Argued January 14, 2013
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 10 C 1809 — Joan B. Gottschall, Judge.
Before Easterbrook, Chief Judge, Hamilton, Circuit Judge, and Miller, District Judge. [†]
Easterbrook, Chief Judge.
After a trial in 1981, Murray Hooper was convicted of three murders and sentenced to death. The Supreme Court of Illinois affirmed the conviction but ordered a new penalty trial. People v. Hooper, 133 Ill.2d 469 (1989). It ended in another capital sentence, which was affirmed. People v. Hooper, 172 Ill.2d 64 (1996). Collateral review in state court left the convictions in place, but the Governor of Illinois commuted the sentence to life imprisonment. Federal collateral review began in 2010. The district court's order, 854 F.Supp.2d 546 (N.D. Ill. 2012), denying Hooper's petition under 28 U.S.C. §2254, rejected all three of his contentions. The unusual caption of these proceedings— in which the lead respondent is the Director of the Arizona Department of Corrections—stems from the fact that Hooper is on death row in that state, following his convictions there for multiple murders. See State v. Hooper, 145 Ariz. 548 (1985); Hooper v. Schriro, 2008 U.S. Dist. Lexis 84760 (D. Ariz. Oct. 10, 2008) (denying Hooper's petition for relief under §2254). Because relief remains possible on the Arizona convictions and sentence, however, Hooper's challenge to his Illinois convictions is justiciable.
Details about Hooper's crimes do not matter to the federal proceedings. Procedural details do matter. Hooper was indicted with William Bracy and Roger Collins. Bracy and Collins were tried and convicted together; Hooper was tried separately. The convictions of Bracy and Collins reached the Supreme Court of the United States because Judge Thomas J. Maloney of the Circuit Court of Cook County presided. Maloney was convicted of taking bribes, see United States v. Maloney, 71 F.3d 645 (7th Cir. 1990), and one of the prosecutions on which the bribery conviction rests came between the Bracy–Collins trial and Hooper's trial. Bracy and Collins contended that Judge Maloney engaged in "compensatory bias"—that he ensured the conviction of defendants who did not pay bribes, both to make people more willing to pay his price and to make his record look acceptable to the voters when up for retention. The Supreme Court held that compensatory bias is a valid legal theory and remanded for exploration of that subject. Bracy v. Gramley, 520 U.S. 899 (1997). Five years later, this circuit held that compensatory bias had not been established with respect to Bracy's and Collins's convictions. Bracy v. Schomig, 286 F.3d 406 (7th Cir. 2002) (en banc).
Hooper argues that he has shown compensatory bias even though Bracy and Collins failed to do so. A state judge rejected that argument in 2007. The state's intermediate appellate court affirmed, and the Supreme Court of Illinois denied a petition for review. The federal district judge held that the state decision on the compensatory-bias subject is not marred by a legal error or any clearly erroneous factual finding. 854 F.Supp.2d at 563–67. Given our holding en banc in Bracy, we too conclude that the state judiciary's decision on this subject cannot be upset on collateral review. We also agree with the district court's conclusion, id. at 574–76, that Hooper has not provided an adequate reason to reject the state courts' denial of his contention that his confession should have been excluded from evidence. Hooper's third argument, however, is substantially stronger.
Five years after Hooper's trial, the Supreme Court held in Batson v. Kentucky, 476 U.S. 79 (1986), that racial discrimination in jury selection could be shown not just by statistical data revealing a systemic problem, see Swain v. Alabama, 380 U.S. 202 (1965), but by the misuse of peremptory challenges in a single case. Batson applies to cases that were on direct appeal when it was released. Griffith v. Kentucky, 479 U.S. 314 (1987). Because Hooper's appeal was pending when Batson came down, the Supreme Court of Illinois ordered Judge Maloney to hold a hearing to determine whether the prosecutor had exercised peremptory challenges on racial grounds. In 1987 Judge Maloney found not; the Supreme Court of Illinois concluded in 1989 that his findings did not constitute clear error, 133 Ill.2d at 502–15; and 23 years later the federal district court concluded (854 F.Supp.2d at 567– 74) that the state's decision is not "contrary to, or … an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" (28 U.S.C. §2254(d)(1))—a standard established by legislation in 1996 and applicable here because the federal collateral attack began in 2010. See Lindh v. Murphy, 521 U.S. 320 (1997).
A few numbers show why there is a Batson problem. The venire drawn for Hooper's trial had 63 members. Of these, seven were black. Two of the seven were removed on challenges for cause. The prosecutor exercised peremptory challenges against the remaining five. The prosecutor used 11 peremptory challenges, removing 100% of the black members of the venire who had not already been removed for cause and 11% of the white or Asian members. Surprisingly, however, Judge Maloney concluded that the defense lacked even a prima facie demonstration of racial discrimination. Here is his analysis of the Batson issue:
From the Court's examination of all the available facts and circumstances relevant to the selection of the jury in this case, the Court does not detect or find evidence of a mind to discriminate in the actions or statements of the State. Nor does the Court find a pattern of strikes that would give rise to an inference of discriminatory intent.
The Court does find that the reasons articulated by the State during jury selection, for having exercised its challenges refute any inferences of a discriminatory intent. Neutral, valid and logical reasons were stated as the predicates upon which the challenges were based. Those explanations were not required to rise to the level of a challenge for cause.
The Court rules that the totality of the evidence does not raise an inference that the State used its peremptory challenges to exclude blacks from the jury on the basis of race and a prima facie case of purposeful discrimination is not established.
See 133 Ill.2d at 504. There are the findings that the Supreme Court of Illinois held neither legally mistaken nor clearly erroneous. We think that, in reaching this conclusion, the Supreme Court of Illinois made at least four errors that were unreasonable applications of the Supreme Court's decisions, if not outright contradictions of them.
Hooper's principal argument to the state judiciary, and his principal argument now, is that the numbers speak for themselves. The prosecutor removed every black member of the venire, producing an all-white jury. The Supreme Court of Illinois held, however, that a judge is forbidden to infer a prima facie case of discrimination from a racially disproportionate use of challenges. "Allowing the trial court to find a prima facie case based solely on the fact that the State has used its peremptory challenges to exclude all the black jurors from the venire would negate consideration of all other relevant circumstances … and would be inconsistent with Batson's mandate that all relevant circumstances be considered." 133 Ill.2d at 506. This conflicts with Batson, where the Court remarked that "total or seriously disproportionate exclusion of Negroes from jury venires … is itself ...