William Bracy v. Richard B. Gramley, Roger Collins v. George C. Welborn

commentary, requires consideration of receiving points un conviction

any prior history guideline, even criminal

der the separately consid was

that conviction 4A1.1(a). Krzeminski’s under section

ered properly assault for felonious

conviction 4A1.1(f), and point under section

assessed commentary 2K2.1 to section therefore setting Krze-

requires that be counted level. See U.S.S.G.

minski’s base offense comment, (n.5). Because Krzemin- § 2K2.1 suggest Application Note

ski does federal

“violates Constitution with,

statute, or that the note is inconsistent of,” reading plainly section

or a erroneous

2K2.1, that note is authoritative and binds States, See v. United

us here. Stinson 37-39, 1915, 123

L.Ed.2d 598

Krzeminski’s is Affirmed. sentence BRACY, Petitioner-Appellant,

William GRAMLEY, Respondent-

Richard B.

Appellee.

Roger COLLINS, Petitioner-Appellant,

George WELBORN, Respondent- C.

Appellee. 94-3801,

Nos. 94-3807. Appeals, States Court Circuit.

Seventh

Argued 1995. Nov. April

Decided Suggestion

Rehearing and Rehearing En Banc 26, 1996.*

Denied June *Judges Rovner, Ripple, grant rehearing petition en banc. and Diane P. voted Wood Carlson, IL, Chicago,

Martin H. Gilbert WA, Seattle, Levy (argued), Bracy. Novak, Gen., Atty. M. Rita Office Sweeney (argued), Office of the State’s Kevin Div., County, Atty. Appeals of Cook Criminal IL, Chicago, Gramley.

Stephen (argued), Marshall E. Eberhardt Hartman, IL, Farley, H. Chicago, Robert J. IL, Jr., Naperville, for Collins. Gen., Atty. Ryan, E. James Office Gen., Ziek, Atty. J. Office Steven Div., IL, Kevin Chicago, Appeals Criminal Atty. Sweeney (argued), Office of the State’s Div., County, Appeals Criminal Chi- another car. Nellum of Cook waited a few minutes IL, and cago, for Welborn. then drove the viaduct as As he well. it, approached stopped he heard shots. He POSNER, Judge, Chief Before jumped the ear. they sped Collins off. ROVNER, Judges. Circuit CUMMINGS Michigan Later the two drove to Lake pistols Collins two into threw the lake. Nel- POSNER, Judge. Chief lum, arrested, after he was police told the guns dumped, where the had been Roger con and the William Collins were police them an Illinois state in 1981 of found there. Bullets found in victed in court the dead previous year. type bodies of men were of three murders committed the guns, although fired They guns after these had so were sentenced death and ex (see a People prolonged state deteriorated as result of their hausting their remedies v. 237, Collins, 910, positive Ill.2d immersion in the lake that no 106 87 Ill.Dec. 478 ballis- (1985); 130, 180 possible. tics identification was N.E.2d 267 153 Ill.2d Ill.Dec. (1992)) 60, sought 606 1137 habeas N.E.2d testimony Nellum’s was corroborated Judge corpus in federal district court. Hart only by finding guns the the but also relief, rel. denied them United States ex Col testimony a resident apartment from Welborn, (N.D.Ill. F.Supp. lins v. 868 950 building group who saw the leaving on the 1994), they appealed, arguing and that Collins, Nellum, night. fatal She identified process denied them the state due law Hooper and in court as resembling three of sentencing trial and in

both at the men she had seen. She testified that one hearing. had wearing three been a wide- brimmed hat —and Nellum testified that Col- bound, taken, had been The victims from wearing lins had been that indeed such a hat apartment building a on the south side night. Further corroboration of Nellum’s Chicago and had been a viaduct driven to testimony resident, came another who shot to death pistols and there with and a having Bracy testified to seen and Collins shotgun. The main witness was night, building that and from a witness Nellum, accomplice testified Morris who Bracy that testified had borrowed being for government exchange pistol from her before the murders and only felony charged concealing with and afterward, they when were in a bar she promised that the state would recommend back, pistol asked for the he had told her (In only years. sentence of three fact he people that he had murdered some it. with years received two and a half of—and pistols One of the found in the lake on prison.) probation, not Nellum testified tip basis Nellum’s turned out to be the him apartment, Collins had summoned to pistol Bracy. had lent that she This witness had where he watched as the victims were also that in the same had testified bar she apartment waiting out led and into a give Bracy seen a shot- woman sawed-off Collins, by Bracy, automobile third gun that had then em- handed to an man, Hooper. (Hooper separately, was tried bar, ployee apparently safekeeping. convicted, and sentenced to Peo death. See Bracy and testified on be- Collins their own ple Hooper, v. 133 Ill.2d 142 Ill.Dec. half, denying participation in mur- (1989), affirming N.E.2d the convic ders, parade presented wit- alibi vacating tion but the death sentence. On credibility. nesses of dubious remand, Hooper again was sentenced to death, Supreme this time Court of guilt presented evidence of at (Ill. Illinois affirmed. 1996 WL 30547 Jan. compelling, the trial is a was and while there 25, 1996).) see, veracity question, shall about as we car, testimony, told Nellum to

