Opinion No. 95-21

October 12, 1995

TOPIC: Judge attending an execution.

DIGEST: A judge should not attend the execution of a person convicted of a capital offense where the judge had served as a prosecutor in the case.

REFERENCES: Illinois Supreme Court Rule 62A of the Code of Judicial Conduct, Canon 2 (145 Ill.2d R. 62); Illinois Judicial Ethics Committee Opinion No. 94-17.

FACTS

Approximately four years ago when the judge was an assistant state's attorney, the judge was the prosecutor in a case in which the death penalty was imposed. After lengthy appeals, the date has been set for the defendant's execution. At present, the judge is assigned to a civil call, but foresees assignment to a criminal call in due time and the judge feels that it would be an educational experience to attend as a witness to the execution. So far as is known, there is no indication that there will be any excessive news coverage or demonstrations, but some of the judge's colleagues have indicated a negative reaction to this activity.

QUESTION

Should the judge attend the execution as a witness?

OPINION

No. The judge would be ill-advised to attend the execution. Because the judge served as a prosecutor in the case, the judge's attendance at the execution may erode public confidence in the integrity and impartiality of the judiciary. The judge's presence at the execution would suggest that the judge continues a self-identification as a prosecutor. Although Illinois Judicial Ethics Committee Opinion No. 94-17 would permit judges to give a speech on death penalty issues, they may do so only if "they do not say anything that casts doubt on their capacity to decide impartially any cases that involve those issues." Here, the judge's presence at the execution in a case where the judge had served as prosecutor, would cast doubt on the judge's capacity to decide subsequent death penalty cases impartially.