Lawyers, guns, and money: what price justice?

• Author: Terry, Timothy R.
• Position: Man tried for murder protests due to corrupt judge - Supreme Court Review - Case Note

Bracy v. Gramley, 117 S. Ct. 1793 (1997)

1. INTRODUCTION

   In Bracy v. Gramley,(1) the United States Supreme Court held that a triple-murder defendant, William Bracy, who was convicted by a judge who was subsequently convicted of bribery, showed "good cause" for discovery on his due process claim of judicial bias.(2) The Court stated that the Due Process Clause(3) guarantees a fair trial before a disinterested judge.(4) Here, the presumption in favor of a public official's probity was rebutted by Judge Thomas J. Maloney's criminal convictions.(5) Therefore, the defendant, who made specific allegations that his trial judge was biased against him and that his attorney was complicit in the corruption, deserved an opportunity to show that he was entitled to relief.(6)

   This Note argues that the very fact that Judge Maloney presided over the Bracy trial was a due process violation in and of itself because it denied the accused his right to a fair and impartial judge.(7) This Note also contends that the Court's well established position on judicial bias claims demanded something more than the diffidence shown here; Bracy's conviction should have been reversed outright with orders for a new trial.(8) This Note explores and discounts the possible reasons for the Court's reluctance to act boldly in this ease.(9) Finally, this Note concludes that little will change as a result of the Bracy decision unless lower court judges take the initiative the Supreme Court declined to exercise.(10)

2. BACKGROUND

   1. HABEAS CORPUS

      Bracy petitioned the federal district court for habeas corpus relief.(11) The writ of habeas corpus(12) provides a unique and exclusive federal shield for protecting individual liberty from law. less or arbitrary state action.(13) The writ provides a remedy to state prisoners for any form of unacceptable restraint.(14) Rule 6 of the rules governing habeas corpus dictates discovery procedures in habeas corpus matters.(15) Unlike the ordinary civil litigant in federal court--who is automatically entitled to discovery--the habeas petitioner's access to discovery is left to the discretion of the court under Rule 6(a).(16) Moreover, because the writ does not authorize "fishing expeditions" supported by mere conclusory allegations, any petitioner requesting either discovery or an evidentiary hearing must make sufficiently specific factual allegations.(17) Rule 6(a) is intended to prevent such abuse by mandating prior court approval of all discovery requests.(18) Therefore, federal courts have the power to entertain habeas petitions "as law and justice require" by fashioning "appropriate modes of procedure."(19)

      A habeas petitioner must clear a number of procedural hurdles before she may even be heard. First, a petitioner must be "in custody"(20) in order to seek habeas relief.(21) Second, prior to seeking collateral relief in federal court, a state prisoner first must exhaust his state court remedies.(22) The exhaustion doctrine grants state courts an opportunity to hear a claim and consider allegations of legal error free of federal interference.(23) While presenting a claim to the highest state court meets the exhaustion mandate,(24) federal courts will consider only those claims of petitioners meeting certain requirements;(25) a claim must present a cognizable issue for review(26) and must clear certain other procedural hurdles(27) for federal jurisdiction to apply.(28) Only those violations of state or federal law rising to a constitutional level, resulting in fundamental unfairness in violation of the Due Process Clause,(29) are cognizable in habeas proceedings.(30)

      Once the procedural hurdles have been cleared, the court will evaluate the alleged error. In Brecht v. Abrahamson,(31) the Supreme Court held that when the error complained of is a constitutional trial error, the remedy of habeas corpus is appropriate only if the error "had substantial and injurious effect or influence in determining the jury's verdict."(32) However, the Court distinguished constitutional trial errors from constitutional structural errors, noting that the latter variety, because of their very insidiousness, require automatic reversal.(33) The Court reasoned that "[t]rial error . is amenable to harmless-error analysis because it `may . . . be quantitatively assessed in the context of other evidence presented in order to determine [the effect it had on trial].'"(34) Judicial bias, however, is a structural defect not amenable to harmless-error analysis.(35) That is, the Due Process Clause requires that a defendant receive a fair trial before a disinterested judge.(36)

