MAXWELL v. BISHOP

Transcript: 

Chief Justice Earl Warren: Number 622, William L. Maxwell, petitioner versus O.E. Bishop, Superintendent, Arkansas State Penitentiary.

Mr. Amsterdam.

Argument of Anthony G. Amsterdam

Mr. Anthony G. Amsterdam: Mr. Chief Justice, may it please the Court.

This is a federal habeas corpus proceeding on behalf of William Maxwell.

It condemned challenging the sentence of death imposed upon him by an Arkansas jury.

Unlike the Boykin case which the Court has just heard.

No question is presented here with regard to the ultimate power of the State of Arkansas to use death as a penalty for crime.

Even for the crime of rape of which William Maxwell was convicted.

The Questions presented relate entirely to the procedures by which the death penalty is administered in the State of Arkansas and by which out of the total number of persons convicted of the crime of rape, some are selected to live and others are selected to die.

We have two federal constitutional claims against the Arkansas procedure which for short reference I may term the standards claim and the single verdict claim.

In order to put this into prospective and to show their relationship because I think they are eminently related.

I would like to take a hard look at the outset if I may at the procedure by which Arkansas does determine case by case and individual cases whether persons convicted of rape shall live or shall go to their death in the electric chair.

Now under Arkansas law, there is one statutory provision which provides that the punishment for the crime of rape is death.

In other statute, in effect since 1915 provides that in any case in which the punishment is death by law, the jury may return instead a verdict of imprisonment for life in state penitentiary.

The effect of these two statutes therefore is to create an authorization.

The availability of returning the death penalty in a broad range of cases but to require the death penalty and not thereby both supposing that selection is possible among the total number of persons convicted of rape and requiring that selection must in fact be made among the total number of persons convicted of rape of some smaller number who shall suffer death, the extreme penalty for that crime.

Now, it’s not surprising that such a selective process is set in motion by Arkansas law because the crime of rape is in Arkansas as elsewhere.

A crime that includes a wide range of factual situations, it is simply any consummated sexual assault.

It can be committed against a mature woman, against a child, with a weapon endangering life, or not endangering life.

The victim can be permanently, physically injured or not permanently physically injured.

Tremendous range of factual situations involved any large range of offenders and in fact on this record one can say that only about a quarter, 25 out of a 100 of the persons actually convicted of rape get to death sentence.

Now, I put the focus here at the beginning to point out what I -- where I think the focus has to be in this case.

On the process by which that selective judgment is made, this is not an insignificant or non-important process.

It is literally vital but it is also vital and legal sense because the law of Arkansas as to whether rape is or is not a capital offense is in fact being made case by case as in each individual adjudication the determination is made whether the defendant lives or dies.

It is a law making process the penalty for rape in Arkansas is not death.

It is subjection to this decisional process and the question which this case presents is whether the specific procedure here is in Arkansas.

To make that decision, comport with the Constitution.

Now, how is the decision in fact made.

It is made in each case by a jury.

A jury cannot be waived in a death case in Arkansas.

If as petitioner Maxwell did, the defending contest guilt if the intensity is innocent, a jury is in impaneled to decide two distinct questions whether he is guilty of the crime of rape and if so, what punishment shall be imposed upon it.

As to the first of these two decisions whether or not the defendant is guilty of rape, the jury is guided as it is in any criminal case by the law defining the crime of rape and the trial in the capital case in Arkansas is not unusual in this regard.

The jury can’t convict the defendant simply because they don’t like him or because he’s unpleasant or because they don’t like the color or his skin or for any other reason.

It can convict him only if they find each element of the offense established beyond a reasonable doubt on the record.

The definition of the crime of rape gives the jury something to talk about.

When they go back to decide the case, they talk with each other about what is the elements of the offense they’re made out and the rule of law that is being applied by the jury to decide the guilt question and only the guilt question is the same rule of law.

It applies to every other person in Arkansas as previously been tried for rape or will be.

When we get to the penalty question, on the other hand, we are in a different world because on the penalty question the jury is given no instructions.

The jury is given no principles to guide its decisions.

The ordinary procedure in Arkansas is simply to give the jury two forms, a death form which rates we find the defending guilty as charge and a life form which says we find the defendant guilty as charge and sentence him to imprisonment for life.

No instructions are given.

The jury is simply told, take your choice.

Now, we have characterized that process of decision making in our brief not in the constitutional sense or simply a descriptive sense as arbitrary.

And I might rest on that because neither California nor Arkansas in response as coupled with that question only they defend the process of sentencing as I understand it on the ground that it constitutes a beneficent arbitrariness.

But I think it is helpful to examine in somewhat more detail exactly what is entailed in what I call an arbitrary process.

The jury is given in making its determination of life or death a choice which it may make without any prerequisite findings of fact.

That is to say the ordinary procedures that we all know as lawyers, it ordinarily go on in courts of law.

Where a judge says to a jury if you find “x” then the result would be “y.”

Simply it doesn’t apply.

There are no required findings of fact.

The jury need not find that the defendant use the weapon or permanently injured the victim or that he had a prior record or any such thing.

Any and every offense of rape may be punished by death nor required findings of fact.

Not only are there no specific required findings of fact in the nature of aggravating circumstances in that sort of thing.

There are no general findings of fact put to the jury.

The question is not asked would society be safe if this man were incarcerated in the penitentiary for life.

Chief Justice Earl Warren: We’ll recess now Mr. Amsterdam.

You may continue your argument.

Rebuttal of Anthony G. Amsterdam

Mr. Anthony G. Amsterdam: Thank you Mr. Chief Justice.

If I may, I would like to resume a brief description of the exact nature of the discretion that the Arkansas jury has in capital sentencing.

As I have said, there are no prerequisite factual findings to return a death verdict.

The jury may need to find nothing specific in aggravation.

Of the sort that for example the European Codes used that the offense was committed with the weapon or that the defendant had a prior conviction of a similar offense or any such thing.

There are -- is no general required finding of fact such as that the defendant is unreformable or recidivist or incurable or any such thing.

There are no preclusive findings of fact that is findings which will exclude the death penalty.

The jury is not told if you find that the defendant was suffering a mental disease or defect which rendered him unstable or that the defendant has no prior record or that the victim did not use a great degree of force and resistance or that the defendant did not use the weapon you may not sentence to death.

And there are similarly no general preclusive findings of the nature of emotional disorder or any such thing.

There is no direction to the jury that it shall take consideration of any particular range or realm of fact.

The jury is not told in deciding whether the sentence to defend into life or death you shall take into account whether the defendant used the weapon or whether the victim was previously chased or the character of the defendant or any of those things.

There’s not even an authorization which would direct their attention to some things you may take account of such and such and the jury is not told that there are things they may not take account of.

You may not take account of race.

You may not take account of anything that the legislature thinks irrelevant to its purposes in enacting the death penalty.

There are no principles for judgments.

No standards for judgments given to the jury at all.

Not even a kind of vague standard that is the minimum we use in any kind of other judicial proceedings such as reasonable man.

It’s sometimes easy to forget how much the reasonable man standard does direct the jury in a civil damage case.

At least the jury knows that the defendant’s obligation is to exercise reasonable care, the care that the reasonable man would exercise toward the plaintiff.

Our whole law assumes that that has significance.

It’s different from the duty the defendant owes to a trespasser to exercise somewhat less care that he might owe to someone who he has special duty to care for.

The jury in the civil case isn’t told that they may return a verdict against the defendant if they don’t like him or if there’s something offensive about him or any such thing.

The issue is framed.

He owes a duty of care.

How much care?

The care that a reasonable man would exercise.

There’s no such thing in the capital sentencing discretion.

Unknown Speaker: Are there any more standards given to a judge if he does the sentencing normally?

Mr. Anthony G. Amsterdam: Is your asking of capital sentencing or regular sentencing?

Unknown Speaker: Neither one.

Mr. Anthony G. Amsterdam: In capital sentencing, ordinarily there are no greater standards given.

In non-capital sentencing, there may or not be but even if there are no standards given, explicitly by statute, the kind of discretion he exercises is very different than that which a jury exercises in sentencing to death for a number of reasons.

One is that the judges are professional sentencer and although we certainly make no attack on the jury system as such we think that we need not get any or near attacking the jury as an administrator of rules.

It is very clear that a professional sentencer is better at formulating rules adjudication by adjudication than in ad hoc where people in my point --

Unknown Speaker: This point rests on your faith in a profession rather the state having furnished any statement?

Mr. Anthony G. Amsterdam: There are number or relevant points in nine capital sentencing, apart from the professional quality of the judge, professionalism Your Honor is a number of things all wrapped into one.

When the fact that the judge sentences a number of cases involved some consistency, he is the man that does at each time if only the consistency of his habit, there’s a consistency there.

Unknown Speaker: But all the statement -- the states contribution to it is furnishing the professionalize I take it rather than furnishing the standard?

Mr. Anthony G. Amsterdam: I think that’s right except in so far as certain standards are built-in to the assumptions of the system which are not built-in to capital sentencing such as rehabilitation.

When a judge sentences, he knows that the man whom he is going to sentence is going to come out after a period of time.

And he has to make a judgment as to whether the period is so severe that the man is going to be a serious danger from rehabilitative standpoint.

Afterwards, it’s not true of the capital sentencing decision.

It’s also true that --

Unknown Speaker: Well, are there any -- are there any -- do you know of any statutes that direct the judge specifically to take rehabilitation into account?

Mr. Anthony G. Amsterdam: You know our statutes that do, do that in some states but the model sentencing --

Unknown Speaker: Not great normal, isn’t it?

Mr. Anthony G. Amsterdam: No, it is not.

It is not indeed.

On the other hand, the judge inevitably is going to do so and the development in evolution of sentencing counsels, appellate review in some greater or lesser form affects --

Justice Byron R. White: This recent practice and the accumulation of this from experience.

Mr. Anthony G. Amsterdam: A practice that is possible because the state provides an institutional nexus for it.

Both the professional sentence or in the assumptions of the system, neither which are true in capital sentencing, Mr. Justice White.

Unknown Speaker: What would you say about the statute Mr. Amsterdam that is called the mandatory death sentence?

Mr. Anthony G. Amsterdam: A mandatory death sentence it would have none of the problems that this case raises Your Honor.

I would have troubles depending on the nature of the statute under other constitutional provision but none that are involved in this case.

Unknown Speaker: Now, I realize that.

There are no standards that I am trying to involve there, except the legislative judgment in this particular crime without more carried in the legislative point of view against them.

Mr. Anthony G. Amsterdam: Your Honor, that is the standard though.

If everyone who is convicted of a given crime is sentence to death, you don’t have what we are complaining about in this case in individualizing process which selects without where more reason, one person to die and the other person to live.

A jury sitting in one case determining not perhaps because it takes a different view of the facts of this case than the facts of another case but because it may take a totally different view of the legal determiners that may find that it need not to have legal determiners.

It may sentence one man to live and another to die.

Now that is the essence of the standards of this complaint that we make.

And it does not involve where you have mandatory capital sentencing because every one in the class is treated identical.

