Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. Nos. 93 C 5328, 93 C 5282--William T. Hart, Judge.
Before POSNER, Chief Judge, and CUMMINGS and ROVNER, Circuit Judges.
William Bracy and Roger Collins were convicted in an Illinois state court in 1981 of three murders committed the previous year. They were sentenced to death and after exhausting their state remedies (see People v. Collins, 478 N.E.2d 267 (Ill. 1985); 606 N.E.2d 1137 (Ill. 1992)) sought habeas corpus in federal district court. Judge Hart denied them relief, United States ex rel. Collins v. Welborn, 868 F. Supp. 950 (N.D. Ill. 1994), and they have appealed, arguing that the state denied them due process of law both at their trial and in the sentencing hearing.
The victims had been taken, bound, from an apartment in a building on the south side of Chicago and had been driven to a viaduct and there shot to death with pistols and a shotgun. The main prosecution witness was Morris Nellum, an accomplice who testified for the government in exchange for being charged only with concealing a felony and promised that the state would recommend a sentence of only three years. (In fact he received only two and a half years--and of probation, not prison.) Nellum testified that Collins had summoned him to the apartment, where he had watched as the victims were led out of the apartment and into a waiting automobile by Bracy, Collins, and a third man, Hooper. (Hooper was tried separately, convicted, and sentenced to death. See People v. Hooper, 552 N.E.2d 684 (Ill. 1989), affirming the conviction but vacating the death sentence. On remand, Hooper was again sentenced to death, and this time the Supreme Court of Illinois affirmed. 1996 WL 30547 (Ill. Jan. 25, 1996).)
Collins told Nellum to drive Collins's car, which was parked near the apartment building, to the viaduct. Collins and Hooper then got into the car that contained the three victims and drove away, followed by Bracy in another car. Nellum waited a few minutes and then drove to the viaduct as well. As he approached it, he heard shots. He stopped the car. Collins jumped in and they sped off. Later the two drove to Lake Michigan and Collins threw two pistols into the lake. Nellum, after he was arrested, told the police where the guns had been dumped, and the police found them there. Bullets found in the bodies of the dead men were of the type fired by these guns, although the guns had so deteriorated as a result of their prolonged immersion in the lake that no positive ballistics identification was possible.
Nellum's testimony was corroborated not only by the finding of the guns but also by testimony from a resident of the apartment building who saw the group leaving on the fatal night. She identified Collins, Nellum, and Hooper in court as resembling three of the men she had seen. She testified that one of the three had been wearing a wide-brimmed hat--and Nellum testified that Collins had indeed been wearing such a hat that night. Further corroboration of Nellum's testimony came from another resident, who testified to having seen Bracy and Collins in the building that night, and from a witness who testified that Bracy had borrowed a pistol from her before the murders and that afterward, when they were in a bar and she asked for the pistol back, he had told her that he had murdered some people with it. One of the pistols found in the lake on the basis of Nellum's tip turned out to be the pistol that she had lent Bracy. This witness also testified that in the same bar she had seen a woman give Bracy a sawed-off shotgun that Bracy had then handed to an employee of the bar, apparently for safekeeping. Bracy and Collins testified on their own behalf, denying any participation in the murders, and presented a parade of alibi witnesses of dubious credibility.
The evidence of guilt presented at the trial was compelling, and while there is a question, as we shall see, about the veracity of some of Nellum's testimony, even if that question were resolved in the defendants' favor we would have no basis for doubting the guilt of either Bracy or Collins. Hooper was tried separately because his confession implicated them and the confession is further evidence, though of course not evidence presented to the jury in our case, that they really did, along with Hooper, commit the murders. Because this evidence was inadmissible it cannot be used to show that the errors of which Bracy and Collins complain are unlikely to have affected the verdict. Cf. Sullivan v. Louisiana, 113 S. Ct. 2078, 2081 (1993); United States v. Ross, No. 92-1449, slip op. at 15-16 (7th Cir. Feb. 2, 1996). But the evidence that was admissible shows that they were guilty and this is important because, with a few exceptions, a person convicted in a state court may not obtain an order for a new trial from a federal court on the basis of constitutional errors committed at the trial unless the errors resulted in actual prejudice, or, equivalently, unless they substantially influenced the verdict, Brecht v. Abrahamson, 113 S. Ct. 1710, 1722 (1993), or, in other words, were likely to have made the difference between conviction and acquittal.
