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 September 21, 2001--Decided March 29, 2002



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

  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
afederal 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 Bracy/1 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, 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, 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 (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 (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 (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 (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 cases both
because of his "direct pecuniary interest
in the outcome, and because of his
official motive to convict and to
graduate the fine to help the financial
needs of the village." Id. at 533.

  Revisiting the Ohio statutes in Ward v.
Village of Monroeville, 409 U.S. 57
(1972), the Supreme Court considered the
case of a mayor who was authorized to try
municipal and traffic violations, but who
was not personally entitled to pocket a
share of any fines imposed. The Court
found that a direct financial stake in
the outcome "did not define the limits of
the principle." The defendant was
entitled to a neutral judge, which this
mayor was not because money collected by
the "mayor’s court" benefitted the mayor
when he wore his executive hat in
controlling the village’s finances.

  Even the absence of an indirect
financial basis for a claim of bias was
not enough to save the conviction in In
Re Murchison, 349 U.S. 133 (1955), in
which the Court was concerned with the
appearance of bias. The Court concluded
that the same judge who acted, under
Michigan law, as a "one-man grand jury"
could not preside over a contempt
proceeding against a witness:

Fairness of course requires an absence of
actual bias in the trial of cases. But
our system of law has always endeavored
to prevent even the probability of
unfairness. To this end no man can be a
judge in his own case and no man is
permitted to try cases where he has an
interest in the outcome. That interest
cannot be defined with precision.
Circumstances and relationship must be
considered. This Court has said, however,
that "every procedure which would offer a
possible temptation to the average man as
a judge . . . not to hold the balance
nice, clear and true between the State
and the accused, denies the latter due
process of law." [citing Tumey]. Such a
stringent rule 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."
Offutt v. United States, 348 U.S. 11, 14.

Id. at 136.

  In Aetna Life Insurance Co. v. Lavoie,
475 U.S. 813 (1986), the Court again
based its finding of a due process
violation on the appearance of bias. A
justice of the Alabama Supreme Court sat
on a case which established that punitive
damages were available on a claim against
an insurer, a case which was similar to
one which the justice, himself as a
plaintiff, had pending in an Alabama
trial court. The Court was concerned with
the temptation that the justice might not
"hold the balance nice, clear and true."
These cases tell us that ordinarily
"actual bias" is not required, the
appearance of bias is sufficient to
disqualify a judge. But because of the
language in the Supreme Court case in
Bracy, we will focus today on actual
bias.

  The second concept--that the bias must
be found "in petitioner’s own case"--is
not surprising. In each of the cases we
just discussed, the bias--or appearance
of bias--appears in the very case the
court is considering. That is not an
unusual requirement. A habeas petitioner
cannot show a due process violation in
his own case because, for instance, the
judge refused to suppress evidence in
another case--or even that the particular
judge hardly ever suppresses evidence at
the request of the defense.

  But the nature and extent of Maloney’s
dereliction of duty casts this case in an
unusual light and makes it hard to put
Maloney in any normal framework. Not only
is he not entitled to any presumption of
fairness, but he is entitled to our
derision. Not only did he find himself
with the opportunity to show bias and
unfairness, he was a criminal who, by his
very presence on the bench, undermined
the foundation of our system of justice.
He was not a mayor presiding over an
ordinance violation case and setting a
fine, he was a racketeer sending men to
the death chamber in the name of the
State. It is hard to analyze what he did
by looking at cases involving municipal
fines or insurance claims. It is equally
hard to understand why his judgment
receives any level of protection.

  Our only explanation is that the unique
nature of this case may be why we need to
look for actual bias. Maybe it is because
the appearance of bias--or at least of
criminality--is so obvious. It may be
that we must be careful to tie our
analysis to actual bias in the present
case because Maloney was so obviously not
concerned with justice in other cases.
Whatever the reason, Bracy and Collins
have the heavy burden of showing actual
bias.

  The issue, then, is the means by which
they can meet their evidentiary burden.
Clearly, they can use evidence extrinsic
to the trial record in their case. After
all, the appeal to the Supreme Court
involved their right to take discovery.
But that discovery, as Judge Rovner
pointed out in her dissent in our panel
decision after remand, produced no
"smoking gun" or, as she also put it, no
"hard proof" of Maloney’s motives. 248
F.3d at 609. That, according to our panel
decision, is pretty much the end of the
story. To a certain extent, we disagree.

  We see no reason why Bracy and Collins
can show bias only by finding a smoking
gun, which in this case apparently would
be Maloney’s confession that he stacked
the deck against them to take the heat
off himself. Direct evidence of that sort
is simply not available. But evidence
short of a confession by Maloney is, as
we will see, present to support their
claim. From that evidence, reasonable in
ferences can be drawn.

  Furthermore, this is a death penalty
case. Like all others sentenced to death,
Bracy and Collins are entitled to our
painstaking review of their convictions
and death sentences because, as the
Supreme Court has often recognized, death
is different. See Gardner v. Florida, 430
U.S. 349 (1977), and cases cited therein.
We review the factual findings of the
district court for clear error. Legal
issues are reviewed de novo. Bocian v.
Godinez, 101 F.3d 465 (7th Cir. 1996).
Having concluded that review, we see
nothing that moves us to disturb the
meticulous opinion of Judge William T.
Hart in the district court (1) that it is
more likely than not that Maloney engaged
in compensatory bias in the death penalty
phase of this case, or (2) that the
evidence does not support such a finding
in the guilt phase of the trial.

  We have said that Maloney was a
criminal, a racketeer, but these words do
not convey just how serious his
misbehavior was. First, we know he was
convicted of racketeering, extortion, and
obstruction of justice in gang-related
murder cases. Maloney, 71 F.3d 645. His
corruption made it possible for him to
spend $400,000 more than he earned over 6
years ending in 1984. He was convicted of
taking a bribe to acquit Lenny Chow, a
hit man for a crime organization, who
with two other men was charged in the
murder of William Chin. Also with a bribe
in his pocket, Maloney acquitted Owen
Jones of a felony murder charge of
beating a man to death during a burglary
while convicting him instead on only a
lesser charge of voluntary manslaughter.

  Other cases show that Maloney was
capable of camouflaging his actions in
some cases by compensating for it in
others. He accepted a bribe of $10,000 to
acquit two El Rukn gang members of a
double murder, but he returned the money
when he suspected (correctly) that the
FBI was monitoring him. The Illinois
Supreme Court granted these men a new
trial because Maloney was motivated to
convict them in order to deflect
suspicion, a direct example of
compensatory bias. The court said:

That Maloney subsequently returned the
money did not render his interest in the
outcome any less acute. As defendants
suggest, he wanted to insure that he did
not lose his judicial post and salary as
a result of a criminal indictment, and
therefore was motivated to return a
verdict that would not spark the
suspicions of authorities.

People v. Hawkins & Fields, 690 N.E.2d
999, 1004 (Ill. 1998). Similarly, a
defendant named Dino Titone gave Maloney
a $10,000 bribe, but Maloney convicted
him anyway. Judge Earl E. Strayhorn, the
Illinois judge presiding over Titone’s
post-trial motion, vacated the conviction
because Maloney had a motive to convict
Titone to deflect suspicion from himself.
See People v. Titone, No. 83 C 127, post
conviction transcript (Cir. Ct. Cook
County, July 25, 1997), R239. Another
example of Maloney’s ability to cover his
tracks came from the experience of
attorney William Swano, a Maloney-briber
in previous cases. This time, Swano
represented a man named James Davis in a
case which Swano evaluated as weak. In
other words, Swano did not think a bribe
was necessary in order to win an
acquittal for Davis so no bribe was
offered. Swano was wrong; Davis was
convicted. At Maloney’s trial, Swano
testified that he construed the
experience as a lesson that "to practice
in front of Judge Maloney . . . we had to
pay."

 At Maloney’s sentencing, the United
States Government submitted a version of
his offense that is a blueprint for
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 manner of bribes on very
serious criminal cases. Thomas Maloney’s
reputation as a strict prosecution-
oriented judge was no 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 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.

We think this statement, the official
position of the Government of the United
States, accurately sums up Maloney’s
curriculum vitae.

  All this provides a framework for the
petitioners’ claim that, on occasion,
Maloney engaged in compensatory bias. The
task for Bracy and Collins is to connect
his bias with their case and they must do
it without being able to get inside
Maloney’s head. Their need to rely on
circumstantial evidence arises because
Maloney was not going to provide the link
through some sort of confession. During
discovery in this case he not only failed
to admit that he took any untoward
actions in this case: As Judge Hart put
it, he "vehemently and arrogantly denied
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.

  At his federal sentencing Maloney
pointedly remembered Bracy and Collins.
As he was insisting, in the face of all
evidence, that he had been an honest
judge with a distinguished career, he
cited as a credit to his record both the
case of Hawkins and Fields, where we know
he engaged in compensatory bias, and the
trial of Bracy and Collins as well. What
can we infer from this? One could say
nothing at all; any inference that
Maloney was motivated by the desire to
deflect suspicion from himself is simply
conjecture. Yet we think, in the context
of this case, it was certainly
appropriate for the district judge to
consider this reference an indication
that compensatory bias might very well
have been at work in the Bracy-Collins
case.

  And there is more. Consider Maloney’s
appointment of Robert McDonnell as
Bracy’s attorney. In 1981 Bracy’s
original attorney was given permission to
withdraw because Bracy ran out of money
to pay him. Maloney appointed McDonnell
to represent Bracy, and a short time
later McDonnell announced that he was
ready for trial.

