Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. Nos. 93 C 5282, 93 C 5328--William T. Hart, Judge.
Before Flaum, Chief Judge, and Posner, Coffey, Easterbrook, Ripple, Manion,
Kanne, Rovner, Diane P. Wood, Evans, and Williams, Circuit Judges.
The opinion of the court was delivered by: Evans, Circuit Judge.
Argued September 21, 2001
A case combining two men scheduled to die at the hands of the State with the corrupt judge who sentenced them creates a toxic mix. And so it is with this case, which we resolve today while sitting en banc.
Thomas J. Maloney betrayed the position of high public trust he held as an elected circuit judge in Cook County, Illinois. The perversion of his oath forced Maloney to exchange his judge's robe for the garb of a prisoner at afederal correctional institution. Although Maloney can no longer disgrace the office he once held, this case demonstrates that the ashes of his corruption still smolder. We certainly hope that few, if any, embers will remain after today.
There are two parts to today's decision, and each commands a solid majority of the court. The lineup of judges, however, is different on each part. To help the reader, we note that the part of the judgment which rejects the claim that our two petitioners are entitled to a full new trial is joined by Chief Judge Flaum and Circuit Judges Posner, Coffey, Easterbrook, Manion, Kanne, and Evans. The part of the judgment holding that the defendants are entitled to receive a new hearing on whether the death penalty should be imposed--this time before an honest judge--is agreed to by Chief Judge Flaum and Circuit Judges Coffey, Ripple, Kanne, Rovner, Diane P. Wood, Evans, and Williams.
This case has a 20-year history, the first 13 in the Illinois state courts. We will not relate that extensive history here. What follows is only a brief summary.
William Bracy*fn1 and Roger Collins were convicted, after a jury trial, on multiple charges of murder, armed robbery, and aggravated kidnaping. Following a further, two-stage hearing before the same jury, both men were sentenced to death for their murder convictions, and to concurrent 60-year prison sentences on their other convictions. Bracy and Collins appealed, and the Illinois Supreme Court affirmed their convictions and sentences. People v. Collins, 106 Ill.2d 237, 478 N.E.2d 267 (1985). They then sought, and were denied, post-conviction relief in the circuit court of Cook County, Illinois. The Illinois Supreme Court again affirmed, People v. Collins, 153 Ill.2d 130, 606 N.E.2d 1137 (1992).
Bracy and Collins then moved to federal court by filing separate habeas corpus petitions in the United States District Court for the Northern District of Illinois. Their petitions were consolidated, and in a 1994 decision the district court denied relief. United States ex rel. Collins v. Welborn, 868 F. Supp. 950 (N.D. Ill. 1994). The petitioners appealed and, in a 2-1 panel decision, we affirmed the district court. Bracy v. Gramley, 81 F.3d 684 (7th Cir. 1996). The United States Supreme Court reversed our decision on the question of whether Bracy was entitled to discovery, finding that he had shown good cause for moving forward with his claim for relief. Bracy v. Gramley, 520 U.S. 899, 117 S. Ct. 1793 (1997). The Court then returned Collins' case to us for reconsideration in light of the Bracy decision. Collins v. Welborn, 520 U.S. 1272, 117 S. Ct. 2450 (1997). We sent the cases to the district court, which eventually denied habeas relief as to each petitioner's conviction but granted relief as to their sentencing. United States ex rel. Collins v. Welborn, 79 F. Supp. 2d 898 (N.D. Ill. 1999). We affirmed the district court as to the convictions but reversed on the sentencing issue, again in a 2-1 panel decision. Bracy v. Schomig, 248 F.3d 604 (7th Cir. 2001). Subsequently, that opinion was vacated when a majority of our judges voted to rehear the case en banc. Which brings us to today.
The events giving rise to this case occurred some 21 years ago when a drug deal turned deadly. Three men, expecting to buy drugs, were instead robbed and taken from a Chicago apartment to a viaduct at Roosevelt Road and Clark Street, where they were shot to death. Bracy, Collins, and Murray Hooper, who was tried separately, were charged with various crimes growing out of the episode.
