Larkin v. Pullman Standard Brief for Plaintiffs-Appellants

    IN THE

Supreme Court of the United States
Octo ber Term, 1971 

No. 69-500J

L ym an  A. M o ore ,

Vi*.

P e o pl e  of the  State  o f  I l lin o is ,

Petitioner,

Respondent.

Motion for Leave to File Brief Amici Curiae and 
Statement of Interest of the Amici, 

and
Brief of N.A.A.C.P. Legal Defense and Educational 

Fund, Inc., and National Office for the Rights of 
the Indigent.

JACK GREENBERG,
JAMES M. NABRIT, 111,
JACK H1MMELSTEIN,
ELAINE R. JONES,
MARY LYNN WALKER,

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

ANTHONY G. AMSTERDAM, 
School of Law,
Stanford University,
Stanford, California,
Attorneys for the N.A.A.C.P. Legal 

Defense and Educational Fund, 
Inc., and National Office for the 
Rights of the Indigent.

Of Counsel:
RICHARD J. STONE,
STUART P. TOBISMAN,

Parker & Son, Inc., Law Printers, Los Angeles. Phone 724-6622



SUBJECT INDEX
Page

Motion for Leave to File Brief Amici Curiae and
Statement of Interest of the Amici .......................  I

Statement of Facts ............... .......................................  7
Summary of Argument ............................................... . 8

Argument ........... .......................... ..... ...................... . 9

I.
The Death Penalty Cannot Be Carried Out in 

This Case Because Veniremen Who Voiced 
Mere General Objections to the Death Penal­
ty Were Removed From the Jury Which Im­
posed the Sentence ..............................................  9

II.
The Question of Whether the Tenor of the Voir 

Dire in This Case Differed From That in With­
erspoon Is Irrelevant to the Issue of Whether 
Veniremen Were Improperly Excluded ..........  16

III.
The Availability of Peremptory Challenges to 

the State Does Not Render Harmless the Im­
proper Exclusion of Veniremen Under With­
erspoon .............. .........-........... .............................. 18

Conclusion ........................................... ..........................  21

Appendix. Excerpts From the Record on Voir
Dire Examination ........ ....... ................. .....App. p. 1



TABLE OF AUTHORITIES CITED
Articles Page

President’s Commission on Law Enforcement and 
Administration of Justice. Report, The Challege
of Crime in a Free Society (1967), p. 143 ...... 2

Hartung, Trends in the Use of Capital Punishment
(1952), p .284  ............................................................  2

United Nations, Department of Economic and So­
cial Affairs, Capital Punishment— Developments
1961-1965, 1967, p. 2 0 ............................................  2

Weihofen, the Urge to Punish (1956), pp. 164-65
.......................................................................................  2

Wolfgang, Kelly & Nolde, Comparison of the Exe­
cuted and the Commuted Among Admissions to 
Death Row, 53 J. Crim. L., Crim & Pol. Sci. 
(1962), p. 301 ..........................................................  2

Cases
Adderly v. Wainwright, 272 F. Supp. 530 (1967) .. 4
Anderson, In Re, 69 Cal.2d 613 (1968) ...............  19
Boulden v. Holman, 394 U.S. 478 (1968) ..........  13
Marion v. Beto, 434 F.2d 29 (1970) ........................  10
Maxwell v. Bishop, 385 U.S. 650 (1967) ............. 3
Maxwell v. Bishop, 398 U.S. 262 (1969) ...............  14
Moorer v. South Carolina, 368 F.2d 458 (1966) .... 3
People v. Moore, 42 I11.2d 73, 246 N.E.2d 299

(1969) .............................................................. 4, 7, 16
People v. Speck, 41 111.2d 177, 242 N.E.2d 208

(1968) ...................................................16, 17, 18, 21
Sims and Abrams, Matter of, Nos. 24271-2, decided

August 10, 1967 ...............    3
State v. Mathis, 52 N.J. 238, 245 A.2d 20

(1968) ...................................................................18, 21
Witherspoon v. Illinois, 391 U.S. 510 (1968) ........

.................................7, 8, 9, 10, 11, 12, 13, 14, 15, 16

...................................................................17, 18, 19, 21



IN THE

Supreme Court of the United States
October Term, 1971 

No. 69-5001

L ym an  A. M o ore ,

vs.
Petitioner,

P e o pl e  of th e  State  o f  I l l in o is ,
Respondent.

Motion for Leave to File Brief Amici Curiae and 
Statement of Interest of the Amici.

Movants N.A.A.C.P. Legal Defense and Educational 
Fund, Inc., and National Office for the Rights of the In­
digent respectfully move the Court for permission to file 
the attached brief amici curiae, for the following rea­
sons. The reasons assigned also disclose the interest of 
the amici.

