The twin faces of judicial corruption: Extortion and bribery

Denver University Law Review

Volumn 74, Issue 4, 1997, Pages 1231-1253

  Ayres, Ian ^a,b  

^a YALE UNIVERSITY   (United States)

^b MASSACHUSETTS INSTITUTE OF TECHNOLOGY   (United States)

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EID: 11244250933     PISSN: 08839409     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (131)

1. BERTOLT BRECHT, THE CAUCASIAN CHALK CIRCLE 102 (1947).
2. Rule 1.6 of the ABA Model Rules of Professional Conduct mandates that "a lawyer shall not reveal information relating to representation of a client unless the client consents . . . ." Titone has given me "permission to write, discuss and/or publish for any media any description, account, opinion or other information or material about and relating to my prosecution or his subsequent representation of me - except information covered by the attorney client privilege." Letter from Dino Titone to author (Feb. 3, 1997) (on file with author).
3. People v. Titone, 505 N.E.2d 300, 300 (III. 1986) Two codefendants, Robert Gacho and Joseph Sorrentino, were convicted in severed trials. Id.
4. The petition was based on affidavits of Titone and his father. The affidavits alleged that money was paid to Titone's lawyer, Bruce Roth, who was to pass it along to Judge Maloney's bagman, Robert McGee. People v. Titone, Third Amended Petition for Post-Conviction Relief, Ind. No. 83-127 (Cook County III. Cir. Ct., Jan. 25, 1990).
5. Id.
6. The requirement that post-conviction petitions (the Illinois analog to habeas corpus petitions) must be heard before the original judge itself has an interesting history. The Illinois legislature in its wisdom determined that post-conviction petitions should be heard before a new judge, Illinois Post-Conviction Hearing Act, III. Rev. Stat. ch. 38, ¶ 122-8 (1984 Supp.), but the Illinois Supreme Court struck down this statute as violating the state constitution's separation of powers limitation and held that the courts will determine the venue for post-conviction petitions without DENVER UNIVERSITY LAW REVIEW [Vol. 74:4 legislative interference. People v. Joseph, 495 N.E.2d 501, 506 (III. 1986).
7. Along with the petition I simultaneously filed a motion to place the court papers under seal, and a motion that Judge Maloney be removed for cause. Judge Maloney - without reading any of the papers - initially resisted placing any of the documents under seal. He repeatedly asked me to state in open court why I wanted the proceedings private. When I finally succeeded in getting him to read a crucial paragraph of the complaint alleging judicial corruption, he then kept me standing before him for twenty minutes as he carefully read the paper.
8. The judge found that Titone's own lawyer, Bruce Roth, intentionally sought the death penalty for his client (in order to induce appellate courts to review the underlying conviction more seriously). The judge found that this all-or-nothing strategy represented an abnegation of the adversary process and constituted ineffective assistance of counsel. See Strickland v. Washington, 466 U.S. 668 (1984).
9. People v. Titone, 600 N.E.2d 1160 (III. 1992).
10. Titone, 600 N.E.2d at 1164.
11. Even though this article describes Dino Titone as a "convicted payor," evidence suggests that Titone's father was in fact the payor. Affidavit of Salvator Titone (Oct 12, 1994).
12. Although this essay is focused on the issue of judicial corruption, the ideas also apply to issues of juror or prosecutor corruption. Because jurors are not repeat players it will be more difficult for them to establish a credible pattern of accepting bribes or extorting money. But the actions of jurors (and the decision of prosecutors not to prosecute) are less reviewable than many judicial decisions and hence may give these other actors more opportunity for corruption.
13. Maloney is one of 18 judges from the Cook County Circuit Court who have been convicted of corruption in the last decade. Bracy v. Gramley, 81 F.3d 684, 704 (7th Cir. 1996) (Rovner, J. dissenting), rev'd 117 S. Ct. 1793 (1997), cert. granted sub nom. Collins v. Welborn, 117 S. Ct. 2450 (1997). Maloney "has the dubious distinction of being the only Illinois judge ever convicted of fixing a murder case." Bracy v. Gramley, 117 S. Ct. 1793, 1795 (1997).
