because the Honorable William Malmgren, then State's Attorney of
Fulton County, was disqualified from appearing because he had
been counsel for petitioner. Special Attorney Hayes appeared at
the March 20, 1967 hearing. He appealed from the order of March
20, 1967, insofar as it denied leave to intervene and insofar as
it barred petitioner's retrial.
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.
Conclusions of Law
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 appointment of Roger W.
Hayes as special counsel.
2. It would violate petitioner's rights to due process of law
under the Fourteenth Amendment, and to a speedy trial under the
Sixth Amendment, to compel him to stand trial again.
3. The time within which petitioner might have been retried
under the order of December 24, 1963 has expired.
4. The controlling statute is 28 U.S.C. § 2243, which directs
the Court to dispose of habeas corpus matters as "law and justice
require". Under this statute this court had power, and properly
exercised it, to bar petitioner's retrial.
5. Intervenor's motion for a Rule 60(b) hearing advances no
sustainable ground for such hearing and no such hearing is
This matter coming on to be heard on intervenor's motion for a
Rule 60(b) hearing, petitioner's answer thereto, and the reply of
intervenor to said answer, and on intervenor's motion to compel
admissions, petitioner's objection and intervenor's response, and
the court being fully informed in the premises,
It is hereby ordered that:
1. The motion for a Rule 60(b) hearing is denied.
2. The motion to compel admissions is denied.
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