People v. Jones

JUSTICE SIMON, concurring in part and dissenting in part:

I do not agree that the defendant was given a fair sentencing hearing by a jury free from undue influence by the trial judge. A transcript of the proceedings in which Jones entered his guilty plea was read to the sentencing jury as a part of the evidence. The jury heard that the trial judge told Jones when the guilty plea was received “if certain factors are present, you could be sentenced to death ***. Did he [defendant’s attorney] tell you that if the factors which are necessary and which are present and which I will read to you are present, I wouldn’t hesitate to sentence you to death.” Also read to the jury was the trial judge’s later statement, “I have to take into consideration our society, which has been neglected for too long by crimes of violence. And from what the facts appear to be here, these are senseless killings.”

What the trial judge meant by these statements is not clear. When he spoke of the factors “which are present” was it simply a slip of the tongue? Did he mean to say that if certain necessary factors which he would read to the defendant were present, he would sentence the defendant to death, or was he actually expressing his opinion that the factors were present? When he said he would not hesitate to sentence the defendant to death did he intend to indicate that he believed such a sentence was appropriate in this case or was he merely expressing his willingness to follow the law which he believed gave him no discretion? When he said the killings were senseless did he mean they were more deserving of the death penalty than other triple murders, or that all murders were senseless in his eyes?

The risk that the jurors interpreted the trial judge’s words to mean that he thought the death sentence was appropriate for Jones is too great. I believe that, in spite of the cautionary instruction given by the judge at the close of trial telling the jurors that nothing he said should be construed as expressing his opinion, some of the jurors may well have interpreted his comments as partisan.

The majority agrees that an expression of opinion by a judge must not be allowed to influence a jury. (See People v. Finn (1959), 17 Ill. 2d 614, 617 ; People v. Coli (1954), 2 Ill. 2d 186, 189 ; Marzen v. People (1898), 173 Ill. 43, 57-59 .) A judge at a jury trial is not merely a moderator. The jury looks to him for guidance and wisdom. They depend upon his knowledge of the law and experience. As such, they are apt to be impressed by his every word. (Bollenbach v. United States (1946), 326 U.S. 607 , 90 L. Ed. 350 , 66 S. Ct. 402 .) In this case the manner in which the jurors might have construed the trial judge’s remarks cast him in the role of an additional prosecutor. (See Wong Yang Sung v. McGrath (1950), 339 U. S. 33 , 94 L. Ed. 616 , 70 S. Ct. 445 , modified on other grounds (1950), 339 U.S. 908 , 94 L. Ed. 1336 , 70 S. Ct. 564 ; Ruiz v. Delgado (1st Cir. 1966), 359 F.2d 718 .) I believe it was a serious error to allow the jury to hear the judge’s remarks quoted above.

I also believe, even from the cold record, that the jury could have gained the impression that the trial judge was impatient with the defendant and therefore become prejudiced against the defendant himself for delaying the disposition of the case. I refer here to the trial judge’s remarks, set forth in the majority opinion, when a juror asked the judge why he did not know if the defendant was 18 and also the court’s direction to “get instructions for this stage of the game.” Both of these comments are set forth in the court’s opinion. Both remarks could have left the jury with the impression that the defendant was taking positions that caused the State to introduce matters over which there should have been no controversy and thus might have resulted in the jury being biased against the defendant.

I am also concerned about this court’s failure to deal adequately with the defendant’s argument that some members of the jury might have understood the judge to say that the burden of proof is on the defendant to prove that mitigating factors exist. The judge advised prospective jurors, “you go out and determine whether or not this evidence has taken away the factors, mitigated the factors so that you might say no, we don’t want to vote for the death penalty.” The defendant contends the jurors may have interpreted this to mean that the burden was on him. The majority points out that at other stages in the proceeding, it was made clear that a unanimous verdict must be reached before a death penalty can be imposed, and thus no harm occurred. The issue here, however, is not how many persons must agree, but what they agree to. Must the jury unanimously agree that beyond a reasonable doubt no sufficient mitigating factor exists, or that more likely than not no sufficient mitigating factor exists or that the defendant has failed to show that such mitigating factors exist? The jury does not know and neither do I. Unanimity, however, has nothing to do with the question.

For the above reasons I would vacate the defendant’s sentence of death and remand for a new sentencing hearing.