Robert Gacho v. Anthony Wills

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19-3343
R OBERT G ACHO,
Petitioner-Appellant,
v.
A NTHONY WILLS ,
Respondent-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 17 C 0257 — Robert W. Gettleman, Judge.
____________________
A RGUED NOVEMBER 5, 2020 — DECIDED F EBRUARY 8, 2021
____________________
Before S YKES , Chief Judge, and HAMILTON and S CUDDER ,
Circuit Judges.
S YKES , Chief Judge. Robert Gacho is serving a life sentence
for the 1982 kidnapping and murders of Aldo Fratto and
Tullio Infelise. Cook County Circuit Judge Thomas Maloney
presided in his case. Maloney was corrupt; for years he lined
his pockets by soliciting cash for acquittals. To deflect atten-
tion and up the ante for bribes, he came down hard on
defendants who could not (or would not) pay. Maloney’s

-- 1 of 19 --

2 No. 19-3343
corruption was exposed in 1991, and he was sent to federal
prison. Gacho has been pursuing state and federal collateral
relief ever since.
Gacho was charged and tried jointly with codefendant
Dino Titone, though the latter waived his right to a jury
verdict and opted for a decision from the bench. The reason
became clear later: Titone paid Maloney $10,000 for an
acquittal. But as federal investigators began closing in,
Maloney reneged and found Titone guilty. The jury returned
a guilty verdict against Gacho.
After Maloney was indicted, Titone won a new trial
based on judicial bias, but Gacho’s postconviction proceed-
ings dragged on for decades. In 2016 the Illinois Appellate
Court finally resolved his claims and denied relief. As
relevant here, the court rejected his due-process claim based
on Maloney’s corruption. The court held that Gacho needed
to prove that the judge was actually biased against him and
had not done so. A district judge reviewed that decision
under 28 U.S.C. § 2254 and denied habeas relief.
We reverse. The Due Process Clause secures a right to
trial before a fair and impartial judge. Evidence that the
presiding judge was actually biased is sufficient to establish
a due-process violation but it’s 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. Caperton v.
A.T. Massey Coal Co., 556 U.S. 868, 878–86 (2009). The state
court cited Caperton but ignored the objective test, holding
that Gacho’s failure to establish actual bias was fatal to his
claim.

-- 2 of 19 --

No. 19-3343 3
That ruling was contrary to federal law as explained in
Caperton, so we review the claim without deference to the
state court. We hold that the acute conflict between
Maloney’s duty of impartiality and his personal interest in
avoiding criminal liability created a constitutionally unac-
ceptable likelihood of compensatory bias in Gacho’s case.
The judge took a bribe from Gacho’s codefendant and
promised to rig the joint trial in his favor, then reneged to
evade detection. Under these circumstances Gacho—no less
than Titone—was deprived of his due-process right to trial
before an impartial judge. He is entitled to habeas relief.
I. Background
The history of this case spans almost four decades. We
traced the background when Gacho’s habeas proceedings
were last before this court. Gacho v. Butler, 792 F.3d 732, 733–
34 (7th Cir. 2015). Additional detail can be found in the
Illinois Supreme Court’s decision on direct appeal. People v.
Gacho, 522 N.E.2d 1146, 1150–52 (Ill. 1988). For present
purposes a summary will suffice.
On the morning of December 12, 1982, a DuPage County
forest ranger spotted a parked car in a remote area near the
Des Plaines River. Id. at 1150. As the ranger approached, he
heard pounding coming from inside the trunk. He sum-
moned the police, and together they opened the trunk,
finding Fratto and Infelise inside, both bound and shot
multiple times. Fratto was dead, and Infelise was barely
conscious. When the ranger asked Infelise who did this to
him, he replied, “Robert Gott or Gotch,” “Dino,” and “Joe.”
Id. at 1150–53. Infelise died of his wounds about two weeks
later.

