Bracy v. Schoming

• Decision Date: 18 April 2001
• Docket Number: 99-4320,Nos. 99-4318,99-4345,99-4319,s. 99-4318
• Citation: 248 F.3d 604
• Parties: (7th Cir. 2001) William Bracy and Roger Collins, Petitioners-Appellants, Cross-Appellees, v. James Schomig and Roger Cowan, Respondents-Appellees, Cross-Appellants
• Court: U.S. Court of Appeals — Seventh Circuit

Page 604

248 F.3d 604 (7th Cir. 2001)

William Bracy and Roger Collins, Petitioners-Appellants, Cross-Appellees, v. James Schomig and Roger Cowan, Respondents-Appellees, Cross-Appellants.

Nos. 99-4318, 99-4319, 99-4320, 99-4345.

In the United States Court of Appeals For the Seventh Circuit

Argued January 25, 2001

Decided April 18, 2001

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 Posner, Manion, and Rovner, Circuit Judges.

Posner, Circuit Judge.

Bracy and Collins were convicted in 1981 by a jury in an Illinois state court of three gangster- style murders committed the previous year, and they were sentenced to death upon the jury's recommendation, which under Illinois law bound the judge. After exhausting their state remedies, see People v. Collins, 478 N.E.2d 267 (Ill. 1985), 606 N.E.2d 1137 (Ill. 1992), they sought federal habeas corpus, which was denied; and we affirmed the denial in Bracy v. Gramley, 81 F.3d 684 (7th Cir. 1996). (The facts relating to the crimes, which are not germane to this appeal, are summarized in that opinion.) The Supreme Court reversed, 520 U.S. 899 (1997), holding that Bracy had made a sufficient showing under Rule 6(a) of the Rules Governing Section 2254 Cases in the United States District Courts to entitle him to conduct discovery concerning his claim that the judge who had presided at the petitioners' trial, Thomas Maloney, had been biased. The Court remanded Collins's case for reconsideration in light of its opinion in Bracy's case. Collins v. Welborn, 520 U.S. 1272 (1997) (per curiam). The cases were again consolidated in the district court, which after the discovery ordered by the Supreme Court issued an opinion denying the two petitioners a new trial on the issue of guilt but holding that they were entitled to a new sentencing hearing. United States ex rel. Collins v. Welborn, 79 F. Supp. 2d 898 (N.D. Ill. 1999). The parties have cross-appealed.

Judge Maloney was convicted in a federal court in 1993 of various offenses relating to his having taken bribes from criminal defendants during a period that included the year of the petitioners' trial. See United States v. Maloney, 71 F.3d 645 (7th Cir. 1995). He had not solicited or received bribes from these petitioners, but they argue that he habitually came down harder on defendants who had not bribed him than he would have done had he not been taking bribes. He did this, they argue, both to deflect any suspicion that might arise, in the cases in which he had accepted bribes and as a result acquitted or gone easy on the defendants, that he was "soft" on criminals (which might endanger his reelection), and to increase the size and frequency of the bribes offered him. The Supreme Court held that, "if it could be proved, such compensatory, camouflaging bias on Maloney's part in petitioner's own case would violate the Due Process Clause of the Fourteenth Amendment." 520 U.S. at 905 (emphasis added). In concluding that Bracy had presented enough evidence of such bias to entitle him to seek additional evidence through discovery, the Court focused on the contention that Bracy's trial counsel, Robert McDonnell, who had been appointed by Maloney to represent Bracy, had practiced law with Maloney before the latter had become a judge, and that McDonnell "might have been appointed with the understanding that he would not object to, or interfere with, a prompt trial, so that petitioner's case could be tried before, and camouflage the bribe negotiations in," a contemporaneous case before Maloney. Id. at 908. The Court pointed out that "this is, of course, only a theory at this point; it is not supported by any solid evidence of petitioner's trial lawyer's participation in any such plan." Id. But if substantiated, this theory that Bracy's "trial attorney, a former associate of Maloney's in a law practice that was familiar and comfortable with corruption, may have agreed to take this capital case to trial quickly so that petitioner's conviction would deflect any suspicion the rigged . . . cases might attract," id. at 909, would support "his claim that Maloney was actually biased in petitioner's own case." Id. (emphasis in original). The Court rejected the view of the judge who had dissented in our court that "petitioner was entitled to relief whether or not he could prove that Maloney's corruption had any impact on his trial. The latter conclusion, of course, would render irrelevant the discovery-related question presented in this case." Id. at 903 n. 4 (citation omitted). Regarding "the correctness of the various discretionary rulings cited by petitioner as evidence of Maloney's bias," the Court remarked that "many of these rulings have been twice upheld, and that petitioner's convictions and sentence have been twice affirmed, by the Illinois Supreme Court." Id. at 906 n. 6.

