The opinion of the court was delivered by: Perry, District Judge.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
This matter coming on to be heard on intervenor's motion for a
Rule 60(b) hearing, petitioner's answer thereto, and intervenor's
reply to said answer, the parties having filed their briefs and
the court being fully informed in the premises, the Court hereby
enters the following findings of fact supplementing the findings
of fact entered March 20, 1967.
1. On December 24, 1963, this Court entered judgment granting
petitioner's habeas corpus petition and ordering the discharge of
the petitioner from custody unless he was tried within four
months. He was not retried within four months. The respondent
filed notice of appeal from this Court's order on January 17,
1964. On April 10, 1964, the State moved to stay the order of
this Court and stay was granted by the Seventh Circuit Court of
Appeals on April 22, 1964. On February 15, 1965 the Court of
Appeals reversed this Court, but on February 13, 1967, the
Supreme Court reversed the Court of Appeals and affirmed this
Court. The mandate of the Supreme Court was issued on March 10,
2. On remand to this Court on March 20, 1967, the Court freed
petitioner and barred his retrial. At this hearing the Attorney
General of Illinois, by his duly authorized representative,
indicated his intent to abide by the order of this Court and not
to appeal therefrom. He did not appeal therefrom.
4. On January 29, 1968 the United States Court of Appeals for
the Seventh Circuit directed this court to permit intervenor to
intervene for the purpose of challenging the authority of the
District Court to enjoin the People of the State of Illinois from
further prosecution of petitioner.
5. On November 14 and December 12, 1968 this court entered
orders in conformity with the order of the Court of Appeals.
Thereafter intervenor filed a motion for hearing under Rule 60(b)
of the Federal Rules of Civil Procedure. Said motion asked the
Court to vacate the portion of its order of March 20, 1967
barring further prosecution of petitioner. It did not designate
any specific one of the six grounds set out in Rule 60(b) as the
ground for the motion.
6. Petitioner filed an answer and a brief. Intervenor filed a
7. The Honorable William Malmgren was defeated for re-election
as State's Attorney of Fulton County in the November, 1968
general election. His successor, the Honorable Robert A. Downs,
was duly sworn into office on or about December 2, 1968. Such
successor has had no connection with the case at bar and is not
disqualified from acting.
8. In consequence of a 1956 conviction set aside by this court
in 1963, petitioner was incarcerated for over eleven years
(1955-1967). He was under death sentence for over ten years.
Seven execution dates were fixed, and ten stays granted. On two
occasions petitioner became mentally ill and was transferred to a
psychiatric unit. In 1967, when the Supreme Court reversed his
conviction, it held that the prosecution had deliberately
misrepresented the truth regarding certain evidence.
These conclusions of law supplement the conclusions of law
entered March 20, 1967:
1. Because of change in circumstances since the January 29,
1968 Court of Appeals order, grounds no longer exist under
Ill.Rev.Stat. (1967) c. 14, § 6, for the ...