Bracy v. Gramley – Oral Argument – April 14, 1997

Media for Bracy v. Gramley

Audio Transcription for Opinion Announcement – June 09, 1997 in Bracy v. Gramley

del

William H. Rehnquist:

We’ll hear argument next in Number 96-6133, William Bracy v. Richard B. Gramley.

Mr. Levy.

Gilbert H. Levy:

Mr. Chief Justice, and may it please the Court:

In support of our discovery request in the district court, we presented evidence that former Judge Thomas Maloney systematically disregarded his oath of office in favor of his self-interest.

He accepted bribes to fix murder cases.

He had a prior history before he ascended to the bench as an attorney who fixed cases, and who had ties to organized crime.

William H. Rehnquist:

Well, would your case be any weaker if he had never accepted… never given bribes when he was an attorney and simply had accepted them when he was a judge?

Gilbert H. Levy:

It would not be any weaker, Mr. Chief Justice.

William H. Rehnquist:

Then why do you mention the attorney business?

Gilbert H. Levy:

It seems to me, Mr. Chief Justice, that it’s relative to the character of the person who is assumed to regard his oath and office and be fair in my client’s case, a factor, I think, that the district court would want to take into consideration in determining whether or not there was a due process violation.

William H. Rehnquist:

Well–

–What standard are you arguing for here as a matter of constitutional law?

Do you think it’s necessary to show that the… Judge Maloney made some request, either by inference or expressly, in this case, or do you think it’s only necessary to show that he made it in other cases?

Gilbert H. Levy:

I think the standard, Mr. Chief Justice, as this Court indicated in Murchison, is probability of unfairness in this case.

We believe that the presentation that we made to the district court was sufficient to demonstrate that, but if this Court decides that that’s not sufficient, or a district… or a court decides that’s not sufficient, we’re certainly in a position to go forward and demonstrate more.

William H. Rehnquist:

Well, when you say probability of unfairness, you’re saying that if you can show in some other cases that he asked for a bribe, or that perhaps he suggested if you didn’t give him a bribe he would be very tough on you, that would be enough, without showing anything in this particular case?

You can answer that yes or no, I think.

Gilbert H. Levy:

No, Your Honor, if I may explain, please.

Yes, certainly.

Gilbert H. Levy:

I think all of this Court’s analysis of this issue has always looked to the biasing influence itself, and whether it was sufficiently strong.

If the biasing influence, which in this case was corruption, has been deemed to be sufficiently severe, this Court has always presumed prejudice and has not looked to the question of whether or not the judge in a particular case was actually biased towards the particular defendant.

However, if actual bias were the standard, which we maintain it isn’t, we believe that we may be able to show that if we’re given access to the evidence.

William H. Rehnquist:

You… I suppose you would show that by something said to one of your client’s lawyers by the judge during his trial.

I would think you’d be able to get that now.

Gilbert H. Levy:

We may… we think that we could show that for what… for example as to what Judge Maloney may have said to the accomplices, who were Government witnesses, at the time, who were involved in the bribe-taking process at the same time that my client’s case was tried.

We may be able to explore the possibility that there was a corrupt relationship between Judge Maloney and the person that he appointed to be my client’s attorney.

We believe that we may be able to show examples of instances where Judge Maloney was corrupt in other cases in which he didn’t receive bribes.

We believe that, as the Government sensing memorandum in the Maloney case indicated, we believe that we may be able to show a lot of corruption going on right at the same time as Mr. Bracy’s trial, so that Judge Maloney would have had to have leaned in favor of the State just to be generally impartial.

Antonin Scalia:

Mr. Levy, I’m not sure what the scope of your concession was.

Did you, in response to the Chief Justice, acknowledge that before you can proceed with further discovery you must establish a probability of unfairness?

Gilbert H. Levy:

No, I don’t… I’m sorry, I misspoke, Justice Scalia.

Thank you.

I think that we… before I can proceed with discovery we have to show something more than bare allegations, as I understand this Court’s interpretation of Habeas Rule 6(e).

Certainly in this case I maintain that we did show something more than bare allegations.

We showed quite a bit.

We think the showing was sufficient to allow us to proceed forward.

The judicial corruption, at least in my estimation, is worse than the type of situations that this Court has previously held to be a sufficient biasing influence.

It’s worse than direct pecuniary interest.

It’s worse than a judge who may be the subject of personal insults.

It’s worse than a judge who’s somehow receiving income from the process, or is part of the process which is benefiting from a conviction.

At least in those–

Sandra Day O’Connor:

Well, Mr. Levy, I think we need to focus on two things here.

One, what is the substantive standard that would entitle you to relief at the end of the day, and secondly, and most importantly for your case, what is the standard for showing good cause under the rule to get discovery?

You have to deal with both those things and I think distinguish between them, and I’m not sure you are.

I’m just hearing a lot of generalizations about corruption.

Gilbert H. Levy:

–Thank you, Justice O’Connor.

The substantive standard is well-established in the Murchison case.

It’s probability of unfairness.

The good cause–

Antonin Scalia:

Substantive standard for what?

Gilbert H. Levy:

–For judicial bias.

Antonin Scalia:

For ultimate relief.

Gilbert H. Levy:

Ultimate relief.

Antonin Scalia:

Ultimate relief.

