In the
United States Court of Appeals
For the Seventh Circuit

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

William Bracy and Roger Collins,

Petitioners-Appellants, Cross-Appellees,

v.

James Schomig and Roger Cowan,

Respondents-Appellees, Cross-Appellants.



Appeals from the United States District Court
for the Northern District of Illinois, Eastern
Division.
Nos. 93 C 5282, 93 C 5328--William T. Hart,
Judge.


Argued January 25, 2001--Decided April 18,
2001




  Before Posner, Manion, and Rovner, Circuit
Judges.

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

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

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

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

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

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

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

during the same time petitioners’ case
was pending, other cases were pending in
which Maloney took bribes, particularly
the close in time Chow and Rosario cases.
Before and after this time, Maloney was
engaged in a pattern of receiving money.
Based on the evidence in the record, it
is a possible and reasonable inference in
this case that Thomas Maloney was
motivated, at least in part, to maintain
a prosecution-oriented attitude and to
make pro-prosecution rulings by a desire
to deflect suspicion from cases in which
he accepted bribes. Other documented
instances of Maloney so acting to deflect
suspicion from his corrupt conduct are
reported in the Hawkins and Titone cases.

  This finding has no factual support; it
is merely conjecture. It was natural for
Maloney, at his sentencing for accepting
bribes from criminal defendants,
including defendants in murder cases, to
point to a case before him in which the
murderers had been convicted and
sentenced to death, though the jury, not
he, had convicted them and had made a
recommendation for death that bound him.
It does not follow that when he presided
at the defendants’ trial he was thinking
of how their convictions and sentences
might stave off future accusations of
bribe taking, or even how they might
dispel suspicions of it if he was even
aware at that time, early in his bribe-
taking career, that there were any
suspicions--probably he was not, or he
would not have continued taking bribes
for nine more years. The two cases to
which the district judge referred as
examples of Maloney’s "acting to deflect
suspicion from his corrupt conduct" are
cases in which Maloney accepted bribes,
but in one he returned the bribe because
he realized that he was under
investigation and in the other he
convicted the defendant anyway. Neither
case had anything to do with compensatory
bias.

  The district judge seems to have based
his conclusion about Maloney’s motivation
largely on the "Government’s Official
Version of the Offense" submitted in
Maloney’s criminal trial. This document,
which the parties refer to as the
sentencing recommendation or sentencing
memorandum, is also the cornerstone of
the petitioners’ appeal. In it the
Justice Department accused Maloney (whom
it called "degenerate" and "a mafia
factotum") of practicing compensatory
bias. The document consists, however, of
57 single-spaced pages, and the
allegation of compensatory bias appears
on just one of them. It is colorful
("THOMAS MALONEY far surpassed the category
of corrupt jurist to chart a new
territory of defilement"), vivid, even
plausible. But no substantiation or
elaboration is offered. No cases in which
Maloney may have engaged in compensatory
bias are cited; no evidence, direct or
circumstantial, admissible or
inadmissible, that he ever engaged in the
practice is offered. The allegation is
sheer conjecture. The Justice Department
understandably was pressing for a very
long sentence (more than 20 years), and
it pulled out all the stops.

  The district judge may have had
misgivings about the theory of
compensatory bias that he had just
embraced, because in the section of his
opinion captioned "conclusions of law" he
made a finding (a finding of fact, not a
conclusion of law) that "the evidence
does not establish that an interest in
covering up wrongdoing or motivating
larger bribe payments pervaded every
action taken by Maloney as a judge.
Maloney’s bribetaking has not been shown
to have been so pervasive a part of his
judicial practices that it can be assumed
he was always, or even usually, motivated
by his pecuniary and/or penal interests
when exhibiting his prosecution-oriented
tendencies." Id. at 909 (emphasis added).
The judge then examined Maloney’s rulings
at the trial of Bracy and Collins to see
whether this might have been one of those
unusual cases and found no rulings at the
guilt phase of the trial that were
suggestive of bias. He concluded that the
convictions were untainted. The
conclusion is correct, and compelled by
the evidence, which was even weaker than
the judge thought. For all that appears,
Maloney was a prosecution-minded judge
for reasons unrelated to his taking
bribes. That he would accept payment to
acquit criminals does not imply any
affection for criminal defendants or
their lawyers such that he must have been
acting against character when he ruled in
favor of the prosecution in cases in
which he was not bribed. That is a
possibility, but no more than a
possibility. Maloney’s conduct was
appalling, his character depraved, but
the bridge to the trial of Bracy and
Collins is missing. He was certainly
capable of dreaming up and acting on
compensatory bias, but there is no
evidence that he did.