Collins drive Collins’s of some of if that Nellum’s even parked apartment question which near budd- were resolved the defendants’ ing, Hooper viaduct. doubting Collins and then have no favor we would basis for got Hooper car that guilt into the contained the three or Collins. either away, by Bracy drove separately victims and followed was tried because his confession yet A could be biased is further confession and the them implicated the case. But pre the outcome of not evidence bias not affect of course evidence, though case, “structural de judicial our is one of those bias sented Hooper, commit did, along with the trial mecha constitution of really fects inad evidence was errors,” Because nism,” “trial murders. distinct from mere be used to show cannot missible ha automatically petitioner for entitle a complain Bracy and Collins errors of Brecht v. Abra corpus to a new trial. beas Cf. the verdict. unlikely to have affected hamson, at 113 S.Ct. supra, 507 U.S. 278-79, Louisiana, 508 U.S. v. Sullivan Louisiana, 1717; supra, 508 see Sullivan (1993); 2078, 2081, 124 L.Ed.2d 2081; 278-79, Turney v. 113 S.Ct. at U.S. at Ross, Cir. States v. 437, 445, Ohio, 1996). that was admissible But the evidence (1927); Tyson Trigg, 50 F.3d L.Ed. 749 im guilty and this is shows (7th Cir.1995). is bias? De What because, exceptions, a few portant synonym for broadly enough, it is a fined may not court person in a state convicted supposes no one predisposition, and a federal a new trial from an order for obtain prosecu There are judges are blank slates. errors basis of constitutional court on the judges, and defense-minded tion-minded re trial unless the errors committed at the predispositions— judges, sorts have and both or, equivalently, prejudice, in actual sulted on one place that added burden biases substantially the ver influenced unless come of the cases that side or the other Abrahamson, dict, v. Brecht supposes that the Yet no one before them. 1710, 1722, 123 637-38, 113 L.Ed.2d 353 S.Ct. justifies reversal of such biases existence words, (1993), or, likely to have were other harmful errors are commit eases where no and, conviction difference between made the judicial category of bias is ordinari ted. The acquittal. predispositions, real or ly limited to those petitioners argue only that the The error con strongly presumed, that arise from some regardless of whether requires a new trial between thé pecuniary or otherwise nection presid- prejudicial is that the participants in judge and one or more of the having of trial was later convicted ed at their present case litigation. Whether defendants in accepted from criminal bribes doubted, but, in may be even fits that mold cases) (including murder cases several other event, ground any for bias to be automatic Bracy and Collins around the time when of a criminal conviction for the reversal Maloney, v. tried. States actuality, must show either the defendant (7th Cir.1995). There is no F.3d 650-52 judicial just appearance, of rather than and Collins bribed suggestion that bias, temptation so severe that possible “or a argument rather him. The offered to bribe actual, in might presume an substantial we Maloney down hard on Judge came is biased.” Del Vecchio v. Illinois centive to be in cases in which he was criminal defendants (7th Corrections, 31 F.3d Dept. of bribed, suspicion that he was to avoid not Cir.1994) (en banc); Gramly, see Branion take, impression that cancel bad (7th 1256, 1268 Cir.1988); Margoles 855 F.2d might make on the voters— acquittals his Cir.1981) Johns, 296-97 desperate to maybe to make defendants even curiam). rejecting In reversal on (per him, fearing punish them with bribe he would partiality or appearance basis of mere is no rulings if did not. There adverse presump part relied in on a bias Del Vecchio evidence, Maloney only conjecture, that but here, judicial tion, obviously inapplicable actually in favor of did lean over backwards faithfully. 31 perform their duties officers in this or other case not the core But that was F.3d at 1372-73. is, bribed; did, that rule which he was not fundamental reason decision. The of the against only the defense because he was appearance impropriety is that an argues taking cases. Collins bribes other is that it enough require a new trial alone unnecessary, evidence is only supposing for a weak basis discovery provides necessary request if it is test of the issues original trial an unreliable granted.: should have been argument in it. require for decision The fact would thus presented invalidating prose- had an incentive to favor the of tens of thousands of civil and criminal in cases in he was not cution bribed judgments, Judge Maloney since pre- alone prosecu- did does not mean that he favor the 6,000 sided during over some cases than tion in such cases more he would have judicial course of his career and he is anyway. done eighteen judges one of Illinois who have been accepting convicted bribes. The fact that is the Sometimes —this second half magnifies this is a death case appearance quoted from the test that we Del Vecchio— of impropriety but is irrelevant an issue engage incentive to biased behavior is goes propriety of conviction rath- great inquiry actuality into the of that so merely er than to that of the sentence. 1372-73; pretermitted. is Id. at behavior Murchison, see also In-re assumption underlying argu- Collins’s 623, 99 L.Ed. 942 This rule corruption ment is that a judge’s likely is practical impediments both recognizes permeate judicial conduct rather than be obtaining mo judge’s reliable evidence of a encapsulated in particular cases in which difficulty overcoming public tives and assumption he takes bribes. The plausible is judicial temp skepticism motives when the consequences unacceptable. If great. impropriety tation to But the auto inquire we were to motives that lead into.the interpreted circumspect matic rule must be judges prosecution, some to favor the society ly, recognition due cost to led, too, might quickly to the radical overturning guilty convictions any system but not absurd conclusion that to vindicate an abstract order interest judges inherently elected unfair because it procedural people fairness. The fact that the judicial polit- contaminates motives with base practical reasons do obvious frequently ical calculations that include a de- judicially rights protection to enforceable the sire to seen “tough” be as on crime. See (though they criminal have laws do generally Majoritari- Croley, Steven P. “The judicially rights against enforceable discrimi Difficulty: an natory protection) withdrawal of does Elective Judiciaries and the Law,” disregarding not warrant a court in 62 their Rule of U.ChiL.Rev. 726-29 is formulating interests when the rules court Accepting of constitutional law. Collins’s precedent No cited to been us for a require every contention would new trial in invalidating judge’s rulings a in a case case, jury capital noncapi nonjury, and bribe, which he is known not taken to have a tal, judge corrupt in which a later found to be simply because he took bribes other cases. presided had defendant the had been Lane, 288, 109 Teague 489 convicted, though judge even not had (1989), disapproved 334 L.Edüd the use (If prosecutor. de been bribed grounds grant appli of novel to relief on an judge had bribed ac and been

fendant corpus. cation for habeas The state does not quitted, jeopardy probably the double clause but free Teague, apply cite we are to State, reprosecution, not bar would Benard v. — Bohlen, U.S.-, anyway. Caspari v. (Tex.Crim.App.1972)— S.W.2d -, 127 L.Ed.2d 236 any the defendant would have been in never Welborn, (1994); Eaglin 57 F.3d “jeopardy.” actual The issue has not been (7th Cir.1995) (en banc). argument The for definitively resolved, however, David S. Rud compelling automatic reversal is not even if stein, Jeopardy “Double and the Fraudulent grounding prior its lack a secure of eases ly-Obtained Acquittal,” 60 Mo. L. Rev. alarming potential irradiation (1995), its of fu obviously not to need be order case.) ignored. corrupt While a present Any ture cases judge decide the iswho judge sharply might decide to tilt adopt on the take will to have incentive prosecution in Judge Maloney’s strategy cases in which he was not alleged and thus (or worst) taking right always do his best bribes —to the balance as it see to it equally possible is that he a defendant who does not bribe him is were —it would con acceptance A principled doing victed. fear so would create a Collins’s he rulings in their favor that rulings that would there were so few of inconsistent pattern in favor judge have been biased must suspect he was on take. people to lead would government. To show this not judge prosecutorial sides severely aWhen merely required investigation, but in some arbi- the defense unexpectedly with transcript It of the trial. is eases, review the corruption possible is a trary subset of unlikely specific rulings of which the that the judge maintains instead explanation. If product either complain defendants were stance, may he generally pro-defendant govern- corrupt bending (Malo- of backward chances reelection jeopardize his jury’s favor influenced the verdict. ment’s or vacancy, he appointed to a had ney was Supreme The Court Illinois did find election, so, when and did stand for any rulings. errors expired), original appointment term the bribes he and size of and the number argument that a The defen- may diminished because receives be corrupt in accepts bribes in some eases is all consequences will be less fearful dants sufficiently empirical compelling is not still bribing him. But he also of not proposition persuade us treat this case take, on the because his suspicions that he is Judge Maloney had a bribe from as if taken in cases in rulings in favor of defendants argument government to convict. If the he is will not stand out. bribed rejected, a ease there ours is in which is merely an appearance impropriety jury than a bench This was a trial rather judge’s presiding, appearance and an of im trial, moreover, jury acquittals in trials propriety does not constitute denial due likely than are more to be blamed on process. Appearance impropriety there happens judge. on the When sometimes We know this because if a was. accused of judge campaigning for election is accepting bribes under indictment he having rapist or sentenced never convicted permitted hear eases. death, Buckley cf. v. Illinois a murderer to 56(a)(1). Ill. But more a Board, S.Ct. R. without Inquiry Judicial conviction cannot be set aside. defendant’s Cir.1993), tri- is to bench reference als, acquit where decision convict discovery, also seek judge’s, handed down and to sentences try to find out there so can whether than, by judges capital eases in as in rather by Judge Maloney at was actual bias Illinois, juries by the waives unless defendant Discovery is in habeas cor trial. available a jury. It in tried to the bench that cases pus proceeding not as a of course matter as judge the must shoulder as decision-maker litigation only if ordinary in an civil the but responsibility full for the When he decision. “good judge finds cause” to district order merely presides, responsibility for his the 6(a) discovery. Governing Rule of the Rules not outcome We do understand Bra- less. in the Section 2254 Cases United States Dis Maloney ey arguing Collins to be Scott, Courts; trict East v. 55 F.3d death, likely was more to sentence them to (5th Cir.1995). petitioners study The want to being likely distinct more to rule large sample Judge Maloney’s cases of to trial, against during them the as a conse- prose pattern favoring see whether a of the quence taking of bribes in other cases. his in in cution eases which he was not bribed are, true, emerges, persons speculating depose about to “some of those

