concurring in part and dissenting in part:
I concur in that portion of the majority’s decision finding that: (1) the trial court’s failure to instruct the jury, sua sponte, of IPI Criminal 4th No. 24 — 25.09X was not plain error, and (2) defendant’s claim of ineffective assistance of trial counsel fails on its merits. I dissent, however, from the finding that the trial court’s failure to comply with Illinois Supreme Court Rule 431(b) (eff. May 1, 2007) does not entitle defendant to a new trial.
I begin my analysis — which is as much policy, philosophy and precedent as legal context — with the premise that the supreme court rules play a significant role in the fair operation of our judicial system and, therefore, that the court does not either make or change its rules for no reason or with no intended impact.
We employ an adversarial process in our courts. That process relies on the philosophy that if the parties bring their dispute before an impartial fact finder, and evidence is presented and tested through direct and cross-examination, and the applicable law is applied, the truth will be revealed. Through the education of prospective lawyers, the promulgation of rules of professional conduct, the maintenance of a registration and disciplinary system for members of the bar, the requirement of free legal assistance for indigent criminal defendants, and even the requirement that attorneys either provide pro bono service hours or make monetary contributions to not-for-profit agencies providing free legal services in civil cases, the supreme court strives to maintain a basic level of competence and reasonable professional performance among lawyers and judges in the state. But lawyers and judges are human, and there will undoubtedly be variations in knowledge, skill, available time, and work ethic that will not infrequently skew the truth-seeking function of the courts.
It is, I believe, the quest for a level playing field which best serves the proper functioning of the adversarial process that has caused the supreme court to adopt rules relating to the procedures to be followed in the courts of Illinois. I believe, subject, of course, to correction from the supreme court, that that purpose is the reason why the court so often reiterates that its rules are mandatory and not merely aspirational. People v. Henderson, 217 Ill. 2d 449, 471, 841 N.E.2d 872, 884 (2005) (“Such a conclusion is further supported by this court’s familiar maxim that ‘[t]he rules of court we have promulgated are not aspirational. They are not suggestions. They have the force of law, and the presumption must be that they will be obeyed and enforced as written.’ Bright v. Dicke, 166 Ill. 2d 204, 210[, 652 N.E.2d 275] (1995). Thus, strict compliance with the rules of this court is generally required. Village of Lake Villa v. Stokovich, 211 Ill. 2d 106, 116[, 810 N.E.2d 13] (2004)”).
It would seem to me that if I am correct that the rules are integral to our system of justice, there should be a corresponding presumption that, absent clear evidence to the contrary, the violation of a rule results in some level of prejudice to the party who has lost its benefit. Although such a presumption would be rebuttable, it should reasonably be the burden of the violator to prove the violation was not harmful, not of the victim to prove that it was. But see People v. Herron, 215 Ill. 2d 167, 187, 830 N.E.2d 467, 480 (2005) (The defendant has the burden of persuading this court that the court’s error severely threatened the fairness of his trial).
It has also been my observation that rules are added because of unmet systemic needs, and are amended as a result of flaws in either their execution or enforcement. It is within this general context that I consider whether the 2007 amendment to supreme court Rule 431(b) compels a different decision than that reached when the supreme court considered the 1997 amendment to that rule in People v. Glasper, 234 Ill. 2d 173 (2009).
I have to admit that the Glasper decision itself causes me pause because it appears to so easily support the majority’s reasoning. Nonetheless, there is language in People v. Zehr, 103 Ill. 2d 472, 469 N.E.2d 1062 (1984), which is the supreme court’s seminal decision on the principles that are the subject of Rule 431(b), and in Glasper itself, to permit an analysis that is less permissive and rationalizing of error.
There are three reasons why I think a different outcome from that in Glasper is both appropriate and necessary. The first is the fact and the progression of the amendments to Rule 431(b). The second relates to the mandatory application of the supreme court rules generally and this rule specifically. And third, the nature and character of the Zehr principles themselves strongly argue that absolute compliance with the most recent version of the rule should be required.
Here it is undisputed that the trial court did not comply with the rule. The State conceded there was error; the majority so finds, and I agree. It is also undisputed that the defendant did not preserve the error. The issue he raises under Rule 431(b) is, therefore, forfeited. People v. Allen, 222 Ill. 2d 340, 350, 856 N.E.2d 349, 351 (2006). He can only secure consideration and relief if we can find plain error. 134 Ill. 2d R. 615(a).
