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01/29/98 PEOPLE STATE ILLINOIS v. EARL HAWKINS ET

January 29, 1998

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT,
v.
EARL HAWKINS ET AL., APPELLEES.



The Honorable Justice McMORROW delivered the opinion of the court.

The opinion of the court was delivered by: Mcmorrow

The Honorable Justice McMORROW delivered the opinion of the court:

The State of Illinois initiated this direct appeal from an order entered in the circuit court of Cook County, which vacated defendants' convictions for murder, vacated their death sentences and ordered a new trial. 134 Ill. 2d R. 651. Pursuant to the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 1992)), Judge Deborah Dooling ruled that defendants failed to receive a fair trial because the judge in the underlying criminal trial accepted a bribe to acquit defendants of murder charges alleged against them.

This court previously affirmed defendants' convictions and death sentences on direct appeal. People v. Fields, 135 Ill. 2d 18, 142 Ill. Dec. 200, 552 N.E.2d 791 (1990). Since the facts underlying defendants' convictions are discussed in detail in Fields, we set forth here only those facts relevant to the issue before us, namely, whether the circuit court's decision to grant defendants post-conviction relief was manifestly erroneous. We affirm.

BACKGROUND

On April 28, 1984, Jerome "Fuddy" Smith and Talman Hickman, reputedly members of the Black Gangsters Goon Squad Gang, were shot to death outside of a public housing complex. The State charged defendant Earl Hawkins, George Carter and defendant Nathson Fields, members of the rival El Rukn gang, with those murders. The circuit court of Cook County, former Judge Thomas Maloney (hereinafter Maloney) presiding, found defendants guilty of first degree murder for the deaths of Smith and Hickman following a bench trial. *fn1 Both Hawkins and Fields waived their right to a jury determination of their eligibility for the death penalty, but asserted their right to a jury for the aggravation and mitigation phase. A jury found no mitigating circumstances to preclude imposition of the death penalty, and on September 19, 1986, Maloney entered a judgment of conviction against defendants, and sentenced Hawkins and Fields to death. Neither defendant's post-trial motion nor their initial post-conviction petitions contained any allegations of illegality by Maloney or any officer of the court. On February 16, 1990, this court affirmed defendants' convictions on direct appeal. People v. Fields, 135 Ill. 2d 18, 142 Ill. Dec. 200, 552 N.E.2d 791 (1990).

On June 26, 1991, a federal grand jury returned a four-count indictment against Maloney and attorneys William Swano and Robert McGee. Swano represented Hawkins during the murder trial before Maloney. McGee was a former associate of Maloney in private practice and acted as Maloney's intermediary with those who wished to bribe the judge.

The United States alleged that over the course of several years, Judge Maloney accepted bribes to influence the outcome of cases pending before him. The government charged Maloney with racketeering conspiracy, racketeering, extortion under color of official right and obstruction of justice, in violation of 18 U.S.C. §§ 1962(c), (d), 1951, 1503 (1994). The indictment alleged, among other criminal acts, that Swano, with McGee acting as a go-between, forwarded a $10,000 bribe to Maloney to acquit defendants in the Hawkins/Fields trial. The indictment also asserted that Maloney accepted bribes on at least four other occasions to fix the outcome of criminal trials, and that on three of those occasions, Swano acted as briber.

Prior to the commencement of the trial of Maloney and McGee ( United States v. Maloney, 71 F.3d 645 (7th Cir. 1995)), Swano and Hawkins agreed to testify on behalf of the United States. Testimony from other witnesses, telephone records, videotaped conversations, recorded telephone conversations, and evidence gathered through FBI surveillance corroborated the trial testimony of Hawkins and Swano. McGee testified at trial, but denied the allegations of criminal conduct. Maloney did not testify.

Evidence adduced at the Maloney trial demonstrated that between the summer of 1985 and early 1986, Swano met several times with his client, Hawkins. Swano informed Hawkins that Swano had bribed Maloney in previous instances, and that Hawkins' case could be "fixed," meaning an acquittal could be obtained, in return for a bribe to Maloney. Hawkins agreed to the scheme and identified Alan Knox as the member of the El Rukn leadership Swano could contact to obtain money for a bribe. Swano met Knox and received a "go ahead" to proceed with the bribe, and an assurance that the El Rukns would furnish the cash.

In January or February 1986, Swano contacted McGee and told McGee he wanted to talk about a "hot case" in front of Maloney. In a subsequent meeting, McGee informed Swano that Maloney authorized a discussion between McGee and Swano about the case. Swano gave McGee items from the case file and told McGee he could get $10,000 from the El Rukns to pay the judge.

Within one or two weeks, McGee contacted Swano and told Swano they could "do the fix" for $10,000, but that the defense had to present a "good case." McGee said the judge was worried about "looking bad" on a double-murder case.

