THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARY JONES, Defendant-Appellant, 311 Ill. App. 3d 433

JUSTICE KUEHN delivered the opinion of the court: In July of 1994, defendant waived a jury and went to trial on murder charges in Randolph County before the Honorable Judge Jerry D. Flynn. After a two-day trial at which both sides presented evidence, Judge Flynn found defendant guilty of first-degree murder in the suffocation death of her infant child. Thereafter, he sentenced her to a 35-year prison term. Defendant appealed that conviction. Among the issues raised on her appeal was an issue of whether a competency hearing was required due to defendant’s use of psychotropic medication during the trial.

At the time of defendant’s initial appeal, the only remedy for the trial and conviction of a medicated defendant in the absence of a prior fitness hearing was to vacate the conviction and start over. Thus, we granted defendant a new trial. See People v. Jones, 291 Ill. App. 3d 231, 684 N.E.2d 772 (1996). On remand, she again appeared in a Randolph County courtroom for trial on her plea of not guilty. The singular proceedings that followed form the basis of the present appeal. Defendant again shunned a jury and proceeded to a bench trial.

While such a decision might appear somewhat questionable given how a judge had already ruled, it was not what set the trial apart from other trials. The defense wanted the judge to decide guilt or innocence by use of the exact same evidence that guided Judge Flynn’s earlier decision. This design was effectuated by the prosecution’s tender of a transcript from the prior trial and defense counsel’s stipulation to its admission into evidence. Thus, trial’s outcome depended upon a second judicial determination based upon the identical defense that Judge Flynn had already rejected.

Defendant sought to have a judge acquit where a judge had already convicted. While the trial’s unusual design set it apart from other trials, it is still not what made the proceedings truly unique. Defendant chose to pursue this course in the courtroom of and while standing before the Honorable Jerry D. Flynn. Judge Flynn could, not help but note the obvious. He candidly observed before he again decided the question of defendant’s guilt or innocence that he was predisposed to find her guilty just as he did before.

After he warned defendant of trial’s inevitable outcome if a decision was left to him, and defendant acknowledged her understanding of that fact, Judge Flynn found defendant guilty of first-degree murder and sentenced her to a 35-year prison term. There is one other thing that adds to the remarkable nature of these proceedings. There was a lawyer present who assisted defendant in this course of action. These events raise two questions. The first is whether the proceedings meet the fundamental structural due process requirement to trial before an unbiased judge. See Tumey v. Ohio, 273 U.S. 510, 532, 71 L.

Ed. 749, 758, 47 S. Ct. 437, 444 (1927). The second is whether counsel’s performance was constitutionally deficient. See United States v. Cronic, 466 U.S. 648, 659, 80 L. Ed. 2d 657, 668, 104 S. Ct. 2039, 2047 (1984). We decide the case on the latter question. This was not a guilty plea even though defendant’s surrender to a forewarned outcome resembled such a plea. Defendant did not forego the rights afforded her under a plea of not guilty. This was a trial, albeit an expedited one. The State defends it.

It argues that it constituted a fair trial wherein the judge was free to decide guilt or innocence based upon stipulated evidence taken at the first trial. The State also defends counsel. It points out that stipulated bench trials are routinely used as sound strategic tools by criminal defense attorneys. While this is certainly true, it serves only to raise the paramount question that abounds. How did counsel strategically employ a stipulated bench trial to assist his client in this case? He proceeded without concession from the State in return for the stipulation.

Moreover, he did not file a posttrial motion, a step he surely would have taken if his purpose was to preserve error from the first trial for appellate review. The errors that might have occurred at the first trial now lay forfeit to counsel’s inaction. See People v. Enoch, 122 Ill. 2d 176, 185-86, 522 N.E.2d 1124, 1129 (1988); People v. Szabo, 113 Ill. 2d 83, 93, 497 N.E.2d 995, 999 (1986).

The Supreme Court has instructed as follows: “Unless the accused receives the effective assistance of counsel, ‘a serious risk of injustice infects the trial itself.’ [Citation.] Thus, the adversarial process protected by the Sixth Amendment requires that the accused have ‘counsel acting in the role of an advocate.’ [Citation.] The right to effective assistance of counsel is thus the right of the accused to require the prosecution’s case to survive the crucible of meaningful adversarial testing.

