People v. Runge

JUSTICE BURKE, dissenting:

I respectfully dissent from the majority decision on the juror misconduct issue. The majority concludes that the trial court committed no error in retaining Juror A for the guilt phase of defendant’s trial and finds that the court timely removed Juror A during the sentencing phase. For the reasons below, I do not agree with the first conclusion and would grant defendant a new trial.

On the fifth day of the nine-day guilt phase of defendant’s trial, at the conclusion of the State’s case in chief, Juror B sent a note to the trial judge expressing concerns about Juror A’s conduct, including:

• Juror A cheered loudly in the jury box, saying “yes. Yes, yeah” after the State made some point that disproved a defense theory;

• Juror A checked his cell phone for messages during a break, although the jurors had been instructed not to do so;

• In the jury room that morning, one juror, reviewing her notes from trial, asked whether anyone knew if the term used in testimony was “transferrance” [sic] and Juror A responded in the affirmative; and

• In the jury room that morning, Juror A and at least one other juror were discussing a television show where a mother, her boyfriend, and the babysitter were implicated in the death of a baby, and Juror A “repeated an exact quote” the assistant State’s Attorney had made a few days prior. The quote was, the “only thing worse than committing crimes like these would be to implicate an innocent person.” The jury had been twice instructed to disregard this comment as it had been stricken.

After receiving the note, the trial court interviewed Juror B. The prosecutor and defense counsel were present. Juror B indicated she was “aghast” by Juror A’s cheering and believed this conduct was “horribly inappropriate,” particularly since it occurred at a “monumental point” in the case. Juror B thereafter reiterated that Juror A’s conduct was “really inappropriate.” Juror B was then excused and returned to the jury room.

Following Juror B’s interview, defense counsel requested a mistrial. Counsel noted that the jurors were obviously discussing the case before all the evidence had been presented; in fact, before defendant had even begun to present his case. Defense counsel further noted that Juror A, if his mind had not already been made up, certainly was evincing “acute” prejudice toward the defense through his comments and actions. Counsel requested that the trial court dismiss Juror A. The State, in response, argued there was no evidence to show Juror A’s mind had been made up and described his conduct as, at most, “bad behavior.” The court denied defendant’s motion for a mistrial and declined to rule on his request to dismiss Juror A until a later time. The jurors were returned to the courtroom and admonished not to discuss the case. The court did not question Juror A or any other juror regarding Juror A’s conduct, nor did the trial court ascertain whether each of the jurors could keep an open mind until the case was submitted to him or her.

The next day, during the testimony of a defense expert, Juror A threw his notebook against the jury box wall. At this time, defense counsel renewed his motion to remove Juror A because he had shown contempt for the defense. The trial judge conducted an in camera interview of Juror A. Juror A advised the judge that he was having “some difficulty, but I have my own opinions and things.” Juror A further indicated that many of the jurors were frustrated because they could not write down everything they wanted to. The court then inquired of Juror A:

“THE COURT: Did you formulate any opinion about this case at all, whether or not—

JUROR A: No final opinions because I don’t have all the evidence and facts, yet.

THE COURT: I told earlier [stc], at the beginning of the case, the defendant is presumed to be innocent of the charge against him.

JUROR A: Absolutely.

THE COURT: You still understand that?

JUROR A: Yes, I do.

THE COURT: Do you have any problem being able to follow that rule of law basically?

JUROR A: No, sir. No.

THE COURT: Okay. Do you have any opinions as to whether or not the defendant’s guilty or innocent of the charge against him at the present time?

JUROR A: Not completely, no.

THE COURT: What do you mean by that?

JUROR A: Well, I don’t have all the facts.

* * *

THE COURT: Is there anything about what’s happened with the trial so far that would in any way prevent you from giving either side in this case a fair trial.

JUROR A: No.”

The court dismissed Juror A back to the jury room. Defense counsel again requested that Juror A be excused. The court refused, taking Juror A at his word. The court found that Juror A threw his notes because he was frustrated, which the trial court did not view as unusual. The court did not inquire of any other juror as to how Juror A’s conduct may have affected them. Thereafter, the jury returned guilty verdicts against defendant.

