Justices consider how the taint of a corrupt judge should be measured and remedied


A corrupt Chicago judge, now serving a 16-year sentence in Federal prison, took bribes to fix murder cases. Today the Supreme Court wrestled with the question of whether to presume that the judge's corruption may also have tainted the trials of defendants who did not bribe him, and, if so, what the legal consequences of such an assumption should be.

The Court heard an appeal by an Illinois death-row inmate, convicted of triple murder after a trial in the judge's courtroom in which no bribe was sought and none was paid. The inmate's lawyer is arguing that the defense is entitled to question the judge, Thomas Maloney, and others to build a case that the trial was fundamentally unfair because there is a substantial possibility that Judge Maloney was unduly harsh in the non-bribe cases to deflect attention from his leniency in the others.

The Justices were clearly troubled by the tawdry and undisputed facts about Judge Maloney, one of 18 Cook County judges to be convicted on corruption charges in the last 10 years in a major Federal-state investigation known as Operation Greylord.

Yet at the same time, the Justices were also troubled by the question of how to proceed in a case that itself lacks a definitive link between corruption and outcome, and in which a ruling in the defendant's favor could conceivably unsettle verdicts in hundreds or thousands of other cases.

''You're saying that once on the take, a judge can never be trusted to be unbiased,'' Justice Anthony M. Kennedy said to Gilbert H. Levy, the lawyer representing the inmate, William Bracy.

Mr. Levy replied, ''Someone with so little concern for his oath of office that he takes bribes to fix murder cases'' should indeed be presumed to have presided over a fundamentally corrupt courtroom.

Justice Sandra Day O'Connor said to Mr. Levy: ''This judge handled 6,000 criminal cases. By your standard, they are all out the window. We're talking about a lot of cases.''

When Mr. Levy filed his Supreme Court appeal for Mr. Bracy last year, he sought reversal of the conviction on the ground that Judge Maloney's known behavior amounted to a ''structural defect'' that deprived Mr. Bracy of the ''bedrock constitutional right to be tried before a fair and impartial judge.''

The Justices, however, offered him something less in agreeing to hear the case in January, announcing that they would consider only whether Mr. Bracy was entitled to ''discovery to support his claim that he was denied the right to a trial before an impartial judge.'' So the only question before the Court was by what standard a convicted defendant like Mr. Bracy should be able to compel a judge and other witnesses to answer his questions under oath.

The question was phrased at the usual level of abstraction for a Supreme Court case; the Court's goal is to define general rules rather than dispense individual justice in the 80 or so cases it chooses to decide from among the 8,000 appeals that reach it every year.

Yet given the troublesome context of judicial corruption -- emphasized in a friend-of-the-court brief from 30 leading Chicago lawyers and law professors who asked the Court to demonstrate ''zero tolerance for the venality'' displayed by Judge Maloney -- the Justices appeared unusually concerned about finding out what may have happened during Mr. Bracy's trial. They questioned Mr. Levy closely about the type of evidence he would try to extract if permitted to conduct discovery.

Mr. Levy's theory was that Judge Maloney was motivated to make sure that defendants in cases in which he did not take bribes were convicted, to balance the cases in which he traded leniency for money. The lawyer now wants to talk to participants in other trials the judge conducted around the same time as Mr. Bracy's trial in 1981.

Both Justices David H. Souter and John Paul Stevens told Barbara A. Preiner, the Illinois Solicitor General who was arguing that Mr. Bracy was not entitled to any further proceedings, that his request appeared at least reasonable.

Justice Stevens said the case was not like many other requests for discovery, which he called ''fishing expeditions.'' There was ''some factual basis'' for taking a ''harder look,'' he said, adding: ''It's perfectly obvious something might be learned in discovery.''

Ms. Preiner replied, ''With all due respect, this is a fishing expedition.''

She said there was strong evidence of Mr. Bracy's guilt, ''no evidence of bias'' by Judge Maloney against him, and ''no valid basis to upset the conviction.''

The Justices who were openly troubled by the state's position did not include Justice Antonin Scalia, who said that Mr. Bracy's case ''rests on a series of assumptions that are not necessarily self-evident.''

Addressing Mr. Levy, the inmate's lawyer, Justice Scalia said he thought it just as likely that rather than punishing those who did not pay bribes, a judge taking bribes to favor some defendants would be lenient in other cases as well to avoid calling attention to his behavior.

''He would look worse if he were a hanging judge in most cases and a bleeding heart in some,'' Justice Scalia said, adding: ''The fact that he was dishonest when he was given money doesn't mean he was dishonest when he was not given money.''

Mr. Bracy, whose conviction was upheld by the Illinois Supreme Court in 1985, filed a petition for a writ of habeas corpus in Federal District Court in Chicago in 1993, shortly after Judge Maloney's criminal conviction. The District Court denied his petition, as did the United States Court of Appeals for the Seventh Circuit, in Chicago, which held that a defendant in Mr. Bracy's position ''must show either the actuality, rather than just the appearance, of judicial bias, or a possible temptation so severe that we might presume an actual, substantial incentive to be biased.''

The case is Bracy v. Gramley, No. 96-6133.

In another case today, the Court agreed to decide whether the Government violated the constitutional guarantee against double jeopardy by prosecuting three former bank officers on criminal charges after the men had already paid civil penalties for violating Federal regulations in their management of five banks in Oklahoma.

Whether combined criminal prosecution and administrative penalties amounts to double jeopardy has been a troublesome question for both the Court and the Justice Department. In this case, Hudson v. United States, No. 96-976, the United States Court of Appeals for the 10th Circuit, in Denver, upheld the prosecution.

The Government has recently filed a Supreme Court appeal in a separate case, Metzler v. S. A. Healy Company, No. 96-1299, in which the Seventh Circuit ruled that the Occupational Safety and Health Administration could not impose an administrative fine for conduct that had already been the subject of a criminal prosecution.

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