Cases by Issue - Discovery and Inspection

Banks v. Dretke - Oral Argument

Fri, 09 Jan 2009 14:49:07 +0000

Case:

Banks v. Dretke

Media File:

02-8286_20031208-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of George H. Kendall

Chief Justice Rehnquist: We'll hear argument next in No. 02-8286, Delma Banks v. Doug Dretke.

Mr. Kendall.

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

This case presents three issues, two arising from purposeful and recurring misconduct by the trial prosecutors, and a third from constitutionally deficient defense counsel.

Prior to trial, the prosecutors promised to disclose discoverable material to the defense.

They knew that Robert Farr would testify as a key witness at each phase of trial, and they knew that he was an informant and had been paid for his services.

Mr. Farr did in fact take the stand at both phases of this trial.

He denied he was an informant.

He denied he received any consideration for his work.

He denied tipping off the authorities that Mr. Banks would be taking a trip to Dallas.

He denied setting up Mr. Banks for arrest.

The prosecutors knew that when Mr. Farr gave his testimony it was not truthful.

They did not rise to their feet and ask Mr. Farr to correct this testimony.

Justice Kennedy: And it... is it your contention that this is a basis simply for setting aside the sentencing phase of the trial?

Mr. Kendall: We have asked this Court to affirm the district court, who... who did grant relief on death sentence.

We're not asking for relief on guilt innocence on... on the Mr. Farr claim.

Justice Kennedy: All right.

I'm... I'm... I'm somewhat puzzled by that, but you have three different claims to discuss here and I don't want to take too long.

It... it would seem to me that, if it... if... if this is the evidence at trial, that... that there's no additional obligation or special obligation at sentencing where that becomes really a secondary matter.

Mr. Kendall: Your Honor, the reason why we take that position is that his testimony at the punishment phase is absolutely critical for the state to get the death penalty in this case.

The district court recognized that.

The Fifth Circuit in this case said that that testimony was crucial.

What he told the jury was that Mr. Banks had returned to Dallas to get a gun so that Mr. Banks could on the return trip commit armed robberies and take care of and eliminate witnesses.

There was no other testimony that came close to matching that at the punishment phase, and the state had the burden to establish beyond a reasonable doubt that Mr. Banks would be a danger in the future.

If they didn't satisfy that--

Justice Scalia: Well, but... but you... you have the burden, don't you, to show that the outcome would have been... would have been different had the... had the state come clean at the beginning?

And as I understand it, you... you assert that... that he would not... a jury would not have judged him as harshly if the jury had known that he was going to get the gun in order that Farr could commit robberies with... with apparently his assistance, rather than what Farr had told them, namely that he had gotten the gun in order that he would commit future robberies, right?

And you think that would have made the difference, whether he's getting the gun to let somebody else kill or getting the gun to kill himself?

Mr. Kendall: --Your Honor, Mr. Banks denied at trial that he had any intent to commit any crime whatsoever with regard to this robbery.

And Mr. Farr had made it clear--

Justice Scalia: Understand.

But... but... but you're saying he admitted that... that he got the gun so that Farr could commit robberies, right?

Mr. Kendall: --We think there's a world of--

Justice Scalia: And that would have... would have... would have tapped a wellspring of mercy in the... in the jury's breast?

I... I don't really see how it would make that much difference.

Mr. Kendall: --No, Your Honor.

The point is... is that the... the state could not ask the jury to impose the death sentence unless it first found beyond a reasonable doubt that Mr.... there was a strong likelihood that Mr. Banks would commit acts of violence in the future.

We think there's a clear difference, and the trial prosecutors recognized this, between Mr. Banks going to get a gun so that Mr. Banks could rob and kill, as opposed to providing instrumentality.

But more importantly, Your Honor, Mr. Farr recanted that testimony at the Federal hearing and that recantation was found credible by the district court.

Justice Scalia: Recanted what testimony?

Mr. Kendall: No one had the intent to rob anybody.

That was a ruse that Mr. Farr used--

Justice Scalia: Banks admitted that himself.

Mr. Kendall: --No. Mr. Banks admitted on the stand that he had finally agreed to accompany Mr. Farr to Dallas to get a gun.

But Mr. Farr denied... Mr. Banks denied that he had any intent whatsoever to commit any crime, and he flatly denied that assertion.

Mr. Farr... this was a ruse that Mr.--

Justice Scalia: What... what... what was... what was the gun going to be obtained for?

Self-defense?

Mr. Kendall: --It was--

Justice Scalia: These people were being--

Mr. Kendall: --it was a ruse--

Justice Scalia: --threatened by somebody?

Mr. Kendall: --Justice Scalia, it was a ruse that Mr. Farr used that was not true--

Justice Scalia: Oh, that... that explains--

Mr. Kendall: --to--

Justice Scalia: --why Farr got it.

It doesn't explain why Banks got it.

Mr. Kendall: --But that was not the theory that the case... that the prosecutors asked the jury to conclude beyond a reasonable doubt that Mr. Farr would... that Mr. Banks would be dangerous in the future.

The district court granted relief on that and we think that clearly we have shown materiality on that point.

Justice Souter: As to materiality--

--But he... I take it you do not agree that you have to show that the result would have been different?

Mr. Kendall: We... we do not agree with that.

In fact, we believe that this Court has not retired the Alcorta and Napue standard, and... and it shouldn't use this case.

The... the standard in Alcorta and Napue that says if the Government puts up perjured testimony, that if there's a possibility that that testimony affected the judgment or if the judgment is reversed.

We do acknowledge that this Court in Brecht did provide a rule generally for habeas corpus that is different from that rule.

But it said in footnote 9 of that decision that where there are cases where there was a pattern of misconduct, that the Brecht rule might not apply.

There is clearly a pattern of misconduct by the Government in this case.

Justice Scalia: Well, you have to show cause and prejudice, and I thought that under Strickler, the... the necessity of showing prejudice requires that you show that there is a reasonable probability that the sentence would have been different.

Mr. Kendall: Your Honor, we've not--

Justice Scalia: You... you don't think you have an obligation to show reasonable probability--

Mr. Kendall: --We do.

We do, and... and--

Justice Scalia: --that the sentence would have been different.

Mr. Kendall: --We do, Your Honor, and the district court--

Justice Scalia: You... you acknowledge that you have to do that or?

Mr. Kendall: --On... on cause, we do, Your Honor, and we... we... we've met that clearly.

So it's our submission here that Mr. Farr's testimony was critical--

Chief Justice Rehnquist: Alcorta was a case on direct review?

Mr. Kendall: --It was a habeas case, Your Honor, but the Court has not distinguished between--

Chief Justice Rehnquist: But decided long before a lot of our other habeas cases, which are perhaps somewhat limited to relief?

Mr. Kendall: --That's correct, Your Honor, but the Court, since Brecht, in... in subsequent cases, in... in Kyles and in Strickler, has continued to refer to the fact that there's this category of misconduct that has always been treated differently, and we do not see why it shouldn't be applied here.

However, we believe that, given the importance of Farr in this case to the state's case that we meet the reasonable probability standard, or whatever the... other standard the Court would impose on us.

The Fifth Circuit reversed the district court--

Justice O'Connor: May I ask you whether the record shows that counsel for Banks and Banks thought Farr was an informant back in 1980?

Mr. Kendall: --There was repeated effort by trial counsel to answer that question.

At a pre-trial hearing, counsel specifically asked the chief investigator, who's your informant?

And the investigator said, I'm not going to tell you.

When Mr. Farr was on the stand, both at the guilt phase and at the sentencing phase, counsel asked, are you working for the state, are you an informant?

Justice O'Connor: Well, so there was a suspicion of that back in '80?

Mr. Kendall: And I think after trial, given the--

Justice O'Connor: But then 16 years went by.

Mr. Kendall: --Yes, Your Honor, because there were--

Justice O'Connor: And... and this wasn't evidence that was under lock and key.

There were witnesses.

They just weren't easily available.

Mr. Kendall: --Your... Your Honor, there was... it was very difficult for us to obtain this proof.

We... we had every right to belief the... given the fact that the prosecutors had said, Mr. Farr has been truthful with you in every way, that whoever the informant was in this case, it was not Robert Farr.

We only began to think differently about this when we finally got access to another of the critical state witnesses, Charles Cook, who told us in 1992 that some of his testimony was not truthful.

Justice Kennedy: Suppose we find that the... or... or conclude that the defense counsel was not as diligent as it ought to have been on this point.

Is that somehow excused by the prosecution's failure to present the Brady material?

Mr. Kendall: Your Honor, we think that we acted reasonably and diligently in post-conviction.

We were misled by the state, and in fact, we used that state habeas... we filed in... in... in 1992 the claim on information belief Farr was an informant in this case.

Justice Kennedy: Well, it's... there's perhaps a slight difference in being misled and simply a... a case in which the prosecution does not come forward with Brady material.

There... they may be some distinction in the two.

What is the standard that you would have us apply in this case to rule for you with reference... if... if we base that ruling on the prosecution's failure?

Is it just a standard Brady?

Mr. Kendall: That would be under Strickler.

Our view is that because of the misrepresentations in this case, we were... we were allowed to rely on those misrepresentations.

We wanted to litigate Farr's informant status in the state habeas proceedings, but we couldn't get the evidence to prove that.

Justice Scalia: What--

Justice Souter: --But specifically the misrepresentations were what?

Mr. Kendall: Were that Farr had... had... had denied that he was a paid informant.

He was a paid informant, and the prosecutors in their closing arguments told the jury that he had been completely--

Justice Souter: Okay.

Mr. Kendall: --truthful in every way with you.

Justice Souter: Had they also not given, or... or before trial had they not also said, we'll give you everything in the file?

Mr. Kendall: They said, you don't have to file a discovery motion, we will disclose to you material that is discoverable, and this clearly was discoverable material--

Justice Souter: Okay.

Mr. Kendall: --when they put him on the witness--

Justice Ginsburg: --But they didn't... the defendant didn't ask to discover anything.

The prosecutor said, you know, everything is available to you.

Mr. Kendall: --He--

Justice Ginsburg: What did... what... what did he ask for?

What did defendant ask for?

Mr. Kendall: --He filed a standard discovery motion, but the... the Government long before that said, you don't have to file a motion, we'll provide material that's discoverable to you.

And there's no argument... the... the state has tried to say that it, even by calling an informant, it does not have to reveal--

Justice Ginsburg: Did... did--

Mr. Kendall: --that status.

Justice Ginsburg: --did... did the defendant get anything after the prosecutor said, you don't have to file any formal motion, we'll give you everything you're entitled to?

Mr. Kendall: It... the prosecution revealed prior convictions on its witnesses.

It did not disclose Mr. Farr's informant status or arrangement.

It did not disclose with regard to Charles Cook.

Justice Kennedy: Were there documents--

Justice Souter: --Okay, but--

Justice Kennedy: --Were there documents or arrest reports to show Farr's informant status, or was this just a... a... a circumstance where the prosecution should have said orally that this is his status?

Mr. Kendall: When we finally obtained what was represented to us to be the full prosecution file in this case, there was not one notation in there with regard to Mr. Farr, identifying him as an informant.

They were obliged to--

Justice Kennedy: So then there... you're not complaining that documents weren't turned over?

Mr. Kendall: --That's correct.

They--

Justice Kennedy: You're complaining that the... that... that a statement was not made by the prosecution?

Mr. Kendall: --That... that we believe the law required them, once they decided to put this informant on the stand, to disclose that factor to the defense.

Justice Souter: Because it was Brady material?

Mr. Kendall: Because it was Brady material.

Justice Souter: All right.

Now, may I go back to Justice Ginsburg's question?

You... you... you gave us some examples of... of material that was turned over to you under this policy in... in which it was not necessary to file a motion.

Was that material turned over you in response... to you in response to a specific request from you, or did they simply come up with this and say, this is the material that you could get if you moved for it?

Mr. Kendall: It was turned over after a general discovery motion was filed, but that discovery motion was never taken up at a hearing.

This was disclosed--

Justice Souter: All right.

Did the general discovery motion refer specifically to what they gave you, or was the motion simply, give us everything we're entitled to?

Mr. Kendall: --It... I believe it said give us prior convictions.

And--

Justice Souter: Well, then that was what they gave you.

Mr. Kendall: --And that's all that they provided, that's correct.

Justice Souter: I mean, the problem that I'm... I'm having with this is, I thought at... and... and I... I... I got into this myself, I realize, but I thought they had said, in effect, we'll give you everything you're entitled to.

Now we're getting down to greater detail, and I think the problem is mine, but I want to follow it through.

They apparently said, you don't have to file a specific motion.

Justice Ginsburg raises the question, well, what did you ask for even though you didn't have to file a specific motion?

You say that you filed a general discovery request that specifically did ask for prior convictions.

They gave you prior convictions.

My concern is that the understanding between counsel was, we'll give you what you ask for, but we are not volunteering by our representation to give you anything you don't ask for.

If this is correct, then the only reason you would be entitled to this would be an affirmative Brady obligation, whether you ask for it or not.

Is it the Brady obligation or do you think they had undertaken something more extensive than Brady required?

Mr. Kendall: I think that they assured counsel that whether it was... whether they had to disclose something under state law or under Brady, that there was no need for litigation.

They would provide Brady material--

Justice Souter: But did they issue or counsel that counsel would not have to ask for it?

Mr. Kendall: --The letter... the letter says, you do not have to file a motion, we'll provide you with material that the law requires us to disclose--

Justice Souter: That the law requires us to disclose?

Mr. Kendall: --That's correct, Your Honor.

Justice Scalia: Material.

I... I would take that to mean documents that we have that you're entitled to, and we don't know that there are any documents reflecting... reflecting Farr's informer status, do we?

Mr. Kendall: But, Your Honor, it said in lieu of a motion, and so I think it was fair for counsel to include that there needed to be no litigation about discovery--

Justice Scalia: Well--

Mr. Kendall: --that the Government understood what state law and Federal law required.

Justice O'Connor: --But maybe there had to be a request, not litigation, but say, tell me, was he an informant?

Mr. Kendall: Well, Your Honor--

Justice O'Connor: Tell me.

Did you every ask that?

Mr. Kendall: --I think after these assurances, I think counsel--

Justice O'Connor: Please answer that question.

Mr. Kendall: --I'm sorry.

Justice O'Connor: Did you ever ask the prosecution whether Farr was an informant?

Mr. Kendall: At trial, there's nothing in the record where the prosecution was specifically asked.

It's state habeas.

We pled a... a claim on information belief that he was a paid informant.

That required the government lawyer who was... who was one of the trial prosecutors to respond, we believed, truthfully.

He did not respond to that, and that--

Justice O'Connor: Now, when was this?

Mr. Kendall: --That was in state post-conviction proceedings, and the... and he has was required to respond truthfully to that, and under state law that--

Justice Scalia: He didn't respond falsely.

He just didn't respond.

Mr. Kendall: --But under state law that is a no, that is a denial.

Justice Scalia: But--

Mr. Kendall: But he--

Justice Scalia: --A failure to respond is a no, rather than... than a yes?

Mr. Kendall: --Any... any factual allegation of petition that is not addressed specifically in the answer is treated as--

Justice Scalia: So as a--

Mr. Kendall: --a denial.

Justice Souter: --And... and in addition--

Justice Ginsburg: --It was more than that though, wasn't it?

It... they... in... in fact, the state put it in a general denial.

It denied each and every allegation of the complaint, including the allegation that Farr was an informer.

Mr. Kendall: Well, it's clear that when you read their answer that the state had denied our allegation that Mr. Farr was a paid informant in this case.

Justice Souter: And they had in effect at trial in the jury argument vouched for his truth, as I understand it.

Mr. Kendall: On... on both at the guilt innocence phase and at the punishment phase.

Justice Scalia: Yeah.

That... that's the most shocking thing.

Do... do we know that... that counsel who allowed Farr to lie on the stand, and indeed went on to argue to the jury about Farr's testimony, do we know that counsel knew that that was a lie?

Mr. Kendall: Your Honor, there aren't--

Justice Scalia: I mean, you... well, you can argue it was his responsibility, you know, but I'm not talking about whether it was his responsibility.

Mr. Kendall: --Mr. Elliott gave an affidavit in state post-conviction that said that he was aware of all the facts pursuant to the investigation and the presentation of evidence in this case.

I would think that, given Farr's important status in this case, there's no doubt that he knew.

At the Federal evidentiary hearing, he did not in any way try to say that he did not know that Farr's... was... had this informant status until much later at the trial.

Justice Breyer: In 19--

Justice O'Connor: --This is a bit of an aside, but do you know whether any disciplinary proceedings were ever brought against the prosecutors?

Mr. Kendall: There have been absolutely no disciplinary proceedings whatsoever.

Unknown Speaker: Can I ask you about--

Justice Kennedy: --But there's a... a number... you have Banks and I take it... tell... you want to talk to us about Cooksey in the... in... in the sentencing phase.

Mr. Kendall: Let... let me... we... let me go to the Cook claim if I could.

There was another very troubling due process claim raised in this case, and that was at the key guilt phase witness.

Mr. Cook had testified pursuant to a deal and that the state had withheld impeachment material on him.

Three months before the evidentiary in the hearing in this case, we received for the first time a lengthy pre-trial statement that had all kinds of impeachment material in that and that showed beyond any doubt that Mr. Cook had lied in his testimony before the jury that he had not in any way, shape, or form rehearsed his testimony with the state.

From the time of that disclosure until the evidentiary hearing, it was clear that this transcript would serve as evidence for us to prove up our claim that the state had suppressed material, impeachment material, on Mr. Cook.

And Mr. Elliott, the trial prosecutor--

Justice Scalia: What... what did Cook testify to that was... that was essential to the... to the sentence?

Mr. Kendall: --This was the... the key guilt phase witness, Your Honor.

He was the... the entire narrative of the crime in the--

Justice Scalia: Yeah, but you're... you're... you're not asking for the guilt to be... to be overturned.

You're asking for the sentence to be.

Mr. Kendall: --With regard to the... Mr. Farr, we're asking only for sentence relief.

With regard to Cook, we're saying he was the crucial guilt phase witness.

Justice Scalia: So you're asking for reversal of the conviction on the basis of Cook?

Mr. Kendall: That's correct, Your Honor.

Justice Scalia: Okay.

What... now, what... what was essential to the conviction that... that he testified to?

Mr. Kendall: He... he provided... he had to... the... the prosecutor in his opening statement told the jury, Mr. Cook is our critical witness, you have to believe him for us to win this case.

He said that over and over again.

Cook presented the confession--

Justice Stevens: Well, he testified that the defendant confessed to him several times, didn't he?

Mr. Kendall: --He... he was the only person who provided information that Mr. Banks had confessed.

He was the only person that tied Mr. Cook to... Mr. Banks to any other evidence in this case.

The trial prosecutor portrayed him accurately.

He was the critical witness for the Government at the... at the guilt phase of trial.

Justice Scalia: And... and what do you say the state withheld with regard to Cook?

That it had gone over his testimony in... in advance?

Mr. Kendall: Well, what he was asked, the first question on cross-examination was, who have you talked to about your testimony?

He said nobody.

He said, you haven't talked to any about this case?

I haven't spoken to anybody.

That was a bald-faced lie.

Justice Scalia: Well, it's on its face incredible anyway.

You think the jury believed it?

Mr. Kendall: Well, Your Honor, the--

Justice Scalia: They think the prosecutors can just put him on without even asking him what he was going to testify about?

Mr. Kendall: --Well, they certainly would... they certainly would have believed that if the Government would have disclosed this transcript that showed that three days before trial Mr. Cook had a very difficult time keeping his narrative about this crime straight.

Justice Kennedy: How... how does that work?

When this occurs and... and this... these questions are set forth in footnote 4 of your brief... when this occurs, does a Brady obligation arise at that point?

Mr. Kendall: Your Honor, I think that--

Justice Kennedy: I'm the... I'm the prosecutor, I'm sitting there, I hear this guy say that he's never talked to me and I know that he has and I know that I have 71 or 74 pages of notes.

Do I now have a Brady obligation?

Mr. Kendall: --Your Honor, for decades the Court has said that when a government witness lies, the government attorney has the obligation to correct that.

The Brady obligation continues, it's pre-trial and it's during trial.

It can arise during trial depending on... on what the government witness says, and it's clear that after Cook gave that answer, that the Government was obligated, one, to have him correct his testimony, but certainly not, after he'd given that testimony, to get up in front of the jury and say, Mr. Cook was completely truthful.

Justice Kennedy: But my question is, is there a Brady obligation?

Mr. Kendall: There is a Brady obligation, absolutely.

Chief Justice Rehnquist: Well, now, is your point... your point is more than just that he said it, he didn't admit that he had talked to other people before trial, is it?

Mr. Kendall: No, no, no, because it... it was clear that what the defense was trying to show was that Mr. Cook should not be believed because he's really been worked over by the prosecutors to get his story together.

And that's exactly what the transcript that wasn't disclosed demonstrated.

He was mocked during this pre-trial statement by the prosecutors who were preparing him because he was making so many mistakes and getting things all out of order.

They didn't believe he was a credible witness three or four days before trial, and the only reason that he was, or might have appeared credible, was because of this session.

This was classic impeachment material.

The Government had this in their briefcase at trial.

They... they disclosed the... the brief statement that Mr. Cook had given four minutes before but not this one.

Justice Ginsburg: But you lost on this point in the... in the Federal court?

Mr. Kendall: Unfortunately, Justice Ginsburg, we did not lose on it.

The district court did not adjudicate that claim.

Justice Breyer: But your time... your... your light's flashing, and I... when you come back, I'd appreciate your asking... answering one factual question I have on this.

In 1996, you're in Federal court with five witnesses about Farr being a... an informant.

In 1992, you say you learned from Cook information that led you to think you'd find those witnesses.

In 1992 and '93, you are in state habeas.

Why did you not either engage in that kind of discovery in state habeas or find those witnesses for the state habeas court?

Mr. Kendall: Because we... efforts were made, we could not find Farr.

But we... efforts were made, and we could not find Farr, but we went right to the horse's mouth.

James Elliott, the prosecutor in this case, knew that he was a paid informant.

When we raised that claim in our petition, he had an obligation then to... to tell us honestly was he an informant or was he not, and he did not do so.

We wanted to litigate his status, Farr's status in the state court.

We were prevented from doing so because of the lack of candor and the lack of discovery from the prosecutor.

He could have made this very simple and said, yes he's the guy, let's litigate this in state court.

He didn't do so.

Let me turn briefly to the ineffective assistance claim.

The district court granted relief on that claim after hearing information that this Court has said time and again is relevant to the capital sentencing process.

The Fifth Circuit overturned that grant of relief by making a... two legal mistakes.

First, unlike the district court, and... and not following the decisions from this Court, the... the Court vulcanized its review of our mitigating evidence instead of looking at it in its entirety and weight that against the aggravation.

It broke this evidence up into three categories and said, looking at each one, weighing these on the scale, the panel found no reasonable likelihood of a different result.

That is clear--

Chief Justice Rehnquist: What... what categories were--

Mr. Kendall: --There was mental health evidence.

There was testimony about Mr. Vetrano Jefferson recanting his testimony that... about who was the... who had been the aggressor in a fight before this crime, and then the testimony offered by the parents in this case.

Chief Justice Rehnquist: --All going to guilt or some going to sentencing?

Mr. Kendall: All... all going to sentence, Your Honor.

This was--

Chief Justice Rehnquist: All going to sentencing?

Mr. Kendall: --This was only about sentence, Your Honor, that's correct.

Justice Scalia: Of course, the parents had testified in the... and I think he even said that they were good parents, didn't he?

Mr. Kendall: Your Honor--

Justice Scalia: And... and... and the fact that they were these horrible parents were... was going to be testified to by a Dr. Pina, is that it?

Mr. Kendall: --Your Honor, there was no claim that these were horrible parents.

They were loving parents, but they was a very troubled family that Mr. Banks--

Justice Scalia: I see.

Mr. Kendall: --grew up in, and it's... there was evidence that came out that was plainly relevant to the sentencing decision in this case.

Justice Scalia: It came out of whose mouth?

Mr. Kendall: It came out of Mrs. Banks' mouth as a--

Justice Scalia: Who--

Mr. Kendall: --Mrs. Banks, the mother--

Justice Scalia: --What did... what did she say?

Mr. Kendall: --in the state habeas proceedings.

Justice Scalia: What did she say?

Mr. Kendall: She said that, for example, her son had been subjected to all kinds of problems because of his very serious dermalogical ailment that he had from birth all through his life.

Justice Scalia: He had a skin... a skin problem--

Mr. Kendall: A very serious--

Justice Scalia: --and you think that would have altered the jury's--

Mr. Kendall: --Well, that was one piece of the... of the court--

Justice Scalia: --All right.

What... what... I... let... what... what is all of it?

Mr. Kendall: --That her... her husband unfortunately had been an... a alcoholic and... and for years when he became drunk would terrorize her, terrorize the children.

She often had to take the children and leave the house to assure her safety and Mr. Bank's safety and his siblings' safety.

Justice Scalia: She testified to that?

Mr. Kendall: She... she proffered that in state court, that's correct, Your Honor.

And then the experts, Mr. Cunningham in Federal Court, testified about what all this does to an individual in the formative years of life.

This is--

Justice Ginsburg: There was one specific incident of the father tying the boy to a tree and whipping him.

Were there any other specific incidents or just general allegations that when he... he... when the father became drunk--

Mr. Kendall: --It... it--

Justice Ginsburg: --he became violent.

Mr. Kendall: --It was... it was Mrs. Banks' testimony that there had been repeated instances where, to avoid harm, they had to leave the home.

In... there were some problems that--

Justice Scalia: Did she testify about being tied to a tree?

Mr. Kendall: --Did--

Justice Scalia: Did... did Mrs. Banks provide the testimony about his being a tied to a tree and whipped?

Mr. Kendall: --No, she did not.

Justice Scalia: Who provided that?

Mr. Kendall: Mr. Banks provided that.

Justice Scalia: Mr. Banks provided that.

Mr. Kendall: Yes.

Justice Scalia: Not terribly credible if--

Mr. Kendall: Well, Your Honor, the state has never... in state court they did not attempt to show that any of this proffer was inaccurate or not true.

Their position in state court was simply that the trial lawyer had done a good job, and so we'd failed to show prong one of Strickland.

In the Federal court--

Justice Scalia: --Well, I'm... I'm just concerned whether it would make any difference.

One... once again, your burden is to show that would have made a difference.

Mr. Kendall: --And the... and--

Justice Scalia: Skin problems and an alcoholic father, you know, who... who on the basis of Banks' mother's testimony terrorized the child and Banks' testimony that he was tied to a tree and whipped.

Mr. Kendall: --Your--

Justice Scalia: I... I just--

Mr. Kendall: --Well, Your Honor, the... the testimony here was that these were very serious--

Justice Scalia: --And this was--

Mr. Kendall: --things that plagued Mr. Banks' life--

Justice Scalia: --and the jury would have thought that this explains his... his... his cold-blooded murder of... of the victim for his car?

Mr. Kendall: --Well, Your Honor, it might not fully explain it, but it would say that he's not the type of offender for whom the death penalty needs to be carried out against.

I'd like to reserve the rest of my time for rebuttal.

Argument of Gena A. Bunn

Chief Justice Rehnquist: Very well, Mr. Kendall.

Ms. Bunn, we'll hear from you.

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

From 1983 to 1996, Banks filed three separate state habeas applications raising numerous claims, but Banks failed to diligently pursue his current Brady and Strickland claims during these state proceedings.

He elected instead to expend his efforts pursuing other claims.

It wasn't until Federal habeas proceedings that he turned his efforts to developing the instant claims.

Justice Scalia: Did... did the state deny in one of these habeas applications, deny that Farr was an informant?

Ms Bunn: No, Your Honor, the state never denied it.

It did fill--

Justice O'Connor: Well, now wait a minute--

Justice Ginsburg: --Then explain to me what was--

Justice O'Connor: --in... in... in the state habeas proceeding, the state submitted a response to the petitioner's petition and denied all the allegations in the petition, which included the assertion that Farr was a paid informant and that the state had withheld that information from Banks.

The state denied that, did it not?

Ms Bunn: --No, Your Honor.

It is not our interpretation of the record that it did, because this single sentence found in a 145-page petition was buried in a... basically a laundry list of claims of prosecutorial misconduct, at the end of that section containing a great number of other allegations, which the state responded to specifically by saying, first a number of them had been addressed in other sections of the brief, including the Swain claim, and another Brady claim that was fully developed.

And then it responded to the remaining claims by saying that they were all procedural... procedurally defaulted based on the lack of a contemporaneous objection.

Justice Ginsburg: Ms. Bunn, did not the state say, we deny each and every factual allegation in this complaint?

Ms Bunn: Yes.

There was a general denial at the beginning of the... the state's answer to the 145-page brief.

However, the context--

Justice Scalia: You better be careful what you deny, don't you think?

I mean, each and every would include that, even if it's buried in, you know, if it's buried in a lot of other stuff.

I mean, you could have said, you know, everything's so buried we can't tell what's what, but you didn't say that.

You said, we deny each and every.

Ms Bunn: --Yes, Your Honor, and it does appear that--

Justice O'Connor: Is it that the case that... do you now concede that Farr was paid something for his information--

Ms Bunn: --Yes.

Justice O'Connor: --by the state.

Ms Bunn: Yes.

Well, not for information.

He was paid to assist police in obtaining the murder weapon.

Justice O'Connor: Yeah.

And did the state prosecutor ever disclose that during the trial, even though he said, no, everything's perfectly truthful here?

Ms Bunn: No, Your Honor.

The state never--

Justice Scalia: He knew... he knew that Farr was testifying falsely and he... he let that testimony go, and indeed relied on it in his summation to the jury?

Ms Bunn: --What the trial prosecutor knew... there's nothing in the record to indicate the trial prosecutors actually knew about the money that Bank... that... that Farr was paid several months before the trial in this case by... by police investigators.

Justice Stevens: But isn't he charged with knowledge of what the organization as a whole did?

Ms Bunn: In the... in the Brady disclosure context, certainly he is.

Justice Kennedy: Wasn't it representative of the police there at the trial the whole time to assist the prosecutor?

Ms Bunn: Not that... not that I'm aware of that the police were at the... at... really have testified in the trial.

But I believe the rule was invoked in the trial, so he did not sit in on... on Farr's testimony or any of the other state's witnesses' testimony.

But--

Justice O'Connor: Well, I assume we have to take this case on the... the premise that the state somehow knew that the state had paid the money to Farr, and I guess also had promised some kind of a break not making certain criminal charges?

Ms Bunn: --There is no evidence of any inducement of that kind to Farr in this case, no evidence of any kind of inducement whether financial or a break in... in any convictions for his testimony, contingent upon his testimony in this case.

That's what distinguishes it from cases like Bagley and Giglio.

Justice Stevens: But are you saying that because he was paid to help get the gun back rather than to testify falsely?

Ms Bunn: Yes, Your Honor.

That is correct.

Justice Stevens: So that he was paid for a critical role in the scenario that led to the indictment, rather than post-indictment false testimony.

Ms Bunn: Yes, Your Honor.

That is correct.

But again, as far as the cause issue goes, and there is no dispute that the claim is procedurally defaulted to... due to Banks' failure to develop it in... in the state court.

The dispute is whether he has established cause, and the... the basis... the focus of the inquiry in cause is the petitioner's conduct, and in this case, the state record makes clear that Banks was aware of this claim and actually alleged the claim in the petition itself.

Justice Kennedy: Well, does the petitioner's awareness that there is a... a claim supersede the prosecution's obligation to disclose Brady material, and to disclose the fact that one of its own witnesses lied on the stand?

Ms Bunn: Not that it supersedes the obligation under Brady, but it does preclude a finding of cause in a case like this where the nondisclosure--

Justice Kennedy: So the prosecution can lie and conceal and the prisoner still has the burden to... to discover the evidence?

That's your position?

Ms Bunn: --Yes, Your Honor, because in a case like this, unlike Strickler, unlike Amadeo, this is more like... more like McCleskey, where the nondisclosure, whether in trial court or in state habeas, did not prevent the petitioner from developing the claim.

Justice Breyer: But it didn't prevent it absolutely, but it made it pretty tough, didn't it?

I mean, the... sitting there in January, the prosecution has been not... been denying nonstop that Farr has been paid anything, they're beginning to get some information maybe that isn't true.

The prosecution is still denying it by denying the allegation, and they think they're going to have to find somebody who will prove... who will say that, and they can't find Farr.

So what are... what were they supposed to be doing?

They were looking for witnesses.

They couldn't find Farr.

The prosecution isn't telling them the truth apparently.

And so, what... what is it that they should have done?

Ms Bunn: Well, Your Honor, this case does not present a situation where there is a record developed on what efforts Banks expended on this case.

There's nothing in the record to indicate that Banks' counsel pursued this claim, that they sent investigators out to try to find Farr.

There's absolutely nothing--

Justice Breyer: I didn't say that.

What I said was, I was repeating what he said, that... and when they filed it in January... I don't want to repeat it again, you heard what he said too... and he said they're just learning from Cook some time in 1992 that it might be possible to get evidence that would show what the prosecution was saying was false.

So I want your opinion.

You say it's quite clear that they should have investigated this further.

Really?

Because?

Ms Bunn: --Because they were obviously aware of the claim, aware of the potential existence of the claim.

They requested no investigative assistance regarding the claim.

They investigated no discovery regarding the claim.

They... while they... what they did do was expend what at that point were pretty extensive resources pursuing and developing their Swain claim and another Brady claim.

Justice Kennedy: But you want us to say that the... that the defendant relies on his peril, at his peril, on the representations of the... of prosecution?

Ms Bunn: At... in... in a case like this where, unlike Strickler, where the evidence, the... the nondisclosed evidence was not in the sole possession of the state.

It was discoverable as... as actually ultimately have it in habeas, in... in Federal habeas proceedings.

Banks was able to procure this evidence.

Justice Souter: No, but you are... are... aren't you arguing, just as Justice Kennedy suggested, that what they should have done in this case is to go to the court and say, we want further resources to investigate, and what specifically we want to investigate is an issue which, if we are correct, the state is affirmatively lying about.

We want investigative resources to prove that state's counsel is lying.

Isn't that your position?

Ms Bunn: Well, yes, Your Honor--

Justice Souter: And for failure to do that--

Ms Bunn: --that would be--

Justice Souter: --for failure to do that, they're out.

Isn't that your position?

Ms Bunn: --That is part of our position, that essentially the absence of that, the absence of a request for investigative assistance, the absence of any--

Justice Souter: But, in the... in the... in the face of the state's representation.

In other words, if... if they asked for it, I assume the state would have said, well, we've told them that there isn't anything to this.

And... and... and you would... you're saying that they should have pursued it in the face of that for the purpose, among other things, of proving that state's counsel was lying to them?

Ms Bunn: --Your Honor, they... there was an obligation from them to pursue the claim further, yes.

Justice Ginsburg: Why wasn't there an obligation on the part of the prosecutor, having deceived the jury and the court, to come clean?

Why is the burden on the defendant, who was subjected to false testimony?

Why is... and the prosecutor knows it... why isn't it the prosecutor's burden to come clean at any stage, rather than let this falsehood remain in this record?

I just don't understand why it becomes the defendant's burden when the prosecutor is best situated to have the information, was this true or not, did we pay this informant or not.

Why isn't that a continuing obligation on any lawyer who makes a representation that's false to a court?

Ms Bunn: Your Honor, the first... first it is not... that's not the question.

It is the habeas petitioner's burden to allege and prove... provide evidentiary support for his claim.

Justice Kennedy: Well, but it is the question if... if Justice Ginsburg is right, that prosecutors have a continuing obligation.

Ms Bunn: Well, that obligation is essentially triggered by materiality, so you have that working as well.

But that does not... the... the state's continuing obligation does not basically preclude a finding of... of... of no cause in a case like this.

Justice Kennedy: Well, if I were a defense counsel, I could think of a... of a... no more damaging material of cross-examination in this case than to show Farr was paid money to come up with the story.

Ms Bunn: Well, Your Honor, again, that... that was not the... those are not the facts of this case.

There's no evidence and... and Farr has not said in post-conviction that he was paid for testimony.

Justice Breyer: Yeah, that's true, but I... I mean, what--

Justice Stevens: --But I think it's even--

Justice Breyer: --what bothers me about your position is, if we were to say that a defense counsel behaves unreasonably when he relies upon an explicit statement of the prosecutor's, such as I deny the allegation, that's to say that the justice system lacks integrity, and indeed it might contribute to that lack of integrity to impose this kind of obligation and thereby excuse a prosecutor under circumstances like this.

Ms Bunn: But to find cause in a case like this would essentially be to hold that a Brady claim can never be defaulted because--

Justice Breyer: Of course it can.

All that it requires is that a prosecutor who says, my files are open, who says that we do not, in fact, deny that we paid money for a related purpose to the witness, all it requires is that he be telling the truth.

Ms Bunn: --And I want to focus also on the... on the record itself and what Banks... Farr was never asked specifically whether he was a police informant, so he never denied that allegation.

At the guilt innocence phase, starting... it... it's in the joint appendix at page 37... in the middle of questioning by defense counsel at the guilt innocence phase about his drug... prior drug use and his drug habit, he... Farr was asked the question, and have you ever taken any money from some police officers?

And he answered no.

This was a false statement, but not to be construed as necessarily as a denial that he was a police informant, particularly given the context of the questioning.

Later in the guilt innocence, he was asked--

Justice Stevens: May I just interrupt with one question?

But isn't it even more significant that his real role in the... in the whole story is that he was the person used by the police as an excuse to go up and get the gun back two weeks after Banks had left it there, whereas the record left the impression that Banks himself wanted that gun to commit future robberies, without any explanation of the fact that the... that two weeks went by without any such request?

And then when Farr gets in the picture, they go up to get the gun, and then Farr says, because Banks insisted on it, which is not only false, but improbable and terribly prejudicial at the... at the sentencing hearing.

Ms Bunn: --Again, though, the... the materiality of Farr's... of this nondisclosure has to be... there are several factors that have to be assessed in that... in that issue.

First, the fact that Farr wasn't paid for his testimony, and the impeachment value of the informant status itself is limited to the mere fact that Farr had acted as a police informant in this case and had assisted police in obtaining the murder weapon.

But that impeachment did not extend to any inference that Farr had testified favorably for the state because he had any financial or any other kind of incentive to do so.

Justice Scalia: What... what--

Justice Stevens: --But it... it was diametrically opposed to the notion that he wanted to get the gun to commit robbery, as whereas the real purpose of the whole venture is to get the gun to give to the police.

Ms Bunn: But Farr's subjective intent did not undermine Banks' intent, and Banks actually admitted at the punishment phase--

Justice Stevens: Banks' intent as revealed in Farr's testimony, which is the only evidence in supporting that theory that Banks was dangerous for that reason.

Ms Bunn: --The difference is, Farr's testimony was... indicated that Banks was... had the intent himself to participate in the robberies, and Banks limited that to being willing essentially to... to abet Farr in... in committing those robberies.

Justice Scalia: What... what page of the transcript that you... you cited page 37.

Is that in the joint appendix?

Ms Bunn: Yes, joint appendix.

That's the--

Justice Scalia: And that is the... that is the confession of... I'm sorry... that... that is the perjury... that's the only perjury that's supposedly--

Ms Bunn: --That's the... that's one instance that they... that... that's the only one dealing with money.

What police officers--

Justice Scalia: --Of course, this doesn't... this doesn't deal with whether he has... was a police informer.

It... it deals with whether the police officers promised you anything.

Ms Bunn: --Yes, yes, that's correct.

And that... the denial of that, of course, is... is not fault, because there's nothing in subsequent testimony to indicate that's... that's untrue.

Justice Ginsburg: Have you ever taken any money from some police officers?

No.

Ms Bunn: Yes.

That is a false statement.

However, it can... it's... it is far afield to interpret that as a denial of being a police informant.

Justice Scalia: Where... where... where is that?

Have you ever taken any money from police officers?

Ms Bunn: That is at joint appendix 37.

Justice Ginsburg: It's three lines down from the top.

Ms Bunn: In the middle of the questioning about... about Farr's prior drug use, defense counsel asks, and... and have you ever taken any money from some police officers?

There is further--

Justice Scalia: Thirty, thirty-seven, my God, reading... oh, I got it, I got it, okay.

Ms Bunn: --Further, he's asked, what police officers did you talk to about this?

I have talked to no one about this outside of when they called us down referring to the case--

Justice Scalia: Yeah.

We got it.

Ms Bunn: --which again is a false test... is a false statement, but does not specifically deny police informant status.

Justice Kennedy: Now, it does seem to me that the Cooksey report that the... I think it... the Cook... the--

Ms Bunn: Cook.

Justice Kennedy: --the witness Cook--

Ms Bunn: Yes, Charles Cook.

Justice Kennedy: --that the... that the report of his interviews with... with the police was... was very, very strong and helpful impeachment material.

Do you want to comment on... on the claim that relates to his testimony?

Ms Bunn: Certainly, Your Honor.

The lower courts did not consider that claim to be properly before the court because Banks failed to present it in his Federal petition, failed to present it in any amended and supplemental petition, and the... and there's nothing in this... in this record to indicate... that would support a finding of implied consent, or the trial by consent.

Justice Scalia: Well, you said, I mean, the... the Fifth Circuit didn't think that Federal Rule of Civil Procedure 15(b) applies in habeas, right?

Ms Bunn: That was a basis of its holding, yes.

That's correct, on debatability.

Justice Scalia: Is... is that absolutely clear?

Ms Bunn: No, Your Honor, it's not, and it--

Justice Scalia: Well, if it's not absolutely clear, then... then it seems to me they should have... they should have granted the... the certificate of appealability.

Ms Bunn: --The issue actually before the Fifth Circuit, the issue that it resolved, was whether... whether it was debatable... the district court... whether the district court abused its discretion in denying the 59(e) motion, because, in fact, the district court never considered 15(b) because it was never raised to the district court, that... that particular argument.

So--

Justice Scalia: Well, that wasn't the basis that the Fifth Circuit relied on.

I thought it relied on the basis that there's huge... there's just no question that 15(b) doesn't apply in habeas.

Ms Bunn: --That was part--

Justice Scalia: And there's a lot of question about that, it seems to me.

Ms Bunn: --Yes, Your Honor.

That was part of the holding.

The stated--

Justice Scalia: So maybe we should remand at... at least on the, you know, on the... on the Cook claim to have the... the Fifth Circuit decide whether a COA... decide the 15(b) question and then decide the Cook claim.

Ms Bunn: --I believe that would be an appropriate course on this issue, and in this... we are not... we are conceding the debatability of the general applicability of 15(b) in the habeas context.

What we do not find to be... what we do not believe to be debatable is the applicability in this case, that essentially there's no factual predicate for the application of 15(b) in this case, given that there's... there's simply nothing in the record to show that any party beside Bank himself, including the judge... the lower court judges, had any inkling that this issue was properly before them.

Chief Justice Rehnquist: But the Fifth Circuit passed on it, didn't it?

Didn't the Fifth Circuit pass on the question of whether 15(b) applied?

Ms Bunn: The Fifth Circuit, after... after noting that what the Fifth... that... that the district court's findings regarding the failure to raise the claim, the failure to raise it in an amended petition, did hold that it was... that it... that 15(b) did not apply in the habeas context.

Justice Ginsburg: There was one petition you took in your brief and you said that... that the state is not obliged to reveal the identify of an informer.

That's not correct, is it, if the informer is called as a witness?

Ms Bunn: No, Your Honor, that is our position that essentially a prosecutor's duty to disclose whatever information is triggered by the... the potential materiality of that information.

And particularly in a case like this, where the informant is not... was not paid for testimony, was not given any sort of break for his testimony, that there's no specific inference that can be drawn regarding an incentive for testifying favorably for the state, that that is not--

Justice Ginsburg: What authority... what authority do you have?

What case holds that when the Government puts an informant on the stand, it does not have to divulge that capacity?

Ms Bunn: --There... I know of no such authority for that particular proposition, but there's also nothing... there's also no opinion from this Court saying that a witness' informant status is per se material, which is essentially what... what that would--

Justice Ginsburg: Isn't there... isn't there a Texas rule of evidence that says, this is 508(c)(1) of the Texas rules, an informer's identity must be disclosed if he appears as a witness for the public entity?

Ms Bunn: --Well, Your Honor, again, even... even assuming a breach of a Federal rule of... state rule of evidence, that would not implicate the constitutional due process concerns at issue here.

And under Brady--

Justice Kennedy: Well... well, it certainly goes to whether or not the defendant is... is entitled to rely on what the prosecution's course of conduct is with reference to the informer.

Ms Bunn: --But again, there's nothing in this trial record to indicate that trial counsel specifically requested that information prior to going to trial, that he... that trial counsel himself didn't pursue--

Justice Kennedy: So you say at the outset of the trial the defense counsel has to say, now, will you comply with all of the rules that are in the Texas statutes?

Ms Bunn: --Well, there is an obligation from... on... upon defense counsel to pursue the remedies he's entitled to, and to... to specifically request the informant status of any witness, yes, there is an obligation in a case such as this.

And the fact that trial counsel did not do that, at least precludes a--

Justice Stevens: Why is there such an obligation if the state rules require it?

This... we supposed to say we want to be sure you've complied with all the state rules that govern prosecutions?

Ms Bunn: --But even assuming that... that violation, that is not... that does not support itself a finding of cause to the procedural default of Banks' failing to develop this claim for years even though knowing of its existence.

Justice Scalia: Ms. Bunn, do you have any argument that this might not have made any difference?

Ms Bunn: Yes, Your Honor, and again, several factors--

Justice Scalia: I... I suggest you might train your guns on that.

Unknown Speaker: [Laughter]

Ms Bunn: --Several factors play into that issue.

Again, just... just the pure impeachment value itself was... was weakened by the fact that there was no incentive.

But also the fact that Farr was heavily impeached already and that the informant status, weak as it was, was... was really merely cumulative.

Defense counsel had brought out, both on direct and then again on cross, his prior drug abuse, track marks, his denials during cross-examination, refuted by the defense witnesses, which included a denial that he acted as a police informant in... in another case for another jurisdiction.

Justice Kennedy: This isn't... this isn't what the prosecution told the jury, was it?

Ms Bunn: No, Your Honor.

This is... this is from defense counsel.

And third, even without Farr's testimony, the significant evidence of Banks' future dangerousness.

Banks admitted at punishment that he was willing to abet Farr's commission of future armed robberies by providing him with the weapon.

In fact, he was willing to drive.

Justice Souter: But he did... is... is it correct that but for Farr there would have been no testimony that Banks would participate in those robberies, and there would have been no testimony that Banks and his accomplices would use the gun to eliminate any trouble that might come up during that.

Is that correct?

Ms Bunn: Yes.

That is correct.

Justice Souter: That's pretty damning testimony, isn't it?

Ms Bunn: It is a piece of... of... of the state's puzzle, but it... but given what is left, not material.

And again, the fact that he was--

Justice Souter: It's not material because it would not have, in effect, raised a serious question about the... the integrity of the result or the fairness of the trial?

Ms Bunn: --Yes.

It would not have put the state's punishment case in such a different light as to undermine the verdict.

Justice O'Connor: Well, but don't... didn't you have a defendant here without a prior criminal record, and... and the state is trying to prove future dangerousness and that this is a really bad actor.

I would have thought that went rather to the heart of the sentencing question.

Ms Bunn: It was definitely favorable evidence to the state's future dangerousness case, but it was not all that was there.

Justice Breyer: Well, you have there as well Mr. Jefferson, who said that Banks whacked him or hit him hard and happened to omit that he himself, Mr. Jefferson, had attacked Mr. Banks' sister, which could be a reason why he had hit him.

Ms Bunn: Well, the... Vetrano Jefferson's testimony, though he did amend his version of the incident in post-conviction proceedings, he did not recant his testimony that Banks hit him across the face with a gun, but only that... and not that he had attacked Banks' wife, but that he had... that he had had a verbal altercation with her.

And there was no physical... no physical threat whatsoever that Banks responded to by hitting him across the face with a gun, and this happened a week prior to the murder.

And again, this testimony indicated that Banks was known to carry a weapon on a regular basis in the weeks before the murder.

And the murder itself, the unprovoked nature of it, the fact that Banks essentially lured a 16-year-old kid to a... an abandoned and secluded park near his home and shot him three times to steal his car.

And then... and then the fact that though... though Farr's testimony was... was crucial on the limited issue of Banks' willingness to participate himself in the armed robberies, it still... still the fact that Banks had it... and himself admitted... admitted at punishment that he was willing to abet Farr's commission of murder and had, in fact, been willing to drive what would have been a six-hour round trip to Dallas in the middle of the night to procure that weapon to... to aid those--

Justice Scalia: He didn't admit that... that he was willing to abet murder.

He just admitted he was willing to get the gun for robberies.

Ms Bunn: --Yes.

Justice Scalia: Did he say specifically, in order that somebody can be killed?

He didn't say--

Ms Bunn: He did... he did testify in... in response to cross-examination by the prosecutor that he was willing to provide what could potentially be a death weapon in a robbery case.

And in the light of this future dangerousness evidence that remains, as well as the incremental impeachment value of Farr's informant status within the context of the trial, former's informant... Farr's informant status wouldn't have put the state's case in such a different light as to undermine confidence in... in the jury's verdict.

Again, the state's duty to... to disclose in these cases is triggered by the materiality of the evidence, and in this case, Farr's import... Farr's informant status was not that kind of... of evidence.

It was not material evidence.

Unless there are no further questions.

Thank you.

Rebuttal of George H. Kendall

Chief Justice Rehnquist: --Thank you, Ms. Bunn.

Mr. Kendall, you have two minutes remaining.

Mr. Kendall: Thank you, Your Honor.

Very briefly, on the Charles Cook claim, I... Ms. Bunn has conceded that jurors of reason would find debatable the rule 15 issue.

We would ask that if the Court agrees with that, that we not go back just to the Fifth Circuit, that the case be sent back to the court in Texarkana, the district court, for fact-finding on the underlying claim.

There's not been any fact-finding whatsoever on that claim, and we think that would be, if the case is going back to the Fifth Circuit, that that would be entirely useful.

Thank you very much.

Chief Justice Rehnquist: Thank you, Mr. Kendall.

The case is submitted.

Unknown Speaker: The honorable court is now adjourned until tomorrow at 10 o'clock.

Attribution:

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Featured:

Swidler & Berlin v. United States - Oral Argument

Fri, 09 Jan 2009 14:50:02 +0000

Case:

Swidler & Berlin v. United States

Media File:

97-1192_19980608-argument.mp3

Related Transcript:

1997_97_1192_argument.xml

Transcript:

Argument of James Hamilton

Chief Justice Rehnquist: We'll hear argument now in Number 97-1192, Swidler & Berlin and James Hamilton v. the United States.

Mr. Hamilton.

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

On Sunday, July 11, 1993, at 10:00 a.m. in the morning, Vince Foster came to my home to consult me as a lawyer in the Travel Office matter, which was then the matter of intense public controversy.

We spoke alone for 2 hours, during which time I took three pages of notes, which are the subject of this litigation here today.

Before we began, Mr. Foster asked me if the conversation was privileged and, without hesitation, I said that it was.

It is not disputed that my notes would be privileged had Mr. Foster not taken his own life 9 days later in Fort Marcy Park, Virginia.

Mr. Chief Justice, I wish to make five major points this morning which I would like to summarize briefly at the outset.

First, any balancing test or ruling that leaves the existence of the attorney-client privilege after death in doubt would have a significant chilling effect on client candor, particularly as to those who expect to die soon, because people do care about their reputations and the fate of family and friends after death.

Secondly, Independent Counsel's central contention that only the perjurer would be chilled if the privilege does not survive but not the truthful client, or the client intending to invoke his Fifth Amendment privilege, is contrary to reason and experience and is unsupported by any decision of this Court.

Third, the conclusion that the privilege should survive in civil cases but not in criminal cases is illogical and unworkable and is supported by no case, no statute, or no commentator.

Fourth, all the pertinent State statutes recognize and virtually all of the nontestator cases hold that the privilege survives death, and the testator cases generally recognize that they apply an exception to the general rule that is intended to effectuate the testator's intent.

Unknown Speaker: It's an exception that pretty much swallows up the rule though, isn't it?

Mr. Hamilton: Well--

Unknown Speaker: I mean, like 95 percent of the cases involve the exception to the rule.

Mr. Hamilton: --Justice Scalia, that is correct, but they apply to a very specific situation, when there is a will contest, where there is a question about the testator's intent.

Unknown Speaker: It's very specific, but it also happens to be the situation that is most likely to arise with respect to privilege as to a decedent.

Mr. Hamilton: Justice Souter--

Unknown Speaker: It's precisely the situation most likely to arise.

Mr. Hamilton: --Justice Scalia, it is certainly the situation that has arisen most in the past.

I would suggest, though, that if the court's opinion below is upheld, the situation will arise much more in the criminal context.

Unknown Speaker: How many cases upholding the privilege uphold it, uphold it against either a demand by a prosecutor in the... in a criminal case, or a grand jury request?

Mr. Hamilton: There are only two cases that I know of.

One is the case here.

The other is the case in Massachusetts, the case... the case involved a John Doe, as it is styled.

Unknown Speaker: Counsel, I recognize that the time frame for your briefing was compressed, but I think there may be at least a misimpression left by your footnote 22 at page 21 and it bears, too, on Judge Tatel's discussion and it bears, too, on your opening remarks that the States say the privilege does not survive.

In California, at least, and that's one of the States you cite in the footnote, the privilege does expire when the estate's closed, and that's been so for 35 years, and I have not found anything in the literature indicating that in California this has caused, number 1, any lack... any diminishment in the number of lawyers, or in their effectiveness in representing their clients.

And so I think it's a very important distinction to say that the privilege can be exercised pending the administration of the estate, and then it closes, and if the other States, or some of them, are like California, that is, it seems to me, a very significant indication that experience has shown that this is not a problem.

Mr. Hamilton: Justice Kennedy, I believe that California is the only jurisdiction that has that specific reservation or provision--

Unknown Speaker: Have other States addressed the problem?

Can you say that the other States specifically do not?

Mr. Hamilton: --Our study of the State statutes find that they do not.

I would also point out that there are a number of States--

Unknown Speaker: That they do not address the point.

Mr. Hamilton: --That they... well, that they do not specifically address the point.

Unknown Speaker: Well, and if the administrator of the estate is designated as the one to exercise the privilege, then that means the lawyer alone would not be able to exercise it, so it seems to me you can infer that it expires.

Mr. Hamilton: Justice Kennedy, in a number of States, close to 20 States, the State provisions apply, or say that the lawyer also can assert the privilege, not just the personal representative but the lawyer also and, of course, that indicates that the survival of the privilege has nothing to do with the winding up of the estate.

Unknown Speaker: But if I'm correct about California, you would agree that that is relevant in considering whether or not experience shows that this causes a problem.

Mr. Hamilton: I will agree that it is a relevant factor.

I should point out that there is a California case, the Pena case that we cite in our brief, where this particular statute was applied in a criminal case, not just in a civil case relating to the administration of the estate.

Unknown Speaker: Was that post the 1965 California amendment, do you know?

Mr. Hamilton: I believe it was, but I'll have to check the date of the case--

Unknown Speaker: All right.

I'll check that.

Well, in any event, in your brief and in a number of the amicus briefs it's stated that what the Independent Counsel is requesting here is very sweeping and unprecedented, but we have at least California, we have Pennsylvania, we have the ALI, which speaks for lawyers, we have all of the commentators except Wigmore, I think, and we have, as Justice Scalia points out, the privilege that in any event is inapplicable when estates and property are concerned.

It's inapplicable if there's an ongoing scheme that the attorney is consulted for in order to continue.

It's inapplicable as to fees, inapplicable as to clients who dispute what the attorney told them and that the clients then are in dispute and, also, the privilege that we're talking about here is one only as to compelled testimony.

The attorney's ethical duty to remain silent continues.

And so it seems to me that this not the sweeping change that the amicus briefs and that you indicate.

Mr. Hamilton: --Well, there certainly are some exceptions that you have mentioned, but so far, with the exception of this case and the one case in Pennsylvania, there has been no case that has found that in a nontestamentary situation that the privilege expires when the client dies, and I would suggest, as I suggested to Justice Scalia, that if this Court upholds the lower court decision we will have many, many more cases that will raise this particular issue.

Unknown Speaker: It hasn't happened in California for 35 years.

Mr. Hamilton: But if the Supreme Court of the United States announces that the privilege expires upon death, I think that we will find many, many more cases raising this particular issue.

Unknown Speaker: May I ask if the California statute has been construed by the California supreme court?

Mr. Hamilton: By the California supreme court?

It was construed by a California court of appeals in 1984.

It was applied in a criminal case to bar the testimony of an attorney.

Unknown Speaker: It barred the testimony--

Mr. Hamilton: Yes.

Unknown Speaker: --in a case construing the statute?

Mr. Hamilton: Yes.

Unknown Speaker: Judge Williams did say further, in some States the privilege does not survive the winding up of an estate, and cited California for that proposition.

I know it isn't part of this record, Mr. Hamilton, but is the Foster estate wound up?

Mr. Hamilton: The Foster estate is not wound up.

Unknown Speaker: But the period of claims is 3 months, the period for filing claims against the estate is 3 months in Arkansas?

Mr. Hamilton: I believe that is correct.

As far as I know, no claims have been filed against the Estate, but it's not been finally wound up.

Unknown Speaker: But if this were California you would be able to assert the privilege, is that right?

I mean, assuming that you read the California words, Personal Representative, to mean someone who ceases to exist when the estate closes, which I don't know whether that's true or not, but assuming that that is true, because here the estate isn't closed, it would be proper to assert the privilege, even under California's--

Mr. Hamilton: I... if the question is whether the attorney is the Personal Representative, I don't believe the statutes have been interpreted that way, Justice Breyer.

Unknown Speaker: --No, it says in California that if there is... you can't claim the privilege if there is no holder of the privilege in existence, and the holder of the privilege is defined as a Personal Representative of the client, so if you were to construe that as saying the privilege dies after the estate's closed, still you'd be able to assert it here because the estate hasn't closed.

Mr. Hamilton: That's correct.

Unknown Speaker: Mr. Hamilton--

--Well, unless only the holder can assert it.

Is it clear under California law that someone other than the holder of the privilege can assert the privilege?

Mr. Hamilton: Well, under California law the Personal Representative is the one who can assert the privilege.

Unknown Speaker: And no one else.

Mr. Hamilton: I don't believe anyone else--

Unknown Speaker: No, no, that's--

--So you could not assert it under California law, then.

Mr. Hamilton: --The attorney is not... under California law the attorney is not given the right to assert the privilege.

Unknown Speaker: I'm not... are you sure?

I have this now in front of me.

I'm reading it quickly, but it says the lawyer who received or made the communication subject to the privilege shall claim the privilege, in... do you know that... that's section 955.

It seems to give a... I don't know how much you've looked at the--

Mr. Hamilton: At the California law.

Unknown Speaker: --Yes, so I'm not certain that the lawyer couldn't assert it.

Mr. Hamilton: Well, certainly... certainly, Justice Breyer, in many States the lawyer can assert the privilege.

Unknown Speaker: Mr. Hamilton, you take the position that there can be no compelled testimony by someone in your circumstances even if the information would be essential to show that a third person was not guilty of a crime, such as in the Macumber case in Arizona.

You say even in those circumstances there's no way to get at the information.

Is that right?

Mr. Hamilton: Justice O'Connor, what we said was this, that in a situation where a defendant's rights are at issue and where denying a defendant access to certain information might unconstitutionally arbitrarily and disproportionately infringe upon his or her right to weigh the evidence, perhaps the Court in that situation--

Unknown Speaker: Well, we don't even know that unless the material can be reviewed, do we?

Mr. Hamilton: --Well, that is correct.

That is correct.

You don't know that.

Unknown Speaker: And you don't oppose reviewing it if a defendant in some other case needs the information, or says he needs it?

Mr. Hamilton: If there was some demonstration that evidence in the hands of an attorney would be crucial to a defendant's right in this situation I would not oppose in camera review.

Unknown Speaker: So you make an exception for criminal cases.

Mr. Hamilton: I would make an--

Unknown Speaker: There goes your absolute rule that you can't draw a distinction between civil and criminal.

You're willing to make a distinction between criminal to that extent.

Mr. Hamilton: --Justice Scalia, in the case of a situation where a defendant's rights may be at issue, then I think that--

Unknown Speaker: But that's still a criminal case.

Mr. Hamilton: --That is still... that is still a criminal case.

Unknown Speaker: Let's put it in the context, why just the defendant's rights?

I mean, let's put it in the context of your client and, as you know, there are conspiracy theorists who believe that his death was not a suicide but in fact was murder.

You acknowledge that if his evidence was necessary to prove that it was not his wife who committed the murder, that that indeed might be able to come in, but what if his evidence was necessary to prove that somebody else committed the murder?

Then you would not let it come in for that purpose?

Mr. Hamilton: In that circum--

Unknown Speaker: Even if it was necessary to show who killed the--

Mr. Hamilton: --In that circumstance I would not, and let me tell the Court why.

I--

Unknown Speaker: --It seems to me quite disproportionate.

I mean, courts like to get to the truth, and it seems to me that in that situation I can't see what interest is being preserved.

Mr. Hamilton: --Justice Scalia, courts do like to get to the truth, but this Court has said that a privilege like the attorney-client privilege is of transcendent importance.

It is important so clients will go to their lawyers and talk to their lawyers with candor.

That's central for the lawyer, for the client, but also for the administration of justice.

Now, if we have a rule that allows the privilege to be broken whenever a prosecutor or a grand jury feels that he or it needs the information to pursue who committed a crime, then the privilege will be of little value.

Obviously, here, we have a balancing, if you will, of interest, the interest in having lawyers speak to their clients with candor and the interest of getting to the truth, but all of the privileges that we have recognize that to some degree, to some degree they will inhibit the search for information.

Unknown Speaker: But virtually all the other privileges we have have somebody else around who can say, well, in this circumstance I'm going to let it go.

The attorney-client privilege, when the client is still alive he can say, okay, you know, in the interests of justice this ought to come out.

But what's extraordinary here is, you're saying there is nobody... no matter how severe the public interest is on the other side, there is nobody who can say, enough is enough, in these circumstances the information ought to come out.

Even if you yourself thought that the information was really crucial to you, you would have to say, nobody can let it out.

That's extraordinary.

Mr. Hamilton: Justice Scalia, in this particular situation I do believe the Personal Representative of Mr. Foster's estate could waive the privilege.

Unknown Speaker: Is the doctor-patient privilege different in that respect, on death?

Mr. Hamilton: In terms of... in terms of who can waive it?

Unknown Speaker: Yes.

Mr. Hamilton: I would think... Justice Ginsburg, we have not briefed that particular issue but I would think that in that circumstance also the Personal Representative of the estate could waive.

Unknown Speaker: But you--

--Is there authority for either of those propositions, that the Personal Representative of the estate could waive either the physician-patient privilege or the lawyer-client privilege, or is this just kind of speculation on your part?

Mr. Hamilton: There certainly is authority for the proposition that the Personal Executive can waive the attorney-client privilege.

Unknown Speaker: In California by virtue of statute.

Mr. Hamilton: And in other--

Unknown Speaker: And in a few other States.

Mr. Hamilton: --And in other--

Unknown Speaker: By virtute of statute.

Mr. Hamilton: --And in other jurisdictions, too.

Unknown Speaker: By virtue of statute.

Mr. Hamilton: Yes.

Yes.

Unknown Speaker: Wouldn't you suppose, though, that the extent of the waiver would be limited by the extent of the Personal Representative's authority, which I guess I have always assumed is essentially authority over property, so that if we're concerned about reputational protection absent a statute, I would suppose the Personal Representative could not waive it.

Mr. Hamilton: Well, the cases are not very specific on that, but there is at least some implication that the Personal Representative could waive in other situations.

For example, let me speak about the Macumber case, because I think that is an example of how the courts, even in affirming the privilege, have found a way to do justice.

In that case, on remand the Personal Representative of the deceased's estate did waive the privilege, and so the attorney's testimony was available to the court.

And it so happened in that situation that the court decided that the testimony was untrustworthy for a number of reasons, and it was not admitted into evidence, but there--

Unknown Speaker: But that came at the initiative of the attorneys, did it not?

I mean, if they had... they had this confidence that had been made to them, but the defendant never would have found out about it had it not been for the attorneys for the other client.

Mr. Hamilton: --Well, in that situation the attorneys did seek guidance from the bar to see what they could do, so I think it is fair to say that the attorneys had something to do with--

Unknown Speaker: Your typical defendant in a criminal case is simply... in a lot of... they're simply not going to know of the existence of this evidence, so... if the privilege obtains, and that presumably is... if the privilege does obtain, that's the way it ought to be.

Mr. Hamilton: --Well, they may or they may not.

I mean, we don't know what a deceased person has told some third party, so it's hard to speculate as to what someone might know, Mr. Chief Justice.

Unknown Speaker: Mr. Hamilton, you said you had five points, and you got out four, so we'd like to hear what the fifth one was.

Mr. Hamilton: The fifth one was this, Justice Ginsburg.

