William H. Rehnquist: We'll hear argument now in Margaret Bradshaw v. John David Stumpf. Mr. Cole.
Douglas R. Cole: Mr. Chief Justice, and may it please the Court: John Stumpf pleaded guilty to the aggravated murder of Mary Jane Stout. The evidence shows he is, in fact, guilty of that crime. The court below, nonetheless, vacated his conviction on habeas review citing two grounds. Its reasoning on each directly conflicts with this Court's opinions and significantly undermines the finality of the hundreds of thousands of State court criminal convictions based on pleas.
Sandra Day O'Connor: Counsel, I... I think he was given the death sentence. Is that right?
Douglas R. Cole: That is correct, Your Honor.
Sandra Day O'Connor: At the end of the day. And there was a separate sentencing hearing?
Douglas R. Cole: There was a separate mitigation hearing under Ohio law, yes, Your Honor.
Sandra Day O'Connor: And was it argued at that hearing by the State that Stumpf was the triggerman?
Douglas R. Cole: Your Honor, the State said that they... they thought there was evidence to support that. They said, I don't believe it's necessary for this court to conclude he was the actual shooter, and that's in the joint appendix at 186. So the death penalty is appropriate--
Sandra Day O'Connor: But it was argued.
Douglas R. Cole: --The court... or I'm sorry. The prosecutor argued that there was sufficient evidence to show it.
Sandra Day O'Connor: And was there evidence at the recent habeas hearing that at least one of the sentencers relied on the fact that the judge thought Stumpf was the triggerman and the murderer?
Douglas R. Cole: Your Honor, after... at the time of the original sentencing hearing there was no other evidence, this new evidence of which he's complaining--
Sandra Day O'Connor: Right.
Douglas R. Cole: --didn't exist. When it came into being,--
Sandra Day O'Connor: Right.
Douglas R. Cole: --he then moved to vacate his sentence at the State--
Sandra Day O'Connor: Right.
Douglas R. Cole: --court. And the judge there from the original panel--
Sandra Day O'Connor: Yes.
Douglas R. Cole: --one of the judges said, it may have made a difference. Of course, they had before them a motion to vacate the... the sentence at that time, and they denied that motion. So apparently it didn't make a difference to that judge. Two other Ohio courts have independently reweighed all of the evidence and found that the death sentence was appropriate.
Sandra Day O'Connor: Well, I guess my concern actually is more with the sentencing proceeding here, in light of what's happened, than with the guilty plea. And I suppose it's possible that that stands, but conceivably he's entitled to a hearing on the sentencing aspect.
Douglas R. Cole: I... I guess that would be conceivable, Your Honor, although I note that there's only one due process claim he's making. He's making one form of constitutional error claim predicated on the Due Process Clause, and if there was no due process violation with respect to his conviction, which is the claim that he was pressing before the Sixth Circuit, there's similarly no due process violation with respect to his sentence.
David H. Souter: Why--
Sandra Day O'Connor: Do you think he has waived any due process claim insofar as it applies to the sentencing? Do you think that's waived? Is that clear?
Douglas R. Cole: No, Your Honor, I wouldn't say that. In his Sixth Circuit briefs, he does... in a section that's entitled I hereby challenge my conviction, he does also note in that section that he's got some concerns about his sentencing hearing. So I don't know that he's waived that. But I don't believe that there's a valid due process claim that he has with regard to either his conviction or his sentence.
David H. Souter: --Why do you argue that if there is no due process violation with respect to the actual plea, there is, therefore, no due process violation with respect to the sentence?
Douglas R. Cole: Well, because his theory, Justice Souter, is the same with regard to both. He says this... the use of this--
David H. Souter: Yes, but we... we may say the theory really is... is not sufficiently relevant with respect to the plea but that it is with respect to the sentence.
Douglas R. Cole: --That's conceivable, Your Honor. We understand that the... we understood the Sixth Circuit opinion to be directed toward his conviction. So the--
David H. Souter: I... I... no question about that.
Douglas R. Cole: --the thrust of our arguments before this Court were directed towards the conviction. The other side then raised, oh, the State has waived their claim about the sentencing, and... and we were just making--
David H. Souter: No.
Douglas R. Cole: --clear that, A, we haven't, but B, in any event, the due process theory sounds the same in both. And so if there's not a due process problem, with respect to these arguably inconsistent theories, then there's not a due process problem with respect to his sentence either. He hasn't brought any other set of facts--
David H. Souter: No. I... I understand that. May I go back just to one factual issue before we go on and forget it? You... you stated, in response to Justice O'Connor, that the State argued in... in the Stumpf case that there was sufficient evidence to find that he was the triggerman. Did the State stop there and say, in effect, we don't care whether you find him the triggerman or not? We're just telling you there's enough evidence. I... I assumed the State went on to say there is enough and you ought to find that he is the triggerman.
Douglas R. Cole: --Well, Your Honor, referring to page 187 and 188 of the joint appendix, he says, given those circumstances, although we believe the evidence does prove he was the shooter of Mary Jane Stout, legally, technically, I don't believe it makes any difference when you have two people acting in concert for the joint and unlawful purpose of committing an aggravated robbery and... and murder results.
David H. Souter: Did... did the prosecutor ever say he was the triggerman? The evidence supports it and... and that's the conclusion that ought to be drawn: he was the triggerman.
Douglas R. Cole: He said there's ample evidence from which the court could conclude--
David H. Souter: But did he take the second step and say there's ample evidence and he was, in fact, the triggerman and you should so find, or in so many words?
Douglas R. Cole: --In so many words, Your Honor, in connection with the mitigation phase, in... in connection with the factual basis hearing even, he put on the evidence saying, you know, Mr. Stumpf says he wasn't the shooter and gives a lot of reasons to discount that evidence. So he's arguing that in fact Mr. Stumpf was the shooter. I think it's a fair implication if he doesn't say the express words, but it's a fair implication. Of course, at that time, there was absolutely no evidence to the contrary. Mr. Wesley had not yet been extradited from Texas. He hadn't even made this alleged statement to Mr. Eastman.
