TERENCE T. EVANS, Circuit Judge.
A case combining two men scheduled to die at the hands of the State with the corrupt judge who sentenced them creates a toxic mix. And so it is with this case, which we resolve today while sitting en banc.
Thomas J. Maloney betrayed the posi-' tion of high public trust he held as an elected circuit judge in Cook County, Illinois. The perversion of his oath forced Maloney to exchange his judge’s robe for [408]*408the garb of a prisoner at a federal correctional institution. Although Maloney can no longer disgrace the office he once held, this case demonstrates that the ashes of his corruption still smolder. We certainly hope that few, if any, embers will remain after today.
There are two parts to today’s decision, and each commands a solid majority of the court. The lineup of judges, however, is different on each part. To help the reader, we note that the part of the judgment which rejects the claim that our two petitioners are entitled to a full new trial is joined by Chief Judge Flaum and Circuit Judges Posner, Coffey, Easterbrook, Man-ion, Kanne, ahd Evans. The part of the judgment holding that the defendants are entitled to receive a new hearing on whether the death penalty should be imposed — this time before an honest judge— is agreed to by Chief Judge Flaum and Circuit Judges Coffey, Ripple, Kanne, Rovner, Diane P. Wood, Evans, and Williams.
This case has a 20-year history, the first 13 in the Illinois state courts. We will not relate that extensive history here. What follows is only a brief summary.
William Bracy1 and Roger Collins were convicted, after a jury trial, on multiple charges of murder, armed robbery, and aggravated kidnaping. Following a further, two-stage hearing before the same jury, both men were sentenced to death for their murder convictions, and to concurrent 60-year prison sentences on their other convictions. Bracy and Collins appealed, and the Illinois Supreme Court affirmed their convictions and sentences. People v. Collins, 106 Ill.2d 237, 87 Ill.Dec. 910, 478 N.E.2d 267 (1985). They then sought, and were denied, postconviction relief in the circuit court of Cook County, Illinois. The Illinois Supreme Court again affirmed, People v. Collins, 153 Ill.2d 130, 180 Ill.Dec. 60, 606 N.E.2d 1137 (1992).
Bracy and Collins then moved to federal court by filing separate habeas corpus petitions in the United States District Court for the Northern District of Illinois. Their petitions were consolidated, and in a 1994 decision the district court denied relief. United States ex rel. Collins v. Welborn, 868 F.Supp. 950 (N.D.Ill.1994). The petitioners appealed and, in a 2-1 panel decision, we affirmed the district court. Bracy v. Gramley, 81 F.3d 684 (7th Cir.1996). The United States Supreme Court reversed our decision on the question of whether Bracy was entitled to discovery, finding that he had shown good cause for moving forward with his claim for relief. Bracy v. Gramley, 520 U.S. 899, 117 S.Ct. 1793, 138 L.Ed.2d 97 (1997). The Court then returned Collins’ case to us for reconsideration in light of the Bracy decision. Collins v. Welborn, 520 U.S. 1272, 117 S.Ct. 2450, 138 L.Ed.2d 209 (1997). We sent the cases to the district court, which eventually denied habeas relief as to each petitioner’s conviction but granted relief as to their sentencing. United States ex rel. Collins v. Welborn, 79 F.Supp.2d 898 (N.D.Ill.1999). We affirmed the district court as to the convictions but reversed on the sentencing issue, again in a 2-1 panel decision. Bracy v. Schomig, 248 F.3d 604 (7th Cir.2001). Subsequently, that opinion was vacated when a majority of our judges voted to rehear the case en banc. Which brings us to today.
The events giving rise to this case occurred some 21 years ago when a drug deal turned deadly. Three men, expecting [409]*409to buy drugs, were instead robbed and taken from a Chicago apartment to a viaduct at Roosevelt Road and Clark Street, where they were shot to death. Bracy, Collins, and Murray Hooper, who was tried separately, were charged with various crimes growing out of the episode.
