George Del Vecchio, Cross-Appellee v. Illinois Department of Corrections

City offi- at best. speculative seem would of loss net claim of own plaintiffs ble. longer they no that this had determined most, cials reflected at earnings in when Chief Police an $42,472.00 less “income/other needed Assistant of figure a (although the $37,601.00. Jackson mandatorily retired $4871 of sources” age consider- inappropriate jury found aas award pay the back only should Not action). In the part latter a played ations $37,601to reflect to be reduced lawof matter appointee sub- political a short, was Jackson earnings so of other by reason mitigation the politics town of local to the vicissitudes ject earnings should of future loss annual the year from position his to continue Multiplying in $37,601. order at pegged been Jackson, unlikely that gross It seems year. a to produce by would eleven amount this physi- still he were pres- to now years from subject to discount $413,611 eleven figure of serving as Cookeville’s cally and able value. ent receiving Chief, be would Police Assistant court, I district of the award reduced annually.5 $65,000 approximately fac- equitable these believe, into account took present necessary status, reduction if he continued and tors on Jackson’s Based stated, this submit, the reasons employee, for his work, I “at will” value. as police and plaintiff to the ability award health, prove a reasonable of uncertain Jackson of discretion. no specu- abuse income, and represented and doubt mitigating earn mitiga- and conceded salary established himself future of his amount as to the lation reduction. tion to continue able might be years he and the Cooke- needed in may not not job probably jury work in suggesting I am not award court’s of district ville, in a case I would affirm award a reasonable make reasonable, ap- and of nature equitable, pay, but as front to Jackson type therefore, attorney should, affirm and I also equitable would propriate. is award of the supervision court. close district subject to the award fee made see discretion its sound and district reasonable appropriate, award disputed that It not excessive. precise court’s district jury ignored of amount to reduce instructions proper rather, but, value, VECCHIO, Petitioner- present earnings George DEL future pro- gross Cross-Appellee, multiplied Appellant, Jackson’s simply raise, by including a eleven salary, spective Jackson testified years of number “the OF DEPARTMENT ILLINOIS work.” to continue planned he Respondent CORRECTIONS, here, we looking at the circumstances Cross-Appellant. -Appellee, been previously had Jackson observe 92-2553, 92-2622. Nos. per- to a of Police due from Chief demoted served hadHe situation.4 Appeals, morale low ceived States United of Police and Chief Assistant as Chief and Circuit. Seventh the will He served police officer. 5,May 1993. Argued so Manager City Cookeville pleasure 26, 1993. Oct. Dеcided indefinite assured expectation of had no Po- Chief as Assistant employment future 1994. Feb. En Banc Argued practicalities look must also We lice. 19, 1994. July Decided Tennessee, Cookeville, this case— 22,700 likelihood population al- salary that pay a raises continued capita per $2 to almost ready amounted increment salary increase same Applying the posi- 5. from was "demoted” Jackson 4. Twice years the next eleven exceeding 1991 over 1990 to and, again, of Police—one tion Chief $66,000 in salary produce in mid-1989.

1367 joined by MANION, Judge, Circuit COFFEY, BAUER, POSNER, EASTERBROOK, and KANNE. George sentenced Illinois state An convicting him of to death after Del Vecchio filed boy. He six-year-old murdering a corpus of habeas for writ petition proceedings court, claiming district constitu- were his death sentence leading to court denied The district tionally deficient. claims ex- constitutional Del Vecchio’s all of determined district court cept one: the evidentiary entitled Del Vecchio a confes- voluntariness of hearing to test murder. for an earlier had given sion appeal Illinois Both por- the affirm We court’s decision. district denying court’s decision of the district tion court’s the district but reverse petition, the hearing. evidentiary for an remand Background I. George Vecehio’s Del involves appeal

This sentence. and death murder conviction The first murder. second was his But this February while Del early occurred were on companions young and two Vecchio day, spree. On second two-day crime Christiansen, an upon Fred they happened murder man, decided elderly whom Christiansen Mr. shot Del Vecchio and rob. kicked accomplices times, as his nine They help. for his cries dying man silence wallet. Mr. Christiansen’s $11 recovered Margaret Kennelly (argued), F. Matthew Vecchio, and he ad- Del arrested police Tighe & Cotsirilos, Stephenson, Paris, L. murder. to the mitted IL, George Del Vec- Streicker, Chicago, for publicity chio. enormous received crime claimed Del Vecchio Chicago area. (ar- Anderson, Atty. Gen. Asst. C. Arleen money he when drug looking for he was Gen., Madsen, Atty. Asst. M. Terence gued), still it was In 1965 Mr. Christiansen. killed Gen., Appeals Atty. Criminal of the Office committed men young when front-page news Goldfarb, Renne G. Div., Dillery Hynes, Sara money. drug gain of violence acts random Div., Chica- Atty., Civil County State’s Cook Attorney handled County State’s The Cook of Correc- IL, Department Illinois go, Garippo was Louis prosecution. tions. in that office. division criminal of the chief trial to his former assigned the He POSNER, Judge, and Chief Before prose- supervised generally and CUDAHY, partner, BAUER, CUMMINGS, prosecu- provided Del RIPPLE, Vecchio EASTERBROOK, cution. COFFEY, According to confession. a written ROVNER, tors with KANNE, Circuit MANION, and right his Vecchio, advised was not he Del Judges.* * case. or decision argument participate in the did not Flaum Joel M. Hon. to counsel in in Mi prescribed the manner Unfortunately, Del good Vecchio’s behav- Arizona,

randa ior prison ended at the exit. In 1602, 16 (1966), again. struck L.Ed.2d 694 This which was time his decid victim was six- year-old Tony following year. Early ed the Canzonieri. one morn- ing, Del Vecchio broke into apartment years Del Vecchio was sixteen old when he Canzonieri, Tony’s mother, Karen apparently murdered Mr. early Christiansen in Febru- intending rape her. Del Vecchio knew ary of 1966. He was to turn seventeen on fact, Karen. he had made a visit to the March lawyer 1966. His considered it apartment before, night where he and important that Del be convicted and others marijuana. had smoked When he sentenced before birthday. his seventeenth apartment broke into morning, next way, That Del Vecchio would be sent to a he came young Tony across on the first floor. youth facility correctional twenty- until his Apparently Del Vecchio Tony did not want birthday. Only first given then would he be way Karen, when he so he an adult sentence sent prison. and to an adult killed brutally him. He boy’s slashed the § IU.Rev.Stat. By throat, Ch. con- severing trachea, his artery, carotid trast, person jugular sentenced after his vegus nerve, seven- vein and and fracturing birthday teenth immediately would third and receive fourth vertebrae —a near de- capitation. an adult sentence and be sent to an adult Vecchio then Tony’s stuffed prison. body in crawlspace Del Vecchio’s attorney way met with made his upstairs bedroom, Louis him to Karen’s told raped where he her. plead Karen was guilty escape able to agree call to immediate police when Del sentencing if Vecchio left her alone for case could wrapped up moment. police When the before Garippo agreed they March 1. arrived expedite to found Del hiding Vecchio on indictment, the the roof. welcoming His quick such a reso- first being were, on captured words “I didn’t lution high-profile of the case. kill nobody.” Del charged adult; Vecchio was as an he In the time of the Canzonieri murder pleaded guilty and was before his sentenced trial, Garippo job Louis left had his with the seventeenth birthday. Because he was sen- State’s Attorney and had judge become seventeen, tenced before turning giv- he was County the Cook Criminal Division. He en over to the Illinois Youth Commission randomly was preside selected to over Del placed which him youth correctional Vecchio’strial for the murder Tony Canzo- facility. After he age twenty-one, reached nieri. He neither recused himself from the Del Vecchio was sent back to court to receive ease, nor informed attorneys Del Vecchio’s an adult sentence. The judge presiding had about his involvement in prosecu- the 1965 broad discretion when sentencing the admit- tion. trial, Before the Del Veechio’s attor- ted murderer. He could have sentenced Del neys made motions in limine to exclude evi- Vecchio ato years minimum fourteen or a pеrtaining dence to the 1965 conviction and maximum of life in prison. parties The do They confession. asserted three reasons to dispute not that exactly this is range of preclude the evidence: that relating the facts discretion a in 1966 would have had if to the 1965 confession and conviction were Del Vecchio had been sentenced after his murder; irrelevant to the 1977 birthday. seventeenth During stay at the confession had been involuntary taken in youth facility, Del Vecchio had achieved a Miranda(cid:127); violation of and that the law in sterling record and the apparently juveniles 1965 which allowed charged to be took that into consideration. He sentenced as adults was Judge unconstitutional. Garip- Del Vecchio to statutory minimum of po ruling matters, withheld on these but let years fourteen prison. an adult He was the defense know that likely he would allow credited with time served and since he con- evidence about 1965 case if the defense inmate, tinued to be a model paroled he was introduced evidence that Del Vecchio was April years a few after he insane at the time of the Although murder. had been sentenced. groundwork laid defense argue Del Vecchio, Del People v. sentence. death presented insanity, never Veeehio’s 475 N.E.2d Ill.Dec. Ill.2d attempted never the state So defense. Supreme Court (1985). States The United mur- about the evidence introduce 883, 106 S.Ct. 474 U.S. certiorari. denied offi- Therefore, Garippo never Judge der. (1985). Mar Justices 88 L.Ed.2d the trial phase of during guilt cially ruled order. dissented Brennan shall and evidence. preclude the the motions on Del was position that Vecchio They took Del against Vec- presented evidence hearing in the sen evidentiary an entitled Having overwhelming. trial was at the chio trial, challenge the 1979 tencing phase of defense, really he insanity abandoned Id. the 1965 confession. the voluntariness theory of defense. persuasive no had Judge Del discovered Vecchio Tony’s mur- for Del Vecchio jury convicted prose in his 1965 involved been to the sen- proceeded then The case der. legal theo other on that and cution. Based testimony and which involved tencing phase, for new trial ries, petitioned whether Del about evidence other Hearing Post-Conviction the Illinois under sought to The state put to death. should Ill.Rev.Stat.1985, 122-1 et paras. Act, ch. mur- concerning the 1965 evidence introduce petition and dismissed seq. The court attorneys chal- Again, Del Vecchio’s der. affirmed. 129 the Illinois Garippo, Judge believ- lenged the evidence. 544 N.E.2d 135 Ill.Dec. Ill.2d jurors to for important ing that it was (1989). States Su again, United Once history when violent Del Veeehio’s consider denied certiorari. preme Court decision, ruled sentencing they made their (1990). L.Ed.2d Pursuant admissible. the evidence exhausted, finally appeals direct His introduced government ruling, for writ habeas petition confession, filed in Vecchio 1965 written Del Vecehio’s He made two court. corpus in the district killing Mr. Christiansen’s he discussed variety of along with a arguments, primary Del Vec- detail. great related events First, that he denied argued others. 1965 confes- preclude the sought chio had Garippo, who had trial because involuntary. a fair it was the basis that sion him the 1965 prosecuting involved in been grant Del Vecchio Garippo did during murder, the presiding sat as voluntari- hearing address the evidentiary to Second, argued he trial. murder the Canzonieri confession; allowed simply he ness right to his constitutional that he was denied evidence, leaving Del Vecchio into confession sentencing during the evidentiary hearing an jury that the to the to claim opportunity voluntari- test the trial the 1979 to phase of govern- voluntary. The was confession Finally, Del the 1965 confession. ness of Del Vec- evidence that presented also ment that the claims: several other made Vecchio he killed 1965 that falsely claimed chio that if jury to believe misled prosecutors use, Del argued that and drug because death, eventually to not sentenced he was on crimes his tendency to blame Vecchio’s granting into authorities finesse state After recurring pattern. of a drugs part was or- should that court evidence, parole; him other all of the this and hearing one of hearing to determine dered aggra- were sufficient there jury found that perjury; committed the state’s witnesses the death to warrant vating circumstances allowing alleged hear- erred that the court circumstances mitigating and no penalty, experts con- three made by say statements Ill.Rev.Stat.1975, par. eh. it. prevent See use; confession the 1965 drug cerning 1(b). imposed the sentence The court 9— jury’s from the excluded have been should death. in viola- was taken because consideration then, ago. Since years fifteen was That penalty Miranda; death and that tion of pris- in Illinois housed has been confusing. were jury instructions penalty death His awaiting execution. ons Del Vee- with agreed court district the Illinois stayed for a time as was determining that Del argument, second chio’s af- appeal; considered evidentiary hear- to an entitled Vecchio conviction Del Veechio’s both firmed ing challenge the voluntariness of the 1965 alleged considered all of the constitutional The court confession. remanded the case to violations Del petition, Vecchio raised in his court, state with instructions to conduct and determined that he was entitled relief evidentiary hearing, at which the only state would on his claim that right he had the to an prove have the burden to that the confession evidentiary hearing to address the voluntari- voluntary. But the court otherwise de- ness of his confession. We de review novo petition. nied the F.Supp. Del legal district court’s conclusions. Drake appealed Vecchio Clark, the district (7th сourt’s order to Cir.1994). 14 F.3d petition. extent that it denied Illinois cross-appealed the district court’s decision to A Appearance Bias remand to the state court to conduct an Del argues Vecchio first that he was de- evidentiary hearing on the voluntariness of nied a fair trial Judge because Garippo’s the 1965 confession. participation in the 1979 trial created an A panel divided agreed of this court appearance of bias. theory, Under his the district court’s conclusion that showing Del Vec- prejudice actual bias or would be chio was entitled evidentiary to an hearing to unnecessary. only He would have to show confession, test the voluntariness of his but Judge Garippo temptation had some reversed the district court’s decision that the be biased in order appear- to demonstrate an proceedings were otherwise constitutional. 8 ance of bias. temptation He finds this F.3d 509. The court held Del Vecchio’s trial, intersection between the 1965 in which trial sentencing were constitutionally Garippo supervised prosecution, and the Judge flawed because Garippo’s previous trial, in- where acted judge. as prosecution volvement with the 1965 neces- Del Vecchio claims that the confluence of sarily him rendered biased in the Canzonieri those events raised a temptations number of trial. The full court vacated opinion, Garippo, including temptation decided rehear the case en banc. 8 to favor- the motions to introduce F.3d rehearing, 530. On we first consider evidence concerning the 1965 proceedings, legal questions addressed in the vacated temptation sabotage capital 1) opinion: whether was denied sentencing hearing personal because of some a fair trial because Garippo presided responsibility Judge Garippo felt for Del 2) judge; and whether Del Vecchio was light Vecchio’s sentence for the 1965 murder. evidentiary entitled to an hearing to test the As later, we will discuss it stretches the voluntariness of his 1965 confession. We suppose facts to Judge Garippo also address the other previously mentioned temptation sort of biased 1979. Re issues Del Vecchio appeal, raised ally, he was tangentially involved Del were not addressed in the vacated opinion. prosecution. Vecchio’s 1965 His decisions regarding prosecution the any had if little Analysis II. thing to do with Del being a free prisoner A to 1977, entitled a writ of man in Tony when he killed Canzonieri. corpus habeas if being he is held under a Garippo had personal no real stake in judgment court obtained violation of the outcome of the motions to suppress evi the Constitution. 2254; § 28 U.S.C. dence which were filed the 1979 trial. Chrans, (7th v. 926, Williams 945 F.2d Certainly, 931 personal he had less stake than a Cir.1991). Our corpus jurisdiction, habeas judge presides who against over a ease a thereforе, “is limited questions to of person federal he had sentenced in an earlier case— and custody. constitutional words, In other a common judicial system occurrence our ‘federal grant courts can habeas relief which does not prompt process due concerns. — when there is a violation of federal statutory Liteky States, See v. U.S. -, United ” or constitutional law.’ Haas v. -, Abraham 114 S.Ct. 127 L.Ed.2d 474 son, 384, (7th Cir.1990), 910 F.2d (“[a]lso quoting (1994) subject not to deprecatory Flannigan, 945, (7th Lee v. 884 F.2d characterization as ‘prejudice’ ‘bias’ or are Cir.1989). case, In the district opinions by judges held as a result of what may unfair trial. What prevent an to It has tion proceedings. in earlier they learned observer, in hind especially an appear bad to proper for and as normal regarded long been or, more upon may its sight, not same case judge to sit the influenced — a pos may real re- not have importantly, trials remand, successive to sit in defendant.”). judge in his deci this is a sibility But to influence —the same garding the closely following case, the sion-making process. our court Consider penalty death judge Del Vecchio’s not Suppose examine a does Thus we will hypothetical. divided. par- Garippo’s claim financial seemingly remote has a interest a close relative know tempted prosecution outside observer ticipation tries. To the a case he Therefore, 1979 case. the him undermine of interest but unaware of the aware temp- possibility of when first address bad knowledge, we it would look judge’s lack of showing of actual a alone—without tation But if the try that case. judge to for enough to demonstrate or bias —is influence know the relative’s not even about judge does process violation. a due interest, tempted to could he be how financial actual incen And no the case? undermine justice is appearance of Certainly, the judge be biased —if for the exists tive process system and the due in our important partial— to be have reason does not judge recuse judge requires clause sometimes over trial judge’s presiding could the how bias, showing of actual himself without trial to a fair party right of his deprive a exists. to be biased motive where a sufficient v. judge? Bradshaw impartial See before compel cases Supreme Court of longA line Cir.1986) (5th McCotter, 100, 101-03 F.2d Tumey conclusions. general these (Gee, J., concurring.).1 444, Ohio, 47 S.Ct. U.S. (1927), “[e]v stated Court L.Ed. 749 Supreme dissents treat possible offer would which ery procedure justice” language “appearance average man as Court’s temptation nice, clear, holding and Aetna balance Murchison hold the ... not to judges to requires de process clause accused due the state true between solely appear on Where based process of law.” due themselves the latter recuse nies hold exist, process present no such eases due But those tеmptations such ances. “ap by judges mention of bar trial Court’s “may ing; clause sometimes certainly do not com who would does justice” bias and no actual pearance who have justice grounds if a the scales of weigh due very best their reversal pel parties.... personal contending on a equally between decides —based federal the best high function in it looked bad protocol its perform judicial [T]o view —that satisfy appearance pure way, ‘justice try must Such a judge case. a state ” Murchison, 349 U.S. In re be hard recon justice.’ approach appearance (1955); 99 L.Ed. prece bevy with the cile Lavoie, 475 U.S. Ins. Co. v. do Aetna issue of recusal on the dents Life See, 89 L.Ed.2d justice.” “appearance of address — (1986). at -, Liteky, e.g., eyes usually for the Appearances are pro- Supreme Court’s broad Despite the ap whatever Years after the beholder. jus- appearance of about “the nouncements a re disappeared, was has there pearance process the due tice,” cannot answer we appearance but not with judge is left viewing may concluding it by that simply question not That will speculation. hindsight preside with Judge Garippo to for have looked bad overturning a convic a basis as a suffice truly is question If the at trial. never rested has Supreme Court trial, appear- tion. fair bad a received defendant process due principle of vaunted disqualifica- require should not ances alone Garip- to hypothetical makes no reference suggest that meant hypothetical is This not 1. fallacy of view- might po, remem- to illustrate Garippo not even have and is meant “Judge by process facing Christiansen case a due only appearances ing role when bered his at the Canzonieri appeared time Del question. This Cummings, at dissent J. trial.” subjective something as transitory matters, particularly as kinship personal Instead, appearance.2 bias, the Supreme “possible Court could offer a temptation” to be Aetna, simply “appearance justice” uses the biased. of lan- at U.S. 106 S.Ct. at 1584; guage Tumey, point to make the at judges that U.S. S.Ct. at some- “ point, 441. At some ‘biasing a they times must recuse themselves influence when face ... will biased, too remote and possible temptations be to be insubstantial even when ” violate the constitutional constraints.’ Aet against party no actual bias exhibit a or na, at U.S. 106 S.Ct. at (quot a cause. ing Jerrico, 238, 243, Marshall v. short, appearances bad do alone not (1980)). 64 L.Ed.2d 182 require disqualification. Reality controls merely recognizes, This implicitly, least perception. over uninformed world, that in “possible the real temptations” cites case in no which the Court has human; be Judges biased abound. are a grounds overturned verdict on due humans, like all their shaped by outlooks are appearаnce based on a mere bias. Our experiences. their lives’ It would be unreal- holding court was correct in litigant “a suppose istic to judges bring do not not denied process by due ‘appear either the experiences the bench those and the attend- partiality ance’ of which circumstances ant they may person biases create. A could might speculate lead one judge’s as to a find something in background of most impartiality.” Johns, Margoles v. 660 F.2d judges in many cases would lead that (7th Cir.1981). When person to conclude judge has a “appearance talks about the jus “possible temptation” to be biased. But not tice,” saying is not appearances that bad temptations all equal. are created We ex- require disqualification; rather, alone it is pect judges demand —that rise above —even saying judge a when is faced with cir potential biasing these influences, and in present cumstances in [actual] “some presume most judges cases we do. See way to find centive one or the other” or “a Larkin, Withrow bias,” real possibility of a court need not (1975) (the 43 L.Ed.2d 712 con- examine judge actually whether the was bi tention that the combination investigative Jones, ased. Id. at 297 (quoting Howell v. adjudicatory necessarily functions dis- (5th Cir.1975)); 516 F.2d 57-58 Brad qualifies adjudicator an administrative “must shaw, (Gee, J., 796 F.2d at 102 concurring). overcome presumption in- honesty and bias, however, Absent the incentive for dis tegrity in serving adjudicators.”). those qualification required despite is not ap bad The common recognized law reality. pearance. At the time the American system Moreover, even if established, the disqualifica- common law of “possible faced temptation” some to be bi tion “was simple: clear and against Vecchio, ased every “possible disqualified pecuniary for direct interest and temptation” to presents be biased a sufficient for nothing Frank, else.” John P. Disquali- possibility require of bias to disqualification. Judges, 56 Yale L.J. fication of This evident from other language in (1947). No other interest would suffice to same cases which the Court talks about require, permit, or even disqualify “possible temptations.” Thus, in Aetna and himself, including against evidence of bias “ Tumey, the Court noted ques all ‘[n]ot litigant. 611-12; Aetna, Id. see also judicial tions qualification ... involve con U.S. at 106 S.Ct. at 1584. As Black- validity.... stitutional kinship, [M]atters of it, put stone “the suppose law will not bias, personal policy, of in remoteness possibility of bias or favour in a judge, who is terest, generally legisla already matters impartial justice, sworn administer tive though any discretion’” —even of these authority greatly depends whose upon 2. Judge concurring opin- Easterbrook has filed a agree bolster conclusion. We with this agrees ion in which he with the analysis, conclusion that historical support and cite it to the appearances require disqualifica- position alone do not that the Court has never rested provides tion. He analysis a detailed process appearance. historical due

