¶1dissenting:
¶2I respectfully dissent.
¶3As the majority indicates, “[t]he purpose of voir dire is to insure the selection of an impartial panel of jurors free from bias or prejudice.” People v. Stewart, 343 Ill. App. 3d 963, 977 (2003). The trial judge is in a sensitive position when examining prospective jurors, and the judge’s conduct can create an atmosphere that taints the jury selection process and thus deprives a party of a fair trial. Rowe, 106 F.3d at 1230.
¶4The majority states that it has “no disagreement with the Rowe decision,” but that it feels constrained not to apply Rowe to this particular case, because of several “striking” differences between this case and Rowe. 388 Ill. App. 3d at 8.
¶5One difference noted by the majority was that defense counsel in the case at bar was “free” to question the prospective jurors directly about whether they felt intimidated by the trial court into remaining silent. 388 Ill. App. 3d at 9. What could defense counsel ask? “If you were intimidated into saying nothing by the trial judge, who is sitting right over my shoulder, please let me know.” If any jurors had been intimidated into silence, then the surest proof of that would be their continued silence. See People v. Vargas, 174 Ill. 2d 355, 365 (1996) (“ ‘[j]urors are ever watchful of the attitude of the trial judge … [and] his lightest word … may prove controlling’ ”), quoting People v. Marino, 414 Ill. 445, 450-51 (1953).
¶6In Rowe, the trial court tried this approach and it failed. In Rowe, the trial court asked the venire: “ ‘Is there anyone else, was there anyone, and please raise your hand, that was frightened by the court, to where you didn’t want to answer any questions along those lines?’ ” Rowe, 106 F.3d at 1229. Not surprisingly, no juror raised a hand. Rowe, 106 F.3d at 1229. Nonetheless, following conviction, a panel member was prepared to testify that she “felt like she had no recourse but to sit there and keep her mouth shut, and that was the best thing she could do.” Rowe, 106 F.3d at 1229. Thus, we know from Rowe that asking the prospective jurors directly is not the solution.
¶7A second difference noted by the majority was the fact that in Rowe there was a proffer of testimony from an intimidated juror, whereas in the case at bar, there was no similar offer of proof. 388 Ill. App. 3d at 9. This is true, but requiring postverdict information would only encourage a system where defense counsel routinely interrogate jurors, after a guilty verdict, about their possible partiality. Do we want defense counsel tracking down jurors after they leave the courthouse?
¶8Years ago, this court warned of the “serious dangers in permitting ex parte communications between the unsuccessful litigants and the jurors.” Chalmers v. City of Chicago, 92 Ill. App. 3d 54, 57 (1980). This court explained:
“ ‘To allow jurors’ affidavits … would tend to pollute our system of independent deliberations by the jury. Every party who was dissatisfied with a jury verdict would feel able at least to attempt to effect a revision thereof. Such a situation leaves jurors open to harassment and intimidation long after they have been discharged from their official duties and thus after they are outside the watchful eye of the court.’ ” Chalmers v. City of Chicago, 92 Ill. App. 3d 54, 57 (1980), quoting Roberts v. Kettelle, 116 R.I. 283, 300, 356 A.2d 207, 217 (1976) (Supreme Court of Rhode Island).
¶9Because of fears of juror harassment, the appellate court has always discouraged parties from trying to obtain postverdict affidavits from jurors. As a result, the well-established rule in this state is that post-verdict affidavits or testimony from a juror regarding “motive, method or process” cannot be used to impeach a jury verdict. People v. Lee, 294 Ill. App. 3d 738, 744 (1998); People v. Wilson, 246 Ill. App. 3d 311, 322 (1993).
¶10Postverdict juror affidavits are permitted only if they provide evidence of excluded events or physical intimidation, and only if they do not show how these events effected the jury’s reasoning. Lee, 294 Ill. App. 3d at 744; Wilson, 246 Ill. App. 3d at 322. In the case at bar, we already know that physical intimidation occurred; we do not need a juror affidavit for that. The trial court’s threat to physically confine a juror within the courtroom in order to punish qualifies as physical intimidation. Physical confinement is, after all, the type of punishment that a trial court often uses to enforce its power in a contempt situation. Since we know what transpired, the only additional information that could be provided by a juror affidavit is how the juror felt about it emotionally and how it effected his or her deliberations. Affidavits which showed that the trial court’s conduct affected the jury’s partiality and actually prejudiced defendant would also, by necessity, suggest their effect on the jury’s reasoning — and thus be prohibited. Lee, 294 Ill. App. 3d at 744; Wilson, 246 Ill. App. 3d at 322.
