and Rogers did not violate Del Vecchio's right to confront witnesses.
VIII. GROUND XII: BURDEN OF PROOF UNDER DEATH PENALTY STATUTE
Del Vecchio's final claim presented to this court attacks the constitutionality of the Illinois death penalty statute. He contends that the binary decision made by a capital jury in the sentencing stage -- "death" or "no death" -- imposes no mandate on the prosecution "to prove, even by a preponderance of the evidence, that death was the appropriate punishment or that aggravation outweighed mitigation." (Del Vecchio's Mem. in Opp., p. 80.) Instead, Del Vecchio argues that due process requires "at a minimum [that] the [death penalty statute] must clearly impose upon the prosecution the burden of proving by a preponderance that aggravation outweighs mitigation and that death is the appropriate punishment." (Id. at 81.)
In Silagy v. Peters, 905 F.2d 986 (1990), the Seventh Circuit directly addressed the burden of proof under the Illinois death penalty statute. Id. at 997-99. The court premised its ruling on the reasoning of the Illinois Supreme Court that under the Illinois death penalty statute,
the prosecution bears the initial burden of persuasion in the balancing stage of the sentencing proceeding. . . . [to] persuade the jury that, as the statute states, there are no mitigating factors sufficient to preclude the sentencer from imposing the sentence of death for which the defendant is eligible. . . . Where a defendant attempts to persuade the jury that the death penalty is inappropriate in his case, "a burden of persuasion is placed on the defendant by the sentencing statute. . . ." . . . The imposition of such a burden of persuasion on a defendant "is constitutional because at this point in the hearing the prosecution has already proven beyond a reasonable doubt that a statutory aggravating factor exists making the defendant eligible for the death penalty . . . and the jury is now weighing aggravating and mitigating factors presented by both the State and defendant." . . . We reject Petitioner's argument that [the statute] violates the eighth or fourteenth amendments.
Id. at 998-99 (quoting People v. Bean, 137 Ill. 2d 65, 560 N.E.2d 258, 147 Ill. Dec. 891 (1990). Thus, the burden of proof allocation under the Illinois death penalty statute is not unconstitutional.
For the reasons stated above, petitioner George Del Vecchio's petition for writ of habeas corpus is GRANTED with respect to Ground II, the trial judge's failure to conduct a hearing on the voluntariness of Del Vecchio's 1965 confessions. The State of Illinois is to request the Circuit Court of Cook County to conduct an evidentiary hearing within 120 days of the date of this order on Del Vecchio's motion to suppress the 1965 confessions on voluntariness grounds (Ground II). In the event that Del Vecchio's motion to suppress is granted, the Circuit Court of Cook County may then address the issue of the admissibility of the codefendants' statements discussed in Ground IX of Del Vecchio's petition. With respect to all other grounds considered herein, Del Vecchio's petition is DENIED.
JAMES F. HOLDERMAN
United States District Judge
DATED: June 9, 1992