-- 3 of 19 --

4 No. 19-3343
Gacho was arrested and confessed. Together with Titone
and Joe Sorrentino, he was charged in Cook County Circuit
Court with kidnapping, armed robbery, and double murder.
Gacho moved to suppress his confession, claiming that the
police beat him and ignored his request for counsel. Id. at
1152–54. That motion failed. Id. at 1154. In addition to the
confession, the prosecution’s case included testimony from
Gacho’s girlfriend, who had witnessed the key events. Id. at
1157–61.
The case against Sorrentino was severed, but Gacho and
Titone were tried jointly in Judge Maloney’s court. The
proceedings had an unusual twist: the charges against
Gacho were submitted to the jury, but Titone waived a jury
verdict and requested a decision from the bench. Both men
were found guilty and sentenced to death. The Illinois
Supreme Court vacated Gacho’s death sentence, id. at 1166,
and on remand he was resentenced to life in prison.
As the world now knows, Judge Maloney was corrupt.
The Operation Greylord undercover investigation caught
Maloney in a long-running shakedown. Throughout the
1980s he solicited and accepted bribes to fix cases. In 1991 a
federal grand jury indicted him on racketeering and extor-
tion charges; he was convicted in 1993 and sentenced to a
15-year term in federal prison. Bracy v. Gramley, 520 U.S. 899,
901–02 (1997); see also United States v. Maloney, 71 F.3d 645,
650–52 (7th Cir. 1995). He died in 2008 not long after his
release from custody.
Maloney’s willingness to take bribes for acquittals had a
sinister flip side. To deflect suspicion from his criminal
scheme and give defendants an incentive to cough up bigger
bribes, Maloney built a reputation as one of the most ruth-

-- 4 of 19 --

No. 19-3343 5
less judges on the Cook County bench. We detailed his
propensity to engage in so-called “compensatory” or “cam-
ouflaging” bias in our decision in Bracy v. Schomig, 286 F.3d
406, 412 (7th Cir. 2002) (en banc). Bracy involved a different
murder case in Maloney’s court, but we discussed the judge’s
misconduct in the Titone case and the effect of “camouflag-
ing” bias, explaining that Titone “gave Maloney a $10,000
bribe, but Maloney convicted him anyway,” and that a state
trial judge later vacated Titone’s conviction “because
Maloney had a motive to convict Titone to deflect suspicion
from himself.” Id.
Meanwhile, Gacho—the man sitting next to Titone at tri-
al—also sought state collateral relief, but the proceedings
moved at a glacial pace. He filed a pro se postconviction
motion in 1991 soon after the indictment against Maloney
was unsealed. Among other claims, he alleged a due-process
violation arising from Maloney’s corruption; he also asserted
that Daniel Radakovich, his attorney, pressured him to raise
$60,000 to bribe Maloney, but he was unable to come up with
the money. Gacho amended his petition through appointed
counsel in 1997 and again in 2008. The Cook County Circuit
Court dismissed Gacho’s petition in 2009, but the Illinois
Appellate Court reversed the dismissal of the judicial-bias
claim and remanded for an evidentiary hearing.1 People v.
Gacho, 967 N.E.2d 994, 1004 (Ill. App. Ct. 2012).
1 The court also remanded for an evidentiary hearing on Gacho’s claim
that his attorney’s conflict of interest amounted to constitutionally
ineffective assistance of counsel. The state court eventually rejected this
claim too, as did the district judge in this § 2254 proceeding. Gacho asks
us to review that claim, but it is not within the scope of his certificate of
appealability, which is limited to the judicial-bias claim.

