Quick takes on Thursday's Illinois Supreme Court opinions
Our panel of leading appellate attorneys review Thursday's Illinois Supreme Court opinions in the family law case O'Brien v. O'Brien and criminal case People v. White.
O’Brien v. O’Brien
By Alyssa M. Reiter, Williams Montgomery & John Ltd.
This family law case actually involves the much broader issue of the proper standard to be used in deciding whether to substitute a judge “for cause.”
Lisa O’Brien filed domestic battery charges against her estranged husband, John O’Brien. Judge Joseph Waldeck presided over an evidentiary hearing in that matter and made certain evidentiary rulings. Judge Waldeck subsequently presided over the couple’s marital dissolution proceedings. About one year after the dissolution case was pending, John sought a substitution of judge pursuant to Illinois Code of Civil Procedure section 2-1001(a)(3), which provides for substitution “for cause.” Another judge considered the matter and denied substitution. From the final judgment, John appealed and the case reached the Illinois Supreme Court on a certificate of importance.
The Supreme Court affirmed. It noted that, while section 2-1001(a)(3) does not define “cause,” Illinois courts have held that “actual prejudice has been required to force removal of a judge from a case, that is, either prejudicial trial conduct or personal bias.” The Court rejected John’s “invitation to replace the actual prejudice standard with the appearance of impropriety standard.” The Court did recognize, however, that under Caperton v. A.T. Massey Coal Co., 556 U.S. ___, 129 S. Ct. 2252 (2009), a judge reviewing a for-cause challenge against another judge should also assess constitutional due process implications raised and guard against the “risk of actual bias” by applying the Caperton standard (“whether under a realistic appraisal of psychological tendencies and human weakness, the interest poses such a risk of actual bias or prejudgment that the practice must be forbidden….”).
Justice Garman specially concurred, contending that the opinion was purely advisory. Justice Karmeier also specially concurred, contending that the standards set forth in Rule 63(C)(1) of the Code of Judicial Conduct should also be taken into account when determining whether a petition for substitution for cause should be allowed.
People v. White
By Kerry J. Bryson, Office of the State Appellate Defender
The appellate court found that a total prohibition of defense counsel from
observing witnesses at a lineup constitutes a violation of a defendant's
sixth amendment rights, but declined to grant relief in this case after
concluding that White's sixth amendment right to counsel had not attached
at the time of the lineup. The issue of defendant's right to have counsel
present at the lineup had not been raised in the trial court.
The Supreme Court granted leave to appeal, but ultimately declined to
consider the substantive issues presented. Instead, the Court concluded
that the appellate court had erred in reviewing the case under the
closely-balanced evidence prong of plain error analysis. In reaching this
result, the Court engaged in an "exhaustive recitation" of the evidence and
found that, while the quantity of the evidence may have weighed in
defendant's favor, the quality did not. The Court emphasized that it the
determination of whether a case is closely balanced is dependent on a
qualitative review of the evidence and stated that the appellate court's
analysis of the closeness of the case was "not reliable" here.
In discussing the closely-balanced evidence standard, the Court likened it
to a claim of ineffective assistance of counsel because there must be a
showing of prejudice under either test. For closely-balanced evidence, the
defendant must show that the error alone would have tipped the scales
against him, i.e., that the verdict may have resulted from the error and
not the evidence. For ineffective assistance of counsel, the defendant
must estalbish a reasonable probability of a different result had the
evidence in question been excluded.
The Court also clarified that, for plain error analysis, the reviewing
court need not conduct a sequential review -- that is, the court does not
have to first determine whether there was error before determining if any
error was prejudicial. Instead, a reviewing court may first look to
whether any error affected the outcome. If it did not, then the court need
not engage in the "meaningless endeavor" of considering whether there was
error. Here, even assuming there was error in the lineup procedure, the
Supreme Court found it had no impact on the outcome of the trial.
The dissent was critical of the majority's refusal to address the
substantive issues on which leave to appeal had been granted, noting the
need to provide guidance to the lower courts.
The first 40+ pages of the slip opinion in this case contain the Court's
"exhaustive recitation" of the evidence. What the decision really boils
down to starts at page 42. The opinion provides some clarification on the
subject of plain error review under the closely-balanced evidence prong.
For the appellate practitioner, it comes down to this -- if there was no
prejudice from an unpreserved error, the reviewing court need not even
consider whether there was error at all (similar to the procedure for
ineffective assistance of counsel claims).