Bracy, William v. Schomig, James M. ( 2001 )


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  • In the
    United States Court of Appeals
    For the Seventh Circuit
    Nos. 99-4318, 99-4319, 99-4320, 99-4345
    William Bracy and Roger Collins,
    Petitioners-Appellants, Cross-Appellees,
    v.
    James Schomig and Roger Cowan,
    Respondents-Appellees, Cross-Appellants.
    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.
    Argued January 25, 2001--Decided April 18,
    2001
    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’ case
    was pending, other cases were pending in
    which Maloney took bribes, particularly
    the close in time Chow and Rosario cases.
    Before and after this time, Maloney was
    engaged in a pattern of receiving money.
    Based on the evidence in the record, it
    is a possible and reasonable inference in
    this case that Thomas Maloney was
    motivated, at least in part, to maintain
    a prosecution-oriented attitude and to
    make pro-prosecution rulings by a desire
    to deflect suspicion from cases in which
    he accepted bribes. Other documented
    instances of Maloney so acting to deflect
    suspicion from his corrupt conduct are
    reported in the Hawkins and Titone cases.
    This finding has no factual support; it
    is merely conjecture. It was natural for
    Maloney, at his sentencing for accepting
    bribes from criminal defendants,
    including defendants in murder cases, to
    point to a case before him in which the
    murderers had been convicted and
    sentenced to death, though the jury, not
    he, had convicted them and had made a
    recommendation for death that bound him.
    It does not follow that when he presided
    at the defendants’ trial he was thinking
    of how their convictions and sentences
    might stave off future accusations of
    bribe taking, or even how they might
    dispel suspicions of it if he was even
    aware at that time, early in his bribe-
    taking career, that there were any
    suspicions--probably he was not, or he
    would not have continued taking bribes
    for nine more years. The two cases to
    which the district judge referred as
    examples of Maloney’s "acting to deflect
    suspicion from his corrupt conduct" are
    cases in which Maloney accepted bribes,
    but in one he returned the bribe because
    he realized that he was under
    investigation and in the other he
    convicted the defendant anyway. Neither
    case had anything to do with compensatory
    bias.
    The district judge seems to have based
    his conclusion about Maloney’s motivation
    largely on the "Government’s Official
    Version of the Offense" submitted in
    Maloney’s criminal trial. This document,
    which the parties refer to as the
    sentencing recommendation or sentencing
    memorandum, is also the cornerstone of
    the petitioners’ appeal. In it the
    Justice Department accused Maloney (whom
    it called "degenerate" and "a mafia
    factotum") of practicing compensatory
    bias. The document consists, however, of
    57 single-spaced pages, and the
    allegation of compensatory bias appears
    on just one of them. It is colorful
    ("THOMAS MALONEY far surpassed the category
    of corrupt jurist to chart a new
    territory of defilement"), vivid, even
    plausible. But no substantiation or
    elaboration is offered. No cases in which
    Maloney may have engaged in compensatory
    bias are cited; no evidence, direct or
    circumstantial, admissible or
    inadmissible, that he ever engaged in the
    practice is offered. The allegation is
    sheer conjecture. The Justice Department
    understandably was pressing for a very
    long sentence (more than 20 years), and
    it pulled out all the stops.
    The district judge may have had
    misgivings about the theory of
    compensatory bias that he had just
    embraced, because in the section of his
    opinion captioned "conclusions of law" he
    made a finding (a finding of fact, not a
    conclusion of law) that "the evidence
    does not establish that an interest in
    covering up wrongdoing or motivating
    larger bribe payments pervaded every
    action taken by Maloney as a judge.
    Maloney’s bribetaking has not been shown
    to have been so pervasive a part of his
    judicial practices that it can be assumed
    he was always, or even usually, motivated
    by his pecuniary and/or penal interests
    when exhibiting his prosecution-oriented
    tendencies." 
    Id. at 909
     (emphasis added).
    The judge then examined Maloney’s rulings
    at the trial of Bracy and Collins to see
    whether this might have been one of those
    unusual cases and found no rulings at the
    guilt phase of the trial that were
    suggestive of bias. He concluded that the
    convictions were untainted. The
    conclusion is correct, and compelled by
    the evidence, which was even weaker than
    the judge thought. For all that appears,
    Maloney was a prosecution-minded judge
    for reasons unrelated to his taking
    bribes. That he would accept payment to
    acquit criminals does not imply any
    affection for criminal defendants or
    their lawyers such that he must have been
    acting against character when he ruled in
    favor of the prosecution in cases in
    which he was not bribed. That is a
    possibility, but no more than a
    possibility. Maloney’s conduct was
    appalling, his character depraved, but
    the bridge to the trial of Bracy and
    Collins is missing. He was certainly
    capable of dreaming up and acting on
    compensatory bias, but there is no
    evidence that he did.