14. People v. Aleman, 667 N.E.2d 615 (III. App. Ct. 1996), appeal denied, 671 N.E.2d 734 (1996), cert. denied, 117 S. Ct. 986 (1997), habeas corpus denied sub nom., United States ex rel. Aleman v. Circuit Court, 967 F. Supp. 1022 (N.D. III. 1997).
15. Aleman, 667 N.E.2d 615.
16. Id. at 623-25.
17. Id. at 626.
18. Bracy, 81 F.3d 684.
19. Id. at 688.
20. Id.
21. Id.
22. Bracy, 117 S. Ct. 941. See Linda Greenhouse, Justices Consider How the Taint of a Corrupt Judge Should Be Measured and Remedied, N.Y. TIMES, Apr. 15, 1997, at A18 (noting that the Court granted certiorari only to consider whether petitioners were entitled to "discovery to support his claim that he was denied the right to a trial before an impartial judge").
23. James Lindgren, The Elusive Distinction Between Bribery and Extortion: From the Common Law to the Hobbs, 35 UCLA L. REV. 815, (1988) [hereinafter Lindgren, Elusive Distinction]; James Lindgren, The Theory, History, and Practice of the Bribery-Extortion Distinction, 141 U. PA. L. REV. 1695 (1993) [hereinafter Lindgren, Theory].
24. James Lindgren, The Elusive Distinction Between Bribery and Extortion: From the Common Law to the Hobbs, 35 UCLA L. REV. 815, (1988) [hereinafter Lindgren, Elusive Distinction]; James Lindgren, The Theory, History, and Practice of the Bribery-Extortion Distinction, 141 U. PA. L. REV. 1695 (1993) [hereinafter Lindgren, Theory].
25. James Lindgren, The Elusive Distinction Between Bribery and Extortion: From the Common Law to the Hobbs, 35 UCLA L. REV. 815, (1988) [hereinafter Lindgren, Elusive Distinction]; James Lindgren, The Theory, History, and Practice of the Bribery-Extortion Distinction, 141 U. PA. L. REV. 1695 (1993) [hereinafter Lindgren, Theory].
26. James Lindgren, The Elusive Distinction Between Bribery and Extortion: From the Common Law to the Hobbs, 35 UCLA L. REV. 815, (1988) [hereinafter Lindgren, Elusive Distinction]; James Lindgren, The Theory, History, and Practice of the Bribery-Extortion Distinction, 141 U. PA. L. REV. 1695 (1993) [hereinafter Lindgren, Theory].
27. Bracy, 81 F.3d 684. See Greenhouse, supra note 22.
28. In Evans v. United States, the Court held that: (1) there's no requirement of inducement for official extortion; (2) official extortion doesn't require coercion; (3) bribery isn't a defense to extortion; (4) official extortion isn't limited to false pretenses; and (5) the Government "need only show that a public official has obtained a payment to which he was not entitled, knowing that the payment was made in return for official acts." Lindgren, Theory, supra note 23, at 1708 (quoting Evans v. United States, 504 U.S. 255, 268 (1992)). An inducement requirement could be related to a procedural definition of extortion to the extent that inducement required the government official to initiate the negotiation.
29. Lindgren, Elusive Distinction, supra note 23, at 828.
30. United States v. Roth, 860 F.2d 1382, 1383 (7th Cir. 1988) (Easterbrook, J.), cert. denied, 490 U.S. 1080 (1989). Bruce Roth, the defendant in this Greylord prosecution, was a crooked lawyer. Id. He made a living bribing crooked judges. Id. Often Roth played the broker's role, matching lawyers who did not know which judges would take money with judges who did not know which lawyers would pay it Id.
31. Titone was such a defendant. Titone had three alibi witness testifying on his behalf. People v. Titone, 115 III.2d 413, 425 (1986). The prosecution, in contrast, had only one, severely impeached witness - an uncharged, admitted accomplice who had fled the jurisdiction - linking Titone to the crime. People v. Titone, 505 N.E.2d 300, 300-01 (III. 1986).