-- 5 of 19 --

6 No. 19-3343
The hearing focused on Maloney’s bias. Gacho testified
about Radakovich’s recommendation to bribe Maloney; he
also submitted affidavits from his mother and aunt (both
now deceased) stating that Radakovich had approached
them about raising money for a bribe. Gacho testified that
when he and his family were unable to come up with the
money, Radakovich became disinterested in his case.
Radakovich, testifying for the state, denied having any
conversation with Gacho or his family about a bribe and
asserted that he was actively involved in Gacho’s defense.
Gacho also presented evidence that Titone bribed
Maloney. In an affidavit, Titone’s father stated that he paid
Maloney $10,000 to “fix the case.” He also stated:
Judge Maloney was coming up for an election
for judicial retention in the fall of 1984. [Dino
Titone’s attorney] said that as long as Maloney
got two out of the three it would be enough.
This meant that as long as my son’s two co-
defendants (Robert Gacho and Joe Sorrentino)
were found guilty, Judge Maloney could get
away with letting Dino go free and Judge
Maloney could still get elected.
Following the hearing, the judge credited Radakovich’s
testimony, discredited Gacho’s, and denied relief.
The Illinois Appellate Court affirmed. People v. Gacho,
53 N.E.3d 1054 (Ill. App. Ct. 2016). The court deferred to the
postconviction judge’s refusal to credit Gacho’s testimony
that Radakovich proposed bribing Maloney to fix his case.
Id. at 1061. The court accepted, however, that Titone bribed
Maloney. Id. (citing Bracy, 286 F.3d at 412, and United States

-- 6 of 19 --

No. 19-3343 7
ex rel. Titone v. Sternes, No. 02 C 2245, 2003 WL 21196249, at
*1 (N.D. Ill. May 15, 2003)).
With that factual premise in place, the court addressed
Gacho’s claim of compensatory judicial bias. The court noted
Caperton’s objective standard but did not apply it, holding
instead that a claim of compensatory bias requires evidence
that the judge was “actually biased in the defendant’s own
case.” Id. at 1063. The court explained that the postconviction
judge had considered “the possibility that Maloney com-
promised [Gacho’s] rights during the trial but could not find
one questionable ruling,” and that Gacho had “failed to
bring any questionable ruling to this court’s attention.” Id.
(quotation marks omitted). Finding no evidence that
Maloney was actually biased against Gacho as a result of the
bribe from his codefendant, the court rejected the claim. Id.
The Illinois Supreme Court denied review.
Gacho sought habeas review under § 2254.2 He raised
18 claims, including a due-process claim based on Maloney’s
corruption. In a lengthy opinion, the district judge rejected
each one. Regarding the judicial-bias claim, the judge con-
cluded that the state court’s application of an actual-bias
2 Gacho also petitioned for federal habeas relief in 1997, 1999, 2007, and
2013 based on the delay in his state-court postconviction proceedings.
The district court declined to excuse Gacho from the requirement that he
exhaust state remedies, concluding that much of the delay was attributa-
ble to Gacho’s counsel and that after the state court’s initial ruling in
2009, the proceedings appeared to move at a reasonable pace. Gacho v.
Harrington, No. 13 C 4334, 2013 WL 5993458, at *2 (N.D. Ill. Nov. 7, 2013).
Gacho asked us to review that decision, but we dismissed his appeal
because the district court’s order was nonfinal. Gacho v. Butler, 792 F.3d
732, 737 (7th Cir. 2015).

-- 7 of 19 --

8 No. 19-3343
requirement, though questionable, was not contrary to or an
unreasonable application of federal law. See § 2254(d). The
judge denied relief across the board but granted a certificate
of appealability on the judicial-bias claim. Gacho appealed,
and we appointed counsel for him under the terms of the
Criminal Justice Act, 18 U.S.C. § 3006A(a)(2)(B).
II. Discussion
Federal-court review of state convictions is limited in
scope. Section 2254(d)(1) provides that a federal court may
not grant habeas relief on any claim that the state court has
adjudicated on the merits unless the state court’s decision
was “contrary to, or involved an unreasonable application
of, clearly established Federal law, as determined by the
Supreme Court of the United States.” As relevant here, a
state court’s decision is “contrary to” clearly established
federal law “if it applies a rule that contradicts the governing
law set forth in [Supreme Court] cases.” Brown v. Payton,
544 U.S. 133, 141 (2005). If a state prisoner surmounts the
high bar set by § 2254(d)(1), then we review his claim de
novo under the traditional habeas standard, asking whether
“he is in custody in violation of the Constitution or laws or
treaties of the United States.” § 2254(a); Mosley v. Atchison,
689 F.3d 838, 853 (7th Cir. 2012).
A. Due Process and the Conflicted Judge
“It is axiomatic that ‘[a] fair trial in a fair tribunal is a
basic requirement of due process.’” Caperton, 556 U.S. at 876
(quoting In re Murchison, 349 U.S. 133, 136 (1955)). Most
judicial conflict-of-interest issues are governed by standards
set in state and federal disqualification statutes and judicial
codes of conduct, but the Due Process Clause sets a constitu-