As to work product, the court of appeals' notion that even seasoned attorneys do not exercise any professional judgment in taking notes during an initial client interview is contrary to reason and experience, it's without case support, and it is contrary to the facts of this particular case.

I would like to go back to my point that persons will not talk with a lawyer with candor if they know that, when they die, what they say can be discovered by a prosecutor.

Over and over and over again this Court has said that the purpose of the privilege is to encourage clients to talk to their lawyers in a candid fashion.

Unknown Speaker: I think this is very important and I want to pursue it with you a little, but as you begin, I'm thinking back to the errors on a case, the Macumber case.

You indicate that one of the situations where the confidence might be disclosable is when the client confesses a crime and then someone else is charged with the crime after the death.

So that's the instance where the confidentiality is most important in... to encouraging the disclosure, and yet we have... you admitted the possibility, in any event, that it would be discoverable.

Mr. Hamilton: In the extreme situation where a defendant's rights would be unconstitutionally, arbitrarily and disproportionately infringed upon, a court might find an exception.

Unknown Speaker: And the paradigm example of that is when the client confesses the crime to the attorney.

Mr. Hamilton: That is the paradigm example but, Justice Kennedy, that is not this case.

Here, we have a prosecutor and a grand jury seeking, not specific information about... that's exonerating, but seeking all relevant information.

Unknown Speaker: Agreed.

Mr. Hamilton: And not to exonerate anyone, but to see whether prosecution is a possibility.

As I was saying, the candor rationale has been announced by this Court in Upjohn, Jaffee, Fisher, Zolin, Trammel, and other cases.

Unknown Speaker: What do you... what's the classic instance in which the attorney really should know something in order to help the client, but that the attorney would not hear this?

The client would be silent if the Independent Counsel's position prevailed.

What's the classic example, do you think?

Mr. Hamilton: Well, I think--

Unknown Speaker: It can't be confession of the crime, can't be property.

Mr. Hamilton: --I think you can think of many hypotheticals where a client might be disinclined to reveal something to an attorney if the client knew that after death it might be revealed to the prosecutor.

I mean, in this situation an attorney would have to say, well, I would like for you to tell me the facts, but don't tell me what's really bad, what's really bad, because if you die I may have to reveal this to a prosecutor.

So I think you can come up with many hypotheticals where a client might not want to reveal some facts to the attorney.

Let me just give you a specific one that I used in the court of appeals.

What if we have a father who is dying, and he wants to consult a lawyer about the criminal drug problems of his child.

Now, in this circumstance the dying father will know that as soon as he passes away some prosecutor might be able to get to the information that he has imparted to his lawyer and, in that circumstance, I think that candor would be chilled, because the father is not going to want to say things--

Unknown Speaker: Why does the father have to do that?

Can't he just say, I want a spendthrift trust for my son, my son has got some problems.

That's all he needs to say.

Mr. Hamilton: --Well, he may not--

Unknown Speaker: Because you're presuming that there's something that's very necessary for the attorney to know that the client won't be able to tell, and I don't see that in that hypothetical.

Mr. Hamilton: --Justice Kennedy, the father may not come to the lawyer about some estate problem, may not come to the lawyer to set up a trust.

The father may come to the lawyer to consult about the criminal problems of his son, because he is concerned about him and he needs advice as to how these matters should be handled.

Unknown Speaker: Certainly many lawyers are kind of family confidantes, as well as just advisors on purely legal matters, I suspect.

Mr. Hamilton: Well, that, of course, is true.

The privilege applies when legal advice is sought.

Unknown Speaker: But a person may... might go to a lawyer and... with respect to your... the drug, criminal drug problems of the son and say, you know, I really don't know what to do about it.

He wouldn't necessarily have in mind a particular testamentary disposition.

He probably wants the lawyer to tell him what he might do about it.

Mr. Hamilton: Well, he may seek the lawyer's advice about this criminal issue, that is certainly right.

People who are near death do not always consult lawyers about estate issues.

Unknown Speaker: If I consult you about somebody else's criminal problem, is that privileged?

Mr. Hamilton: If you... if you consult me and you're asking my advice particularly as to a matter that may affect you in some way, yes, it is privileged.

Unknown Speaker: Well, I'm asking, you know, can my son be prosecuted.

I mean, there's nothing--

Mr. Hamilton: If--

Unknown Speaker: --Or, can my brother be prosecuted.

Mr. Hamilton: --If--

Unknown Speaker: Can my third cousin be prosecuted?

Would that be--

--What if he's asking, should I make an insurance claim on behalf of my son, who has this problem?

He might not necessarily be asking about whether the man committed a crime, but whether it would be wise to make a claim knowing these background facts.

There are a lot of different things, other than crimes, that lawyers consult... are consulted about.

Mr. Hamilton: --Well, that is certainly true.

That is certainly true, and if I am consulted by a person who wants my legal advice, even though it involves issues concerning other people, that type of conversation, Justice Stevens, is privileged.

Now, if the situation is only, will you help me get a lawyer for my son, that would not necessarily be... I think that would not be privileged, but certainly you can consult about the legal issues of others.

You can consult with an attorney.

You can ask the attorney to advise you, and that certainly has happened in my own practice.

Mr. Chief Justice, I would like to reserve some time for rebuttal.

Unknown Speaker: Very well, Mr. Hamilton.

Mr. Kavanaugh, we'll hear from you.

Argument of Brett M. Kavanaugh

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

In light of what petitioner has stated, let me state at the outset there can be no mistake about the pernicious consequences of petitioner's theory, taken to its logical extreme.

By permanently walling off a critical category of evidence from the criminal process, petitioners' theory will lead to extreme injustice.

Not our words, the words of Mueller & Kirkpatrick.

That will mean that innocent people--

Unknown Speaker: Who are Mueller & Kirkpatrick?

Mr. Kavanaugh: --They are two commentators on the law of evidence.

Unknown Speaker: Oh.

Mr. Kavanaugh: That will mean that--

[Laughter]

Unknown Speaker: They're not quite as well known as Professor Wigmore and the like.

Mr. Kavanaugh: That will mean that innocent people will be wrongly convicted and guilty people will be wrongly exonerated, each of which implicates a substantial societal interest.

The case of State v. Macumber is exemplary of that point.

Unknown Speaker: Mr. Kavanaugh, we've been just told by Mr. Hamilton that he wouldn't take it to that extreme, where it's a question of a defendant who was convicted... who's charged with a crime, and the information was that some other person had done that and the lawyer knew that.

He did not press his case to that extreme, so I think it would be useful if you curtailed your argument to the one that Mr. Hamilton is making on behalf of the privilege.

Mr. Kavanaugh: If that's true that he's not pressing it to the logical extreme, that undercuts entirely his chilling effect argument, because the person consulting his attorney before death will not have the expectation of confidentiality on which their entire theory is premised.

Unknown Speaker: No, you're only leaving out the case where he's confessing to a crime, and there are a lot of consultations between lawyers and clients where the client does not confess to a crime.

Mr. Kavanaugh: That's right, Justice Stevens, but the most likely issue about which a client might consult an attorney in which the communications might be sought after death are testamentary cases, and in that circumstance the law has long established... over a century in this Court... that the privilege does not survive death, notwithstanding, notwithstanding the embarrassment and the harm to reputation that can ensue from disclosure--

Unknown Speaker: Yes, but the assumption... no, please.

Why do you accept the qualification that your argument only goes to when there's an admission to a crime?

Wouldn't your argument also go to the situation where there's an admission that somebody else did the crime?

Mr. Kavanaugh: --Well, in that--

Unknown Speaker: My son did the crime.

My third cousin did the crime.

Wouldn't that also open up, if you accept the qualification, the consultation to intrusion?

Mr. Kavanaugh: --Yes, Justice Scalia.

Unknown Speaker: Well, my point is, there are a of consultations where nobody committed a crime.

Mr. Kavanaugh: That's right.

Unknown Speaker: You can't assume all consultations between client and lawyer involve criminal behavior.

Generally, we presume people are innocent unless somebody proves otherwise.

Mr. Kavanaugh: But most likely consultation, again, will be in the testamentary context, and there the law has long established that the privilege--

Unknown Speaker: How do we know that's the most likely consultation between lawyer and client?

Clients talk to lawyers about a host of problems, not just testamentary dispositions.

Mr. Kavanaugh: --The most likely situation in which the communications would be sought after death, experience tells us, are testamentary cases.

In fact, it is--

Unknown Speaker: And maybe one reason for that is, it has generally been assumed, as the literature is unanimous on it, that these conversations are privileged.

Mr. Kavanaugh: --We don't know--

Unknown Speaker: That is the background assumption, on the cases you describe all say they are exceptions from the general rule.

Mr. Kavanaugh: --Exceptions from the general rule of attorney-client privilege.

It's not exceptions from a general rule about what happens to the privilege after death, the most prevalent rule after death.

The only thing we know that is settled with respect to posthumous privilege is that the privilege does not apply in the vast majority of cases in which it's raised, namely, testamentary cases.

Unknown Speaker: No, but does that prove very much for your side, because the theory of the testamentary exception is that the client would, in fact, want the lawyer to talk for the purpose of implementing whatever the client's intent was.

The assumption seems to be that there's a point to which the client wants to go.

That was the object of the will or the trust, or what-not, and so in fact the theory behind that exception is really that the client authorizes it.

You're arguing for the converse case, in which we assume the client would not, so what does that prove?

Mr. Kavanaugh: Two points in response, Justice Souter.

First, as Judge Williams and Judge Wald stated in the court of appeals opinion, that rationale for the testamentary exception simply does not work.

We don't know whether, in intending for a particular property distribution, the testator intended that his or her attorney-client communications also be disclosed to fulfill that property intent, so--

Unknown Speaker: Well, we may not in the sense that in this case there is in fact a statement that can be attributed to the client saying, I want you to talk or I don't want you to talk, but it seems to me there is a reasonable argument that the client wants the object of his testamentary intent to be served and if in order to serve it, it is necessary to disclose something, it's reasonable to suppose the client would want the disclosure.

I think that's as far as the theory goes.

Mr. Kavanaugh: --Well, it may be reasonable to suppose but most believe that that's the one situation above all others where clients would be chilled to nondisclosure by the possibility of posthumous disclosure of the attorney-client communications, and if we're going to presume intent in that context, why do we not also presume intent in this context: presume that a person near death would want to fulfill what this Court has called his basic obligation as a citizen to provide information to the grand jury?

And even on the facts of this case--

Unknown Speaker: Because there are a great many people who know they have that obligation, or at least that there is a general theory that they have that obligation, but they do not, in fact, want to fulfill it.

I mean, we're being realistic, I think.

Mr. Kavanaugh: --Well, it's again what we should presume someone's intent to be, and if we presume it in the testamentary context, even though it's going to be embarrassing information about one's family members, it could cause great harm--

Unknown Speaker: Well, if I may interrupt you, I think it's the difference between a presumption of fact and a presumption of law.

I mean, in the testamentary case, we figure in fact the fellow wants to accomplish something.

If we're going to presume it in this case, I think it probably would have to be a presumption of law quite divorced from any specific actual intent on the part of the client because we know that if embarrassment would in fact result to the client's reputation, to living individuals, probably the client would not want that disclosed.

Mr. Kavanaugh: --Well, again, I guess we just have a disagreement about what people would want done in the testamentary context as well, but--

Unknown Speaker: May I ask you a different question, which hasn't specifically come up, I think.

Who has the burden of persuasion here?

Do you have it?

Mr. Kavanaugh: --This Court has stated repeatedly that privileges obstruct the search for truth and thus must be strictly construed, so to the extent there's a burden with respect to a legal issue, we would suppose that the burden would be on petitioners to establish what they want here, which is--

Unknown Speaker: What if we... if we assume... and I realize that you dispute this, but if we assume, in fact, the understanding of the profession has been, at least for a very long time, that there is a privilege as broad as Mr. Hamilton argues for, so that we start with a privilege which has been established, then I suppose the burden would be upon you, in fact, to justify a curtailment.

Mr. Kavanaugh: --Well, in the... the testamentary exception did not exist forever, either.

That was an exception that was developed over time, and this Court recognized it in Glover v. Patten.

With respect to exceptions to an absolute privilege, we stili think, when the societal interests are balanced, the burden is on the privilege proponent to establish that the need for confidentiality outweighs the need for relevant information.

Unknown Speaker: Mr. Kavanaugh, you're confining your argument to the... to a criminal case?

Mr. Kavanaugh: That's correct, Mr. Chief Justice.

Unknown Speaker: Now, when you say a criminal case, do you mean a case where the statement made by the client to the attorney has perhaps some earmarks of a declaration against penal interest, or is it just any statement made by the client towards the attorney which might be admissible or useful to a criminal investigation?

Mr. Kavanaugh: It's the latter, Mr. Chief Justice.

Unknown Speaker: In that context your brief, I think at about page 8, indicates, well, there's no danger to the client of criminal liability once... after his death, but there is substantial danger of civil liability.

If X confesses to the attorney that he's engaged in a pattern of fraud that's criminal, and that comes out, that would subject his estate to a civil liability by the injured persons.

Mr. Kavanaugh: The rule we seek in this case leaves open one of two possibilities in a civil case in which the estate is a party.

Either in that future case the court or the Federal courts could end the privilege at death, or they could end it when the estate is wound up.

In your earlier questions, Justice Kennedy, about the estate being wound up, that rule shows that the rationale behind winding it up on the estate, ending the privilege when the estate winds up, means that interests and reputation, and interests and protecting others, are not what justifies the privilege after death.

It is simply to protect the financial interests of the estate and, thus, those codes which have been in the proposed Federal rule and the Model Code of Evidence, the rationale for those codes, limitation and duration and scope, support our position when that rationale is translated to the criminal--

Unknown Speaker: I think that perhaps understates the... one reason which I think is generally agreed to, that the client must feel free to tell the lawyer, you know, the truth, the whole truth, et cetera, so that the lawyer will be able to give him good legal advice, and it seems to me when you narrow the rationale the way you do, perhaps you overlook some of that.

Mr. Kavanaugh: --Well, we think the attorney-client privilege, as it is developed over time, represents not a single policy.

Petitioners cherry-pick out the one policy of encouraging client candor, but it represents a balancing, a mix of considerations and policies that have led to different rules in different contexts, such as the crime-fraud exception, such as the exception for testamentary cases.

Unknown Speaker: Mr.--

--Well, in the case of the drug-user son, the hypothetical we were discussing, it seems to me there is some merit to that argument.

Attorneys, especially in practices where they advise families, often have this kind of question.

What shall I do with X in my family who's an alcoholic, or a drug user?

Attorneys engage in not just retrospective analysis of what happened.

They try to give guidance for the future, and it seems to me that the profession might be a little poorer for the restriction you ask us to adopt.

Mr. Kavanaugh: The American Law Institute, which does represent the interest of judges and lawyers, and has been followed by this Court in many different bodies of law, has concluded, in agreement with our position, that the privilege should end after death.

In the hypothetical--

Unknown Speaker: Well, Mr. Kavanaugh, that position is not really supported by much of any case law that I can find.

I mean, that's a position they take in the explanation, but it does not appear to have a lot of support.

And while I have you interrupted, how do you characterize the holding of the majority of the panel below that we're reviewing?

They seem to adopt some sort of balancing test as applied to a specific case to see whether testimony should be... whether the privilege should be breached and the testimony compelled.

Mr. Kavanaugh: --The--

Unknown Speaker: Is that how you understand the holding?

Mr. Kavanaugh: --The court of appeals did require that the information be, quote, of relative importance, a standard that they said was plainly met in this case.

Unknown Speaker: But it seemed to be some kind of a balancing test applied case by case.

Do you support that approach?

Is that the rule you suggest that we should apply?

Mr. Kavanaugh: We support that approach, but we also pointed out in our brief that it may be somewhat inconsistent with what this Court has done in cases such as Branzburg, where--

Unknown Speaker: Yes, I think it is.

This Court has rejected a sort of balancing approach.

Mr. Kavanaugh: --In many cases it has, and that's why we pointed out in our brief that in cases such as Branzburg and University of Pennsylvania within the context of grand jury proceedings the need has already been established.

There's no necessity for further balancing once you're within that narrow, limited context.

Unknown Speaker: Mr.--

--Well, it sounds like you're not arguing for affirmance of the test articulated by the panel below, but you didn't cross-petition.

Mr. Kavanaugh: We're arguing for affirmance of the judgment and we pointed out an alternative legal standard in support of the judgment below.

We are not seeking to enlarge the judgment in any way, Justice O'Connor.

Unknown Speaker: What was the judgment below?

Was it that the district court consider the matter and come to a determination, or was it that the material had to be provided?

Mr. Kavanaugh: It reversed and remanded without specific directions as to what was going to happen on remand.

Presumably... we don't know whether all the notes even concern the Travel Office matter, since we haven't seen the notes, and there may be parts of it that aren't even relevant to our investigation.

Unknown Speaker: Well, did it tell the district court to apply the weighing test that it enunciated?

Mr. Kavanaugh: It simply said, reversed and remanded for further proceedings consistent with this opinion, so--

Unknown Speaker: Well, wouldn't one think that further proceedings consistent with this opinion would be to apply the weighing test that the court announced?

Mr. Kavanaugh: --We don't think so, because the court said the standard was plainly met here, and it was talking about--

Unknown Speaker: Where... can you point out the portion of the opinion, because that's blurry in my mind.

I don't remember the court of appeals having resolved the issue for the district court.

Mr. Kavanaugh: --On page 11a of the petition appendix, where the proponent has offered facts supporting a--

Unknown Speaker: Whereabouts on page 11a are you reading from?

Mr. Kavanaugh: --The beginning of the first full paragraph, where the proponent has offered facts supporting a good faith reasonable belief that the materials may qualify for the exception, a standard plainly met here by the Independent Counsel, and the preceding paragraph--

Unknown Speaker: But what does it say after that?

It says, the district court should, in its sound discretion, examine the communications to see whether they in fact do.

That's hardly instructing the district court, go ahead and order the disclosure of this material.

It says, examine the communications.

Mr. Kavanaugh: --Well, we think the communications have to be examined to determine whether they're relevant to our investigation.

There may be portions of the notes, again, that have nothing to do with the Travel Office and may be extraneous materials, and that's why the district court in the first instance has to look at it.

Unknown Speaker: And then the court goes on to say, to the extent that the court finds an interest in confidentiality... the district court... it can take steps to limit access, et cetera, so it's hardly an instruction to the district court to go ahead and order the divulgence of these notes.

May I ask you a question in that line.

Could you, if Foster were alive, say... subpoena him as a witness before the grand jury and say, tell us what you told your lawyer?

Mr. Kavanaugh: No.

We could say, tell us everything you know about the Travel Office matter, which is the same information that he told... presumably told Mr. Hamilton.

All we seek in this case... the grand jury seeks no windfall.

It seeks to be... the same information to which it would have been entitled were Mr. Foster alive.

Unknown Speaker: But you would not have been entitled to these notes if the client were alive, so it's his death that establishes your qualification for something you could not have gotten.

I thought your main argument was, this is a backup for the client, we could have had the client were he only alive, but now what you're really urging is something you never could have gotten when the client was alive.

You could have gotten the client's testimony.

Do you think you could ask the lawyer, tell us what Foster told you, instead of looking for his notes?

Mr. Kavanaugh: If he were alive?

Unknown Speaker: No.

Foster--

Mr. Kavanaugh: In the current situation?

Unknown Speaker: --Yes.

You're saying--

Mr. Kavanaugh: Yes.

Unknown Speaker: --you have a right to his notes.

Do you also have a right to the lawyer's testimony?

Mr. Kavanaugh: Absolutely, Justice Ginsburg.

Unknown Speaker: And is it up to you interchangeably, or do you have to do one before the other?

Mr. Kavanaugh: The orderly process of a grand jury, you usually seek someone's documents and then question them about those documents.

Unknown Speaker: How--

--But even on the work product side of it, if you have access to the lawyer's testimony, why do you need the notes?

Mr. Kavanaugh: Because the notes may help to show what was discussed in the conversations between Mr. Foster and Mr. Hamilton and refresh Mr. Hamilton's recollection.

Unknown Speaker: Well, he can use them to refresh his recollection.

But I thought, now turning to the work product side of it, that a statement that's not the witness' verbatim statement, that is the most closely guarded kind of work product, a lawyer's notes as distinguished from his verbatim transcript of the witness' testimony.

Mr. Kavanaugh: The settled case law in the lower courts, Justice Ginsburg, is in situations where the witness who communicated with the lawyer is unavailable, then those portions of the notes that at least reflect the factual statements of the witness and surrounding information must be disclosed, even when the client, the witness is still alive.

Unknown Speaker: But you have to make a substantial showing under the rule, don't you, and for those perhaps under Upjohn you have to make even more of a showing.

What showing did you make in this case as to the work product?

Mr. Kavanaugh: The showing that has to be made, Mr. Chief Justice, is a showing that the witness in question is no longer available for questioning, as the Second and Third Circuit stated, and that is what the showing is, and that's been a traditional showing in the lower courts and is approved in the Restatement, that suggest that the notes must be produced in that circumstance.

Unknown Speaker: That itself is a substantial showing that the witness is no longer available?

Mr. Kavanaugh: That's correct, Mr. Chief Justice, and those opinions have... and the Restatement follow what Upjohn stated on that point.

In Upjohn, of course, and this goes to the attorney-client privilege point that Justice Ginsburg raised, a fundamental pillar on which the attorney-client privilege rests, a pillar that this Court emphasized in Upjohn, is that the client can be questioned directly about the underlying events, and that's simply not true after death, and that's what fundamentally alters the privilege analysis in this case.

The client--

Unknown Speaker: Well, you can't question a person after his death... sorry.

You can't question the person before his death about a matter that's privileged, can you?

Mr. Kavanaugh: --No, but the same information--

Unknown Speaker: Well, how do you know that he didn't talk to the lawyer about privileged matters, matters that were the subject of some other privilege?

How do you know that?

You haven't seen the notes.

Mr. Kavanaugh: --We don't know what's in the notes, correct.

Unknown Speaker: All right.

So is it your rule that what's supposed to happen is that after a person dies the judge is supposed to go through the notes that his lawyer has to see if they're subject to some other privilege or not, and some materials would survive the death and others wouldn't survive the death?

Is that basically it?

Mr. Kavanaugh: Well--

Unknown Speaker: I mean, some conversations with lawyers would survive death as privileged.

Mr. Kavanaugh: --Ordinarily--

Unknown Speaker: Others would not.

Mr. Kavanaugh: --Ordinarily when you disclose information to your attorney, if the attorney-client privilege doesn't apply... for example, in a crime-fraud situation you couldn't come in and say, oh, some other privilege applies.

Unknown Speaker: Why not?

You might have told the attorney what you told your wife, or what your wife told you, or what you told your psychiatrist, or what the psychiatrist told you, or any other dozens of privileges that could apply.

So if you're saying, I guess, that those still would apply, even though they'd normally be waived when you talk to somebody about them, you're asking the judge to start picking and choosing among them, is there any common law support, or do you find in the last 30 years, even in California, any instance... I guess you did a handful, six or something.

But I mean, you looked at hundreds of cases.

Did you find instances where either in civil or criminal proceedings, in California or anywhere else, somebody did breach this privilege, other than the testamentary context?

Mr. Kavanaugh: Well, the case in Pennsylvania--

Unknown Speaker: I'm not saying, necessarily, cases.

I mean, is it the practice in California that prosecutors or civil litigants routinely obtain material on discovery from a lawyer of a person who's died after the closing of the estate?

Mr. Kavanaugh: --Well, again, there is a distinction between civil cases in which the estate is a party and other civil cases.

Your question goes to the unusual nature of the facts presented in this proceeding and in cases such as the Charles Stewart case or the Macumber case.

Unknown Speaker: No, I'm asking you basically... you've done a lot of excellent research, and I'm saying in the course of that research, either through conversations or otherwise, have you found it to be a practice in California, which has had this evidence code for 30 years, have you found that it is the practice, have you found an instance, either in cases or outside of cases, where lawyers routinely or otherwise, in civil or criminal proceedings other than the testamentary context, breached the lawyer-client privilege?

Mr. Kavanaugh: It's simply silent on that point, Justice Breyer.

We have not found instances.

A lot of this will come up, of course, in the criminal context in the context of secret grand jury proceedings in a--

Unknown Speaker: If not it perhaps shows that criminal prosecutions are very responsible, that criminal prosecutors are very responsible and don't abuse the privilege that California apparently gives them.

Mr. Kavanaugh: --I think it might show that the kind of situation... that's true, and also shows that the kind of situation we have here, as the facts and the statement of facts indicate, are rarely going to arise.

Unknown Speaker: Another thing it shows is the woeful dearth of any empirical research in the legal profession, because the kind of questions that Justice Breyer and some of the rest of us asked, you know, if lawyers were polled as to how they treated client confidences, and people asked prosecutors, we would have a much better idea of how to decide this case than, you know, AB writes a law review article and says, here's what I think.

Mr. Kavanaugh: I couldn't agree more, Mr. Chief Justice, and the empirical question, even as to the attorney-client privilege for living clients outside the context where the client asserts the Fifth Amendment, there is very little empirical support behind--

Unknown Speaker: Well, of course, this is against a background in which the attorney has the unceasing ethical obligation not to discuss the confidential communications.

We're talking only about compelled testimony.

Mr. Kavanaugh: --That's exactly right, and that's important, Justice--

Unknown Speaker: But even there, I'm a little concerned.

Suppose that there is a multidefendant crime, and there are five lawyers representing five different defendants.

Defendant number 1 dies.

Under your view I guess the prosecution could compel the attorney for the now-deceased defendant to disclose all of the information, which it seems to me might among other things put the attorney for the deceased clients in great danger.

[Laughter]

Mr. Kavanaugh: --That's right, and actually, Justice Kennedy, your question is a problem in the law notwithstanding dying clients.

Unknown Speaker: Why is it a problem?

I mean, death has sort of given one of the five defendants absolute immunity--

Mr. Kavanaugh: That was my--

Unknown Speaker: --which the State could have given anyway, right?

Mr. Kavanaugh: --That's absolutely right.

Unknown Speaker: It was given in a more extreme fashion, so to speak.

Mr. Kavanaugh: That's right, Justice Scalia, and, in fact, what I was going to say is, the law has a--

Unknown Speaker: But Mr. Kavanaugh, in that case it's the defendant who would have the worry, not the defendant's lawyer.

Mr. Kavanaugh: --Well, the law has experience with the situation Justice Kennedy raises, not with someone dying but someone pleading or being granted immunity, and there are complications.

Unknown Speaker: Right, and he may have to worry about it, but his lawyer doesn't have to worry about it.

Mr. Kavanaugh: Well, I think Justice Kennedy was positing a situation in an organized crime type of case where the lawyer would be in danger if the client--

Unknown Speaker: Because the lawyer is the source--

--Well, I am.

--of the information.

I am.

What's the answer to it?

Mr. Kavanaugh: --Well, the answer--

Unknown Speaker: I--

Mr. Kavanaugh: --in that case is that the attorney must disclose the communications and there can be conflict problems if there was a joint defense arrangement whereby everyone was meeting in the same room.

Unknown Speaker: --Mr. Kavanaugh, you say that the attorney must disclose the communications.

This goes to your basic theory.

I'd just like to know, are you urging us to decide what the law now is, or are you asking us to change the law?

Mr. Kavanaugh: We think the law is... in Federal courts there is no law, and so I guess it's both.

We don't know whether--

Unknown Speaker: You want us both to say what the law now is and change it.

[Laughter]

Mr. Kavanaugh: --We don't know what the law... we don't know what the law is, Justice Stevens.

Unknown Speaker: But you're not urging that the law be what the D.C. Circuit... as I understand your position, you say, we think that death ends it, period.

The D.C. Circuit said there's some kind of balancing.

Do I understand you correctly to say, we think the D.C. Circuit was wrong, but we'll take that as second best, so that your position is, death ends the privilege?

Mr. Kavanaugh: We don't think the D.C. Circuit was wrong.

We do think the D.C. Circuit's articulation of the phrase, relative importance, has some inconsistency with what this Court has stated in cases such as Branzburg--

Unknown Speaker: Well, what is your first position, then?

Is your first position is, death ends it, or is it... is it--

Mr. Kavanaugh: --That is our first position.

Our second position, alternative positions is that relative importance is a standard that we would be happy with, but again, we--

Unknown Speaker: --And is that the ALI standard?

I think earlier you said the ALI agrees with you.

I thought the ALI position was, there's some kind of balance.

How--

Mr. Kavanaugh: --It's some kind of vague balancing.

As to Pennsylvania--

Unknown Speaker: --You're hold... your position is that it ends for both civil and criminal... no, only for criminal?

Mr. Kavanaugh: --Correct.

Unknown Speaker: All right.

If it's only for criminal, then who... which group of States... I guess the answer's none, but which group of commentators or law reformers or whatever have advocated that the rule apply... terminate only in criminal but not civil cases?

Mr. Kavanaugh: Well, with hesitation at raising their names again, Mueller & Kirkpatrick do suggest that--

[Laughter]

Unknown Speaker: The ALI... the ALI does not, is that--

Mr. Kavanaugh: Yes.

Unknown Speaker: --Right.

Mr. Kavanaugh: That's correct.

I want to make one point about--

Unknown Speaker: Yes.

Mr. Kavanaugh: --Pennsylvania.

For 22 years, Justice Kennedy, there's been experience in Pennsylvania after Cohen v. Jenkintown Cab.

It's a big State with a lot of lawyers, and there's no evidence, even with petitioners and their amici and their vast resources, of any chilling going on in the Commonwealth of Pennsylvania based on the experience--

Unknown Speaker: Do you have the... what I'm quite curious about is, of course, the California Code and maybe Pennsylvania, I don't know, are maybe a little ambiguous as to whether it ends at death, as I read it through here, so an explanation to the dearth of cases may be that all clients basically think they're privileged.

Lawyers think they're privileged.

Everybody thinks they're privileged, so they don't try to get it.

Now, is there any reason you have for thinking what I just said is wrong?

Mr. Kavanaugh: --I don't think many people have thought about this issue, Justice Breyer, it comes up so rarely, and that would be my--

Unknown Speaker: Well, is the reason that it comes up rarely, because California lawyers, throughout the country lawyers, clients throughout the country go in to a lawyer and they think, I'm safe.

They all think that's the rule, so they don't try to get it.

Is that the reason why there is a dearth?

Mr. Kavanaugh: --The reason that there is a dearth is the factual situation rarely comes up, we think, and clients know when they talk to their lawyers, I'm going to have to disclose these facts when I'm called to testify anyway, so that kind of chilling is far greater than anything we propose here.

Unknown Speaker: Thank you--

Mr. Kavanaugh: I thank the Court.

Unknown Speaker: --Thank you, Mr. Kavanaugh.

Mr. Hamilton, you have 2 minutes remaining.

Rebuttal of James Hamilton

Mr. Hamilton: Mr. Chief Justice, I want to come back to the work product issue, because I believe Mr. Kavanaugh has misstated the law in that... in that area.

I believe that the Upjohn case, the Hickman case demonstrate that the type of notes that I took are protected by the work product.

Upjohn says that notes that embody what the lawyer saw fit to write down enjoy special protection, not an ordinary protection, but special protection.

This is found at 449 U.S. at 399.

Unknown Speaker: Don't these cases usually come up in the context where somebody would want to use... where insight into the lawyer's thinking would be useful in litigation against the lawyer's client?

I mean, is it... what is the purpose of the work product privilege?

Is it some copyright benefit that the lawyer has in the particular, unusual way that his lawyer's mind works--

[Laughter]

--even in future cases that have nothing to do with this client, or with this litigation?

Mr. Hamilton: The work product privilege is intended to protect the adversary system.

It is intended to let lawyers work in a certain sphere without interference.

Unknown Speaker: Sure, so that your opponent can't see behind your thinking, your strategizing in this particular case.

Mr. Hamilton: That's--

Unknown Speaker: But when the case is all gone, when there's no case left at all, is there something sacrosanct about the way this lawyer's mind was working--

Mr. Hamilton: --Well--

Unknown Speaker: --in a long gone case that has no future implications?

Mr. Hamilton: --I think this Court, in the Grolyer case, has said that the work product privilege extends even after the litigation involved has concluded, but the purpose is to protect the lawyer's thought processes, his methods of working.

This protection--

Unknown Speaker: So it is sort of a copyright.

It's an intellectual property thing, right?

Is that what it is?

Mr. Hamilton: --I have not read any opinion, Justice Scalia, that describes it that way, but there are opinions, including the Moody case that Mr. Kavanaugh cites, that say that the work product privilege belongs to the lawyer as well as to the client, because the cases recognize that the lawyer has an interest to protect and the lawyer can assert that work product privilege even though the client does not.

Unknown Speaker: What is that interest that he has to protect?

Mr. Hamilton: It is--

Unknown Speaker: When there's... this litigation is all gone, it's not usable in any other litigation, what is the interest that the lawyer has to protect?

Mr. Hamilton: --It is protecting his thought processes, his methods of operation.

It allows him to prepare his cases in a certain amount of privacy, knowing that his adversaries will not have access to his work product.

Chief Justice Rehnquist: Thank you, Mr. Hamilton.

The case is submitted.

Unknown Speaker: The honorable court is now adjourned until Monday next at ten o'clock.

Attribution:

The Oyez Project

Featured:

Bracy v. Gramley - Oral Argument

Fri, 09 Jan 2009 14:50:09 +0000

Case:

Bracy v. Gramley

Media File:

96-6133_19970414-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Gilbert H. Levy

Chief Justice Rehnquist: We'll hear argument next in Number 96-6133, William Bracy v. Richard B. Gramley.

Mr. Levy.

Mr. 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.

Unknown Speaker: 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?

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

Unknown Speaker: Then why do you mention the attorney business?

Mr. 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.

Unknown Speaker: 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?

Mr. 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.

Unknown Speaker: 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.

Mr. Levy: No, Your Honor, if I may explain, please.

Unknown Speaker: Yes, certainly.

Mr. 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.

Unknown Speaker: 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.

Mr. 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.

Unknown Speaker: 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?

Mr. 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--

Unknown Speaker: 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.

Mr. Levy: --Thank you, Justice O'Connor.

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

It's probability of unfairness.

The good cause--

Unknown Speaker: Substantive standard for what?

Mr. Levy: --For judicial bias.

Unknown Speaker: For ultimate relief.

Mr. Levy: Ultimate relief.

Unknown Speaker: Ultimate relief.

Mr. 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.

Unknown Speaker: 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?

Mr. Levy: There... based upon this Court's past decisions, those types of assumptions have been made.

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--

Unknown Speaker: 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.

Mr. 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--

Unknown Speaker: Well, not a good judge.

He's a biased judge.

Mr. 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.

Unknown Speaker: 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.

Mr. 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--

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

Mr. 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--

Unknown Speaker: 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?

Mr. Levy: --As I understand the--

Unknown Speaker: Can you answer the question yes or no?

Mr. Levy: --Yes.

Unknown Speaker: 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--

[Laughter]

Mr. 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--

Unknown Speaker: 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?

Mr. 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--

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

Mr. Levy: --Any situation... no, not the guilty plea.

That's non... predominantly nondiscretionary, but in any situation where a court--

Unknown Speaker: 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.

Mr. Levy: --That's correct.

Unknown Speaker: 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?

Mr. 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--

Unknown Speaker: 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?

Mr. 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.

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.

Unknown Speaker: 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?

Mr. 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--

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

Mr. 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.

Unknown Speaker: Mr.... I'm sorry.

I didn't mean to cut off your sentence.

Mr. Levy: That's fine, Justice Souter.

Unknown Speaker: 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.

Mr. Levy: Okay.

Unknown Speaker: 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?

Mr. 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.

Unknown Speaker: 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?

Mr. 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--

Unknown Speaker: 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.

Mr. 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.

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

Mr. 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.

Unknown Speaker: 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.

Mr. Levy: That's correct.

Unknown Speaker: 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.

Mr. Levy: Justice Scalia--

Unknown Speaker: 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.

Mr. 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--

Unknown Speaker: 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?

Mr. 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--

Unknown Speaker: 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?

Mr. 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.

Unknown Speaker: Mr. Levy, is there any doubt about Judge Maloney's sex?

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

Mr. 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.

Unknown Speaker: --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.

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?

Mr. 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--

Unknown Speaker: Well--

Mr. Levy: --facts of the law.

Unknown Speaker: --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?

Mr. 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--

Unknown Speaker: Now, is one of those witnesses Swano, Mr. Swano?

Mr. Levy: --Mr. Swano--

Unknown Speaker: Do I have his name correctly?

Mr. Levy: --Justice Kennedy, it's Mr. Swano, who is the attorney who gave the bribes in most of these cases, including--

Unknown Speaker: Is he one of the key witnesses?

Mr. Levy: --He is, Justice Kennedy.

Unknown Speaker: 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?

Mr. 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.

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

Mr. Levy: Did not.

Unknown Speaker: Why did you not do that?

Mr. Levy: We felt we'd made a sufficient showing.

At the time, we felt that--

Unknown Speaker: 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?

Mr. 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--

Unknown Speaker: 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.

Mr. 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.

Unknown Speaker: 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--

Mr. 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.

Unknown Speaker: --Very well, Mr. Levy.

Ms. Preiner, we'll hear from you.

Argument of Barbara A. Preiner

Mr. 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--

Unknown Speaker: 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?

Mr. 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--

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

Mr. Preiner: --Whether he had... yes, a duly elected judge, and he was tried by the judge and a jury.

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

Mr. Preiner: I suppose it depends on the accountant, but--

[Laughter]

Unknown Speaker: No, but under your answer--

Mr. Preiner: But we would assume--

Unknown Speaker: --all accountants, we'd set it aside, even the most brilliant, fair-minded, honest--

Mr. 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.

Unknown Speaker: --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.

Mr. Preiner: Yes.

Unknown Speaker: And of course, that's the issue here.

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

Mr. 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--

Unknown Speaker: 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?

Mr. 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--

Unknown Speaker: Hadn't a bribe been invited or solicited in that case?

I thought that was part of the scenario.

Mr. Preiner: --I don't know... I don't know that a bribe had been solicited in particularly that case, but clearly this lawyer--

Unknown Speaker: But this lawyer had previously come up with bribes.

Mr. 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.

Unknown Speaker: Was it a bench trial or a jury trial?

Mr. 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--

Unknown Speaker: 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.

Mr. Preiner: --That--

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

Mr. Preiner: --And that is my understanding of the issue that the Court framed, and that is certainly the issue that we briefed, but--

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

Mr. Preiner: --Clearly, I agree with that, Your Honor.

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--

Unknown Speaker: 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?

Mr. 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.

Unknown Speaker: But he wants discovery for that very purpose.

Mr. 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.

Unknown Speaker: Well, he has Swano's testimony.

Mr. 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--

Unknown Speaker: You're not claiming that the... or maybe you are claiming that the writ is subject to dismissal right now?

Mr. Preiner: --I believe that if what--

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

Is that your position?

Mr. Preiner: --I believe that it was properly... it was subject to dismissal by the court below.

Unknown Speaker: 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?

Mr. Preiner: I believe that the transcript was unavailable.

I believe that the judge's trial was--

Unknown Speaker: 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.

Mr. 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.

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.

Unknown Speaker: 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?

Mr. Preiner: With all due respect, Your Honor, that's nothing more than speculation.

That's nothing more than--

Unknown Speaker: 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?

Mr. 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.

Unknown Speaker: 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?

Mr. Preiner: I believe they're all reasonable.

They're all reasonable speculation.

Unknown Speaker: 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?

Mr. Preiner: I suppose speculation would be among a range of probabilities.

I think that--

Unknown Speaker: 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.

Mr. 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.

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

Mr. Preiner: Frankly, Judge, this is the first time I've heard that claim made.

Unknown Speaker: That's the first time you've heard that?

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

Mr. Preiner: He never has.

He has never admitted any guilt.

Unknown Speaker: Has he... was he tried, or did he... he didn't plead guilty?

Mr. Preiner: He did not plead guilty.

Unknown Speaker: And he has been convicted?

Mr. Preiner: He has been.

Unknown Speaker: 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--

Mr. 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.

Unknown Speaker: --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?

Mr. Preiner: I don't believe that that would be sufficient to show that there was bias in this case.

Unknown Speaker: You do believe that it would?

Mr. Preiner: I do not.

Unknown Speaker: 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?

Mr. 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.

Unknown Speaker: 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?

Mr. Preiner: No.

I don't believe that it would have been made for that purpose, and--

Unknown Speaker: But let's assume that the trial is set in order to advance a conspiracy to take bribes.

Mr. Preiner: --Then, absolutely that would be evidence of bias in this case.

If we are assuming--

Unknown Speaker: And that would be grounds for--

Mr. Preiner: --that there's a conspiracy.

Unknown Speaker: --upsetting the conviction, would it not?

Mr. 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--

Unknown Speaker: 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.

Mr. Preiner: --I would never say that, Your Honor.

Unknown Speaker: No.

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

Mr. 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.

Unknown Speaker: 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?

Mr. 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--

Unknown Speaker: 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.

Mr. Preiner: --Well--

Unknown Speaker: Because the problem goes beyond this one case.

Mr. 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.

Unknown Speaker: What would be enough, in your view?

What would be enough?

You... he did show some things.

You said they weren't enough.

Mr. 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.

Unknown Speaker: Ms. Preiner, I'm... the brief that was referred to signed by former prosecutors, these people are former prosecutors?

Mr. Preiner: Former prosecutors, yes.

Unknown Speaker: They practice criminal law now?

Mr. Preiner: Some of them do, yes.

Unknown Speaker: Usually on behalf of defendants.

Mr. 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.

Unknown Speaker: 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]

Mr. Preiner: It includes--

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

Mr. Preiner: --And many law school professors and people from all--

Unknown Speaker: So it's not almost exclusively.

You really want to modify that statement.

Mr. Preiner: --Well, the lawyers who are criminal defense lawyers on there are lawyers who represent criminal defendants.

[Laughter]

Unknown Speaker: Thank you.

Mr. 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.

We believe that the Seventh Circuit appropriately affirmed that.

We would ask this Court to uphold that decision.

Unknown Speaker: 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?

Rebuttal of Gilbert H. Levy

Mr. 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--

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

Mr. 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?

Chief Justice Rehnquist: No.

Your time has expired.

The case is submitted.

Mr. Levy: Thank you.

Attribution:

The Oyez Project

Featured:

United States v. Armstrong - Oral Argument

Fri, 09 Jan 2009 14:49:48 +0000

Case:

United States v. Armstrong

Media File:

95-157_19960226-argument.mp3

Related Transcript:

1995_95_157_argument.xml

Transcript:

Argument of Drew S. Days, III

Chief Justice Rehnquist: We'll hear argument next in Number 95-157, United States v. Christopher Lee Armstrong.

General Days, you may proceed whenever you're ready.

Mr. Days, III: Thank you, Mr. Chief Justice, and may it please the Court:

Selective prosecution claims are among the most difficult our courts have to face, for they require striking an especially delicate balance between protecting prosecutorial discretion and decisionmaking from improper, outside interferences and scrutiny while ensuring that the law is in force in conformity with the Constitution and the rule of law.

This Court has noted that judicial scrutiny of a prosecutor's charging decision imposes high costs on the criminal justice system, and that since tradition and experience have taught that most prosecutors will faithfully obey their duty, courts should properly be hesitant to examine the decision whether to prosecute.

But courts must also discharge their responsibility to ensure that the Government enforces the laws evenhandedly, rather than based upon invidious discrimination, but when the Government acts with an evil eye and an unequal hand, rather than in a manner faithful to equal protection and due process, both those directly affected by that conduct in the rule of law are its victims.

This Court's decisions, especially in Yick Wo and Wayte, have struck this balance on the merits by requiring that, absent proof of an explicitly discriminatory classification, a criminal defendant alleging selective prosecution must make two showings in order to prevail, first, that persons in similar circumstances have not been prosecuted and, second, that the difference in treatment is motivated by an intent to discriminate against the group to which the defendant belongs.

In other words, there has to be a showing of both discriminatory effect and discriminatory purport.

This case, however, presents for decision a question that this Court has yet to resolve, namely, what standards should Federal courts utilize in determining whether a criminal defendant alleging selective prosecution is entitled to discovery.

Unknown Speaker: General Days, do you agree that the standard on this discovery claim should be whether a colorable basis is made out for the claim?

Is that the standard?

Is that the standard most commonly used in the Federal courts?

Mr. Days, III: It is the locution that's used by most of the courts of appeals, Justice O'Connor.

Unknown Speaker: And do you accept that--

Mr. Days, III: Well, not completely--

Unknown Speaker: --or do you ask us to adopt some other standard?

Mr. Days, III: --Well, I think that, although the courts have used various formulations, the bottom line is that all the courts of appeals, with the exception of the Ninth Circuit, that have addressed this issue have required that there be a showing of individuals who are similarly situated to the defendant.

Unknown Speaker: Well, is it your argument that that showing is necessary to establish a colorable basis?

How do you articulate the standard that the court should apply?

Mr. Days, III: The colorable basis terminology that's used... there have been references to prima facie evidence.

We think that the best standard is one derived from this Court's decision in Wade v. United States, that there has to be a substantial threshold showing.

That is, there has to be something more than assertions and generalized proffers on information and belief.

There has to be concrete evidence that the court can look to that leads it to believe that there's some basis for thinking that there is selective prosecution at work.

Unknown Speaker: I take it you have some reservation about phrases like, a colorable basis, as giving any real guidance to what to look for in the details.

Mr. Days, III: Precisely right, Mr. Chief Justice.

Unknown Speaker: Well, can you tell us what the details would be?

In a case like this, just what evidence that's accessible to the defendant would be necessary to establish a basis for discovery?

Mr. Days, III: Justice Ginsburg, the respondents have made the suggestion that the evidence that they need is within the control of the Government, but that is simply not so.

Unknown Speaker: But at least would you seek--

Mr. Days, III: There were many things that the respondents could have done, and let me lay them out.

Unknown Speaker: --Right.

Mr. Days, III: They could have done a further review of their own files.

They had looked at only cases closed in 1991, even though those cases would have been brought over a 3-year period.

This is a Federal public defender's office.

Presumably there are State public defender's offices, and they could have contacted those offices to determine whether the racial pattern that they asserted was reflected in Federal court was present or absent in State prosecutions.

Also, one of the respondents' counsel provided a declaration.

Mr. Reed indicated--

Unknown Speaker: Mr. Solicitor General, suppose... I don't remember which brief it is.

One of the amicus briefs says if you looked a little harder at statistics you'd find that there is a difference in the pattern in State and Federal courts.

If those facts are correct, and if they had been presented to the district court, would it have been appropriate to have discovery here?

Mr. Days, III: --Well, Mr. Justice Stevens, it really would depend upon the nature of that evidence and whether it provided a basis for the court--

Unknown Speaker: Well, if they came in with an affidavit, the public defender said, our files in State court show that 50 percent of the crack prosecutions are not Afro-Americans, whereas 100 percent of the Federal prosecutions are, would that be sufficient for discovery?

Mr. Days, III: --I think the court would have to decide whether that information--

Unknown Speaker: How would you decide if you were the court?

Mr. Days, III: --Well, I'd have to look at the universe.

I would have to look at--

Unknown Speaker: The universe is the files of the Federal... of the State defender and the Federal defender in 1991.

Mr. Days, III: --I think 1991 would be too narrow a time frame for that type of determination.

Unknown Speaker: Even if there are 100 cases in each file?

Mr. Days, III: I don't think that that would be the case, Justice Stevens.

I think that would be inadequate under these circumstances.

It certainly would not solve the second part of the problem, which is whether there's some indication of discriminatory intent.

Unknown Speaker: General Days, what is your basis for requiring a substantial threshold showing with respect to this category of defense, assuming that we're proceeding under Rule 16?

Is that what we're... are we proceeding under Rule 16?

If we're under Rule 16, what it says is that upon request of the defendant, the Government shall permit the defendant to inspect and copy, blah, blah, blah, which are within the possession, custody, or control of the Government, and which are material to the preparation of the defense.

Now, we do not in other situations inquire how strong the defense is before we apply that provision.

What is the justification for doing it here, unless... unless Rule 16 is not applicable.

Do we have some argument that it's not applicable?

Mr. Days, III: Well, there are two responses, Justice Scalia.

One is that, as the Court has recognized, there's no general right to discovery in a criminal trial, and this Court, for example, in Wade, recognized that there, the defendant had not made a substantial threshold showing to require the prosecutor to open up his files to explain why there had not been a motion for substantial assistance.

Unknown Speaker: But there is a general right to discovery.

It's set forth in Rule 16.

Mr. Days, III: I think--

Unknown Speaker: I mean, apart from Rule 16 there is no general right, I assume, and if you can get me out of Rule 16, then I'll be prepared to entertain your notion that we should require a substantial showing first.

Mr. Days, III: --I don't have to get you out of Rule 16, Justice Scalia.

I think the materiality requirement suggests that there has to be some showing by the defendant of evidence, some factual basis for believing that he does have a particular defense, and so--

Unknown Speaker: I--

Mr. Days, III: --that is really circular here.

It gets us back to the point--

Unknown Speaker: --So you say a substantial threshold showing that the defense is valid is always necessary under Rule 16.

Is that... is that your position?

Mr. Days, III: --I think--

Unknown Speaker: I thought it was just a special showing you were going to require in this kind of a case.

Mr. Days, III: --Well, there are obviously other types of material that are available under Rule 16, but the point here is that Rule 16 has to be read against a backdrop of this Court's presumption that prosecutors act lawfully, and that the investigation by outsiders or inquiries by outsiders of how prosecutors carry out their responsibility imposes substantial cost on the system.

Unknown Speaker: Well, what I was going to suggest is that Rule 16... what is it, 16(a)(2) makes it clear that you can't use (C)... (a)(1)(C).

Are you reading from somewhere in the briefs?

I'm reading from the Rules of Criminal Procedure, Chief Justice, Rule 16.

I don't know where it's set forth in the briefs, but I think we have it up here somewhere.

I'm not sure that the briefs anywhere set forth the entirety of Rule 16.

Mr. Days, III: Well, Justice Scalia, as we've addressed in our reply brief, there are specific provisions of Rule 16 that go to the availability of certain material.

Unknown Speaker: Let me complete the thought I was beginning with.

There is a provision of Rule 16 which says that subsection (C), which is what is relied on here, does not, it says... I'll read it.

Except as provided in paragraphs (A), (B), (D) and (E)--

--What page of the rules are you reading?

It is rule 16--

--72.

--(a)(2).

Thank you.

Which says that except as provided in paragraphs (A), (B), (D), and (E), notably excluding (C), this rule does not authorize the discovery or inspection of reports, memoranda, or other internal Government documents made by the attorney for the Government or other Government agents in connection with the investigation or prosecution of the case.

Now, I suppose you could argue that (C) enables you to get all of the Government information relating to this discriminatory prosecution matter, all Government documents except those relating to this case, all those relating to these other cases but not to this case.

I suppose you could argue that, but that would be a very strange rule, and it seems to me that the existence of (2) suggests that perhaps the word, relating to the defense, material to the preparation of the defendant's defense in (C) refers to defense on the merits.

Mr. Days, III: That's correct.

Unknown Speaker: And not to a defense of this sort.

Yes.

And that would get you out of Rule 16, and then we could talk about what the Constitution requires the Government to cough up, and we could adopt a rule such as, for a defense of this sort there has to be substantial threshold showing.

But as long as you leave me in Rule 16, I have real troubles.

Mr. Days, III: Well, I'm certainly not going to reject that suggestion, Justice Scalia.

[Laughter]

But I think that--

Unknown Speaker: What does that suggest you do, for example, to suppression?

What does it do to motions to suppress?

What does it do to Fifth Amendment claims?

What does it do to Fourth Amendment claims?

Mr. Days, III: --Right.

Unknown Speaker: What does it do to a whole range of claims that actually are there for reasons of constitutional or administrative--

Mr. Days, III: Yes.

Unknown Speaker: --So I'm nervous about that.

Mr. Days, III: Well, I think, Justice Breyer, that we believe we can remain within Rule 16 and nevertheless support the substantial threshold showing that we've been advocating.

That's in essence what Wade said about--

Unknown Speaker: Well, in aid of Justice Breyer's question, suppose... what happened before Rule 16 was on the books?

What was... what is the authority or the source of law for the court ever to order discovery?

Is it the inherent powers of the court?

Mr. Days, III: --I think it's a due process standard.

Unknown Speaker: There was a rule that had in some words about reasonableness, and they cut out the words about... at least that's what my law clerk found out.

There was a previous rule that had a standard of reasonableness in it, and then they cut that out.

Are you... you may not be familiar with it, in which case it doesn't matter.

Mr. Days, III: No, I'm not familiar--

Unknown Speaker: Only in a constitutional case can a court ever order discovery?

Before Rule 16 came onto the scene, because if we knew that, then we'd know whether or not Rule 16 was designed to contain the entire authority for the courts to order discovery, or whether or not there's some inherent authority, or something like that.

Mr. Days, III: --Well, Brady, for example, is a rule that is outside of Rule 16.

Unknown Speaker: That has a constitutional basis.

Mr. Days, III: That's correct, and so to the extent there are these constitutional requirements, I think as Justice Breyer was suggesting, they would stand outside of Rule 16.

Unknown Speaker: General Days, are there things that were requested in this case that fall within Rule 16's (a)(1)(C) articulation... books, papers, documents in the possession or control of the Government?

Were things asked for that fit within that rule?

Mr. Days, III: Certainly documents.

There was a request for a list of Federal narcotics prosecutions and firearms prosecutions that were brought over a 3-year period between 1989 and 1992.

Unknown Speaker: Is a request for a list, where the Government has to compile a separate list, the same as a request for documents?

Mr. Days, III: No, it is not.

Unknown Speaker: Well then, it seems to me that this may not have been under Rule 16(C).

Mr. Days, III: Well, if there were a print-out, just like a paper list, I suppose that could be regarded as a document, but I take your meaning.

Normally discovery does not require a party to create documents in connection with discovery.

There was also a request for information with respect to the criteria that are used by the United States Attorney's Office for the Central District of California in bringing crack cocaine prosecutions.

Now, to the extent that that was written down somewhere, supposedly it could be argued that that's a document that was available under Rule 16.

Unknown Speaker: General Days, before we get to the question of what could be discovered if there could be discovery, you were going to tell me what in the Government's view would be necessary concretely to satisfy that substantial threshold question, and you gave one answer that I found surprising, but it was your answer that even if you had 100 percent African Americans in Federal court in a given year and 50 percent Caucasians in the State court in that same year, that that would not have been enough.

Mr. Days, III: Well, I think that, Justice Ginsburg, under those circumstances the Court might well ask the Government for some indication, but it may not result in full discovery, or the providing by the Government of the type of information that was being sought here to the defendants.

Unknown Speaker: But you said that would require something rather than nothing, but if... I'm just not clear on... the Government does the negative side--

Mr. Days, III: Yes.

Unknown Speaker: --well, but you don't say what it would take.

Mr. Days, III: Well, I think that the example that Justice Stevens gave, and you gave, would be going a very long way toward showing that there was a selection.

There would be people similarly situated.

At least presumably that would require the Government to say something in response to that, but we certainly don't have that in this case, and what the Ninth Circuit has done is completely dispense with that requirement.

Basically, what the en banc court held was, there's no need to show a comparable pool.

What you're talking about is a comparable pool, a statistical disparity.

Well, what the Ninth Circuit said was, in cases like this there's no need for that comparable pool.

One simply assumes that persons of all races commit all crimes.

Now, that has some rhetorical power, but the question is, what objective rule it offers is very hard to discern.

Unknown Speaker: Okay, but if we agree with you that in fact there's... there are two prongs involved here, and we then pose Justice Ginsburg's question, what if they had come in with the evidence which I guess turned up later, a year or so later in the State reports, that something like 50 percent of the State crack prosecutions were Caucasians, I take it... and please correct me if I'm wrong... that you would say, even though that addressed the second prong, it did not address it to a sufficient degree.

It did not meet the high... the substantial threshold test, and I assume the reason you would say that is because the State statistics do not show how many of these people were gun carriers, and it doesn't show the severity of the offense.

Did they have just a little bit of crack, or were they dealers, and so on.

You would say that it still wasn't enough, even though it addressed the question of comparability, to show that there really was comparability.

Would that be the Government's position?

Mr. Days, III: No, Justice Souter.

If you're referring to the Burke study that was introduced later, that is a study that I think proves only one thing that's relevant in our estimation in the context of this case, and that is that the defendants in that particular proceeding where the Burke study was introduced were able to show that they could get this information, and therefore the argument that respondents make in Armstrong, in this case, that they could not have acquired that comparative information, really seems quite unpersuasive.

Unknown Speaker: Well, let's just assume that they couldn't have had anything but the terms of the study, and they said, this satisfies each of the prongs.

Mr. Days, III: Yes.

Unknown Speaker: Would it be the Government's position that it didn't satisfy the second one because it did not show to a sufficiently high or probable degree that there really was comparability?

Mr. Days, III: No, Justice Souter.

The en banc court suggests that what the Government was demanding here was that defendants include some sophisticated regression analyses closely following the dictates of the scientific method.

That is not what we were suggesting.

We think in a situation such as you describe the Government would have a responsibility to come forward and show, in some fashion or another, that there was an absence of comparability, but we don't think that defendants should be put to the--

Unknown Speaker: Okay, so you--

Mr. Days, III: --responsibility of figuring out at every point the degree to which one group is comparable to the other.

Unknown Speaker: --But you would say, then, that you had a burden to respond.

Mr. Days, III: Yes.

Unknown Speaker: But not a burden to comply with the discovery request.

Mr. Days, III: Well, I think where there is this similarly situated showing, that may well shift the burden to the Government--

Unknown Speaker: No, but I want to understand... I, like Justice Ginsburg, I'm trying to get an example so that I know what we really mean--

Mr. Days, III: --Yes.

Unknown Speaker: --when we use the terms, and I take it in the example you're saying... that I gave, that that would result perhaps in a shifting of the burden of persuasion, or at least the burden of going forward, but it would not result in a satisfaction of this threshold which would obligate you to produce the discovery that they want.

Mr. Days, III: Well, not the full discovery.

In other words, it would not operate automatically, but I think, Justice Souter, that unlike this case, when the defendants actually show that there is a similarly situated group... that is, there appears to be some comparability between the two populations... that then gives the district judge some authority to probe that, and to evaluate exactly what those figures mean.

Unknown Speaker: So some discovery, then, would... so you're saying discovery is a step-by-step process, and the Government would perhaps not merely have had the burden shifted back to it, but the Government could properly be subjected by the district judge, as it were, to satisfy that burden.

The judge could say, look, you produce some rebutting evidence, and you would be subject to that degree of discovery, is that correct?

Mr. Days, III: Right.

It's a step-by-step process once the defendants have shown a group of similarly situated individuals.

The problem with this particular case is that the judge was asking the Government to respond before there had been an established--

Unknown Speaker: Oh, I quite... I realize that.

Mr. Days, III: --situation.

Unknown Speaker: But what you're saying, then, is that I think that it's a mistake to think of discovery... the discovery obligation as being an all-or-nothing obligation.

Mr. Days, III: That's right.

Take--

Unknown Speaker: And you're saying that if you went as far as to get the Burke study in, there would be a discovery obligation to produce evidence, if you had it, that would tend to disprove the suggestion of comparability, and if you met that, that's where the process would end.

Mr. Days, III: --Yes.

Unknown Speaker: If you didn't meet that, then I presume even further discovery might be warranted.

Mr. Days, III: Yes.

Unknown Speaker: Is that--

Mr. Days, III: Let me make... yes, that's correct, but let me make clear about the Burke study.

That has been challenged by the Government as being significantly flawed, and it is not part of the en banc decision.

It was referenced by--

Unknown Speaker: --I realize... no, I realize--

--What was it--

Mr. Days, III: --the dissents for the panel.

Unknown Speaker: --May I ask--

--Flawed or not, what was the percent that was shown in the State courts in that study?

Mr. Days, III: I don't recall, Justice Ginsburg, because there were challenges as to the accuracy of that information.

But I just wanted to respond to Justice Souter a little bit further.

We refer to the case of United States v. Holmes.

That was a case where a black farmer had been charged with violating the law with respect to certain contracts that he had with the Government.

He was able to identify the names of 30 white farmers who had not been prosecuted for crimes charged against him.

Under those circumstances, the district court asked that the Government come forward, or directed the Government to come forward and explain that disparity, which the Government did to the satisfaction of the district court.

Unknown Speaker: Is this a court of appeals case--

Mr. Days, III: Yes, it is.

Unknown Speaker: --or one of our cases?

Mr. Days, III: It's from... it's the Eighth Circuit.

Unknown Speaker: You know, the only cases of ours that I'm aware of... what cases of ours involve this area of selective prosecution?

Yick Wo and Ah Sin--

Mr. Days, III: Ah Sin, and Wayte.

Unknown Speaker: --And--

Mr. Days, III: And Wayte.

Unknown Speaker: --What was the... what was involved in Wick?

Mr. Days, III: In Wayte?

Unknown Speaker: Yes.

Mr. Days, III: Wayte had to do with the allegation that persons who had failed to register for the draft were being selectively prosecuted because they were vocal opponents to that particular program.

Unknown Speaker: You see, in both Ah Sin and Yick Wo, which are the classic cases, you had at issue a local ordinance, and the ordinance was a phony, because in fact it was only being enforced against one racial group.

I'm not sure that there's a parallel at the Federal level, where you have a valid Federal criminal statute and even in one jurisdiction, even one U.S. Attorney is in fact enforcing it against only one racial group.

Why should that be the level that you inquire into to see whether there's been discriminatory enforcement?

Why shouldn't it be all prosecutions by a particular U.S. Attorney?

Suppose you show that this particular U.S. Attorney has never brought a prosecution against a white man under this statute.

Would that be enough to show selective prosecution, even though the rest of the office is prosecuting everybody indiscriminately, and some of them may have brought prosecutions only against whites, and not against blacks?

Mr. Days, III: I think there would have to be some showing that there was a comparably situated--

Unknown Speaker: Probably--

Mr. Days, III: --white defendant.

Unknown Speaker: --So why should the office be the criterion?

I'm very resistant to the notion that because you have one bad egg in the Federal prosecutor's office we punish him by letting somebody who's been duly convicted of a crime walk away.

Why shouldn't the test be whether this statute is being selectively enforced Nationwide, just as that was the issue in Yick Wo and Ah Sin?

Why should one U.S. Attorney's Office invalidate the whole system?

Mr. Days, III: Well, I think, Your Honor, the Government certainly is not standing here arguing that it's permissible for any U.S. Attorney to bring discriminatory prosecutions and avoid the sanction of the law simply because it's one office as opposed to the entire country.

Unknown Speaker: Let's sanction him, but why should the criminal defendant who's been guilty of the offense walk away?

Mr. Days, III: Well, the fact that the defendant shows that there is selective prosecution generally does not mean that that particular defendant would walk.

I think the defendant has on the merits the responsibility to show that that discriminatory pattern in his case resulted in his being prosecuted.

Unknown Speaker: General Days, can I go back to a really fundamental question that's troubling me here--

Mr. Days, III: Yes.

Unknown Speaker: --because we're really talking about discovery, not the ultimate outcome of the case.

Is it the Government's position that Rule 16 is the source of the authority, or is it the Government's position that the authority must be found elsewhere, the authority for a judge to order discovery?

Mr. Days, III: Rule 16, within Rule 16.

Unknown Speaker: Is it your position that Rule 16 provides the authority, or if it's not there, is it possible it's found elsewhere?

That's my question.

What is the source... do you acknowledge the judge has authority, and whatever the threshold is, when you meet the standard, can the judge order discovery, and if so, why?

Where does he get the power?

Is it all from Rule 16, or even if Rule 16 does not apply, is there nevertheless authority, an inherent power kind of authority in the judge to order discovery in an appropriate case?

Mr. Days, III: Well, Justice Stevens, I think that as a general matter it would be Rule 16, but as I've indicated there are--

Unknown Speaker: But if we find that Rule 16 applies, that's the end of the--

Mr. Days, III: --Well, the respondents are relying upon Rule 16 for the type of discovery that we're seeking, and I think we've made very clear that Rule 16 doesn't grant that authority.

Unknown Speaker: --And does it follow, if Rule 16 doesn't grant it, that there is no authority?

Is that your position?

Mr. Days, III: I would be reluctant to say that a district judge is completely precluded from ordering discovery under some circumstances, but there's no showing of any such circumstance here.

Unknown Speaker: Oh, I understand you don't... but if an appropriate showing is made, and if Rule 16 does not apply, would the Government agree that there is power in the judge to order discovery?

Mr. Days, III: I would say that there is not that power.

Unknown Speaker: There's not that power.

Mr. Days, III: No.

Unknown Speaker: Well, is your answer to Justice Stevens that there is not that power an answer across the board?

Mr. Days, III: No.

I... no.

There is this general power.

Unknown Speaker: There are some constitutional issues which can only be litigated if the court does have the power to order discovery--

Mr. Days, III: Yes, that--

Unknown Speaker: --Isn't that so?

Mr. Days, III: --Yes.

As I mentioned--

Unknown Speaker: Why wouldn't this be one of them?

