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>> Mr. Chief Justice Warren: Number 622, William L. Maxwell, petitioner versus O.E. Bishop,
Superintendent, Arkansas State Penitentiary. Mr. Amsterdam.
>> 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 *** 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 ***, 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 *** 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 *** 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 *** and requiring that selection must in fact be made among
the total number of persons convicted of *** of some smaller number who shall suffer death,
the extreme penalty for that crime. Now, its not surprising that such a selective
process is set in motion by Arkansas law because the crime of *** is in Arkansas as elsewhere.
A crime that includes a wide range of factual situations, it is simply any consummated ***
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 *** 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 *** 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
*** 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 *** 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 ***, the
jury is guided as it is in any criminal case by the law defining the crime of *** and
the trial in the capital case in Arkansas is not unusual in this regard.
The jury cant convict the defendant simply because they dont like him or because hes
unpleasant or because they dont 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 *** 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 theyre 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 *** 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 doesnt 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 *** 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. >> Mr. Chief Justice Warren: Well recess now
Mr. Amsterdam. You may continue your argument.
>> 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.
Theres 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. Its 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 defendants 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. Its 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 isnt told that
they may return a verdict against the defendant if they dont like him or if theres 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. Theres 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?
>> Anthony G. Amsterdam: Is your asking of capital sentencing or regular sentencing?
>> Unknown Speaker: Neither one. >> 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?
>> 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, theres 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?
>> Anthony G. Amsterdam: I think thats 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, its not true of the capital sentencing decision.
Its 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? >> Anthony G. Amsterdam: You know our statutes
that do, do that in some states but the model sentencing --
>> Unknown Speaker: Not great normal, isnt it?
>> 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 --
>> Byron R. White: This recent practice and the accumulation of this from experience.
>> 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? >> 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. >> Anthony G. Amsterdam: Your Honor, that
is the standard though. If everyone who is convicted of a given crime
is sentence to death, you dont 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. >> 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 couldnt sterilize thieves if you didnt sterilize embezzlements.
I think that nobody on the unanimous court have decided that case assume that indeed
the opinions of the contrary that you couldnt sentence embezzlers to 15 years and certain
thieves to 10. At that level of discrimination or determination,
theres no question about distinguishing between embezzlers and thieves.
When you sterilize them or when you kill them, thats something else again.
The second consideration I think is that and this goes to Mr. Justice Whites 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 youre 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 theres 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?
>> Anthony G. Amsterdam: Your Honor, Im simply saying that this case doesnt present that
question. My personal view is that there is a grave
constitutional deficiency in such a system. >> Unknown Speaker: Thats what in order to
find out. I know this case doesnt present quite that
but I take it that the theory that youre 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. >> 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 theres 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 courts 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?
>> 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 wont be any misunderstanding again as far as Im
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?
>> Anthony G. Amsterdam: I am not saying that the Constitution does not require standards
to be judge. Im --
>> Unknown Speaker: Would you say-- >> Anthony G. Amsterdam: Saying only that
this case does not raise it. >> Unknown Speaker: Thats 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? >> Anthony G. Amsterdam: That is correct.
>> 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. >> 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. Thats one of the factors that makes the discretion
given juries in death cases totally arbitrary with no restraint, no protection against us.
Now, Im not passing at this point beyond the standards argument.
I launch to offend this and the court simply of describing the standard was trial.
Id 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 doesnt 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 doesnt say, I didnt do it.
If he gets on the stand and he does testify that he didnt 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?
>> 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 *** who took the stand was impeached by showing
that he had committed a prior ***. Its relevance to credibility is questionable
but its prejudiced on the guilt issue as obvious. Now this is the kind of thing for which he
lets himself in if he takes the stand. On the other hand, if he doesnt 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 jurys 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 *** covers can cover a very wide spectrum actually of human conduct.
As far as I can see, we dont have anything of the facts of this case.
We dont have the trial transcript. We dont have any description what the actual
conduct was here and I suppose that the theory of Arkansas might be wrongly as that the jurys
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 dont adhere at all. I wondered if it is available.