We it is intimately likely impact Maloney’s corruption on the and witnesses who most as of Judge may rulings Maloney at with who be he made the trial these sociated provide on petitioners. acknowledge possi- able to material information We also bribes,” bility get in he those rul- eases where didn’t the cumulative effect of behavior any ings greater Tyson get imagine. was than we and to hold of supra, government might in Trigg, at defen- have obtained 439. But the federal Maloney really prosecution are that he did speculating dants too. of Malo- its Some rulings govern in ney’s against lean over backwards favor of went the defendants they in in he not bribed— obviously com- ment cases which was those are the ones about, very proposal plain they perhaps in case. The first have not shown that this all, discovery corruption require ground at is not a not formal constitutional for would vacating petitioners’ convictions. Maloney’s public cases are matter of since too; in The third the first instance record. The raise another issue rate, require perusal all it would is a bias, in this the context a claim of Maloney’s It is transcript of trial. of the ineffective assistance of counsel. One of the the trial part that a record was true jurors was wife of an Illinois judge state sealed, August it in but was unsealed Bracy who prison had once sentenced to for petitioners’ lawyers so that the have had robbery. lawyer armed The defendants’ year and a half to look for clues in that object aware of this but did not to being her proposal fishing, record. The second is for a jury. selected for Toward the end of the expedition expedition. Even if the discover- trial, however, lawyer revealed to the over in ed that did lean backwards jury Judge juror’s Downing, hus cases in he favor which (though band not identified as such to the bribed, taking was not order conceal his jury), given Bracy had once the most severe cases, of bribes other would not show prior sentence that he had ever received practice he followed the this case. petitioners argue that, case. thus which This be a case in would reminded that her harshly had dealt husband government ruled in favor of occasion, on prior Mrs. Down complain. of which the defendants instances ing prejudiced against was bound to be Bra cy perhaps therefore his codefendant as party ordinary A to an civil suit not need speculation well. This is too thin a justify good per- cause order demonstrate to be ground new trial of ineffective assis discovery. petitioner A mitted conduct persuaded tance of counsel and we must, corpus habeas because collateral attack proposal that in ordering lieu of a new judgment criminal on a final become trial we order the district court to conduct an remedy. extraordinary is an aid Without the evidentiary hearing at which Mrs. Downing discovery petitioners’ of formal able questioned be about what she was (and have) perhaps counsel could have stud- thinking when she was a member of the pattern Judge Maloney’s rulings ied the years ago. fourteen The defendants were cases which he did and cases in he juror content to have aas the wife of the (and bribes, perhaps did not take could have knew had sentenced have) rulings in present inventoried his term, long prison and the decision to ac consistently case see whether favored cept plausibly her is not and could (and prosecution, perhaps and could have Only claimed to be ineffective assistance. have) studied prose- the record lawyer’s slip tongue that revealed cution the United States clues to thought this fact to her could be ineffective theory of If none public bias. of these so, likely prejudice But if assistance. yielded any sources of information has evi- trial, slight was too to warrant a new anor of bias in dence our case—and none has —the evidentiary hearing unlikely to be more probability slight program is deposi- that than, discovery concerning Judge fruitful Ma accomplices tions aimed at crooks and their loney. likely to by and be derailed event real alleged irregularity Another at trial feigned lapses memory yield and will such judge’s is the failure to strike remarks made evidence. by argument. prosecutors closing The judicial light corrup- do not We make objection to worst remark which an has been judicial system It tion. has tainted of preserved think I you was: “and if would Illinois, unjust acquittals, caused jeopardized license, jeopardize my family, my my chil convictions, legal profession, dren, tarnished my put peripheral future to [a witness profound only and raised doubts not about on in and make him Dorfman] named lie_” a case selecting judges “vouching” the state’s method of but This is claimed to be political testimony, about also the entire culture of the the truth of the which witness’s case, do, prosecutors supposed But in the circumstances of are not state. this because advocacy that he had said he wanted to to testimo- Nellum the line crosses In prose- testify judge. seeking in front of an counsel had accused ny. Defense evidentiary lawyers hearing the defendants’ wanting badly so convict Collins cutor of rely transcript primarily inter- guy come here [Dorfman] “made that he interrupted deposi- than view rather on the you something that he knows not tell words, They argue enough it creates In tion. report.” other defense in that prosecutors knowingly accusing suspicion of hav- prosecutor counsel was perjured testimony at the trial prosecutor used to re- a witness tell a lie. The ing made get evidentiary hearing to passage quire in the that we an denied vouching This was-not for the truth bottom Nellum’s recantation. quoted. testimony. denying It was of the witness’s alleged concerns a matter None lies prosecutor had made the witness lie. that the government’s case. Nellum vital to did vouching anyway is not a violation And deny present that he when the vic- right at most any specific constitutional apartment, from the tims removed irregularity particular that if in a shown an Collins, pick up he drove viaduct likely led to to have been to have case pistols that he saw toss the into Collins might be innocent man held conviction Michigan. jury thought had Lake Yet process of due of law in that to be a denial police that the had Nellum and that beaten Peters, Rodriguez v. F.3d case. lie, prosecutors him to had coerced albeit Hanks, (7th Cir.1995); Kappos v. details of rather than about the offense about Cir.1995). (7th No such inference is defendants, his the involvement of the credi- possible here. already bility, compromised because he was testifying promise in exchange for the of a question The next is the standard extraordinarily considering sentence lenient when, evidentiary hearing long granting accomplice he had been an three defendant, the conviction a criminal after murders, might impaired so far have been steps witness forward re- that the would have disbelieved core Many years part testimony. of his cants a testimony. the periphery as well as of his Collins, Bracy private the trial of after investigator by retained the defendants’ possibility, we Given this must con counsel talked Morris Nellum. Later Nel- newly showing sider what based on discover by Bracy’s lawyer and lum was interviewed evidence a constitutional ed violation transcript was made Nel- of that interview. (here, have been at trial committed testimony not recant lum did knowing perjured use. and Collins had committed the murders. He necessary prosecution) hearing before a merely tried to the third murder- exonerate determine truthfulness of the evidence is er, Hooper. explaining But how he had required. argues only weakly The state testify against Hooper come to he made lurid obtained should have the re police that the accusations had beaten sooner, cantation event it (Nellum) and him and threatened him with a newly discovered evidence relevant prosecutors sledgehammer and that the had Penitentiary, sense. Dever Kansas State him to lie as when told about such details he Cir.1994). F.3d So the police pistols had first told the where the request evidentiary hearing for an is not pitched. used in the murders had been diligence, barred want of further jury had been told had at that Nellum first grant it cannot a of the more be condition knowing gun denied of the whereabouts hearing already a that the movant have such prosecutors not that the him had told to possession in his all the evidence that he lie about that denial. develop hearing. equally But seeks to in the repeated enough petitioner be that the part

Nellum later a of his recan- it cannot reopen deposition interrupted in new To a crim tation that was found some evidence. proceeding many years after the defen prosecutor when an Illinois had talked inal and his conviction af to him after the defense coun- dant was convicted interview with (which sel, in this case occurred more prosecutor, and an Arizona reminded firmed