¶11Finally, the difference that was “foremost” according to the majority was that in Rowe, the defense objected and in the case at bar, the defendant did not. 388 Ill. App. 3d at 8. When errors are directed at the trial court’s conduct, the waiver rule is relaxed. People v. Young, 248 Ill. App. 3d 491, 498 (1993). “[T]his court has previously observed that the fundamental importance of a fair trial and the practical difficulties involved in objecting to the trial court’s conduct compel a less rigid application of the waiver rule.” People v. Taylor, 357 Ill. App. 3d 642, 647 (2005), citing People v. Stevens, 338 Ill. App. 3d 806, 810 (2003).
¶12Our supreme court has held that “the plain-error doctrine allows a reviewing court to consider unpreserved error when (1) 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) 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.” People v. Piatkowski, 225 Ill. 2d 551, 565 (2007).
¶13In the case at bar, the second prong of the plain-error analysis applies: an error so serious that it affected the fairness of defendant’s trial. The right of a criminal defendant to an unbiased, open-minded trier of fact is the very foundation of our criminal justice system. Taylor, 357 Ill. App. 3d at 647, citing People v. Eckert, 194 Ill. App. 3d 667, 673 (1990). The right to a fair trial is guaranteed to all criminal defendants by the due process clauses of both the United States (U.S. Const., amend. XIV) and the Illinois Constitutions (Ill. Const. 1970, art. I, §2). Taylor, 357 Ill. App. 3d at 647, citing People v. Hattery, 183 Ill. App. 3d 785, 801 (1989).
¶14In distinguishing between reversible and nonreversible admonishments to the venire panel, our colleagues on the federal bench have drawn a line between criticism and threats, with criticism falling on the non-reversible side and threats of punishment falling on the reversible side. For example, in Rowe, the federal appellate court found error where the trial court threatened to punish a juror by forcing her to “com[e] back again, and again, and again” until the juror learned “how to put aside [her] personal opinions and do [her] duty to [her] country as a citizen.” Rowe, 106 F.3d at 1228. By contrast, in United States v. Vega, 221 F.3d 789, 803 (5th Cir. 2000), the same appellate court found no error because the trial judge “did not expressly or impliedly threaten to punish venire members who claimed bias,” but merely criticized a juror for volunteering her bias before the question had even been asked. Vega, 221 F.3d at 803. Accord Colabella, 448 F.2d at 1304 (no error where judge’s comments merely expressed “displeasure” with jurors who claimed to have prejudged the case). Applying the distinction drawn by our colleagues on the federal bench to the facts of the case before us reveals that the trial court’s behavior fell on the reversing side of the line.
¶15The majority’s opinion relies heavily on the North Carolina case of Rannels. Rannels, 333 N.C. at 656, 430 S.E.2d at 260-61. In Rannels, the trial court punished a prospective juror who stated he could not give the case the attention it deserved. Rannels, 333 N.C. at 656, 430 S.E.2d at 260-61. The trial court punished the juror by requiring him to sit through the trial, in the front row. Rannels, 333 N.C. at 656, 430 S.E.2d at 260-61. The North Carolina Supreme Court seemed to approve of the trial court’s behavior, stating that the trial “court’s reaction to the juror’s response [could have] reinforced among the other prospective jurors the need to be forthright and honest.” Rannels, 333 N.C. at 656, 430 S.E.2d at 261. Since the holding in Rannels is based largely on the approval of punishing conduct, I find the case of little persuasive value to Illinois courts. Rannels, 333 N.C. at 656, 430 S.E.2d at 260-61. The majority in the case at bar also disapproves of punishing conduct. 388 Ill. App. 3d at 5. As a result, we should reject Rannels and adopt instead the distinction drawn by the federal courts.
¶16I have no doubt that if the trial judge in the case at bar had required the punished juror to return to the courthouse every day for a year, then my colleagues in the majority would find plain error. See 388 Ill. App. 3d at 9. Our difference then is not one of kind but degree. I find that the threat of one day’s punishment was a sufficient deterrent to require reversal. People v. Branch, 123 Ill. App. 3d 245, 251-52 (1984) (it was more likely than not that the court’s threat of overnight sequestration intimidated a juror into reaching a verdict).
¶17I realize that a judge has a difficult job during jury selection, especially when some members of the array try to shun their responsibilities, and others witness their awkward attempts to avoid jury service. However, when a judge punishes a prospective juror in front of the entire array of jurors for admitting that he or she cannot be fair, I believe the entire array of jurors has been tainted, and the parties cannot receive a fair trial. The trial court then has a duty to declare a mistrial, even if one was not requested.
¶18I find Rowe persuasive. Unlike the majority, I do not find meaningful differences. Therefore, I must dissent.