Both the United States and Illinois Constitutions guarantee an accused the right to trial by an impartial jury. U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, §§ 8, 13; People v. Strain, 194 Ill. 2d 467, 475 (2000); see generally G. Braden & R. Cohn, The Illinois Constitution: An Annotated and Comparative Analysis 41 (1969). This right “is so basic that a violation of the right requires a reversal[] (Chapman v. California, 386 U.S. 18 ; Tumey v. Ohio, 273 U.S. 510 , 71 L. Ed. 749 , 47 S. Ct. 437 [ ])” since it “violates even the minimal standards of due process. Turner v. Louisiana, 379 U.S. 466, 471-472 , 13 L. Ed. 2d 424, 428 , 85 S. Ct. 546 .” People v. Cole, 54 Ill. 2d 401, 411 (1973). To be impartial, a juror “should stand indifferent between the parties. *** ‘It is essential that every juryman should be wholly free, even from the suspicion of bias, and be omni exceptione majores [above all exception].’ Dauncey v. Berkeley, cited in 3 Chit. Gen. Prac., 795.” (Emphasis added.) Coughlin v. People, 144 Ill. 140, 163-64 (1893).

The majority acknowledges that a trial by a biased jury deprives a defendant of a fair trial and warrants reversal. Yet, even with the brazen conduct of Juror A, the misconduct of the other jurors in discussing the evidence and stricken comments, and the lack of even minimal inquiry by the trial court to ascertain whether Juror A or the other jurors remained impartial, the majority concludes that the facts support the trial court’s determination to allow Juror A to remain on the jury through the guilt and eligibility stages. I do not agree.

The majority first relies on the fact the trial court examined Juror A during voir dire, at which time Juror A indicated that he could be fair, that he held no strong beliefs about the death penalty, and that he would consider evidence regarding insanity. I disagree that the voir dire questioning can support a finding that the trial court acted properly.

This questioning occurred long before Juror A engaged in misconduct and has no bearing on what ultimately occurred at defendant’s trial. The voir dire conducted prior to trial is irrelevant to whether Juror A formed or began to form an opinion during the trial or later became biased against defendant.

Instructive on this question is People v. Peterson, 15 Ill. App. 3d 110 (1973). In Peterson, after the jury had been sworn, one of the jurors approached defendants’ attorney and stated she “was praying that the defendants will plead guilty” so she could go home. Peterson, 15 Ill. App. 3d at 110 . Defense counsel requested that the court remove the juror. The record discloses there was little discussion of the matter and that the trial court summarily denied defense counsel’s request. Peterson, 15 Ill. App. 3d at 111 . On appeal, the appellate court disagreed with the State’s contention that the juror’s comment “did not warrant any inquiry on the part of the trial judge to determine the juror’s attitude because her impartiality had already been determined during the voir dire.” Peterson, 15 Ill. App. 3d at 111 . Rather, the court concluded that “the remark itself vitiates any previous conclusion made as to impartiality on voir dire, and, without further inquiry, there was no way for the trial court to make a sound judgment on her present state of mind.” Peterson, 15 Ill. App. 3d at 111 .

As in Peterson, Juror A’s misconduct, not only in cheering in the jury box when the State made a point at a “monumental moment,” but also in throwing his notes during the defense expert’s testimony, “vitiates any previous conclusion made as to impartiality on voir dire.” Peterson, 15 Ill. App. 3d at 111 . As such, the majority’s reliance on voir dire questioning is inappropriate in determining whether Juror A remained impartial at defendant’s trial.

The majority further relies on the fact that, during the guilt phase of the trial, the judge repeatedly admonished the jurors not to discuss the case before all the evidence was heard. Again, I do not agree that this action was sufficient. The record firmly establishes these admonishments were ineffective. The jurors did not obey the court’s directives but instead discussed the case and evidence throughout the trial. This included a discussion of transference, a term that related to defendant’s insanity defense — the core issue at trial — and a portion of the testimony that was stricken from the record. Therefore, I cannot agree that the court’s admonitions were sufficient to cure any problem as the majority concludes.