1373 Ward, that the the Court held In Black- Aetna. 3 W. idea.” and presumption judge Aetna, could not sit a mayor Monroeville as (quoted stone, *361 Commentaries 1584). mayor responsible The court. 820, in traffic at 106 S.Ct. at 475 U.S. produc- and revenue the town’s finances for as recognized, and law common As the tion; “major part” of a derived Monroeville teaches, lucre is a the lure experience costs im- fines and other income from its motivation, and therefore strong particularly sensibly held Court that court. The posed in presiding from prohibited ought to be judges fi- responsibility for town mayor’s the they have a outcomes cases in whose over partisan to maintain “may make him nances course, the Su- interest. Of financial direct may- the high level of contribution the process the clause has held due preme Court 60, That 93 at 83. Id. at S.Ct. or’s court.” interests besides for requires disqualification interest, judge’s personal financial the like the constitutional But interests. pecuniary mayor suffi- Tumey, provided the interest applied has Supreme Court standard against the defendant find cient incentive is neces- disqualification determining when not, consistently with mayor that the could reality the common recognizes the same sary clause, judge. as See id. sit the due myri- subject to a judges are recognized: law influences; judges for the most biasing ad of disqualifica required also has The Court of overcom- capable presumptively are part personal litigant’s of a direct in the face tion rendering evenhand- and ing those influences Mayberry Pennsyl v. judge. to a In insults strong, direct interest only a justice; and ed 499, vania, L.Ed.2d S.Ct. U.S. ease is sufficient of a in the outcome (1971), during course the defendant of evenhanded- presumption overcome among other judge, called the of his trial ness. [S.O.B.],” tyranni “dirty “dirty a a epithets, “fool,” dog,” eases a disqualification “stumbling and dog,” a Supreme Court’s cal old The requiring “Span running cases point. judge "with charged The illustrate this had “direct, personal judge all involved had told disqualification Inquisition,” ish judges on the The influences at 505. at 91 S.Ct. substantial” Id. [and] “Go hell.” Aetna, at S.Ct. judge 475 U.S. could not subse involved. Court held cases, it is fair contempt of these litigant In each for try at 1585. quently struck at litigant’s influences involved were say that the insults face of this abuse. motivation, average that an of human most vulnerable heart ‘at the “apt to strike ” difficult, impossible, if not judge’s temperament.’ man would find qualities of human Illinois, aside. 391 U.S. to set the influence v. (quoting Bloom Id. 20 L.Ed.2d S.Ct. Aetna, example, Tumey and In both Hayes, 418 U.S. (1968)). Taylor v. also See “direct, personal, faced with judges were (1974) 2697, 41 L.Ed.2d 897 488, 94 S.Ct. substantial, interest[s].” See Aet pecuniary “run in a embroiled (judge had become who In at 1586. na, at 475 U.S. that re attorney controversy” with ning paid case was judge in a criminal Tumey, the ... on personal feelings in “marked sulted convicted. only if the defendant had sides,” during bоth Aetna, In at 440. 47 S.Ct. U.S. attitude” personal “unfavorable displayed an Embry the Alabama Justice try the attor attorney, could toward and wrote the deciding vote cast the Court contempt). ney for legal establishing a majority opinion in a case and immedi “had the clear proposition ‍​‌​‌​‌‌‌‌​‌‌‌​‌​​​‌​‌‌​​‌‌‌‌‌​‌​‌​‌‌‌​‌​​‌‌​​​​​‍that Murchison, held that In legal status enhancing both ate effect of ad- prosecutorial and judge’s combination cases pending of two value” and settlement violated the same functions in judicatory plaintiff. 475 filed Embry had as Justice case, process. due 822-24, at 1585-86. jury” grand inves- as a “one-man judge acted Two witnesses Monroeville, corruption. police tigating City judge in Ward juror grand as judge in role before 34 L.Ed.2d Ohio, way to con- such questions in answered (1972), similar temptation faced a those witnesses vince Tumey judges by the those faced 1374 Withrow, contempt. charged

committed judge Examining Wisconsin Medical contempt two witnesses with and subse- Board investigation commenced an to deter- quently and tried convicted them. 349 U.S. mine whether a doctor had committed certain 134-35, at 75 at S.Ct. 624. The illegal acts. The subsequently Board decid- held that Court the trial before the same hearing ed to hold a to determine whether brought contempt who judge charges alleged illegal the doctor had committed the right process. violated the defendants’ to due suspend acts and whether to the doctor’s “Having part accusatory pro- been of [the temporarily. 39-41, license 421 at U.S. be, judge very cess] a cannot in the nature of S.Ct. at 1460-61. The Court held things, wholly in disinterested the conviction adjudicate the Board could the same acquittal or of those accused.” Id. at 75 charges it investigated had and decided to at 626. S.Ct. prosecute violating without the doctor’s due comparison A in the situations which the process rights. 47-55, See id. at 95 S.Ct. at required disqualification with situa- 1464-68. disquali- which the Court did tions not find may why One wonder the Court found a required fication makes clear that not process due violation Murchison but not “possible temptations” all bias re- toward (or cases, In Withrow. both quire judge person the same disqualify himself. For Aetna, example, body) prosecutor had served as the Court held that Jus- both and Embry’s general antipathy adjudicator. cases, tice adjudicators toward and In both frustration with companies insurance did not “possible seemed temptation had a require disqualify him to himself. 475 U.S. nice, ... clear, not hold the balance and 820-21, at “[OJnly 106 S.Ct. at 1585. true....” But distinguished the Court most extreme of cases” would the Constitu- Murchison; Withrow from procedure require disqualification tion type for this Murchison violated due “not general bias. Id. at at S.Ct. judge because the part effect became prosecution adversary and assumed an Likewise, not contemptuous all con position, also judge, passing but because as a by person prevents duct judge from guilt innocence, very likely relied on trying person contempt. for The Court ‘his own persоnal knowledge impression and to hold a disqualified refused of what grand jury had occurred in the room’ trying contempt a witness for Ungar impression ‘could not be Sarafite, tested 376 U.S. adequate (1964), cross-examination.’” 421 despite U.S. at L.Ed.2d witness’ con Murchison, 95 S.Ct. at (quoting criticism of judge, tinued disobedience to 626). trial, during U.S. at “disruptive, 75 S.Ct. at orders recal disagreeable commentary.” citrant Id. might S.Ct. at 847. suppose One Not even all financial interests are

this disobedience and Aetna, criticism offered a disqualifying. instance, In six “possible temptation” against to be biased other judges were plaintiff members of the the defendant. But the had not be class in Embry the two suits Justice “personally come embroiled” the liti Although justices filed. those six conceivably gant, and the Court refused to “assume that had a “slight pecuniary interest” in the out judges are so irascible that they fairly cannot and, therefore, “possible tempta come— deal with authority resistance to their or with tion” to biased —the Court held that their highly charged arguments about the sound disqualification required. was not ness of their decisions.” Id. 825-26, jus S.Ct. at 1587-88. interests, though pecuniary, tices’ The line between interests that require were substantial_” “direct, disqualification personal, those that do not is not Id. Any always gain justices clear. Consider these the contrast between from a favorable Larkin, Murchison and “speculative Withrow v. decision in Aetna and con- (1975), tingent;” 43 L.Ed.2d 712 yet certified, the class had not been involving similar circumstances. and no class relief had been awarded. Id.