>> Anthony G. Amsterdam: I would say the facts are described in the Arkansas Supreme Courts
opinion in 370 S.W.2nd and I think this Court could notice the facts described in it.
>> Unknown Speaker: We dont have a transcript of the trial of this?
>> 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 dont know. >> Unknown Speaker: Well I suppose that --
>> Anthony G. Amsterdam: Its 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 thats about all here. And so I suppose the theory must be that its
so to exercise its sentencing discretion based upon where its heard from the witness stand
with respect to circumstance of this statutory violation.
>> Anthony G. Amsterdam: I suppose that might be.
The proof doesnt 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? >> Anthony G. Amsterdam: We would not know
from the trial record Maxwell. >> Unknown Speaker: He did not take the stand?
>> 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.
>> 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. >> 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 its 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 its a public record that which we could take.
>> Anthony G. Amsterdam: Oh yes and I dont think theres indeed, we've going to the point
of actually in our appendix say according portion of it none otherwise because they
think its non-controversial and it is a public record of course.
>> Unknown Speaker: And its now lodge so far as you know with the Eighth Circuit Court
of Appeals? >> Anthony G. Amsterdam: I dont know when
its 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 jurys 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 doesnt 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? >> Anthony G. Amsterdam: It is not Your Honor.
>> Unknown Speaker: There is not difference. >> 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)?
>> 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.
Im quick to admit of most jurisdictions. Now there are differences in terms of there
were degree of reviewability of the jurys 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.
>> William J. Brennan: Well, almost everywhere (Inaudible)?
>> Anthony G. Amsterdam: Pardon me, Mr. Justice Brennan?
>> William J. Brennan: Does the procedure anywhere differ materially from the Arkansas
procedure? >> 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 Ive 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: Im 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.
>> Anthony G. Amsterdam: The only -- >> Unknown Speaker: Im just wondering.
Is there any jurisdiction where the regime in that regard is substantially different
from what it is in Arkansas as you described? >> 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 Honors 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 cant decide this so Im 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 couldnt be caught said the District Court because the factors that go into the jurys
decision case by case are so intangible, so difficult to catch on to that you cant 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 dont 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 Maxwells theory probably didnt discriminate. Again, how do you know?
Theres no way. The jury didnt 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 cant
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 ***
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.
Its 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 its
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 its not involved in this case. But it probably is the next step if you prevail
here. >> 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? >> 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.
>> 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 wouldnt matter whether they were done legislatively or judicially and I would think its a matter
of state policy. It would be quite improper for a court to
promulgate this justice I as I was going to suggest, Im 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 thats a matter of legislative. >> Unknown Speaker: I understand that but
so far as Im concerned thats 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.
>> 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 thats 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 *** and
not *** and so its of no use particularly in drafting a *** 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 *** might put standards into a sentencing
statute. One way, they might go about it is in the
manner I suggested in describing what Arkansas didnt 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 thats one approach. >> Unknown Speaker: It would say the diffuculty
that that raises Im sure its obvious to you is that suppose a legislature says, Oh, no,
no, no Mr. Amsterdam, thats not what we mean. We mean any of the kind of ***.
>> Anthony G. Amsterdam: Then -- >> Unknown Speaker: In other words, what youre
talking about is standards which in effect redefine the crime.
>> Anthony G. Amsterdam: Well, -- >> Unknown Speaker: Im 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 its 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 youre really saying to the legislature no.
You may not impose the death penalty except for this kind of ***.
>> Anthony G. Amsterdam: No, I dont think thats necessarily so.
I have trouble in conceiving the matter that way for two reasons.
One, the Arkansas legislature hasnt release any other kind of ***.
It said that that penalty is available for any other kind of *** but we dont really
expect that it will be impose of any other kind of ***.
Its going to be imposed either wholly or arbitrarily or in some set of sub-classes and its 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 *** 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, Id 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 Ive 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? >> 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 thats 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?
>> 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?
>> Anthony G. Amsterdam: I would assume. If I may, --
>> Unknown Speaker: Excuse me. Im 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. >> 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. >> Potter Stewart: As --
>> 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. >> 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 *** 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.