    But examining Maloney’s rulings at the
    sentencing phase of the petitioners’
    trial, the district judge found the taint
    of compensatory bias. The only ruling (or
    pair of rulings) he mentioned was
    Maloney’s refusal to sever Collins’s sen
    tencing hearing from Bracy’s and conduct
    it first in order to give Bracy’s lawyer
    more time to prepare for his client’s
    hearing. The ruling is said to have
    harmed Collins because it meant that the
    jury would hear evidence about additional
    murders that Bracy had committed in
    Arizona, murders in which Collins had not
    been implicated. He had not raised the
    issue of severance in his state-court
    appeal, and as a result it was treated as
    forfeited in the federal habeas corpus
    proceeding. It is not surprising that he
    didn’t raise the issue, because it is
    very difficult to see how he would have
    been harmed, rather than helped, by
    evidence that Bracy was a worse murderer
    than he. And so it is difficult to see
    how the ruling could be thought evidence
    of bias. More important, the ruling on
    the motion to sever was not new evidence
    obtained through discovery after the
    remand by the Supreme Court. That in
    itself would not disqualify the ruling as
    a basis for finding compensatory bias;
    but in fact the discovery brought nothing
    to light that made the inference of
    compensatory bias any more compelling
    than it had been before the discovery was
    conducted. Much of the discovery
    consisted of a wild goose chase after
    McDonnell’s relationship to Maloney. The
    chase did uncover ugly evidence of
    criminality and mob ties of both
    McDonnell and Maloney, but nothing that
    bore on the issue of compensatory bias--
    except to dispel the suspicion that
    Maloney had appointed McDonnell to make
    sure that Bracy would be convicted, or
    that McDonnell had tried to throw the
    case in order to curry favor with
    Maloney.
    The petitioners note the district
    judge’s failure to mention that their
    trial was a high-profile case sandwiched
    in between two cases in which Maloney had
    accepted bribes and that Maloney may have
    believed that if he gave the prosecutor
    what he wanted in this high-profile case,
    a case of particular importance to the
    Cook County state’s attorney’s office,
    the prosecutor would be less likely to
    act on any suspicion that he might have
    had of Maloney’s bribetaking. These
    points do not nudge the possibility that
    Maloney was biased in the petitioners’
    case to a probability. After lengthy
    discovery the theory that Maloney
    practiced compensatory bias, either
    generally or in this case, remains
    hopelessly speculative. The petitioners
    have failed to show that they were denied
    due process of law either at trial or in
    sentencing. To reverse their convictions
    or sentences would merely compound
    Maloney’s wrongdoing.
    The denial of relief with respect to the
    petitioners’ convictions is affirmed. The
    grant of such relief with respect to
    their sentences is reversed with
    instructions to enter judgment for the
    respondents.
    ROVNER, Circuit Judge, dissenting. Five
    years ago, I argued that Bracy and
    Collins ought to be given the chance to
    conduct discovery in an effort to marshal
    evidence that Judge Maloney’s serial
    bribe-taking had an impact on their
    trial. "If their discovery proves
    fruitless," I said, "we can at least take
    comfort in the knowledge that we have
    given them every opportunity to prove
    that Maloney’s corruption deprived them
    of a fair trial." Bracy v. Gramley, 
    81 F.3d 684
    , 699 (7th Cir. 1996) (dissent),
    rev’d in part, 
    520 U.S. 899
    , 
    117 S. Ct. 1793
     (1997). The petitioners have now had
    their chance at discovery. If proof that
    a corrupt judge is biased in cases where
    no bribe is tendered were easy to come
    by, the petitioners would no doubt have
    found it. But smoking guns are rare, and
    I agree with my colleagues that discovery
    has yielded no hard proof that Maloney
    engaged in camouflaging bias in their
    particular case. What discovery has
    produced, however, should make us feel
    less, rather than more, confident that
    the petitioners’ convictions and
    sentences were untainted by Maloney’s
    bribe-taking.
    We know, of course, as we did before,
    that Maloney was engaged in serial bribe-
    taking within the time frame surrounding
    the petitioners’ convictions. The jury’s
    finding against Maloney reveals that he
    accepted bribes to fix at least four
    cases: People v. Lenny Chow, No. 81 C
    4020, People v. Ronald Roby, No. 82 I
    50244, People v. Owen Jones, No. 81 C
    9832, and People v. Earl Hawkins &
    Nathson Fields, No. 85 C 6555. The
    prosecution’s case against Maloney
    posited that he accepted bribes in at
    least two other cases--People v. Frank
    Calistro, No. 82 C 8355, and People v.