Unknown Speaker: Mr. Amsterdam, there is a rule for which you are contending here confined to capital cases, now there are in some states or procedures by which a non-capital cases juries fix the penalty and they have a range of discretion as a constitutional rule for which you are here contending such as to --- such that it would follow that standards would have to be proscribed in such cases.

Mr. Anthony G. Amsterdam: Our contention is limited to capital cases and the justification for us so limiting it is -- it lies in three things I think.

First, this Court has made clear for considerable period of time that the degree of arbitrariness, it is permissible in a sentencing system is less where the penalty is grave where I speak of Skinner and Oklahoma.

Now Skinner held that you couldn’t sterilize thieves if you didn’t sterilize embezzlements.

I think that nobody on the unanimous court have decided that case assume that indeed the opinions of the contrary that you couldn’t sentence embezzlers to 15 years and certain thieves to 10.

At that level of discrimination or determination, there’s no question about distinguishing between embezzlers and thieves.

When you sterilize them or when you kill them, that’s something else again.

The second consideration I think is that and this goes to Mr. Justice White’s point as well.

That when you are dealing with a non-capital sentencing regime, there are number of considerations that come into play that justify more arbitrary individualize judgments than when you’re dealing with a capital sentencing regime.

Non-capital sentencing inevitably involves in some point the question of reformation and the only tools with which we as a society at the moment come to grips with the question of reformation are the highly individualize diagnostic judgment that are made of particular individuals.

Now I myself have very serious troubles with the infusion of therapy in the sentencing because sentencing becomes a mixed bag of individual I supposedly helpful therapeutic considerations and penal judgments but the question is to what kind of standards to imply on that process is much a little more like the question involved in the McGautha case as to how much you can justify some arbitrariness in the imposition of penal sanctions in order to serve therapeutic ends which require extreme flexibility.

In capital sentencing, there is no therapeutic need and no therapeutic justification.

The death penalty is the one penalty of which one can say cannot be justified for purposes of reformation or rehabilitation.

It is a writing off of this human preacher as fit for rehabilitation and no individualize judgments of the sort that need to be made diagnostically enter into the judgment.

So that there’s no excuse for the degree of individualization without rules of law in capital sentencing that there is non-capital sentencing.

Unknown Speaker: I want to be sure I understand you.

Are you saying that in your view, a Constitution presents no barrier to a state system under which for example the jury might be given discretion to impose a sentence of one -- in between one year and 100 years?

Mr. Anthony G. Amsterdam: Your Honor, I’m simply saying that this case doesn’t present that question.

My personal view is that there is a grave constitutional deficiency in such a system.

Unknown Speaker: That’s what in order to find out.

I know this case doesn’t present quite that but I take it that the theory that you’re advocating here might extend to that and by the same token, I suppose it would extend to something like the California Adult Authority procedure, that is to say that at the same problems as to whether that procedure might be defective for the lack of standing.

Mr. Anthony G. Amsterdam: I think that a great deal depends on several things.

What decision is being made?

The importance of the decision, a life and death quality decision is in my judgment unique.

Who is making the decision?

I think there’s a difference between the judge and the jury.

I think that the (Inaudible) case which requires certain standards for jury action may not mean that a judge has sub-standards in taxing costs.

I think that the parameters, the outer boundaries of judgment are very important.

If I may let me try to frame this issue in terms of one that is more familiar to this court’s jurisprudence historically.

The question that is raise as I see by our standards attack is in not a typical question of how you limit discretion and keep it within constitutional confines.

If you take for example a legislature that wants to regulate parades in the state it could simply pass a permit statute that says no one may conduct a procession without the permit from the chief of police.

Now that would raise the greatest constitutional difficulties under the decisions of this Court.

Now if it wanted to enact to one that delimited the discretion how might it go about it.

There are whole host of ways in which it might go about it.

One it might say whoever conducts a procession with vehicles or a procession on the streets or a procession on Pennsylvania Avenue between 14th Street and the capital that delimits the range of cases within which the judgment is being made.

Secondly, it might say that in determining whether a permit shall issue the chief of police shall take account of traffic congestion, the movement of emergency vehicles, simply whether there is another parade or procession the same day and that sort of thing.

Third, it might subject the judgment of the permit issuer to review by another agency by a court.

Now each one of this without getting rid of discretion totally delimits the discretion and again it would make a considerable difference whether the permit is totally unavailable or whether the permit issuer only had the power to put it off for a day set it some time within the week but not in a particular day requested and that sort of thing.

Unknown Speaker: Well, unhappily your last discussion suggest the possibility that you might have two questions.

One the immediate question or standards necessary and the other the next question, the next -- when the next ball game is played which is are these particular standards appropriate or adequate?

Mr. Anthony G. Amsterdam: Precisely and what -- where I think we are in this case is where this Court was in 1930 when they first began to enact permit ordinances.

It simply has to say whether an Arkansas procedure which has available to it, all of the different devices by which they might control the discretion limiting the range of cases to which it applies providing for aggravating circumstances and prerequisite findings of fact precluding the death penalty when certain mitigating findings are made.

Establishing rules or principles or even just telling the jury so that they have something to talk about when they go back there and they all have to agree that you must come to a decision consonant with some certain principle.

Unknown Speaker: And just so there won’t be any misunderstanding again as far as I’m concerned with respect to judge sentencing, are you saying that as a matter of your understanding of the Constitution of the United States, it is not necessary that the standards be proscribe to guide the judge for the reasons that you are so well stated here in deciding whether he will impose a death sentence or something less?

Mr. Anthony G. Amsterdam: I am not saying that the Constitution does not require standards to be judge.

I’m --

Unknown Speaker: Would you say--

Mr. Anthony G. Amsterdam: Saying only that this case does not raise it.

Unknown Speaker: That’s what I wanted to be clear on now.

Finally and this is my last question of you.

What we have been discussing in this colloquy would apply more or less to the same to your second point namely the need for unitary.

Your objection to a unitary trial, is that correct?

Mr. Anthony G. Amsterdam: That is correct.

Justice Potter Stewart: You, in answer to Mr. Justice Fortas’ initial question in this series about distinguishing a capital sentence from an ordinary sentence and you said there were three distinctions you got as far as to the Skinner against Oklahoma distinction and the absence of any therapeutic possible arguable therapeutic purpose and a capital sentence follows the third.

Mr. Anthony G. Amsterdam: Thank you Mr. Justice Stewart, I -- the third is more limited to Arkansas and to this case and it is that the Arkansas Supreme Court does review sentences imposed by juries in non-capital cases and it does not in capital cases.

And as I was trying to sketch out, it makes for me a great deal of difference whether the discretion is limited by a review or whether it is not.

That’s one of the factors that makes the discretion given juries in death cases totally arbitrary with no restraint, no protection against us.

Now, I’m not passing at this point beyond the standards argument.

I launch to offend this and the court simply of describing the standard was trial.

I’d like to finish if I may my description of the trial process and then state briefly the two constitutional contentions that emerge from it.

The Arkansas jury not only makes the guilt and penalty determinations but make some at one sitting if the defendant contests guilt.

All the evidence be it on all questions is submitted at once.

The jury goes out and returns a verdict both on guilt and on punishment.

Now, the effect of this, the most immediate effect of this is fairly obvious.

If the defendant takes the stand to speak to have his voice heard by the people of the power of life and death decision over him, he runs into all of the prejudices that the privilege against self-incrimination is intended to protect him against.

First, if he takes the stand and doesn’t claim innocence he is going to be convicted.

There is just no doubt that the jury will convict him when he gets on the stand, testifies and doesn’t say, I didn’t do it.

If he gets on the stand and he does testify that he didn’t do it.

Be subject to cross-examination which is clearly potentially incriminating.

In addition to that under Arkansas procedure, he is subjected to impeachment of the most vicious sort.

Literally, every bad act however remote and whether reduced to conviction or not can come in against them with inevitable prejudice on the guilt determination.

On the other hand, --

Unknown Speaker: You mean every act throughout his life?

Mr. Anthony G. Amsterdam: There is only one limitation that I know of Your Honor.

There are couple of Arkansas cases that say that a bad act which is too remote may not be proved but the Arkansas Court has admitted for example a minor liquor violation, 20 years old and an automobile accident, 24 years old those sorts of things.

So, I think the remoteness requirement is insignificant and the practical fact of the matter is that however prejudicial, for example we have cited in our brief.

Cases in which the man on in trial for murder who took the stand was impeached by showing that he had committed a prior murder.

It’s relevance to credibility is questionable but it’s prejudiced on the guilt issue as obvious.

Now this is the kind of thing for which he let’s himself in if he takes the stand.

On the other hand, if he doesn’t take the stand, he literally goes to slaughter like a dumb beast.

He is deprived of his best witness on facts and mitigation.

He is the only person who can tell about his motivation particular circumstances that may have let out to the act for which he subsequently convicted which may convince the jury in its totally unfettered discretion not to sentence him to death.

He is the best witness on background facts.

Facts about his childhood, his upbringing that jury may take into account.

More than that, his testimony is the only thing that can bring home to the jury that they are sentencing a human being, a live human being who may have heard speak like other human beings and lies the characteristic of speech that human beings have.

They are sentencing such a person to death.

And what happens in a case like William Maxwell is that if a defendant decides that he is going to exercise his privilege against self-incrimination and not take the stand and not be subject to impeachment.

And not proved guilt out of his own mouth.

He goes to life or death decision without the jury’s ever having heard a word uttered by him.

Unknown Speaker: Mr. Amsterdam, you stated earlier in your argument that in Arkansas, as I suppose in other states the statutory offense of rape covers can cover a very wide spectrum actually of human conduct.

As far as I can see, we don’t have anything of the facts of this case.

We don’t have the trial transcript.

We don’t have any description what the actual conduct was here and I suppose that the theory of Arkansas might be wrongly as that the jury’s discretion is to be exercised in a light of what they here from the witness stand as to the particular circumstances constituting this particular statutory violation and that we don’t adhere at all.

I wondered if it is available.

Mr. Anthony G. Amsterdam: I would say the facts are described in the Arkansas Supreme Court’s opinion in 370 S.W.2nd and I think this Court could notice the facts described in it.

Unknown Speaker: We don’t have a transcript of the trial of this?

Mr. Anthony G. Amsterdam: The trial transcript Your Honor is not in this record and there is a recitation of the facts as fairly complete by the Arkansas Supreme Court on Appeal.

As to Arkansas is taking any position to the jury thus indeed rely on those facts, the answer is we simply don’t know.

Unknown Speaker: We’ll I suppose that --

Mr. Anthony G. Amsterdam: It’s not required.

Unknown Speaker: Well, a jury hears the case for the prosecution on the issue of innocence or guilt and I say that you rightly point out that’s about all here.

And so I suppose the theory must be that it’s so to exercise its sentencing discretion based upon where it’s heard from the witness stand with respect to circumstance of this statutory violation.

Mr. Anthony G. Amsterdam: I suppose that might be.

