Petitioner challenged his jury conviction for rape and the sentence of death imposed pursuant to Arkansas law on the grounds that (1) the jury had determined the issues of guilt and sentencing in a single proceeding, thus precluding him from presenting evidence on the penalty issue without subjecting himself to self-incrimination on the guilt issue, and (2) the jury had been given no standards to guide it in sentencing. The District Court denied a writ of habeas corpus and the Court of Appeals affirmed. Several prospective jurors had been removed for cause from the panel "because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction," which this Court held impermissible in Witherspoon v. Illinois, 391 U.S. 510 , decided after petitioner's trial. Held: Although the Witherspoon issue was not raised below, the case is remanded to the District Court for consideration of that issue. Boulden v. Holman, 394 U.S. 478 .
398 F.2d 138, vacated and remanded.
Anthony G. Amsterdam argued the cause for petitioner on the original argument and on the reargument. With him on the briefs were Jack Greenberg, James M. Nabrit III, Norman C. Amaker, Michael Meltsner, Elizabeth DuBois, and George Howard, Jr.
Don Langston, Deputy Attorney General of Arkansas, argued the cause for respondent on the original argument and on the reargument. With him on the brief was Joe Purcell, Attorney General.
Albert W. Harris, Jr., Assistant Attorney General, argued the cause for the State of California as amicus curiae on the original argument and on the reargument. With him on the brief were Thomas C. Lynch, Attorney [398 U.S. 262, 263] General, and Robert R. Granucci and George R. Nock, Deputy Attorneys General. Briefs of amici curiae were filed by Elmer Gertz and Willard J. Lassers for the American Civil Liberties Union, Illinois Division, et al.; by Sol Rubin and Samuel B. Waterman for the National Council on Crime and Delinquency; by Leo Pfeffer, Marvin Braiterman, Morris Dershowitz, Will Maslow, Joseph B. Robison, and George Soll for the Synagogue Council of America et al.; by Messrs. Gertz and Lassers and Alex Elson for the American Friends Service Committee et al.; by Warren E. Magee and Judah Best for the American Psychiatric Association; by Berl I. Bernhard, William T. Coleman, Jr., Samuel Dash, John W. Douglas, Steven Duke, William T. Gossett, Rita Hauser, Burke Marshall, Steven R. Rivkin, Whitney North Seymour, and Cyrus R. Vance, pro sese, for Berl I. Bernhard et al.; by Messrs. Amsterdam, Greenberg, and Meltsner, Melvyn Zarr, and Charles S. Ralston for Robert Page Anderson et al., and by Hilbert P. Zarky and Richard M. Mosk for Clinton Duffy.
In 1962 the petitioner was found guilty of rape by an Arkansas jury without a verdict of life imprisonment, and the trial court imposed a sentence of death. 1 The Arkansas Supreme Court affirmed the judgment of conviction. 236 Ark. 694, 370 S. W. 2d 113. The petitioner then sought a writ of habeas corpus in the United [398 U.S. 262, 264] States District Court for the Eastern District of Arkansas, claiming, among other things, that his conviction and punishment were unconstitutional in that (1) the jury had determined the two issues of guilt or innocence and of a life or death sentence in a single proceeding, thereby precluding him from presenting evidence pertinent to the question of penalty without subjecting himself to self-incrimination on the issue of guilt; and (2) the jury had been given no standards or directions of any kind to guide it in deciding whether to impose a sentence of life imprisonment or death. The District Court denied the writ, 257 F. Supp. 710, and the Court of Appeals for the Eighth Circuit affirmed, 398 F.2d 138. We granted certiorari limited to the two questions noted above. 393 U.S. 997 .
The petitioner's trial took place long before this Court's decision in Witherspoon v. Illinois, 391 U.S. 510 . The trial transcript makes evident that several prospective jurors were removed from the panel upon grounds held impermissible in the Witherspoon case. One prospective juror, for example, was successfully challenged for cause solely on the basis of the following exchange:
Accordingly, the judgment of the Court of Appeals is vacated, and the case is remanded to the District Court, where the issue that has belatedly been brought to our attention may be fully considered. In the action we take today, we express no view whatever with respect to the two questions originally specified in our grant of certiorari. 4
[ Footnote 2 ] The record shows possible violations of the Witherspoon rule in the removal from the venire of at least four other prospective jurors.
[ Footnote 3 ] During oral argument of this case reference was made to the following Arkansas statute: "Reduction of verdict. - The court shall have power, in all cases of conviction, to reduce the extent or duration of the punishment assessed by a 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 [398 U.S. 262, 267] be not, in any case, reduced below the limit prescribed by law in such cases." Ark. Stat. Ann. 43-2310 (1964 Repl. Vol.). No effort was made by the petitioner to seek relief in the state courts under this statute. There is nothing in the record or otherwise reported to us to indicate that this remedy is not now available.
[ Footnote 4 ] We have today granted certiorari in No. 486, Misc.,McGautha v. California, and No. 709, Misc., Crampton v. Ohio, in which these two questions will be considered at an early date in the 1970 Term.
MR. JUSTICE BLACK, dissenting.