                                     2016 IL App (1st) 133492

                                                                               SIXTH DIVISION
                                                                   Opinion Filed: April 29, 2016

                                 No. 1-13-3492
______________________________________________________________________________

                                             IN THE

                                 APPELLATE COURT OF ILLINOIS

                                        FIRST DISTRICT


 THE PEOPLE OF THE STATE OF ILLINOIS,          )     Appeal from the
                                               )     Circuit Court of
       Plaintiff-Appellee,                     )     Cook County
                                               )
 v.                                            )     No. 83 C 127
                                               )
 ROBERT GACHO,                                 )     Honorable
                                               )     Diane Cannon,
       Defendant-Appellant.                    )     Judge, Presiding.
______________________________________________________________________________

       JUSTICE HOFFMAN delivered the judgment of the court, with opinion.
       Presiding Justice Rochford concurred in the judgment and opinion.
       Justice Delort dissented, with opinion.

                                            OPINION

¶1     The defendant, Robert Gacho, appeals from the circuit court's denial of his petition

brought pursuant to the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West

2008)), following an evidentiary hearing.   He argues that the denial of his petition is manifestly

erroneous as the evidence presented established both that he was denied a fair trial due to the

corruption of the trial judge and that he was denied effective assistance of counsel when his trial

attorney labored under a conflict of interest.    For the reasons which follow, we affirm the

judgment of the circuit court.
No. 1-13-3492


¶2        The defendant, along with Dino Titone and Joseph Sorrentino, was charged with multiple

counts of aggravated kidnapping, armed robbery, and the murders of Tullio Infelise and Aldo

Fratto.     The defendant's trial was severed from that of his co-defendants.   The defendant and

Titone were subsequently tried simultaneously before a single judge, Thomas Maloney, with the

defendant electing a jury trial and Titone choosing a bench trial.        The jury that found the

defendant guilty on all counts and, finding no mitigating factors, imposed a sentence of death for

the murders of Infelise and Fratto.   On direct appeal, the supreme court affirmed the defendant's

convictions but vacated his death sentence and ordered that he be resentenced.           People v.

Gacho, 122 Ill. 2d 221, 264 (1988).          On remand, the defendant was sentenced to life

imprisonment.

¶3        The evidence supporting the defendant's convictions is detailed in the supreme court's

decision on his direct appeal.      See Gacho, 122 Ill. 2d at 229-32.      Consequently, we will

recount only those facts necessary to place the defendant's post-conviction claims in context.

¶4        On February 15, 1991, the defendant filed a pro se post-conviction petition, asserting,

among other claims, that Maloney's corruption deprived him of a fair trial and that he was denied

effective assistance of counsel when his trial attorney labored under a conflict of interest by

reason of his having represented a relative of the victim, Tullio Infelise.     On November 10,

1997, following the appointment of post-conviction counsel, an amended post-conviction

petition was filed on behalf of the defendant which stated that it replaced all of the claims in the

defendant's initial petition. As grounds for relief, the amended petition also raised, inter alia,

the corruption of the trial judge and a conflict of interest on the part of the defendant's trial

attorney.

¶5        On April 19, 1999, the defendant's post-conviction counsel withdrew and new counsel

was appointed.         The defendant's new post-conviction counsel filed a supplemental

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post-conviction petition on July 30, 2008, and informed the court that the pleading was intended

to supplement the defendant's original pro se petition. The supplemental petition noted that

Maloney had been convicted of accepting bribes in exchange for promises to "fix" trials.       It also

alleged that Titone, the co-defendant whose bench trial was conducted simultaneously with the

defendant's jury trial, had paid Maloney to find him not guilty.   The claim was supported by the

affidavit of Titone's father who described a scheme pursuant to which his son's attorney would

give money to an intermediary, who would then pass the money to Maloney.                The affidavit

asserted that Titone's attorney told Titone's father that, "as long as Maloney got two out of three"

of the co-defendants, "it would be enough"; that is, "as long as [the defendant and Sorrentino]

were found guilty, [Maloney] could get away with letting [Titone] go free."     However, Maloney

ultimately found Titone guilty and sentenced him to death.         In his affidavit, Titone's father

speculated that either his son's attorney never paid the $10,000 bribe or Maloney reneged on the

deal for fear of being discovered. The supplemental petition asserted that Titone had been

granted a new trial based upon evidence that Maloney had been paid $10,000 to find him not

guilty.   The supplemental petition was also supported by the defendant's affidavit, asserting that

his pretrial attorney, Daniel Radakovich, had suggested that he also bribe Maloney, but that he

was unable to raise the funds to do so.     In addition, the affidavits of the defendant's mother,

Edith Rhoades, and his aunt, Margaret Shur, were attached to the supplemental petition.        In her

affidavit, Rhoades averred that, on the date that the defendant was arraigned, Radakovich told

her that, if she could raise $60,000 to give to the judge, the charges against the defendant would

be reduced. The affidavit also states that Rhoades subsequently informed Radakovich that she

was unable to raise $60,000.    In her affidavit, Shur averred that the defendant wrote her a letter

stating that for $60,000 he could "walk from the case," and that during a later conversation with

the defendant, the subject of a $60,000 bribe to be paid to the judge was brought up.