The proof doesn’t seem to meet the theory because the evidence that we have gathered indicates that there are three factors which distinguish people who are sentenced to death from people who are sentence to life generally in Arkansas race.

The commission of the contemporaneous offense, some other offense like robbery which Maxwell did not commit and a prior record imprisonment and we do not know whether Maxwell has any such prior record in imprisonment on this record.

It may well be --

Unknown Speaker: Well, do we know -- did we know from the trial record?

Mr. Anthony G. Amsterdam: We would not know from the trial record Maxwell.

Unknown Speaker: He did not take the stand?

Mr. Anthony G. Amsterdam: By exercising the privilege avoided going into the question of background at all with the result and this is not a typical that a defendant who claims the privilege has the jury decide whether or not he should leave based on five minutes of his life or 10 minutes of his life.

All they know about this man is what they have heard that he did in the few minutes constituting the crime.

No more than that is known.

Now, whether or not the theory of Arkansas is that they act on that.

Our theory is that they need not act on that under Arkansas law.

Arkansas law allows the jury to act on something broader than that if it is present, but the defending can present it only at the cause of waiving his federal constitutional privilege against self-incrimination.

Justice Potter Stewart: Is the trial transcript, I think I saw somewhere in the briefs that this, the trial transcript was available in the United States District Court and the Federal Court of Appeals.

Mr. Anthony G. Amsterdam: Mr. Justice Stewart, the status of the trial transcript in this case is very confused.

Let me state it briefly as best as I can.

The pretrial order of the federal district judge in this case provided that the transcript would be available and that portions of it might be put in to the record by counsel if they wish.

No portions were formally put into the record.

On the other hand, the trial transcript had been around in the district court for a long while.

This being Maxwell second habeas corpus petition and the district judge in fact relied on it in some part although none of it was formally introduced for some of his findings such as a finding that Maxwell did not take the stand.

The transcript because it was not in the record in the district court did not go up to the Eighth Circuit.

Shortly before the decision by the Court of Appeals for the Eighth Circuit, the clerk of that court wrote counsel asking the copy of the trial transcript be furnished and the Court of Appeals also relied on certain aspects of it such as portions of the opening argument by defense counsel in that sort of thing.

Again, formally it’s not here.

I do not think that the transcript is in fact before this Court.

It is not physically here but I do not think that it is in fact here.

However, certainly, those facts which appear in the opinions below or in the opinion of the Arkansas Supreme Court might properly be relied on by this Court.

Unknown Speaker: I suppose it’s a public record that which we could take.

Mr. Anthony G. Amsterdam: Oh yes and I don’t think there’s – indeed, we've going to the point of actually in our appendix say according portion of it none otherwise because they think it’s non-controversial and it is a public record of course.

Unknown Speaker: And it’s now lodge so far as you know with the Eighth Circuit Court of Appeals?

Mr. Anthony G. Amsterdam: I don’t know when it’s technically lodged there.

It certainly was sent there and they do have a copy.

Now if I may briefly pass from what I had intended to be merely descriptive to the argument.

The standards question seems to be resolved by the briefing in this case into a relatively simple matter.

We contend that the power given Arkansas jury’s to sentence to life or death is legally arbitrary in violation in the rule of due process.

It offense we think every aspect of the rule of law that this Court has found previously in the due process clause.

First of all, it involves sentencing on a case by case basis by jurors who need not even discuss why they choose to send the man to death.

If they do discuss why and they decide on a common ground, there is no assurance that that ground is common to any other defendant but this defendant.

The man who was just tried and just convicted and just sentenced to life might have facts like identical with those of the defendant who now goes to death.

The only difference being that because Arkansas provides no help, the jury state different views neither of the facts but of the law.

A necessary consequence of that kind of arbitrariness and decision making is that people are unequally treated in violation of the notion basic we submit to both due process in equal protection that requires evenhanded administration of justice.

People treated similarly.

It doesn’t mean no individualization in sentencing.

But it means individualization on a rational basis not on a hit or miss flip basis that arises from having no standards whatever from making the sentencing decision.

It also means that not only are the people who are sentence to death treated unevenly, unequally as against those sentenced to life.

But they are treated irrationally, in the sense that there is no relationship, no assured connection between the purposes for having a death penalty at all and its imposition in this case.

There is nothing to assure that whatever Arkansas may want to achieve by allowing rapes to be punished by death.

That on the fact of this particular case with justification attaches.

Unknown Speaker: Do the Arkansas practice differ in many way from the practice in Federal Courts and the statutes the death penalty is permitted?

This apply the jury?

Mr. Anthony G. Amsterdam: It is not Your Honor.

Unknown Speaker: There is not difference.

Mr. Anthony G. Amsterdam: Well, it depends.

Now, again the federal statute is somewhat different.

Some of them give the judge sentencing power or just give the jury sentencing power.

Unknown Speaker: Are those not like the kidnapping or (Inaudible)?

Mr. Anthony G. Amsterdam: As to the federal statutes that give the jury sentencing power, they do it in the same that Arkansas does.

And that indeed is true.

I’m quick to admit of most jurisdictions.

Now there are differences in terms of there were degree of reviewability of the jury’s judgment, some jurisdictions provide that they jury must make the determination on the evidence of record but Arkansas does not.

There are also is about the minor differences but the major thrust of the Arkansas procedure is not use in the federal courts in jury sentencing and elsewhere.

Justice William J. Brennan: Well, almost everywhere (Inaudible)?

Mr. Anthony G. Amsterdam: Pardon me, Mr. Justice Brennan?

Justice William J. Brennan: Does the procedure anywhere differ materially from the Arkansas procedure?

Mr. Anthony G. Amsterdam: Well, in Illinois for example, the concurrence of the trial judge and the jury is necessary.

In Arkansas, the jury alone makes a decision and as I’ve indicated I think there are may be difference in response to Mr. Justice Fortas’ question.

There may be a difference if you have a judge sentencing.

There may not but there may --

Unknown Speaker: I’m addressing myself to those jurisdictions where the imposition of the death penalty is by the jury and the jury alone where it has a choice between the imposing death or fixing life.

Mr. Anthony G. Amsterdam: The only --

Unknown Speaker: I’m just wondering.

Is there any jurisdiction where the regime in that regard is substantially different from what it is in Arkansas as you described?

Mr. Anthony G. Amsterdam: No, I think, I think not except to the extent.

It does come to the interrelatedness of our two arguments where you have a split verdict procedure.

We have a two-trial procedure.

The effect may be different because the jury has a plenary penalty trial as more to basic judgment on.

But in specific response to Your Honor’s question, the answer is that they are equally without standards.

Frankly, what has happened simply is this.

The legislature had passed the buck all over.

We have mandatory capital sentencing for an off a long time.

And when that became politically impossible to maintain, instead of proceeding to determine in what case is the death penalty would be implied the legislatures all over simply said we can’t decide this so I’m going to pass it under the jury and they simply made it discretionary.

They did -- they are differing forms of substance of crime, differing procedures the notions of discretion is essentially common.

Now the -- a third, I think vitally important thing you recognize in the regime which is common and in practice in Arkansas is simply that the jury can get away with the most flagrant violations of clear constitutional rights without getting caught at.

One of the purposes of the rule of law of the requirement that procedures be regular systematically apply and applicable to all like cases is simply to prevent against abuse.

Now what we have in Arkansas and this is what I think is the relevance of the racial evidence on this record is a sentencing pattern of clear racial discrimination.

It couldn’t be caught said the District Court because the factors that go into the jury’s decision case by case are so intangible, so difficult to catch on to that you can’t prove that even a jury which even a set of juries of which convict Negroes of raping white victims and sentence them to death disproportionately frequently or in fact discriminate.

We don’t know.

They may be all sorts of intangible factors other than race that affects it.

The Eighth Circuit took the view that somewhat more hardheaded that probably juries are in fact discriminated generally.

But Maxwell’s theory probably didn’t discriminate.

Again, how do you know?

There’s no way.

The jury didn’t have to have any reason little on any specific reason for fixing the death penalty and so what happens under a regime of this sort is not only that the giving up of all political responsibility in the representatives of the people, legislature to fix standards of general application passing the buck in effect to individual juries.

But when individual juries react in a way which violates the most clear and unequivocal commands of the Constitution, a court can’t catch them out.

Now, our submission essentially is that such a regime violates a rule of law basic to do process.

That there is in here in the very notion of due process of law, the requirement of a rule of law which governs light cases and applies.

I think that this Court would not for example sustain an Arkansas sentencing procedure which provided that every man convicted of rape should roll a dice and if it came up 7 or 11, he would die.

And any other numbers, he would live.

Actually, what Arkansas has done is worst.

It’s worst because I assume that the dice would not discriminate on grounds of race and its worst because the 2 out of 12 chances that each man would have are at least identical.

We have not even that assurance.

And the argument is made by Arkansas and it’s made by California and everybody is being treated evenhandedly and equally under the sentencing procedure.

Unknown Speaker: Mr. Amsterdam, have you attempted to formulate a kind of standard that you think would be constitutionally acceptable?

I know it’s not involved in this case.

But it probably is the next step if you prevail here.

Mr. Anthony G. Amsterdam: I would be glad to address that.

There are several ways I think a legislature could go about it.

Unknown Speaker: Well, it have to be legislatives.

Suppose that it took the form of instructions by the judge.

Would that satisfy you or not?

Mr. Anthony G. Amsterdam: As far as the --

Unknown Speaker: Does it satisfy you or not?

I beg your pardon, I mean of course in terms of your or view of the constitutional requirement.

Mr. Anthony G. Amsterdam: As far as the federal constitution was concerned, it would satisfy our demands for a constitutional rule of law provided that the following conditions were met.

One, that the standards were announced by the highest court of the state or at least approved by it so that the same standards were now as by different trial judges in different cases.

Two, that the standards were made clear before the trial so that the defendant would have a fair opportunity to know what he was trying at the trial provided that those two conditions were met.

And that the standards themselves met the substantive requirements of definiteness for standards.

It wouldn’t matter whether they were done legislatively or judicially and I would think it’s a matter of state policy.

It would be quite improper for a court to promulgate this justice I as I was going to suggest, I’m troubled about suggesting specific standards to this Court because the individual standards that one designs are responsive to the most fundamental penological policy questions as to why you use the death penalty and when and that’s a matter of legislative.

Unknown Speaker: I understand that but so far as I’m concerned that’s a little difficult to think about your point in the abstract without having some fairly specific idea what kinds of standards or what kind or kinds of standards the federal constitution with regard as within the limit of constitutional toleration.

Mr. Anthony G. Amsterdam: Let me respond to that in two ways.

First, by saying that I have in mind something not terribly unlike the approach taken by the Model Penal Code although that’s not an exclusive approach and then although again I voice caution for two reasons.

First of all the Model Penal Codes description of the aggravating and mitigating circumstances and that sort of thing applies to murder and not rape and so it’s of no use particularly in drafting a rape statute and also because I have very grave trouble about certain of the specific formulations of the Model Penal Code.

For example, one of the aggravating circumstances that is it a crime is attrocious.