  But examining Maloney’s rulings at the
sentencing phase of the petitioners’
trial, the district judge found the taint
of compensatory bias. The only ruling (or
pair of rulings) he mentioned was
Maloney’s refusal to sever Collins’s sen
tencing hearing from Bracy’s and conduct
it first in order to give Bracy’s lawyer
more time to prepare for his client’s
hearing. The ruling is said to have
harmed Collins because it meant that the
jury would hear evidence about additional
murders that Bracy had committed in
Arizona, murders in which Collins had not
been implicated. He had not raised the
issue of severance in his state-court
appeal, and as a result it was treated as
forfeited in the federal habeas corpus
proceeding. It is not surprising that he
didn’t raise the issue, because it is
very difficult to see how he would have
been harmed, rather than helped, by
evidence that Bracy was a worse murderer
than he. And so it is difficult to see
how the ruling could be thought evidence
of bias. More important, the ruling on
the motion to sever was not new evidence
obtained through discovery after the
remand by the Supreme Court. That in
itself would not disqualify the ruling as
a basis for finding compensatory bias;
but in fact the discovery brought nothing
to light that made the inference of
compensatory bias any more compelling
than it had been before the discovery was
conducted. Much of the discovery
consisted of a wild goose chase after
McDonnell’s relationship to Maloney. The
chase did uncover ugly evidence of
criminality and mob ties of both
McDonnell and Maloney, but nothing that
bore on the issue of compensatory bias--
except to dispel the suspicion that
Maloney had appointed McDonnell to make
sure that Bracy would be convicted, or
that McDonnell had tried to throw the
case in order to curry favor with
Maloney.

  The petitioners note the district
judge’s failure to mention that their
trial was a high-profile case sandwiched
in between two cases in which Maloney had
accepted bribes and that Maloney may have
believed that if he gave the prosecutor
what he wanted in this high-profile case,
a case of particular importance to the
Cook County state’s attorney’s office,
the prosecutor would be less likely to
act on any suspicion that he might have
had of Maloney’s bribetaking. These
points do not nudge the possibility that
Maloney was biased in the petitioners’
case to a probability. After lengthy
discovery the theory that Maloney
practiced compensatory bias, either
generally or in this case, remains
hopelessly speculative. The petitioners
have failed to show that they were denied
due process of law either at trial or in
sentencing. To reverse their convictions
or sentences would merely compound
Maloney’s wrongdoing.

  The denial of relief with respect to the
petitioners’ convictions is affirmed. The
grant of such relief with respect to
their sentences is reversed with
instructions to enter judgment for the
respondents.




  ROVNER, Circuit Judge, dissenting. Five
years ago, I argued that Bracy and
Collins ought to be given the chance to
conduct discovery in an effort to marshal
evidence that Judge Maloney’s serial
bribe-taking had an impact on their
trial. "If their discovery proves
fruitless," I said, "we can at least take
comfort in the knowledge that we have
given them every opportunity to prove
that Maloney’s corruption deprived them
of a fair trial." Bracy v. Gramley, 81
F.3d 684, 699 (7th Cir. 1996) (dissent),
rev’d in part, 520 U.S. 899, 117 S. Ct.
1793 (1997). The petitioners have now had
their chance at discovery. If proof that
a corrupt judge is biased in cases where
no bribe is tendered were easy to come
by, the petitioners would no doubt have
found it. But smoking guns are rare, and
I agree with my colleagues that discovery
has yielded no hard proof that Maloney
engaged in camouflaging bias in their
particular case. What discovery has
produced, however, should make us feel
less, rather than more, confident that
the petitioners’ convictions and
sentences were untainted by Maloney’s
bribe-taking.