693 Likewise, years extraordinary allegation is an inter- not ago) than ten old finality pro- newly trigger of the criminal discovered evidence ference with the will an evidentiary hearing; requires allegation and demonstration that must cess be Sain, yield hearing probably supra, evidence “substantial.” Townsend would v. 372 313, peti- require trial at which the U.S. at 83 S.Ct. at That is would a new common Judge a substantial chance of sense. Had Hart in his tioner would have order of Au 24,1994, granted acquittal. passage gust In of the of time view rather than denied the since, hearing, in an evidentiary and the social milieu motion for disordered and the which, hearing year, mur- committed these been held later that the wit ders, nesses, primarily prosecutors whether be it is doubtful could Nellum and the good prospects police investigation retried with for an accurate involved in the verdict, guilt multiple prosecution of though against even the murder eases Bra Collins, cy, Hooper, murders committed cold blood is not have would been They fact about testifying doubt. cannot be blamed for the events that had occurred years years chal- that it has taken fifteen for their thirteen to fourteen long earlier. So lenge this to their convictions come to interval between the and the events testi tell, court; mony far can pall so as we about events would cast a process. reliability one postconviction testimony. abused the But doubt over consequence extraordinary delays typical Ours is not situation which an capital evidentiary hearing granted posteon are tolerated in eases order is proceeding. minimize the risk mistaken execution viction is the Not interval shorter, typically that an order for a new trial issued toward as in v. Daniels (7th States, Cir.1995), postconviction process the end of the normal 54 F.3d 290 and Bar Lane, (7th 1031, may practical acquittal. have the effect of an kauskas v. F.2d Cir.1989), judges long makes This consideration hesitate but when it is as as it would newly usually order new the basis of discov- here this is trials on be because the state or, unlikely give petitioner ered to be even full reliable failed to and fair believed, hearing, if be to undermine confidence state must not rewarded denials process. verdict. its own of due When the evidentiary request hearing a federal mindful that in v. We are Townsend long gathered on evidence after based Sain, 312, 756, 745, late to presented event —too be to the state (1963), Supreme stat L.Ed.2d 770 Court courts, having which cannot be faulted for dispute, ed that facts are in “where the provide petitioner with an failed to evi corpus court in federal habeas must hold dentiary hearing court is federal enti —the evidentiary petitioner re hearing” unless the insist, precondition as a to granting tled to hearing a full court. ceived and fair state petitioner hearing, that demonstrate that passage opinion This Townsend claim, meaning by he have a “colorable” See, quoted approvingly. continues to be (the be its face that it nonfrivolous on Collins, e.g., Herrera v. 506 U.S. “colorable”) meaning of but that usual there 853, 860, 122 L.Ed.2d 203 Siripongs be some to think it valid. reason literally, But it cannot taken since Calderon, Cir. “may court employ know the district 1994). variety an effort measures to avoid evidentiary hearing” disputed need for an Even Nellum testified under facts, Allison, 63, 81, Bracy’s Blackledge lawyer oath to all he had told (1977), testimony S.Ct. 52 L.Ed.2d 136 and even if were believed over including expand police certain prosecutors a direction to the record that of almost Nellum, contrary thus evidentiary testify include materials that re establish dispute hearing. knowing ing the factual without a made use of solve 1633; perjured testimony, Id. at Rule 7 a new trial not be perjured knowing the The Governing Rules 2254 Cases in warranted. Section use by prosecution, although a testimony United Courts. the States District represented in sentence of are infringement the constitution- under death very serious defendant, pester not an postconviction proceedings) these a criminal rights al many years they a trial. There must for new to recant after basis witnesses automatic that the violation suggest likelihood be a reasonable had testified. We do not that the Agurs, verdict. United States lawyers unethically. the In the Ameri- affected would act S.Ct. justice representa- system 427 U.S. zealous can the (1976); States, Giglio v. United L.Ed.2d duty, lapse. a client is not an ethical tion of a 150, 154, 92 inAnd some cases the recantations would be (1972); Boyd, States L.Ed.2d if genuine and material and so would be (7th Cir.1995). The evi- ordering a proper basis for new trial de- a very guilt was Bracy’s dence of Collins’s spite passage given the time. But we are brought at powerful, and evidence out the to suppose no reason that Nellum’s recanta- hearing repeated at a evidentiary which if genuine tions are either or material. His on Nel- merely doubt new trial would cast amply original testimony was corroborated sway credibility unlikely to would be lum’s the preserved and his recantation core of the imagining new trial at which jury. We are original testimony And while the in- intact. except is the same all the evidence Bracy’s lawyer occurred in 1992 terview changes some of the details his Nellum following deposition and the abortive the and, testimony, changes the are earlier when year, years in the more than two that have face, his makes lurid accusations thrown elapsed deposition since the the defendants’ police against prosecutors. The lawyers, energy ability current whose testimony Nellum’s would be unaf- core of doubted, cannot be have failed to obtain fected, richly and would be corroborated for corroboration Nelhim’s recantation. testimony of the witnesses whose other cannot of We course determine the credi- beginning of we summarized at the evidence recantation; bility only Nellum’s can (assuming can opinion those this witnesses suspicions. germane, express our These are persuaded testify or the tran- found and however, evidentiary hearing because an original testimony script of their is admitted granted newly trial), need not be on the basis of guns. Of the second many presented years discovered evidence cannot be that once Nel- course we certain path after defendant’s conviction became final lum started the recantation he down expect good unless there is no further has done reason go than he Having completed bargained hearing to result his in an order for new trial. date. long ago proposition clearly he incentive cannot find has no to We artic- sentence ease, prosecution. But us cooperate with ulated but it seems to consis- recantation, sweeping his the less cred- tent with the cases more results and sound likely to be. ible it is a matter of principles. as first circum- recantation, strength stances of Nellum’s rely heavily on frequently Prosecutors evidence, original and the fact that the class, testimony of members criminal testimony of his per- core was not recanted Nellum, straight” “go not such as did evidentiary request suade us that for an completion of his light after sentence hearing properly was denied. They no role in the murders. choice. criminal demi- These witnesses challenge We turn defendants’ to the witnesses, only not monde are unreliable They sentencing hearing. complain to the emphasized defendants’ to the counsel lawyers given enough asking jury in them to disbelieve Nellum’s mitigating time to obtain circum testimony; 'people. We unreliable jury stances for at that submission imperiling of dan- punishment would be They hearing. im asked for continuance gerous prece- criminals we established mediately jury after convicted their lawyers invite for con- dent that would cases, properly It clients but was denied. (especially capital victed defendants In involved but denied. Illinois the determines because of the stakes capital prisoners guilt also because than those the defendant’s case also few other whether he is to jury determines be sentenced to before the presented Arizona had been death, as in this unless case the defendant jury to Chicago, Chicago jury right jury. waives be sentenced surely would have Bracy found that had com- jury, sentencing it is the same Since mitted the Arizona murders. Not all that hearing perforce immediately upon follows presented, maybe was jury so trial, jury as it also does when the is would swayed by have been alibi evidence lawyers waived. Defense know all this and that we now know is principle false. But no they gather therefore wish to evidence of justice throwing authorizes out a sentence mitigating they circumstances must do so ground on the might the sentence have ends, they before the trial because will have been different had the defendant been al- no time to do so after the trial ends. But in present lowed to testimony. false Lockhart lawyers this dropped case defendants’ Fretwell, 364, 369-71, 506 U.S. 113 S.Ct. argue the ball and the defendants 838, 842-43, (1993); 122 L.Ed.2d 180 Nix v. by doing lawyers alternative that so the Whiteside, 157, 175-76, 475 U.S. provide competent failed to assistance of 988, 998-99,89 (1986). L.Ed.2d 123 sentencing hearing. counsel at the Bracy objects to some remarks so, Perhaps but we need not de prosecutor closing argument at the at the this; cide prejudice, there was no sentencing hearing. was, The worst “Some proof without of prejudice a claim of ineffec of us went to Yiet Nam and had to kill for tive of counsel cannot assistance succeed. country, this and I will anybody be damned if lawyers The defendants’ current have turned going to tell me that what we did in Viet up mitigating no might circumstances that Nam or in other war was a violation of put jury have been before the awith fair the Fifth Commandment of the Bible.” This chance of success. It is true that one of the response awas argu defense counsel’s circumstances, aggravating though limited to ment to sentence the defendants to Bracy, shortly participating is that after Commandments, death would violate the Ten triple Chicago murder in participated he is, one of which of course “Thou shalt not in a double murder Arizona. He had not prosecutor out, kill.” The pointing was yet been tried for those murders but the unnecessary fatally but not think prejudi woman who was daughter the wife and emphasis, cial thing there is such a murder victims and the state’s main witness justified homicide and that the execution of a brought Chicago was testify duly is, convicted and sentenced sentencing hearing murderer was indeed plausibly, an one of the illustration of it. Arizona murderers. The defen argue lawyers dants pres that their failed to objects Collins pro- to the exclusion of a might persuaded ent alibi evidence that spective juror on the basis of his acknowl- had not committed those edging in response question by to a patience murders. We have little with this “probably” impos- he would not consider argument. Bracy was later convicted and ing penalty. the death The defendants’ law- murders, sentenced to death for the Arizona yer object did not excusing prospec- proof and the burden of that the state bore in juror tive for cause. We do not think this convicting him higher was of course than it error, certainly not error of constitu- sentencing bore in the hearing, for the exis proportions, tional given the absence of an tence of an aggravating circumstance need objection. Witt, Wainwright v. proved by preponderance 424-26, 429, 844, 852-54, 855 83 evidence, provided that at least one such (1985). L.Ed.2d proved beyond circumstance has been a rea doubt, issues, petitioners present sonable making thus other defendant eligible for the death either have too little sentence. 720 ILCS 5- merit warrant (f); Peters, 9-1 Free v. by previous discussion or are foreclosed Cir.1993); People Ramey, given 152 Ill.2d decisions of this court that we are not 19, 35-36, Ill.Dec. 604 N.E.2d 291-92 reason to reexamine. have consid- We ifSo all the evidence that possibility had been ered the that the cumulative effect

