¶1specially concurring:
¶2I agree with the result reached by the majority in this case. The circuit court should not have denied Fair’s discovery request. Fair is entitled to find and present whatever evidence there may be to establish that Judge Foxgrover’s criminal conduct had an effect on his impartiality at Fair’s trial.
¶3I write separately because I would go beyond the majority’s holding and declare this state’s death penalty law unconstitutional. For the reasons set forth in my partial concurrence and partial dissent in People v. Bull, 185 Ill. 2d 179 (1998), the law violates the eighth and fourteenth amendments to the United States Constitution (U.S. Const., amends. VIII, XIV) and article I, section 2, of the Illinois Constitution (Ill. Const. 1970, art. I, § 2). It is therefore void and unenforceable. Under these circumstances, Fair’s death sentence should not be allowed to stand regardless of the outcome of the proceedings on remand. Even if Fair’s post-conviction claims prove unfounded, his sentence of death should be vacated and he should be sentenced to a term of imprisonment. Ill. Rev. Stat. 1987, ch. 38, par. 9 — l(j).