Ive 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.
>> 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. Thats not so in Arkansas.
If I may -- >> Potter Stewart: So far as it appears, they
can argue anything? They could argue anything I suppose.
>> Anthony G. Amsterdam: So far as I know, there is no -- there has been no reported
decision challenging a prosecutors argument or sustaining a defense counsels 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. If I may just add to one question.
Getting back to your colloquy with Justice White, I know that your position that this
question isnt here in this case. But suppose we had a legislature say in a
trial for the crime of ***. 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.
Thats all the statute says. Would that standard be unconstitutional?
>> 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.
>> Anthony G. Amsterdam: Oh, I must therefore Your Honor.
I think thats not so every *** crime is a serious crime theres 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?
>> 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 isnt 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 doesnt think about that.
Jury doesnt 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 thats relevant.
The jury does goes out and decides. But maybe they dont like to follow the defendant.
May sense some, yes. >> Thurgood Marshall: I dont know whether
they count this or not. Whats 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? >> 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. >> Thurgood Marshall: But thats not question.
>> Anthony G. Amsterdam: Im sorry. >> 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 *** cases or any other case, period?
>> Anthony G. Amsterdam: If they did that? >> Thurgood Marshall: Could have been.
>> Anthony G. Amsterdam: Yes. >> Thurgood Marshall: Why?
>> Anthony G. Amsterdam: Well, although its 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 theres not quite as that in the jury because a judge --
>> Thurgood Marshall: It would offset in many a criminal statute?
Now in existence or do you limit it to *** cases.
>> Anthony G. Amsterdam: Im not sure I understand the question, Your Honor.
>> Thurgood Marshall: Well, embezzlement. The judge now sentences without any standards,
right? >> Anthony G. Amsterdam: Non-capital, yes,
Your Honor. >> Thurgood Marshall: Yes, without any standards.
>> Anthony G. Amsterdam: That is correct. >> Thurgood Marshall: And that can run from
zero to a hundred years. >> Anthony G. Amsterdam: A hundred years in
some offenses. >> Thurgood Marshall: Well, exactly, consecutive
sentences. >> Anthony G. Amsterdam: Oh, Yes, Your Honor
certainly. >> Thurgood Marshall: Without any standards.
>> Anthony G. Amsterdam: Except those which are assumed within the preconditions of the
judicial role or which emerged form the fact that its 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. >> 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. >> Thurgood Marshall: You limit it to -- for
this case you are perfectly right to limit that that face is?
>> Anthony G. Amsterdam: For this case, I have no intentions to go and step behind.
>> Thurgood Marshall: Well I dont see why you should go further than that.
>> 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: Its 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, isnt that correct?
>> Anthony G. Amsterdam: It was not a constitutional assumption.
It was assumption as to what Illinois law required.
If a state, -- >> Unknown Speaker: Committed?
>> 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 dont know whether this or not.
But if that is, would that take care of the requirement as you see it?
>> 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 wouldnt satisfy
a constitutional requirement by a sort of its backwards if you will.
But the finding circumstances are much less than the death penalty may be given.
>> 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 dont know whether Maxwell has to diminish
responsibility or anything else because it couldnt 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. >> Mr. Chief Justice Warren: Mr. Amsterdam,
your time has expired but you may have five minutes to close if you will -- if you wish.
>> Anthony G. Amsterdam: Id prefer to reserve it if Im right for rebuttal.
Ive gone a way and I would not take the -- >> Mr. Chief Justice Warren: You dont have
anything to reserve but I said if you wanted to take five minutes in rebuttal, you might
do it. >> Anthony G. Amsterdam: Thank you very much.
>> Mr. Chief Justice Warren: And of course, counsel may have five minutes to work also.
Mr. Harris. >> Albert W. Harris, Jr.: Mr. Chief Justice,
may it please the Court. Im 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.
Thats the common element we share and thats why were here and thats why were concerned
about this case. >> Unknown Speaker: You have this hypothetical
ground? >> 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? Same jury?
>> Albert W. Harris, Jr.: Normally its 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?