696 alleged irregularities tips the were but three of bribes that witnesses

of the various Maloney at trial a new to trial. See Unit in of a new attributed his favor balance (7th Maloney, 71 sentencing hearing but have concluded that ed v. F.3d 645 Cir. States 1995); O’Connor, Judge Maloney regret Judge Maloney that Matt not. We does found case, guilty corruption do petitioners’ trial but we in presided over the CHICAGO Tribune, 1993, News, 17, sentencing, April that relieves them 1. At think the Constitution Judge Maloney judgments that the Illinois courts also found that from the Leinenweber had, lawyer, cooperat practicing while still a have rendered. acquittal in of procuring ed notorious AFFIRMED. Harry reputed by Judge hitman mob. Aleman Frank in 1977. Mi Wilson Mob enforcer ROVNER, ILANA DIAMOND Circuit Maloney chael had Bertucci testified that Judge, dissenting. helped a of criminal him to evade series right is to notion more fundamental No charges bribing judges by far back as the as right impartial fair trial than the to an of a 1960s, although Judge late Leinenweber dis 212, Mississippi, judge. Johnson v. 403 U.S. testimony. seem, in counted this It would 216, 1778, 1780, 29 423 L.Ed.2d any event, by Maloney that time ascend (1971) Murchison, curiam); (per In re 349 1977, groomed ed to in the bench he was well 623, 625, 75 99 L.Ed. 942 U.S. S.Ct. judicial corruption, in the art art that of (1955); see Aetna Ins. v. La also Co. Life 1986, practice he at least he until when voie, 1580, 813, 106 S.Ct. L.Ed.2d 89 correctly perceived that he was under (1986); Monroeville, Village 823 Ward v. of FBI eye watchful and returned the Ohio, 80, 409 L.Ed.2d U.S. 34 $10,000 accepted had El Rukn bribe he (1972); Ohio, Tumey 47 prosecution. L.Ed. 749 “The truth Malo- and Collins tried before pronounced Justinian more than a thou ney Maloney’s in the midst of bribe years ago, ‘[ijmpartiality the life sand taking. Maloney did not solicit a bribe from justice,’ just today of as valid as it was defendant, either nor did the defendants of- Brown, then.” F.2d United States fer him did Cir.1976) curiam). one. Nor bribe (per (and Maloney. given proof But the abundant states, and of constitutions of our nation our finding) jury’s justice federal for was procedure, rules of evidence and of Maloney’s courtroom, sale in com- we are years promise of panoply case law full pelled Maloney may consider whether be to rights ultimately of to But the accused. impartial deemed the due to which guarantee rights is no than stronger these process entitled these defendants. integrity and fairness of to the trial whom is entrusted. placed

