People v. Henderson, 2017 IL App (3d) 150550 (November). Episode 452 (Duration 8:53)

The judge brought the jury into the courtroom to let them see a video with neither the judge, the ASA, nor the defense attorney being there.

Gist

A jury  found defendant guilty of first degree murder under an accountability theory and not guilty of first degree murder as the principal.

This was a murder trial where the defendant was identified as the shooter. At one point in the trial the jury wanted to see some to see some of the videos.

What The Judge Does

The judge told the jury:

“I hear there’s a couple things you wish to view. I’ve got Ms. Bernard here from the State. Obviously, there’s nobody else in here. I would just ask that [you do] not discuss the case with yourselves as long as Ms. Bernard is here in. So you can watch whatever you guys want to watch. She’s obviously the one who seems to know how to run things because nobody else does. And whatever you want to watch, just let her know.”

The defense attorney, prosecutor nor defendant were in the courtroom when the video was played.

The person running the equipment was an ASA not on the case.

After some discussion regarding the actual evidence the jury wished to see and hear, the court stated,

“Well, I’ll let you guys talk to Becky because we are out of here. Like I said, I just want to make sure you don’t talk about the case because, technically, [she is an] employee of the State’s Attorney’s office. You know, normally you get to sit here and discuss it, if you watch it, and if you want to watch any more if you want to watch it two or three times, I’ll keep her here as long as you guys want it.”

They Want More

After a short recess, the court and the jury reconvened, and the jurors requested to watch the video of defendant’s confession.

The court announced,

“Ms. Bernard is back, present. There is nobody else in the courtroom.”

Go Home Or Continue

The court also asked the jury to “decide as a group as to whether or not you feel that you would like to take a break and come back tomorrow morning and continue your deliberations, or if you wanted us to order you dinner and keep deliberating tonight. That, too, is entirely up to you.”

The court informed the jury that, when it got to about 5 p.m., it would send the bailiff in to ask what they want to do.

The court stated “it’s not my goal to lock you in there and force something out of you if you truly think you would like to take a break and start tomorrow refreshed again. That’s entirely your decision.”

They Had A Verdict

After another recess, the parties returned to the courtroom because the jury had indicated it had reached a verdict. Prior to bringing the jury back in, the trial court informed the parties that the jury had, on two different occasions,

“wanted to watch audio or visual evidence that had been submitted” and that it “didn’t feel it necessary to contact either of the attorneys at that time.”

The court further explained that Ms. Bernard came in and hooked everything up and that the jury was told not to discuss anything in front of Ms. Bernard. The court also noted that the jury was supervised by the bailiffs at all times. The jury was then called into the courtroom.

Issue

On appeal, defendant argues that the trial court committed reversible error when it allowed the jury to observe audio and video evidence in the courtroom during deliberations in the presence of a representative of the State’s Attorney’s office.

Plain Error

“Plain-error review is appropriate under either of two circumstances:

(1) when ‘a clear or obvious error occurred and the evidence is so closely balanced that the error alone threatened to tip the scales of justice against the defendant, regardless of the seriousness of the error’; or
(2) when ‘a clear or obvious error occurred and that error is so serious that it affected the fairness of the defendant’s trial and challenged the integrity of the judicial process, regardless of the closeness of the evidence. 

This second prong of plain error is also considered structural error.

Secret Deliberations

We begin by noting that it is a basic tenet of our criminal justice system that deliberations of the jury shall remain private and secret.

The primary purpose of this “cardinal principle” is to protect the jury’s deliberations from improper influence. We also note that the issue here does not call into question the trial court’s decision to allow the jury to review the requested audio and video evidence, which is a matter within the court’s discretion.

Analysis

Rather, the issue concerns the procedure used by the court in allowing the jury to review the evidence during deliberations. While the record indicates the trial court instructed the jury that it should not discuss the case in front of the State employee the first time the jury requested to review evidence, no similar instruction was given during the jury’s second request to review evidence.

Further, even if the jury did not discuss the case while in the presence of the bailiff or the employee of the State’s Attorney office, we simply have no way of determining what affect their presence had on the jury. As defendant notes, the employee of the State’s Attorney’s office or the bailiff could have frowned at a piece of evidence or scoffed at defendant’s testimony. However, neither the judge, nor defendant, nor defense counsel was present to oversee the interaction and to observe any impropriety.

Holding

Thus, we find the trial court committed a clear error by allowing the jury to review the video and audio evidence in this manner. Based on the record before us, we cannot say with any degree of confidence that the procedure employed by the trial court in this case did not affect the jury’s deliberations or result in bias.

On the other hand, we can say with absolute certainty that allowing the jury to review evidence in the courtroom during deliberations and only in the company of an employee of the State’s Attorney’s office and a court bailiff rendered defendant’s trial “fundamentally unfair” and “an unreliable means of determining guilt.”

That is, we find that allowing a representative of the State to be in the room while the jury reviews evidence, without any prior notice to defendant, to be so far beyond the pale of what is expected in a criminal jury trial as to “erode the integrity of the judicial process.” Herron, 215 Ill. 2d at 186.

Accordingly, we find second prong plain error. We reverse defendant’s conviction and sentence and remand for a new trial. Structural errors are those which erode the integrity of the judicial process and undermine the fairness of the defendant’s trial.

An error is typically designated as structural only if it necessarily renders a criminal trial fundamentally unfair or an unreliable means of determining guilt or innocence.

Reversed; cause remanded.