    Wilfred Rosario, No. 79 C 2469--although
    the jury did not find the alleged bribe
    in Calistro to have been proved beyond a
    reasonable doubt and it was not asked to
    render a finding as to the alleged bribe
    in Rosario. Hearsay evidence in the
    government’s investigative file on
    Maloney suggests that he may also have
    accepted a bribe to acquit the defendant
    of murder in People v. Rocco LaMantia,
    No. 79 C 2623, in 1981. R. 162 Ex. 23 at
    6, Ex. 24 at 1-2; see Collins v. Welborn,
    
    79 F. Supp. 2d 898
    , 904 para. 19 (N.D.
    Ill. 1999).
    The record now before the court also
    makes it both possible and reasonable to
    infer that Maloney accepted bribes in
    many other cases. An FBI analysis of
    Maloney’s finances reveals that his
    expenditures in the years 1978 to
    1984exceeded his known, legitimate income
    in those years by some $400,000. R. 162
    Exs. 53, 54; 
    79 F. Supp. 2d at
    907 para.
    40. Assuming that the typical bribe was
    in the $5,000 to $10,000 range, then
    Maloney may have fixed at least 40 cases,
    and perhaps as many as 80 during those
    years./1
    Five of the identified acts of bribery
    took place between 1981 and 1983, and one
    in 1986. (Bracy and Collins, of course,
    were arraigned in March of 1981, and they
    were tried, convicted, and sentenced to
    death in July 1981.) Two of the known
    bribes were tendered to Maloney in
    proceedings that took place shortly
    before and shortly after Bracy and
    Collins were tried in July 1981: after
    accepting a bribe of $2,500 in People v.
    Rosario, Maloney suppressed the
    defendant’s confession on January 23,
    1981, and dismissed the case on June 17,
    1981; and in mid-August, 1981, after
    accepting an unknown share in a bribe of
    $100,000, Maloney acquitted all three
    defendants in People v. Chow, 
    79 F. Supp. 2d at
    903-04 para.para. 12, 16. In short,
    we know that Maloney’s bribe-taking was
    neither isolated nor sporadic, and that
    Bracy and Collins were tried in the midst
    of it.
    The record also supplies some
    confirmation that Maloney engaged in acts
    designed to further and/or camouflage his
    bribe-taking. First, now part of the
    record in this case is the transcript of
    Maloney’s trial (which previously was
    under seal and unavailable to the
    petitioners). That transcript includes
    the testimony of William Swano, recounted
    in my previous dissent. See 
    81 F.3d at 697
    . In short, Swano, who had bribed
    Maloney in other cases, had a case before
    Maloney--People v. James Davis--that he
    believed to be a sure winner for his
    client. On Swano’s advice, his client
    waived his right to a jury and the case
    was tried to Maloney, whom Swano did not
    think it necessary to bribe in view of
    the merits of the case. Maloney
    nonetheless convicted Swano’s client,
    which Swano construed as a lesson that
    "to practice in front of Judge Maloney .
    . . we had to pay." R. 162 Ex. 20, United
    States v. Maloney & McGee, No. 91 CR 477,
    Trial Tr. at 2530. Without more, one
    might say that this was nothing more than
    Swano’s belief, and that it is entirely
    possible that Maloney convicted Davis
    wholly on the merits of the prosecution’s
    case. But Swano subsequently met with
    bagman Robert McGee to discuss a bribe in
    Hawkins & Fields. McGee told Swano that
    Maloney had okayed the discussion,
    acknowledging that he had "screwed" Swano
    in the Davis case. R. 241, United States
    v. Maloney & McGee, No. 91 CR 477, Trial.
    Tr. at 2568. That acknowledgment
    constitutes confirmation that Maloney did
    engage in camouflaging bias.
    Second, Maloney initially accepted a
    $10,000 bribe in People v. Hawkins &
    Fields, only to return the money and
    convict the defendants when he perceived
    (correctly) that the FBI had its eye on
    him. The Illinois Supreme Court
    subsequently concluded that Hawkins and
    Fields were entitled to a new trial,
    because Maloney had been motivated
    toconvict them in order to deflect
    suspicion. People v. Hawkins, 
    690 N.E.2d 999
    , 1004 (Ill. 1998).
    Third, in People v. Dino Titone, No. 83
    C 127, Maloney accepted a $10,000 bribe
    to acquit Titone, but convicted him
    anyway, again to deflect suspicion. That
    compensatory motive persuaded the post-
    conviction judge to vacate the
    defendant’s conviction and grant him a
    new trial. R. 239, People v. Titone, No.