In People v. Herron, the supreme court delineated two situations (a two-pronged test) in which a reviewing court can reach an unpreserved error: first, where the evidence is closely balanced, regardless of the nature of the error; or, second, where the error is so serious that the defendant was denied a substantial right and a fair trial, regardless of the closeness of the evidence. People v. Herron, 215 Ill. 2d 167, 178-79, 830 N.E.2d 467, 475 (2005). The evidence in the instant case was not closely balanced, so we consider the availability of relief under the second prong of the plain error analysis. As the court explained, this second prong “guards against errors that erode the integrity of the judicial process and undermine the fairness of the defendant’s trial.” Herron, 215 Ill. 2d at 186, 839 N.E.2d at 479.
The same analytical framework — that is, analysis under the second prong — was followed by five panels of the First District (People v. Anderson, 389 Ill. App. 3d 1, 904 N.E.2d 1113 (2009); People v. Graham, 393 Ill. App. 3d 268 (2009); People v. Wilmington, 394 Ill. App. 3d 567 (2009); People v. Arredondo, 394 Ill. App. 3d 944 (2009); People v. Madrid, 395 Ill. App. 3d 38 (2009)) and one panel of the Second District (People v. Blair, 395 Ill. App. 3d 465 (2009)). The appellate panels in these cases all found that the second prong of the plain error test had been satisfied, reversed the defendant’s conviction, and ordered a new trial.
By contrast, I am aware of two cases reaching contrary results: an earlier decision by this same divided panel in the instant case (vacated pursuant to supervisory order) and the Fourth District’s decision in People v. Stump, 385 Ill. App. 3d 515, 896 N.E.2d 904 (2008). In both of those cases, the error was found to be harmless and the convictions were affirmed. The majority’s newly revised decision, relying on Glasper, again provides defendant with no relief, this time finding no plain error.
The error committed by the trial court in this case was in failing to require each juror to demonstrate, in response to questions asked by the court as required in Rule 431(b), that he or she fully understood and accepted the bedrock principles integral to the selection of an impartial jury and, thus, a fair trial. For the reasons that follow, I would find that the error satisfies the second prong of the plain error test and, therefore, cannot be harmless.
1. Progression of Enactment and Amendment of Rule 431(b)
Section (b) was added to Rule 431 in 1997 to ensure compliance with the principles enunciated by the court in its 1984 decision in Zehr. People v. Anderson, 389 Ill. App. 3d 1, 8, 904 N.E.2d 1113, 1119 (2009) (“Before that, in 1997, Rule 431 was amended to ensure compliance with the Zehr principles by changing the court’s voir dire requirements from discretionary to compulsory by amending the word ‘may’ to ‘shall’ ”). The 1997 change actually represented a compromise. The Supreme Court Rules Committee had recommended that the trial courts be required to question the jurors on each of the four Zehr principles. People v. Glasper, 234 Ill. 2d at 187, citing Illinois Supreme Court Rules Committee, Recommendations to the Supreme Court of Illinois (March 1997). The supreme court, however, rejected that proposal, instead adding subsection (b), requiring the trial courts to undertake such questioning only if they were specifically requested by the defendant to do so.
Considering the simple fact of the variance between the recommendation of the rules committee and the change adopted by the court in 1997, and the fact that the supreme court rejected one in favor of the other, there is a clear conclusion to be drawn that the two approaches to ascertaining whether the jurors understood the Zehr principles were (and are), in fact, different. Then in 2007, the supreme court again amended Rule 431(b), this time adopting the procedure it had rejected ten years earlier in 1997. Given this sequence of events, it is logical to conclude that this newest amendment to the rule was added to address specific concerns, and that it makes a meaningful or significant change from the 1997 version which the court considered in Glasper.
In fact, every amendment to a rule is presumed to have a purpose, and that presumption requires the courts to consider the need for the amendment and the purpose it serves. People v. Allen, 313 Ill. App. 3d 842, 846, 730 N.E.2d 1216 (2000). And, indeed, the Glasper court implicitly acknowledged a different purpose, stating that its decision did not apply to the most recent amendment to the rule. Glasper, 234 Ill. 2d at 200 (“this holding is limited to the version of Rule 431(b)(4) that was in effect at the time of the instant trial, and would not necessarily apply to subsequent versions of the rule”).
