¶1specially concurring:
¶2I agree with the court in all respects and join fully in the opinion affirming the orders of the circuit court. I write separately only to express my views on a portion of Chief Justice Harrison’s dissent to which the court today does not respond.
¶3I note that the Chief Justice takes the same position here that he did in People v. Hickey, 204 Ill. 2d 585 (2001), i.e., that the new supreme court rules addressing capital litigation serve to provide relief to a defendant even if no other basis exists to reverse the case. Having set forth the legal reasoning for his position, the Chief Justice states:
“If our experience with capital cases over the past few years has taught us anything, it is that we must view everything that occurs at capital trials with heightened skepticism. When we surrender that skepticism, disaster follows. Just ask Ronald Jones, Joseph Burrows or Anthony Porter. We found ways to uphold each of their convictions and sentences when their cases first came before us, only to discover later that they were actually innocent.” 204 Ill. 2d at 580 (Harrison, C.J., dissenting).
¶4In my view, these remarks need to be addressed because they unfortunately call into question the integrity of the court.
¶5The names listed in the dissent are some, but not all, of the men released from death row in Illinois when new evidence later was uncovered which cast doubt on the guilty verdicts rendered in each of their capital trials. I specifically take issue with the Chief Justice’s comment that “we found ways” to uphold the convictions in these cases. When a fellow justice states that his court, as a body, has “found ways” to uphold convictions, that justice is saying his colleagues in these cases intentionally overlooked, got around, put to one side, ignored, or otherwise dismissed out of hand, something important that should have caused a reversal, whether that something was a legal argument or exculpatory evidence. The Chief Justice’s remark, even if nothing more than rhetorical flourish, reaches well beyond mere disagreement with the legal reasoning of the other members of the court. Rather, it constitutes a serious charge of unprofessional and unethical judicial conduct. Because the Chief Justice’s statement is untrue and impugns the integrity of the court, I wish to comment on the facts underlying the cases of the men noted in the dissent.
¶6Although this court affirmed Ronald Jones’ convictions and sentence on direct review, what occurred in this court after that initial appeal deserves mention. After the completion of the direct review proceedings, a vaginal swab containing DNA evidence was discovered. This evidence was not presented at defendant’s initial trial and was therefore not a part of the record on direct review. During the ensuing post-conviction proceedings, Jones’ attorneys unsuccessfully argued in the circuit court of Cook County that the vaginal swab containing the newly discovered DNA evidence should be tested. Jones’ lawyers, however, won a victory in this court when we directed the circuit court to release the evidence to Jones’ attorney for the purpose of conducting DNA testing. After the testing was completed, it was revealed that Jones could not have been the perpetrator. This court then issued the following order:
“The order of the Circuit Court of Cook County denying the petition for post-conviction relief is vacated. This cause is remanded to the circuit court with directions to allow defendant’s petition for post-conviction relief, vacate defendant’s conviction and grant defendant a new trial.”
¶7At the subsequent proceedings on remand, the State dismissed the charges against Jones in light of the DNA evidence. In view of these facts, it seems incredible to me that any member of this court could state that this court “found ways” to uphold the convictions in this case.
¶8With respect to Joseph Burrows, this court affirmed his convictions and death sentence on direct review in 1992. People v. Burrows, 148 Ill. 2d 196 (1992). After the completion of the direct review proceedings, Burrows filed a petition for post-conviction relief in which he alleged that, subsequent to his triad, evidence had come to light that the State’s two principal witnesses against him had committed perjury, and that one of those witnesses had later admitted to being the killer. The circuit court granted defendant’s post-conviction petition by vacating the convictions and ordering a new trial. The State appealed directly to this court, asking that we reverse the order of the circuit court and reinstate the convictions and death sentence. We rejected the State’s argument and upheld the trial court’s grant of a new trial. See People v. Burrows, 172 Ill. 2d 169 (1996) (Burrows II). I note that the trial court’s decision to vacate the prior convictions was based largely on this court’s opinion in People v. Washington, 171 Ill. 2d 475 (1996), in which we recognized that a claim of newly discovered evidence of actual innocence presents a constitutional question cognizable under the Post-Conviction Hearing Act. As in the Jones case, the evidence that exonerated Burrows was not available during the original trial. Nevertheless, this court did not hesitate to affirm the circuit court’s order vacating the convictions when that evidence was brought to light.
¶9Finally, with respect to the case of Anthony Porter, I acknowledge that this court upheld Porter’s convictions and death sentence both on direct and collateral review. Indeed, the Chief Justice joined fully in the court’s opinion affirming the denial of post-conviction relief. See People v. Porter, 164 111. 2d 400 (1995). This court did, however, later order Porter’s execution stayed in order to review claims that Porter was mentally retarded and that, as a result, he lacked the mental capacity to. be executed. During the period of the stay, new evidence came to light which was later used to exonerate him. Nothing in the opinions of the court or in the court’s handling of the case supports the assertion raised by the Chief Justice that this court, he included, somehow “found ways” to uphold the Porter convictions.