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No. 1-13-3492


¶6     On February 4, 2009, the State filed a motion to dismiss the defendant's supplemental

post-conviction petition.   On May 29, 2009, the circuit court granted the State's motion and

dismissed the defendant's petition without an evidentiary hearing.    The defendant appealed and

this court affirmed the dismissal of one of the claims raised in the supplemental petition, but

reversed the dismissal of the defendant's claim that he was denied a fair trial as the result of

judicial corruption and reversed the dismissal of his ineffective assistance of counsel claim based

upon his attorney's alleged conflict of interest.    We remanded the matter back to the circuit

court with instructions to conduct an evidentiary hearing on the two remaining claims to

determine if either entitled the defendant to a new trial.   People v. Gacho, 2012 IL App (1st)

091675 (Gacho I), ¶ 33.

¶7     On remand, the circuit court held the evidentiary hearing as directed.       The defendant

testified that, in January 1983, one of his friends, Bill Benham, hired attorneys Jerry Kruz and

Radakovich to represent him in the underlying case which was pending before Maloney.

According to the defendant, Radakovich told him that Maloney could be bribed, and that for

$60,000, or the equivalent value of narcotics, he would be acquitted.    The defendant stated that

he told Radakovich to speak to his mother about raising the money.              According to the

defendant, every time they spoke, Radakovich suggested that he pay Maloney, and that when he

was unable to raise the money, Radakovich seemed disinterested in his case.         The defendant

testified that he spoke to Benham about hiring a new attorney, and that shortly thereafter, his

aunt hired Robert McDonnell to represent him.

¶8     The defendant initially testified that, just before his trial commenced, McDonnell

informed him that, in the past, he had represented Tullio Infelise or Rosario Infelise.   He then

testified that McDonnell told him that he had represented the victim, Tullio Infelise, on some

legal matter "a long time ago," but that McDonnell could not remember what that matter was.

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No. 1-13-3492


When cross examined, the defendant admitted that he had never alleged in any of his

post-conviction petitions that McDonnell had represented the victim, Tullio Infelise; rather, he

only alleged that McDonnell had represented a member of Tullio Infelise's family.          Also on

cross-examination, the defendant testified that he first learned that McDonnell was representing

Rosario Infelise after he was convicted. Certified copies of records from the criminal case in

which McDonnell represented Rosario Infelise revealed that McDonnell represented Rosario

Infelise from January 1984, through August 15, 1984. The record reflects that, on September

19, 1984, before the defendant's trial began, an assistant State's Attorney informed the court that,

in the past, McDonnell had represented a member of Tullio Infelise's family.        Thereupon, the

following exchange took place between the trial judge, Maloney, and the defendant:

                "THE COURT:       Mr. Gacho, are you aware of all of these circumstances that are

       being referred to and discussed now?

                DEFENDANT:        Yes Sir.

                THE COURT:      And have you discussed it with your attorney?

                DEFENDANT:        Yes.

                THE COURT:       And you have no objection to whatever has occurred in the past

       regarding Mr. McDonnell's representation of a family member of one of the victims?

                DEFENDANT:        No, I don't.

                THE COURT:      And you wish him to continue as your lawyer, is that correct?

                DEFENDANT:        Yes."

¶9     Ronald Barrow, who was serving a life sentence for murder at the Menard Correctional

Center, testified on behalf of the defendant at the evidentiary hearing.   According to Barrow, in

May 1995, while he was incarcerated in the Cook County jail waiting to testify in an unrelated

case, he spoke with Titone who told him that "he felt it was bad Karma when the judge double

                                                 -5-
No. 1-13-3492


crossed him on a deal he made to slam Bob Gacho and convict him."           According to Barrow,

Titone told him that his father had paid Maloney $10,000 to find him not guilty.        When, on

cross-examination, Barrow was shown the Cook County sheriff's office booking card for the

Cook County jail, he admitted that it failed to reflect that Titone was in the jail in May 1995.

The records did reflect that Titone was in the Cook County jail from October 15, 1997, through

October 20, 1998.   However, Barrow was not in the Cook County jail after May 1995.

¶ 10   Radakovich testified as a State's witness at the evidentiary hearing.     He stated that he

was asked to assist in the representation of the defendant by Kruz, one of his high school

classmates with whom he had tried a number of cases.       According to Radakovich, he was not

yet representing the defendant when the defendant was arraigned on January 7, 1983.

Radakovich testified that he represented the defendant from February through December 1983.

He denied:   telling the defendant that Maloney would acquit him for $60,000 or a quantity of

narcotics; having a conversation with the defendant about obtaining money to pay to Maloney; or

telling the defendant that he would be convicted if he did not obtain the money to bribe Maloney.

He also denied ever asking the defendant's mother to raise money to bribe Maloney.

Radakovich did recall two conversations with the defendant's mother during which she started

talking "very bizarrely."   Although Radakovich admitted speaking to Titone's attorney, he

denied ever hearing that Maloney had been paid to find Titone not guilty.         Contrary to the

defendant's testimony that he appeared disinterested in the defendant's case, Radakovich testified

that he filed answers to discovery and prepared a motion to suppress the statements which the

defendant made to the police.

¶ 11   After the parties rested and the attorneys made their arguments, the circuit court reversed

a prior ruling and, over the State's objection, admitted into evidence the affidavits from Titone's

father, Rhoades, and Suhr which were attached to the defendant's supplemental post-conviction

                                               -6-
No. 1-13-3492


petition.   As of the date of the hearing, all three of the affiants were dead. Following the

admission of the affidavits into evidence, the parties stipulated that, if recalled to testify,

Radakovich would testify that he did not represent the defendant at the time of his arraignment

and did not speak to Rhoades on that day; that he never told Rhoades that, if she could raise

$60,000 for Maloney, the charges against the defendant would be reduced; and that he never

received a phone call from Rhoades telling him that she was unable raise money to pay Maloney.

