William Bracy and Roger Collins v. James Schomig and Roger Cowan

business,” prices losing Valley without its Roger Collins,

II, William BRACY F.2d at and there are no inferable, Petitioners-Appellants, that E Cross- allegations, direct or noted, Appellees, may can do so. As we there Street competing well be other stores to which consumers can turn. Roger Cowan, James SCHOMIG and eyes also cannot close our to the fact We Respondents-Appellees, Cross- geographic proposed

that 42nd’s market Appellants. Carriers, absurdly small. Car See (“In considering at 1110 a motion to F.2d 99-4318, 99-4319, 99- Nos. dismiss, court to don required 4320 and 99-4345. ignore blinders and to commercial reali- ty.”). The central business district of Appeals, United States Court of Highland Park —not even the whole of Seventh Circuit. Highland Park! —would have to be some- Argued Sept. 2001. thing of a consumer’s black hole for us to trendy shoppers wanting think that better Decided March prices designer jeans and T Shirts could not venture to other commercial ar- cartog-

eas to find them. It doesn’t take a

rapher Highland to know that Park is densely populated

located north Chicago,

shore nor does it take suburbs

a market researcher to know that “Chiea-

goland” many shopping is home to venues jeans

where could designer consumers find By any

and T-shirts. sensible awareness reality, swimming

of commercial 42nd was larger competitive

in a much sea than the

complaint lets on. said,

As the district this suit con- “competitive

cerns a two battle between Park,” shops Highland

little and al-

though complaint alleges the amended behest, spurned, E

42nd was Street’s manufacturers,

four there is no indication larger romance between the

young public designer jeans and its and T- way judg-

shirts was affected. The

ment of the district court dismissing 42nd’s complaint

amended is AFFIRMED. Office, Stainthorp, People’s L. Law

John IL, Levy (argued), H. Chicago, Gilbert Seattle, WA, petitioner-appellee, for Wil- liam Bracy. (argued), L. Browers Office of

William IL, General, Attorney Chicago, respon- for dents-appellants, Schomig, M. James R. Jonathan Walls. IL, Jr., Naperville, Farley,

Robert H. (argued), Stephen E. Eberhardt Crest- wood, IL, petitioner-appellant, Roger for Collins. FLAUM, Judge, Chief

Before COFFEY, EASTERBROOK, POSNER, KANNE, ROVNER, RIPPLE, MANION, WOOD, EVANS, and DIANE P. WILLIAMS, Judges. Circuit EVANS, Judge. TERENCE T. Circuit combining two men scheduled A case with the hands of the State die at the creates corrupt judge sentenced them who it is with this a toxic mix. And so sitting en today we resolve while which banc. betrayed posi-'

Thomas J. as an public trust he held high tion of County, Illi- judge in Cook elected circuit of his oath forced perversion nois. The judge’s robe exchange prisoner at a federal correc- relief in circuit garb County, court of Cook Although Maloney tional institution. can again Illinois. The Illinois Court held, longer disgrace Collins, office he affirmed, no once People v. 153 Ill.2d this case demonstrates that the ashes of 180 Ill.Dec. 606 N.E.2d 1137 corruption certainly still smolder. We Bracy and Collins then moved to federal few, hope any, embers will remain separate court filing corpus pe habeas today. after titions the United States District Court decision, parts today’s There are two for the Northern District of Illinois. Their majority and each commands a solid of the consolidated, petitions were and in a 1994 however, lineup judges, court. The decision the district court denied relief. part. help different on each To the read- Welborn, United States ex rel. Collins v. er, part note that of the judgment we (N.D.Ill.1994). F.Supp. peti 868 950 The rejects peti- which the claim that our two and, appealed panel tioners 2-1 deci tioners are entitled to a full new trial is sion, Bracy we affirmed the district court. joined by Judge Chief Flaum and Circuit (7th Cir.1996). Gramley, v. 81 F.3d 684 Posner, Easterbrook, Judges Coffey, Man- Supreme United Court re States ion, Kanne, part ahd Evans. The of the question versed our decision on the judgment holding that the defendants are Bracy whether was entitled to discovery, entitled to hearing receive new on finding good that he had shown cause for whether death should be im- moving forward with claim for relief. posed time judge— before an honest —this 899, Bracy Gramley, v. 520 U.S. agreed to by Chief Flaum and 1793, (1997). 138 L.Ed.2d 97 The Court Kanne, Judges Coffey, Ripple, Circuit then returned Collins’case to us for recon Rovner, Wood, Evans, Diane P. in light Bracy sideration of the decision. Williams. Welborn, Collins v. 117 20-year history, This case has a the first (1997). S.Ct. We in13 the Illinois state courts. We will court, sent the cases to the district which relate that history extensive here. What eventually denied habeas relief as to each follows is summary. brief petitioner’s granted conviction but relief as Bracy1 William Roger Collins were to their sentencing. United States ex rel. convicted, trial, jury after a multiple Welborn, F.Supp.2d Collins v. murder, charges robbery, armed (N.D.Ill.1999). We affirmed the district aggravated kidnaping. Following a fur court to the convictions but reversed on ther, two-stage hearing before the same issue, sentencing again panel a 2-1 jury, both men were sentenced to death Schomig, decision. v. 248 F.3d 604 convictions, for their murder and to con (7th Cir.2001). Subsequently, opinion 60-year prison current sentences on their was vacated when a majority judges of our ap other convictions. and Collins voted to rehear the case en banc. Which pealed, and the Illinois Court brings today. us to affirmed their convictions and sentences. Collins, People v. 106 Ill.2d 87 Ill.Dec. The events giving rise to this case oc- 478 N.E.2d 267 They years ago then curred some when drug denied, sought, postconviction men, and were deadly. deal turned expecting Three prior As noted changed spelling court decisions in this in other we cases cite to case, "Bracy” spelled "Bracey.” is sometimes conform to ours. We “Bracy” spelling have used the and have proceedings involving Bracy The court instead robbed and buy drugs, were played relatively out in a rou apartment to a via- and Collins Chicago from a taken Street, until tine manner when Malo- Road and Clark duct at Roosevelt presided Bracy, ney, death. who over their state court they were shot to where trial, Collins, Hooper, who was was himself convicted of serious Murray charged charges- taking with vari- bribes from defen separately, were tried —he episode. during of the dants in criminal cases the time growing out ous crimes period Bracy-Collins trial. United Bracy and against witness The chief (7th Maloney, 71 F.3d 645 Cir. States Nellum, who admitted- was Morris Collins 1995). Bracy and did not bribe Collins crimes. Nellum testi- ly part took present petition they in the Maloney, but him drive asked Collins’ fied Collins argue that their convictions and sentences to Roosevelt Road and Clark Cadillac process violated due because ha picked wanted to be because Collins Street bitually came down harder on defendants Collins, Bracy, saw up there. Nellum then him than he who not bribed would men in the back Hooper place three on take. have done had he not been the Oldsmobile; away Collins drove seat of this, said, suspicion He did to deflect car and Bracy in that car. drove his own crime, suspicion that he was soft on When Nellum Nellum drove Cadillac. unexpected arise in cases where he viaduct, he heard shots. arrived ly acquitted easy on convicted went Bracy running he to his Immediately, saw Being hard on defendants defendants. automobile; carrying was a sawed-off he him, Bracy who did not bribe and Collins got into the car with shotgun. Collins contended, inspired also other defendants scene, they sped from the Nellum. As short, Bracy to offer bribes. Col said, Hooper. I told “That damn Collins Maloney engaged lins asserted that him to wait until —I wanted to use the “compensatory what has been dubbed they can’t trace the shot- shotgun because bias.” Bracy gun, gun but he used the instead.” Bracy must Exactly what and Collins and told him to “Just be gave Nellum $125 claim has twice prove prevail on this drove, again then with Col- cool.” Nellum and has at panel divided a of our court lins, where Collins Michigan, to Lake peripherally engaged the attention least into lake—a .38- handguns threw two Supreme Court. It continues divide Arms and a .357 caliber Charter revolver us, which although principles there are was The Charter Arms revolver revolver. disagree. we do not Nowell, by Christina who testi- identified that Ma- agreement area of oppor- had the The first Bracy previously fied that presump- loney is not entitled to the usual to take the revolver from her. She tunity ordinarily judicial informs told her “he had tion Bracy also said that later public officials presumption cases—-a people gun] some with [her murdered their official gun, “properly discharged River.” A Chicago threw it into the lake, Foun- duties.” United States v. Chemical in the was Nowell’s later discovered dation, Inc., 71 trial, Nellum, 272 47 U.S. S.Ct. At in addition to gun. in no indulge We can witnesses who L.Ed. 131 called a number of State case. The Su- presumption pieces puzzle such provided enough “unfortunately, the preme said that jury to convict Court convince the soundly and, has been rebutted: separate proceeding, presumption in a sen- Collins thoroughly shown to be Maloney was tence them to death. corruption through public village.” cial needs of the Id. at steeped Bracy, 117 at S.Ct. 437. trial and conviction.” S.Ct. agree that the fact Secondly, we Revisiting the Ohio statutes Ward exceedingly corrupt so Monroeville, Village support per finding se does not (1972), S.Ct. L.Ed.2d 267 the Su presided every case over which preme may- Court considered the case of a

infected. try municipal or who was authorized to violations, and traffic who was not but diverge exactly over what opinions Our personally pocket entitled to a share of meant when it said Court imposed. fines The Court found that a must show “that and Collins direct financial stake in the outcome “did actually petition- biased principle.” not define the limits of the phrase encompasses er’s own case.” The bias,” judge, defendant was entitled to a neutral appar- “actual concepts. One is two mayor money which this was not because ently appearance to the contrast “mayor’s collected court” benefitted ordinarily supports judicial which mayor when he wore his executive hat claim. The second makes clear that the in controlling village’s finances. petitioners complained-of must connect specific The former bias to their case. Even the absence of an indirect financial surprising somewhat of a limitation on basis for a claim of enough bias was not to claim; Also, their the latter less so. we Murchison, save the conviction in In Re petitioners’ agree seem not to on what 133, 349 U.S. 99 S.Ct. L.Ed. 942 they can evidentiary burden is and how (1955), in which the Court was concerned meet it. appearance with the of bias. The Court acted, that the judge concluded same who Ohio,