Mr. Days, III: --Yes, Justice Souter.

I mentioned earlier that something like Brady is a constitutional rule.

There are other rules that--

Unknown Speaker: Okay.

What about this?

Why wouldn't the judge simply as a matter of necessity in implementing the Equal Protection Clause--

Mr. Days, III: --Yes.

Unknown Speaker: --Have the right?

Mr. Days, III: Yes.

Unknown Speaker: And he would.

Mr. Days, III: I misspoke.

Unknown Speaker: Yes.

Mr. Days, III: I'd like to reserve the rest of my time for rebuttal.

Unknown Speaker: Very well, General Days.

Ms. O'Connor, we'll hear from you.

Argument of Barbara E. O'Connor

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

We believe the district court's order for limited discovery in this case should be affirmed for several reasons.

First... and we agree with much of what Solicitor General Days has said.

We agree that Rule 16 applies to this case.

The request made at the district court level was for specific documents.

Those documents were found by the district judge to be relevant and material under Rule 16, and we believe the district court applied the appropriate standard and applied the appropriate considerations in determining--

Unknown Speaker: But you wouldn't be entitled to... under 16 you wouldn't be entitled to any documents pertaining to this case.

Mr. O'Connor: --That's correct, Justice Scalia, but--

Unknown Speaker: It's very strange to establish a selective prosecution claim without the use of any documents pertaining to the case in which the selective prosecution is alleged to have occurred.

Isn't that extraordinary?

Mr. O'Connor: --I think, as the Court has suggested in argument, discovery is a step-by-step process.

This was the preliminary step that we took toward the end of meeting the burden of... to--

Unknown Speaker: I understand that, but what it suggests to me, the fact that you cannot get any of these documents from this prosecutor, is that Rule 16 was not designed for this kind of a defense at all, that perhaps when it refers to the defendant's defense, it means his defense on the merits, and this constitutional claim comes up under our inherent powers to require discovery with respect to constitutional claims.

Isn't that a possibility?

Mr. O'Connor: --Well--

Unknown Speaker: Indeed, a likelihood?

Mr. O'Connor: --we disagree with that position.

I think selective prosecution is a defense, and is encompassed by the phrase, defense, in Rule 16.

There's certainly nothing to exclude it from application of the rule.

Unknown Speaker: Well, but certainly there is a difference, Ms. O'Connor, between the kind of defenses one normally talks about to a criminal prosecution and the selective prosecution argument, is there not?

Mr. O'Connor: Selective prosecution doesn't go to the traditional notion of guilt or innocence, as I believe you're suggesting--

Unknown Speaker: Yes.

Mr. O'Connor: --Mr. Chief Justice.

Nevertheless, it is a defense in the sense it, if proven, results in nonconviction.

Unknown Speaker: So you say it results... in other words, the person simply "walks".

Mr. O'Connor: That would be the ultimate result were we able to put forward sufficient evidence at that level.

Unknown Speaker: To show that there was a selective prosecution.

Mr. O'Connor: That's correct.

Unknown Speaker: He goes scott-free.

Mr. O'Connor: Dismissal would be the appropriate remedy for a constitutional violation based on race.

Certainly the Ninth Circuit recognized immediately this is the most serious kind of a claim that a defendant can raise, and that is racial selectivity.

Based on that claim, the district judge ordered very limited information, which we do believe is encompassed by Rule 16, and we believe that the standards, the traditional standards that apply to Rule 16 requests, apply in this case, and no higher standard should be set because we are making a claim of possible racial selectivity.

Unknown Speaker: Ms. O'Connor, do you think that either the district court or the Ninth Circuit was relying on Rule 16 in making their various orders and judgments?

Mr. O'Connor: I--

Unknown Speaker: You don't mention it, and how are we to know if they were thinking in terms of Rule 16?

Mr. O'Connor: --I understand your question, Justice O'Connor, and while we never mention Rule 16, it was clear we were asking for documents, it's clear the documents are contained in Rule 16.

Unknown Speaker: Is everything you were seeking matters that you think are covered by Rule 16?

Mr. O'Connor: I believe that those documents would be covered by Rule 16.

Certainly we don't know if the documents were in the Government's possession because the Government chose to not comply with the order.

The Government never suggested they didn't have possession of the documents, or--

Unknown Speaker: Do you think Rule 16 can be used to require the Government to conduct a survey, or produce information that it doesn't already have reduced to documentation?

Mr. O'Connor: --What I would anticipate, and what I would have anticipated at the time in early 1992, was that the Government would proffer that objection to the request and say we don't have these documents and we can't be compelled to create a summary based on your request.

Unknown Speaker: Yes, and what is the answer?

Mr. O'Connor: I think that the answer would be the Government cannot be compelled to create a document under Rule 16.

Unknown Speaker: Now, at the time that your discovery request was made, and that the district court made its ruling, is the only thing the district court had before it the summary of the closed cases for the year in question from the central district?

Is that the sum total of what was offered, and that the district court had in front of it?

Mr. O'Connor: The district court--

Unknown Speaker: At the time of its order.

Mr. O'Connor: --At the time of its order was in possession of the limited survey to which you reference.

Unknown Speaker: And that's all.

Mr. O'Connor: And that was all at the initial hearing.

Unknown Speaker: And at the time the district court entered its order.

Mr. O'Connor: The final order was issued in December.

Unknown Speaker: Well, its initial order.

Mr. O'Connor: At the time of the initial order.

Unknown Speaker: And do you think that that was sufficient to compel the discovery, and to justify the order?

Mr. O'Connor: I do think it was sufficient, and I also believe the record reflects that the district judge was relying to some extent on her own experience, as district judges do when presented with discovery requests.

This judge, having been in the Central District of California for a number of years and previously having been a State court judge, would know whether we had access to the documents requested, would bring her own experience to the discovery order.

Unknown Speaker: Well, her own experience of what sort, Ms. O'Connor?

Could she say, now, I've been sitting here for 10 years, and I've tried so many of these crack cocaine cases, and all the defendants were black?

Mr. O'Connor: Well, certainly we wouldn't expect a district judge to proffer her own evidence in support of the motion.

Nevertheless, when district judges make discovery orders and consider requests by defendants, I think they rely on their experience, and that's part of the reason that this Court and the appellate courts offer discretion to the trial judge--

Unknown Speaker: So it would be permissible, in your view, for the district court to take into consideration in granting a discovery request her own recollection of the percentage of blacks and Caucasians that had been in crack cocaine cases in her particular court?

Mr. O'Connor: --I think that common sense tells us that district judges rely on their own--

Unknown Speaker: I didn't ask you what common sense told us.

I asked you if you thought it would be correct for a district--

Mr. O'Connor: --Yes.

Unknown Speaker: --You do.

Mr. O'Connor: I think it would be correct, and I think this district judge, in framing the order, recognized and mentioned that a number of these type of cases had come through the Central District of California.

This is something that would be within her particularized knowledge, not apparent to an appellate court reviewing the decision.

Unknown Speaker: What about the knowledge of the public defender?

The public defender has knowledge, or access to knowledge of what's going on in the State courts, and also typical in these cases to have statistics, and sometimes individual instances, but no individual instance was brought forward of a similarly situated Caucasian who was prosecuted in the State court.

Mr. O'Connor: That's correct, Justice Ginsburg, and had we been ordered to find one, perhaps we could have gone out--

Unknown Speaker: The question is, what did you have to show to meet the threshold for discovery, and I'm asking, is such information accessible to a defendant without resort to discovery against the U.S. Attorney, and I think you've just answered yes, it is, but you didn't get it.

Mr. O'Connor: --The information that you are referencing is not easily accessible, and in many instances is not accessible at all.

Unknown Speaker: Why couldn't you just go to a... you know, in your own office, in your own experience, other people?

You'd say, look, have... anybody had a defendant who was white, who was accused of a crack case?

You could go to a bar association meeting and say, aren't there anybody here, you know, a bar... a criminal defense lawyers meeting, or... say, please, I just need some examples.

Aren't there any examples here of two or three people who are crack defendants who are white?

And I would have thought, if there is selective prosecution, they would have had lots of examples, and why is that a burden?

Mr. O'Connor: At the time that we raised the motion, we were not limiting our claim solely to the possibilities among crack defendants.

In fact, we were talking about patterns.

We presented a pattern to the district judge.

We were never under the impression that had we come in with one white crack defendant--

Unknown Speaker: I'm not saying one, but... I have no idea what the number would be.

What I'm trying to get at I think is what Justice Ginsburg was trying to get at.

The Government has argued within Rule 16 a selective prosecution case is a tough case to make, really tough, because it... because of various policies and prosecutorial discretion, and so forth.

You should at least have to show that there are some... they don't say what number, but that there were some comparably situated white defendants who were not prosecuted in the Federal courts.

Now, is it a burden to do that?

Why is it difficult just to go to a meeting in your own office, the State office, the bar association, and say, we're trying to make out this defense.

I'd appreciate anyone who can give me examples of white crack defendants who were prosecuted in State court.

It should be easy.

Why isn't it?

Mr. O'Connor: --Number 1, we disagree that that's required in order to obtain discovery.

But Number 2, the more practical question that you pose, Justice Breyer, we did make some efforts to obtain that information, and again, I have to suggest to this Court that the local circumstances in Los Angeles were important considerations, and something that again requires deference to the district judge.

Los Angeles, the Central District of California encompasses a huge geographical area.

The State court system is broken up into many, many different courts.

In fact, there is no centralized record-keeper of crack and powder cases, for example, and the information is not accessible to defendants with ease, and in some instances is not accessible at all.

For example, our request for the Government's charging criteria is solely within the possession and knowledge--

Unknown Speaker: Would you comment on the Solicitor General's argument that the Burke study shows that this information was in fact available?

Mr. O'Connor: --The Burke study was conducted over a period of time that encompassed, I believe, more than a year.

The district judge in that case ordered payment for a paralegal to compile information.

The attorneys were paid by the court to collect the information.

Certainly that took--

Unknown Speaker: But it was done by the defense, I take it.

Mr. O'Connor: --Pardon me?

Unknown Speaker: The Burkes memorandum was prepared by and submitted by the defense.

Mr. O'Connor: That's correct, although ordered by the district judge in the context of an ongoing discovery dispute and resolution of the request.

Because the Burke study came into existence, however, I don't think means that the discovery order in this case was improperly granted.

I think the district judge must have the discretion to order levels of discovery, and perhaps had the district judge been presented with the information that we requested, that might have been the end of the issue completely.

This is one reason why we suggest that Solicitor General Days' substantial threshold showing is inappropriate, and that the district judge must have the discretion to order limited discovery along the way, perhaps moving towards an easy and quick resolution of the matter rather than wait 18 months through many, many months of hearings to obtain something like the Burke study.

It might have been that had the Government complied with this order, the case might have been closed, or resolved in the manner that a district judge would, for example, resolve a summary judgment question.

Unknown Speaker: Ms. O'Connor, am I wrong in thinking that the Burke study showed that there was... the figure of white defendants was between 3 and 4 percent?

Mr. O'Connor: I believe that's the ultimate finding.

The Burke study--

Unknown Speaker: But just sticking with that, it's nothing like 50 percent, 3 and 4 percent.

If you take the universe of prosecutions in the Federal court for crack cocaine conspiracies, 3 to 4 percent would equal how many defendants?

Not many.

Maybe even a fraction of one.

Mr. O'Connor: --Well, may I suggest, Justice Ginsburg, this is precisely why the district judge made the order that she did asking for expert testimony.

The judge was not willing, on the record before her, to find the Government's explanation for the pattern persuasive.

In fact, she said, I cannot resolve this issue without expert testimony, and the kind of issues that you pose, Justice Ginsburg, are the kind of disputes that would be ongoing--

Unknown Speaker: I don't understand the expert testimony.

If the numbers would show that if you're comparing State and Federal you would expect very few Caucasians in the Federal court, because you're not trying to make... you're trying to make a case of comparing State and Federal.

Well, the numbers that came out don't seem to support your case very strongly.

Mr. O'Connor: --I don't believe that we're limited solely to that claim and, in fact, there may be other areas of selectivity that come up as discovery is--

Unknown Speaker: I thought your claim was the disparity between State and Federal prosecutions, because the Federal prosecutions involve the higher penalty, and as Justice Ginsburg points out, even under the Burke study, 3 percent of 42 defendants is 1 defendant.

That universe is completely insubstantial as a showing.

Mr. O'Connor: --The question of the appropriate universe for comparison has been shifting over the course of time, and during this 3-1/2 years or--

Unknown Speaker: But it is correct that you were comparing State prosecutions and Federal prosecutions.

That was your point, was it not?

Mr. O'Connor: --That was one point.

There may have been other areas for us to pursue.

Unknown Speaker: But that's the problem, because being a very good defense lawyer, you probably could think of dozens and dozens of possible comparisons, and what's worrying me is that, because you are so good at thinking up definite... you know, lots of different comparisons, some of which may be true, I don't know, but if the... if there isn't some burden to show, in addition to the large number of African-Americans who were prosecuted in this category, here are some comparable people who were Caucasian, and they weren't, which doesn't seem like a big burden, that the thing could go on endlessly as you think of more and more categories and they have to respond more and more.

That's what's actually worrying me.

That's why I asked, couldn't you just ask at a meeting of defense lawyers, did anyone have a white defendant?

That's my whole problem, which I'm asking you to respond.

Mr. O'Connor: I understand that, Justice Breyer.

My problem in responding to that question, however, is that I think it's wrong to say that the universe of comparators is established, or must be established by the defense before the defense requests discovery, and this case is the perfect example of an evolving universe of comparators.

Unknown Speaker: Well, why isn't that just in accord with the principle that, you know, we do try to have the main issue in trials be whether the defendant is guilty or not.

That is so rarely the issue nowadays, in cases that come up to us, anyway.

The issue is whether the Government has been guilty of not turning over information required by Brady, or whether the Government conducted an unlawful search and seizure, or whether the Government did not give a proper Miranda warning, or, if the Government has behaved properly, whether the attorney was incompetent and did something wrong.

Isn't it reasonable to insist that by and large our criminal trials ought to be about whether the defendant is guilty of what he's charged with having done and, therefore, shouldn't we establish a fairly high threshold to bring in these extraneous issues which enable defense counsel to put the Government on trial instead of the defendant, and the Government is saying, we want a high threshold.

You have to come in with a substantial showing.

Why isn't that a good enough reason for it?

The criminal prosecutions are supposed to be about whether the defendant is guilty of the crime.

Mr. O'Connor: Well, certainly, Justice Scalia, the universe of cases presented to you is much different from the universe of cases that are dealt with at the district level, where guilt and innocence is determined every day, and we are certainly present for much of that.

It's the rare case where a racial claim does go forward, and it's the rare case where a motion to suppress is granted.

When statistics such as those we compile are presented, however, that is the rare case where a district judge must--

Unknown Speaker: Ms. O'Connor--

Mr. O'Connor: --have discretion to look at the issue.

Unknown Speaker: --the question, why should this be the rare case in light of something else that has been going on?

The Ninth Circuit said, we must assume going in that all kinds of people commit all kinds of crimes, and yet we have seen for the first time ever a proposal of the Sentencing Commission rejected by Congress, and it was to even out the penalties between crack cocaine crimes and powdered cocaine for the very reason that whites commit disproportionately powdered cocaine crimes and African-Americans disproportionately crack cocaine crimes.

Mr. O'Connor: That certainly is the backdrop against which this whole issue is framed, the disparity between the sentencing schemes that everyone is concerned about at all levels and in all branches of Government.

Unknown Speaker: But the concern stems from the identity of a particular crime with one racial group more than another.

Mr. O'Connor: If that presumption is true, and the Government is able to come forward with evidence that shows--

Unknown Speaker: The Sentencing Commission thought it was true.

Mr. O'Connor: --I believe the Sentencing Commission is certainly concerned about the pattern of prosecutions.

The Sentencing Commission has no idea what cases are being declined.

Unknown Speaker: Well, I take it, just for... Justice Ginsburg's point is that the backdrop that you refer to has a premise which is fundamentally inconsistent with yours--

Mr. O'Connor: I would disagree with the idea that that has been proven.

I think there are many white crack cocaine users and dealers out there.

I don't think the Government argues that--

Unknown Speaker: --So the Sentencing Commission is wrong in its suggestion.

Mr. O'Connor: --The Sentencing Commission is looking at the end result.

They're looking at the convictions, the sentences imposed.

They have some information about users and dealers, but primarily their focus is on the sentencing scheme.

Unknown Speaker: But if you don't accept judgments of conviction as probative because you say they themselves may have been the result of racial prosecution, then there can never be any end to the argument.

Mr. O'Connor: Mr. Chief Justice, what we're seeking is the beginning of the argument, in this case, to attempt to gather more information.

Certainly, the focus of the Sentencing Commission is different, and at the same time it involves the same issue, the issue of concern about racial injustice.

Solicitor General Days mentioned the high cost to the Government of providing information, and we'd suggent that an even higher cost to the criminal justice exists when unfairness is perceived.

Unknown Speaker: You, I take it, don't depend upon Judge Reinhardt's assumption to establish the second prong, the similarly situated but not prosecuted prong.

Am I correct you don't depend on Judge Reinhardt's assumption?

Mr. O'Connor: Justice Souter, you're referring to Judge Reinhardt's statement that we must assume all persons commit all crimes?

Unknown Speaker: That's right.

Mr. O'Connor: I think that that statement was more in the nature of a descriptive statement.

I did not read that--

Unknown Speaker: Well, do you depend on it?

Mr. O'Connor: --as a binding presumption.

Unknown Speaker: Do you depend on it for your argument?

I assumed you didn't.

Mr. O'Connor: No.

Unknown Speaker: All right.

Mr. O'Connor: And in fact I would suggest the Government is depending on the opposite presumption, that only blacks commit the crime, and had they shown that, we might not have succeeded in our request--

Unknown Speaker: Well, the Government at least has some figures, and I'm not sure that you do.

You mentioned a moment ago that you thought, or you believed that whites were committing these crimes.

Why didn't you come forward with an affidavit of your own detailing what it was you knew that was the basis for this belief?

Mr. O'Connor: --Well, as the Court may be aware, I did provide a limited declaration in response to the Government's motion for reconsideration, and I think the district judge did consider the two declarations that we submitted.

Unknown Speaker: That was the reference to the State experience?

Mr. O'Connor: Mr. Reed submitted a declaration laying out his experience in State court, his perceptions of the nature of the defendants that were being prosecuted in State court, which is directly across the street--

Unknown Speaker: Right.

Mr. O'Connor: --from us, and we submitted another declaration regarding some information from a treatment facility.

Unknown Speaker: When you say declaration, Ms. O'Connor, does that suggest the statements were sworn?

Mr. O'Connor: I recall they were signed declarations.

Whether they were sworn under penalty of perjury, I can't recall.

Perhaps not.

I can represent one of them but not for xx.

Unknown Speaker: Ms. O'Connor, specifically what was declared in the statement, in the two statements that you say came up later.

Mr. O'Connor: Mr. Reed laid out a description of his experience in State court.

Again--

Unknown Speaker: Which was--

Mr. O'Connor: --Well, I would suggest to this Court that the district judge in Central District of California--

Unknown Speaker: --Did he say there have been a white... similarly situated whites prosecuted in State court?

Mr. O'Connor: --He did say that whites were prosecuted in State court for crack cocaine violations.

At the time, the definition of similarly situated was somewhat up in the air, and I would suggest remains somewhat up in the air.

Unknown Speaker: He just said whites were prosecuted, but not similarly situated?

Mr. O'Connor: We at the time did not know what similarly situated was, and as I am perhaps not explaining sufficiently, I think that definition continues to evolve, and our point is to require us to present evidence of similarly situated individuals at such an early stage is premature, because we don't know who is similarly situated.

Unknown Speaker: Well, if you don't know that, then you don't know sort of the fundamental structure of your argument.

You have no claim unless there are similarly situated individuals.

Don't you therefore, in order to make a claim, have at least an initial obligation to define a class so that both you can tell, in making your assertion, and the judge can tell in passing on it, what you mean by similarly situated?

Mr. O'Connor: I don't believe any court has ever held that there must be a showing of a similarly situated individual to succeed on a claim of selective prosecution, and certainly the Government concedes that's not true.

Unknown Speaker: Well, if there isn't an understanding of what similarly situated means, how is there even a claim of selective prosecution?

Mr. O'Connor: I would--

Unknown Speaker: It implies selection, and the implication of selection requires some understanding of a class, some of those members are being treated one way, and some of whose members are being treated differently.

How can you make the claim without at least defining your class and hence defining what similarly situated people are?

Mr. O'Connor: --Our position is that selectivity is the issue, not similarly situated individuals, and certainly--

Unknown Speaker: We're not meeting.

We're not engaging here.

Maybe I'm missing some point, but I'm saying that if you claim that there has been selective prosecution... I understand you to be claiming that there has been disparate treatment of individuals who are in all relevant respects alike, and in order to make that claim you have to understand what the class is which is in all respects alike, and you therefore at least have to start with a notion of what similarly situated people might be like.

Isn't that true?

Isn't that what you mean when you say the prosecution has been selective?

Mr. O'Connor: --I think I'm proffering a broader definition, which is that at the initial stage it's clear selectivity has occurred.

In the vast number of criminal cases, very few are brought to... to Federal court.

Unknown Speaker: Well, why is it clear in this case that selectivity has occurred?

You came up... came forward and said there were, what, 24 prosecutions of black individuals for crack and guns.

Mr. O'Connor: That's correct.

Unknown Speaker: What is self-evident about selectivity there?

Mr. O'Connor: What is evident is that based on our experience it was an unusual pattern, a pattern that caused my office concern and then, in turn, caused the district judge concern.

It's not the normal pattern for us to observe.

Unknown Speaker: Well, it may be the point from which you start, but it is not the point at which you have defined a similarly situated class, I would suppose.

Mr. O'Connor: I would agree that it is the point at which to start, and that's where we were.

Unknown Speaker: Was... were the 24 related to each other?

I mean, is there a... were there in the same gangs, any group of them?

Were they in the same housing projects, are they 24 totally disparate... separate individuals, or is there some relationship among subsets of those 24?

Mr. O'Connor: I would not know what the relationship is and, frankly, based on the Government's proffer of different variables over time, we are looking at those aspects also.

Unknown Speaker: Did the 24 include these defendants?

Mr. O'Connor: Yes, I believe these were--

Unknown Speaker: Well, they were all related, and then how many defendants were there?

Mr. O'Connor: --I perhaps am misspeaking on that.

I perhaps am misspeaking.

I would have to look at my chart to see if they were listed in fact.

Nevertheless, what these defendants had in common was their race.

They were charged in the same case.

They are not all similar.

Some of the variables--

Unknown Speaker: They also had in common that they knew each other and they were in the same conspiracy.

I take it that was also a common--

Mr. O'Connor: --I wouldn't suggest that that is true or is proven at this point, Justice Kennedy.

If I may, to sum up, I believe that the special standard proposed by the Solicitor General is far too stringent on a claim of racial selectivity and that, in fact, no special standard is required.

Rather, the court is compelled to do what it did in this case, which is, number 1, to determine, as Justice Souter suggested, there is some evidence that a defense exists, a colorable basis to believe that selective prosecution has occurred which can be defeated by the Government and in this case was not.

The court then reviews the defense and determines whether the evidence requested is material.

The court is also obligated to look at the factors that any court does in a district... in a discovery dispute, namely the access of the parties.

It's clear there are findings, exclusive findings in this case, that the Government had access to the information.

Unknown Speaker: --I suppose that discriminatory prosecution cannot be remedied as discriminatory taxation can, for example, in a Commerce Clause case, by after the fact going out and finding the 24 white people to prosecute.

It's too late, isn't it?

Mr. O'Connor: I'm not certain that I should comment on that, Justice Scalia, but--

Unknown Speaker: Thank you, Ms. O'Connor.

[Laughter]

General Days, you have a minute remaining.

Rebuttal of Drew S. Days, III

Mr. Days, III: Unless the Court has further questions, I have no further comments.

Chief Justice Rehnquist: Very well.

The case is submitted.

Unknown Speaker: The honorable court is now adjourned until tomorrow at ten o'clock.

Attribution:

The OYEZ Project

Featured:

Kyles v. Whitley, Warden - Oral Argument

Fri, 09 Jan 2009 14:49:57 +0000

Case:

Kyles v. Whitley, Warden

Media File:

93-7927_19941107-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of James S. Liebman

Chief Justice Rehnquist: We'll hear argument now in Number 93-7927, Curtis Lee Kyles v. John P. Whitley.

Mr. Liebman.

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

Curtis Lee Kyles is on death row for a robbery-murder he steadfastly claims he did not commit, and that his initial accuser, Beanie Wallace, did commit.

The issue here is whether the jury had a reliable opportunity to assess the evidence on that identity question, notwithstanding the quantity of evidence that the prosecution suppressed.

Both sides agree that the materiality standard of United States v. Bagley controls.

Under that standard, Mr. Kyles' conviction must be overturned if disclosure of the evidence suppressed by the State would have created a reasonable probability of a reasonable doubt in the mind of one or more of the jurors, and a reasonable probability is a probability sufficient to undermine confidence in the outcome.

Although legally narrow, the case is factually complicated, and I'd like to take a couple of minutes, if I could, to give the background.

When Dolores Dye resisted a thief in the parking lot of a Schwegmann's supermarket in New Orleans, the thief shot her once in the face at point blank range, walked to her car, and drove off.

The State's evidence that Kyles was the killer was in four categories.

First were four eye-witness identification of Kyles as the killer, all of them confirmed by an in-court viewing of Kyles standing side-by-side with Beanie Wallace.

Second was the portion of a vinyl roof of a car in a blurry, blown-up photograph of the crime scene which prosecutors argued resembled Kyles' car.

Third was physical evidence that the State claimed that Kyles had possessed but Kyles said he did not possess, mainly the victim's Ford LTD which Beanie Wallace claimed Kyles had sold to him, the victim's purse and personal effects the police found in a large, plastic trash bag outside the Kyles' home, and a gun, the murder weapon, found behind the stove in the Kyles kitchen.

And fourth, then, were physical evidence that Kyles admitted possessing, a 2-inch square Schwegmann's receipt with Kyles' fingerprints on it found in the LTD and 15 cans of dog and cat food found in the Kyles' kitchen, some of which matched the brands that the victim bought.

Kyles then offered the testimony of seven witnesses tending to show that all of the State's evidence was consistent with Kyles' innocence and Beanie Wallace's guilt.

First, one of the eye witnesses admitted she only saw the perpetrator from the side and back and had not identified a photo of Kyles in a photo array, and the other three eye witnesses who had identified Kyles in a photo array admitted that they saw the same picture of Kyles five times before they testified at trial and identified him in court.

Second, Kyles himself testified that you couldn't tell the color, make, model, or any attributes of the car in the blurry, blown-up photograph and, in any event, it wasn't his car.

Third, defense witnesses testified that they saw Beanie driving the victim's car within an hour of the killing and furtively changing its license plates, that Beanie had the opportunity to plant the purse and gun when he was at the Kyles' home and alone in the Kyles' kitchen on the Sunday prior to the police search on Monday, and then, as to the sales receipt, Kyles testified to hitching a ride with Beanie in the LTD to buy cigarettes and transmission fluid, and as to the pet food, his witnesses testified that the Kyles family kept a cat and a dog, and a police photograph was introduced showing a bottle of Hartz dog shampoo in a closet in the Kyles' home.

As I will shortly show in detail, there are four separate reasons why there would have been a reasonable probability of a reasonable doubt if the State had disclosed the evidence it suppressed rather than suppressing and misrepresenting it.

First are the suppressed--

Unknown Speaker: Before you get onto that, was Beanie called at trial?

Mr. Liebman: --He was not called to testify at trial.

He was present in that courtroom, but he was not called to testify.

Unknown Speaker: But you assert that the defendant's main hope for acquittal was that Beanie did it, yet the defense did not call Beanie?

Mr. Liebman: That is true, Your Honor, and that is the subject of the ineffective-assistance portion of this claim which has been addressed in the lower courts and is part of the cert petition here, though we did not address in our brief, and that is--

Unknown Speaker: --purposes we have to assume that that was not incompetent assistance of counsel, I assume?

Mr. Liebman: --Well, on the Brady claim... that's right.

On the Brady claim, we... what we assume is that had the State disclosed the suppressed evidence, the use of that evidence would be the use that competent counsel would make of it, but we assume that it would be the effect of that evidence in the trial.

The court below found that a strategically reasonable attorney would not call Beanie Wallace no matter what.

Now, on the ineffective assistance portion of our claim, we disagreed with that, but it is a matter of the determination of the court below, and in fact a number of courts in the State and Federal system have said in this case any attorney wouldn't want to get anywhere near Beanie.

You'd want to just present the theory that he did it and let the jury achieve a reasonable doubt on that basis.

I want to talk about the suppressed eye-witness statements.

As their photos reveal, and I have brought copies, Kyles and Beanie were facially similar in bone structure, profile, coloring.

Stood side-by-side, however, the two men clearly and distinctly did not resemble each other.

Kyles was a maypole, 6-foot tall, 125 pounds, Beanie Wallace a fire plug, 5-foot 5-inches tall, 140 pounds.

The controlling issue, then, was whether the witnesses saw the killer's build as the killer attacked the victim outside her car, or whether they only saw the victim's... the killer's face when he fled in the victim's car, and on that issue, contrary to the testimony at trial, the suppressed statements show that only one witness got a good look at the killer's height, size, and build, and that witness in a suppressed statement exactly described fire plug Beanie Wallace, not maypole Curtis Kyles.

Second, based on the chance discovery of a portion of a car's vinyl roof in the corner of a blown-up photo, the district attorney argued that Kyles' car was parked near the victim... near the crime scene moments after the killer fled in the victim's car.

Confidence in a verdict premised on this self-described key element... the prosecutor called it a key element of his case... is undermined by the State suppression of a police memorandum showing that, if anything, the police knew exactly the opposite of what the prosecution argued, namely that the police did not leave matters to chance, that they systematically listed the license numbers of

"vehicles parked in the Schwegmann's parking lots around Schwegmann's on September 20, 1984. "

and it showed that the petitioner's car was not on the list.

The list was suppressed.

Unknown Speaker: I thought the rebuttal to that was that they didn't list all of the cars.

Is that--

Mr. Liebman: Your Honor--

Unknown Speaker: --Is there a factual dispute about that?

Mr. Liebman: --There is a factual dispute about that, but I don't think it's important.

The memorandum itself disputes the factual finding.

The factual statement was that they only searched one part of one lot.

The memorandum itself said, here are the cars parked in the Schwegmann's lots, plural, at the particular time.

It was done by three detectives, and they had 19 cars, and the thought that there were too many cars that three detectives couldn't get more than 6 each is a little bit hard to understand.

Nonetheless, it doesn't matter, because the testimony was that the part of the lot that they did search was in the immediate area of the crime scene, and the picture itself, the blown-up photograph itself, shows the very edge of the crime scene, because there's the police cruiser right there on the edge of the crime scene, and you can see that the only thing that separates the crime scene from the blurry photograph that's obscured is one row of parked cars, so it's in essence the second row of parked cars over.

They took the list down at 9:15 after the store had closed.

One can predict that this car shown in the photograph would have been probably the closest car.

Certainly it would have been one of the closest cars to the crime scene.

So the finding was that they only looked in the immediate area, but the picture shows that the car in question was in the immediate area, so I don't think it really matters what we do with that factual issue.

Third, had the State disclosed only its evidence about Beanie Wallace, there is also a reasonable probability of a reasonable doubt, for the jury would have seen that most everything the police witnesses testified and that the prosecutors argued about Beanie Wallace was false.

It also would have shown that most everything the otherwise not entirely believable defense witnesses said about Beanie was true, and most importantly, that the police had substantial, affirmative evidence in their files that Beanie Wallace was the killer.

Finally, a reasonable probability of a reasonable doubt arises from the suppressed evidence, notwithstanding the only two untainted pieces of evidence, the receipt and the pet food.

Now for the details, beginning with the eye-witness identifications, and I'm going to focus here, as did the majority below, on the three identifications that seemed most reliable to the court below, because they were predicated on a photo array.

Although similar of face, as I said, as the photographs reveal, maypole Curtis Kyles and fire plug Beanie Wallace were unmistakably different in build, so the State's case depended on the witnesses' opportunity to see the killer before he got in the victim's car.

At trial, the testimony claimed that the opportunity was present for the witnesses, and the prosecutor then bragged in summation that

"all of them had an excellent opportunity to view the homicide and the person who did it. "

"Nobody changed his story. "

"Nobody was trapped in a lie. "

Unknown Speaker: Yes, but all we have for it is your word that the two are not recognizable one from the other except when you see them both standing up.

I mean, is that--

Mr. Liebman: No.

Unknown Speaker: --conceded by everybody?

Mr. Liebman: No, that's not right, Your Honor.

First of all, you have the photographs, and of course--

Unknown Speaker: Are they part of the record?

Mr. Liebman: --Yes, the photographs are a part of the record, and I'd be glad to give you the exhibit numbers, if you'd like the... Kyles is S-45, trial exhibit, and D-19 in the postconviction, and then Beanie's mug shot has two numbers at trial, either D-4 or S-44.

But it's not only that, every one of the courts below made a determination.

They all tell you, we looked at the photographs and this is what we saw, and you will see at the trial court, Fifth Circuit, the district court, and even the State's brief in this court, everybody says they don't look alike, because they are different in physical build.

One is much thinner and much taller, one is... and it all goes to height, weight, and build in each of course.

There's only one judge in this record that said, I'm going to just look at the two faces and see what they look like, and that's Judge King below, and in footnote 55 at the Joint Appendix, 120 through 21, she says,

"I looked at the faces alone and they resemble each other. "

In addition, there is trial testimony from... it's uncontradicted.

The only trial testimony about how the two people looked was from defense witnesses, and they testified, and this is quoting the Fifth Circuit.

They said,

"Kyles and Beanie resembled one another in profile and from the side, and had similar complexions. "

That's at page 55, quoted in the... or, paraphrasing the testimony in the... that was at trial, but it's in the Fifth Circuit opinion.

Unknown Speaker: There were witnesses who said they didn't look alike?

Mr. Liebman: There were witnesses who... no, there were no witnesses who said they didn't look alike.

The eye witnesses looked at them side by side and said it's him and it's not him, and I'm sure, but they didn't characterize what it was that led them to that, but of course, if you looked at them you couldn't possibly think that they could be the same person, because one was so much taller than the other.

But what the suppressed statements show is that the witnesses, only one witness did have the excellent opportunity that the prosecutor claimed.

That witness described Beanie Wallace to the T.

The other witnesses did change their stories, and one of them could have been trapped in a lie if the statement had been released.

And let me start with Isaac Smallwood.

On page 35 of our blue brief we have laid out his testimony.

He said that he got a good opportunity to see the assailant's build as he watched the assailant shoot the victim, walk, then, he said nonchalantly to the victim's car, get in the car, and drive away.

This testimony was very important to Smallwood, because he testified over and over again that once the killer was in the car, he could only see the side of the killer's face and nothing else, but as the State now accepts in his brief, Smallwood's testimony was false.

Unknown Speaker: But isn't it also the case... isn't it also the case that you were in, or the trial counsel was in just as good a position to go after Smallwood at the second trial as he would have been if the disclosure had been made?

Mr. Liebman: No, that's not true.

Unknown Speaker: Why not?

Mr. Liebman: Because at the first... you're referring, I assume, to the first trial, the testimony at the first trial to which the State refers in its brief, and the difference--

Unknown Speaker: The difference between... that's right, yes.

Mr. Liebman: --There was no difference on the critical point.

What Smallwood said at the first trial... and the State only gives you page 51 of the transcript.

A lot of it's on page 52.

What he says was, I heard the shot and I turned around, and I watched the man walk from his car, walk from the crime scene, the murder scene, and get into his car, and he was asked, well, how did he walk?

Well, he walked nonchalantly.

So both at the first trial and at the second trial and, in fact, in the suppression hearing, Smallwood said, I saw the man outside the car.

I got a good look at him outside the car.

The only thing that was different was whether he actually saw the shooting, but of course nobody's disagreeing... there's no issue about whether there's a shooting and somebody got killed.

The only issue is whether they got a chance to see the man before he got in the car.

In addition, Justice Souter, trial counsel did attempt to impeach Smallwood on that minor discrepancy, did he see him from the beginning or only part of the way, and he did it by asking Henry Williams, who was Smallwood's partner, standing right next to him, isn't it true that Smallwood didn't turn around until after the shot was fired, and his partner says no, that's not true, so there was no way to impeach that, because you didn't have the statements which would have permitted that, but the critical point was whether they saw him out of the car.

The same thing is really true, and in Smallwood's testimony he says--

Unknown Speaker: Well, I... just to follow up on that one point, why is it that the first trial testimony was not wholly sufficient for the impeachment purposes without the statement?

Mr. Liebman: --Because the first trial said that Smallwood... both trials, his testimony at both trials was that he saw the assailant outside the car, standing up, walking, clear shot at him.

I could see... he could see his physique.

The question was, could you see the characteristic on which Beanie and Kyles differ?

One's tall and thin, one's short and fat.

They have a similar face.

And he says, yes.

In both trials he said yes, I saw him walking from the crime scene to the car.

The only difference is whether he actually also saw the shooting or not, but that did not undermine his capacity, his opportunity to see the difference between the two that makes the two absolutely... you couldn't mistake them, but you could mistake them in face and that's--

Unknown Speaker: But you haven't explained... I'm not sure... is that also... is that different from the suppressed statement?

Mr. Liebman: --Yes, I'm sorry.

In the suppressed statement, and I'm coming to that, what Smallwood says is, I heard a loud pop.

When I looked around, I saw a lady lying on the ground and there was a red car coming towards me.

Question: When you heard the shot and looked, was the black man standing near her?

No, he was already in the car, coming toward me.

So he test... his statement, his contemporaneous statement was that he never saw the man outside the car.

Unknown Speaker: He must have taken a long time to turn around after the pop.

Mr. Liebman: Well, what--

Unknown Speaker: There's a gunshot, and he turns around, and the fellow who did the gunshot at close range had already gone to the car, gotten in the car, and is driving by?

Mr. Liebman: --You might have... Your Honor, he doesn't say... he says he heard the gunshot, and then he's trying to--

Unknown Speaker: --he sort of stood there and--

Mr. Liebman: --The police officer asked him exactly that question, Your Honor, in the... it's at Joint Appendix 189 through '90.

The police officer said, well, when you heard the shot and looked, was the black man standing near her?

He wanted to know, tell me what you saw, and the answer was no, he was already in the car coming towards me, and he'd already said earlier that that was the case.

There's a lot... you have to understand, he was actually--

Unknown Speaker: --It doesn't make any sense, is all I'm saying.

Mr. Liebman: --Well, let me explain.

He was standing at a construction site.

Essentially they were trying to get cars going past the construction site.

There's a lot happening.

He hears a gunshot.

You know, in traffic and things he may not immediately know exactly what it is, and what he said in the earlier trial was that he didn't turn around until his friend told him, hey, look, something's going on over there, and that's when he turned around, and that's when he saw the person in the car.

But in any event, he was very clear... the police explored exactly this point with him, and he said, no, no, no, I just didn't see him outside the car, only in the car.

Territo's testimony, the second, is the same, is similar in that he testified at trial that his only good look at the assailant was when the killer pulled the victim's car around Territo's truck, stopped next to Territo's car, they exchanged looks, and then the car went on and made a right turn.

But Territo's contemporaneous statement was that the light turned green and the killer pulled continuously around him and made the right turn, and that while that was happening, Territo was focusing on getting the license plate number, which he did.

So this made the critical witness Henry Williams, who was, as the district attorney described him as his best witness.

He told the jury, this is my best witness, and indeed, by all accounts Williams did get the best look at the robbery and shooting, and a few hours later he described the man he saw commit it, and this is the description he gave at page 197 of the Joint Appendix a black male, about 19 or 20 years old, about 5 foot 4 or 5 foot 5 inches, 140 to 150 pounds, medium build, dark complexion, and plaited hair, short.

Williams thus gave an identical description of Beanie Wallace.

On that very same day that Williams gave this statement, the police got information and reflected it in a police report that said that Beanie Wallace had committed another murder, and in it they gave Beanie Wallace's height and weight, and it was 5 foot 5 inches, 140 pounds, same day.

The description was not of... and also 21 years old, which is much closer than Kyles, who was a 25-year-old man at the time, 6-foot tall, 125 pounds.

So... and the materiality of Williams' description of a short, stocky killer, like Beanie Wallace, and not a tall man like Curtis Kyles, a tall, thin man, is compounded by the length the State went to conceal it.

Because at a pretrial suppression hearing to identify, the defense counsel asked the chief detective, he said, I know you're not going to turn over the statements to me, but I want to know, tell me

"in any single point, were there discrepancies in the physical descriptions given of the assailant. "

and chief detective Dillman said that the only discrepancy besides a few years in age was 3 inches in height, ranging, he said, from 5 foot 8 inches to just under 6 feet, and beyond that he said explicitly, because defense counsel kept pushing, he said there were no other discrepancies.

Confidence in the outcome is undermined, whatever might have been the case here had the State offered the identifications and then turned over the witnesses for fair cross-examination, on the basis of the eye-witness statements.

They instead decided to conceal those statements, which included clear evidence that somebody else had committed it, and to present demonstrably false testimony by Smallwood, and that simply cannot instill confidence in the outcome but only misgivings.

Let me move--

Unknown Speaker: It's not necessarily false evidence by Smallwood.

You don't... one of the two was in error.

It's either the later or the earlier.

Mr. Liebman: --Your Honor, the reason I am prepared to draw that conclusion, although that's possible, is that State has acknowledged in its brief that it was false, and it seems to me that if the State can draw that inference, I can draw it, but the most important thing, obviously, is that a juror could draw the inference that the contemporaneous statement is the better description than one several months later.

I'd like to move now to the evidence that Beanie Wallace pointed the police to that seemed to implicate Kyles.

In theory, defense witnesses explained all that witnesses by saying that it was Beanie who had the car at a time when Beanie said Kyles had it, that Beanie had furtively changed the license plates on it, and that Beanie was in a position to plant the purse and the gun when he visited the Kyles' home and was seen alone in the kitchen.

The problem, of course, was that the State impeached all of the defense witnesses by showing that all of them were friends of the defendant and two of them had criminal records, and then the State's witnesses resolutely refused to corroborate the defense claims about Beanie, and in cross-examination the prosecutors ridiculed those claims and valorized Beanie Wallace.

According to Detective Dillman in testimony, or the prosecutors in argument, there was no evidence that Beanie had a criminal record.

That's a quote from the prosecutor.

Beanie had not informed for money in the past, they said, and he was a good citizen informant with the courage to call the police and leave his name.

There was no evidence, the police said, that Beanie changed the license plate on the LTD. It was not Beanie who told the police to search the garbage for themselves but, rather, the police who thought it up themselves and, they said, the police did not direct Beanie to go to the Kyles' home on Sunday, nor, so far as they knew, did he go to the home on Sunday, nor was it logical, argued the prosecutor in closing, for Beanie to go to a house that he thought was about to be raided by the police.

Every one of those statements by the prosecutor or the chief detective was false in ways in which the testimony of seemingly impeached defense witnesses turned out to be true, and so the jury was dispossessed not only of evidence that impeached the investigation in the case, the police investigation in the case, but also affirmatively showed that Curtis Kyles did not commit the killing but that Wallace did.

And if I can give just a couple of examples of this, the tape reveals that... and the detectives testified in postconviction, that the police did not think up the garbage search, but that Beanie Wallace told them to go search the garbage.

That the police were taking their cues from the likes of Wallace might itself have created doubts about the investigation, given Wallace's character, his prior record, the fact that he informed for money and all of that, he was a known murderer, admitted murderer.

But the evidence is much more important because it incriminates Beanie at the same time as it impeaches the investigation for, inexplicably, Beanie somehow knew that only the purse and the bags and some personal effects... he said exactly that.

That's what's going to be in the garbage bag, but the gun won't be there.

The eight bags of discarded groceries, they won't be... he knew exactly what was going to be in there, and he knew it 24 hours before the garbage bag even went out.

Beanie's handler, Detective Miller, said, he admitted in postconviction that he thought at the time that Beanie may have planted the incriminating evidence in the garbage.

That the detective could have thought that I think suggests that a juror could have thought that and formed a reasonable doubt on that basis.

In addition, Prosecutor Strider recorded his interview with Beanie in between the two trials.

In that, Beanie admitted that he did go to the Kyles' home on Sunday, he admittedly was in the Kyles home... this is all on page 262 of the Joint Appendix.

He admitted he was in the Kyles home and in the kitchen by himself, and he admittedly went there not only with the knowledge but at the behest of the police.

They asked him, they called him up, as page 262 reveals, and said, what about the gun, and he said, I'll find out, and he went over to the Kyles home, he left, he called Detective Miller, he went back to the Kyles home, he was there for 2 hours, in the kitchen alone, he leaves, and he meets Detective Miller by prearrangement on a corner, and they talk about the gun.

Detective Miller testifies in postconviction, we learned where the gun was from Beanie.

So what you have here is evidence that Beanie knew that he could get in the house, put the gun wherever he wanted, because the police were waiting for him to come out with information about the gun before he was... they were going to move in.

Finally, we have three statements by Beanie which are totally inconsistent with each other in every particular, and what they reveal is a pattern that as each new fact came out that the police knew something, Beanie changed his story either to pin something more on Kyles or to blame a witness against Beanie with having been implicated, though that person had never been implicated before.

Unknown Speaker: Mr. Liebman--

Mr. Liebman: Yes.

Unknown Speaker: --before you finish that, I ask you just to clarify two legal points.

I take it from your argument you are pressing only the Brady point and not the Strickland point.

Everything in your argument seems to indicate that, is that correct?

Mr. Liebman: That is correct, Your Honor, because the Brady claim encompasses everything that was lost to the jury by the ineffectiveness claim, but then so much more, the narrow ground for the court, is the Brady claim, because the prejudice analysis is the same.

Unknown Speaker: My other question is there's a peculiar reference in the Fifth Circuit opinion, two references to Brecht, and you started out by saying Bagley is the standard.

Is it your position that Bagley is the standard and Brecht shouldn't enter into this case at all?

Mr. Liebman: Brecht would enter into the case only if there were an error, in which case it might be analyzed as a... on the harmless error, but the Fifth Circuit's second reference to Brecht says that since we didn't find an error, we don't have to get to the Brecht standard.

My position would be that the Bagley standard is sufficiently strong that once you've met the Bagley standard you could also meet the Brecht standard, but that's not really an issue before the Court.

Traditionally, the Court lets the lower courts apply harmless error analysis in the first instance, once there's been an error.

The issue before the Court is whether there was an error, not whether, if there was, something might follow from that.

If I may--

Unknown Speaker: Mr. Liebman, could you comment on the dog food evidence?

Mr. Liebman: --Yes, I'd be glad to do that, Justice Stevens.

There are really three things that the State might have wanted to prove with the dog food.

The first was, was it strange that Kyles would have pet food, and the answer to that is on the theory of both parties at trial Kyles' family had an interest in dog food.

The Kyles family said they had cats and dogs, and had four witnesses to say it, but the State's theory was that they took eight bags of groceries and threw out everything but the dog and cat food, and of course their photograph showed the Hartz flea shampoo, so of course there's really no question both sides were claiming that there was a need for dog food in this family.

There was an interest in having dog food in this family.

So then the second question becomes, is there something about the brands of dog food that is inculpatory, but there were three brands, actually four brands in interest.

There were two matching brands, and the two matching brands that she bought and that they had were the standard brands, Kal Kan, 9-Lives.

She, however, bought a third brand, and expensive brand for a finicky cat, but the third brand that the Kyles family had was a cheap brand that she... there was no evidence that she would ever buy.

So there were a lot of families in New Orleans on that day who would have Kal Kan and 9-Lives dog and cat food in their house, so maybe it's some evidence, but it certainly doesn't overcome the rest of the defects caused by the suppression.

Finally is Kyles' testimony.

Unknown Speaker: But what was withheld that would have destroyed that was simply the photograph of--

Mr. Liebman: No, Your Honor, the photograph was presented at trial.

Our point about this evidence is, it's the only untainted evidence--

Unknown Speaker: --Oh, I see.

Mr. Liebman: --and you can't build a case on that.

Unknown Speaker: I see.

I see.

Mr. Liebman: Finally is Curtis Kyles' testimony about the food, and all I can say on that, Your Honor, is that if you look at the Schwegmann's advertising manager, he confirmed every specific of what Curtis Kyles said.

Kyles said, I went there, there was a little white shelf tag, the prices were two-for-something, three-for-something, I thought it was on sale, and I bought it, and what the manager said was, small white shelf tag, two-for-something, three-for-something, it wasn't on sale, but we used the multiple price because it made customers think it was cheaper than it otherwise would.

So the only discrepancy is that the manager said we used a sales gimmick, Kyles in a sense said I fell for the sales gimmick, but otherwise it's absolutely... and Kyles is a man of dull normal intelligence in this record, so it makes clear that the testimony was quite the same.

I'm going to reserve the remainder.

Unknown Speaker: Very well, Mr. Liebman.

Mr. Peebles, we'll hear from you.

Argument of Jack Peebles

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

The issues upon which you granted certiorari include the question of ineffectiveness of representation as well as misconduct and nondisclosed evidence, but the petitioner's brief did not go into the question of Strickland, so I will... I'll not argue that point unless the Court has some questions on it.

The principal issue in this case is whether nondisclosed information by the police in this case would have created a reasonable probability of a different verdict had it been disclosed.

The State suggests as strongly as we can that it would not.

The police in this case were in good faith, the prosecutors were in good faith, they presented an extremely strong case of evidence, and the defendant was duly convicted.

Both the U.S. district court below and the Fifth Circuit held that the evidence in this case was overwhelming, and they both analyzed the very items that counsel has been talking about here, and I would like to go into those myself and give you the State's perspective as to this same evidence, again on the thesis that Bagley is essentially the criterion we're using, and the law that we're working under.

Unknown Speaker: Mr. Peebles, before you get into that, is it common ground that there was a duty to disclose the suppressed statements and the information that Mr. Liebman talked about?

Mr. Peebles: No, Your Honor.

In Louisiana we do not agree that the statements, which were not disclosed, were exculpatory.

In Louisiana, the--

Unknown Speaker: No, but... excuse me just a minute.

If one assumes, just... I know you disagree with it, but one assumes that they contained impeaching material that might have helped the other side's case, would you agree there would have been a duty to disclose?

Mr. Peebles: --No, Your Honor.

Unknown Speaker: You would not.

Mr. Peebles: As we interpret Bagley, the mere fact that evidence might be favorable, or potentially favorable to the other side, does not create a duty to disclose.

The constitutional duty to disclose only arises when the failure to turn over that evidence would create an unfair trial, or would undermine confidence in the outcome of the decision, and one of the footnotes in Bagley, Justice Blackmun, I believe, pointed out that if you required a prosecutor to turn over anything that's potentially favorable, then you create an impossible situation for prosecutors in trying to make that decision.

And in fact I believe that in Bagley they expressly rejected the view taken by two of the... by the dissent in that case which would have created an obligation on the part of the State to turn over anything that was potentially exculpatory.

Unknown Speaker: Well, do you agree that anything that would amount to substantial impeaching evidence in relation to evidence the State had put in would be subject to disclosure?

Mr. Peebles: I think it should be... if it was substantially impeaching, I think it should be turned over, Your Honor, as a matter of ethical obligation, and I believe that in this case, had the prosecutors believed that these statements contained substantial impeachment material, they would have turned them over, but whether or not they acted correctly ethically in making their decision not to turn these statements over, we submit that the issue before the Court is whether the Constitution was violated by this action.

Unknown Speaker: When you say, you think they were under an ethical obligation of under some... you do not say that is the same thing as what the Constitution requires?

Mr. Peebles: That's correct, Your Honor.

That is the State's position.

Unknown Speaker: So that it is not your view that substantial impeaching testimony would be subject to the Brady obligation?

Mr. Peebles: It would not be unless the failure to disclose that information would create a reasonable probability that you might have a different outcome in either the penalty hearing or the guilt--

Unknown Speaker: Well, you... I take it from the way you answer that you believe this judgment should be made on an item-by-item basis.

Therefore, for example, if the testimony impeaching Smallwood would not by itself have risen to the standard of undermining the verdict, there would be no obligation to turn that over.

Am I correct that you do it on an item-by-item basis?

Mr. Peebles: --Your Honor, when the prosecutor is making these decisions, it unfortunately is usually on an item-by-item basis, but when a reviewing court--

Unknown Speaker: Your view is that that is the standard that we should apply?

Mr. Peebles: --No.

No, Your Honor.

Unknown Speaker: Okay.

Mr. Peebles: The standard for the reviewing court, we submit, is to consider all of the trial and all of the evidence which was presented at trial, and the nondisclosed evidence, and consider the evidence cumulatively, and that's what the Fifth Circuit did, and they said that.

Unknown Speaker: That standard does not give much guidance to the prosecutor as to what its constitutional obligation is--

Mr. Peebles: It certainly does not.

Unknown Speaker: --under Brady, it seems to me.

Mr. Peebles: It certainly does not, Your Honor.

It makes it difficult for a prosecutor to know, in the perspective that he is faced with when he goes to trial, as to exactly what might become important later on, and that's why we submit that a prosecutor must be given a certain amount of leeway in making a judgment call of this type.

To come back much, much later and say, well, in view of the evidence that was presented, you made the wrong decision, I submit that it's not proper to really call his judgment unethical unless there's a clear showing that he used very bad judgment and that he did withhold evidence that should have been disclosed.

Unknown Speaker: Well, I'm... I want to get back to this point about ethics.

We're not concerned directly here with ethics, we're concerned with the Brady obligation, and do I understand you to agree that the appropriate test for the violation of Brady is a test which considers the cumulative effect of all the evidence claimed to have been withheld in relation to the cumulative effect of all the evidence that in fact did go in?

Mr. Peebles: Yes, Your Honor.

Unknown Speaker: Okay.

Mr. Peebles: That's my position.

Unknown Speaker: May I ask one other preliminary question?

Am I correct in understanding that some of the... call it suppressed material, undisclosed materials, whatever term you want to use, was known to the police but not actually disclosed to the prosecutor?

Mr. Peebles: Yes, that's correct, Your Honor.

Unknown Speaker: Now, is... was there a duty on the part of the police to disclose to the prosecutor... how do we measure what the prosecutor would have done if he'd--

Mr. Peebles: Yes.

Unknown Speaker: --known about it, or are the police allowed to withhold sort of in a separate... is there a separate standard for that?

Mr. Peebles: Your Honor, I don't think the police are entitled to a separate standard.

That's the old problem we have in police enforcement.

Here we have a case that was tried less than 3 months after the murder occurred.

The prosecutor dealt primarily with the chief homicide detective and his assistant, and the police were doing all kinds of investigations, and they didn't actually deliver the homicide report to the prosecutors until 2 days after the trial.

Now--

Unknown Speaker: And didn't one of the prosecutors testify that had some of this material been presented to him, he would have turned it over?

Mr. Peebles: --He would have turned it over.

Unknown Speaker: Yes.

Mr. Peebles: Yes, Your Honor.

I don't think there's any question but that the defense would have used some of this material, and I don't think there's any question but that had the prosecutor known about some of this material, they would have turned it over simply to avoid the kind of problem that they actually ran into in this case, but that had to do, we submit, with the ethics of the prosecutor at that time, which we're prepared to defend in this case.

Unknown Speaker: Well, take a specific example.

What about the Smallwood statement that was inconsistent--

Mr. Peebles: Yes.

Unknown Speaker: --with an important part of the trial.

Mr. Peebles: Yes, Your Honor.

Unknown Speaker: Was there a duty to disclose that?

Mr. Peebles: The... it should have been disclosed, in my opinion--

Unknown Speaker: Was there a constitutional duty to disclose that?

Mr. Peebles: --There was a... no.

Unknown Speaker: No.

Mr. Peebles: Not under the context of this case.

Unknown Speaker: Mr. Peebles, I--

Mr. Peebles: If I may elaborate... I'm sorry.

Unknown Speaker: --I don't understand the test you're giving us.

I can understand using a cumulative test after there has been an established violation of Brady.

You look at each... not just each single piece of evidence that should have been turned over one by one, but you look at all of them and see whether that would have made a difference.

But you're not just urging that, you're saying that there isn't even a violation until you consider all of the evidence cumulatively.

Mr. Peebles: As we appreciate the Bagley test, Your Honor, that is the rule.

Five justices of the Court, as we appreciate--

Unknown Speaker: So you can never say that any single piece of evidence has to be turned over.

Mr. Peebles: --Yes.

I'm sure there are single pieces of evidence which, by themselves, could be of sufficient importance--

Unknown Speaker: Let me put it the other way.

You can never say that any single piece of evidence didn't have to be turned over.

Mr. Peebles: --A prosecutor might have a duty to disclose it, but I don't think it would create a constitutional violation.

Unknown Speaker: He would not know before the fact.

You can never say, before the fact, I clearly have no obligation to turn this over, because it all depends... whether you do or do not depends upon whether, at the end of the trial, that piece of evidence plus all the other ones that might help a little bit here, a little bit there, whether they all together would have made a difference.

If so, then retroactively, you had an obligation to turn it over.

Mr. Peebles: I think that's what Bagley says.

Unknown Speaker: That's crazy, isn't it?

Mr. Peebles: Well, I think that's what Bagley says, Your Honor.

Unknown Speaker: I don't.

Mr. Peebles: I submit--

Unknown Speaker: Wasn't Bagley concerned, in that respect, simply with the issue of substantially undermining the verdict, and wasn't that the sense in which Bagley was getting into cumulativeness?

Mr. Peebles: --Yes.

Bagley didn't really speak to the issue of the cumulative effect of the evidence.

We would suggest that the cumulative effect of the evidence is that which is properly considered would come from the fact that whether due process is violated depends upon whether the defendant received a fair trial, and the only way you can determine whether he received a fair trial on review is to look at all of the evidence.

Unknown Speaker: So on a Brady proceeding, where the prosecution denies it has to turn something over, the trial court does make an evidence-by-evidence ruling, as to whether or not each bit of evidence is inculpatory or exculpatory?

Mr. Peebles: Yes.

It usually doesn't come up in the trial context, Your Honor, because if it's not disclosed, it's usually not revealed until later, but the reviewing court judge, if it gets pointed out to them before the appeal--

Unknown Speaker: But the standards the prosecutors have to use is on an evidence-by-evidence--

Mr. Peebles: --Yes, case--

Unknown Speaker: --standard?

Mr. Peebles: --evidence... that's the only one we can use, Your Honor, because we don't know what the evidence is going to be--

Unknown Speaker: Precisely.

Mr. Peebles: --until after the case is over, and it's so much easier to look at a case after it's over, especially long after it's over, than it is at the time.

In this case, for instance, there is just no question, I submit from a reading of all of the transcripts, that these prosecutors did a conscientious job, and they never considered Beanie to be a suspect in this case, and they never considered these statements to present a substantial conflict insofar as the evidence that they presented was concerned.

If I may go into that briefly, unless the Court had other preliminary--

Unknown Speaker: May I just ask one more preliminary question, and I thought it was clear, but maybe it isn't.

What the police knew and what the prosecutors knew were different things in relation to some of these items as evidence, as you have mentioned.

Mr. Peebles: --Yes, Your Honor.

Unknown Speaker: Isn't the State held to a disclosure standard based on what all State officers at the time knew?

Mr. Peebles: The State is, Your Honor.

Unknown Speaker: Yes.

That's what I--

Mr. Peebles: No question about that.

We're not trying to differentiate between them.

Unknown Speaker: --So there might well be a Brady violation, even though there was no... as you were saying earlier, there was no unethical conduct on the part of a given prosecutor.

Mr. Peebles: If by a Brady violation you mean the obligation to turn over anything that is of potential value to the defendant, we... our argument is that if you want to define the Brady violation that way, that's fine.

But from the standpoint of determining whether the denial or refusal to turn over this information is a violation of the defendant's constitutional rights, the criterion set up for doing that in Bagley is to look at all of the evidence, determine whether or not the nondisclosure of this evidence created a reasonable probability that, had the evidence been disclosed, you would have had a different result.

That's the test, we submit.

Unknown Speaker: No, but my only point was whatever the test is, there could be a Brady violation and still not be any unethical conduct on the part of a prosecutor if he did not know--

Mr. Peebles: If it was inadvertent--

Unknown Speaker: --That's right.

Mr. Peebles: --that's correct, and I think that's probably what happened in this case.

The prosecutors were never aware of the existence of the tape that was made of Beanie in this case by the police.

The prosecutors were never aware of the printout of the license plates that occurred in this case.

They so testified at the trial.

And in fact this printout was never in the DA's file.

It was located 4 years after the trial was over in a police department file, and I'm sure the reason it remained in the police department file was, when they saw that it was a printout which did not include the defendant's car, and they did not feel that it would assist in the prosecution, they just left it there.

Unknown Speaker: How was it discovered 4 years afterwards?

Mr. Peebles: On postconviction relief, the entire DA's file and the police files were made available to counsel for the petitioner.

Unknown Speaker: Was that, what, by court order of the State court?

Mr. Peebles: I don't recall whether there was a court order, but we did it voluntarily, I do know that.

There was no... there was no attempt to withhold any of this information pertaining to the printout or any other aspect of this case.

Unknown Speaker: Well, isn't it rather clear that if the printout had been available to the prosecutor, that the prosecutor could not have made the argument about the picture, which was right near to the scene, that he did make?

Mr. Peebles: No, Your Honor, I submit that it's not clear.

The... Detective Miller at the postconviction hearings testified that the printout represented license plates from vehicles in the immediate area.

Unknown Speaker: Right, and the picture was also the immediate vicinity, wasn't it?

Mr. Peebles: I submit that the picture represented a car that was not in the immediate area, Your Honor.

You can look at the picture and perhaps make your own mind up about that.

Unknown Speaker: Your opponent just misrepresented the record to us, then.

Mr. Peebles: It's a... it's a question of interpretation of the evidence, the interpretation of the pictures and that, but that picture of that car was not a major part of the State's case.

This case... the problem with this case from our perspective is--

Unknown Speaker: It was part of the State's affirmative case, though, wasn't it?

Mr. Peebles: --It was.

It was, but from our perspective, we have a tremendously overwhelming case of eye-witness testimony here, plus additional hard, factual, tangible evidence, and the other side is attempting to get the Court to look at what were really very minor parts--

Unknown Speaker: How many of the eye witnesses--

Mr. Peebles: --of this trial.

Unknown Speaker: --were able to identify the height of the perpetrator?

Mr. Peebles: They all gave opinions, Your Honor, regarding the height of the perpetrator, as I recall.

Robert Territo said that he was close to 6 feet, Henry Williams said he was 5-4 to 5-5, Willie Jones, who tentatively identified the perpetrator, said he was about 5-9, and Lionel Plick, who was another witness who did not testify, said he was about 5-10.

There is no hard evidence in the record comparing the heights of these two people, Beanie and the defendant.

Now, in the statement that was taped, they asked Beanie to describe Kyles and he said, he's about my height, and the officer then said well, it appears to be about 6 feet tall, but if you look at the photographs, and I think it's pretty clear and the Fifth Circuit commented on this, Beanie appears to be taller than Kyles.

I'm sorry, Kyles appears to be taller than Beanie, their complexions are different, and their facial structure is quite different.

But all of that simply goes to the question of how well each of these people could see this perpetrator, and the fact is that in this case the perpetrator had seven people look at him, or at least six people look at him, when he caused the victim to scream.

Two of these people were in automobiles right close by on a road right next to the parking lot, three people were working on the parking lot, and two people were standing at a bus stop some distance away.

Now, the two people standing at the bus stop were about 200 feet away, and they could see the actions of the person, give a general description of him, but they could not identify... could not identify Curtis Kyles as the perpetrator.

Now, the others, however, two people in the cars, were... had occasion to be very close to the perpetrator, and the three people working--

Unknown Speaker: You're talking about just based on their statements, not on the trial testimony?

Mr. Peebles: --The trial testimony, Your Honor.

Unknown Speaker: The trial... seven eye witnesses testified--

Mr. Peebles: No, no.

No, no.

I'm basing the... of the four people who testified at trial, both their statements--

Unknown Speaker: --But there were--

Mr. Peebles: --three of those gave statements.

Unknown Speaker: --When you refer to seven, it was seven--

Mr. Peebles: Their statements.

Unknown Speaker: --statements given to the police.

Mr. Peebles: Six statements were given to the police.

Unknown Speaker: Six, and how many of those six were turned over, (a) to the prosecutor, and (b) to the defense?

Mr. Peebles: We're not certain that the prosecutor saw those statements, but for purposes of this case, I think we have to assume that they either saw the statements or that they should have seen them.

Unknown Speaker: What you're saying in part is that it is possible the prosecutors were not aware of the statements and any possible discrepancies between the statements and the--

Mr. Peebles: Yes.

Yes.

They testified 4 years--

Unknown Speaker: --So they wouldn't have had a duty to correct the errors in the witness' statements.

Mr. Peebles: --Yes.

They testified 4 years after the event, and they said we probably saw the statements.