(1) Movant N.A.A.C.P. Legal Defense and Educa­
tional Fund, Inc., is a non-profit corporation, incorpo­
rated under the laws of the State of New York in 1939. 
It was formed to assist Negroes to secure their consti­
tutional rights by the prosecution of lawsuits. Its charter 
declares that its purposes include rendering legal aid 
gratuitously to Negroes suffering injustice by reason of 
race who are unable, on account of poverty to employ 
legal counsel on their own behalf. The charter was ap­
proved by a New York court, authorizing the organiza­
tion to serve as a legal aid society. The N.A.A.C.P. Le­



— 2-

gal Defense and Educational Fund, Inc. (L D F), is in­
dependent of other organizations and is supported by 
contributions from the public. For many years its at­
torneys have represented parties in this Court and the 
lower courts, and it has participated as amicus curiae 
in this Court and other courts, in matters resulting in de­
cisions that have had a profoundly reformative effect 
upon the administration of criminal justice.

(2) A central purpose of the Fund is the legal eradi­
cation of practices in our society that bear with dis­
criminatory harshness upon Negroes and upon the poor, 
deprived, and friendless, who too often are Negroes. In 
order more effectively to achieve this purpose, the LDF 
in 1965 established as a separate corporation movant 
National Office for the Rights of the Indigent (NORI). 
This organization, whose income is provided initially by 
a grant from the Ford Foundation, has among its objec­
tives the provision of legal representation to the poor 
in individual cases and the presentation to appellate 
courts of arguments for changes and developments in 
legal doctrine which unjustly affect the poor.

(3) LDF attorneys have handled many capital cases 
over the years, particularly matters involving Negro de­
fendants charged with capital offenses in the Southern 
States. This experience has led us to the view, con­
firmed by the studies of scholars1 and more recently

XE.g., President’s Commission on Law Enforcement and Ad­
ministration of Justice, Report, The Challenge of Crime in a Free 
Society 143 (1967); United Nations, Department of Economic and 
Social Affairs, Capital Punishment—Developments 1961-1965 
(ST/SOA/SD/IO) 20 (1967); Weihofen, the Urge to Punish 
164-65 (1956); Hartung, Trends in the Use of Capital Punish­
ment, 284 Annals 8, 14-17 (1952); Wolfgang, Kelly & Nolde, 
Comparison of the Executed and the Commuted Among Admis­
sions to Death Row, 53 J. Crim. L., Crim & Pol. Sci. 301 
(1962).



— 3—

by empirical research undertaken under LDF auspices,2 
that the death penalty is administered in the United 
States in a fashion that makes racial minorities, the de­
prived and downtrodden, the peculiar objects of capital 
charges, capital convictions, and sentences of death. 
Our experience has convinced us that this and other in­
justices are referable in part to certain common prac­
tices in capital trial procedure, which depart alike from 
the standards of an enlightened administration of crimi­
nal justice and from the minimum requirements of 
fundamental fairness fixed by the Constitution of the 
United States for proceedings by which human life may 
be taken. Finally, we have come to appreciate that in 
the uniquely stressful and often contradictory litigation 
pressures of capital trials and direct appeals, ordinari­
ly handled by counsel appointed for indigent defend­
ants, many circumstances and conflicts may impede the 
presentation of attacks on these unfair and unconstitu­
tional practices; and that in the post-appeal period, 
such attacks are grievously handicapped by the ubiqui­
tous circumstances that the inmates of the death rows 
of this Nation are as a class impecunious, mentally de­
ficient, unrepresented and therefore legally helpless in

2A study of the effect of racial factors upon capital sentencing 
for rape in the Southern States (which virtually alone retain the 
death penalty for that crime) was undertaken in 1965, with LDF 
financial support, by Dr. Marvin E. Wolfgang and Professor An­
thony G. Amsterdam. The nature of the study is described in the 
memorandum appended to the report of Moorer v. South Caro­
lina, 368 F.2d. 458 (4th Cir. 1966), and in Matter of Sims and 
Abrams, 5th Cir. Nos. 24271-2, decided August 10, 1967. Its 
results, so far analyzed, show persuasively that the death penalty 
is discriminatorily applied against Negroes at least in rape cases. 
One aspect of these results, limited to the State of Arkansas, was 
presented in the record in Maxwell v. Bishop, 385 U.S. 650 
(1967).



4

the face of death.3 Common state practice makes no 
provision for the furnishing of legal counsel to these 
men.

(4) For these reasons, amici LDF and NORI have 
undertaken a major campaign of litigation attacking on 
federal constitutional grounds several of the most 
vicious common practices in the administration of capi­
tal criminal procedure, and assailing the death penalty 
itself as a cruel and unusual punishment. The status 
of that litigation is described more fully elsewhere. Suf­
fice it to say here that we represent or are assisting 
attorneys who represent, more than half of the 400 
men on death row in the United States; and the lives 
of virtually all of these men will be affected by the 
Court’s decision in this and the other cases now before 
the Court on the death penalty.

(5) Counsel for the petitioner in Moore has con­
sented to the filing of a brief amici curiae by the

3Recently, in connection with Adderly v. Wainwright, 272 F. 
Supp. 530 (M.D. Fla. 1967) LDF lawyers were authorize by 
court order to interview all of the condemned men on death row 
in Florida. The findings of these court-ordered interviews, sub­
sequently reported by counsel to the court, indicated that of 34 
men interviewed whose direct appeals had been concluded, 
17 were without legal representation (except for purposes of 
the Adderly suit itself, a class action having as one of its 
purposes of declare their constitutional right to appointment 
of counsel); 11 others were represented by volunteer lawyers 
associated with the LDF or ACLU; and in the case of 2 
more, the status of legal representation was unascertained. All 
34 men (and all other men interviewed on the row) were in­
digent) the mean intelligence level for the death row population 
(even as measured by a nonverbal test which substantially over­
rated mental ability in matters requiring literacy, such as the in­
stitution or maintenance of legal proceedings) were below nor­
mal; unrepresented men were more mentally retarded than the few 
who were represented; most of the condemned men were, by oc­
cupation, unskilled, farm or industrial labors; and the mean 
number of years of schooling for the group was a little over 
eight years (which does not necessarily indicate eight grades 
completed).



