The United States Court of Appeals for the Seventh Circuit ruled on Monday that a defendant tried with a co-defendant who paid $10,000 for an acquittal does not have to prove actual bias by the judge to obtain a new trial (article available here).
Robert Gacho was serving a life sentence after his conviction by a jury for the 1982 kidnapping and murders of two men. His co-defendant, who opted for a bench trial, was nonetheless convicted by the judge “as federal investigators began closing in,” the court said. The judge, Thomas Maloney of Cook County, Illinois, was convicted in 1993 for taking bribes in three murder trials and a felony case. The appeals court cited testimony that he also took a bribe from Gacho’s co-defendant, Dino Titone, who later won a new trial and was convicted a second time.
The appeals court ruled that “the acute conflict between Maloney’s duty of impartiality and his personal interest in avoiding criminal liability created a constitutionally unacceptable likelihood of compensatory bias in Gacho’s case.” The court held actual bias was not necessary.
“Constitutional claims of judicial bias also have an objective component: the reviewing court must determine whether the judge’s conflict of interest created a constitutionally unacceptable likelihood of bias for an average person sitting as judge,” the court wrote.