The only error that the petitioners argue requires a new trial regardless of whether it was prejudicial is that the judge who presided at their trial was later convicted of having accepted bribes from criminal defendants in several other cases (including murder cases) around the time when Bracy and Collins were tried. United States v. Maloney, 71 F.3d 645, 650-52 (7th Cir. 1995). There is no suggestion that Bracy and Collins bribed or offered to bribe him. The argument rather is that Judge Maloney came down hard on criminal defendants in cases in which he was not bribed, to avoid suspicion that he was on the take, to cancel any bad impression that his acquittals might make on the voters--maybe even to make defendants desperate to bribe him, fearing he would punish them with adverse rulings if they did not. There is no evidence, but only conjecture, that Maloney actually did lean over backwards in favor of the prosecution in this or any other case in which he was not bribed; did, that is, rule against the defense only because he was taking bribes in other cases. Collins argues that evidence is unnecessary, and Bracy that if it is necessary their request for discovery should have been granted.
A judge could be biased and yet the bias not affect the outcome of the case. But judicial bias is one of those "structural defects in the constitution of the trial mechanism," as distinct from mere "trial errors," that automatically entitle a petitioner for habeas corpus to a new trial. Brecht v. Abrahamson, supra, 113 S. Ct. at 1717; see Sullivan v. Louisiana, supra, 113 S. Ct. at 2081; Tumey v. Ohio, 273 U.S. 510, 535 (1927); Tyson v. Trigg, 50 F.3d 436, 442 (7th Cir. 1995). What is bias? Defined broadly enough, it is a synonym for predisposition, and no one supposes that judges are blank slates. There are prosecution-minded judges, and defense-minded judges, and both sorts have predispositions--biases that place an added burden on one side or the other of the cases that come before them. Yet no one supposes that the existence of such biases justifies reversal in cases where no harmful errors are committed. The category of judicial bias is ordinarily limited to those predispositions, real or strongly presumed, that arise from some connection pecuniary or otherwise between the judge and one or more of the participants in the litigation. Whether the present case even fits that mold may be doubted, but, in any event, for bias to be an automatic ground for the reversal of a criminal conviction the defendant must show either the actuality, rather than just the appearance, of judicial bias, "or a possible temptation so severe that we might presume an actual, substantial incentive to be biased." Del Vecchio v. Illinois Dept. of Corrections, 31 F.3d 1363, 1380 (7th Cir. 1994) (en banc); see Branion v. Gramly, 855 F.2d 1256, 1268 (7th Cir. 1988); Margoles v. Johns, 660 F.2d 291, 296-97 (7th Cir. 1981) (per curiam). In rejecting reversal on the basis of a mere appearance of partiality or bias Del Vecchio relied in part on a presumption, obviously inapplicable here, that judicial officers perform their duties faithfully. 31 F.3d at 1372-73. But that was not the core of the decision. The fundamental reason that an appearance of impropriety is not alone enough to require a new trial is that it provides only a weak basis for supposing the original trial an unreliable test of the issues presented for decision in it. The fact that Maloney had an incentive to favor the prosecution in cases in which he was not bribed does not mean that he did favor the prosecution in such cases more than he would have done anyway.
