dissenting.
I know Judge Garippo to have been an honorable and respected jurist. He is now a skillful and still respected practitioner. I therefore regret that I must dissent from the majority opinion — largely for the reasons explored -at length and with great care by Judge Cummings. The standards governing the appearance of impropriety in death penalty proceedings cannot be too high. I am persuaded that appearances here do not measure up to those standards. I therefore respectfully dissent.
RIPPLE, Circuit Judge, with whom CUMMINGS, CUDAHY, and ROVNER, Circuit Judges, join, dissenting.
Because I believe that three of the arguments made by the petitioner to this court have merit, I respectfully dissent from the court’s decision to deny all relief in this case. I shall not discuss here the government’s cross-appeal; I agree with the analysis of Judge Cummings in the panel opinion. 8 F.3d 509. I shall limit this separate writing to the two other areas that I believe are meritorious.
A.
As Judge Cummings’ thoughtful dissenting opinion demonstrates, and, I respectfully suggest, as the caselaw relied upon by the majority also demonstrates, the participation of the state trial judge in the petitioner’s earlier prosecution for murder was a substantial, direct, and undisclosed conflict of interest. The basic difference between the majority and minority viewpoints is whether the interest of the trial judge was sufficiently substantial to require that the judge not participate. In my view, the fundamental flaw in the perspective of the majority is its underestimation of the effect that considerations other than financial advantage can play in skewing judicial impartiality. The trial judge whose conduct was at issue here was, as several of my colleagues who know him have suggested, a public servant of significant reputation and influence in the Illinois bar. He was also required to stand for election. As Judge Cummings’ opinion quite amply demonstrates, the petitioner’s second murder called into question the wisdom of the decisions that this trial judge had made in an earlier stage of his career. Indeed, the prosecutor indirectly reminded him, and perhaps others, of that decision when he pleaded with the jury not to leave the future of the petitioner to “experts.” It defies common knowledge of human nature, as well as recent American history,1 to suggest that such a criticism is not taken personally, oftentimes very personally, by the public figure involved. For many, if not most, figures in public life, avoiding a cloud over one’s professional judgment is a consideration a great deal more important than financial gain.
B.
While this court’s focus has rested on the issue of the impartiality of the state trial judge, we ought not pass too quickly over the impact of the prosecutor’s remark that the jury should not leave the petitioner’s future in the hands of the “experts.” The petitioner contended, both on direct appeal and on post-conviction review, that the prosecutor erred, as a matter of federal and state law, when he argued to the jury that the petitioner might be released on parole if he were not sentenced to death. The seriousness of the federal claim is clear after Simmons v. South Carolina, — U.S. -, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994). In addition, it seems obvious that the Illinois Supreme Court has been far from even-handed in its treatment of the problem. The caselaw in Illinois prior to the trial of the petitioner made clear that, in a capital case, argument on the possibility of parole is improper as a matter of state *1400law. People v. Garcia, 97 Ill.2d 58, 73 Ill.Dec. 414, 426, 454 N.E.2d 274, 286 (1983), cert. denied, 467 U.S. 1260, 104 S.Ct. 3555, 82 L.Ed.2d 856 (1984). Before the appeal of the petitioner, the Illinois Supreme Court had determined in two cases that such argument was reversible error. See People v. Walker, 91 Ill.2d 502, 64 Ill.Dec. 531, 536, 440 N.E.2d 83, 88 (1982); People v. Szabo, 94 Ill.2d 327, 68 Ill.Dec. 935, 954, 447 N.E.2d 193, 212 (1983). By contrast, in the petitioner’s direct appeal, the Illinois court denied relief because there was “no evidence that the possibility of parole was a factor considered in the jury’s deliberations,” and because, in the court’s view, the prosecutor was simply describing accurately the sentencing choices of the court. See People v. Del Vecchio, 105 Ill.2d 414, 86 Ill.Dec. 461, 472, 475 N.E.2d 840, 851 cert. denied, 474 U.S. 883, 106 S.Ct. 204, 88 L.Ed.2d 173 (1985). In People v. Brisbon, 106 Ill.2d 342, 88 Ill.Dec. 87, 478 N.E.2d 402 cert. denied, 474 U.S. 908, 106 S.Ct. 276, 88 L.Ed.2d 241 (1985), the court returned to the approach in Walker. Again in 1988, the court followed Walker when it decided People v. Gacho, 122 Ill.2d 221, 119 Ill.Dec. 287, 522 N.E.2d 1146 cert. denied, 488 U.S. 910, 109 S.Ct. 264, 102 L.Ed.2d 252 (1988). Yet, when the petitioner’s case came before the court again on appeal from the denial of post-conviction relief, the court again denied relief. The court merely noted that “[d]ifferent results were achieved from the different facts.” People v. Del Vecchio, 129 Ill.2d 265, 135 Ill.Dec. 816, 826, 544 N.E.2d 312, 322 (1989), cert. denied, 494 U.S. 1062, 110 S.Ct. 1540, 108 L.Ed.2d 779 (1990).
