People v. Albanese

JUSTICE SIMON, concurring in part and dissenting in

part:

I concur in the majority’s judgment that the State has proved beyond a reasonable doubt “that Charles Albanese plotted and carried out the murder of his own family members for financial gain.” (102 Ill. 2d at 83.) I dissent, however, from the majority’s decision to affirm the sentence of death. I believe that the comments on the sentencing process contained in the juror handbook and the prosecution’s reliance on the defendant’s lack of remorse as an aggravating factor were both reversible error; and I would reverse the death sentence and remand for a new sentencing hearing.

The Death Sentence Violated the Eighth Amendment Because the Incorrect Information Contained in the Juror’s Handbook Resulted in an Inattentive, Misinformed Jury at the Defendant’s Sentencing Hearing.

The United States Supreme Court “has recognized that the qualitative difference of death from all other punishments requires a correspondingly greater degree of scrutiny of the capital sentencing determination. In ensuring that the death penalty is not meted out arbitrarily or capriciously, the Court’s principal concern has been more with the procedure by which the State imposes the death sentence than with the substantive factors the state lays before the jury as a basis for imposing death, once it has been determined that the defendant falls within the category of persons eligible for the death penally.” (California v. Ramos (1983), 463 U.S. 463 , 992, 77 L. Ed. 2d 1171, 1179 , 103 S. Ct. 3446, 3451 .) The court has required that the States adopt standards and procedures that channel jury discretion and offer guidance to the jury on the factors that the State considers relevant to the decision of whether a defendant shall live or die.

Any practice that diverts the jury’s attention from its principal role in the death sentencing process undermines the entire system of procedural and substantive protections established by the Constitution. Even if constitutional, such practices are bad policy and should not be condoned by this court. Cf State v. Jones (1979), 296 N.C. 495, 501 , 251 S.E.2d 425, 429 (a prosecutor’s comments on appellate review and the executive’s power to commute the death penalty are improper because they reduce the jury’s sense of responsibility in the sentencing hearing); see also Farris v. State (Tenn. 1976), 535 S.W.2d 608, 614 ; People v. Morse (1964), 60 Cal. 2d 631, 652-53 , 388 P.2d 33, 46-47 , 36 Cal. Rptr. 201, 214-15 ; Fleming v. State (1977), 240 Ga. 142, 146 , 240 S.E.2d 37, 40 .

In this case the jury was mistakenly informed that it “must not be concerned with what penalty may be imposed if the defendant is found guilty. The law requires that the judge sentence the defendant.” (102 Ill. 2d at 78.) These comments were contained in a pamphlet entitled, “Handbook for Illinois Jurors,” which was distributed to all jurors who served at the defendant’s trial.

The majority contends that “[t]he defendant’s argument that the jury was inattentive as a result of the handbook’s distribution is pure conjecture.” (102 Ill. 2d at 79.) This contention glosses over the sworn statement of the foreman of the jury who said:

“That as a result of the dissemination of this information, the consensus of the jury was that they would not have to determine whether the death penalty should be imposed on the defendant and it was not until they were instructed after the sentencing hearing that they realized that this was to be their responsibility, which surprised most or all of the jurors.” (Emphasis added.)

The foreman’s uncontradicted statement establishes that most of the jurors had read the statement on the jury’s lack of responsibility for sentencing and that they had believed it.

Knowing this, it defies human experience to assume that the jury was as attentive at the sentencing hearing as it would have been if it had not been misinformed. Counsel’s comments in closing arguments on the attentiveness of the jury reflect nothing more than traditional courtship of the jurors. The brief verbal questions in voir dire on the jurors’ attitudes towards the death penalty did not put them on notice as to their responsibilities and surely were not considered as carefully by the jurors as the written handbook that they could refer to at any time during the trial or the sentencing hearing.

The majority correctly observes that this court has approved of the concept of a juror’s handbook (People v. Izzo (1958), 14 Ill. 2d 203, 209 ), even though the handbook may contain “minimal inaccuracies” which do not prejudice the defendant. Prior to this case, however, this court has never held it permissible for the State to convey substantively inaccurate information to the jury by such devices. Surely this court would reverse the imposition of the death penalty if the judge had instructed the jury that they need not pay close attention to the evidence presented at the death penalty proceeding. I can conceive of no reason why the State’s role in misleading the jury should not have the same result here.

The Prosecution’s Reliance on the Defendant’s Decision Not to Confess at the Sentencing Hearing as an Aggravating Factor in the Sentencing Decision Violated Illinois Law.

The defendant elected not to testify at the sentencing hearing even though he had previously testified during the trial and asserted his innocence. In closing arguments at the sentencing hearing the prosecutor emphasized the defendant’s continued reliance on his plea of not guilty as a reason for imposing the death penalty:

“ ‘He denies his guilt. You’ve seen no repentance. I think repentance is the first step towards rehabilitation, an acknowledgment of guilt. I’m sorry. He denies that. Can this person be rehabilitated. I would submit to you No.’ ” (102 Ill. 2d at 80.)

This statement was improper under Illinois law and warrants a new sentencing hearing.

The Illinois Supreme Court does not require attorneys seeking reinstatement after disbarment to admit their guilt of the crimes that were the basis for their disbarment. (See In re Wigoda (1979), 77 Ill. 2d 154, 159-61 ; In re Kuta (1981), 86 Ill. 2d 154, 161 .) This rule is based on the view that “[s]imple fairness and fundamental justice demand that the person who believes he is innocent though convicted should not be required to confess guilt to a criminal act he honestly believes he did not commit” (In re Hiss (1975), 368 Mass. 447, 458 , 333 N.E.2d 429, 437 ); otherwise, honest persons, professing their innocence, may receive greater punishment than perjurers who admit to a crime that they did not commit.

There is stronger reason for applying the same principles in the case of a criminal defendant instead of compelling him to confess at a sentencing hearing or to suffer the accusation of a lack of remorse, especially where the sentencing hearing is about life or death. Our criminal justice system cannot ignore that a jury’s determination of guilt is not infallible and that defendants convicted long ago have on many occasions been exonerated on a showing that they were the victims of unjust accusation. If anything, we should take even greater precautions in the criminal context to avoid jeopardizing the defendant’s privilege against self-incrimination. Cf. Pope v. State (Fla. 1983), 441 So. 2d 1073, 1078 (“We have held that lack of remorse is not an aggravating factor ***. [R]emorse is an active emotion and its absence, therefore, can be measured or inferred only from negative evidence. This invites the sort of mistake which occurred in the case now before us — inferring lack of remorse from the exercise of constitutional rights. *** Any convincing evidence of remorse may properly be considered in mitigation of the sentence, but absence of remorse should not be weighed either as an aggravating factor nor as an enhancement of an aggravating factor”).