  Bracy alleged that McDonnell was
appointed because he had been a partner
of Maloney’s, presumably a law partner,
and because Maloney was looking to
McDonnell to help ensure that Bracy would
be convicted. Discovery in this case
showed, however, that the two were never
law partners. But it also showed that
their connection was more troubling.
Maloney and McDonnell knew each other and
associated in some manner with Chicago
organized crime families. When Maloney
was a defense attorney in Chicago, his
reputation was that of a "fixer." In 1977
Maloney represented his friend Harry
Aleman, who was a "hit man for the mob."
Aleman was charged with murder. According
to Robert Cooley, a corrupt lawyer who
became an FBI informant, Maloney paid the
judge $10,000 and Aleman was acquitted.

  Like Maloney, McDonnell was also
considered an "outfit" lawyer. Not only
that, but in 1966 McDonnell himself was
convicted in federal court of conspiracy
to distribute counterfeit money and was
sentenced to 2 years in prison. In 1968
he was convicted of income tax evasion.
When he was released from prison for that
offense in 1972, he was disbarred. He was
reinstated to the bar in 1980 and
approached judges in criminal court for
appointments. It was, as we said, in 1981
that he was appointed to represent Bracy.
Later, in 1989, McDonnell was convicted
of conspiracy to defraud the government
and solicitation to influence the
operation of an employee benefits plan.
This time he was sentenced to 6 years,
and in 1990 he withdrew his name from the
Illinois roll of attorneys to save
himself from disbarment.

  What this reflects is that McDonnell did
not have a highly developed ethical
sense. It does not mean he did not have
legal skills--though not enough,
apparently, to escape detection himself.
We think it’s fair to infer that if
Maloney wanted a lawyer with questionable
ethics, McDonnell was his man.
Furthermore, in what could be construed
as an attempt to deflect suspicion, after
the Supreme Court decision in this case,
Maloney, who was in prison, called
McDonnell to obtain McDonnell’s signature
on an affidavit which stated that it was
actually Bracy who chose McDonnell as his
attorney. McDonnell testified that he did
not remember it that way.

  So far we have a corrupt judge with mob
connections, who attempts to cover his
tracks, and is now a convicted felon. We
have a defense lawyer, also with
organized crime ties, who is also a
convicted felon. Both are engaged in the
trial of two men who are in serious
danger of being sent to the death
chamber. With that as the setting, we
will now turn to the record to see
whether there is any evidence from which
to infer that Bracy’s and Collins’ due
process rights at trial or during the
death penalty hearing were violated in a
manner that can best be explained by
Maloney’s desire to appear tough.

  Our analysis is informed by the
principle that there is no harmless error
analysis relevant to the issue of
judicial bias. Edwards v. Balisok, 117 S.
Ct. 1584 (1997); Cartalino v. Washington,
122 F.3d 8 (7th Cir. 1997). In other
words, it does not matter that we might
conclude that any jury would have been
likely to convict Bracy and Collins and
approve death as their penalty no matter
what their attorneys tried to do for
them. Nor does it matter that a
questionable ruling might have been found
to be harmless by another court.

  First, the guilt phase of the trial. The
district court examined the discretionary
rulings at the trial and found that there
was no basis for concluding that the
rulings were tainted by Maloney’s attempt
to deflect attention from his corruption
in other cases. The petitioners
contended, for instance, that Nellum
committed perjury. They argued that
pieces of rope alleged to be consistent
with the type of rope used to bind one of
the victims were entered into evidence,
despite the fact that the rope was very
common and could have been purchased in
any hardware store. These weak
complaints, similar to those in many
other trials, do not allow an inference
of actual bias. Bracy and Collins also
complained that Maloney refused to
suppress photographs showing Collins in a
broad-brimmed hat, which was consistent
with a witness’s statement regarding his
appearance on the night of the murders.
Maloney chose to believe the police,
rather than Collins, regarding how and
where the photos were seized. Findings of
this sort, which judges often make
favoring a law enforcement version of
conflicting events, do not support a
claim of actual bias. We agree with Judge
Hart that no discretionary rulings during
the guilt phase of this trial lead to an
inference that Maloney was actually
biased against Bracy and Collins.

  The penalty phase of the trial is
another matter. In Illinois, that phase
is divided into two parts. First, the
jury decides if a defendant is eligible
for the death penalty. To be eligible, he
must be at least 18 years old and the
crime must have involved one of the
factors set out in the statute. Once a
defendant is found eligible for the death
penalty, the focus shifts to factors in
aggravation and mitigation. Unless
mitigating factors are sufficient to
preclude the imposition of the death
sentence, the defendant shall be
sentenced to death. 720 ILCS 5/9-1,
formerly Ill. Stat. ch. 38, par. 9-1.

  In evaluating Maloney’s rulings at the
penalty phase of this proceeding, we are
again mindful that death is indeed
different. In a separate opinion in
Spaziano v. Florida, 468 U.S. 447, 468
(1984), Justice Stevens pointed out that
in the 12 years that passed since Furman
v. Georgia, 408 U.S. 238 (1972), "every
Member of this Court has written or
joined at least one opinion endorsing the
proposition that because of its severity
and irrevocability, the death penalty is
qualitatively different from any other
punishment, and hence must be accompanied
by unique safeguards to ensure that it is
a justified response to a given offense."
Those safeguards, we think, are found not
just in the statutory provisions of any
given state, but also in the manner in
which those provisions are implemented in
trial courts. Additionally, while the
guilt phase of a trial is largely
objective, involving cold, hard facts
about what happened, a death penalty
hearing often involves a good deal of
subjective evidence. Evidence in
mitigation often consists of testimony
about what damaging forces a defendant
has endured in his life or what kind of
a person he otherwise is. We should not
be misunderstood to be saying that
rulings at the guilt phase are subject to
a harmless error analysis, whereas in the
penalty phase they are not. As we said
earlier, harmless error does not apply to
claims of judicial bias, ever, even in
cases involving insurance payments or
municipal ordinance violations, to say
nothing of first-degree murder trials.
But when we are dealing with alleged
judicial bias, the nature of evidence in
aggravation and mitigation requires us to
look at the penalty phase with a
skeptical eye, keeping in mind that as
the trial judge, it was Maloney’s solemn
responsibility to see that the death
penalty hearing was fair. He failed
miserably. And his failure was so
egregious that it supports an inference
that he failed, consciously or
unconsciously, because of compensatory
bias. If the death penalty hearing had
been scripted, it could not have been
more damaging to Bracy and Collins.

  We recall that McDonnell said he would
be ready for trial a few weeks after he
was appointed as Bracy’s attorney. But an
examination of the record shows, although
it turned out that he was adequately
prepared for the guilt phase of the case,
he wasn’t prepared for the penalty
hearing, nor could he have been. It was
not until the beginning of the trial that
the prosecutor announced that at the
penalty phase he planned to introduce, as
an aggravating factor, evidence that
Bracy was charged with murdering two
people in Arizona. So McDonnell was about
to embark on a jury trial in which his
client was charged with three murders.
And if Bracy were convicted, there would
be evidence of two more, as yet unproven,
murders committed in another state. We
doubt McDonnell could possibly have been
fully prepared for the penalty hearing.

  When the guilt phase was over and the
penalty hearing about to begin, McDonnell
objected to the use of the Arizona
murders as aggravating factors because
there had been, as yet, no conviction in
Arizona. Maloney seemed at first to agree
that the use of the testimony was
questionable. He said:

It hasn’t been tried? On what authority
are you going to introduce or attempt to
introduce it here?
Later he said, "Just assuming here if
that were the case and then he were to be
acquitted there and you had used part of
the same evidence. Then where would we
stand here?" On this point, Collins’
attorney, Irvin Frazen, asked for a
severance. He was concerned that the
Arizona evidence against Bracy would
spill over onto Collins. Ultimately,
Maloney denied Collins’ severance motion
and, without saying why, determined that
the Arizona evidence would be admitted.

  McDonnell then did the next best thing;
he appropriately asked for a continuance
so he could properly prepare for the
explosive Arizona evidence. He complained
that he had recently been provided 80
pages of information about the Arizona
case. The government said only 3 pages of
the 80 pages were relevant. Apparently
the prosecutor’s assessment was allowed
to prevail; again without giving a
reason, Maloney decided that the death
penalty hearing would proceed against
both defendants: "We are not adjourning
anything for a week or ten days. We are
proceeding, as a matter of fact."

  The evidence of the Arizona murders was
admitted and it was inflammatory. It was
the story of a nasty home invasion
resulting in the brutal murder of two
people. The survivor of the attack was
the wife of one of the victims and the
daughter of the other. She identified
Bracy as one of the attackers.

  The Illinois Supreme Court found no
error in the refusal to grant a
continuance because Bracy was not
prejudiced by the introduction of the
evidence. That was true, the court said,
because by the time of the appeal Bracy
had, in fact, been convicted in Arizona:

If we were to find the denial of the
continuance to have been improper and
remand for a new sentencing hearing, the
State would then introduce Bracy’s
Arizona convictions into evidence, thus
raising an even stronger inference that
Bracy committed the Arizona crimes.

478 N.E.2d at 286. This sounds to us more
like a finding of harmless error than a
finding that Maloney’s discretion was
properly exercised. Our job is different
from that of the Illinois Supreme Court.
We need to view Maloney’s actions as of
the time of trial. At that time, he could
not have known that Bracy would be
convicted, and for that matter there was
even some doubt that Bracy would actually
be tried in Arizona. In the context of a
capital sentencing hearing on an issue on
which harmless error does not apply,
Maloney’s ruling, even if supportable on
a direct appeal as not being an abuse of
discretion, lends support to an inference
that he was showing compensatory bias. It
is more than a fair inference that
increasing the likelihood of the
imposition of the death penalty would be
fine with Judge Maloney.