    83 C 127, Post-conviction Tr. at 10-13
    (Cir. Ct. Cook County July 25, 1997).
    Fourth, we have the version of the
    offense that the government submitted to
    the court for purposes of Maloney’s
    sentencing, which wholly embraces and
    advocates the notion that Maloney engaged
    in compensatory bias.
    . . . THOMAS MALONEY’S corruption began
    at the time he was a criminal defense
    attorney paying off judges and court
    personnel to fix cases--including a
    notorious murder case--and continued
    through the time he was a judge working
    as a mafia factotum in the Cook County
    Circuit Court system and taking all
    manners of bribes on very serious
    criminal cases. Thomas Maloney’s
    reputation as a strict prosecution-
    oriented judge was not a mistake. By
    casting this image, Maloney sought to
    deflect suspicion from his criminal
    activity, while simultaneously giving
    select desperate defendants who knew the
    right people an incentive to pay him off.
    Thus, by using his position as a felony
    trial court judge to extract bribes from
    defendants who face[d] long periods of
    imprisonment or execution, THOMAS MALONEY
    far surpassed the category of corrupt
    jurist to chart a new territory of
    defilement.
    *   *   *
    . . . [W]hen he got his turn on the
    bench, THOMAS MALONEY imposed a sinister
    system which had the dual effect of
    concealing and promoting his corruption.
    THOMAS MALONEY the former champion of the
    defendant became one of the most ruthless
    judges on the bench. Showing defendants
    little mercy had the effect of diverting
    any conceivable suspicion from MALONEY
    while at the same time giving defendants
    a strong motivation to cough up big
    bribery dollars.
    R. 162 Ex. 1, United States v. Maloney &
    McGee, No. 91 CR 477, Government’s
    Official Version of the Offense at 54-55
    (N.D. Ill. filed May 23, 1994). As my
    colleagues suggest, the government
    certainly had an incentive in submitting
    this memorandum to portray Maloney in the
    worst possible light and so to persuade
    Judge Leinenweber, who sentenced Maloney,
    to mete out the harshest possible
    penalty. Yet, the government obviously
    had no interest in helping Bracy,
    Collins, or any other defendant convicted
    by Maloney to obtain relief from their
    convictions. It strikes me as doubtful
    that any prosecutor--federal or state--
    would admit that a judge deliberately
    favored the prosecution for nefarious
    reasons if the facts did not warrant that
    acknowledgment. Having investigated and
    tried Maloney, his prosecutors were in
    the best position to assess his modus
    operandi as a corrupt jurist and its
    ramifications for defendants who did not
    bribe him. Their considered judgment, as
    officers of the court, that Maloney did
    engage in purposeful and systematic
    compensatory bias deserves much more
    weight than my colleagues (ensconced as
    we all are within the sheltered environs
    of this court) are willing to give it.
    We know one more fact. In 1994, Maloney
    stood before Judge Leinenweber defiantly
    proclaiming his innocence. By this time,
    of course, the proof of Maloney’s bribe-
    taking had already convinced a jury
    beyond a reasonable doubt that he was a
    criminal. Nonetheless, as he waited for
    Judge Leinenweber to pass sentence,
    Maloney continued to insist that he had
    been an honest judge with a distinguished
    career. Among the cases he cited as a
    credit to his career, and as proof that
    he was not corrupt--in addition to
    Hawkins & Fields, where we know that
    Maloney engaged in compensatory bias--
    were the convictions of Bracy and
    Collins. R. 162 Ex. 13, United States v.
    Maloney & McGee, No. 91 CR 477,
    Sentencing Tr. at 606-07 (N.D. Ill. July
    21, 1994).
    In sum, the record supplies us with
    confirmation that Maloney was engaged in
    serial bribe-taking that almost certainly
    was more extensive than the particular
    bribes underlying his conviction reveal;
    that he accepted bribes in cases
    immediately before and after Bracy and
    Collins were tried; that he was cognizant
    of the public scrutiny that his bribe-
    taking could engender and did not
    hesitate to take compensatory action--
    including the return of a bribe, and the
    conviction of an individual who had
    bribed him--in order to protect himself;
    and that the very government that built
    the case against Maloney believed that he
    cultivated a reputation as a fierce, law-
    and-order judge both to deflect suspicion
    from his bribe-taking and to encourage
    defendants to bribe him.