Ruth Bader Ginsburg: Well, the... the evidence was Stumpf... Stumpf himself who said Wesley was the triggerman with respect to Mrs. Stout. But I wanted to ask you a question about... that... it relates to the sentencing part and it follows up Justice O'Connor's question. The... the... you... as... if I understood you right, you said, well, there was a motion that came before two of the three judges that were part of the guilty plea and the sentencing. This was a plea, so no jury trial. It was three judges. One of them had died. The... the two who remained... one of them said, but if we had not been satisfied that Stumpf was, in fact, the triggerman, and we were satisfied that he was, in fact, an aider or abetter, that may very well have had an effect on the court's determination whether the death penalty should follow. I'm not saying it would, but it's possible. And then you said, but then he went ahead and voted to deny the motion.
Douglas R. Cole: To vacate the sentence, yes, Your Honor.
Ruth Bader Ginsburg: Yes. But there's no explanation at all. The only expression that we have from that judge is... he said, well, it's conceivable, although it wouldn't affect guilt, we would have come out with a different sentence, and then going from that statement to nothing, just a denial without explanation. You... you want us to infer from that silent denial that the judge must have resolved his own difficulty and decided it wouldn't make any difference on the sentence.
Douglas R. Cole: Well, A, I think that's an inference that's supported by the fact that he voted to deny the motion, but B, in any event, there's been an independent reweighing of all of the evidence in the Ohio intermediate appellate court and that court said that... very specifically said, even if we didn't believe he was the principal... or principal offender, the actual shooter... we do believe that. But even if we didn't, the death sentence here would be appropriate. And this Court noted in Clemons that an independent reweighing by an appellate court of the evidentiary record can be sufficient to secure... or to--
Ruth Bader Ginsburg: But it would be appropriate because the statute permits it. But the decision-maker has three choices. And if the evidence had come in that Wesley was the triggerman, maybe the... this panel of judges would have done what the jury did in Wesley's case, that is, it's the same crime, but not give the death penalty for it.
Douglas R. Cole: --Well, Justice... Justice Ginsburg, the... the evidence wasn't available at the time of the original sentence. So the failure to have that part of the record at the time of the original sentencing hearing, of course, can't violate due process. And then the question would be, did something that happened later violate due process? But I just don't think it can be the case that anytime new evidence comes up that might cause a judge to say, boy, if we'd have had that evidence before when we... when we reached the sentencing decision, we might have reached a different result--
Anthony M. Kennedy: Well, what... what is the rule if there are two successive... there are successive trials with different defendants and there can only be one shooter and in each trial it's found that the defendant is the shooter? What should be the rule, or does the... does the second person get the advantage? Does the State have to begin all over again with both? Or... or does the State have no obligation to correct either?
Douglas R. Cole: --Well, Justice Kennedy, I... I think it depends, at least in part, on what role that finding played. If those two verdicts each had as an essential component this fact, this person is the shooter and this person is the shooter, so that the verdicts are necessarily inconsistent so that we know the State has actually got someone in jail they're punishing that's innocent, we would concede there may be a substantive due process right of the... against the State because the State at that point--
Antonin Scalia: By whom? By which one of the two?
Douglas R. Cole: --Your Honor, I... I think that's a great question.
Antonin Scalia: Do we flip a coin?
Douglas R. Cole: Well, I... I think the point is probably both would have some kind of claim in that I don't think the State can pursue and convict two people on necessarily inconsistent theories because at that--
Antonin Scalia: Why... why is that? I mean, it seems to me due process requires that there be enough evidence to... for a jury to find beyond a reasonable doubt that... that the person was the shooter. And if in... if there is, indeed, in both cases enough such evidence, it seems to me there is no denial of due process, and that the usual manner of accommodating for that apparent injustice is... is for the Governor to grant clemency to one of the two, have him figure out which one of the two wasn't the shooter, or to apply for... for reopening of the... of the... of one of cases. But I don't know that there is automatically a due process violation which allows one or the other of the cases... proper convictions. Each one is fully proper. I don't know that there's a due process violation that allows one of them to be set aside.
Douglas R. Cole: --And I don't know that there is either, Your Honor. We'd be willing to concede that for purposes of this argument because even if there is, it doesn't apply here--
Antonin Scalia: Due... due process doesn't mean perfection. It doesn't mean that each jury has to always reach the right result.
Douglas R. Cole: --I... I agree with that, Your Honor, and I hate to argue against my position, so I... I do this gently. But at the same time, the court has noted and... and one of the old saws of American law is... is it's better one guilty person should go free than that one innocent person should be punished. And if the State knows, as a matter of fact, that it secured two convictions for a crime that only one committed, the State knows at that point that it's punishing at least one innocent person and that might violate--
William H. Rehnquist: When... when did this new evidence come to light?
Douglas R. Cole: --The new evidence came to light some 6 months after his plea was entered and after the sentence was announced.
William H. Rehnquist: Did the other guy confess to a... kind of a jailhouse snitch?
Douglas R. Cole: To... to a jailhouse informant, yes, Your Honor. And the prosecutor put that evidence on at trial, at Wesley's trial, but it's interesting to note what he did with that evidence at Wesley's trial. He put it on but then in closing very expressly noted that while there's been this evidence, even if you don't believe he's the principal offender, you can still find him guilty of aggravated murder.
David H. Souter: But it is the case that he argued that... that you should find him guilty because he was the triggerman. I mean, that was an alternative argument. So the... I mean, I think what's the... the concern following Justice Kennedy's question, the concern that I have is not with the... the guilt or innocence as such here. It's with the sentencing. And as... it seems to me fair to say that as the record stands now, the State has made two arguments: one that Stumpf was the triggerman, one that Wesley was the triggerman. It has to be the case that one of those arguments, if accepted, would lead to a false result. And the question... I think the due process question is whether the State can pursue those inconsistent arguments, even if it starts out innocently doing it, but can it pursue two inconsistent arguments knowing that in one case the argument must be for a false result, without there being any kind of... of process to correct the State's inconsistent positions? What... I mean, what's your response to that?
Douglas R. Cole: Well, Your Honor, first, I... I don't think they're... he was without process. Mr. Stumpf had abundant process within the State system. He got all the evidence--
David H. Souter: Oh, he could... he could get into court, but as I understand it, there was no recognition here that there is... that there is in fact something wrong with the two inconsistent... or the two arguments of the State, each of which, if accepted, will necessarily result in one false conclusion.