First, Turney actual bias. v. law, Michigan under as a “one-man grand 273 U.S. 47 S.Ct. 71 L.Ed. 749 jury” preside contempt could not over a (1927), case, mayor prohibition-era a of proceeding against a witness: village empowered try persons a was charged unlawfully possessing with intoxi- of requires Fairness course an absence ordinance, cating liquor. village Under a of actual in the bias trial of cases. But mayor levy against system could a fine viola- our of always law has endeav- mayor granted prevent probability tors out of which the ored to even the “his costs in each in addition to his unfairness. To this end no man can abe regular salary, compensation judge as for hear- in his own case and no man is ing lay prob- permitted try such cases.” And therein cases where he has an mayor money lem: the made extra for his interest in the That outcome. interest precision. service as a he convicted and fined cannot be defined with Cir- breaking those the law. charged relationship with For cumstances and must be mayor said, 6 months in 1923 the received considered. This Court has howev- sum, er, process, paltry from a “every procedure which would $696.35 inflation, adjusted compared possible even a temptation offer to the aver- age take. con- man ... Court not to hold the nice, cluded that the mayor disqualified balance clear and true between the accused, hearing from cases both because of his State and the denies the latter outcome, pecuniary process “direct in the [citing Turney]. interest due of law.” stringent and because of official motive to convict may his Such rule sometimes to graduate help by judges the fine to the finan- bar trial have no who actual only did he find himself with the very best to sion. Not would do their and who unfairness, to show bias and justice equally opportunity be- scales of weigh the who, by very pres- a criminal per- But to he was contending parties. tween bench, way ence on the undermined the founda- function in the best high its form justice. system tion of our He was not satisfy appearance “justice must States, an v. United mayor presiding 348 a over ordinance viola- justice.” Offutt fine, setting L.Ed. 11. tion case and 75 S.Ct. U.S. sending men to the death cham- racketeer 136, 75

Id. S.Ct. ber in the name of the State. It is hard to Lavoie, Insurance Co. In Aetna Life analyze by looking what he did cases 1580, 89 L.Ed.2d municipal insurance involving fines or (1986), again based its find- the Court It to understand equally claims. hard ap- process violation on ing of a due why judgment receives level of justice A the Alabama pearance bias. protection. a case which estab- Supreme Court sat on only explanation unique Our is that the damages were avail- punitive lished that may why nature of this case we need insurer, against claim a case on a able Maybe it is because look for actual bias. justice, to one which the which was similar of bias—or at least of appearance in an plaintiff, pending as a himself may It be that criminality so obvious. was con- Alabama trial court. The Court —is analysis careful to tie our we must be temptation justice that the cerned with the present actual in the case because nice, “hold the balance clear might not concerned obviously was so ordinarily true.” These cases tell us justice other cases. Whatever required, appear- is not “actual bias” reason, heavy Bracy and Collins have the disqualify of bias is sufficient to ance showing actual bias. burden of in the language But judge. because Bracy, we will Supreme Court case then, issue, The is the means which today actual bias. focus evidentiary they can meet their burden. extrinsic to Clearly, they can use evidence concept the bias must The second —that all, in their case. After the trial record petitioner’s “in own case”—is not be found appeal Supreme to the Court involved just we surprising. each of cases discovery. But that discussed, right to take appearance the bias-or of bias— their pointed out in discovery, Judge as very in the case the court is con- Rovner appears panel in our decision after require- That not an unusual her dissent sidering. is or, remand, produced “smoking gun” a no petitioner A cannot show ment. habeas it, put proof’ no “hard of Malo- in his be- she also process due violation own case That, cause, 248 F.3d at 609. ney’s refused to motives. instance* decision, pretty according panel to our suppress in another case—or evidence story. To a certain much the end of the particular judge hardly that the ever even extent, disagree. we suppresses request evidence at the of defense. why Bracy and Collins see no reason We by finding smoking Maloney’s can show bias

But the nature and extent apparently would gun, which in this case duty casts this case dereliction of that he stacked put be confession light and makes hard to unusual take the heat off against deck them to any framework. Not Maloney normal Direct evidence of that sort any presumption himself. he not entitled to only is But evidence short fairness, simply deri- not available. but he is entitled our is, by Maloney by compensating as we will cases for it others. of a confession see, $10,000 claim. present support accepted their From to acquit He bribe of evidence, can reasonable inferences El gang two Rukn members of a double murder, drawn. money but he returned the when suspected (correctly) that the FBI was Furthermore, pen this is a death him. monitoring The Illinois alty case. Like all others sentenced granted Court these men new trial be- death, are Bracy and Collins entitled to Maloney cause was motivated to convict of their painstaking our review convictions suspicion, them in order deflect a direct because, and death sentences as the Su example compensatory bias. court preme recognized, often death is Court has said: Florida, different. Gardner v. See Maloney subsequently That returned U.S. not money did render his interest in (1977), and cases cited therein. We review the outcome less acute. As defen- findings the factual of the district court for suggest, dants he wanted to insure that Legal clear issues are reviewed de error. Godinez, judicial post he did not novo. v. lose his Bocian F.3d 465 (7th Cir.1996). salary as Having concluded that re a result a criminal indict- ment, view, nothing we see that moves us to and therefore was motivated to opinion spark disturb the meticulous return a verdict would (1) suspicions T. Hart in the district court William of authorities. likely Maloney that it is more than not that Fields, People v. Hawkins & 181 Ill.2d engaged the death (Ill. 228 Ill.Dec. 690 N.E.2d (2) penalty phase of this that the 1998). Similarly, a defendant named Dino support finding evidence does not such a $10,000 bribe, gave Maloney Titone but guilt phase of the trial. him anyway. convicted We have said that was a crimi Strayhorn, pre Earl E. the Illinois judge nal, racketeer, but these words do not siding post-trial motion, over Titone’s va convey just how serious his misbehavior cated the conviction because First, was. we know he was convicted of a motive to suspi convict Titone to deflect extortion, racketeering, and obstruction of Titone, cion from himself. People See justice gang-related murder Ma cases. 127, post No. 83 transcript C conviction loney, corruption 71 F.3d 645. His made (Cir. 25, 1997), County, July Ct. Cook $400,000 possible spend it for him to more example R239. Another of Maloney’s abili years than he earned over 6 in ending ty to expe cover his tracks came from the He taking 1984. was convicted of a bribe Swano, attorney rience of William a Malo- Chow, acquit Lenny a hit man for a time, ney-briber previous” in cases. This organization, crime who with two other represented Swano a man named James charged men was in the murder of William Davis in a case which Swano evaluated as Chin. Also pocket, with a bribe his words, weak. In other Swano did not Maloney acquitted felony Owen Jones of a think necessary a bribe was in order to charge murder of beating a man to death acquittal win an for Davis so no bribe was during burglary a him convicting while wrong; offered. Swano was Davis only instead on charge lesser of volun trial, Maloney’s convicted. At Swano testi tary manslaughter. experience fied that he construed the as a Maloney practice

Other cases show that was ca- lesson “to front of pable camouflaging of his actions in ... pay.” some we had to provides All a framework for Maloney’s sentencing, the United this At that, occasion, petitioners’ claim on Malo- submitted a version of Government States ney engaged blueprint compen- bias. his offense task for and Collins is to connect his satory bias: with their case and must do it corruption be- THOMAS MALONEY’s being get Maloney’s without able to inside at time he was a criminal de- gan rely head. Their need to on circumstantial judges off and attorney paying fense evidence arises because was not including fix personnel court cases— provide link going through some notorious murder case—and continued During discovery sort confession. through judge the time he was a work- this case he not failed to admit that ing as a mafia factotum the Cook any he took untoward actions this case: system taking County Circuit Court it, put “vehemently As Hart he very all manner of bribes serious arrogantly denied all of bribery rep- Maloney’s criminal cases. Thomas charges clearly by jury established prosecution utation as a strict oriented findings presented and the evidence at his judge By casting was no mistake. F.Supp.2d criminal at trial.” 79 suspi- image, Maloney sought to deflect At sentencing Maloney point- his federal activity, cion from his criminal while si- edly Bracy and As remembered Collins. desperate multaneously giving select de- evidence, all insisting, he was the face of right people fendants who knew the an that he had judge been honest Thus, pay by using him off. incentive career, distinguished he cited as a credit to trial court position felony his of Hawkins and record both case to extract bribes from defendants who Fields, engaged where we know he com- long periods imprisonment face pensatory and the trial of execution, far THOMAS MALONEY Collins as well. can we infer from What surpassed corrupt jurist category all; say nothing this? One could territory to chart a new of defilement. was motivated inference suspicion from himself

the desire deflect think, in simply conjecture. Yet we got ... his turn on the [W]hen certainly appro- bench, context of this imposed a THOMAS MALONEY priate for the district to consider system sinister which had the dual effect compensa- an indication that this reference concealing promoting corrup- tory might very well have been tion. THOMAS MALONEY the former Bracy-Collins work in the case. champion of the defendant became one judges of the most ruthless on the And there is more. Consider mercy Showing bench. defendants little Bra- appointment of Robert McDonnell as diverting any conceiva- the effect cy’s attorney. Bracy’s original In 1981 suspicion from while at ble MALONEY attorney permission to withdraw given time defendants a giving same Bracy money pay because ran out of to strong cough up big motivation to brib- appointed to Maloney him. McDonnell ery dollars. represent Bracy, and a short time later ready McDonnell announced that he was statement, posi- We think this the official for trial. of the tion Government United States, ap- up Maloney’s Bracy alleged cur- that McDonnell was accurately sums partner he had pointed riculum because been vitae. attempt to deflect presumably partner, a law could be construed as an Maloney’s, suspicion, after the Court deci- looking to McDon- because case, Maloney, in was in sion who help Bracy would be nell to ensure showed, prison, called McDonnell obtain McDon- in this case Discovery convicted. signature nell’s on an affidavit which stat- however, part- were never law two chose actually ed that it was who their con- ners. But it also showed that attorney. McDonnell as his McDonnell troubling. Maloney more nection was testified that he did not remember it that each other and associated McDonnell knew way. Chicago organized in some manner with crime families. was a de- When corrupt judge So far we have with mob attorney Chicago, reputation in

fense connections, attempts who to cover his a “fixer.” In 1977 was that of tracks, and is now a convicted felon. We Aleman, Harry represented his friend who lawyer, organized have a defense also with a “hit man for the mob.” Aleman was ties, crime who is also a convicted felon. According murder. to Rob- charged with in engaged Both are the trial of two men Cooley, corrupt lawyer who became ert danger being who are serious sent to informant, Maloney paid an FBI the death chamber. that as the With set- $10,000 acquitted. and Aleman was ting, we will now turn to the record to see whether there is evidence from which Maloney, con- Like McDonnell was also Bracy’s pro- to infer that and Collins’ due that, lawyer. an “outfit” sidered Not rights during at trial cess the death but 1966 McDonnell himself was convict- penalty hearing were violated in a manner conspiracy court to distrib- ed federal explained by Maloney’s that can best be money ute and was sentenced counterfeit appear tough. desire to years prison. to 2 In 1968 he was convicted of income tax evasion. heWhen analysis by principle Our is informed prison was released from for that offense analysis there is no harmless error he was disbarred. He was rein- judicial relevant to the issue of bias. Ed- approached Balisok, stated to the bar in 1980 and wards v.

judges appointments. in criminal court for (1997); Cartalino v. was, said, (7th Cir.1997). It in 1981 that he we was Washington, 122 F.3d 8 Later, appointed represent Bracy. words, it not other does matter we conspir- McDonnell was convicted of any jury conclude that would have acy government to defraud the and solici- likely been to convict and Collins operation tation to influence the of an em- approve death as their no ployee plan. benefits This time he was attorneys matter what their for tried do years, sentenced to 6 1990 he with- question- them. Nor does it matter that a name from drew his the Illinois roll of ruling might able have been found to be attorneys to save himself from disbarment. harmless another court. First, guilt phase

