Defendant's right to a bench trial

Does the constitutional guarantee of a trial by jury imply that a defendant has an absolute right to waive such a trial and, in effect, to demand a bench trial? Yes, said the Illinois Supreme Court's decision filed December 21. It declared invalid a portion of the Method of Trial section of the Code of Criminal Procedure (see Illinois Revised Statutes, 1986 Supp., ch. 38, sec. 115-1). Presumably it also invalidates the amendment made by Public Act 84-1428 (effective July 1, 1987; see Ill. Rev. Stat., 1987, ch. 38, sec. 115-1).

The earlier statute required both defendant and prosecutor to agree to a waiver of jury trial in cases charging violation of the Controlled Substances Act. The amendment extended the rule to other felonies. Legal scholars suggest that this was reaction to Greylord — a feeling on the part of prosecutors that some judges are biased toward defendants — and that the high court's decision goes beyond the narrow issues in the immediate case to establish a sweeping principle.

The court traced the positive right to a jury trial — which it termed "one of the most revered of all rights acquired by a people to protect themselves from the arbitrary use of power by the State" — and positions on waiver of the right from English common law through constitutional provisions, legislation and case law in Illinois. In 1941 the General Assembly passed legislation creating a positive right to waive a jury trial (see Ill. Rev. Stat., 1953, ch. 38, sec. 736). The Illinois Supreme Court's ruling in People v. Spegal ((1955), 5 Ill. 2d 211) confirmed this. The U.S. Supreme Court has held the opposite view, but in Singer v. United States ((1965), 380 U.S. 24, 13 L. Ed. 2d 630, 85 S. Ct. 783) it noted that Illinois considered the waiver a personal right.

Language about the right to a jury trial in the Illinois Constitution is substantially identical to that in the U.S. Constitution, but Illinois' Article I, section 13, says that "the right of trial by jury as heretofore enjoyed shall remain inviolate." The high court interpreted the added words "as heretofore enjoyed" to indicate an intention to preserve the positive right to a waiver as part of the guarantee of a jury trial, in contrast to interpretations of the U.S. Constitution . The court observed that' 'trial by jury is a right guaranteed to the people, and not to the State." For Illinois it concluded, "Short of a constitutional amendment to that effect, the legislature cannot now deprive an accused in Illinois of any part of that constitutionally protected right."

Judge Howard C. Ryan wrote the majority opinion in People ex rel Daley v. Joyce (Docket Nos. 65487, 65678, 65679 cons.). Justice William G. Clark's special concurrence saw the majority opinion as moving away from interpretation of the state Constitution in what he termed "lockstep" with the U.S. Constitution, but not going far enough. He felt that the framers of the Illinois Constitution "wanted the security of knowing that the seven justices of this court would bring to bear on every important constitutional issue their independent resources of wisdom, judgment, and experience." Judge Ben Miller's dissenting opinion said, "There is nothing in the language of the jury trial right, standing alone, that also guarantees the opposite right."

Other cases

Several opinions filed January 15 are interesting for comments or rulings collateral to the main decision of the court.

• Justice Howard C. Ryan, who concurred in part with the majority decision in an appeal of the death penalty, People v. Caballero (Docket No. 64252), dissented in the decision to remand in order to determine whether the defendant had received effective counsel. "The charge of ineffective assistance of counsel is fast becoming the most popular avenue through which convicted persons seek relief," said Ryan in criticizing the protracted appeal process in capital cases. "At some point before final judicial determination, Juan Caballero will probably expire from natural causes," he observed and decried "the willingness of the courts to participate in such hindsight analysis."
• The court ruled that notice of appeal is timely if mailed within the required 30-day period, even if it is received later than that by the clerk of the circuit court. This brought the procedure into agreement with other filing rules of the court that "evince the modern policy of equating time of mailing with actual receipt." Justice William G. Clark wrote the opinion in Harrisburg-Raleigh Airport Authority v. Department of Revenue (Docket Nos. 663881, 66544 cons.); Justice Horace L. Calvo did not participate.
• Because of drafting ambiguities the court had to set July 1, 1987, as the effective date for provisions of the homicide act that replace the crimes of murder and voluntary manslaughter with first degree murder and second degree murder, respectively (see Ill. Rev. Stat., 1987, ch. 38, secs.9-1(a)(1)). It found that the act did not contain a specific effective-date provision and that the act's provision for retroactive application to January 1, 1987, violated state and federal constitutional prohibitions against ex post facto laws. Chief Justice Thomas J. Moran wrote the opinion in People v. Shumpert (Docket No. 67067); Justice Horace L. Calvo did not participate.

F. Mark Siebert

March 1989 | Illinois Issues | 28