32. Lindgren, Elusive Distinction, supra note 23, at 824.
33. See Alan Wertheimer, Remarks on Coercion and Exploitation, 74 DENV. U. L. REV. 889, 900 (1997) (discussing moralized baseline). Fred McChesney has powerfully analyzed the potential for government shakedowns backed by the threat of unjust treatment Fred S. McChesney, Rent Extraction and Rent Creation in the Economic Theory of Regulation, 16 J. LEG. STUD. 101 (1987).
34. See Alan Wertheimer, Remarks on Coercion and Exploitation, 74 DENV. U. L. REV. 889, 900 (1997) (discussing moralized baseline). Fred McChesney has powerfully analyzed the potential for government shakedowns backed by the threat of unjust treatment Fred S. McChesney, Rent Extraction and Rent Creation in the Economic Theory of Regulation, 16 J. LEG. STUD. 101 (1987).
35. Jim Lindgren's two articles on bribery and extortion are path-breaking. He clearly sees the clean, substantive distinction between bribery and extortion, but then needlessly muddies the distinction by unhelpfully complicating the definition of extortion: [C]oercive extortion by a public official is the seeking or receiving of a corrupt benefit paid under an implicit or explicit threat to give the payor worse than fair treatment or to make the payor worse off than he is now or worse than he expects to be. . . . Thus, while bribery has only one baseline (fair treatment), coercive extortion has at least three baselines (fair treatment, expected treatment, and the status quo). Lindgren, Theory, supra note 23, at 1701. Lindgren's triple benchmark for extortion leads him to unhelpfully find an "overlap" between bribery and extortion: Now what about government officials who have a duty to arrest criminals? Here coercive extortion and bribery overlap. If a police officer suggests that he will not arrest a criminal if he is paid off, this is extortion, because he is threatening to make the criminal worse off than he is now. But it's also bribery, because the criminal is paying hush money for more than fair treatment Id. (footnotes omitted). See also Lindgren, Elusive Distinction, supra note 23, at 827. It seems more useful to describe this hypothetical as a pure bribe. Fair treatment would be for the official to arrest the criminal; here, the criminal is purchasing better than fair treatment The criminal's actions are no less repugnant because the official was threatening to change the status quo. Indeed, the status quo was that the criminal was rightfully subject to arrest - so that threatening arrest is not clearly a change in the status quo. Like Lindgren, I will argue that pure bribery and extortion are often combined in the same agreement, see infra p. 35, but Lindgren's hypothetical is not a good example of this blending.
36. Jim Lindgren's two articles on bribery and extortion are path-breaking. He clearly sees the clean, substantive distinction between bribery and extortion, but then needlessly muddies the distinction by unhelpfully complicating the definition of extortion: [C]oercive extortion by a public official is the seeking or receiving of a corrupt benefit paid under an implicit or explicit threat to give the payor worse than fair treatment or to make the payor worse off than he is now or worse than he expects to be. . . . Thus, while bribery has only one baseline (fair treatment), coercive extortion has at least three baselines (fair treatment, expected treatment, and the status quo). Lindgren, Theory, supra note 23, at 1701. Lindgren's triple benchmark for extortion leads him to unhelpfully find an "overlap" between bribery and extortion: Now what about government officials who have a duty to arrest criminals? Here coercive extortion and bribery overlap. If a police officer suggests that he will not arrest a criminal if he is paid off, this is extortion, because he is threatening to make the criminal worse off than he is now. But it's also bribery, because the criminal is paying hush money for more than fair treatment Id. (footnotes omitted). See also Lindgren, Elusive Distinction, supra note 23, at 827. It seems more useful to describe this hypothetical as a pure bribe. Fair treatment would be for the official to arrest the criminal; here, the criminal is purchasing better than fair treatment The criminal's actions are no less repugnant because the official was threatening to change the status quo. Indeed, the status quo was that the criminal was rightfully subject to arrest - so that threatening arrest is not clearly a change in the status quo. Like Lindgren, I will argue that pure bribery and extortion are often combined in the same agreement, see infra p. 35, but Lindgren's hypothetical is not a good example of this blending.
