The opinion of the court was delivered by: Justice Heiple
The petitioner, Robert Fair, appeals from a Cook County circuit court order dismissing his post-conviction petition without an evidentiary hearing. Because petitioner was sentenced to death, this court has jurisdiction over the instant appeal pursuant to Supreme Court Rule 651(a) (134 Ill. 2d R. 651(a)). For the following reasons, we now affirm in part and reverse in part.
A Cook County jury convicted petitioner of the murders of Candace Augustus and her 11-year-old son, Gregory. The same jury sentenced petitioner to death. This court affirmed petitioner's conviction and death sentence on direct appeal. People v. Fair, 159 Ill. 2d 51 (1994). The United States Supreme Court subsequently denied petitioner's petition for a writ of certiorari. Fair v. Illinois, 513 U.S. 1020, 130 L. Ed. 2d 500, 115 S. Ct. 586 (1994).
Following petitioner's conviction, it was discovered that Cook County circuit court Judge Paul Foxgrover, who presided over petitioner's trial and sentencing, had engaged in extensive criminal conduct while on the bench between April 13, 1989, and July 9, 1991, both before and after petitioner's trial and sentencing. Judge Foxgrover sentenced criminal defendants to probation with a fine and/or restitution as a condition of probation and then converted fine or restitution checks to his own personal use on at least 50 separate occasions during this time period. Judge Foxgrover ultimately pleaded guilty to multiple counts of theft, official misconduct, forgery, obstruction of justice for attempting to cover up his criminal conduct and perjury for making false statements on official forms. All told, Judge Foxgrover pleaded guilty to 159 separate crimes.
Petitioner filed a post-conviction petition alleging that Judge Foxgrover's massive corruption violated petitioner's right to a fair trial guaranteed by the due process clauses of the United States and Illinois Constitutions. The circuit court granted the State's motion to dismiss the post-conviction petition without an evidentiary hearing, holding petitioner failed to establish any nexus between Judge Foxgrover's criminal conduct and petitioner's murder trial. Petitioner now appeals to this court.
At the motion to dismiss stage in post-conviction proceedings, all well-pleaded facts that are not positively rebutted by the trial record are to be taken as true. The inquiry into whether a post-conviction petition sufficiently alleges a substantial violation of petitioner's constitutional rights does not require the trial court to engage in any fact-finding or credibility determinations. People v. Coleman, 183 Ill. 2d 366, 385 (1998). As a result, there is little justification for giving deference to the trial court's conclusions as to the sufficiency of the allegations in the post-conviction petition. Coleman, 183 Ill. 2d at 388-89. The standard of review for a trial court's decision to dismiss post-conviction claims without conducting an evidentiary hearing, therefore, is de novo. Coleman, 183 Ill. 2d at 389.
I. Petitioner's Due Process Claim
Petitioner first argues that he does not have to establish a nexus between Judge Foxgrover's criminal conduct and his murder trial. According to petitioner, Judge Foxgrover's corruption was so pervasive that there is no basis for presuming that he was impartial at petitioner's trial. We disagree. In People v. Titone, 151 Ill. 2d 19 (1992), the petitioner filed a post-conviction petition alleging he was denied a fair trial before an impartial tribunal. Petitioner alleged that the judge at his murder trial, Cook County circuit court Judge Thomas J. Maloney agreed to accept a $10,000 bribe to acquit petitioner. Petitioner alleged that he was convicted either because his trial attorney failed to pay Judge Maloney the $10,000 bribe or because Judge Maloney accepted the bribe but convicted petitioner anyway in order to convince federal authorities investigating judicial corruption in Chicago that he did not accept a bribe. This court affirmed the dismissal of the post-conviction petition, holding that petitioner presented no evidence that Judge Maloney accepted or agreed to accept a bribe in petitioner's case. We also held that the fact that Judge Maloney was then under investigation in non-related cases arising out of his tenure as a Cook County circuit judge was not germane to the facts of that case. Titone, 151 Ill. 2d at 30. The mere fact that Judge Maloney was implicated in accepting bribes in other non-related cases, we concluded, could not serve to taint all other decisions with which Judge Maloney was involved. Titone, 151 Ill. 2d at 29. Instead, we held that a petitioner who alleges that his trial judge's corruption violated his right to a fair trial must establish (1) a "nexus" between the judge's corruption or criminal conduct in other cases and the judge's conduct at petitioner's trial; and (2) actual bias resulting from the judge's extra-judicial conduct. Titone, 151 Ill. 2d at 30-31.
Petitioner argues that we dispensed with the nexus requirement in People v. Hawkins, 181 Ill. 2d 41 (1998). Petitioner fundamentally misreads our opinion in Hawkins. Hawkins, like Titone, involved a post-conviction claim alleging Judge Maloney's corruption violated petitioners' right to a fair trial and required the reversal of the petitioners' murder convictions. Unlike this case, however, the petitioners presented evidence that Judge Maloney accepted a bribe at their murder trial and then returned the bribe when he suspected the FBI was investigating his conduct.
"A fair trial in a fair tribunal is a basic requirement of due process. Bracy v. Gramley, 520 U.S. 899, 905, 138 L. Ed. 2d 97, 104, 117 S. Ct. 1793, 1797 (1997); In re Murchison, 349 U.S. 133, 136, 99 L. Ed. 942, 946, 75 S. Ct. 623, 625 (1955). Fairness at trial requires not only the absence of actual bias but also the absence of the probability of bias. In re Murchison, 349 U.S. at 136, 99 L. Ed. at 946, 75 S. Ct. at 625. To this end, no person is permitted to judge cases in which he or she has an interest in the outcome. Bracy, 520 U.S. at 905, 138 L. Ed. 2d at 104, 117 S. Ct. at 1797; In re Murchison, 349 U.S. at 136, 99 L. Ed. at 946, 75 S. Ct. at 625. `Every procedure which would offer a possible temptation to the average man as a judge to forget the burden of proof required to convict the defendant, or which might lead him not to hold the balance nice, clear and true between the state and the accused denies the latter due process of law.' Tumey v. Ohio, 273 U.S. 510, 532, 71 L. Ed. ...