Gilbert H. Levy:

The standard under 6(a) is, if… may be… it demonstrated sufficient facts to indicate that the petitioner may be entitled to relief under the substantive standard, we maintain that we’ve already got enough to satisfy the substantive standard, but certainly at least we’ve shown good cause that we may be able… entitled to relief.

There’s no exact formulation, Justice O’Connor, but presumably it… we have… in order to get discovery we would have to show something less than what we would be required to show in order to be able to obtain ultimate relief.

Anthony M. Kennedy:

Well, in assessing the probability of bias, am I supposed to make some judgment as to whether it’s likely that a judge who has committed himself to a course of bribery is… in a case where no bribe has been offered or requested, is going to be pro-Government?

Am I supposed to assume that that is a likelihood, based on human nature or something?

How might I make this determination of probability of bias?

Gilbert H. Levy:

There… based upon this Court’s past decisions, those types of assumptions have been made.

Gilbert H. Levy:

For example, in the contempt cases, where the defendant or a party is insulting the judge, this Court in the past has made an assumption that that type of direct personal on attack… personal attack on the judge will be so disquieting to the judicial person that he or she will be unfair, so I think at a certain threshold that type of assumption is drawn.

However, I don’t–

Anthony M. Kennedy:

I think can… we have some experience with that that justifies that conclusion, but in this case you’re saying once on the take the judge can never be trusted to be unbiased.

Gilbert H. Levy:

–It certainly would seem that somebody has so little concern for the oath that he’s going to take bribes to fix murder cases is probably less of a reliable person to be deemed to be a good judge than somebody who’s–

Anthony M. Kennedy:

Well, not a good judge.

He’s a biased judge.

Gilbert H. Levy:

–Or a fair judge.

Somebody who’s got a past track record of unfairness, I think it’s fair to make an assumption that that person isn’t going to be fair, and that seems to me to be a much more compelling assumption than somebody who may simply have had his or her feelings hurt by a party.

William H. Rehnquist:

Well, then your position is that you’ve got enough evidence really right now, I suppose.

The man did take bribes, and… in other cases, and therefore you say the permissible inference is that he’s unfair in all cases.

It doesn’t… that doesn’t seem logical to me, but it seems to me that’s your position.

Gilbert H. Levy:

My position, Mr. Chief Justice, is that we do have enough evidence right now, but if the Court decides that we need to show more, I think there’s a whole wealth of information out there, and we can show more.

Answering Justice Kennedy’s question, I think that it’s more than an inference about the… how the person will behave.

It’s a… if you will, it’s a structural defect.

The judge is the captain of the ship in any judicial proceeding.

He or she is the rudder.

If the person is–

Anthony M. Kennedy:

So any time a judge has taken one bribe, all his decisions have to be set aside?

Gilbert H. Levy:

–That is the inference.

It seems to me this is the type of… certainly the magnitude of bribery that’s involved with Judge Maloney is pretty much, in my estimation at least, analogous to a rudderless ship.

You simply–

William H. Rehnquist:

But what about Justice Kennedy’s particular question?

What if a judge has taken one bribe, and has sat there for 15 years?

All of his cases go down the drain under due process?

Gilbert H. Levy:

–As I understand the–

William H. Rehnquist:

Can you answer the question yes or no?

Gilbert H. Levy:

–Yes.

Ruth Bader Ginsburg:

But Mr. Levy, I thought you were saying–

–This judge has handled… this judge has handled 6,000-some criminal cases, as I understand it, and by your standard they’re all out the window, and I guess there are a number of other judges that were also convicted in this Chicago area who had had similar experiences, so we’re talking about a lot of cases.

Do you have a fallback position from that in–

Ruth Bader Ginsburg:

[Laughter]

Gilbert H. Levy:

My fallback position is the dissent in the Murchis… or in Ward v. Monroeville, which is that it’s a fact-specific analysis.

You have to look at the particular circumstances.

Certainly, this case may be different than the case where the judge took a single bribe in his or her career years ago and you take it on a case-by-case basis.

We submit that the facts of this case are so egregious and so aggravated, there was a whole lot–

John Paul Stevens:

Mr. Levy, could you clarify for us, of the 6,000 figure, does that include all guilty pleas, for example, the 6,000 cases?

Do you know?

Gilbert H. Levy:

–I’m sure that some of them involved guilty pleas.

Some of them were minor matters.

I think in numerous instances there’s nothing pending–

John Paul Stevens:

Well, would your position require that the guilty plea convictions be set aside?

Gilbert H. Levy:

–Any situation… no, not the guilty plea.

That’s non… predominantly nondiscretionary, but in any situation where a court–

John Paul Stevens:

So maybe in most of the jurisdictions the guilty pleas represent 90 or 95 percent of the convictions, so maybe a lot of these were not trial.

Gilbert H. Levy:

–That’s correct.

Stephen G. Breyer:

Yes.

Well, are there other… I mean, obviously what was concerning the lower court is that there are quite a few judges in Greylord who were dishonest, and there are tens of thousands, perhaps, of cases of criminals who are convicted, and they’re worried about releasing them and saying they’re all going to have new trials, since the evidence will have disappeared, and so suddenly they will go free.

All right, that’s what was concerning the lower court.

Now, what we’re looking for to consider is, are there lines short of releasing all those people that make some sense in terms of the fairness of the situation?

You say case by case, but what are we looking for case by case?

Are there characteristics?

One might be whether they pleaded guilty or not.

Are there others?

Gilbert H. Levy:

This Court’s cases on judicial bias have never discussed a per se rule.