The Glasper court also reserved its option of finding plain error under the second prong of the plain error test. Glasper, 234 Ill. 2d at 192. The court drew a distinction, stating that even though the error in Glasper did not involve “a fundamental right, or even a constitutional protection,” but rather “a right made available only by rule of this court *** [and] was not afforded to all defendants — only those defendants who chose to exercise it,” “a trial before a biased jury would constitute a structural error not subject to harmless error review.” Glasper, 234 Ill. 2d at 193, 200-01. Specifically, the Glasper court said:
“We emphasize that this holding is limited to the version of Rule 431(b)(4) that was in effect at the time of the instant trial, and would not necessarily apply to subsequent versions of the rule.” (Emphasis added.) Glasper, 234 Ill. 2d at 200.
The court went on to explain that its holding was limited to the 1997 version of the rule, and specifically, to subsection (4) of section (b), and stated that a violation of that rule could constitute reversible error “[i]f the facts in this case demonstrated that the trial court’s failure to question the venire in accordance with Rule 431(b)(4) resulted in defendant being tried before a biased jury *** as a trial before a biased jury would constitute structural error.” Glasper, 234 Ill. 2d at 200-01. The court continued:
“We reject the idea that the trial court’s failure to conduct Rule 431(b)(4) questioning makes it inevitable that the jury was biased, particularly when the record before us demonstrates that the jurors in this case were both admonished and instructed against forming an adverse inference against defendant based on his decision not to testify. To do so would require us to presume that citizens sworn as jurors ignore the law and the jury instructions given to them. This notion is contrary to our precedent which instructs us to make the opposite presumption. [Citation.]” (Emphasis added.) Glasper, 234 Ill. 2d at 201.
However, while it had previously chosen not to “mandate Zehr questioning in every case,” that is no longer the rule.
“As previously stated, when crafting the version of Rule 431(b) applicable here, this court had the opportunity to mandate Zehr questioning in every case, but chose not to. Instead, this court made the right to Zehr questioning permissive. The court intentionally structured Rule 431(b) so that the trial court’s default position was to refrain from Zehr questioning. We conclude that a violation of Rule 431(b), as applied in this case, does not require automatic reversal and is amenable to harmless error review.” (Emphasis added.) Glasper, 234 Ill. 2d at 200.
The inference I would draw is that the supreme court recognizes that, if the jurors are not questioned in accordance with the current mandatory version of the rule, there is a likelihood that the jury may be biased, that structural error may occur, and that the conviction should be reversed.
I would find that, given the supreme court’s specific reservation of the issue in the instant case, and also by logical conclusion based on the court’s own permutations of its rule, that Glasper does not foreclose a finding of plain error and a decision to reverse the conviction and remand for a new trial.
So, given Glasper, how do we apply Rule 431(b) to this case? The rule as most recently amended states:
“The court shall ask each potential juror, individually or in a group, whether that juror understands and accepts the following principles: (1) that the defendant is presumed innocent of the charge(s) against him or her; (2) that before a defendant can be convicted the State must prove the defendant guilty beyond a reasonable doubt; (3) that the defendant is not required to offer any evidence on his or her own behalf; and (4) that the defendant’s failure to testify cannot be held against him or her; however, no inquiry of a prospective juror shall be made into the defendant’s failure to testify when the defendant objects.
The court’s method of inquiry shall provide each juror an opportunity to respond to specific questions concerning the principles set out in this section.” (Emphasis added.) Ill. S. Ct. R. 431(b) (eff. May 1, 2007).
Under the newly modified rule, every judge in a criminal case is charged with a duty to conduct a fair trial and, to that end, has an affirmative obligation, sua sponte, to make sure each juror has a working knowledge of and commitment to the fundamental requirements of the civic task he or she has undertaken. The court must fulfill that obligation set out in Rule 431(b) — during the jury selection process, before the trial begins. Zehr, 103 Ill. 2d at 477, 469 N.E.2d at 1064.
