Tyson v. Trigg

• Citation: 50 F.3d 436
• Decision Date: 13 April 1995
• Docket Number: No. 94-3359,94-3359
• Parties: Michael G. TYSON, Petitioner-Appellant, v. Clarence TRIGG, Superintendent of the Indiana Youth Center; and Attorney General of the State of Indiana, Respondents-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 436

50 F.3d 436

Michael G. TYSON, Petitioner-Appellant, v. Clarence TRIGG, Superintendent of the Indiana Youth Center;

and Attorney General of the State of Indiana,

Respondents-Appellees.

No. 94-3359.

United States Court of Appeals,

Seventh Circuit.

Argued Jan. 20, 1995.

Decided March 20, 1995.

Rehearing and Suggestion for Rehearing In Banc Denied April

13, 1995.

Nathan Z. Dershowitz, Amy Adelson, Victoria B. Eiger, Dershowitz & Eiger, New York City, Alan M. Dershowitz (argued), Cambridge, MA, James H. Voyles, Symmes, Voyles, Zann, Paul & Hogan, Indianapolis, IN, for petitioner-appellant.

Arend J. Abel (argued), Office of the Atty. Gen., Indianapolis, IN, for Clarence Trigg.

Arend J. Abel, Matthew R. Gutwein, Office of the Atty. Gen., Indianapolis, IN, for Atty. Gen. of the State of Indiana.

Before POSNER, Chief Judge, FLAUM, Circuit Judge, and McDADE, District Judge. ^*

POSNER, Chief Judge.

Michael Tyson was convicted in 1992 in an Indiana state court, after a jury trial that lasted fifteen days, of the rape of W___. He was sentenced to ten years in prison, of which four were suspended. The Indiana court of appeals affirmed his conviction and sentence, Tyson v. State, 619 N.E.2d 276 (Ind.App.1993), and both the Supreme Court of Indiana and the U.S. Supreme Court turned down his requests for a further appeal. He then filed a petition in federal district court for a writ of habeas corpus, and he appeals to us from the denial of the petition.

Tyson had one appeal from his conviction. Federal habeas corpus does not entitle him to another. A federal court may intervene in the state criminal process, nullifying a defendant's conviction and sentence and forcing the state to try him anew (or else simply let him go), only if the state criminal proceeding was vitiated by an infringement of one or more of a limited subset of the defendant's federal rights. If required to substitute our judgment for that of the Indiana court of appeals, we might come to a different conclusion from that court. But we are not authorized to conceive of our job in that way. We are not to offer a further tier of appellate review. We are to determine only whether Tyson was deprived of any of his federal rights that can be enforced in a federal habeas corpus proceeding.

He claims to have been deprived of three such rights. The first is a right to be tried by a judge selected to preside by an impartial process. Tyson claims that the prosecutor picked the judge who tried him (more precisely, who presided at the trial, for it was a jury trial rather than a bench trial)--picked a judge who had been a sex-crimes prosecutor in the same office--and that to allow the branch of government that prosecutes to determine which judge shall preside over which criminal cases is an elementary denial of due process of law.

It is true that the prosecutor picked the judge in Tyson's case, Judge Gifford, and that she is a former prosecutor of sex crimes. It is also true that the right to an impartial judge is a right of whose deprivation a state prisoner may complain in a federal habeas corpus proceeding. Tumey v. Ohio, 273 U.S. 510, 523, 47 S.Ct. 437, 441, 71 L.Ed. 749 (1927); In re Murchison, 349 U.S. 133, 75 S.Ct. 623, 99 L.Ed. 942 (1955); Del Vecchio v. Illinois Dept. of Corrections, 31 F.3d 1363, 1379 (7th Cir.1994) (en banc); Fero v. Kerby, 39 F.3d 1462, 1478-80 (10th Cir.1994). And it is true, or at least we may assume it to be true for purposes of this appeal, that if Congress were to pass a law which provided that the U.S. Attorney in each district shall designate the federal district judge to preside in criminal cases, or even that the Environmental Protection Agency shall designate the federal district judge to preside in civil cases under the Clean Air Act, the law would raise profound issues under the due process clause. The question is whether it follows from all this that Tyson is entitled to a new trial.

A prosecutor in Indiana who wants to charge someone with a crime either can ask a grand jury to return an indictment or can file an information without bothering with a grand jury. (An information is much like a complaint in an ordinary civil case, only more detailed, Ind.Code Sec. 35-34-1-2(a); State v. King, 502 N.E.2d 1366 (Ind.App.1987).) When Tyson's prosecution began, there were six judges in the criminal division of the Marion County (Indianapolis) superior court. Each, in addition to his or her other duties, presided over a separate grand jury and over the trial of any cases arising from the indictments returned by that grand jury. If the prosecutor's office decided to proceed by way of indictment rather than information, it chose one of the grand juries to ask to return the indictment--and by choosing the grand jury it automatically chose the judge to preside at trial. The Marion County prosecutor's office decided to proceed by indictment in Tyson's case. It submitted its request for the indictment to Judge Gifford's grand jury, and by doing so selected her to preside at trial.