What they’ve talked about is degrees of bias and whether or not the biasing influence is sufficient so that the appellate court can say–

Stephen G. Breyer:

I’m not thinking of what the cases have held.

I’m thinking of what, in your experience, would make sense as a line.

Is there anything short of releasing, let’s say, all those who didn’t plead guilty, or are there other considerations that would segregate those which are the most likely to be unfair from every criminal case, at least every one without a guilty plea?

Gilbert H. Levy:

–Well, certainly one consideration would be the imposition of the death penalty.

Another consideration would be the extent to which the judicial officer made discretionary rulings which potentially affected the outcome of the case.

Gilbert H. Levy:

Another consideration would simply be the nature of the biasing influence, a fact-specific determination of whether or not in a particular case the biasing influence was so severe that the appellate court can say with some… or the reviewing court can say with some confidence that there was a probability of unfairness.

Sandra Day O’Connor:

Mr. Levy, you’re– –You know, I can imagine… I can imagine cases where it… the case has gone to a jury trial, and there’s no provable fault in the instructions given to the jury, and there was no single evidentiary ruling that could be said to be improper in any way, and why should that case be upset, even though the judge turns out to have been a very bad actor?

Gilbert H. Levy:

With all due respect, Justice O’Connor, it seems difficult to me to imagine a situation in a serious criminal matter where the judge is not making discretionary rulings all along the way which might in some fashion have an impact on the outcome of the case, or even if there’s–

Anthony M. Kennedy:

But suppose we assume that those were correct, and that they were within the discretion of an honest judge of absolute probity.

Gilbert H. Levy:

–Even if we assume that they’re correct, Justice Kennedy, we cannot assume, particularly under these circumstances, that the judge did not take his or her self-interest into consideration in deciding how she… how he or she might make these discretionary rulings, and that’s really the problem.

If you simply look at the correctness of the rulings that the judge made, then you insulate a whole category of judicial bias from appellate court scrutiny, because surely judges can influence or impact the outcome of cases without appearing to abuse their discretion.

Anthony M. Kennedy:

Mr…. I’m sorry.

I didn’t mean to cut off your sentence.

Gilbert H. Levy:

That’s fine, Justice Souter.

David H. Souter:

There’s one answer that you are not giving to Justice Breyer’s questions that I thought you were going to give, and I had intended, actually, to raise this with opposing counsel, but let me raise it with you.

Gilbert H. Levy:

Okay.

David H. Souter:

I would have thought that you would have argued that one way to narrow the category down was to look for evidence that raised a particular inference of bias at the time of the trial in question, at the time of… your client was tried, as opposed simply to a general shotgun corruption approach pervasive throughout the judge’s entire tenure.

And I thought that you had such an argument here, because I… and this is where I want you to correct me if I’m wrong.

I thought the record indicated that in a case that was tried after yours a bribe had been solicited and… or agreed upon prior to the trial of your case, so that it would be a very good reason for supposing that the judge would say, I’m going to dump the case that follows this one, and therefore it’s important to me, if I’m not getting a bribe here, to come down hard on the State’s side so that I will look good here and hence not appear too peculiar there.

Do you… is… are the facts such that you could make that argument?

Gilbert H. Levy:

Justice Souter, I think that the facts are even more compelling.

I think the evidence would show that the bribe negotiations for the Lenny Chow case, which was a $100,000 fix to acquit three murder defendants, was going on at the same time as my client’s trial.

Ruth Bader Ginsburg:

But you don’t need any discovery to find that out, and that’s… I’m very confused by your presentation, because you seem to be dealing with an absolute here, and yet the only question presented is whether you’ve shown enough to be entitled to discovery, so what would you discover that isn’t on the public record?

I mean, now we have… the transcript of Maloney’s trial is a public record.

What… if you’re successful here, what discovery would you pursue?

Gilbert H. Levy:

On the assumption that we have to show more than what we’ve already shown, and that we have to point to specific instances which may raise inferences of bias, I believe that we may be able to show that there was more than simply a temporal connection between my client’s case and the Lenny Chow case, the murder bribe case–

Ruth Bader Ginsburg:

Well, can you be concrete?

Whose depositions would you take?

What evidence… because the only question before us is whether you’re entitled to discovery or not.

Gilbert H. Levy:

–It appears, Justice Ginsburg, in this case… and I’m not saying that the record shows it now, but I think there’s at least some suggestion of this in the record, that Judge Maloney appointed an attorney who was a former associate of his with the understanding that this attorney would not object to the timing of the Bracy case… in other words, would announce that he would agree to go to trial in a month on a triple homicide case, followed by another triple homicide case… just so that the Bracy case could take place before the Chow case and the Bracy case would then be camouflage for the bribe negotiations in the Chow case.

I believe that if we’re given an opportunity for discovery we can show that.

I think that that would simply… that would do more than simply raise an inference of bias.

I think that would show actual bias in this particular case.

If that’s what we’re required to show if given the fair opportunity, we’re prepared to do that.

Ruth Bader Ginsburg:

So you would take the deposition of the attorney that had been appointed?

Gilbert H. Levy:

I would take the deposition of the attorney, I would take the deposition of Judge Maloney, I would take the deposition of the gentleman who assisted Judge Maloney with the bribe, the persons who were accomplices, who were Government witnesses at the time of the Maloney criminal trial, persons who are not likely to be available to us or cooperate with us, or give us meaningful answers, unless they’re given a subpoena and forced to sit down and answer questions under oath in a formal discovery process.