37. See, e.g., John Lawrence Hill, Moralized Theories of Coercion: A Critical Analysis, 74 DENV. U. L. REV. 907 (1997).
38. There are three types of favorable treatment that might be afforded criminal defendants that pay an extortion: 1. if they were originally convicted, we might be more willing to grant them a new trial; 2. if they were originally acquitted, we might be less willing to retry them; or 3. we might be less likely to prosecute them for participating in judicial corruption. The second possibility will be discussed in the acquitted payor section.
39. Lindgren clearly saw this possibility. Lindgren, Theory, supra note 23, at 1700 ("The same envelope filled with cash can be both a payment extorted under a threat of unfairly negative treatment and a bribe obtained under a promise of unfairly positive treatment"); see also Lindgren, Elusive Distinction, supra note 23, at 826.
40. Lindgren clearly saw this possibility. Lindgren, Theory, supra note 23, at 1700 ("The same envelope filled with cash can be both a payment extorted under a threat of unfairly negative treatment and a bribe obtained under a promise of unfairly positive treatment"); see also Lindgren, Elusive Distinction, supra note 23, at 826.
41. See ALAN WERTHEIMER, COERCION 204 (1987); MICHAEL TAYLOR, COMMUNITY, ANARCHY, AND LIBERTY 12 (1982).
42. See ALAN WERTHEIMER, COERCION 204 (1987); MICHAEL TAYLOR, COMMUNITY, ANARCHY, AND LIBERTY 12 (1982).
43. Bracy v. Gramley, 81 F.3d 684, 689-90 (7th Cir. 1996). The court stated: While a corrupt judge might decide to tilt sharply to the prosecution in cases in which he was not taking bribes - to right the balance as it were - it is equally possible that he would fear that by doing so he would create a pattern of inconsistent rulings that would lead people to suspect he was on the take. Id. Also the foregoing arguments ignore the impact that criminal law of bribery and extortion itself can have on the parties. For example, if judges and/or defendants were subject to higher penalties for combination agreements, combined agreements might not dominate extortion agreements.
44. It's harder to say that bribery agreements will tend to throw in extortion elements. My earlier argument was that if the parties were inclined to enter into an extortion agreement, they would routinely throw in an agreement for assured acquittal if the money were paid. But having agreed to a bribe (i.e., assured acquittal), it is harder to think what it would mean to combine elements of extortion.
45. Bracy, 81 F.3d at 689-90; see infra text accompanying note 51.
46. Lindgren, Theory, supra note 23, at 1700; see also Lindgren, Elusive Distinction, supra note 23, at 826. Lindgren, however, was not considering the specific context of judicial corruption in criminal cases. Given our general constitutional protection for criminal defendants, I imagine that Lindgren might well agree with the thesis of this paper that defendants who had entered into combination deals should receive new trials.
47. Lindgren, Theory, supra note 23, at 1700; see also Lindgren, Elusive Distinction, supra note 23, at 826. Lindgren, however, was not considering the specific context of judicial corruption in criminal cases. Given our general constitutional protection for criminal defendants, I imagine that Lindgren might well agree with the thesis of this paper that defendants who had entered into combination deals should receive new trials.
48. Indeed, once the first wave of Greylord indictments became public judges could say that defendants claiming to have paid money were merely concocting stories of judicial corruption.
49. 600 N.E.2d 1160 (III. 1992).
50. Titone has renewed his claim based on additional evidence of Judge Maloney's corruption.
51. People v. Titone, 600 N.E.2d 1160, 1166 (III. 1992).
52. 580 A.2d 1379 (Pa. Super. Ct. 1990).
53. Titone, 600 N.E.2d at 1166 (citing Shaw v. Commonwealth of Pa., 580 A.2d 1379, 1381 (Pa. Super. Ct. 1990)).
54. 475 U.S. 813 (1986).
55. Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 824 (1986).
56. Id. at 825 (citations omitted), discussed in Ruling on Petitioners' Motion for Post-Conviction Relief, at 12, People v. Hawkins & People v. Fields, Nos. 85-C-6555 & 85-C-7651 (Cook County III. Cir. Ct., Sept 18, 1996) (Dooling, J.).