Twice the Supreme Court said that compensatory bias must, to provide a basis for relief for Bracy (and hence for Collins), be shown "in petitioner's own case." This means that even if Maloney engaged in compensatory bias in some cases, this would not be enough to justify a conclusion that the petitioners had been convicted and sentenced in violation of the due process clause; the petitioners would have to prove that Maloney had been biased ("actually biased," as the Court said) at their trial. A further straw in the wind is the Court's approving reference to our description of the theory of compensatory bias as "speculative": "The Court of Appeals, in its opinion, pointed out that this theory is quite speculative; after all, it might be equally likely that a judge who was 'on the take' in some criminal cases would be careful to at least appear to favor all criminal defendants, so as to avoid apparently wild and unexplainable swings in decisions and judicial philosophy." Id. at 906, citing 81 F.3d at 689-90.

Sometimes the temptation to bias is so great that proof of bias is not required. This is true when the judge has a substantial pecuniary stake in the outcome of the case or when he is bribed by one of the parties. See, e.g., Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 825 (1986); Del Vecchio v. Illinois Dept. of Corrections, 31 F.3d 1363, 1370-80 (7th Cir. 1994) (en banc); Cartalino v. Washington, 122 F.3d 8, 11 (7th Cir. 1997). Given the difficulty of peering into a judge's mind, in the absence of confession a high probability of bias is the most that can ever be proved and sometimes the objective circumstances alone are enough to establish the requisite probability. But it is apparent from the passages that we have quoted from the Bracy opinion that the Supreme Court does not regard the temptation to engage in compensatory bias as falling into the per se category, where proof of the temptation is enough to entitle a defendant to a new trial because the likelihood that the judge succumbed (perhaps quite unconsciously) is great. If it did fall into the per se category, as our dissenting colleague had argued it should, there would have been no occasion to conduct discovery, since the existence of the temptation was conceded and the only question was whether Maloney had yielded to it, either generally or in Bracy and Collins's case. The Court obviously thought it important to inquire whether Judge Maloney had succumbed. Later we decided a case, Cartalino, in which the requisite proof was supplied: the bribery scheme included convicting Cartalino. There is no evidence that Maloney's bribery scheme involved convicting Bracy and Collins. It is not irrelevant to note that if the possibility of compensatory bias is alone enough to establish actual bias, all decisions by a judge who accepts bribes would be invalidated--in the case of Judge Maloney, literally thousands.

The evidence establishing the existence of compensatory bias in a particular case need not be case specific. Had Maloney, who was deposed as part of the discovery conducted on remand, testified that he had practiced compensatory bias in all the cases in which he had not been bribed, and his testimony had been believed, it would be irrelevant that there was no evidence about the motive for his rulings in the trial of these petitioners, or even that he had no recollection of that trial. All that would have to be established, all that had to be established in the remand proceedings, was a factual basis for inferring that Maloney probably did harbor an actual bias against the defendant. That could not be inferred from the fact that Maloney took bribes, or even, as we have noted, from the fact, if it was a fact, that he practiced compensatory bias, for he may not have done so in every case. We do not know whether he practiced it in any case; and he would have been unlikely to practice it in every case. If he thought that a defendant was certain to be convicted and receive a severe sentence, he would have no incentive to lean in favor of the prosecution and by doing so jeopardize the conviction or sentence by making it more vulnerable to reversal on appeal.

But we must consider more closely the findings of the district judge on remand and the evidence on which they are based. To begin with, the judge found that McDonnell had never practiced law with Maloney and had pulled no punches in his defense of Bracy. This finding is not clearly erroneous, and so it binds us and wipes out the theory of bias that was the focus of the Supreme Court's discussion of the need for discovery.

The district judge noted that during his allocution before being sentenced, Maloney had spoken of the convictions and sentences of Bracy and Collins as "a credit to his record as a judge and evidence that he was not corrupt." 79 F. Supp. 2d at 907. This led up to the judge's last and critical finding in the part of his opinion captioned "findings of fact," which was that (id. at 908) during the same time petitioners'...