THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. ROBERT L. FAIR, Appellant.
No. 84731
Supreme Court of Illinois
September 28, 2000
193 Ill. 2d 256
Judgment affirmed.
Frederick F. Cohn, of Chicago, for appellant.
James E. Ryan, Attorney General, of Springfield, and Richard A. Devine, State‘s Attorney, of Chicago (William L. Browers, Assistant Attorney General, of Chicago, and Renee Goldfarb, Linda D. Woloshin and James E. Fitzger-
JUSTICE HEIPLE delivered the opinion of the court:
The petitioner, Robert Fair, appeals from a Cook County circuit court order dismissing his post-conviction petition without an evidentiary hearing. Because petitioner was sentenced to death, this court has jurisdiction over the instant appeal pursuant to Supreme Court Rule 651(a) (134 Ill. 2d R. 651(a)). For the following reasons, we now affirm in part and reverse in part.
BACKGROUND
A Cook County jury convicted petitioner of the murders of Candace Augustus and her 11-year-old son, Gregory. The same jury sentenced petitioner to death. This court affirmed petitioner‘s conviction and death sentence on direct appeal. People v. Fair, 159 Ill. 2d 51 (1994). The United States Supreme Court subsequently denied petitioner‘s petition for a writ of certiorari. Fair v. Illinois, 513 U.S. 1020, 130 L. Ed. 2d 500, 115 S. Ct. 586 (1994).
Following petitioner‘s conviction, it was discovered that Cook County circuit court Judge Paul Foxgrover, who presided over petitioner‘s trial and sentencing, had engaged in extensive criminal conduct while on the bench between April 13, 1989, and July 9, 1991, both before and after petitioner‘s trial and sentencing. Judge Foxgrover sentenced criminal defendants to probation with a fine and/or restitution as a condition of probation and then converted fine or restitution checks to his own personal use on at least 50 separate occasions during this time period. Judge Foxgrover ultimately pleaded guilty to multiple counts of theft, official misconduct, forgery, obstruction of justice for attempting to cover up his criminal conduct and perjury for making false statements on official forms. All told, Judge Foxgrover pleaded guilty to 159 separate crimes.
STANDARD OF REVIEW
At the motion to dismiss stage in post-conviction proceedings, all well-pleaded facts that are not positively rebutted by the trial record are to be taken as true. The inquiry into whether a post-conviction petition sufficiently alleges a substantial violation of petitioner‘s constitutional rights does not require the trial court to engage in any fact-finding or credibility determinations. People v. Coleman, 183 Ill. 2d 366, 385 (1998). As a result, there is little justification for giving deference to the trial court‘s conclusions as to the sufficiency of the allegations in the post-conviction petition. Coleman, 183 Ill. 2d at 388-89. The standard of review for a trial court‘s decision to dismiss post-conviction claims without conducting an evidentiary hearing, therefore, is de novo. Coleman, 183 Ill. 2d at 389.
ANALYSIS
I. Petitioner‘s Due Process Claim
Petitioner first argues that he does not have to establish a nexus between Judge Foxgrover‘s criminal conduct and his murder trial. According to petitioner, Judge Foxgrover‘s corruption was so pervasive that there is no basis for presuming that he was impartial at petitioner‘s trial. We disagree. In People v. Titone, 151 Ill. 2d 19 (1992), the petitioner filed a post-conviction petition alleging he was denied a fair trial before an impartial
Petitioner argues that we dispensed with the nexus requirement in People v. Hawkins, 181 Ill. 2d 41 (1998). Petitioner fundamentally misreads our opinion in Hawkins. Hawkins, like Titone, involved a post-conviction claim alleging Judge Maloney‘s corruption violated petitioners’ right to a fair trial and required the reversal of the petitioners’ murder convictions. Unlike this case, however, the petitioners presented evidence that Judge Maloney accepted a bribe at their murder
“A fair trial in a fair tribunal is a basic requirement of due process. Bracy v. Gramley, 520 U.S. 899, 905, 138 L. Ed. 2d 97, 104, 117 S. Ct. 1793, 1797 (1997); In re Murchison, 349 U.S. 133, 136, 99 L. Ed. 942, 946, 75 S. Ct. 623, 625 (1955). Fairness at trial requires not only the absence of actual bias but also the absence of the probability of bias. In re Murchison, 349 U.S. at 136, 99 L. Ed. at 946, 75 S. Ct. at 625. To this end, no person is permitted to judge cases in which he or she has an interest in the outcome. Bracy, 520 U.S. at 905, 138 L. Ed. 2d at 104, 117 S. Ct. at 1797; In re Murchison, 349 U.S. at 136, 99 L. Ed. at 946, 75 S. Ct. at 625. ‘Every procedure which would offer a possible temptation to the average man as a judge to forget the burden of proof required to convict the defendant, or which might lead him not to hold the balance nice, clear and true between the state and the accused denies the latter due process of law.’ Tumey v. Ohio, 273 U.S. 510, 532, 71 L. Ed. 749, 758, 47 S. Ct. 437, 444 (1927); see also Aetna Life Insurance Co. v. Lavoie, 475 U.S. 813, 822, 89 L. Ed. 2d 823, 833, 106 S. Ct. 1580, 1585 (1986); Ward v. Village of Monroeville, 409 U.S. 57, 60, 34 L. Ed. 2d 267, 270-71, 93 S. Ct. 80, 83 (1972).