  We know, of course, as we did before,
that Maloney was engaged in serial bribe-
taking within the time frame surrounding
the petitioners’ convictions. The jury’s
finding against Maloney reveals that he
accepted bribes to fix at least four
cases: People v. Lenny Chow, No. 81 C
4020, People v. Ronald Roby, No. 82 I
50244, People v. Owen Jones, No. 81 C
9832, and People v. Earl Hawkins &
Nathson Fields, No. 85 C 6555. The
prosecution’s case against Maloney
posited that he accepted bribes in at
least two other cases--People v. Frank
Calistro, No. 82 C 8355, and People v.
Wilfred Rosario, No. 79 C 2469--although
the jury did not find the alleged bribe
in Calistro to have been proved beyond a
reasonable doubt and it was not asked to
render a finding as to the alleged bribe
in Rosario. Hearsay evidence in the
government’s investigative file on
Maloney suggests that he may also have
accepted a bribe to acquit the defendant
of murder in People v. Rocco LaMantia,
No. 79 C 2623, in 1981. R. 162 Ex. 23 at
6, Ex. 24 at 1-2; see Collins v. Welborn,
79 F. Supp. 2d 898, 904 para. 19 (N.D.
Ill. 1999).

  The record now before the court also
makes it both possible and reasonable to
infer that Maloney accepted bribes in
many other cases. An FBI analysis of
Maloney’s finances reveals that his
expenditures in the years 1978 to
1984exceeded his known, legitimate income
in those years by some $400,000. R. 162
Exs. 53, 54; 79 F. Supp. 2d at 907 para.
40. Assuming that the typical bribe was
in the $5,000 to $10,000 range, then
Maloney may have fixed at least 40 cases,
and perhaps as many as 80 during those
years./1

  Five of the identified acts of bribery
took place between 1981 and 1983, and one
in 1986. (Bracy and Collins, of course,
were arraigned in March of 1981, and they
were tried, convicted, and sentenced to
death in July 1981.) Two of the known
bribes were tendered to Maloney in
proceedings that took place shortly
before and shortly after Bracy and
Collins were tried in July 1981: after
accepting a bribe of $2,500 in People v.
Rosario, Maloney suppressed the
defendant’s confession on January 23,
1981, and dismissed the case on June 17,
1981; and in mid-August, 1981, after
accepting an unknown share in a bribe of
$100,000, Maloney acquitted all three
defendants in People v. Chow, 79 F. Supp.
2d at 903-04 para.para. 12, 16. In short,
we know that Maloney’s bribe-taking was
neither isolated nor sporadic, and that
Bracy and Collins were tried in the midst
of it.
 The record also supplies some
confirmation that Maloney engaged in acts
designed to further and/or camouflage his
bribe-taking. First, now part of the
record in this case is the transcript of
Maloney’s trial (which previously was
under seal and unavailable to the
petitioners). That transcript includes
the testimony of William Swano, recounted
in my previous dissent. See 81 F.3d at
697. In short, Swano, who had bribed
Maloney in other cases, had a case before
Maloney--People v. James Davis--that he
believed to be a sure winner for his
client. On Swano’s advice, his client
waived his right to a jury and the case
was tried to Maloney, whom Swano did not
think it necessary to bribe in view of
the merits of the case. Maloney
nonetheless convicted Swano’s client,
which Swano construed as a lesson that
"to practice in front of Judge Maloney .
. . we had to pay." R. 162 Ex. 20, United
States v. Maloney & McGee, No. 91 CR 477,
Trial Tr. at 2530. Without more, one
might say that this was nothing more than
Swano’s belief, and that it is entirely
possible that Maloney convicted Davis
wholly on the merits of the prosecution’s
case. But Swano subsequently met with
bagman Robert McGee to discuss a bribe in
Hawkins & Fields. McGee told Swano that
Maloney had okayed the discussion,
acknowledging that he had "screwed" Swano
in the Davis case. R. 241, United States
v. Maloney & McGee, No. 91 CR 477, Trial.
Tr. at 2568. That acknowledgment
constitutes confirmation that Maloney did
engage in camouflaging bias.

  Second, Maloney initially accepted a
$10,000 bribe in People v. Hawkins &
Fields, only to return the money and
convict the defendants when he perceived
(correctly) that the FBI had its eye on
him. The Illinois Supreme Court
subsequently concluded that Hawkins and
Fields were entitled to a new trial,
because Maloney had been motivated
toconvict them in order to deflect
suspicion. People v. Hawkins, 690 N.E.2d
999, 1004 (Ill. 1998).

