Del Vecchio v. Illinois Dept. of Corrections

Decision Date19 July 1994
Docket NumberNos. 92-2553,92-2622,s. 92-2553
Citation31 F.3d 1363
PartiesGeorge DEL VECCHIO, Petitioner-Appellant, Cross-Appellee, v. ILLINOIS DEPARTMENT OF CORRECTIONS, Respondent-Appellee, Cross-Appellant.
CourtU.S. Court of Appeals — Seventh Circuit

Matthew F. Kennelly (argued), Margaret L. Paris, Cotsirilos, Stephenson, Tighe & Streicker, Chicago, IL, for George Del Vecchio.

Arleen C. Anderson, Asst. Atty. Gen. (argued), Terence M. Madsen, Asst. Atty. Gen., Office of the Atty. Gen., Criminal Appeals Div., Sara Dillery Hynes, Renne G. Goldfarb, Cook County State's Atty., Civil Div., Chicago, IL, for Illinois Department of Corrections.

Before POSNER, Chief Judge, and CUMMINGS, BAUER, CUDAHY, COFFEY, EASTERBROOK, RIPPLE, MANION, KANNE, and ROVNER, Circuit Judges. *

MANION, Circuit Judge, joined by POSNER, BAUER, COFFEY, EASTERBROOK, and KANNE.

An Illinois state court sentenced George Del Vecchio to death after convicting him of murdering a six-year-old boy. He filed a petition for writ of habeas corpus in the district court, claiming that the proceedings leading to his death sentence were constitutionally deficient. The district court denied all of Del Vecchio's constitutional claims except one: the district court determined that Del Vecchio was entitled to an evidentiary hearing to test the voluntariness of a confession he had given for an earlier murder. Both Del Vecchio and Illinois appeal the district court's decision. We affirm the portion of the district court's decision denying the petition, but reverse the district court's remand for an evidentiary hearing.

I. Background

This appeal involves George Del Vecchio's 1979 murder conviction and death sentence. But this was his second murder. The first occurred in early February of 1965, while Del Vecchio and two young companions were on a two-day crime spree. On the second day, they happened upon Fred Christiansen, an elderly man, whom they decided to murder and rob. Del Vecchio shot Mr. Christiansen nine times, as his accomplices kicked the dying man to silence his cries for help. They recovered $11 from Mr. Christiansen's wallet. The police arrested Del Vecchio, and he admitted to the murder.

The crime received enormous publicity in the Chicago area. Del Vecchio claimed that he was looking for drug money when he killed Mr. Christiansen. In 1965 it was still front-page news when young men committed random acts of violence to gain drug money. The Cook County State's Attorney handled the prosecution. Louis Garippo was the chief of the criminal division in that office. He assigned the case to his former trial partner, and generally supervised the prosecution. Del Vecchio provided the prosecutors with a written confession. According to Del Vecchio, he was not advised of his right to counsel in the manner prescribed in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), which was decided the following year.

Del Vecchio was sixteen years old when he murdered Mr. Christiansen in early February of 1965. He was to turn seventeen on March 1, 1965. His lawyer considered it important that Del Vecchio be convicted and sentenced before his seventeenth birthday. That way, Del Vecchio would be sent to a youth correctional facility until his twenty-first birthday. Only then would he be given an adult sentence and sent to an adult prison. Ill.Rev.Stat. Ch. 1963, 23 Sec. 2523. By contrast, a person sentenced after his seventeenth birthday would immediately receive an adult sentence and be sent to an adult prison. Del Vecchio's attorney met with Louis Garippo and told him that Del Vecchio would plead guilty and agree to immediate sentencing if the case could be wrapped up before March 1. Garippo agreed to expedite the indictment, welcoming such a quick resolution of the high-profile case.

Del Vecchio was charged as an adult; he pleaded guilty and was sentenced before his seventeenth birthday. Because he was sentenced before turning seventeen, he was given over to the Illinois Youth Commission which placed him in a youth correctional facility. After he reached age twenty-one, Del Vecchio was sent back to court to receive an adult sentence. The presiding judge had broad discretion when sentencing the admitted murderer. He could have sentenced Del Vecchio to a minimum of fourteen years or a maximum of life in prison. The parties do not dispute that this is exactly the range of discretion a judge in 1965 would have had if Del Vecchio had been sentenced after his seventeenth birthday. During his stay at the youth facility, Del Vecchio had achieved a sterling record and the judge apparently took that into consideration. He sentenced Del Vecchio to the statutory minimum of fourteen years in an adult prison. He was credited with time served and since he continued to be a model inmate, he was paroled in April of 1973, only a few years after he had been sentenced.