¶ 12    On October 13, 2013, the circuit court entered a written order denying the defendant's

post-conviction petition, finding that he failed to demonstrate that his constitutional rights had

been violated.   This appeal followed.

¶ 13    As an initial matter, we will briefly address and reject the defendant's assertion that our

prior decision in Gacho I, has some preclusive effect on the issues in this appeal.    In our prior

decision, we were reviewing a second-stage dismissal of a post-conviction petition and were,

therefore, required to take all of the well-pleaded facts in the petition and accompanying

affidavits as true. People v. Towns, 182 Ill. 2d 491, 503 (1998).          We made clear in our

decision that our findings were based upon the defendant's allegations being taken as true.     See

Gacho I, 2012 IL App (1st) 091675, ¶¶ 16, 19, 21-22.      In the instant appeal from the denial of

the defendant's post-conviction petition following a third-stage evidentiary hearing, the issue is

whether the defendant met his burden to prove his entitlement to post-conviction relief.    People

v. Coleman, 206 Ill. 2d 261, 277 (2002).      In addition, the standards of review are different.

We conducted a de novo review of the second-stage dismissal of the defendant's post-conviction

petition, according no deference to the findings of the trial judge.   People v. Whitfield, 217 Ill.

2d 177, 182 (2005).    In contrast, we apply a manifestly erroneous standard to our review of the

circuit court's denial the defendant's post-conviction petition following a third-stage evidentiary

hearing and accord great deference to the trial court's factual determinations.          People v.

                                               -7-
No. 1-13-3492


Childress, 191 Ill. 2d 168, 174 (2000). Stated otherwise, the findings which we made in

support of our earlier decision are not conclusive of the issues in this appeal as the defendant no

longer enjoys the presumption that the allegations in his petition and accompanying affidavits are

true.

¶ 14      For his first assignment of error, the defendant argues that the circuit court's

determination that he failed to demonstrate that he was deprived of his constitutional right to a

fair trial based upon judicial corruption is manifestly erroneous.     He asserts that the evidence

adduced at his third-stage post-conviction hearing "indisputably demonstrates there was a 'nexus'

between Maloney's practice of taking bribes from defendant's and [his] *** case, and that

Maloney had a personal interest in the outcome of [the defendant's] *** case where a $10,000

bribe tendered by co-defendant Dino Titone incorporated a scheme where both [the defendant]

*** and co-defendant Joseph Sorrentino would be found guilty in exchange for a not guilty

finding for Titone." The State argues, inter alia, that the evidence presented at the hearing

failed to demonstrate bias on the part of Maloney in the defendant's case.        We agree with the

State.

¶ 15      The Act provides a procedural mechanism pursuant to which an individual convicted of a

crime can assert that "in the proceedings which resulted in his or her conviction there was a

substantial denial of his or her rights under the Constitution of the United States or of the State of

Illinois or both." 725 ILCS 5/122-1(a)(1) (West 2008).        In non-capital cases, the Act provides

a three-stage process for the adjudication of post-conviction petitions.     People v. Boclair, 202

Ill. 2d 89, 99 (2002).   When a post-conviction petition is advanced to a third-stage evidentiary

hearing, the defendant bears the burden of showing a substantial deprivation of his constitutional

rights.    Coleman, 206 Ill. 2d at 277.     Where, as in this case, fact-finding and credibility

determinations are made by the circuit court in a third-stage proceeding, its decision will not be

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No. 1-13-3492


reversed on appeal unless it is manifestly erroneous.       Childress, 191 Ill. 2d at 174.    Manifest

error is that which is "clearly evident, plain, and indisputable." People v. Ruiz, 177 Ill. 2d 368,

384-85 (1997).

¶ 16       "A fair trial before a fair tribunal is a basic requirement of due process" (People v.

Hawkins, 181 Ill. 2d 41, 50 (1998) (citing Bracy v. Gramley, 520 U.S. 899 (1997))) as

guaranteed by the fifth and fourteenth amendments to the United States Constitution (U.S.

Const., amend. V, XIV) and Article I, section 2 of the Illinois Constitution (Ill. Const. 1970, art.

I, § 2).    "Fairness at trial requires not only the absence of actual bias but also the absence of the

probability of bias." Hawkins, 181 Ill. 2d at 50 (citing In re Murchison, 349 U.S. 133, 136

(1955)).      "To this end, no person is entitled to judge cases in which he or she has an interest in

the outcome."      Hawkins, 181 Ill. 2d at 50.

¶ 17       The defendant in this case does not contend that he bribed Maloney; rather, he contends

that his co-defendant, Titone, bribed Maloney.        However, the defendant failed to produce any

direct evidence that Maloney was, in fact, bribed by Titone.       Nevertheless, we are aware of two

decisions which make a factual reference to Titone having given Maloney a $10,000 bribe to find

him not guilty but that Maloney convicted him anyway and sentenced him to death.             See Bracy

v. Schomig, 286 F.3d 406, 412 (7th Cir. 2002) (en banc); United States ex rel Titone v. Sternes,

2003 WL 21196249 (N.D. Ill. May 15, 2003).           We will assume, therefore, for purposes of our

analysis, that Titone did bribe Maloney and that Maloney convicted Titone to deflect suspicion

from himself.