We're not certain.

At one point they said, I'm sure I did see the statements, but he didn't presently remember seeing them.

But they did state clearly that their conviction was that there was nothing in the statements that was of substantial value to the defense, and therefore they felt no obligation ethically to turn the statements over.

The State presented four eye witnesses, three of whom testified that they saw the shooting, saw the defendant leave the area, and some of them were as close as 15 feet to the defendant as he slowly drove by them, and they testified positively that this defendant was the person.

And after the defendant's attorneys took the position that another person, Beanie, was the perpetrator, the State brought all of these witnesses back, had Beanie come into the courtroom, had the defendant stand next to him, and then each of these four defendants again positively identified Curtis Kyles as the perpetrator, and they said that Beanie was not the perpetrator.

Beanie does not look anything like Curtis Kyles.

The State trial judge commented on this in his opinion on postconviction and emphasized the fact that they don't resemble each other.

The Fifth Circuit, in its opinion, said that if you look at the photographs, you can tell they don't resemble each other.

Your Honor, we... Your Honors, we submit that there is no close question here but that you have two separate individuals, and that they did not appear alike, and that the State, as a result, had a very strong case.

Now, the defense, the petitioner here had complained about the statement particularly of Isaac Smallwood.

Mr. Smallwood was one of three workers who was on the Schwegmann's lot at the time.

When he originally was questioned by the police at the scene, he said, I heard a pop, I looked up and I saw this car coming toward me, and the fellow came very close to me and I think I can recognize him.

Now, when they tried the case the first time, he said that same thing.

I saw the... I heard a pop, I saw the car coming, and I could recognize the man as he came by me.

At the second trial, he said he saw the entire thing.

Now, neither the State nor the defense picked upon... picked up on the fact that there was this discrepancy, and the reason, I submit, that they didn't pick up on this fact was that the discrepancy was essentially unimportant.

The discrepancy involved simply whether... at what point he first started viewing the perpetrator.

As the Fifth Circuit pointed out there was no part of Mr. Smallwood's statement in which he made a statement which would challenge his ability to recognize and identify the defendant, or the petitioner in this case.

The identification was not in question there.

Unknown Speaker: Well, but according to your opponent, he... if he... it makes a big difference if you... if you rely on the size of the perpetrator, whether he saw him outside the car or not.

Mr. Peebles: Well, we submit--

Unknown Speaker: There is that discrepancy, isn't there?

Mr. Peebles: --We submit that there... it doesn't make that much difference.

Most--

Unknown Speaker: No, but is it not correct that there is a discrepancy between the suppressed statement and the testimony as to whether he saw him outside the car?

Mr. Peebles: --Yes.

Unknown Speaker: There is.

Mr. Peebles: Yes.

Unknown Speaker: And your point is that that's not--

Mr. Peebles: That didn't make any difference, and then he came within 15 feet of him and drove slowly by.

Unknown Speaker: --Of course, driving by in a car, you couldn't tell how tall he was.

Mr. Peebles: No.

That's correct.

As to Smallwood, it would be difficult for him to tell how tall he was.

According to my notes--

Unknown Speaker: If we'd have had time to ask the petitioner's counsel, both of the... Beanie and the defendant were in court, and all four witnesses looked at both of them in court and said that it's definitely not Beanie.

Mr. Peebles: --That's correct, Your Honor.

Unknown Speaker: What has the defense, or the petitioner's response been to that in previous proceedings, that--

Mr. Peebles: The response is that there was a misidentification--

Unknown Speaker: --to say that this was suggestive--

Mr. Peebles: --They are saying that because there had been one prior trial, which it ended in a mistrial, and there had been prior pretrial hearings in which Kyles had appeared in court and was seen by these witnesses, that this... this influenced them in deciding at this trial, the previous occasions on which they had seen Beanie had influenced them on this occasion.

That was the... that was the argument that they have persistently maintained.

However, that--

Unknown Speaker: --Was Beanie seen in the first trial?

Mr. Peebles: --No, Your Honor.

Unknown Speaker: Or was not identified?

Mr. Peebles: He was not identified at the first trial.

He was present outside the courtroom, but he was not brought into the courtroom.

Unknown Speaker: Mr. Peebles, I don't know why you concede that once inside a car a fire plug and a bean pole look alike.

I mean, is all the discrepancy--

Mr. Peebles: I don't concede that.

Unknown Speaker: --in the height of these two people in the legs?

I mean--

Mr. Peebles: I don't concede that, Your Honor.

Unknown Speaker: --the torsos are the same height, and one of them has very short legs and the other inordinately long?

Mr. Peebles: I'm sorry, Your Honor, I didn't intend to concede that point.

Unknown Speaker: Ah, you did.

You did, though.

You said once they're in the car you can't tell the difference in height.

I think a very short person in a car doesn't come up as high on the window as a very tall person.

Mr. Peebles: I would rephrase it, Your Honor, to say that it would be more difficult to determine the height of a person in the car.

If I may suggest to Justice Kennedy, the fact is that within 4 days after this trial, though, aside from the court appearances, the police presented eye... I'm sorry, photographic line-ups to these people, and according to the testimony at the pretrial hearings, the witnesses immediately and without hesitation picked out of this photographic line-up Kyles.

Unknown Speaker: And Beanie was in the line-ups?

Mr. Peebles: He was not, but they all picked out Kyles.

Unknown Speaker: Were the witnesses ever shown mug shots of Beanie?

Mr. Peebles: I think one of them was, Your Honor, my recollection is, I can't tell you which one, and that that one said... on postconviction, that one said that it was not... it was not Beanie.

That was Jones, if I recall correctly, Willie Jones.

The defense showed Willie Jones a photograph of Beanie, I believe with the hairpiece from Kyles, and Jones said no, it was not.

So we submit that the evidence was very strong by the State there with these eye-witness identifications, but we would point out that in addition to these identifications--

Unknown Speaker: There's no indication why the police didn't show... didn't put Beanie in the line-up, is there?

Mr. Peebles: --He was not a suspect, Your Honor.

He was never a suspect.

We had both the chief homicide detective--

Unknown Speaker: Well, has everybody in the line-up got to be a suspect?

Mr. Peebles: --No.

No, but they had--

Unknown Speaker: So, then, why was that an answer to Justice Ginsburg's question?

Mr. Peebles: --Well, he was not under arrest or anything.

He was just a citizen.

We had no reason to put him in the line-up.

Unknown Speaker: I presume neither do--

--Well, he was an informant.

Excuse me.

He was the informant, though, wasn't he?

Mr. Peebles: Yes, he was the informant, but the police at no time suspected Beanie of being a suspect in this case.

That was their conscientious conclusion.

In addition to the evidence of the eye witnesses--

Unknown Speaker: Well, it's pretty clear that he was complicit in this taking of the stolen automobile, or in the use of a stolen automobile, that he knew that it was stolen.

Mr. Peebles: --I think... I would suggest that probably that is a conclusion that could be drawn by a rational person.

That's why I think the State steered clear of presenting Beanie as a conscientious person that we could rely upon.

We didn't call him as a witness.

We didn't make his character a witness, as a subject of the case, and we did not present a theory of the case which required the jury to believe Beanie.

The only time Beanie's name was mentioned was when the defense attorney cross-examined the police officials with regard to how they obtained some of the evidence, and that evidence included the sales slip found in the--

Unknown Speaker: About the sales slip, I was curious, is it the State's position that the sales slip was the slip of the victim's purchases?

Mr. Peebles: --Your Honor, we can't know that for sure.

All we can--

Unknown Speaker: What was their theory in presenting it?

It was a very small--

Mr. Peebles: --The theory was that it probably was the--

Unknown Speaker: --Even though it was much... then smaller than her normal amount of purchases.

Mr. Peebles: --Yes.

Unknown Speaker: Yes, that she did not make her typical purchases that week.

Mr. Peebles: Yes.

That was only conclusion that could be drawn from--

Unknown Speaker: But she did make her typical purchases of dog food.

Mr. Peebles: --I'm sorry?

Unknown Speaker: But she did make her typical purchases of dog food but of nothing--

Mr. Peebles: Yes.

Unknown Speaker: --else in her weekly shopping.

Mr. Peebles: Yes.

That was the State's thesis, and in addition to that fact, the murder weapon was filed in Kyles' residence.

Now, it is true that the defense claims that Beanie planted that weapon, but a close examination of the record shows that would be extremely difficult to do.

When the police came to Kyles' house, they found not only the weapon, but they found a holster for the weapon in a separate room, they found bullets that fit the weapon in a separate dresser drawer, they found a number of these things, which indicated that Kyles possessed this weapon, and that it would have not been easy for all this to be planted.

But in... not just the weapon, the petitioner is claiming that Beanie planted the lady's purse in Kyles' garbage.

In order to do this, Kyles, according to the theory of the petitioner, Beanie would have had to tell the police on Saturday you better check his garbage, and then, before the police checked the garbage on Sunday, Kyles... I'm sorry, Beanie would then have had to go to Kyles' house the next day and plant the evidence.

That's an unlikely scenario for anyone who's planting evidence.

Unknown Speaker: Well, as to the garbage, he might have planted that first.

Mr. Peebles: He might have.

He might have, but anyone could have planted it, but it's speculative.

It's so speculative that--

Unknown Speaker: But of course, the prosecutor argued that he wasn't even there on Sunday when they knew he was, if I remember--

Mr. Peebles: --Well, I don't think the prosecutor knew that as a fact.

Unknown Speaker: --The police knew he was.

This is another thing the police didn't tell the prosecutor.

Mr. Peebles: The police said that they... the police contact with this man was Detective Miller, and Detective Miller didn't even inform his... the principal homicide detective in this case of most of the things that he did with his informant.

That seems to be the way that police operate with informants, and that's not to say the State shouldn't be held responsible for everything the informant tells the police, but that's simply the situation here.

Now, with regard to the pet food, that is, again, a fairly minor part of the State's case.

The fact is, though, that when the police came to the Kyles' apartment, they found stacks of Kal Kan dog food and 9-Lives cat food, and that just happened to be the same kind of cat food and dog food that the victim traditionally purchased, so testified her husband.

However, I don't want to take this out of perspective.

Our case did not rely upon the pet food or the victim's purse being found in the garbage, or these pieces of tangible evidence.

The heart of the State's case was eye-witness identification, which was strong and was never broken, in spite of vigorous cross-examination.

The argument of the petitioner here that the witnesses only saw the defendant or the petitioner from the side, and that sort of thing, we submit is taking a very narrow view of what these witnesses saw.

The fact is that they saw this petitioner from the moment of the shooting until after he got in his car, drew off the lot and onto the highway and then even waited for a red light before he finally escaped beyond.

They all said they got a very good view of him.

They all positively identified him.

Chief Justice Rehnquist: Your time has expired, Mr. Peebles.

The case is submitted.

Mr. Peebles: Thank you very much.

Unknown Speaker: The honorable court is now adjourned until tomorrow at ten o'clock.

Attribution:

The OYEZ Project

Featured:

United States v. R. Enterprises, Inc. - Oral Argument

Fri, 09 Jan 2009 14:49:37 +0000

Case:

United States v. R. Enterprises, Inc.

Media File:

89-1436_19901029-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of William C. Bryson

Chief Justice Rehnquist: We'll hear argument next in No. 89-1436, United States v. R. Enterprises.

Mr. Bryson.

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

The issue in this case is whether a grand jury must make a showing of relevance before obtaining enforcement of a subpoena for ordinary corporate business records.

This case comes to the Court from the United States Court of Appeals for the Fourth Circuit.

A grand jury in the Eastern District of Virginia served the subpoena on three companies, two of which are respondents in this case.

The three companies were related companies, all were owned by the same man in New York, all had the same address, and all were in the same line of business.

The subpoena, the two subpoenas that are at issue here called for business records of a variety of sorts from the two respondent companies.

The district court had hearings, and with respect to each of the subpoenas, and ruled that there was no requirement of any preliminary showing of relevance.

But in any event, even if there were, that the Government had adequately satisfied the court that the materials sought were relevant, based on the fact that the first company, a company named Model, which is not a respondent in this case, that the Model Company had distributed obscene materials in the Eastern District of Virginia.

And the other two companies, which were owned by the same person and occupied the same premises, although they were not shown to have distributed materials in the Eastern District of Virginia, nonetheless they were sufficiently related to the company that had, that the Government was entitled through the grand jury to inquire as to what activities those companies had been engaged in, and what the relationship was between those companies and Model, which had been involved in the Eastern District distributions.

The court of appeals reversed.

The court held that it was necessary under Rule 17(c) of the Federal Rules of Criminal Procedure for the Government to demonstrate both relevance of the materials and their admissibility at any potential trial before the subpoena could be enforced.

Now we submit that this decision is clearly inconsistent with prior decisions of this Court, and in order to demonstrate, I think, just how inconsistent what the Fourth Circuit has done is, I would like to... to read very briefly a passage from the court of appeals opinion and contrast it with passages from opinions of this Court, because I think the contrast is quite sharp.

The court of appeals said, and I will try to keep it brief,

"The grand jury's request for these records-- "

Unknown Speaker: May I just say, there are several opinions in the case.

Which one are you reading from?

Mr. Bryson: --This is... I am reading from the most recent opinion of the court of appeals.

Unknown Speaker: Which is where in the materials?

Mr. Bryson: The one which is at issue on which cert was granted in this case.

Unknown Speaker: And where is it in the materials?

Mr. Bryson: It's the beginning of the Petition Appendix.

I believe it starts at Pet.

App. 1.

Unknown Speaker: Okay.

Thank you.

Mr. Bryson: Yes.

I am reading from the section of the opinion that starts at Pet.

App. 7 and runs through Pet.

App. 10.

But I will just read two sentences which I think summarize the holding of the court, and summarize what we feel is the clear error committed by the court of appeals here.

"The grand jury's request appears to be premised on nothing more than a mere hope that the documents will reveal a tie between the companies in Virginia. "

Mere hope, however, does not justify the enforcement of a subpoena under Rule 17(c).

And here is the holding of the court,

"The Government must offer some evidence of a connection between MFR and R. Enterprises. "

those are the two respondent companies,

"and Virginia before it can subpoena the companies' business records under Rule 17(c). "

Now contrast that holding, if you will, with the language that this Court employed, and has repeated, I might say, in later cases, but as early as the Blair case, in which the Court said a witness is not entitled to urge objections of incompetency or irrelevancy such as a party might raise, for this is no concern of his.

He is not entitled to set limits to the investigation that the grand jury may conduct.

And again in the Morton Salt case--

Unknown Speaker: What case was that from?

Mr. Bryson: --That is Blair against the United States, 1919 decision, Your Honor.

But again, that language has shown up again and again in this Court's decisions.

The Morton Salt case was--

Unknown Speaker: Well, if you read that literally you can subpoena anything without any limit, right?

Mr. Bryson: --I think there is a limit, Your Honor--

Unknown Speaker: But under Blair there wouldn't be any limit at all.

Mr. Bryson: --Well, Blair is talking about a case in which there is no question that the--

Unknown Speaker: So you don't rely on Blair literally, then?

Mr. Bryson: --We don't say that there are no limits, because we believe that a court has a responsibility to ensure that the grand jury is proceeding in good faith and is not engaged in something that is not--

Unknown Speaker: I just suggest that Blair, like this case, perhaps involves some overriding... you know, written a little beyond the facts.

Mr. Bryson: --The Court could have said assuming that the grand jury is proceeding in good faith, and I think that was the assumption underlying the Court's discussion on that point.

Unknown Speaker: Well actually, Mr. Bryson, you really don't go that far as to say that the court has a responsibility to assure that the grand jury is proceeding in good faith.

You would put the burden--

Mr. Bryson: Exactly.

Unknown Speaker: --So it isn't really that the court has a responsibility to assure it.

Mr. Bryson: Well, the court has--

Unknown Speaker: You would say that if the claimant can show that the grand jury is not proceeding in bad, in good faith--

Mr. Bryson: --If the claimant can make a prima facie showing, then it puts the court in a position that the court is--

Unknown Speaker: --But that showing cannot consist of the, just utter irrelevance to the investigation of what is sought.

Mr. Bryson: --Unless the showing establishes that there is just no conceivable relevance, that the materials are so clearly on their face irrelevant, anything that the grand jury could legitimately be interested in, that it establishes virtually a prima facie case in and of itself that the grand jury is engaged in some kind of improper action beyond the scope of its responsibilities and authorities.

Unknown Speaker: Well, if that has been done, do you say that the burden of proof shifts, or that simply the burden of going forward then devolves on the Government?

Mr. Bryson: I don't think... I don't think the burden of proof shifts.

I think that there may be a situation in which, if, for example, the district court is satisfied that there is no... the district court believes, in looking at the claim that is made, that it is very difficult to imagine how this material could conceivably be relevant to the grand jury's inquiry, then the burden in a practical sense of going forward shifts to the Government, because the court is prepared to say, Government, show my why the recipient of the subpoena doesn't have a fair point here.

Unknown Speaker: Right.

If you can't rebut the claim, you are going to lose.

Mr. Bryson: Now I have to emphasize that.

I don't think there are very many cases that are going to arise with this scenario, because the grand jury's authority to investigate is extremely broad and there will be, it will be a rare case indeed in which a recipient of a subpoena can make the kind of preliminary showing of lack of conceivable relevance.

But assuming that one were made, and there are a couple of cases in the past in the history of grand jury law that indicate such a showing was made, then yes, I think the court can properly look to the Government to demonstrate what it is about this request that makes it, that brings it within the sphere of the grand jury's responsibilities.

Unknown Speaker: Truthfully, we're not talking about the grand jury.

We're talking about the prosecuting attorney, aren't we?

Mr. Bryson: As a practical matter, Your Honor, in most cases that is right.

It's not true in every case, because the grand jury does on occasion exercise independent judgment as to what it wishes to pursue and how it wishes to pursue it.

But I certainly agree with you, Your Honor, in most cases the grand jury acts as the arm of the prosecutor, under the control of the court.

And as this Court has explained, the court maintains responsibility for controlling the actions of the grand jury.

Unknown Speaker: Mr. Bryson, do you think the judge should look at each subpoena all by itself in a vacuum, or is it proper for the judge to consider the pattern of subpoenas of which this is just one?

Mr. Bryson: I think it is perfectly appropriate to consider the pattern of subpoenas, any evidence that may bear on the question of whether the grand jury is acting in good faith in pursuing an investigation.

Unknown Speaker: Is it at all relevant that the other subpoenas raised First Amendment issues that may well have influenced the court of appeals in its earlier decisions?

Mr. Bryson: Well, Your Honor, I don't think... first of all, excuse me... first of all, the court of appeals did not decide this issue on First Amendment grounds.

But in any event, I think that is a consideration that the court, a district court can take into account.

But certainly with respect to these subpoenas, which were merely for business records, and in which there is no apparent First Amendment interest to be in effect whatsoever, we submit that this doesn't present a First Amendment issue, that the proper course for a district court to take would be to say yes, this is the context in which this arises.

But I find that these are merely business record subpoenas and don't affect First Amendment interests.

And that is exactly what the district court found in this case.

In fact, in response--

Unknown Speaker: What exactly were the records that were requested here?

Mr. Bryson: --They were sales journals... well, corporate journals, tax returns--

Unknown Speaker: That would identify the customers and the suppliers of the company.

Mr. Bryson: --Well, the customers' identification provisions were limited to those sales that were made in Virginia, which these two respondents claim were none.

So presumably--

Unknown Speaker: And there is no dispute about that, is there?

Mr. Bryson: --Well, we don't know.

That is what the attorneys for respondents have said.

Unknown Speaker: They filed uncontradicted affidavits to that effect, didn't they?

Mr. Bryson: That is right.

And we have no basis at this point for believing that they are false, but we also, as the district court found, should be entitled to look behind those affidavits and at least get a representation from the corporation in the form of a custodian coming in and saying no, there aren't any such materials.

But in any event, setting aside the question of whether there were materials that were distributed in Virginia by these two companies, the grand jury is entitled to know the relationship of those companies with Model and any other corporate forms of doing business of the principal in this case, who is Mr. Rothstein, who is really the person who is under investigation.

He obviously does business in a corporate form through a variety of corporate devices, and it's... the grand jury's investigation would not be complete unless it had a good idea of the relationship among those corporations, even if it happened that one or two of them had not actually done business in Virginia.

And that was what the prosecutor explained to the district court as the basis for the subpoenas that are at issue in this case.

Now, the question then is... the question arises, how could the court of appeals have made an error that seems as fundamental as this, and we submit they made just one mistake, but it was sufficient.

And that is the court viewed this Court's decision in the Nixon case, which construed Rule 17, the subpoena rule, as it applied to trial subpoenas, the court of appeals construed that decision to apply to grand jury subpoenas.

Once you do that a lot of things happen, and the law goes really awry, because the Nixon case, and we believe correctly, applied Rule 17(c) in the context of trial subpoenas as a rule which requires a showing of relevance and admissibility, or at least the Court devised principles of trial subpoenas that required admissibility and relevance to be shown.

And the reason for that is clear.

The Federal system provides for limited pretrial discovery, it is governed by another rule, Rule 16, and it wouldn't make sense to have Rule 17, the subpoena rule, simply serve as a discovery device.

Well, that is fine in the trial context.

It won't work at all in the grand jury context, because the grand jury is a discovery device.

Talk about how Rule 17 should not be used for fishing expeditions is completely in apposite to grand juries, which are the ultimate fishing expeditions.

Grand juries, as this Court said in Morton Salt, investigate merely on suspicion that the law is being violated, or even just because the grand jury wants assurance that it is not.

I mean, that's the ultimate definition, I suppose, of a fishing expedition, is to go out and find out what is going on in order to obtain assurance that the law is not being violated.

Unknown Speaker: So in terms of the rule, you say that the word unreasonable has one meaning with reference to trial and another with reference to grand jury?

Mr. Bryson: Precisely.

The context is everything.

That the word unreasonable in the trial subpoena setting means that it includes subpoenas that, in which there has not been a showing of relevance or admissibility or specificity.

The word unreasonable in the grand jury context is limited to cases in which the grand jury really is engaged in abuse of its powers.

That is the mistake, in a word, that I think the court of appeals made, and everything is--

Unknown Speaker: Well, doesn't the prior history of the quashing of a whole series of subpoenas demonstrate on its face that the grand jury was abusing its powers in this particular investigation?

Mr. Bryson: --Your Honor, first of all we're talking about there was one--

Unknown Speaker: All of which, as I understand, the Government agrees now they were properly quashed, the prior subpoenas.

Mr. Bryson: --There was one prior subpoena, Your Honor, which was involved in the previous court of appeals decision in this case several years ago, in which we acknowledged that that subpoena was unduly vague.

We went back and redrafted that subpoena.

That was a subpoena for tapes, not a subpoena for business records.

We believe that the court of appeals in this case made a mistake when it quashed that subpoena in the second time around.

We have not pursued that issue in this court, but we believe that its decision on that point was erroneous.

Unknown Speaker: I see.

Mr. Bryson: However, the fact that the grand jury made one mistake, as we see it, with respect to one subpoena several years ago, does not mean that these subpoenas are in any way brought under a cloud.

These are very routine, run-of-the-mine business record subpoenas which, as the district courts found, were perfectly legitimate ways of trying to get information that the grand jury had every right to obtain.

So we see no real relationship between the reversal of the denial of motions to quash in 1987, I believe it was, versus what was done in this case with respect to either the tape subpoenas or the business records subpoenas.

The standard, we believe, as I have mentioned, is that there must be shown to be no conceivable relevance--

Unknown Speaker: In some cases I assume the person to whom the process is served upon will have no knowledge of, really, the subject of the grand jury's investigation.

Mr. Bryson: --Exactly.

Unknown Speaker: If that is so, why shouldn't the Government have the burden to show conceivable relevance, at least in that instance?

Mr. Bryson: Well--

Unknown Speaker: How can the person upon whom the process is served possibly meet that standard?

Mr. Bryson: --Well, there are cases in which it may be possible to make such a showing.

Certainly the party can come forward and say, we certainly can't imagine how this could conceivably be relevant to any criminal activity, and could show that, for example, the activity sought occurred long before the statute of limitations period that is in question, or that there was absolutely no relationship between the district and the company that is involved.

For example, suppose in this case there had been a company in Albany, New York which had no relationship to Mr. Rothstein, Model, or anybody else.

That company could come forward and say, what in the world do you want our materials for.

Now, the district court might, in that setting, very well say all right, I will hear in camera, for example, from the Government, just to satisfy myself that there is some relationship, because frankly it looks fishy to me, and I can't see what in the world the Government might have that is of interest here.

That is something that can be done quickly, can be done very easily, and if it is done in camera can be done without compromising the grand jury's secrecy concerns.

However, we don't submit that this is something that ought to be litigated in an evidentiary hearing where it can be handled very quickly before the district court, either in an in camera proceeding or simply in an informal motion to quash, exactly as was done in this case.

Now I think, if you will look at the proceedings in this case, frankly I think they were a model of the degree of inquiry that is appropriate for a district court to employ where the subpoenas are perhaps a little out of the ordinary, in this case subpoenas that were sent to a company that is outside of the district.

The grand jury in each case had, we think, good reasons which the prosecutor demonstrated, for seeking these materials.

And upon the prosecutor's demonstrating those reasons, the district courts... and there were three different judges who looked at this... each time were satisfied that yes, you have shown me enough to persuade me that there is, that these materials are relevant.

Even though there is no obligation on the part of the Government to make a preliminary showing of relevance, I am certainly not going to quash these materials on grounds of relevance.

That, it seems to us, is a perfectly suitable way for a district court to proceed, and it does not either reveal to an untoward extent what the grand jury is doing, nor does it impede the progress of the grand jury's investigation in a way that this Court in Dionisio and subsequent cases has indicated should not be allowed to happen.

These things do take time, and they, at proceedings all the way through the court of appeals on nice questions of relevance end up depriving the grand jury of materials for long periods of time while the statute of limitations runs.

Unknown Speaker: Mr. Bryson, I thought the Fourth Amendment protected us from unreasonable searches and seizures, not bad faith searches and seizures.

You're telling us that even though what the grand jury asks for is really not related enough that any reasonable investigator would ask for it, nonetheless, so long as this grand jury is invincibly stupid so that it is not acting in bad faith, it is all right.

Mr. Bryson: Your Honor, I think that the question of reasonableness depends on the setting.

And in this setting I think reasonableness allows the grand jury to inquire throughout the area of bona fide good faith criminal investigation, that is--

Unknown Speaker: No, but good faith is different from reasonable.

I mean, if good faith only means reasonable... if good faith means reasonable, we have no problem.

I mean--

Mr. Bryson: --Well, I think in this context reasonable is essentially the same as good faith.

If the grand jury is misguided and is pursuing--

Unknown Speaker: --Well, you don't mean good faith then.

You mean something quite different from good faith.

I thought you meant by good faith that it was the burden of the person from whom the information is sought to show that the grand jury positively was not proceeding in order to further the investigation, however mistakenly, but rather had some other motivation, to harass, to get publicity, or whatever.

You are not saying that now?

Mr. Bryson: --No, I am saying that.

I am saying that--

Unknown Speaker: But that has nothing to do with reasonableness.

I can be really stupid and make a, in the best of good faith, a really unreasonable request for information.

Mr. Bryson: --Well, Your Honor, I disagree.

I think in this context... it may be that your request for information was misguided, but because the grand jury has the, is an independent constitutional body which is entitled to pursue criminal investigations wherever they may lead it, the judgment of a court that this is an unwise line of inquiry, or a line of inquiry that is not apt to be fruitful, is not enough to deprive the grand jury of the right to pursue, albeit fruitlessly, an investigation.

Unknown Speaker: Why can't... I am impressed with the fact that we shouldn't have to, that it will hamstring investigations if you allow these things to be litigated up front all the time, I understand that.

But why can't one have a different rule for whether if the individual refuses to comply with the request and adamantly refuses and is subjected to criminal penalties for that.

The validity of his refusal is then tested on the ground of simply good faith.

Mr. Bryson: Well, that is how these cases are all litigated, at the point at which the individual adamantly refuses.

Unknown Speaker: Well no, it's usually a motion to quash, isn't it?

Mr. Bryson: Well, but that's right.

Unknown Speaker: I'm talking about we will not allow any motions to quash.

You take your chances.

If you want to stand there and refuse to comply and get hit with contempt and a jail term, we'll litigate it.

And if you're right that this was an unreasonable subpoena, you'll win.

And if you're wrong, you'll go to jail for something different from the investigation.

What would be wrong with that solution?

Mr. Bryson: Well, it would be completely inconsistent with the way things have always been done, which is... the fact that it would be a different way of doing things doesn't necessarily make it wrong, but the way we do it now is to have a motion to quash, which is where the question of the validity of the subpoena is decided, then--

Unknown Speaker: And use bad faith for that, that is fine.

But the Constitution does say that I shouldn't have to comply, it seems to me, with an unreasonable request for any of my information.

Mr. Bryson: --Again, our submission is that the definition in this context of unreasonable is not something that a judge thinks is not a fruitful line, or not likely to be a fruitful line of inquiry, but rather something in which the grand jury is clearly out of its bailiwick.

The grand jury has virtual unimpeded independence within the sphere of conducting good faith criminal investigations.

Unknown Speaker: Well, certainly our case of Walling v. Oklahoma Press Publishing Company, which is the leading case for administrative subpoenas, pretty much adopts the test you say, I think, that if you, the person objecting has to show that it isn't going to lead to any relevant evidence.

Mr. Bryson: I think that is essentially the rule both in that case, in Endicott Johnson, which is another administrative subpoena case, and in Morton Salt.

One could have done it differently, but--

Unknown Speaker: Are all of these cases, did they come up on motions to quash, or did they come up--

Mr. Bryson: --They came up because they were--

Unknown Speaker: --Motions to enforce.

Mr. Bryson: --administrative subpoena cases.

They came up on motions to enforce.

Unknown Speaker: Oh, seeking to enforce them in the courts.

Mr. Bryson: That is right.

But that's not the way grand juries--

Unknown Speaker: But it's still... I see.

Mr. Bryson: --Grand juries... subpoenas are self-enforcing.

You don't get to the court of appeals until you get to the point of contempt.

That's the only way you can take an appeal to pursue it.

Whereas in the administrative subpoena area, of course, you--

Unknown Speaker: Of course, quite a few of the judges were formal prosecutors.

Mr. Bryson: --That's true.

Unknown Speaker: So they know what is being done and they know what's--

Mr. Bryson: They have, I think the district courts often are quite sensitive and aware of what is going on--

Unknown Speaker: --If I understand, your position is the judge is perfectly well to say I don't think this leads anyplace, but if you want to go, go.

Mr. Bryson: --That is exactly right.

I think that is our position, that the judge can say I certainly wouldn't pursue it, I think you are barking up a tree that has nothing on it, but I can't tell you that you're not free to do so.

Unknown Speaker: Are the search and seizure provisions of the Fourth Amendment applicable here?

Mr. Bryson: Well, Your Honor, this Court has, since the Boyd case and in subsequent cases including the Walling case, has regarded them as applicable.

I think there is a substantial theoretical question as to whether they ought to be.

Certainly with respect to oppressiveness of the subpoena this Court has said, and said in the Walling case, for example, that if you have a request for a huge number of documents, that creates a Fourth Amendment problem.

But I think that the Court, frankly, took a wrong turn in Boyd on this in regarding the Fourth Amendment as applicable at all to subpoenas.

And one, if one started afresh and examined this question, one could well conclude that this is really a due process problem, not a Fourth Amendment problem.

But I do concede that the Court has repeatedly said that the Fourth Amendment is applicable.

I would like to reserve the rest of my--

Unknown Speaker: Could I ask you just one question, Mr. Bryson, because I kind of got lost.

You take the position that there is a different rule for grand jury subpoenas than for trial subpoenas, and--

Mr. Bryson: --Yes.

Unknown Speaker: --I can understand the reasoning.

Have we held that?

Mr. Bryson: Your Honor, you have not to my knowledge had a case in which that question in that form was presented, so I think the answer to that is no, not to my knowledge.

Unknown Speaker: The Bowman case came up in kind of a funny way, I know.

Mr. Bryson: That was a trial subpoena.

Unknown Speaker: The defendant subpoenaed the Government's materials.

Mr. Bryson: That's right.

That was a trial subpoena.

Of course, when I say you haven't held that, you have held again and again and again that standards different from the ones that were applied in Nixon are applicable to grand jury subpoenas, but you have never sat down and said Rule 17 doesn't apply in the same way to trial subpoenas and grand jury subpoenas.

Unknown Speaker: Thank you, Mr. Bryson.

Mr. Fahringer.

Argument of Herald P. Fahringer

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

I think it is absolutely critical in this whole criminal justice system at the very least that we maintain a mechanism whereby a citizen can come into a court of law who has received a subpoena, and I submit to Your Honors most respectfully that this is a very, very small minority of the cases, and register a constitutional complaint under the Fourth Amendment, the First Amendment, or even under Rule 17(c), all of which may coalesce, and say the Government has no right to take my private papers, and make a showing.

I don't suggest for a moment that the, at that juncture by simply raising those complaints and doing it in the fashion we did here with affidavits that ran some 45 pages, that all that is required is a standard whereby which the Government stands up in that circumstance and the court either says yes, I believe the grieved party has made out a complaint here, and you should give some indication, even in ex parte, even minimal, but you must give me some indication as to why it is these records are relevant based on the affidavits that have been supplied with it.

If the judge then concludes, I believe they have made the substantial showing, that may well be the end of it.

In this--

Unknown Speaker: Do you say that is what the court of appeals held?

Mr. Fahringer: --Yes, Judge, I do, and let me tell you--

Unknown Speaker: Well, it doesn't sound to me like you really were, in your brief that you were really defending what the court of appeals said.

You may be defending what it did.

Mr. Fahringer: --Well, Your Honor, let me just... the court of appeals said our only concern with respect to the business records requested from Model, R. Enterprises, and MFR is the relevancy of those documents to the grand jury's investigation.

Now most unhappily, Your Honor, and I am sure the court is embarrassed by this, that is to say the Fourth Circuit--

Unknown Speaker: Were you, at least you say if you come in and object to the subpoena you have got to do something more than just object.

Mr. Fahringer: --Absolutely, Your Honor.

Unknown Speaker: You have to prove what?

What do you have to prove, or what do you have to convince the judge of?

Mr. Fahringer: I have to, Your Honor, set forth facts as to why I believe there is at least a basis for making the Government... in our case, Your Honor, we came in and it has never been disputed; this little bookstore in Brooklyn does no business in Virginia.

Your Honor, R. Enterprises--

Unknown Speaker: You don't need to argue the facts now.

What burden do you have?

Mr. Fahringer: --The burden we have, Your Honor, is a reasonable showing that there is absolutely no relevance for the records requested.

I could give you a hypothetical where--

Unknown Speaker: Reasonable showing absolutely--

Mr. Fahringer: --Well, a reasonable showing, Your Honor, that we feel there is no basis for requiring us to turn all of our records over to the grand jury.

Unknown Speaker: --And would an affidavit by the defendant be that sort of a reasonable showing?

Mr. Fahringer: I think, Your Honor, it can be done in an affidavit either by the lawyer or by the defendant, at least--

Unknown Speaker: The lawyer on hearsay presumably?

Mr. Fahringer: --Well, Your Honor, in this instance we indicated in our papers we had conducted an investigation, but Judge... they never really challenged the sufficiency of our papers.

From time to time the mention was made that it was done on lawyer's affidavits.

That's the way I had always done it.

But no one ever really moved to dismiss these papers because it wasn't on the defendant's affidavit.

Did the Government make any, ever offer to explain why--

--Your Honor, their position was all along, their official stance was we don't have to show relevance, Your Honor.

Now, I want to be fair and say that from time to time there were suppositions, there was some hypotheticals, it may well be we want to know what other companies Mr. Rothstein has.

But the Third Circuit said, but you never indicated that MFR was doing any business in Virginia, you never indicated that they were engaged in any kind of conduct that would give jurisdiction in Virginia, or were not full outside their powers of investigation.

And I think that was a fair conclusion.

In most cases, Your Honor, I am convinced, I am convinced that in most district courts the prosecutor will come forward and he will make, in every single case, I believe, that is reported in our briefs, the Government has made such a showing.

They have either met the standard of a substantial showing in a First Amendment case or a reasonable showing in a Fourth Amendment case.

The records were directed to be produced.

They were produced.

They're content--

Unknown Speaker: Mr. Fahringer, wasn't it shown in this case that these companies that were being subpoenaed were in fact alter egos of one principal?

Mr. Fahringer: --Your Honor, they were shown that he owned all of the companies, but--

Unknown Speaker: Yeah, well, okay--

Mr. Fahringer: --But I don't think that's enough, Your Honor.

Unknown Speaker: --Why shouldn't the grand jury be entitled to inquire on that basis alone?

Mr. Fahringer: Well, Your Honor, if I may say, as the Third Circuit said, that--

Unknown Speaker: Are you talking about the decision of the Fourth Circuit in this case or the Third Circuit in some other case?

Mr. Fahringer: --I'm sorry.

Forgive me, Your Honor, I'm talking about the Fourth Circuit.

I apologize.

The Fourth Circuit indicated that because the man owns several companies, there is no logical inference from that that MFR, this bookstore in Brooklyn, is doing business in Virginia or shipping books to Virginia.

Unknown Speaker: Well, there may not be any logical inference of the sort that would convince a jury by a preponderance of the evidence, but surely the Government need not show that much when they are just investigating.

Mr. Fahringer: But Judge, they showed nothing, except that one man owned them all.

If they came forward--

Unknown Speaker: Well, why isn't that enough?

Mr. Fahringer: --Well, Your Honor, I think what would be a sounder rule for the litigation of these matters is for a prosecutor to come in and say Your Honor, we think those records will show that this company, MFR, is engaged in a conspiracy--

Unknown Speaker: What you want is a bill of particulars.

Mr. Fahringer: --I beg your pardon?

Unknown Speaker: What you want is a bill of particulars.

Isn't that what you want?

Mr. Fahringer: No, Your Honor, it isn't.

What I really... I am not asking for anything as much as that.

Unknown Speaker: Well, what, what do you want?

What more do you want?

Mr. Fahringer: I think, Your Honor, instead of... we are entitled, instead of a prosecutor coming in and saying we don't have to show relevance, that they show some relevance.

And they can do it, Your Honor, verbally.

They can make the assertion--

Unknown Speaker: Well, that's what I'm asking.

What could they do?

Mr. Fahringer: --Your Honor, in this instance I'll give you an example.

If they had facts, and I would assume as a responsible U.S. attorney they would stand up and they would say, Your Honor, we believe that records of the MFR books will indicate that they are shipping books to Virginia.

Unknown Speaker: I thought the grand jury proceedings were secret--

Mr. Fahringer: They are.

Unknown Speaker: --and that you didn't have to give all the records of the grand jury out in the open courtroom.

Mr. Fahringer: I am not suggesting, Your Honor--

Unknown Speaker: Isn't that what you're asking?

Mr. Fahringer: --Your Honor, what I'm saying is--

Unknown Speaker: Aren't you asking for the Government's case, or a little peep at it?

Mr. Fahringer: --Not at all, Your Honor.

What I am asking for is that they give some indication to the court as to why MFR's records would be relevant to the investigation, not disclose the nature of their investigation.

And Your Honors, in all due respect, I think this is a First Amendment case, even though the Fourth Circuit did not feel they had to reach that issue in this case and decided it on relevancy grounds, we have argued the First Amendment from the beginning here.

This is an investigation into books and film themselves.

This isn't tangential, and these records are intimately involved with the distribution of books.

We stood before the courts in the district court and we said Your Honor, without some showing, and please understand--

Unknown Speaker: But this was looking towards a prosecution for obscenity, wasn't it?

Mr. Fahringer: --That is correct, Your Honor.

Unknown Speaker: And you agree that obscenity is not protected by the First Amendment, don't you?

Mr. Fahringer: Absolutely, Your Honor.

The question is whether... they have never, Your Honor, established in any way... the Fourth Circuit has, the Fourth Circuit has held twice now that you haven't even shown the relevance of these tapes as being obscene.

They come in there and they say by the titles we think they are obscene, and the Fourth Circuit says, we don't think that is enough.

Unknown Speaker: Well, doesn't that get to the issue of whether the, whether there has got to be a demonstration that the evidence would be admissible?

Mr. Fahringer: No, Your Honor.

Unknown Speaker: Do you concede that the Fourth Circuit was wrong in imposing that condition?

Mr. Fahringer: I concede, Your Honor, that they do not have to establish admissibility for a grand jury.

I was about to say to Mr. Chief Justice that if you read this opinion they say our main concern is relevancy.

At the end of that section they say, and we note in passing that as far as Mr. Rothstein is concerned, in all likelihood the MFR bookstore up in Brooklyn wouldn't even be admissible in a trial down here.

I don't think that by any means is a holding of the case.

The holding of the case is they found that there was no showing of any kind that these records were relevant.

Unknown Speaker: And therefore failed to meet the requirement that any documents subpoenaed must be admissible?

Mr. Fahringer: No, Your Honor, not at all, because Judge--

Unknown Speaker: Well that's what it says.

Mr. Fahringer: --If I can answer that question, what they did in this case was we have to deliver... Your Honor, it has been affirmed, 50,000 records of Model, Model Distributors is going to have to deliver 50,000 of their business records.

Those records aren't all admissible.

The Third Circuit, I think it's an insult to the scholarship of that court to suggest that they meant that all of Model's records had to be admissible as well.

They obviously found them to be relevant, but they may never be admissible at trial, 50,000 documents that we are going to comply with.

And incidentally in this case, from the day we received the subpoena we have turned over every single piece of paper--

Unknown Speaker: Mr. Fahringer, why don't you slow down and calm down.

Mr. Fahringer: --I'm sorry, Your Honor.

Forgive me if I lost my composure.

From the beginning of this case we turned over every single document of Model, the first person subpoenaed, that had anything to do with Virginia.

We gave them every invoice of every sale down there.

We gave them our tax returns.

We gave them our business corporate records.

What we said is we don't think we should have to turn over 400,000 pages of records of who we sell in Vermont or New Hampshire or New York or Connecticut or anyplace else.

That is what we were... and ultimately the Government to a degree agreed with us on that.

Then when we came in on MFR books we took the position that you ought to make some preliminary showing at least, after we raised these charges, after we file affidavits and indicate there is no relationship, you ought to come forward at least and indicate how it is that there is some--

Unknown Speaker: May I ask, where are the affidavits in the record?

Are they in the printed materials?

Mr. Fahringer: --They are, Judge, in the court of appeals Appendix--

Unknown Speaker: In the Appendix.

Mr. Fahringer: --which I believe has been transmitted to this Court.

Unknown Speaker: Thank you.

Mr. Fahringer: Eight copies of that.

And we go on and on at great length on this matter.

Incidentally, Your Honors, I think it is fair to consider that there is a pattern here, a very unhappy pattern of coming in the first time around and saying that we should turn over every single tape in the place to a grand jury down there without any, any allegations that they are obscene.

And we were sustained on that.

The Fourth Circuit wrote a very lengthy opinion, and no one sought review in this Court.

And they have, as they stand here today in this Court, to indicate yes, we were wrong on that.

And the 400,000 records that they wanted of Model, they ultimately pulled back from that.

And the second time around, when they wanted 193 tapes without any allegation the tapes were obscene, we were sustained on that as well, and they haven't sought review in this Court, for that matter.

So that there is, it seems to me, a matter of record of, call it what you will, overreaching, overzealousness, or bad faith, whatever you want.

But this is the way this case ended up in the Fourth Circuit.

And I believe that did have some influence on the court, when they said, now, what do you want the records from a bookstore in Brooklyn for down before your grand jury.

And when they took the position we don't have to say, we don't have to give any reason, I believe the court correctly concluded that that was inappropriate.

I believe, Your Honors, that in all fairness the price to pay for preserving the right of privacy under the Fourth Amendment and the First Amendment, because I believe as deeply as I stand here that this is a pure First Amendment case and the consequences of this case, if anybody can come in and not make any showing at all, and the impact this would have of us giving up our customers, our suppliers, and the inhibitions and the chilling effect that that would have would set an awful dangerous precedent.

What it would be a much better rule is to simply hold that in these cases a prosecutor must make some showing.

If he makes a showing and he satisfies the judge, and let me say very candidly to the Court it's a very flexible standard, and I suspect that a great many district judges will be satisfied with their representation, then that will be the end of it, and they will have satisfied their burden.

No one is suggesting for a moment that we don't have to turn over all of these records, that we won't have to deliver them.

All we are saying is that there ought to be at the very least some indication as to how they are relevant.

And once they meet that, and they have done it in all the other cases, the cases that have come up here before you and in the circuit courts where contempt convictions have been affirmed, they have met that standard.

Wouldn't that be a much better rule than to say, and to abolish a rule, to say that prosecutors never have to make, even in a First Amendment case, any showing of relevance whatsoever.

And for all those reasons, Your Honor, I would most respectfully--

Unknown Speaker: Let me just ask you one question.

As I recall their briefs, they say they did represent to the, and the district court was apparently persuaded, that there might be enough similarity between the operations of these two companies in New York and what goes on in Virginia to show some kind of a pattern or intent by engaging in similar acts or possibly conspiracies.

It is sort of speculative, but they did, as I understand it, at least in their briefs they say they made some kind of a showing to the district court, and he allowed the discovery.

Mr. Fahringer: --Your Honor, you are partially correct.

What they said is, and it was stipulated, that these companies are all owned by Martin Rothstein.

Unknown Speaker: Right.

Mr. Fahringer: I don't believe it was ever said they are similar.

They are all, obviously, the bookstore sells adult material.

R. Enterprises also distributes adult material.

What we said is that R. Enterprises and MFR books have never sold anything in New Jersey, have never bought anything from New Jersey, have never had any dealings with... I am sorry, with Virginia whatsoever.

And as a consequence the Fourth Circuit then held that they thought there had to be more facts supplied to the district judge than just that one man owned the three companies.

I also want to, in all candor, Your Honor, tell you that throughout the proceeding they did from time to time indicate collaterally gee, well maybe there might be a conspiracy here, or they might have said at times that we'd like to know more about what Mr. Rothstein owns.

None of the district court judges relied upon that.

All the district court judges relied upon was the common ownership of all three companies by the same person, Your Honor.

And the Fourth Circuit said that wasn't sufficient, and I don't think it is either, certainly not in a First Amendment case.

Unknown Speaker: Well, was the grand jury bound to believe the submission that this, that there was no business done in Virginia by these two other companies?

Mr. Fahringer: No, but Your Honor, it has never been disputed by the Government, and the Government never stood up and said--

Unknown Speaker: Maybe that's what they wanted to find out.

Mr. Fahringer: --But Your Honor, what we're saying is... all we believe the prosecutor would have to say to a district judge is... Your Honor, we believe, instead of agreeing with us and saying it doesn't make any difference whether they do business down here or not, we believe they should have been required to say either one, we think the records will show they do do business down here, and that is why we want them, and that may have been the end of it right then and there.

Unknown Speaker: Do you think it would be enough to say well, we want to find out whether they do or not?

Mr. Fahringer: Judge, I think--

Unknown Speaker: Do they or not?

Would that be enough?

Mr. Fahringer: --No.

Unknown Speaker: Why not?

Mr. Fahringer: Because, Your Honor, I think it requires more.

If we come forward with affidavits in good faith as officers of the court and indicate, and they don't dispute it, and simply say well, we want to be sure, I think that is inadequate.

Unknown Speaker: You're saying then that the Government has to take the word of a potential defendant as to something unless they have some sort of independent evidence.

Mr. Fahringer: Judge, what, I think--

Unknown Speaker: I'm the Chief Justice, not Judge.

Mr. Fahringer: --I'm sorry.

I beg your pardon, Your Honor.

I apologize for that.

Mr. Chief Justice, what I say is this.

I think some representations have to be made to the district court to contravene, or controvert what we say.

It is not enough to say you know, and I quote Your Honor from the record, when one of the district judges said to the prosecutor what do you hope to find in the MFR records, he says I don't know.

I don't know.

I think the district judge was putting the question what do you think that would turn up?

How is it you think that it's relevant?

Unknown Speaker: So let's follow Justice Stevens' hypothesis, or the hypothesis which he mentioned.

Suppose the Government says here we know from the admission that the, Mr. Rothstein owns all three of these companies.

We think it's possible that the MFR bookstore in Brooklyn might have been operated the same way as these others.

We want to take a look at their sales records and see.

And the defendant comes in and says MFR has never sold any books in Virginia.

Now does the Government win or lose at that point?

Mr. Fahringer: They win.

I think--

Unknown Speaker: How is that different from what happened here?

Mr. Fahringer: --Because they didn't say that, Your Honor.

They never made those representations to the court.

What they said is it doesn't make any difference whether they do business down there, we just want to see the records.

That was the difference.

It's a critical factual difference, Your Honor?

Unknown Speaker: So that on these same facts if the Government had just said different words the outcome would have been different?

Mr. Fahringer: Your Honor, what I'm suggesting--

Unknown Speaker: No, you can answer that yes or no.

Mr. Fahringer: --Yes, Judge.

Of course it would, Your Honor.

What I am suggesting is this.

If they come in and had said to that judge Your Honor, we believe that MFR books is in some way involved with distribution of books down here, even--

Unknown Speaker: Okay. What more do they have... is it enough to just say we have a hunch... supposing they say we have a hunch?

We can't prove it in any way, we just have a hunch.

Mr. Fahringer: --I don't think that's enough.

Unknown Speaker: So they have to have outside evidence.

Mr. Fahringer: A good faith basis for arguing that it's relevant.

Unknown Speaker: Okay, which would... the good faith basis would have to have outside evidence, I take it, from your answers to the questions.

Mr. Fahringer: Well, Your Honor, it would either be through their investigation, through informants, through--

Unknown Speaker: Okay, but you're talking about outside evidence.

Mr. Fahringer: --That is correct, Your Honor.

Unless the Court has any other questions, I conclude my argument.

Thank you.

Unknown Speaker: Thank you, Mr. Fahringer.

Mr. Bryson, do you have rebuttal?

You have 4 minutes remaining.

Rebuttal of William C. Bryson

Mr. Bryson: Just very briefly, Your Honor.

The respondents quoted from a section of the transcript, and this is at page 645 of the Joint Appendix, and noted that the court had asked the prosecutor what you would expect to find in MFR's business records, as to which the prosecutor responded,

"I am not sure, Your Honor, I don't know. "

That is where respondents stop, both here and in their brief.

But the prosecutor went on, and he said

"I assume we'll find that Mr. Rothstein's statement is accurate, that he is the owner of all three, that he controls all three, that the assets of all three are intermingled. "

And the court then asks,

"Would this be pertinent to the investigation? "

And the prosecutor says "Absolutely".

And the court asks "How"?

And the prosecutor gives this explanation.

If the grand jury were looking at the possible application, for example, of the Rico statute, and Model were found to have shipped obscene material into the Eastern District of Virginia, a jury could find, if we had the records to support this, that the assets of Model which were generated by the sale of obscene material were used to fund or support the business, the ongoing business of MFR books.

This is one of several theories that the prosecutor laid out for the district court.

This isn't just an I don't know, we're just on a wild goose chase type of answer.

He had an explanation and he gave it.

The prosecutor also was responding, responded to the point that was raised in the district court and has been raised here, that the companies really are not shown to have been engaged in the same business--

Unknown Speaker: May I just be sure I catch this.

You're saying that they might... this is a different point than you made in your brief, at least I think, if I am not mistaken.

He might have shown that the proceeds of the sales of obscene materials in Virginia were used, were siphoned off into the... why couldn't you find that by looking at the Virginia records?

Mr. Bryson: --Well, you wouldn't know what happened to the New York assets that... MFR is based, excuse me, Model is based in New York.

You don't know what Model did with the proceeds of its sales in Virginia.

What it may have been doing is using those proceeds--

Unknown Speaker: Those proceeds would only be relevant if they were sales of obscene materials.

Mr. Bryson: --Yes.

But we do know that Model did sell obscene materials in Virginia, so we have that predicate.

That is clear--

Unknown Speaker: I thought all the subpoenas for the particular tapes had been quashed.

Mr. Bryson: --Well, in another prosecution that was brought previously, Model's tapes were adjudicated to be obscene.

Unknown Speaker: I see.

Mr. Bryson: So we know that they have in the past distributed materials in Virginia.

I would add this wasn't the only theory of relevance.

There were several theories of relevance, and we have discussed them in our brief.

But--

Unknown Speaker: Under that theory you could of course get all the records of all the companies that this man had any investment in.

Mr. Bryson: --Yes, that is right, we could.

And I think that would be entirely reasonable if there is a good faith basis for believing there may have been a racketeering violation here.

Now the--

Unknown Speaker: Which would be established by the sale of one obscene book, I guess?

Mr. Bryson: --It would have to be multiple sales, Your Honor.

Unknown Speaker: Two books, that's right.

Mr. Bryson: Well, that's right.

A pattern of racketeering activity.

I mean, the Rico statute would have to be established, that is right.

In addition I would point out in response to the point that there was no showing that there was a relationship between these companies, the president himself when he was served with the subpoena, and this is in an affidavit that appears at page 401 of the Joint Appendix in the court of appeals, said with respect to the three companies, it's all the same.

I am the president of all three.

I mean he, it is clear that this is really just a set of companies that are alter egos of this man and engaged in the same business.

The grand jury, we submit, was entirely suited, entirely entitled to get those materials.

Thank you.

Chief Justice Rehnquist: Thank you, Mr. Bryson.

The case is submitted.

Unknown Speaker: The honorable court is now adjourned until tomorrow at ten o'clock.

Attribution:

The OYEZ Project

Featured:

United States v. Zolin - Oral Argument

Sun, 06 Feb 2011 03:47:03 +0000

Case:

United States v. Zolin

Media File:

88-40_19890320-argument.mp3

Related Transcript:

88-40_19890320-argument.xml

Transcript:

ORAL ARGUMENT OF ALAN I. HOROWITZ ON BEHALF OF PETITIONER

Chief Justice William H. Rehnquist: We'll hear argument next in No. 88-40, United States against Frank Zolin.

Mr. Horowitz, you may proceed whenever you're ready.

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

This summons enforcement case presents two distinct issues.

First, the authority of the district court to place a condition on its enforcement order requiring the IRS to return to the court for prior approval of certain uses of a summon material.

And, second, the correctness of the standard applied by the court of appeals in ruling upon Respondents' claim of attorney/client privilege for one of the summoned documents.

I will turn my attention initially and primarily to the first question, which has major implications for the effective conduct of IRS investigations generally.

Respondents here oppose the enforcement of the IRS' summons on the ground that it was not issued in good faith.

Specifically, they alleged that the IRS was seeking the summoned documents not for use in its own tax investigation of Ron Hubbard but for the purpose of furnishing the documents to the Department of Justice for use in the defense of a civil damage suit that had been brought against federal officials by the Church of Scientology.

After a hearing, the district court emphatically rejected these allegations and ordered the summons enforced.

In its order, the court stated, and I quote from page 27(a) at the Appendix to the Petition,

"The Church has failed to raise any doubt of the good faith of the IRS in pursuing this summons enforcement proceeding. "

And the court went on to state that the agent did not issue the summons for an improper or collateral purpose.

At the hearing, the court was even more explicit.

And, again, I quote from page 45 of the Joint Appendix.

"There is not an iota of evidence that this summons is being prosecuted for any reason other than to gather information for the ongoing investigation. "

Nevertheless, faced with continued entreaties by Respondents' counsel that the IRS' aim in fact was to turn over the summon material to the Justice Department, and also with the government's statement that it had no such intention, the court sua sponte placed a condition on its enforcement order.

Namely, the court held that the summoned material could not be disclosed to any other government agency without a prior order of the court.

And the court went on to suggest at the hearing that it would issue such an order if the government could demonstrate that the proposed disclosure complied with the confidentiality rules of Section 6103.

Unidentified Justice: Mr. Horowitz--

--Mr. Horowitz, how did that order interfere with the IRS' ability to gather information about its own tax investigation?

I... you know, I had a little difficulty understanding how the government is hurt by that kind of order.

Mr. Horowitz: Well, we recognize, Justice O'Connor, that this particular restriction that was entered in this case is a narrow one and it's fairly benign, in fact, because the government didn't plan to turn over any information, to the Justice Department.

Unidentified Justice: Yes, So the IRS wasn't hindered at all by that--

Mr. Horowitz: The probabilities were--

Unidentified Justice: --as far as I can see it.

Mr. Horowitz: --that on the facts of this case... so it would never have occasion to go to the court and nothing would happen.

But... but it is our contention that the general principle that underlies the district court's, the only way in which its order can be supported by authority, and the principle that was explicitly adopted by the court of appeals is in fact the broad one that has the potential to be extremely damaging to IRS investigations.

Unidentified Justice: Mr. Horowitz, let me interrupt you too.

You stress that the district court said there is not an iota of evidence of bad faith, harassment, or anything of that kind.

What if the district judge had said there's been a lot of evidence offered of bad faith.

I think in balance it doesn't carry the day and I want to let the government enforce the subpoena.

But just as additional insurance, I'm going to order them to limit its use in this way.

Would your argument be any different?

Mr. Horowitz: Well, you're hypothesizing that the district court in fact finds that there's legitimate purpose for the summons--

Unidentified Justice: It comes down to--

Mr. Horowitz: --that's being issued?

Unidentified Justice: --He says, I'm willing to conclude... I've got some doubts in this case.

Because sometimes the facts are close.

We just heard one where there are good arguments on both sides.

And he says, I think the government is... and balance is correct here.

But it's not a case of no iota of evidence because it really doesn't make a difference here.

But there are... there is... I am somewhat concerned.

Mr. Horowitz: Well--

Unidentified Justice: Would you... You'd make exactly the same argument, wouldn't you?

Mr. Horowitz: --Well, that's a somewhat different case.

But our position would be the same, that in fact, as the district court--

Unidentified Justice: But would you be--

Mr. Horowitz: --the district court's--

Unidentified Justice: --Are you better off putting the judge to the absolute choice of saying, Well, I've got enough doubt.

I guess I'd better deny enforcement.

Mr. Horowitz: --Well, I don't know if--

Unidentified Justice: Wouldn't you--

Mr. Horowitz: --We're better off in a particular case.

I mean, it's possible in a particular case the judge might, might find that he needs to deny enforcement because he finds on the facts that there's bad faith where in fact under this scheme that the district court and the court of appeals have adopted he would in fact enforce the summons.

That may be, but the structure that Congress set up for summons enforcement, in our view, does not permit this kind of--

Unidentified Justice: --Well, I understand--

Mr. Horowitz: --monitoring of the investigation and obviously our view was--

Unidentified Justice: --I understand that you're--

Mr. Horowitz: --that on balance we're better off.

Unidentified Justice: --argument.

I just was curious as why you stressed the fact that there was no iota of evidence because--

Mr. Horowitz: Well, I--

Unidentified Justice: --in that case it doesn't really make much difference.

Mr. Horowitz: --Well, I stress it, I think, because Respondent in their brief has gone on and on about the evidence that was placed before the district court and so I'm suggesting that the district court in fact made such a finding.

I mean, the fact is that--

Unidentified Justice: Well, but let's assume there are some cases out there where the judge might thing there's... you know, it's a close case.

You think he should--

Mr. Horowitz: --Well--

Unidentified Justice: --in all close cases just simply rule against the government.

Mr. Horowitz: --I mean, a close case in what sense?

A close case as to whether the--

Unidentified Justice: Well, he thinks there is some reason to believe that one government attorney is concerned about the civil action pending in another court and he just isn't a hundred percent sure that there is complete good faith in that sense.

And he says, Well, I'll go ahead and let you get the information if you give me your assurance that you're not going to use it improperly.

Mr. Horowitz: --Well, it's our position that... that he needs to make a determination at the time the summons is issued and not to keep--

Unidentified Justice: Well, I--

Mr. Horowitz: --keep--

Unidentified Justice: --Well, how does--

Mr. Horowitz: --I think if you look--

Unidentified Justice: --that hurt you?

That's the thing I don't understand.

Mr. Horowitz: --Well, because... because this idea... I was going to quote what the... in response to Justice O'Connor what the court of appeals actually held here, which is that the district court's order in this case created a mechanism whereby the district court court monitor the IRS' use of the summoned documents.

This is an appropriate exercise of the district court's discretion.

Now, this is an extremely damaging statement, extremely damaging policy for the courts to take because it allows the district courts to issue all kinds of orders that will put various restrictions on the IRS' investigation and require the IRS to keep coming back to the district court--

Unidentified Justice: I suppose one could ask rhetorically what harm would an injunction do against a person who claims he's going to obey the law anyway?

Mr. Horowitz: --Well--

Unidentified Justice: But, still, you're entitled to object to an injunction unless the showings made by law required for injunction are made.

Mr. Horowitz: --Well, that's exactly right, Mr. Chief Justice.

As we pointed out in our reply brief, there is a presumption that the government intends to comply with the law.

And courts cannot go out issuing orders just telling parties that they have to comply with the law.

I mean, the problem here is less substantive, especially in this particular case where the judge at least said that he was going to allow the government to make any disclosure that was authorized under Section 6103.

But the problem is procedural.

And this Court has grappled in many different contexts with the various procedures applicable to summons enforcement proceedings and has constantly reiterated the importance of having summary enforcement proceedings once it will not interfere with the IRS' investigation.

And it is our view that this kind of regime under which the courts will... well, maybe issue the summons for now but keep looking to see what the IRS is doing with the information, have the IRS come back if they're going to do something that's a little questionable, overall poses a great threat to effective investigations and one that outweighs the fact that it may be in some case, as Justice Stevens posits, the court may in fact be impelled to deny enforcement for that reason.

I think these courts' decisions, in addition to continually emphasizing, as recently as last month's decision in Stuart, the summary nature of IRS investigations also reflect the fact that the summons enforcement scheme has always been understood as one where the district court's role is limited and one that takes place in one slice of time.

The district court looks at the IRS' summons when it's issue at the time of the enforcement proceeding and decides at that time whether the summons has been issued in good faith for a legitimate purpose under the statute.

And at that point, it decides either to deny or to compel enforcement.

The statute that gives the court jurisdiction, gives it authority only to compel enforcement and, of course, to decline to compel enforcement.

It does not contemplate--

Unidentified Justice: Mr. Horowitz, in a grand jury context do you think the trial judge would have the authority to condition enforcement of a grand jury's subpoena on some kind of protective order?

Say it disclosed trade secrets or something like that and say--

Mr. Horowitz: --Well--

Unidentified Justice: --to the government that there are limits on what you can do with the material?

Mr. Horowitz: --I think that if you're talking about a protective order, say... let's say trade secrets which is the example you gave--

Unidentified Justice: But any kind.

Would you take the same absolute position in a grand jury's subpoena you take here, if there's absolutely no limits that the judge can impose?

Mr. Horowitz: --Well, when we say no limits.

I mean, obviously the judge... there are restrictions on the IRS summons power.

Unidentified Justice: Right.

Mr. Horowitz: And that's what the district court looks at.

Unidentified Justice: And there are restrictions on grand jury material, too.

Mr. Horowitz: Yeah.

We're talking about the judge here imposing some new restriction--

Unidentified Justice: Right.

Mr. Horowitz: --that's not authorized by Congress.

Now, I take it your hypothetical is a case where if the judge didn't impose this restriction there would be no confidentiality protection for the--

Unidentified Justice: Well, he... whatever the protection is... there are cases where judges have imposed additional restrictions on responses to grand jury subpoenas.

I don't think it's ever come to this Court.

I just wonder if the issue is any different.

That's really all I'm asking.

Mr. Horowitz: --Well--

Unidentified Justice: Because there's no statutory... you know, program for them as there is... when there is another--

Mr. Horowitz: --There is a difference between a restriction and enforcing a summons, and a restriction in which the court retains jurisdiction to keep considering whether the IRS is acting properly.

I mean, a judge obviously doesn't have to go just up or down on a summons.

It can enforce the summons in part.

It may decide that certain documents are not relevant to the IRS' investigation.

It may decide that the summons is unduly burdensome in some way and--

Unidentified Justice: --Right.

But any particular document that is produced, that's all the judge can do, is say produce it.

He can't--

Mr. Horowitz: --That's right.

Unidentified Justice: --Either yes or no.

Mr. Horowitz: I mean, the judge's role ends at the time he makes... he makes a decision--

Unidentified Justice: Yes.

Mr. Horowitz: --on whether the summons should be enforced in a particular respect.

And this kind of restriction... in this case, we don't really even understand why... why... it's conceivably argued that there should be such a power in the court.

The... unlike the hypothetical that you gave about the grand jury, the material is already confidential.

This distinguishes it from all the protective order cases that are cited by Respondents.

There is no need for the court to go out and protect the confidentiality of the material.

Unidentified Justice: Well, what if the... what if the taxpayer being investigated finds out that the government isn't living up to the rules and they exchange information, or that people who have no business knowing it are seeing it?

What's he supposed to do?

Go back to the judge?

Mr. Horowitz: No, he's not supposed to go back to the judge.

He's supposed to go to a new judge and bring a suit.

Unidentified Justice: Go to a new judge?