  Later, McDonnell again objected to the
Arizona evidence, saying that it had come
to his attention that there was a 1980
case presumably supporting his position
that the evidence was inadmissible
"although I do not have the citation."
When asked if he had a case on point,
McDonnell said, "McDonnell/2 on common
sense." He repeated that he did not have
the citation. He said, "I will try to
find the case. If I can’t find it, the
Appellate Court can find it or the
Supreme Court." Maloney said "All right."
Less concern about the fate of the
defendants and the importance of this
discretionary ruling on the admissibility
of explosive evidence could hardly be
imagined.

  Finally, mitigation. No evidence in
mitigation was presented as to Bracy and
little was offered as to Collins. Yet
evidence in mitigation is crucially
important in death penalty litigation. In
Lockett v. Ohio, 438 U.S. 586, 604
(1978), the Court said that the
"sentencer" must not "be precluded from
considering, as a mitigating factor, any
aspect of a defendant’s character or
record and any of the circumstances of
the offense that the defendant proffers
as a basis for a sentence less than
death." See also Buchanan v. Angelone,
522 U.S. 269 (1998).

  Maloney was sublimely unconcerned about
a lack of evidence in mitigation, as
unconcerned as he was about McDonnell’s
lack of preparation for meeting the
Arizona evidence. In fact, Maloney even
tried to discourage McDonnell from making
a closing argument at the death penalty
hearing.

MR. McDONALD [SIC]: Wait a moment, judge.

THE COURT: What do you want?

MR. McDONALD: I want to argue.

THE COURT: You do?

MR. McDONALD: Certainly.

Maloney then called for a side-bar
conference:

THE COURT: You don’t have to argue in this
case.

MR. McDONALD: I want to argue.

MR. FRAZIN: Arguments are part of it.

THE COURT: They can be but they don’t have
to be.

Ultimately, arguments were allowed.

  McDonnell seemed to do the right thing
in insisting on argument. But given his
inability to counter the Arizona evidence
because of Maloney’s denial of the
continuance, he had nothing to say about
the State’s evidence in aggravation. With
no evidence in mitigation, he had nothing
to talk about on that score as well. So
it should come as no surprise that his
"argument" was simply a tirade against
the death penalty:
This is a human being and we don’t have
the right to take another person’s life.
Only God can do that. God gave us this
life and only God can take it away, and
I don’t care, none of us have the right
to take a fellow human being’s life, not
Bracy, not his Honor, not the prosecutor,
and not you people.

  Not only is this sort of argument
inadmissible in a sentencing hearing, see
People v. Williams, 454 N.E.2d 220
(1983), but, worse, it "invited" the
prosecution to come back with an
incendiary retort of its own--that to say
the death penalty is wrong is to malign
all veterans:

I’ve heard that before. People in 1941
through 1945 killed in the name of their
country [at which time an objection was
overruled] in service to their country.
Some of us went to Viet Nam and had to
kill for this country, and I will be
damned if anybody is going to tell me
that what we did in Viet Nam or in any
other war was a violation of the Fifth
Commandment of the Bible.

Later, the prosecutor referred to
McDonnell’s argument as "a slap in every
veteran’s face."

  The prosecutor also alluded to the
chance that Bracy and Collins might
"escape from Stateville" again if they
were given another chance: "Should we
give them another chance; lock them up
and give them a chance to escape and kill
someone else?"

  The Illinois Supreme Court noted that
the prosecution’s remarks were a "bit
dramatic" but rejected the claim that
they constituted reversible error
because, the court said, "there is no
question that they [the prosecutor’s
remarks] were invited." We agree. The
remarks were invited. McDonnell’s
argument was so objectionable that it is
hard to see how he or Maloney could not
have known what type of response the
prosecution was going to make to it. It
is pushing credibility to imagine that an
experienced trial judge (for Maloney was
experienced, if not honest) did not see
this scene unfolding. The prosecutor
repeatedly called Maloney’s attention to
the objectionable nature of McDonnell’s
argument. Yet Maloney did nothing.
Imposition of the death penalty was a
foregone conclusion in this case.

  Had the prosecutor’s comments not been
invited, it seems likely that the courts
of Illinois might very well have ordered
a new death penalty hearing for Bracy and
Collins a decade ago. In Murray Hooper’s
first appeal, the Illinois Supreme Court
vacated his death sentence. Hooper, as we
have said, was charged along with Bracy
and Collins with the murders in the
present case. In Hooper’s case the
prosecutor speculated that if he were
placed in prison for life, Hooper might
very well kill a guard or a chaplain.
Relying on cases where it found a
reference to parole and to the
possibility of committing more murders
improper and prejudicial [People v.
Walker, 442 N.E.2d 83 (1982); People v.
Gacho, 522 N.E.2d 1146 (1988)], the court
vacated Hooper’s death sentence. People
v. Hooper, 552 N.E.2d 684 (1989).
Reference to escape from prison in
Bracy’s and Collins’ case can hardly be
less damaging than reference to the
possibility of parole in Hooper’s. It
seems likely that if McDonnell had not
set the prosecutor up so nicely, and if
Maloney had not been so deliberately
indifferent to the petitioners’ fates,
the death sentences imposed on Bracy and
Collins might, like Hooper’s, have been
vacated many years ago.

  What possible motive could Maloney have
had to allow such gross impropriety at
this hearing? We feel compelled not to
shirk from seeing the strong inference,
given what we now know about Maloney,
that he deliberately let this death
penalty hearing become a debacle because
imposition of the death penalty on these
two men would bolster his reputation as a
tough judge. We must do no less than
Judge Strayhorn who, while recognizing
the extent of Maloney’s corruption, also
recognized that in the Titone case he
could not be certain about the role
corruption might have played. He said,
"I’m always faced with the fact that I
can’t answer the question of was he tried
in a fair tribunal before a judge who
gave him a fair and an honest trial. And
I must always stop and say that honestly
I don’t know." But he also said, "no
amount of procrastination on my part, no
amount of reluctance on my part can wipe
out the fact that . . . what went on in
that courtroom as to Dino Titone was not
justice." He ordered a new trial.

  In our case, it is a fair, if not
inevitable, inference that Maloney used
the death penalty hearing to deflect
suspicion that might be aroused because
of, say, his acquittal of another accused
murderer who had bribed him. Without a
confession from Maloney, we never will
know for sure. But absolute certainty is
not required. The burden we place on
petitioners never is absolute.
Defendants--especially defendants facing
death--have a right under the Due Process
Clause to a "fair trial in a fair
tribunal." Withrow v. Larkin, 421 U.S.
35, 46 (1975). We think this means they
have a right to a judge who takes
seriously his responsibility to conduct
fair proceedings, a judge who looks out
for the rights of even the most
undeserving defendants. Maloney fell far
short of that mark. Given all the other
circumstances that show Maloney’s utter
disregard for justice, we think the
inference that compensatory bias was at
work in the death penalty phase of this
case is a more compelling explanation for
Maloney’s actions than things like incom
petence, negligence, happenstance, or
accident. The judgment affirming the
convictions of William Bracy and Roger
Collins but vacating their death
sentences is AFFIRMED. The State may
proceed, at its discretion, with a new
penalty hearing as directed by the
district court. The case is REMANDED to
the district court for further
proceedings.

FOOTNOTES

/1 As noted in prior court decisions in this case,
"Bracy" is sometimes spelled "Bracey." We have
used the "Bracy" spelling and have changed the
spelling in other cases we cite to conform to
ours.

/2 The court reporter often referred to McDonnell as
McDonald and actually did so here, typing the
statement as "McDonald on common sense."




  Posner, Circuit Judge, with whom Easterbrook and
Manion, Circuit Judges, join, concurring and
dissenting.
  I agree that the convictions should stand
(though my reasoning differs from Judge Evans’s),
but not that the death sentences should be
reversed. Judge Maloney, whose alleged bias is
the only issue in this appeal, presided over both
phases of the case. There is no basis for
supposing him unbiased until the defendants were
convicted, then biased at the sentencing hearing.
Such a supposition offends common sense. What
must be driving the outcome of the appeal is a
sense of discomfort with Maloney’s antics that is
too great to contemplate executions without acute
distress but not too great to contemplate life
sentences. That is the only meaning I can assign
to Judge Evans’s reference to a "toxic mix." For
Bracy and Collins have failed to show that they
were denied due process of law either at trial or
in sentencing. To reverse their sentences is
merely to compound Maloney’s wrongdoing. To
reverse while upholding the convictions is an
unprincipled splitting of the difference, rather
than legal justice. It is the sort of thing an
arbitrator might do or a mediator propose. It
would be understandable as a settlement; it is
indefensible as a judgment.

  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 were sentenced to death by the jury. We
affirmed the denial of federal habeas corpus
relief in Bracy v. Gramley, 81 F.3d 684 (7th Cir.
1996). 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 Judge 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).

