People v. Little, 2018 IL App (1st) 151954 (September). Episode 546 (Duration 10:51)
Trier of fact bias and what it means for criminal justice, trial judge gives his verdict before defense counsel had a chance to give its closing argument.
Defendant was convicted after a bench trial of aggravated battery of a peace officer (720 ILCS 5/12-3.05(d)(4)) and criminal damage to government supported property.
But this case has an uncommon (albeit not unique) twist:
The trial court acknowledged its inadvertent error, reopened the case after judgment, and promised to “keep an open mind” while hearing counsel’s (admittedly belated) argument. In the end, the trial court stood by its initial conclusion—that the three police officers who testified for the State were more credible than defendant and two relatives who testified on his behalf—and reaffirmed its findings of guilt.
The question thus presented is whether—and if so, under what circumstances—reopening a bench trial after a premature judgment preserves a defendant’s constitutional right to make a closing argument. Specifically, did the judge in this case adequately protects a defendant’s sixth amendment right to make a closing argument, and, as a corollary, his due-process right to a fair and open-minded trier of fact.
The trial court heard testimony from three police officers, who testified that a drunk and unruly defendant resisted their efforts to subdue him, making the prohibited physical contact with two officers in the process.
The trial court also heard “diametrically opposed” testimony from defendant and two of his relatives, who testified that a swarm of police officers descended upon the bar’s parking lot and “just went berserk on people,” including defendant, for no particularly obvious reason.
The bench trial consisted of the police trying to talk to defendant about an argument with a women in the parking lot of a bar. They said defendant was belligerent, hostile and aggressive with them. A struggle ensued when they tried to arrest him.
Defendant and his witnesses testified that the police were harassing people in the parking lot and approached defendant and hit him in the face with a baton for no reason. A struggle then ensued.
After the defense rested, the trial court continued the case, so the judge could review his notes and the trial transcripts. The court did not hear closing arguments at that time. When the case was eventually recalled nearly three months after the close of evidence, the trial court immediately announced its findings.
The court found that the case boiled down to a credibility contest; that the officers testified credibly; and that defendant’s relatives “had a motive not to be truthful” on the stand.
The trial court found defendant guilty of several counts of aggravated battery of a peace officer. The counts were all based on making physical contact of an insulting or provoking nature. Defendant was acquitted of the counts charging him with causing bodily harm to the officers. The trial court also found defendant guilty of one count of criminal damage to government-supported property.
What About My Closing Argument?
When it became apparent he judge had ruled, defense counsel immediately, if sheepishly, asked, “[d]id we ever argue this case?” The trial court initially said yes, but soon conceded its error.
When counsel then asked, “Do you think argument is gonna change your mind?,” the court answered, “I have no idea,” but assured counsel “that I will keep an open mind.”
Counsel made his closing argument without interruption, focusing on the role of the bar’s security guards and their failure to testify.
When counsel finished summing up, the trial court reiterated its findings of guilt. As the judge explained to counsel, he had spent several hours reviewing his notes and the transcripts, and “my opinion does not change after your closing argument.” The judge apologized for announcing his findings prematurely, but added, again, that “nothing that you said, [counsel], would have changed my mind.”
The State waived both its closing argument and rebuttal.
The trial court reiterated its findings of guilt after hearing counsel’s belated argument.
As the judge explained, “I spent probably—probably six or seven hours going over this case in my mind, again reviewing everything that I have, and my opinion does not change after your closing argument.” The judge apologized to counsel for not letting him argue the case first, but added, again, that “nothing that you said, [counsel], would have changed my mind.”
The trial court merged the various counts of aggravated battery to a peace officer into two (one for each victim), and sentenced defendant—who had no prior felony convictions and was gainfully employed—to two years’ probation.
Right To Closing Argument
The sixth amendment guarantees every defendant the right to make a closing argument, whether he elects a jury or a bench trial, and no matter how “simple, clear, unimpeached, and conclusive the evidence may seem.” (Internal quotation marks omitted.) Herring v. New York, 422 U.S. 853, 856-57, 860 (1975). When this right is completely denied, “[t]here is no way to know” what arguments in summation might have affected the outcome of the case. Id. at 864.