Antonin Scalia:

Mr. Levy, let’s get back to the precise issue that you have to establish.

You have to show that you may be able to prove a probability of bias.

Gilbert H. Levy:

That’s correct.

Antonin Scalia:

You may be able to prove probability.

It seems to me that your case rests upon several assumptions that I don’t think are necessarily self-evident, number 1 that a judge who takes bribes in order to provide lenient treatment to some criminal defendants will provide harsher treatment to those from whom he does not take bribes.

That doesn’t strike me as self-evident.

Gilbert H. Levy:

Justice Scalia–

Antonin Scalia:

In fact, I… you know, it seems to me just the opposite, that a judge who is on the take in some cases would look worse and would perhaps seem to be taking bribes if he were, you know, a hanging judge in most cases but in some cases all of a sudden comes out with, you know, real bleeding heart rulings.

I don’t know why that isn’t a more plausible assumption of human behavior than the one you want us to believe.

Gilbert H. Levy:

–The assumption that I’m asking this Court to draw, Justice Scalia, is not so much that as the assumption that persons who are dishonest on numerous occasions are likely to be dishonest and self-interested and disregard their oath of office in other occasions… it’s difficult for me to tell the Court without–

Antonin Scalia:

So you should get discovery if this man were cheating on his wife, for example?

Doesn’t there have to be a close connection between the dishonesty in question and the dishonesty that you claim disfavored your client?

Gilbert H. Levy:

–The close connection is that in judicial proceedings, when Judge Maloney took an oath to be fair, he wasn’t, and I think it’s certainly a fair and logical inference to draw from that that he would be dishonest or self-interested–

Antonin Scalia:

I don’t think so.

Mr. Levy, isn’t your answer– –It seems to me that he’s likely to… the fact that he is dishonest when he’s given money does not seem to me to render it self-evident that he’s going to be dishonest when he’s not given money.

Mr. Levy, isn’t your… a point you’re overlooking is, he has to get himself reelected, and if he’s a bleeding heart in every case he’s not going to be reelected in Cook County.

[Laughter]

Wasn’t it part of this record that this judge did have a reputation for being tough on crime?

Gilbert H. Levy:

–He had a reputation as a law-and-order judge.

My other, I think fair assumption from what we know about Judge Maloney, Justice Scalia, is that somebody in that situation is going to be paranoid or concerned that he or she might be discovered.

William H. Rehnquist:

Mr. Levy, is there any doubt about Judge Maloney’s sex?

You keep saying he or she, but I think he–

Gilbert H. Levy:

I’m… excuse me.

[Laughter]

I was speaking in general terms.

Thank you, Mr. Chief Justice.

Judge Maloney is going to be paranoid or concerned that he’s going to be under investigation by the State’s Attorney’s Office or the U.S. Attorney’s Office, and I think a reasonable and fair assumption is that he’s going to do things in other cases to take the heat off.

Antonin Scalia:

–Whatever the–

–I, my point is exact… if I were taking a bribe, I would be very careful not to be a hanging judge in 90 percent of the cases and all of a sudden come up with this utterly inexplicable bleeding heart ruling.

Antonin Scalia:

It seems to me that would call more attention to me than the opposite.

I–

–Is that what you’re going to do discovery to find out?

Gilbert H. Levy:

The purpose of the discovery is to find out whether or not he… there is a likelihood in Mr. Bracy’s case that he, Judge Maloney, made decisions on the basis of things other than–

Well–

Gilbert H. Levy:

–facts of the law.

Stephen G. Breyer:

–I mean, are you intending… you have a proposed discovery.

You have proposed discovery.

Do you intend to ask people who know the judge, or perhaps the judge himself, whether he either said or thought one theory or the opposite theory, whether he either said or thought, I think I’ll be a little tougher in some of these criminal cases.

It’s important to me to get a reputation for being tough, because I get more money that way, or some words that could give rise to that inference, or the opposite, which Justice Scalia suggests could well be the case.

Do you plan discovery to find out?

Gilbert H. Levy:

Certainly, Justice Breyer, in keeping with the idea that this is a fact-specific determination, what we would do is, we would ask the witnesses what was his attitude, what was his demeanor, what was his–

Anthony M. Kennedy:

Now, is one of those witnesses Swano, Mr. Swano?

Gilbert H. Levy:

–Mr. Swano–

Anthony M. Kennedy:

Do I have his name correctly?

Gilbert H. Levy:

–Justice Kennedy, it’s Mr. Swano, who is the attorney who gave the bribes in most of these cases, including–

Anthony M. Kennedy:

Is he one of the key witnesses?

Gilbert H. Levy:

–He is, Justice Kennedy.

Anthony M. Kennedy:

Well now, you had his testimony, and as I recall the timing, Judge Hart had made his ruling, but you had Swano’s testimony immediately thereafter, or the evidence about Swano?

Gilbert H. Levy:

Swano’s testimony in the Maloney case, which focused more narrowly on the issues in the criminal trial, would have been available to us after the proceedings were concluded, Justice Kennedy.

Anthony M. Kennedy:

Did you move to reopen, or more to reconsider before Judge Hart?

Gilbert H. Levy:

Did not.

Anthony M. Kennedy:

Why did you not do that?

Gilbert H. Levy:

We felt we’d made a sufficient showing.