That troubles me.

I think that they could describe and get out what they want in terms of it being committed on a minor child or helpless person or being committed with considerable willful infliction of pain so that there are number of details about the Model Penal Code.

I might quarrel that the approach is a not insignificant model.

Now, second way to respond to that is to try to give you what I think of it some ways in which a legislature concerned with the crime of rape might put standards into a sentencing statute.

One way, they might go about it is in the manner I suggested in describing what Arkansas didn’t have.

You can have required factual findings, prerequisite factual findings.

You can consider them if you will aggravate in circumstances.

The jury may not impose the death penalty unless it finds that the defendant used a weapon that he injured the victim permanently in a physical way that he committed the offense on a victim of gravely disparate age.

One can enumerate half dozen by of course, it simply indicate that’s one approach.

Unknown Speaker: It would say the diffuculty that that raises I’m sure it’s obvious to you is that suppose a legislature says, “Oh, no, no, no Mr. Amsterdam, that’s not what we mean.

We mean any of the kind of rape.”

Mr. Anthony G. Amsterdam: Then --

Unknown Speaker: In other words, what you’re talking about is standards which in effect redefine the crime.

Mr. Anthony G. Amsterdam: Well, --

Unknown Speaker: I’m not talking about purely what shall I say things like pervasives due process standards such as that was done.

It was done in the course of the commission of another crime or even that get into the area.

But it it’s not like a reasonable man the example or pre-meditation or this more generalize things when you start talking about inflict the death penalty if the victim was of a disparate age.

What you’re really saying to the legislature no.

You may not impose the death penalty except for this kind of rape.

Mr. Anthony G. Amsterdam: No, I don’t think that’s necessarily so.

I have trouble in conceiving the matter that way for two reasons.

One, the Arkansas legislature hasn’t release any other kind of rape.

It said that that penalty is available for any other kind of rape but we don’t really expect that it will be impose of any other kind of rape.

It’s going to be imposed either wholly or arbitrarily or in some set of sub-classes and it’s made no attempt whatever to define those sub-classes but in addition to that this is only one of the ways in which a legislature might regularize the procedure.

If a legislature said that the governing issue was the atrocity of the crime.

At least that would allow the jury to consider that in focus as distinguished from the character of the defendant.

If the legislature said yes, any old kind of rape but the issue is how bad is the defendant?

Is he reformable?

Will the public safety be served adequately by imprisoning him for life instead of killing of him?

That would be a test the jury could apply which would focus in far more than we have the issue before the jury.

If I may, I’d like to simply state that the essence of our constitutional contention with regard to the single trial procedure is related but distinct from the attack on the standard was penalty trial related because as the factual description I’ve given you in the case.

Any defendant, who claims his privilege against self-incrimination necessarily goes to trial for his life in front of a jury which is totally uninformed, totally deprived of the requisites of information for rationally sensing it and therefore the arbitrariness which the standard list discretion allows.

Almost inevitably in fact is what occurs in sentencing the jury has no basis on which to sentence --

Unknown Speaker: The part of your submission that the states may not limit considerations encompassing to just a crime, are they constitutionally required to consider the possibilities of rehabilitation or the character?

Mr. Anthony G. Amsterdam: This case and our submission do not raise that question.

I think that other provisions of the Constitution and those we invoke here do require that.

But that’s no point of our submission here.

What we do say is this, that where a state authorizes each jury to take any view of the law and any view of the facts and sentence the defendant to life or death on any basis that if it then requires the defendant to forego the exercise of his privilege against self-incrimination as the cost of putting before the jury material on which rational sentencing decision can be based that he has so burdened the exercise of the privilege and so deprived of rationality the determination which is ultimately made by the jury of the defendant exercises his privilege that the due process, of course along with the Fifth Amendment --

Unknown Speaker: You know whether in Arkansas in non-capital cases there is a provision for pre-sentence reports?

Mr. Anthony G. Amsterdam: I do not know whether there is a provision for pre-sentence reports in non-capital cases.

I would assume that there was none.

I would assume so because non-capital sentencing is also done by jury in Arkansas in the ordinary procedure --

Unknown Speaker: But I take it in those cases, the judge does sometimes participate in the sentencing?

Mr. Anthony G. Amsterdam: I would assume.

If I may, --

Unknown Speaker: Excuse me.

I’m sorry.

I was asking question.

What under Arkansas law our counsel permitted to argue to the jury in their closing argument with respect to the imposition of the death sentence or not.

Mr. Anthony G. Amsterdam: Counsel are permitted to argue to the jury, yes.

And both counsels may argue to the jury with regard to the death sentences.

Justice Potter Stewart: As --

Mr. Anthony G. Amsterdam: Of course, the difference is that prosecution is also of good things to argue from, his got the crime and defense counsel if the defendant exercised the privileges nothing argued.

Justice Potter Stewart: I remember a case that came here from Ohio back in the 1920s in which I remember it because my father was counsel for the petitioner of the case when I was a little boy in which Ohio which has somewhat similar system to Arkansas but this was for first-degree murder had not allowed the counsel for the defendant to even argue to the jury that they should extend or recommend mercy as that states has and that decision was either affirmed or certiorari was denied here.

I’ve forgotten which but I wondered if in the case law of Arkansas if some of the standards have not been evolved in deciding what is permissible to be argued to the jury with respect to the imposition of penalty in the capital case.

Mr. Anthony G. Amsterdam: Mr. Justice Stewart, my statement that counsel are permitted to argue to the jury arises from my observation of reading a transcripts in Arkansas death cases.

There is no decision of the Arkansas Supreme Court which specifically talks about counsel arguing to the jury at all.

Let alone defines what arguments are proper and what arguments are not.

One can find nothing in Arkansas case law that is instructive about standards that stems from the argument.

I simply state from observation that counsel are indeed permitted by the Trial Court to argue the penalty issue of the jury although as Your Honor suggests in other states not even that is permitted, the discretion is suppose to be so arcained a matter that it emerges services and works its doings only in the jury room.

That’s not so in Arkansas.

If I may --

Justice Potter Stewart: So far as it appears, they can argue anything?

They could argue anything I suppose.

Mr. Anthony G. Amsterdam: So far as I know, there is no -- there has been no reported decision challenging a prosecutor’s argument or sustaining a defense counsel’s argument or whatever but the discretion is absolute and one would assume that if the discretion is absolute that absolutely anything may be argued.

Unknown Speaker: Right.

Unknown Speaker: If I may just add to one question.

Getting back to your colloquy with Justice White, I know that your position that this question isn’t here in this case.

But suppose we had a legislature say in a trial for the crime of rape.

The Court shall instruct the jury that the death penalty may be imposed if the jury is of the view that death is a punishment that should be imposed for the crime committed by this defendant.

That’s all the statute says.

Would that standard be unconstitutional?

Mr. Anthony G. Amsterdam: No, but it would be better than Arkansas because at least the focus is on the crime.

Unknown Speaker: Because looking at the facts as you referred to.

You referred this to the Supreme Court opinion.

I would suspect that on these facts that if there was that kind of instruction required that the facts of this particular crime perhaps would have brought the death penalty.

Mr. Anthony G. Amsterdam: Oh, I must therefore Your Honor.

I think that’s not so every rape crime is a serious crime there’s no doubt about it.

Unknown Speaker: I know, but this one -- this one dragging her out of the house, taking her two blocks away, beating her father, beating her, cutting her up?

Mr. Anthony G. Amsterdam: Well, cutting her up, she suffered some cuts and bruises.

You -- no.

Your Honor, must remember, what we are talking about is a state in which we have intra-racial crimes, 14% of the cases get out.

Now, one asks you know just guessing whether this isn’t the most serious 14% of the cases.

I would say, having seen a lot this cases that in my judgment at least that it is not but that is a judgment in any event that I leave to Your Honor.

However, the important thing is the jury doesn’t think about that.

Jury doesn’t have to care whether this is atrocious not atrocious, heinous, where the victim was injured where, the cuts were accidental, how long they lasted, whether they were cured, any of those things.

None of that’s relevant.

The jury does goes out and decides.

But maybe they don’t like to follow the defendant.

May sense some, yes.

Justice Thurgood Marshall: I don’t know whether they count this or not.

What’s your position of the appeal of the statute and give the judge the right to sentence again.

Without more, no standards and no everything, in Arkansas?

Mr. Anthony G. Amsterdam: My position would be that something which simply gave a judge the power to do the same arbitrate test the jury is now doing would not be constitutional.

Justice Thurgood Marshall: But that’s not question.

Mr. Anthony G. Amsterdam: I’m sorry.

Justice Thurgood Marshall: My question was, if they repealed the statute and reenact the statute which says that the judge has the sole right to sentence in rape cases or any other case, period?

Mr. Anthony G. Amsterdam: If they did that?

Justice Thurgood Marshall: Could have been.

Mr. Anthony G. Amsterdam: Yes.

Justice Thurgood Marshall: Why?

Mr. Anthony G. Amsterdam: Well, although it’s worst to give a jury this kind of discretion, it seems to me that what one does when it passes it to the judge with no more than that is essentially to again permit a judge to make individual judgments case by case which need to have no relationship to the judgment pass in the next case.

Now there’s not quite as that in the jury because a judge --

Justice Thurgood Marshall: It would offset in many a criminal statute?

Now in existence or do you limit it to rape cases.

Mr. Anthony G. Amsterdam: I’m not sure I understand the question, Your Honor.

Justice Thurgood Marshall: Well, embezzlement.

The judge now sentences without any standards, right?

Mr. Anthony G. Amsterdam: Non-capital, yes, Your Honor.

Justice Thurgood Marshall: Yes, without any standards.

Mr. Anthony G. Amsterdam: That is correct.

Justice Thurgood Marshall: And that can run from zero to a hundred years.

Mr. Anthony G. Amsterdam: A hundred years in some offenses.

Justice Thurgood Marshall: Well, exactly, consecutive sentences.

Mr. Anthony G. Amsterdam: Oh, Yes, Your Honor certainly.

Justice Thurgood Marshall: Without any standards.

Mr. Anthony G. Amsterdam: Except those which are assumed within the preconditions of the judicial role or which emerged form the fact that it’s Mr. Justice White has put it, you have a professional sentencer subject to common aspirations, common experience --

Unknown Speaker: Those wouldn't be enought to say -- I think it's (Inaudible) in your view though.

Mr. Anthony G. Amsterdam: In my judgment, I would not although again I must refer the Court to a distinction that I think is crucial between capital and non-capital sentencing.

I think there are justifications for a more clinical case by case approach in non-capital sentencing that are not available in capital sentencing and I am clear from the decisions of this COurt that the degree of arbitrariness allowable is greater with the imposition is greater and the death penalty is the greatest known demand.

Justice Thurgood Marshall: You limit it to -- for this case you are perfectly right to limit that that face is?

Mr. Anthony G. Amsterdam: For this case, I have no intentions to go and step behind.

Justice Thurgood Marshall: Well I dont see why you should go further than that.