The majority also emphasizes that the determination of juror impartiality rests within the sound discretion of the trial judge: “The applicable standard of review, after the trial judge has made an appropriate inquiry, is an abuse of discretion standard ***.” (Emphasis added.) 234 Ill. 2d at 105. There is no question this is a correct statement of the law. However, I do not believe that the record is sufficient to demonstrate the trial judge in the case sub judice properly exercised his discretion since there is no evidence that he conducted an “appropriate” inquiry.

In United States v. Resko, 3 F.3d 684 (3d Cir. 1993), the Third Circuit emphasized the importance of an adequate record so that a reviewing court would have the means to ascertain the propriety of the trial court’s decision. In Resko, seven days into the nine-day trial, the district court learned that the members of the jury had been discussing the case during recesses and while waiting in the jury room. Resko, 3 F.3d at 687 . Defendant’s attorneys moved to question each juror individually, but the court denied the request. Resko, 3 F.3d at 687 . The court also denied defense counsel’s motion for a mistrial. Resko, 3 F.3d at 688 . Rather, the court summoned the jurors, informed them collectively of the problem, and gave them a two-part written questionnaire. The questionnaire asked the jurors: (1) whether he or she had discussed the facts of the case with one or more of the jurors; and (2) if yes, whether, because of those discussions, he or she had formed an opinion about the guilt or innocence of the defendant. Resko, 3 F.3d at 688 . Each juror responded in the affirmative to the first question and in the negative to the second. The district court investigated no further. Thereafter, the jury returned guilty verdicts against both of the defendants. Resko, 3 F.3d at 688 . On appeal, the Third Circuit found that it simply had an insufficient record upon which to evaluate any potential prejudice to the defendants. The court concluded that “in the circumstances here, in which there is unequivocal proof of jury misconduct discovered mid-trial coupled with a failure by the district court to evaluate the nature of the jury misconduct or the existence of prejudice, *** a new trial is warranted.” Resko, 3 F.3d at 694 .

The Resko court found that the method utilized by the district court was inadequate to fulfill its responsibility of determining whether the defendants suffered any prejudice from the jury’s misconduct. Resko, 3 F.3d at 691 . The court concluded that the district court should have engaged in further inquiry, such as individualized questioning, to determine whether the jurors maintained open minds. Resko, 3 F.3d at 691 . Even though every juror admitted to premature discussions, the district court failed to engage in any additional investigation beyond the cursory questionnaire. Because of this, “there [wa]s no evidence in the record one way or the other regarding prejudice to the defendants.” Resko, 3 F.3d at 690 . Specifically, without further inquiry by the district court, the reviewing court had “no way to know the nature of the jurors’ discussions and whether these discussions in fact resulted in prejudice to the defendants.” Resko, 3 F.3d at 690 . Moreover, “the absence of information and the consequent inability of the district court meaningfully to assess the nature and extent of the jurors’ premature discussions in order to ascertain whether there ha[d] been any prejudice to the defendants create[d] a highly problematic situation.” Resko, 3 F.3d at 690 . The Resko court noted that “[a] trial judge does not possess talismanic powers.” Therefore, in the absence of any effort to evaluate the effect of the juror misconduct, “the judge can only guess as to the existence or non-existence of prejudice.” Resko, 3 F.3d at 694 . Likewise, in the absence of any record, a reviewing court is similarly left to speculate whether the district court acted properly. Resko, 3 F.3d at 694 ; accord United States v. Bertoli, 40 F.3d 1384, 1396 (3d Cir. 1994) (distinguishing Resko on its facts but holding, in reliance on Resko, that a reviewing court must satisfy itself that the trial court engaged in a meaningful assessment of whether there was any prejudice to defendant, and that when a trial court fails to conduct a meaningful assessment, a reviewing court cannot evaluate its conduct and, thus, remand for a new trial is proper).