    What we do not have, and what my
    colleagues insist is a prerequisite to
    relief, is hard proof that camouflaging
    bias was at work in this case. The theory
    that Bracy floated before the Supreme
    Court--that Robert McDonnell was
    Maloney’s former law partner, and that
    Maloney agreed to appoint him as Bracy’s
    counsel in exchange for a promise that he
    would accept a quick trial, so that the
    trial of Bracy and Collins might serve to
    camouflage the corrupt disposition of the
    Chow murder prosecution, see 
    520 U.S. at 907-08
    , 
    117 S. Ct. at
    1798-99--was not
    borne out by the facts./2 Maloney, who
    continues to deny that he ever accepted a
    bribe, of course will not admit that he
    ever engaged in camouflaging bias in any
    case, let alone this particular one. And
    although there is proof that Maloney may
    have taken compensatory action in other
    cases to conceal and further his bribe-
    taking franchise, there is no proof that
    he invarably engaged in camouflaging bias
    in cases where no bribe was tendered.
    Proof along these lines could come from
    only two sources--Maloney, and those who
    associated with him in his bribe-taking.
    Maloney is the only individual who would
    necessarily know when he took
    compensatory actions to hide his bribe-
    taking, but the questioning of him
    quickly reached a dead end. Maloney
    continues to "vehemently and arrogantly
    den[y] all of the bribery charges clearly
    established by the jury findings and the
    evidence presented at his criminal
    trial." 
    79 F. Supp. 2d at
    907 para. 41.
    Those who bribed Maloney or who
    facilitated his bribe-taking--people like
    Swano, who learned firsthand the need to
    bribe Maloney in order to obtain an
    acquittal, and Lucius Robinson, who
    served as both bailiff and bagman for
    Maloney--might have a glimpse into
    Maloney’s mind. But in the finest
    tradition of mobsters, swindlers, and
    certain campaign fund-raisers, Swano
    declined the opportunity to further
    incriminate himself, R. 213 Ex. 14,
    Deposition of William Swano, and Robinson
    had nothing more insightful to say than
    Maloney was known as "a hard fucking
    judge" who "more or less leaned toward
    [prosecutors and police officers] in
    cases," R. 213 Ex. 10(b), Deposition of
    Lucius Robinson, at 47, 48./3
    But the lack of such proof by no means
    rules out the possibility that Maloney
    did engage in camouflaging bias on a
    regular basis, and possibly in this case.
    Bribery itself is quite difficult to
    expose. The fact that an acquittal (or
    some other dispositive ruling for the
    defendant) has been paid for is rarely
    evident from the record. Individual
    judges often take widely disparate views
    of the facts and even the law, and
    legitimately so. Given the breadth of a
    judge’s discretion, and his nearly
    unfettered power to render credibility
    assessments, one can almost never say
    with certainty that a surprising ruling
    in favor of the defendant is necessarily
    the product of corruption. To show that
    money has changed hands often requires
    years of work using the full array of
    investigative resources (electronic
    surveillance, undercover agents, and
    cooperating witnesses). Proof that a
    corrupt judge engaged in camouflaging
    bias will be at least as difficult to
    obtain, if not more so, and persons in
    the position of Bracy and Collins must
    search for that proof without the
    resources and might of the government. If
    a judge decides to hide his bribe-taking
    by favoring the prosecution in a
    particular case, there will be little to
    mark that decision. No money will change
    hands, the prosecutor will not be given a
    whispered assurance that "things have
    been taken care of," and there will be no
    one in the courtroom (save the judge)
    patiently awaiting a foreordained result.
    Absent a lopsided record, the only hard
    proof of compensatory bias can issue from
    the judge’s own mouth. Where, as here,
    the judge does not even acknowledge his
    own bribe-taking, and associates who may
    have been privy to his thinking plead
    either ignorance or the Fifth Amendment,
    then the proof is wholly inaccessible.
    Yet, proof of actual bias has never been
    treated as the sine qua non of a due
    process claim. The Supreme Court has not
    hesitated to vacate a conviction where it
    is shown that the judge who presided at
    trial had an interest in the outcome,
    even if there is no proof that this
    interest manifested in actual bias
    against either party. Thus, in Tumey v.
    Ohio, 
    273 U.S. 510
    , 
    47 S. Ct. 437
     (1927),
    the Court invalidated a statutory scheme
    that authorized town mayors to try
    persons accused of liquor offenses and
    provided for reimbursement of the mayors’
    trial costs from the fines imposed on
    those they convicted of such offenses.
    Because the scheme in this way gave the
    mayor-judge a pecuniary interest, albeit
    a relatively modest one, in the outcome
    of the trial, the court reasoned, it was
    inconsistent with due process.
