While Billy Maxwell's case took its roller-coaster ride through the federal courts, the Fund's war council of capital case lawyers made a decision which was to determine the path of their efforts for the next six years: henceforth they would attempt to block all executions. They would defend murderers as well as rapists, whites as well as blacks, Northerners as well as Southerners.
It is not easy to trace the evolution of this change in policy, for it came about only after a number of complex, interrelated, tactical and moral considerations coalesced, but of its importance there can be no doubt. One factor prompting the decision was the unpleasant lesson taught by the reaction of the courts to the rape study in Maxwell's case: notwithstanding that the evidence was as convincing as men with finite resources could produce, judges resisted an argument that on the basis of statistics asked them to brand hundreds of trial juries as prejudiced. Proof of racial discrimination in rape sentencing might ultimately influence judges to require standards, split verdicts, or different rules governing the exclusion of scrupled jurors. If the lawyers unearthed more facts, judges might even come to accept the statistical argument itself. But such results were unlikely for several years and they would never be possible unless