  Maloney had been 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 Bracy or Collins 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 his 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 Judge Rovner, the dissenting judge 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 to provide a
basis for relief for Bracy (and hence for
Collins) compensatory bias must 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 Bracy and Collins had been
convicted and sentenced in violation of due
process; they would have to prove that Maloney
had been biased ("actually biased," as the Court
said) at their trial. Also noteworthy is the
Court’s approving reference to the description in
our panel opinion 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, a high probability of bias is, in
the absence of confession, the most that can ever
be proved, and sometimes the objective
circumstances alone are enough to establish the
requisite probability or at least to establish
that no ordinary person would believe that a
judge would not yield to such a temptation. But
it is apparent from the passages that I 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 Judge Rovner 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 the trial of Bracy and
Collins. The Court thought it crucial to
determine whether Judge Maloney had succumbed.
Later we decided a case involving a different
corrupt judge, Cartalino v. Washington, supra, in
which the requisite proof was supplied: the
bribery scheme included convicting Cartalino.
There is no evidence that convicting Bracy and
Collins was part of Maloney’s bribery scheming.

  If the mere possibility of compensatory bias
were enough to establish actual bias, all
decisions by a judge who accepted bribes would be
invalidated--in the case of Judge Maloney,
literally thousands. That is another distinction
between compensatory bias and a financial stake
(or family relationship). A financial stake is
case specific. The temptation it offers the judge
is limited to the case in which he has a stake.
His other cases are unaffected. But the theory of
compensatory bias implies that all the judge’s
decisions in criminal cases are fatally
contaminated--the cases in which he was bribed,
of course, but also the cases in which he was not
bribed; and so--all his cases. The Supreme Court
did not adopt and would not countenance a rule
that compensatory bias can be presumed from the
fact that a judge has accepted bribes in some
cases. Judge Rovner’s opinion in the present
round disregards the Supreme Court’s mandate. She
repeats the position she took in the original
appeal-- the position the Court disapproved--that
all of Maloney’s convictions (and presumably
those of any other bribe-taking judge) must be
set aside and that case-specific evidence of
compensatory bias is always unnecessary, and
indeed irrelevant. The Court made unmistakably
clear that compensatory bias must be proved to
have been operative in the particular defendant’s
case. Proof of this is not impossible, as
Cartalino illustrates. Bias could also be
inferred, much as discrimination often is
inferred, from a pattern of rulings that could
not be satisfactorily explained on any hypothesis
other than that of compensatory bias. The
evidence need not always be case specific.
Maloney was deposed as part of the discovery
conducted on remand. Had he testified that he had
practiced compensatory bias in all the cases in
which he had not been bribed, and his testimony
had been believed, or if evidence had been
presented of a conspiracy to practice
compensatory bias in every case in which no bribe
was offered to the judge, an absence of evidence
about the motive for his rulings in the trial of
particular defendants who had not offered bribes
would not be fatal. (It wouldn’t even matter if
he didn’t remember the trial at all.) All that
had to be established in the remand proceeding
that the Supreme Court ordered, in order to
justify ordering a new trial for Bracy, was a
factual basis for inferring that Maloney probably
did harbor an actual bias against him.

  That could not be inferred, however, from the
fact that Maloney took bribes or even 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. In general a corrupt criminal judge has
no need to lean against criminal defendants who
have not bribed him, because most criminal
defendants are guilty and will be convicted
anyway.

  The discovery ordered by the Supreme Court drew
a blank. Much of it 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 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 this court and wipes out the theory
of bias that was the focus of the Supreme Court’s
discussion of the need for discovery.

  It is true 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,
and that this led the district judge to find (id.
at 908) that

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 is naked conjecture, however, and so cannot
be the basis of a valid factfinding. Libman Co.
v. Vining Industries, Inc., 69 F.3d 1360, 1363
(7th Cir. 1995); United States v. Givens, 88 F.3d
608, 613 (8th Cir. 1996); Thompson v. Washington,
266 F.2d 147, 148-49 (4th Cir. 1959) (per
curiam); In re Kuttler’s Estate, 8 Cal. Rptr.
160, 169 (Cal. App. 1960) ("an inference may not
be based on suspicion alone, or on imagination,
speculation, supposition, surmise, conjecture, or
guess work. . . . A finding of fact must be an
inference drawn from evidence rather than . . .
a mere speculation as to probabilities without
evidence"). 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 ("recommendation" is thus a misnomer).
It does not follow that when he presided at trial
he was thinking of how the defendants’
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 bribetaking
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 the
district judge gave as examples of Maloney’s
"acting to deflect suspicion from his corrupt
conduct" are cases in which Maloney accepted
bribes; 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. He returned the bribe five years after the
trial of Bracy and Collins; there is no
indication that he was, or thought he was, under
suspicion at the time of that trial.

  The district judge 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 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 Justice Department was
pressing for a very long sentence (more than 20
years), and it pulled out all the stops.

  Despite this "evidence" of compensatory bias,
the district judge concluded 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 bribe taking 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). This is an important finding,
which not being clearly erroneous binds us. It
requires (as the Supreme Court had already made
clear) evidence that compensatory bias was at
work in this case. It forbids us to rest on a
presumption that compensatory bias was at work in
every case in which a defendant tried before
Judge Maloney was convicted.

  In the light of this finding, the district
judge as he was required to do examined Maloney’s
rulings at the trial of Bracy and Collins and
found none at the guilt phase of the trial that
displayed bias. He concluded that the convictions
were untainted. The conclusion is correct. For
all that appears, Maloney was a prosecution-
minded judge for reasons unrelated to his taking
bribes. That he would accept bribes 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. His conduct was
appalling, his character depraved, but the bridge
to the trial of Bracy and Collins is missing.

  However, turning to Maloney’s rulings at the
sentencing phase of the 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 sentencing
hearing from Bracy’s and hold 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. (Bracy had not
yet been convicted of the Arizona murders; later
he was, and he was sentenced to death; that
sentence is pending.)

  Collins 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.
But all this to one side, there is no basis for
upholding Bracy’s and Collins’s convictions but
setting aside their sentences. The incentive to
engage in compensatory bias is stronger at the
trial of guilt than at the sentencing hearing.
Most criminal defendants are convicted, so a
judge who wants a reputation as a tough
sentencer, either to induce bribes or to avoid
charges of undue lenity, will have an incentive
to make rulings favorable to the prosecution, so
that the defendant will not walk. Had these
triple-murdering defendants been acquitted,
eyebrows might have been raised. But the
imposition of the death sentence is a matter of
grace to be determined by the jury. Maloney would
not have been "blamed" if the jury had exercised
its unreviewable power of lenity and declined to
recommend sentencing Bracy and Collins to death.
For all we know, that is a common sequel to the
conviction of defendants in capital cases in
Illinois.

  The only thing on which Judge Evans can hang
the distinction between the sentencing phase and
the guilt phase of the trial, moreover--the
refusal to try Bracy and Collins separately--was
before the Supreme Court when in remanding the
case to us it made clear that Bracy and Collins
could prevail only if discovery disclosed
evidence of compensatory bias. It did not.

  There is a lot of "death is different" talk in
Judge Evans’s opinion. Maybe he wishes to suggest
that compensatory bias has a different meaning in
capital-sentencing than in other proceedings.
That’s a position Bracy’s own lawyer rejected at
the en banc argument. He was emphatic that
compensatory bias if proved would invalidate a
misdemeanor conviction or for that matter a
judgment in a civil case; Aetna Life Ins. Co. v.
Lavoie, 475 U.S. 813 (1986), on which he heavily
relied, was a civil case. He was right. A civil
litigant and a misdemeanor defendant are entitled
to an unbiased judge, just like a capital
defendant. The Supreme Court’s elaborate
jurisprudence on the death penalty does not
include a special standard of judicial bias for
capital cases only. When compensatory bias is
shown, the losing party is entitled to relief
regardless of the nature of the case.

  The capital nature of this case is relevant
only in the following very limited sense: a judge
conceivably might be biased in one stage of a
case but not all stages, so if there are
severable stages, such as the guilt and
sentencing phases of a capital case, bias at the
last stage might not spill back into the earliest
stage. If anything, as I have pointed out, Judge
Maloney was more likely to be biased against
defendants at the guilt stage of the proceeding
than at the sentencing phase. There is nothing to
suggest that he was indifferent to whether they
were convicted but determined if they were
convicted to see that they were executed. Nothing
in the theory of compensatory bias or in
thepsychology of Maloney supports such a
conjecture. Critically, there is no evidence to
support it.

  No evidence, but plenty of rhetoric. Judge
Evans states: "It is more than a fair inference
that increasing the likelihood of the imposition
of the death penalty would be fine with Judge
Maloney." And: "Less concern about the fate of
the defendants . . . could hardly be imagined."
And: "Maloney was sublimely unconcerned about a
lack of evidence in mitigation." And: "It is
pushing credibility to imagine that an
experienced trial judge . . . did not see this
scene unfolding." And: "Maloney [was]
deliberately indifferent to the petitioners’
fates." From this it is inferred that Maloney
"deliberately let this death penalty hearing
become a debacle because imposition of the death
penalty on these two men would bolster his
reputation as a tough judge." But the judge does
not impose the death penalty; the jury does. And
of course Maloney might have wanted a reputation
as a tough judge for reasons unrelated to
compensatory bias. And he might not have been
seeking a reputation as a tough judge--he may
just have been disgusted by these defendants’
crimes, or he may have been a bad judge, or he
may have thought capital punishment the right
punishment for murderers, or he have been pro-
prosecution on general principles, or all these
things may have been true. In failing to canvass
these possibilities, Judge Evans’s opinion
reveals a lack of imagination. Furthermore,
Maloney’s rulings at the guilt phase of the trial
also consistently favored the prosecution, as
Judge Evans’s opinion fails to make clear; it is
no surprise that Maloney’s rulings at the
sentencing hearing favored the prosecution as
well. If Maloney was not biased in presiding at
the guilt phase of the trial despite his
consistent leaning in favor of the prosecution,
how as a matter of logic and common sense can we
have any confidence that he suddenly,
inexplicably--indeed irrationally-- became
biased at the penalty phase?