The chief witness against Bracy and Collins was Morris Nellum, who admittedly took part in the crimes. Nellum testified that Collins asked him to drive Collins' Cadillac to Roosevelt Road and Clark Street because Collins wanted to be picked up there. Nellum then saw Collins, Bracy, and Hooper place three men in the back seat of an Oldsmobile; Collins drove away in that car. Bracy drove his own car and Nellum drove the Cadillac. When Nellum arrived at the viaduct, he heard shots. Immediately, he saw Bracy running to his automobile; he was carrying a sawed-off shotgun. Collins got into the car with Nellum. As they sped from the scene, Collins said, "That damn Hooper. I told him to wait until--I wanted to use the shotgun because they can't trace the shotgun, but he used the gun instead." Bracy gave Nellum $125 and told him to "Just be cool." Nellum then drove, again with Collins, to Lake Michigan, where Collins threw two handguns into the lake--a .38-caliber Charter Arms revolver and a .357 revolver. The Charter Arms revolver was identified by Christina Nowell, who testified that Bracy previously had the opportunity to take the revolver from her. She also said that Bracy later told her "he had murdered some people with [her gun] and threw it into the Chicago River." A gun, later discovered in the lake, was Nowell's gun. At trial, in addition to Nellum, the State called a number of witnesses who provided enough pieces of the puzzle to convince the jury to convict Bracy and Collins and, in a separate proceeding, sentence them to death.
The court proceedings involving Bracy and Collins played out in a relatively routine manner until 1993, when Judge Maloney, who presided over their state court trial, was himself convicted of serious charges--he was taking bribes from defendants in criminal cases during the time period of the Bracy-Collins trial. United States v. Maloney, 71 F.3d 645 (7th Cir. 1995). Bracy and Collins did not bribe Maloney, but in the present petition they argue that their convictions and sentences violated due process because Maloney habitually came down harder on defendants who had not bribed him than he would have done had he not been on the take. He did this, they said, to deflect suspicion that he was soft on crime, a suspicion that might arise in cases where he unexpectedly acquitted or went easy on convicted defendants. Being hard on defendants who did not bribe him, Bracy and Collins contended, also inspired other defendants to offer bribes. In short, Bracy and Collins asserted that Maloney engaged in what has been dubbed "compensatory bias."
Exactly what Bracy and Collins must prove to prevail on this claim has twice divided a panel of our court and has at least peripherally engaged the attention of the Supreme Court. It continues to divide us, although there are principles on which we do not disagree.
The first area of agreement is that Maloney is not entitled to the usual presumption that ordinarily informs judicial bias cases--a presumption that public officials have "properly discharged their official duties." United States v. Chemical Foundation, Inc., 272 U.S. 1 (1926). We can indulge in no such presumption in this case. The Supreme Court said that "unfortunately, the presumption has been soundly rebutted: Maloney was shown to be thoroughly steeped in corruption through his public trial and conviction." Bracy, 117 S. Ct. at 1799. Secondly, we agree that the fact that Maloney was so exceedingly corrupt does not support a per se finding that every case over which he presided was infected.
Our opinions diverge over exactly what the Supreme Court meant when it said that Bracy and Collins must show "that Maloney was actually biased in petitioner's own case." The phrase encompasses two concepts. One is "actual bias," apparently in contrast to the appearance of bias, which ordinarily supports a judicial bias claim. The second makes clear that the petitioners must connect the complained-of bias to their specific case. The former is somewhat of a surprising limitation on their claim; the latter less so. Also, we seem not to agree on what the petitioners' evidentiary burden is and how they can meet it.
First, actual bias. In Tumey v. Ohio, 273 U.S. 510 (1927), a prohibition-era case, the mayor of a village was empowered to try persons charged with unlawfully possessing intoxicating liquor. Under a village ordinance, the mayor could levy a fine against violators out of which the mayor was granted "his costs in each case, in addition to his regular salary, as compensation for hearing such cases." And therein lay the problem: the mayor made extra money for his service as a judge if he convicted and fined those charged with breaking the law. For 6 months in 1923 the mayor received $696.35 from this process, a paltry sum, even adjusted for inflation, compared to Maloney's take. The Supreme Court concluded that the mayor was disqualified from hearing cases both because of his "direct pecuniary interest in the outcome, and because of his official motive to convict and to graduate the fine to help the financial needs of the village." Id. at 533.
Revisiting the Ohio statutes in Ward v. Village of Monroeville, 409 U.S. 57 (1972), the Supreme Court considered the case of a mayor who was authorized to try municipal and traffic violations, but who was not personally entitled to pocket a share of any fines imposed. The Court found that a direct financial stake in the outcome "did not define the limits of the principle." The defendant was entitled to a neutral judge, which this mayor was not because money collected by the "mayor's court" benefitted the mayor when he wore his executive hat in controlling the village's finances.