57. Lavoie, 475 U.S. at 825.
58. Id.
59. Bracy v. Gramley, 81 F.3d 684, 688 (7th Cir. 1996) (quoting Del Vecchio v. Illinois Dep't of Corrections, 31 F.3d 1363, 1380 (7th Cir. 1994) (en banc)).
60. Ruling on Petitioners' Motion for Post-Conviction Relief, at 16, People v. Hawkins & People v. Fields, Nos. 85-C-6555 & 85-C-7651 (noting that "those who attempt to corrupt the judicial system may not later hide behind the very constitution they subvert"); see also Akhil Reed Amar & Jonathan L. Marcus, Double Jeopardy Law After Rodney King, 95 COLUM. L. REV. 1, 55 (1995).
61. Ruling on Petitioners' Motion for Post-Conviction Relief, at 16, People v. Hawkins & People v. Fields, Nos. 85-C-6555 & 85-C-7651 (noting that "those who attempt to corrupt the judicial system may not later hide behind the very constitution they subvert"); see also Akhil Reed Amar & Jonathan L. Marcus, Double Jeopardy Law After Rodney King, 95 COLUM. L. REV. 1, 55 (1995).
62. 620 F.2d 446 (5th Cir. 1980).
63. 36 F.3d 317 (3d Cir. 1994).
64. Zilich v. Reid, 36 F.3d 317, 318 (3d Cir. 1994).
65. Ruling on Petitioners' Motion for Post-Conviction Relief, at 18, People v. Hawkins & People v. Fields, Nos. 85-C-6555 & 85-C-7651.
66. People v. Titone, Third Amended Petition for Post-Conviction Relief, Ind. No. 83-127 (Cook County III. Cir. Ct., Jan. 25, 1990).
67. Id.
68. Id.
69. Superseding Indictment, U.S. v. Thomas J. Maloney, Robert McGee and William A. Swano, 91 CONG. REC. 477 (June 25, 1991).
70. Affidavit of Assistant United States Attorney, Scott Mendeloff, at 15 (Oct. 12, 1994), appended to Fourth Amended Petition for Post-Conviction Relief, People v. Titone, No. 83-127 (Cook County III. Cir. Ct., Oct. 12, 1994).
71. Findings of Circuit Judge Earl Strayhorn, People v. Titone, Ind. No. 83-127 (Cook County III. Cir. CL, Sept. 7, 1990) (vacating Titone's death sentence).
72. Judge Maloney wanted to avoid deciding; if a jury decided, Judge Maloney could not be blamed for the result by either Titone or the federal investigators. Trying to induce Titone to opt for a sentencing jury was Maloney's way of balancing the threat of Titone going public against the threat of federal scrutiny.
73. Baxter v. Palmigiano, 425 U.S. 308, 318-20 (1976) (stating that in civil proceedings the Fifth Amendment does not forbid fact finders from drawing an adverse inference). If state courts continue to deny an evidentiary hearing, Titone should file a § 1983 or RICO suit against Judge Maloney - in part to force Judge Maloney in deposition to face the question of whether he or his bagman received money from Titone. Titone's ability to file a civil action now, however, may be hampered by the statute of limitations or by qualified judicial immunity.
74. Amar & Marcus, supra note 52, at 54-57.
75. Id. at 55.
76. Maloney was Aleman's counsel when the agreement with Judge Wilson was struck and Maloney subsequently withdrew from the case at Judge Wilson's request because the two were such close friends that Judge Wilson did not want to show favoritism in a case in which Maloney was the defense attorney. Id. at 3.
77. See People v. Aleman, 667 N.E.2d 615, 619 (III. App. Ct. 1996).
78. Aleman, 667 N.E.2d at 617.
79. Id. at 627.
80. The court noted: "No case has been cited by Aleman or the State involving the application of double jeopardy principles to circumstances presented here: the alleged bribery of a judge resulting in acquittal of a defendant who the state seeks to retry for the same offense." Id. at 623.