In United States v. McClinton, 135 F.3d 1178 (7th Cir. 1998), two jurors were overheard by other jurors making potentially racist comments, which also appeared to indicate that at least one of the jurors had prejudged the defendants’ guilt. McClinton, 135 F.3d at 1185 . When one of the defendants moved for a mistrial, the district court questioned each of the jurors individually, asking, “whether they had any personal knowledge of the conversation, heard any other statements of this sort, shared any of these beliefs about African-Americans, or had any bias or prejudice toward African-Americans.” McClinton, 135 F.3d at 1185 . The court further inquired of each juror, whether “the statements influenced the jurors in any way; whether they could keep an open mind about the defendants’ guilt or innocence; and whether they could not be impartial for any reason.” McClinton, 135 F.3d at 1185 . Not only did the district court judge question each juror individually and in detail, she also allowed the attorneys to question the jurors. In the course of this questioning, the district court judge was able to determine which jurors had made inappropriate comments and the exact nature of the comments. McClinton, 135 F.3d at 1185 . After doing so, the court excused one of the jurors and admonished the rest regarding the importance of keeping an open mind. On appeal, the Seventh Circuit noted that “[t]he tool for examining an intrinsic influence like juror bias *** is a voir dire.” McClinton, 135 F.3d at 1186 . The court then held that the district court’s handling of the matter and the decision to question individual jurors was “a reasonable response to a difficult situation” and, therefore, was not an abuse of discretion. McClinton, 135 F.3d at 1188 .

In United States v. Vasquez-Ruiz, 502 F.3d 700 (7th Cir. 2007), the Seventh Circuit was again faced with the problem of juror misconduct. Interpreting McClinton, the Vasquez-Ruiz court noted: “The broader point here [in McClinton’s holding] is that the district court’s actions resulted in the development of a record that enabled both that court and this one to evaluate the degree of prejudice that had developed, and to come to a reasoned conclusion on the question whether the curative steps were adequate.” Vasquez-Ruiz, 502 F.3d at 706 . In Vasquez-Ruiz, however, the court found the record was “too sparse” and lacked information. Therefore, the reviewing court could not conclude there was no prejudice to the defendants from juror misconduct. Vasquez-Ruiz, 502 F.3d at 707 .

The unifying principle in these cases is that, once it is established there has been jury misconduct, the trial court must make an adequate record. In the absence of an adequate record, the reviewing court cannot make an intelligent review of the trial court’s conduct.

Applying these principles to the case at bar, the trial judge should have interviewed Juror A after the court learned that he cheered in the jury box. The majority acknowledges that Juror A’s “cheering” for the prosecution “would have suggested that Juror A had a biased view of the case.” 234 Ill. 2d at 121. Nevertheless, the majority fails to explain, let alone address, why the trial court need not have questioned Juror A at that juncture regarding his “cheering.” In my view, the trial court should have ascertained exactly what Juror A was cheering about and why. Only in this way could the court determine whether Juror A remained impartial or whether he was in fact biased against defendant. Since we have no record from which to conclude that Juror A remained impartial at this time and because his conduct points to the contrary, I would find that the trial court erred when it refused defense counsel’s request that Juror A be dismissed.

I additionally believe that the trial judge also should have inquired of Juror B whether Juror A’s cheering influenced her in any way. This is especially true in light of the fact she admitted to the court she was “aghast” by Juror A’s conduct and believed it “horribly” and “really” inappropriate. Instead of ascertaining the effect Juror A had on Juror B, the trial court simply sent Juror B back to the jury room. Lastly, I believe that when the court received Juror B’s note and became aware of the misconduct of Juror A and others, the judge had a responsibility to inquire of all of the jurors whether Juror A’s misconduct had any effect on their opinions or beliefs in the case.

The trial court failed to engage in any investigation after Juror B reported misconduct by Juror A and other jurors. Thus, the trial court possessed no ability to meaningfully assess the situation. There is simply no way to know whether Juror A’s cheering or the premature discussions of the evidence influenced any of the jurors to the extent that they were no longer impartial. The trial court had no means to evaluate the jurors’ demeanor or credibility in making a finding regarding a historical fact, i.e., whether or not each juror retained an open mind. Accordingly, the record here is entirely inadequate for us to determine whether the trial court properly exercised its discretion.

The facts of the case sub judice are akin to Resko and Vasquez-Ruiz. Here, we have unequivocal proof of juror misconduct, yet the trial judge did nothing to make an adequate record from which it could make a reasoned decision about the jurors’ continued impartiality. Accordingly, we too can only speculate.