At the time, we felt that–

Anthony M. Kennedy:

Well then, why are you asking us for extraordinary relief so that you can bring to Judge Hart’s attention something you didn’t bring to his attention during the time period when you were permitted to do so?

Gilbert H. Levy:

–The relief that we’re asking is not access to the material, Justice Kennedy, that was publicly available, which may or may not have bearing on the precise question that the judge–

Anthony M. Kennedy:

Well, but if his testimony is so critical that you want us to reverse Judge Hart, it’s a little difficult for you to ask us to do that when you didn’t bring it to his attention when you could have.

Gilbert H. Levy:

–That which we could have brought to Justice Hart’s attention, Justice Kennedy, is not the same thing as what we’re asking for.

What we’re asking for this Court to do is precisely what we asked Judge Hart to do and he said he wouldn’t, which was an opportunity to depose these people to ask them the precise questions that Justice Breyer posed and Justice Scalia posed, which is, how did Judge Maloney feel about the cases where he wasn’t bribed, and was there a relationship in terms of Judge Maloney’s attitude between the cases where he was bribed and the cases where he wasn’t bribed, and that information wasn’t publicly available then, isn’t publicly available now, and the only way that we’re going to be able to get at it is through the discovery process, formal discovery process.

Ruth Bader Ginsburg:

Mr. Levy, may I just ask you a fact about Bracy?

At some place in the record it says he’s also under a death sentence in Arizona.

Is that being challenged?

I’m just wondering how–

Gilbert H. Levy:

That’s being challenged, Justice Ginsburg.

There are proceedings now pending in the United States District Court for the District of Arizona.

If I may, I’d like to reserve the rest of my time.

William H. Rehnquist:

–Very well, Mr. Levy.

Ms. Preiner, we’ll hear from you.

Barbara A. Preiner:

Mr. Chief Justice, and may it please the Court:

The Due Process Clause entitles a defendant to a fair trial.

In the context of the issues of this case, that question comes down to whether or not this defendant was tried by a judge who had a direct interest in the outcome of his case.

It is our contention that this petitioner received a fair trial from a judge and a jury.

The evidence against him was strong, and is not challenged here.

The judge’s legal rulings have been reviewed twice by the Illinois supreme court–

John Paul Stevens:

May I ask kind of a basic question, Ms. Preiner?

Supposing instead of a judge who’s accused of bribery and so forth, this man had been tried by an accountant or a law clerk or somebody else who was not properly elected to office and was not a lawyer, and so forth, but you look at the record and he got a fair trial.

Would that be subject to setting aside?

Barbara A. Preiner:

–I believe it would be, Your Honor.

I believe that that at minimum you are entitled to a trial by a judge and a jury.

If we have an imposter as the judge, I believe that that–

John Paul Stevens:

And so the question is whether he had a judge here?

Barbara A. Preiner:

–Whether he had… yes, a duly elected judge, and he was tried by the judge and a jury.

John Paul Stevens:

Do you think it’s better to be tried by a corrupt judge then by an accountant, for example?

Barbara A. Preiner:

I suppose it depends on the accountant, but–

[Laughter]

John Paul Stevens:

No, but under your answer–

Barbara A. Preiner:

But we would assume–

John Paul Stevens:

–all accountants, we’d set it aside, even the most brilliant, fair-minded, honest–

Barbara A. Preiner:

–Well, I… certainly no slur meant on accountants, or judges, but yes, we would assume that since the people have elected a certain person to sit in judgment on his fellows, that it would be his obligation, and we haven’t done that for any accountants, so they would not be within that category that we trust with these decisions.

Antonin Scalia:

–Well, I suppose you haven’t had a trial, in the ordinary sense, if it’s been done before a kangaroo court.

There’s just been no trial in the accepted sense, and the question of whether you had a fair trial is different from the question of whether you had a trial.

Barbara A. Preiner:

Yes.

John Paul Stevens:

And of course, that’s the issue here.

When the judge is corrupt, have you had a trial?

Barbara A. Preiner:

Well, I believe… yes, and I think that he has had a trial here, and he hasn’t shown that the judge was corrupt in his case.

I think that’s the distinguishing factor here.

What counsel would have you assume is, all he has to show is that this judge once took a bribe, or took a bribe in another case, and that any case that he ever ruled on from that point on can no longer stand because–

John Paul Stevens:

But there’s more in this record.

There is evidence, as I remember it, according to the court of appeals opinion, that there was a case where he convicted in a case where the evidence indicated he normally would have acquitted, and did so in order to enhance his reputation as a tough judge.

Isn’t there evidence of that kind in the record?

Barbara A. Preiner:

–I believe that that’s reading that evidence too broadly.

You do have statements from another convicted lawyer who said that he had a case in front of this judge that he believed should have been a not guilty verdict, and that the judge in fact convicted his client, and he took that as a message to him that he needed to pay the judge money in order to get an acquittal.

Now, that’s one–

Antonin Scalia:

Hadn’t a bribe been invited or solicited in that case?

I thought that was part of the scenario.

Barbara A. Preiner:

–I don’t know… I don’t know that a bribe had been solicited in particularly that case, but clearly this lawyer–

Antonin Scalia:

But this lawyer had previously come up with bribes.

Barbara A. Preiner:

–He had a history of engaging in that business practice with this judge, and furthermore, we only have this lawyer’s word for it, that it would have been an acquittal.

