concurring in part and dissenting in part:
I concur with the majority’s findings that (1) the evidence produced by the State was sufficient to prove defendant Kendric Hayes guilty of the charged offenses beyond a reasonable doubt, and (2) the trial court’s decision to deny Karen Black’s testimony was not an abuse of discretion. Despite this agreement, I would require that the defendant be retried because the statements made by the prosecutor were so improper that they constitute plain error that deprived him of a fair trial. I dissent from the majority’s contrary decision.
I take this position for the following reasons.
Fursuant to Supreme Court Rule 615(a) (134 Ill. 2d R. 615(a)), “[pjlain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court.” We find “plain error” where there is an improper element in the trial and the evidence is closely balanced or when the claimed error was seriously prejudicial and precluded a fair trial for the defendant. People v. Hudson, 157 Ill. 2d 401, 626 N.E.2d 161 (1993). Where the statements of prosecutors are at issue, there is reversible error when it is impossible to say whether or not a verdict of guilty resulted from those statements. People v. Nieves, 193 Ill. 2d 513, 739 N.E.2d 1277, 1286 (2000).
The majority describes the evidence in this case as “overwhelming.” Apparently, the prosecutor did not see it that way; he found it necessary to either bolster closely balanced evidence or conceal insufficient evidence with totally improper rhetoric. Even if the evidence had been overwhelming, that fact does not prevent a finding of plain error on the second prong of the test — that the error was seriously prejudicial and prevented defendant from getting a fair trial.
In People v. Blue, 189 Ill. 2d 99, 724 N.E.2d 920 (2000), the court noted: “ ‘A criminal defendant, whether guilty or innocent, is entitled to a fair, orderly, and impartial trial’ conducted according to law.” Blue, 189 Ill. 2d at 138, 724 N.E.2d at 941, quoting People v. Bull, 185 Ill. 2d 179, 214, 705 N.E.2d 824 (1998). Citing Justice Ryan’s concurring opinion in People v. Green, 74 Ill. 2d 444, 455, 386 N.E.2d 272 (1979) (Ryan, J., specially concurring), quoting Screws v. United States, 325 U.S. 91, 107, 89 L. Ed. 1495, 1506, 65 S. Ct. 1031, 1038 (1945) (“ ‘Even those guilty of the most heinous offenses are entitled to a fair trial’ ”), the Blue court indicated that when the integrity of the judicial process is at risk, “the court will act on plain error regardless of the strength of the evidence of defendant’s guilt.” (Emphasis in original.) Blue, 189 Ill. 2d at 138, 724 N.E.2d at 941.
Admittedly, the conduct of the prosecutors in Blue and the subsequent case People v. Johnson, 208 Ill. 2d 53, 803 N.E.2d 405 (2003), was more blatant than that of the prosecutor in the case at bar. Also, the charged crimes were more serious (actual murder versus attempt), and the sentences imposed were death rather than Kendric Hayes’s 24 years. The state and federal constitutions do not, however, extend the promise of a fair trial only in capital cases. Criminal defendants are entitled to a fair trial regardless of the seriousness of the charged crime and regardless of their guilt or innocence. People v. Blue, 189 Ill. 2d at 138, 724 N.E.2d at 940, citing People v. Bull, 185 Ill. 2d at 214; U.S. Const., amend. XIX § 1; Ill. Const. 1970, art. I, § 2.
In my opinion, the prosecutor’s conduct in this case, while not as exaggerated as that in Blue, was every bit as inimical to the integrity of defendant’s trial and of the judicial process. I think a fair analogy might be that a person killed by a .22 Beretta is just as dead as the one killed by an AK-47.
Inflammatory argument that seeks to forge an emotional unity of purpose between the prosecution and the jury creates a very real risk that jurors may give actual evidence only cursory consideration or none at all. Such a bond compromises the defendant’s substantial right to a fair trial and threatens the integrity of the judicial process. In such a situation, it cannot be said with confidence that defendant’s trial was fundamentally fair, and the second prong of the plain error test is met.
While we cannot say for sure that the tactic was successful, it seems clear that the prosecutors in this case were attempting to subvert the jury’s role as neutral arbiter and to undermine the presumption of innocence by aligning the jurors with them as “the good guys” and characterizing the defendant as the “bad guy.” They began this effort by assuring them that the integrity of the State’s Attorney’s office stood behind the validity of the evidence and the credibility of the witnesses:
“Now, as prosecutors, Mr. Astrella and myself, as he said, we took an oath. We took an oath to prosecute these cases. We’re proud of what we do, and we take these very seriously. To that end, we have brought the evidence in this case.”
Another statement that attempted to create unity with the jurors and dissuade them from looking objectively at testimonial inconsistencies and that also suggested a personal belief regarding defendant’s guilt came at the conclusion of the State’s rebuttal argument:
Not only were the prosecutors attempting to forge a bond with the jurors, they were also expressing a personal belief in the truthfulness and validity of the evidence they would be presenting. This is "wrong because “the prosecutor’s opinion carries with it the imprimatur of the Government and may induce the jury to trust the Government’s judgment rather than its own view of the evidence.” United, States v. Young, 470 U.S. 1, 18-19, 84 L. Ed. 2d 1, 14, 105 S. Ct. 1038, 1048 (1985).