Because our inquiry is limited to whether Maloney could have been tempted not to hold the balance between the parties ” ‘nice, clear and true‘“’ (Aetna Life Insurance Co., 475 U.S. at 822, 89 L. Ed. 2d at 833, 106 S. Ct. at 1585; Ward, 409 U.S. at 60, 34 L. Ed. 2d at 271, 93 S. Ct. at 83; Tumey, 273 U.S. at 532, 71 L. Ed. at 758, 47 S. Ct. at 444), defendants need not show actual bias by the trier of fact in order to be granted a new trial. As the United States Supreme Court stated in In re Murchison, 349 U.S. at 136, 99 L. Ed. at 946, 75 S. Ct. at 625, due process will sometimes ‘bar trial by judges who have no actual bias and would do their very best to weigh the scales of justice equally between the contending parties. But to perform its high function in the best way, “justice must satisfy the appearance of justice.“’ ” Hawkins, 181 Ill. 2d at 50-51.
This “appearance of justice” language in Hawkins did not, as petitioner suggests, eliminate the first prong
Petitioner argues in the alternative that he has established a nexus between Judge Foxgrover‘s criminal conduct and his trial. Because we have determined to grant petitioner relief on a subsidiary claim related to this argument, however, we express no opinion on the merits of the argument itself. Petitioner asserts that, if he must prove a nexus between Judge Foxgrover‘s corruption and petitioner‘s trial, the circuit court erred when it denied petitioner‘s request for discovery to uncover the full extent of Judge Foxgrover‘s corruption. We agree.
The circuit court denied petitioner‘s discovery motion which sought production of the following evidence
The discovery rules for neither civil nor criminal cases apply to proceedings under the Post-Conviction Hearing Act. People ex rel. Daley v. Fitzgerald, 123 Ill. 2d 175, 181-83 (1988). Nonetheless, the circuit court has inherent discretionary authority to order discovery in post-conviction proceedings. Daley, 123 Ill. 2d at 183. Circuit courts, however, must exercise this authority with caution because post-conviction proceedings afford only limited review of constitutional claims not presented at trial, and there is a potential for abuse of the discovery process in post-conviction proceedings. Daley, 123 Ill. 2d at 183. As a result, the circuit court should allow
In Bracy v. Gramley, 520 U.S. 899, 138 L. Ed. 2d 97, 117 S. Ct. 1793 (1997), the petitioner was tried, convicted and sentenced to death by Judge Maloney. After a federal investigation into judicial corruption in Chicago, Maloney was convicted of taking bribes from defendants in criminal cases around the time of the petitioner‘s trial. See United States v. Maloney, 71 F.3d 645 (7th Cir. 1995). Although Maloney did not take a bribe in the petitioner‘s case, petitioner alleged in a federal habeas corpus petition that Maloney had a personal interest in his conviction which violated petitioner‘s right to a fair trial guaranteed by the due process clause of the fourteenth amendment. According to petitioner, his conviction would deflect suspicion that Maloney was taking bribes in other murder cases. In support of a discovery request for the sealed transcript of Maloney‘s trial, access to the prosecution‘s materials in Maloney‘s criminal case, and the opportunity to depose persons associated with Maloney, petitioner presented evidence that his murder trial was sandwiched tightly between other murder trials in which Maloney accepted bribes. Petitioner also presented evidence that Maloney offered bribes to judges in cases while he was a practicing criminal defense attorney and that at least one of his colleagues in private practice actively assisted in these bribes. Petitioner‘s trial attorney was another former associate of Maloney from private practice whom Maloney appointed to represent petitioner. This attorney announced that he was ready for trial only a few weeks after he was appointed, and the attorney did not request additional time to prepare penalty phase evidence after the State announced its
The allegations in the post-conviction petition in this case lack the specificity of the allegations in Bracy. The petitioner in Bracy, however, had access to public sources of information regarding Judge Maloney‘s corruption, while public sources of information regarding Judge Foxgrover‘s corruption are unavailable to the petitioner in this case. Judge Maloney was convicted after a trial in federal court. Thus, the petitioner in Bracy had a wealth of information from the record of Judge Maloney‘s trial upon which to base his habeas corpus claim. Judge Foxgrover, however, pleaded guilty, thus depriving the petitioner in this case of a valuable public source of information regarding Judge Foxgrover‘s corruption. All of the evidence regarding Judge Foxgrover‘s criminal conduct remains in the exclusive control of the State. It would be virtually impossible for the petitioner in this case to establish a nexus between Judge Foxgrover‘s criminal conduct and petitioner‘s murder trial without access to the evidence possessed by the State.