  Third, in People v. Dino Titone, No. 83
C 127, Maloney accepted a $10,000 bribe
to acquit Titone, but convicted him
anyway, again to deflect suspicion. That
compensatory motive persuaded the post-
conviction judge to vacate the
defendant’s conviction and grant him a
new trial. R. 239, People v. Titone, No.
83 C 127, Post-conviction Tr. at 10-13
(Cir. Ct. Cook County July 25, 1997).

  Fourth, we have the version of the
offense that the government submitted to
the court for purposes of Maloney’s
sentencing, which wholly embraces and
advocates the notion that Maloney engaged
in compensatory bias.

. . . THOMAS MALONEY’S corruption began
at the time he was a criminal defense
attorney paying off judges and court
personnel to fix cases--including a
notorious murder case--and continued
through the time he was a judge working
as a mafia factotum in the Cook County
Circuit Court system and taking all
manners of bribes on very serious
criminal cases. Thomas Maloney’s
reputation as a strict prosecution-
oriented judge was not a mistake. By
casting this image, Maloney sought to
deflect suspicion from his criminal
activity, while simultaneously giving
select desperate defendants who knew the
right people an incentive to pay him off.
Thus, by using his position as a felony
trial court judge to extract bribes from
defendants who face[d] long periods of
imprisonment or execution, THOMAS MALONEY
far surpassed the category of corrupt
jurist to chart a new territory of
defilement.

*   *   *

. . . [W]hen he got his turn on the
bench, THOMAS MALONEY imposed a sinister
system which had the dual effect of
concealing and promoting his corruption.
THOMAS MALONEY the former champion of the
defendant became one of the most ruthless
judges on the bench. Showing defendants
little mercy had the effect of diverting
any conceivable suspicion from MALONEY
while at the same time giving defendants
a strong motivation to cough up big
bribery dollars.

R. 162 Ex. 1, United States v. Maloney &
McGee, No. 91 CR 477, Government’s
Official Version of the Offense at 54-55
(N.D. Ill. filed May 23, 1994). As my
colleagues suggest, the government
certainly had an incentive in submitting
this memorandum to portray Maloney in the
worst possible light and so to persuade
Judge Leinenweber, who sentenced Maloney,
to mete out the harshest possible
penalty. Yet, the government obviously
had no interest in helping Bracy,
Collins, or any other defendant convicted
by Maloney to obtain relief from their
convictions. It strikes me as doubtful
that any prosecutor--federal or state--
would admit that a judge deliberately
favored the prosecution for nefarious
reasons if the facts did not warrant that
acknowledgment. Having investigated and
tried Maloney, his prosecutors were in
the best position to assess his modus
operandi as a corrupt jurist and its
ramifications for defendants who did not
bribe him. Their considered judgment, as
officers of the court, that Maloney did
engage in purposeful and systematic
compensatory bias deserves much more
weight than my colleagues (ensconced as
we all are within the sheltered environs
of this court) are willing to give it.

  We know one more fact. In 1994, Maloney
stood before Judge Leinenweber defiantly
proclaiming his innocence. By this time,
of course, the proof of Maloney’s bribe-
taking had already convinced a jury
beyond a reasonable doubt that he was a
criminal. Nonetheless, as he waited for
Judge Leinenweber to pass sentence,
Maloney continued to insist that he had
been an honest judge with a distinguished
career. Among the cases he cited as a
credit to his career, and as proof that
he was not corrupt--in addition to
Hawkins & Fields, where we know that
Maloney engaged in compensatory bias--
were the convictions of Bracy and
Collins. R. 162 Ex. 13, United States v.
Maloney & McGee, No. 91 CR 477,
Sentencing Tr. at 606-07 (N.D. Ill. July
21, 1994).

  In sum, the record supplies us with
confirmation that Maloney was engaged in
serial bribe-taking that almost certainly
was more extensive than the particular
bribes underlying his conviction reveal;
that he accepted bribes in cases
immediately before and after Bracy and
Collins were tried; that he was cognizant
of the public scrutiny that his bribe-
taking could engender and did not
hesitate to take compensatory action--
including the return of a bribe, and the
conviction of an individual who had
bribed him--in order to protect himself;
and that the very government that built
the case against Maloney believed that he
cultivated a reputation as a fierce, law-
and-order judge both to deflect suspicion
from his bribe-taking and to encourage
defendants to bribe him.