William H. Rehnquist:

Was it a bench trial or a jury trial?

Barbara A. Preiner:

That was a bench trial.

What the petitioner here is asking you to do, essentially, is to grant him the writ.

I mean, his request… as he has just admitted here in oral argument, his request for discovery–

Sandra Day O’Connor:

Well, I think you, like the petitioner, need to be careful about what we’re being asked to do here.

I thought this issue was whether the petitioner was entitled to discovery under the rule.

Barbara A. Preiner:

–That–

Sandra Day O’Connor:

There was good cause for discovery to take depositions of the judge and the attorney that was appointed.

Barbara A. Preiner:

–And that is my understanding of the issue that the Court framed, and that is certainly the issue that we briefed, but–

Sandra Day O’Connor:

So what we have to decide is what would amount to good cause, and what would be an abuse of discretion for denying discovery.

Barbara A. Preiner:

–Clearly, I agree with that, Your Honor.

Barbara A. Preiner:

I was just commenting that counsel this morning was saying he believes he’s actually proven enough to get the writ.

He believes not only has he shown good cause for discovery, he believes that he has shown that he should be granted the writ for his client here.

It’s our position–

Anthony M. Kennedy:

What should be our ruling on the substantive basis for relief in a case where it is shown that the judge did have the modus operandi of being very tough in those cases where there was no bribe in order to facilitate taking bribes in the other cases?

What should be the ruling there in a challenge by someone who’s been convicted in a case where there’s no bribe?

Barbara A. Preiner:

–I believe that if he could show that there was a modus operandi whereby the judge was ruling more harshly against defendants in order to cover his bribe-taking, or in order to balance his win-loss statistics, then I believe that he would be able to show actual bias in his case.

He hasn’t been able to do that here.

Ruth Bader Ginsburg:

But he wants discovery for that very purpose.

Barbara A. Preiner:

But Your Honor, in order to even bring the habeas petition to the Court and ask for discovery, he has to show that there is at least some basis for his claim.

Anthony M. Kennedy:

Well, he has Swano’s testimony.

Barbara A. Preiner:

He… actually, he doesn’t have Swano’s testimony.

He didn’t really support this request or this petition for writ with anything to the Court.

As you pointed–

David H. Souter:

You’re not claiming that the… or maybe you are claiming that the writ is subject to dismissal right now?

Barbara A. Preiner:

–I believe that if what–

David H. Souter:

That the petition for writ is subject to dismissal right now.

Is that your position?

Barbara A. Preiner:

–I believe that it was properly… it was subject to dismissal by the court below.

Ruth Bader Ginsburg:

Maloney was on trial.

There was no… one of the problems was, he couldn’t get anything out while the judge was on trial.

As I understand it, that trial was over after the hearing on the habeas in the district court, is that right?

Barbara A. Preiner:

I believe that the transcript was unavailable.

I believe that the judge’s trial was–

Ruth Bader Ginsburg:

Well, the transcript was what he needed to say, look at this testimony that we have from Swano in this record.

If I can get a chance to depose him, I can get even more.

Wasn’t that the idea?

That’s what I thought the question presented was.

Barbara A. Preiner:

–I think that that is certainly something that he could have argued.

What he did argue, though was, what I’d like to do is conduct a survey of the judge’s win-loss record, and the court said, you could have done that without any kind of discovery, and he said, and then what I’d like to do is look at Judge Maloney’s trial and try to get some idea of what evidence there might be against him, and the court said, well now at this point you could have done that, too, without discovery.

So all you’re left with is that he wants to depose some people.

Barbara A. Preiner:

He didn’t bring to the court that he had talked to the defendant’s lawyer at trial.

He hasn’t talked to any other witnesses.

He hasn’t… he hasn’t done anything to show that there might be some basis that will ultimately disclose that there was bias in this case.

Anthony M. Kennedy:

Well, what about the argument which has at least been brooded about here this morning that if a trial in which there was no known bribery is sandwiched between trials in which there was bribery, or was conducted at a time when bribes were being solicited and arranged in other cases, there is good reason to believe, certainly in the elected system that Justice Stevens alluded to, that it would be in a judge’s interest to look tough in a case in which he could be tough at no cost to himself without losing a bribe, and that that would be a reasonable basis for saying that discovery may uncover evidence that would substantiate the claim here.

Would that not be a reasonable basis for at least taking discovery to some step?

I don’t know how far it might go, but discovery is structured.

Wouldn’t that be a reasonable basis for making a start under the rule?

Barbara A. Preiner:

With all due respect, Your Honor, that’s nothing more than speculation.

That’s nothing more than–

Anthony M. Kennedy:

Well, it’s not speculation.

I mean, it seems to me that it’s a statement of one reasonable possibility.

Another reasonable possibility is the one that Justice Scalia referred to, and that is, this fellow wouldn’t want to call attention to the oddity of his rulings.

He would want to look a little soft if he could.

That would be a reasonable basis, too.

But you start discovery not by deciding between one or the other of those theories.

You start discovery by determining whether there is a reasonable basis for saying that discovery may lead to evidence that would tend to prove the probability that this particular petitioner would have to prove.

Why hasn’t he made that showing on the kind of argument that I’ve made?

Barbara A. Preiner:

–Because I believe that what we have here then is just a range of speculation.

You can speculate that the judge was more harsh in these cases.

You can speculate that he was more lenient in these cases.

You could speculate that if he was being unfair in one case, he balances that off by being extremely fair in another case.