■5—

N.A.A.C.P. Legal Defense and Educational Fund, Inc., 
and the National Office for the Rights of the Indigent, 
as has counsel for the respondent State of Illinois.

Wherefore, movants pray that the attached brief 
amici curiae be permitted to be filed with the Court.

Respectfully submitted,

J ack G r ee n b e r g ,
Ja m es  M. N a brit , III,
J ack H im m e l s t e in ,
E lain e  R. J o n es ,
M ary L ynn  W a lk er ,

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

A n th o n y  G. A m sterd a m , 
School of Law,
Stanford University,
Stanford, California,

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

Of Counsel:
R ichard  J. St o n e ,
Stuart  P. T o bism an .





IN THE

Supreme Court of the United States
October Term, 1971 

No. 69-5001

L ym an  A. M o ore ,

vs.
Petitioner,

P e o p l e  of th e  State  o f  I l l in o is ,
Respondent.

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

Statement of Facts.
Petitioner was found guilty of murder before the 

Circuit Court, Cook County, State of Illinois, and sen­
tenced to death. The conviction and sentence were up­
held by the Supreme Court of Illinois in People v. 
Moore, 42 U1.2d 73, 246 N.E.2d 299 (1969). A peti­
tion for -a writ of certiorari was filed with the Court on 
June 23, 1969, supplemented on July 20, 1970, and 
granted on June 28, 1971. There are three questions 
before the Court, only one of which is discussed in this 
brief, namely, eight veniremen were removed for cause 
when they voiced general objections to capital punish­
ment or stated that they had religious or conscientious 
scruples against the death penalty in a proper case; 
in the light of Witherspoon v. Illinois, 391 U.S. 510 
(1968), may a state court of review affirm a death 
sentence,



8-

(a) on the ground that the tenor of voir dire ex­
amination was unlike that of Witherspoon?

(b) on the ground that the prosecution had suf­
ficient peremptory challenges to have eliminated 
those prospective jurors eligible to serve under 
Witherspoon?

Summary of Argument.
We urge the Court to reverse the imposition of the 

death sentence in this case on the grounds that the jury 
selection process resulted in the unconstitutional exclu­
sion of veniremen who voiced general objections to the 
death penalty. The exclusion of these veniremen was 
contrary to the Court’s decision in Witherspoon v. Illi­
nois, 391 U.S. 510 (1968). We further urge the Court 
to amplify its Witherspoon decision to end, once and 
for all, continued efforts by some lower courts to im­
properly avoid the impact of Witherspoon by focusing 
on irrelevant distinctions such as those drawn by the 
court below in this case.



ARGUMENT.

— 9—

1.
The Death Penalty Cannot Be Carried Ont in This 

Case Because Veniremen Who Voiced Mere Gen­
eral Objections to the Death Penalty Were Removed 
From the Jury Which Imposed the Sentence.

In the case before the Court, twelve veniremen were 
removed from the jury panel because of reservations 
they had concerning imposition of the death penalty. 
An excerpt from the voir dire covering the questioning 
of each of the excluded veniremen is set forth in the 
Appendix attached hereto. The only relevent question 
is whether any of these veniremen were removed con­
trary to the standards set forth in Witherspoon.

In Witherspoon this Court held that:
“ [A] sentence of death cannot be carried out if 
the jury that imposed or recommended it was 
chosen by excluding veniremen for cause simply 
because they voiced general objections to the death 
penalty or expressed conscientious or religious 
scruples against its infliction.” Witherspoon v. Illi­
nois, supra at 522.

A narrow reading of Witherspoon makes it clear that 
any test used to determine whether a venireman has 
been properly excluded from a capital case must at 
least be consistent with the Court’s statement that its 
decision had no bearing on a State’s power to exclude 
veniremen who make it

“. . . unmistakably clear (1) that they would 
automatically vote against the imposition of capi­
tal punishment without regard to any evidence 
that might be developed at the trial of the case 
before them, or (2) that their attitude toward the



1 0 -

death penalty would prevent them from making 
an impartial decision as to the defendant’s guilt.” 
Witherspoon v. Illinois, supra at 522-23 n. 21.

Thus, at a minimum, Witherspoon says that a venire­
man may not be excluded for cause because of his 
views on the death penalty unless: (1) his views are 
unmistakably clear, and (2) his views would auto­
matically compel him to vote against imposition of the 
death penalty or would prevent him from making the 
required impartial determination of guilt or innocence.