Douglas R. Cole: --Well, Your Honor, the... again, the intermediate appellate court independently reweighed this evidence and concluded that even if we conclude that Mr. Stumpf is not the shooter, even if that's our... our conclusion... it isn't, but even were we to conclude that, the death penalty would still be appropriate here. So there's been an independent reweighing of the evidence minus the mitigating evidence or minus the--
David H. Souter: Maybe... maybe that's enough. Let me, with respect to that, just ask you one final question. And I'm assuming the... the answer, but I want to be sure. I assume that at the point of this intermediate court's reweighing, the intermediate court was aware of the... the evidence of... of... the hearsay evidence of Wesley's confession and was aware that the State argued in the second case that Wesley was the triggerman. Am I correct?
Douglas R. Cole: --Yes, Your Honor. He... the prosecutor, in fact, stipulated to the admissibility of the Eastman and the Wesley evidence from Wesley's trial back into the Stumpf proceeding in the original trial court before the two judges... the two of the three judges that were remaining at that point, and then--
David H. Souter: And... and I take it also--
Douglas R. Cole: --That was part of the record on appeal.
David H. Souter: --stipulated or represented or admitted, whatever, that in fact the State had argued in the second case that Wesley was the triggerman.
Douglas R. Cole: I believe so, Your Honor. The indictment in Wesley's case included a specification that he was the principal offender, so at the very least, the indictment would--
David H. Souter: Because of being... because of being the triggerman.
Douglas R. Cole: --The only way to be the principal offender under that specification is to be the triggerman. So that... that's clear from the face of the indictment in... in Wesley's case that the State had argued that. Now, the jury, importantly in Wesley's case, found that he should be acquitted on that aggravating circumstance. It's not an element of the crime, but it's one of the aggravating circumstances that the State could rely on in seeking the death penalty in Wesley's case, and the jury specifically rejected that aggravating circumstance and... and found that the State had not proved it beyond a reasonable doubt. Throughout the... throughout the appellate process, with regard to the sentence, the State's attorney argued that, yes, there's evidence in the record from which you could conclude that he's the actual shooter, but in any event, it doesn't matter. And the... the State's attorney was correct in that, as a matter of Ohio law, aiders and abetters can both be found guilty of aggravated murder under Ohio law and are subject to the death penalty. The two... the two aggravating circumstances... I'm sorry. The one aggravating circumstance that remained after the plea deal turned merely on the reason why Mrs. Stout had been put to death. It did not turn at all on who was the person who put her to death. So as an accomplice, aider, and abetter, with liability for the aggravated murder, he was also subject to the death penalty under that--
John Paul Stevens: But, General Cole, isn't there a distinction between eligibility for the death penalty and actually making the decision to impose the death penalty? And it's perfectly clear... you're dead right, of course. He's eligible under either theory. But is it not likely that the sentencer would be more likely to sentence the defendant to death if the sentencer thought he had been the actual shooter?
Douglas R. Cole: --I... I think it's definitely a fact that the court weighs, although here we have evidence that at least one Ohio court took that possibility into account and said even in light of that fact--
John Paul Stevens: Right.
Douglas R. Cole: --we still conclude that the death sentence is appropriate. So I don't know that we can say that in this case it in any way would change the outcome. In fact, the record--
John Paul Stevens: Well, and the original sentencer might... might not have done the same thing. We don't really know that.
Douglas R. Cole: --Well, this did go back in front of the two... two of the three original sentencers and they declined to allow him to vacate his sentence. The intermediate appellate court then independently reweighed and expressly said, whether he's the shooter or not, he's eligible for the death sentence. So there have been a number of Ohio judges that have--
Antonin Scalia: As I understand the facts, even if he hadn't shot the wife to death, which was what the prosecution was for, he had tried to kill the husband, shooting him twice in the head?
Douglas R. Cole: --Twice at the head from essentially point-blank range, Your Honor.
Antonin Scalia: From point-blank range.
Douglas R. Cole: Right.
Antonin Scalia: And then there was some discussion that the... that the lying, seriously wounded husband heard between the two perpetrators, and then there was shooting of the wife. Whether he pulled the trigger or not, could that possibly make a difference? He did pull the trigger trying to kill the husband. Is it difficult to... to think that... that he willingly allowed his... his cohort to do the same to the wife? I... I can't imagine it would make any difference.
Douglas R. Cole: Your Honor, we agree and that certainly falls well within the... the range of culpability that this Court set out in--
Stephen G. Breyer: There's no doubt that they could have... the trier of fact could have reached the same conclusion. But I guess the problem is that when you go back to reopen the evidence the second time and the judges are sitting there, someone might have thought, well, the husband didn't die, and we don't know if he actually pulled the trigger on the wife. And we're trying to guess what those judges would have done if they thought that. I don't know. It could be that people don't want to impose capital punishment without thinking I know that this person has killed somebody, and if that's so, they wouldn't have reached the same conclusion. Now, I guess that's the problem because at that time on reopening, the State told that panel of judges pretty clearly by implication that the State thought that the evidence did support Stumpf having pulled the trigger, even though at that point the State knew and indeed referred to the statement to... you know, the confession and all the things in the second trial. Now, what do you think about that problem?
Douglas R. Cole: --Well, first, Your Honor, I don't think we have to guess what the judges would do because the judges did what they did. They denied the motion to vacate and then--
Stephen G. Breyer: They denied it, but as I read what the Ohio court said after the denial, I thought it did probably rest upon their determination that Stumpf had pulled the trigger.
Douglas R. Cole: --And certainly the intermediate--
Stephen G. Breyer: Did you think that?
Douglas R. Cole: --Well, the intermediate appellate court expressly said that its determination did not turn on who had pulled the trigger, that they would have reached the same conclusion independent of who pulled the trigger.
Ruth Bader Ginsburg: But the panel... the panel that didn't reopen... there was no reopening because they denied the motion. But they didn't say one way or another.
Stephen G. Breyer: It's the Supreme Court of Ohio that then I think I got my impression from, and of course, they don't know either.
Douglas R. Cole: Well--
Stephen G. Breyer: The fact is we don't know what that original panel thought.
Douglas R. Cole: --That's--
Anthony M. Kennedy: Well, it isn't that... isn't one of the answers to Justice Breyer's questions that you... you never know exactly what a fact finder would do. What you have to deal with are reasonable likelihoods and reasonable possibilities.