1375 Prosecuting in a defendant one require cases. Therefore, eases the Court’s can of action from which we not the kind is about beyond generalizations gowe that in a prejudgment future presume bias in temptations” deciding “possible case. disqualify required to Judge Garippo was not whether some question is

himself. Judge So, could Gar- personal motive what exists; in to be biased temptation possible had to undermine the 1979 ippo possibly have biasing is, a stead, when does question identifies two trial? Del theories. Vecchio Consis disqualification? require influence First, prosecutor Garippo that he contends law, begin in an we common with the tent gathering in closely involved evidence hon by presuming “the swering question this argues, concerning 1965 murder. He serving adjudi esty integrity of those and therefore, Garippo personal a that Withrow, at 421 at U.S. cators.” affirming validity of evi- in that stake Lockhart, 1464; 997 Dyas v. F.2d follows, from Del Vecchio’s view- It dence. Cir.1983). (8th required Disqualification is Judge Garippo could not point, that in strong biasing influence is when applicable rules of fairly comply with the that presumption, enough overcome admissibility of ruling on the evidence when strong we is so is, Instead, influence when the disregarded the 1965 evidence. Dyas, 705 See may actual bias. presume simply admitted the evidence. the rules and in “situations occurs Second, prosecu- 996-97. This F.2d at contends that Del Vecchiо experience expedite teaches in Garippo’s ... decision which tor high too to be being is ini- possibility of actual bias in Del indictment Vecchio resulted Withrow, 421 theory constitutionally juvenile. tolerable.” tially as a sentenced A must be at 1464. cut Del Vecchio prosecutor at U.S. influence, early “under particular leading to his release that a convinced break Tony tenden him to psychological prison, allowed kill appraisal of which a realistic weakness,” theory, Judge Garippo “such a this poses in 1977. Under human cies and Tony’s mur- responsibility that the prejudgment personal bias or felt risk of actual der, fairly conduct guarantee not and could be forbidden practice must theory turn. each imple shall consider adequately trial. We is to be process of due mented.” Id. to ex did file motions standard, his 1965 confession convic clude use of Gar-

Judged by this trial, Judge Garip- in the Canzonieri himself. tion disqualify required not ippo was motions, least rule on these at biasing po did have to none of the Judge Garippo faced sentencing phase. But as the trial’s in the cases in involved influences stated, nec the interest in Murchison disqualification. Court required Supreme de disqualify “cannot essary to be no financial interest— Judge Garippo had re Circumstances and precision. of Del fined with the outcome or indirect —in direct lationships be considered”. subject must been trial. He had never Vecchio’s abusive, 625. The circumstances or even insulting, any personally contents of the motions actual this case—the by Del Vecchio or disrespectful remarks not warrant raised —do and the role of issues not serve the dual attorneys. He did likely to Judge Garippo was so finding that trial. judge in the Canzonieri prosecutor we merits that the motions’ prejudged have been some Judge Garippo had involved impartially decide presume he could can prosecution for mur aspects Del Vecchio’s the motions. years the Can- before in 1965—fourteen der motion, challenged Del Vecchio In the first the Fifth Sixth trial. But as both zonieri conviction, about the use of evidence held, disqualifies per no se rule Circuits was irrelevant claiming the conviction a defen prosecuted he has because In the Bordenkircher, 1979 trial. second the issues at v. past. dant in the Corbett motion, alleged that his (6th Cir.1980); Murphy 722, 723-24 615 F.2d Cir.1969). (5th illegal because statute Beto, 98, 100 This conviction was F.2d charged as adults juveniles that allowed Supreme Court’s rule consistent ways: ippo permitted evidence, violated due two the statute determining require hearing did not to determine if a law was constitutional. It is true adult; juvenile charged Judge Garippo participated should be as an in the deci- (a charge sion to charge juve- the statute the decision Vecchio as an adult left to Judge Garippo decision that in his 1989 depo- totally nile as adult to the “absolute and 16-year- sition described as a standardless discretion” of the Attor- State’s “no-brainer” — olds accused of always murder were almost ney judge. Finally, and circuit court adults). charged as But Del Vecchio’s mo- motion, challenged third Del Vecchio the use Judge tion did not Garippo’s focus on deci- trial, of his 1965 confession in the 1979 claim- sion; it focused on the statute under which ing involuntary that the confession was he made that decision. The motion did not violation of Miranda. Judge obtained allege Judge Garippo himself violated Garippo during never ruled on these motions except the Constitution to the extent that he guilt phase of the trial. He did not have allegedly followed the unconstitutional stat- to; prosecution attempted never to intro- ute. There presume is no reason to that a duce the evidence. But he did allow evi- judge in Judge Garippo’s position could not proceedings dence from the 1965 at the sen- impartially motion, decide Del Vecehio’s un- tencing phase. possible it presume, Is to or perhaps professional less he had some or infer, even to that he did so because he had a intellectual stake in the statute’s constitution- personal stake the outcome? To answer ality. But the record reveals no such stake. this, Judge we must Garippo’s per- examine indication, example, There is no sonal stake in each motion. Judge Garippo anything to do with draft- First, sought preclude Del Vecchio to evi- ing statute, passing or that he had conviction, dence about contending the 1965 ever defended constitutionality. the statute’s that it was proceed- irrelevant to the 1979 way required The motion in no Judge Garip- ings. Judge Garippo allowed the evidence at po to prosecutor. his own decision as a sentencing phase, determining it to be motion, In the third and final Del Vecchio jury relevant for the to consider when delib- attempted preclude confession, his 1965 erating the fate of killer. the twice-convicted contending that involuntary. was But Del Vecchio asks us to Judge infer that Judge Garippo jury allowed the to review the Garippo’s decision on that motion was not a during confession sentencing phase. appraisal relevance; careful on the issue of Again, possible there is no inference that rather, unscrupulous that it was an effort to Judge Garippo personal had a stake impose the death sentence. But that is not a prosecutor, confession. As a Garippo was at reasonable, permissible much less inference. only tangentially best involved in the circum- There is no cause to pre- think —let alone surrounding stances Del Veechio’s confes- Judge Garippo sume—that impar- could not gave confessions, sion. Del Vecchio two one tially consider the relevance of the 1965 con- police and one to Assistаnt State’s Attor- question viction. way of relevance in no Tuite, ney Patrick prosecutor Garippo’s sub- required Judge Garippo judge any deci- Garippo ordinate. Prosecutor read Tuite’s sion he Judge had made in 1965. It was not report about the confession. But Garippo Garippo Christiansen, who killed Mr. con- himself took no confession from Del Vecchio. fessed to the pleaded guilty. murder and fact, Judge Garippo’s deposition indicates independently 1965 conviction existed that he first read about the crime in the anything prosecutor Garippo alleged is newspaper and did not even know of the ease Judge have done. Garippo simply had no police when the and Tuite took Del Vecchio’s personal stake in determining the 1965 con- allege, confessions. The motion does not nor viction to be relevant. indicate, does the record prosecutor motion, In the second sought Garippo improperly subordinates, trained his preclude evidence of the 1965 conviction required or that he or allowed subordinates because it was allowing obtained under a law involuntary to extract confessions from sus- juveniles charged adults, to be pects, which he systematically either inor this case. contended Judge was unconstitutional. Again, any personal Gar- Judge stake Garippo deciding whether justices in Supreme Court confession upholding the had in themselves, court held that presume disqualify no reason minimal. There was insufficient to re- impartially judge’s interest Garippo could former police or his under the due quire disqualification of the the work evaluate n. 19.3 See id. 1099-1100 & 1100 clause. subordinate. States, Barry v. United Our decision pres theory Del Vecchio The second (7th Cir.1976), instructive F.2d 1094 per arguing ents motions re- pretrial Del Vecchio’s trial undermine the 1979 sonally motivated himself. disqualify Garippo to Judge quired Garippo’s 1965 decision prosecutor centers on under a Barry, was indicted defendant In the Del con Vecchio expedite the indictment. (but upheld) con- subsequently then-novel began a chain reac this decision tends Barry’s trial Act. Hobbs struction the early release eventually led to his tion which Attorney. States judge had United been again. kill Un allowing him to prison, personally had Attorney, he As States United Judge Garippo felt theory, Del der Vecchio’s prosecute toAct the Hobbs to use decided murder, responsibility for the 1977 personal Barry was in activity as that which such during the unbiased could not been questions of the Id. at 1097. One involved. grudge against Del held a trial because he at was to decide trial judge had theory, we accept this In order Vecchio. Barry’s activities. applied to the Hobbs Act allows the that the record must first conclude Id. at 1100. prosecu it is based: inference on which Barry much at least as judge in had in 1965 break Garippo cut Del tor in the out- intellectual stake professional and again in being free to kill to his which led Judge as question Act Hobbs come of the 1977. Vecchio’s outcomes of Del had in the Garippo permit this infer- not But the record does conviction motions to exclude did, really, was Garippo prosecutor All ence. decision to made the had confession. He indictment. As expedite the agree to way applied it was Act apply the Hobbs out, only postponed date turned examining Su- But after Barry’s in case. adult; sentencing as an where- practices of Vecchio’s and the precedent preme Court Supreme reviewing Judi- indicates, decisions disqualification practice cases Barry 3. As had in he justices also instructive. Supreme cial Court of Massachusetts Court author, 836, Black, Laird, was one of 93 S.Ct. participated. Murchison's 409 U.S. Justice the See Stan- principal Labor cases). authors of Fair (citing at 14 through helped shepherd the Act dards Act and justices Supreme practices While the Yet, sat in United States Congress. Justice Black may dispositive, be regarding disqualification not 451, 85 L.Ed. Darby, 61 S.Ct. v. pre- Certainly, it be they persuasive. are (1941), deciding Act’s constitu- case most that some of the sumptuous to hold isolated case. for us tionality. Black's is not an Justice Frankfurter, pro- history regu- as a law nation's example, distinguished jurists in our Justice For fessor, extensively in the field of by sitting had in cases written larly the Constitution violated book, Labor had co-authored labor law and disqualification might conclude in which we severely the use of Injunction, criticized had Judge Garippo had in prudent. Any interest Frank- injunctions Justice against labor unions. seems to Vecchio's motions the outcome Del important part in draft- played an furter also probably than —the less greater be no than —and Act, designed to act ing an the Norris-LaGuardia Darby, Frank- Black in Justice of Justice interests abusive use of what was considered correct injunctions by McGrath, Hutcheson, in Justice Jackson in furter disputes. labor courts in federal which he any of the cases Justice Holmes or in, Yet, but wrote not sat Justice Frankfurter Massachusetts on review from sat Hutcheson, v. opinion States United real had a these Justices Court. All Judicial (1941), 85 L.Ed. U.S. 61 S.Ct. in the deci- stake professional intellectual scope. interpreting See leading the Act's cases, higher than stake in those sions 831-32, Tatum, 93 S.Ct. U.S. v. Laird in the out- supposedly have had Garippo should (1972) (memorandum of Jus- L.Ed.2d 50 they decid- motions. Yet Vecchio's of Del come participated in Rehnquist). Justice Jackson tice fairly. rule put aside and that stake ed could Kristensen, McGrath Garip- presume that is no reason There (1950), raising same a case 95 L.Ed. put minimal po able to aside was not likewise Laird, Attorney General. he had issue decided of Del might have had decision he interest on the And 409 U.S. at Court, Vecchio's motions. sat in several Holmes Justice sentence, light as he otherwise would have highly unlikely been sentenced it is immediately, as an adult instead he was sen- Judge Garippo sufficiently would have felt years tenced as an adult a few later when he guilty a decision with which about he had so twenty-one. allegation turned There is no or little to do he could not have put this judge ultimately evidence that the who sen- guilt aside at Del Vecchio’s trial. The due tenced Del Veechio as an adult had less disqualification requires standard for judge than a discretion 1965 would have influence interest that we can conclu- Indeed, had. a minimum faced sively presume average would cause the years of fourteen and a maximum of life in judge prosecutor to be biased. All Garippo prison both when he agree did expedite the indictment. finally just sentenced as an adult. It so chance, By eventually placed this decision happened judge that the in 1971 decided to Del Vecchio before a who decided retrospect, telling be lenient. there is no prosecutor lenient. Because could whether a asked to Del Vec- sentence treatment, easy have foreseen such ehio as an adult in 1965 would have been likely responsible was not to have felt for it If retrospect, lenient.4 we cannot know in years fourteen later. It would be unreason- prosecutor Garippo predicted could not have presume to Judge Garippo able that as much when he expe- made the to decision weighed against have the scales Del Veechio that, dite the indictment. Once he did under these circumstances. punishment was out of his hands and it was judges left to the wisdom of the to sentence prosecutor if Garippo But even had Granted, Del Veechio. Del Veechio ultimate- undoubtedly given Del Vecchio a clear ly light received a murdering sentence for example, prosecutor break —for Garippo Mr. Christiansen in light but this treat- agreed imposition had to of the minimum ment prosecutor Garippo. was because of exchange guilty sentence in plea for a —the judge It because of the was who sentenced risk of bias would still be insufficient to hold Del Vecchio. Judge Garippo that required disquali to break Del fy Vecchio received be- Compare prosecutor himself. a to a sen quick cause of the indictment was that tencing judge. system In a of indeterminate spend years allowed to sentencing, first four system such as the federal before youth a facility, Guidelines, sentence correctional Sentencing judges make rather than in prison. an adult This break thousands of length, decisions on sentence had no foreseeable connection to the large part 1977 based in judges’ personal on the Therefore, any possible biasing murder. in- evaluations of the defendants before them. stemming fluence from the expe- Any decision to one of those decisions could turn out to dite the indictment far too wrong. remote have be judge’s But does a deci incorrect required Judge Garippo’s disqualification. give sion to a defendant a sentencing break perceived Even if one some obscure causal necessarily prevent one judge link expedited between the presiding indictment and from at that defendant’s trial dissent, Judge Cummings is, 4. In his judge labels this as- The fact no on this court accu- can "sophistry,” sertion which we take mean bad rately happened divine what could have in 1965 reasoning. Cummings, J. dissent at 56. But this if Del Vecchio been sentenced as an adult reasoning tencing naturally emanates Illinois’ sen- high-profile presumably after a trial and convic- laws; judge the laws in 1965 allowed prosecutor Garippo pre- tion. could Nor have made, point simply, be lenient. The to be agreed dicted the distant expe- future when he telling there is no what a in 1965 indictment; dite the of course the immediate would have done. The dissent with asserts cer- guilty plea was a achievement and conviction. tainty sentence, imposed hefty that a would prosecutor Garippo And because could not have newspaper because at the headlines strung together possibilities pre- in order to portrayed drug-crazed Del time killer. Vecchio as a murder, likely dict Del Vecchio's second it is not Curiously, speculates the dissent also it; responsible responsible, that he felt so was a there "risk” that the Illinois Youth Com- fact, presume should would have we he would mission released Vecchio "im- abandon mediately,” apparently disregarding these same his oath in order to assure Del death Vecchio's startling Cummings, headlines. J. dissent at sentence. 1394-95. other; showing way or the tilt one years Would Circuit later? case fourteen required.” is not or bias actual influence actually gave Del judge who presenta- Del Vecchio’smethod Because of required have been sentence minimum tion, question whether he is some there trial? Can from the 1979 himself disqualify really argument. He actual bias waives in this average judge that the presume we arguing that presentation to confines his impar his oath violate situation would appearance had an of bias. reject rightly judges would trial Most tial? to contend But Del Vecchio seems because Court. so does suggestion; — Garippo’s supposed appearance at -, at Liteky, S.Ct. See way portended his hidden actual bias in some in such situa suggest partiality 1155. To bias, the evidence consider whether we shall “presumption is inconsistent tions showing in this case is sufficient make serving as integrity of those honesty and actual Withrow, bias. adjudicators.” opinion preceding section of this —on much of appearance of bias —resolves guide our deci- presumption should This of the evidence question. Because none engage we sion; before should be careful we suppоrts the inference previously discussed [judges’] psych- into “unseemly excursions Judge Garippo had an substantial actual Con- at 66. The Cummings, J. dissent es.” biased, support neither does incentive to be court to intrude empowers this stitution actually biased. that he was the inference convicting sentenc- process of circumstan- presents other But Del Vecchio constitutional violation. only if we find a ing corpus habeas adduced tial evidence in order propriety exaggerate not should We Judge prove which is meant proceedings, of Illinois’ treatment a violation. to find such Garippo’s shall consider bias. We “tragic.” anything but George is Del Vecchio possibly supports the inference this evidence at 1398. It exhibits Cummings, J. dissent Cf. of actual bias. unrepen- with an attempt deal civilized a murderer. Illinois twice-convicted deposition

tant and in these Judge Garippo gave a tried, all of the and heard caught, convicted that he in which he proceedings, admitted murderer; give that it will now a appeals by of who betrayed defendants personally feels people of Illinois sentence murderer he been lenient commit crimes after has judges as- appropriate. As federal re sentencing deem them. Del Vecchio when under Con- process due signed Judge to ensure argue statement counts this stitution, obstacles when must create we him. antipathy towards Garippo similar felt fulfilled its constitu- of Illinois has sentencing judges probably the state feel But most obligations. tional emo betrayal; it is a natural this sense