  What we do not have, and what my
colleagues insist is a prerequisite to
relief, is hard proof that camouflaging
bias was at work in this case. The theory
that Bracy floated before the Supreme
Court--that Robert McDonnell was
Maloney’s former law partner, and that
Maloney agreed to appoint him as Bracy’s
counsel in exchange for a promise that he
would accept a quick trial, so that the
trial of Bracy and Collins might serve to
camouflage the corrupt disposition of the
Chow murder prosecution, see 520 U.S. at
907-08, 117 S. Ct. at 1798-99--was not
borne out by the facts./2 Maloney, who
continues to deny that he ever accepted a
bribe, of course will not admit that he
ever engaged in camouflaging bias in any
case, let alone this particular one. And
although there is proof that Maloney may
have taken compensatory action in other
cases to conceal and further his bribe-
taking franchise, there is no proof that
he invarably engaged in camouflaging bias
in cases where no bribe was tendered.

  Proof along these lines could come from
only two sources--Maloney, and those who
associated with him in his bribe-taking.
Maloney is the only individual who would
necessarily know when he took
compensatory actions to hide his bribe-
taking, but the questioning of him
quickly reached a dead end. Maloney
continues to "vehemently and arrogantly
den[y] all of the bribery charges clearly
established by the jury findings and the
evidence presented at his criminal
trial." 79 F. Supp. 2d at 907 para. 41.
Those who bribed Maloney or who
facilitated his bribe-taking--people like
Swano, who learned firsthand the need to
bribe Maloney in order to obtain an
acquittal, and Lucius Robinson, who
served as both bailiff and bagman for
Maloney--might have a glimpse into
Maloney’s mind. But in the finest
tradition of mobsters, swindlers, and
certain campaign fund-raisers, Swano
declined the opportunity to further
incriminate himself, R. 213 Ex. 14,
Deposition of William Swano, and Robinson
had nothing more insightful to say than
Maloney was known as "a hard fucking
judge" who "more or less leaned toward
[prosecutors and police officers] in
cases," R. 213 Ex. 10(b), Deposition of
Lucius Robinson, at 47, 48./3

  But the lack of such proof by no means
rules out the possibility that Maloney
did engage in camouflaging bias on a
regular basis, and possibly in this case.
Bribery itself is quite difficult to
expose. The fact that an acquittal (or
some other dispositive ruling for the
defendant) has been paid for is rarely
evident from the record. Individual
judges often take widely disparate views
of the facts and even the law, and
legitimately so. Given the breadth of a
judge’s discretion, and his nearly
unfettered power to render credibility
assessments, one can almost never say
with certainty that a surprising ruling
in favor of the defendant is necessarily
the product of corruption. To show that
money has changed hands often requires
years of work using the full array of
investigative resources (electronic
surveillance, undercover agents, and
cooperating witnesses). Proof that a
corrupt judge engaged in camouflaging
bias will be at least as difficult to
obtain, if not more so, and persons in
the position of Bracy and Collins must
search for that proof without the
resources and might of the government. If
a judge decides to hide his bribe-taking
by favoring the prosecution in a
particular case, there will be little to
mark that decision. No money will change
hands, the prosecutor will not be given a
whispered assurance that "things have
been taken care of," and there will be no
one in the courtroom (save the judge)
patiently awaiting a foreordained result.
Absent a lopsided record, the only hard
proof of compensatory bias can issue from
the judge’s own mouth. Where, as here,
the judge does not even acknowledge his
own bribe-taking, and associates who may
have been privy to his thinking plead
either ignorance or the Fifth Amendment,
then the proof is wholly inaccessible.

  Yet, proof of actual bias has never been
treated as the sine qua non of a due
process claim. The Supreme Court has not
hesitated to vacate a conviction where it
is shown that the judge who presided at
trial had an interest in the outcome,
even if there is no proof that this
interest manifested in actual bias
against either party. Thus, in Tumey v.
Ohio, 273 U.S. 510, 47 S. Ct. 437 (1927),
the Court invalidated a statutory scheme
that authorized town mayors to try
persons accused of liquor offenses and
provided for reimbursement of the mayors’
trial costs from the fines imposed on
those they convicted of such offenses.
Because the scheme in this way gave the
mayor-judge a pecuniary interest, albeit
a relatively modest one, in the outcome
of the trial, the court reasoned, it was
inconsistent with due process.

