dissent">JUSTICE KNECHT,

dissenting:

I believe defendant has stated the gist of a constitutional claim. Allegations that three named jurors slept during her trial for solicitation of murder for hire is sufficiently troubling to allow the petition to proceed to the second stage of postconviction review.

When Donley, 314 Ill. App. 3d 671, 731 N.E.2d 1260, was decided, Justice McCullough’s dissent expressed concerns. Yet there has not been a flood of claims that judges or jurors were sleeping during trials. Very few convicted defendants have attempted to come through the door the majority implicitly claims was opened in Donley.

The majority says it disagrees with the ruling in Donley. Does that mean Donley is overruled? Or is this case somehow distinguishable because it involves jurors rather than a slumbering judge?

The trial judge here says perhaps one or more jurors simply closed their eyes during lengthy proceedings. That sounds like fact-finding or perhaps idle speculation. The majority suggests clever defendants and their lawyers may ignore sleeping jurors during trial and then argue about the ill effects of such peaceful repose after the adverse verdict.

I am confident the trial judges of Illinois can prevent such problems. The issue is not whether future defendants will make such claims. The issue is whether defendant’s claim entitles her to the second stage of the postconviction process. Applying waiver to her argument at the summary-dismissal stage is not appropriate. One purpose of the postconviction process is to review alleged errors that were not corrected at trial or on appeal. Nothing has changed since the decision in Donley. Unless a compelling reason exists to ignore Donley, we should respect precedent.

Citation profile

Relationships

How this case has been treated — in progress