The chief witness against Bracy and Collins was Morris Nellum, who admittedly took part in the crimes. Nellum testified that Collins asked him to drive Collins’ Cadillac to Roosevelt Road and Clark Street because Collins wanted to be picked up there. Nellum then saw Collins, Bracy, and Hooper place three men in the back seat of an Oldsmobile; Collins drove away in that car. Bracy drove his own car and Nellum drove the Cadillac. When Nellum arrived at the viaduct, he heard shots. Immediately, he saw Bracy running to his automobile; he was carrying a sawed-off shotgun. Collins got into the car with Nellum. As they sped from the scene, Collins said, “That damn Hooper. I told him to wait until — I wanted to use the shotgun because they can’t trace the shotgun, but he used the gun instead.” Bracy gave Nellum $125 and told him to “Just be cool.” Nellum then drove, again with Collins, to Lake Michigan, where Collins threw two handguns into the lake — a .38-caliber Charter Arms revolver and a .357 revolver. The Charter Arms revolver was identified by Christina Nowell, who testified that Bracy previously had the opportunity to take the revolver from her. She also said that Bracy later told her “he had murdered some people with [her gun] and threw it into the Chicago River.” A gun, later discovered in the lake, was Nowell’s gun. At trial, in addition to Nellum, the State called a number of witnesses who provided enough pieces of the puzzle to convince the jury to convict Bracy and Collins and, in a separate proceeding, sentence them to death.
The court proceedings involving Bracy and Collins played out in a relatively routine manner until 1993, when Judge Malo-ney, who presided over their state court trial, was himself convicted of serious charges- — he was taking bribes from defendants in criminal cases during the time period of the Bracy-Collins trial. United States v. Maloney, 71 F.3d 645 (7th Cir.1995). Bracy and Collins did not bribe Maloney, but in the present petition they argue that their convictions and sentences violated due process because Maloney habitually came down harder on defendants who had not bribed him than he would have done had he not been on the take. He did this, they said, to deflect suspicion that he was soft on crime, a suspicion that might arise in cases where he unexpectedly acquitted or went easy on convicted defendants. Being hard on defendants who did not bribe him, Bracy and Collins contended, also inspired other defendants to offer bribes. In short, Bracy and Collins asserted that Maloney engaged in what has been dubbed “compensatory bias.”
Exactly what Bracy and Collins must prove to prevail on this claim has twice divided a panel of our court and has at least peripherally engaged the attention of the Supreme Court. It continues to divide us, although there are principles on which we do not disagree.
The first area of agreement is that Ma-loney is not entitled to the usual presumption that ordinarily informs judicial bias cases — -a presumption that public officials have “properly discharged their official duties.” United States v. Chemical Foundation, Inc., 272 U.S. 1, 47 S.Ct. 1, 71 L.Ed. 131 (1926). We can indulge in no such presumption in this case. The Supreme Court said that “unfortunately, the presumption has been soundly rebutted: Maloney was shown to be thoroughly [410]*410steeped in corruption through his public trial and conviction.” Bracy, 117 S.Ct. at 1799. Secondly, we agree that the fact that Maloney was so exceedingly corrupt does not support a per se finding that every case over which he presided was infected.
Our opinions diverge over exactly what the Supreme Court meant when it said that Bracy and Collins must show “that Maloney was actually biased in petitioner’s own case.” The phrase encompasses two concepts. One is “actual bias,” apparently in contrast to the appearance of bias, which ordinarily supports a judicial bias claim. The second makes clear that the petitioners must connect the complained-of bias to their specific case. The former is somewhat of a surprising limitation on their claim; the latter less so. Also, we seem not to agree on what the petitioners’ evidentiary burden is and how they can meet it.
First, actual bias. In Turney v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927), a prohibition-era case, the mayor of a village was empowered to try persons charged with unlawfully possessing intoxicating liquor. Under a village ordinance, the mayor could levy a fine against violators out of which the mayor was granted “his costs in each case, in addition to his regular salary, as compensation for hearing such cases.” And therein lay the problem: the mayor made extra money for his service as a judge if he convicted and fined those charged with breaking the law. For 6 months in 1923 the mayor received $696.35 from this process, a paltry sum, even adjusted for inflation, compared to Maloney’s take. The Supreme Court concluded that the mayor was disqualified from hearing cases both because of his “direct pecuniary interest in the outcome, and because of his official motive to convict and to graduate the fine to help the financial needs of the village.” Id. at 535, 47 S.Ct. 437.
Revisiting the Ohio statutes in Ward v. Village of Monroeville, 409 U.S. 57, 93 S.Ct. 80, 34 L.Ed.2d 267 (1972), the Supreme Court considered the case of a may- or who was authorized to try municipal and traffic violations, but who was not personally entitled to pocket a share of any fines imposed. The Court found that a direct financial stake in the outcome “did not define the limits of the principle.” The defendant was entitled to a neutral judge, which this mayor was not because money collected by the “mayor’s court” benefitted the mayor when he wore his executive hat in controlling the village’s finances.