There are doubtless mayors who would not
allow such a consideration as $12 costs
in each case to affect their judgment in
it, but the requirement of due process of
law in judicial procedure is not
satisfied by the argument that men of the
highest honor and the greatest self-
sacrifice could carry it on without
danger of prejudice. Every procedure
which would offer a possible temptation
to the average man as a judge to forget
the burden of proof required to convict
the defendant, or which might lead him
not to hold the balance nice, clear, and
true between the state and the accused
denies the latter due process of law.

273 U.S. at 532, 47 S. Ct. at 444
(emphasis supplied). Similarly, the Court
in In re Murchison, 349 U.S. 133, 75 S.
Ct. 623 (1955), concluded that due
process would not permit the same judge
who acted as a one-person grand jury
under Michigan law to try contempt
charges arising out of the grand jury
proceedings. "Fairness of course
requires an absence of actual bias in the
trial of cases," the Court observed. Id.
at 136, 75 S. Ct. at 625. "But our system
of law has always endeavored to prevent
even the probability of unfairness."
Ibid. (emphasis supplied). And in Aetna
Life Ins. Co. v. Lavoie, 475 U.S. 813,
106 S. Ct. 1580 (1986), the Court found
that a due process violation occurred
where a member of the Alabama Supreme
Court had cast the deciding vote and
written the decision affirming a
$3.5million punitive damage award against
an insurance company for its bad-faith
refusal to pay a valid claim at the same
time that the justice had at least one
similar lawsuit of his own pending
against an insurer in a lower Alabama
court. That pending action, the Court
reasoned, gave the justice a pecuniary
interest in the outcome of the decision
that he authored. Id. at 824-25, 106 S.
Ct. at 1586-87. The Court did not find it
necessary to decide whether the justice
was actually biased by virtue of his own
litigation; the possibility that he might
have been so was sufficient to establish
a due process violation. Id. at 825, 106
S. Ct. at 1587.

The Due Process Clause "may sometimes bar
trial by judges who have no actual bias
and who would do their very best to weigh
the scales of justice equally between
contending parties. But to perform its
high function in the best way, ’justice
must satisfy the appearance of justice.’"

Ibid., quoting Murchison, 349 U.S. at
136, 75 S. Ct. at 625 (additional
citation omitted).

 The circumstances here likewise argue in
favor of treating the judge’s temptation
to lean in one party’s favor as
disqualifying in and of itself. Common
sense tells us that a corrupt judge who
wishes to retain his office will do
whatever he can to hide his bribe-taking.
An obvious way to do that is to make it
a practice to favor the State in cases
where no bribe is tendered./4 There is
an inherent difficulty in the attempt to
peer into a judge’s mind to ascertain if,
when, and how the judge engaged in
compensatory actions to deflect suspicion
away from his wrongdoing. But the
possible temptation to cloak his bribe-
taking in this way was present
nonetheless. And the presence of that
temptation in turn undermines confidence
in the fairness of the trials over which
the corrupt judge presided.

  My colleagues suggest that the Supreme
Court has already rejected the notion
that a corrupt judge’s temptation to
engage in compensatory bias is sufficient
to place the case within the Tumey-
Murchison-Aetna framework, but instead
has conditioned relief on proof of actual
bias. Ante at 4-5. It is true that the
Court remanded this case so that the
petitioners would have the chance to
conduct discovery aimed at showing actual
bias. It is also true that the Court
acknowledged, in a footnote, that
discovery would be unnecessary if proof
of actual bias were not required. 520
U.S. at 905 n.5, 117 S. Ct. at 1797 n.5.
But I think it wrong to suggest that the
Court, by implication, has already
decided that proof of actual bias must be
shown on the part of a corrupt judge. The
Court granted certiorari to decide one
and only one question--whether the
petitioners were entitled to discovery.
Bracy v. Gramley, 519 U.S. 1074, 117 S.
Ct. 726 (1997). Had the discovery yielded
proof that Judge Maloney was actually
biased against Bracy and Collins, then
there would be no need to consider
whether his bribe-taking might entitle
them to relief even in the absence of
that proof. It may be that when
confronted with the question of whether
actual bias must be shown, the Supreme
Court will decide the issue as my
colleagues have predicted. But we have no
business attributing a holding to the
Court on a question as to which it did
not grant certiorari, it did not give the
parties an opportunity to brief, and
which was not the subject of argument.
The Supreme Court does not make law by
stealth. When it decides the issue, we
will know it.