It is also clear that Witherspoon will countenance 
no exclusions made on any broader basis than that 
stated by the Court in footnote 21. Before stating its 
minimum requirements for exclusion, the Court cau­
tioned in the very same footnote that:

“ [i] f the voir dire testimony in a given case in­
dicates that veniremen were excluded on any 
broader basis than this, the death sentence cannot 
be carried out even if applicable statutory or case 
law in the relevent jurisdiction would appear to 
support only a narrower ground of exclusion.” 
(Emphasis added.)

Lastly, it is clear that in deciding whether a venire­
man has been properly excluded, any ambiguity which 
casts doubt upon whether he has made his views un­
mistakably clear must be resolved against exclusion. 
Judge Simpson, writing for a unanimous court reversing 
for violation of Witherspoon in Marion v. Beto, 434 F. 
2d 29, 31 (5th Cir. 1970), noted:

“The Supreme Court further implied that doubts 
concerning the ability of a venireman to subordi­



— 11

nate his personal views to his oath as a juror to 
obey the law of the state should be resolved against 
exclusion, stating in footnote 9, on page 515-516 
of the opinion, 88 S. Ct. on page 1774:

“ ‘Unless a venireman states unambiguously 
that he would automatically vote against the 
imposition of capital punishment no matter what 
the trial might reveal, it simply cannot be as­
sumed that this is his position.’ (Emphasis 
added.) [Footnote omitted. ] ”

It is clear that each of the excluded veniremen were 
removed from the jury in this case solely because they 
voiced “general objections to the death penalty or ex­
pressed conscientious or religious scruples against its 
inflictions”. Veniremen Byrne, Lorens, Kristock, Petty, 
Threatt, Gorski and Hohnwald were excluded merely 
because they said that they did not believe in capital 
punishment or that they had religious or conscientious 
scruples against infliction of the death penalty in a 
proper case. In Witherspoon, this Court specifically con­
sidered “proper case” exclusions and declared:

“ [I] t cannot be assumed that a juror who de­
scribed himself as having ‘conscientious or re­
ligious scruples’ against the infliction of the death 
penalty or against its infliction ‘in a proper case’ 
[Citations ] thereby affirms that he could never vote 
in favor of it or that he would not consider doing so 
in the case before him. [Citations] Obviously 
many jurors ‘could, notwithstanding their consci­
entious scruples [against capital punishment], re­
turn . . . [a] verdict [of death] and . . . make



— 12—

their scruples subservient to their duty as jurors.’ 
[Citations] Yet such jurors have frequently been 
deemed unfit to serve in a capital case. [Citation] 
“The critical question, of course, is not how the 
phrases employed in this area have been con­
strued by courts and commentators. What matters 
is how they might be understood— or misunder­
stood— by -prospective jurors. Any ‘layman . . . 
[might] say he has scruples if he is somewhat un­
happy about death sentences . . . [Thus] a general 
question as to the presence of . . . reservations [or 
scruples] is far from the inquiry which separates 
those who would never vote for the ultimate pen­
alty from those who would reserve it for the direst 
cases.’ Unless a venireman states unambiguously 
that he would automatically vote against the im­
position of capital punishment no matter what the 
trial might reveal, it simply cannot be assumed 
that this is his position.” Witherspoon v. Illinois, 
supra at 515-16 n. 9.

The inherent ambiguity in almost any question that 
asks whether a venireman could return the death pen­
alty in a “proper case” is that the venireman might 
easily assume that the law classifies certain kinds of 
cases as “proper.” The only way that a transcript can 
indicate that the venireman did not so interpret the 
question is by showing a clear explanation to him that 
the jury, in its sole discretion, decides what is a proper 
case for imposition of the death penalty. Nothing in 
the record indicates that such an explanation was given 
to the veniremen excluded in this case.

Veniremen Burns, Peterson and Nakata were ap­
parently excluded merely because they stated “strong



1 3 -

feelings” against capital punishment.1 * 3 Venireman Larsen 
did not even go that far. The trial judge and the prose­
cutor did all his talking on the record for him. And 
even Venireman Webber’s statement that he “wouldn’t 
be able to sign a death penalty” falls far short of the 
“unmistakably clear” test of Witherspoon. This Court’s 
opinions in Witherspoon and its progeny can leave no 
doubt that these exclusions were in violation of the 
Constitution.

In Boulden v. Holman, 394 U.S. 478 (1968), this 
Court specifically considered whether veniremen might 
be excluded “merely by virtue of their statements that 
they did not ‘believe in’ capital punishment.” Id. at 
483. That opinion makes it abundantly clear that ex­
clusion on any such “broader basis” will not pass mus­
ter. In Boulder, pains were taken to spell out what 
should have been obvious:

1 Statements made by Veniremen Nakata also suggest that he 
may have had some reservations about giving the death penalty 
in the case before the court, and these reservations may have 
been the basis for his exclusion. If this was the basis, his exclu­
sion too was in violation of Witherspoon:

“Just as veniremen cannot be excluded for cause on the 
ground that they voiced general objections to the death 
penalty or expressed conscientious or religious scruples against 
its infliction, so too they cannot be excluded for cause simply 
because they indicate that there are some kinds of cases 
in which they would refuse to recommend capital punish­
ment. And a prospective juror cannot be expected to say 
in advance of trial whether he would in fact vote for the 
extreme penalty in the case before him. The most that can be 
demanded of a venireman in this regard is that he be willing 
to consider all of the penalties provided by state law, and 
that he not be irrevocably committed, before the trial has 
begun, to vote against the penalty of death regardless of 
the facts and circumstances that might emerge in the course 
of the proceedings. If the voir dire testimony in a given
case indicates that veniremen were excluded on any broad­
er basis than this, the death sentence cannot be carried out 
even if applicable statutory or case law in the relevant 
jurisdiction would appear to support only a narrow ground 
of exclusion.” Witherspoon v. Illinois, supra, at 522 n. 21.