Even the absence of an indirect financial basis for a claim of bias was not enough to save the conviction in In Re Murchison, 349 U.S. 133, 75 S.Ct. 623, 99 L.Ed. 942 (1955), in which the Court was concerned with the appearance of bias. The Court concluded that the same judge who acted, under Michigan law, as a “one-man grand jury” could not preside over a contempt proceeding against a witness:
Fairness of course requires an absence of actual bias in the trial of cases. But our system of law has always endeavored to prevent even the probability of unfairness. To this end no man can be a judge in his own case and no man is permitted to try cases where he has an interest in the outcome. That interest cannot be defined with precision. Circumstances and relationship must be considered. This Court has said, however, that “every procedure which would offer a possible temptation to the average man as a judge ... not to hold the balance nice, clear and true between the State and the accused, denies the latter due process of law.” [citing Turney]. Such a stringent rule may sometimes bar trial by judges who have no actual [411]*411bias and who would do their very best to weigh the scales of justice equally between contending parties. But to perform its high function in the best way “justice must satisfy the appearance of justice.” Offutt v. United States, 348 U.S. 11, 14, 75 S.Ct. 11, 99 L.Ed. 11.
Id. at 136, 75 S.Ct. 623.
In Aetna Life Insurance Co. v. Lavoie, 475 U.S. 813, 106 S.Ct. 1580, 89 L.Ed.2d 823 (1986), the Court again based its finding of a due process violation on the appearance of bias. A justice of the Alabama Supreme Court sat on a case which established that punitive damages were available on a claim against an insurer, a case which was similar to one which the justice, himself as a plaintiff, had pending in an Alabama trial court. The Court was concerned with the temptation that the justice might not “hold the balance nice, clear and true.” These cases tell us that ordinarily “actual bias” is not required, the appearance of bias is sufficient to disqualify a judge. But because of the language in the Supreme Court case in Bracy, we will focus today on actual bias.
The second concept — that the bias must be found “in petitioner’s own case” — is not surprising. In each of the cases we just discussed, the bias-or appearance of bias— appears in the very case the court is considering. That is not an unusual requirement. A habeas petitioner cannot show a due process violation in his own case because, for instance* the judge refused to suppress evidence in another case — or even that the particular judge hardly ever suppresses evidence at the request of the defense.
But the nature and extent of Maloney’s dereliction of duty casts this case in an unusual light and makes it hard to put Maloney in any normal framework. Not only is he not entitled to any presumption of fairness, but he is entitled to our derision. Not only did he find himself with the opportunity to show bias and unfairness, he was a criminal who, by his very presence on the bench, undermined the foundation of our system of justice. He was not a mayor presiding over an ordinance violation case and setting a fine, he was a racketeer sending men to the death chamber in the name of the State. It is hard to analyze what he did by looking at cases involving municipal fines or insurance claims. It is equally hard to understand why his judgment receives any level of protection.
Our only explanation is that the unique nature of this case may be why we need to look for actual bias. Maybe it is because the appearance of bias — or at least of criminality — is so obvious. It may be that we must be careful to tie our analysis to actual bias in the present case because Maloney was so obviously not concerned with justice in other cases. Whatever the reason, Bracy and Collins have the heavy burden of showing actual bias.
The issue, then, is the means by which they can meet their evidentiary burden. Clearly, they can use evidence extrinsic to the trial record in their case. After all, the appeal to the Supreme Court involved their right to take discovery. But that discovery, as Judge Rovner pointed out in her dissent in our panel decision after remand, produced no “smoking gun” or, as she also put it, no “hard proof’ of Malo-ney’s motives. 248 F.3d at 609. That, according to our panel decision, is pretty much the end of the story. To a certain extent, we disagree.
We see no reason why Bracy and Collins can show bias only by finding a smoking gun, which in this case apparently would be Maloney’s confession that he stacked the deck against them to take the heat off himself. Direct evidence of that sort is simply not available. But evidence short [412]*412of a confession by Maloney is, as we will see, present to support their claim. From that evidence, reasonable inferences can be drawn.