What this reflects is that McDonnell did of the trial. The highly developed not have a ethical discretionary sense. district court examined the legal rulings It does not mean he did not have at the trial and found that there though enough, apparently, concluding rul- was no basis skills— escape ings by Maloney’s attempt detection himself. We think it’s were tainted if Maloney corruption fair to infer that wanted a deflect attention from his ethics, contended, lawyer petitioners with questionable McDon- other cases. The Furthermore, instance, perju- his man. in for that committed nell was what Neflum rope passed Georgia, al- since Furman v. 408 U.S. pieces that They argued ry. (1972), type with the 33 L.Ed.2d 346 to be consistent S.Ct. leged of the victims were rope “every to bind one Member of this Court has written used evidence, despite the fact that into joined opinion endorsing entered or at least one and could have rope very the common proposition severity that because of its in store. purchased any hardware been irrevocability, penalty the death to those in complaints, similar These weak qualitatively any pun- different from other trials, an infer- do not allow many other ishment, accompanied and hence must be also actual bias. and Collins ence of by unique safeguards to ensure that it is a sup- that refused complained response justified given to a offense.” in a showing Collins press photographs think, safeguards, Those we are found not hat, which was consistent broad-brimmed just statutory provisions in giv- regarding his a witness’s statement with state, in in en but also the manner which of the murders. appearance night on the provisions implemented in trial those are police, rather Maloney chose to believe the Additionally, phase guilt courts. while the Collins, regarding how and where the than largely objective, involving of a trial sort, Findings seized. of this photos were cold, happened, a hard facts about what favoring often make a law judges which penalty hearing death often involves events, conflicting enforcement version subjective good deal of evidence. Evi- actual support do not a claim of bias. We often consists of mitigation dence testi- that no discretion- agree with Hart mony damaging what about forces defen- phase of this ary rulings during guilt endured in his life what kind of dant has or that trial lead to inference person he otherwise is. should not We actually against Bracy biased and Collins. saying rulings be misunderstood to be penalty phase of the trial is another guilt phase subject at the are to a harm- Illinois, phase In is divided matter. analysis, penalty less error whereas First, jury if a parts. into two decides earlier, phase they are not. As we said penalty. death eligible defendant is apply to claims of harmless error does years eligible, To be he must be at least 18 bias, ever, judicial involving even in cases must have involved one old and crime payments municipal or ordi- insurance of the factors set out the statute. Once violations, say of first- nothing nance found for the death eligible a defendant is But when are degree murder trials. we penalty, ag- the focus shifts to factors judicial the na- dealing alleged mitigation. mitigat- Unless gravation aggravation mitiga- ture of evidence preclude ing factors are sufficient requires us to look at the tion sentence, the de- imposition of the death eye, phase skeptical keeping with a shall be sentenced to death. 720 fendant Malo- judge, mind that the trial 5/9-1, formerly par. Ill. Stat. ch. ILCS ney’s responsibility solemn to see 9-1. penalty hearing was fair. He failed death miserably. egre- And his failure was so Maloney’s rulings at the evaluating gious supports that it an inference we are penalty phase proceeding, of this failed, consciously unconsciously, be- again mindful that death is indeed differ If the death cause of bias. separate opinion Spaziano ent. In a scripted, it could Florida, 3154, penalty hearing had been S.Ct. (1984), damaging more not have been Justice Stevens years and Collins. pointed out prepare explo- for the properly said he would so he could recall that McDonnell We complained He after he was sive Arizona evidence. ready for trial a few weeks recently provided But an he had Bracy’s attorney. been appointed as shows, pages of information the Arizona although of the record about examination adequately pre- government pages said it turned out that he was case. Apparently phase pages of the he of the 80 were relevant. pared guilt for the penalty hearing, prosecutor’s assessment was allowed to prepared for the wasn’t reason, prevail; again giving a he have been. It was not until without nor could prosecu- Maloney trial that the decided that the death beginning of the proceed both penalty phase hearing against that at the he would defen- tor announced introduce, aggravating adjourning anything dants: are not planned to as “We factor, Bracy charged days. proceed- for a week or ten are evidence that was We murdering people ing, two Arizona. So as a matter of fact.” with jury McDonnell was about to embark on a The evidence of the Arizona murders charged trial in which his client was inflammatory. was admitted and it was It Bracy if three murders. And were con- story nasty was the of a home invasion victed, there would be evidence of two resulting peo- in the brutal murder of two more, unproven, committed yet as murders ple. The survivor of the attack was the McDonnell another state. We doubt daughter wife one of the victims and the possibly fully prepared could been other. Bracy She identified as one penalty hearing. of the attackers. over and the guilt phase When the The Illinois Court found no penalty hearing begin, McDonnell about error in grant the refusal to a continuance objected to the use of the Arizona murders Bracy prejudiced by was not because aggravating factors as because there introduction of the evidence. That was been, yet, no conviction in Arizona. true, said, the court because the time of agree seemed at first to that the had, fact, appeal Bracy been convict- testimony questionable. use of the ed in Arizona: He said: If we were find the denial of the authority

It hasn’t been tried? On what improper continuance have been you going attempt are to introduce or sentencing hearing, remand for a new introduce here? Bracy’s the State would then introduce said, evidence, assuming Later he “Just here Arizona convictions into thus raising stronger were the case and then he were to be an even inference that you acquitted part there and had used committed the Arizona crimes. the same Then would we evidence. where 87 Ill.Dec. N.E.2d 286. This point, stand here?” On this Collins’ attor- sounds to like a finding us more harm- Frazen, ney, Irvin asked for a severance. finding less error than a He was concerned that the Arizona evi- properly discretion was exercised. Our against Bracy spill would dence over onto job is different from that of the Illinois Ultimately, Maloney Collins. denied Col- Supreme Court. We need to view Malo- and, saying lins’ severance motion without ney’s actions as of the time of trial. At why, determined that the Arizona evidence time, he could not have known admitted. would be convicted, Bracy would be and for that thing; then did the next best matter there even some McDonnell doubt appropriately actually asked for a continuance be tried in Arizona. would

417 hear- unconcerned as he was capital sentencing In the of a about McDonnell’s context harmless error ing preparation meeting on an issue on which lack of the Ari- Maloney’s ruling, even if apply, fact, not does zona evidence. even supportable appeal being on a direct as not discourage tried to McDonnell from mak- discretion, support lends an abuse a ing closing argument penal- at the death showing compensa- that he inference ty hearing. tory bias. It is more than a fair inference MR. McDONALD [SIC]: Wait mo- increasing impo- the likelihood of the ment, judge. would fine sition of the death be THE you COURT: What do want? Judge Maloney. I argue. MR. McDONALD: want to

Later, again objected McDonnell to the THE COURT: You do? evidence, that it saying Arizona had come to his attention that there was a 1980 case MR. Certainly. McDONALD: presumably supporting position his then called for side-bar confer- “although I the evidence inadmissible ence: the citation.” asked if do not have When THE argue COURT: You don’t have to said, point, he had a case on McDonnell in this case. “McDonnell2 on common sense.” He re- argue. MR. McDONALD: I want to the citation. peated he did not have said, try “I will to find the case. If I He MR. Arguments part FRAZIN: are it, Appellate can’t find Court can find it it. Maloney said “Ml or the Court.” They THE COURT: can be but right.” Less concern about the fate of the don’t have to be. importance defendants and the of this dis- Ultimately, arguments were allowed. cretionary, ruling admissibility on the explosive hardly imag- evidence could right thing McDonnell seemed to do the ined. given But insisting argument. inability to counter the Arizona evidence Finally, mitigation. evidence in' miti No denial of the continu- because presented gation was as to and little ance, nothing say he had about the was offered as to Yet evidence Collins. aggravation. evidence in With no State’s mitigation crucially important in death mitigation, nothing evidence he had Ohio, penalty litigation. In Lockett v. talk on that well. it about score as So U.S. 57 L.Ed.2d surprise that “argu- should come as no (1978), the Court said that the “sen- simply against ment” was tirade precluded tencer” must not “be from con penalty: death mitigating factor, any aspect sidering, as a of a defendant’s character or record being a human and we don’t have This is the offense any of the circumstances of person’s life. right to take another proffers that the defendant as basis for Only gave can do that. God us this God sentence less than death.” See also Bu I only away, life and can take it God Angelone, chanan v. care, right don’t none of us have 757, 139 S.Ct. L.Ed.2d 702 life, human being’s take a fellow Honor, prosecu- Bracy, not his not the sublimely unconcerned tor, you people. mitigation, a lack of evidence in and not about reporter typing the as "McDonald on com- 2. The court often referred to McDon- statement here, actually sense.” nell as McDonald and did so mon argument Imposition is this sort of inad nothing. Not of the death penalty sentencing hearing, in a foregone missible see Peo was a conclusion this case. Williams, ple v. 97 Ill.2d 73 Ill.Dec. prosecutor’s Had the comments not (1983), but, worse, 454 N.E.2d 220 invited, likely been it seems that the courts prosecution “invited” the to come back might very of Illinois well have ordered a incendiary with an retort of its own—that penalty new death hearing and say penalty wrong the death is tois ago. Murray Hooper’s Collins a decade malign all veterans: appeal, Supreme first the Illinois Court People I’ve heard that before. 1941 Hooper, vacated his death sentence. through 1945 killed the name of their said, charged along we have was with Bra- country objection time an [at which cy and Collins with the murders the in service to their country. overruled] present In Hooper’s prose case. case the Some of us went to Viet Nam and had to speculated cutor that if placed he were kill I country, for this and will be dam- life, prison for Hooper might very well kill if anybody going ned to tell me that guard chaplain. Relying on cases what in any we did Viet Nam or other where it parole found a reference to and to war was a violation of the Fifth Com- possibility committing more mur mandment of the Bible. improper prejudicial ders and [People v. Later, prosecutor referred to McDon- Walker, 502, 91 Ill.2d 64 Ill.Dec. 440 argument slap nell’s as “a in every veter- (1982); Gacho, People N.E.2d 83 v. 122 an’s face.” Ill.2d 119 Ill.Dec. 522 N.E.2d (1988)], prosecutor