Thus, although Herring did not say so explicitly, courts have universally read that decision to require automatic reversal when defense counsel is not permitted to argue the case. See, e.g., People v. Millsap, 189 Ill. 2d 155, 166 (2000); People v. Stevens, 338 Ill. App. 3d 806, 810 (2003).
But that is not—or not exactly—what happened here.
Analysis – Unbiased Trier of Fact
A trier of fact should strive to suspend judgment, as best it can, until the end of the trial.
But that is possible only to a point. Judges and jurors inevitably form beliefs about the evidence presented to them as the case unfolds. For instance, a belief that a witness is telling the truth—or not—will sometimes impress itself upon the trier of fact in real time, as it observes the witness on the stand.
And when the evidence as a whole strikes the trier of fact as simple and decisive enough—if, for example, the case turns on the testimony of a witness whose credibility seems immediately apparent—the verdict, unavoidably, will also seem clear to the trier of fact long before closing argument. But even in these circumstances closing argument may still change the trier of fact’s mind. See Herring v. New York, 422 U.S. 853, 856-57, 860 (1975).
No matter how “simple” or “open and shut” the case may seem, it is always possible that the trier of fact has missed something—a doubt about a witness, a gap in the State’s proof, some connection between various evidentiary facts—and so has misjudged the case prematurely. And it is always possible that counsel, marshalling the evidence “from the point of view most favorable to” the defendant, will bring that error to light, and thus “correct” the trier of fact’s “misjudgment,” in closing argument.
The Court’s faith in the power of an advocate’s argument to sway the verdict even in these seemingly futile circumstances is an essential part of why the right to closing argument fundamental.
Bias Is Always There
This bias is always with us. It influences every trier of fact’s view of the evidence as the trial unfolds. We cannot pretend otherwise without embracing the very fiction that Herring rejected. We hope that every trier of fact will fight against this bias, and strive—against its own human tendencies—to consider new evidence and arguments fairly, no matter how clear the verdict may seem in light of the evidence already presented.
Defense Is Wrong
But we could not make sense of this holding if we accepted a key premise of defendant’s argument—that we cannot reasonably expect closing argument to change the trier of fact’s mind, once it has come to a conclusion about the defendant’s guilt.
Herring tells us that the trier of fact could change its mind.
It is not wrong, but it is overly simplistic, to insist that a fair and open-minded trier of fact is one that “hears before it decides.” Spence, 463 A.2d at 811(quoting People v. Diaz, 1 Ill. App. 3d 988, 992 (1971)). We need not—because Herring does not—indulge the fantasy that a trier of fact will suspend all judgment until the last word is uttered in rebuttal argument.
The Kind Of Jury We Want
Instead, the fair and open-minded trier of fact to which every defendant is entitled is one that—while striving to suspend judgment, as best it can—is open to revising the views it does reach along the way. It is a trier of fact that remains open, at all times, to the possibility that its impressions and beliefs thus far may ultimately be wrong, upon further evidence, argument, or reflection.
It is a trier of fact that listens attentively and patiently, until the very end, for any evidence or argument that might sway its verdict.
Yeah, But When You Announce Your Bias Is It Too Late?
But what about a case like this one—where the trial court took the next step and actually announced its judgment before hearing closing argument? Can a judge, in these circumstances, still hear a belated argument with an open mind? Or is it too late, at that point, for argument to be anything but futile?
That next step is not a trivial one.
Reversing the order of argument and verdict is not a merely formalistic error. The verdict is obviously meant to have a finality that any previous impressions or beliefs about the evidence lacked. But we think it goes too far to say that a judge who has committed this error at a bench trial is necessarily incapable of giving full and fair consideration to a belated defense argument; or of being persuaded, when the argument is compelling, that his or her view of the evidence was wrong.