Anthony M. Kennedy:

So you’re saying that neither Justice Scalia’s view nor the view that I’ve been suggesting is even reasonable.

Each is mere speculation, and could never be the basis for taking even a first step in discovery.

Is that your position?

Barbara A. Preiner:

I believe they’re all reasonable.

They’re all reasonable speculation.

Anthony M. Kennedy:

Well, if they’re reasonable, then we’re beyond the point of mere speculation.

Yes. You can’t define speculation as being a choice between one of two probabilities.

Or do you?

Barbara A. Preiner:

I suppose speculation would be among a range of probabilities.

Barbara A. Preiner:

I think that–

John Paul Stevens:

Of course, this isn’t like a lot of requests for discovery where it’s totally a fishing expedition.

You don’t have anything to go on.

You just want to prowl around and find something.

We at least start with established facts that this judge took bribes in a significant number of cases at roughly the same time as he tried this case, so you’re starting off with some factual basis for saying we ought to take a little harder look at the whole situation.

Barbara A. Preiner:

–Actually, with all due respect, Your Honor, I disagree.

I think this is a fishing expedition.

It’s nothing more than that.

He can’t show any bias by this judge against him in his case.

Anthony M. Kennedy:

Well, what about the allegation that the trial was set to precede the trial where the bribe was taking place?

Barbara A. Preiner:

Frankly, Judge, this is the first time I’ve heard that claim made.

Anthony M. Kennedy:

That’s the first time you’ve heard that?

Is Judge Maloney… by the way, has Judge Maloney conceded that he took bribes?

Barbara A. Preiner:

He never has.

He has never admitted any guilt.

Stephen G. Breyer:

Has he… was he tried, or did he… he didn’t plead guilty?

Barbara A. Preiner:

He did not plead guilty.

Stephen G. Breyer:

And he has been convicted?

Barbara A. Preiner:

He has been.

Stephen G. Breyer:

So it wouldn’t do any good to ask him any of these questions.

[Laughter]

The allegation that this trial was set before the other one, this is the… it’s not contained in any of the arguments in the briefs, or–

Barbara A. Preiner:

I believe that the record will reflect on what date this trial occurred, and beyond that I don’t think anyone has ever suggested that there was a specific reason for timing with respect to the trial date here.

Anthony M. Kennedy:

–If this case, if Bracy’s trial was set before the other trial, would… for that purpose, would that automatically show bias that would entitle the petitioner to relief here?

Barbara A. Preiner:

I don’t believe that that would be sufficient to show that there was bias in this case.

Anthony M. Kennedy:

You do believe that it would?

Barbara A. Preiner:

I do not.

William H. Rehnquist:

If you were to go as far as… your opposing counsel says that an attorney was appointed for this person who would agree to a triple capital trial within a month, when in fact he should have wanted a much longer time to prepare.

I mean, you say that’s raised for the first time now, and you may well be right, but if that were somehow made out at the appropriate point, that would surely be a basis of discovery for that attorney, would it not?

Barbara A. Preiner:

I don’t believe that he has… I don’t believe that there’s ever been any suggestion that this attorney was engaged in that… that he didn’t properly prepare for this case, or that he agreed to some short time period for the setting of this trial.

Anthony M. Kennedy:

Yes, but that would be a ruling in this case that was made on grounds of bias and prejudice and for corruption.

You say it’s a harmless… a harmless ruling?

Barbara A. Preiner:

No.

I don’t believe that it would have been made for that purpose, and–

Anthony M. Kennedy:

But let’s assume that the trial is set in order to advance a conspiracy to take bribes.

Barbara A. Preiner:

–Then, absolutely that would be evidence of bias in this case.

If we are assuming–

Anthony M. Kennedy:

And that would be grounds for–

Barbara A. Preiner:

–that there’s a conspiracy.

Anthony M. Kennedy:

–upsetting the conviction, would it not?

Barbara A. Preiner:

I believe that would be.

I would like to emphasize again that the evidence in this case was extremely strong against this defendant, and it was tried to a jury, and there has been no showing before the Illinois supreme court or in front of the District Court of the Seventh Circuit that the judge–

John Paul Stevens:

Yes, but you’re not going to argue that we apply harmless error… if there’s proof of this guy was corrupt in this very case and made some rulings because he was bribed, you wouldn’t say that there’s harmless error there.

Barbara A. Preiner:

–I would never say that, Your Honor.

Ruth Bader Ginsburg:

No.

And no matter how strong the evidence of guilt may have been, didn’t this jury also make the death determination?

Barbara A. Preiner:

They did.

Under the circumstances of this case and the competing interest in balancing the finality of the judgment and the defendant or the petitioner’s interest in not being improperly confined, we submit that he had to show more in order to require the court… in order to show good cause why he should be allowed to explore all of these actions that he suggests here today he would have liked to explore.

And with all due respect, we believe that he could have… he could have done some of these things that he is asking the Court for permission to do, and I believe the court thought that, too.

They thought simply that he hadn’t done his homework before he came to the Court with this request for discovery.

John Paul Stevens:

Counsel, before you finish, would you comment at all on whether you think there’s any significance to the amicus brief filed by not only some distinguished Illinois lawyers, but former prosecutors and former U.S. attorneys, suggesting discovery is appropriate in this case?