Mr. Horowitz: Go to a new judge, He's... in that case, he's claiming that there's been a violation of Section 6103 and he's got remedies for that.

Unidentified Justice: Then the court has a role in monitoring the IRS' performance?

Mr. Horowitz: No.

No.

I disagree, Justice White.

I mean, he's got his own remedies under Section 6103.

One of those remedies is to bring a damage action against the government under Section 7431 of the Code.

Unidentified Justice: But a judge is going to decide that case.

Mr. Horowitz: A judge is going to decide it, but a judge... that is an independent action in which the... the agents involved may or may not have to pay damages.

But it doesn't act as a prophylactic... as prior restraint--

Unidentified Justice: But how about getting an order to stop doing what you're doing?

Mr. Horowitz: --Well, then he would have to go through the usual hoops of getting injunctive relief.

Unidentified Justice: Okay.

Mr. Horowitz: In this case I'm not sure he could get it because of the Tax Anti-injunction Acts.

Again, another... just another manifestation of Congress' particular concern that IRS investigations not be hampered by continual court proceedings that interfere with them in the middle.

But I think you have the Anti-injunction Act--

Unidentified Justice: What about the judge saying the IRS can get this information on the provision that they let no one else see it?

Nobody else?

Mr. Horowitz: --I think, Justice Marshall, that would absolutely be erroneous for the court to do that.

Unidentified Justice: Would be what?

Mr. Horowitz: The court does not have the power to do that.

There are... Congress has set up very specific limitations--

Unidentified Justice: So... so it's all right for the IRS to give it to the newspapers?

Mr. Horowitz: --It's not all right for the IRS to give it to the newspapers because Congress--

Unidentified Justice: Well, suppose--

Mr. Horowitz: --has provided that it does not.

Unidentified Justice: --that the court says IRS shouldn't get this but you shall not release it to the newspapers?

Mr. Horowitz: Well, that's essentially what we have in this case, the same kind of order.

The IRS--

Unidentified Justice: And you say that's wrong?

Mr. Horowitz: --That's right.

The court is telling the IRS that you can't do something that the IRS already is not allowed to do.

There is no purpose for such a--

Unidentified Justice: Does the IRS have the right to turn over confidential material to the newspapers?

Where did they get it from?

Mr. Horowitz: --No.

They do not have that right.

That's the point I'm trying to make.

That Congress has already decided that that material is confidential.

And there is no reason for the court to enter a new order under penalty of contempt--

Unidentified Justice: I don't see why a court doesn't have a right to control its own orders rather than to have the IRS control the court's discretion.

Mr. Horowitz: --Well--

Unidentified Justice: Do you understand what I mean?

Mr. Horowitz: --I understand what you're saying.

But I think this just goes back to the basic point that the Chief Justice made, which is that the courts cannot go out running around issuing orders telling various litigants to obey the law that's already out there.

There are procedures for enforcing the laws and they don't include having courts--

Unidentified Justice: What is a procedure to stop the IRS from giving this information to the Justice Department?

Mr. Horowitz: --The procedure is the procedures provided for enforcing Section 6103, which is largely at Section 7431, Damage Action.

Unidentified Justice: Damage action?

Mr. Horowitz: Yes.

Unidentified Justice: Have you ever seen one of those?

Mr. Horowitz: Yes, I have.

Unidentified Justice: You're sure?

Mr. Horowitz: In the Barrett case that's pending in this Court there is one.

Unidentified Justice: You've seen one?

Mr. Horowitz: I've seen several of them, actually.

And probably some of them will percolate up here sooner or later.

The fact is that that is the mechanism that Congress--

Unidentified Justice: Do you--

Mr. Horowitz: --chose to enforce--

Unidentified Justice: --I thought I hadn't seen one I--

Mr. Horowitz: --Well, we've been trying to spare the Supreme Court from this--

Unidentified Justice: --I was in another position; I didn't see it either.

Mr. Horowitz: --The statute, I think, was enacted in 1976.

Section 7431.

Well, let me given an example in a different context.

If there was a Freedom of Information Act suit that was brought and... and the requestor claims that he's entitled... that there's no exceptions applicable... he's entitled to the documents and the government has to turn them over under the FOIA, surely the judge's role in that kind of a suit is to look at the Freedom of Information Act and decide whether the information is protected or whether it should be disclosed.

It's not the Judge's business to find out what the requestor plans to do with the information after he gets it.

It's not the judge's concern whether the requestor is planning to use it to get more information to run some extortion scheme, or something.

That's just not the Judge's province in that kind of suit.

It's up to the judge to decide, under the standards set forth in FOIA, whether the information is to be disclosed.

And when the judge has made that determination, he either orders the information disclosed or not.

And then he is done.

He doesn't tell the requestor, okay, I'm going to give you the information but you come back here every six months and I want to make sure that you're not using it for some--

Unidentified Justice: Are you aware of cases in which enforcement has been denied?

Mr. Horowitz: --Enforcement of IRS summons?

Unidentified Justice: Yes.

Mr. Horowitz: Yes.

There have been many cases where an IRS summons was denied.

And--

Unidentified Justice: But you don't advertise them a lot, right?

[Laughter]

Mr. Horowitz: --I think I'd like to mention one other policy point that's involved here in addition to the delay that can occur.

Actually, the delay can occur at two stages.

If these kinds of restrictive orders are permitted, we think (a) that it will cause additional delay at the initial summons enforcement stage where, as opposed to the normal fairly summary proceeding where litigants occasionally are challenging whether there's bad faith or good faith and whether the summons should be enforced, there will be a whole additional set of litigation over what sort of restrictions are appropriate for which documents.

They are appropriate and possible appeals from that kind of litigation.

And also, of course, down the road you have the problem of where the IRS is required to come back to the court for permission to make the particular use that's been restricted.

Even if the Court agrees with the IRS that the disclosure, or whatever it is, is permissible, it's still a serious problem because the investigation is halted in the middle, the IRS has to run back to the court.

As you know, they have to get a court date.

They can't just walk in that morning.

And the whole thing is halted for a period of time.

Second, at least in the 6103 context, most of the disclosures that are going to be sought by the IRS in this connection... or, many of them anyway... are going to come under Section 6103(k)(6) which is disclosures that are necessary for law enforcement purposes for the IRS investigation.

I think in order for the IRS to persuade the court that the disclosure is necessary for that purpose, it's going to have to give a little bit of a roadmap of its investigation to the court to explain why the disclosure is necessary.

And that obviously can inhibit the success of the investigation if that kind of information is provided to the target, a problem that this Court alluded to in the O'Brien case.

I think I should turn briefly now to the attorney/client question, if there are no further questions on the summons issue.

The question here is whether the tape recording of a meeting between certain church officials and their counsel is protected by the attorney/client privilege because the government did not prove by evidence independent of the communications themselves that the meeting was in furtherance of a crime or fraud.

The IRS here produced as evidence that the crime-fraud exception applied a partial transcript of the tape that had been furnished by an informant.

And, in addition, because this tape had actually been in the possession of the IRS for a short time, and an IRS official had listened to the tape, the IRS also proffered the affidavit of an IRS agent describing the contents of the tape.

The court of appeals held that this highly-probative evidence cannot be considered in determining the applicability of the crime-fraud exception because it is not independent of the communications itself... themselves.

The result of the court of appeals rule is that there are going to be cases where the court knows to an absolute certainty that the communications are not privileged.

Nevertheless, it will be bound to deny probative evidence to the factfinder on grounds of attorney/client privilege.

This rule leads to a perverse result--

Unidentified Justice: Mr. Horowitz, can I... do I understand your position correctly?

You do not deny that you need some prima facie evidence before you go in camera?

You... You don't assert that you can just come into the judge and say, you know, we suspect that this is not really a privileged communication.

We want you to look it over in camera.

Mr. Horowitz: --Well, let me say two things, Justice Scalia.

First of all, this case itself doesn't involve in camera inspection at all because the government already has--

Unidentified Justice: Right.

Mr. Horowitz: --the nonindependent evidence from these other sources I just mentioned.

Unidentified Justice: Right.

Mr. Horowitz: In that case, we recognize that the district court has discretion to deny in camera review.

If the government just came in and said, we want you to look at the documents in camera with nothing else,... I'm not saying they couldn't do it, but I suspect the judge would deny it.

And I don't think we would have any grounds for complaining.

I think naturally any time you're going to ask the district court to do something like that, you're going to have to come in with some sort of reason to make the judge do it.

Unidentified Justice: Well, that's... that's comforting.

But you're not willing to admit that the district court can't do it?

Mr. Horowitz: I guess I'm not.

It seems to me if the district court did do it and in fact found that the documents proved crime or fraud, I don't think that would be reversible on appeal.

I don't think you could get the attorney/client privilege reinstated on the ground that the district court shouldn't have looked at them in the first place.

Unidentified Justice: Well, that may be true.

But wouldn't you say that if there was nothing except a... a suspicion by the government, or by anybody else, that the crime... crime-fraud... fraud exception would be met the judge would have a legal duty not to look.

Wouldn't he have to respect the privilege?

He or she have to respect the privilege?

Mr. Horowitz: Well, I'm not sure how to answer that, Justice Stevens.

It seems to me unrealistic to assume that the government would have no evidence of that.

I suppose if it had absolutely no reason other than some--

Unidentified Justice: So, basically as a practical matter the question is how much evidence--

Mr. Horowitz: --Yes.

Unidentified Justice: --does the government need.

Mr. Horowitz: Yes.

How much of it.

And that, I think, is a hard question to answer.

It's largely--

Unidentified Justice: And what--

Mr. Horowitz: --In the discretion of the court.

Unidentified Justice: --And what is your position?

Because I think I have the same difficulty Justice Scalia did in reading your brief.

You seem to be saying they don't really need anything.

But I think you've kind of acknowledged they need something.

Mr. Horowitz: Yes.

I think as a practical matter they need something.

But I--

Unidentified Justice: Then how do we define--

Mr. Horowitz: --don't really know where to draw the line.

So--

Unidentified Justice: --And that's the question.

How do we define that something?

Mr. Horowitz: --Well, I don't know.

Unidentified Justice: But not as a legal matter, just as you still keep on saying.

As a practical matter they need something here.

Mr. Horowitz: Well, I'm willing to say--

Unidentified Justice: You still won't concede--

Mr. Horowitz: --they need something.

You know, the counsel never wants to concede anything, but it seems to me that this Court--

Unidentified Justice: --Have you noticed that--

Mr. Horowitz: --would probably be mistaken in looking at documents with no reason to suspect crime or fraud other than the government begging them to look at them.

So,--

Unidentified Justice: --And your position is--

Mr. Horowitz: --But I don't know how to draw the line exactly and it's not an issue in this case.

Unidentified Justice: --I see.

Your position is that, whatever the line is, that you met it in this case, and if you can meet that line, you can look at the document to be sure that there... I mean to be satisfied or something.

Mr. Horowitz: Though, in this case--

Unidentified Justice: That's basically what--

Mr. Horowitz: --As I said, in this case we didn't even... we're not really... well, we did ask for in camera review if the court--

Unidentified Justice: --Yes.

Mr. Horowitz: --in fact wasn't persuaded by what we submitted.

But we submitted a lot of nonindependent... proffered, at least, a lot of nonindependent evidence without the court ever having to look at the documents in camera.

And the court of appeals... under the court of appeals' rule none of the--

Unidentified Justice: Yes.

Mr. Horowitz: --this is in probative of--

Unidentified Justice: Does the IRS still use outside people to get this information?

Mr. Horowitz: --Which information?

Unidentified Justice: Electronic.

Mr. Horowitz: Which information, Justice Marshall?

Unidentified Justice: Electronically, does the IRS still shop it out for private people to do it?

Mr. Horowitz: I don't know.

This tape recording was made by the Respondents themselves.

This is not a wiretap.

I don't know the answer to your question.

I'd like to reserve the remainder of my time.

Unidentified Justice: Very well Mr. Horowitz.

Mr. Hertzberg.

ORAL ARGUMENT OF MICHAEL LEE HERTZBERG ON BEHALF OF RESPONDENTS

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

I believe that the... addressing, first, the crime-fraud issue... I believe that the government has effectively conceded that there is a need for some independent evidence... an independent evidence rule, as it were... before a court may upon a mere incantation of the words crime-fraud review privileged communications between an attorney and a client for which a privilege has already been established.

If I understood counsel's answers to the questions posed by Justice Scalia and Justice Stevens, he said there has to be some sort of evidence, there has to be some sort of reason submitted by the government.

Unidentified Justice: But the issue is simply whether that evidence can be the communication itself, which the government has gotten ahold of in some other fashion.

Why can't that evidence be the communication itself?

Mr. Hertzberg: It should not be the communication itself because otherwise, in the first instance, a party... whether it be the government or an adverse civil litigant... could come into court and just ritualistically intone the terms crime-fraud with respect to privileged communications, and under the scenario which the government outlines--

Unidentified Justice: No.

I think you're leaving out a step.

I think Justice Scalia and I are both assuming that without just coming into court and referring to the privilege the government has legitimately acquired possession of a privileged communication which it had a right to look at.

Could it then go ahead and ask the judge also to look at it to make this determination?

Mr. Hertzberg: --It should not be able to.

First, let me just make it clear that in this particular case there is no record to show that the government legitimately obtained the particular communications which are at issue in this case.

There was no determination made about that below.

That was not the issue below.

Unidentified Justice: No.

But the trial judge or the court of appeals... I can't remember which... assumed that they may well have had it legitimately but, nevertheless, said we don't care about that, we cannot look inside this--

Mr. Hertzberg: Well, in fact, Justice Stevens, the trial judge over our objections did look at the massive excerpts from the tape recordings, which are the communications in this particular case, and in fact found that they did not establish a prima facie case of crime or fraud.

So, the district court in this case, in an ironic twist, over our objection, did look at the communication.

The court of appeals, however, said that the district court should have initially considered independent evidence only to determine whether there was communication in furtherance of a crime or fraud.

And we think that that test, which was enunciated by the Ninth Circuit, and which as we have demonstrated in our briefs is in practice employed in one form or another by many courts of appeals and federal district courts throughout the country, is the proper approach.

The... the analysis should not turn on whether fortuitously the government or an adverse civil party has managed to get privileged communication, and has them, and can submit them to the court along with an allegation of crime-fraud.

There has to be a standardized, methodical and logical approach before the analysis can be made.

Unidentified Justice: --But what is the standard, though, when you need independent evidence?

Is it a probable cause standard or a preponderance of the evidence, or what?

Mr. Hertzberg: Your Honor, the courts have given slightly different formulations.

The Second Circuit apparently does use a probable cause standard.

The Ninth Circuit, without elaboration referred to... and all the courts, of course, refer to the prima facie test.

We submit that the prima facie test in the general sense in which that term is used means a case... a prima facie showing... a case which is enough to support a directed verdict if unrebutted.

We're comfortable enough with that definition.

And the government failed to--

Unidentified Justice: --probable cause?

Mr. Hertzberg: --Excuse me, Your Honor?

You're not comfortable with the Second Circuit's standards?

Oh, I'm sure that there is... if anything, it may be a higher standard, and I would be equally if not more comfortable with it.

I'm not urging one standard or another because in this case at every stage the government failed... in the district court, with the court looking at the communications and the independent evidence, in the court of appeal, with the court... the Ninth Circuit panel determining that the government had not even made out a prima facie--

Unidentified Justice: Well, but if--

Mr. Hertzberg: --case of illegality.

Unidentified Justice: --If we sustain the government's position here, the case would go back to the Ninth Circuit for them to review the district court's determination, I suppose.

Mr. Hertzberg: That's--

Unidentified Justice: That the tapes themselves... so, it's not as if the thing were totally moot.

The government says that your argument is inconsistent with our opinion a couple of years ago in the Bourjaily case.

Mr. Hertzberg: --We don't see any such inconsistency at all.

In fact, if anything, Justice Rehnquist, we think that the Bourjaily case supports us.

In that case this Court merely determined that the showing the preliminary evidentiary determination by a district court judge on the co-conspirator hearsay exception under Rule 801 could be made by looking at the hearsay statements themselves.

This Court did not reach a question of whether it could be made exclusively by looking at those statements, but it said they could be considered.

Unidentified Justice: Well, does--

Mr. Hertzberg: And this Court--

Unidentified Justice: --The government here is asking for nothing more than consideration along with whatever evidence is--

Mr. Hertzberg: --However, Justice Rehnquist, the foundation for this Court's decision in Bourjaily was referenced to Rule 104(a) of the Federal Rules of Evidence.

And that Rule provides that in making preliminary evidentiary determinations a court may look at any evidence except privileged communications.

And we are, of course... we fall within the privilege.

These... These tapes which are at issue in this case were found to be privileged communications.

So, the 104(a) exception--

Unidentified Justice: --Well, how... how do you know whether they're privileged communications, though, if... if... before you decide this challenge in one way or the other, because the crime-fraud exception says it's not privileged if there is crime-fraud involved?

Mr. Hertzberg: --Well, Your Honor, in this way.

Because we were able to establish without submission to the court in camera below in the district court that these documents were presumptively privileged.

And then the burden shifts... when somebody comes later on, as the government did, the burden shifts to the opponent of the privilege.

And they carry a serious burden here to try to strip the privilege.

And that's the analyses.

This is not just a concurrent mix necessarily.

In the first instance, these communications--

Unidentified Justice: Well, what's the authority for... for that line of progression that you're... first, a claim of privilege or prima facie?

And then the burden shifts?

Does that come from one or more of our cases?

Mr. Hertzberg: --Your Honor, I'm not basing this on a particular case.

Unidentified Justice: What are you basing it on?

Mr. Hertzberg: I'm basing it on what happened in this case.

Unidentified Justice: Well, but maybe... maybe we could have some higher authority than that.

Mr. Hertzberg: Well, Your Honor, I don't have... I'm not sure that there's an authority that specifically addresses the order in which the crime-fraud exception is applied on a claim of privilege.

But in very many cases it is undisputed that communications are protected by the attorney/client privilege, save for the possibility that they may be subject to the crime-fraud exception and that the crime-fraud exception will strip them of the privilege.

For instance, when the government's subpoenas for documents from an attorney office for a grand jury, for example, they rarely will say these were not communications in confidence between the attorney and the client.

They will assert... they will in effect concede that but for their claim of the crime-fraud exception the documents are privileged.

And that's what I'm referring to in this particular instance.

Unidentified Justice: Mr. Hertzberg, I'm... I'm not sure what... what you would require by way of prima facie evidence.

Suppose the advice is given at a meeting in which a third party is present and the government has testimony from the third party saying this wasn't just legal advise; they were in fact planning... planning the fraud.

Would that be enough?

Mr. Hertzberg: Yes.

Unidentified Justice: Because he was there and he overheard it?

Mr. Hertzberg: Yes.

Unidentified Justice: But if you had a tape of it, that would be no good?

Mr. Hertzberg: No.

Unidentified Justice: What sense is there in that distinction?

I can't understand that at all.

Mr. Hertzberg: Well, I'll tell you what the difference is.

Your Honor's question turns on the fortuity of the government happening to have the tape here.

Unidentified Justice: And the other one turns on the fortuity of somebody happening to have been present.

I mean--

Mr. Hertzberg: If there was a witness... if there is a witness, the witness confirms... I suppose... backing up for one moment, Your Honor.

I suppose the witness might not be able to testify absent independent evidence.

Unidentified Justice: --Well, that would seem more logical, I must say.

Mr. Hertzberg: Yes.

I was too quick to... to agree with--

Unidentified Justice: You wouldn't let the witness in either?

Mr. Hertzberg: --No, I would not, because if the rule is to be served--

Unidentified Justice: Well, what kind of evidence do you want of... that the fraud exists?

Mr. Hertzberg: --The kind of evidence that invariably the government or civil parties have anyway.

That there was some wrongdoing.

I mean, presumably the government is not conducting a grand jury investigation or allegations made in a civil case in a vacuum.

They're not taking... randomly accusing somebody of wrongdoing.

They have some evidence that there was wrongdoing going on, and they have prima facie evidence or reason to believe that the attorneys may have furthered the wrongdoing.

And they make the allegation of the crime-fraud exception.

But the government cannot go around and... and I do not understand counsel to suggest that they could randomly without any basis in fact suspect that an attorney/client communications between... confidential communications were in furtherance of a crime-fraud.

And that's all the prima facie case requires.

It only requires that the mere invocation of the words crime-fraud be supported by some factual underpinning before--

Unidentified Justice: But what if the government has in its possession the things that you're claiming are privileged, and it's perfectly evident from examining those documents that there was crime and fraud afoot?

Mr. Hertzberg: --Well, if we're addressing this case in particular, Justice Rehnquist, I think that at the least there would have to be a question on remand about whether the government was rightfully in possession of the... of the tapes.

And I think that's a question that wasn't reached and need not have been reached under the prevailing--

Unidentified Justice: Well, and certainly not raised by any party to this case.

Mr. Hertzberg: --But what we're saying is that the independent evidence test serves a very logical purpose.

It balances the need for relevant evidence with the need for society to--

Unidentified Justice: Why do you need an independent evidence when the government is in possession of the documents for which the privilege is claimed and the documents themselves plainly... just have crime and fraud written all over them?

Mr. Hertzberg: --Well, first, let me remind the Court that in this case they did not and they were found not to... not to have--

Unidentified Justice: No?

Mr. Hertzberg: --not to have.

Unidentified Justice: Well, but... but that finding has not been reviewed by the Ninth Circuit.

Mr. Hertzberg: Well, it has in part because the Ninth Circuit found--

Unidentified Justice: Well, let's not get into... into those side issues.

What's your answer to my question?

Mr. Hertzberg: --Your Honor, we would say that the salutary effect of the independent evidence rule in those rare instances where a party happens to have the confidences to begin with... and that would be extremely rare... normally when the party is seeking access to the attorney/client communications, they don't have them to begin with.

But in those rare, rare instances, as by happenstance occurred for instance in this case, the purpose of the rule is better served by still requiring that there be a prima facie showing at the outset.

Unidentified Justice: But not--

Mr. Hertzberg: To satisfy the court--

Unidentified Justice: --where you can't rely on the documents at all even though the documents virtually scream fraud?

Is that your position?

Mr. Hertzberg: --That the court should not look at them, in the first instance.

Yes, that is our position.

In those rare instances.

Again, I want to stress that it is not... it is far from normal... it is highly unusual to contemplate a situation where a... whether it's a government or a civil party... is seeking the court's process to obtain documents that they have already.

We do not want... we don't think the court should give an advantage to a party that manages to get within its possession before a determination by a court of the privileged communications.

This could encourage, for instance--

Unidentified Justice: Well, there could be an incentive... it could be at fault.

There's certainly... you can't say conclusively that in effect the other party has a privileged communication means that it acquired it by fault.

Mr. Hertzberg: --Not necessarily.

But I think that if this Court had a different rule for that particular unusual circumstance, it might encourage situations... particularly in the civil arena where major corporations are litigating against each other, and there could be an inducement for a corporation to try to... if it were a disaffected employee or otherwise... to get confidential communications from the other side and then feel all they have to do is holler crime-fraud and the court can start going through the entirety of the communications.

So, we think that that would be... for purposes of uniform application, there should be some quantum, which we maintain to be the prima facie showing, of crime or fraud to support that allegation before in camera review can be sought.

I want to turn to the other issue that is raised by the government.

And that is the question about the order of this Court.

We believe that that order is well-supported by the inherent power of Article III courts to insure that their process is not abused.

It is fundamental.

It comes from as long ago as the Gumbel v. Pitkin decision of this Court in 1888, though the Powell case which specifically in the context of summons enforcement actions warned that it is the process of the Court that is being sought to enforce a summons by the Internal Revenue Service, and courts should not allow that process to be abused.

Unidentified Justice: In the Stuart case issued just a few years... a few weeks ago, Counsel, we said that once the IRS shows that it's entitled to the order, that's the end of the matter.

Mr. Hertzberg: I... I read that, Your Honor.

However, respectfully, the Stuart case presented a very far and different issue and was not... I think that that one statement that you've extracted, Justice Kennedy, certainly not made in the context of the issue that's before this Court on the protective order that was issued below.

What the government seems... the government, by the way, has really retreated, as I understand their oral argument, from the premise of their brief... the question presented in their brief.

In the brief, and the question on which they sought and obtained certiorari in this Court, was the argument that district courts are wholly without authority under any circumstances whatsoever in summons enforcement proceedings to take any steps to make sure that their process is not abused.

They said enforcement or denial, there's no in between.

Now, they start their argument off today by quibbling about the record below.

Did we make a sufficient showing?

Well, the district court, notwithstanding the language which my learned opponent quoted to the Court, the district court did find that we had raised a real fear that the five documents which we were enforcing through the summons would be turned over to the government and possibly then given to civil attorneys for the Department of Justice.

And he articulated that fear in the record.

And the Ninth Circuit reviewed, looking for abusive discretion, specifically reviewed the record... and it was an ample record that was before the court... there was a hearing and there was considerable testimony to substantiate what the court of appeals decided was a real fear that information purportedly being sought under authority of the summons might be used for an improper purpose and disseminated improperly later on.

And the result was what my colleague calls now the narrow order or the fairly benign order of the Court.

And we think it was extremely narrow.

All it does is say to the government you can't use those five documents that I'm giving you for any purpose other than... reference to the Department of Justice for criminal prosecution, which is the premise on which you came to this Court in the first place.

Or, you must obtain an order of this Court.

It didn't say you can't communicate with other government agencies.

It didn't say you can't go out in the world and look for witnesses and talk to them and--

Unidentified Justice: Well, what if it had?

Mr. Hertzberg: --proceed with an investigation.

Unidentified Justice: What if it had?

Are there limits on the court's power in this regard to enter protective orders?

Mr. Hertzberg: That's, I think, a fairly broad question.

It's hard for me to say that there couldn't be some limits, but those limits are not in our case.

I don't think we need reach that question, Justice O'Connor.

I think that the--

Unidentified Justice: Well, but we have to write the opinion and you're arguing that there should be a rule that gives the district court some authority to control the IRS.

So, we're certainly entitled to inquire what the dimensions of the rule are that you're proposing.

Mr. Hertzberg: --Well, I think that... I think that the dimensions of the rule are that, as I... as I can formulate them, that the Court can fashion an order when it feels that the record warrants it to insure that its process is not abused.

Within those parameters, it has that inherent power.

And the government... as long as there is no indication that... I would add this.

As long as there is no indication that it would interfere with the investigation of the government.

And there has been no such real argument made in this case by the government.

Unidentified Justice: What kind of evidence?

I suppose you'd say there would have to be a record made before the district judge, there must be some evidence of some danger or risk of disclosure?

The judge just can't say, I don't trust the IRS and I'm going to enter this order, I don't suppose.

Mr. Hertzberg: Well, presumably he would have a factual record which would warrant applying--

Unidentified Justice: What kind of facts?

Mr. Hertzberg: --I think the kind of facts--

Unidentified Justice: Actual concrete evidence and here are these other unreliable government attorneys.

Mr. Hertzberg: --Yes.

The kind of record that was adduced in this case, Justice White.

And a record that would be reviewed by a court of appeal for abuse of discretion.

Unidentified Justice: And you think you made that kind of a record here... that raising a real valid doubt about the veracity and trustworthiness of the testimony in this--

Mr. Hertzberg: Yes.

The district court felt we had and the court of appeals felt we had... and called it a wise exercise of control and exercise of discretion.

And that record... I don't want to get too much into the record... but in a very brief hearing that we were afforded, there was an undisputed record of constant communication between the Department of Justice civil attorneys engaged in non-tax related litigation in Washington against the Church of Scientology.

On the telephone constantly--

Unidentified Justice: --Mr. Hertzberg, on page 26A of the petition for certiorari where it's Judge Hupp's ruling on a motion for reconsideration, he says when the government asked him to reconsider his order conditioning... he says,

"Since the entire basis of the summons proceeding was to obtain material for a tax investigation, the court thinks it reasonable to restrict the use of the material for that purpose unless a criminal prosecution is administered. "

Now, that sounds just... it doesn't sound from that... perhaps there's something else... he was moved particularly by any showing in this case, but just the idea that the IRS shouldn't disobey the law.

Mr. Hertzberg: --Now, Justice Rehnquist, our Joint Appendix--

Unidentified Justice: Well, are you saying this doesn't say what I just read to you?

Mr. Hertzberg: --Well, you... I... I was confused.

I thought you said 26A.

Unidentified Justice: That's exactly what I said... 26A of the petition for certiorari.

Mr. Hertzberg: Right.

Yes.

Well, what he's referring to, Justice Rehnquist, when he says reasonable is the record, which is reflected at Joint Appendix page 67.

There are the court's concerns articulated.

At page--

Unidentified Justice: Well, but I think that it's very difficult to read that sentence that way.

It starts out,

"Since the entire basis of a summons proceeding was to obtain material for a tax investigation, the court thinks it reasonable. "

It doesn't say any reference to the facts shown here.

It's just the idea if you're getting this material for a tax investigation, you ought to follow the rules.

Mr. Hertzberg: --Justice Rehnquist, in context... with all due respect, in the context of the record that was adduced, what the court is saying there is that because the government said they wanted it for a tax investigation and because my order would allow the government to use it for that proper purpose but not for an improper purpose, I am imposing the restriction.

That is... That is precisely the context of that remark by the court.

And it's further amplified--

Unidentified Justice: Well, that just means that I'm going to make the government obey the law.

Mr. Hertzberg: --Well, but it's more than that, Justice White.

Because in this case, as both courts below found... as both courts found below, there was ample reason to believe in this sul generis case, as the district court stated--

Unidentified Justice: What page of the Joint Appendix are you--

Mr. Hertzberg: --Page 67.

Unidentified Justice: --All right.

Mr. Hertzberg: The colloquy there, particularly that of the court.

The court misspoke on the third line where it says,

"The IRS and the United States in general carrying on litigation. "

He meant the IRS and the Church of Scientology.

Unidentified Justice: Mr. Hertzberg, what did--

Mr. Hertzberg: Could I just add one thing, please?

Unidentified Justice: --All right.

Mr. Hertzberg: I just want to stress as emphatically as I can, that the issue before this Court, is the inherent power of the court.

Not the strength of the record.

The government lost below on the strength of the record.

The stark issue that they posed by the petition is, is the court under any circumstances... strong record or not... permitted to issue this kind of order?

And I don't think that this Court should be reviewing the record in that context.

The only question that the Court was asked to resolve by the government is does the court have the power, assuming there is a sufficient record.

As the courts below found--

Unidentified Justice: As it happens, that's what my question goes to.

That happens exactly to be it.

Section 552 of the Administrative Procedure Act authorizes a court to order the production of records from an agency.

The same section says that agencies don't have to turn over law enforcement investigatory records if they would, among other things, endanger the life or physical safety of a law enforcement officer.

Now, suppose a court has a refusal by the FBI to turn over some information on the ground that it would... it would endanger witnesses or law enforcement agents.

And the requestor happens to be someone who has mob connections.

And the court says, well, gee, I don't really know whether it would endanger or not.

But, just to be sure, I'll order the production of the documents.

But you shouldn't give them to anybody else.

Or, it puts some other condition on them.

Do you think a court has inherent power to do that?

Mr. Hertzberg: --If... yes, it does.

If--

Unidentified Justice: Is that right?

Under the APA?

Do you know any court that's ever done it under the APA?

I always thought the choice was you either turn it over or you don't turn it over.

If you have enough doubts, you don't turn it over.

You can't say, we'll turn it over, but--

Mr. Hertzberg: --I would distinguish... I can't cite a case, Justice Scalia--

Unidentified Justice: --No, I don't think... I don't think--

Mr. Hertzberg: --But I would distinguish the hypothetical--

Unidentified Justice: --Trust me.

I bet you there aren't any.

Mr. Hertzberg: --Okay.

Unidentified Justice: Now, why is this different from... here you have a statute that's... that's in most respects similar.

Why is it different from the--

Mr. Hertzberg: It's different because the Internal Revenue Service comes to the district court for enforcement of the summons.

The summons cannot be enforced without the authority of the district court.

And, for instance, the statutes under which the Internal Revenue Service must move to get summons enforcements... those are 7402(b) and 7604(a) of the Internal Revenue Code... say, by appropriate process the district court may enforce a summons.

The IRS must come to the district court and the moment that they do, and the moment the concept of appropriate process is implicated, at that time we submit that the court has inherent power, if it is satisfied by the showing made before it, as it was in this case, to insure that his process is not abused later on.

And the government has not demonstrated any way... the quibble with the record, but I submit again that's not the issue before this Court.

The legal issue before this Court is, is the Court... does it have that inherent power or is it utterly without that inherent power?

Unidentified Justice: --You've told me why this distinguishes your case from the Freedom of Information Act.

Why can't you say the same thing under FOIA?

We want to make sure that our process isn't abused.

We are... we are compelling the agency to produce these documents, as we're authorized to, and we want to be sure that this process isn't abused.

So, we're telling you don't turn over the name to the mob on pain of being in contempt.

Mr. Hertzberg: I'm not... I must say I'm not following the... the--

Unidentified Justice: Well, I'm just saying the principle that espousing would whenever the court issues an injunction or any sort of order for the obtaining of records.

Are you prepared to say that it is that generally applicable?

That whenever, under any statute, a court has the authority to compel the production of records it may condition the receipt of those records?

Mr. Hertzberg: --I don't see why it wouldn't have that power.

Pursuant to the inherent power of the court, I don't see why it would not.

If it has adequate reason to believe that its process could be abused, I don't see why it would not.

On the--

Unidentified Justice: Well, if Congress... Congress though in a statute, in the summons statues, they set the ground rules... they impose the confidentiality and say what's going to happen if you break the law.

Why should the judge be able to supplement that statutory regime?

Mr. Hertzberg: --The court is not supplementing it, Justice White.

The court is in fact aiding and seeing to it that that statute and other statutes are obeyed.

The statutory scheme not only in 6103 but, for instance, such as in 7206 of the Internal Revenue Code which sets forth the precise narrow grounds on which a summons may be issued by the Commissioner of the Internal Revenue Service, implicates a valuation by the district court as to whether the summoned material is going to be used for a proper purpose.

And the government must go to the district court and it must say we want enforcement.

And by the way, the interests... what we're suggesting we think also strikes a perfect balance... the government is saying it's all or nothing.

The... the... in effect, with their argument, at worst for us there would have to be a remand to the district court if it was without power to issue the protective order that it did to determine whether it wants to deny enforcement under the circumstances.

But we think the kind of order that was well-reasoned and entered into this case strikes a perfect balance.

It gives to the Internal Revenue Service the materials it sought for the summons purposes that it wanted it.

But it insures, when it feels that there's a danger that it might be abused, and it at the same time insures that the court's process will not be abused and that the summons materials will not be used for an improper purpose.

We would think, actually, that the government would be in favor of this.

It historically poses the question of whether there has to be summons denial or not.

And, in fact, the government says that there are instances where summons are denied.

We think that if their all-or-nothing test is adopted, perhaps there will be more denials of summons, because district courts will then be without the option of deciding that they can take a middle ground, as the court did in this case under the circumstances which were well-warranted.

Unidentified Justice: Well, a judge can say I'm sure that they'd be more likely to obey me than the statute?

Mr. Hertzberg: Well, Your Honor, that question subsumes that the court just did this automatically in a vacuum, and it did not.

There was a record, and it does... it does perhaps subsume that.

Perhaps that is exactly what is necessary, that district courts admonish or remind the government of what their obligations are.

Unidentified Justice: And set up a regime where they could punish the breach of their order.

Mr. Hertzberg: That's correct.

That's right.

And we feel that that would be well-warranted under the... and so did the Ninth Circuit, under the circumstances of this case.

Unidentified Justice: Counsel, if we can go back to the crime-fraud exception for a moment.

Mr. Hertzberg: Yes.

Unidentified Justice: Is it your position that the government simply submitted excerpts of the tape and, therefore, it's not in a position to complain that it was error for the court not to listen to the whole tape?

Mr. Hertzberg: That I don't think is the issue before this Court, Justice Kennedy.

But, in fact, what happened was... that is not the reason we say that the court could not hear the whole tape.

To answer your question, that is not the reason why the court couldn't hear the whole tape.

We submit that without--

Unidentified Justice: But you think that on this record the failure to listen to the whole tape is properly before us?

Mr. Hertzberg: --It is not.

It is not before you.

That issue was not reached by the Ninth Circuit below because--

Unidentified Justice: Because on the excerpts were submitted?

Mr. Hertzberg: --Because... for two reasons.

Because the Ninth Circuit did not review the government's... the issue of the government's belated submission relying on the whole tapes.

And it relied only... it only looked at the independent evidence.

Unidentified Justice: I understand that.

Mr. Hertzberg: And it did not find, even under the independent evidence test, sufficient... it did not find sufficient allegation of wrongdoing, of illegality.

And it didn't go beyond that.

Unidentified Justice: Thank you, Mr.--

Mr. Hertzberg: The issue of the entire--

Unidentified Justice: --Mr. Hertzberg, your time has expired.

Mr. Horowitz, you have seven minutes.

Mr. Horowitz, can I ask you a question before you get started because it's, you know, been troubling me ever since you sat down.

The statute says by appropriate process such attendance, testimony, production of books, papers, and records.

Do you think a trial judge would have the authority to allow a responding party to produce summaries rather than original documents?

Say, he asked for all the accounting records of General Motors or something.

They could say, well, we'd like to give summaries.

And then set up a procedure for verifying the summaries?

REBUTTAL ARGUMENT OF ALAN I. HOROWITZ ON BEHALF OF PETITIONERS

Mr. Horowitz: My immediate reaction is no.

Unidentified Justice: That wouldn't be--

Mr. Horowitz: I don't think they do.

And I don't think that has anything to do with the language in the statute by appropriate process.

They're just talking about the court's ability to bring other parties before the court or to enforce its order of--

Unidentified Justice: --Or production of books, records, papers, or other data?

Mr. Horowitz: --Well, that's the way--

Unidentified Justice: You would say--

Mr. Horowitz: --the way the court can compel--

Unidentified Justice: --But you said they could not substitute an interrogatory or summary procedure, or something like that?

Mr. Horowitz: --No, I don't think so.

Unidentified Justice: Okay.

Mr. Horowitz: Getting back to what I said before, there's a summons there and if the IRS is entitled to enforcement, the court is supposed to compel enforcement of the summons, not change it.

And there has been litigation on that kind of subject.

I'd like to talk briefly about this idea of abuse of process because it seems to me this is just the core of Respondents' argument.

Is that the notion the courts have an inherent authority to prevent abuse of their process basically gives them carte blanche in whatever sort of order they want in a case like this.

We don't deny there's inherent authority to control abuse of process, but there's nothing like that going on here.

This is discussed at great length by this Court in Powell case and follows through in subsequent summons enforcement cases.

We know what abuse of process is in this context and it is the issuance of a summons in bad faith for an illegitimate purpose that is not encompassed by the congressional grant of authority and the other is sort of power criteria.

If the court were... if the IRS were to get a summons under the circumstances where it did not satisfy those criteria, that would be an abuse of the court's process, and the court is entitled to protect itself against that.

And that's why there is a summons enforcement proceeding.

In this case, and in most cases, the court looked at those criteria and it found... and it found quite unequivocally that there was no bad faith.

That the IRS was entitled to enforcement of its summons.

That ends the abuse of process inquiry, and it does not give this kind of carte blanche for the court to go out there to see what the IRS is going to do with the documents down the road.

And I should mention, I guess, that all through summons enforcement law you see that the court does not really take it upon itself to worry about what the IRS does with documents down the road.

In the LaSalle case, of course, there was a great controversy over whether the summons should be enforced there because of the danger at that time information would immediately infringe on criminal discovery and the role of the grand jury because there had already been a criminal referral in effect.

But, of course, in the typical IRS investigation where there is no criminal referral in effect, documents are furnished to the IRS pursuant to a summons and then later on down the road, a year later, a year and a half later, the case may be referred to the Justice Department for criminal prosecution.

And that information that came through the summons goes to the Justice Department at that point.

And there's nothing wrong with that.

That doesn't show abuse of the court's process or bad faith, or anything like that.

The idea of the summons enforcement proceeding is to decide at that time whether the summons should be enforced.

As far as the benignness of this particular restriction, we think the real problem here is that there is no way to draw a line between the kind of restriction that the court imposed here and much broader and more intrusive restrictions.

If the court has the authority to monitor the IRS' investigation, as the Ninth Circuit says, then there will be other... a lot of litigation and a lot of other restrictions that are very damaging.

Just to quickly summarize the attorney/client issue.

Of course, we don't concede that there is any independent evidence requirement.

When I was induced to concede that the district court would have to at least have some evidence before it made an in camera inspection, there's certainly no reason why that evidence has to be independent in the sense that Respondent was talking about.

Neither the court of appeals nor Respondents have given any reason why there should be such a rule, and we suggest that there shouldn't be one.

But, again, the issue in this case is whether the court is precluded from ever looking at so-called nonindependent evidence before it decides whether the attorney/client privilege should be taken away because of crime-fraud.

Thank you.

Chief Justice William H. Rehnquist: Thank you, Mr. Horowitz.

The case is submitted.

Unidentified Justice: The honorable Court is now adjourned until tomorrow at 10 o'clock.

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United States Dept. Of Justice v. Julian - Oral Argument

Wed, 13 Apr 2011 20:09:49 +0000

Case:

United States Dept. Of Justice v. Julian

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86-1357_19880119-argument.mp3

Related Transcript:

86-1357_19880119-argument.xml

Transcript:

ORAL ARGUMENT OF EDWIN S. KNEEDLER, ESQ. ON BEHALF OF PETITIONERS

Chief Justice William H. Rehnquist: We'll hear argument first this morning in No. 1357, United States Department of Justice versus Kenneth Michael Julian and Margaret J. Wallace.

Mr. Kneedler, you may proceed whenever you're ready.

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

The question in this case is whether copies of presentence reports that are in the possession of the Parole Commission are subject to mandatory release under the public disclosure provisions of the Freedom of Information Act.

The presentence reports have long been regarded as highly confidential documents.

That confidentiality protects the ability of the probation officers who prepare the reports to obtain information from various sources.

For this reason, the courts have uniformly held that presentence reports are not routinely available to persons who might seek to discover contents for use in litigation.

We submit that this governmental privilege permits the Parole Commission to withhold their copies of presentence reports from the general public under Exemption 5 of the Freedom of Information Act.

Respondents concede that presentence reports are highly confidential documents and that they are almost invariably exempt from mandatory release under the Act.

But they submit that because they are the subjects of the presentence reports, the persons about whom the reports were prepared they have a special right under FOIA that isn't shared by any other member of the public to read those reports.

It is our position in this case that that argument is inconsistent both with settled principles under the Freedom of Information Act, and also with settled principles covering disclosure of presentence reports.

Unidentified Justice: Mr. Kneedler, there are provisions of the Parole Commission and Reorganization Act that specify certain types of information in the reports that I guess both sides agree may be deleted or excluded from any report before release.

Mr. Kneedler: That's right.

They can't even be shown to the defendant.

Unidentified Justice: Right.

So what is left then in the report that the Government is particularly concerned about protecting after the deletion of those sensitive things?

Mr. Kneedler: Well, the reports contain a wealth of information concerning the individual's background, but also the background of his family, his relationships with associates, employers.

There's a lot of information that is personal both to the defendant and others.

Unidentified Justice: Well, I suppose most of that would be covered by Exemption 6?

Mr. Kneedler: It may or may not be.

It depends.

Unidentified Justice: I'm just wondering what's left after you take out the sensitive things and take out what Exemption 6 covers.

Mr. Kneedler: Well, there's also information that's furnished by sources of information that may not be regarded as so confidential that the defendant can't even see that information.

If it was that confidential, then that could be withheld under one of the provisions to which you're referring.

But there's also a more general desire to maintain confidentiality to encourage sources to come forward.

Because as the Administrative Office explained to the Parole Commission when they were considering whether to change their policy, all sources of information are told what they furnish to the probation officer will be shown to the defendant and shown to the attorney for the Government, but that the defendant cannot keep a copy of it.

And that it will be disclosed beyond that initial showing only with the consent of the Court.

And this affords the sources some sense of protection and confidence that the report that contains their disclosures will not be passed on by the defendant, for example if he gets a copy of it, to third persons who might use it.

Unidentified Justice: What's to prevent him from making a copy for his own use or his counsel from making a copy in these days of copying machines.

Mr. Kneedler: Well, the rules do not permit that and the standard procedure, Rule 32 C at sentencing, for example, says that the defendant and the counsel for the Government may read a copy of the report.

And that's the word that the Rule uses.

And when the Rule was proposed, this Court's version of the Rule stated that all copies of the report must be returned to the Court and copies could not be made.

Congress modified that to permit the Court, in its discretion, on an occasional case to let the defendant keep a copy of the report.

But Rule 32 specifically says all copies of the report must be returned to the Court.

And for the defendant to make a copy of it would be directly inconsistent with that requirement that they be returned.

Unidentified Justice: But the Rule doesn't apply to the Parole Commission, I gather?

Mr. Kneedler: No, but the Parole Commission from the outset has followed directly parallel procedures.

And this makes a lot of sense, because when the Parole Commission Act was passed in 1976, Congress saw it as a continuation of the sentencing process.

The Court sets the sentence within a range typically, and then the Parole Commission decides how much of that the defendant will serve.

Unidentified Justice: Yes, but it makes it very hard to argue that it falls under Exemption 3.

Mr. Kneedler: Well, we submit that it does because Rule 32 specifically provides that the report is to be returned to the Court upon the completion of sentencing, and obviously the defendant can't get a copy of the report from the Court unless the Court in its discretion permits him to do so.

That same authority to withhold, we submit, attaches to the report as it's transferred to the Parole Commission.

Our basic submission in this case--

Unidentified Justice: Do you have any case that upholds your position on Exemption 3?

Mr. Kneedler: --There's no case specifically relating to the presentence reports, no.

But the express requirements of Exemption 3 are met in this case.

Exemption 3(b) refers to statutes that refer to particular matters to be withheld.

This is a statute that refers to particular matters to be withheld, presentence reports, and those are the specific requirements.

Respondents say that because Rule 32 speaks to the Court and doesn't expressly refer to the Parole Commission, that it's not an Exemption 3 statute.

Exemption 3(b) does not require that the statute on which withholding rests specifically refer to the agency that happens to be in the possession of the report, and that requirement would make no sense, because the statute speaks to the document to be withheld and reflects an assessment by Congress as to whether that document should be withheld.

Unidentified Justice: Doesn't that exemption also require that either the inability to obtain it be absolute or that the specific standard for making it available be set forth?

Mr. Kneedler: No.

Unidentified Justice: What's the specific standard here?

Mr. Kneedler: There are actually three separate subparts to Exemption 3.

Exemption 3(a) refers to situations in which the report can be withheld in the manner that leaves no discretion.

Exemption 3(b) has two alternatives.

One, the statutes that refer to particular criteria, and the other in the alternative, the statute can refer to particular matters to be withheld.

Those are in the alternative.

In this case, we're relying on the part of the statute that refers to particular matters to be withheld, presentence reports.

That part does not require that the statute also contain criteria.

What Congress was aiming at was narrowing the categories of information that could be withheld.

And what it said is, well, if the statute specifically tells the administrator how to decide what to withhold, that's an exemption 3 statute.

Or as here refers to a particular document.

And Rule 32 specifically refers to presentence reports.

Unidentified Justice: Doesn't that last exemption have to be absolute, that is, matters to be withheld.

Doesn't it mean matters to be withheld absolutely?

Mr. Kneedler: Well, if that were true, it would be redundant with respect to Exemption 3(a) which does require that it be absolute and that there be no discretion.

Exemption 3(b) for instance in the CIA v. Sims, which was a 3(b) statute case, the Court recognized that the Director of the CIA had the discretion to release information that he was charged with protecting, and that was committed to his discretion, and that did not undermine the 3(b) status of the report.

And 3(b) is particularly apt in this case we think because Congress specifically focused on the question, really the question in this case, whether the subject of the report should have a right to receive a copy of that report.

And Congress, like this Court, in promulgating the rule decided that he should not.

Our basic submission in this case, though, is that these reports are protected by Exemption 5 of the Freedom of Information Act.

Exemption 5 refers to inter or intra agency memorandums that would not be available by law to a party in litigation with the agency.

And the Courts have uniformly held, as I mentioned before, that presentence reports are not routinely available to persons seeking to discover them for use in pending litigation.

Unidentified Justice: But I guess there is a split of authority on whether they are inter-agency or intra-agency memorandums.

Is that right?

Mr. Kneedler: There's not a split of authority on that question.

Respondents argue that they are not covered by that.

The Court of Appeals in this case, although respondent Julian argued that, the Court of Appeals didn't address it, and the District of Columbia Circuit, in the Durns case, held that they are.

And we think that that's pretty clear in this case.

The phrases inter agency and intra agency memorandums, as we see it, was designed to refer to materials that are kept internal to the Government.

And as the D.C. Circuit said in the Ryan case which is really the leading case on construing this phrase, there's no indication that Congress intended those to be rigidly exclusive terms, but rather were intended to encompass materials that are incorporated into the deliberative process of the agency.

And here we think that's particularly clear because Congress has in effect recognized that the probation officer prepares the report for the Parole Commission as well as the Court, directed the probation officer to furnish it to the Court, and directed the Parole Commission to consider the report as part of its deliberative process.

In fact, it's really the most basic document traditionally that the Parole Commission and the Bureau of Prisons rely upon.

Unidentified Justice: Mr. Kneedler, you can't say that just incorporating it into the deliberative process is the criterion.

You can get a memorandum from the National Association of Manufacturers that the agency considers, and--

Mr. Kneedler: Right.

It can't be just something volunteered by an outsider.

But here, Congress has effectively made the probation officer part of the deliberative process by directing that he furnish the report that he has made to the Parole Commission.

Unidentified Justice: --Do you think it could encompass an NAM memorandum if the law required the agency to consider NAM memoranda?

Mr. Kneedler: Well, I think it would depend on whether the statute effectively made the NAM part of the Government's decisionmaking process.

It would be one thing if they said, consider as under the APA, an agency would typically have a duty to consider comments submitted by any outsider.

We're not arguing that.

What we are arguing is where the entity outside the Government submits something to the agency, effectively as an agent of the Government, not as an outsider, then Exemption 5 applies.

As we cite in our brief, there are cases from four or five circuits that have uniformly held that submissions by outside consultants or experts that are retained by an agency in a particular occasion to submit reports to an agency in connection with some project, that those reports are covered by Exemption 5.

Because Congress recognized that the deliberative process occasionally requires an inclusion of materials obtained from outsiders.

Unidentified Justice: But the are in those consultant cases, the consultants are really working for another agency in any case.

They are part of the executive branch.

Mr. Kneedler: Well, not necessarily.

In a number of cases we've referred to, these are private persons who are in effect part of the agency.

This is on intra agency rationale, the outside consultants are really part of the agency for that purpose because it's necessary for the agency to use their services in connection with a deliberation.

As we point out in our brief, this view is also reflected in the background of FOIA itself.

Both as this Court recognized in Weber Aircraft for example, the Machin Privilege which protects reports concerning aircraft accidents, the Machin Privilege was specifically considered by Congress and one that Congress intended to make applicable under Exemption 5.

Well, in Machin itself, the witness statements that were involved were statements of outsiders.

They were not statements of... perhaps some of them were but the principal focus was on a report that was not submitted by a person in the agency.

And other privileges under Exemption 5 such as the work product privilege, it would be odd to cut the privilege off depending upon whether the person submitting a statement was in the Government or outside.

So there are a number of privileges where the agency might have to rely on some materials submitted from outside, and for that purpose, the submitter is regarded as part of the agency.

With respect to the further requirements of Exemption 5, as I've said, I think now eight circuits have made clear that presentence reports are not routinely available to person seeking them in civil discovery.

And the test under Exemption 5 is whether a document is routinely or normally available to a person on civil discovery.

Not whether it might be made available to a person who has a special connection with it or a special interest in it, or a special need for it.

Unidentified Justice: Are those cases where the defendant after incarceration is suing to get some change in his status and requests through discovery a copy of this report?

Mr. Kneedler: No, the cases that we've relied upon have generally been where third parties have sought copies of the reports, either in connection with pending civil litigation or in some cases in criminal litigation where the defendant has sought the report of a Government witness or a codefendant.

But again the test under Exemption 5 is whether they would normally be available.

Unidentified Justice: But one would think though, just as a matter of off the top of the head so to speak, that if the sort of suit was brought that I described, that probably this would be available to a plaintiff suing the Government.

Mr. Kneedler: Well, it depends.

In the sort of case, you're describing it may be.

For example, if the defendant is suing the Government in a way that relates to the presentence report and he could make a showing of special particularized need for the report, he could obtain a copy of it then.

Unidentified Justice: But why shouldn't that defeat Exemption 5?

Mr. Kneedler: Because the subject of the report just like any member of the public could get a copy of the report only upon a showing of special need.

It's not routinely handed out as a matter of course.

Unidentified Justice: Well, nothing is routinely handed out in litigation.

I mean, you have to go through the discovery process.

Mr. Kneedler: That's right.

But I mean, it's not routinely made available.

It is privileged and the person seeking the document in the litigation with the agency would have to show a special need for it.

That he couldn't obtain the information from some other--

Unidentified Justice: Well, then are you saying then that for the number of Section 5 or subsection 5 privilege to attach, it's enough that in the litigation where the person would ultimately obtain discovery, they have to make a showing that they need it?

Mr. Kneedler: --Well, that's the general rule under Exemption 5.

In fact, under Grolier, the Court faced a very similar situation.

There the argument was made that a court in previous litigation involving the subsidiary of Grolier, itself, the requester, had ordered the disclosure of the particular documents on the ground that the plaintiff there had made a showing of particularized need.

And the argument was made then in the FOIA case that that prior order demonstrates that the document shouldn't be withheld because it had been ordered disclosed in discovery.

The Court said no, that isn't the test.

The question is whether it would be routinely available, not the question of whether it would be made available upon a special showing.

And in this case, the only times that the defendant sees a copy of his presentence report are where Congress has in effect deemed him to have made a special showing.

Unidentified Justice: Well, Mr. Kneedler, do you take the position that the Parole Commission may not give a copy to the defendant if it chooses to do so?

Mr. Kneedler: No, we don't.

We don't take that absolute position.

And that was the subject of our filing in the Crooker case.

And we continue to abide by that position.

And that's the se are agency records.

We do acknowledge that.

But by the same token, we think that the Parole Commission is not obligated to turn them over to the defendant--

Unidentified Justice: Could the defendant possibly get a copy under the Privacy Act?

Mr. Kneedler: --No.

The Privacy Act permits an agency to exempt certain systems of records from the provisions of the Privacy Act.

And in this case, the Parole Commission and also the Bureau of Prisons have exempted the files containing the presentence report from the Private Access provisions of the Privacy Act.

And it seems to us to be quite anomalous if the defendant has no private right of access under the Privacy Act which was designed for that purpose, that he should be able to invoke the public access provisions of the Freedom of Information Act to obtain a copy of the report.

And going back to the question you asked, Justice O'Connor, it seems to us that where the document really has a dual status, it's an important essential document for the Court and an essential document for the Agency, it makes no sense for the Parole Commission, either voluntarily or for it to have to under FOIA to disclose a document that the Court would not disclose.

And therefore the Parole Commission has tried to reach a harmonious approach in this area, whereby it will not release a copy of the presentence report to the defendant if the Court wouldn't do it.

Otherwise, they would be working at cross purposes.

And there's no indication at all in the legislative history of the Parole Act that that was somehow prohibited to the Parole Commission, that it had to routinely dispense with the confidentiality of reports.

Unidentified Justice: Mr. Kneedler, can I ask you a question.

Supposing, just looking at the language of Exemption 5, supposing the inmate brought some kind of an action against the Parole Commission claiming he was entitled to more of a hearing given certain information based on certain information that was in his presentence report, and that the presentence report was clearly relevant to the charges he made, and that what he needed to see was not part that could have been withheld from him but would have been ordinarily disclosed to him, would that not routinely be made available in a case like that?

Mr. Kneedler: Well, I think no.

I mean, the test is whether he would have a special need for it.

Unidentified Justice: Well, the need is it's relevant to the lawsuit, that's the special need.

Mr. Kneedler: It's relevant but the question--

Unidentified Justice: Which is generally the test in any discovery proceeding, it's got to be some showing of relevance.

Mr. Kneedler: --But it's quite clear that presentence reports are not generally available.

Unidentified Justice: But also you don't have an awful lot of litigation between inmates and the particular agency having custody of it.

But when there is litigation between the inmate and the agency and it relates to something in the report which he had a right to see but not keep earlier, why wouldn't that routinely be made available.

That's what I want to know?

Mr. Kneedler: Well, what might happen is that the Court might readily find that he has a special interest in it, and a special need to see it because the litigation relates directly to the presentence report.

Unidentified Justice: But the fact that it's needed in litigation would in those facts constitute the kind of special need that you're talking about?

Mr. Kneedler: Yes, because that directly parallels his right to read the report at sentencing and again prior to his parole hearing.

Congress determined that because the presentence report is the basic document, he has a special need to see it.

But he can't keep it.

He has to give it back again.

Unidentified Justice: The special need arises out of his status as a litigant.

Mr. Kneedler: No, his special need arises out of the fact that he presentence report is placed in issue in the case concerning him in particular.

Unidentified Justice: Right.

Mr. Kneedler: He might have a suit against the Parole Commission or the Bureau of Prisons that does not relate to his presentence report.

Unidentified Justice: And it wouldn't be routinely available because it wasn't relevant.

Mr. Kneedler: Well, it might still be relevant, and even under the Civil Discovery Rules, it doesn't have to necessarily be admissible.

It just has to perhaps lead to other information.

Unidentified Justice: I just can't imagine a trial judge turning down a request to see a report that he had a right to see earlier in a discovery situation.

Mr. Kneedler: Well, the Court might well take that into account in deciding whether the defendant should be able to see it.

But I would expect for example in a case like that that the Court again would not just hand him a copy of the report.

I think the Court would probably parallel what happened before when the defendant tried to see the report.

Let him read it, let his lawyer in this private civil suit read it, but not let him retain a copy of it.

Unidentified Justice: Even if it was going to be an exhibit in the lawsuit?

Mr. Kneedler: Well, if it was an exhibit in the lawsuit, then the Court would be deciding that it should be admitted, but in terms of discovery.

And all we're talking about is handing it over to the defendant.

Unidentified Justice: Well, tell me something else, what really is the Government seeking to protect from... I just have a difficult time understanding what it is the Government doesn't want to turn over to somebody that has already seen the material.

Mr. Kneedler: It's the question is turning over the document itself.

Unidentified Justice: Yes, I understand that.

Mr. Kneedler: It's the difference between the hard copy and--

Unidentified Justice: Or making a Xerox copy.

But what's the big deal?

That's what I don't quite understand.

Mr. Kneedler: --There are several considerations here.

First in terms of what it could mean to the defendant if he has the entire hard copy of the report.

As the Administrative Office stated in its submission to the Parole Commission, he has all the information at his finger tips.

He can brood about it, he can pore over it, he can look for things that may be wrong or look for persons to retaliate against.

That's much different than simply having a recollection of something he might have read.

Beyond this, if he has an actual copy of the report, there's no inhibition against his handing the report out to third parties.

And this was again one of the principal concerns that the Administrative Office explained to the Parole Commission on behalf of the judges who are part of the Probation Committee of the Judicial Conference, and also on behalf of probation officers.

They were afraid that sources of information would be more reluctant to cooperate with a probation officer if the formal embodiment of their comments were freely distributed to third parties.

Unidentified Justice: Mr. Kneedler, as I glance at the Grolier case, it looks to me as if what the Court was saying there was where you're having a claim of work product privilege, and the Court has overcome that privilege in an earlier litigation.

That does not mean that it's routinely available.

But there it's very much of a case by case thing.

You know, you have a claim of work product.

How much does the other side need it.

And here I don't see any counterpart to the work product privilege that's asserted.

Mr. Kneedler: Well, the principle under Exemption 5 is a general one that this Court has stated on three or four occasions.

It's stated in Weber Aircraft and in Sears.

The test is whether whatever the privilege is, whether it would be routinely available or not.

Unidentified Justice: But there isn't any privilege here on the Government's side, as I see it.

Mr. Kneedler: Oh, there is.

There is a Governmental privilege.

It's actually quite similar to the Machin privilege in Weber Aircraft which is a privilege to maintain the confidentiality of the information to encourage sources to cooperate with the Government.

That privilege applies to the subject of the report as well as to third parties.

Unidentified Justice: And this is a Governmental privilege that's recognized in litigation?

Mr. Kneedler: Yes.

There are a number of cases in which the Courts have declined to release their own copies of presentence reports to people who want them precisely for use in pending litigation.

Unidentified Justice: Mr. Kneedler, once you give them a copy of it to look at it, is somebody in there with him as he's looking at it?

Mr. Kneedler: The practices vary from district to district.

In some cases, as I understand it, the defendant looks at it in chambers and the judge may be present.

In others, it's furnished to him at the probation office where the probation officer may or may not be present.

Unidentified Justice: Is he allowed to take it to his office?

Mr. Kneedler: Some districts would give it to the defense counsel and allow the defense counsel to arrange for the way in which it would be disclosed.

Unidentified Justice: Well, then all the things you're worried about would have happened.

Mr. Kneedler: Not necessarily because there's--

Unidentified Justice: You're afraid that he'll show it to somebody.

Mr. Kneedler: --Well, and not just show it but distribute it.

He might show it to someone, he might distribute it.

Sources of confidential information they might feel much more secure if they knew that the presentence report was going to remain confidential as opposed to being distributed.

Unidentified Justice: I don't see how it can possibly be confidential once you show it to him.

Mr. Kneedler: No, confidential not just from the defendant but to the world at large.

And if you give a copy--

Unidentified Justice: Well, but the defendant can talk to the world at large.

Mr. Kneedler: --He can but there's a big difference as far as the probation officers are concerned, as far as they see it from the defendant being able to show an actual copy and just being able to recount what his recollection is.

Frankly, there's a greater deniability on the part of sources of information if the defendant does not have an actual hard copy.

Unidentified Justice: That's a lot of speculation.

Mr. Kneedler: Well, in a FOIA case, the test is not whether the privilege that is recognized elsewhere is thought to be wise or not.

FOIA takes the privileges as they are found, and applies them through Exemption 5, and in this case, we submit that Exemption 5 does incorporate the privilege.

If there are no further questions, I'd like to reserve the balance of my time for rebuttal.

Chief Justice William H. Rehnquist: Thank you, Mr. Kneedler.

We'll hear now from you, Mr. Glitzenstein.

ORAL ARGUMENT OF ERIC ROBERT GLITZENSTEIN, ESQ. ON BEHALF OF RESPONDENTS

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

Much of the Government's argument seems to be contending that unless Congress has in some way required it in a statute other than the Freedom of Information Act that presentence reports be disclosed to prisoners who are otherwise entitled to see them before sentencing and parole hearings, that it needn't provide copies of those reports.

But that stands the entire concept of the Freedom of Information Act on its head.

The whole purpose of the FOIA was to essentially require the Government to make available to requesters Federal agency records, unless the Government can point to a specific exemption which authorizes the Government to withhold that information.

We would submit that it is quite plain that neither of the two exemptions relied upon by the Government here, Exemptions 3 or 5, are applicable to requests by the subjects of presentence reports for copies of material they have already been permitted to see pursuant to not one but two statutory directives.

Unidentified Justice: Mr. Glitzenstein, the fact that the request is by the subject of the report is it conceded that that's irrelevant?

I mean, if you're right that the subject of the report can get it, anybody can get it.

Isn't that so?

Eric Robert Glitzenstein: Your Honor, I believe that Exemption 6 was crafted to deal precisely with the distinction between first party and third party requests.

The phraseology of that Exemption states that information shall not be released, or may not be released if in fact the disclosure of the information would create an unwarranted invasion of personal privacy.

I would submit it is quite plain that when personal information is released to the individual who is the subject of the information, there cannot in the language of the exemption be an unwarranted invasion of personal privacy.

However, if a third party seeks access to that information, there may very well be an invasion of personal privacy subject to that particular exemption.

Unidentified Justice: Well, that's true as far as personal privacy is concerned, but as far as exposing the identity of people who spoke about the individual were, what they said, and other such matters, that could be obtained not only by the defendant but by anybody, presumably.

Eric Robert Glitzenstein: I think again, it would depend upon an analysis of the particular exemption involved.

For example, if one were dealing with confidential sources, then one would look at whether Congress has in some way exempted confidential source information not only from the defendant but from the world at large.

And we would submit that it's quite clear, as we have conceded in this case, and I think as two circuit courts have now held, the confidential source material clearly can be withheld not only from the defendant but from the rest of the world as well.

Unidentified Justice: But if it has to go to the defendant, it has to go to the rest of the world, isn't that right, except for those personal matters that relate only to the defendant.

That arguably could be kept out from the rest of the world under 6.

But all the other stuff about confidential sources, if the defendant can get it, anybody can get it.

Eric Robert Glitzenstein: I believe that's basically our argument, yes, Your Honor.

I think it's conceivable if I might just amend that partially that there could be in some instances a Governmental privilege.