Furthermore, this is a death penalty case. Like all others sentenced to death, Bracy and Collins are entitled to our painstaking review of their convictions and death sentences because, as the Supreme Court has often recognized, death is different. See Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), and cases cited therein. We review the factual findings of the district court for clear error. Legal issues are reviewed de novo. Bocian v. Godinez, 101 F.3d 465 (7th Cir.1996). Having concluded that review, we see nothing that moves us to disturb the meticulous opinion of Judge William T. Hart in the district court (1) that it is more likely than not that Maloney engaged in compensatory bias in the death penalty phase of this case, or (2) that the evidence does not support such a finding in the guilt phase of the trial.
We have said that Maloney was a criminal, a racketeer, but these words do not convey just how serious his misbehavior was. First, we know he was convicted of racketeering, extortion, and obstruction of justice in gang-related murder cases. Maloney, 71 F.3d 645. His corruption made it possible for him to spend $400,000 more than he earned over 6 years ending in 1984. He was convicted of taking a bribe to acquit Lenny Chow, a hit man for a crime organization, who with two other men was charged in the murder of William Chin. Also with a bribe in his pocket, Maloney acquitted Owen Jones of a felony murder charge of beating a man to death during a burglary while convicting him instead on only a lesser charge of voluntary manslaughter.
Other cases show that Maloney was capable of camouflaging his actions in some cases by compensating for it in others. He accepted a bribe of $10,000 to acquit two El Rukn gang members of a double murder, but he returned the money when he suspected (correctly) that the FBI was monitoring him. The Illinois Supreme Court granted these men a new trial because Maloney was motivated to convict them in order to deflect suspicion, a direct example of compensatory bias. The court said:
That Maloney subsequently returned the money did not render his interest in the outcome any less acute. As defendants suggest, he wanted to insure that he did not lose his judicial post and salary as a result of a criminal indictment, and therefore was motivated to return a verdict that would not spark the suspicions of authorities.
People v. Hawkins & Fields, 181 Ill.2d 41, 228 Ill.Dec. 924, 690 N.E.2d 999, 1004 (Ill.1998). Similarly, a defendant named Dino Titone gave Maloney a $10,000 bribe, but Maloney convicted him anyway. Judge Earl E. Strayhorn, the Illinois judge presiding over Titone’s post-trial motion, vacated the conviction because Maloney had a motive to convict Titone to deflect suspicion from himself. See People v. Titone, No. 83 C 127, post conviction transcript (Cir. Ct. Cook County, July 25, 1997), R239. Another example of Maloney’s ability to cover his tracks came from the experience of attorney William Swano, a Malo-ney-briber in previous” cases. This time, Swano represented a man named James Davis in a case which Swano evaluated as weak. In other words, Swano did not think a bribe was necessary in order to win an acquittal for Davis so no bribe was offered. Swano was wrong; Davis was convicted. At Maloney’s trial, Swano testified that he construed the experience as a lesson that “to practice in front of Judge Maloney ... we had to pay.”
[413]*413At Maloney’s sentencing, the United States Government submitted a version of his offense that is a blueprint for compensatory bias:
THOMAS MALONEY’s corruption began at the time he was a criminal defense attorney paying off judges and court personnel to fix cases — including a notorious murder case — and continued through the time he was a judge working as a mafia factotum in the Cook County Circuit Court system and taking all manner of bribes on very serious criminal cases. Thomas Maloney’s reputation as a strict prosecution oriented judge was no mistake. By casting this image, Maloney sought to deflect suspicion from his criminal activity, while simultaneously giving select desperate defendants who knew the right people an incentive to pay him off. Thus, by using his position as a felony trial court judge to extract bribes from defendants who face long periods of imprisonment or execution, THOMAS MALONEY far surpassed the category of corrupt jurist to chart a new territory of defilement.
... [W]hen he got his turn on the bench, THOMAS MALONEY imposed a sinister system which had the dual effect of concealing and promoting his corruption. THOMAS MALONEY the former champion of the defendant became one of the most ruthless judges on the bench. Showing defendants little mercy had the effect of diverting any conceivable suspicion from MALONEY while at the same time giving defendants a strong motivation to cough up big bribery dollars.
We think this statement, the official position of the Government of the United States, accurately sums up Maloney’s curriculum vitae.
All this provides a framework for the petitioners’ claim that, on occasion, Malo-ney engaged in compensatory bias. The task for Bracy and Collins is to connect his bias with their case and they must do it without being able to get inside Maloney’s head. Their need to rely on circumstantial evidence arises because Maloney was not going to provide the link through some sort of confession. During discovery in this case he not only failed to admit that he took any untoward actions in this case: As Judge Hart put it, he “vehemently and arrogantly denied all of the bribery charges clearly established by the jury findings and the evidence presented at his criminal trial.” 79 F.Supp.2d at 907.