The 1146 the court Hooper’s also alluded to vacated People chance that death sentence. Hooper, and Collins “es- cape from Ill.2d again they Stateville” Ill.Dec. 552 N.E.2d were given Reference escape prison another chance: from give “Should we chance; Bracy’s hardly them another and Collins’ case can up lock them and less give escape damaging them a chance to than reference to possi and kill bility parole someone in Hooper’s. else?” It seems likely that if McDonnell had not set the The Illinois Court noted that prosecutor up nicely, so if Maloney prosecution’s remarks were a dra- “bit had not been so deliberately indifferent to rejected matic” but the claim they petitioners’ fates, the death sentences because, constituted reversible error imposed on Bracy and Collins might, like said, court “there is no question Hooper’s, have been many years vacated prosecutor’s [the were remarks] invited.” ago. agree. We The remarks were invited. argument objectiona- McDonnell’s was so possible" What motive could Maloney ble that it is hard to see how he or Malo- gross have had to allow such impropriety ney type could not have known hearing? what at this compelled We feel not to response prosecution going inference, to shirk from seeing strong make to it. It pushing credibility given what we Maloney, now know about imagine experienced that an trial deliberately let penalty this death (for Maloney experienced, if not hon- hearing become a imposi- debacle because est) did not unfolding. see this scene tion of the death these two men prosecutor repeatedly Maloney’s called at- reputation would bolster his tough as a objectionable tention to the judge. nature of We must do no less than argument. who, McDonnell’s Yet Maloney Strayhorn did recognizing while the ex- alty as directed the district corruption, recog- hearing also tent could not Titone case he court. The case is to the dis- that in the nized Remanded corruption might role proceedings. about the be certain trict court for further said, always “I’m faced played. He POSNER, ques- Judge, I answer the with whom the fact that can’t Circuit MANION, in a fair tribunal he tried tion of was EASTERBROOK Circuit him and an gave who a fair join, concurring before a Judges, dissenting. always stop And I must honest trial. I agree that convictions should stand But he honestly I don’t know.” say (though my reasoning differs from said, procrastination on “no amount of also Evans’s), but not that the death sentences my of reluctance on my part, no amount Judge Maloney, should be reversed. ... what part wipe can out the fact that in alleged whose bias is the issue Dino in that courtroom as to went on appeal, presided phases over both of the justice.” He ordered a Titone was not supposing case. There is no basis for him new trial. until the unbiased defendants were con- inevitable, fair, if not In our it is a victed, sentencing then biased at the hear- used the death inference ing. supposition Such a offends common suspicion deflect penalty hearing to driving sense. What must be the outcome of, say, his ac- might be aroused because appeal of the is a with sense discomfort another accused murderer who quittal of Maloney’s great that is too to con- antics him. Without a confession had bribed template executions without acute distress Maloney, will know for from we never great contemplate but not too life sen- But not re- certainty sure. absolute is only meaning That is the I can tences. place petition- The burden we quired. reference to a assign Evans’s espe- ers never is absolute. Defendants — mix.” have Bracy “toxic For Collins facing death —have a cially defendants they due failed to show that were denied Process to a right under the Due Clause process at trial or in of law either sentenc- in v. “fair trial a fair tribunal.” Withrow merely is ing. To reverse their sentences Larkin, 1456, 43 421 U.S. 95 S.Ct. compound Maloney’s wrongdoing. To 712 think this means L.Ed.2d We upholding reverse while convictions a to a who takes right have difference, unprincipled splitting seriously responsibility to conduct fair justice. It legal rather than is the sort of proceedings, a who looks out for the thing might an arbitrator do or a mediator undeserving of even the defen- rights most propose. It be understandable as would far of that dants. fell short settlement; judg- indefensible as a circumstances mark. Given all the other ment. Maloney’s disregard utter for show in Bracy and were convicted Collins that com- justice, we think the inference in an court of by jury Illinois state pensatory bias was at work the death gangster-style three murders committed penalty phase of this case is a more com- sentenced to previous year, were pelling explanation Maloney’s actions jury. affirmed the denial death We things incompetence, negligence, like than corpus Bracy v. of federal habeas relief happenstance, judgment or accident. The Cir.1996). (7th Gramley, 81 F.3d 684 Bracy affirming the convictions of William reversed, 899, 117 520 U.S. their death Court Roger vacating Collins but (1997), 1793, holding L.Ed.2d 97 may S.Ct. sentences is Affihmed. The State showing discretion, made a sufficient pen- a new proceed, at its 6(a) could tried Governing petitioner’s of the Rules so that case under Rule before, camouflage negotia- the bribe 2254 Cases the United States Section in,” contemporaneous tions case before him to entitle to conduct District Courts Maloney. Id. at 117 S.Ct. 1793. The discovery concerning his claim course, is, pointed out that “this Court The Court re Maloney had been biased. point; sup- it is not only theory at this case for reconsideration manded Collins’s ported by any petitioner’s solid evidence of opinion Bracy’s case. Col light its lawyer’s participation any such trial Welborn, 117 S.Ct. lins substantiated, plan.” Id. But if this theo- (1997) curiam). (per L.Ed.2d 209 ry Bracy’s attorney, “trial a former Maloney had been convicted a federal practice in a law associate relating court 1993 of various offenses that was familiar and comfortable with from criminal de having taken bribes corruption, may agreed to take this during period fendants that included capital quickly peti- case to trial so that petitioners’ trial. See United year of suspi- tioner’s conviction would deflect (7th Maloney, 71 F.3d 645 Cir. States v. attract,” rigged cion the ... cases 1995). He had not solicited or received support id. at would they ar bribes from or Collins but Maloney actually “his claim that bi- gue habitually that he came down harder (em- petitioner’s ased in Id. own case.” who had not bribed him on defendants phasis original). rejected The Court than he would have done had he not been Rovner, dissenting view of this, they argue, bribes. He did taking court, judge “petitioner our that any suspicion might both to deflect entitled to relief or not he could whether accepted arise in the cases which he had prove Maloney’s corruption had gone or acquitted bribes and as result conclusion, impact on his trial. The latter easy that he was “soft” on defendants course, of would render irrelevant the dis- (which might endanger on criminals covery-related question presented in this reelection) and increase the size and n. case.” Id. at 903 117 S.Ct. 1793 frequency of the bribes offered him. (citation omitted). Regarding “the cor- discretionary “if rectness of the various rul- Supreme The Court held that it ings by petitioner cited as evidence of Ma- proved, compensatory, cam- could be such bias,” loney’s the Court remarked that ouflaging Maloney’s part peti- “many of these rulings have been twice tioner’s own ease would violate the Due upheld, petitioner’s and that convictions of Amend- Process Clause the Fourteenth affirmed, by and sentence have been twice ment.” 520 U.S. at 117 S.Ct. 1793 Supreme the Illinois Id. at 906 n. Court.” added). (emphasis concluding 6., 117 S.Ct. 1793 Bracy presented enough had evidence of such bias to entitle him to seek additional Twice the Court said that to through discovery, (and evidence Court fo- provide Bracy a basis for relief for Collins) cused on the contention that his trial coun- compensatory hence for bias must sel, McDonnell, ap- Robert who had been petitioner’s be shown “in own case.” This pointed by Maloney represent Bracy, Maloney engaged means that even practiced cases, had law with before the compensatory some judge latter had become a and that enough justify would not a conclusion be “might appointed Bracy McDonnell have been had Collins been convicted understanding process; with the that he would not and sentenced in violation of due to, with, trial, object prompt prove interfere would have to biased,” (“actually ery, as the temptation had been biased since existence of the said) noteworthy Court at their trial. Also was conceded and the question was approving is the Court’s reference to the it, yielded whether had either description panel opinion our generally or in the trial theory “specula- bias as Collins. The thought Court it crucial to Appeals, opin- in its tive”: “The Court determine Judge Maloney whether ion, pointed theory quite out that this succumbed. Later we decided a in case all, speculative; equally after volving corrupt judge, a different Cartali likely judge that a who was ‘on the take’ in no Washington, supra, in which the some criminal cases would be careful to at requisite proof supplied: bribery appear least to favor all criminal defen- scheme included convicting Cartalino. dants, apparently so as to avoid wild is no convicting There evidence that unexplainable swings judi- in decisions and part Maloney’s Collins was bribery philosophy.” cial Id. at 117 S.Ct. scheming. 1793, citing 81 F.3d 689-90. If possibility the mere of compensatory temptation Sometimes the to bias is so bias were enough to establish actual proof great required. bias is not all decisions by accepted who This is true when the has a substan would bribes be invalidated —in the case of pecuniary tial stake the outcome of the Judge Maloney, literally thousands. That case or when he is bribed one of the compensato- is another distinction between See, parties. e.g., Aetna Ins. v.Co. Life (or ry bias and a financial family stake Lavoie, relationship). A financial stake is case (1986); Del Vecchio v. specific. temptation it offers the Corrections, Dept. Illinois 31 F.3d of judge is limited to the case in which has (7th Cir.1994) (en banc); 1370-80 Cartali a stake. His other cases are unaffected. (7th Washington, no F.3d But theory compensatory the of bias im- Cir.1997). difficulty peering Given the of plies judge’s that all the in crimi- decisions mind, judge’s high probability into a fatally nal cases are contaminated —the is, confession, bias in the absence of the bribed, course, cases in which he was proved, most that can ever be and some also the but cases which he was not objective times the alone circumstances bribed; and so—all his cases. The Su- enough prob are to establish the requisite preme adopt Court did not and would not ability or at least that no establish compensatory countenance a rule that bias ordinary person judge would believe presumed can fact from the that a yield temptation. would not to such a But judge accepted has bribes in some cases. it apparent passages is from the that I opinion in present Rovner’s the quoted Bracy opinion from the disregards Supreme round the Court’s Supreme regard Court does not repeats position mandate. She she temptation engage compensatory bias original appeal position took per into the falling category, as se where —the disapproved the Court all of Malo- proof temptation enough to entitle —that (and ney’s presumably convictions those of a defendant to a new trial because the bribe-taking judge) other must be set judge (per likelihood that the succumbed haps quite unconsciously) case-specific If aside and that evidence of great. it unnecessary, per category, compensatory always did fall into the bias is se should, and indeed irrelevant. made argued Rovner had there would The Court unmistakably no occasion have been to conduct discov- clear operative guilty are and will be con- to have been nal defendants proved must be anyway. case. Proof of victed particular defendant’s as Cartalino illus- impossible, this is not Supreme discovery The ordered inferred, much could also be trates. Bias Court drew a blank. Much of it consisted inferred, often is from a as discrimination goose after McDonnell’s of a chase wild not rulings that could be satis- pattern of relationship Maloney. The chase did any hypothesis other factorily explained ugly criminality uncover evidence of compensatory bias. The evi- than that of Maloney, mob ties of both McDonnell and always specific. be case dence need nothing but that bore on the issue of com- part of Maloney deposed as the dis- pensatory except dispel suspi- bias— on remand. Had he tes- covery conducted Maloney appointed cion that had McDon- practiced compensatory had tified that he nell to make sure that would be in which he had not the cases all convicted, or that McDonnell had tried to bribed, testimony had been and his been curry throw the case order to favor with believed, presented had been evidence Maloney. found that McDon- practice compensatory conspiracy of a practiced nell had never law with every in which no bribe was bias in case pulled punches and had no in his defense evi- judge, offered to the absence of Bracy. finding clearly This is not erro- rulings the motive for his dence about neous, wipes and so it binds this court and particular trial defendants who had theory out the of bias that was the focus of (It would not be fatal. not offered bribes Supreme Court’s discussion of the matter if he didn’t remem- wouldn’t even discovery. need for all.) All trial at that had to be ber the during It is true that his allocution be- proceeding established in the remand being spoken fore sentenced ordered, in order to Court of the convictions and sentences ordering Bracy, a new trial for justify and Collins as “a credit to his record as a inferring a factual basis judge and evidence that he was not cor- probably against an actual bias did harbor rupt,” F.Supp.2d and that this him. (id. 908) led the district to find inferred, however, That could not be Maloney (cid:127)during petitioners’

from the fact that took or time bribes same case fact, fact, pending, pending from the if it was a that he was other were even cases bias, bribes, practiced compensatory may Maloney particu- for he in which took every larly not have done so in case. We do not the close in time Chow and Rosario case; time, practiced know whether he it in cases. Before and after this Malo- unlikely in a prac- ney engaged pattern and he would have been was of receiv- every thought ing money. tice it in case. If he that a Based on the in evidence record, possible it defendant was certain to be convicted and is a and reason- sentence, he in receive a severe would have able inference this case that Thomas motivated, prose- part, in no incentive to lean favor of the was at least jeopardize prosecution-oriented by doing cution and so con- to maintain atti- by making pro-prosecution viction or sentence it more tude and to make rul- suspicion In appeal. gen- ings vulnerable to reversal on desire to deflect from accepted he corrupt judge eral a criminal has no need cases which bribes. Oth- to lean er documented instances of so against criminal defendants who him, suspicion to deflect from his cor- acting not bribed because most crimi-