Among people condemned to death in Illinois, only Del Vecchio has been required to show that the jury relied upon the prosecutor’s remarks about parole. In all other cases, the court has acknowledged that such remarks are prejudicial. This disparate treatment seems especially stark in light of the fact that the prosecutor’s statement was made in a case in which there was no possibility of parole. See Ill.Rev.Stat. ch. 38, § 1003-3-3(d). This factor was noted by the court in Gacho as making the comment of the prosecutor particularly inappropriate. Gacho, 119 Ill.Dec. at 1180, 522 N.E.2d at 1163.
The government argues in its brief that the remark of the prosecutor was an invited response, apparently to the petitioner’s remark that part of him believed that he would be able to get out of prison before he was old. This suggestion by the State is speculation. Whether the remark is an invited reply is a matter of state law, and the Supreme Court of the state has chosen not to justify its holding by any reference to that possibility. Nor is it by any means “given” that the Illinois court would have characterized the prosecutor’s comments in such terms. See Brisbon, 88 Ill.Dec. at 98-99, 478 N.E.2d at 413-14 (stating that, despite the State’s allegations that discussion of parole was invited by comments made by defendant’s witnesses and by defendant’s testimony, the court found the prosecutor’s discussion to be a “highly prejudicial over-reaction”). Moreover, Illinois’ treatment of the invited response defense is inexplicably murky. Although the principle has been acknowledged in some cases, see People v. Mack, 105 Ill.2d 103, 85 Ill.Dec. 281, 293-94, 473 N.E.2d 880, 892-93 (1984), cert. granted and judgment vacated, 479 U.S. 1074, 107 S.Ct. 1266, 94 L.Ed.2d 127 (1987); Garcia, 73 Ill.Dec. at 426, 454 N.E.2d at 286, the court has not always relied upon it, see Szabo, 68 Ill.Dec. at 953-54, 447 N.E.2d at 211-12. Under these circumstances, we cannot attribute to the Supreme Court of Illinois a rationale that, for reason known only to that bench, it determined ought not be used to justify its ruling in this case.
C.
As the principal dissent notes, there is a cloud of doubt surrounding this case — a cloud that can be attributed to the lingering fear that one of the basic hallmarks of American justice — evenhandedness—was lacking in this case.2 The crime was a terrible one and *1401the majority has stressed the stark brutality of the murder in no uncertain terms. In performing our task, however, we must not let the facts of this ease become
some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment. These immediate interests exercise a kind of hydraulic pressure which makes what previously was clear seem doubtful, and before which even well settled principles of law will bend.
Northern Sec. Co. v. United States, 193 U.S. 197, 400-01, 24 S.Ct. 436, 467, 48 L.Ed. 679 (1904) (Holmes, J., dissenting opinion).
. See, e.g., Robin Toner, Prison Furloughs in Massachusetts Threaten Dukakis Record on Crime, N.Y. Times, July 5, 1988, at B6 (discussing the 1988 presidential election and Willie Horton).
. It should be noted that the petitioner has raised and preserved without extended argument another "cloud,” the allegation that the State was less than frank with the Supreme Court of the United States in its response to a prior petition for certiorari. The petitioner has advised this court that he considers the matter appropriate for in-*1401elusion in a petition for certiorari to review the judgment of this court.