At his federal sentencing Maloney pointedly remembered Bracy and Collins. As he was insisting, in the face of all evidence, that he had been an honest judge with a distinguished career, he cited as a credit to his record both the case of Hawkins and Fields, where we know he engaged in compensatory bias, and the trial of Bracy and Collins as well. What can we infer from this? One could say nothing at all; any inference that Maloney was motivated by the desire to deflect suspicion from himself is simply conjecture. Yet we think, in the context of this case, it was certainly appropriate for the district judge to consider this reference an indication that compensatory bias might very well have been at work in the Bracy-Collins case.
And there is more. Consider Maloney’s appointment of Robert McDonnell as Bra-cy’s attorney. In 1981 Bracy’s original attorney was given permission to withdraw because Bracy ran out of money to pay him. Maloney appointed McDonnell to represent Bracy, and a short time later McDonnell announced that he was ready for trial.
Bracy alleged that McDonnell was appointed because he had been a partner of [414]*414Maloney’s, presumably a law partner, and because Maloney was looking to McDonnell to help ensure that Bracy would be convicted. Discovery in this case showed, however, that the two were never law partners. But it also showed that their connection was more troubling. Maloney and McDonnell knew each other and associated in some manner with Chicago organized crime families. When Maloney was a defense attorney in Chicago, his reputation was that of a “fixer.” In 1977 Maloney represented his friend Harry Aleman, who was a “hit man for the mob.” Aleman was charged with murder. According to Robert Cooley, a corrupt lawyer who became an FBI informant, Maloney paid the judge $10,000 and Aleman was acquitted.
Like Maloney, McDonnell was also considered an “outfit” lawyer. Not only that, but in 1966 McDonnell himself was convicted in federal court of conspiracy to distribute counterfeit money and was sentenced to 2 years in prison. In 1968 he was convicted of income tax evasion. When he was released from prison for that offense in 1972, he was disbarred. He was reinstated to the bar in 1980 and approached judges in criminal court for appointments. It was, as we said, in 1981 that he was appointed to represent Bracy. Later, in 1989, McDonnell was convicted of conspiracy to defraud the government and solicitation to influence the operation of an employee benefits plan. This time he was sentenced to 6 years, and in 1990 he withdrew his name from the Illinois roll of attorneys to save himself from disbarment.
What this reflects is that McDonnell did not have a highly developed ethical sense. It does not mean he did not have legal skills — though not enough, apparently, to escape detection himself. We think it’s fair to infer that if Maloney wanted a lawyer with questionable ethics, McDonnell was his man. Furthermore, in what could be construed as an attempt to deflect suspicion, after the Supreme Court decision in this case, Maloney, who was in prison, called McDonnell to obtain McDonnell’s signature on an affidavit which stated that it was actually Bracy who chose McDonnell as his attorney. McDonnell testified that he did not remember it that way.
So far we have a corrupt judge with mob connections, who attempts to cover his tracks, and is now a convicted felon. We have a defense lawyer, also with organized crime ties, who is also a convicted felon. Both are engaged in the trial of two men who are in serious danger of being sent to the death chamber. With that as the setting, we will now turn to the record to see whether there is any evidence from which to infer that Bracy’s and Collins’ due process rights at trial or during the death penalty hearing were violated in a manner that can best be explained by Maloney’s desire to appear tough.
Our analysis is informed by the principle that there is no harmless error analysis relevant to the issue of judicial bias. Edwards v. Balisok, 520 U.S. 641, 117 S.Ct. 1584, 137 L.Ed.2d 906 (1997); Cartalino v. Washington, 122 F.3d 8 (7th Cir.1997). In other words, it does not matter that we might conclude that any jury would have been likely to convict Bracy and Collins and approve death as their penalty no matter what their attorneys tried to do for them. Nor does it matter that a questionable ruling might have been found to be harmless by another court.
