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Moffat v. Gilmore

May 8, 1997

JAMES G. MOFFAT,

PETITIONER-APPELLANT,

v.

JERRY GILMORE,

RESPONDENT-APPELLEE.



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division.

No. 95 C 1478 Paul E. Plunkett, Judge.

Before Posner, Chief Judge, and Cudahy and Diane P. Wood, Circuit Judges.

Cudahy, Circuit Judge.

Argued September 20, 1996

Decided May 8, 1997

The former principal of Chicago's Kelvin Park High School, James G. Moffat, was convicted in 1987 of eight counts of indecent liberties with a child and sixteen counts of official misconduct. The Illinois trial court sentenced Moffat to fifteen years in prison. Moffat now comes before this court seeking a writ of habeas corpus under 28 U.S.C. sec. 2254. The district court denied Moffat's petition. We affirm.

The Illinois trial judge communicated ex parte about Moffat's trial with the prosecution, or so Moffat alleges. We consider this claim in this opinion. Moffat also argues that the state failed to prove that the statute of limitations did not bar prosecution of Moffat's sex crimes. This latter question we decide in a companion order.

I. The allegedly ex parte communication

Bitterness marked Moffat's highly publicized trial in the Circuit Court of Cook County, Criminal Division. After its conclusion, Moffat submitted motions for a new trial and for arrest of judgment to the trial judge, Judge Francis Mahon, Sr. Moffat argued the ordinary fare of insufficient evidence, prosecutorial misconduct and the like, but with an unusual addition. Moffat argued that Judge Mahon himself was prejudiced against him.

After the trial ended, Moffat claimed that he learned that Judge Mahon's son, Francis, Jr., was an assistant state's attorney -- and that the judge's son had appeared in the courtroom several times during the trial. Moffat (then and since) has expressed his objections under a variety of legal rubrics, but common to all has been the thesis that the son's presence in the courtroom intimated an unfairness to Moffat.

Judge Mahon was incensed. "[T]his is an insult to the Court," he responded from the bench. As Judge Mahon's rather irregular handling of Moffat's claims is the heart of this case, we quote the core of his retort:

My son was here a few times. He was assigned to another courtroom and because of the publicity and the interest in this case, he did come down here. He did talk to Mr. Farrell [the prosecutor]. I talked to him last night. He said he talked to Mr. O'Gara [Moffat's defense counsel] more than he talked to Mr. Farrell. Mr. O'Gara was his superior until last year when [Mr. O'Gara] left the State's Attorney's office. Farrell was his superior. So, he talked to both of them. There was nothing wrong with that, in my opinion. (Emphasis added.)

Moffat also noted that soon before his trial, the State's Attorney's Office transferred the son from the Trial Division to the Special Prosecutions Bureau. This was the same bureau that was trying Moffat. Judge Mahon understood Moffat, "at least by innuendo, to mean that because my son was transferred to another division that that is the reason I found Mr. Moffat guilty." Judge Mahon did not take kindly to this allegation either. "What an insult, what an insult to a judge," he said. The allegation had nothing to it. His son, he explained, had moved to Arson, "one of the lower Special ...


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