On the first day of trial, Knox appeared at court with $10,000. Swano transferred the money to a folder and, after the day's proceedings, gave the money to McGee at a restaurant. Two days later, on June 19, 1986, McGee telephoned Swano and told Swano in coded language that he wanted to give the money back to Swano. When Swano asked why, McGee stated that the "State witnesses were too good and the case was going too good for the State." Swano replied "that's ridiculous," told McGee that the State's witnesses were "terrible," and complained that the defense had not had an opportunity to put on its case. He told McGee to keep the money. Swano then told Hawkins that the fix might not go through, that there may have been a leak regarding the fix from the El Rukns to the FBI, and that the judge was scared.

According to Swano, he spoke to Maloney the following day and said, "We got an agreement on this, I'm going to live up to my bargain, you've got to live up to yours." The judge replied, "Put on your case and we'll see." Swano spoke directly to Maloney again, on the first day the defendants presented evidence in their cases. Outside of the judge's chambers, Maloney asked Swano if Swano's witnesses were ready. Swano affirmed and said, "They are good, as we agreed they would be." Maloney replied, "Let's put them on."

Closing arguments concluded on June 25, 1986. Maloney advised the parties he would review the evidence and render a decision the following day. On the evening of June 25, McGee informed Swano that Maloney would not fix the case. When Swano arrived at Maloney's courtroom the next morning, the judge informed him that a lawyer had left a file folder for Swano, and that Swano should ask a sheriff to get it for him. The sheriff could not locate the folder, and when the sheriff asked the judge where he could find it, the judge retrieved the folder from his own desk and handed it to Swano. It was the same folder Swano had given McGee, and it contained $10,000. The judge entered his finding of guilty against both Hawkins and Fields later that same day.

On April 16, 1993, a federal jury found Maloney guilty on all counts of the indictment. The United States Court of Appeals for the Seventh Circuit affirmed the conviction by decision rendered November 29, 1995.

Fields and Hawkins filed amended post-conviction petitions (725 ILCS 5/122-1 et seq. (West 1992)) on September 8, 1992, and April 17, 1996, respectively. Both requested vacatur of the circuit court's verdict and convictions, and a hearing to offer proof of the allegations in their petitions. Defendants insisted that Maloney's acceptance of a bribe, its subsequent return and the judge's suspicion of a FBI investigation into his conduct "created a conflict of interest for Judge Maloney." They maintained that Maloney's self-interest prompted him to convict defendants to prove to federal authorities that no wrongdoing occurred on Maloney's part. Maloney's lack of impartiality in the outcome of their trial, defendants urged, deprived them of due process as guaranteed under the United States and Illinois Constitutions. U.S. Const., amend. XIV; Ill. Const. 1970, art. I, §§ 2, 11.

Following argument, Judge Deborah Dooling of the circuit court of Cook County entered an order on September 18, 1996, granting defendants' amended petitions, vacating their convictions and ordering a new trial. Judge Dooling noted initially that the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 1992)) does not require the circuit court to conduct an evidentiary proceeding regarding defendants' complaints, and that the statute vests the court with broad discretion to identify the evidence the court will consider in ruling on a petition. Judge Dooling found that the record before the court, consisting of pleadings, the trial transcript from United States v. Maloney, affidavits from Fields and his attorney, and the transcripts of "the state cases of Earl Hawkins and Nathson Fields" obviated a need for an evidentiary hearing in the instant matter. Judge Dooling ruled as well that defendants were denied a "fair trial before an impartial trier of fact" because Maloney had a "direct, personal, substantial, pecuniary interest" in the outcome of the Hawkins/Fields trial.

Judge Dooling rejected each of the arguments raised by the State in opposition to defendants' cause. Judge Dooling found that Fields and Hawkins had not waived their right to pursue post-conviction relief; that relief would not be barred by Hawkins' and Fields' own participation in the bribery scheme; and that Fields and Hawkins need not show actual bias by Maloney in order to prevail.

The State initiated this direct appeal pursuant to Illinois Supreme Court Rule 651 (134 Ill. 2d R. 651).

ANALYSIS

I. Standard of Review

A proceeding brought pursuant to the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 1992)) is not a direct appeal but a collateral attack on a judgment of conviction. People v. Franklin, 167 Ill. 2d 1, 9, 212 Ill. Dec. 153, 656 N.E.2d 750 (1995). The Act permits the petitioner to identify constitutional violations occurring at trial that could not be and were not previously adjudicated. People v. Foster, 168 Ill. 2d 465, 473-74, 214 Ill. Dec. 244, 660 N.E.2d 951 (1995). To win immediate relief or the right to an evidentiary hearing of his constitutional claims, the petitioner bears the burden of showing a substantial deprivation of his constitutional rights. Foster, 168 Ill. 2d at 473-74. The trial court may in its discretion forgo an evidentiary hearing and grant the petition solely on the strength of the petition and responsive pleadings. See 725 ILCS 5/122-6 (West 1992); see also People v. Reed, 84 Ill. App. 3d 1030, 1040, 39 Ill. Dec. 930, 405 N.E.2d 1065 (1980). We will disturb the circuit court's ...


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