Corrupt judge not enough for new trial

By Lauraann Wood
Law Bulletin staff writer

A man who was convicted of murder and sentenced to life before a corrupt judge did not provide enough evidence to prove his constitutional rights were violated, a state appeals panel held Friday.
After a jury trial in 1984, defendant Robert Gacho was convicted of murder, armed robbery and aggravated kidnapping for his part in killing Tullio Infelise and Aldo Fratto in 1982.
He was initially sentenced to death but later received a life sentence after the Illinois Supreme Court affirmed his conviction but remanded his case for resentencing.
His case was tried separately but simultaneously with co-defendant Dino Titone, who elected to have a bench trial before former Cook County judge Thomas Maloney. Maloney was later indicted on bribery charges in 1991 in connection with a state and federal investigation into claims that judges were “fixing” trials.
Maloney was convicted in April 1993 of “fixing” three murder cases for more than $100,000 in bribe money in the Operation Greylord scandal.
Gacho argued in an evidentiary hearing stage post-conviction petition that he should get a new trial because Maloney’s corruption, among other things, deprived him of initially receiving a fair trial. But a 1st District Appellate Court majority affirmed the trial court’s decision to dismiss his petition, finding Gacho failed to present evidence outside of affidavits citing hearsay to prove his case.
The defendant first filed a post-conviction petition with his corruption claim in February 1991 on behalf of himself.
After new post-conviction counsel was appointed, Gacho supplemented his petition in July 2008 to include an affidavit from Titone’s father, which described the scheme in which the father paid Maloney $10,000 to find his son not guilty.
He also supplemented his petition with an affidavit from himself, asserting his pretrial attorney had also suggested Gacho bribe Maloney.
Cook County Circuit Judge Diane Gordon Cannon dismissed Gacho’s petition without an evidentiary hearing in May 2009. In 2012, a unanimous 1st District panel affirmed Cannon’s dismissal of one claim but remanded Gacho’s case for an evidentiary hearing on other pleadings, including his judicial corruption claim.
During that hearing, Gacho testified he retained new counsel after his previous attorney, Daniel E. Radakovich, lost interest in his case once he learned Gacho couldn’t come up with the money to bribe Maloney. Radakovich denied Gacho’s statements when he later testified as a witness for the state.
The court also heard testimony from a Menard Correctional Center inmate, who testified Titone told him about paying the $10,000 bribe.
Cannon accepted into evidence the affidavit from Titone’s father as well as other affidavits that supported Gacho’s claims before her on remand.
However, Cannon found Gacho’s testimony unbelievable and dismissed his petition in October 2013, finding he failed to demonstrate that his constitutional rights had been violated.
Gacho contended on appeal that Cannon’s ruling was “manifestly erroneous” in the face of evidence that showed a connection between Maloney’s bribe corruption and his personal interest in the outcome of Gacho’s trial — where a $10,000 bribe to find one co-defendant not guilty meant finding Gacho and other defendants, who were indicted but being tried separately, guilty.
However, the appellate panel’s majority opinion held Gacho failed to present direct evidence that Maloney actually solicited, received or agreed to accept a bribe to influence the rulings in his case, since he eventually found Titone guilty of the crime for which his father allegedly paid the judge for a not guilty verdict.
The panel ruled the evidence upon which Gacho relied wasn’t enough to support a claim that warranted relief pursuant to the Illinois Post-Conviction Hearing Act.
“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 [a]ct in the form of a new trial,” Justice Thomas E. Hoffman wrote in his 10-page majority opinion. “However, the defendant’s entire argument in this regard rests upon the affidavit of Titone’s father which consists of nothing more than hearsay.”
The fact that Titone’s father allegedly bribed Maloney for Titone’s trial did not inherently mean the judge wasn’t impartial during Gacho’s trial, the panel found.
It held Gacho would have been deprived of due process if Maloney harbored a compensatory bias against him during trial, but Gacho failed to prove a connection between Maloney’s corruption in other cases and any adverse findings in his. It also found Gacho failed to present evidence of any actual bias that resulted from Maloney’s conduct.
“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 [People v.] Fair,” Hoffman wrote. “There can be little doubt as to Maloney’s pervasive corruption in other cases … but Maloney’s pattern of bribe taking … cannot alone support an inference that he engaged in compensatory bias to the defendant’s case.”
Justice Mary K. Rochford concurred in the panel’s majority opinion.
However, Justice Mathias W. Delort wrote in his six-page dissent that Gacho shouldn’t need direct evidence to receive a new trial.
“Criminal defendants have the right to an impartial judge no matter how compelling the evidence against them,” he wrote, noting the U.S. Supreme Court has previously held it is not necessary for a defendant claiming judicial bias to show their judge was actually biased.
“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,’” Delort wrote.
Cannon’s ruling, Delort held, should be reversed because Gacho “clearly” showed a connection between Maloney’s conduct and the outcome of his case as well as an actual bias that arose from the conduct.
He cited the 1st District’s first opinion on Gacho’s case — which Hoffman also authored — that found both Gacho’s and Titone’s trials were both presided over by a man who the state conceded had an interest in the proceedings.
“We cannot view Gacho’s case in isolation, but instead acknowledge that the taint of Titone’s case fatally infected the entire proceeding,” Delort wrote. “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.”
Brett Zeeb, an assistant appellate defender in the 1st Judicial District Office who represents Gacho, said he and his client were disappointed in the majority’s ruling.
He said they agree with Delort’s dissent, which provides a good basis upon which they will “definitely” file a petition for leave to appeal before the Illinois Supreme Court.
Cook County Assistant State’s Attorneys Alan J. Spellberg and Jon J. Walters represented the state. A spokesperson in Cook County State’s Attorney Anita M. Alvarez’s office did not respond to a request for comment by time of publication.
The case is The People of the State of Illinois v. Robert Gacho, 2016 IL App (1st) 133492.