>> Albert W. Harris, Jr.: Yes, it is. >> Unknown Speaker: There's no discretion
to say in this case, were just going to have a single jury --
Oh, no. In order to determine at the same time.
>> 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?
>> Albert W. Harris, Jr.: Well, its 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 dont know. >> Unknown Speaker: Up to this time?
Not longer than that? Up to that time what kind of trial do they
have? >> Albert W. Harris, Jr.: Pardon me, Your
Honor? >> Unknown Speaker: Up to that time, what
kind of trial was it? >> 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? >> Albert W. Harris, Jr.: In California?
At the present time. >> Unknown Speaker: Yes.
>> Albert W. Harris, Jr.: Yes, we do. >> Unknown Speaker: And jury sentencing in
any of them or not? >> Albert W. Harris, Jr.: Very, very little
jury sentencing. It wasnt a great a while.
>> Unknown Speaker: Okay. >> 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? >> Albert W. Harris, Jr.: Well, thats one
of the reasons that were 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.
>> Albert W. Harris, Jr.: Well, thats right. >> Unknown Speaker: Members of the community?
>> Albert W. Harris, Jr.: Thats 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 its 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.
Theyre 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 hes examined the defendant and is familiar with criminal characters and is in his judgment
this man can be rehabilitated. Now, theres 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 its tied into the lack of standards,
we meet that very well in California. Now, Im not so sure its 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 thats 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 hasnt been a good
one hell suffer for it in the penalty trial. Theres no question about it.
And it can be very difficult for the defendant whether or not in the long run its better
to bifurcate or whether its better and gives the defendant a better shot at it to let it
all go in one trial, limit the jury to whats admissible on the *** charge or *** 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?
>> 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 wont 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 defendants 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. Its the law of the state that every person
guilty of *** in the first degree shall suffer death or confinement in the state prison
for life at the discretion of the jury. And then theyre told they have to indicate
in their verdict which of the two either death as its put here or life they prefer.
And then theyre told theres 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?
>> Albert W. Harris, Jr.: I dont --it certainly not set forth in full Your Honor.
It may be referred to. >> Unknown Speaker: Could that be left filed
with this please. >> Albert W. Harris, Jr.: Id 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? >> Albert W. Harris, Jr.: Pardon me?
>> Unknown Speaker: What gives the special instruction on that subject?
>> Albert W. Harris, Jr.: Well, thats -- see, it's quite a long one Your Honor --
>> Unknown Speaker: I mean theres a substitute or something?
>> 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 its up to the adult authority to
determine thats a separate agency in California to determine when if ever he is released and
in general, youre not suppose to be concerned about that anyhow.
Theyll do their job. Properly, you do your job properly.
Thats the gist of it. That he can be paroled but they shouldnt enter
into your considerations as yours. I -- we submit that the California procedure
and I think its 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 didnt want to decide the hard question of who should
be executed and who shouldnt be. But I dont 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 cant reduced to a formula.
>> Unknown Speaker: Well, its 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 Californias on the other because its at least arguable.
I should think that under the California procedure, whether or not you say there are standards,
the jurys 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.
>> Albert W. Harris, Jr.: Well I certainly didnt 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 thats 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? >> 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 cant 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?
>> Albert W. Harris, Jr.: No, it was my -- well, in my understanding Your Honor is that it
is different but Im certainly not, I have to rely pretty much on whats been said by
the parties. Im not qualified to speak on that.
I dont 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 thats where all death penalty cases go in California.
Theres no other review and its automatic in all death cases.
>> Unknown Speaker: Im sure the judge in Arkansas must have a power to set aside a judgment.
(Inaudible) >> Albert W. Harris, Jr.: Well, Im sure he
would for -- >> Unknown Speaker: Under the old theory is,
you think its so outrageous at all that you want to do so.
I may be and I dont know? Do you know?
>> Albert W. Harris, Jr.: I wouldnt want to -- I certainly wouldnt want to act as if I
were an authority Your Honor. I just dont know.
Let me put it that way. I do know that its done in California and
it doesnt 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 its 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?