— 14—

“ [I]t is entirely possible that a person who has 
‘a fixed opinion against’ or who does not ‘believe 
in’ capital punishment might nevertheless be per­
fectly able as a juror to abide by existing law— 
to follow conscientiously the instructions of a trial 
judge and to consider fairly the imposition of the 
death sentence in a particular case.” Id. at 483-84.

In Maxwell v. Bishop, 398 U.S. 262 (1970), this 
Court specifically considered whether a venireman could 
be removed because he entertained religious or conscien­
tious scruples against imposing the death penalty. Once 
again, the patent unconstitutionality of such exclusions 
was declared:

“ ‘[A] sentence of death cannot be carried out if 
the jury that imposed or recommended it was 
chosen by excluding veniremen for cause simply 
because they voiced general objections to the death 
penalty or expressed conscientious or religious 
scruples against its infliction.’ 391 U. S., at 522. 
We reaffirmed that doctrine in Boulden v. Hol­
man, 394 U. S. 478. As we there observed, it can­
not be supposed that once such people take their 
oaths as jurors they will be unable ‘to follow con­
scientiously the instructions of a trial judge and 
to consider fairly the imposition of the death sen­
tence in a particular case.’ 394 U. S., at 484. 
‘Unless a  venireman states unambiguously that he 
would automatically vote against the imposition 
of capital punishment no matter what the trial 
might reveal, it simply cannot be assumed that that 
is his position.’ Witherspoon v. Illinois, supra, at 
516 n. 9.



— 15—

“The most that can be demanded of a venire­
man in this regard is that he be willing to con­
sider all of the penalties provided by state law, 
and that he not be irrevocably committed, be­
fore the trial has begun, to vote against the 
penalty of death regardless of the facts and cir­
cumstances that might emerge in the course of 
the proceedings. If the voir dire testimony in a 
given case indicates that veniremen were exclud­
ed on any broader basis than this, the death 
sentence cannot be carried out . . ” Id. at
265-66.

Lastly, the record in this case fails to show with 
respect to each of the Witherspoon criteria that the 
trial judge made any effort to specifically instruct any 
excluded venireman that the law required a juror to 
“subordinate his personal views to what he . . . [per­
ceives] to be his duty to abide by his oath as a juror and 
to obey the law of the State,” Witherspoon v. Illinois, 
supra at 514-15 n. 7. Thus, it simply cannot be said that 
any of the excluded veniremen made their views “unmis­
takably clear.” As this Court noted in Witherspoon:

“Obviously many jurors ‘could, notwithstanding 
their conscientious scruples [against capital pun­
ishment], return . . . [a] verdict [of death] and 
. . . make their scruples subservient to their duty 
as jurors.’ ” Witherspoon v. Illinois, supra at 516 
n. 9.

Hence, because the trial judge failed to instruct ex­
cluded veniremen as to their duty to subordinate their 
own personal views to the commands of the law as ex­
plained to them by the court, and because the trial 
judge failed to clearly determine that the excluded



- 1 6 -

veniremen could not subordinate their personal views 
and “abide by the law,” each of the veniremen ex­
cluded in this case were removed in violation of 
this Court’s pronouncement in Witherspoon and its 
progeny.

Nevertheless, in this case the Supreme Court of Illi­
nois, relying on its earlier decision in People v. Speck, 
41 111. 2d 177, 242 N.E.2d 208 (1968), upheld 
the death sentence on the grounds that “ [t]he tenor 
of the entire examination . . . was unlike Witherspoon 
where the trial court promply removed all who ex­
pressed the slightest qualms about capital punishment”, 
People v. Moore, supra at 82; 246 N.E.2d at 305 
and because “ [i]t is also clear in this case the State 
had sufficient peremptory challenges to have eliminated 
those prospective jurors eligible to serve under Wither­
spoon”. Id, at 84; 246 N.E.2d at 306. Neither factor 
referred to by the lower court justified upholding the 
death sentence in the face of Witherspoon.

II.
The Question of Whether the Tenor of the Voir Dire 

in This Case Differed From That in Witherspoon 
Is Irrelevant to the Issue of Whether Veniremen 
Were Improperly Excluded.

The Illinois Supreme Court held that the death sen­
tence could be imposed in this case because Wither­
spoon only applied to cases where veniremen were 
hastily and perfunctorily excused for voicing the slight­
est qualms regarding the death penalty. People v. 
Moore, supra at 83-84; 246 N.E.2d at 305-06. Led by 
the Illinois Supreme Court, a number of lower courts 
have likewise professed to recognize Witherspoon’s tests, 
but have proceeded to avoid applying them.