81. Amar & Marcus, supra note 52. Amar tells me that he also informally advised the prosecutor in the case.
82. Id. at 55 (footnotes omitted) (emphasis added).
83. Aleman, 667 N.E.2d at 624 (emphasis in original) (quoting Breed v. Jones, 421 U.S. 519, 528 (1975)). The court similarly concluded for double jeopardy to apply "that a defendant must be 'subjected to the hazards of trial and possible conviction.'" Id. at 624 (quoting Green v. United States, 355 U.S. 184, 187 (1957)).
84. Id. at 626.
85. For example, before his initial trial, Aleman had told Vincent Rizza (a former Chicago police officer and bookmaker) that "his murder indictment 'was all taken care of," and that 'committing murder in Chicago was okay if you killed the right people.'" Id. at 618.
86. Ruling on Petitioners' Motion for Post-Conviction Relief, at 5, People v. Hawkins & People v. Fields, Nos. 85-C-6555 & 85-C-7651.
87. Id.; United States v. Maloney, 71 F.3d 645, 656-57 (7th Cir. 1995).
88. Aleman, 667 N.E.2d at 619.
89. Id.
90. If the agreement had been a sale of goods, there would be a sufficient risk of Wilson's non-performance that Aleman would have reasonable grounds for seeking additional assurances. U.C.C. § 2-608 (1994).
91. Amar & Marcus, supra note 52, at 55.
92. David Rudstein has previously argued that bribery does not eliminate the risk of conviction: [A] judge bribed by the defendant in a bench trial might change his mind after the start of the trial, return the bribe money, and, after hearing all the evidence, convict her. Or the judge might double-cross the accused and convict her while keeping the bribe money. . . . In none of these situations can it be argued that, because the defendant paid off the judge . . . prior to her trial, she was never in "jeopardy" at her trial. For she in fact was convicted. . . . Thus, even in a case in which the defendant bribed the judge in a bench trial, one or more jurors, or the prosecutor, she still runs the risk - albeit a reduced one - of being convicted. David S. Rudstein, Double Jeopardy and the Fraudulently Obtained Acquittal, 60 Mo. L. REV. 607, 639-40 (1995). Rudstein backs up his analysis, of course, by discussing Judge Maloney's willingness to convict and sentence to death defendants who had paid him money. Id. at 640 n.136.
93. Amar & Marcus, supra note 52, at 56.
94. It is inconsistent to treat corrupt acquittals as a nullity when corrupt convictions are treated as being valid.
95. As Rudstein has noted: [N]o appellate court would accept the claim by the defendant that her conviction should be reversed because a crooked judge, a corrupt juror, or a dishonest prosecutor failed to keep his end of the bargain and acquit her, vote to acquit her, or present a weak case against her, respectively. Id. at 640.
96. Defendants would still run the risk that after being convicted they would not be able to prove that the judge had been paid.
97. Aleman, 667 N.E.2d at 624 (quoting Breed v. Jones, 421 U.S. 519, 528 (1975)).
98. The analogous circumstances are detailed in this annotated string citation that follows the passage quoted in the text See Aetna Life Insurance Co. v. Lavoie, 475 U.S. 813 (1986) (invalidating a judgment of the Alabama Supreme Court because a justice on that court was a party to a similar case pending in an Alabama trial court and, therefore, the judge's pecuniary interest in the outcome of the case required new proceedings); Breed v. Jones, 421 U.S. 519, 528 (1975) (where pecuniary interests of judges have been involved in the cases, the results must be invalidated); In re Murchison, 349 U.S. 133, 136 (1955) (recognizing that "[f]airness 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"); Tumey v. Ohio, 273 U.S. 510, 521-32 (1927) (holding that defendant was entitled to a new trial where the trial judge received $12 by statute for each case which resulted in a conviction because "officers acting in a judicial . . . capacity are disqualified by their interest in the controversy to be decided . . ."). Id. at 625-26 (parallel cites omitted).