423 Collins; was, there no nipt reported are the Haw- indication that he conduct was, thought suspicion kins and Titone cases. or he under at the time of that trial. however, conjecture, naked This is of a valid factfind so cannot be the basis The district based his conclusion Industries, Vining v. ing. Libman Co. largely about motivation on the (7th Cir.1995); Inc., 69 F.3d 1363 “Government’s Official Version the Of- Givens, 88 F.3d 613 United States v. in Maloney’s fense” submitted criminal tri- (8th Cir.1996); Washington, Thompson document, parties al. This which the refer (4th Cir.1959) (per F.2d 148-49 sentencing to as the recommendation or Estate, curiam); In re Kuttler’s 185 Cal. memorandum, sentencing is also the cor- Cal.Rptr. (Cal.App. App.2d appeal. nerstone of the it the Justice 1960) (“an on may inference not be based (whom Department accused alone, specula suspicion imagination, or on “degenerate” called and “a mafia facto- surmise, tion, supposition, conjecture, or tum”) practicing compensatory bias. finding A of fact must be guess work.... consists, however, The document of 57 sin- from rather an inference drawn evidence gle-spaced pages, allegation and the speculation probabil than ... a mere as to compensatory appears just one of evidence”). ities without It was natural (“THOMAS them. It is colorful MALO- Maloney, sentencing accept for at his for surpassed category NEY far of cor- defendants, criminal in ing bribes from rupt jurist territory chart new cases, cluding defendants murder defilement”), vivid, plausible. even But no him in point to a case before which the substantiation or elaboration is offered. murderers had been convicted and sen Maloney may No cases which have en- death, he, though jury, tenced to cited; gaged compensatory are no had convicted them and had made a rec evidence, circumstantial, direct or admissi- him ommendation for death that bound inadmissible, ble or that he engaged ever (“recommendation” misnomer). is thus practice in the is offered. The Justice presided It does not that when he follow Department pressing very long thinking trial he of how the defen (more years), and it sentence than dants’ convictions and sentences pulled stops. out all the off future accusations of tak stave bribe Despite this “evidence” of ing, they might dispel suspi or even how the district concluded that “the cions of it—if he was even aware at that evidence does not establish that an interest time, career, early taking his bribe covering up wrongdoing motivating any suspicions; probably there were larger payments pervaded every ac- bribe not, continued or he would not have by Maloney judge. tion taken as a Malo- taking years. for nine more bribes ney’s taking bribe has not been shown to judge gave two cases the district as exam judi- pervasive part have been so of his ples Maloney’s suspi to deflect “acting practices cial it can be assumed he corrupt cion from his conduct” are cases in always, usually, by or even motivated bribes; accepted in he which one pecuniary penal his interests when returned the because he realized bribe and/or exhibiting prosecution-oriented tenden- investigation that he was under and in the added). This (emphasis cies.” Id. at 909 anyway. other he convicted the defendant important finding, being not is an which anything Neither case had to do with com (as clearly requires erroneous binds us. It pensatory bias. He returned the bribe already made years Bracy after the trial of and the Court had five clear) sue, very it difficult how compensatory bias was because to see evidence harmed, rather than in case. It forbids us to rest he would have been at work compensatory helped, by Bracy evidence that presumption on a every case which a than he. And so it is was at work worse murderer tried before ruling defendant difficult to see how the could be convicted. thought But all this to evidence of bias. side, upholding one there is no basis finding, the district light In the of this Bracy’s and Collins’s convictions but set- required to do examined judge as he was ting aside their sentences. The incentive Bracy trial of Maloney’s rulings compensatory stronger engage bias is phase guilt and found none Collins guilt sentencing at the trial of than at the con- displayed of the trial that bias. He hearing. Most criminal defendants are cluded that the convictions were untainted. convicted, a judge reputa- so who wants a The is correct. For all that conclusion sentencer, a tough tion as either to induce prosecution appears, Maloney was mind- charges lenity, bribes or to avoid of undue unrelated to his tak- ed for reasons rulings will have an incentive to make fa- accept That he would bribes to ing bribes. prosecution, vorable to the so that acquit imply any criminals does not affec- triple- defendant will not walk. Had these tion for criminal defendants or their law- eye- murdering acquitted, defendants been yers have acting such he must been brows have But been raised. in favor of against character when he ruled imposition of the death sentence is a mat- prosecution in cases which he was grace jury. ter of to be determined appalling, not bribed. His conduct was Maloney would not have been “blamed” if depraved, bridge character but the to the jury had exercised its unreviewable Bracy missing. trial of and Collins is power lenity and declined to recommend However, turning Maloney’s rulings sentencing Bracy and Collins to death. trial, sentencing phase at the of the know, sequel For all we that is a common compensa- district found the taint of in capital to the conviction of defendants (or tory only ruling pair The bias. eases Illinois. rulings) he mentioned was re- only thing The on which Evans sentencing hearing fusal to sever Collins’s hang can the distinction between the sen- Bracy’s from hold it first in order to phase phase tencing guilt give lawyer Bracy’s prepare more time to trial, try Bracy moreover—the refusal to hearing. ruling for his client’s is said separately and Collins before the Su- harmed Collins because meant —was preme remanding Court the case when jury that the would hear evidence about to us it made clear that Collins additional murders that had com- prevail Arizona, discovery could disclosed mitted murders in which Col- compensatory evidence bias. It did not. implicated. (Bracy lins had not been yet mur- been convicted of the Arizona There is a lot of “death is different” talk ders; was, later he and he was sentenced opinion. in Judge Maybe Evans’s death; pending.) that sentence is suggest wishes to meaning capital-sentenc- Collins had not raised the issue of sever- has a different ance in appeal, ing proceedings. his state-court and as than in other That’s a position rejected result it Bracy’s lawyer was treated as forfeited the own at corpus proceeding. federal It is en argument. emphatic habeas the banc He was surprising compensatory proved not that he didn’t raise the is- bias if would or for ... not this unfolding.” a misdemeanor conviction did see scene invalidate case; “Maloney deliberately in a civil And: indiffer- judgment [was] matter a Lavoie, petitioners’ ent to the fates.” From Aetna Ins. Co. v. U.S. Life is inferred (1986), “deliberately let 813, 106 S.Ct. penalty hearing this death become a deba- relied, heavily on he was a civil case. which imposition penalty cle because of the death right. litigant A civil and a misde- He was on these men reputa- two would bolster his are entitled to an unbi- meanor defendant tough tion as judge.” judge a But the just capital judge, ased like a defendant. impose does not the death penalty; jurispru- The Court’s elaborate jury Maloney might does. And of course in- penalty dence on the death does not reputation tough judge have wanted a as a special judicial clude a standard of bias for for reasons unrelated compensatory capital only. compensatory cases When bias. And he not have seeking been shown, is entitled losing party bias is reputation a tough judge may as a —he of the nature of the regardless to relief just disgusted by have been these defen- case. crimes, may dants’ or he have been a bad capital The nature of this case is rele- judge, may capital or he have thought only following very in the limited vant punishment right punishment mur- conceivably might be bi- sense: derers, proprosecution or he have been not all stage ased one of case but general principles, things may or all these stages, if there are severable stages, so failing have been true. to canvass phases guilt sentencing such as the of possibilities, Judge opinion these Evans’s capital stage might bias at the last imagination. reveals a lack of Further- If spill stage. back into the earliest more, Maloney’s rulings guilt phase at the out, I anything, pointed Judge as have consistently the trial of also favored likely was more to be biased prosecution, Judge opinion as Evans’s fails against guilt stage defendants at the of the clear; it no surprise to make that Malo- proceeding sentencing phase. than at the ney’s rulings sentencing hearing nothing suggest There is that he was prosecution If Malo- favored well. they indifferent to whether were convicted guilt ney presiding was not biased they were but determined convicted phase despite of the trial his consistent Nothing see that were executed. in leaning prosecution, of the how as favor theory compensatory bias or logic and common sense can a matter of psychology Maloney supports such a suddenly, we have confidence conjecture. Critically, there is no evidence inexplicably irrationally —indeed —became support it. penalty phase? biased at the evidence, plenty No but of rhetoric. quoted that I from language Judge Evans states: “It is more than really points in a opinion Evans’s increasing the likelihood fair inference a conclusion different direction —toward imposition of the death “appearance created Judge Maloney.” would be fine with And: impropriety,” concretely gave that he “Less concern about the fate of the defen- determined to do in appearance being hardly imagined.” ... could dants and Collins. Not need such “Maloney sublimely nothing And: uncon- to do with determination have mitiga- cerned about a lack of evidence but an earlier en credibility opinion “It this court that Ev- pushing tion.” And: banc opinion to discuss we held experienced neglects that an trial ans’s imagine impro judge’s appearance proof that a mere- of sufficient he acted free from it, judgment put render a in viola “As priety does not bias. Blackstone ‘the law will process. suppose possibility tion of due Del Vecchio v. Illinoisnot or favour Corrections, pt. supra, judge, already De 31 F.3d in a who sworn to admin 1371-72; at impartial justice, authority see also id. where this ister and whose ruling Appearances greatly depends upon presumption is elaborated. and ” Lavoie, suspicions going are all that the court has and idea.’ Aetna Ins. v.Co. Life 813, 820, 1580, 1584-85, it in for this case. 475 U.S. 106 S.Ct. (1986),quoting 89 L.Ed.2d 823 3 W. Black judgment The of the district court stone, Commentaries, at *361. Here we upheld it should be affirmed insofar as sweep cannot human under rug. nature convictions but should reversed inso- simply try did not but fail to far it invalidated the sentences. justice impartially; administer he deliber ately repeatedly and oath of ROVNER, abandoned his ILANA DIAMOND Circuit neutrality gain. for his own We know that RIPPLE, Judge, DIANE P. with whom Maloney accepted to fix WILLIAMS, bribes at least WOOD, Judges, and Circuit cases, four and the hundreds of thousands join, and concurring part dissenting expenditures of dollars in which part. reported income does account raises give This case demands that we concrete possibility the distinct were these meaning justice to a cornerstone of our merely tip iceberg. R. 161 See system-an impartial judiciary. right 53, 54; Welborn, Exs. Collins v. undisputed. to a fair and unbiased ¶ (N.D.Ill.1999). F.Supp.2d 907. 40 899, 904-05, Gramley, 1793, 1797, 117 S.Ct. Ironically, the fact that was a (1997). But as with constitutional corrupt judge makes it harder rather than safeguard, proof of right lies its easier for us to decide whether he was an Passman, Davis v. enforcement. See impartial petitioners’ decisionmaker in the 228, 241-42, U.S. 60 case. given The evidence has not us a L.Ed.2d 846 Here we are asked to mind, direct look into so we was, actively decide whether a who no way knowing for certain wheth- (and was) engaged bribe-taking could be er position acted from a of bias or impartial in where no case bribe impartiality when presided over the tendered, pe- or whether his financial and trial of and in- Collins. We must nal interests tainted decision-making his. trial, rulings stead look to his and to the money changed even when no hands. circumstances surrounding his bribe-tak- Any inquiry into what a judge ing, disposi- motivates for clues as to his motives perilous. concept justice to rule is Our tion. And the absence of evidence depends impartial judi- on the definitively dispel possi- notion of an can confirm or ciary, yet impartial- bility presents we know true of bias us with a choice ity in a judge aspira- is no more than an unappealing between two courses of action. Judges tion. beings, are human can infer from the so We circumstances that they completely can never Judge Maloney’s corruption transcend the him rendered experiences per- partial limits of their petitioners’ own and vacate the convic- case, then, spectives. tions, step the usual we that will necessitate a retrial abstain from looking judge’s many years behind a rul- after were convicted. To ings, content to way thinking, treat his oath of office as Posner’s this sim- cases, compounds wrong Judge the that Ma- thousands of ply recognizing his by accepting impartiality presents committed bribes. lack of loney one ease Or, prospect at 419. in the absence of direct the that all of the Ante cases he han- Indeed, proof cling we can to the notion dled must be vacated. that un- judge prospect was a fit and fair so that comfortable is the one and say justification not To that a long as he was bribed. that has been offered over the long history the constitutional litigation concluding serial bribe-taker meets of this for however, impartiality, is a that a thoroughly corrupt judge standard amounts pill Judge appro- hard to swallow. Evans to a constitutionally acceptable decision- priately why decision-making acknowledge asks the of maker. We that Maloney’s corrupt judge any protection is entitled to conduct was that appalling, his crimes office, contempt at all. Ante at showed for say but we nothing why, doctrinally, judicial about I question submit would be racketeer should be considered a fair and much easier to answer if we were asked to impartial decisionmaker. Suppose decide it ex ante. for a moment cases, jurisdiction course, that a our judge district within most may simply we day presume announced on his first of service that judge impartial. the trial McClure, impartial E.g., he was sworn to be and that he Schweiker v. give parties