It is true that the trial judge did question Juror A following the “note throwing incident.” Regarding this event, the majority states:

“We would observe that Juror A must have realized at th[is] juncture that certain negative answers to the court’s questions would likely have gotten him off the jury and returned him to gainful employment if that was his desire. Yet, he did not follow that course. His diligence in trying to take notes during the defendant’s case seems to confirm his response to the court that he had formed ‘no final opinions. ’ If he had, what would be the point of taking notes?” (Emphasis added.) 234 Ill. 2d at 121-22.

I respectfully submit that the majority is engaging in pure speculation here. One could just as easily conclude that Juror A desired to remain on the jury because he had developed a bias against defendant and wanted to stay on the jury to convict him. It is possible that Juror A took notes in order to better sway the other jurors to his biased view. As the court in Resko stated, “once a juror expresses his or her views in the presence of other jurors, he or she is likely to continue to adhere to that opinion and to pay greater attention to evidence presented that comports with that opinion.” Resko, 3 F.3d at 689 . Moreover, one could also argue that the evidence tends to support this alternative conclusion since the record shows that the jurors were discussing transference and were talking about evidence they were instructed to disregard.

Despite the inadequacy of the record, the majority concludes that there are insufficient facts and circumstances to overturn the trial court’s determination that Juror A was qualified to serve. In support of its conclusion, the majority relies upon United States v. Harris, 908 F.2d 728 (11th Cir. 1990), and Davis v. Woodford, 384 F.3d 628 (9th Cir. 2004).

With respect to Harris, the majority finds:

“We believe Juror B’s report of Juror A’s ‘cheering’ is at least as ambiguous, as to intent and context, as the remark attributed to the juror in Harris. Significantly, Juror B reported that Juror A was ‘cheering out loud vocally’ when ‘the prosecution had made some points.’ If that were true, the parties and the trial judge would have heard it if they were in the courtroom. At one point during her report, Juror B told the trial court, ‘I think you had gone back to have a discussion, maybe came back out. I can’t remember exactly when it was.’ Of course, if the parties and the trial judge were out of the courtroom, the ‘cheering’ could hardly have occurred contemporaneously with ‘a monumental point’ in the prosecution’s cross-examination, as Juror B represented.” (Emphases in original.) 234 Ill. 2d at 123.

Juror A’s “cheering” would not be ambiguous, either in intent or context, if the trial court had simply questioned Juror A about it. Moreover, the majority’s comments regarding the timing of the cheering are again speculative. Had the trial court inquired of Juror A, we would know precisely when the comment was made and whether it was truly a “monumental” point of the State’s case.

Moreover, Harris is not persuasive authority. In Harris, in addition to finding the comment ambiguous, the Eleventh Circuit noted that the district court refused to investigate the juror’s remark because “after several weeks of trial the jurors would naturally begin to form an opinion of the case.” Harris, 908 F.2d at 734 . In finding this to be a valid rationale, the Eleventh Circuit relied upon Grooms v. Wainwright, 610 F.2d 344 (5th Cir. 1980), where the court found no abuse of discretion when the district court denied a motion for a new trial after a juror remarked that “ ‘as far as I’m concerned, [from] what I heard already he’s [the defendant’s] guilty.’ ” Grooms, 610 F.2d at 346 . The Grooms court reasoned that the comment, which was made at the end of the prosecution’s case but before the defense presented any evidence, “does not reflect serious prejudice, but only an objective evaluation of the evidence presented to date in the trial.” Grooms, 610 F.2d at 348 .

The Grooms court cited no authority for this proposition, which is contrary to the principles of jury deliberation and defies common sense. Jurors are not supposed to evaluate evidence and form an opinion on the merits of the case until all the evidence has been heard, they have been properly instructed by the court, and they assemble as a group for deliberation. This is so because, “once a juror expresses his or her views in the presence of other jurors, he or she is likely to continue to adhere to that opinion.” Resko, 3 F.3d at 689 . The Grooms decision is poorly reasoned and, in my view, warrants rejecting Harris as persuasive authority.

I also believe the majority’s reliance on Davis is misplaced. Unlike the case at bar, Davis did not involve any allegation of juror misconduct. Rather, at issue in Davis was whether a juror’s note asking questions about the death penalty indicated juror bias. Davis, 384 F.3d at 652-53 . Accordingly, the Davis court did not engage in any analysis regarding juror misconduct, the relevant question here.