-- 8 of 19 --

No. 19-3343 9
tional baseline. Id. at 876–77; see U.S. C ONST. amend. V; see id.
amend. XIV, § 1.
This case turns on the distinction between the subjective
and objective components of the framework for evaluating
the constitutional implications of judicial conflicts of interest.
The central question is this: Must a litigant prove actual bias
to establish that his trial before a conflicted judge violated
his right to due process, or does the doctrinal test also entail
an objective inquiry? The Supreme Court’s decision in
Caperton marked a watershed in this body of constitutional
law by making clear that testing for actual, subjective bias is
not the end of the inquiry; “the imperatives of due process”
require application of an objective standard in all cases,
“whether or not actual bias exists or can be proved.” 556 U.S.
at 886.
To understand Caperton’s significance, it’s useful to step
back and trace the decades of caselaw leading up to it.
Before Caperton the Court had historically recognized two
categories of cases in which a risk of bias, rather than actual
bias, triggered constitutional scrutiny. The first category
comprises the pecuniary-interest cases—adjudications by
judges with a financial interest in the outcome. The earliest
case of this type, Tumey v. Ohio, 273 U.S. 510 (1927), involved
a small-town mayor who was authorized to preside over
trials for unlawful possession of alcoholic beverages and
received a salary bonus for each conviction, with the funds
coming from the fines he imposed and the balance going
into the municipal fisc, id. at 520–22. This arrangement, the
Court observed, created an “official motive to convict and to
graduate the fine to help the financial needs of the village.”
Id. at 535.

-- 9 of 19 --

10 No. 19-3343
The Court explained that the Due Process Clause incor-
porates the common-law principle that a judge with a “di-
rect, personal, [and] substantial pecuniary interest” in a case
is disqualified from hearing it. Id. at 523. Extrapolating from
this principle, the Court held that the mayor–judge’s direct
pecuniary interest in the outcome of the cases—more specifi-
cally, his pecuniary interest in convictions—violated the due-
process rights of persons who came before him accused of
alcohol-possession violations. This was so whether or not the
judge was actually biased:
There are doubtless mayors who would not al-
low such a consideration as $12 costs in each
case to affect their judgment in it, but the re-
quirement 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 in-
justice. 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.
Id. at 532.
Since Tumey, the Court has expanded the understanding
of what it means to hold a “direct” and “substantial” pecu-
niary interest in the outcome of a case. For example, in Ward
v. Village of Monroeville, 409 U.S. 57 (1972), the Court consid-
ered a mayor–judge scheme similar to the one at issue in
Tumey but minus the salary supplement. The Court began by

-- 10 of 19 --

No. 19-3343 11
explaining that the absence of a personal pecuniary interest
did not change the analysis. “The fact that the mayor [in
Tumey] shared directly in the fees and costs did not define
the limits of the [due-process] principle.” Id. at 60. Rather, an
unacceptable “temptation” to convict “may also exist when
the mayor’s executive responsibilities for village finances
may make him partisan to maintain the high level of contri-
bution from the mayor’s court.” Id. “This, too,” the Court
held, “is a ‘situation in which an official perforce occupies
two practically and seriously inconsistent positions, one
partisan and the other judicial, [and] necessarily involves a
lack of due process of law in the trial of defendants charged
with crimes before him.’” Id. (quoting Tumey, 273 U.S. at
534).
The Court went even further in Aetna Life Insurance Co. v.
Lavoie, 475 U.S. 813 (1986). There a justice on the Alabama
Supreme Court was a plaintiff in two lawsuits against
insurance companies alleging bad-faith failure to pay claims;
one suit was brought as a proposed class action and both
sought punitive damages from the insurers. Id. at 817. While
the suits were pending, the justice cast the deciding vote in
favor of the plaintiffs in a case raising nearly identical legal
issues about insurers’ bad-faith failure to pay claims. Id. at
822. The Supreme Court held that the justice’s role as a
plaintiff in a highly similar case gave him a “direct, personal,
substantial, [and] pecuniary” stake in the case before his
court. Id. at 824 (quoting Ward, 409 U.S. at 60). The Court
emphasized that it was not necessary to decide whether the
justice was in fact biased but only whether the conflict of
interest “would offer a possible temptation” to the average
judge to tip the balance in the plaintiffs’ favor. Id. at 825
(quoting Ward, 409 U.S. at 60). Applying this objective test,