tion, interest. though hardly disqualifying conclusion, “predis Bias logical B. Actual Taken to its judge prevent a trial theory would position” some Judge If exhibited a sec sentencing someone trying and trial, conducting Del Vec bias actual in our common ond time —a occurrence a valid Fourteenth have had chio would recently which, Supreme Court as the courts re “Fairness of course claim. Amendment noted, about bias. not raise concerns does trial of actual bias the absence quires — at -, U.S. Liteky, See Murchison, a case.” antipathy to Garippo’s general Judge But, concedes as Del Vecchio at 625. is his lenience who abuse ward defendants brief, diffi practice, actual bias is “[i]n in his Embry’s general antipathy akin Justice Probably prove.” impossible if not cult the Su companies that toward insurance really this, never Del Vecchio because to dis found to be insufficient preme Court actual Judge Garippo exhibited argues that justice in Aetna. qualify the process argues simply “[d]ue He bias. pieces other points to two any next Del Vecchio himself in requires to recuse in dis- he obtained evidence potential fair circumstantial there is a situation He petition. purposes of this covery tempted to might be average person an Judge Garippo’s “deserving” pen- courtroom clerk chio was more Judge Garippo’s this statement evidences (1964). cross-appeal Illinois filed its to chal- against bias him. according Judge But lenge ruling. Garippo, the statement was directed not at Supreme The Illinois Court ad which of the three defendants was most wor- dressed this issue in Del Vecchio’s direct death, thy of but at rather which defendant that, appeal. It determined under Illinois likely was a more “candidate” for the death law, Del guilty plea Veechio’s in 1965 waived Judge sentence. Based on Garippo’s limited challenge to the voluntariness of the con knowledge cases, of the facts he was Vecchio, 470, fessions. Del 86 Ill.Dec. at 475 speculating on which defendant was most N.E.2d at 849. A required federal court is vulnerable to a jury. death sentence avoid collateral review of an issue a habeas Judge Garippo’s explanation sense; makes corpus case if the last state court which Judge Garippo trying to railroad Del Vecchio, indepen considered the issue resolved it on why would he tell Del Vecchio’s adequate dent and event, grounds. state law lawyer? any Har Del Vecchio has not Reed, 255, 1038, ris v. 489 presented 109 any S.Ct. 103 evidence inconsistent with (1989); L.Ed.2d 308 Garippo’s testimony. affidavit, Thompson, Coleman v. In an 722, 2546, 115 501 U.S. 111 attorney Del Vecehio’s trial S.Ct. stated L.Ed.2d 640 (1991). Here, Judge Garippo question there is no ranking “indicated his that the of the respect Supreme Illinois cases with to their Court resolved relative merits as the confes Garippo independent death cases.... sion issue on grounds. indicated that of state law defendants, that, the three The Del Vecchio in court determined his view as a matter of law, appropriate guilty was the most Illinois impo- plea any candidate for waived subse penalty. sition of the quent challenge death He referred to to the voluntariness of the ” Gacy confessions; as a ‘distant third.’ The proposition affidavit does finds a measure See, state that support said Del Vec- of e.g., People Illinois law. v.

1381 159, sequence same as Del Vecehio’s: confes- 503, 160 the Brown, 244 N.E.2d 41 Ill.2d sion, gmlty plea, prosecution and a second at (1969) (“A any other right, like constitutional prosecutor introduced the confes- waived, which the accused, and a may be right of an appeUate court held that the de- sion. guilty waives all errors voluntary plea of hearing to a on the was entitled fendant jurisdictional.”). are not irregularities confession, despite of the voluntariness 35, 280 Phelps, 51 Ill.2d People v. also See guüty plea. Id. 337 N.E.2d at 84. earUer (1972); Stanley, 203, People v. 50 204 N.E.2d law, apparent flux IUinois cou- (1972); Given 792, 320, People 794 278 N.E.2d Ill.2d novelty Supreme pled of the Illinois Jackson, 344, 265 N.E.2d 47 Ill.2d v. decision, say we cannot that the state Court’s Stice, (1970); Ill.App.3d 160 People v. 624-25 “firmly regularly apphed a established 49, 53, 467 112 Ill.Dec. 513 N.E.2d in Del case. There- followed” rule Vecchio’s Owens, (1987); Ill.App.3d 131 People v. fore, apply procedural bar to we wül nоt 435, 436, N.E.2d 86 Ill.Dec. Supreme of the IUinois Court’s avoid review Patterson, Ill.App.3d (1985); People v. proceed to the merits of the decision. We (1972); People v. Good N.E.2d involuntary confession issue. win, 284 N.E.2d Ill.App.3d Cannon, (1972). F.2d Healey v. also See “right has the A criminal defendant Cir.1977). (7th 1052, 1057-58 upon a conviction based to be free of guaranteed by the Due confession” coerced inde question whether this But there is a of the Fourteenth Amend Process Clause adequate. ground was pendent state law Jackson, 378 U.S. at ment. regularly ‘firmly “[Ojnly a established and the protects It both the accused interposed by may be practice’ followed justice system to discard confes criminal ... of subsequent review prevent a State the taint of coercion. There sion that has v. claim.” Ford constitutional a federal fore, Supreme allows the criminal Court Georgia, 498 U.S. facing prosecution for an offense defendant (1991), 850, 857, 857, 112 quoting L.Ed.2d 935 confessed, challenge the volun to which he 341, 348-51, 104 Kentucky, 466 U.S. James evidentiary the confession at an tariness of (1984). 1830, 1835-36, L.Ed.2d 346 S.Ct. 392-93, Jackson, hearing. cases before Ah Illinois Court procedural safe at 1789. This extra subject constitu on this involved Vecchio’s rehabiUty of the guard is meant to assure the challenges made the same tional confession, always highly persua which is gmlty plea. made his the defendant where prosecutor’s piece of evidence sive spe- never before Illinois arsenal. gufity cificaUy question faced pre chaUenges matters off all plea cuts question here is whether Jack chaUenges in a made ceding plea the —even trial court to inter required the IUinois son the it never faced case. Because different in sentencing proceedings, or rupt the 1979 resolu Supreme Court’s question, the IUinois an evidentia provide Del der to Vecchio novel. See in case was tion Del Vecchio’s voluntariness of ry hearing to address the Patterson, 357 ex rel. NAACP v. Alabama argues Del Vecchio the 1965 confessions. 457-58, 1163, 1169, 2 U.S. right to an the such that Jackson estabhshed (1958). (“Novelty procedur in L.Ed.2d and whenever evidentiary hearing wherever permitted to cannot be requirements al at fight, even it was chose to apphed in for review this thwart a differ sentencing of another trial for phase who, upon prior justified in reUance those years after ‍​‌​‌​‌‌‌‌​‌‌‌​‌​​​‌​‌‌​​‌‌‌‌‌​‌​‌​‌‌‌​‌​​‌‌​​​​​‍taking place fourteen ent murder decisions, in state courts of seek vindication not read Jackson We do the confessions. rights.”). federal constitutional their principle broadly. established Jackson recount the be able to that, person that a should Supreme Court’s the IUinois Not court, so his confession to circumstances of departs some- decision in Del Vecchio’s confession will improperly obtained that an court’s decision appellate what from the crime gain a conviction for McLain, used to Ill.App.3d 337 not be People v. In such circum- Dist.1975). confessiоn. (4th described involved McLain N.E.2d 82 stances, 313-17, the confession is such a conclusive 2373-75. The Court guilt Supreme § plaintiffs indication of held that 1738 did not bar the step Virginia’s counsels an extra action because law did not bar the determining admissibility evidentiary action. Id. at 103 S.Ct. at 2375. The —an hearing Haring assure that the confession is reli- second issue in was whether —to special preclu- able. Court should “create a rule of sion which litigation nevertheless would bar case, facing In this was not § of his 1983 claim.” Id. The Court decided prosecution allegedly based on an coerced special not to create such a rule. By confession. the time the 1965 confessions during sentencing Haring, question came into evidence Unlike is not trial, phase long of the 1979 Illinois had since whether Illinois law would bar Del Vecchio guilty challenging determined that Del Vecchio was from his confessions in his 1979 murder; pleaded guilty Mr. Christiansen’s he had plea ease because of his 1965 and his time, guilty, disputed challenge served his and never failure to those confessions in 1965. guilt pro- his for that murder in a already collateral The Illinois Court has held (he ceeding or at the trial Canzonieri does that Illinois law does bar such a challenge. dispute guilt not even his for the 1965 mur- Nor do we have to decide whether to create a ease). preclusion. Instead, der The confessions were not federal rule of claim prove guilt offered to Del question Veechio’s for the before us is whether Illinois is con- Rather, 1965 murder. stitutionally required give the confessions were during capital sentencing hearing opportunity offered challenge second his confes- prove aggrava- for a different Haring murder to an sions. question does not answer this ting circumstance —that Del Haring purport Vecchio had because did not to create a once before his life killed in a random and constitutional prohibiting type rule of bar danger, And, violent fashion. There was not applied. Illinois already as we have addressed, held, which Jackson that the require confession Jackson did evidentiary might gain hearing used a conviction for the in these circumstances. crime described in the confession. There- against Practical considerations also warn fore, Del Vecchio did not have a constitution- extending infinitum, Jackson ad sub- right al evidentiary under Jackson to an sequent proceedings where a defendant chal- hearing challenge his 1965 confessions. lenges perfectly the confession. This case Prosise, Haring

Del Vecchio cites practical 462 exhibits those considerations. The court, 76 L.Ed.2d applying 595 district what believed to be (1983), Jackson, argument right to make the holding ordered Illinois to evidentiary hearing to an extended into the hearing conduct a at which the state would sentencing proceedings. Haring But prove have the burden to that the confessions right does challenge voluntary. not extend the the were placed This decision a tre- way state; confessions in the Del Vecchio contends. mendous onus on the in order to be Haring, Court held that a able to introduce the crucial evidence Del guilty plea does prior not bar a convicted defen- against Vecchio’s confessions him at the filing § dant challenge 1983 action sentencing hearing, to the state would first have constitutionality illegal of an required search in been reliability to demonstrate the in pleaded guilty. which he was, fact, To of the confessions based on what in conclusion, reach this grap- the Court had to According stale evidence. to the district ple court, with two issues. The first was whether required the Constitution the state to § requires 28 U.S.C. that federal reconstruct the circumstances of the confes- give courts full faith and to credit state court sions at sentencing hearing, the 1979 four- judgments, plaintiffs years § barred the 1983 ac- teen after the confessions were taken. depended tion. that, This on whether the law of Because the did not state do the district preclusion Virginia issue in state in evidentiary court ordered it to hold the hear- —the pleaded guilty— whose courts the ing twenty-seven years defendant in after the plaintiffs § barred the 1983 action. past twenty-nine years. fact. We are now challenged judgment. posed pursuant to a Governing Rules Section The relating post-convic- ABA standards to District Courts See in the United States Cases remedies, 2.4(c), p. (ap- of stale evi section against the use tion policy state 1968). (a) draft, in judgments is not proved court Subdivision overturn state to dence completed circum Rule 9 addresses to those who have their cases. limited habeas right broader, his to prisoner extending loses Its reach is stances where sentence. legal pro constitutionality of delay by peti- challenge the to all instances where petition. delayed state, We ceedings subject of a to prejudiced because tioner has ap rule no determination whether qualifications make conditions contained all, case; there is some after plies to this in the subdivision. impermissibly whether Del Vecchio question Advisory proceeds Note Committee The confessions, or challenge to the delayed his principle on the that Rule 9 is based state confessions use of the the 1979 “delay in laches, as a one’s and defines laches challenge. We resurrected somehow disadvantage to another.” rights as works policy simply to demonstrate the rule cite presump- goes on to “the The Note declare corpus cases. evidence habeas stale against years five passage more than tion that the Rule 9 Note for Advisory Committee judgment of conviction from the time of the part: states filing petition a habeas time to the date, per- at some petitioner_may Here, are near- the state.” we prejudicial to years the convic- fifteen after haps ten or fact; Del Vecchio’s ly thirty years after the tion, challenge the state decide years after the fact. The fourteen trial was trou- grounds most often judgment. The which underlie policy same considerations coun- to the courts are ineffective blesome against requiring the state Rule 9 vitiate guilty sel, right appeal, plea of denial of the 1965 confes- prove the voluntariness induced, con- unlawfully use of a coerced conclusively had in this case. Illinois sions fession, jury. The illegally constituted guilt in 1965 and it Del determined Vecchio’s interlocked grounds four are often latter right rely on that determina- every allegation of ineffective counsel. supporting it —dur- the confessions tion —and passage after the are asserted When sentencing. ing the 1979 attorney for the many years, both the true, Vecchio, significant has a it is Del difficulty in defendant and involuntary seeing confes- interest It often ascertaining what the facts are. him. But Del Vec- against sion is not used attorney has lit- develops that the defense and had interest chio had that same place took no recollection as what tle or challenge his confes- ample opportunity many participants and that of the attacking his spite of his interest sions. un- whereabouts trial are dead or their confessions, a reasoned made may reporter’s notes known. The court to his im- worked decision that decision—a destroyed, thus eliminat- have been lost or plead guilty and fore- advantage mediate transpired. If ing an exact record of what —to And that challenging his confessions. go guilty plea, even decided on the case was Through his attor- not all Del Vecchio did. intact, may not satisfacto- if the record is objec- that he had no ney, Del Vecchio stated attor- the defense rily reveal the extent of introducing his confessions tion to the state’s petitioner. of the ney’s on behalf efforts plea. basis for difficul- to establish factual consequence, there is obvious As a of his attorney portions used allegations. investigating petitioner’s Del Vecchio’s ty in the references (specifically, confessions petitioner The interests of both night of the on the drug use Vecchio’s government can best be served murder) arguing to the Christiansen is still are raised the evidence claims while sentence. possible regarding Del Vecchio’s has Bar Association fresh. The American decisions, may regret those now Del Vecchio of the state recognized the interests attorney’s his allege does not by but he against stale claims protecting itself Yet, deficient. in 1965 was performance claims after limiting right to such raise years after hearing many demands im- Vecchio of a sentence completion of service affirmatively if might fact to determine his confessions were stated that Del vоluntary. requiring paroled But to if Del Vecchio live be he was not sentenced to death. with the decisions he made 1965 does not The sum and substance of his statements was “experts” Nothing the Constitution. in the that Del Vecchio fooled to obtain violate Constitution, early prison from interpreting or in release after the 1965 cases murder; Vecchio, that Del Vecchio had shown an requires cited Del Constitution ability experts; put to fool and that if not accept a confession when it benefits (much) death, likely experts Del Vecchio would fool the accused but later defend that future, way might in a affect his same confession when the accused concludes punishment. In order for these gone. benefit is statements inaccurate, to be considered Del Vecchio prisoners would have to show that Illinois IV. experts, never have occasion to face who Arguments A Other authority punish- over the conditions of argues only ment. Del Vecchio that Illinois regarding 1. Prosecutor’s comment ex- possibility parole, removed the but this perts. satisfy does not his burden. Even without During prosecutor’s closing ar parole, from prison the time he entered gument sentencing hearing, at the the follow sentence, serve a life Del Vecchio would face ing exchange place: took gauntlet experts responsibility over right, Prosecutor: You have a ladies and punishment. seriousness his From gentlemen, protect yourself peo- from prison psychiatrists, wardens to Del Vecchio ple George like Del Vecchio. You experts, would have a lifetime to influence you protected should demand that be gain advantages whatever are available people George like Del Vecchio. prisoners penal system. in the Illinois must, you up You can’t leave it to the argues Illinois that Del Vecchio would also experts. experts. You can’t trust periodically face the Prisoner Review Board. People George like Del Vecchio— 38, § ch. Ill.Rev.Stat. 1003-6-3. He would Attorney: Objection. Defense eligible clemency. also be for executive may argue. The Court: He short, nothing there was inaccurate about informing jury that if Del Vecchio was experts. Prosecutor: —can fool the He’s death, put experts he would face manipulator, malingerer, he’s a penal system Illinois who would have some people, fools other people. he uses other say punish- over the circumstances his put somebody else, Don’t the decision on ment. you them, because can’t count on be- you years cause can bet a few from now stated, theAs Court has expert there will be another who will be there is no pros constitutional violation when willing along say to come he’s fine. juries capital sentencing possi ecutors tell argues that these comments led might ble breaks the criminal receive jury beliеve that did not recom- sentence, long prosecutor as the “accu sentence, possi- mend the death there was a rately sentencing eharacteriz[es the state’s] bility paroled that he a few Ramos, choices.” California years, again. kill free to He contends that 1004 n. 3455 n. because Illinois had parole eliminated at the (1983). L.Ed.2d 1171 Del Vecchio has not sentenced, time he was see ch. Ill.Rev.Stat. prosecutor’s shown that the statements were 1003-3-3(d), § prosecutor’s state- more, inaccurate. What’s is an there irrefut ments were inaccurate. He claims that the accuracy ease; able confirmation of in this during state’s use of inaccurate information Court, the Illinois on the two occa sentencing hearing pro- violated his due question sions it visited this in Del Vecchio’s rights. cess case, prosecutor’s determined that the state But Del Vecchio pros- accurately portrayed mischaracterizes the ments Illinois law. 86 471-72, ecutor’s prosecutor 850-51; statements. The never Ill.Dec. at 475 N.E.2d at