Unfortunately, Del Vecchio's good behavior ended at the prison exit. In 1977, he struck again. This time his victim was six-year-old Tony Canzonieri. Early one morning, Del Vecchio broke into the apartment of Karen Canzonieri, Tony's mother, apparently intending to rape her. Del Vecchio knew Karen. In fact, he had made a visit to the apartment the night before, where he and others had smoked marijuana. When he broke into the apartment the next morning, he came across young Tony on the first floor. Apparently Del Vecchio did not want Tony in the way when he was with Karen, so he killed him. He brutally slashed the boy's throat, severing his trachea, carotid artery, jugular vein and vegus nerve, and fracturing his third and fourth vertebrae--a near decapitation. Del Vecchio then stuffed Tony's body in a crawlspace and made his way upstairs to Karen's bedroom, where he raped her. Karen was able to escape and call the police when Del Vecchio left her alone for a moment. When the police arrived they found Del Vecchio hiding on the roof. His first words on being captured were, "I didn't kill nobody."

In 1979, the time of the Canzonieri murder trial, Louis Garippo had left his job with the State's Attorney and had become a judge with the Cook County Criminal Division. He was randomly selected to preside over Del Vecchio's trial for the murder of Tony Canzonieri. He neither recused himself from the case, nor informed Del Vecchio's attorneys about his involvement in the 1965 prosecution. Before the trial, Del Vecchio's attorneys made motions in limine to exclude evidence pertaining to the 1965 conviction and confession. They asserted three reasons to preclude the evidence: that the facts relating to the 1965 confession and conviction were irrelevant to the 1977 murder; that the 1965 confession had been involuntary and taken in violation of Miranda; and that the law in 1965 which allowed juveniles to be charged as adults was unconstitutional. Judge Garippo withheld ruling on these matters, but let the defense know that he would likely allow evidence about the 1965 case if the defense introduced evidence that Del Vecchio was insane at the time of the murder. Although the defense laid the groundwork to argue Del Vecchio's insanity, they never presented the defense. So the state never attempted to introduce the evidence about the 1965 murder. Therefore, Judge Garippo never officially ruled during the guilt phase of the trial on the motions to preclude the evidence.

The evidence presented against Del Vecchio at the trial was overwhelming. Having abandoned the insanity defense, he really had no persuasive theory of defense. The jury convicted Del Vecchio for Tony's murder. The case then proceeded to the sentencing phase, which involved testimony and other evidence about whether Del Vecchio should be put to death. The state sought to introduce evidence concerning the 1965 murder. Again, Del Vecchio's attorneys challenged the evidence. Judge Garippo, believing that it was important for the jurors to consider Del Vecchio's violent history when they made their sentencing decision, ruled that the evidence was admissible. Pursuant to that ruling, the government introduced Del Vecchio's 1965 written confession, in which he discussed Mr. Christiansen's killing and related events in great detail. Del Vecchio had sought to preclude the 1965 confession on the basis that it was involuntary. Judge Garippo did not grant Del Vecchio an evidentiary hearing to address the voluntariness of the confession; he simply allowed the confession into evidence, leaving Del Vecchio the opportunity to claim to the jury that the confession was not voluntary. The government also presented evidence that Del Vecchio falsely claimed in 1965 that he killed because of drug use, and argued that Del Vecchio's tendency to blame his crimes on drugs was part of a recurring pattern. After hearing this and all of the other evidence, the jury found that there were sufficient aggravating circumstances to warrant the death penalty, and no mitigating circumstances to prevent it. See Ill.Rev.Stat.1975, ch. 38, par. 9-1(b). The court imposed the sentence of death.

That was fifteen years ago. Since then, Del Vecchio has been housed in Illinois prisons awaiting execution. His death penalty was stayed for a time as the Illinois Supreme Court considered his appeal; that court affirmed both Del Vecchio's conviction and death sentence. People v. Del Vecchio, 105 Ill.2d 414, 86 Ill.Dec. 461, 475 N.E.2d 840 (1985). The United States Supreme Court denied certiorari. 474 U.S. 883, 106 S.Ct. 204, 88 L.Ed.2d 173 (1985). Justices Marshall and Brennan dissented from that order. They took the position that Del Vecchio was entitled to an evidentiary hearing in the sentencing phase of the 1979 trial, to challenge the voluntariness of the 1965 confession. Id. In 1986, Del Vecchio discovered that Judge Garippo had been involved in his 1965 prosecution. Based on that and other legal theories, ...

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