-- 11 of 19 --

12 No. 19-3343
the Court held that the justice’s participation in the case
violated the insurer’s right to due process. Id.
The second set of cases in which charges of judicial bias
traditionally raised constitutional concerns includes those in
which the conflict arose by virtue of the judge’s prior partic-
ipation in the proceedings. Murchison, 349 U.S. 133, the so-
called “one-man grand jury” case, is an example. There a
judge sitting as a secret “judge–grand jury”—a procedure
permitted by state law—interrogated two witnesses, charged
them with perjury and contempt, then tried and convicted
them. Id. at 135. Applying Tumey, the Court needed only a
few short paragraphs to reject this procedure as inconsistent
with the requirements of due process. Id. at 136–37. Such a
system, the Court reasoned, violates the principle that “no
man can be a judge in his own case.” Id. at 136. The Court
concluded: “A fair trial in a fair tribunal is a basic require-
ment 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 un-
fairness.” Id.; see also Mayberry v. Pennsylvania, 400 U.S. 455,
465 (1971) (holding that a judge who charged a litigant with
contempt for salacious personal attacks could not preside
over the litigant’s contempt proceedings because “[n]o one
so cruelly slandered is likely to maintain that calm detach-
ment necessary for fair adjudication”).
Each of these cases applied an objective standard, though
it was phrased in a variety of ways. In Tumey the Court
focused on the “possible temptation” to bias, 273 U.S. at 532;
in Murchison the Court examined the “practical” difficulty of
remaining free from bias, 349 U.S. at 138; in Mayberry the
Court considered the “likel[ihood]” of a fair adjudication,

-- 12 of 19 --

No. 19-3343 13
400 U.S. at 465. Regardless of how the standard was phrased,
proof of actual bias was not required.
B. Caperton v. A.T. Massey Coal Co.
That’s where things stood before Caperton. Courts debat-
ed whether the objective inquiry applied broadly or was
limited to pecuniary-interest and criminal-contempt cases.
Compare Railey v. Webb, 540 F.3d 393, 413 (6th Cir. 2008)
(describing the probability-of-bias rule as limited to “only
two (perhaps three), very specific situations”), and Crater v.
Galaza, 491 F.3d 1119, 1131 (9th Cir. 2007) (similar), with Jones
v. Luebbers, 359 F.3d 1005, 1012–13 (8th Cir. 2004) (applying
Tumey’s and Murchison’s potential-for-bias rule generally,
including to an allegation that a trial judge’s feud with a
public defender created an unconstitutional risk of bias), and
Bracy, 286 F.3d at 434–35 (Rovner, J., concurring in part and
dissenting in part) (proposing that Tumey, Murchison, and
Lavoie support applying an objective, possibility-of-bias
approach to compensatory-bias claims).
Caperton settled the debate, making clear that the objec-
tive standard applies uniformly as an implementing doctrine
for the constitutional guarantee of due process. 556 U.S. at
881–87. The specific conflict of interest at issue in Caperton
raised a question unique to elected state judiciaries: When (if
ever) does an elected judge have a due-process obligation to
recuse himself because of campaign contributions? The facts
of the case placed the problem in sharp relief. The plaintiff
Hugh Caperton won a $50 million judgment against
A.T. Massey Coal Co. As the coal company’s appeal wound
its way to the West Virginia Supreme Court, CEO Don
Blankenship created an independent political action commit-
tee to defeat an incumbent justice and elect his challenger. Id.