This procedure (since abandoned, as we are about to see) was apparently limited to Marion County, but that is Indiana's most populous. We have not been told how long it had been in effect when Tyson's case arose, but apparently it was not a recent innovation or a secret one. Yet no other criminal defendant had ever thought to challenge its legality. The Indiana court of appeals, while rejecting Tyson's argument that the procedure had deprived him of his rights, criticized it as "totally inappropriate" because it made the criminal division of the Marion County superior court lack "the appearance of impartiality that is required to maintain the confidence of the public and the accused in the system." 619 N.E.2d at 300. The procedure was abandoned after this criticism, and the prosecutor no longer has any say in criminal trial assignments.

Although displeased with some of Judge Gifford's rulings at trial, Tyson does not claim that she was prejudiced against him, either because he was being tried for a sex crime or for any other reason. Even the dissenting judge in the Indiana court of appeals agreed that "Judge Gifford acted with complete and unswerving judicial integrity and impartiality." Id. at 301 n. 34. Nor does Tyson argue that the maintenance of a system of judicial selection deficient in "the appearance of impartiality" is a denial of due process. Such an argument is foreclosed in this circuit by Del Vecchio v. Illinois Dept. of Corrections, supra, 31 F.3d at 1370-79; see also id. at 1389-92 (concurring opinion); Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 826, 106 S.Ct. 1580, 1588, 89 L.Ed.2d 823 (1986); United States v. Marion, 404 U.S. 307, 325-26, 92 S.Ct. 455, 465-66, 30 L.Ed.2d 468 (1971). Del Vecchio is a recent capital case in which the issue was squarely presented, extensively discussed, and resolved against the defendant by the full court. Tyson's argument, rather, is that to allow the prosecutor to pick the judge so greatly stacks the deck against the defendant as to make the trial unfair--so unfair as to deny due process of law.

Trial judges have considerable discretionary power (we shall be considering an example from Tyson's trial in the next part of the opinion), and the exercise of discretion is shaped by a judge's values and intuitions, which in turn are shaped by the judge's background and experiences. Among a group of six American judges, even of the same court in the same county, there is likely to be considerable, and relevant, diversity in background and experience. Former prosecutors may have a different bent from former defense lawyers, former lawyers for tort plaintiffs a different bent from former lawyers for insurance companies. One must not exaggerate the impact of a judge's career and demographic characteristics on the judge's decisions. Most judges are conscious of the sources of unconscious bias and try with considerable success to overcome them. The presumption that judges are unbiased, Del Vecchio v. Illinois Dept. of Corrections, supra, 31 F.3d at 1372, is more than a pious hope. Yet if a litigant can choose which of six judges shall preside at the trial, that party may be able to obtain a subtle advantage over the other by selecting a judge more likely to resolve close questions in that party's favor, even if the trial is to be a jury trial so that the judge will not make the ultimate decision.

Is the advantage thus conferred so egregious as to deny due process of law? Even to reach that question we must decide whether Tyson is asking for a new rule of constitutional law, for if he is we cannot give it to him in a habeas corpus proceeding. Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989); Saffle v. Parks, 494 U.S. 484, 110 S.Ct. 1257, 108 L.Ed.2d 415 (1990). He says "no," that the rule he is contending for is as old as Montesquieu, who argued that liberty requires the separation of the judicial power from the executive and the legislative powers. Tyson claims that the only reason there are no cases condemning the practice of the prosecutor's picking the judge (he cites two cases, State v. Simpson, 551 So.2d 1303 (La.1989) (per curiam); McDonald v. Goldstein 91 Misc. 863, 83 N.Y.S.2d 620, 626 (S.Ct.), aff'd, 273 A.D. 649, 79 N.Y.S.2d 690 (1948), but they are readily distinguishable from the present one) is that the practice is so patently unconstitutional that few jurisdictions have had the audacity to institute them.

We may assume for purposes of this decision that the absence of a precedent is not always fatal, though we can find no case that says so--though indeed the cases say that relief can be obtained in federal habeas corpus only on the basis of a ground dictated by precedent. Teague v. Lane, supra, 489 U.S. at 301, 109 S.Ct. at 1070; Caspari v. Bohlen, --- U.S. ----, ----, ----, 114 S.Ct. 948, 953, 955, 127 L.Ed.2d 236 (1994). A rule might be so unexceptionable that it...