I don't think one exists here, that protects disclosure from third parties but not necessarily from first parties, depending upon the kind of Governmental interest that was being articulated.

I don't think this qualifies as such a privilege as I will indicate in my remarks in a moment.

But I think it's conceivable that justice Exemption 6 may turn on whether the exemption would apply depending upon who the requester is, it is conceivable that there is privileges that are crafted by the courts for discovery proceedings could turn on the nature of the requester.

But I would say as a general rule that you're absolutely right that release of information to one party would involve release of information to the world at large.

I just have a few remarks about the Exemption 3 claim.

Because I believe it helps to put in perspective why the Government is really overreaching in this case in an effort to argue that these particular documents are exempt from their subjects.

As we have argued in our brief, Exemption 3 was amended in 1976 for the precise purpose of very carefully narrowing the kinds of statutory schemes that would qualify as withhold statutes under the particular exemption.

As it is now crafted, as Mr. Kneedler pointed out, it only covers information that specifically is exempted from disclosure by statute providing that the statute either a) requires that the matter be withheld from the public in such a manner as to leave no discretion on the issue, or b) establishes particular criteria for withholding or refers to particular types of materials to be withheld.

In crafting that language, the legislative history of the amendment makes it quite clear... and this is how it's been largely construed by the courts... particular documents cannot be withheld unless Congress has in some way told an agency how to exercise its discretion in order to release or withhold that information.

And thus where a statute does not tell an agency in some way to withhold material from a requester, the exemption does not apply.

We would submit in this case it is quite clear that as to three specific categories of information which are sometimes contained in presentence reports, Congress made that determination quite explicit.

And thus under Section 4208(c) of the Parole Act, the Parole Commission is authorized to withhold from everyone, including subjects of the reports, material revealing sources of confidentiality obtained under a promise of confidentiality as well as two other specific categories of information.

That clearly reflects Congress' judgment that that kind of information could occasion some harm if released.

It is just as clear that as to other portions of presentence reports which may otherwise be shown to the prisoner, then there is no harm that Congress foresaw in the disclosure of that information, and it did not direct the Parole Commission to decline to release that particular information.

In fact, the Chairman of the Parole Commission has himself recognized that in various documents that we have included in our brief, as well as documents attached to the Government's Petition for Certiorari.

Unidentified Justice: Mr. Glitzenstein, do you concede that a court would not be required to give the defendant a copy under Rule 32?

Eric Robert Glitzenstein: That's correct, Your Honor.

Rule 32(c)(3)(e) specifically gives the courts the authority to disclose copies, or I think in the language of that provision, to require return to the Court.

But I think that helps our case here.

Because Congress did not adopt that provision when it enacted the provisions of the Parole Act.

Tellingly, it adopted virtually every other portion of Rule 32(c) verbatim, when it enacted the Parole Act, including almost precise parallels for the three categories of data including confidential sources that may be withheld.

But it did not include the requirement that is contained in Rule 32(c)(3)(e).

The conclusion seems inescapable therefore that that was a purposeful deliberate determination by Congress to essentially authorize the Parole Commission to release copies of the reports.

And as the Chairman of the Parole Commission himself has said, the fact that the Parole Commission is authorized to withhold confidential sources suggests that in response to FOIA requests,

"in cases where there is confidential material which is not to be shown to the defendant, such material can be withheld under the FOIA, as well."

He went on to say that giving prisoners copies of presentence reports that they have already been permitted to read will pose,

"no threat to the willingness of confidential sources to come forward because the probation officer can still guarantee confidentiality under the FOIA."

Unidentified Justice: Mr. Glitzenstein, now you could say the same thing with respect to the Rule.

Could you give me some reason why it makes sense to allow the Parole Commission to do what the court is specifically forbidden from doing.

It's such an odd thing to specifically forbid the Court from turning it over, but then when the Court gives it to the Parole Commission, allowing the Parole Commission to turn it over.

And if I have a statute that arguably prevents the Parole Commission just as it prevents the Court, I'm inclined to read the law to make some sense.

Now, tell me why it makes any sense to allow the Parole Commission to do it when the court can't?

Eric Robert Glitzenstein: First of all, Your Honor, I would like to just emphasize that I think that clearly is what Congress did both in the plain language of the two statutes by not adopting Rule 32(c)(3)(e) and in legislative history of the Parole Act where it authorized independent determinations.

Unidentified Justice: You're saying Congress is privileged to make no sense if it wants to, and I agree with you.

I agree with you.

If that's what they said, that's fine.

But let's assume that I want to try to make it make sense.

Now, why would it make sense to allow the Parole Commission to turn it over?

Eric Robert Glitzenstein: I think the reason it makes sense is when you look at the purpose of Rule 32(c) was essentially to give the Court control over that document up until the end of the sentencing process.

There have been cases from this Court including Williams v. New York, other cases which have talked about the need for the sentencing judge to supervise the sentencing process.

And I think what Congress was saying was that up until the sentencing judge completes sentencing, then the sentencing judge could essentially exercise that kind of supervision and control over all of the documents that come before the Judge and are used in the sentencing process, perhaps to prevent unnecessary delay if he believes that a particular defendant will take the presentence report and do things with it that the judge may not like.

But whatever the reasons, what I think Congress was doing was splitting this up and saying, up until the time of sentencing you are using the report exclusively, and you can keep control of the materials that are being used.

But once it goes to correctional authorities and it takes on entirely different kind of significance and is used in totally distinct kinds of determinations, then we want the Federal Statutes, including the Parole Act and other relevant statutes to kick in and to control the way in which these reports are used and disseminated.

And I think in keeping that in mind, it's crucial to focus on the fact that presentence reports are not only used in parole determinations by the Parole Commission, but as our brief points out, they are used in a whole host of correctional decisions the second that that prisoner walks through institutional doors.

It's used to determine the kind of institution that person will be put in, the nature of the security that will be imposed, furloughs, what sorts of rehabilitation and correctional systems will be put into place.

Virtually every aspect of the prisoner's day to day life will be impacted perhaps by the presentence report.

And what Congress was saying was since that is the case we do not want the sentencing Court and its use of this report and control of the report under Rule 32(c) to have a continuing bearing upon what the Parole Commission does with that document and what other correctional authorities do with that document.

Unidentified Justice: All those good things you've just said, those good uses all relate to use by the particular defendant.

It's very strange for Congress to serve those purposes by saying the document shall be available to the world at large under the Freedom of Information Act, which doesn't require any particular showing of need.

It doesn't have to be the particular defendant.

It's anybody in the world.

That's a strange place to further that policy.

Eric Robert Glitzenstein: Well, first of all, Your Honor, again, I think that Congress did focus on the need of the particular defendant in passing the Parole Act, where Congress specifically required that the document be made available to the prisoner, it did not impose any limitations.

But secondly, and I think the more general answer is, the exemptions to the FOIA apply to any Federal agency record that a Federal agency happens to have ink its possession.

And the Government has conceded since the Crooker case that these presentence reports are Federal agency records.

And therefore the only way to analyze pursuant to Congressional intent, whether the document may be withheld in a particular circumstance, is by analyzing whether a specific exemption might apply.

And as I mentioned before when one is looking at giving out documents of this nature to the world at large, then Congress intended the Exemption 6 privacy analysis to be the kind of test that would be applied by courts in applying the FOIA exemptions.

And just like any other personal information that might be involved in any determination made by an agency, medical records, social security records, Veterans Administration records, the Exemption 6 test was crafted for precisely that purpose.

And I think that is the way in which courts should analyze this kind of case as well as other kinds of cases in which an individual may be permitted to obtain access to some material, but the world at large would not necessarily be in a position to do so.

Unidentified Justice: Mr. Glitzenstein, do you concede that some lower courts have recognized a sort of privilege against disclosure to third parties generally of these presentence reports?

Eric Robert Glitzenstein: Your Honor, I think it is clear that some lower courts have in some instances withheld copies of presentence reports from third parties trying to obtain them from sentencing courts.

And I think that it is very important to look carefully at what those courts said.

Because it is useful in analyzing why Grolier, why Weber, and the other cases that this Court has decided under Exemption 5 are inapplicable.

In those cases, the Courts began their analysis, and again, this is sentencing courts, usually codefendants were attempting to obtain copies of other peoples' presentence reports by specifically saying, that the usual rule when a defendant is trying to obtain his or her own presentence report is created by Rule 32 and the Parole Act, and first parties ordinarily permitted to obtain copies of their presentence reports without showing any special need, without demonstrating that they have any overriding interest in obtaining that information just by showing that it's relevant to the proceedings.

Then those Courts, and again, I'm referring precisely to the cases that are cited by the Government, Figurski, Hancock, Charmer Industries, go on to say that because Rule 32 and the Parole Act do not say anything about third party access, then we, the sentencing courts, must craft our own rules.

And in crafting our own discovery rules, we will take a number of factors into account.

One of the factors we will take into account, as those cases indicate, is the Court's desire to exercise control over the documents, because we deem them to be Court records and that they will stay court records.

In that connection, I think it's useful to quote from Charmer Industries, one of the cases principally relied upon by the Government, which says, right at the outset, that notwithstanding any secondary uses, the presentence report is a court document and is to be used by non-judicial Federal officials and others only with permission of the Court.

Went on to say that in light of the nature of the presentence report as a Court document, designed and treated principally as an aid to the Court, we conclude it would not properly be disclosable without authorization by the Court to third parties.

I think two things become quite clear.

One is that if there is any kind of recognition of confidentiality, it involves third-parties and not first parties.

And secondly, those cases are in large measure dependent upon an argument which the Parole Commission now concedes it is no longer making.

And that is the sentencing courts' continuing control over the materials.

In essence, what the Parole Commission is doing is using cases which recognize perhaps a certain kind of confidentiality but with very precise contours and based upon certain presuppositions and saying, we are going to take those cases and expand the privilege far beyond the contours that those cases themselves recognized.

That is, in cases involving first parties as opposed to third parties, and in cases involving Parole Commission discovery proceedings as opposed to situations where the sentencing court is itself the party in control.

Unidentified Justice: Is there any case which you have found in which a court has said a third party may get a presentence report after the conclusion of the sentencing process?

Eric Robert Glitzenstein: There are cases I know that have indicated that presentence reports may upon a substantial showing of need be disclosed.

I cannot recall whether those were after sentencing or before sentencing.

In some of these cases, as I indicated--

Unidentified Justice: But that's under the specialized need standard.

Eric Robert Glitzenstein: --That's correct, Your Honor.

I think every court which has looked at third party access has said that in order to give out a presentence report to a third party, there must be some demonstration of specialized need.

Again, the reasons why the Court said that are totally inapposite here.

One reason being the control of the sentencing court over the document forever, and the second reason being the need to protect privacy of the subject of the report.

But I think it is fair to say that courts will be reluctant to give these documents out because they are so personal.

And because they have so much sensitive information about the defendant to give them out to third parties without a substantial showing of need.

By the same token, it is quite clear that Congress has specifically said that when you have first parties, there need be no showing of need.

,--

In fact, the case we cite in our brief, which I think answers Mr. Kneedler's arguments quite effectively is Rone v. United States, a Seventh Circuit Case, in which the Court reviewed amendments to Rule 32(c), as well as the Parole Act that was adopted in 1976 and said these cases not only give prisoners a right to get access to these documents by initiating an FOIA request, they go even further than that.

They impose an affirmative duty on sentencing courts and on the Parole Commission to come to the defendant and say, this is material that we may very well rely upon in making a sentencing determination or in making a parole decision, and therefore, you have a right to see that document.

So these cases go beyond the routinely available standard in that sense.

They in fact declare, as well as the statutes that Congress crafted, that prisoners and defendants have an affirmative right to have these documents made available to them.

And it is therefore difficult for us to see how the Government can argue that these are not routinely available to prisoners in discovery proceedings.

The final point that I would like to make, or one of the final points I'd like to make about the Government's analysis, is that it would cut against the grain of what this Court said in the Federal Open Market Committee v. Merrill case.

In which this Court in the process of recognizing a certain kind of discovery privilege, stated that it would,

"hesitate to construe Exemption 5 to incorporate a civil discovery privilege that would substantially duplicate another FOIA exemption."

Here, it is quite clear that any conceivable interest the Government has in withholding these documents is adequately, more than adequately met by other exemptions.

As I noted above, we concede the Ninth Circuit held, the First Circuit has held, that confidential source material constitutes an Exemption 3 statute under the Parole Act, and can be withheld.

By the same token, any legitimate privacy interest clearly could be met through the contours of Exemption 6, and by applying that Exemption.

And so it's also quite possible that other exemptions would apply to specific portions of the reports.

But it is quite clear that the Government's presentence report privilege is certainly not needed because of the other FOIA exemptions.

In addition, it would do something that would have very untoward effects on Exemption 6 and the rest of the FOIA.

In effect what it would do as we read their approach to Exemption 5, is prevent individuals from ever using the Freedom of Information Act to obtain their own personal information, because the more sensitive, the more personal the information, it seems quite clear the more the Government would be able to argue that it is note quote unquote routinely available to third parties in discovery proceedings.

And that could then be used under Exemption 5 to prevent first parties from obtaining access to their own reports and their own documents.

And in that connection, I think it's quite important to focus on the fact that Congress itself saw the FOIA as a tool for obtaining first party information, that is, individuals getting their own records.

Contrary to the suggestion by Mr. Kneedler, Congress did not only look at the privacy act as the vehicle for obtaining first party information.

In fact, in 1984, Congress amended the Privacy Act for the specific purpose of saying that just because information is not exempt under the Privacy Act does not mean it would not be available under the FOIA.

And the legislative history says we see both of these statutes in appropriate circumstances as vehicles for obtaining personal information.

Unidentified Justice: Mr. Glitzenstein, the argument you just made that there are other protections which would keep away from the public or from any requester information that impinges upon some privacy right or some other Governmental interest, you can always make that argument under Exemption 5, can't you?

I mean, you can always say, hat do you need Exemption 5 for if it's really private, Exemption 6 will cover it.

If it's going to disclose informants, the Criminal Information exemption would cover it.

You can always run that argument, and you would just read Exemption 5 out of the Statute.

For some reason, the Statute says if it's an interagency or intra agency memorandum, regardless of whether these other interests are impinged or not, it won't be provided.

Eric Robert Glitzenstein: Your Honor, I think if one looks at the classic Exemption 5 privileges which the courts early on incorporated into the Exemption and the ones that are highlighted in the legislative history, one would have to come out a different way on that.

Because, for example, deliberative process privilege, which specifically was designed to protect drafts, working papers, other kinds of documents shedding light on the deliberative process, I think much of that material, and the courts have made it clear that much of that material would not necessarily be withholdable under other FOIA exemptions.

By the same token, attorney client material, attorney work product doctrine material, the two other core privileges that the Courts have incorporated into Exemption 5, I cannot see how those would for the most part be withholdable under other exemptions.

And so I think it is quite consistent with Congress' intent to see whether or not a particular withholding that the Government is interested in really goes to those kinds of core Governmental interests that could not be protected under other exemptions.

Because as this Court said in Federal Open Market Committee v. Merrill, Congress drafted other exemptions of the FOIA for the precise purpose of incorporating certain other kinds of discovery privileges which were known to criminal and civil discovery.

And therefore, it would really subvert the whole purpose of Congress drafting those other specific exemptions to lock stock and barrel put everything into Exemption 5.

In a sense, I think the Government's argument threatens to really sweep up all those other exemptions and to either make them irrelevant or worse, to essentially undercut the kinds of tests for example under Exemption 6 that Congress really wanted the courts to apply in making those kinds of determinations.

And so I think that the only way really to avoid that kind of hazard in really reading the rest of the exemptions out of the statute is by doing what the Ninth Circuit did and that is by recognizing that Congress can effectively say that particular documents are not subject a discovery privilege and that particular individuals are entitled to receive access to those documents, and thus Exemption 5 should not apply to those materials.

The last point that I would like to make involves the fact that the Government's argument under Exemption 5 reads another entire area of the law out of discovery, and that is the law of waiver.

The notion being that in basic discovery cases when the Government or some other party is arguing a privilege applies, it is generally held that when your forfeit confidentiality of the material, then you are no longer able to argue that that information should be withheld from a party in subsequent proceedings.

And I think in response to Justice Marshall's inquiries, it is my understanding that not only prisoners and their lawyers generally allowed to look at these documents, it is my understanding that the Parole Commission in most sentencing courts actually allow the prisoners and their attorneys to take notes from the copies of the documents.

So if one were really concerned about passing along information of that nature to third parties, clearly taking verbatim notes from the copies that are already provided the prisoners would involve that kind of a harm.

And that is why the Parole Commission in the documents that we cite in our briefs has said that we do not see any incremental harm, quite frankly, in giving out copies of documents that prisoners were already allowed to see on several occasions and even take verbatim notes of.

I don't mean to suggest, I want to make it clear, that we think there is a genuine risk that prisoners will take these reports and given them out to the world at large.

These contain very sensitive information about prisoners' family backgrounds, psychological characteristics, and there's no evidence o the record that prisoners are simply waiting to give this incredibly sensitive personal information out.

But if that was a concern, that is a concern which this particular exemption claim would not do anything to prevent.

As a result, for these reasons, we believe that it is quite clear that the Ninth Circuit was correct, both in its application of the FOIA exemptions, and its determination that there were no significant Governmental interests to be protected by withholding copies of presentence reports, and we therefore ask the Court to affirm the Ninth Circuit decision.

Chief Justice William H. Rehnquist: Thank you, Mr. Glitzenstein.

Mr. Kneedler, you have three minutes remaining.

ORAL ARGUMENT OF EDWIN S. KNEEDLER, ESQ. ON BEHALF OF PETITIONERS -- REBUTTAL

Mr. Kneedler: Thank you, Mr. Chief Justice.

There are several points I'd like to make.

First, the privilege at issue here is not a privacy privilege as respondents repeatedly suggest.

The reason why, and we point this out in our reply brief and a number of cases say this, the reason why courts do not disclose presentence reports to parties seeking to discover them in litigation is not the privacy of the defendant, that may be subsumed.

the overreaching rational is the Governmental interest, Governmental privilege in protecting the free flow of information to the Government, to the probation officers.

rationale applies equally to giving a copy of the report to the subject of the report as it does to third parties.

Also, the nature of the privilege requires that it be as absolute as possible, so that the sources of information will have confidence that their information will be tightly held.

And in fact, as the Administrative Office pointed out to the Parole Commission in the rulemaking proceeding, sources of information are specifically told that their information will be only shown to the defendant and not made available to third parties.

Unidentified Justice: Well, it's not really absolute.

This exemption is not mandatory.

The Government, even if we agree with you that the exemption applies, the Government need not invoke it.

Mr. Kneedler: No, it's but that's true of a lot of privileges.

The Government may choose not to.

And related to that is the second point I wanted to make.

Respondents make something of the point that the cases we rely on refer to disclosures by the sentencing court, and not the Parole Commission, and somehow they are different considerations or different uses by the Parole Commission.

First of all, the use is essentially the same.

The presentence report is the essential document on which the sentencing decision is made, the parole decision is made and incarceration decisions are made.

But beyond that, the purposes of the privilege are precisely the same in both contexts.

The purpose of the privilege is to protect the integrity of the document by securing the information from the sources.

That purpose applies equally to whether disclosure is made by the Parole Commission or by the sentencing court, and in fact, the probation officer makes the report for the Parole Commission as well as the sentencing court.

The third point I want to make is that respondents are arguing for an exception to a general privilege under Exemption 5 of the Freedom of Information Act, an exemption which they essentially concede applies to members of the public.

Exemption 5 as Judge Wald said in her dissenting opinion in Durns permits no such distinction between the requesters unlike Exemption 6.

But more importantly, if there was any doubt about the existence of a special exemption, it's dispelled by Rule 32(c) in which Congress focused on the precise question here, whether the subject of the report has a right or should have a right to get it, Respondent's position would completely undermine that decision.

Chief Justice William H. Rehnquist: Your time has expired, Mr. Kneedler.

The case is submitted,--

Attribution:

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Featured:

Pennsylvania v. Ritchie - Oral Argument

Fri, 09 Jan 2009 14:48:27 +0000

Case:

Pennsylvania v. Ritchie

Media File:

85-1347_19861203-argument.mp3

Related Transcript:

1986_85_1347_argument.xml

Transcript:

Argument of Edward Marcus Clark

Chief Justice Rehnquist: We will hear argument now in No. 85-1347, Pennsylvania against George F. Ritchie.

Mr. Clark, you may begin whenever you are ready.

Mr. Clark: Thank you, Mr. Chief Justice, and may it please the Court, this case is before you today on a writ of certiorari to the Supreme Court of Pennsylvania.

The Commonwealth has contended in our brief that the Intermediate appellate court and the Supreme Court of Pennsylvania erroneously construed and misapplied two very important segments of the Sixth Amendment jurisprudence of this Court, and in the process effectively have dismantled a very elaborate statutory procedure erected to encourage more complete reporting of what has become a very shameful and often secret crime, the sexual abuse of children.

Specifically, the court below erred, we contend, in concluding that the compulsory process and the confrontation clause invariably requires that a criminal defendant in a sexual offense case such as this must be given pretrial access to confidential records compiled by a child protective service agency notwithstanding the fact that the records were never used or employed by the prosecution at any stage of the proceeding.

Before we address the merits of those contentions, Your Honors, I would request the Court's indulgence in view of the fact that the respondent here has interposed a challenge to this Court's jurisdiction under the so-called final judgment rule it Title 28, USC Section 1257.

In view of that I would like to briefly summarize the factual and the history of this case in order to set the context for argument on that issue.

Respondent was charged in a four-count information with rape, incest, involuntary deviant sexual intercourse, and corrupting the morals of children.

The charging document alleged a course of conduct that spans some four years.

The specific criminal episode giving rise to the charges, however, occurred in June of 1979.

Prior to trial, respondent initiated discovery proceedings seeking, among other things, results or reports involving a medical examination counsel believed had taken place regarding the victim in this case.

Subsequently he issued a subpoena to the Children and Youth Services Agency of Allegheny County seeking review and total access to their confidential records pertaining to the victim.

The agency chose not to surrender those records to the respondent based on that subpoena, and as a result respondent's counsel, trial counsel filed a pleading called a motion for sanctions and a hearing was convened at the trial court level.

At the hearing, respondent informed the trial court that he had to have access to these medical records in preparation for trial, and also that he was aware that there had been conversations between the complaining victim and a Children and Youth Services caseworker.

In addition to those alerts, red flags for the court below, respondent's counsel also said that there is possible witnesses, witnesses not known to the defendant.

There could be witnesses in those records that could be useful in my defense, matters that could be favorable to the defendant.

Based on that presentation the trial court denied relief, denied access to these records, and characterized, I think correctly, the assertions or the offer of proof by respondent's trial counsel as too vague and nonspecific.

Of course, as the Court is aware, respondent proceeded to trial, was convicted by a jury, and ultimately sentenced to a term of imprisonment.

The intermediate appellate court of Pennsylvania, the Superior Court, without having considered or having access to the notes of testimony from that pretrial hearing, concluded that the procedures employed by the trial court below failed to protect the respondent's confrontation rights, his privileges there.

A remand was ordered and the trial court was directed to review these records for purposes of determining whether or not there was a statement by the victim pertaining to abuse.

So far so good as far as the commonwealth is concerned.

But inexplicably the court determined that respondent's counsel must be given access to the entire file, unexpurgated, unexcised, to determine whether or not... in order to be able to present argument concerning relevancy.

Unknown Speaker: Incidentally, Mr. Clark, Act 1975 was amended, was it not?

Mr. Clark: I am sorry, I am not familiar with that Act.

Are you speaking of the final judgment rule, Your Honor?

Unknown Speaker: No, I am speaking of the statute under which access is or is not--

Mr. Clark: Oh, under the federal rules, Your Honor.

Unknown Speaker: --Yes.

The Pennsylvania statute.

Mr. Clark: Oh, the Pennsylvania statute, yes, it was amended in 1982, Your Honor.

Yes.

Unknown Speaker: And under the ordered remand would access be governed by the old or the amended statute?

Mr. Clark: I presume it would be under the amended statute, Your Honor.

The Commonwealth wouldn't have any problem with that.

The Supreme Court reviewed this appellate decision.

Unknown Speaker: Well, you might if we thought that that was a basis for saying that the case is moot, that we now have a new statute in front of us.

Mr. Clark: Well, I don't believe the case would be moot, Your Honor, in this regard.

We have--

Unknown Speaker: Why don't you tell us why it wouldn't be.

Mr. Clark: --We don't think that the amendments to the statute effectively have altered the basic ruling by the Pennsylvania Supreme Court, which is that invariably these confidential records must be given carte blanche to a criminal defendant in this case.

Unknown Speaker: The basic change in the statute as I understand it is that henceforth the prosecutor has access.

Under the prior version even the prosecutor didn't have access to it.

Now he has access, right?

Mr. Clark: The prosecutor has access to reports which have been given by the Children and Youth Agency to the prosecutor.

The prosecutor does not customarily, in my understanding of this law, has not delivered those files.

That is not part of his investigatory tools, Your Honor.

The regulations governing access by prosecutors in this case are very explicit in terms of the kinds of crimes which require their disclosure, the forms upon which the information that is given to the police department--

Unknown Speaker: Well, if we reversed the judgment of the Supreme Court of Pennsylvania in this case the result would be that the conviction stands affirmed, wouldn't it?

Mr. Clark: --Absolutely correct, Your Honor.

Unknown Speaker: And certainly that I would think would prevent the case from being moot.

Mr. Clark: I'm sorry, I don't understand.

Your Honor is saying that this would moot the case?

Unknown Speaker: No, it seems to me that would prevent the case from being moot.

Mr. Clark: Oh, absolutely correct.

Unknown Speaker: A decision here has some effect on the rights of the parties before us.

Mr. Clark: Absolutely, Your Honor.

Absolutely.

I thank you for your assistance in that regard.

Unknown Speaker: Even though you didn't recognize it at first.

May I ask on a somewhat related question, is the respondent a fugitive?

Mr. Clark: Not to my understanding, Your Honor.

Unknown Speaker: Because I notice the affidavit for in forma pauper is indicated he was unavailable and the lawyer didn't know where he was.

Mr. Clark: I believe there is a subsequent communication with the Court, Your Honor, involving, I believe they found the respondent and he subsequently signed an affidavit attesting to his pauper status.

Unknown Speaker: I see.

He is not incarcerated now?

Mr. Clark: He is not incarcerated.

The judgment of sentence was stayed pending direct appeal rights.

We think that, not to belabor the obvious here in terms of the challenge to the final judgement rule, that the Sixth Amendment issues here have been finally litigated, certainly in the highest state court of Pennsylvania, and that there is no further review possible in our... Justice Scalia, I am sorry you are indicating your disagreement.

Unknown Speaker: Sure, you can get further review.

The state can refuse on-remand to turn over these records as the Supreme Court has said it must do, whereupon either the conviction will be set aside and we would have a final appealable matter, or some contempt sanction would be imposed upon the prosecutor or whoever is in custody of those records, and Pennsylvania would then be able to decide this question again, I presume.

I mean, what do you with United States versus Ryan, that whole line of cases?

Mr. Clark: I think in United States versus Ryan, Your Honor, those cases involve the absolute refusal to divulge and to deliver certain materials.

The Commonwealth is not in a position of arguing that kind of situation.

Unknown Speaker: That is an interesting difference, but does it bear upon whether the decision is final or not?

In Ryan you had an individual who refused to turn over records.

The District Court said you must turn them over.

The Court of Appeals said, yes, you must.

And we said that the Court of Appeals should not have even entertained the Batter because it was not final until he steadfastly refused to turn them over and was held in contempt.

Mr. Clark: That's correct, Your Honor.

I understand that.

Unknown Speaker: Now, why was that not final and yet this is final?

Mr. Clark: Well, the trial court here already had access to these records.

The Children and Youth Services agency surrendered those records, as they have a practice of doing.

In fact, one of the subparts of the confidentiality statute exempts courts of competent jurisdiction precisely to handle these kinds of controversies so that where--

Unknown Speaker: Have they been given to the attorney for the other side?

Mr. Clark: --They have not been given to the attorney for the other side.

Unknown Speaker: Well, then, they haven't--

Mr. Clark: They have not been ordered--

Unknown Speaker: --they haven't done what they have been ordered to do yet, nor have they categorically refused to do what they have been ordered to do.

They want to litigate it first before they take their chances.

And what we said in Ryan is, you have to take your chances.

Go into contempt and then we will see whether you had to turn it over or not.

Now, why should there be a different rule here?

Mr. Clark: --I think beforehand it would be a requirement of the respondent here to request the state Supreme Court to enforce its mandate before we... the Children and Youth Services is not in sort of some kind of limbo contempt situation here because it hasn't delivered these files yet.

We immediately appealed.

Unknown Speaker: There is no final action that has been taken against anybody.

Nobody has been held in contempt.

No defendant has been acquitted.

Nothing final has happened.

Mr. Clark: A defendant has been convicted, Your Honor--

--The Court has said if--

--and a Sixth Amendment issue has been authoritatively decided by a state court, arguably incorrectly, and as a result of that we have a situation where the state trial courts of Pennsylvania are routinely permitting criminal defendants to scavenge.

Unknown Speaker: This prosecution is still proceeding, isn't it?

It is not over.

Mr. Clark: I don't think it's over any more than the fact that as this Court did in South Dakota versus Neville where the State Supreme Court there had authoritatively adjudicated a federal constitutional issue and remanded the case to the trial court for further proceedings on another matter, and this Court determined that it still had Jurisdiction to decide the issue in view of the fact that no matter who prevailed at the trial court level, the issue would either be mooted or the state would be prevented from proceeding any further in the United States Supreme Court by virtue of the double jeopardy clause.

Unknown Speaker: As I understand it, the only way we can distinguish the next case where a litigant is ordered to turn over Information and he says that that order is incorrect, the only way we can turn down an appeal from that order without requiring him to take his chances and either lose the case or go into contempt, you say the distinction between that case and this one is what, that here... here what?

Mr. Clark: Between Ryan and this case, Your Honor?

Unknown Speaker: Yes, that is essentially Ryan I was describing.

Mr. Clark: In Ryan the defendant absolutely refused to disclose these, to surrender his--

Unknown Speaker: And here?

And here the prosecution is absolutely refusing to do what is requested.

Turn them over to the counsel for the other side.

Mr. Clark: --The agency was directed to surrender those records initially to the trial court, Your Honor.

Here, the order from the Supreme Court, yes.

Unknown Speaker: Well, isn't the--

Mr. Clark: The Supreme Court has... I'm sorry.

Unknown Speaker: --It there is a refusal to turn them over won't the conviction be set aside?

Mr. Clark: Presumably the prosecution would be dismissed at that point.

Unknown Speaker: I would suppose it would because if they are turned over and there is something in them that the defendant should have had during the trial, there is going to be a new trial.

Mr. Clark: There will be a new trial.

Unknown Speaker: Well, the Supreme Court of Pennsylvania has already ordered a new trial, hasn't it?

Mr. Clark: The Supreme Court... no, it has ordered a remand, Your Honor, tot purposes of an evidentiary hearing to determine whether or not harmless error occurred.

Unknown Speaker: But the court already has the records that are to be opened.

Is that correct?

Mr. Clark: The trial court at one time had custody of those records.

Unknown Speaker: Well, does the trial court have them now?

Mr. Clark: No, Your Honor.

Unknown Speaker: Who has them now?

Mr. Clark: Those records are with the Children and Youth Services Agency.

Unknown Speaker: I see.

Mr. Clark: That agency has not been ordered by the Court pending this appeal to surrender those records.

Unknown Speaker: That is the court that is going to look at them under this order.

Mr. Clark: In a largely ceremonial sense, Your Honor.

Unknown Speaker: Well, I know, but who is going to determine whether or not there is something in the records that requires a new trial?

Mr. Clark: Well, as I understand it from the Supreme Court's opinion, Your Honor, apparently trial counsel was to make that determination, a rather unusual--

Unknown Speaker: You mean the trial counsel will say, I found something in here that I think--

Mr. Clark: --The trial counsel will second-guess the trial courts, the appellate courts.

Unknown Speaker: --He is going to have to argue with the trial court about it.

Mr. Clark: Yes, Your Honor.

Unknown Speaker: And if the trial court agrees with them there is going to be a new trial.

Mr. Clark: That's correct, Your Honor.

Unknown Speaker: xxx a new trial, will the prosecution under the amended statute want access to those records?

Mr. Clark: Certainly, Your Honor, they would.

Unknown Speaker: They will?

Mr. Clark: I should think so.

Unknown Speaker: If there is a new trial and he is acquitted, you will never be able to have this question raised in this case.

Mr. Clark: It will never be raised here in this Court with that case, Your Honor.

There is another aspect to this finality argument that we have, this finality theory that we have that the very harm that we seek to avoid here, the disclosure of those confidential records will happen as soon as that remand takes place.

And in our view this is virtually an irretrievable loss if we are correct on our theory of the Sixth Amendment issue.

Unknown Speaker: I am sure counsel could have said that in Ryan, too.

He could have said, Your Honor, my client is not going to take the chance of going into contempt.

If you don't hear this appeal now he is going to turn this information over, and we said, you know, we are sorry, we don't sit here to review issues.

We sit here to review final actions, and there is no final action in this Court, by this Court, so go away.

Mr. Clark: It is not final in the sense, Your Honor, that there are further proceedings to come.

That is absolutely correct.

But this Court's line of cases beginning from Cox Broadcasting--

Unknown Speaker: But if you refuse, the conviction is going to be set aside.

Mr. Clark: --That's correct, Your Honor.

I am not sure that I can represent that a refusal to surrender these records is what is going to happen.

Those records--

Unknown Speaker: If and when it is set aside we could review it then, right?

You could then appeal the setting aside of it for these erroneous grounds, for these grounds that you assert are erroneous.

Mr. Clark: --If... in the event there is a refusal?

Unknown Speaker: Right.

Mr. Clark: Is that what you are saying, Your Honor?

Unknown Speaker: Right.

Mr. Clark: I believe that the mandate of the Supreme Court of Pennsylvania is that Children and Youth Services will surrender their records to the trial court.

Presumably if the trial court wants those records it will order them, as it may under the statute.

When that occurs the trial court, as the opinion indicates, is expected to review these files to determine whether or not there would be anything in there that might have been helpful to the respondent in preparing his defense.

Then the court is to surrender those records to the respondent so that he may do his second guessing evaluation of the trial court's exercise of discretion.

Unknown Speaker: Mr. Clark, you might be well advised to move to the merits since you only have half an hour.

Mr. Clark: Thank you very much, Your Honor.

In returning to the merits, the Commonwealth would observe that the Supreme Court of Pennsylvania erred in three specific respects.

It misconstrued or misapplied the application of the confrontation clause in the circumstances of this case.

It erroneously concluded that counsel's otter at the pretrial proceeding was a sufficient preliminary demonstration of materiality so as to trigger, if there is a compulsory process issue here, that clause, and it incorrectly concluded, we believe, that the two clauses in effect have... cannot countenance the ex parte judicial review of these confidential records which the Commonwealth insists must occur.

The privilege of confrontation is exclusively a trial right.

The situation complained of here Involves a pretrial decision involving pretrial matters.

Facially the confrontation clause is not applicable here.

The Supreme Court of Pennsylvania relied on Davis v. Alaska as dispositive of the issue, falling to understand, I believe, that the constitutional error that this Court found in Davis v. Alaska was the restriction on the trial lawyer's attempt to cross examine a witness concerning his juvenile status, attempting to coax from him the fact that he might have suspect motives in testifying.

This is an inapt analogy, we believe, to this case.

It may very well be that the compulsory process clause provides perhaps more expansive privilege, and if it does it might be applicable here.

Certainly the compulsory process clause is available to a criminal defendant in a pretrial context.

Privileges guaranteed under that clause, we think, however, require a respondent, a defendant to identify with some particularity the witnesses or the evidence that he would seek to have the court compel for his use at trial.

The respondent's litany of could be's does not meet that minimal test of materiality which this Court has discussed most recently in United States versus Valenzuela Bernal.

There the Court determined that it is imperative upon the person seeking access to what apparently is information he cantor possibly know the contents of to make some plausible theory about how a witness might be used, what that witness might be capable or competent to describe, and so forth.

Under this Court's discussion there, I believe, which is dispositive of the compulsory process clause issue before this Court, it cannot be doubted that the offer by the respondent was so vague, so generalized, so undirected that the trial count simply had no information upon which to exercise its discretion.

I would hasten to assure the Court that the respondent was very well aware of the names of the caseworker who was involved in interviewing the child, the name of the doctor who treated or examined the victim, and that he very well could have sought the trial court's assistance in isolating statements made by either one of those parties that might be in that tile because those people would be competent to testify about some aspect presumably of the criminal defendant's preparation for trial.

Unknown Speaker: Mr. Clark, what about Brady versus Maryland?

That is not really a compulsory process case.

Mr. Clark: No, Your Honor, that is a due process case.

Unknown Speaker: That doesn't require a specific description of what... in fact you often don't know what the prosecution or the government has, right?

Mr. Clark: That's absolutely correct, Your Honor.

Unknown Speaker: And due process requires that if you ask the government for whatever exculpatory information it may have the government turn that over it that would be material.

Why isn't that applicable?

Mr. Clark: It could very well be, Your Honor, in this regard.

Those files never having been in the possession of the Commonwealth, but having been in the possession of the trial court, it may very well be that the trial court could make that preliminary determination regarding whether or not there is exculpatory evidence in there, and I am not here today to attempt to say that where exculpatory evidence exists and where the Commonwealth as a law enforcement representative would have some access to that confidential material, that there wouldn't be any obligation of someone to determine whether or not there was exculpatory material.

Unknown Speaker: Your point is that the order here goes beyond Brady and it requires it all to be turned over whether in fact it is exculpatory material or not.

Mr. Clark: That is absolutely right, Your Honor.

What distinguishes this from Brady material, of course, is that it was never in the possession of the attorney for the Commonwealth, the prosecutor, and I think that is the essence of the Brady decision, because--

Unknown Speaker: Certainly under the amended statute the Brady case would become pertinent.

Mr. Clark: --It certainly would, Your Honor, and I am quite... the Commonwealth is quite content to represent that we believe the trial court is in a very excellent position to make these discriminating choices between extraneous material and matter which is certainly dangerous.

Unknown Speaker: Mr. Clark, in this case to what extent did the trial judge actually examine the file?

Mr. Clark: It is difficult to tell from reading the record, Your Honor, but it appears that I could imagine the trial judge, knowing him as I do, leafing through things.

There is no way to demonstrate that from the record, however.

Unknown Speaker: Didn't the trial judge say he hadn't read those 50 pages?

Mr. Clark: He said he hadn't read all 50 pages.

I think the dialogue goes--

Unknown Speaker: Of the nonmedical record?

Mr. Clark: --I believe the dialogue goes something like this, Your Honor.

Respondent's counsel sought medical records.

He says, there's medical records in there, I know there are, and the trial court apparently leafed through some material--

Unknown Speaker: He said there wasn't any.

Mr. Clark: --and said, I don't see any medical records in there, and he apparently turned to the representative of the Child Protective Service Agency and said, are there any medical records in here that were representative?

He said there were not.

And that apparently concluded that inquiry.

Unknown Speaker: May I ask you if you think what the trial judge did was constitutionally sufficient?

Mr. Clark: Absolutely, Your Honor, based on the proffer made by respondent's counsel.

Unknown Speaker: But he had no duty to look at the file?

Mr. Clark: He had a duty to look in a file if he got a specific request for a specific kind of--

Unknown Speaker: Absent a specific request identifying particular material--

Mr. Clark: --At that point no, Your Honor.

Unknown Speaker: --I see.

Mr. Clark: At that point no.

Unknown Speaker: He wanted medical records.

Mr. Clark: He wanted medical records.

He looked for some evidence--

Unknown Speaker: And the judge said, there aren't any.

Mr. Clark: --There aren't any.

Apparently he was able to make that kind of a discriminating choice by leafing through how many ever pages there were in that record.

And in that... I would... If there are no further questions by the Court i would like to reserve the balance of my time for rebuttal.

Argument of John H. Corbett, Jr.

Chief Justice Rehnquist: Very well, Mr. Clark.

We will hear from you now, Mr. Corbett.

Mr. Corbett: Mr. Chief Justice, and may it please the Court, this case provides an opportunity for this Court to reaffirm its concern for the integrity of the truthseeking function of state criminal trials.

The Supreme Court of Pennsylvania has held in this case that the integrity of its criminal trials, the truthseeking function embodied in those trials is paramount to this privilege statute, a statute created under Pennsylvania law, and in doing so it did not render that statute unconstitutional.

It did not declare that statute unconstitutional, but interpreted that statute and sent the case back to the trial court for determination of whether there is material in the CWS files, the Child Welfare Service files to determine further if that material, if relevant the suppression of that material was harmless beyond a reasonable doubt, and if a new trial was warranted.

In doing so, the decision of the Supreme Court of Pennsylvania, we would state to this Court, is not a final decision under Section 1257.

Certainly it does not fit the classic definition of finality because there are a number of things for the trial court to do other than simply to record a judgment.

The trial court must hold an evidentiary hearing in camera to determine the relevancy at the material in the CWS files.

It must determine if the suppression of such evidence was harmless beyond a reasonable doubt, and if necessary determine whether a new trial was warranted.

Furthermore, this case does not present itself as a classic example of those kind of cases which this Court identified in Cox Broadcasting Company as being a final judgment for purposes of appeal to this Court.

There are a number of things to be done in the lower court, and the issue that the district attorney of Allegheny County is presenting to this Court will not evade review.

If the material goes back... if this case goes back to the trial court and a new trial is granted then the district attorney can then once more go through the various stages of appeal and bring this case to this Court.

Unknown Speaker: It seems to me the harm that the state statute or the state rule was designed to prevent, namely, the disclosure of these records, will... the harm will have been done.

And what the state wants to do is to prevent access to these records insofar as the Constitution will permit, and if this case goes back the records will be turned over to counsel and harm will be done, and that is precisely what the state wants to prevent.

It is sort of like a double jeopardy issue.

Mr. Corbett: Well, Your Honor, if I may, I have two responses to that.

The first is that the district attorney is bringing a Sixth Amendment issue to this Court but it is not claiming a Sixth Amendment injury.

It is in fact presenting sub silencio a Tenth Amendment issue for this Court to consider.

And that is that by interpreting the Sixth Amendment claim in this fashion it is saying that the Supreme Court of Pennsylvania has applied excessive federal regulation to a state statute, and in that manner is attempting to bring this case to this Court under the rubric of a Sixth Amendment case when in fact the district attorney has not suffered a Sixth Amendment injury, and it is not the type--

Unknown Speaker: Well, you agree, don't you, Mr. Corbett, that one of the bases of the Supreme Court of Pennsylvania's decision was its perception of how the Sixth Amendment should be applied.

Mr. Corbett: --Absolutely.

Absolutely, but--

Unknown Speaker: xxx require turning over these materials to the defense attorney?

Mr. Corbett: --Yes, it did.

That goes to the second... my second response to Justice White's question before, and that is, this disclosure of material in the CWS files is not such a great harm that this Court should be concerned with it.

Under this state statute, the state statute that was in effect at the time this case went to trial, there were five classes of individuals who were entitled to gain access to this material--

Unknown Speaker: Well, do you think that is--

Mr. Corbett: --one of which--

Unknown Speaker: --Do you think that has much to do with finality, how great the harm is?

Mr. Corbett: --Yes, I think it does, whether or not the type of harm that the district attorney is propounding is irreparable I think is a concern that this Court must face here.

What I am saying here is that this state statute gives access to five groups of individuals, which was later expanded to eleven groups of individuals, and under both statutes a court of competent jurisdiction pursuant to court order had access to this material, and I suggest that that is a classic subpoena order.

Secondly, the Supreme Court of Pennsylvania remanded this case to the trial court with instructions that this material be reviewed in camera and that appropriate protective orders be imposed upon counsel for the dissemination of that material, so that this material is not going to be disseminated widely to the public.

Unknown Speaker: Mr. Corbett, isn't it true that the kind of damage you are responding to that Justice White suggested will always occur in any of our cases such as Ryan, where we have insisted that the individual who asserts a right, even a constitutional right not to disclose information which the court requires him to disclose nonetheless go into contempt before he can bring it up here?

He either goes into contempt or else he turns it over.

If he turns it over he produces exactly the result which the Constitution assertedly guarantees won't happen.

So in that respect I would think your response would be the state is in no different situation from anyone who refuses to turn material over or says he will refuse.

The refusal has to be evident before we intervene.

Mr. Corbett: Yes.

Thank you, Justice Scalia.

Unknown Speaker: Is there an exception in Ryan, though, when privileged information is in the hands of a third person?

Mr. Corbett: Well, that brings us to a difficulty with this case, and that is that the district attorney is really wearing two hats in bringing this case to this Court.

The district attorney is wearing the hat of the privilege holder in withholding the Information and also as the litigator in a case and that they are Interested in maintaining the Judgment they have in their favor.

I think the Court understands my argument on the finality issue.

I would like to then move on to the substantive issue itself dealing with the--

Unknown Speaker: Mr. Corbett, before you do--

Mr. Corbett: --Yes, Your Honor.

Unknown Speaker: --is your client available now?

Mr. Corbett: Yes, Your Honor, he is, As Mr. Clark pointed out, we had some difficulty in locating this individual.

He was not in any way a fugitive.

We have supplied his affidavit to the Court.

It is a matter of record.

Moving on, then, to the confrontation and compulsory process issue itself, the facts in this case are extremely important in order for the Court to understand exactly what transpired, both during the pretrial hearing in chambers where the CWS records were discussed and also during the trial.

The facts as adduced during these proceedings indicate that the complainant was the 13-year-old daughter of my client.

The criminal charges arose out of an event that occurred on June 11th, 1979.

This young girl was the only witness at trial to establish that any type of a crime had ever occurred.

There was no other type of direct testimony, no other type of circumstantial evidence entered of any kind whatsoever that any crime had ever occurred.

This girl indicated that these events had occurred three or four times a week for a period of four years.

During her testimony at trial and also in the pretrial hearing defense counsel was able to point out that in September, the previous September of 1978 a representative of CWS had investigated the Ritchie home and that no criminal charges had been filed at that tame, no further action taken.

It is significant for our purposes to point to that September of 1978 to indicate that we had in the home a representative of the state who apparently interviewed the members of the family, and no criminal charges arose from that incident.

The complainant gave statements to that representative of CWS, and yet we were denied the opportunity to look at that material, to cross examine the complainant During the trial.

Unknown Speaker: Well, are you contending, Mr. Corbett, that the Sixth Amendment right to confrontation confers something more than the right to examine a witness who is present in court and testifies?

Mr. Corbett: The Sixth Amendment right to confrontation, I think, gives the defendant the opportunity to develop the facts, to see where the truth lies, and does so by giving the... by giving the defense an effective opportunity to cross examine the witness.

Unknown Speaker: And what Sixth Amendment case construing the confrontation clause of ours do you rely on for that proposition?

Mr. Corbett: I think quite frankly our strongest case here is Davis versus Alaska, where in its broadest sense the case may be read to state that a state may not deny its confrontation claim or confrontation obligations simply by alleging that the evidence that it wishes to withhold is privileged by... under state law.

Unknown Speaker: But in Davis the effort was to interrogate the witness on the stand.

They weren't seeking access to information which would enable them to interrogate the witness.

Mr. Corbett: They were... in Davis they Mere also looking to... they were looking to obtain facts from which they could cross examine the witness during the trial.

Those facts existed in juvenile records.

In this case we have--

Unknown Speaker: But the effort was to examine the witness herself, wasn't it?

Mr. Corbett: --In this case, yes.

In Davis.

Unknown Speaker: Well, in Davis.

Mr. Corbett: Yes.

Unknown Speaker: I mean, they weren't... were they seeking in Davis discovery of a lot of allegedly confidential records in order to enable them to prepare to examine the witness?

Mr. Corbett: No, they weren't.

In Davis, Davis dealt with the possible basis of bias or prejudice of the witness in testifying in the manner in which he did.

Unknown Speaker: Certainly our case of Delaware against Fensterer indicates that it is not the very broad view that you subscribe to for Davis that is controlling with us.

Mr. Corbett: That may be true.

However, in Fenster you had a situation where the defense was able to bring in a witness to present facts on their own side of the case to show that the expert witness in that case called for the prosecution had no basis for such an opinion, that such an opinion was not recognized in the body of scientific knowledge.

In this case the only source that the defense could point to to obtain those facts were contained in the CWS files.

Unknown Speaker: The statements in that file did you say included statements by the complaining witness?

Or you don't know?

Mr. Corbett: We think they should.

We don't know.

There was--

Unknown Speaker: Was this anything like Jencks versus United States?

They wanted statements of the government witnesses, in order to cross examine to show inconsistencies with the testimony?

Mr. Corbett: --I think it is very similar to Jencks, yes.

Unknown Speaker: Well, of course, Jencks was not a constitutional decision, though.

Mr. Corbett: Well, in this case I think that... I think that in order to cross examine this witness we have to be given access to that material.

There is no other source for that kind of material.

Certainly if it were not for this state statute those statements would be available to us.

It is only but for this state statute--

Unknown Speaker: xxx Jencks rule?

Mr. Corbett: --No.

No, Your Honor, it does not.

This Court last term in Delaware versus Van Arsdall indicated that defendant shows a violation of his right of confrontation by showing that he has been prohibited from engaging in otherwise appropriate cross examination designed to show a prototypical form of bias on the part of a witness and thereby to expose to the jury facts from which the jury could appropriately draw inferences relating to the reliability of the witness.

We are asking the Court that we have been denied the opportunity to look at those facts, to bring those facts before the trier of fact, here the jury, and have the jury--

Unknown Speaker: But your claim is quite different than the one in Van Arsdall.

In Van Arsdall Questions were asked to a witness on the stand and the trial judge said, no, the witness is not required to answer those questions.

Here, no one prevented you from asking this witness any question you wanted to on the stand.

Your complaint is, you want to do a lot of discovery work before you start asking questions.

Mr. Corbett: --Well, what I am complaining about is the fact that as in Davis the jury may very veil have thought that defense counsel's cross examination of the victim concerning this investigation in September of 1978 may have been a baseless ground of attack.

Here me have a situation where the principal issue at trial was the credibility of two parties, the complainant and the defendant, and it may very well have tipped the scale for the jury to have heard a different version of the facts that the complainant gave on prior occasions.

And in that respect I am saying that there lies the violation of the right to confrontation.

Unknown Speaker: Well, Mr. Corbett, doesn't your claim fit a lot more easily under the compulsory process clause than the confrontation clause for right of access to information?

Mr. Corbett: I think this case presents... I think both the confrontation and the compulsory process Issues go hand in glove.

Unknown Speaker: Well, I just don't see that you were denied confrontation.

Conceivably there is some compulsory process problem, but I don't see that it fits very comfortably under the confrontation clause.

Mr. Corbett: Okay.

If I may just point out one matter concerning that, on the... whether or not the defense has shown whether they have made out... whether the claim is material, whether or not the suppression of such evidence undermines confidence in the outcome of the case is the standard of materiality that this Court must wrestle with.

Here we have more than a "plausible showing", as the Court indicated under--

Unknown Speaker: How have you made a plausible showing to reveal the entire record as opposed to just verbatim inconsistent statements of the witness?

Mr. Corbett: --Well, we have the CWS files.

The record indicates, the entire record indicates that the CWS files contain facts that the Commonwealth of Pennsylvania has gathered--

Unknown Speaker: Is the judge, is the trial judge incompetent to make the determination of what is material?

Mr. Corbett: --No, I don't think it is a matter of declaring whether or not a trial judge is or is not incompetent.

As we indicated in our brief in the case of Alderman v. United States, this Court indicated that it is enough for judges to judge, and in that case it is useful to have the defense, defense counsel participate in deciding whether or not material is useful to the defense.

We have set forth in our brief several steps that one can go through in analyzing whether or not defense counsel should participate, one of which is whether or not the case is factually complex in itself.

I suggest that when this type of criminal case arises where you have claims of abuse arising in a family relationship that is a quite complex factual determination, and a trial judge sitting... the best trial judge sitting as objectively as he possibly can, in looking at this material would or may very well overlook something that would have great significance to the defense.

In looking at the privilege statute that is the bone of contention in this case, one of the classes of categories of individuals who have access to this information is a court of competent jurisdiction pursuant to court order.

We argued in the state courts, and the Supreme Court of Pennsylvania agreed with us, that it would be absurd to suggest that a court is granted access to this file, and yet it is not free to use that material to assist in the truthseeking function of the criminal trials.

In determining which remedy should be applied in looking at this material contained in the file, whether or not defense counsel should participate, we have set forth in our brief two alternate lines of cases looking at this particular situation.

One was under the dicta of this Court in the case of United States versus Nixon, where the Court suggested that the case would be remanded back to the trial court in order to have the trial judge review this material in chambers with counsel present and counsel would then... or the trial judge would then have the benefit of counsel's advice on determining what information is relevant and material to the action.

The second line of cases that we have outlined for the Court in our brief concerns those cases arising under the Freedom of Information Act.

These cases arise under the various courts, federal courts of appeals, and in those situations the courts have required the party withholding the information to prepare affidavits indicating why the information should not be turned over to the opposing party, and also an affidavit to assist the judge, the trial Judge in reviewing the material.

Both the affidavit and the material would then be sealed and... placed under seal for review by appellate courts.

Since that procedure was not used in the present case and... we would submit to the Court that in the absence of such a procedure defense counsel must assist the trial judge in determining the materiality of this material in order to ensure the integrity of this truthseeking process.

With no further questions, I would request the Court to affirm the judgment of the Supreme Court of Pennsylvania.

Unknown Speaker: Do you think Davis is the closest case to supporting you?

Mr. Corbett: I think Davis would be the closest case concerning the confrontation issue and possibly Washington versus Texas being the closest case on the compulsory process issue.

Thank you, Your Honors.

Unknown Speaker: Thank you, Mr. Corbett.

Mr. Clark, do you have anything else you wish to say?

You have four minutes remaining.

Rebuttal of Edward Marcus Clark

Mr. Clark: Thank your Your Honor.

Very briefly, I would like to address the figurehead role that the respondent's counsel seems to envision for the trial court.

It is kind of an enfeebled referee or arbiter, which this Court has specifically declined to assign to the trial court judge in situations like that, and in the case of United States versus Mobles this Court clearly indicated its disfavor with the contention that the trial court should not be in the position of evaluating preliminarily these kinds of determinations.

Unknown Speaker: Mr. Clark, may I just make one inquiry?

Does the district attorney have the power to direct the Child Welfare Service not to turn over those records?

Mr. Clark: Absolutely no, we do not have that power.

I can't imagine the circumstances under which we would.

We have the power to perhaps seek courts' assistance in getting material for ourselves which is due us under the statute, and with the Court's indulgence I would like to backtrack.

I believe on a question that Justice Brennan asked regarding whether or not, if we went back on a remand, whether or not the proceeding would be decided under the immunity statute or under the old statute.

I think in view of the fact that the amendments to the statute involve the new access to prosecutors and the issue before this Court is the access of defendant to those statutes, that more appropriately the proceedings should occur under the 1975 Act rather than the 1982 amendment.

And in view of the fact that the scant proffer concerning materiality by the respondent, our lack of access initially to those records, and respondent's failure to follow up his request at the cross examination stage at trial, we believe that the integrity of the judgment and conviction here is best served by analyzing the case under the 1975 Act, Your honor.

If there are no further questions from the Court the Commonwealth of Pennsylvania would ask this Court to reverse the Judgment of sentence below, rather, the judgment and order by the Supreme Court, and in effect affirm the trial court's decision.

Chief Justice Rehnquist: Thank you, Mr. Clark.

The case is submitted.

Attribution:

The OYEZ Project

Featured:

United States v. Bagley - Oral Argument

Fri, 31 Aug 2012 18:30:14 +0000

Case:

United States v. Bagley

Media File:

84-48_19850320-argument

Related Transcript:

84-48_19850320-argument

Transcript:

ORAL ARGUMENT OF DAVID A. STRAUSS, ESQ., ON BEHALF OF THE PETITIONER

Chief Justice Warren E. Burger: The Court will hear arguments first this morning in United States against Bagley.

Mr. Strauss, you may proceed whenever you are ready.

David A. Strauss: Thank you, Mr. Chief Justice, and may it please the Court, in this case the Court of Appeals for the Ninth Circuit awarded respondent a new trial on the ground that the government had not disclosed to respondent certain documents in its files that respondent claims he could have used to impeach two government witnesses.

The issue concerns the standard of materiality that should be applied in determining whether such evidence is significant enough to require a new trial.

The respondent in this case was indicated in 1977 on multiple counts of violating federal narcotics and firearms statutes.

Before trial, respondent served on the government eleven broadly worded discovery requests.

Among those requests was the one that has now become the focus of the case, a request for any deals, promises, or inducements made to prospective government witnesses in exchange for their testimony.

In response to all the various discovery requests, the government gave the defense a large number of documents.

Now, respondent elected to waive a jury trial, and he was tried by District Judge Vorhees of the Western District of Washington.

Among the witnesses against him were two state law enforcement officers named O'Connor and Mitchell, who had witnessed criminal transactions involving respondent while they were operating in an undercover capacity.

O'Connor and Mitchell were supervised during the investigation of respondent by the Federal Bureau of Alcohol, Tobacco, and Firearms, ATF.

At trial, O'Connor and Mitchell testified primarily about the firearms charges.

Now, after the seven-day trial, Judge Vorhees found respondent not guilty on the firearms charges, but guilty on the narcotics charges.

Some years later, respondent filed a Freedom of Information Act request, and he uncovered two form ATF contracts that had been signed by O'Connor and Mitchell before the trial, but that were not among the materials delivered by the government to the defense.

Respondent then brought this action for collateral relief under 28 USC 2255, alleging that if he had known of these form contracts at the time of the trial he could have used them to impeach O'Connor and Mitchell.

Respondent's 2255 motion came before Judge Vorhees.

The prosecutor testified at a hearing that he had been unaware of the form contracts, which apparently were in ATF files, and that if he had been aware of them, he would have given them to respondent.

Judge Vorhees found that well after the trial O'Connor and Mitchell were each paid $300 by ATF, but that the ATF form contracts were blank when O'Connor and Mitchell signed them, that no AFT representative signed them until after the trial, and that no government agent at any time had promised O'Connor or Mitchell compensation for his services or his testimony or anything else.

Justice John Paul Stevens: Mr. Strauss, may I interrupt?

You refer to these as form contracts.

They do have some typed information in them that I gather is tailor-made for the particular... for Mr. Bagley.

Was that not true?

David A. Strauss: That is right, Justice Stevens.

There was a finding, however, that at the time they were signed by the witnesses, O'Connor and Mitchell, and in fact at the time of the trial the only thing typed into them was the unique identifier, a numerical code in the upper righthand corner.

Justice John Paul Stevens: Not even the name Mitchell?

David A. Strauss: There was no finding about the name Mitchell.

I assume it was typed in at the time.

Justice John Paul Stevens: The language that he will provide information regarding T1 and other violations committed by Hughes A. Bagley and so forth, that was typed in after the trial?

David A. Strauss: That is the finding.

Justice John Paul Stevens: I see.

And it is based on... whose testimony was this?

David A. Strauss: I believe the testimony of the supervising ATF agent, named Prins.

Justice John Paul Stevens: And I notice it is signed by three officers of ATF, and they all signed after the trial, too?

David A. Strauss: Yes, that is right.

Judge Vorhees further found that O'Connor and Mitchell had at most a unilateral expectation that they might receive some compensation for their services, although not necessarily for their testimony.

Finally, Judge Vorhees ruled that since he himself had found respondent guilty, he was uniquely positioned to determine the impact that the ATF form contracts would have had on the trial, and he stated that he was convinced beyond a reasonable doubt that the form contracts would have made no difference to his verdict.

Now, as I said at the outset, the Court of Appeals reversed and ordered that respondent be granted a new trial.

This happened in 1983, six years after respondent was convicted.

The Court of Appeals did not explain at any point in its opinion why Judge Vorhees was mistaken in concluding beyond a reasonable doubt that his own verdict would not have been affected by the form contracts.

Instead, the Court of Appeals stated, and I am reading the last sentence of its opinion,

"We hold that the government's failure to provide requested Brady information to the respondent so that he could effectively cross examine two important government witnesses requires an automatic reversal. "

Justice William H. Rehnquist: Mr. Strauss, the government here doesn't challenge the application of the Brady doctrine to purely impeaching materials, I take it.

David A. Strauss: We do not dispute that there are some circumstances in which the prosecution has an obligation to disclose purely impeaching material.

That is right, Justice Rehnquist.

Unidentified Justice: And this case is one of them?

David A. Strauss: No, this case, we would submit, is not one of them.

Justice Thurgood Marshall: Can you imagine any way this case could have gone the other way and for the Judge to say I was wrong?

David A. Strauss: You mean for Judge Vorhees to say?

Oh, I think very much so, Justice Marshall.

Justice Thurgood Marshall: I mean, I think it is a horrible burden to put on somebody.

David A. Strauss: Well, I can understand, Justice Marshall, where a judge might in fact have an overreaction the opposite way and be incensed that this material was not brought to his attention.

Justice Thurgood Marshall: When you were told to explain why you did something six years ago, your subconscious tells you to defend it.

David A. Strauss: Well, I think that is certainly right, Justice Marshall, and there are decisions of this Court predicated on that, but Judge--

Unidentified Justice: But was he--

David A. Strauss: --I am sorry, Mr. Chief Justice.

Judge Vorhees found respondent guilty on the basis of a record which turned out according to respondent to be incomplete, and I think Judge Vorhees might very well have reacted the other way and said that if the government was going to conceal this information, he would teach it a lesson.

It is not obvious to me that the psychology cuts in favor of the government in these circumstances.

Chief Justice Warren E. Burger: --When the case was tried before the court without a jury, was any of this information before the court?

David A. Strauss: These form contracts were not before the court.

Chief Justice Warren E. Burger: Yes, and that is the only issue in the case, isn't it?

David A. Strauss: That is right, is whether those had been--

Chief Justice Warren E. Burger: So this was in effect something newly discovered.

David A. Strauss: --That is exactly right.

Chief Justice Warren E. Burger: In making the judgment he made, Judge Vorhees did not have to review any judgment or decision he had previously made on the issue involved here, did he?

David A. Strauss: That's right.

Unidentified Justice: But, Mr. Strauss, wasn't there an affidavit or something denying that anything like this occurred that Judge Vorhees had?

David A. Strauss: There were affidavits that Judge Vorhees had that the respondent but not the Court of Appeals has made quite an issue of.

These were affidavits that were submitted to the respondent in response to a different discovery request.

Unidentified Justice: I know, but did Judge Vorhees have those?

Did he understand that there were no such contracts from those affidavits?

David A. Strauss: He could not have understood that there were no such contracts in those affidavits because the affidavits made no such representation.

Unidentified Justice: What did the affidavits show?

David A. Strauss: The affidavits were long, detailed recountings of the undercover dealings between the witnesses and the defendant, and they concluded with a recital that said, I have made these statements free of threats or promises or promises of reward.

Each of them concluded with that boilerplate recital.

Unidentified Justice: And O'Connor and the other officer signed those affidavits?

David A. Strauss: They signed those affidavits.

Unidentified Justice: And Judge Vorhees had those?

David A. Strauss: It is not clear.

I could not find any place where those affidavits were actually introduced into evidence by respondent.

Respondent had the affidavits.

They were Jencks Act material given to respondent.

Justice John Paul Stevens: But those statements were clearly false when they said they were free of promise of reward, because there is a promise of reward in these form contracts.

David A. Strauss: No, that is not right, Justice Stevens.

The statements were not false.

There was a finding of no promises.

They are not false for several reasons.

There is a finding that no promises were made to these witnesses, that at most they had a unilateral expectation that something would be given to them.

Unidentified Justice: Yes, but might not the Judge have concluded that based on that statement that Justice Stevens referred to in those affidavits?

David A. Strauss: The judge who concluded that was the judge on habeas proceedings--

Unidentified Justice: I see.

David A. Strauss: --who had before him... the entire record before him.

Unidentified Justice: Not the trial judge?

David A. Strauss: Not the trial... he was the trial judge, but he was the trial judge sitting in the habeas proceeding.

It was the same judge, but he concluded that at the time of the 2255 motion.

Justice John Paul Stevens: The form document says, the United States will pay to said vendor a sum commensurate with services and information rendered.

David A. Strauss: The testimony, Justice Stevens, that they gave was that while they were conducting this investigation, they were busy signing a lot of forms that were shown to them by the case agent, and they basically didn't know what the forms were for.

Justice John Paul Stevens: They gave that testimony before the magistrate, not before the judge.

David A. Strauss: That's right.

Justice John Paul Stevens: They never said that to the judge.

David A. Strauss: That's right, but the judge upheld the magistrate's finding.

Chief Justice Warren E. Burger: When was that?

Was that at the time of the original trial or at the habeas proceeding years later?

David A. Strauss: That was in the habeas proceeding in 1981.

Chief Justice Warren E. Burger: This is five or six years later.

David A. Strauss: Yes.

Justice John Paul Stevens: So the judge's decision did not involve in any sense reviewing his own prior judgment.