1385 by to correct the services opportunity 825-26, no at 544 N.E.2d 321-22. Ill.Dec. provide_” Town would which counsel specific spoken such court has Once 736, 741, Burke, 68 S.Ct. v. 334 U.S. send law, are hard Illinois we matter way on a of (1948); 1690 see also 92 L.Ed. v. differently. See Estelle rule pressed to 862, 903, 103 S.Ct. Stephens, v. U.S. 475, Zant 62, —, McGuire, 112 S.Ct. (1983). Here, 2733, 2756, L.Ed.2d 235 (1991) (“it the is not 116 L.Ed.2d question prose the there is at best court to reexam habeas province of a federal false; “experts” were cutor’s references law on state determination state court ine the false, though, vague the and indirect if even Chrans, F.2d v. questions.”); Williams “extensively certainly were not statements Cir.1991) (“If law, (7th the materially the false”. because and And tribunal, an provided by the state’s construed indirect, vague and it is were statements result, should then the writ unconstitutional jury the relied on them questionable whether ground that the on the granted, but not be Even if “pronouncement its of sentence”. law.”). Therefore, its own know state doesn’t Del claims were all Vecchio the statements process denied his due was not material, false, prejudicial and were — jury state just the heard the rights because enough. Del Vec- pivotal would not be highest court experts; the —it about ments any “opportunity correct” had the chio dis we do not has ruled —and the state might have misperceptions the statements accurately char the statements agree —that jury provide the But he failed caused. Illinois law. acterized law, that, there his under Illinois view In might paroled. possibility no he be was disre permitted Even were we sentencing stead, testimony at the in his Court, to ac Supreme gard the Illinois possibility the that he hearing, he raised state argument the cept Del Vecchio’s “my of me that might paroled: part own be interpreta possible one were —under ments well, life, hang in say clings to wants to inaccurate, enough to not be would tion — maybe there, somеthing happen, maybe will In order the sentence. overturn death old, my you’re other you’ll get out before on the basis a death sentence overturn well, says than as has been part better information, the jury the heard inaccurate mistake, they said, Board made one Parole inaccuracy must be one “constitutional sum, In likely to make another.” are not Tucker, 404 v. magnitude.” States United process viola not show a due Vecchio does 30 L.Ed.2d U.S. statements.5 prosecutor’s tion because (1972). means the circumstances That there possible inference that must raise Equal protection. designed pronouncement or was a “careless held, Supreme Court has Illinois extensively so on a foundation of sentence law, statutory that a Illinois false, prisoner had as matter materially which the case, right a matter of to be on heard argument United due in this oral 5. After at -, v. South 114 S.Ct. at 2192 importance. decided Simmons States Carolina, Court Simmons - -, ("The U.S. allow the Process Clause does Due Simmons, (1994). prosecu- In L.Ed.2d 133 person the basis of informa ‘on execution argument about defen- pursued a tors line deny opportunity to or he had no tion which ” response, dangerousness.'' In dant's "future Florida, quoting explain,' Gardner informing requested an instruction defendant L.Ed.2d 393 possibility jury that there no he was requested (1977).). Here Del never trial paroled Carolina law. be under South South Carolina to the one the similar instruction instruction, defendant, and the court denied the Vec- does Del in Simmons. Nor rejected sexually physically assaulted who had way prohibited in that he chio contend (including own elderly women least three grandmother) that un informing jury about his view fourth, killing a sen- before possibility would no he there was der law Illinois appeal, United direct tenced to death. On question anything paroled. If he raised the death sen- reversed States musing Board” and tence, give defen- about "Parole ruling failure to himself that the Simmons, impossibility proffered Unlike getting [he's] dant's instruction before old.” "out process rights. parole explain. his due deny violated He opportunity to every apply here. does not Simmons right Simmons heard. to be denied his was not decision on defendant's the court rested its 1386

prosecutor’s possibility results, statements about the The fact that different based on parole capital cases, are not future relevant different facts and different were sentencing hearing. cases, In at four least achieved does not mean that the later case (Brisbon) imposition former, that court has overturned the overruled the Del Vec- penalty prosecutors the death because I. made chio The rule of I Del Vecchio not was explicit possibility parole changed by references to the Brisbon so that the rule of Del Walker, arguing jury. People only Vecchio, when to the v. I apply Vecchio would to Del 502, 531, contends, thereby Ill.2d 64 Ill.Dec. 440 N.E.2d 83 as he raising nоw consti- (1982); Szabo, People questions v. 94 Ill.2d equal protection tutional (1983); People process, eighth Ill.Dec. 447 N.E.2d 193 v. due or an amendment vio- Brisbon, 106 Ill.2d 88 Ill.Dec. applied lation. The rule in both Del Vec- (1985); and, Gacho, People N.E.2d 402 chio I and Brisbon is the same. Different Ill.2d 119 Ill.Dec. 522 N.E.2d 1146 results were achieved under different (1988). Apparently, Supreme the Illinois facts. has though Court determined even 135 Ill.Dec. at 544 N.E.2d at 322. prohibit explicit Constitution does not refer argues Del Vecchio that the Illinois parole during capital sentencing ences to Supreme Court’s refusal to extend the Walk Ramos, hearing, see 463 U.S. at er rule to the facts of his case violated his place such references have no equal protection rights. equal protec But an Illinois courtroom. tion violation occurs legal when different appealed When his death sen- arbitrarily standards applied are similarly Supreme Court, tence to the Illinois he Florida, situated Dobbert v. defendants. prosecutor’s claimed that reference to 282, 301, 53 L.Ed.2d sentencing “experts” hearing violated (1977). Court, Supreme The Illinois and argued this Illinois law. He that his death case, the district court in this held sentence should be overturned like those in Del similarly Vecchio was not situated to the (Brisbon and Walker Szabo and Gacho had Walker, Szabo, Brisbon, defendants decided). yet not been Supreme The Illinois Gacho. most basic difference those ruled Court that Del Vecchio was not entitled courts was that prosecutor’s found while the protection

to the it carved out in Walker: comments in Del vague Vecchio’s case were distinguishable find “[w]e Walker in that nondescript, prosecutors Walker, there is no evidence that possibility of Szabo, Brisbon, and managed Gacho all parole was a jury’s factor considered in the respective juries inflame by explicitly deliberations.” Ill.Dec. at 475 N.E.2d indicating if the defendants not were at 851. executed, paroled. would be Supreme Sometime after the Illinois Court course, Of Supreme the Illinois Court’s resolved Del Vecchio’s direct appeal, it decid- distinction appeared in Del Vecchio’s case Brisbon, again ed it applied where the rule it arbitrary, might it equal protection raise con- established Walker. When Del Vec- cerns. But the Illinois Court’s han- brought court, appeal chio second to that dling of Del appear Vecchio does not arbi- argued that Brisbon extended the rule trary. carefully That court considered Walker, stated in so that he entitled to was protection Walker, carved out in and deter- have his death sentence overturned. The mined that Del Vecchio was not entitled to it. responded court simply re- Brisbon The court principled made a distinction: the Walker, stated the rule established in “experts” reference to in Del Vecchio’s case reaffirmed that Del not entitled vague nondescript while thе other protection by afforded that rule: specific cases parole. involved references to I, noted We above that in Del Vecchio we The Illinois certainly did subjected complained-of remarks equal protection offend the by clause refus- Walker, the test of holding our ing as well protection extend the Walker to the as to the constitutional test. unique Brisbon was of Del facts Vecchio’s case. That decided applying also the Walker test. protection; established this that court (7th States, 403 F.2d v. v. United Estelle limits. See its to define is entitled Cir.1968). is evidence because there Just at -, at 480 McGuire, 112 S.Ct. 502 U.S. 1965, not drugs in does Del used that Vecchio habeas (“it of a province federal is not the Motzny he that lied when necessarily mean determi the state court to re-examine statements. We add about Illinois testified Yvonne’s questions.”). law nation on state analysis, in that order the district court’s scope to determine can best Supreme Court violation based on a prove constitutional evidentiary rulings. of its own of one testimony, was re- Del Vecchio perjured knowingly prosecutors quired to show the Perjury B. allegedly intelligently introduced evidence introduced Del Vecchio Illinois, testimony Burnett v. trial. false at he was sentencing hearing that his death Cir.1980). (7th Del But F.2d 674 619 Tony young drugs when he killed high on knowledge. of presents no evidence Vecchio a miti that was claimed this He Canzonieri. docu- presents the above mentioned He against imposing circumstance gating say conclusively that If we cannot ments. evi countered with The state penalty. death drug in 1965 based was a user Del Vecchio always blamed that Vecchio dence Del documents, conclude we also cannot on the argued that drug use. violence drug Motzny use but knew about that Officer malinger dangerous more a Del Vecchio worse, prosecu- falsely, testified to be feared, just drug addict than to be er testimony and intro- of false tors knew his state called point, the To bolster this pitied. anyway. duced He Motzny as witness. police officer John Fred of investigated the 1965 murder had Hearsay Parte C. Ex that Del Vecchio testified He Christiansen. argument support the To further in 1965—that excuse the same had used dangerous malingerer that Del Vecchio was murder. time drugs at the of high on when he of his faculties who was control questioned that he had Motzny also testified murder, two ex Vecchio, the state called committed mother, Yvonne Del Del Vecchio’s hearing: testify sentencing at the perts to that her son knew whether she 1965 about clinical psychologist, Rogers, Dr. Richard Motzny, she stat According to drugs. used Cavanaugh, a psychiatrist. Dr. James drug use of unaware that she was ed that, opinions, They their both testified her son. time of the sane at the “was Del Vecchio Motzny committed claims Del Vecchio malingerer offenses, sociopath and a awas Yvonne’s testified about perjury when he not suffer offense was at the time who of has submitted Del statement. dis mental or emotional ing from extreme meant in this case number documents Vecchio, 86 Ill.Dec. at tress.” consist The documents perjury. prove the They further testified at 851. N.E.2d indicate mostly police records which reports from other perused medical of Del Vecchio’s evidence there was some Vecchio, had examined Del psychiatrists who reviewing infor this After drug use in those reached and that the conclusions case was not mation, court in district Vec opinions. Del reports supported their sum See perjury occurred. convinced that his Sixth that he was denied chio now claims evidence, documentary and district mary of witnesses be right to confront Amendment v. at Del Vecchio legal court’s conclusions Cavanaugh al were Rogers and cause Drs. Corrections, F.Supp. Dept. Illinois psy other conclusions repeat lowed (N.D.Ill.1992). need not We 1418-19 testify. present who chiatrists were the le documentary evidence recount the use of long sanctioned But courts have say that It here. suffices gal standards sentencing. v. United hearsay Roberts analysis of the district court’s agree we States, 100 S.Ct. evidence, the evi its conclusion (1980); States United 63 L.Ed.2d “palpa type establish does not dence (7th Cir. F.2d Agyemang, 876 or untruth” contradiction testimonial ble Beal, 1989); States v. also United see Anderson perjury. necessary indicate (7th Cir.1992); F.2d Fed.R.Evid. fession was not taken violation of Mi 1101(d)(3). exception so, There is no contends, this rule randa. Even York, capital in a case. Williams v. New 337 confession should not have been used 1079, 1085, sentencing hearing, U.S. 93 L.Ed. place which took (1949); Georgia, see also Green v. 442 well after Miranda was decided. But even (1979) 60 L.Ed.2d accept we were to Del Vecchio’s contention hearsay (application preclude rule to that the confession was taken in violation of Miranda, introducing mitigating defendant from evi- require violation would not sentencing capital dence at in a case violates during exclusion of the confession the sen process). due The tencing proceedings. Constitution allows the exclusionary The rule hearsay relaxed, quite simply, rules to be generally inapplicable during sentencing. expand deposit of information McCrory, 63, available See United States v. 930 F.2d sentencing (D.C.Cir.1991); tribunal. The Torres, 69 United States v. (3d principle: has summarized this Cir.1991); 926 “[a] F.2d 325 United may appropriately Graves, inquiry (10th conduct an broad States v. 785 F.2d 873 scope, largely Cir.1986); Butler, unlimited either as to the United States v. 680 F.2d (5th may consider, Cir.1982); kind information he or the 1055 United Schipa States v. Roberts, ni, (2d may Cir.1970). source from which it come.” 435 F.2d 28 See also Powell, 445 U.S. at 100 S.Ct. at 1362. 486-87, Stone v. 428 U.S. 3037, 3049, (1976). S.Ct. 49 L.Ed.2d 1067 The trial court in Del Veechio’s case al- exclusionary The rule would espe have been lowed this evidence under Ill.Rev.Stat. cially here, inapplicable where there was re 9-l(e), par. ch. permits the аdmis- ally no applying rule; deterrent effect in hearsay sion of capital evidence at a sentenc- any police misconduct would have occurred ing hearing. protects That statute the de- years fourteen before the confession was in by fendant providing given that he “shall be McCrory, troduced. 930 F.2d at 69. opportunity a fair to rebut information hearing.” Constitution, received previously As with the hearsay discussed also, requires that given the defendant testimony, be might evidence which be inadmis- opportunity to rebut evidence which guilt phase makes sible at the of a trial can be way sentencing its into the hearing because admitted at sentencing phase, long as evidentiary of the lax See, standards. Agyemang, Roberts, the evidence is e.g., reliable. 876 F.2d at 1271-72. given Del Vecchio was 1362; Graves, 445 U.S. at 100 S.Ct. at opportunity. this He had access to the con- 785 F.2d at 875. Del Vecchio has done noth- hearsay reports; tested he could ing impugn have cross- reliability of the confes- Rogers sion; examined Cavanaugh fact, Drs. about he used the confession in his reports; he could have called his own sentencing hearing when it suited his experts. given Because he was opportu- Therefore, case to do so. the trial court did nity heard, to be he cannot now succeed on not violate the admitting Constitution this constitutional claim. during confession the sentencing hearing. D. Miranda Jury E. Instructions