Further, I disagree with the majority’s statement that there was “even less evidence of juror bias” here “than that extant in Davis.” 234 Ill. 2d at 126. In Davis, one juror sent a note to the trial judge and there was no evidence the other jurors were even aware of it. Here, however, we have two instances of misconduct on the part of Juror A, of which other jurors were clearly aware, and instances of misconduct by other jurors as well. Moreover, I do not agree with the majority’s statement that only Juror A’s impartiality was “ever really in question.” 234 Ill. 2d at 126. Again, other jurors engaged in misconduct, yet were never interviewed. It is pure speculation as to whether they remained impartial. Thus, while the majority concludes that it “appears” (234 Ill. 2d at 126) the trial judge acted appropriately, I do not believe the record is sufficient for us to make that determination.

Addressing the question of whether the impartiality of other jurors was adversely affected by Juror A’s misconduct, the majority finds that because Juror B, the foreperson, was “extremely diligent” in reporting Juror A’s improprieties, and her concerns centered only on Juror A, “[i]t is a reasonable inference that she would have reported others had she believed there was a need to do so.” 234 Ill. 2d at 127.

Again, this is pure speculation on the part of the majority. I note that Juror B was hesitant to bring these matters to the attention of the trial judge and that she did not want the other jurors to know she was reporting the misconduct. Thus, one could just as easily conclude that Juror B turned a blind eye to other problems or failed to report them because she was concerned the rest of the jury would perceive her as a “troublemaker.” After all, Juror B stated that Juror A was popular and well-liked on the panel, that he was “really nice,” “very witty,” “very clever,” and “keeps morale going well.” According to Juror B, “everyone really really like[d] [Juror A].”

Moreover, the majority’s speculation assumes Juror B witnessed all instances of misconduct. However, given the length of the trial, Juror B may not have been privy to all misconduct. Similarly, even if Juror B was “diligent,” her diligence was not necessarily shared by the other jurors. Lastly, Juror A was not the only jury member who engaged in some of the misconduct Juror B reported. The other jurors’ misconduct demonstrates that they did not follow the court’s directives and instructions, but rather ignored them and violated them. Therefore, it cannot be presumed from Juror B’s “diligence” that the other jurors remained impartial. In any event, the majority’s speculation and assumption would be unnecessary had the trial court granted defense counsel’s requests and questioned each juror individually.

In support of its conclusion that the trial court’s actions in this case were “appropriate and sufficient” (234 Ill. 2d at 129), the majority comments that courts tend to “minimize the impact that one juror’s views may have on others.” 234 Ill. 2d at 129. The majority relies on United States v. Yeje-Cabrera, 430 F.3d 1 (1st Cir. 2005), and United States v. Paneras, 222 F.3d 406 (7th Cir. 2000), to support this rationale. Neither case is persuasive here.

In Yeje-Cabrera, a juror sent a note to the district court judge stating her belief that the defendants should be cross-examined. There was no evidence she expressed this view to other jurors or that they were aware of the note. Thereafter, the district court strongly admonished the jurors regarding the burden of proof and the fact they were not to discuss the case. The court further instructed the jurors that if each could not follow these instructions, he or she was to speak to the clerk. The court then polled the jury as a whole, asking for a show of hands as to whether any had discussed the case. No hands were raised. Thereafter, the only juror to contact the clerk and court was the sender of the note, who was dismissed. Importantly, there was no contact between the sender of the note and the rest of the members of the jury between the time the jury panel was admonished and the sender of the note was dismissed.

Yeje-Cabrera is clearly distinguishable from the case at bar. First, the note in Yeje-Cabrera did not demonstrate bias, while Juror A’s conduct in this case did. Moreover, unlike Yeje-Cabrera, there is no question in this case that other jurors were exposed to and were aware of Juror A’s conduct. Further, in Yeje-Cabrera the court observed that, “[e]ven if the one juror had communicated her views to the other jurors, there is also no reason to think those jurors were dissuaded from following the instructions of the judge.” Yeje-Cabrera, 430 F.3d at 11 . Here, in contrast, the record clearly discloses that other jurors did not follow the court’s instructions or directives. Finally, and perhaps most important, unlike Yeje-Cabrera, the jurors in this case were not admonished following the cheering incident or the note-throwing incident in any manner, let alone told that if they had any sort of problem, they should contact the clerk or the court. Thus, Yeje-Cabrera simply does not support the conclusion that the trial judge did not err in this case.