would a fair trial unless him, But, the defendant wished to Supreme bribe as the Court has give leg which case he would the defense a recognized, presumption has been up. essentially Judge That is how “soundly Posner rebutted” in view of postulates Maloney operated history corruption. extensive Bracy, —that parties 908-09, gave the a fair trial unless bribed 520 U.S. at 117 S.Ct. at 1799. The otherwise; just dissipa- to do did Court concluded that the bribe-taking not presumption “good announce to the world. tion of the amounted to imagine hypo- But for a moment that our cause” which entitled and Collins to discovery thetical did. If a defendant unwill- they might attempt so that ing 908-09, to tender a bribe —or for that matter show bias. Id. at 117 S.Ct. at the prosecutor sought appropriately mandamus com- 1799. As Evans rec- — that, announcement, plaining ognizes, starting view of the it also establishes impartial point did not constitute an for our review of the results of that decisionmaker, I much very discovery. doubt that we Ante at 409. deny request would admonition however, further, proceed Before we we tendered, long that so as no bribe was must ask who bears the burden of estab- parties nothing worry about. The lishing Maloney’s impartiality or lack

judge’s removal from the case from thereof, given presumption of im- bench would be swift certain. partiality already has rebutted. Both been inquiry by Judge Our this case is burdened Evans and Posner assume Judge Maloney’s bribe-taking petitioners’ the fact that that it is the burden to show exposed until after he had been a bias. See ante at 420-21. Given the many years. trial judge question fundamental nature of the constitutional than really right question gravity is no different the one we and the of Malo- misconduct, however, my hypothetical, ney’s would have to I answer wonder weighty. right. among but are more that is ramifications Judicial bias is Maloney presided disposition implicate over the of kind of structural errors which greater far resources— fundamental fairness of the trial State —which has

both the society’s perception integrity supply adequate proof us with of his Harbin, v. process. See United States impartiality? Cir.2001). (7th 532, 543 Conse 250 F.3d opinion recognizes a cate- Our Harbin proven quently, judicial requires gory occupy of trial errors that a middle reversal; notes, automatic as Evans errors, ground the usual kinds of between subject to harmless-error review it is not subject are which to harmless-error re- 414; Ante at see most trial errors. like view, errors, which structural are con- Louisiana, 275, 279, v. 508 Sullivan U.S. clusively presumed prejudicial to be 113 S.Ct. therefore in automatic reversal. 250 result Ohio, 510, (1993), citing Tumey v. errors, F.3d at 543-44. These are serious 437, 445, 71 749 L.Ed. jury tampering, like which create obvi- course, Here, of the issue is whether bias significant potential prejudice, ous and for In the has been shown. usual are, time, but which at the same difficult petitioners’ would be the burden to make prove for a defendant to harmful. In such Schweiker, showing. 456 U.S. cases, prejudice presumed but not con- Yet, recognize 102 at 1670. we all S.Ct. clusively government can show that difficulty peering the inherent into the —if resulted, no harm then corrupt judge mind of a the conviction will assessing partic whether he had a wish to see these stand. Id. at 544. petitioners ular convicted sentenced and/or corruption I submit that the of the trial 411-12, 421; to death. Ante at see Cartal category falls into this of errors. (7th Washington, 122 ino v. F.3d Maloney’s willingness repudiate Cir.1997). given Not surprisingly, Malo- impartiality by oath of repeatedly accept- ney’s ongoing protestations of innocence ing question ability bribes calls into his and the invocations of the Fifth Amend fair in case. See ante at 411. If he cohorts, among Bracy ment and Collins help was inclined to the State when not have not secured an that Malo- admission camouflage corrup- bribed —whether to

