Bracy v. Gramley, s. 94-3801

Decision Date26 June 1996
Docket NumberNos. 94-3801,94-3807,s. 94-3801
PartiesWilliam BRACY, Petitioner-Appellant, v. Richard B. GRAMLEY, Respondent-Appellee. Roger COLLINS, Petitioner-Appellant, v. George C. WELBORN, Respondent-Appellee.
CourtU.S. Court of Appeals — Seventh Circuit

Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. Nos. 93 C 5328, 93 C 5282--William T. Hart, Judge.

Martin Carlson, Chicago, IL, Gilbert H. Levy (argued), Seattle, WA, for Bracy.

Rita M. Novak, Office of the Atty. Gen., Kevin Sweeney (argued), Office of the State's Atty. of Cook County, Criminal Appeals Div., Chicago, IL, for Gramley.

Stephen E. Eberhardt (argued), Marshall J. Hartman, Chicago, IL, Robert H. Farley, Jr., Naperville, IL, for Collins.

James E. Ryan, Office of the Atty. Gen., Steven J. Zick, Office of the Atty. Gen., Criminal Appeals Div., Chicago, IL, Kevin Sweeney (argued), Office of the State's Atty. of Cook County, Criminal Appeals Div., Chicago, IL, for Welborn.

Before POSNER, Chief Judge, and CUMMINGS and ROVNER, Circuit Judges.

POSNER, Chief Judge.

William Bracy and Roger Collins were convicted in an Illinois state court in 1981 of three murders committed the previous year. They were sentenced to death and after exhausting their state remedies (see People v. Collins, 106 Ill.2d 237, 87 Ill.Dec. 910, 478 N.E.2d 267 (1985); 153 Ill.2d 130, 180 Ill.Dec. 60, 606 N.E.2d 1137 (1992)) sought habeas corpus in federal district court. Judge Hart denied them relief, United States ex rel. Collins v. Welborn, 868 F.Supp. 950 (N.D.Ill.1994), and they have appealed, arguing that the state denied them due process of law both at their trial and in the sentencing hearing.

The victims had been taken, bound, from an apartment in a building on the south side of Chicago and had been driven to a viaduct and there shot to death with pistols and a shotgun. The main prosecution witness was Morris Nellum, an accomplice who testified for the government in exchange for being charged only with concealing a felony and promised that the state would recommend a sentence of only three years. (In fact he received only two and a half years--and of probation, not prison.) Nellum testified that Collins had summoned him to the apartment, where he had watched as the victims were led out of the apartment and into a waiting automobile by Bracy, Collins, and a third man, Hooper. (Hooper was tried separately, convicted, and sentenced to death. See People v. Hooper, 133 Ill.2d 469, 142 Ill.Dec. 93, 552 N.E.2d 684 (1989), affirming the conviction but vacating the death sentence. On remand, Hooper was again sentenced to death, and this time the Supreme Court of Illinois affirmed. 199 (Ill. Jan. 25, 1996).)

Collins told Nellum to drive Collins's car, which was parked near the apartment building, to the viaduct. Collins and Hooper then got into the car that contained the three victims and drove away, followed by Bracy in another car. Nellum waited a few minutes and then drove to the viaduct as well. As he approached it, he heard shots. He stopped the car. Collins jumped in and they sped off. Later the two drove to Lake Michigan and Collins threw two pistols into the lake. Nellum, after he was arrested, told the police where the guns had been dumped, and the police found them there. Bullets found in the bodies of the dead men were of the type fired by these guns, although the guns had so deteriorated as a result of their prolonged immersion in the lake that no positive ballistics identification was possible.

Nellum's testimony was corroborated not only by the finding of the guns but also by testimony from a resident of the apartment building who saw the group leaving on the fatal night. She identified Collins, Nellum, and Hooper in court as resembling three of the men she had seen. She testified that one of the three had been wearing a wide-brimmed hat--and Nellum testified that Collins had indeed been wearing such a hat that night. Further corroboration of Nellum's testimony came from another resident, who testified to having seen Bracy and Collins in the building that night, and from a witness who testified that Bracy had borrowed a pistol from her before the murders and that afterward, when they were in a bar and she asked for the pistol back, he had told her that he had murdered some people with it. One of the pistols found in the lake on the basis of Nellum's tip turned out to be the pistol that she had lent Bracy. This witness also testified that in the same bar she had seen a woman give Bracy a sawed-off shotgun that Bracy had then handed to an employee of the bar, apparently for safekeeping. Bracy and Collins testified on their own behalf, denying any participation in the murders, and presented a parade of alibi witnesses of dubious credibility.

