dissenting:
A little over three months ago, this court strongly assured that, if facts demonstrate that a defendant has been tried by a biased jury, it “ ‘would not hesitate to reverse defendant’s conviction, as a trial before a biased jury would constitute structural error.’ ” People v. Thompson, 238 Ill. 2d 598, 610 (2010) (quoting People v. Glasper, 234 Ill. 2d 173, 200-01 (2009)). The indisputable facts of this case demonstrate that the jury that decided defendant’s case included a biased juror. The juror in question made it clear during voir dire that he believed sex offenders like defendant should be locked up for life. This same juror also unequivocally stated that he could not be fair in cases involving sex offenders, like defendant. And yet, the court does not hesitate to affirm this conviction. Because this juror’s presence on the jury violated defendant’s right to an impartial jury, a new trial is required. I therefore dissent.
The sixth amendment guarantees the right to an impartial jury to all persons accused of crimes, and the fourteenth amendment extends this guarantee to defendants tried in state courts. Duncan v. Louisiana, 391 U.S. 145, 149 (1968). Apart from granting the right to an impartial jury trial, the sixth amendment further entitles every criminal defendant to effective legal counsel. Defendant contends that it was his counsel’s ineffectiveness that prevented him from receiving the impartial jury to which he was entitled under the constitution.
In Strickland v. Washington, 466 U.S. 668 (1984), the United States Supreme Court set forth a two-part test for analyzing claims of ineffective assistance of counsel. See also People v. Albanese, 104 Ill. 2d 504 (1984) (adopting Strickland test in Illinois). In order to show counsel was ineffective for failing to object to the presence of certain persons on the jury, defendant must prove “counsel’s representation fell below an objective standard of reasonableness.” (Emphasis added.) Kimmelman v. Morrison, 477 U.S. 365, 375 (1986). In addition, defendant must show counsel’s deficient performance prejudiced the defense. “This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Strickland, 466 U.S. at 687. Because a defendant must satisfy both components of the Strickland test, the failure to establish either is fatal to the claim. Id.
Performance Prong
The court resolves defendant’s claim solely on the basis of his failure to establish deficient performance, holding that the juror in question was not biased and that, in light of the entire voir dire, “it is possible that defendant’s trial counsel decided that [the juror] was not unequivocally biased.” 241 Ill. 2d at 335. The court further concludes that because attorneys consider many factors in making their decisions about which jurors to challenge and which to accept, counsel’s decision in this case “is part of trial strategy.” Id. As such, his decision is generally not subject to challenge under Strickland, which means that this court “should hesitate to second-guess” the decision. Id. I disagree with this analysis because it transforms the deference afforded counsel’s decision into nothing more than a judicial rubberstamp of counsel’s actions. While courts should, of course, be wary of second-guessing counsel’s action, that hesitancy does not mean turning a blind eye to deficiencies in performance that render the resulting trial constitutionally flawed.
It goes without saying that “[a]mong the most essential responsibilities of defense counsel is to protect his client’s constitutional right to a fair and impartial jury by using voir dire to identify and ferret out jurors who are biased against the defense.” Miller v. Francis, 269 F.3d 609, 615 (6th Cir. 2001); see United States v. Blount, 479 F.2d 650, 651 (6th Cir. 1973) (“The primary purpose of the voir dire of jurors is to make possible the empanel-ling of an impartial jury through questions that permit the intelligent exercise of challenges by counsel.”); see also Rosales-Lopez v. United States, 451 U.S. 182, 188 (1981) (acknowledging that voir dire “plays a critical function in assuring the criminal defendant that his Sixth Amendment right to an impartial jury will be honored”). Under Strickland, defense counsel, however, is granted deference when conducting voir dire. Hughes v. United States, 258 F.3d 453, 457 (6th Cir. 2001). “An attorney’s actions during voir dire are considered to be matters of trial strategy. [Citation.] A strategic decision cannot be the basis for a claim of ineffective assistance unless counsel’s decision is shown to be so ill-chosen that it permeates the entire trial with obvious unfairness.” Id. Despite this strong presumption that counsel’s decisions are based on sound trial strategy, it is insufficient for counsel to simply articulate a reason for an omission or act alleged to constitute ineffective assistance of counsel. “The trial strategy itself must be objectively reasonable.” Miller 269 F.3d at 616.
