Maxwell v. Bishop

CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)
Citation398 F.2d 138
Docket NumberNo. 18746.,18746.
PartiesWilliam L. MAXWELL, Appellant, v. O. E. BISHOP, Superintendent, Arkansas State Penitentiary, Appellee.
Decision Date16 December 1968

Anthony G. Amsterdam, Philadelphia, Pa., for appellant, Jack Greenberg, Norman C. Amaker and Michael Meltsner, New York City, and George Howard, Jr., Pine Bluff, Ark., on the brief.

R. D. Smith, III, Asst. Atty. Gen., State of Arkansas, Little Rock, Ark., for appellee, Joe Purcell, Atty. Gen., State of Arkansas, on the brief.

Before VOGEL, MATTHES and BLACKMUN, Circuit Judges.

Certiorari Granted December 16, 1968. See 89 S.Ct. 488.

BLACKMUN, Circuit Judge.

William L. Maxwell, a Negro and an Arkansas prisoner under sentence of execution on his 1962 conviction for the state crime of rape, as defined by Ark. Stat.Ann. § 41-3401 (Repl. 1964),1 petitions a second time for a federal writ of habeas corpus and, with its denial, a second time appeals. The points now urged to us are (1) that a prima facie case of racially discriminatory imposition of the death penalty for rape in Arkansas has now been established and remains unrebutted by the State; (2) that Arkansas' single verdict procedure is without appropriate standards, allows the jury to exercise its discretion irrationally, and is impermissible; and (3) that the decisions of the United States Supreme Court since Maxwell's first federal appeal demonstrate the error of our prior holding, adverse to the petitioner, on the jury selection issue.2

We again review the background:

1. The offense for which Maxwell was charged was committed in the early morning of November 3, 1961, in the City of Hot Springs, Garland County, Arkansas. Maxwell, who was 21 at the time, was arrested within two hours after the offense was committed. His convicting jury did not "render a verdict of life imprisonment in the State penitentiary at hard labor", as it had the option to do since 1915 (Acts 1915, No. 187, § 1, p. 774) under §§ 43-2153 and 41-3403 and for which it had been given an alternate verdict form. Accordingly, and in line with the interpretation consistently given the statutes by the Supreme Court of Arkansas, Kelley v. State, 133 Ark. 261, 202 S.W. 49, 54 (1918); Stewart v. State, 233 Ark. 458, 345 S.W.2d 472, 475 (1961), cert. denied 368 U.S. 935, 82 S.Ct. 371, 7 L.Ed.2d 197, the trial court imposed the death sentence.

2. Maxwell appealed. On this state appeal he challenged the sufficiency of the evidence; his prosecution by information; the constitutionality in application of the penalty statute, § 41-3403; the denial of his motion that his case be removed to federal court; the overruling of certain objections relating to voir dire; the overruling of objections as to latitude in his cross-examination of witnesses; the admission of evidence; the instructions; and aspects of the prosecution's argument to the jury. All these points were decided adversely to the defense and the judgment of conviction was affirmed by a unanimous Supreme Court of Arkansas (one justice not participating). Maxwell v. State, 236 Ark. 694, 370 S.W.2d 113 (1963). No petition for certiorari was filed with the Supreme Court of the United States.3

3. Maxwell, with new counsel, then filed a petition for a writ of habeas corpus in the United States District Court for the Eastern District of Arkansas. In that petition, as twice amended, he alleged the illegality of his arrest; impropriety of the search of his person; impropriety of the search of his home; mistreatment by the police; coerced confessions; an adverse and hostile trial atmosphere; racial discrimination in the selection of his jury; unconstitutional application of § 41-3403; and unconstitutionality of the death penalty for rape. Judge Young decided each point so raised adversely to the defense and denied the petition. His detailed opinion is reported as Maxwell v. Stephens, 229 F.Supp. 205 (E.D.Ark.1964).

4. Judge Young, however, granted the certificate of probable cause required by 28 U.S.C. § 2253 and stayed execution. With additional counsel from New York, an appeal was taken to this court. We noted that, except for an early period prior to the state trial, when court-appointed attorneys were in the case, Maxwell had been represented through all the state and federal proceedings by competent, although different, non-court-appointed counsel. The points primarily argued to us were three: (1) that Maxwell was denied due process and equal protection because he was sentenced under statutes which are discriminatorily enforced against Negroes; (2) that he was denied due process and equal protection because the Garland County jury lists revealed race and were compiled from racially designated poll tax books; and (3) that the taking of Maxwell's coat and references to it in testimony at the trial violated his Fourth, Fifth and Fourteenth Amendment rights. In what we thought was an opinion meticulously concerned with the several issues raised by Maxwell, we reached the conclusion that Judge Young's decision was correct. Maxwell v. Stephens, 348 F.2d 325 (8 Cir. 1965). The late Judge Ridge dissented on the search and seizure issue concerning the coat but agreed with all the other conclusions arrived at by the majority.

5. With still another name added to the list of Maxwell's counsel, a petition for certiorari was filed. This was denied, with Mr. Justice Douglas being of the opinion that certiorari should be granted. 382 U.S. 944, 86 S.Ct. 387, 15 L.Ed.2d 353 (1965).

6. Execution was rescheduled but was stayed administratively until September 2, 1966.

7. Maxwell's second and present petition for a federal writ of habeas corpus was filed July 21, 1966, in the United States District Court for the Eastern District of Arkansas and came before Chief Judge Henley. The court denied the petition. Maxwell v. Bishop, 257 F.Supp. 710 (E.D.Ark.1966).