The leading case is People v. Speck, supra. In that 
case the Illinois Supreme Court conceded that as



17

many as 50 veniremen had been excused “because they 
stated that they had conscientious scruples concerning 
the death penalty without stating that they would never 
impose or consider imposing it.” Id. at 213; 242 N.E.2d 
at 227. Although clearly in violation of Witherspoon’s 
requirements, the Illinois Court upheld the imposition 
on the sentence on the grounds that

“. . . the tone of the proceedings here indicate a 
sincere desire on the part of the prosecutor and 
the court (although perhaps not shared by the de­
fense) to determine the jurors’ qualifications ac­
cording to the standard later held acceptable in 
Witherspoon.” Id. at 209; 242 N.E.2d at 225.

The emphasis in Speck and later cases on the “tone 
of the proceedings” disregards the language and in­
tent of Witherspoon. In Speck, Witherspoon, as well 
as in the present case, veniremen were excused for voic­
ing mere general objections to the death penalty. In 
Witherspoon this Court said:

“The most that can be demanded of a venireman 
in this regard is that he be willing to consider 
all of the penalties provided by state law, and 
that he not be irrevocably committed, before the 
trial has begun, to vote against the penalty of 
death regardless of the facts and circumstances 
that might emerge in the course of the proceed­
ings. If the voir dire testimony in a given case 
indicates that veniremen were excluded on any 
broader basis than this, the death sentence cannot 
be carried out. . . .” Witherspoon v. Illinois, supra 
at 516 n. 9.

On June 28, 1971, this Court reversed the death sen­
tence in Speck. Just as the death sentences in Wither­



— 18—

spoon and Speck have been reversed, so too must the 
death sentence in this case be reversed.

III.
The Availability of Peremptory Challenges to the State 

Does Not Render Harmless the Improper Exclusion 
of Veniremen Under Witherspoon.

The Illinois Supreme Court also upheld imposition 
of the death sentence in this case on the grounds that 
the state had sufficient peremptory challenges to have 
eliminated those prospective jurors improperly excluded 
under Witherspoon,2 This argument was first suggested 
in State v. Mathis, 52 N.J. 238, 245 A.2d 20 (1968),
reversed as to judgment imposing death sentence, .........
U.S...........  (1971), as a “relevant makeweight:”

“And we think it correct to add that if the 
prosecution did not use all its peremptory chal­
lenges, that fact may be a relevant makeweight, 
for it is not unreasonale to assume that the re­
maining challenges would have been used, had the 
trial court ruled against the State on its objection 
to a specific juror. Here the State used only 7 of 
its 12 peremptory challenges.” Id. at 251, 245 A. 
2d at 27.

This argument would better be characterized as an ir­
relevant makeweight. It is purely conjectural whether 
the State would have used its peremptory challenges to 
exclude the scrupled veniremen. Witherspoon nowhere 
mentions the effect of the existence of remaining prose­
cution peremptory challenges. When a right as vital as a

2The record disputes this finding. The state used 16 of its 20 
peremptory challenges. Had the four remaining challenges been 
used, there would still have been at least four and probably eight 
improperly excused veniremen. (See Trial Record pp. 146, 162, 
242, 269, 277, 281, 303, 322, 329, 342, 346 and 350.)



- 1 9 -

defendant’s right to have a jury which is not unfairly 
“stacked” to condemn him to death is at issue, con­
jectural suggestions about whether a prosecutor might 
have used his peremptory challenges to remove a 
scrupled venireman should not be permitted to over­
ride a clearly justifiable claim that some veniremen 
were excluded for cause in violation of Witherspoon.

This was the decision of the California Supreme 
Court in In Re Anderson, 69 Cal.2d 613, 619-20 
(1968), wherein Justice Burke dealt with the “remain­
ing peremptories” argument as follows:

“The Attorney General also contends that any 
error under Witherspoon in excusing for cause 
prospective jurors opposed to the death penalty is 
nonprejudicial where, as here, the prosecution had 
sufficient peremptory challenges to remove all such 
jurors. The Attorney General asserts that since the 
chances of a jury’s being able to determine the 
penalty impartially are diminished if the jury con­
tains even one person who is hostile to, or has 
reservations concerning the death penalty, it may 
be assumed that, if the challenges for cause had 
not been available, the prosecutors would have ex­
cluded the veniremen in question by way of per­
emptory challenge; that a prosecutor may constitu­
tionally exercise his peremptory challenges in a 
particular case for any purpose he deems proper 
(Swain v. Alabama, 380 U.S. 202, 221-222); and 
that therefore any error in excluding for cause the 
veniremen in question did not affect the composi­
tion of the juries at petitioners’ trials and is not a 
ground for vacating the death sentences.
“We do not agree. Witherspoon did not discuss the 
effect of the existence of remaining peremptory



