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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¶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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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
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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
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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.
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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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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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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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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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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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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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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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