Douglas R. Cole: --That's--
Anthony M. Kennedy: And when... and when you have someone who shoots the first person and is obviously attempting to kill him, and then there's an apparent discussion... not... not 100 percent clear that those were the two voices. It's pretty clear because there were only two other people there. So we talk about reasonable likelihoods, don't we?
Douglas R. Cole: --I would think that's--
Stephen G. Breyer: Absolutely right. Of course, that's right. We can't be sure what they would have done, and because we can't be sure what they would have done, I guess it might well have made a difference that the State told that panel we think Stumpf pulled the trigger.
Douglas R. Cole: --But--
Stephen G. Breyer: And that's what gives rise to the problem in the case.
Douglas R. Cole: --But, Justice Breyer, I think it... it's always going to be the case that after a sentence is announced, there's the possibility that new evidence might come up that would cause us to say we can't know for sure what this panel would have done with that new evidence. And so there needs to be--
Stephen G. Breyer: --the State say when it comes to the panel, the reopening panel, we'll tell you something. We think, indeed, that's what we argued, that the State... in the last case we argued that Stumpf didn't pull the trigger, that the balance of evidence is against that, but nonetheless, he should be sentenced to death. That would make your position absolutely consistent with what you argued in that second trial with Mr.--
Douglas R. Cole: --Mr. Wesley.
Stephen G. Breyer: --Mr. Wesley.
Douglas R. Cole: But, Your Honor, I'm not sure that that would have been the State's position. I don't believe after the Wesley trial, that the balance of the evidence necessarily showed that Wesley was the shooter versus Stumpf. That was one person's testimony.
Anthony M. Kennedy: Yes. Now, the... the jury in the Wesley trial rejected that position.
Douglas R. Cole: They did, Your Honor, and Mr. Wesley... it isn't as though all the new evidence is in Mr. Stumpf's favor. Mr. Wesley, the only other eyewitness who's testified, came and sat on the witness stand and said, yes, Mr. Stumpf pulled the trigger. At the end of the day, the only two people who know exactly who pulled the trigger are Mr. Wesley and Mr. Stumpf, and they have every reason to point their finger at the other person. So if that's--
David H. Souter: Okay, but wait. Who did the... who was the last person the State pointed its finger at? You... you told me in... in response to earlier questions that when the case back before the two remaining members of the panel, that in fact the State brought the... called to their attention the fact that Wesley had confessed and... and it was... it was clear one way or another that... that they had argued in Wesley's trial that he was the triggerman. When they... at that point when they are back before the two remaining members of the panel in Stumpf's case, did the State say we now go back to our original position that Stumpf was the triggerman and Wesley wasn't, or did they say we think... we think Wesley is the triggerman and Stumpf wasn't? Or did the State simply stand there agnostic?
Douglas R. Cole: --The State... and I would encourage the Court to look at the State's response to that motion, which is in joint appendix at 126. But what the State says on 126 is... essentially there's a lot of agnosticism in the response. It says, look, there's this new evidence. We don't know. It seems like from this record you could conclude that Stumpf was the shooter, but then the State says even deleting that finding, even if you don't agree with us, or even if you don't agree that's the case, because the State isn't really saying this is our position anymore, even if you delete that finding, there's still sufficient evidence here to support a death penalty against Mr. Stumpf.
Antonin Scalia: Could... could I get one fact? Wesley didn't confess or we don't know that he confessed. He... he said he wasn't the shooter at trial, didn't he?
Douglas R. Cole: That's correct, Your Honor.
Antonin Scalia: But what was introduced was... was the testimony of one of his jailhouse companions who said that Wesley had told him that he was the shooter. So who was the shooter was... was as much an issue in Wesley's trial as it was in Stumpf's trial, wasn't it?
Douglas R. Cole: As the court expressly... or as... as the State expressly noted in its closing in that case--
John Paul Stevens: Yes, but the State's position was that the jailhouse informant had told the truth, wasn't it?
Douglas R. Cole: --In closing--
John Paul Stevens: At the trial.
Douglas R. Cole: --In... in closing at that trial, Your Honor, the... the prosecutor was relatively agnostic, frankly. He said, look, you could conclude--
John Paul Stevens: He at least put in the evidence.
Douglas R. Cole: --He... he put in the evidence, and then he said, look, from this evidence you could conclude that Wesley was the shooter. You could also--
John Paul Stevens: And normally you don't put in evidence unless you think it will support a proposition that you... that you're in favor of.
Douglas R. Cole: --Well, and Your Honor, I... I think if he could show Wesley was the shooter, that would, of course, support a conviction against Wesley, but he recognized that the jury didn't necessarily need to believe that, and in fact, he wasn't relying on that in order to secure the conviction.
David H. Souter: May I ask you one final question? As a matter of due process, why shouldn't the State... after learning of the supposed admission in Wesley, after taking Wesley's position, why shouldn't the State, when it gets back to the Stumpf case before the remaining two members of the panel, have to fish or cut bait on a position and say we think he's the triggerman and we want you to affirm on that basis, or we don't think he was the triggerman because we've taken this other position? Why can the State, as a matter of due process, stand there agnostic?
Douglas R. Cole: Because, Your Honor, the State is not the fact finder. The judge is the fact finder. The State needs to put the evidence in and allow counsel for the defendant, counsel for the State to argue positions, and let the fact finder make the ultimate determination. With the Court's permission, I'd like to reserve the rest of my time.
William H. Rehnquist: Very well, Mr. Cole. Mr. Freedman, we'll hear from you.
Alan M. Freedman: In light of the questioning, I'd like to indicate what exactly was argued below and what was the rulings. In... in the first Stumpf trial, they... they argued that there was, quote/unquote, ample evidence to point--
William H. Rehnquist: Who is they?
Alan M. Freedman: --The prosecutors. I'm sorry. Mr. Chief Justice, and may it please the Court: The prosecutors argued that there was ample evidence, quote/unquote, pointed--
Ruth Bader Ginsburg: Mr. Freedman, it wasn't a trial. It was a... it was a plea hearing.
Alan M. Freedman: --That's correct, but there was... but... but in Ohio there's a requirement to have an actual prove-up of the aggravating factor itself. And they argued that there was ample evidence, quote/unquote, pointed to Stumpf as the killer, and that's in joint appendix 186 to 187. Ultimately they... and they urged that he was the shooter. Then when the Wesley trial took place, at the trial they did the same thing. They used the same terms, quote/unquote, ample evidence that Wesley was the shooter. They urged a finding that Wesley was... was the shooter.
