Sims v Eyman Brief Amicus Curiae

    In  the

Gkmrt of %  Unit zb States
October Term, 1968 

No. 1528 Misc.

Robert Lee Sims,

—v.—
Petitioner,

F rank A. Eyman, Superintendent of Arizona State Penitentiary,
Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES 
COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF AMICUS CURIAE ON BEHALF OF ROBERT PAGE ANDERSON, 
FREDERICK SATERFIELD, WALTER C. HINES, DORMAN FRED 

TALBOT, GERALD ALBERT BEIVELMAN

Jack Greenberg
Michael Meltsner
Melvyn Zarr
Jack H immelstein

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

A nthony G. A msterdam 
3400 Chestnut Street 
Philadelphia, Pennsylvania 19104

Jerome B. F alk, Jr.
650 California Street
San Francisco, California 94108

E mil Roy E isenhardt 
333 Pine Street 
San Francisco, California

Harry J. Kreamer
100 Bush Street, 26th Floor 
San Francisco, California

Gary D. Berger
One Kearny Street 
San Francisco, California

Paul N. Halvonik 
503 Market Street 
San Francisco, California

Charles S. Ralston
1095 Market Street, Suite 418 
San Francisco, California

Demetrios P. A gretelis 
2020 Milvia Street 
Berkeley, California 94704

P atrick J. Sampson 
2050 Bonita Avenue 
La Verne, California 91750

W. Reece Bader
405 Montgomery Street 
San Francisco, California

Attorneys for Amicus Curiae

Garfield Stewart 
Of Counsel



In t h e

§>upnmte Gkwrt nf %  llmfri* States
O ctober T erm , 1968 

No. 1528 Misc.

R obert L ee S im s , 

—v.—
Petitioner,

F rank  A. E y m a n , Superintendent of 
Arizona State Penitentiary,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES 
COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF AMICUS CURIAE ON BEHALF OF ROBERT PAGE 
ANDERSON, FREDERICK SATERFIELD, WALTER C. HINES, 
DORMAN FRED TALBOT, GERALD ALBERT BEIYELMAN

Interest of the Amici

Amici are five men sentenced to death by California 
juries. Their federal constitutional contentions challeng­
ing these death sentences have been rejected by the Supreme 
Court of California in In Re Anderson, 69 Adv. Cal. 638, 
861, 73 Cal. Rptr. 21, 447 P. 2d 117 (1968), and subsequent 
orders; and they have pending in this Court a petition for 
certiorari seeking review of that decision. Anderson et al. 
v. California, No. 1643 Misc.*

* Petitioners Talbot, Hines and Beivelman are now under sen­
tence of death. Their executions have been stayed pending dispo-



2

A major issue raised by amici in the California Supreme 
Court and here is identical to the issue presented in Max­
well v. Bishop, 0. T. 1968, No. 622, and in the present case, 
concerning the constitutionality of capital sentencing that 
is lawless and arbitrary for want of rules or standards to 
guide the life-or-death choice. The amici's lives therefore 
quite literally depend upon the Court’s disposition of these 
several related cases. The present Sims case is of peculiar 
importance to petitioners as a decision of the federal court 
of appeals of the circuit in which they would have to seek 
habeas corpus relief if their petition for certiorari should 
be denied.

Consent to the filing of this brief has been given by coun­
sel for the petitioner and for the respondent. Their letters 
of consent are being lodged with the clerk at the time of 
filing of the brief.

Argument

In his brief and oral argument in the Maxwell case, the 
Attorney General of California has urged the Court not to 
decide the question plainly and squarely presented therein, 
whether arbitrary and lawless capital sentencing violates 
the Due Process Clause of the Fourteenth Amendment. 
That question was presented to the Supreme Court of Cali­
fornia by your amici and decided against them, in favor of 
the Attorney General, by a 4-3 vote, in In re Anderson,

sition of the Anderson petition for certiorari. Petitioners Anderson 
and Saterfield have had their initial sentences of death vacated 
by the California Supreme Court pursuant to Witherspoon v. 
Illinois, 391 U. S. 510 (1968) ; they are now required to undergo 
new death sentencing trials ordered by the California court under 
the procedure which they challenge in Anderson.