99. Amar & Marcus, supra note 52, at 55.
100. Id.
101. In the Aleman case, there is some uncertainty about the extent to which Aleman, himself, knew about and/or participated in the judicial corruption. The opinion merely says that two "1st Ward figures Pat Marcy and John D'Arco, Sr." asked Robert Cooley ("a former Chicago police officer and an attorney") "if he 'had a judge at 26th Street who could handle or take care of a case.'" Aleman, 667 N.E.2d at 618. It was Cooley who negotiated the deal with Judge Wilson. Even the opinion indicates that Aleman had illegal dealings with Cooley and Aleman bragged that "his murder indictment 'was all taken care of.'" Id. It is not clear that Aleman instigated the deal or knew of it in advance.
102. Akhil Amar in private conversation suggested this line of argument.
103. I can imagine, however, prosecuting the defendant for the independent crime of attempted bribery.
104. Bracy v. Gramley, 81 F.3d 684, 688 (7th Cir. 1996).
105. Bracy, 81 F.3d at 688.
106. Id.
107. An Assistant United States Attorney, Scott Mendeloff, described Maloney's reputation for ruthlessness: As a judge [Maloney] was tough and hard-nosed. . . . But one of the things that I have heard over and over again from lawyers in the community is that he took it far too far; that he was ruthless; that he heartlessly meted out sentences without any compassion. The only time there was compassion that we can see has to do with the times in which money was being passed. Bracy, 81 F.3d at 700 n.1 (Rovner, J., dissenting) (quoting United States v. Thomas J. Maloney & Robert McGee, No. 91 CR 477, Sentencing Tr. 559-60 (N.D. III. July 21, 1994) (remarks of Assistant United States Attorney Scott Mendeloff)).
108. Id. at 689. During oral argument, Justice O'Connor echoed this concern: "This judge handled 6,000 criminal cases. By [defendants'] standard, they are all out the window. We're talking about a lot of cases." Greenhouse, supra note 22, at 18.
109. Bracy, 81 F.3d at 689.
110. Id. at 689-90 (emphasis added). During oral argument before the Supreme Court, Justice Scalia has echoed Judge Posner's concern: Justice Antonin Scalia, who said that Mr. Bracy's case "rests on a series of assumptions that are not necessarily self - evident." Addressing Mr. Levy, the inmate's lawyer, Justice Scalia said he thought it just as likely that rather than punishing those who did not pay bribes, a judge taking bribes to favor some defendants would be lenient in other cases as well to avoid calling attention to his behavior. "He would look worse if he were a hanging judge in most cases and a bleeding heart in some," Justice Scalia said, adding: "The fact that he was dishonest when he was given money doesn't mean he was dishonest when he was not given money." Greenhouse, supra note 22, at 18.
111. As Judge Rovner observed: A judge who wishes to be tough on the defendant need not adopt the manner of the Tasmanian Devil to do it. Maloney was by no account stupid. . . . [I]f he wanted to cultivate a pro-prosecution record to protect his interests as a bribetaker, he had the ability to do so discretely, without appearing to have abused his discretion as a trial judge. . . . In this case there were plenty of issues that implicated Judge Maloney's discretion and thus his ability to influence the case against Bracy and Collins: the credibility questions presented by the petitioners' motion to suppress key evidence; the bolstering of prosecution witnesses; the collateral impeachment of defense witnesses; improper prosecution argument to the jury; the denial of a continuance prior to the sentencing hearing; and the refusal to sever the sentencing hearings. Bracy, 81 F.3d at 698-99, 701 n.3 (Rovner, J., dissenting).
112. Id. at 689.
113. However, given Maloney's willingness to broker corrupt deals as a lawyer in Aleman, Maloney's pattern of corruption may have extended through out his judicial tenure.
114. Bracy, 81 F.3d at 689.
115. Id. at 688 (citing Del Vecchio v. Illinois Dep't of Corrections, 31 F.3d 1363, 1372-73 (7th Cir. 1994)).
116. The three covered categories suggest a fourth problem of judicial corruption concerning acquitted non-payors: to wit, when can an acquitted non-payor be reprosecuted notwithstanding the Double Jeopardy Clause? While it would seem obvious that the correct answer should be "never," the logic of Judge Posner's Bracy opinion might suggest otherwise. If it is "equally possible" that a corrupt judge would avoid "creat[ing] a pattern of inconsistent rulings" by acquitting non-payors, Bracy, 81 F.3d at 689, then Posner might argue that prosecutors should have a right to attack the validity of acquittals not procured by payment. Hopefully readers can see that the errors in this argument further undermine the persuasiveness of Posner's original decision.