“Let’s let this bad man go because [our witnesses] had a few details wrong? Is that what this county is about? Or are we about sending people like this to jail? That’s where he belongs. Send him back to jail.” (Emphasis added.)
The State is expressly discouraging the jurors from critically assessing conflicting testimony. What would be serious misconduct under any circumstance seems particularly egregious given the fact that the State had produced no medical or forensic evidence to definitively substantiate a “reasonable inference” that one of the victims, Elijah Dabney, had been injured by buckshot.
There were, as defendant has pointed out, other statements that expressed the prosecutors’ personal beliefs:
Acknowledging the jurors’ right to believe that defendant did not intend to kill Jordan and to find him guilty of only aggravated battery with a firearm, the prosecutor said:
“We believe he’s guilty of both. *** But if for some reason you think his intent wasn’t to kill, find him guilty of aggravated battery of firearm, but we believe his intent was clear.” (Emphasis added.) Another example of the alleged expressions by the prosecutors of personal belief regarding the evidence is:
“He’s lying. He’s a convicted felon. That affects his believability. He’s been convicted of robbery. You can look at that and say, I don’t believe him. I don’t believe him. What he says doesn’t bear out, and he’s a convicted felon. I don’t believe him.” (Emphasis added.)
There may be some ambiguity in the printed version about precisely what the prosecutor meant — was he simply continuing to suggest what the jury might think to its collective self or was he really indicating his own belief? — but, given other expressions of the prosecutor’s beliefs, reasonable jurors could, and maybe would, take this statement as more of the same.
Such expressions of prosecutorial belief have drawn fire as improper from the supreme court. See People v. Caballero, 126 Ill. 2d 248, 271-72, 533 N.E.2d 1089, 1097 (1989); People v. Whitlow, 89 Ill. 2d 322, 433 N.E.2d 629 (1982); People v. Monroe, 66 Ill. 2d 317, 362 N.E.2d 295 (1977).
Defendant has made a creditable argument that there were alternative interpretations construing the material that I have quoted as violations of other prohibitions and there were additional improper statements that I have not included here. I believe the ones I have set out sufficiently establish both the existence of plain error and ample justification for remanding this case for a new trial.
It seems clear to me that when the State arrogates to itself the role of witness/juror and backs up its conclusions and beliefs as to the proper outcome with the prestige of the prosecutor’s office and entices the jury into an alliance of the “good guys” against the defendant, there is prejudice not only to the defendant and but also to the judicial process. This defendant’s right to a fair trial was seriously compromised. A token gesture of our disapproval is simply insufficient.
The supreme court has made clear that its numerous exhortations and warnings over the years have fallen on deaf ears and have failed to deter conduct that it considers threatening to the judicial process. See, inter alia, People v. Moss, 205 Ill. 2d 139, 170-71, 792 N.E.2d 1217 (2001) (“This conclusion should not be interpreted in any way as condoning improper prosecutorial remarks that have become all too frequent in criminal trials. *** Although a new trial is not always a necessary sanction for improper remarks of a prosecutor, comments denigrating defendant’s witnesses must be strongly condemned”); Moss, 205 Ill. 2d at 174-75 (McMorrow, J., specially concurring) (“I believe that the remarks made by the prosecutors during closing argument at defendant’s sentencing hearing must be strongly rebuked. *** The prosecutorial remarks in this case were unprofessional and debased the sentencing proceeding. *** I caution prosecutors not to make these comments again, and I urge judges to vigorously guard against such unprofessional conduct”).
Justice Freeman, concurring in part and dissenting in part, joined by Justice Kilbride, undertook in Moss a lengthy analysis of why there should have been a finding of plain error.
“Our past ‘messages’ appear to go unheeded as this case more than amply demonstrates. I am further troubled by the fact that the court’s handling of this issue does nothing that would serve to diminish the likelihood of such conduct from recurring in our courtrooms. In fact, I see quite the contrary: Today’s opinion reveals that this court *** (ii) will not, even in the face of conduct that is, by the court’s own admission, both ‘condemnable’ and ‘all too frequent in criminal trials’ attempt to discipline or even name those who engage in conduct that this court has prohibited. Why then should any prosecutor readjust his or her argument to conform to our holdings when nothing happens to those who do not? In light of these facts, I am more than confident that such conduct will be repeated in the future because there are simply no adverse consequences for those prosecutors whose behavior crosses the line, which is what happened in this case.” Moss, 205 Ill. 2d at 179-80, 792 N.E.2d at 1240 (Freeman, J., concurring in part and dissenting in part, joined by Kilbride, J.).