Presumably, the obligation rests with the judge because, at the beginning of trial, throughout the proceedings, and in giving the instructions of law prior to deliberations, it is constantly reiterated that while the jury is the finder of fact, the court is the giver of the law. Only the judge’s pronouncements of law have the weight of authority. Moreover, the existence and language of the rule strongly suggest that the Zehr principles are so fundamental to producing an unbiased jury, as our system defines it, that instructing the jurors on them should not be dependent on the knowledge or skill or preparation time of the defendant’s attorney, but should be assured to every defendant in every criminal court in our state by placing the responsibility directly on the trial judges.
2. The Mandatory Nature of the Supreme Court Rules Generally and the Specific Language of Mandate Found in Rule 431(b) Itself
We recognize that the court stated in Glasper, 234 Ill. 2d at 193, that “[t]he violation of a supreme court rule does not mandate reversal in every case,” citing to its decision in People v. Houston, 226 Ill. 2d 135, 874 N.E.2d 23 (2007). However, our supreme court has expressly stated on numerous occasions that its rules “ ‘ “are not aspirational. They are not suggestions. They have the force of law, and the presumption must be that they will be obeyed and enforced as written.” ’ ” Rodriguez v. Sheriff’s Merit Comm’n, 218 Ill. 2d 342, 353, 843 N.E.2d 379, 385 (2006), quoting Roth v. Illinois Farmers Insurance Co., 202 Ill. 2d 490, 494, 782 N.E.2d 212, 215 (2002), quoting Bright v. Dicke, 166 Ill. 2d 204, 210, 652 N.E.2d 275, 277-78 (1995). The Glasper court expressly reaffirmed this position. Glasper, 234 Ill. 2d at 197.
The Stump court’s ruling failed to give effect to this directive and instead inappropriately expanded the supreme court’s limited holding in People v. Houston, 226 Ill. 2d 135, 874 N.E.2d 23 (2007). The Houston court “emphasize[d] the limited scope of [its] decision.” Houston, 226 Ill. 2d at 152, 874 N.E.2d at 34. Specifically, the court stated:
“We emphasize the limited scope of our decision. We do not conclude that the failure to obtain the presence of a court reporter during voir dire creates, in itself, a per se presumption of ineffective assistance of counsel. [Citation.] Nor do we conclude that the mere failure to record voir dire, without any claim of error in the jury selection process, requires a remand for reconstruction of the jury selection proceedings. [Citation.] This is not to say, however, that our rules are unimportant. We point out that the difficulty presented in the case at bar could have been avoided had the trial judge simply followed the mandate of Rule 608(a)(9). This court has often noted that our rules are not mere suggestions. Rather, ‘[t]hey have the force of law, and the presumption must be that they will he obeyed and enforced as written.’ [Citation.] The situation here confronting us illustrates the importance of our rules and the need for compliance with them.” Houston, 226 Ill. 2d at 152, 874 N.E.2d at 34.
The above language illustrates the narrow reach of the Houston court’s holding, clearly showing that it is merely an exception to the general rule that supreme court rules must be enforced as written. The supreme court has the authority to make exceptions to its rules. We, at the appellate level, do not. Instead, we are bound to follow supreme court precedent, which requires strict compliance with and enforcement of supreme court rules as written.
If the supreme court wishes to make an exception to this general rule to hold that violations of the 2007 amended version of Rule 431(b) have no consequence, as it did in Houston for Rule 608(a)(9) violations, and in Glasper for violations of Rule 431(b)’s 1997 version, it can. However, until it does, we are not at liberty to excuse this violation. It is axiomatic in our judicial system that violations of law have consequences, at least in part to deter further violations. In order to give full effect to Rule 431(b) as currently written, I believe we must reverse defendant’s conviction and remand the matter for a new trial that affords the defendant the protections the rule provides.
3. The Nature and Character of the Zehr Principles
In support of its finding, the majority cites the Glasper court’s reliance on its decision in People v. Emerson, 122 Ill. 2d 411, 522 N.E.2d 1109 (1987). 396 Ill. App. 3d at 576. I acknowledge the 1987 holding in Emerson and the significance of the supreme court’s statement in Glasper that in Emerson, it had “moved away from the portion of the Zehr holding which stated that the relevant questions should be covered ‘in the course of interrogation on voir dire,’ and that the failure to ask these questions amounts to ‘prejudicial error,’ ” Glasper, 234 Ill. 2d at 197, quoting Zehr, 103 Ill. 2d at 477-78. I would note, however, that Emerson predates all versions of Rule 431(b), most particularly the 2007 amendment and all of the considerations that prompted the court to change the rule.