¶10The Chief Justice’s deeply held position against the death penalty does not give him the license to ignore the facts. The death penalty is a highly charged, emotional area of the law that is very much in the public consciousness. Honorable people can and do disagree over whether the state should have a death penalty. However, by misrepresenting the past actions of this court, the Chief Justice does little more than fan the flames of sensationalism and denigrate this court in the eyes of the public.
¶11JUSTICE McMORROW joins in this special concurrence.
¶12dissenting:
¶13During the pendency of Simpson’s appeal, our court adopted a comprehensive set of new rules governing the conduct of cases in which the State is seeking the death penalty. One of the most significant features of the new rules is their inclusion of rigorous standards governing the qualifications of individuals eligible to try capital cases.
¶14Recognizing the indispensable role of competent trial counsel where the State is seeking the death penalty, our court has determined that such cases may only be handled by those attorneys who possess extensive experience and specialized training in the field. With limited exceptions, only attorneys who have become members of the Capital Litigation Trial Bar may appear as lead or co-counsel in capital cases. That restriction applies to both counsel for the State and counsel for the defense. 188 Ill. 2d Rs. 416(d), 701(b).
¶15The eligibility standards for membership in the Capital Litigation Trial Bar are substantial. Lead counsel, for example, must have at leave five years of criminal litigation experience; have prior experience as lead or co-counsel in no fewer than eight felony jury trials which were tried to completion, at least two of which were murder prosecutions; and have complete certain specified training requirements. The qualifications for co-counsel are comparable. 188 Ill. 2d R 714(b). Attorneys who fail to meet the specified requirements may not appear in capital cases without receiving a waiver directly from our court (188 Ill. 2d R 714(d)), and indigent defendants are entitled to representation by not one but two attorneys with the requisite qualifications (188 Ill. 2d R 416(d).
¶16Now that our court has adopted these stringent new rules, I fail to see how it can continue to sanction proceedings such as the one before us today. This defendant certainly did not have two competent lawyers to represent him. He did not have even one competent attorney to represent him. The trial court permitted him to proceeded pro se, despite serious questions as to the soundness of his judgment and his ability to reason.
¶17Promulgation of the new rules is equivalent to a determination by this court that even a lawyer is not competent to handle a death case unless he has special training and experience. To be consistent with that determination, the court must reject the fiction that this defendant was competent to represent himself. He was not. Under the standards we have now imposed, he never will be. No legitimate purpose will be served by pretending otherwise. If our experience with capital cases over the past few years has taught us anything, it is that we must view everything that occurs at capital trials with heightened skepticism. When we surrender that skepticism, disaster follows. Just ask Ronald Jones, Joseph Burrows or Anthony Porter. We found ways to uphold each of their convictions and sentences when their cases first came before us, only to discover later that they were actually innocent.
¶18The procedures contained in the new rules we have adopted may not be perfect. They may not eliminate all of the constitutional defects in the present death penalty law. Without those rules, however, no capital conviction or sentence can be deemed reliable. People v. Hickey, 204 Ill. 2d 585, 634 (2001) (Harrison, C.J., dissenting). Because Simpson was tried, convicted and sentenced without the benefit of the new rules, his conviction and sentence should therefore be vacated, and the cause should be remanded to the circuit court for a new trial.
¶19Even if Simpson were not entitled to avail himself of the new rules, his sentence of death could not stand. For the reasons set forth in my partial concurrence and partial dissent in People v. Bull, 185 Ill. 2d 179 (1998), the Illinois death penalty law is void and unenforceable because it violates the eighth and fourteenth amendments to the United States Constitution (U.S. Const., amends. VIII, XIV) and article I, section 2, of the Illinois Constitution (Ill. Const. 1970, art. I, § 2). Absent the new rules, there is no basis for altering that conclusion. At a minimum, Simpson’s sentence of death should therefore be vacated, and the cause should be remanded to the circuit court for imposition of a sentence of imprisonment. 720 ILCS 5/9 — l(j) (West 1992).
¶20also dissenting:
¶21For the reasons set forth in my dissent in People v. Hickey, 204 Ill. 2d 585, 636 (2001), I agree with Chief Justice Harrison’s conclusion that the new supreme court rules governing capital cases should be applied retroactively. At a minimum, I again state that the issue of retroactivity should have been more fully addressed by this court following the submission of supplemental briefs.
¶22The majority concludes in this case that Faretta conclusively settles the issue of self-representation in all criminal cases, including capital cases. 204 Ill. 2d at 574. I disagree and contend that Faretta remains an open question with respect to capital cases. Not only was Faretta decided at a time when the United States Supreme Court considered the death penalty unconstitutional, but the Court has recognized that the right to self-representation is not absolute. See Martinez v. Court of Appeal of California, Fourth Appellate District, 528 U.S. 152, 161, 145 L. Ed. 2d 597, 607, 120 S. Ct. 684, 691 (2000); see also United States v. Farhad, 190 F.3d 1097, 1101-09 (9th Cir. 1999) (Reinhardt, J., specially concurring) (criticizing Faretta).