117. Bracy, 81 F.3d at 689.
118. Maloney's willingness to extort - backed up by his willingness to convict notwithstanding the evidence if he was not paid - is vividly illustrated in his treatment of lawyer William Swano. As described by Judge Rovner in her Bracy dissent [T]he notion that Maloney was deliberately tough on defendants who did not bribe him finds support in the testimony presented at Maloney's trial. Defense attorney William Swano arranged several of the bribes for which Maloney was prosecuted and was a key government witness against him. In 1985, Swano represented James Davis, whom the state had charged with armed robbery. The case was assigned to Maloney for trial. By this time, Swano had already bribed Maloney on a number of occasions. But after investigating the prosecution's case against Davis, Swano concluded that it would be unnecessary to bribe Maloney in order to obtain an acquittal in this case: three witnesses to the robbery knew the two perpetrators and said that Davis was not one of them; Davis had an alibi; and the victim of the crime, who had initially identified Davis as one of the perpetrators, had confessed uncertainty about the identification. Swano was confident that "the case was a not guilty in any courtroom in the building." United States v. Thomas J. Maloney and Robert McGee, No. 91 CR 477, Tr. 2528 (N.D. III. March 24, 1993). To Swano's surprise, however, Maloney convicted his client after a bench trial. Swano took this as a lesson that "to practice in front of Judge Maloney . . . we had to pay." Tr. 2530. . . . One may infer from Swano's testimony that Maloney saw the Davis prosecution, in which no bribe was tendered, as an opportunity to teach Swano a lesson that would ensure bribes in future cases. . . . [F]ixed cases were a source of illicit profit, whereas unfixed cases were an opportunity, as Bracy puts it, to "advertise" in the defense bar (Bracy Reply at 1). Id. at 697 (Rovner, J., dissenting). While Judge Rovner acutely understands that Maloney used the Davis case to induce Swano to pay in future cases, she insists on referring to these payments as "bribes" instead of "extortion."
119. Bracy v. Gramley, 117 S. Ct. 1793 (1997); People v. Titone, Circuit Court of Cook County, Ind. No. 83 C 127, Report of Proceedings heard before the Honorable Earl E. Strayhorn (July 25, 1997) [hereinafter Titone Proceedings]; United States ex rel. Aleman v. Circuit Court of Cook County, 967 F. Supp. 1022 (N.D. III. 1997).
120. Bracy, 117 S. Ct. at 1796. I had overnight mailed a draft of this paper to each of the justices shortly before this opinion was announced.
121. Id.
122. Id. at 1797.
123. Id. at 1799.
124. Titone Proceedings, supra note 110.
125. The court in Bracy stated: No right is more fundamental to the notion of a fair trial than the right to an impartial judge. "The truth pronounced by Justinian more than a thousand years ago, that 'impartiality is the life of justice,' is just as valid today as it was then." The constitutions of our nation and of our states, the rules of evidence and of procedure, and 200 years of case law promise a full panoply of rights to the accused. But ultimately the guarantee of these rights is no stronger than the integrity and fairness of the judge to whom the trial is entrusted. Bracy, 81 F.3d at 696 (Rovner, J., dissenting) (quoting United States v. Brown, 539 F.2d 467, 469 (5th Cir. 1976)).
126. Titone Proceedings, supra note 110, at 12.
127. Conversation with Thomas Geraghty (Sept. 18, 1997).
128. United States ex rel. Aleman v. Circuit Court of Cook County, 967 F. Supp. 1022 (N.D. III. 1997).
129. Id. at 1026 (citation omitted).
130. See Bracy, 81 F.3d at 697 (Rovner, J., dissenting).
131. See supra note 109.