Lead Opinion
A case combining two men scheduled to die at the hands of the State with the corrupt judge who sentenced them creates a toxic mix. And so it is with this case, which we resolve today while sitting en banc.
Thomas J. Maloney betrayed the posi-' tion of high public trust he held as an elected circuit judge in Cook County, Illinois. The perversion of his oath forced Maloney to exchange his judge’s robe for
There are two parts to today’s decision, and each commands a solid majority of the court. The lineup of judges, however, is different on each part. To help the reader, we note that the part of the judgment which rejects the claim that our two petitioners are entitled to a full new trial is joined by Chief Judge Flaum and Circuit Judges Posner, Coffey, Easterbrook, Man-ion, Kanne, ahd Evans. The part of the judgment holding that the defendants are entitled to receive a new hearing on whether the death penalty should be imposed — this time before an honest judge— is agreed to by Chief Judge Flaum and Circuit Judges Coffey, Ripple, Kanne, Rovner, Diane P. Wood, Evans, and Williams.
This case has a 20-year history, the first 13 in the Illinois state courts. We will not relate that extensive history here. What follows is only a brief summary.
William Bracy
Bracy and Collins then moved to federal court by filing separate habeas corpus petitions in the United States District Court for the Northern District of Illinois. Their petitions were consolidated, and in a 1994 decision the district court denied relief. United States ex rel. Collins v. Welborn,
The events giving rise to this case occurred some 21 years ago when a drug deal turned deadly. Three men, expecting
The chief witness against Bracy and Collins was Morris Nellum, who admittedly took part in the crimes. Nellum testified that Collins asked him to drive Collins’ Cadillac to Roosevelt Road and Clark Street because Collins wanted to be picked up there. Nellum then saw Collins, Bracy, and Hooper place three men in the back seat of an Oldsmobile; Collins drove away in that car. Bracy drove his own car and Nellum drove the Cadillac. When Nellum arrived at the viaduct, he heard shots. Immediately, he saw Bracy running to his automobile; he was carrying a sawed-off shotgun. Collins got into the car with Nellum. As they sped from the scene, Collins said, “That damn Hooper. I told him to wait until — I wanted to use the shotgun because they can’t trace the shotgun, but he used the gun instead.” Bracy gave Nellum $125 and told him to “Just be cool.” Nellum then drove, again with Collins, to Lake Michigan, where Collins threw two handguns into the lake — a .38-caliber Charter Arms revolver and a .357 revolver. The Charter Arms revolver was identified by Christina Nowell, who testified that Bracy previously had the opportunity to take the revolver from her. She also said that Bracy later told her “he had murdered some people with [her gun] and threw it into the Chicago River.” A gun, later discovered in the lake, was Nowell’s gun. At trial, in addition to Nellum, the State called a number of witnesses who provided enough pieces of the puzzle to convince the jury to convict Bracy and Collins and, in a separate proceeding, sentence them to death.
The court proceedings involving Bracy and Collins played out in a relatively routine manner until 1993, when Judge Malo-ney, who presided over their state court trial, was himself convicted of serious charges- — he was taking bribes from defendants in criminal cases during the time period of the Bracy-Collins trial. United States v. Maloney,
Exactly what Bracy and Collins must prove to prevail on this claim has twice divided a panel of our court and has at least peripherally engaged the attention of the Supreme Court. It continues to divide us, although there are principles on which we do not disagree.
The first area of agreement is that Ma-loney is not entitled to the usual presumption that ordinarily informs judicial bias cases — -a presumption that public officials have “properly discharged their official duties.” United States v. Chemical Foundation, Inc.,
Our opinions diverge over exactly what the Supreme Court meant when it said that Bracy and Collins must show “that Maloney was actually biased in petitioner’s own case.” The phrase encompasses two concepts. One is “actual bias,” apparently in contrast to the appearance of bias, which ordinarily supports a judicial bias claim. The second makes clear that the petitioners must connect the complained-of bias to their specific case. The former is somewhat of a surprising limitation on their claim; the latter less so. Also, we seem not to agree on what the petitioners’ evidentiary burden is and how they can meet it.
First, actual bias. In Turney v. Ohio,
Revisiting the Ohio statutes in Ward v. Village of Monroeville,
Even the absence of an indirect financial basis for a claim of bias was not enough to save the conviction in In Re Murchison,
Fairness of course requires an absence of actual bias in the trial of cases. But our system of law has always endeavored to prevent even the probability of unfairness. To this end no man can be a judge in his own case and no man is permitted to try cases where he has an interest in the outcome. That interest cannot be defined with precision. Circumstances and relationship must be considered. This Court has said, however, that “every procedure which would offer a possible temptation to the average man as a judge ... not to hold the balance nice, clear and true between the State and the accused, denies the latter due process of law.” [citing Turney]. Such a stringent rule may sometimes bar trial by judges who have no actual*411 bias and who would do their very best to weigh the scales of justice equally between contending parties. But to perform its high function in the best way “justice must satisfy the appearance of justice.” Offutt v. United States,348 U.S. 11 , 14,75 S.Ct. 11 ,99 L.Ed. 11 .
Id. at 136,
In Aetna Life Insurance Co. v. Lavoie,
The second concept — that the bias must be found “in petitioner’s own case” — is not surprising. In each of the cases we just discussed, the bias-or appearance of bias— appears in the very case the court is considering. That is not an unusual requirement. A habeas petitioner cannot show a due process violation in his own case because, for instance* the judge refused to suppress evidence in another case — or even that the particular judge hardly ever suppresses evidence at the request of the defense.
But the nature and extent of Maloney’s dereliction of duty casts this case in an unusual light and makes it hard to put Maloney in any normal framework. Not only is he not entitled to any presumption of fairness, but he is entitled to our derision. Not only did he find himself with the opportunity to show bias and unfairness, he was a criminal who, by his very presence on the bench, undermined the foundation of our system of justice. He was not a mayor presiding over an ordinance violation case and setting a fine, he was a racketeer sending men to the death chamber in the name of the State. It is hard to analyze what he did by looking at cases involving municipal fines or insurance claims. It is equally hard to understand why his judgment receives any level of protection.