Mr. Anthony G. Amsterdam: I have very great difficulty with the whole regime of sentencing in the discretion that we had.

And so to a lot of other people but I need to know further in this case and death cases.

Unknown Speaker: It’s a great deal of the rational Mr. Amsterdam of the opinion in the Witherspoon case was based upon the very premise that a jury under our system, the system followed conventionally and most of the states is allowed to roam essentially at large in deciding whether or not to impose capital punishment and that therefore it became awfully important that the jury in so far as possible would be -- would represent the conscience of the community.

That premise is I say was at the base of it, largely at the base of what was decided in the Witherspoon case, isn’t that correct?

Mr. Anthony G. Amsterdam: It was not a constitutional assumption.

It was assumption as to what Illinois law required.

If a state, --

Unknown Speaker: Committed?

Mr. Anthony G. Amsterdam: The court said permits this kind of discretion then it cannot stuck the jury in exercising the discretion.

But I think the Court needed to make none and made none of the kind of assumption that is of the constitutional nature that only could do this.

The question was not raise in Witherspoon whether Illinois did do it.

It appear that Illinois had done it and the question was whether you can give the jury unfettered discretion and then skew people who exercise.

Unknown Speaker: In a jurisdiction where you have a diminished responsibility rule, if the diminished responsibility instruction as given in all capital cases, I don’t know whether this or not.

But if that is, would that take care of the requirement as you see it?

Mr. Anthony G. Amsterdam: No, although it would present a limitation in each question of diminished responsibility or narrower definition of the crime or whatever.

Now is the outer parameters if the discretion and therefore --

Unknown Speaker: I understand that but I was just wondering why that it wouldn’t satisfy a constitutional requirement by a sort of it’s backwards if you will.

But the finding circumstances are much less than the death penalty may be given.

Mr. Anthony G. Amsterdam: If it were put in as a limitation on the death penalty, as distinguished from a limitation on conviction.

It might do that but then again you fall into the problem of the single verdict trial.

We don’t know whether Maxwell has to diminish responsibility or anything else because it couldn’t present evidence on that without waiving the privilege.

Again, the interrelatedness of the two issues becomes apparent.

The diminished responsibility alone would solve neither of our two constitutional contentions separately or together.

Thank you.

Chief Justice Earl Warren: Mr. Amsterdam, your time has expired but you may have five minutes to close if you will -- if you wish.

Rebuttal of Anthony G. Amsterdam

Mr. Anthony G. Amsterdam: I’d prefer to reserve it if I’m right for rebuttal.

I’ve gone a way and I would not take the --

Chief Justice Earl Warren: You don’t have anything to reserve but I said if you wanted to take five minutes in rebuttal, you might do it.

Rebuttal of Anthony G. Amsterdam

Mr. Anthony G. Amsterdam: Thank you very much.

Chief Justice Earl Warren: And of course, counsel may have five minutes to work also.

Mr. Harris.

Argument of Albert W. Harris, Jr.

Mr. Albert W. Harris, Jr.: Mr. Chief Justice, may it please the Court.

I’m here on behalf of the State of California as amicus curiae, in behalf of the respondent, and with the permission of the Attorney General of Arkansas speaking here particularly and exclusively with respect to the first question that is presented in this case.

California and Arkansas in this matter of sentencing procedures in capital cases share really only one common element and that is the element of living it to the jury to determine whether or not life sentence should be imposed instead of a death sentence without any standards, without any restrictions without as we put it in our instruction, in your absolute and sole discretion.

That’s the common element we share and that’s why we’re here and that’s why we’re concerned about this case.

Unknown Speaker: You have this hypothetical ground?

Mr. Albert W. Harris, Jr.: Yes, we do Your Honor.

We have a so-called bifurcated trial where the -- at the outset that jury returns the verdict on guilt and on guilt alone, and then usually a couple of weeks later, they start a penalty hearing.

Unknown Speaker: Same jury?

Unknown Speaker: Same jury?

Mr. Albert W. Harris, Jr.: Normally it’s the same jury.

The trial judge has the authority to convene a new jury upon good cause shown.

But normally, it is the same jury.

Unknown Speaker: And the bifurcated part of it is required in every capital case, is that correct?

Mr. Albert W. Harris, Jr.: Yes, it is.

Unknown Speaker: There's no discretion to say in this case, we’re just going to have a single jury --

Unknown Speaker: Oh, no.

Unknown Speaker: In order to determine at the same time.

Mr. Albert W. Harris, Jr.: No, it has to be done in two stages in every case.

Unknown Speaker: How long has that been the law?

Mr. Albert W. Harris, Jr.: Well, it’s been the law as long as I can even concern about it.

I guess since -- it must be a good 15 years, maybe longer than that.

I really don’t know.

Unknown Speaker: Up to this time?

Unknown Speaker: Not longer than that?

Unknown Speaker: Up to that time what kind of trial do they have?

Mr. Albert W. Harris, Jr.: Pardon me, Your Honor?

Unknown Speaker: Up to that time, what kind of trial was it?

Mr. Albert W. Harris, Jr.: Well, we had a unitary trial as they do in Arkansas and --

Unknown Speaker: Do you have unitary trials for non-capital cases?

Mr. Albert W. Harris, Jr.: In California?

At the present time.

Unknown Speaker: Yes.

Mr. Albert W. Harris, Jr.: Yes, we do.

Unknown Speaker: And jury sentencing in any of them or not?

Mr. Albert W. Harris, Jr.: Very, very little jury sentencing.

It wasn’t a great a while.

Unknown Speaker: Okay.

Mr. Albert W. Harris, Jr.: But very little.

The --

Unknown Speaker: There have been objections to yours on the ground that it violated the principles of fundamental fairness until -- what do you think about that?

Mr. Albert W. Harris, Jr.: Well, that’s one of the reasons that we’re here Your Honor.

This issue was very thoroughly got into before the California Supreme Courts last year and this particular attack on the question of lack of standards was raised and resolved by the California Supreme Court in favor of the established practice.

So we submit that it is valid and unconstitutional for a jury to not to be restricted in determining whether the return of life sentence instead of a death sentence.

Unknown Speaker: Was that the original basis of the jury trial?

That they would act to that in their discretion.

Mr. Albert W. Harris, Jr.: Well, that’s right.

Unknown Speaker: Members of the community?

Mr. Albert W. Harris, Jr.: That’s correct.

Well, basically the, it seems to me the same rule is followed in Arkansas as far as the lack of any standards or any restrictions on the jury is concerned is precisely the same rule that this Court required in the Winston case some 70 years ago.

When you held that it was improper for a trial judge to give a standard to the jury and to say to them you should return a death sentence unless you find mitigating circumstances in this case.

Now you held that was not correct that the trial judge should leave it to the jury in their absolute discretion and not tilt the scale one way or the other.

Now that is precisely the case in California.

And the jury has told that in no uncertain terms and it’s my understanding that that is the case in Arkansas.

But I want to make it clear that on this question of the unitary trial, we do not express any view because we, in this guilt proceeding, meet the objections that are raised in terms of information being made available to the jury.

Both sides are free to put in evidence in mitigation or evidence in aggravation.

They’re both free to go into the background of the defendant and to go into anything that is relevant.

Of course it has to be competent evidence.

And it is very common to call psychiatrist.

The defendant may call a psychiatrist who says he’s examined the defendant and is familiar with criminal characters and is in his judgment this man can be rehabilitated.

Now, there’s all sorts of evidence and certainly all of the things that would go into judge sentencing on the basis of a probation report or a diagnostic reports in our non-capital cases.

So, I think as far as that objection is raised and of course it’s tied into the lack of standards, we meet that very well in California.

Now, I’m not so sure it’s a benefit to the defendant.

Certainly, the bifurcated trials enacted as a means of giving a jury the fullest information before past sentence.

And I think that’s a good idea.

To say with the benefits, the defendant is something else again because the defendant is stuck with his own record.

He made his life and if it hasn’t been a good one he’ll suffer for it in the penalty trial.

There’s no question about it.

And it can be very difficult for the defendant whether or not in the long run it’s better to bifurcate or whether it’s better and gives the defendant a better shot at it to let it all go in one trial, limit the jury to what’s admissible on the murder charge or rape charge or whatever is quite another question.

In any event, we recede on the bifurcated trial.

We also have some previsions for review which have been mentioned in the briefs particularly filed by the petitioner who argues that the Arkansas jury verdict is under review.

Unreviewable for all --

Unknown Speaker: Before you get to that, may I ask you whether at the end of the penalty trial, there are any instructions given by the judge and if so what they are?

Mr. Albert W. Harris, Jr.: Yes, Your Honor.

At the end of the penalty jury trial, the jury is instructed in a standard instruction that it is the duty of the jury to determine which of the penalty is either death sentence or life imprisonment should we impose.

I won’t read the whole thing but just basically, you should consider all of the evidence received here in court presented by the people and defendants throughout the trial before this jury.

And that would normally include all the evidence on the guilt face as well.

You may consider, may also consider all of the evidence of the circumstances surrounding a crime of the defendant’s background and history.

And of the facts in aggravation or mitigation of the penalty which has been received here in Court.

However, it is not essential to your decision that you find mitigating circumstances on the one hand or evidence in aggravation of the offense on the other.

It’s the law of the state that every person guilty of murder in the first degree shall suffer death or confinement in the state prison for life at the discretion of the jury.

And then they’re told they have to indicate in their verdict which of the two either death as its put here or life they prefer.

And then they’re told there’s notwithstanding facts if any proved in mitigation or aggravation.

In determining which punishment shall be inflicted, you are entirely free to act according to your own judgment, conscience, and absolute discretion.

That verdict must express the individual opinion of each juror.

Beyond prescribing the two alternative penalties, the law itself provides no standard for the guidance of the jury and the selection of the penalty but rather commits the whole matter of determining which of the two penalties shall be fixed to the judgment, conscience, and absolute discretion of the jury.

And the determination of that matter if the jury does agree, it must be anonymous as to which of the two penalties is imposed.

Unknown Speaker: Is that in your brief or is it instruction in your brief?

Mr. Albert W. Harris, Jr.: I don’t --it certainly not set forth in full Your Honor.

It may be referred to.

Unknown Speaker: Could that be left filed with this please.

Mr. Albert W. Harris, Jr.: I’d be very happy to do them.

There are some other instructions that come in for example at California Supreme Court had a great problem over the last few years about arguments that while this man if he give him a life sentence might be paroled after seven years and go back and commit another crime and we have a special instruction now that covers that face, what a life sentence means.

Unknown Speaker: What is it?

Mr. Albert W. Harris, Jr.: Pardon me?

Unknown Speaker: What gives the special instruction on that subject?

Mr. Albert W. Harris, Jr.: Well, that’s -- see, it's quite a long one Your Honor --

Unknown Speaker: I mean there’s a substitute or something?

Mr. Albert W. Harris, Jr.: What it is basically is that the jury is told that a life sentence means that he may be paroled at some time.

But that it’s up to the adult authority to determine that’s a separate agency in California to determine when if ever he is released and in general, you’re not suppose to be concerned about that anyhow.