    There are doubtless mayors who would not
    allow such a consideration as $12 costs
    in each case to affect their judgment in
    it, but the requirement of due process of
    law in judicial procedure is not
    satisfied by the argument that men of the
    highest honor and the greatest self-
    sacrifice could carry it on without
    danger of prejudice. Every procedure
    which would offer a possible temptation
    to the average man as a judge to forget
    the burden of proof required to convict
    the defendant, or which might lead him
    not to hold the balance nice, clear, and
    true between the state and the accused
    denies the latter due process of law.
    
    273 U.S. at 532
    , 
    47 S. Ct. at 444
    (emphasis supplied). Similarly, the Court
    in In re Murchison, 
    349 U.S. 133
    , 
    75 S. Ct. 623
     (1955), concluded that due
    process would not permit the same judge
    who acted as a one-person grand jury
    under Michigan law to try contempt
    charges arising out of the grand jury
    proceedings. "Fairness of course
    requires an absence of actual bias in the
    trial of cases," the Court observed. 
    Id. at 136
    , 
    75 S. Ct. at 625
    . "But our system
    of law has always endeavored to prevent
    even the probability of unfairness."
    
    Ibid.
     (emphasis supplied). And in Aetna
    Life Ins. Co. v. Lavoie, 
    475 U.S. 813
    ,
    
    106 S. Ct. 1580
     (1986), the Court found
    that a due process violation occurred
    where a member of the Alabama Supreme
    Court had cast the deciding vote and
    written the decision affirming a
    $3.5million punitive damage award against
    an insurance company for its bad-faith
    refusal to pay a valid claim at the same
    time that the justice had at least one
    similar lawsuit of his own pending
    against an insurer in a lower Alabama
    court. That pending action, the Court
    reasoned, gave the justice a pecuniary
    interest in the outcome of the decision
    that he authored. 
    Id. at 824-25
    , 
    106 S. Ct. at 1586-87
    . The Court did not find it
    necessary to decide whether the justice
    was actually biased by virtue of his own
    litigation; the possibility that he might
    have been so was sufficient to establish
    a due process violation. 
    Id. at 825
    , 
    106 S. Ct. at 1587
    .
    The Due Process Clause "may sometimes bar
    trial by judges who have no actual bias
    and who would do their very best to weigh
    the scales of justice equally between
    contending parties. But to perform its
    high function in the best way, ’justice
    must satisfy the appearance of justice.’"
    Ibid., quoting Murchison, 
    349 U.S. at 136
    , 
    75 S. Ct. at 625
     (additional
    citation omitted).
    The circumstances here likewise argue in
    favor of treating the judge’s temptation
    to lean in one party’s favor as
    disqualifying in and of itself. Common
    sense tells us that a corrupt judge who
    wishes to retain his office will do
    whatever he can to hide his bribe-taking.
    An obvious way to do that is to make it
    a practice to favor the State in cases
    where no bribe is tendered./4 There is
    an inherent difficulty in the attempt to
    peer into a judge’s mind to ascertain if,
    when, and how the judge engaged in
    compensatory actions to deflect suspicion
    away from his wrongdoing. But the
    possible temptation to cloak his bribe-
    taking in this way was present
    nonetheless. And the presence of that
    temptation in turn undermines confidence
    in the fairness of the trials over which
    the corrupt judge presided.
    My colleagues suggest that the Supreme
    Court has already rejected the notion
    that a corrupt judge’s temptation to
    engage in compensatory bias is sufficient
    to place the case within the Tumey-
    Murchison-Aetna framework, but instead
    has conditioned relief on proof of actual
    bias. Ante at 4-5. It is true that the
    Court remanded this case so that the
    petitioners would have the chance to
    conduct discovery aimed at showing actual
    bias. It is also true that the Court
    acknowledged, in a footnote, that
    discovery would be unnecessary if proof
    of actual bias were not required. 
    520 U.S. at
    905 n.5, 
    117 S. Ct. at
    1797 n.5.
    But I think it wrong to suggest that the
    Court, by implication, has already
    decided that proof of actual bias must be
    shown on the part of a corrupt judge. The
    Court granted certiorari to decide one
    and only one question--whether the
    petitioners were entitled to discovery.
    Bracy v. Gramley, 
    519 U.S. 1074
    , 
    117 S. Ct. 726
     (1997). Had the discovery yielded
    proof that Judge Maloney was actually
    biased against Bracy and Collins, then
    there would be no need to consider
    whether his bribe-taking might entitle
    them to relief even in the absence of
    that proof. It may be that when
    confronted with the question of whether
    actual bias must be shown, the Supreme
    Court will decide the issue as my
    colleagues have predicted. But we have no
    business attributing a holding to the
    Court on a question as to which it did
    not grant certiorari, it did not give the
    parties an opportunity to brief, and
    which was not the subject of argument.