Our only explanation is that the unique nature of this case may be why we need to look for actual bias. Maybe it is because the appearance of bias — or at least of criminality — is so obvious. It may be that we must be careful to tie our analysis to actual bias in the present case because Maloney was so obviously not concerned with justice in other cases. Whatever the reason, Bracy and Collins have the heavy burden of showing actual bias.
The issue, then, is the means by which they can meet their evidentiary burden. Clearly, they can use evidence extrinsic to the trial record in their case. After all, the appeal to the Supreme Court involved their right to take discovery. But that discovery, as Judge Rovner pointed out in her dissent in our panel decision after remand, produced no “smoking gun” or, as she also put it, no “hard proof’ of Malo-ney’s motives.
We see no reason why Bracy and Collins can show bias only by finding a smoking gun, which in this case apparently would be Maloney’s confession that he stacked the deck against them to take the heat off himself. Direct evidence of that sort is simply not available. But evidence short
Furthermore, this is a death penalty case. Like all others sentenced to death, Bracy and Collins are entitled to our painstaking review of their convictions and death sentences because, as the Supreme Court has often recognized, death is different. See Gardner v. Florida,
We have said that Maloney was a criminal, a racketeer, but these words do not convey just how serious his misbehavior was. First, we know he was convicted of racketeering, extortion, and obstruction of justice in gang-related murder cases. Maloney,
Other cases show that Maloney was capable of camouflaging his actions in some cases by compensating for it in others. He accepted a bribe of $10,000 to acquit two El Rukn gang members of a double murder, but he returned the money when he suspected (correctly) that the FBI was monitoring him. The Illinois Supreme Court granted these men a new trial because Maloney was motivated to convict them in order to deflect suspicion, a direct example of compensatory bias. The court said:
That Maloney subsequently returned the money did not render his interest in the outcome any less acute. As defendants suggest, he wanted to insure that he did not lose his judicial post and salary as a result of a criminal indictment, and therefore was motivated to return a verdict that would not spark the suspicions of authorities.
People v. Hawkins & Fields,
THOMAS MALONEY’s corruption began at the time he was a criminal defense attorney paying off judges and court personnel to fix cases — including a notorious murder case — and continued through the time he was a judge working as a mafia factotum in the Cook County Circuit Court system and taking all manner of bribes on very serious criminal cases. Thomas Maloney’s reputation as a strict prosecution oriented judge was no mistake. By casting this image, Maloney sought to deflect suspicion from his criminal activity, while simultaneously giving select desperate defendants who knew the right people an incentive to pay him off. Thus, by using his position as a felony trial court judge to extract bribes from defendants who face long periods of imprisonment or execution, THOMAS MALONEY far surpassed the category of corrupt jurist to chart a new territory of defilement.
... [W]hen he got his turn on the bench, THOMAS MALONEY imposed a sinister system which had the dual effect of concealing and promoting his corruption. THOMAS MALONEY the former champion of the defendant became one of the most ruthless judges on the bench. Showing defendants little mercy had the effect of diverting any conceivable suspicion from MALONEY while at the same time giving defendants a strong motivation to cough up big bribery dollars.
We think this statement, the official position of the Government of the United States, accurately sums up Maloney’s curriculum vitae.
All this provides a framework for the petitioners’ claim that, on occasion, Malo-ney engaged in compensatory bias. The task for Bracy and Collins is to connect his bias with their case and they must do it without being able to get inside Maloney’s head. Their need to rely on circumstantial evidence arises because Maloney was not going to provide the link through some sort of confession. During discovery in this case he not only failed to admit that he took any untoward actions in this case: As Judge Hart put it, he “vehemently and arrogantly denied all of the bribery charges clearly established by the jury findings and the evidence presented at his criminal trial.”
At his federal sentencing Maloney pointedly remembered Bracy and Collins. As he was insisting, in the face of all evidence, that he had been an honest judge with a distinguished career, he cited as a credit to his record both the case of Hawkins and Fields, where we know he engaged in compensatory bias, and the trial of Bracy and Collins as well. What can we infer from this? One could say nothing at all; any inference that Maloney was motivated by the desire to deflect suspicion from himself is simply conjecture. Yet we think, in the context of this case, it was certainly appropriate for the district judge to consider this reference an indication that compensatory bias might very well have been at work in the Bracy-Collins case.
And there is more. Consider Maloney’s appointment of Robert McDonnell as Bra-cy’s attorney. In 1981 Bracy’s original attorney was given permission to withdraw because Bracy ran out of money to pay him. Maloney appointed McDonnell to represent Bracy, and a short time later McDonnell announced that he was ready for trial.
Bracy alleged that McDonnell was appointed because he had been a partner of
Like Maloney, McDonnell was also considered an “outfit” lawyer. Not only that, but in 1966 McDonnell himself was convicted in federal court of conspiracy to distribute counterfeit money and was sentenced to 2 years in prison. In 1968 he was convicted of income tax evasion. When he was released from prison for that offense in 1972, he was disbarred. He was reinstated to the bar in 1980 and approached judges in criminal court for appointments. It was, as we said, in 1981 that he was appointed to represent Bracy. Later, in 1989, McDonnell was convicted of conspiracy to defraud the government and solicitation to influence the operation of an employee benefits plan. This time he was sentenced to 6 years, and in 1990 he withdrew his name from the Illinois roll of attorneys to save himself from disbarment.
What this reflects is that McDonnell did not have a highly developed ethical sense. It does not mean he did not have legal skills — though not enough, apparently, to escape detection himself. We think it’s fair to infer that if Maloney wanted a lawyer with questionable ethics, McDonnell was his man. Furthermore, in what could be construed as an attempt to deflect suspicion, after the Supreme Court decision in this case, Maloney, who was in prison, called McDonnell to obtain McDonnell’s signature on an affidavit which stated that it was actually Bracy who chose McDonnell as his attorney. McDonnell testified that he did not remember it that way.