>> Albert W. Harris, Jr.: No. No, they can review the record Your Honor,
for error in the penalty trial. >> Unknown Speaker: But they cant just decide?
>> Albert W. Harris, Jr.: Thats the view, its -- 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. >> 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, its 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 dont understand in the petitioners havent 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 cant 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 *** whatever might be robbery,
you have to put pity and sympathy out of your mind.
Now, if youre trying a capital case and theyre given that instruction of a guilt plea then
you have to correct that impression in the penalty face because they cant 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 its 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 cant 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.
Weve known about it, we havent been offended by it.
I think the results have been by enlarged, a vital large pretty good with undoubtedly
theyre 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, youve 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, its in Arkansas it is in California
those crimes are set forth whatever they might be.
Whether in the first degree, ***, however the legislature wants to apply it.
And the fact that the defendant doesnt know and indeed no one knows and no one in this
room knows whether if he undertakes a *** 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 doesnt know if Governor will grant him
clemency. He doesnt know if the District Attorney and
whatever county happens to be in throughout the United States will ask for a death sentence.
He doesnt 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 doesnt know these things.
But he knows this if he commits a *** 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 dont see any unfairness in this situation. We dont see any uneven application of the
law. The same rule is applicable to everybody that
goes before the jury. Everybody who commits a *** in the first
degree or *** 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 hes 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 dont share with Arkansas
in terms of procedure, Im 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 dont know because I havent seen the transcript. >> 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. Its right here.
>> Unknown Speaker: (Inaudible) >> Albert W. Harris, Jr.: Pardon me?
>> Unknown Speaker: I thought its -- I thought it was back in the Eighth Circuit.
>> 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? >> Albert W. Harris, Jr.: Well, it hasnt been
raised Your Honor. Hasnt been raised apparently, any place.
>> Unknown Speaker: (Inaudible) >> Albert W. Harris, Jr.: Well you came down
-- handed down a ruling in Witherspoon which --
>> Unknown Speaker: I guess its been -- >> Albert W. Harris, Jr.: This is federal
habeas. >> Unknown Speaker: This is federal habeas
corpus. >> Albert W. Harris, Jr.: I think you could.
I think you could. I dont want to --
>> Unknown Speaker: All thats being attacked in this case is the sentence of death, it's
-- am I right about that? Not the convciton?
>> Albert W. Harris, Jr.: Thats my understanding. Thats the sentence of death is being attacked
and not the conviction, at least at this point. >> Unknown Speaker: Well, does the record
show -- Well, I dont 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. (Inaudible)
>> 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 wouldnt
in any case but it wasnt spelled out. Theres another one who said, No sir, I dont
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, theres no need that you
go into this other question. But we submit that if you do, we submit --
>> Unknown Speaker: What youre saying is that the record shows in your judgment an indication
that the Witherspoon would violate -- >> 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. >> Albert W. Harris, Jr.: Well, of course
you dont have the transcript before you now but Im sure you could secure it.
>> Unknown Speaker: That transcript was not --
>> Albert W. Harris, Jr.: Its not part of the appendix, its here.
Its on the table. Its not part of the appendix.
>> Unknown Speaker: Its here. >> Albert W. Harris, Jr.: Its 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 shouldnt 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. >> Albert W. Harris, Jr.: Yes, Your Honor.
>> Unknown Speaker: Is there any objection by either side to having this transcript before
the Court? >> Albert W. Harris, Jr.: We certainly have
no objection. Belongs to Arkansas.
>> Unknown Speaker: Sustained. >> Mr. Chief Justice Warren: Mr. Amsterdam?
>> 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. >> Mr. Chief Justice Warren: Oh, yes.
>> Anthony G. Amsterdam: We certainly have no objection on the transcript.
>> Mr. Chief Justice Warren: Very well then, if youll leave it with the Court, please.
>> Albert W. Harris, Jr.: Thank you Mr. Chief Justice.
My time that weve been allotted has expired. Thank you.
>> Mr. Chief Justice Warren: Mr. Langston. >> Don Langston: May it please the Court.
I checked this transcript out of the Supreme Court Clerks 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 youre finished with it I would like
for him to return it. >> Mr. Chief Justice Warren: You would let?
