If the Death Penalty Is to Be Retained at All
LDF represented many of the death-row inmates whose appeals had worked their way to the Supreme Court, but McGautha and Crampton were not among them. Their cases were in the hands of private counsel, but too much was at stake for the Fund to remain silent. An amicus curiae brief filed with the Court reiterated the arguments made in Maxwell and emphasized that by giving the jury few facts and absolute power, standardless and single- verdict jury sentencing encouraged racial discrimination. The full Court, including Justice Blackmun, heard oral argument in the two cases on November 17, 1970; Amsterdam remained in California, but Himmelstein, Lyons, and I shuttled to Washington for the proceedings.
Herman F. Selvin, a graying California advocate with a moving voice and a sharp mind, argued the case for Dennis McGautha. Selvin wandered over the law as if it were his backyard; his eloquence was impressive. But he had not spoken for long when it became apparent from the tone of the Justices' questions that the standards argument was a lost cause.
Arguing for California, Ronald M. George, a state deputy attorney general, emphasized, without being pressed, the points suggested by Harlan and White's ques