The State argues that petitioner has not established good cause for his discovery request because nothing in the post-conviction petition suggests that a nexus exists. The State‘s argument, however, puts petitioner in an impossible dilemma. According to the State, petitioner is entitled to seek out evidence that there is a nexus be-
II. Petitioner‘s Ineffective Assistance of Counsel Claims
Petitioner next argues that his trial counsel was ineffective for failing to prevent Cameron Forbes, a supervisor at the Department of Corrections records office, from testifying at petitioner‘s sentencing hearing regarding petitioner‘s prison record. According to petitioner, the record of petitioner‘s rules violations in prison is unreliable and Forbes was not qualified to testify regarding conclusions about petitioner‘s character contained in prison reports.
The Post-Conviction Hearing Act cannot be used to obtain another hearing on a constitutional claim which has already been given full review by this court on direct appeal. People v. Emerson, 153 Ill. 2d 100, 106 (1992), quoting People v. Cox, 34 Ill. 2d 66, 67-68 (1966). Rulings on issues raised on direct appeal, therefore, are res judicata. Emerson, 153 Ill. 2d at 106, quoting People v. Ruiz, 132 Ill. 2d 1, 9 (1989). A post-conviction petitioner cannot avoid the bar of res judicata simply by rephrasing claims raised on direct appeal. Emerson, 153 Ill. 2d at 106.
Petitioner also argues that his trial counsel was ineffective for failing to correct the false impression created by the State at petitioner‘s sentencing hearing that petitioner is an older individual who manipulates youths to commit crimes. According to petitioner, the State argued at the sentencing hearing that petitioner was with “two juveniles” when he committed an armed robbery in 1966. Petitioner argues that his trial counsel should have pointed out that petitioner was only 18 years old at the time of the armed robbery and that the “two juveniles” were 17 years old, only one year younger than petitioner. The State responds that petitioner waived this claim because he could have raised it on direct appeal but failed to do so. We disagree. Petitioner did not waive this claim because he asserts in his post-conviction petition that his appellate counsel was ineffective for failing to raise the claim on direct appeal. This ineffective assistance of appellate counsel argument is a well-recognized exception to the waiver doctrine in post-conviction proceedings. See People v. Turner, 187 Ill. 2d 406, 413 (1999).
Petitioner‘s claim, however, fails on the merits. In order to show that his trial counsel was ineffective at his death sentence hearing, petitioner must prove that his counsel‘s representation was deficient and that there is a reasonable probability that, but for counsel‘s deficient conduct, the sentencer would have concluded that the
Petitioner next argues that the “other instances of ineffective assistance of counsel as asserted in the post-conviction petition are sufficient to require an evidentiary hearing.” Petitioner, however, provides no argument in support of this contention, nor does he provide any citations to relevant legal authority in support of these claims. As a result, these remaining ineffective assistance of counsel claims fail to satisfy the requirements of Supreme Court Rule 341(e)(7) (134 Ill. 2d R. 341(e)(7)) and are waived.2
Petitioner next argues that section 9-1(b)(7) of the death penalty statute, which provides that a defendant is eligible for the death penalty if “the murdered individual was under 12 years of age and the death resulted from exceptionally brutal or heinous behavior indicative of wanton cruelty” (
CONCLUSION
For the reasons stated above, the judgment of the circuit court of Cook County dismissing petitioner‘s post-conviction petition without an evidentiary hearing is affirmed in part and reversed in part. The circuit court‘s denial of petitioner‘s discovery request with respect to Judge Foxgrover‘s confession and any interviews of witnesses conducted during the course of the investigation into Judge Foxgrover‘s criminal conduct is reversed, and the circuit court is directed to enter an order that these materials be made available to petitioner. After petitioner has been provided with these items and has had an opportunity to use them in support of his claim of a nexus between Judge Foxgrover‘s criminal conduct and petitioner‘s case, the circuit court is directed to reconsider and enter a new ruling on petitioner‘s allegation that Judge Foxgrover‘s criminal conduct violated his due process right to a fair trial.
Judgment affirmed in part and reversed in part; cause remanded.
CHIEF JUSTICE HARRISON, specially concurring:
I agree with the result reached by the majority in this case. The circuit court should not have denied Fair‘s discovery request. Fair is entitled to find and present whatever evidence there may be to establish that Judge Foxgrover‘s criminal conduct had an effect on his impartiality at Fair‘s trial.
I write separately because I would go beyond the majority‘s holding and declare this state‘s death penalty law unconstitutional. For the reasons set forth in my partial concurrence and partial dissent in People v. Bull, 185 Ill. 2d 179 (1998), the law violates the eighth and fourteenth amendments to the United States Constitution (