¶ 18       There is no direct evidence in the record that Maloney solicited, received, or agreed to

accept a bribe to influence his rulings in the defendant's case.          The defendant's testimony

regarding Radakovich's alleged suggestion that Maloney could be bribed was found by the trial

judge to be incredible.     Radakovich denied that he ever told the defendant that Maloney could

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No. 1-13-3492


be bribed, and the trial judge found his testimony credible.     It was the trial judge's function to

assess the credibility of the defendant and Radakovich and determine the weight to be given to

their testimony, and we will not substitute our judgment for that of the trial judge on these

matters.   People v. Domagala, 2013 IL 113688, ¶ 34.          The affidavits of Titone's father and

Shur admitted in evidence over the State's objection consist of nothing more than hearsay and

are, therefore, insufficient to support a claim under the Act. People v. Walker, 2015 IL App

(1st) 130530, ¶ 25.    Further, the assertion in Rhoades' affidavit that Radakovich told her on the

date of the defendant's arraignment that, if she could raise $60,000 to give to the judge, the

charges against the defendant would be reduced was repudiated by Radakovich who testified that

he never spoke to Rhoades about bribing Maloney and that he was not even representing the

defendant on the date of his arraignment.          The trial judge specifically found Radakovich's

testimony to be credible. Finally, Barrow's testimony concerning his alleged conversation with

Titone at the Cook County jail in May 1995, in addition to being hearsay, was, as the trial judge

found, incredible in light of the fact that there is no record of Titone having been in the Cook

County jail in May 1995.

¶ 19   Relying upon the affidavit of Titone's father, the defendant asserts that part of the scheme

pursuant to which Maloney accepted a bribe to find Titone not guilty was the requirement that he

be found guilty.      The defendant concludes, therefore, that Maloney possessed a personal,

pecuniary interest in the outcome of his trial.    There is no question that, if Maloney possessed a

pecuniary interest in the outcome of the defendant's trial, the defendant would be entitled to relief

under the Act in the form of a new trial. Tumey v. State of Ohio, 273 U.S. 510, 523 (1927); see

also Bracy, 520 U.S. at 904-905; People v. Fair, 193 Ill. 2d 256, 262-63 (2000).      However, the

defendant's entire argument in this regard rests upon the affidavit of Titone's father which

consists of nothing more than hearsay.    As to that portion of the alleged bribery scheme relating

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No. 1-13-3492


to the requirement that the defendant be found guilty, Titone's father merely related what he was

told by his son's attorney.    As noted earlier, hearsay is insufficient to support a claim under the

Act.   We are still left, however, with the question of whether the fact that Maloney accepted a

bribe to find Titone not guilty standing alone entitles the defendant to relief under the Act.

¶ 20     The fact that Maloney was bribed in some cases does not establish that he was not

impartial in others. Fair, 193 Ill. 2d at 261; People v. Titone, 151 Ill. 2d 19, 29 (1992).         The

proposition may even hold true when, as in this case, "the bribe involves a codefendant and the

two defendants are tried together, albeit one to the jury and the other to the judge." Cartalino v.

Washington, 122 F.3d 8, 10 (7th Cir. 1997).            It is merely a suspicious circumstance that

warrants further inquiry.     Cartalino, 122 F.3d at 10.    The fact that Titone bribed Maloney does

not in and of itself establish Maloney's lack of impartiality in the defendant's trial.      Cartalino,

122 F.3d at 10.

¶ 21    The defendant asserts that the "unrebutted facts establish that *** Maloney harbored a

direct compensatory bias" against him.        There is no question that the defendant would have

been deprived of due process and entitled to relief under the Act if Maloney harbored a

compensatory bias against him to camouflage the bribe which he took from Titone or his

criminal activity in other cases.     See Bracy, 520 U.S. at 906.        However, a defendant "who

alleges that his trial judge's corruption violated his right to a fair trial must establish (1) a 'nexus'

between the judge's corruption or criminal conduct in other cases and the judge's conduct at [the

defendant's] trial; and (2) actual bias resulting from the judge's extrajudicial conduct." Fair,

193 Ill. 2d at 261.   The dissent asserts that "the success of a judicial bias claim does not depend

on whether the claimant can make a showing of actual bias." In support of the proposition, the

dissent cites to Tumey, 273 U.S. 510 and Caperton vs. A.T. Massey Coal Co., Inc., 556 U.S. 868

(2009). We believe that Tumey and Caperton, are factually dissimilar from the circumstances in

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this case.   In Tumey and Caperton, the facts established a direct, personal and substantial

influence upon the judges, either by reason of a pecuniary interest in the outcome of the litigation

involved (see Tumey, 273 U.S. at 523) or because the officers of the litigant corporation had

contributed $3 million to the judge's election (see Caperton, 556 U.S. at 872-73). In such

circumstances, the Supreme Court held that no actual bias on the part of the judge need be shown

in order to establish a due process violation. When, however, the Supreme Court was faced with

a case involving a charge of compensatory bias, as asserted in this case, it found that the defendant

was entitled to discovery to establish actual judicial bias in the trial of his case. See Bracy v.

Grimley, 520 U.S. 899, 908-09 (1997). Fair also involved a claim of compensatory bias and held

that, when a defendant alleges a deprivation of due process as the result of compensatory bias on

the part of a corrupt trial judge, he must establish actual bias resulting from the judge's conduct.

