Bracy v. Schomig

• Decision Date: 29 March 2002
• Docket Number: No. 99-4318.,No. 99-4320.,No. 99-4319.,No. 99-4345.,99-4318.,99-4319.,99-4320.,99-4345.
• Court: U.S. Court of Appeals — Seventh Circuit
• Parties: William BRACY and Roger Collins, Petitioners-Appellants, Cross-Appellees, v. James SCHOMIG and Roger Cowan, Respondents-Appellees, Cross-Appellants.

286 F.3d 406

William BRACY and Roger Collins, Petitioners-Appellants, Cross-Appellees, v. James SCHOMIG and Roger Cowan, Respondents-Appellees, Cross-Appellants.

No. 99-4318.

No. 99-4319.

No. 99-4320.

No. 99-4345.

United States Court of Appeals, Seventh Circuit.

Argued September 21, 2001.

Decided March 29, 2002.

John L. Stainthorp, People's Law Office, Chicago, IL, Gilbert H. Levy (argued), Seattle, WA, for petitioner-appellee, William Bracy.

William L. Browers (argued), Office of Attorney General, Chicago, IL, for respondents-appellants, James M. Schomig, and Jonathan R. Walls.

Robert H. Farley, Jr., Naperville, IL, Stephen E. Eberhardt (argued), Crestwood, IL, for petitioner-appellant, Roger Collins.

Before FLAUM, Chief Judge, and POSNER, COFFEY, EASTERBROOK, RIPPLE, MANION, KANNE, ROVNER, DIANE P. WOOD, EVANS, and WILLIAMS, Circuit Judges.

TERENCE T. EVANS, Circuit Judge.

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 a federal 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 Bracy¹ 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, 87 Ill.Dec. 910, 478 N.E.2d 267 (1985). They then sought, and were denied, postconviction relief in the circuit court of Cook County, Illinois. The Illinois Supreme Court again affirmed, People v. Collins, 153 Ill.2d 130, 180 Ill.Dec. 60, 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, 138 L.Ed.2d 97 (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, 138 L.Ed.2d 209 (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, 47 S.Ct. 1, 71 L.Ed. 131 (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, 47 S.Ct. 437, 71 L.Ed. 749 (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 cas...