  The language that I have quoted from Judge
Evans’s opinion really points in a different
direction--toward a conclusion that Maloney
created an "appearance of impropriety,"
concretely that he gave the appearance of being
determined to do in Bracy and Collins. Not only
need such a determination have nothing to do with
compensatory bias, but in an earlier en banc
opinion of this court that Judge Evans’s opinion
neglects to discuss we held that a judge’s mere
appearance of impropriety does not render a
judgment in violation of due process. Del Vecchio
v. Illinois Dept. of Corrections, supra, 31 F.3d
at 1371-72; see also id. at 1389, where this
ruling is elaborated. Appearances and suspicions
are all that the court has going for it in this
case.

  The judgment of the district court should be
affirmed insofar as it upheld the convictions but
it should be reversed insofar as it invalidated
the sentences.




  ROVNER, Circuit Judge, with whom RIPPLE, DIANE P.
WOOD, and WILLIAMS, Circuit Judges, join, concurring
in part and dissenting in part. This case demands
that we give concrete meaning to a cornerstone of
our justice system--an impartial judiciary. The
right to a fair and unbiased judge is undisputed.
Bracy v. Gramley, 520 U.S. 899, 904-05, 117 S.
Ct. 1793, 1797 (1997). But as with any
constitutional safeguard, proof of the right lies
in its enforcement. See Davis v. Passman, 442
U.S. 228, 241-42, 99 S. Ct. 2264, 2275 (1979).
Here we are asked to decide whether a judge who
was actively engaged in bribe-taking could be
(and was) impartial in a case where no bribe was
tendered, or whether his financial and penal
interests tainted his decision-making even when
no money changed hands.

  Any inquiry into what motivates a judge to rule
is perilous. Our concept of justice depends on
the notion of an impartial judiciary, and yet we
know that true impartiality in a judge is no more
than an aspiration. Judges are human beings, and
so they can never completely transcend the limits
of their own experiences and perspectives. In the
usual case, then, we abstain from looking behind
a judge’s rulings, content to treat his oath of
office as sufficient proof that he acted free
from bias. "As Blackstone put it, ’the law will
not suppose a possibility of bias or favour in a
judge, who is already sworn to administer
impartial justice, and whose authority greatly
depends upon that presumption and idea.’" Aetna
Life Ins. Co. v. Lavoie, 475 U.S. 813, 820, 106
S. Ct. 1580, 1584-85 (1986), quoting 3 W.
Blackstone, Commentaries, at *361. Here we cannot
sweep human nature under the rug. Maloney did not
simply try but fail to administer justice
impartially; he deliberately and repeatedly
abandoned his oath of neutrality for his own
gain. We know that Maloney accepted bribes to fix
at least four cases, and the hundreds of
thousands of dollars in expenditures for which
his reported income does not account raises the
distinct possibility that these were merely the
tip of theiceberg. See R. 161 Exs. 53, 54;
Collins v. Welborn, 79 F. Supp. 2d 898, 907 para.
40 (N.D. Ill. 1999).

  Ironically, the fact that Maloney was a corrupt
judge makes it harder rather than easier for us
to decide whether he was an impartial
decisionmaker in the petitioners’ case. The
evidence has not given us a direct look into
Maloney’s mind, so we have no way of knowing for
certain whether Maloney acted from a position of
bias or impartiality when he presided over the
trial of Bracy and Collins. We must instead look
to his rulings at trial, and to the circumstances
surrounding his bribe-taking, for clues as to his
motives and disposition. And the absence of
evidence that can definitively confirm or dispel
the possibility of bias presents us with a choice
between two unappealing courses of action. We can
infer from the circumstances that Judge Maloney’s
corruption rendered him partial and vacate the
petitioners’ convictions, a step that will
necessitate a retrial many years after they were
convicted. To Judge Posner’s way of thinking,
this simply compounds the wrong that Judge
Maloney committed by accepting bribes. Ante at
23. Or, in the absence of direct proof of bias,
we can cling to the notion that Maloney was a fit
and fair judge so long as he was not bribed. To
say that a serial bribe-taker meets the
constitutional standard of impartiality, however,
is a hard pill to swallow. Judge Evans
appropriately asks why the decision-making of a
corrupt judge is entitled to any protection at
all. Ante at 8.

  I submit that the question would be much easier
to answer if we were asked to decide it ex ante.
Suppose for a moment that a district judge within
our jurisdiction announced on his first day of
service that he was sworn to be impartial and
that he would give the parties a fair trial
unless the defendant wished to bribe him, in
which case he would give the defense a leg up.
That is essentially how Judge Posner postulates
that Maloney operated--that he gave the parties
a fair trial unless bribed to do otherwise; it is
just that Maloney did not announce his bribe-
taking to the world. But imagine for a moment
that our hypothetical judge did. If a defendant
unwilling to tender a bribe--or for that matter
the prosecutor--sought mandamus complaining that,
in view of the announcement, the judge did not
constitute an impartial decisionmaker, I very
much doubt that we would deny the request with an
admonition that so long as no bribe was tendered,
the parties had nothing to worry about. The
judge’s removal from the case and from the bench
would be swift and certain.

 Our inquiry in this case is burdened by the
fact that Judge Maloney’s bribe-taking was not
exposed until after he had been a trial judge for
many years. The question really is no different
than the one we would have to answer in my
hypothetical, but the ramifications are more
weighty. Maloney presided over the disposition of
thousands of cases, and recognizing his lack of
impartiality in one case presents the prospect
that all of the cases he handled must be vacated.
Indeed, that uncomfortable prospect is the one
and only justification that has been offered over
the long history of this litigation for
concluding that a thoroughly corrupt judge
amounts to a constitutionally acceptable
decisionmaker. We acknowledge that Maloney’s
conduct was appalling, that his crimes showed
contempt for his office, but we say nothing about
why, doctrinally, a judicial racketeer should be
considered a fair and impartial decisionmaker.

  In most cases, of course, we may simply presume
that the trial judge was impartial. E.g.,
Schweiker v. McClure, 456 U.S. 188, 195, 102 S.
Ct. 1665, 1670 (1982). But, as the Supreme Court
has recognized, that presumption has been
"soundly rebutted" in view of Maloney’s extensive
history of corruption. Bracy, 520 U.S. at 908-09,
117 S. Ct. at 1799. The Supreme Court concluded
that the dissipation of the presumption amounted
to "good cause" which entitled Bracy and Collins
to discovery so that they might attempt to show
bias. Id. at 908-09, 117 S. Ct. at 1799. As Judge
Evans appropriately recognizes, it also
establishes the starting point for our review of
the results of that discovery. Ante at 5.

  Before we proceed further, however, we must ask
who bears the burden of establishing Maloney’s
impartiality or lack thereof, given that the
presumption of impartiality has already been
rebutted. Both Judge Evans and Judge Posner
assume that it is the petitioners’ burden to show
bias. See ante at 5, 25. Given the fundamental
nature of the constitutional right in question
and the gravity of Maloney’s misconduct, however,
I wonder if that is right. Judicial bias is among
the kind of structural errors which implicate
both the fundamental fairness of the trial and
society’s perception of the integrity of the
process. See United States v. Harbin, 250 F.3d
532, 543 (7th Cir. 2001). Consequently, judicial
bias if proven requires automatic reversal; as
Judge Evans notes, it is not subject to harmless-
error review like most trial errors. Ante at 14;
see Sullivan v. Louisiana, 508 U.S. 275, 279, 113
S. Ct. 2078, 2081 (1993), citing Tumey v. Ohio,
273 U.S. 510, 535, 47 S. Ct. 437, 445 (1927).
Here, of course, the issue is whether bias has
been shown. In the usual case, it would be the
petitioners’ burden to make that showing.
Schweiker, 456 U.S. at 196, 102 S. Ct. at 1670.
Yet, we all recognize the inherent difficulty of
peering into the mind of a corrupt judge and
assessing whether he had a wish to see these
particular petitioners convicted and/or sentenced
to death. Ante at 9, 26; see Cartalino v.
Washington, 122 F.3d 8, 11 (7th Cir. 1997). Not
surprisingly, given Maloney’s ongoing
protestations of innocence and the invocations of
the Fifth Amendment among his cohorts, Bracy and
Collins have not secured an admission that
Maloney invariably engaged in compensatory bias
or that he did so in this particular case. See
ante at 27-28. What they have shown, however, is
that Maloney engaged in a pervasive pattern of
corruption that was in full flower when they came
before him: Recall that Bracy and Collins were
tried shortly before Maloney commenced the
notorious trial of People v. Chow, in which he
was paid to acquit each of the three defendants
of murder. See Collins, 79 F. Supp. 2d at 903,
908 para.para. 12, 47. We are naturally reluctant
to embark on a path that theoretically might lead
to the undoing of every one of the thousands of
cases over which Maloney presided. But if it was
possible for Maloney, when not bribed, to provide
the parties with a fair trial, why should it not
be up to the State--which has far greater
resources-- to supply us with adequate proof of
his impartiality?

  Our opinion in Harbin recognizes a category of
trial errors that occupy a middle ground between
the usual kinds of errors, which are subject to
harmless-error review, and structural errors,
which are conclusively presumed to be prejudicial
and therefore result in automatic reversal. 250
F.3d at 543-44. These are serious errors, like
jury tampering, which create an obvious and
significant potential for prejudice, but which
are, at the same time, difficult for a defendant
to prove harmful. In such cases, prejudice is
presumed but not conclusively--if the government
can show that no harm resulted, then the
conviction will stand. Id. at 544.

