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November 24, 1999


The opinion of the court was delivered by: Hart, District Judge.



A. State Proceedings

Late during the night of November 12, 1980, Frederick Lacey, R.C. Pettigrew and Richard Holliman were kidnapped, robbed, and shot to death execution-style near a viaduct in Chicago, Illinois. In March of 1981, Roger Collins, William Bracy, and Murray Hooper were indicted and charged with armed robbery, aggravated kidnapping, and murder of the three victims. Hooper, who gave a statement inculpating Collins and Bracy, was tried separately.*fn1 All three were tried before Judge Thomas J. Maloney in the Circuit Court of Cook County, Illinois.

Morris Nellum, who admittedly took part in the crimes, was the principal witness for the prosecution of Bracy and Collins. He was allowed to plead guilty to concealing homicidal deaths and was sentenced to a short prison term. Nellum testified that the victims had been bound and taken from an apartment, driven to a viaduct, and there shot to death with pistols and a shotgun. Two other witnesses placed Collins, Hooper, and Nellum at the location of the kidnapping, an apartment building, and noticed that the victims appeared to be bound when they left the building. Nellum identified a place where weapons used in the crime were thrown into Lake Michigan. The motive of the crimes was robbery.

A .38-caliber Charter Arms revolver and a .357 Rugger revolver were recovered from Lake Michigan and identified. The .38-caliber Charter Arms revolver was stolen from Christina Nowell by Bracy, who stated to her, when she sought its return, that "he had murdered some people with [her gun] and threw it in the Chicago River." The Charter Arms revolver was traced by serial number as the one Bracy stole from Nowell. Nowell also testified that she was present when a woman gave Bracy a sawed-off shotgun in a bar. Expended shotgun shells were found at the location of the murders.

The testimony of the witnesses is set forth in detail in opinions of the Supreme Court of Illinois, see People v. Collins, 106 Ill.2d 237, 87 Ill.Dec. 910, 478 N.E.2d 267, cert. denied, 474 U.S. 935, 106 S.Ct. 267, 88 L.Ed.2d 274 (1985) ("Collins I"); People v. Collins, 153 Ill.2d 130, 180 Ill.Dec. 60, 606 N.E.2d 1137 (1992), cert. denied, 508 U.S. 915, 916, 113 S.Ct. 2355, 124 L.Ed.2d 263 (1993) ("Collins II"), the Court of Appeals for the Seventh Circuit, see Bracy v. Gramley, 81 F.3d 684 (7th Cir. 1996) ("Bracy I"), rev'd in part, 520 U.S. 899, 117 S.Ct. 1793, 138 L.Ed.2d 97 (1997) ("Bracy II"), and this court, see United States ex rel. Collins v. Welborn, 868 F. Supp. 950 (N.D.Ill. 1994) ("Collins III"), aff'd, Bracy I, rev'd in part, Bracy II. As previously stated by the Court of Appeals and this court, the evidence of guilt was compelling. Bracy I, 81 F.3d at 687; Collins III, 868 F. Supp. at 978.

Relevant to the sentencing hearing of Bracy was evidence that, on December 31, 1980 in Arizona, Bracy and Hooper murdered two people and attempted to murder a third person. That was less than two months following the murders in Illinois.*fn2 Bracy and Hooper were hired to commit the Arizona murders. See Bracy III, 703 P.2d at 481; Hooper I, 703 P.2d at 494.

The petitioners were convicted of armed robbery, aggravated kidnapping, and murder. A jury found the existence of statutory aggravating factors and separately concluded that there were no mitigating factors sufficient to preclude the imposition of the death penalty. Petitioners were sentenced to death and concurrent 60-year prison terms for armed robbery and aggravated kidnapping. On direct appeal to the Supreme Court of Illinois, the conviction and sentences were affirmed, except that the kidnapping sentences were reduced to 30 years because the kidnapping was not for ransom. Collins I, supra. Post-conviction relief was subsequently denied. Collins II, supra.

B. Federal Proceedings

Bracy and Collins filed federal habeas corpus petitions which were consolidated in this court. After their state court trial, Judge Maloney was indicted on federal charges and subsequently convicted of racketeering offenses involving the acceptance of bribes to fix criminal cases. See United States v. Maloney, 71 F.3d 645 (7th Cir. 1995), cert. denied, 519 U.S. 927, 117 S.Ct. 295, 136 L.Ed.2d 214 (1996).

Petitioners raised a number of claims in their federal habeas corpus petitions including bias on the part of the trial judge. Petitioners did not attempt to bribe Maloney nor did he solicit a bribe from them. Petitioners contended, however, that Maloney compensated for his defendant-favoring rulings in cases involving bribes by being biased against defendants who did not pay bribes. Petitioners did not contend that they had sufficient evidence to presume or to show what they called actual "compensatory bias." Instead, they contended that they were entitled to additional discovery in order to attempt to prove Maloney's compensatory bias against them. It was held that they had failed to show good cause for discovery, Collins III, 868 F. Supp. at 990-91, and relief was denied on all claims. Id. at 967-94. The Court of Appeals for the Seventh Circuit affirmed by a divided vote. See Bracy I. The Supreme Court of the United States granted certiorari limited to the issue of whether petitioner Bracy*fn3 had made a sufficient showing of good cause for discovery. Holding that he had, it reversed and remanded for discovery on the due process claim of actual judicial bias. See Bracy II.