Sometimes--this is the second half of the test that we quoted from Del Vecchio--the incentive to engage in biased behavior is so great that inquiry into the actuality of that behavior is pretermitted. Id. at 1372-73; see also In re Murchison, 349 U.S. 133 (1955). This rule recognizes both the practical impediments to obtaining reliable evidence of a judge's motives and the difficulty of overcoming public skepticism of judicial motives when the temptation to impropriety is great. But the automatic rule must be interpreted circumspectly, with due recognition of the cost to society of overturning the convictions of the guilty in order to vindicate an abstract interest in procedural fairness. The fact that the people for obvious practical reasons do not have judicially enforceable rights to the protection of the criminal laws (though they do have judicially enforceable rights against discriminatory withdrawal of that protection) does not warrant a court in disregarding their interests when the court is formulating rules of constitutional law. Accepting Collins's contention would require a new trial in every case, jury and non-jury, capital and noncapital, in which a judge later found to be corrupt had presided and the defendant had been convicted, even though the judge had not been bribed by the prosecutor. (If the defendant had bribed the judge and been acquitted, the double jeopardy clause probably would not bar reprosecution, Benard v. State, 481 S.W.2d 427, 430 (Tex. Crim. App. 1972)--the defendant would never have been in any actual "jeopardy." The issue has not been definitively resolved, however, David S. Rudstein, "Double Jeopardy and the Fraudulently-Obtained Acquittal," 60 Missouri Law Review 607 (1995), and obviously need not be in order to decide the present case.) Any judge who is on the take will have an incentive to adopt Judge Maloney's alleged strategy and thus always do his best (or worst) to see to it that a defendant who does not bribe him is convicted. A principled acceptance of Collins's argument would thus require the invalidating of tens of thousands of civil and criminal judgments, since Judge Maloney alone presided over some 6,000 cases during the course of his judicial career and he is only one of eighteen Illinois judges who have been convicted of accepting bribes. The fact that this is a death case magnifies the appearance of impropriety but is irrelevant to an issue that goes to the propriety of conviction rather than merely to that of the sentence.
The assumption underlying Collins's argument is that a judge's corruption is likely to permeate his judicial conduct rather than be encapsulated in the particular cases in which he takes bribes. The assumption is plausible but the consequences are unacceptable. If we were to inquire into the motives that lead some judges to favor the prosecution, we might be led, and quickly too, to the radical but not absurd conclusion that any system of elected judges is inherently unfair because it contaminates judicial motives with base political calculations that frequently include a desire to be seen as "tough" on crime. See generally Steven P. Croley, "The Majoritarian Difficulty: Elective Judiciaries and the Rule of Law," 62 U.Chi.L.Rev. 689, 726-29 (1995).
No precedent has been cited to us for invalidating a judge's rulings in a case in which he is known not to have taken a bribe, simply because he took bribes in other cases. Teague v. Lane, 489 U.S. 288 (1989), disapproved the use of novel grounds to grant relief on an application for habeas corpus. The state does not cite Teague, but we are free to apply it anyway. Caspari v. Bohlen, 114 S. Ct. 948, 953 (1994); Eaglin v. Welborn, 57 F.3d 496, 499 (7th Cir. 1995) (en banc). The argument for automatic reversal is not compelling even if its lack of a secure grounding in prior cases and its alarming potential irradiation of future cases are ignored. While a corrupt judge might decide to tilt sharply to the prosecution in cases in which he was not taking bribes--to right the balance as it were--it is equally possible that he would fear that by doing so he would create a pattern of inconsistent rulings that would lead people to suspect he was on the take. When a severely prosecutorial judge sides unexpectedly with the defense in some arbitrary subset of cases, corruption is a possible explanation. If instead the judge maintains a generally pro-defendant stance, he may jeopardize his chances for re-election (Maloney was appointed to a vacancy, but he had to stand for election, and did so, when the term of his original appointment expired), and the number and size of the bribes he receives may be diminished because defendants will be less fearful of the consequences of not bribing him. But he may also still any suspicions that he is on the take, because his rulings in favor of defendants in cases in which he is bribed will not stand out.
This was a jury trial rather than a bench trial, moreover, and acquittals in jury trials are more likely to be blamed on the jury than on the judge. When as sometimes happens a judge campaigning for election is accused of never having convicted a rapist or sentenced a murderer to death, cf. Buckley v. Illinois Judicial Inquiry Board, 997 F.2d 224, 226 (7th Cir. 1993), the reference is to bench trials, where the decision to convict or acquit is the judge's, and to sentences handed down by judges rather than, as in capital cases in Illinois, by juries unless the defendant waives a jury. It is in cases tried to the bench that the judge as decision-maker must shoulder full responsibility for the decision. When he merely presides, his responsibility for the outcome is less. We do not understand Bracy and Collins to be arguing that Maloney was more likely to sentence them to death, as distinct from being more likely to rule against them during the trial, as a consequence of his taking bribes in other cases.