The evidence of guilt presented at the trial was compelling, and while there is a question, as we shall see, about the veracity of some of Nellum's testimony, even if that question were resolved in the defendants' favor we would have no basis for doubting the guilt of either Bracy or Collins. Hooper was tried separately because his confession implicated them and the confession is further evidence, though of course not evidence presented to the jury in our case, that they really did, along with Hooper, commit the murders. Because this evidence was inadmissible it cannot be used to show that the errors of which Bracy and Collins complain are unlikely to have affected the verdict. Cf. Sullivan v. Louisiana, 508 U.S. 275, 278-79, 113 S.Ct. 2078, 2081, 124 L.Ed.2d 182 (1993); United States v. Ross, 77 F.3d 1525 (7th Cir. 1996). But the evidence that was admissible shows that they were guilty and this is important because, with a few exceptions, a person convicted in a state court may not obtain an order for a new trial from a federal court on the basis of constitutional errors committed at the trial unless the errors resulted in actual prejudice, or, equivalently, unless they substantially influenced the verdict, Brecht v. Abrahamson, 507 U.S. 619, 637-38, 113 S.Ct. 1710, 1722, 123 L.Ed.2d 353 (1993), or, in other words, were likely to have made the difference between conviction and acquittal.

The only error that the petitioners argue requires a new trial regardless of whether it was prejudicial is that the judge who presided at their trial was later convicted of having accepted bribes from criminal defendants in several other cases (including murder cases) around the time when Bracy and Collins were tried. United States v. Maloney, 71 F.3d 645, 650-52 (7th Cir.1995). There is no suggestion that Bracy and Collins bribed or offered to bribe him. The argument rather is that Judge Maloney came down hard on criminal defendants in cases in which he was not bribed, to avoid suspicion that he was on the take, to cancel any bad impression that his acquittals might make on the voters--maybe even to make defendants desperate to bribe him, fearing he would punish them with adverse rulings if they did not. There is no evidence, but only conjecture, that Maloney actually did lean over backwards in favor of the prosecution in this or any other case in which he was not bribed; did, that is, rule against the defense only because he was taking bribes in other cases. Collins argues that evidence is unnecessary, and Bracy that if it is necessary their request for discovery should have been granted.

A judge could be biased and yet the bias not affect the outcome of the case. But judicial bias is one of those "structural defects in the constitution of the trial mechanism," as distinct from mere "trial errors," that automatically entitle a petitioner for habeas corpus to a new trial. Brecht v. Abrahamson, supra, 507 U.S. at 629, 113 S.Ct. at 1717; see Sullivan v. Louisiana, supra, 508 U.S. at 278-79, 113 S.Ct. at 2081; Tumey v. Ohio, 273 U.S. 510, 535, 47 S.Ct. 437, 445, 71 L.Ed. 749 (1927); Tyson v. Trigg, 50 F.3d 436, 442 (7th Cir.1995). What is bias? Defined broadly enough, it is a synonym for predisposition, and no one supposes that judges are blank slates. There are prosecution-minded judges, and defense-minded judges, and both sorts have predispositions--biases that place an added burden on one side or the other of the cases that come before them. Yet no one supposes that the existence of such biases justifies reversal in cases where no harmful errors are committed. The category of judicial bias is ordinarily limited to those predispositions, real or strongly presumed, that arise from some connection pecuniary or otherwise between the judge and one or more of the participants in the litigation. Whether the present case even fits that mold may be doubted, but, in any event, for bias to be an automatic ground for the reversal of a criminal conviction the defendant must show either the actuality, rather than just the appearance, of judicial bias, "or a possible temptation so severe that we might presume an actual, substantial incentive to be biased." Del Vecchio v. Illinois Dept. of Corrections, 31 F.3d 1363, 1380 (7th Cir.1994) (en banc); see Branion v. Gramly, 855 F.2d 1256, 1268 (7th Cir.1988); Margoles v. Johns, 660 F.2d 291, 296-97 (7th Cir.1981) (per curiam). In rejecting reversal on the basis of a mere appearance of partiality or bias Del Vecchio relied in part on a presumption, obviously inapplicable here, that judicial officers perform their duties faithfully. 31 F.3d at 1372-73. But that was not the core of the decision. The fundamental reason that an appearance of impropriety is not alone enough to require a new trial is that it provides only a weak basis for supposing the original trial an unreliable test of the issues presented for decision in it. The fact that Maloney had an incentive to favor the prosecution in cases in which he was not bribed does not mean...

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