First, the guilt phase of the trial. The district court examined the discretionary rulings at the trial and found that there was no basis for concluding that the rulings were tainted by Maloney’s attempt to deflect attention from his corruption in other cases. The petitioners contended, for instance, that Neflum committed perju[415]*415ry. They argued that pieces of rope alleged to be consistent with the type of rope used to bind one of the victims were entered into evidence, despite the fact that the rope was very common and could have been purchased in any hardware store. These weak complaints, similar to those in many other trials, do not allow an inference of actual bias. Bracy and Collins also complained that Maloney refused to suppress photographs showing Collins in a broad-brimmed hat, which was consistent with a witness’s statement regarding his appearance on the night of the murders. Maloney chose to believe the police, rather than Collins, regarding how and where the photos were seized. Findings of this sort, which judges often make favoring a law enforcement version of conflicting events, do not support a claim of actual bias. We agree with Judge Hart that no discretionary rulings during the guilt phase of this trial lead to an inference that Maloney was actually biased against Bracy and Collins.
The penalty phase of the trial is another matter. In Illinois, that phase is divided into two parts. First, the jury decides if a defendant is eligible for the death penalty. To be eligible, he must be at least 18 years old and the crime must have involved one of the factors set out in the statute. Once a defendant is found eligible for the death penalty, the focus shifts to factors in aggravation and mitigation. Unless mitigating factors are sufficient to preclude the imposition of the death sentence, the defendant shall be sentenced to death. 720 ILCS 5/9-1, formerly Ill. Stat. ch. 38, par. 9-1.
In evaluating Maloney’s rulings at the penalty phase of this proceeding, we are again mindful that death is indeed different. In a separate opinion in Spaziano v. Florida, 468 U.S. 447, 468, 104 S.Ct. 3154, 82 L.Ed.2d 340 (1984), Justice Stevens pointed out that in the 12 years that passed since Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), “every Member of this Court has written or joined at least one opinion endorsing the proposition that because of its severity and irrevocability, the death penalty is qualitatively different from any other punishment, and hence must be accompanied by unique safeguards to ensure that it is a justified response to a given offense.” Those safeguards, we think, are found not just in the statutory provisions of any given state, but also in the manner in which those provisions are implemented in trial courts. Additionally, while the guilt phase of a trial is largely objective, involving cold, hard facts about what happened, a death penalty hearing often involves a good deal of subjective evidence. Evidence in mitigation often consists of testimony about what damaging forces a defendant has endured in his life or what kind of a person he otherwise is. We should not be misunderstood to be saying that rulings at the guilt phase are subject to a harmless error analysis, whereas in the penalty phase they are not. As we said earlier, harmless error does not apply to claims of judicial bias, ever, even in cases involving insurance payments or municipal ordinance violations, to say nothing of first-degree murder trials. But when we are dealing with alleged judicial bias, the nature of evidence in aggravation and mitigation requires us to look at the penalty phase with a skeptical eye, keeping in mind that as the trial judge, it was Malo-ney’s solemn responsibility to see that the death penalty hearing was fair. He failed miserably. And his failure was so egregious that it supports an inference that he failed, consciously or unconsciously, because of compensatory bias. If the death penalty hearing had been scripted, it could not have been more damaging to Bracy and Collins.
[416]*416We recall that McDonnell said he would be ready for trial a few weeks after he was appointed as Bracy’s attorney. But an examination of the record shows, although it turned out that he was adequately prepared for the guilt phase of the case, he wasn’t prepared for the penalty hearing, nor could he have been. It was not until the beginning of the trial that the prosecutor announced that at the penalty phase he planned to introduce, as an aggravating factor, evidence that Bracy was charged with murdering two people in Arizona. So McDonnell was about to embark on a jury trial in which his client was charged with three murders. And if Bracy were convicted, there would be evidence of two more, as yet unproven, murders committed in another state. We doubt McDonnell could possibly have been fully prepared for the penalty hearing.
When the guilt phase was over and the penalty hearing about to begin, McDonnell objected to the use of the Arizona murders as aggravating factors because there had been, as yet, no conviction in Arizona. Maloney seemed at first to agree that the use of the testimony was questionable. He said:
It hasn’t been tried? On what authority are you going to introduce or attempt to introduce it here?
Later he said, “Just assuming here if that were the case and then he were to be acquitted there and you had used part of the same evidence. Then where would we stand here?” On this point, Collins’ attorney, Irvin Frazen, asked for a severance. He was concerned that the Arizona evidence against Bracy would spill over onto Collins. Ultimately, Maloney denied Collins’ severance motion and, without saying why, determined that the Arizona evidence would be admitted.
