Jenner & Block

Victory in Witherspoon Case Reforms Jury Selection Process in Capital Cases

The firm represented William Witherspoon in  a case that would have major implications for how juries are selected in capital cases throughout the nation.  In 1960, Witherspoon was sentenced to death by a jury.  The jury was selected in a process that permitted the prosecution an unlimited number of challenges for cause with respect to any potential juror who expressed qualms about the death penalty.  As a result, the jury that sentenced Witherspoon to death was composed only of persons who had no qualms about capital punishment.  Jenner & Block represented Mr. Witherspoon on a pro bono basis in a post-conviction review that challenged the constitutionality of this process.  The Illinois Supreme Court denied post-conviction relief.  In an appeal to the United States Supreme Court, a team led by Albert Jenner, with Tom Sullivan, Jerry Solovy and John Tucker, secured a reversal of Witherspoon’s death sentence.  On this day in 1968, the U.S. Supreme Court issued its opinion holding that the method of selection of the jury that sentenced Witherspoon to death was unconstitutional.  The Court reasoned: “A jury that must choose between life imprisonment and capital punishment can do little more – and must do  nothing less – than express the conscience of the community on the ultimate question of life or death.  Yet, in a nation less than half of whose people believe in the death penalty, a jury composed exclusively of such people cannot speak for the community.” The Court added: “To execute this death sentence would deprive [Witherspoon] of his life without the due process of the law.”  As a result of the Witherspoon decision, more than 350 inmates on death row around the nation had their death sentences lifted. 

Witherspoon was subsequently sentenced to life imprisonment.  He became a model prisoner.  When he became eligible for possible parole, Jerry Solovy, with assistance from associates Mike Seng and Dan Murray, mounted a concerted effort over a number of years to secure Witherspoon’s parole.  His parole application enjoyed the support of all of the prison wardens under whom he served and of all of the guards in Old Joliet Prison.  The Parole Board ultimately granted him parole. Witherspoon devoted the remainder of his life working at a half-way house in Detroit, helping inmates coming out of prison in their adjustment and re-entry into society.     

Please click here to read the opinion of the U.S. Supreme Court in Witherspoon.  Click here for a recording of Bert's oral argument presented to the Court.

TAGS: 1965-1974, B Byman, D Murray, Death Penalty, T Sullivan, Video, Witherspoon

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