The State of Illinois the fate of Roger argue The petitioners William Collins in cases that Maloney fixed, Maloney hands of a racketeer. Thomas is were not had an incentive to presently serving prison nearly particularly tough defendants, term in order years racketeering, conspiracy suspicion sixteen might divert otherwise be racketeering, acquittals paid commit extortion under color aroused he was right, strengthen justice. official A render obstruction and to the incentive accepted conceding him. determined that had defendants to bribe Without $10,000 in acquit Maloney’s partiality El 1986 to two Rukn lead- further evidence murder, ers of a required double was to establish constitu- undetermined portion $100,000 payment petitioners of a inadequacy judge, in 1981 to tional acquit gang sought three York from the court to en- New members leave district murdering Chinatown, Chicago’s gage discovery, rival the aim of establish- $5,000 $4,000 corruption ing pattern between that affected Ma- in 1982 loney’s convict voluntary only another man- conduct in not those cases individual slaughter felony accepted a also those rather than These which he had bribe but murder. persuaded Judge bribing Maloney denied client that he had not. Hart in which course, deeming request, prudent what the explaining he prove speculation to be a matter of sought had one case Maloney, lost before “and event, and, ie., insufficient establish work,” one that was the we didn’t deprivation. States ex 2544; constitutional fix. see arrang- Tr. also Tr. 2559. In Welbom, 950, 991 F.Supp. rel. Collins ing meeting McGee, with the told Swano had (N.D.Ill.1994). my in the colleagues Like him that he wanted to discuss “a in hot case majority, judge the district concluded that Maloney”. Judge front of Tr. 2566. McGee Bracy permitted the circumstances the most said that he first have to obtain Malo- argue possibility to and was the mere Collins ney’s permission. Tr. 2567. When Swano bias, Dep’t Del Vecchiov. of which Illinois of subsequently and McGee met at Bour- Le Cir.1994) (en Corrections, 31 F.3d 1363 deux, hole, watering a local McGee told Swa- — denied, banc), U.S.-, cert. gotten no okay Maloney that he had the (1995), L.Ed.2d 290 is not indicates speak to about the matter. Swano recalled: deprivation pro due enough to establish judge “He told me that the had said we could F.Supp. at cess. 868 talk, in especially way view of judge the the fact, Maloney case,” the notion was delib had me on In that screwed the last tough erately did not Swano to defendants who understood be the reference to support testimony in bribe him finds Davis Tr. case. 2567-68. Swano voiced presented at trial. attor agreement Defense with assessment “that ney arranged Swano William several me had screwed on the had case and Maloney prosecuted bribes for which was my screwed client.” Tr. 2568. He key government against witness was got McGee then down to El details about the represented him. In James Rukn fix. That bribe .Swano was one of four that Davis, charged whom state had Maloney guilty accept- found later robbery. assigned to armed case was ing. By time, Maloney for trial. this had Swano may testimony One infer from Swano’s Maloney already bribed on a number occa Maloney prosecution, that saw the Davis investigating prosecu But after sions. tendered, which no was opportu- bribe as an Davis, against tion’s ease concluded Swano nity to teach Swano a lesson that would unnecessary Malo- it would to bribe least, That, ensure in future cases. bribes ney acquittal in order obtain an story If was the moral for Swano. robbery knew case: three witnesses (a factfinder, right Swano was matter for the perpetrators the two and said that Davis was us, determine), then it would seem them; alibi; and not one of Davis had an Maloney’s approach fixing to case was crime, victim, initially identi had Bracy global indeed the view that and Collins as one perpetrators, fied Davis had posit: fixed cases a source of illicit uncertainty confessed about identifica profit, unfixed oppor- whereas cases were an was case “[t]he tion. Swano confident that it, Bracy puts tunity, “advertise” guilty a not was courtroom 1) (Bracy Reply at defense bar while at building.” United States v. Thomas J. Malo curry- protecting same time franchise McGee, ney Robert No. 91 CR ing law and order favor with minded voters (N.D.Ill. 24,1993). Tr. 2528 WL 96673 March avoiding ire of the law enforcement however, surprise, Maloney To con Swano’s my community. colleagues, I Like think his client after a Swano victed bench trial. exceedingly face an difficult as a lesson in front practice took this that “to attempting task in to unearth Maloney Judge pay.” ... Tr. we had to (see support theory will lend further to their correctly interpreted 2530. That Swano had 691), testimony suggests ante at but Swano’s arguably as a lesson con this conviction not be the search futile. by Maloney’s bagman, McGee. firmed Robert bottom, my colleagues At that Bra- met with McGee soon Davis was believe Swano after discovery cy mur are not entitled to convicted discuss a fix in the double and Collins is hope, prove of the two El had most can der trial Rukns. Swano because the Bracy discovery, and Collins gage practice it a to lean over made In certainly done so here. view in favor of the backwards bribed; undisput- without against Maloney, he was not it is jury’s cases which verdict practice in this very followed that proof accepting that he at the that he was bribes ed reason, case, have no and Collins to trial. time that and Collins came trial at 691. But when the claim. Ante money suggestion that Although there is no pervasive conflict of tainted case, justice my in this oiled the wheels words, not limited to a other one interest —in colleagues plausibility of the no- concede type of litigant or case-evidence particular likely to judge’s corruption that “a tion effect on a the taint had discernible judicial than be permeate his conduct rather unnecessary. Here the show given case is in which encapsulated particular cases my colleagues require would be all ing that Putting Ante at 689. he takes bribes.” make, absent either an impossible moment contamination of the aside for the Maloney, extraordinary admission from likely that judge’s philosophy, it seems to me (Maloney forthcoming continues which is not any judge accepts bribes and wishes to innocence) or the kind of proclaim his strategic remain on the bench will think in that makes over-the-top courtroom behavior Judge his other eases. As terms about Chief (see, plain e.g., judge’s partiality out, might points one wonder wheth- Posner 340, Dellinger, 472 F.2d 386-88 States v. really Maloney’s er it would have been denied, 970, Cir.1972), 93 S.Ct. cert. U.S. pro-prosecution mantle interest to assume (1973)), 1443, phenom 35 L.Ed.2d rare cases, acquittal the occasional unfixed lest In not evident from the record here. enon purchased from him look out of character. event, Supreme expressly Court has But for such delib- Ante at 689-90. the time proof rejected that such is mandat the idea evidentiary hearing eration is after an on the ed, finding “requires too much matter, petitioners have had the when Ward, 61, at protects too little.” U.S. opportunity present find and whatever Aetna, 83; at at also 475 U.S. 830- see may prac- there be to establish evidence J., 31, (Brennan, concur 106 S.Ct. at 1590 Maloney may tice have followed. Swano’s 831-33, at 1590-91 ring); id. at testimony provides some in that (Blackmun, J., concurring). To establish a regard, and there be more. Without process, petitioners deprivation of due giving Bracy opportunity to and Collins the only need show that the circumstances Hart, Judge present that evidence to possible temptation offer a “would only claim of conflict' can be resolved on the forget the burden man as average my colleagues agree. speculation, basis of defendant, proof required to convict the grave Ante at 690. In view of the and struc- might him the balance which lead not to hold claim, petitioners’ not to tural nature of the nice, clear, and true between the state and case, capital mention the fact that this is a Tumey, 273 at the accused.” “magnifies appearance impro- 444; Aetna, at S.Ct. at accord (ante 689), priety,” petitioners at are 1585; Ward, at 409 U.S. at entitled to more from us. Vecchio, 83; S.Ct. at Del Maloney was motivated 1373. Proof My colleagues Bracy note that and Collins taking prose virtue of his bribe to favor the long had access to some of the informa- cution and disfavor the defense unfixed they profess explor- tion that interest compel, permit, cases would if not the infer ing records of other trials over which —the against Maloney’s rulings ence that adverse Maloney presided, of Malo- and the record Bracy by perni and Collins were animated trial, ney’s example have not own —but (see Maloney’s part cious intent on Fed. claim pointed anything that bolsters their 404(b)) satisfy R.Evid. would more than But if partiality. Ante at 691. Supreme the standard the Court has enunci be,faulted making most of the can for not ated. material, for be- we can be faulted available 6(a) ing page the cold of a trial Habeas naive about what requires Rule petitioner to be will reveal. A who wishes “good cause” to en- record demonstrate adopt need not tough on the defendant Devil to do of the Tasmanian it. manner My disagreement majority goes with stupid. Maloney When he no account deeper question discovery, than the how- acquittal, facts that he wanted he sold end, In agree I with ever. Collins and hang (e.g., his hat on Tr. could Bracy proof impact Maloney’s 2669-70, 2682); and have no reason to we had, had, corruption or probably peti- on the pro- that if he to cultivate a doubt wanted unnecessary. trial tioner’s We do not protect record to his interests as know, likely know, and we will never what taker, ability he had the to do so bribe Maloney thought about and Collins. discretely, appearing without to have abused pretty picture But have a clear of how he judge. discretion as a trial Cases are justice. tag may price viewed have var- bars, the courtroom but bath- fixed ied, Maloney’s proves, but as jus- conviction rooms, If hallways. and back there is evi- tice was for sale courtroom to hope dence of the kind and Collins pay, defendants who could afford to even find, persons it is in the familiar hands charged when with the most hei- injustice. these venues of Both Malo- nous of fact crimes. That carries far more ney bagman continuing and his McGee significance majority willing than the is (see “stand[ing] version of tall” their recognize. acknowledged As this court in 651-52), Maloney, at States 71 F.3d Vecchio, considering Del biasing whether a Swano, Cooley, may Robert and others have requires disqualification influence of a something and At- say, material to the U.S. judge, begin presuming “we ... by ‘the hon- torney may help in identifying be of some esty integrity serving and adjudi- of those as ” petitioners approach. But whom should (quoting 31 cators.’ F.3d at 1375 Withrow likely talk going it that no one is without is Larkin, 421 U.S. 95 S.Ct. subpoena, petitioners and should not be (1975)). 43 presump- L.Ed.2d 712 That deprived of that instrument. tion, my colleagues acknowledge, as is “obvi- ously inapplicable Ante at here.” 688. Ma- venturing a realm are into noir with We loney Garippo, was not Louis esteemed which, confidence, may say I with none of us impartiality honest whose was ar- simply intimate cannot is on terms. We gued potentially compromised to have been probability slight” that assume “the prior his with the involvement defendant discovery yield Bracy any- will and Collins Vecchio, prosecutor. as See Del F.3d at thing. try. Ante at 691. them If Let their (majority); at (Cummings, 1375-80 id. fruitless, discovery proves we can at least J., J., dissenting); (Cudahy, id. at dis- knowledge comfort in take we have J., senting); (Ripple, dissenting). id. Nor given every opportunity prove them Kerner, was he even Otto whose Maloney’s corruption deprived them of a fair pre-dated crimes his service on the bench. cannot, all, ways: trial. We after have it both Isaacs, See United States v. 493 F.2d 1124 cannot criticize we Collins (7th Cir.), denied, cert. U.S. deprive and at time speculation the same 3183, 41 denied, L.Ed.2d cert. 1146 and theory them chance to render their 3184, 41 L.Ed.2d 1146 anything more. I understand Illinois who, Maloney criminal was a as a finality judg- an interest of its judge, very transformed his office into a ments, allowing discovery racketeering enterprise. else, would, nothing por- seek significant implementa- delay possibility vacating tend Faced with nu- having Maloney’s tion their death But merous sentences. convictions obtained courtroom, Bracy and left Collins to the mercies of a we like to believe that he corrupt judge, capable impartiality the State should be heard was (In complain fact, requires this matter. its brief Fourteenth Amendment when no utterly people money changed silent on The But how can point.) hands. we? great integ- path Illinois have as an interest Once he embarked on the bribe tak- judicial rity capital ing, Maloney his oath. trials as Collins do. had forsaken just an- him, discussing Maloney’s bribetaking as commodity to defen- a mere Justice “influence,” something profit center. His exter- nothing more than other “bias” or dants righteousness was path some sever- personality, deviation nal to his lease not, moreover, momentary and uncharacter- it, “might” at most part of able calculated, cold, spanned a istic; it was in a him “incentive” to behave given entirety of his years, if not the period of when he was particular fashion on occasions Thus, Maloney’s the bench. tenure on a more malevolent not bribed. But there is that, conve- “bias,” cannot be if we can call ig- Maloney’s offense that cannot be side to niently compartmentalized. Cf. Diversified him Maloney’s bribetaking removes nored. Orlando, Numismatics, City Flori- Inc. v. “average” man category of the from the Cir.1991) da, (per speaking addressed Del Vecchio. We curiam). treat no more' We criminal, motivates a in this case about what pur- for constitutional impartial arbiter impul- implicates a far darker set of and this megalomaniac poses than delusional usual case. ses than we confront bias robe, closet, judge in dons a black locks a asking ourselves question we should im- everyone a credible and hoodwinks with impact the lack of a bribe had on is not what Ma- Holmes. personation of Oliver Wendell Maloney’s decisionmaking particular in a exchange money for loney’s willingness to case, accept a willingness but what charged most of those with the the freedom judging. his view of bribe tells us about displayed for the crimes his scorn abhorrent willing acquit Maloney proved himself de- justice. very concept of charged capital offenses for a fendants By demanding proof that cor- of those few thousand dollars. The victims likely ruption had an identifi- either had or Illinois, crimes, families, people trial, we fail to impact petitioners’ on the able concept justice, apparently worth the of grips gravity of Malo- come to both with the Why no more to him. should we assume im- ney’s offense and with the constitutional anything worth more to Ma- defendants were perative that the accused be tried before How, loney? Ma- particular, can we trust judge integrity impartiality. “[T]o of and fairly loney to have treated a defendant when way, perform high its function in the best him had not offered mon- defendant jus- ‘justice satisfy appearance of must the 1 ” anything, I think ey? process If due means Aetna, 825, at tice.’ 475 at 106 S. Ct U.S. Maloney’s corruption we must assume Murchison, 136, at 75 (quoting 1587 349 U.S. judge. Supreme pervaded his work as 625). at We said Del Vecchio S.Ct. clearly: put not have it more Court could require dis- appearances [do not] “bad alone judge to have the trial is discovered “[W]hen (31 1372), that an qualification” F.3d at rendering judg- a biased had some basis requires judge’s dis- external influence the ment, his actual motivations are hidden from qualification involved influenee[ ] when “the review, pro- presume that the and we must motivation, at the heart of human str[ikes] Hillery, impaired.” Vasquez v. 474 cess was difficult, if average man would find it 617, 623, (id. L.Ed.2d 106 S.Ct. 88 impossible, influence aside” to set the (1986).2 1373). My colleagues I been 598 at and 21, (remarks (N.D.Ill. 1994) July government attorney of Assistant 1. Consider the words of a Mendeloff). Attorney prosecuted Maloney: who United States Scott [Maloney] tough judge was and hard- As nosed. course, prosecu- recognize, that there are 2. I of working Many prosecutors in his liked judges judges and defense-minded tion-minded tough and hard- courtroom because he was although predispositions can have and that these things one that I have heard nosed. But parties very impact the kind of trial real lawyers again in the com- over and over munity receive, recognize ordinarily this bias do not far; that he is that he took it far too 688; deprivation. at See ante as a constitutional ruthless; heartlessly meted out was that he (Easter- Vecchio, 31 F.3d at 1390-91 see also Del brook, |T]he only any compassion. sentences without all, J., are, concurring). Judges after hu- compassion time there was that we can see has beings, into and we dare not fool ourselves man money being to do with the times in which judge completely thinking can divorce passed. predilec- experiences her own and Maloney herself from Robert United States v. Thomas J. and McGee, Benjamin 477, (majority); see also Sentencing tions. Id. at 1372 Tr. 559-60 No. 91 CR