ney invariably engaged promote po- tion or to future bribes —the particular bias or that he did so in this prejudice tential to a defendant who did they case. See ante at 421-22. What him bribe is obvious. Yet as this case shown, however, that Maloney en clear, altogether proving makes the man- gaged pervasive pattern corruption extremely of that ifestation bias is difficult. that was in full flower when came assign proof peti- To the burden of to the before him: Recall that and Collins may tioners therefore be unrealistic and shortly were tried before com improper. Maloney repre- was the State’s People menced the notorious trial of sentative. See ante at 411. His bribetak- Chow, paid acquit in which he each ing wholly beyond petitioners’ of the three defendants of murder. See State, knowledge ¶¶ and control. If the Collins, F.Supp.2d establishing the face of evidence that Ma- naturally are reluctant to embark on a We bounds, loney’s corruption knew no wishes path theoretically might lead to the validity to defend the of the convictions undoing every one of the thousands of presided, cases over which he Maloney presided. over which But then the burden possible arguably upon if it Maloney, when not should fall it to affirmative- bribed, provide parties ly with a fair establish that awas fair and trial, why up impartial should it not be to the when not bribed. murders, Arizona mo- proof assigned is to be Collins’ alternative If the burden severance, Evans and petitioners, Judges Bracy’s tion for a alterna- be, that it should then Posner both assume continuance; tive motion for available to them proof the limits of the actively discourage efforts to McDonnell panel recognized. must be When making closing argument from at the following in this ease arguments heard oral penalty hearing; stop and his failure to remand, I asked the State’s counsel (even McDonnell in the face of the State’s might successfully how and Collins objections) from engaging a tirade prove was biased. against penalty, the death a tirade which counsel conceded that such a show- State’s prosecution argu- invited the to make an make, impossible all absent ing was but ment might that constituted revers- Maloney himself or a an admission from ible error had the defense not invited it. obviously pattern of courtroom conduct so Ante at 416-19. plain. as to make his bias askew difficulty for the is obvious. reason With- contrast, Judge analysis By Posner’s mind, Maloney’s into glimpse out a direct premise proceeds judge’s from the for indirect and incom- we are left to look compensatory bias must be established di- plete Maloney’s clues as to motives. See ante inferentially. rectly, rather than premise that a Proceeding from case-spe- postulates at 421-22. He that a indirectly, ante judge’s may be shown cific bias could be in the same man- shown 411-12, Judge Evans locates some facts at Cartalino, that it in 122 F.3d at ner possibility raise the which 10, where there was evidence that compensatory, camouflaging in engaged judge agreed acquit one defendant appointment in Maloney’s this case: and to do what he could to secure the McDonnell, a two-time felon and “outfit” of complaining of co-defendant. conviction Bracy; his citation of lawyer, represent Ante at 422. the trial record Or (along the convictions of and Collins pattern rulings blatantly reflect a so Fields) with those of Hawkins and at his slanted favor of the State that cannot sentencing purported proof that he own as any theory other than explained by judge; Maloney’s an un- honest Ante at 422. Alterna- compensatory bias. successful effort to secure an affidavit might prove, tively, petitioners through that it Bra- asserting from McDonnell testimony own corrupt judge’s cy, Maloney, not who chose McDonnell. evidence, through unspecified other Ante Collectively, at 413-14. these facts con- had resolved to secure the suggest Maloney may have been look- of all defendants who did not bribe victions prosecution ing Bracy-Collins at the as him. Ante is no such evi- There bribe-taking, if not opportunity to hide his Posner, here; Judge and for dence Although to cultivate additional bribes. inquiry. Maloney engaged That ends our Judge sign Evans detects no that such a alone, bribe-taking does not pattern during the compensatory bias was at work view, permit the inference that he trial, guilt/innocence phase of the several Ante compensatory engaged ever bias. him suggest circumstances that Malo- proof 421 Nor does that he harbored ney may indeed have abandoned his “sol- permit the infer- such bias some cases responsibility” to assure the fairness emn indulged such bias ence that phase. Ante at 415. These end, Id. Judge case. Posner con- Bracy’s summary include the denials of cludes, point to is the regarding all that the court can motion to exclude evidence So, appearance, as what appearance of we consider the record tells us mindset, Maloney’s in Del as this court held Vecchio Illinois about we cannot resort (7th Corrections, Dep’t any tie-breaking presumption impar- 31 F.3d 1363 Cir.1994) (en banc), denied, tiality ambig- cert. in the face of evidence that is permits 131 L.Ed.2d 290 uous or conflicting S.Ct. inferences (1995), permit does not alone us to invali about motives. petitioners’ date convictions. Ante at contrast, By Judge analysis Posner’s 425-26. judge’s corruption treats a a variant but view, ownership: In my long Evans and of stock So as a did right part. Posner are both Ultimate- acquire concrete interest the ac- —in however, my attempt ly, colleagues quittal both of or conviction of the defendant bribe, Maloney’s wrongdo- pocketing to cabin the effects of there is no reason to ing ways that are inconsistent with the think that judgment was tainted. In- stead, corruption petitioners supply nature and extent of his and the must us signs bias that the judge’s impartiality. evi- reason to doubt the Cartalino, supplies E.g., dence us. Actually, F.3d at 10. Judge Maloney’s pattern gives of bribes us Judge analysis displays prag- Evans’ compelling ability reason to doubt his to appreciation matic for the nature of Malo- fair, competent judge be a even in cases ney’s wrongdoing. Although point the money changed judge where no hands. A obvious, may seem one cannot conduct a repudiate cannot his oath of office proper compensatory search for bias with- bribe; completely by accepting more than in having out mind the basic nature of fixing a case is judging. the antithesis of Maloney’s criminal conduct. Maloney did The notion that a corrupt judge even will simply experience momentary ethical give parties the a fair trial —unless the lapse, commit a or crime unrelated to the proof affirmatively shows otherwise —nec- job judging. position of He used his as a essarily hinges upon pre- some sort of judge reap (apparently) hundreds of sumption impartiality. resorting of Among thousands of dollars bribes. aid, however, Posner, Judge who finds uncomfortably large group judges of con- many points by so other resolved the Su- victed of bribe-taking County, Cook he case, preme opinion in Court’s over- being holds the distinction of one looks one about which the Court could not proven the United States to have ac- presumption have been more clear: The of cepted bribes in murder cases. See Re- impartiality normally attaches to a Sentenced, Judge tired National Law judge’s “soundly conduct has been rebut- Aug. at A8. The utter Journal, ted” in this case underlying facts contempt pattern that his of crimes shows Maloney’s conviction. 520 at U.S. office, for the duties of his in particu- longer S.Ct. 1793. We no lar concept judicial for the of impartiality, upon. crutch to lean wholly any presumption eliminates that he was a fair and judge presumption decent when not impartiality With pocketing money. Bracy, having See Judge U.S. been removed from the 909, 117 S.Ct. at 1799. This turn de- Evans is correct to recognize that Malo- prives the State of the benefit of ney’s may indirectly. the doubt bias be established respect with ques- evidence that raises See ante at 412. The evidence available to tions about propriety Malo- Judge simply and Collins does not afford ney’s trying Bracy actions glimpse Collins. them or us a into mind. was, bribe-taking, possibility corrupt that the judge not admit to his Maloney will fact, indulging in compensatory let alone discuss what his motives were bias. judge If there are All that the need do to avoid creat- he was not bribed. when may ing he have discussed the kind of record that Posner others with whom mindset, they keep are either unknown or envisions is to his mouth shut about compensatory to reveal what know. So his bias and to refrain unwilling from making rulings. upon look for direct clues as to the bizarre Insistence we must less presence proof consequently or absence of bias elsewhere direct would foreclose involving corrupt the evidence. relief cases careful but judges unwilling expose who are their bias, proof By insisting upon direct compensatory own bias. deny relief Judge Posner would whenever agree lack an unobstructed view into I therefore parties Evans that corrupt judge’s proof mind —even the evi- the search for bias indirect, direct, may, in must suggests dence otherwise bias include as well as fact, present. proof signs of bias of such and that the record in have been proof virtually supplies that in adequate signs demands this case us with corrupt during all cases must come from the that such bias was at work (1) capital phase must Bracy’s himself. The either and Collins’ trial. (2) oath, analysis appropriately recognizes to the under admit His confess point co-conspirator, corrupt judge may pro- at some to a subvert the trial proves willing repeat simply by offering who later the ad- cess not affirmative as- (3) oath,1 other, pat- party mission under render a sistance to one or the but also blatantly preserve the to rulings favoring by failing tern of so the balance between prosecution explained litigants that cannot be to the and ensure that a criminal by any hypothesis rights neglected. other than Each defendant’s are not bias. See proof point direct of is unavail- ante at He is correct to of these forms 415-19. also argu- not admit to hav- out that the lack of a neutral arbiter able here: will bribe, any ably poses greatest the threat to the de- ing single taken a let alone to bias; partners rights penalty phase at the of a form of his former crime fendant’s trial, capital inquiry the turns from have either invoked the Fifth Amendment when motives; pleaded relatively of and determina- ignorance straightforward his the of not the defendant com- although rulings consistently his favored tion whether or State, of Judge points question the Posner himself mitted a crime to the whether crime, out, 425, they blatantly or not he should die for that ante at are so bespeak profound them- determination that turns on a suspect as to and of (The subjective largely means of es- assessment of entire selves. sole alternative history, psycho-social criminal the context tablishing Judge bias that Posner cites—a history, defen- of that the effects his crimes have Cartalino-like scenario which one others, prospects him for reform acquit upon dant bribes the both to co-defendant-obviously redemption, and so forth. See id. at and to convict his one, backdrop, I believe Against will not be available in a case like this hands.) concludes, as did money changed Judge rightly no has But Evans where Hart, Judge Judge may that bias be inferred proof the lack of the kind of Maloney’s handling pen- of the Judge no means rules out from Posner envisions corrupt only way in one or more cases without the 1. This is the that I can see to estab- practice compensatory judge's testimony. own See ante at 422. conspiracy lish a to Braey-Collins important trial. The sions are more than alty phase of the the choice Judge upon might Evans seizes poor flaws trial counsel. one’s However abstract, not, compelling in the seem like skills, attorney’s preparedness, level proof presumption to enough overcome appear tactical decisions to be retro normally to a impartiality attaches spect, range representation deemed But, again, presump- judge’s rulings. constitutionally adequate is wide. Strick gone analysis tion is from this case. Our 668, 689, Washington, land v. U.S. proceed attributing must therefore without S.Ct. Maloney any goodwill to we would wholly lapses by Even inexcusable an at presumptively judge. to honest assign torney may be deemed harmless once his rulings Judge and remarks that Evans client has been convicted. id. at See particular, Maloney’s cites—in decisions to (to at 2064 S.Ct. succeed on ineffec testimony regarding allow the Arizona claim, tiveness defendant must show not evidence, deny murders into to a sever- performance that his counsel’s ance, continuance, all deny with- deficient, attorney’s but that errors (un- reasons, out articulated and his defense). prejudiced felony With two successful) discourage Bracy’s effort name, convictions to his an evident ethical closing lawyer making argument from impairment, organized connections (when jury’s choice of crime, hardly McDonnell was an obvious death!) reasonably sug- between life and — appointment rep candidate for a court gest had abandoned his role charged capital resent someone with a of as a neutral arbiter. If there are other fense-unless, perhaps, appointing opposite facts that tilt the scales (or worse, judge was uninterested malevo show, affirmatively direction—which interested) lently quality repre words, that Maloney attempting other sentation that the defendant received. give a fair penalty defense hear- announcement, just McDonnell’s three ing Judge the State nor Posner —neither appointed, weeks after he was that he was context, has cited In that I agree them. ready for trial further an already- raises Hart Evans that did not eyebrow. elevated McDonnell’s failure at clearly err finding penalty the capital phase present the of the trial to a phase of the trial reflects scintilla of mitigating evidence that would Maloney’s part. bias on imprisonment warrant than rather execu I Judge But think that Posner is right to tion, any argument and his failure to make question plausibility inferring the against imposition penalty of the death capital phase as to the biased generalized other than a upon capi attack of the trial not guilt/innocence but the punishment, tal Washington, see Hall v. out, phase. Judge points Judge As Posner (7th 742, Cir.), denied, 106 F.3d 750 cert. Maloney’s rulings guilt phase at the of the 907, 264, 522 U.S. 118 S.Ct. 139 L.Ed.2d trial consistently prosecution, favored the (1997), 190 raise obvious doubts about his just they penalty phase. as did at the overall given shady effectiveness Ante at I that a 425. would add number of and-— Maloney’s appoint decision to rulings phase the at guilt signifi- the credentials — place. him in the first The rationale for cant effects on the trial. the course of Not confining finding capital the the the among rulings least these was Malo- (which ney’s phase of the trial sought pin decision he later therefore remains elu 414) Bracy, see sive. The fact that appoint ante a defendant’s life is at McDonnell as Bracy’s lawyer. capital Few deci- stake in a proceeding may well

433 duty to maintain the number of answers to a judge’s question the are heighten possible, and that the answer is left to parties magnify best balance between the the assessment of the judge. Abuse of to do resulting harm from his failure typically discretion is found not when the so; however, judge enjoys no less dis- judge fails to render “right” ruling, but (or matter, non-capital in a for that cretion applies wrong when he or she legal noncriminal) proceeding and has no less standard, facts, ignores crucial or rests ability of an to exercise discretion ruling inappropriate on irrelevant or fac way as to steer the outcome to a such Inc., E.g., Ty, tors. Inc. Group, v. Jones particular result.2 (7th 891, Cir.2001); 237 F.3d 896 United Indeed, of a judge’s the extent discre- (7th 719, Tingle, States v. 183 F.3d tion, provides and the cloak that discretion Cir.), denied, 1048, cert. 528 U.S. 120 S.Ct. judge’s Judges for a are matters 584, 145 (1999); L.Ed.2d 486 United States underestimate. Posner Evans both McDowell, (7th 974, v. 117 F.3d 978 n. 4 question any Neither finds reason of Cir.1997). Indeed, long ap so are guilt/inno- Judge rulings plying right law and considering the trial, phase of the and although cence factors, judges may relevant two confront Judge questions Evans number Malo- problem the same and render different phase, ney’s rulings at the rulings having without either one of them rulings perfectly Posner finds even those abused their or discretion committed clear discretionary rulings defensible. But are Williams, error. United States 81 F.3d (7th an unreliable barometer for the bias of the 1434, Cir.1996), denied, cert. judge. rulings rarely trial Such can be U.S. 118 S.Ct. (1997),

labeled “correct” or “incorrect” in the and cert. denied sub nom. Bates v. States, only proper ruling sense that there is one United particular set of circumstances. The possi L.Ed.2d 662 “That very concept bility implicit concept of discretion assumes that in the of a discre- handling Maloney's suggesting I would note that that either McDonnell closing arguments guilt/innocence at the trying Frazin —he wasn’t sure which—"is trial, phase capital phase, as well as the you,” to hoodwink id. at 1354. arguably supports compensa- an inference of Having given been such free rein at the tory closing at work. As the State’s first trial, guilt phase of the it comes as little argument asking jury to a built conclusion surprise during closing arguments at the defendants, prosecutor to convict penalty phase, prosecution argued (whom turned his attention Collins from capital that McDonnell’s criticism of had called vicious and cold and “a[s] calcu- punishment slap every was "a veteran’s created,” lating good a killer as the Lord ever face,” 1646, R. at has 23-6 Evans bad,” 1300) Bracy (just R. 23-5 at "as id. out, pointed hut also that and Collins 1301) attorneys. noting at to their After of death themselves would think sentence duty colleague it was his appropriate: fair and State, represent prosecutor the the continued: you thing, gentle- I will tell one ladies and (Col- responsibility It is the of Mr. Frazin jury, you men of this if come back with a counsel) killer, represent lins’ and it this decision that the death should be (Bra- responsibility is the of Mr. McDonnell imposed, guarantee you Roger I Col- cy’s attorney) represent killer. this Bracey lins and William won’t feel it is [sic] objection Id. at An overruled. Id. an unfair decision. point, prosecutor At that the felt free to com- that,” complained "Objection to Id. at 1654. upon mence an attack tactics, the defense counsels' improper,” McDonnell. Id. "I think that is encouraging jury to "think about overruled,” "Objection get lawyers up echoed Frazin. Id. the facts that these two here you,” Judge Maloney's response. Id. and mimic and mock and demean id. at