Because defendant’s claim for ineffective assistance of counsel is based on his trial counsel’s failure to strike a biased juror, defendant must show that the juror was actually biased against him. Hughes, 258 F.3d at 458 (quoting Goeders v. Hundley, 59 F.3d 73, 75 (8th Cir. 1995), citing Smith v. Phillips, 455 U.S. 209, 215 (1982)). Generally, a juror’s “express doubt as to her own impartiality on voir dire does not necessarily entail a finding of actual bias,” and the United States Supreme Court has routinely “upheld the impaneling of jurors who had doubted, or disclaimed outright, their own impartiality on voir dire.” Id. (analyzing cases). What makes this case different from those cases where the empaneling of jurors who have indicated bias have been upheld is that, in such cases, the challenged jurors gave some subsequent reassurance of impartiality or were sufficiently rehabilitated by counsel with follow-up questions. See Miller v. Francis, 269 F.3d 609 (6th Cir. 2001). However, a different result obtains when follow-up questioning does not result in either a reassurance of impartiality or rehabilitation.
Hughes v. United States, 258 F.3d 453 (6th Cir. 2001), illustrates these principles. There, the defendant was tried for theft of government property. During voir dire, a juror indicated that because of her family ties with law enforcement officers, she “did not think” she “could be fair.” Hughes, 258 F.3d at 455. The trial judge replied “You don’t think you could be fair?” to which the juror simply responded, “No.” Hughes, 258 F.3d at 456. The court of appeals held that counsel’s failure to strike the juror constituted ineffective assistance of counsel. Actual bias was present because there was no follow-up to the juror’s statement that she “could not be fair.” According to the court, when left with only a statement of partiality without a subsequent assurance of impartiality or rehabilitation through follow-up questions, juror bias can always be presumed from such unequivocal statements. Hughes, 258 F.3d at 460.
The federal courts have spoken at length about jurors’ phrases such as “I think I can be fair,” noting that such statements “are not necessarily construed as equivocation.” Miller v. Webb, 385 F3d 666, 675 (6th Cir. 2004). In Miller v. Webb, for example, the court acknowledged “venire members commonly couch their responses to questions concerning bias in terms of T think.’ Therefore, the use of such language cannot necessarily be construed as equivocation. [Citation.] For a juror to say, T think I could be fair, but ...,’ without more, however, must be construed as a statement of equivocation. It is essential that a juror swear that [she] could set aside any opinion [she] might hold and decide the case on the evidence.” (Internal quotation marks omitted.) Miller, 385 F.3d at 675. Thus, when a juror makes a statement that she “thinks she can be fair,” but immediately qualifies it with a statement of partiality, courts presume actual bias because proper juror rehabilitation and juror assurances of impartiality are absent. Miller, 385 F.3d at 675. This is so because courts have recognized that the sixth amendment guarantees the right to a jury that will hear the case impartially, not one that “tentatively promises to try.” Wolfe v. Brigano, 232 F.3d 499, 502-03 (6th Cir. 2000).
The Seventh Circuit has also acknowledged the problems inherent with juror statements regarding the ability to be fair. In Thompson v. Altheimer & Gray, 248 F.3d 621 (7th Cir. 2001), the court held that a trial judge committed error by failing to strike for cause a juror whose responses to voir dire questioning manifested a degree of bias. The juror stated the following during voir dire questioning: “I think I bring a lot of background to this case, and I can’t say that it’s not going to cloud my judgment. I can try to be as fair as I can, as I do every day.” Id. at 624. The trial judge in reviewing the statements noted that the juror “said she would try to be fair, but *** expressed no confidence in being able to succeed in the attempt.” (Emphasis omitted.) Id. at 626. Judge Posner, writing for the court, which was unanimous on this issue, noted that if the juror had “said she could not be fair, the judge would of course have had to strike her for cause.” (Emphasis in original.) Id.
Challenges for cause are subject to approval by the trial court, and the court must excuse a prospective juror if actual bias is discovered during voir dire. As the foregoing discussion makes clear, notwithstanding the general deference given to trial counsel’s strategic decisions, courts will find deficient performance under Strickland if an impaneled juror’s honest responses to questions on voir dire would have given rise to a valid challenge for cause.
The court today does not acknowledge any of the foregoing principles and does not review the voir dire in light of them. The voir dire at issue in this case began with the judge asking general questions about the juror’s ability to be fair. At this point, there had been no mention of registered sex offenders, but that changed once defense counsel brought up the subject of fairness to registered sex offenders to the juror:
“[Defense counsel]: I will ask a question that seems to be getting concern here. If you are aware of somebody who is a registered sex offender, how do you feel about that?
A. Feel should be locked up for life.
Q. Locked up for life. What if the law permitted that he not be locked up for life or she not be locked up for life? Do you still think that should be the case? Do you think you would be able to listen to a case and render a judgment on a case that’s separate and distinct from the sex offender case?