Paneras is similarly inapposite. In Paneras, the juror, a professional artist, drew a humorous depiction of the defendant’s acts as described during the trial. The district court found that the conduct was “fairly benign.” Paneras, 222 F.3d at 411 . Here, in contrast, Juror A’s conduct in cheering and throwing his notes in the jury box during the course of trial cannot, in any sense, be described as “benign.” Moreover, the challenged conduct in Paneras occurred during jury deliberation, the time when the jurors should be discussing the case, expressing their views, and reaching a decision. In this case, the conduct occurred during the course of defendant’s trial, when jurors should not express any views or have formed any opinion. Accordingly, Paneras does not support a finding that the trial court’s inaction in this case was appropriate.

The majority further relies on the collective questioning of jurors, and the trial court’s reminder to them that they were not to arrive at any conclusions before all the evidence was heard. When asked whether they could still comply with this directive, the jury responded in the affirmative. The majority states, “We have no reason to believe that they lied to the trial court when they made this affirmation,” and concludes that “under the circumstances, we cannot say that the trial court erred in not conducting a more extensive inquiry or questioning jurors individually before proceeding.” 234 Ill. 2d at 131.

I find this reasoning to be faulty. First and most importantly, this questioning occurred during the sentencing phase, not during the trial. During the guilt phase, the trial court never inquired collectively, let alone individually, as to whether the jurors could comply with this directive or whether they remained impartial. Whether the jurors could comply with this directive at sentencing, after already convicting defendant, is irrelevant to whether they remained impartial during the guilt phase.

Moreover, through this collective admonishment, the circuit court allowed the jurors to decide their own impartiality. This is improper. “It has been held that jurors themselves are incapable of knowing the effect which prejudicial matters might have upon their unconscious minds.” People v. Hryciuk, 5 Ill. 2d 176, 184 (1954). Again, I do not believe reliance on this belated collective questioning is appropriate to support a finding that the trial court acted properly.

The majority acknowledges that a trial judge has a duty under the law to be “ ‘ever watchful to prevent prejudicial occurrences and to determine the effect of such occurrences when they happen.’ ” 234 Ill. 2d at 103, quoting Smith v. Phillips, 455 U.S. 209, 217 , 71 L. Ed. 2d 78, 86 , 102 S. Ct. 940, 946 (1982). This is particularly true in a capital case. See People v. Thompson, 222 Ill. 2d 1, 35 (2006) (because of the seriousness of a capital case, the record should be subject to “intense scrutiny”). See also Baze v. Rees, 553 U.S. 35, 84 , 170 L. Ed. 2d 420, 453 , 128 S. Ct. 1520, 1550 (2008) (Stevens, J., concurring) (“risk of error in capital cases may be greater than in other cases because the facts are often so disturbing”).

Yet here, where there was obvious misconduct by Juror A and other jurors in a capital case, the trial judge did nothing to determine what effect Juror A’s misconduct had on the other jurors, nor did it ascertain whether all the jurors remained impartial during the guilt phase. It is the failure to inquire, in my mind, that constitutes reversible error and warrants a new trial. I do not agree with the majority’s conclusion that “defendant received ‘precisely what due process required: a fair trial before an impartial and properly instructed jury.’ ” 234 Ill. 2d at 131, quoting Rivera v. Illinois, 556 U.S. at 162, 173 L. Ed. 2d at 331-32, 129 S. Ct. at 1456. Because of the trial judge’s failure to question the members of the jury, there are insufficient facts from which to make this determination.

I recognize that the crimes at issue here, described in lengthy detail by the majority, were horrific. But it is precisely these types of cases that test our commitment to the principle of law. We must not allow ourselves to be swayed by emotion. Given Illinois’ past history with capital cases, the majority’s opinion sends the wrong message about how these cases will be treated in Illinois.

Because I believe defendant is entitled to a new trial, I need not address, or render any findings, regarding the misconduct that occurred during the sentencing phase and whether the trial court timely dismissed Juror A.

JUSTICES FREEMAN and KILBRIDE join in this dissent.