They’ll do their job.

Properly, you do your job properly.

That’s the gist of it.

That he can be paroled but they shouldn’t enter into your considerations as yours.

I -- we submit that the California procedure and I think it’s basically the same on its element of lack of standards was adopted originally to benefit the defendant -- defendants in capital cases and its easier to say that the legislature passed the buck that it didn’t want to decide the hard question of who should be executed and who shouldn’t be.

But I don’t think that was the basis for it.

I think the basis for it was in the experience of all of us who know anything about capital cases that is impossible, at least I think its impossible to set out in advance those considerations exclusively.

New cases come along.

New situations developed.

Some of the considerations are those referred to human qualities and emotions that we can’t reduced to a formula.

Unknown Speaker: Well, it’s because of that that I confess a little surprise that you are fairly willing to accept identification of your procedure on this point with that of Arkansas.

The word standard is a word of great difficulty and I think that whether the absence of standards has reaches constitutional proportion is a question that may appear quite differently in the context of Arkansas procedure on the one hand and the context of California’s on the other because it’s at least arguable.

I should think that under the California procedure, whether or not you say there are standards, the jury’s attention in the second penalty trial is specifically focused upon the qualitative judgments that I suppose or at least arguably relevant to the kind of penalty that ought to be imposed whereas in the Arkansas procedure as I understand it that this moment that does not happen therefore the two systems in this respect are not necessary properly equated even before the application of constitutional concepts.

Mr. Albert W. Harris, Jr.: Well I certainly didn’t mean Your Honor to convey the impression that the two systems are the same or that if one falls, the other must inevitably fall but we, and we do not identify our system with Arkansas.

In fact, I have attempted to point out here some of the differentiating factors.

But in -- when you go pin it right down to the question of lack of standards and isolate that I think we are in the same footing.

Now, it may be that there are other aspects of the procedure which would say that even if the Court felt there was some defect in the Arkansas procedure.

We certainly hope to the Court would recognize the national impact of its rulings and that’s one of the reasons that we wanted to present our position here and that our State Supreme Court has just resolve these questions squarely and upheld the absence of the standards.

Unknown Speaker: How did the courts quit on that, I forgot?

Mr. Albert W. Harris, Jr.: It was four to three, Your Honor.

There is one other face of the differentiation in our system.

Your Honor, after the jury comes to its verdict the trial judge has a power to an emotion for new trial to review all of the evidence, everything in the case.

And determine in his discretion, death sentence having been returned by the jury whether the sentence should be life instead of a death sentence.

He can’t of course go up to death if the jury returns life.

But he can in effect reduce the sentence and that does not have to be because of some error but because of his appraisal of the -- all of the evidence in the case.

Unknown Speaker: Is it your understanding that that is the same in Arkansas or is it different?

Mr. Albert W. Harris, Jr.: No, it was my -- well, in my understanding Your Honor is that it is different but I’m certainly not, I have to rely pretty much on what’s been said by the parties.

I’m not qualified to speak on that.

I don’t think they have that power.

They may have.

We certainly have the power.

It is true that the on appellate review, the Supreme Court of California and that’s where all death penalty cases go in California.

There’s no other review and its automatic in all death cases.

Unknown Speaker: I’m sure the judge in Arkansas must have a power to set aside a judgment.

Unknown Speaker: (Inaudible)

Mr. Albert W. Harris, Jr.: Well, I’m sure he would for --

Unknown Speaker: Under the old theory is, you think it’s so outrageous at all that you want to do so.

I may be and I don’t know?

Do you know?

Mr. Albert W. Harris, Jr.: I wouldn’t want to -- I certainly wouldn’t want to act as if I were an authority Your Honor.

I just don’t know.

Let me put it that way.

I do know that it’s done in California and it doesn’t have to be done for error.

We done simply because the judge in his judgment, but again would no more standards of the jury had to start with things that a life sentence should be imposed.

In addition, there is still a further review and I think it’s important to make sure that there is no that this is not an arbitrary decision passed in a vacuum or something.

There is a review by the trial judge.

There is a review by the state Supreme Court, none of the question of whether it should be a death sentence or a life sentence.

But on the question of any error that may have occurred during the penalty trial and the least error, will the Court reverse it.

Unknown Speaker: The Supreme Court can raise the law of the sentence?

Mr. Albert W. Harris, Jr.: No.

No, they can review the record Your Honor, for error in the penalty trial.

Unknown Speaker: But they can’t just decide?

Mr. Albert W. Harris, Jr.: That’s the view, it’s -- we have one justice now who is of the view that they can in a death case but the established law in California is that they cannot.

Unknown Speaker: There are six under the sentence.

Mr. Albert W. Harris, Jr.: I think it was six, yes.

Now those are some of the things but if I could come back to this basic idea, it seems to me its base on two things.

One is the, as I said, it’s so difficult to attempt to formulate in advance this considerations.

And the result is that a case comes along where you -- where everybody involved feels that the death sentence should not be imposed.

But it may not fall within some predetermined categories.

And when you get into things like pity and sympathy and kindness and compassion, how you can reduce that to any kind of a standard and the due process sense of the statute defining conduct?

I don’t understand in the petitioners haven’t told us.

Again in California, for example the jury is told in the guilt case of the case, any of those two, any case.

You can’t take into account any pity or sympathy you might feel for this defendant no matter how down and obvious you have to decide the facts.

Is he guilty of murder whatever might be robbery, you have to put pity and sympathy out of your mind.

Now, if you’re trying a capital case and they’re given that instruction of a guilt plea then you have to correct that impression in the penalty face because they can’t properly be guided by such things in determining penalty in sentencing just like a trial judge can be take consideration or take these things into consideration.

And unless it’s the position of the appellant, petitioner here, that pity and kindness and compassion should be excluded from the sentencing process and indeed must be excluded as a matter of constitutional law and it seems to me that he can’t prevail.

The Model Code certainly says nothing as I recall about kindness or compassion.

No states to my knowledge has ever enacted standards of a kind that are suggested here, the ones that a Model Penal Code have been around for some time they have never been adopted by anybody.

This discretionary sentencing in capital cases has been with us just like as I pointed out earlier was at the instance of this Court some 70 years ago that the federal courts commenced this procedure.

We’ve known about it, we haven’t been offended by it.

I think the results have been by enlarged, a vital large pretty good with undoubtedly they’re always arguable cases but no court has ever held that this is a constitutional defect in sentencing.

Only two years ago, this Court agreed to adhere to the decision in Williams against New York which in evaluating a sentencing procedures in New York in a capital case permitted the trial judge to consider matters in the probation report and other sources and it considered things that have not been testified to an open court so that in effect the defendant had no right to cross-examine.

The witnesses that -- and the information sources of information that the trial judge considered and in that case, the trial judge in the face of a recommendation of a life sentence by the jury after reviewing these matters that came to him not from the witness stand that by way of reports imposed the death sentence in his good judgment, again without any standards as far as I can tell and this Court affirmed it.

And two years ago, in Patterson -- Specht against Patterson, you said, you’ve given it some thought that you adhered to that decision in Williams against New York and it seems to me they -- that of course the issues are different in this case.

But that the sentencing procedure in Arkansas and the sentencing procedure in California and in the Federal Courts and everywhere in United States as far as I know that this aspect of the sentencing procedure does comport with due process of law and with equal protection of the laws.

The -- there is no problem here in my judgment of undue vagueness in the law.

Granted there are no standard specifically set forth but the definition of the crimes that calls for capital punishment, everywhere is very specific.

Certainly, it’s in Arkansas it is in California those crimes are set forth whatever they might be.

Whether in the first degree, rape, however the legislature wants to apply it.

And the fact that the defendant doesn’t know and indeed no one knows and no one in this room knows whether if he undertakes a murder in the first degree, a jury will ultimately return a death sentence or a life sentence as one of those risks that he has to take in this life.

He doesn’t know if Governor will grant him clemency.

He doesn’t know if the District Attorney and whatever county happens to be in throughout the United States will ask for a death sentence.

He doesn’t even know what the higher Courts may rule in some things that might happen to him in the course of this procedure.

Of course, he doesn’t know these things.

But he knows this if he commits a murder in the first degree.

He is subject to the death penalty.

Now giving the jury the discretion to return a life sentence was the humanitarian step this Court has recognized that and in determining guilt, and there has to be this prior determination of guilt before we ever get around this sentencing.

The defendant has the benefit of all of the constitutional protections.

We don’t see any unfairness in this situation.

We don’t see any uneven application of the law.

The same rule is applicable to everybody that goes before the jury.

Everybody who commits a murder in the first degree or rape in the State of Arkansas, they all have the same opportunity.

Be in fact they even have -- they have a better opportunity to seek a life sentence under the discretionary procedure than they would under any of these conceivable standards.

Here the whole thing is wide open.

Anything that a defense attorney can conceive of to say that might persuade a juror, mind you need a unanimous verdict in this cases.

Think of its one juror that there should be a life sentence why he’s accomplished the purpose and the only bounds are his own imagination and his own ingenuity.

Now again his status are going to limit that.

There is another point here too, I think and I forgot to mention that in our discussion earlier about the California Procedure that it is clear in California that you -- the trial judge can on requests advice the jury about factors that they might consider and references made to the Model Penal Code.

It would have to be made very clear to the jury that these were not controlling in any sense but if that were done, it would certainly, I think the jury could be told of those factors.

They can be told they can take kindness and so forth into account.

So we submit that the mere absence of standards does not in any way make the Arkansas procedure for that reason unconstitutional if there other objections that we don’t share with Arkansas in terms of procedure, I’m sure the Attorney General form Arkansas was prepared to deal with those.

I have just one closing remark, and that is I think that in light of your decision in Witherspoon wherein you recognize that under Illinois law the conscience of the community was focus on this man and what have you done.

And there was no guide given to the jury and you insisted that that jury should be fairly composed and that was undisputed about whether that one was but nevertheless it would have to be fairly composed to reflect the conscience of the community.

That rule in Illinois, in the absence of standards is essentially the same thing.

You have to face an Arkansas on the same thing that we have in California and it seems to me that having recognized that and having -- making sure as you have made sure that the jury must be a fair representation of the community because you are invoke in their conscience.

You're invoking their -- the qualities as I have referred to kindness, compassion, not simply an arid determination of facts but a real judgment in the -- and not on the legal sense but in the general sense.

The judgment of what should be done with this person.

Unknown Speaker: Mr. Harris how was the jury qualified at the trial of this case?

I don’t know because I haven’t seen the transcript.

Mr. Albert W. Harris, Jr.: Well, Your Honor, in our brief, amicus brief, we suggest that the Court should give some consideration to that very point.

The case was tried back in 1962.

We did not at that time have the transcripts.

We thought it was probably a good guess.

There might be a violation of it -- of the Witherspoon rule.

In the meantime and in fact yesterday morning -- excuse me.

I examined the transcript.

It’s right here.

Unknown Speaker: (Inaudible)

Mr. Albert W. Harris, Jr.: Pardon me?