-- 13 of 19 --

14 No. 19-3343
at 873. Blankenship contributed $3 million to that effort,
which dwarfed the total spending by the campaign commit-
tees of both candidates combined. Id. The investment paid
off. The challenger, Brent Benjamin, was elected. Id.
Caperton moved to disqualify the new justice, arguing
that recusal was required under the judicial code of conduct
and as a matter of due process. Id. at 873–74. Justice
Benjamin denied the motion. The state supreme court even-
tually ruled for the company and reversed the $50 million
verdict, with Benjamin casting the decisive vote. Id. at 874–
75.
The Supreme Court reversed, holding that Justice
Benjamin’s participation violated Caperton’s right to due
process. Id. at 885–87. After surveying its due-process cases
regarding conflicted judges, the Court explained that consti-
tutional claims based on judicial bias have both subjective
and objective components. The existence of actual bias, of
course, requires recusal as a matter of due process, but the
subjective inquiry “is just one step in the judicial process;
objective standards may also require recusal whether or not
actual bias exists or can be proved.” Id. at 886. Mapping the
objective test onto the campaign-contribution question, the
Court held that “[d]ue process requires an objective inquiry
into whether the contributor’s influence on the election
under all the circumstances ‘would offer a possible tempta-
tion to the average … judge to … lead him not to hold the
balance nice, clear[,] and true.’” Id. at 885 (quoting Tumey,
273 U.S. at 532).
Applying that standard to the case at hand brought two
key facts to the surface: Blankenship’s enormous monetary
contribution had a “significant and disproportionate influ-

-- 14 of 19 --

No. 19-3343 15
ence” on Justice Benjamin’s successful campaign, and the
coal company’s challenge to the $50 million judgment was
then pending and soon would be before the state supreme
court. Id. at 885–86. This combination of circumstances
created a “serious, objective risk of actual bias that required
Justice Benjamin’s recusal.” Id. at 886.
It did not matter that Justice Benjamin had “conducted a
probing search” and concluded that he was not biased. Id. at
882 (“We do not question his subjective findings of impar-
tiality and propriety. Nor do we determine whether there
was actual bias.”). Instead, the Court emphasized the need
for an objective test:
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. … 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 ac-
tual bias. In defining these standards the Court
has asked whether, “under a realistic appraisal
of psychological tendencies and human weak-
ness,” the [conflict of] 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.”
Id. at 883–84 (emphasis added) (citations omitted) (quoting
Withrow v. Larkin, 421 U.S. 35, 47 (1975)). In the end, the
Court stated its rule broadly and bluntly: “The failure to

-- 15 of 19 --

16 No. 19-3343
consider objective standards requiring recusal is not con-
sistent with the imperatives of due process.” Id. at 886.
The Court emphasized that the circumstances in the case
were “extreme by any measure,” id. at 887, adding that the
objective constitutional standard does not displace codes of
conduct and disqualification statutes as the primary sources
of rules for most conflict-of-interest questions, id. at 890.
“Because the codes of judicial conduct provide more protec-
tion than due process requires, most disputes will be re-
solved without resort to the Constitution.” Id. Still, “extreme
cases are more likely to cross constitutional limits, requiring
this Court’s intervention and formulation of objective stand-
ards. This is particularly true when due process is violated.”
Id. at 887.
C. The Illinois Appellate Court’s Decision and § 2254
The Illinois Appellate Court acknowledged Caperton but
declined to apply the objective standard. Instead, the court
concluded that the Supreme Court’s decision in the Bracy
litigation controlled. Gacho, 53 N.E.3d at 1062–63 (citing
Bracy, 520 U.S. at 908–09). Moreover, the court read Bracy to
require proof of actual bias in all claims of compensatory
bias.
That ruling was contrary to both Caperton and Bracy.
First, as we have already explained at length, Caperton
announced a general rule: Due-process claims based on
judicial bias require an objective assessment of the likelihood
of bias, not just a subjective assessment of actual bias. Noth-
ing in the Court’s opinion suggests that it was limiting the
application of this rule to campaign-contribution cases. To
the contrary, the Court’s reasoning rested largely on concerns