    The Supreme Court does not make law by
    stealth. When it decides the issue, we
    will know it.
    We have a duty at this juncture to
    consider not only whether Bracy and
    Collins have succeeded in proving actual
    bias, but also whether, in light of what
    their discovery has (and has not)
    produced, the burden we have assigned to
    them is a realistic and appropriate one.
    Discovery, after all, has not proven that
    Maloney was in fact fair to any defendant
    who did not bribe him. It has simply
    failed to produce proof that he was
    actually biased against Bracy and
    Collins. It has, however, established
    that Maloney’s bribe-taking was not
    isolated, that he was sensitive to public
    detection of his bribe-taking, that on
    occasion he took compensatory actions in
    order to hide and further his bribe-
    taking, and that the successful
    prosecution of Bracy and Collins was a
    case that he could and did cite as proof
    that he was not corrupt. At the same
    time, the limits of discovery have been
    laid bare: the principal wrongdoer
    refused to acknowledge even taking a
    bribe, and others who might have provided
    some insight into his practices either
    claimed an inability to do so or refused
    to speak at all. There remains the very
    real possibility that Maloney might have
    engaged in compensatory bias against the
    petitioners, but without the glimpse into
    his mind that my colleagues agree would
    be difficult to obtain, ante at 4, we
    will never know it.
    And so we return to the fundamental
    problem that I highlighted in my first
    dissent. My colleagues believe that in
    the absence of any proof establishing the
    taint of compensatory bias in this
    particular case, we should assume that
    Maloney gave Bracy and Collins a fair
    trial. I remain puzzled as to the
    justification for this. After all, as the
    Supreme Court has recognized, the
    presumption that Maloney properly
    discharged his duties as a judge "has
    been soundly rebutted[.]" 
    520 U.S. at 909
    , 
    117 S. Ct. at 1799
    . Moreover, in
    contrast to the Tumey-Murchison-Aetna
    line of cases, we are not simply dealing
    here with a conflicted judge, but a
    corrupt one. Common sense suggests that
    the corrupt judge would be even more
    likely to yield to the temptation not to
    "hold the balance nice, clear, and true
    between the state and the accused,"
    Tumey, 
    273 U.S. at 532
    , 
    47 S. Ct. at 444
    ,
    than an honest one. Yet the court clings
    to the idea that Maloney’s bribe-taking
    was insular, and that he rendered
    acceptably fair trials when he did not
    take bribes. I doubt that my colleagues
    would be so complacent if they stood in
    the petitioners’ shoes. If a court system
    promised everyone a fair trial, but
    offered to stack the deck in a party’s
    favor for an appropriate fee, the cash
    machines and loan sharks nearest to the
    courthouse would be swamped with
    business, and not simply because everyone
    would want the favors that the fee might
    secure for them, but because no one could
    be confident in the fairness of
    supposedly impartial proceedings that
    others were buying their way out of. No
    one convicted by or before Maloney can
    feel sanguine, knowing that for as little
    as $2,500 he might have walked out of his
    courtroom a free person. And none can be
    sure that, in the absence of a bribe,
    Maloney did not take the opportunity to
    hide and/or promote his bribe-taking.
    The driving factor behind the court’s
    presumption that Maloney was impartial
    when not bribed is the same one that has
    lurked in the background since the start
    of this case--our reluctance to set a
    precedent that might undo the convictions
    of all those persons who were tried and
    convicted before Maloney. See ante at 5.
    "To reverse [the petitioners’]
    convictions or sentences would merely
    compound Maloney’s wrongdoing," my
    colleagues observe. Ante at 10. That
    view, however, underestimates the
    profound damage that a corrupt judge
    inflicts by shaking the public faith in
    the fairness of our judicial process.
    Ignoring the impact that a judge’s
    systematic acceptance of bribes has upon
    cases in which no bribe was tendered will
    simply magnify the distrust that results
    from official corruption. The truth is,
    given the passage of time, most people
    tried and sentenced by Maloney have
    served their prison terms, so few people
    would go free were retrials ordered for
    defendants like Bracy and Collins. But
    confidence in the integrity of the
    judicial system would be promoted. And in
    a State in which bribery has by no means
    vanished, requiring such retrials might
    encourage the State and its citizens to
    scrutinize the conduct of our public
    officials with a keener eye.