Even the absence of an indirect financial basis for a claim of bias was not enough to save the conviction in In Re Murchison, 349 U.S. 133 (1955), in which the Court was concerned with the appearance of bias. The Court concluded that the same judge who acted, under Michigan law, as a "one-man grand jury" could not preside over a contempt proceeding against a witness:
Fairness of course requires an absence of actual bias in the trial of cases. But our system of law has always endeavored to prevent even the probability of unfairness. To this end no man can be a judge in his own case and no man is permitted to try cases where he has an interest in the outcome. That interest cannot be defined with precision. Circumstances and relationship must be considered. This Court has said, however, that "every procedure which would offer a possible temptation to the average man as a judge . . . not to hold the balance nice, clear and true between the State and the accused, denies the latter due process of law." [citing Tumey]. Such a stringent rule may sometimes bar trial by judges who have no actual bias and who would do their very best to weigh the scales of justice equally between contending parties. But to perform its high function in the best way "justice must satisfy the appearance of justice." Offutt v. United States, 348 U.S. 11, 14. Id. at 136.
In Aetna Life Insurance Co. v. Lavoie, 475 U.S. 813 (1986), the Court again based its finding of a due process violation on the appearance of bias. A justice of the Alabama Supreme Court sat on a case which established that punitive damages were available on a claim against an insurer, a case which was similar to one which the justice, himself as a plaintiff, had pending in an Alabama trial court. The Court was concerned with the temptation that the justice might not "hold the balance nice, clear and true." These cases tell us that ordinarily "actual bias" is not required, the appearance of bias is sufficient to disqualify a judge. But because of the language in the Supreme Court case in Bracy, we will focus today on actual bias.
The second concept--that the bias must be found "in petitioner's own case"--is not surprising. In each of the cases we just discussed, the bias--or appearance of bias--appears in the very case the court is considering. That is not an unusual requirement. A habeas petitioner cannot show a due process violation in his own case because, for instance, the judge refused to suppress evidence in another case--or even that the particular judge hardly ever suppresses evidence at the request of the defense.
But the nature and extent of Maloney's dereliction of duty casts this case in an unusual light and makes it hard to put Maloney in any normal framework. Not only is he not entitled to any presumption of fairness, but he is entitled to our derision. Not only did he find himself with the opportunity to show bias and unfairness, he was a criminal who, by his very presence on the bench, undermined the foundation of our system of justice. He was not a mayor presiding over an ordinance violation case and setting a fine, he was a racketeer sending men to the death chamber in the name of the State. It is hard to analyze what he did by looking at cases involving municipal fines or insurance claims. It is equally hard to understand why his judgment receives any level of protection.
Our only explanation is that the unique nature of this case may be why we need to look for actual bias. Maybe it is because the appearance of bias--or at least of criminality--is so obvious. It may be that we must be careful to tie our analysis to actual bias in the present case because Maloney was so obviously not concerned with justice in other cases. Whatever the reason, Bracy and Collins have the heavy burden of showing actual bias.
The issue, then, is the means by which they can meet their evidentiary burden. Clearly, they can use evidence extrinsic to the trial record in their case. After all, the appeal to the Supreme Court involved their right to take discovery. But that discovery, as Judge Rovner pointed out in her dissent in our panel decision after remand, produced no "smoking gun" or, as she also put it, no "hard proof" of Maloney's motives. 248 F.3d at 609. That, according to our panel decision, is pretty much the end of the story. To a certain extent, we disagree.
We see no reason why Bracy and Collins can show bias only by finding a smoking gun, which in this case apparently would be Maloney's confession that he stacked the deck against them to take the heat off himself. Direct evidence of that sort is simply not available. But evidence short of a confession by Maloney is, as we will see, present to support their claim. From that evidence, reasonable in ferences can be drawn.
Furthermore, this is a death penalty case. Like all others sentenced to death, Bracy and Collins are entitled to our painstaking review of their convictions and death sentences because, as the Supreme Court has often recognized, death is different. See Gardner v. Florida, 430 U.S. 349 (1977), and cases cited therein. We review the factual findings of the district court for clear error. Legal issues are reviewed de novo. Bocian v. Godinez, 101 F.3d 465 (7th Cir. 1996). Having concluded that review, we see nothing that moves us to disturb the meticulous opinion of Judge William T. Hart in the district court (1) that it is more likely than not that Maloney engaged in compensatory bias in the death penalty phase of this case, or (2) that the evidence does not support such a finding in the guilt phase of the trial.
We have said that Maloney was a criminal, a racketeer, but these words do not convey just how serious his misbehavior was. First, we know he was convicted of racketeering, extortion, and obstruction of justice in gang-related murder cases. Maloney, 71 F.3d 645. His corruption made it possible for him to spend $400,000 more than he earned over 6 years ending in 1984. He was convicted of taking a bribe to acquit Lenny Chow, a hit man for a crime organization, who with two other men was charged in the murder of William Chin. Also with a bribe in his pocket, Maloney acquitted Owen Jones of a felony murder charge of beating a man to death during a burglary while convicting him instead on only a lesser charge of voluntary manslaughter.
