Appeal from the Circuit Court of Randolph County. No. 94-CF-27 Honorable Jerry D. Flynn, Judge, presiding.
The opinion of the court was delivered by: Justice Kuehn
In July of 1994, defendant waived a jury and went to trial on murder charges in Randolph County before the Honorable Judge Jerry D. Flynn. After a two-day trial at which both sides presented evidence, Judge Flynn found defendant guilty of first-degree murder in the suffocation death of her infant child. Thereafter, he sentenced her to a 35-year prison term.
Defendant appealed that conviction. Among the issues raised on her appeal was an issue of whether a competency hearing was required due to defendant's use of psychotropic medication during the trial. At the time of defendant's initial appeal, the only remedy for the trial and conviction of a medicated defendant in the absence of a prior fitness hearing was to vacate the conviction and start over. Thus, we granted defendant a new trial. See People v. Jones, 291 Ill. App. 3d 231, 684 N.E.2d 772 (1996).
On remand, she again appeared in a Randolph County courtroom for trial on her plea of not guilty. The singular proceedings that followed form the basis of the present appeal.
Defendant again shunned a jury and proceeded to a bench trial. While such a decision might appear somewhat questionable given how a judge had already ruled, it was not what set the trial apart from other trials. The defense wanted the judge to decide guilt or innocence by use of the exact same evidence that guided Judge Flynn's earlier decision. This design was effectuated by the prosecution's tender of a transcript from the prior trial and defense counsel's stipulation to its admission into evidence. Thus, trial's outcome depended upon a second judicial determination based upon the identical defense that Judge Flynn had already rejected. Defendant sought to have a judge acquit where a judge had already convicted.
While the trial's unusual design set it apart from other trials, it is still not what made the proceedings truly unique. Defendant chose to pursue this course in the courtroom of and while standing before the Honorable Jerry D. Flynn.
Judge Flynn could not help but note the obvious. He candidly observed before he again decided the question of defendant's guilt or innocence that he was predisposed to find her guilty just as he did before. After he warned defendant of trial's inevitable outcome if a decision was left to him, and defendant acknowledged her understanding of that fact, Judge Flynn found defendant guilty of first-degree murder and sentenced her to a 35-year prison term.
There is one other thing that adds to the remarkable nature of these proceedings. There was a lawyer present who assisted defendant in this course of action.
These events raise two questions. The first is whether the proceedings meet the fundamental structural due process requirement to trial before an unbiased judge. See Tumey v. Ohio, 273 U.S. 510, 532, 71 L. Ed. 749, 758, 47 S. Ct. 437, 444 (1927). The second is whether counsel's performance was constitutionally deficient. See United States v. Cronic, 466 U.S. 648, 659, 80 L. Ed. 2d 657, 668, 104 S. Ct. 2039, 2047 (1984). We decide the case on the latter question.
This was not a guilty plea even though defendant's surrender to a forewarned outcome resembled such a plea. Defendant did not forego the rights afforded her under a plea of not guilty. This was a trial, albeit an expedited one.
The State defends it. It argues that it constituted a fair trial wherein the judge was free to decide guilt or innocence based upon stipulated evidence taken at the first trial.
The State also defends counsel. It points out that stipulated bench trials are routinely used as sound strategic tools by criminal defense attorneys. While this is certainly true, it serves only to raise the paramount question that abounds. How did counsel strategically employ a stipulated bench trial to assist his client in this case? He proceeded without concession from the State in return for the stipulation. Moreover, he did not file a posttrial motion, a step he surely would have taken if his purpose was to preserve error from the first trial for appellate review. The errors that might have occurred at the first trial now lay forfeit to counsel's inaction. See People v. Enoch, 122 Ill. 2d 176, 185-86, 522 N.E.2d 1124, 1129 (1988); People v. Szabo, 113 Ill. 2d 83, 93, 497 N.E.2d 995, 999 (1986).
The Supreme Court has instructed as follows: "Unless the accused receives the effective assistance of counsel, 'a serious risk of injustice infects the trial itself.' [Citation.]
Thus, the adversarial process protected by the Sixth Amendment requires that the accused have 'counsel acting in the role of an advocate.' [Citation.] The right to effective assistance of counsel is thus the right of the accused to require the prosecution's case to survive the crucible of meaningful adversarial testing. When a true adversarial criminal trial has been conducted--even if defense counsel may have made demonstrable errors--the kind of testing envisioned by the Sixth Amendment has occurred. But if the process loses its character as a ...