   2. JUDICIAL BIAS

      The test used to evaluate judicial bias claims was established in Tumey v. Ohio.(37) Ed Tumey was arrested, charged with unlawful possession of an intoxicating liquor, and brought before the mayor(38) of North College Hill, Ohio.(39) Tumey moved for dismissal arguing that, because the mayor and his village received a portion of any fines collected,(40) the mayor was biased against him and therefore barred from trying him under the Fourteenth Amendment's Due Process Clause.(41) The mayor denied the motion, convicted Mr. Tumey, and imprisoned him pending payment of a fine.(42) The Ohio Court of Common Pleas reversed, holding that the mayor should have disqualified himself because of his interest in the trial's result.(43) That decision in turn was struck down by the Ohio Court of Appeals.(44) The Ohio Supreme Court dismissed the petition in error(45) for lack of a debatable constitutional question, and the United States Supreme Court granted review.(46)

      The Court cited a series of lower court decisions for the proposition that disqualification is required when those acting in a judicial or quasi-judicial role have an interest in the controversy to be decided.(47) The real question, the Court continued, is "to what degree or nature" the interest must be.(48) The Court noted that the Fourteenth Amendment's due process guarantee clearly is violated if the judge has "a direct, personal, substantial pecuniary interest in reaching a conclusion against [a defendant] in his case."(49) It is "certainly not fair... [for a defendant to have] the prospect of [a prospective] loss by the [judge] . . . weigh against his acquittal," because such concerns lie outside the issue of guilt or innocence.(50)

      The Court established a strict standard by which future tribunals would evaluate judicial bias claims:

      Every procedure which would offer a possible temptation to the average

      man as a judge to forget the burden of proof required to convict

      the defendant, or which might lead him not to hold the balance nice,

      clear, and true between the state and the accused denies the latter

      due process of law.(51)

      The Court emphasized that, even though all judges might not be tempted by the prospect of a $12 windfall,(52) such a hair-trigger standard was necessary.(53) The Court explained that "the requirement of due process of law in judicial procedure is not satisfied by the argument that men of the highest honor and greatest self-sacrifice could carry it on without danger of injustice."(54) This served as the standard in the few Supreme Court judicial bias cases that have come to bar in the seventy years since Tumey.(55)

      Following the same tack as the Tumey Court, the Court in In re Murchison concluded that a judge may not preside over a case in which he or she has an interest.(56) A judge with a stake in the outcome of a trial violates the due process guarantee of a fair trial before a fair tribunal.(57) This guarantee, at the very least, necessitates the absence of actual bias at trial.(58) The Court clarified that the American judicial system requires an unusually strict standard for the adjudication of judicial bias claims: "[O]ur system of law has always endeavored to prevent even the probability of unfairness."(59) Whether a claim presents such a possibility depends upon the context and the nature of the interest.(60) Characterizing the Tumey standard as appropriate, the Court voiced its intention to err on the side of caution: "Such a stringent rule may sometimes bar trial by judges who have no actual bias and who would do their very best to weigh the scales of justice equally between contending parties. But to perform its high function in the best way [justice must satisfy the appearance of justice.'"(61)

      In a case remarkably similar to Tumey, the Supreme Court in Ward again held that a defendant tried before a mayor's court was denied the due process right to a fair trial before an impartial judicial officer.(62) The Court based its holding on the principles laid down in Tumey, specifically invoking the Tumey "test."(63) The Court further asserted that for a judge to be deemed biased he need not share directly in the fines levied by his court.(64) This condition "did not define the limits of the principle" governing judicial bias claims.(65) That principle requires nothing more than a possible temptation that might lead a judge to be biased.(66) The Court concluded that the circumstances under which the petitioner was convicted were constitutionally infirm:

      Plainly that "possible temptation" may also exist when the mayor's executive

      responsibilities for village finances may make him partisan to maintain

      the high level of contribution from the mayor's court. This [as in

      Tumey] is a "situation in which an official perforce occupies two

      practically and seriously inconsistent positions, one partisan and the

      other judicial, and necessarily involves a lack of due process of law."(67)

      Two 1986 cases reaffirmed the Tumey test.(68) The first, Vasquez v. Hillery, involved a habeas corpus petition challenging a murder conviction on equal protection grounds because African-Americans were systematically excluded from the grand jury.(69) In upholding the habeas challenge, the Court said:(70)

      When constitutional error calls into question the objectivity of those

      charged with...