8. The district court and a judge of this court successively declined to grant a stay of the execution or to issue a certificate of probable cause. But the Supreme Court granted leave to file a petition for a writ of certiorari, issued the writ, reversed the denial of the application for the certificate, and remanded the cause with directions to issue it. Maxwell v. Bishop, 385 U.S. 650, 87 S.Ct. 768, 17 L.Ed.2d 671 (1967). Accordingly, the certificate was issued and the execution stayed, and the case is here on appeal.

As we observed before, pp. 327-328 of 348 F.2d, Maxwell's guilt or innocence is not in issue before us. So far as the details of the crime itself are concerned, we recite only what we said there:

"The circumstances and details of the crime are, as usual, sordid. They are set forth in the Arkansas opinion, pp. 114-116 of 370 S.W.2d, and need not be repeated here. It suffices only to say that the victim was a white woman, 35 years old, who lived with her helpless ninety-year-old father; that their home was entered in the early morning by the assailant\'s cutting or breaking a window screen; that in the ensuing struggle the victim bit her assailant and caused bleeding; and that she was assaulted and bruised, her father injured, and the lives of both threatened. Confessions taken from Maxwell were not employed at the trial. The defense presented no evidence. The jury was out several hours. No question is raised as to the sufficiency of the evidence."
The Statistical Argument

Maxwell's present argument that Arkansas discriminates against Negroes in the application of the death penalty for rape, and thus violates the Equal Protection Clause and also 42 U.S.C. § 1981, rests on what is described as newly discovered evidence which became available since this court's disposition of Maxwell's first habeas appeal. It is said, in the words of the petition:

"This evidence consists of the results of a survey of rape convictions during the period 1945-1965 in a representative sample of nineteen counties comprising more than 47% of the population of the State of Arkansas. The survey was conducted in the summer of 1965, as part of a study of the application of the death penalty for rape in eleven southern states. This comprehensive study required the work of 28 law students throughout the summer, the expenditure of more than $35,000 and numerous hours of consultative time by expert criminal lawyers, criminologists and statisticians. Petitioner, who is an indigent, could not have himself at any time during the prior proceedings in his cause conducted such a study."

The record and the evidence. At a pretrial conference the district court was advised that the evidence to be presented on behalf of Maxwell was that which resulted from the survey and study so described,4 and that it would be presented through the testimony of Marvin Wolfgang, a criminologist-statistician on the faculty of the University of Pennsylvania. It was agreed in pretrial that the survey's individual case schedules would be made available for inspection by counsel for the State. The court ruled that, subject to objections as to relevancy and materiality, Professor Wolfgang would be permitted to testify as an expert and to introduce his report as a summary exhibit. The State filed no objection to any of the individual case schedules. At the ensuing hearing the State agreed that the basic facts of the schedules, "that is, the age of the victim, the race, and so on, of the individual defendants, or the alleged victims", would stand admitted. Dr. Wolfgang then was called as a witness.

Dr. Wolfgang possesses the degree of Doctor of Philosophy in Sociology, with Criminology as a sub-field. He is Professor and graduate chairman of the Department of Sociology at the University of Pennsylvania. He is co-director of the Department's Criminological Center. He obviously is a man of scholastic achievement and of experience in his field. The State concedes that his "qualifications as a criminologist have never...

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  • State v. Sanders
    • United States
    • North Carolina Supreme Court
    • 12 Junio 1970
    ...without merit unless the United States Supreme Court should overrule our present practice by its decision in the case of Maxwell v. Bishop, 398 F.2d 138 (8th Cir., 1968), cert. granted December 16, 1968, 393 U.S. 997, 89 S.Ct. 488, 21 L.Ed.2d 462, pending in that Court at the time defendant......
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    ...discriminatory treatment by the decision-makers who made the judgments in question. Adams v. Wainwright, supra; Maxwell v. Bishop, 398 F.2d 138 (8th Cir.1968) (Blackmun, J.), vacated on other grounds, 398 U.S. 262, 90 S.Ct. 1578, 26 L.Ed.2d 221 The third general statistical convention is th......
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    ...the issue. See, e.g., In re Ernst, 294 F.2d 556 (CA3 1961); Florida ex rel. Thomas v. Culver, 253 F.2d 507 (CA5 1958); Maxwell v. Bishop, 398 F.2d 138 (CA8 1968), vacated on other grounds, 398 U.S. 262, 90 S.Ct. 1578, 26 L.Ed.2d 221 (1970); Sims v. Eyman, 405 F.2d 439 (CA9 1969); Segura v. ......
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    ...statistics and absence of explanation); Hernandez v. Texas, 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866 (1954) (same); Maxwell v. Bishop, 398 F.2d 138, 141-148 (8th Cir. 1968), rev'd on other grounds, 398 U.S. 262, 90 S.Ct. 1578, 26 L.Ed.2d 221 (1970) (racial discrimination in application of d......
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1 books & journal articles
  • David Baldus and the Legacy of McCleskey v. Kemp
    • United States
    • Iowa Law Review No. 97-6, October 2012
    • 1 Octubre 2012
    ...County are known and have been recited. Standing by themselves, they 1. Maxwell v. Bishop, 257 F. Supp. 710 (E.D. Ark. 1966), aff’d , 398 F.2d 138 (8th Cir. 1968), vacated , 398 U.S. 262 (1970). 2. Marvin E. Wolfgang & Marc Riedel, Race, Judicial Discretion, and the Death Penalty , 407 AM. ......

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