Delvecchio v. Illinois./Dissent Marshall

Justice MARSHALL, with whom Justice BRENNAN joins, dissenting.

Adhering to my view that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U.S. 153, 231, 96 S.Ct. 2909, 2973, 49 L.Ed.2d 859 (1976) (MARSHALL, J., dissenting), I would grant the petition for certiorari and vacate the death sentence in this case. Even if I did not hold this view, I would grant the petition to consider whether the trial judge's failure to recuse himself violated petitioner's due process right to be tried and sentenced by an impartial judge. For the reasons set forth in Justice Clark's dissent in this case, 129 Ill.2d 265, 297-302, 135 Ill.Dec. 816, 831-834, 544 N.E.2d 312, 327-330 (1989), I believe that the trial judge's participation in this case, given his involvement in the prosecution of a 1965 murder charge against the defendant, presented an unacceptable appearance of partiality. The Court has previously considered only charges that the adjudicator has a "direct, personal, substantial, pecuniary interest" in the case before him, Tumey v. Ohio, 273 U.S. 510, 523, 47 S.Ct. 437, 441, 71 L.Ed. 749 (1927), or allegations that the judge was influenced by generalized hostility towards certain kinds of private businesses, Aetna Life Insurance Co. v. Lavoie, 475 U.S. 813, 820, 106 S.Ct. 1580, 1584, 89 L.Ed.2d 823 (1986). Because I believe we should now consider petitioner's very different contentions of improper bias on the part of the trial judge, I dissent.