So far we have a corrupt judge with mob connections, who attempts to cover his tracks, and is now a convicted felon. We have a defense lawyer, also with organized crime ties, who is also a convicted felon. Both are engaged in the trial of two men who are in serious danger of being sent to the death chamber. With that as the setting, we will now turn to the record to see whether there is any evidence from which to infer that Bracy’s and Collins’ due process rights at trial or during the death penalty hearing were violated in a manner that can best be explained by Maloney’s desire to appear tough.
Our analysis is informed by the principle that there is no harmless error analysis relevant to the issue of judicial bias. Edwards v. Balisok,
First, the guilt phase of the trial. The district court examined the discretionary rulings at the trial and found that there was no basis for concluding that the rulings were tainted by Maloney’s attempt to deflect attention from his corruption in other cases. The petitioners contended, for instance, that Neflum committed perju
The penalty phase of the trial is another matter. In Illinois, that phase is divided into two parts. First, the jury decides if a defendant is eligible for the death penalty. To be eligible, he must be at least 18 years old and the crime must have involved one of the factors set out in the statute. Once a defendant is found eligible for the death penalty, the focus shifts to factors in aggravation and mitigation. Unless mitigating factors are sufficient to preclude the imposition of the death sentence, the defendant shall be sentenced to death. 720 ILCS 5/9-1, formerly Ill. Stat. ch. 38, par. 9-1.
In evaluating Maloney’s rulings at the penalty phase of this proceeding, we are again mindful that death is indeed different. In a separate opinion in Spaziano v. Florida,
When the guilt phase was over and the penalty hearing about to begin, McDonnell objected to the use of the Arizona murders as aggravating factors because there had been, as yet, no conviction in Arizona. Maloney seemed at first to agree that the use of the testimony was questionable. He said:
It hasn’t been tried? On what authority are you going to introduce or attempt to introduce it here?
Later he said, “Just assuming here if that were the case and then he were to be acquitted there and you had used part of the same evidence. Then where would we stand here?” On this point, Collins’ attorney, Irvin Frazen, asked for a severance. He was concerned that the Arizona evidence against Bracy would spill over onto Collins. Ultimately, Maloney denied Collins’ severance motion and, without saying why, determined that the Arizona evidence would be admitted.
McDonnell then did the next best thing; he appropriately asked for a continuance so he could properly prepare for the explosive Arizona evidence. He complained that he had recently been provided 80 pages of information about the Arizona case. The government said only 3 pages of the 80 pages were relevant. Apparently the prosecutor’s assessment was allowed to prevail; again without giving a reason, Maloney decided that the death penalty hearing would proceed against both defendants: “We are not adjourning anything for a week or ten days. We are proceeding, as a matter of fact.”
The evidence of the Arizona murders was admitted and it was inflammatory. It was the story of a nasty home invasion resulting in the brutal murder of two people. The survivor of the attack was the wife of one of the victims and the daughter of the other. She identified Bracy as one of the attackers.
The Illinois Supreme Court found no error in the refusal to grant a continuance because Bracy was not prejudiced by the introduction of the evidence. That was true, the court said, because by the time of the appeal Bracy had, in fact, been convicted in Arizona:
If we were to find the denial of the continuance to have been improper and remand for a new sentencing hearing, the State would then introduce Bracy’s Arizona convictions into evidence, thus raising an even stronger inference that Bracy committed the Arizona crimes.
Later, McDonnell again objected to the Arizona evidence, saying that it had come to his attention that there was a 1980 case presumably supporting his position that the evidence was inadmissible “although I do not have the citation.” When asked if he had a case on point, McDonnell said, “McDonnell
Finally, mitigation. No evidence in' mitigation was presented as to Bracy and little was offered as to Collins. Yet evidence in mitigation is crucially important in death penalty litigation. In Lockett v. Ohio,
Maloney was sublimely unconcerned about a lack of evidence in mitigation, as unconcerned as he was about McDonnell’s lack of preparation for meeting the Arizona evidence. In fact, Maloney even tried to discourage McDonnell from making a closing argument at the death penalty hearing.
MR. McDONALD [SIC]: Wait a moment, judge.
THE COURT: What do you want?
MR. McDONALD: I want to argue.
THE COURT: You do?
MR. McDONALD: Certainly.
Maloney then called for a side-bar conference:
THE COURT: You don’t have to argue in this case.
MR. McDONALD: I want to argue.
MR. FRAZIN: Arguments are part of it.
THE COURT: They can be but they don’t have to be.
Ultimately, arguments were allowed.
McDonnell seemed to do the right thing in insisting on argument. But given his inability to counter the Arizona evidence because of Maloney’s denial of the continuance, he had nothing to say about the State’s evidence in aggravation. With no evidence in mitigation, he had nothing to talk about on that score as well. So it should come as no surprise that his “argument” was simply a tirade against the death penalty:
This is a human being and we don’t have the right to take another person’s life. Only God can do that. God gave us this life and only God can take it away, and I don’t care, none of us have the right to take a fellow human being’s life, not Bracy, not his Honor, not the prosecutor, and not you people.
I’ve heard that before. People in 1941 through 1945 killed in the name of their country [at which time an objection was overruled] in service to their country. Some of us went to Viet Nam and had to kill for this country, and I will be damned if anybody is going to tell me that what we did in Viet Nam or in any other war was a violation of the Fifth Commandment of the Bible.
Later, the prosecutor referred to McDonnell’s argument as “a slap in every veteran’s face.”
The prosecutor also alluded to the chance that Bracy and Collins might “escape from Stateville” again if they were given another chance: “Should we give them another chance; lock them up and give them a chance to escape and kill someone else?”
The Illinois Supreme Court noted that the prosecution’s remarks were a “bit dramatic” but rejected the claim that they constituted reversible error because, the court said, “there is no question that they [the prosecutor’s remarks] were invited.” We agree. The remarks were invited. McDonnell’s argument was so objectionable that it is hard to see how he or Malo-ney could not have known what type of response the prosecution was going to make to it. It is pushing credibility to imagine that an experienced trial judge (for Maloney was experienced, if not honest) did not see this scene unfolding. The prosecutor repeatedly called Maloney’s attention to the objectionable nature of McDonnell’s argument. Yet Maloney did nothing. Imposition of the death penalty was a foregone conclusion in this case.