701 course, fealty realize, Maloney’s no I Although crimes reveal and Collins judge, my by coEeagues jury, as a none- by Maloney. to his oath were convicted relinquish presumption own; theless refuse Jurors have minds can fairly that he acted when not bribed. The defy expectations and do judge. judge accepts “a who notion that bribes jury That is but reason that one been corrupt in “a suffi- some all” is not eases very viewed as “the paEadium some ciently compelling empirical proposition,” government.” 83, free The Federalist No. at they say, govern- treat this (Alexander Hamilton) (Clinton case as 499 Rossiter peti- had ment bribed convict 1961); Louisiana, ed. see Duncan v. 391 U.S. at 690. not an tioners. Ante But this is 145, 155-58, 1444, 1451-52, 20 empirical assign matter. We cannot value (1968). ignore L.Ed.2d 491 But we cannot a; fair, judge’s abiEty to a divide judge influence that in a retains even y (y representing Maloney’s taking), bribe Lockhart, jury trial. Walker v. See 726 F.2d whether than and determine the result is less (8th Cir.1984) (en 1238, banc) (Bright, constitutionaEy impar- minimal level of J., dismissed, 1222, dissenting), cert. 468 U.S. tiaHty, many z. Like so other elements of our 17, (1984), 82 L.Ed.2d 912 cert. justice requires democracy, leap of faith: denied, S.Ct. defendant presumed faith that the fact L.Ed.2d 738 I do not refer so much proven guilty beyond innocent until a reason- abiEty judge to the to communicate his doubt; prosecutor able faith that opinions through eyebrows, raised alike wiE act advo- defense counsel as zealous sarcasm, questioning choice bits of principals cates for their within confínes strays advocacy, although witnesses that into ethics; of law faith that trial E.g., happens. Dellinger, 472 F.2d at party wiE favor no but wiE strive “to hold the 386-88; Filani, see also United States v. nice, clear, balance true between (2d Cir.1996); F.3d v. Row- Bufford Turney, state and the accused.” 273 U.S. at (5th Cir.1993). Cos., I crimes shat- extraordinary abiEty mean the trial ter that We have beEeve faith. no reason to the trial shape itself. It is she possessed that had and Collins suffi- hear, jury may decides what evidence the willing attorneys, cient funds and could may jury, how counsel behave front of the bought acquittals Maloney. not have made, arguments may may what be how suggests Maloney’s That that was not alone made, legal principles be what must Bracy the court of “law” to which and Collins even, apply, significant degree, to a who were entitled as the forum for trial. Thus, jury. wül sit on the Oven when reason, do testi- We based on Swano’s her, partial verdict is not entrusted to a mony, Maloney’s corruption beEeve influence, directly judge great retains not beyond extended the cases in which he ac- upon jury, upon myriad then events bribe, cepted and that a saw unfixed jury’s See culminate decision. opportunity defen- eases as an to “screw” the (7th 436, Tyson Trigg, v. 50 F.3d 439 Cir. thereby dant and further his own ends as a — denied, 1995), U.S.-, cert. “empirical” proof bribe taker. No is neces- (1996).3 697, 133 655 L.Ed.2d sary to demonstrate did equal abiEty to monitor of not stand before the law in Our own the influence judge, the trial and to of courtroom. discern the taint Cardozo, rights greased N. The Nature Process defendant who has not his Judicial of a (Yale 1921). palm. Univ. 168-69 Press But the distinc- judge, tion between the honest who labors degrees varying prej- plenty of success to his In there were rise above this case issues udices, judge, willingly implicated Judge Maloney's thus dishonest discretion and yields ability against oath and abandons his to the coarsest of his to influence case simply credibility questions proclivities, presented cannot be overstated. We and Collins: the assuming judge by petitioners' suppress key evi- have no business that a who is motion to witnesses; dence; willing acquit bolstering an accused a few murderer for witnesses; protect impeachment thousand dollars will make effort to the collateral of defense

702 judge narrowly Appel- might have rendered the circumscribed. reasonable partiality, is rulings. that can But we assume the rea- the mundane decisions same late review (the judge malignant exclusion act for party’s case sonable does not or break make evidence, ends, key piece that she exercises admission E.g., is limited. typically quite example) discretion, judicial enlightened by a sound Marshall, 1097, F.3d v. 75 States United intelligence learning, controlled Cir.1996) (7th issues); (evidentiary 1109 law, principles courage of firm sound 192, Pulido, 69 F.3d 204 v. United States mind, with the calmness of cool combined Cir.1995) (limitations (7th on cross-examina- swayed by partiality, sympa- free from 488, Fish, tion); v. 34 F.3d States 495 warped thy by prejudice nor nor moved Cir.1994) continuance); (request kind influence save alone the over- $94,000.00 Currency, v. United States whelming passion just. that which to do (7th Cir.1993) 778, (questions 2 788 F.3d Co., Ry. Davis v. Boston Elevated 235 Mass. dire). posed In the rare instance on voir 482, 126 841, (1920); Henry 844 see also N.E. error, it is than more often that we find Discretion, Friendly, About J. Indiscretion E.g., Page, harmless. Jones v. 76 deemed (1982) 747, (“discretionary L. EMORY J. 784 31 (7th Cir.1996). 831, Even 855-56 errors F.3d ‘inclination, are not court’s choices left to a may be of constitutional dimension labelled judgment; judgment but to its and its is to Tyson, F.3d at 446-47. benign on review. 50 ’”) guided by legal principles” be sound Theoretically, require we could more Burr, (quoting 25 F. United States v. Cas. searching review of record when there is (C.C.Va.1807) (No. 14,692d) (Marshall, 35 corrupt, the trial evidence that C.J.)). If, hand, the other exer fooling we to think that would ourselves reasons, cises her discretion for invidious she expose even efforts suffice to our best authority. has exceeded See her Steven. ways the judge’s which criminal behav Davis, Alan Childress and Martha S. FEDER- ior have tainted the trial. See United Review, § 4.01 4-2 AL Standards Of (2d Guglielmini, States (2d 1991); through Wong Wing Hang 4—3 ed. (“Few Cir.1967) claims more difficult (2d INS, Cir.1966) F.2d judge, resolve than the claim that the trial J.). (Friendly, But, except in the rare case jury trial, presiding thrown over has obvious, judge’s agenda we weight in one favor of side to such extent expect autopsy cannot a trial and find that it said trial has been cannot be that the judge’s cancer of the cor- one.”), denied, fair cert. ruption decisionmaking. her invaded L.Ed.2d much So majority “unlikely” When the finds it goes on in the courtroom that the written discretionary rulings trial of which Why can never else do record reveal. complain product and Collins of routinely grant so much deference (ante 690), Maloney’s corruption it doing at judge, sees trial who and hears the witnesses exactly what faulted for hand, supervises first who the trial from doing: speculating. finish, gauge impact can start to best any development upon of before cannot, therefore, We hide behind the acquiescence him? Our in the decisions of jury’s simply verdict. We cannot know what by prag the trial court is much dictated as Maloney’s may impact corruption have had by principle. matism as jury’s on the trial on the decision. Cf. 260-64, corruption Vasquez, 474 106 at charge It is no answer to U.S. at S.Ct. (discrimination Maloney’s grand jury discretionary rulings on their not ren- 622-24 trial). appear by subsequent to fall harmless The face within the realm of reason. dered against Bracy may See ante at 690. All is that and Collins seem that means case; jury; my colleagues improper argument but con- to the outcome cede, prior sentencing denial of a continuance rulings may these the cumulative effect of hearing; hearings. sentencing and the (cit- refusal to sever “greater imagine.” at than we Ante 690 singly, Maloney’s Viewed rul- none 439). ing Tyson, 50 F.3d at ings on these issues seem critical

