal 
Defense and Educational Fund, Inc., and National Office for the Rights of the Indigent.

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