Del Vecchio also Finally, claims that argues that the stan 1965 confession was taken ‍​‌​‌​‌‌‌‌​‌‌‌​‌​​​‌​‌‌​​‌‌‌‌‌​‌​‌​‌‌‌​‌​​‌‌​​​​​‍in violation of dard penalty jury Illinois death instructions Miranda, 384 U.S. 86 S.Ct. 1602. He failed adequately jury inform the how to argues, this, because of weigh that the aggravating confession mitigating factors. should not have been used in the 1979 sen He concedes that Silagy our decisions in v. tencing hearing Peters, (7th should pre have been Cir.1990), 905 F.2d 986 —it exclusionary cluded under Chrans, (7th rule. But the Williams v. 945 F.2d 926 Cir. 1991) Court has held that Miranda does passed adequacy which we on the —in apply not retroactively. Johnson v. New of the instructions —resolved this issue in Jersey, 719, 721, however, favor argues, of the state. He (1966). Therefore, 16 L.Ed.2d 882 Peters, the con- the district court’s decision in Free v. time, normal, the first light, or stiff sentence (N.D.Ill.1991), F.Supp. F.Supp. strategy “appear” said to it could be law (N.D.Ill.1992), this circuit’s called failed, severity second trial. leading to on the the law we reaffirmed But question. into — States, Liteky v. But United see Wellborn, Gacy v. Williams Silagy and (1994). -, 127 L.Ed.2d 474 (7th Cir.1993), we F.2d a case involv- By approach hearing a similar court’s decision the district recently reversed judge’s litigant who used be ing a (7th Peters, 12 F.3d 700 Free in Free. client, lawyer who presented by or a case Cir.1993). Therefore, Silagy and Williams convey partner, would a bad used jury of this circuit. the law remain rule based on appearance. disqualification A constitutionally are instructions issue litigants would lawyers and connections to deficient. of all cases majority of this court relieve government, because involving the national Y. Department formerly worked six of us George gave Del Vec- state of Illinois The of Justice. mur- Tony Canzonieri’s fair trial for chio a many persons would feel appreciate I that requires more. no Constitution der. The judges if did not hear more comfortable extent the the affirm district We categories. See United States eases these petition. We reverse it denied the that (7th Cir. Murphy, 768 F.2d 1536-41 an to order evidentia- court’s district decision 1985). by law has marked American been of voluntariness ry hearing on the rules of dis progressively more restrictive confession, instructions and remand changing views of responding to qualification, petition. deny the White, judicial G. Edward role. See Legal Thought 99-143 American Patterns part, and part, reversed Affirmed of (1978). statutory Developments in and com deny the instructions remanded with back, through the due not feed mon law do petition. clauses, part of the Con to become process years than hundred For more two stitution. EASTERBROOK, Judge, Circuit norms as treated law has ethical American concurring. living legislators and of control within the a few majority’s opinion and join add I contempo suit judges, alter the rules to who “ap- question whether thoughts on the conduct. understandings judicial of wise rary presiding of pearance impropriety” judicial and codes of Disqualification statutes conviction violates judge means that century. of the twentieth the work ethics are amend- the fourteenth process clause of due judges who disqualifying federal statute ment to the Constitution. biased, § was enacted 28 U.S.C. are everywhere, lurk problems “Appearance” In 1942 the Conference 1090. 1911. 36 Stat. A eye (the the beholder. of precursor for are Judges of Senior Circuit States) might believe suspicious observer United of the Conference the Judicial in his easy” judges on Del Vecchio discouraging “went adopted a resolution creating appearance near relatives prosecutor, in which sitting role in cases from up down to make judge cracked lawyers. that as 28 A.B.A.J. were See argument (1942). practice brand of had been This then the for his mistake. Until for Suppose Prosecutor Gar- of Conduct A formal Code cannot be cabined. common. adopted in for Judges an adult sentence was first ippo had insisted United States any require say Vecchio; skeptic not then 1974 was there our Not until sitting judges from line refrain knowing hard federal Judge Garippo, ment that reasonably be might work, impartiality in- would be more when their had not done its 455(a). § The Consti death, means 28 U.S.C. questioned. as the sure to favor clined ratchet, ensuring argu- of not contain same kind tution incapacitation? The does of appear every protecting rule new Judge Garippo’s en- could be made ment insulated becomes propriety as a ance of been counter with every actors and change by political gave a Whether he in an case. judge earlier improvement statutory applies political federal law Hepburn neck. See v. Griswold, judiciаries. (75 U.S.) to state (1870); 8 Wall. 19 L.Ed. 513 (79 Cases, Legal U.S.) Tender 12 Wall. The due clauses come from En- (1871); Fairman, 20 L.Ed. 287 Charles glish jurisprudence, simple had a rule: History VI disqualified pecuniary “a for direct of United States: Reconstruction and Reunion nothing interest and for else.” John P. 1864,-88 (1971). Frank, Part 1677-775 Did ah of the Disqualification Judges, 56 Yale (1947). rejected L.J. British members that Court miss the law constitution proposition judges disqualified implications step? could be al of such a The First Congress bias of other kind. Id. at 609-12 Judiciary enacted a Act that led (recounting English cases and commenta- appeals Justices hear from their own deci tors); Blackstone, see also William 3 Com- sions on circuit. until Not with the England mentaries on the Laws *361 appeals, creation of the courts of was the (1768). The took United States over that procedure “appeal” for an from a tradition, through century the nineteenth abolished.† himself legislators Did judges difficulty sitting saw no when their judges years for 114 appreciate fail to (or parties lawyers), relatives were or in “appearance” problem, and thus the uncon hearing appeals from their own decisions. stitutionality judicial of the entire federal White, History See G. Edward III system? Vestiges system of the old are evi Supreme Court the United States: The today’s dent in decision. Three members of Change, Marshall Court and Cultural 1815- en panel banc court were on the and so (1988); Currie, 85 181-200 David P. The visiting are this case for a second time. All Constitution in the Court: The three believe that their first decision was (1985); Frank, First Hundred Years 76 56 correct; problem does this create a under Yale L.J. at 615-18. process the due clause? legal judicial Our culture’s most revered may say Whatever prudence one about the decision, Madison, (5 Marbury v. 1 Cranch of Chief Justice Marshall’s decision to sit U.S.) 137, (1803), 2 L.Ed. 60 was rendered Marburg, or Chief Justice Chase’s to sit in just John happened Marshall —who to be the cases, greenback I do not think that litigation. cause of Secretary of State either violated the Constitution. See Laird Marbury’s Marshall left commission behind Tatum, 824, v. 409 U.S. 93 S.Ct. in his desk at the end of the Adams Adminis (1972) J., L.Ed.2d 50 (Rehnquist, in cham departed tration when he to become Chief bers) (collecting examples); other United opinion Justice and write disposing of the Bonds, (6th Cir.1994) States v. 18 F.3d 1327 ensuing litigation. Justices, Did the other all J., chambers); (Boggs, Schurz Communi active in writing approval or of the Con cations, FCC, (7th stitution, Inc. v. 982 F.2d 1057 glaring overlook a violation of the Cir.1992) (Posner, J., chambers). due clause the fifth These amendment? Chase, dangers Chief incidents also show present inferring Justice the creation amendment, prejudgment prior of the fourteenth from judg sat in activities: Chief Jus ment on constitutionality tice green of the Chase confounded President Lincoln’s legislation back Secretary expectations he had devised by voting as legislation to hold the had, Treasury of the for unconstitutional, which he risked and Chief'Justice Marshall †The Justices did not have to sit in review of participate the district in the review of they decisions participated in which had practice on cir his own decision. The became common cuit, but did. The situation of district federal-question after when the addition of judges complex. Judiciary jurisdiction was more coupled Act shortage with the of circuit provided judges, sitting judges obliged these when circuit courts to convene with courts, appeals circuit could not judges hear from the district in attendance. See Wal- Hill, their publish opinions own but decisions could ter B. System, The Federal Judicial 12 A.B.A. explaining original (1889). Rep. their practice decisions. 1 Stat. did not end until (1789). Congress When in 1793 reduced the Evarts Act of 1891 created the institution that two to one the number of Justices needed to in 1911 was titled the United States Court of court, constitute a obliged Appeals. circuit this sometimes Blackstone, *361. The Commentaries W. from fellow-Feder- commission withheld the trend been towards more recent has Marbury. alist disqualifi- permit adoption of statutes “ap for disqualification My conclusion Berger v. prejudice. See for bias or cation subject for is a impropriety” pearance States, 22, 31, 41 255 U.S. United law, ethics, and common statutes, codes of (1921) (enforcing L.Ed. 481 command, would a constitutional rather than judges in cer- federal disqualifying statute if the interest of but academic or personal for bias circumstances tain con to the authoritatively decided also ABA Code Judicial prejudice). See constitutional of that Court’s trary. None (“A (1980) 3C(l)(a) Conduct, Canon “ap however, decisions, establishes he has ... where disqualify himself should actual opposed to problem pearance” —as concerning a prejudice personal bias To the con judgment. bias—invalidates not be suffi- that alone would party”). But exactly the of the cases theme trary, the imposing a constitutional cient basis judge with a financial rule: common law Due Process under requirement may not the case the outcome of interest New held in Patterson v. La We Co. v. Clause. E.g., Aetna Insurance sit. Life 197, 201-202, York, 97 S.Ct. 89 L.Ed.2d 432 U.S. voie, 106 S.Ct. 475 U.S. (1977) (citations Monroeville, omit- 409 U.S. (1986); 53 L.Ed.2d 281 Ward (1972); ted), Tu L.Ed.2d Ohio, mey v. power of the normally it is within time, (1927). same At the L.Ed. 749 under regulate procedures State creates of bias evidence Court tolerates ... and its are carried out its laws problems: “appearance” undeniable subject regard in this decision Embry’s gener contends Justice Appellant Due Process proscription under companies hostility towards insurance al principle some unless offends Clause claims, as paying dilatory in that were in the traditions so rooted justice requires con deposition, in his expressed to be ranked of our people conscience Process Clause the Due clusion as fundamental. disposi in the by participation violated allegations of not decide whether We need recog has The Court this case. tion of type we by judge of the prejudice bias or of-judicial quéstiоns “[a]ll not nized that under ever be sufficient have here would va constitutional ... qualification involve force recusal. Process Clause the Due kinship, personal of lidity. Thus matters of most Certainly only in extreme interest, of bias, remoteness policy, basis on this disqualification cases merely be matters generally to would seem appel- constitutionally required, and Ohio, Tumey v. legislative discretion.” fall well below arguments here lant’s 437, 441, 71 510, 523, 47 S.Ct. 273 U.S. Justice suggests Appellant level. (1927); FTC v. Cement see also L.Ed. 749 insur- general frustration Embry’s 793, 702, 683, Institute, 68 S.Ct. 333 U.S. disqualifying companies reveals ance (“[MJost (1948) matters 92 L.Ed. many bias, likely that claimants but it is not [do] judicial disqualification relating feelings from the developed hostile have level”). Moreover, to a constitutional rise of insur- awaiting settlement in frustration was that rule common-law the traditional side, Insurers, on their ance claims. prejudice was or disqualification for bias task, trying to especially when easy no See, e.g., Clyma v. Kenne permitted. not diagnos- medical whether certain evaluate (1894). See A. 539 dy, 64 Conn. were hospitalization prolonged tic tests Frank, Disqualification generally sur- turn, physicians and In (1947). indicated. Black As Yale L.J. Judges, 56 by impelled valid medical geons, whether suppose a it, not “the law will put stone future apprehension as to by judgment or judge, who of bias or favour possibility some combination claims —or malpractice impartial already sworn administer prob- similarly face difficult of the authority greatly de justice, and whose two— allegations of bias Appellant’s lems. presumption and idea.” upon that pends basis, general however, CUMMINGS, prejudice on this joined Judge, Circuit CUDAHY, RIPPLE, ROVNER, are insufficient constitu- establish Circuit tional Judges, violation. dissenting. Aetna, 820-21, 475 U.S. at 106 S.Ct. at 1585 Judge Garippo ought presided not to have — (brackets original). Liteky, See also over the Canzoneri trial. His in- intimate at -, 114 S.Ct. at 1155-57. U.S. volvement proceeding; Christiansen Cases sometimes examples treated as the unfortunate connection between the dis- problems “appearance” actually have differ- position of that case and Del Vecchio’s subse- emphases. example, Mayberry ent For v. quent behavior; murderous the necessity of Pennsylvania, 400 U.S. 91 S.Ct. 27 ruling, judge, regarding decisions that he (1971), judge L.Ed.2d 532 held should previously himself had prosecutor— made as preside in not a case in which he was the all of suggest, these factors words contemptuous of a crime. victim The re- majority, page ante at such an marks had been judge, directed to the “actual incentive ... to be biased” that recu- although practice historical would have al- required. sal is The Due Process Clause judge summary lowed the pun- mete out the Fourteenth Amendment mandates this ishment, it judge did not preside allow the result even if in case the was not Murchison, a later trial. re in fact biased. (1955), 99 L.Ed. 942 dealt majority concludes otherwise. Our prosecutorial judi- with combination of disagreement part differing to our duе cial functions that left only interpretations of ju- recent Court about possession confused his role also in but risprudence. greater Of import, much how- of evidence he should not have known. See ever, disagreement is our actually over what Larkin, Withrow occurred the Christiansen and Canzoneri (1975). 43 L.Ed.2d 712 Thus proceedings. majority’s version is as Murchison holds that process the due clause follows: Garippo] “[Louis tangen- requires a trial to be limited to evidence tially involved in prosecu- Del Vecchio’s 1965 court, heard not that the pre- Constitution tion. His regarding prosecu- decisions adjudication cludes judge ap- whenever tion had if anything little to do with Del pears prejudged to have “ap- An matters. being a free man in when he pearance” impropriety alone has never led Tony killed Maj.Op. Canzoneri.” page party to find that a did Moreover, ante. because the sentence not receive due of law. that Del upon Vecchio received his transfer proper judicial Our notions of conduct are youth ‍​‌​‌​‌‌‌‌​‌‌‌​‌​​​‌​‌‌​​‌‌‌‌‌​‌​‌​‌‌‌​‌​​‌‌​​​​​‍from a facility to an penitentiary adult