  I submit that the corruption of the trial judge
falls into this category of errors. Maloney’s
willingness to repudiate the oath of impartiality
by repeatedly accepting bribes calls into
question his ability to be fair in any case. See
ante at 8. If he was inclined to help the State
when not bribed-- whether to camouflage his
corruption or to promote future bribes--the
potential prejudice to a defendant who did not
bribe him is obvious. Yet as this case makes
altogether clear, proving the manifestation of
that bias is extremely difficult. To assign the
burden of proof to the petitioners may therefore
be unrealistic and improper. Maloney was the
State’s representative. See ante at 8. His bribe-
taking was wholly beyond the petitioners’
knowledge and control. If the State, in the face
of evidence establishing that Maloney’s
corruption knew no bounds, wishes to defend the
validity of the convictions over which he
presided, then the burden arguably should fall
upon it to affirmatively establish that Maloney
was a fair and impartial judge when not bribed.

  If the burden of proof is to be assigned to the
petitioners, as Judges Evans and Posner both
assume that it should be, then the limits of the
proof available to them must be recognized. When
the panel heard oral arguments in this case
following the remand, I asked the State’s counsel
how Bracy and Collins might successfully prove
that Maloney was biased. The State’s counsel
conceded that such a showing was all but
impossible to make, absent an admission from
Maloney himself or a pattern of courtroom conduct
so obviously askew as to make his bias plain. The
reason for the difficulty is obvious. Without a
direct glimpse into Maloney’s mind, we are left
to look for indirect and incomplete clues as to
Maloney’s motives.

  Proceeding from the premise that a judge’s bias
may be shown indirectly, ante at 8-9, Judge Evans
locates some facts which raise the possibility
that Maloney engaged in compensatory,
camouflaging bias in this case: Maloney’s
appointment of McDonnell, a two-time felon and
"outfit" lawyer, to represent Bracy; his citation
of the convictions of Bracy and Collins (along
with those of Hawkins and Fields) at his own
sentencing as purported proof that he was an
honest judge; and Maloney’s unsuccessful effort
to secure an affidavit from McDonnell asserting
that it was Bracy, not Maloney, who chose
McDonnell. Ante at 12-14. Collectively, these
facts suggest that Maloney may have been looking
at the Bracy-Collins prosecution as an
opportunity to hide his bribe-taking, if not to
cultivate additional bribes. Although Judge Evans
detects no sign that such a compensatory bias was
at work during the guilt/innocence phase of the
trial, several circumstances suggest to him that
Maloney may indeed have abandoned his "solemn
responsibility" to assure the fairness of the
penalty phase. Ante at 16. These include the
summary denials of Bracy’s motion to exclude
evidence regarding the Arizona murders, Collins’
alternative motion for a severance, and Bracy’s
alternative motion for a continuance; Maloney’s
efforts to actively discourage McDonnell from
making a closing argument at the penalty hearing;
and his failure to stop McDonnell (even in the
face of the State’s objections) from engaging in
a tirade against the death penalty, a tirade
which invited the prosecution to make an argument
that might have constituted reversible error had
the defense not invited it. Ante at 16-22.

  By contrast, Judge Posner’s analysis proceeds
from the premise that a judge’s compensatory bias
must be established directly, rather than
inferentially. See ante at 27-28. He postulates
that a case-specific bias could be shown in the
same manner that it was in Cartalino, 122 F.3d at
10, where there was evidence that the judge had
agreed to acquit one defendant and to do what he
could to secure the conviction of the complaining
co-defendant. Ante at 27. Or the trial record
might reflect a pattern of rulings so blatantly
slanted in favor of the State that it cannot be
explained by any theory other than compensatory
bias. Ante at 27. Alternatively, the petitioners
might prove, through the corrupt judge’s own
testimony or through unspecified other evidence,
that the judge had resolved to secure the
convictions of all defendants who did not bribe
him. Ante at 27-28. There is no such evidence
here; and for Judge Posner, that ends our
inquiry. That Maloney engaged in a pattern of
bribe-taking does not alone, in his view, permit
the inference that he ever engaged in
compensatory bias. Ante at 27. Nor does proof
that he harbored such bias in some cases permit
the inference that he indulged such bias in this
case. Id. In the end, Judge Posner concludes, all
that the court can point to is the appearance of
bias, and that appearance, as this court held in
Del Vecchio v. Illinois Dep’t of Corrections, 31
F.3d 1363 (7th Cir. 1994) (en banc), cert. denied,
514 U.S. 1037, 115 S. Ct. 1404 (1995), does not
alone permit us to invalidate the petitioners’
convictions. Ante at 34-35.

  In my view, Judge Evans and Judge Posner are
both right--in part. Ultimately, however, both of
my colleagues attempt to cabin the effects of
Maloney’s wrongdoing in ways that are
inconsistent with the nature and extent of his
corruption and the signs of compensatory bias
that the evidence supplies us.

  Judge Evans’ analysis displays a pragmatic
appreciation for the nature of Maloney’s
wrongdoing. Although the point may seem obvious,
one cannot conduct a proper search for
compensatory bias without having in mind the
basic nature of Maloney’s criminal conduct.
Maloney did not simply experience a momentary
ethical lapse, or commit a crime unrelated to the
job of judging. He used his position as a judge
to reap (apparently) hundreds of thousands of
dollars in bribes. Among the uncomfortably large
group of judges convicted of bribe-taking in Cook
County, he holds the distinction of being the
only one in the United States proven to have
accepted bribes in murder cases. See Retired
Judge Sentenced, National Law Journal, Aug. 1,
1994, at A8. The utter contempt that his pattern
of crimes shows for the duties of his office, and
in particular for the concept of judicial
impartiality, wholly eliminates any presumption
that he was a fair and decent judge when not
pocketing money. See Bracy, 520 U.S. at 909, 117
S. Ct. at 1799. This in turn deprives the State
of the benefit of the doubt with respect to
evidence that raises questions about the
propriety of Judge Maloney’s actions in trying
Bracy and Collins. So, as we consider what the
record tells us about Maloney’s mindset, we
cannot resort to any tie-breaking presumption of
impartiality in the face of evidence that is
ambiguous or permits conflicting inferences about
Maloney’s motives.

  By contrast, Judge Posner’s analysis treats a
judge’s corruption as but a variant of stock
ownership: So long as a judge did not acquire a
concrete interest in the acquittal or conviction
of the defendant by pocketing a bribe, there is
no reason to think that his judgment was tainted.
Instead, the petitioners must supply us with a
reason to doubt the judge’s impartiality. E.g.,
Cartalino, 122 F.3d at 10. Actually, Judge
Maloney’s pattern of bribes gives us a compelling
reason to doubt his ability to be a fair,
competent judge even in cases where no money
changed hands. A judge cannot repudiate his oath
of office any more completely than by accepting
a bribe; fixing a case is the antithesis of
judging. The notion that even a corrupt judge
will give the parties a fair trial--unless the
proof affirmatively shows otherwise-- necessarily
hinges upon some sort of presumption of
impartiality. In resorting to that aid, however,
Judge Posner, who finds so many other points
resolved by the Supreme Court’s opinion in this
case, overlooks one about which the Court could
not have been more clear: The presumption of
impartiality that normally attaches to a judge’s
conduct has been "soundly rebutted" in this case
by the facts underlying Maloney’s conviction. 520
U.S. at 909, 117 S. Ct. at 1793. We no longer
have that crutch to lean upon.

  With the presumption of impartiality having been
removed from the case, Judge Evans is correct to
recognize that Maloney’s bias may be established
indirectly. See ante at 8-9. The evidence
available to Bracy and Collins simply does not
afford them or us a glimpse into Maloney’s mind.
Maloney will not admit to his bribe-taking, let
alone discuss what his motives were when he was
not bribed. If there are others with whom he may
have discussed his mindset, they are either
unknown or unwilling to reveal what they know. So
we must look for less direct clues as to the
presence or absence of bias elsewhere in the
evidence.

  By insisting upon direct proof of bias, Judge
Posner would deny relief whenever the parties
lack an unobstructed view into the corrupt
judge’s mind--even if the evidence otherwise
suggests that bias may, in fact, have been
present. The proof of bias that he demands is
proof that in virtually all cases must come from
the corrupt judge himself. The judge must either
(1) confess to the bias under oath, (2) admit the
bias at some point to a co-conspirator, who later
proves willing to repeat the admission under
oath,/1 or (3) render a pattern of rulings so
blatantly favoring the prosecution that they
cannot be explained by any hypothesis other than
bias. Each of these direct forms of proof is
unavailable here: Maloney will not admit to
having taken a single bribe, let alone to any
form of bias; his former partners in crime have
either invoked the Fifth Amendment or pleaded
ignorance of his motives; and although his
rulings consistently favored the State, as Judge
Posner himself points out, ante at 34, they are
not so blatantly suspect as to bespeak bias in
and of themselves. (The sole alternative means of
establishing bias that Judge Posner cites--a
Cartalino-like scenario in which one defendant
bribes the judge both to acquit him and to
convict his co-defendant--obviously will not be
available in a case like this one, where no money
has changed hands.) But the lack of the kind of
proof that Judge Posner envisions by no means
rules out the possibility that the corrupt judge
was, in fact, indulging in compensatory bias. All
that the judge need do to avoid creating the kind
of record that Judge Posner envisions is to keep
his mouth shut about his compensatory bias and to
refrain from making bizarre rulings. Insistence
upon direct proof would consequently foreclose
relief in cases involving corrupt but careful
judges who are unwilling to expose their own
compensatory bias.