-- 16 of 19 --

No. 19-3343 17
about the administrability of a rule requiring proof of actual
bias, see 556 U.S. at 883, and those concerns are present in all
cases.
Second, the state court’s reading of Bracy was mistaken.
True, Bracy involved a claim of compensatory bias in another
case tried in Judge Maloney’s court; William Bracy alleged
that Maloney engaged in camouflaging bias in his case to
conceal his bribes in other cases. 520 U.S. at 905. The issue
before the Court, however, was quite narrow. The case
concerned only whether Bracy had made an adequate
preliminary showing of Maloney’s bias to establish good
cause to take discovery on his claim. The Court held that he
had done so and was entitled to discovery. Id. at 909. In other
words, the Court’s discussion of actual bias made sense in
context because Bracy had supported his discovery request
with some evidence of Maloney’s actual bias in his case.
Bracy thus stands for the unsurprising proposition that
evidence of actual bias is sufficient to establish a due-process
violation, but it does not follow that actual bias is a necessary
condition for relief. That is, the Court was not silently limit-
ing Tumey, Murchison, and other cases that applied an objec-
tive risk-of-bias standard. It had no reason to address the
objective standard because the facts at hand suggested more.
For all these reasons, Gacho has satisfied § 2254(d). The
state court’s decision was contrary to federal law as estab-
lished by the Supreme Court in Caperton and Bracy. We
therefore review his claim de novo. Applying the objective
standard, we ask “whether the average judge in [Maloney’s]
position is ‘likely’ to be neutral, or whether there is an
unconstitutional ‘potential for bias.’” Caperton, 556 U.S. at
881. Judicial-bias claims are not subject to harmless-error

-- 17 of 19 --

18 No. 19-3343
review, Edwards v. Balisok, 520 U.S. 641, 647 (1997), so Gacho
is entitled to relief if the judge’s conflict of interest created a
constitutionally intolerable likelihood of compensatory bias
in his case.
We begin with the obvious and important observation
that Titone’s bribe cannot be separated from Gacho’s case.
Everyone accepts that Titone did not get a fair trial because
of the bribe, yet the State asks us to conclude that the same
judge—ruling on the admissibility of the same evidence,
presiding over the examination of the same witnesses, and
imposing sentence on both defendants—could have been
neutral in Gacho’s case. That defies practical reason. Any
decisions Maloney made in Titone’s case based on his desire
to deflect scrutiny from the Operation Greylord investigators
would necessarily affect Gacho too. It is irrelevant that
Gacho was convicted by a jury rather than Maloney himself.
Cartalino v. Washington, 122 F.3d 8, 10 (7th Cir. 1997); cf. Ward,
409 U.S. at 61–62 (holding that an opportunity for impartial
appellate review does not excuse the trial judge’s bias). No
reasonable person could accept that Maloney would be
neutral in the joint trial after he accepted a bribe from
Gacho’s codefendant and then reneged on the deal out of
self-preservation.
To be sure, Caperton emphasized that the due-process line
is crossed in only extreme cases. 556 U.S. at 887, 890. But
Maloney’s bribery scheme was at work in this very case, so
the circumstances can fairly be called extreme. Bracy,
286 F.3d at 411 (“Maloney’s dereliction of duty casts … an
unusual light and makes it hard to put Maloney in any
normal framework.”). We’re satisfied that the likelihood of

-- 18 of 19 --

No. 19-3343 19
compensatory bias was too great to be constitutionally
tolerable.
Accordingly, Gacho was deprived of his due-process
right to be tried before a fair and impartial judge. We
R EVERSE the district court’s judgment and R EMAND with
instructions to grant the writ.

-- 19 of 19 --