¶23In Martinez, the Court characterized the Faretta rationale as a balance between the right of self-representation and competing governmental interests. Martinez, 528 U.S. at 162, 145 L. Ed. 2d at 607, 120 S. Ct. at 691. In considering those interests, Martinez stated that “[e]ven at the trial level, … the government’s interest in ensuring the integrity and efficiency of the trial at times outweighs the defendant’s interest in acting as his own lawyer.” (Emphasis added.) Martinez, 528 U.S. at 162, 145 L. Ed. 2d at 607, 120 S. Ct. at 691.
¶24Equally important, Faretta does not trump the mandatory minimum requirements of our capital rules because the “status of the accused defendant, who retains a presumption of innocence throughout the trial process, changes dramatically when a jury returns a guilty verdict.” Martinez, 528 U.S. at 162, 145 L. Ed. 2d at 607, 120 S. Ct. at 691. In a capital case, the death penalty phase is sought only after the return of a guilty verdict. Thus, Martinez recognizes that the Faretta right of self-representation may well yield to other governmental interests after a guilty verdict, including the same interests espoused by our rules to ensure reliability and fundamental fairness in capital cases. 188 Ill. 2d Rs. 3.8, 43, 411, 412, 416, 417, 701, 714. Accordingly, in view of Martinez, we should examine carefully the right to self-representation during the aggravation-mitigation phase. See also E. Rieder, Note, The Right of Self-Representation in the Capital Case, 85 Colum. L. Rev. 130, 152-54 (1985).
¶25In his concurring opinion in Martinez, Justice Breyer cites a Ninth Circuit judge’s observation that the right of self-representation frequently conflicts squarely with the constitutional right to a fair trial. Martinez, 528 U.S. at 164, 145 L. Ed. 2d at 608-09, 120 S. Ct. at 692 (Breyer, J., concurring), citing Farhad, 190 F.3d at 1101-09 (Reinhardt, J., specially concurring). Specifically, Justice Breyer notes Judge Reinhardt’s observation that “the Court has never directly addressed the argument of the Faretta dissenters [Justice Blackmun, joined by Chief Justice Burger and Justice Rehnquist] that the Sixth Amendment right to self-representation would lead to unfair trials and unjust convictions.” Farhad, 190 F.3d at 1101 (Breyer, J., concurring).
¶26In Wheat v. United States, 486 U.S. 153, 160, 100 L. Ed. 2d 140, 149, 108 S. Ct. 1692, 1697-98 (1988), the Supreme Court clarified that, under certain circumstances, individual sixth amendment rights must yield to society’s interests in assuring fair trials. The Supreme Court rejected a defendant’s attempt to waive a sixth amendment right because “the institutional interest in the rendition of just verdicts in criminal cases may be jeopardized.” Wheat, 486 U.S. at 160, 100 L. Ed. 2d at 149, 108 S. Ct. at 1698.
¶27Hence, Wheat raises the open question of the extent of the conditional nature of the right of self-representation. For example, this court has an overriding obligation to protect a defendant’s rights. That obligation almost certainly goes unfulfilled when, as is often the case, a pro se defendant presents a lacking and inept defense. See, e.g., Powell v. Alabama, 287 U.S. 45, 69, 77 L. Ed. 158, 170-01, 53 S. Ct. 55, 64 (1932) (discussing the typical quality of self-representation). Fundamental fairness prevents a court from imposing the ultimate sentence of death when the court lacks the ability to discern exculpatory or mitigating facts due to inadequate self-representation. Without expressing an opinion on the propriety of the death penalty, I believe that, at a bare minimum, justice requires that we ensure that capital punishment is imposed only under appropriate circumstances.
¶28This case represents the exact kind of capital defendant whom we should not allow to represent himself. Defendant suffered from frequent and severe headaches, dizziness, and fainting spells. After his conviction, it came to light that defendant has a lodged bullet in his head. It was similarly learned that defendant suffered long-term psychological conditions and deficits.
¶29We need not conclude that defendant’s state of mind allowed for a knowing, voluntary, and intelligent waiver of his constitutional right to the effective assistance of counsel. Defendant’s failure to present existing mitigating evidence during the sentencing phase amply demonstrates the potential destructiveness of self-representation. Despite strong admonitions from the trial court, defendant capriciously effected his own inevitable death sentence.
¶30Faretta allowed the waiver of counsel conditioned upon a trial court’s determination that a defendant’s waiver is made with “ ‘eyes open.’ ” Faretta v. California, 422 U.S. 806, 835, 45 L. Ed. 2d 562, 582, 95 S. Ct. 2545, 2541 (1975), quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 87 L. Ed. 268, 274, 63 S. Ct. 236, 242 (1942). Toward that end, we must not allow capital defendants to undertake self-representation in conflict with this court’s constitutional duties to assure a fair trial for every defendant. See Farhad, 190 F.3d at 1102 (Reinhardt, J., specially concurring). In short, I again urge that our new mandatory rules eliminate the right of self-representation in a capital case.
¶31For these reasons, I respectfully dissent. I express no opinion regarding the propriety of the death penalty, nor do I express any opinion in relation to the other issues raised by Chief Justice Harrison’s dissent in People v. Bull, 185 Ill. 2d 179 (1998).