>> Don Langston: Like for him to return it, at least so that I can file it back in the
Supreme Court. >> Mr. Chief Justice Warren: Yes.
>> Don Langston: I was going to mention about --
>> Mr. Chief Justice Warren: Do you agree this is a proper record?
>> 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 *** in the first degree,
***, kidnapping, treason, and burning of prisons by convicts.
Our law ever since these crimes -- >> Mr. Chief Justice Warren: What was the
fourth one? >> Unknown Speaker: Im sorry.
>> Don Langston: Burning of prisons by convicts. >> Unknown Speaker: Well, how about the one
before it? >> Don Langston: Treason.
>> Unknown Speaker: Treason. Oh, Im sorry.
>> 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 *** 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 *** 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. >> Don Langston: Your Honor, we didnt --
>> Unknown Speaker: Couldnt he set is aside or sent it back to the jury for reconsideration
or something like that? >> 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 didnt 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 -- >> 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?
>> Don Langston: That would be an error. >> Unknown Speaker: What is --
>> Don Langston: That the judgment is contrary to law and that it is excessive.
>> Unknown Speaker: Oh, excessive, yes. But it has to be contrary to law.
but what law is it contrary to if its just shocks the conscience or to use Mr. Justice
Blacks word, outrageous? >> Don Langston: I think that under that he
could set it aside just being arbitrary. I dont 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 thats not
-- is that acknowledged in any statute or any of decided case?
Or is that just something that judges do when theres conscience of shock or its outrageous?
>> Don Langston: There is nothing on the motion for new trial Your Honor.
Theres 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. Its never been passed on by our Supreme Court
and we didnt cite it in our brief and its 43.
Its 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. Its never been passed on by our court.
>> Unknown Speaker: I see. Do you know of any instance in which that
power has been exercised? >> Don Langston: I would imagine that it has
never been exercised. I wouldnt want to speculate on that but ordinarily
our judges follow what the jury says. Theyre elected in Arkansas and I imagine they
wouldnt want to go around setting aside jury verdicts because it would look bad.
>> Unknown Speaker: In whose eyes? >> 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 cant 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.
>> 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 *** 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 theres 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 courts 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 victims 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 its 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 *** or *** or this particular
fellow. >> Don Langston: Well, of course I think that
the jury, I dont know whether this answers your question or not, but I dont 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, thats -- 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 dont 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 thats 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. >> Don Langston: Of course we dont -- we think
that the standard is said in the statute and we dont 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 dont 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 theyre going to go by is the evidence that is presented
in the case. There are no further questions, thats our
case. >> Mr. Chief Justice Warren: Very well.
Well Mr. Amsterdam. >> 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 its necessary, they cant do anything
else whether its 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 couldnt 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?
>> Anthony G. Amsterdam: About 250, Your Honor. >> Unknown Speaker: What year was that?
>> 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 ***
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? >> Don Langston: It was done by parliament.
>> Unknown Speaker: With the court? >> Anthony G. Amsterdam: Thats 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 youre 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 dont think the court can likely assume
-- >> Unknown Speaker: By the Courts below are
you saying? They don't --
>> Anthony G. Amsterdam: Not Arkansas Your Honor, by every Lower Court that Ive seen
decided Witherspoon case since Witherspoon earlier.
There are dozens of them pending on certiorari here.
The kind of cutting the ribbons Im 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 doesnt make it bad as only a couple were here.
Five, The courts have held that if the prosecutors remaining pre-emptor challenges exceed the
number of juries in question that that sentence doesnt 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 Im going to be very
weary about -- weary and wary about entertaining a third.
I just wouldnt 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 Im 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? >> Anthony G. Amsterdam: I dont.
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 dont argue for that. >> Unknown Speaker: Im not -- thats 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 its not really
relevant to legal argument that you make. >> 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, theres
enough adversity in this case to float a dozen constitutional issues.
There is not enough. Theres 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.
Hes been on death row and for longer than that under jeopardy of death under an unconstitutional
regime. Thats 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. >> Mr. Chief Justice Warren: Well recess now.