We are speculating about the likely impact of Maloney's corruption on the rulings that he made at the trial of these petitioners. We also acknowledge the possibility that the cumulative effect of those rulings was greater than we imagine. Tyson v. Trigg, supra, 50 F.3d at 439. But the defendants are speculating too. Some of Maloney's rulings went against the defendants and obviously those are the ones they complain about, but they have not shown that there were so few rulings in their favor that the judge must have been biased in favor of the government. To show this would not have required an investigation, but merely a review of the transcript of the trial. It is unlikely that the specific rulings of which the defendants complain either were the product of a corrupt backward bending in the government's favor or influenced the jury's verdict. The Supreme Court of Illinois did not find any errors in the rulings.
The argument that a judge who accepts bribes in some cases is corrupt in all is not a sufficiently compelling empirical proposition to persuade us to treat this case as if Judge Maloney had taken a bribe from the government to convict. If the argument is rejected, ours is a case in which there is merely an appearance of impropriety in the judge's presiding, and an appearance of impropriety does not constitute a denial of due process. Appearance of impropriety there was. We know this because if a judge were under indictment for accepting bribes he would not be permitted to hear any cases. Ill. S. Ct. R. 56(a)(1). But without more a defendant's conviction cannot be set aside.
The petitioners also seek discovery, so that they can try to find out whether there was actual bias by Judge Maloney at their trial. Discovery is available in a habeas corpus proceeding not as a matter of course as in an ordinary civil litigation but only if the district judge finds "good cause" to order discovery. Rule 6(a) of the Rules Governing Section 2254 Cases in the United States District Courts; East v. Scott, 55 F.3d 996, 1001 (5th Cir. 1995). The petitioners want to study a large sample of Judge Maloney's cases to see whether a pattern of favoring the prosecution in cases in which he was not bribed emerges, to depose "some of those persons and witnesses who were most intimately associated with Judge Maloney who may be able to provide material information on his behavior in cases where he didn't get bribes," and to get hold of any evidence that the federal government might have obtained in its prosecution of Maloney that he really did lean over backwards in favor of the government in cases in which he was not bribed--perhaps in this very case. The first proposal would not require formal discovery at all, since Maloney's cases are a matter of public record. The third too; in the first instance at any rate, all it would require is a perusal of the transcript of Maloney's trial. It is true that a part of the trial record was sealed, but it was unsealed in August of 1994, so that the petitioners' lawyers have had a year and a half to look for clues in that record. The second proposal is for a fishing expedition. Even if the expedition discovered that Maloney did lean over backwards in favor of the prosecution in cases in which he was not bribed, in order to conceal his taking of bribes in other cases, it would not show that he followed the practice in this case. This may be a case in which any judge would have ruled in favor of the government in the instances of which the defendants complain.
A party to an ordinary civil suit need not demonstrate good cause in order to be permitted to conduct discovery. A petitioner for habeas corpus must, because collateral attack on a criminal judgment that has become final is an extraordinary remedy. Without the aid of formal discovery the petitioners' able counsel could have (and perhaps have) studied the pattern of Judge Maloney's rulings in cases in which he did and cases in which he did not take bribes, could have (and perhaps have) inventoried his rulings in the present case to see whether they consistently favored the prosecution, and could have (and perhaps have) studied the record of Maloney's prosecution by the United States for clues to their theory of bias. If none of these public sources of information has yielded any evidence of bias in our case--and none has--the probability is slight that a program of depositions aimed at crooks and their accomplices and likely to be derailed in any event by real and feigned lapses of memory will yield such evidence.
We do not make light of judicial corruption. It has tainted the judicial system of Illinois, caused unjust acquittals, jeopardized convictions, tarnished the legal profession, and raised profound doubts not only about the state's method of selecting judges but also about the entire political culture of the state. But in the circumstances of this ...