434 813, 821-25, 1580, 1585-87,

tionary judgment.” Id.,citing Rice v. 106 S.Ct. 89 909, (1986), Corp., Nova Biomedical 38 F.3d 918 recognize L.Ed.2d 823 that circum (7th denied, Cir.1994), 1111, 514 cert. U.S. give judge stances which a stake in the 1964, 131 855 S.Ct. L.Ed.2d present outcome of a cause her with a Rulings justifiable that on face are their temptation party to favor one or the other. tell little about whether com therefore us any inquiry These cases disavow into pensatory judge’s bias was at work in the judge yielded whether the fact to the Likewise, a decision-making. judge may temptation. contrary, To the each discretion, may abuse his even commit a acknowledged pos Court errors,” “veritable avalanche United not, sibility judge question that the Santos, (7th 953, v. 201 F.3d States 825, fact, biased. Id. at at 106 S.Ct. Cir.2000), being without there reason to 1587; Murchison, 136, 349 U.S. at 75 S.Ct. suspect was at Judges work. 625; at also at see id. 75 S.Ct. at 627 mistakes, Bias, period. make when it is at (Reed, J., dissenting); Tumey, 273 U.S. work, necessarily will not announce itself Instead, 47 S.Ct. at 444. the Court judge’s ruling either the or his rationale. possibility found the mere judge 254, 263, Vasquez Hillery, See might yielded temptation to the suffi (1986) cient to vacate judgment: (“when the trial judge is discovered to process [T]he of due of law requirement rendering have had some basis for a bi judicial procedure is not satisfied judgment, ased his actual motivations are argument that men highest of the review-”) (emphasis sup hidden from greatest honor and the self-sacrifice plied). corrupt judge A who wishes to carry could danger on without of in- against stack the deck party may cite justice. Every procedure which would plausible rulings yet reasons for his possible offer a temptation to the aver- make purposes; his decisions for illicit it is age man as a to forget the burden easy imagine that a with Malo- proof required to convict the defen- ney’s experience would not find it difficult dant, or which him lead not to to cloak any, way. That nice, clear, hold the balance and true Maloney’s rulings at phase either between the state and the accused de- is, trial therefore appropriate seem —that nies the process latter due of law. within range us discretion —tells Ibid, about whether rulings little those were (emphasis supplied); see also Aetna by compensatory infected bias. The Life, 475 U.S. at 106 S.Ct. at 1587 objective observation we can make with (“The Due ‘may Process Clause sometimes certainty is they consistently favored by judges bar trial who have no actual bias the State. and who would do their very weigh best to justice equally scales of between con- difficulty inherent piercing ”) Murchison, tending parties.’ (quoting judge’s exercise of discretion is what has 625); 349 U.S. at led me to S.Ct. Murchi- temptation-to- conclude that the son, (“our U.S. at 75 S.Ct. at 625 superior framework is a means of system analyzing petitioners’ always of law has claim. Cases endeavored Ohio, 510, 532, prevent Tumey probability such as even the of unfair- 273 U.S. ness”). 437, 444, (1927), 47 in Implicit S.Ct. 71 the Court’s L.Ed. 749 rationale is Murchison, 133, 136-37, re recognition 349 always U.S. 75 that we cannot 623, 625-26, (1955), know, S.Ct. 99 hindsight, L.Ed. 942 and a judge whether con- Lavoie, Aetna Ins. Co. v. 475 U.S. fronted with such an incentive orwas was Life

435 263, precipitous steps take even to Vasquez, 474 U.S. at hide his impartial. Tumey, Thus, at (citing at 623 U.S. bribe-taking. 106 S.Ct. he returned 445). inability 535, at Given the $10,000 47 S.Ct. he given acquit bribe had been to fact, possibility to rule out bias and Hawkins Fields and then convicted lingers, undermining confidence such bias them; Titone, and in he went so far as to Ibid.; judgment. see also Murch in the $10,000 keep the bribe but convicted (“to ison, 136, 75 S.Ct. at 625 U.S. anyway. Judge defendant insists Posner way, function in the best perform high its “[njeither anything that case had to do appearance jus ‘justice satisfy must bias,” 423, ante at but tice’”) States, v. United (quoting Offutt ignores findings this that state 11, 13, 99 L.Ed. 11 in vacating courts rendered the convictions (1954)). case, I submit that this like Tu- those cases. The Illinois Murchison, Life, presents and Aetna mey, Court found that Hawkins and Fields were bias, temptation to and or not whether Maloney entitled a new trial because Maloney actually by motivated had been motivated to convict them in really See bias cannot be known. that suspicion order to deflect from himself. 263, 106 Vasquez, 474 U.S. at S.Ct. Hawkins, People v. 181 Ill.2d 228 Ill. True, the case does not involve a case- (Ill.1998) Dec. 690 N.E.2d specific, purely financial as (“[Maloney] wanted to insure that he did Neither, Ante at 421. points Posner out. judicial post salary not lose his as a add, I does it involve an honest would indictment, result of criminal and therefore effort to abide judge making good-faith was motivated to return a verdict Maloney’s pattern oath office. by his spark suspicions would not of authori coupled possible bribe-taking, with the ties”). Similarly, ordering a new trial temptation to the State in cases favor Titone, Judge Strayhorn implicitly for but where no bribe was tendered —in order unmistakably acknowledged Maloney encourage de corruption conceal his had an incentive to convict Titone order promotes lingering to bribe fendants him— camouflage corruption. R. Peo validity judgments doubts as to the Titone, ple v. No. 83 C Post-conviction presided. The discomfort is over which he (“Dino Titone not receive the Tr. at did of the court’s evident the divided nature fair, fair, impartial trial kind of before opinion today. unbiased, judge that his constitu impartial course, skepti- Judge Posner remains Of True, rights required.”). tional as a citizen any incentive to lean Maloney cal that had Maloney yielded neither court found that at 420-21. in favor of the State. See ante incentive, proof for the direct nec corrupt judge that a Again suggests actual, compensatory essary to establish just to hide his bribe- likely just lacking there as it is here. by cultivating pro-defendant repu- taking Theoretically, possible it was tation, ruling or other acquittal so that an Hawkins, Fields, Titone fair tri gave suspect. paid for the defense looks less notwithstanding the bribes als know, however, Ante at 421. We But the incentive to con been tendered. adopt a defense Maloney did not consistent in them in order to serve vict camouflage corrup- leaning in order present, avoiding terest detection was long reputation had a tion— in to that possibility gave that he Yet, being tough, judge. State-oriented true that incentive was real. It also quite con- we also know that Titone, Hawkins and willing to unlike exposure, cerned about and was Yes, might invariably there was no bribe tendered that must be shown. the Court eye government in- granted petitioners have attracted the right to discov- vestigators. Yet William Swano’s testimo- ery they might so that establish actual ny suggests Maloney practiced com- bias, in confining scope but of the case pensatory precisely in cases like this discovery, the Court declined to consid- one, tendered, was in where no order bribe proof er whether actual bias is the cultivate bribes from the defense bar. means to in judicial corrup- relief a case of Swano, Recall that who had bribed Malo- tion. Gramley, See cases, ney previous a in in withheld bribe (1997) thought the Davis he case because he (granting part). certiorari in strong a case on the merits. To Swano’s reasons, For all of these I believe that surprise, Maloney convicted his client. petitioners’ we must vacate the convictions interpreted Swano the conviction as a mes- temptation as well as their The sentences. sage Maloney payment from was re- Maloney for to favor the State as a means quired in acquittal order to his obtain of hiding promoting corruption and Maloney’s bagman, courtroom. Robert present in this case as we know it was in McGee, appears to have confirmed ac- cases, other and there are signs-including curacy of that construction when he and appointment represent felon to Swano met to discuss a bribe a subse- Bracy, the penalty refusal to continue the quent case. McGee told Swano that Malo- hearing notwithstanding the belated disclo- ney willing to discuss bribe view sure that the State intended introduce of the fact that he had “screwed” Swano in additional murders as an aggravating fac- the Davis case. R. United States v. tor, and discourage Bracy’s the effort to McGee, Maloney & 1994 WL Trial from making closing argument counsel Tr. at Collectively, this evidence hearing-that suggest Maloney Maloney demonstrates that Judge may yielded well have temptation. temptation faced with a favor the State proof More simply direct of bias is unavail- promote some cases in order to both cooperation able without the Maloney or others, bribe-taking and hide his co-conspirators, none of whom has yielded temptation he to that on more proven willing provide or able to it. than Particularly one occasion. view the evidence that Evans has cited Although some of my colleagues fear suggesting abandoned neu- that we will be compounding wrong trality particular in this there is ev- by granting committed ery reason to think that confront- petitioners new trial to who did not bribe temptation ed the same here. That is him, I opposite submit that is true. more than enough, Turney, under Murchi- right to trial impartial judge before an son, Life, and Aetna to entitle nothing means if it is not a right that we Collins to relief. are willing to enforce. It is hard to see why a new trial is warranted

Whether the when an adopt Court will honest reject or is faced with a temptation-to-bias framework financial judicial temptation corruption party to favor one cases remains to be the other- may although temptation seen. is a superior Posner fact (see leaves, Murchison, reader of Turney, tea but I can find no resisted actual holding opinion Life)-but in the Aetna corrupt Court’s not when a case to the Turney presented effect that a penal its as well aas progeny inapposite are and that actual bias financial party. incentive to favor a It is ac- decry Maloney’s for us to enough contemptible, appalling, and de- tions when, at ring Those words hollow

praved. them, we utter we deem

the same time contemptible, appalling, depraved adequate adjudica- constitutionally

man a something, and in process

tor. Due means than

my something view it means more pun-

trial and the infliction of the ultimate judicial

ishment before the likes of a racke-

teer. HIGGS,

James Carl Plaintiff-

Appellant, and James M.

William E. CARVER

Wolfe, Defendants-Appellees.

No. 01-1559. Appeals,

United States Court

Seventh Circuit. 21, 2002.

Submitted Feb. April

Decided

Case Details

Case Name: William Bracy and Roger Collins v. James Schomig and Roger Cowan

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Mar 29, 2002

Citation: 286 F.3d 406

Docket Number: 99-4318, 99-4319, 99-4320 and 99-4345

Court Abbreviation: 7th Cir.