Fair, 193 Ill.2d at 261; see also People v Titone, 151, Ill.2d 19, 30-31 (1992).

¶ 22   In this case, there is no competent or credible evidence in the record supporting a finding

that Maloney had a pecuniary interest in the outcome of the defendant's case, that the defendant

bribed Maloney, that Maloney solicited a bribe from the defendant, or that the bribery scheme

which existed between Maloney and the codefendant, Titone, included any requirement involving

the outcome of the defendant's trial. Distilled to its finest, the record in this case establishes only

that the defendant was tried simultaneously with a co-defendant who, as we have assumed for

purposes of analysis, bribed a corrupt trial judge; thus giving rise to a claim of compensatory bias

which we believe is governed by the holding in Fair.

¶ 23   There can be little doubt as to Maloney's pervasive corruption in other cases (see United

States v. Maloney, 71 F.3d 645 (7th Cir. 1995); Hawkins, 181 Ill. 2d at 51), but Maloney's

pattern of bribe taking (see Maloney, 71 F.3d at 649-52) cannot alone support an inference that

he engaged in compensatory bias in the defendant's case (see Bracy, 286 F.3d at 420-22).           We

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have assumed, for purposes of our analysis, that Maloney accepted a bribe from Titone; thus

establishing a connection between Maloney's criminal conduct and his status as the trial judge in

the defendant's case.    However, under the rule announced in Fair, it was still the defendant's

burden to establish that Maloney was actually biased in the defendant's own case.     Fair, 193 Ill.

2d at 261.

¶ 24   Having found no credible evidence that Maloney solicited a bribe from the defendant or

that he possessed a pecuniary interest in the outcome of the defendant's case, we have examined

the record to determine if there is any evidence of actual bias in the defendant's case.   We have

found none. The trial judge's order reflects that, although the defendant was convicted by a jury,

she also explored the possibility that Maloney compromised the defendant's rights during the

trial but "could not find one questionable ruling," and the defendant has failed to bring any

questionable ruling to this court's attention.    Further, on direct appeal, the supreme court

rejected the defendant's contentions of error at trial, finding only that the prosecutor's comments

during the death sentencing phase deprived the defendant of a fair sentencing hearing.      Gacho,

122 Ill. 2d at 255-58.   As the defendant has failed to establish any actual bias against him by

reason of either Maloney's acceptance of a bribe from his co-defendant or Maloney's pattern of

bribe taking in other cases, his claim of compensatory bias fails.

¶ 25   For the reasons stated, we conclude that the trial court's finding that the defendant failed

to meet his burden of establishing that his constitutional rights were violated by reason of

Maloney's corruption is not manifestly erroneous.

¶ 26   Finally, we address the defendant's argument that the circuit court's finding that he

waived any potential conflict of interest on the part of his trial attorney is also manifestly

erroneous.    The defendant asserts that the evidence adduced at the evidentiary hearing

established that, without his knowledge, McDonnell represented Rosario Infelise, a member of

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Tullio Infelise's family, during the pendency of his trial.     On the issue of waiver, the defendant

contends that it was the conflict created by McDonnell's past representation of Tullio Infelise

that he waived, not McDonnell's representation of Rosario Infelise.        The State argues that the

evidence of record makes plain the fact that the defendant was aware of McDonnell's

representation of Rosario Infelise and chose to waive any potential conflict arising from that

representation.   Again, we agree with the State.

¶ 27    The sixth and fourteenth amendments to the United States Constitution guarantee a

criminal defendant the right to effective assistance of counsel.       U.S. Const., amend. VI, XIV;

Cuyler v. Sullivan, 446 U.S. 335, 343-44 (1980); People v. Taylor, 237 Ill. 2d 356, 374 (2010).

The right to effective assistance of counsel includes the right to conflict-free representation.

People v. Hernandez, 231 Ill. 2d 134, 142 (2008).

¶ 28    Our supreme court has identified three situations where a per se conflict of interest exists:

(1) where defense counsel has a prior or contemporaneous association with the victim, the

prosecution, or an entity assisting the prosecution; (2) where defense counsel contemporaneously

represents a prosecution witness; and (3) where defense counsel was a former prosecutor who

had been personally involved in the prosecution of the defendant.          Hernandez, 231 Ill. 2d at

143-44.   If a per se conflict of interest is found, the defendant need not show that the conflict

actually affected his attorney's performance.             Unless the defendant waives his right to

conflict-free representation, a per se conflict of interest is grounds for automatic reversal.

Hernandez, 231 Ill. 2d at 143.

¶ 29    In this case, the defendant argues that McDonnell's representation of Rosario Infelise

constituted a per se conflict of interest.   He asserts that his waiver in open court on September

19, 1984, related to McDonnell's past representation of Tullio Infelise, the victim.     We believe

that the record belies his assertion in this regard.

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¶ 30    As noted earlier, on September 19, 1984, before the defendant's trial began, an assistant

State's Attorney brought to the court's attention the fact that McDonnell had represented "one

member of the victim's family."      The defendant acknowledged that he was aware of the

circumstances and had no objection to McDonnell's representation of "a family member of one

of the victims" and wished McDonnell to continue as his lawyer.          It strains all reason to

suggest, as the defendant now does, that the disclosure and waiver in open court on September

19, 1984, related to McDonnell's past representation of the victim himself.   In the 20-plus years

which elapsed between the filing of the defendant's pro se post-conviction petition until the

third-stage evidentiary hearing, the defendant never once alleged that McDonnell had

represented Tullio Infelise.   The very first time that he made such an allegation was when he

testified at the evidentiary hearing.     In each of the petitions, his claim was always that

McDonnell labored under a conflict of interest by reason of his having represented a member of

Tullio Infelise's family.