McDonnell then did the next best thing; he appropriately asked for a continuance so he could properly prepare for the explosive Arizona evidence. He complained that he had recently been provided 80 pages of information about the Arizona case. The government said only 3 pages of the 80 pages were relevant. Apparently the prosecutor’s assessment was allowed to prevail; again without giving a reason, Maloney decided that the death penalty hearing would proceed against both defendants: “We are not adjourning anything for a week or ten days. We are proceeding, as a matter of fact.”
The evidence of the Arizona murders was admitted and it was inflammatory. It was the story of a nasty home invasion resulting in the brutal murder of two people. The survivor of the attack was the wife of one of the victims and the daughter of the other. She identified Bracy as one of the attackers.
The Illinois Supreme Court found no error in the refusal to grant a continuance because Bracy was not prejudiced by the introduction of the evidence. That was true, the court said, because by the time of the appeal Bracy had, in fact, been convicted in Arizona:
If we were to find the denial of the continuance to have been improper and remand for a new sentencing hearing, the State would then introduce Bracy’s Arizona convictions into evidence, thus raising an even stronger inference that Bracy committed the Arizona crimes.
87 Ill.Dec. 910, 478 N.E.2d at 286. This sounds to us more like a finding of harmless error than a finding that Maloney’s discretion was properly exercised. Our job is different from that of the Illinois Supreme Court. We need to view Malo-ney’s actions as of the time of trial. At that time, he could not have known that Bracy would be convicted, and for that matter there was even some doubt that Bracy would actually be tried in Arizona. [417]*417In the context of a capital sentencing hearing on an issue on which harmless error does not apply, Maloney’s ruling, even if supportable on a direct appeal as not being an abuse of discretion, lends support to an inference that he was showing compensatory bias. It is more than a fair inference that increasing the likelihood of the imposition of the death penalty would be fine with Judge Maloney.
Later, McDonnell again objected to the Arizona evidence, saying that it had come to his attention that there was a 1980 case presumably supporting his position that the evidence was inadmissible “although I do not have the citation.” When asked if he had a case on point, McDonnell said, “McDonnell2 on common sense.” He repeated that he did not have the citation. He said, “I will try to find the case. If I can’t find it, the Appellate Court can find it or the Supreme Court.” Maloney said “Ml right.” Less concern about the fate of the defendants and the importance of this discretionary, ruling on the admissibility of explosive evidence could hardly be imagined.
Finally, mitigation. No evidence in' mitigation was presented as to Bracy and little was offered as to Collins. Yet evidence in mitigation is crucially important in death penalty litigation. In Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), the Court said that the “sen-tencer” must not “be precluded from considering, as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.” See also Buchanan v. Angelone, 522 U.S. 269, 118 S.Ct. 757, 139 L.Ed.2d 702 (1998).
Maloney was sublimely unconcerned about a lack of evidence in mitigation, as unconcerned as he was about McDonnell’s lack of preparation for meeting the Arizona evidence. In fact, Maloney even tried to discourage McDonnell from making a closing argument at the death penalty hearing.
MR. McDONALD [SIC]: Wait a moment, judge.
THE COURT: What do you want?
MR. McDONALD: I want to argue.
THE COURT: You do?
MR. McDONALD: Certainly.
Maloney then called for a side-bar conference:
THE COURT: You don’t have to argue in this case.
MR. McDONALD: I want to argue.
MR. FRAZIN: Arguments are part of it.
THE COURT: They can be but they don’t have to be.
Ultimately, arguments were allowed.
McDonnell seemed to do the right thing in insisting on argument. But given his inability to counter the Arizona evidence because of Maloney’s denial of the continuance, he had nothing to say about the State’s evidence in aggravation. With no evidence in mitigation, he had nothing to talk about on that score as well. So it should come as no surprise that his “argument” was simply a tirade against the death penalty:
This is a human being and we don’t have the right to take another person’s life. Only God can do that. God gave us this life and only God can take it away, and I don’t care, none of us have the right to take a fellow human being’s life, not Bracy, not his Honor, not the prosecutor, and not you people.
[418]*418Not only is this sort of argument inadmissible in a sentencing hearing, see People v. Williams, 97 Ill.2d 252, 73 Ill.Dec. 360, 454 N.E.2d 220 (1983), but, worse, it “invited” the prosecution to come back with an incendiary retort of its own — that to say the death penalty is wrong is to malign all veterans:
I’ve heard that before. People in 1941 through 1945 killed in the name of their country [at which time an objection was overruled] in service to their country. Some of us went to Viet Nam and had to kill for this country, and I will be damned if anybody is going to tell me that what we did in Viet Nam or in any other war was a violation of the Fifth Commandment of the Bible.