Other cases show that Maloney was capable of camouflaging his actions in some cases by compensating for it in others. He accepted a bribe of $10,000 to acquit two El Rukn gang members of a double murder, but he returned the money when he suspected (correctly) that the FBI was monitoring him. The Illinois Supreme Court granted these men a new trial because Maloney was motivated to convict them in order to deflect suspicion, a direct example of compensatory bias. The court said:
That Maloney subsequently returned the money did not render his interest in the outcome any less acute. As defendants suggest, he wanted to insure that he did not lose his judicial post and salary as a result of a criminal indictment, and therefore was motivated to return a verdict that would not spark the suspicions of authorities. People v. Hawkins & Fields, 690 N.E.2d 999, 1004 (Ill. 1998).
Similarly, a defendant named Dino Titone gave Maloney a $10,000 bribe, but Maloney convicted him anyway. Judge Earl E. Strayhorn, the Illinois judge presiding over Titone's post-trial motion, vacated the conviction because Maloney had a motive to convict Titone to deflect suspicion from himself. See People v. Titone, No. 83 C 127, post conviction transcript (Cir. Ct. Cook County, July 25, 1997), R239. Another example of Maloney's ability to cover his tracks came from the experience of attorney William Swano, a Maloney-briber in previous cases. This time, Swano represented a man named James Davis in a case which Swano evaluated as weak. In other words, Swano did not think a bribe was necessary in order to win an acquittal for Davis so no bribe was offered. Swano was wrong; Davis was convicted. At Maloney's trial, Swano testified that he construed the experience as a lesson that "to practice in front of Judge Maloney . . . we had to pay."
At Maloney's sentencing, the United States Government submitted a version of his offense that is a blueprint for compensatory bias:
THOMAS MALONEY's corruption began at the time he was a criminal defense attorney paying off judges and court personnel to fix cases--including a notorious murder case--and continued through the time he was a judge working as a mafia factotum in the Cook County Circuit Court system and taking all manner of bribes on very serious criminal cases. Thomas Maloney's reputation as a strict prosecution-oriented judge was no mistake. By casting this image, Maloney sought to deflect suspicion from his criminal activity, while simultaneously giving select desperate defendants who knew the right people an incentive to pay him off. Thus, by using his position as a felony trial court judge to extract bribes from defendants who face long periods of imprisonment or execution, THOMAS MALONEY far surpassed the category of corrupt jurist to chart a new territory of defilement.
. . . [W]hen he got his turn on the bench, THOMAS MALONEY imposed a sinister system which had the dual effect of concealing and promoting his corruption. THOMAS MALONEY the former champion of the defendant became one of the most ruthless judges on the bench. Showing defendants little mercy had the effect of diverting any conceivable suspicion from MALONEY while at the same time giving defendants a strong motivation to cough up big bribery dollars.
We think this statement, the official position of the Government of the United States, accurately sums up Maloney's curriculum vitae.
All this provides a framework for the petitioners' claim that, on occasion, Maloney engaged in compensatory bias. The task for Bracy and Collins is to connect his bias with their case and they must do it without being able to get inside Maloney's head. Their need to rely on circumstantial evidence arises because Maloney was not going to provide the link through some sort of confession. During discovery in this case he not only failed to admit that he took any untoward actions in this case: As Judge Hart put it, he "vehemently and arrogantly denied all of the bribery charges clearly established by the jury findings and the evidence presented at his criminal trial." 79 F. Supp. 2d at 907.
At his federal sentencing Maloney pointedly remembered Bracy and Collins. As he was insisting, in the face of all evidence, that he had been an honest judge with a distinguished career, he cited as a credit to his record both the case of Hawkins and Fields, where we know he engaged in compensatory bias, and the trial of Bracy and Collins as well. What can we infer from this? One could say nothing at all; any inference that Maloney was motivated by the desire to deflect suspicion from himself is simply conjecture. Yet we think, in the context of this case, it was certainly appropriate for the district judge to consider this reference an indication that compensatory bias might very well have been at work in the Bracy-Collins case.
And there is more. Consider Maloney's appointment of Robert McDonnell as Bracy's attorney. In 1981 Bracy's original attorney was given permission to withdraw because Bracy ran out of money to pay him. Maloney appointed McDonnell to represent Bracy, and a short time later McDonnell announced that he was ready for trial.
Bracy alleged that McDonnell was appointed because he had been a partner of Maloney's, presumably a law partner, and because Maloney was looking to McDonnell to help ensure that Bracy would be convicted. Discovery in this case showed, however, that the two were never law partners. But it also showed that their connection was more troubling. Maloney and McDonnell knew each other and associated in some manner with Chicago organized crime families. When Maloney was a defense attorney in Chicago, his reputation was that of a "fixer." In 1977 Maloney represented his friend Harry Aleman, who was a "hit man for the mob." ...