We are not convinced that a premature bench-trial verdict is, as it were, a “bell” that can never be “unrung.” We glean the following rule from these cases:
Reopening a case for closing argument is an adequate remedy for a premature judgment when the record shows that the judge was willing to hear the defense’s argument with an open mind—that is, where the judge acknowledges (or at least does not overtly reject) the possibility that counsel’s argument could still change the judge’s mind about the outcome of the case.
But if the record shows that the judge was unwilling to keep an open mind, or expressed the view that he simply could not, then the only remedy that would protect the defendant’s constitutional rights would be a new trial, before a different judge.
We do not deny that human beings may be subject to confirmation bias. And we are mindful that a defendant’s right to an unbiased and open-minded trier of fact is of paramount importance. But we reject the conclusion that once the trier of fact has reached a conclusion about the case, closing argument is necessarily futile, because the trier of fact can no longer hear and consider the argument fairly.
This Isn’t Exactly Propensity Evidence
That metaphor may be apt enough when, for example, a trier of fact is asked to disregard prejudicial evidence. Perhaps the clearest case is propensity evidence—evidence that is inadmissible despite being relevant. See, e.g., People v. Donoho, 204 Ill. 2d 159, 170 (2003) (propensity evidence “not considered irrelevant”; rather, it has “too much probative value” (internal quotation marks omitted)).
Because such evidence is relevant, a rational person ordinarily would want to consider it when trying to get at the truth; and for that reason, such evidence, once heard, may simply be too difficult to ignore (even if the law has its reasons for asking the trier of fact to do so). But a judge who is asked to consider a belated argument is not being asked to disregard relevant evidence. The judge is simply being asked to hear an argument with an open mind and give it whatever consideration it deserves.
Defendant’s burden is to explain why a trial judge’s ability to keep an open mind—in the sense we have explained—ends, irrevocably, when a judgment is announced prematurely. The metaphor of “unringing the bell,” in this context, explains nothing.
What do we mean by being open-minded, and no doubt some triers of fact will succeed more than others?
Does a trial court’s confirmation bias strengthen when the court formally announces its verdict? Perhaps. But we cannot honestly claim to know. Neither can defendant. Even less can he claim to know that the bias becomes decisive at that point, leaving the judge unable to consider a belated argument with a fair and open mind.
We have not been given any clear reason to adopt that blanket presumption. And without it, there is no basis for applying a bright-line rule of reversal when a trial court reopens a bench trial, after a premature judgment, to hear closing argument.
We adhere to our holding in Daniels, 51 Ill. App. 3d 545, as we have elaborated it here. See also Herring v. New York, 422 U.S. 853, 856-57, 860 (1975). To recap:
Reopening a case for closing argument is an adequate remedy for a premature judgment at a bench trial when the record shows that the judge was willing to hear the defense’s argument with an open mind. But if the record shows that the judge was not willing to keep an open mind, or expressed the view that he or she could not, then the defendant is entitled to a new trial before a different judge.
All that remains is to apply this rule to the record before us.
The court clearly made an honest mistake in thinking, nearly three months after the close of evidence, that it had previously heard closing arguments. The trial court never intended to deprive defendant of his closing argument, and it never expressed the attitude that closing argument was in any way dispensable. Nor did the trial court’s comments in any way “manifest an unwillingness to hear [the defendant’s] closing argument” fairly.
The trial court here promised to “keep an open mind.”
The court could hardly have been clearer that it was willing to listen to counsel’s argument and give it whatever consideration it deserved on the merits. Nothing in the record suggests that the court’s promise was insincere, or that the trial court failed in its “obligation to be attentive, patient, and impartial” while hearing counsel’s argument.
In sum, defendant was not denied his sixth-amendment right to make a closing argument. Nor was he denied a fair trial before an open-minded trier of fact. For the foregoing reasons, defendant’s convictions and sentence for aggravated battery of a peace officer and criminal damage to government-supported property are affirmed.