Later, the prosecutor referred to McDonnell’s argument as “a slap in every veteran’s face.”
The prosecutor also alluded to the chance that Bracy and Collins might “escape from Stateville” again if they were given another chance: “Should we give them another chance; lock them up and give them a chance to escape and kill someone else?”
The Illinois Supreme Court noted that the prosecution’s remarks were a “bit dramatic” but rejected the claim that they constituted reversible error because, the court said, “there is no question that they [the prosecutor’s remarks] were invited.” We agree. The remarks were invited. McDonnell’s argument was so objectionable that it is hard to see how he or Malo-ney could not have known what type of response the prosecution was going to make to it. It is pushing credibility to imagine that an experienced trial judge (for Maloney was experienced, if not honest) did not see this scene unfolding. The prosecutor repeatedly called Maloney’s attention to the objectionable nature of McDonnell’s argument. Yet Maloney did nothing. Imposition of the death penalty was a foregone conclusion in this case.
Had the prosecutor’s comments not been invited, it seems likely that the courts of Illinois might very well have ordered a new death penalty hearing for Bracy and Collins a decade ago. In Murray Hooper’s first appeal, the Illinois Supreme Court vacated his death sentence. Hooper, as we have said, was charged along with Bra-cy and Collins with the murders in the present case. In Hooper’s case the prosecutor speculated that if he were placed in prison for life, Hooper might very well kill a guard or a chaplain. Relying on cases where it found a reference to parole and to the possibility of committing more murders improper and prejudicial [People v. Walker, 91 Ill.2d 502, 64 Ill.Dec. 531, 440 N.E.2d 83 (1982); People v. Gacho, 122 Ill.2d 221, 119 Ill.Dec. 287, 522 N.E.2d 1146 (1988) ], the court vacated Hooper’s death sentence. People v. Hooper, 133 Ill.2d 469, 142 Ill.Dec. 93, 552 N.E.2d 684 (1989). Reference to escape from prison in Bracy’s and Collins’ case can hardly be less damaging than reference to the possibility of parole in Hooper’s. It seems likely that if McDonnell had not set the prosecutor up so nicely, and if Maloney had not been so deliberately indifferent to the petitioners’ fates, the death sentences imposed on Bracy and Collins might, like Hooper’s, have been vacated many years ago.
What possible" motive could Maloney have had to allow such gross impropriety at this hearing? We feel compelled not to shirk from seeing the strong inference, given what we now know about Maloney, that he deliberately let this death penalty hearing become a debacle because imposition of the death penalty on these two men would bolster his reputation as a tough judge. We must do no less than Judge Strayhorn who, while recognizing the ex[419]*419tent of Maloney’s corruption, also recognized that in the Titone case he could not be certain about the role corruption might have played. He said, “I’m always faced with the fact that I can’t answer the question of was he tried in a fair tribunal before a judge who gave him a fair and an honest trial. And I must always stop and say that honestly I don’t know.” But he also said, “no amount of procrastination on my part, no amount of reluctance on my part can wipe out the fact that ... what went on in that courtroom as to Dino Titone was not justice.” He ordered a new trial.
In our case, it is a fair, if not inevitable, inference that Maloney used the death penalty hearing to deflect suspicion that might be aroused because of, say, his acquittal of another accused murderer who had bribed him. Without a confession from Maloney, we never will know for sure. But absolute certainty is not required. The burden we place on petitioners never is absolute. Defendants — especially defendants facing death — have a right under the Due Process Clause to a “fair trial in a fair tribunal.” Withrow v. Larkin, 421 U.S. 35, 46, 95 S.Ct. 1456, 43 L.Ed.2d 712 (1975). We think this means they have a right to a judge who takes seriously his responsibility to conduct fair proceedings, a judge who looks out for the rights of even the most undeserving defendants. Maloney fell far short of that mark. Given all the other circumstances that show Maloney’s utter disregard for justice, we think the inference that compensatory bias was at work in the death penalty phase of this case is a more compelling explanation for Maloney’s actions than things like incompetence, negligence, happenstance, or accident. The judgment affirming the convictions of William Bracy and Roger Collins but vacating their death sentences is Affihmed. The State may proceed, at its discretion, with a new penalty hearing as directed by the district court. The case is Remanded to the district court for further proceedings.