David A. Strauss: That is right.

Justice John Paul Stevens: How can you say that?

He made a finding of fact that his own prior judgment would not have been different based entirely on the prior judgment.

David A. Strauss: The prior judgment was based on different evidence from the evidence that was before him at the--

Justice John Paul Stevens: But it involved a complete review of the prior judgment, did it not?

Is that not your whole argument?

David A. Strauss: --I don't know whether that constitutes review of the prior judgment or not.

It does not constitute review in the sense of any appellate review or of any second guessing of the judgment.

Justice John Paul Stevens: How could he have said he would have made the same decision without knowing what he decided in the first place?

David A. Strauss: Well, of course he knew what he decided in the first place, but the point is that the judge had no... the factors that operate in cases like Santa Pella to cause judges to have a commitment to the decision they previously reached so that they will be unwilling to overturn that decision do not operate here, because there is new evidence.

And as I suggested in my colloquy with Justice Marshall, may even operate in the opposite direction, because the judge may be annoyed at the suppression... at the alleged suppression of evidence by the government.

Justice John Paul Stevens: May I... just one other question.

In response to Justice White, I understood you to say that this was not Brady material that there was any obligation to produce.

Is that your position?

David A. Strauss: I am not sure that the government would have had an obligation.

Well, no, I am sure.

The government would not have had an obligation to produce this material, I think, in the absence of a request.

Unidentified Justice: Did this material relate to the narcotics charge or the firearms charge?

David A. Strauss: The witnesses testified on both, but their testimony was primarily on the firearms charges.

Unidentified Justice: And they were acquitted on that charge?

David A. Strauss: They were acquitted on that charge.

That is right.

Justice Thurgood Marshall: Once again, why isn't it Jencks Act?

David A. Strauss: It is not Jencks Act, Justice Marshall, because it is not a statement.

It is not Brady material in my view because this is simply not evidence that seriously draws into question the witnesses' credibility.

Justice Thurgood Marshall: I thought you said that the government apologized for not knowing it was there.

David A. Strauss: The United States attorney said that if he had had these documents--

Justice Thurgood Marshall: Well, why would he do that if he wasn't required to produce it?

David A. Strauss: --I think it would have been very good practice for him to do it.

I think he gave the right answer.

It would make... one of the features of the law in this area is that it really makes no sense for the United States attorney not to go overboard and to do far more than he is obligated to do, because if he doesn't, what is likely to happen is just what happened in this case.

Six years down the road these documents will be uncovered and he will have to relitigate all of these issues.

Justice Sandra Day O'connor: Well, Mr. Strauss, it is your position that the request of the defense counsel when requesting prior criminal records of witnesses to be called by the government and any deals, promises, or inducements made to the witnesses simply didn't cover the document that had been given to the witnesses to sign?

David A. Strauss: We think that is right, Justice O'Connor, although that is not the argument we are primarily relying on.

The request was for deals, promises, or inducements made in return for the testimony.

That is different from whether the government would compensate these people for their services.

I think it is one thing to compensate a person for specifically giving certain testimony in court and another to say that because he has performed certain undercover services he will receive compensation.

Justice Sandra Day O'connor: That is a pretty fine line you are trying to draw, isn't it?

David A. Strauss: I think there is a difference in the effect that would have on the credibility of the witness, but I would add that that is not... our primary argument is not--

Unidentified Justice: The fact finder would certainly regard as rather substantial evidence that a government witness was being paid, whether in return for a promise or anything else, wouldn't he?

David A. Strauss: --I think--

Unidentified Justice: Attorneys would love to have evidence like that, wouldn't they?

David A. Strauss: --I think that is probably right, Justice--

Unidentified Justice: And you suggest it is not good impeachment material?

David A. Strauss: --I think a defense attorney probably would want to inquire into that.

The defense attorney in this case--

Unidentified Justice: Would want to?

I would think he would be ineffective if he didn't.

David A. Strauss: --Well, one of the findings that the District Judge made in this case was that the defense attorney's cross examination tactic was not to try to undermine the witness's credibility, but to try to enlist them on his side.

Unidentified Justice: But he didn't know of the existence of these contracts when he was cross examining these witnesses.

David A. Strauss: He didn't know of the existence of these form contracts.

Unidentified Justice: If he had, he would certainly have been after them, wouldn't he?

David A. Strauss: There is no finding to that effect, and there is no reason to think that.

Unidentified Justice: Common sense would tell you that.

David A. Strauss: Well, I think--

Justice Thurgood Marshall: He asked for them, didn't he?

David A. Strauss: --He asked for deals, promises... he made an omnibus request for deals, promises, or inducements in exchange for the testimony, not for anything specific like this.

One possible cross examination approach, Justice Brennan, would have been to pursue that line, without a doubt, but this defense attorney did not pursue that line.

He never even asked--

Justice Byron R. White: Mr. Strauss, the judge on habeas certainly wouldn't have gotten to a harmless error analysis unless he thought there was error, and he couldn't have found that there was error unless he thought there had been concealment of material information.

David A. Strauss: --I think, Justice White--

Justice Byron R. White: And you suggest that it wasn't even material.

David A. Strauss: --I think, Justice White, that the judge on habeas found there was harmless error in order to avoid having to rule whether it was even material or within the request at all.

He looked at the documents and said, these wouldn't have made any difference to me and there is no point in pursuing this matter further.

Justice Byron R. White: Well, I know, but identifying material to show possible bias, I think that is enough of a finding of materiality.

David A. Strauss: These were blank... the finding was, these were blank contracts with only the witnesses' signatures on it, that no promises of any kind were made to the witnesses, and that ultimately the witnesses were paid some money, well after the trial.

I think to suggest that the witnesses' credibility would have been substantially impaired at all by the fact that they signed one of these documents I think is incorrect.

Justice Sandra Day O'connor: Didn't the government furnish these documents?

These weren't things that the witnesses made up on their own.

Presumably the government investigator handed them to them and said, here, sign this, and at the appropriate time we will consider making a payment, or something of that sort.

Isn't that what happened?

David A. Strauss: Essentially, that's right, Justice O'Connor.

Unidentified Justice: How much did they get paid?

David A. Strauss: $300 apiece.

Justice John Paul Stevens: Plus expenses?

David A. Strauss: Plus expenses.

Justice Byron R. White: You don't seem to... you just wouldn't be satisfied with winning this case on the basis that you won it before the habeas judge?

David A. Strauss: We would be more than satisfied to win this case on that basis.

Justice Byron R. White: Well, that is just on a harmless error basis.

It isn't on a no materiality basis or on reviewing this on a lesser, less than a harmless error basis.

David A. Strauss: The question we presented concerned the harmless error issue, and we would be more than happy just to get rid of the Ninth Circuit's automatic reversal rule, which we think is completely unfounded.

Justice Byron R. White: Well, if we disagreed with that, wouldn't we remand to have them review the District Judge's determination of harmless error?

David A. Strauss: I think that is right, Justice White.

If you disagreed with the automatic reversal rule, you would have to remand for that.

Justice Byron R. White: You certainly go much farther than that in the brief.

In the brief you want to review this error, if there is one, on the basis of... on a lower basis than the harmless error.

David A. Strauss: Well, than the constitutional harmless error rule.

That is right, Justice White, for just that reason, that if the Court should remand, little purpose would be served by having the Court simply remand to have the Ninth Circuit review it under a harmless error rule that we think is unnecessarily strict to us and not necessarily generous to--

Justice Byron R. White: Well, you think it is unnecessarily strict, but it certainly is indicated by our prior cases, isn't it?

David A. Strauss: --I don't think that's right, Justice White.

What the prior cases of the Court indicate is that this is the approach to be applied in cases where the government has knowingly introduced perjured testimony, and it is our submission that this sort of--

Unidentified Justice: Constitutional error.

If there is an error, it is a constitutional error.

David A. Strauss: --It is the standard that applies to constitutional error.

Unidentified Justice: But we shouldn't review that on the ordinary harmless error basis.

David A. Strauss: The failure to disclose these documents is not constitutional error.

There is no provision in the Constitution that says the government has to disclose these documents.

The question is what standard of materiality.

Unidentified Justice: Well, if there isn't any error... what kind of an error is it if it isn't a constitutional error?

David A. Strauss: It is an error if it leads to the trial being unfair.

The question is--

Unidentified Justice: That isn't a constitutional error?

David A. Strauss: --If the trial is unfair it is certainly a constitutional error.

That's right.

But the prior question is whether the non-disclosure of these relative, rather innocuous documents infected the trial with unfairness.

Justice William H. Rehnquist: What case is it that requires the government to turn over statements that are merely impeaching as opposed to exculpatory?

David A. Strauss: The Court has never squarely held that the government has to turn over such material.

I think that is right, Justice Rehnquist.

But as we said, we don't dispute--

Justice Byron R. White: You want us to decide that they really do have an obligation under Brady to turn it over?

David A. Strauss: --We, as I said, don't dispute that in some circumstances--

Justice Byron R. White: If we judge the case on that basis, then, then we are assuming a constitutional error.

David A. Strauss: --I don't follow that, Justice White.

If the Court... we would be happy if the Court were to assume that these documents were in some sense probative or relevant or useful, but to find that the automatic reversal rule applied by the Court of Appeals is not a correct one.

Justice Byron R. White: But then what?

Assuming that, that this standard was the wrong... that the Court of Appeals was wrong on saying there should be an automatic reversal, what then?

If we assume that there was a constitutional error, what do we do?

David A. Strauss: I don't see why this... the assumption is not that there was constitutional error, Justice White.

The failure to disclose information like this is not constitutional error.

All that the failure to disclose information like this does is raise a question whether the trial was fair.

And the issue is how material this evidence must be in order to cause us to question the basic fairness of the trial.

Our submission is that it is not necessary to find that the evidence would not have affected the outcome beyond a reasonable doubt in order to conclude that the trial was fair, that a much lower threshold is appropriate.

The Court dealt with an issue quite similar to this, obviously, in United States against Agurs, where the Court specified a standard of materiality for cases in which the defense either does not request information from the government's files or makes a general request, and the Agurs standard is that the defendant must show that the undisclosed evidence raises a reasonable doubt about his guilt.

Now, it seems to us that that standard would be an appropriate standard to apply here rather than the harmless beyond a reasonable doubt test that the--

Justice John Paul Stevens: May I ask you a factual question, Mr. Strauss, on this question of whether it was a general request or a specific request?

You mentioned the eleven different requests.

Actually, I guess it is eleven paragraphs in one request for information.

And the eleventh paragraph said,

"all information which would establish the reliability of the Milwaukee Railroad employees in this case whose testimony formed the basis for the search warrant. "

Are they the same two employees?

David A. Strauss: --I think they are, Justice Stevens.

Unidentified Justice: And so wouldn't this have also been responsive to that paragraph?

David A. Strauss: If it was responsive to Paragraph 6, which is the one we are disputing, then I think it would be responsive to that as well.

We would dispute that this has--

Unidentified Justice: The reason I raised it, it seems to me this may be relevant to the specificity of the request, whether it is covered by more than one paragraph.

David A. Strauss: --The respondent has never relied on Paragraph Eleven as a basis for this.

Unidentified Justice: I realize that, but I don't know why.

David A. Strauss: Well, I think probably, Justice Stevens, because it was understood that this had to do with collateral proceedings attacking the search warrant, and not with the trial in chief, but that is speculation.

Unidentified Justice: I see.

David A. Strauss: As I said, the Agurs standard applies in cases where there has been a general request, and this really follows from Justice Stevens's last question.

The request in this case was for deals, promises, or inducements.

And in our view, it is not appropriate to regard that as a specific request in the contemplation of Agurs.

If a prosecuting attorney receives a truly specific request, a request, for example, for the criminal record of the victim, or a request also from a defendant contemplating a defense of self-defense for any evidence in the government's possession that the victim committed acts of violence.

If a prosecuting attorney receives a request like that, we know with some clarity precisely what he is to do.

He is to go to his files and look for certain specific information, and he is to give instructions to the law enforcement officers working on the case that they are to come forward with certain specific documents or evidence if they have it.

It seems to us that when a prosecuting attorney receives a request like respondent's for deals, promises, or inducements, he is really in no better position than he would have been in if he had received no request at all.

He has a duty under Brady and Agurs.

Justice Thurgood Marshall: Well, suppose he had had a request for the names of any proposed witnesses who would be paid for their testimony.

Would that be specific enough?

David A. Strauss: Who would be paid for their testimony?

Yes, certainly, Justice Marshall.

Justice Thurgood Marshall: Really, that is what they wanted here, wasn't it?

David A. Strauss: No, Justice Marshall.

There is no finding that they were paid for their testimony.

Justice Thurgood Marshall: It is just that they testified and they were paid.

David A. Strauss: They performed undercover operations over a period of several months, and then were compensated for that.

I would like to save the balance of my time.

Justice John Paul Stevens: May I ask just one other factual question?

You did mention a unique identifying number was on the contract when signed.

I notice that the number is 490,803,000,000 and some more, which indicates there probably have been quite a few of these forms executed over the years.

Unidentified Justice: 0 [Generallaughter.]

Justice John Paul Stevens: Would this not be a standard thing that a prosecutor would inquire about if there are that many of them floating around?

David A. Strauss: I don't know, Justice Stevens.

My offhand reaction would be that that proves too much, because there obviously weren't that many.

Justice John Paul Stevens: Well, I don't know how many people you have at $300 apiece providing information.

There could be a lot of them.

David A. Strauss: Contracts.

I don't know the answer.

Chief Justice Warren E. Burger: Mr. Hillier.

ORAL ARGUMENT OF THOMAS W. HILLIER, II, ESQ., ON BEHALF OF THE RESPONDENT, APPOINTED BY THIS COURT

Thomas W Hillier Ii: Thank you, Mr. Chief Justice.

If it please the Court, the Ninth Circuit Court of Appeals found that the respondent's constitutional right to confront and cross examine his accusers was materially obstructed as a result of the government's failings in this case.

As a result, at issue here is whether the Court of Appeals correctly reasoned that the non-disclosure in this case resulted in constitutional error and whether it applied the appropriate standard in reaching that decision.

We obviously disagree with the petitioner's position that the Court of Appeals failed to consider the issue of materiality at all, and we take strenuous exception to its characterization of this sort of evidence that wasn't disclosed as non-constitutional, and its attempts to sort of trivialize its meaningfulness within the context of this case.

And I think in order to resolve the case and to really, truly determine what the character of that evidence was in relation to your decision, we have to look to the facts, because there are several facts, as you have already discussed in your questions of counsel for the petitioner, which are especially relevant to this case.

Unidentified Justice: Were you trial counsel?

Thomas W Hillier Ii: I was not, Your Honor.

Unidentified Justice: Were you counsel in the habeas?

Thomas W Hillier Ii: An assistant federal public defender in my office was, Your Honor.

Unidentified Justice: I see.

Thomas W Hillier Ii: I have represented Mr. Bagley on prior occasions, but I was not counsel in this case.

The developments which occasioned this case occurred back in April and May of 1977, and during that time these two railroad employees were under the direct supervision of one single case agent in this case, a gentleman by the name of Mr. Norm Prins.

Between April 12th and May 4th of 1977, the two of them executed four separate affidavits each, a total of eight affidavits, detailing their contacts with Mr. Bagley within the context of their investigation, and at the end of each one of those affidavits, the boilerplate paragraph indicated by counsel stated that they had received no rewards or promises of rewards in return for the statement that they had just made.

On May 3rd, 1977, the day before each of these individuals signed in the presence of Mr. Prins, they executed the contract which is at issue here today, a contract which is labeled For the Purchase of Information and Payment of Lump Sum Therefore.

On May 3rd they executed that contract, indicating an expectation, an objective expectation of return for their investigative efforts.

On the following day, they executed again affidavits indicating that they had not.

Mr. Prins supervised and observed both of these signings one day apart.

Pretrial, as indicated, Mr. Lundine, who was representing Mr. Bagley, filed a comprehensive Brady... or a comprehensive discovery motion.

It is important to note that this pretrial request came in November of 1977, a year after the Agurs decision, which required some sort of specificity if we are going to have the complaint that we do here today.

Within that pretrial discovery request, Mr. Lundine requested, as indicated, any promises or expectation... promises or inducements made to witnesses in exchange for testimony, but that is not all, and we don't rely upon that solely.

As we indicated in our brief, the request was comprehensive.

It goes on.

If I could, and it is in the record, of course, Mr.... pursuant to Brady in a subsequent paragraph Mr. Lundine requested

"notice and copies of all material in possession of the government which is exculpatory, which may be favorable to the defendants or would assist in the preparation of the defense, including promises or representations of any kind made to government witnesses. "

And finally, he stated,

"I would also request any information which goes to the reliability of the two government witnesses in this case that are the subject of this inquiry as it relates to the search warrant. "

So, there were three separate recitals in that discovery motion requesting information about any sorts of inducements or representations or promises which may have been made to the witnesses in this case which may in effect taint their testimony.

In that same month, on November 30th, the government responded to that request and indicated in their discovery response that all statements made by these two witnesses had been turned over to the defense, including the affidavits which are at issue here.

It is interesting to note that in that response government counsel represented that these were the two principal government witnesses.

Missing, of course, was the contract to purchase and pay for information provided in return for their services.

We submit that Agent Prins, who failed to disclose that document, however, didn't forget about it.

Trial commenced in mid-December, from December 12th until December 23rd.

On December 21st, before the trial was even over, Agent Prins went to his supervisor with the contracts in question and requested payment to each of these individuals, $500, in return, as he stated in his documents, which are before the Court, for their investigative efforts and for their testimony at trial.

During trial Agent Prins did this, despite having turned over nothing with regard to those representations to counsel for the accused.

Justice William H. Rehnquist: Mr. Hillier, it seems to me another fact you have got to contend with since you are stressing the facts is that we are not here just judging the conduct of some particular government witness.

We have a habeas proceeding in which Judge Vorhees after this bench trial that you are just describing had all the information that was apparently withheld and said it just wouldn't have made any difference to him.

Now, the Ninth Circuit has said to Judge Vorhees, go ahead and try this case again.

That just seems like a lot of beating around the mulberry bush.

Judge Vorhees is going to come out the same way.

Thomas W Hillier Ii: Well, Judge Vorhees, when this case... if this case is returned to Judge Vorhees, will probably preside over a jury trial, I would expect, Your Honor, so I don't think, and your cases suggest, Clancy, Goldberg, and the like, that we can't speculate as to what is going to happen again.

We can't speculate what could have happened.

Justice William H. Rehnquist: No, but we can speculate as to whether this error that you see would have had any effect on Judge Vorhees' deliberation in this case, and I would think he is a pretty good witness for that.

Thomas W Hillier Ii: Well, Judge Vorhees made a determination based upon what the Court of Appeals suggested was an improper constitutional analysis, and also his factual basis was undermined.

Justice William H. Rehnquist: But he does say, this wouldn't have made any difference to me in trying the case.

You can refine the constitutional arguments all the way you want, but that really has some import in this case.

The Judge who tried it in a bench trial says, if I had known all that you now tell me, I still would have come out the same way.

Thomas W Hillier Ii: Justice Rehnquist, you are correct, that is what he said, but why did he say that?

Judge Vorhees--

Justice William H. Rehnquist: Does it make any difference why he said it?

Thomas W Hillier Ii: --Well, I believe it does, because it goes to the factual underpinnings for his decision, the facts which you must analyze now when you are independently reviewing the constitutional basis for his decision.

Judge Vorhees indicated that, I make this finding because the testimony of these agents as it regarded the drug counts was largely exculpatory.

That simply wasn't the case.

And in fact his verdict belies that.

In reality, and contrary to what government counsel has indicated, what happened here, these two witnesses were key not only in the proclamation of the entirety of the government's case, but they were the only witnesses produced by the government on the drug count.

They were key--

Justice Sandra Day O'connor: Was there other evidence other than the testimony of these two witnesses that would have established--

Thomas W Hillier Ii: --The government... excuse me.

Justice Sandra Day O'connor: --the defendant's guilt on the drug counts?

Thomas W Hillier Ii: Excuse me, Your Honor.

The government presented no other evidence except for these witnesses as relates to the drug counts.

These witnesses... and I think that it is important when reviewing your cases as to whether this information is material, Chief Justice--

Justice Sandra Day O'connor: I mean, there were no statements or confessions or admissions by the defendants themselves that were in evidence relating to the drug counts?

Thomas W Hillier Ii: --As to the nine counts that were reduced down to simple possession, there was contradictory evidence to the agents in the record.

As to the two delivery counts, there was testimony from the defendant himself at trial, but there was no other evidence which was produced by the government.

The defendant himself took the stand and acknowledged that he had made deliveries, but that they were not of the sort contemplated or charged by the government in its indictment.

Unidentified Justice: Deliveries of what?

Thomas W Hillier Ii: Of controlled substances, prescribed, controlled substances, his own controlled, prescribed... prescribed, controlled substances.

Unidentified Justice: What was his testimony again?

Thomas W Hillier Ii: His testimony was that he did not make the deliveries as urged by the prosecution in the case, but he acknowledged that he had prescribed drugs himself that he had given to individuals in the past, including these two agents.

But his testimony was in contradiction to the facts that they attempted to present to the court in--

Unidentified Justice: Was that cumulative testimony or otherwise?

Thomas W Hillier Ii: --The defendant's testimony?

Unidentified Justice: No, the government's testimony.

Was it cumulative?

Thomas W Hillier Ii: Well, the government's testimony, of course, came first, and our argument here is that the defendant was denied the opportunity to prepare a defense which contemplated effectively cross examining these individuals in anticipation of discrediting them.

The reason they didn't do that, of course, was because the government failed to disclose information that they had a right to.

Unidentified Justice: Would his own admissions and his own testimony be sufficient to support Judge Vorhees' decision?

Thomas W Hillier Ii: Your Honor, I think that in order to answer that question, you have to presume that the error which occurred did not constitutionally impact the defendant's rights.

Unidentified Justice: Well, no, that is going around in a circle.

I am asking you a very simple question.

I will start over.

If the only testimony before the court was the testimony that the defendant himself gave, would it support a guilty decision?

Thomas W Hillier Ii: I think the simple answer to that is, I am not entirely certain.

If the exact drugs which were charged in the indictment were the ones which he testified to delivering, I think that you are correct, but of course the defendant ought not to be put in that position of having to... I think what the government is attempting to do is to put the cart before the horse here.

What we are trying to argue--

Unidentified Justice: He testified voluntarily, didn't he?

Thomas W Hillier Ii: --Well, he did, but the strategy employed there was, there was a need to confront the credibility of these witnesses.

They had not any opportunity to do that pretrial or during trial, during cross examination because of the denial of the existence of promises made to these witnesses.

Unidentified Justice: Are you suggesting that if they had... if the defense had been able to have this material so as to challenge the credibility of the two government witnesses, that then he might not have taken the stand and disclosed his guilt?

Thomas W Hillier Ii: That is entirely possible, Your Honor, and again, what your teachings have been, this Court's teachings are that we cannot speculate as to what might have happened.

What we are required to do here is to look at the nature of the error, to analyze the character of the evidence to determine whether its non-disclosure may have impacted a constitutional right.

The constitutional right here is the right to cross examine on a material witness, a key witness, and that wasn't accomplished because the government in effect affirmatively said that there were no promises made to these people by handing over the affidavits which were presented, by Agent Prins's failure to disclose, and, we submit, willful withholding of those documents.

Justice Thurgood Marshall: Let me go back to Justice Rehnquist's question.

This is a hypothetical.

The same type of trial as this, and they produced these two contracts, and the judge, trying it without a jury, says, have gone over the evidence, including these contracts, which I disregard, and find him guilty.

Would that stand up on appeal?

Thomas W Hillier Ii: Well, I--

Justice Thurgood Marshall: On habeas?

Anything else?

Thomas W Hillier Ii: --Yes--

Justice Thurgood Marshall: Would that stand up?

Thomas W Hillier Ii: --Perhaps I am misunderstanding your hypothetical.

Had the court actually received these documents in evidence at trial?

Justice Thurgood Marshall: Yes, sir.

Thomas W Hillier Ii: And the court said, I appreciate the impeachment effort concerning these witnesses, I find their testimony compelling nonetheless.

Justice Thurgood Marshall: Yes, sir.

Thomas W Hillier Ii: I think that we would have a hard time arguing that that case ought to be reversed, because we would be arguing that the factual basis for the court's decision was improper, and of course the court--

Justice Thurgood Marshall: So you admit you could not reverse it?

Thomas W Hillier Ii: --Well, if there were a factual basis.

What I am admitting is that if there were facts which supported a finding of guilt--

Justice Thurgood Marshall: The exact same facts of this case.

The only difference is, the two contracts were put in evidence.

Thomas W Hillier Ii: --Yes.

Justice Thurgood Marshall: And the judge said, despite these, I still find you guilty.

Thomas W Hillier Ii: Then we would be arguing to the Court of Appeals that the court was in error in reaching the decision it did, and we would have a difficult time doing that, Your Honor.

But that isn't the issue here, and that is why Judge Vorhees's analysis was incorrect.

He did not perceive the constitutional significance of analyzing impeachment material pretrial to determine what strategy the case may take.

Judge Vorhees did not have the benefit of this Court's decisions in Strickland and Cronic, which came more recently outlining what effective counsel really is, and Justice O'Connor in her decision said, what we are looking to within the Sixth Amendment context is whether we can have justifiable reliance upon the outcome.

And what that means in Justice Stevens's opinion in Cronic was, a lawyer who is going to truly test the adversarial process of the trial court proceeding, and the way that you do that is through cross-examination, of course, and Justice Stevens then alluded to the Davis decision, which indicates that this type of information, the ability to cross-examine a government witness with impeaching information, is of the most important kind of information when analyzing that effective cross examination question, and that failure to disclose it or to provide it or to limit is constitutional error of the first magnitude, and that is what we are dealing with here.

We never got to the point where we could involve ourselves in that very necessary constitutional right to effective cross examination of these witnesses.

Entire trial strategies were affected, and as Justice O'Connor said in her opinion in Strickland, ineffectiveness, or the effectiveness of counsel includes the ability of counsel to make independent decisions about how to conduct a defense.

We had a jury waiver in this case.

We had no cross examination of the key government witnesses.

We don't know what would have happened, and Clancy and Goldberg and your other teachings suggest we should not speculate as to what might have happened, but rather we look at the character of the evidence which was withheld, determined whether it was in fact of such magnitude that it impacted the constitutional rights of the defendants, and if it does, then you are going to reverse under the harmless error doctrine.

And if there is government interference in that process, actual government obstruction, then it is presumptive error, and we submit, and the Court of Appeals found in this case that the government's failure to disclose and their affirmations that these witnesses had had no promises concerning rewards, it was tantamount to government interference with the ability of counsel to conduct his defense.

Unidentified Justice: Mr. Hillier, if we should agree with you, what about the holding that this required automatic reversal?

Thomas W Hillier Ii: Your Honor, as we indicated in our brief, that holding is effectively dicta, and I don't believe I am any happier with it than the Solicitor General is.

I expect had it not been there, perhaps we wouldn't be here.

But the effect of that language, of course, has to be dealt with, but what you look to in the decision is whether in fact the Court of Appeals analyzed the materiality, and of course the Court of Appeals in reaching its decision alluded to Brady, to Agurs, the standard set forth in Agurs, and to Davis, and the Court of Appeals then said, looking at Brady, the mandate of disclosure, and looking at Agurs, which says a failure will seldom, if ever, be excusable where there is a specific request, and this is a specific request case, and if it impacts a cross examination right, such as in Davis, then we are going to talk about reversal.

I think that the decision needs clarity, and that, of course, is the function of you at this point, is to add some clarity to the Court of Appeals' opinion.

Unidentified Justice: Well, I know, but do we do it, or do we say they were wrong to require automatic reversal?

Do we send it back?

Thomas W Hillier Ii: That is not necessary, Your Honor.

I think what is necessary is to say that the language is improvident within the context of this decision, and that in looking at Giglio, there is a requirement of materiality in non-disclosure cases, but in this case there was materiality, so the result of the Court of Appeals was correct, but this does not mean that there is an automatic reversal rule that each case has to be analyzed on a case-by-case basis, and that instruction should be sent forward to the Courts of Appeals.

To summarize, the constitutional basis for our argument is, the government here did fail to disclose information as mandated by Brady.

The failure was to a specific request, and under Agurs, those sorts of failures are seldom, if ever, excusable.

When looking at the character of the evidence, as urged in the Agurs decision, we find that it involved impeaching information of critical importance.

To answer your question, Justice Rehnquist, it is our opinion that Giglio did decide that impeaching information fell within the purview of Brady, that is, that it is favorable information, that is information that must be presented to the accused within the mandate of Brady.

And of course Davis, Napue, Giglio, and Brady all talked about the importance of impeaching information.

The character of that evidence is manifestly important to the accused.

We look to the counsel's effective assistance through cross examination as mandated by Davis, Strickland, and Cronic, and we find that there was no cross examination.

In fact, the trial court found that there was no cross examination in this case, and that is apparent.

We rely upon the statements of the government in this case.

And that brings us to the practicalities.

We are dealing in the federal criminal discovery process, and as indicated in Agurs, it is not perfect.

There is not full disclosure, and we are going to have problems like this from time to time.

Defense counsel in these situations is singularly reliant upon the forthrightness of the prosecutor in responding to government... or to discovery requests.

We have no capability to look into their file.

Here, where we ask for promises of reward or remuneration for any kinds of representations or inducements made to any witnesses, anything which might shed light on his reliability.

Then I agree that the prosecutor was charged with going to his agent and saying, hey, have you promised this guy anything?

Is there anything that we have got to let the defense counsel know which may impact the credibility of the witnesses in this case?

Well, the response to that in our case was to produce affidavits which clearly suggested to the contrary.

As a result, cross examination was limited effectively and materially, and the constitutional rights of this defendant, we submit, were impermissibly infringed.

Justice John Paul Stevens: May I just ask one question, Mr. Hillier, there?

It is true, however, is it not, that the affidavits that were made available to you made it clear that these two men were cooperating with the government in an undercover capacity, even though they didn't know they got specific payment for it?

Thomas W Hillier Ii: That's correct, Your Honor.

Justice John Paul Stevens: So there was some material that could have been used for cross examination purposes, even though they could not have made this particular--

Thomas W Hillier Ii: There was the ability to cross examine the agents as to the factual basis for their conclusions.

There was no ability to cross examine as to their bias, their motive, their expectation of remuneration.

Unidentified Justice: --Why not?

Thomas W Hillier Ii: Because there was an affirmative representation by the government that they had had no promises for payment.

Unidentified Justice: Yes, but if there hadn't been those representations, you normally would have asked them... the trial counsel would normally have asked if they had been paid or if any promises had been made to them.

Is that right?

Thomas W Hillier Ii: Your Honor, you are shooting in the dark when you are doing that.

If the government--

Chief Justice Warren E. Burger: Well, so isn't a lot of cross examination shooting in the dark?

Thomas W Hillier Ii: --I suspect you are correct, Chief Justice, but in this case we have had a representation from the government that nothing had been made.

It certainly is not a failing on counsel's part to not have asked that question, and if they had asked that question, we don't know what the answer would have been, and again, Goldberg and Clancy suggest that we don't speculate.

As Justice Brennan was discussing earlier--

Justice Thurgood Marshall: I can tell you what the answer would be if they had been paid and it was known they had been paid.

The first question the prosecution would ask, have you been paid?

Thomas W Hillier Ii: --Well, that's correct.

Justice Thurgood Marshall: Isn't that the way it is done?

Thomas W Hillier Ii: That is the way it is done.

In this case--

Justice Thurgood Marshall: And if it is not done that way, the defendant automatically asks, are you paid?

Thomas W Hillier Ii: --Well, I think--

Justice Thurgood Marshall: Isn't that true?

Thomas W Hillier Ii: --in the federal court we rely upon the federal prosecutor, and when he said he wasn't paid, we accepted that response, to our detriment, and as indicated in Barbie, we don't even know if the U.S. attorney knew.

Justice Thurgood Marshall: Is that the adversary process?

Thomas W Hillier Ii: The adversary process does not require that an attorney ask every question if the question does not appear to be relevant or that a response will not be favorable to the accused.

If I ask somebody if he is being paid expecting that he is going to say no, then I am asking the wrong question, and I am hurting my client because I am reinforcing the credibility of that agent.

And even more so, in this case can you imagine the possibilities with the cross examination.

Here we have an affidavit executed on May 4 saying I'm not promising anything, and on May 3rd we have an affidavit, a contract for purchase of information.

Why, if that had been turned over, the possibilities for effective cross examination are immense, and it is particularly immense because there was no monetary amount--

Justice Thurgood Marshall: If the first one had been turned over, you wouldn't have gotten those affidavits.

Thomas W Hillier Ii: --Well, the affidavits would have had to have been produced under Jencks, because they were statements of the accused, or of the witnesses, so the possibilities for cross examination, as I have indicated, are tremendous, and they are even more tremendous because there was no actual amount set forth, so we are dealing with a person who is testifying and hopes to get the most amount he can possibly get.

Unidentified Justice: Mr. Hillier, what do you think is the standard for judging the materiality of this failure to produce?

Is it the Agurs standard?

Thomas W Hillier Ii: It is the Chapman standard.

Unidentified Justice: Why Chapman?

Thomas W Hillier Ii: Well, because we are dealing with... Agurs simply states that when you deal with constitutional error, then you analyze it on the basis of whether it was harmless beyond a reasonable doubt.

Agurs states... Agurs does not--

Unidentified Justice: Well, I know, but beyond a reasonable doubt, that is a harmless error standard, isn't it?

Thomas W Hillier Ii: --It is a constitutional harmless error standard.

Unidentified Justice: I mean, it says there is an error, but under Agurs there is no constitutional error at all unless the omitted evidence creates a reasonable doubt that did not otherwise exist.

If the omitted evidence creates such a reasonable doubt, there is constitutional error, and you never reach a harmless error standard.

You can't reach a harmless error standard.

Thomas W Hillier Ii: The Agurs standard which you have just--

Unidentified Justice: Isn't that the Agurs standard?

Thomas W Hillier Ii: --That is the non-constitutional Agurs standard which applies in general or unspecific, or general or no request situations.

Agurs states--

Unidentified Justice: Where do you get out of Agurs that there is a different standard for a specific request?

Thomas W Hillier Ii: --Agurs states where there has been a specific request, then these kinds of situations will seldom if ever be excusable, and if there is a possibility that it might--

Unidentified Justice: All that means to me is that seldom if ever would there not be a reasonable doubt.

Thomas W Hillier Ii: --Agurs went on to indicate that if it might have affected the jury's verdict, then it is reversible error under the strict disclosure standard.

That is what Agur said.

Unidentified Justice: That is the same... is there any difference between that and just reasonable doubt?

Thomas W Hillier Ii: Absolutely, Your Honor.

I think in constitutional error cases, first of all, the prosecutor bears the burden of indicating that it was harmless.

In the opposite, in the non-constitutional situation--

Unidentified Justice: What do you think this standard, this reasonable doubt standard I just read to you is, a constitutional error standard?

I thought it was.

What kind of a... is this a non-constitutional standard?

Thomas W Hillier Ii: --Within the context... ours is a constitutional error, Your Honor, because there was a failure to provide specifically requested evidence.

Unidentified Justice: I am asking you now under the test in Agurs for a general request.

Thomas W Hillier Ii: Yes.

I agree with the Solicitor General that the analysis of that kind of error is a non-constitutional analysis.

It becomes constitutional error if the defendant is able to meet his burden of persuasion in that case of showing that notwithstanding the non-constitutional nature of the disclosure in this case, the failure to disclose, and it is non-constitutional because there is no specific request, or the prosecutor wasn't put in a position where he had to respond, or the prosecutor responded dishonestly, then the defense bears the burden of showing that it interrupted the fair trial process of that particular case.

Then it elevates to the constitutional... then it is constitutional error, but the analysis, the standard of review is different.

Justice Sandra Day O'connor: Well, Mr. Hillier, even in Strickland, which involved a Sixth Amendment right to counsel, the standard applied was the Agurs standard of establishing a reasonable probability that but for the error, the result would have been different, and I wonder if that isn't the appropriate standard here if you are correct that there was an error.

Thomas W Hillier Ii: No, Your Honor, it would not be, because Strickland was referring to the non-constitutional error aspect of the Agurs decision.

It is our position... and Agurs indicated that to determine whether it is constitutional or non-constitutional, you look to the character of the evidence.

Justice William H. Rehnquist: Strickland was a state case.

How could it be referring to some non-constitutional standard?

Thomas W Hillier Ii: Your Honor, in order to get here, of course, we have to urge that there is constitutional error, but in reaching the determination of whether there was constitutional error, there are various standards which apply.

When there is a head-on collision with a constitutional right, such as in Gideon where you say no lawyer at all, then that is presumed, and you have that collision.

There are other types of error which result from a non-constitutional basis, such as the failure to disclose in the Agurs situation, which then require a different standard of review from the court to determine whether--

Unidentified Justice: It would still have to be a constitutional issue to reach any state case, or a federal case either.

Thomas W Hillier Ii: --Sure.

Yes, Your Honor.

That is true.

Justice Sandra Day O'connor: It sounds to me like you are putting the cart before the horse.

After you meet the standard, then you know whether there has been a constitutional error or not.

You don't get here assuming there is a constitutional error.

You allege there is one, but you apply the standard in order to determine whether it is.

Isn't that correct?

Thomas W Hillier Ii: Yes, Your Honor.

Chief Justice Warren E. Burger: Let me see if I have your position clear.

If in the prosecution the only evidence from whatever source was the same evidence that this man, the defendant, gave on the stand, testifying in his own behalf, and a jury returned a verdict of guilty, would that verdict have been assailable?

Thomas W Hillier Ii: Your Honor, under that hypothetical, we would have difficulty, but that is... that presumes that there was not the constitutional violation, the confrontation which existed--

Chief Justice Warren E. Burger: It presumes nothing.

I have put a simple hypothetical here.

The only evidence is the evidence that he gave, whether from his mouth or from others, and the jury accepted that and found and returned a verdict of guilty.

Do you think there would be anything really wrong with that verdict?

Thomas W Hillier Ii: --Well, I guess--

Chief Justice Warren E. Burger: In a legal sense.

Would it be assailable?

Thomas W Hillier Ii: --I think that again the counsel always has a difficult time assailing the verdict of a trier of fact.

What we are alleging, however, is a constitutional impediment which affected that burden, and that is why--

Chief Justice Warren E. Burger: That is not in my hypothetical.

Thomas W Hillier Ii: --I understand that, Your Honor.

And in response to your question, of course, absent constitutional error, if a jury returns a verdict based upon evidence presented, we are going to have a difficult time arguing to a Court of Appeals.

Chief Justice Warren E. Burger: Now take the same hypothetical, but not a jury, a judge makes that finding.

He could not be reversed unless it were found to be clearly erroneous.

Is that not so?

Thomas W Hillier Ii: Yes, Your Honor, in the absence of a constitutional error which affected that decision, then we would--

Chief Justice Warren E. Burger: Well, in my hypothetical there is no constitutional question.

Thomas W Hillier Ii: --I understand that, and in response to your hypothetical--

Chief Justice Warren E. Burger: A pure factual question.

Thomas W Hillier Ii: --Yes.

Chief Justice Warren E. Burger: Thank you.

Thomas W Hillier Ii: Thank you.

Chief Justice Warren E. Burger: Do you have anything further, Mr. Strauss?

ORAL ARGUMENT OF DAVID A. STRAUSS, ESQ., ON BEHALF OF THE PETITIONER -- REBUTTAL

David A. Strauss: One or two brief points, Mr. Chief Justice.

We discussed the affidavits, which I think are a pure red herring in our redly brief, and I won't pursue them further.

We also mention in our reply brief that in addition to the testimony of the agents, there was a search of the defendant's residence that found some controlled substances.

I have two--

Justice Sandra Day O'connor: So the evidence supporting the drug charges other than the testimony of the two witnesses at issue here consisted of testimony of the defendant himself by way of some admissions, and physical evidence obtained in a search of his residence?

David A. Strauss: --That is right.

There was also that evidence in the case, Justice O'Connor.

Justice John Paul Stevens: Weren't there two groups of drug charges, and weren't their testimony important on the ones he went to jail on?

David A. Strauss: I don't think it is clear which ones he went to jail on.

He received probation which was subsequently revoked on all counts.

I don't want to suggest that their testimony was unimportant on any of them.

But there was additional evidence.

It is a mistake to say that their testimony was the only evidence in the case.

I want to make one point about what has happened generally in this area since Agurs, and then one point about this case in particular.

In Agurs, the Court specified a standard that would apply to no request or general request cases, and the Court said that a request for all Brady material or all helpful material would be a general request.

But the Court left open the possibility that a specific request would be judged by a different standard.

Now, I think what the response to that has been, and this case is an excellent example of it, is that defense counsel have tried to take the general request for all Brady material and break it down into a dozen or so abstract categories, all deals, promises, and inducements, all information casting doubt on the reliability of the witnesses, all statements.

They have tried to rephrase the general request into requests that while not as all-encompassing, when taken together cover the waterfront, and as Mr. Hillier was arguing, that was essentially the way he presented his requests.

He said, we wanted to know everything they had.

We wanted to know if there was anything that would cast doubt on the testimony of these agents.

And he suggested that when the prosecutor received these discovery requests, he should have gone to the agents and said, is there anything we should let the defendant know?

That is our point exactly.

These were essentially general requests that left the prosecutor no better off than he would have been if he had just gotten a request for all Brady information or no request at all.

He would have had to go to the agents and say, is there anything we should let the defendant know?

Justice Sandra Day O'connor: So the Agurs-Strickland test or standard is the appropriate one in your view?

David A. Strauss: Yes.

Justice Sandra Day O'connor: The brief was a little vague that the government filed, and I didn't understand what the government thought.

David A. Strauss: We think there are some true specific request cases where you have a truly focused specific request where an argument can be made for a more exacting standard than Agurs.

Justice Byron R. White: Do you understand Agurs and Strickland to say that there is no constitutional violation at all unless what was done or not done would have created a reasonable doubt that otherwise would not have existed?

David A. Strauss: That is right.

Justice Byron R. White: And so if such a doubt exists, there is no occasion or reason to reach the harmless error.

David A. Strauss: That's right, because then you know the trial was unfair, and you have to have a new trial.

Justice Byron R. White: Exactly.

David A. Strauss: I think that is exactly right, Justice White.

In fact, I realize, Justice White, I should have answered your earlier question by quoting from Agurs at Page 108, where it says precisely that.

Unidentified Justice: Well, now, tell me what... I thought I understood your brief to say that Agurs and the government would... well, you say Agurs did not establish a different standard for a specific request.

David A. Strauss: That is right.

It did not... It left the question open.

Unidentified Justice: Well, and I thought your brief said that the same standard should apply to specific requests.

David A. Strauss: We left open the possibility, as Justice O'Connor noted, that there may be some true specific request cases in which a standard more exacting than Agurs would be appropriate, although not a beyond a reasonable doubt standard, which we think should be reserved for truly egregious cases like the--

Unidentified Justice: Well, what if it were perfectly true in this case that the government committed... they just perjured themselves in these affidavits?

What if it were perfectly clear?

You say it isn't clear, that it was just a lot of general things.

David A. Strauss: --I think it is clear they did not perjure themselves.

Unidentified Justice: Yes, but what if it was clear that they did?

David A. Strauss: If they perjured themselves in the trial, then Giglio and Napue--

Unidentified Justice: No, no, in these affidavits.

David A. Strauss: --I think that would probably not even be a Brady question.

I think that would be a more general fairness problem.

It would be as if the prosecutor lied to the defense counsel in a series of colloquies or in some other way took steps to mislead him.

It would present a fairness problem, but not one that really lends itself to Brady and Agurs.

Unidentified Justice: Would you approach it from the standpoint of a fair trial issue?

David A. Strauss: Yes.

That's right.

Unidentified Justice: You would, still would?

David A. Strauss: Yes.

Unidentified Justice: Not just some supervisory way of censoring the prosecutor?

David A. Strauss: It might be appropriate to censor the prosecutor as well.

I think there may be cases in which prosecutorial misleading of the defense would reach a level to call the fairness of the trial into question.

I see my time is up.

Thank you.

Chief Justice Warren E. Burger: Thank you, gentlemen.

The case is submitted.

Featured:

Seattle Times Co. v. Rhinehart - Oral Argument

Thu, 30 Aug 2012 22:14:34 +0000

Case:

Seattle Times Co. v. Rhinehart

Media File:

82-1721_19840221-argument

Related Transcript:

82-1721_19840221-argument

Transcript:

ORAL ARGUMENT OF EVAN L. SCHWAB, ESQ., ON BEHALF OF THE PETITIONERS

Chief Justice Warren E. Burger: We will hear arguments next in Seattle Times v. Rhinehart.

Mr. Schwab, you may proceed whenever you are ready.

Evan L. Schwab: Thank you.

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

This is an action for defamation and invasion of privacy.

The trial court, the Superior Court of King County, entered a protective order which bars the defendant newspapers and reporters from publishing certain types of information acquired during discovery.

The Washington Supreme--

Chief Justice Warren E. Burger: Where were these papers filed at the time they were sought, Mr. Schwab?

Evan L. Schwab: --Most of the discovery had not been completed at that point.

Some of the discovery--

Chief Justice Warren E. Burger: Well, was it on file or not?

Evan L. Schwab: --Yes.

The discovery we had received to that point had been filed.

Rhinehart, Mr. Rhinehart had furnished his income tax returns, and they had been filed with the public file in the King County Clerk's Office.

The Washington Supreme Court upheld the order, and we are asking this Court to reverse and remand because the order violates our clients' First Amendment rights of free expression.

The practical effect of the order below, we submit, is to enjoin--

Unidentified Justice: Well, how about the rest of the answer to the Chief Justice's question?

Evan L. Schwab: --I'm sorry.

Unidentified Justice: The only things that you sought had been already been filed in the public record?

Evan L. Schwab: Oh, I'm sorry, sir.

The information we had received at that point had been filed.

The protective order came up in connection with our motions to compel further discovery, and after long motions over their efforts to resist discovery and our efforts to get discovery, the trial court entered a broad order compelling significant discovery and at the same time entered the protective order in question.

We have not received that discovery because the trial court order provided that they did not have to comply with it until judicial review concerning the protective order was finished.

So at this point in time we don't have most of it.

Chief Justice Warren E. Burger: Well, I'm afraid my question wasn't really clear enough.

Ordinarily, the returns on pretrial proceedings, discoveries, interrogatories, are not on file in the clerk's office.

They remain in the custody of the lawyers until they are offered in evidence.

Now, were these things that you were seeking in the possession of the clerk or still in the possession of the lawyers?

Evan L. Schwab: Some of what we were seeking was in the possession of the clerk.

Most of what we were seeking hadn't been turned over yet and is still with the Respondents.

Justice William H. Rehnquist: So that... so far as that stuff is concerned, your right of access to it really depends on the court order, doesn't it?

Evan L. Schwab: On this court order, that's right, sir.

Unidentified Justice: On the--

Evan L. Schwab: The court below reserved its final judgment on discovery until we completed this.

Justice William H. Rehnquist: --Well, but your original right of access to it under the discovery rules depended on the decision of the Superior Court in Washington to grant your discovery.

Evan L. Schwab: Yes, it did.

And it granted our motion, and it ordered the discovery, and that discovery was deemed relevant by the State Supreme Court.

Both orders went to the State Supreme Court, and it affirmed the order compelling discovery and ruled that the material we sought was relevant to their claim in our defenses.

Justice William H. Rehnquist: Well, in a sense, the order that conditions your access to the discovery is of the same parcel with the order that granted you discovery, isn't it?

Evan L. Schwab: I think that's right, yes.

Justice Sandra Day O'connor: If the court had denied you discovery altogether in this order and just said no, you can't have it, would you be here with this argument?

Evan L. Schwab: I think the argument would be quite different.

We would be arguing that we should have the discovery, that we needed to defend ourselves.

We--

Justice Sandra Day O'connor: But no First Amendment right to discovery.

Evan L. Schwab: --Well, I think that in the context of a defamation action, Your Honor, in which we are being sued on allegations that we have defamed the Respondents, there may be some constitutional overtones to discovery.

This Court has erected certain tests for the defense of these actions in cases like New York Times and Gertz, and in order to defend ourselves, we would need that discovery.

That might get closer to the Herbert v. Landau kind of--

Unidentified Justice: Well, could we take just a little... let's take a specific example.

Suppose that you had noticed a deposition, and you wanted it, and the deposition was taken, or the other side had.

Now, do you say that even if the deposition was never filed, never used at court, that you would have the right to publish it?

Evan L. Schwab: --The question involves two elements.

In a pretrial setting, if we had taken the deposition, yes, we do assert that we have a constitutional right to publish the contents of that deposition.

Now, in the--

Unidentified Justice: Even if it is just in the possession of the lawyers and both lawyers say it is none of your business?

Evan L. Schwab: --Yes, sir.

Unidentified Justice: And I would think... that position, I take it, that isn't dependent upon your being a defendant in the libel suit.

Evan L. Schwab: Oh, access might be dependent.

There are access cases going on around the country right now in which the media is seeking access.

Unidentified Justice: What if you weren't a party to this case and it was just any civil case in which a deposition had been taken and the results were in the possession of the lawyers?

I thought your argument was that the press has the right to have access to those depositions?

Evan L. Schwab: No, sir, I don't argue that.

Unidentified Justice: But it is... but you certainly would say that if a deposition was filed in court, that you had the right of access to it.

Evan L. Schwab: Well, the access questions are different.

I think I would argue that the right of access might depend on whether or not the deposition was used on a motion or a trial by the court, and that's how the access cases around the country are going.

And similarly with interrogatories?

Frequently they are filed as public records in most courts.

The answers are filed and placed in the clerk's office, and of course, then they are open to the public and can be published.

Unidentified Justice: Yes, yes.

Evan L. Schwab: In our state that's the practice.

Unidentified Justice: Yes.

Evan L. Schwab: Now, normally, documents aren't filed with the clerk.

This case was unique because the Respondents not only gave us the tax returns but immediately filed them with the clerk's office.

Subsequently, that order was sealed.

The court entered an order sealing the clerk's file in the Superior Court, but the Respondents did not seek an order to seal it in the State Supreme Court or here, and those tax returns are now public records with the clerk of this court.

Unidentified Justice: Let me see if I have got this... the picture is a little confused because your client is a litigant and is also seeking some information not as a litigant but as a representative of the media.

Evan L. Schwab: Oh, we are seeking it as a litigant, sir.

Unidentified Justice: What about two private parties who have a lawsuit and they are taking depositions pretrial and they are having interrogatories, and none of them are filed; they remain in the possession of the lawyers?

Are you suggesting that those are part of the public record until and unless they are offered in evidence?

Evan L. Schwab: I would... again, I would like to say the access question, but we are not seeking this under rights of access but rather as a litigant, but I think the access questions are different, and I think that the depositions that are in the files of the lawyers that have never been submitted to a court in connection with a summary judgment motion or any other kind of dispositive motion would probably be treated differently.

And that's how the lower courts are coming out.

Unidentified Justice: Well, that's what you answered to me before, isn't it?

Evan L. Schwab: I believe so.

But we are seeking this material as a litigant, to defend ourselves, not--

Justice William H. Rehnquist: Well, Mr. Schwab, in both your answers to the Chief Justice's question and to Justice Blackmun, you refer to access cases and then intimate this is not an access case.

Evan L. Schwab: --Correct.

Justice William H. Rehnquist: How do you define an access case?

Evan L. Schwab: The access cases are the cases in which the press as a nonlitigant is seeking access to the discovered information, and that is not this case.

I think different tests may well apply, and that has not been dealt with by this Court in the context of civil discovery and civil proceedings.

But we do think it is a different case.

Unidentified Justice: And of course, I suppose if you were just... if the press were just a litigant in a tax case in which there were depositions, you wouldn't be making the same arguments that you are making here.

I suppose the reason you are making these arguments is that you are a defendant in a libel suit.

Evan L. Schwab: We think the argument receives... is worthy of additional weight in a libel suit, but there would also be situations in other kinds of litigation.

Unidentified Justice: You would not, what... in a tax case you have a First Amendment right to access?

Evan L. Schwab: Well, not to access, sir.

If we have obtained it through discovery... if we are a litigant in a tax case and we put out interrogatories--

Unidentified Justice: You have First Amendment right to publish it.

Evan L. Schwab: --To publish.

We are arguing that once we receive the information, the First Amendment affects our right to publish that information.

Unidentified Justice: Well, Mr. Schwab, you are not making that argument as a litigant.

Evan L. Schwab: Yes, sir, we are.

Unidentified Justice: Your right to publish, you are making that argument as a litigant?

Evan L. Schwab: We are arguing... yes, we are arguing that as a litigant we have First Amendment rights in the judicial process and First Amendment rights in--

Unidentified Justice: Well, you mean as a news media litigant?

Suppose you were not?

Evan L. Schwab: --The same argument would be made.

Unidentified Justice: It would?

Evan L. Schwab: Although I think the argument has greater force for members of the media and for public interest advocates such as consumer groups, the NAACP, the ACLU and organizations like that.

Unidentified Justice: You have no cases to support you on that from around here, giving the press superior rights to another litigant, do you?

Evan L. Schwab: Well, I'm not asking for superior rights.

I think there are a broad category of litigants who have First Amendment interests at stake in litigation.

Unidentified Justice: Well, how does publication further your interests as a litigant?

Evan L. Schwab: There are several ways publication can further our interest.

We are being accused of writing false stories.

If we obtain information through discovery that corroborates our stories, we have an interest in bringing that to the public's attention.

A, it improves public--

Unidentified Justice: Before the trial has been held?

Evan L. Schwab: --Before the trial has been held, sir, and that's what we're asking.

Unidentified Justice: Well, then you are asserting right as media, not as a litigant.

Evan L. Schwab: But I think the same right would exist in a nonmedia defendant.

If, for example, a consumer group is suing over a polluted stream, chemical wastes, toxic wastes and so on, and they learn through discovery that their claims are true, that that stream is polluted, I think they have the same First Amendment interest in being free from a judicial order that prevents them from publicizing what they have learned.

Unidentified Justice: Publish in what, in their journal?

Evan L. Schwab: I'm sorry, sir?

Unidentified Justice: To publish it where, in their journal?

Evan L. Schwab: Well, I don't think where is as much the test as whether they have a right to disseminate it.

The trial court order in this case gags us from either disseminating it ourselves or giving it to other media or using it in any other way.

We are gagged.

We are told that once we get this information, we cannot use it for any purposes other than preparation for trial.

Unidentified Justice: You can use it as a litigant, of course, can't you?

Evan L. Schwab: Yes, that's the only... the only way we can use it.

Unidentified Justice: And you are, I repeat, asking for a special right because your client happens to be a newspaper.

Evan L. Schwab: We are asking for a right on behalf of anyone who has First Amendment interests at stake in a litigation, and that would apply equally to, and particularly, the public interest advocates.

Unidentified Justice: Well, how can you tell whether someone has First Amendment rights at stake in the litigation?

Evan L. Schwab: I think on a case-by-case basis, depending upon the function of the litigation.

I am just arguing that they have a stronger right, but the argument I am making would apply equally to all members.

Unidentified Justice: I thought you just were arguing that any litigant, when he gets discovery, has a First Amendment interest in being able to publish the results of the discovery.

Evan L. Schwab: Exactly.

That's our argument.

Unidentified Justice: And just anybody in any kind of a case.

But that isn't the same argument you made two minutes ago.

In any kind of a case.

Evan L. Schwab: Well, I'm trying to say that the public interest litigants might have a stronger argument, Your Honor, but basically I am arguing that any litigant has a protected First Amendment interest in being able to disseminate or use for any purpose--

Unidentified Justice: In any kind of a case, whether it is libel or tax or science or environmental or whatever?

Evan L. Schwab: --I think lines can be drawn.

We advocate--

Unidentified Justice: Well, does a defamation litigant have a greater First Amendment right than any other kind?

Evan L. Schwab: --Well, it's hard to say people have a greater First Amendment right.

I think they all have First Amendment interests.

We are suggesting a balancing test in our brief--

Unidentified Justice: Well, this is independently, then, of this being a defamation suit in your argument for a First Amendment right to publish.

Evan L. Schwab: --I'm arguing, yes, whenever a trial court presumes to freeze discussion, I'm arguing that the court should be required to weigh the First Amendment interests at stake, much like you did in Nebraska Press v. Stuart, that the First Amendment considerations are entitled to a place on the scale.

Now, sometimes they may not carry the balance, but at least they should be taken into account, and the trial court and the Supreme Court didn't do this.

This is the thrust of our argument.

They gave our First Amendment rights virtually--

Unidentified Justice: And yet you are talking only about a litigant's right, and you are not talking about a litigant's right who just happens to be the defendant in a libel suit, or you are not talking about a litigant's right just because he's a member of the press.

Evan L. Schwab: --That's right, Your Honor.

Unidentified Justice: Then it would be your view, if you postulate this hypothetical question, proposition, an individual sues a bank, his own banker for any reason you can conceive of.

They take a lot of pretrial discovery by way of testimony an interrogatories, and each lawyer for each side keeps them in his own office, none of them are filed.

Do you say that there is some First Amendment right of someone to publish that information before it is ever offered in evidence?

Evan L. Schwab: I'm saying the litigants themselves are protected by the First Amendment.

If they choose to make it available to the press--

Unidentified Justice: Well, then, could one of the litigants take a page ad, let's say, in the Seattle Times, and... or two pages, even better, and publish all these pretrial depositions over the objection of the other party?

Evan L. Schwab: --Yes, Your Honor, that's exactly our argument, and that's happening around the country right now.

I am involved in a case like that on the west coast in which the other side did, as soon as the depositions were taken, give them to the press.

Justice Thurgood Marshall: Do we have to go that far?

Evan L. Schwab: No, Your Honor, you don't.

I'm not arguing for an absolute rule.

I am arguing instead for a balancing test which balances the First Amendment considerations.

There will be cases in which an order like the one below can be sustained under constitutional analysis.

Trademark cases might be a good example, other instances of commercial inclination.

There was a recent decision from the D. C. Circuit in the Tavoulareas case in which the court turned down the Washington Post's request to publish thousands of pages of depositions and documents after the trial was over.

Mobil was the party that had obtained the protective order, and they were a nonlitigant.

They had been forced to turn over a tremendous amount of discovery for that libel action between their president and the Washington Post.

After the trial was... and they had done so under a protective order.

After the trial was over, the Post sought to unseal all that material.

At this points you are dealing with a nonlitigant and a tremendous mass of material that was not relevant to the issues in the case.

It was never offered and used in the Tavoulareas court, and the D. C. Circuit said that that material could not be published.

I think that is a different case than the one we had here--

Unidentified Justice: What difference does it make that it was not relevant?

What difference does it make that it was not relevant to the issues if it is material that the public is interested in?

If relevance to the issues is the determining factor, then you might as well just wait until the case is tried.

Evan L. Schwab: --I think that is a factor, Your Honor.

Interest to the public is another factor.

The First Amendment interest of the one who wants to publish it is a factor.

And we are only arguing again for something that weighs all of these various considerations.

I was using that as an example.

Unidentified Justice: Would you say that a lawyer who is a free-lance writer on the side would have the same First Amendment right?

Evan L. Schwab: I think in many cases he would.

Unidentified Justice: He would?

Evan L. Schwab: I think the First Amendment applies equally, and one of the cornerstones of our jurisprudence has been that the First Amendment rights should not be restrained in advance.

We... the courts and your decisions have leaned more towards subsequent punishment.

In this case it is more akin to a prior restraint.

Justice William H. Rehnquist: Well, I don't see how you can argue that, Mr. Schwab, because the Superior Court should have... could have said no, we are not going to give you any discovery in this case.

We follow this rule that when you get into very private subjects, we just don't allow discovery.

Why can't the Superior Court equally well say that we will allow discovery here, but as a condition to this access that we are granting you to this information, you are not to publish it?

I don't see how you could call that a prior restraint.

Evan L. Schwab: We submit, Your Honor--

Justice William H. Rehnquist: When the access that you get is made conditional in the very granting of the access.

Evan L. Schwab: --That's correct, and that was part of the reasoning that the D.C. Court went through in Tavoulareas.

We submit that that is not sound First Amendment analysis because there are a long line of cases which say that the government cannot both confer a benefit when it is conditioned upon giving up constitutional rights.

Justice Sandra Day O'connor: Well, how about the Snepp case?

Evan L. Schwab: Well, I think Snepp is distinguishable.

Snepp involved a government employee and matters of national security, and I think the government as an employer has a much different interest in the fiduciary responsibilities of its employees than a judge has in the behavior of litigants before it.

The Seattle Times in this case is an involuntary litigant.

It has been dragged into a case against its will, and we submit, by a plaintiff who uses defamation suits to stifle discussion of his affairs, and by getting this order, he in essence has gagged us and enjoined a libel.

I think that is quite different than the power of government to impose reasonable restrictions on its employees.

Now, Snepp had signed a contract that he would submit--

Chief Justice Warren E. Burger: Suppose you have two lawyers in some heavy litigation of the kind we are talking about who are dismayed at the prospect of the excessive cost of pretrial discovery and interrogatories, and they agree informally that plaintiff's lawyer will submit a series of informal questions by letter to the defendant's lawyer, and they will reciprocate, and these will be answered informally, and yet with a stipulation both ways that to the extent relevant to the case, if it ever goes to trial, these may be used in evidence as admissions.

Now, this is all in the lawyers' offices.

You say someone has a First Amendment right to publish that?

Evan L. Schwab: --The First... yes, Your Honor, I think so.

Chief Justice Warren E. Burger: Who would have that right?

Evan L. Schwab: Either, either side.

In the absence of a protective order--

Chief Justice Warren E. Burger: Either side.

Evan L. Schwab: --Either one of them would have a right--

Chief Justice Warren E. Burger: Now, what about, what about demand of the local newspaper to get at those things?

Evan L. Schwab: --I think they would have a right to say we don't want to give it to you, and then if the newspaper sought a court order, we would be under the different line of reasoning of the access cases.

Chief Justice Warren E. Burger: But either litigant could take a coupe of pages in the local newspaper and put it all there?

Evan L. Schwab: Yes, Your Honor, again, subject to the laws of defamation, right of privacy, subsequent punishment and so on if he utters falsehoods.

But if he has obtained true information and believes that it's important to publish that, I believe he has a First Amendment right to do so.

But more importantly, we're submitting that a court cannot restrain him, should not restrain him in advance from doing so without giving due consideration to his First Amendment rights on the one hand and all of the other reasons for banning publication on the other hand.

And that's really what this case is about, is whether or not some standards need to be laid down.

The courts below used tests and standards which gave virtually no weight to our First Amendment considerations.

The trial court basically--

Chief Justice Warren E. Burger: When you say our First Amendment, now, are you speaking--

Evan L. Schwab: --I'm sorry, my clients'.

Unidentified Justice: --as a representative of... well, are you speaking of your client as the press or as a litigant?

Evan L. Schwab: Both, Your Honor.

Unidentified Justice: Well--

Evan L. Schwab: The press does have a special function.

Unidentified Justice: --Are they they same?

Evan L. Schwab: I think they are different.

The press has a special function which this Court has recognized to convey newsworthy information.

It is in the business on a daily basis of conveying information.

It has been covering the Rhinehart story for eleven years.

It started in 1973 and has gone through 1981.

The effect of the orders below are to curtail the publication of the story in midstream.

The Times has been muzzled.

If it publishes anything more now about Rhinehart, it runs the risk that he will hail it into court on a contempt citation and make it prove independent sources.

This is the very nature of censorship.

Consequently, there have not been further articles because the long arm of the court may fall down on the newspaper.

So I think that both as a litigant and as a newspaper, it has an interest in advancing these considerations.

Evidence was submitted to the lower courts that the Respondents have made a practice of suing former members and the media whenever they are criticized.

They have used litigation very effectively, and there is information in the record that they brought over 20 suits to silence the kind of criticism they have been receiving, the kind of public scrutiny they have been receiving.

This is an organization which appeals to the public for funds.

Rhinehart himself goes out of his way to bill himself as one of the most significant gurus on this planet.

He has conducted nationwide exhibitions of his powers, his powers as a medium, his powers to communicate with the dead.

He claims that he has the power to bestow special powers on colored stones in a way, and then members are allowed to contribute certain sums of money, several thousands of dollars in many cases, to acquire these stones that carry special powers.

The Times has been covering these articles, trying to bring this information to the public, and the effect of the order below is to stop that.

I have got the articles, and I was going to read the titles, but my time is getting short, but I would summarize the articles by saying that they do draw into question the bona fides of the Aquarian Foundation, the question of whether or not Rhinehart has the powers he claims.

They question whether or not he is a charlatan, whether or not people are being victimized, whether or not this is a con game.

And as as result of that, he brought this suit.

Now, in the trial court he obtained this order restraining publication, and it says in advance, you may not publish what you learn.

And the test used by the trial court was simply this: parties may be chilled from coming to court if they know that what they say in discovery might be published.

And I would contrast that with your decision in Globe Newspapers in which the state argued that minor victims might he chilled from coming forward because they might be chilled, and that was deemed an insufficient reason.