Had the prosecutor’s comments not been invited, it seems likely that the courts of Illinois might very well have ordered a new death penalty hearing for Bracy and Collins a decade ago. In Murray Hooper’s first appeal, the Illinois Supreme Court vacated his death sentence. Hooper, as we have said, was charged along with Bra-cy and Collins with the murders in the present case. In Hooper’s case the prosecutor speculated that if he were placed in prison for life, Hooper might very well kill a guard or a chaplain. Relying on cases where it found a reference to parole and to the possibility of committing more murders improper and prejudicial [People v. Walker,
What possible" motive could Maloney have had to allow such gross impropriety at this hearing? We feel compelled not to shirk from seeing the strong inference, given what we now know about Maloney, that he deliberately let this death penalty hearing become a debacle because imposition of the death penalty on these two men would bolster his reputation as a tough judge. We must do no less than Judge Strayhorn who, while recognizing the ex
In our case, it is a fair, if not inevitable, inference that Maloney used the death penalty hearing to deflect suspicion that might be aroused because of, say, his acquittal of another accused murderer who had bribed him. Without a confession from Maloney, we never will know for sure. But absolute certainty is not required. The burden we place on petitioners never is absolute. Defendants — especially defendants facing death — have a right under the Due Process Clause to a “fair trial in a fair tribunal.” Withrow v. Larkin,
Notes
. As noted in prior court decisions in this case, "Bracy” is sometimes spelled "Bracey.” We have used the “Bracy” spelling and have changed the spelling in other cases we cite to conform to ours.
. The court reporter often referred to McDonnell as McDonald and actually did so here, typing the statement as "McDonald on common sense.”
Dissenting Opinion
with whom
EASTERBROOK and MANION, Circuit Judges, join, concurring and dissenting.
I agree that the convictions should stand (though my reasoning differs from Judge Evans’s), but not that the death sentences should be reversed. Judge Maloney, whose alleged bias is the only issue in this appeal, presided over both phases of the case. There is no basis for supposing him unbiased until the defendants were convicted, then biased at the sentencing hearing. Such a supposition offends common sense. What must be driving the outcome of the appeal is a sense of discomfort with Maloney’s antics that is too great to contemplate executions without acute distress but not too great to contemplate life sentences. That is the only meaning I can assign to Judge Evans’s reference to a “toxic mix.” For Bracy and Collins have failed to show that they were denied due process of law either at trial or in sentencing. To reverse their sentences is merely to compound Maloney’s wrongdoing. To reverse while upholding the convictions is an unprincipled splitting of the difference, rather than legal justice. It is the sort of thing an arbitrator might do or a mediator propose. It would be understandable as a settlement; it is indefensible as a judgment.
Bracy and Collins were convicted in 1981 by a jury in an Illinois state court of three gangster-style murders committed the previous year, and were sentenced to death by the jury. We affirmed the denial of federal habeas corpus relief in Bracy v. Gramley,
Maloney had been convicted in a federal court in 1993 of various offenses relating to his having taken bribes from criminal defendants during a period that included the year of the petitioners’ trial. See United States v. Maloney,
The Supreme Court held that “if it could be proved, such compensatory, camouflaging bias on Maloney’s part in petitioner’s own ease would violate the Due Process Clause of the Fourteenth Amendment.”
Twice the Supreme Court said that to provide a basis for relief for Bracy (and hence for Collins) compensatory bias must be shown “in petitioner’s own case.” This means that even if Maloney engaged in compensatory bias in some cases, this would not be enough to justify a conclusion that Bracy and Collins had been convicted and sentenced in violation of due process; they would have to prove that Maloney
Sometimes the temptation to bias is so great that proof of bias is not required. This is true when the judge has a substantial pecuniary stake in the outcome of the case or when he is bribed by one of the parties. See, e.g., Aetna Life Ins. Co. v. Lavoie,
If the mere possibility of compensatory bias were enough to establish actual bias, all decisions by a judge who accepted bribes would be invalidated — in the case of Judge Maloney, literally thousands. That is another distinction between compensatory bias and a financial stake (or family relationship). A financial stake is case specific. The temptation it offers the judge is limited to the case in which he has a stake. His other cases are unaffected. But the theory of compensatory bias implies that all the judge’s decisions in criminal cases are fatally contaminated — the cases in which he was bribed, of course, but also the cases in which he was not bribed; and so — all his cases. The Supreme Court did not adopt and would not countenance a rule that compensatory bias can be presumed from the fact that a judge has accepted bribes in some cases. Judge Rovner’s opinion in the present round disregards the Supreme Court’s mandate. She repeats the position she took in the original appeal — the position the Court disapproved — that all of Malo-ney’s convictions (and presumably those of any other bribe-taking judge) must be set aside and that case-specific evidence of compensatory bias is always unnecessary, and indeed irrelevant. The Court made unmistakably clear that compensatory bias
That could not be inferred, however, from the fact that Maloney took bribes or even from the fact, if it was a fact, that he practiced compensatory bias, for he may not have done so in every case. We do not know whether he practiced it in any case; and he would have been unlikely to practice it in every case. If he thought that a defendant was certain to be convicted and receive a severe sentence, he would have no incentive to lean in favor of the prosecution and by doing so jeopardize the conviction or sentence by making it more vulnerable to reversal on appeal. In general a corrupt criminal judge has no need to lean against criminal defendants who have not bribed him, because most criminal defendants are guilty and will be convicted anyway.
The discovery ordered by the Supreme Court drew a blank. Much of it consisted of a wild goose chase after McDonnell’s relationship to Maloney. The chase did uncover ugly evidence of criminality and mob ties of both McDonnell and Maloney, but nothing that bore on the issue of compensatory bias — except to dispel the suspicion that Maloney had appointed McDonnell to make sure that Bracy would be convicted, or that McDonnell had tried to throw the case in order to curry favor with Maloney. The judge found that McDonnell had never practiced law with Maloney and had pulled no punches in his defense of Bracy. This finding is not clearly erroneous, and so it binds this court and wipes out the theory of bias that was the focus of the Supreme Court’s discussion of the need for discovery.