  We have a duty at this juncture to
consider not only whether Bracy and
Collins have succeeded in proving actual
bias, but also whether, in light of what
their discovery has (and has not)
produced, the burden we have assigned to
them is a realistic and appropriate one.
Discovery, after all, has not proven that
Maloney was in fact fair to any defendant
who did not bribe him. It has simply
failed to produce proof that he was
actually biased against Bracy and
Collins. It has, however, established
that Maloney’s bribe-taking was not
isolated, that he was sensitive to public
detection of his bribe-taking, that on
occasion he took compensatory actions in
order to hide and further his bribe-
taking, and that the successful
prosecution of Bracy and Collins was a
case that he could and did cite as proof
that he was not corrupt. At the same
time, the limits of discovery have been
laid bare: the principal wrongdoer
refused to acknowledge even taking a
bribe, and others who might have provided
some insight into his practices either
claimed an inability to do so or refused
to speak at all. There remains the very
real possibility that Maloney might have
engaged in compensatory bias against the
petitioners, but without the glimpse into
his mind that my colleagues agree would
be difficult to obtain, ante at 4, we
will never know it.

  And so we return to the fundamental
problem that I highlighted in my first
dissent. My colleagues believe that in
the absence of any proof establishing the
taint of compensatory bias in this
particular case, we should assume that
Maloney gave Bracy and Collins a fair
trial. I remain puzzled as to the
justification for this. After all, as the
Supreme Court has recognized, the
presumption that Maloney properly
discharged his duties as a judge "has
been soundly rebutted[.]" 520 U.S. at
909, 117 S. Ct. at 1799. Moreover, in
contrast to the Tumey-Murchison-Aetna
line of cases, we are not simply dealing
here with a conflicted judge, but a
corrupt one. Common sense suggests that
the corrupt judge would be even more
likely to yield to the temptation not to
"hold the balance nice, clear, and true
between the state and the accused,"
Tumey, 273 U.S. at 532, 47 S. Ct. at 444,
than an honest one. Yet the court clings
to the idea that Maloney’s bribe-taking
was insular, and that he rendered
acceptably fair trials when he did not
take bribes. I doubt that my colleagues
would be so complacent if they stood in
the petitioners’ shoes. If a court system
promised everyone a fair trial, but
offered to stack the deck in a party’s
favor for an appropriate fee, the cash
machines and loan sharks nearest to the
courthouse would be swamped with
business, and not simply because everyone
would want the favors that the fee might
secure for them, but because no one could
be confident in the fairness of
supposedly impartial proceedings that
others were buying their way out of. No
one convicted by or before Maloney can
feel sanguine, knowing that for as little
as $2,500 he might have walked out of his
courtroom a free person. And none can be
sure that, in the absence of a bribe,
Maloney did not take the opportunity to
hide and/or promote his bribe-taking.

  The driving factor behind the court’s
presumption that Maloney was impartial
when not bribed is the same one that has
lurked in the background since the start
of this case--our reluctance to set a
precedent that might undo the convictions
of all those persons who were tried and
convicted before Maloney. See ante at 5.
"To reverse [the petitioners’]
convictions or sentences would merely
compound Maloney’s wrongdoing," my
colleagues observe. Ante at 10. That
view, however, underestimates the
profound damage that a corrupt judge
inflicts by shaking the public faith in
the fairness of our judicial process.
Ignoring the impact that a judge’s
systematic acceptance of bribes has upon
cases in which no bribe was tendered will
simply magnify the distrust that results
from official corruption. The truth is,
given the passage of time, most people
tried and sentenced by Maloney have
served their prison terms, so few people
would go free were retrials ordered for
defendants like Bracy and Collins. But
confidence in the integrity of the
judicial system would be promoted. And in
a State in which bribery has by no means
vanished, requiring such retrials might
encourage the State and its citizens to
scrutinize the conduct of our public
officials with a keener eye.
  It strikes me that the court’s
disposition of this case is laden with
irony. Defendants tried before judges of
unquestioned integrity, with a possible
temptation to favor the government, are
entitled to new trials. Tumey, 273 U.S.
510, 47 S. Ct. 437. Defendants who bribed
Maloney, only to be convicted by him when
he decided that fixing their cases was
too risky, have won new trials. Hawkins,
690 N.E.2d 999. Even defendants who
managed to initially escape conviction by
successfully bribing Maloney are being
given exactly what Bracy and Collins seek
today--a fair trial before an honest and
impartial judge. People v. Aleman, 1994
WL 684499 (Cir. Ct. Cook County Oct. 12,
1994), aff’d, 667 N.E.2d 615 (Ill. App.
1996), cert. denied, 519 U.S. 1128, 117
S. Ct. 986 (1997); see also Aleman v.
Honorable Judges of Circuit Court of Cook
County, 138 F.3d 302 (7th Cir.), cert.
denied, 525 U.S. 868, 119 S. Ct. 162
(1998). But these two petitioners,
sentenced to death before a judge whose
career as an attorney and judge was
corrupt from beginning to end, are told
that the judgment of a racketeer is
perfectly satisfactory. It is a sad day
indeed when defendants who attempted to
purchase their way out of a conviction
receive a greater measure of justice than
those who did not.