703 ,us overwhelming, strip given but does not that defendants be trials before honest right process. them of their to due “No judges, I believe we have no choice but to [them], against matter what evidence was step path take the first down that here. We [they] right impartial had to have an Constitution, cannot turn our backs on the 535, judge.” Tumey, 273 at at U.S. especially petitioners’ very when the lives are Nor, principle, 445. as a matter of can the else, at If nothing stake. factually “[d]eath is process presumably appellate unbiased re- different. Death is final. Death is irremedi- Maloney’s corruption;- taint view cure the able. Death Anthony is unknowable.” G. Bracy and Collins were “entitled to a neutral Amsterdam, argument, Tr. of oral Gregg v. judge and detached in the first instance.” Georgia, 153, 2909, 428 U.S. 96 S.Ct. Ward, 61-62, U.S. S.Ct. at 84. (1976) (No. 74-6257), L.Ed.2d quoted May (Peter Ultimately, although my colleagues ... con It The Please Court plausibility Stephanie 1993); cede the of the notion that a Irons & Guitton eds. see judge’s corruption 238, Georgia, 306, cannot be confined to the also Furman v. bribe, accepts (1972) cases in which he de 33 L.Ed.2d 346 it, finding consequences (Stewart, J., cline embrace concurring).

“unacceptable.” Maloney Ante at 689. alone 6,000 presided over some cases. See United 3. States v. Thomas J. and Robert quality justice we can claim McGee, to have No. 91 CR 1994 WL achieved in by this nation is not (N.D.Ill. 1994). measured Sentencing July Tr. 571 judges what our best can.do but believe, what the My colleagues perhaps rightly worst, judges of our so, Today have done. that we cannot vacate the convictions of say that Thomas handiwork Bracy calling and Collins without into doubt good enough.. defendant, An many ap- Illinois judgments only other entered not (the pears, appear is entitled to by Maloney judge before a Illinois far thus who is not under corruption bribery, convicted of indictment for Ill. prosecu murder 56(a)(1), tions), today’s opinion S.Ct. R. deprives but also the seventeen other Cook him County judges right appear guilty taking found before a bribes. expanse engaged bribery. Ante at who is not Bracy 689. Given the of time that passed judgments since these Collins will thus have to were en be content with the tered, board, judgment were retrials ordered across the of a criminal. I do not know which many guilty individuals, there are doubtless I shocking: quality find more the base even, go justice murderers who would It free. is an and Collins received in the appalling prospect. courts, But we must not holding allow Illinois today our that the paralyzed by possi ourselves to become requires Constitution no more. today

bilities. validity We decide not the every judgment corrupt ever rendered judge, but the fate of two individuals who are n must, I finally, say a word about the ma pay penalty about to the ultimate criminal Lane, jority’s Teague invocation of having without been afforded the most basic 103 L.Ed.2d 334 process. rudiment of due What are we to Teague generally Ante at 689. Collins, bars say had the application honest, of “new rules” of federal law right impartial judge to an but that Teague’s proscription on habeas But review. past corruption the breadth of in the Illinois jurisdictional, Youngblood, is not v. judiciary costly Collins makes it too for us to enforce 37, 41, 2715, 2718, 111 right? that U.S. 110 S.Ct. Are to become the latest (1990), L.Ed.2d if taking, victims of the state fails to bribe and we his Teague, may, invoke not accomplices after the fact? com The Constitution ourselves, Branch, easy pelled, was not written for cases and to do so Goeke v. likeable — defendants, U.S.-,-, 1275, 1276, 131 uphold and we are sworn to it no (1995) curiam). Knowing (per matter what the result. full well L.Ed.2d 152 See Stew Lane, 296, perils confront us we insist art v. 304-05 F.3d Cir. novelty principle that a defendant J., supplemented, 1995) concurring), (Ripple, 955, not on the take. cert. to a who is petition is entitled reh’g, 70 F.3d filed for 95-7444). 1996) (No. (Jan. Teague has in this circum The state invocation Our like a peti precedent to the look less Teague as a defense stance makes cited never I am judicial corruption, and from the retroac protecting shield State tioners’ claim of this application the circumstances of new rules than sword tive convinced sponte upon it our sua reliance of constitutional depriving case habeas warrant denying petition long recognized. alternate basis been rights as an that have at 304 they seek. See Stewart the relief ers case,

(concurrence) (“Because, capital in a 5. Teague can often mean invocation County judges Cir- Eighteen of the Cook life and death for difference between corruption convicted of cuit Court have been particularly circum petitioner, we need to be think in decade. We would like to the last Teague invoke sua spect as to when we shall County rampant corruption on the Cook majority no reason The offers sponte.”). past. But it will not bench is relic here, Teague particularly apposite why be, be, long it cannot so as we refuse it news that I none. Since when is discern just fundamentally at odds recognize how right has the to be tried before the accused corruption constitutional is with the honest, impartial judge? I had rather guarantee process. due Like Terrence sys of our thought that to be a cornerstone Hake, expose who risked his own career indeed, justice. Supreme Court tem of And judges, in criminals clothed the robes of anything notion to be precedent reveals the play restoring integ- we too have a role to 1927 decision Tu- but novel. The Court’s rity bench. We cannot embrace the example, that when a rney, for holds judicial deepening without services of outlaws has a financial incentive to see the defendant already left on the stain their crimes have convicted, sufficiently impartial is not he our courts. 531-35, purposes. constitutional is, respectfully I dissent. case in a real 47 S.Ct. at 444-45. This sense, Turney. I but a factual variant of

grant yet that no court found it neces

sary judge engaged in serial to hold that a

bribetaking impartial adjudicator is not the requires, the Constitution argue respect might that the rule the one BAREFIELD, Benoit, Eddie Dave Sandra petitioners posit by prece not dictated “was al., Bennett, et Plaintiffs- W. existing [their] convietion[s] dent at the time Appellants, —— Bohlen, Caspari final.” became -, -, 127 L.Ed.2d WINNETKA, an Illinois VILLAGE OF (1994) (quoting Teague, 489 U.S. at municipal corporation, Defendant- 1070) (emphasis Teague). But 109 S.Ct. at Appellee. something in surely common counts for sense analysis. Greylord prosecu Teague No. 95-3301. yet place in tions had not taken 1981 when Appeals, Court of tried, United States but the State and Collins were Seventh Circuit. ignorant of Illinois cannot claim to have been bribery illegal of the notion that Argued Feb. 1996. belong prison, judges accept bribes April 1996. Decided short, is, nothing on the bench. There surprising petitioners’ claim. The Rehearing May Denied (not prospect retrying Bracy and Collins to mention other defendants convicted Maloney) for the

before is an onerous one

State, nothing but that to do with burden

Case Details

Case Name: William Bracy v. Richard B. Gramley, Roger Collins v. George C. Welborn

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Jun 26, 1996

Citation: 81 F.3d 684

Docket Number: 94-3801, 94-3807

Court Abbreviation: 7th Cir.