Unknown Speaker: I thought its -- I thought it was back in the Eighth Circuit.

Mr. Albert W. Harris, Jr.: Well, this is a copy, I dont know, it looks like the original to me but here it is.

And I took the opportunity to go over it.

And sure enough there are at least seven jurors about in this.

Unknown Speaker: Witherspoon?

Mr. Albert W. Harris, Jr.: Well, it hasn’t been raised Your Honor.

Hasn’t been raised apparently, any place.

Unknown Speaker: (Inaudible)

Mr. Albert W. Harris, Jr.: Well you came down -- handed down a ruling in Witherspoon which --

Unknown Speaker: I guess it’s been --

Mr. Albert W. Harris, Jr.: This is federal habeas.

Unknown Speaker: This is federal habeas corpus.

Mr. Albert W. Harris, Jr.: I think you could.

I think you could.

I don’t want to --

Unknown Speaker: All that’s being attacked in this case is the sentence of death, it's -- am I right about that?

Not the convciton?

Mr. Albert W. Harris, Jr.: That’s my understanding.

That’s the sentence of death is being attacked and not the conviction, at least at this point.

Unknown Speaker: Well, does the record show --

Unknown Speaker: Well, I don’t want to make its between the State of Arkansas and the attorney for Mr. Maxwell but just been going over it, for example of it there was seven jurors perspective jurors who were excused on this ground that they were opposed capital punishment.

I think you have to look at each one of them and the first one -- this is about all there was in this as to the Mr. McCleary the first man to be excused.

He was asked to entertain any other conscientious scruples about imposing the death penalty.

He -- and he said, “Yes, I am afraid I do.”

And he was excused.

Unknown Speaker: (Inaudible)

Mr. Albert W. Harris, Jr.: Yes.

And then another one said, “I would not sentence the death penalty.”

That I suppose you might argue meant I wouldn’t in any case but it wasn’t spelled out.

There’s another one who said, “No sir, I don’t believe in capital punishment” and went off.

And as I say there are total of four -- a total of seven.

The last one said, “I am against capital punishment.”

I suppose there could be argument on each side as to whether or not this complied with Witherspoon but certainly arguable and it did not.

We think you could reach that.

We think that issue might very well be resolved in favor of the petitioner and that would save him from all that he seeks to get at this point and that is to save his life.

Having that issue, there’s no need that you go into this other question.

But we submit that if you do, we submit --

Unknown Speaker: What you’re saying is that the record shows in your judgment an indication that the Witherspoon would violate --

Mr. Albert W. Harris, Jr.: Yes, sir.

Unknown Speaker: And that I believe that Justice Douglas wrote an opinion several years ago in which he said, “This Court see no reason to send it back to go to a habeas corpus and then unnecessary habeas corpus when the record plainly shows here that some rules have been violated.

Mr. Albert W. Harris, Jr.: Well, of course you don’t have the transcript before you now but I’m sure you could secure it.

Unknown Speaker: That transcript was not --

Mr. Albert W. Harris, Jr.: It’s not part of the appendix, it’s here.

It’s on the table.

It’s not part of the appendix.

Unknown Speaker: It’s here.

Mr. Albert W. Harris, Jr.: It’s printed.

Yes, it is.

Unknown Speaker: Part of the record.

It was before the judges whose judgment we are -- had happen to that and was not part of it in the rule.

But I certainly was for the case in Justice Douglas rule.

We shouldn’t go through a vain and useless cert sending the case back all of the delay that would occur when direct of the matter is plainly before I will notice.

Mr. Albert W. Harris, Jr.: Yes, Your Honor.

Unknown Speaker: Is there any objection by either side to having this transcript before the Court?

Mr. Albert W. Harris, Jr.: We certainly have no objection.

Belongs to Arkansas.

Unknown Speaker: Sustained.

Chief Justice Earl Warren: Mr. Amsterdam?

Rebuttal of Anthony G. Amsterdam

Mr. Anthony G. Amsterdam: We have no objection in having the Court have the transcript before it.

I would like to speak in rebuttal as to the propriety of ruling on the witness per issue.

Chief Justice Earl Warren: Oh, yes.

Rebuttal of Anthony G. Amsterdam

Mr. Anthony G. Amsterdam: We certainly have no objection on the transcript.

Chief Justice Earl Warren: Very well then, if you’ll leave it with the Court, please.

Rebuttal of Albert W. Harris, Jr.

Mr. Albert W. Harris, Jr.: Thank you Mr. Chief Justice.

My time that we’ve been allotted has expired.

Thank you.

Chief Justice Earl Warren: Mr. Langston.

Argument of Don Langston

Mr. Don Langston: May it please the Court.

I checked this transcript out of the Supreme Court Clerk’s Office in Arkansas last Friday with the specific purpose of bringing it here for your consideration.

And I will lodge it with the clerk but I do, whenever you’re finished with it I would like for him to return it.

Chief Justice Earl Warren: You would let?

Rebuttal of Don Langston

Mr. Don Langston: Like for him to return it, at least so that I can file it back in the Supreme Court.

Chief Justice Earl Warren: Yes.

Rebuttal of Don Langston

Mr. Don Langston: I was going to mention about --

Chief Justice Earl Warren: Do you agree this is a proper record?

Rebuttal of Don Langston

Mr. Don Langston: This is the -- this is the original transcript filed in the Arkansas Supreme Court and it has also been considered by this Court on certiorari from the Arkansas Supreme Court.

I see it here marked on it "received September 22, 1966, Office of the Clerk Supreme Court of the United States.”

In Arkansas, we have five crimes which we -- which our legislature has determined or bad enough to require the death sentence.

They -- those are murder in the first degree, rape, kidnapping, treason, and burning of prisons by convicts.

Our law ever since these crimes --

Chief Justice Earl Warren: What was the fourth one?

Unknown Speaker: I’m sorry.

Rebuttal of Don Langston

Mr. Don Langston: Burning of prisons by convicts.

Unknown Speaker: Well, how about the one before it?

Mr. Don Langston: Treason.

Unknown Speaker: Treason.

Oh, I’m sorry.

Mr. Don Langston: In Arkansas these five crimes were originally punishable by death.

That was the only sentence.

It was automatic on the finding of guilt in those particular cases that the person be sentence to death.

But in 1915, our legislature saw fit to allow some discretion by the jury and enacted the statute which allows the jury in its discretion to return in sentence, a life sentence.

In this particular case, the verdict form was at that top of the page it said, “We the jury found the defendant not guilty.”

The second form was, “We, they jury have found the defendant guilty of rape and fixed his punishment at life imprisonment.”

The third form was, “We, the jury found the defendant guilty as charged in the information.”

And when the jury brought in, the verdict saying, “We, the jury found the defendant guilty of rape as charged in the information” that ended their proceedings.

It was then mandatory upon the judge to -- under the law to sentence the defendant to death.

Unknown Speaker: Suppose as I think Mr. Justice Black raised in his colloquy that this judge thought this was outrageous or it shocked his conscience or something like that.

Mr. Don Langston: Your Honor, we didn’t --

Unknown Speaker: Couldn’t he set is aside or sent it back to the jury for reconsideration or something like that?

Mr. Don Langston: Of course, one, he can -- when a motion for new trial is filed for the defendant, he can grant his motion for a new trial and give him a complete new trial.

We didn’t cite it in our brief that --

Unknown Speaker: Any limitations on that?

Because it have to be four errors committed in the trial or can we just say --

Mr. Don Langston: I believe that the defendant could probably say in his motion for new trial that the judgment is contrary to law and that it is excessive and that would be an error.

Unknown Speaker: That it is what?

Mr. Don Langston: That would be an error.

Unknown Speaker: What is --

Mr. Don Langston: That the judgment is contrary to law and that it is excessive.

Unknown Speaker: Oh, excessive, yes.

Unknown Speaker: But it has to be contrary to law.

but what law is it contrary to if it’s just shocks the conscience or to use Mr. Justice Black’s word, outrageous?

Mr. Don Langston: I think that under that he could set it aside just being arbitrary.

I don’t see any recourse that the state would have in appealing case with the Supreme Court of Arkansas on his judgment or setting it aside.

Unknown Speaker: Is that -- but that’s not -- is that acknowledged in any statute or any of decided case?

Or is that just something that judges do when there’s conscience of shock or it’s outrageous?

Mr. Don Langston: There is nothing on the motion for new trial Your Honor.

There’s no case -- reported cases on that.

We do.

I was going to give you a second statute which I think would give the judge the authority to reduce the sentence.

It’s never been passed on by our Supreme Court and we didn’t cite it in our brief and its 43.

It’s Arkansas Statute 43-2310.

That statute reads, I have it here before me, it reads, “The courts, this is the trial court, shall have the power in all cases of conviction to reduce the extent or duration of the punishment assessed by jury if in the opinion of the court the conviction is proper and the punishment assessed is greater than under the circumstances of the case ought to be inflicted so that the punishment be not in any case reduced below the limit prescribed by law in such cases.”

That statute does appear to give him the power to reduce the sentence to life imprisonment and if he so desires.

It’s never been passed on by our court.

Unknown Speaker: I see.

Do you know of any instance in which that power has been exercised?

Mr. Don Langston: I would imagine that it has never been exercised.

I wouldn’t want to speculate on that but ordinarily our judges follow what the jury says.

They’re elected in Arkansas and I imagine they wouldn’t want to go around setting aside jury verdicts because it would look bad.

Unknown Speaker: In whose eyes?

Mr. Don Langston: In the eyes of the community which he is serving and has to run for re-election every four years.

Mr. Amsterdam said something about impeachment in his -- impeachment of a defendant who takes a stand when he was -- when he testifies in his own behalf and I believe he went further than Arkansas procedure allows.

On impeachment, you can’t ask him about all kinds of bad conduct but if he denies it you are bound by his answer.

You cannot.

You cannot introduce independent evidence of that bad conduct.

You have to live with his answer.

Unknown Speaker: Against the charge of perjury?

He lives with his answer plus a charge of perjury.

Mr. Don Langston: I imagine it would, Your Honor.

We think that the Arkansas, that the standards in Arkansas death cases our sit by the statute whenever in a rape case whenever the jury finds that a defendant has carnal knowledge of a female forcibly and against her will that it can bring him the death sentence.

Those standards are the elements of the crime.

Now in its mercy the jury can bring him life imprisonment.

But I would do want to emphasize that the made -- that the penalty actually is death and not life imprisonment.

And that appears that the Arkansas procedures sort of reverse from some of these others.

In California, theirs is the ultimate but ours is the mandatory sentence of death but with the statute, the jury can its discretion recommend life imprisonment with the judge must abide by.

Now in Arkansas, same when the crime of larceny which carries a penalty from 1 to 21 years, all that the jury has before them is the evidence in the definition of the elements of larceny and they can sit that punishment at any point in that extent of time they want to.

There -- the prosecutor gets up there and argues that he ought to have 21 years.

The defense gets up there and argues that he ought to get the minimum sentence.

And the jury then sets it somewhere in between that.