Ruth Bader Ginsburg: I... I thought the prosecutor in closing in the Wesley trial said, it could have been Stumpf, but it doesn't make any difference.
Alan M. Freedman: They--
Ruth Bader Ginsburg: I thought they argued both?
Alan M. Freedman: --That... they really didn't argue both. They... they... effect... that was the throwaway argument. They came in there... what... what I think is critical in both trials and later on in the proceedings is what they were urging, what they were recommending the... to the jury.
Anthony M. Kennedy: Well, but it's at the bottom of page 187. We're on this same point. Given these circumstances--
Antonin Scalia: What... what page is that?
Anthony M. Kennedy: --187 like the... of the joint appendix. Given these circumstances, although we believe the evidence does prove he was the shooter, I don't believe it makes any difference when you have two people acting in concert for the joint and unlawful purpose of committing an aggravating robbery. That's at the top of 188.
Alan M. Freedman: But the... but they urged. They recommended. They didn't come in and say... and throughout this proceeding... we don't know who the shooter is. We don't care who the shooter is. They both deserve the death penalty. They... they were... the prosecutors were aware that the... the death penalty is what stirs the pot here, and so they were urging somebody to be the shooter to get the death penalty. If this wasn't a death penalty case, I don't think they... it would have mattered who killed who. And so they were urging--
Anthony M. Kennedy: Well, I think there's quite a difference in... in case A where you say our position is that Stumpf was the shooter, pure and simple. That's it. In case B, they say we think Stumpf was the shooter. We're not 100 percent sure, but he should get the death penalty. The alternative is before the sentencer and the sentencer can make that determination.
Alan M. Freedman: --But... but they took the position of actually urging, making a recommendation. I... I don't think there would be a due process violation if they said, we don't know. They didn't take that. They... they urged a position, and I think that's the key factor when the... in this case.
Antonin Scalia: What... what was the due process violation here? You're talking about due process in the second trial, in--
Alan M. Freedman: The due process violation, Your Honor, would be--
Antonin Scalia: --Was in the first trial?
Alan M. Freedman: --No, of course, there wasn't in the first trial.
Antonin Scalia: But that's the trial that you're trying to get set aside here.
Alan M. Freedman: We submit that the due process error is at the motion to vacate. At that time, again, after taking the position that Wesley was the shooter, they came back and urged that... that Stumpf was the shooter, that the record was ample enough to support Stumpf being the shooter--
Antonin Scalia: Well, it was. They're... they're just... they're just arguing that the evidence we introduced supported the jury verdict. What... what is wrong with arguing that? There's--
Alan M. Freedman: --Because they've taken inconsistent positions. The... the violation here is in the positions itself, not in necessarily the results.
Antonin Scalia: --Not... not if they said in the second trial it doesn't matter whether he's the shooter.
Alan M. Freedman: I think they did more than it didn't... it just didn't matter. I think they urged the position. It would... I mean, a lot of the cases in the lower courts have made that distinction when the... when the State comes in and says, we don't know what happens. We can't tell you who the shooter is or not, and we don't care who the shooter is.
Anthony M. Kennedy: Suppose the State had said on motion for resentencing in Stumpf's trial, Your Honor, we took the position that Wesley was the shooter in Wesley's trial. The jury disbelieved that. We accept the jury's verdict. Our position now is that... that Stumpf was the shooter. We've learned from the jury verdict in the Wesley trial. We've had 12 people. They heard the evidence. We'll accept that. Any difference in that case and what we have here?
Alan M. Freedman: It's different, but that's not what happened. It's different if they've taken... if they've taken the position--
Anthony M. Kennedy: It... it would... in the case I put, would your argument be the same, and if so, why?
Alan M. Freedman: --I... I put it that it's not the same because they... first of all, in reality, that's not what they did. But let's talk in terms of the hypothetical that... that you've asked me. It is that you have to also look at what actually happened in the Wesley trial to determine due process for Stumpf because Wesley... what happened in this case through the whole circular reasoning, Wesley didn't get the death penalty here because they were informed that Stumpf pled guilty, was found to be the principal offender, and was sentenced to death. Now--
Ruth Bader Ginsburg: That was introduced by Wesley, not by the prosecution.
Alan M. Freedman: --That's correct. The prosecution in the Wesley trial originally did not want the... the jury to hear at all what happened in Stumpf's trial. They wanted to argue the complete... that... that Stumpf's verdict was not even... should be informed. The sentence of death shouldn't be informed or the sentence of death. And in fact, that's when they started to throw in a little bit of the alternative theory after that evidence did subsequently get in. The record shows that they originally did not get it in and they allowed the defense counsel... prevented defense from getting... in the Wesley trial from getting in the evidence of the Stumpf trial.
Ruth Bader Ginsburg: Mr. Freedman, you're trying to read back now into what apparently you recognize is... is not a flawed initial sentencing hearing.
Alan M. Freedman: That's correct.
Ruth Bader Ginsburg: And it might be more persuasive if the trier were a jury when the motion to vacate is made, but these are judges whose business it is to preside over these kinds of cases. They presided over that first hearing and now the same prosecutor... was the same prosecutor in both?
Alan M. Freedman: That's correct, Your Honor.
Ruth Bader Ginsburg: Comes back to them and says, judges, don't vacate the sentence that you yourself entered. It's... given that we're dealing with sophisticated judges, the same panel in both episodes, it's a little hard to... to see where the due process violation is.
Alan M. Freedman: The due process violation is that at the minimum, assuming that... that a weighing is even appropriate here, they never weighed it, and clearly any indication that there was a waiver... a... a weighing of whether Mr. Stumpf would be put to death as an aider and abetter. They never took Eastman's testimony as true and... and the prosecution's position as true, and then ultimately said it would make no difference.
