The Illinois Appellate Court recently reversed a criminal defendant’s attempted murder and aggravated battery convictions, sending a forceful reminder that prosecutorial misconduct will not be tolerated and that judges are “required to be fair and dispassionate arbitrators above all else.” In People v. Jones, 2016 IL App (1st) 141008, the First District reversed the convictions and ordered a new trial in front of a new judge based on prejudicial comments made by the State and the trial court.

Jones was convicted of three counts of attempted murder and three counts of aggravated battery with a firearm stemming from a September 2010 shooting during the Chicago Police Department’s execution of a search warrant at Jones’s residence. On appeal, the First District found that the dispositive issue was the impropriety of the State’s repeated references to the defendant as a “criminal” in its opening statement. The court explained that “derogatory and pejorative terms used to describe the defendant” and “comments intending only to arouse the prejudice and passion of the jury” are improper. Id. at ¶ 21. Because the purpose of an opening statement is “to advise the jury concerning the question of facts and it is not, and should not be, permitted to become an argument,” attorneys have less latitude in opening statements than they do in closing arguments. Id. at ¶ 22 (quoting People v. Weller, 123 Ill. App. 2d 421, 427, 258 N.E.2d 806 (1970)). The court was concerned that the derisive characterizations of the defendant in the State’s opening statement might be particularly likely to bias the jury given that it was their first introduction to him. The trial court’s instruction for the jury to disregard those comments was determined to be insufficient to ameliorate the prejudice.

The court further criticized the State’s description of the defendant as a “cold blooded criminal” since he had never been convicted of a crime. Id. at ¶ 24. The prejudice inquiry also considered the State’s evidence against the defendant which consisted of conflicting statements of two witnesses. The court held that the State’s “relatively thin” evidence – which he court discussed as “while undoubtedly sufficient to convict, [but] was not overwhelming” - made it more likely that the jury was over-persuaded by the State’s description of Jones as a criminal. Id. at ¶26. As a result, the First District reversed and remanded for a new trial: “[t]he State’s misconduct here requires us to do more than merely express our disapproval, given that the State’s improper comments may have contributed to Jones’s conviction.” Id. at ¶ 29.

Although in light of the court’s decision to remand the case for a new trial, the Appellate Court found moot the defendant’s argument that his 23-year sentence was excessive, the First District nevertheless noted that the court’s comments during sentencing were sarcastic and “highly offensive.” Specifically, when the defendant apologized to his children, the trial court remarked, “I don’t believe they thought about their kids in the slightest on that day. No one. If someone said, ‘Hey man, how are your kids doing?’ Their response would be ‘What kids? I got kids somewhere?’” Id. at ¶ 37. The First District believed that such comments demonstrate a categorical bias against all criminal defendants and their concern for their children, and “leave little doubt that they were derisive and intended to malign an entire class of criminal defendants.” Id. While the trial court was entitled to disbelieve the sincerity of the defendant’s purported concern for his children, the trial court crossed the line when it suggested a “categorical disbelief of any defendant who claimed such concern.” Id. Quoting the Illinois Code of Judicial Conduct that requires a judge to be “patient, dignified, and courteous to litigants, jurors, witnesses, lawyers and others with whom the judge deals in an official capacity,” the First District found that the trial court’s comments did not comport with the well-established standards of judicial conduct. Id. at ¶ 38. As a result, the court said that the trial on remand should proceed in front of a different trial judge. 