It is true that during his allocution before being sentenced Maloney had spoken of the convictions and sentences of Bracy and Collins as “a credit to his record as a judge and evidence that he was not corrupt,”
•during the same time petitioners’ case was pending, other cases were pending in which Maloney took bribes, particularly the close in time Chow and Rosario cases. Before and after this time, Malo-ney was engaged in a pattern of receiving money. Based on the evidence in the record, it is a possible and reasonable inference in this case that Thomas Maloney was motivated, at least in part, to maintain a prosecution-oriented attitude and to make pro-prosecution rulings by a desire to deflect suspicion from cases in which he accepted bribes. Other documented instances of Maloney so acting to deflect suspicion from his cor-*423 nipt conduct are reported in the Hawkins and Titone cases.
This is naked conjecture, however, and so cannot be the basis of a valid factfinding. Libman Co. v. Vining Industries, Inc.,
The district judge based his conclusion about Maloney’s motivation largely on the “Government’s Official Version of the Offense” submitted in Maloney’s criminal trial. This document, which the parties refer to as the sentencing recommendation or sentencing memorandum, is also the cornerstone of the appeal. In it the Justice Department accused Maloney (whom it called “degenerate” and “a mafia factotum”) of practicing compensatory bias. The document consists, however, of 57 single-spaced pages, and the allegation of compensatory bias appears on just one of them. It is colorful (“THOMAS MALO-NEY far surpassed the category of corrupt jurist to chart a new territory of defilement”), vivid, even plausible. But no substantiation or elaboration is offered. No cases in which Maloney may have engaged in compensatory bias are cited; no evidence, direct or circumstantial, admissible or inadmissible, that he ever engaged in the practice is offered. The Justice Department was pressing for a very long sentence (more than 20 years), and it pulled out all the stops.
Despite this “evidence” of compensatory bias, the district judge concluded that “the evidence does not establish that an interest in covering up wrongdoing or motivating larger bribe payments pervaded every action taken by Maloney as a judge. Malo-ney’s bribe taking has not been shown to have been so pervasive a part of his judicial practices that it can be assumed he was always, or even usually, motivated by his pecuniary and/or penal interests when exhibiting his prosecution-oriented tendencies.” Id. at 909 (emphasis added). This is an important finding, which not being clearly erroneous binds us. It requires (as the Supreme Court had already made
In the light of this finding, the district judge as he was required to do examined Maloney’s rulings at the trial of Bracy and Collins and found none at the guilt phase of the trial that displayed bias. He concluded that the convictions were untainted. The conclusion is correct. For all that appears, Maloney was a prosecution minded judge for reasons unrelated to his taking bribes. That he would accept bribes to acquit criminals does not imply any affection for criminal defendants or their lawyers such that he must have been acting against character when he ruled in favor of the prosecution in cases in which he was not bribed. His conduct was appalling, his character depraved, but the bridge to the trial of Bracy and Collins is missing.
However, turning to Maloney’s rulings at the sentencing phase of the trial, the district judge found the taint of compensatory bias. The only ruling (or pair of rulings) he mentioned was Maloney’s refusal to sever Collins’s sentencing hearing from Bracy’s and hold it first in order to give Bracy’s lawyer more time to prepare for his client’s hearing. The ruling is said to have harmed Collins because it meant that the jury would hear evidence about additional murders that Bracy had committed in Arizona, murders in which Collins had not been implicated. (Bracy had not yet been convicted of the Arizona murders; later he was, and he was sentenced to death; that sentence is pending.)
Collins had not raised the issue of severance in his state-court appeal, and as a result it was treated as forfeited in the federal habeas corpus proceeding. It is not surprising that he didn’t raise the issue, because it is very difficult to see how he would have been harmed, rather than helped, by evidence that Bracy was a worse murderer than he. And so it is difficult to see how the ruling could be thought evidence of bias. But all this to one side, there is no basis for upholding Bracy’s and Collins’s convictions but setting aside their sentences. The incentive to engage in compensatory bias is stronger at the trial of guilt than at the sentencing hearing. Most criminal defendants are convicted, so a judge who wants a reputation as a tough sentencer, either to induce bribes or to avoid charges of undue lenity, will have an incentive to make rulings favorable to the prosecution, so that the defendant will not walk. Had these triple-murdering defendants been acquitted, eyebrows might have been raised. But the imposition of the death sentence is a matter of grace to be determined by the jury. Maloney would not have been “blamed” if the jury had exercised its unreviewable power of lenity and declined to recommend sentencing Bracy and Collins to death. For all we know, that is a common sequel to the conviction of defendants in capital eases in Illinois.
The only thing on which Judge Evans can hang the distinction between the sentencing phase and the guilt phase of the trial, moreover — the refusal to try Bracy and Collins separately — was before the Supreme Court when in remanding the case to us it made clear that Bracy and Collins could prevail only if discovery disclosed evidence of compensatory bias. It did not.
There is a lot of “death is different” talk in Judge Evans’s opinion. Maybe he wishes to suggest that compensatory bias has a different meaning in capital-sentencing than in other proceedings. That’s a position Bracy’s own lawyer rejected at the en banc argument. He was emphatic that compensatory bias if proved would
The capital nature of this case is relevant only in the following very limited sense: a judge conceivably might be biased in one stage of a case but not all stages, so if there are severable stages, such as the guilt and sentencing phases of a capital case, bias at the last stage might not spill back into the earliest stage. If anything, as I have pointed out, Judge Maloney was more likely to be biased against defendants at the guilt stage of the proceeding than at the sentencing phase. There is nothing to suggest that he was indifferent to whether they were convicted but determined if they were convicted to see that they were executed. Nothing in the theory of compensatory bias or in the psychology of Maloney supports such a conjecture. Critically, there is no evidence to support it.