David H. Souter: Well, they didn't have to take it as true. As I understand it, when they went back before the... the two original judges on the motion to vacate, they didn't have to take the... the testimony about the jailhouse admission as true, and they didn't have to take the State's position at the Wesley trial as true. It was evidence. It was before them. They were in... they were required to consider it. But as I understand it, the State at that point essentially was... was agnostic. The State said, you know, this is what happened, this is what we said, this is what the jury did in the second trial, but regardless of how you determine... of... of any determination about triggerman, this man Stumpf still deserves death, so don't vacate the sentence. And... and there was nothing I guess... number one, there doesn't seem to be at that point a... a problem with the State taking inconsistent positions, i.e., with its position in... in the... in the Wesley case, and there doesn't seem to be any... any lack of candor. There may be a... a lack of initiative on the State's part to fish or cut bait, but there's no lack of candor. So where does the due process violation come at that point?
Alan M. Freedman: We submit the due process violation comes at the time of the motion to vacate. We urge... we're urging that they've not take an agnostic position as prosecutors. They're... they're urging again saying the... the evidence is ample to support that... that Stumpf was... was the shooter.
David H. Souter: But it... I mean, that... that statement is true, I take it.
Alan M. Freedman: But... but they're also urging a position. The State at some point should take a position on what the evidence is. At that position... at that point, after urging that Mr. Wesley is the shooter, they... were they untrue? Were they... I mean, the prosecutors at that point maybe then... if they were believing that... that Eastman was testifying truthfully, why wouldn't they now believe that he was testifying truthfully now in the motion to vacate?
Antonin Scalia: Well, because it seems to me they... they would have two arguments. One is even if he wasn't the shooter, you... you should... you would have imposed the death penalty anyway, but argument number two is, wait a minute. You know, yes, we... we don't know who the shooter is but there's a... there was no violation of due process here. There was plenty of evidence for you to find that he was the shooter. That evidence is still there. Do you expect them to throw away that argument? I mean, it's... it's very true and it goes to whether this conviction and sentence deserve to be set aside.
Alan M. Freedman: We... we proffer to the Court that they shouldn't be taking inconsistent positions as to... in a death penalty case in the sentencing--
Ruth Bader Ginsburg: What should... what... was Wesley then denied due process? Because at the time of Stumpf's initial plea hearing, Eastman hadn't appeared and there was only Stumpf's testimony that he was not the triggerman and the prosecutor's evidence that he was. Then we get to Wesley, and Eastman shows up. The prosecutors have already taken the position that Stumpf was the triggerman. Is Wesley denied due process because they're taking inconsistent positions at his trial?
Alan M. Freedman: --I... I don't believe that Wesley was denied due process. They discovered the evidence afterwards and ultimately at that trial they had... the Wesley jury had the opportunity to hear what happened in the Stumpf trial, and they were able to weigh that case along with the evidence of the Stumpf finding and sentence of death and the finding that he was the principal offender. That's something we submit has not happened in this death penalty case.
Sandra Day O'Connor: Well, do you concede that the evidence presented in the Stumpf proceeding was sufficient to support a finding of guilt as an aider and abetter? Was there enough evidence that the fact finder could so find?
Alan M. Freedman: Without the Wesley evidence, I... I... at the initial trial, I certainly would concede that.
Sandra Day O'Connor: Right, right.
Alan M. Freedman: As... as to... as to whether the evidence that you learn from the Wesley trial... that's a much closer question because the... the aggravating factor in this case--
Antonin Scalia: She asked as aider or abetter, not as shooter.
Alan M. Freedman: --Okay, all right. I'm just... that's correct.
Sandra Day O'Connor: And as to that, it seems to me the guilty plea can stand and the only question that, it seems to me, I would have would be with the sentencing, and I'm not sure that has to be overturned.
Alan M. Freedman: Well--
Sandra Day O'Connor: So it would help to focus on that.
Alan M. Freedman: --I--
Sandra Day O'Connor: Did you address, on behalf of Stumpf, some allegation that he has to be resentenced?
Alan M. Freedman: --That's correct, and that's what the Sixth Circuit--
Sandra Day O'Connor: Is that still before us?
Alan M. Freedman: --That... that is correct.
Sandra Day O'Connor: Or has that been subsumed somehow?
Alan M. Freedman: No. That's before you. In fact, there's a... there's a question of whether they even challenge that. But clearly, that the sentence by the Sixth... the sentence was challenged by the Sixth Circuit and found to be defective and a violation of due... of due process, and that's in the cert--
Antonin Scalia: I thought a State appellate court had effectively reweighed and effectively resentenced, saying that this additional evidence would, in our view, have made no difference. And we... we allow that to happen all the time. We speculate as to what the... what the sentencer would have done had an invalid factor not been there. I mean, when... when a... an aggravating factor is... is invalidated, the State supreme court can determine, you know, whether the same sentence of death would have been imposed even without that aggravating factor. Why is this any different?
Alan M. Freedman: --Well... well, I'd like to ask... answer that in two ways. First, the... we would submit that a reweighing isn't necessary. This is not like vacating an aggravating factor. This is determining a constitutional error of due process. But let's assume for the moment that reweighing is... is adequate. There was no reweighing, proper reweighing, in either the appellate court or the Ohio Supreme Court. The... the appellate court, which is the intermediate court in Ohio, came out and said both Wesley and Stumpf were principal slayers as if they were both shooters. And the whole opinion is hinged on the assumption that Mr. Stumpf pled guilty to being the shooter. If you... I mean, that's... we submit that's just a fair reading of the opinion. And also, if you go to their main opinion, which is the final opinion, which this Court reviews, the Ohio Supreme Court... they did the same circular reasoning. Ultimately they said he pled guilty. He was the shooter, and therefore, Eastman's testimony will have little weight as hearsay to... to vacate the death sentence. They never independently weighed the case saying, let's take Eastman as true, let's look at this case as an aider and abetter--
William H. Rehnquist: What is your best case, Mr. Freedman, for the idea that an inconsistency, such as you say was present here, is a violation of due process?
Alan M. Freedman: --The best case we cite in our brief is Green v. Georgia.
Antonin Scalia: Which one?
Alan M. Freedman: Green v. Georgia where they came in with inconsistent positions.
David H. Souter: Mr. Freedman, you've... you've argued just a second ago that both of the appellate courts decided the case or went through so-called reweighing on a false premise that he had pleaded guilty to being the shooter. Let me go back to the... to the two remaining members of the original trial panel. I take it they did not make that... in your judgment that error.
Alan M. Freedman: In all candor, I don't know. There's no finding. They simply said denied.