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supra. Amici have filed a petition for certiorari in this 
Court, seeking review of the Anderson holding.

It has just come to the attention of amici that the United 
States Court of Appeals for the Ninth Circuit squarely 
decided the identical question in the present matter, Sims 
v. Eyman, 405 F. 2d 439 (9th Cir. 1969), a case affirming 
the denial of federal habeas corpus relief to a death-sen­
tenced Arizona prisoner. Although adverting to the pen­
dency of Maxwell, the Court of Appeals dismissed the issue 
in one paragraph, without perceptible reasoning.

We file the present brief (and are filing similar docu­
ments in Anderson and Maxwell) to make this Court aware 
of the significance of the Sims decision, coming as it does 
in the wake of the California Supreme Court’s Anderson 
holding. There are now eighty-two men and one woman on 
death row in the State of California. Since the disposition 
of the Anderson case by the California Supreme Court, 
executions have been set regularly in that State, which the 
state courts will not stay. Counsel for amici have managed 
to have all of these executions stayed either by the appro­
priate Circuit Justice of this Court, or by the United States 
federal district court, in light of the pendency of Maxwell.

If Maxwell is disposed of without reaching the “ stand­
ards” issue presented therein, and if certiorari is not 
granted on that issue in Anderson and Sims, California’s 
condemned inmates will be exposed to a grave risk of im­
minent execution. This is so because the lower state courts 
(governed by Anderson) and federal courts (governed by 
Sims) are now likely to deem the “ standards” issue fore­
closed. Thus, some large number of persons may be put to 
death before any further decision of this Court can be had



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on the “ standards” question raised alike in their cases, 
Maxwell, Anderson, and Sims.*

The decision below in Sims v. Eyman surely adds to the 
fitness of this Court’s reaching the “ standards” issue im­
mediately. For if death-sentencing without standards is 
federally unconstitutional—or if this Court might, upon due 
consideration, conclude that it is federally unconstitutional 
—we submit it would be altogether inappropriate to defer 
such consideration as is necessary to render that constitu­
tional judgment until after further constitutionally assail­
able executions have taken further humanly unrecaptur- 
able lives. Delay in the disposition of this issue—which is 
now squarely and properly before the Court in Maxwell, 
and presented by dozens of other condemned men in pend­
ing petitions for certiorari—would serve only to authorize 
an infliction of death in the State of California unlike any­
thing this country has witnessed in more than a decade.

CONCLUSION

This Court should decide the question squarely presented 
in the Maxwell case whether arbitrary and lawless capital 
sentencing discretion violates the Constitution of the United 
States, and should dispose of the Anderson and Sims cases 
in light of its Maxwell decision or grant certiorari in the 
latter cases.

* Since California has a split-verdict procedure for the trial of 
capital cases, the other issue presented in Maxwell is not raised 
in the California cases.



5

Respectfully submitted,

J ack  G reenberg
M ichael  M eltsner
M elvyn  Z arr
J ack H im melstein

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

A n th o n y  G. A msterdam 
3400 Chestnut Street 
Philadelphia, Pennsylvania 19104

J erome B. F a lk , J r .
650 California Street
San Francisco, California 94108

E m il  R oy E isenhardt 
333 Pine Street 
San Francisco, California

H arry J. K reamer
100 Bush Street, 26th Floor 
San Francisco, California

G ary D. B erger
One Kearny Street 
San Francisco, California

P aul N. H alvonik 
503 Market Street 
San Francisco, California

Charles S. R alston
1095 Market Street, Suite 418 
San Francisco, California

D emetrios P. A gretelis 
2020 Milvia Street 
Berkeley, California 94704



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P atrick  J. Sampson 
2050 Bonita Avenue 
LaVerne, California 91750

W . R eece B ader
405 Montgomery Street 
San Francisco, California

Attorneys for Amicus Curiae

Garfield S tewart 
Of Counsel



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