No evidence, but plenty of rhetoric. Judge Evans states: “It is more than a fair inference that increasing the likelihood of the imposition of the death penalty would be fine with Judge Maloney.” And: “Less concern about the fate of the defendants ... could hardly be imagined.” And: “Maloney was sublimely unconcerned about a lack of evidence in mitigation.” And: “It is pushing credibility to imagine that an experienced trial judge ... did not see this scene unfolding.” And: “Maloney [was] deliberately indifferent to the petitioners’ fates.” From this it is inferred that Maloney “deliberately let this death penalty hearing become a debacle because imposition of the death penalty on these two men would bolster his reputation as a tough judge.” But the judge does not impose the death penalty; the jury does. And of course Maloney might have wanted a reputation as a tough judge for reasons unrelated to compensatory bias. And he might not have been seeking a reputation as a tough judge — he may just have been disgusted by these defendants’ crimes, or he may have been a bad judge, or he may have thought capital punishment the right punishment for murderers, or he have been proprosecution on general principles, or all these things may have been true. In failing to canvass these possibilities, Judge Evans’s opinion reveals a lack of imagination. Furthermore, Maloney’s rulings at the guilt phase of the trial also consistently favored the prosecution, as Judge Evans’s opinion fails to make clear; it is no surprise that Malo-ney’s rulings at the sentencing hearing favored the prosecution as well. If Malo-ney was not biased in presiding at the guilt phase of the trial despite his consistent leaning in favor of the prosecution, how as a matter of logic and common sense can we have any confidence that he suddenly, inexplicably — indeed irrationally — became biased at the penalty phase?
The language that I have quoted from Judge Evans’s opinion really points in a different direction — toward a conclusion that Maloney created an “appearance of impropriety,” concretely that he gave the appearance of being determined to do in Bracy and Collins. Not only need such a determination have nothing to do with compensatory bias, but in an earlier en banc opinion of this court that Judge Evans’s opinion neglects to discuss we held
The judgment of the district court should be affirmed insofar as it upheld the convictions but it should be reversed insofar as it invalidated the sentences.
Dissenting Opinion
with whom RIPPLE, DIANE P. WOOD, and WILLIAMS, Circuit Judges, join, concurring in part and dissenting in part.
This case demands that we give concrete meaning to a cornerstone of our justice system-an impartial judiciary. The right to a fair and unbiased judge is undisputed. Bracy v. Gramley,
Any inquiry into what motivates a judge to rule is perilous. Our concept of justice depends on the notion of an impartial judiciary, and yet we know that true impartiality in a judge is no more than an aspiration. Judges are human beings, and so they can never completely transcend the limits of their own experiences and perspectives. In the usual case, then, we abstain from looking behind a judge’s rulings, content to treat his oath of office as sufficient proof that he acted free from bias. “As Blackstone put it, ‘the law will not suppose a possibility of bias or favour in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea.’ ” Aetna Life Ins. Co. v. Lavoie,
Ironically, the fact that Maloney was a corrupt judge makes it harder rather than easier for us to decide whether he was an impartial decisionmaker in the petitioners’ case. The evidence has not given us a direct look into Maloney’s mind, so we have no way of knowing for certain whether Maloney acted from a position of bias or impartiality when he presided over the trial of Bracy and Collins. We must instead look to his rulings at trial, and to the circumstances surrounding his bribe-taking, for clues as to his motives and disposition. And the absence of evidence that can definitively confirm or dispel the possibility of bias presents us with a choice between two unappealing courses of action. We can infer from the circumstances that Judge Maloney’s corruption rendered him partial and vacate the petitioners’ convictions, a step that will necessitate a retrial many years after they were convicted. To Judge Posner’s way of thinking, this sim
I submit that the question would be much easier to answer if we were asked to decide it ex ante. Suppose for a moment that a district judge within our jurisdiction announced on his first day of service that he was sworn to be impartial and that he would give the parties a fair trial unless the defendant wished to bribe him, in which case he would give the defense a leg up. That is essentially how Judge Posner postulates that Maloney operated — that he gave the parties a fair trial unless bribed to do otherwise; it is just that Maloney did not announce his bribe-taking to the world. But imagine for a moment that our hypothetical judge did. If a defendant unwilling to tender a bribe — or for that matter the prosecutor — sought mandamus complaining that, in view of the announcement, the judge did not constitute an impartial decisionmaker, I very much doubt that we would deny the request with an admonition that so long as no bribe was tendered, the parties had nothing to worry about. The judge’s removal from the case and from the bench would be swift and certain.
Our inquiry in this case is burdened by the fact that Judge Maloney’s bribe-taking was not exposed until after he had been a trial judge for many years. The question really is no different than the one we would have to answer in my hypothetical, but the ramifications are more weighty. Maloney presided over the disposition of thousands of cases, and recognizing his lack of impartiality in one ease presents the prospect that all of the cases he handled must be vacated. Indeed, that uncomfortable prospect is the one and only justification that has been offered over the long history of this litigation for concluding that a thoroughly corrupt judge amounts to a constitutionally acceptable decision-maker. We acknowledge that Maloney’s conduct was appalling, that his crimes showed contempt for his office, but we say nothing about why, doctrinally, a judicial racketeer should be considered a fair and impartial decisionmaker.
In most cases, of course, we may simply presume that the trial judge was impartial. E.g., Schweiker v. McClure,
Before we proceed further, however, we must ask who bears the burden of establishing Maloney’s impartiality or lack thereof, given that the presumption of impartiality has already been rebutted. Both Judge Evans and Judge Posner assume that it is the petitioners’ burden to show bias. See ante at 411, 420-21. Given the fundamental nature of the constitutional right in question and the gravity of Malo-ney’s misconduct, however, I wonder if that is right. Judicial bias is among the kind of structural errors which implicate
Our opinion in Harbin recognizes a category of trial errors that occupy a middle ground between the usual kinds of errors, which are subject to harmless-error review, and structural errors, which are conclusively presumed to be prejudicial and therefore result in automatic reversal.