David H. Souter: Yes. Let me... let me ask you what your position would be if a hypothetical Justice Kennedy suggested earlier in the argument were true. What if the State had gone back at the... at the hearing before the original two in response to the motion to vacate and had said, we did argue in the Wesley case that he was the triggerman? The jury rejected that argument. They found that... that he was not. We've... we've learned from... from our own experience and... and we now no longer think that... that the evidence from the jailhouse informant should be accepted. We're back to the position that we took in the... at the Stumpf sentencing hearing originally, that... that he was the triggerman. If the State had taken that position, would you have a due process claim?
Alan M. Freedman: On... on this... on this record, we would have a due process claim for twofold. We submit that the... that the error is in the attempt not necessarily the success, and particularly in the--
David H. Souter: I'm... I'm not getting it. What do you mean?
Alan M. Freedman: --I mean... I mean, it's... it's that they honestly believed that Wesley... that in the Wesley trial, that Eastman testified truthfully. They believed that.
David H. Souter: Well, can't they... can't they profit from the jury's verdict?
Alan M. Freedman: Perhaps, but not in this particular case because what the jury weighed in Wesley was not only Eastman's testimony, they weighed the fact that Stumpf pled guilty, was found to be the principal offender, and was sentenced to death. That's a... I mean, that's going to lead to... I... I... maybe I'm off base here, but that's going to lead a jury to come out in a conclusion to find Wesley the aider and abetter and not--
John Paul Stevens: The jury simply decided they didn't want to sentence two people to death for the same offense.
Alan M. Freedman: --Right. I mean, they already had the principal offender. They already had somebody sentenced to death for it.
Stephen G. Breyer: Can I ask you a procedural question here? When I read the... the Ohio Supreme Court opinion, my impression of their due process part of it is that they found a violation because of the inconsistency between the Wesley trial and the Stumpf sentencing proceeding. When you started to talk to Justice Scalia, you agreed that couldn't be right. Rather, you said there is an inconsistency between what the prosecutor said at the Wesley trial and what the prosecutor said when Stumpf made his motion to vacate. Now, if that's so, I'm not sure that the Ohio Supreme Court or the lower courts have addressed that question to determine whether they really were inconsistent, and if so, what or why or what difference it made. But I haven't read the record thoroughly, and my impression might be wrong. So I'd appreciate your telling me what are the facts there.
Alan M. Freedman: They... they argued generally in... in the record, and it was... it was somewhat cryptic. They argued that it was unfair--
Stephen G. Breyer: All right. Who is they?
Alan M. Freedman: --I'm sorry. I apologize. The... the defense counsel.
Stephen G. Breyer: I'm not interested in what defense counsel did or did not say. I'm interested in what the Ohio courts did or did not say.
Alan M. Freedman: Thank you.
Stephen G. Breyer: And my point there is my... do I repeat it or do you have it?
Alan M. Freedman: I have it now, yes. The... the Ohio... the Ohio Supreme Court simply... simply used... simply used some sort of circular reasoning. They... they hung to the position that Stumpf was the shooter, and then after that--
Stephen G. Breyer: All right. Let's go to the circuit court of appeals. When I read the decision of the circuit court of appeals in the due... what... what am I reading, which is... this is in the Sixth Circuit Court of Appeals.
Alan M. Freedman: --Okay.
Stephen G. Breyer: They went on both grounds, first the confession... sorry... the guilty plea, and second, the inconsistency. Now, there I thought that the Sixth Circuit Court of Appeals was... now, I think I misspoke because I think that's where I see the problem.
Alan M. Freedman: Okay.
Stephen G. Breyer: You understand what the problem is or shall I--
Alan M. Freedman: Yes, I see it. You want to know somewhere in the Sixth Circuit opinion?
Stephen G. Breyer: --The Sixth Circuit seemed to be addressing the inconsistency between the sentencing proceeding of Stumpf and the Wesley trial. Well, you say the inconsistency we should focus upon is between the Wesley trial and the motion to vacate. And I think you're right about that because I can't imagine the other being a problem.
Alan M. Freedman: I... I... maybe I should clarify. I... I think that you have to compare the Wesley trial with the Stumpf trial.
Stephen G. Breyer: It's relevant in terms of evidence, but I think you're asking us to say that there is a due process violation because of the inconsistency between what the prosecutor said at the Wesley trial and what the prosecutor said when Stumpf made his motion to vacate. Am I right?
Alan M. Freedman: That's correct.
Stephen G. Breyer: All right. I'm asking you if the Sixth Circuit or the Ohio courts has addressed that question.
Alan M. Freedman: I'm uncertain. I... I think they did it in a generic fashion.
Stephen G. Breyer: So I read this. You can't point to anything in which they have addressed that question. My quick reading of it... I couldn't find anything in which they addressed that question. And if that's so, what should we do?
Alan M. Freedman: Well, as an... as an alternative, the Court could remand back to have the Sixth Circuit--
William H. Rehnquist: Did you raise that argument before the Sixth Circuit, the one that you're making now?
Alan M. Freedman: --With absolute certainty, Mr. Chief Justice, yes, because they asked the same questions. They asked where did the error occur, and that the line of the questionings were almost... on that point was identical. They asked questions where did the error come, and of course, it wasn't in the first trial. The error occurred at the motion to vacate.
Antonin Scalia: What if... what if Wesley comes in with a... with a motion to vacate now and... and he points to the inconsistency with the... with the Stumpf trial? Would he also be entitled to get his sentence vacated because of the same inconsistency that you're pointing out?
Alan M. Freedman: Well, he certainly wouldn't have the death sentence. That was... is solely as to the guilt part of the case, Justice Scalia?
Antonin Scalia: Yes.
Alan M. Freedman: He might. He might because the... the... I mean--
Antonin Scalia: So a jury, having found both of them guilty beyond a reasonable doubt and possibly on a basis that... or not a jury but the judges and possibly on a basis that has nothing to do with whether they were the shooter, you think both of them are entitled to have the death sentence vacated. I think that's extraordinary.
Alan M. Freedman: --Well, in all due respect, only one has the sentence--
Antonin Scalia: Which one? I mean, doesn't Wesley have just as much of a complaint as your client does?
Alan M. Freedman: --Not... not as to the death... not as to... not as to the death sentence, no.
Antonin Scalia: Why?
Alan M. Freedman: Why? One, he didn't... let's assume arguendo that he received the death sentence. He had an opportunity--
Sandra Day O'Connor: I thought Wesley didn't receive a death sentence.