When a true adversarial criminal trial has been conducted — even if defense counsel may have made demonstrable errors — the kind of testing envisioned by the Sixth Amendment has occurred. But if the process loses its character as a confrontation between adversaries, the constitutional guarantee is violated.” Cronic, 466 U.S. at 656-57, 80 L. Ed. 2d at 666, 104 S. Ct. at 2045-46. Here, the trial process failed to resemble a confrontation between adversaries. Surely counsel knew what was going to happen when he pursued the course taken.

The same judge who previously convicted his client of first-degree murder was asked to decide the case again based upon the same evidence. If any suspense as to outcome existed, the trial judge’s candor about his own predisposition to convict ended it. We can perceive of no apparent purpose in the decision to proceed in the manner employed other than to ease the prosecution’s task and to expedite conviction. The State addresses our concern by noting that defendant’s first attorney put the prosecution’s case to a meaningful adversarial test. With this, we wholeheartedly agree.

A review of the original proceedings reveals that defendant’s first attorney handled her defense in a highly competent fashion and presented a legitimate question as to the degree of defendant’s guilt. Defendant’s first attorney made a plausible plea for a verdict of involuntary manslaughter. The State draws upon defendant’s original defense to argue that counsel in these proceedings did not surrender an adversarial role.

The State contends, “If counsel reasonably deemed that the first trial contained all of the evidence necessary to adequately present the defendant’s case, then his election to speak no further cannot be considered an abdication of his role as an advocate of the defendant.” With this, we cannot agree. Although the original defense and its test of the State’s case was quite competent, it was clearly unsuccessful. Judge Flynn was unpersuaded by the effort.

If defense counsel “reasonably deemed that the first trial contained all of the evidence to adequately present the defendant’s case” and elected to speak no further for that reason, his conduct was truly egregious. If he believed that the transcripts presented an adequate defense, he needed to present that defense to someone other than a judge who he knew was predisposed to rule it out. This defendant was granted a rare and fortuitous opportunity. The state of the law when she presented her first appeal allowed her to escape Judge Flynn’s original judgment.

She was granted the chance to present her defense to a different trier of fact — one that might have viewed the evidence differently. She was also granted the chance to obtain a different judge’s view of appropriate punishment. This opportunity afforded itself without risk of any punishment more severe than 35 years. But defense counsel failed to seize upon defendant’s good fortune. As far as we can see, he simply cast it to the wind. We are at a loss to find the advocacy in counsel’s work. The only conceivable strategy we can attribute is hardly a sound one.

If the plan was to ease the State’s path to conviction in order to win favor from Judge Flynn at resentencing, counsel either did not hear or chose not to take heed of Judge Flynn’s admonitions. Judge Flynn rattled several warnings of the poison that lay in store for defendant if she persisted in the course taken. Although he advised that he would order a new presentence report, he clearly pointed out that the new report was not likely to contain the kind of changes that would alter his view of punishment.

Moreover, if such an ill-conceived tactic ever existed, a review of the subsequent sentencing hearing reveals that not one word was said to pursue it. After defendant’s original trial ended, Judge Flynn set forth the reasons for his decision in great detail. At the original sentencing hearing, he articulated in similar fashion why he thought a 35-year prison term was justified. Counsel had only to read the transcript of these proceedings to gain an understanding that his pursuit of an expedited trial before Judge Flynn would spell certain doom for his client.

A judge who articulates in great detail his carefully considered reasons for a given punishment rarely changes his mind by later defying his own wisdom. Defense counsel went forward upon defendant’s plea of not guilty in a way that assured the inevitable result reached. Defendant received nothing in return for her surrender to certain conviction. In fact, she lost all of the issues preserved for review during her original trial. We believe that the constitution calls for more from trained professionals engaged in the adversarial system of justice than mere capitulation.

Lawyers are supposed to use their skills in an effort to do something helpful for their clients. The only person assisted in these proceedings was the prosecutor who reclaimed an earlier hard-fought conviction without concession and, more importantly, without any kind of defense. Because defendant was not afforded effective assistance of counsel, we reverse and remand for a new trial. Reversed and remanded. CHAPMAN, J., concurs.