The Illinois Supreme Court issued two opinions on Friday, February 19. In People v. Jackson, the Supreme Court upheld an appellate court’s decision to deny a defendant leave to file a successive postconviction petition. In People v. Birge, the Supreme Court held that a circuit court judge did not err in reciting all four of the Rule 431(b) principles together to a group of prospective jurors, and the Supreme Court also vacated the defendant’s restitution order and remanded the matter for a new hearing to determine the proper amount of restitution.
By Kerry J. Bryson, Office of the State Appellate Defender
Kevin Jackson sought leave to file a successive post-conviction petition raising two claims: that his right to due process was violated by the state’s use of coerced witness statements and that he was actually innocent of the murder and aggravated battery charges of which he was convicted. The circuit court denied leave, the appellate court affirmed, and today the Illinois Supreme Court affirmed, as well.
With regard to the issue of coerced witness statements, the Court first noted that the jury had heard extensive testimony on this subject at trial and necessarily rejected the claims of coercion given that the jury convicted defendant. Attached to Jackson’s successive post-conviction pleadings, however, were documents showing police misconduct by detectives that had been involved in interviewing the witnesses in his case.
While new evidence of police misconduct can satisfy the cause-and-prejudice standard for filing a successive post-conviction petition in some cases, the Court concluded that it was insufficient here. The material Jackson attached to his successive petition was not relevant to establishing a pattern and practice of witness intimidation where it consisted of documents relating to civil lawsuits which had not resulted in any finding of wrongdoing by the officers and citizen complaint logs against detectives involved in defendant’s case, none of which involved claims of coercion or intimidation. The Court clarified that evidence of other misconduct is not required to be “strikingly similar” to the misconduct alleged by Jackson, but the similarity is a factor to be considered.
The Court also rejected Jackson’s actual innocence claim on the basis that the evidence in support was not new. Two of the witness affidavits attached to Jackson’s successive post-conviction petition were repetitive of the trial testimony of those same witnesses. And, police reports attached to defendant’s pleadings made clear that the third witness had been known to Jackson early in the investigation of the case. Jackson’s own affidavit attached to his first post-conviction petition stated that the witness had been at trial, ready to testify, but had not been called. Accordingly, that witness’s proposed testimony was not new.
By Kerry J. Bryson, Office of the State Appellate Defender
Over the past several years, Illinois’ reviewing courts have decided several cases dealing with the jury admonishment requirements of Rule 431(b). That Rule requires that the judge in a criminal trial inquire of each potential juror whether that juror understands and accepts certain legal principles, including that defendant is presumed innocent, that the state has the burden of proof beyond a reasonable doubt, that defendant is not required to offer any evidence, and that if defendant does not testify it cannot be held against him. The last sentence of the Rule states that “[t]he court’s method of inquiry shall provide each juror an opportunity to respond to specific questions concerning the principles set out in this section.”
Today, the Supreme Court decided it was not error for the trial judge to recite all four of the Rule 431(b) principles together, rather than one at a time, to a group of prospective jurors, and then ask for a show of hands to indicate that the jurors understood those principles and that they accepted them. Brian Birge had not objected to this manner of voir dire in the trial court, but on appeal argued that the trial judge failed to ensure that the jurors understood and accepted each of the principles by grouping them into a single broad statement of law rather than obtaining a separate understand-and-accept response for each individual principle.
In rejecting Birge’s claim, the Court noted that the judge had read each principle and had asked the specific questions provided for in the Rule—whether the jurors understood and accepted those principles. The Court observed that the Rule specifically allows the questions to be asked in a group and does not require an oral response, such that the show of hands was proper. Accordingly, the procedure complied with the plain language of the rule.
Birge also raised a claim of error with regard to the restitution imposed, specifically that the amount of restitution was set without evidentiary support. While the victim testified to the general damage that occurred, the state did not offer any numerical evidence to support its request for the specific amount that was ultimately imposed. And, while Birge did not object below, today the Illinois Supreme Court held that a claim that a restitution order lacks sufficient evidentiary basis is reviewable as second-prong plain error. The Court went on to vacate the restitution order and remand the matter for a new hearing to determine the proper amount of restitution.
In a lengthy dissent on the Rule 431(b) issue, Justice Neville explained that he would have found several errors in the court’s use of group questioning with a show-of-hands response and would have found plain error under both the first and second prongs of the plain error doctrine. Justice Neville went on to discuss his conclusion that Rule 431(b) is facially unconstitutional. He explained that the failure of the Rule to require a voir dire that elicits information about each prospective juror’s beliefs, opinions, biases, and prejudices undermines the goals of that process. Justice Neville opined that an amended Rule 431(b) should require that the trial court ask individual questions of each juror and prohibit group questioning and non-verbal responses. Further, the Rule should prohibit asking jurors whether they understand the principles because the judge, not the juror, should make that determination. Justice Neville would also include a definition of proof beyond a reasonable doubt in Rule 431(b). And, finally, the Rule should require a pretrial questionnaire be used to familiarize jurors with legal principles, elicit information about jurors’ opinions and beliefs, and assist the parties and the court during voir dire.