- 2 0 -

challenges of the prosecution, but the broad lan­
guage of the opinion establishes without doubt that 
in no case can a defendant be put to death where 
a venireman was excused for cause solely on the 
ground he was conscientiously opposed to the 
death penalty. According to our understanding of 
Witherspoon, reversal is automatically required if 
a venireman was improperly excused for cause on 
the basis of his opposition to the death penalty.
It may be noted that in Witherspoon the defense 
had three remaining peremptory challenges when 
it accepted the jury, but that fact was not viewed 
as showing that the jurors who were impaneled 
were impartial and that therefore no harm re­
sulted from improperly excusing for cause some 
prospective jurors. Furthermore, in arguing that 
it may be assumed that the prosecutor would 
have used his peremptory challenges to remove 
veniremen who under Witherspoon were improperly 
excused for cause, the Attorney General bases 
his argument on a concept of an impartial jury 
that is in conflict with the majority opinion in ' 
Witherspoon. Under the view of the Witherspoon 
majority a jury from which all prospective jurors 
opposed the death penalty have been excluded is 
not an impartial jury but rather constitutes a ‘hang­
ing jury,’ one that is ‘uncommonly willing to con­
demn a man to die,’ and one that ‘cannot speak 
for the community’ but ‘can speak only for a 
distinct and dwindling minority.’ We cannot en­
gage in conjecture that the prosecutor would have 
used his peremptory challenges to excuse all such 
jurors.”



Conclusion.
As this Court has repeatedly recognized, the selec­

tion of a jury in any case, and particularly in a capital 
case, is of critical importance. Cases like Speck and 
Mathis indicate that lower courts have resisted the 
thoroughgoing application of Witherspoon which this 
Court intended. The most effective way to achieve such 
application is for this Court to specifically state that the 
improper exclusion of even one juror under Wither­
spoon will result in reversal of the death sentence.

There is no room for a de minimus doctrine regarding 
selection of a jury in a capital case. Every capital de­
fendant should be entitled to a jury from which no 
prospective jurors were excluded for cause as a result 
of their general objections to the death penalty.

Respectfully submitted,
J ack G r ee n b e r g ,
J am es  M. N a brit , III,
J ack H im m e l s t e in ,
E lain e  R. J o n es ,
M ary L ynn  W a lk er ,

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

A n th o n y  G. A m sterd a m , 
School of Law,
Stanford University,
Stanford, California,

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

Of Counsel:
R ichard  J. St o n e ,
Stuart  P. T o bism an .

- 2 1 -



APPENDIX.
Excerpts From the Record on Voir Dire Examination.
Page of
Record
57 Prospective jurors sworn to answer questions.
116 MALACHY BURNS, prospective juror:
117 Q. I see. Do you know of any reason why you 

cannot be a fair and impartial juror in this case?
A. I have a strong feeling against capital 

punishment, Judge.
Q. I see. And do you think that that feeling 

is such as would influence your judgment in this 
case?

A. It very well might.
The Court: What about it gentlemen? Mr. 

Horka, Mr. Mack.

118 Mr. Mack: Well, Judge,—
The Court: You may be excused.
Mr. Horka: Judge, he said it might or could. 

He hasn’t made up his mind yet.
The Court: You may be excused. Step down, 

please.
Mr. Mack: For cause?
The Court: For cause, yes.

118 ESTHER BYRNE, prospective juror:
122 Q. Do you know of any reason why you cannot 

be a fair and impartial juror in this case?
A. Well, ordinarily enough, I take the same 

stand as Mr. Byrne. T don’t believe in capital 
punishment.

Q. In other words, even if we have a law in 
this State to that effect, you wouldn’t believe in it. 
anyway?



Page of 
Record

■2-

A. No, I don’t, definitely not.
The Court: Very well. That’s your prerogative.
You’re excused for cause.

146 PAUL LARSEN, prospective juror:
147 Q. Do you know of any reason why you can­

not be a fair and impartial juror in this case?
A. Well, I don’t know whether I understand 

capital punishment. Is it death for death, an eye 
for an eye, a tooth for a tooth?

Q. Listen, in a murder case, the jury has a
148 duty to determine, first, whether the defendant 

is guilty or not guilty. You will be given multiple 
verdicts in this case. If you decide he is not guilty, 
that ends the case. Do you understand?

A. Yes.
Q. If you decide he is guilty of murder, then 

you must next determine whether or not you wish 
to return a verdict of death. If you so decide on 
a verdict of death, you will so indicate in your 
verdict. If you have determined the guilt of the 
defendant and decide against a verdict of death, 
you will return a verdict of guilty and the court 
will fix the term of punishment.

Do you understand that?
A. The court, the judge will?
Q. That’s right, that’s right. The law in this 

State, in a murder case, allows multiple verdicts. 
The first thing you decide is whether he is guilty 
or not. If you decide he is not guilty, that ends it. 
The jury after finding him guilty, will have to de­
cide whether or not they want to inflict the death 
penalty. If you decide that you don’t want to in-



— 3—

Page of
Record

flict the death penalty, you will say so and then 
the court will fix his punishment but it shall

149 not be death. The court cannot fix the death 
penalty unless the jury, having been asked for 
it, decides that.

Do you understand that?
A. In other words, when we go back to de­

cide the verdict, we can either vote against the 
death penalty or for it?

Q. Oh, yes. The first thing that you have to 
determine is—

A. And what classifies that, the majority or 
they all have to vote the same way?

Q. No majority verdicts on anything in this 
State. It has to be the unanimous verdict of the 
twelve people on each one of those things, first, 
guilt or innocence. After that determination, if it’s 
guilt then you go ahead and decide whether you 
want to inflict the death penalty or not.