¶ 31    The record discloses that McDonnell represented Rosario Infelise in a criminal matter

from January 1984 through August 15, 1984.       There is no evidence in the record, save for the

defendant's testimony which the circuit court found to be incredible, that McDonnell ever

represented Rosario Infelise after August 15, 1984, that he ever represented Tullio Infelise, or

that McDonnell represented any member of Tullio Infelise's family other than Rosario Infelise.

The allegations in the defendant's supplemental post-conviction petition survived a second-stage

dismissal based upon waiver because the petition alleged that McDonnell's representation of

Rosario Infelise continued after September 19, 1984.    Gacho, 2012 IL App (1st) 091675, ¶ 30.

However, at the evidentiary hearing, the defendant produced nothing other than his own

testimony which the circuit court found to be incredible that McDonnell ever represented

Rosario Infelise after August 15, 1984.    We believe that the only reasonable inference which

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can be drawn from the credible evidence of record is that the disclosure in open court on

September 19, 1984, related to McDonnell's past representation of Rosario Infelise.

¶ 32   The defendant asserts that McDonnell's representation of Rosario Infelise amounted to a

per se conflict of interest because, as a member of Tullio Infelise's family, Rosario Infelise

would benefit from the defendant's conviction.     The record does not disclose the relationship of

Rosario Infelise to the victim Tullio Infelise, nor does the defendant explain exactly how Rosario

Infelise might have benefited from the defendant's conviction.        Nevertheless, the defendant

argues that McDonnell's contemporaneous attorney-client relationship with Rosario Infelise

while the defendant was on trial for the murder of Tullio Infelise is the type of relationship that

the supreme court has categorized as a per se conflict of interest.

¶ 33   Contrary to the defendant's argument, however, the fact that a defendant's attorney has

some tie to a person that might benefit from the defendant's conviction is not an additional or

alternate circumstance in which a per se conflict of interest may be found.         The statement

merely describes the justification for the three situations in which the supreme court has found

that a per se conflict exists. People v. Fields, 2012 IL 112438, ¶ 40.     In this case, there is no

credible evidence that McDonnell had a prior or contemporaneous association with the victim,

Tullio Infelise, nor is there any evidence which would satisfy the other circumstances which give

rise to a per se conflict of interest.   Consequently, we reject the defendant's argument that,

based upon his representation of Rosario Infelise, McDonnell labored under a per se conflict of

interest. However, even if we were to have found that McDonnell had a per se conflict of

interest by reason of his representation of Rosario Infelise, we would be unable to conclude

based upon the record before us that the circuit court's finding that the defendant waived the

conflict is manifestly erroneous.



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¶ 34   If a per se conflict of interest does not exist, a defendant may still establish a violation of

his right to effective assistance of counsel by showing an actual conflict of interest that adversely

affected his attorney's performance. People v. Morales, 209 Ill. 2d 340, 348-49 (2004).            In

order to show an actual conflict of interest, a defendant must point to some specific defect in his

attorney's strategy, tactics, or decision making attributable to a conflict.   Morales, 209 Ill. 2d at

349; People v. Spreitzer, 123 Ill. 2d 1, 18 (1988).      Suffice it to say, the defendant made no such

showing in this case.

¶ 35   Based upon the foregoing analysis, we conclude that the circuit court's finding that the

defendant "failed to demonstrate by his requisite burden that his constitutional rights were

violated" is not manifestly erroneous, and we, therefore, affirm its denial of the defendant's

petition seeking post-conviction relief.

¶ 36   Affirmed.

¶ 37   JUSTICE DELORT, dissenting:

¶ 38   The misdeeds of Judge Thomas J. Maloney are so well-documented that his name has

become synonymous with judicial corruption. See, e.g., Bracy v. Gramley, 520 U.S. 899, 901-03

(1997) (noting that Judge Maloney "has the dubious distinction of being the only Illinois judge

ever convicted of fixing a murder case"); United States v. Maloney, 71 F.3d 645, 649-52 (7th Cir.

1995). One might assume that since Judge Maloney's ignominious tenure on the bench ended 26

years ago and his criminal acts were addressed shortly thereafter, his judicial legacy has been

consigned to the dustbin of history. Yet petitioner Robert Gacho, one of the defendants convicted

by Judge Maloney, remains incarcerated. Gacho was tried in Maloney's courtroom, convicted of

murder, and sentenced to death in 1984. The Illinois Supreme Court vacated Gacho's death

sentence, but otherwise left his conviction intact. Thus, 32 years after his conviction, Gacho calls

on us to address his request for relief based on Maloney's corruption.

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¶ 39   Criminal defendants have the right to an impartial judge no matter how compelling the

evidence against them. Even the simple appearance or probability of corruption warrants relief,

for as the Supreme Court explained long ago, "to perform its high function in the best way 'justice

must satisfy the appearance of justice.' " In re Murchison, 349 U.S. 133, 136 (1955) (quoting

Offutt v. United States, 348 U.S. 11, 14 (1954)); see also People v. Hawkins, 181 Ill. 2d 41, 50

(1998) ("Fairness at trial requires not only the absence of actual bias but also the absence of the

probability of bias."). Judicial corruption undermines faith in the rule of law and dispels the

time-honored maxim that ours is "a government of laws, and not of men." Marbury v. Madison, 5

U.S. 137, 163 (1803).