Barbara A. Preiner:

I sympathize, and certainly the Attorney General sympathizes also with those lawyers and their perception that there is a taint on the judicial system in Illinois because of the scandal, of the Greylord scandal.

However, that is not a sufficient basis to upset a valid legal conviction in this case involving a defendant who was clearly guilty–

John Paul Stevens:

No, but just to bring back the point Justice O’Connor raised, we’re really not… we don’t really have to decide that.

We just have to decide whether the situation is sufficiently serious that it demands the fullest possible investigation before we decide what kind of rule should be adopted in a case like this, because there… it’s perfectly obvious that something might be learned by discovery that sheds light on the whole problem.

Barbara A. Preiner:

–Well–

John Paul Stevens:

Because the problem goes beyond this one case.

Barbara A. Preiner:

–I’m not entirely sure that anything will be learned by discovery in this case.

I don’t believe that there’s been any showing that there is anything out there to be learned by these various methods that he asks to employ.

We believe that he has to show some basis, some evidence on each one of the essential elements of his claim before he can get discovery, and we don’t believe that he has done that here.

Ruth Bader Ginsburg:

What would be enough, in your view?

What would be enough?

You… he did show some things.

You said they weren’t enough.

Barbara A. Preiner:

For example, Your Honor, if he could say, I did an inventory of all the trial court’s rulings in this case, and out of 187 rulings that he made, 180 of them went in favor of the State, and here’s why they were wrong.

If he could have said, for example, this was a bench trial, and all the rulings went against my client.

If he could have said something like, I have talked to Mr. McDonald, the lawyer who represented Mr. Bracy, and he tells me that, you know, this really wasn’t a fair trial.

He really thought something was going on here.

If he could have brought something like that to the court to provide some basis for believing that there would be proof of actual bias in this case, but there is nothing like that here.

Antonin Scalia:

Ms. Preiner, I’m… the brief that was referred to signed by former prosecutors, these people are former prosecutors?

Barbara A. Preiner:

Former prosecutors, yes.

Antonin Scalia:

They practice criminal law now?

Barbara A. Preiner:

Some of them do, yes.

Antonin Scalia:

Usually on behalf of defendants.

Barbara A. Preiner:

Almost exclusively on behalf of defendants.

Your Honors, our point… and Justice O’Connor, as you’ve pointed out, the question here is a discovery issue.

We believe that counsel has not made a sufficient showing for good cause for discovery.

John Paul Stevens:

Going back to the amicus brief, it does include a fair number of lawyers who do not practice on behalf of criminal defendants, such as former Governor Thompson–

[Laughter]

Barbara A. Preiner:

It includes–

John Paul Stevens:

Former Justice Seymour Simon… there are quite a few in there who are not representing defendants now, is that not right?

Barbara A. Preiner:

–And many law school professors and people from all–

Ruth Bader Ginsburg:

So it’s not almost exclusively.

You really want to modify that statement.

Barbara A. Preiner:

–Well, the lawyers who are criminal defense lawyers on there are lawyers who represent criminal defendants.

[Laughter]

Thank you.

Barbara A. Preiner:

Many of those lawyers have a varied practice, and I’m sure that they represent many noncriminal defendants, too, but there are a fair number of defense lawyers on there.

Your Honors, we simply believe that he has not made the showing that he needed to make to show good cause for discovery in this case.

We believe that the district court did not abuse its discretion in denying that request.

Barbara A. Preiner:

We believe that the Seventh Circuit appropriately affirmed that.

We would ask this Court to uphold that decision.

William H. Rehnquist:

Thank you, Ms. Preiner.

Mr. Levy, you have 2 minutes remaining.

Mr. Levy, could you comment on the observation that the timing of the trial, the early setting, is the first time, and your description of that, the first time that this has come up is in… here in this argument?

Gilbert H. Levy:

This is a… it’s a permutation on a previous argument, Justice Kennedy.

This is based upon the record.

It’s not based upon anything that counsel didn’t have available, or if I might simply indicate what the argument… but no, I’ve not… to answer the Court’s question squarely, I have not made this exact same argument on a previous occasion, but it is supported by the record.

And the basis in the record is that Robert McDonald was appointed in the middle of June 1981.

Several weeks after he was appointed, he announced that he was ready to go to trial in July of 1981–

Anthony M. Kennedy:

But all of this was before Judge Hart, was it not?

Gilbert H. Levy:

–It was.

He announced that he was ready to go to trial in July of 1981.

On July 20, which is the first day of Mr. Bracy’s trial, the State announced that it intended to introduce the evidence of the Arizona murder case as aggravation evidence in the event that there was a conviction on the homicide charge, and although another attorney who represented a codefendant Mr. Hooper asked for a continuance because he needed more opportunity to prepare, Mr. McDonald didn’t say a thing.

And the additional fact that I would throw into the equation there is simply there is some suggestion in the record that was before Judge Hart that there was a professional… a previous professional connection sometime between Mr. McDonald and former Judge Maloney, and that, to me at least, raises questions as to whether or not there was some kind of fix as to the timing of the trial.

If I may conclude, Chief Judge Posner in his majority opinion in the Seventh Circuit… and I would respectfully call the Court’s attention to the top of page 82 of the joint appendix… said, we are, it is true, speculating about the likely impact of Mr. Maloney’s corruption on the rulings that he made at the trial of these petitioners.

We also… may I finish?

William H. Rehnquist:

No.

Your time has expired.

The case is submitted.

Gilbert H. Levy:

Thank you.