Alan M. Freedman: --No, he did not. That's what... but you--
Antonin Scalia: No. That's... that's my mistake.
David H. Souter: Okay. He didn't receive the... the death penalty. What would his argument be with respect to guilt or innocence? It seems to me that the issue only goes to penalty.
Alan M. Freedman: --There's still an issue out there because this is killing a witness. As... he would have a tougher role. I don't think Wesley would... would have much of a chance. The... the version of Mr. Stumpf's facts, whether it's a difficult row to hoe is that he... he drops the gun. That was one of the... and... and shortly leaves the scene after that. So that he... there's no intent, notwithstanding Justice Scalia's position that you... attempt to shoot Mr. Stout, that he's automatically... the specific intent is inferred. But it's not absolutely clear, leaving the scene, that the intent could be inferred to kill another witness.
David H. Souter: But that's Stumpf's case.
Alan M. Freedman: Yes, that's correct.
David H. Souter: Yes. So I mean--
Alan M. Freedman: So I'm saying that he would not--
David H. Souter: --I don't see where Wesley--
Alan M. Freedman: --No, Wesley would not have... Wesley would not have that scenario under--
David H. Souter: --So... so Wesley would have neither a... a due process claim with respect to sentence nor with respect to guilt.
Alan M. Freedman: --That's correct. That's correct.
Ruth Bader Ginsburg: But now your... your part about the guilt, the Sixth Circuit agreed with you because it vacated not only the sentence, but the conviction. And what is your argument that the conviction is infirm?
Alan M. Freedman: And... and what they... they deduced from that is that the... the evidence of the Wesley trial... their position is that... and the position that... that the prosecutor took and the evidence that Eastman took, that there would be no specific intent as to the killing of... of Mary Jane Stout inferred from the shooting of Norman Stout because he dropped the gun. I mean, you don't... but there's no... in... in Ohio a plan is required. There's no foreseeability or reckless disregard for the death... for the eligibility for the death penalty. It's one of the few States.
David H. Souter: I... I thought the... the specific intent element would be satisfied if... if they, by plan, went to the scene with... with deadly weapons.
Alan M. Freedman: I believe under Ohio law that that's not correct. I mean, it's one of the few States. And I believe even the cases that are cited by the State would infer that.
Ruth Bader Ginsburg: I thought the State argued that knowledge... there's this plan, and they had a common design to rob. Is that right? And then the State said that common design plus knowledge that an inherently dangerous instrument would be employed to perpetuate the felony or that the felony and its manner of accomplishment would be reasonably likely to produce death. That's what the State argued was the law of Ohio.
Alan M. Freedman: But I... I believe that they needed a plan for... for the killing of a witness. They needed that plan at the time for killing the witness. It's not enough just to plan the robbery for the specific intent. And... and they... in the Wesley trial, I want to refer you to page--
Ruth Bader Ginsburg: Did... did any judge say that, any judge on the Sixth Circuit say that that was the Ohio law?
Alan M. Freedman: --I believe so. That's my reading of the Sixth Circuit opinion. They said that there was an element of... of intent that was... I believe that's the... the way I interpret the holding. I would like to refer you just to page 295 of the joint appendix, even the last sentence or so in the first paragraph. They imply that in the Wesley trial, talking about the same scenario, that there's not necessarily a plan coming in to kill the witnesses. There would have to be a plan while they're in the house. And... and the scenario of Mr. Stumpf dropping the gun I believe is arguably that there's no specific intent. I... I would just like to sum up and indicate that... that the State argued in both cases urging the death of two individuals based on killing the same person, and ultimately there was not adequate review in Mr. Stumpf's case indicating that he would have gotten the death penalty notwithstanding Eastman's testimony, notwithstanding their position that he would have gotten the death penalty as an aider and abetter, which is a rather rare circumstance not only in Ohio but also in this country.
William H. Rehnquist: Thank you, Mr. Freedman. Mr. Cole, you have 3 minutes remaining.
Douglas R. Cole: Justice Ginsburg, to respond to your question, under Ohio law you do not need to... to plan to kill the witness in order to have specific intent for aggravated murder. I would refer the Court to the In re Washington and State v. Scott cases that we cite in our brief that say that participation in an aggravated robbery where that's going to be done through force or violence or in a manner reasonably likely to result in death is sufficient to support a... an intent... a... an inference of specific intent. So there's... there's no need to find that they planned to kill the witnesses. If... if I heard Mr. Freedman correctly, he admitted that Wesley would not have a due process argument here because he said the fact finders were apprised of Mr. Stumpf's proceedings. Well, exactly the same is true in Mr. Stumpf's case. As soon as that testimony became available, as soon as Mr.... as the prosecutor had knowledge of Mr. Eastman's testimony, that testimony was then placed back in the record for further proceedings in the Stumpf matter. The prosecutor made arguments, but I don't think that the Due Process Clause requires--
David H. Souter: You... you mean at the hearing on the motion to vacate.
Douglas R. Cole: --Hearing on the motion to vacate and further appellate review. I don't think the Due Process Clause requires the State to admit the ultimate truth of everything that Mr. Eastman testified to at that other trial. The question was did they have a good faith basis for putting him on, and they did. And did they have a good faith basis then for arguing that notwithstanding what he said, that the conviction and the sentence in Mr. Stumpf's case were appropriate? And I believe the record supports that they did have a good faith basis for making that argument. If we look at the arguments they made, they were arguments in the nature of, look, there's this evidence in the record. You may believe it, you may not. Either way, Mr. Stumpf is correctly eligible for the death sentence under Ohio law and that sentence is appropriate. And the courts found, based on that argument, that Mr. Stumpf had appropriately been sentenced to death. This Court has noted that the principal function of habeas is to assure that no man has been incarcerated under a procedure which creates an impermissibly large risk that an innocent person will be convicted. Well, we don't have that risk here. Stumpf has knowingly and voluntarily pled guilty, removing any risk about that. And if we look to this sentencing hearing, there's no risk that he received an impermissibly large sentence because the prosecutor made the evidence available, and Stumpf's counsel used that evidence and argued it, and the court simply rejected it. If the Court has no further questions, I'll stop. Thank you.
William H. Rehnquist: Thank you, Mr. Cole. The case is submitted.