A. Yes.
Q. Even though that person may have that background?
A. Yes.
Q. Is that background going to influence you at all do you believe in your decision in this case?
A. I don’t think so.
Q. You don’t think so?
A. No.
Q. Can you be more specific? Can you say that it’s not going to?
A. No.
Q. You cannot?
A. No. I said it’s not going to change. I cannot be fair with the case.
Q. You can be fair or you cannot?
A. No, I cannot he fair.
Q. You can be fair?
A. No, I cannot be fair. I could not be fair also.”
It is clear that once the juror stated that sex offenders should “be locked up for life,” defense counsel attempted to rehabilitate the juror in the manner set forth in the cases I discussed earlier. The problem, though, is that the juror was not amenable to rehabilitation. Indeed, the juror’s response of “yes” to defense’s counsel’s ambiguous and compound questions cannot be read as an affirmative statement of impartiality because it is difficult to tell to which part of the compound questions he was responding. The most that could be said of that exchange is that it is ambiguous. Then, when the juror stated that he “didn’t think” a sex offender background would influence him, defense counsel properly attempted to rehabilitate the juror by having him state affirmatively whether he could or could not be fair. The more defense counsel attempted to do this, the more the juror became unequivocal, repeating four times that he “cannot be fair.” As the Sixth Circuit pointed out in Miller, when a juror, such as the one here, makes a statement indicating that he thinks he can be fair, but then immediately qualifies it with a statement of partiality, courts may presume actual bias due to the absence of proper rehabilitation and assurances of impartiality. Miller, 385 F.3d at 675. Once the juror here continued to state that he could not be fair, it amounted to an express and unrebutted admission of bias. In other words, there was an absence of an affirmative and believable statement that this juror could set aside his opinion of sex offenders and decide the case on the evidence and in accordance with the law. This juror was unable to “swear that [he] could set aside any opinion [he] might hold and decide the case on the evidence.” Id.
Defendant’s reliance on this latter portion of the voir dire does not “skew[ ]” the analysis of whether counsel was ineffective, as the court today suggests. 241 Ill. 2d at 334. Rather, it affirmatively demonstrates that, in response to follow-up questioning, the juror could not state for the record that he could be fair, but rather insisted that he could not be fair. Thus, I have no trouble concluding that this juror was actually biased against defendant. I therefore strongly disagree with the court’s conclusion that the juror was not even biased to begin with, an incredible holding in light of the transcript. Id. at 337.
The court also states that because defendant’s status as a sex offender was important to the defense’s theory of the case, counsel’s “strategic” decision to seat him is “virtually unchallengeable.” Id. at 329. What this strategy was with respect to this juror is never explained by the court and for good reason: having a juror who has stated that (1) he cannot be fair toward sex offenders and (2) sex offenders should be locked up forever cannot objectively be considered reasonable trial strategy in a case involving a sex offender. In light of his statements, the juror could not have given any credence to the defense’s theory. Indeed, according to this juror, defendant should not have even been walking the streets in the first place due to his prior sex offense conviction. “Virtually unchallengeable” does not mean that a court of review must suspend all disbelief. Rather, the reviewing court must be able to identify an “objectively” reasonable strategy (Miller, 269 F.3d at 616), a fact acknowledged by the Chief Justice in his special concurrence. See 241 Ill. 2d at 340 (Kilbride, C.J., specially concurring) (noting his disagreement with the court’s “analysis of the performance prong”). The cases I cited earlier in this opinion amply demonstrate that Strickland’s deferential review of trial strategy does not require courts of review to accept without question that this was “reasonable” trial “strategy.” I would therefore hold that counsel’s failure to strike the juror constituted deficient performance under Strickland.
Prejudice Prong
This court, in both Glasper and Thompson, recognized that a trial before a biased juror would constitute structural error. “[Structural defects in the constitution of the trial mechanism *** defy analysis by ‘harmless-error’ standards.” Arizona v. Fulminante, 499 U.S. 279, 309-10 (1991). The presence of a biased juror is no less a fundamental structural defect than the presence of a biased judge. Id. As the Eighth Circuit explained in Johnson v. Armontrout:
“Trying a defendant before a biased jury is akin to providing him no trial at all. It constitutes a fundamental defect in the trial mechanism itself. As the district court noted:
‘A defendant charged with a crime is entitled to an unbiased jury and is entitled to a presumption of innocence until such time as he is proven guilty beyond a reasonable doubt. Where you have jurors who before they have heard any evidence are convinced that the defendant is guilty [they are] clearly biased against the defendant. [This] denies the defendant the presumption of innocence and denies him a fair trial. Are only the innocent entitled to an unbiased jury or does the right of due process also entitle the guilty to an impartial trial? This court is of the opinion that both the innocent and the guilty are entitled to start a trial without any member of the jury convinced of the defendant’s guilt.’