The nature and character of the Zehr principles play an integral role in the fairness of our trials and the integrity of our system. The Zehr court described the principles as follows:
“We are of the opinion that essential to the qualification of jurors in a criminal case is that they know that a defendant is presumed innocent, that he is not required to offer any evidence in his own behalf, that he must be proved guilty beyond a reasonable doubt, and that his failure to testify in his own behalf cannot be held against him. If a juror has a prejudice against any of these basic guarantees, an instruction given at the end of the trial will have little curative effect. *** We agree with the appellate court that ‘[e]ach of these questions goes to the heart of a particular bias or prejudice which would deprive defendant of his right to a fair and impartial jury’ [citation], and although they need not have been asked in precisely the form submitted, the subject matter of the questions should have been covered in the course of interrogation on voir dire.” Zehr, 103 Ill. 2d at 477.
The supreme court has thus told us that (1) these four principles are essential to seating a fair and impartial jury and are, therefore, integral to a fair trial in our judicial system; (2) each juror must understand each principle and his or her obligation to follow it throughout the trial; (3) for this reason, ensuring the jurors’ understanding must be undertaken at the beginning of the trial, not at the end of the process; and (4) although no precise form of the questions is required, the subject matter must be covered.
What the Zehr court did not tell us, but what, if we think about it, each of us knows, is that: while these principles are familiar to and understood by those of us within the system, to potential jurors drawn from a pool of persons unfamiliar with trial procedures, they are inherently counterintuitive.
• What do you mean, we have to presume the defendant is innocent? Hasn’t he been investigated, arrested, identified, arraigned, brought here in shackles, and aren’t we here because all of these professionals believe he is guilty? How long does this presumption last? And when do I get to “find” what we already know — that he’s guilty — and go home?
• The State must prove him guilty beyond a reasonable doubt! If they doubted his guilt, he (and we) wouldn’t be here. He should have to prove he didn’t do it, not the other way around.
• What is a reasonable doubt? How does the presumption of innocence apply to how I consider reasonable doubt?
• If your story is true, you want to tell it so everyone will know you are telling the truth. If he won’t get on the stand and tell his story under oath, he must be lying.
To ensure that every juror knows that the very human biases they are influenced by outside the courtroom cannot apply once they get in the jury box, we do what the supreme court has modified Rule 431(b) to require. We tell them what the core rules governing their search for legal truth are, and then we question them and encourage them to question us to ensure their understanding of and their commitment to honoring and complying with those principles.
Without following the strictures of Rule 431(b), we can have no real confidence that we have selected a panel of impartial jurors — men and women who have absorbed and acted within the core principles by which we determine legal guilt. And yet, it is our assumption that the jurors have done so that lies at the heart of the standard of review enunciated by the supreme court in People v. Collins, 214 Ill. 2d 206, 824 N.E.2d 262 (2005). We do not review the jurors’ verdict to assess whether they followed the Zehr principles; rather, we assume they have done so, and thus on review we are required to view their presumed factual findings in the light most favorable to their verdict convicting the defendant. If we cannot be sure that the jurors have understood and followed the Zehr principles, the reviewing courts are only compounding, rather than correcting, any errors.
Our supreme court has told us repeatedly that empaneling a fair and impartial jury is fundamental to the conduct of a fair trial and a fair and just verdict. Both our federal and state constitutions guarantee trial by an impartial jury. U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, §§8, 13. See also People v. Strain, 194 Ill. 2d 467, 475, 742 N.E.2d 315 (2000). I would argue that the supreme court’s prescription for achieving that goal is fundamental, is imperative, is structural, and a failure to follow it is an error so serious that the defendant was denied a substantial right and a fair trial, regardless of the closeness of the evidence. See Herron, 215 Ill. 2d at 179, 830 N.E.2d at 475.
For the foregoing reasons, I would find that the error in this case was plain error, that defendant’s conviction must be vacated, and the case remanded for a new trial. I, therefore, dissent from the majority’s contrary decision.