¶ 40   Over 50 years ago, the United States Supreme Court stated:

                        "A fair trial in a fair tribunal is a basic requirement of due

                process. 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." In re Murchison, 349

                U.S. 133, 136 (1955).

¶ 41   Since then, the Court has held time and again that the Due Process Clause of the Fourteenth

Amendment entitles litigants to a trial before an unbiased judge who does not have a personal

interest in the outcome of the case. Caperton v. A.T. Massey Coal Co., Inc., 556 U.S. 868, 876

(2009); Bracey, 520 U.S. at 904; Withrow v. Larkin, 421 U.S. 35, 46 (1975); Ward v. Village of

Monroeville, Ohio, 409 U.S. 57, 61-62 (1972). Illinois courts have long heeded this message.

See Hawkins, 181 Ill. 2d at 50 (1998) ("A fair trial in a fair tribunal is a basic requirement of due

process.").

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¶ 42   The United States Supreme Court has also held that it is not necessary for those bringing

claims of judicial bias to show that the judge before whom their case was adjudicated was actually

biased. In Caperton, for example, the Court explained that "the Due Process Clause has been

implemented by objective standards that do not require proof of actual bias." Caperton, 556 U.S.

at 883; see also Tumey v. State of Ohio, 273 U.S. 510, 532 (1927) ("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." (Emphasis added.)). As

our supreme court explained in Hawkins, another judicial bias case revolving around Judge

Maloney, because the relevant inquiry "is limited to whether Maloney could have been tempted

not to hold the balance between the parties 'nice, clear and true' [citations], defendant[] need not

show actual bias by the trier of fact in order to be granted a new trial." Hawkins, 181 Ill. 2d at 51

(quoting Tumey, 273 U.S. at 532). "Rather, the question is whether, 'under a realistic appraisal of

psychological tendencies and human weakness,' the interest 'poses such a risk of actual bias or

prejudgment that the practice must be forbidden if the guarantee of due process is to be adequately

implemented.' " Caperton, 556 U.S. at 870 (quoting Withrow, 421 U.S. at 47).

¶ 43   Accordingly, Gacho should prevail if the circumstances show that "the probability of

actual bias on the part of the judge" was "too high to be constitutionally tolerable." Withrow, 421

U.S. at 47; Hawkins, 181 Ill. 2d at 51. It is undisputed that Judge Maloney was tainted by

corruption in the simultaneous trial of Gacho's codefendant Dino Titone. In People v. Gacho,

2012 IL App (1st) 091675 (Gacho I), this court noted that the State "concede[d] that Maloney was

corrupt, and it further concede[d] that Maloney's corruption tainted the trial" of Titone. Id. ¶ 20.

In the course of recounting Judge Maloney's actions, the Seventh Circuit Court of Appeals noted

that "a defendant named Dino Titone gave Maloney a $10,000 bribe, but Maloney convicted him

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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." Bracy v. Schomig, 286 F.3d 406, 412 (7th Cir. 2002). And in Gacho I, this court stated

"it is difficult to conceive how Maloney's misconduct in Titone's trial did not also infect the

defendant's trial. The trials were held simultaneously, concerned the same set of murders, and

were both presided over by a man the State concedes had an interest in the proceedings."

(Emphasis added.) Id. While we now must consider the case under the different standards

applicable to our review following a third-stage evidentiary hearing, this court's earlier

characterization remains no less accurate even in light of the evidence adduced at that hearing.

¶ 44    This case requires us to apply the nexus rule established by People v. Fair, 193 Ill. 2d 256

(2000), to an unusual set of facts which the Fair court had no occasion to consider. In Fair, the

court held, "a petitioner who alleges that his trial judge's corruption violated his right to a fair trial

must establish (1) a 'nexus' between the judge's corruption or criminal conduct in other cases and

the judge's conduct at petitioner's trial; and (2) actual bias resulting from the judge's extrajudicial

conduct." Id. at 261 (quoting People v. Titone, 151 Ill. 2d 19, 30-31 (1992)). The court left the

clause "at petitioner's trial" undefined, creating a gap which fails to resolve the question presented

here, because a codefendant was tried simultaneously with Gacho.

¶ 45    If the Fair nexus test is too narrowly applied, it comes into tension with the Supreme Court

authorities discussed above. Unlike the broader rule of Hawkins, which traces its lineage to

Murchison and other constitutional decisions of the United States Supreme Court (see Hawkins,

181 Ill. 2d at 50-51), the nexus test as expressed by the Illinois Supreme Court in Fair merely

traces back to Titone, 151 Ill. 2d at 30-31, which in turn cited Commonwealth of Pennsylvania v.

Shaw, 580 A.2d 1379, 1381 (Pa. Sup. Ct. 1990), which in turn cited Commonwealth of

Pennsylvania v. Hewett, 551 A.2d 1080, 1085 (Pa. Sup. Ct. 1988) and Johnson v. Johnson, 424

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No. 1-13-3492


P.2d 414 (Okla. 1967).

¶ 46   The United States Supreme Court has repeatedly stated that the success of a judicial bias

claim does not depend on whether the claimant can make a showing of actual bias. Compare

Fair, 193 Ill. 2d at 261 (proof of actual bias is necessary for successful judicial bias claim) with

Caperton, 556 U.S. at 883 (proof of actual bias is not required).