I submit that the corruption of the trial judge falls into this category of errors. Maloney’s willingness to repudiate the oath of impartiality by repeatedly accepting bribes calls into question his ability to be fair in any case. See ante at 411. If he was inclined to help the State when not bribed — whether to camouflage his corruption or to promote future bribes — the potential prejudice to a defendant who did not bribe him is obvious. Yet as this case makes altogether clear, proving the manifestation of that bias is extremely difficult. To assign the burden of proof to the petitioners may therefore be unrealistic and improper. Maloney was the State’s representative. See ante at 411. His bribetak-ing was wholly beyond the petitioners’ knowledge and control. If the State, in the face of evidence establishing that Ma-loney’s corruption knew no bounds, wishes to defend the validity of the convictions over which he presided, then the burden arguably should fall upon it to affirmatively establish that Maloney was a fair and impartial judge when not bribed.
Proceeding from the premise that a judge’s bias may be shown indirectly, ante at 411-12, Judge Evans locates some facts which raise the possibility that Maloney engaged in compensatory, camouflaging bias in this case: Maloney’s appointment of McDonnell, a two-time felon and “outfit” lawyer, to represent Bracy; his citation of the convictions of Bracy and Collins (along with those of Hawkins and Fields) at his own sentencing as purported proof that he was an honest judge; and Maloney’s unsuccessful effort to secure an affidavit from McDonnell asserting that it was Bra-cy, not Maloney, who chose McDonnell. Ante at 413-14. Collectively, these facts suggest that Maloney may have been looking at the Bracy-Collins prosecution as an opportunity to hide his bribe-taking, if not to cultivate additional bribes. Although Judge Evans detects no sign that such a compensatory bias was at work during the guilt/innocence phase of the trial, several circumstances suggest to him that Malo-ney may indeed have abandoned his “solemn responsibility” to assure the fairness of the penalty phase. Ante at 415. These include the summary denials of Bracy’s motion to exclude evidence regarding the Arizona murders, Collins’ alternative motion for a severance, and Bracy’s alternative motion for a continuance; Maloney’s efforts to actively discourage McDonnell from making a closing argument at the penalty hearing; and his failure to stop McDonnell (even in the face of the State’s objections) from engaging in a tirade against the death penalty, a tirade which invited the prosecution to make an argument that might have constituted reversible error had the defense not invited it. Ante at 416-19.
By contrast, Judge Posner’s analysis proceeds from the premise that a judge’s compensatory bias must be established directly, rather than inferentially. See ante at 421-22. He postulates that a case-specific bias could be shown in the same manner that it was in Cartalino,
In my view, Judge Evans and Judge Posner are both right — in part. Ultimately, however, both of my colleagues attempt to cabin the effects of Maloney’s wrongdoing in ways that are inconsistent with the nature and extent of his corruption and the signs of compensatory bias that the evidence supplies us.
Judge Evans’ analysis displays a pragmatic appreciation for the nature of Malo-ney’s wrongdoing. Although the point may seem obvious, one cannot conduct a proper search for compensatory bias without having in mind the basic nature of Maloney’s criminal conduct. Maloney did not simply experience a momentary ethical lapse, or commit a crime unrelated to the job of judging. He used his position as a judge to reap (apparently) hundreds of thousands of dollars in bribes. Among the uncomfortably large group of judges convicted of bribe-taking in Cook County, he holds the distinction of being the only one in the United States proven to have accepted bribes in murder cases. See Retired Judge Sentenced, National Law Journal, Aug. 1, 1994, at A8. The utter contempt that his pattern of crimes shows for the duties of his office, and in particular for the concept of judicial impartiality, wholly eliminates any presumption that he was a fair and decent judge when not pocketing money. See Bracy,
By contrast, Judge Posner’s analysis treats a judge’s corruption as but a variant of stock ownership: So long as a judge did not acquire a concrete interest in the acquittal or conviction of the defendant by pocketing a bribe, there is no reason to think that his judgment was tainted. Instead, the petitioners must supply us with a reason to doubt the judge’s impartiality. E.g., Cartalino,
With the presumption of impartiality having been removed from the case, Judge Evans is correct to recognize that Malo-ney’s bias may be established indirectly. See ante at 412. The evidence available to Bracy and Collins simply does not afford them or us a glimpse into Maloney’s mind.
By insisting upon direct proof of bias, Judge Posner would deny relief whenever the parties lack an unobstructed view into the corrupt judge’s mind — even if the evidence otherwise suggests that bias may, in fact, have been present. The proof of bias that he demands is proof that in virtually all cases must come from the corrupt judge himself. The judge must either (1) confess to the bias under oath, (2) admit the bias at some point to a co-conspirator, who later proves willing to repeat the admission under oath,
I therefore agree with Judge Evans that the search for proof of compensatory bias must include indirect, as well as direct, signs of such bias, and that the record in this case supplies us with adequate signs that such bias was at work during the capital phase of Bracy’s and Collins’ trial. His analysis appropriately recognizes that a corrupt judge may subvert the trial process not simply by offering affirmative assistance to one party or the other, but also by failing to preserve the balance between the litigants and to ensure that a criminal defendant’s rights are not neglected. See ante at 415-19. He is also correct to point out that the lack of a neutral arbiter arguably poses the greatest threat to the defendant’s rights at the penalty phase of a capital trial, when the inquiry turns from the relatively straightforward determination of whether or not the defendant committed a crime to the question of whether or not he should die for that crime, a profound determination that turns on a largely subjective assessment of his entire criminal history, the psycho-social context of that history, the effects his crimes have had upon others, his prospects for reform and redemption, and so forth. See id. at 415. Against that backdrop, I believe Judge Evans rightly concludes, as did Judge Hart, that bias may be inferred from Judge Maloney’s handling of the pen
But I think that Judge Posner is right to question the plausibility of inferring that Maloney was biased as to the capital phase of the trial but not the guilt/innocence phase. As Judge Posner points out, Judge Maloney’s rulings at the guilt phase of the trial consistently favored the prosecution, just as they did at the penalty phase. Ante at 425. I would add that a number of the rulings at the guilt phase had significant effects on the course of the trial. Not the least among these rulings was Malo-ney’s decision (which he later sought to pin on Bracy, see ante at 414) to appoint McDonnell as Bracy’s lawyer. Few decisions are more important than the choice of one’s trial counsel. However poor an attorney’s skills, level of preparedness, and tactical decisions appear to be in retrospect, the range of representation deemed constitutionally adequate is wide. Strickland v. Washington,
Indeed, the extent of a judge’s discretion, and the cloak that discretion provides for a judge’s bias, are matters that Judges Posner and Evans both underestimate. Neither finds a reason to question any of Judge Maloney’s rulings at the guilt/innocence phase of the trial, and although Judge Evans questions a number of Malo-ney’s rulings at the penalty phase, Judge Posner finds even those rulings perfectly defensible. But discretionary rulings are an unreliable barometer for the bias of the trial judge. Such rulings can rarely be labeled “correct” or “incorrect” in the sense that there is only one proper ruling in a particular set of circumstances. The very concept of discretion assumes that any number of answers to a question are possible, and that the answer is best left to the assessment of the judge. Abuse of discretion typically is found not when the judge fails to render the “right” ruling, but when he or she applies the wrong legal standard, ignores crucial facts, or rests his ruling on irrelevant or inappropriate factors. E.g., Ty, Inc. v. Jones Group, Inc.,
The inherent difficulty of piercing a judge’s exercise of discretion is what has led me to conclude that the temptation-to-bias framework is a superior means of analyzing the petitioners’ claim. Cases such as Tumey v. Ohio,
[T]he requirement of due process of law in judicial procedure is not satisfied by the argument that men of the highest honor and the greatest self-sacrifice could carry it on without danger of injustice. 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.