just propriety that —ideas about rather than very was the same minimum sentence that about constitutional everyone minima that applied would have initially had he been con- accept. why must That is the Court distin- victed and tried after his seventeenth birth- guished in Aetna a financial between stake in day, majority claims that the decision to the outcome of the case and a dislike of expedite Del merely Vecchio’sindictment “al- companies. Judges insurance legislators spend [him] lowed to years the first four may alike be held accountable when their youth his sentence in a facility, correctional proprieties ideas about public lead the to prison.” rather than in an page adult Id. at quality justice that believe has deterio- 1378, ante. perceptions rated —even if the are incorrect. Dealing problem with this important is an majority then concludes that living; task for the ought pretend we Garippo was unlikely to partic- have had that it was settled years ago, two hundred ularly strong feelings sort of feelings —the that everything contemporary out of arguably pre- make him unfit to to, judges hands. Federal are free side over the Canzoneri trial —about the fact should, expect more than the constitutional that Del Vecchio prison was freed from after themselves, minimum from but we cannot just killing Christiansen in time to com- second, insist the states do likewise. gruesome mit a murder. Id. In- took proceedings The entire Christiansen suggest, as to goes so far deed, majority initially Vecchio was Garippo a month —Del less than analogy, lengthy February when he in interrogated his role have remembered even might not killing, and he Del Vec- by the to the Christiansen time confessed case the Christiansen on Febru Canzoneri sentenced guilty him the and was pleaded before apрeared chio People if a v. Del year. ante. And page that same ary trial. Id. which, Ill.Dec. Vecchio, of circumstances Ill.2d not even aware against a denied, him him, might (1989), bias known to certiorari 544 N.E.2d princi- due it violate how could 108 L.Ed.2d 779. party, So reasons at trial? preside to for him re ples “probably” Garippo During that time majority.1 concerning Del Vecehio’s memoranda viewed He Dep. at 6. Garippo confession. initial plausi- were even of events If this version partner trial to his former assigned the case However, the today. ble, dissent I would not in the involved He was prosecute. Id. role to Garippo’s both majority has obfuscated as an adult. Del Vecchio prosecute to Del Vec- decision prosecution in the Christiansen expedite to the decision on the 10. He made biasing influence Id. at theory itsof chio’s him First, as to allow Garippo was indictment so Del Vecchio’s proceedings. Canzoneri of the seventeenth birth prosecution prior to his plead guilty intimately to involved attended, Second, the decisions as He even day. case. Id. at 17-18. Christiansen directly influenced plea and sen guilty in that case made Del Vecchio’s spectator, that he again kill 1977. being free 19. It is hard hearing. Vecchio’s Id. at tencing made when he Third, during aware Garippo was decisions any prosecutorial imagine well result could in Garippo those decisions was not that month with Finally, the imminent release. Del Vecehio’s volved. Garippo re- clearly establishes record noted, there Indeed, himself Garippo as in the Chris- role extensive his membered to be important only two decisions were appeared first Del Vecchio ease when tiansen prosecute Del made the case: the Canzoneri trial. him in before adult, expedite and whether anas that results of bias appearance Thus made Id. at indictment. over Garippo to sit allowing the Chris- Clearly involvement his both. to evalu- subsequent trial —and Del Vecchio’s tangential. much more than tiansen prosecu- his own propriety of earlier ate the through- key decision-maker Garippo was the such that decisions—is torial proceedings. out law. Cf. process of clearly due denied Lavoie, Company the decision Second, Aetna Insurance it is clear Life effect indictment —the expedite Del Vecchio’s may (“The Clause receiving Due Process postpone L.Ed.2d 823 his of which was to have no by judges who twenty-first trial bar sometimes after until adult sentence high its perform length But bias.... actual influenced the birthday directly— satisfy justice must way, best function contributed therefore that sentence and (Internal quota- justice.” appearance Tony free, to kill being in Del Vecchio’s omitted.)). citations suggest, tion marks and sophistry It mere Canzoneri. ante, 1377-78, majority pages at does the as not, majority First, as the Garippo was judge in happened that the just so that “It claims, “tangentially” involved merely retrospect, In lenient. to be 1971 decided is clear The record prosecution. Vecchio Del asked telling no there is involving Del Vec- major every decision in 1965 as an adult Vecchio Del sentence in the Christiansen prosecution chio’s Granted, Del lenient.... have been by Garippo. approved either made hypothetical disclaimer this Despite the majority later reasoning, in- introducing 1. In mind, at Garippo id. meant to following hypo- is not call to "Consider vites the reader any other to discern is difficult page n. of circum- judge who unaware thetical” —a fact-pat- suggestive him, employing such a would, clearly reason known stances tern. Maj.Op. page ante. at require his recusal. ultimately light Third, Vecchio received a majority sentence incorrectly portrays murder], light [for the Christiansen but this the nature of the decision Garippo made treatment prosecutor because of expedited when he the indictment so that Del Garippo.” plead guilty prior Vecchio could to his seven- birthday. majority teenth suggests reasoning credulity. This strains In 1965 1378, ante, page that “the break Del widely perceived Del Vecchio was drug- as a Vecchio received quick because of the indict- suggestion crazed killer. The if Del ment spend was that he was allowed to Vecchio had been sentenced at that time he years first four youth of his incarceration in a would have received statutory minimum facility, correctional rather than in an adult newspapers is absurd. In 1965 the abounded prison.” course, Of the other “break” Del who, with stories about “teen addicts” opportunity received was the to re- “high goofballs,” “shot victim [their] prior habilitate himself sentencing. But times” in order to recover eleven dollars. putting side, this to one it is clear that the Indeed, February in March 1965 there by Garippo decision made was more momen- major were at least 39 in papers four stories majority tous than the recognize. chooses itself, about the gentle crime character of Garippo’s expedite decision to the indict- victim, the brutal perpe- natures of the ment created the risk that Del Vecchio would trators, and the heroism the detectives be spending any released without time at all crime, who solved the background well as indeed, in facility; an adult it created a risk about the drug stories trade. R. 13-4. A that he would be immediately. released judge in presented 1965 would be with infor- provided 1965 Illinois law that a male con- overwhelmingly mation that militated fa- victed and sentenced as an adult before his sentence; vor of a substantial he would be seventeenth birthday was committed to the presented with almost no information in miti- (IYC) ' Illinois Youth Commission with no gation. mandatory minimum term —the IYC could immediately release him or at prior time But George Del Vecchiо who was sen- twenty-first birthday. his When he tenced in 1971 to statutory minimum twenty-one, turned the IYC could release appeared very as a George different him or transfer him to an adult penitentiary, Vecchio from the one who would have been (1963), § Ill.Rev.Stat. ch. apparently Garippo sentenced 1965 if initially with or without a sentencing. new Garippo delay chosen to By the indictment. 1971 Del Dep. By contrast, at 12-13. had Del Vecchio Vecchio had years been afforded six in which just been convicted and sentenced after his image, to refurbish youth his facility four seventeenth birthday he would have been penitentiary. and two an adult He was so sent to penitentiary an adult with a minimum successful that the staff the Illinois Youth years sentence of fourteen and a maximum unanimously objected Commission to his sentence of life prison. Ill.Rev.Stat. ch. transfer to an facility, adult instead recom- (1963). § 9-1 mending parole. immediate PX. 4 at 24- prosecutor Even the at Del Vecchio’s majority therefore overlooks the im- sentencing commented that he had done port allowing Del Vecchio to be sentenced everything possible to rehabilitate himself. just to, prior after, just rather than his sev- 4PX. at 32. Del relatively Veechio’s short birthday. enteenth When made the clearly sentence 1971 was attributable to crucial decision to expedited allow an indict- apparent rehabilitation since 1965.2 That ment placed society at risk that Del Vec- he had the opportunity to rehabilitate himself chio would serving released before any- prior to sentencing awas direct thing result of the statutory like the minimum term. In expedite decision to his indictment and there- majority face what the itself character- by delay sentencing. his adult izes, ante, page 1367 as “enormous publicity” majority recognizes 2. The page itself sterling this fact on [Judge Fitzgerald] record and Richard 1368, ante, "During stay when it notes that at apparently took that into consideration." youth facility, Del Vecchio had achieved a may have influenced— eially hindsight, in not drug gain to of violence aet[ ] “random a for may any had or, not have importantly, more almost-unprece- time an money” —at judge in his possibility to influence —the chose, real for whatever Garippo dented event— page Maj.Op. at decision-making process.” eligible for re- reason, Del Vecchio make to majority discusses at And as the ante. twenty-first prior to his any time at lease if, by the case length, would be some this feel, contrary to over- birthday.3 Did he chance, totally ignorant of judge were Del Vecchio opinion, that whelming public him, that, to if known those so, subsequent circumstances If then was rehabilitable? These obser- to be biased. would cause him wrong. What- tragically him proved events bearing vations, however, absolutely no granting Del Vecehio’s for reasons ever his Judge Garippo was bar. indictment, on the case at Garippo expedited request for an of the circumstances completely aware risks attendant of the substantial was aware argues placed him under Del Vecchio now to be sentenced allowing Vecchio Del upon only question is The conflict of interest. turned seventeen. before he provided circumstances these —in expedite the to decision Garippo’s curious majority, page 1371 ante— words of the backdrop for his form the indictment must [Garippo] to be ... for “actual incentive had been that Del Vecchio discovery later biased.” murdered prison released severing his head. by partially child small question is obvious. to this The answer unreasonable backdrop it is Against key every Garippo made decision have had an Garippo could to conclude that including a decision prosecution, Christiansen learning that immediate, reaction to visceral society at risk of Del Vecchio’s placed trial. at the Canzoneri preside to he was directly re- This decision imminent release. light sen- eventual in Del sulted Vecchio’s majori- suggest, as does to It is absurd early Vecchio release. When tence have remem- might not even ty, Garippo horrifying senseless again, killed by the in the Christiansen his role bered fashion, situation any judge Garippo’s him in the appeared before time Del Vecchio connection strong personal have felt a very “Del Vec- name Canzoneri trial. Indeed, Garippo’s the case. Judge Garippo recalled chio” must have Del Vecchio might have felt that position well Addicts’ “Teen had blared the headlines that judge’s] sweatshirt” —a had “dirtied [that Died’—‘He ‘Laughed as Victim Slay Story: to describe by Garippo himself phrase used In- Screaming.’” R. 13-4. Stop Wouldn’t if someone “very he would feel offended” how clearly triggered deed, name Del Veeehio’s not to have leniently proved he had treated Garippo went out response, since some (cid:127) Garippo Dep. at 32. it. deserved the Chris- and review way to obtain of his trial. prior to the case file Canzoneri tiansen a defen trial the Canzoneri At the time of case, prompted the recollec- any whatever with rea “[could] dant such as Del acknowledged in his tion, explicitly get a fair could not say that he feared son aware, pri- testimony that he deposition Ohio, Tumey v. Garippo. trial” before trial, own role of his the Canzoneri or to 71 L.Ed. Garippo Dep. prosecution. the Christiansen Judge Gar- require This is sufficient 19-20. inquiry recusal, any further without ippo’s More state of mind. Garippo’s actual into correctly majority observes during and after over, observer, Garippo’s behavior espe- may bad to an appear “[w]hat twenty-first birth- indictment, prior to his release time expedite allow- 3. The decision advantage to the guilty prior to his seven- to see the plead day. ing It difficult Del Vecchio plea to an birthday guilty sentenced and therefore be accepting teenth Del Vecchio's state in puz- youth facility, is indeed Delay- indefinite term expediting the exchange indictment. having com- zling. had confessed Vec- that Del ing would ensure the indictment horrifying widely publicized crime mitted a possi- with no sentence definite chio received a guilly plead to that brutality. offered He release, the detailed bility while of immediate turning prior to his do so if he crime seventeen, could virtually guaranteed conviction. confession opportunity for thereby giving him the trial such preside was as reinforce in the him to over the Canzoneri trial. Id. 277-278, percep- mind of a reasonable defendant the 135 Ill.Dec. 544 N.E.2d 312. Judge tion that a fair trial Garippo before The court reached conclusion that Gar- First, could not be had. because the earlier ippo had not acted as counsel to the in proceedings inextricably Christiansen were the Christiansen case on the basis of an many linked to issues that arose in the Can- by Garippo stating affidavit submitted trial, Judge Garippo zoneri was forced to performed had two regard tasks in many prosecutorial revisit of his earlier deci- assigning prosecuting it at- case— placed sions. He should never have been in torney agreeing expedite the indict- position. putting such a But to one side ment. Id. at 135 Ill.Dec. itself, substantive issues raised in the trial N.E.2d 312. He twice characterized in- his Judge Garippo’s regard very in actions to the volvement as “limited.” R. 13-2 at 360-361. possible issue of his disqualification own fact, Garippo’s deposition when was ob- impropriety serve to underscore the of his tained —after the district court in this habeas presiding over the Canzoneri trial. proceeding discovery ordered the that had been denied Del Vecchio the state —it Had the defense Garippo’s aware of been Garippo’s became clear that involvement in extensive involvement in the Christiansen the Christiansen case was not limited to two early proceedings, the Canzoneri it tasks and that his prosecution role was could have filed a motion for substitution of Garippo minor. Had been more forth- judges, right. either for cause or as of Ill. coming during proceed- the state collateral (1963) (amended § Rev.Stat. ch. 114-5 ings, the Illinois might Court well subsequent see 725 ILCS 5/114-5 have reached a regard- different conclusion (1992)). Garippo But did not reveal even the ing whether he had “acted counsel” to the involvement, fact of his earlier let alone its state. extent, Indeed, to the defense. the defense did not discover Garippo’s the fact of involve- picture emerges from this chroni- ment in the prosecution Christiansen until cle of events is of a actively who want- 1986, when all appeals direct had been ex- preside trial, ed to over the Canzoneri Judge hausted. Garippo’s silеnce on this who, having so, done resisted efforts to scru- prevented issue exercising defense from propriety tinize the of that decision. I wish right its replace him. to stress that proper conclusion to draw from this Garippo is not that intended to Even when the issue Garippo’s unfairly treat Del courtroom, in his conflict of interest was raised state merely Garippo but unusually proceedings, collateral Garip- extent of strong in remaining interest on the case. po’s involvement the Christiansen case While Garippo’s preside desire to over was not revealed. Had the defense been quite natural, the Canzoneri given trial is bring able to Garippo’s true role in the Chris- previous experience defendant, with prosecution tiansen before the Illinois Su fact that strongly felt so about this Court, preme it likely this issue would not trial demonstrates unwisdom pre- of his Upon before us now. Del Vecchio’s collat siding over it. satisfy must “Justice attack, eral explicitly that court held that had appearance justice.” Aetna, Garippo “acted as to the state in counsel” 1587, quoting 106 S.Ct. at approval matter, Christiansen then he would have Murchison, In re disqualified preside been over the Canzon- 623, 625, 99 L.Ed. 942. As the People Vecchio, eri trial. v. Del 129 Ill.2d at recently explained, determining wheth- 135 Ill.Dec. 544 N.E.2d 312. It judge’s er a participation in a case violated concluded, however, Garippo’s that because litigants’ process rights due does not role prosecution Christiansen require determining “limited” and thus that he had not “acted as against Aetna, fact party. influenced state, counsel” to the improper was not Rather, U.S. at at 1587.

1397 prefer to majority the concurrence and The is so of appearance bias the sometimes ap- continued the Court’s overlook disqualified judge must be strong that re-analyze language,5 and to proval of this in fact showing that he without to discern order of each the facts biased.4 of deci- actual rule to be the what take taking too for me majority chides an to limit are not sion. But we authorized view, of ‘“appearance strictly to the cases seriously, in its entire line of has facts,6 and Aet- what that Court disregarding Murchison their language from justice’ princi- ante; organizing 1371, also as the explicitly see identified Maj.Op. page na.” ple. generally. concurrence Judge Easterbrook’s readily ap- are process due violations case other under circumstances the