¶ 47   Under any interpretation, a correct application of the nexus test mandates reversal. The

first prong of the test requires that Gacho show a nexus between Judge Maloney's misconduct and

Gacho's case. Under the second prong, Gacho must show actual bias. Both requirements have

clearly been satisfied here where, as this court has already stated, Gacho's and Titone's trials "were

held simultaneously, concerned the same set of murders, and were both presided over by a man the

State concedes had an interest in the proceedings." (Emphasis added.) Gacho I, 2012 IL App (1st)

091675, ¶ 20. We cannot view Gacho's case in isolation, but instead acknowledge that the taint of

Titone's case fatally infected the entire proceeding.       The egg, as it were, was irreversibly

scrambled when Gacho's and Titone's cases were tried simultaneously using the same evidence

and the same witnesses, and before the same judge, as a single judicial proceeding. It cannot now

be unscrambled to sift Gacho's case out from Titone's case. Given the symbiotic relationship of

Gacho's and Titone's trials, it follows perforce that Gacho has shown both the requisite nexus and

actual bias to satisfy the nexus test, which in turn requires the reversal of his conviction. See

Tumey, 273 U.S. at 535.

¶ 48   The majority attaches some importance to the fact that Gacho has been unable to single out

any incorrect evidentiary rulings made by Judge Maloney. Supra ¶ 24. Indeed, our supreme

court reviewed the record of this trial and found no evidentiary ruling warranting reversal of

Gacho's conviction. People v. Gacho, 122 Ill. 2d 221 (1988); but see id. at 264-266 (Simon, J.,

dissenting) (stating that conviction should be reversed due to improper cross-examination of

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No. 1-13-3492


Gacho, over his objection, about the contents of a letter he wrote from prison). But the presence

or absence of "questionable" rulings by an allegedly biased judge is itself a matter of little

relevance. As the Seventh Circuit explained in Cartalino v. Washington—a case the majority

cites with approval—the relevant issue is not whether any of Judge Maloney's individual rulings in

Gacho's case were biased. Instead, we must consider "whether the judge was biased, regardless

of how his bias may have manifested itself, or failed to manifest itself." 122 F.3d 8, 10 (7th Cir.

1997). Moreover, as the Supreme Court made clear in Caperton, Gacho's ability (or inability) to

prove that Judge Maloney was actually biased against him is not a proper basis to resolve Gacho's

petition:

                       "The difficulties of inquiring into actual bias, and the fact

                that the inquiry is often a private one, simply underscore the need

                for objective rules.    Otherwise there may be no adequate

                protection against a judge who simply misreads or misapprehends

                the real motives at work in deciding the case.    The judge's own

                inquiry into actual bias, then, is not one that the law can easily

                superintend or review, though actual bias, if disclosed, no doubt

                would be grounds for appropriate relief.      In lieu of exclusive

                reliance on that personal inquiry, or on appellate review of the

                judge's determination respecting actual bias, the Due Process

                Clause has been implemented by objective standards that do not

                require proof of actual bias."    [Citations.]   In defining these

                standards the Court has asked whether, 'under a realistic appraisal

                of psychological tendencies and human weakness,' the interest

                'poses such a risk of actual bias or prejudgment that the practice

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No. 1-13-3492


                must be forbidden if the guarantee of due process is to be

                adequately implemented.' "       Caperton, 556 U.S. at 883-84

                (quoting Withrow, 421 U.S. at 47).

¶ 49   As demonstrated above, applying the nexus test too narrowly under the unique facts of this

case is at odds with established United States Supreme Court precedent. It also creates an

incongruous and constitutionally infirm result. Gacho's codefendant, who actually bribed Judge

Maloney, received a new trial because he "did not receive the kind of a fair, impartial trial before a

fair, unbiased, impartial judge that his constitutional right as a citizen required." Gacho, in

contrast, has not received a new trial. See Ian Ayres, The Twin Faces of Judicial Corruption:

Extortion and Bribery, 74 Denv. U.L. Rev. 1231, 1252-53 (1997) (quoting People v. Titone, 83 C

127 (Cir. Ct. Cook County), Report of Proceedings heard before the Honorable Earl E. Strayhorn

at 12 (July 25, 1997)).

¶ 50   I agree with Judge Ilana Diamond Rovner of the Seventh Circuit Court of Appeals who so

eloquently stated in another case involving Judge Maloney: "If due process means anything, I

think we must assume that Maloney's corruption pervaded his work as a judge. The Supreme

Court could not have put it more clearly: '[W]hen the trial judge is discovered to have had some

basis for rendering a biased judgment, his actual motivations are hidden from review, and we must

presume that the process was impaired.' " (Alteration in the original.) Bracy v. Gramley, 81 F.

3d 684, 699-700 (7th Cir. 1996) (Rovner, J., dissenting) (quoting Vasquez v. Hillery, 474 U.S. 254,

263 (1986)), rev'd, 520 U.S. 899 (1997); see also Cartalino, 122 F. 3d at 11 (Rovner, J., specially

concurring).

¶ 51   For these reasons, I must respectfully dissent from the majority's resolution of Gacho's Due

Process claim. I would reverse the judgment of the trial court and remand for a new trial. I join

in the portion of the majority opinion affirming the trial court's denial of relief as to Gacho's

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ineffective assistance of counsel claim. See supra ¶¶ 25-34.




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