  I respectfully dissent.


/1 The known bribes amounted to less than $5,000 in
several instances and in some cases $10,000 or
more. The greatest known bribe tendered to Malon-
ey was an undisclosed share of the $100,000 pay-
off in Chow for the acquittal of three gang
members in a notorious shooting in Chicago’s
Chinatown. The other known bribes include the
tender of $10,000 in Hawkins & Fields to acquit
one or both of two El Rukn gang members of a
double murder (a bribe that Maloney subsequently
returned when he suspected that the FBI was
monitoring the case), the $2,300 Maloney accepted
in Roby in exchange for a sentence of probation,
the $4,000 to $5,000 Maloney accepted to acquit
the defendant in Jones of felony murder and
sentence him to a term of nine years on the
lesser charge of voluntary manslaughter. The
alleged bribes tendered in Calistro (for a sen-
tence of probation) and Rosario (where the defen-
dant’s confession was suppressed and the case
against him was eventually dismissed) were each
in the amount of $2,500.

/2 I would note, however, that discovery has hardly
given us reassurance as to McDonnell’s creden-
tials. It turns out that McDonnell was a twice-
convicted felon who managed to regain his law
license in 1980, the year before Bracy and Col-
lins were tried. R. 213 Ex. 8, Deposition of
Robert McDonnell, at 26-32; see United States v.
Mirro & McDonnell, 435 F.2d 839 (7th Cir. 1970);
In re McDonnell, 413 N.E.2d 375 (Ill. 1980).
Coincidentally, McDonnell also had a reputation
among his colleagues as a fixer of cases. R. 213,
Ex. 11, Deposition of Terrence Hake, at 16. Years
later, McDonnell would add yet another conviction
to his curriculum vitae. See United States v.
Taglia & McDonnell, 922 F.2d 413 (7th Cir.), cert.
denied, 500 U.S. 927, 111 S. Ct. 2040 (1991).

/3 The only other readily apparent means of estab-
lishing actual compensatory bias--one that the
state’s counsel (who with commendable grace and
patience endured my pointed questions) identified
at oral argument--would be a pattern of rulings
and conduct so overtly hostile to the defense
that the judge’s bias would be readily apparent
from the record. That is obviously not the case
here, or the petitioners’ convictions would long
ago have been vacated.

/4 My colleagues, of course, remain skeptical that
a judge would engage in such compensatory bias.
They have suggested that a corrupt judge might do
better to cultivate a defense-friendly reputa-
tion, so that paid-for acquittals look less out
of place. See ante at 4. That skepticism, howev-
er, ignores the possibility that the State might
be less willing to consent to a bench trial
before a defense-friendly judge, which in turn
would make it more difficult for the judge to
sell his services. It also overlooks the proof
that Maloney did not hesitate to engage in com-
pensatory bias on at least two occasions, when he
convicted defendants who had bribed him in order
to deflect the government’s suspicions--notwith-
standing the incentive that his turnabout gave to
those defendants to blow the whistle on him. It
also overlooks Swano’s testimony, which suggests
that Maloney engaged in compensatory bias not
simply to avoid suspicion, but to cultivate
additional bribes.