  I therefore agree with Judge Evans that the
search for proof of compensatory bias must
include indirect, as well as direct, signs of
such bias, and that the record in this case
supplies us with adequate signs that such bias
was at work during the capital phase of Bracy’s
and Collins’ trial. His analysis appropriately
recognizes that a corrupt judge may subvert the
trial process not simply by offering affirmative
assistance to one party or the other, but also by
failing to preserve the balance between the
litigants and to ensure that a criminal
defendant’s rights are not neglected. See ante at
15-22. He is also correct to point out that the
lack of a neutral arbiter arguably poses the
greatest threat to the defendant’s rights at the
penalty phase of a capital trial, when the
inquiry turns from the relatively straightforward
determination of whether or not the defendant
committed a crime to the question of whether or
not he should die for that crime, a profound
determination that turns on a largely subjective
assessment of his entire criminal history, the
psycho-social context of that history, the
effects his crimes have had upon others, his
prospects for reform and redemption, and so
forth. See id. at 15-16. Against that backdrop,
I believe Judge Evans rightly concludes, as did
Judge Hart, that bias may be inferred from Judge
Maloney’s handling of the penalty phase of the
Bracy-Collins trial. The flaws that Judge Evans
seizes upon might not, in the abstract, seem like
compelling enough proof to overcome the
presumption of impartiality that normally
attaches to a judge’s rulings. But, again, that
presumption is gone from this case. Our analysis
must therefore proceed without attributing to
Maloney any of the goodwill we would assign to
the presumptively honest judge. The rulings and
remarks that Judge Evans cites--in particular,
Maloney’s decisions to allow testimony regarding
the Arizona murders into evidence, to deny a
severance, and to deny a continuance, all without
any articulated reasons, and his (unsuccessful)
effort to discourage Bracy’s lawyer from making
a closing argument (when the jury’s choice of
penalty was between life and death!)--reasonably
suggest that Maloney had abandoned his role as a
neutral arbiter. If there are other facts that
tilt the scales in the opposite direction--which
affirmatively show, in other words, that Maloney
was attempting to give the defense a fair penalty
hearing--neither the State nor Judge Posner has
cited them. In that context, I agree with Judge
Evans that Judge Hart did not clearly err in
finding that the penalty phase of the trial
reflects compensatory bias on Maloney’s part.

  But I think that Judge Posner is right to
question the plausibility of inferring that
Maloney was biased as to the capital phase of the
trial but not the guilt/innocence phase. As Judge
Posner points out, Judge Maloney’s rulings at the
guilt phase of the trial consistently favored the
prosecution, just as they did at the penalty
phase. Ante at 34. I would add that a number of
the rulings at the guilt phase had significant
effects on the course of the trial. Not the least
among these rulings was Maloney’s decision (which
he later sought to pin on Bracy, see ante at 13)
to appoint McDonnell as Bracy’s lawyer. Few
decisions are more important than the choice of
one’s trial counsel. However poor an attorney’s
skills, level of preparedness, and tactical
decisions appear to be in retrospect, the range
of representation deemed constitutionally
adequate is wide. Strickland v. Washington, 466
U.S. 668, 689, 104 S. Ct. 2052, 2065 (1984). Even
wholly inexcusable lapses by an attorney may be
deemed harmless once his client has been
convicted. See id. at 687, 104 S. Ct. at 2064 (to
succeed on ineffectiveness claim, defendant must
show not only that his counsel’s performance was
deficient, but that the attorney’s errors
prejudiced the defense). With two felony
convictions to his name, an evident ethical
impairment, and connections to organized crime,
McDonnell was hardly an obvious candidate for a
court appointment to represent someone charged
with a capital offense--unless, perhaps, the
appointing judge was uninterested (or worse,
malevolently interested) in the quality of
representation that the defendant received.
McDonnell’s announcement, just three weeks after
he was appointed, that he was ready for trial
further raises an already-elevated eyebrow.
McDonnell’s failure at the capital phase of the
trial to present a scintilla of mitigating
evidence that would warrant imprisonment rather
than execution, and his failure to make any
argument against imposition of the death penalty
other than a generalized attack upon capital
punishment, see Hall v. Washington, 106 F.3d 742,
750 (7th Cir.), cert. denied, 522 U.S. 907, 118 S.
Ct. 264 (1997), raise obvious doubts about his
overall effectiveness and--given his shady
credentials--Maloney’s decision to appoint him in
the first place. The rationale for confining the
finding of bias to the capital phase of the trial
therefore remains elusive. The fact that a
defendant’s life is at stake in a capital
proceeding may well heighten the judge’s duty to
maintain the balance between the parties and
magnify the harm resulting from his failure to do
so; however, the judge enjoys no less discretion
in a non-capital (or for that matter, a non-
criminal) proceeding and has no less of an
ability to exercise that discretion in such a way
as to steer the outcome to a particular
result./2

  Indeed, the extent of a judge’s discretion, and
the cloak that discretion provides for a judge’s
bias, are matters that Judges Posner and Evans
both underestimate. Neither finds a reason to
question any of Judge Maloney’s rulings at the
guilt/innocence phase of the trial, and although
Judge Evans questions a number of Maloney’s
rulings at the penalty phase, Judge Posner finds
even those rulings perfectly defensible. But
discretionary rulings are an unreliable barometer
for the bias of the trial judge. Such rulings can
rarely be labeled "correct" or "incorrect" in the
sense that there is only one proper ruling in a
particular set of circumstances. The very concept
of discretion assumes that any number of answers
to a question are possible, and that the answer
is best left to the assessment of the judge.
Abuse of discretion typically is found not when
the judge fails to render the "right" ruling, but
when he or she applies the wrong legal standard,
ignores crucial facts, or rests his ruling on
irrelevant or inappropriate factors. E.g., Ty,
Inc. v. Jones Group, Inc., 237 F.3d 891, 896 (7th
Cir. 2001); United States v. Tingle, 183 F.3d
719, 728 (7th Cir.), cert. denied, 528 U.S. 1048,
120 S. Ct. 584 (1999); United States v. McDowell,
117 F.3d 974, 978 n.4 (7th Cir. 1997). Indeed, so
long as they are applying the right law and
considering the relevant factors, two judges may
confront the same problem and render different
rulings without either one of them having abused
their discretion or committed clear error. United
States v. Williams, 81 F.3d 1434, 1437 (7th Cir.
1996), cert. denied, 522 U.S. 1006, 118 S. Ct.
582 (1997), and cert. denied sub nom. Bates v.
United States, 522 U.S. 1062, 118 S. Ct. 723
(1998). "That possibility is implicit in the
concept of a discretionary judgment." Id., citing
Rice v. Nova Biomedical Corp., 38 F.3d 909, 918
(7th Cir. 1994), cert. denied, 514 U.S. 1111, 115
S. Ct. 1964 (1995). Rulings that on their face
are justifiable therefore tell us little about
whether compensatory bias was at work in the
judge’s decision-making. Likewise, a judge may
abuse his discretion, may even commit a
"veritable avalanche of errors," United States v.
Santos, 201 F.3d 953, 965 (7th Cir. 2000), without
there being reason to suspect that bias was at
work. Judges make mistakes, period. Bias, when it
is at work, will not necessarily announce itself
in either the judge’s ruling or his rationale.
See Vasquez v. Hillery, 474 U.S. 254, 263, 106 S.
Ct. 617, 623 (1986) ("when the trial judge is
discovered to have had some basis for rendering
a biased judgment, his actual motivations are
hidden from review . . . .") (emphasis supplied).
A corrupt judge who wishes to stack the deck
against a party may cite plausible reasons for
his rulings and yet make his decisions for
illicit purposes; it is easy to imagine that a
judge with Maloney’s experience would not find it
difficult to cloak his bias, if any, in this way.
That Maloney’s rulings at either phase of the
trial therefore seem appropriate--that is, within
the range of discretion--tells us little about
whether those rulings were infected by
compensatory bias. The only objective observation
we can make with certainty is that they
consistently favored the State.

  The inherent difficulty of piercing a judge’s
exercise of discretion is what has led me to
conclude that the temptation-to-bias framework is
a superior means of analyzing the petitioners’
claim. Cases such as Tumey v. Ohio, 273 U.S. 510,
532, 47 S. Ct. 437, 444 (1927), In re Murchison,
349 U.S. 133, 136-37, 75 S. Ct. 623, 625-26
(1955), and Aetna Life Ins. Co. v. Lavoie, 475
U.S. 813, 821-25, 106 S. Ct. 1580, 1585-87
(1986), recognize that circumstances which give
the judge a stake in the outcome of a cause
present her with a temptation to favor one party
or the other. These cases disavow any inquiry
into whether the judge in fact yielded to the
temptation. To the contrary, in each case, the
Supreme Court acknowledged the possibility that
the judge in question was not, in fact, biased.
Id. at 825, 106 S. Ct. at 1587; Murchison, 349
U.S. at 136, 75 S. Ct. at 625; see also id. at
140, 75 S. Ct. at 627 (Reed, J., dissenting);
Tumey, 273 U.S. at 532, 47 S. Ct. at 444.
Instead, the Court found the mere possibility
that the judge might have yielded to the
temptation sufficient to vacate the judgment:

[T]he 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 injustice. 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.