4. Because parent. trial man Canzoneri Garippo presided the over corpus, this of habeas a writ of date issuance language the con utilize For cases that this 5. many Vecchio’s of Del not discuss dissent does issues, see, Pipe e.g., and Concrete text of recusal the state error in of constitutional other claims California, Labor Inc. v. Construction Products of However, by means as amI no proсeedings. — California, Southern Trust ers Pension South v. majority that Simmons sanguine Carolina, the as 2264, 2277, -, -, 124 113 S.Ct. U.S. 2187, - -, 129 S.Ct. 114 U.S. 539; Acquisi- Liljebergv. Health Services L.Ed.2d (1994), inapplicable the facts to is 133 L.Ed.2d 12, 847, S.Ct. 865 n. 108 Corp., U.S. 486 tion 2194, 5, ante. page 1385 n. Maj.Op. at Cf. case. 855; 12, Aetna n. 100 L.Ed.2d 2205 Life future defendant's "where the held that Simmons 813, 825, Lavoie, 106 U.S. 475 Co. v. Insurance issue, prohibits and state law dangerousness is at 823; 1587, 1580, v. Schweiker 89 L.Ed.2d S.Ct. process parole, due on release the defendant's 1665, 196, 188, McClure, 102 U.S. S.Ct. 456 sentencing jury informed requires the be Jerrico, Inc., 1; 1670, v. 72 L.Ed.2d Marshall ineligible.” -U.S. parole is the defendant 1610, 1613, 243, 238, 64 L.Ed.2d 100 S.Ct. U.S. J., (Blackmun, joined at-, S.Ct. at 2189 182; Pennsylvania, 400 U.S. Mayberry v. JJ.); Souter, Stevens, Ginsburg, id. at cf. by -, and 532; 499, 505, In re 27 L.Ed.2d 91 S.Ct. J., (O’Connor, concurring S.Ct. at 2201 623, 625, 133, 136, Murchison, 75 S.Ct. U.S. C.J., Rehnquist, Ken by and joined judgment, States, 942; 348 U.S. United v. 99 L.Ed. Offutt J.). nedy, 11; 11, 13, v. J.E.B. 99 L.Ed. cf. 75 S.Ct. - — -, Alabama, n. Simmons, put defen prosecution the the In X, (Scalia, 128 L.Ed.2d 1438 n. asking by dangerousness at issue dant’s future C.J., by Rehnquist, Thom- dissenting, joined do with question to jury "what to answer long as, J.) ("Wise understood observers our midst” he is in [petitioner] now that as justice important is as appearance of that the jury verdict for death exhorting Hayes, Taylor reality.”); its society who is response to someone be “a (At is issue 41 L.Ed.2d 94 S.Ct. self-de will be act verdict threat. Your " 'hold balance to is able whether the at -, 2190-91. In Del S.Ct. at Id. fense.” nice, and the the State and true between clear case, put Vecchio’s prosecution Del Vecchio’s judgment, making this ultimate accused....' In telling jury by dangerousness at issue future there was whether be not inquiry must George people Del like "protect [itself] to Vecchio,” part.... ‘Such a respondent’s bias on actual stringent protected from be] [to to "demand by judges may bar trial sometimes rule prosecu George Vecchio.” people Del like do their who bias and would justice actual who have no Del jury did not sentence implied that tion equally weigh the very scales best death, day to might be some to then Vecchio parties,’ process due contending but must, up between you can’t leave paroled: 'You omitted.). requires Citations no less.” law experts.... Don't experts. trust You can't else, ... a somebody because put the decision fact, has nev jurisprudence Circuit expert Seventh bewill another years from now there few recently, Coffey very noted so. As along say er done he's willing come who be will satisfy the 'justice must system, judicial "In our undisputed fine.” It agen administrative justice’ appearance of eliminated pursuant statute sentenced cies, judges, must law administrative as ch. well possibility parole. Ill.Rev.Stat. all partiality.” circumstances, appearance of bias avoid even 1003~3-3(d). these § Under Motor v. Q-1 Board Relations sentencing National Labor require appears “that the Simmons 1994) (7th (Coffey, Inc., Cir. F.3d 473 Express, parole the defendant jury informed that Murchison, J., re dissenting) (quoting from In at -, Simmons, at -. ineligible.” 625). venera If this sentencing jury 349 U.S. at Vecchio is correct If Del applies principle to administra informed, rights ble constitutional due so then was not subject a determining agencies tive unnecessary explore Sim It is were violated. order, bargaining consider company by (which complicated multi is made mons apply to it must force more how much in that opinions Justices issued tude of capital cases. presiding judges case) Vecchio’s greater because Del detail Moreover, any distinction to be made be- ral preside desire to over the second Del proposed by majority tween the test the and Vecchio trial ability obscured his perceive “appearance justice” of language it grave what a conflict such a course of action primarily abhors is a semantic one. For the entailed, believe, I do not for a moment nor phrase “justice satisfy must the appearance suggest, do I Judge Garippo wish justice,” majority prefers of to substitute any way intended to treat Del Vecchio un- “judges must sometimes recuse themselves fairly. Indeed, I firmly Judge believe that possible temptations when face to be Garippo thought put he could personal his 1372, page biased.” at Maj.Op. ante. The feelings about the pro- defendant aside and majority then cautions that “even impartial ceed in an manner. Whether in Garippo ‘possible temptation’ faced some fact he correct or was whether he was unfor- ..., every ‘possible temptation’ biased tunately mistaken does not matter. We presents to be biased a possibility sufficient require must strict salutary adherence to the require disqualification.” of bias to Id. It requires rule that recusal circum- whenever explains “possible temptation that a to be possible stances offer “a temptation to the requires biased” experi- recusal when average judge man as a ... not to hold the ence teaches that “under a appraisal realistic nice, balance clear and true between the psychological of tendencies and human weak- state and the Tumey, accused.” 273 U.S. at nesses” temptation poses great too a risk 532, 444, quoted at approval with by of actual bias. at quoting Id. Withrow Aetna, at U.S. 106 S.Ct. at 1587. Larkin, 35, 47, v. U.S. clearly 712. But L.Ed.2d protects the cir- a rule Such from accused presented cumstances of the Canzoneri danger trial of judging. unfair It maintains for such a risk of actual bias that Judge Garippo society of appearance jus benefit of (under appraisal a psychological realistic of necessary tice so to the continued esteem of weaknesses) tendencies and human ought not judicial Moreover, system. protects it presided to have over it.7 judges such as Louis Garippo individu —fine als who “have no actual bias who would requires A rule that ap- recusal when the very do their best to pearance weigh the scales of of strong bias is as as it is in this justice equally case, between contending parties,” requiring without independent an show- Aetna, bias, ing of U.S. at many actual 106 S.Ct. at serves ends. Not quoting Murchison, approval the least of these is to avoid the sort of U.S. after- 625; at the-fact judge’s Taylor of S.Ct. at see dissection also motivations Hayes, courts, behavior that two state the dis- court, trict appellate unseemly a divided L.Ed.2d 897 — from panel, excursions Court, now psyches. this divided into majority en banc their regret- The have tably been practice Court forced has held that Garippo this case. did not Louis high improperly held in act was as a when he esteem neither recused him prosecutor (He and as a trial self judge. from Del Vecchio trial nor revealed private practice has been in to the since'1980. Gar- defense his role the Christiansen 31.) ippo Dep. reputation His is not un- case. nothing majority But says can many known to of us here on the Seventh remove the cloud of doubt now and Circuit. While I Garippo’s believe that natu- hangs forever over the Del trial concurrence, majority, 7. willing The unlike the preme precedent, is majority proceeds process to concede that "the due clause some- inordinately its own substitute narrow test for requires times to recuse judge, biased, himself without when a actually not shown to be showing Maj.Op. page actual bias.” must nonetheless recuse himself from a case. rejects my ante. It “appearance use of the disagreement Our "appearance jus- about the justice” language then, erroneously because it language, inter- tice” really is over whether it prets language my either that sug- suggests very dissent as judicial narrow test for recusal or gesting appearances that somehow "bad suggests alone” a somewhat broader one. I always by are themselves sufficient to dis- submit that the ap- Court’s continued qualify judge presiding particular proval over a "appearance” language indicates See, e.g., case. Rightly reject- id. at bar, in cases like the one at recusal ing unduly such interpretation required broad of Su- the due clause. majority its perspective flaw irremediably biased. that consider- of the effect underestimation go to will is that tragedy advantage can financial other than ations irony is trial. of this a result as death impartiality. The skewing judicial play injustice grave of such appearance that the at issue here conduct judge whose trial easily been avoided. could so colleagues who know was, my several of dissent. respectfully I sig- of public a servant suggested, him have in the Illi- reputation and influence nificant dissenting. CUDAHY, Judge, Circuit required to stand was also He nois bar. been Garippo to have Judge I know opinion quite Judge Cummings’ As election. now jurist. He is respected and honorable demonstrates, petitioner’s second the amply I practitioner. respected skillful still and of question the wisdom called into murder the dissent from I must regret that therefore judge had made trial that this the decisions reasons ex- for the opinion largely majority Indeed, the stage his career. of — in an earlier care great with length and -at plored him, per- indirectly reminded prosecutor governing Cummings. The standards Judge pleaded others, he decision when haps of that pen- in death impropriety of appearance the of the future jury not to leave the the with high. I am be cannot too alty proceedings It defies common “experts.” petitioner not do here appearances persuaded nature, well as recent knowledge of human as I therefore standards. up to those measure suggest that such history,1 American dissent. respectfully oftentimes personally, is not taken criticism figure in- public by the very personally, Judge, whom RIPPLE, Circuit most, figures many, if not For volved. ROVNER, CUDAHY, CUMMINGS, profes- one’s life, avoiding a cloud over public dissenting. join, Judges, Circuit great a consideration judgment sional gain. important than financial more deal argu- the three of I believe Because court to this petitioner by the made ments from the merit, respectfully dissent I B. in this deny case. all relief

court’s decision on the rested focus has this court’s While government’s the here I not discuss shall trial the state of impartiality the issue of analysis of the agree with I cross-appeal; the quickly over pass too ought not judge, we panel opinion. in the Cummings remark prosecutor’s impact of the writing separate limit 509. I shall F.3d petitioner’s future not leave jury should are I believe other areas that two petitioner “experts.” The hands of the in the meritorious. post- and on contended, appeal direct both on erred, prosecutor review, conviction A. law, when he and state federal as matter might jury petitioner that the argued to dissenting Cummings’ thoughtful As sen were on he parole be released demonstrates, and, respectfully I opinion The seriousness to death. by the tenced upon the caselaw relied suggest, as v. South after Simmons is clear demonstrates, federal claim participation majority also — U.S. -, Carolina, petitioner’s judge in the trial of the state addition, (1994). it seems In L.Ed.2d sub- for murder prosecution earlier has Supreme Court Illinois that the of obvious direct, conflict stantial, undisclosed treatment in its from even-handed far been between difference The basic interest. prior in Illinois The caselaw problem. of the viewpoints is whether minority majority and that, clear petitioner made trial sufficiently to the judge was trial of the the interest possibility case, argument on capital in a judge not require substantial matter state as a improper parole is view, fundamental my participate. and Willie presidential election ing Toner, the 1988 Furloughs See, e.g., Prison Robin Horton). Record Dukakis Threaten Massachusetts (discuss- 5, 1988, Times, July at B6 Crime, N.Y. Garcia, People law. 97 Ill.2d 73 Ill. court in making Gacho the comment of the 414, 426, (1983), Dec. 454 N.E.2d prosecutor particularly inappropriate. Ga denied, 1260, 104 cho, cert. 119 Ill.Dec. at 522 N.E.2d at 1163. (1984). appeal L.Ed.2d Before the of the government argues in its brief that petitioner, the Illinois Court had prosecutor remark of the was an invited argument determined two cases that such response, apparently petitioner’s to the re Walker, was reversible error. See People v. mark part of him believed that would 531, 536, 91 Ill.2d 64 Ill.Dec. 440 N.E.2d get prison able to out of before he was (1982); Szabo, People v. 94 Ill.2d suggestion by old. This the State is specula 68 Ill.Dec. 447 N.E.2d tion. Whether the remark reply is an invited (1983). contrast, By petitioner’s direct law, is a matter appeal, the Illinois denied relief be Court of the state has chosen justify not to cause there was “no evidence possi that the its holding by any reference to possibili bility parole of awas factor considered the ty. by any Nor is it “given” means that the jury’s deliberations,” because, and Illinois court would have characterized the view, prosecutor court’s the simply de prosecutor’s comments in such terms. See scribing accurately sentencing choices of Brisbon, 98-99, 88 Ill.Dec. at 478 N.E.2d Vecchio, People the court. See v. Del 105 that, (stating 413-14 despite the State’s alle 414, 86 Ill.Dec. Ill.2d 475 N.E.2d gations parole that discussion of was invited 840, denied, 883, 851 cert. 474 U.S. 106 S.Ct. by by comments made defendant’s witnesses 204, (1985). 88 L.Ed.2d 173 People In v. by testimony, defendant’s the court Brisbon, 342, 87, 106 Ill.2d 88 Ill.Dec. 478 prosecutor’s found the discussion to be denied, 908, 402 N.E.2d cert. 474 U.S. 106 over-reaction”). “highly prejudicial 276, More (1985), 88 L.Ed.2d 241 the court over, Illinois’ treatment of the invited re approach returned to the Again Walker. sponse inexplicably defense is 1988, murky. Al the court followed Walker when it though principle Gacho, has acknowledged been People 221, v. 122 decided Ill.2d 119 cases, Mack, some 287, People see denied, Ill.Dec. 522 Ill.2d N.E.2d 1146 105 cert. 103, 281, 293-94, 85 910, 264, 880, Ill.Dec. 488 473 U.S. 109 S.Ct. N.E.2d 102 L.Ed.2d 252 (1988). (1984), Yet, granted 892-93 cert. petitioner’s judgment when the case came vacated, 1074, again 1266, before the court appeal 107 S.Ct. from 94 (1987); Garcia, post-conviction relief, of L.Ed.2d 127 denial the court Ill.Dec. at 426, again denied relief. The N.E.2d at merely court court has not noted always it, upon Szabo, that “[d]ifferent results were relied see achieved Ill.Dec. at 953-54, People Vecchio, ‍​‌​‌​‌‌‌‌​‌‌‌​‌​​​‌​‌‌​​‌‌‌‌‌​‌​‌​‌‌‌​‌​​‌‌​​​​​‍different facts.” N.E.2d at 211-12. v. Del Under these circumstances, 129 Ill.2d we 135 Ill.Dec. cannot attribute to the (1989), denied, that, N.E.2d Court of cert. Illinois rationale for (1990). bench, reason known to that 108 L.Ed.2d deter ought mined not be justify used to ruling its Among people condemned to death in Illi- in this case. nois, only Del Vecchio required has been jury show that upon prosecu- relied

tor’s parole. remarks about In all other C. cases, the court has acknowledged that such prejudicial. remarks are disparate This As principal notes, dissent there is a treatment especially seems light stark cloud of surrounding doubt this case—a cloud prosecutor’s fact that the statement was that can be attributed to the lingering fear in a made case which possi- there nowas that one of the basic hallmarks of American bility parole. See justice ch. Ill.Rev.Stat. lacking in —evenhandedness—was 1003-3-3(d). § This factor was noted this case.2 The crime was a terrible one and It petitioner should be noted that the has response raised prior petition States in its to a preserved without argument extended anoth- petitioner certiorari. The has advised "cloud,” allegation er that the State was less appropriate he considers the matter for in- than frank with the Court of the United brutality the stark has stressed majority terms. uncertain in no murder however, must task, we our performing ease become of this facts

let the overwhelming immediate accident some feelings and to the appeals which

interest immediate These judgment. distorts pres- hydraulic a kind exercise

interests previously was what makes

sure doubtful, even before which

clear seem will bend. principles law settled

well States, 193 U.S. v. United Sec. Co.

Northern L.Ed. 679 400-01, J., dissenting opinion).

(1904) (Holmes, FITTSHUR, Plaintiff- T.

Robert

Appellant, FALLS, OF MENOMONEE

VILLAGE Company, a mutual

Sentry Insurance Com- Insurance

company and Scottsdale Defendants-Appellees.

pany, 93-2896.

No. Appeals, States

United Circuit.

Seventh

Argued Feb. 1994. Aug.

Decided court. judgment of this to review petition for certiorari in a elusion notes the death context, alty Gacy. then, had checked out the Christiansen case files Judge than In trial started. The im- before Canzonieri Garippo’s Gacy provides statement about no plication Judge Garippo took an un- is any predisposition evidence of Gar- case, interest in Del Vecchio’s and that usual ippo’s part. points this unusual interest to bias. But this sum, In presents the record no facts indi- saying appellate judge like that an who bias, cating possible either actual or a temp- argument cheeks out record before oral might tation presume so severe that we taking an unusual interest in that case. In actual, substantial incentive to be biased. fact, very good has a reason to Therefore, prevail Del Vecchio cannot on his examine the record —that reason is called claim that he was denied due because preparation. preparation Trial does not Judge Garippo presided at his trial. event, beginning start at the of trial. this “evidence” not so much bias shows III. inquisitiveness; being inquisitive about an earlier case is not sufficient reason for us The next constitutional issue Del Vecchio presume part even infer —bias on the —or gave raises concerns the confessions average judge (especially of the when such 1965. He claims that the confessions were investigation is warranted demands coerced, oppor- and he demands at least the preparation). trial tunity challenge the voluntariness of the Finally, Garippo’s Vecchio notes evidentiary hearing. confessions in an statement that “Del Vecchio was more de- granted district court the writ of habeas serving penalty of the death than John issue, corpus remanding on this the cause to Wayne Gacy.” Apparently, Judge Garippo state court to conduct such hearing. made this off-the-record comment to Del district court determined that Del Vecchio attorney comparing Veechio’s three death hearing was entitled to a under the him, penalty including cases before Del Vec- Denno, Court’s decision in Jackson Gacy’s. argues chio’s and 12 L.Ed.2d 908

Case Details

Case Name: George Del Vecchio, Cross-Appellee v. Illinois Department of Corrections

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Jul 19, 1994

Citation: 31 F.3d 1363

Docket Number: 92-2553, 92-2622

Court Abbreviation: 7th Cir.