Citing the United States Supreme Court’s observation in a 1985 prosecutorial misconduct case that “the trial judge has the responsibility to maintain decorum in keeping with the nature of the proceeding; ‘the judge is not a mere moderator, but is the governor of the trial for the purpose of assuring its proper conduct[ ]’[citation]” (United States v. Young, 470 U.S. at 10, 84 L. Ed. 2d at 9, 105 S. Ct. at 1043-44), Justice Freeman urged “trial judges to deal promptly with actions that serve to debase our criminal proceedings and jeopardize their fairness.” Moss, 205 Ill. 2d at 192, 792 N.E.2d at 1247 (Freeman, J., concurring in part and dissenting in part, joined by Kilbride, J.). Referring to the majority decision, he continued:
“Notwithstanding the court’s words of condemnation [citation] nor the concurring justice’s reiteration of her strong disapproval of this type of courtroom behavior [citation], my colleagues’ disposition of this issue will serve only to embolden those who would engage in such highly charged rhetoric and confuse the trial judges who have to deal with it. This court cannot expect the trial judges to vigorously guard against improper conduct if we ourselves fail to address the problem with any consistency.” Moss, 205 Ill. 2d at 195, 792 N.E.2d at 1249 (Freeman, J., concurring in part and dissenting in part, joined by Kilbride, J.).
In the wake of Blue and Moss, the court took up the cases of three men alleged to have acted with Blue in the commission of the charged crimes. People v. Johnson, 208 Ill. 2d 53, 803 N.E.2d 405 (2003). In that case, Justice Rarick, writing for a unanimous court, noted that the disposition in Johnson “requires that we further delineate the dimensions of Blue, applying the principles and standards of review utilized in that case.” Johnson, 208 Ill. 2d at 60, 803 N.E.2d at 410. He observed that: “Indeed, concern over the cumulative effect of errors that ‘created a pervasive pattern of unfair prejudice,’ much of it attributable to misconduct of the prosecutors, is what drove this court’s analysis in Blue” and stated that “Blue represents an important step this court has taken to stem prosecutorial misconduct, a problem that courts across the country have, for the most part, been unable or unwilling to control. [Citation.]” Johnson, 208 Ill. 2d at 64-65, 803 N.E.2d at 412.
In analyzing this problem, Justice Rarick quoted {Johnson, 209 Ill. 2d at 65-66, 803 N.E.2d at 412-13) from a case decided by a federal district court in New York:
“This court has several times used vigorous language in denouncing government counsel for such conduct as that of the United States Attorney here. But, each time, it has said that, nevertheless, it would not reverse. Such an attitude of helpless piety is, I think, undesirable. It means actual condonation of counsel’s alleged offense, coupled with verbal disapprobation. If we continue to do nothing practical to prevent such conduct, we should cease to disapprove it. For otherwise it will be as if we declared in effect, ‘Government attorneys, without fear of reversal, may say just about what they please in addressing juries, for our rules on the subject are pretend-rules.’ *** The practice of this court — recalling the bitter tear shed by the Walrus as he ate the oysters — breeds a deplorably cynical attitude towards the judiciary.” United States v. Antonelli Fireworks Co., 155 F.2d 631, 661 (2d Cir. 1946) (Frank, J., dissenting).
The fact that the quote was authored 58 years ago by Judge Jerome Frank serves to emphasize that courts have been unsuccessful over a period of many years in dealing with this frustrating problem.
The Johnson court concluded its framing of the context in which the issues would be viewed as follows:
“The Moss dissent also conveys a sense of exasperation with the ‘helpless piety’ that afflicts our judiciary. In Moss, our distinguished colleagues in dissent observed that threats of reversal, and words of condemnation and disapproval, have been less than effective in curbing prosecutorial misconduct and are unlikely to achieve any greater success in the future[.]
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Within this milieu, and against the precedential backdrop of Blue, we now turn our attention to the facts of these consolidated cases.” Johnson, 208 Ill. 2d at 66-67, 803 N.E.2d at 413.
Finally, after completing the analysis of all three cases individually, finding that two of the convictions had been properly reversed and remanding the third case for consideration of the defendant’s claim of ineffective assistance, Justice Rarick offered the following word of caution:
“We note that our decision in Blue does not furnish a license to courts of review to adopt a cursory or skeletal analysis of the facts and issues before them. It does signal our intolerance of pervasive prosecutorial misconduct that deliberately undermines the process by which we determine a defendant’s guilt or innocence.” (Emphasis in original.) Johnson, 208 Ill. 2d at 117, 803 N.E.2d at 442.
It is my belief that we have such deliberate undermining in this case.
Again, I emphasize that we do not deal here (or ever) with a capital case. Nevertheless, I believe that depriving sc person not proven guilty beyond a reasonable doubt of liberty for even a minimal term is just as much a miscarriage of justice as sentencing such a person to death and must be guarded against with great care. We are called upon to provide guidance and direction to trial judges, prosecutors, and defense counsel regarding conduct in “lesser” criminal cases which may impair the right of the defendant to receive a fair trial. I do not believe we satisfy that responsibility when we “anticipate that savvy prosecutors” will respond favorably to our “disapproval of the foregoing remarks” (even though, for decades, prosecutors have ignored similar disapproval from the supreme courts of our state and of the United States) and decline to send this case back so it can be done right. I cannot agree with that decision and respectfully dissent.