A. Well, sir, I think I have to commit myself. 
I believe in the Bible, “Thou shalt not kill.”

Q. The Bible has a lot of things in it.
A. That’s one of the ten commandments.
Q. And I haven’t seen any responsible religious 

official who says the Bible admonishes a jury not 
to follow the law.

150 A. That might be.
Q. What’s that?
A. That might be.
The Court: I thought that’s the highest thing,

the law of God and then the law of man. But if 
that’s your position, then, we will excuse you.

(Prospective juror excused.)



-4-

Page of
Record

LOUIS LORENS, prospective juror:
151 Q. Do you know of any reason why you cannot
152 be a fair and impartial juror in this case?

A. I do not believe in capital punishment.
The Court: Well, step down.
(Prospective juror excused.)

210 KATHERINE KRISTOCK, prospective juror:
212 Q. Do you know of any reason why you cannot 

be a fair and impartial juror in this case?
A. No.
Q. Do you have any religious or conscientious 

scruples against the infliction of the death penalty 
in a proper case?

A. I ’m afraid I do. I don’t believe in capital 
punishment.

The Court: Step down, please.
(Prospective juror excused.)

221 ISAAC NAKATA, prospective juror:
222 Q. Do you know of any reason why you cannot 

be a fair and impartial juror in this case?
A. No.
Q. Do you have any religious or conscientious 

scruples against the infliction of the death penalty 
in a proper case?

A. I have a very strong prejudice against the 
use of capital punishment.

Q. I see.
A. Except in very limited area.
O. Well, the law of this State prescribes 

capital punishment in certain types of cases,
223 and murder is one of them. Now, as I stated 

before, the jury will have to determine whether



— 5—
Page of 
Record

the defendant is guilty or not guilty of the charge 
that has been made against him.

A. Yes, sir.
Q. Then the jury will also have to consider 

whether it’s a proper case for the death penalty. 
Now, do you believe that the State could present 
a case proper for the death penalty?

A. Yes, sir.

228 A. That’s the reason why I would like to give 
my reasoning right now, before I perjure myself 
about that personally, because I can’t go all the 
way on capital punishment.

Q You can’t go all the way?
A. No.
Q. Where do you sop?
A. It depends on the kind of crime it is and 

the evidence presented for it.
Q. Oh, that’s all we are asking you to do.
A. Well, it seems to me, from the statements 

made by the prosecuting attorney, that he is going 
to ask for the death penalty, so, in view of that 
fact, I think I should disqualify myself.

Q. If he asks for it, it doesn’t mean that you 
have to give it to him.

A. Of course, that’s true, too. But, at the same 
time, though, I mean, I wouldn’t be applying the 
law, as he stated it, you see, upon his presentation 
of the evidence, and all that, so I don’t think I 
would be fair to the court or to the rest of the 
jurors by my being on the jury.

The Court: Step down, then if you don’t think



6—

Page of
Record
229 you can be fair. I’m not going to ask you to try 

any further. The only question is, we want you 
to be fair and impartial.

(Prospective juror excused.)
248 MARIAN PETERSON, prospective juror:
250 Q. Do you know of any reason why you cannot 

be a fair and impartial juror in this case?
A. No.
Q. Do you have any religious or conscien­

tious scruples against the infliction of the death 
penalty in a proper case?

A. Yes, I have very strong convictions against 
capital punishment.

The Court: Step down, please.
(Prospective juror excused.)

NEBRASKA PETTY, prospective juror:
252 Q. Do you know of any reason why you can­

not be a fair and impartial juror in this case?
A. No, sir.
Q. Do you have any religious or conscientious 

scruples against the infliction of a death penalty 
in a proper case?

A. I do.
The Court: Step down.
(Prospective juror excused.)

308 JACQUELINE B. THREATT, prospective juror:
309 Q. Do you know of any reason why you cannot 

be a fair and impartial juror in this case?
A. No.
Q. Do you have any religious or conscientious 

scruples against the infliction of the death penalty 
in a proper case?



Page of
Record

A. Yes, 1 do.
Q. You do: What do you mean?
A. I don’t believe in capital punishment.
Q. Say that again.
A. I feel very strongly against capital punish­

ment.
The Court: Step down, please. Call another juror.

325 ALBERT WEBBER, prospective juror:
Q. The gentleman on the end, your name, sir?
A. Albert Webber. Your Honor, I wouldn’t be 

able to sign a death penalty.
Q. You wouldn’t?
A. No, sir.
The Court: All right. Step down, Mr. Webber.

350 MARY GORSKI, prospective juror:
352 Q. Do you know of any reason why you cannot 

be a fair and impartial juror in this case?
A. No, sir.
Q. Do you have any religious or conscientious 

scruples against the infliction of the death penalty 
in a proper case?

A. Yes, I do, your Honor.
The Court: All right, step down.

365 ANNA L. HOHNWALD, prospective juror:
366 Q. Do you know of any reason why you cannot 

be a  fair and impartial juror in this case?
a. No, sir.
Q. Do you have any religious or conscientious 

scruples against the infliction of the death penalty 
in a proper case?

A. Yes, I do.
Q. Step down, please.



Service of the within and receipt of
thereof is hereby admitted this................
of September A.D. 1971.

a copy 
......day