    It strikes me that the court’s
    disposition of this case is laden with
    irony. Defendants tried before judges of
    unquestioned integrity, with a possible
    temptation to favor the government, are
    entitled to new trials. Tumey, 
    273 U.S. 510
    , 
    47 S. Ct. 437
    . Defendants who bribed
    Maloney, only to be convicted by him when
    he decided that fixing their cases was
    too risky, have won new trials. Hawkins,
    
    690 N.E.2d 999
    . Even defendants who
    managed to initially escape conviction by
    successfully bribing Maloney are being
    given exactly what Bracy and Collins seek
    today--a fair trial before an honest and
    impartial judge. People v. Aleman, 
    1994 WL 684499
     (Cir. Ct. Cook County Oct. 12,
    1994), aff’d, 
    667 N.E.2d 615
     (Ill. App.
    1996), cert. denied, 
    519 U.S. 1128
    , 
    117 S. Ct. 986
     (1997); see also Aleman v.
    Honorable Judges of Circuit Court of Cook
    County, 
    138 F.3d 302
     (7th Cir.), cert.
    denied, 
    525 U.S. 868
    , 
    119 S. Ct. 162
    (1998). But these two petitioners,
    sentenced to death before a judge whose
    career as an attorney and judge was
    corrupt from beginning to end, are told
    that the judgment of a racketeer is
    perfectly satisfactory. It is a sad day
    indeed when defendants who attempted to
    purchase their way out of a conviction
    receive a greater measure of justice than
    those who did not.
    I respectfully dissent.
    /1 The known bribes amounted to less than $5,000 in
    several instances and in some cases $10,000 or
    more. The greatest known bribe tendered to Malon-
    ey was an undisclosed share of the $100,000 pay-
    off in Chow for the acquittal of three gang
    members in a notorious shooting in Chicago’s
    Chinatown. The other known bribes include the
    tender of $10,000 in Hawkins & Fields to acquit
    one or both of two El Rukn gang members of a
    double murder (a bribe that Maloney subsequently
    returned when he suspected that the FBI was
    monitoring the case), the $2,300 Maloney accepted
    in Roby in exchange for a sentence of probation,
    the $4,000 to $5,000 Maloney accepted to acquit
    the defendant in Jones of felony murder and
    sentence him to a term of nine years on the
    lesser charge of voluntary manslaughter. The
    alleged bribes tendered in Calistro (for a sen-
    tence of probation) and Rosario (where the defen-
    dant’s confession was suppressed and the case
    against him was eventually dismissed) were each
    in the amount of $2,500.
    /2 I would note, however, that discovery has hardly
    given us reassurance as to McDonnell’s creden-
    tials. It turns out that McDonnell was a twice-
    convicted felon who managed to regain his law
    license in 1980, the year before Bracy and Col-
    lins were tried. R. 213 Ex. 8, Deposition of
    Robert McDonnell, at 26-32; see United States v.
    Mirro & McDonnell, 
    435 F.2d 839
     (7th Cir. 1970);
    In re McDonnell, 
    413 N.E.2d 375
     (Ill. 1980).
    Coincidentally, McDonnell also had a reputation
    among his colleagues as a fixer of cases. R. 213,
    Ex. 11, Deposition of Terrence Hake, at 16. Years
    later, McDonnell would add yet another conviction
    to his curriculum vitae. See United States v.
    Taglia & McDonnell, 
    922 F.2d 413
     (7th Cir.), cert.
    denied, 
    500 U.S. 927
    , 
    111 S. Ct. 2040
     (1991).
    /3 The only other readily apparent means of estab-
    lishing actual compensatory bias--one that the
    state’s counsel (who with commendable grace and
    patience endured my pointed questions) identified
    at oral argument--would be a pattern of rulings
    and conduct so overtly hostile to the defense
    that the judge’s bias would be readily apparent
    from the record. That is obviously not the case
    here, or the petitioners’ convictions would long
    ago have been vacated.
    /4 My colleagues, of course, remain skeptical that
    a judge would engage in such compensatory bias.
    They have suggested that a corrupt judge might do
    better to cultivate a defense-friendly reputa-
    tion, so that paid-for acquittals look less out
    of place. See ante at 4. That skepticism, howev-
    er, ignores the possibility that the State might
    be less willing to consent to a bench trial
    before a defense-friendly judge, which in turn
    would make it more difficult for the judge to
    sell his services. It also overlooks the proof
    that Maloney did not hesitate to engage in com-
    pensatory bias on at least two occasions, when he
    convicted defendants who had bribed him in order
    to deflect the government’s suspicions--notwith-
    standing the incentive that his turnabout gave to
    those defendants to blow the whistle on him. It
    also overlooks Swano’s testimony, which suggests
    that Maloney engaged in compensatory bias not
    simply to avoid suspicion, but to cultivate
    additional bribes.