C. Discovery and Trial Issues

On remand to this court, petitioners were permitted to undertake document discovery and to obtain deposition testimony. Petitioners sought to depose Maloney, who is in federal custody in California. Maloney refused to give a deposition, claiming not to have had sufficient notice. A writ of habeas corpus ad testificandum was issued sua sponte to bring Maloney before this court for the purpose of taking his testimony. Maloney's testimony is now part of the record in this case.

After completing discovery, both sides moved for summary judgment. Finding that material issues of fact existed with respect to issues of actual judicial bias, summary judgment was denied. See United States ex rel. Collins v. Welborn, 49 F. Supp.2d 597 (N.D.Ill. 1999) ("Collins IV").

In Collins IV, 49 F. Supp.2d at 602-04, it was held that the rule of Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), does not bar petitioners' claim of actual judicial bias. This holding was distinguished from indications in Bracy I, 81 F.3d at 689-90, that a claim based on an appearance of impropriety (not actual bias) would be barred by Teague. Compare also Bracy I, 81 F.3d at 704 (Rovner, J., dissenting) (claim that judge was actually partial not barred by Teague).

In a case decided by the Court of Appeals after the Supreme Court's opinion in Bracy II, the Court stated with reference to Bracy II that proof "that a judge is bribed in some cases does not establish that he was not impartial in others," but rather warrants further inquiry. Cartalino v. Washington, 122 F.3d 8, 10 (7th Cir. 1997). It is also clear from Cartalino that the burden of proof of actual bias did not shift from the petitioners. Cf. id. at 11. Whether and under what circumstances a judge's bribetaking in other cases will warrant relief in a case where money did not change hands was said to await the development of a complete record in Cartalino.

Bracy filed an affidavit with respect to the background, appointment, and conduct of his trial attorney. This affidavit is relevant both to the scope of the permitted discovery and the findings to be made by this court on the issue of Maloney's judicial bias. Bracy stated that his trial attorney was a former associate in Maloney's corrupt law practice and was appointed with the understanding that he would not object to a prompt trial so as to deflect attention from cases in which Maloney had taken bribes. The Supreme Court stated:

  We emphasize, though, that petitioner supports his
  discovery request by pointing not only to Maloney's
  conviction for bribe taking in other cases, but also
  to additional evidence, discussed above, that lends
  support to his claim that Maloney was actually biased
  in petitioner's own case. That is, he presents
  "specific allegations" that his trial attorney, a
  former associate of Maloney's in a law practice that
  was familiar and comfortable with corruption, may
  have agreed to take this capital case to trial
  quickly so that petitioner's conviction would deflect
  any suspicion the rigged Rosario and Chow cases
  might attract.

Bracy II, 520 U.S. at 909, 117 S.Ct. 1793.

In describing the discovery sought, the Supreme Court stated that petitioner "requested (1) the sealed transcript of Maloney's trial; (2) reasonable access to the prosecution's materials in Maloney's case; (3) the opportunity to depose persons associated with Maloney; and (4) a chance to search Maloney's rulings for a pattern of pro-prosecution bias." Id. at 902, 117 S.Ct. 1793. The petitioners have been accorded the requested discovery and the case is now before this court for the entry of findings of fact and conclusions of law with respect to the issue of actual judicial bias.

This court must accord a presumption of correctness to any factual findings of the State courts. 28 U.S.C. § 2254(d)(1) (1993). There are no State court factual findings with respect to the issue of judicial bias, however.

The parties agreed that, other than Maloney's testimony, no live witnesses would be presented. At the time the parties moved for summary judgment, Maloney had not testified and William Swano had invoked the Fifth Amendment. Thereafter, the parties obtained Maloney's testimony, submitted some of the record from Maloney's trial and sentencing, transcripts, and court records from other cases tried before Maloney, some non-public documents obtained from the United States Attorney, and deposition testimony from associates of Maloney and attorneys involved in petitioners' trial. The parties elected to rely on Swano's testimony from the Maloney trial and not raise the question of whether Swano should be compelled to provide new testimony beyond his invocation of the Fifth Amendment.


Based on the testimony, statement of uncontested facts, depositions, transcripts from other cases, the state court record of petitioners' prosecution, and exhibits submitted, the court finds the facts to be as follows:

A. Uncontested Facts

The parties have expressly represented that the following facts are uncontested:

1. Following a jury trial in 1981, in the Circuit Court of Cook County, Illinois, Roger Collins and William Bracy were found guilty of armed robbery, aggravated kidnapping, and the murders of Frederick Lacey, R.C. Pettigrew, and Richard Holliman. A two-stage sentencing hearing was held at which the same jury found the existence of statutory eligibility factors and concluded there were no mitigating factors sufficient to preclude imposition of the death penalty. The trial judge, Thomas J. Maloney, sentenced Collins and Bracy to death.

2. Bracy and Collins were arraigned on March 12, 1981.

3. On May 6, 1981, Bracy's original attorney, Patrick Tuite, was given leave to withdraw on the ground that ...

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