It appears from my reading of the federal statutes that there’s procedure in death sentences as the same as it is in Arkansas, that they have a unitary jury at one jury, and that they bring in the verdict of guilt and fix the punishment at the same time.

So what appears to us that if the Arkansas statutes are stricken down by this Court that the federal rule would also follow with it.

In this case and the transcript going back to the Witherspoon argument that the jury is the conscience of the community and that is a sort of a standard.

The court’s instruction in number 2 on page 3 (a) of this transcript be among other things tells him that in reaching your verdict exercise your judgment, your common sense and reason in passing a bonus case and give the testimony of any and all witnesses such weight as you think it is entitled to and let your verdict be in accordance with the truth and the law.

When the state proved that this person intruded.

When the state proved that Maxwell entered into his victim’s home, beat her up, drove her across the street, and attacked her in the vacant lot in the state proved the case for death.

The only was he can get anything less is for the jury to exercise mercy which he had declined to do under the facts of this case.

Unknown Speaker: Forgive me for this -- raising this, this may not be directly irrelevant, but I always have difficulty when counsel referred to a jury as reflecting the conscience of the community.

Now particularly in this penalty matters, it might very well be that if he took a vote in the community, the prevailing settlement would be to lynch him or hang him or electrocute her or the Lord knows what.

But that -- the material that is there before the jury might indicate a reasonable man who is a human being that some other consequence ought to be attached and one of the fundamental perhaps it’s philosophical are rather than strictly legal, one of the fundamental questions that all of this raises is what the jurors suppose to do.

And I had thought the juror was suppose to bring the bear upon the material before him as comprehended by his senses, his qualities as a human being subject to the law and the standards if and if that were given to him rather than to reflect what might be a community attitude towards rape or murder or this particular fellow.

Mr. Don Langston: Well, of course I think that the jury, I don’t know whether this answers your question or not, but I don’t think the jury can live its conscience outside of the jury box.

I think they take everything in their boxes or prejudices.

Unknown Speaker: No, that’s -- their conscience they bring not -- but not the conscience necessarily the conscience in the sense of a growth of their reaction grossly of the people at large who don’t have before them what the juror is suppose to have before him and that is as I was trying to suggest perhaps not very articulately related to the question that is being argued here namely the question as to whether in bringing to bear his own conscience, his own qualities as a human being, his own comprehension upon the material before him if that’s the jurors function rather than just to reflect the gross reaction of the community.

The juror must as a matter of constitutional principle have the guidance of some standards in at least a philosophical sense that may be may light perhaps at the close to the heart of the issue in this case.

Mr. Don Langston: Of course we don’t -- we think that the standard is said in the statute and we don’t see how you could draft to set the standards that would tell the jury what to do in each particular case, I think the legislature to adopt standards would have to be in session all the time and enact almost ex post facto laws to cover every situation and that is what are our argument is that the only thing that you could -- we don’t think whether to use a weapon or whatever you do makes any difference.

We think that the evidence before the jury that that is the standard that they’re going to go by is the evidence that is presented in the case.

There are no further questions, that’s our case.

Chief Justice Earl Warren: Very well.

Well Mr. Amsterdam.

Rebuttal of Anthony G. Amsterdam

Mr. Anthony G. Amsterdam: Thank you Mr. Chief Justice.

I would like to address three things if I may in rebuttal.

One, the substantive arguments for the States of California and Arkansas, only very briefly.

Two, the Witherspoon question in this case.

And three, the point brought up by California as the differences between California and Arkansas procedure and the relevance of that for disposition of this matter.

My response on this substantive level can be, I think very brief.

As I understand that both California and Arkansas admit that we got an arbitrary procedure going here and they defended simply on the ground that it’s necessary, they can’t do anything else whether it’s beneficial to the defendant.

Both in reading the brief and in hearing the oral argument, I was struck that I heard this argument somewhere before.

And so I look around I found it indeed, I have.

This -- the argument that you have to allow arbitrary discretion so is to individualize on the facts of each individual cases, originally written by William Taylor in 1785.

He was defending the English Bloody Code under which 250 crimes were capital.

And he defended that on the ground that you couldn’t get a narrower formulation.

Just no way I which you could cut down on some of these crimes by fixing standards, taking somewhat might have been careful.

He said, the preference for the English system of having a broad net in which he can make capital punishment available and then letting the Executive commute was in the consideration that the selection of proper objects for capital punishment depends principally upon circumstances which however easy to perceive in each particular case after the crime is committed.

It is impossible to enumerate or define before him and so on.

And he concluded eventually that the Law of England was based on the wise policy of sweeping into the net every crime which under any possible circumstances may marred the punishment of death and then letting individual circumstances furthered out and concluded that the wisdom and humanity of this design furnish a just excuse for the multiplicity of capital offenses which the Laws of England are accused to creating beyond those of other countries as the Bloody Code was justified.

Unknown Speaker: How many capital crimes were there?

Mr. Anthony G. Amsterdam: About 250, Your Honor.

Unknown Speaker: What year was that?

Rebuttal of Don Langston

Mr. Don Langston: He wrote in 1785 originally.

Now, of course weighing indeed go about it was a simply cut back more and more.

They first of all removed the death penalty for stealing from bleaching grounds and then for pickpocketing and then for taking (Inaudible) and what have you.

Until they got it down eventually to murder and then in 1957 notwithstanding the real commissions recommendation which the California cites in its brief saying it was very difficult to get down any narrower as a matter of category English went ahead again.

In 1957, and delimited capital punishment by categories.

Now, the only other thing I think need to answer --

Unknown Speaker: Was that done by parliament or with the court?

Mr. Don Langston: It was done by parliament.

Unknown Speaker: With the court?

Rebuttal of Anthony G. Amsterdam

Mr. Anthony G. Amsterdam: That’s correct.

The only other thing I need to answer to this suggestion that the arbitrary discretion is justified by necessity or beneficence is that it makes an awful difference who you are being beneficent to.

It might well be that you defendants might get a better shake.

A lot of them would get more even handy justice and makes difference whether it was white or black defendants that you’re talking about in terms of whether this are good or bad system.

But in any event I want to emphasize that our argument does not take discretion, compassion, or anything else out of the system.

That is what Mr. Justice Fortas was talking about when he spoke about the next question or the next case.

The question is whether standards can be devised which lead compassion in but narrow the range of discretion beyond what Arkansas allowed and our only contention here is that Arkansas has found the net too broadly and delimited to discretion too little.

We do not contend for mandatory categories which we throw out wisdom and pity and compassion.

We simply contend for rule of law that limits the application of the death penalty much more narrow that Arkansas does.

Now the second thing I want to address myself to is Witherspoon.

I hope that in looking at the transcript of -- what we argue in this case this Court will remember a number of things.

First, Witherspoon has been generally cut to ribbons by the courts below.

And I don’t think the court can likely assume --

Unknown Speaker: By the Courts below are you saying?

They don't --

Mr. Anthony G. Amsterdam: Not Arkansas Your Honor, by every Lower Court that I’ve seen decided Witherspoon case since Witherspoon earlier.

There are dozens of them pending on certiorari here.

The kind of cutting the ribbons I’m talking about is that the lower courts (a) have eased up on the kind of opposition to the death penalty that permits exclusion.

Secondly, they have authorized exclusion where question is asked which the pretty good Witherspoon question but the answer is equivocal.

They authorize exclusion.

Three, they read pre-Witherspoon records and saw they were done in light up Witherspoon assume that the jury is saying something that meets the Witherspoon testing.

Go ahead and let him sit for a number of courts have held that if only a couple of jurors are thrown off under Witherspoon, it doesn’t make it bad as only a couple were here.

Five, The courts have held that if the prosecutor’s remaining pre-emptor challenges exceed the number of juries in question that that sentence doesn’t get vacated under Witherspoon.

I raised all these for this reason.

This case has never had a Witherspoon claim at.

The habeas petition was filed prior to Witherspoon.

The District Court specifically since this is a second federal habeas corpus petition as whether there were other issues in the case.

Witherspoon was never put in here.

The court said, you know I’m going to be very weary about -- weary and wary about entertaining a third.

I just wouldn’t simply assume that this case going to be settled or that Maxwell is going to stay alive for vindication of some Witherspoon claim and again I’m worried about the Witherspoon claims on this record in term unless this Court sets right.

All of the developments of post-Witherspoon law which it made a very limited ruling indeed out of Witherspoon, more than that, Maxwell has been on death row in Arkansas since 1962.

He has twice come within a few days of his death, the last time to be saved only by a stay issued by Mr. Justice White of this Court.

What a lot of courts are doing in light of Witherspoon is the same, we vacate the death since we give them a new trial, new penalty trial now to determine whether he should live or die.

It would be inhumanity second only to killing this man.

Not to resolve the issue now finally presented whether the State of Arkansas has any right to be trying this man for his life under the unconstitutional procedures that we are challenging.

I can appreciate --

Unknown Speaker: I suppose you contemplated the possibility that a proscription of standards may result in more and not fewer death penalties.

Have you got a reaction on that, Mr. Amsterdam?

Mr. Anthony G. Amsterdam: I don’t.

I think I have two reactions to it.

One, I doubt it.

Depends on what standards they are.

And it assumes, it assumes that our argument is an argument for mandatory categories which would take compassion out of the system.

We don’t argue for that.

Unknown Speaker: I’m not -- that’s not what I have in mind.

But necessarily, there is a possibility in a way and the man may reasonably differ as to how important it is that proscribing standards for the imposition of the death penalty may result in more death penalties and would come about if the juries were just left free and do what they choose.

And I assume you have considered that and that you've concluded that it’s not really relevant to legal argument that you make.

Mr. Anthony G. Amsterdam: I have Your Honor and I will add this.

There are to the best of my knowledge, 475 men on death row at this moment in the country, 470 of them were sentence by juries exercising discretion akin to or in some way like Arkansas.

The decision in this case which we asked for would vacate or lay the ground for vacating.

A number of death sentence as we contend are unconstitutional.

The Governor of Arkansas has 14 men on death row whose executions he has held out pending disposition of this case.

This Court has before it petitions for certiorari from Alabama, from New Jersey, from North Carolina, from California raising this issue.

I am very sensitive to the notion that this Court should not decide constitutional questions prematurely.

But if eminent death of dozens of people can make an issue not premature, the issues presented here are not premature.

There is no question of no adversity, there’s enough adversity in this case to float a dozen constitutional issues.

There is not enough.

There’s no question here of an unfocused nature of the issues.

The issues are clearly focused and the question is presented for decision

We suggest that for this Court to put up on speculation of Witherspoon or something else.

The contention between this parties Arkansas contending he has a right to try William M. Maxwell and kill him without standards and are contending that for eight, the better part is six years.

He’s been on death row and for longer than that under jeopardy of death under an unconstitutional regime.

That’s the issue we put this Court.

We ask this Court to decide the Arkansas procedure is unconstitutional for violation of the rule of law and we hope that it will reach and decide the issue in this case.

Thank you.

Chief Justice Earl Warren: We’ll recess now.