Ibid, (emphasis supplied); see also Aetna Life,
Of course, Judge Posner remains skeptical that Maloney had any incentive to lean in favor of the State. See ante at 420-21. Again he suggests that a corrupt judge might be just as likely to hide his bribe-taking by cultivating a pro-defendant reputation, so that an acquittal or other ruling paid for by the defense looks less suspect. Ante at 421. We know, however, that Maloney did not adopt a consistent defense leaning in order to camouflage his corruption — Maloney long had a reputation for being a tough, State-oriented judge. Yet, we also know that Maloney was quite concerned about exposure, and was willing to take even precipitous steps to hide his bribe-taking. Thus, he returned the $10,000 bribe he had been given to acquit Hawkins and Fields and then convicted them; and in Titone, he went so far as to keep the $10,000 bribe but convicted the defendant anyway. Judge Posner insists that “[njeither case had anything to do with compensatory bias,” ante at 423, but this ignores the findings that the state courts rendered in vacating the convictions in those cases. The Illinois Supreme Court found that Hawkins and Fields were entitled to a new trial because Maloney had been motivated to convict them in order to deflect suspicion from himself. People v. Hawkins,
Whether the Supreme Court will adopt or reject the temptation-to-bias framework for judicial corruption cases remains to be seen. Judge Posner may be a superior reader of tea leaves, but I can find no actual holding in the Court’s opinion in this case to the effect that Turney and its progeny are inapposite and that actual bias invariably must be shown. Yes, the Court granted the petitioners the right to discovery so that they might establish actual bias, but in confining the scope of the case to discovery, the Court declined to consider whether proof of actual bias is the only means to relief in a case of judicial corruption. See Bracy v. Gramley,
For all of these reasons, I believe that we must vacate the petitioners’ convictions as well as their sentences. The temptation for Maloney to favor the State as a means of hiding and promoting his corruption was present in this case as we know it was in other cases, and there are signs-including the appointment of a felon to represent Bracy, the refusal to continue the penalty hearing notwithstanding the belated disclosure that the State intended to introduce additional murders as an aggravating factor, and the effort to discourage Bracy’s counsel from making a closing argument at the penalty hearing-that suggest Maloney may well have yielded to the temptation. More direct proof of bias is simply unavailable without the cooperation of Maloney or his co-conspirators, none of whom has proven willing or able to provide it.
Although some of my colleagues fear that we will be compounding the wrong that Maloney committed by granting a new trial to petitioners who did not bribe him, I submit that the opposite is true. The right to trial before an impartial judge means nothing if it is not a right that we are willing to enforce. It is hard to see why a new trial is warranted when an honest judge is faced with a financial temptation to favor one party or the other-although it is a temptation he might in fact have resisted (see Turney, Murchison, and Aetna Life)-but not when a corrupt judge is presented with a penal as well as a financial incentive to favor a party. It is
. This is the only way that I can see to establish a conspiracy to practice compensatory bias in one or more cases without the corrupt judge's own testimony. See ante at 422.
. I would note that Judge Maloney's handling of closing arguments at the guilt/innocence phase of the trial, as well as the capital phase, arguably supports an inference of compensatory bias at work. As the State’s first closing argument built to a conclusion asking the jury to convict the defendants, the prosecutor turned his attention from Collins (whom he had called “a[s] vicious and cold and calculating a killer as the good Lord ever created,” R. 23-5 at 1300) and Bracy (just "as bad,” id. at 1301) to their attorneys. After noting that it was his duty and that of his colleague to represent the State, the prosecutor continued:
It is the responsibility of Mr. Frazin (Collins’ counsel) to represent this killer, and it is the responsibility of Mr. McDonnell (Bra-cy’s attorney) to represent this killer.
Id. at 1335. An objection was overruled. Id. At that point, the prosecutor felt free to commence an attack upon the defense counsels' tactics, encouraging the jury to "think about the facts that these two lawyers get up here and mimic and mock and demean you,” id. at 1338, and suggesting that either McDonnell or Frazin — he wasn’t sure which — "is trying to hoodwink you,” id. at 1354.
Having been given such free rein at the guilt phase of the trial, it comes as little surprise that during closing arguments at the penalty phase, the prosecution argued not only that McDonnell’s criticism of capital punishment was "a slap in every veteran’s face,” R. 23-6 at 1646, as Judge Evans has pointed out, hut also that Bracy and Collins themselves would think a sentence of death fair and appropriate:
I will tell you one thing, ladies and gentlemen of this jury, if you come back with a decision that the death penalty should be imposed, I guarantee you that Roger Collins and William Bracey [sic] won’t feel it is an unfair decision.
Id. at 1654. "Objection to that,” complained McDonnell. Id. "I think that is improper,” echoed Frazin. Id. "Objection overruled,” was Judge Maloney's response. Id.