The court speculated about this.

It did not make the kind of findings you required in the Press Enterprise decision on the exclusion of the press from voir dire.

There are virtually no findings in the trial court and in the State Supreme Court to justify this restraint.

The State Supreme Court approached it on a prior restraint analysis under your decision in Nebraska Press and then concluded that the interest of the judiciary in the integrity of its discovery process is sufficient to overcome the strong presumption against prior restraints enunciated in cases since Near, New York Times, Nebraska Press and so on.

And the Supreme Court said if any of the harms mentioned in the rule... and that is Rule 26, which is the same as the federal rule... they said if any of the harms mentioned in Rule 26 can be avoided, and the major concern... and since the major concern is the facilitation and protection of the discovery process and the parties' privacy rights, then the order can issue.

And in the ordinary case, this balancing does not require or condone publicity.

The court distinguished all contrary authority around the country--

Justice John Paul Stevens: Mr. Schwab, may I ask you this question?

Would you concede that any of the information that is gong to be obtained through discovery could be made subject to a protective order if it was properly drafted and made a lot of findings?

Evan L. Schwab: --Well, the test... we are asking for a test, and I can't imagine that some information might meet that test.

Justice John Paul Stevens: Well, as long as some is, isn't it a virtual certainty that we are going to have a federal question in every case in which there is such information?

Evan L. Schwab: Yes.

I think--

Justice John Paul Stevens: That we're going to have to we're the last court of resort for discovery all over the country if you--

Evan L. Schwab: --Whenever parties are seeking orders to gag litigants, because that runs right into their First Amendment right to access.

Justice John Paul Stevens: --So every good cause for a protective order raises a First Amendment issue.

Evan L. Schwab: We believe it does because the First Amendment protects freedom of expression and freedom of the press.

Justice John Paul Stevens: Let me ask you this, too.

How soon will this case be tried?

How close are you to a trial date?

Evan L. Schwab: We're not because everything has stopped since this protective order in June 1981.

It has been in appellate courts on this issue.

We have had no discovery.

Justice John Paul Stevens: Had there not been an appeal from the protective order, how soon do you suppose you would have been ready for trial?

Evan L. Schwab: Oh, probably six months or a year after the protective order had been issued.

Justice John Paul Stevens: And if that had happened, then you could have gone in and asked for all the information to be released.

There's no longer any need for secrecy.

Evan L. Schwab: It would have come out at trial.

That's another one of the vices of this protective order.

The test we advocate in our briefs asks the Court to consider whether or not the order is effective, and all this is is a temporary prior restraint, which wasn't acceptable in New York Times, in the Pentagon Papers case.

They want to silence it until trial.

They don't argue that it won't come out at trial.

The lower courts have held that it will be relevant and public at trial.

So we have got a temporary restraint to gag us until trial, to stop us from writing articles about them, to stop us from bringing to the attention of the public, from whom they solicit funds, what we have learned about the nature of their organizations.

The courts below were careful to say we can publish what we don't learn in discovery, but this really puts us in a pickle.

We... it's hard to draw that line.

How does a reporter decide he can safely publish this and not that when the lawyers have amassed a great deal of information through the discovery process?

There is a significant risk that what you have is a stifling effect, that the stories aren't written because of the chilling effect on that order.

Justice John Paul Stevens: What if you just adopted a policy of not having the lawyers turn anything over to their client?

Sometimes a discovery order just restricts the access to the information to the lawyers.

Then by definition, whatever the newspaper published would be gotten elsewhere.

I suppose you couldn't prepare for trial.

I suppose that's your problem.

Evan L. Schwab: I think in most cases... I think in most cases, Your Honor, that really gets in the way of one's ability to prepare for trial.

I have always resisted order like that.

Justice John Paul Stevens: This is that tough a case.

Evan L. Schwab: I need to talk to my client.

I've got to show him what's going on.

It's his lawsuit, not mine.

He's got the interest in the case.

Justice Sandra Day O'connor: Now, to be sure I understand, are we dealing with two different types of materials here, some which haven't yet been produced and some which have been produced before there was any protective order issued.

Evan L. Schwab: That's right, Your Honor.

Justice Sandra Day O'connor: Okay.

Chief Justice Warren E. Burger: Is there any risk in this process of making it very difficult or even impossible to get a jury that hasn't heard a lot about the evidence before the case comes to trial?

Evan L. Schwab: I think it is a minimal risk.

Certainly not... doesn't rise to the standard of the kinds of fears expressed in Nebraska Press and some of the other cases that this Court has decided.

Most civil cases aren't worth much publicity.

Chief Justice Warren E. Burger: Well, but the other cases you're referring to didn't always have that.

Nebraska and Stuart did, but you say that's no risk here.

Evan L. Schwab: I think... I don't think it's a significant risk.

It's something the trial court should take into account, but there are many other ways to deal with possible jury prejudice such as effective examination by the court.

There are a variety of things the court can do, and that's one of the things we think a court should do under the tests we ask for, which is consider are there other viable alternatives.

If I can briefly summarize the test we would like the Court to adopt in this, it would be to enunciate that First Amendment considerations cannot be abridged for conjectural reasons and without detailed findings.

That happened in this case.

Neither of those were entered, and there's really no way for an appellate court to come to grips with the basis for the lower court decisions.

Justice Lewis F. Powell: Mr. Schwab, it would help me if you could tell me whether the issue that is primarily involved in this case is limited to names and amounts of contributors to the defendant... to the plaintiff organization, names and amounts of money contributed.

Evan L. Schwab: That's the essence of their damage--

Justice Lewis F. Powell: That's the essence of what you are interested in.

Evan L. Schwab: --Financial affairs and information about the contributors.

Justice Lewis F. Powell: Well, if they are tax returns, you are not--

Evan L. Schwab: Well, there would be more.

We haven't got the balance sheets or other financial information, but yes.

Justice Lewis F. Powell: --Well, suppose instead of the party who claimed it had been libeled were one of the nationally known ministries, Protestant, Catholic, Mohammedan, whatever, with millions of subscribers, members and donors, your position would have to be the same, wouldn't it?

Evan L. Schwab: I think it would depend on whether they injected that issue into the lawsuit.

If they are making an issue--

Justice Lewis F. Powell: Well, let's suppose a newspaper made the sort of claims that have been made according to the pleadings here in this case, they were sued for libel--

Evan L. Schwab: --We would... if it was something we needed to pursue discovery in to defend, yes, then I am arguing that we have a right also to disseminate that information.

Justice Lewis F. Powell: --So the fact that this particular sect, Rhinehart's organization, is as you characterize it something of a charlatan really doesn't make any difference, does it, in terms of your theory?

Evan L. Schwab: No.

No, Your Honor.

Justice Lewis F. Powell: None whatever.

Evan L. Schwab: We would argue that at least a court should balance the First Amendment rights of expression that are at stake, and then it should closely examine and scrutinize the alleged harm.

Why is the party seeking a protective order?

What harm is it trying to avoid?

Detailed findings are required because you do have First Amendment considerations on the other side.

The court should ask whether the order is effective.

If it is going to come out at trial anyway, then the order will not be effective; it is merely a temporary or prior restraint.

If one says my privacy rights are being trod upon and yet he has chosen to bring suit on that information which will become public at trial, he necessarily has already decided to let that go public.

Litigants make that choice every day in deciding whether to bring suit.

Chief Justice Warren E. Burger: In what you postulate, he means to have it go public when, as, and if it gets into the courtroom but not before, necessarily, isn't that so?

Evan L. Schwab: Well, he means... puts it at issue.

Discovery will ensue.

Chief Justice Warren E. Burger: You are not suggesting that all of the material that is covered by pretrial discovery goes in evidence in a lawsuit?

Evan L. Schwab: No, of course it doesn't.

Unidentified Justice: A fraction of it goes in.

Evan L. Schwab: That's right, Your Honor.

I would like to save the balance of my time for rebuttal, if I may.

Justice John Paul Stevens: May I just ask one question?

I am sorry, I hate to use... is it perfectly clear we have a final judgment here?

This case hasn't been tried has it?

Evan L. Schwab: No, I think we do have final judgment, Your Honor, because the order, restraining order is final and effective.

It restrains us from publishing what we have already learned or may learn through discovery.

We sought interlocutory review, which was granted, and the State Supreme Court dealt with it as a final order and has affirmed the protective order.

We are not restrained, and we are asking this court to lift the restraint.

We are operating under a form of an injunction right now.

Chief Justice Warren E. Burger: You will not be charged with that time, counsel.

Mr. Edwards?

ORAL ARGUMENT OF MALCOLM L. EDWARDS, ESQ. ON BEHALF OF RESPONDENTS

Malcolm L. Edwards: Chief Justice Burger, members of the Court, I would like to address a few of the concerns that were discussed in opening argument, namely, what kind of information are we dealing with here to which this protective order will apply.

It does apply to some information that is a matter of... that was filed in a court file, and let me explain how that happened.

A deposition of Reverend Rhinehart was taken by the Seattle Times.

In that deposition questions were asked about financial matters relating to the foundation and to Reverend Rhinehart.

There was in that deposition a promise that this information, financial information, would not be disclosed, it would not be used for any purpose other than for the lawsuit.

As a result of that--

Justice William H. Rehnquist: A promise made by whom?

Malcolm L. Edwards: --By counsel for the Seattle Times.

As a result of that promise, the income tax returns of Reverend Rhinehart were turned over to the Seattle Times.

Reverend Rhinehart at that time was represented by a different counsel who thought he had to also file them, and he did file them.

Once it was discovered that the income tax returns were filed by this counsel, we moved to have those income tax returns removed from the public record so that the policy and the theory behind the production of those income tax returns, namely, that they are to be used only for the purposes of this lawsuit, would be implemented.

Unidentified Justice: The preceding counsel thought he was obligated as a result of discovery to file--

Malcolm L. Edwards: Yes.

Unidentified Justice: --Mr. Rhinehart's income tax returns with the clerk of the court?

Malcolm L. Edwards: With the clerk of the court, which obviously he wasn't.

Okay.

Thereafter, the Seattle Times sent out a substantial number of interrogatories and requests for production.

We then resisted the disclosure of some of the information that they requested, and we asked if that information was compelled to be disclosed, that a protective order be entered on it.

The trial court entered a protective order after directing us to provide this information in answer to the interrogatories.

Now, what kind of information does this protective order apply to?

It applies to a very limited class of information.

It applies only to the names of the members and donors to the Aquarian Foundation and its spiritual leaders, and financial information relating to the foundation and its spiritual leaders.

The order... and I think this is critical... does not gag the Seattle Times in any way.

The Seattle Times is free to publish anything it cares to publish as long as it has a source that is independent of court-compelled discovery.

So all we are dealing with is whether the court can, when it orders a party to reveal or disclose information, make that a limited disclosure of information, and that's exactly what the trial court did.

The Aquarian Foundation, Reverend Rhinehart, other plaintiffs, you are required to provide this information, but your disclosure will be limited, limited to the purpose of this lawsuit.

And that's what we're dealing with here.

This order also applies only to parties.

This order does not purport to gag any member of the press or the public about anything.

It simply says that as a party to this process, you used your rank as a party to get access to this information; you must limit your use to the purpose for... that you used to obtain it.

Now, that's all we're talking about.

There are no cases of this Court which relate to that kind of a problem.

The Landmark case in which a newspaper acquired information about a judicial discipline proceeding involved a nonparty to that judicial discipline proceeding, and the Court held that that party could not be restrained from publishing.

The Court went to great lengths to note that it was not deciding that a party to the proceeding could not be compelled to maintain the secrecy of the proceeding.

What we have here in this particular case is an order which applies to normally private information.

Indeed, the information to which this order applies is ordinarily constitutionally protected.

This Court has held in NAACP v. Alabama, in Brown v. Socialist Workers Party, in Detroit Edison v. NLRB, and in Shelton v. Tucker that certain private kinds of information about members and donors of minority faiths or minority associations is entitled to constitutional protection.

The party is not required to disclose it because to do so would subject the party to reprisal or oppression.

And that is what we are dealing with here.

We have a minority faith who wishes to protect the names of its donors and of its members.

They have rights of free exercise of religion, rights of free association, rights of privacy that are guaranteed by the Constitution just as is freedom of the press.

And these rights need to be protected by the courts to the same extent as do the press rights, and the trial court held that the way to do that was to enter a protective order.

Justice William H. Rehnquist: Of course, your clients were plaintiffs in this lawsuit, weren't they, Mr. Edwards, and to a certain extent they do give up rights of... to a very large extent they give up rights of privacy when you bring a lawsuit for libel.

Malcolm L. Edwards: They give up rights of privacy when they are plaintiffs only for the purposes of that lawsuit, and the fact that they are plaintiffs I think is something that you can make too much of, Your Honor.

A party has a right of access to the courts.

They aren't worse than a defendant because they go to court.

They are not worse than a plaintiff because they are a defendant.

Justice William H. Rehnquist: Well, now, just a minute.

You say a party has a right of access to the courts.

Malcolm L. Edwards: Mm-hmm.

Justice William H. Rehnquist: Now, are you saying that is some kind of an independent, federal, constitutional right to go into the Superior Court of King County and plead a case?

Malcolm L. Edwards: I am saying that perhaps the most fundamental right that anyone has in our society is to go into court and redress a grievance.

Justice William H. Rehnquist: Well, okay, now.

Where does one... from what source does one get a right to go into the Superior Court of King County and sue a newspaper for libel or sue anybody for anything else?

Malcolm L. Edwards: Okay.

I think it is a part of the due process rights that every citizen of this nation has, and it is not just my idea.

In Marbury v. Madison in 1803 the Chief Justice noted that that was the most fundamental civil liberty that anybody had, was the right to seek redress for grievances in the courts.

Justice William H. Rehnquist: Well, did he say that was a... did the Chief Justice say that was a federal constitutional right?

Malcolm L. Edwards: The Chief Justice was not talking in terms of a libel case in the King County Superior Court.

The Chief Justice was talking in terms of--

Justice William H. Rehnquist: He was talking natural law.

Malcolm L. Edwards: --Yes.

He could have even been talking natural law.

He had very few precedents on this case.

Chief Justice Warren E. Burger: Well, isn't one answer to the question posed to you that the legislature of the State of Washington at least gave that right to all the people in Washington?

Malcolm L. Edwards: That is right.

Chief Justice Warren E. Burger: And that's... you don't need to go beyond that to find it in the federal constitution, do you?

Malcolm L. Edwards: I don't think so, but I--

Unidentified Justice: You wouldn't, you wouldn't, you wouldn't say that... you wouldn't say that as a plaintiff furnishing discovery under this protective order that if information was actually relevant and was introduced at trial that the protective order would prevent publication?

Malcolm L. Edwards: --No, Your Honor, and the opinion of our State Supreme Court--

Unidentified Justice: Even though, even though, even though technically you could say the information would be... if it were published, would be used for something besides litigation.

Malcolm L. Edwards: --That is correct.

Unidentified Justice: But you say once it is actually legitimately filed in court or used in the litigation, it is open to the public then.

Malcolm L. Edwards: I think the public interest in--

Unidentified Justice: Unless there is something special.

I suppose in trade secret cases and whatnot there's a lot of things that remain sealed forever.

Malcolm L. Edwards: --That's possible.

There are juvenile court--

Unidentified Justice: But you don't claim any of this information would be sealed forever if it were used in defense, legitimately used in defense or in prosecution of that.

Malcolm L. Edwards: --That is correct.

We have another petition for certiorari pending in which we assert that the trial court was in error in compelling us to disclose the lists of names and donors.

That petition was filed at approximately the same time as the one that is now being argued, and it hasn't been acted on, and it's our position that the order compelling the Respondents here to provide this information was erroneous because it infringed upon their rights of free exercise.

Unidentified Justice: Even subject to the... even subject to the secrecy order?

Malcolm L. Edwards: Yes.

That is our position.

Unidentified Justice: Well, Mr. Edwards, if your position in your petition for certiorari is correct that all these constitutional privacy interests are invaded by a discovery order, and Mr. Schwab's position that his clients' and all sorts of other clients' First Amendment interests are invaded if there is a protective order, then isn't Justice Stevens' earlier question to Mr. Schwab brought about in double, so to speak, that every single discovery order that a court makes is now a matter of federal constitutional import?

Malcolm L. Edwards: I think there is not any question but that the position being advanced here by the petitioner is that the rule this Court should announce should apply to all litigation and all parties without regard to whether they are newspapers or pamphleteers or anyone, and that if the rule advanced by Petitioner is supported, that you will constitutionalize all protective order questions.

Unidentified Justice: Well, let me... suppose the newspaper had published a story that the main supporters to this sect or this group are the following people, and you sued them and said that's a lie, that's libelous.

And the newspaper then said, well, gee, we at least, in order to prove truth or falsity, we need your membership, your contribution list.

Malcolm L. Edwards: Mm-hmm.

Unidentified Justice: Now, would you say that they weren't entitled to get the contribution list?

Malcolm L. Edwards: That isn't the context in which this case arises, but--

Unidentified Justice: I know, but.

Malcolm L. Edwards: --Under those circumstances, they would have a more compelling reason to get the contribution lists than they do here.

Unidentified Justice: You might still be... you might still win on a protective order, though, and say that we have to furnish it if we want to be a plaintiff in this case, but it should be furnished under a protective order.

Malcolm L. Edwards: That is the position we took at trial.

If you are going to make us give this information, then at least let's limit its use for the reason you are ordering us to produce it, namely, the litigation itself.

Chief Justice Warren E. Burger: Well, then, once the deposition or the interrogatory is offered in evidence, it would lose any right of privacy, would it not?

Malcolm L. Edwards: That's what the State Supreme Court opinion says, and we are not arguing that.

Chief Justice Warren E. Burger: Unless, as suggested, it was a patent case or a national defense case, something of that type.

Unidentified Justice: You just agreed that your position is that if it were used at the trial legitimately, then it is open to the public.

Malcolm L. Edwards: That is correct.

That's not the issue here.

The State Supreme Court in adopting the rule that one, in order to have a protective order entered, must show good cause under Civil Rule 26, I am sure had some of the same concerns that have been expressed here about constitutionalizing the process of discovery.

It is already sufficiently complex and protracted that to make every protective order a matter of constitutional rights certainly is not going to help.

The State Supreme Court held essentially that if you subject a party as the price of going to court with the cost of publication of private information obtained through court-compelled discovery, that you are going to chill a party's access to the courts, and that is a real concern when you are dealing with a party that is a minority religion, as is the Aquarian Foundation, or a party that may be a minority political party, or a group such as the NAACP that may be operating in an area where its objectives are ones that would subject people to scorn.

Justice William H. Rehnquist: Well, you don't have to find a federal right of access to courts to sustain the position of the Supreme Court of Washington in this case because they found as a matter of state policy that the access to courts was all-important.

Malcolm L. Edwards: That the access to the court was what?

Justice William H. Rehnquist: Was all-important, or very important.

Malcolm L. Edwards: Yes, that the access to the court was a fundamental concern of theirs, and essentially what they said is the only alternative the Seattle Times has really presented that is realistic is denial of discovery altogether, and obviously if you deny discovery, they don't have anything to publish, so they don't have any reason to have a protective order, and we would all be happy and could go home, because that's what we'd like, too, is that they not be able to give this information.

But the court said that is not a realistic alternative because of the importance of the discovery process in the just resolution of disputes.

Given that, the State Supreme Court said that whatever limited interest there may be in the right to publish this material obtained through court-compelled disclosure is far outweighed by the need of the state to have a system to resolve disputes, and it is very easy when we read the briefs, particularly of the petitioner here, to forget the central fact, and that is that we are in that court right now and we have been here in this court and other courts trying to vindicate rights.

And without an effective, functioning court system, none of these rights are going to be very meaningful.

And the Washington Supreme Court held, as I think this Court should, that that interest is paramount to any right of anyone to publish court-compelled discovery.

Chief Justice Warren E. Burger: Do you have anything further, Mr. Schwab?

You have three minutes remaining.

ORAL ARGUMENT OF EVAN L. SCHWAB, ESQ. ON BEHALF OF PETITIONERS -- REBUTTAL

Evan L. Schwab: Thank you, sir.

I think that the question of whether or not we are going to constitutionalize pretrial discovery if this Court adopts the balancing test we are advocating, and if it requires lower courts to enter findings and give justifications for these restraints on speech, is a question that was really decided by the framers of our Constitution and the drafters of the First Amendment.

The First Amendment has been expanded by this Court already to in essence constitutionalize or make federal questions out of courtroom closure cases, out of the ability of the press to publish information that the judicial system is trying to keep secret, such as the judicial probe in the Landmark case, the names of minor victims in the Globe case.

The Court has constitutionalized the question of whether or not the fair trial interests of the press... excuse me, the fair trial interests of a defendant, in Globe... in Nebraska Press, justify protective orders against the press like the one that was entered there.

In Smith v. Daily Mail this Court held that a newspaper could not be punished for violating a state statute and publishing the names of minor offenders.

There are a whole range of cases in which these issues have come up.

And yes, we do argue that whenever government, by whatever form, attempts to suppress speech, particularly in advance of that speech, then the First Amendment is called into question, federal questions are present, and we believe that in most cases orders that suppress speech in advance cannot pass muster under the First Amendment.

Mr. Chief Justice Hughes started us down this line in Near v. Minnesota.

The exceptions there to prior restraints were basically obscenity, fighting words and national security cases.

After the Pentagon Papers case it appears that there is not a lot left of the national security exception.

When one reads this Court's opinion dealing with the public administration of justice, the right of the public to know how its courts are administered, how justice is administered and the protections it has afforded those who disseminate information about the administration of justice, then we submit that one can only conclude that there are significant First Amendment interests at stake here, and they need to be balanced.

We are not arguing for an absolute test.

We are arguing for a balancing test that gives First Amendment considerations a place on the scale.

The lower court didn't do that, and basically said protective orders are per se constitutional so long as they avoid embarrassment and the other things listed in Rule 26.

Unidentified Justice: Do you think the public is entitled to be present at the hearings, at pretrial discovery depositions?

Evan L. Schwab: I'm a trial litigator most of the time, and I would say no.

I don't want the public and the press in most of these depositions.

Now, that is taken care of in the antitrust field because there is a statute that government prosecutions involve right of open depositions.

But short of that, I think not.

Unidentified Justice: Why does... if you concede, as you seem to, that there is no public right of access to the actual taking of the deposition, what's the difference between that and access to the record of that deposition hearing?

Evan L. Schwab: I think the difference, sir, is that when a litigant comes into possession of it rightfully, he has a right to disseminate it, and he has come into it rightfully.

He was there.

The party was in the room and heard the deposition.

Chief Justice Warren E. Burger: Thank you, gentlemen.

The case is submitted.

We will hear arguments next in Capital Cities Cable v. Crisp.

Featured:

United States v. Arthur Young & Co. - Oral Argument

Thu, 30 Aug 2012 22:14:56 +0000

Case:

United States v. Arthur Young & Co.

Media File:

82-687_19840116-argument

Related Transcript:

82-687_19840116-argument

Transcript:

ORAL ARGUMENT OF MARK I. LEVY, ESQ., ON BEHALF OF PETITIONER

Chief Justice Warren E. Burger: I think you may proceed whenever you're ready, Mr. Levy.

Mark I. Levy: Thank you, Mr. Chief Justice and may it please the Court:

This case is here on writ of certiorari to the United States Court of Appeals for the Second Circuit.

The question presented is whether an accountant privilege should be created to shield from the IRS the tax accrual work papers that were prepared by an independent public accountant in connection with his audit of a publicly held corporation pursuant to the federal securities laws.

The Court of Appeals established such a privilege and on that basis denied enforcement of the IRS summons for the tax accrual work papers.

This marks the first and only occasion that any federal accountant privilege has ever been adopted.

The background of this case may be briefly stated.

The federal securities laws require that publicly held corporations, such as Amerada Hess, file financial statements that have been audited and certified by an independent certified public accountant.

Under generally accepted accounting principles, the corporation must accrue as a charge to earnings a reserve for contingent tax liabilities.

This reflects the possibility that the corporation will owe more in taxes than it paid.

In accordance with generally accepted auditing standards, the independent public auditors must determine the adequacy of this reserve in order to certify that the financial statement fairly presents the financial condition of the corporation and was prepared in conformity with generally accepted accounting principles.

Unidentified Justice: Now, federal law doesn't require that; that's a matter of accounting standards, is that right?

Mark I. Levy: Federal law requires that the financial statement be audited in accordance with generally accepted auditing standards.

Unidentified Justice: Right.

But that just is determined by the practice of the accountants generally, not by federal law.

Mark I. Levy: That's correct, and then it is incorporated, as it were, into the SEC regulations.

Unidentified Justice: Mr. Levy, would your position be any different if this were a small closely held corporation, not listed?

Mark I. Levy: Well, I think that would be a different case.

Our position would be the same, that the IRS is entitled to those work papers.

That case would not raise the dimension that this one does about the conflict that the Court of Appeals perceived between the tax laws and the securities laws.

In that situation there would only be the unfairness rationale of the Court of Appeals to sustain any claim to privilege.

Unidentified Justice: Well, certainly some of your arguments here would be inapplicable in that situation, I would think.

Mark I. Levy: Well, I think it's really more that the accounting firm's arguments would be inapplicable in that situation.

They are the ones who have to come forward and justify the privilege, and one of the grounds that the Court of Appeals relied on in sustaining the privilege here was that to allow the IRS to have access to these papers would in some way undermine the securities laws.

That simply would not be a problem in the hypothetical.

Unidentified Justice: Wouldn't some of your arguments be inapplicable, to wit, the duty owed to the public?

Mark I. Levy: Well, it would be inapplicable in the sense that we wouldn't need to respond to that argument.

In that situation, Justice Blackmun, essentially the argument would be that there is some sort of an accountant privilege that shields in-house work by a corporation.

That's an issue that could be litigated, but we think it's very unlikely that any court would recognize a privilege in those circumstances.

There are some cases, I should add, that approach the hypothetical that you put.

The El Paso case that's pending here on certiorari here involved in-house auditors, but their work was done in connection with a public securities review.

The case the Eleventh Circuit recently decided, In Re Newton, did involve a closely held non-public corporation, but the auditors in that case were outside auditors rather than in-house auditors, so that they approach but are not exactly the same as your hypothetical, Justice Blackmun.

In this case, the IRS was conducting a tax investigation of Respondent Amerada Hess.

Respondent Arthur Young is the independent public auditor that audited and certified Amerada Hess' financial statement for the years in question.

The IRS issued a summons to Arthur Young for, among other things, the tax accrual work papers.

Arthur Young, acting both at its own instance and at the directions of Amerada Hess, declined to comply with the summons.

The Government then brought this enforcement action in district court.

The district court held that the tax accrual work papers are relevant and not privileged and it ordered that they be produced.

A divided Court of Appeals reversed.

Although it agreed with the district court that the tax accrual work papers are relevant, it held that they are protected by an accountant privilege and that the Government had not made an adequate showing to overcome that privilege.

Unidentified Justice: Mr. Levy, a special agent had shown up before the summons was issued, hadn't he?

Mark I. Levy: That's correct.

It was a joint civil-criminal investigation at that point.

Unidentified Justice: Would your case be stronger if he hadn't appeared?

Mark I. Levy: I don't believe our case would be materially different.

We think the IRS has summons authority to get these work papers in a civil case, in a criminal case, or in a joint investigation.

Now, our case would be stronger, and the Court of Appeals recognized that if the IRS were investigating fraud or some other state of mind issue, there would be no privilege for the work papers, and in a criminal investigation that is much more likely, of course, to arise.

But it could also come up in a civil investigation as well.

We think the Court of Appeals made a fundamental mistake in saying that because the IRS had not alleged fraud at the time it issued the summons, then the privilege applied.

That put the cart before the horse, since the whole purpose of the investigation was to determine whether there was any basis for liability, including penalties for fraud or any other violation.

So that would be the difference if there were a criminal case here, and the Court of Appeals simply ignored the fact that this was a joint civil-criminal investigation.

Unidentified Justice: Well, certainly the appearance of a special agent has criminal case overtones.

Mark I. Levy: Yes, a special agent does investigate for criminal purposes.

But the Court of Appeals put great weight on the fact that in that investigation the IRS had not made any allegations of fraud in issuing the summons.

We think that was a mistake.

The IRS should have the authority to get these work papers for, among other reasons, to determine whether there's any basis for an allegation of fraud, and the Government can't make that allegation before it conducts its investigation.

The Court of Appeals' creation of an accountant privilege in this case rested on two theories: first, that IRS access to tax accrual work papers would be unfair and prejudicial to the taxpayer; and second, that IRS access would chill candor in communications between the corporation and the independent public auditor, and that this would work to the disadvantage of the investing public and be contrary to the policies of the securities laws.

And me consider each of these theories in turn.

But even taken together, we think the Court of Appeals took too expansive a view of its role to weigh competing policy considerations against the Government's entitlement to obtain information pursuant to statute, and that neither of its theories justifies the creation of a novel accountant privilege or overcomes the strong presumption in the law against the establishment of a new privilege.

First, the claim of unfairness.

This claim seems to derive from one of three sources, that IRS access here is unfair: one, because of something about the process or the balance of advantage between the taxpayer and the IRS in a tax investigation; or two, because something in the relationship between the corporation and its independent public auditor makes it unfair; or three, that there's something in the contents of the work papers that makes it unfair for the IRS to summon these.

I'll address each of these in turn.

The claim that the process of tax investigation makes it unfair for the IRS to have access must be assessed in the context of our self-reporting tax system.

IRS enforcement of the tax laws serves two basic purposes: First, it furthers the fundamental government interest in collecting revenues; and second, it achieves equity among taxpayers by ensuring that a taxpayer who fully complies voluntarily is not put at a disadvantage in relation to a less scrupulous taxpayer.

Now, under our tax system the taxpayer has an affirmative obligation to pay his fair share of taxes and to compile and to provide to the Government a great deal of information to demonstrate his compliance with the law.

That's the nature of the tax system.

While it is of course often true that the IRS and the taxpayer may have opposing views, the nature of the tax system is not arm's length or adversarial in the same sense that a system of litigation is.

Unidentified Justice: Mr. Levy, hasn't this Court gone into this about a thousand times by now, the great theory of the IRS?

Mark I. Levy: I believe so, and I believe everything that's in my presentation--

Unidentified Justice: Well, do we need it for this case?

Mark I. Levy: --I think it helps to support the Government's position here to realize what is at stake in withholding access to these papers from the IRS.

Unidentified Justice: It's up to you.

It's your time.

Mark I. Levy: Well, let me move on from that, then.

Whatever may be true in the litigation area, there is no room in a tax investigation system for a sporting theory of justice that requires that the relative advantages between the taxpayer and the IRS be equalized.

A tax investigation is not a competitive event like a horse race or a golf match, in which each of the participants has to bear an equalizing handicap.

The fundamental point here, to get to it, is that... is whether the tax accrual work papers will be available to help to ensure that all facts and all issues are brought out into the open so that the IRS can form a judgment about the taxpayer's tax liabilities and any issues can be resolved through the processes provided by law.

There's no room for the taxpayer to complain, as Respondents do here, that the IRS' enforcement is too effective or that the relevant information will be too helpful to the IRS in determining the taxpayer's liability.

Unidentified Justice: Well, it's a question basically of Congressional intent, I suppose, isn't it?

You know, how effective did Congress intend these procedures to be, and did Congress perhaps imply that there might be some room for this kind of privilege?

Mark I. Levy: No one, neither the Court of Appeals nor the Respondents, have identified anything in the Congressional intent that would support a privilege on this branch of the case.

It is rather a point of fundamental fairness they claim.

Unidentified Justice: Well, what reason, then, do you think that Judge Feinberg thought supported his opinion if it weren't some implicit Congressional intent?

Mark I. Levy: We think that it was a misconception about the role of the judiciary, that he thought that it was the proper role of the federal judiciary to weigh competing social policies against the statutory access authorized by Congress and conferred on the Service.

We think that was a fundamental misapproach to the case.

But at least as to this side of it, on the unfairness argument, he identified nothing in the statute or any legislative history that would support a privilege, and we think this Court's opinions point in exactly the opposite direction, that Congress wanted the IRS to have the broadest possible access and to be able to have every helpful and effective means of enforcing the tax laws.

Now, the claim of unfairness may also rest in part not on this balance of advantage, but on the idea that IRS access will intrude into a sensitive relation between the accountant and the corporation that the law should protect.

We think this is simply not so.

In Couch this Court recognized that there is no federal accountant-client privilege, and thus--

Unidentified Justice: Mr. Levy, may I ask you a question here.

Supposing... well, I guess the federal securities laws require an opinion of a lawyer on contingent liabilities in litigation, or it very well could.

Supposing in this particular situation the statute, instead of asking for an accountant's opinion, asked for a legal opinion on the adequacy of the reserve for contingent tax liabilities, and all the other... everything else about the case was exactly the same.

What would your view be about it?

Mark I. Levy: --Well, I think that would certainly be a harder case and raise issues that haven't been addressed here about the role of the attorney-client privilege and waiver of the attorney-client privilege.

To give you my--

Unidentified Justice: Doesn't... of course, it's an accountant, not a lawyer, and it's kind of a semi-legal judgment that he has to make in interpreting tax laws.

And as we all know, accountants probably practice more tax law than lawyers do.

So I just wonder if it really isn't very close to the case of asking the legal opinion.

Mark I. Levy: --Well, we think it is not close to the attorney's role, really, for two fundamental reasons.

The attorney has an undivided duty of loyalty to his client.

That's the basic nature of the relationship.

The accountant, on the other hand, does not.

Unidentified Justice: Well, but in the hypothetical statute I've posited he would have a duty of giving an opinion on which the public would rely.

Mark I. Levy: And that's why it would raise hard questions about whether the privilege applied in the first instance, whether he was giving confidential legal advice on behalf of the client or, even if he were, whether it would be waived in the circumstances of that case.

I think our position might be that we were entitled to the opinion there, but as I say that raises issues that haven't been addressed in this case.

This case only involves an accountant whose duty, whose paramount duty, is to the public, including the Government and investors and creditors as well.

The nature of the advice is also quite different.

The lawyer in general gives confidential advice and formulates strategy for the client.

Here the accountant, his function is not to give advice.

His role is to be independent and he serves as an instrument of public oversight and investigation.

Unidentified Justice: Mr. Levy, regarding that part of your answer to Justice Stevens, you're stating now what the accountant's role is, that he doesn't give advice like lawyers do.

I mean, is this a matter of public record or do we take judicial knowledge of some of this differentiation that you see between the role of accountants and lawyers?

Or is it disputed?

Mark I. Levy: I don't believe it is disputed.

It's supported by the affidavits below, as well as by public--

Unidentified Justice: Well, are you suggesting that a lot of accountants, CPA's, do not give legal advice, about tax liability?

Mark I. Levy: --I'm saying that when they're acting as an independent public auditor in connection with the securities laws, their obligation is to the public and it is not one of giving confidential advice.

Unidentified Justice: And you think that function is wound up in both of these kinds of papers that are involved in this case?

Mark I. Levy: In this case as it comes to the Court there is only one kind of paper that's involved, the tax accrual work papers, and we think it is fundamentally involved in resolving the issue whether the IRS should have access.

Unidentified Justice: Even if for other purposes they give advice about what tax liability is?

Mark I. Levy: That would be a different case, although we think Couch recognizes that there is no general accountant-client privilege.

Unidentified Justice: Mr. Levy, what would happen if the accountant was in a legal office?

Mark I. Levy: I'm sorry, Mr. Justice Marshall?

Unidentified Justice: What would happen if the accountant was in a legal law office?

Mark I. Levy: If he's performing a role as an independent public auditor, I don't think that would make any--

Unidentified Justice: It wouldn't?

Mark I. Levy: --difference.

I don't believe so.

His obligation is to the public.

Unidentified Justice: So that the lawyer and the accountant advising the client, the lawyer is privileged but the accountant is not?

Mark I. Levy: Well, if it's in connection with a certification of a public financial statement I think there would be questions about whether the lawyer's advice would be privileged.

Those questions aren't involved here, but they touch on the points that Mr. Justice Stevens raised.

Unidentified Justice: Yes, that's what got me on this tangent.

Mark I. Levy: But there would be difficult questions about whether the privilege applies and, even if it applies, whether it would be waived by disclosing it to a quasi-public person.

Unidentified Justice: Well, what would... I know this is way out in left field.

What would happen if the lawyer gave the opinion that the accountant should have given?

Would that be privileged?

Mark I. Levy: As I say, that would raise different questions, and some of those questions are presented in the El Paso case, in which the Fifth Circuit held that there, at a minimum, was a waiver of any attorney privilege by disclosing it to the outside auditor.

But the Court of Appeals nor the Respondents have raised any of those kinds of issues in this case.

The accountant privilege here stands on a different footing.

Unidentified Justice: They're not in this case?

Mark I. Levy: No, they haven't been raised.

This case is really no different than if the securities laws provided that the SEC would select the outside auditor, rather than letting a corporation do it, or indeed even if the SEC would do the outside audit itself.

In those cases, clearly there could be no claim that the IRS was seeking to intrude into some sensitive confidential relationship that the law should protect.

Unidentified Justice: But if the statute did provide it, I dare say that the corporations involved might not be quite as forthcoming with the SEC as they were with their own, or who they thought were their own accountants.

Mark I. Levy: Well, their obligation is to be every bit as forthcoming here, and the whole point of this illustration is that the independent public auditor stands in exactly the same position as the SEC would.

The obligation for the corporation to make full, accurate, and complete disclosure so that the accountant can certify the financial statement would be exactly the same in the two instances.

Unidentified Justice: Mr. Levy, of course lawyers, just as accountants, file opinions with registration statements with the SEC.

How do you draw the distinction between a lawyer's certification, for example, that an issue of securities has been validly authorized and is lawful and outstanding, and an accountant's certificate that a balance sheet and a profit and loss statement are correct?

Mark I. Levy: I regret, Mr. Justice Powell, but I'm not fully familiar with the lawyer's obligations in those circumstances.

But I would say that if they are comparable to the role of the independent public auditor in this case, those would raise very serious questions about whether a privilege would apply or whether it would be waived.

But I am simply not in a position to say anything more definitive because I do not know their full obligations.

Unidentified Justice: Well, there may be more of an opinion expressed by counsel than perhaps by an accountant, although where you're dealing with a tax accrual estimate that finally comes down to an opinion, I suppose.

Mark I. Levy: There is room for judgment, no question, in these papers, although judgment is not the only or even the predominant content of the papers.

But there is no, at the same time, privilege for professional opinions.

Work product protection is not a badge of professional status that attaches simply because a professional is involved and renders advice.

There need to be substantially more important, compelling reasons of public policy and law to justify it, as in the attorney work product area of Hickman against Taylor.

In that circumstance the attorney did give confidential advice and his very role was to provide the client with strategy in litigation.

The Court recognized that the whole basis for the adversarial system of law was that the lawyer needed a certain private domain, a certain thinking and working space, in order to perform his functions.

In addition, the attorney work product requires that the materials be prepared in anticipation of litigation, that is, that they were prepared for the very purpose of a party defending its position and opposing the claim of the other side.

It is not enough that the attorney is involved for some other reason or that the material might have some effect on the lawsuit.

They have to have been prepared for the very purpose of resolving the adversarial dispute.

In this case once again, the role of the independent public auditor is much different.

Again, we have the self-reporting tax system that imposes a duty of disclosure on the taxpayer.

The independent public auditor does not give confidential advice and strategy.

He does not need the same private domain that the lawyer does.

Indeed, the tax accrual work papers are prepared with the very idea in mind that they will be subject to disclosure if a challenge later arises under the securities laws.

Unidentified Justice: Mr. Levy, supposing that we reverse the Second Circuit in this case and then a new breed of service comes into effect, the lawyer-accountant, which does all the same work that CPA's used to do except that the person to whom the corporation talks is now a lawyer, and they go about... a particular corporation consults one of these entities and does work only with the lawyer, but the firm is functioning in the capacity just as the CPA's are here, preparing reports that are required by the SEC.

Now then, would that challenge be resolved any differently than this one?

Mark I. Levy: It would raise different questions, but I think in the end fundamentally not.

Unidentified Justice: It would have to be the same.

Mark I. Levy: I think that's right, because the obligations under the securities laws are not private confidential advice-giving ones, as lawyers--

Unidentified Justice: Well, after all, the accountants do have lawyers in their organizations, don't they?

Mark I. Levy: --I expect they do, and I also imagine that many of these CPA's are attorneys as well.

I don't think that that would make--

Unidentified Justice: Some law firms have certified public accountants in their establishment, do they not?

Mark I. Levy: --I expect that that is true, Mr. Chief Justice.

Unidentified Justice: In response to Justice Rehnquist's question, would it not turn on what the particular actions were?

If they were the actions of a lawyer traditionally it might have one answer; if it was a function of an accountant it might have a different answer?

Mark I. Levy: That may be true as to some particular type of information, and that is the discussion I had with Justice Stevens and Justice Marshall, I think.

But I understood Justice Rehnquist's hypothetical to be that the work was done exactly the same, but it happened that the person who did it was both an accountant and a lawyer.

In those circumstances, the fact that a lawyer, someone with legal as well as accounting training, is involved does not change the existence of the privilege in any way.

Unidentified Justice: Mr. Levy, how big was the reserve in this case?

Mark I. Levy: I don't know the answer to that.

Unidentified Justice: I notice a reference in the papers to $7,000 of these foreign payments.

Is that all we're talking about?

Mark I. Levy: No, that is not all we're talking about.

The summons in this case was directed for both the civil and the criminal investigation, and the affidavits in the court below that are reprinted in the joint appendix make it clear that both sides of the investigation are still open and that the summons here is relevant to both parts.

Unidentified Justice: Do you know if in a case of this kind the Government is more interested in finding out what the elements of the contingent liability that are included in the reserve are or the ones that are left out?

Which are they primarily looking for?

Mark I. Levy: I am not in a position to be able to answer that.

I think that the Government's overriding interest is in having full disclosure so that all facts and issues can come out and that a reasoned decision can be made about any tax liability and any issues that arise can be worked out through the normal processes of the law.

Unidentified Justice: I've seen some balance sheets where the contingency actually identifies the area of potential controversy, that there's some fight over inventory or something that's going to recur year after year.

But you're mainly thinking of things that would be undisclosed in the balance sheet itself?

Mark I. Levy: Well, if the balance sheet itself disclosed certain things, then that would be of substantial assistance to the IRS.

But as I understand it, both the requirements of the profession and the implementation of those requirements are somewhat vague.

There's room for discretion and the practices among the accountant firms vary quite widely about the degree of detail that's disclosed.

I did, for example, look at the Amerada Hess 10k's in this case and did not see any separate item even for tax accrual liabilities, let alone broken down by the kind of item.

Let me just touch briefly on the second half of the Court of Appeals' reasoning, that there is some perceived conflict between the securities laws and the tax laws and that IRS access here would chill the candor of communications between the corporation and the auditor.

This is clearly in the nature of an accountant-client communication privilege and we think therefore inconsistent with Couch.

We also think it's inconsistent with this Court's decision in St. Regis Paper, that holds that a statute is not to be read to create a privilege unless it clearly so provides.

There's nothing in the securities laws here that establishes a privilege or cuts back on the IRS summons the Service would otherwise have.

The Court of Appeals' reasoning on this point was quite speculative.

They may be right that in some circumstances there will be some effect on some corporations in their communications with their auditors.

But beyond that no generalization is possible, and there was no adequate basis for the Court of Appeals' broader generality.

Indeed, there's substantial room for doubting whether the absence of a privilege would have any effect on compliance with the securities laws, because both the corporation and the auditor are under independent legal duties to perform their functions in accordance with the securities laws.

In particular, the auditor will not give an unqualified opinion if he is not satisfied that the financial statement fairly presents the financial condition and has not had access to adequate information on which to form a judgment.

That provides him with a strong means to obtain the cooperation of the corporation in getting access to the necessary materials.

Unidentified Justice: Mr. Levy, since '81 you have guidelines.

Mark I. Levy: That's correct.

Unidentified Justice: Do you have any idea how frequently requests are made now under those guidelines?

Mark I. Levy: It is not frequently.

I cannot give you a quantitative estimate, but the IRS by no means seeks in the routine or the ordinary course to get these work papers.

But we think the fact that the IRS exercises discretion with restraint and forebearance does not in any way undermine its legal right to obtain these cases where it sees fit.

I'd like to reserve the balance of my time.

Chief Justice Warren E. Burger: Mr. Liggio.

ORAL ARGUMENT OF CARL D. LIGGIO, ESQ., ON BEHALF OF RESPONDENT ARTHUR YOUNG & COMPANY

Carl D. Liggio: Mr. Chief Justice and may it please the Court:

What the Government seeks here is this Court's sanctioning an invasion into the thought processes of the independent auditors by obtaining the tax accrual work papers.

To understand the issue that is presented to this Court, it is essential to understand what is in the tax accrual work papers and, more importantly, what is not in the tax accrual work papers.

The tax accrual papers are prepared by the auditors and are primarily the auditors' opinions, judgments, assessments and thought processes in determining whether the provision for taxes shown on the financial statements of a corporate taxpayer are reasonable.

It is not to determine whether the amount provided for on the financial statements are exact or the exact amount of taxes that will eventually be paid by the corporate taxpayer.

They do contain some facts, but these are purely incidental to the judgmental processes of the auditors in evaluating the contingency reserve for taxes on the financial statements.

And, contrary to the Government's position which is sprinkled throughout its papers and in the argument today, the facts comprise a very minimal or minor element.

As in the attorney work product doctrine, an analogue to which the Second Circuit looked in drafting a carefully crafted exception for tax accrual work papers, the fact that there are some facts incidental to the independent... the lawyer's thought processes, does not make the materials otherwise discoverable unless there is a particularized need shown.

Now, the components of the tax accrual are essentially two.

One is an evaluation of possible disallowances by the IRS and possible overpayments by the taxpayer.

It is not infrequent that in a review of the tax accounts we will find that a client has provided too much of a tax reserve and will not pay the taxes that it proposes to pay.

The second component is the evaluation of pending disputes with the IRS, either in the form of existing revenue agent reviews or sometimes in actual litigation.

Now, to make these evaluations the auditor must review the corporate records.

I note, it is the same universe of corporate records that are available to the IRS when it conducts its audit, and in this case the IRS agents made over 400 document requests to Amerada, 398 of which were complied with, and Amerada produced close to 45,000 pieces of paper to the IRS and expended some 11,500 person-hours of work prior to the time that the IRS sought enforcement of the summons against Arthur Young & Company.

The auditor must make a series of judgments on worst case scenarios, what could happen, what might happen, what's the likelihood of something happening.

But it is a judgmental process reviewing those facts.

It needs to discuss matters with the client's personnel.

For example, if there's been a revenue agent review and a disallowance, it needs to know the client's position with respect to that disallowance to determine whether or not the client has provided for a potential tax liability or whether the client intends to fight it.

It is not infrequent that we will find statements in the tax accrual work papers such as, the client will pay and let someone else litigate and preserve a claim for refund.

Similarly, there may already be a litigation and we will have counsel's opinion in the tax accrual work papers on the potential outcome of that litigation.

It is not unusual to find statements in there from counsel to the effect that, although there is a split in the circuits and we believe the client should prevail, we nevertheless recommend that the client settle this matter in the following amount.

The tax accrual papers, therefore, are an amalgam of opinions and only incidentally, as I noted, do they contain facts.

The Government's speculation on this is unsupported by the record below.

In addition, contrary to the Government's reply brief, the fact that an item is included in the contingency reserve does not mean that there is a substantial question about the correctness of the return.

Rather, it means that we are trying to evaluate the totality of the reserve in relationship to all the other accounts on the financial statements for the reasonableness of it.

As I noted at the start, it is not the taxes that we think the client will necessarily pay, but whether the amount provided for in the financial statements bears a reasonable relationship.

Unidentified Justice: You use the term Mr. Liggio.

Carl D. Liggio: Excuse me?

Unidentified Justice: You use the term "we".

Carl D. Liggio: I'm talking about Arthur Young & Company.

Unidentified Justice: You meant the client, you meant Amerada?

Carl D. Liggio: The independent auditor, Your Honor.

Unidentified Justice: The auditor, not the client?

Carl D. Liggio: Well, the client has the first responsibility for providing that provision in the tax return.

Unidentified Justice: In any event, the "we" does not include counsel, is that right?

Carl D. Liggio: That is correct.

It does not include counsel.

It is the independent audit process, the evaluation of the financial statements.

Counsel may be included, as it was in the El Paso case, in that evaluative process and in providing information to the auditor.

But basically I am looking at this as a function of the independent auditor in evaluating the financial statement.

Unidentified Justice: You're not suggesting that it's legal advice?

Carl D. Liggio: No, Your Honor, I am not suggesting that it's legal advice, although in the El Paso case it clearly was.

But I don't think we need to reach that issue here.

Unidentified Justice: And in giving this information, this advice to Amerada, Arthur Young & Company doesn't use lawyers for that purpose?

Carl D. Liggio: There may be lawyers in our tax department, but they are not lawyers acting as lawyers.

They are acting as certified public accounts.

Unidentified Justice: Mr. Liggio, at one place in your brief, on page 25, you say that under these circumstances, and you describe it.

It's the last paragraph of footnote 15:

"Under these circumstances, the creation of a qualified privilege is a proper exercise of judicial discretion. "

Do you think that's what the Court of Appeals did here, kind of exercised its judicial discretion to create a qualified privilege?

Carl D. Liggio: Well, Your Honor, yes.

I think what in reality the court did, and we may be getting into semantics, is as the Third Circuit did in Hickman and this Court did in 1947, it created a doctrine and it weighed the competing interests that were necessary.

Now, whether we call it a privilege or whether we call it a doctrine, I think the label is unimportant.

It is what the court in fact did, and it weighed those competing interests, and I believe that is an exercise of judicial discretion.

Unidentified Justice: Well, but don't you... aren't you stuck by some difference that Mr. Levy refers to, that the Hickman case arose in a context of litigation, where one of the concurring opinions says, even if a lawyer lives by his wits he shouldn't have to live... be able to live by his adversary's wits?

Where there is kind of an idea people should be made equal, it's competitive, adversarial, as opposed to this situation?

Carl D. Liggio: Well, in part that is here also, Your Honor, although the analogy to the work product doctrine, I think it's an analogue.

But there is that element of unfairness that's here and I think that is inherently the problem with the access to the tax accrual work papers, because we are making evaluations and judgments.

We're not saying... and & Company.

Arthur Young is not saying that in this set of circumstances this is the tax liability that the client has to pay.

Arthur Young and any independent auditor is looking at the totality of the amount of taxes that have been booked and provided for in the financial statements and they're saying, is it reasonable that the taxpayer is going to pay this over a course of time.

There are deferred taxes in there, there are current taxes, there are disallowances that are being litigated.

And it has in that process many judgments.

It has the independent lawyer's opinion who is handling the litigation.

It has the client's judgment on how it's going to fight or what it intends to do with the Service.

And you have very much an adversarial process there that will be invaded when you allow the IRS to get access to the tax accrual work papers.

Unidentified Justice: Were these papers prepared in your view in anticipation of litigation?

Carl D. Liggio: No, Justice O'Connor, there's no claim that they were prepared in anticipation of litigation.

Unidentified Justice: What if the work papers were sought not by IRS but by the SEC or by some private individual in a securities proceeding?

Do you think there should be a privilege there?

Carl D. Liggio: Well, first, Justice O'Connor, depending on the circumstances they may or may not be obtainable by the SEC or by the private litigant.

In any event, because of a question raised by Section 7216 of the Internal Revenue Code, it has been Arthur Young's position that we cannot make those papers available without a court order.

Otherwise we would be liable for criminal sanctions.

This provision relates to parties other than the Internal Revenue Service.

And in that set of circumstances we would, although we've never had the situation today, we would seek an appropriate protective order limiting the disclosure of the materials to the IRS or any other party.

Now, I note 72--

Unidentified Justice: What would it turn on if it were sought by the SEC?

What would the answer turn on in your view, the terms of a particular statutory provision or some policy?

Carl D. Liggio: --Well, whether the SEC would be entitled to it would be whether this was a proper subject matter of SEC investigation.

Unidentified Justice: Let's assume it is.

Carl D. Liggio: Then in that case they would be entitled to obtain it, having made the relevancy showing, and we would seek an appropriate protective order limiting the disclosure that the SEC could otherwise make to that.

Unidentified Justice: Well, why should the outcome be different if it's for the IRS?

Carl D. Liggio: Because, Your Honor, the IRS... the purpose for which these are prepared and the effect that will result from that is materially different.

In the SEC context, we are dealing with whether or not the financial statements are fairly presented in accordance with generally accepted accounting principles, and the access to that information by the IRS does not put the corporate client in a substantial disadvantage.

It is not unfair, inherently unfair, to allow the SEC access.

The IRS, it is.

Unidentified Justice: What if the papers had been given by the accountant to the client and they were in the client's possession and the IRS sought them?

Should there be a privilege?

Carl D. Liggio: I don't think that should change the result, Justice O'Connor.

But as a practical matter the tax accrual work papers are not given to the client.

They are our work product, our audit work papers.

Basically what the Service seeks here is the opinions and judgments.

As Judge Garwood said in his dissent in El Paso, what the Service wants is the private thoughts and theories of the accountants and the taxpayers.

The bottom line is the convenience of the Service.

And not only is the tension imposed upon the auditor-client relationship by allowing the IRS to conscript the auditors into becoming the Service's stalking horse when you allow access to the tax accrual work papers self-evident, but the public record is equally clear that it has had and will have a negative impact on the audit process and the quality of financial reporting.

The IRS challenges the Second Circuit's finding with respect to this as speculative and denigrates the affidavits submitted below in part of this record, as well as the substantial commentary that has been written on the subject by members of the private bar and the accounting profession as purely an evidence of self-interest.

Yet the Government is conspicuously silent on Commissioner Egger's own recognition that this problem, the access to the tax accrual work papers, the opinions and judgments of the auditors, had reached such emotional proportions that it had real potential for negative effects on the quality of financial reporting.

It ignores the presence of the amici, the other major accounting firms and the AICPA, which have pointed out the existence of this problem.

It ignores the reports in the public press on the problem that has happened.

And it ignores the AICPA study which is cited in the briefs and published in the Journal of Accountancy in 1981, showing that in fact there was a deterioration of the relationship between--

Unidentified Justice: Mr. Liggio, I don't quite understand this argument.

Are you suggesting that the corporation that is being audited or ultimately may be audited would conceal information from their accounting firm?

Carl D. Liggio: --No, Justice Powell.

Unidentified Justice: Are you suggesting that the auditors wouldn't probe for all relevant information?

Carl D. Liggio: No, Justice Powell.

What I am suggesting is that the level of candor, the amount of information--

Unidentified Justice: The level of candor by whom?

Carl D. Liggio: --By the corporate client.

Unidentified Justice: By the client.

Carl D. Liggio: The willingness to open up and come to us with the problems, to discuss issues, to say: We've got this IRS dispute, we're going to litigate it or we're going to settle it, we're going to settle it for 60 cents on the dollar.

I suggest we wouldn't have that information.

It would be like pulling teeth, and it would make the audit process substantially more difficult.

And it has in fact happened.

Unidentified Justice: If you audit a company's books regularly, do you have a relationship with your client that would not permit that sort of pressing type question?

Carl D. Liggio: Justice Powell--

Unidentified Justice: I would have thought so.

Carl D. Liggio: --the fact is that the onus of the IRS potential access to this is a very debilitating factor in the relationship, no matter how good it's been with our clients over the years.

As a practical matter, we saw it when the Service started subpoenaing the tax accrual work papers, and if they were to have that access again to get into these judgmental processes I sincerely believe that we're going to have that problem again.

Unidentified Justice: But if you didn't have information that you were satisfied was fully adequate, you'd qualify your certificate, wouldn't you?

Carl D. Liggio: That's correct, Your Honor, if we did not have adequate information.

But that's only if we thought the financial statements might be materially wrong.

There is a range within they could be correct and we would not necessarily have to qualify the accounts on that basis.

Unidentified Justice: But you can always get the information by telling the client you won't certify the audit if they don't give you the information.

And I don't think the problem is your access to it; it's rather what you don't want to appear in the file, isn't it?

Carl D. Liggio: Well, with all deference, Justice Stevens, I am not sure we will in fact get all the information.

And part of it is of necessity that the client volunteers things to us, and that level of communication we are convinced is going to be shut off.

Unidentified Justice: Mr. Liggio--

Carl D. Liggio: Yes.

Unidentified Justice: --Suppose the client asked its tax lawyer to prepare certain information, not in anticipation of litigation, but concerning potential tax problems.

Would any work papers of the lawyer be privileged under existing law?

Carl D. Liggio: They would in the first instance be subject to the attorney-client privilege, Justice O'Connor.

And in the second instance, we believe that they would not lose their privileged characteristic by showing them to the independent auditor.

There are a number of cases all--

Unidentified Justice: Even though they're... even if you assume, as I suggested, that they were not prepared in anticipation of litigation?

Carl D. Liggio: --The privilege that I'm talking about is the attorney-client privilege in the first instance, and the fact that they may be shown to the independent auditor we do not believe would lose the quality of that privilege.

As I say, there are some district court cases unreported that have in fact said the privilege is not lost under those circumstances.

Chief Justice Warren E. Burger: Mr. Jackson.

ORAL ARGUMENT OF WILLIAM E. JACKSON, ESQ., ON BEHALF OF RESPONDENT AMERADA HESS CORPORATION

William E Jackson: Mr. Chief Justice and may it please the Court:

I would like to deal further with the issue which has already been raised, that is one of the grounds for the opinion and decision of the Second Circuit below, and that is the issue of fundamental fairness.

And the issue is, quite simply as I see it, whether it is fair in the administration of the adversarial process between the taxpayer and the Service to permit the Service access to the private thoughts of the taxpayer as to how he intends to deal with the IRS in audit and in litigation.

Unidentified Justice: Mr. Jackson, if we should decide in our subjective judgment that it was not "fair" to do that, ought we to affirm the judgment of the Court of Appeals?

William E Jackson: I think yes, Your Honor.

I think that is one of the grounds on which that court reached its decision.

Unidentified Justice: What authority in our past cases is there for that sort of a thing, to just evaluate something in terms of "fairness"?

William E Jackson: I think, Your Honor, this Court has held in a series of cases, the Powell case being one, that an IRS summons will be enforced only under certain conditions.

And one condition is that the Service is not already in possession of the information.

That was part of the ruling in Powell.

Here there is no question that the Service is in possession of practically every piece of paper in Amerada's books and records relating to the factual transactional aspects of its tax liabilities.

That is, therefore there is no need for the Service to seek the tax accrual papers when it has had access to all the great volume of materials which Mr. Liggio mentioned earlier from the taxpayer.

And in Euge, which is a later case, the Court reinforced that aspect of enforcement of an IRS summons by saying that enforcement must in the case be necessary to the enforcement of the tax laws.

Now, we say that access by the Service to the judgmental and private thought papers contained in these tax accrual work papers is not necessary, first because there is no claim of fraud in this case.

And by the way, Your Honors, when the summons to Arthur Young was issued which is here involved this investigation had been under way for a long time.

The Service had had the records of Amerada Hess and it should have known by that time whether there was any basis to claim fraud or not.

But fraud is not in issue.

Therefore, it is not essential for the Service to seek for evidence of intent.

And indeed, the reply brief, I believe at page 19, disclaims any interest in the judgmental portions of these papers, which I think is certainly a concession that they are not needed for those purposes.

And so, if there is no need then I say it is unfair to enforce the summons against the taxpayer, against his independent auditor, to compel the revelation of his private thoughts as to his strategies in audit and in litigation.

And that's... this Court in a recent case involving an IRS summons, the Badgett case, adverted to considerations of fundamental fairness in the context of the enforcement of an IRS summons.

Unidentified Justice: What if the taxpayer had done his own work and prepared work papers that IRS sought?

Would they be somehow protected?

William E Jackson: Under this aspect of the Second Circuit's decision, yes, Your Honor, they would be.

Under the alternate ground, the additional ground, which is the intrusion upon the independent auditor's function, they would not be under that rationale because they're not independent.

But certainly from the point of view of compelling the taxpayer to reveal all in this adversarial process to the IRS while the taxpayer can't get the same information from the IRS, it would be most unfair.

And that was the situation, Your Honor, that was involved, of course, in El Paso, where the papers had been prepared internally.

Unidentified Justice: Well, I suppose not many taxpayers have ever thought that the proceedings with IRS were necessarily fair, have they?

William E Jackson: I will not disagree with that, Your Honor.

But I think that the Service overreaches in this instance by seeking the aid of the court to compel the taxpayer to, and his independent auditor to, reveal his strategies for dealing with an adversary.

Unidentified Justice: Mr. Jackson, may I ask you this question.

Supposing you have a set reserve.

I don't know what the amount might be, a couple hundred thousand dollars.

Could you be compelled to disclose the components of that, how much of that is for the particular pending claim and how much is for something else?

Do you think that you're just entitled to have it all concealed in a ballpark figure?

William E Jackson: Well, I think that to the extent that there are figures in the taxpayer's books and records with respect to the composition of the reserve, if it is flagged so much for this, so much for that, certainly the IRS could obtain them.

Unidentified Justice: No, I'm assuming they're not, they're not flagged.

You've got three separate claims in litigation.

You know what the demand is in each claim.

Could you be compelled to say with respect... and then there's $200,000 set aside.

Could you be compelled to say that 100 is for claim A, 50 for claim B, and 50 for claim C?

William E Jackson: I would say not, Your Honor, because that gets into judgmental private thoughts and not the facts as booked.

Unidentified Justice: Of course, it wouldn't do you any good if there's only one claim pending.

William E Jackson: That would make it more difficult, Your Honor, yes.

Unidentified Justice: Mr. Jackson, you referred to the fundamental fairness argument.

But isn't the entire tax system established on the theory that every person who evades or avoids a tax, particularly evades a tax, puts a burden on every other taxpayer, and doesn't that fundamental fairness have to take into account all of the taxpayers' interests?

William E Jackson: Yes, Mr. Chief Justice, I could not differ from that.

But I don't think that answers the question here.

Here what is involved is not the normal aspects of a tax audit in which the auditor seeks... the IRS seeks to determine whether there's liability and if so the amount.

This is a far more intrusive process, and I would not want the members of the Court to feel that in some way this privilege which we are arguing for is meant to serve as a cover for nefariousness or for deliberate tax evasion.

That is not at all... this was not at all in the mind of the Second Circuit.

But, Mr. Chief Justice and Justices, as you all know probably from personal experience how difficult the Internal Revenue Code is to read, let alone understand, with its qualifications and its exceptions and its cross-references and what-not.

And there exist many times good faith grounds for differences of opinion as to whether a given transaction is, say, subject to normal regular income or capital gains treatment.

And these are the areas in which we think that the private thoughts of the taxpayer, often informed and assisted by his counsel as well as his independent auditor, should not be subject to the intrusion of the IRS, and that it would be unfair to do so, because as the Second Circuit found, and I think common experience bears this out, the relationship between the taxpayer and the Service is at heart adversarial.

Certainly that is true in the case of a large corporation which is audited automatically, constantly, and the Service... they are constantly having differences over the treatment of certain items, and the Service's intent is obviously to maximize tax liability, the intent of the taxpayer is to take advantage of all lawful provisions in the tax laws to reduce liability.

Now, I would like to say one word on the subject of Congress' intent, which was raised earlier during the argument.

I think Congress' intent in this area must be found not only in the tax laws and not only in the securities laws, but also in Rule 501 of the Federal Rules of Evidence, which was enacted pursuant to Congressional authority and approved by Congress, and that is the rule which authorizes... indeed, the legislative history shows invites... the federal courts to develop the law of privilege under the principles of the common law, on the basis of experience in cases where development of new privileges are warranted.

This is a provision which the Government admits gives the courts the power to develop new privileges, as the Second Circuit did.

Their argument is that Congress should be the forum to decide this issue before the Court, rather than... that is, the issue of privilege... rather than the courts.

Well, I submit that is no answer.

However this Court decides the case, it will be decided one way or the other and it will decide in favor of one policy or the other, in favor of fairness or that fairness is not offended.

This Court will be making the decision, and indeed this is what Congress envisioned in Rule 501.

And indeed, even before that rule was adopted this Court in the Hickman case, which the court below relied on as an analogue, the Court did not leave the question to Congress.

This Court decided it and held proper the creation by the lower court of the attorney's work product privilege.

In short, Your Honors, we think that the position which is taken by the Government here is contrary to the position of the Service itself in its revised guidelines which permit access to the tax accrual work papers only as a last resort, only after all other avenues of factual inquiry have been exhausted, and only on a showing of particularized need for specific issues, not some generalized desire to see whatever may turn up in the tax accrual papers.

We think, in short, that the position of the Government on this case is belied by the position of the Service.

We think the Government seeks to overreach and that this Court should not countenance that result.

Chief Justice Warren E. Burger: Do you have anything further, Mr. Levy?

Mark I. Levy: No, I have nothing further, Mr. Chief Justice.

Chief Justice Warren E. Burger: Thank you, gentlemen.

The case is submitted.

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