Johnson v. Armontrout, No. 90 — 3426—CV—S—2, slip op. at 7 (WD. Mo. June 18,1991). We agree that, in the absence of a strategic motive, a defendant whose attorney fails to attempt to remove biased persons from a jury panel is prejudiced.” Johnson v. Armontrout, 961 F.2d 748, 755 (8th Cir. 1992).
Essentially, Armontrout and the other federal cases like it, including those cited by defendant, view the resulting trial in instances where a biased juror has been impaneled as unreliable. It is unreliable because attempting to weigh this type of error against notions such as the weight of the evidence or the strength of the State’s case cannot be done. Why? Because a biased juror is simply not open to weighing credibility or assessing fairly the competing theories of the case. Jury instructions that explain legal concepts such as credibility determinations and burdens of proof are of no moment to the biased juror. Stated simply, the biased juror does not care at all about the relative strengths and weaknesses of the parties’ evidence and pays no heed to jury instructions. As a result, all the factors that normally work to present a court of review with a “reliable” verdict on appeal are absent when a biased juror sits on a jury. The prejudice prong of Strickland recognizes as much — prejudice is established upon a “showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Strickland, 466 U.S. at 687.
Our decision in People v. Metcalfe, 202 Ill. 2d 544, 562 (2002), did not discuss the reliability aspect of the Strickland analysis. Defendant’s argument, incorrectly characterized by the court as one that seeks the overruling of Metcalfe (241 Ill. 2d at 329), merely asks this court to further clarify the prejudice prong in cases regarding the impaneling of a biased juror, as the federal courts have done. We need not overrule Metcalfe to do that, and it is unfair for the court today to suggest otherwise.1
In any event, it appears that a majority of this court adheres to the view that even if a biased juror sits on the jury, a defendant must nevertheless show a reasonable probability that the result of the proceeding would have been different. See 241 Ill. 2d at 327; see also id. at 339 (Kilbride, C.J., specially concurring). That viewpoint is incompatible with the United States Supreme Court’s pronouncement that the participation of such a juror in a trial renders it unreliable and necessitates that the conviction be reversed. United States v. Martinez-Salazar, 528 U.S. 304, 316 (2000). It is this unreliability that satisfies the prejudice prong of Strickland. As the Supreme Court pointed out, the assessment of prejudice articulated in Strickland “proceed[s] on the assumption that the decisionmaker is reasonably, conscientiously, and impartially applying the standards that govern the decision.” Strickland, 466 U.S. at 695. Obviously, a biased juror cannot “impartially” apply the standards that govern the decision, and that is the prejudice that defendant has suffered. In this case, although defendant was constitutionally entitled to 12 impartial jurors, his attorney’s conduct resulted in defendant receiving only 11 impartial jurors. See Parker v. Gladden, 385 U.S. 363, 366 (1966) (per curiam) (noting, defendant is “entitled to be tried by 12, not 9 or even 10, impartial and unprejudiced jurors”). The Supreme Court specifically warned against the mechanical applications of the standards announced in Strickland:
“A number of practical considerations are important for the application of the standards we have outlined. Most important, in adjudicating a claim of actual ineffectiveness of counsel, a court should keep in mind that the principles we have stated do not establish mechanical rules. Although those principles should guide the process of decision, the ultimate focus of inquiry must be on the fundamental fairness of the proceeding whose result is being challenged. In every case, the court should be concerned with whether, despite the strong presumption of reliability, the result of the particular proceeding is unreliable because of a breakdown in the adversarial process that our system counts on to produce just results.” Strickland, 466 U.S. at 696.
The right to a trial before an impartial jury is the core principle of the American criminal justice system. The court’s decision today leaves the unsettling impression that this most sacrosanct of rights is not being fully honored.
JUSTICE BURKE joins in this dissent.
Why the court even reaches the question of whether Metcalfe should be overruled is never explained. The court holds that defendant has not satisfied the deficiency prong of Strickland. As noted earlier, the failure to establish either prong is fatal to an ineffectiveness claim. If counsel’s decision to seat a juror the court believes was not even biased was objectively reasonable, then it need not speak to the issue of prejudice at all and its discussion of Cronic and Metcalfe is purely advisory. This court does not render advisory opinions. See Lebron v. Gottlieb Memorial Hospital, 237 Ill. 2d 217, 266 (2010) (Karmeier, J., concurring in part and dissenting in part, joined by Garman, J.). Justice Karmeier’s special concurrence illustrates my point.