Ibid. (emphasis supplied); see also Aetna Life,
475 U.S. 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.’") (quoting
Murchison, 349 U.S. at 136, 75 S. Ct. at 625);
Murchison, 349 U.S. at 136, 75 S. Ct. at 625
("our system of law has always endeavored to
prevent even the probability of unfairness").
Implicit in the Court’s rationale lies the
recognition that we cannot always know, in
hindsight, whether a judge confronted with such
an incentive was or was not impartial. Vasquez,
474 U.S. at 263, 106 S. Ct. at 623 (citing Tumey,
273 U.S. at 535, 47 S. Ct. at 445). Given the
inability to rule out bias in fact, the
possibility of such bias lingers, undermining
confidence in the judgment. Ibid.; see also
Murchison, 349 U.S. at 136, 75 S. Ct. at 625 ("to
perform its high function in the best way,
’justice must satisfy the appearance of
justice’") (quoting Offutt v. United States, 348
U.S. 11, 14, 75 S. Ct. 11, 13 (1954)). I submit
that this case, like Tumey, Murchison, and Aetna
Life, presents a temptation to bias, and whether
or not Judge Maloney was actually motivated by
that bias cannot really be known. See Vasquez,
474 U.S. at 263, 106 S. Ct. at 623. True, the
case does not involve a case-specific, purely
financial bias, as Judge Posner points out. Ante
at 27. Neither, I would add, does it involve an
honest judge making a good-faith effort to abide
by his oath of office. Maloney’s pattern of
bribe-taking, coupled with the possible
temptation to favor the State in cases where no
bribe was tendered--in order to conceal his
corruption and encourage defendants to bribe him-
-promotes lingering doubts as to the validity of
the judgments over which he presided. The
discomfort is evident in the divided nature of
the court’s opinion today.

  Of course, Judge Posner remains skeptical that
Maloney had any incentive to lean in favor of the
State. See ante at 25-26. Again he suggests that
a corrupt judge might be just as likely to hide
his bribe-taking by cultivating a pro-defendant
reputation, so that an acquittal or other ruling
paid for by the defense looks less suspect. Id.
We know, however, that Maloney did not adopt a
consistent defense leaning in order to camouflage
his corruption--Maloney long had a reputation for
being a tough, State-oriented judge. Yet, we also
know that Maloney was quite concerned about
exposure, and was willing to take even
precipitous steps to hide his bribe-taking. Thus,
he returned the $10,000 bribe he had been given
to acquit Hawkins and Fields and then convicted
them; and in Titone, he went so far as to keep
the $10,000 bribe but convicted the defendant
anyway. Judge Posner insists that "[n]either case
had anything to do with compensatory bias," ante
at 30, but this ignores the findings that the
state courts rendered in vacating the convictions
in those cases. The Illinois Supreme Court found
that Hawkins and Fields were entitled to a new
trial because Maloney had been motivated to
convict them in order to deflect suspicion from
himself. People v. Hawkins, 690 N.E.2d 999, 1004
(Ill. 1998) ("[Maloney] wanted to insure that he
did not lose his judicial post and salary as a
result of criminal indictment, and therefore was
motivated to return a verdict that would not
spark the suspicions of authorities"). Similarly,
in ordering a new trial for Titone, Judge
Strayhorn implicitly but unmistakably
acknowledged that Maloney had an incentive to
convict Titone in order to camouflage his
corruption. R. 239, People v. Titone, No. 83 C
127, Post-conviction Tr. at 12 ("Dino Titone did
not receive the kind of fair, impartial trial
before a fair, unbiased, impartial judge that his
constitutional rights as a citizen required.").
True, neither court found that Maloney yielded to
that incentive, for the direct proof necessary to
establish actual, compensatory bias was lacking
there just as it is here. Theoretically, it was
possible that Maloney gave Hawkins, Fields, and
Titone fair trials notwithstanding the bribes
that had been tendered. But the incentive to
convict them in order to serve Maloney’s interest
in avoiding detection was present, and the
possibility that he gave in to that incentive was
real. It is also true that in this case, unlike
Hawkins and Titone, there was no bribe tendered
that might have attracted the eye of government
investigators. Yet William Swano’s testimony
suggests that Maloney practiced compensatory bias
precisely in cases like this one, where no bribe
was tendered, in order to cultivate bribes from
the defense bar. Recall that Swano, who had
bribed Maloney in previous cases, withheld a
bribe in the Davis case because he thought he had
a strong case on the merits. To Swano’s surprise,
Maloney convicted his client. Swano interpreted
the conviction as a message from Maloney that
payment was required in order to obtain an
acquittal in his courtroom. Maloney’s bagman,
Robert McGee, appears to have confirmed the
accuracy of that construction when he and Swano
met to discuss a bribe in a subsequent case.
McGee told Swano that Maloney was willing to
discuss a bribe in view of the fact that he had
"screwed" Swano in the Davis case. R. 241, United
States v. Maloney & McGee, No. 91 CR 477, Trial
Tr. at 2568. Collectively, this evidence
demonstrates that Judge Maloney was faced with a
temptation to favor the State in some cases in
order to both promote and hide his bribe-taking
in others, and that he yielded to that temptation
on more than one occasion. Particularly in view
of the evidence that Judge Evans has cited
suggesting that Maloney abandoned neutrality in
this particular case, there is every reason to
think that Maloney confronted the same temptation
here. That is more than enough, under Tumey,
Murchison, and Aetna Life, to entitle Bracy and
Collins to relief.

  Whether the Supreme Court will adopt or reject
the temptation-to-bias framework for judicial-
corruption cases remains to be seen. Judge Posner
may be a superior reader of tea leaves, but I can
find no actual holding in the Court’s opinion in
this case to the effect that Tumey and its
progeny are inapposite and that actual bias
invariably must be shown. Yes, the Court granted
the petitioners the right to discovery so that
they might establish actual bias, but in
confining the scope of the case to discovery, the
Court declined to consider whether proof of
actual bias is the only means to relief in a case
of judicial corruption. See Bracy v. Gramley, 519
U.S. 1074, 117 S. Ct. 726 (1997) (granting
certiorari in part).

  For all of these reasons, I believe that we
must vacate the petitioners’ convictions as well
as their sentences. The temptation for Maloney to
favor the State as a means of hiding and
promoting his corruption was present in this case
as we know it was in other cases, and there are
signs-- including the appointment of a felon to
represent Bracy, the refusal to continue the
penalty hearing notwithstanding the belated
disclosure that the State intended to introduce
additional murders as an aggravating factor, and
the effort to discourage Bracy’s counsel from
making a closing argument at the penalty hearing-
-that suggest Maloney may well have yielded to
the temptation. More direct proof of bias is
simply unavailable without the cooperation of
Maloney or his co-conspirators, none of whom has
proven willing or able to provide it.

  Although some of my colleagues fear that we
will be compounding the wrong that Maloney
committed by granting a new trial to petitioners
who did not bribe him, I submit that the opposite
is true. The right to trial before an impartial
judge means nothing if it is not a right that we
are willing to enforce. It is hard to see why a
new trial is warranted when an honest judge is
faced with a financial temptation to favor one
party or the other--although it is a temptation
he might in fact have resisted (see Tumey,
Murchison, and Aetna Life)--but not when a
corrupt judge is presented with a penal as well
as a financial incentive to favor a party. It is
not enough for us to decry Maloney’s actions as
contemptible, appalling, and depraved. Those
words ring hollow when, at the same time we utter
them, we deem this contemptible, appalling, and
depraved man a constitutionally adequate
adjudicator. Due process means something, and in
my view it means something more than trial and
the infliction of the ultimate punishment before
the likes of a judicial racketeer.

FOOTNOTES

/1 This is the only way that I can see to establish
a conspiracy to practice compensatory bias in one
or more cases without the corrupt judge’s own
testimony. See ante at 27.

/2 I would note that Judge Maloney’s handling of
closing arguments at the guilt/innocence phase of
the trial, as well as the capital phase, arguably
supports an inference of compensatory bias at
work. As the State’s first closing argument built
to a conclusion asking the jury to convict the
defendants, the prosecutor turned his attention
from Collins (whom he had called "a[s] vicious
and cold and cal[c]ulating a killer as the good
Lord ever created," R. 23-5 at 1300) and Bracy
(just "as bad," id. at 1301) to their attorneys.
After noting that it was his duty and that of his
colleague to represent the State, the prosecutor
continued:
It is the responsibility of Mr. Frazin (Collins’
counsel) to represent this killer, and it is the
responsibility of Mr. McDonnell (Bracy’s
attorney) to represent this killer.

Id. at 1335. An objection was overruled. Id. At
that point, the prosecutor felt free to commence
an attack upon the defense counsels’ tactics,
encouraging the jury to "think about the facts
that these two lawyers get up here and mimic and
mock and demean you," id. at 1338, and suggesting
that either McDonnell or Frazin--he wasn’t sure
which--"is trying to hoodwink you," id. at 1354.

  Having been given such free rein at the guilt
phase of the trial, it comes as little surprise
that during closing arguments at the penalty
phase, the prosecution argued not only that
McDonnell’s criticism of capital punishment was
"a slap in every veteran’s face," R. 23-6 at
1646, as Judge Evans has pointed out, but also
that Bracy and Collins themselves would think a
sentence of death fair and appropriate:

I will tell you one thing, ladies and gentlemen
of this jury, if you come back with a decision
that the death penalty should be imposed, I
guarantee you that Roger Collins and William
Bracey [sic] won’t feel it is an unfair decision.

Id. at 1654. "Objection to that," complained
McDonnell. Id. "I think that is improper," echoed
Frazin. Id. "Objection overruled," was Judge
Maloney’s response. Id.
